R. v. Henry, 2026 ONSC 83

R. v. Henry, 2026 ONSC 83

CITATION: R. v. Henry, 2026 ONSC 83

COURT FILE NO.: CR-24-30000132-0000

DATE: 20260108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

TAJAH HENRY

COUNSEL:

Adriana Moser and Bev Olesko, for the Crown

Janelle Belton, for Ms. Tajah Henry

HEARD: October 9 and November 13, 2025

KELLY J.

Reasons for SENTENCE

1On November 5, 2022, almost 15-month-old Mashiach Henry drowned in the bathtub of his home after his mother, Ms. Tajah Henry, left him unattended. Ms. Henry pleaded guilty to manslaughter. She now appears before me for sentencing.

2Crown counsel seeks a sentence of four years’ imprisonment. Counsel for Ms. Henry seeks a sentence of two years less one day to be served in the community (a conditional sentence). Counsel agree that Ms. Henry should provide a sample of her DNA.

3For the reasons set out below, I sentence Ms. Henry to three years’ imprisonment. In addition, Ms. Henry is ordered to provide a sample of her DNA.

The Facts

4The facts giving rise to the plea were set out in an Agreed Statement of Facts (“ASF”), including facts about the prior involvement of the Children’s Aid Society (“CAS”) regarding Mashiach. The ASF may be summarized as follows:

Background

5Ms. Henry was apprehended by the CAS at the age of seven, after her mother and stepfather were charged, and later convicted, of child abuse.

6While still a Crown ward, Ms. Henry became pregnant with her son, Mashiach. Ms. Henry turned 18 on July 17, 2021. She was no longer a ward of the CAS when Mashiach was born on August 7, 2021.

7The CAS immediately apprehended Mashiach after his birth. After 66 days, Mashiach was returned to Ms. Henry’s care with the continued involvement of the CAS. The CAS was still involved up until the time of Mashiach’s death.

Prior care of Mashiach by Ms. Henry

8The CAS remained involved with Mashiach after he was returned to Ms. Henry. This involvement included home visits. Some incidents, referred to in the ASF, may be summarized as follows:

a. On November 2, 2021, when Mashiach was approximately three months of age, Ms. Henry placed him on a chair while she was packing a suitcase nearby. She stepped away for one second and Mashiach slipped through the chair arm rests. Ms. Henry called 911 immediately. Paramedics advised that he appeared fine but brought Mashiach to the hospital where he was monitored for six hours. He was released with no medical concerns. Ms. Henry advised CAS of the incident. CAS provided Ms. Henry with a playpen to use when she needed to step away from Mashiach.

b. In January 2022, when Mashiach was approximately 5 months of age, Mashiach rolled off the bed while Ms. Henry was eating lunch next to him. Ms. Henry called 911 and informed CAS. Paramedics advised that Mashiach appeared fine but brought him to the hospital to be seen by a doctor. Mashiach was released with no medical concerns. Ms. Henry agreed not to leave Mashiach unattended, even for short periods of time, and to use the playpen if she needed to step away.

c. Ms. Henry was cautioned multiple times by CAS about not leaving Mashiach unattended.

Events of November 5, 2022

9The events of November 5, 2022, and included in the ASF, are summarized as follows:

a. Ms. Henry called 911 at approximately 4:26 p.m. on November 5, 2022. She told 911 that her baby was left unattended in the bath.

b. At the beginning of the call, Ms. Henry said: “My son drowned”, “My son is turning blue”, as well as “He’s not breathing. He was under the water.”

c. At approximately 1 minute, 35 seconds into the call, the dispatcher asked Ms. Henry if her son was breathing. She responded: “I don’t think so” and then stated that she did not know how to do CPR.

d. As the 911 dispatcher directed Ms. Henry back to her son, at 2 minutes, 51 seconds into the call, Ms. Henry said: “I think he’s breathing. I feel something coming out of his nose.” She then said, at 3 minutes, 22 seconds into the call, “I feel a hot breath coming out of his nose.” Although she said he was breathing, she could not see his chest rise when the dispatcher asked.

e. The dispatcher then said she would explain how to do mouth-to-mouth resuscitation, but Ms. Henry said she couldn’t because she was going to be sick. About 15 seconds later, Ms. Henry did attempt mouth-to-mouth but said nothing was happening.

f. At 5 minutes, 20 seconds into the call, the dispatcher talked Ms. Henry through a second attempt at mouth-to-mouth resuscitation and Ms. Henry thought she had done it successfully. At 6 minutes, 4 seconds into the call, Ms. Henry stated water was coming out of Mashiach’s mouth and nose, but she still could not feel air going in and out. At 6 minutes, 17 seconds into the call, the dispatcher started to explain how to do CPR.

g. Ms. Henry later told PC Eckersall that she did not do CPR because she did not know how and thought she was going to hurt Mashiach.

h. Police arrived at the apartment first, followed seconds later by Toronto Fire and EMS, at 4:32 p.m.

i. When they arrived, Mashiach was on the floor in the hallway, outside of the bathroom. The first police officer immediately started CPR.

j. Less than a minute later, Mashiach was moved to the bedroom to have more room to work on him. When he was lifted from the floor, water came out of his nose and mouth.

k. EMS continued life-saving measures at the apartment until transporting Mashiach to hospital at 4:53 p.m. They continued those efforts in the ambulance during transport.

l. Mashiach never regained a heartbeat. He was declared deceased after further treatment at Scarborough General Hospital.

m. Dr. Liza Boucher, a forensic pathologist, determined that the cause of his death was drowning.

Ms. Henry’s Utterances to First Responders

10The responding officers wore body-worn cameras, and they captured Ms. Henry’s utterances. Ms. Henry also spoke to the responding paramedics. On the way to the hospital, she said the following to PC Eckersall:

a. Mashiach had been sick. His symptoms included stuffiness and a cough. Ms. Henry put him in the tub “for the steam”.

b. The water was warm, not hot; Mashiach did not like hot baths.

c. She then closed the door, leaving it open slightly. She put her headphones on, they were on low, and she started to clean the apartment.

d. She went to check him after five to ten minutes.

e. When she got to the tub, Mashiach was on his back, under the water.

f. She took him out of the tub and started pushing his chest, but she thought she was doing it wrong. She then called 911.

11Ms. Henry gave a statement at the hospital to officers where she stated that she left Mashiach alone in the tub.

The Bathtub

12Officers from the Forensic Identification Service took photos and measurements of the water level in the tub. They found as follows:

a. The tub was filled to the bottom of the overflow drain. The water level was 3.58 inches below the ledge of the tub. The water level was 10.8 inches in the middle and 10.5 inches at the ends.

b. There was no mat in the tub nor any type of bathing chair or support for Mashiach.

Mashiach

13During the post-mortem examination, Dr. Boucher took Mashiach’s measurements:

a. He weighed 9,220 grams (20.3 pounds);

b. He was 80 cm in length (31.5 inches); and

c. His “crown rump” length (top of his head to his tailbone) was 54 cm (21.25 inches).

14At the time of his death, Mashiach was not yet walking.

Ms. Henry’s Background

15A report entitled “Impact of Race and Culture Assessment for Ms. Tajah Henry” was produced and filed as part of the sentencing proceeding. As stated in the introduction, the report was prepared to “inform sentencing by contextualizing Ms. Henry’s experiences and identifying socio-structural and personal factors that may have contributed to her involvement with the legal system”. This report was supplemented by records of the CAS.¹

16While I have considered the entirety of the detailed report, I will briefly address some of the topics addressed.

Family Background

17Ms. Henry is currently 22 years of age. She was born on July 17, 2003. Both parents are of Jamaican ancestry. Until the age of seven, she was raised, mainly, by her mother and saw her father infrequently. She was neglected and abused by her mother, her mother’s boyfriend and her grandmother. Her mother struggled with substance abuse.

18The CAS became involved with Ms. Henry, and she became a Crown ward. She was in the foster care system between the ages of 7 and 17. Ms. Henry has had very limited contact with her parents.

19Ms. Henry reports that she has 15 siblings: 10 paternal half-siblings and five maternal siblings. Ms. Henry has a relationship with her twin siblings (age 19). She checks in with them regularly. She has limited contact with extended family members.

20Ms. Henry had one son, Mashiach. She reported that she loved him deeply and attended to his needs, including his medical needs. She described herself as “vigilant” as a new mother, “wanting to ensure that her child was well cared for”.

Race and Culture

21Ms. Henry identifies as Jamaican and Canadian. She described her experience as a Black woman in Toronto as confusing. She explained that she “understands she is Black” but does not often think about her racial identity because she does not “hold [her] identity in [her] race”. However, in certain environments, she is treated differently and must remind herself that she is Black. She says that it is difficult to determine if someone is being racist or simply dislikes her personally. The examples she provided for this were, “being denied service on the bus, experiencing rough treatment from police officers, and receiving rude comments”.

22Ms. Henry reports that she has personally experienced racism. She says that she has been called the N-word several times. She has been referred to as the “whitest Black person”. She has felt that some people were “not inclusive or sensitive to her cultural needs”.

Residential History

23Ms. Henry grew up in various government residential housing homes in Toronto with her mother. However, she and her siblings spent a significant amount of time in her grandmother’s apartment as she was the primary caregiver when her mother went out. Ms. Henry did not recall the specifics of the neighborhoods in which she lived.

24When Ms. Henry became a ward of the state, she was placed in a foster home in Brampton. The couple was Black, and she described them as “sweet”. However, she believed that the couple was “in over their heads” and not equipped to deal with children experiencing significant trauma. She remained in the home for two weeks. She was separated from her siblings.

25Ms. Henry could not recall all her placements but described “survival” as her primary focus. She tried to resume living with her siblings but states that she was rejected because of her behaviors that included “swearing, breaking things, and tantrums”. She did, however, see her siblings monthly through visits at foster homes and CAS offices.

26Ms. Henry described other short stays in foster homes and a brief stay in an overnight emergency home. She resided in a group home on Yonge Blvd. for a period of eight months. Although there were “ups and downs”, she appreciated the opportunity to live like a child, taking day trips, celebrating holidays and playing video games.

27Ms. Henry lived in “Little House” in Smithville. Ms. Henry described this as having conditions similar to that of a foster home and group home. Ms. Henry said that one of the owner’s mistreated her by “lying, manipulating, shoving her into closets, and threatening to call the police”. Ms. Henry resided at Little House for four years, until the age of 12, when she was “reassigned”.

28Ms. Henry then moved to “Hatts Off Child, Youth and Adult Treatment Services” in Kitchener-Waterloo. She lived there for about one year, enjoying the freedom the staff permitted.

29The next move was to Craigwood Children, Youth and Family Services in Ailsa Craig, Ontario. This was a location with both housing and a detention centre. She lived in a house and then was transferred to the detention centre until a new placement was found for her. No explanation was provided as to why Ms. Henry was placed in the detention centre.

30At 14 years of age, Ms. Henry was transferred to Moberly in Toronto. She did not enjoy living there because of the “rigid rules and lack of free time”. She was moved to another home, run by the same organization on Kingston Road in Scarborough. She liked this facility because it “exposed her to a different lifestyle”. She moved thereafter to TLK Residential Services in Brampton. She was 15 years old at the time and she “hated” it.

31At age 16, Ms. Henry lived alone in a house under an Independent Service Agreement. She was placed there because staff judged her as challenging to live with in a home with others. There were two staff members who rotated their shifts daily. She felt lonely and abandoned. She felt mistreated by staff, “reinforcing her belief that CAS workers did not care about her well-being”.

32At age 17, Ms. Henry became pregnant. She gave birth at 18. She was placed in an apartment under an independent living program supported by the CAS. She stayed there for several months before transitioning to shelters for about one year due to housing shortages. Currently, Ms. Henry lives independently in her own apartment in Peel Region. She has a dog.

33The author of the report concluded this section as follows:

Overall, Ms. Henry’s residential history reflects extensive placement instability, frequent disruptions in care, and experiences of neglect and mistreatment that contributed to her sense of isolation and mistrust toward CAS.

Education

34Ms. Henry does not recall much about her schooling. Her first recollection of attending school was in grade 2. Teachers noticed various injuries on her and her siblings. Police became involved and they were placed in foster homes.

35Ms. Henry also recalled attending Gainsborough Public School in Bismarck, Ontario. She did so from ages 8 to 14. While she remembered writing poetry, attending gym class and movies, she also remembered being stabbed with a pencil and being struck in the face with a hockey stick. She developed a friendship with another student whose family was kind. The family attempted to foster Ms. Henry, but the placement ended due to a misunderstanding.

36In high school, Ms. Henry skipped classes due to frustration with the subject matter. On occasion, she failed to complete assignments. Other times, she fell asleep because she was exhausted and depressed. She did not make friends, explaining that “[w]hen you are focused on surviving each day, you really don’t care about friends”.

37The report provides that due to her pregnancy and lack of motivation, Ms. Henry quit school, resulting in a four-year break. In 2024, she enrolled in the Academic and Career Entrance program at George Brown College. She found the program difficult to sustain while living in a shelter. She hopes to retake the online version of the course, but the cost is prohibitive.

38Ms. Henry is currently interested in psychology. She hopes to help others. She believes that her lived experiences will provide her with a perspective of empathy and resilience.

39In addition to the material contained in the report, a letter was provided to the Court regarding Ms. Henry’s educational endeavors. Ms. Karen Meinzer is the Program Manager, LBS with ptp Adult Learning and Employment Programs. She provided an email describing the learning plan for Ms. Henry, including taking the CAEC tests and participating in a “Learning Together” project. The goal is to attend the Transitional Year Program at the University of Toronto. Alternatively, she is considering attendance at Toronto Metropolitan University, if it is the appropriate fit.

Relationships, Bonds and Networks

40Ms. Henry explained that she does not have a community of people for support and friendship. She explains that this is due to her transiency. She does not have contact with her former foster parents, social workers, parents or biological family members, but for her twin siblings. She has come to accept this and finds that spending time alone is “quite pleasant”. That said, she added that it would be “nice” to have someone to “call on”.

Employment and Financial History

41Ms. Henry was employed intermittently in the past. Her employment included serving food at weddings and banquets; plating food and operating a cash register in a restaurant; serving at Tim Hortons; as a sales development representative at a technology start up; fundraising sales; and door-to-door sales. Ms. Henry has observed that she works hard “when she enjoys her job and feels it makes a difference”. She has also concluded that she does not wish to rely on government aid as her parents have done. She wishes to become financially independent.

42Currently, Ms. Henry receives support though the Ontario Disability Support Program and the Development Services Ontario Passport Program which helps with activities and some living expenses. Additionally, she receives a housing subsidy.

Physical and Mental Health

43Ms. Henry reports that she has been diagnosed with the following:

a. Attention-deficit hyperactivity disorder (ADHD), at age nine;

b. Depression;

c. Oppositional defiant disorder; and

d. Developmental or learning disability.

44Ms. Henry also described that she has engaged in self-harming behaviour (cutting) and has used alcohol as a coping strategy. She has declined to take medications such as lithium and risperidone. She feels that she has been “over-diagnosed”. She believes that some behaviours can be attributed to “environment responses to unstable and traumatic care settings rather than inherent personality traits”.

45Since the death of her son, Ms. Henry has been depressed and suffered a decline in her mental health. She became homeless for a period and relied on alcohol to cope. She reported a suicide attempt, feeling there was no way out. She is improving but recognizes that this is a process.

Trauma

46Ms. Henry describes her upbringing as traumatic. She was beaten by both her mother and her mother’s partners. These beatings included being struck with wires, cords, belts and hands. The beatings could be triggered by very little.

47Ms. Henry believes that her involvement in foster care did “more harm than good”. Workers dismissed her reports of abuse. Her requests to be moved were ignored. She reported experiencing “gaslighting, emotional abuse, manipulation and physical mistreatment while in placements”. She felt abandoned and manipulated. There was a loss of trust in her caregivers.

48Ms. Henry advised that she was sexually assaulted by the father of her child and by an unknown man who assaulted her while she slept. The father of her child was charged but he accepted a plea.

49After the birth of her own son, the authorities removed him from her care. She feels that she was “framed” as an “unfit parent”. She believes that these judgments were “distressing” and “unfair”.

Collateral Sources

50Ms. Henry’s sister, Ms. Jada Clarke Caboni, and her friend, Mr. Jermaine Jack, were interviewed as part of the report. Their comments may be summarized as follows:

Ms. Jada Clarke-Caboni has not lived with Ms. Henry since age three. Despite her young age, Ms. Clarke-Caboni recalls Ms. Henry being a loving and supportive sister through the turbulent time of abuse in the home. They reconnected. They have a good relationship, engaging in meaningful and supportive conversations. Although she describes Ms. Henry as “complicated”, she also describes her as having a “big heart”.

Ms. Clarke-Caboni commented that race and systemic racism have played a significant role in Ms. Henry’s life. She believes that workers and institutions dismissed her needs and treated her differently. Ms. Henry experienced racism in housing, shelters and healthcare. This has resulted in Ms. Henry being “guarded, expecting negative outcomes, and unable to fully experience the world as others do”.

Mr. Jermaine Jack is a friend. They met at work and have known each other for two to three years. He described that they have a good relationship although they no longer work together or speak to each other as often. He describes her as funny, laid back, honest and straightforward. He believes that her new apartment has provided stability as well as the ability to care for her dog. That said, he believes that Ms. Henry’s unstable upbringing has left her feeling resentful and mistrustful.

Letters of Support

51Letters of support were filed on behalf of Ms. Henry. They may be summarized as follows:

Mr. Elijah Clarke-Caboni is Ms. Henry’s younger brother. He describes Ms. Henry as a protective older sister. She took care of both him and his twin sister. He describes the passing of Mashiach as having a profound impact on their family. They share grief that is difficult to discuss although they try to support each other. They wish to remain a close-knit family.

Ms. Jada Clarke-Caboni is Ms. Henry’s younger sister (as I have described above). She describes that Ms. Henry took care of her when their own mother was absent or unable to care for the children. She describes that Ms. Henry “took on responsibilities no child should have to carry”. Ms. Henry often took the blame for conduct that permitted her to escape abuse. It was Ms. Henry who had the courage to “speak up” and get the children out of the abusive home. Ms. Clarke-Caboni has grown up to attend university and attributes her success to Ms. Henry. She described Ms. Henry as a loving mother. Mashiach’s death has been devastating. She wants them to heal together.

52Ms. Henry provided a letter to the Court. Amongst other things, she said the following:

a. That the death of her son was the worst day of her life. Each time she comes to court, she must relive that day.

b. She is haunted by the guilt of her own negligence. Looking at his pictures causes her heartbreak and to be physically ill.

c. She wanted to give her son the life she never had. She did everything she knew to “keep him safe and healthy”. She said that she was dedicated and wanted to provide a “quality life” for Mashiach.

d. She was excited for their future together and misses him daily.

Victim Impact Statements

53There were no Victim Impact Statements filed.

The Legal Framework: Sentencing

54The following is a summary of the legal principles applicable in sentencing Ms. Henry.

a. General Principles

55In determining an appropriate sentence for Ms. Henry, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

56Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality assesses the gravity of the offence, the degree of the offender’s responsibility and the circumstances of the case.²

57The sentencing judge must also have regard to the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).³

b. Offences Involving Children

58Section 718.01 deals with offences committed against children. It provides that, “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence.” Further, and pursuant to s. 718.2, the court shall also take into consideration as aggravating, the fact that the person abused was a member of the offender’s family (s. 718.2(a)(ii)); the fact that the person abused was under the age of 18 (s. 718.2(a)(ii.1)); and that the offender abused a position of trust or authority in relation to the victim (s. 718.2(a)(iii)).

59Because this case involved the death of a 15-month-old child, I have borne in mind the message sent by the Supreme Court of Canada in R. v. Friesen when dealing with offences against children.⁴ Sentences involving the abuse of children must increase. Although that case dealt with sexual offences against children, the principles are equally applicable in dealing with offences involving the abuse of children. In particular, I take guidance from para. 134 of Friesen that provides as follows:

The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose ‘dependency is usually total’ and who are ‘often helpless without the protection and care of their parents’ (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66). …

c. The Range: Manslaughter

60The maximum sentence for manslaughter is life imprisonment.⁵ However, there is a wide variation in the sentences imposed for manslaughter.⁶ This reflects the broad range of circumstances that can give rise to a manslaughter conviction. The circumstances of the offence and the offender’s moral culpability vary greatly. Manslaughter can range from an unintentional killing to a killing that approaches murder.

61To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Lamer C.J.’s caution that “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction”.⁷

62The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process, driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the appropriate range of sentence and the principles that must guide my decision.

63Counsel provided precedents dealing with the death of a child and relevant to the issues before me. I have reviewed all of them.⁸ The sentences imposed for the death of a child due to neglect range from an intermittent sentence of 90 days to six years’ imprisonment. The divergence in sentence is because the nature of the crimes committed, and the circumstances of the offender vary. I also observe that most of the cases provided were decided before the Supreme Court of Canada decided Friesen.

64Sentencing ranges, similar to those provided by counsel, are helpful guides for sentencing judges, but they are not “straitjackets”, depriving judges of their ability to impose sentences that reflect both the circumstances of the offence and of the offender.⁹

d. Conditional Sentences

65Sections 742.1(a) and (b) of the Criminal Code establish that a conditional sentence is available in this case if the court imposes a sentence of less than two years and provided that:

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

b) the offence is not an offence punishable by a minimum term of imprisonment; ….

66A conditional sentence can, in some circumstances, adequately address the objectives of denunciation and deterrence. This is particularly so when the conditions have a significant punitive element. However, there will be some circumstances in which the demands of denunciation and deterrence are so pressing that incarceration is the only suitable disposition.¹⁰

67I will turn now to consider the aggravating and mitigating circumstances of this case.

Analysis

68I find the following to be the aggravating factors:

a. There is no question that Ms. Henry was warned of, and aware of the risk of leaving her son unsupervised. This first occurred when Mashiach fell off a chair at three months of age; and again, when he fell off the bed at five months of age.

b. The ASF also provides that Ms. Henry had been cautioned, on numerous occasions by the CAS, about not leaving her son alone.

c. Despite the two incidents described above, two trips to the hospital and the advice of CAS, Ms. Henry left Mashiach unattended on November 5, 2022, in a bathtub that was almost full of water without any apparatus to keep him from being submerged in the water. And she did so for a greater length of time than the previous two incidents (i.e., five to 10 minutes). She closed the door, leaving it slightly ajar, put on her headphones and cleaned her apartment, a task that was neither pressing nor urgent.

d. Mashiach, as a 15-month-old child, was significantly vulnerable and defenseless in the situation. He was unable to walk. The fact that Ms. Henry donned headphones likely prevented her from hearing a gasp or even a splash (if either occurred) as Mashiach became submerged under the water. Mashiach was completely dependent on his mother to be protected in the circumstances. She failed him.

e. Mashiach suffered the ultimate consequence of his mother’s neglect: death. The harm caused is devastating and irreparable.

f. It is statutorily aggravating that Mashiach was under the age of 18 and Ms. Henry abused a position of trust as his mother.

69I find the following to be the mitigating factors:

a. Ms. Henry called 911 immediately after having discovered Mashiach in jeopardy, as she had done in the past.

b. Ms. Henry pleaded guilty, which is a sign of remorse.

c. Ms. Henry has expressed her remorse, which I accept as sincere.

d. Ms. Henry has been deeply affected by the loss of her son. Her emotional upset is significant.

e. Mashiach’s death has had a significant effect on Ms. Henry’s siblings. Losing him has been devastating for the family in general. The pain is “raw”.

f. Ms. Henry has the support of her siblings.

g. It is commendable that Ms. Henry intends to pursue her education. She is living independently and caring for a dog.

h. Ms. Henry has been on bail without incident. She does not have a criminal record.

i. Ms. Henry has had a horrible upbringing, as I have described above.

70Counsel for Ms. Henry submits that I should take judicial notice of, and consider the factors set out in the decision of R. v. Morris¹¹ in mitigation of Ms. Henry’s sentence.

71Many years before the Morris decision, Ontario courts recognized that, “[r]acism, and in particular anti-black racism, is a part of our community’s psyche”.¹² I accept that racism in Toronto (and elsewhere) exists. I also accept that Ms. Henry has been affected by it in her life.

72That said, Morris, at para. 97, also held that there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: without such a connection, mitigation “becomes a discount based on the offender’s colour”. Our law does not recognize such a discount.¹³

73There must be some link between Ms. Henry’s experience with systemic racism and the offence she has committed to mitigate her sentence. The link need not be causal, but there must be some connection to mitigate Ms. Henry’s moral culpability. The court must meaningfully consider the social context evidence to understand Ms. Henry’s degree of responsibility.

74Based on the documentation provided, and the agreement of both counsel, I accept that there is some connection between the systemic racism identified in the community and the circumstances that explain Ms. Henry’s conduct in this case. It is a mitigating factor.

The Fit Sentence

75The Court is faced with a difficult decision. The circumstances of this offence, the death of a small child by drowning due to the inattention of his mother, call for a term of incarceration. On the other hand, the personal circumstances of Ms. Henry suggest that incarceration is not necessary. I am required to balance these competing concerns.

76The gravity of the offence is significant. It was objectivly foreseeable that by leaving 15-month-old Mashiach unattended for five to 10 minutes in a bathtub filled with water posed a risk of bodily harm that was neither trivial or transitory. Ms. Henry’s conduct fell below the standard expected of a reasonably prudent parent in the circumstances.¹⁴ The neglect and death of a helpless child is a serious offence. The consequences of a parent’s inattentiveness, resulting in the death of a helpless child are devestating. This was a significant breach of trust by a parent.

77Ms. Henry’s moral blameworthiness is high, despite her age (19 at the time) and her upbringing (involving trauma and neglect). Ms. Henry had been advised, on several occasions, not to leave Mashiach unattended, yet she did so. While Ms. Henry was concerned about Mashiach’s health, she left her 15-month-old son unattended in a bathtub, filled with water, without supervision or support. He was unable to walk. He was unable to protect himself against drowning. Mashiach was totally dependent on his mother. She failed him. She must be held accountable.

78Ms. Henry is a young woman with no criminal record who has committed a very serious offence. Parliament has legislated that the principles of denunciation and deterrence are paramount in cases such as this one which involved harm to a child. However, rehabilitation must still be considered. This is particularly so when dealing with youthful offenders such as Ms. Henry, with her background and her aspirations for her future. I recognize that a sentence of incarceration will result in the loss of her apartment and the need for others to care for her dog. I also understand that although Ms. Henry does not provide for her siblings, incarceration will make connecting with them more difficult.¹⁵

79I have considered the principles of restraint set out in ss. 718.2(d) and (e) of the Criminal Code. These principles of restraint are to be considered both when deciding whether a custodial sentence is appropriate, and if it is, in determining the length of that sentence.¹⁶

80I have considered the imposition of a conditional sentence order. The offence of manslaughter is not punishable by a minimum term of imprisonment. I am also satisfied that the safety of the community would not be endangered by Ms. Henry serving her sentence in the community. The remaining factor, that the court impose a term of imprisonment for less than two years, is the significant issue I must resolve.

81I am satisfied that the objectives of denunciation and deterrence require the incarceration of Ms. Henry. The imposition of a conditional sentence, in these circumstances, would not be consistent with the fundamental purpose and principles of sentencing as provided in s. 718 of the Criminal Code (as set out above).

82In reaching my conclusion about a fit sentence, I am also mindful of the fact that this is Ms. Henry’s first visit to the penitentiary (or jail of any kind) and of the direction of Rosenberg J.A. in R. v. Borde,¹⁷ that a “first penitentiary sentence should be as short as possible”.

83Mashiach’s death could have been avoided. The sentence imposed for Ms. Henry’s conduct must deter others and therefore, must be a strong denunciatory sentence.

84In my view, the appropriate sentence in this case is three years’ imprisonment. This sentence accounts for the aggravating and mitigating circumstances. It meets the objectives of deterrence and denunciation, while not ignoring rehabilitation.

The Sentence Imposed

85Ms. Henry is sentenced to three years’ imprisonment for the offence of manslaughter.

86Manslaughter is a primary designated offence within the meaning of s. 487.04(a) of the Criminal Code and accordingly, a DNA order is mandatory. Therefore, I direct that Ms. Henry provide a sample of her DNA.

Kelly J.

Footnotes

1. 1The CAS records were sealed on consent.
2. 2R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 12.
3. 3See R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 41.
4. 4R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.
5. 5Section 236(b) of the Criminal Code.
6. 6R. v. Kehl, 2019 ONSC 7561, at para. 37; R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569, 158 O.A.C. 36 (C.A.), at para. 10.
7. 7R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 92.
8. 8R. v. E.W., 2019 ONCJ 788; R. v. Matthews, 1998 5252 (Ont. C.A.); R. v. Da Silva, [2005] O.J. No. 2389 (S.C.), aff’d (2005), 2005 46380 (ON CA), 203 C.C.C. (3d) 1, 205 O.A.C. 193 (C.A.); R. v. Siconolfi, 2015 ONCA 896; R. v. Hanson, 2022 ONSC 419; R. v. Camire, 2009 MBQB 226, 244 Man. R. (2d) 270; R. v. Panfilova, 2017 ONCJ 326; R. v. Simons, 2018 ABPC 100; R. v. Laberge, 1995 ABCA 196, 165 A.R. 375; R. v. Nickel, 2012 ABCA 158; R. v. Hariczuk, [1999] O.J. No. 3110 (C.J.); R. v. Hanson, 2022 ONSC 419.
9. 9R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57.
10. 10R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 41, 106.
11. 112021 ONCA 680, 159 O.R. (3d) 641.
12. 12R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.), at p. 342.
13. 13Morris, at para. 97.
14. 14R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at pp. 73-74.
15. 15R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, paras. 44-45.
16. 16Morris, at para. 112.
17. 17(2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 3; R. v. Hoang, 2024 ONCA 361, 172 O.R. (3d) 97, at para. 78.