R. v. Ayyad, 2013 ONCJ 184

COURT FILE NO.: 11-11114 DATE: 20130403 Citation: R. v. Ayyad , 2013 ONCJ 184 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — NADIA AYYAD Before Justice P.N.

Bourque Reasons for Sentence Released on April 3, 2013 Peter Westgate......................................................................................................... for the Crown Philip Norton.................................................................................... for the accused Nadia Ayyad BOURQUE J.: Overview [ 1 ] A young child, George Doodhnaught (“George”), died in what can only be described as mysterious and somewhat unclear circumstances.

This Defendant, along with the child's father, then disposed of the child's remains in a most disgraceful manner, and then this Defendant took steps to mislead the police, who were frantically searching for the child. As a result of her (and the father'

s) actions, the location of the child's remains are unknown and the police can never be sure of the nature of the child's demise. Facts [ 2 ] The father of the child, Ricky Ray Doodhnaught (“Ricky Ray”), plead guilty before Justice Brown of the Superior Court in Newmarket to a charge under

section 182 (

b) of the Criminal Code and received a sentence of 30 months in custody, less time served. The facts of the offence presented to Justice Brown were virtually identical to the facts presented before me and they are attached and form

Schedule “A” to this Judgment. [ 3 ] I can summarize the pertinent facts as follows: 1. George Doodhnaught was born on September 27, 2011, to the Defendant and Ricky Ray Doodhnaught. The child was 6 weeks premature and suffered from a heart murmur and thrush, but both of these conditions had disappeared by the time the child was seen by Dr. Cannitelli, a paediatrician, on October 31, 2011. The Defendant and Ricky Ray had another son together; 2.

The Children's Aid Society (“CAS”) had concerns about the Defendant’s parenting skills and by agreement dated October 19, 2011; George Doodhnaught was given primary care of both children, with supervision rights to the CAS. There was a history of substance abuse by the Defendant and lack of prenatal care; 3. A CAS worker last saw the child was on Oct 26, 2011, at an address in Vaughan. The Defendant took the child to see Dr. Cannitelli on October 31, 2011; 4. The CAS tried to set up further appointments to see the child but the Defendant told the CAS several lies about her activities and whereabouts.

On November 10, 2011, CAS went to the Defendant’s residence only to be told the Defendant had moved out a week

prior. The CAS had no knowledge of where the Defendant or the child were; 5. On November 21st, the CAS applied for and received a warrant to arrest the child George and the Defendant's other child Ricky Ray Jr.; 6. After a brief phone contact with the Defendant, York Regional Police at the request of the CAS began a missing person’s investigation on November 22, 2012. It became a homicide and missing persons investigation on December 1, 2012; 7. The Defendant was traced to the Comfort Inn in Toronto but on November 24th when the police attended, the Defendant had just left; 8.

On November 24th the Defendant’s spouse, Ricky Ray Doodhnaught led the police on a high speed chase and he eventually stopped the vehicle and let the Defendant and the child Ricky Ray Jr. out of the vehicle and he sped off. The Defendant told the police that the child George was with her spouse's aunt; 9. On December 6, 2012, the police attended the residence of this aunt. The child George was not there, but the spouse of the Defendant was apprehended there. The Defendant and the spouse are interviewed by the police but neither reveals the true whereabouts of the child George; 10.

On December 9, 2012, the spouse finally tells the police the following: (

a) the child George died a day or two after Halloween; (

b) The child had been brought into the bed where the Defendant and the spouse had been sleeping and early in the morning they discovered the child was not breathing. They tried to revive the child but were unable to. They did not seek any assistance. They put the child in their van with their other child and drove around, not knowing what to do. Eventually, they put the child in a disposal dumpster behind a Mac's milk store; (

c) they disposed of the child's car seat and sold his crib; (

d) the police have attempted without success to locate the remains of the child George. The remains are probably under several layers of compressed fill at a waste disposal site. There are no reasonable prospects that the remains will ever be found, and even if they had been able to locate the remains, there was little chance after the passage of time that a successful post mortem could be undertaken.

The Defendant [ 4 ] The Defendant has a criminal record consisting of 4 sentencing and 6 convictions. [ 5 ] The following are the personal circumstances of the Defendant: Age 24 years old Education Up to grade 8 - has got her secondary school diploma in custody Work history very little other than in the context of drug abuse and abusive relationships drug abuse extensive and a large part of her life up to and including the commission of this offence. family supports Exhibit 4 is a letter from New Life Girl's Home, which is an in-resident facility which is available to the Defendant.

It offers considerable supports for her long term rehabilitation. There is information that the Defendant has recently reconciled with her family. Other She assisted the police while in custody with regard to a serious investigation of another prisoner. Principles of Sentence [ 6 ] Sec 718 of the Criminal Code sets out those principles that I should consider: 718 .

The fundamental purpose of sentencing is 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; (

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 and to the community.

718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [ 7 ] The offence is such that, while all principles must be respected, the community would insist that denunciation and deterrence be an important consideration. The offence, as stated properly by Justice Brown, constitute “horrific acts”. The infliction of an indignity to the remains of a child is a repugnant and shameful act. The misleading of the police compounds the indignity. We will never be able to satisfy ourselves as to the cause of the untimely death of this child.

The Law [ 8 ] Reported cases in this area are all very fact specific. It is difficult to perceive any discernable range. In cases of the disposal of a deceased newborn, the courts have been prepared to be lenient in situations of extreme distress and confusion in the mind of the young mother. Conditional sentences in those circumstances have been imposed. Conversely, the disposal of a person where there are real suspicions of homicide have led to lengthy prison sentences. [ 9 ] All of the cases speak to the moral repugnance that society feels towards these indignities to human remains.

This is even more so when we are dealing with a helpless child. [ 10 ] I believe that this case requires a term of incarceration in addition to the time already served. Equality Principle [ 11 ] Ricky Ray Doodhnaught, the spouse of the Defendant, received a sentence of 30 months for these offences. He received a further three months consecutive for the offence of dangerous driving. Justice Brown's comments in that sentencing are very appropriate and similar to the considerations that I have here.

I thank him for his thoughtful characterization of the facts of this matter. [ 12 ] I believe that their culpability is similar and there is a principle of equality to be applied here. The Defendant Ricky Ray had outstanding criminal charges. He had a small criminal record. This Defendant has an unrelated criminal record. Part of his motivation was to escape arrest. This Defendant was motivated by her fear of the CAS. The Defendant Ricky Ray was the first to tell the police what had happened to the child. Both this Defendant and Ricky Ray have pleaded guilty to these offences.

Pre-trial Custody [ 13 ] This Defendant has spent some 15 months in pre-trial custody. As a result of the decisions in R. v. Hason [1] , R. v. Johnson [2] and the case of R. v. Summers [3] , I believe that I can consider an enhanced credit for pre-trial custody, based on several institutional factors, the most important of which is the lack of pre-trial remission of sentence on the same basis as post trial remission of sentence. The materials filed as Exhibit 3 (the Sentencing Book) provide sufficient information for me to grant enhanced credit.

I note that Justice Brown gave little pre-sentence credit to Ricky Ray Doodhnaught. In that, Justice Brown and I will disagree. [ 14 ] I am prepared to give an enhanced credit of 1.5 to one. Conclusion [ 15 ] In coming to an appropriate sentence I am aware of her difficult early life, her abusive relationships and her drug use. All have contributed to the downward spiral which led to the commission of this offence. I am also aware that the report of D.

Pallandi sets out that her risk “is modest for future antisocial behaviour provided, her substance abuse is under control and she avails herself of the support that is available to her” and “her prognosis is reasonably optimistic”. [ 16 ] Taking into account all factors, I believe that a range of sentence on both matters of between 24 and 30 months before considering pre-trial custody is appropriate. [ 17 ] The sentence is as follows: 1. For the offence of indignity to the remains of the child, 24 months in custody; 2. For the offence of obstruct police, 3 months in custody, consecutive to each other; 3.

The total on both counts is a sentence of 27 months with a credit for pre-trial custody of 23 months, for a net period of custody from this day forward of 4 months; 4. Following the period of custody, the Defendant will be placed on probation for 3 years as follows: Statutory Terms: (

a) Report to probation when and as required;

(

b) Take such counselling as recommended by your probation officer with regard to issues of : (

i) substance abuse; (ii) Life management skills including a parenting course; (iii) Execute a release of medical, psychiatric or other confidential information to his or her doctor or counsellor in favour of the probation officer so that they can discuss his or her progress; (iv) Live at an address approved by your probation officer; (

v) Non-association, non-contact directly or indirectly with: Ricky Doodhnaught; (vi) Not possess any weapons as defined by the Criminal Code ; (vii) Not possess any non-medically prescribed drugs; (viii) Maintain contact with the CAS society and advise whether she ever comes into the custody of a child and be amenable to CAS instructions; (ix) The Defendant will provide a sample of her DNA. Signed: “Justice P.N. Bourque” Released: April 3, 2013 [1] 2010 ONCJ 735 .