2017 ONSC 591, 2017 ONSC 591

File No. 13-7668 CITATION : R . v. S.D. , 2017 ONSC 591 SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. S.D. R E A S O N S F O R S E N T E N C E DELIVERED BY THE HONOURABLE JUSTICE R. MARANGER on January 18, 2017, at OTTAWA, Ontario APPEARANCES : M. Boyce M. Dufort Counsel for the Crown A. London-Weinstein Counsel for S.D. SUPERIOR COURT OF JUSTICE

SUPERIOR COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR SENTENCE 1 Transcript Ordered: January 19, 2017 Transcript Completed: January 19, 2017 Approved by Maranger J.: Ordering Party Notified: WEDNESDAY, JANUARY 18 TH , 2017 R E A S O N S F O R S E N T E N C E MARANGER J. (Orally): Overview/Introduction [ 1 ] D.D. and S.D. are the parents of A.J.D. They stood trial on a multi-count indictment for the following offences committed against their son: D.D. and S.D. stood jointly charged that, between September 1, 2012 and February 12, 2013, they committed three counts of aggravated

assault and one count of forcible confinement. D.D. was further charged that, between those same dates, he committed sexual assault causing bodily harm, failed to provide thenecessaries of life, assault with a weapon, namely handcuffs, assault with a weapon, namely a wooden stick, assault with a weapon,namely a barbecue lighter, careless storage of a firearm, and careless storage of ammunition.

S.D. was further charged that, between the same dates, she failed to provide the necessaries of life, and committed assault with a weapon,namely a wooden spoon. [2] On November 21, 2016, following several weeks of trial spread out over 10 months, I found S.D. not guilty of the unlawfulconfinement charge and of the aggravated assault charges.

She was found guilty of failing to provide the necessaries of life, and of the count of assault with a weapon. [3] D.D. was found guilty of nine offences, including two counts of aggravated assault, one count of assault with a weapon, onecount of sexual assault causing bodily harm, one count of unlawful confinement, one count of failing to provide the necessaries of life,and two counts relating to the improper storage of ammunition and a firearm. [4] The evidence presented at this trial was painful to sit through. What happened to the victim was outrageous.

An 11-year-oldboy, beginning in the late summer or early fall of 2012 through to mid-February 2013, was at various times shackled and chained to apost in the basement of the family home, naked, starved, tortured with a barbecue lighter (including burning his genitals), and beaten. Itwas the father who tortured, beat, and starved the child. The mother stood idly by when she clearly should have done something to stopwhat was happening.

Her crimes in this case were crimes of omission. [5] At paras 10 and 11 of the trial judgment, I noted: ...the evidence presented by the prosecution at this trial, to establish beyond a reasonable doubt, that the child A.J. was abused, confined,burned, beaten, assaulted, and starved was unequivocal and overwhelming.

What became the central issue for the court to adjudicatewas the degree of blame, the degree of criminal responsibility, if any, for the atrocities visited upon this defenceless boy. [6] Regarding the penalty to be imposed upon S.D., it is important to highlight in no uncertain terms that, when it comes to thedegree of responsibility for what happened to A.J.D., S.D. and D.D. are worlds apart. Her role in this terrible crime, while notinconsequential, pales in comparison to his. Position of the Parties [7] The Crown and defence are very wide apart in terms of the penalty to be imposed upon S.D.

The Crown argued that themaximum penalty of five years' imprisonment for the offence of failing to provide the necessaries of life, together with a four to sixmonths consecutive for the assault with a weapon charge would be the appropriate sentence in this case. [8] Counsel for S.D. submitted that a fit and just sentence would be 16 months' imprisonment for the failure to provide thenecessaries of life and 30 days' imprisonment for the assault with a weapon to be served concurrently followed by 12 months' probation.

Sentencing Principles [9] The amount of media attention this case has generated and the public anger fuelled by the notion that a parent could commit orallow such crimes to be committed against their own child, was in truth difficult to ignore. [10] However, in our society a judge's responsibility when deciding an appropriate sentence is far more complex than to simplyexact vengeance upon persons convicted of crimes. As Justice David Paciocco of the Ontario Court of Justice eloquently put it in the case of R. v.

P.V., 2016 ONCJ 64 , atparas 13 to 15: [13] My task in arriving at a fit sentence is not to choose between these two polarized positions, nor is it a simple exercise inmathematics. Sentencing is a complex exercise that is to be guided by settled principles of law, and precedents. [14] Specifically, I am to gain a measure of the gravity of the offences, and [in this case S.D.'s] degree of responsibility, including anypersonal factors that might aggravate or mitigate her sentence. Having done so, I am to identify the appropriate priorities the sentence isto be given among the purposes of sentencing identified in

section 718 of the Criminal Code. I am then to craft a fit sentence in light ofthose objectives and the guiding principles of sentencing, with careful regard to the range of sentencing approved in the case law. [15] This is not a precise exercise, but it is a systematic one that is meant to lead to a fair, just, and humane but purposeful outcome. [11]

Section 718 of the Criminal Code states:

718 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.

Objectives - offences against children 718.01 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 of such conduct. [ 12 ] In that this was clearly a crime against a child by a parent, the primary consideration in determining the appropriate penalty is denunciation and deterrence. [ 13 ] And thus these two objectives were at the forefront of my mind in deciding a fit and just sentence in this case.

S.D. - Gravity of her Offences [ 14 ] It is a rare thing in our justice system to have hyperbolic language so aptly describe criminal activity. At paras 108 to 112 of the trial decision, I made the following findings of fact concerning what was done to A.J. by his father: [108] The evidence considered as a whole leads me to conclude that A.J.D. was subjected to corporal punishment including cold showers, being struck, and being confined to the basement prior to September 2012.

Following the trip to Florida in September 2012 his father as a means of punishing him for his "sexualized behaviour" burned his penis with a barbecue lighter for the first time. From September 2012 to the end of December 2012 as a means of punishing him A.J. was at various times forced to sleep in the basement, and was handcuffed by the wrists and by the legs and shackled to a post to prevent him from being able to leave the basement for extended periods of time.

That during this time frame he would have been hit by his father and deprived of food. [109] The level of abuse reached a climax in January and February 2013. I have no doubt that the area of A.J.'s genitals including his inner thigh and testicles were burned with a barbecue lighter on multiple occasions. [110] During that timeframe it is clear to me that he was severely deprived of food particularly in the period January 3 to January 27, 2013 (the cell phone video evidence demonstrates this unequivocally).

He was struck with a wooden object a board exhibit 20, he was punched in the face causing a previously broken tooth to break again and with such severity that D.D. injured his own hand. He was handcuffed shackled by the wrists and by the ankles, when that method of restraint was no longer successful his hands were bound with plastic ties.

He sustained long-lasting injuries to his wrists and to his ankles as a result of the use of handcuffs and shackles. [111] The fact is the level of abuse perpetrated on A.J. by his father D.D. was at the very furthest end of the spectrum of cases of this type. [112] The unequivocal language used by the veteran medical professionals and veteran police officers to describe what they saw when they first witnessed the unclothed, battered, 51 pound body of A.J. such as "a concentration camp survivor", "horrifying", "shocking" and "worst case of child abuse I've ever seen" support this finding. [ 15 ] With that said, it is important to reiterate that S.D. was found not guilty of being a party to the offences of aggravated assault and unlawful confinement.

As well, the conviction for assault with a weapon related to one incident of corporal punishment where A.J. was struck in the hand with a wooden spoon. In the scheme of things in this case, it was a minor infraction. [ 16 ] S.D. was found guilty under

section 215 of the Criminal Code in that she failed to act as a parent, as a mother, when she had a duty to do so. [ 17 ] In terms of her moral blameworthiness, it is heightened in this case by the failure to act in the face of the knowledge she had, and the length of time that she failed in her duty. [ 18 ] In finding S.D. not guilty of being a party to the offences where she was jointly charged with D.D., I nonetheless made certain findings of fact that may be considered, and I did consider, in determining the degree of her culpability in her failure to provide the necessaries for her son. At paras 176 to 180 of the trial decision, I indicated the following:

[176] In the case of S.D., the evidence supports a finding that she was aware that A.J. was being confined in the basement and was physically assaulted by D.D. This would include but not be limited to the following: • The fact that she was on maternity leave and at home when some of the unlawful confinement and assaults occurred. • The admissions that she was aware of the confinement and abuse suffered by A.J. at the hands of D.D. in her statement to Sgt.

Tracy Butler on February 14, 2013. • A.J.'s evidence about her knowledge of the abuse and confinement. [177] The evidence also supports the proposition that S.D. failed by omission in her duty as a parent to protect the child by taking him out of harm's way.

When questioned by the Children Aid's Society investigator, Alain Corriveau, in the presence of Sgt Holly Watson, she acknowledges this to be the case by saying "I am guilty of not protecting him." [178] The real issue here is whether the Crown has established beyond a reasonable doubt that the only reasonable inference that can be drawn from the whole of the evidence is that the actions or inactions of S.D. were for the purpose of aiding of assisting D.D. in the commission of the offences of unlawful confinement and aggravated assault.

In other words, I have to be sure that that is the only reasonable inference that can be drawn from all of the evidence. [179] While I have little difficulty in suggesting that S.D. should have contacted the authorities, or should have taken A.J. to a place of safety, I cannot say that the only available inference for failing/omitting to do so was for the "purpose" of aiding D.D. in the commission of the offences.

When the evidence is considered as a whole, there are other equally plausible inferences such as: that S.D. didn't know what to do, that she was conflicted, that she was afraid of D.D., that she decided not to do anything so as to, so to speak, "bury her head in the sand." Moral culpability does not always equate to legal culpability. [180] The following evidence and analysis lead me to this conclusion regarding her mental state: • A.J. testified and said that S.D. did the following: that she tried to get D.D. off A.J. to protect him more than one time, that she tried to calm D.D. down at various times, that when D.D. was not around, she would allow him to take hot showers, that she would comfort him and would sneak him food. • The evidence concerning the personality of D.D., allows for a finding that he was a domineering.

This coupled with S.D. being responsible for a newborn and a two-year-old allows for the inference that she would have found herself in a difficult situation where she would not know exactly what to do in all the circumstances and that she could have been afraid of D.D. • D.D.'s testimony respecting the degree of involvement of S.D., including his statement to Sgt. Butler suggests that the omissions were not for the purposes of aiding in committing offences against A.J. • In her statement to Sgt. Butler, she seemed legitimately surprised by the degree of abuse that had been perpetrated upon A.J.

This was particularly so with regard to the burn injuries. S.D.'s Personal Circumstances - What Were the Mitigating and Aggravating Factors [ 19 ] Whether a person has had a good or a successful life is best measured towards the end rather than the middle of that life. However, there are those lives where whatever successes have been achieved to date or might be achieved in the future can be laid to waste, forgotten or forever tainted by virtue of something that person did or did not do at one particular moment in time.

Such is the case for S.D. [ 20 ] S.D. has no criminal record, and from what I can gather has never been involved in the criminal justice system before. [ 21 ] She was a very successful civil servant, achieving the title of director at a very young age. Her co-workers who testified at trial liked her and considered her an exemplary colleague and worker. [ 22 ] She was a model high-school and university student.

[ 23 ] She comes from what appears to be a good hardworking family. Her family members, as demonstrated in the letters of support from her father and her brother, support the proposition that she is a worthwhile person who is still very much cared for by others. Her brother described her as a soft and intelligent woman.

The letters seem to me to be heartfelt and sincere. [ 24 ] S.D. was a very good mother to the other two children. [ 25 ] All of which make what she did or did not do all the more difficult to understand. [ 26 ] The Crown has suggested that some of the positive aspects of S.D.'s life should be held against her and viewed as aggravating, in that someone of her intelligence in her position, who clearly was capable of showing love to other children, who allowed unspeakable crimes to be committed against her third child should be held to a higher standard of responsibility. That argument is not without merit.

However, in my view an individual's pristine past history, work ethic, success in other endeavours should go to the person's credit rather than be held against them. [ 27 ] In terms of mitigation, there was also evidence called at trial, much of it coming directly from A.J.D., that suggested from time to time the mother intervened and tried to placate the enraged father, or where she demonstrated some compassion towards A.J. by allowing a hot shower, or some more food.

Aggravating Factors [ 28 ] This was a breach of the highest position of trust, a mother and her child. [ 29 ] The period of time where this was allowed to continue, six months, and the fact that there were numerous opportunities where something could have been done to intervene is aggravating. [ 30 ] The position she was in in terms of her knowledge of what was appropriate and inappropriate, her level of care for her two biological children show full well that she ought to have known the extreme urgency there was in doing something to bring an end to the pain and suffering being endured by her third child.

Victim Impact Evidence [ 31 ] I have taken into account the victim impact statement of A. (A.J.). Once again after reviewing the video of his statement, I marvel at the bravery of this young boy.

However despite that courage, and inner strength that seems to be part of the content of his character, he will nonetheless doubtlessly struggle at various points in time and with varying degrees of severity, with the memory of a lost childhood, and with the physical and mental scars that he must shoulder for the rest of his life, put upon him by the hands of the persons entrusted with the responsibility of loving and protecting him. [ 32 ] I have also taken into consideration the victim impact statement of L.T. who, together I believe with her husband, sat and listened and watched the evidence as it was presented day in and day out at this very painful trial.

In her statement she said the following to S.D.: You gave A.J. two brothers. He misses them. He used to speak of them often. Now he barely mentions them, unless he is asked. There is a resigned sadness, an unspoken acknowledgement that this is simply one more consequence, another punishment for a crime in which he was the victim... The enormity of the assaults inflicted on A.J., both physically and mentally, left us stunned devastated and worn out. The guilt, the shame, and the strain of this trial have forever changed our family...

During the trial we discovered that you were, by all accounts, a strong, intelligent woman; a high ranking civil servant, involved in determinations regarding deportation of criminals who constitute a danger to the public in Canada. We cannot grasp how you could have allowed this to happen why you didn't act. There are so many questions that consume us. We wonder if you would have allowed D.D. to hurt your two sons. We imagine you preparing supper and having a meal with your husband and sons while our baby lay battered and starving in the basement.

We picture you tucking your boys snugly in bed at night in their beautiful rooms filled with toys while A.J. lay alone in the dark, night after night, naked and shivering, shackled on a cold cement floor. You adopted A.J. He was one of your babies too. It is beyond our comprehension. When you a smile upon your children's faces, we wonder, do you remember A.J.'s beautiful dark eyes pleading for your help? Jurisprudence for this Type of Offence [ 33 ] The Crown and the defence both filed books of authorities. The range of penalty for a conviction of failing to provide the necessaries of life under

section 215 vary widely. The maximum penalty is five years' imprisonment. Interestingly enough, the Crown did not provide a case on a conviction under

section 215 standing alone where the maximum period of incarceration had been imposed. [ 34 ] Counsel representing S.D. has filed a book of authorities with sentences ranging from six months to three years. [ 35 ] A decision that both counsel put forward was R. v. A.S. , [2016] ONSC 5599, a decision where a mother was sentenced to three years in prison for failing to take measures to protect her nine-year-old daughter who was being viciously sexually assaulted by her boyfriend over an extended period of time (almost a year). [ 36 ] Counsel for S.D. also cited the decision of R. v. A.P. , 2013 ONSC 6393 , where a sentence of 12 months in prison was

imposed in a case where a four-year-old child was barricaded in his room for several months without human interaction, without being bathed and only fed once a day. The mother in that case functioned at a low intellectual level. [ 37 ] In arriving at the appropriate disposition in this case, I have taken into account the remorse expressed by S.D. Frankly I believe she is very remorseful for what happened here.

I have also taken into account the ramifications that this conviction has had on her personally: the loss of the custody of her two children, how she is now perceived in the community by reason of the extraordinary media coverage of this case, and the loss of a very promising career. [ 38 ] The extreme brutality of what was done to the child/victim and the failure of a mother to act over an extended period of time, make a period of incarceration in the federal penitentiary range a fit and just sentence even for a first offender. [ 39 ] To impose a maximum penalty of five years' imprisonment does not require that this be the worst case with the worst offender.

However, it seems to me that the imposition of the maximum penalty would involve cases where there is a virtual absence of remorse and other mitigating factors, and where the negative consequences of a conviction such as the loss of a career, two other children, and one's reputation, do not exist. [ 40 ] When all is said and done, I find that the appropriate penalty for S.D.'s failure to act, failure to protect A.J., is three years' imprisonment. I would impose a penalty of 60 days for the assault with a weapon to be served concurrently.

The total credit for pretrial custody, including her stringent bail conditions, I calculate at 19 months, leaving a balance on the warrant of committed to be served of 17 months. [ 41 ] There will also be the following ancillary orders: • There will be a DNA order under

section 487.051 of the Code . • A weapons prohibition order for period of 10 years pursuant to

section 109 of the C riminal Code . • An order pursuant to

section 743.21 of the Criminal Code prohibiting S.D. from communicating directly or indirectly with A.J. or any of his current family members during the custodial portion of her sentence. The Crown will furnish whatever names it deems necessary in this regard. • Finally, there will be the mandatory victim fine surcharge. ******** CERTIFICATE OF TRANSCRIPT EVIDENCE ACT , subsection 5(2) I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription of the recording of R. v.

S.D. in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR37_20170118_091035__ 10_MARANGR, which has been certified in Form 1. "original signed by Lynn Carrière" January 19, 2017 Date Lynn Carrière