R. v. J.W., 2022 MBPC 49

CITATION: R. v. J.W. , 2022 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) D. Queau-Guzzi ) for the Crown ) - and - ) ) ) J. W. ) S. Wilson ) for the Accused ) ) ) Reasons for Decision ) Delivered: October 14, 2022 FREDERICKSON P.J. Introduction [ 1 ] Following a trial, I found the accused, J.W. guilty of assault cause bodily harm. The victim was his then 21-month old stepson, M.B. [ 2 ] On October 6, 2019, the accused was alone with his six-day old son J.J.W. and M.B. in the apartment he shared with their mother, V.B. She had briefly left the apartment to run an errand.

M.B. was uninjured when she left. While we do not know precisely what happened, sometime that morning M.B. suffered blunt force trauma injuries. After considering and rejecting other plausible inferences, I found that the only reasonable inference was that the accused caused the injuries to M.B. [ 3 ] The trial was heard over the course of three days in February and May of 2021, with the trial decision originally scheduled for June 21, 2021. The accused did not attend court, and was at warrant status for several months.

While he was at warrant status, he moved from the address specified on his release order, without notifying the court or seeking permission to do so. His actions resulted in significant delay in concluding this matter. At the time of sentencing submissions, the accused pled guilty to the two breach charges. [ 4 ] This is my decision on sentence. [ 5 ] Sentencing is an individualized process.

A fit and appropriate sentence is one that appropriately reflects the sentencing objectives and principles as set out in the Criminal Code , recognizing that the applicability and weight placed on individual principles will vary based on the nature of the offence and the circumstances of the offender.

[ 6 ] Pursuant to s. 718.01 of the Criminal Code , denunciation and deterrence are the primary sentencing objectives for offences involving the abuse of children. [ 7 ] Other sentencing principles set out in s.718.2 apply – taking into account aggravating and mitigating circumstances, Gladue factors and the objectives of rehabilitation, restraint and parity. [ 8 ] As always, the fundamental principle applies; namely the sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender.

Nature of the Offences [ 9 ] Following the trial, I found that the accused was responsible for causing the injuries to M.B. He had the exclusive opportunity, as he was the only adult in the home at the time. When V.B. returned from her errand, she saw him coming out of the bedroom where M.B. and J.J.W. were sleeping.

When V.B. discovered M.B.’s injuries and confronted the accused, he suggested to her that perhaps he had held M.B. “too hard”. [ 10 ] Aside from this explanation, which the accused testified was the result of him brainstorming as to what could have happened, we do not know how or why he assaulted M.B. The Court heard that the family was sleep deprived, as often is the case when a newborn baby arrives. The Court also heard that the accused and V. B. were celebrating the night before.

Although his level of intoxication at the time of the offence was not determined, it was established that he had consumed both alcohol and marijuana in the hours prior to the assault. The accused was an experienced parent, having parented his daughters for periods of time following their births and, for several months prior to the offence, was a parent to M.B. [ 11 ] M.B. suffered blunt force injuries consisting of dark purple bruising under his left eye; several small hemorrhages in the whites of his eye; a swollen upper lip; and numerous superficial scratches on his neck, along with areas of bruising.

He spent four days in hospital, and underwent several medical tests and procedures. [ 12 ] The physical harm suffered by M.B. was evident in the photographs taken while he was in hospital. Because of his age, we do not have evidence from M.B. as to his level of discomfort. However, the expert evidence of Dr. Lindsay established that although pain is subjective, generally blunt force injuries causing bruising and swelling are painful. She also testified that generally, it would take a week or two for injuries such as M.B.’s to heal.

The fact that he has since recovered from these physical injuries is of no credit to the accused in sentencing. [ 13 ] In addition to the physical harm that M.B. suffered, he also suffered, and continues to suffer from, emotional and psychological harm. In the Victim Impact Statement read into court by V.B., she described M.B.’s fear of doctors, and of males. He is speech delayed and he speaks in baby talk. He has nightmares; does not like it when he is separated from his mother; and does not like having doors closed in any room. [ 14 ] V. B. has also suffered harm because of the accused’s actions.

He broke her trust at a particularly vulnerable time. As a mother, she told the Court she feels helpless seeing her son in pain, and is angry that the accused could hurt a child. This anger is made worse given the father-son relationship that existed between the accused and M.B. [ 15 ] The seriousness of the offence is high. Circumstances of the Offender [ 16 ] The accused comes before the court at 27 years of age, and was 24 years at the time of the offence. He has a limited and unrelated criminal record, with a single entry for which he received a community-based sentence.

He received anger management counselling as part of his previous probation order, and V. B. referred to the accused as learning to deal with his anger. [ 17 ] He has two daughters from previous relationships, and his son J.J.W. with V. B. He is estranged from his eldest daughter, but was seeing his younger daughter on a regular basis until he was charged with assaulting M.B. He does not see J.J.W. anymore. [ 18 ] He has a grade 11 education, with plans to finish grade 12. He has a history of employment, mainly in construction.

He has been unemployed throughout the pandemic, supporting himself on government benefits. He is with a new domestic partner, and they hope to have a child together someday. [ 19 ] His childhood was marked by domestic violence and substance abuse by his parents. His father was granted full custody, and he raised the accused and his two older brothers.

When the accused was 10 years old, one of his brothers died in a car accident, and his father died from cancer when the accused was 16 years. [ 20 ] According to the Presentence Report, the extent of grief counselling offered to the accused to deal with these losses was a local priest who came to speak with him following his father’s death. As he is an Indigenous young man, it is unsurprising to the Court that he chose not to take advantage of this offer. [ 21 ] The accused’s family comes from Sandy Bay First Nation.

His grandparents attended residential school, with his mother advising the Presentence Report writer that her parents suffered abuse at the school. Her father abused substances, and she struggles with substance use, as does the accused. He has had limited exposure to his culture, and is interested in learning more. [ 22 ] As referenced, there was instability and domestic violence in his family home. His father drank heavily while raising him.

The accused recalls his father using physical discipline on him and his brothers, although he did not view it as abuse. [ 23 ] Following his father’s death, the accused lived with his mother. The Presentence Report notes that during this time the accused and his mother would drink together, leading to arguments.

[ 24 ] The accused’s use of substances – both alcohol and drugs – is concerning. He is aware that his substance use is problematic, and that staying clean will be a challenge for him. [ 25 ] His family and partner are aware of and concerned about his substance abuse pattern. Despite this concern, and some level of awareness on his part, the accused has not sought out counselling or assistance. He continues to drink with friends, which his partner says results in him getting into trouble. [ 26 ] The Presentence Report assesses him as a high risk to reoffend.

Of note are his risk factors of alcohol and drug use, and companions. [ 27 ] In considering his moral blameworthiness, the Court looks to the normative character of his conduct, along with his intentional risk-taking and the consequential harm caused by his actions. Physically assaulting a very young child is highly morally wrong and contrary to society’s values. It was foreseeable that an adult applying force to a young child such as M.B. would cause harm. The accused was reckless or wilfully blind to the harm he was causing. [ 28 ] The accused did not seek immediate help or medical attention for M.B.

When confronted by V. B., he offered the explanation of possibly holding M.B. too hard. Dr. Lindsay testified that the injuries were not from the normal handling and care of a child. There is no rationale for the accused’s actions. [ 29 ] His moral blameworthiness is high. However, it is attenuated by the Gladue factors that have affected his life, including the negative impacts of residential schools experienced by his maternal grandparents, the loss of his culture, and the intergenerational impacts seen within his family’s experience including instability, domestic violence, and substance abuse.

Aggravating and Mitigating Factors [ 30 ] There are several aggravating factors in this case: • It is statutorily aggravating that M.B. was under the age of 18 years; • It is further aggravating that M.B. was particularly vulnerable, being just 21 months old; • It is statutorily aggravating that the accused was in a position of trust to M.B., in the role of stepfather; • It is aggravating that the offence took place in the home M.B. had started to share with the accused and his mother; and • The serious nature of the injuries sustained by M.B. is aggravating, requiring a four-day hospital stay. [ 31 ] In addition to the Gladue factors that I have described, it is mitigating that the accused comes before the Court with a limited and unrelated criminal record.

The Law [ 32 ] As stated at the beginning of these reasons, the primary sentencing objectives involving the abuse of a child are denunciation and deterrence. [ 33 ] Other objectives, such as rehabilitation, and personal circumstances of the offender such as Gladue factors must also be taken into account, but as noted by the Manitoba Court of Appeal in R. v. K.N.D.W ., 2020 MBCA 52 , where denunciation and deterrence are the primary sentencing principles, the focus must be more on the offence committed than on the offender. [ 34 ] The Crown filed the Manitoba Court of Appeal decision of R v.

Kravchenko 2020 MBCA 30 . In this case, the court identified a sentencing range of 4 – 8 years for aggravated assault where there is a random attack with a weapon on a stranger. Here, M.B. was not a stranger to the accused, and there was no weapon used. This range does not assist in determining a fit and appropriate sentence for the accused. In Manitoba, there is no clearly defined range for assault causing bodily harm as it relates to children. [ 35 ] Both counsel filed cases involving assaultive behaviour by parents on infants or very young children in their care.

While most cases filed are in relation to the charge of aggravated assault, the sentencing principles remain the same. [ 36 ] The cases filed demonstrate varying custodial sentences. As noted by Judge Martin in her analysis of the case law in R v. Rochon-Frosk , 2017 MBPC 14 , the difference in sentence depends on the principle of proportionality. [ 37 ] The physical injuries inflicted on the victims in the filed cases involved: • brain injury ( R. v. H.(L.) 2014 BCSC 600 ; R v. Rothery , 2018 ONSC 7338 ; Rochon-Frosk ; R v. Harwood-Jones , 2010 MBQB 8 ); • broken bones ( R v.

MacDonald , 2009 MBCA 36 ; Rothery ; Rochon-Frosk ); • burns ( R v. Nickel 2012 ABCA 158 ); • bruising ( R v. C.D.M. 2022 BCPC 144 BCPC ); and • stabbing ( R v. B.J.G. 2012 ABPC 254 ). [ 38 ] Some of these cases involved the one-time application of force; others involved assaults on multiple occasions. In some cases, the child recovered from the physical injury; in others, they did not. In most of the cases, the offenders did not seek help or medical attention immediately.

[ 39 ] In all of the cases filed, the gravity of the offence - namely the assaultive behaviour of parents on infants and very young children - was noted to be high. [ 40 ] Aside from H.(L.) , none of the offenders in the cases filed identified as Indigenous, and in H.(L.) the preparation of a Gladue report was waived.

In some cases the offender’s moral blameworthiness was mitigated due to mental health issues or a dysfunctional background. [ 41 ] The offenders in these cases were like the accused, with either no criminal record or a very limited record. [ 42 ] In cases where the offender pled guilty, this mitigating factor was taken into account in determining the sentence. [ 43 ] Both counsel pointed out, and the Court well knows, that the accused has a constitutional right to a trial.

His lack of acceptance of responsibility or expression of remorse as a result of exercising this right is not an aggravating factor. [ 44 ] The Manitoba cases filed reflect sentences ranging from 18 months with supervised probation for multiple instances of abuse causing brain injury ( Harwood-Jones ), three years for repeated assaults on infant triplets, causing broken bones ( MacDonald ), and 4 years reduced to 3.5 for totality for multiple assaults resulting in life-long implications ( Rochon-Frosk ). [ 45 ] The Crown urges me to find that R v.

Friesen , 2020 SCC 9 – and specifically the direction that sentencing judges should generally impose higher sentences for sexual offences against children – also applies to non-sexual offending against children. [ 46 ] I agree that much of direction and guidance in Friesen can equally apply to non-sexual offending against children – such as recognizing the specific vulnerability of children, especially in their own home and at the hands of their caregivers, as well as focussing on the harm done to the child rather than specific physical acts.

However, to say that Friesen supports the proposition that all sentences must be increased for all offences committed against children casts too broad a net. [ 47 ] This is consistent with the position taken by Judge Carlson in R v. C.L. 2021 MBPC 24 , as well as the position taken by the Provincial Court of British Columbia as set out in C.D.M .

Analysis and Sentence [ 48 ] The Crown proceeded by indictment on the assault cause bodily harm charge, and summarily on the breaches. [ 49 ] The Crown seeks a sentence of four years for the assault cause bodily harm charge, with consecutive sentences of 45 days for failing to attend court and 30 days for moving without permission. The accused says a sentence of one year, followed by two years of supervised probation is appropriate for the assault charge.

He also seeks a sentence of 30 days and one day, respectively, for the breach charges. [ 50 ] M.B. was 21-months old, just learning to walk, vulnerable and dependant on the accused as a parental figure to fulfill his needs. In the days leading up to the assault, he was particularly vulnerable and clingy as he adjusted to life with his new baby brother. [ 51 ] M.B. suffered from physical injuries that necessitated medical attention and a hospital stay.

The accused did not summon assistance following the assault, and attempted to cover up his involvement in his comments to V.B. [ 52 ] While the physical injuries have resolved, M.B. and his mother suffer from on-going emotional and psychological harm. [ 53 ] The accused was not suffering from a mental health diagnosis that might mitigate his moral blameworthiness.

Although aware of the concerns regarding his substance abuse, he has not sought help or taken other steps to deal with it. [ 54 ] Unlike the offenders in the cases provided, the accused’s moral blameworthiness is reduced by the Gladue factors that have affected him. It is not difficult to see that intergenerational domestic violence and substance abuse resulting from the policies of colonization have a role to play in the offence for which he is being sentenced. [ 55 ] Even with this mitigation, a substantial custodial sentence is required.

The one year proposed on his behalf does not sufficiently address the seriousness of the offence and his moral blameworthiness. Something more is required to denounce his conduct and deter him and others from committing a similar offence. [ 56 ] Although the principle of rehabilitation takes on a lesser role, it is not ignored. The accused is still a young man. His record is limited and unrelated. While he has some insight into his issues, on his own he has not had the strength to take steps to address them. Dealing with these issues will not only benefit him, but will contribute to the protection of society.

In this regard, a term of supervised probation will be imposed. [ 57 ] The sentence will therefore be as follows. For the charge of assault cause bodily harm, a custodial sentence of 22 months. This will be followed by a period of supervised probation for two years.

In addition to the statutory conditions, the terms will be as follows: • Report within 24 hours of release from custody, and thereafter as required. • Attend, participate and complete any assessments, programs and counselling recommended by your probation officer, including substance abuse, anger management and grief. • Abstain from the consumption of alcohol, marijuana and illegal drugs. You may only take prescription mediation that is prescribed for you in your name. • Not to possess any weapons.

• No contact or communication with M.B. and V.B. • Not attend within 200 metres of where M.B. and V.B. live, work, go to school or worship. [ 58 ] For failing to attend court, a custodial sentence of one month consecutive. Your actions contributed to a significant delay in resolving these matters. [ 59 ] For failing to reside at the address specified in your release order, a custodial sentence of 15 days consecutive. Your actions in this regard further contributed to the delay in resolving these matters. [ 60 ] The total custodial sentence is 23 months and 15 days.

In taking a last look back for totality, I find that this sentence is not unduly harsh or crushing. [ 61 ] The accused has 8 days presentence custody.

With credit at time and a half, 12 days will be deducted, leaving a go-forward sentence of 23 months and 3 days. [ 62 ] The following ancillary orders will attach to the assault cause bodily harm conviction: • A mandatory DNA order pursuant to s. 487.051(1) of the Criminal Code . • A mandatory weapons prohibition for a period of 10 years pursuant to s.109 of the Criminal Code . • A no contact order while in custody as it relates to V.B. and M.B. pursuant to s. 742.21 of the Criminal Code . [ 63 ] Costs and surcharge will be waived. “Original signed by:” _______________________ FREDERICKSON P.J.