R. v. Q.Y., 2017 ONCJ 180

CITATION: R. v. Q.Y. , 2017 ONCJ 180 DATE: March 1, 2017 Information Nos. 16-333 16-882 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. Q.Y. REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on March 1, 2017, at MILTON, Ontario INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA

APPEARANCES : C. Kerr Counsel for the Provincial Crown A. Maini Counsel for Q.Y. Julie Li Mandarin Interpreter INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Sentence 1

Transcript Ordered ............................... March 6, 2017 Transcript Completed ............................ March 19, 2017 Ordering Party Notified ......................... March 19, 2017 REASONS FOR SENTENCE Harris, J. (Orally): Q.Y. pled guilty to two counts of assault involving her daughter S.Y. Crown counsel had elected to proceed summarily. Ms. Y.Q. is before me today to be sentenced. Her counsel and Crown counsel both suggested that I should sentence her to imprisonment for no more than four and half months. They also agreed that I should place her on probation and make a DNA order and a weapons prohibition order pursuant to

Section 110 of the Criminal Code . I am satisfied that a global sentence of imprisonment for four and half months followed by probation for 18 months is the appropriate sentence here. In reaching that conclusion I have considered the fundamental purpose and principles of sentencing, the facts of this case, the impact on the victim, and the background of Ms. Y.Q.. The fundamental purpose of sentencing as expressed in

Section 718 is to contribute to respect for the law, the maintenance of a just peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. Proportionality is the fundamental principle of sentencing but it is not the only principle to be considered.

Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2(a)(ii.1) and (iii) provide that evidence that an offender in committing an offence abused a person under the age of 18 years or 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 and that the sentence should be increased to reflect that. In this case, the offences had a significant impact on the victim considering her age and other personal circumstances including her health and financial situation.

Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance. On the other hand I must also consider

section 718.2(

d) which provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Further, I must also consider the impact of

Section 718.2(

e) which provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. I have also taken note of the decision by the Supreme Court of Canada addressing the constitutionality of

Section 43 of the Criminal Code.

Section 43 provides a defence to assault in situations involving the discipline of children. In its decision the Supreme Court of Canada has set very clear limits on the application of

Section 43 and determined that it was constitutional only in light of those very clear limits. I will make reference to some of those limits later in my reasons. Ms. Y.Q. and S.Y. are mother and daughter. Prior to coming to Canada there was a period of time when S.Y. did not reside with her parents. Rather she resided with her grandparents. The parents and S.Y. came to Canada in 2010 when S.Y was 10 years old. In 2014 the young girl began stealing things. Her mother discovered this and also accused her daughter of lying.

Based on information that has been provided to me there is some element of truth to those allegations. I mention these only as providing part of the narrative. I want to make it clear, as the Supreme Court of Canada did, that lying and stealing on the part of a child do not justify the behaviour that followed. In any event, as well as accusing her daughter of lying and stealing, Ms. Y.Q. had her daughter lay on her stomach and Ms. Y.Q. would strike her on the buttocks and back with the handle of a toilet plunger. This occurred over a period that ran from May 1, 2014, to the end of February in 2016.

On March 24, 2016, S.Y. stayed at home from school because it was a snow day. Ms. Y.Q. accused her daughter of speaking badly about Ms. Y.Q.. She began to strike S.Y. with a rolling pin and a broom handle. She struck her on the back and on the arm and on the buttocks. S.Y. fled the family home and went to the Oakville Place Mall. She was seen crying there. Other individuals made inquiry into this which led to an official investigation and police were called. I have been provided with nine photographs showing the results of the beating that was administered to this young girl.

I will point out that I use the word beating advisably. There is no other way to describe what took place. So I really have two different sources of victim input here. I have those photographs. I have what I would like to classify as an element of common sense. I have the reaction of a father and a grandfather who was aghast at what he saw when those photographs were provided to me. Let us just say that my reading of the impact of the beating is very different from that set out in the victim impact statement that was provided by S.Y. and I will point out where I read between the lines on that one too.

S.Y. struck me as being a remarkable young woman. She is articulate. She seems to be making the best of a bad situation. The one place where she falls down is that she is prepared to take it upon herself to accept blame for what happened in this particular case. She was the liar and the thief and that is why her mother became angry and beat her. She does not quite say that her mother was justified but she comes close to saying that. There is absolutely no basis for that statement. But this is where I read between the lines again.

I am concerned that the impact of the crime and the crime being discovered and prosecuted is being such as to instill a feeling of guilt in a victim. Now I do note that there is also an intense feeling of guilt on the part of Ms. Y.Q. and I will address that as well. I was provided with a psychological risk assessment amongst other things. This informs me that Ms. Y.Q. was born in Xian, China where she was raised by her parents. She had a brother and a sister. She did not experience any traumatic events while growing up. She was not the victim of any abuse or neglect. She has positive memories of her childhood.

She does recall being spanked on one occasion for lying. She came to Canada in 2010 with her husband and her daughter. There were issues adjusting to the new country. It was not easy. She was not accustomed to Canadian culture and she did not speak English. She is a permanent resident of Canada. Needless to say, as such, she is not a Canadian citizen. She obtained a University degree in applied chemistry in China. She worked as a chemical analyst in China. However, she has never been gainfully employed in Canada. On the other hand, she has never received social assistance. There is no issue with alcohol or drugs.

The psychological assessment indicates that it is quite apparent that Ms. Y.Q. suffers from significant depression. It is indicated there are also some characteristics consistent with paranoid ideation and psychotic symptomology. The psychologist concluded that Ms. Y.Q. presents with a low risk for future legal involvement. The doctor made certain recommendations which included psychiatric assessment, participation in psychological treatment. There is also an indication that ideally she and her family should participate in family counselling.

In determining the appropriate sentence I must consider both the aggravating factors and the mitigating factors in this case. The most aggravating factors here can be found in the offences themselves. The final assault in this case was definitely a horrific offence. It was not the entire offence however. Assaults were repeated on a number of occasions over a period of two years. It is clear from the facts that were read in that this was never a matter of impulse. There were always steps taken to have S.Y. assume the appropriate position and clothing be moved before blows were struck.

The blows were repeated on each occasion. This was not a matter of striking once and stopping. I had recollection of the photos even before I reopened them during the break. Even so, the impact is considerable. I note significant bruises on the left forearm. What appeared to be scratches near the shoulder area on the left arm. There are what look like scratches or red marks near the area of the right wrist. There are a number of significant red abrasions across the back. The discolouration on major portions of the buttocks in getting closer to purple than to red.

I will repeat here that this is not a matter of Ms. Y.Q. disciplining her daughter. Ms. Y.Q. quite properly did not attempt to justify her actions under

Section 43 of the Code . As I indicated earlier, the Supreme Court of Canada put very real limits on when that could apply. One of the limits is that the person applying the force must have intended it to be for educative or corrective purposes. It cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. I would certainly characterize Ms. Y.Q.’s actions as motivated by anger and animated by frustration.

The child must be capable of benefitting from the correction it was old enough to learn. However, the nature of the correction is such that I find it hard to find it as being correction rather than definite punishment. The

section can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. Bodily harm was definitely caused in this case. Finally, it was made specifically clear that

Section 43 is not applicable when objects like a plunger handle, a rolling pin or a broom are used to strike a child. Parents are supposed to protect their children from such injuries. They are not supposed to be the ones inflicting the harm. Now, from the material before me, Ms. Y.Q. clearly understands that. She entered a guilty plea. Her comments to me, and pretty well everyone else as well, indicate that she has accepted full responsibility for her actions and she feels remorse. She had no previous record. Other than this offence I have no reason to believe that she is anything other than a good person.

She clearly loves her daughter. She hopes her daughter will succeed in life and she wishes to do as much as she can to give her daughter a chance at achieving that. She has clearly learned a great deal from what happened here and the steps that she has taken since. I think it is highly unlikely that she will ever be back before the court again. She has, as I say, already taken steps with respect to counselling to ensure this. I also note the plain fact that now that the secret is out, it is even less likely that she could go back to doing what she was doing before even if she wanted to.

I note that she has the support of family. She has the support of friends. She has the support of her church. She has the forgiveness of her daughter. All of these things speak well to the prospect of her rehabilitation. Accordingly, I am not concerned so much about specific deterrence and rehabilitation. I am however, gravely concerned about the need for general deterrence and denunciation. As I indicated earlier, the Criminal Code has made it clear that in cases such as this one those principles are to be the primary consideration in sentencing.

While noting that I will point out that common sense could have told me the same thing. In any event, I find that a period of imprisonment is called for here in order to make it clear that we as a society will not tolerate such behaviour. It has to make it clear to anybody considering similar behaviour that this will lead to a significant period of time in jail. Now, all of this is tempered by the fact that Ms. Y.Q. is a permanent resident of Canada. That means she has certain rights but there are limits on those rights.

The limits on the rights are such that it is very likely that she would be deported if I sentence her to imprisonment for six months or more. I will point out what should be obvious to anybody, that deportation would be counterproductive in this particular case. Nobody wants to break up the family permanently. Certainly S.Y. does not want to see her mother sent back to China. The situation, if that was to happen, would be extremely problematic as various family members lined up in different ways to decide are they going back to China or are they staying here in Canada.

It would make it impossible for the family to resurrect any of the prior relationship. I note that the Appeal Courts have made it clear that the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons. Where there is a range of possible sentences the fact that an offender will face deportation under one possibility is one of the factors which is to be taken into consideration in conjunction with all the other circumstances of the case in choosing the appropriate sentence and tailoring the sentence to fit the crime and the offender.

I do note that those same courts indicate that there is a very real limit to that statement. The limit is essentially that it cannot be used to turn an unreasonable sentence into a reasonable one. For an individual such as Ms. Y.Q., I am satisfied that a sentence of four and half months imprisonment is significant. It is well within the range of what is reasonable. I noted earlier that the guilty plea is an acceptance of responsibility as well as an expression of remorse. More importantly it made it unnecessary for the daughter to relive her victimization before a courtroom full of strangers.

For all of these reasons, I will be imposing the following sentence. Ms. Y.Q., if you would stand, please. With respect to count 1, you will be sentenced to imprisonment for 90 days. With respect to count 2, you will be sentenced to imprisonment for 45 days consecutive. That works out to a total of 135 days, by my calculation, four and half months. The imprisonment will be followed by probation for a period of 18 months.

The terms of the probation will require you to keep the peace and be of good behaviour, appear before the court when required to do so, notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation. You will report in person to a probation officer within five working days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

You will cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request. Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with S.Y. except with her prior written consent filed in advance by her with the probation intake or the assigned probation officer. This may be cancelled by her in any manner at any time.

Do not be within 20 metres of any place where you know her to live, work, go to school, frequent, or any place you know her to be except with her prior written consent filed in advance by her with the probation intake or assigned probation officer. This may be cancelled by her in any manner at any time.

You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for anger management, parenting, psychiatric or psychological issues, any other programs directed by the probation officer including family counselling. Pursuant to

Section 110 of the Criminal Code , this applies to both charges, for the next five years you are prohibited from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Both offences are secondary designated offences, however, in the circumstances I am satisfied that this is an appropriate case and I make an order authorizing the taking of any number of samples of one or more bodily substances including blood that are reasonably required for the purpose of forensic DNA analysis.

Finally, I will give her six months following her release from custody to pay the surcharges. FORM 2 Certificate of Transcript

Evidence Act , Subsection 5(2) I, EVA ANDERSON , certify that this document is a true and accurate transcription of the recording of R. v. Q.Y. in the Ontario Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1211-2-20170301-083654-6-HARRISDAV.dcr which has been certified in Form 1. March 19, 2017 _____ (Date) (Signature of Authorized Person)