R. v. W. L., 2016 NLCA 63

W.S. (appellant) v. Her Majesty the Queen (respondent) (14/73) Indexed As: R. v. W. L. (M.S.) 2016 NLCA 63 1 C.A.N.L.R. 258 Court of Appeal of Newfoundland and Labrador Welsh, Barry and Rowe JJ.A. November 9, 2016 RESTRICTION ON PUBLICATION :

Section 486 of the Criminal Code – Any information that could identify a complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

Summary: A police officer conducted recorded interviews with the six eldest of W.S.’s ten children, ranging from approximately seven to fourteen years of age after an area supervisor for the Department of Child, Youth and Family Services prepared a report alleging child abuse. W.S. was charged and found guilty of several offences committed against her children: five counts of unlawful confinement, four counts of criminal negligence causing bodily harm, six counts of assault, one count of endangering the morals of a child, and one count of contributing to a child being a child in need of protective intervention.

In addition, she entered a guilty plea and was convicted of breach of an undertaking and obstructing a police officer. She was sentenced to approximately twelve years imprisonment less time served in pre-trial custody. W.S. appealed against the convictions regarding criminal negligence, assault and endangering the morals of a child, on the basis that the convictions were unsupported by the evidence and the verdicts were unreasonable because the trial judge erred by giving insufficient reasons and by failing to consider inconsistencies in the evidence as among the children and by the children individually.

She also appealed her sentence on the basis that it is excessive and unduly harsh. Held: Conviction appeal dismissed, sentence appeal allowed. Welsh J.A. (Rowe and Barry JJ.A. concurring): Statements given to the police by five of the children were admitted into evidence under

section 715.1(1) of the Criminal Code . There are several factors present in

section 715.1 which provide for the requisite reliability of the videotaped statement. They include: (

a) the requirement that the statement be made within a reasonable time; (

b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (

c) the requirement that the child attest that she was attempting to be truthful at the time the statement was made. As well, the child can be cross-examined at trial as to whether he or she was actually being truthful when the statement was made. The children’s evidence must be assessed in context. The statements to police were given individually by children who were between seven and fourteen years of age. There was a lapse of time between when the statements were given and when the children testified. In many cases during cross-examination, the children simply said they could not remember.

The conduct was of an on-going nature, rather than one incident. The effect may have been to make it more difficult for the children to be specific about where and when incidents took place, how one incident might have differed from another, and which of the children were involved. W.S. submits that the trial judge erred by failing to analyze and deal with contradictions in the children’s evidence regarding allegations of criminal negligence. The differences in detail among the children and between their statements to police and testimony at trial relate to peripheral issues.

The language and descriptions were individual and could be attributed to the personalities and age-level of the children. Though the trial judge did not state this in specific language, it is clear from his summaries of the children’s evidence and his dismissal of some claims for lack of evidence, that he was applying the correct legal principles to the assessment of children’s evidence. He did not err in finding criminal negligence was established.

The trial judge convicted W.S. of assaulting the six children who gave statements to the police and did not err in doing so. He dismissedthe charges relating to the other children. While the trial judge did not specifically address the differences in the statements andtestimony given by the children, he relied on the basic consistency of the children’s evidence as to W.S.’s conduct in accepting theevidence as credible and as sufficient to prove beyond a reasonable doubt the offences for which he convicted.

The Crown was notrequired to produce corroborating evidence from adults who may have seen the children’s bruises, as it was not necessary where thejudge determined that there was sufficient evidence to prove the charges. As for the offence of endangering the morals of a child, the judge referenced the correct principles of law. He correctly noted thatconduct that imperils the child’s understanding of parents’ responsibilities to protect and nurture their children may imperil the morals ofa child.

An assessment of what constitutes sexual immorality under section 172(1) will depend on the context and the circumstancessurrounding the conduct. The standard against which the conduct is measured is an objective standard of what the community as a wholewill tolerate. The judge erred in failing to distinguish between two types of conduct. All five of the children who gave statements to the police saidthat they had seen their parents engaging in sexual intercourse, but only two testified that they were required or asked to watch theirparents engage in sexual intercourse.

The judge did not explain why he accepted the evidence of the two children and it cannot beconsidered on appeal. The question is whether the reckless actions of W.S. in failing to take steps to achieve privacy when engaging in sexual intercourse gobeyond what the community is prepared to tolerate. In the circumstances, the conduct was such as to imperil the morals of the childrenbecause it imperiled the children’s understanding of a parent’s responsibilities to protect and nurture their children’s development in amanner that is consistent with the needs of those children.

There being no error, the conviction appeal was dismissed. As for the sentence appeal, W.S. has not challenged the sentences imposed for individual offences, but submits that the trial judge erredin his consideration of the total sentence. Nonetheless, because the Court’s reasoning for upholding the conviction differed from that ofthe trial judge, the two-year sentence for the offence of endangering the morals of a child requires review. Based on the reducedseriousness of the offence, the sentence imposed by the trial judge must be varied.

In the circumstances, an appropriate sentence for thecount of endangering the morals of a child would be imprisonment for a term of nine months. Because sentencing here involves multiple offences, the appeal engages consideration of the principles of totality. The trial judge did notundertake an analysis applying the principle of totality, but simply adjusted the sentences. This was an error and the Court must vary thesentence imposed. The total sentence is significantly longer than a normal level of sentence for the most serious of the offences.

The longest sentenceimposed by the judge for an individual count was two years. This is a factor supporting a reduction in the total sentence. The total sentence must reflect the number and gravity of the offences, that there were many offences of a serious nature committed overtime against a number of children, as well as consider the circumstances of the offender such as her age and the fact that she had nocriminal record. The aggravating factors must be balanced against W.S.’s prospects for rehabilitation. A total sentence that is harsh orcrushing must be avoided.

Deterrence, both general and specific, and denunciation must be given primary consideration. In the circumstances, an appropriate and proportionate total sentence was seven years and six months reduced by two hundred and eightdays to account for time served in pre-trial custody. Consequently, the appeal against sentence was allowed and the sentence reduced. Cases cited: R. v. F.(C.C.), (SCC), [1997] 3 S.C.R. 1183 R. v. E.(B.) (1999), (ON CA), 139 C.C.C. (3d) 100 (Ont. C.A.) R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211

Counsel: Randolph J. Piercey Q.C., for the appellant; Lisa M. Stead, for the respondent. This appeal was heard on September 16, 2016 before Welsh, Barry and Rowe JJ.A.

The following judgment was delivered on November 9, 2016 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] W.S. was found guilty and convicted of several offences committed against her children: five counts of unlawful confinement, four counts of criminal negligence causing bodily harm, six counts of assault, one count of endangering the morals of a child, and one count of contributing to a child being a child in need of protective intervention. She was also found guilty and convicted of one count of assault with a weapon, a knife, against her husband.

In addition, she entered a guilty plea and was convicted of breach of an undertaking and obstructing a police officer. She was sentenced to approximately twelve years imprisonment less time served in pre-trial custody. [ 2 ] W.S. appeals against the convictions regarding criminal negligence, assault and endangering the morals of a child, as well as her sentence. At the hearing of the appeal, she withdrew her application to adduce fresh evidence and to challenge the competence of her counsel at trial.

BACKGROUND [ 3 ] In February 2013, a police officer conducted recorded interviews with the six eldest of W.S.’s ten children. At the time, the six ranged from approximately seven to fourteen years of age. The interviews resulted from a report prepared by an area supervisor for the Department of Child, Youth and Family Services (the “Department”) alleging child abuse committed by W.S. and her husband. [ 4 ] The Crown proceeded by way of indictment on all charges. The charges may be summarized as follows.

(1) Unlawful confinement contrary to section 279(2) of the Criminal Code arose from confining the children in a room by tying the door shut with a rope and refusing them access to a washroom. After the evidence had been heard, of the seven counts, the trial judge dismissed two and accepted guilty pleas on five others ( 2014 NLPC 0514A00168 , 354 Nfld. & P.E.I.R. 180 ): [9] … (1) … At the close of the Crown’s case, the Crown acknowledged that there was no evidence supporting the unlawful confinement of [two named children]. I dismissed those charges (counts 21 and 31).

The accused changed her pleas to guilty with respect to the unlawful confinement of [five named children] at the start of the defence submissions. I accepted these guilty pleas and entered convictions on counts 1, 6, 11, 16 and 26. W.S. has not appealed these convictions.

(2) Criminal negligence causing bodily harm contrary to

section 221 of the Criminal Code arose from two types of incidents in which the trial judge held that, in addition to the serious risk to which the children were subjected, they suffered psychological harm. There were two types of incidents: the first involved the children being held over a bannister by their feet causing them to fear they would fall, including at least one occasion when the child was dropped; and the second involved the children’s heads being held under water in the bath so that they were unable to breathe causing them to thrash and fear they would drown.

The trial judge dismissed two counts on the basis of a lack of evidence, but convicted on four counts. With respect to one of the children, he explained: [78] [The child] has clearly been traumatized by the events in her home that have caused her to be placed in foster care. She is a very sad young girl. She experienced the fear of not being able to breathe when the accused held [her] head under water in the bathtub. She experienced the fear of being hung upside down over the rail and being dropped.

Even though she was caught by her father after the accused dropped her, [she] expressed the fear that she would land on her head and be hurt. She, too, was afraid of her mother’s anger and knew that if the accused was angry, the anger would be taken out on the children. She has clearly been affected by the systematic abuse inflicted on her and her siblings by the accused.

(3) The charges of assault contrary to

section 266 of the Criminal Code are based on the routine, excessive use of physical violence, slapping the children, including in the face, and punching them. In one incident, W.S. threw a large candle at a child, striking her in the head and leaving a large bump. In another incident, after a child used the washroom against W.S.’s wishes because she had just cleaned it, W.S. kicked him in the head, again leaving a bump. Based on this evidence, the trial judge entered convictions for offences

committed against six of the children. There was evidence from one child that W.S. beat the children with a belt. The trial judge was not satisfied that this type of assault hadbeen proven beyond a reasonable doubt and dismissed those counts.

(4) The conviction on the charge of endangering the morals of a child contrary to section 172(1) of the Criminal Code arose fromevidence that W.S. and her husband on several occasions engaged in sexual intercourse in front of the children and that “a number of thechildren were required to sit and watch while their parents did so” (paragraph 98).

(5) The trial judge convicted W.S. of assaulting her husband with a knife. That conviction was not appealed.

(6) Based on all the evidence, the trial judge convicted W.S. of the offence of willfully contributing to a child being a child in need ofprotective intervention pursuant to

section 76 of the Children and Youth Care and Protection Act, SNL 2010, c. C-12.2.

(7) W.S. pleaded guilty and was convicted of failure to comply with an undertaking contrary to section 145(3) of the Criminal Code byhaving contact with her husband, and obstruction of a police officer contrary to

section 129 of the Code. Those convictions were notappealed. [5] W.S. appeals against the convictions for criminal negligence, assaulting the children, and endangering the morals of a child onthe basis that the convictions are unsupported by the evidence and the verdicts are unreasonable. Should her convictions be upheld, sheappeals against her sentence on the basis that it is excessive and unduly harsh. ANALYSIS APPEAL AGAINST CONVICTION [6] The statements given to the police by five of the children were admitted into evidence under

section 715.1(1) of the CriminalCode, which provides: In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence isalleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim orwitness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice. [7] The purpose and effect of

section 715.1 is discussed in R. v. F.(C.C.), (SCC), [1997] 3 S.C.R. 1183. Cory J.,for the Court, explained: [19] It will be self-evident to every observant parent and to all who have worked closely with young people that children, even morethan adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. Theyounger the child, the more pronounced will this be. … It follows that the videotape which is made within a reasonable time after thealleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimonygiven later at trial. Thus the

section enhances the ability of a court to find the truth by preserving a very recent recollection of the eventin question. … [44] … There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include:(

a) the requirement that the statement be made within a reasonable time; (

b) the trier of fact can watch the entire interview, whichprovides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (

c) the requirement that thechild attest that she was attempting to be truthful at the time the statement was made. As well, the child can be cross-examined at trial asto whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability tocompensate for the inability to cross-examine as to the forgotten events.

Moreover, where the complainant has no independent memoryof the events there is an obvious necessity for the videotaped evidence. … [45] … Once the trial judge rules that the statement has been adopted, the video becomes the evidence of the events described as if thechild were giving the statements on the videotape in open court (L. (D.O.) (SCC), [1993], 4 S.C.R. 419], at p. 458).

Anadopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief ofthe complainant. … [47] If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not renderthose parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable.

The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than theevidence elicited at trial. In R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30, at p. 55, Wilson J. stated that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult.… While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened and who did it. [48] She concluded that, although each witness’ credibility must be assessed, the standard which would be applied to an adult’sevidence is not always appropriate in assessing the credibility of young children.

This approach to the evidence of children was

reiterated in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at pp. 132-34. There McLachlin J. acknowledged that thepeculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially those related toperipheral matters, should be assessed in context. A skillful cross-examination is almost certain to confuse a child, even if she is tellingthe truth. That confusion can lead to inconsistencies in her testimony.

Although the trier of fact must be wary of any evidence which hasbeen contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility. [8] W.S. submits that the trial judge erred by giving insufficient reasons and by failing to consider inconsistencies in the evidence asamong the children and by the children individually. Applying the principles set out in F.(C.C), the children’s evidence must be assessedin context. The statements to police were given individually by children who were between seven and fourteen years of age.

There was alapse of time between when the statements were given and when the children testified. In many cases during cross-examination, thechildren simply said they could not remember. This is consistent with the discussion in F.(C.C.) regarding the evidence of children. Theconduct was of an on-going nature, rather than one incident. The effect may have been to make it more difficult for the children to bespecific about where and when incidents took place, how one incident might have differed from another, and which of the children wereinvolved. [9] W.S.’s husband also gave evidence.

The trial judge accepted his testimony as to details such as where the family was living andthe layout of the various residences, the family having moved frequently. The judge specifically rejected the husband’s evidence oncrucial aspects of his testimony, giving reasons: [14] Under cross-examination, it was perfectly clear that on a substantial number of points in evidence that [the husband’s] testimonyconflicts with a recorded cautioned statement he gave to Corporal Marshall on May 30, 2013.

I find that [the husband] has not beenforthright and completely truthful at trial with respect to the allegation of assault with a knife committed by the accused against him; withregard to the bathtub allegations wherein the accused has been alleged to have held the children’s heads under water for an extendedperiod of time; with regard to the children’s allegations that the accused held them by the feet, or by an arm and a leg, over the rail in theClarke’s Beach residence; and with respect to the frequent assaults by the accused on the children. [15] It is significant to me that the accused and her husband were in contact with each other immediately prior to the start of their trialsand that [the husband] hopes to be with the accused when the court process is completed.

He has chosen to follow his loyalty to theaccused and recanted his statement to Corporal Marshall that the children were telling the truth. I reject his evidence where it conflictswith the children’s evidence. Criminal Negligence [10] W.S. submits that the trial judge erred by failing to analyze and deal with contradictions in the children’s evidence regarding theincidents of holding them by their feet over the bannister and of holding their heads underwater. The first point of contradiction relatesto where the incidents took place, that is, in which house.

It must be remembered that the children moved residences frequently. Therewas evidence that the houses where the children said they had been hung over a bannister did have a bannister that would allow this. Inthe circumstances, inconsistencies in the identification of the particular house or houses is a peripheral detail which falls within the kindof evidence discussed in F.(C.C.) and which is of little or no weight. [11] Second, the children said they were held by their feet over the bannister while one child told of an incident of being held by anarm and a leg.

The trial judge noted this, but did not comment further. Again, in the circumstances, this is the type of detail where someinconsistency might be expected. The evidence accepted by the trial judge was that W.S. had held the children so as to hang them overthe bannister thereby frightening them and causing psychological harm. [12] Third, the children gave some inconsistent testimony regarding the frequency with which the bannister incidents occurred andwhich children were involved.

Again, while the details differed somewhat from one child to another, the description of the generalnature of the conduct was the same. The evidence came from all the children who individually gave their statements to the police. Thismay be contrasted with the trial judge’s dismissal of the charge of assault with a belt on the basis of insufficient evidence: [43] One child alleges that the accused beat all of the children, except [one named child], with a belt.

She says that her mother wouldhit the girls first and then she would hit the boys. … [45] I have not heard any evidence from [the other four named children] about a belt being used by the accused to hit the children. [46] I conclude that it is probable that the accused struck at least [the child who made that statement] with a belt. However, I am notsatisfied that the Crown has proven [the counts alleging assault with a belt] beyond a reasonable doubt.

These charges are dismissed. [13] Regarding the charges related to holding the children’s heads under water, the trial judge accepted the evidence of the children: [59] With respect to the allegations that the accused held various children’s heads under water for a significant period of time, [onenamed child] stated that the accused would fill up the bathtub, wash their hair and push them down under the water allegedly to get thesoap out of their hair. [The child] stated that she could not breathe through her nose, was feeling like she was going to die, was scaredand was spitting up water.

She said this happened to her [and six other named children] … This happened three or four times. [60] [Another named child] stated that the accused would make the children lie down in the bathtub, then take all of their faces withtwo hands and force their heads under water. She said that it was almost like she blacked out. She indicates that the accused did this toall of the kids except [a named two]. [61] [Another named child] confirmed that the accused would push her head way down under the water until she could not breathe. This was happening while the accused was washing [the child’s] hair.

[14] In finding W.S. guilty, the trial judge concluded: [70] … I am being asked to infer psychological harm to the children from what they say in their statements together with theirtestimony and also their demeanor while giving their statements and testimony. [71] I have no evidence before me of any psychological harm suffered by [named child]. Therefore, count 33 is dismissed. [72] I have no evidence before me of any psychological harm suffered by [named child].

Therefore, count 23 is dismissed. [73] I do, however, have significant evidence before me of psychological harm having been done to [four named children]. I do nothave enough evidence before me to conclude that [named child] has experienced psychological harm to the extent necessary to groundbodily harm. In the absence of expert evidence, I cannot conclude that [that child] has suffered bodily harm.

Therefore, I dismiss count28. [15] Regarding the other children, the trial judge was satisfied that the charges of criminal negligence causing bodily harm had beenproven beyond a reasonable doubt based on psychological harm. W.S. did not challenge the legal conclusion that psychological harmmay constitute bodily harm under

section 221 of the Criminal Code. [16] I reject W.S.’s submission that the trial judge erred by failing to address whether holding the children’s heads underwater was“really an unconventional manner of washing a child’s hair, rather than a criminal act”. The judge discussed the effect on the childrenand the manner in which W.S. held their heads underwater sufficiently long for the children to feel they were drowning or going to die. [17] Finally, the differences in detail among the children and between their statements to police and testimony at trial relate toperipheral issues.

The language and descriptions were individual and could be attributed to the personalities and age-level of thechildren. Though the trial judge did not state this in specific language, it is clear from his summaries of the children’s evidence and hisdismissal of some claims for lack of evidence, that he was approaching the evidence as directed in F.(C.C.). [18] In

summary, there is no basis on which to conclude that the trial judge erred in his assessment of the evidence. His reasons,while not directed to inconsistencies in details as raised by W.S., indicated that he assessed the evidence as to various incidents in thecontext of the whole where the children’s evidence was consistent as to the nature of W.S.’s conduct. This approach took account of theindividual personalities and ages of the children in expressing themselves and describing incidents.

Applying the principles set out in F.(C.C.), the judge’s reasons were sufficient to ground his acceptance of the children’s evidence where he entered convictions. [19] Finally, regarding locking the children in their rooms, W.S. pleaded guilty after the Crown’s evidence was completed. She didnot make submissions directed to setting aside her plea. Accordingly, an appeal against those convictions must be dismissed. Assaults Against the Children [20] The trial judge convicted W.S. of assaulting the six children who gave statements to the police. He dismissed the chargesrelating to the other children.

In entering the convictions, the judge referred to the children’s descriptions of W.S.’s routine use ofphysical violence by slapping and punching them. The children used language such as hit, pound, smack across the face, punch, andkick to describe the routine conduct of W.S. In addition, the trial judge referred to two particular incidents: W.S. threw a large candleand hit one of the children on the head; and she kicked one of the children on the side of the head after he used a washroom contrary toher instructions.

The judge was satisfied that W.S.’s physical violence against her children was “clearly excessive” (paragraph 16). [21] W.S. submits that such violence should have left bruises which would have been apparent to teachers, for example. She pointsout that the Crown did not call corroborative evidence. [22] Again, similar statements and evidence were given by all the children, though their manner of describing W.S.’s actions differedfrom child to child.

Other than specific instances, such as throwing the candle and kicking a child’s head, the children describedcontinuing, routine use of physical violence when W.S. was angry. [23] While the trial judge did not specifically address the differences in the statements and testimony given by the children, it is clearfrom reading his decision as a whole that he relied on the basic consistency of the children’s evidence as to W.S.’s conduct in acceptingthe evidence as credible and as sufficient to prove beyond a reasonable doubt the offences for which he convicted. [24] The fact that the Crown did not produce corroborating evidence from other adults such as teachers who may have seen bruising isnot a basis on which to set aside the trial judge’s conclusions.

While such evidence would have assisted the Crown in proving its case, itwas not necessary where the judge determined that there was sufficient evidence to prove the charges. [25] In the circumstances, for the reasons set out above with respect to the convictions for criminal negligence, there is no basis onwhich to set aside the convictions for assault against the children. (See paragraphs 17-18, above.) Endangering the Morals of a Child [26] Section 172(1) of the Criminal Code provides: Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any otherform of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of anindictable offence and liable to imprisonment for a term not exceeding two years. [27] In assessing the application of this provision, the trial judge began with a consideration of the language and legislative intention.

The judge accepted that “endanger” means to put at real risk (paragraph 86). For an

interpretation of section 172(1), the judge adoptedthe analysis set out in R. v. E.(B.) (1999), (ON CA), 139 C.C.C. (3d) 100 (Ont. C.A.). Doherty J.A., for the Court,

explained: [41] The morals of a child will be endangered by sexual immorality where sexual conduct presents a real risk that the child will not develop an understanding that exploitive or non-consensual sexual activity is wrong. Similarly, if the conduct degrades or dehumanizes women, it endangers the morals of the child in that the child will not develop an understanding that all persons are equal and worthy of respect regardless of gender.

Furthermore, to the extent that the conduct actively involves the child, it may endanger the morals of that child by leaving him or her without a proper sense of his or her own self-worth and autonomy.

Finally, to the extent that the conduct imperils the child’s understanding of parents’ responsibilities to protect and nurture their children, it may also imperil the morals of a child. [42] … As a first step, the trier of fact will have to decide whether the child was aware of the conduct and was able to appreciate the conduct to the extent that it could influence the development of the child’s value system. … (Emphasis added.) [ 28 ] In addition, the trial judge adopted two further principles stated in E.(B.) : first, an assessment of what constitutes sexual immorality under section 172(1) will depend on the context and the circumstances surrounding the conduct; and, second, the standard against which the conduct is measured is an objective standard of what the community as a whole will tolerate.

Doherty J.A, explained: [36] … The conduct must be sexual in nature and must, considering the circumstances, go beyond what the community is prepared to tolerate.

That determination is made in part based on the assessment of the harm which may flow from exposure by the particular audience to the conduct. [ 29 ] W.S. does not challenge these principles of law, which I accept as correct. [ 30 ] After considering the E.(B.) decision the trial judge summarized instances from the children’s evidence before concluding: [98] I accept the children’s testimony that their parents had sex in front of them on several occasions and that a number of the children were required to sit and watch while their parents did so. [99] I am satisfied beyond a reasonable doubt that this conduct goes beyond what the community is prepared to tolerate.

I find that this clearly endangered the morals of these children and, as stated by Justice Doherty, “to endanger is to put at risk.” This conduct imperils the children’s understanding of parents’ responsibility to protect and nurture children. [ 31 ] However, there are two types of behaviour at issue which the trial judge dealt with as one. All five of the children who gave statements to the police said that they had seen their parents engaging in sexual intercourse.

This occurred on occasion by accident and, at other times, by the parents’ failure to take steps to achieve privacy. [ 32 ] The second type of behaviour, requiring or asking the children to watch their parents engage in sexual intercourse, is contained in the statements of just two of the children. This distinguishes the evidence from the other circumstances in which the judge entered convictions where the evidence of the general nature of the conduct was gleaned from the evidence of all the children.

Further, where such evidence was lacking, the judge dismissed the charge, as, for example, in the case of assault with a belt. [ 33 ] In the circumstances, the trial judge erred by failing to deal separately with the second type of behaviour and to explain why he accepted the evidence of the two children.

The effect for purposes of the appeal is that the Court cannot rely on the children’s statements that they were required or asked to watch their parents engage in sexual intercourse. [ 34 ] That said, the evidence of all the children was that they were regularly subjected to seeing their parents engage in sexual intercourse as a result of their parents’ failure to take any steps to achieve privacy. The trial judge accepted that evidence.

Again relying on the principles set out in F.(C.C.) regarding the evidence of children, as discussed above, there is no basis on which to set aside the judge’s finding of fact. [ 35 ] However, the question is whether the reckless actions of W.S. in failing to take steps to achieve privacy when engaging in sexual intercourse go beyond what the community is prepared to tolerate. That determination requires a consideration of the harm that may flow from exposure to the conduct by the particular audience, here, impressionable children.

In the circumstances, I am satisfied that W.S.’s conduct was such as to imperil the morals of the children as discussed in E.(B.) because that conduct imperiled the children’s understanding of a parent’s responsibilities to protect and nurture their children’s development in a manner that is consistent with the needs of those children. An occasional, accidental incident must be distinguished from a complete disregard for the responsibility of parents to consider the ages, level of maturity, and sensibilities of their children.

Indeed, the reaction of these children to their parents’ behaviour indicates that even they could not tolerate such conduct. [ 36 ] In the result, W.S.’s appeal against the conviction under section 172(1) of the Criminal Code , endangering the morals of a child, must fail. However, the foundation for the offence is the less serious conduct of failing to take measures to achieve privacy when engaging in sexual intercourse.

Summary – Appeal Against Conviction [ 37 ] In

summary, the omission by the trial judge to address inconsistencies in the evidence as among the children and by the children individually is not a basis on which to set aside the convictions. A reading of the judge’s decision as a whole leads to the conclusion that he was alive to the relevant law regarding assessing the evidence of children and that he considered whether the evidence proved W.S.’s guilt beyond a reasonable doubt on each count. [ 38 ] Accordingly, I would dismiss the appeal against the convictions for criminal negligence causing bodily harm and assault against the children.

I would dismiss the appeal against the conviction for endangering the morals of a child, but would limit the basis of the

conviction to failing to take measures to achieve privacy when engaging in sexual intercourse. APPEAL AGAINST SENTENCE [39] The Crown proceeded by way of indictment on all counts under the Criminal Code. Before considering the question of totality,the trial judge assigned the following sentences to the counts for which W.S. was convicted: 1. Criminal negligence causing bodily harm (section 221 of the Criminal Code): two years for each of four counts (eight years in total); 2. Assault against the children (section 266 of the Code): one year for each of six counts (six years in total); 3.

Unlawful confinement (section 279(2) of the Code): two years concurrent for five counts (two years in total); 4. Endangering the morals of a child (section 172(1) of the Code): two years for one count; 5. Assault with a weapon against the husband (section 267(

a) of the Code): six months; 6. Failure to comply with an undertaking (section 145(3) of the Code): two months; 7. Obstructing a police officer (section 129 of the Code): twenty-eight days; 8. Willfully contributing to a child being a child in need of protection (section 76 of the Children and Youth Care and Protection Act):six months.

This amounts to a total of nineteen years and three months. (The trial judge made an arithmetical error in calculating the total to betwenty-two years and ninety days (sentencing decision, 2014 NLPC 0514A00168, 354 Nfld. & P.E.I.R. 193, at paragraph 64).) [40] W.S. has not challenged the above individual sentences, but submits that the trial judge erred in his consideration of the totalsentence. Nonetheless, there is one sentence that requires review; that is, the two-year sentence for the offence of endangering themorals of a child (section 172(1) of the Code). Two years is the maximum sentence for this offence.

As discussed above, the evidenceof the two children who said they were required or were asked to watch their parents engage in sexual intercourse cannot be relied uponfor purposes of sentencing on this count. Rather, the foundation of the offence is the less serious conduct of failing to take measures toachieve privacy when engaging in sexual intercourse.

Based on the reduced seriousness of the offence, the sentence imposed by the trialjudge must be varied. [41] In the absence of case law that would assist in establishing a range of sentence for this offence in similar circumstances, it ishelpful to compare the seriousness of this count with that of the other offences, in order to determine an appropriate sentence. I wouldconsider this offence to be moderately less serious than the counts of criminal negligence, unlawful confinement, and assaulting thechildren. The lowest sentence imposed for those offences is one year imprisonment.

In the circumstances, an appropriate sentence forthe count of endangering the morals of a child would be imprisonment for a term of nine months. Given the change in the basis for theoffence, it is unnecessary to consider the appropriateness of the two year sentence imposed by the trial judge. The reduction of fifteenmonths results in a variation of the total sentence from nineteen years and three months to eighteen years. [42] I turn next to the issue raised by W.S. which focuses on the total length of sentence.

Because sentencing here involves multipleoffences, the appeal engages consideration of the principles, including totality, discussed in detail in R. v. Hutchings, 2012 NLCA 2, 316Nfld. & P.E.I.R. 211. I begin with the presumption that sentences are to be imposed consecutively: [20] The first step in sentencing in the context of multiple convictions is therefore to determine the appropriate sentence for eachindividual offence, applying the full range of applicable sentencing principles.

The sentences so arrived at should presumptively beimposed consecutively. [21] The second step is to consider whether some or all of the offences are related in a manner such that they can be considered a singlecriminal adventure. If so, those that are so regarded should generally be made concurrent with the heaviest sentence arising out of thatsingle criminal adventure. … [22] In some cases, separate offences of a similar type, though committed at separate times can be considered to constitute a singleevent for the purpose of this principle.

In Crocker [(1991), (NL CA), 93 Nfld. & P.E.I.R. 222], Goodridge C.J. referred, for example, to a “single rampage”. In other cases, separate offences amounting to a repetition of the same behaviour towardsthe same victim have been described as a “single transaction” and have likewise been regarded as sufficiently interrelated to attract theapplication of the principle. … [43] In this case, the trial judge dealt with the counts regarding unlawful confinement by applying this principle.

He concluded that,since the victims were confined together in a room, this amounted to “one criminal event even though it went on for a significant periodof time” (sentencing decision, at paragraph 64). Accordingly, the judge imposed five two-year terms to be served concurrently. Thatdetermination has not been challenged by W.S. or the Crown. [44] The third step in assessing the sentence for multiple convictions is a consideration and application of the principle of totality.

This principle applies: [83] … where an overall sentence may be regarded as unduly long or harsh and as such requires adjustment to ensure that theproportionality principle is observed. The proportionality principle is set out in

section 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 45 ] Factors that assist in applying the totality principle, insofar as they are relevant in the particular circumstances, are set out in Hutchings , at paragraph 84 : 5. … (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. [ 46 ] If a sentence requires adjustment due to application of the totality principle, this may be achieved by making some sentences concurrent or, if that does not achieve the desired result, by reducing the length of an individual sentence below what it would otherwise have been. [ 47 ] In this case, the trial judge was satisfied that the total sentence would be unduly harsh, and “in keeping with the principle of proportionality” he adjusted the sentences to achieve a total of eleven years, five months and twenty-eight days. (The trial judge made arithmetical errors in calculating the sentence reduced for totality to be twelve years, two months and twenty-eight days.) [ 48 ] Although the trial judge referred to the approach set out in Hutchings , he did not undertake an analysis applying the principle of totality, but simply adjusted the sentences.

This constituted an error. It is necessary, then, to review the judge’s determination regarding the total sentence. The judge’s sentencing decision addresses relevant considerations such as the nature of the offences, victim impacts and positions of the Crown and W.S. [ 49 ] At trial, excluding credit for pre-trial custody, the Crown submitted that an appropriate total sentence would be fourteen years and six months imprisonment while W.S. submitted that a total sentence of eight years and two months would be appropriate.

These do not take account of the reduction of fifteen months for the offence of endangering the morals of a child discussed above, which varied the total for the individual sentences from nineteen years and three months to eighteen years.

On the appeal, W.S.’s counsel submits that a sentence in the range of five to seven years would be appropriate. [ 50 ] Turning to the factors set out in Hutchings regarding the principle of totality, I begin by noting that the total sentence is significantly longer than a normal level of sentence for the most serious of the offences; that is, criminal negligence causing bodily harm, assault against the children, and unlawful confinement. The longest sentence imposed by the judge for an individual count was two years.

This is a factor supporting a reduction in the total sentence. [ 51 ] Applying the second factor referenced in Hutchings , the number and gravity of the offences, there were many offences of a serious nature committed over time against a number of children. The trial judge summarized, in his sentencing decision: [49] The facts of this case are appalling. They show an almost systematic pattern of torture of these young children. The accused regularly and repeatedly punched, slapped or otherwise hit her children.

She regularly tied the bedroom door closed which led to five of her daughters having to soil their clothing at night to obtain relief. She dangled several of the children over the staircase railing, even dropping two of them who were caught by their father thereby avoiding significant physical injuries to the children. She held the heads of four of the children under water making them fight to breathe. She held a knife to the throat of her husband in the presence of her children.

She and her husband performed sex acts in front of a number of the children … . [50] The acts committed by the accused fit into the category of unimaginable. The accused has breached many of the expectations of a parent. In so doing, she does not accept, understand or appreciate that there is anything wrong with her conduct. She still wonders, according to the presentence report, why the children are making these things up about her. She continues to deny assaulting, harming or mistreating her children in any manner.

This is noteworthy given that she pleaded guilty to five (5) counts of unlawful confinement thereby admitting the allegations. She takes no responsibility for her actions, has no sense of victim empathy and lacks insight into the seriousness of her actions. [ 52 ] The trial judge also referenced the testimony of a social worker who prepared the victim impact information, noting that all the children, except the youngest, received family therapy services and six have received behaviour management services.

He referred to a “general aura of hurt, sadness and anger among the children” (sentencing decision, at paragraph 48), and to “prolonged tortuous behaviour perpetrated against multiple victims” (paragraph 52). The total sentence must reflect all these factors. [ 53 ] The third and fourth factors set out in Hutchings relate to the circumstances of the offender; that is, whether she had a criminal record and how a lengthy sentence may affect her prospects for rehabilitation in the sense that the sentence may be harsh or crushing. W.S. was thirty-three years old at the time of sentencing and had no criminal record.

However, the trial judge identified aggravating factors including the serious breach of trust towards her young, vulnerable children over a lengthy period of time. In addition, he applied

section 718.01 of the Criminal Code which requires the court to give “primary consideration to the objectives of denunciation and deterrence” where an offence involves the abuse of a child under eighteen years of age. These factors must be balanced against W.S.’s prospects for rehabilitation. A total sentence that is harsh or crushing must be avoided. [ 54 ] As discussed below, in the circumstances, applying the Hutchings analysis, a total sentence of eighteen years, as calculated above, is not proportionate or appropriate but would amount to an unduly long or harsh sentence.

Neither is the total sentence of eleven years, five months and twenty-eight days imposed by the trial judge proportionate to the gravity of the offences and the degree of

responsibility of the offender because it fails to take sufficient account of the circumstances of the offender and of the sentences imposed for the individual offences. A further consideration is an adjustment for the reduction of fifteen months relating to the offence of endangering the morals of a child. [ 55 ] In the result, the total sentence imposed by the trial judge must be varied and an appropriate sentence imposed by this Court (section 687 of the Criminal Code ).

W.S.’s submission at trial was for a sentence of eight years for the substantive offences together with two months in total for the offences of failure to comply with an undertaking and obstruction of a police officer. On appeal, her submission is that a total sentence of five to seven years would be appropriate. The Crown maintains that the sentence imposed by the trial judge is appropriate. [ 56 ] Deterrence, both general and specific, and denunciation must be given primary consideration (section 718.02 of the Code ). The trial judge gave minimal weight to rehabilitation. I agree.

W.S. was provided with significant resources from social services, but she did not take the opportunity to improve her parenting. In his sentencing decision, the trial judge commented: [22] Crown counsel highlighted the numerous intervention services offered to the accused including counselling, respite and programs. Much of these services were discontinued due to her non-compliance or failure to attend appointments. [23] Crown counsel argues that the accused must have taken considerable efforts to hide the abusive behaviour including the fact that many of the events occurred around bedtime.

Even the oldest child would cover her bruises and encourage her siblings to do so as well. [24] Victim impact has been provided to the court. The common theme is that the children have been seriously impacted by the accused’s behaviour; several of them are still in counselling; their family unit has been destroyed as the children have been separated into multiple homes; and the victims, collectively, dislike the accused.

Nonetheless, these factors must be considered in light of W.S.’s age and the fact that she had no criminal record. [ 57 ] In the circumstances, an appropriate and proportionate total sentence is seven years and six months. Accordingly, I would adjust the sentences as follows: 1. Criminal negligence causing bodily harm (section 221 of the Criminal Code ): two years for each of four counts, to be served concurrently (two years in total); 2.

Assault against the children (section 266 of the Code ): one year for each of six counts, with counts 5 and 10 to be served consecutively, and counts 15, 20, 25 and 30 to be served concurrently (two years in total); 3. Unlawful confinement (section 279(2) of the Code ): two years for each of five counts, to be served concurrently (two years in total); 4. Endangering the morals of a child (section 172(1) of the Code ): nine months for one count, consecutive; 5. Assault with a weapon against the husband (section 267(

a) of the Code ): six months, concurrent; 6. Failure to comply with an undertaking (section 145(3) of the Code ): two months, consecutive; 7. Obstructing a police officer (section 129 of the Code ): one month, consecutive; 8. Willfully contributing to a child being a child in need of protection (section 76 of the Children and Youth Care and Protection Act ): six months, consecutive. [ 58 ] Finally, as set out by the trial judge, the sentence will be reduced by two hundred and eight days to account for time served in pre-trial custody.

SUMMARY AND DISPOSITION [ 59 ] In

summary, I would dismiss the appeal against the convictions for criminal negligence causing bodily harm and assault against the children. I would dismiss the appeal against the conviction for endangering the morals of a child, but would limit the basis of the conviction to failing to take measures to achieve privacy when engaging in sexual intercourse. I would affirm the remaining convictions. [ 60 ] I would vary the sentence for endangering the morals of a child and impose a sentence of nine months imprisonment.

I would allow the appeal against sentence on the basis that the trial judge did not undertake an appropriate analysis in considering the principle of totality. In the result, I would vary the total sentence by imposing a total sentence of seven years and six months as set out in paragraph 57, above, reduced by two hundred and eight days to account for time served in pre-trial custody. Appeal allowed in part.