R v Marr, 2023 ABKB 648

Court of King’s Bench of Alberta Citation: R v Marr, 2023 ABKB 648 Date: 20231110 Docket: 210713467Q1 Registry: Calgary Between: His Majesty the King Crown - and - Janine Marie Marr Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainants must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Sentencing Judgment of the Honourable Justice J.C. Price _______________________________________________________ I. Introduction [ 1 ] These are my oral reasons for decision in the sentencing of Janine Marie Marr.

I may publish these oral reasons but if I do, I will not make any substantial changes to them. If a transcript of these reasons is requested, I reserve the right to edit the transcript for non-substantive errors including correcting spelling, punctuation and grammar and adding citations and headings.

[ 2 ] On February 16, 2023, Ms. Marr was convicted by a jury on four counts pursuant to sections 266 and 267 (

a) of the Criminal Code , involving the physical abuse of her niece (“H”) and nephew (“M”). [ 3 ] The issue in this sentencing hearing is to determine what a fit sentence is for Ms. Marr. [ 4 ] The Crown argues for a sentence of 12-18 months incarceration, plus probation and ancillary orders that include a 10-year weapons prohibition and DNA order. The Defense proposes an absolute discharge, or in the alternative, that a 12-month conditional discharge be imposed. II. Facts A.

Circumstances of the Offences [ 5 ] H, M, and their sibling (“S”) were removed by Children’s Services from the care of their biological parents and placed in their elderly grandmother’s care in 2018. Another child (“N”), Ms. Marr’s great-nephew, joined the other children sometime in 2021. Their grandmother is Ms. Marr’s mother, and Ms. Marr is their aunt. For clarity, H and M’s biological mother is the biological sister to Ms. Marr. [ 6 ] Ms. Marr became involved in their daily lives while helping her mother, the children’s grandmother, care for the children. [ 7 ] During the period of 2018 to 2021, Ms.

Marr assaulted H and M using her bare hand, a miniature hockey stick, and a computer stick. The hockey stick was a small plastic hockey stick that was approximately 1.5-2 ft long and approximately ½-1 inch thick, and 1-2 inches wide. The computer stick had roughly the same dimensions. [ 8 ] H was between the ages of 8 to 11 and M was between the ages of 7 and 9 years old when the assaults took place. [ 9 ] M was slapped on the head and hit on his body (at times his bare butt, arm(s), leg(s), back, and torso) multiple times by Ms. Marr, with the hockey stick and computer stick.

This occurred when M was not behaving as Ms. Marr expected him to, for example, if he did not do his chores; if he did something bad that he should not be doing; if he did not do his math homework right, if he was being bad at school. [ 10 ] H was slapped or spanked on the head and back by Ms. Marr and hit on her body (at times her bare butt) with the hockey stick and computer stick when she was not behaving as Ms. Marr expected her to. [ 11 ] The assaults did not cause bleeding or bruising, did not require medical attention, and did not result in any permanent physical injury.

There was no evidence of psychological harm presented to the jury. [ 12 ] The abuse was carried out by Ms. Marr’s desire to discipline the children. It was not drawn out or part of a pattern of escalating abuse. There is no evidence that Ms. Marr enjoyed disciplining the children. B. Ms. Marr’s Background and Gladue Report [ 13 ] Sentencing is a highly individualized exercise: R v Parranto , 2021 SCC 46 at para 113 . A sentence must be customized to address the specific circumstances of both the offender and the offence in order to achieve proportionality.

As such, the circumstances of the offender must also be carefully assessed in order to properly engage in a contextual analysis. [ 14 ] A Gladue Report dated October 5, 2023, was prepared for Ms. Marr and submitted for my review and consideration. [ 15 ] Ms. Marr is 47 years old and is divorced. She has two adult children and two grandchildren whom she has relationships with and visits frequently. She is currently in a healthy relationship with her partner of 9 years. [ 16 ] Ms. Marr helps care for her elderly mother full time who recently suffered an accidental overdose of prescription medication.

She helps her elderly mother by cooking, cleaning, and caring for her. Ms. Marr is committed to finding supportive living facilities for her mother’s long-term care needs. [ 17 ] Ms. Marr has a grade 11 education. She has historically worked in the hospitality industry as a housekeeper. Currently she is a student at QCOM College of Technology pursuing her Medical Office Assistant diploma. When she is not caring for her elderly mother, she studies and attends class in the evenings. She expects to graduate with her Medical Office Assistant Diploma in 2024. Ms. Marr has no prior criminal record. [ 18 ] Ms.

Marr is one of four siblings born into the Shubenacadie Reservation in Nova Scotia. Her father died when she was 2 or 3 years old. Her mother and stepfather moved the family to Calgary when Ms. Marr was 7 years old. Ms. Marr is Mi’kmaq and a registered member of the Shubenacadie First Nation. [ 19 ] Both of Ms. Marr’s parents are survivors of the Shubenacadie Residential School: an institution with a particularly well- known history of abuse, malnutrition, punishment, and other atrocities perpetrated by priests and nuns against the Indigenous children who were forced to attend the school. Ms.

Marr’s grandparents and other ancestors were also forced to attend this Residential School. [ 20 ] Ms. Marr feels that she has no connection to the Shubenacadie First Nation and is a member in name only. She does not know her language or culture, participate in ceremony, or have connections to her Mi’kmaq family.

[ 21 ] It is certain that Ms. Marr suffers from intergenerational trauma affected by the legacy of residential schools, including its legacy of physical and sexual abuse, trauma, and disconnection from culture, language, and family. [ 22 ] When Ms. Marr was 7 and again when she was 10, she experienced sexual abuse by a family member, and was disbelieved by her mother and stepfather when she reported it. She was also physically abused by her stepfather and mother during her childhood. [ 23 ] Ms. Marr witnessed domestic violence between both her father and mother, and between her stepfather and mother.

She later experienced domestic violence against her and her child by her ex-husband. [ 24 ] Ms. Marr’s 2 children were apprehended and placed in foster care. When they were released from foster care they were placed in her ex-husband’s care. She believes that racism was a factor in the Child and Family Services’ decision to place her children with their Caucasian father. [ 25 ] All three of her parents struggled with alcohol. Ms. Marr herself also struggled with alcohol, but not since she completed the Sunrise Healing Lodge treatment program in the early 2000s. [ 26 ] Ms.

Marr continues to suffer with unresolved trauma because of her experiences of sexual abuse, physical abuse, and racism. After her sister passed away, she received grief counselling, but has never received counselling for the sexual, physical, emotional, and domestic abuse that she experienced as a child and an adult. [ 27 ] She has recognized her need to pursue counselling for her unresolved trauma and has made an action plan to access mental health resources.

She also has made an action plan to reconnect to her culture and plans to access Indigenous specific mental health resources and cultural support services as part of that reconnection. She will pursue a connection with the Elbow River Healing Lodge and Native Counselling Services of Alberta in that respect. C. Impact on the Community [ 28 ] A victim impact statement was prepared and submitted by S that has been considered by me. S is a family member. She is the niece to Ms. Marr and is the older sister to M and H.

Her statement describes her feelings of fear and emotional hurt by what she witnessed and experienced while the children were under the care of her grandmother and Ms. Marr. [ 29 ] S explained that the children were removed from their grandmother’s and aunt’s care. She described her feelings of helplessness and expressed that she is receiving counselling and is in a good place surrounded by good people in her life. III. Sentencing Positions [ 30 ] The Crown submits that a fit sentence for Ms.

Marr is 12-18 months imprisonment, including consecutive sentences accounting for the number of victims and number of instances of abuse. The Crown also seeks a 10-year weapons prohibition, a DNA order, and that probation conditions follow the sentence. [ 31 ] The Defence submits that an appropriate sentence is an absolute discharge. Alternatively, the Defence proposes a 12-month conditional discharge. [ 32 ] I will discuss the relevant sentencing principles, then determine the gravity of the offence, degree of blameworthiness, and aggravating and mitigating factors.

I will also review the cases relied on by the Crown and Defence to assist me in ensuring sentence parity. IV. Sentencing Principles, Objectives and Factors [ 33 ] The guiding principles of sentencing are set out in s. 718 of the Criminal Code . These statutory provisions provide a comprehensive outline of the factors that I must consider in sentencing. The objectives outlined in s. 718 are as follows: 718.

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 34 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender:

section 718.1 of the Code .

[35] In imposing a sentencing, I am to consider the following principles all of which are set out in

section 718.2 of the Code andinclude: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender […]; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm doneto victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [36]

Section 718.2(

e) provides the “restraint” principle, with particular attention to Indigenous offenders. The legislative intent ofthis

section was to respond to and combat the overrepresentation of Indigenous people in incarceration facilities in Canada, stemmingfrom the violence of colonialism. I am under a duty to give true effect to the intent of this legislation. I recognize specifically the contextof overincarceration of Indigenous women in Canada and Alberta. I will discuss this more later. [37] Although I have the discretion to render a sentence that takes into consideration the type of offence and the circumstances ofthe offender, my discretion is limited by the case law and the Code.

The case law limits my discretion by setting down general ranges ofsentences for particular offences.

The Code limits my discretion by prescribing minimums or maximums for punishment. [38] I am permitted to impose a sentence outside the general range set by the case law provided that the sentence I impose accordswith the applicable sentencing principles and objectives and providing that I do not override the legislative intent and reduce a sentencebelow a statutorily mandated minimum: R v Nasogaluak, 2010 SCC 6 at paras 44,45. [39] Furthermore, I am mindful of the principle that a first sentence of imprisonment, especially for a first offender, should be asshort as possible and tailored to an offender’s individual circumstances, rather than imposed solely for the purpose of general deterrence:R v JH (ONCA). [40] Also, I am aware that the Court of Appeal has declined to set a sentence starting point for child abuse cases: R v Nickel, 2012ABCA 158 at para 18.

A. Aggravating and Mitigating Factors [41] In arriving at an appropriate sentence, I must consider the aggravating and mitigating factors relating to the offence and to theoffender. As earlier stated,

section 718.2(

a) of the Code requires me to ensure that a sentence is “increased or reduced to account for anyrelevant aggravating or mitigating circumstances relating to the offence or the offender”. [42] The aggravating and mitigating factors as presented by the parties are as follows: 1. Aggravating [43] The aggravating factors in Ms. Marr’s case are related to the power imbalance between herself and the children, and theongoing nature of the abuse. [44] It is aggravating that the children were both under 18 years of age (section 718.2(a)(ii.1)), and Ms.

Marr was in a position oftrust in relation to them (section 7.18.2(a)(iii)). [45] Evidence that the offence had a significant impact on the victims is an enumerated aggravating factor (section 718.2(a)(iii.1)),and this is captured by the victim impact statement. [46] M and H are Indigenous children who have experienced foster care, the addictions of their parents, and the loss of theirparents.

The fact that there were multiple victims who were both vulnerable due to their personal circumstances is aggravating as well(section 718.04). [47] Finally, the abuse took place in the children’s home, and by a person who was in a position of authority over them breachedher duty of care and protection, in a repeat nature. 2. Mitigating [48] The Crown submitted that there are no mitigating factors. [49] The Crown says that the absence of a criminal record in this case is not a mitigating factor, it is a neutral factor. I disagree.

Insupport I rely on the recent case of R v Bertrand Marchand, 2023 SCC 26, wherein, at paragraph 127 Justice Martin states: …[T]he representative offender entered a guilty plea, expressed remorse on sentencing and has no prior criminal record — all of whichare significant mitigating factors.

[ 50 ] Furthermore, I add that given Ms. Marr’s Gladue factors, the hardships she has faced in her 47 years to avoid a criminal conviction in the face of those Gladue factors, is an indicator to me that no criminal record is mitigating. If not having a criminal record in this case is not considered a mitigating factor, then I find Ms. Marr not having a criminal record to be exceptional and that it should factored into my decision on her sentence. [ 51 ] Furthermore, I find that it is a mitigating factor that Ms. Marr has been compliant with her bail release conditions.

These bail release conditions have been imposed on Ms. Marr since January 13, 2022 – almost 2-years. She has been compliant throughout. If her compliance with her release conditions is not mitigating, then I find her compliance to be exceptional, and a factor to be considered in my decision on her sentence. [ 52 ] Further, considering the Gladue Report, I take notice of the fact that Ms.

Marr has been honest and cooperative throughout the sentencing process, accordingly I find her conduct is a mitigating factor. [ 53 ] Pursuant to the Gladue Report and update as provided by her counsel as to her circumstances, all of which I have considered, Ms. Marr recognizes that her offending behavior stems from her unresolved trauma, rooted in her experiences of violence during her childhood and adulthood. She has committed to a healing plan via which she will undertake counselling.

This information contained in the Gladue Report and submission of counsel is representative of her remorse and insight into the offences for which she is charged, accordingly I find this to be a mitigating factor. [ 54 ] Finally, I add that the Gladue factors set out in the Gladue Report mitigate her moral blameworthiness. B. Parity of Sentences [ 55 ]

Section 718.2 of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences considered in similar circumstances. This principle is commonly referred to as parity in sentencing and it requires the Court to justify disparities between sanctions for comparable offences in order to reduce unjustified distinctions between offenders who are otherwise similarly situated: see R v Ipeelee , 2012 SCC 13 . [ 56 ] Ensuring that similar offences attract similar punishment helps to ensure proportionality in sentencing.

Put another way, parity gives meaning to proportionality: R v Friesen 2020 SCC 9 at paras 32 ,33. That said, similarity is often an illusory concept, and it is difficult to draw a true parallel between the authorities and the case at bar. They do, however, offer guidance in that cases may be compared and contrasted in an effort to effect fairness and consistency in sentencing. [ 57 ] The Crown provided the following cases in support of its proposed sentence: (

a) R v Nickel , 2012 ABCA 158 : A father pled guilty to aggravated assault for putting his 9-month-old child’s feet into almost boiling water, out of curiosity. He then attempted to conceal the injury and lied to the child’s mother about the incident. The child sustained 3 rd degree burns and was diagnosed with PTSD. The child still developed the ability to walk, with some resulting difficulty. The trial judge imposed a 90-day incarceration sentence which was replaced with a 3-year sentence on appeal. (

b) R v KSH , 2015 ABCA 369 : A father was convicted of aggravated assault against his 13-week-old child. He threw the infant against a mattress with the force equivalent to a fall from a 2-3 storey building. The child ricocheted and hit a metal chair, causing a severe brain injury, hematoma, hemorrhages, and long-term cognitive impairment. The accused had no criminal record, pled guilty, and was very remorseful. His 90-day sentence was overturned on appeal due to the trial judge’s overemphasis on the father’s lack of subjective intent to injure the infant. His resulting sentence was 3 years’ incarceration. (

c) R v Pope , 1994 CarswellAlta 506, [1994] AJ no 146 : A father was convicted of assault causing bodily harm for beating his 3-year-old child with a belt causing bruising all over her body. The accused lost his temper and took his anger out on the child. The sentence was 12 months incarceration, including a 2-month deduction for pre-trial custody. (

d) R v Heap , 1994 ABCA 330 : The accused pled guilty for assault causing bodily harm. He assaulted his common-law partner’s 18-month-old child because he was angry and jealous of the amount of time his partner was devoting to the child. The child sustained concussions. The trial judge imposed a sentence of 1 year probation and a $1000 fine. On appeal, the sentence was replaced with 6 months incarceration including 2 months credit for his guilty plea. The accused had a prior unrelated criminal record. (

e) R v Harris , 2011 ABCA 41 : The accused eventually pled guilty to assault with a weapon, for repeatedly beating his 9-year- old child on the buttocks with a belt, resulting in scabs and abrasions. This abuse was part of a long pattern including forcing the child to walk up and down the stairs multiple times, forcing them to eat hot sauce, and removing their mattress and blankets. His 12-month conditional sentence was replaced with 9 months incarceration on appeal. (

f) R v RGB , 2017 ABCA 359 : The accused struck his 1-year-old child across the face causing bruising and scratching. There was evidence that the child was struck multiple times during the assault but there were no permanent injuries. He was intoxicated at the time of the assault in breach of a recognizance condition. He was Indigenous but waived his Gladue report. He had a dated criminal record for assaults. His sentence of incarceration for two years less a day was upheld on appeal. (

g) R v RAC , 2022 ABPC 6 : The accused was convicted of six counts of common assault after he repeatedly beat his six children with a wooden dowel as part of his religious practice as a “disciplinarian”. The abuse was found to be “excessively violent”, often coupled with intimidation, angry yelling, and “out of control rage”. He received a 14.5-month incarceration sentence. 12 months of the sentence was imposed specifically for the repeated assault of one of the children. (

h) R v TG , 2012 ABPC 251 : The accused pled guilty to one count of assault causing bodily harm for abusing his girlfriend’s 2- year-old child as part of a pattern of physical and psychological discipline. He was also a “disciplinarian”. His practice included such punishments as forcing her to stand with her arms in the air for 10 minutes. During the assault in question, he pinned the child down and

bit her body multiple times. The child sustained bruising and bite marks. During the assault, the accused was yelling, including “are you scared now? You should be!”. A pediatrician ‘s report identified 27 individual injuries to the child’s face and body. The accused was Indigenous and his Gladue report showed that the abuse was a learned behavior as part of the impact of residential schools. He was a young offender with no criminal record and provided an apology.

The sentence was 18 months of incarceration plus 24 months of probation. [ 58 ] The Crown stated in its brief that the cases they provided “are not similar enough such that the Court could consider them to be a precedent”. I find that all the cases provided by the Crown involved more serious injury to, and higher levels of violence towards, children. Almost all the cases cited by the Crown involve uncontrolled anger as the motivator for the violence against children, and both physical and psychological intimidation as an element of the abuse.

I do not find these factors, at the level as described in these cases provided by the Crown, present in this case before me. [ 59 ] The Crown also stressed the principles espoused in Friesen ; I accept the Defence’s arguments in response to the Crown’s submissions on Friesen . The facts of that case are entirely distinguishable from the case before me. [ 60 ] Two additional cases were provided by the Crown. These cases are summarized as follows: (

a) R v H (BM) , 2016 ABQB 622 , the offender was convicted of assault with a weapon against his 7-year-old stepchild on his bare arm and back, using a studded belt, hard enough to leave red welts, bruising, and one puncture wound. The accused had a limited criminal record including assault, and he pled guilty to the offence. The conditional discharge, which was imposed at the Provincial Court as it then was, was replaced with 12 months probation by Justice Yamauchi in order to give more emphasis to denunciation and deterrence. Justice Yamauchi also expressed that this was not an exceptional case where a conditional discharge would be appropriate. (

b) In R v TDT , 2017 ABPC 119 , a father who was angry with his child for not completing chores, dragged her from her bed by her foot. He then restrained her and hit her in the face with enough force to break her front tooth. The Court considered that this was an instance of impulsive, emotion-fueled discipline. It also considered that the offender violated the trust relationship he had in relation to the child, and that it was an expressly violent offence. The offender pled guilty, demonstrated remorse, and voluntarily pursued rehabilitation courses.

A conditional discharge was not appropriate, and the Court imposed a 12-month conditional sentence order. [ 61 ] Neither of these cases recently supplied by the Crown concerned Indigenous offenders, and therefore no Gladue factors were present. Additionally, both of these cases involve a markedly higher level of violence than in Ms. Marr’s case.

While I understand the multiple instances of assault compounded over time, the instances of single slaps and hits imposed on the children in the case at bar do not rise to the level of bruising, welts, a puncture wound, or broken tooth. [ 62 ] The Defence provided the following cases in support of its proposed sentence, being a discharge (absolute or conditional): (

a) R v Poucette , 2021 ABPC 192 : A 60 year old Nakota man physically assaulted his stepchildren while disciplining them over the course of 6 years. The children who were 9 and 11 years old when it started, suffered emotional and psychological damage including trust anger issues, fear of being alone, and difficulty sleeping. He pled guilty to assault and received a 30-month conditional discharge. The Court considered his Gladue report, including his forced attendance at residential school and physical abuse he suffered at the hands of his parents. It imposed the conditional sentence in pursuit of the legislative intent of

section 718.2 (

e) and the larger goal of restorative justice. (

b) R v Caines , 2021 ABPC 335 : The accused pled guilty to assault causing bodily harm. He assaulted his girlfriend after breaking down a bathroom door to get to her. He beat her face and smashed her head into the fixtures of the bathroom. He then took her to a bedroom and punched her repeatedly, and said he was going to kill her. She sustained extensive bruising on her face and body. The accused had no prior criminal record and received a conditional discharge of 12 months. (

c) R v Sheppard , 2020 ABPC 263 : While restrained by the complainant, the accused reached up and tore his lip with her nails requiring 25 stitches. The assault was found to be impulsive and in the context of domestic violence. She was convicted of assault and received a 12-month conditional discharge. (

d) R v Sinclair , 2016 ABPC 209 : The accused was convicted of assault with a weapon after he head-butted the complainant and hit him in the face with a beer bottle. The complainant suffered a broken nose and orbital bone. The sentence was an 18-month conditional discharge. [ 63 ] Poucette has very similar facts to the case at bar, being an Indigenous offender whose offending behaviour stems from colonization and the effects of residential schools, and who used corporal punishment in the pursuit of disciplining his two stepchildren.

However, the long, 6-year time period of abuse of the children in that case is a distinguishing factor. V. Analysis A. Proportionality: Gravity and Moral Culpability [ 64 ] In Nickel , the Court of Appeal stated that the proportionality assessment has two required components: gravity of the offence, and the moral culpability of the offender. 1. Gravity [ 65 ] Ms. Marr’s assaultive behavior did not result in physical harm and was, by comparison to the precedent cases provided by the Crown, in my view in the de minimis range or just above the de minimus range.

[66] The Crown is right to point out that the presence or absence of a long-term injury is not relevant to the gravity of the offence.The absence of significant injury in RGB and Nickel are due to chance in the face of extreme risk. Although there was a high risk that thevictims in those cases would experience serious permanent injuries, they mostly recovered. These cases, however, are distinguishablefrom the case at bar, where the amount of force used by Ms.

Marr against the children was not at the level that it would have causedpermanent injury. [67] With respect to the Crown’s position that H and M’s lack of physical injuries does not diminish the gravity of Ms. Marr’sactions, I disagree. The gravity of the comparator cases provided by the Crown is so dramatically higher than this case that I mustdistinguish them on that basis. 2. Moral Culpability [68] Ms. Marr’s moral culpability is related to her intention to cause the injuries sustained by M and H.

Intention to apply forcewithout the consent of the victims is a requisite element of the offences as found by the jury. [69] Ms. Marr’s Gladue factors are relevant to this element. In the circumstances of this case, involving the history of abuse thatMs. Marr suffered herself, and abuse being a learned and ingrained practice, her intention is not characterizable as planned or impulsive:Poucette at para 23. [70] Giving due weight to the Gladue report, I find that Ms. Marr’s moral culpability is lessened. B.

MacFarlane Analysis [71] In the face of the possibility of a discharge, the relevant questions that must be considered are: (1) whether the primaryobjectives of denunciation and general deterrence require in this case a jail term, either actual or in the community; and (2) whether Ms.Marr is eligible for a discharge. 1. Do the primary objectives of denunciation and general deterrence require in this case a jailterm, either actual or in the community? [72] I find that the offences in this case were corporal punishment as a disciplinary measure.

There was no evidence before the jurythat there were any lasting marks or injury. I find that the magnitude of harm in this case to M and H is at the low end of the scale. Ms.Marr’s motivation was a desire to discipline the children, not enjoyment, anger, or curiosity, and she was not engaged in a pattern ofsystemic escalating abuse. [73] As discussed, Ms. Marr’s offending behavior stems from the impact of colonization and residential schools on herself and herfamily.

Section 718.2(

e) requires that I consider all other alternatives to incarceration, especially in the context of a female, Indigenousoffender. [74] Recognizing the primacy of denunciation and deterrence given the offences, I find that these objectives can be met withoutincarceration. 2. Is Ms. Marr eligible for a discharge? [75] R v MacFarlane, 1976 ALTASCAD 6, a case concerning possession of stolen property, continues to be the binding authoritywith respect to conditional discharge.

MacFarlane provides at paras 11 and 12 that the Court must consider whether a discharge is (1) inthe best interest of the accused, and (2) not contrary to the public interest. [76] Incarceration is almost never in the best interests of the accused: MacFarlane at para 11. [77] The fear of acquisition of a criminal record is a deterring factor in and of itself: MacFarlane at para 13; and R v Meneses, (ON CA), 1974 CarswellOnt 1329, 25 CCC (2d) 115 (ONCA) at paras 10-12. I believe that the risk to Ms.

Marr ofthe possibility of acquiring a criminal record after arrest, the fact that she was compelled to hire counsel and appear in court, and thenotoriety that comes with court proceedings, that deterrence may have been fulfilled. Accordingly, a discharge would not be contrary tothe public interest. [78] The six additional factors provided by MacFarlane at paras 15 to 20, and are as follows: (1) the nature and gravity of the offence; (2) the prevalence of the offence; (3) whether Ms.

Marr stood to make personal gain at the expense of others; (4) whether the crime was a property offence; (5) whether the crime was a matter of impulse or planning; and (6) if the offence should be a matter of public record. [79] First, the nature and gravity of the offence have been discussed with respect to the proportionality analysis. I find that thegravity of the offence is on the low end of the scale, and the nature of the offence in my view is, in comparison to the cases relied on by

the Crown, de minimus assaultive behavior in the context of discipline. [ 80 ] Second, child abuse is a prevalent offence, which weighs against a discharge. However, as provided in Sheppard at para 67 , the “prevalence of a crime” factor is not as significant today as it was when MacFarlane was decided, due to significant Criminal Code amendments regarding sentencing principles. This has been echoed by Justice Wilson and Justice Park in, respectively, R v Adams , 2009 ABQB 160 at para 48 and R v Bougerois , 2012 ABQB 255 at para 48 .

I recognize that this factor weighs against a discharge, but I give it less weight than the other factors. [ 81 ] Third, Ms. Marr did not stand to make any personal gain at the expense of others. This is not a factor in this case. [ 82 ] Fourth, this is not a property offence. Accordingly, this does not factor in this case. [ 83 ] Regarding the fifth factor, as in Poucette , Ms. Marr’s parenting style was a learned approach, and ingrained. It is therefore not amenable to characterization as either impulsive or planned. This is evidenced by her Gladue report.

This is a neutral factor. [ 84 ] Finally, sixth, in asking whether this should be a matter of the public record, the question is whether the public should benefit from the ability to be aware that this person has committed this offence: MacFarlane at para 20 . [ 85 ] In respect of whether the public may benefit from the knowledge that Ms. Marr has been convicted of these offences, I find that it would not. In my view, it would be contrary to s.718(

e) of the Code . In this case, the people that should know are Ms. Marr’s family and community, and they already have knowledge. I believe that a public record will only serve to further stigmatize Ms. Marr, Indigenous women, and Indigenous families generally. [ 86 ] The children have now been removed from Ms. Marr’s care and the care of their family altogether. There is no risk that Ms. Marr will reoffend, and as her Gladue report healing plan details, she has committed to pursuing counselling for her unresolved trauma which she understands to be the root cause of her offending behaviour.

The principle of deterrence, general or specific, does not require this matter to be of public record. C. Gladue and Ipeelee [ 87 ] Before I conclude, I want to speak to my obligation to take judicial notice of “ such matters as the history of colonialism, displacement, and residential schools”: Ipeelee at para 60 .

Importantly, I have also taken judicial notice of the role that overincarceration plays in the further marginalization and traumatization of Indigenous communities, particularly of Indigenous youth. [ 88 ] Respecting residential schools specifically, this judicial notice includes an understanding of physical abuse as something that was imposed onto Indigenous communities by the colonial state: as Indigenous children were stolen from communities that love them, they were taught that extensive, violent corporeal punishment is normal and encouraged, and then sent back to their communities with that belief and traumatic experience. [ 89 ] This offender’s use of corporeal punishment is directly connected to her parents’ and ancestors’ experiences of colonization at the hands of the state. [ 90 ] This is not to say that individuals should not be responsible for their choices, but that with respect to my obligation to consider “such matters as the history of colonialism, displacement, and residential schools”, I must recognize that the responsibility for these instances of child abuse also lies at the feet of the state. [ 91 ] I therefore find it inappropriate and contrary to the purpose of s.718.2(e), Gladue and Ipeelee to hand down a harsh, disproportionate penalty which only Ms.

Marr will face. The gravity and context of this offence is inconsistent to the sentence sought by the Crown. To impose such a sentence would be to use the heavy hand of the state, once again, against an Indigenous woman whose circumstances and in the facts of this case do not require such a response. [ 92 ] Furthermore, I recognize that the overincarceration of Indigenous people by the state is a result of colonialism, displacement, and residential schools: Ipeelee at para 60 . Incarcerating Ms. Marr would only expose her to further trauma, perpetuate colonialism and undermine the legislative intent of s. 718.2(

e) of the Code . [ 93 ] With recognition to the primordial principles of denunciation and deterrence, I accept that an absolute discharge is not appropriate, and that conditions should be imposed. However, with respect to the other principles, I find it would be directly contrary to the principle of rehabilitation, reparation for harm, and promotion of responsibility to incarcerate Ms. Marr. [ 94 ] Ms. Marr please stand. VI.

Conclusion [ 95 ] Given the foregoing analysis, with particular attention to your Gladue factors, I find that a 12-month conditional discharge is an appropriate sentence. [ 96 ] I accept all of the recommendations of the Gladue writer and order that the healing plan detailed on pages 12 to 16 of the Gladue Report occur. [ 97 ] In addition, to support the objectives of making amends to individuals and the community, I encourage Ms. Marr’s participation in a healing circle if sought by any of the four children who were in her care. I encourage this because I recognize Ms.

Marr’s desire to build her connection with her Indigenous traditions. I also encourage this in the interest of possible family reunification,

to support all members of this family to connect to their heritage, culture, and traditions. This element of my sentence imposed is to further help give effect to the sentencing principles of rehabilitation, reparation, and responsibility. [ 98 ] The conditions of this discharge are that Ms. Marr shall: (

a) keep the peace and be of good behavior; (

b) attend court when required to do so; (

c) report to the Court within two (2) business days of this decision; (

d) not have any contact with H or M unless H or M wish to contact her for the purposes of a healing circle process or other Indigenous practice in the pursuit of family healing or reunification; (

e) not attend the residence(

s) of H or M unless they wish to invite Ms. Marr to their home(

s) for the purposes of a healing circle process or other Indigenous practice in the pursuit of family healing or reunification; (

f) attend for assessment, counselling, and treatment in accordance with pages 12 to 16 of the Gladue report and/or as directed by your supervisor; and (

g) provide your supervisor with proof in writing that you have followed through and completed any treatment or counselling you have been directed to take. Heard on the 10 th day of October and the 10 th day of November 2023. Dated at the City of Calgary, Alberta this 10 th day of November 2023. J.C. Price J.C.K.B.A. Appearances: Kirsti Binns for the Crown Dale Fedorchuk K.C. for the Accused