R v ALO, 2024 ABCJ 30

In the Alberta Court of Justice Citation: R v ALO, 2024 ABCJ 30 Date: 20240206 Docket: 221005853P1 Registry: Edmonton Between: His Majesty the King Crown - and - ALO Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify SS must not be published, broadcast, or transmitted in any way.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. Decision of the Honourable Justice M.C. Doyle INTRODUCTION [ 1 ] On October 30, 2023, I convicted ALO of the following offence: COUNT 1: BETWEEN THE 22ND DAY OF OCTOBER, 2021, AND THE 3RD DAY OF JULY, 2022. BOTH DATES INCLUSIVE, AT OR NEAR EDMONTON, ALBERTA, DID IN COMMITTING AN ASSAULT, CAUSE BODILY HARM TO SS, CONTRARY TO

SECTION 267(

B) OF THE CRIMINAL COURT OF CANADA. [ 2 ] The maximum penalty for this offence is ten years in custody. In this case, the Crown has proceeded by

summary conviction, and thus the maximum penalty is two years in custody. [ 3 ] In my judgment, I was satisfied beyond a reasonable doubt that the victim, SS, had been assaulted on two separate occasions

during the timeframe articulated in the Information. First, I found that ALO threw a bowl of ice water in the victim’s face arousing herfrom sleep when she failed to wake to look after her siblings. I found that this action constituted an assault. Second, I found that ALOpunched the victim in the back, causing her bodily harm, specifically bruising to her back that caused her pain sufficient to interfere withher sleep. I found further that ALO pulled the victim to the ground and hit her several times with her hands.

Later that same day, I foundthat ALO charged at the victim while she was putting on her shoes, and hit her several times, leaving bruises and red marks. [4] This was a prosecution which involved the application of the principles enunciated in R v W(D), (SCC),[1991] 1 SCR 742. While I articulated concerns about the reliability of certain aspects of the victim’s evidence and could not be satisfiedbeyond a reasonable doubt about discrete features of her evidence, on the whole, I believed the victim. I found her to be a crediblewitness.

I disbelieved material portions of ALO’s evidence, and I disbelieved material portions of her partner’s evidence, and specificallyfound that both were untruthful on important and material aspects in their evidence. Nothing in the defence case raised a doubt in mymind that ALO assaulted SS as described and caused her bodily harm. [5] ALO is the mother of SS. At the time that this violence was perpetrated upon SS, she was 15 years old. She provided avictim impact statement to the Court. I find that these assaults had a profound impact on SS, even though she suffered no long-termphysical injuries.

After the last assault, which was termed the “junk drawer day” at trial, SS never returned to her home. She eventuallycame under the care of Children’s Services, after weeks of relying on the charitable acts of friends. She has experienced thoughts ofsuicide. She is estranged from her mother, ALO, her stepfather, and her younger siblings. This estrangement is because of ALO’scriminal conduct. [6] This leaves the question of a fit sentence. [7]

Section 718.1 of the Criminal Code of Canada, RSC 1985 c C-46 [Criminal Code or Code] articulates that the fundamentalprinciple of sentence is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [8] This crime has statutorily aggravating factors as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, [9] In evaluating the gravity of this offence, I find that it is high.

While there were no lasting physical injuries occasioned to thevictim during the offence, I find that the psychological harm to the victim was profound and serious. ALO’s criminal conduct issomething that will take considerable time for the victim to recover from. I also find that ALO’s moral blameworthiness is high. ALOpresented as an articulate and intelligent woman. There is no reason to surmise that she may not have appreciated the impact of herbehaviour.

The assaults that I found were proven on the evidence were of varying levels of seriousness, but all were designed to assert ameasure of control that was well beyond the bounds of parental oversight, and some arose in the context of an environment of derisionand psychological abuse. I find that ALO knew what she was doing and proceeded anyway. [10] At sentencing, the Crown sought a conditional sentence order of four months pursuant to s 742.1; followed by a probationorder of 12 months.

Through her counsel, ALO argued that a fit sentence was a suspended sentence for nine months, on the same termsproposed by the Crown. Neither counsel provided any specific jurisprudence in support of their position. When questioned, the Crownsuggested an application of the principles enunciated in R v MJS, 2006 ABCA 176, which applied the analysis in the decision of R vEvans (1996), (AB CJ), 182 AR 21, 1996 CarswellAlta 208 (Prov Ct) [Evans].

In R v Nickel, 2012 ABCA 158[Nickel], the guiding sentencing decision in this province on child abuse, the Court of Appeal said the following at para 21 about theEvans model: In imposing the sentences, it appears the sentencing judge was led astray by Evans and the reconsideration cases. For the reasons thatfollow, we find the reasoning in Evans to be flawed.

Accordingly, the reconsideration cases are not to be read as giving authorityto Evans, or as having any residual precedential value themselves. [11] Further, at paras 27-28, the majority of the Court found as follows: Further, Evans does not account for the caregiver’s degree of responsibility in any meaningful or logical way. Additionally, the criteriadirectly ignore the gravity of the offence, both as to its characteristics and consequences. In this way, it limits the degree of responsibilityof the offender and ignores the proportionality principle.

For these reasons, we find the categorization in Evans to be unsound and we reject it. [12] Neither counsel referred to Nickel or R v MAC, 2023 ABCA 234 [MAC], nor did either counsel address the impact of thedecision in R v Friesen, 2020 SCC 9 [Friesen] on the sentencing analysis that should be employed in this case. Accordingly, ascontemplated by R v Nahanee, 2022 SCC 37, I notified counsel that I was concerned that the Crown’s proposed sentence may be too

lenient, and provided the parties with the opportunity to make further submissions that consider the binding jurisprudence that are relevant to this sentencing hearing. Those submissions have been received. Mr. McMullan provided a copy of R v Marr , 2023 ABKB 648 , and the Crown materials will be attached to the file. Both counsel affirmed their earlier sentencing position. ANALYSIS [ 13 ] The Nickel decision represented a substantial shift in sentencing for child assault cases. Nickel shifted the focus of the assessment of an offender’s moral culpability when evaluating the proportionality principle.

The Court of Appeal, at para 34, identified the most important consideration to be the nature of the harm experienced by the child, and the extent to which the harm was foreseeable. I have already concluded that there was bodily harm proven, as defined in s 2 of the Code , and that there was significant psychological harm caused to the victim. I find that the harm caused, physical and psychological, was foreseeable, and I find that ALO was aware of the risk of harm occasioned by her actions.

Some of the additional aggravating aspects identified in Nickel are not present in this case, specifically, no weapon was used, there was no evidence of confinement, and there were not lasting injuries. None of the assaults endangered the victim’s life. The victim did not have the same level of vulnerability as a younger child might. On the other hand, more than one assault was proven on the evidence, and ALO’s violent conduct resulted in the complete destruction of the parent- child relationship and the relationship of the victim with her siblings.

ALO’s actions left the victim entirely alone, homeless, and without support. [ 14 ] In the decision of MAC , at paras 48-51 , the Court of Appeal said the following about the application of the Supreme Court’s decision in Friesen to child assault cases: We must also consider this sentence in light of the Supreme Court’s judgment in Friesen , the leading decision on sentencing for sexual offences against children. The Supreme Court signalled that courts had not treated offences against children sufficiently seriously.

In directing that sentences for sexual assault of children must increase, the court made two key findings:

(1) Parliament has introduced sentencing initiatives which demonstrate that these offences must be taken more seriously; and (2) contemporary society has a greater understanding of both the wrongfulness and harm caused by these offences. While Parliament has not increased the sentences for common assault and assault with a weapon or by choking, we continue to develop a greater understanding of the harm caused to children, families and society by offences committed against children.

Even in non-sexual assault cases, acknowledging this harm reminds sentencing judges to appropriately assess the gravity of any offence against children when determining a proportionate sentence : see R v Al Aazawi , 2022 ABCA 361 at para 92 , leave to appeal to SCC requested, and R v Sinclair, 2022 MBCA 65 . [Emphasis added] A second way Friesen can impact the analysis is to remind judges that when reviewing sentencing decisions that predate Friesen , they should consider whether those decisions adequately account for the harm to the children who are victims.

This does not mean that all pre- Friesen sentencing decisions should automatically be considered too low or irrelevant, rather that the sentencing court must carefully consider those precedents in light of Friesen and whether those sentences appropriately reflect the harm to the children. [Emphasis added] While many of the pre- Friesen decisions reviewed above appropriately consider the harm to the child and reflect fit sentences, not all of them, including JAB from Alberta, were considered by the sentencing judge. [ 15 ] In Friesen , the Supreme Court endorsed a renewed recognition to the harm caused by violence committed upon children, and the duty of a sentencing Court to adhere to the community’s commitment to a society where children are free from violence.

The Court recognized the serious emotional and psychological harm that results from crimes committed against children and accepts that this harm may be more “pervasive and permanent than physical harm”. The Supreme Court, at para 60, also acknowledged the harm to families and the trauma caused to the victim when the violence is committed by a family member. At para 64, the Court noted the harm caused to the community by child assault. The harm and wrongfulness of child assault must be assessed by a sentencing court when conducting their proportionality analysis (para 75).

At para 105, the Supreme Court said the following: Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law ( R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 102 ). It reflects the fact that Canadian criminal law is a “system of values”.

A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians” ( M. (C.A.), at para. 81). The protection of children is one of the most basic values of Canadian society ( L. (J.-J.), at p. 250; Rayo , at para. 104).

As L’Heureux-Dubé J. reasoned in L.F.W ., “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms” (para. 31, quoting L.F.W. (C.A.) , at para. 117, per Cameron J.A.). CIRCUMSTANCES OF THE OFFENDER [ 16 ] ALO has no prior criminal record. Three children remain in her care. This crime was committed in her home.

The Crown asserts that she poses no risk to the community and thus a conditional sentence order is a fit sentence. [ 17 ] The absence of a criminal record is relevant to an assessment of a fit sentence. Recently in R v Bertrand Marchand , 2023 SCC 26 [ Betrand Marchand ] at para 127 , the Supreme Court included the absence of a prior criminal record as a mitigating factor along with a guilty plea and remorse. This issue of whether the lack of criminal record was a mitigating factor in sentence was not the subject of the appeal in Bertrand Marchand .

That case involved the consideration of the constitutional validity of mandatory minimum sentences for child luring. The comments in para 127 were advanced in the context of a representative or hypothetical offender, relevant to the s 12 analysis. Para 127 certainly cannot be characterized as the ratio of this decision. Neither does the treatment of the absence of a

criminal record as a mitigating factor sustain scrutiny. A mitigating factor is a factor that reduces a sentence that might otherwise be fit.An aggravating factor adds to a sentence that might otherwise be fit. If the absence of a criminal record is mitigating and its presence isaggravating, there would be no standard to deviate from. The absence of a criminal record is relevant, the fact may have specificrelevance to the principles of specific deterrence and rehabilitation.

I accept that ALO has no prior criminal history and is apparently ofprevious good character. [18] In the decision of R v Al Aazawi, 2022 ABCA 361 [Al Aazawi], at paras 70-72, the Court of Appeal addressed factors that areoften advanced as mitigating in a case where deterrence and denunciation are the primary sentencing considerations as follows: We agree with the Crown’s submission that the sentencing judge erred in considering Mr. Al Aazawi’s compliance with bail conditionsas mitigating. Compliance with those conditions was expected: R v Gandour, 2018 ABCA 238 at para 43; R v Sarrasin, 2021 ABCA 253 at para 30.

Further, we do not accept that Mr. Al Aazawi’s status as “a productive member of society, working fulltime” (Reasons for Sentence atpara 51) should have any meaningful mitigating effect in the circumstances of this case. Courts respond to a good work record because itdemonstrates responsibility and conformity to community norms. It signals more promising rehabilitative prospects: Allan Manson etal, Sentencing and Penal Policy in Canada: Cases, Materials and Commentary, 3d ed (Toronto: Emond Montgomery Publications,2016) at 103.

However, mechanically weighing this sort of “good character” evidence as mitigating, without critically assessing its placein the circumstances of the offence, can undermine the denunciative and deterrent functions of criminal sentences.

As stated by Antonio J(as she then was) in R v Shrivastava, 2019 ABQB 663 at paras 88 and 90-91: In R v M(CA), (SCC), [1996] 1 SCR 500, [1996] SCJ No 28, at paragraph 81, the Supreme Court defined the role ofdenunciation: [A] sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished forencroaching on our society’s basic code of values as enshrined within our substantive criminal law. …“[S]ociety, through the courts,must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.[citation omitted] Denunciation is meant to produce “a moral or educative effect” by “emphasizing the community’s disapproval of

an act and branding itas criminal”: Ruby et al at 7. In short, denunciation is intended to communicate society’s values: Gilles Renaud, The Sentencing Code ofCanada: Principles & Objectives (Markham: LexisNexis Canada Inc, 2009) at 13-17. … Good character mitigation may “dilute the deterrent effect of punishment” by “convey[ing] the message that an offender will get a break[or] will be treated leniently, as long as the offender has a previously clean record”: Benjamin B Sendor, “The Relevance of Conduct andCharacter to Guilt and Punishment” (1996) 10:1 Notre Dame JL Ethics & Pub Pol’y 99 at 128.

Worse, if not handled with scrupulouscare, it stands to convey the message that an offender will be treated leniently if he is of high social or economic standing or is otherwisea member of a privileged group. When denunciation and deterrence are paramount objectives in sentencing an offence, as is true of sexual assault, “they should not beimproperly discounted in the quest for individualized sentences”: R v Christie, 2004 ABCA 287 at para 37; see also: Arcand at paras274-276, Glessman at para 8.

In particular, courts must ensure that denunciative and deterrent messages are heard by the audience ofpotential offenders: Field at paras 22-23. Shrivastava involved a sexual assault offence which Antonio J observed “is committed by offenders across the spectrum of ‘character’”:at para 92. The same can be said of the offence of abduction. Offenders in these cases often have good work and communitybackgrounds.

Care must be taken to ensure the paramount objectives of denunciation and deterrence are not undercut by consideration offactors that provide little assistance in contextualizing the offence and understanding the criminal behaviour as anything but a choicefreely made: Shrivastava at para 85. Mr. Al Aazawi’s employment gave him the means to take ZA to Iraq. His demonstration ofresponsibility is what allowed him to gain and then to abuse Ms. Mahdi’s trust: compare R v Fulcher, 2007 ABCA 381 at para 35 wherethis point was made in the context of an offence of fraud.

We also note that reoffending is not a significant concern in Mr. Al Aazawi’scircumstances.

Consequently, rehabilitation aimed at re-establishing him as a law-abiding citizen is not a pressing sentencing objective inthis case. [19] From her evidence, I find that ALO takes no responsibility for her conduct and appears to blame the victim for her struggles.In my view, the comments of the Court of Appeal in Al Aazawi continue to have binding effect even in light of the obiter comment in theone paragraph of Bertrand Marchand. [20] Having carefully considered the gravity of this offence, and ALO’s moral blameworthiness, I conclude that a custodialsentence is necessary to achieve the primary sentencing principles of general deterrence and denunciation.

In my view, a suspendedsentence does not properly achieve the fundamental purposes of sentencing outlined in s 718 of the Criminal Code and does not properlyconsider the statutorily aggravating factors present in this case. Clearly the available range of sentence is under two years, given theCrown’s

summary conviction election. There is no minimum sentence for this offence. Thus, a conditional sentence order is statutorilyavailable as a sentencing option. Conditional Sentence Orders [21] The guiding case from the Supreme Court on the

interpretation and application of conditional sentence orders is R v Proulx,2000 SCC 5. At para 100, the Court discussed competing sentencing objectives as follows:

…To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(

d) and ( e ), which militates in favour of alternatives to incarceration where appropriate in the circumstances. [ 22 ] The Court provides further guidance at paras 113-114: In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code ). This list is not exhaustive.

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. [Emphasis added] [ 23 ] In this case, the primary sentencing objectives are general deterrence and denunciation.

There has in this case been no acknowledgement of wrongdoing, no rehabilitative plan has been proposed, and ALO continues to blame the victim for her circumstances. Other than sparing ALO from a custodial setting, it is difficult to forecast what objectives are to be achieved by a conditional sentence order. The punitive objectives of denunciation and deterrence are not only pressing, they are the primary sentencing objectives that apply to this case. It is true that a properly crafted conditional sentence order can achieve the principles of general deterrence and denunciation.

The conditional sentence order proposed by the Crown in this case is relatively short – four months. The punitive conditions proposed are apparently two months of house arrest with 12 exceptions, including a general exception with supervisor consent. This is followed by two months of curfew with exceptions, including a general exception with supervisor consent. It is difficult to characterize this conditional sentence order as punitive.

Treatment conditions are proposed, apparently to achieve a rehabilitative purpose, with no apparent acknowledgment by ALO that treatment would be useful or necessary. [ 24 ] Sentencing is an individualized process, in addition to the cases already cited, I have considered sentences imposed in similar cases, to ensure that the principle of parity is not ignored. Every case has distinguishing features. In some cases, there are guilty pleas, a significant mitigating factor demonstrative of remorse, where the child is spared the trauma of testimony.

In some cases, the facts are aggravated by the seriousness of the assault or the extreme vulnerability of the victim. I have considered the following cases, noting that cases decided post- Friesen are of more assistance generally, given that those cases have evaluated the perspective change enunciated in Friesen . Several of the cases cited here reference a breadth of sentencing authorities, which I have considered even if not cited specifically herein: R v HDH , 2021 ABPC 306 A 36-year-old man pled guilty for assaulting his 11-year-old daughter over a math quiz, using his hands, a hairbrush, and a wooden stick.

He caused bruising and sleep difficulties. The accused, a nail technician with three other kids, had no criminal record. The judge imposed a 6-month conditional sentence order due to low risk of reoffending. This case involved a single incident of violence, and a guilty plea. R v RAC , 2022 ABPC 63 The accused, a parent of 12 children, was convicted of six counts of common assault for using excessive force, including corporal punishment with "the Rod," on his children The court emphasized the destructive impact on the family and community.

The accused received a 14.5-month imprisonment term for the assaults, followed by 18 months of probation, with deterrence and denunciation as primary sentencing objectives. R v Chisholm , 2023 ABPC 55 The father of a 15-day-old baby girl, was convicted of aggravated assault for breaking her femur bone. He had no prior criminal record and the baby made a full recovery. The offender expressed remorse. The Court sentenced the offender to one-year incarceration. R v MEP , 2021 ABPC 200 The 36-year-old accused pleaded guilty to assaulting his 10 year-old son with a pellet gun, causing bodily harm.

Mitigating factors, included a guilty plea and positive life changes. Aggravating factors included a pattern of violence over a year, and a violent criminal record. The accused received 10 months in prison, followed by 24 months of probation. R v Marr , 2023 ABKB 648 The offender was convicted of assaulting her niece and nephew between 2018 and 2021, when they were in the care of her mother. These

assaults included the use of a hockey stick and computer stick. There were no injuries alleged, physical or psychological. The offender was 47 years old with extensive Gladue factors and no prior criminal record. The Court conducted an extensive review of similar cases. A 12-month conditional discharge was imposed. [ 25 ] I am of the view that a custodial sentence is necessary in this case to achieve the primary sentencing principles of general deterrence and denunciation. I reject the submission that a conditional sentence order can be drafted in such a way as to achieve this primary sentencing objective.

I have considered the Crown’s submissions to the effect that ALO does not pose a risk to the community. It is worth considering the community that is referenced. This crime was committed in the victim’s home. Three children are still resident at that home. There is no reason to conclude that consideration of the potentially endangered community must be the community at large. When the victim is a bank, it does not make sense to have a bank robber serve their sentence in a bank 24 hours a day.

Without a rehabilitative plan, would the safety of the children in ALO’s household be endangered were she to serve her sentence confined to the home with her children? I conclude that their safety would be endangered. Further, I conclude that the service of the sentence by way of a conditional sentence order would not be consistent with the fundamental purpose and principles of sentencing in ss 718 to 718.2 of the Criminal Code .

Having considered the aggravating factors present in this case, the gravity of the offence, and the moral blameworthiness of ALO, I am of the view that a fit and proper sentence is six months in custody. Following her release from custody, ALO will be bound by a probation order for 18 months. The terms of the probation order are as follows: (

a) She will keep the peace and be of good behaviour. (

b) She will appear before the Court when required. (

c) She will report to a Probation Officer within three working days of her release and will report thereafter how and when directed. (

d) She will remain within the province of Alberta unless written permission to leave has been obtained in advance from the Court or her Probation Officer. (

e) She will notify the Court or her Probation Officer in advance of any change of her name or address, and promptly notify her Supervisor of any change of her employment or occupation. (

f) She will have no contact, directly or indirectly, with SS. (

g) She will not attend within 200 meters of any place known to be the residence, workplace, school or church of SS. (

h) She will attend for assessment, counselling or treatment as directed by her Probation Officer, and specifically, will attend to any psychiatric or psychological counselling she is directed to take and will attend to any parenting sessions that she is directed to attend. (

i) She will sign any release or waiver that her Supervisor needs to make sure that she is complying with treatment conditions. [ 26 ] Pursuant to s 487.051 of the Criminal Code , prior to ALO’s release from custody, she will provide a DNA sample for storage on the DNA data bank. The victim fine surcharge is waived, as she testified that she is not employed outside of the home. Heard on the 16 th day of January, 2024. Dated at the City of Edmonton, Alberta this 6 th day of February, 2024. M.C. Doyle A Justice of the Alberta Court of Justice Appearances: G. Mitchell for the Crown B. McMullan for the Accused