Her Majesty the Queen - v. -, 2019 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 11 Date: January 29, 2019 Information: 90172313 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Precious Cheyenne Martell Appearing: Andrew Clements For the Crown Roseanne Newman, Q.C. For the Accused SENTENCING DECISION M. MARTINEZ , J Background and Facts [ 1 ] The defendant, Precious Martell, pled guilty to one count of assaulting her 11-year-old son.

The charge of common assault arose from an incident which occurred on March 22, 2018. [ 2 ] According to the complainant, his mother had come home drunk and, for an unknown reason, immediately became angry with him. His grandmother, who at that time was living with the defendant and her four children, told him to go downstairs.

[3] A few moments later, his mother, still in a foul mood, followed him downstairs. When she found her son in, or near, thebathroom, she grabbed him by the throat with both hands and threw him to the floor. Then she went into the bathroom. [4] Hearing her grandson cry out, the defendant’s mother went downstairs to investigate. She shooed her grandson back upstairsand then she called the R.C.M.P. [5] I heard sentencing submissions on January 11, 2019. This is my decision on the appropriate sentence.

The Sentencing Positions [6] The Crown submits that the defendant’s unprovoked assault of her son deserves a custodial sentence of six to nine months. [7] The defendant submits that her sentence should be rehabilitative rather than punitive. For this reason, defence counsel askedme to suspend the passing of sentence and to impose a twelve month period of probation. The Overarching Sentencing Principles [8] The objectives of criminal sentences are described in s. 718 of the Criminal Code.

Those objectives include denouncing the unlawful conduct, deterring the offender and other persons from committing similar offences,assisting to rehabilitate the offender, providing reparations for the harm done by the offender’s conduct, promoting an offender’s senseof responsibility for the harm done by their unlawful conduct, and when necessary, imprisoning the offender in order to separate themfrom society. [9] The primary considerations in child abuse cases are the sentencing objectives of denunciation and deterrence: CriminalCode, s. 718.01.

Having said that, when considering the appropriate sentence in any given case, sentencing judges must be guided by theprinciples enumerated in ss. 718.1 and 718.2 of the Criminal Code, which state that the sentencing judge’s role is to determine a sentencethat is appropriate to the circumstances of the offence, to the circumstances of the offender, to the victims, and to the community. [10] Ultimately, what I must do is to impose a sentence that is proportionate to the gravity of the offence, the moralblameworthiness of the defendant’s conduct, her personal circumstances, and the effect that her conduct had on her son: R v Ipeelee,2012 SCC 13 at para 37, [2012] 1 SCR 433 [Ipeelee]; R v Lacasse, 2015 SCC 64 at para 53, [2015] 3 SCR 1089. [11] Because the defendant is of Indigenous ancestry, I must pay particular attention to the circumstances of her upbringing and ofher ancestry.

The reason for this is that, unlike other Canadians, the historical mistreatment and neglect suffered by Canada’s Indigenouspeople may affect and inform an Indigenous offender’s personal circumstances: Criminal Code, s. 718.2(e); R v Gladue, (SCC), [1999] 1 SCR 688 at paras 36-37 and 67-68 [Gladue]. [12] In all cases involving an Indigenous offender, the sentencing judge must take judicial notice of, and consider, the systemic and background factors affecting Canada’s Indigenous people in general, as well as the systemicand background factors peculiar to the individual being sentenced: Gladue at para 69; Ipeelee at para. 60; R v Whitehead, 2016 SKCA165, 344 CCC (3d) 1 at para 69 [Whitehead]. [13] Where systemic and background factors have played a significant role in bringing an Indigenous offender before the court, the sentencing judge must consider whether these factors favour restorative or rehabilitative, ratherthan punitive, sentencing objectives: Gladue at para. 69.

However, a sentencing judge should not reflexively reduce an offender’ssentence simply because he or she happens to be of Indigenous descent: Gladue at para. 78; Ipeelee at paras 75 and 83; R v Chanalquay, 2015 SKCA 141,472 Sask R 110 at paras 36-37, and 52; Whitehead at paras 39 and 61.

Analysis [14] The mitigating factors in this case are that the defendant pled guilty – albeit not until the date of trial – saving her son theneed to testify against his mother, and that the defendant had never done anything like this to any of her children before. [15] There are several aggravating factors, not the least of which is that this was a drunken, unprovoked, assault of a child by hismother.

Further, as can be seen in the photograph of the complainant taken by the investigating officer, the assault was serious enough toleave what the officer described as bruises, but which appear to be faint red marks, and what may be a tiny scratch on his neck. [16] There is evidence that this incident scared and worried the complainant, but there is no evidence that he suffered any lastingphysical or psychological effects.

However, the Crown argued that it is common sense to assume that the child will suffer long termpsychological harm as a result of this assault by his mother. [17] While judges are expected to bring common sense to bear in their decisions, what the Crown asks me to do is to speculateabout future consequences for which there is no evidence, expert or otherwise. This is something a sentencing judge must never do. [18] The defendant’s criminal record also is a relevant consideration.

Her criminal record consists of two convictions for failing tocomply with an undertaking and one conviction for impaired driving, all of which were recorded on February 2, 2018. The Crown alsoreferred to an assault charge, and to another failure to comply charge, which do not appear on the defendant’s criminal record.

Thereason why these two offences do not appear on her record is because they were dealt with through the Adult Alternative Measuresprogram. [19] Arguably, the latter charges are relevant because they may demonstrate some propensity to violence on the part of thedefendant and may reinforce the impression that she does not respect conditions when she is at large in the community. [20] Without any information about an assault that was not serious enough to warrant prosecution to conviction, the relevance, orprobative value, of the latter charges is minute at best.

As such, I give them little weight in my decision. [21] Both the defendant and the Crown accept that child abuse cases often fall into one of two broad categories, first described bythe Supreme Court of Newfoundland and Labrador, Court of Appeal in R v Marks (1994), 91 CCC (3d) 421, [Marks]: [27] Physical child abuse frequently falls into two distinct types: (

i) The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injurieswill result and, (ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care,and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. [28] In the first situation, there is a high degree of culpability and the court will in most cases impose a severe sentence.

In the secondsituation, while punishment is warranted, a sentence, where such is warranted, will not ordinarily be a severe one and will usually befollowed by a period of probation, a condition of which would be that the abuser receive training and counselling to the end that furtheracts of abuse will be avoided. [22] The Crown submits that Ms. Martell’s assault of her son falls within the first category of offences described in Marks.

Thereason offered by the Crown is that the second category of offences is limited to cases of parental discipline gone awry, as opposed to an“unprovoked” assault on a child as occurred in this case.

[ 23 ] Defence counsel counters that this assault is a category two offence because the defendant is immature and unskilled in matters of child care, and it is apparent that she acted out of emotional upset or frustration – the cause of which is unknown. [ 24 ] Marks does not limit the second, and less serious, category of child abuse offences to those where a person caring for a child uses inappropriate physical force to discipline the child.

What matters are the offender’s maturity and skill in caring for children, and whether they acted out of emotional upset, frustration, or impatience, without fully appreciating that their actions could cause serious harm to the child. [ 25 ] In this case, the defendant’s dysfunctional and difficult childhood – which I describe in detail below – could not have prepared her to be a mature, skilled, parent. For this reason, I place the defendant’s offence squarely within the second category of offences described in Marks . [ 26 ] Ms. Martell is 31 years old.

She was born in Meadow Lake and is a member of the nearby Waterhen Lake First Nation. [ 27 ] The defendant grew up in poverty. For the first nine years of her life, she was raised more by her grandmother than by her mother. Tragically, as a child, she suffered physical and sexual abuse at the hands of some of her mother’s boyfriends. At about age nine, Ms. Martell entered the foster care system, which is where she stayed until she became an adult. [ 28 ] While in foster care, Ms.

Martell lived with several different families, in several different communities, and, at times, suffered physical abuse in the homes of her foster families. [ 29 ] Growing up in the foster care system separated the defendant from her family, both immediate and extended, and it separated her from her community, and from her culture. [ 30 ] In 2016, the defendant began attending post-secondary school, online, with the goal of eventually becoming a social worker. At some point in that same period, her common law spouse – who sometimes physically abused her – abandoned her and her four children.

As a result, she had to quit school and began a downward spiral into depression and alcohol abuse. [ 31 ] Ultimately, her abuse of alcohol lead to the offences reflected in her criminal record and to the offence for which I am sentencing her today. Sentencing Cases Submitted by Counsel [ 32 ] In its submissions, the Crown referred me to two cases: one from Alberta and one from Ontario. [ 33 ] The Alberta case is, R v Harris , 2011 ABCA 41 , which was a Crown appeal of suspended sentence of two years probation for an offender who whipped his nine year old daughter with a belt, leaving her with scabs and abrasions.

In addition, child welfare workers previously had counselled the offender not to use harsh physical punishment to discipline his child. On these facts, the Alberta Court of Appeal overturned the lower court’s sentence and imposed a nine month jail sentence. [ 34 ] The Ontario case is R v Q.Y. , 2017 ONCJ 180 . QY and her daughter, SY, are relative newcomers to Canada. In her early teen years, SY began lying and stealing.

Her mother usually disciplined SY by spanking her on her buttocks with the handle of a toilet plunger, but in March 2016, she beat her daughter on her back, arm, and buttocks, with a rolling pin and a broom handle. [ 35 ] QY did not have a criminal record. She had earned a university degree in Canada. As a permanent resident of Canada, she risked deportation. For these reasons, the learned justice accepted a joint submission for a four and one-half month jail sentence followed by 18 months probation.

[ 36 ] I did not find either of these cases helpful. In both cases the offending parent repeatedly used inappropriate physical violence to discipline their child, and, in both cases, the parental assaults caused serious injuries to the victim. [ 37 ] Defence counsel referred me to R v Berg , 2017 SKPC 11 [ Berg ] in order to give some context to the sentence I should impose in the case before me. In Berg , Judge Kovatch canvassed a number of child abuse sentencing cases.

In the majority of those cases, the sentences meted out by the court were short jail sentences, or short conditional sentence orders, followed by probation. Once again, the violence involved in those cases was greater than what Ms. Martell did to her son. [ 38 ] Of the cases cited by Judge Kovatch in Berg , R v J.B. , [2015] NJ No 312 (QL) (NL Prov Ct) [ JB ] bears the closest resemblance to the case before me. [ 39 ] The offender in JB was the 31 year old common law spouse of the victim’s mother. His spouse’s six year old daughter was misbehaving and not obeying her mother.

JB picked up the child with both hands by her upper arms and slammed her into a wall. He used enough force to damage and crack the drywall. [ 40 ] JB came before the court without a criminal record. He had a full-time job. The provincial child welfare agency became involved with the family after this incident. During this period, JB underwent counselling, he improved his parenting and coping skills, and his relationship with his spouse’s daughter improved to the point that the child welfare agency closed its file. [ 41 ] JB’s sentence was a conditional discharge consisting of twelve months of probation.

The Fit Sentence [ 42 ] The defendant’s extensive Gladue factors, as well as the following factors, favour a rehabilitative sentence focused on helping Ms.

Martell personally, and helping her to reconcile with her eldest child: • Her offence falls within the less serious category of child abuse offences described in Marks . • The offence was an isolated incident, as opposed to part of a pattern of physical abuse of her child. • The victim’s injuries were minor. • The victim did not suffer any long-lasting physical or psychological harm. • The defendant expressed deep remorse for what she did to her son. • The defendant attended alcohol addictions treatment during the summer of 2018 and has been attending AA meetings. • She completed an anger management course in November 2018. • She has been working with a family support worker and a Kids First worker, both of whom attended court to support her during the sentencing hearing. • As a result of this incident, the Ministry of Social Services removed all of the children from the defendant’s home and, although she has had supervised access to her three youngest children, she has not had any contact with her eldest child in almost one year.

[ 43 ] The fact that the defendant has a criminal record does not disqualify her from being granted a conditional discharge.

As JB demonstrates, a conditional discharge can be an appropriate disposition for an isolated incident of child abuse, where the child did not suffer serious injuries or lasting harm, where the offender has taken steps to deal with the underlying causes of their conduct, and when a discharge would be in the defendant’s best interests and not contrary to the public interest. [ 44 ] Not having a criminal record which includes an assault on a child is in the defendant’s best interests, especially if she manages to finish school and has an opportunity to be employed in the field of social work. [ 45 ] In my opinion the public interest will not be served by insisting that this isolated assault form part of the defendant’s criminal record.

In this particular case, the public interest would be served best by the Court supporting the defendant’s rehabilitation, and supporting reconciliation between her, the victim, and her other children. [ 46 ] If Ms.

Martell can abide by, and take advantage of, the terms of probation I impose, perhaps she can break the cycle of family violence and family dislocation that brought her before the Court in the first place. [ 47 ] For these reasons, I grant the defendant a conditional discharge with twelve months probation on the following conditions, which are in addition to the statutory conditions: i. the defendant must report to the Meadow Lake probation office within two working days, and after that she must report whenever her probation officer requires her to do so, ii. she may not possess or consume alcohol, and she may not attend bars or liquor stores, iii. she must undergo assessment, and undertake treatment, or counselling, for addictions, anger management, and personal counselling, as told to do so by her probation officer, and iv. she may have access with the complainant:

a) while supervised by employees of the Ministry of Social Services, or by an adult person designated by the Ministry, or

b) unsupervised, when allowed to do so by the Ministry, or

c) in accordance with the terms of an order made by a court of competent jurisdiction under The Child and Family Services Act , SS 1989-90 c C 7.2 . _____________________ M. Martinez, J.