r v. Aisha, 2021 QCCQ 2252

R. c. Thornton 2021 QCCQ 2252 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-169518-187 DATE: March 29, 2021 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Aisha THORNTON Accused REASONS FOR SENTENCE [ 1 ] Mrs. Thornton pleaded guilty to a count of assault on an 8-month-old baby. The charges stem from events that occurred on March 27, 2018. Mrs. Thornton was hired as a nanny after posting an ad offering private childcare services.

The assault took place at the family residence on the first day she was left alone with the child. [ 2 ] The assault occurred approximately 30 minutes after the mother had left the house. It was caught on tape by a surreptitious camera allowing the parents to watch inside their house. The mother saw Mrs. Thornton hit her child on the head with both hands opened. She came back home and called the police immediately. Mrs. Thornton was arrested and charged with assault. [ 3 ] The video was handed over to the police. It shows Mrs. Thornton hitting the baby 6 to 8 times openhanded.

The assault takes place suddenly and unexpectedly after the baby was taken out of the playpen and placed on his back on the sofa. The events lasted less than a few seconds. [ 4 ] In August 2019, Mrs. Thornton pleaded guilty to the count of assault. A pre-sentence report containing information on her profile was prepared by a probation officer.

At the request of the defence, the sentencing hearing was postponed on a few occasions in order to evaluate the need for expert evidence. [ 5 ] At the sentencing hearing held on December 11, 2020, the video was shown to the Court and a victim impact statement prepared by the parents was filed by the prosecution. For her part, Mrs. Thornton read a letter about the events and her lawyer filed documents pertaining to her personal and psychological circumstances. [ 6 ] The Court must now determine the just and appropriate sentence to impose on Mrs. Thornton.

THE PARENTS AND THE BABY [ 7 ] According to the victim impact statement, the assault had an emotional impact on both parents. Although they were in no way responsible for the criminal act committed by Mrs. Thornton, they felt an important sense of guilt for having left their baby under her care. [ 8 ] The two parents developed anxiety over the potential consequences their baby might have suffered had Mrs. Thornton's actions not been exposed by the surreptitious camera. They explained that they would never have known how dangerous Mrs.

Thornton was if they hadn't used the camera. [ 9 ] Following the assault, the parents confirmed with medical experts that the baby had no serious physical consequences. They felt lucky that their baby did not suffer severe consequences from this situation. They explained that they do not want other children to be victims of this ill-intentioned woman. They still have fears in connection with the accused.

THE ACCUSED [ 10 ] Mrs. Thornton is 44 years old. She was 41 at the time of the events. She was born in Libya and lived in Pakistan for many years before immigrating to Canada in 2006 with her first husband and son. She gave birth to her son in 2004 two years before coming to Canada. [ 11 ] Mrs. Thornton has a criminal record.

She has two convictions for criminal acts committed against her own son: ➢ In 2007, she was convicted in Ontario for the offence of child abandonment ( s. 218 of the Criminal Code ) and sentenced to an 18- month conditional sentence order (CSO) pursuant to s. 742.1 of the Criminal Code ; ➢ In 2010, she was convicted for assault causing bodily harm and failure to comply with a probation order, for events that took place in 2008. At the time of the assault, her son was only 3 years old. She was sentenced to a 15-month conditional sentence order. [ 12 ] Mrs.

Thornton divorced from her first husband shortly after arriving in Canada. Her son returned to Pakistan in 2008 when she lost custody of him as a result of the assault committed against him. For the next 12 years, he was raised and taken care by his grand- mother and uncle in Pakistan. During that time, Mrs. Thornton remained in Canada while maintaining some contacts with him. [ 13 ] In 2014, Mrs. Thornton remarried another man. She stayed in this relationship until 2020. In the letter that was filed in evidence and read at the sentencing hearing, Mrs.

Thornton stated that she went through domestic abuse during this relationship. She separated from her second husband in March 2020, and it seems that this decision would have helped to improve her mental health and to reduce her stress. [ 14 ] In her letter, Mrs. Thornton stated that she was not “ in a good mental or physical condition ” when she committed the assault in the present file. She expressed remorse and regrets for her conduct and apologized to the parents for her behavior.

She also mentioned that she sought counselling from a psychologist with respect to her mental health issues. [ 15 ] Following her guilty plea in the present file, and pending the arguments and decision on sentencing, Mrs. Thornton took steps to bring her son back from Pakistan. According to certain documents produced in evidence at the hearing, it appears that this decision was made because the family members who had taken care of him for the past 12 years could no longer do so. [ 16 ] Her son arrived in Canada in January 2020, two months before she separated from her second husband.

Assessments made since his return to Canada state that he presents “ characteristics which are consistent with Autism Spectrum Disorder ” [1] . He currently lives with Mrs. Thornton and is almost 17 years. He has no contact with his father. [ 17 ] Regarding her status in Canada, documents filed by defence counsel show that Mrs. Thornton tried for several years, in spite of her criminal record, to obtain her permanent residency through the sponsorship program [2] .

Since her separation from her second husband and her son’s return to Canada, she withdrew her sponsorship application and requested that her application for residency be processed on humanitarian and compassionate grounds only [3] . [ 18 ] The pre-sentence report prepared by the probation services describes Mrs. Thornton’s general and personal profile. It refers to her childhood as well as her personal, professional, psychological, marital and criminal background. With regard to her childhood, Mrs. Thornton characterized her childhood to the probation officer as being physically and verbally abusive.

As for the two criminal acts committed on her son, the probation officer reported that Mrs. Thornton affirms having “ no recollection of her actions, which she explains by a possible episode of post-traumatic stress ”. [ 19 ] In spite of the “ regrets and shame ” verbalized by Mrs. Thornton in relation with the incident in the case at bar, the probation officer affirmed that “ she tends to use justifications and minimize her responsibility for the criminal act committed ”.

In view of the “ repetitive nature of violent acts committed against a child ”, the probation officer expressed concerns about the situation. [ 20 ] While acknowledging the willingness verbalized by Mrs. Thornton to take steps to improve her mental condition, the probation officer characterized the risk to reoffend as being “ moderate ”. Moreover, in addition to any sentence decided by the Court, he recommended that she maintain psychological follow-ups and participate in anger management programs.

POSITION OF THE PARTIES [ 21 ] Given all the circumstances and the applicable principles, the Crown submits that a term of imprisonment of 6 to 9 months would be a just and appropriate sentence. In support of its submission, the Crown emphasizes on the two previous convictions in similar matters and submits that the principles of denunciation and deterrence should be given priority in this case. The Crown relies on the case of R . c.

Braud [4] in which a sentence of 6 months of incarceration was imposed in comparable circumstances. [ 22 ] Despite her two prior convictions in similar matters, th e defence argues that Mrs. Thornton should be granted a conditional discharge. Given her personal profile, including her parental responsibilities and mental health issues, and in view of the indirect possible consequences on her immigration legal actions and status, the defence argues that the present case does not call for a heavy sentence.

The defence pleads that a conditional discharge with a probation order would sufficiently serve the interests of justice. ANALYSIS [ 23 ] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code . They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, repair of harm done to the victims or the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done. [ 24 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree

of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances. [ 25 ] Subsection 718.2a)(ii.1) states that the fact that the offender abused a person under the age of eighteen is an aggravating factor.

Likewise, the fact that the offender abused a position of trust or authority in relation to the victim is also considered an aggravating factor: s. 718.2a)(iii) of the Criminal Code . [ 26 ] It must be emphasized that the determination of a fit sentence is a fact-specific exercise. The facts of the offence, its consequences, the circumstances of the accused and his or her moral blameworthiness are all factors that the Court has to consider.

In the words of the Supreme Court: “ the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation ” [5] . [ 27 ] In the case at bar, t he maximum sentence for the offence of assault is 5 years of imprisonment. Additionally,

section 718.01 of the Criminal Code explicitly provides that judges shall give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involves the abuse of a person under the age of eighteen years: 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 give primary consideration to the objectives of denunciation and deterrence of such conduct . (Emphasis added) [ 28 ] That being said, it bears repeating that proportionality must always guide judges in determining the sentence that is fair and appropriate in any given case.

The fact that denunciation and deterrence should be emphasized does not mean that the other factors must completely be ignored [6] . In the end, a sentence should always be individualized, proportionate to the gravity of the offence and the degree of responsibility of the offender, and consistent with the sentencing objectives already mentioned. [ 29 ] The protection of children is one of the most fundamental value of our society.

Sentences imposed for offences that involve abuse of children should reflect the wrongfulness and harmfulness of physical interference with vulnerable and helpless human beings. [ 30 ] Sentences imposed for incidents of abuse of children can include incarceration of several months, even for offenders with no previous criminal records [7] . In some cases the courts have favoured alternatives to incarceration [8] , or intermittent jail terms [9] , where there existed specific circumstances which allowed for more weight to be given to the principle of rehabilitation. [ 31 ] In the case of Mrs.

Thornton, the Court takes into account the following aggravating factors: ➢ the two prior convictions of Mrs. Thornton for criminal acts involving children; ➢ the assault in the present case was committed on an 8-month-old baby; ➢ the fact that it constitutes an abuse of trust and authority; and ➢ the harm suffered by the parents as described in the victim impact statement. [ 32 ] With regards to mitigating factors, the Court considers: ➢ that Mrs.

Thornton pleaded guilty; ➢ the remorse and regrets she expressed in her letter; ➢ that she suffers from mental health issues and sought counselling from a psychologist ; and ➢ all her personal circumstances as described in the evidence filed at the hearing, including the support she recently decided to provide to her son. [ 33 ] In the present case, after considering all the circumstances, the Court concludes that the position advanced by the defence is too lenient.

On the whole of the evidence, the circumstances of the present case can be distinguished from those in which intermittent jail terms or alternatives to incarceration have been imposed. [ 34 ] In light of the aggravating factors listed above, a sentence of this nature would not be proportionate to the gravity of the offence and the degree of responsibility of Mrs. Thornton.

It would not sufficiently take into account the seriousness of the offence, her prior convictions in similar matters, her degree of responsibility, the consequences on the parents and the sentencing objectives of denunciation and deterrence. [ 35 ] Had it not been for the mitigating factors mentioned above and the collateral immigration consequences of the sentence [10] , the Court would have imposed a longer sentence of incarceration .

However, having regard to the appropriate weight to be given to all those factors , the Court is of the opinion that the following term of incarceration is just and appropriate, and will sufficiently serve the interests of justice. [ 36 ] For all those reasons, given all the circumstances, the case law and the applicable principles, Mrs.

Thornton is hereby sentenced to a term of imprisonment of 6 months less a day . [ 37 ] In addition, the Court directs that she comply with the following conditions of a probation order for a period of 3 years : ➢ Keep the peace and be of good behaviour; ➢ Appear before the Court when required to do so by the Court;

➢ Notify the Court or probation officer in advance of any change of address, and promptly notify the Court or the probation officer of any change of employment or occupation; ➢ Report to a probation officer within three working days of your release from jail and, thereafter, whenever required by the probation officer and in the manner directed by the probation officer; ➢ Follow any treatment recommended by the probation officer; ➢ Continue her follow-up with a psychologist and provide the probation officer with documentary evidence of her attendance; ➢ Abstain from being in the presence of a person under the age of 16 years old, except in the company of adults responsible for them; ➢ Abstain from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years old; ➢ Abstain from being in the physical presence of N.

A., her husband and her child; ➢ Abstain from communicating of attempting to communicate with N. A., her husband and her child; ➢ Abstain from being within a 200 meter radius of the domicile, place of work, place of studies or kindergarten of N. A., her husband and her child. ______________________________ YVAN POULIN, J.C.Q. Me Jérôme Laflamme For the prosecution Me Véronique Talbot For the accused Date of hearing: December 11, 2020