Her Majesty the Queen - v. -, 2017 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 011 Date: February 8, 2017 Information: 37253281 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Edward John Berg Appearing: Mr. Barrie Stricker For the Crown Mr. Merv Shaw, Q.C. For the Accused SENTENCING DECISION D. KOVATCH, J BACKGROUND AND FACTS [1] In a decision now reported at 2016 SKPC 55 , 2016 SKPC 055, I found the accused Edward John Berg guilty ofassault causing bodily harm. It is important to note that the Crown had proceeded summarily in the matter.

I now must pass sentencefor that offence. [2] In paragraph 11 of the trial decision, I described part of the accused’s video taped statement to police, as follows:

The officer spoke at some length to Mr. Berg about the frustrations and pressures of being a parent. He suggested to Mr. Berg that the accused became very frustrated, “and snapped”. After an initial denial of this scenario, Mr. Berg then agreed that was what happened. He said that he did not fall asleep after being awoken by Rebecca and her leaving to go to school. He said he began playing games. He spoke of how he has Asperger’s Syndrome and he can become very intense about such matters. Anna was crying and crying. He attempted to comfort her but she would not be comforted, and continued to cry.

He said he held the controller and the cord and he hit her with the controller. He stated that he felt “super bad” about it, and then put Anna in her crib and he proceeded to get ready for work. He said he never wanted to hurt Anna, and he tried to block it out of his memory and act as if it had never happened. I concluded that the assault had occurred as described by Mr. Berg in this statement, and found him guilty of the charge. [ 3 ] It is significant to note that Mr.

Berg entered a not guilty plea, and during the trial testified that he did not assault his daughter and that he felt pressured by the police officer to give this false statement. [ 4 ] A pre-sentence report was requested and prepared. Following preparation of the pre-sentence report, the sentencing was adjourned on a number of occasions, as we attempted to obtain a follow up report with greater emphasis upon the accused’s mental health conditions, and how they may have played into the commission of this offence.

In particular, we were looking for more information regarding him having Asperger’s Syndrome and ADHD and how that might have affected the situation. Unfortunately, we were completely unable to obtain any additional information. The court was advised that there was no one within the existing health or mental health system that could see Mr. Berg and provide such a report. Further, the Government of Saskatchewan has absolutely no funding to obtain such a report from a private health practitioner for an adult person. It appears I simply must do the best with the limited information I have, as set out above.

As a result, I conclude that Mr. Berg had some poor parenting skills and a poor ability to cope with the stressful situation brought about by his daughter crying. This was directly connected to his suffering from Asperger’s Syndrome and ADHD. On this one occasion, he reacted very badly, striking his daughter with a game controller unit and causing severe bruising to her. [ 5 ] The pre-sentence report was prepared by the probation officer, Ms. Karla Terry. She, like the court, did the best that she could with limited knowledge and resources that she had available to her. In that report, Ms.

Terry notes that this incident brought about the marital separation of the accused from Rebecca Berg. Since the separation, Rebecca has moved to Edmonton with their daughter. Mr. Berg has had very limited contact, if any, with either his wife or his daughter since her move to Edmonton. He of course continues to reside in Moose Jaw. [ 6 ] In the report, Ms. Terry speaks of Mr. Berg being diagnosed with ADHD, and the medications he is on. She then states: Edward has been seeing a Mental Health and Addictions Services counsellor, Dyllan Payne, since April, 2016, in relation to his depression and anxiety.

The writer confirmed his involvement with Mental Health and Addiction Services; counsellor, Mr. Payne reports he meets with Edward on a weekly basis and they are working on “stress management, managing his ADHD symptoms, setting boundaries with people, and improving self esteem”. In the PSR Ms. Terry goes on to refer to Mr. Berg’s denial of his involvement in the incident and that he had no insight or strategy for prevention of a further offence. Nevertheless, she concludes that his general risk for re-offending is low. She stated in part: In this writer’s opinion, electronic monitoring may not be required.

The subject is low risk to re-offend and there is no further risk to the victim as the victim and his ex-spouse have left the province. It is suggested that the subject’s risk could be managed in the community through a daily curfew. A community order would also ensure the subject is maintaining contact with his family doctor and Mental Health and Addictions Services counsellor. A short conditional sentence order would make certain the subject is remaining connected to his existing community supports. SENTENCING OBJECTIVES AND FACTORS [ 7 ]

Section 718 of the Criminal Code states in part as follows: 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; . . . [8] From the above, it is clear that denunciation and deterrence must be considered in all sentencing cases. In addition, there isabundant case law discussing the particular importance of these factors when dealing with cases of an adult assaulting a child. Clearlythe law must not only enunciate a policy, but be seen to enforce a policy of protecting vulnerable children in our society. In fact, section718.01 states as follows: When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2 lists a number of what may be aggravating or mitigating factors to be taken into account. It again refers to evidence ofabuse of a child under 18 years, evidence that the offender was in a position of trust in relation to the victim, and evidence of the impactof the offence upon the victim. All of these are aggravating factors in this case. [9] The mitigating factors are: (

a) The relatively young age of the accused; (

b) the accused has no criminal record; (

c) the medical and mental health problems of the accused; (

d) that this was a single incident occurring out of frustration; and (

e) there appears to be no long term effects upon the child. COUNSEL’S POSITIONS ON SENTENCING [10] Mr. Stricker, for the Crown, referred at length to the objectives of sentencing and the aggravating factors, and asked me toimpose a sentence of 12 to 18 months in jail. [11] Mr. Shaw, for the defence, urged me to consider the relatively young age of the accused, his problems, and craft arehabilitative sentence. He suggested this could be done by a conditional sentence order, followed by probation. ANALYSIS AND DECISION [12] I reviewed many judicial decisions attempting to come to my decision in this case.

One of the decisions that is cited andreferred to particularly often is R v Marks, (1994) (NL CA), NJ No 241 (QL) [Marks], a decision of theNewfoundland Court of Appeal. At paragraphs 27 and 28 of that decision, the Court made the following statement: [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 injuries willresult 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, actingout 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 second

[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. This general categorization of assaults related to children has been frequently used by courts across the country. See for example R vEvans (1996), (AB CJ), 182 AR 21 [Evans].

In the Evans case, the court added a third category: Cases involving diminished responsibility through mental disorder where the of normal mental condition of the accused requires thattreatment of the offender be given a priority over the principles of general and individual deterrence. In the case of R v Nickel, 2012 ABCA 158, at first blush, the court appears to be somewhat critical of this categorization.

However, inmy view, a reading of the entire decision would indicate that the court is not so critical of the categorization, but strongly makes the pointthat violent behaviour toward children, even where that violent behaviour is only a single incident and out of frustration, may still attracta jail sentence. [13] In my view, the categorization the court enunciated in Marks is still a valid one. Further, this is a category II case with asingle incident of assault.

It is a case where the father was immature and unskilled in child care, and acted on emotional upset,frustration and impatience, without a full appreciation of the injuries that might result. [14] There are some cases where an accused is given a conditional discharge following an assault upon a child. See for example Rv J.B., [2015] NJ No 312 (QL). However, I would suggest that in most cases where a conditional discharge is granted, there is verylimited evidence of bodily harm or very minimal bodily harm.

In this case, with the significant injuries and the severe bruising to thisvery young child, I would be reluctant to deal with the matter by way of conditional discharge. [15] On the basis of my examination of the authorities, I would conclude that the sentencing range for this case is from asuspended sentence and probation on the low end, to a term of actual jail.

In this case, I have determined that the appropriate sentence isone of a conditional sentence order, followed by probation. [16] In R v D.P.J., 2004 BCSC 1774, the accused assaulted his six year old daughter on three separate occasions by striking herwith a plastic coat hanger. The court imposed a three month conditional sentence followed by probation. [17] In R v D.G.F., 2007 ABPC 285, the accused assaulted his 11 year old son. There was but one incident, but the facts are muchworse than the case at bar. He grabbed the son by the hair and dragged him to an adjacent room.

He hit him numerous times with aleather belt, and while the son was on the ground, kicked him. He also pushed his face into a snow bank. The court imposed a 90 dayconditional sentence order, followed by probation. [18] In R v G.D., 2013 BCSC 2463, the accused was convicted of six counts of assault on his various children. There werenumerous incidents. He was sentenced to an 18 month conditional sentence order, followed by probation. [19] In R v R.S.W. [2015] NJ No 82 (QL), the accused was convicted of two counts of assault. The victims were his son anddaughter.

The accused was given a four month conditional sentence order, followed by two years of probation. [20] In R v Morgan, [2016] NJ No 313 (QL), the accused was a child care worker. She grabbed an 18 month old child’s face, tokeep her still while changing her diaper. This resulted in bruises to the child’s face, which the accused attempted to cover up with makeup. The accused was given a two month conditional sentence order with house arrest, followed by one year of probation. [21] In these various sentencing decisions, many other cases are referred to where similar sentences have been imposed.

[ 22 ] As a result, I sentence Mr. Berg to three months in a Provincial Correctional Centre, to be served conditionally and in the community on the following conditions: i.

That he keep the peace and be of good behaviour; ii. appear before the court when required to do so by the court; iii. notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation; iv. remain within the jurisdiction of the court (Saskatchewan) unless written permission to go outside of that jurisdiction is obtained from the court or supervisor; v. notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation; vi. during the three month conditional sentence order, you shall be confined to your home 24 hours per day.

You shall not leave your home except when you have permission from the supervisor, and shall only be away from your home for the time and purpose stated by the supervisor; vii. report to the probation officer or supervisor in this building immediately and thereafter as and when required by the probation officer or supervisor; viii. seek and maintain employment or educational programming as directed by the probation officer or supervisor; ix. attend all medical appointments, take all prescribed medications as required, and participate in any follow up programming or therapy as may be required by the medical profession.

Execute a release form authorizing release of information to the probation officer and supervisor to show compliance with this provision. x. Participate in any program for personal counselling, medical, psychiatric or psychological therapy or treatment, as directed by and to the satisfaction of the probation officer and supervisor and execute an authorization directing release of information to the probation officer and supervisor. [ 23 ] Following conclusion of the conditional sentence order, Mr. Berg will be on probation for a further period of one year.

During the term of the probation order you will not be under house arrest or confined to your home. All of the other terms of the conditional sentence order will remain in full force and effect as part of your probation order. [ 24 ] This is a primary designated offence within the meaning of

section 487.04 of the Criminal Code . As a result, I must order Mr. Berg to report to Moose Jaw Police Services no later than 3:00 p.m. on Friday, February 10, 2017, for the purpose of providing bodily samples suitable for forensic DNA analysis. [ 25 ] This is an appropriate case for a firearms prohibition order under

section 110 of the Criminal Code . There will be such an order in existence for three years from today’s date prohibiting the accused from being in possession of any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 26 ] There is of course, the mandatory criminal victim surcharge in the amount of $100.00. Mr. Berg will have until August 31, 2017 to pay off the criminal victim surcharge, or make arrangements to work it off on fine option.

Dated at the City of Moose Jaw, the Province of Saskatchewan this 8 th day of February 2017. __________________________ Kovatch, J