R. v. J.F, 2015 QCCQ 1098

Unofficial English Translation JL 2407 R. c. Bastien 2015 QCCQ 1098 COURT OF QUEBEC Criminal and Penal Division CANADAPROVINCE OF QUEBECDISTRICT OF MONTREALCITY OF MONTREALNo.: 500-01-050002-101 DATE: February 17, 2015______________________________________________________________________ THE HONOURABLE LOUIS A.

LEGAULT, J.C.Q., PRESIDING ______________________________________________________________________ THE QUEENPROSECUTRIXv.FRANCIS BASTIENACCUSED ______________________________________________________________________ SENTENCE______________________________________________________________________ [1] The indictment charges the accused with criminal negligence causing the death of JÉRÉMY BASTIEN (section 219 andparagraph 220(

b) of the Criminal Code) and with committing assault against JÉRÉMY BASTIEN while carrying, using or threatening touse a weapon (section 267(

a) of the Criminal Code) and with committing assault against JÉRÉMY BASTIEN thereby causing bodilyharm (article 267(

b) of the Criminal Code). [2] Criminal negligence causing death is defined in

section 219 of the Criminal Code as doing anything or omitting to do anythingthat it is a duty to do, to wit: wanton or reckless disregard for the life or safety of other persons. The word "duty" signifies a duty imposedby law (subsection 219(1) and (2) of the Criminal Code). [3] ELEMENTS OF THE LAW OF CRIMINAL NEGLIGENCE – In 2008, the Supreme Court of Canada defined the constitutiveelements of criminal negligence in R. v.

J.F.[1] by reiterating the remarks of the Supreme Court in Tutton: "...the Crown was bound toshow that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) fromthe conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk tothe life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp.1430-31; R. v. Sharp (1984), (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.)”. In R. v.

Poppen,[2] it was noted that theexpression "necessaries of life" also covers the protection of the child against violence from a person who has custodial responsibilities. [4] In R. v. Naglik[3] the Supreme Court of Canada noted that this is the duty contemplated by the provision defining criminalnegligence: “Section 215(2)(a)(ii)[4] makes the failure to fulfil the duty to provide necessaries an offence where ‘the failure to performthe duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to beendangered permanently’.

It thus punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where itwas objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk ofpermanent endangerment to the health, of the child".[5] The Supreme Court defined the duty. It stated that, "the language ... referring tothe failure to perform a 'duty' suggests that the accused's conduct in a particular circumstance is to be determined on an objective, orcommunity, standard.

The concept of a duty indicates a societal minimum which has been established for conduct: as in the law ofcivil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective

beliefs and priorities. The policy goals of the provision support this

interpretation .

Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct ". [6] (Emphasis added.) [ 5 ] The Civil Code of Québec codifies the obligations and rights of persons in parental roles. These rights and obligations include minimum societal requirements, that is, the generally applicable social standards in Quebec, and are found in the following provisions: •

article 10, which sets out the right to the integrity of one's person and the principle that every person is inviolable •

article 32, which sets out the right of every child to the protection, security and attention that his parents or the persons acting in their stead are able to give to him •

article 33, whereby every decision concerning a child shall be taken in light of the child's interests and the respect of his rights and that consideration be given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation •

article 598, whereby a child remains subject to the authority of his father and mother until his majority or emancipation •

article 599, which states that the father and mother have the rights and duties of custody, supervision and education of their children, and that they must maintain their children.

Article 600 provides that the father and mother exercise parental authority together. If either parent dies, is deprived of parental authority or is unable to express his or her will, parental authority is exercised by the other parent.

Article 601 states that the person having parental authority may delegate the custody, supervision or education of the child. •

article 603, which states that where the father or the mother performs alone any act of authority concerning their child, he or she is, with regard to third persons in good faith, presumed to be acting with the consent of the other parent. Under

article 605, whether custody is entrusted to one of the parents or to a third person, for whatever reason, the father and mother retain the right to supervise the maintenance and education of the children, and are bound to contribute thereto in proportion to their means. [7] [ 6 ] The right of everyone to life, liberty and security of the person is guaranteed in

section 7 of the Canadian Charter of Rights and Freedoms . [8] The Court also refers to the leading case [9] circumscribing the law with regard to the corporal punishment of young children.

From the moment it is born, a child is a full person who benefits from rights that are guaranteed by statutes and the fundamental law. [ 7 ] One should always remember, and this is particularly the case in the context of the violence for which the accused admits he is criminally responsible, that human beings are not possessions and that their integrity must not be sacrificed at the whim of parents or those responsible for their care and interests.

Children are members of a vulnerable, powerless group. [ 8 ] Following his guilty plea, the accused was convicted of criminal negligence causing the death of JÉRÉMY BASTIEN between November 30, 2008, and December 6, 2008, assault with a weapon, and assault causing bodily harm to the person of JÉRÉMY BASTIEN, between June 10, 2008, and November 30, 2008. [ 9 ] The offence of criminal negligence causing the death of JÉRÉMY BASTIEN is punishable by life in prison, while the offences of assault causing bodily harm and assault with a weapon are punishable by ten years in prison. [ 10 ] EVIDENCE OF CRIMINAL NEGLIGENCE – By consent, counsel filed testimony from JÉRÉMY BASTIEN's babysitter and the doctor who performed the autopsy on the four-year-old child, in addition to the statements of the accused, and they proceeded with admissions justifying the guilty plea on the three counts, the accuracy of which was verified in defence not merely once but twice. [ 11 ] RELATIONSHIP, COHABITATION AND DEATH OF JÉRÉMY BASTIEN – The accused and his spouse had been dating for six months and living together since early November of 2008.

The child died on December 6, 2008, following aggravated assault causing his death. The accused's spouse was convicted for this homicide. [ 12 ] VIOLENCE AGAINST JÉRÉMY BASTIEN – In particular while they were living together, the accused's spouse STÉPHANIE MEUNIER urged the accused to vigorously discipline his child. He acknowledged that he physically abused the child about twenty times at the insistence of his spouse, four or five of these times with a belt, five to ten times with a wooden spoon, and the other times with his bear hands on the child's buttocks.

The accused acknowledged that he committed assault with a weapon and assault causing bodily harm to his son JÉRÉMY BASTIEN. How could anyone believe that when the accused struck the boy with a belt, it would leave no mark? The marks left by the blows were certainly not as bloody as those inflicted in the last days of the child's life, but it is clear and admitted that the accused whipped his child, who was four years old. The skin of a four-year-old child is delicate.

By his admissions, and based on inferences drawn from the evidence, proof is made that the accused is guilty of assault with a weapon and assault causing bodily harm. [ 13 ] VIOLENT SPOUSE – The evidence reveals that the accused could not have been unaware that his spouse presented a real risk to the integrity, security and life of the child. The accused surely saw that his child had been beaten or that the child had suffered injuries to his genitals. His spouse blamed her children. He states that his spouse urged him to punish him harshly.

This punishment took the form of striking the boy with belts and wooden spoons, and striking him on the buttocks with his bare hands. But who was the source of the violence that made it so difficult for the child to walk? The babysitter observed the child’s significant mobility problems long before she stopped taking care of the child. In the autopsy, Dr. Tanguay observed major injuries to the gluteus muscles that made it very difficult and painful for the child to move around.

Again, this was a situation in which the accused should have been concerned about the threats to the child's integrity. [ 14 ] BABYSITTER'S TESTIMONY [10] ABOUT HER TIME BABYSITTING THE CHILD BETWEEN MARCH AND LATE OCTOBER – She took care of the child from Monday to Friday. After one month in her home daycare, the babysitter had noticed marks left by a hand on the child's buttocks (page 108). The child said that his father hit him because he did not behave. The child said that the

accused's spouse hit him. Starting in the summer, the child was hit very often, every week, frequently, and there were marks on the child's buttocks (page 115). She often informed the father that his spouse was hitting the child. She states that he said that he would look into it (page 115). His spouse went so far as to dress JÉRÉMY as a girl. Apparently, both of them laughed about it. The accused's spouse threatened the babysitter, saying that she would take the child away and bring him to her sister's to discipline him, and when the accused was asked to chime in he discreetly acquiesced (pages 123–124).

The accused's spouse spoke aggressively. At the babysitter's house, when they arrived, the accused and his spouse had forced him onto his knees, even though he tried to resist. He was forced to hold cans of tomatoes in his hands with his arms spread. When the accused was not present, his spouse allegedly said that this was to make the child stronger (page 126). During the summer, the child could not run because he could no longer lift his foot (page 127). At the Halloween party, the babysitter suggested that the accused leave the child with her because the child did not like his spouse.

She did not want anything to happen to the child (page 132). This happened before November of 2008, after which the babysitter stopped taking care of the child. This also means that the accused was clearly aware that the child had been beaten to the point of not being able to walk normally anymore. The child said that his name was "fucking bitch" (page 135), which is telling as to how he was treated in his home. The babysitter states that she repeatedly told the accused about the child's injuries (pages 134–135). The accused's reaction was that he would look into it or that he would talk about it (page 135).

She states that, because the father had been informed, she did not think to call the youth protection department (page 137). The babysitter clearly states that the accused knew, that she was constantly telling him (page 137). The babysitter also reported to the accused that the child had told her that he did not want the spouse to take care of him. [ 15 ] KNOWLEDGE OF ACCUSED OF THE AGGRESSIVENESS AND VIOLENCE OF HIS SPOUSE – The accused knew how his spouse conceived of his role as a father in disciplinary matters. She did not tolerate the child's presence and was extremely strict.

There is a common thread between the violent outbursts and the lack of love for this child, who was sacrificed by the accused. His disregard for his child was excessive, marked and significant. The accused and his spouse beat JÉRÉMY. The testimony of the witnesses heard and the statements made leave no doubt. The accused had knowledge that may be inferred from the concerns and reports of the babysitter, the remarks made by his son, and the injuries that indicated the violence of his spouse. No other conclusion may be drawn from his obvious injuries.

The accused made promises to take care of the situation in which his son was victimized that were nothing more than words. He did not protect his son. Complacency, convenience, and dependency in his romantic relationship were guiding him, and in his impotence, he chose silence. He chose his spouse over the interests of his son. He, who had himself experienced a certain amount of violence as a child, abandoned his child to this woman.

Even worse, his wanton disregard combined with his own punishment of his child locked him in a silence imposed by convenience and blameworthy action. [ 16 ] SPOUSE AS CARETAKER OF THE CHILD DURING THE ACCUSED'S ABSENCE ON THE DAYS LEADING UP TO THE CHILD'S DEATH – In early December, the accused left to take

part in a paid clinical trial for Anapharm. During this time, the accused had entrusted the care of his child to Stéphanie Meunier, who has since been convicted of the homicide of this child. On December 6, 2008, the child JÉRÉMY BASTIEN died following mistreatment at the hands of the accused's spouse, Stéphanie Meunier.

This woman, who was invested in a relationship of power and control over his son, whom he knew advocated violence and control and engaged in it herself, as evidenced by the child's injuries, and with whom he had become involved in a relationship where she wielded all the power, to which he submitted because of his emotional dependence –– it was to her that he shamefully and blindly entrusted the care of his child. So much was done to punish this four-year-old child, to humiliate him, to bully him, to such an excessive degree.

In late November of 2008, the accused, who had accepted his spouse's encouragement and her participation by beating and physically abusing the child, allowed her to decide his child's fate. He chose his relationship with his spouse over the major risk to the integrity and life of the child, whom he left with his spouse during his time away to be a guinea pig for the pharmaceutical industry. [ 17 ] FORENSICS REPORT – The forensics report describes the multiple traumatic injuries over almost all of the child's body, which were inflicted at different times. This child was beaten repeatedly.

His entire body was evidence of that fact. Dr. Caroline Tanguay, part of whose opinion is reproduced here in the footnotes, [11] confirms the difficulty of dating the injuries. It is clear that the child was whipped repeatedly, that he was bitten as the pre-sentence report notes, [12] that he was struck with a spatula on many occasions, and that he suffered injuries to his genitals. The father cannot be blamed for all of the bad treatment suffered by the child at this woman's hands.

But he was aware of his spouse's excesses as a result of her recommendations and, in particular, through the marks and sequelae the child suffered beyond the blows that he acknowledges giving to his child. [ 18 ] In this case, the admission of guilt with respect to criminal negligence causing the death of his son is justified by the fact that the accused had a duty to protect his child, that he failed in his duties as a father, and that he displayed clearly marked and significant wanton or reckless disregard for the life, integrity and security of the child. [ 19 ] The evidence reveals this marked and significant departure in the father's violence, in the endangerment of his child JÉRÉMY BASTIEN when he entrusted him to his spouse, whose violence he was aware of through her encouragements to violently abuse his son, whose injuries were evidence of the mistreatment and brutality she inflicted on the body of this small victim.

What is more, both the babysitter and the child had directly told him of the violence of his spouse, whom he joined in punishing his son. [ 20 ] Because there were sequelae and scars from injuries indicating both the accused's violence and the violence of his spouse against his child, the accused could not have been unaware of the real risk of entrusting this child to his spouse.

The injuries to the boy's genitals, the bite marks, the belt marks, and the bruises that the child surely already had on his body were accompanied by his difficulty in moving around, which were all noticed by the babysitter, and the suffering that the child must surely have expressed. [ 21 ] In the context of the circumstances and the abuse, taken as a whole, the fear of being left with the accused’s spouse that was clearly expressed by the child victim constituted a disclosure of the danger that she presented to the child's security and integrity. Any reasonable person would have come to this conclusion.

The accused had received all the indications that placing the child under the responsibility of such a person represented a reckless and major risk. This fear was relayed to the accused by the babysitter, in whom JÉRÉMY BASTIEN had confided. This fear was communicated by the child to the accused, who turned a deaf ear. JÉRÉMY BASTIEN was only four years old, and during the final months of his life, he learned elsewhere and in another manner that love is possible and nourishing.

He could even identify what was not good for him: his father's spouse, from whom the accused failed to protect him. [ 22 ] DELEGATION OF PARENTAL RESPONSIBILITY – By entrusting his son to a woman who encouraged and incited him to severely punish his child while he also brutally and illegally punished the child by assaulting him with a weapon and causing bodily

harm, and because, due to her behaviour, he knew that she had also acted illegally and threatened the child’s physical integrity and his life, the accused is guilty of criminal negligence causing the death of the child. This appears and may be inferred from the evidence filed before the Court. The accused violently abused his son. His spouse intensified the level of violence when she beat him to death while the accused was away between November 30, 2008, and December 6, 2008. [ 23 ] The Court received a pre-sentence report, a psychological expert report, and submissions on sentencing.

The accused was also heard on sentencing. [ 24 ] The prosecution submits that a penitentiary sentence as long as five years would be appropriate on the charge of criminal negligence and that a sentence of one to two years would be appropriate for the two counts of assault with a weapon and assault causing bodily injury. [ 25 ] The defence suggests that a sentence of two years less one day with a long period of probation would be just for both the accused and society, taking into account the period of preventive detention. [ 26 ] The prosecution alleges that the four months in pre-sentence custody should be credited on a one-to-one basis due to the fact that the Court revoked the accused's release because he breached his recognizance (

section 719 Criminal Code (

section 3 and

section 534 )). OFFENDER [ 27 ] The accused has pleaded guilty. He has no criminal record for crimes against the person. [ 28 ] The accused is 32 years old. He was 26 years old when the offences took place. His childhood was marked by occasional violence against his person by his father, by learning difficulties at school, and by the accidental death of his parents when he was 11 years old. He was then taken in by his aunt and her spouse. He has good memories of them. He has spent the inheritance from his parents.

He had some drug problems, was beaten up a group of people when he was about 19 years old, and spent some time living on the streets. [ 29 ] The accused had a casual relationship with someone with whom he had a child. He maintained contact with this person, eventually sharing custody of the child with her and finally receiving sole custody after serving a short sentence for trafficking. At the time, the mother was having a difficult time because she was going through a separation. [ 30 ] After dating for six months, the accused moved in with his spouse STÉPHANIE MEUNIER and her children.

The accused had a job that required him to spend long, tedious hours on public transport every day. Financial difficulties led him to register with the Anapharm medical research centre to take medication as part of clinical trials. It was during this period that JÉRÉMY was beaten to death. [ 31 ] During the first month of cohabitation, the accused noticed bruises on the boy's penis, an injury to his head, and bite marks. [13] It is not that the accused did not hit the child. He has acknowledged doing it.

The accused had been seeing his spouse for six months, and they had been cohabiting since early November of 2008. [ 32 ] Deaf to the child's pleas to protect him from his spouse, the accused failed to intervene to protect his child. He claims that he did not realize that she was beating his child. But even the babysitter had told him about the physical mistreatment the child had suffered at her hands. She either defended herself or placed the blame for the injuries to his genitals on her own children.

He was incredibly naive to believe her, particularly when she had incited him to physically punish the boy, and the boy must have displayed marks left by mistreatment at the hands of the spouse. In fact, the accused allowed his child to be beaten, molested and humiliated, and he contributed to it. The accused said that he had not [ translation ] "perceived these actions at the time as inappropriate". [14] This is unbelievable. [ 33 ] The psychologist Vaillancourt stated that [ translation ] "no evidence of a significant emotional or cognitive problem can be detected" [15] in the accused.

He observed that the accused [ translation ] "placed blind trust in his former spouse and was seriously negligent in his protective role toward his son, who was four years old at the time". [16] [ 34 ] The accused is an individual who is dependent, insecure, fragile, vulnerable and servile, qualities that manifested in the context of this dependent romantic relationship in particular. Although the accused isolated himself in this relationship, this was not because he had no other possible support network. He did not seek help. He was a submissive man. He felt emotionally and interpersonally empty.

He did not involve his social circle. [ 35 ] The probation officer, Daniel Beaudouin, describes an individual [ translation ] "who gave himself up to this woman's whims, without opposition, regardless of the results and consequences". [17] [ 36 ] The accused has expressed regret and guilt, while appearing to rationalize his conduct and stating that he was influenced by his spouse as he had never behaved in this way in the past, [18] that he had no support from anyone, and that there was no one around him to bring him back to reality. [ 37 ] The pre-sentence report describes a need for psychological support to allow the accused to continue to grieve, which could lead him to [ translation ] "accept the role he played in the events he is charged with and to manage his emotional conflicts internally in a more responsible manner". [19] The psychologist recommends that the accused undergo therapy, in particular to [ translation ] "explore his various personal issues and their contribution to the present events and to promote a better resolution of the grieving process". [20] [ 38 ] The psychologist states that the violent conduct and serious negligence [ translation ] "did not appear necessarily inherent to the accused's functioning". [21] In his assessment, the risk of re-offending is low.

In this report, the purpose of which was to assess the dangerousness of the accused, the psychologist stated that the accused [ translation ] "does not appear to represent an increased danger to society". [22]

[ 39 ] The accused's psychological and pre-sentence reports describe an individual who displayed extremely disorganized weakness by abdicating his responsibilities as a father in favour of his relationship with his spouse. [ 40 ] In fact, his actual commission of violence against this child may be attributed to emotional and relational deprivation, a dependent and submissive relationship with this spouse, an extreme lack of self-confidence, and a marked failing in his understanding of his parental role.

One would have to be very naive not to see that the father abandoned his responsibilities and abandoned his child to his fate. The father abdicated his parental duties. [ 41 ] The accused's risk of re-offending is related to his emotional fragility, dependence, and emotional vulnerability. These risks are described as low. There no risk associated with a pathological personality. GRAVITY [ 42 ] The objective gravity of these offences, to which the accused has pleaded guilty, is significant.

The death was the result of the accused's total and wanton disregard of his duty to protect his child, to respect his child's rights, and to have them respected. [ 43 ] It appears from the violence to which he subjected his child for a short period of time. It appears from the fact that, even when urged and advised by his spouse to abuse and harshly beat the child, he did not choose to protect the boy. He received this advice from his spouse, yet he states that he was satisfied with her denials or explanations of the marks he saw on the boy's body and the injuries to the boy's genitals.

The Court does not believe him. [ 44 ] Despite all of the blows delivered by the father, the expert report describes a great many wounds that were new or had recently been re-opened, which does not rule out the possibility that many of them were caused before the accused left. These correspond to the accused's admissions of hitting the child with a belt, his bare hand, and a wooden spoon, actions that justify concluding that the father behaved brutally, even though his spouse's brutality was even more intense and deadly.

The accused endangered the child's integrity without, however, placing his life in danger. [ 45 ] The accused had the opportunity to become aware of his spouse's antipathy towards his son JÉRÉMY. He was even asked to acknowledge it. His own conduct displayed marked antipathy, thereby betraying his parental duties and the rights and best interests of the child.

The violence experienced by the child was not an isolated incident. [ 46 ] The accused's responsibility is serious for handing the child JÉRÉMY over to his spouse when he knew that she beat him and was violent toward him, and that the child feared being alone with her. He put this child’s fate in this woman’s hands when he knew that she did not like the child at all. He knew it. The child's babysitter had seen the accused and STÉPHANIE MEUNIER enjoy the humiliation that was maliciously imposed on this child before they moved in together. This was criminal disregard, extremely wanton and reckless.

He did not protect his child. In exchange for a few dollars to be a guinea pig for the pharmaceutical industry, he chose not to protect his child. [ 47 ] This case is the story of a child who became a martyr at the hands of his father and his father's spouse, a woman who apparently imposed her destructive, disciplinary and coercive vision of a child she could not love and a father who would be compromised by this vision.

This child was tortured and executed. [ 48 ] The child died because of the gross criminal negligence of the father, who sacrificed his son to a woman whose extreme violence was known to him, whose destructive ideas he applied without any consideration of the fact that the child was his own son. His son was entitled to receive the protection and love of his father. Without regard for the integrity of his son, which had already been harmed, for his need for security, for his right to life, the accused entrusted his son's fate to this woman. He did so with full awareness of this woman's extreme and hateful violence.

This miserable authoritarian had no compassion or empathy for the fate of the little boy who died, for this little child who, as his babysitter observed, had so much potential to grow in a loving environment. This woman did not grace her spouse's child with her attention or any humane treatment whatsoever. [ 49 ] The accused's powerless son sought protection, love, attention and consideration from his father. The accused sacrificed this child to his dependent need for the love of his spouse and to his need to earn a living. He states that he believed that he had achieved his dream of having a family.

But his son was excluded from this family. He allowed his son to be humiliated, shamed, beat, and brutally mistreated. He became an unworthy, cruel and violent father. The fact that he claims that he mistreated his child at his spouse's insistent demands makes this no less true. FACTORS [ 50 ] POSITION OF TRUST AND AUTHORITY – As the child’s father, the accused was in a position of trust. He was also in a position of authority.

In both of these positions, the accused bore the responsibilities of protecting and supporting his child, responsibilities that are imposed on parents in every social context, even in the animal kingdom. [ 51 ] CONSEQUENCES – The child who died was a person, a small boy who was made to suffer, whose integrity, dignity, and physical and psychological health was violated, and whose life was stolen. This child's right to live and grow was stolen from him. This little life was of great value and it was neither protected nor nurtured. This little man will never grow up.

At four years old, children are completely dependent for the care, stimulus and love that will help them grow. He was robbed of his right to develop in a loving environment. His present was destroyed, and he was robbed of his future. [ 52 ] His mother, who trusted the accused, was also robbed of her son's young life. This is an enormous loss for this mother. This loss will always be this woman's nightmare and a source of great sadness. [ 53 ] It is also a loss for the accused, who must live with his role in contributing to this death. It will be a difficult task to forgive

himself; he may never be able to. The accused will always carry his grief and his moral responsibility for breaching his duties to protect and support his child. It is a loss that he, the child's mother, their respective families, and their loved ones will never forget. [ 54 ] The interest of society as a whole in the protection of its most vulnerable members has been flouted. The accused has betrayed society's expectation that he would protect the child and the child's life and act in the child's best interests. He abdicated this responsibility and failed miserably. The price is too high. JÉRÉMY BASTIEN paid it.

He died from the blows he received. [ 55 ] The Court notes the factors and principles it must weigh in light of the offence committed by the accused. -

Section 718. The fundamental purpose of sentencing is 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; (

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 responsiblity in offenders, and acknowledgement of the harm done to victims and to the community. -

Section 718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. –

Section 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 offence or the offender, and, without limiting the generality of the foregoing, ... (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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (

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

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 [ 56 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This sentence must reflect the fact that the accused committed these offences when he was in a position of trust and authority and that his victim was under the age of eighteen. The objective of denunciation must take precedence here. A society must protect its children, its most vulnerable members.

Society's protection and interests require that those who would dare to physically assault the most vulnerable members of society be deterred from doing so. [ 57 ] Society's protection requires that parents who delegate their responsibilities for their children not act with criminal negligence that could cause the death of their children by doing something or failing to do something that it is their duty to do, through wanton and reckless disregard for the life or safety of their children.

The public must know that criminal negligence causing the death of a child will be sanctioned with a sentence seeking to to denounce and deter. [ 58 ] This is all the more so when the parent who endangers the safety and integrity of a child by delegating responsibility also displays violent behaviour toward the child. It is unacceptable for a parent or designated guardian to act without regard to the child's rights to dignity and integrity, and to do so excessively and even violently.

Such conduct runs contrary to common sense and violates the standards and duties that the law imposes on parents and guardians. [ 59 ] The courts must not trivialize violence against children or the denial of responsibility that opens the door to foreseeable violence committed by a woman who was known to have no regard for the safety, integrity or life of this four-year-old child.

The Court must denounce this plan of arbitrary, humiliating and very violent correction and punishment by a father and his spouse, which led to an escalation in violence against the child and the child's death. [ 60 ] The complicity of a father who abuses his child when advised and encouraged to do so is odious and serious. The fundamental rights of a child to dignity and integrity must not be sacrificed to a spouse's servile need for love.

This is a question of principle. [ 61 ] DENUNCIATION AND SYMBOLIC VALUE – Antonio Lamer J. powerfully described that there are circumstances in which retribution and denunciation together affirm our broad societal values and the real protection that must be given to the most vulnerable members of our society. "Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender.

The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with

a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on oursociety's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974),60 Cr. App. R. 74, at p. 77. ‘society, through the courts, must show its abhorrence of particular types of crime, and the only way in whichthe courts can show this is by the sentences they pass’.

The relevance of both retribution and denunciation as goals of sentencingunderscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmfulconduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values.A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attachingnegative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basicset of communal values shared by all Canadians as expressed by the Criminal Code”.[23] [62] RANGE OF SENTENCES – In cases of criminal negligence where children are victims of the failure of an accused to dosomething that it is his or her duty to do, sentences range from suspended sentences to sentences of more than five years.

It is alsoappropriate to refer to cases of manslaughter by criminal negligence, where sentences longer than five years have been imposed. [63] On November 17, 1983, in MacHielsen, 60 N.S.R. (2d) 397, a case involving a father’s criminal negligence causing the death ofhis four-year-old daughter, the Court of Appeal of Nova Scotia noted that it is also within the purview of the courts to protect childrenand that the "primary purpose of sentencing is deterrence.

The courts have an added burden to see that the law protects those who cannotprotect themselves".[24] In that case, the Court noted that the accused could not have been unaware of the violence being committedagainst the child in the apartment, or that the circumstances in which the child was burned were such that the accused should haveseriously investigated the child’s injuries. The child perished at the hands of the babysitter, who was abusing him.

The Court imposed afive-year sentence. [64] The Court of Appeal of Nova Scotia did, however, refer to judgments where parents were sentenced to five to eight years fordirect violence against a child. The Court of Appeal of Nova Scotia cited in this respect various cases in which parents beat their childrento death or were criminally negligent in their respect.[25] [65] Abundant case law concerning the manslaughter of young children and aggravated assault has also been submitted, and itdisplays a broad range of sentences, each adapted to the circumstances of the case.[26] [66] In R. v.

Russell,[27] Walker J. ruled on a case of criminal negligence causing the death of a newborn baby, where the motherfailed to protect her infant from the violence of her spouse, who stabbed the baby to death. The judge took into account a certaindisability on the part of the accused and the violence of her spouse, of whom she was afraid. She was sentenced to thirty months'imprisonment.[28] [67] In R. v. J.F.,[29] the Ontario Superior Court of Justice sentenced a father convicted of endangering the security of a child and forignoring this risk to two years less one day.

On appeal from the jury's verdict, however, the Supreme Court of Canada acquitted theaccused. Therefore, this sentence does no more than illustrate how broadly sentences may vary depending on the facts of a given case. [68] In cases of assault with a weapon or assault causing bodily injury to a child, sentences range from conditional sentences toprovincial prison sentences of generally less than a year. The Court of Appeal of Quebec has analyzed numerous judgments. In S.B. v.R.[30] the Court of Appeal of Quebec states that the type of mistreatment suffered by the victim must be determined.

Gilbert J., whomthe Court of Appeal cites with approval, refers to three distinct types of child abuse: (1) cases involving the application of force with theexpectation of causing injury of indifference to it (R. v. Laberge (1995) 1995 ABCA 196 , 27 W.C.B. (2d) 176; (2) casesinvolving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper anddid not fully appreciate the serious injuries which might result (R. v.

Marks (1994) 24 W.C.B. (2d) 606); (3) cases involving diminishedresponsibility through mental disorder where the abnormal mental condition of the accused requires that treatment of the offender begiven priority over the principles of general and individual deterrence (R. v. Hiltermann (1993) (AB CA), 141 A.R.223); R. v. Just, [1993] AJ no 931). [69] In R. v. Harris, the Alberta Court of Appeal substituted a suspended sentence with probation with nine months' imprisonment fora father who had struck his nine-year-old daughter on the buttocks five to six times with a belt, causing scabs and abrasions.

The Court ofAppeal of Alberta also noted that the objective of denunciation seeks on the one hand to dissuade potential offenders, and on the other toreinforce the confidence and morals of those who obey the law (R. v. Wharry, 2008 Carswell Alta 1143). [70] In S.B. v. R.,[31] the Court of Appeal imposed a sentence of three months instead of eight months for administering a hard slap tothe buttocks of the accused's five-year-old son that did not cause bodily harm to the child, who suffered from bedwetting. The action wasan excess of discipline against a vulnerable child.

The Court of Appeal rendered a judgment supported by sentences imposed for assaultagainst children.[32] [71] Children are our future, and nothing horrifies general society more than violent behaviour against children. And what can be saidof excessively violent behaviour against children in our society. It is also the courts' responsibility to denounce it.

Children are entitled tothe protection of their parents or of those into whose care they are entrusted. [72] In Proulx,[33] the Honourable Chief Justice Antonio Lamer noted that "This Court has held on a number of occasions thatsentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence. The rationalebehind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentencemust be proportional to the gravity of the offence and the degree of responsibility of the offender.

Proportionality requires anexamination of the specific circumstances of both the offender and the offence so that the 'punishment fits the crime'". [73] Moreover, the imperatives of personal and societal deterrence, denunciation, and the protection of society must be prioritizedwhen the life of a child has been sacrificed, when that child's fate is left in the hands of a person who encouraged and exercised brutalityagainst this man's child, when a parent breaches his duties and betrays the trust that this child and society as a whole places in this parent.The trust in this parent was betrayed first when the parent subjected the child to repeated physical abuse, including when requested by hisspouse, and second when he abandoned the child to his fate by leaving him in the care of a person who had exhibited great violence and

a lack of consideration for this small, vulnerable, and weak little life. [ 74 ] A penitentiary sentence is in order. The PROSECUTION submits that it should be less than five years and greater than two years, and that five years would be a fit sentence. [ 75 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The moral blameworthiness of the accused is all the greater because he committed assault with a weapon and assault causing bodily harm against this child.

The accused's moral blameworthiness is high for not displaying any concern for the fate of his child and for entrusting him to his spouse, even though he was aware of her violence toward the child and of the fact that she encouraged physical violence against the boy. [ 76 ] Nevertheless, the determination of an individualized sentence that is denunciatory and dissuasive on both a personal and societal level, but also promotes rehabilitation and a sense of responsibility for the wrongs done to the victim and society, is a delicate exercise.

A sentence must express, to the proper degree and with appropriate firmness, the importance of the protection from which every child must benefit, thus contributing to the affirmation of the broad values that our justice system must serve and reaffirming the basic vigilance that every parent and guardian must have toward every child and society as a whole. [ 77 ] The principle of the overall sentence is also a consideration here.

Inasmuch as it has been proved that the overlapping and successive violence was committed by the accused upon the encouragement and advice of his spouse, even though it was ultimately his responsibility to refrain from acting in a violent and criminal manner with his son, and that the accused is responsible for a gross fault for leaving his son in the hands of his violent spouse who advocated the use of violence giving rise to a fear for this child's life and integrity, a global and concurrent sentence is in order. [ 78 ] A sentence of a total of two years to be served, taking into account time served in pre-sentence custody, even benefiting the accused by adding a probationary period, seems insufficient.

This accused has more to deal with than his grief. He has a number of issues to settle and a dependence problem to treat. [ 79 ] Society must also understand that the mistreatment of children will be discouraged and punished. The sentence must denounce arbitrary violence against children and criminally negligent behaviour causing their death, and dissuade the accused and society as a whole from engaging in any such behaviour. Nothing can compensate for the loss of a child. A prison sentence is not a measuring rod determining the value of a child's life. Nor is vengeance good counsel.

Many here are crying for the loss of this child. [ 80 ] The sentence must be sufficiently deterrent when a child's life has been sacrificed through the direct violence of the accused and the abandonment of the child to the worse violence of the spouse, who encouraged such violence and applied it arbitrarily, without regard to the dignity or the right to life and integrity of this child. [ 81 ] Violence in the lives of children handicaps their ability to be and to love.

Sadly, this child paid with his life for the trust he had in his father that he would not be mistreated, beaten, or left in the hands of someone with no regard for his right to life, health, freedom, and dignity. [ 82 ] With respect to assault causing bodily harm and assault, given the nature of the assaults with a weapon (with belt and wooden spatula), given the bodily harm that has moreover been acknowledged, and taking into consideration the case law in this area, a sentence of sixteen months in prison as of today's date appears to be appropriate. [ 83 ] With respect to the criminal negligence displayed by the accused through his wanton and reckless disregard toward this child, a sentence of fifty months in prison appears to be appropriate. [ 84 ] The Court must also give credit for the accused's pre-sentence custody beginning on October 14, 2014.

Four months have passed since he was placed in pre-sentence custody. This time will be given credit on a one-to-one basis, as the Court ended his recognizance during the course of the sentence.

FOR THESE REASONS; The sentences are as follows: Whereas a sentence of 50 months is appropriate for the offence of criminal negligence causing the death of JÉRÉMY BASTIEN; Whereas a sentence of 16 months is appropriate for assault causing bodily harm and assault with a weapon in counts 3 and 4; Whereas the accused has been in detention for 4 months; On the count of criminal negligence, the Court sentences the accused to 46 months of incarceration as of today's date; On the count of assault causing bodily harm and with a weapon, the Court sentences the accused to one year of incarceration as of today's date; Pursuant to

section 109 of the Criminal Code , on each of the counts, the Court prohibits the accused from possessing a firearm, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance as of the date of this judgment and for a period of ten years. The Court orders, on each of the counts, the taking of samples of bodily substances for the purpose of forensic DNA analysis, pursuant to subsection 487.051(3) of the Criminal Code . Without victim surcharge.

__________________________________ LOUIS A. LEGAULT, J.C.Q. Mtre Michel Pennou For the prosecution Mtre Charles Montpetit For the defence Date of hearing: January 22, 2015