R. v. C.A., 2012 ONCJ 587

Citation: R. v. C.A. , 2012 ONCJ 587 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — C.A. & J.M. Before Justice Dianne M. Nicholas Reasons for Judgment released on September 21, 2012 Ms. Lia Bramwell ....................................................................................................... for the Crown Mr. Cedric Nahum ............................................................................................ for the accused C.A. Mr. Michael Spratt ............................................................................................. for the accused J.M.

NICHOLAS J.: [ 1 ] This is a sentencing hearing for C.A. and J.M. who have been convicted by me after a very lengthy trial. The Reasons for Judgment as well as written pleadings are bound and filed with the Information. I ordered a pre-sentence report, given the extremely serious abuse inflicted on a young boy with a potential life threatening illness called sickle cell anaemia which is known to occur with some young males. I ordered a pre-sentence report for each accused and requested some update on the complainant T. in terms of residence and schooling.

I was very interested in an update with respect to his mom C.A., including an update or progress report in terms of counselling and or insight into the harm done, some indication from CAS as to progress in the relationship between mom and son, as well as the CAS view of the current parent /child relationship between the two. To say the least I am disappointed in what I have heard. The accused have each been convicted of assault with a weapon (s. 267(a)), as well as assault causing bodily harm (s. 267(b)).

There are 4 counts against C.A. and two against J.M.. [ 2 ] The Pre-sentence report for C.A., age 28, has been filed. She describes the challenges of raising a child with a serious blood disorder. T., as the judgment describes in detail, has been hospitalized a significant number of times, he requires blood transfusions regularly, and has had hip surgery as a result of his condition. The charges against C.A. involved repeated whipping of her son with a belt, primarily when he would wet the bed at night. J.M. is convicted of whipping him on one occasion where his mother counted slowly out to ten.

This cause a significant scar near the inner elbow area. The evidence of numerous wounds on his back, and the large scar near the inner elbow were still significant at trial about a year after the event. Defence counsel has now produced a photo which is meant to suggest that those scars are no longer visible. In my view there is no proper foundation for that conclusion. The skin colour is several shades lighter than his, and there was use of a flash which distorts the view of flash.

CAS staff testified at the sentencing hearing and were not asked any questions in regard to his scars. [ 3 ] There still appear to be two profiles to C.A.. In the report she speaks positively about her son, denying that he posed any serious behavioural problem, but acknowledging problems with bedwetting. Despite being a single mother of this child and providing no explanation for the shocking evidence of abuse on his body, she still denies having abused him. There is a complete absence of remorse.

She has painted herself, and medical personnel have agreed, that she managed every aspect of his medical care and did not hesitate to challenge the opinions of doctors and nurses. She is very knowledgeable about his condition and supervised it very carefully. The Pre- Sentence Report describes her as guarded, only answering questions and providing little elaboration in terms of collateral contacts. She refused to sign a release to permit the writer to contact CAS. This is a recurring pattern. Even at the sentencing stage, her counsel clearly attempted to diffuse blame from her.

There is a loss of the mitigation factor that might attach to evidence of remorse and rehabilitation efforts. To the extent she has participated in any, in my view it was not in a genuine effort to change. [ 4 ] At page 5, she accepts no responsibility for her actions. CAS describes her as combative, hostile and demanding. During visits with her son, she is being described as critical of him and has made him cry. CAS has testified at this sentencing hearing and has provided information through his current foster mom that T. is an articulate, happy boy doing well in school and doing very well in his new home.

He certainly presented in that way during his testimony. It is shocking to me that, having been convicted of these serious offences and facing a jail sentence, I know learn that, due to her behaviour, her access to her son had been decreased initially and then suspended. She later stopped attending supervised visits. She did follow through on some parenting courses. She refused to participate in a Family Court Clinic Assessment. [ 5 ] She describes her relationship with the accused as having ended, that may or may not be true. She denies they ever lived together.

I do not agree, as all the evidence points to that being the fact. C.A. continues, even at this stage, to be manipulative and deceptive. The evidence of her dealings with CAS was extremely disappointing to me. She still lacks candour and credibility in my view. She no longer has a relationship with her mother, who reported the abuse, nor with her sister called by the Crown to testify. She has

virtually no employment history save for experience with a musical group many years ago. She is and has been socially assisted for almost all of her adult life. [ 6 ] The Pre-Sentence Report for J.M. is more positive. He is described as social and benefits from pro-social family and friends growing up. He was in a previous rocky domestic relationship for which an allegation of domestic abuse was made. He appears to have had various jobs. As an aggravating factor, he has a previous conviction for a domestic assault for which he was on probation when he whipped and injured T..

As with C.A., his level of cooperation with the writer of the report was mixed. He views himself as a victim of circumstance. I have no doubt whatsoever that C.A. was the directing mind in the repeated mistreatment of her son. Admittedly, the victim spoke in friendly terms of J.M. and described the fun they had together. The evidence disclosed that he was acting at the direction of C.A. when he whipped T.. That injury was never treated by medical personnel and a false tale of him falling into bushes off a bike was made. This mother, it must be remembered, scrutinized ever medical procedure he was subjected to.

For her not have an injury ,which had clearly bled and would have required stitches due to the size of it, be examined to by his team of doctors, points to her lack of insight or remorse and her unflinching view of herself as a caring and involved parent. J.M. has "started' participating in counselling to deal with violence against children and his parenting skills. Clearly this only commenced after the conviction.

The writer of the report concludes that his risk to re-offend is still present, but believes a sentence in the community could be considered because of his pro- social values, ability for introspection and willingness to abide by supervision conditions. [ 7 ] I have received a Victim Impact statement from the victim. In describing how he felt about what happened to him he wrote " I felt scared, disappointed and in pain. I was very sad. I was in pain because I had cuts and bruises. I was afraid I might get hit again”.

He then drew a picture of himself in the darkened storage area with a sad face, and in the other end a picture of the two accused holding hands and smiling. There is no doubt that T. loved his mom very much and basically told us so, despite the fact that he had lived through "a wrong that had to be corrected". He is an articulate, intelligent and endearing child wise beyond his years in terms of his medical situation. Only his own mother has painted him in a negative light. [ 8 ] At the sentencing hearing a CAS representative testified. T. has been happily living in a foster home for about a year.

He is very happy in his placement and doing very well in school, he is also involved in Beavers. He appears to be doing much better medically. The bedwetting, at this point, only occurs before or after visits with mom. Mom was able to have access once a week for 1.5 hours. Apparently she no longer resides in Ottawa, and has advised that she is not available for visits for two weeks out of every month. She will not provide and address and therefore does not receive updates on her son. At times, due to her behaviour, CAS has not allowed her to see her son.

This is hardly the kind of information that one would expect to hear about her at the sentencing hearing. I conclude that she completely lacks insight into her abusive behaviour. At present, she is incapable of meaningfully participating in any counselling or rehabilitation, and puts her life ahead of her son's needs to this day. She requires specific deterrence. At present CAS is of the view that contact with her is not in T.’s best interest. This is very sad as he does love her.

During cross-examination of the CAS witness, Defence continued to question the care he was receiving, and to point out that he had has medical issues since being in care as well. A large number of support letters were provided on behalf of C.A.. They are helpful to the extent that medical staff view her as very involved and advocating for his care. [ 9 ] The Crown seeks a period of incarceration of 12 months and Defence asks for a suspended sentence and probation for 3 years or, in the alternative, 2 months custody for C.A.. She is 28 and has no record. There is the absence of a plea or any admission of remorse.

She has no insight whatsoever into the repeated and serious abuse inflicted on her only child, who is afflicted with a very serious life threatening injury. Her abuse left a large number of scars on his back. She was the directing mind in the infliction of the serious injury and scarring of his inner arm. [ 10 ] She has abided by her bail conditions apparently, although she has advised CAS that she is not in the city for two weeks out of every month, and refused to provide them with a mailing address. She has attempted to portray herself in a positive light through the reference letters submitted by her.

These stand in stark contrast to the shockingly negative attitude she has displayed towards her son and CAS. There is no doubt in my mind that she blames him and not herself what has happened. I conclude that she has not been rehabilitated and is perhaps incapable of insight into her own behaviour. She has made a very negative impression on the Court as well as CAS. Her son still describes his relationship with her as positive. Of course he wants to love his mother and have her love him.

Her address to the Court that she loves her son and wants him back with her stands in stark contrast to the impression she made to both CAS and Probation. [ 11 ] I do acknowledge that she was a single mom dealing with a very sick child. I do however agree with Crown that to put this child in charge of administering his own meds and the whole bed changing routine, which has been described at length, paints her as a rather negligent mother. Bedwetting is a common occurrence with sickle cell patients because of the large amount of water they must drink.

I still cannot comprehend how a parent, who very much took on a role of supervision of every action of his medical team took, and who often was critical of the care and making her own suggestions, would put him in charge of taking his own meds and the whole changing the bed routine and then whip him when he wet the bed . [ 12 ] With respect to J.M., Crown seeks a period of 9 months custody in addition to 9 days of pre trial custody and a period of probation. Defence advocates for a community based sentence and, in the alternative, a jail sentence in the intermittent range.

I agree that he should receive a lesser sentence. He has a previous conviction for assault in a domestic situation and was on probation when he committed the abuse on T.. In my view, a conditional sentence of imprisonment is not appropriate. I do not reach that conclusion because I believe he is at risk of re-offending during the community based sentence. His prospects for rehabilitation are far more positive than for C.A. in my view. His mother was present at the hearing and is supportive. I agree that he played a lesser role in the abuse and should receive a lighter sentence.

Nonetheless, the aggravating factor is that he was on probation for a domestic assault, significantly abused T. and left a visible and possibly permanent large scar on his arm, visible to all whenever he will wear short sleeves. Both he and C.A., it must be repeated, where in a position of trust towards the victim and he was extremely vulnerable. This abuse has changed his life forever and him mom, through her complete lack of remorse or insight and her tendency to still blame T. and criticize him for his involvement with police and the statements he has made, has changed the path of his young life.

The love she professes for him, even at sentencing, is belied by her behaviour towards him as witnessed by CAS personnel. [ 13 ] I have reviewed the cases submitted and rely on the decision in R. v. H. G. [2005] O.J. No. 1954 in which the Ontario

Court of Appeal affirmed the paramount principles of deterrence and denunciation in a situation where a request for a conditional sentence was denied. I have reviewed the cases in which non custodial sentences have been imposed. In my view the absence of any mitigating factors for C.A., save and except for the lack of a record. For J.M. there is the aggravating factor of the existence of a previous record for assault, combined with significant abuse inflicted while on probation.

These factors are such that non custodial sentences for these offenders, I conclude, would neither adequately reflect the significant abuse inflicted by persons in position of great trust given his medical vulnerability, when neither has expressed remorse. Probation is of the view that J.M.'s risk to re-offend is still present. [ 14 ] I find myself ad idem with the carefully crafted reasons of Justice Bellefontaine of this Court in R. v. Keddy , Ontario Court of Justice Court File No. 2811998 delivered on February 7, 2012.

Having reviewed many relevant cases, Bellefontaine J. concluded that even though he found that the offender did not present a risk to re-offend, a conditional sentence could not be fashioned that would meet the need for general deterrence and denunciation. In the case of C.A. I am strongly of the view that personal deterrence is required as well. The abuse inflicted is significant rather than marginal and C.A. has not demonstrated that she has “reduced her personal culpability through personal change” as referred to by Bellefontaine J. the Keddy case in which the child was also at the mercy of his parents.

I accept in its entirety the submission of Crown counsel who has correctly reviewed the aggravating and mitigating factors, including acknowledging, in a heartfelt way, the fact that C.A. faced a significant and perhaps overwhelming situation with her son and may just have snapped. I am also considerate of that fact, however, the abuse here was ritualistic, severe and traumatic for a young very sick boy who only has his mom and loved her dearly to this day. This case would shock the community. [ 15 ] For C.A., the sentence imposed is one of 9 months as in Keddy .

I impose this, as opposed to the 12 months sought by Crown, only for the reason that she has no previous record. For J.M. the sentence imposed is one of 5 months due to the injury and scarring inflicted, the previous conviction, and the fact that this offence occurred while on probation. J.M. will serve a probation period of two years, for C.A. it will be a 3 year term. Each will provide a sample of their DNA and be the subject of a s 109 weapons prohibition for 10 years. With respect to C.A. regular reporting is recommended.

At the request of Crown counsel, I also made a s.743.21 prohibiting C.A. from contact with the victim during her period of incarceration. Released: September 21, 2012 _______________________________ The Honourable Justice D. Nicholas a