r v. TIMOTHY HILMER, 2018 QCCQ 6520

R. c. Hilmer 2018 QCCQ 6520 JD 2570 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF SAINT-FRANÇOIS CITY OF SHERBROOKE « Criminal and Penal Division » N o : 450-01-099980-166 DATE : August 20, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE PAUL DUNNIGAN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. TIMOTHY HILMER Defendant ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] Mr.

Hilmer has pleaded guilty to a charge of assault causing bodily harm to X, a 4 year old child, thereby committing an offence punishable on

summary conviction pursuant to s. 267 (

b) of the Criminal Code . OBJECTIVE GRAVITY [ 2 ] The Criminal Code provides a maximum sentence of 18 months of imprisonment for this offence which is an indication of its objective gravity that applies here for the defendant. In somewhat similar circumstances, the Court of appeal noted that, when an accused is charged with the indictable offence under the same

section of the Criminal Code , the objective gravity is very important since it is punishable by imprisonment up to 10 years [1] . This was not the choice made by the Crown in this case.

POSITION OF THE PARTIES [ 3 ] The prosecution pleads that this Court should suspend the passing of the sentence and direct that the offender be released on the conditions of a probation order including the performance of 240 hours of community service. [ 4 ] Counsel for the defence suggests that the interests of justice would best be served by an order directing the defendant, instead of being convicted, be discharged on the same conditions as requested by the prosecution. Defence pleads that reparation for the community, denunciation of this unlawful conduct and education would be reached without Mr.

Hilmer having a criminal record considering his specific situation. CONTEXT [ 5 ] The words of the defendant’s father in a letter dated May 22, 2017 give of a good indication of the context leading to the offence : Tim entered [X] and his brother’s lives as full-time babysitter at a very difficult moment – shortly after the suicide of their father [in August 2015]. He felt that he could make up somewhat for their loss and he did many things for them including planning various fun activities.

Tim was responsible for getting the boys to school, picking them up from school, preparing meals, cleaning the house, and getting the boys to bed. (…) Often, he worked six days per week and was with one or more of the boys for 60+ hours. [The victim’s mother] had complete trust in Tim. This was evidenced by the fact that on several occasions she left him in charge of the boys for several days while she was on out-of-town business trips.

The incident occurred during one of these trips. (…) In addition to the fact that the boys had recently lost their father and their mother was working long hours to provide for the family, [Y], the oldest, has been diagnosed with autism. He takes medication daily and has an educational specialist hired by the family who is present with him throughout the school day. [Z], aged five at the time, could also be challenging, and [the victim] was only four years old.

An experienced parent or sitter would find the situation to be trying, much less a young man who had just turned nineteen. (…) [ 6 ] The offence was committed on June 14, 2016. At the time of breakfast, X did not want to eat his mangos and the defendant did

not want to run late as he had to bring him to daycare. [ 7 ] Because he felt X had to be taught to obey and behave, the defendant decided to use a spatula and hit him numerous times on the buttocks. [ 8 ] Z, one of the victim’s brother, who was not much older, was a witness to the spanking. [ 9 ] Later the same day, at the nursery, a caretaker noticed the bruises caused by the aforementioned assault. [ 10 ] The victim’s mother was then reached and the circumstances of the bruises became known. [ 11 ] In her statement to the police, she mentioned that when the defendant arrived later at her home the same day and saw the result of his assault, he was surprised. [ 12 ] The defendant’s father mentions that in the aftermath of the situation, his son was devastated.

After realizing what had happened, he did not come home and spent that night outside, embarrassed and saddened that he had « hurt his kid »; for weeks, he was disconsolate. [ 13 ] A photograph shows the severity of the contusion that is admitted to constitute bodily harm, as it is evident. THE OFFENDER [ 14 ] Mr. Hilmer is now 21 years old. He was born in Indianapolis and moved with his family in the province of Quebec at a very early age.

He has a permanent resident status and is waiting the outcome of this case before making his application for citizenship. [ 15 ] His father is a Baptist pastor who has cofounded churches in the vicinities of Drummondville and Sherbrooke after he arrived in Canada. [ 16 ] The defendant was homeschooled. He has been admitted to the Ambassador Baptist College in North Carolina and receives formal education and training to become a Baptist missionary.

It is a 4 year program that he undertook in September 2016. [ 17 ] When he is not at school, the defendant lives with his parents; he has no criminal records. [ 18 ] A presentence report has been prepared noting that for all his life, he has lived under the aegis of his family or members of the Baptist Church without much interactions with people of other beliefs or religions. [ 19 ] In the culture of his family, physical correction of children such as spanking with a stick on the buttocks was practised as often as the parents thought it should be imposed until the age of 17. [ 20 ] The defendant testifies that : (…) looking back, what I think I realize I did, was the fact that all through my life, (…) that’s one of the main things that was used in my discipline, and so when I used it on [X] the first time, I expected it to work and when it didn’t, I didn’t know what else to do because all throughout by life, (…) it always worked, why isn’t this working (…). [In my family], the main form of discipline was physical discipline.

It always worked for us, because one or two spankings (…) was enough for us and when it wasn’t for [X], I just didn’t know what else to do. I believe that was my mentality and I had just assumed it would work. [ 21 ] The defendant has had summer jobs including babysitting children of families attending the same church who he thought shared the same beliefs and had common values.

He was working for a hardware store as of June of 2017. [ 22 ] The probation officer is of the opinion that the defendant is shameful and repentant, that he did not want to hurt the child but only to instill obedience. [ 23 ] It is however noted that, at the time of the report, Mr. Hilmer was lacking introspection and had a limited reference scheme.

His experiences and knowledge pertaining to psychology, emotions management, parental competence and conflict resolutions were incomplete. [ 24 ] The probation officer could not exclude the possibility of recidivism because of signs of immaturity, cognitive rigidity, hermetic education and lack of judgment. [ 25 ] Her conclusion is for the necessity, for the defendant, of hindsight and of a reflexion process aimed at the conciliation of his religious beliefs with our basic societal values. [ 26 ] It was only at his sentence hearing that both him and his father learned that under canadian law, and following the Supreme Court decision in Canadian Foundation for Children [2] , the use of objects for corporal punishment is illegal since it exceeds what is reasonable pursuant to s. 43 of the Criminal Code . [ 27 ] The defendant filed a letter that he has drafted after reading the pre-sentence report.

He has testified about his new mindset. [ 28 ] This court is relieved to read and hear that he agrees with the probation officer’s assessment that his cultural experience is very one-sided and that his inexperience and poor judgment resulted in a very sad situation that is in no culture, acceptable. [ 29 ] The defendant also testified that he has followed the officer’s advice to read books on the discipline of children. [ 30 ] He is now of the opinion that « often, discipline can be very counterproductive especially when the discipline is physical ».

[ 31 ] He writes that he understands that his use of force was excessive, that if he ever does return to regular babysitting, never again will he use physical discipline as it is ineffective and because the possibility of hurting a child is too great. [ 32 ] The father of the defendant is very proud of him.

He does not deny or condone the assault on X. [ 33 ] He feels that his son, the defendant, was very dedicated towards X’s family but that the responsibilities he took were beyond his capabilities at that time. [ 34 ] Since then, his son appears to have matured and knows that he should not remain in a situation that he is not prepared for. [ 35 ] The fact that the defendant was arrested at the airport coming back from his school for Christmas, six months after the assault, had a very deterrent effect because neither he or his parents had been informed of the existence of a warrant for his arrest that had been issued just a few days before. [ 36 ] The father also testified about his son’s project of becoming a missionary or taking church ministry after his four year education in North Carolina.

Both this program and the missions and job prospects would obviously involve border crossings. He feels that for the defendant to have a criminal record would at the very least, place an enormous roadblock in his path. [ 37 ] This court would have preferred to hear about it directly from the defendant and noted that when he was asked about his availability for this judgment, it was his father that answered instead of him. [ 38 ] There appears to be a very important influence of the father on the defendant; maybe too important if not overbearing.

THE VICTIM IMPACT STATEMENT [ 39 ] X’s mother has filed a victim impact statement pointing, among other things, to repercussions on Z who was a witness to the assault. [ 40 ] She mentions that the defendant was a father figure to Z. Because of what he saw and following the absence of the defendant in his life, he is showing signs of aggressiveness and depression for which he needs professional help. [ 41 ] As for the victim, his mother mentions that it may be too early to see long-term repercussions but she has noticed signs of problematic behaviours relating to eating. [ 42 ] The victim’s mother feels betrayed.

The consequences of the assault for her and her sons combined with their grief following the death of the father ten months earlier are significant. [ 43 ] She writes that the defendant should never be responsible for a group of youngsters or take care of children. LEGAL PRINCIPLES AND CASE LAW [ 44 ]

Section 718 of the Criminal Code states the purpose and principles of sentencing; the fundamental purpose being to protect society and to contribute, along with other crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing 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;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 45 ] The Criminal Code also provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances ( s. 718.2 a)) and be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( s. 718.2 b)). The sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender ( s. 718.1 ). [ 46 ] In R . v.

M.(C.A.) [3] , Lamer C.J.C. stated that : [77] It has been recognized by [the Supreme Court] that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. (…) (…) [79] Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. (…) (…)

[81] (…) In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. (…) In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [82] (…) In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. (…) [91] (…) The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. (…) [ 47 ] The Supreme Court has also provided guidance as to sentencing principles in Nasogaluak [4] : [39] (…) Judges are now directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safe society".

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition: the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. (…) [ 48 ] More recently in Lacasse [5] , the Supreme Court mentioned that : [3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders.

A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives. (…) [53] (…) Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Individualization and parity of sentences must be reconciled for a sentence to be proportionate: (…) (…) [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. (…) [ 49 ] In Berish [6] , the Court of appeal stated that « even in the case of more serious offences, discharge is available » when there is no legal restrictions, namely a minimum punishment prescribed by law or an offence punishable by imprisonment for 14 years or for life as mentioned at s. 730 of the Criminal Code . [ 50 ] In this decision, the Court mentions that « at eighteen or twenty years of age, the future remains wide open.

The impediment of a conviction could eventually become quite heavy, even if it cannot be determined as precisely today as it could be with an older offender ». [ 51 ] The Court adds that « it is the duty of trial judges to ferret out those cases amongst the many heard every day where a discharge would benefit society [and that] experience teaches judges to recognize these cases, which are quite rare when all is said and done ». [ 52 ] Here, like in Berish and even more so, it should be pointed out, from the outset, that the positions of the prosecution and the defence are not that far apart. [ 53 ] Both suggestions « involve the acknowledgement that the accused seems to have learned the error of his ways and that the safety of the public will not be at risk if the accused is not confined to prison » [7] . [ 54 ] Pursuant to s. 730 of the Criminal Code , a discharge may only be considered if it is shown to be in the best interests of the accused and not contrary to the public interest. [ 55 ] The fact that a discharge would be in the best interests of the defendant is not in dispute.

The Crown pleads however that it would be contrary to the public interest because in such matters and circumstances, the need for denunciation and deterrence is particularly pressing and would not be met by a conditional discharge; it may send the « wrong message ». [ 56 ] Like in R. v. M.M. [8] , it may be pointed out that the responsibility of this court in sentencing is not solely to « send messages »

but to impose a just and appropriate sentence. In this decision, the accused had hit her 10 year old son numerous times with a belt; marks following this assault were visible hours later. [ 57 ] Justice Fraser Martin then said that the accused had tried to make him understand that in her community, the use of a belt as a tool for discipline was often used, which explanation was unacceptable for him.

He added that in the diversity of beliefs and communities in Canada, it was his hope that we had evolved for the best from what was once tolerated by our ancestors. [ 58 ] Justice Martin then discharged the accused with the only condition of meeting with a probation officer. [ 59 ] In S.B. v.

R. [9] , a father had been sentenced to eight months of imprisonment for spanking his five year old with his hand, after being found guilty of the indictable offence of assault causing bodily harm. [ 60 ] The Court of appeal first mentioned the necessity for individualization of sentences and agreed with the reasoning of the provincial court of Alberta in R. v.

Evans [10] stating that « the authorities seem to indicate that physical child abuse cases generally fall into three distinct types » that warrant more or less severe punishment. [ 61 ] Distinguishing the gravity of offences in the case law, the court granted the appeal and sentenced the accused to 38 days which had already been served and added to the probation order, the conditions of compulsory therapy if required by the probation officer. [ 62 ] A year later, in R. v.

D.B. [11] , the same court had to decide as to the fitness of a sentence of 90 days with probation ordering 240 hours of community service that had been imposed to a father that had caused bodily harm to his 6 week old baby, fracturing her femur and bruising her face by violently grabbing her by the jaw and a leg to make her stop crying. [ 63 ] The Crown was of the opinion that the provincial judge had misapplied the categorization mentioned in Evans . [ 64 ] The Court of appeal then rejected this approach citing the Alberta Court of appeal in R. v.

Nickel [12] where it is deemed more relevant to first assess the moral culpability of the actus reus and the nature of the harm experienced by the child, then to determine the level of culpability arising from the mens rea by evaluating the extent to which the harm was foreseeable and finally to take into account whether the conduct involved other factors such as the use of a weapon or confinement or those referenced in s. 718.2 (a) (ii.1) of the Criminal Code . [ 65 ] The result of these guidelines and the consideration of aggravating and mitigating factors for sentencing purposes is that the decision can conclude as to the moral culpability on a case by case basis. [ 66 ] In R. v.

D.B . [13] , the court dismisses the appeal and mentions that its decision in S.B. v. R. [14] was not really the imposition of 38 days of prison but the obvious finding that this time had already been served and that it was enough. [ 67 ] In Harbour v. R. [15] , the court points out that in accordance with s. 730(4) of the Criminal Code , a conditional discharge can be revoked in certain circumstances as it is the case with conditional sentences to be served in the community and refers to R. v. Meneses [16] in writing that: 12 .

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

If the terms are not met she may be brought back and sentenced for the offence, and a conviction will be recorded against her. [ 68 ] As in Berish [17] the Court of appeal reiterates that s. 730 of the Criminal Code , excludes no crimes other than those with a minimum punishment prescribed by law or offences punishable by imprisonment for 14 years or for life and that such measure should not be considered as exceptional adding that if it would be otherwise, courts would create exclusion where law does not with the risk that sentences would only be answers to crimes rather than sentences that are just and proportionate to the offence and to the offender. [ 69 ] Also mentioned is the fact that discharges have been granted even for crimes inherently more serious where denounciation and deterrence are usually given primary consideration.

TAKING IN ACCOUNT RELEVANT AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 70 ] As for mitigating circumstances, it is relevant to take in account the fact that : - Mr.

Hilmer has no prior convictions of any kind; - he has pleaded guilty and has shown genuine remorse and shame for what he has done; - he followed the probation officer’s advice to read about children discipline and appears to have a new outlook on this subject considering what he was taught all his life by his father and community. [ 71 ] The following circumstances are taken in account as aggravating : - the importance of the bodily harm resulting from the assault that was committed in front of the victim’s brother and the repercussions for him and his family; - the offence involves the abuse of a person under the age of 18 years ( s. 718.01 of the Criminal Code ); - the offender, in committing the offence, abused a person under the age of 18 years ( s. 718.2 (ii.1) of the Criminal Code ) while he was in a position of trust in relation to the victim ( s. 718.2 (iii) of the Criminal Code );

- the vulnerability of the victim. [ 72 ] Weighting all relevant factors and considering the above-mentioned purpose of sentencing and its objectives, this court concludes that for the defendant to be conditionally discharged would be in his best interests and not contrary to the public interests.

DECISION [ 73 ] As an individualized sentence reflecting the defendant’s situation, for the necessity to denounce his conduct, to deter the offender and other persons from committing such offence but also to assist in his rehabilitation and promote his sense of responsibility and acknowledgment of the harm done to the victim, it is ordered that Mr.

Hilmer be discharged on the following conditions that shall apply for a term of three years. • Abstain from communicating directly or indirectly with X or members of his immediate family. • Abstain from going at any place where X or members of his immediate family may reside. • Keep the peace and be of good behaviour. • Appear before the Court when required to do so by the Court. • Notify the probation officer in advance of any change of name or address and promptly notify the probation officer of any change of employment or occupation. • Report to a probation officer within 3 working days after the coming into force of the probation order and thereafter, when required by the probation officer and in the manner directed by the probation officer for the first 18 months of the probation. • Follow all of the probation officer’s instructions including to undergo therapy or have counselling. • Not be in the physical presence of X or members of his immediate family. • Perform 240 hours of community service within 18 months, and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer.

Such community service shall not be performed for the benefit of or be supervised by any church related organization. • Pay 500 $ to Fondation du Centre Jeunesse de l’Estrie within 6 months through the office of this Court. - Mr.

Hilmer shall also appear at the Sherbrooke police station located at 575 Maurice Houle Street in Sherbrooke on a Wednesday between 13 h and 14 h within 60 days, for the purpose of the taking of bodily substances by means of the investigative procedures set out in subs. 487.06 (1) of the Criminal Code . - As for the statement of X’s mother seeking restitution pursuant to s. 737.1 (4) of the Criminal Code , this Court shall not make such an order because the amounts are not readily ascertainable. __________________________________ PAUL DUNNIGAN, J.C.Q. M e Geneviève Crépeau Attorney for the Prosecutor M e Thomas W.

Walsh Attorney for the Defendant