2015 QCCQ 5101, 2015 QCCQ 5101

R. c. Y.F. 2015 QCCQ 5101 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF SENNETERRE "Criminal and Penal Division" N° : 625-01-003234-137 DATE: June 1, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE MICHEL BABIN, J.C.Q. ______________________________________________________________________ The Queen Prosecutrix v. Y. F.

Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleaded guilty to charges of aggravated assault against her son, who was two years and two months old at the time. The incident occurred on August 14, 2012, in Senneterre, Abitibi. [ 2 ] The prosecution suggests a sentence of five years’ detention.

The defence suggests instead that a sentence of twelve to eighteen months with probation be imposed. [ 3 ] This indictable offence is punishable by a fourteen-year term of imprisonment. The facts [ 4 ] This is a case of shaken-baby syndrome. The mother was alone with the child, who was crying. She lost patience and shook him. [ 5 ] The next day, the child’s condition had deteriorated so she brought him to the local hospital. The accused, however, did not reveal the cause of the child’s injuries. The child was transported to Sainte-Justine hospital in Montreal.

After various exams, the child was found to be suffering from shaken-baby syndrome. A police investigation was initiated. [ 6 ] The sequelae of this assault on the child are significant and permanent. [ 7 ] With respect to physical mobility, he can barely move about normally. His left limbs do not react as they should. He walks with a limp. When he was evaluated in 2014, he was unable to go up or down stairs safely. He needs help to sit in his chair.

This is an excerpt from page 6 of the occupational therapy assessment report dated July 30, 2014: [ translation ] The child presents with significant developmental delays in his life habits for his age.

He needs help with all of his life habits: dressing (he can undress but not on request, needs help to dress); toilet-training (X wears diapers; he is not toilet-trained and does not currently display the skills needed to acquire the ability); eating and drinking (he eats with his hands, pieces must be handed him one at a time); hygiene (he does not participate in his personal hygiene); play (his interest in games with lights and sounds is engaged for only a few minutes); movement (he walks unaided but needs help to sit on his ergonomic chair, climb into the bath or onto his bed, and climb the stairs).

The significant developmental delays in his life habits are related to the following issues: severe to profound mental retardation (according to the neuropsychology report prepared by Mélanie Bernier) and unilateral spatial neglect and hemiparesis of the left hemicorpus; decreased strength and voluntary mobility of the upper left limb; decreased strength and range of motion of the lower left limb; communication difficulties; sensory characteristics mainly oral and touch. [ 8 ] Regarding neuropsychological issues, an excerpt of the conclusions of the report prepared by neuropsychologist Mélanie Bernier, dated April 23, 2014 (S-3 at 4), reads as follows:

[ translation ] The patient is a small boy who presents with very significant overall developmental delays that are at the level of a severe to profound deficit. By analogy, the intellectual output associated with this type of development suggests the presence of a comparable cognitive impairment, at the level of severe to profound mental retardation. ...

Furthermore, although we expect the child’s abilities to improve because of his youth and ongoing recovery following the brain injury, we find that the developmental potential might be upgraded to moderately severe mental retardation. [ 9 ] According to the evidence on record, prior to the assault, this child was developing normally. [ 10 ] The sequelae are permanent. It is likely that he will now never be completely autonomous. Sentencing purposes and principles [ 11 ] The purposes and principles are stated under sections 718 et seq. of the Criminal Code . [ 12 ] My colleague, Paul Chevalier, J.C.Q., in R. v.

M.M. , 2011 QCCQ 4962 , summarized them in a way that is very useful here: [ translation ] [12] According to the Supreme Court of Canada in 2010, the main objective in sentencing is: 12.1. ... contribution, 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 sanction” 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. [13]

Section 718.1 Cr. C . adds that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, whereas

section 718.2 Cr.

C . states that it must also account for any aggravating or mitigating circumstances relating to the commission of the offence or the situation of the offender and that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [14] This same provision obliges the court to consider the possibility of sanctions that would be less restrictive than incarceration when justified by the circumstances and to examine all the applicable non-custodial sanctions justified in the circumstances. [15] The principle of proportionality is therefore a central element of sentencing since [ translation ] “from this perspective, the sentence is adapted according to the personality of the accused; it is individualized.

Each case turns on its own facts and the sentence must reflect all the circumstances of the case”. [16] It is also useful to review the remarks of Lamer, J. in M. (C.A.) : 16.1 Retribution in a criminal context, ... represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. [ 13 ] I would add to the above that

section 718.2 Cr. C . lists as aggravating factors the fact that the victim is a child and the offender’s position of trust or authority in relation to the victim. The accused’s responsibility and conduct [ 14 ] The accused was evaluated by a psychiatrist on May 27, 2014 (SD-1). The report indicates that she was responsible for her actions at the time of the incident but that she was suffering from depression that [ translation ] “could well have predisposed her to act upon an aggressive impulse directed at her son”.

Her depression is described as follows (page 16): [ translation ] We reach a diagnosis of major depression of moderate intensity, without psychotic features, first episode, which was present at the time of the events alleged against her. The episode is presently in partial remission due to the treatment undertaken (pharmacological and psychotherapeutic), but there are still residual symptoms. The post-offence conduct of the accused [ 15 ] There was a rumour circulating that the father had shaken the child.

The accused realized that she was responsible for the child’s injuries, but preferred to put the blame on her ex-spouse. [ 16 ] During the police investigation, a decision was made to ask those who were likely to have committed the act to undergo a polygraph test. The ex-spouse agreed. When it was her turn, the accused refused. It was then that she admitted to shaking her son. Six months have gone by since that reprehensible act took place.

[ 17 ] The accused has given differing versions to the experts who evaluated her of her memories of shaking the child and the moment she realized that her actions had caused the previously described damage to the child. [ 18 ] She was also recorded, unbeknownst to her, during a conversation with her new boyfriend immediately after admitting to the police officers that she had committed the assault. This recording is far more representative of the truth than the stories she told the experts when she was aware that her version could have an impact on her criminal liability.

In these different reports, she stated that she had forgotten that she had shaken the child and that she had not realised that her actions had injured the child. The Court wants to believe that it is possible she did not initially realize that her son’s poor condition was the result of her having shaken him. When she found out that this was the case, however, she could not have been unaware that she was responsible. The Court does not believe that she had forgotten this fact, as she told the psychiatrist.

The recording of the conversation she had with her boyfriend on February 28, 2013, which was recorded without her knowledge (S-2), has convinced us of the opposite. Mitigating circumstances [ 19 ] The accused was 21 years old at the time of the offence. She does not have a criminal record. She pleaded guilty. She was depressed when she committed the act. Aggravating circumstances [ 20 ] The victim is a child. She was responsible for seeing to his well-being. The victim’s sequelae are very severe. For a fair amount of time, she let the rumour circulate that the father of the child had committed the offence.

Balancing the factors [ 21 ] This was a single, spontaneous action by a depressed person in a moment of impatience. The consequences of that action, however, are extremely serious. Unfortunately, this case is not unique since many like it have been identified. Young children are entirely dependant on those who care for them, usually the parents. They are defenceless. Crimes against children must be vigorously denounced. Sentences must act as a deterrent.

The experts consulted, including the probation officer, do not rule out a risk of re- offending, but the risk will decrease if the accused gets the appropriate therapy. The accused has delayed committing to her therapy. [ 22 ] The sentences handed down by the courts in cases of shaken children are usually prison sentences lasting from a few months to five or six years’ imprisonment. The harsher sentences are generally given to accused who were free of mental issues when they acted. [ 23 ] I have consulted the case law cited by the parties, which is listed hereafter: R. v.

E.P ., 2006 QCCQ 12800 , upheld on appeal 2007 QCCA 914 , R. v. L.B ., 2003-193 (C.Q.), R. v. Caroline Vachon , 2010 QCCQ 10405 , R v. S.E.C ., 2003 BCCA 421 , R. v. M.P. , J.E. 2002-326 (C.Q.) , R. v. J.B ., 2008 QCCQ 3733 , R. v. Santana , [1995] O.J. No. 2141 (Ont. Ct. of J.) (QL) , R. v. Trudeau , J.E. 2004-32 (C.Q.) , R. v. J.C ., 2007 QCCQ 7785 and R. v. M.M ., 2011 QCCQ 4962 . [ 24 ] I am of the opinion that a sentence of thirty months’ detention satisfies the ends of justice. [ 25 ] I therefore sentence you to serve thirty months’ imprisonment from this day. [ 26 ] Pursuant to

section 109 Cr. C ., you are prohibited from possessing firearms or any object listed under that provision for a period of ten years. [ 27 ] Pursuant to

section 487.051 Cr. C ., I grant an authorization to take from you samples of bodily substances required for forensic DNA analysis. __________________________________ MICHEL BABIN, J.C.Q. Mtre VÉRONIQUE PICARD Criminal and penal prosecutor Mtre ÉRIKA MARIER Cliche Lortie Ladouceur inc. For the accused Dates of hearing: February 26 and 27, 2015