R v McKinney, 2024 ABCJ 1

In the Alberta Court of Justice Citation: R v McKinney, 2024 ABCJ 1 Date: 20240104 Docket: 221121270P1 Registry: Calgary Between: His Majesty the King - and - Jason McKinney Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify AB and CD must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Sentence of the Honourable Justice A.A. Fradsham Introduction [ 1 ] Mr. McKinney pleaded guilty to assaulting two children he was babysitting on August 26, 2022 (contrary to

section 266 of the Criminal Code ). [ 2 ] Unless otherwise specifically stated, a reference in these Reasons to a

section number is a reference to that

section in the Criminal Code . Issues [ 3 ] The overarching issue is the determination of the appropriate sentence to be imposed. The more specific issue is whether Mr. McKinney should be granted a conditional discharge.

Facts The Offence [ 4 ] The offending behaviour occurred on August 26, 2022. It was reported to the police on August 29. Mr. McKinney was arrested on October 23, 2022, and the Information charging the offence was received pursuant to

section 508.1 on November 17, 2022. [ 5 ] Mr. McKinney was a close friend of the family of the two children involved. Indeed, Mr. McKinney was referred to as “cousin.” The children, to whom I will refer as AB and CD, were, at the relevant time, 3 and 2 years old respectively. Both AB and CD are autistic and non-verbal. [ 6 ] Mr. McKinney had babysat AB “on and off” since she was 6 months old, and had babysat CD since he was 1 year old. Mr. McKinney’s babysitting

schedule was Monday to Friday from 10 am to 6 pm. He also babysat for a period of time each Friday evening when the children were asleep so that their mother could pick up her husband from work. [ 7 ] The children’s mother contacted police after she watched a video recording taken on August 26, 2022, by a security camera which was in the living room of the residence. That recording, which Mr. McKinney admitted was accurate, showed the children and Mr. McKinney interacting. In particular, the recording showed five incidents which form the subject matter of this charge.

These events occurred shortly after 2 pm, and were confined to a 10-minute period. [ 8 ] The incidents, captured on the previously mentioned video (marked as Exhibit 1), which Mr. McKinney agrees were not undertaken by him for corrective purposes, were as follows (in each case the child was standing facing Mr. McKinney who appears to have been sitting facing the child): 1. Mr. McKinney washed CD’s face with a washcloth. He placed his left hand on the top of CD’s head to hold the child’s head still while he washed CD’s face with a washcloth which Mr. McKinney was holding in his right hand.

The washing lasted 6 seconds. While it was a vigorous washing, it did not exceed acceptable bounds. Immediately at the conclusion of the washing, Mr. McKinney lightly slapped the left side of CD’s face with the washcloth. In other circumstances, the context and force of the slap might have suggested that the slap was simply playful. However, Mr. McKinney has admitted that the application of force constituted a non-consensual application of force for which there was no lawful justification. 2. Mr. McKinney put his hands on either side of AB’s head so that they held AB’s head immobile for two seconds. 3. Mr.

McKinney, with his right hand, slapped the back of AB’s left shoulder. That occurred within one second. The force of the slap cannot be judged from the video, but it did not cause the child to move or lose balance. 4. Mr. McKinney again put his hands on either side of AB’s face so that they held AB’s head immobile, this time for 3 seconds. On this occasion Mr. McKinney’s hands were lower down on AB’s face so that McKinney’s hands cupped from left to right the chin area of the child. 5. CD put his left hand to his mouth area and Mr. McKinney slapped the child’s hand. It did not appear to be a hard slap.

The event lasted one second. [ 9 ] Neither AB nor CD suffered any injuries as a result of these events (as the Crown acknowledged in submissions). The Offender [ 10 ] Mr. McKinney was 25 years old at the time of the offence. He has no criminal record. [ 11 ] Mr. McKinney was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was five years old. His mother chose not to medicate him or otherwise treat the condition. As stated in the Pre-Sentence Report, and I accept, Mr.

McKinney “was diagnosed with depression and an anxiety disorder while in high school, but neither were treated, as [his mother] does not believe in medication children (sic)….” As reported by Mr. McKinney’s mother to the author of the Pre-Sentence Report provided to me, and I accept, Mr. McKinney “experienced high levels of bullying throughout his life, particularly throughout high school…he also experienced speech issues and had a speech therapist for two years; however, after speech therapy, he began having issues articulating and expressing his feelings and emotions….” Ms.

McKinney is of the view that her son continues to struggle with those issues. Ms. McKinney also said that Mr. McKinney struggled throughout his school years, as a result of bullying and his ADHD. I accept those observations and conclusions. [ 12 ] Substance abuse does not seem to be an issue for Mr. McKinney. [ 13 ] Mr. McKinney did not graduate from high school, but did earn a “Certification of Completion of High School” in 2015. He has not attended post-secondary schooling. [ 14 ] Mr. McKinney has a sporadic work history. He currently is employed through a temporary employment agency.

His employer told the author of the PSR that Mr. McKinney works between four and six days per week, and between five to seven hours per day. The employer says that the work Mr. McKinney does is “simple labour work, which is not intensive, but repetitive and tedious.” The employer said that Mr.

McKinney “is a reliable employee; however, has punctuality issues, his attitude can be problematic, [he] is easily influenced by other staff, and struggles with the pace of work and a perceived lack of motivation.” The employer reported that “several conversations that were corrective or disciplinary in nature have occurred,” but that after those conversations, Mr. McKinney has made

improvements. The employer said that Mr. McKinney “needs occasional ‘tune-ups’.” [ 15 ] Mr. McKinney supports himself on his employment income and occasional loans from his mother. [ 16 ] Mr.

McKinney said that his “dream job” would be designing video games, but he does not have the prerequisites to attend the necessary educational courses, and he has not investigated what education upgrading is available to him. [ 17 ] He told the author of the PSR, and I accept, that “he spends the majority of his free time collecting cards, playing card games, playing video games, watching television, watching movies and spending time with his peers generally doing these things.” [ 18 ] Mr.

McKinney said that he “does not have any particular goals and wants to simply ‘live his life’.” [ 19 ] Having both read the PSR and observed Mr. McKinney in court, I agree with his mother’s observation that Mr. McKinney is “immature.” I use that word not in a pejorative sense, but in the sense of “lacking emotional or intellectual development” ( Canadian Oxford Dictionary, Second Edition , p. 759). [ 20 ] Both the Crown and the author of the PSR voiced a concern that Mr. McKinney might be accepting no more than minimal responsibility for his actions.

With respect, having watched the video of the events, and being mindful of Mr. McKinney’s emotional immaturity and rather child-like narrow and limited view of the world, I am of the view that his failure to articulate insight is more a product of innate inabilities than it is of conscious indifference. Crown Position on Sentencing [ 21 ] The Crown submitted that the appropriate sentencing response in the case at bar is to suspend the passing of sentence and place Mr. McKinney on probation for 24 months. [ 22 ] The Crown submitted that the terms of the probation order include the following specific conditions: 1.

No contact with the two children and their mother. 2. Do not go to any known residence, place of employment, education, or place of worship of any of the two children and their mother. 3. Attend for assessment and counselling as directed by probation for psychiatric/psychological issues and anger management. 4. Not own, possess, or carry a weapon including knives (other than required for the preparation or consumption of food, and excluding work tools being used at work). 5. Not to be engaged in any employment or volunteer position in which the offender would be supervising individuals under 18 years of age. 6.

Not to be in presence of anyone who is under 18 years of age, unless an adult is present. [ 23 ] The Crown also applied for the following ancillary orders: 1. A firearms/weapons prohibition order under

section 110 for a period of 5 years. 2. A secondary designated offence DNA order under

section 487.051(3)(b). Defence Position on Sentencing [ 24 ] Mr. McKinney, through his legal counsel, submitted that he should be granted, pursuant to section 730(1), a discharge on the conditions set out in a probation order. The length of the order and the terms of the order were identical to those sought by the Crown. [ 25 ] The defence opposed the DNA order sought by the Crown, and submitted that the “weapons prohibition” sought in the probation order obviated any basis for an additional

section 110 order. Law and Analysis Sentencing Purposes, Principles, and Objectives [ 26 ] The purpose, objectives, and principles of sentencing are set out in sections 718 to 718.2. [ 27 ] The fundamental principle of sentencing is proportionality: that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Proportionality is not only the paramount sentencing principle, but is also the “organizing” sentencing principle, related to all other sentencing considerations in sometimes complex ways: R v Parranto , 2021 SCC 46 at paragraph 10 [ Parranto ]: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives”:

denouncing unlawful conduct and harm done to victims, deterring the offender and others from committing offences, separatingoffenders from society where necessary, assisting in rehabilitating and promoting a sense of responsibility in offenders, andacknowledging and paying reparations for harm done to victims or communities: s 718. [28] In the case at bar, I must impose a sentence which gives “primary consideration to the objectives of denunciation anddeterrence” of the offending conduct, because it involved abusing AB and CD, who, as very young, autistic, non-verbal children, are“under the age of 18” and “vulnerable because of their circumstances”: sections 718.01 and 718.04; see also R. v.

Nickel, 2012 ABCA158 at paragraph 20 [Nickel]. [29] “Denunciation is the communication of society’s condemnation of the offender’s conduct”: R. v. Proulx 2000 SCC 5 atparagraph 102. As stated in R. v. M. (C.A.) (SCC), [1996] 1 S.C.R. 500 at paragraph 81: “...The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. AsLord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: ‘society, through the courts, must show its abhorrenceof particular types of crime, and the only way in which the courts can show this is by the sentences they pass’.” [30] The concept of deterrence was explained in R. v.

B.W.P. 2006 SCC 27 , [2006] 1 S.C.R. 941, at paragraph 2: Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and othersfrom engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence”, whendirected at others, “general deterrence”. The focus of these appeals is on the latter. General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.

When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or shedeserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. [31] Denunciation and deterrence ultimately aim to reduce crime and protect society. However, as Justice Paciocco recentlyexplained in R. v. MV, 2023 ONCA 724 at paras 44-47: 44. There are limits on how long sentences can be made to achieve the utilitarian goals of reducing crime and protecting society throughdeterrence and denunciation.

It would violate the fundamental principle of proportionality to impose a sentence that either exceeds orfails to reflect the “gravity of the offence” and the “degree of responsibility of the offender”: s. 718.1. Therefore, offences of the samekind can yield a range of penalties, situated on a spectrum. The worse the offence and the greater the degree of responsibility, the greaterthe sentence should be. 45.

In measuring the gravity of the offence and the degree of responsibility of the offender and situating the offence on that spectrum, acourt that imposes the sentence shall take into consideration the aggravating and mitigating circumstances relating to the offence andoffender: see s. 718.2(a). The role of aggravating and mitigating factors is to assist in assessing the gravity of the offence and the degreeof responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11. 46.

It is helpful to think of the material aggravating factors as those that increase the gravity of the offence relative to other offences ofthe same kind, or that increase the degree of responsibility of the offender, relative to other offenders committing the same kind ofoffence. It is helpful, in turn, to think of material mitigating factors as those that reduce the gravity of the offence relative to otheroffences of the same kind, or that move the degree of responsibility of the offender downwards relative to other offenders committing thesame kind offence. 47.

Aggravating and mitigating circumstances are not the only considerations in identifying a fit sentence for the crime in question. Aproportionate sentence is also identified by applying the principles that govern sentencing for the offence in question and by consideringthe material sentencing objectives.

I will refer to principles relevant to this case as they arise. [32] In the case at bar, I consider as applicable, but secondary, the sentencing objectives of assisting in rehabilitating Mr.McKinney [section 718(d)] and assisting his efforts to gain awareness of the harm he has done to others because of his offendingbehaviour [section 718(f)]. [33] Cases involving physical assaults on children cover such a wide range of conduct and offenders that the resultant sentencesrange from discharges to incarceration; the caselaw provides no “on-point” authority with respect to sentencing Mr. McKinney for thisoffence.

Nevertheless, I must consider the sentencing principle of parity [see:

section 718.2(b)]. Indeed, as Chief Justice Wagner andJustice Abella wrote in R. v. Friesen, 2020 SCC 9 at para 33 [Friesen]: 33. ... A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate thedemands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factualsituations in the world and the plurality of judicial perspectives.

Precedents embody the collective experience and wisdom of thejudiciary. ... [34] Parity means aiming toward fairness and predictability by consistently sentencing like offenders for committing similaroffences. However, the parity principle does not override the individualized approach to sentencing nor preclude disparity incircumstances where proportionality warrants disparity (R. v. Parranto, 2021 SCC 46 at paragraph 12; R. v.

Proulx 2000 SCC 5 atparagraph 86). [35] In order to compare the case at bar to sentences for like offences compared to like offenders, the aggravating and mitigatingfactors need to be articulated.

Aggravating Factors [ 36 ]

Section 718.2(

a) states that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. Sections 718.2(a)(i)-(vi) set out specific circumstances which are statutorily deemed to be aggravating circumstances. However, that list is not exhaustive, and does not “limit the generality” of the requirement that a sentence “should be increased…to account for any relevant aggravating…circumstances”. [ 37 ]

Section 718.2(a)(ii.1) states that the court must consider it as an aggravating circumstance that “the offender, in committing the offence, abused a person under the age of eighteen years”. [ 38 ]

Section 718.2(a)(iii) states that the court must consider it as an aggravating circumstance that “the offender, in committing the offence, abused a position of trust or authority in relation to the victim”. “Victim” is defined in

section 2 as being “a person against whom an offence has been committed…who has suffered…physical or emotional harm…as the result of the commission of the offence….” Consequently, it is a statutorily aggravating circumstance that Mr. McKinney assaulted individuals (the two children) in relation to whom he was in a position of authority by virtue of his position as their babysitter. Mitigating Factors [ 39 ] Mr. McKinney pleaded guilty to the offence.

I find that he has thereby, within the context of his own emotional and intellectual development, expressed some insight and genuine remorse for his actions (see: R. v. Martineau , 2021 ABCA 401 at paragraphs 24-26 ). [ 40 ] Mr. McKinney does not have a criminal record. Although Alberta’s Courts have historically considered the absence of a criminal record to be a neutral sentencing factor, the Supreme Court of Canada recently clarified that the absence of a criminal record can be a “significant mitigating factor”: R. v. Bertrand Marchand , 2023 SCC 26 at paragraph 127 . In the case at bar, I find that Mr.

McKinney not having a criminal record is a mitigating sentencing factor. Comparator Cases [ 41 ] The Court of Appeal in Nickel made it clear that when sentencing for offences involving the abuse of children “what is required is adherence to the applicable sentencing principles, particularly the proportionality principle, keeping in mind the primary objectives of denunciation and deterrence required by s. 718.01. That will necessitate that particular attention be given to the culpability associated with both the physical and mental dimensions of the crime” (paragraph 31).

Consequently, sentencing decisions made prior to Nickel are of “limited precedential value”: R. v. KSH , 2015 ABCA 369 at para 37 . The parity analysis in the case at bar is thus limited to cases released after Nickel . Few such cases are closely analogous to the case at bar, but several are worth considering. [ 42 ] The following post- Nickel comparator cases involve the assault of a child by an offender who was in a position of trust or authority over the child by virtue of being a childcare worker. [ 43 ] In R. v.

Arruda , 2018 ONCJ 680 , [ Arruda ], Justice Doody granted a conditional discharge for a home day-care provider who pleaded guilty to assaulting a two-year-old child who was in her care. The offence occurred over seven seconds and was caught on a secretly installed camera. The offender, while sitting on a couch and reading from a computer tablet, suddenly leaned over and grabbed the child’s hair, pulled her by her hair across the couch and onto the offender’s lap, brushed the child’s hair, and then pushed the child onto the floor, where she ended up on her knees.

The offence was not discovered until sometime after the child had switched daycare providers. [ 44 ] The child’s mother filed a victim impact statement that referenced the child being upset or cranky some days and having a hard time warming up to and trusting new people, and also said that she and her husband subsequently had difficulties trusting anyone with their children. [ 45 ] In addition to the statutorily aggravating factors of the child’s age and the trust relationship, it was found to be aggravating that the assault seemed completely unprovoked (paragraphs 28-29). [ 46 ] It was mitigating that the defendant had no record and pleaded guilty at an early opportunity, the latter of which was taken as “an indication of remorse,” and lent “credence to the submission that she is a good candidate for rehabilitation”: paragraph 30.

She also acted out of character and was suffering from unusual stress because her husband had been abusing her (paragraph 45). As the Justice Doody emphasized at para 31: 31. While an assault of a young child in a day care by the caregiver entrusted with her care is always serious, the assault was extremely brief in duration. There is no evidence that it was ever repeated. Given the secret videorecording carried on by the defendant’s husband, and the absence of a report of any other assaults, it is reasonable to conclude that this was an aberration on the part of the defendant.

And there have been no convictions against the defendant in the three years since the assault. [ 47 ] The Crown asserted that no discharge should be granted because it would be unsafe for the offender to ever again be employed in a similar role, and a discharge would not be apparent to a potential employer. However, as Justice Doody recognized at paras 48-49: 48. That is not so. As defence counsel pointed out, and as Crown counsel ultimately conceded, a conditional discharge is discoverable by a “vulnerable sector check”, a requirement for a job as a personal support worker.

The Criminal Records Act , R.S.C. 1985, s. 6.1,

prohibits the disclosure of a conditional discharge and requires that any reference to a conditional discharge be removed from thecriminal records system maintained by the RCMP only after three years have elapsed since it was granted. A vulnerable sector check willdisclose the discharge, and thus the finding of guilt, during that three year period. 49.

Consequently, the issue is whether it is contrary to the public interest that the defendant’s record of having received a discharge forassault be disclosable to a potential employer for only three years. [48] Justice Doody concluded that granting a conditional discharge would not be contrary to the public interest (at para 50). [49] The concept of a "vulnerable sector check", which afforded Justice Doody some assurance that those who would have alegitimate interest in the offending behaviour of the Ms. Arruda would have a reasonable opportunity to learn of that behaviour, alsoexists in Alberta.

A police information check (PIC), sometimes called a "vulnerable sector police information check" can be conducted inAlberta, and does much to offer reasonable protection through disclosure.

A much more detailed discussion of vulnerable sector checkscan be found in "Police Record Checks: Preliminary Research" published in March 2020 by the Alberta Law Reform Institute (see: 2020CanLIIDocs 1432). [50] The granting of an absolute or conditional discharge, while protecting the offender from having a criminal record, does notprevent those with legitimate inquiries from learning of the finding of guilt, at least for a reasonable period of time.

While that fact is notnecessarily determinative of the ultimate question, it aids in the assessment of whether the sometimes competing interests can beappropriately balanced. [51] The facts of Arruda more closely reflect the facts of the case at bar than any other case to which I was referred, or that I foundin my research. Although some of the mitigating factors in Arruda are not present in the case at bar, I do accept that Mr. McKinney,unlike Ms. Arruda, has no intention to work in a caretaker role again. [52] In R. v.

Romasanta, 2022 ABPC 168 [Romasanta], I refused to grant a conditional discharge for an offender who pleadedguilty to assaulting an 11-month-old child to whom she was acting as a nanny. Instead, I suspended the passage of sentence and placedthe offender on probation for 24 months. The facts were that the offender, in trying to settle the teething, fussy, crying child, and on andoff over approximately 10 minutes, patted, rocked, shook, jolted, and otherwise moved the child, often with significant force, causing thechild’s unsupported head to move around.

These actions, though not extreme, exceeded the bounds of an acceptable child-comfortingphysical interaction. [53] In that case, denunciation and deterrence were the primary sentencing objectives. In addition to the statutorily aggravatingfactors, it was aggravating that the offending behaviour took place over a period of 10 minutes (paragraphs 16-21). It was mitigating thatthe offender pleaded guilty and expressed genuine remorse (paragraph 23).

The offender did not have a criminal record (paragraph 24). [54] Ultimately, I determined that a conditional discharge would be contrary to the public interest (at paragraph 41). [55] Although Romasanta and the case at bar share many similarities, they differ in that the gravity of the offending conduct inRomasanta was greater, and that Mr. McKinley was not a professional nanny and has no intention of working as a caretaker again. [56] In R. v.

Morgan, (NL PC), [Morgan], Judge Joy sentenced the offender, who pleaded guilty to assaultingan 18-month-old child, to a two-month conditional sentence order (CSO) (“house arrest”), followed by one year of probation. Theoffender, who was employed as a caretaker for the child, while changing the child’s diaper, held the child’s face with force in order tokeep the child still and because the offender was frustrated with the child (paragraph 8).

This caused “deep bruising,” including “a largespot on her right cheek with additional deep bruising on the left side of her cheek up towards her right temple and a red mark on her eye”:paragraph 2. [57] The offender covered this bruising up with makeup. The child’s parents did not notice anything unusual until they got home;one noticed the makeup and washed the child’s face to reveal the bruising.

That night, one of the child’s parents called the offender andasked her about the bruising; the offender said that the child “ran into the kiddie table or that maybe a child grabbed her face when [theoffender] wasn’t there”: paragraph 3. [58] The next day, one of the parents took the child to the hospital where doctors observed the bruising and said they were obligedto contact the Manager of Child, Youth and Family Services. The offender was contacted by the police, asked to attend the detachment,and was told she would be arrested for assault when she arrived.

The offender initially lied to police about what happened to the childand said that the child had fallen down several times; she also said that she had accidentally hit the child with her elbow.

According tothe agreed statement of facts, the offender initially “denied grabbing [the child], and said she would not intentionally hurt a child.” [59] In addition to the statutorily aggravating factors, and the offender’s attempts to conceal the child’s injuries, Judge Joy foundthat the offender’s training and experience, having previously been employed as a staff member at an established childcare facility,increased her moral culpability: paragraph 88.

The offender had no previous criminal record and was remorseful. [60] Although the case at bar and Morgan have some similarities, they also have significant dissimilarities. In the present case,there were no injuries; in Morgan, there were significant injuries which the offender tried to conceal using makeup, and lying about theircause when confronted by the child’s parents and when speaking with the police. Further, unlike Mr. McKinney, Ms.

Morgan hadsignificant training and experience in childcare which heightened her moral culpability. [61] I have found two other sentencing decisions for assaults against children by day-care workers: R. v. El Hmainai, 2023 QCCQ97 (translated) [Hmainai], and R. v. Sahil, 2023 QCCQ 4891 (translated) (pending appeal) [Sahil].

In each case, the offender wassentenced to a CSO followed by probation for five counts of assault against four children between two and four years of age who wereunder the offender’s care at a childcare facility. [62] Although somewhat factually different from the case at bar, I have also considered sentencing decisions for assaults against

children by offenders in other kinds of positions of trust or authority. [63] In R. v. Robertson, 2017 ABPC 314, I imposed a 6-month CSO for a boy scout leader who shot a 12-year-old child, who wasin his boy scout group, with an air soft pellet gun four times. [64] In R. v. Laberee, 2016 ABPC 116, Justice Brown granted a conditional discharge with 12 months’ probation for ateacher/coach who assaulted two students in his self-defence class by striking them repeatedly with bamboo rods, causing welts andbruises. [65] In R. v.

JB, (NL PC), Justice Gorman granted a conditional discharge with 12 months’ probation to apartner of the victim’s mother who grabbed the six-year-old child by her arms, lifted her off the floor, and slammed her into the wall. Proportionality in the Case at Bar [66]

Section 718.1 states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.” [67] In R. v. Hamlyn 2016 ABCA 127[Hamlyn], our Court of Appeal reiterated the meaning of “gravity of the offence” atparagraph 9: 9. “What is meant by ‘gravity of the offence’? This concept is directed to what the offender did wrong. It includes two components: (1)the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. What influences that analysis apart fromthe degree of injuriousness inherent in the crime itself?

The answer lies in s. 718.2”: R. v. Arcand, 2010 ABCA 363 at para 57. [68] The Court, in speaking of the offender’s “degree of responsibility”, said: “The greater the harm intended or the greater thedegree of recklessness or wilful blindness, the greater the moral culpability”: Hamlyn at paragraph 12, citing R. v. Arcand, supra, atparagraph 58. [69] In Nickel, at paragraph 19, the Court of Appeal said: “It has always been the position of the court in dealing with crimesagainst defenceless children that a strong response was warranted….” [70] At paragraphs 34-35 of Nickel, the Court said: 34.

Perhaps the most important consideration when assessing moral culpability of the actus reus is the child’s exposure to harm. So, itwould be useful to begin by determining the nature of the harm experienced by the child. For example, was it bodily harm as defined bys. 2 of the Code…, or a more serious form of harm or suffering from which the child may or may not completely recover. Finally, wasthe harm likely to endanger the life of the child? 35.

As to the level of culpability arising from the mens rea, it will be necessary to determine the extent to which the harm wasforeseeable, the risk or likelihood that the offender’s conduct would give rise to the harm, as well as the offender’s state of mind or stateof awareness.

For example, was the offender aware that the conduct was likely to subject the child to bodily harm, and if so, did he or sheintend that consequence? [71] In the case at bar, the primary sentencing objectives are deterrence and denunciation, but any sentence crafted with thoseobjectives as the goal must nonetheless conform with the fundamental sentencing principle of proportionality. The abuse of vulnerablechildren in one’s care is inherently serious, and its occurrence in the case at bar was therefore serious.

However, there was no discernableresultant harm – or, at minimum, no discernible injury – and the offender neither intended nor subjectively foresaw that his offendingbehaviour might result in harm to either of the children. [72] Mr. McKinney was not reckless (as that term in used in the law), nor was he wilfully blind as to the possible consequences ofhis actions.

His actions crossed over the line into criminality because they involved non-consensual touching of the two children with nocorrective purpose, but his acts were not fuelled by malice or wanton indifference. [73] Unlike the offender in Morgan, there is no evidence that Mr. McKinley had extensive training in working with children whichwould increase his moral culpability (see Morgan at paragraph 88).

It is reasonable to infer that in other cases of offenders who wereprofessional childcare workers, the offenders were found to have greater moral culpability because of their training (e.g., those inHmainai and Sahil). [74] Similarly, the breach by Mr. McKinney of the trust relationship aggravated this offence less than the trust relationshipbreaches in the above-cited cases in which a parent or stepparent breached their trust relationships. As Friesen emphasized, not all trustrelationships are the same; parental trust relationships may be the most profound (see paragraphs 126, 130, 134).

At a minimum, the factthat Mr. McKinney was watching over the children while not being their parent cannot be more aggravating than a parental trustrelationship. This must be factored into the parity analysis when comparing cases involving breaches of the parental trust relationship. [75] It is also worth noting that this crime was impulsive; Mr. McKinney’s moral culpability is less than it would have been if thiscrime were calculated (for example, see: R. v.

Sinclair, 2016 ABPC 209 [Sinclair]). [76] Relative to comparable cases, the gravity of this particular offence, and the moral blameworthiness of this particular offender,are both at the low end of the range. The Offender’s Application for a Conditional Discharge

[77] Mr. McKinney has applied for a conditional discharge under section 730(1). The basic issues to be determined are (1) whethera discharge is in Mr. McKinney’s best interests, and (2) whether granting a discharge is “not contrary to the public interest.” [78] I am satisfied that granting a conditional discharge is in Mr. McKinney’s best interests. [79] As to whether granting a conditional discharge is not contrary to the public interest, a consideration of the factors set out in R.v. MacFarlane (1976), 1976 ALTASCAD 6 , 55 A.R. 222 (Alta. C.A.), will assist in answering that question. I note thefollowing: 1.

The offence, involving as it does the assault of children by a caregiver, is a serious offence. However, the actual physical actswhich constituted the assaults were at the low end of the range. The Crown proceeded by way of

summary conviction procedure. 2. Offences against children are not as frequently seen in these courts as, for example, property crimes, but they cannot beclassified as uncommon. 3. There was no personal gain sought by the offender. 4. There was no property value to consider in this case. 5. The offending conduct occurred over a period of approximately 10 minutes, and was reactive as opposed to calculated (seeSinclair). 6.

The circumstances of the offending behaviour appear to be but one episode of transgression in a long history of interactionsbetween the offender and the two children, and involved two very young special needs children being left in the care of a person who ishimself dealing with immaturity and ADHD. It would seem that he was engaged for the work because he was a friend of the family.

Mr.McKinney was neither formally trained to care for special needs children, nor had he engaged, nor does he intend to engage again, insimilar employment. [80] It is not contrary to the “public interest” to take reasonable steps to avoid unduly limiting Mr. McKinney’s employmentprospects, especially since he has no intention of pursuing a career caring for vulnerable persons.

He already struggles with ADHD and,as described in the PSR, he has neither a career plan, nor any discernible interest in creating one (apart from an interest in designing videogames, a career for which he does not have the training, nor a plan to obtain the training). In the unlikely event that Mr. McKinney wereto pursue a job which involves caring for vulnerable persons, his conditional discharge would be revealed in a “vulnerable sector check,”which is normally required for such employment.

Access to knowledge of this disposition, and the protection which such knowledgeaffords the public, will be available. [81] I do not say this unkindly, but the truth of the matter is that Mr. McKinney brings scant talents to the labour market. He haslittle in the way of formal qualifications, and his work performance record suggests that he is inattentive. One may fairly infer that hisADHD and immaturity both contribute to those impediments. As noted by our Court of Appeal in R. v. Auger 2017 ABCA 304, when itdecided to grant a conditional discharge to the offender in that case: 12.

The appellant has limited employment prospects. The burden of a criminal record will further reduce his employment prospects fromthe narrow range of jobs that may be available to him. [82] The same can be said of Mr. McKinney: the imposition of a criminal record will only further restrict his already somewhatdismal opportunities for more than mere subsistence employment. Declining to erect more unnecessary employment barriers for Mr.McKinney is both in his best interests and not contrary to the public interest. [83] The offence to which Mr.

McKinney has pleaded and been found guilty does not carry with it a minimum punishment, nor is itpunishable by imprisonment for 14 years or for life. Consequently, a discharge under

section 730 is an available sentencing disposition. [84] In R. v. Reid, 2015 ABCA 334 [Reid], the Court said, at paragraph 19: A discharge is only available in the most exceptional circumstances in crimes of violence. In R v Teclesenbet, 2009 ABCA 389, thisCourt stated: As to the second condition; that the discharge is not contrary to the public interest, MacFarlane noted that it would be an exceptionalcase where a crime of violence attracted a discharge. In our view this case does not reach that level.

This is all the more true given thenature of the conviction - in this case assault causing bodily harm, an offence that often attracts jail terms... [85] In Reid, the Court also said: 16. A discharge may often be in the immediate best interests of the accused. There is no criminal record; there is no sanction. However,whether such a disposition is or is not contrary to the public interest engages broader considerations. These include consideration of thefundamental principles of sentencing, specific and general deterrence, and respect for the administration of justice.

Althoughtheoretically available for any offence, a discharge is often inappropriate where denunciation and deterrence are of primary importance:see R v Kemper, 2004 ABCA 348. In a case such as this, where there is gratuitous violence and serious harm, the second consideration inMacFarlane demands that a sentencing judge consider the impact of granting a discharge - what will the public think about thissentence? what behaviors might the sentence be seen as condoning? 17.

The discharge provisions were enacted by Parliament to recognize human frailty and to allow a measure of social condonation.Parliament has recognized that in exceptional cases the full impact of the criminal law does not necessarily serve its objectives. Adischarge is an unusual disposition that must be used sparingly for it to remain effective. Were it used regularly it would sacrifice allother principles of sentencing to the consideration of the offender, thereby undermining the reputation of the justice system.

[86] Whether a discharge is an appropriate disposition depends very much upon the particular circumstances of the case beingconsidered. Apart from the two pre-conditions noted (no minimum punishment and an offence not punishable by imprisonment for 14years or life), dogmatic pronouncements that a particular type of offence will never be the subject of a discharge do not sit well withsection 730. Indeed, as our Court of Appeal emphasized in R. v.

Bram, 1982 ABCA 256 at paragraph 5, not even absolutedischarges should be reserved for “trivial or unintentional offences.” [87] The most one can say, as was forcefully noted by the our Court of Appeal in paragraph 42 of R. v.

Turner, 2022 ABCA 11, isthat the circumstances of certain offences and offenders are rarely dealt with by way of a discharge, whereas “an offender most likely tobe granted an absolute or conditional discharge is a young first-time offender who committed a minor offence and, based on thepreoffence and postoffence conduct, is likely to make law-abiding choices in the future.” However, the Ontario Court of Appeal has alsoemphasized that discharges are not primarily available to youthful, offenders, as distinct from mature offenders: Regina v. Culley, (ON CA), 36 CCC (2d) 433 at 435. [88] In R. v.

Hust 2004 ABPC 128, Judge Allen set out a helpful overview of principles which apply when considering anapplication for discharge: 13. A discharge is not confined to any offence or classes of offences other than those statutorily excluded: R. v. Sanchez-Pino (1973), (ON CA), 11 C.C.C. (2d) 53 (Ont. C.A.) (Sanchez-Pino) at p. 59; R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) (Fallofield ) at p. 454. The

section does not limit the application of a discharge to atechnical or trivial offence: Fallofield at p. 454, R. v. Bram (1982), 1982 ABCA 256 , 30 C.R. (3d) 398 (Alta. C.A.) at p. 400.Thus, it is an error to hold that a discharge is unavailable or never appropriate for a particular offence not excluded by the section: R. v.Prier, 1976 ALTASCAD 92 , [1979] 6 W.W.R. 328 (Alta. C.A.); R. v. Taylor (1975), (ON CA), 24 C.C.C.(2d) 551 (Ont. C.A.) (Taylor). However, a discharge should be granted routinely as a substitute for suspended sentence and probation: R.v. Derkson (1972), (BC PC), 9 C.C.C. (2d) 97 (B.C. Prov.

Ct.) at p. 101; R. v. MacFarlane (1976), 1976 ALTASCAD6 , 3 Alta. L.R. (2d) 341 (Alta. C.A.) (MacFarlane) at p. 11; Fallofield at p. 454, R. v. Sala (1990), 111 A.R. 8 (Alta. Prov. Ct.)at para. 16. [89] I repeat what I said in R. v. Eustaquio, 2018 ABPC 55 at paras 57-58 [Eustaquio]: 57. It is clear that in referring to R. v. Derkson (1972) (BC PC), 9 C.C.C. (2d) 97 (B.C. Prov. Ct.) at p. 101, an errorinadvertently crept into Judge Allen's original reasons. Judge Allen must have intended to say, "However, a discharge should not begranted routinely as a substitute for suspended sentence and probation".

That corrected version is consistent with what was decided in R.v. Derksen, supra. 58. It is also important to remember Judge Cioni’s words at paragraph 9 (p. 77) in R. v. McTaggart (1990), (AB CJ),108 A.R. 74 (Alta. Prov. Ct.), regarding the granting of a discharge: It is not a matter of sympathy for any accused, or even the ability of able counsel to stack up enough "points" to make any accused asympathetic figure, or an accused being "lucky" enough to have adversity to put forward.

Discharges are not rewards; they aredispositions at law within a test given and intended to be used by the Parliament of Canada. [90] As demonstrated by many of the comparator cases referred to above, the determination that the applicable sentencingobjectives are deterrence and denunciation does not necessarily preclude the use of a discharge. In fact, Alberta courts have also ordereddischarges for the offences of assault with a weapon (for example, see: Sinclair; R. v. McKinney, 2010 ABPC 167; R. v. Blum, 2017ABPC 5); assault causing bodily harm (for example, see: R. v. Caines, 2021 ABPC 335; R. v.

Dixon, 2011 ABQB 255; R. v. Habeta,2014 ABPC 110; R. v. Willett, 2017 ABPC 68; R. v. Martinez-Mendez, 2018 ABPC 8; R. v. Stewart, 2017 ABPC 152; R. v. Derry,2020 ABPC 141; R. v. Briegel, 2016 ABPC 194; R. v. Croteau, 2015 ABPC 142); and for particularly violent and prolonged domesticassault cases (for example, see: R. v. Aymont, 2008 ABPC 285; Gardiner; R. v. Serafinchon, 2009 ABPC 308). [91] Mr.

McKinney is a 26-year-old man suffering from ADHD, immaturity, and resultant limited employment prospects, but withno criminal record, who, while caring for two special needs children, committed, over a 10-minute period, an offence of minimal andnon-injury violence against them. The offending conduct is at the low end of the range of seriousness, and that may have been the reasonthat the authorities took from August 29th to November 17th to bring the charges. [92] I am satisfied that the sentencing objectives of deterrence and denunciation are sufficiently satisfied by Mr.

McKinney, in hisparticular circumstances, having gone through the rigours of the criminal justice system. I am satisfied that granting a conditionaldischarge is in the best interests of Mr. McKinney, is not contrary to the public interest, and satisfies the principle of proportionality. [93] The discharge is subject to the conditions of a probation order. The length of that order and the terms of that order must belogically connected to the conduct of the offender. Mr. McKinney does not pose any danger generally to people under the age of 18years.

A condition that he not be in the presence of such individuals is unnecessary; however, a condition that he not work with suchpeople in a supervisory capacity (without probation approval) is reasonable. [94] Mr. McKinney’s consent to an unnecessary term does not make that term reasonable for the same reason that an accusedperson consenting to an unreasonable condition in a judicial interim release order does not thereby make that term reasonable (see: R. v.Zora 2020 SCC 14 at paragraphs 78 and 89). [95] Likewise, there is no reason to impose a

section 110 firearms prohibition in this case. Mr. McKinney did not use or threaten touse any weapons. [96] I also decline to make a secondary designated offence DNA order under

section 487.051(3)(b). Mr. McKinney has no criminalrecord, suffers from his own psychological difficulties, and the acts constituting the criminal offence were reactive, minimal, andoccurred over a short period of time. An order requiring Mr. McKinney to provide a DNA sample would be a significant incursion uponMr. McKinney’s privacy rights and the security of his person, while not materially enhancing the safety of the public.

Sentence [ 97 ] Pursuant to

section 730, I grant Mr. McKinney a discharge conditional upon the terms of a 24-month probation order. The terms of the probation order are as follows: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so. 3. Notify the court or probation in advance of any change in your name or address, and promptly notify the court or probation of any change in employment or occupation. 4. Report to probation within two working days of this order, and thereafter report when required by probation and in the manner directed by probation. 5.

Abstain from communicating, directly or indirectly, with AB, CD, or their mother (I direct the Clerk to insert the actual names of those individuals into the formal order). 6. Do not attend the residence, place of employment, or place or worship of any of AB, CD, or their mother (I direct the Clerk to insert the actual names of those individuals into the formal order). 7. Do not engage in employment or volunteer activity which involves you supervising individuals under 18 years of age, unless you have the prior written permission of your probation officer. 8.

Attend for assessment and counselling as directed by your probation officer, but which shall, at a minimum, include life skills and anger management. 9. Provide a waiver of confidentiality in favour of probation so that probation may receive information from those conducting the assessment and providing the counselling. 10. Provide to probation, at such times and in such manner as directed by probation, proof satisfactory to probation that you have attended the assessments and counselling to which you have been directed. 11.

Reside where approved by probation, and do not change that residence without the prior written permission of probation. [ 98 ] Though Mr. McKinney is employed, I am satisfied that the imposition of a victim surcharge would cause him undue hardship because of his financial circumstances. I do not impose a victim surcharge. Dated at the City of Calgary, Alberta this 4 th day of January, 2024. A.A. Fradsham A Justice of the Alberta Court of Justice Appearances: D. Piper for the Crown N. Dixon for the Offender