R.D. LAING THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 102 Date: 20090908 Between: Docket: 1645 Her Majesty the Queen and Corrona C. Shorting Coram: Lane, Richards and Wilkinson JJ.A. Counsel: W. Dean Sinclair for the Crown Roger Kergoat for the Respondent Appeal: From: Q.B.J. No. 18 of 2008, J.C. of Saskatoon Heard: June 11, 2009 Disposition: Allowed Written Reasons: September 8, 2009 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Wilkinson [1] The respondent pled guilty to charge of manslaughter arising out of fatal injuries she inflicted on her seven-month-old daughter. On February 11, 2009, the sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of two years less one day to be followed by two years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. [2] The Crown contends the sentencing judge erred in his assessment of the gravity of the offence and the respondent’s moral culpability in it and failed to impose sentence which properly emphasized the principles of denunciation and deterrence. It argues the judge further erred by failing to give proper weight to the aggravating features of the case and by overemphasizing the significance of factors he found to be mitigating. Finally, the Crown contends the sentencing judge failed to apply the principle of parity, all of which resulted in demonstrably unfit sentence. I am satisfied the appeal should be allowed on the basis of this latter ground. [3] The essential facts are not in dispute. The respondent, 28-year-old Aboriginal woman, gave birth prematurely to the victim, Corona Genaille, on February 10, 2007. The respondent was heavy cocaine and marijuana user and has troubled history of abuse, addictions to alcohol and drugs and psychological problems. She grew up in unstable living conditions and was exposed to drug use, domestic abuse and sexual abuse. After the birth of the child she refused post-natal health services in order to conceal her drug use, and she avoided most contact with child welfare agencies. Her last contact with Social Services was on June 18, 2007, over three months before the incident giving rise to the charge. Corona was the respondent’s fourth child. At the time of the offence, the other children were one, four, and five years old and all suffered from developmental or health problems including autism and fetal alcohol syndrome. She was essentially the sole caregiver of the four children. The respondent drank alcohol and/or used drugs while pregnant with three of the children. [4] The respondent was living with Fabian Genaille since 2004 and he is the father of the two youngest children. Mr. Genaille abuses drugs and alcohol and works out of town often. He was not physically abusive but the relationship had deteriorated significantly. In previous relationship of eight years, she was severely and repeatedly physically assaulted. [5] On September 25, 2007, the respondent called her social worker at approximately 9:00 a.m. and said Corona was unresponsive. Two social workers came to the home, found the baby unconscious and called an ambulance. The baby was rushed to the hospital but never regained consciousness. When the baby was brought in, hospital staff noticed bruises on the baby’s face and head and called police. They interviewed the respondent and she denied knowing how the baby was injured or why she was unconscious. She later suggested the bruises may have been caused by one of the other children. Baby Corona was pronounced brain dead on September 26 and died September 27 after being removed from life support. [6] The autopsy report showed the baby died due to blunt force trauma to the head, result of multiple impacts. The pathologist also observed brain injuries, retinal haemorrhages and healing bilateral rib fractures. [7] When the police re-interviewed the respondent in November 2007, she admitted to causing the baby’s injuries and provided details about what had happened. On September 24, 2007, the day before she called the social worker (it is unclear at exactly what time), the respondent accidentally knocked the baby onto the floor, causing the baby to start crying. The respondent became angry and frustrated at the crying, at which point she lifted the baby up by an arm or leg and threw her onto the couch. The baby’s head hit wooden part of the couch. She stopped crying and began making gurgling sounds. The respondent took the baby upstairs and threw her in her crib. The baby's head likely hit the bars of the crib. The respondent was worried the baby might be hurt but did not want to think about it so left her in the crib. Several hours later she checked on the baby and found her unresponsive and unconscious. She put bottle in the baby’s mouth and changed her diaper, then left her in the crib until the next morning, at which point she called Social Services. The respondent shook the baby both on September 24 and the morning of September 25 before calling the social workers. [8] At the time of the incident, the respondent had not done cocaine for at least two days and was suffering from withdrawal. She told Dr. Nicholaichuk, clinical and forensic psychologist retained by the defence to assess her, that at the time of the incident, she was depressed, angry and tired. She also said she had never properly bonded with the baby. She continued to use drugs and alcohol after the baby’s death. [9] The respondent was arrested and charged with second degree murder in January, 2008. The charge was reduced and the respondent pled guilty to manslaughter on December 10, 2008. The court ordered pre-sentence report which indicated the respondent’s overall risk to re-offend was medium. It also indicated she had suffered extensive childhood physical and sexual abuse and severe and chronic spousal abuse at the hands of her previous common law partner as referred to earlier. [10] Dr. Nicholaichuk prepared report which indicated the respondent suffered from symptoms associated with Post-Traumatic Stress Disorder, including anxiousness, hypervigilance, paranoia, and substance abuse. He stated the symptoms could also be result of drug withdrawal. It is unclear from the report and the doctor’s testimony whether he actually diagnosed the respondent with PTSD. In the report he states “the presence of PTSD must be considered to be chronic” but also “she has no mental disorder or emotional problems not related to her substance abuse.” When he testified, he said he had not diagnosed her with PTSD. He assessed the respondent’s general criminal recidivism risk as being in the medium/high range and her recidivism risk for violent offences as being in the low range. He concluded she was not risk to the public. [11] The respondent has criminal record that includes convictions for possession of weapon and mischief (stemming from an incident in which she attacked police car with an axe while intoxicated) as well as further convictions for not abiding by the conditions in her probation order. [12] While in custody, the respondent successfully completed number of courses and has been described by her instructors as kind, respectful and eager to learn and change. The Judgment Below [13] At the sentencing hearing, the Crown and defence agreed the appropriate range of sentencing for manslaughter in Saskatchewan was four to 12 years based on the decision in R.v. Hathway.[1] The Crown suggested six year sentence was appropriate while the defence asked for sentence of one year plus time served. After reviewing the relevant Criminal Code sections, the judge found as aggravating factors the victim was child, the respondent was in position of trust and authority, and the respondent did not seek immediate help when it was apparent the child was injured. He found as mitigating factors the respondent’s acknowledgment of responsibility including her guilty plea, her expressions of remorse, her abusive background which may have caused symptoms of PTSD, and her socioeconomic situation. He found the decision of Zarzeczny J. in R. v. Schoenthal[2] to be particularly helpful. will refer to this case further in the judgment. Positions of the Parties [14] The crown contends the sentencing judge failed to properly assess the moral culpability of the respondent in this manslaughter case. It begins its argument by referring to this comment by McLachlin J. (as she then was) in R. v. Creighton:[3] [86] …Because manslaughter can occur in wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing minor offence, for example, properly attracts much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender... [15] It then argues the sentencing judge ought to have followed the process of analysis set out by the Alberta Court of Appeal in R. v. Laberge.[4] Such analysis requires: firstly, consideration of the nature of the unlawful act and the offender's mental state at the time it was committed and, secondly, consideration of the personal characteristics of the offender which would mitigate or aggravate culpability. [16] In that case the court noted that in manslaughter cases the unlawful acts which cause death may be divided into three broad categories: 1. Those which are likely to put the victim at risk of, or cause, bodily injury; 2. Those which are likely to put the victim at risk of, or cause, serious bodily injury; or 3. Those which are likely to put the victim at risk of, or cause, life-threatening injuries.[5] [17] The court noted the offender's subjective mens rea (whether she knew the act was likely to cause one of the types of injuries based on acceptable inferences) as well as objective mens rea (whether she ought to have known based on the standard of reasonable person) are both relevant to placing her degree of moral culpability on this spectrum. The court should assess each of the above categories on subjective and objective basis. In the objective analysis, the court should identify whether the act was likely to cause the severity of the injury at issue or simply risk of that degree of injury. Therefore, there are many different combinations of subjective and objective culpability which are possible. The court also stated an impulsive act did not necessarily indicate lower degree of subjective or objective mens rea. [18] The respondent replies to this argument by stating the assessment of moral culpability is question of mixed fact and law and appellate courts should defer to the trial judge's findings of fact absent palpable and overriding error or error in principle. The sentencing judge did not explicitly examine the nature of the unlawful act causing the infant's death. However, the respondent points to the judge’s reference to Schoenthal (the only case cited by the sentencing judge and case of criminal negligence causing death rather than manslaughter) as putting the unlawful act in the lowest Laberge category. In that case, the trial judge found the mother (in stressful circumstances) so vigorously shook her 23-month-old child that she caused him severe subdural and retinal haemorrhaging which led to his unconsciousness and ultimately his death. The decision of this Court overturning the finding in Schoenthal was not referred to by counsel or brought to the attention of the trial judge below. However, this does not affect the appellant’s argument the unlawful act at issue here is in the lowest Laberge category. [19] The appellant next argues the sentence imposed fails to adequately address the principles of denunciation and general deterrence and in particular argues the judge failed to address s. 718.01 of the Code. It reads: When court imposes sentence for an offence that involved the abuse of person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [20] The appellant then argues the sentencing judge overemphasized the significance of the factors he found to be mitigating. In particular, the appellant contends the judge overemphasized the mitigating nature of the respondent's abusive background, her associated mental disorder which resulted from that background, as well as her social and economic situation. Further the appellant submits the judge erred in not considering the respondent's criminal record to be an aggravating factor. [21] The appellant does not dispute the fact the respondent had an extremely abusive background but contends the sentencing judge failed to explain how the respondent's abusive background both contributed to the offence and why it reduced her moral culpability. Further, there is no support in the Criminal Code for the idea that drug addicted mothers should be held less accountable for killing their children. The argument the respondent's moral culpability was reduced because she suffered from PTSD should have been rejected by the sentencing judge because the respondent’s symptoms were not of character which interfered with her ability to appreciate her surroundings, control her actions or understand the consequences of them. The sentencing judge should not have relied on the respondent's symptoms of PTSD as mitigating factor. [22] The appellant argues the judge's reliance on Hathway, supra, to determine range ought to have been followed with an analysis of an appropriate sentence within that range. It says it is of little substance to define the width of the range and then fail to focus on the range of sentences normally reserved for similarly situated offenders who commit similar offences. The appellant argues the trial judge should have been guided by the decision of this Court in R. v. F. (R.R.), [6] where it held that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. [23] The appellant then refers to R. v. Bighead,[7] decision of this Court which it contends strongly supports the proposition that offenders who cause the death of child in comparable circumstances will usually receive custodial terms of between and 10 years. In that case this Court held that five-year sentence imposed on an offender who pled guilty to aggravated assault was demonstrably unfit. In Bighead the offender struck young child and the child's head hit sharp wooden edge. The child suffered permanent catastrophic brain injury. The offender was also abused as child and had difficult childhood. He was diagnosed as suffering from PTSD and other mental disorders. Given the nature of the injuries suffered, the Court held the appropriate sentence range was more properly defined by child-abuse manslaughter cases than by aggravated assault cases. [24] Finally the appellant contends the sentencing judge should not have concluded the respondent's social and economic circumstances mitigated her moral culpability. The sentencing judge found the respondent was forced to care for her four children without any appropriate support mechanisms from family and/or Social Services. The respondent submits she felt overwhelmed trying to take care of the children with their mental and developmental disorders. The appellant says the sentencing judge misapprehended the evidence because the appropriate government agency did not refuse to support the respondent. In fact, it was the respondent who avoided the agency and did not ask for help because she was afraid the officials would find out she was using drugs and take away her children. She did not seek the support of her mother because she was not getting along with her at the time of the offence. It is clear she had no support from her spouse but the fact that both parents were more concerned about their drug habits than they were about facing the challenges of looking after the children cannot be mitigating circumstance. [25] The deemed “aggravating factors,” i.e. the victim being child and the offender abusing relationship of trust, were clearly considered by the sentencing judge. The appellant is correct in suggesting the judge's description of the respondent’s prior offences seemingly minimized their seriousness but on that basis alone, would not find the sentence unfit. [26] With regard to the appellant's argument the sentence imposed fails to adequately address the principles of denunciation and general deterrence and, in particular, that the judge failed to address s. 718.01 of the Code, note the judge did in fact cite the section and commented that children needed to be protected from abuse at the hands of parents. It is clear the judge directed his mind to the issue. [27] The respondent's dysfunctional upbringing or dysfunctional life was put forth by the Crown as an aggravating factor at the sentencing hearing. The judge asked Crown counsel whether it could in fact be mitigating factor. Counsel responded whether it is mitigating factor or not is up to the court.[8] In my view these particular issues were considered and given appropriate weight by the sentencing judge. [28] The argument the judge did not give proper weight to the gravity of the offence and the respondent's moral culpability ultimately fails. It is clear the judge did not embark on an analysis of the kind set out in Laberge but that authority does not suggest such detailed analysis is necessary. That authority does not require judge to explicitly enunciate every factor considered in coming to his conclusion. The sentencing judge identified the incident as "tragic story where mother instead of protecting her young child, causes that child's death. As said earlier, the accused admits causing the child's death and she will have to live with that knowledge for the rest of her life, that instead of protecting her child, she caused its death.”[9] The judge was clearly alive to the seriousness of the offence. [29] do not read the trial judge’s reasons as failing to give adequate weight to both the seriousness of the offence and the respondent's moral culpability. As read the judgment, it was framed by the arguments and cases submitted by counsel. The parties agreed upon the range of sentences in manslaughter cases and the only cases referred to the sentencing judge were Hathway, supra, (a charge involving the death of an adult), Schoenthal, supra, (a charge of criminal negligence causing death), and R. v. Bos[10] (a case out of British Columbia involving manslaughter of seven-week-old child with exceptional personal circumstances of the accused). will discuss each of these cases further. [30] In other words, the judge was directed to very narrow range of authorities, i.e. case identifying the appropriate range, case with dissimilar charge, and case from another jurisdiction with sentence at the low end of the range because of the personal circumstances of the accused. In these circumstances cannot find the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would of course be helpful if more detailed analysis along the lines suggested in Laberge had been given in order to enhance meaningful appellate review. However, am not satisfied the judge failed to properly consider this factor. I am, however, satisfied this same limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentencing and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances. [31] In their sentencing submissions, the parties argued the range of sentences in Saskatchewan in manslaughter cases runs from four to 12 years in most circumstances. As mentioned above, the Crown specifically referred to Hathway, supra, where that range was confirmed although with the knowledge that there may be circumstances in particular cases which lead to sentence outside of the range. The judge concluded that in terms of manslaughter where child is the victim, the range is similar to the general range. [32] The Saskatchewan cases the respondent submitted at sentencing, i.e. Schoenthal, supra, case of criminal negligence causing death rather than unlawful act manslaughter; and Hathway, supra, case involving the death of an adult, in my view are not helpful in the determination of fit sentence within the appropriate range. The third case cited by the respondent before the sentencing judge, Bos, supra, was case where the British Columbia Court of Appeal reduced sentence of three years to two years less day where father was convicted of manslaughter in the death of his seven-week-old daughter. The court took particular note the accused was Kuwait war veteran, good father with no prior record, with otherwise exemplary conduct in the workforce and at home, with little likelihood of reoffending, and suffering deep personal agony as result of his actions. [33] On appeal the respondent cited R. v. Pauchay,[11] in which an intoxicated father left his two daughters out in extremely cold weather causing them to freeze to death. He was not directly and actively violent towards his children. He was convicted of criminal negligence causing death. Schoenthal, supra, has been discussed earlier. The respondent also cites R. v. Lam,[12] case where the operator of daycare was found guilty of criminal negligence causing death. Except for Bos, supra, the cases seemingly involve circumstances of lower moral blameworthiness than was demonstrated in the case before us. [34] The judge was not directed to decisions of this Court on the starting point for manslaughter sentences and specifically the issue of unlawful act manslaughter causing the death of child. [35] In F. (R.R.), supra, the Court reaffirmed that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. In Bighead the Court cited two decisions with approval those being R. v. Sinclair[13] (a decision of the Manitoba Court of Appeal) and R. v. Neuls.[14] In Sinclair the mother was sentenced to custodial term of seven years and in Neuls the court imposed ten-year custodial sentence on the offender who killed his two-year-old stepchild. Neuls was case involving prior acts of violence to the child resulting in massive bruising, burns to the child's feet and head injuries causing brain swelling resulting in death. [36] In my view, the most useful authority in this jurisdiction when assessing manslaughter sentences for adults who kill children is Bighead. There are significant similarities to the case before us. [37] Ken Bighead was looking after his partner's three children, including the victim who was 19 months old. At some point he hit the baby with enough force that the baby's head struck the sharp edge of the door and fell. The child ended up in persistent vegetative state with severely reduced lifespan. Mr. Bighead initially denied responsibility, hid evidence and blamed the injuries on one of the other children. There were prior acts of abuse towards the child. Like the respondent, Mr. Bighead had background described as "tragic." He had been diagnosed with number of mental disorders, including PTSD, Generalized Anxiety Disorder and Borderline Personality Disorder. He had dependence on alcohol and marijuana and an extensive criminal record. [38] Jackson J.A. found the sentencing judge to have erred by considering cases of aggravated assault where the child had essentially recovered instead of looking at comparative manslaughter cases. She referred to Neuls, supra, and Sinclair, supra, as indicative of the proper range for manslaughter causing the death of child. In each of these cases the offender had compelling personal circumstances. In Neuls sentence of 10 years was imposed and in Sinclair the sentence was just under seven years. Mr. Bighead was sentenced to years. [39] Again, the similarities between that case and the present case are striking. Both offenders had troubled histories and mental health problems, although Mr. Bighead's were more severe. Both initially denied responsibility, blamed the injuries on another child and failed to call for help in timely manner. An important difference was the fact Mr. Bighead had committed prior acts of physical abuse towards the child while there is no evidence of history of abuse in this case. Further Mr. Bighead had more extensive criminal record than the respondent. He was also only looking after the child for couple of hours as opposed to the respondent who was raising four children with developmental and health problems and severe problems of her own. Here the respondent refused to ask for available help because of her drug abuse problem. [40] These factual differences however do not warrant, in my view, sentence differential of over two years. Taking into account the mitigating factors already identified, in particular the respondent\'s post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in Bighead leads me to conclude a sentence of six years is appropriate, with 26 months credit for remand as imposed below. Leave to appeal is granted and the appeal is allowed. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of September, A.D. 2009. “LANE J.A.” LANE J.A. concur “RICHARDS J.A.” RICHARDS J.A. concur “LANE J.A.” for WILKINSON J.A. [1] 2008 SKQB 480 (CanLII). [2] 2006 SKQB 177 (CanLII); 278 Sask.R. 273. [3] 1993 CanLII 61 (SCC), [1993] [4] (1995), 1995 ABCA 196 (CanLII), 165 A.R. 375. [5] Ibid. at para. [6] 2008 SKCA 52 (CanLII), 310 Sask. R. 124. [7] 2003 SKCA 44 (CanLII), 232 Sask. R. 236. [8] Transcript of Proceedings dated February 11, 2009 at p. 65. [9] Transcript of Proceedings dated February 11, 2009 at p. 78. [10] 2000 BCCA 531 (CanLII), 143 B.C.A.C. 216. [11] 2009 SKPC 35 (CanLII). [12] 2004 ABQB 78 (CanLII), 37 Alta. L.R. (4th) 141. [13] 1997 CanLII 22827 (MB CA), [1998] W.W.R. 228. [14] (1991), 1991 CanLII 8034 (SK CA), 93 Sask. R. 89.
The respondent pled guilty to a charge of manslaughter arising out of fatal injuries she inflicted on her 7 month old daughter. The sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of 2 years less 1 day to be followed by 2 years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. HELD: Appeal allowed. 1) Taking into account the mitigating factors and in particular the respondent's post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in R. v. Bighead, 2003 SKCA 44 leads the Court to conclude a sentence of 6 years is appropriate, with 26 months credit for remand as imposed below.  2) The sentencing judge was directed to a very narrow range of authorities. In these circumstances this Court cannot find that the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would be helpful if a more detailed analysis along the lines suggested in R. v. Laberge (1995), 165 A.R. 375 had been given in order to enhance meaningful appellate review. However, this Court is not satisfied the judge failed to properly consider this factor. The Court is satisfied that the limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentence and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances.