S.C.C. No. 02786
NOVA SCOTIA COURT OF APPEAL
Matthews, Freeman and Roscoe, JJ.A.
Cite as: R. v. A.L.I., 1993 NSCA 102
BETWEEN:
HER MAJESTY THE QUEEN ) Gordon Gale, Q.C.
) for the Appellant
Appellant )
)
) W. Andrew Ionson
- and - ) for the Respondents
)
)
A. L. I. and )
A. R. M. )
)
Respondents )
) Appeal Heard:
) March 18, 1993
)
) Judgment Delivered:
) March 18, 1993
)
)
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: Appeal allowed and sentence varied to eight months incarceration for each of the respondents to be followed by the remainder of the probation order as set by the trial judge, per oral reasons for judgment of Roscoe, J.A.; Matthews and Freeman, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
ROSCOE, J.A.:
The respondents pled guilty to criminal negligence causing bodily harm to their three month old daughter. The Crown appeals from the suspended sentence with two years probation imposed by the trial judge.
The injuries suffered by the infant at the hands of the respondents included multiple fractures of the femur, fractures of the fourth and ninth ribs, and bruises on the buttocks and over the eye. At the time of the medical examination which led to these charges, the broken leg appeared to be a recent injury while the fractured ribs were thought to be approximately three weeks old which indicates that the infant was subjected to at least two incidents of severe trauma.
The infant has, since the incident giving rise to these charges, been committed to the permanent care of the child welfare authorities and, subsequently, adopted by the maternal grandparents. The respondents now have a second child who has also been apprehended and for which a permanent placement order has also been made. At the time of sentencing the second infant was in the care of the respondents subject to supervision.
The male respondent is 22 years old and has had a history of behavioral problems and social difficulties and has a Grade 6 education. He has worked sporadically at short-term jobs but has, for the most part, been supported by social assistance. He has a record as a young offender which includes three theft convictions and a forgery conviction. As well, he has two theft convictions as an adult. The author of the pre-sentence report indicated he was not a good candidate for community supervision. The female respondent is 20 years old and has a Grade 8 education. She, as well, has had numerous short-term positions but has been mainly supported on social assistance. She has one prior conviction for theft.
The respondents testified at the sentencing hearing and the explanation offered for the infant's broken leg was that the respondents were arguing over whether the female respondent could take the baby to visit her mother. The male respondent did not want her to do that and basically the couple had a tug of war involving the baby for somewhere between two and five minutes. With respect to the rib fractures, the explanation offered was that the female respondent was taking a shower with the baby at which time she dropped the baby. In her effort to catch the child, she grabbed her around her chest. The medical report cast doubt on that explanation.
The fact situation in this case is similar to that of R. v. R.G. (1989), 94 N.S.R. (2d) 336. In that case, a three month old child suffered severe bruising, a fractured femur and several burns on her cheeks, toes, fingers, and knee. Matthews J.A. said at p. 338-9 (paras. 5 to 10):
" The respondent gave no detailed explanation respecting the cause of the injuries, but he did plead guilty to the most serious form of negligence known in law; criminal negligence. That offence is defined in the present s. 219 of the Code:
'219(1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, "duty" means a duty imposed by law.'
The respondent is the father of a helpless infant, aged three and one-half months. He was in a position of trust. The child had a right to look to him for protection from abuse. He had a corresponding duty to protect the child from such abuse, not engage in it.
The respondent is 22 years old, with a Grade VIII education and, at the material times here, living in a common law relationship with the mother of the child. He has a record of four previous offences, all theft and forgery related. His presentence report, although containing some good features, on the whole, is not positive.
The respondent was represented by counsel at trial. Respondent's admission of guilt substantiates the opinion of the pediatrician that the injuries suffered by the child were as a result of severe trauma, and further that they could not have occurred in the manner the respondent described. He was, in fact and by his own admission, not simply careless but guilty of wanton and reckless disregard for the life and safety of his infant daughter. The sentencing process must reflect society's repudiation of such reprehensible conduct. Protection of the public and both specific and general deterrence must be stressed. With respect, the trial judge apparently did not take these factors into consideration sufficiently when imposing sentence.
We are required by the provisions of s. 687(1) of the Code to consider the fitness of the sentence under appeal. It is our unanimous opinion that it is not fit. It is clearly inadequate.
We grant leave to appeal, allow the appeal and vary the sentence to 15 months' incarceration to be followed by probation for 18 months under the terms and conditions as set by the trial judge. The respondent is to be credited with time already served on the sentence."
While the injuries to the child in R.G. were more serious than those in this case, the comments of Matthews J.A. apply equally to this case. Taking into account all the circumstances including the mitigating factors, we would allow the appeal and vary the sentence to eight months incarceration for each of the respondents to be followed by the remainder of the probation order as set by the trial judge.
J.A.
Concurred in:
Matthews, J.A.
Freeman, J.A.