Date:
1999-04-22
File number:
C30946
Other citations:
118 OAC 354 — 135 CCC (3d) 338 —[1999] OJ No 1308 (QL)
Citation:
R. v. J.H., 1999 CanLII 3710 (ON CA), <http://canlii.ca/t/1f9bx>, retrieved on 2019-07-23
DATE: 19990422 DOCKET: C30946 COURT OF APPEAL FOR ONTARIO WEILER, ROSENBERG and FELDMAN JJ.A. B E T W E E N : ) ) P. Andras Schreck HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Eric Siebenmorgen ) for the respondent J.H. ) ) Appellant ) Heard: March 31, 1999 ) On appeal from the sentence imposed by the Honourable Mr. Justice J. F. Hamilton dated July 22, 1998. ROSENBERG J.A.: [1] Following a trial before Hamilton J., the appellant was convicted of one count of administering a noxious substance. The facts of the offence are highly unusual. The noxious substance was cocaine and the victim was the appellant’s five-year-old son. Hamilton J. imposed a sentence of two years less one day imprisonment. The appellant appeals that sentence. THE FACTS [2] The commission of this offence is difficult to comprehend. It does not appear that the appellant bore any ill will towards her child or that she was unconcerned for the child’s welfare. Indeed, the presence of cocaine was detected in the child’s system because the appellant took him to the hospital. At best, the commission of this offence can only be understood within the context of the appellant’s appalling background and her serious addiction to crack cocaine. [3] The appellant and her younger brother first came to the attention of the Children’s Aid Society when the appellant was under two years of age because a neighbour reported that they were extremely thin and appeared neglected. There is no indication of any intervention by the Children’s Aid at that time. Children’s Aid was contacted again when the appellant was five years of age because a teacher noticed that the appellant had a black eye and red marks around her neck. The appellant’s mother admitted that she tried to strangle her. Children’s Aid became involved with the family. The children were physically and emotionally neglected. The home was filthy. Her mother completely rejected the appellant. She had to steal lunches at school to feed herself. [4] Finally, when the appellant was 12 years of age, her mother admitted that she could not manage her and she was placed in a group home. While the appellant was in the group home, her mother’s boyfriend became intoxicated while babysitting her younger brother. A fire somehow started in the home and the appellant’s brother died in the fire. The appellant was devastated by this loss and tried to avoid returning home after being discharged from the group home. Her mother insisted that the appellant return because she needed help with a new baby. The appellant ran away many times. When the appellant was 14 years of age, she was placed in another residence by Children’s Aid. Attempts to place the appellant in foster homes failed because the appellant was using drugs and alcohol. When she was 15, the Crown wardship was terminated and the appellant went to live with a boyfriend. The appellant remained with this man for the next seven years despite his verbal and physical abuse. [5] The appellant then began an on-again-off-again relationship with D.W.. D.W. is the father of the victim, who was born in October 1991. The appellant has been addicted to drugs since she was 15 years of age. She has been addicted to crack cocaine for a substantial period of time and was using crack at the time of the birth of her son. It will come as no surprise that the child was difficult to manage and that the appellant had poor parenting skills. The appellant took the child to several hospitals to get help for him. She was unsuccessful. She decided to take matters into her own hands and began giving the child Ritalin that she had purchased “on the street”. For at least a year prior to June 1996, the appellant was administering Ritalin to the child. From
her point of view, it helped control the child’s behaviour. [6] In May 1995, the appellant took the child to the Hospital for Sick Children because of concerns about his speech and behaviour. The child was diagnosed with “global developmental delay”. In August 1995, the appellant began to use the services of a babysitter. She gave the babysitter Ritalin to administer
to the child. In April 1996, the babysitter’s older brother took the child to the Hospital for Sick Children because of a suspected overdose of Ritalin. There was no overdose, but a referral was made to the Hospital’s General Paediatric Clinic. The appellant kept the appointment and freely admitted that she had been giving Ritalin to the child. The appellant had been giving the child 40 mg. daily. This was much too high, even assuming Ritalin was required. The physician began a course of treatment to wean the child from the drug. The appellant initially refused to follow the course of treatment because she did not agree with it. It appears that social workers with the Hospital were able to convince the appellant to reduce the use of Ritalin and to continue treatment at the Hospital. On June 5, 1996, the appellant and D.W. took the child for an appointment at the Hospital. A urine sample was obtained from the child and this sample tested positive for cocaine. Children’s Aid and the police were contacted and the child was taken into care. [7] The appellant was charged with two counts of criminal negligence causing bodily harm and two counts of administering a
noxious substance in relation to Ritalin and cocaine. The appellant admitted using cocaine in her apartment but claimed that she took steps to ensure that the child would not be affected by the drug. The expert evidence, however, showed that not only had the child been exposed to a large amount of cocaine through second-hand smoke, but the evidence was suggestive of internal consumption. [8] The expert evidence could not establish that the child suffered bodily harm from the exposure to the cocaine, and the appellant was acquitted of the charge of criminal negligence causing bodily harm for administering it. Similarly, because
there was no referable evidence of bodily harm, the appellant was acquitted on the count of criminal negligence causing bodily harm for administering the Ritalin. In addition, the appellant was
acquitted on the charge of administering a noxious substance on the Ritalin-related count. The trial judge was satisfied that the appellant did not administer the Ritalin with intent to
endanger the child’s life. He noted that once the appellant was made to understand that the use of the high dosages of street Ritalin would harm the child, she stopped giving it to him. [9] As for the charge of administering a noxious substance in relation to cocaine, the trial judge found that the high levels in the child’s system could not simply have been caused by exposure from the environment in the apartment. To quote the trial judge, “As [the appellant] is the only source, I find she must have administered the drug to him. I do not find he
obtained it from environmental sources.” While the trial judge must have rejected the appellant’s evidence that she took all possible care to keep cocaine away from her son, he made no finding as to how or why the appellant might have administered
the drug. [10] The appellant was 31 years of age at the time of the sentencing in July 1998. Remarkably, in view of her longstanding cocaine addiction, and her admission that she has been selling drugs and engaging in prostitution to feed this addiction, she had no prior criminal record. The appellant said that she had been in numerous treatment programmes, but had been unable to overcome her addiction. According to the pre-sentence report, she was not interested in taking any further treatment. In submissions, counsel for the appellant stated that the pre- sentence report was not accurate and the appellant was willing to undertake treatment as a term of a disposition imposed by the trial judge. On the other hand, it was a term of her bail that she attend for treatment, and there was no evidence that she had complied with that term.1 [11] The appellant’s child was placed in a foster home following her arrest. The appellant visited the child until several weeks prior to sentencing and at the time of sentencing appeared favourably disposed to the child being adopted. [12] At trial, counsel for the appellant suggested that the appellant receive an 18-month conditional sentence. The Crown sought a four-year penitentiary sentence. THE REASONS FOR SENTENCE [13] The trial judge was of the view that the appellant’s prospects for rehabilitation were not good in view of the unsuccessful attempts at treatment for drug addiction. After a brief review of the facts, the trial judge gave the following reasons for sentence: I have considered a conditional sentence. I have concluded a conditional sentence would not be consistent with the fundamental purpose of the principles of sentencing as set out in s. 718 of the Criminal Code. The nature and the circumstances of the offence are such that a period of incarceration is required to express denunciation and deterrence both generally and specifically. There is a denunciatory aspect in this offence of administering a noxious substance which overrides any entitlement to conditional sentence. Such conduct of giving a young child cocaine cannot be rewarded with a conditional sentence. The public would be outraged. This is a serious violation to the victim and Ms. J.H.’s conduct does not justify clemency. Any sentence I imposed must not only send a message to Ms. J.H. but to any other parent who might be tempted to. [Emphasis added.] [14] The trial judge imposed a sentence of two years less one day imprisonment. He did not impose any period of probation. FRESH EVIDENCE [15] With the consent of counsel for the respondent, the court received fresh evidence. The appellant’s child has been made a Crown ward and continues in foster care. The appellant has indicated that she will consent to the child’s adoption. [16] Since her sentencing, the appellant has been incarcerated at the Vanier Centre for Women. She successfully completed an anti- substance abuse course and a life skills course. She was found
smoking marijuana in the institution on one occasion. In November 1998, the appellant was assessed by an addiction counsellor with the Metro Addiction Assessment Referral Service. She has indicated her willingness to undertake the treatment programme recommended by the Service. [17] Margaret Flower is a registered nurse employed by the Metro Addiction Assessment Referral Service. She drew up a treatment plan for the appellant. Upon release, the appellant would be referred to the Addiction Research Foundation comprehensive outpatient therapy programme. While she is waiting for the treatment programme to start, the appellant would be provided with one-on-one counselling at the Metro Addiction Assessment Referral Service. [18] D.W. provided an affidavit. He is 43 years of age and self-employed. He states that he and the appellant are engaged to be married and plan to marry after she is released from custody. He confirms that they have agreed with the Children’s Aid Society to put the child up for adoption. He is supportive of the appellant and has continued to visit her at the Centre. He supports her plan to enter the treatment programme suggested by the Metro Addiction Assessment Referral Service. ANALYSIS [19] The appellant committed a very serious offence, endangering the life of her child. The circumstances under which she administered the cocaine to her child are largely unknown.
Despite the fact that the appellant was a first offender, this was an offence that required a term of imprisonment. However, it was also a case where the trial judge should have given serious consideration to the appellant being permitted to serve the sentence of imprisonment in the community under a conditional sentence order. While denunciation was an important objective, given the unique circumstance of the offence and the offender, general deterrence was of lesser importance. A conditional sentence was not necessarily inconsistent with the sentencing principles, provided appropriate conditions were imposed. The trial judge erred in principle in rejecting a conditional sentence on the theory that such a sentence would be a “reward” for giving cocaine to a child and that the appellant’s conduct does not justify “clemency”. The conditional sentence is neither a reward nor an exercise of clemency. It is a sentence of imprisonment to be served in the community under appropriate conditions. In this case, because of the appellant’s serious addiction those conditions would have had to have been strict. [20] Nevertheless, there were at least two real impediments to imposing a conditional sentence at the time the appellant was before Hamilton J. The appellant’s counsel stated that, contrary to the assertion in the pre-sentence report, the appellant was prepared to take treatment. However, he presented no material to show that there was a treatment programme available that would meet the appellant’s needs. In view of the many previous unsuccessful attempts at treatment, there was a heavy onus on the appellant and her counsel to address that issue. It was not sufficient for counsel to simply disagree with the opinion of the pre-sentence reporter. [21] Second, the question of risk to the community was a serious concern. Risk to the community within the meaning of s. 742.1 of the Criminal Code is not limited to offences against the person. Without treatment there was a substantial likelihood that the appellant would commit drug and other offences to maintain her addiction. I also have some concern whether it could be said that the appellant did not represent a danger to her child or other children at the time of sentencing. Again, without treatment, there was still a risk that the appellant might expose her child or Mr. W.’s other children to dangerous drugs. [22] However, there was a further error in principle that, in my view, requires this court to consider the fitness of the sentence in light of the fresh evidence. The trial judge erred in principle in placing emphasis only on the objectives of deterrence and denunciation. A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: R. v. Vandale and Maciejewski (1974), 1974 CanLII 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.).
[23] As pointed out, this appellant had no prior criminal record and rehabilitation should have been one of the principal considerations. It was inappropriate to reject the objective of rehabilitation simply because the appellant had previously tried treatment programmes before and failed, even when treatment was a term of her bail. I agree with Professor Manson’s comments in his article “Conditional Sentences: Courts of Appeal Debate the Principles” (1998), 15 C.R. (5th) 176 at 194:
Courts must accept that most hard core addicts who do succeed in overcoming addiction will try and fail a number of times. Accordingly, the first occasion of failure should not necessarily be viewed as an affront to the court which leads to re-instituting the term of imprisonment. [24] Although this was said in relation to breach of a conditional sentence order, it also applies to determining the length and manner of sentence. Accepting that at the time of sentencing, the appellant had not made out a case for a conditional sentence, the trial judge had to consider the appropriate blend of sentence options then available. A period of imprisonment followed by a lengthy period of probation directed to ensuring that the appellant received the appropriate treatment would have offered the best prospect for rehabilitation and thus protection of the public including the protection of the appellant’s child. Imposing a shorter term of imprisonment would also be consistent with the objective of denunciation, which was, as I have said, an important consideration. [25] In view of these errors in principle, this court must assess the fitness of the sentence, bearing in mind the fresh evidence. In my view, it would not be appropriate to impose a conditional sentence at this point. The appellant has now spent almost nine months of the sentence in prison. She is agreeable to taking treatment for her addiction in the community and has put forward a concrete plan to that end. She has some support in the community from D.W. and the Metro Addiction Assessment Referral Service. It appears that her child is receiving excellent care in the foster family and may soon be placed for adoption. The appropriate disposition at this point, in my view, is to reduce the sentence to time served and impose a lengthy period of probation. DISPOSITION [26] Accordingly, I would grant leave to appeal sentence, allow the appeal and reduce the sentence to time served and three years probation on the statutory terms and the following additional terms: 1. Report to a probation officer within two working days of her release from custody and thereafter when required by the probation officer; 2. Abstain from the consumption of drugs except in accordance with a medical prescription; 3. Abstain from owning, possessing or carrying a weapon; and 4. Participate actively in a treatment programme as recommended by Margaret Flower or such other person at the Metro Addiction Assessment Referral Service as designated by Ms. Flower. (signed) M. Rosenberg J.A. (signed) I agree K. M. Weiler J.A. (signed) I agree K. Feldman J.A. Released: April 22, 1999 _______________________________ 1 Fresh evidence admitted on the appeal indicates that prior to trial the appellant commenced a residential drug treatment but discontinued the treatment after approximately two months. |
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