



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)      Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)      On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)      An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)      An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)      The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)      In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)      An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)      Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity is
    protected by the order. 205, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.J., 2017 ONCA 740

DATE: 20170922

DOCKET: C63001

Pardu, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.J.

Appellant

Raymond Boggs, for the appellant

Karen Shai, for the respondent

Heard: September 19, 2017

On appeal from the sentence imposed on July 31, 2015 by
    Justice J. Baltman of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant beat her three year old daughter
    to death. She was convicted of manslaughter and appeals from the ten year
    sentence imposed by the trial judge.

[2]

She submits that the trial judge erred in the
    following respects:

1.

She failed to give adequate credit for stringent bail conditions.

2.

She penalized the appellant for the letters of support written by her
    family members.

3.

She treated the absence of remorse as an aggravating factor.

4.

She failed
to consider the immigration
    consequences of the sentence.

[3]

We do not accept that the sentencing judge
    erred. There is no basis to conclude that the sentence imposed was demonstrably
    unfit.

[4]

This was a brutal killing. The force applied to
    the childs head was of such a degree that the childs head was swollen to the
    size of a football, and brain tissue was leaking from her ear. This injury took
    place in the context of an older skull fracture which occurred within weeks or
    a few months before her death. She had other fractures to her vertebrae and
    rib, and many other bruises, scars and fractures on her arms, thighs, ribs and
    back.

[5]

The appellant was almost exclusively responsible
    for the care of the child.

[6]

At trial the defence suggested a five year
    sentence; the Crown sought a 15 year term.

[7]

There were no mitigating factors such as mental
    illness having any impact on the appellants culpability.

[8]

The trial judge gave the appellant credit for
    pretrial custody at 7 months and a further 3 months in addition to reflect the
    restrictions imposed by the bail conditions. The trial judge refused further
    credit indicating that the appellant had breached certain bail conditions and
    that there was no evidence about the impact of the bail conditions on the
    appellants ability to carry on normal relationships, employment and activity. The
    appellant focuses on the hardship caused by the enforced separation from her
    husband and other children, however the husband and other children moved to
    Alberta about a year after the appellant was released on bail. She was allowed
    to communicate with him by Skype 14 months after release on bail. The appellant
    submits that the breaches of bail conditions were minor and that she did not
    deliberately set about to breach the conditions. At trial defence counsel
    sought an 8 month credit to reflect the constraints imposed by the bail
    conditions; on appeal counsel asks for 27 months credit for the 18 months on
    bail. We see no error in the trial judges assessment of the impact of the bail
    conditions.

[9]

The letters from family members filed in support
    of the appellant suggested that she was an excellent parent who would never
    harm her children. The trial judge was right to give these letters little
    weight, given the extent and nature of the injuries suffered by the victim.

[10]

The trial judge noted that the appellant did not
    have the benefit of the mitigating factor of remorse, a factor which had
    attenuated the sentence imposed in other cases to which she had been referred.
    She did not err in making this observation.

[11]

The trial judge referred to the likely
    deportation of the appellant. She noted that it was impossible to predict the
    outcome of any ministerial decision on compassionate grounds, but indicated she
    would proceed on the basis that the appellant would be deported and gave that
    factor some modest weight. This offence was so serious that the likelihood of
    deportation would have had no impact on the sentence.

[12]

Accordingly, for these reasons, leave to appeal
    is granted but the appeal from sentence is dismissed.

G.
    Pardu J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.


