



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), (2.1), (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 in respect of a victim or a
witness, or on application of 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witness shall not be published in any document or broadcast or transmitted in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 of the opinion that the order is in the
interest of the proper administration of justice.

(2)     On application of the prosecutor
in respect of a justice system participant who is involved in proceedings in
respect of an offence referred to in subsection (2.1), or on application of
such a justice system participant, 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participant shall not be published in any document or broadcast or transmitted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 in the
interest of the proper administration of justice.

(2.1) The offences for the purposes of
subsection (2) are

(a) an offence under section 423.1,
467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
benefit of, at the direction of, or in association with, a criminal
organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
or

(d) an offence under subsection 21(1)
or section 23 of the
Security of Information Act
that is committed in
relation to an offence referred to in paragraph (c).

(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 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; 2015, c. 13, s. 19

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. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.J., 2018 ONCA 708

DATE: 20180829

DOCKET: C63478 & C64369

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.J.

Appellant

Richard Litkowski, for the appellant

Hannah Freeman, for the respondent

Heard: August 22, 2018

On appeal from the conviction entered on November 3, 2016
and the sentence imposed on February 16, 2017 by Justice Richard A. Lococo of
the Superior Court of Justice, sitting with a jury.



REASONS FOR DECISION


Overview

[1]

Following a two-month jury trial, the
appellant and
her previous boyfriend were found guilty of criminal negligence causing bodily
harm. They each received a two-year sentence on the criminal negligence count. The
appellant was also found guilty of failing to provide the necessaries of life,
for which she received a 12-month concurrent sentence. The victim was her 20-month-old
child.

[2]

The appellant advances an in-person conviction
appeal, assisted by Mr. Litkowski as duty counsel, and a solicitor sentence
appeal. We gave our decision at the conclusion of the hearing, dismissing the
conviction appeal, except to the extent of entering a stay of proceedings on
the failing to provide the necessaries count. We also dismissed the sentence
appeal. These are the reasons for that result.

The Conviction Appeal

[3]

The conviction appeal raises two grounds. The
appellant contends: (a) that the trial judge erred in his instructions to the
jury regarding one of the elements of failing to provide the necessaries of
life; and (b) that the finding of guilt on the failing to provide the
necessaries count should have been stayed pursuant to the principles in
R.
v. Kienapple
, [1975] 1 S.C.R. 729
. We disagree with the
first submission, but agree with the second.

[4]

The first ground of appeal relates to the trial
judges instruction to the jury that endangering the life of another person
means to put that person in a situation or a condition that
could
cause the person to die (emphasis
added). The appellant argues that the use of the word could, instead of the
word would, constitutes a misdirection.

[5]

Considered in context, we see no error in the charge
on this point. The trial judge was simply explaining to the jury how to
approach the question regarding whether the childs life had been endangered by
the failure to provide the necessaries of life. The relevant portion of the passage
reads:

The next question is: Did the failure to
provide necessaries of life endanger [the childs] life?...

[T]he Crown [must] prove that [the] conduct
of the accused in failing to provide necessaries of life for [the child]
endangered her life. To endanger the life of another person is to put that
person in a situation or a condition that
could
cause the person to die. [Emphasis added.]



[6]

The trial judge went on to correctly explain
that it is not sufficient for the Crown to prove simply that the childs life
was actually in danger as a result of the failure to provide the necessaries
of life. The Crown had to also prove that it [was] objectively foreseeable
that the failure to provide the necessaries of life
would
lead to a risk of danger to [the
childs] life (emphasis added). The jury was instructed that, in order to be
satisfied of this essential element, they had to be satisfied that a
reasonably prudent person in the accused[s] circumstances
would
have foreseen that his or her
failure
would
lead to a
risk of danger to [the childs] life (emphasis added). This instruction was
repeated on multiple occasions.

[7]

The jury would have understood that the childs
life had to be placed in actual danger (a situation that could cause the person
to die)
and

that it was
objectively foreseeable that the failure to provide the necessaries of life 
would
lead to a risk of danger to the
life of the child (emphasis added):
R. v. Naglik,
[1993] 3 S.C.R. 122, at p. 143;
R. v. J.F.,
2008 SCC 60, [2008] 3 S.C.R. 215, at para. 8. Considered in the context
of the charge as a whole, these instructions do not reflect prejudicial error.

[8]

As for the second ground of appeal, we agree
with duty counsel that the trial judge erred by not entering a conditional stay
of proceedings on the failing to provide the necessaries of life count. Crown
counsel also agrees. There was a clear factual and legal nexus between the
criminal negligence and failing to provide the necessaries of life counts.
Indeed, the latter was entirely subsumed in the former. Applying the
Kienapple
principle in this context, where convictions for both
criminal negligence and failing to provide the necessaries of life have been
entered, courts have systematically recorded a conviction of the criminal
negligence, as the more serious of the two offences, and entered a stay on the
charge of failure to provide the necessaries of life:
J.F.,
at para. 13. We have been provided with no reason to depart from
this reasonable approach. Accordingly, we would set aside the conviction on the
failing to provide the necessaries of life count and enter a conditional stay
of proceedings in its place.

The Sentence Appeal

[9]

The appellant also appeals from sentence. As
this was a jury trial, the sentencing judge was required to make some factual findings,
the most significant of which was that the appellants co-accused perpetrated
the actual assaults. Despite that finding, the trial judge determined that
there was no principled basis for imposing different terms of imprisonment on
the appellant and her co-accused.

[10]

As her primary ground of appeal, the appellant
argues that the trial judge erred in failing to distinguish her from her co-accused.
She contends that because her co-accused inflicted the actual assaults, she
should have received a lower sentence than her co-accused.  She also points to
some other distinguishing factors, including that her co-accused had a criminal
record.

[11]

Despite Mr. Litkowskis very able submissions,
we do not agree that the trial judge was duty bound to impose a lower sentence
on the appellant.

[12]

The trial judge was alive to the fact that the
appellants co-accused actually administered the assaults and he was alive to
the fact that he needed to consider the two accused separately. In the end,
though, he came to the conclusion that they should be sentenced to the same
term. In coming to that conclusion, the trial judge highlighted the fact that
there was no principled basis for imposing different terms because he saw
their degree of culpability as comparable. The trial judge found that, although
the appellants co-accused actually committed the assaults, she failed in her
duties as a mother to protect her [child] from harm.

[13]

The trial judge only came to that conclusion
after having extensively reviewed the record, including the factual
underpinnings of the offence. Those underpinnings included the fact that the
abuse had been ongoing for up to a few weeks prior to the culminating event
that led to an ambulance being called. On that day, the appellant had left the
child alone with her co-accused. Upon admission to the hospital, it was
discovered that the child had a lacerated liver, pelvic fracture, and a
subdural haematoma. Importantly, a CT scan revealed that the child had earlier
suffered a subdural haematoma and a rib fracture that were likely incurred in
the previous two to three week period. As the trial judge noted in his reasons
for sentence, it would have been obvious to the appellant that her child was
being harmed by someone. It was open to the trial judge to arrive upon that
factual conclusion. Bearing that conclusion in mind, and having regard to the
appellants heightened position of trust in relation to her young daughter, we
would defer to the trial judges determination that the appellant and her
co-accuseds level of culpability were comparable.

[14]

In addition, although the appellant is right to
point out that her co-accused had a criminal record, and she did not, the trial
judge turned his mind to that fact. He also observed, correctly in our view,
that the co-accuseds unrelated criminal record was from almost 20 years
previous (the last entry being in 1998), while the co-accused had been a
teenager. In these circumstances, it was open to the trial judge to treat the
co-accuseds record as being of minimal value in distinguishing between the two
accused he had to sentence.

[15]

The appellant also maintains that a two-year
sentence was demonstrably unfit. We disagree. The trial judge carefully
reviewed the relevant sentencing principles. Having regard to the circumstances
of this case, he correctly concluded that the predominant sentencing principles
were denunciation and deterrence:
R. v. R. (W.)
(2004), 197 C.C.C. (3d) 566 (Ont. C.A.), at paras. 14-16, 30. He considered
the appellants background and the strides she has made since the offence. He
reviewed all mitigating and aggravating factors. Having done so, he determined
that a penitentiary term was required. It cannot be said that the trial judge
exercised his discretion unreasonably or that the sentence is demonstrably
unfit:
R. v. Lacasse,
2015 SCC 64, [2015] 3
S.C.R. 1089, at para. 49.

[16]

The appellant also advances fresh evidence to
demonstrate that she has made additional significant strides since she was
sentenced. We accept that the appellant has made strides while incarcerated, and
has continued to make strides while on bail, including improving the level of her
education. By all accounts, it appears that she is dedicated to turning her
life around. Undoubtedly, this is a factor that will be taken into account in
the determination of her release date. Despite that fact, we see no error in
the trial judges approach to the sentencing.

Conclusion

[17]

We dismiss the conviction appeal, except to the
extent of setting aside the conviction for failing to provide the necessaries
of life and substituting a conditional stay in its place. We grant leave to
appeal sentence, but dismiss the sentence appeal from the criminal negligence
count.

David Watt J.A

Grant Huscroft J.A.
Fairburn J.A.


