R. v. K.S.H., 2015 ABCA 370

• Judge: Picard, Bielby and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 26, 2015
• Citations: 2015 ABCA 370;[2015] A.R. TBEd. DE.002;2015 ABCA 369

R. v. K.S.H., [2015] A.R. TBEd. DE.002

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.002

Her Majesty the Queen (appellant) v. K.S.H. (respondent)

(1503-0128-A; 2015 ABCA 369; 2015 ABCA 370)

Indexed As: R. v. K.S.H.

Alberta Court of Appeal

Picard, Bielby and Wakeling, JJ.A.

November 26, 2015.

Summary:

The accused father pleaded guilty to aggravated assault. The father threw his 13 week old son onto a bed with sufficient force to cause the son to bounce up, flip over and strike his head on a metal chair frame. The father waited two hours before telling his wife of the incident. The son, who was unresponsive when 911 was called, suffered a severe brain injury. The trial judge sentenced the accused to six months' imprisonment followed by two years' probation and ancillary orders. The Crown appealed, arguing that the sentence inadequately reflected denunciation and deterrence and was demonstrably unfit.

The Alberta Court of Appeal, Wakeling, J.A., dissenting, allowed the appeal and substituted a sentence of three years' imprisonment.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offence involving breach of trust - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5845.4

Sentencing - Considerations on imposing sentence - Wishes of victim's family - [See Criminal Law - Topic 5938 ].

Criminal Law - Topic 5938

Sentence - Aggravated assault - The 38 year old accused father threw his 13 week old son onto a bed with sufficient force to cause the son to bounce, flip and strike his head on a metal chair frame - The father waited two hours to tell his wife and obtain medical assistance - The son, who was unresponsive when help was sought, suffered a severe brain injury - Over 2.5 years later, the son's motor skills seemed unaffected, but he was about 25% cognitively delayed and it was too early to determine whether his cognitive or behavioural development was affected - The trial judge found that objectively the father should have been aware of the terrible risk of his actions, but that he did not intend to harm his son - The father acted out of character in response to stress that he had not sought help for - He accepted responsibility and took steps to rehabilitate himself - He was no longer a danger to his children - His wife forgave him - The father pleaded guilty to aggravated assault and was sentenced to six months' imprisonment followed by two years' probation - The Alberta Court of Appeal allowed the Crown's sentence appeal and substituted a sentence of three years' imprisonment - The trial judge overemphasized the father's lack of subjective intent to harm his son and underemphasized the denunciation and deterrence required in sentencing for child abuse - The father's moral culpability was greater than that attributed to him by the trial judge due to the lack of subjective intent to injure - Whether the son suffered a permanent brain injury remained uncertain - The trial judge overemphasized that the son was "progressing well" - The father was in a position of trust respecting an infant and delayed getting medical help for two hours after he knew his son was injured - The latter was a significant factor in increasing the sentence required - The trial judge also overemphasized that it would be in the family's best interest that the father be imprisoned for a minimal time to allow for family reunification - Family reunification could only ever be relevant to the extent that it related to the accused's rehabilitation - The positive aspects of the accused's life (absence of stressors normally involved in child abuse cases) such as being steadily employed, in a good marriage, no substance abuse or mental health issues, "can be viewed as increasing his moral blameworthiness" - Six months' imprisonment was a demonstrably unfit sentence - See paragraphs 1 to 43.

Cases Noticed:

R. v. Quinn (C.A.), [2015] A.R. TBEd. JL.099; 2015 ABCA 250, refd to. [para. 8].

R. v. Deck (B.S.) (2006), 384 A.R. 106; 367 W.A.C. 106; 2006 ABCA 92, refd to. [para. 8].

R. v. Evans (G.K.) (1996), 182 A.R. 21 (Prov. Ct.), refd to. [para. 9].

R. v. Nickel - see R. v. M.C.N.

R. v. M.C.N. (2012), 524 A.R. 366; 545 W.A.C. 366; 2012 ABCA 158, refd to. [para. 10].

R. v. B.J.G. (2013), 556 A.R. 6; 584 W.A.C. 6; 2013 ABCA 260, refd to. [para. 16].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 23].

R. v. Murphy (D.D.) (2014), 593 A.R. 60; 637 W.A.C. 60; 317 C.C.C.(3d) 314; 2014 ABCA 409, refd to. [para. 84, footnote 37].

R. v. Ryan (G.R.), [2015] A.R. TBEd. SE.039; 2015 ABCA 286, refd to. [para. 84, footnote 38].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375; 1995 ABCA 196, refd to. [para. 84, footnote 39].

R. v. Jurisic (1998), 45 N.S.W.L.R. 209; 1998 NSWSC 423 (C.C.A.), refd to. [para. 90, footnote 43].

R. v. Shular (R.) (2014), 577 A.R. 294; 613 W.A.C. 294; 67 M.V.R.(6th) 208; 2014 ABCA 241, refd to. [para. 90, footnote 45].

R. v. Frenette (P.M.) (1999), 237 A.R. 359; 197 W.A.C. 359; 1999 ABCA 225, refd to. [para. 92, footnote 48].

R. v. Signato (1998), 194 C.L.R. 656; 1998 HCA 74, refd to. [para. 92, footnote 48].

R. v. Olsen (L.) and Podniewicz (M.) (1999), 116 O.A.C. 357; 131 C.C.C.(3d) 355 (C.A.), refd to. [para. 93, footnote 49].

R. v. Mitchell (1987), 81 N.S.R.(2d) 57; 203 A.P.R. 57; 39 C.C.C.(3d) 141 (C.A.), refd to. [para. 109, footnote 63].

R. v. G.S.J., [2007] O.J. No. 5079 (Sup. Ct.), refd to. [para. 109, footnote 63].

R. v. Bottineau (E.) (2011), 276 O.A.C. 173; 269 C.C.C.(3d) 227; 2011 ONCA 194, refd to. [para. 109, footnote 64].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449; 2009 ONCA 910, refd to. [para. 109, footnote 64].

R. v. Browning, [1989] O.J. No. 231 (Dist. Ct.), refd to. [para. 112, footnote 67].

R. v. M.J.S. (2006), 397 A.R. 356; 384 W.A.C. 356; 2006 ABCA 176, refd to. [para. 113, footnote 69].

R. v. McNall (B.A.) (1995), 169 A.R. 162; 97 W.A.C. 162; 1995 ABCA 201, refd to. [para. 113, footnote 69].

R. v. S.G., [2011] O.T.C. Uned. 1720; 2011 ONSC 1720, refd to. [para. 113, footnote 69].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 264 C.C.C.(3d) 134; 2010 ABCA 363, refd to. [para. 119, footnote 75].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Hili (2010), 242 C.L.R. 520; 2010 HCA 45, refd to. [para. 120, footnote 76].

Gall v. United States (2007), 522 U.S. 38, refd to. [para. 120, footnote 76].

R. v. Buffrey, 14 Cr. App. R.(S.) 511, refd to. [para. 131, footnote 84].

R. v. Spina (M.) (1997), 200 A.R. 133; 146 W.A.C. 133 (C.A.), refd to. [para. 133, footnote 88].

R. v. Bazgan (C.L.) (1997), 209 A.R. 157; 160 W.A.C. 157 (C.A.), refd to. [para. 136, footnote 91].

R. v. Burchnall and Dumont (1980), 24 A.R. 17 (C.A.), refd to. [para. 136, footnote 91].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 136, footnote 91].

R. v. Hadida (R.), [2001] O.A.C. Uned. 40 (C.A.), refd to. [para. 139, footnote 93].

R. v. Gallant (J.J.), [2004] A.R. Uned. 84; 2004 ABCA 202, refd to. [para. 140, footnote 94].

R. v. Dutchek (M.J.), [1998] A.R. Uned. 582 (C.A.), refd to. [para. 140, footnote 94].

R. v. Elliot (T.D.) (1997), 209 A.R. 73; 160 W.A.C. 73 (C.A.), refd to. [para. 140, footnote 94].

R. v. Byers (1985), 62 A.R. 198 (C.A.), refd to. [para. 140, footnote 94].

Counsel:

J.A. Antonio, for the appellant;

D.F. Bullerwell, for the respondent.

This appeal was heard on October 21, 2015, before Picard, Bielby and Wakeling, JJ.A., of the Alberta Court of Appeal.

On November 26, 2015, the judgment of the court was delivered and the following memorandums of judgment were filed:

Picard and Bielby, JJ.A. - see paragraphs 1 to 45;

Wakeling, J.A., dissenting - see paragraphs 46 to 142.