R. v. M.C.N.,

• Judge: Côté, Picard, O'Brien, Martin and Watson, JJ.A.
• Neutral Citation: 2012 ABCA 158
• Citation: 2012 ABCA 158,(2012), 524 A.R. 366,[2012] 12 WWR 86,524 AR 366,68 Alta LR (5th) 1,[2012] AJ No 522 (QL),545 WAC 366,[2012] A.J. No 522 (QL),545 W.A.C. 366,(2012), 524 AR 366,524 A.R. 366
• Date: 28 May 2012
• Court: Court of Appeal (Alberta)

R. v. M.C.N. (2012), 524 A.R. 366; 545 W.A.C. 366 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.133

Her Majesty the Queen (appellant) v. M.C.N. (respondent)

(1101-0060-A; 2012 ABCA 158)

Indexed As: R. v. M.C.N.

Alberta Court of Appeal

Côté, Picard, O'Brien, Martin and Watson, JJ.A.

May 28, 2012.

Summary:

The accused was convicted of aggravated assault and failing to provide the necessities of life and was sentenced to 90 days' intermittent imprisonment and two years' probation. The Crown appealed the sentence and applied for leave to have the judgments in R. v. Dosser (2010, C.A.) and R. v. M.J.S. (2006, C.A.) reconsidered.

The Alberta Court of Appeal, in a judgment reported at 510 A.R. 188; 527 W.A.C. 188, granted leave to have the judgments reconsidered.

The Alberta Court of Appeal, O'Brien and Martin, JJ.A., dissenting in part, held that the sentencing judge erred in assessing the seriousness of the offence and the accused's moral blameworthiness, and by failing to give proper consideration to the objectives of denunciation and deterrence. Those shortcomings might be explained by the judge's reliance on the flawed framework established in R. v. Evans (1996, Prov. Ct.) which the reconsideration cases appeared to endorse. After setting out a new framework, the court allowed the Crown's appeal and sentenced the accused to three years' imprisonment for the aggravated assault, and six months' consecutive for failing to provide the necessities of life. The accused was to be credited with the full legal effect of the 90 day intermittent imprisonment which had already been served. The court affirmed the corollary orders made by the sentencing judge.

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 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - The Alberta Court of Appeal, in setting out a framework for sentencing in child abuse cases, stated that what was required was adherence to the applicable sentencing principles, particularly the proportionality principle, keeping in mind the primary objectives of denunciation and deterrence (Criminal Code, s. 718.01) - That necessitated that particular attention be given to the culpability associated with both the crime's physical and mental dimensions - Perhaps the most important consideration when assessing moral culpability of the actus reus was the child's exposure to harm - It was useful to begin by determining the nature of the harm - For example, was it bodily harm as defined in s. 2 of the Code or a more serious form of harm or suffering from which the child might not completely recover - Finally, was it likely to endanger the child's life - As to the level of culpability arising from the mens rea, it was necessary to determine the extent to which the harm was foreseeable, the risk or likelihood that the offender's conduct would give rise to the harm, as well as the offender's state of mind or awareness - The sentencing judge had to also consider whether the conduct involved other factors, in particular those referenced in ss. 718.2(a)(ii.1) and 718.2(a)(iii) - The use of a weapon or confinement, or use of potentially harmful substances such as alcohol or drugs, were also important factors, along with the involvement of third parties, or the multiplicity of offences over time or the multiplicity of victims - The list was not exhaustive - The extent to which the conduct's underlying motive was treated as either an aggravating or mitigating factor was to be decided on a case by case basis - The fact that the offender's personal circumstances were not represented in the analysis did not suggest that they were not relevant - In evaluating the degree of responsibility, a court had to have regard to the offender's personal circumstances (s. 718.2) - Those circumstances necessarily formed part of the considerations leading to a "just sanction" under s. 718 - See paragraphs 29 to 40.

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - The accused pleaded guilty to aggravated assault and failing to provide the necessities of life - On February 22, 2010, he put his nine month old daughter's feet in recently boiled water to see how she would react - The accused put slippers on her to cover the resulting redness - The mother returned home and noticed her daughter's distress - When the daughter's slippers were removed, her feet were blistering - One was filled with blood and other fluid - The accused suggested that she had friction burns - The mother called her doctor but did not get an appointment until March 8, 2010 - From February 22-25, the daughter's feet deteriorated and the mother was persuaded by the accused not to take her to a doctor - On February 26, 2010, the mother took her to a doctor and was referred to a hospital - The daughter was diagnosed as having third degree (full thickness) burns to both feet - The sentencing judge sentenced the accused to a total of 90 days' intermittent imprisonment and two years' probation - The Alberta Court of Appeal allowed the Crown's appeal and increased the sentence to three years' imprisonment for the assault and six months' consecutive for failing to provide necessaries - See paragraphs 41 to 47.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The Alberta Court of Appeal, in setting out a framework for sentencing cases involving child abuse, refused to establish a starting point - The court stated that "We note that [R. v. J.L.M.A. (Alta. C.A.)] did not find informative or helpful a sentencing assessment derived solely from the comparison of sentencing numbers. Not every assembly of cases, even those thought to be factually similar, will produce an accurate picture of a proper range. As was said in [R. v. Stone (S.C.C.)], the 'logic' must be apparent. Courts must be wary of creating idiosyncratic 'local ranges' in which variations are determined by isolating one or two oversimplified factors, and cobbling together a range or category. Nonetheless, a starting point approach may be possible for offence categories that can be described as 'of a type,' and thus have sufficient common definitive elements of actus reus and mens rea in their commission to permit identification of starting point sentences. However, we are not persuaded that that approach is appropriate here." - See paragraph 29.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See second Criminal Law - Topic 5833.1 ].

Criminal Law - Topic 5968

Sentence - Failure to provide necessaries of life - [See second Criminal Law - Topic 5833.1 ].

Cases Noticed:

R. v. M.J.S. (2006), 397 A.R. 356; 384 W.A.C. 356; 2006 ABCA 176, not folld. [para. 2].

R. v. C.R.D. (2010), 477 A.R. 241; 483 W.A.C. 241; 2010 ABCA 128, not folld. [para. 2].

R. v. Evans (G.K.) (1996), 182 A.R. 21 (Prov. Ct.), not folld. [para. 3]

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 8].

R. v. MacDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 8].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 9].

R. v. Laberge (K.K.) (1995), 165 A.R. 375; 89 W.A.C. 375; 1995 ABCA 196, refd to. [para. 9].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 25, footnote 1].

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. 29].

R. v. Smith (C.C.) (2005), 376 A.R. 389; 360 W.A.C. 389; 2005 ABCA 404, refd to. [paras. 44, 64].

R. v. Tate (D.J.) (2005), 367 A.R. 170; 346 W.A.C. 170; 2005 ABCA 217, refd to. [para. 44].

R. v. McNall (B.A.) (1995), 169 A.R. 162; 97 W.A.C. 162 (C.A.), refd to. [paras. 44, 64].

R. v. Browning, [1989] O.J. No. 231 (Dist. Ct.), refd to. [paras. 44, 64].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 51].

R. v. J.R.B., [2003] N.J. No. 9 (Prov. Ct.), refd to. [para. 60].

R. v. S.R., [1993] O.J. No. 1108 (Gen. Div.), refd to. [para. 60].

R. v. J.M.B. (2005), 249 Nfld. & P.E.I.R. 105; 743 A.P.R. 105 (N.L.T.D.), refd to. [para. 60].

R. v. Firlotte (S.D.) (1998), 203 N.B.R.(2d) 177; 518 A.P.R. 177 (Prov. Ct.), refd to. [para. 64].

Authors and Works Noticed:

Kerans, R.P., and Willey, Kim M., Standards of Review Employed by Appellate Courts (2nd Ed. 2006), pp. 147, 148 [para. 51].

Counsel:

J. Antonio, for the appellant;

M.C. Stephensen, for the respondent.

This appeal was heard by Côté, Picard, O'Brien, Martin and Watson, JJ.A., of the Alberta Court of Appeal. The court released reasons for judgment reserved on May 28, 2012, with the following opinions:

Watson, J.A. (Côté, Picard, JJ.A., concurring) - see paragraphs 1 to 47;

O'Brien, J.A., dissenting in part - see paragraphs 48 to 61;

Martin, J.A., dissenting in part - see paragraphs 62 to 65.