The Globe and Mail, Saturday, October 23, 2004
By: Christie Blatchford
It was yesterday during the sentencing hearing for a couple convicted in the aggravated assault of their seven-week-old son that the lawyer for the baby’s mother, Edward Prutschi, read aloud from a letter his client had written.
In what turned out to be a document remarkable both for its psychobabble and self-interest – it was entitled “K’s feelings,” K being the woman and not her poor son – the 23-year-old mother referred to “the do’s and donts in parenting.”
A colleague ruefully passed me a note entitled “Parenting.”
Under Do’s was, “1., feed.” And under Don’ts was, “1., break legs.” It isn’t quite that simple, of course. These things rarely are. But surely close ought to count with gravely injured infants, just as it does with horseshoes and hand grenades. K and her 38-year-old hubby, R, who sat in court tenderly holding hands yesterday, were in June found guilty of inflicting six fractures on their then four-pound baby – or one break for almost every week of his life.
Given that the little guy, who was born prematurely and kept in hospital for weeks afterwards, was in his parents’ custody (care hardly seems the correct word) for only 10 days, it works out to an injury most days.
Baby boy M’s femur, or the big bone, in his left thigh was severed; he also had three shearing fractures on the right leg and one on the right shin – these are the types of injuries often seen in child abuse. His first rib, usually protected by the collarbone, was also fractured.
Experts testified at trial that precisely dating the injuries was difficult, but that at minimum, baby M had suffered terrible for at least 24 hours, when his parents kept a prearranged appointment at a clinic and the nurse there took one look at the baby’s left leg and rushed the threesome to the Hospital for Sick Children. An earlier suggestion, three days before, from a public-health nurse that the baby appeared to be in pain and that he should be seen by a doctor, went unheeded.
For their failure to seek immediate medical help, the parents were also convicted by the jury of what in law is failing to provide the “necessaries of life.”
Mr. Prutschi and the father’s lawyer, Aitan Lerner, are asking Mr. Justice Peter Jarvis of the Ontario Superior Court for a conditional sentence of six months, to be served at the couple’s home; prosecutor Cara Sweeny is seeking a jail term of between six months and four years.
Because the couple are appealing their convictions, Judge Jarvis delayed the actual sentencing until next week. Thus, if they are given a term of imprisonment, it can be put on hold pending the outcome. The parents can’t be named so as not to identify the little boy, who is now two years old and thriving in foster care at the Children’s Aid Society of Toronto.
There are some complicating factors for the judge.
The baby suffered from a bone-density problem, not uncommon with preemies, that meant it took less force to break his bones than those of a healthy infant. But clearly, in their verdict, the jurors nonetheless found that M’s parents were responsible for inflicting the fractures, and for not getting him help.
And the evidence heard at trial didn’t make it clear – the mother testified, the father didn’t – which parent was “the major actor,” as it’s called, and which one merely stood by and failed to protect the baby. The only possible explanation for M’s injuries offered by his mother was that as he slept on her chest during the critical night, at one point he jolted into the air such that she had to grab him back to her – rather, it sounds, like catching a leaping trout. Prosecution experts, however, said that would not account for the baby’s injuries.
Yet though the parents are in law considered equally culpable, treating them as such is tricky, because she is a first offender and he has a criminal record (not a long one, and not involving violence), and because he spent significantly longer time in pre-trial custody at the disreputable Toronto (Don) Jail than she did – and such hard time is usually given double credit by sentencing judges and sometimes even tripled, which means that by the latter measure, R has already served almost a year, while K has served only nine days.
So these are some of the legal issues – plus, of course, the usual balancing act that is the art of sentencing. Since neither parent has admitted hurting the child, they cannot now express remorse, nor have they. Mr. Lerner, however, said the father suffered abuse as a child himself, and that “while he doesn’t take responsibility” for injuring baby M, that the baby was harmed has “caused tremendous amount of anguish on his part” and that “he doesn’t stop chastising himself for not being more aware and perhaps more careful.”
The mother, for her part, said in her letter that, “Every day is a turning point. My thoughts and actions can propel me toward growth and can turn me down the road. Sometimes turning points are beginnings, as when I begin to ask for help instead of doing it alone. At other points turning points are ending.” She begged Judge Jarvis to let the sentence “not be my ending.”
K’s only veiled references to what happened to her son was a mention of “that unflattering point of departure” and a pledge to one day “parent M again! But right now,” she said, “I know I can’t. My choice has was taken away from me. I experienced the total bankruptcy of being a parent.”
Note, if you will, the passive voice: The baby somehow, darn it all, came to some harm, not that he was shaken or hit such that his wee bones broke; K’s choice was taken from her, not squandered. And besides, it can be a growth experience for K! And a learning moment for R, who as an abuse victim swore always to protect his own children!
At the moment, the parents have only supervised access to their son, but they intent to fight the efforts of the CAS to have the baby declared a Crown ward. K, as she told the judge, plans “to find out some of the ‘parenting laws’ and familiarize with them and put them into practice.” Why, they’re fighting for him on every front – appealing this convictions, going to family court.
“M,” his mummy told the judge in her letter, “gives me happiness and peace of mind, in a way that can only be explained as a great feeling.”
Well, that should settle it then.
If you need representation after being charged with a criminal offence, call a Toronto Criminal Lawyer from Bytensky Prutschi Shikhman located in Toronto, Ontario. Our criminal lawyers are available 24/7 to talk to you.