R v McConnell, 2012 ABQB 369

Court of Queen ’ s Bench of Alberta Citation: R v McConnell, 2012 ABQB 369 Date: 20120604 Docket: 100218288Q1 Registry: Wetaskiwin Between: Her Majesty the Queen In Right of Alberta Crown - and - Allyson McConnell Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.G. Crighton _______________________________________________________ I. Introduction [ 1 ] Allyson McConnell was charged with second degree murder in the deaths of her two young sons: Connor, aged two and one- half years; and 10 month old Jayden.

I convicted her of manslaughter following her trial on those charges. My reasons for doing so are reported at R v McConnell , 2012 ABQB 263 . Many of the findings I made at trial are relevant to my determination of an appropriate sentence. [ 2 ] After hearing counsels' positions on sentence, I imposed a 10-year weapons prohibition on Ms. McConnell under s 109 of the Criminal Code and ordered her to provide a sample of her DNA in accordance with s 487.051 of the Code . In addition, I dealt with exhibits seized during the investigation and/or entered at trial.

[3] It remains for me to determine a fit and proper sentence in the circumstances of this case. II. General Principles Applicable to Sentence [4] Determining a proper sentence in a manslaughter case is one of the most difficult tasks a court will face. Manslaughter canrange from near accident to near murder. The available sentencing options extend from a suspended sentence to life imprisonment.

Thisrange of options is meant to reflect the different degrees of moral blameworthiness possible in manslaughter cases. [5] In this case, everyone who knew Allyson McConnell described her as a loving, caring and attentive mother to her two youngboys. Nevertheless, she did an unspeakable thing - she drowned them in the bathtub while she was severely depressed and possiblyaffected by alcohol and prescription drugs. [6] The Code requires that every sentence imposed by a court must contribute to respect for the law and the maintenance of ajust, peaceful and safe society.

To achieve that purpose, it must have regard to the objectives articulated in s 718 of the Code. [7]

Section 718.1 specifies that, after accounting for the sentencing objectives identified in the Code, and after weighing all ofthe mitigating and aggravating circumstances, the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. III. Position of the Parties [8] The Crown points to s 718.01 of the Code, which requires the sentencing court to give primary consideration to deterrenceand denunciation where the offence involves the abuse of a person under the age of 18.

In addition, the Crown refers to s 718.2(a)(ii.1)and (iii) of the Code, in which abuse of a person under 18 and evidence the offender abused a position of trust in relation to the victim incommitting the offence are deemed to be aggravating circumstances. [9] The Crown argues that a fit and proper sentence for Ms. McConnell would be in the 12-year range. The Crownacknowledges that Ms. McConnell is entitled to more than 1:1 credit for the time she has spent at Alberta Hospital, suggesting that 1.5:1would be appropriate in the circumstances.

Taking into account this 1.5:1 credit, the Crown submits that she should serve an additionaleight years in prison. It relies on three cases in support of its proposal: R v Lavoie (1987) 1987 ABCA 138 , 78 AR 327 (CA); Rv Laberge, 1995 ABCA 196, 165 AR 375; and R v R(NR), 2011 MBQB 90, 264 Man R (2d) 155. [10] Defence counsel submits that sending Ms. McConnell to prison for any additional time would achieve none of the recognizedsentencing principles. He contends that Ms. McConnell was mentally troubled at the time she drowned her sons and remains suicidal.

Henotes that she will continue to pay an incredibly high price for the actions her mental state drove her to commit. He maintains that a12-year sentence would not be a fit and proper sentence under any scenario and urges the Court to sentence Ms.

McConnell to the timeshe has served already. [11] Defence counsel relies on the following cases in support of those submissions: R v Sriskantharajah (1994), (ON CA), 90 CCC (3d) 559 (Ont CA); R v Valiquette (1990), (QC CA), 60 CCC (3d) 325 (Que CA); R v Samberg,[2003] QJ No. 17668 (Sup Ct) (QL); R v Fujii, 2002 ABQB 805, 323 AR 261; R v Camrie, 2009 MBQB 226, 244 Man R (2d) 270; andR v Coombs, 2003 ABQB 818, 343 AR 212. [12] Defence counsel observes that, mercifully, cases in which more than one child have been killed are rare, and submits the usualsentencing guidelines should be appropriately tailored to the unusual circumstances in this case.

[ 13 ] Apart from the victim impact statements from Curtis McConnell and his parents that form part of the court record, neither the Crown nor the Defence called any additional evidence at the sentencing hearing. IV. Analysis A. Determining Moral Blameworthiness [ 14 ] As a result of the broad range of sentencing options available in manslaughter cases, the Alberta Court of Appeal in Laberge at para 6 indicated that a sentencing court, as part of the sentencing process, must determine where an offender's actions should be placed on the moral culpability ladder.

In doing so, the court must distinguish between fault in terms of mens rea at the time the offence was committed, and fault in terms of the offender's overall moral blameworthiness for the crime. The Court of Appeal in Laberge commented at para 8 that an offender's moral culpability will be influenced by factors in addition to their mental state.

In the case of unlawful act manslaughter, which is the situation here, the most important factor will be what the unlawful act itself involved, particularly its nature and quality, the method used and the manner in which that unlawful act was committed in terms of the degree of planning and deliberation.

It is relevant in assessing mens rea whether the unlawful act, viewed objectively, was likely to cause bodily harm, serious bodily injury or life-threatening injuries and whether the offender knew that and proceeded nevertheless. [ 15 ] The court in Laberge also instructed at para 23 that: ... the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death. [ 16 ] A similar analytical framework has been adopted by the Court of Appeal in its recent decision in R v Nickel , 2012 ABCA 158 for assessing moral culpability in other crimes of omission and commission by caregivers against children. [ 17 ] The Crown in the present case points to the medical examiner's trial evidence that a drowning person would struggle for breath for one and one-half to three minutes before losing consciousness and would be brain dead within three to 10 minutes.

It notes that Ms. McConnell described a recurrent dream or scene to Dr. Choy in which she saw herself holding Connor under the water with Jayden's body floating beside him. Based on that, the Crown argues the most logical sequence of events is that Ms. McConnell drowned her younger child while the older child watched. It urges the Court to factor into Ms. McConnell's ultimate sentence the horror that Connor must have experienced in those circumstances. [ 18 ] It is not clear on the evidence that Ms. McConnell’s description reflects the reality of what occurred.

Even if it does, that does not necessarily mean that the older boy watched as the younger boy drowned. Both boys may have been placed in the tub at the same time. Ms. McConnell may have held both boys under water, with Jayden drowning before Connor, or she may have held Connor under water while leaving Jayden to his own devices for a short time. It is not possible to know with any degree of certainty what happened in that bathroom, beyond the unimaginably tragic results. [ 19 ] I agree with the Crown that applying the initial framework articulated in Laberge to Ms.

McConnell's actions seems to place her moral blameworthiness towards the higher end of the moral culpability ladder, but I do not agree her actions were more culpable than those of the offender in Laberge . [ 20 ] Nor do I appreciate how Laberge supports the sentencing range the Crown proposes. There can be no doubt, from the mens rea perspective, that there was an objective risk of life-threatening injuries given that Ms.

McConnell likely had to physically hold the older child under water and at the very least ignored the younger child, who would have struggled to breathe given the medical examiner’s evidence at trial. However, I cannot conclude that Ms. McConnell knew her actions would kill her children in view of the evidence at trial regarding her fragile mental state and its possible impact on both her cognition and her judgment. In addition, even though she was not diagnosed with a personality disorder, she did manifest certain borderline personality traits, including: chronic

depressive symptomology; a persistent, unstable sense of self; chronic feelings of emptiness; and continuing long-term suicidal ideation that would come and go. [ 21 ] The only unequivocal evidence of planning related to Ms. McConnell's own attempts at suicide. Drowning her children appears to have been impulsive. At trial, the witnesses who knew Ms. McConnell best in the years and days before these tragic events occurred testified that she acted seemingly out of the blue.

Finally, and without in anyway minimizing the devastating consequences in this case, there was absolutely no indication of any prior, gratuitous violence or other injuries having been inflicted by Ms. McConnell on Connor or Jayden. [ 22 ] The court in Laberge at para 10 acknowledged that in order to obtain a complete picture of the moral blameworthiness of an offender, the sentencing court must have regard to any personal characteristics of the offender which would mitigate or aggravate their culpability.

The court implicitly recognized the mitigating effect of mental illness or frailty in the following passage (at para 47): While there will be cases in which an offender's psychological problems, abnormalities, frailties or physical illnesses will mitigate what would otherwise be a fit sentence, this is not one of them. The expert evidence here was that Laberge did not suffer from any known psychopathy.

What we have here is a case of a short-tempered parent with a low boiling point who lost his temper for no rational reason, flew into a rage, abused his child and killed her. [ 23 ] It bears mentioning here that notwithstanding the Crown succeeded on its appeal in Laberge , the Court of Appeal nevertheless rejected the Crown's argument that 12 years was a proper sentence and instead sentenced the offender to four and one-half years in prison. MacKenzie J, who concurred in the result, observed that four and one-half years was at the highest end of the range in the circumstances of that case. B.

Deterrence and Denunciation [ 24 ] As mentioned, s 718.01 of the Code requires the sentencing court to give primary consideration to the sentencing objectives of deterrence and denunciation in its determination of a proper sentence for abuse of a person under 18. [ 25 ] There have been few manslaughter cases in which this provision has been discussed or applied. [ 26 ] Giving consideration to denunciation and deterrence ensures that society's core values to respect human life and dignity are both validated and affirmed. In addition, it serves to protect those who are most vulnerable.

Finally, taking those objectives into account recognizes the legitimate need to bring to justice those who have engaged in violence and especially so when children are involved ( Laberge at para 32 ). [ 27 ] While s 718.01 does require that primary consideration be given to deterrence and denunciation, this provision does not require the Court to consider those two objectives to the exclusion of other relevant objectives.

Courts consistently have recognized that an offender's mental illness will attenuate the relative importance of deterrence and denunciation ( R v Tremblay , 2006 ABCA 252 at para 7 , 401 AR 9; R v Resler , 2011 ABCA 167 , 505 AR 330 at para 14 ). [ 28 ] The rationale for that attenuation is succinctly stated in Valiquette , a case in which a young woman in a state of acute depression suffocated her three-year old child and unsuccessfully attempted to take her own life. Rothman JA wrote in that case at pp 330-331: Dr.

Fugère, in her report, expresses the opinion that the symptoms presented by appellant indicate a diagnosis of severe depression with psychotic episodes, that she took the life of her child and tried to take her own life at a time when her perception of the world was coloured by her own desperate, disturbed and suicidal emotional state. Even now, Dr. Fugère suggests, she is in a severe state of depression and should not be released without a pre-release assessment.

Quite clearly, appellant was suffering from extremely serious mental and emotional problems when she committed the offense. While they may not have been such as to justify a defence of insanity requiring an acquittal on grounds of insanity, these problems are nonetheless very relevant to her sentence. Persons suffering from severe mental illness of this kind do not, in my respectful opinion, require exemplary sentences to deter them from repeating the offense. Nor is a severe sentence imposed on a mentally-ill person of much value for purposes of general deterrence.

Mothers, generally, do not need exemplary sentences to deter them from killing their young children. And most people understand that the mentally-ill require treatment and supervision, not punishment. [ 29 ] In my view, the range of sentence proposed by the Crown does not account for Ms. McConnell's severely affected mental state at the time she drowned her children and ignores two sentencing principles. First, whatever the ultimate sentence, it is a fundamental principle of sentencing that it be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Second, it is a statutory requirement that the sentencing court take into account all of the aggravating and mitigating circumstances of both the offence and the offender. [ 30 ] The Crown directed the Court's attention to the factors it considers to be aggravating in this case, but said little about those that might be mitigating. A review of both aggravating and mitigating factors is an essential part of any sentencing process. C. Aggravating Factors 1. Relative to the offence [ 31 ] I agree with the Crown that Ms. McConnell, as the mother of these two young boys, was in a position of trust.

Connor and Jayden were entitled to believe and to expect that their mother would not harm them. On that basis, I agree with the Crown that their age and her relationship to them are aggravating factors. [ 32 ] As I have already stated, there was no evidence that Ms. McConnell abused her boys physically or emotionally or in any way mistreated them until her mental state caused her to drown them in a bathtub full of water. On the contrary, the trial evidence confirmed that in all other respects, Allyson McConnell loved and completely attended to Connor and Jayden throughout their short lives.

That cannot be said about the children involved in most of the cases provided by the Crown to the Court for consideration. 2. Relative to Ms. McConnell personally [ 33 ] There are no obvious aggravating factors relative to Ms. McConnell herself. D. Mitigating Factors 1. Relative to the offence [ 34 ] It is relevant that this tragic event occurred sometime within a three or four day window, and while there was significant evidence Ms. McConnell had thoughts about harming herself, there was no clear evidence she planned to harm her children before she actually drowned them.

There are, however, no obvious mitigating factors relative to the offence.

2. Relative to Ms. McConnell personally [ 35 ] There are several mitigating factors relative to Ms. McConnell in this case. [ 36 ] First, the Court learned at the sentencing hearing that Ms. McConnell had offered to plead guilty to manslaughter sometime prior to the trial, but the Crown rejected this offer. Without in any way criticizing the Crown for rejecting the plea, accepting it would have resolved these matters more expeditiously and saved the McConnell family from having to subject their personal grief to public spectacle. Even though the Crown rejected the plea, the offer signalled Ms.

McConnell's readiness to accept responsibility for her actions and her very real remorse for what occurred. [ 37 ] Second, Ms. McConnell is a person of good character with no prior criminal record. [ 38 ] Third, at the time Ms. McConnell committed the unspeakable act of drowning her children, her mental state was fragile and seriously compromised. This was discussed in greater detail in my trial reasons. In

summary, however, Ms. McConnell had been subjected to unimaginable violations of her sexual dignity and integrity, first when she was a child, and subsequently as a young teen. She harboured the effects of those violations alone into her adult years. At the time she drowned her boys, she was suffering from a severe depressive disorder and an acute sleep disturbance. She found herself without the emotional and financial support she previously had enjoyed. She had been suicidal at various times in her life, and at the time she drowned her children, was floridly suicidal.

In addition, her cognition and judgment may have been affected by alcohol and a large quantity of sedatives that she ingested to end her own life. In the few days following these tragic events, Ms. McConnell still did not seem to understand her children were dead. Her sister finally was given permission to break that sad news to Ms. McConnell, who reportedly was devastated by it. [ 39 ] Fourth, Ms. McConnell is fortunate to have the strong support of her Australian family. Her mother and sister arrived from Australia on February 2 or 3, 2010.

Her mother has remained in Canada since then, with the exception of two brief trips back to Australia. Her sister returned home, but came back to Canada and attended throughout Ms. McConnell's trial. [ 40 ] Finally, Ms. McConnell has been detained for 855 days, from February 1, 2010 to her sentencing date, assuming my mathematics are correct. She was taken to hospital on February 1, 2010 and subsequently transferred to the Glenrose Clinic. On April 6, 2010, she was transferred to Alberta Hospital. Ms. McConnell was not formally charged until February 22, 2010. [ 41 ] Defence counsel noted that from the time Ms.

McConnell was taken to hospital, she was shackled to her bed and there was a police guard either in her room when she was alone or just outside her room if someone else was there with her. Ms. McConnell was allowed no access to the outside world through television, newspapers or radio, although I assume this was at the direction of her medical caregivers. Following her transfer to Alberta Hospital, she was housed for two years, without any privilege to leave, on Unit 3-5 in the Helen Hunley Building. Defence counsel described that unit as being as secure as the Edmonton Institution, a maximum security facility.

The Crown did not take issue with any of these submissions. [ 42 ] The Crown’s position is that Ms. McConnell should not receive any credit for the time she spent in hospital prior to being charged. I infer the Crown takes the view she was not in custody at that time, although it did not directly address that issue. The Crown suggests that she should be given only 1:1 credit for her time in custody from February 22, 2010 until she was transferred to Alberta Hospital on April 6, 2010.

It agrees with the Defence that thereafter she should receive greater credit than 1:1, but submits that no more than 1.5:1 credit should be given as Ms. McConnell was receiving treatment and interim release was a viable option which she did not pursue. [ 43 ] Defence counsel contends that, given the shackling and police guard posted at her door, Ms. McConnell was detained from February 1, 2010 on and should receive 2:1 credit for the whole of the time up to sentencing. It asserts that it was only because of her physical and mental condition that she was not charged on that date. [ 44 ]

Section 719 of the Code provides (now and in 2010) that in determining the sentence to be imposed on an offender, the court can take into account any time spent in custody by the person as a result of the offence. I find that Ms. McConnell effectively has been in custody since February 1, 2010 even though she was not charged until February 22. Based on evidence that she was suicidal, I conclude

that her interim release was not a viable possibility. [ 45 ] The Court agrees with Defence counsel that prior to the truth in sentencing legislation, the standard credit for time served pre- sentence was 2:1, absent proof that the conditions justified greater credit ( R v Sooch , 2008 ABCA 186 , 433 AR 270 at para 11 ). These offences pre-date the truth in sentencing legislation.

Accordingly, what is appropriate credit remains within my discretion. [ 46 ] In Sooch , the Court of Appeal indicated at para 16 that the failure to apply for bail, where bail is a viable possibility, militates against awarding enhanced credit for the time spent in predisposition custody. It allowed the offender 2:1 credit in that case. [ 47 ] Ms. McConnell sustained physical injuries after jumping from the overpass and was in a compromised mental health state. It is not clear at what point she could have turned her mind to judicial interim release, if at all.

In any event, I do not agree that her release was a viable possibility given her mental state. I note that Alberta courts appear not to have treated time spent in Alberta Hospital any differently from time spent at the Remand Centre. [ 48 ] In my view, Ms. McConnell should receive credit on a 2:1 basis from the time of her arrest on February 1, 2010 to the date of her sentence. That credit will accord her the type of remission credit she would have received had she been incarcerated only after she was sentenced. E.

Neutral Factors [ 49 ] There are some neutral factors that do not impact the sentence itself, but nevertheless are part of the sentencing process. These include Ms. McConnell's immigration status and the victim impact statements that were either read or entered into the record at the sentencing hearing. 1. Ms. McConnell's immigration status [ 50 ] Ms. McConnell is an Australian citizen. Her counsel advised that Ms. McConnell has been served with a Notice of Removal from Canada.

She is entitled to resist her removal, but she does not intend to do so. [ 51 ] Defence counsel also advised the Court regarding the treaty that exists between Canada and Australia that permits the transfer of offenders between the two countries. Ms. McConnell's counsel has been in contact with the appropriate authorities to arrange for her transfer to Australia if it is determined that she should serve additional time beyond what she already has spent at Alberta Hospital. 2. Victim impact statements [ 52 ] Parliament requires a sentencing judge to consider victim impact statements in sentencing.

Victims are afforded an opportunity by this process to be heard regarding the affect an offence has had on them emotionally, physically and generally on their lives. Curtis McConnell and his parents, Jim and Audrey McConnell, took advantage of this opportunity. It would seem an impossible undertaking to express in words the profound and lasting effect these tragic events have had and will continue to have on the families of these two boys, and indeed on their entire community.

And yet, no one will soon forget Audrey McConnell's anguish as she described in these words completing a very ordinary chore, not worthy of second thought on a normal day: One day I cleaned the patio doors with Connor’s handprints on it - I immediately regretted it. I cried for days knowing there would be no new ones. I wished I had left them there. [ 53 ] It is said that the art of living lies in a fine mingling of letting go and holding on. So it will be for the McConnell and Meagher families.

F. Range of Sentences Imposed on Similar Offenders Similarly Placed [ 54 ] The Court already has commented on the difficulty inherent in the sentencing process for manslaughter cases because of the range in degrees of moral culpability. Comparisons are difficult given the need to consider not only the circumstances of the offence, but also of the offender. Generally speaking, the cases relied on by the Defence align more closely with the circumstances of the offence in this case and with Ms.

McConnell personally than do the cases relied on by the Crown. [ 55 ] The Defence referred to a number of cases in which the sentences ranged from a suspended sentence on the low end ( Valiquette ) to eight years on the high end ( Fujii ). In Camrie and in Samberg , the offenders were given a conditional sentence, which is a disposition that no longer is available to Ms.

McConnell because of amendments to the Code . [ 56 ] In all of the cases the Defence relied on, the court concluded that the offender suffered from some form of mental or emotional disorder at the time the offence in question was committed. [ 57 ] In both Sriskantharajah and Valiquette , the court on appeal reduced trial sentences that were based on joint submissions. In Sriskantharajah , the Ontario Court of Appeal set out very strong mitigating circumstances in favour of the appellant. There is little doubt that, objectively, Ms. Sriskantharajah’s circumstances were more dire than were those of Ms.

McConnell, but tragically the result was the same, as is evident from para 2 of the decision, which quotes the following passage from the trial decision: The facts giving rise to the manslaughter convictions are tragic in the extreme. On March the 20th, 1992, while in a state of severe depression, Ms. Sriskantharajah took the lives of her two infant children. She then tried to take her own life at a time when her perception of the world was coloured by her own desperate, disturbed and suicidal emotional state. The enormity of her depression at the time can scarcely be doubted.

It alone serves to explain how a mother who so dearly loved and cherished her children could be driven to the extreme and irreversible acts of violence which led to their death. [ 58 ] The Crown in Camrie only sought a sentence of 30 months imprisonment. Given the circumstances in that case, Ms. Camrie's action in throwing her son into the bassinet would place her at a lower level on the moral blameworthiness continuum than would Ms. McConnell's actions. However, there was no indication that Ms. Camrie suffered from any specific psychopathy. Rather, as in Laberge , it appears Ms.

Camrie momentarily lost it and committed an impulsive act of aggression that caused her child's death. [ 59 ] The Defence also referred me to the decision in Coombs . The Crown in that case sought a sentence of five to seven years after Ms. Coombs was convicted of manslaughter in the death of her 10-week old infant, who died of cranial trauma. The child had suffered a fractured skull. She had been shaken so severely that she had sustained severe retinal damage.

In addition to those more life-threatening injuries, the child had suffered bruising to both ears, to the soft side of her cheek and above her left eyebrow. The court sentenced Ms. Coombs as if for infanticide, but the sentencing judge expressly stated the result would have been the same for manslaughter. Ms. Coombs was sentenced to four years in prison followed by three years probation. She suffered from a personality disorder and some depression, like Ms. McConnell who manifested personality disorder traits and suffered from severe depression. The primary factors that distinguish Ms. Coombs from Ms.

McConnell are: Ms. McConnell's age, as she was considerably older at the time of the offences than Ms. Coombs; Ms. McConnell's lack of any criminal record, her previous good character, and her offer to plead guilty; and the fact Ms. Coombs was Métis. While there was no evidence of prior abuse or mistreatment by Ms. McConnell or Ms. Coombs of their children, the nature of the child’s injuries in Coombs were such that the mechanism of injury involved more than one act on Ms. Coombs's part. [ 60 ] Finally, the Court was referred to Fujii . In that case, the Crown sought a sentence in the range of 10 to 14 years.

The defence acknowledged that Ms. Fujii's actions warranted a penitentiary term, but argued the range was between five and eight years. Consequently, the eight year sentence ultimately imposed by the court was within the range suggested by the defence. Ms. McConnell's counsel made no such concession regarding imprisonment for Ms. McConnell. [ 61 ] The Fujii case is similar in some respects to the case before this Court. Ms. Fujii killed both of her children. Also, the court in Fujii noted that those who knew Ms.

Fujii best had described her in the months prior to the killing of her children as a very stressed young mother of two infants who felt lonely, sad and overwhelmed by the demands of her children.

[ 62 ] However, the Fujii case is starkly different from the present one in two respects. First, Ms. Fujii left her two children for 10 days. They died slowly of starvation and dehydration. When Ms. Fujii returned home to her dead children, she disposed of the youngest and kept her older child's body with her in her apartment. Second, Ms. Fujii was difficult to diagnose psychologically because she gave misleading responses to psychological testing. The psychologists agreed she suffered from a personality disorder, but disagreed on whether it was borderline or histrionic personality disorder.

The psychiatrists indicated her personality might have been compounded by situational depression arising from her isolation. [ 63 ] In contrast, and without in any way minimizing the gravity of the events in this case, it is relevant that there was no dispute regarding Ms. McConnell's mental state, including that she was severely depressed and floridly suicidal at the time she drowned her two children. [ 64 ] The cases relied on by the Crown, with the exception of Laberge , support the 12 year range the Crown proposes for Ms.

McConnell, but in my view the circumstances of the offences and of the offenders in those cases do not. [ 65 ] In Lavoie , the appellate court upheld a 12 year sentence imposed by the trial court. Mr. Lavoie was a youthful offender, which Ms. McConnell is not, but he was also no stranger to the courts. There was also disagreement in the psychiatric evidence, which was not the case here. In any event, the psychiatrists agreed that Lavoie was unable to cope with the various stresses in his life, causing him to store-up his anger and resentment. When he finally exploded, a four-year-old girl was in his way.

He threw her into a creek for complaining about being wet. After she got up crying and saying she was sorry, he held her head under the water, drowning her. No circumstances were placed before the court to mitigate the gravity of the offence and the court characterized Mr. Lavoie's actions as near murder. I agree with Defence counsel that Mr. Lavoie's mental state was nowhere near that of Ms.

McConnell's. [ 66 ] In Laberge , the Alberta Court of Appeal increased the offender’s sentence from three years to four and one-half years after finding the following (at para 39): These facts have also lead me to conclude that Laberge was willfully blind to the fact that bodily injury would likely be caused by the manner in which he caused his daughter's head to be struck against the floor. Relevant to this finding of willful blindness is Laberge's admission that he "lost it".

Inferentially, Laberge knew very well that he had lost control of his temper when he chose to grab his daughter and control her movements in such a way that he struck or caused her head to be struck against the floor. This admission, coupled with the force of the blow required to cause the brain injuries and multiple fractures sustained by this child who was not breathing within one half hour after the assault on her, lead to the inevitable conclusion that Laberge lost his temper, flew into a rage and assaulted his baby daughter with an indifference as to whether bodily injury would result.

Laberge knew that what he was doing would be likely to put his daughter at risk of bodily injury, but he proceeded in this face of that risk. Again, it bears repeating that Laberge assaulted his daughter in such a way that her head was the first part of her body to hit the floor, the clear inference being that her bodily movement was controlled by Laberge in such a way that he was able to strike her head first against the floor before any other part of her body touched the floor. She was not breathing within one half hour after the assault.

This was not a case where chance played a large role in death... [ 67 ] Notwithstanding the offender in Laberge did not suffer from any known psychopathy, the Court of Appeal concluded that 12 years was not appropriate because of a number of mitigating factors including: the impulsiveness of the act; the lack of a high degree of deliberation; the fact that death resulted from a single act; and that it did not involve additional gratuitous violence. [ 68 ] Finally, on the facts in R(NR) , the result was also a sentence of 12 years.

It is relevant that the 29 year old offender had a lengthy criminal record, a serious addictions problem, she was assessed as being a very high risk to re-offend and she displayed a limited degree of remorse. Further, there is scant discussion in the reported decision regarding psychological or psychiatric motivation for killing the youngest of the offender's four children beyond recognizing she had serious addiction problems and that she suffered from a variety of emotional disorders.

It is clear from the following passage at para 9 of the decision that neither was a significant factor mitigating her sentence: It will suffice to note, that the Crown is correct in submitting that all of the bruises inflicted on this 21-month old child would have been painful. At a certain point, the sheer number and the gravity of these injuries need be seen as reflective of something that goes well beyond the inability to cope and the impulsive expression of frustration and stress. If these injuries can be considered as "reactions" by

the accused, they suggest reactions at an escalated state, one closer to anger and rage than frustration and stress. V. Conclusion [ 69 ] Defence counsel posed the rhetorical question: “[w]hat sentencing principle would incarcerating Ms. McConnell serve?” Obviously, the lives of Connor and Jayden cannot be restored, and nothing I do will change the impact their deaths will continue to have on the lives of their family members as they try to cope with such an unfathomable loss. [ 70 ] There can be no doubt Ms. McConnell was troubled at the time of the offences, and that she continues to be suicidal.

The evidence she gave at trial when asked by her counsel what the future holds for her brings into sharp focus the terrible price she will continue to pay for her unspeakable actions. [ 71 ] No matter how severely compromised Ms. McConnell was at the time, it cannot be forgotten that she took the lives of two vulnerable children who were entitled to look to her for protection. I agree with the Crown that those circumstances should have an aggravating effect on the sentence I impose.

The Code requires that in situations of abuse of persons under the age of 18, primary consideration must be given to the objectives of denunciation and deterrence, although as I have observed, not to the exclusion of other relevant sentencing objectives. In this case, while Ms. McConnell's mental state must lessen the impact of those two objectives, the ultimate sentence nevertheless should validate and affirm society's respect for human life and dignity and reflect that vulnerable people require protection.

It also should reflect the legitimate need to bring to justice those who have engaged in violence, especially toward children. [ 72 ] In my view, sentencing Ms. McConnell to the time she already has served would give insufficient weight to those primary objectives. Having regard to the required sentencing objectives and principles, and taking into account all of the aggravating and mitigating circumstances, I conclude that a fit and proper sentence is six years in prison on each count, to be served concurrently. [ 73 ] Against that sentence, Ms.

McConnell should receive credit for the time she has served since she was arrested on February 1, 2010 up to the date of this sentence. [ 74 ] Finally, I recognize it is not for me to determine where Ms. McConnell serves the remainder of her time, but the following evidence from Dr. Choy regarding Ms. McConnell's prospects for the future is worth restating: A. Yes.

Yes, I mean, in many ways, from a clinical perspective, we think we're probably getting the best we're going to expect from the medications themselves, which is an improvement in her physiological rhythms, and ability to improve her emotions, the range of feeling of her emotions, the ability to express some pleasure or some joy, the ability to engage again, or a less slowing of the brain. But given the circumstances she is under, and of course the stresses she is facing, you know, we're not necessarily expecting 100% recovery. … I think we need to be very guarded in terms of the future.

I've been very frank with Ms. McConnell in indicating to her that at times like this when she doesn't have a sense of hope, we still are hopeful. We know that the future can be quite perilous based on what the stats provided, based on our understanding of her depression, and our understanding of Ms. McConnell herself. We frequently talk about the fact that there is no clear formula or route through this, but we think there is meaningful purpose. You know, there is a path through this. So we provide her with that support. [ 75 ] It is unlikely that Ms.

McConnell will receive the same or equivalent treatment in a prison mental health ward that she requires and is presently receiving at Alberta Hospital. It is in society's interest that Ms. McConnell's sentence not only punish her, but also afford her the best opportunity for rehabilitation. Based on the evidence I heard from Dr. Choy, I am concerned that if Ms. McConnell does not remain at Alberta Hospital until her treating physicians consider it appropriate for her to be transferred, the sentence I have imposed will do no more for her than prolong her inevitable demise.

On that basis, it is my strong recommendation that she remain at Alberta Hospital until her physicians consider it appropriate for her to be transferred elsewhere. Heard on the 9 th day of May, 2012.

Dated at the City of Wetaskiwin, Alberta this 4 th day of June 2012. M.G. Crighton J.C.Q.B.A. Appearances: Gordon Hatch for the Crown Peter Royal, Q.C. for the Accused