R v MB, 2014 ABQB 683

Court of Queen ’ s Bench of Alberta Citation: R v MB, 2014 ABQB 683 Date: 20141110 Docket: 130577737Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - MB Accused Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] MB pled guilty in July 2014 to one count of manslaughter in the death of ML, one count of failing to provide her with the necessaries of life, one count of aggravated assault of SL and one count of endangering her life by failing to provide her with the necessaries of life.

[ 2 ] The sentencing hearing for Ms. MB was to commence on October 20, 2014. Ms. MB changed counsel that morning, and sentencing was adjourned. It will now continue on March 2, 2015. [ 3 ] Neither the Crown nor the defence had requested a pre-sentence report or a Forensic Assessment and Community Services (FACS) assessment. I requested that counsel provide submissions regarding the Court’s authority to order a psychological or psychiatric assessment. Counsel provided authorities and submissions. [ 4 ] On November 7, 2014, I ordered that a pre-sentence report be prepared. As well, I ordered that Ms.

MB attend for a FACS assessment. The pre-sentence report and FACS assessment are to be provided to the Court no later than January 9, 2015 so as to provide the defence with sufficient opportunity to address their contents. [ 5 ] These are the reasons for my order. II. Facts [ 6 ] The relevant facts have been set out in an Agreed Statement of Facts which has been marked as Sentencing Exhibit 1. I will highlight the facts that are important to my reasons. [ 7 ] Ms. MB and her husband, DL, emigrated from Algeria and have permanent resident status in Canada.

They had three children: a son, A (“A”) born on August [...], 2008; and twin daughters, M and S, born on February [...], 2010. [ 8 ] Emergency Medical Services and the Edmonton Fire Department responded to the MB/DL home on May 25, 2012, pursuant to a 911 call placed by Mr. DL. M appeared severely emaciated, had no pulse, was unconscious and was not breathing. S had extensive bruising to her face and forehead, appeared sickly and had no hair. A appeared in good health with no injuries. [ 9 ] On arrival at the Stollery Children’s Hospital, M was placed on life support.

She weighed approximately six kilograms (13 pounds 4.6 ounces) and was only 77.5 centimeters (30.5 inches) in height. She had injuries all over her body as noted and documented by medical staff. Following significant litigation, M’s life support was removed on September 20, 2012: Alberta (Child, Youth, and Family Enhancement Act, Director) v DL , 2012 ABQB 562 , 547 AR 390, aff’d 2012 ABCA 275 , 536 AR 207, leave denied [2012] SCCA No 364 (QL). She died roughly two and a half hours later.

The official cause of her death was “blunt force head injuries and malnourishment with sequelae”. [ 10 ] On arrival at the hospital, S had evidence of blunt trauma to her head and was in a state suggesting Infantile Non-Accidental Trauma (INAT) and neglect. Many injuries were also observed on her body as noted and documented by medical staff. She weighed 7.3 kilograms (16 pounds 1.6 ounces) and was 74 centimeters (29.5 inches) in height. It was determined that S was likely chronically deprived of food and suffered from malnutrition leading to inadequate growth.

S became subject to a private guardianship order in February 2013. [ 11 ] Ms. MB has made the following admissions: • She knew that neither M nor S was mobile in the weeks leading up to May 25, 2012, and that they were significantly late in terms of their ability to communicate and other age appropriate activities. They were also lethargic and weak and unable to nourish or protect themselves from ongoing physical abuse. • Their weight and health had been deteriorating over a significant period of time and neither one weighed what she should have weighed for her chronological age due to malnourishment.

They were in need of medical intervention and attention. • She had a legal duty to provide M and S with the necessaries of life, including food and other nourishment, as well as medical attention if and when required. • She knew M or S required medical treatment as a result of malnourishment and their physical injuries, but she chose not to take them for treatment. • She contributed to unlawfully causing M’s death and endangered S’s life. • She unlawfully caused the inflicted traumatic brain injury that was the other cause of M’s death.

She subjected both twins to significant inflicted head trauma and failed to seek medical attention knowing the significant force she used to cause their injuries. • Over a prolonged period of time she directly inflicted all the non-accidental physical injuries evidenced on M’s and S’s bodies outlined in the Agreed Statement of Facts and exhibits. • Her actions, which included physically assaulting and abusing M and S, failing to provide them with food and nourishment, actively preventing the discovery of their abuse, actively participating in their prolonged abuse and neglect and failing to seek medical attention for them, caused them to be grossly malnourished and suffer ongoing physical abuse.

Her actions also caused M’s death and endangered S’s life. [ 12 ] The Agreed Statement of Facts provides the following information for sentencing: Ms. MB was born on January 21, 1978 and is now 36 years old; she and Mr. DL emigrated to Canada from Algeria; in Algeria, she attended university for six years studying communications and French; she received a licence in communications; in Canada, she studied English at J.

Percy Page School for one year. [ 13 ] The Court has already received written sentencing submissions from the Crown and defence, yet this is the extent of the information before the Court regarding who Ms. MB is, her personal circumstances, and her individual characteristics.

III. Positions of Parties [ 14 ] Both the Crown and defence counsel submitted that the Criminal Code does not expressly authorize the Court to order a psychological or psychiatric assessment for general sentencing purposes. [ 15 ] Crown further submits that there has been nothing produced in this matter to suggest that Ms. MB suffers from any mental health problems. Crown argues that such an order would be premature as defence counsel may put forward further information at the sentencing hearing. [ 16 ] Defence counsel applied for an adjournment.

He argued that the Court has no jurisdiction to order a FACS assessment, and that the Court should not enter into the fray in this way. He submitted that once he has had an opportunity to thoroughly review the file, he may provide information at sentencing which will alleviate concerns regarding the lack of relevant information. He also submitted that if the Court were to make such an order at this time, he would be in a difficult position, as he cannot advise his client not to abide by a court order. IV.

Analysis [ 17 ] In my view, it would be inappropriate to simply wait and consider this issue at the time of oral submissions on March 2, 2015 when additional information may be provided. In particular, there is no indication that the Court will be provided with any type of pre- sentence report or other assessment at that time. This has been a prolonged process resulting from a number of adjournments and waiting until oral submissions to consider this issue might simply result in further delays or adjournments should the information still be wanting at that time. a. Sentencing Principles [ 18 ]

Section 718 of the Criminal Code , RSC 1985, c C-46, provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Supreme Court of Canada discussed and emphasized the obligations of a sentencing court to consider all the principles of sentencing in R v Pham , 2013 SCC 15 , [2013] 1 SCR 739. [ 19 ] Notably, a sentence must serve one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims and acknowledgement of harm done: s. 718.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. The principle of parity (s. 718.2(b)) provides that similar sentences should be given to similar offenders for similar offences in similar circumstances. The principle of individualization (s. 718.2(a)) requires that all relevant aggravating or mitigating circumstances as well as the objective and subjective factors relating to the offender’s personal circumstances be taken into account. [ 20 ] In sentencing Ms.

MB, I must consider in particular the principles of proportionality, parity and individualization. However, I am unable to properly consider the principles of parity and individualization on the basis of the information now before the Court. [ 21 ] With respect to proportionality, I have an idea of the gravity of her offences and her degree of responsibility. She pled guilty to a number of very serious charges against her daughters.

She physically assaulted and abused them, failed to provide them with food and nourishment, actively prevented the discovery of their abuse, actively participated in their prolonged abuse and neglected and failed to seek medical attention for them. [ 22 ] However, I am unable to properly consider the principle of parity. Mr. DL was sentenced to 15 years on related charges. The Defence has suggested that Ms. MB should receive the same sentence. While Ms. MB’s and Mr.

DL’s offences arose out of the same series of events, I have no other information to help me assess whether they are similar offenders or whether they committed similar offences in similar circumstances. [ 23 ] Likewise, I am also unable to properly consider the principle of individualization. The basic personal information outlined above tells me very little about Ms. MB. I have no other information to assist me in determining an individualized sentence. [ 24 ] The information before the Court enables no real understanding of who Ms.

MB is, how it is that she came to commit these horrific crimes, her attitude with respect to them, her place in society and other relevant facts. As a result, I cannot properly consider the principles of parity and individualization. For these reasons, I require further information in order to determine an appropriate sentence for her. b. Pre-sentence Report [ 25 ] The Crown and the Defence were not interested in having a pre-sentence report prepared. However, given the dearth of information regarding Ms.

MB, I find it necessary to order that a probation officer to prepare and file a pre-sentence report with the Court pursuant to s. 721(1). The pre-sentence report must contain information on Ms. MB’s age, maturity, character, behaviour, attitude and willingness to make amends, the history of previous findings of guilt under the Criminal Code and the history of any alternative measures used to deal with her and her response to those measures: s. 721(3) . [ 26 ] A pre-sentence report will assist the Court in determining whether Ms. MB and Mr.

DL are similar offenders and whether they committed similar offences in similar circumstances. It will also help determine who Ms. MB is, how she came to commit these crimes, her attitude with respect to them, her place in society and other relevant facts. Therefore, a pre-sentence report is necessary to assist me in determining an appropriate sentence.

c.

FACS Assessment [27] A FACS Assessment will include a psychiatric or psychological assessment. [28] Over the last two decades, courts across Canada have disagreed over whether the Criminal Code authorizes courts to order anon-consensual psychiatric or psychological assessment as part of a pre-sentence report or otherwise. [29] The Criminal Code expressly provides for court-ordered assessments of accused under: 1) s. 672.11 in relation to fitness to stand trial and NCR status, and Review Board assessments of high-risk; and 2) ss. 752.1 and 753.01(1) in the context of dangerous and long-term offender applications. [30] In R v Snow, (ON SC), [1992] OJ No 1792, 10 OR (3d) 109 (Gen Div), Then J. held that s. 672.11 wasprecise and exhaustive of the circumstances in which the court could order an assessment, and those circumstances did not extend to anassessment for general sentencing purposes.

Then J. did, however, opine that s. 22 of the Mental Health Act, RSO 1990, c M.7, gave thetrial judge the power to remand an offender for the purpose of obtaining information for sentencing. [31] In R v Lenart (1998), (ON CA), 39 OR (3d) 55 (CA), the Crown had obtained an order for assessmentunder s. 22 of the Mental Health Act for sentencing.

In discussing whether s. 22 of the Mental Health Act infringed on federal power tothe extent it permitted an assessment for sentencing, Finlayson J.A. for the majority held that in the absence of dangerous offendercircumstances, there was no provision in the Criminal Code authorizing a court to remand a convicted person for a psychiatricassessment for the purposes of sentencing. However, he held that the Mental Health Act furnished a means, in addition to the s. 721 pre-sentence report, of providing information to assist in the adjudication of criminal matters.

See also R v Simanek, [2001] OJ No 4187(CA), leave denied [2001] SCCA No 627 and R v Dyck, 2008 ONCA 309 at para 55. [32] More recently, in R v Bouvier, 2011 SKCA 87, the Court held that the sentencing judge erred in relying on s. 723(3) to orderan assessment similar to a report under s. 752.1 in a dangerous offender proceeding where both the Crown and the offender had alreadyprovided assessments. Citing Lenart, the Court noted that ss. 752.1 and 753.01 are the only Criminal Code provisions which directlyaddress the assessment of an offender for the purposes of sentencing.

The Court also referred to s. 34 of the Youth Criminal Justice Act,SC 2002, c 1 (and s. 13 of the repealed Young Offenders Act, RSC 1985, c Y-1), which specifically empowers the youth criminal justicecourt, on its own motion any stage of proceedings, to order an assessment of a young person for the express purpose of making orreviewing a youth sentence. The Court concluded that the Code does not expressly empower a judge to order the assessment of anoffender for general sentencing purposes.

The Court also expressed concerns regarding a sentencing court’s jurisdiction over non-parties,but the case law relied upon relates to orders which would apply post-sentence. [33] In R v Gettliffe-Grant, 2006 BCSC 1943, 217 CCC (3d) 474, Koenigsberg J. held that a court does not have jurisdiction toorder a non-consensual psychiatric or psychological assessment as part of a pre-sentence report under ss. 721(4) and 723(3).

She citedLenart, among other cases, for the proposition that express provisions, such as Ontario’s Mental Health Act and ss. 672.11 and 752.1 ofthe Code are required, noting that psychiatric and psychological assessments are a profound invasion of privacy. [34] There are, however, a number of cases in which the courts have taken a more expansive approach to interpreting relevantCode provisions.

In R v Hunter (1997), (AB KB), 208 AR 321, 53 Alta LR (3d) 169 (QB), the sentencing judgeordered that the pre-sentence report set out treatment programs available on the reserve as the offender was aboriginal and had a historyof alcohol abuse.

On appeal, LoVecchio J. held that a court has jurisdiction under s. 723(3) to order the production of any evidence aspart of a pre-sentence report where there is a logical nexus or relevance between what is ordered and the matter under consideration. [35] LoVecchio J. did not specifically consider s. 721(4) or whether the jurisdiction extended to ordering a psychiatric orpsychological assessment.

However, in subsequent cases, courts have relied on ss. 721(4) and 723(3) to order psychiatric orpsychological assessments as part of pre-sentence reports where the circumstances of the offence or offender have raised significantquestions which remain unanswered by the information otherwise available: R v Saba (19 December 1997), New Westminster RegistryX047316 (BC SC); R v Quintal, 2003 ABPC 79, 335 AR 14 (obiter); R v Blackwell, 2007 BCSC 1486, 227 CCC (3d) 275; R v Challes, (ON SC), 77 WCB (2d) 204, [2008] OJ No 1179 (QL) (Ont Sup Ct); R v Gibbons, 2009 NUCJ 30, [2009] Nu J No32; R v JL, 2009 QCCQ 14013, [2009] QJ No 15795; R v Goldberg, 2011 BCSC 1926, [2011] BCJ No 2800. [36] In those cases where psychiatric or psychological assessments have been ordered, the courts have, quite properly, requiredsome evidence or indication of a logical nexus or relevance between what is ordered and the matter under consideration (see, forexample, Hunter, Saba, Blackwell, Challes).

This standard, however, is low, and the nature or circumstances of the underlyingoffence(

s) alone may establish the logical nexus or relevance. [37] The courts have also acknowledged that the offender cannot be compelled to participate in such a court-ordered assessment:see, for example, Saba, Challes, Goldberg. [38] In addition to the information outlined in s. 721(3), s. 721(4) provides that a pre-sentence report must contain information onany other matter required by the Court. Section 723(3) provides that the Court may, on its own motion, require the production ofevidence that would assist it in determining an appropriate sentence.

Section 723(4) and (5) authorize the court to compel witnesses toappear and to admit hearsay evidence. [39] As noted in a number of cases, the Ontario Court of Appeal in Lenart did not consider ss. 721(4) and 723(3). Given theMental Health Act provisions, the Ontario courts need not look further for jurisdiction to order such assessments for general sentencingpurposes.

[ 40 ] In R v RAN , 2001 ABCA 312 , the accused objected to the use of a s. 752.1 assessment in sentencing where the Crown ultimately declined to proceed with the dangerous offender application. Therefore, the assessment was already in the hands of the Crown. The Court noted that a sentencing judge generally has wide latitude as to the sources and types of evidence considered in sentencing.

The Court also noted at paras 10 to 12 that the Criminal Code offers explicit protections for assessment which occur before trial, as they could constitute conscripted evidence, and concluded that there is no such concern with assessments performed pursuant to s. 752.1, which occur after a conviction is entered as part of the sentencing process. Such assessments, may gain “more liberal usage”.

The Court further held that even if the same level of protection were necessary for post-trial psychiatric assessments as for pre-trial psychiatric assessments, the higher level of protection is met by: telling the accused that s/he need not comply with an assessment, and that any statement that s/he makes could be used by the Crown or the Court. The Court found no basis to find that the assessment ordered under s. 752.1 in that case was pursued either “to loosen the accused's tongue or parade his earlier record solely to inflate his current sentence or that the discontinued application was otherwise colourable”.

The Court concluded that the sentencing judge was entitled to consider the assessment. [ 41 ] Similarly, there is no concern that assessments ordered under ss. 721 and 723 will constitute conscripted evidence at trial. The offender has already been convicted. However, the results of an assessment may or may not be to the offender’s advantage in sentencing. Therefore, similar protection should be provided to the offender as outlined by the Court of Appeal. That is, the offender should be told that s/he need not comply with an assessment and that any statement s/he makes could be used by the Crown and the Court.

However, in my view, still further protection is required. The offender should also be told that no adverse inference will be drawn from any refusal to participate in the assessment but, if the offender does participate and an assessment is prepared and entered, the offender will have an opportunity to challenge its contents. [ 42 ] It is necessary for this Court to exercise its jurisdiction to order an assessment in an effort to fulfil its sentencing obligations under ss. 718, 718.1 and 718.2. There is a logical nexus or relevance between what is ordered and the matter under consideration.

The horrific circumstances of Ms. MB’s offences call into question her psychiatric or psychological health. These were crimes against her young children, perpetrated over a long period of time, but not perpetrated against a third child. The scant information provided to the Court does nothing to assist in considering parity and individualization. Information concerning her mental health may be very pertinent in considering those principles when determining an appropriate sentence to impose on Ms. MB.

As the Court in Lenart stated, it may provide information to assist in the adjudication of a criminal matter. [ 43 ] Ms. MB must be told that she need not comply with the assessment, and any statement that she makes can be used by the Crown or the Court.

She must also be told that no adverse inference will be drawn from her refusal to participate in the assessment, but if she does participate and an assessment is prepared and entered, she will have an opportunity to challenge its contents. [ 44 ] While I recognize that in those cases where courts have ordered psychiatric or psychological assessments, they have done so as part of a pre-sentence report, in my view it makes more sense, for practical reasons, that they be ordered separately. Crown agreed that this was appropriate.

Therefore, I will order a pre-sentence report under s. 721 and a separate FACS assessment under s. 723(3). V. Conclusion [ 45 ] I order that a pre-sentence report be prepared. I also order that Ms. MB attend for a FACS assessment. [ 46 ] Ms. MB shall be advised that she need not comply with the assessment, and any statement that she makes can be used by the Crown or the Court.

She shall be further advised that no adverse inference will be drawn from any refusal to participate in the assessment, but if she does participate and an assessment is prepared and entered, she will have an opportunity to challenge its contents. [ 47 ] The pre-sentence report and FACS assessment are to be provided to the Court no later than January 9, 2015. Heard on the 7 th day of November 2014. Delivered orally on the 7 th day of November 2014. Dated at the City of Edmonton, Alberta this 10 th day of November 2014. Eric F. Macklin J.C.Q.B.A. Appearances:

Shelley Bykewich Danielle Green for the Crown Daryl Royer for the Accused