2015 MBPC 8, 2015 MBPC 8

Cite # 2015 MBPC 8 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) N. Fazenda for the Crown ) - and – ) ) Shan Shan Wong ) M. Law for the Accused ) ) Judgment delivered: ) February 20, 2015 WIEBE, P.J. Overview [ 1 ] On July 22, 2013, Ms. Shan Shan Joyce Wong left her son Owen, age six years and ten months, at home alone for approximately 90 minutes. Fortunately there was no tragedy and Owen was found in good form. According to Ms. Wong she left him in order to get medication for herself and to visit a few clients. Her actions were discovered by her estranged husband, who called the police.

She does not deny she left Owen alone. She realizes this was a mistake, as it was. She does however contest that this was child abandonment within the meaning of the Criminal Code . [ 2 ] This matter proceeded to trial on September 20, 2014. It was continued for argument January 19, 2015. The Facts [ 3 ] Mr. Lockie, the estranged husband of Ms. Wong and father to Owen, saw Ms. Wong driving alone on July 22, 2013 at approximately 4:55 p.m. He approximated she was a 20-25 minute drive from her house. He testified that when he realized Owen was not in the car, he became concerned.

He pulled over and called Owen who answered the phone at home. After speaking with Owen, he believed Owen was alone and so he started driving toward the house. He indicated he was concerned for Owen’s health and well-being and he believed Owen was in danger of “who knows what”. [ 4 ] En route to the house, Mr. Lockie decided he would pull over and call the police. He indicated that given his concerns that Owen had been left alone before (no evidence was presented to support this), he wanted a witness as he felt if it was only his word that Owen had been left alone, no one would believe him. [ 5 ] Ms.

Wong acknowledged she did leave Owen alone. She indicated on this day, she was very stressed and she was feeling unwell. By way of background, she explained she and Mr. Lockie had been married for 6 years. In October of 2012, Mr. Lockie attended at the home when no one was there and he packed up all his belongings and left. She claimed he emptied their bank account. His departure came as a surprise to Ms. Wong. She indicated they were in the midst of severe financial issues at the time and his leaving exacerbated the financial crisis.

According to her testimony, she had to secure an emergency loan to finish her social work degree as she was a student at the time. It was during this stressful period she said she made the mistake of leaving Owen unattended. [ 6 ] On the date of the incident, Ms. Wong was working as a health care aide. The evidence showed she would attend at various clients’ homes and give them medication. Each appointment took only approximately 5 minutes. On this day, she was to administer medication between approximately 4:45 p.m. and 5:55 p.m. to clients who lived in close proximity to each other. She then had a break in her

schedule until 8:40 p.m. [ 7 ] She testified it was her intention to deal with the earlier clients, then pick up some medication for herself and return home. She was planning to take Owen to a regular babysitter in the evening so she could attend to the evening appointments. She indicated she could drop Owen off without advance arrangements with this particular sitter. [ 8 ] Ms. Wong has no family in Winnipeg, and as the relationship with her ex in-laws had broken down completely, she did not consider them or her ex-husband to be viable options to watch Owen. [ 9 ] Prior to this incident, Ms.

Wong had primary custody of Owen with Mr. Lockie having him Wednesday nights and every second weekend. Since this incident, Mr. Lockie has had Owen exclusively and although there is no formal order as to custody in place, Mr. Lockie has not permitted Ms. Wong to see or communicate with Owen. [ 10 ] Mr. Lockie acknowledged that prior to this incident he had called the police twice regarding Ms. Wong. No charges resulted from those calls. He also advised he had called CSF multiple times and he has made several allegations against Ms. Wong. [ 11 ] Ms.

Wong indicated she was investigated by CFS a number of times as a result of Mr. Lockie’s allegations and this incident. In fact, Ms. Wong did her practicum for her social work degree with CFS.

[ 12 ] CFS has not intervened in any formal way, other than to say Ms. Wong could have unsupervised visits with Owen. [ 13 ] Needless to say, custody and access to Owen is a very hot issue between the parents. [ 14 ] The above background is necessary because Mr. Lockie and Ms. Wong gave very different descriptions of Owen’s abilities and personality. They did agree he is a very bright and active child and when they were together there were concerns that he may have ADD. However, no diagnosis was made at that time and Owen was not on any medication.

This issue remains a source of disagreement between the parents. [ 15 ] Mr. Lockie testified that in his opinion, Owen has a disability and he has behavioral issues. He said Owen is a climber and he would climb all over furniture and on kitchen counters including having been up on the fridge. He indicated Owen does not listen well and he is hyperactive. He testified that Owen would pile up furniture and climb on it and jump off. He said Owen would climb the doorframe and would launch himself off the stairs at school.

He testified that at the time of this incident, Owen could not feed himself and he could not dress himself. He testified Ms. Wong has spoon-fed Owen. [ 16 ] He did concede that Owen could be left in a bathtub alone at age 6 and that he was able to get up and down the basement steps. He also indicated he did not believe Owen would climb on a stove. [ 17 ] Mr. Lockie said Owen currently has issues at school and he now has an aide and others who are helping to deal with his behavioral issues. He indicated in the few months preceding this hearing, he put Owen on a medication to manage his hyperactivity.

He says he has seen an improvement in Owen’s behavior since then. [ 18 ] Ms. Wong contests the characteristics ascribed to Owen in terms of his abilities. She describes Owen as a bright, capable young boy. She acknowledges he is very active but says he is calm when he is with her. She does not agree he cannot dress or feed himself. She does say he is fussy about what he eats and he has to be encouraged to eat, but he does feed himself. She testified he has been in Montessori school full time since age 3, and then pre-school full time and he is now in grade one.

He is, and was at the time of this incident, very capable of feeding and dressing himself. She does not dispute that at times Owen gave her a difficult time eating if he did not like the food, or that he would occasionally ask her to dress him or that he has on occasion climbed on the counter and jumped off to get food. However she disagreed with Mr. Locke’s description of Owen’s behavior and his disability. [ 19 ] Both parents described the home where Owen and Ms. Wong lived. Ms. Wong described her small two-bedroom bungalow house as clean and organized.

She indicated she does not leave things lying around, she does not drink and she does not use drugs. She said the doors each have a deadbolt and a handle lock. Ms. Wong indicated there was nothing really for Owen to climb. It was her evidence that on the day of this incident, she had put their small dog in a kennel in the bathroom; there was a child gate for the basement and Owen had toys, food and the TV available to him while she was gone. She stated that she did not consider him to be in danger and she believed Owen was safe.

On cross examination she acknowledged there were no child locks on the cabinets, there were cleaning supplies accessible and Owen would be able to turn on and off water facets. [ 20 ] Mr. Lockie confirmed there is not much furniture in the house and he said he did not see a child gate when he was there. He said there were tall shelves in the basement, but was unable to say if there were any tools down there as he acknowledged he took most of them when he left. Mr.

Lockie did not testify to any specific danger he saw when he attended at the house on the day of the incident, above the general concern of well-being for Owen. Specifically, he said when he arrived, there were no lighters, knives, or broken bottles, or anything remarkable lying around. He confirmed Owen was watching TV when he arrived. [ 21 ] The police testified they received a complaint from Mr. Lockie that Owen was alone at a house. Their dispatch call was at 5:06 p.m. They responded and arrived at the house of Ms. Wong at 5:20 p.m.

They attended at the back door and after a few knocks and approximately a minute Owen answered the door and confirmed he was home alone. The police entered the house. They found Owen had been watching TV, playing games and snacking on food. They did a quick search of the house and found a phone number for Ms. Wong. They tried to call that number but Ms. Wong did not answer. They also tried to call Mr. Lockie at his contact number and he did not answer either. One officer stayed with Owen and the other went outside to the car to get in touch with their supervisor and Mr. Lockie.

The supervisor attended at the house. At around the time the supervisor arrived, the officer was successful in getting Mr. Lockie on the phone. He advised him Owen was safe. Mr. Lockie then arrived on the scene at 5:50 p.m., about half an hour after the police arrived. The police reached Ms. Wong by telephone and she arrived at 6 p.m. [ 22 ] Officer Prociuk described Owen as a very, very bright and sociable kid. He said he wouldn’t have guessed him to be a six year old. He thought Owen was older. Owen had been snacking on pudding and was playing with puzzles and doing artwork when they arrived. The TV was on.

The officer indicated the house was smallish but generally well kept. The officers indicated they saw no baby gate and said they did not go into the basement at all. [ 23 ] The above description has been set out in some detail because it is important to understand Owen’s situation when he was left alone. [ 24 ] In listening to the parents describe Owen and his abilities as a six year and ten month old I am struck by the different descriptions. I am mindful that there are serious issues between them, including custody and access. I have considered whether this could color the way each parent describes Owen.

I have kept this issue in mind as I assess Owen’s abilities as it impacts the situation in which he was left. [ 25 ] Despite Mr. Lockie’s description of Owen’s challenges, I note there was no independent medical evidence provided and no evidence from Owen’s school as to his challenges and behavior. Without this evidence I cannot determine the extent of any issues with Owen. I cannot determine whether these issues are related to ADD or other causes, such as Owen not seeing or being allowed to communicate with his mother, Ms.

Wong, since the date of this incident, some 14 months as of the date of trial. [ 26 ] I find at the end of the day, the police’s description of Owen and his behavior is very helpful. They found him alone and they are in the best position to describe his behavior and situation at the time. Their description more closely matches that of Ms. Wong’s in

that Owen is an active, bright young child. He got himself snacks, he did not immediately open the door to the police and he was left in awell kept home with no evident or immediate dangers. [27] The police found Owen watching TV, doing puzzles and artwork and snacking. If there is some issue as to hyperactivity inOwen’s behavior at times, it did not seem to have any implications on this particular day as he was found to be entertaining himselfquietly in his living room. There was no evidence of climbing or furniture piling.

Owen was found uninjured and no one testified to anyimminent danger that existed when he was found. The Law [28] The Criminal Code states: s. 218. Everyone who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to beendangered or its health is or is likely to be permanently injured,

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [29] The relevant

definitions are as follows: s. 214. “abandon” or “expose” includes:

a) a willful omission to take charge of a child by a person who is under a legal duty to do so, and

b) dealing with a child in a manner that is likely to leave that child exposed to risk without protection. [30] Defence argues that if there is no imminent danger and no harm did or was likely to occur, and if Ms. Wong did not subjectivelyintend any of these consequences, she should be found not guilty. [31] The Crown argues the fact that Owen was left alone, under the age of 10, is enough to satisfy the essential elements of theoffence as any number of dangers could have occurred.

It is the inherent possibility that the child’s life is likely to be endangered or itshealth is or is likely to be permanently injured that constitutes the offence. The Crown argues the test is an objective one. In thealternative, it argues if the test is a subjective one, Ms. Wong was reckless as to the potential consequences and therefore should be foundguilty under s. 218. [32] Both counsel filed case law to support their positions. [33] The S.C.C. recently considered this Criminal Code provision: [34] In R. v.

A.D.H., 2013 SCC 28 , [2013] 2 S.C.R. 269, 2013 S.C.C. 28 , the S.C.C. considered whether the testwas an objective test or a subjective test. The S.C.C. stated the issue at page 10 , as follows: “Does s. 218 of the Criminal Code require proof that the accused knew that the acts of alleged abandonment or exposure of a child weresuch that the abandoned child’s life was or was likely to be endangered or his or her health permanently injured, as the respondentcontends?

Or, as the appellant Crown contends, is the fault element established by proof that the accused’s conduct constituted a markeddeparture from that expected of a reasonable person in the same circumstances and that the risk to the child’s life or health would havebeen a foreseeable result by such a person?” [35] In answering the question, the S.C.C. traced the legislative history of the provision and it carefully examined the wording of thesection and the

definitions of “abandon” and “expose” to determine if subjective or objective fault was required. It said: “[46] I agree with Richards J.A. that the words ‘abandon’ and ‘expose’ on their face, and standing alone, are indicative of subjectivefault: C.A., at para. 59. They involve more than just leaving a child alone or failing to take care of it: they denote awareness of the riskinvolved.

This view is also perfectly consistent with the statutory non-exhaustive definition of ‘abandon’ or ‘expose’ in s. 214 of theCriminal Code which, as noted earlier, suggests a requirement for knowledge of the consequences flowing from the prohibited acts ofabandonment or exposure. This is also reflected in the jurisprudence. As noted in L.M., abandon means ‘leaving the child to its fate’which suggests

an act accompanied by knowledge of or recklessness as to the consequences: paras. 28 and 47…” [36] Ultimately, the court found that subjective intent was required to prove child abandonment. [37] As such in this case, the subjective intent of Ms. Wong must be examined. But first, further definition of what constitutesabandonment can be found in the case law. [38] In R. v. Bokane-Haraszt, 2007 ONCJ 228 , Justice Bourque of the Ontario Court of Justice, cited and quoted the Ontario District Court decision of, R. v. Reedy ( (ON SC), 60 C.C.C. (2d) 104). He quoted from Reedy as follows: “In R. v.

Davis (1909), 18 O.L.R. 387 of the meaning of ‘abandon’ and ‘desert’, dealing with the Act in question in respect of children,the court at page 387 observed: I think ‘abandon’ and ‘desert’ must, in this legislation, involve a willful omission to take charge of the

child, or some mode of dealing with it calculated to leave it without proper care. Leaving the child with those who had contracted to take proper care of it cannot fairly be called abandonment or desertion – and the further and subsequent act of giving up all claim to the child, is not, I think, an abandonment or desertion with the Act.

The act to be relied upon must be such as indicates such disregard of the welfare of the infant as would show the parent to be unfit to have it given again into his charge. ‘Willful’ means by deliberate or purposeful conduct with full knowledge of, or reckless of or indifferent to the consequences of his act of omission, a callous disregard; a complete and utter disregard for the safety of children.” [ 39 ] Justice Bourque then referred to the circumstances in the Reedy case. He said: “[17] In the Reedy case, a baby sitter who became ill left two children asleep in their beds while he went to the hospital.

The children awoke, dressed themselves, went out to the candy store, and after some time walked onto the road and the three year old was struck by a car and killed. The judge felt unable to find that the defendant babysitter had ‘abandoned’ the children and found him not guilty.” [ 40 ] Justice Bourque in the R. v. Bokane-Haraszt found the accused not guilty in the following circumstance: “A woman is home alone with her four year old, in a suburban townhouse, in Richmond Hill on January 26, 2006. The woman has been staying at that home for about a week and will be returning to Hungary on February 10, 2006.

It is not her house. The house is owned and occupied by a male relation and another man. It is obvious she has little responsibility for the state of the home. [2] She decides to go to the Shoppers Drug Mart Store (approximately 300 meters from the home – a ten to fifteen minute walk). The defendant testified that her child had been suffering an upset stomach in the early morning hours and she had just gotten the child to sleep. She decides to leave the child in bed, walk to the drug store and return. The mother leaves at approximately 10:50 a.m. and returns to the home at 11:56 a.m.

She is greeted by several policemen, who have responded to the call of a passing motorist who has seen the child (partially dressed for the cold) on the sidewalk of an adjoining street heading in the direction of the grocery store.” [ 41 ] He said in the course of his judgment: “That the child may wake up and leave the home was certainly a foreseeable consequence, but I do not believe that from an objective or subjective view was a probable likely scenario within the time frame which existed in this case.

The defendant had testified that she had just gotten the child to sleep after having been up with her for much of the night. [26] If the leaving were for a much longer time, or overnight, or indeed in the night, then her actions would become less reasonable. ‘Momentary’ in the context of a four year old in a home is not the same as ‘momentary’ on the edge of a highway. [27] Taking all of these factors into account and applying the standard proof, I cannot find that the Crown has proved beyond a reasonable doubt that the defendant ‘abandoned’ her child in the circumstances where the child’s life was likely to be endangered (or permanent health endangerment) and therefore I must make a finding of not guilty of the charge as laid.” [ 42 ] Other cases were filed which provide insight into the type of circumstances which may or may not be considered “abandonment” [ 43 ] R. v.

Holzer ,

(1998) CanLII 3795 (AB QB). In this case, a mother who had left her 15-month-old child in a truck, in -14 degree Celsius weather, for longer than 3 hours so she could go and play Bingo was found guilty of abandonment. The child was found crying, cold and with a wet diaper. The expert evidence presented spoke to the risks of hypothermia in such situations. The judge also considered the possibility that the child could have been abducted as a risk. [ 44 ] The Crown filed three cases and in each case, guilty pleas were entered. [ 45 ] R. v. Nguyen 2001 Carswell Ont 485 , 49 W.C.B. (2D) 229 .

A mother left her 7 year old at 4 a.m. to go to a casino and gamble. At approximately 6 a.m., a fire had started in his bedroom. In fact the child had started the fire by lighting a candle inside a pumpkin, which was beside his bed. He went to the superintendents’ apartment and CFS was called. It was proven he had been left alone on previous occasions. [ 46 ] In R. A. (S.C.) a 2010 decision of the BC Provincial Court,

(2010) Carswell BC 2950 , 2010 BCPC 263 , Judge Dohm accepted

the guilty pleas of the parents of a six week old who they had left in their car in temperatures of 27 degrees Celsius, or 40 degrees Celsius with the humidex, while they went to the casino. They had only been gone a short while when a passerby saw the baby and rescued the kicking and screaming child who was taken to the hospital, treated and released. [ 47 ] R. v. Felteau 2005 Carswell Ont 2505 . A mother left a three year old in an apartment sometime before 10:15 p.m. at night. Police were called when the child was seen hanging out the second story apartment building window.

The police and fire department rescued the child. The apartment was littered with beer bottles, rolling papers and a lighter.

The mother did not call the police station until 8 a.m. the following morning. [ 48 ] As mentioned, in all of these cases, guilty pleas were entered. [ 49 ] What the cases show, is in order to prove abandonment beyond a reasonable doubt: • The intention of the person alleged to have abandoned must be understood; • Was the person aware of the consequences of leaving the child or were they reckless with respect to the consequences; • Was there an exposure to risk such that the child’s life is or is likely to be endangered or its health is or is likely to be permanently injured? [ 50 ] Of note, the cases demonstrate there does not have to be actual harm for abandonment to be proven; and in certain cases where actual harm does occur, it can be found there is no abandonment (such as Reedy). [ 51 ] Other factors, which the cases above show are important to consider, are: • The age of the child; • The capabilities of the child and any special issues or disabilities; • The state of the home; • The existence of any dangerous items such as lighters and sharp objects; • The length of time of the absence and; • The reason for the absence. [ 52 ] In this case, it is not disputed Ms.

Wong left Owen alone for 90 minutes. Owen was not yet 7. [ 53 ] As Ms. Wong testified, I consider her evidence in the context of a W.(D.) analysis. [ 54 ] I find Ms. Wong left Owen in a securely locked house, with snacks and activities to keep him occupied for a period of time. I accept she did not have a fear, and there was no evidence she believed, Owen would climb and fall or hurt himself by going into the basement. Ms. Wong locked the dog in a kennel in the bathroom.

This indicates to me she did consider whether the dog could have posed any potential issues if he and Owen had started roughhousing and she negated that. [ 55 ] There were no drugs, alcohol or dangerous items left lying around. While the evidence was unclear as to whether there was a baby gate, not much turns on this as it was clear Owen could go to and from the basement without issue. In addition, there was no evidence there was in fact anything dangerous in the basement. [ 56 ] As stated earlier, I find that at least on this day, Owen was not acting in a hyperactive manner.

He was described by the police as a bright, energetic child who was occupying himself in the living room with TV, puzzles and artwork. The police evidence supports Ms. Wong’s description of Owen. [ 57 ] I find Mr. Lockie’s behavior supports the inference that Ms. Wong would not deliberately or recklessly put her son in harm ’ s way. I find this because, had Mr. Lockie believed his son was in imminent danger, I expect he would have continued straight to the house whether he had called the police or not.

In fact, I find it odd that he did not arrive until half an hour after the police, at approximately 5:50 p.m. , notwithstanding the fact the police were dispatched at 5:06 p.m. , after he called them. This may be explained by his own evidence, that he wanted a witness for the purpose of family proceedings to confirm Owen was alone. Mr. Lockie would have been 20-25 minutes or so away from the house when he saw Ms. Wong alone. He could have been there by approximately 5:30 p.m. if he was convinced Owen was in danger and he went directly there after calling the police. I find Mr.

Lockie exaggerated Owen’s lack of capability and he exaggerated his inability to feed and clothe himself. [ 58 ] With respect to Owen, he did in fact look after himself during this time. To be clear, he should not have been required to do so, but the evidence discloses he was capable of looking after himself for this limited time, in these particular circumstances, where no exigencies presented themselves. [ 59 ] With respect to Ms. Wong’s explanation for leaving Owen alone, I found her evidence to be believable. She readily acknowledged that leaving Owen alone was a mistake.

She indicated she was under great stress at this time and I accept, given her family and financial circumstances and her complete lack of a support network, that she was under a great deal of stress. I accept she intended to take Owen to a sitter when she attended to evening appointments, which began at 8:40 p.m. , as there is no evidence to the contrary, and there was no evidence presented to indicate she left Owen alone on previous occasions. [ 60 ] With respect to the reason for her absence, I find it wanting.

In some of the cases filed, there was an illness requiring the person in charge of the children to leave. The Crown made this distinction. Here, although Ms. Wong indicated she was not well and

wanted medication for herself, she also attended to clients. This is an unacceptable reason to leave a child alone. It was poor judgment. Having said that, even in the cases where the absence was excused because someone was ill, that was not the sole reason for acquittals. The reason to acquit in those cases was the absence of an awareness of the risk involved or an absence of reckless intent as to the consequences. [ 61 ] It is not sufficient in proceeding under this

section to allege a possibility of harm. It is clearly stated in s. 218 that culpability arises if the child’s life is “likely” to be endangered, or “likely” to be permanently injured. As the Court said in R. v. Reedy , abandonment must involve a willful omission to take charge of the child, or some mode of dealing with the child calculated to leave it without proper care. [ 62 ] As the S.C.C. said of the words “abandon” and “expose” in R. v.

ADH “They involve more than just leaving a child alone or failing to take care of it: they denote awareness of the risk involved.” [ 63 ] In this case, the Crown has not proven beyond a reasonable doubt that Ms. Wong was aware of, or reckless about a risk, such that Owen’s life was “likely” to be endangered or “likely” to be permanently injured. There was no actual harm or permanent injury. [ 64 ] As I have said, although I find it to be very poor judgment on Ms.

Wong’s part to have left Owen alone, I believe her evidence that she thought Owen was safe and I accept she did not leave him in a manner calculated to deprive him of proper care. Subjectively she believed Owen to be safe. [ 65 ] Accordingly, I acquit Shan Shan Wong of the charge of child abandonment. _______ ”Original signed by” __________ WIEBE, PCJ