R. v. R.C.L. Date:, 2012 BCPC 53

Citation: R. v. R.C.L. Date: 20120125 2012 BCPC 0053 File No: 168665-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.C.L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: L. O'Grady Counsel for the Defendant: M. Sandhu Place of Hearing: Surrey , B.C.

Dates of Hearing: May 31, June 1, 2, 3, 2010; January 5, May 3, June 7, July 12, Dates of Hearing: July 28, October 24, December 14, 2011; January 9, January 20, 2012 Date of Judgment: January 25, 2012 [ 1 ] THE COURT : R.C.L. has pled guilty to the charge that between October 4, 2008 and October 12, 2008 inclusive, at Surrey, British Columbia, she did improperly or indecently interfere with a dead human body or human remains, contrary to s. 182 (

b) of the Criminal Code . [ 2 ] She is before this court to be sentenced. This is an indictable offence. The maximum penalty is imprisonment for five years. The Crown seeks a sentence of two to three years incarceration in a federal institution. The Crown says the sentence should be at the upper end of that range bearing in mind certain aggravating factors. [ 3 ] Counsel on behalf of this offender asks the court to determine an appropriate sentence to be in the provincial range. He seeks a conditional sentence order in the 18-to-24-month range.

Previous counsel for R.C.L. said that if a period of conventional jail is to be imposed, it should be in the range of 12 to 18 months. Mr. Sandhu, current counsel for R.C.L., has not taken any particular issue with that position, although he stresses the position that a conditional sentence order is appropriate. [ 4 ] The Crown opposes a conditional sentence order because the Crown says that it does not provide adequate recognition for the principles of denunciation and deterrence.

If a sentence of conventional jail is imposed in the provincial range, that is, less than two years, the Crown seeks a three-year probation order. The Crown further seeks an order that R.C.L. provide a sample of her DNA to the national DNA databank. This is what is referred to as a secondary designated offence under the Criminal Code provisions relating to sampling for the databank, and I will now make that order. It is not opposed. There will be an order that R.C.L. provide a sample of her DNA to the national DNA databank.

[ 5 ] Following her arrest on this charge on October 11th of 2008, R.C.L. was granted bail on a $2500 recognizance perfected by way of a $1,000 cash deposit. She was eventually able to perfect that deposit and was released on November 6th of 2008. She had been in custody for about 27 days. Although the matter was eventually set for a four-day trial in the Provincial Court commencing May 31st of 2010, I am advised that plea discussions were underway between counsel at an earlier stage. The dates were fixed to ensure that if discussions were not successful, the trial time was still available.

The plea was entered March 5th of 2010. [ 6 ] Exhibit 1 in these proceedings is an agreed statement of facts which incorporates six attachments referred to as Exhibits A through E, and incorporated into the agreed statement of facts as well is a book of photographs. [ 7 ] The circumstances address the death of Adam Irving Driscoll-Bell, also sometimes known as Wilson, and R.C.L.'s action in respect to his body following his death. The parties were not agreed, however, on what the Crown argued is a significant aggravating circumstance.

The Crown alleged that R.C.L. drew her 11-year-old daughter H. into her efforts to conceal and dispose of Mr. Driscoll- Bell's body, and after her arrest she asked H. to lie to the police. [ 8 ] R.C.L. denied this allegation. The trial dates earlier arranged were then used to hear evidence on this contested issue. I heard evidence from both H. and R.C.L., and various exhibits were filed. On June 23rd of 2010 I gave reasons, finding that the Crown had proven beyond a reasonable doubt that H. did participate in the handling of the body of Mr.

Driscoll-Bell, and that R.C.L. had asked her to lie to the police about circumstances surrounding his death. [ 9 ] A pre-sentence report and a psychological assessment were ordered. The matter was set for sentencing on October 28th of 2010. [ 10 ] On August 10th of 2010, R.C.L. attended for an interview with Dr. LaTorre for the preparation of the psychological assessment. She terminated the interview early. Dr. LaTorre wanted to have access to a report prepared for family proceedings involving R.C.L. and the Ministry of Children and Family Development in 2006.

R.C.L. was not prepared to release it. [ 11 ] On October 8th of 2010, the October 28th sentencing date was adjourned. R.C.L. wished to commission her own psychological or psychiatric assessment and Dr. Alexander Levine had been retained for that purpose. Further, Dr. LaTorre continued to seek access to the 2006 report in order to be able to provide a full assessment for the benefit of the court. [ 12 ] On January 5th of 2011, Crown counsel applied for and I ordered to be released the 2006 report of Dr. Larry Krywaniuk and the transcript of his evidence in those 2006 proceedings.

April 6, 2011 was set for sentencing. Thereafter, R.C.L. cancelled an appointment with Dr. LaTorre because she was pregnant and nearing delivery. On February 22nd of 2011, R.C.L. gave birth to a son. This child has been removed from her care by the Director. [ 13 ] On April 6th of 2011, the matter did not proceed. Sentencing was adjourned due to the recent birth; the report by Dr. LaTorre was not ready. Further, based on information provided that R.C.L. is Métis, a Gladue report was ordered.

It was agreed that R.C.L. would attend for an interview on April 21st of 2011. [ 14 ] June 7, 2011 was set for sentencing submissions. July 12th, 2011 was set as the date that I would impose sentence. On April 28th of 2011, R.C.L. provided insufficient evidence during a telephone interview to allow the Gladue report writer to complete that report, and a further in-person interview was set for May 25th. R.C.L. failed to attend that meeting. She did not respond to telephone calls.

Late on May 26th she went to the writer's office, saying that she had been ill and she had no more information to provide. [ 15 ] The court and the parties were then informed that the Gladue report could not be ready for June the 7th. It was agreed by the parties before me that submissions would proceed on June 7th, but with a further opportunity for the parties to address the Gladue report once it was completed, with the expectation that, subject to the timing and the content of that report, sentence would be imposed as earlier set on July the 12th.

I then ordered R.C.L. to personally appear before me to confirm that a new date had been arranged to complete the interview for the Gladue report. R.C.L. appeared as ordered on June the 10th and confirmed an interview to take place June the 17th. She appeared on June 20th, 2011 to confirm the interview had taken place. The Gladue report was completed and is dated June 28th, 2011. [ 16 ] On July 12th of 2011, the date set for final submissions following completion of the Gladue report, R.C.L. informed the court that she had dismissed her counsel and wished an adjournment in order to seek new counsel.

She said she now took issue with details in the agreed statement of facts. That agreed statement of facts had previously been placed before the court and was before the court at the point that I conducted a hearing to resolve the disputed issues respecting the involvement of H. [ 17 ] The Crown opposed the adjournment.

Bearing in mind the potential for a significant sentence of imprisonment, I concluded that there was a need to ensure that R.C.L. had the opportunity to consider with new counsel the implications of the Gladue report and I granted the adjournment. [ 18 ] On July 20th of 2011, R.C.L. returned to court and advised that she was in discussions with a particular lawyer. On September 7th of 2011 the matter was again adjourned to allow Mr. Ian Donaldson, Q.C., to appear. On September 9th Mr. Donaldson appeared.

He was retained at that point just to review the matter, and asked that I adjourn the matter to September 29th to allow that to happen. On September 26th, Mr. Donaldson wrote to the court to advise that he would not assume the matter on behalf of R.C.L. [ 19 ] On September 29th, R.C.L. advised that Legal Aid was reviewing an application and she expected a reply on October 3rd. On October 5th I was advised Legal Aid had not completed their review. Although dates were set for final submissions and the imposition of sentence, they did not proceed.

By October 24th, the court was informed that R.C.L. had been approved for Legal Aid. [ 20 ] The appearances on October 24th and October 31st of 2011 led to confirmation that R.C.L.'s current counsel, Mr. Sandhu, would take conduct of the matter. The matter was then adjourned to December 14th, 2011 to allow Mr. Sandhu to review the considerable volume of material relating to this case. On December 14th of 2011, Mr. Sandhu confirmed that no other issues would be raised on the sentencing. The Crown and defence agreed to set January 9th, 2012 for final submissions on the Glaude report.

In addition, I ordered R.C.L. to attend the probation office to permit an updated pre-sentence report to be prepared, bearing in mind that the original report was

dated March of 2011. [ 21 ] Further, on December 14, 2011, the court was informed that R.C.L. was again pregnant and that the parties were agreed that the court should await the conclusion of submissions on January the 9th to determine an appropriate date to impose sentence thereafter with the benefit of information as to the state of R.C.L.'s pregnancy at that time.

R.C.L. informed the Crown that she was due in February 2012 and that she was carrying the baby for the foster parents of her son, that son being the son who was born in February of 2011. [ 22 ] R.C.L.'s recognizance required she report as directed to a bail supervisor. She failed to report on December 15th of 2011. On December 30th of 2011, R.C.L. telephoned her supervisor to say that she had been in hospital for two weeks and had delivered a baby by Caesarean section. She would not provide the name of the hospital or the name of the baby. She was told to report January 3rd, 2012.

She did not report, but did call on January 4th saying she could not attend due to the birth. She was told to report on January the 6th. [ 23 ] Meanwhile, efforts to reach her at telephone numbers that R.C.L. had provided in order to arrange a meeting to update the pre- sentence report were made without success by the responsible probation officer. As the court date approached, the probation staff contacted the Ministry social worker involved with R.C.L.

When informed of the pregnancy and recent birth, the social worker said that a province-wide alert to hospitals respecting R.C.L. had been issued in the event she attended any hospital in British Columbia. No report had been received that she had attended and given birth. [ 24 ] Late on January 6th, R.C.L. reported. She provided information that the birth occurred at Children's Hospital. The child was unnamed and was in the care of family in Alberta. Inquiries were made. No record of R.C.L. being in that hospital or having given birth to a child there could be found. [ 25 ] The foster parents were contacted.

They denied that R.C.L. was carrying a baby or was surrogate in a pregnancy for them. [ 26 ] On November 13th of 2011, R.C.L.'s social worker asked her if she was pregnant and she denied that she was pregnant at that time. I am now advised that investigation and inquiries undertaken since her last appearance on January 9th, 2012 have confirmed that R.C.L. entered Women's Hospital under the assumed name of her friend, K.Y., on December 9 of 2011. A baby boy was born that day and given the name C.Y. R.C.L. was not truthful with the social worker in November when she denied that she was pregnant.

She was not truthful with Crown counsel and ultimately with this court when she said on December 14th that she was due in February of 2012 when in fact she had already given birth five days earlier. It has been determined that R.C.L. obtained prescription medication using the name K.Y. [ 27 ] R.C.L. was discharged from hospital following the birth, but the infant was not. He was transferred to Surrey Memorial Hospital under the name C.Y. He was to be discharged January 9th of 2012. On that date, R.C.L. was due in court to hear final submissions in this matter.

However, because of her failure to cooperate, the updated pre-sentence report was not ready. I was informed that had she fully cooperated and attended for the interview on December 15th, the report would have been ready for the January 9th appearance. [ 28 ] The circumstances, as they were understood as of January 9th of 2012, were put before me. I concluded that R.C.L. was actually working and actively working to thwart a timely resolution of this matter.

I no longer had confidence that she would cooperate in the finalization of an updated pre-sentence report and the expeditious conclusion of this matter would be delayed further. I revoked the recognizance and ordered her be detained. The matter was then adjourned to January 20th for completion of the pre-sentence report and to hear final submissions on the Gladue report. [ 29 ] On January 20th of 2012, I was advised of the results of the most recent inquiries respecting the birth of R.C.L.'s child in December.

I was advised that having detained R.C.L. on January the 9th she was, of course, unable to attend the hospital in order to pick up the baby on discharge that day. When no one came to take the infant, the hospital called the Ministry. Because the hospital knew the child by the name Y., no connection was made to R.C.L. Subsequent inquires were made because R.C.L. had a pill prescription bottle with her in the name of Y. at the time that she was taken into custody.

Inquiries through the pharmacy led to the connection being made with the Y. child in hospital, and the child was then apprehended by Ministry staff at the hospital. [ 30 ] Submissions went ahead on January 20th with the benefit of an updated pre-sentence report. Gladue considerations were addressed by both counsel. R.C.L. also addressed the court. Her father was present in the courtroom, and I see he is here again today.

The matter was then adjourned to today's date for the imposition of sentence. [ 31 ] I have provided this detailed chronology of the proceedings before me so that it is clear why it has taken almost 23 months since the plea was entered to bring us to this date on which sentence is to be imposed in this case.

Further, although I am not sentencing R.C.L. specifically for her conduct over those months as I have described it, it is conduct which I must consider in assessing the viability of sentencing options, including a community-based sentence, and I will address that in due course. [ 32 ] The determination of a fit sentence in the case of a serious criminal offence is one of the most challenging tasks faced by a judge.

It requires the court to consider the particular circumstances of the offence, the offender, and the surrounding community within the context of well-established principles, purposes and objectives to be achieved through the sentence to be imposed. [ 33 ] Sentencing is not an arbitrary process. It calls for a careful consideration of all relevant information in order to arrive at a sentence which is tailored to the unique circumstances present in each case.

Section 718 of the Criminal Code states: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [34] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Thiscontemplates an assessment of the moral blameworthiness of the offender in the circumstances. The court must take account ofaggravating and mitigating factors. The sentence should be similar to sentences imposed in similar circumstances and with respect tosimilar offenders.

An offender should not be deprived of liberty if a less restrictive sentence is appropriate in the circumstances. [35] These considerations, set out in the Criminal Code, I must take account of in considering a fit sentence.

They demonstrate thatthe determination of a proper sentence is in every way a principled process which is not driven simply by the strong emotions naturallyarising when criminal behaviour leads to tragic circumstances and consequences. [36] The sentencing regime requires the sentencing court to be mindful of the concepts of balance, restraint, and proportionality whenassessing the weight to be given to the various sentencing objectives and other relevant factors present in the case. In certaincircumstances the court may consider the imposition of a conditional sentence order.

This allows an offender to serve the sentence in thecommunity so long as the offender observes specific conditions set out in the order.

Insofar as it is relevant to this offence, theconditional sentence order is only available if I determine that a fit sentence of imprisonment would be less than two years, that theoffender would not endanger the safety of the community, and that such a sentence is consistent with the fundamental purpose andprinciples of sentencing which I have just outlined. [37] Counsel for R.C.L. takes the position that such an order is appropriate in this case and, as I have indicated, the Crown is opposedto that. [38] A further consideration in R.C.L.'s case is the implication of her Aboriginal circumstances bearing in mind s. 718.2(

e) whichreads as follows: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. Although this consideration is of general remedial application, the unique circumstances of Aboriginal offenders require particularattention in determining the fitness of a sentence of imprisonment. Generally, this subsection supports a legislative desire to lessen theuse of incarceration. The objective is also reflected in the creation of conditional sentence orders.

In respect to Aboriginal offenders, itrequires the sentencing court to bear in mind the particular history and treatment of Aboriginal people which has led to disproportionatelevels of substance and alcohol abuse, health challenges of all kinds, and the substantial over-representation of Aboriginal people in thecourts and the prison system. (R. v. Gladue, (SCC), [1999] SCJ No. 19 at para. 40) [39] The Supreme Court of Canada has pointed out that traditionally Aboriginal communities have relied more on restorative,rehabilitative and remedial approaches to holding people accountable.

The Supreme Court of Canada stated in the case of R. v. Gladue,which is the touchstone for this area of the law and the

interpretation of this

section of the Criminal Code, at paragraph 69 the following: In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors inevaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member. [40] In some of those cases, restorative principles may be more effective in preventing crime and addressing individual and socialhealing. [41] The Supreme Court of Canada has pointed out in Gladue and elsewhere in cases such as R. v.

Proulx, 2000 SCC 5 ,[2000] 1 SCR 61 which is another well-known decision addressing sentencing issues, that a restorative focused sentence is notnecessarily a lighter sentence.

The imposition of strict conditions including such requirements as house arrest or curfew, communitywork service, abstinence, and counselling and treatment requirements can also address denunciation and deterrence if carefullyconstructed. [42] The court in Gladue went on, however, to point out that there will be those serious offences and Aboriginal offenders for whichdenunciation, deterrence and separation will call for custodial sentences.

In those circumstances, the custodial sentence may be less foran Aboriginal offender, although the more serious and violent the offence, the more likely the sentences imposed on Aboriginal and non-Aboriginal offenders will be the same. [43] Throughout the analysis, the overriding purpose and principles of sentencing continue to guide the outcome adopting a holisticapproach. This approach applies to all Aboriginal offenders no matter their living circumstances. [44] I am now going to turn to the circumstances of this particular offence. [45] R.C.L. was 35 years of age at the time of these events.

She was then the mother of six children. R.C.L. became involved in arelationship with D.A. in 2003. In 2007 they moved into a house at [address removed for publication] Avenue in Surrey. Several ofR.C.L.'s children were in Ministry care. R.C.L. required a stable home in order to seek their return. At the time of these events in 2008,R.C.L. was living in the residence with her three youngest children. H. was the oldest of those three, aged 11 at the time. The other twodaughters were aged four and two years. [46] Mr. Driscoll-Bell was a retired friend of R.C.L.'s. He was a drug user.

He could not pay the mortgage on his townhouse and sohe sold it. R.C.L. and D.A. allowed him to move into their basement suite after agreeing on financial arrangements. D.A. became

unhappy with that arrangement. He wanted to evict R.C.L. and Mr. Driscoll-Bell but found this difficult. [ 47 ] D.A. moved out in July of 2008, following allegations that he assaulted R.C.L. In that same month, R.C.L.'s uncle, Mr. T., who suffered Parkinson's Disease and dementia, moved into the residence. [ 48 ] In 2005 Mr. Driscoll-Bell opened a savings account at Vancity Credit Union. In July of 2008, this was made a joint account when R.C.L. was added to that account. The only Interac card for the account was issued in her name. Each month Mr. Driscoll-Bell's pension was deposited directly into that account.

There is a suggestion that R.C.L. misused those funds before and after his death. She acknowledged certain purchases, including the purchase of certain materials from Home Depot used in the commission of the offence, and the purchase of a refrigerator, using funds from the account. Beyond this I am not prepared to find on the evidence before me a more extensive theft of these funds by her. [ 49 ] I am now going to set out at some length paragraphs 7 through 27 of the agreed statement of facts, commencing at paragraph 7: 7.

On October 5th, 2008 during the afternoon hours, Driscoll-Bell and R.C.L. were at the residence at [address removed for publication] Avenue in the children's bedroom upstairs, talking. The children were downstairs playing. At 1638 hours, while R.C.L. was temporarily absent from the room, Driscoll-Bell made a telephone call to 9-1-1 and spoke briefly with the dispatcher. He hung up after 23 seconds. (A transcript of this telephone call is attached as exhibit A.) I will interrupt here to say that during that call to 9-1-1, Mr.

Driscoll-Bell said, "I'm getting killed." The operator responded, "You're getting killed?" And then the call ended. 8. Around this time, R.C.L. told her children to leave the house with Mr. T. and go to a pizza shop. 9. At 16:39:42 the dispatcher called the number back and spoke to a female. The dispatcher requested to speak with the male who had placed the call. The female could be heard in the background telling someone, "Get up. They want to talk to you." After approximately 30 seconds, a male got on the phone. The dispatcher asked if he called 9-1-1 to which he stated that he did call.

The male stated that his name was Irving Bell. He was breathing heavily. His speech was slurred, and he indicated that he had consumed approximately half a bottle of vodka. The dispatcher spoke again with the female who confirmed that her name was R.C.L. The dispatcher explained to R.C.L. that the police would be attending to check on Irving Bell. This call lasted five minutes, 46 seconds. It was the last time that Driscoll-Bell was heard from alive. (A transcript of this phone call is attached as exhibit B to the agreed statement of facts.) 10.

When R.C.L. found out that the police were attending, she made Driscoll-Bell go downstairs to the basement. Something happened on the stairs, and she dragged him to the basement and left him in a pile of laundry. 11. On October 5, 2008 at 1658, seven minutes after the phone call, Cst. Zagorski attended [address removed for publication] Avenue to investigate an abandoned 9-1-1 call. She was greeted at the door by R.C.L. who stated that she knew that a 9-1-1 call had been made and stated that it was Driscoll-Bell who had placed the call.

R.C.L. stated that Driscoll-Bell had been drinking that afternoon and made the call as a joke. According to R.C.L., Driscoll-Bell then left the residence on foot upon realizing that the call was inappropriate. Cst. Zagorski asked if anyone else was in the residence, to which R.C.L. replied no. Cst. Zagorski told R.C.L. that it was necessary to enter the residence to confirm no one was in distress. Cst. Zagorski walked through the house and found no one in need of emergency services. The children were not home. Cst.

Zagorski did not see Driscoll-Bell who was concealed by the dirty laundry at the foot of the stairs in the basement. The house appeared to be undergoing renovation, and there were building materials and supplies strewn about. After Cst. Zagorski had searched the house, R.C.L. stated she and her husband allowed Driscoll-Bell to reside with them as a favour; however, his alcohol abuse and trips to Vancouver for drugs added stress to the household. R.C.L. provided a detailed description of Driscoll-Bell and explained to Cst. Zagorski and Cst.

Morden, an officer who arrived later, that Driscoll-Bell had left in an unknown direction, extremely intoxicated. She said that he had left because he knew police were en route and he was afraid. The two police officers made foot patrols for Driscoll-Bell in the area with negative results. 12. On October 5, 2008 at approximately 5:00 p.m., R.C.L. had a phone conversation with her sister, G.L., and told her that she was in trouble and needed help. At 7:00 p.m. R.C.L. called G.L. and said it was the worst thing that could happen. She said it was about Driscoll-Bell but she didn't want to talk about it on the phone.

G.L. went to R.C.L.'s home shortly after 7:00 p.m. The children were at the home when she arrived. R.C.L. and G.L. went upstairs and had a conversation. R.C.L. then showed G.L. the body of Driscoll-Bell at the foot of the stairs in the basement. His body was bent at the waist and was surrounded by laundry. There were different stages of bruising on him. The sisters discussed various options for disposing of the body. 13. On October 6, 2008, R.C.L. had a phone conversation with D.A. and advised him that Driscoll-Bell was gone. She asked if he wanted to move back in. 14.

On October 6, 2008 at 2201 hours, R.C.L. attended Home Depot at 7350 120 Street in Surrey, B.C. with her three youngest children and purchased a blue nine-by-12 tarp, nine-by-12 clear plastic drop sheet, vinyl gloves, and ten-by-20 clear plastic drop sheet. 15. On October 7, 2008, R.C.L. moved Driscoll-Bell's body from the pile of laundry and wrapped it in the plastic tarps and drop sheets. The body was rolled into the Rubbermaid container and then covered with bark mulch. The lid of the Rubbermaid container was then taped on.

The Rubbermaid container was dragged outside the backdoor of the house and covered with carpet. 16. On the evening of October 8, 2008 between 2000 hours and 2200 hours, G.C., a neighbour next door to R.C.L., saw R.C.L. and her children digging in the backyard with lights on. The manhole cover in the backyard was off, and there were cement blocks on the ground in a pile nearby. R.C.L. told him she was building a foundation for a shed. 17. On Thursday, October 9, 2008, R.C.L. bought a freezer at Easyhome located at 10789 King George Highway. 18.

On October 10, 2008 at 2201 hours, R.C.L. attended Home Depot with one of her children and purchased four pieces of two-by- four-by-eight lumber. She was considering burying the body in the backyard and then building a deck or shed over it.

19. On October 10 of 2008, G.L. phoned Q.B.L., the biological father of H., and told him to check on his daughter's well-being and get H. out of the house because there had been a family emergency. G.L. would not tell Q.B.L. what this was. 20. On October 11 of 2008, R.C.L. returned to Easyhome with a friend, E.C., to exchange the freezer purchased two days earlier for another one. They returned to the home with the new freezer. R.C.L. wanted to move Driscoll-Bell's body into the garage. She wanted to put him into the freezer to minimize the smell of the decomposing body.

At approximately 1600 hours, R.C.L. and E.C. pulled the Rubbermaid box containing the body out from under the pile of carpet. R.C.L. instructed E.C. to get a dolly from the basement. They placed the Rubbermaid box on the dolly and pulled it into the garage. R.C.L. and E.C. discussed putting the body in the freezer. They finally left the box on the floor beside the freezer inside the garage. 21. On October 11 of 2008, Q.B.L. attended the residence of R.C.L. and was surprised to see that R.C.L. would not let him into the house. Usually he was allowed to simply walk into the house.

Q.B.L. was concerned that perhaps his daughter really was in danger and phoned Surrey RCMP to assist him to check on her well-being. At 1715 hours two police officers, Cst. Vlahof and Cst. Froese attended R.C.L.'s home and confirmed that all three girls in the residence were safe, including H. R.C.L. did not tell them about the body of Driscoll-Bell in the garage. Q.B.L. was angry that he had involved the police. He called G.L. to vent his frustration and demanded to know why she had thought H. was in danger.

G.L. then related to him that Driscoll-Bell's dead body was in the basement of R.C.L.'s home and that R.C.L. was looking for assistance to get the body into a freezer. 22. On October 11 of 2008 at approximately 1827 hours, G.L. phoned the Surrey RCMP and reported that Driscoll-Bell's dead body was in the home of R.C.L. She claimed she wanted the police to get her nieces out of the residence. 23. On October 11 of 2008 at approximately 1913 hours, Cpl. Spekat dialled phone number [phone number removed for publication], the number associated to the call made by Driscoll-Bell to 9-1-1 on October 5, 2008.

A female answered the phone, and Cpl. Spekat asked for Irving Driscoll-Bell. The female asked who was calling, and Cpl. Spekat identified herself by name and as a Surrey RCMP officer. The female advised that Driscoll-Bell was no longer there as she had evicted him. Cpl. Spekat thanked her and ended the conversation. 24. On October 11, 2008 at approximately 2114, Surrey RCMP members, including S/Sgt. Gray, Cpl. Spekat, and Cst. Foster, attended at the residence of R.C.L. Cst. Foster knocked on the door and R.C.L. answered. Cst.

Foster explained that the police were there to check on the welfare of Driscoll-Bell, and R.C.L. opened the door saying, "You can come in." She offered to provide police the eviction papers she served to Driscoll-Bell. She advised police of the crawl space and attic. She further advised that Driscoll-Bell would be by in a few days to pick up his belongings. R.C.L. directed S/Sgt. Gray downstairs, saying it was Driscoll-Bell's suite. She said that they were doing construction as Driscoll-Bell had trashed the place. She stated that she had evicted him and was trying to fix up the apartment.

She added that Driscoll-Bell was probably in the downtown eastside area, drinking. 25. All three children were at home, as well as E.C. The house was in disarray due to ongoing renovations. F. was in the bathtub; Mr. T. was upstairs in his room. 26. Police officers searching the garage located a brand new empty freezer in the southwest portion of the garage. In front of the freezer was a large, grey, plastic storage container with a fitted lid. Its dimensions were approximately two feet by two feet by four feet. The plastic container was leaking red liquid which was later determined to be blood.

There were cedar woodchips in the plastic container. The plastic top had been taped to the bottom of the bin with white, plastic tape marked "fragile" in red print. The tape that had secured the lid of the container to the bottom had been cut. There was a large item in the container, wrapped in blue tarp, with packing tape around it. Police used a pair of scissor to cut through two layers of blue tape and three layers of plastic to see a human head underneath. There was a very strong odour coming from the body. Further examination determined that it was the body of Mr. Driscoll-Bell. 27.

Police arrested R.C.L. shortly after. R.C.L.'s mother arrived at the house and took the children into her care. R.C.L. has not had custody of her children since the day of her arrest, and the Ministry has taken full custody of those children. That completes my review of the agreed statement of facts. [ 50 ] Post-mortem examination of Mr. Driscoll-Bell's remains could not determine the cause of death. On testing of blood and urine samples taken from Mr.

Driscoll-Bell's body, a small amount of methamphetamine and alcohol were found. [ 51 ] The facts which I find as relevant from H.'s evidence are the following: [ 52 ] On October 5th, after H. returned home, R.C.L. told H. that "Wilson," which is a nickname H. often referred to Mr. Driscoll-Bell by, had run away from the home. That evening R.C.L.'s sister G.L. came to the house and they talked and then went into the basement. On October 6th, R.C.L. kept H. home from school. H. asked her mother what was wrong. R.C.L. told her that Wilson had died and was in their basement under a pile of laundry.

She was upset and she didn't know what to do. She said Wilson had called the police, that she had threatened to call Pat, and that Wilson had decided to leave. She then told H. that he had a heart attack and fell down the stairs. She said she then dragged him from the bottom of the stairs, through the kitchen and dining room, and down the stairs to the basement where she hid him under the laundry. R.C.L. said that G.L. had suggested dismembering the body and freezing it. [ 53 ] On October 7th she again was kept home from school. She and her mother shopped for a freezer.

She was present when R.C.L. purchased a blue tarp, bungee cord and see-through plastic sheets. Her mother discussed with her ways to dispose of Wilson's body. She referred to freezing him, dismembering him, and burying him. She had the idea that the body could be boiled, and that the body could be bundled up. She thought of building a deck and burying the body under it. [ 54 ] H. and her mother went to the basement. H. observed the body under cardboard and laundry to the right of the dryer. She could see a bit of hair and an arm.

She and her mother dragged the body by the feet, out in front of the washer and the dryer. The body was on its back. The body was clothed in a t-shirt and loose-fitting pants which slid down, exposing the genitals as it was moved. Old bruises and cuts on the body were observed. There was blood by the head. They covered the body with cardboard. H. sprayed an air freshener due to the smell. She asked her mother why she did not call an ambulance. Her mother said because the time was really bad, she didn't

want her kids taken away. [ 55 ] H. described assisting her mother in wrapping Mr. Driscoll-Bell's body. They went to the basement and removed the cardboard covering. They wrapped the body in clear, plastic sheeting. This was not easy; the body had stiffened. They then wrapped the body in the blue tarp, secured it with a bungee cord. They then forced Mr. Driscoll-Bell's body into a plastic Rubbermaid bin. R.C.L. put cedar chips in the bin to keep bugs away. H. put pressure on the side of the bin to allow R.C.L. to fit the lid on. Yellow tape marked "fragile" was then used to wrap the bin and secure the lid.

They moved the container outside onto a patio under the upper-level balcony and hid it under a piece of carpet and other debris. H. sprayed air freshener in the area twice the following day at her mother's request. Her mother discussed building a deck and burying Wilson under the deck but discarded the idea. [ 56 ] On October 11, 2008, H. was present when police attended and arrested her mother. Before leaving, R.C.L. spoke to H. and asked her to tell the police that she had seen Wilson suffer a heart attack and fall down the stairs.

The following day H. gave a statement to the police in which she said she was present when Wilson suffered a heart attack and fell down the stairs. She gave a second statement to the police on October 16th of 2008 in which she said that she was not present, that she provided the earlier story at the request of her mother. [ 57 ] R.C.L. admitted she lied to police when the 9-1-1 operator called back after Mr. Driscoll-Bell's hang-up call by saying that the call was a joke. She lied to police on initial attendance, saying that Mr.

Driscoll-Bell had left, and again on October 11th to police by saying that he had been evicted and was likely in the downtown eastside, drinking. [ 58 ] Those are the circumstances of the offence. [ 59 ] I wish now to speak for a moment about Irving Driscoll-Bell. Present in court on June 7th when I heard submissions were members of Mr. Driscoll-Bell's family, and I know that they are present here today. His son, Graham Bryson, and his daughter, Christine Finnegan, have both prepared victim impact statements which were read by Crown counsel and filed.

I have reviewed both of those statements again in preparing these reasons. They are heartfelt commentaries on the loss of a father and the impact the indignities carried out by R.C.L. have had on both of them. They help us to understand why it is that our community places such importance on the careful and dignified treatment of every person, even in death. Every person, and his or her family, is entitled to know that in death, wherever possible, their remains will be handled properly and with great respect. [ 60 ] Ms.

Finnegan referred to sleepless nights, extreme anxiety, and the anger that she has felt which is contrary to her nature. In his revealing statement, Mr. Bryson said the following, and I am going to quote briefly from Mr. Bryson's victim impact statement. He said this: When the Victoria Police arrived at my door at 8:00 p.m. one evening, a month after his death, and advised me that my father had died, I was, to say the least, very upset. When I met with the RCMP in Surrey and heard of how he was treated after his death, I was devastated and angered.

My father was a kind and gentle person who deserved so much more than being degraded in death. Had the defendant not packaged my father and sealed him in a container, I am told the questions about the cause of death could have been answered. Both the defendant's actions and the questions leave a lingering doubt in my mind which I will continue to live with. The opportunity for closure was taken from me by the defendant. I think about it every day. He went on and said: I do not write this letter as any form of judgment against the defendant; I leave that to those more qualified than myself.

I write it so the court understands that Irving Bell existed. He was a good man, a kind man, a generous man. He was not an important man as society judges status, but he nonetheless deserves to be recognized for the amazing impact he made on so many lives. Mr. Bryson also added: I am proud of my father. I am proud to be able to call him my father. I will miss him and think of him every day for the rest of my life. [ 61 ] I will now address R.C.L.'s circumstances. [ 62 ] I have reviewed the original and the updated pre-sentence report, the court-ordered psychological report prepared by Dr.

LaTorre and dated May 31st, 2011, and the Gladue report dated June 28th, 2011. I have reviewed the psychiatric report commissioned on behalf of R.C.L. by Dr. Levine dated November 15th, 2011. [ 63 ] R.C.L. is now 39 years of age; she was 35 at the time this offence was committed. Those reports document a difficult childhood and adolescence. Her parents separated. She suffered physical and emotional abuse at a young age. She has a limited relationship with her mother; she is closer to her father and a younger sister.

R.C.L. reports that she completed high school and thereafter obtained a variety of post-secondary educational certifications including a Bachelor's degree from UBC and a Microsoft computer certification. She was unable to provide documentation confirming any of these various credentials. UBC has no record of awarding her a degree. [ 64 ] R.C.L. reports that by the age of 14 she was no longer living at home but was on the street. At the age of 15 she began a relationship with a 36-year-old man that lasted three years, during which she gave birth to the first two of her eight children.

Those two children are now aged about 23 and 21. Her other children are from five other relationships and are aged 19, 13, seven, five, and her two youngest boys born in February and December of 2011. Those two most recent children arise from a relationship with a 21-year-old tenant in her home. [ 65 ] Her youngest children have all been apprehended.

She has some ongoing relationship with several of her older children, including her second oldest, a son, who resided in her home at the time the first pre-sentence report was prepared, but I understand now lives in Alberta. [ 66 ] R.C.L. has a limited and somewhat uncertain employment history. Although she claims credentials in the computer technology

field, she has never worked in that area. She has some history working in restaurants. She says her longest period of employment was with a restaurant owned by a former common-law partner for a period of ten years; however, both that common-law partner, who is also the father of one of her children, and his brother who I gather had an interest in the restaurant, deny that she worked there. [ 67 ] When the first pre-sentence report was completed in the spring of 2011, R.C.L. was still living in the home where the offence occurred.

She was not working but earning an income from renting to tenants, including the 21-year-old father of her two youngest children. Her father and his partner, and her son C., also lived there. She described a chaotic situation in that home. She described those living circumstances as very stressful where limited boundaries on personal space existed, and stealing was occurring. She was carrying out renovations at the time.

She said it was "kind of a nightmare." [ 68 ] The updated pre-sentence report discloses that in August of 2011 bailiffs attended the residence and removed all of the occupants and their possessions. R.C.L. was apparently then allowed to return until January of 2012. She had to vacate the residence on January 6th due to a court order. [ 69 ] At some point R.C.L. connected with the Home Heals Recovery Home.

Although she told the pre-sentence report writer that she ended her relationship with the 21-year-old partner in August, he was apparently present with her in court on January 9th and at the interview for the pre-sentence report. She identified him as her boyfriend to the recovery home.

She described her relationship with him not as romantic but as casual. [ 70 ] There is no reliable information available about what housing alternatives are presently available for R.C.L. in the community. [ 71 ] Although R.C.L. has minimized her recent use of illicit drugs in the pre-sentence reports, I am satisfied continuing use of these substances has been occurring. She reported regular use of alcohol and drugs to the staff of the Home Heals Recovery Home. Her recent 21-year-old partner is a known drug user.

In court on the last date in a very emotional address to the court, R.C.L. said her life is out of control. She said she struggles with crystal meth and alcohol, and she has not reached out for help from family who were offering to help, including her father and her older children. She acknowledged addiction and mental health issues which she said she must address. She has a past history of substance use, as I have indicated, which includes methamphetamine, ecstasy, mushrooms, Talwin and Ritalin. [ 72 ] R.C.L. has consumed alcohol from her teenage years.

In the LaTorre report she said that she self-medicates with alcohol and drugs as a way to cope with trauma. In this respect, R.C.L. noted in the pre-sentence report that she consumed alcohol after she realized Mr. Driscoll-Bell was dead. She suggests this might explain her poor judgment. I note as well, however, that her failure to act appropriately extended over a period of several days. Generally, R.C.L. suggests her consumption of alcohol is more limited than it once was. At the time the first pre-sentence report was prepared, she said that she had connected with a program in Vancouver called Daytox.

It is not referred to in the updated pre-sentence report. [ 73 ] Based on his inquiries, Dr. LaTorre concluded there was "a significant history of substance misuse including heavy alcohol and methamphetamine abuse." He was not entirely confident about her self-report to him of reduced use based on a documented tendency in R.C.L. to provide information portraying herself in a positive light. He concludes her history of substance use is of continuing importance.

His testing and analysis led to a conclusion that R.C.L. suffers from a major depressive disorder which may be attributable to alcohol or methamphetamine use and anti-personality disorder. He places R.C.L. at a moderate risk to reoffend.

He concludes that her risk to reoffend "seems to be influenced mainly by her personality disorders and inability to problem-solve ways to handle stressful situations, poor coping strategies and substance misuse." He recommends several programs to address these issues, as well as a substance abuse management program and relapse prevention, and a ban on the use of drugs and alcohol. [ 74 ] Dr. Levine concludes R.C.L. suffered as well from Post Traumatic Stress Disorder. Dr. LaTorre was not prepared to make that finding. Dr.

Levine went on to conclude that R.C.L.'s behaviours were "mainly affected by her underlying psychiatric and psychological disturbances in the context of previous life experiences." I note earlier counsel for R.C.L. at the time of the main submissions in this case suggested that this report is largely consistent with Dr. LaTorre's. [ 75 ] By way of physical health, R.C.L. suffers from a condition called Gitelman’s Syndrome, affecting the functioning of her kidneys. The side effects include heart pain, headache, and redness on her hands which was observed by at least one interviewer. She takes medication for this.

She also suffers from arthritis and asthma, although there are no doctor's reports provided setting out the extent and the implications of any of these conditions for sentencing purposes. [ 76 ] I have reviewed the report dated June 28th of 2011 providing background respecting R.C.L.'s Aboriginal heritage. Her maternal grandmother is a member of the Michipicoten First Nation located in Wa-wa, Ontario. She married a non-Aboriginal man and thereby lost her status. It was later restored by treaty. This grandmother had a serious alcohol dependence and she prostituted for a time.

Her daughter, R.C.L.'s mother, suffered as a result of these circumstances and was abused in foster care. R.C.L.'s mother was ashamed of her Aboriginal heritage, according to the report, and so did not herself apply for status. [ 77 ] R.C.L. spent most of her childhood on a reserve in Alberta with her mother and other relatives before moving to Edmonton in early adolescence. In this situation she described experiencing systemic inequality as experienced by Aboriginal people, including dislocation, poverty, substance abuse and family breakdown.

She was given the responsibility of caring for siblings due to her parents' substance abuse. On occasion she went without food, school supplies or proper clothing due to poverty. She began running away from home at the age of 11. Her father was physically abusive towards her mother and herself. Their lodging was not permanent. They moved frequently. Her schooling was interrupted. At age 14 she began living on the street and, as we know, gave birth to two children by the age of 17. [ 78 ] In the report, R.C.L. said that she wished to reconnect with her Aboriginal heritage.

Her mother has expressed in more recent times an interest in applying for status. R.C.L. has arranged for the transfer of her file at the Ministry of Children and Families to the Aboriginal division so as to access services for herself and her children. Her social worker has advised that she can access services, including visit supervision, parenting classes, for example, through that division. [ 79 ] The report says that R.C.L. does not live near her Aboriginal community of origin so restorative justice services are not feasible

through that community. However, some services are available through the Kla-how-eya Aboriginal Centre which can provide some opportunity to connect with Aboriginal heritage, including a women's support circle, mental health outreach, and employment services. R.C.L. has not, however, pursued efforts to re-engage with these Aboriginal services. She failed to attend an August 4th, 2011 meeting with her social worker to address just those issues. [ 80 ] In court on January 20th, R.C.L. did say that she was motivated and desirous of pursuing her Aboriginal culture and participating in sweats and healing circles.

The report confirmed that systemic issues flowing from her chaotic youth and adolescence "continue to affect her throughout adulthood." [ 81 ] I have reviewed the authorities provided by counsel. Most often, sentences for this offence are imposed together with sentences imposed on other offences often addressing the offender's involvement in the death of the victim.

The most helpful authorities in the present circumstances are those relatively few cases in which, like this case, the offence of interfering with the remains stands alone, unaffected by the totality principle which would apply if, for example, sentencing for a homicide-related offence was also involved here. [ 82 ] In a case called R. v. Valliere , which is a decision in 2005 of Mr. Justice Barrow in the Supreme Court of this province, the offender concealed the body of his girlfriend after she died as a result of an altercation with him. He put the body into a backpack and entombed it in a culvert.

When her disappearance was reported, the offender actively participated in media interviews and searches. Ultimately he provided information to an undercover officer which led to the recovery of the remains 15 months later. He had no prior criminal record. Mr. Justice Barrow imposed an 18-month conventional jail sentence, rejecting a conditional sentence order. He said denunciation and deterrence have significant importance. He determined Mr. Valliere carried a high degree of moral culpability. He noted that planning and premeditation were present.

He referred to the offender's calculated decision to take steps to conceal the body rather than face the inconvenience of a police investigation, and he continued the deception over an extended time. [ 83 ] The court referred to Mr. Valliere's relative youth and lack of any record, and took account of a period of house arrest while on bail. He was in custody approximately three weeks before the bail was set. [ 84 ] The court concluded that a conditional sentence order did not adequately denounce this conduct; only a conventional jail sentence could do so.

In addressing that sentencing objective, Justice Barrow referred to the following statement by the Chief Justice of Canada in R. v. Proulx , supra. He stated: Denunciation is the communication of society's condemnation of the offenders' conduct. A sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

Justice Barrow went on to point out that this is the type of offence for which like-minded individuals may be deterred through the sentencing process. This too supported a conventional jail sentence. ( R. v. Valliere 2005 BCSC 124 Barrow, J.) [ 85 ] In R. v. Holly in 1998, the British Columbia Court of Appeal upheld an 18-month jail sentence imposed following a guilty plea. The deceased died as a result of taking drugs supplied by one of her companions. The offender disposed of her body and did not report her death until he came under police suspicion about a year later. He ultimately led police to her remains.

He was a 50-year-old with a severe drug addiction and lengthy record. The Court of Appeal endorsed the remarks of the sentencing judge who said the offence was aggravated by the offender's decision for selfish reasons, and to protect his illicit drug trade, not to report the death. The sentencing judge emphasized the objectives of denunciation and deterrence. ( R. Holly 1998 Carswell BC 331 (BCCA) ) [ 86 ] R. v. Mackinaw is a 2004 decision of Judge Rounthwaite of this court. It involved the death by suffocation of the offender's 18- month-old son.

He died when the offender, in an intoxicated state, pulled the child to him or rolled over onto the child while sleeping. He pled guilty and was sentenced in respect to an earlier serious assault of the child for which he received a sentence of 18 months consecutive to a sentence for criminal negligence causing the death of four months, and a one-year consecutive sentence for interfering with human remains. He buried the child's body and made up stories about his whereabouts until the body was found a month later. ( R. v.

Mackinaw 2004 BCPC 119 ) [ 87 ] Although the offence of interfering with human remains did not stand alone in that case, I found it useful because the offender was an Aboriginal man, aged 21. He had a youth record for property and breach offences. He grew up in tragic circumstances involving family violence, abandonment, neglect, foster care and significant substance abuse.

He had made remarkable progress in addressing issues during the year preceding his sentencing, although he remained a moderate risk to re-offend. [ 88 ] Judge Rounthwaite referred to the considerations set out by the Supreme Court of Canada in Gladue . She noted that even within the Aboriginal community there will be offences which require a denunciatory and deterrent message delivered best, even in the case of an Aboriginal offender, through a conventional jail sentence. [ 89 ] I note a conditional sentence order was imposed in the case of R. v. Murray in the New Brunswick Supreme Court in 2007.

That was a different case, however, where it is clear that the medical condition of the offender, which was compelling at the time of sentencing, dictated the imposition of a conditional sentence order rather than a conventional jail sentence. ( R. v. Murray 2007 NBQB 306 (NBQB) ) [ 90 ] The unlawful interference with and handling of human remains is viewed as a serious criminal offence. It is abhorrent to the community's basic standards of decency. It frequently prevents a proper determination of the circumstances and cause of death from being made, and that is the case here.

Family members suffer because of this concern for the circumstances under which their loved one died, and of course the utter lack of respect shown after death has occurred. Those emotions are all present in this case. [ 91 ] The acts of the offender in these circumstances are often for selfish motives. Here, the stated reason for failing to alert police was to prevent child welfare staff from stepping in to apprehend the children and carry out their responsibilities. Not only is that motive selfish, but there is simply no evidence to suggest R.C.L. intended to inform authorities of Mr.

Driscoll-Bell's death any time soon. She was taking no steps to do so at the time these events occurred leading to the discovery of his body.

[ 92 ] I note that R.C.L.'s record discloses two old convictions for drinking/driving offences. They are over 20 years old now. She may have been a youth when they were committed. She takes issue with one of those convictions on the basis that she frequently loaned her identification. They are, in any event, not relevant in considering an appropriate sentence in this case. [ 93 ] I take note as well of R.C.L.'s intention to plead guilty at an early stage. Although she contested facts which required a hearing to be resolved, those findings were contrary to her interests.

The plea itself at least resolved some issues which would have been outstanding at a trial and provided resolution for members of Mr. Driscoll-Bell's family in respect to certain of the questions surrounding his death. [ 94 ] But at the end of the day, there remains for them and for the community at large, the significant unresolved question surrounding the reason and mechanics of his death, and importantly, whether in fact he was still alive and could have been saved when police attended and walked through the premises after the 9-1-1 call.

R.C.L.'s actions in failing to report his circumstances and to get medical attention quickly and her active deceit in diverting police inquiries constitute serious criminal conduct involving a human life. Her ongoing active consideration of means to dispose of the body of Mr. Driscoll-Bell and her failure to take steps to bring the circumstances to the attention of authorities over a period of days is highly aggravating, and it belies her explanation that she intended to alert authorities once her children were out of reach of the British Columbia Ministry of Children and Families. She used some of Mr.

Driscoll-Bell's own funds to buy items needed to conceal his body. She continued to lie to police and to divert their inquiries virtually to the moment the body was discovered. [ 95 ] And then there is R.C.L.'s action in implicating her 11-year-old daughter in the plans and then in the actual concealing of the body, and then in calling on this young child to lie to police for her. This is highly aggravating in a case which already carries significant aggravating circumstances.

These factors demonstrate a significant degree of moral blameworthiness. [ 96 ] In these circumstances, the sentence I impose must make a strong statement of denunciation. It must deliver a compelling message of general deterrence. [ 97 ] In respect of specific deterrence, I have considered R.C.L.'s guilty plea and the various reports and the events over the last several months during which R.C.L. has not been forthright with and has actively deceived Ministry staff and hospital staff where the safety of her children is in issue, and her failure to be forthright with this court during that process.

I note she has used false names, and again said at one point her newborn was in Alberta out of reach of Ministry action in this province, which was not true. This recent conduct is consistent with the kind of attitude that helped to create the environment in which this offence was committed over three years ago. It does not suggest a person who has taken any steps over that time to gain a sense of insight into her conduct; indeed, virtually no initiative has been taken by R.C.L. on that front.

Despite R.C.L.'s stated interest, no steps to engage Aboriginal resources, despite Ministry assistance, has been undertaken by her. All of this argues in favour of a sentence which also recognizes that specific deterrence continues to be an issue. [ 98 ] I have also listened carefully to R.C.L.'s words when she spoke to the court at the conclusion of sentencing submissions on the last day. Her statement was lengthy, it was well prepared, and it was delivered in what was clearly a heartfelt and emotional way.

It is the first occasion in which I could say that R.C.L. took responsibility for and had some degree of insight into her conduct in any substantial way. She said that she had to address substance abuse and mental health issues. She said her life was out of control. She said she made bad decisions. She referred to her own experience in foster care and in her family of origin and the impact that has had on her own dealings with Ministry officials in regard to her own children.

She spoke about her failure to recognize and respond to her family's concern for her circumstances, including her father and older children. [ 99 ] She spoke about her distress over Mr. Driscoll-Bell's death and the impact it has had on his family. She described him as a hard- working, kind man, proud of his children. She repeated her desire to engage with Aboriginal tradition and culture. R.C.L. has been in custody since January 9th. She said it has had a profound affect on her. If I could summarize her words, I would say that she does not want to be part of or influenced by that jail culture.

Those were the emotions she stated. [ 100 ] These considerations, together with the implications of R.C.L.'s upbringing as an Aboriginal woman in chaotic circumstances, argue for the recognition of the importance of remedial, restorative and rehabilitative factors in the sentence to be imposed.

Despite the significant aggravating features present in this case, I am not convinced that a sentence at or near the three-year upper end of the Crown's proposed range reflects a proper balance of the deterrent and denunciatory objectives with the remedial and restorative values. [ 101 ] In my view, a sentence in the upper provincial range, with probation, best addresses this balance.

It reflects the seriousness of this conduct manifested in so many ways, balanced with the need to provide encouragement to R.C.L. to pursue, with the determination she spoke of, the significant underlying issues which informed her conduct at the time of this offence and which continue to be present in recent events. [ 102 ] The issue then is to consider whether, under proper conditions, the sentence could be served in the community on a conditional sentence order.

The Criminal Code requires I consider whether her presence in the community would place the security of the community at risk, and whether it would be consistent with the purpose and principles of sentencing. [ 103 ] Despite her developing insight, R.C.L. is not a person who has yet addressed the underlying issues which led to her conduct. She may be on the road heading in that direction, but only barely so, and at the earliest possible stage. Her recent conduct in the community is consistent with her actions at the time Mr.

Driscoll-Bell died; manipulative, deceitful, and lacking in any motivation to take control of her circumstances and to accept assistance and to act in a positive, active way to address what she must. Denunciation and general deterrence, and to a somewhat lesser degree specific deterrence, continue to require a strong message. [ 104 ] This is an offence committed in circumstances that, despite R.C.L.'s Aboriginal heritage and the implications of her own upbringing, requires a period of incarceration in a conventional jail setting.

A conditional sentence order would not adequately address those sentencing principles. Remedial and restorative objectives are important but they cannot overcome at this moment the community's security concerns and the balancing of sentencing objectives such that even a highly-structured conditional sentence order would be appropriate. I am not confident that R.C.L. could or would comply with a lengthy conditional sentence order, even if tightly

constructed. [ 105 ] R.C.L. has been in custody a total of 44 days comprising the period from her arrest on the charge in 2008 to perfecting bail, and the period since January 9th of 2012 to today's date. She is entitled to double credit for those days totalling 88 days. [ 106 ] R.C.L., please stand now. [ 107 ] I grant that credit of 88 days. I impose the additional sentence of incarceration of 21 months. [ 108 ] Following your release you will be bound by a probation order for a period of three years.

The conditions of that probation order will be that you keep the peace and be of good behaviour, that you report forthwith following your release to a probation officer and thereafter as directed by the probation officer. [ 109 ] You will reside where directed by the probation officer and you will not change that address without the prior written approval of the probation officer, and that residence may include a residential treatment program if directed by the probation officer.

You will follow the rules and regulations of that residence. [ 110 ] I am now going to include conditions that were proposed by the probation officer.

They are the following, and they are included in the pre-sentence report most recently provided. [ 111 ] You will attend for such psychological and/or psychiatric counselling and treatment as directed by the probation officer, including attendance at the Forensic Psychiatric Services Commission, having agreed to such treatment in court. [ 112 ] You will attend, participate in and successfully complete such counselling, treatment and/or programming which may include but is not limited to issues of substance abuse, as directed by and to the satisfaction of the probation officer. [ 113 ] You will abstain absolutely from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for those substances issued in your name by a qualified medical practitioner. [ 114 ] You will be bound by a curfew.

You are not to be outside of your place of residence between the hours of ten o'clock in the evening and six o'clock in the morning, seven days a week, except where you have the prior written approval of the probation officer, in which case you are to carry that with you and present it on request of a peace officer or probation officer, or in the event of a medical emergency involving yourself or an immediate member of your family. [ 115 ] You are not to possess any weapon as defined in the Criminal Code .

You are not to possess any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any related authorization, licence or registration certificate. [ 116 ] In addition, I am going to order that you complete 75 hours of community work service before the end of the second year of the probation period. [ 117 ] The victim surcharge is of course waived. [ 118 ] I have previously made an order that you provide a sample of your DNA to the national databank, that to be provided by way of sampling conducted while serving this sentence. (REASONS FOR SENTENCE CONCLUDED)