R. v. A.N. Date:, 2016 BCPC 246

Citation: R. v. A.N. Date: 20160603 2016 BCPC 246 File No: 206799-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. A.N. REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. GILLESPIE Counsel for the Crown: W. Sayson, Q.C. and C. Stewart Counsel for the Defendant: M.R. Shapray Place of Hearing: Surrey , B.C. Date of Hearing: June 3, 2016 Date of Judgment: June 3, 2016

BACKGROUND [ 1 ] A.N. has pled guilty to an offence of failing to provide the necessaries of life to B.N., thus endangering the life of B.N., contrary to section 215(2) (

b) of the Criminal Code from April 7, 2014, inclusive of June 14, 2014. [ 2 ] A.N. is B.N.’s biological mother. B.N. was born [DOB]. B.N.’s biological father was not present for his birth and was not involved in any way in his subsequent care. B.N. had regular medical check-ups until he was 10 months old. He was seen by a doctor one more time when he was 22 months old at a walk in clinic. No weight or height measurements were obtained at this time, but A.N. was instructed to contact public health to arrange for his vaccinations.

The doctor noted he had eczema. [ 3 ] From the time B.N. was six-months-old until the time he was brought to the hospital, A.N. owned and operated a restaurant. She worked long hours and B.N. was with her at the restaurant, primarily in the kitchen and pantry area. [ 4 ] On June 14, 2014, A.N. brought B.N. to Eagle Ridge Hospital in Port Moody, BC. B.N. was in pre-cardiac arrest, was malnourished and would have died if he had not received immediate medical treatment. B.N. remained in hospital care until July 10, 2014.

In the opinion of the medical care providers, B.N.’s malnourishment resulted from at least a period of multiple weeks to months where he did not receive adequate nutrition. [ 5 ] B.N. was removed from his mother’s care by the Ministry of Child and Family Development [“MCFD”] on June 16, 2014. ISSUE [6] The Crown has proceeded by indictment and the maximum penalty for this offence is 5 years imprisonment. A Conditional Sentence Order [“CSO”] is available for this offence. Crown counsel submits that a sentence of 18 months to 2 years less 1 day of jail is appropriate, followed by a 2 year probation order.

They submit that a CSO, while available, does not adequately address the principles of sentence. Defence counsel does not dispute that a jail sentence is within the range of appropriate sentences, but submits that the principles of sentence can be adequately addressed by the imposition of a CSO of 18 to 24 months with carefully crafted conditions that in this case will address the principles of sentence, including the need to denounce and deter this conduct. In the event that I do not find that a CSO is an appropriate sentence, defence counsel submits that a 6 month jail sentence is appropriate.

CIRCUMSTANCES OF THE OFFENCE [7] B.N. is the son of A.N. He was born [DOB] and lived with his mother up until June 14, 2014, when A.N. took him to Eagle Ridge Hospital in Port Moody. Upon initial examination, medical practitioners were extremely concerned for B.N.’s well-being, as he was semi-conscious and in a state of pre-cardiac arrest. The medical staff began resuscitation efforts due to his low heart rate. B.N. would have died had he not have received immediate and intensive medical intervention at the hospital.

Within hours of his admittance to the hospital and after doctors stabilized his heart rate, he was transferred to BC Children’s Hospital, where he remained until July 10, 2014. [8] Medical staff observed that B.N. was severely underweight: he weighed seven kilograms at the time of his admittance to the hospital, which is the normal weight for a four-month- old baby, not a two-year-old child. He was unresponsive to pain and his body temperature was 10 degrees below normal.

He had a swollen abdomen, very little muscle mass, wispy hair, scaling rash covering his body and a severe diaper rash, with open sores visible on his bottom. Physicians diagnosed that he suffered from severe malnourishment that resulted from a period of multiple weeks to multiple months of insufficient feeding.

He had a 25 percent chance of mortality during the re-feeding process. [9] While at BC Children’s hospital the dietician’s opinion was that B.N. had received less than 375 calories/day, in contrast to the normal caloric requirements of 950-1000 calories/day for a child that age. [10] The physiotherapist who treated B.N. at BC Children’s hospital was of the view that B.N.’s developmental level at the time he was admitted was consistent with a six-month-old. [11] Police officers obtained video clips of B.N.’s recovery in BC Children’s hospital.

In the first week in the intensive care unit, B.N. was placed under heating blankets. Medical practitioners described his condition as unstable. At this time he was unable to sit or stand unaided. [12] By June 26, 2014, B.N. was able to sit in his bed unassisted, but he still had very little muscle mass in his arms and legs. He was more interactive and significantly less bloated. By July 4, 2014, he was sitting up and able to support himself and was capable of feeding himself.

His level of interaction with other people had improved significantly. [13] By July 18, 2014, he was able to stand with assistance and was able to pull himself up. He was making verbal sounds and was noted to be smiling and eating. His condition had improved significantly. B.N. remained at the BC Children’s hospital for nearly one month until his medical condition was stabilized. He was transferred to Sunny Hill Hospital on July 10, 2014.

By the end of August, 2014, B.N. weighed 9.575 kilograms. [14] B.N. continues to make significant progress in his recovery, although the doctor’s cannot say if there will be any lasting impacts on him cognitively as a result of the malnourishment he experienced. He exhibits some delay in his cognitive functioning and his language, motor skills and social development are delayed for his age. He regularly visits a number of medical caregivers to aid him in his recovery. His speech is delayed but there have been significant improvements.

He now speaks in three to four word sentences. [15] For the first 10 months of B.N.’s life, Dr. Ruby Ng was his treating physician and she saw B.N. regularly. A.N. stopped taking B.N. for regular medical visits after this time. He did not receive his 12 or 18 month scheduled immunizations. On April 7, 2014, A.N.

brought B.N. to a walk-in clinic and was told that the clinic did not immunize babies and she would need to go to the public health clinic. She did not take B.N. to the public health clinic for these immunizations. Dr. Dressler saw B.N. at the walk in clinic in April 2014. No measurements of B.N.’s weight or height were obtained by the doctor, although the doctor noted the presence of eczema on B.N. [16] A.N. brought B.N. to Eagle Ridge Hospital of her own accord on June 14, 2014. She dropped him off and did not remain at the hospital for long, advising hospital staff that she needed to return to work.

She did not return to the hospital again. B.N. was removed by the MCFD from A.N.’s care on June 16, 2014, and ultimately placed in foster care when he was discharged from the hospital. On April 4, 2016, A.N. consented to B.N. remaining in the continuing care of the MCFD. She has not seen B.N. since June, 2014. [17] A.N. purchased a Café and Grill in Port Coquitlam [the “Café”] when B.N. was approximately six-months-old. She employed a number of her family members, including her sisters, her mother and B.N.’s biological father. [18] She worked long hours at the Café, seven days a week.

During this time she was also B.N.’s primary care giver and he remained in the kitchen area and the pantry of the restaurant while she cooked food. Her sister, B, observed that during this time she would hear B.N. in the back, but never see him. She believed he spent many hours in the pantry in the kitchen. Police discovered items suitable for use for an infant in the pantry including a child’s car seat, with no padding on it, and dirty clothing. C.C., A.N.’s mother also said that she did not see B.N. when she worked there because he was in the storage room.

None of these family members helped A.N. care for B.N., although as described above, they appeared to know B.N. was present in the storage area of the kitchen at the Café, and did nothing about it. B described that she did not have a good relationship with her sister, A.N. Although it appears she, along with her family members, were willing to be employed by her. B also noted that A.N. did not live with her mother where the rest of the family resided. Apparently for much of the time while A.N. operated the Café she and B.N. did not have a permanent residence and often slept there.

This also did not seem to trouble A.N.’s family. In any case, while A.N.’s family worked for her at the Café, they did not appear to provide any child care for B.N. A.N. made no independent child care arrangements for B.N. Therefore, during the long hours that she worked in the small back kitchen area, B.N. was with her at all times, in the kitchen or pantry. [19] Photos of the kitchen area at the Café were filed in the sentencing hearing. It was not a large space.

There was a cooking area and a pantry/storage room that was previously described above and referenced by her family members in their statements to police. Food and cleaning supplies were stored in the pantry, along with an unpadded child’s car seat and some dirty children’s clothes. There was no play area. A blanket and a pillow were located by police under the till area in the front of the Café. This was used by A.N. and B.N. to sleep on. COMPLAINT TO MCFD [20] In November 2013 there was an anonymous complaint to the Ministry of Children and Family Development [“MCFD”] about A.N.’s care of B.N.

MCFD followed up on this complaint in April/May, 2014. A social worker met with A.N. at the Cafe. A.N. advised the social worker that she did not have any concerns about her child’s development. B.N. was not present during the meeting. A.N. also advised the social worker that she had family support in raising B.N., and that his vaccinations were up to date. These latter two assertions appear to be contrary to the information A.N. provided to Dr. Fairweather, where she said she had no driver’s license to take her child to the doctor and she received no help from her family.

CIRCUMSTANCES OF THE OFFENDER Psychological Assessment Report – Dr. David Fairweather [21] Dr. David Fairweather is a psychologist and he prepared a psychological assessment for the sentencing hearing. I note that most of the information in the report prepared by Dr. Fairweather was provided directly by A.N. and does not appear to be corroborated in any significant way by any other collateral contacts. [22] A.N. was born in Vancouver. Her parents were from China.

They immigrated to Canada before she was born and sent her back to China when she was 10 months old to be raised by her paternal grandparents, as her parents were seeking to establish themselves in Canada, and according to A.N., had little time for her. She was close to her paternal grandfather, but not to her grandmother. She returned to Canada when she was five-years-old, along with these grandparents who came to Canada, too. When she returned, A.N. describes that her mother was pregnant with her sister, and another sister followed quickly.

A.N. reported that she did not live with her parents like her sisters did; rather she remained with her grandparents. A.N. described that her mother and paternal grandmother did not get along and she was caught in the middle of their conflict. She felt unwelcome in her biological family and her relationships with her father, mother and siblings were strained. A.N. also described herself during her childhood as very oppositional to her family, especially her parents. She believed that this opposition caused issues between her parents, as her father was very critical of her mother’s inability to manage her.

A.N. also noted that her father also often sided with his mother against A.N.’s mother (his wife) when there was conflict. She now sees that this created a very difficult situation for A.N.’s mother. A.N. reported that she was oppositional towards her parents because her grandmother and mother fought bitterly, and she believed she needed to be loyal to her grandmother, so she could maintain her relationship with her grandfather, who was kind and supportive of A.N. A.N. also reported to Dr. Fairweather that her mother hit her when she was aged 8-10 and that MCFD was called.

After this, her mother no longer physically disciplined her, but A.N. reported that she was assaultive towards her mother at times. When she was 10, her extended family all moved in together in one location. This created more problems. However, she recalls that her mother actively sought to diminish her paternal grandmother’s influence on her. [23] A.N. reported that she “did ok” in school. Early on, she was apparently held back one year. In contrast to her behaviour at home, A.N. reported that she was not a behavioural problem at school.

By high school she reports she received A’s and B’s and graduated on the honour role. [24] Despite the stress in her family, A.N. reported to Dr. Fairweather that she preferred the company of her family members to friends. She also said she preferred the company of older people.

[25] A.N. described that she held many jobs while attending school and after she graduated. She met B.N.’s father at the car dealership where they both worked. They dated less than six months and married in 2011. She described that she had a difficult relationship with his mother. She also said that her father was very forceful about the marriage, and she describes that it was her father’s idea that they have a baby. For much of her pregnancy she was not living with B.N.’s father. Instead, she went back to her family home, but B.N.’s father moved in to that family home at some point again.

Her father did not want B.N.’s father in the house according to her, but her mother did, and this she believes contributed significantly to her parent’s divorce in 2012. [26] She described further moves by her family to other communal living arrangements. She recalls her mother’s parents came to Canada and resided with the family for a short time. They ultimately obtained their own home. [27] When A.N. was in in her early teens, she helped her mother out with her businesses after school and on weekends. Her mother operated a convenience store and a restaurant at some point.

Around this time, her brothers were also born and, in her view, they were treated better by the adults in her life. [28] B.N. was born [DOB] by Caesarean section. According to A.N., B.N. was oxygen deprived for two minutes, placed in intensive care for a week and was prescribed anti-seizure medication for three months. She described that her family members did not view him as “normal”, were not welcoming towards him and provided no help to her.

She reports that she was concerned that he would have future health problems and this motivated her to start her own business so that she would be financially able to provide for him in the future. She also reported that she agreed to seek no financial support for her son, although it is not clear to me why she made this agreement, and she does not provide any reason for this. [29] At this point in her interview with Dr. Fairweather, he notes that she was extremely upset, and remorseful about what she characterized as “not putting her fullest attention” towards her child.

She told the doctor that she loved her son, but had no driver’s license, which made it very hard to get medical care for her child. She also did not want to ask for help from her family members. She had no child care and kept B.N. in the back of the kitchen with her. She “highlighted” the enormous amount of stress she felt in trying to make her business a success. When describing her workload she said it was “enormous and unworkable”. She acknowledged that she did not “pay much attention” to her child, because “she had so much on her mind”. She noticed he was “skinny”, but thought that it was normal.

She set an alarm to remind herself to feed him. She said she gave him adult food. She also described that she and B.N. slept at the restaurant from 3:00 - 6:00 a.m., most days. [30] Dr. Fairweather questioned her about her child’s deteriorating health condition and she explained that “it all slowly built up”, and while he could stand, she became concerned he was not able to walk. She described that “she missed it” when speaking about her cognizance of his worsening health situation. She said that her restaurant business was foremost in her mind and she worried if it failed that she would be sued.

She described receiving no help from her family. They threatened to leave and not work there. She told Dr. Fairweather that her neglect of B.N.’s health was not intentional. She described that the night before she took B.N. to the hospital she was very tired, woke up and B.N.’s blankets were off him and he was extremely cold in a wet diaper, lying in the storage room. She believed this incident explained why B.N.’s body temperature was so low the following day. [31] Since B.N. was removed from her care, she reports selling the cafe, and is now employed at another restaurant in Richmond.

For the past year, she has been in a common law relationship with a man in his mid-sixties. She has not seen her son since he was removed from her care, nearly two years ago. Her contact with her family is minimal, citing that her father blames her for his break up with her mother and her mother is occupied with the rest of the family who lives with her mom. [32] Regarding therapy/counselling she expresses little insight in to how it may help her. She believes that if she stays away from her family she will be fine. As noted by Dr.

Fairweather her motivation for psychotherapy appears low. [33] Five psychological tests were administered by Dr. Fairweather. In respect of the trauma symptom inventory, he notes that she scored quite high in the problematic range. He did not detect any sign of impression management and thus believes the results are quite accurate. The testing results did not disclose evidence of suicidal ideations. [34] The PCL suggested that A.N. presented as a very low risk to reoffend. [35] Dr.

Fairweather’s conclusions in his report include observations that her childhood experiences have left her with an “impaired emotional/personality development” which “contributes to major attachment/bonding deficits”, which ultimately “compromised her capacity to form healthy relationships, as well as to form a parenting role herself”.

When her child B.N. was born, her belief was that she needed to provide financially for her son whom she believed would need greater medical care in the future. “Tending to her son’s basic development needs, it seems, was not a priority, but rather something to be fit in amongst all of her other ongoing work demands”. He also notes that employing many of her family members contributed to her pressure to have the cafe succeed and to “redeem herself” in the eyes of her family. [36] Dr.

Fairweather concludes, and Crown counsel agrees for the purpose of this sentencing that A.N. did not intentionally set out to deprive her child of the necessaries of life, and therefore put his life at risk. Dr. Fairweather opines that instead, she was “isolated, exhausted and damaged emotionally due to attachment/bonding/empathic/personality deficits arising from her own emotionally impoverished childhood”. She was not “attuned” to her own son’s basic needs because she was overwhelmed with “fending off bankruptcy”, ironically because she needed to be in a position to care for her son’s needs later. [37] Dr.

Fairweather diagnoses an attachment disorder that manifested itself in her youth. As an adult, he suggests that the “available data” suggests a “mixed personality disorder with avoidant, dependant, and obsessive-compulsive features”. He describes that these types of people “may also be workaholics, and yet their vulnerability to become absorbed with details and organization can diminish their capacity to succeed as they may lose sight of the bigger picture”. [38] Dr.

Fairweather assesses A.N.’s risk of future criminal behaviour, outside of the scenario of A.N. becoming pregnant again, as being low and concludes that her risk is manageable in the community.

[39] From a mental health perspective, Dr. Fairweather concludes that psychotherapy would be beneficial to assist A.N. in resolving some of her childhood issues. Although he notes that A.N. would likely seek to avoid this type of intervention and instead work long hours to “distract” herself from this “painful process”.

A custodial sentence would, in his view, interrupt her “avoidance/coping strategies”, and he anticipated that her emotional/mood functioning would be negatively impacted, including a potentially elevated risk for self-harm in light of some of the anticipated risk factors (loss of support, associated feelings of hopelessness, guilt/shame and the possibility of suicidal ideation). POSITIONS OF THE PARTIES Crown’s Position [40] Crown counsel submits that the accused has entered a plea of guilty, thus sparing the state the expense of a complicated and lengthy trial. As well, the Crown agrees that A.N. is remorseful.

Furthermore, she is a youthful first time offender who is gainfully employed, and had a troubled and difficult upbringing. [41] In aggravation, the Crown submits that the offender is in a position of trust and was the child’s only caregiver during the period of time when the offence was committed. The Crown submits this is an aggravating factor under

section 718.2(iii) of the Criminal Code . The extreme young age of the child is a further aggravating factor under

section 718.2 (ii.1) of the Criminal Code . Moreover, the Crown submits that the neglect was profound and prolonged, not a momentary lapse in judgement. Further, the neglect has had a profound impact on B.N. It placed him in a dangerous medical condition. He continues to have developmental delays to this date. It is unknown what, if any, long term impacts this will have on B.N. as he ages. The accused was not lacking in resources, she worked in a kitchen where there was ample food. MCFD previously visited and questioned the accused about her son’s well-being.

This should have heightened her awareness about his health. Absence of physical abuse is not a mitigating factor. [42] Crown counsel submits that the case law makes it clear that the primary principles of sentence engaged when neglect and abuse of children by their caregivers is present are deterrence and denunciation. Children are in a uniquely vulnerable position and rely on their parents to care for them and protect them from harm. Because of the presence of the aggravating factors in this case, Crown counsel submits that a jail sentence of 18 to 24 months is appropriate.

Crown also submits that a CSO, while technically available, is not appropriate because it would be inconsistent with the fundamental principles of sentencing. In their submission, the accused made a conscious decision to put the success of her business ahead of her child’s well-being. The accused’s neglect of her child was profound, resulting in significant impairment to him to the extent that he was unable to sit up on his own or stand or walk. His condition was so grave that he was placed in intensive care and doctors worried he might not live.

Two years later he still needs significant support in the community as he continues his recovery. The Crown submits that this is a case where the need for denunciation is so pressing that the only suitable way for society to express its condemnation of A.N.’s behaviour is to impose a jail sentence of 18 months to 2 years, followed by 2 years of probation. Defence Position on Sentencing [43] Defence counsel submits that the period of time over which the malnourishment can be established is from April 7, 2014 through June 14, 2014.

A.N. realized that her son was in a poor state and she voluntarily took him to the hospital for treatment. It is in this window of time that things went terribly awry for A.N. and B.N. [44] A.N. has entered a guilty plea which is significant in this case. There were many triable issues and she has chosen to enter a guilty plea to resolve this matter. [45] A.N. struggled in her youth. She was essentially abandoned by her family when she was very young and sent to China to live with her grandparents.

When she returned she lived outside of the family home and was thrust in the middle of the raging conflict between her grandmother and her mother. Even though she was the child, she was left with the feeling that she was to blame for this behaviour. She was also exposed to physical and emotional abuse by her biological mother, and while this appears to have resolved itself after the MCFD intervention, she never had a close and loving relationship with her mother, whom she believed was always far more concerned about her other children.

This continued when she was running the Café and received no assistance with child care from her family members, even though they knew her child was with her and she was working very long hours to keep the restaurant afloat. She was also a young woman, only 21 at the time she was tasked with being a parent and running a restaurant. Much of the accused’s motivation in running this business was to ensure that she would have sufficient funds to support her son, whom she believed was unwell and would require future enhanced care.

She was emotionally distanced from her family and other external supports. [46] Defence also submits that due, at least in part, to the accused’s difficult upbringing she suffers from an “attachment disorder that has now manifested in early adulthood in the form of a mixed personality disorder with avoidant, dependant and obsessive compulsive features”. Dr.

Fairweather notes among other things that people with this disorder may also be “workaholics and yet their vulnerability to become absorbed with details and organization can diminish their capacity to succeed as they may lose sight of the bigger picture”. [47] In defence counsel’s submission, the underlying conduct is the malnourishment of the accused’s child in the context of the surrounding circumstances, which includes the difficult upbringing of the accused and near emotional exclusion by her parents from the rest of the family, for reasons that are related to conflict her parents ultimately created between themselves and her father’s parents.

Furthermore, the context of the neglect defence counsel submits is very important. There was no physical abuse nor was B.N. totally disregarded as is the situation in other cases the Crown relies on. There is also an absence of evidence in these proceedings, defence submits, where I can conclude that B.N. will suffer long term difficulties as a result of this malnourishment. There is information from the accused about B.N.’s difficult birth and it is not known the degree to which there may be some causal links to B.N.’s development, too.

The evidence is inconclusive. [48] Defence counsel relies on the authorities summarized below, where courts have found that CSOs are available and do address the principles of sentence adequately where punitive terms are added into specially crafted conditions. For example, in the cases of Nanfo , infra, and Goertz , infra, both judgments reference the absence of intentional cruelty. In Maloney there was no evidence of an

intentional infliction of harm. [49] Ultimately, defence counsel submits that the accused agrees she ought to have known her child was in a deteriorating condition. But, defence counsel submits that the period of time this occurred over was a relatively short duration. She lost focus while she was working incredibly long hours to keep the business afloat to support herself, her son, and ultimately her family, too. Defence counsel rejects the submission that she has a lack of insight into her behaviour: her guilty plea is evidence of this. Ultimately, she is a young woman, with no criminal history.

She is not a risk to the community: her risk to reoffend is very low. She was thrust into a situation she was not able to handle and she had no support from her family, rather they looked to her to support them. Defence counsel submits that a jail sentence is the appropriate sentence, but it can be served conditionally.

THE PRINCIPLES OF SENTENCE [50] The applicable Principles of Sentence are set out in sections 718, 718.01, 718.1, 718.2 . 718 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; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. ... [51] The availability of CSO’s is governed by

section 742.1 of the Code . It states that: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. [43] Madam Justice Bennett in R. v. O. , 2012 BCCA 129 , in the context of an appeal regarding the sentence for aggravated assault and failing to provide the necessaries of life in relation to the offender’s three-year-old niece, noted at paras. 41-45 the following in relation to the application of the principles of sentence:

[41]A sentence is crafted by the consideration, weighing and balancing of all of the circumstances, overlaid by the principles andpurpose of sentencing. As Lamer C.J.C. said in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 82: [82] … In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing todetermine a just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of theoffender. [42] Although ranges assist in determining a just and appropriate sentence, they are guidelines, rather than rules.

A sentence outsideof the range is not necessarily an unfit sentence if it otherwise accords with the principles and objectives of sentencing. (Nasogaluak atpara. 44.) Proportionality of the sentence [43] The principle of proportionality was recently explained in Nasogaluak at para. 42: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J.V. Roberts and D.P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [Emphasis in original.] [44] Proportionality requires examination of not only the effect of the crime, but also the circumstances under which it was committedand the circumstances of the offender. If only the consequences to A. were considered, then the sentence under appeal could not be saidto be proportionate. The crimes committed were grave and had dire consequences. A. was severely burned and suffered acutely forseveral days.

She was shaken on two separate occasions, which resulted in catastrophic enduring injuries. The essence of her life hasbeen taken away from her. [45] However, in a just society, we look at more than just the consequences of a crime for the victim. We also must examine theother circumstances in the context of all of the sentencing principles, including the unique systemic and background factors of anAboriginal offender. REVIEW OF THE SENTENCING AUTHORITIES [52] Counsel have submitted the following authorities for my review: R. v. M.D., [2013] OJ No. 5179; R. v. S.J., 2015 ONCA 97, [2015] OJ No. 669; R. v.

E.T., 2012 SKQB 169 , [2012] SJ No. 276; R. v. W.K. [2012] O.J. No. 867; R. v. C.J.O.,2012 BCCA 129; R. v. T.T., 2012 ONSC 4346; R. v. Nanfo, 2008 ONCJ 313; R. v. Goertz, [2005] OJ No. 3291; R. v. M.M., [1998] OJNo 3032; R. v. Maloney, 2012 NSSC 250; R. v. JI, 2006 ONCJ 356; R. v. D.E., 2005 O.J. no. 2589, R. v. J.A.R., 2012 BCPC 347; and R.v. S.J., 2015 ONCA 97. [53] I have reviewed each of the above noted cases. I will summarize them below. I note that sentencing ranges are helpful for meto review and in a very general way define a range of sentence for these types of offences.

However, as both counsel point out in theirsubmissions in the case before me, the range of sentence is very broad and includes suspended sentences, CSOs and jail sentences. Sentencing is a highly individualized process and while I am guided by the authorities provided to me, I am mindful that none of themreflect the same circumstances as the ones that exist in the case before me. [54] In R. v. M.D., [2013] OJ No. 5179, the accused was the mother of two children aged four-years and an infant.

The infant wasproperly cared for, while the four-year- old was located in a playpen in her house naked and covered in feces. He was suffering frombacterial skin infections. He had not been removed from the playpen in three months. The child was malnourished and had significantdevelopment and emotional delays. He was significantly underweight for his age and lacked muscle tone. He was unable to support hisown weight. He was largely non-verbal at the time he was discovered. She was married to a man who was characterized as verballyabusive towards her and controlling.

There was evidence of drug abuse by both parents. The marriage dissolved when charges werelaid. While on bail, the accused took drug counselling and counselling. She was not remorseful; rather she blamed her partner for nothelping her. She was diagnosed as suffering from a major depression for the four years after the birth of the four-year-old. The accusedstated she never bonded with her oldest child but when her younger child was born she bonded with that child. [55] The accused was charged with failing to provide the necessaries of life and criminal negligence causing bodily harm.

She wassentenced to one year in jail and 24 months probation. She received 6 months concurrent for the criminal negligence offence.

The judgerejected a CSO finding that in cases “involving prolonged, deliberate and persistent neglect or abuse” jail sentences were the norm. [para25] [56] The judge concluded that while the offender had made significant rehabilitative strides since being charged in relation to drugaddiction issues, and noted that she had suffered from depression and post-traumatic stress disorder, the abuse and neglect of the child,coupled with the confinement and lack of any human contact, affection or attention, called for a “clear condemnation and a stern warningto others” that the “abuse and neglect” of the child offends the “community’s standard of child care at its core”. [para. 31] The judgealso found that notwithstanding the accused’s mental health issues, she was capable of providing adequate child care. [57] In R. v.

S.J., 2015 ONCA 97 , [2015] OJ No. 669, the accused were the parents of a three-year-old boy who has beensent to live with his grandparents in India when he was 8 months old. When he returned home at the age of three-years-old, he was thin

and his skin was scaly and dry. The parents failed to follow up on medical appointments. The child was apprehended by the ministryand found to have old fractures that could ultimately not be attributed to the parents, but he was malnourished and had open sores on hisbuttocks and body. He may also have had scurvy.

He required hospitalization for his treatment and, over a period of weeks, his parentsfailed to do anything about that. [58] The Ontario Court of Appeal noted that the offences of failing to provide the necessaries required the Crown to establish thatthe accused’s conduct was a marked departure from the objective/community standard of care for children. [para 53/54] The sentencingjudge concluded that the offenders posed no ongoing risk to the community but found that the principles of deterrence and denunciationrequired a jail sentence be imposed.

The Ontario Court of Appeal upheld the trial judge’s decision of 6 months jail, finding that it waswithin the range and there was no error in declining to impose a CSO on the basis that it did not, in those circumstances, adequatelyaddress the principles of sentence. [59] In R. v. E.T., 2012 SKQB 169 , [2012] SJ No. 276, the court imposed a 3 years jail sentence in the context of what thecourt described as “despicable, deplorable and horrendous child abuse”. Both accused were first nations.

The child was taken into carein BC in 2005 and the child’s grandfather was granted sole custody and guardianship of the child. Fifteen months later, the child wasapprehended by protection workers in Saskatchewan. At the time the child was apprehended she was very thin, quiet, timid, withdrawnand scared. This was in contrast to her physical and emotional state which was the opposite at the time she was apprehended. While thechild suffered physical injuries those could not be attributed to the accused.

The accused were both sentenced on the basis of the otherfactors which included that the child was frequently struck on the head, often kept in a dark basement. She was described as a “prisonerof the accused”. She was malnourished. Both accused had criminal records that were not significantly relied upon as aggravating factorsin the sentencing. Neither accused took responsibility for their actions. At the time of sentencing she had made significantimprovements. Three year jail sentences were imposed and very little, if any, consideration of Gladue factors was undertaken. [60] R. v. W.K., [2012] OJ No. 867.

The offender W.K. was the biological father of the child, born in September, 2009. The childwas brought to the hospital in November, 2009 suffering from significant injuries including a partial skull fracture, a brain bleed,bruising of the buttocks and the perineum. There were older fractures detected. Doctors concluded that the child had suffered multipletraumas. The father admitted to dropping the child on several occasions and then picking up the child by his legs. He pled guilty tofailing to provide the necessaries of life. He received a jail sentence of 9 months, followed by 2 years probation.

The Crown sought ajail sentence of 18 months to 2 years less one day. The Judge concluded that there were numerous positive factors, including that theoffender had plead guilty, had overcome deafness to become a significant contributing member of the community and was not a dangerto the community. However, in imposing sentence the judge concluded that the while a CSO was available, given the multiple incidentsof trauma, the principles of deterrence and denunciation could not be properly addressed through the imposition of a CSO. The accusedwas sentenced to 9 months jail. [61] In R. v.

O., 2012 BCCA 129, the Crown appealed the trial judge’s decision to impose a 24 month CSO. The accused was theaunt of the child who was under her care. The child was 3 ½ -years-old and had extensive bruising and burns to her body. The burnswere caused when she was placed into a scalding hot bath by the accused after she urinated herself. She was severely neglected, hadcigarette burns on her body which were seriously infected, she was in a quadriplegic state from the abuse she suffered and would neverrecover.

The offender expressed remorse for her actions and the judge examined the presence of Gladue factors and concluded that thefactors of poverty, isolation and violence were significant factors in the offender’s life. The sentencing judge concluded that theoffender’s “unique circumstances are inextricably interwoven with the offences”. Ultimately, the sentencing judge concluded that theprinciples of sentence were adequately addressed by the imposition of a CSO.

The Crown appealed the sentence on the basis that itfailed to give sufficient weight to the principles of deterrence and denunciation, in particular, having regard to

section 718.2(a)(ii.1) and(iii) of the Code. The majority of the British Columbia Court of Appeal found the sentence to be unfit, but did not disrupt it on the basisthat, in light of the delay and the sentencing requirements already placed on the offender, it would not be in the interests of justice tochange the direction of the sentencing requirements at the stage when the appeal was heard. Justice Bennett upheld the sentence,particularly having regard to the fact the sentencing took place in First Nations Court where rehabilitation takes on a significant role inAboriginal cultures.

Bennett J.A. noted that the sentence contained “stringent conditions” and was appropriate for this offence and thisoffender. [62] In R. v. T.T., 2012 ONSC 4346, Dunnet J. imposed a CSO of 6 months for a mother who placed herself and her young childrenon a specialized raw vegan diet that ultimately resulted in her children being severely malnourished, having osteopenia and rickets. Shedid not obtain medical advice before embarking on this diet. Ms.

T. had a strained relationship with her mother, had a history ofmaladaptive eating behaviours, entered a guilty plea to the charge and her children would make a complete recovery. The judge notedthat this was a case where the accused “chose to engage in her own activities over her duty to care for her children” and she had notrealized the severity of her actions. [para. 33] Taking into account those factors, the judge sentenced her to a 6 month CSO and 3 yearsprobation. [63] The case of R. v. Mary Nanfo, involved a case of elder abuse where the accused was the daughter of her mother. Ms.

Nanfoprovided the care for her mother while they resided in a town home they shared. The condition of the upper floor of the home whereMaria Nanfo resided was described as “appalling”. Feces covered the walls and bedding, and the toilet was overflowing with it. Therewas garbage all over the place. Maria Nanfo was blind and in an advance sate of dementia. There was no stair rail present on the stairsto and from the top floor. Mary Nanfo also was absent from the home for significant periods of time, leaving her mother with nosupervision at all.

A psychologist found the accused to be suffering from depression at the time of the offence. Her psychologist notedthat she dealt with stress by avoidance. In the case of her mother she became overwhelmed by the state of decline and things got out ofcontrol for her. The sentencing judge described that Maria Nanfo died “blind, alone and no doubt confused and afraid in the horror forwhich the defendant was responsible-the most pathetic end for a human being that one could imagine”.

The judge determined that a jailsentence was appropriate and concluded that a CSO of 1 year would address the principles of sentence. [64] In R. v. Goetz, [2005] OJ No. 3291, Epstein J. imposed a suspended sentence where a 29-year-old babysitter of a two-year-oldchild acted inappropriately in the manner he took care of the child and the way in which he dealt with the child. Apparently, the two ofthem were wrestling and the two-year-old child sustained a spiral fracture to his arm. The child was in obvious pain and the accusedreacted by putting him to bed.

The accused did nothing to seek out treatment for the young child. It was accepted by all parties that the

accused did not deliberately injure the child, rather the injury was borne of ill-advised wrestling activities between a grown man and a very small child. There was only one incident before the court. The Accused was remorseful. A joint submission of a suspended sentence was proposed and imposed. [65] In R. v. M.M. , [1998] OJ No. 3032 , the court imposed a suspended sentence. In this case, the accused was a woman, characterized as under the control of a domineering partner, and possessing insufficient cognitive and intellectual skills to be a parent.

The child was not provided adequate nutrition and suffered cognitive impairment, although it was also agreed that there may well have been other causes of the cognitive impairment, including congenital factors. The child was five-years-old and could not talk yet. She was noted to suffer from significant emotional deprivation and physical neglect. It was unlikely she would ever function as a healthy child or adult. [66] In R. v. Maloney , [2012] NSJ No. 373 , the parents were convicted of failing to provide the necessaries to their month old son who was under their care.

Either the child was assaulted by them or they failed to adequately supervise the four-year-old sibling who may have caused the injury to the child. The court found that their conduct fell below the standard required for a parent, but no specific finding was made by the court that one or both of them specifically caused the injury to the child. A 1 year CSO was imposed. [67] In R. v. D.E ., [2005] OJ No. 2589 , the accused were the parents of the two children.

They pled guilty to failing to provide the necessaries to their two children who were aged one and two and living in terrible conditions, dominated by “filth and waste”. [para 3] The judge noted that the children were malnourished and diagnosed with a “severe failure to thrive”. The parents were both suffering from depression at the time of the offence. Defence counsel sought a CSO, and Crown counsel submitted that a jail sentence of 9 months was appropriate and would reflect the guilty pleas which was described as a significant mitigating factor.

The judge concluded that neither of the parents were cognitively incapable of caring for their children, nor did their underlying mental health issues excuse or explain the terrible conditions that the children lived in. The judge concluded that the period of time over which the abuse occurred, the circumstances the children lived in, and the harm caused by their neglect could not be adequately addressed in a CSO. [para. 20] [68] In R. v. J.A.R ., [2012] BCJ No. 2068 , J.A.R. was found guilty of failing to provide the necessaries to his four-year-old son.

The child was brought to the hospital by one of the foster mothers, and doctors noted bruising and abrasion to his face and body, swelling and limited movement to his left wrist and right elbow. X-rays showed that there were two fractures present. J.A.R. had a previous criminal record. J.A.R. was not convicted of causing those injuries to his child, rather his culpability arose from his failure to respond to them and get the child immediate medical care. A jail sentence of 6 months was imposed, followed by probation of 2 years.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [69] The sentence I impose should reflect the aggravating and mitigating circumstances present, in the context of the above noted principles of sentence. In the circumstances before me I find the following factors to be mitigating factors: • The accused has entered a guilty plea. This plea spares the state the expense of an expensive trial where there were a number of complicated issues present. I am told three weeks were set aside for the trial of this matter. I also find that A.N. is remorseful for her actions. • A.N. is a young first time offender before these courts.

She has been employed throughout the commission of this offence and since she has been on bail. • A.N. has had a difficult childhood and likely had an attachment disorder in her childhood that may have manifested itself as a form of mixed personality disorder, which may have contributed to her inability to properly care for her child. • She is at a very low risk to reoffend criminally again. [70] I find the following factors to be aggravating factors in this case: • For a period of time between April 7, 2014 through and including June 14, 2014, A.N. did not provide proper nourishment to her child B.N., which caused him to be in state of malnourishment, and upon his attendance to the hospital he was diagnosed as being in pre cardiac arrest.

B.N. would have died if he had not received immediate and intensive medical intervention. Medical doctors were of the opinion that B.N.’s malnourished state represented multiple weeks to months of insufficient feeding. • In April/May, 2014, MCFD visited the accused due to an anonymous complaint about the health of her child B.N. This call was a warning to her that there were complaints that her child’s health was at least a subject of concern for others.

She also misled MCFD when she advised them that her family members helped her to take care of her child. • B.N.’s malnourishment was very serious and as a consequence at the time he was admitted to the hospital B.N. was unable to sit up himself, stand or walk. His weight was consistent with an average four-month- old, not a child who was two. There was significant harm caused to B.N. as a result of A.N.’s neglect. • It took more than a month of medical intervention for B.N. before he was able to be discharged from the hospital.

He still receives ongoing care and medical intervention, although there is no clear prognosis about whether this incident will have long term impacts on his cognitive or developmental abilities. • The accused was in a position of trust relative to the victim and the victim was two-years-old at the time of the offence. [s 718.2(a) (ii.1) & (iii)] [71] The case authorities provided by counsel all reference that the obligation of a parent to protect and nurture their children is one of the greatest and most important responsibilities a human being will have in their lifetime.

Young children are extremely vulnerable and they look to their parents to shield, protect and nurture them. Access to nourishment is the single most important factor for all living beings. Without food, human life is simply not viable. For a period of a minimum of multiple weeks to months, B.N. was not provided

with sufficient nutrition by his mother, the accused. His deteriorating condition should have been apparent to her. I accept that theaccused may have been preoccupied by her restaurant and her increasing obligations associated with maintaining its viability. She mayeven have suffered from some degree of a personality disorder that impacted her ability to properly balance her need to provide for herchild and her demands at work. However, there is no evidence that A.N. was cognitively incapable of caring for her child. It shouldhave been apparent to her that her son’s medical condition was dire.

The period of time over which she neglected to provide propernutrition to her son was not brief. While her mental health may have caused her to make poor choices it does not account for the periodof time over which she failed to provide suitable nutrition to her child. A.N. was also uniquely positioned to make those observationsabout the condition of her child, given she was the only person responsible for taking care of him and changing his diaper and clothing. She would have seen his deteriorating body condition, sores on his bottom and evidence of his malnourishment.

He was two-years-oldand not able to sit up, walk or stand at the time he came to the hospital. This is not normal development for a two-year-old child. A.N.said she needed to set an alarm to feed her son, yet she was surrounded by food and was cooking it all day long in her restaurant whileher son was in her presence in the kitchen or in the pantry. She provided no other childcare for B.N. outside of the restaurant. Herfamily members did not provide any child care and they reported that they did not see B.N. in the kitchen, but heard noises in the pantry.

This was not an environment where a two-year-old child would thrive. [72] I accept that A.N. did not deliberately set out to cause her son harm, however, the standard of care she provided to B.N. wasmarkedly below the standard of care expected by the community. The case law I have summarized above characterizes prolongedexposure to negligent behaviour as a serious and aggravating factor. [73] I have considered all of the aggravating and mitigating factors, including the presence of some mental health issues.

While themental health issues provide some context for understanding A.N.’s unique circumstances, I must still sentence her for her behaviourwhere she deprived her child over a significant period of time of the proper nutrition and care, causing her child’s health to fall to a statewhere he was semi-conscious and in a pre-cardiac arrest situation when she brought him to the hospital. I do not find that her mentalhealth issues rose to the level that they deprived A.N. of knowing and understanding that she had a duty to feed and care for her child.

When she characterized that she “missed” how malnourished B.N. was getting due to the mounting stresses associated with running therestaurant, I find that she chose to put her own interests ahead of her young child’s interests. Those interests were no doubt pressing innature, and she was no doubt making very poor choices at that time, likely operating with minimal sleep, but that does not overtake herobligation to put her child’s needs ahead of her own. A.N. did not even provide the very basic necessities of food to her child when sheand her child were surrounded by it. [74] A CSO is available in this case.

There is no minimum term of imprisonment, the safety of the community would not beendangered by the accused serving her sentence in the community and a sentence of less than 2 years is appropriate. [75] I also find that in R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61 and many other cases subsequent to Proulx that theprinciples of deterrence and denunciation can, in some cases, be addressed by the imposition of punitive conditions including housearrest and community work service hours. Mr.

Justice Lamer also recognized that in certain situations, to properly address theprinciples of deterrence and denunciation, a custodial sentence may be required. [76] In my view, this is a case where B.N. was kept in the back of restaurant in the cooking area and sometimes in the storage area. He was not properly cared for nor was he properly fed. His malnourishment occurred over a period of time that, according to thedoctors, was multiple weeks or months of insufficient feeding.

I conclude the period of time over which B.N. was exposed to insufficientnutrition was lengthy and prolonged, and placed him in a state where he would have died without immediate medical intervention. While ultimately the accused brought B.N. to the hospital, and that act saved B.N.’s life, it cannot be overlooked that A.N.’s prolongednegligence is what placed him in that state. B.N. continues to require some enhanced medical care as a result of the malnourishment.

Health providers cannot say if there will be long term consequences to his health or development as a result of the malnourishment. [77] In my view, a jail sentence is necessary to address the paramount principles of sentence in this matter which are deterrence anddenunciation.

A CSO in this case would not adequately address those principles, given the degree of harm caused to B.N. and the periodof time over which A.N. failed to provide B.N. with appropriate nutrition and care. [78] Regarding the quantum of the sentence, ordinarily, given the presence of aggravating factors in this case and the severity of theneglect, a sentence in the low end of the Crown’s range of 18 to 24 months would be appropriate.

However, in my view that sentencewould not properly account for the mitigating factors present here which include the presence of a guilty plea, A.N.’s young age andotherwise good character, her genuine expression of remorse, the fact that the accused does not present a risk to reoffend in the future,and her difficult upbringing where she experienced a degree of emotional neglect. When I consider those mitigating factors, it is myview that a sentence of 1 year jail is appropriate. It will be followed by a 2 year period of probation. The conditions of probation will beas follows: 1.

Keep the Peace and be of good behaviour; 2. You will report to probation within 72 hours of the conclusion of your jail sentence and thereafter as and when directed; 3. Reside where directed by your probation officer, and if you change that residence you will provide written notification in advance ofthat change to your probation officer; 4. You must attend, participate and successfully complete any programming of counselling at the direction of and to the satisfaction ofyour probation officer; 5.

You will have no contact directly or indirectly with B.N., except as provided by the Ministry of Children and Family Development. [79] I also order that the accused provide a sample of her DNA. There is a Victim Fine surcharge in the amount of $200.00 payablewithin 2 months of your release from custody.

The Honourable Associate Chief Judge M. Gillespie Provincial Court of British Columbia