R. v. J.A.R. Date:, 2012 BCPC 347

Citation: R. v. J.A.R. Date: 20120820 2012 BCPC 0347 File No: 214583-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.R. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: D. Nearing Counsel for the Defendant: P. Angly Place of Hearing: Vancouver , B.C. Date of Judgment: August 20, 2012 [ 1 ] THE COURT: These are my reasons for sentence in the matter of J.A.R., who was convicted on June 5, 2012, of the offence of

failure to provide the necessaries of life, contrary to s. 215 of the Criminal Code . J.A.R. did not seek medical attention for his four-year-old son, J.H.R., in circumstances where he knew or ought to have known of his son's injuries, and where it was foreseeable that there was a risk of permanent harm to his son's health. CIRCUMSTANCES OF OFFENCE [ 2 ] I will set out the circumstances of the offence by paraphrasing from paragraphs 89, 90, 92, 93, 94, 96, and 97, of my reasons for judgment dated June 5, 2012: see [2012] B.C.J.

No. 1227 . [ 3 ] J.H.R. was brought to hospital by one of his foster mothers when she discovered he had several injuries. At the hospital, J.H.R. was seen initially by an emergency room physician, and later by a physician who specialized in children's pediatrics. They described a number of injuries, which are fully set out at paragraph 28 of my reasons for judgment.

Those injuries included bruises and abrasions to the face and body, significant swelling and limitation of movement of the left wrist, significant swelling and limitation of movement of the right elbow, pinpoint hemorrhages on the back of the right shoulder, and pinpoint hemorrhages and bruising on the upper portion of the right ear. X-rays revealed that J.H.R. had a fracture of the ulna bone of the right arm and a fracture of the left wrist. [ 4 ] The accused testified at trial.

He said J.H.R. was fine after he had fallen out of bed, an incident which he placed several days before the visit with the foster mother, and after J.H.R. fell down the stairs at home, an incident which he placed as the day before the visit with the foster mother. [ 5 ] The accused maintained J.H.R. told him he felt fine. It was also his opinion that J.H.R. was fine the night before the foster mother came to pick him up and on the morning of the day she picked J.H.R. up. The accused said he had dressed J.H.R. that morning and he was fine. I did not accept the accused's evidence that J.H.R. was fine.

In fact, I found quite the contrary. I found J.H.R. had sustained a number of injuries, some more serious than others, and, in particular, he had sustained serious visible injuries to the left wrist and to his right arm. [ 6 ] The accused asserted that he had not noticed any of these injuries, except the hurt hand which he mentioned to the foster mother, and that he had not paid particular attention to J.H.R.'s body. I found that assertion to be simply preposterous. I found J.H.R. and his brother were in the accused's sole care.

I found that J.H.R. could not have managed many of the tasks of daily living by himself without parental supervision. I concluded the swelling of both arms was not something that a prudent parent changing a child could have missed. [ 7 ] The medical evidence about the necessity of seeking medical advice was unequivocal. Dr. Copeland said, even without X-rays, given the condition of the right elbow with swelling and lack of movement, there was no question that medical attention was necessary. Dr. Copeland said broken bones hurt when they move. [ 8 ] Dr.

Jain said the swelling in the left wrist and over the right elbow was plain to see. Even a non-medical person would have recognized that the area was swollen. She said it was hard to imagine how J.H.R. could have been able to dress and feed himself or manage in the bathroom. There was a definite limitation of movement, which would have been noticeable to a layperson. [ 9 ] I concluded the accused was aware of the injuries to J.H.R.'s arms. They were visible and obvious.

Further, even if the accused did not know the extent of the injuries, based on the swelling and limitation of movement in J.H.R.'s arms, it was obvious that he needed prompt medical attention. [ 10 ] I also noted that J.H.R. has a number of developmental issues and suffers from FASD. The accused himself, in what I found to be a very telling admission, said J.H.R. could not explain very well where it hurt, if it hurt, or if it did not hurt.

In light of J.H.R.'s personal circumstances, it was incumbent on the accused to be vigilant and not simply accept, as he claimed to do, J.H.R.'s statement that he was fine. [ 11 ] The unchallenged evidence of the doctors was that the injuries to both of J.H.R.'s arms would have been painful. The accused, by his own evidence, claimed to be present very shortly after the alleged fall from the toddler bed and the alleged fall down the stairs. Given the steep stairwell and presumably a fall from the upstairs landing, the accused should have sought a precautionary medical examination.

Instead, the accused waited until the next day before he did anything, and even then he simply mentioned a fall from the bed and a hurt hand to the foster mother. It is telling that he would mention a fall from a toddler bed several days earlier, but omitted to mention a significant tumble down a steep stairwell. [ 12 ] Those are the circumstances, in

summary, of the offence for which J.A.R. was convicted. I acknowledge he was only convicted of the offence of failing to provide the necessaries of life. That is the offence on which I must sentence him. CIRCUMSTANCES OF J.A.R. [ 13 ] A pre-sentence report was prepared and I have reviewed it in preparation for this sentencing hearing. J.A.R. is 48 years old. He was born in El Salvador. He reported that his biological parents are unknown to him, as they left him shortly after birth. It appears he was alone without a family.

He claimed he was raised in the community. [ 14 ] J.A.R. reported that from the age of 16 to 25, he was involved with a political organization in El Salvador that opposed the ruling government. He reported he was subjected to torture. He left El Salvador in 1985 with the assistance of the Red Cross. He eventually arrived in Canada in March 1989, and lived in Toronto for a period of time. [ 15 ] In approximately 1992, he said he followed his common-law spouse and daughter, who had left him and moved to Vancouver.

He said that when he arrived in Vancouver, he was dropped off at the corner of Hastings and Main Street. It was then that he became involved in the drug subculture and lived on the streets for a few years. [ 16 ] It appears J.A.R. may have lived on the streets on and off until 1998, when he met a woman who became his common-law

wife. For a period of time, he and his common-law wife lived in her reserve in the Yukon. He admitted to the probation officer he and that common-law wife were alcoholics. He described their relationship as dysfunctional. [ 17 ] In 2002, he met his current common-law wife, L.H. She is the mother of both J.H.R. and a second, younger son. J.A.R. has been involved with the Ministry of Children and Families from a time shortly after J.H.R. was born. J.H.R. was placed in foster care when he was six weeks old. He continued to live with his foster parents until he was three.

However, during that time, the accused and L.H. had access visits with J.H.R. As I understand it, both the Ministry of Children and Families and the Vancouver Aboriginal Child and Family Services Society, as well as other groups, provided assistance to J.A.R. and L.H. [ 18 ] J.A.R. has been living on his own for a period of time. He has had the custody and care of both children. L.H. maintains her own residence. She and J.A.R. maintain regular contact through supervised visits organized through various agencies. [ 19 ] J.A.R. has a criminal record.

His first conviction was in January 1994, for possession of a narcotic for the purpose of trafficking. He was given an intermittent sentence of 90 days in jail and probation for two years. In January 2002, he was convicted of uttering threats to cause death or bodily harm, assault, and failure to appear. The threatening and assault charges related to the same person. He was given a suspended sentence on all counts and placed on probation for 18 months. PRINCIPLES OF SENTENCING [ 20 ] I now turn to the principles of sentencing.

The Criminal Code sets out the following objectives in s. 718 , namely; denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment and reparation for harm done. [ 21 ] It is clear from the provisions of the Criminal Code that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. [ 22 ] In s. 718.2, the Code provides that the abuse of a position of trust or authority in relation to a victim is an aggravating factor.

Further, evidence that the offender, in committing the offence, abused the offender's spouse, common-law partner, or child is deemed an aggravating circumstance in the imposition of sentence. As well, evidence that an offender, in committing the offence, abused a person under the age of 18 years is also an aggravating factor. [ 23 ] My duty in sentencing is to arrive at a fit sentence. Sentencing is an individualized process.

In imposing a sentence on J.A.R., I must take into account not only the circumstances of the offence, but his own personal circumstances. [ 24 ] In this case, the Crown urges me to impose a term of imprisonment of 10 to 12 months to be served in a custodial facility, plus two years' probation.

The defence submits that a term of imprisonment in this case should fall in the range from six months to one year, but urges me to find that a conditional sentence order is appropriate in the circumstances. [ 25 ] I have reviewed a number of cases dealing with circumstances where a parent failed to provide medical care for a child. I review them below but in no particular order. [ 26 ] In R. v. Jonah , [2007] N.B.J. No. 194 , a father and mother were sentenced for failure to provide necessities of life to their five-and-a-half-year-old daughter. A social worker found the child at home in a weakened state.

The child was bruised, messy, and extremely hungry and thirsty. The child also had a freshly broken wrist and upper arm. It was not proven that the two accuseds had inflicted the injuries on the child. The father was a first-time offender and worked as a truck driver. He did not accept responsibility for the offence. The mother was also a first-time offender and denied guilt. They were both sentenced to eight months imprisonment. [ 27 ] The court noted that the breach of trust by a parent in failing to carry out a fundamental legal duty owed to a young child is especially serious.

The court found that the principles of denunciation and general deterrence were predominant as the most important sentencing factors to be considered. Additionally, the court noted that an important factor was the principle of general deterrence in cases of this type, where secrecy almost always is a prominent factor.

The sentence had to reflect the moral blameworthiness of the parents who were in the child's constant company during the time the child sustained the injuries. [ 28 ] The circumstances of that case did not justify a conditional sentence, because a conditional sentence would not acknowledge the harm done to the victim by their collective inaction as parents. [ 29 ] In R. v. J.R.B. , [2003] N.J. No. 9 , a mother was sentenced to six months' imprisonment, followed by two years' probation, for failing to provide the necessaries of life to her infant daughter.

The mother took her daughter to hospital, where it was discovered that the child suffered significant and unusual injuries which were described as assaultive in nature. The trial judge found that J.R.B. had not obtained prompt medical attention for her daughter after becoming aware of the injuries.

Someone had purposely injured the child, but it was not determined to be the mother. [ 30 ] The trial judge took into account that J.R.B.'s actions, though constituting an omission to act, were committed purposely and with the knowledge that her child was in pain and in need of medical attention. [ 31 ] The trial judge also found that her failure to act was uncaring and a morally reprehensible omission, and constituted a grievous breach of her position of trust. Further, a strong denunciatory element needed to be included in the sentence. A period of imprisonment was warranted.

A conditional sentence was considered but rejected. The court found that although J.R.B. did not constitute a danger to the public, a conditional sentence would have been inconsistent with the fundamental principles of sentencing, and particularly the principles of general deterrence and denunciation. [ 32 ] In R. v. S.R. , [1993] O.J. No. 1108 , the court imposed an eight-month sentence of imprisonment on a mother for failure to provide medical attention to her five-month-old son, thereby endangering his life. The mother failed to report that her son had been physically abused by her lover.

As well, she failed to take her infant son to the hospital for medical treatment for fear it would lead to an investigation of child abuse.

[33] In R. v. Barnes, 2005 NLTD 121, nine months' imprisonment and 18 months' probation was imposed on a mother who waitedmore than two days to obtain medical attention for the severe head trauma sustained by her two-month-old daughter, with theconsequence that the daughter sustained permanent brain damage. [34] In R. v. Nickel, 2012 ABCA 158 , [2012] A.J. No. 522, a father pled guilty to aggravated assault and failing to providethe necessaries of life. The victim was his infant daughter. The child was left alone with the father, who decided to see the child'sreaction to having her feet placed in hot water.

He placed her feet in water recently boiled to sterilize baby bottles, without testing itstemperature. The child's feet immediately turned red, so the father placed her feet in slippers to cover the redness. The mother returnedhome and noticed that the child was in distress. The father attempted to explain the injuries as friction burns from a blanket. Hedissuaded the mother from seeking medical attention for four days. [35] The trial judge imposed a global sentence of 90 days' imprisonment: 75 days for the aggravated assault, plus 15 daysconsecutive for failing to provide the necessaries of life.

On appeal, the court concluded that the sentencing judge erred in assessing theseriousness of the offence and the offender's moral blameworthiness, and by failing to give proper consideration to the primaryobjectives of denunciation and deterrence. [36] The sentence imposed by the trial judge did not achieve the fundamental and underlying principle of proportionality. The childhad suffered third degree burns, exacerbated by a lack of immediate medical attention.

The seriousness of the offence could not bediminished by the possibility that the child might recover without further psychological harm. [37] The assessment of the offender did not support the judge's conclusion that he was naïve. Even if such an inference wasreasonable, it did not diminish the full extent of the offender's moral culpability. The appeal court further found that the offender'sconduct, viewed objectively, was likely to expose his child to serious lingering harm. It was intentional and without justification. Theoffender was indifferent to the result.

Mitigating factors were the offender's young age, his guilty plea, and lack of a prior record. A fitsentence was three and one-half years' imprisonment, with six months consecutive for failure to provide the necessaries of life. [38] In R. v. J.M.B., 2005 NLTD 121, a mother was convicted of failing to provide the necessaries of life to her two-month-olddaughter. She waited over two days before seeking medical attention for a severe head trauma after the child had been left alone with herhusband. The trauma resulted in permanent brain damage to the child.

She was sentenced to nine months' imprisonment, followed by 18months' probation. [39] The judge rejected a conditional sentence order, concluding that serving the sentence in the community would not be consistentwith the fundamental purposes and principles of sentencing. Specifically, it would not meet the objectives of denunciation and generaldeterrence.

The judge acknowledged that a community-based conditional sentence can meet those objectives but, in light of thecircumstances of the particular case, the judge was satisfied a period of incarceration was required to send the appropriate message ofdenunciation and deterrence. [40] In R. v. Berry, [2003] N.J. No. 9, the accused, a 19-year-old single mother of two children delayed two days in seeking medicalattention for her infant daughter's broken arm. It was established that the broken arm was due to an assault, but it was not proven that theaccused caused it.

The mother was sentenced to six months' imprisonment. [41] The sentencing judge found that her omission to act was purposeful. She knew the child was in pain and needed medicalattention. The failure to act was a morally reprehensible omission, and involved a conscious choice to allow her daughter to suffer. [42] In R. v. Foote, 2005 NLTD, a case which was also referred to as R. v. J.C.F., the accused failed to seek prompt medicalassistance for non-accidental head injuries suffered by his eight-week-old daughter. This resulted in brain damage, cerebral palsy, and asmaller head size.

The accused was sentenced to 11 and a half months' imprisonment. The sentencing judge held that a conditionalsentence would not sufficiently satisfy the objectives of denunciation and general deterrence, nor properly address the accused's moralblameworthiness. [43] In R. v. Maloney, [2012] N.S.J. No. 373, Maloney and Chapman were convicted of failing to provide the necessaries of life totheir month-old son, S.M., who sustained serious, unexplained head injuries.

Two possibilities were advanced to explain the injuries: onewas that the child was assaulted by Maloney and/or Chapman; the other was that his four-year-old stepbrother, A.M., caused the injurywhile neither parent was present. There was no evidence upon which to determine what had occurred. It was concluded that in eithercircumstance, that is, direct infliction of the injuries or failure to properly supervise A.M., the offence was made out. [44] Maloney had no history of violence. Chapman had a prior criminal record, including assault charges, and was reported to haveanger management issues.

The Crown sought 25 months' imprisonment for Maloney and 48 months' imprisonment for Chapman. Maloney sought a conditional sentence in the range of nine to 18 months. [45] Maloney and Chapman were both sentenced to a one-year sentence of imprisonment to be served in the community, and twoyears' probation. The court noted it was established beyond a reasonable doubt that Maloney and Chapman's conduct fell below thestandard required, but there was no specific finding that S.M.'s injuries were inflicted by either parent.

As such, they could only besentenced on the basis of the lowest degree of culpability that their convictions encompassed. A prison sentence was found not to beappropriate in the circumstances, and a conditional sentence order was imposed. [46] In R. v. Guimond, [2010] M.J. No. 196, the accused, a blood relative with whom the child was placed, pled guilty to one countof failing to provide the necessaries of life. After an outing with the child and two other children, the accused urgently needed to go tothe bathroom.

She rushed ahead, carrying the child, entered the house, put down the groceries, and placed the child on a high-backchair, up against a piece of plywood that separated the chair from a steep flight of stairs. While in the bathroom, the accused heard anoise. She ran out to the kitchen and found the child at the bottom of the stairs. The child was unconscious but breathing. He later diedof his injuries. [47] The Crown sought a prison sentence of two years less a day, while the defence argued for a conditional sentence of that length.

The accused was given an 18-month conditional sentence and three years' probation. Her time in pre-sentence custody of 90 days wascredited at double time and was taken into consideration. [48] The court found that the facts were indicative of poor judgment in a moment of haste. The accused had a somewhat relatedcriminal record, plus a 2009 conviction for assault causing bodily harm against the child and his sister. The accused had shownremorse. She had immediately called 9-1-1 and attempted to resuscitate the child.

The court found that those were not the type ofcircumstances that required a strong denunciatory and deterrent message. A conditional sentence was consistent with the fundamentalpurposes and principles of sentencing in that case. [49] There is also the case of R. v. C.G.O., 2012 BCCA 129.

That is a recent case where our Court of Appeal considered whether aconditional sentence of two years less a day was appropriate, following the accused's guilty pleas to aggravated assault and failing toprovide the necessaries of life to her three-year-old niece. [50] In that case, the accused shook her niece out of disgust for her lack of toilet training. When the child subsequently urinated inher pants, she placed the child in a hot bath. This resulted in burns all over the child's body.

Later the child became unconscious, andthe accused again shook her to wake her up. [51] Ultimately the accused took the child to hospital, where it was discovered the child had limb fractures, as well as serious braininjuries. The child was rendered paraplegic, unable to speak or eat, and in need of constant care for the rest of her life. The accused'sother children were taken from her. Her family, including the child's mother, forgave the accused for her crime and wanted her to live inthe community again.

Her uncle, an elder, who had worked in the criminal justice system, provided a statement indicating his belief thatjail time would prevent the accused's rehabilitation. [52] The issue before the Court of Appeal was fitness of sentence. As I read the decision, the majority of the court found that theoriginal sentence imposed in First Nations Court was unfit. However, at the end of the day the majority agreed that in the particularcircumstances of that case little would be served by imposing a different sentence.

The majority took into account the circumstances ofthe case and the steps taken to comply with the original sentence. It also took particular note that the accused was an aboriginaloffender. This had a bearing on the disposition of the sentence appeal. [53] The last case I will refer to is R. v. W.K., [2012] O.J. No. 867. This is a sentencing decision on a charge against W.K. for failureto provide the necessaries of life to his infant daughter. W.K. and his wife were deaf. They were the biological parents of the child, whowas born in September 2009.

In November 2009, the child was brought to hospital by the parents due to fussiness and seizures. A CTscan showed massive bleeding around the brain and a possible skull fracture. Bruising of the scrotum was detected. A physicalassessment confirmed a partial skull fracture, brain bleeding, and also detected fractures to the child's ribs, healing fractures to the child'slegs, and bruising of the perineum and buttocks.

It was concluded that the child's injuries were representative of multiple inflictedtraumatic injuries that were not attributable to birth or a medical disorder. [54] The accused admitted to having dropped the child on more than one occasion, grabbing the child by the legs after havingdropped him, and sleeping with the child and rolling over him. [55] The accused pled guilty to failing to provide the necessaries of life by his failure to seek prompt medical attention for the child. The offender, age 38, had no prior convictions.

The Crown sought a custodial sentence of between 18 months and two years less a day,followed by two years' probation. Defence counsel sought a one-year conditional sentence. [56] The court sentenced W.K. to nine months' imprisonment, plus three years' probation. The mitigating factors considered werethe guilty plea, lack of prior convictions, the accused's disability, positive character evidence, and the uncertain nature of the child'sinitial injuries.

Aggravating factors included the child's young age, the multiple accidental traumas suffered, the duration, extent, andnature of the child's injuries, the offender's infliction of some of the injuries, and the offender's failure to meet primary parentalresponsibilities of ensuring the child obtained required medical attention. Although the offender did not represent a risk to the public or arisk of re-offending, his conduct required a denunciatory sentence involving incarceration.

FIT SENTENCE FOR J.A.R. [57] In the case before me the real issue is whether the sentence I impose should be served in a prison or whether it should be aconditional sentence served in the community. In my view, the case law I have summarized makes it clear that a jail sentence isappropriate in the circumstances of this case. The length of the jail sentence and how it is to be served are the issues I must decide. [58] Both counsel are in agreement as to the range of sentence that should be considered in this case. The upper end is 12 monthsbut they do not agree about the lower end of the range.

Defence counsel says it should be six months, Crown counsel says it should be10 months. Those differences notwithstanding, it is clear that a sentence in the range of six to 12 months is within the range of sentencesthat have been imposed in other cases in roughly similar circumstances. None of the circumstances of the other cases are exactly thesame as those in the case before me.

I realize that the range of sentence is a tool to be used only as a guide for arriving at a fit sentencein this case. [59] There is no minimum term of imprisonment for this offence and, given the range of sentences imposed in other cases, it is clearthat a jail sentence of less than two years is an appropriate sentence. Accordingly, it is appropriate to consider whether J.A.R. should bepermitted to serve his sentence in the community pursuant to a conditional sentence order under s. 742(1) of the Criminal Code.

In R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, the Supreme Court of Canada made it clear that significant denunciation and generaldeterrence can be met by attaching appropriate conditions to a conditional sentence order. [60] Having determined that the range of sentence in this case should be less than two years, I must now consider whether allowingJ.A.R. to serve his sentence in the community would endanger the community.

I am satisfied, given the circumstances of this case andwhat I have been told about J.A.R., that allowing him to serve the sentence in the community, with appropriate conditions attached,would not endanger the community.

[ 61 ] The issue I must next address is whether a conditional sentence will satisfy the objectives of denunciation, general and specific deterrence, and properly address J.A.R.'s moral blameworthiness in this matter. I took time to reflect on this aspect of the sentence when we took a break earlier this morning. Upon reflection, I have concluded that a conditional sentence order would not be consistent with the fundamental purpose and principles of sentencing in the circumstances of this case. [ 62 ] In particular, it is my conclusion that paramount considerations in this case are denunciation and deterrence.

In the circumstances, a term of imprisonment to be served in a custodial facility best serves those purposes. I have not ignored the other objectives of sentencing, in particular rehabilitation, but in this case the other objectives of sentencing, including rehabilitation, are not as pressing as denunciation and deterrence. [ 63 ] I have considered the following in reaching my conclusion that a conditional sentence is not appropriate in the circumstances:

(1) J.A.R. committed a serious breach of trust as a parent in failing to ensure that his son received prompt medical care.

(2) J.A.R. has a high degree of moral blameworthiness. He had his son in his sole care during the time his son sustained the injuries which are detailed in my reasons for judgment.

(3) His son is developmentally and cognitively challenged. The effects of fetal alcohol syndrome were explained in detail during the course of the trial. The evidence made it clear that J.H.R. needs careful attention and nurturing. The evidence also made it clear that J.H.R. may not be able to express himself well or correctly, for that matter. The accused himself acknowledged this when he said that J.H.R. could not explain very well where it hurt, if it did hurt, or if it did not hurt. In those circumstances, it was incumbent on J.A.R. to take particular care of J.H.R., but he did not do so.

(4) As noted in Jonah , an important factor in cases of this kind is deterrence, because secrecy is always a factor. In this case, of course, it was heightened by J.H.R.'s inability to express himself properly.

(5) It is clear on the evidence that J.A.R.'s failure to seek medical attention was done consciously and purposely. I found that J.H.R.'s physical condition would have been clear to a layperson. This was in accordance with the evidence I heard and with common sense. It was clear that J.H.R. was injured and that he was in pain. The accused failed to take steps that were needed to help his son; namely, to seek immediate medical attention.

(6) Not only did he fail to take steps to seek immediate medical attention, he also, to use the vernacular, did not "come clean" with the foster mother.

In fact, he minimized J.H.R.'s condition by failing to mention the fall down the stairs, which had occurred very recently, but mentioning instead a fall from the toddler bed, which had occurred several days earlier. [ 64 ] In all of the circumstances, given the special relationship that the accused had with J.H.R. as a parent, J.H.R.'s total dependence on him as a child of four years, and J.H.R.'s disabilities, this is a case that requires society's denunciation. [ 65 ] In dealing with deterrence, I am not simply focusing on general deterrence; I am also focusing on specific deterrence.

J.A.R. is no stranger to the need to take care of his child and to his responsibilities in that regard. There has been Ministry involvement with him and his family for a number of years. He has received assistance from various agencies. Both children have been taken away from him in the past. From all of this I infer he clearly understood his responsibility as a parent and the level of care needed to look after both children, but in particular J.H.R. [ 66 ] J.A.R. claimed to be a loving and caring parent, but his lack of action belied his words.

The appropriate sentence in this case, is a term of six months in prison. In arriving at this length of sentence, I considered other cases. I find that, while J.A.R.'s conduct was unacceptable, it was not as egregious as the conduct of the offenders sentenced in the other cases. As well, fortunately for J.H.R., the consequences of J.A.R.'s offending behaviour were not as serious as they otherwise might have been. [ 67 ] I am also placing J.A.R. on probation for a period of two years following his release from custody. The conditions will be as follows: (

a) You must keep the peace and be of good behaviour. (

b) You must attend court when required to do so by the court. (

c) You must report in person to a probation officer within 72 hours of your release from custody. You must report at 375 East Cordova Street in the City of Vancouver, Province of British Columbia, and thereafter as directed by the probation officer. (

d) You must reside as directed by your probation officer, and not change that residence without the prior written approval of your probation officer. (

e) You must remain within the jurisdiction of this court and not leave the jurisdiction without the prior written permission of the probation officer. (

f) You must not possess or consume any alcohol. (

g) You are not to possess or consume any non-prescription drugs as set out in the Controlled Drugs and Substances Act , unless you have a prescription provided by a licensed physician. (

h) You must not possess any weapons as defined in the Criminal Code of Canada . (

i) You must attend, participate in, and complete any counselling as directed by your probation officer, including but not limited to anger management, violence prevention, and substance abuse.

[DISCUSSION BETWEEN COURT AND PARTIES OMITTED] (

j) You must have no contact or communication, directly or indirectly, with J.H.R. unless supervised by the Ministry of Children and Family Development, or an appropriate agency designated by the Ministry of Family and Children Development. [ 68 ] Although this is a secondary designated offence, under the circumstances, it is appropriate to make a DNA order which order has not been objected to. The victim fine surcharge is waived. [DISCUSSION BETWEEN COURT AND PARTIES OMITTED] (REASONS CONCLUDED)