R. v. A.M.C., 2018 BCPC 291

Citation: R. v. A.M.C. 2018 BCPC 291 Date: 20181001 File No: 222306-1; 222085-4-KA Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. A.M.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. LA PRAIRIE PUBLICATION BAN PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE Counsel for the Crown: C. Stewart Counsel for the Defendant: D. Baker Place of Hearing: Surrey , B.C. Date of Hearing: August 27, 2018 Date of Judgment: October 1, 2018

[ 1 ] A.M.C. (“Ms. C.”) has entered guilty pleas to two offences. [ 2 ] Information 222306-1 charges an offence of aggravated assault contrary to s. 268(2) of the Criminal Code , between December 22, 2016 and January 5, 2017 in Surrey, British Columbia. The victim of the assault was her infant daughter C.J. (“C.”), who was born on [omitted for publication]. [ 3 ] Information 222085-4-KA charges an offence of breach of recognizance contrary to s. 145(3) of the Criminal Code on May 20, 2017, by having contact with S.J. (“Mr. J.”), the father of the child. [ 4 ] The facts of both offences are set out in the written Crown

summary filed with the Court. Information 222306-1 1. [A.M.C.] gave birth to [C.J.] on [omitted for publication]. The biological father is [S.J.]. 2. On October 6, 2016, [Ms. C.] took [C.] to Surrey Memorial Hospital reporting that while she had been co-sleeping with [C.] she awoke to [C.] jerking her body for approximately 30 seconds. At the time of admittance to the hospital, [C.] was no longer showing any signs of distress. The attending doctor concluded that the episode was likely a brief Tonic Clonic seizure. No one other than [Ms.

C.] had witnessed the incident. [C.] was released from the hospital on October 7 th , 2016. 3. On October 15, 2016, [Ms. C.] took [C.] to B.C. Children’s Hospital reporting that the baby had had a seizure. No one other than [Ms. C.] had witnessed the incident. [C.] was prescribed Clobazan an anti-seizure medication. 4. On October 20, 2016, [Ms. C.] took [C.] to Surrey Memorial Hospital reporting that [C.] had had two more seizures. No one other than [Ms. C.] had witnessed the incidents. The baby was admitted for one night and her medication was increased. 5. On the morning of December 22, 2016, [Ms.

C.] called 911 to report that [C.] was not breathing. The call taker provided [Ms. C.] with instructions to perform mouth to mouth resuscitation. [C.] was taken to Surrey Memorial Hospital by ambulance and was released shortly after. No one other than [Ms. C.] had witnessed the incident. 6. On the evening of December 22, 2016, [Mr. J.] called 911 to report that [C.] had stopped breathing during breastfeeding. [Mr. J.] had observed [C.] not breathing and had called 911 but he was not present when [C.] stopped breathing as she had been alone with [Ms. C.] in bed.

On the 911 operator’s recommendation, they drove [C.] to Surrey Memorial Hospital rather than wait for an ambulance. 7. [C.] was admitted to Surrey Memorial Hospital the evening of December 22, 2016, as a result of [Ms. C.’s] description of [C.’s] seizures/cessation of breathing. She remained there until December 29 th , 2016, when she was transferred to B.C. Children’s Hospital. 8. On December 23, 2016, [Ms. C.] was alone in the hospital room with [C.] and she called out for help. Hospital staff attended and observed [C.] on the bed with her back arched and her limbs rigid.

Her eyes were fixed and she was not breathing. After approximately 45 seconds the baby started to spontaneously breathe. 9. On December 24, 2016, [Ms. C.] was alone in the hospital room with [C.] and she called out for help. Hospital staff attended and they observed [Ms. C.] holding the baby who was limp and not breathing. The nurses applied stimulation and the baby slowly responded after approximately 20 seconds. 10. On December 25, 2016, [Ms. C.] was alone in the hospital room with [C.] She ran out of the room calling for help. The hospital staff observed the baby lying in her crib looking pale and clammy.

The nurse stimulated her and got a response with 10-15 seconds. It is estimated that the baby was not breathing for approximately 30-60 seconds. 11. On December 26, 2016, [Ms. C.] was alone in the hospital room with [C]. and she called out for help. When hospital staff attended they observed the baby to be limp and dusky grey and not breathing. The baby began breathing after approximately 30 seconds and was provided with oxygen for 30 minutes after the episode. 12. On December 27, 2016, [Ms. C.] was alone in the hospital room with [C.] and she called out for help because the baby was not breathing.

The baby responded to stimulation and started breathing. She appeared to be dazed for approximately 5-6 minutes afterwards. 13. On December 29, 2016, [Ms. C.] was alone in the hospital room with [C.] and she called out for help. When hospital staff arrived, the baby was a dusky colour and not breathing. She appeared to be dazed for approximately 5-6 minutes afterwards. 14. The medical staff at Surrey Memorial Hospital were concerned and confused by [C.’s] symptoms and they deemed the seizures she had been experiencing as atypical. She was transferred to B.C.

Children’s Hospital to have neurologists determine whether she had a primary heart issue or a primary seizure issue. 15. On December 30, 2016, [Ms. C.] was alone in the hospital room at B.C. Children’s Hospital with [C.] and she had another episode of not breathing. [C.] was put on an EEG and constant video monitoring. [Ms. C.] was told by medical staff to make sure she kept [C.] in view of the video monitor. 16. On January 1, 2017, [Ms. C.] was alone in the hospital room with [C.] and she removed [C.] from her crib out of sight from the video monitor.

When she brought [C.] back into view of the video the baby was limp and not breathing. Medical staff attended and applied stimulation and oxygen. The baby responded within approximately 15-20 seconds. 17. On January 5, 2017, [Ms. C.] again moved [C.] out of view of the video monitor and the baby stopped breathing. The neurologist reviewing the EEG recordings noticed that the levels suddenly went flat and she could hear a gasping sound just before hand. It was not typical of a seizure and the neurologist became concerned that [Ms. C.] had induced the episode.

18. Dr. Michelle Clark from the Child Protection unit at B.C. Children’s Hospital suspected that [Ms. C.] was inducing the episodes in [C.] because no one else had ever been present when [C.] stopped breathing; they had completed a myriad of testis including an MRI and an Echo to ensure that there was no rhythm issue in her heart and they couldn’t find a medical cause for [C.’s] episodes; and they were very concerned that the only two episodes that occurred while they had 24 hour video monitoring set up occurred when [Ms. C.] had moved the baby out of view. 19. [C.] was moved to the Intensive Care Unit at B.C.

Children’s Hospital because it had the capability of doing real time EEG and cardiology monitoring from outside the room at the same time. The doctors were doing everything possible to capture one of [C.’s] episodes of non-breathing. She was under intense surveillance. [C.] did not have another episode. 20. On January 10, 2017, Dr. Clark and MCFD workers met with [Ms. C.] and explained that [C.] and [Ms. C.’s] son M., were being removed from her custody and being placed into the care of MCFD. Dr. Clark had a serious concern that [Ms.

C.] had been causing [C.’s] episodes of non-breathing as they had not been able to find a medical explanation. 21. [C.] was taken off all medication and placed in a foster home. She continues to live with the foster family. [C.] has never had another episode of non-breathing/seizure since January 5, 2017. At present, [C.] is a healthy two year old child. 22. [Ms. C.] provided a police statement on March 10, 2017, where she claimed that [C.] had experienced real seizures in October 2016, but she confessed to having intentionally suffocated [C.] on December 22, 2016, and December 29, 2016.

She claimed that she could not remember the details of the other episodes in December of 2016 and January 2017, but stated that she felt she was responsible for them. 23. On December 21, 2017, [Ms. C.] admitted to her social worker that she had intentionally suffocated [C.] for attention. She stated she “thrives off of attention” and she received a lot of attention from the doctors and people on Facebook. 24. While [C.] was hospitalized in December 2016/January 2017, [Ms. C.] actively updates on Facebook regarding [C.’s] condition. 25. While [C.] was hospitalized, [Ms.

C.] spoke to a girlfriend about setting up a “go fund me” campaign on Facebook called “prayers for [C.]”. [Ms. C.] received approximately $2000 as a result of that campaign. In her police statement, [Ms. C.] admitted that it was her idea to set up the campaign. Information 222085-4-KA 26. On October 12, 2017, [Ms. C.] and [Mr. J.] were observed by police riding together and entering a Walmart together. [Ms. C.] was bound by a recognizance at the time with a condition prohibiting her from having contact with [Mr.

J.]. [ 5 ] The Crown’s position on sentence for the aggravated assault conviction is a jail sentence of 18 months to 2 years less a day, followed by a period of probation of 3 years. On the breach charge, the Crown seeks a conditional discharge of 6 months. [ 6 ] Ms. C. has no criminal record and has entered guilty pleas to these offences. [ 7 ] The defence seeks a suspended sentence followed by three years probation.

If jail is imposed, then the defence seeks a sentence that can be served by way of an intermittent jail sentence. [ 8 ] As noted by the Crown in the written submissions, the applicable principles of sentence are set out in ss. 718 , 718.01 , 718.1 and 718.2 of the Criminal Code . [ 9 ] The Crown points to the following aggravating factors to be considered in sentencing Ms. A.C.: 1. The age of the victim. C. was [omitted for publication] months old when the offences were committed.

Section 718.2(a)(ii.1) states that abuse against a person under the age of 18 years is an aggravating factor.

Section 718.2(iii) makes it an aggravating factor when an offender in committing an offence, abused a position of trust in relation to the victim. The Crown points out that as the mother of C., Ms. C. was in the ultimate position of trust when she committed the offences and she was placed in an additional position of trust by the medical staff at the hospital. 3. The deliberate and repetitive nature of the offence. Ms. C. suffocated her infant several times and lied to medical staff as to the cause of the child’s injuries. 4. The manipulation and deception of medical staff. Ms.

C. subjected her child to numerous medical tests and procedures. Of note, the child was given medications to treat symptoms for medical conditions fabricated by Ms. C. [ 10 ] The mitigating factors as noted by the Crown are the guilty plea and remorse expressed by Ms. C. In particular, Ms. C. provided a confession to the police which furthered the investigation. The Crown concedes that this would have been a difficult case to prove at trial, and Ms.

C.’s admission of guilt relieves the Crown of this onus. [ 11 ] The Crown correctly argues that the primary principles of sentence engaged when abuse of children by their caregivers is present are deterrence and denunciation. This principle was articulated by Judge Blake in the case of R. v. R.A.L. , 2015 BCPC 98 at para. 11 , where he noted: The paramountcy of denunciation and deterrence in cases in which children are victimized is a principle which has been codified, in any event, in s. 718.01 of the Criminal Code .

The public is quite rightly shocked by behaviour which victimizes children, and such behaviour needs to be denounced in the strongest possible way by the courts. [ 12 ] In a similar vein, in sentencing a mother who tried to drown her young son, Judge Lacavera of the Ontario Court of Justice, in R.

v. C.I. , [2002] O.J. No. 4623 , made the following comments at para. 31: Certainly, there must, in the sentencing, in a case such as this be a declaration of society’s abhorrence or denunciation. At the same time I have a duty to society as well to balance that with the eventual rehabilitation of the accused and I must impose what is a fit and appropriate sentence. [ 13 ] Likewise, in the case of R. v. R.S.W ., [2015] N.J.

No. 82 , in sentencing an offender who assaulted his children, Justice Mennie of the Newfoundland and Labrador Supreme Court commented at para. 26: Deterrence and denunciation must be the primary focus of the sentence imposed. It is imperative that the court send a clear message that such conduct will not be tolerated. I must, however, still give consideration to the issue of rehabilitation. [ 14 ] In assessing the fitness of a sentence imposed upon an offender who pled guilty to an offence of aggravated assault of a three year old child, the British Columbia Court of Appeal in the case of R. v.

Dixon , [1994] B.C.J. No. 2615 , noted at para.11: There is no doubt that society has consistently expressed its abhorrence of child abuse. The defenceless state of a child in its relation to the adult world has for long posed a particular challenge to the collective conscience of the community.

In the present case the apparent singling out of a child, not yet three, is a particularly aggravating feature. [ 15 ] Although rehabilitation is a factor to be taken into consideration on sentence for this type of offence, the case authority makes it clear that denunciation and deterrence are the primary factors on sentence to be considered. [ 16 ] In fact, the British Columbia Court of Appeal articulated this point in the case of R. v.

C.G.O. , 2012 BCCA 129 at paras. 74 through 75, when Saunders, J.A. stated the following: [74] In sentencing for offences of abuse of children, there has often been a competition in rank between the objectives of denunciation and deterrence on the one hand and rehabilitation on the other; as the courts see so often, those who commit offences against children come from disturbed upbringings or were abused themselves as children.

Often there has been much to be said for placing rehabilitation as the preeminent objective in the sentencing, particularly in cases where, as here, the offender is apologetic and there is a reasonable expectation that such conduct will not be repeated. In 2005 Parliament resolved this competition between the objectives of denunciation and deterrence set out in ss. 718 (

a) and (

b) and the objective of rehabilitation set out in s. 718 (d), adding to the sentencing provisions of the Criminal Code a special instruction for cases involving abuse of children: 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. [75] The language of s. 718.01 seems to be plain.

Parliament, making a clear statement addressed to the relative power positions of adults and children, the dependency of children, and the obligations of adults towards children, has assigned primary consideration to the objectives of denunciation and deterrence. This plain message is noted in R. v. R.E.L. , 2010 BCCA 493 , 297 BCAC 28. Accordingly, rehabilitation, while highly important, is given secondary status; it simply may; not be the primary consideration: R. v. B.C.M. , 2008 BCCA 365 , 259 BCAC 222. [ 17 ] A pre-sentence report and psychological assessment were prepared for Ms. C.’s sentencing. [ 18 ] Ms.

C. is 28 years old and grew up in a stable family home. Her parents are supportive of her, and her father has provided a letter outlining the struggles the family has gone through as a result of the offence, but confirming their continued support for Ms. C. [ 19 ] Both the pre-sentence report and the psychological assessment outline areas of trauma Ms. C. has experienced throughout her life and in particular during her teenage years.

This includes sexual abuse. [ 20 ] At the age of 17 she became pregnant with her son, who was later placed in her parents’ care as an infant after she attempted to sell him on Craigslist and had thoughts of harming the child. The son was returned to her care in 2010, and in 2015 Ms. C. was granted full custody of her son. [ 21 ] Ms. C. met her current spouse, Mr. J., in 2009, and he is the father of C. Mr. J. has written a letter of support for Ms. C., which was filed with the court during the sentencing proceedings. [ 22 ] Ms. C.’s high school years were problematic and she failed to complete grade twelve.

During her school years, Ms. C. exhibited oppositional and attention seeking behaviour in school, which included making false accusations of being harmed and sexually assaulted. [ 23 ] Throughout her working life, Ms. C. has primarily worked in the restaurant industry and she is currently working in a pub in Burnaby. [ 24 ] The psychological assessment concludes that Ms. C. presents with symptoms and behaviours consistent with a Cluster B personality disorder.

She exhibits features consistent with “Borderline, Antisocial, Histrionic and Narcissistic Personality Disorders.” The report notes that many of these traits and symptoms have been present since childhood. [ 25 ] In addition, Ms. C. has a history of major depressive episodes and a longstanding history of drug dependence. [ 26 ] In addressing the nature of the offence, the psychological assessment indicates the very likely presence of “Factitious Disorder Imposed on Another” in Ms. C. The psychologist concludes that it does not appear there was any malicious intent to injure her daughter, but rather Ms.

C. would suffocate her daughter to the point of lost consciousness, to then seek immediate help and intervention. [ 27 ] The psychologist notes that the assaultive behaviours are more reflective of Ms. C.’s mental illness, as opposed to assaultive and

injurious intent, but she was aware of her actions and was aware that what she was doing was wrong and illegal. [ 28 ] On the issue of prognosis, the psychologist notes that Factitious Disorder and related personality disorders are not highly amenable to change given the entrenched pattern of underlying pathology and the prognosis is extremely guarded. [ 29 ] The greatest concern with regard to Ms.

C.’s risk centres on her mental health and substance abuse functioning, and even with greater scrutiny and monitoring, the psychologist cannot say with certainty that her risk to reoffend is low. [ 30 ] Both the pre-sentence report and the psychological assessment recommend extensive community supervision for Ms. C. [ 31 ] The issue to be determined is then, what is an appropriate sentence for Ms.

C. taking into account all of the above factors? [ 32 ] On Information 222085-4-KA, the offence of breach of recognizance, I will impose an absolute discharge. [ 33 ] In relation to the aggravated assault offence on Information 222306-1, the Crown has provided case authority in support of its position of a jail sentence in the range of 18 months to 2 years less a day in jail. [ 34 ] I do not disagree with the Crown that this is the general range of sentence appropriate for an offence of this nature committed by a person in a position of trust against an infant child. [ 35 ] A suspended sentence does not adequately address the sentencing principles of denunciation and deterrence.

Nor does a sentence within the intermittent jail range adequately address these principles. [ 36 ] I accept Ms. C.’s remorse. Her remorse is evident by her cooperation with the police and guilty plea. This is a case that was difficult for the police to investigate and difficult for the Crown to prove. Contrary to her lawyer’s advice, Ms. C. cooperated with the authorities and confessed to the offence. [ 37 ] I am taking account of the underlying mental health issues suffered by Ms. C. and the abuse she has suffered as a child, youth and young adult. Clearly, her rehabilitation is an important sentencing factor.

However, denunciation and deterrence remain the principle factors in sentencing for this offence. [ 38 ] The principles of denunciation and deterrence require a jail sentence be imposed. [ 39 ] I find that Ms. C.’s cooperation with the authorities in the investigation of this offence and her guilty plea are significant mitigating factors that should be taken into consideration on sentence. [ 40 ] In all of the circumstances, I have come to the conclusion that a sentence of 12 months is appropriate followed by a period of probation of 3 years. [ 41 ] The conditions will be as follows: (

a) Keep the peace and be of good behaviour. (

b) Report in person to a probation officer within 48 hours of your release and thereafter as and when directed. (

c) You must reside at a residence approved of in advance by your probation officer. You must not change your residence without written permission from your probation officer. (

d) You must have no contact or communication, directly or indirectly, with C.J. except in accordance with a Family Court Order made by a Judge who has reviewed this order or with the express permission of the Ministry of Children and Family Development. You must forthwith file a copy of this order in any family proceeding in which you are a party or become a party. (

e) You must not publish or publicly make available any information respecting C.J. via the internet or social media including Facebook, Twitter, My Space, Instagram, or any other like service. (

f) You must not go to any residence, school or workplace of C.J., except in accordance with a Family Court Order made a by a Judge who has reviewed this order or with the expressed permission of the Ministry of Children and Family Development. (

g) You must not be alone in the presence of any person you know to be or reasonably appears to be under the age of 12 years old. (

h) You must not go to any public park, public swimming area or community centre where persons under the age of 12 years are present or can reasonably be expected to be present, or a day-care centre, school ground or playground. (

i) You must not date, or enter into a marriage or common-law relationship that has the care or access to children under the age of 12 years until you have identified to your probation officer the person with whom you propose to enter into such a relationship, and your probation officer has informed that person of your history as described in your criminal record, pre-sentence report, and these Reasons for Judgment. (

j) You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences or registration certificates. (

k) You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription

(

l) You must attend, participate in and successfully complete any intake assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to: alcohol or drug abuse. (

m) Having consented, you must do the following: 1. At the direction of your probation officer report to the Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment. 2. Attend all scheduled appointments with your doctor, psychiatrist and counsellor. 3. Take all medications prescribed to you. 4. Give your doctor, psychiatrist and counsellor a copy of this order. 5. You must provide you probation officer with the names, addresses and phone numbers of your doctor, psychiatrist and counsellor. 6.

Tell your doctor, psychiatrist and counsellor that, if you do not follow any terms of this order, he or she is to inform your probation officer. If you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer. (n) 1.

You must sign any waiver of confidentiality or release of information forms as will enable your probation officer, counsellors or treatment providers to monitor your attendance, and completion of any intake, assessment, counselling, or treatment programs, and to collaboratively discuss your treatment needs. 2. You must sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. 3.

You must provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed by your probation officer. [ 42 ] I make the following Ancillary Orders: (

a) Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. (

b) You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. (

c) The victim surcharge must be paid forthwith, with imprisonment in default of 1 day. ____________________________ The Honourable Judge P. La Prairie Provincial Court of British Columbia