R. v. S.A. and M.J. Date:, 2010 BCPC 263

Citation: R. v. S.A. and M.J. Date: 20100422 2010 BCPC 0263 File No: 32709-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.C.A. M.L.J. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHM Counsel for the Crown: G. Bains Counsel for the Accused: J. Bennie Counsel for the Accused J.: R. Reiffer Place of Hearing: Port Alberni, B.C. Date of Judgment: April 22, 2010 [ 1 ] THE COURT: Ms. A. and Mr.

J. are the parents of a child who, at the time of the offence, was six weeks of age. [ 2 ] They have entered a plea of guilty to a charge t hat they did unlawfully abandon the child and did thereby endanger her life. [ 3 ] This happened on July 23, 2009, in Port Alberni. It was a very hot day. The parents parked their van at the Chances Rimrock Gaming Centre in Port Alberni at a little after three in the afternoon. The temperature was 27.9 degrees centigrade. I am told that the humidex equivalent was 40 degrees centigrade. [ 4 ] At a little after three Mr. J. got out of the van and went inside the casino.

He was caught on video. He went about playing slot machines. [ 5 ] A minute or two later the mother, Ms. A., got out of the vehicle. She spent a short time near the vehicle, but by 3:25 in the afternoon she was seen on the video receiving money from Mr. J. Both then continued with the playing of slot machines. [ 6 ] A few minutes later, at about 3:36, a civilian was passing by on her way in to the casino when she heard a cry from the van. She initially thought that cry to be a crow, but there were not any around.

She listened some more and ended up going to the van, where she saw the child kicking and screaming. [ 7 ] That passerby brought a security guard, who observed that the windows in the van were cracked, in the term used in the report, which I take to mean partially open. The security guard noticed that the air inside the vehicle was very hot. [ 8 ] At 3:39 a public announcement was made inside the casino, and as a result of that the mother, Ms. A., returned to the vehicle. The father continued to play slot machines. [ 9 ] The mother went out to the vehicle and brought the child inside.

The child was in considerable distress. The staff at the casino

provided cold cloths in an effort to bring the child's temperature down. [ 10 ] As the child was taken towards the first aid room, the video showed that the father was still gambling, but he ultimately did get to the first aid room. [ 11 ] The child was taken to the hospital, treated and released a few hours later. [ 12 ] The social workers reported that the mother's story kept changing. She initially said that she forgot that the child was there. She denied playing the slot machines. She later admitted that.

She pretty well had to because the video showed that she was. [ 13 ] It is pointed out by counsel for the Crown that this was not an accident; it was intentional, and that is a proper inference from the fact that the windows were down and that there was a sun block on the windshield of the van. Sometimes people will do that, even if the vehicle is unoccupied.

But the mother's prompt response when the PA announcement was made demonstrates that she was aware the child was in the vehicle. [ 14 ] That child had been born just weeks earlier, on June 5 of 2009. [ 15 ] The issue before the court is whether there should be a conditional sentence order or whether the offence requires a sentence to jail in its traditional sense. This is a case where a conditional sentence order must be considered by the court. [ 16 ] Neither of these accused persons, who are the parents of four, complains of any difficulties in their upbringing.

Both the mother and father speak of adequate upbringing and make no complaints about them. Both are of aboriginal descent, although it is hard to understand how that could have any bearing on this offence. I take that factor into consideration; I do not see any way to give it any meaningful weight in a case like this, especially in light of the pre-sentence reports that speak of fairly normal upbringings by the two accused. [ 17 ] This child was actually endangered.

It is only, in my view, the good fortune of the passerby hearing a cry that was first mistaken for a bird and looking into it which saved this child from dire harm. [ 18 ] When the child was taken to the hospital, it was removed from the parents' care by the Ministry of Families and Children. Eventually, in November, all of the children were removed by the Ministry. This is only a peripheral consideration for the court on this sentencing. I consider that the child, although soon returned to the parents, I think some six weeks after its initial removal, had to be removed again in November.

This demonstrates that the event of July 23, 2009, did not impress the parents in any meaningful way with the need to look after the children. [ 19 ] The pre-sentence reports and Exhibit 1, written by the social worker, do show, in part, that in the last month and a half or two months the parents have been reacting appropriately and responsibly to the Ministry's plans for the reunification of the family. It is said on behalf of the Ministry that the parents have gone above and beyond what has been required for them to learn how to take proper care of their children.

There is some emphasis, as I see it, on the need that these two act together in order to do so, the inference from that being that neither is likely to have a lot of success on his or her own. [ 20 ] I give that change of attitude by the parents considerable weight. It goes toward the sentence that I will impose, for it shows that they are trying, and that to me means that they are, to some degree at least, specifically deterred. [ 21 ] The pre-sentence reports were prepared not long ago.

That for the father was prepared on 02/03/2010, which I take it to be February 3, 2010, and that for the mother was made on the 25th of February 2010. [ 22 ] Both of those pre-sentence reports speak of limited insight by the individual parents into the offences. There is some indication that the parents appeared indifferent or unable to comprehend the severity of the offence. [ 23 ] That being said, the Ministry, which is responsible for these things, has returned two of the four children and contemplates returning the balance over the next few months.

That speaks to me of some considerable improvement in the parents' capacities for and willingness to look after the children properly.

Again, I emphasize that that is a peripheral consideration, but it shows some level of specific deterrence and some level, perhaps, of rehabilitation of these two parents. [ 24 ] I have had it urged upon me by counsel for the parents that a conditional sentence order will suffice to meet the principles of sentence in this case. [ 25 ] Counsel for the father suggests that this was a matter of very short duration, approximately 20 minutes, and would distinguish this case from others that I will refer to, such as R. v. D.N. and R. v.

S.F., where the children were left, in those cases, unattended for a number of hours. [ 26 ] That overlooks the participation of the passerby.

I cannot know how long this child would have been left unattended had the passerby not noticed the child's plight and notified the security office in the casino. [ 27 ] One need not be using any imagination or speculation to realize that the child's life expectancy in a van that was pretty well closed up at a time when the humidex rating was about 40 degrees centigrade would not be very long. [ 28 ] The seriousness of this offence is not to be minimized by suggesting that it was only for 20 minutes. [ 29 ] It is said that nothing like the fire that happened in R. v. D.N. happened in this case.

I reject that submission. In R. v. D.N . there was a fire caused by a child left unattended playing with a candle. This child was absolutely helpless and was left in a situation that she could not escape from. In D.N. the child did escape from that situation and contacted help. If anything, these circumstances are more serious, although that is a difficult comparison to make.

[ 30 ] In R. v. S.F. the child was left unattended for a number of hours. The mother was consuming alcohol. [ 31 ] It really does not matter what the parents are doing, if they leave a child in these circumstances. If the parents have done this by their own volition it does not matter, to my view, whether they are consuming alcohol, gambling, fishing or any other pastime they may choose. The gravamen of the offence is the serious risk that the child was placed into. [ 32 ] It is said on behalf of Mr.

J. that he has not been working recently, although he has worked in the past, because he is now working full time on parenting courses. For the mother, it is said that she also is not working. She is placing all of her emphasis on her children. [ 33 ] It is pointed out that the somewhat guarded pre-sentence reports were written in February, and at that time there was a question of whether the parents, specifically the mother, were capable of learning how to deal with the children.

Reliance is placed upon Exhibit 1 to demonstrate that that capacity is there. [ 34 ] It is said that the parents have recognized, accepted and embraced the needs that they have, in order to learn things, in order to be able to care for their children properly.

To the degree that they have, they should be encouraged to continue, and I endorse that. [ 35 ] It is said that a conditional sentence order recognizes society's abhorrence sufficiently and that there need not be a sentence of actual jail in order to send the message to the community that this type of conduct is intolerable. [ 36 ] Both parents entered their guilty pleas at the first available opportunity.

Neither of them has any criminal record. [ 37 ] In considering what the sentence should be in this case, as I did during the noon-hour adjournment, I asked myself what the message would be if a conditional sentence order were imposed, for I accept that in many cases a conditional sentence order can serve all of the principles required by the Criminal Code .

That includes general deterrence, denunciation, specific deterrence and rehabilitation. [ 38 ] The question is, if a conditional sentence order were imposed, what terms could convey to the community that this type of neglect of children, this child, simply will not be tolerated. One has to bear in mind the seriousness of the offence.

One also has to bear in mind the circumstances of the individual offenders. [ 39 ] While there were initially concerns about the parents' ability to parent, there is nothing put before me today that would persuasively say that they are so limited in their understanding that they did not know the risk that they were putting the child to. [ 40 ] Counsel for the Crown has provided me with the reasons for judgement in R. v. D.N., [2001] O.J. No. 647 , judgment of the Ontario Court of Justice made on February 21, 2001. [ 41 ] That is a situation wherein the accused left a child home at night for a number of hours.

She went gambling and did not return until some considerable time later. In the meantime, the child started a fire. The child escaped and notified the building superintendent. This was obviously in an apartment building.

That neglect endangered not only the child, one could observe, but also any other occupants of the apartment building. [ 42 ] The offender in that case, since the offence, had taken some steps to rehabilitate herself, including taking a parenting course and participating in conditions in a plan of care pursuant to the Ontario equivalent of the Ministry of Children and Families. [ 43 ] The judge, at paragraph 42, identified the issue to be whether the sentence ought to be actual incarceration or whether it ought to be served conditionally in the community.

That is the same issue that faces the court here. [ 44 ] As in the case of R. v. D.N ., it is said by the Crown in this case that there is no positive evidence that these parents would re- offend. Similarly, D.N . did not have a great deal of insight. D.N. 's background was previously good. She had no prior criminal record or criminal history. It was said, at paragraph 49, that: A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [ 45 ] In this case the court's primary concern, at this stage of proceedings, is denunciation, for the parents are, at least partially, specifically deterred. [ 46 ] D.N. is slightly distinguishable because she had no plan of rehabilitation.

These two parents have done somewhat better and, in the words of the social worker found in Exhibit 1, they went above and beyond what is required. [ 47 ] It was said in R. v. D.N . that the mother expressed remorse by her plea. I accept that Mr. J. and Ms. A. similarly express remorse by their pleas. They also have gone some distance towards demonstrating legal remorse, which requires more than an assertion that one is sorry about what one has done, but requires that one take steps to insure that the offending conduct will not be repeated. Mr. J. and Ms.

A. have done that. [ 48 ] Nonetheless, I remain troubled by the remarks about a lack of insight that the parents have shown into their conduct, especially that of Mr. J. [ 49 ] Punishment must remain proportionate to his or her level of responsibility in the crime. [ 50 ] R. v. Proulx from the Supreme Court of Canada was quoted at paragraph 55 of the R. v. D.N. decision, which said, in part, that: Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating

circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. [ 51 ] The judgment in Proulx continued with the converse, pointing out that a conditional sentence may provide sufficient denunciation and deterrence.

In paragraph 59 the court said: This is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offenses must be communicated in the clearest of terms since they involve a very high level of moral blameworthiness. [ 52 ] It is said that that judgment is not binding on this court and, indeed, it is not. But it is persuasive, and the quote in the following paragraph from Chief Justice Lamer in R. v. L.F.W. (2000), 2000 SCC 6 (CanLII) , 140 C.C.C. (3d) 539 , is clearly of the highest persuasive power.

The Chief Justice said: Courts have tended, even under the new sentencing principles . . . to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. [ 53 ] Further along, in paragraph 62, the sentencing judge in R. v. D.N. said that the Criminal Code

section : . . . attracts criminal liability to the mere potential to endanger the life or seriously injure the child. When actual endangerment to life or serious injury is realized in the commission of the offence, the Courts must consider that this fact makes the offence more serious. [ 54 ] In my view, that paragraph has a bearing on this case for that child's life was endangered. [ 55 ] In R. v.

D.N. the court concluded that the gravity of the offence required a strong denunciatory statement by the court and continued with the finding that the judge was not satisfied that a conditional sentence order would meet the fundamental purpose and principles of sentencing. He was not satisfied that the statutory conditions and special conditions that might be sensibly fashioned could be sufficient to meet the principles of denunciation and deterrence in the case. [ 56 ] R. v. S.F. , also provided by the Crown, cited at [2005] O.J. No. 2381 . A mother left a three year old in an apartment.

Police were called when a witness saw the child hanging out of the window. At paragraph 12 it was said that: There is no group in our society that is more defenceless and therefore more deserving of protection than children, especially infants. They not only rely on society generally for protection, they rely particularly on their parents for such protection.

When a parent fails in his or her duty to provide that protection, it represents conduct that is [essentially] reprehensible because it exposes completely innocent and extremely vulnerable members of our society to the risk of harm. [ 57 ] In Paragraph 17 the sentencing judge reminded himself, as sentencing judges are required to do, that: . . . the sentencing process cannot be looked at only from the perspective of the accused person. The role of the public and the effect on society at large plays an equally important

part in fashioning an appropriate sentence. [ 58 ] I have to consider especially the effect on society at large of any sentence imposed in this case. [ 59 ] The judge in that case found, as I have, that the basic prerequisites for a conditional sentence have been met. That is, the statutory prerequisites which have to be considered before a conditional sentence can even be given any thought as an option. [ 60 ] At paragraph 21 the judge rejected the imposition of a conditional sentence because it would fail to achieve the necessary objective of deterrence, both individually and generally.

It would also fail to meet the sentencing objective of denunciation. This point was made in paragraph 22 and further reference is made to the words of Chief Justice Lamer in R. v.

Proulx , 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 at paragraph 106 : There may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. [ 61 ] The sentencing judge continued at paragraph 23, with the observation that: Citizens of this community would, in [his] view, expect that our courts would make it crystal clear to all that such conduct will simply not be tolerated because of the serious danger it visits on the youngest and weakest among us.

The judge then continued, expressing his awareness that if the mother were sent to jail she would be separated from her daughter. The point was made that: This is . . . not a desirable or comfortable result [but that the] appropriate penalties must be imposed on people who commit criminal acts. [ 62 ] In paragraph 26 the sentencing judge in R. v.

S.F. said that: . . . were it not for the steps that [the mother had] taken to address her [substance abuse problem] and the fact that she has a very young child to care for, [he] would have concluded that a sentence of the upper range of what the Crown sought was indeed justified. [ 63 ] In this case I find that to be good guidance. Had the parents not taken the steps that they have taken recently, then a sentence at the upper range that Crown counsel has suggested would be suitable.

Crown has suggested a period of three to six months incarceration, followed by a three-year probation order. [ 64 ] It is only because of the efforts that the parents have made that I consider the lower end of the scale to be appropriate.

[ 65 ] Some reference is made to R. v. Mason , and the citation for that is [1999] B.C.J. No. 1544 , which dealt with the negative and undesirable effects that flow to families when parents are incarcerated.

The judge in that case, at paragraph 18, pointed out that were the courts to accede to suggestions that persons with obligations to a dependent family, even one that would be devastated by the result of a jail sentence, should be given a non-custodial sentence for that reason alone, it would remove the deterrence for all future potential offenders of similar circumstances. [ 66 ] That point was made as early, and probably earlier than 1981 in R. v. Bengert wherein Mr.

Justice Berger said basically the same thing. [ 67 ] I do not see, having considered the authorities and considered the circumstances of the parents and the circumstances of the offence that a conditional sentence order could possibly succeed in demonstrating society's abhorrence to this type of conduct. [ 68 ] Each parent will be sentenced to a period of three months imprisonment.

Each will be bound by a probation order for a period of three years thereafter. [ 69 ] The terms of the probation order are that you must, within two business days of your release, report to the Port Alberni Community Corrections Office located at 2999 - 4th Avenue, and you must report thereafter as directed by your probation officer. [ 70 ] You must notify your probation officer of your current residential address, and you are not to change your place of residence without prior notification to your probation officer. [ 71 ] You are to take such assessment, counselling or programs as may be directed for you by your probation officer, and that includes a forensic assessment and parenting programs. [ 72 ] You are not to enter any licensed gaming establishments. [ 73 ] You must keep the peace and be of good behaviour. [ 74 ] There was a suggestion that there be a term that you abstain from the consumption of alcohol or intoxicating substances.

Neither of you seem to have any problem with those. I could not see anything in the pre-sentence report or in the submissions put before me that would support the imposition of such a term. [ 75 ] Is there anything else, counsel? [ 76 ] COUNSEL: No, Your Honour. [ 77 ] COUNSEL: No, thank you. [ 78 ] THE COURT: Thank you. [ 79 ] COUNSEL: They won't be in a position to pay the victim fine surcharge, Your Honour. [ 80 ] THE COURT: Victim fine surcharge is waived, for both. (REASONS CONCLUDED)