Her Majesty the Queen - v. -, 2020 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 14 Date: April 1, 2020 Informations: 991093591, 991052326, 991054116 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - N.G.H. -and- K.D. Appearing: Ms. L. Andrews For the Crown Ms. T. Hagey For the accused N.G.H. Mr. B. Pyle For the Accused K.D. Note: Pursuant to

Section 486.4 of the Criminal Code the Court made an order directing that the identity of the victims, and any information that could disclose the identity of the victims, shall not be published in any document or broadcast or transmitted in any way. SENTENCING DECISION M. HINDS J

[ 1 ] On January 21, 2020 N.G.H. and K.D. entered guilty pleas on Information 991093591 to the following offences: That between December 30, 2016 and May 21, 2018 at or near Regina, Saskatchewan they did: Being the parents of K.H., a child under the age of sixteen years, fail without lawful excuse to provide the necessities of life to K.H., contrary to section 215(1) (

a) of the Criminal Code . Being the parents of R.D., a child under the age of sixteen years, fail without lawful excuse to provide the necessities of life to R.D., contrary to section 215(1) (

a) of the Criminal Code . [ 2 ] On January 21, 2020 N.G.H. also entered guilty pleas on Information’s 991052326 and 991054116 to the following offences: That on or about May 21, 2019 at or near Regina, Saskatchewan he did Being bound by a probation order made by a judge of the Provincial Court of Saskatchewan on the 8th day of May, 2017, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall have no contact with K.D. except through an adult third party to arrange child access, contrary to

section 733.1 (1) of the Criminal Code . That on or about May 31, 2019 at or near Regina, Saskatchewan he did: Being the person named in a recognizance entered into before an officer in charge that has been confirmed by a justice did fail without lawful excuse to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code . [ 3 ] The Crown takes the position that the appropriate sentence for N.G.H. for his offences should be 18 months incarceration and that K.D. should be sentenced to 12 months incarceration for her offences.

Counsel for N.G.H. submits that the court should impose a 12 month conditional sentence order on him. Counsel for K.D. submits that the court should suspend the passing of sentence on her and place her on probation for a period of 24 months. [ 4 ] For the reasons as set out below I sentence K.D. to be placed on a 16 month conditional sentence order followed by two years of probation . I sentence N.G.H. to be placed on a conditional sentence order for 20 months, followed by two years of probation. Agreed Statement of Facts [ 5 ] The parties filed the following Agreed Statement of Facts: 1.

On May 21, 2018, at 23:55, Mobile Crisis Workers and a Regina Police Service member attended to 1446 Princess Street, Regina, Saskatchewan as a result of an anonymous tip that there was a 16 month old child with bruising on his forehead and face, and concern that there was no sober adult in the home. 2. When Mobile Crisis Workers and RPS arrived at the home, N. H. answered the door and immediately turned around and ran out of the back of the house. He was arrested for breaching a non-contact condition with K.D., who was present in the home. Both K.D. and N.G.H. resided at the residence at the time.

N.G.H. was noted to be intoxicated at the time of his arrest. K.D. smelled of alcohol, but not noted to be intoxicated. She was also suffering from a leg injury that required her to use crutches. 3. Once Mobile Crisis Workers entered the home, they noted the home was in disarray and extremely dirty, with garbage, clothing and food covering the floor. The home smelled of urine, feces and rotting food. 4. K.D. led workers to the bedroom which contained a mattress and a crib. K.H. (DOB Dec 29, 2016), 16 months old, was located lying in the crib with a heavy jacket on that was too warm for the season.

The crib contained 2 or 3 dirty diapers and food, and smelled strongly of urine. K.H. was noted to be soaking wet and smelled of sweat and urine. 5. The Mobile Crisis worker took K.H. to be changed. She noted that his skin was extremely dry and red and sore in many spots and crevices. He was noted to have multiple bruises on either side of his forehead. He had red rashy cheeks and crusty blood or mucous on top of his lips. His arms, legs and torso had red patches. K.H.’s head was misshapen and the back of his head was flat.

His head was turned to one side and he did not turn his head to look at the worker, and would only follow her movements with his eyes. Workers also

noted that he had a burn in the shape of a circle about the size of a quarter on his abdomen. 6. After speaking with K.D., who had explained the injuries were from K.H. falling out of his crib, and indicated that K.H. had not seen a doctor, workers deemed the situation was unsafe and apprehension was deemed necessary, as workers believed that K.H needed immediate medical attention. They also apprehended R.D. (DOB November 18, 2011), who was six years old and also present in the home at the time. 7. R.D. is the biological daughter of K.D. K.H. is the biological son of both K.D. and N.G.H.

The couple have been together since 2015 and N.G.H. and K.D. are both children’s primary caregivers. 8. Upon arrival at the Regina General Hospital, nursing staff noted K.H. was very dirty and had a foul smell emanating from him and needed to be bathed. His hair was dirty and matted. The red patches on his body appeared red and inflamed. 9. K.H was crying and inconsolable. Workers noted that he seemed lethargic and inactive. He was given a bottle of formula, which he quickly consumed and then cried for more. He consumed a total of seven bottles each of 571 mL of formula before he was content. 10.

K.H. was assessed by medical doctors at the hospital. Dr. Soper, who is a doctor specializing in child abuse, determined that the burn on the abdomen was highly suspicious for an inflicted injury. It appeared to be beginning to heal. 11. Dr. Soper also determined that K.H. had severe widespread eczema that was poorly controlled and had left scarring and lesions. This would be very uncomfortable from itching. Medical reports confirmed he had tested positive for MRSA (Methicillin-resistant Staphylococcus aureu) in August of 2017 and was treated.

However, the medical reports indicate that K.H. had not seen any doctor for medical service since November 16, 2017. 12. K.H. was noted to have four bruises on his forehead on the left and right side, two of which were fairly large. K.H.’s head was noted to be misshapen and very flat on the back of one side. This was due to the child being on his back for a prolonged period of time looking in one direction. At the time of apprehension, it was believed that this was unlikely to correct and his head would be misshapen permanently. 13.

K.H. was behind his developmental milestones, was unvaccinated and had significant tooth decay that would likely cause him significant pain and ill health in the future. XRay’s showed that he had a previous injury to his elbow that had healed, possibly from a fracture of the left arm. 14. K.H was noted to have severe constipation, which is common from a lack of fluids or insufficient fiber or fruit in the diet. He was noted to be dangerously dehydrated at the time of his admission to hospital, and was at a risk of seizing from extreme dehydration.

Staff had to wake him each hour during the night after his discharge to give him pedialyte. 15. Dr. Soper prepared a report with all of her observations of K.H and determined, based on all of his injuries and the laboratory findings that the home environment was not able to meet his needs. This was based on the evidence of inflected injury in the circular burn on his abdomen, and his presentation with dehydration, which affected both his mental status (lethargy and irritability) and kidney health, his poorly controlled eczema, dental carries and developmental status. 16.

Upon apprehension on May 20, 2018, R.D. was asked what she had eaten that day. She told the worker that she had not eaten breakfast, lunch or dinner that day, and had only eaten some chips. Workers noted that she was scratching her head and had red scabs on her head and nits (lice). She told the worker her head had been itchy. 17. R.D. was interviewed on May 23, 2018 about the day she was last at her house. She told the RPS member that she recalled her mom and dad fighting all day about getting drunk. She was scared and stayed in the bedroom where she took care of her brother.

When asked what she had eaten that day, she stated “potatoes”. During her interview on May 23, she told police that she had taken her mom’s card and walked to Dollarama and bought a bag of chips for herself and cheezies for her little brother and that she had given him a bottle of juice from the fridge with his cheezies.

18. At the time of apprehension, the mobile crisis workers noted that she was dirty and unkempt and was scratching her arms and head. R.D. was observed to have a rash on her arms which was also from severe eczema. R.D. told interviewers that she had not been attending school due to bullying about her rash. 19. Workers noted during her interview that she had a bug crawling on her scalp that was thought to be lice. She was later diagnosed with scabies. No other injuries to her body were noted.

She was seen by a doctor and given a hydrocortisone cream for her rash on her face and another cream for the rash on her body. The rash significantly improved with the cream treatment within a week. Medical records confirmed the last time R.D. saw a medical doctor was November 16, 2017. 20. K.D. was interviewed in a non-custodial statement on May 31, 2018 prior to charges being laid. K.D. told police that she had not been participating much in the child care for R.D and K.H during the last month due to her injury to her leg and believed N.G.H. was caring for the children.

She denied having any knowledge of the burn mark to his abdomen. She told police that she believed the bruises to K.H.’s forehead were due to him falling out of his crib, or banging his head on the crib, but this was based on what N.G.H. had told her. She told police that K.H. had hurt his elbow when he fell off of her bed to the floor and that he did not see a doctor for the injury. She admitted that both she and N.G.H. had an alcohol problem and that she suffered from post-partum depression after K.H.’s birth.

She admitted that she was responsible and knew she had been failing her kids over the past few months. 21. K.D. was again interviewed in a warned interview after her arrest on February 28, 2019. She told police that she and N.G.H. had been drinking all of the time around the time the children were apprehended. She also advised that the had not taken K.H. to the doctor about his injured elbow due to fear that they children would be apprehended. 22. N. H. was arrested on February 28, 2019 by Regina Police Service.

In a warned and cautioned statement, N.G.H. admitted that he had been largely looking after the children around the time they were apprehended, due to K.D.’ injury, although she did participate in the child care. He admitted that he cared for R.D. as a parent. N.G.H. denied any knowledge of how K.H. received the burn mark on his abdomen. When asked about the bruises on K.H’s head, he advised that R.D. had told him that K.D. had fallen out of his crib on to the floor. He told police that they had not taken the children to the doctor due to their alcohol use and fear of having the children apprehended .

When asked what K.H. had eaten or drank during the day he was apprehended, he advised he did not know and believed that family members who did not reside in the residence had been caring for the children, although acknowledged that they were only present at the residence for a couple of hours. He could not recall what day he had fed the children due to his intoxication. He admitted he could not remember much from that weekend due to his intoxication. N.G.H. also admitted that R.D. had not attended school for the 5 or 6 months because the eczema on her face was so bad they were concerned she would be bullied.

Statements from each of the accused [ 6 ] During sentencing K.D. read aloud a statement she had prepared and filed with the court. Her statement was as follows: I take full responsibility for not being the parent my children deserved. I never should have allowed what happened to happen, I should have reached out for help but I didn’t, my addictions got the best of me. I think about it every day especially when I look at them and how amazing they are. I can never take that pain and hurt I’ve caused them, but I can try to heal with them.

I now know what I have done will always be a part of them, as well as a part of me. I have a lot of guilt, and anger towards myself and so do my children. Since then I have been working on becoming the parent my children deserve, my kids deserve the very best so I’m giving my all to every opportunity given to me to be a better parent and person. My kids are my everything, they mean the world to me and I cannot imagine a life without them. I have built a great bond with them since being at Raising Hope. I don’t know what I would do without my babies. They are so loving, caring and beautiful little people.

They would be so heartbroken if we were all separated again. They have all become so close with myself and N.G.H. again. I think they would be very confused and sad if we were separated. It would devastate all of them and myself. I love them more than anything. N.G.H. and I are working very hard to be better parents, our relationship is much more healthy, supportive and positive. We support one another on this life we’re building with for our children. We take care of them in a much more healthier environment and take all of their needs seriously and act fact if they need any medical attention.

I will never let anything ever happen to my babies ever again. If I were to ever need help of feel overwhelmed I know there is support and to never be scared of reaching out for help. I have built a lot of healthy relationships since being sober. I now know I am not alone nor do I ever have to feel that way. I just wish to continue on this path of healing and sobriety. I want a great future and a great foundation for my babies. I want them to know I love them and that I’m here for them and support them. I wish to be the person I needed growing up.

I want my children to know there’s good things in life and not just trauma. I wish to be everything they need and someone they can trust and look up to. [ 7 ] During sentencing N.G.H. read aloud a statement he had prepared and filed with the court. It stated: My name is N.G. H.. I claim full responsibility for the charges put against me. I feel so much guilt and shame when I think about how

our kids were affected by our alcoholism, they weren’t always meeting their needs like school, food and visits to the doctor when they needed it. I still think about how bad our addictions were and I never want to put myself or my family through that hurt again. I love my children with all my heart and it scares me so much to think I’m facing jail time and being separated again. I’ve built such a happy healthy bond my children. I feel it would hurt us all if we were separated again because they are so happy every day I come to visit. I can’t imagine my life without them.

I’ve been work so hard to better myself so nothing like this happens again. I’m in a couple of parenting programs and I’m still waiting for a call back to get into another one. I’m also doing programs at addiction services and they set me up to start seeing one of their psychologists to start working on my mental health. I’m also taking medication for my anxiety and depression. I’m also taking anger management and healthy relationships courses. I feel all these programs are helping me learn and helping me with mine and K.D.’s relationship because I am learning how to communicate in a happy healthy positive way.

I’m gonna continue learning and take every opportunity that these programs have to offer. Thank you for taking the time to list to me. Criminal Record [ 8 ] K.D. does not have a criminal record. N.G.H.’s adult criminal record is as follows: three convictions for failing to comply with a probation order contrary to

section 733.1 of the Criminal Code , one conviction for failing to appear contrary to section 145(5) of the Criminal Code and one conviction for assault contrary to

section 266 of the Criminal Code . N.G.H.’s youth criminal record is as follows: three convictions for failing to comply with a youth disposition contrary to

section 137 of the Youth Criminal Justice Act , SC 2002, c 1 one conviction for failing to appear contrary to section 145(5) of the Criminal Code and one conviction for assault contrary to

section 266 of the Criminal Code . Steps taken by K.D. and N.G.H. since the apprehension of the children [ 9 ] Defence counsel called two witnesses during the sentencing hearing: Karli Rasmussen and Daniel Hintz. The evidence of Karli Rasmussen [ 10 ] Karli Rasmussen has a Bachelor of Social Work which she obtained from Minot State University in 1997. For over nineteen years, Ms. Rasmussen held various child welfare positions with the Government of Saskatchewan, Ministry of Social Services.

These positions included being: a Child Protection Worker, Youth Services Delivery, Assistant Supervisor and Supervisor of Child Protection and Manager of Service Delivery overseeing four Child Protection Units. [ 11 ] Since April 2018, Ms. Rasmussen has been working for the Street Workers Advocacy Program (SWAP) as a Case Manager for the Raising Hope program. Raising Hope is a residential program operated out of an apartment building in Regina for pregnant woman, woman who have recently given birth and women who have children in foster care.

The women who are referred to the program typically have substance abuse issues. The overarching goals of the Raising Hope program is to avoid child apprehension from occurring and to reunite families. The majority of the programming is delivered in the apartment building. Group and individual work occurs Monday through Friday. Group work includes addictions programming, Narcotic Anonymous meetings, parenting classes, wellness groups, art therapy, positive thinking and healthy relationships. An addictions worker does individual case planning with all of the women.

A psychologist comes in regularly and does therapeutic sessions with each of the women. A family physician comes to the apartment building every two weeks to provide health care to the moms and children. There is also onsite child care for the residents which enables them to attend on and off-site appointments. The apartment building is staffed 24 hours a day, seven days a week. The doors are locked. Anyone who comes into the apartment building must be approved by staff. Ms.

Rasmussen and her colleagues at Raising Hope work with women residents to identify goals they wish to work on and assist the women to reach these goals. The Raising Hope program can take up to 15 families at a time. There are currently 13 families in the program. [ 12 ] The majority of referrals to the Raising Hope program come from child protection staff. Unlike some programs, there is no time limit for women and their children to reside at Raising Hope. The decision to move out of the Raising Hope program is made by the mother in conjunction with Child Welfare and the staff of the program.

The average stay in the program is 10 months. One resident has been there nearly two years. [ 13 ] K.D. was referred to Raising Hope by her Child Protection Worker and was approved to come into the program on June 7, 2019. She continues to be in the program and lives in her own two bedroom apartment with her three children. K.D. initially moved into Raising Hope when she was pregnant with her youngest child N.H., who was born on June 20, 2019. K.D. and N.H. returned to Raising Hope on June 22, 2019. In June 2019, K.D.’s other children K.H. and R.D. were in care, but began to have visits with her in the building.

At first the visits were supervised and over time the visits were extended. In November 2019, K.H. and R.D.’s Child Protection Worker determined that it was safe for them to be placed in K.D.’s care. The children have remained in her care since.

[ 14 ] Uniquely, Raising Hope has a Child Protection Worker, Danielle Hintz, working in the building. All women in the program who have an active child protection file work with Ms. Hintz. Ms. Hintz works in collaboration with Ms. Rasmussen and her team. This provides for information sharing and collaboration. [ 15 ] When K.D. moved into Raising Hope, she indicated that her most important goal was getting her children returned to her care.

K.D. was able to clearly articulate that she was aware that parts of her parenting and lifestyle had caused risk to her children and she was in the program to improve her situation in order to have her children returned to her care and remain in a healthy environment. One of the first things K.D. did was to seek help from her family physician for her anxiety and depression. Her physician prescribed medication for these conditions. In addition, K.D. was connected with Dr. McKay-McNabb, a psychologist who works with Raising Hope, who provided one-on-one counselling for her. [ 16 ] Ms.

Rasmussen and her staff identified two main risk areas for K.D.: addictions and parenting. [ 17 ] Raising Hope has an Addiction Worker from Alcohol and Drug Services who worked with K.D. in both group sessions and individual counselling. An assessment plan determined that K.D. would benefit from attending two different groups at Alcohol and Drug Services, namely Discovery Group and Ready for Change. She has been attending these two groups. In February, K.D. registered to attend a day treatment program for 30 days.

In addition, K.D. has been attending a Narcotic Anonymous meetings at Raising Hope and in the community. [ 18 ] In terms of parenting supports, K.D. attends a Positive Parenting group on Thursdays at Raising Hope and has received one-on- one parenting sessions from a case worker in her apartment. Since being at Raising Hope: K.H. has received musical therapy; N.H. is up-to-date on all of her immunization shots; and all of the children are being provided proper dental care. The physician, Dr. McKay- McNabb, provides proper health care for the children and for K.D. [ 19 ] Ms.

Rasmussen testified that in the event that K.D. and N.G.H. are sentenced to a period of incarceration for the offences before the court, the three children will have to be apprehended and placed back into foster care. Neither K.D. or N.G.H. were able to suggest a family placement for their children if they are incarcerated. [ 20 ] K.D. has attended 97 groups and 48 individual contacts since being in the program. She has also taken

part in programming offered outside of Raising Hope. Ms. Rasmussen testified that K.D. has above-average attendance at programming. K.D.’s apartment is clean and safe and she feeds and properly provides for her children. K.D. has been able to develop a routine whereby her eldest daughter, R.D., is up and off to school every morning at a local school. [ 21 ] Ms. Rasmussen testified that K.D. may remain at Raising Hope for as long as she wants. K.D. has provided no indication that she wishes to leave Raising Hope. [ 22 ] Ms.

Rasmussen testified that in October 2019, N.G.H. was deemed safe by a child protection worker to visit K.D. and N.H. at Raising Hope. Initially, these visits were supervised. That is no longer the case. In November 2019 the other two children, K.H. and R.D. were returned to K.D.’s care and N.G.H. was permitted to visit them as well. Ms. Rasmussen testified that N.G.H. comes to Raising Hope almost to daily to see his family. He usually arrives later in the afternoon after K.D. has completed her programming and stays until 9 or 10 p.m. when visiting hours are over. Ms.

Rasmussen has personally observed N.G.H. interact with K.H. and N.H. When K.H. saw his father, he was happy and displayed a big smile and ran to N.G.H. KH. climbed on N.G.H. and hugged him. The two played and joked together. K.H. was expressing happiness to be with his father. Ms. Rasmussen also observed N.G.H. spontaneously get up, put on protective gloves and begin to apply eczema medication to K.H. N.G.H. did this properly and with ease. In addition, Ms. Rasmussen has observed N.G.H. help out in K.D.’s apartment, cooking meals, doing dishes and interacting positively with the children. Lastly, Ms.

Rasmussen testified that N.G.H. has never appeared to be intoxicated when visiting at Raising Hope, he has never been confrontational with staff, and there has never been a need to intervene in any kind of negative interaction in K.D.’s apartment either with her or with the children. [ 23 ] On cross-examination, Ms. Rasmussen admitted that Raising Hope is not a mandatory program. Women residents can leave the program. However, K.D. would have to talk to her child protection worker before she could leave with the children.

A child protection worker could intervene, if it was determined that it was not appropriate for K.D. to leave Raising Hope with her children. An intervention could mean making other arrangements for her to leave with the children or result in an apprehension of the children.

The evidence of Danielle Hintz [ 24 ] Danielle Hintz is a child protection worker employed by the Ministry of Social Services. She is assigned to work at Raising Hope four days a week. Her role is to maintain child safety and family needs. She provides day to day support to help maintain her clients. Ms. Hintz has been working with K.D. since July 2019. She sees K.D. three to four times per month and makes sure her needs are met. This includes ensuring K.D. takes advantage of programming, including seeing an additions counsellor, a psychologist and a doctor. At least once per month Ms.

Hintz is in K.D.’s s apartment seeing her and the children. [ 25 ] When K.D. moved into Raising Hope, she was pregnant and sober. However, she had had problems with substance abuse in the past. Ms. Hintz was also aware that K.D. had two other children who were in emergency care. Initially K.D. was permitted access to her two eldest children through supervised visits. Visits increased gradually from two times a week to more often. In September 2019, N.G.H. began visiting the children as well, at Raising Hope. On November 16, 2019, K.H. and R.D were permitted to live with K.D. in her apartment at Raising Hope.

There is currently an active child protection file. Typically an active child protection file is kept open for three to four months following the child’s reunification, in order to access the child’s safety and ensure that the reunification is successful. No concerns have arisen since K.D. has been at Raising Hope. In the event that K.D. and N.G.H. are incarcerated, Ms. Hintz testified that the children would be apprehended by social services and placed in emergency care, likely at a group home. It is not certain that the children would remain together. [ 26 ] Ms. Hintz met N.G.H. in September 2019.

At that time, N.G.H. indicated that he was struggling with anxiety and his mental health. Ms. Hintz provided N.G.H. with information on some programs that might be of assistance to him. Eventually it was decided that N.G.H. would attend Tending the Fire, which is a weekly men’s group. Ms. Hintz confirmed that N.G.H. has been attending this group for approximately four months. He is reported to be quiet, respectful and helpful in the group. N.G.H. and K.D. are both attending a healthy-relationships program through Eagle Heart Centre. In addition, N.G.H. is attending addiction services programming. [ 27 ] Ms.

Hintz testified that over time N.G.H. has gained confidence in his parenting role. She further testified that the family appears to be working well together and that often N.G.H. is the one cooking or getting the children ready. There is evidence of a bonded relationship between N.G.H. and the children. He checks in at the office at Raising Hope each time he visits. [ 28 ] On cross-examination Ms. Hintz admitted that K.D. is free to leave Raising Hope if she wants to. However, if K.D. decided to leave Raising Hope with the children, Ms.

Hintz testified she would be involved and would make sure there was safe housing for the children and that K.D. had proper supports in place. K.D. Pre-Sentence Report [ 29 ] K.D. is an individual of Indigenous ancestry. She is 28 years of age and was born in Calgary, Alberta. Her father belongs to the Piapot First Nation, situated in Saskatchewan, and her mother belongs to Tsawout First Nation, in British Columbia. Her parents did not maintain their relationship after K.D. was born. It appears that K.D. had little to do with her father who abused alcohol throughout her life and has never been a support for her.

K.D. resided in Calgary until she was fifteen years of age. During this time, she was either with her mother or in various foster homes. K.D. has one brother. However, they were placed in separate foster homes at a young age. Her brother now lives in Nanaimo, B.C. At age fifteen K.D. moved to Cupar, Saskatchewan with her mother. K.D. resided there until she was nineteen years old. K.D. then moved out, as she was expecting a child of her own (R.D.) with her then partner, R.S. K.D.’s mother abused alcohol and was involved in violent intimate partner relationships.

While in her mother’s care, K.D. witnessed alcoholism and abuse. K.D. was also a victim of sexual abuse, perpetrated by her mother’s boyfriends. In addition, K.D. indicates that while living with her mother her basic needs were not always met. At times she experienced hunger. While in foster care, K.D. was placed in non- Indigenous homes and schools and she experienced racism. [ 30 ] While K.D. did not attend residential schools, her maternal and paternal grandparents did. She does not know her paternal grandparents but states that there was a great impact on her maternal grandparents.

They both abused alcohol and her grandfather physically abused her grandmother. Her maternal grandfather passed away due to alcohol abuse. K.D.’s parents both grew up in foster care. [ 31 ] K.D. was in a four-year relationship with R.S. The relationship ended due to domestic violence. K.D. is not in contact with R.S.

[ 32 ] K.D. has been in a relationship with N.G.H. for over four years. Together they have two children, K.H and N.H. (nine months). As previously stated, N.G.H. is a step-father to K.D.’s child R.D. For some time prior to and after the offences before the court, both K.D. and N.G.H. were abusing alcohol. [ 33 ] K.D. is not in contact with many members of her family. Both her mother and father live in Calgary and both are in common-law relationships. It appears K.D. has a limited relationship with her mother.

K.D. indicates that she needs to work on her relationship with her mother as she holds grudges against her due to past experiences. N.G.H. Pre-Sentence Report & update from Danielle Hintz dated March 17, 2020 [ 34 ] N.G.H. is twenty-five years old and identifies as an Aboriginal man although he is not registered to a First Nation. He was born in Regina, Saskatchewan. His mother is from the Kinistin First Nation. His father is from Kawacatoose First Nation. His mother kept N.G.H. away from his father due to his “gang involvement”.

N.G.H. never met his father, who was murdered when N.G.H. was approximately eight years old . N.G.H. and his two younger siblings were raised by his mother and his stepfather in Regina, Saskatchewan. As a child, N.G.H. witnessed his mother struggling with her own depression. In addition, at times he witnessed his mother and stepfather argue with each other and abuse alcohol. [ 35 ] N.G.H. indicates he began drinking alcohol when he was about fifteen. Shortly thereafter he became an alcoholic.

N.G.H. states that he became an alcoholic at a young age due to drinking his mother’s alcohol to avoid her “getting drunk”. He also began to use marijuana around the same time. He dropped out of school when he was in Grade 9. N.G.H. stated he used marijuana almost every day until March 2019. He also used other drugs. When he was younger, N.G.H. “fell into the wrong crowd” but eventually stopped hanging out with these people in 2013, when he was about 18.

N.G.H. reports that he quit using illicit drugs in the summer of 2018 and has been sober since November 29, 2018 after he and K.D. made a promise to each other to quit drinking. [ 36 ] N.G.H. left his family’s home in 2016 to reside with K.D when he was twenty-two years old. However, he returned to that home after he was charged with the current offences. He remains in close contact with his mother. She is supportive of him and has encouraged him to maintain his current sobriety, take care of his mental health and maintain healthy relations with K.D. and the children.

As described above, N.G.H. has been seeing K.D. and the children since October 2019 at Raising Hope. Ms. Hintz reports that N.G.H. has taken on a primary parenting role. In addition, Ms. Hintz states “N.G.H. has parented extensively throughout this time and has been observed to maintain household duties, provide for the children’s needs, and displays a bonded relationship with his children”. [ 37 ] N.G.H. appears to have achieved and maintained his sobriety since November 2018, without any programming or formal support.

He advises that he attended Addiction Services several months ago and was informed that alcohol is a major problem in his life. N.G.H. is currently awaiting day treatment. He has attended a nine week anger management program facilitated at the Circle Project in Regina. In addition, he has recently taken steps to obtain his own residence after identifying that residing with his parents is unhealthy due to their struggles. [ 38 ] There are concerns that N.G.H. may have unresolved depression and anxiety issues. He has been taking medication to address these issues.

In addition, he recently attended two appointments with a registered psychologist, Laurel Phillips. Laurel Phillips reports that N.G.H. presents with symptoms indicating that he is suffering from depression and anxiety. Laurel Phillips also reports that N.G.H. advised that he experienced childhood traumatization and neglect. The Law [ 39 ] Sections 718 to 718.2 of the Criminal Code guide the court in determining the appropriate sentence for an offender. [ 40 ]

Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions with one or more of the objectives set out in that section. These objectives include: a. denouncing unlawful conduct; b. deterring the offender and other persons from committing offences;

c. separating offenders from society if necessary; d. rehabilitating offenders; e. providing reparations for harm done to victims or the community; and f. promoting a sense of responsibility in offenders. The weight to be placed on each of the objectives listed in

section 718 is determined by the circumstances of the offence and the offender. [ 41 ]

Section 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 42 ] The fundamental principle of sentencing is set out in

section 718.1 of the Criminal Code which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 43 ]

Section 718.2 of the Criminal Code lists a number of other sentencing principles the court must take into consideration when fashioning a sentence. These factors include consideration of aggravating and mitigating circumstances, as well as the principles of parity, totality, and restraint.

Section 718.2 reads in part as follows:

Section 718.2 A court that imposes sentence shall also take into consideration the following principles: (

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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances; (

b) 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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 44 ] The availability of a conditional sentence order is governed by

section 742.1 of the Criminal Code . It provides as follows: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, 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 conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of 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; (

b) the offence is not an offence punishable by a minimum term of imprisonment; [ 45 ] In R v Guimond , 2010 MBPC 33 at para 11 , 254 Man R (2d) 68 Judge Martin summarized the case law dealing with sentencing on the offence of failing to provide the necessities of life:

[11] Case law dealing with the offence of failing to provide the necessities of life clearly indicates that when crafting a sentence, thesentencing court should place particular emphasis on the objectives of denunciation and deterrence. The ultimate sentence used to reflectthat objective obviously varies in accordance with the seriousness of the circumstances of the offence, the degree of moralblameworthiness of the offender and the particular circumstances of that offender.

The duration of the offending conduct, the reasonsbehind that conduct, the degree of remorse or indifference of the offender, the nature of the injury to the victim and the age of the victimare factors that are often taken into consideration for both the length and type of sentence. Case law is clear however that the sentenceshould generally be a custodial one, whether incarceratory or community based.

A review of the case law also suggests a notabletendency toward an increase in the length of sentences which is undoubtably commensurate with the 2005 legislative amendment (Bill C-2) that increased the maximum length of the sentence from 2 years to 5 years.

All in all however, given the wide range of conduct thatcan give rise to an offence failing to provide the necessities of life there is obviously a wide range of sentences, as is apparent in the casesprovided to the Court by counsel. [46] The sentencing options of individuals who failing to provide the necessities of life to children ranges from several years ofincarceration to the imposition of conditional sentence orders. [47] In R v E.T. and P.O., 2012 SKQB 169, 394 Sask R 113 Mr. Justice Gerein imposed a three-year jail sentence for two Indigenousindividuals (a grandfather and his wife) in their 50s.

The Court described the conduct of each of the accused towards a two-year oldgranddaughter placed in the grandfather’s care as despicable, deplorable and horrendous child abuse. When the child was apprehendedby protection workers, she was very thin, quiet, timid, withdrawn and scared. The child was described as a prisoner of the accused andtotally at their mercy, which was totally lacking towards her. She was malnourished. The child was frequently struck on the head andoften kept in a dark basement. Neither accused took responsibility for their actions.

The Court indicated that the accused were mature inboth years and experience and yet they acted with extreme cruelty. They must have been aware of the harm being done to the child, butdeclined to help. The Court determined that the accused possessed normal parenting skills. The Court found that it was very telling thattwo other children in the home lived normal lives. The Court concluded the child was singled out for mistreatment and that this conducthad no connection to the accused’s Aboriginal heritage.

Finally, the Court determined that any Gladue considerations (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] must take a secondary position to denunciation and deterrence as mandated by section718.01 of the Criminal Code. [48] In R v A.N., 2016 BCPC 246 the Court imposed a one-year jail sentence and two years probation for A.N., who pled guilty to theoffence of failing to provide the necessities of life to her child B.N. from April 7, 2014 to June 14, 2014. B.N.’s biological father was notpresent for B.N.’s birth and was not involved in any way in his subsequent care.

When B.N. was six months old, A.N. purchased arestaurant. She employed various family members to help run the restaurant. A.N. worked long hours seven days a week in the kitchenand pantry area. B.N. was always at the restaurant with her. Sometimes he would be in the kitchen area and other times he would beplaced in a storage room. Despite being employed at the restaurant, A.N.’s family did not help with B.N.’s care. B.N. had regularmedical 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.

About a month or two before B.N. was taken to a hospital A.N. told a social worker that she had the support of her family. On June 14,2014, A.N. brought B.N. age two, to a hospital. B.N. was in pre-cardiac arrest, was malnourished and would have died had he notreceived immediate medical treatment. A.N. left the hospital after she dropped off B.N. She did not return to the hospital. B.N. wasremoved from his mother’s care on June 16, 2014. B.N. spent over a month in hospital. The hospital staff determined that B.N. hadsuffered from months of insufficient feeding.

The Court determined that A.N. having failed to provide B.N. with appropriate nutritionand care over several months, the near-death state B.N. was in when he was brought to hospital, A.N. being in a position of trust towardB.N., and having lied to the social worker about having support of her family, were all aggravating factors.

The Court found severalmitigating factors including the fact that A.N. pleaded guilty to the offence, showed great remorse, was a young first-time offender, andhad a difficult childhood in which she had experienced emotional neglect. [49] In R v (J.(S.)), 2015 ONCA 97, 320 CCC (3d) 524 [J.(S.)] the Ontario Court of Appeal upheld the trial judge’s decision toconvict the appellant mother and father of failing to provide the necessities of life to their three-year-old child, as well as the decision toimpose six months’ imprisonment.

In J.(S.), an infant at the age of eight months was sent to India to live with his grandparents. Hismother was pregnant with a second child. While H. was in India, a family friend visited H. about once a week at the request of theparents. The friend reported to the parents that H. looked slim and weak. When H. was two years and 10 months old the family friendbrought him back to Canada. After giving H. a bath, the mother was concerned about his health and took him to a doctor. The doctorrequested a stool sample from the child. The mother did not collect a stool sample.

About one month later, the mother took H. to adifferent doctor. This doctor observed that H. was lethargic and not eating. A month after this, while the mother was seeing the seconddoctor for a prenatal visit, she told the doctor that H. had fallen and hurt his skin. The doctor prescribed a skin cream and advised themother to bring H. in for a checkup. The mother did not. Later, H. suffered a seizure and was taken by ambulance to a hospital, wherehe was observed to be malnourished and anemic. H.’s vitamin C levels were consistent with scurvy, he had three open wounds and scarsall over his body.

The doctors were unable to date the injuries or determine causation. The trial judge considered a conditional sentenceorder. However, he was of the view that denunciation required a more severe sentence to show society’s disapproval of the offender’sconduct and, more particularly, society’s response to child neglect. [50] In R v O.(C.G.), 2012 BCCA 129, O. a mother of three children of her own agreed to take her three- year-old niece under her care

in Surrey, B.C., as her sister was having difficulties raising her children in Saskatchewan. Things did not go well. Within a month O. told a government worker she was having difficulty caring for her niece. O. was told to come to a Child Support Centre to talk about it and a ride would be arranged for her. O. did not attend the centre. A few weeks later O. shook her niece while in a state of frustration causing serious injury to her. O. also placed her niece in bath water that was so hot, it caused extensive burns to her entire body. O. shook her niece a second time.

O.’s actions had a devastating and lifelong impact on her niece. The child is now eight years old and lives in Saskatchewan in a foster home. She has largely recovered from the burns, but she suffered a severe brain injury as a result of the shaking. The child cannot walk or speak. She is fed intravenously through a tube. She is prone to seizures which are potentially life threatening. She is in a quadriplegic state and she will never function independently. [ 51 ] O. pled guilty to aggravated assault and failing to provide the necessities of life to her niece.

O.’s own children were apprehended when her niece was injured. O. expressed remorse for her actions. She did not have a criminal record. The sentencing judge identified several Gladue factors including childhood exposure to parental drinking, neglect and sexual abuse. O. met the father of her children when she was 16 years of age. They eventually settled in British Columbia. The father of her children was both physically and emotionally abusive towards her. O. no longer lived with the father of her children. She lived on social assistance in a subsidized housing complex in Surrey.

The sentencing judge concluded that the factors of poverty, isolation and violence were significant factors in O’s life. The sentencing judge concluded that O.’s “unique circumstances are inextricably interwoven with the offences”. O. was sentenced to a conditional sentence order of two years less a day followed by three years of probation. The Crown appealed the sentence on the basis it did not give sufficient weight to the sentencing principles of deterrence and denunciation. The majority of British Columbia Court of Appeal determined that the sentence imposed was not fit. However, they dismissed the appeal.

The majority decided not to disrupt the conditional sentence order on the basis that, in light of the delay, it would not be in the interests of justice to change the direction of the sentencing requirements that had been placed upon O. and which had been acted upon. [ 52 ] In R v Thompson , 2012 ONSC 4346 the accused was sentenced to a six-month conditional sentence order and placed on probation for three years. Ms. Thompson age 29, pled guilty to charges of failing to provide the necessaries of life to three of her four children. I n June 2008, Ms. Thompson adopted a raw vegan diet for herself and her children.

The children’s feeding was highly regimented and portion size was strictly controlled by Ms. Thompson. She did not seek medical advice on the appropriateness of the raw vegan diet for infants and small children. Further, the children did not have a family doctor, nor did they receive immunizations. In June 2010, Ms. Thompson sought medical assistance for the purpose of completing government dietary forms in support of her application for additional social assistance benefits. She was referred to a pediatrician but refused to attend.

The Children's Aid Society became involved and the children were admitted to the Hospital for Sick Children in Toronto with diagnoses of severe malnutrition, osteopenia and rickets. Two of the children were discharged from the hospital's "Failure to Thrive Clinic" in June 2011 and a third child was discharged in September 2011. The children were placed by the Children's Aid Society in the care of Ms. Thompson's mother. Ms. Thompson gave birth to another child in March 2011 and that child was also placed in the care of Ms. Thompson’s mother. [ 53 ] After her arrest, Ms.

Thompson undertook rehabilitative efforts offered by public health authorities. In May 2012, Ms. Thompson was referred for psychological evaluation. It was determined that Ms. Thompson had a history of maladaptive eating behaviours and possessed below average cognitive capabilities. She was under high levels of stress that caused her significant anxiety. She had difficulties related to social interactions. She possessed weak skills when dealing with social stressors and she was unlikely to be able to solve these problems effectively.

Several therapeutic recommendations were made which included: individual psychotherapy; parenting skills training; regular consultation with a family doctor and dietician; anger management therapy and social skills training; participation in volunteer or community programs; continued supervision by the Children's Aid Society during visits with her children; and educational pursuits with the goal of becoming financially independent. The sentencing judge took into account the relative youth of Ms. Thompson and the fact that she pled guilty and took responsibility for her conduct.

In addition, the sentencing judge took into account the efforts taken by Ms. Thompson to educate and rehabilitate herself, to take

part in counselling on parenting and nutrition, and her low risk to re-offend. Aggravating Circumstances [ 54 ] I consider the following facts to be aggravating circumstances in this case:

i) two children age 16 months and six years of age were the victims of these crimes. Both were reliant upon their parents for their nourishment, cleanliness, general and medical care and, in the case of R.D., her education; ii) the youngest child, K.H., was located lying in a crib with a heavy jacket on that was too warm for the season. The crib was filthy, as was K.H. K.H. was soaking wet and smelled of urine and sweat. K.H.’s skin was extremely dry, red and sore in many places. K.H. had multiple bruises on both sides of his forehead. The back of K.H.’s head was flat.

He also had a burn the size and shape of a quarter on his abdomen. K.H. had severe widespread eczema that was poorly controlled and which had left scarring and lesions. K.H. was severely constipated. He was dangerously dehydrated when he was admitted to hospital and was very hungry. K.H. was behind his developmental milestones, was unvaccinated and had significant tooth decay;

iii) R.D., age six was dirty and unkempt. She was scratching her arms and head. R.D. had a rash on her arms which was also from severe eczema. R.D. said she not been attending school due to bullying about her rash; iv) the neglect of the two children took place over a lengthy period of time;

v) both of the offending parents, N.G.H. and K.D., had been abusing alcohol prior to and at the time of the apprehension of the children. They had not taken the children to a doctor due to their own alcohol use, and fear of having the children apprehended; vi) R.D. age six, had not attended school for five or six months because the eczema on her face was so bad that the accused were concerned she would be bullied; vii) pursuant to

section 718.01 and paragraphs 718.2(a)(ii.1) and (iii), I must treat the fact that this offence involved both a breach of trust and the abuse of children under the age of 18 years as aggravating factors and that I must give primary consideration to the objectives of denunciation and deterrence of such conduct. Mitigating Circumstances [ 55 ] I consider the following to be mitigating circumstances:

i) both offenders entered guilty pleas to these offences prior to a preliminary hearing or trial; ii) K.D. does not have a criminal record; iii) when the children were apprehended, K.D. was getting about on crutches and suffered from post – partum depression; iv) both offenders have offered sincere expressions of remorse;

v) both offenders have experienced difficult circumstances in their upbringing and family backgrounds which are significant factors to consider, and I have done so separately under Gladue factors, below; vi) both offenders have ceased using drugs and alcohol; vii) both offenders have availed themselves of rehabilitative programming; viii) K.D. has been particularly committed to changing her life and parenting skills for the better by living at Raising Hope and taking advantage of the numerous programs and counseling provided there. This has permitted her to safely reunify with her children.

K.D. is getting professional help for her anxiety and depression and is involved in addictions programming and acquiring parenting skills; ix) while N.G.H. has taken

part in some rehabilitative programming such as attending a weekly men’s group and, together with K.D., has attended a Healthy Relationships program, it is unclear whether or not he is taking active steps to get professional help for his substance abuse and mental health issues. However, he has taken some steps to better himself and is permitted to spend time with K.D. and the children at Raising Hope. Gladue Factors [ 56 ] In this case I must also consider

section 718.2 (

e) of the Criminal Code as both offenders are of Aboriginal ancestry. The Supreme Court of Canada has provided two foundational decisions on

section 718.2 in Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] . In Gladue the Supreme Court first discussed the application of

section 718.2 (

e) and in particular says at para 36

that:

Section 781.2(

e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable in the circumstance for all offenders, “with particular attention to the circumstance of aboriginal offenders”. The broad role of the provisions is clear. As a general principle, s. 718.2(

e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [ 57 ] K.D.’s and N.G.H.’s primary mitigating factors are those arising from their own personal history, which involve family dysfunction including alcohol abuse, mental health problems and in the case of K.D. domestic and sexual violence. Many of these factors are unique to each of their First Nations ancestry and are important in this case. [ 58 ] In R v Gamble , 2020 SKQB 16 at paras 45 - 53 Mr. Justice Danyliuk provided a helpful

summary of the case law interpreting

section 718.2 (

e) as follows: [45]

Section 718.2 (

e) of the Criminal Code mandates a consideration of these factors. Of necessity case law interpreting this

section must also be reviewed. There are many cases in this area but the foundational ones are R v Gladue and R v Ipeelee . As well I have considered authorities from this province, notably the relatively recent Court of Appeal decisions in R v Chanalquay , 2015 SKCA 141 , [2016] 4 WWR 242 , R v Slippery , 2015 SKCA 149 , 472 Sask R 181 , R v Clarke , 2016 SKCA 80 , 338 CCC (3d) 83 , R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 , and R v Delorme , 2017 SKCA 3 . [46] It cannot be ignored that Parliament amended the Criminal Code to include s. 718.2 (

e) in large measure out of concern for the high incarceration rates of First Nations people, especially when measured against the general First Nations population in Canada. This subsection is aimed at having judges take a somewhat different view of sentencing in the cases where it was warranted, a view that was more restorative in nature. It was hoped that this approach would, at least in part, address the issue of the overrepresentation of First Nations people within our prison system. [47] Gladue and the other cases cited all interpreted s. 718.2 (e). It is not a "get out of jail free" card.

Nor is it an automatic discount to be applied to the sentences of First Nations offenders. Rather, it is a direction that sentencing judges must consider additional factors when crafting a fit sentence for an individual offender, particularly one of First Nations heritage. There are two main additional factors to consider. Either, or both, can have an effect on what constitutes a fit and just sentence for a particular offender. In some respects, Gladue and s. 718.2(

e) are just refinements of the maxim: "Sentence the offender, not the offence". [48] First, sentencing judges must consider systemic, or widespread, factors that may have impacted upon the offender presently before the court. These factors may illuminate the degree to which an Aboriginal offender has moral blameworthiness for the crimes he or she has committed — in other words, the degree of responsibility of the offender. This does not mean that the socio-economic background of an offender is such that his or her moral blameworthiness is likely to be eliminated entirely.

It is hard to imagine circumstances where that background will vitiate voluntariness. But that same personal background, in some cases, will operate to create a milieu wherein the offender does not have the same chances for success as others do. As was said in Ipeelee at para 73 , ". . . the reality is that their constrained circumstances may diminish their moral culpability". [49] I also hasten to add that the so-called " Gladue analysis" is not the be-all and end-all. It is one of a group of factors that can affect the level of moral blameworthiness of an offender.

Clearly, it is incumbent on sentencing judges to consider all of those factors in a holistic fashion. While the Gladue analysis is mandated by s. 718.2(e), it might be considered to be one of numerous components falling under s. 718.1 : "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Many things might go into the s. 718.1 consideration. These will include, but not be limited to, what is mandated by s. 718.2(e).

See Chanalquay , para 40 . [50] Second, sentencing judges have to consider alternative types of sentencing procedures or sanctions (other than incarceration) that might be best for this particular offender, resulting from his or her First Nations background (which will encompass culture, traditions, and heritage). This should not be conflated with the first consideration (systemic factors). But the consideration of alternate sentencing modes goes directly to the type of sentence imposed. As Chief Justice Richards said at para. 43 of Slippery : 43 ...

The second and ultimately most important set of issues—the types of sanctions—may also affect the bottom line of a sentence. While not relating to the level of an offender's culpability, sentencing judges must recognize that different or alternative restorative justice-type sanctions may effectively achieve necessary sentencing objectives in a particular community ( Ipeelee at para 74 ). [51] Here, the defence suggests that Mr. Gamble's background goes to reduce his moral blameworthiness for these offences. I agree that it is not incumbent upon Mr.

Gamble to establish any direct causal link between that background and any of the offences in question. This is not required: see Ipeelee at para 83 and Slippery at paras 45 and 46 . [52] I find myself in complete agreement with Chief Justice Richards' comments in Slippery when he says "These generalities are

obviously somewhat difficult to operationalize in the context of the concrete realities of any particular on-the-ground sentencing decision" (para. 46). The discussion of the effect of systemic factors on sentencing is, frankly, far easier to conduct in the abstract. It is more difficult to apply to actual offences, particularly when the offences are serious in nature. [53] However, while the importance of Gladue and Ipeelee cannot be gainsaid, neither should they be overemphasized. They do not create an entire new system of sentencing.

The Criminal Code , and the cases interpreting same, simply make it incumbent upon sentencing judges to give genuine and meaningful consideration to s. 718.2(e), just as judges must give genuine and meaningful consideration to the other sentencing principles set out in the Criminal Code and in case law. The type of crime and its effects on the victims remain to be properly considered as well.

Chief Justice Richards said this in Chanalquay at paras 42 and 43 : 42 Thus, while s. 718.2(e), as interpreted by Gladue and Ipeelee , mandates a particular kind of analysis when sentencing an Aboriginal offender, it does not create a wholly new sentencing paradigm. Sentencing judges must attempt to give meaningful effect to the remedial purpose of s. 718.2(

e) and must be highly alert to the ongoing problem represented by the troubling incarceration rates of Aboriginal people. But, the ultimate sentencing objective is clear: considering all of the relevant sentencing principles, including s. 718.2(e), what is a fit sentence for the offender given his or her circumstances, the nature of the crime, the situation of the victim, and the interests of the community? ( Gladue at para 75 .) 43 I note that this means a sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue.

He or she must also, to the extent reasonably possible, attempt to understand the relevant dynamics of the community and the circumstances of the victim. After all, the victims of crimes committed by Aboriginal offenders are all too frequently other Aboriginals, often ones with precisely the same Gladue backgrounds as the offenders. They must not be overlooked. In order to understand all of this, it may sometimes be necessary for a trial judge to demand more than is typically provided in this province by way of a pre-sentence report.

Analysis [ 59 ] Both K.D. and N.G.H. are of First Nation ancestry, whose early lives were marked by neglect and substance abuse. In addition, K.D. witnessed and experienced violence. The persons who would have been expected to provide K.D. and N.G.H. with the most guidance, their parents, had their own problems and at times they abdicated this role. K.D. certainly expressed this thought in her statement to the court, wherein she stated, “ I wish to be the person I needed growing up. I want my children to know there’s good things in life and not just trauma.

I wish to be everything they need and someone they can trust and look up to.” [ 60 ] K.D. was raised by her mother, who abused alcohol and was involved in violent intimate partner relationships. While in her mother’s care, K.D. witnessed alcoholism and violence. In addition, K.D. was sexually assaulted by her mother’s boyfriends. While in her mother’s care K.D. also experienced hunger. When K.D. was not living with her mother she was placed in various foster homes. She moved out of her mother’s home when she was 19 and expecting her first child.

It appears that the legacy of residential schools may have had a negative effect on K.D. Her maternal grandparents attended residential schools. They both abused alcohol, and her grandfather physically abused her grandmother. Her grandfather passed away due to alcohol abuse. K.D.’s parents both grew up in foster care. [ 61 ] N.G.H. was raised by his mother and his stepfather. His mother kept him away from his biological father, who was involved in gang life and was murdered when N.G.H. was approximately eight years old. As a child, N.G.H. witnessed his mother struggling with depression.

In addition, at times he witnessed his mother and stepfather argue with each other and abuse alcohol. N.G.H. began drinking alcohol when he was about 15 years of age. He became an alcoholic shortly thereafter. He dropped out of school in grade 9, and for a time fell in with the wrong crowd. He used marijuana and other drugs.

It appears he has very limited experience working. [ 62 ] This is the background in which K.D. and N.G.H. were raised, and as their sentencing judge I have a duty to consider it. [ 63 ] In this case, I am firstly satisfied that the proper foundation for a consideration of the Gladue principles and of

section 718.2(

e) has been provided, and that I am in a position to decide on sentence. Secondly, I am satisfied that K.D.’s and N.G.H.’s moral blameworthiness is reduced or diminished as a result of these factors. I am of the view that K.D. and N.G.H.’s personal backgrounds, as set out above, have played a role in each of them coming before the court on the charges of failing in their duty to provide the necessities of life to their children. Both K.D. and N.G.H. were abusing alcohol to the detriment of their own children.

Their use of alcohol clouded their judgement with respect to the basic care they provided to their children including properly feeding them, attending to their medical needs and ensuring R.H. went to school. I also attribute K.D.’s and N.G.H.’s poor coping and parenting skills in part to mental health issues which they were each experiencing at the time of the offences. Moreover, it appears K.D.’s and N.G.H.’s substance abuse, mental health problems, poor coping and parenting skills can be attributed in part to their own difficult childhoods and the lack of parenting they each received.

Even to this day, both K.D. and N.G.H. appear to lack sufficient extended family support to help raise their children. Fortunately, they both have stopped abusing substances, are working on themselves and are improving their parenting skills under the watchful eye and safe oversight of the Raising Hope program.

[ 64 ] I am of the view that the Raising Hope program provides the necessary wrap-around support that K.D. and, to a somewhat lesser extent, N.G.H. so clearly need. Raising Hope provides a safe, supervised and supportive place to live for K.D. and the three children. It also provides much more. K.D. and her children are seeing a physician for their health care needs. K.D. also is seeing a psychologist and addictions worker. She is taking

part in addictions programming, Narcotic Anonymous meetings, parenting classes, positive thinking and attending Healthy Relationships programming with N.G.H. Both K.D. and N.G.H. are sober and are successfully parenting their children. They spend time together with their children almost every day of the week in K.D.’s apartment at Raising Hope. K.D. has no plans to leave Raising Hope.

Raising Hope will not require K.D. and the children to leave the apartment building and the programming offered any time in the near future. [ 65 ] As a result of the unique, holistic, rehabilitative approach offered by Raising Hope, the mitigating factors I have previously mentioned and the very positive real changes made by K.D. and N.G.H., I am of the view that the real, measurable progress that K.D. and N.G.H. have both made as individuals and as parents to their children since being charged with these offences will take a dramatic step backwards should I impose an actual jail sentence.

Put another way, in this case I recognize that an alternative restorative-type sanction will effectively achieve all the necessary sentencing objectives. In particular, I am of the view that the imposition of a conditional sentence order followed by probation is a just and appropriate sanction in this case and will adequately address all of the principles of sentencing including denunciation and deterrence. In addition, I am of the view that the imposition of a conditional sentence order followed by probation addresses the ongoing problem of the overincarceration of Aboriginal offenders.

Also, given the existence of the current COVID-19 pandemic and the health risks posed to individuals who gather in groups, I consider the imposition of a conditional sentence order followed by probation to be a better, safer alternative to incarceration. [ 66 ] The principles of denunciation and deterrence warrant a period of imprisonment for these offences.

However, I am of the view that the safety of the community would not be endangered by K.D. and N.G.H. serving their sentence in the community and that a conditional sentence in this case would be consistent with the fundamental purpose and principles of sentencing. Conclusion [ 67 ] Accordingly, I sentence K.D. to be placed on a 16 month conditional sentence order followed by two years of probation.

The terms of the conditional sentence order are as follows: * Keep the peace and be of good behaviour; * Appear before the court when required to do so by the court; * Report to a supervisor by 4 p.m. today by telephone and thereafter when required and in the manner directed by the supervisor or designate; * Remain within the province of Saskatchewan unless written permission to travel outside the province is obtained from the court or supervisor; * Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation; * Live at Raising Hope an apartment located in Regina, Saskatchewan and not change that residence without the prior written permission of your supervisor or designate or the court; * For the first twelve months of this order, stay inside your residence 24 hours a day unless you have the written permission of your supervisor or designate or the court to be elsewhere, and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer checking the residence and curfew conditions of this order; * For the last four months of this order, stay inside your residence from 10 p.m. each night to 7 a.m. the next morning, unless you have the prior written permission of your supervisor or designate or the court to be elsewhere, and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order ; * Do not possess or consume alcohol, marijuana or drugs that have not been prescribed for you by a medical doctor and do not enter or be in any place of which the main purpose is the sale of alcohol or marijuana, such as bars, liquor stores or marijuana stores; * Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor; * Participate in assessment and complete programming for personal counselling as told to do so by your supervisor; * See a medical doctor, psychiatrist, and/or psychologist as told to do so by your supervisor, follow the directions as to appointments, counselling, and treatment and authorize the release of information about appointment times and treatment as told to do so by your supervisor.

[ 68 ] The conditional sentence order will be followed by a two-year period of probation, the conditions of which are as follows: * Keep the peace and be of good behaviour; * Appear before the court when required to do so by the court; * Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; * Report to a probation officer within two working days of the end of your conditional sentence order and thereafter when required and in the manner directed by the probation officer; * Live at a residence approved by your probation officer and not change that address without the prior written permission of your probation officer or the court; * For the first 12 months of this order, stay inside your residence from 10:30 p.m. each night to 7 a.m. the next morning, unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order; * Not to possess or consume alcohol, marijuana or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol or marijuana, such as bars, liquor stores or marijuana stores; * Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor; * Participate in assessment and complete programming for personal counselling as told to do so by your supervisor. [ 69 ] The situation of N.G.H. is somewhat different from K.D.

He has a prior criminal record and he entered guilty pleas to two additional offences. I am of the view that the appropriate sentence for N.G.H. is a conditional sentence order for 20 months followed by two years of probation.

The terms of the conditional sentence order are as follows: * Keep the peace and be of good behaviour; * Appear before the court when required to do so by the court; * Report to a supervisor by 4 p.m. today by telephone and thereafter when required and in the manner directed by the supervisor or designate; * Remain within the province of Saskatchewan unless written permission to travel outside the province is obtained from the court or supervisor; * Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation; * Live at an approved residence and not change that residence without the prior written permission of your supervisor or designate or the court; * For the first 12 months of this order, stay inside your residence 24 hours a day unless you have the written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order; * For the last eight months of this order, stay inside your residence from 10 p.m. each night to 7 a.m. the next morning, unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order; * Not to possess or consume alcohol, marijuana or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol or marijuana, such as bars, liquor stores or marijuana stores; * Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor; * Participate in assessment and complete programming for personal counselling as told to do so by your supervisor; * See a medical doctor, psychiatrist, and/or psychologist as told to do so by your supervisor, follow the directions as to appointments, counselling, treatment and prescriptions, and authorize the release of information about appointment times and treatment as told to do so by your supervisor; * Complete 100 hours of community service work by December 30, 2020, as told to do so by your supervisor;

* Seek and maintain employment or educational programming as directed by your supervisor. [ 70 ] The conditional sentence order will be followed by a two year period of probation, the conditions of which are as follows: * Keep the peace and be of good behaviour; * Appear before the court when required to do so by the court; * Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; * Report to a probation officer within two working days of the end of your conditional sentence order and thereafter when required and in the manner directed by the probation officer; * Live at a residence approved by your probation officer and not change that address without the prior written permission of your probation officer or the court; * For the first 12 months of this order, stay inside your residence from 10:30 p.m. each night to 7 a.m. the next morning, unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order; * Not to possess or consume alcohol, marijuana or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol or marijuana, such as bars, liquor stores or marijuana stores; * Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor; * Participate in assessment and complete programming for personal counselling as told to do so by your supervisor. _______________________ M.

Hinds, J