R. v. Geraldizo Date:, 2016 BCPC 484

Citation: R. v. Geraldizo Date: 20160428 2016 BCPC 484 File No: 60077-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MARIJOY GERALDIZO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: G. Nelson Counsel for the Accused: J. Tarnow Place of Hearing: Richmond , B.C. Date of Hearing: April 22, 2016 Date of Judgment: April 28, 2016

[ 1 ] Th e Accused has pled guilty to disposing of the dead body of a child with intent to conceal the fact that she had been delivered of it, contrary to

Section 243 of the Criminal Code . [ 2 ] The Crown is seeking a custodial sentence of 6 to 8 months served in the community by way of a conditional sentence order, followed by 16 to 18 months of probation, for a total of 24 months supervision in the community. [ 3 ] The Accused seeks a conditional discharge with 24 to 36 months of probation. [ 4 ] In coming to my decision I have considered the pre-sentence report and the forensic psychiatric report prepared for this sentencing, the sentencing materials submitted by counsel and their submissions.

I have also considered all of the case authorities presented to me by counsel. Circumstances of the Offence [ 5 ] Sometime between 11:00 p.m. and midnight on July 3, 2015, while sitting on the toilet, the Accused noted that her water had broken and blood was coming out from her. She felt the need to lie down and transferred to the bathtub where she gave birth. She held the baby to her chest and noted the baby to breathe or shudder one time and then stop breathing. She used scissors to cut the umbilical cord, wrapped the baby in plastic and disposed of the baby’s remains. She returned to the bed and slept.

The Accused’s mother Josephina, came home after working a late shift and lay on the bed beside the Accused but did not notice anything awry until the morning when the Accused’s 3 year old son came to the bed, moved between them and asked why the bed was so wet. Josephina then noticed that the Accused’s lower body was covered in blood and that there was a large amount of blood on the bed. Josephina asked the Accused what had happened and whether she was pregnant, which the Accused denied. Josephina told the Accused to get out of bed as she and the sheets were wet with blood.

While the Accused was in the shower, her sister found a mass of human tissue, later determined to be placenta, on the floor. Josephina put the placenta in a plastic bag and called a taxi to take her and the Accused to the hospital. The Accused initially denied being pregnant but upon further questioning, she admitted to having a baby and disposing of it in the recycling waste bin. Police found the baby at approximately 12:10 p.m. on July 4. [ 6 ] An autopsy was performed on July 8, 2015. The baby was found to be full term and had taken at least one breath.

No traumatic injuries were noted and no indications of asphyxiation. Physical development of the baby was normal and all organs were fully formed and healthy. Cause of death was undetermined. [ 7 ] Crown does not dispute the submission of the Accused that she did not cause the death of the baby and that she did not know she was pregnant until the night she gave birth. Background and Context [ 8 ] The Accused is 26 years old, 25 at the time of the offence. She is the eldest child of father Mario and mother Josephina Geraldizo. She has two brothers, Mark, age 24, Miko, age 20 and one sister, Marian, age 18.

Josephina had left the Philippines in 2003 to work in Hong Kong as a nanny in order to better support the family. She then came to Canada in 2008. Throughout that time, she sent the majority of her earnings back to her family in the Philippines and was only able to return to visit her family two times, once when she was working in Hong Kong and once after she came to Canada. [ 9 ] Eventually Josephina was able to apply to sponsor her family to come to Canada.

On April 9, 2015, the Accused immigrated to Canada with her son, her father and her siblings, and re-united with Josephina. [ 10 ] During the 12 years that Josephina was in Hong Kong and Canada working to support the family, many of her parenting duties were assumed by the Accused, being the eldest child. [ 11 ] The Accused became involved in a relationship with a man, and had a child out of wedlock, her son (omitted for publication). She reported that her parents were not happy as they were of strong Christian beliefs and frowned on extra-marital sex.

Despite their disapproval, she resumed the relationship for a time and he would have been the father of the baby born July 3, 2015. The Accused did not know she was pregnant and did not report that fact to immigration. [ 12 ] Those three months between landing in Canada and the offence date was a busy and hectic time for the Accused.

Almost immediately after landing in Canada, the Accused began working to help support the family, often holding down two jobs, one re- stocking shelves in a retail outlet and one doing janitorial work. [ 13 ] In the pre-sentence report, under the heading “ATTITUDE AND UNDERSTANDING REGARDING OFFENCE” , probation officer Jacqueline Sammartino wrote the following: “The subject attributes her offending behaviour to a temporary lapse in psychological functioning, which had been slowly deteriorating due to exacerbating factors.

These factors include recent immigration, extreme exhaustion from excessive physical work, struggling to assimilate in a new country and adapt to Canadian culture, and the adjustment of having her entire family living together in a small apartment in a new country. Marijoy states that she has was in a dream-like state during the commission of the offence, describing that she felt physically ill, did not know she was pregnant, and was in such shock when she delivered the child she did not know how to react.

The subject takes responsibility for her actions, stating she is horrified and extremely saddened at what occurred. While recounting these events to the writer of this report the subject was in a state of emotional distress. Marijoy cried throughout the two hour interview, especially while describing birthing the baby and the aftermath. She appeared to be truly remorseful and deeply upset by the events. Marijoy’s mother, Josephine (sic) Geraldizo, and Kiwassa immigrant support worker, Lot Ramirez, both confirmed the events are shocking and affirmed Marijoy’s genuine remorse.” [ 14 ] In the psychiatric report, Dr.

Meldrum, similarly describes the Accused as expressing:

“intense remorse with respect to her actions that night and the impact this has had on her family members” [15] Dr. Meldrum’s diagnosis of the Accused is one of “Adjustment disorder with depressed mood and anxiety”. [16] Under the heading “RISK ASSESSMENT”, Dr. Meldrum wrote: “Ms. Geraldizo does show some characteristics that have been described as in the literature being more common in women that arelikely to commit neonaticide, although it is emphasized that Ms. Geraldizo has not been charged with causing the death of her infant. Ms.

Geraldizo can be described as passive and immature and perhaps with a low average I.Q. or a borderline I.Q. It is evident that shefeels a strong sense of shame with respect to her prior unplanned pregnancy and has strong moral beliefs with respect to premarital sexand the use of contraception. She also has a strong fear of disapproval and rejection from her parents. Ms. Geraldizo describes nothaving any conscious awareness of her pregnancy which is consistent with the literature.

She also describes experiencing intense shockat the time of the birth of her infant and then depersonalization and derealization with the sense that things were unreal and that she wasin a nightmare or dream. Again this is consistent with what has been described in the literature. The risk to re-offend is challenging to assess but in the literature it does appear that serial neonaticide is rare and more typically seen ina sub group of older women that are significantly anti-social in their personality structure and commit serial neonaticide to deal withunwanted pregnancies which is not the case for Ms. Geraldizo.

Ms. Geraldizo does continue to appear unsophisticated and ‘immature’but she does appear to have benefitted from the support of Kiwassa Neighbourhood House and Richmond Mental Health, specifically Dr.Heather Donaldson. She does experience intense shame and remorse and has some insight into her need to be more independent and askfor assistance when required. She does not appear to have a major mental illness or any significant personality characteristics thatwould increase her risk to re-offend.

She states that in the future, she is more than prepared to see a physician and ask for reliablecontraception that would not involve her needing to use contraception on a daily basis. Therefore, in consideration of the informationthat is available in the literature and Ms. Geraldizo’s particular circumstance, it would be my clinical impression that her risk toreoffend similarly would be low.” [17] Under the heading “SUMMARY AND PROPOSED INTERVENTIONS”, probation officer Sammartino wrote: “Since coming to Canada in April 2015 Marijoy has maintained continuous employment.

The subject has a dedicated work ethic, oftentimes holding down more than one job at a time. Marijoy is currently enrolled in some classes at the local community centre. Theseclasses are to help her with her conversational English. She would like to continue to further her education with the goal of acquiringskills to help her secure a better paying job in the future so she can resume a primary parenting role and independently support herselfand her son (omitted for publication). The subject reports no history of substance abuse, past or present.

Marijoy states she is prepared to comply with any court ordered conditions if she is sentenced to a community based disposition. Thesubject acknowledges she committed the offence of disposing of the dead body of a child with intent to conceal the fact she had beendelivered of it, contrary to

section 243 of the Criminal Code. Marijoy takes full responsibility for her actions and expresses deep sadnessand remorse. Marijoy states she is agreeable to any interventions recommended by the Court, stating she is motivated to get her lifeback on track and wants to move forward for herself and her son (omitted for publication). The subject has the long term goals offurthering her education, gaining skills which will contribute to higher paying employment and one day being able to independentlysupport herself and her son (omitted for publication) so they can live on their own.” [18] At page 10 of Dr.

Meldrum’s psychiatric report, she wrote: “Ms. Geraldizo states that since her arrest, she has benefitted from the support of workers at Kiwassa Neighbourhood House and withtheir support has started to attend school on Friday evenings to advance her education. She has seen Dr. Donaldson on occasion atRichmond Mental Health and has found this helpful but acknowledges that she has not seen Dr. Donaldson as often as she should.

Shereports she has frequently been sad but denies that she has used alcohol or drugs to self-medicate her mood since her arrest” [19] The Accused has the strong support of her immediate family, all of whom were in Court for the sentencing hearing. Referenceletters in her support are from her mother, Mr. Lot Ramirez of Kiwassa Neighbourhood House and from Cecilia Capalad, President of theFilipinos in Richmond Support Team (FIRST) Society.

The sentencing materials contain her Certificates of Completion for the FoodSkills for Families Program and the Literacy for Life Skills Program - courses the Accused attended on Friday evenings after work. TheAccused has plans to enroll in a full-time program at Vancouver Community College - Introduction to Culinary Skills. [20] The Accused has good support from her family and has been able to find support in the community in the short time she hasbeen in Canada, even though she has been engaged in these court proceedings for most of that time.

The theme of shame and intense andgenuine remorse is repeated throughout both the pre-sentence report and the psychiatric report. She has taken her own initiative towardsher rehabilitation. She has been a hard-working and contributing member of society and appears to be committed to continue that into thefuture. I am satisfied that the risk of her re-offending or engaging in any future criminal conduct is very low.

It is clear that the Accusedis an excellent candidate for rehabilitation. [21] After her arrest, the Ministry of Children and Families imposed a condition that the Accused not be alone with her child(omitted for publication) at any time. That condition was recently removed and there are now no restrictions on her contact with him. [22] There are many mitigating factors in the case at bar. The Accused has entered an early guilty plea and has shown genuineremorse. She has no prior criminal history and no outstanding charges before the Court.

She has taken steps towards her ownrehabilitation by working steadily and taking courses to advance her own education. She has plans to better herself and she is still arelatively young person. [23] On the other hand, this is a very serious offence. In the case of R. v. Levkovic, (ON SC), [2008] O.J. No.3746, C. Hill, J. described the history of this legislation in an application challenging the constitutional validity of

Section 243. In hisreasons, C. Hill, J. described the very significant state interests that are the foundation of

Section 243.

[24] The purpose of

Section 243 is to facilitate the investigation of infant deaths. The prohibition against concealment of a deadbody of a child seeks to preserve crucial evidence. Concealment of the dead body frustrates and prevents the timely forensic examinationof the deceased child which might help to determine how the death occurred and to assist in establishing whether the death would attractmore serious criminal liability. [25] Also, a mother may not be in the best position to know whether her new-born is alive or dead or might be resuscitated andsaved.

The decision to discard a body should not be left to her. [26] Children are a vulnerable group in our society deserving and needing the government’s protection. Scrutiny of their deaths is apressing and significant state interest. The dignity of children requires that their bodies be properly disposed of.

Civilized, regulateddisposition of their bodies vests some humanity in the body. [27] For all of the foregoing reasons, concealing the dead body of a child with the intent to conceal the fact that she had beendelivered of it, is an offence that calls out for a sentence addressing the principles of denunciation and deterrence - particularly generaldeterrence. However, given the strong mitigating factors in the case at bar and the circumstances of the Accused, rehabilitation mustalso be addressed. [28] In the two cases that came before this Court in Richmond, R. v.

Pullman, September 12, 2012, Richmond Registry File# 56804-2C and R. v. Taylor, [2011] B.C.J. No 704, those accused’s requests for conditional sentences were rejected. Judge Fratkin imposed a 6-month conditional sentence order in Pullman and Judge Werier imposed a 12-month conditional sentence order in Taylor. [29] In R. v. Jones, [2005] B.C.J. No. 1426, Judge Ball rejected a request for a conditional discharge and imposed a 6-monthconditional sentence order for an offence under the related

Section 242 but where the gravamen of the offence was the concealment ofthe birth of the child. [30] Defence counsel has conceded that there is not a single case where a conditional discharge has been imposed for this offence. There is one case from the Ontario Court of Justice (General Division), R. v. Wood, [1999] O.J. No. 5042 where a suspended sentencewas imposed for infanticide.

All of the other cases have imposed custodial sentences - some by way of conditional sentence orders. [31] None of the cases that have been presented contain the mitigating fact of jeopardy to the Accused’s immigration status underthe Immigration and Refugee Protection Act (IRPA) upon a conviction being registered. As this is an indictable offence, a convictionwould render the Accused inadmissible pursuant to Section 36(2)(

a) of IRPA. A sentence following conviction of 6 months or morewould render the Accused inadmissible under Section 36(1) of IRPA, on the ground of “serious criminality”. [32] Being inadmissible under either Section 36(1) or Section 36(2) will result in a deportation or removal order, but theconsequences under Section 36(1) are far more serious. Under Section 36(2), the offender still has the right to appeal the deportation orremoval order but under Section 36(1), there is no right to appeal a removal from Canada to the Immigration Appeal Division. [33] All of the Accused’s family is now settled in Canada.

This is a close, tightly knit family that has survived long periods ofseparation from the mother and provider, Josephina. The Accused would no longer have any of that support should she be deported orremoved from Canada and returned to the Philippines. [34] R. v. Pham, 2013 SCC 15 , [2013] S.C.J. No. 100 is authority for the proposition that the Court must consider asentence’s collateral immigration consequences. However, as stated by our Court of Appeal in R. v.

Rich 2014 BCCA 24, whileimmigration consequences can be considered when imposing sentence, such considerations cannot justify a sentence that is unfit. [35] In my view, given all of the circumstances of the offence, the circumstances of the Accused, the mitigating and aggravatingfactors and the case authorities, a conditional discharge would not adequately address the principles of denunciation and deterrence, nomatter what conditions it contained. Given the societal interests in

Section 243, including protection of the public - in particular children,it would not be appropriate for a conviction not to be registered. Accordingly, while I find that a discharge would be in the Accused’sbest interest, it would not be in the public interest. [36] However, in light of the many mitigating factors and the effect that this will have on her immigration status, it is my view that afit sentence would be one of 6 months less a day served in the community by way of a conditional sentence order.

I find that such asentence would not endanger the safety of the community and would be consistent with the fundamental purposes and principles ofsentencing. There will be a probation order to follow of 18 months. [37] Ms. Geraldizo, please stand. I order that you serve a custodial sentence of 6 months less a day. The sentence will be served inthe community by way of a conditional sentence order. The conditions will be as follows: 1. Keep the peace and be of good behaviour. 2.

Report today by 4:00 p.m. to a Conditional Sentence Supervisor at Suite 210 - 7577 Elmbridge Way, Richmond, B.C., inperson and thereafter as and when and in the manner directed by your Supervisor. 3. On your initial report to the Supervisor, provide your residential address and any contact telephone numbers you may have andthereafter not change your address without the prior written consent of your Supervisor and provide advance written notice of anychanges to your contact telephone numbers prior to such changes being made. 4.

Remain in your residence except for the purposes of legitimate employment or attending educational classes or school, medicaland dental emergencies for yourself or your son (omitted for publication), attendances in Court, appointments with counsel and yourSupervisor, and with the written permission of your Supervisor, such permission to be carried on your person at all times. 5. Attend to the door or to the telephone immediately should your Supervisor, any peace officer, any staff from Corrections or any

person delegated by them attend at your residence or telephone your residence for the purpose of monitoring the conditions of this order. 6. Attend, participate and complete to the satisfaction of your Supervisor, any counselling or treatment as you may be directed to by your Supervisor, which treatment or counselling may include psychological or psychiatric treatment or counselling. 7. Attend all scheduled appointments with Dr. Heather Donaldson or any member of the Richmond Mental Health Team at 6061 No. 3 Road, Richmond, B.C., or with any other mental health agency to which you may be referred by Dr.

Heather Donaldson, the Richmond Mental Health Team or your Supervisor. 8. Provide your treating physician with a copy of this order and the name, address and telephone number of your Supervisor. You shall instruct your treating physicians that if you fail to take medication as prescribed by your physician or fail to keep any appointments with your physician, your physician is to advise your Supervisor immediately of such failure. 9. Take any medication prescribed for you by your medical practitioners, except that you shall not be required to submit to any treatment or medication to which you do not consent. 10.

If you do not consent to the form of treatment or medication which is prescribed or recommended, you shall forthwith report to your Supervisor and thereafter report daily to your Supervisor or as further directed. 11. If you become pregnant, immediately report that pregnancy to your Supervisor. 12. If you become pregnant, attend and maintain all necessary medical and counselling appointments as directed by your Supervisor or your medical practitioner. 13.

If directed by your Supervisor, attend for medical examination for pregnancy as directed, and then provide verifiable results of such examination to the Supervisor. [ 38 ] Upon the completion of your conditional sentence order, you will comply with the terms of a probation order. The probation order will be for 18 months. The terms of the probation order will be as follows: 1. Keep the peace and be of good behaviour. 2. Report today by 4:00 p.m. to a Probation Officer at Suite 210 - 7577 Elmbridge Way, Richmond, B.C., in person and thereafter as and when and in the manner directed by your Probation Officer. 3.

On your initial report to the Probation Officer, provide your residential address and any contact telephone numbers you may have and thereafter not change your address without the prior written consent of your Supervisor and provide advance written notice of any changes to your contact telephone numbers prior to such changes being made. 4. Attend, participate and complete to the satisfaction of your Probation Officer, any counselling or treatment as you may be directed to by your Probation Officer, or which treatment or counselling may include psychological or psychiatric treatment or counselling. 5.

Attend all scheduled appointments with Dr. Heather Donaldson or any member of the Richmond Mental Health Team at 6061 No. 3 Road, Richmond, B.C., or with any other mental health agency to which you may be referred by Dr. Heather Donaldson, the Richmond Mental Health Team or your Supervisor. 6. Provide your treating physician with a copy of this order and the name, address and telephone number of your Probation Officer.

You shall instruct your treating physicians that if you fail to take medication as prescribed by your physician or fail to keep any appointments with your physician, your physician is to advise your Probation Officer immediately of such failure. 7. Take any medication prescribed for you by your medical practitioners, except that you shall not be required to submit to any treatment or medication to which you do not consent. 8.

If you do not consent to the form of treatment or medication which is prescribed or recommended, you shall forthwith report to your Probation Officer and thereafter report daily to your Probation Officer or as further directed. 9. If you become pregnant, immediately report that pregnancy to your Probation Officer. 10. If you become pregnant, attend and maintain all necessary medical and counselling appointments as directed by your Probation Officer or your medical practitioner. 11.

If directed by your Probation Officer, attend for medical examination for pregnancy as directed, and then provide verifiable results of such examination to the Probation Officer. The Honourable Judge P. Chen Provincial Court of British Columbia