R. v. Bouvette, 2013 BCPC 441

Citation: R. v. Bouvette 2013 BCPC 441 Date: 20130516 File Nos: 29382-8-C, 29382-6- A, 29759-1 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TAMMY MARION BOUVETTE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: L. Swanson Council for the Defendant (appearing by teleconference): J. Gelber Place of Hearing: Cranbrook , B.C. Date of Hearing: May 13, 2013 Date of Judgment: May 16, 2013 [ 1 ] THE COURT: Tammy Marion Bouvette pleads guilty to the charge that on May 26, 2011, she did, by criminal negligence,

cause the death of I.T., contrary to s. 220 (

b) of the Criminal Code . Ms. Bouvette also pleads guilty to the charge that on or about December 20, 2012, she committed robbery while armed with a knife, contrary to s. 344 (

b) of the Criminal Code . [ 2 ] In regard to the charge that Ms. Bouvette negligently caused the death of I.T., the Crown seeks a sentence of two years. It seeks an additional two-year sentence for the charge of robbery to be served consecutively, for a global sentence of four years. [ 3 ] Counsel for Ms. Bouvette, Mr. Gelber, submits that in all the circumstances, the Crown's sentencing position is unduly harsh. Mr. Gelber seeks a global sentence of less than two years. He seeks an order that when time served is taken into account, that Ms.

Bouvette serve the remainder of her sentence in the community under a Conditional Sentence Order (CSO). Mr. Gelber submits that Ms. Bouvette should be released today. [ 4 ] Ms.

Bouvette, who has been in custody since May 7, 2012, submits that in all the circumstances no principle of sentencing will be served by her further incarceration, and moreover, the purpose of sentencing may be harmed if she is not released either now or soon, so that she can be reunited with her children for whom, until the tragic event of May 26, 2011, occurred, she had been the primary and only caregiver. [ 5 ] The issue in this sentencing then is the length of sentence that must be imposed upon Ms.

Bouvette, taking into account all of the circumstances, and the relevant principles and objectives of sentencing, and whether at least part of it can be served in the community by way of a CSO. [ 6 ] While at the end of this sentence, I will deal with the sentences for both offences globally, I propose to follow the arguments by counsel both of whom dealt with each offence separately. Criminal Negligence Causing Death [ 7 ] I will begin then by giving my reasons in regard to Ms. Bouvette's sentencing on the charge of criminal negligence causing death.

This charge arises out of the tragic and awful death of I.T., a [omitted for publication] -month-old baby who had been placed in the care of Ms. Bouvette. [ 8 ] The circumstances of I.T.’s death must be recounted in some regard for the purposes of sentencing. They are sad on every level. [ 9 ] On May 26, 2011, Ms. Bouvette was entrusted with the care of [omitted for publication] -month-old I.T. by one of Ms. Bouvette's very few friends, R.S. Ms. Bouvette was at that time the mother of four children, two of whom were home that day being cared for by Ms.

Bouvette, in addition to I.T. [ 10 ] What actually occurred in the moments or hours leading to the death of little I.T. may never be known. In its submissions, the Crown attempted to piece together the circumstances as they must have occurred. Ms. Bouvette agrees with most, but not all, of the Crown's submissions. [ 11 ] It is not controversial that Ms. Bouvette had a lot on her hands that day. At 28 years of age, Ms. Bouvette was already the single mother of four children. She had behind her a history of significant drug and alcohol abuse.

She herself was abused as a spouse, and left a tumultuous home at age 15. [ 12 ] While some may have similar experiences and do fine, Ms. Bouvette was struggling. She was struggling to raise her children in a low-income environment with minimal assistance, some extraordinary cognitive deficits, little or no education, and significant difficulties in controlling her impulses and anger. [ 13 ] Despite this, there is no evidence that Ms. Bouvette was ever the subject of interest by the Director of Children and Families in regard to her own children.

There is no suggestion she was unable to parent her children or that she was an ineffective parent. The only evidence I have on this sentencing is that Ms. Bouvette was herself a very good parent. Nonetheless, her frustrations and inability to manage her anger and impulses, and to manage in a stressful situation, was noted in a report prepared only a few years earlier in support of her application for disability benefits. [ 14 ] On May 26, 2011, as she attempted to care for three young children, Ms.

Bouvette made several terrible and, in her own words, irresponsible choices that resulted in the death of I.T. [ 15 ] As the Crown was able to piece it together from various statements by Ms. Bouvette, the morning of May 26, 2011 would not have been easy. For example, Ms. Bouvette reported very late in the day that her youngest child probably struck I.T. more than once, causing injuries noted later by a pathologist conducting an autopsy on the child. [ 16 ] Ms. Bouvette made lunch for the children, but her limited seating capacity meant that she fed them in shifts.

She had a booster seat that fastened onto a chair and a child could be strapped into the booster seat to eat. Ms. Bouvette told police she fed her oldest daughter first, and then strapped I.T. into the booster seat. Ms. Bouvette knew that her booster seat was unsteady, yet I expect she had no choice but to use it. [ 17 ] After I.T. finished her lunch, Ms. Bouvette began to release I.T. from the booster seat by unbuckling one of its restraining devices when she heard a loud noise coming from the living room. She left I.T. and went to investigate. She says she saw one of her own children standing atop a table.

She then heard a very loud noise in the kitchen and returned there, and that is when she saw that I.T. had fallen off the chair onto the floor and was under the chair, which had fallen on top of her. [ 18 ] Ms. Bouvette told police that I.T. was upset and crying, and that she appeared to have a small bump on her head. Ms. Bouvette told police that after this fall, she took I.T. to the bath to clean up the ravioli from her and also to soothe her.

[ 19 ] A pathologist conducting the autopsy on I.T. found evidence of bruising on the top and sides of I.T.’s head and gash inside her mouth that would have led to considerable blood loss, in that pathologist's opinion, and that I.T.’s distress would have been obvious. The inference I suspect I am to draw from this is that Ms. Bouvette took I.T. to the bath to wash both spaghetti and blood off of her. [ 20 ] The Crown is adamant that I.T. would have been visibly distressed, and not the unfussy girl splashing in the tub that Ms. Bouvette made out. [ 21 ] The findings of the pathologist are contested by Ms.

Bouvette, whose counsel says was investigated by the Government of Alberta and found wanting. The Crown replied that an independent investigator in this province agreed that I.T. had an injury to her mouth that would have caused bleeding and that would have been painful. [ 22 ] We will never know whether I.T. was visibly bleeding when she was taken to the bath, but Ms. Bouvette's admission that she was calming I.T. and all of the circumstances indicate that I.T. would have been very upset that afternoon.

A prudent parent, even suspecting only a small head wound, might have called 9-1-1 or taken I.T. to the hospital to ensure that she was not injured. [ 23 ] Sadly, Ms. Bouvette did not seem to have the presence of mind to make that obvious decision, one that might have led to a much different result. Rather, Ms. Bouvette took I.T. to the bathroom where she placed her in the tub and inexplicably left her there, while she went into her bedroom to get a towel and there commenced, she says, cleaning some water off of the rug. [ 24 ] When Ms.

Bouvette returned to the bathroom about five minutes later, she found I.T. lying face down in the tub. She pulled her out and attempted to revive her before calling 9-1-1. [ 25 ] I.T.'s mother, R.S., was working as a maid at the hospital that day when I.T. was brought in. I.T. was subsequently transferred to Calgary where she was pronounced dead the next day. [ 26 ] In interviews with police Ms. Bouvette lied about events, before ultimately giving a version of events that corresponded somewhat with the physical evidence. Ultimately, Ms.

Bouvette indicated that some of the marks on I.T.'s head could have been caused when her young son struck I.T. that day as he did several times with his toys. [ 27 ] Crown submitted that the opinion of the pathologist was that I.T.'s marks could be consistent with such blows, as well as from the fall off of the booster seat. In the result, the Crown has proceeded with this charge of criminal negligence causing the death of I.T. [ 28 ] This charge is brought under s. 220 (

b) of the Criminal Code , which provides that every person who by criminal negligence causes death to another person is guilty of an indictable offence and is liable, in a case where a firearm is used, to punishment of a minimum of four years, and in every other case to imprisonment for life. [ 29 ] The range of sentencing for this offence traverses from a suspended sentence to life in prison. Until recent amendments to the Code , a CSO was also available.

In many of the cases before this court on this sentencing hearing, offenders were sentenced to serve time in their community under a CSO. [ 30 ] The very range of sentencing still available under the Code , the absence of a CSO option notwithstanding, reflects the fact that the offence itself covers a range of conduct and a range of circumstances in which a suspended sentence could be appropriate on the one hand, while in other instances a life sentence, even for criminal negligence, could also be appropriate. [ 31 ] This concept was most recently discussed by Gabrielson J. in R. v.

Wudrich , [2013] SKQB 35 There the court wrote that negligent conduct in law exists along a continuum from negligence giving rise to purely civil consequences, to the most egregious negligence causing death just short of intentionality. [ 32 ] A charge of criminal negligence causing death is made out if the accused's conduct represented a marked and substantial departure from the parental norm in this case, where the accused either consciously risked the life of a child or was wilfully blind to that risk. [ 33 ] The circumstances of this case, in my view, evidence a marked and substantial departure from the conduct of a reasonably prudent parent.

Ms. Bouvette had to have known just how risky it was to leave I.T. alone in the tub after she had just fallen and injured her head, no matter how slight. To leave her alone, a child under two, in the tub for five minutes under any circumstances falls well below any rational norm. [ 34 ] In this instance, the Crown submits that Ms. Bouvette showed reckless disregard for the life of I.T. by leaving her in the bathtub alone for no good reason, knowing that it was dangerous to do so and being careless about the consequences. I agree.

The offence has, without question, been made out, but there is yet another scale or spectrum that must be considered in these cases, which is linked to, but not inextricably tied to, the continuum of conduct necessary to make out a case of criminal negligence. That spectrum is one of moral culpability. [ 35 ] In R. v. Lam , [2004] ABQB 78, a case relied on by both counsel, the court sentenced Mrs. Lam to two years less a day to be served in the community under a CSO.

In his discussion of the principles of sentencing for this offence, Justice Macklin noted at paragraph 29 of Lam that a key sentencing consideration for this offence lies with the degree to which the offender is morally culpable for the offence. This has been described in various cases as an exercise in discerning where on the moral culpability ladder the offender reached when he or she committed the prohibited act.

In other words, how responsible was the offender for the offence, how much risk was taken or lack of care, particularly given the offender's personal circumstances or characteristics that may mitigate or aggravate culpability. [ 36 ] Before leaving the Lam case, I will note that Mrs. Lam, who caused the death of a seven-and-a-half-month-old child in her care by slamming the child on the floor with some force in a brief moment of frustration brought on by her own two children, was found by that court to occupy one of the lower rungs of the culpability ladder.

In other words, this was a momentary lapse of judgment caused by a

single incident of frustration in which Ms. Lam, a person having no criminal record, unintentionally caused the death of the young child and was, for that reason, sentenced to two years less a day to be served in the community. Otherwise, there is no suggestion that Ms. Lam had any particular difficulty handling stress, or that she was in any way suffering from any cognitive deficits or from a lack of resources. [ 37 ] In its submissions, the Crown did point to Ms.

Bouvette's difficult personal history and emphasized her fragilities, such as that she is poorly equipped, both intellectually and emotionally, to deal with stress, and that this inability likely contributed to her poor decision making that day. [ 38 ] Nonetheless, the Crown submits that in cases such as this, the primary sentencing objectives must be denunciation and general deterrence, and these two objectives can only be achieved if a significant jail term is imposed. [ 39 ] Ms. Bouvette does not disagree that denunciation and general deterrence are valid sentencing objectives for this offence.

However, her counsel argues that other equally-important sentencing objectives, such as Ms. Bouvette's reintegration into the community and her rehabilitation, which are also necessary to meet the goal of sentencing, are best served by her release on conditions, including counselling and reporting and general abstinence clauses. This, of course, takes into account the 12 months that Ms. Bouvette has already served in custody on this charge and the other charge. [ 40 ] The Crown also seeks a jail term on the charge of robbery, which Ms. Bouvette has also pled guilty to in this sentencing hearing. [ 41 ] Ms.

Bouvette's counsel seeks that any custodial sentence on the robbery charge be served by way of a CSO. The Robbery Charge [ 42 ] Ms. Bouvette was initially charged with murder in this matter, but released on bail by consent of the Crown and her then-counsel. The bail conditions were strict and Ms. Bouvette quickly breached them. Various adjustments were made to the bail, and Ms. Bouvette breached again. She was charged with breach of recognizance, a charge to which she pled guilty and was sentenced in January of 2012. [ 43 ] Nonetheless, while out on bail on murder charges, Ms.

Bouvette left her residence contrary to her bail conditions on December 20, 2012, disguised herself using a mask, and, having a knife in her possession, walked into a nearby gas station and there told three young persons in attendance in no uncertain terms that she would stab them if they did not give her money. The young persons seemed to appreciate that their assailant was a female and did not appear to have found her particularly frightening, despite her threat.

Rather than give her money, they talked her into leaving the store before police arrived. [ 44 ] After several months of investigation, police ultimately obtained a confession from Ms. Bouvette, who admitted to trying to rob the station for money for alcohol, as she was drinking a great deal at the time and did not want to do without. The Circumstances of the Accused [ 45 ] Before being charged with the robbery months after it occurred, Ms. Bouvette pled guilty in February 2012 with another breach of recognizance and was sentenced to seven days in custody plus time served.

In March of 2012, she pled guilty to the assault of her stepfather, which assault occurred after she was charged with the murder of I.T., but before she committed the robbery. In that instance, Ms. Bouvette pled guilty to yet another breach charge as well, and was sentenced to 45 days in custody. [ 46 ] As I say, I am advised that Ms. Bouvette has been in custody since May 7, 2012. [ 47 ] The Crown submits that with this record Ms. Bouvette is not a suitable candidate for a conditional sentence on the robbery charge, even if one were available under the Code .

In that regard, the Crown submits that robbery is a serious personal injury offence, as that term is defined in s. 752 of the Code , such that a CSO is not available as a sentencing option, in any event. [ 48 ] Ms. Bouvette submits that a great deal of her conduct following the murder charge can be attributed to a breakdown essentially of the structure of her life. After being charged with murder, her children were removed and they now reside with their father. She has little or no contact with them. [ 49 ] Ms.

Bouvette found herself living at Haven Garden, a residence for women essentially in need of protective living, and on strict bail conditions. She soothed her pain with alcohol and drugs, and fell quickly back into her former addictive lifestyle. [ 50 ] Ms. Bouvette does suffer from some cognitive deficits. She has been diagnosed as suffering from ADHD and, by one account at least, was assessed as having an IQ below 60.

Other reports have it at 65, but either way, her IQ is clearly well below average and in the range of mild mental retardation. [ 51 ] In an assessment conducted in November of 2008 for the purposes of her application for disability payments, all of these various deficits and behavioural problems were noted. Dr. Wong, who carried out the assessment, specifically noted at page 12 of the report that Ms.

Bouvette would benefit from participation in stress management relaxation, parenting training, and other educational opportunities available in the community, as this would help her improve her adaptive functioning, her coping skills, and to reduce her social isolation. [ 52 ] Some of these services may or may not have been offered. If they were, she either was unable to take advantage of them or they did not work. [ 53 ] Instead, in 2011, Ms. Bouvette had given birth to yet another child and was, in May of that year, caring for two very young children and babysitting a third, I.T.

In retrospect, she should not have been left to care for so many children at once, but that is only

obvious with all of the information garnered for this sentencing hearing, and that fact is extremely unfortunate. Victim Impact Statement [ 54 ] Before turning to specifically deal with the various positions on sentencing, I must comment on the remarks of R.S., I.T.'s mother. There was not a written victim impact statement in this case; it was provided during the submissions of Crown. To quote Crown counsel, R.S. is indeed a remarkable person. R.S., who one might expect would want the most vengeance to be exacted on Ms. Bouvette, seeks nothing of the kind. [ 55 ] R.S. advised Crown that she does not blame Ms.

Bouvette, nor does she seek revenge. She understands that Ms. Bouvette made a horrible mistake for which she must bear the reasonable consequences. She has pity for Ms. Bouvette, and more so for Ms. Bouvette's children, who may be the subject of bullying in this community as a result of this tragic incident. [ 56 ] I would echo R.S.’s comments. Here it is clear on May 26, 2011, that Ms. Bouvette made a series of ill-advised decisions that led to the distress and ultimate death of young I.T.

She must bear the consequences of that, taking into account her background and her degree of fault or moral blameworthiness, as it is described in the case law. [ 57 ] This death was a terrible accident. It was not intentional, but it did come about as the function of the negligence, the criminal negligence of Ms. Bouvette, who was that day in May reckless as to the life and safety of I.T. Ms. Bouvette is not likely to repeat this offence. No one suggested this is the case.

However, the nature of the offence involving the very vulnerability of young children like I.T. commands a sentence in these circumstances that does meet the sentencing objectives of denunciation and general deterrence. [ 58 ] Not surprisingly, there is no victim impact statement on the robbery charge. Sentencing Positions [ 59 ] In terms of the sentencing positions, the Crown, as I have noted, seeks a global sentence of four years. It seeks a sentence of two years on the charge of criminal negligence causing death and two years on the robbery. [ 60 ] Ms.

Bouvette submits that the case law supports a sentence in the range of nine months to three years, and that in this case the sentence should be at the lower end of the range. Taking into account time served, Ms. Bouvette should essentially be sentenced to time served. On the robbery charge, Ms. Bouvette seeks a CSO in the amount of two years less a day to be served in the community on conditions. [ 61 ] In every sentencing, the court must take into account and apply the purpose and principles of sentencing under the Code , as those are set out in s. 718 and 718.2.

They provide that: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 62 ] Which objectives are applied in each case depends on the various circumstances of the case, the nature of the offence, and the nature of the offender. [ 63 ] 718.1 provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 64 ]

Section 718.2 provides that a court that imposes a sentence shall take into consideration the following principles: that the sentence must be reduced or increased to account for any relevant aggravating or mitigating circumstances; that the sentence must take into account the age of the offender; evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and finally, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 65 ] An offender must not be deprived of liberty, if less restrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 66 ] In terms of the issue of trust, the Crown submits that s. 718.2(a)(ii.1) and (iii) apply in this case.

It submits that child abuse arises in this case by virtue of the abandonment of I.T. in the bathtub in all of the circumstances. It submits that an abuse of trust in relation to I.T. arises out of the same circumstances. [ 67 ] The death of a child or the suffering of a child causes all but most the maladapted among us to feel intense sorrow. It is worse for the parents and family of the child.

The grief and sorrow can often leave to an almost reflexive demand for vengeance upon the perpetrator, and though that is not the case with the family here, it is, I am told, a feeling that may be prevalent in the community.

[ 68 ] But whatever those feelings, the purpose of sentencing, the focus of sentencing must be to accomplish the stated objective, to ensure the community is safe and the laws are respected, and to accomplish this by imposing just sanctions that take into account the nature of the offence and the nature of the offender.

Sentence on the charge of criminal negligence causing death [ 69 ] Earlier in these reasons, I alluded to the continuum of conduct that must be considered when sentencing an offender for criminal negligence causing death, as well as the degree of moral blameworthiness evident in a particular case. [ 70 ] In many of the cases provided by the Crown, and I include in that R. v. Lam , R. v. Schoenthal , [2006]S.J. 242 , and R. v. Patten , [2002] N.J. 295, the offenders unintentionally caused the death of a child by an otherwise intentional act. [ 71 ] Mrs.

Lam intentionally slammed N.W. on the floor in frustration, though she never intended to cause N.W.’s death. [ 72 ] Ms. Schoenthal shook her son in an extreme way. Again, she was frustrated and anxious and her son was challenging. In that case, Ms. Schoenthal was sentenced to 30 months in a custodial sentence. [ 73 ] In R. v. Patten , Mr. Patten pled guilty to criminal negligence causing the death of his daughter, which he did not intend to do, though he did intentionally slam his daughter onto the bed so hard that as her head hit the headboard, she was mortally wounded. Mr.

Patten was sentenced to 28 months in custody. [ 74 ] Ms. Bouvette submitted several other cases, including R. v. Rae , [1997] O.J. No. 2384 . In that case, Ms. Rae, young member of the Sandy Lake First Nations, was found guilty of having caused the death of her infant nephew by shaking him for some 20 seconds in a fit of frustration brought on by his constant crying. The court agreed that the sentencing objective of general deterrence was a significant factor in sentence.

It concluded, however, that the objective could be met by suspending the passing of sentence for two years and imposing a period of probation with a condition that Ms. Rae lecture young mothers about the fragility of young babies. [ 75 ] In my view, the Rae case is an outlier and must be confined to its own specific and unusual set of social facts. In no way could such a sentence meet the relevant sentencing objectives in this case. [ 76 ] Ms. Bouvette also referred the court to the sentencing in R. v. Medeiros and Medeiros , [2002] O.J.

No. 45037 (ONCA) in which the Medeiros parents pled guilty to criminal negligence causing the death of their six-month-old child, who swallowed a metal screw and choked to death while left in the care of his siblings, the oldest of which was 10 years of age. [ 77 ] The Medeiros were initially sentenced to six months in custody, not only for the criminal negligence causing death, but also for the charges of abandoning their other children and for fraud in respect of social assistance. That sentence was overturned on appeal and replaced by a nine-month CSO. [ 78 ] In R. v. Pashe , [1995] M.C.A.

No. 6256 (MBCA), the accused pled guilty to causing the death of a 21-month-old foster child in her care by shaking the child excessively in an attempt to rouse the child, who had fallen into unconsciousness when slapped by Ms. Pashe. After concluding that the accused had a minor criminal record, was remorseful for causing the death of the child, acted swiftly to seek aid for the child once she realized the harm she had caused, and taking into account the guilty plea, the Crown and defence jointly recommended a one-year sentence.

That sentence was rejected by the sentencing judge as being unfit, but was ultimately restored on appeal. [ 79 ] Finally, in R. v. Kierkegaard, [1998] B.C.J. No. 2991 (BCSC) , Mrs. Kierkegaard, a registered nurse and the caregiver of baby M., a child born drug-addicted and therefore difficult to care for, pled guilty to criminal negligence causing bodily harm to the child by shaking her so violently in a fit of frustration as to cause severe and permanent brain damage. Ms. Kierkegaard was sentenced to a CSO of two years less a day. [ 80 ] Ms.

Bouvette submits that the range of sentencing in the case law for criminal negligence causing death ranges from a suspended sentence to approximately 28 months, with 28 months being at the high end and applicable in the case where there is either evidence of admissions of violence leading unintentionally to the death of an infant.

That, I find, is an accurate assessment of the range of sentences in the case law, at least before this court. [ 81 ] I find also that in many of the cases, with a few exceptions that I will discuss in a moment, the higher sentences have involved instances of intentional acts of violence which led to unintentional death. [ 82 ] The exception is perhaps the sentencing in R. v. Hariczuk , [1999] O.J. No. 3110 . Mr. Hariczuk was convicted of manslaughter in the death of his young son, who drank from an orange juice container in the fridge in which Mr. Hariczuk had stored his methadone.

The juice, known as Sunny Delight, was said to have been his child's favourite drink. Mr. Hariczuk was sentenced to two years less a day to be served in the community by way of CSO. [ 83 ] What is unusual about the sentence Hariczuk is that it involved no violence and no intentionality. Mr.

Hariczuk did have an extensive criminal record, and it is not for this court to comment further, except to say that the case is not binding as a precedent for an appropriate length of sentence for an unintentional non-violent act causing the death of a child. [ 84 ] Taking into account all of the case law put before this court for review, I find that the range of sentence for non-violent, unintentional acts leading to the death of an infant is somewhere between nine months in the case of Medeiros , to two years in the case of Hariczuk .

Other more violent conduct leading to the death of an infant has attracted a range of sentencing from a suspended sentence, ironically, to 30 months in custody. Many of these sentences were served in the community under a CSO. [ 85 ] In addition to bearing in mind the principles of sentencing, including that an offender should be subject to similar sentences for similar offences, I must also consider aggravating and mitigating circumstances. In this case, though, the very nature of the offence itself

is troubling. Ms. Bouvette's conduct leading to the death of I.T. was unintentional. It was negligence, to be sure, but it involved noviolence on her part. [86] In terms of the negligence, Ms. Bouvette's own cognitive limitations must be borne in mind, as well as her documented inabilityto handle stress. These factors place Ms. Bouvette on the very lowest rung of the ladder of moral blameworthiness for this offence; muchlower, clearly, than Ms.

Lam, for example. [87] Other mitigating factors include the guilty plea, which I accept was made as soon as possible following the preliminary hearingon the charge of second degree murder. [88] Moreover, there is no question that Ms. Bouvette regrets to the very core of her being her actions that day in May, and inparticular her extremely poor judgment when caring for I.T. Ms.

Bouvette acknowledged her responsibility in open court, and anyonepresent could have had no doubts about her sincerity. [89] Before leaving the issue of mitigating and aggravating circumstances, I do note the Crown's submission that an aggravatingcircumstance in this case is that this was a case of child abuse. I acknowledge that this case involved criminal negligence. I acknowledgethat it involved irresponsible decisions on Ms. Bouvette's part, but I place little weight on the concept that Ms.

Bouvette was engaging inchild abuse that day. [90] Bearing all of these factors in mind, I find that an appropriate sentence in this case for the charge of criminal negligence causingdeath is 12 months, to be followed by a period of probation for two years. I will discuss those conditions after I deal with Ms. Bouvette'ssentencing on the robbery charge. Sentencing on the Robbery Charge [91] The sentencing on the robbery charge raises several questions. First, what is the appropriate length, given the offence and theoffender, and the admonition in s. 718.2(

c) of the Code that when issuing a consecutive sentence, courts must take care to ensure that theresulting sentence is not unduly long or harsh. There is also the question as to whether a CSO is available. [92] During this sentencing hearing, counsel made submissions as to whether this offence was a serious personal injury offence, andwhether that required objective evidence of the use of serious violence in the commission of the offence. Those submissions arepredicated on the particular wording of s. 742.1 of the Code. Although that

section has now been amended, at the material time itprovided that a court could grant a sentence to be served in the community under a CSO unless, among other things, the offence was aserious personal injury offence. [93] For the purposes of this sentencing, the relevant portion of s. 752 of the Code provides that: "serious personal injury offence" means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentenced to imprisonment for ten years or more . . . [94] Mr. Gelber submits that there the phrase "the use or attempted use of violence against another person" ought to be interpreted asrequiring some objective evidence of serious violence or endangerment which was not present in this case.

For that reason, he submitsthat a CSO is available for the robbery charge. [95] In R. v. Neve, (1999) 17 CCC (3d) 97, the Court of Appeal held just that, in the context of a dangerous offender hearing.However, following an exhaustive discussion of s. 752 and the rules of statutory

interpretation in R. v. Goforth, 2005 SKCA 12 ,[2005] 193 CCC (3d) 354, the Manitoba Court of Appeal respectfully declined to follow the Alberta Court of Appeal in Neve. [96] The court in Goforth held at paragraph 81 and 82 that: [81] In light of the fact the term "serious personal injury offence" as defined in s. 752(

a) operates in relation to both ss. 753 and 753.1,it might be worth noting that the implied addition of words such as "serious" or "seriously" to the definition of the term contained in s.752(

a) invites uncertainty, even intractable difficulty, in the application of the term. To add words such as these by implication is toinvite the question of whether the same degree of violence or endangerment required in respect of dangerous offender proceedings is alsorequired in respect of long-term offender proceedings. Logic would suggest otherwise, for the sentence reserved for the long-termoffender is a lesser sentence compared to that reserved for the dangerous offender.

But to search for greater or lesser degrees ofseriousness in relation to violence or endangerment for this purpose is to search in vain. [82] In conclusion, [the court was] of the opinion the definition of the term "serious personal injury offence" in s. 752(

a) does notimply "the use or attempted use of [serious] violence against another person", [or] in the case of clause (i), or "conduct [seriously]endangering or likely to [seriously] endanger the life or safety of another person", as the case of clause (ii). [97] I am convinced that the reasoning in Goforth accords more closely to the wording in the Code and to the intention ofParliament. It accords with the governing principles of statutory

interpretation, which is that words and phrases are to be given their plainand ordinary meaning. [98] In my view, the conduct of Ms. Bouvette, whatever her personal circumstances, met the definition of violence under s. 752 of

the Code . She had a knife. She brandished the knife and she threatened to use it while doing so. Her conduct was, in every way, assaultive. She is fortunate in that the three young persons did not feel threatened by her, and everyone is fortunate that nothing more violent happened. These facts do not detract from the violence inherent in this act. [ 99 ] I am satisfied that this offence, even in these circumstances, is one that should not be addressed through a CSO.

What remains to be determined is the appropriate length of sentence, bearing in mind the range of sentencing for this offence, the mitigating and aggravating factors, and Ms. Bouvette's personal circumstances now and at the time of the offences. I must also keep in mind that she has been given a consecutive sentence today on the charge of criminal negligence causing death. [ 100 ] The Crown submits that the appropriate sentence for Ms. Bouvette for the robbery is, as I have said, two years. In saying so, the Crown acknowledges that Ms.

Bouvette has made a guilty plea, but points out that the robbery was planned, that Ms. Bouvette had on her person a weapon, that she committed this offence while on bail for what was at the time a murder charge, that she threatened to use the weapon, that the robbery took place at a convenience store, and that while reasonably youthful, Ms. Bouvette was by no means a young offender. [ 101 ] The Crown submits further that the sentence could be longer, but for the fact that no one was hurt, the weapon was not used, and the victims, three young persons working in the store, convinced her to leave.

It appears to have been a half-hearted attempt at a robbery at best. [ 102 ] In regard to the length of sentence, the Crown relies on several cases. In R. v. Emerson , [1994] B.C.J. 1316 (BCCA) the Court of Appeal reduced a three-year sentence imposed on Mr. Emerson for robbery to two years less a day. In a somewhat bizarre case, Mr. Emerson brandished a knife after having been caught shoplifting, thus elevating the offence to robbery. He did have a substantial record, including a conviction for robbery prior to the offence at issue on appeal. In that first conviction, Mr.

Emerson had been sentenced to four months in custody. [ 103 ] In R. v. Bell , the accused Ms. Bell was sentenced to two years to be served concurrently on two robbery charges, and one year each on two other counts of using an imitation weapon. At issue on appeal in the Bell case was whether or not the two-year sentence for one of the robberies was appropriate or fit. [ 104 ] Ms. Bell came before the court with a substantial criminal record at 38 years of age. In committing the robbery at issue, Ms.

Bell had walked into a service station late at night, armed with an imitation pellet gun that nonetheless looked real. After pointing it at the stomach of a lone employee, she demanded and received cigarettes and money. [ 105 ] In upholding Ms. Bell's sentence of two years in custody on the robbery charge, the court quoted from its reasons in R. v. Brogan ,

(1999) BCCA 278 at paragraph 10 as follows. It said: We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years.

The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr.

Brogan's situation exactly, none could. [ 106 ] The court in Bell ultimately concluded that given the use of a disguise, the presence of a gun, even though an imitation, and Mrs. Bell's extensive criminal record, as well as her steady pattern of criminality which was escalating, that specific deterrence, general deterrence, and the protection of the public overrode concerns for her rehabilitation in that case, thus making the two-year sentence a fit sentence. [ 107 ] In R. v. Reedel , 2006 BCCA 435 , a case also involving the robbery of two convenience stores, Mr.

Reedel's sentence of two years less a day for a second robbery to be served consecutively with the sentence of 18 months for his first robbery was upheld. Again, even despite the guilty plea, the fact that Mr. Reedel committed both robberies while on bail for an assault charge, and the vulnerability of convenience store clerks, among others, led the court to uphold his sentence. [ 108 ] Unlike the circumstances in Bell and Reedel as examples, I am not convinced on balance that Ms.

Bouvette today represents a danger to the public, even though she did commit the robbery while on bail and may have represented a danger to the public at that time. Before these charges, Ms. Bouvette possessed a minor youth record. After these charges, particularly the charge of second degree murder, the course of her life changed considerably. [ 109 ] Crown does not dispute that though Ms. Bouvette had a history of significant drug and alcohol abuse, she had a lengthy period of sobriety during which time she was devoted to raising her children as a single parent.

Her counsel submits that after causing the death of I.T., with the attendant criminal charges, Ms. Bouvette's life fell apart, and that that must be seen as the underlying cause of her subsequent destructive behaviour. [ 110 ] After being charged, Ms. Bouvette, as I have said, lost custody of her children, found herself, I am told, homeless for a brief period of time, was most certainly demonized in the community, and commenced self-medicating with drugs and alcohol in earnest. [ 111 ] She committed the robbery admittedly to get money for alcohol, so that she would not have to suffer the effects of withdrawal.

The robbery was not the most sophisticated undertaking. It was planned, in the sense that Ms. Bouvette placed a sock-like mask over her face, but otherwise it would have been obvious to store clerks that she was a female. She had a knife, so again there is some evidence of planning, but as I have said, the three young persons in the store did not seem to feel threatened by her. [ 112 ] It is clear that a sentencing for the robbery of a convenience store should have, as at least one of its objectives, the objective of deterrence.

I do not think nor is it seriously argued that specific deterrence should be an objective, but the sentence must send a message to the general public that the courts will impose custodial penalties for robbery, particularly in the context of service stations and

convenience stores, where store personnel are so vulnerable. [ 113 ] That having been said, the length of sentence must be determined in accordance with aggravating and mitigating circumstances and, as I have alluded to earlier, in this case I must also bear in mind that Ms. Bouvette is at the same time being sentenced for criminal negligence causing death. The two sentences being consecutive cannot be so long as to become unduly harsh. [ 114 ] Moreover, I am convinced that Ms.

Bouvette's rehabilitation and reintegration back into the community and into her role as the parent of her children must be given significant weight in this sentence as well. The aggravating factor in regard to the robbery is of course the use of a mask which signals some planning, however rudimentary it was in this case. [ 115 ] The mitigating factors include the guilty plea, the impulsivity of the offence, the lack of violence, the lack of sophistication of the caper, the fact that Ms.

Bouvette was talked out of carrying out the offence, her lack of any related criminal record, and the stressors occurring in her life at the time. [ 116 ] As with her responsibility for the death of I.T., Ms. Bouvette takes full responsibility for this offence and is quite clearly remorseful. [ 117 ] The low end of the range for offenders with longer and even related records is two years less a day. However, I note that even Mr.

Emerson received only four months for his first conviction on robbery, but without knowing the facts in that case, it is impossible to take much from that. [ 118 ] In other cases, courts have sentenced offenders to 18 months in custody for robbery, which was the sentence given to Ms. Bell on one of her robbery charges. [ 119 ] While the courts must stay within the range of sentencing for similar offences, courts are not bound to stay exactly inside the range. In this case, bearing in mind the aggravating and mitigating factors, Ms.

Bouvette's sentencing on the criminal negligence charge, and the primacy I place on her rehabilitation, which itself will ensure the key purpose of sentencing is met, I find that an appropriate sentence for the charge of robbery is 12 months. [ 120 ] Ms. Bouvette has been in custody now since May 7, 2012. She was originally placed in custody when her bail on the second degree murder charge was revoked as a consequence of various breaches. On May 31, 2012, the information charging her with the robbery was sworn, so Ms.

Bouvette has been in custody on both charges since May 31, 2012. [ 121 ] In sentencing submissions, the court learned that since being in custody, Ms. Bouvette has taken advantage of a number of courses; these include Food Safe training, handling chemicals and other substances responsibly, emotions management courses for women, essential skills for success, Learn to Learn for Life, nutrition and health courses, communications skills, and housing need courses from ESS. [ 122 ] Ms. Bouvette has been incarcerated at Alouette for most of her time in custody. By all accounts, her detention has been difficult.

Due to the nature of the charge involving the death of I.T., she was, unsurprisingly, the focus of negative attention by other inmates. Mr. Gelber advised that the social isolation Ms. Bouvette suffered from prior to entering custody has been magnified in the institution. [ 123 ] Ms. Bouvette has spent a considerable part of her time in protective custody, which is obviously much more difficult. [ 124 ] In these circumstances, I am convinced that this is an appropriate case in which to credit Ms. Bouvette not only with time served, as I must, but to credit her with time and a half. As such, Ms.

Bouvette should be credited with having served 18 months at this juncture. [ 125 ] Ms. Bouvette, at this point I must ask you to please stand for your sentencing. [ 126 ] Ms. Bouvette, on the charge of criminal negligence causing the death of I.T., I sentence you to 12 months in custody. [ 127 ] On the charge of robbery, I sentence you to 12 months in custody, to be served consecutively with your sentence for criminal negligence causing death. [ 128 ] Overall, you are hereby sentenced to two years in custody on these charges. I have credited you with time served in the amount of 18 months.

You must therefore still serve a period of six months in custody. [ 129 ] Upon your release from custody, you will be placed on probation for a period of two years. The probation order will apply to both informations. [ 130 ] The conditions of your probation are as follows: [ 131 ] First, the statutory conditions: You must keep the peace and be of good behaviour during the period of probation. You must attend court when and if required to do so by the court.

You must provide the probation officer with your address and not change your address, name, or occupation during the period of probation without first advising the probation officer. [ 132 ] You must report to a probation officer.

You will do that by telephone within 48 hours of your release from custody, and thereafter as directed by the probation officer and in the manner directed by the probation officer. [ 133 ] You will, during the period of probation, take counselling as assessed and directed by the probation officer, and you will complete that counselling to the satisfaction of your facilitator, as well as your probation officer. [ 134 ] During the period of probation, you are prohibited absolutely from the consumption of alcohol or drugs; that is to say non-prescription drugs or drugs that are not prescribed for you by a medical physician.

[ 135 ] You are prohibited during the period of probation from entering any premises, the primary commodity for sale of which is alcohol. That includes bars, taverns, pubs, and liquor stores. [ 136 ] During the period of probation, you are to have no children in your care other than your own children who are under the age of six. [ 137 ] You are to have no weapons in your possession as those are defined in the Criminal Code .

You may not have a knife in your possession, except as may be necessary for the purposes of work or for the consumption of food. [ 138 ] You are also prohibited from going to 1920 Kootenay Street North, which is the Fas Gas station. [ 139 ] Aside from the probation order, you are also prohibited under s. 109(1) of the Criminal Code from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance from today's date, which prohibition will end not earlier than 10 years after your release from custody on these charges. [ 140 ] In addition, you are prohibited from possessing any firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 141 ]

Section 491 of the Criminal Code requires that I order you to surrender any such weapons that you may have in your possession, and if you do have those in your possession, they must be surrendered to police within 24 hours of your release from custody. [ 142 ] In addition, s. 344 of the Criminal Code is a primary designated DNA offence. Therefore, pursuant to s. 487.051(1)(

a) of the Code , I order that you provide such samples of your bodily substances that are reasonably required for DNA analysis. This must be done no later than 10 days from today's date. [ 143 ]

Section 220 of the Code provides for a discretionary DNA order, but I decline to grant that order on that charge. [ 144 ] In the circumstances, I will also waive the victim fine surcharge on both charges. [ 145 ] I am just now going to ask counsel if there is anything in addition? [ 146 ] MR. GELBER: Not from my side, Your Honour. [ 147 ] MS. SWANSON: No, that's fine, Your Honour. [ 148 ] THE COURT: All right. Thanks very much for your helpful submissions. (REASONS CONCLUDED)