R. v. M.L.D.D., 2023 BCPC 197

Citation: R. v. M.L.D.D. 2023 BCPC 197 Date: 20230724 File No: 72050-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. M.L.D.D. Ban on Publication –

Section 486.5(1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.A. YOUNG Counsel for the Crown: A. Burns Counsel for the Defendant: C. Terepocki Place of Hearing: Chilliwack , B.C. Date of Hearing: May 16, 2023 Date of Judgment: July 24, 2023

INTRODUCTION [1] Ms. D. has plead guilty to the following two counts: Count 2: from the 24th day of April 2020 to the 30th day of June 2020, inclusive, at or near Chilliwack, in the Province of BritishColumbia, as a parent, did fail without lawful excuse to provide necessaries to life to E.D-M., a child under the age of sixteen years, andso endangered the life of E.D-M. or caused or was likely to cause the health of E.D-M. to be endangered permanently, contrary to section215(2)(

a) of the Criminal Code. Count 4: from the 24th day of April 2020 to the 30th day of June 2020, inclusive, at or near Chilliwack, in the Province of BritishColumbia, as a parent, did fail without lawful excuse to provide necessaries of life to S.D-M. a child under the age of sixteen years, andso endangered the life of S.D-M. or caused or was likely to cause the health of S.D-M. to be endangered permanently, contrary to section215(2)(

a) of the Criminal Code. [2] Ms. D. plead guilty in November of 2022 and the matter was put over for the preparation of a Pre-Sentence Report (“PSR”), apsychiatric assessment and a Gladue report. All of which I have read and considered. [3] Ms. D. has no prior criminal record. [4] By way of joint submission, the Crown and defence are proposing a global sentence being a Conditional Sentence Order of twoyears less a day, in addition to a period of probation of 24 months, concurrent. Counsel agree that Ms.

D. faced rather uniquecircumstances at the time of the offences, such that a Conditional Sentence Order plus probation would be a fit sentence. Counsel haveprovided a list of agreed conditions with respect to the proposed Conditional Sentence Order and probation. [5] The Crown also provided a decision, being R. v. Peterson, (ON CA), to submit that it is open to the court toconsider a Conditional Sentence Order for an offence pursuant to s. 215 of the Criminal Code. [6] The relevant provision of s. 215 states:

(1) Every one is under a legal duty (

a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (

b) to provide necessaries of life to their spouse or common-law partner; and (

c) to provide necessaries of life to a person under his charge if that person (

i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse toperform that duty, if … (

b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of a person to whom the duty isowed or causes or is likely to cause the health of that person to be injured permanently.

(3) Every one who commits an offence under subsection (2) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction.

(4) For the purpose of proceedings under this section, … (

c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the ageof sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to providenecessaries of life for the child; … [7] The Crown has chosen to proceed by indictment, and so thus the maximum sentence is five years. CIRCUMSTANCES OF THE OFFENCE [8] The two victims were Ms. D.’s young children, E.D-M. and S.D-M., aged five and two at the time of the offences.

During theisolation period imposed during the COVID-19 Pandemics in the spring of 2020, Ms. D., a single parent, became distanced fromMinistry supports which had hitherto been offered to her by her social workers, distanced from her mother, and unable to cope withproviding her children with stability and most importantly basic nutrition as well as appropriate health care. The children began to starve

during the period of isolation occasioned by the COVID-19 pandemic. Ms. D. was not feeding her children in a proper fashion. [ 9 ] Ms. D. finally realized the severity of her children’s health condition. She called for medical help on her own. The children were taken to the local Chilliwack hospital where they remained for several weeks until their health improved. The children were in serious condition upon their admission to hospital.

The Crown submits the children were in danger of dying if they had not been admitted to hospital when they were. [ 10 ] The eldest child, E.D-M., is now in foster care, and the younger child, S.D-M., is currently in the care of Ms. D.’s mother. Ms. D. hopes to be able to reconnect with her children after the conclusion of the sentence, which in essence is being crafted as a four-year sentence, with counselling and much needed rehabilitation.

She now has considerable supports in the community, in particular from the Fraser Valley Aboriginal Children and Family Services Society, also known as Xyólheméylh . [ 11 ] Both counsel, by way of joint submission, argue that the service of the sentence in the community would not endanger the safety of the community, and would be consistent with the purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . Ms. D has complied with the terms of the original undertaking made on January 25, 2022. [ 12 ] Ms. D. has Indigenous heritage. Accordingly, a Gladue report was prepared.

She also has a number of mental health concerns, which were set out in the psychiatric assessment. As I have already stated, Ms. D. had been unable to cope during the COVID-19 pandemic lockdown, and given the combination of the pandemic isolation in conjunction with her mental health, she was unable to cope with looking after her children during the spring of 2020. [ 13 ] Ms. D. was 23 years of age at the time of these offences. She was the sole support for her two young children.

Her daughter S.D-M. was two years of age at the time, and her son E.D-M. was five years of age. [ 14 ] The COVID-19 lockdown period commenced at the end of March 2020. These offences occurred during that period, when Ms. D. was the sole provider for her children.

She had been supported by the Ministry of Children and Family Development (“MCFD”) prior to lockdown, but as a result of lockdown, the social workers were no longer able to attend to her residence in a consistent fashion because of their own internal policies regarding COVID-19, and the need for their own staff to isolate. [ 15 ] However, her social worker did attend her residence on April 24, 2020, and was not concerned about Ms. D.’s care of her children at the time. That particular visit occurred about one month after lockdown commenced. It was after that last visit that the situation went downhill for Ms.

D. and her children. [ 16 ] Then on June 30, 2020, Ms. D. called for medical assistance for her children. They were taken to hospital. Ms. D. was apprehended under the Mental Health Act . She too was taken to hospital. She spent a month in hospital under the Mental Health Act . [ 17 ] Ms. D. was also cooperative with the police. She provided an inculpatory statement as to what had occurred. That statement was not entered as an exhibit, but I have been informed by Crown that Ms. D. took full responsibility for what had occurred with respect to her children’s condition.

She disclosed that she would feed her children very little, being once every one or two days. So the children, in the result, became severely malnourished. The Crown advises the medical personnel who attended to the children were concerned that they would not likely have survived given the extent of their malnourishment. The children had a lengthy stay in hospital. They are now thriving in the care of their maternal grandmother and of the foster home. Their situation has improved considerably over the last two years. [ 18 ] Ms.

D. advised the police that she had locked her children in their bedroom, where the children spent most of their time. At the time, Ms. D. was a tenant living in a basement suite of a house. Her landlady lived upstairs, and when Ms. D. realized at the end of June, 2020 that something was indeed very wrong with her children, she sought the help of her landlady. Ms.

D. also called for medical help. [ 19 ] When the medics arrived, they saw the children in their bedroom covered in feces, their diapers were full of feces, and one child had hair around one of their fingers in such a manner that the child was losing blood flow to that finger. The situation was so severe that the children were immediately taken to hospital. The matter was reported to both the police and MCFD. [ 20 ] Ms. D. had been self-medicating during the period of lockdown.

She was overwhelmed by her mental health condition, but not to the extent that she could be classified as not guilty by reason of mental disorder. She was still able to speak appropriately with her social workers. [ 21 ] Support persons gave Ms. D. food for her family during the lockdown, but she was not able to deal with all the food she had been given. She simply allowed it to pile up uneaten. The authorities ultimately found the food piled up in her kitchen. [ 22 ] The difficulty Ms.

D. faced was that she did not have home help with her young children and was left completely alone and isolated during the pandemic lockdown, at least during the period of late April to June 30, 2020. No one was able to check in on her or able to provide family support, for example by way of a Family Support Worker, who might have been able to assist her with the care of her children. Her mother was also not involved during this difficult period. The COVID-19 lockdown created the perfect storm for Ms. D. in combination with her mental health.

All of these difficulties have been touched upon in the reports. [ 23 ] The hope is that Mrs. D. will be able to obtain therapeutic help over the course of the next few years, given the proposed terms for the two year less a day Conditional Sentence Order and the probationary period. She was a young adult, age 23 at the time, of First Nations heritage. She now has the support of the Fraser Valley Aboriginal Children and Family Services Society, hereinafter referred to as “FVACFSS”. [ 24 ] The Crown submits that he and defence counsel had extensive discussions about Ms.

D.’s history prior to the entry of the guilty pleas in November 2022. Defence counsel submits that Ms. D. always intended to plead guilty to these charges, but it took time for the discussions of counsel to occur and for the appropriate reports to be prepared once the pleas were entered.

[ 25 ] The Crown takes the position that this is a case involving a disadvantaged young woman who in essence decompensated in her basement suite during lockdown, and that given all of the quite unique circumstances, the Crown is not seeking a period of incarceration in jail. She decompensated during a period of about two and a half months, from April to June of 2020 to such a degree that she was no longer functioning in a proper manner as a parent. She was not able to care for her children’s basic needs. [ 26 ] I would now like to turn to the reports.

THE CIRCUMSTANCES OF THE OFFENDER Pre-Sentence Report [ 27 ] The report writer advised that Ms. D. is Indigenous on her biological father’s side, though she possesses little knowledge of that ancestry. Her father was from a First Nations Community in Alberta. It is not known if her father or members of his family attended a residential school. Her counsel has also advised that there is some Indigenous heritage on her mother’s side. [ 28 ] Ms. D. is now 25 years old.

She appeared to blame a lack of Ministry support during the pandemic, a relationship breakup, not taking her medication and her poor mental health, as the reasons for what happened. According to the report writer, Ms. D. expressed minimal remorse for her children’s condition. [ 29 ] Ms. D. recalled having minimal exposure to Indigenous cultural events as a child. While in school in Chilliwack, she was able to attend Halq'eméylem language classes and drumming. At 16 she attended a powwow and an anger management course through a Stó:lō Nation service agency.

She had been able to attend smudging ceremonies. [ 30 ] Ms. D. has expressed interest in attending Indigenous related counselling as part of this sentence. She believes that if she can connect with her culture she would live a more enriched life. She is currently residing in the [omitted for publication] community. [ 31 ] Ms. D. experienced a variety of trauma and different types of abuse during her life, such as domestic violence, her mother’s suicide attempts, school bullies and verbal, physical and sexual abuse. She also has a variety of physical ailments.

She suffers from ADHD, general anxiety disorder and borderline personality disorder. She began consuming alcohol in her adolescence, and was drinking during the time of these offences. She has ceased consumption months ago, but she has not sought out any professional help to support her sobriety. [ 32 ] She has difficulty regulating her emotions. She tends to live her life on impulse as she does not know how she will feel from one day to the next. She is upset with herself for what she did to her children and blames herself for how the relationship with her children’s father ended. [ 33 ] Ms.

D. has poor coping skills, which led to suicidal tendencies and self-harming behaviour. She has been referred to counselling but has not yet attended. She has also had difficulty following through with appointments with the Indigenous outreach nurse and case manager at the local mental health. [ 34 ] The PSR also described the trauma and difficulty Ms. D. had growing up. Her parents separated before she was born. She never met her father. He is deceased. She described growing up in difficult circumstances because her mother engaged in multiple abusive and casual relationships.

She had a transient life as a child as her mother would move her and her sisters around to reside with a new partner. In addition to witnessing domestic violence, Ms. D. was verbally, physically and sexually abused by one of her stepfathers. [ 35 ] She entered the foster care system at age 13. She remained there for three years. At age 17, she was residing with her children’s father. Within that relationship she experienced domestic violence. She disclosed being sexually assaulted numerous times during her life. There was also a time when she was escorting in an effort to support her children. [ 36 ] Ms.

D. was bullied at school. She spent much of her childhood at Vancouver Children’s Hospital due to her kidneys not functioning. She has five siblings, although only three are full siblings. She lost her older brother when he was five years of age. She has had sporadic contact with her mother and sisters. However, she has regular contact with one older sister. She considers that sister to be her best friend. [ 37 ] Ms. D. has only the two children who are the victims of these offences. S.D-M. is residing with her maternal grandmother, and Ms. D.’s son, E.D-M. is in a staffed resource group home.

There have been discussions about transferring E.D-M. to Ms. D.’s mother’s care but that has not as yet occurred. Ms. D. has not seen her children since June 2020 when they were removed by MCFD. [ 38 ] The child, E.D-M., was diagnosed with multiple health issues, plus feeding issues, prior to the offence. Ms. D. had worked with a pediatrician for dietary recommendations but she would miss appointments and had difficulties following recommendations. E.D-M. currently functions at a two-year-old level and is non-verbal. He also suffered seizures in September 2020 and lost the use of language.

Their social worker confirmed that Ms. D. is not to have contact with the children until court proceedings are concluded. However, E.D- M. sees his sister S.D-M. on a regular basis. [ 39 ] Ms. D. did express an interest in moving eventually to [omitted for publication], British Columbia, with her partner. However, that proposed move should not be accomplished until she has accessed the supports she needs in the Chilliwack community, or at the very least, until she has shown progress and been assured that the same type of supports are available to her in [omitted for publication]. [ 40 ] Ms.

D. left school by Grade 9. She attended different schools due to moving numerous times. She has held various casual employment over the years. She has not been employed for the last three years. She is on Persons with Disability Benefits and may be eligible to apply for the support of Community Living. Ms. D. owes monies to credit card and phone debt. [ 41 ] Ms. D. described several diagnosis and health concerns. She described symptoms of anxiety and depression for as long as she can remember. She has suffered from a concussion, and has been diagnosed with ADHD. She has been diagnosed with general anxiety

disorder and complex post-traumatic stress disorder. She was placed into the psychiatric ward at the local hospital on June 30, 2020. She was diagnosed with borderline personality disorder. She has other health issues. Ms. D. advised she hates herself for what she did to her children, and often starves herself as punishment. She suffers shame and guilt for what happened to her children. [ 42 ] Ms. D. began self-harming at age 13, which included cutting herself. She has had multiple suicide attempts prior to these offences. She no longer self-harms. She has been referred to trauma counselling.

She also met with the Indigenous outreach nurse at mental health, but Ms. D. missed many appointments and stopped responding, so her file was closed in August 2022. Forensic Psychiatric Services are also available to her. [ 43 ] Ms. D. began consuming alcohol at the age of 11, which escalated to daily consumption by age 13. She consumed considerable alcohol during the time of these offences, although she was sober on the day of her apprehension. She has ceased alcohol consumption. She does not consume any illicit substances.

She does consume cannabis daily to help manage pain, and thus counsel are seeking an exception for her use of cannabis in the Conditional Sentence Order and the probation order. Ms. D. is open to attending a treatment facility. [ 44 ] The youngest child, S.D-M. spent four weeks in the hospital following the offence. After her release, she went into foster care with her brother. She attended Sunny Hill Centre in Vancouver and received recommendations to attend speech therapy. She suffered from food insecurities. She would overeat in the foster home. She also displayed sexualized behaviour.

She displayed aggressive behaviours and caused damage within the foster home for the first couple of months, but this behaviour has decreased. She is quite often ill. She has been residing with her maternal grandmother since March 2021, with the assistance of respite care. She is on a wait list for speech therapy. [ 45 ] E.D-M. was in the hospital for six weeks as his condition was very poor, due to a combination of existing health concerns and the malnutrition he suffered. He suffers from food insecurities. After his release, he displayed sexualized behaviours and self-harming tendencies.

E.D-M. is immunocompromised and is often ill. He has both an occupational therapist at school in addition to a play therapist. He is working on trauma and self-harming behaviours. He has full-time support at school and in the group home. [ 46 ] FVACFSS will begin working with Ms. D. to begin visits with both children upon the conclusion of the sentencing. However, FVACFSS will seek advice from a psychologist first, as there is a concern as to how E.D-M. may react with seeing his mother. [ 47 ] I note that Ms. D. has complied with the terms of her release order. She has reported as directed, without issue.

She advises she is willing to report to a probation officer, which includes engaging in ongoing conversation about cognitive behavioural techniques. Ms. D. has advised that she is willing to make changes and to work towards a prosocial lifestyle. [ 48 ] Ms. D. appeared to accept partial responsibility and acknowledged her wrongdoings in failing to provide proper nourishment and care to her children. She lost the required community support during the pandemic lockdown. She also shifted partial blame to the relationship breakup with the children’s father.

She did not take her medication for anxiety, mood stabilization and PTSD during the offence period. [ 49 ] She felt she was an unfit mother at the time, and sought out help from her social workers. She did not feel she was receiving adequate supports from them. She was unable to cope with her own declining mental health, sleeping until early evening. In the result, the time between her children’s meals grew unstable. She has expressed remorse. She often punishes herself by starving herself. She wants to connect with her doctor as well as counselling resources. However, Ms.

D. struggles to follow through with making the required calls and keeping appointments. The Psychiatric Assessment [ 50 ] A report was prepared by Forensic Psychiatric Services. [ 51 ] Ms. D. did not have much information about her Indigenous heritage. Her childhood was marked by significant maladjustment, including the sexual abuse of her older sisters, experiencing abuse from her stepfather, witnessing abuse from her stepfather towards her mother, the mental instability of her mother, being bullied in school, and having numerous foster home placements starting at age 13.

She became pregnant in Grade 9 and stopped attending school. She has the two children with her ex-partner, from whom she separated one year before the offences. He was verbally and physically abusive to her. [ 52 ] A psychological-vocational assessment report from 2019 included a diagnoses of post-traumatic stress disorder and generalized anxiety disorder, low average range of intellectual abilities, and significant weaknesses in working memory and processing speed. She disclosed a history of fetal alcohol spectrum disorder (“FASD”).

It was recommended to her that she submit an application to Community Living BC that provides support services for persons with FASD. [ 53 ] Ms. D. explained that around the time of the offences, she drank hard liquor and a 12-pack of coolers almost every night. She would mix the alcohol with her medications. She expressed an interest in attending a treatment facility. [ 54 ] She reported a history of alcohol use starting at age 11. She was frank in saying that she experiences urges and cravings, and attributed those urges to the fact that past use of alcohol was associated with positive emotional states.

She reported a history of daily cannabis use. [ 55 ] After her apprehension, Ms. D. was admitted to the local hospital for a month. She was treated with antidepressants and low- dose antipsychotic risperidone medication. Her discharge diagnosis was that she has unspecified depressive disorder, unspecified anxiety disorder, alcohol use disorder, cannabis use disorder, and borderline personality traits. She was placed on medication. [ 56 ] In April 2022, Ms. D. underwent a comprehensive community psychiatric assessment at Surrey Urgent Care Response Centre with Dr. Leung. Ms.

D. was diagnosed with borderline personality disorder, post-traumatic stress disorder, cannabis use disorder, alcohol use disorder and unspecified psychotic disorder. She was referred to local mental health. The plan was to restart Risperidone

and to continue medications with her family doctor. However, Ms. D.’s engagement with local mental health services has been poor. [ 57 ] Ms. D. reported that after her hospital admission in June 2020, she continued to be prescribed medications by her family physician, but that her compliance with medication was limited when she was also consuming alcohol. She discontinued her medications in 2022. [ 58 ] Ms. D. lives in a house which she shares with others as well as her boyfriend. She receives a disability income. Her finances are strained.

She and her boyfriend are dependent upon her income while he looks for a job. She is not often in contact with her family doctor. She reports contact once or twice a month with her social worker from FVACFSS. However, her file with local mental health was closed for her lack of engagement with them. [ 59 ] When she was asked about the next year, Ms. D. agreed that she would like to take her medications properly, stop drinking and be engaged in psychosocial/rehabilitative programs.

She reported a decline in her mental health in the months leading to the offences, characterized by depression, anxiety and heavy alcohol use. She reported a series of unstable relationships. She lacked motivation to attend to her and her children’s daily needs. She had become overwhelmed with caring for her children. She acknowledged that alcohol played a major

part in these offences. [ 60 ] No risk assessment was prepared, as it had not been requested. Such risk assessment would have been helpful in considering her future risk to reoffend. The Gladue Report [ 61 ] Ms. D. self-reported that she is a non-registered status member of the Stoney Nakoda Nations. The largest such group lives in the community of Morley, Alberta. [ 62 ] As a child and youth, Ms. D. experienced poverty, physical, mental, emotional and sexual abuse, instability, a lack of education and the normalization of substance use and violence.

She lived primarily with her mother in an unstable and abusive environment. She also lived in foster and group homes. She was disconnected from the history and culture of the Stoney Nakoda people. [ 63 ] The Gladue report explored the systemic and background factors unique to Indigenous offenders. While Ms. D. self-reported as a non-registered status member on her father’s side, her mother self-identified as Indigenous from the St. Boniface area of Manitoba. Her mother believes that her own mother may be from Cree and Metis heritage. Her mother lived in a Catholic orphanage for three years.

She was in foster care. She suffered mental, emotional, physical and sexual abuse. Her mother indicated that she suffered from intergenerational trauma, as does Ms. D. [ 64 ] Her mother reported that Ms. D.’s father was a status member, that his parents went to residential school, and that their children all lived in foster care. Her mother also indicated that she lost a son at the age of five with ARC, being a gene defect. E.D-M. also suffers from similar symptoms. [ 65 ] Her mother advised that her husband left when she was pregnant with Ms.

D., because she had charged him with sexually molesting her eldest daughter. She never saw her husband again. Ms. D. has never met her father. [ 66 ] Ms. D. reported that she grew up in the Jehovah Witness faith. She was restricted from learning about her Indigenous heritage. From the ages of 13 to 17 she lived in group and foster homes separate from her sisters. [ 67 ] Ms. D. was pregnant with her son at the age of 17, and with her daughter at the age of 19. Ms. D. explained that a family enhancement worker at FVACFSS helps her to get to meetings and doctor appointments and to assist her with any other needs.

Ms. D. explained that her worker helps her to stay grounded. [ 68 ] Ms. D. described how borderline personality disorder affects her, and that she struggles to get things done. She does not have much motivation and becomes easily depressed. She is aware that the Stó:lō Nation has many services to offer her. She agreed she will attend those services if she remains in the Chilliwack area. [ 69 ] Ms. D. is not looking for work, but is in an employment readiness program. She tries to avoid isolation. She described that she takes the bus to Stó:lō Nation to participate in the work readiness program.

Her career goal has changed over time. She sees herself as helping people given all the difficulties she has been through. [ 70 ] She explained the health difficulties that her son E.D-M. feces. She explained that her son has brain defects and has tested with autism. Her son’s health has overwhelmed her. [ 71 ] Her mother described how Ms. D. struggles to stay connected with people who are trying to help her. Her mother wants to see her daughter get the help she needs. Her mother also wants her daughter to be accountable for what she has done.

Her mother is committed to caring for the children, while giving her daughter time to heal. She would like to see her daughter get into treatment. [ 72 ] Ms. D. explained how she does not like living in a house with six people. She finds the house to be crowded. She had considered a move to the Sunshine Coast. [ 73 ] She advised that she quit school at age 14, and that she has no employment history. Her career goal has changed over time. She understands that she has been diagnosed with fetal alcohol spectrum disorder, ADHD and borderline personality disorder.

She had been prescribed medication for those conditions. She was 11 years of age when she started to consume alcohol and smoke marijuana. [ 74 ] She indicated that she is working with the staff from FVACFSS. It would appear from the Gladue report that Ms. D. is prepared to continue with those services. Ms. D. has never lived or visited her Indigenous community and does not know the cultural practices of her Indigenous heritage.

[75] Her mother did indicate that her paternal family survived the residential school system. However, she did not know the name ofthe school or for how long the paternal family members attended. [76] Unfortunately, Ms. D. was not available to complete the Gladue report. Thus, she was not available to share her understanding ofthe offences. [77] The Gladue

summary referenced the impact factors that affect Indigenous people, and how those factors are present in Ms. D.’slife. [78] The Gladue report sets out a healing plan and restorative justice considerations for Ms. D., and in particular the resources thatwould be available to her going forward. Her family enhancement worker will assist her to connect with the recommended resourcesthrough Stó:lō Nation. It is apparent from the report that it is important for Ms. D. to remain connected with Stó:lō Nation and not toattempt relocation until she has satisfied many of the goals articulated in the reports.

SUBMISSIONS [79] The Crown submits that the applicable principles of sentencing in this matter are denunciation as well as rehabilitation. TheCrown submits that specific and general deterrence are of lesser significance given how the events unfolded. The Crown argues that theproposed sentence will address not only the sentencing principles but also will assist Ms. D. in dealing with her mental healthdifficulties. The proposed sentence would take into account the Gladue factors set out in s. 718.2(

e) of the Criminal Code, being that allavailable sanctions other than imprisonment should be considered for all offenders, with particular attention to aboriginal offenders. TheCrown emphasizes the unique features of the offences, and most especially Ms. D.’s mental health in the unprecedented context of theCOVID-19 lockdown, which resulted in there being no or limited community supports available for her. [80] The Crown submits that Ms. D. eventually realized that her children were in grave medical difficulty, and so she called theparamedics on her own, in conjunction with advising her landlady of the situation.

She was cooperative and frank with the police aboutwhat happened. She provided an inculpatory statement to the police. Ms. D. has also complied with her release conditions, whichincluded not being around her children. She was originally released on an undertaking in 2022. I cancelled that undertaking on May 16,2023 to make an exception that she have no contact with her children except with the written permission of the FVACFSS. Counsel areasking that similar wording be incorporated in the Conditional Sentence Order, as well as in the Probation Order. [81] The Crown was content to vary the bail given that Ms.

D. is now showing healthier behaviour. As defence counsel submitted,her mental health has improved over the course of the last year. She has also shown that she has taken this sentencing proceedingseriously. Her remarks in court show an understanding of her situation and that of her children. [82] The Crown also submits that in mitigation, Ms. D. has plead guilty to these charges. The Crown submits that the trial wouldhave been lengthy, involving a substantial number of witnesses. It was a complicated case requiring significant disclosure.

Crown anddefence had extensive discussions about a guilty plea from the outset. The guilty plea was entered at the first reasonable opportunitygiven the complexity of this matter. [83] The Crown submits that both counsel have proposed stringent conditions as part of the Conditional Sentence Order, including acurfew, extensive counselling, further assessments if requested, and a Rogers Order. Those terms are also to be included in the ProbationOrder. The proposed terms are all part of the joint submission. Neither counsel see the need for Ms. D. to wear a monitoring bracelet asone of the proposed terms.

The Crown is content that she will comply with the curfew being proposed without the need for electronicmonitoring. The Crown articulates that in many ways, not only are the children victims, but Ms. D. herself has been a victim of her owndifficult childhood. [84] The Crown relied on R. v. Peterson. The accused in that decision was convicted of failing to provide the necessaries of life to hisfather, thereby endangering his life. He was sentenced to six months in jail, in addition to two years’ probation. He appealed thedecision. He invited the court to consider the imposition of a Conditional Sentence Order.

The Court referred to R. v. Proulx, 2000 SCC5 , [2000] 1 S.C.R. 61, in which Lamer C.J.C. rejected any presumption that a particular category of offence is excluded fromthe conditional sentencing regime. The sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. While the majority upheld the jail sentence, the dissenting reasons by Borins J.A. held that the sentencing objective ofgeneral deterrence could have been achieved by the imposition of a conditional sentence. The appellant was not a danger to thecommunity.

Borins J.A. did articulate at paragraph 75 that the imposition of a prison sentence is necessary to denounce the physicalabuse of young children, accompanied by the failure to provide medical attention. The Crown relies on the dissenting judgment tosubmit that in the unique circumstances of this case, it is open to the court to impose a Conditional Sentence Order. [85] Defence counsel concurs with the Crown submissions. It is apparent that counsel have spent considerable time considering theproposed terms of a Conditional Sentence Order and probation. Defence counsel submits that Ms.

D. now has a number of supportworkers to help her, including a family enhancement worker. She can meet with those supports on a frequent basis. She understands theneed to seek that support. [86] The support workers will connect Ms. D. with obtaining housing, education, parenting classes and job opportunities. Ms. D.expresses an interest in finishing her schooling and eventually obtaining employment. It is acknowledged that Ms. D. has many goals toachieve over the next few years. [87] Ms.

D. described how her relationship with her mother is stable, that she and her mother do make time for one another, andconsequently that her relationship with her mother has improved. She seems to be aware that her own mother also requires support. [88] Defence counsel submits that Ms. D. has Indigenous heritage from both of her parents. There are a number of Gladue factors toconsider. [89] Before the COVID-19 lockdown, Ms. D. did receive help from Wilma’s Transition Society in Chilliwack. She had a support

worker at the transition house, as well as a social worker. She also had a Family Enhancement Worker, but for some reason lost that support worker. Then COVID-19 lockdown occurred. At that point Ms. D. did not have the necessary supports she required. [ 90 ] In addition to her mother and children living in Chilliwack, she has a maternal grandmother who resides in Hope. Her older sisters are 29 and 27. She has a younger step-sister who is 12. Her son, E.D-M., is currently in foster care and not at present able to live with his maternal grandmother.

However, he does visit his sister at his grandmother’s home. [ 91 ] Ms. D. is currently living in stable housing in a residence with others. However, she wants to find other more appropriate housing. She is aware that both of her children are now doing well. Her son is improving and becoming more verbal. The children are happier, and as I have indicated, they visit one another. She is aware that her daughter has developed a special bond with her 12-year-old sister, as a result of both children living with her mother. [ 92 ] Ms. D. has a partner who is supportive of her. He too has his own challenges.

The hope is that Ms. D. can reside in the Chilliwack area, in order for her to receive the supports she will require going forward. She has also found transportation difficult given the bus strike. [ 93 ] Ms. D. is conscious that she requires extensive counselling to deal with her past challenges, and that she needs to finish her education to obtain training to find gainful employment. She is also aware that the proposed plan for her future will take some time to complete. She needs considerable community supports in order to assist in her rehabilitation. [ 94 ] Defence counsel submits that Ms.

D. is a good candidate for rehabilitation. Counsel submits the incident involving her children was an isolated one occurring over a two-month period during the pandemic lockdown. In mitigation she has plead guilty without the need for a lengthy trial. Counsel submits that Ms. D. has made good strides over the course of the last year. In that sense there has been an upward positive trajectory, which will only be enhanced as time passes. Ms. D. is prepared to do any assessments that may be required of her. [ 95 ] Ms.

D. now recognizes she was in a dark dissociative state at the time of the pandemic, and not only did she suffer, but her ability to care for her children suffered. Ms. D. now seems to appreciate that she must look after herself, find the help she needs, and work slowly towards reconnection with her children over a lengthy period of time. She wants to be back in her children’s lives in some capacity. She appears to understand that this transition will be a work in progress.

ANALYSIS [ 96 ] The Crown and defence have proposed a joint submission of a two year less a day Conditional Sentence Order plus a period of 24 months’ probation. Counsel have in essence relied upon the decision of the Supreme Court of Canada in R. v.

Anthony-Cook , 2016 SCC 43 in support of this joint submission. [ 97 ] Both counsel submit that given the unique circumstances occasioned by the pandemic lockdown, in conjunction with the mitigating and aggravating factors, the Court can be satisfied 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 ss. 718 to 718.2 of the Criminal Code . [ 98 ] Section 215(3) of the Criminal Code sets out that everyone who commits an offence under subsection (2)(

a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years. [ 99 ] The mitigating factors here are that Ms. D. entered guilty pleas to the offences. She has no prior criminal record. She has cooperated for the most part with the preparation of the reports. She appears to understand the need for any further assessments and counselling. She intends to work with the staff of FVACFSS during the period of the Conditional Sentence Order, and subsequent probationary period.

She suffered from significant mental health at a difficult time, being the initial COVID-19 pandemic lockdown period. She did not receive the support she needed, and struggled on alone, until on June 30 when she called the paramedics for help. She was then hospitalized for a month pursuant to the Mental Health Act . To her credit, and in mitigation, Ms. D. was cooperative with the police and provided an inculpatory statement. She took full responsibility from the outset for what had happened. [ 100 ] The aggravating factors are that Ms.

D. failed to provide the necessaries of life to her two young children, who were defenceless and unable to seek help on their own. The paramedics found the children in an emaciated and dirty condition in their bedroom. They received urgent medical care, and were in hospital for a lengthy period of time. If Ms. D. had not phoned for help when she did, the children may well have died within a short period of time. Fortunately, the children have recovered and are doing considerably better. [ 101 ] Ms.

D. had been receiving the assistance of a social worker prior to the offence dates, but during the period of the COVID-19 pandemic lockdown, the in-person assistance to her and her children was essentially withdrawn, and more particularly after April 24, 2020. [ 102 ] Ms. D. was the sole provider for her children. The father of the children was not involved in their care. Her own mother likewise was not providing Ms. D. with any assistance. She also suffered from significant mental health difficulties, as stated in the various reports.

She was subsequently diagnosed with borderline personality disorder, post-traumatic stress disorder, cannabis use disorder, alcohol use disorder and unspecified psychotic disorder. She was treated with antidepressant and antipsychotic medication during her time in hospital. She will need to continue with medication in the future. [ 103 ] I am mindful of the principles of sentencing here, being denunciation, deterrence and rehabilitation.

Section 718.01 of the Criminal Code provides that: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[104]

Section 718.1 of the Criminal Code sets out “A sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender”. [105]

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

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 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 … All of those factors are deemed to be aggravating circumstances in this matter. [106]

Section 718.2 sets out the following: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [107] Ms. D. is of Aboriginal heritage, in particular through her father, but also through her mother. I have found the Gladue report tobe of assistance in considering Ms. D.’s heritage. She was also a young adult, age 23, at the time of the offences.

The facts presented arethat she was completely overwhelmed with her circumstances during the COVID-19 pandemic lockdown in the early part of 2020. Shewas not able to cope, and had no one to assist her. [108] Counsel acknowledge that Ms. D. will require significant therapeutic assistance over the course of the next four years. The hopeis that the proposed terms of a lengthy Conditional Sentence Order, in addition to the two years of probation, will address not onlydenunciation and deterrence, but also her rehabilitation. [109] Furthermore, the FVACFSS is involved with the children and Ms. D.

The children are currently placed with the maternalgrandmother and in a group home. Ms. D. will not be able to have any contact with the children without the permission and involvementof FVACFSS. [110] The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61 considered a number of sentencingprinciples with respect to a Conditional Sentence Order, being that a Conditional Sentence Order is intended to address both punitive andrehabilitative objectives. A Conditional Sentence Order should generally include punitive conditions that restricts the offender’s liberty.

A curfew or house arrest is being proposed here of 8:00 pm to 6:00 am every day. [111] There is a two-stage process involved with the consideration of the imposition of a Conditional Sentence Order. The Court mustconsider whether to exclude the two possibilities of a penitentiary term or a non-custodial term. In making this preliminarydetermination, the Court need only consider the fundamental purpose and principles of sentencing to the extent necessary to narrow therange of sentences for the offender.

At the second stage, the Court considers the principles of sentencing in a comprehensive way indetermining whether to impose a Conditional Sentence Order. Thus, the judge may properly conclude that the term of the ConditionalSentence Order should be longer than it would have been if the offender were sentenced to immediate imprisonment. [112] The decision of R. v.

Peterson, to which I have already referred, sets out at para. 59 that: “Sentences for this type of offencegenerally appear to fall between four and eight months incarceration with a period of probation following…” [113] That sentencing range is the case when jail is imposed. However here, by way of joint submission, counsel are inviting the Courtto consider a lengthy Conditional Sentence Order plus probation, with significant terms.

SENTENCE [114] Having considered the facts, the mitigating and aggravating circumstances, the joint submission of counsel, the stringentproposed terms for both a lengthy Conditional Sentence Order and probationary period, as well the purposes and principles of sentencingset out in s. 718 to s. 718.2 of the Criminal Code, including the Gladue factors, there will be a sentence of two years less a day to beserved in the community as a conditional sentence, plus a period of probation for 24 months. I am 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 purposes and principles of sentencing. [ 115 ] With respect to Count 2, there is a sentence of two years less a day, to be served in the community. [ 116 ] With respect to Count 4, there is a sentence of two years less a day, to be served in the community, and that sentence is concurrent. [ 117 ] There is also a period of probation for two years. [ 118 ] I now intend to go over the terms of both the Conditional Sentence Order and the Probation Order.

Terms of the Conditional Sentence Order [ 119 ] You must comply with a Conditional Sentence Order for a term of two years less one day. The conditions are: 1. You must keep the peace and be of good behavior. 2. You must appear before the court when required to do so by the court. 3. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. 4.

You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. 5. You must report in person to a conditional sentence supervisor at Chilliwack Community Corrections, by 3:00 pm July 25, and after that you must report as directed by your conditional sentence supervisor. 6. You must have no contact or communication directly or indirectly with E. D-M. or S. D-M. 7. The exceptions are: a. As allowed by a family or child protection order made by a judge or master who has been given a copy of this Order.

You must immediately file a copy of this Order in any family or child protection proceeding in which you are a party or become a party. b. Or with the written permission of the Fraser Valley Aboriginal Children and Family Services Society. 8. You must not go to or be within 100 meters of: any place where E. D-M. and S. D-M. live, work, attend school or worship or happen to be. If you see them, you must leave their presence immediately without any words or gestures. The exceptions are: a. As allowed by a family or child protection order made by a master or a judge who has been given a copy of this Order.

You must immediately file a copy of this Order in any family or child protection proceeding in which you are a party or become a party. b. Or with the written permission of the Fraser Valley Aboriginal Children and Family Services Society. 9. You must live at an address approved in advance by your conditional sentence supervisor and you must provide your supervisor with your phone number if you have one. You must not change them without prior written permission of your supervisor. 10. You must not leave British Columbia unless you have the prior written permission of your conditional sentence supervisor.

If you are given permission, you must carry it with you in paper or electronic format at all times when you are outside the province. 11. You must obey a curfew by being inside the place where you live and regularly sleep between 8:00 pm and 6:00 am, every day. The exceptions are: a. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes. b.

You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. (You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.) c. You are in the immediate presence of your partner or mother, but only with the written permission of your conditional sentence supervisor. 12.

You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. 13. You must provide your conditional sentence supervisor with the details of your employment or intimate relationship status. You must inform your supervisor within two business days of any change in your employment or intimate relationship status. 14.

You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription, or if using marijuana, you must immediately inform Fraser Valley Aboriginal Children and Family Services Society or your conditional sentence

supervisor of that use. 15. You must attend, participate in and complete any intake, assessment, counselling or education program directed by your conditional sentence supervisor. This may include, but is not limited to, counselling or programming for: a. Alcohol or substance abuse. b. Mental health. c. Parenting skills. 16. You must attend, participate in and complete any intake, assessment, program, treatment or a full-time live in treatment program as directed by your conditional sentence supervisor. This may include programming or treatment for: a. Alcohol or substance abuse. b.

Psychiatric and psychological health. 17. You must attend for a psychiatric intake, assessment or treatment program through Forensic Psychiatric Services as directed by your conditional sentence supervisor. 18. Having consented in court, you must: a. Report to forensic psychiatric services or elsewhere for any intake, assessment, counselling or treatment program as directed by your conditional sentence supervisor b. Attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor and mental health worker. c. Take all medications and medical treatment prescribed for you. d.

Provide your conditional sentence supervisor with the names, addresses and phone numbers of your doctor, psychiatrist, psychologist, counsellor and mental health worker. e. Authorize your conditional sentence supervisor to give all professionals identified in this condition a copy of this order. f. Authorize your conditional sentence supervisor to tell all professionals identified in this condition that if you do not follow this Order, they have your permission to inform your conditional sentence supervisor. g.

Sign any document that is necessary for your conditional sentence supervisor and all professionals identified in this condition to check your attendance and completion of any intake, assessment, counselling or treatment program. h. If you decide not to follow the terms of these directions, you must immediately report this in-person to your conditional sentence supervisor and tell them why. If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. Having consented in court, you must: a.

Sign any document that is necessary for your conditional sentence supervisor (doctor, psychiatrist, psychologist, counsellor, mental health worker) to share information concerning your attendance and completion of any intake, assessment, counselling, or treatment program, Or b. Provide proof of your attendance and completion of any assessment, counselling, or treatment program if your conditional sentence supervisor requests it. Terms of the Probation Order [ 120 ] You must comply with a probation order for a term of two years. The conditions are: 1. You must keep the peace and be of good behavior. 2.

You must appear before the court when required to do so by the court 3. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation 4. You must remain in British Columbia unless you have prior written permission from the court or your probation officer to leave the province. 5.

You must report in person to a probation officer by 3:00 pm on the first business day after the completion of the conditional sentence order, and after that, you must report as directed by your probation officer. 6. You must have no contact or communication directly or indirectly with E. D-M. and S. D-M. The exceptions are: a. As allowed by a family or child protection order made by a judge or master who has been given a copy of this Order. You must

immediately file a copy of this Order in any family or child protection proceeding in which you are a party or become a party. b. Or with the written permission of the Fraser Valley Aboriginal Children and Family Services Society. 7. You must not go to or be within 100 meters of any place where E. D-M. and S. D-M. live, work, attend school or worship or happen to be. If you see them (any of them), you must leave their presence immediately without any words or gestures. The exceptions are: a. As allowed by a family or child protection order made by a master or a judge who has been given a copy of this Order.

You must immediately file a copy of this Order in any family or child protection proceeding in which you are a party or become a party. b. Or with the written permission of the Fraser Valley Aboriginal Children and Family Services Society. 8. You must live at an address approved in writing in advance by your probation officer and you must provide your probation officer with your phone number if you have one. You must not change them without prior written permission from your supervisor. 9. You must not possess or consume alcohol, drugs or any other intoxicating substances, except with a medical prescription.

If you use marijuana, you must inform both you probation officer and Fraser Valley Aboriginal Children and Family Services Society. 10. You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer. This may include counselling or programming for: a. Alcohol or substance use. b. Mental health. c. Parenting skills. 11. Having consented in court, you must: a. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your probation officer. b.

Attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor and mental health worker. c. Take all medications and medical treatment prescribed for you. d. Provide your probation officer with the names, address and phone number of your doctor, psychiatrist, psychologist, counsellor and mental health worker. e. Authorize your probation officer to give all the professionals identified in this condition a copy of this Order. f.

Authorize your probation officer to tell all professionals identified in this condition that if you do not follow this Order, they have your permission to inform your probation officer. g. Sign any document that is necessary for your probation officer and all professionals identified in this condition to check your attendance and completion of any intake, assessment, counselling, or treatment program. h. If you decide not to follow the terms of this Order, you must immediately report this in-person to your probation officer and tell them why.

If their office is closed, you must return immediately on the next business day during regular business hours and speak to them. Having consented in court, you must: a. Sign any document that is necessary for your probation officer (doctor, psychiatrist, psychologist, counsellor, mental health worker) to share information concerning your attendance and completion of any intake, assessment, counselling or treatment program, or, b. Provide proof of your attendance and completion of any assessment, counselling, or treatment program if your probation officer requests it.

Victim Fine Surcharge [ 121 ] Given your financial circumstances, the nature of this sentence, and the need for you to undergo significant counselling, I waive the Victim Fine Surcharge. ____________________________ The Honourable Judge W.A. Young Provincial Court of British Columbia