R. v. Maloney, 2012 NSSC 250

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Maloney, 2012 NSSC 250 Date: 20120620 Docket: CRAM 346625 Registry: Amherst Between: Her Majesty the Queen Plaintiff v. Lacy Maloney and Mitchell Chapman Defendants SENTENCING Judge: The Honourable Justice A. David MacAdam Heard: April 19, May 24, 25 and June 20, 2012 Final Written Submissions: May 17, 2012 Written Decision: July 4, 2012 Counsel: Mary Ellen Nurse, for the Crown Stephanie Hillson, for the defendant, Lacy Maloney Kymberly Franklin, for the defendant, Mitchell Chapman By the Court :

Introduction [ 1 ] Lacy Maloney and Mitchell Chapman were convicted at trial of failing to provide necessaries to a person under their charge contrary to s. 215(2) (

b) of the Criminal Code . [ 2 ] The facts and evidence are set out in detail in the trial decision: 2011 NSSC 477 . The offenders' child, SM, was born at the Moncton City Hospital on December 4, 2009. In the first month of his life he lived with his parents and at times his mother's four-year-old son, AM, in Amherst. Ms. Maloney shared custody of AM with his father. On December 29, SM's mother took him to the Cumberland Regional Hospital in Amherst, where he was examined and it was decided to send him to a hospital in Moncton, NB.

It appears that SM suffered a seizure at the Amherst hospital, although the doctor was unable to make a definitive diagnosis. The notes on the hospital record include the words "abuse" and "infection." However, the attending physician did not see signs of trauma, and said the chest x-ray did not show anything acute. He observed bruising on the face. SM suffered another seizure on the way to Moncton. [ 3 ] On arriving in Moncton, SM was examined again. Dr. Heidi Carlson testified that she was not sure what had happened, but that SM was gravely ill.

She observed bruising on his face, scratches, a bloody lesion on the side of his nostril and spots of bleeding in his eyes. There was a scratch on the back of one of his knees. As he was on his back when she examined him, she did not observe whether there were any injuries on his back. She suspected a traumatic event, although SM's parents said they had not witnessed any trauma and denied leaving the child in the care of anyone who could have caused it.

She said his condition suggested "shaken baby syndrome." Neither the doctor in Amherst nor the ambulance attendant observed the extent of bruising reported in Moncton. [ 4 ] Suspecting possible child abuse, Dr. Carlson had SM transferred to the IWK Children's Hospital in Halifax, NS. He was admitted to the IWK on December 30, 2009, with seizures, difficulty breathing, bruising, a skull fracture, hematomas and hypoxic ischemia. The parents had no explanation for the injuries. Dr.

Kim Blake was qualified as an expert in pediatrics, with subspecialities in neurology, non-accidental head injuries and developmental medicine. In her report, she provided the following

summary: At the age of 25 days, [SM] was found to have substantial subdural hemorrhages, a generalized hypoxic-ischemic brain insult, retinal hemorrhages and extensive facial and bodily bruising. There is no available history of significant accidental trauma that occurred prior to [SM's] presentation to hospital on December 29th, 2009. To date, medical testing is not suggestive of any underlying medical illness in S.M., which might account for the above findings. S.M. does not have a coagulopathy (bleeding problem).

Medical evaluation to date cannot explain his skull fracture, subdural hemorrhage, brain injury, bruising, and retinal hemorrhages.

In the absence of a history of significant accidental trauma, the constellation of unexplained subdural hemorrhage with associated hypoxic ischemic insult to the brain, cavitation within the brain, retinal hemorrhages, unexplained bruising, and skull fracture in an infant with limited mobility lead to my diagnosis of recent and older inflicted trauma (non-accidental injury) in [SM]. [SM's] head injury and the hypoxic ischemic insult that he suffered involved a significant portion of the cortical or higher centers in the brain which are typically responsible for executive functioning, cognitive processing and motor commands.

There is significant concern for [SM's] visual system as he is having problems with fixing and following objects. Because [SM] is still young and the brain is in the early stages of development, [SM's] long-term prognosis is not clear. Possibilities range from severe cognitive as well as physical disability (such as blindness and cerebral palsy), to a more benign outcome consisting of problems such as learning and language delay with or without motor handicaps. His prognosis will only become clearer over time. [ 5 ] Dr. Ellen Wood also saw SM at the IWK.

She was qualified as an expert in pediatrics, with a subspecialty in neurology, non- accidental head injury and developmental medicine. She testified about the degree of swelling and the timing of the event that would have caused the swelling. She said:

Q. Having regard to your observations as to the status of the swelling, based on the CT that, the CAT scan that you had seen, are you able to say when the event that would have led to the swelling would have occurred, the outside parameters? Is this the, what I'm referring to is that seven days, whether or not we are now in a different time frame. A. Absolutely. No I mean the swelling was there. It was a great deal of swelling. It clearly got worse, which necessitated the baby having to go on a ventilator.

So at the absolute outset, I don't see that this could have been more than, than three days and I think that would, I think it was less than three days. Q. And that's the event that led to the swelling? A. Yes. [ 6 ] In my reasons at trial I concluded that SM suffered a severe head injury and that this trauma occurred no more than – and likely less than – three days before Dr. Wood examined him. During those three days, SM had been in the care and custody of one or both parents, aside from a period of time on December 27 when his parents went to Moncton, leaving him in the care of Karen Chapman, Mr.

Chapman's mother. There was no suggestion, and no evidence, that anything untoward happened to SM during this time. There was evidence that upon his parents' return, SM was crying a lot, and Mr. Chapman tried to soothe him by rocking him.

SM then fell asleep. [ 7 ] Three possibilities were suggested as the cause of SM's injuries: (1) that he was injured as a result of two incidents that occurred during his birth; (2) that the offenders together, or, more likely, his father, shook him, and his mother, being aware of the situation, took no steps to protect him; or (3) that his step-brother, AM, who was then four years old, caused the injury while neither parent was present. [ 8 ] SM's parents, and other family members who were present, claimed that at his birth there were two unusual incidents: first, that SM began to appear before the attending doctor was ready, and he pushed SM back into his mother, and second, that when SM emerged the second time, the doctor mishandled him and his head struck a pan that was being used in the delivery.

The attending doctor and an attending nurse testified that neither incident occurred, and the hospital record of the delivery discloses no report of either incident. In any event, Dr. Wood testified that the trauma that caused the injuries could only have occurred within the previous three days, and likely less time than that. They could not have arisen from events at birth. [ 9 ] As to the other two possibilities for the cause of SM's injuries, there was no evidentiary basis upon which to determine which had occurred. The offenders claimed that the injuries occurred at birth, or were caused by AM.

The evidence established that AM had a hyperactive and rambunctious personality. The Crown maintained that the offenders assaulted SM and were attempting to blame AM in order to avoid responsibility.

Since both parents denied seeing SM struck by anyone, if AM had caused the injuries, it would have to have been at a time when the parents were not present, very possibly due to a temporary lapse of supervision. [ 10 ] I concluded that either circumstance – direct infliction of the injuries, or failure to properly supervise AM – would make out the offence of failing to provide the necessaries of life to a person under their charge. I therefore found it unnecessary to determine which scenario had actually occurred.

Law [ 11 ] The offenders were convicted under s. 215 of the Criminal Code , which provides, in part: Duty of persons to provide necessaries 215(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. Offence

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (

a) with respect to a duty imposed by paragraph (l)(

a) or (b), (

i) the person to whom the duty is owed is in destitute or necessitous circumstances, or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or (

b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. [ 12 ] Pursuant to s. 215(3)(a), a person convicted "is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years." In this case, Ms. Maloney and Mr.

Chapman were convicted on the basis that even if they did not themselves inflict the injuries, a prudent person in their circumstances would have been aware of the risk that an active four-year old could pose to an infant, and that their supervision of the children was deficient to the degree that it amounted to an offence under s. 215 . There was no specific finding as to how the injuries actually occurred. In particular, the evidence did not establish that either accused inflicted the injuries.

Sentencing principles [ 13 ] The principles of sentencing are set out at ss. 718-718.2, which provide, in part: Purpose 718. 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. .... Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 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 offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

(

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; .... [ 14 ] There is an issue in this case as to whether the court should impose a conditional sentence of imprisonment. The conditions necessary for a conditional sentence are set out at s. 742.1 of the Criminal Code : If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 15 ] On behalf of Ms. Maloney it is submitted that a conditional sentence is available for the present offence. She states that s. 215 does not constitute a "serious personal injury offence" as defined in s. 752, for which a conditional sentence would not be available.

Section 752 provides, in part: "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 psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more.... [ 16 ]

Section 215 provides for a maximum sentence of five years. As such, the offence is not a "serious personal injury offence" that would be excluded from the conditional sentencing regime. Pre-sentence Reports Lacy Maloney [ 17 ] Ms. Maloney was born on February 5, 1990. She was raised by her mother and grandmother. She became pregnant at 14 years

of age, and her son, AM was born when she was 15. She reported to the probation officer that her relationship with AM's father was an abusive one. She met Mr. Chapman in December 2008, and they moved in together in April 2009. She said Mr. Chapman was a good stepfather to AM. Their son SM was born on December 4, 2009. [ 18 ] Ms. Maloney reported that she completed grade 12 and that she was Student Council President in high school, that she taught dance and played several sports while she was in school.

She said she had enrolled in an Early Childhood Studies program after high school, but had not actually done the program because of her concerns about the presence of AM's father, with whom she reported repeated problems, including physical assaults. She worked part-time at Tim Horton's before moving to Pugwash. [ 19 ] Kristen MacDonald, the social worker involved in the child protection case in relation to SM, reported to the probation officer that "on her own, Ms.

Maloney was generally understanding and cooperative," but that "often after their meetings, her partner would return to oppose everything that had been discussed." She was concerned that "Ms. Maloney's passive demeanour coupled with her partner's aggressive and controlling presentation could indicate a high risk for domestic violence." She believed that Ms. Maloney "did not appear to fully appreciate the extent of [SM's] injuries." She noted, however, that Ms.

Maloney "behaved very appropriately during her supervised access visits with her children and made significant effort to engage and bond with them." The probation officer indicated that there are "possible mental health issues" with Ms. Maloney, and recommended a mental health assessment. She also wrote that Ms. Maloney seems to have "inadequate insight into the gravity of her son's injuries." Mitchell Chapman [ 20 ] Mr. Chapman was born on December 17, 1989.

He grew up living with his mother and stepfather in the Amherst area, also spending periods in foster care and living with other relatives after getting in trouble with the law. He lived in Alberta for a period around the age of 15, then returned and ultimately was incarcerated in the Nova Scotia Youth Facility. His schooling was sporadic, but he indicated in an interview for his pre-sentence report that he completed the requirements for grade ten while incarcerated.

His employment has also been sporadic, mainly consisting of labour and service jobs beginning at the age of 12 or 13, as well as an apprenticeship with a pump business as part of his release plan from the Youth Facility, which did not lead to employment due to shortage of work. [ 21 ] Mr. Chapman met Ms. Maloney when he was 19 years old. They began dating, and after six months he moved in with her and her four-year-old son, AM, when AM was in her custody. SM was born eight months later. [ 22 ] As a youth, Mr. Chapman was sentenced three times to probation.

The charges included assault, assault causing bodily harm with a weapon, resisting a peace officer and breach of undertaking. In 2007 he received a total sentence of some 300 days at the youth facility on charges of uttering threats, robbery, breach of undertaking, and drug trafficking. [ 23 ] The pre-sentence report refers to a conversation with Kristen MacDonald, the social worker assigned to the child protection case involving SM, who described Mr.

Chapman's demeanour as "highly volatile and stated that he'd been non-compliant and verbally aggressive with her and other staff on a regular basis." She took the view that Mr. Chapman's "oppositional attitude toward Child Welfare has limited his ability to act in the best interest of his son." Similarly, Trina Pederson, an educator at the Nova Scotia Youth Facility, reported that Mr.

Chapman had "anger management issues as well as problems with authority." While she found that he "seemed to like that he could infuriate people," she also said that they had built "a good relationship with clear boundaries and expectations," and that despite his "difficult presentation, she enjoyed working with him and was happy with his successes." The probation officer also spoke to Mike Sears, Mr. Chapman's stepfather, who believed that Mr.

Chapman had anger management issues, but that he was maturing, and said that he "can be defensive and mouthy but he does not consider [him] to pose a threat to anyone." [ 24 ] The pre-sentence report indicates that areas of concern with Mr. Chapman include "mental health issues of an unspecified nature," possibly including anxiety, Attention Deficit Disorder, Hyperactivity Disorder, and anger management deficits. The probation officer recommended a complete mental health assessment and participation in any recommended treatment, and noted that Mr.

Chapman appears to view himself as a victim in the present situation. [ 25 ] Both Ms. Maloney and Mr. Chapman continue to deny responsibility for SM's injuries, and to assert that they should not have been convicted. They reported feelings of ostracization in the community as a result of the present charges, to the extent that they moved from Amherst to Pugwash.

Arguments The factual basis for sentencing [26] This case raises a somewhat unusual consideration in respect of the circumstances of the offence, particularly with respect tothe mental element. If the offenders struck SM, then they intentionally caused the trauma that resulted in his injuries. Few offenceswould be more horrifying than parents deliberately striking a newborn infant of less than a month of age and causing injuries as severe asthose suffered by SM.

However, the same level of denunciation would not be warranted where the injury occurred due to a momentarylapse in supervision or failing to take all the necessary steps to prevent AM from having unsupervised access to SM.

In view of SM's ageand AM's personality and behaviour, the failure to ensure SM's safety amounted to a failure to provide the necessaries of life, but did notcarry the degree of condemnation that would arise from the parents directly assaulting SM. [27] Where there are disputed facts going to sentence, "[i]f the Crown does not call adequate evidence to establish the moreaggravated circumstances beyond a reasonable doubt, then the accused's version is to be accepted, unless there is some manifest reasonwhy that

interpretation is contrived or erroneous": R. v. Ewanchuk, 2002 ABCA 95, at para. 22, application for leave to appealdismissed, 2003 CarswellAlta 249 (S.C.C.); R. v. Gobin (1993), (MB CA), 85 C.C.C. (3d) 481 (Man. C.A.), at para5. Speaking more broadly, where the facts are unclear, the court must sentence on the basis of the version of the facts most favourable tothe offender: R. v. Cardinal, 2007 ABCA 46 at para. 8. In R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, Dickson J. (as hethen was), for the majority, remarked that a guilty plea amounted to no more than "an admission of the essential legal ingredients of theoffence," and any additional aggravating facts "must be established by the Crown. If undisputed, the procedure can be very informal. Ifthe facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolvingrelevant doubt in favour of the offender" (414-415.) Similarly, in R. v. Bruyere (1987), (MB CA), 49 Man. R. (2d)288 (Man.

C.A.), an appeal of a sentence of eight years for manslaughter, Huband J.A. said, for the majority, at para. 2: We do not know the scenario of facts which led the jury to its verdict of manslaughter. Several views of the evidence are possible. Thelearned trial judge shows the worst scenario in reaching his decision to impose an 8-year sentence. In a case where other

interpretationsof the evidence are equally plausible, we think a more moderate view should have been followed and which would have resulted in amore modest sentence. The learned trial judge is not required to accept a fanciful version of facts favourable to and suggested by theaccused. But where it is impossible for judge or jury to determine the precise manner in which death occurred, which is the case here, itis not open to the sentencing judge to base his sentence on that version which is most detrimental to the accused. [28] This is a situation where the offenders' specific conduct has not been established.

It was established beyond a reasonable doubtthat their conduct fell below the standard required by s. 215, but there was no specific finding as to how SM's injuries occurred, and,particularly, there was no finding that his injuries were inflicted by either parent. As such, they can only be sentenced on the basis of thelowest degree of culpability that their convictions encompass. Positions of the Crown and defence [29] The Crown seeks significant custodial sentences for both offenders.

Several cases are provided in support of the Crown'sargument that conditional sentences are not available in these circumstances, and that incarceration is required. [30] In R. v. J.M.B., 2005 NLTD 121, the offender was convicted of failing to provide the necessaries of life to her two-month-olddaughter. She waited over two days before seeking medical attention for a severe head trauma after the child had been left alone with herhusband, resulting in permanent brain damage to the child. She was sentenced to nine months' imprisonment followed by 18 months'probation with conditions.

Rejecting a conditional sentence, the sentencing judge said, at para. 17: ... I am not satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles ofsentencing that I outlined earlier on. It would not meet the objectives of denunciation and general deterrence, although I do acknowledgethat a community-based conditional sentence can, in the right circumstances, meet those objectives.

However, in this case, I am satisfiedthat a period of incarceration in Her Majesty's Penitentiary is required to send the appropriate message of denunciation and deterrence.... [31] In R. v. Barry, 2003 CarswellNfld 7 (Nfld. Prov. Ct.), the accused, a 19-year-old single mother of two children, delayed twodays seeking medical attention for her infant daughter's broken arm, which was established to be due to an assault, although it was not

proven that the accused caused it. The mother was sentenced to six months' imprisonment. The sentencing judge found that her omission to act was purposeful, and that she knew that the child was in pain and needed medical attention. The failure to act was a morally reprehensible omission, involving a conscious choice to allow her daughter to suffer. [ 32 ] In R. v. Foote , 2005 NLTD 211 , the accused failed to seek prompt medical assistance for non-accidental head injuries suffered by his eight-week old daughter, which resulted in brain damage, cerebral palsy, and a smaller head size.

The accused was sentenced to eleven-and-a-half months' imprisonment, the sentencing judge holding that a conditional sentence would not sufficiently satisfy the objectives of denunciation and general deterrence, nor properly address the accused's moral blameworthiness (paras. 60-69). Counsel for Ms. Maloney argues that Foote is distinguishable due to the day-long delay in seeking medical assistance after the child's condition was observed by others, and by the slow method of taking the child to hospital by ferry, rather than to a nearby medical centre. [ 33 ] The Crown cites R. v.

G.S.J. , 2007 NBPC 21 , where the parents were convicted of failing to provide the necessaries of life to their five-year-old daughter. After several months' involvement by the Ministry of Family and Community Services, a social worker found the child weakened, crying and dishevelled and lying in a fetal position, with a broken arm and wrist, and with bruises and abrasions. The parents denied guilt, and it was not established that they inflicted the injuries.

The sentencing judge said, at para. 34, 37: The importance of sedulously preserving, promoting and protecting the traditional relationship between a dependent child and parent cannot be overstated. It is the most important social bond that we share in a civilized society, the result of which is a trust of the highest order. Its importance is never higher than when a very young child such as D.J., who was at five years of age at the time, is involved.

At such a young age the child's dependency upon her parents is virtually complete whether it is viewed from the physical, economic, social or psychological standpoint. A breach of trust by a parent or parents in failing to carry out any of the fundamental legal duties owed a young child in such circumstances is especially serious. ....

Cases that fall into the category of failing to provide the necessaries of life thereby endangering life while requiring judges, as all sentence hearings do, to consider all the principles of sentence share a special focus on denunciation and general deterrence in determining an appropriate sentence. [ 34 ] The court declined to impose a conditional sentence, reasoning that such a sentence "would not pay due regard to the important principles of denunciation and deterrence. It would not adequately recognize the gravity of the offence and the degree of responsibility of the offenders.

It would not acknowledge the harm done to the victim by their collective inaction as parents. The request for a conditional sentence is denied" (para. 52). The parents were each sentenced to eight months' imprisonment followed by one year's probation. Counsel for Ms. Maloney submits that the facts in G.S.J. disclose much more egregious conduct by the parents than the present case does. For example, the father admitted on cross-examination that the child had been kept out of school for two weeks in order to conceal her condition. [ 35 ] The Crown relies on R. v.

Grant , 2009 NBPC 17 , where the accused pleaded guilty to failing to provide the necessaries of life to her mother, who was found by paramedics sitting in her own waste, with gangrenous wounds on her legs, arms and buttocks and suffering from profound malnutrition and dehydration. She was admitted to palliative care and died four days later of heart failure. The accused was the victim's sole caregiver and did not take her for follow-up appointments after she was diagnosed with peripheral vascular disease. She was not seen by a doctor until she was admitted to hospital.

The accused was employed and had no criminal record. Sivret Prov. Ct. J. sentenced the accused to 4 years' imprisonment, rejecting her claim of limited mental ability. The facts in Grant – involving prolonged abuse of the offender's elderly mother – were more aggravated than those in this case, and Grant is of limited assistance here. [ 36 ] Generally speaking, the cases cited by the Crown are distinguishable. They involve prolonged abuse, as in Grant , or deliberate delays in obtaining medical assistance in order to avoid blame for the injuries, as in J.M.B. , Foote , and Barry .

Neither circumstance is established in this case. This, however, is not to minimize the seriousness of a parent's failure to perform the duties owed to an infant in their care, as noted in G.S.J. Ms. Maloney [ 37 ] The Crown seeks a sentence of 25 months incarcerations for Ms. Maloney. The Crown asserts that Ms. Maloney "knows who

hurt SM and is covering for herself or someone else," or "does not know and has caused the injuries by her failure to properly supervise SM." As I have made clear, the first scenario was not established, and the sentence will be imposed in accordance with the second scenario, which carries a lesser degree of culpability. The Crown also says the mother's blaming AM for SM's injuries will lead to "feelings of incredible guilt" in AM as he gets older as a result of the type of "rumour and talk" that occurs in small communities. [ 38 ] The severity of SM's injuries are also an aggravating factor.

In this respect, the Crown speaks of the injuries as permanent ones, including the loss of the two frontal lobes so that memory, speech, coordination, and decision-making abilities all "stand to be severely affected" and the child will need "continuous life long support from both family members and the government." The evidence does not allow this degree of conclusiveness. The medical evidence is to the effect that SM suffered potentially life-threatening injuries, and there was brain damage, but that it is too early to assess the longer-term effects.

This conclusion appears to be supported by a consultation report by Dr. Monique Taillon of the Stan Cassidy Centre For Rehabilitation in Fredericton, NB, dated April 23, 2012. Dr. Taillon noted that SM had "made significant gains since I last saw him" but "cautioned that there might be subtle learning issues that would only become evident when he was older." [ 39 ] A similar conclusion was reached by Dr. Heidi Carlson, who was called by the Crown at the sentencing hearing. On cross-examination by counsel for Ms. Maloney, Dr.

Carlson said: Q: And so although he doesn't have the verbal skills at this time, he has certainly shown an ability to communicate. Correct? A: Yes. Q: And now to be clear, you would agree that there were other possible causes of his speech delay, but based on his brain injury, you viewed that as the most likely reason for the speech delay. Correct? A: Yes. Q: So at this point, there is certainly a possibility that he will continue to improve in his speech, and may have regular speech at some point in the future?

A: Yes, because the brain has the capacity to heal, so the injuries that he sustained, it may allow for the development. Q: Okay. And in terms of vocabulary, when you were learn, when you were referring to vocabulary when discussing matters with Ms. Nurse, what you were talking about is his own speaking vocabulary. Correct? A: Right. Q: So you weren't referring to his comprehension vocabulary, were you? A: No. Q: And you would agree that his comprehension vocabulary is actually quite high at this point, isn't it? A: Well, I wouldn't necessarily say high, but it's certainly within the norm for his age.

Q: So in terms of the milestones for a child of [S's] age, and [S] is approximately two and a half years now, if I suggested to you that he is meeting all milestones but for his spoken communication, would you agree with that?

A: I would. [40] Ms. Maloney's counsel submits that it was clear from her testimony that if AM accidentally caused SM's injuries, he was not atfault. It is also submitted on her behalf that SM's injuries have severely impacted her life, and that of her family. These events have alsoallegedly caused Ms. Maloney to be isolated and ostracized in the community, and have attracted publicity; counsel cites Clayton Ruby'scomment, in Sentencing, 6th edn., that "[m]ere appearance in a public forum together with the finding of guilt undoubtedly has seriousconsequences to anyone," particularly a first offender (see §5.189).

All that being said, I put little weight on the aspects of publicity andisolation as a factor in sentencing. They are not unique to this particular offence or offender. [41] With respect to general deterrence, Ms. Maloney cites R. v. Da Silva, [2005] O.J. No. 2389 (Ont. Sup. Ct. J.), affirmed at 203C.C.C. (3d) 1 (Ont. C.A.), where Watt J. stated that a first sentence of imprisonment, especially for a first-time offender, should be asshort as possible and tailored to that offender's circumstances, rather than imposed solely for the purpose of general deterrence" (para.91).

Conditional sentencing [42] The basic principles governing conditional sentences in cases of this kind were reviewed in R. v. J.R.B., [2003] N.J. No. 9(Nfld. Prov. Ct.), where Gorman Prov. Ct. J., in the course of refusing a conditional sentence, said, at paras. 36-38: In R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 the Supreme Court of Canada set out a two-stage test that is to be applied. Thefirst stage involves a consideration of whether or not the statutory prerequisites exist, including a determination that serving the sentencein the community would not endanger the safety of the community.

The second stage of analysis requires a determination of whether ornot the sentence would be consistent with the fundamental principles of sentencing. Proulx clearly points out that there are no classes ofoffences which are exempt from conditional sentences. In R v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207 the Court held that at the second stage of analysis the court must undertake a"comprehensive consideration" of the principles of sentencing set out in sections 718-718.2 of the Criminal Code. I conclude that Ms. J.R.B. does not constitute a danger to the public. However, this is not conclusive.

As pointed out by theNewfoundland and Labrador Court of Appeal in R. v. Carroll (2002), 2002 NFCA 1 , 207 Nfld. & P.E.I.R. 317, at paragraph 6,"While the appellant may not be a danger to the community at large, additional factors are relevant in determining whether a conditionalsentence is warranted.".... [43] In arguing for a conditional sentence for Ms. Maloney, counsel points out that the first requirement of s. 742.1 – that theoffence is not subject to a minimum sentence, or to a maximum sentence of ten years or more – is met. This is correct.

She argues thatthe cases cited by the Crown, with the exception of the distinguishable Grant, involve sentences of under two years, so there is no basisin the authorities to impose a sentence of two years or more. For the reasons discussed earlier, I am satisfied that the caselaw does notsupport a sentence of greater than two years in the present circumstances.

Having regard to all the circumstances, including the degree ofculpability upon which the sentence is to be determined, I am satisfied that a custodial sentence of one year is appropriate. [44] Counsel submits that there is no reason to believe that for Ms. Maloney to serve her sentence in the community would endangerthe safety of the community. In particular, Ms. Maloney has no history of violence and she has complied with conditions governingcontact with her children.

Her pre-sentence report would suggest that she would have been regarded as a person of good character.Taking all of these factors into account, I am not satisfied that permitting her to serve her sentence in the community would be likely toendanger the safety of the community. [45] Finally, it is necessary to consider whether a community-based sentence for Ms. Maloney is contrary to the purpose andprinciples of sentencing.

While a conditional sentence in the community is generally perceived to be less onerous than actualimprisonment, it must be recalled that a conditional sentence served in the community is nevertheless a custodial sentence. Whilepermitted to live in her own residence and continue her employment or education, the offender is subject to restrictions on her liberty, anda breach of those conditions may result in the offender serving the remainder of the sentence in prison.

[46] The use of community-based sentences in cases of this kind was considered in R. v. Beaudry, 2006 ONCJ 577, 2006CarswellOnt 9641. In that case, the mother of a seven-month old child delayed taking him to the hospital upon discovering that his headwas swollen, fearing that she would be blamed for the injury. There was evidence that he might have been hit on the head with a toy byanother child. Harris J. accepted a joint submission of a conditional sentence, stating, at paras. 33-34 and 38-39: I note that pursuant to

section 718.01 and paragraphs 718.2(a)(ii.1) and (iii), I must treat the fact that this offence involved both a breachof trust and the abuse of a child under the age of 18 years as aggravating factors and that I must give primary consideration to theobjectives of denunciation and deterrence of such conduct. I note also however that the Supreme Court of Canada has expressly said thata conditional sentence "... is also a punitive sanction capable of achieving the objective of denunciation and deterrence." (See Proulx,supra at page 468). A similar finding was made in R. v. Lawson [2001] O.J. No. 1562 (Ont.

S.C.J. per Hill J.) where a conditional sentence was imposed in acase of breach of trust arising out of sexual activity between a court escort officer and a female prisoner. In that case, Hill J. accepted that"The dominant sentencing principles applicable are denunciation and general deterrence." After considering all the circumstanceshowever, and the reasoning of the Supreme Court of Canada in Gladue and Proulx, he concluded that, "Denunciation of the offender'sconduct and general deterrence can both be served by the imposition of punitive conditions." ....

Valerie Beaudry, age 28, is appearing before the court for the first time. Her crime is a serious one. It is serious enough to warrant aperiod of imprisonment in the range proposed to me. Ms. Beaudry did not injure her son herself. She was not aware of the severity of hisinjuries. That being said, I note that she breached her very sacred trust as a parent when she failed to take him to hospital, and put him atrisk of very serious complication arising from his injuries. While Jacob is currently making good progress, it is still too early to know thelong-term consequences of this offence. Ms.

Beaudry's reasons for breaching her trust and committing this offence included a fear ofwhat Family and Children's Services would do. This is no excuse for what she did. I am more sympathetic however to the fact that shewas also intimidated by her abusive boyfriend who told her not to go to hospital with the child. This too does not legally excuse Ms.Beaudry but it is a mitigating factor. Other mitigating factors include her guilty plea and her extensive involvement in counselling andpsychiatric treatment over the past 20 months.

Taking into account these facts and those expressed throughout these Reasons for Sentence, I am in agreement that this is an appropriatecase for the sentence of imprisonment to be served in the community. This is the position taken by both Crown Counsel and counsel forMs.

Beaudry, and concurs with that of the author of the pre-sentence report. [47] (It appears that Harris J. also found it necessary to consider s. 718.2(e), which requires the court to consider all availablesanctions other than imprisonment that are reasonable in the circumstance for all offenders, with particular attention to the circumstanceof aboriginal offenders.) Conditional sentences were also imposed for s. 215 offences in R. v. Campbell, [2005] O.J. No. 3642 (Ont. SupCt. J.) and R. v. Guimond, 2010 MBPC 33.

Campbell involved a failure to adequately supervise a child, resulting in the child falling froma third-floor window, being rendered paraplegic, and ultimately dying. The father received a one-year conditional sentence for failing toprovide necessaries. Guimond also involved injuries to a child resulting in death, when the child was left temporarily unsupervised whilethe accused used the bathroom and fell down a steep flight of stairs. The accused had a related record, including a prior conviction forassault causing bodily harm against the same child and his sister.

After double credit for 90 days pre-trial custody, the offender receiveda sentence of 18 months conditional, followed by three years probation. [48] A conditional sentence was denied in R. v. Peterson, (ON CA), [2005] O. J. No. 4450 (Ont. C.A.), leave toappeal refused at [2005] S.C.C.A. No. 539, where a son failed to provide the necessaries of life to his father. The majority of the OntarioCourt of Appeal, per Weiler J.A., affirmed the custodial sentence, with the qualifier that this did "not mean that a conditional sentencemay not be appropriate in some cases.

When a trial judge decides to impose or not impose a conditional sentence, the judge engages in adiscretionary exercise that is entitled to considerable deference" (para. 58). Borins J.A., dissenting in part, would have substituted aconditional sentence. [49] Ms. Maloney provided a written statement to the court. She stated, in part:

The past 2 1/2 years have been incredibly long and stressful. Mitchell and I have lost both of our children, and it tears us apart inside. AM and SM is everything to us and always will be. We know that we will never get our kids back and that is the most hurtful situation that we have in our heads and hearts every day. We would love to still go to our visits and have a relationship with AM and SM. [ 50 ] In many ways this is likely the strongest deterrence possible from any sentence this court imposes. [ 51 ] Counsel for Ms. Maloney seeks a conditional sentence in the range of nine to eighteen months.

Alternatively, she suggests a sentence of three to six months' custody, a position supported by Barry , supra , R. v. Ward , 2007 ONCJ 333 , and R. v. J.R.B. , [2003] N.J. No. 9 . She notes that Grant is the only case referenced by the Crown in which a sentence of more than one year in custody was imposed, and it is distinguishable for reasons already discussed. [ 52 ] Counsel also cites R. v. Chittamath , 2008 ONCJ 444 , which was affirmed at 2009 ONCA 239 .

It should be noted, however, that the Ontario Court of Appeal found that the sentence in that case was manifestly unfit, and would have substituted a much longer custodial term but for the fact that the sentence was already served, and that fresh evidence answered "to a considerable extent the trial judge's concern about the respondent's failure to appreciate the gravity and seriousness of her crime" (paras. 5-6).

This case cannot be taken as authority for a short custodial sentence, but it is distinguishable in terms of the extent of the injuries and the fact that the injuries led to death. [ 53 ] This is not a case where the parent has been proven to have directly caused the injury, to have deliberately delayed seeking medical treatment for the child, or to have mistreated or neglected the child over an extended time period. Rather, all that has been proven is that the parents failed to provide the necessaries of life.

For the reasons previously outlined, this sentence is imposed on the basis of the relatively lower degree of culpability associated with a temporary lack of supervision, as compared to direct infliction of the injuries by the offenders themselves. I am not satisfied that a prison sentence is required for purposes of denunciation or general deterrence. I believe these purposes can be met with a conditional sentence for Ms. Maloney. Accordingly, Ms. Maloney shall serve a sentence of one year in the community, followed by two years' probation. Mr. Chapman [ 54 ] With respect to Mr.

Chapman, the Crown notes his continued denial of responsibility for SM's injuries, and his apparent belief that those injuries are not significant or long-lasting. The Crown notes Mr. Chapman's criminal record, which includes crimes of violence, and argues that his pre-sentence report leads to the conclusion that it is unlikely that "anything short of a lengthy period of incarceration will deter [him] from re-offending." The Crown seeks a sentence of 48 months incarceration for Mr. Chapman. As with Ms. Maloney, the Crown appears to premise its position on the belief that Mr.

Chapman caused the injuries directly, but I cannot sentence on that basis. I also note that, while the pre-sentence report raises questions about Mr. Chapman's likelihood of re-offending and the possibility of domestic violence (of which there was no evidence before the court), Mr. Chapman is being sentenced on the basis of failure to adequately supervise AM, resulting in injuries to SM. [ 55 ] In considering whether a conditional sentence is available for Mr. Chapman, the first two criteria – lack of a minimum sentence, and the absence of a maximum sentence of ten or more years – apply as in the case of Ms.

Maloney. Despite his record, in the circumstances there is no justifiable basis to impose a sentence greater than that imposed on Ms. Maloney. I would therefore sentence him to a one year custodial sentence. On the third criteria – whether allowing him to serve his sentence in the community would endanger the safety of the community – the probation officer's concerns about potential to re-offend are relevant, but Mr. Chapman does not have unrestricted access to the victim. Further, the circumstances of the offence are not likely to be repeated. While I acknowledge Mr.

Chapman's criminal record, and the evidence of his temper, I am not convinced that permitting him to serve his sentence in the community would, in the circumstances, be likely to endanger the safety of the community. [ 56 ] His counsel submits that Mr. Chapman has suffered ridicule in the community; as with Ms. Maloney, I do not find this a significant factor in determining his sentence. Nor do I agree with the submission that Ms. MacDonald's report is merely a "personal opinion" that should receive little or no weight.

I do agree, however, that a denial of guilt is not an aggravating factor. [ 57 ] In all the circumstances, I agree with counsel's submission that incarceration is not required for the purpose of general

deterrence, denunciation, or otherwise. He shall serve a sentence of one year in the community, to be followed by two years' probation. Conditions [ 58 ] Both offenders serve their sentences under house arrest, with exceptions for employment, education, medical treatment, meetings with lawyers and court appearances, counselling, and religious services. Ms. Maloney is also permitted scheduled access visits with SM and AM, while Mr. Chapman is permitted access visits with SM. MacAdam, J.