HIS MAJESTY THE KING - v. -, 2023 SKKB 128

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 128 Date: 20 23 06 19 Docket: CRM-RG-00144-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - JUSTIN ANDERSON PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the children herein shall not be published in any document or broadcast or transmitted in any way. Counsel: Christopher D. White and Dawid Werminski for the Crown R. Gregory Wilson for the accused JUDGMENT June 19, 2023 KILBACK J. I.

Introduction [ 1 ] On March 27, 2023, Justin Anderson entered a guilty plea to a charge of unlawfully confining three-year-old K. contrary to s. 279(2) of the Criminal Code , RSC 1985, c C-46 . This is the sentencing decision. II. Circumstances of the offence

Background [ 2 ] At all relevant times, Mr. Anderson was in a relationship with Brittney Burghardt. The couple had one son together named G. Ms. Burghardt had two other children named K. and B. All three children were under three years of age. [ 3 ] Ms. Burghardt lived in a house on Retallack Street in Regina, Saskatchewan with the children. Mr. Anderson lived in a separate residence, though he spent most days at the house and would stay overnight with Ms. Burghardt once or twice each week. Mr.

Anderson was a father figure to all three children. [ 4 ] Children’s Aid workers occasionally visited the house because K. had previously been in the care of the Ministry of Social Services. Ms. Burghardt was enrolled in parenting support programs in the months before the events giving rise to these charges. Events of June 9, 2021 [ 5 ] At approximately 10:32 a.m. on June 9, 2021, Mr. Anderson called 911. He told the operator that his child, K., had fallen down the stairs and was unresponsive. Mr.

Anderson said K. often had trouble walking, and that her doctor was not doing anything about it. [ 6 ] When emergency medical services [EMS] arrived, K. was found lying on a mattress in the upstairs bedroom. She was pale, breathing sporadically, and appeared to be unconscious. EMS noted bruising on her arms, right ribcage, and chin. Her pupils were dilated and her belly was distended. [ 7 ] EMS was able to stabilize K., and she was transported to Regina General Hospital. On arrival, it was determined that K. had sustained a significant subdural bleed in the left side of her brain.

Following surgery to reduce the pressure on her brain, K. was transported by air ambulance to the Children’s Hospital in Saskatoon, Saskatchewan later that evening. [ 8 ] The next morning, on June 10, 2021, K.’s medical condition was again evaluated. The swelling in her brain had not subsided. She showed lack of any neurological improvement and continued to have difficulty breathing on her own. On June 11, 2021 at 11:35 a.m., K. was declared brain dead. [ 9 ] An autopsy was performed on June 14, 2021. The cause of K.’s death was determined to be blunt force trauma to the head.

K. was one month shy of her third birthday when she died. Police Investigation [ 10 ] Ms. Burghardt and Mr. Anderson both provided statements to police. [ 11 ] Mr. Anderson was interviewed on June 9, 2021. He told police he was not at the house that morning. He said he received a call from Ms. Burghardt, who told him K. had fallen down the stairs and was badly hurt. [ 12 ] Mr. Anderson told police he left his residence and went over to Ms. Burghardt’s house. Upon arriving, K. was unconscious but breathing on her own. Ms.

Burghardt told him K. had fallen from the third or fourth stair and hit her head on the landing. [ 13 ] Mr. Anderson told police this was not surprising because K. had difficulty walking and navigating stairs. He said K. was always “acting like a little princess” and pushing boundaries more so than an average three-year-old. Mr. Anderson said the information he relayed to 911 had come from Ms. Burghardt. [ 14 ] Ms. Burghardt was also interviewed on June 9, 2021. She told police that while she was walking down the stairs with K., K. lost her balance, tumbled down the last few stairs, and hit her head. [ 15 ] Ms.

Burghardt told police she then took K. back upstairs. She said K. could not stand on her own, and collapsed. She was not lucid and felt like a rag doll. Her movements were abnormal, her eye movement was odd, and her breathing sounded funny. [ 16 ] Ms. Burghardt said she panicked and called Mr. Anderson to help. She did not call 911 because she preferred to wait for Mr. Anderson to do that. Ms. Burghardt denied being in any way responsible for K.’s injuries. [ 17 ] During their investigation, police attempted to confirm that K. had difficulty walking and navigating stairs.

Police spoke to K.’s daycare workers and members of the community support program Ms. Burghardt was accessing. They also spoke to K.’s former foster family, with whom K. had resided for approximately 11 months in 2020. No one shared the concern that K. had any difficulty walking, and police concluded Mr. Anderson and Ms. Burghardt had not been truthful in their statements. [ 18 ] Police seized cell phones from Mr. Anderson and Ms. Burghardt, and a series of text messages between them were found.

The messages indicated they had been confining and binding K. almost daily using various types of household tape for over a month before her death. [ 19 ] Ms. Burghardt’s residence was searched. Police found three rolls of green painters tape in a television stand, bundles of used tape in a diaper box near the change table, a roll of partially used tape in the same room, and a nearly empty roll of black hockey tape under a bed. [ 20 ] In July 2021, Ms. Burghardt was again interviewed by police. She admitted she lied about what happened, and that K. had not fallen down the stairs. Ms.

Burghardt confirmed she and Mr. Anderson had been taping K. down because they were having trouble keeping her in bed at nighttime and during daytime naps. Of the three children in the household, only K. was confined with tape.

[ 21 ] Ms. Burghardt admitted that on the morning of June 9, 2021, she went upstairs to take the tape off K. and get her up. Ms. Burghardt got K. out of bed and sat her down, but K. would not listen. K. was given a time out and was ordered into a corner, but she continued to refuse to listen. [ 22 ] Ms. Burghardt told police she grabbed K. under the arms and threw her into the wall, causing the back of her head to strike the wall. K. got back up but still refused to listen. Ms. Burghardt became angry and threw K. hard into the wall three or four times. After the last time, K. collapsed.

She became unresponsive and unable to stand on her own. Ms. Burghardt told police she then tried to contact Mr. Anderson, but was unable to reach him for almost an hour. [ 23 ] Ms. Burghardt subsequently pleaded guilty to manslaughter and unlawful confinement for her role in these events. [ 24 ] Mr. Anderson was also interviewed by police in July 2021. He stated K. had significant behavioral issues, especially at bedtime and naptime. Mr. Anderson admitted having taped K. at sleep time, and admitted that it was his idea. He said Ms. Burghardt was a willing participant. Mr.

Anderson described the taping as corrective action. Circumstances of K.’s Confinement [ 25 ] There was an internet enabled camera, or “nanny cam”, set up to observe K.’s crib. Using an app on their phones, Mr. Anderson and Ms. Burghardt could view live video of K.’s crib from the nanny cam. Mr. Anderson could also verbally communicate with K. through the app from his own residence. [ 26 ] A booklet containing screenshots of various messages exchanged between Mr. Anderson and Ms. Burghardt via text message, Facebook messenger, and Xbox messenger was filed as Exhibit P-2. When the messages were exchanged, Mr.

Anderson was generally not at Ms. Burghardt’s residence. Instead, he was observing K. remotely from his own house while Ms. Burghardt was with the children in her house. [ 27 ] The following are examples of the messages exchanged between Mr. Anderson and Ms. Burghardt. These messages provide insight into the circumstances and the extent to which K. was confined with tape. [ 28 ] On May 6, 2021, Ms. Burghardt sent a message to Mr. Anderson stating that K. was walking around again last night. Mr. Anderson replied that he had an idea about what they could do about that.

He stated, “So I’ll show u what we will do every time we put her to bed” “or even a time out.” [ 29 ] On May 16, 2021, Mr. Anderson stated that K. still has not listened and that she was back to playing with her hands. As explained below, Mr. Anderson was concerned that K. had been picking at her hands and face, causing them to bleed. When Ms. Burghardt sent a message saying that K. does not want to listen, Mr. Anderson replied that “she listens when tape is involved.” [ 30 ] On May 21, 2021, Ms. Burghardt stated that K. somehow managed to take the socks off her hands.

It appears they had been placing socks over K.’s hands to prevent her from picking at them. Mr. Anderson asked if she had done it the way he did it. Ms. Burghardt responded that she thought she had put enough tape on, or at least that the tape was put on tightly enough to restrain her. Mr. Anderson asked Ms. Burghardt to show him when he got there. [ 31 ] On May 22, 2021, Ms. Burghardt invited Mr. Anderson to look at how K. was taped. Mr. Anderson responded asking if it was too tight to cut off circulation, to which Ms. Burghardt responded “nope”. [ 32 ] Mr. Anderson later sent a message to Ms.

Burghardt stating that K. is moving towards the edge, presumably of the crib, and that she took the tape off. He asked if he needed to come back. Ms. Burghardt said no, and that she will deal with K. Mr. Anderson asked if she was sure, and said that she may not have a choice as K. is not behaving. Mr. Anderson stated the longer nothing happens, the more she does. He then stated that K. was just picking at her hands again and taking the tape off more, and that is why she was moving. [ 33 ] Later that evening, Ms. Burghardt sent photos to Mr. Anderson, asking “is this better?” Mr.

Anderson replied “yea I was watching”. [ 34 ] The photos sent to Mr. Anderson are in a booklet of photographs marked as Exhibit P-1 behind Tab 1. They show K. laying on her back in her crib with her arms by her sides. She is bound with tape across her torso and arms. Her legs are side by side and appear to be bound together. A pair of pants has been put over her head, covering her head and eyes. [ 35 ] On May 23, 2021, Ms. Burghardt asked how Mr. Anderson would tape K.’s knees to keep her from lifting her knees up. Mr. Anderson told Ms.

Burghardt to remember how he did it, and stated he laid the tape from her thigh to her shins. He said to cover her knees and have it tight enough to restrict movement. [ 36 ] Later that evening, Mr. Anderson sent a message to Ms. Burghardt stating, “She can breathe, right?” Ms. Burghardt replied that yes, she can breathe, and said she did not know how K. got out because she had “taped her good.” [ 37 ] On May 24, 2021, Mr. Anderson stated that K. is kicking around and is going to get her feet free. Ms. Burghardt responded that she thinks they are out of tape, especially with how much she has been using.

Later, Mr. Anderson said there is more tape on the window, and that K. is picking at her hands again and trying to take the “thing” off. Ms. Burghardt thanked him and said she will tape K.’s hands once she is done nursing.

[ 38 ] Ms. Burghardt could not find the tape and stated she must have used it. Mr. Anderson suggested other places to look. He said there were five full rolls of tape, and that there is no way she went through all five rolls in two days. [ 39 ] On May 26, 2021, Mr. Anderson sent a message to Ms. Burghardt stating that K.’s hands are loose, she was picking at her hand, and that she has been kicking the crib. Mr. Anderson then asked Ms. Burghardt to smack K. for him because she rolled her eyes at him when he told her to stop moving. [ 40 ] Ms.

Burghardt texted “God tbh I fucken hate her rn.” She stated she does not know what do to with K. anymore and that she is at her wit’s end. Mr. Anderson said he knows, and “that’s one way to keep her from moving”. [ 41 ] On May 27, 2021, Ms. Burghardt stated that she put pants over K.’s head, and that she has been quiet since. Mr. Anderson responded that she is probably still awake, then said she will not like what happens next because she will be all alone by herself in a fully locked crib if she does not sleep. Mr.

Anderson stated that is her fault, and that he did not care anymore because he was more concerned about the well-being of the other children. Mr. Anderson then confirmed he does care, but not right then because K. was not listening. [ 42 ] On May 28, 2021, Ms. Burghardt stated she was pretty sure she heard K. say or cry “daddy or mommy stop it”. Ms. Burghardt said K. was still tied and that she had just taken the pants off her head. Mr. Anderson replied that he would deal with K.. [ 43 ] Later that day, Mr.

Anderson stated that K. was yelling again, and that he is about to bring the duct tape so he can tape her mouth shut. Ms. Burghardt asked why K. was acting up so badly. Mr. Anderson stated it is because she is stupid. He then said he knows she is not, but she acts like it. [ 44 ] On June 1, 2021 at approximately 10:54 a.m., Ms. Burghardt stated that she is distracted because a worker from the Children First program is coming over. Mr. Anderson responded, stating “Oh no since its children first what if they want to see K.?’ Ms.

Burghardt stated that she will just tell them that K. is sleeping even though she is not, and that she has a slight cold. Mr. Anderson then sends the following message: Yea well if they see the bruises they could take all 3 away so you will have to make sure they are convinced she’s either at daycare or at home sleeping since she does in fact have a cold [ 45 ] Mr. Anderson then stated he “risked that happening” but he does not want to see Ms. Burghardt lose the children. [ 46 ] At approximately 1:21 p.m., Ms.

Burghardt stated she was pissed off at K. because she managed to strip herself completely naked, though there was nothing in her diaper. Mr. Anderson stated that next time, she should take K.’s clothes away. He stated that K. is going to have to learn, even if that means laying in her own feces to make that happen. Mr. Anderson stated he knows it would be gross and messy, but that she would learn. Ms. Burghardt stated she is just more worried about the mattress being soiled. [ 47 ] At approximately1:53 p.m., Mr. Anderson sent a message asking Ms. Burghardt to quickly slap K. for him.

He stated “she decided to be a cheeky brat” and when he told her to go to bed and put her legs down, she slammed her foot down. Ms. Burghardt then replied “done”. [ 48 ] Several hours later, at approximately 8:24 p.m., Mr. Anderson sent a message stating “I swear to fuck Imma smack her.” He stated K. was laying down until Ms. Burghardt left the room, and that K. was now putting her feet through the bars of the crib. He then stated he can fix that by completely covering the bars with cardboard. Ms. Burghardt stated she was smacking K.’s hands which are now red. [ 49 ] On June 3, 2021, Mr. Anderson and Ms.

Burghardt exchanged messages discussing where they would live if the children were taken away. They also exchanged messages about buying more tape. [ 50 ] At approximately 4:51 p.m., Ms. Burghardt sent a message explaining that K. wet the bed. Mr. Anderson responded that she should let K. sit in it. He stated that they should make K. “sit in her own bloody piss if she wants to pull that card”, and that he “almost punched the wall after reading that.” [ 51 ] When Ms. Burghardt stated she had not yet given the children supper, Mr.

Anderson sent the following messages at approximately 5:00 p.m.: Feed her half hun as punishment for doing what she did normally for next time let her sit in it for a lot longer so she understands that one it’s gross two it’s not ok to do that at all and 3 she needs to grow the duck up before I come over ther n she will not like it Like I am overheating n now my eyes are twitching of how pissed the fuck off I am rn [ 52 ] Mr. Anderson then stated that K. had done this once before, almost a year ago.

He stated he would love to know who K. thinks she is and that if it was him, she would be eating in her room in her own piss. [ 53 ] They exchanged messages discussing covering K.’s mattress with garbage bags so there would be something to catch her urine. Mr. Anderson stated that if K. “was in the basement it would have zero issues”. [ 54 ] Ms. Burghardt stated that she would just try a second diaper. Mr. Anderson replied that Ms. Burghardt should just put K. in clothes. He then stated that right now, K. “doesn’t even deserve to have us thinking what to do about her but it’s that or spend more money on her.”

[ 55 ] Shortly after this exchange, at approximately 5:20 p.m., Ms. Burghardt sent a message stating that K. really hates being upside down. It appears that Ms. Burghardt was hanging K. upside down as a form of discipline. She asked if she could show Mr. Anderson. A video chat between the two of them then took place, lasting approximately 21 minutes. [ 56 ] On June 4, 2021, Mr. Anderson sent the following message to Ms.

Burghardt: Also she’s demanding her water I think this is the perfect chance to use it against her if she wants it so much maybe she will start to ask for shit n tell u when she needs to pee [ 57 ] In another message, Mr. Anderson stated that K. “can stay in bed for a while longer since she decided to slam her feet down when he told her to lay straight.” He then states that Ms. Burghardt can put K. upside down again if she feels like it. [ 58 ] These messages provide insight into the circumstances and the extent to which K. was confined in the last weeks of her life. III. Circumstances of the Offender [ 59 ] Mr.

Anderson says he is deeply sorry for these events, and that he had no intention of harming K. He says that K. was repeatedly picking at her hands and face, causing them to bleed. He stated his only motivation in confining K. was to correct this behavior and prevent her from harming herself. [ 60 ] Mr. Anderson is 25 years old. He grew up initially in Eston, Saskatchewan and was in the care of the Ministry of Social Services for much of his life. When he was 13, he went to the Red Willow Centre for approximately one year, then to Ranch Ehrlo.

He was adopted when he was younger, but his adoptive parents gave him up after one year after which he returned to the foster care and group home system. [ 61 ] Mr. Anderson has a grade 12 education, and has completed some training in various trades. He most recently worked on a casual basis with Conexus Arts Centre, helping with various events. He has also done some work for Ranch Ehrlo. He is currently receiving social assistance. [ 62 ] G. is Mr. Anderson’s only biological child, and he is currently the subject of child protection proceedings. Although Mr.

Anderson has requested more parenting time from the Ministry of Social Services, he currently has supervised visits with G. once per month. [ 63 ] Mr. Anderson has taken steps to improve his parenting skills. On February 16, 2023, he completed participation in the Triple P Positive Parenting Program. Mr. Anderson stated he grew up without parenting role models, and that his actions would have been different if he had known the skills he learned in this program earlier. [ 64 ] Mr.

Anderson has one previous conviction for possession of a weapon from 2017, for which he received a suspended sentence and one year probation. IV. Positions of the Parties [ 65 ] The Crown submits that a custodial sentence of at least three years would be appropriate, together with a mandatory ten year weapons prohibition under s. 109 and a mandatory DNA order under s. 487.051 of the Criminal Code . The Crown emphasizes that the offence involved a very young vulnerable victim, and a breach of trust by a person in a parental position. [ 66 ] Mr.

Anderson submits that a suspended sentence or a conditional sentence would be appropriate, together with the mandatory ancillary orders. Mr. Anderson argues that this was a case of misguided parenting, and that a community-based disposition would meet the goals of sentencing in these circumstances. V.

Sentencing Principles [ 67 ] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code : 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 68 ] Under s. 718.1, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433 , the Supreme Court explained this principle ensures that a sentence reflects the gravity of the offence and does not exceed what is appropriate given the moral blameworthiness of the offender:

[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence . This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system… … Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender . In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ Emphasis added ] [ 69 ] The gravity of the offence refers to the seriousness of the offence in a generic sense, as reflected by the potential penalty imposed by Parliament, as well as any specific features of the commission of the crime which may tend to increase or decrease the harm occasioned by the offence.

The degree of responsibility of the offender refers to the offender's moral culpability, as reflected in aspects of the offender's conduct or background which tend to increase or decrease the offender's personal responsibility for the crime. See: R v Kurek , 2018 SKQB 168 at para 34 . [ 70 ] Since this offence involves the abuse of a vulnerable person under the age of 18, under ss. 718.01 and 718.04 of the Criminal Code , primary consideration must be given to the objectives of denunciation and deterrence. [ 71 ] With these principles in mind, I begin by considering the gravity of the offence. VI.

Gravity of the Offence [ 72 ] The offence of unlawful confinement contrary to s. 279(2) of the Criminal Code is a serious offence, which carries a maximum sentence of ten years imprisonment. [ 73 ] The circumstances of this case are also serious. Mr. Anderson and Ms. Burghardt used tape to forcibly confine three-year-old K. in her crib. The manner of the confinement escalated quickly, and the goal became to keep K. quiet and still in her crib at night and during nap times. [ 74 ] Mr. Anderson increased the severity of the confinement in response to K.’s reactions.

For example, when K. was able to take the tape off or when she was observed moving, Mr. Anderson responded by telling Ms. Burghardt to use more tape and to bind K. tighter (messages of May 21). [ 75 ] Similarly, when K. was observed lifting her knees up, Mr. Anderson explained how he prevented K. from doing so by taping her from her thighs to her shins, and covering her knees tightly enough to restrict movement (messages of May 23). More tape was used until they ran out of it (messages of May 24, June 1). [ 76 ] The severity of the confinement increased until it approached complete immobilization.

This is illustrated by the photo of K. lying on her back with her arms bound to her sides, and her legs bound together (Exhibit P-1, Tab1). [ 77 ] The confinement included efforts at sensory deprivation. Pants were placed over K.’s head and eyes while she was bound, which would deprive her of the ability to see her surroundings (Exhibit P-1, Tab1; messages of May 27). Mr. Anderson also sent a message stating he is about to bring the duct tape so he can tape K.’s mouth shut (messages of May 28). [ 78 ] The goal of complete immobilization is further illustrated by Mr. Anderson’s efforts to have Ms.

Burghardt discipline K. whenever she was observed moving. For example: (

i) On May 26, Mr. Anderson asked Ms. Burghardt to smack K. for him because she kicked her crib and rolled her eyes at him when he was telling her to stop moving; (ii) On June 1, Mr. Anderson asked Ms. Burghardt to slap K. for him because when he told her to go to bed and put her legs down, she slammed her foot down; and (iii) On June 4, Mr. Anderson stated that K. could stay in bed for a while longer because she slammed her feet down when he told her to lay straight. Mr. Anderson then stated that Ms.

Burghardt can put K. upside down again if she feels like it. [ 79 ] There was also discussion of modifying the crib to further restrict K.’s movement. When K. was observed putting her feet through the bars of the crib, Mr. Anderson responded by stating he could fix that by covering the bars with cardboard (messages of June1). [ 80 ] While the confinement was taking place, Mr. Anderson also advocated depriving K. of food and water because she was wetting the bed.

[81] When K. wet the bed, Mr. Anderson stated that they should make K. “sit in her own bloody piss if she wants topull that card.” When he learned Ms. Burghardt had not yet given the children supper, Mr. Anderson suggested only feeding K. half hersupper as punishment. He stated that if it was up to him, K. would be eating in her room sitting in her own urine (messages of June 3).The next day, Mr. Anderson suggested withholding water from K., to “use it against her” so she would learn to tell Ms.

Burghardt whenshe needed to pee (messages of June 4). [82] K. was confined with tape on almost a daily basis for over a month before she died. VII. Degree of Responsibility of the Offender [83] When considering Mr. Anderson’s moral culpability, I am mindful that he has entered a guilty plea to a chargeof unlawful confinement and that he is not being sentenced in relation to K.’s death. [84] Mr. Anderson relies on R v Marks (1994), (NL CA), 91 CCC (3d) 421 (WL) (NLCA), whichwas an appeal of a sentence imposed on a charge of assault causing bodily harm, not unlawful confinement.

In that case, theNewfoundland and Labrador Court of Appeal held that physical child abuse frequently falls into two distinct types. First, cases wherethere was an expectation of causing injury or indifference as to whether injury would result. Second, cases where an unskilled parent actsout of frustration and does not fully appreciate the injuries which might result: 27 Physical child abuse frequently falls into two distinct types: (

i) The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries willresult and, (ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and, actingout of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. 28 In the first situation, there is a high degree of culpability and the Court will in most cases impose a severe sentence.

In the secondsituation, while punishment is warranted, a sentence, where such is warranted, will not ordinarily be a severe one and will usually befollowed by a period of probation, a condition of which would be that the abuser receive training and counselling to the end that furtheracts of abuse will be avoided. [85] While these categories are a useful guide in cases of child abuse, they do not displace consideration of the usualsentencing principles: R v MacDonald, 2009 MBCA 36 at para 14, [2009] 6 WWR 616. [86] Although this is a case of unlawful confinement and not assault, Mr.

Anderson argues this case falls within thesecond category and that there is a low degree of culpability which should attract a sentence which is not severe. [87] Mr. Anderson argues his moral culpability is low because this was merely a case of misguided parenting. Mr.Anderson states he had no intention of harming K., and that his only motivation in confining K. was to prevent her from picking at herhands and face and harming herself. He argues his motivation was corrective, not punitive. [88] I accept Mr. Anderson’s submission that this was his only subjective motivation for his actions.

However, I donot accept that this means his moral culpability is low. In these circumstances, I conclude his moral culpability is high, for the followingreasons. [89] First, the confinement of K. was not just a bad parenting decision borne out of a misunderstanding of the basiclimits of parental discipline. Mr. Anderson’s motivation may have been corrective, but his actions and the directions he gave to Ms.Burghardt consistently went far beyond any reasonable range of behavior for a caregiver of a three-year-old. [90] Second, Mr. Anderson knew that confining K. was wrong.

On June 1, 2021, he initiated an exchange ofmessages expressing concern about a worker from the Children First program coming to the house to see K. He stated that if the workersees the bruises on K., Ms. Burghardt could lose the children. He told Ms. Burghardt to be sure the worker is convinced K. is at daycareor at home sleeping. [91] It is apparent from this exchange that Mr. Anderson wanted to hide K. from being seen by aid workers, eventhough they were there as a resource to help with parenting issues. On this evidence, I conclude Mr. Anderson knew confining K. waswrong. [92] Third, Mr.

Anderson knew about and had access to parenting supports such as the Children First program, butdid not pursue them. Instead, he took active steps to prevent them from finding out about K.’s confinement. [93] Fourth, Mr. Anderson deliberately chose to exert his power over K. even though he was physically removedfrom the everyday stresses of parenting her at bedtime. [94] While Ms. Burghardt was in the home actively parenting the children, Mr. Anderson was in his own housewatching K. on the nanny cam. He did not have to physically deal with her sleep and behavioral issues every day. Mr.

Anderson’sexperience of these stresses was, in large part, virtual. He could have simply walked away or stopped watching the nanny cam at anytime. Instead, Mr. Anderson initiated and directed the taping and confinement process and gave instructions to Ms. Burghardt todiscipline K. for slamming her feet down when he told her to lay still. [95] While many parents engage in a battle of wills with their toddlers from time to time, Mr. Anderson chose to

remotely monitor K.’s behavior and remain engaged in a battle of wills with her. [ 96 ] The degree to which Mr. Anderson was emotionally invested in this battle is illustrated by his statements when K. wet the bed. On June 3, 2021, Mr. Anderson stated he “almost punched the wall” and that he was “overheating” and that his “eyes are twitching of how pissed the fuck off I am…” [ 97 ] Mr. Anderson’s anger was also manifest in his suggestion that Ms. Burghardt should only feed K. half her supper as punishment for wetting the bed, and in his suggestion the next day that Ms.

Burghardt should use K.’s demand for water against her to correct the behavior. [ 98 ] In these circumstances, Mr. Anderson’s actions in confining K. were not an impulsive reaction to an understandable incident of parental stress or a reaction to a moment of emotional upset, frustration, or impatience. His actions were deliberate, purposeful, and played out consistently over weeks. [ 99 ] Fifth, Mr. Anderson also appreciated the risk of injury to K.

As pointed out by defence counsel, he attempted to avoid undue physical harm to K. by making sure she could breathe when the pants were placed over her head and making sure that the tape was not applied so tightly that it would cut off her circulation. He adverted to the risk and deliberately ensured sufficient force was applied to restrain and immobilize K. without causing her undue physical harm. [ 100 ] For these reasons, I conclude Mr. Anderson has a high level of moral culpability for his actions. [ 101 ] In reaching this conclusion, I have considered that Mr.

Anderson attempted to avoid undue physical harm to K.. I have also considered that there were no accompanying assaults, and that the confinement occurred only at night and at nap times. I have also considered Mr. Anderson’s personal circumstances and the fact he lacked effective parenting role models during his upbringing. [ 102 ] I also acknowledge the Crown disagrees that Mr. Anderson’s motivation was corrective, and argues that Mr. Anderson was motivated by contempt for K.. In these circumstances, I conclude that a sentencing hearing is unnecessary to address this disagreement on the nature of Mr.

Anderson’s motivation which is appropriately inferred from the facts. Under s. 724(3)(

a) of the Criminal Code , I am satisfied that sufficient evidence on this issue was adduced at the hearing, and I accept the inference which is most favorable to Mr. Anderson. See: R v Williams , 2020 SKCA 108 at para 41 , 393 CCC (3d) 325 . VIII. Aggravating and Mitigating Factors [ 103 ] There are two statutory aggravating factors which must be considered.

Under s. 718.2(a)(ii.1) and (iii) of the Criminal Code , evidence that an offender abused a person under the age of 18 years or abused a position of trust or authority in relation to the victim are both deemed to be aggravating factors. [ 104 ] K. was under three years of age, and called Mr. Anderson dad. Although Mr. Anderson was a parental figure and in a position of trust in relation to K., he did not ensure she was safe and cared for. Instead, he bound her and gave directions to Ms. Burghardt on how to bind her effectively to prevent her from moving. K. was vulnerable and defenseless to these actions.

This engages the statutory aggravating factors under s. 718.2(a)(ii.1) and (iii). [ 105 ] There are also other aggravating factors. [ 106 ] First, Mr. Anderson played a leadership role in K.’s confinement. When interviewed by police in July 2021, Mr. Anderson admitted that taping K. was his idea. The messages also illustrate that Mr. Anderson was directing the taping and confinement process. [ 107 ] Second, the directions given by Mr. Anderson were planned and deliberate. They were not given in a single moment of frustration, but were a deliberate plan to continue to immobilize K. at night and during nap times.

When K. was observed moving, Mr. Anderson escalated the efforts to immobilize her and directed Ms. Burghardt to physically discipline K. for doing so. [ 108 ] Third, the confinement was prolonged and took place on almost a daily basis over more than a month. [ 109 ] There are also several mitigating factors which must be considered. [ 110 ] First, Mr. Anderson has entered a guilty plea. [ 111 ] Second, he has expressed remorse for his actions , and states he had no intention of harming K..

He states his only motivation in confining K. was to prevent K. from harming herself and to correct her behavior in repeatedly picking at her hands and face. [ 112 ] Third, Mr. Anderson has also taken and completed participation in the Triple P Positive Parenting Program on February 16, 2023 in an effort to improve his parenting skills. IX. Other Sentencing Decisions [ 113 ]

Section 718.2 (

b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 114 ] Counsel were unable to identify any cases in which an offender is sentenced only for the offence of unlawful confinement, without concurrently being sentenced for other offences. However, both the Crown and Mr. Anderson cited several decisions in support of their position on sentence. [ 115 ] In support of its submission that a three year term of imprisonment is appropriate, the Crown cites R v Cook ,

2013 BCSC 495 [Cook]. In that case, the father was convicted of unlawful confinement of his 13-year-old son and of offering anindignity to a human body. For two or three days before his death, the son was tied up and secured in the master bedroom of the familyhome. The parents suspected the son of abusing his younger brother, and resorted to this confinement to keep the boys apart rather thanemploying the normal range of parenting techniques or seeking assistance from social services agencies. The father had a dated criminalrecord, which included 11 prior convictions to assault.

On the charge of unlawful confinement, the accused was sentenced to a term ofimprisonment of three years. [116] The Crown also cites R v B.W., 2006 NLCA 43, 211 CCC (3d) 85. In that case, two young children weredeprived of food, drink and access to washroom facilities, and were left to sleep on the floor in a room without heat. Almost every nightfor a two or three month period, their bodies were taped so they could not move, and in the morning, the tape was painfully ripped off (atpara. 44).

The Newfoundland and Labrador Court of Appeal held that a term of imprisonment of three years would have been appropriateon each of the charges of unlawful confinement (paras. 33-35), although there were numerous other convictions. [117] Mr. Anderson argues that a community-based disposition, either a conditional sentence or a suspended sentencewith a period of probation, would be appropriate. A conditional sentence is available for unlawful confinement following the cominginto force of

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, SC 2022, c 15 in November 2022. [118] In support of his position, Mr. Anderson cites R v J.K, 2021 ONCJ 226. In that case, a mother was convicted ofassault and unlawful confinement of her eight year old son. The accused assaulted her son over a one and one-half year period to punishhim for misbehavior. On occasion, she locked him in the basement to discipline him.

On the charge of unlawful confinement, the courtimposed a conditional sentence of one year consecutive to conditional sentences imposed on the assault charges (para. 89). [119] Mr. Anderson also cites R v C.O., 2022 ONCJ 409 [C.O.,], where two young and impoverished parents werecharged with forcible confinement of their young daughter and failing to provide her with the necessaries of life. The daughter wasconfined to her room. She was prevented from opening the bedroom door because the doorknob to her room was attached by a rope to adoor across the hall.

The conditions in the room were filthy, but there was no evidence the daughter was physically abused. The courtsuspended sentence and imposed a 12-month period of probation. [120] I have considered each of these decisions and others cited by counsel in determining a fit sentence. X. Decision [121] As a general principle, the physical abuse of children, including their unwarranted restraint, attracts a period ofincarceration: Cook at para 43.

It has been held that the imposition of substantial sentences is essential to meet the purposes ofsentencing in order to protect defenseless children from mistreatment by their parents or other caregivers.

See: R v W.R. (2004), (ON CA), 197 CCC (3d) 566 (Ont CA) at para 16, citing R v Naglik (1991), (ON CA), 65 CCC (3d)272 (Ont CA), reversed on other grounds, (SCC), [1993] 3 SCR 122; R v Cudmore (1972), (ON CA),5 CCC (2d) 536 (Ont CA); R v Cooper (1985), 9 OAC 389 (Ont CA); and R v Sundh (1989), 32 OAC 319 (Ont CA). [122] In my view, a conditional sentence or other community-based disposition is not appropriate in thesecircumstances. In reaching this conclusion, I have considered the principle that the least restrictive sanction should be imposed, and thata custodial sentence should be the last resort.

I have also considered that the goals of deterrence and denunciation can, in an appropriatecase, be met by a conditional sentence. See: C.O. at para 41. [123] Under ss. 718.01 and 718.04 of the Criminal Code, primary consideration must be given to the objectives ofdenunciation and deterrence. In cases of child abuse, effective denunciation of the actions involved is often only accomplished by theimposition of a term of imprisonment: Cook at para 37, citing R v A.N.C., (Ont Sup Ct) at para 9. [124] I conclude this is one of those cases.

The need for denunciation in the circumstances of this case is such thatincarceration is the only suitable way in which to express society's condemnation of Mr. Anderson’s conduct: R v Proulx, 2000 SCC 5 atpara 106, [2000] 1 SCR 61; Cook at para 37. [125] After taking into consideration the principles of sentencing, the circumstances of the offence, the aggravating andmitigating factors, the decisions cited by counsel, and the personal circumstances of Mr.

Anderson, I conclude that the appropriatesentence is a term of imprisonment for two years. [126] On count 1 on the Indictment, I find that the appropriate sentence is imprisonment for a period of 731 days (365 x2 = 730 + 1 day because 2024 is a leap year = 731 days). [127] Under s. 719(3) of the Criminal Code, in determining the sentence to be imposed I may take into account anytime Mr. Anderson spent in custody for the offence for which he is being sentenced. It is agreed that Mr. Anderson has spent 45 days inpre-sentence custody.

I am prepared to give him the maximum credit allowed, which pursuant to s. 719(3.1) is one and one-half days foreach day spent in custody. This amounts to 68 days of pre-sentence custody credit (45 x 1.5 = 68). [128] Taking this pre-sentence custody credit into account, Mr. Anderson shall serve 663 days in prison (731 - 68 =663) going forward. [129] On count 1, I also impose two ancillary orders: (

i) Pursuant to s. 109 of the Criminal Code, Mr. Anderson is prohibited from possessing any firearm, crossbow, prohibitedweapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years; and (ii) Pursuant to s. 487.051 of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samplesof bodily substances from Mr. Anderson that are reasonably required for the purposes of forensic DNA analysis.

[ 130 ] In light of Mr. Anderson’s financial circumstances, the victim’s surcharge is waived pursuant to s. 737 of the Criminal Code . J. K.D. KILBACK