HIS MAJESTY THE KING - v. –, 2023 SKKB 124

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 124 Date: 20 23 06 16 Docket: CRM-RG-00192-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and – BRITTNEY BURGHARDT 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The publication of these reasons is restricted such that any information that could identify the children herein shall not be published in any document or broadcast or transmitted in any way.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 for the Crown Thomas Hynes for the accused DECISION ON SENTENCE KLATT J. June 16, 202 3 A.

Introduction [ 1 ] This is a case involving the absolute abdication of a parent’s obligations that came to a head with the killing of a two-year-old toddler by the person who was entrusted with keeping her out of harm’s way. [ 2 ] In the six or seven weeks leading up to June 9, 2021, Brittney Burghardt had become disenchanted with her two-year-old child K. because she had trouble going to sleep. Around the end of April 2021, Ms. Burghardt discussed what to do about her toddler with her then boyfriend, Justin Anderson. Although Mr. Anderson was not the toddler’s father and did not live with Ms.

Burghardt, he suggested she start taping the child up during nap time and bedtime. Initially, Ms. Burghardt expressed reservations about the idea, but she decided to start taping the child up in her bed. [ 3 ] Despite Ms. Burghardt’s various restraining methods that continued for some six weeks, the toddler’s sleep habits did not improve. [ 4 ] In the morning of June 9, 2021, Ms. Burghardt became angry and threw the toddler against the wall three or four times until she did not move. Ms. Burghardt killed her child. [ 5 ] On November 22, 2022, Ms.

Burghardt plead guilty to manslaughter, contrary to s. 236 of the Criminal Code , RSC 1985, c C-46 and unlawful confinement contrary to s. 279(2) of the Criminal Code . A pre-sentence report was ordered and counsel made their respective sentencing submissions before me on March 17, 2023. [ 6 ] The sentencing positions of Crown and defence are far apart. Apart from the analysis of proportionality, the

main issue here is the extent to which Ms. Burghardt’s cognitive functioning mitigates her moral culpability. B. The Circumstances of the Offences [ 7 ] At the time of K.’s death, Ms. Burghardt lived alone with K. and her two other children: B. (then approximately 19 months old) and G. (then 5 months old). Ms. Burghardt was in a relationship with G.’s father, Justin Anderson but he did not live with them. 1. Events of June 9, 2021 [ 8 ] On June 9, 2021, at approximately 10:30 a.m., Mr. Anderson called 9-1-1 from Ms. Burghardt’s house. He told the operator that K. had fallen down the stairs at about 9:00 a.m.

He further said that the doctors were not doing anything about K.’s walking and that she often tripped. [ 9 ] When emergency medical services [EMS] arrived, they went into the bedroom and found K. who appeared to be unconscious and breathing shallowly. K. had a low heart rate, bruising, and a distended belly. EMS started chest compressions and continued to try to save her life for about 30-40 minutes. They transported K. to the Regina General Hospital where it was determined that she had a significant subdural hematoma on her brain and swelling around the brain.

The doctors attempted to drain the hematoma but decided to airlift her to Jim Pattison Hospital in Saskatoon later that evening. [ 10 ] K.’s condition did not improve. Surgery was performed to attempt to drain the blood around her brain, but the swelling did not abate and the bleeding continued. On June 11, at 9:30 a.m., K. was declared brain-dead. [ 11 ] An autopsy was performed, and it was determined that K. died from blunt force trauma to the head. She was just one month shy of her third birthday when she died. 2. Ms. Burghardt’s June 9, 2021 Statement to the Police [ 12 ] On June 9, 2021, Ms.

Burghardt gave her first statement to the police. She said she had to carry K. down the stairs and that she had to encourage her to walk on her own. She said she was in a hurry and may have rushed K. down the stairs. Ms. Burghardt said that K. lost her balance and fell down a few stairs, hitting her head on the floor. [ 13 ] Ms. Burghardt said K. could not stand on her own. She said she called Mr. Anderson and waited for him to arrive. 3. Mr. Anderson’s June 9, 2021 Statement to the Police [ 14 ] Mr. Anderson told the police that he was not at Ms. Burghardt’s house at the time K. was injured.

He said he looked at his phone and saw several missed call notifications from Ms. Burghardt. When he did speak to Ms. Burghardt, she told him that K. fell down the stairs. He also said that K. often pushed boundaries and “acted like a little princess”. 4. The Police Investigation [ 15 ] After the June 9, 2021 police interviews, the police spoke to numerous people including K.’s daycare providers, members of the community support program who had been supporting Ms. Burghardt as well as K.’s former foster parents.

They told the police that there were no problems with K.’s mobility and, according to all, K. was a happy child who sometimes had trouble sleeping. [ 16 ] The police seized the cell phones from Mr. Anderson and Ms. Burghardt. Numerous text messages were exchanged between the two that revealed disturbing new information. Even though Mr. Anderson did not live with Ms. Burghardt, he was monitoring K. in her bedroom with the use of a web-cam that fed live video to his cell phone. He could also speak to K. and issue instructions to Ms. Burghardt through the web-cam from his house. [ 17 ] Ms. Burghardt and Mr.

Anderson were angry that K. moved around in her bed and they plotted to confine K. to prevent her from doing so. For the five or six weeks prior to K.’s death, Ms. Burghardt and Mr. Anderson used various methods and household tape to bind and restrain her. [ 18 ] At first, Ms. Burghardt expressed her reluctance to Mr. Anderson when he suggested that they tape K.’s arms to her body to prevent her from moving around or playing with her hands. In short order, Ms. Burghardt willingly adopted the plan and began to tape her hands.

She tried taping socks to K.’s hands but became angry when she managed to take the socks off as indicated in the following text exchange: Ms. Burghardt [B]: Fuck K. damn it…somehow managed to take her socks off her hands idk how Mr. Anderson [A]: did I [ sic ] do it the way I did it B: yea I thought I had put enough tape on or at least tight enough A: show me when I get there (Exhibit P2, page 7) [ 19 ] Mr. Anderson continued to monitor K.’s movements in bed and alerted Ms. Burghardt when he saw her putting

her legs in the air or making any movements that were indicative of her being awake. Often, Ms. Burghardt would send him photos of K. taped up either for his approval or alternative suggestions. Soon, Ms. Burghardt began taping K.’s legs the way Mr. Anderson showed her. Mr. Anderson told Ms. Burghardt to tape K.’s legs from her thigh to her shin tight enough to restrict movement. [ 20 ] None of their efforts at confinement or the amount of tape they used were successful in preventing K. from moving around in her bed. At one point, Mr. Anderson asked Ms.

Burghardt if K. could breathe and she said: B: And yes she can breath B: God I dnt even know how she got out like I taped her good to (Exhibit P2, page 14) [ 21 ] When Mr. Anderson alerted Ms. Burghardt that K. was kicking around and was going to get her feet free, she replied: B: I think we are outta tape hun especially with how much iv been using lol (Exhibit P2, page 15) [ 22 ] At some point Ms. Burghardt moved K. to a crib but this did not assist in keeping K. still. Mr. Anderson notified Ms. Burghardt that K.’s hands were loose and she was kicking the crib.

He said: A: Her hands are loose love she was just picking at her hand again A: And kicking the crib she’s been setting it off every couple seconds A: Can you smack her for me she rolled her eyes at me telling her to stop moving B: Sorry I fell asleep A: it’s ok sorry for waking u B: God tbh I fucken hate her rn (Exhibit P2, page 19) [ 23 ] At one point, Ms. Burghardt placed a pair of shorts over K.’s head after tying her arms to her side. She told Mr. Anderson that K. had been quiet ever since.

The following exchange then occurred: A: Probably still awake A: Well she won’t like what happened next cause she’s gonna be all alone by her self n fully locked in the crib is she don’t sleep then that’s her fault idc anymore I’m more concerned about our son n B.’s well being B: R u saying u don’t care bout her well being jw A: I do but rn no as she won’t listen B: Ok just wanted to clarify as it just sounded like u didn’t care at all sorry baby (Exhibit P2, page 21) [ 24 ] On May 28, 2021 Ms.

Burghardt was aware that the confinement was distressing K.: B: God no idea I she was sleep crying but omg like I’m pretty sure she was legit crying for me…she was also crying early this morning A: Who B: The brat A: Ok well doesn’t change anything does it B: Nope A: Well she gets to do what ever the fuck she wants to do now after I switch the rooms well besides be out of the crib that is B: I can try n help n omg I’m pretty sure I just heard her say/cry daddy or mommy stop it A: Wtf B: Right like she’s still tied I just took the pants off her head

(Exhibit P2, pages 22-23) [ 25 ] Later text messages on June 1, 2021 revealed that Ms. Burghardt was expecting a visit from her support workers. She and Mr. Anderson were concerned about K.’s bruises and Mr. Anderson suggested that if the worker saw the bruises, all three children would be apprehended. Ms. Burghardt told Mr. Anderson that when the workers came, she would lie and tell them K. was sleeping and that she had a slight cold. [ 26 ] Mr.

Anderson’s instructions were not restricted to how to restrain K.: A: can you quickly slap K. for me B: Y n k A: she decided to be a cheeky brat n when I told her to go to bed n put her legs down she slammed her foot down B: Done A: that was fast love u but yea idk who she thinks she is but that’s not ok (Exhibit P2, page 29) [ 27 ] Into the month of June, Ms. Burghardt and Mr. Anderson discussed various other forms of punishment such as reducing K.’s food intake by half and making her lay in her own urine or feces if she persisted in taking her diaper off. At one point, Ms. Burghardt hung K. upside down.

After telling Mr. Anderson that K. hated being hung upside down, Mr. Anderson asked her to show him. Ms. Burghardt sent a video recording in which she is hanging K. upside down. [ 28 ] Other photographs sent by Ms. Burghardt to Mr. Anderson were tendered into evidence in a booklet of photographs marked as Exhibit P-1. There are two photos showing 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 shorts, used as a hood, had been put over her head, covering her head and eyes. [ 29 ] The Crown stated that Ms. Burghardt also admitted to Mr. Anderson that on the morning of June 9, 2021, she “may” have thrown K. around “a bit”. [ 30 ] The police executed two search warrants at Ms. Burghardt’s house. They seized various rolls of tape, some spent. There was a roll of hockey tape under K.’s bed and pieces of tape on her sleeper. 5. Ms. Burghardt’s July 2021 Statement to the Police [ 31 ] In July 2021, the police re-interviewed both Ms. Burghardt and Mr. Anderson. Ms.

Burghardt admitted that she had lied to police earlier. She told the police that they had been taping K. up during her naps and at night. [ 32 ] Ms. Burghardt said that on the morning of June 9, 2021, she had gotten K. out of bed and sat her down. K. was not listening. Ms. Burghardt said she threw K. against a wall and K. just “glared” at her. She then threw K. against the wall three or four more times. K. fell to the ground and could not get up. [ 33 ] Ms. Burghardt did not call 9-1-1. Instead, she began trying to contact Mr. Anderson. She called him several times before finally reaching him. When Mr.

Anderson arrived at Ms. Burghardt’s house, they took the time to concoct their story. Over an hour elapsed between the time K. fell to the ground and the time Mr. Anderson called 9-1-1. C. Circumstances of the Offender 1. Family History [ 34 ] Ms. Burghardt is now 28 years old. She was the only child of her parents who separated when she was 11 years old. After her parents’ separation, she lived with her mother at the Isabelle Johnson Shelter for six weeks then at Sofia House for a year.

Ultimately, she moved in with her father because she found her mother treated her like a child and would not allow her to go out with friends. When she was 17 years old, she left her parents’ care because she wanted to live with her then boyfriend. 2. Education [ 35 ] Ms. Burghardt attended a modified high school program at F.W. Johnson High School and graduated with honours. 3. Employment History [ 36 ] Ms. Burghardt told the probation officer who prepared the pre-sentence report that she had never had a job. She did however, complete some work placements in high school as part of the modified program.

She has received benefits through the Saskatchewan Assured Income for Disability and reported no difficulty meeting her monthly expenses. 4. Prior Criminal Convictions [ 37 ] Ms. Burghardt has no prior criminal record.

5. Substance Abuse [ 38 ] Ms. Burghardt reported no significant history of substance use. No substance use was identified as being a factor in the offences she committed. 6. Pre-sentence Custody [ 39 ] Ms. Burghardt spent 126 days in pre-sentence custody before she was released. 7. Cognitive Functioning [ 40 ] Since 2019, and at the time of the offences, Ms. Burghardt was receiving intensive supports from the Ranch Ehrlo Family Treatment Program [FTP] and Catholic Family Services.

The voluminous materials filed from the Ranch Ehrlo workers indicate she was living independently in a Ranch Ehrlo home while caring for her children. She moved to her own home in February 2021. She continued to receive support from the workers at Ranch Ehrlo. [ 41 ] In 2020, Ranch Ehrlo psychologist Randine Lamontagne prepared a clinical assessment and psychologist report in relation to Ms. Burghardt. Ms. Lamontagne reviewed the results from various tests administered to measure Ms. Burghardt’s functioning at that time.

She also reviewed the reports from Ranch Ehrlo and consulted with the Ranch Ehrlo FTP therapist, Adrienne Martens. [ 42 ] With respect to Ms. Burghardt’s adaptive/life skills functioning, Ms. Lamontagne said she displayed lower levels of adaptive functioning. However, there were notable strengths in certain areas such as home living adaptive skills ( i.e. , food preparation, cleaning, performing chores). [ 43 ] Ms. Lamontagne concluded that Ms. Burghardt displayed significant strength, resilience and motivation. Although Ms. Burghardt had strengths in home living skills, Ms.

Lamontagne said she would require ongoing supports. [ 44 ] Ms. Lamontagne concluded that in terms of her intellectual functioning, Ms. Burghardt fell within the extremely low range. Based on the testing results, she opined that Ms. Burghardt met the criteria for a diagnosis of a moderate intellectual disability. [ 45 ] Into 2021, and after G.’s birth on January 4, 2021, Ms. Burghardt continued to receive in-home support from the Ranch Ehrlo workers up to three times a day. There were times that Ms. Burghardt struggled with remembering to bathe K. and B. so a

schedule was prepared for Ms. Burghardt that set out meal preparation ideas and times for house cleaning and bathing the children. [ 46 ] The numerous and more recent Ranch Ehrlo emails exchanged amongst the workers disclose that Ms. Burghardt achieved significant growth while receiving the FTP supports from Ranch Ehrlo. She was supported in various areas including parenting, coping strategies, social skills, household management and independent living. The workers observed Ms. Burghardt to be keenly motivated and eager to accept the supports offered to her. [ 47 ] Even when Ms.

Burghardt moved into her own home in February 2021, the Ranch Ehrlo workers continued to provide as much support as she needed to live independently and care for her children. Ms. Burghardt remained in the FTP program until March 31, 2021 and, in preparation for the transition out of the program, schedules and safety plans were drawn up to assist her. [ 48 ] According to the Ranch Ehrlo Family Discharge Report, the transition process was aimed at assisting Ms.

Burghardt in establishing routines and connecting with community resources to support her with household management tasks (budgeting, appointments, and non-parenting in-home support). Ms. Burghardt had memory recall deficits and she often required reminders as to the proper food serving sizes for K. and B. as well as breast feeding prompts for baby G. [ 49 ] Ms. Burghardt worked with FTP therapists to prepare a cookbook to ensure she served the correct portions and foods to the children. The FTP workers were concerned about the gap in services after March 31, 2021 when Ms.

Burghardt was scheduled to be discharged from the program. The Ministry of Social Services [MSS] was linked in to assist in the transition and made referrals to the Kids First program. In March 2021, Ms. Burghardt was on the wait list for the Family Intensive Support Program and other programs. [ 50 ] Victoria Head, the author of the Family Discharge Report, concluded that Ms. Burghardt should continue to be supported by Cognitive Disability Services and Community Living Service Delivery to support her. Ms.

Head thought she would require numerous hours of in-home support on a weekly basis given her assessed capabilities. 8. Relationship with Justin Anderson [ 51 ] By all accounts, Ms. Burghardt’s relationship with Mr. Anderson was not a healthy one. They did not live together but he spent time at her home. He was seen as being manipulative with Ms. Burghardt and often threatened her with seeking custody of G. and even the girls. When he was in Ms. Burghardt’s home, he would often speak on Ms. Burghardt’s behalf and appeared to treat K. and B. differently.

For example, he would often feed B. first and withhold food from K. [ 52 ] The Ranch Ehrlo workers worked at assisting Ms. Burghardt in setting boundaries with Mr. Anderson to prevent him from taking advantage of her. 9. Relationship with K.

[ 53 ] As far back as January 2021, Ranch Ehrlo worker Ashely Bradley emailed Ms. Head and reported her observations of Ms. Burghardt’s progress. One of the things she mentioned was the manner in which Ms. Burghardt spoke to K. She said she discussed with Ms. Burghardt more appropriate ways of communicating with K. It did appear to the workers that when Mr. Anderson was around, Ms. Burghardt would resort to the harsher tones with K. Ms. Bradley had to speak to Ms. Burghardt about using physical force with K. when she did not listen. [ 54 ] In preparing for Ms. Burghardt’s transition out of the FTP, Ms.

Head raised concerns with the MSS worker Chanice Thera about the need for continued supports for Ms. Burghardt and her ability to manage her household and parent her children. In a March 19, 2021 email to Ms. Thera, Ms. Head said she and other Ranch Ehrlo workers were disturbed by the manner in which Ms. Burghardt spoke to K. compared with how she interacted with B. In particular, they noticed her speaking harshly to her, blaming her or avoiding her. [ 55 ] Up until about April 2021, both K. and B. were in daycare, giving them an opportunity to enhance their language and social skills. Inexplicably, Ms.

Burghardt withdrew at least K. from daycare and kept her at home. 10. Current Circumstances [ 56 ] The pre-sentence report indicated that Ms. Burghardt was living with her then boyfriend of one year, Kenneth Young, in his home. In his sentencing submissions, Ms. Burghardt’s counsel said she was no longer in a relationship with him. [ 57 ] When she was charged with the current offences, Ms. Burghardt’s two other children were apprehended and remain in the care of the MSS. She has regular visits with the children arranged by the MSS. [ 58 ] Ms.

Burghardt’s mother and stepfather, Marilyn and Carter Smith, filed letters of support for her. They continued to love her and will support her in any way she asks of them. [ 59 ] There were support letters from others who speak highly of Ms. Burghardt and her capacity for love for her children. D. The Positions of the Parties [ 60 ] The respective positions of the parties could not be farther apart. The following is a brief

summary of their positions. 1. The Position of the Crown [ 61 ] The Crown advocates for a sentence of at least ten years’ incarceration for the manslaughter conviction. He argues for a consecutive sentence of at least two years for the unlawful confinement conviction. In doing so, he asserts that the two offences are separate offences, not committed in tandem. [ 62 ] The Crown underscores the importance of denunciation and deterrence considering Ms. Burghardt’s abject failure in her duty to protect her children. He points to the abuse that led up to her killing K. The Crown also spoke of the delay in Ms.

Burghardt seeking medical assistance for K. and emphasized that she chose to call her boyfriend instead so they could concoct a story for the police and doctors. 2. The Position of Ms. Burghardt [ 63 ] Ms. Burghardt, through her counsel, argues that her low level of cognitive functioning significantly reduces her moral culpability. She argues that her circumstances are so markedly different from those of other offenders that denunciation and deterrence play a much lesser role. [ 64 ] Ms. Burghardt argues that her culpability is at the very low end of the scale.

She says because of her low functioning, I should draw some comparators by looking at the Youth Criminal Justice Act , SC 2002, c 1 which provides that the maximum sentence for a youth convicted of manslaughter is three years. Thus, she says, a proportionate sentence would be two years jail for the manslaughter, followed by a three year probation term for the unlawful confinement. E. Analysis [ 65 ] The determination of a proportionate and fit sentence is guided by several principles of sentencing, most of which have been codified in the Criminal Code .

A brief review of the principles is appropriate before applying them to the facts of this case. 1. The Purpose and Objectives of Sentencing [ 66 ]

Section 718 of the Criminal Code states that the purpose of sentencing in all cases is to protect society and, along with other crime prevention initiatives, to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just sanctions. [ 67 ]

Section 718 also sets out the various objectives that will factor into the determination of a “just sanction”, including the following that are particularly relevant here:

(

i) denunciation; (ii) deterrence; (iii) rehabilitation; and (iv) promotion of responsibility and acknowledgment of harm caused. [68] The objective of denunciation is of paramount importance in this case. That is so because it involved anegregious breach of trust by a parent who had a duty to keep her child free from harm. Ms. Burghardt’s breach of trust resulted in thedeath of her child and consequences matter.

Society condemns such conduct and reasonably expects courts will impose sentences thatgive effect to its condemnation. [69] General and specific deterrence also factor prominently in the imposition of a just sanction for crimes againstchildren. In case there was any doubt about the paramountcy of these objectives, we need look no further than s. 718.01 of the CriminalCode which mandates that they be given primary consideration where an offence involves the abuse of a child under 18 years.

Thisclearly signals Parliament’s endorsement of both society’s condemnation of such crimes and the need to deter those entrusted with thecare of children from committing crimes against them. [70] The promotion of responsibility and acknowledgment of harm done figures importantly here as well. Ms.Burghardt’s counsel stated that her recognition of harm done may not be as deep as that of other offenders.

If that is the case, I mustimpose a sentence that will promote her sense of responsibility and her understanding and acknowledgement of the harm she caused toher child and the community at large. [71] Rehabilitation is an important objective particularly for youthful offenders with no criminal history. Thesentence imposed on a first time young adult offender should not be so long that it hinders any prospect or incentive for rehabilitation. [72] In this case, Ms. Burghardt’s counsel submitted that her deficits will not be reduced through rehabilitativeprogramming.

Given her obvious appreciation that the manner in which she was treating K. was wrong and her attempts at covering upher actions that caused her death, I cannot find that Ms. Burghardt is intractable or incapable of learning how to parent. If that were thecase, the objective of public protection, achieved by the separation of the offender from society, may figure more prominently. 2.

The Fundamental Principle of Sentencing [73] The fundamental or overarching principle of sentencing in all cases is governed by s. 718.1 of the CriminalCode that states a sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility in committingit. [74] Unlawful act manslaughter has two requirements: conduct which caused the death of another person; and faultshort of an intention to kill. Despite these common elements, the underlying conduct spans a wide range, from near accident at one endof the spectrum to near murder at the other.

In the sentencing context, a judge must still assess where on the spectrum an offender willsituate. The purpose of this, of course, is to ensure that the sentence imposed corresponds with the degree of moral fault of the offenderfor the harm done. In R v Creighton, (SCC), [1993] 3 SCR 3 (WL), McLachlin J. (as she then was) explained theimperative of assessing moral culpability: [20] ... Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible.

An unintentional killingwhile committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where thecircumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder.

Thepoint is, the sentence can be and is tailored to suit the degree of moral fault of the offender. ... [75] Thus, the degree of responsibility invites an assessment of the fault element as well as the role the offenderplayed in committing the offence. [76] Crimes that expose defenceless children to risk are high on the gravity scale, even when little or no lasting injuryresults from the offender's actions. Where the offender's conduct results in serious harm or death, it will be nearly impossible to articulatethe extent of the gravity of the crime.

This gravity must be reflected in the sentence ultimately imposed. 3. Other Principles of Sentencing [77]

Section 718.2 of the Criminal Code also requires a sentencing judge to consider the principle that a sentenceshould be increased or decreased to account for any aggravating or mitigating factors relating to the offence or the offender. [78] For example, under s. 718.2(a)(ii), (ii.1) and (iii), evidence that in committing the crime the offender abused amember of her own family, the victim was under the age of 18 years, and the offender abused a position of trust or authority in relation tothe victim, are all deemed to be aggravating factors. [79] Under s. 718.2(b), the sentencing judge must consider the parity principle that calls for the imposition of asentence similar to those imposed on like offenders for like crimes committed in like circumstances.

Of course, parity does not demandidenticality and it is important to recognize that the individualized sentencing exercise may not, in some cases, result in even close parity. 4. Gravity of the Offences [80] As I have said, it is difficult to imagine a graver crime than the killing of one’s own child. Ms. Burghardt admitsshe committed manslaughter by means of an unlawful act. Thus, she reasonably foresaw the risk of bodily harm when she threw K.

against the wall not once, but at least three more times. [ 81 ] K. was a toddler, not quite three years old. She had the right to expect her mother would love and nurture her and keep her out of harm’s way. Instead, in the months leading up to K.’s death, her mother became disenchanted with her, but only her. [ 82 ] Ms. Burghardt did not explain her rage in detail. She said she threw K. against the wall because she was not listening. When K. merely “glared” at her, she threw her again and again. [ 83 ] In relation to the unlawful confinement, at first, Ms. Burghardt expressed reservation about Mr.

Anderson’s idea that they start to tape K. up to keep her still and quiet at night and at nap time. Very soon, however, Ms. Burghardt bought into the plan and began taping K. up. Despite using a massive amount of tape over five or six weeks, K. did not sleep any better and she did not lay still. The confinement plan progressed to putting a hood over K.’s head. The photographs tendered into evidence that show a little child whose arms and legs are bound by her side and a pair of shorts pulled over her head to cover her face are haunting. It was cruelty. [ 84 ] Just how Ms.

Burghardt’s decision to hang K. upside down fit into the confinement is difficult to say. It was either part of the confinement or part of the abuse that preceded the killing. Either way, it was part of the pattern of maltreatment. [ 85 ] The killing and the unlawful confinement of K. are separate offences, and I will deal with them in that way. However, together they paint a dismal picture of Ms.

Burghardt’s contempt for K.’s well-being, depicted by the utterly abhorrent confinement methods and violence she inflicted on her when she killed her. [ 86 ] I conclude that the offences could not have been more serious. 5. Degree of Responsibility [ 87 ] As I have said, I must situate Ms. Burghardt properly on the moral culpability scale. To do so, I must consider her role in the commission of the offences as well as any other factors as they affect her degree of blameworthiness. [ 88 ] Firstly, with respect to the manslaughter, Ms. Burghardt was the principal. No one else was involved in the killing.

Her actions alone resulted in K.’s death. [ 89 ] In terms of the unlawful confinement, the idea for the confinement came from Mr. Anderson. When Ms. Burghardt endorsed the confinement, she was keen to follow Mr. Anderson’s guidance. The text messages reveal that while Mr. Anderson tutored her on how to tie K. up, she made the decision to do it, tying her up “good” and using countless rolls of tape to do so. She was quick to alert Mr. Anderson when she was out of tape so he could replenish the supply. [ 90 ] Despite Mr.

Anderson’s active role and his helpful suggestions on how to improve the confinement methods, Ms. Burghardt was the parent with the higher duty to protect and care for K. [ 91 ] Ms. Burghardt presses for a lesser sentence based on her diminished cognitive functioning. To be precise, she says that her deficits in this area greatly mitigate her degree of responsibility. This warrants further exploration. [ 92 ] To be sure, an offender’s serious cognitive limitations or mental illness may, and often does, result in a reduced level of moral culpability.

However, an offender’s moral blameworthiness is not reduced by that reason alone. In other words, moral culpability is not automatically diminished upon a finding that there is some intellectual or mental impairment. That conclusion can only be made after “due consideration of all of the relevant circumstances, including the nature and extent of the impairment and the particulars of the offence”: R v Peyachew , 2016 SKCA 21 at para 44 , 476 Sask R 44. [ 93 ] There must be some established link between the cognitive deficits and the offending conduct.

Only then do those deficits mitigate an offender’s moral culpability: R v Scofield , 2019 BCCA 3 at para 56 , 52 CR (7 th ) 379; R v J.M.O. , 2017 MBCA 59 at paras 72-73 , 353 CCC (3d) 141 [ J.M.O. ]; R v Storey , 2021 ONSC 1760 at paras 47-48 [ Storey ]; R v Cerezo-Brennan , 2023 MBCA 17 at para 25 [ Cerezo-Brennan ]. [ 94 ] The court in Storey endorsed the approach taken by the Court of Appeal in J.M.O. in resolving the issue of whether, and to what extent, an intellectual disability reduces moral culpability.

In J.M.O. , the court said, at para. 73 , that sentencing judges should address the following questions: [73] … 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender's mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender's degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 95 ] I find the above framework instructive. [ 96 ] As to the first question, I find that Ms. Lamontagne’s report is cogent evidence that Ms. Burghardt has cognitive deficits. [ 97 ] Regarding the second question, there is considerable material before me as to Ms. Burghardt’s day to day

functioning. She had the assistance of the FTP workers from Ranch Ehrlo to ensure she could manage a household with three little children including an infant and that she could tend to everyday tasks. Although she made significant strides and was able to live independently, the workers expressed some concerns that she would always need support. [ 98 ] In answering this question, I have considered Ms. Lamontagne’s report she prepared in 2020. I will not repeat her findings except to say she concluded that Ms. Burghardt had a moderate intellectual disability.

Her overall cognitive and adaptive functioning were assessed at the extremely low range. [ 99 ] Having reviewed the entire record, I am satisfied that there is evidence as to the nature and extent of Ms. Burghardt’s cognitive functioning to permit an informed decision as to whether there is a relationship between that functioning and her offending. [ 100 ] This brings me to the third question of whether Ms. Burghardt’s cognitive limitations played a role in the criminal conduct. To put the issue into sharp focus, the question here is to what extent, if any, did her cognitive deficits impact her treatment of K..

Ms. Burghardt need not establish that her cognitive deficits caused her to offend; she only need demonstrate that it contributed to her behaviour: Cerezo-Brennan at para 25 . [ 101 ] One way to answer this question is to consider whether Ms. Burghardt’s intellectual impairment affected her in such a way that she was unaware of the likely consequences of her actions: Storey at para 57 . In saying this, I do not mean that Ms. Burghardt had to have the intention to cause K.’s death; manslaughter does not require this level of mens rea . [ 102 ] There is nothing in the evidence to suggest Ms.

Burghardt did not have an awareness that it was wrong to repeatedly throw her child against the wall. The circumstances here indicate an objective foresight by Ms. Burghardt of, at the very least, risk of bodily harm that is not transient or trifling. [ 103 ] Ms. Burghardt’s counsel said, to some extent, he agreed with the Crown that her conduct was the product of rational decisions. He added, however, that it was the decision-making of a 10 or 11-year-old child. I do not see it that way. [ 104 ] Indeed, the choices Ms. Burghardt made after K. could no longer move belie such a conclusion.

Rather than seeking medical attention, she waited for over an hour and, even then, it was Mr. Anderson who called 9-1-1. The only thing Ms. Burghardt was thinking about in the interim was how to extricate herself from blame. [ 105 ] Ms. Burghardt also understood that if the worker from Kids First saw K.’s bruises, her children might be apprehended. So, she and Mr. Anderson came up with a plan to ensure the worker did not see K. This demonstrates to me Ms. Burghardt held a high degree of foresight into the consequences if someone suspected K. of being abused. [ 106 ] While there was evidence filed as to Ms.

Burghardt’s memory deficits, and she had to be reminded to perform certain tasks, she was parenting and lovingly caring for her two other children even after her discharge from the FTP. Given the stark contrast between her treatment of K. and that of her other two children, it is difficult to see how her cognitive limitations had anything to do with how she abused K..

Put another way, the fact she targeted K. for the abuse and confinement cannot be explained in any way by the existence of her cognitive limitations. [ 107 ] Moreover, there is no evidence that anyone, the MSS or the FTP workers, thought she was utterly incapable of parenting her children and living on her own. [ 108 ] Ms. Burghardt’s initial reluctance to bind and confine her child suggests she knew that this was not the right course of action. Although Ms. Burghardt no longer had the daily in-person support through the FTP, she knew where to turn for assistance and support.

Instead, when the Kids First worker came to call, she chose to secret K. from view. This demonstrates to me that she clearly knew her treatment of K. was wrong. [ 109 ] To me, the confinement was less about Ms. Burghardt’s cognitive deficits and more about her falling prey to Mr. Anderson’s domineering behaviour. One of FTP’s main concerns was Ms. Burghardt’s relationship with Mr. Anderson because he was manipulative and she was often overborne by him.

Although I doubt she would have taped K. up if he had not suggested it, he had nothing to do with her hanging K. upside down or mistreating her in other ways. [ 110 ] I must point out that Mr. Anderson did not live with Ms. Burghardt and her children. That was by her design because she herself had concerns about Mr. Anderson and his manipulative conduct toward her. She relayed those concerns to the FTP workers who discussed with her strategies to help her deal with him. She put up boundaries with Mr.

Anderson in other ways and could have done so to reject his suggestions with respect to the treatment of K. [ 111 ] No doubt Ms. Burghardt was feeling the stresses of caring for three children, all of whom were under the age of three and trying to manage daily tasks living on her own. Ms. Burghardt was frustrated with a toddler who was not listening, a scenario that plays out for most parents of toddlers. It is very apparent that Ms.

Burghardt was overwhelmed by the frustration of parenting on her own after having been given so much daily support through the FTP. [ 112 ] However, as I have said, there is no evidence that Ms. Burghardt’s other two children, one of whom was a vulnerable infant, were suffering by poor parenting on her part whatsoever. They were well cared for and loved. That was not the case for K. [ 113 ] I also noted from the materials that even after her discharge from FTP, Ms.

Burghardt contacted her FTP worker to advise that there was an issue with the childcare subsidy claim form and that it may impact the funding for B.’s daycare. This demonstrates that Ms. Burghardt was capable of tending to parenting matters as they arose. [ 114 ] Circling back to where Ms. Burghardt should situate on the spectrum of moral fault, I find R v Laberge , 1995

ABCA 196 , 165 AR 375 [ Laberge ], to be instructive. In Laberge , the court considered an escalating scale from the perspective of mens rea . The court cautioned, however, that moral fault is not determined by the assessment of mens rea alone; it must be considered together with all factors that may impact moral culpability: Laberge at para 17 . [ 115 ] In Laberge , the court described the mens rea that may exist at opposite ends of the spectrum of moral fault: [8] However, for sentencing purposes, a court is not limited to evaluating moral blameworthiness in terms of an offender's mental state.

Indeed, it would be quite wrong to engage in that kind of a contextual analysis. That is because the offender's level of moral culpability will be influenced by other factors. In the case of unlawful act manslaughter, the most important of these will be what the unlawful act itself involved.

The nature and quality of the unlawful act itself, the method by which it was committed and the manner in which it was committed in terms of the degree of planning and deliberation are all relevant to this inquiry. [9] Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury; those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries.

Only when the offender's proven mental state at the time of commission of the offence is evaluated in the context of the crime itself, in other words in terms of its relative degree of seriousness, is it possible to classify for sentencing purposes the degree of fault inherent in the crime committed. [Emphasis in original] [ 116 ] In considering the particular facts of this case, it is difficult to conceive how anyone, even Ms.

Burghardt, would fail to appreciate that throwing a young toddler against a wall multiple times would not result in life-threatening injuries. [ 117 ] For the reasons I have already discussed, I am not satisfied that her cognitive impairment rendered her unable to appreciate the consequences that would flow from her actions or that what she was doing was wrong. I cannot find her cognitive limitations so affected her ability to parent to the extent that her moral culpability was significantly reduced. [ 118 ] For the above reasons, Ms.

Burghardt’s argument that she ought to be dealt with as if she has the cognitive capacity of a 10 or 11-year-old must fail. The sentences she advocates for would not adequately recognize her blameworthiness. In considering her mens rea , the circumstances of the offences, and all her personal circumstances, I find that Ms. Burghardt’s culpability falls towards the upper end of the spectrum. 6. Aggravating and Mitigating Factors [ 119 ] An offender’s degree of blameworthiness is also informed by any aggravating and mitigating factors. (

i) Aggravating factors [ 120 ] There are many aggravating factors here. The starkest and most obvious aggravating factors are those imposed by statute. [ 121 ] One, Ms. Burghardt failed in her duty to protect her own child. K. had the right to be loved and nurtured. When K. was tied up in her crib, Ms. Burghardt knew she was suffering because she heard her crying out for her and crying for her and Mr. Anderson to “stop it”. But K.’s pleas did not soften Ms.

Burghardt’s resolve to stay the course. [ 122 ] It is reasonable for society to expect that the courts will punish a parent who kills their child more severely than a stranger who kills a child. That is the case even if the non-parent is in a position of trust or authority over that child. The special bond between a parent and child is part of the reason Parliament made it an aggravating factor in s. 718.2 (a)(ii) of the Criminal Code . [ 123 ] Two, Ms.

Burghardt was in the ultimate position of trust and authority towards her child and breached it spectacularly. [ 124 ] Three, K.’s very young age made her vulnerable, without any ability to resist or protect herself.

She was powerless to fend off the attack by her mother that ultimately killed her and powerless to escape the consequences of merely failing to keep still in her crib. [ 125 ] Apart from the statutorily based aggravating factors I referred to above, there are others to consider. [ 126 ] With respect to the unlawful confinement, it is aggravating that it was prolonged over five or six weeks and daily, at nap time and bedtime. It was neither fleeting nor the product of a spur of the moment decision. Ms. Burghardt and Mr.

Anderson were able to adapt to K.’s perceived misdeeds and doubled their binding efforts when the initial ones failed to bring about the desired result. [ 127 ] It is aggravating that K.’s death was not the result of a single, isolated violent act. After Ms. Burghardt threw K. against the wall the first time, she picked her up from the floor and repeatedly threw her against the wall. [ 128 ] It is aggravating that Ms. Burghardt maltreated K. on other occasions prior to her death. For example, there was

evidence that she slapped K.’s hands so hard that they were red, she hung K. upside down as punishment, and she slapped K. when Mr. Anderson told her to. There was evidence that K. had bruises on her body although it is not clear whether Ms. Burghardt or Mr. Anderson caused those bruises. What I can conclude from the evidence is that Ms. Burghardt was abusive towards K. on other occasions and that her actions on the morning of K.’s death were not the only incidents of maltreatment or abuse she inflicted on her child. [ 129 ] I find it is exceedingly aggravating that after Ms.

Burghardt threw K. against the wall and she fell, unable to move, she made no attempt to save her life. She did not call 9-1-1 despite having the means to do so. Instead, she called Mr. Anderson. Even though she failed to reach him after numerous calls, she still did not seek medical assistance for her daughter who, at that time, was barely alive. When Mr. Anderson finally did respond and went to her house, Ms. Burghardt and he spent all their time concocting the story they were going to give the authorities. Well over an hour after Ms. Burghardt inflicted the injuries on K., 9-1-1 was called, but not by her.

At no time during this chain of events did Ms. Burghardt rise to the task of discharging her duty as a parent. [ 130 ] It is also aggravating that Ms. Burghardt tried to mislead the police. She tried to blame the doctors who were doing nothing, she said, about K. always falling. It was not until the police confronted her with the evidence from the text messages that Ms. Burghardt came clean. (ii) Mitigating Factors [ 131 ] An offender’s personal circumstances do not operate to lessen the gravity of his or her offences.

They figure in the analysis of where on the moral culpability scale the offender belongs. [ 132 ] Ms. Burghardt entered guilty pleas to the offences. While she did not enter the guilty pleas at the earliest opportunity, the matter was never set down for trial signalling her intent to accept responsibility. I accept this as a mitigating factor. [ 133 ] Ms. Burghardt is a relatively young adult. She was 26 years old when she committed the offences and has no prior criminal record.

However, while an offender’s youth is properly characterized as a mitigating factor, the more serious and/or violent the offences, the less significant this factor becomes: R v Jimmy , 2023 SKCA 28 at para 17 , 423 CCC (3d) 60; R v Tamoikin , 2020 NSCA 43 at para 43 . In this case, while Ms. Burghardt’s youth and lack of criminal record are mitigating, the effect is not significant. [ 134 ] It is somewhat mitigating that Ms. Burghardt has cognitive deficits, and that she struggled at times to perform all the tasks required of a single parent of three children.

For the reasons I gave earlier, I do not find this factor to be significantly mitigating. [ 135 ] I have read all the materials filed carefully and had an opportunity to listen to Ms. Burghardt when I invited her comments on the last occasion. She was articulate in expressing her remorse and her understanding of the crimes she committed. She acknowledged having blamed others for her crimes for a long time. She said she now realizes it was her responsibility to care for and protect her child. [ 136 ] The circumstances of the offences are such that the objectives of denunciation and deterrence remain paramount. 7.

The Principle of Parity [ 137 ] In applying the principle of parity, one often hears discussions about the appropriate range of sentences for any given offence. Courts of appeal often distill sentencing precedents into a range or a “starting point” that is helpful for sentencing judges in determining a fit sentence. Judges must be cautious, however, in rigidly adhering to ranges or starting points as if they mandate a minimum, or maximum, sentence.

Ranges or starting points are guidelines only, and a sentence that falls outside a range or is lower than a starting point may, nonetheless, be a fit and proportionate sentence (see: R v Friesen , 2020 SCC 9 , [2020] 1 SCR 424). (

i) Manslaughter [ 138 ] Manslaughter is punishable by life imprisonment. However, the Crown and Ms. Burghardt agree that the range for a manslaughter conviction arising from the death of a child is from 4 to 12 years’ incarceration. This range was affirmed by the Court of Appeal in R v Will , 2015 SKCA 11 , 451 Sask R 244 [ Will ]. [ 139 ] There is no shortage of cases where parents have killed their children in Canada.

I consider the following cases to be particularly helpful. [ 140 ] In R v Steer , 2021 SKQB 311 [ Steer ], the then 28-year-old offender, who had no criminal record, lived with her husband, her mother and her 4 children, 2 of whom were 28-day-old twins. She was overwhelmed and threw one of the babies against a wall, killing her. She blamed one of the other children for the baby’s death. The investigation proceeded for many months, culminating in the offender finally confessing to police. The offender entered a guilty plea to manslaughter.

She had been described as having a “global learning disability” but there was no indication that it reduced her moral culpability. She was sentenced to six years’ imprisonment, less remand time. [ 141 ] In Will , the Court of Appeal upheld the seven year sentence imposed for an offender who was convicted after trial of unlawful act manslaughter. He had been babysitting his girlfriend’s 18-month-old child and when the child started crying, the offender smothered him by placing his hand over the baby’s mouth. The child was rendered unconscious and could not be resuscitated.

The offender had no prior criminal record. [ 142 ] In R v Whitehawk , 2010 SKCA 94 , 359 Sask R 105 [ Whitehawk ], the offender, who was convicted of manslaughter, assaulted his infant daughter on different days, resulting in her death. He had a lengthy criminal record including several for violence related offences and was sentenced to seven years' imprisonment. The Court of Appeal increased the sentence to ten years less credit for remand time served.

[143] In R v G.B., 2003 SKCA 44, 232 Sask R 236, the Court of Appeal overturned the five year sentence imposed bythe lower court, finding that a sentence of six and one-half years was appropriate. The 24-year-old offender, who had a criminal recordthat included an assault conviction, plead guilty to aggravated assault on his partner’s 19-month-old son. The offender had hit the childwith sufficient force to cause his head to hit the door. The child was left in a permanent vegetative state. The offender also admitted toprior acts of abuse on the child.

The court noted the offender’s tragic background involving a history of abuse as well as a troubled anddisordered personality. Given the catastrophic and permanent injuries to the child, the court said it was more appropriate to considermanslaughter sentences rather than aggravated assault sentences. [144] In R v Shorting, 2009 SKCA 102, 337 Sask R 134, the 28-year-old First Nation offender inflicted fatal injuries onher 7-month-old daughter. The offender, who plead guilty to manslaughter, had a history of childhood and spousal abuse, addictions toalcohol and drugs and psychological problems.

The Court of Appeal increased the sentence to six years imprisonment. [145] In R v Neuls (1991), (SK CA), 93 Sask R 89 (CA) [Neuls], the Court of Appeal reduced thesentence to one of ten years incarceration for an offender who plead guilty to the manslaughter of his two-year-old stepchild.

In that case,there were prior acts of violence resulting in massive bruising and burns to the child’s feet. [146] Cases from other jurisdictions in Canada are also instructive. [147] In R v Gregoire, 2018 ONCA 880, the offender plead guilty to manslaughter in the death of his 53-day-old son.The offender was sentenced to five years and ten months, after being credited with two years and two months of pre-sentence custody.The Court of Appeal found that a sentence of eight years (before the credit for pre-sentence custody) was a fit sentence. [148] In R v Alexander, 2014 ONCA 22, 315 OAC 49 [Alexander], the 22-year-old offender was convicted after trial ofmanslaughter by failing to provide the necessaries of life in connection with the death of her 19-month-old son.

She had placed him in abathtub of scalding hot water, resulting in burns to 40% of his body. The offender, who had sole charge of her son at the time, failed totake him to a doctor or hospital and left him for two hours while she went shopping. She covered up his injuries so his father would notsee. She eventually called 9-1-1 more than 12 hours after his injury. By that time, he was already dead. The offender had no prior record,was raised in a stable home and had completed grade 12.

The trial judge imposed a sentence of ten years incarceration but, due to amiscalculation in the remand credit, the Court of Appeal reduced the sentence to one of nine years and six months imprisonment. [149] In R v Choy, 2013 ABCA 334, 561 AR 99, the offender, who had no prior criminal record, was convicted aftertrial of manslaughter in the death of her three-year-old foster child. While the Crown argued that on the Laberge assessment, the casewas one of “near murder”, the sentencing judge was not so satisfied and imposed a sentence of six years.

In increasing the sentence toeight years, the Court of Appeal noted that the child’s exposure to harm was prolonged. [150] In R v France, 2017 ONSC 2987 [France], the offender was the live-in boyfriend of M.C. who had a two-year-old child. The child received blunt force trauma to his abdomen. Over an approximate two day period, the child suffered from pain, feverand lethargy and was vomiting. Ultimately, he died from sepsis that could have been treated with timely intervention. However, theoffender and M.C. did not take N. to the hospital until two hours after they found him dead.

The offender was charged with seconddegree murder but just prior to jury selection, he plead guilty to manslaughter by failing to provide the necessaries of life. The judgefound that the offender had assaulted the child before on numerous occasions but could not be satisfied beyond a reasonable doubt that hedelivered the fatal blow.

The offender, who had no prior criminal record, was sentenced to nine years in prison, less credit of six yearsfor pre-sentence custody. [151] In R v Kelly; R v Ackroyd (1989), (NS CA), 227 APR 361 (NSCA), the offender wasconvicted of manslaughter after delivering a karate chop to her 19-month-old baby. After striking the child, she placed him in his crib andtold the baby’s father what she had done. Neither she nor the father sought medical assistance for over two days because they were afraidthey might get into trouble with the authorities.

The sentencing judge rejected her argument that her reduced intelligence and the fact shewas controlled by the father should operate to reduce her sentence.

Her sentence of nine years' imprisonment was upheld by the Court ofAppeal. (ii) Unlawful Confinement [152] There are few cases in which offenders are convicted solely of the unlawful confinement of a child in their care.In many of the cases, the circumstances were much more egregious, involving long-term confinement, failing to provide the necessariesof life and other abuse. [153] In an unreported decision, the offender in R v A.S. (22 October 2020) Battleford, CRM-BF-00093-2018 (SaskKB) [A.S.], was convicted after trial of five counts of unlawful confinement in relation to her five children.

The children were locked intheir bedrooms regularly and could not get out because the doorknobs had been removed. They were locked in during the night and notallowed out until the morning when it was school time, later if there was no school. If the children had to use the toilet, they went on thefloor. The offender was sentenced to 15 months jail and 12 months probation. [154] In R v Cook, 2013 BCSC 495, the 54-year-old offender was sentenced to 3 years in jail for unlawful confinementand 2 years consecutive for offering an indignity to a human body.

He and his partner had discovered that his partner’s 13-year-old son(A.) was sexually touching her younger son, so they decided to tie up A. and secure him in the bedroom for two days. When theoffender’s partner found A. in distress, they attempted CPR but was unable to revive him. They eventually buried his body in a shallowgrave in a remote location. The offender had a lengthy criminal record. [155] In R v B.W., 2006 NLCA 43, 211 CCC (3d) 85, two children were left to sleep on the floor in a room withoutheat.

Almost every night for a two or three month period, their bodies were taped so they could not move, and in the morning, the tapewas painfully ripped off. The Court of Appeal held that a term of imprisonment of three years would have been appropriate on each ofthe charges of unlawful confinement, although there were numerous other convictions.

8. Conclusion [ 156 ] I find that the circumstances in Steer and Will are more closely aligned with those in this case. [ 157 ] In this case, however, the acts surrounding K.’s death were more serious than those in Steer in that it was not a singular act of violence.

And there was evidence that K. had been mistreated in the weeks leading up to her death. [ 158 ] I find that the circumstances of the offences and those of the offenders in other cases such as Alexander , France , Neuls and Whitehawk to be more aggravating than those in this case. [ 159 ] In assessing the gravity of the offences, and the degree of responsibility as informed in part by the aggravating and mitigating factors, I impose the following sentences. [ 160 ] For the charge of manslaughter, I impose a sentence of seven years in prison. Ms.

Burghardt will receive credit of 1.5 days for each of the 126 days spent on remand in pre-sentence custody. Thus, the credit she will receive is 189 days. I fix 7 years at 2,555 days and reduce it by the enhanced remand credit of 189 days. The result is that, going forward, she will have 2,366 days left to serve. [ 161 ] For the charge of unlawful confinement, I find that the case of A.S. to be most similar although the period of confinement here was of a shorter duration. I impose a sentence of 365 days in prison, to be served consecutively to the sentence imposed for the manslaughter. [ 162 ] Ms.

Burghardt’s counsel suggested that I recommend she serve her sentence, or part of her sentence, in a minimum security institution. This is an appropriate suggestion having regard to the circumstances of the offences and Ms. Burghardt's personal circumstances. I formally make such request of Corrections Canada and recommend that Ms. Burghardt serve her sentence, or part of it, at the Maple Creek Healing Lodge. [ 163 ] There will be an order under s. 487.051(1) (

a) of the Criminal Code requiring you to provide samples of bodily substances for the purpose of forensic DNA analysis. The order will be in Form 5.03. J. B.L. KLATT