) ) Samuel Levkov v. HER MAJESTY THE QUEEN, 2022 MBKB 232

Date: December 8, 2022 Docket: CR 20-05-00512 Indexed as: R. v. A.L. and J.C. Cited as: 2022 MBKB 232 (Dauphin Centre) COURT OF QUEEN’S BENCH OF MANITOBA BETWEEN: ) ) Samuel Levkov and HER MAJESTY THE QUEEN , v. ) ) ) Daniel P. Chaput for the Crown ) A.L. and J.C., ) ) Matthew T. Gould and Zachary B. Kinahan Accused. ) ) ) for A.L. Alex Steigerwald for J.C. ) ) Judgment Delivered : ) December 8, 2022 ZINCHUK, J. Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code no one may publish, broadcast or transmit in any way any information that could identify the victim(

s) or witness(es). I. INTRODUCTION [ 1 ] A.L. has been convicted of the following offences under the Criminal Code , R.S.C., 1985, c. C-46 (the “ Code ”): • two counts of aggravated assault (s. 268) • two counts of criminal negligence cause bodily harm (s. 221) • two counts of failure to provide necessaries of life (s. 215) J.C. has been convicted of two counts of criminal negligence cause bodily harm and two counts of failure to provide necessaries of life. [ 2 ] All convictions are in relation to the parties’ children: twins B.C. and D.C.

The twins were apprehended by Child and Family Services (“CFS”) on July 29, 2019. At that time, they were just under one year old. [ 3 ] The exhibits at the sentencing hearing were as follows: • S1 Pre-Sentence Report (“PSR”) of A.L.

• S2 PSR of J.C. • S3 Booklet of Victim and Community Impact Statements • S4 Joint Book of Sentencing Materials, Tabs 1 - 13 containing character references and certificates of completion relative to A.L. • S5 Book of Supplementary Program Reports and correspondence relative to A.L. • S6 Book of Sentencing Materials, including character references and correspondence relative to J.C. • S7 Handwritten letter addressed to the Court from J.C. II. CIRCUMSTANCES OF THE OFFENCES [ 4 ] On July 29, 2019, two CFS workers attended the family’s home following an after hours intake regarding the conditions of the twins.

On viewing the twins, the workers determined that their condition required immediate medical attention. At the direction of the workers, A.L. and J.C. brought the twins to the ER at the Swan River Valley Hospital. Staff were shocked by the appearance of the twins. Photographs of the twins taken at the time can best be described as haunting. [ 5 ] The children were initially assessed by Dr. Adrian Fung, the CMO of the hospital. The decision was made to transport them to Dauphin by ambulance where Life Flight would be waiting to take them to Health Sciences Centre (“HSC”) in Winnipeg.

Once in Winnipeg, the twins were further assessed and medical interventions occurred. Ultimately, the Child Protection Centre (“CPC”) was involved and provided an opinion on maltreatment. [ 6 ] The following is a

summary of the condition of each of the twins: (

a) Condition of B.C. • weighed 6.28 kg (13.84 pounds) fully clothed; this was below the 3 rd percentile of the growth chart and was a significant departure from October 2018 when released from Brandon Hospital after birth when B.C had been around the 50th percentile; • appeared sunken and malnourished with no body fat, visible ribs and tenting/sagging of the skin; • bruises and scratches on his face; • light patches of skin on the head that appeared to be healing burns; • erosion of the skin on one of the thumbs from B.C. chewing on same; • visible swelling of left leg and right arm; • Dr.

Jens Wrogemann , Pediatric Radiology G eneralist , determined that there were 23 separate fractures to the ribs; right shoulder; arms and legs; pelvis; right hand and skull; • Dr.

Megan Cooney of CPC determined that 16 of the 23 fractures were “unequivocal”, meaning ones that she, as a general pediatrician, could easily see on x-rays and which were consistently seen over multiple radiographs and CT scans; • the skull fracture was “complex” in that it crossed suture lines; as it healed it became a growing fracture which manifested in a palpable soft spot on the skull as well as subdural fluid collection; and • development was significantly delayed and included severe head lag; an inability to sit unsupported; not using hands; had no words and was not babbling as would be expected for a child of that age. (

b) Condition of D.C. • weighed 5.9 kg (13.0 pounds) fully clothed which was significantly below the bottom of the growth curve; • appeared sunken and malnourished with no body fat, visible ribs and tenting/sagging of the skin; • there was a pressure sore on the upper part of the right buttock; • lower left leg was grossly swollen from an untreated fracture that was angulated because it was healing in the wrong position; • obvious swelling on right leg along the shin;

• swelling of the left humerus; • head circumference was 50 cm which is the 99.9th percentile; • Dr. Jens Wrogemann determined that there were 20 separate fractures including to the right shoulder; ribs; arms, legs; hands and skull; Dr.

Cooney determined that 12 of the 20 fractures were unequivocal; • there were two skull fractures, one chronic and the other acute; • the skull fractures resulted in subdural fluid collection and D.C. was determined to be in an extreme state of neurological decline as she presented with decreased level of consciousness and very low heart rate; • due to the increased pressure in the skull there was concern that if left untreated the result would be herniation of the brain into the spine, which could lead to death; • underwent emergency surgery which involved being intubated and ventilated so that bilateral burr holes could be made into the skull to evacuate the fluid collections; and • development was significantly delayed; could not keep head up or sit independently; could not roll over; was not using hands, making any words or babbling. [ 7 ] Although the twins were born approximately two months prematurely, each grew as expected while in hospital and were discharged at what was considered a healthy weight.

Between October 2018 and July 29, 2019, there is no evidence that either child saw a health care provider. The evidence is that greatest decline in the children’s condition occurred between April 1 and July 29 of 2019. [ 8 ] At trial, three of A.L.’s children testified: R.P. (age 18); K.P. (age 11) and K.P. (age 10). Also testifying were G.P. and G.N., each of whom were aunts to A.L.’s children. The evidence was clear that A.L. treated the twins differently from her other children. She did not provide love and affection to the twins and acknowledged that she did not feel the same about them as her other children.

She verbally expressed that she “hated the twins”; “that they were the worst babies ever”; and that “she wished she never had them”. She referred to them as “little piglets” and specifically to D.C. as “a little bitch”.

A.L. had little to no tolerance for the twins and she was observed: • leaving them alone outside in their Jolly Jumpers for hours at a time while she slept or watched TV; • yelling at them to shut up when they cried; • putting socks in their mouths to stop them from crying; • hitting them very hard in the face and arms; • picking them up by one arm to carry them from place to place, resulting in them screaming and crying loudly; • grabbing them tightly around the ribs and belly and carrying them like a football; and • roughly putting their sleepers on after changing them. [ 9 ] A.L. also left the residence without notice; sometimes only for a few hours, other times for a day and on at least one occasion for three days.

During her absences, the twins were left in the care of A.L.’s two children, K.P. and K.P., who were only eight and seven years of age at the time. [ 10 ] In contrast, J.C. was observed as gentle, kind and loving during his interactions with the twins. However, he had been present on some occasions when A.L. had carried the twins by one arm and hit them, but said and did nothing. He was aware that the twins needed medical attention as he had told A.L. that they should see a doctor.

Several people testified at trial that when they saw the twins on July 28 and 29, 2019, their need for medical attention was immediately obvious. Yet, inexplicably, he took no steps to ensure they received medical care. J.C. instead chose to spend his time working upwards of 80 hours a week and to leave the care of the twins to two small children. III. CIRCUMSTANCES OF THE OFFENDERS (

a) A.L.

[ 11 ] A.L. is currently 40 years of age and was 37 at the time of the offences. She has been in a relationship with J.C. since September 2016 and they married July 22, 2020. They have four children together: A.C. (currently age five); the twins (currently age four) and R.C. (currently age three). The three children referred to earlier in this decision, R.P., K.P. and K.P., are from a previous relationship.

A.L. had been with their father for about 20 years and the relationship had been physically and mentally abusive. [ 12 ] Although abandoned at birth, A.L. was raised by her adoptive single mother in a positive environment with supportive extended family. She disclosed to the PSR writer that she was molested by a cousin between ages four and six. Despite disclosing same at the time, the family continued to allow the cousin access to her. [ 13 ] A.L. quit school in grade 10 but ultimately obtained a Mature Student Diploma and was generally gainfully employed until the birth of the twins.

A.L. has consistently used illegal drugs throughout her adult life. She began with marijuana in grade seven and was introduced to cocaine in grade nine. Her drug of choice was crack and/or cocaine. By her own admission, her drug use became particularly heavy in March 2019. She acknowledges having stolen approximately $80,000.00 from J.C. during their relationship and hiding the true extent of her drug use from him. [ 14 ] A.L. has a dated and unrelated criminal record, which is neither a mitigating nor an aggravating factor in this case.

A LS/CMI Risk Assessment put her at a high risk to re-offend. [ 15 ] A.L. was in custody between October 25, 2019 and May 6, 2020 at which time she was released to Elizabeth Fry Society where she completed a substantial number of mandatory programs. She has completed the residential treatment program at Willard Monson House. Following conviction, she went back into custody and since May 6, 2022 has been a resident of The Walking Bear Therapeutic Community at WCC, which is a program intensive unit with high expectations and limited down time.

She has participated in a significant number of programs primarily addressing addictions and past trauma. Numerous letters of support were provided, including from program directors and workers, a family physician, therapist, and program participants, confirming A.L.’s motivation, determination and commitment to recovery. [ 16 ] A.L’s mother provided a letter of support wherein she indicated that A.L. had suffered from postpartum depression.

However, there is no medical evidence to support such a diagnosis. [ 17 ] A.L. addressed the court in a lengthy and emotional statement which addressed her struggle with addiction and how it affected her actions. She acknowledged that the twins were found in “an appalling condition because of me”. She recognized that when they needed protection the most, “I was the one hurting them and the one they needed protection from”. She expressed that she has tremendous guilt and shame to overcome and she acknowledged that her children will have a great deal to conquer. (

b) J.C. [ 18 ] J.C. is presently 57 years of age and was 54 at time of the offences. He has three adult children from previous relationships ages 29, 26 and 21 and has a good relationship with the two oldest. He has a strong relationship with his two nephews and his mother-in-law. [ 19 ] J.C. grew up on the family farm and continued farming into adulthood. He also drove a truck hauling logs. By all accounts, he was a hard worker.

A letter of support filed on his behalf attested to his honesty and work ethic and the writer of same indicated they were sad to learn of his situation. [ 20 ] J.C. told the PSR writer that he felt his wife was a really good mother who always ensured that the children had top quality clothing and food. He acknowledged that A.L. would “wander off and do her thing”, referring to her drug use.

His own father had been an alcoholic and he told the PSR writer that he did not push A.L. to address her substance abuse because he knew that a person would not change until they decide to do so. [ 21 ] J.C. was not in custody following arrest. He undertook no personal counselling or programming other than marriage counselling with A.L. of which there were 32 sessions.

He indicated to the PSR writer that he had no addiction issues though it was the opinion of the writer that there was “a dissonance between the subject’s reported use of alcohol and drugs compared to the views of others interviewed for this report”. [ 22 ] J.C. attempted suicide on September 5, 2021 shortly before the commencement of trial. A psychiatric assessment indicated that he suffered major depressive disorder. Despite this, there is no indication that he has since undergone any form of counselling other than the marriage counselling.

Further, there had been some evidence at trial that A.L. was a domineering partner and that she controlled J.C. However, there is no medical evidence addressing J.C.’s state of mind relative to same. [ 23 ] J.C. also has a minimal criminal record which is dated and unrelated. A LS/CMI Risk Assessment puts him at medium risk to re- offend. [ 24 ] In a handwritten statement to the Court, J.C. wrote that he is “so sorry to both of them for not helping them when they needed me” and to “everyone else who has been affected”. He is “very grateful that they are well taken care of”. IV.

VICTIM IMPACT [ 25 ] The impact of these offences has been significant. There is not only the heartbreaking impact on the twins themselves, but also a ripple effect throughout the family and the community.

(

a) Impact on the Twins [ 26 ] Dr. Cooney described the totality of the circumstances relating to the twins as “medically devastating”. Specifically, she testified at trial that “it is rare to see children present with this degree of malnourishment; rare to see children present with half as many fractures as these twins and rare to see children present with this degree of head injury and in this case all three were happening in the same children.” [ 27 ] There was significant evidence before me of what “medically devastating” meant for the twins from a practical point of view.

Counsel for A.L. argued that the visceral descriptions provided to the Court should not be conflated with severity. I disagree. In this case, such details provide a meaningful description of the impact of the offences on the victims. Clinical statements from medical professionals detailing injuries or conditions are one thing; details of day-to-day life from caregivers are quite another.

What did the number of fractures and level of malnourishment truly mean for these children? [ 28 ] To begin with, when the children were presented at HSC both were given IV morphine because they were in pain every time they were touched or moved. Dr. Wrogemann testified that many, though not all, of the fractures which could be dated occurred in the last three to six weeks prior to July 29, 2019. R.P. testified that she saw the twins sometime in June 2019 and noted that B.C.’s arm and D.C.’s leg were swollen and rock hard and that they would “freak out” when attempts were made to try to move them.

In can be inferred that the twins, due to healing fractures, would have been in pain during every diaper change and every feeding over an extended period of time. [ 29 ] Dr. Cooney testified that the twins had not reached expected milestones because they could not do so without significant pain; attempts to push up or do anything which required weight bearing were avoided because of the pain same would cause.

Accordingly, the twins remained non-ambulatory and their development suffered as a result. [ 30 ] Upon admission to HSC, the children’s feeding had to be closely monitored due to the risk of re-feeding syndrome; a shifting of electrolytes that could be dangerous. In the case of B.C. , this monitoring required blood work twice a day for several days. D.C. was also monitored closely as she was more undernourished than B.C. and required more support.

At the time of discharge from HSC, almost four weeks after being admitted on July 29, 2019, D.C. was still being fed through a feeding tube. [ 31 ] The presence of the pressure sore on D.C. ’s upper buttock speaks to the level of neglect. Dr. Cooney testified that she did not think she had ever seen one in a developmentally normal child because it requires both an absence of fat and immobility. A pressure sore is not seen in children because they are moved and held during several points throughout the day. To Dr.

Cooney, the presence of the sore indicated that D.C. was spending a lot of time on her back. [ 32 ] At the outset of submissions, I was advised counsel agreed that, at the time of apprehension, D.C. presented with severe traumatic brain injury secondary to inflicted trauma and that same has adversely impacted her motor skills and cognitive and language development to date and will continue to do so in the future.

Further, insofar as the future impact of the severe traumatic brain injury is only ascertainable through future assessment, the full impact is not yet known but may include cognitive, intellectual deficits, long-term mental health issues, language delay and epilepsy. [ 33 ] Dr. L. K-B and her husband M.B became foster parents to the twins and they were released into her care on or about August 21, 2019. She stated that three years later, they were “still picking up the pieces of their broken babyhood”.

Her trial testimony and victim impact statement detailed the following: • during the six hour drive from Winnipeg to Swan River the twins did not make a sound and showed a tremendous capacity for boredom; • their fractures had not yet healed and diaper changes, bathing and moving them was incredibly difficult as they made piercing cries; • she continually discovered things that terrified them: Jolly Jumpers, swings, loud voices and the dark; • with respect to B.C.: ▪ he has developed rapidly and there was huge growth in the four months after he was brought home; ▪ he continues to have low vision in his right eye and has to have a patch on his left eye six hours a day; ▪ he has a fracture line in his head that can still be felt and he is treated for chronic headaches; • with respect to D.C. : ▪ she was not yet sucking from a bottle when she left HSC and had to be tube fed five times a day - this involved inserting a nasal gastric tube into an unwilling, crying infant which felt like she was torturing her and betraying her trust; ▪ once able to eat, all of her food had to weighed prior to feeding; ▪ she had several episodes of night terrors which involved screaming uncontrollably, sometimes for hours;

▪ her development has been vastly different from B.C. and it has taken much longer for her to begin to speak; ▪ she has undergone therapy to help her open her right hand and pull the thumb out so she is not constantly clenching; ▪ she has to concentrate to use her right hand, form her words or hold a cup; ▪ she uses braces so she can walk properly; ▪ the right side of her body will never work properly; and • both twins continue to be emotionally fragile and she described their need for affection as “insatiable”; as an example, B.C. needs a hug after any separation even if it is as simple as having gone into another room. (

b) Impact on Family [ 34 ] The family has been torn apart as a result of these offences. A.L. and J.C. had three other children in addition to the twins living with them at the time. A.L. was also pregnant with the couple’s fourth child who was born in September 2019. [ 35 ] Dr. L. K-B and her husband are also foster parents to the youngest child, R.C. In a very short period of time, their family expanded from two of their own children to five very young children of which two had special needs. It has been a difficult journey.

Among other things, the twins require ongoing attendances to specialists located in Winnipeg, which makes for a 12 hour round trip by vehicle. Dr. L. K-B has been unable to work as a physician at capacity due to her new family commitments, which affects the Swan River community. Her parents moved from their lifelong home in Saskatchewan to reside near their daughter so they could provide assistance and support. Her mother, M.K., notes that she has been “humbled by how the twins work for the small gains that are taken for granted in other children”. [ 36 ] Dr. L.

K-B. describes the emotional impact as “complicated” and “almost impossible to describe.” Though the last few years have been the most difficult of her life, the addition of the twins and their younger sibling has also made her family’s life rich and joyful. Nonetheless, she says there is a “thread of tragedy through every joy”.

Through every gain made by the twins there is “heartache that didn’t have to happen; bones that didn’t have to break; brains that didn’t have to bleed and spirits that didn’t have to be broken”. [ 37 ] The three other children, K.P., K.P., and A.C., live with their aunt and uncle, G.N. and V.N. in Winnipeg. This arrangement was possible because G.N. took early retirement and moved from Thompson to Winnipeg where there are more services available to assist the children. At a time when she and her husband should be enjoying retirement, they are unexpectedly raising three young children.

These children have not been untouched by what transpired in their home. They are dealing with trauma, anxiety and abandonment issues for which they are all seeing professionals. K.P who was eight years old at the time of these offences, testified at trial about having to look after the twins when A.L. would go missing and J.C. was sleeping or outside. He testified that he knew he had to care of the twins “because nobody else did” and he “understood it was the right thing to do”.

No child should ever be in that position. [ 38 ] While all of the children are now residing in safe and loving homes, the reality is that they will not grow up together as siblings in a single-family unit. (

c) Impact on Community [ 39 ] Dr. Fung explained how emotionally difficult the case was for himself and the Swan River medical community. He described the case as, “one of those presentations you hear about in medical school but hope you never have to see”. All those involved with their care have repeatedly expressed how no other patient encounter has affected them in the way that this one did, in both severity and magnitude; this includes staff who worked in the ER department for more than 10 years.

The imagery of the twins from the day they came to the hospital has stayed with the physicians, nurses and health care aids involved. An important element in their healing is the fact that the twins have remained in the community and there has been an ability for staff to watch their progress. [ 40 ] Cst. Kolby Anderson, who was called to the hospital on July 29, 2019 to begin the investigation which ultimately led to the arrest of A.L. and J.C., also provided a statement.

He spoke of the emotional well-being of any community member who was “unfortunate enough to be involved in this file” and specifically, anyone who saw the twins in person or the pictures taken of them. He says that they “will never be able to un-see the broken, near death images of two babies”.

He also noted that the impact would be felt forever as the children will grow up in the small community where the offences occurred. [ 41 ] Finally, the PSR writer spoke to two friends/neighbours of J.C. who both expressed that the community appeared split in terms of their attitude towards the situation; half the community rallying around J.C. and supporting him and the other half judging him as guilty. V. POSITIONS OF CROWN AND DEFENCE

[42] Counsel agreed that any sentence imposed should be consecutive as against each child. After I have determined the total of theconsecutive sentences, I must take a last look to ensure that the total sentence is not unduly long or harsh. To make this determination, Imust consider the gravity of the offences, the offenders’ moral culpability, the harm done to the victims, that the effect of the sentence isnot “crushing,” and that it be in keeping with the offender’s record and future prospects (see R. v. Arbuthnot, 2009 MBCA 106, para.18). [43] Counsel also agreed that the convictions for failure to provide necessaries of life should be stayed pursuant to Kienapple v. R., (SCC). (

a) Crown Position [44] With respect to A.L., the Crown seeks the following sentence: (i) 14 years for the aggravated assault on D.C. and 10 years concurrent for criminal negligence cause bodily harm; (ii) 12 years consecutive for the aggravated assault on B.C. and 10 years concurrent for criminal negligence cause bodily harm. The Crown suggests that the total sentence of 26 years be reduced to 22 years after totality considerations. [45] With respect to J.C., the Crown seeks a sentence of seven years for criminal negligence cause bodily harm relative to D.C. and sixyears consecutive relative to B.C.

Following a last look, the Crown argues that the total sentence of 13 years be reduced to 12 years. (

b) Position of A.L. [46] Defence argues that for the more serious charge, aggravated assault, a fit sentence is five years in respect of D.C. and four yearsconsecutive in respect of B.C. It is suggested that the total sentence of nine years be reduced to seven years after totality considerations. (

c) Position of J.C. [47] Defence argues that an appropriate sentence is 18 months for each child served consecutively with the resulting total sentence ofthree years being reduced to two years after a last look, followed by three years probation. VI. SENTENCING PRINCIPLES [48] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just,peaceful and safe society through sanctions that have one or more of the objectives enumerated in s. 718 of the Code.

These includedenunciation of unlawful conduct and harm done to victims; deterrence of the offender and others from committing offences; separatingoffenders from society where necessary; assisting in rehabilitation; providing reparations; and promoting a sense of responsibility inoffenders and acknowledging the harm done to victims or to the community. [49] Further, the Code requires a sentencing judge to consider a number of principles which include, but are not limited to, thefollowing: • when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct (s. 718.01); • a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1); • a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender (s. 718.2(a)); • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s.718.2(b)); and

• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2 (c)). VII. AGGRAVATING FACTORS [ 50 ] There are several aggravating factors applicable to both offenders including those which are enumerated in the Code : • the abuse involved members of their family (s. 718.2(a)(ii)); • they abused a person under the age of eighteen years (s. 718.2(ii.1). In this case the twins were between nine and 11 months old during the known period of abuse.

The power imbalance between children and adults is even more pronounced for younger children, whose “ dependency is usually total” and who are “ often helpless without the protection and care of their parents” (see R. v. Friesen , 2020 SCC 9 , para. 134 citing R. v. Magoon , 2018 SCC 14 , [2018] 1 S.C.R. 309, at para. 66 ); • they abused a position of trust in relation to the victims (s. 718.2(iii)). There is no greater breach of trust than the one between parent and child.

Children are most vulnerable and at risk at home and among those they trust (see Friesen , para. 66 citing Sharpe , at para. 215, per L ’ Heureux-Dubé, Gonthier and Bastarache JJ.; K.R.J ., at para. 153, per Brown J.); • the offences had a significant impact on the victims (s. 718.2 (iii.1)); • the offences involved two children; • the offences occurred in the twins’ own home.

A parent ’ s home is a place where the child should feel safe and secure under the care and guardianship of the parent (see Friesen , para 178 ); • the offences did not comprise a single isolated incident representing a loss of control but occurred over a period of time during which time the twins would have expressed pain and appeared malnourished and the need for medical attention would have been obvious; • the age of the offenders and the fact that they each had raised children prior to the twins.

This was not a situation of young, inexperienced parents but of two mature adults who knew what was required of them; • the abuse and neglect of the twins was witnessed by three other young children who also resided in the home. [ 51 ] The following are the aggravating factors which apply specifically to A.L.: • she refused to take the twins for medical care despite being encouraged to do so by both J.C. and R.P.; • the opinion of Dr.

Cooney that all of the fractures would have required a high degree force; • my finding at trial that she had an animus towards the twins; • she deliberately lied to minimize the condition of the twins and attempted to deflect responsibility for their condition from herself: ▪ she assured both J.C. and R.P. that a nurse practitioner had seen the twins and that they were fine, they were simply in “regression” because they were born premature – this was a fabrication; ▪ in the face of the twins’ hard and swollen limbs she told J.C. and R.P. that they were bee stings and did not require medical attention; ▪ she told the CFS workers that she would rather take the twins to Brandon than Swan River because that was where she had been taking them when in fact neither twin had been to Brandon since early October 2018; ▪ she told Dr.

Fung at the ER in Swan River that she had been dealing with a specialist in Brandon and that the twins had an appointment in a few days, which they did not; ▪ she also told Dr. Fung that the twins had an older brother who was around two years old at the time and that he was quite rough with them; and • she is assessed a high risk to re-offend. [ 52 ] With respect to J.C., the following aggravating factors are relevant: • he knew the twins required medical attention; The evidence at trial was that he had been telling A.L. that they needed to go to the hospital but that she wouldn’t let him.

He had numerous opportunities when A.L. was away to take the twins for medical attention but failed to do so; and • he was prepared to leave the care of the twins to A.L.’s eight and seven year old sons. In fact, the day prior to apprehension, he had

said to G.P. that, “these little fuckers aren’t watching them”. VIII. MITIGATING FACTORS [53] The mitigating factors are few. To their credit, both have been compliant with their bail conditions. For J.C., this represents aperiod of approximately three and a half years. While the period is less for A.L. given her initial period of remand, she has also beencompliant, including a period of just over a year while wearing a GPS Ankle Bracelet. [54] In the case of A.L., defence counsel argues that the significant amount of programming which she has taken must be considered.

The programming was done in the context of Elizabeth Fry Society and The Walking Bear Therapeutic Community. It is argued that thesentence being sought by the Crown fails to take into account A.L.’s efforts or the letters of support filed on her behalf. [55] The Crown argues that despite all the programming, A.L. lacks empathy and insight into her offending behaviour. The Crownrefers to the PSR where the writer recounted two specific interviews which questioned A.L.’s motivation for programming. [56] With respect to J.C., defence counsel argues that he has expressed true, genuine remorse.

Further, he has never been in custodybefore and the PSR writer believed him to be a suitable candidate for community supervision. The Crown argues the letter to the Courtmarked as Exhibit S7 is the first acknowledgement and show of remorse which J.C. has shown. Further, the fact that he and A.L.engaged in marriage counselling is irrelevant to their offending behaviour. [57] In considering remorse, I note the following from Friesen at paragraph 165: Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78).

However, remorse gains added significance when it is paired withinsight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude orimposed some self-discipline which significantly reduces the likelihood of further offending” (R. v. Anderson (1992), (BC CA), 74 C.C.C. (3d) 523 (B.C..C.A.), at p. 536 (emphasis in original)). [58] Both A.L. and J.C. have expressed remorse. However, at this time I find that both lack insight into their offending conduct. A.L.has at least begun the process.

While her programming to date has focused on addiction and trauma, same was necessary in thecircumstances. She acknowledged to the Court that she has tremendous guilt and shame to overcome. This is but a start to gaining trueinsight into what she has done and the impact of same.

While in some ways I find that J.C. has a greater understanding of the impact ofhis actions than A.L., he is nowhere near understanding how and why he acted, or failed to act, as he did. [59] While each offender is entitled to some credit either for the programming completed thus far, expression of remorse orunderstanding of the impact of their offending behaviour, given the severity of the offences and the need for deterrence anddenunciation, their respective moral blameworthiness is only minimally reduced. IX. CASELAW ANALYSIS [60] I was provided with substantial caselaw by both Crown and defence.

It is no surprise that no case is directly on point with the factsof the present case. [61] The Crown is seeking substantial sentences for both offenders. The sentences sought for A.L. for aggravated assault in respectD.C. and criminal negligence relative to both twins are the maximum permitted under the Code. [62] A maximum penalty of any kind will by its very nature be imposed only rarely and is only appropriate if the offence is of sufficientgravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis (see R. v.

Cheddesingh, 2004 SCC 16, para.1). The Crown argues the sentences sought are warranted in the circumstancesof this case. [63] The Crown provided two cases to support its position. In R. v. Williams, 2020 MBCA 72, the accused was convicted ofmanslaughter by the unlawful act of failing to provide the necessaries of life to his 21-month-old daughter. The Court upheld a sentenceof eight years. The child died from fatal injuries inflicted by the mother when the accused was not present.

There was evidence that thechild had been repeatedly beaten by the mother in the year leading to her death as well as gross malnourishment. The number of physicalinjuries were severe and comparably to the present case. The accused and the mother had agreed they would not seek medical attentionfor their daughter for fear of losing her to child welfare authorities. The sentencing judge had found that the accused’s moralblameworthiness was high based on multiple opportunities to take action to protect the child. [64] R. v.

Bottineau, 2011 ONCA 194 involved the second degree murder conviction of common law spouses for starving their fiveyear old grandson as well as forcible confinement of his six year old sister. Over a period of years both children were abused and treatedlike “unloved and unwanted animals”. Two other grandchildren also resided with the couple and were treated vastly differently, livingrelatively normal, healthy lives. Nonetheless, as in this case, these other two children were witness to the appalling treatment of the fiveand six year old.

Both appellants lied extensively to medical and police investigators in an attempt to cover up their grandson’slongstanding abuse and suffering. The parole eligibility for the wife was 22 years and for the husband was 20 years. In addition, there

was a concurrent sentence of eight years for the forcible confinement. [65] The Crown recognizes that the charges in these two cases are not the same as the present case. It is argued that although this casedoes not involve the death of a child, we are dealing with a severe outcome and in the case of D.C., a “near death”.

Further, the casesrelied upon have sufficiently similar aggravating features which assist the Court in assessing moral blameworthiness in the context of thespecific charges of this case. [66] Both defence counsel argue that the sentences sought are excessive and are not proportionate because they reflect situationsinvolving the death of a child. I do not agree that the sentences sought are at a level reserved only for cases involving the death of achild. They are sought with reference to the maximum sentences which are created by statute.

Clearly, Parliament envisioned situationswhere such lengthy sentences would be appropriate. Further, it has been recognized by the Supreme Court that maximum sentencesshould not be reserved for the abstract case of the worst crime committed in the worst circumstance but should be imposed whenever thecircumstances warrant it (see Friesen, para 114 citing R. v.

L.M., 2008 SCC 31). [67] In addition, defence argue that the Crown is attempting to “up” the sentences based on Friesen which is inappropriate as Friesenapplies specifically to sexual offences involving children and not to cases involving abuse of children generally. While I have referred toFriesen several times in these reasons, I have done so primarily to reflect commentary by the Supreme Court relative to generalstatements of the power imbalance between children and adults and the vulnerability of children in their own home.

For the purposes ofthis case, it is not necessary for me to make a general statement about whether sentences for all forms of abuse or violence againstchildren should increase from what they have been in the past. [68] The joint Sentencing Materials filed by defence as Exhibit S4 provides the following cases: R. v. MacDonald, 2009 MBCA 36; R. v. M.J., 2018 ONCA 708; R. v. P.H., 2010 MBQB 8 ; R. v. O.K., 2014 BCSC 1870 ; R. v. C.L., 2021MBPC 24 ; R. v. E.M., 2005 ONCJ 25 ; R. v. A.H.H., 2016 NSSC 239; R. v. Omilgoituk, 2010 NWTSC 8; R. v.C.G.O., 2011 BCPC 145; R. v. K. (D.N.), 2004 BCSC 1838; and R. v.

B. (G.), 1998 CarswellNfld 273. [69] In addition, counsel for J.C. filed a casebook which provided the following cases: R. v. Chittamath, 2009 ONCA 239; R. v. Clark,2021 ABCA 117; R. v. Da Silva, 2005 CarswellOnt 7236; R. v. H. (J.), 1999 CarswellOnt 1048; R. v. Lam, 2004 ABQB 78; R. v.McDonald, 2013 SKCA 38; and R. v. Pashe, 1995 CarswellMan 61. [70] Counsel for A.L. submits that the caselaw supports a sentence in the range of two to five years.

Counsel for J.C. similarlyargues that the caselaw supports the sentence put forward on behalf of J.C. [71] I will not review all of the cases but will make both general and specific comments as necessary.

For the most part, the casesprovided by defence are distinguishable: • several cases pre-date the introduction of s. 718.01 of the Code which requires a court to give primary consideration to denunciationand deterrence for an offence involving the abuse of person under 18 years of age; • several of the cases ordered conditional sentences, which have not been available since 2012; • MacDonald, MBCA (three year sentence) was an assault case which is less serious than aggravated assault; • P.H. (18 months aggravated assault) and Omilgoituk (30 months aggravated assault) involved guilty pleas where the children sufferedno lasting harm and recovered from their injuries; • C.L (three years aggravated assault) involved injuries that could have been life threatening but the child appeared not to suffer anyongoing collateral effects; • A.H.H. (two and a half years for aggravated assault) dealt with a child who had permanent disabilities after a single instance of abuse; • the highest sentence was the decision of O.K. which was five years for aggravated assault on a child that was between two and a halfand four months old on as many as five discrete occasions.

The assault resulted in numerous fractures, subdural bleeding and seriouslifelong injuries. However, the accused was in his early 20’s; had no criminal record, made full and frank disclosure to police andentered a guilty plea at an early stage; • the majority of the cases involved offenders who were under 30 years of age; and • none of the cases involved serious physical injuries as well as malnutrition and resulting developmental delay.

[ 72 ] Despite the number of cases I was provided, there are simply no cases sufficiently alike to provide clear guidance in this case. Ultimately, in crafting an appropriate sentence I must begin with the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( see Friesen , para. 32 citing L.M . , at paras. 36-37 ; and R. v.

Ipeelee , 2012 SCC 13 , at paras. 78-79 ) ). [ 73 ] The protection of children is one of the most fundamental values of Canadian society. They are vulnerable and deserving of love, care and protection. In this case, B.C. and D.C. were physically abused by one parent while the other parent looked the other way. They were neglected and malnourished. They were denied medical care when it was so obviously needed. This all occurred over a prolonged period of time. The breach of trust is egregious.

The moral culpability of both A.L. and J.C. is extremely high. [ 74 ] The twins have survived, but they have had to struggle and will continue to have challenges. The impact on the twins, the families and the community is devastating, profound, permanent and to a certain extent, still unknown. X.

CONCLUSION [ 75 ] I have considered the applicable sentencing principles, the primary objectives of denunciation and deterrence, the circumstances of the offences, including the aggravating and mitigating factor s, and the moral blameworthiness of the offenders. [ 76 ] In the circumstances, I sentence A.L. to the following: (

a) with respect to D.C.: (

i) aggravated assault 11 years (ii) criminal negligence cause bodily harm eight years concurrent (

b) With respect to B.C.: (

i) aggravated assault nine years consecutive (ii) criminal negligence cause bodily harm eight years concurrent [ 77 ] This yields a total of 20 years. After considering the principle of totality, I reduce the sentence to 18 years by reducing the aggravated assault charge with respect to D.C to 10 years and with respect to B.C to eight years. [ 78 ] It is agreed that A.L. spent 505 days in custody. She will receive enhanced credit of two years and 27.5 days.

This leaves a go forward sentence from today of 15 years and 338 days. [ 79 ] I sentence J.C. to seven years for criminal negligence cause bodily harm in respect of D.C and six years consecutive in respect of B.C. [ 80 ] This yields a total sentence of 13 years. After considering the principle of totality, I reduce the sentence to 12 years by reducing each charge by six months. [ 81 ] In addition, I am issuing the following ancillary orders with respect to each offender: (a) 10 year weapons prohibition under s.109 of the Code ; and (

b) Primary DNA order in respect to A.L. and secondary DNA order in respect to J.C. [ 82 ] The Crown sought a no contact under s. 743.21(1) of the Code in respect of the six minor children, B.C., D.C., R.C., K.P., K.P., and A.C., as well as the foster parents, Dr. L. K-B., M.B., G.N. and V.N. Defence both suggest that CFS is in a better position than the Court to determine whether or not there should be contact with B.C. and D.C. and therefore the decision should be left to CFS.

They oppose any order relative to the other children or the foster parents. [ 83 ] I am prepared to order that A.L. and J.C. not communicate directly or indirectly with either B.C. or D.C. while in custody unless communication is initiated by or on behalf of B.C. or D.C. I decline to make any order relative to the remaining individuals as they were not the subjects of the charges nor was any information provided that an order was necessary. [ 84 ] In addition, the Crown seeks restitution orders under s. 738(1) of the Code against A.L. and J.C. in the amount of $25,000.00 each payable to Dr. L. K-B.

The amount represents compensation for a fraction of the costs incurred relative to the care of the twins as well as lost revenue. On my reading of the section, such an order is not available in these circumstances and no caselaw was provided which suggests that it is. Accordingly, I will not grant same.

________ ”original signed” _________,J.