WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
A.L.
Before Justice Mara Greene
Reasons for Judgement released September 8, 2022
J. Gibson for the Crown
M. Bharadwaj for A.L.
Reasons for Judgement
1A.L. entered a plea of guilty to one count of failing to provide the necessities of life to her daughter J.M. causing her bodily harm. A.L. seeks a suspended sentence for this offence while the Crown has argued that a conditional sentence of two years less one day is the appropriate sentence. In other words, both parties agreed that a sentence to be served in the community is the appropriate sentence. The only issue is the nature and length of the sentence.
The offence and harm suffered by the victim
2The victim in this case is J.M., the daughter of A.L. and M.M. The essence of the offence is that A.L. and M.M. failed to adequately feed and nourish their daughter to such a degree that by the time of state intervention, J.M., who was 26 ½ months old at the time, weighed only 3.84 kg. This is less than 1 kg more than what she weighed when she was born. According to the medical staff working with J.M., she was so malnourished that J.M. could not walk, talk, stand or roll over. J.M. had delays in every aspect of her life and was suffering from what is referred to as a failure to thrive as a result of her chronic malnutrition.
3In this case, the reason that J.M.’s weight loss and physical deterioration went unnoticed was because A.L. and M.M. failed to obtain proper medical care for J.M. Had J.M. been taken to see a doctor in the months leading up to her apprehension by CAS, J.M.’s physical deterioration would have been noticed. By the time of J.M.’s apprehension on August 14, 2020, she had not seen a doctor since November 27, 2018. She was also not up to date on her immunizations.
4The harm suffered by the victim of this offence is startling. Words do not adequately describe the harm, yet I will attempt to describe just how malnourished she was. As noted above, J.M. weighed 3.84 kg. This is the equivalent of 8.4 pounds. Many infants weigh more than this at birth. Photographs of J.M. from the date she was admitted to hospital portray a very sick and emaciated child, with no fat or muscle on her. Every bone was visible and in places her limp and dehydrated skin sagged around her bones. J.M.’s skin was dry and peeling in places. To anyone even glancing at J.M., her malnutrition would have been obvious.
5The state became involved in this case because on August 14, 2020 M.M. telephoned telehealth Ontario about J.M. He explained that J.M. was underweight and was not talking or walking. He further advised that A.L. was suffering from anxiety and depression.
6As a result of this communication, CAS attended at the residence on August 18, 2020. Upon their arrival, A.L. was overheard saying to M.M. “you called them you deal with them”. After 30 minutes of coaxing, A.L. agreed to let CAS come in and examine J.M.
7A.L. advised the police that J.M. had been losing weight since January 2020. When asked why she had not taken J.M. to the doctor, A.L. explained that it was because she had been unwell and because of COVID 19. I note that in March 2020, two months after the beginning time frame of this offence date, the world was hit with the COVID 19 pandemic.
8A.L. was the main care giver for J.M. Both parties agreed that while J.M.’s father lived with J.M. and A.L., he worked long hours and was often not around to assist with caring for J.M.
9Fortunately, at the present time J.M. is doing very well. I have seen photographs and videos of her with her family. She presently lives with A.L.’s mother. A.L. and M.M. have worked diligently with CAS and have significant access to J.M., seeing her daily. I am told that CAS is working towards having J.M. return to the care of M.M. and A.L. The recent photographs and videos of J.M. with her family show a happy, healthy and loved little girl.
10It should be clear, however, that the path here has not been easy. At the time of admission to hospital, her malnutrition was so severe that it was potentially fatal. J.M. was in hospital for 54 days. She had hypoglycemia, hypothermia, refeeding syndrome, a vitamin D deficiency, a calcium deficiency and a folate deficiency when she was admitted to hospital in August of 2020. The medical practitioners had to gradually increase J.M.’s caloric intake at first, in order to avoid making her sicker. Moreover, she could not take food orally. It had to be provided through a feeding tube for 48 days.
11Since her release from hospital, J.M. has completed occupational therapy and speech therapy. She attends full-day pre-school at a private place, paid for by A.L. and M.M. She also attends music classes at the Royal Conservatory. As previously noted, CAS has approved daily access by A.L. This takes place at A.L.’s mother’s residence. A.L. has also been approved for overnight visits with J.M. as long as they are supervised by A.L.’s mother who is presently caring for J.M.
Circumstances of accused
12A.L. was born in Hong Kong and moved to Vancouver with her mom when she was six years old. A.L. moved to Toronto at age 18. A.L.’s mother is a retired educational assistant, and she has moved to Toronto to care for J.M. A.L.’s father still resides in Hong Kong.
13A.L. has a degree in science from University of Toronto and a graduate degree in clinical research from Michener Institute. A.L. has also completed her performance requirements for the Royal Conservatory of Music.
14After completing her education, A.L. started to work in banking, and this is where she met M.M. A.L. worked in banking until the birth of J.M.
15A.L. has a history of suffering from depression and at the time of her arrest, she was diagnosed as suffering from a major depressive disorder of a chronic nature and a generalized anxiety disorder. She was not taking medication at the time of the offence.
16A.L. was assessed by Dr. Pollandi after her arrest for this matter. She told Dr. Pollandi that she did not know that J.M. was that small but was aware that she was not reaching her milestones. She further indicated that at the time M.M. was away 18 hours a day and that she was essentially acting as single parent a lot of the time.
17A.L. indicated that she has always struggled with depression and in January 2019 it worsened. By then J.M. and A.L. were in a negative pattern where J.M. would smear her feces which resulted in A.L. bathing J.M. and doing the laundry several times a day. A.L. found this very stressful and felt like she was becoming crazy. A.L. expressed that she felt overwhelmed and became more and more depressed and anxious. A.L. now acknowledges that her depression may have affected her ability to see what was going on at the time. She also commented that she was exhausted during this time frame. According to A.L., J.M. had always been a fussy eater and that she went through periods where she turned away from food, lost weight and then would eat a lot and regain the weight.
18One month after J.M. was apprehended, A.L. went to a doctor seeking assistance with her mental health. She was diagnosed with acute stress disorder, major depressive disorder and prescribed medication for her depression. The first few anti-depressants she was prescribed did not work well. She is now taking Cymbalta and this appears to be an effective medication to treat her ongoing mental illness.
19Dr. Pollandi, in his report on A.L. wrote the following about A.L.’s mental health during the time of this offence at page ten,
In my opinion, in the postpartum period and while subject to the stressors described above, A.L.’s depression and anxiety became significantly worse. In her case as is typical with depressive disorders, she had an accompanying deterioration in her judgment, her insight, her distress tolerance and her problem-solving ability. While I am not suggesting that A.L. was psychotic at the material time, I am of the opinion that the severity of her mental disorder was such that it did significantly compromise her insight and judgment, to render understandable in some measure her conduct leading to her failure to provide for her daughter.
20In a letter dated March 14, 2020, Dr. Chan, one of the doctors working with A.L. wrote,
A.L. has been forthcoming with myself regarding her mental health and her legal proceedings. She has been honest in providing information in detail. A.L. has also demonstrated insight into her previous mental health situation, and how it had affected her own well-being and her ability to take care of J. in the past. She was able to describe the psychosocial stressors that contributed to her symptoms which in turn contributed to negligent parenting. She is motivated to prevent this from occurring again.
21Since J.M.’s apprehension, A.L. has worked diligently on her own mental health and has been highly involved with J.M.’s care. She continues to be under a doctor’s care, is receiving counselling and taking her medication. A.L. has also completed parenting courses. She is working with CAS and has demonstrated real insight into her actions.
22Numerous letters of support were also filed on this sentencing hearing from family. A.L.’s family is aware of what has taken place, are supportive of her and assisting her with taking care of J.M. A.L.’s mother, who presently has custody of J.M. wrote A.L. and J.M. love each other a lot and that they are doing well.
Relevant Legal Principles.
23The overarching principle in sentencing in Canada is that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which are outlined in section 718 of the Criminal Code.
24While the Criminal Code identifies a host of objectives that a judge must consider in assessing the appropriate sentence, how much weight a judge gives to any of the objectives is determined on a case-by-case basis. As was recently stated in R. v. Morris 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”. A.L. has been found guilty of an offence involving a child. Pursuant to section 718.01 of the Criminal Code, when a court imposes a sentence for an offence involving the abuse of a young person “it shall give primary consideration of the objectives of denunciation and deterrence of such conduct”. Parliament signaled by enacting 718.01 of the Criminal Code that it is prioritizing deterrence and denunciation in these cases. As was stated in R. v. Lis, 2020 ONCA 551, [2020] O.J. no. 3733 (C.A.) at paragraph 47,
By enacting s. 718.01, Parliament prioritized denunciation and deterrence for offences that involve abuse of children. The words "primary consideration" prescribes a relative ordering of sentencing objectives, a feature that does not appear in their listing in s. 718. This ordering reflects Parliament's intention that sentences "better reflect the seriousness of the offence": Friesen, at paras. 101-102.
25In light of this provision, while A.L.’s mental health issues, which I will discuss below in more detail, in most cases would require a sentence that focuses mostly on rehabilitation, in the case at bar, the paramount objectives must be deterrence and denunciation.
Aggravating and mitigating factors
26Pursuant to section 718.2 of the Criminal Code, a sentencing judge, in determining the appropriate sentence, must consider all the aggravating and mitigating factors. In R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, the Supreme Court of Canada specifically addressed factors the court should consider in cases involving abuse of children. While R. v. Friesen, involved a case of sexual violence, much of what was written applies to physical abuse as well. For example, in paragraph 1 of the decision, the court noted that “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society”. At paragraph 65 the Court went on to state, “The protection of children is one of the most fundamental values of Canadian Society” then at paragraph 66 the court wrote “Children are most vulnerable and at risk at home and among those they trust”. These passages are particularly relevant to this case, as J.M. was only two years old at the time of this offence. It took place in her home, by the people that were meant to protect her. In addition to the direction from the Supreme Court of Canada in R. v. Friesen, supra, pursuant to section 718.2, it is an aggravating factor to abuse someone under the age of 18. Therefore, a key aggravating factor in this case is the young age and vulnerability of the victim.
27The other aggravating factors in this case include the extent of the harm done to J.M., the length of time in which A.L. failed to provide the necessities of life to J.M. by failing to properly nourish her and obtain medical care for her and that A.L. was in a position of trust in relation to J.M.
28In addition to the aggravating factors highlighted above, there are some meaningful mitigating factors in this case. The mitigating factors include her plea of guilty, her acceptance of responsibility for her actions and her prior good character. Moreover, A.L. has incredible insight into her criminal actions. She has been engaging in treatment for her major mental illness, is taking medication and engaging in therapy. A.L. has worked diligently with the CAS to rebuild her relationship with J.M. and has demonstrated in the past two years a desire to care for her daughter properly, learn how to parent properly and do what is required to be a good parent.
29In addition to the above mitigating factors, I also find that A.L.’s mental illness at the time of the offence is significantly mitigating. I appreciate that Crown counsel argued that I should not put a lot of weight of A.L.’s mental health issue, but respectfully I disagree. In order for an accused person’s mental health to be a mitigating factor on sentencing, there must be a causal nexus between the criminal offence and the mental illness (R. v. Hart, [2015] O.J. No. 3396 (C.A.)). Recently, in R. v. Fabbro, [2021] O.J. No. 3649 (C.A.), the Court of Appeal specifically addressed what was required before an offender’s mental health could be considered a mitigating factor on sentence. The court stated at paragraph 25,
for mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds.
30In the case at bar, it is an inescapable conclusion that A.L.’s mental health played a significant role in the present offence. Dr. Pollandi, in his uncontradicted report, indicated as much. Dr. Pollandi wrote as follows,
While I am not suggesting that A.L. was psychotic at the material time, I am of the opinion that the severity of her mental disorder was such that it did significantly compromise her insight and judgment, to render understandable in some measure her conduct leading to her failure to provide for her daughter.
31In my view, A.L.’s major mental illness that was untreated at the time of this offence and, as was stated by Dr. Pollandi, compromised her insight and judgment at the relevant time serves to reduce A.L.’s overall moral culpability. I am mindful that in other cases judges have found that a parent’s personal circumstances do not reduce their moral culpability in cases involving harm to their children. Given the evidence in this case, however, I am satisfied that it A.L.’s mental illness is a meaningful mitigating factor that serves to reduce her overall moral culpability. A.L. has a long-standing history of mental illness. She was in a major depressive episode at the time of the offending behaviour and I have psychiatric evidence establishing a clear nexus between her mental illness and her offence. I am not saying that her mental illness rendered A.L. not culpable. It is not an excuse or a justification. It merely provides a context to understand her actions and level of moral culpability.
32One final factor that both parties agree is mitigating is the fact that this offence occurred partly during the COVID 19 pandemic. The offence date is from January 1, 2020, until August 20, 2020. The pandemic began in March of 2020. Both parties agree that this is a significant mitigating factor, especially in light of A.L.’s ongoing mental health issues. During the pandemic, A.L., like others, was isolated. Access to care and support was very difficult. While it is impossible to quantify what role this had in this offence, I agree with both counsel’s submission that it is a relevant and meaningful mitigating factor. I can take judicial notice of the difficulties everyone had during COVID 19, the well documented increase in mental health struggles and reduced access to support.
Range of sentence to be considered
34Sentencing in Canada is a very individualized process. Having said that, pursuant to section 718 of the Criminal Code, similar sentences should be imposed for similar offences. As such, it is necessary to look at the range of sentence normally imposed for this offence. These ranges, however, are not rigid. They are “starting points and guidelines, not hard and fast rules” (see R. v. Friesen, supra, at para 37).
35When looking at the range of sentences imposed for this offence, I must also be mindful that over the years Parliament has increased the maximum penalty for this offence. In light of this fact, sentences from years ago may not properly reflect the range of sentences to be imposed now. As was noted in R. v. Friesen, when Parliament increases the penalty for an offence, it is a signal that such offences should now receive higher sentences, the court stated at paragraph 87,
Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” (Lacasse, at para 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.
36The Supreme Court of Canada went on to state at paragraph 100,
To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.
37In a recent case, R. v. Lis, 2020 ONCA 551, [2020] O.J. No 3733 (CA), a three-year jail sentence was imposed on a parent who failed to provide the necessities of life to her child resulting in the child’s death. In that case, the victim had cerebral palsy. She was to see a doctor every three months, but the mother had not taken her to doctor in the 18 months before she died. In the days before her death, the parent had told a friend that her child was not eating or drinking. She was told to take her child to the doctor, but she did not. Days later, the victim died of malnutrition and dehydration. She had lost 1/3 of her body weight in the five and a half weeks leading up to her death. In mitigation the sentencing judge noted that the offender had a traumatic childhood and had a history of drug abuse. In increasing the sentence to three years, the Court of Appeal held that it was an error to place too much weight on the personal circumstances of the offender. The Court also found that the sentencing judge erred in viewing the offender’s actions as a momentary lapse and as such failed to place sufficient responsibility on the offender.
38Five years earlier, in R. v. S.J., [2015] ONCA 97, a sentence of six months jail was imposed on a mother and a father for failing to provide the necessities of life to their three year old child. In that case, the victim had lived in India until he was almost three years old. Upon his return to Canada, people noticed that his skin was dry and cracking. The mother took the child to the doctor shortly after his return to Canada. The doctor wanted a stool sample to test but the mother never brought it in. Two weeks later, the victim’s mother took him to the doctor again and advised that he was not eating or drinking. Even though the victim continued to decline, he was not taken to the doctor again. A few weeks later the victim had a seizure. According to the medical evidence, the victim was malnourished, anemic and had open wounds and scars all over his body. The victim also had recent bruising and other significant injures which could not be dated. The medical professionals working with the victim concluded that he had been battered. What is particularly noteworthy in this case is that the offenders had other children who had been well cared for and who saw medical practitioners during the relevant time frame. A similar sentence of six months was also imposed on the father. The court noted that even though the father had only been around for the last month prior to state intervention, this was enough time for the father to have noticed the child needed medical assistance, yet he failed to take his child to the hospital.
39In R. v. N.G.H., [2020] S.J. No. 120 (Sask Prov Court), the mother of the victims received a 16 month Conditional Sentence and the father received a 20 month Conditional Sentence for their failure to provide the necessities of life to their two children. At the time of the arrest, one victim was 16 months old and the other was six years old. The police found the children in a state of complete neglect. The infant was unclean, in a dirty diaper and smelling of urine and sweat. He also had bruises, sores and burns on his body. His head was flattened from lying on his back for too long. The children were unvaccinated, had painful tooth decay and were dehydrated. There was evidence of a previous facture to one of the children’s arms and of other intentionally inflicted injuries. The older child had lice and scabs on her. She had missed school because of bullying that was based on a rash she had on her body. The six-year-old was in charge of obtaining food for her and her brother. Both parents were indigenous and abused alcohol. Since the arrest on these charges, both parents had changed their lives around and were doing well. Because of their progress since their arrest, the trial judge was of the view that sending to jail would send them backwards so a conditional sentence was imposed instead.
40In 2015, in the case of R. v. S.H., 2015 ONSC 2050, [2015] O.J. No. 1862 (SCJ), a sentence of 30 months in jail was imposed on the parents of a 27-month-old child who died because of chronic malnutrition and an asthma attack. While the parents did not deliberately starve their daughter to death, they nonetheless failed to provide their daughter with sufficient nutrients to sustain her life. When the child was 16 months old, she was still not walking or crawling, so the parents took her to see the doctor. The doctor noticed issues with the victim’s skull bones and directed them to see a specialist. The parents did not follow through with this direction and ignored all medical advice. Eleven months later the victim died. In imposing a sentence of 30 months, the court noted that the parents conduct took place over an extended period of time, that the victim was a child, that the parents ignored medical advice and there was no explanation for their failure to follow medical advice.
41In a dated, but somewhat similar case to the case at bar, a sentence of nine months jail was imposed on parents who failed to provide the necessities to their two children aged one and two. In R. v. D.E., [2005] O.J. No. 2589 (SCJ), the parents failed to provide adequate nutrition such that the children were significantly underweight. The youngest could not lift his head and was lethargic. The court found that the neglect occurred over months. Both parents had mental health issues. The mother was suffering from depression and had a major depressive episode, and the father had a social phobia and suffered from anxiety and depression. Despite the mental health diagnoses, the court held that the mental health of the parents did not cause, explain or excuse the neglect of their children. The court found that the parents chose to engage in their own leisure activities instead of caring for their children.
42The final case that is of some value in assessing the appropriate sentence in this case is that of R. v. T.T., [2012] O.J. No. 3603 (SCJ). In R. v. T.T., the accused was found guilty of failing to provide the necessities of life to three of her four children. She received a six-month conditional sentence. The accused was a vegan and fed her children a raw food vegan diet. The accused controlled the food intake of all her children including their portion sizes. In 2010, the accused sought medical assistance for dietary support and was referred to a pediatrician. T.T. refused, however, to take her children to the pediatrician which led to CAS becoming involved. The children were admitted to hospital for malnutrition, rickets and osteopenia. All three children were hospitalized for extended periods of time. Two were discharged in June and the third three months later. While each child made a full recovery, the lengthy hospital stay speaks volumes for the severity of the harm suffered by each child.
43In my view, the vast majority of cases involving parents failing to provide the necessities of life to their young/infant children involve some kind of jail sentence. In all cases where a child died as a result of the parental neglect, penitentiary sentences were imposed. Longer jail sentences were also imposed where there was intentional abuse in addition to parental neglect. Generally speaking, the longer the period of neglect and the greater the harm suffered by the victim, the longer the sentence. Shorter sentences, and at times conditional sentences, were imposed where the child suffered bodily harm but made a full recovery.
The Appropriate Sentence
44Deciding the appropriate sentence in the case at bar is exceptionally difficult. On one hand, A.L. is a very sympathetic person. At the time of the offence, she was suffering from a significant mental illness, was unmedicated and during the latter months was socially isolated due to her mental illness, the pandemic and the fact that her partner worked long hours. A.L.’s mental health issues are well documented, and I have a report that establishes a clear nexus between A.L.’s mental health issues and her offending behaviour. Since her arrest, A.L. has obtained treatment, is doing very well and working diligently with CAS to learn how to parent her child properly so that she can eventually return to being a full-time parent for her child. It appears that CAS is satisfied with A.L.’s progress, as her access to J.M. is consistently increasing and I understand that everyone is working towards re-unification. It appears, now that A.L. is medicated and receiving psychiatric assistance, she is learning the skills necessary to care for J.M. properly. The evidence before me establishes that A.L. loves her daughter and did not intentionally inflict harm to her child.
45On the other hand, A.L.’s inaction did inflict significant harm on a vulnerable child who was completely dependent on A.L. for her wellbeing. J.M. was so visibly ill by the time of state intervention, that it is difficult to understand how A.L. did not seek help for her child or even reach out to her own mother for assistance. Moreover, despite the significant mitigating factors, I am required to impose a sentence that focuses on the objectives of deterrence and denunciation.
46In the case at bar, both parties agree that any sentence I impose should be served in the community. It was the Crown’s position on sentence that while normally a jail sentence, to be served in a jail would be the appropriate sentence, given that this offence occurred during the beginning months of COVID 19 and A.L.’s mental health issues, a conditional sentence – that is a jail sentence to be served in the community – is more appropriate. The Crown further argued that since a conditional sentence is already on the more lenient end for this kind of offence, the maximum conditional sentence followed by three years of probation ought to be imposed. A.L.’s counsel argued that the mitigating factors in this case open the door to a suspended sentence despite the numerous aggravating factors highlighted above.
47I am mindful that this case is easily distinguished from many of the cases I reviewed above. First of all, this is not a case involving the death of a child, nor is there any suggestion of physical abuse or A.L. intentionally wanting to harm her child. Secondly, while many of the cases reviewed above involved parents with traumatic pasts and mental health struggles, the psychiatric evidence linking the mental illness to the offence appears to be absent. For example, the case of R. v. D.E., supra, on its face seems similar to the case at bar, in that the youngest child, like J.M. was so malnourished that she could not lift her head and the neglect occurred over months. Moreover, there was evidence of ongoing mental health issues at the time in that the mother suffered from depression, like A.L. Having said that, the court also commented that the mother in R. v. D.E., supra, chose to engage in her own leisure activities instead of caring for her child. That is not the situation in the case at bar. A.L. does not appear to have had any social or leisure life. While she was able to dress herself and feed herself, there is no evidence that her lack of care for J.M. was linked to a desire to care for her own personal needs or interests over her child’s needs. As noted by Dr. Pollandi, A.L.’s lack of judgment and ability to care for her child was linked to her ongoing mental illness.
48This case is also somewhat similar to that of R. v. N.G.H., supra, where a 16 month conditional sentence was imposed on the mother of the child. In that case not only was the infant child malnourished, he also had other medical issues that had gone untreated and had been physically abused. Moreover, when CAS arrived, he was in his playpen, covered in his own urine, and there were three dirty diapers in his playpen with him. The back of his head was flattened because he had not moved enough, he was behind in his milestones and the medical practitioners did not think he would make a full recovery. The main reason the parents had failed to seek medical attention was because they were alcoholics and were worried that the state would apprehend the children. The neglect in R. v. N.G.H., in my view is more aggravating than that in the case at bar. I am mindful that in N.G.H., the accused were both of Indigenous descent and that the Gladue principles were engaged, but even with this difference, in my view the facts of the case before me calls for a sentence less than what was imposed in R. v. N.G.H.
49The key to imposing an appropriate sentence in this case, is to place sufficient weight on A.L.’s mental illness without over emphasizing it, while also taking into account the harm caused to J.M., and the requirement that the sentence I impose focus on the objectives of deterrence and denunciation.
50A suspended sentence in this case, in my view, would place too much weight on A.L.’s personal circumstances and not enough weight to the aggravating factors and to the objectives of deterrence and denunciation. I appreciate that A.L. did not want to harm her child. I accept that A.L. loves J.M. and is now working as hard as possible to treat her mental illness so that she can properly care for her child. I accept that A.L. has insight into her behaviour and has taken full responsibility for her actions. The objectives of deterrence and denunciation, however, must be at the forefront of this sentence. A suspended sentence would not satisfy these objectives, even with the mitigating factors highlighted above.
51I do agree with Crown counsel that a conditional sentence is appropriate in this case. There is no statutory bar to imposing a conditional sentence in this case. It is to everyone’s benefit for A.L. to be in the community to continue to work with CAS and be involved in J.M.’s life. Similar to the decision in R. v. N.G.H., supra, A.L. has made so much progress while on release pending sentence, placing her in jail would impede the progress made. A conditional sentence is still a jail sentence and can serve as a deterrent to others and properly denounce the offending behaviour.
52A two year less a day conditional sentence, however, is not necessary, in my view, to meet the objectives of deterrence and denunciation in this case. Such a lengthy sentence would place too much weight on the aggravating factors and insufficient weight on the mitigating factors. The conditional sentence, in my view, must be long enough to make it clear to A.L. and the public that this is a serious offence and that there will be a meaningful consequence, but a two-year sentence places insufficient weight on A.L.’s mental illness and the progress she has made since her arrest. In my view, a conditional sentence in the range of 10 months to one year is a meaningful sentence that is long enough to meet the objectives of deterrence and denunciation while still giving meaning to the other objectives of sentencing. Given how well A.L. has been doing in the community, I am inclined to impose a sentence at the lowest end of this range. I therefore impose a ten-month conditional sentence. This sentence will be followed by two years probation. I know the Crown has sought a three year probationary period, but my in my view, given the progress that A.L. has made over the past two years, a further two and a half years of state supervision is adequate to address her rehabilitative needs and protect J.M.
53The terms of the conditional sentence will include reporting to your supervisor as directed, residing at an identified address, attending psychiatric services and treatment as directed by your supervisor and attending counselling as required. The conditional sentence will also include other terms relating to J.M. The exact terms will be finalized in court with input from all parties.
54The terms of probation will also include a reporting condition, a counselling condition and an access to J.M. condition that will be finalized in court upon receiving input from all parties.