Court Information
Ontario Court of Justice
Date: 2014-12-11
Court File No.: Central East - Newmarket 4911-998-13-04356-00
Parties
Between:
Her Majesty the Queen
— And —
Flordeliza Lamsen
Before
Justice James R. Chaffe
Oral Reasons for Sentence given on: September 16, 2014
Written Reasons for Sentence released on: December 11, 2014
Counsel
E. Barnier — counsel for the Crown
N. Charitsis — counsel for the defendant Flordeliza Lamsen
Decision
CHAFFE J.:
[1] Flordeliza Lamsen pleaded guilty to the assault of Carol Bursey. The evidence of the assault was contained in two recordings from June 10, 2013, of Ms. Bursey's room in the long term care facility where she is a resident. The recordings were made by a camera placed in the room by Ms. Bursey's daughter due to concerns she had regarding her mother's care.
[2] In the first recording (7:14 -7:19) we see Ms. Bursey enduring what appeared to be the morning routine of rousing, cleaning with a cloth, attempted medication, dressing and being assisted into the bathroom.
[3] Ms. Lamsen is present throughout the video and is the primary care giver. Two other females enter and exit the room. The first failed to administer some cold medicine. The second assisted with moving Ms. Bursey from her bed to the bathroom.
[4] During the period of time that Ms. Lamsen is alone with Ms. Bursey, her conduct toward her is starkly different than when the other staff are present. At the outset of the recording, Ms. Lamsen is seen to pull back the covers of Ms. Bursey's bed and Ms. Bursey exclaims, "Mom." Another female then entered the room and attempted to administer some cold medicine. Once she left the room Ms. Lamsen pulled Ms. Bursey to a seated position on the edge of the bed with two hands on either side of Ms. Bursey's head. Ms. Lamsen then began the process of dressing Ms. Lamsen. Ms. Bursey was seated at the edge of the bed. Ms. Bursey rolled back onto her back on the bed and Ms. Lamsen then grabbed her by the shirt, then the hair on the top of her head and wrenched her back to a seated position. Ms. Bursey is heard to say, "Ow", when she is pulled up by her hair. Ms. Lamsen then shut the door. She told Ms. Bursey to get up and pulled her up by her arm. Ms. Bursey complained that she was cold. Ms. Lamsen dressed her with an undershirt. Ms. Bursey again rolled onto her back on the bed and Ms. Lamsen told her to get up and, with obvious frustration, grabbed Ms. Bursey by the shirt and pulled, then grabbed her by the hair on the top of her head and wrenched her back to a seated position. Someone then knocked on the door and entered as Ms. Lamsen was putting on Ms. Bursey's over-shirt. She rolled back onto the bed and Ms. Lamsen and the other female then pulled her into a seated position by the shoulders, one on each side of Ms. Bursey. Then, as they walked her into the bathroom, Ms. Lamsen and the other worker argued over cleaning issues.
[5] The second video (7:22:17) commenced as Ms. Lamsen walked Ms. Bursey to a wheel chair. The chair's back is to the camera and for the duration of the video as Ms. Lamsen attended to Ms. Bursey from the front of the chair. The chair significantly obstructed the view of Ms. Bursey, and to a lesser extent Ms. Lamsen, but the back of Ms. Bursey's head is visible as are some of the movements of her body in the chair.
[6] Once Ms. Bursey is seated, Ms. Lamsen appears to vigorously wipe/dry her upper body with a towel. Seconds into this routine Ms. Lamsen appears to strike or slap Ms. Bursey in the upper body/face with her right hand. Ms. Lamsen then throws the towel on the bed and got what appeared to be a face towel and vigorously wiped her upper body and face. She told Ms. Brusey to lean back, then grabbed her hair and wrenched her body forward. After she told Ms. Bursey to lean forward, she appeared to wipe her back. Ms. Lamsen then dropped her back into the chair before grabbing her by the hair and wrenching her forward again. Ms. Bursey complained loudly at this as Ms. Lamsen pulled her shirt off, and then let her fall back into the chair. Ms. Lamsen got a new shirt, then very roughly put it on Ms. Bursey using her hair as a handle to control Ms. Bursey's upper body as she uttered staccato commands but provided no time for Ms. Bursey to react. Ms. Bursey complained loudly that she was cold. Ms. Lamsen then retrieved an over-shirt from the closet and dressed Ms. Bursey, again wrenching her into position to put on the garment using her hair and scalp as a handle. At one point she told Ms. Bursey to lean forward and not to give her a hard time. Ms. Lamsen appeared to struggle with Ms. Bursey as she tried to put her arms through the long-sleeved shirt. Ms. Bursey was pulled forward by the hair and slammed back into the seat and Ms. Lamsen appeared to strike her upper body or head with her right hand. The shirt on, Ms. Lamsen then attended to getting her legs and feet in position on the wheelchair foot rests. Ms. Lamsen asked Ms. Bursey to lift her legs and appeared to punch her twice during the process, telling Ms. Bursey not to kick her. Ms. Lamsen then got a cloth and wiped her face again. Ms. Bursey is asked to sit up, sit back, sit up repeatedly as Ms. Lamsen again wrenched her forward and back into the seat. Throughout Ms. Bursey utters responses, "I did. What do you mean?", etc. Ms. Lamsen then put the removable table top onto the wheelchair. She appeared to have trouble getting part of the table top onto the chair and repeatedly told Ms. Bursey to move her hand. Ms. Bursey said, "Don't hit me." Ms. Lamsen appeared to manhandle Ms Bursey in order to get the table top into position. Ms. Lamsen then put a blanket on Ms. Burley's legs and the door was finally opened.
Aggravating and Mitigating Features
[7] Crown counsel has submitted the principles of general deterrence and denunciation must be given paramountcy in this case. Ms. Bursey was an extraordinarily vulnerable victim. Ms. Lamsen was in a position of trust and power over her given her position as a personal care worker in the long term care facility where Ms. Bursey was a resident. The Crown has submitted that a fit sentence in the circumstances of this case requires a term of incarceration and that a conditional sentence is inconsistent with the principles of deterrence and denunciation.
[8] Counsel for Ms. Lamsen has submitted that a conditional sentence may be crafted that can adequately address deterrence and denunciation and has recommended a conditional sentence of two years less a day, a sentence longer than would have been imposed as a jail sentence and beyond the 6 month maximum for this summary conviction offence.
[9] The aggravating features of this case are obvious. Ms. Bursey, at the time of the offence, was a frail, 87-year-old woman with Alzheimer's disease. She had reached the point in her life where self-care and independence were impossible. She was a resident in a long term care facility where she was to be bathed, clothed, fed, comforted and held safe. At this stage of her life, and on June 10, 2013, she was as vulnerable as an infant.
[10] Ms. Lamsen was her personal care worker. She was responsible for Ms. Bursey's care. She was in a position of trust and power over Ms. Bursey. Practically, she had quite direct control over the quality and dignity of Ms. Bursey's life.
[11] Ms. Lamsen betrayed this trust. It is apparent from her treatment of Ms. Bursey that Ms. Bursey's value as a human being was much diminished in Ms. Lamsen's eyes. Ms. Bursey had become a troublesome, frustrating task which she conducted roughly, quickly and with contempt. In her eyes, Ms. Bursey's hair required brushing, but also served as a handle for her to wrench about her frail body. Ms. Bursey's cries at her harsh treatment evoked no sympathy, only irritation. Ms. Bursey's feeble resistance to Ms. Lamsen's assaultive behaviour attracted no shame, only further abuse. Of course, this assaultive conduct stopped immediately when others were present. This change in conduct betrayed her guilty mind. Ms. Lamsen was working with someone who could not fight back, whose complaints if voiced would not likely be believed. Ms. Bursey had no power over her life and treatment anymore. It had been given to Ms. Lamsen and she abused this power. And, at least in the recordings of Ms. Bursey's treatment on June 10, 2013, she took pains to keep this abuse a secret.
[12] Counsel for Ms. Lamsen referred to the onerous, unfair conditions and workloads under which Ms. Lamsen laboured. While I recognize that these conditions and workloads should attract scrutiny and, if true, vigorous redress, this matter is not before me. Ms. Lamsen's conduct is. It was up to Ms. Lamsen, morally and professionally, to care for Ms. Bursey as she would a human being.
[13] By way of mitigation Ms. Lamsen pleaded guilty at the earliest opportunity, has no criminal record, completed and continues to take counselling and has had, as is evidenced by the glowing letters of support filed by counsel, the confidence of her employer and other families regarding her treatment of other residents in long term care. Her pre-sentence report speaks of a long-standing contribution to her community, strong family and community support and she is a very good candidate for rehabilitation.
Sentencing Principles
Deterrence and Denunciation
[14] It has been recognized that Canada has an aging population and that each year increasing numbers of elderly persons are being placed in long term care facilities. Courts have considered that persons like Ms. Bursey should attract the same statutory protection that children are meant to have under s. 718.01, given their analogous vulnerability. Section 718.2(a) (ii),(iii) statutorily recognizes that breach of trust is particularly aggravating, which is completely appropriate in our circumstances given the supreme value of this trust to the vulnerable, their families and friends and our society as a whole.
[15] In R. v. Foubert, Justice McKinnon spoke of the critical importance of caregivers and the bond of trust that must be fostered:
30 In my opinion, there is little to distinguish individuals suffering from Alzheimer's disease or severe dementia from children. Both are among the most vulnerable members of our society. Just as one is forbidden to strike a baby, one is forbidden to strike a vulnerable, elderly person. This should not be construed as saying that in appropriate circumstances reasonable force can be employed in controlling elderly individuals who are, for whatever reason, lashing out, but such force must be applied with the utmost discretion, employing the least force necessary. That said, any application of force must be the final option. Caregivers of the elderly, particularly those suffering from Alzheimer's disease and dementia, hold tremendous power. That power cannot be abused.
31 Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court shall deal with them harshly. Caregivers often work in environments where witnesses are not present. As such, they must deal with those entrusted to their care in the utmost good faith. Families who entrust their aged parents to institutions often do so with a sense of overwhelming guilt and desperate resignation. They have the absolute right to expect that those entrusted with the care of their aged parents will at all times act professionally, and within the bounds of the law.
32 In my view, the only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that trust will be sent to jail. In my view, incarceration is the only reasonable alternative to ensure a safe and secure environment for those extremely vulnerable individuals who are at the mercy of their caregivers.
Availability of a Conditional Sentence
[16] Counsel for Ms. Lamsen has argued with some skill and passion that a very lengthy conditional sentence would satisfy the principles of general deterrence and denunciation.
[17] In R. v. Lozada, a care giver was found to have bent back the fingers of an elderly resident as he attempted to strike the care giver. There were no visible injuries to the victim in that case and the care giver had no criminal record and was well regarded by his peers and families of other residents. Justice Perkins-McVey found that:
28 The aggravating fact in this case is that Mr. Lozada was a PSW worker and Mr. Annany was entrusted to his care. I agree that general deterrence is required and that the abuse of the elderly is a growing problem that cannot be tolerated. That being said, Mr. Lozada has no prior record. He was suffering from stress and depression at the time. I accept that but for this incident and the incident in his employment file, that for the majority of his 21 years, he was a patient and caring PSW worker dealing with the most challenging patients, those with Alzheimer's, under stressful circumstances.
29 As indicated, it is clear that Mr. Lozada has been deterred by the process of being charged, the trial, the loss of his job, the loss of his reputation, his mental health has been profoundly affected. Mr. Lozada will have a criminal record which will aversively affect and likely prevent him from ever working with a vulnerable sector either in a volunteer or professional capacity.
30 This is an assault, but it is an assault at the lower end of assaults. Three fingers were briefly pushed back as Mr. Lozada was being swung at and hit by Mr. Annany. There were no bruises or marks on Mr. Annany's fragile skin. This is not an assault on a scale seen in R. v. Foubert . This was not a calculated or venomous assault. This is, however, a breach of trust and for that reason, a jail sentence is warranted, but I find that Mr. Lozada poses no risk to the community and, but for this event, has no criminal record. This is an assault where there's no injuries. This was an inappropriate response to a difficult and challenging situation.
[18] Obviously, the gravity of the assault in Lozada in terms of duration, motivation, and frequency are not analogous to this case, although the antecedents of the accused are similar.
[19] In R. v. Proulx, the Supreme Court of Canada recognized that a conditional sentence is intended to address both punitive and rehabilitative objectives. Counsel for Ms. Lamsen has argued vigorously that a conditional sentence of two years less a day, with real restrictions on her liberty and a lengthy probation would appropriately address the paramount principles of deterrence and denunciation in this case. It has been submitted that such a sentence is not necessary to specifically deter Ms. Lamsen, who has expressed real remorse for her conduct and vowed not to engage in this work ever again. I agree with counsel that the public would not be at risk from Ms. Lamsen if she were to serve her sentence in the community and that she had very good prospects for rehabilitation. There is no evidence of injuries from this assaultive conduct and the conduct, while repetitive and of some duration, is towards the less serious end of the continuum in terms of physical impact. Of course there is no statutory bar to a conditional sentence in the circumstances of this case.
[20] I have carefully considered the principles set out in R. v. Proulx and the submissions of counsel but I am unable to reconcile a conditional sentence with the gravity of this offence, the breach of trust, the vulnerability of the victim and the paramount principles of deterrence and denunciation. I am of the view that a conditional sentence in this case would not be, "...consistent with the fundamental purpose and principles of sentencing..." pursuant to s. 742.1 (a) of the Criminal Code.
[21] The importance of the bond of trust between care-giver and vulnerable, defenseless elders must be recognized in this case. In this case the breach of this bond of trust and the degree of responsibility of Ms. Lamsen requires a sentence of incarceration.
[22] I find that the gravity of this offence for which Ms. Lamsen is completely responsible is inconsistent with a conditional sentence.
[23] The Crown has sought the maximum penalty for assault simpliciter having elected to proceed summarily. I find that Ms. Lamsen's conduct, for the reasons set out above approaches the status of worst offence. While Ms. Lamsen cannot be deemed to be the worst offender, a significant period of custody is required in the circumstances of this case.
Sentence
[24] I sentence Ms. Lamsen to 5 months jail to be followed by 3 years probation on the following terms:
Keep the peace and be of good behaviour.
Appear before the court as required to do so.
Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in your employment or occupation.
Report within 48 hours of your release from custody to a probation officer and thereafter as required.
Not associate or communicate, directly or indirectly, with Carol Bursey.
Not to attend within 200 metres of the known place of residence of Carol Bursey.
Attend for such assessment and counselling for anger management as the probation officer or their designate may direct and not stop that counselling without prior written permission of the probation officer.
Execute a release of medical, psychiatric or other confidential information to your doctor/counsellor in favour of the probation officer so that they can discuss your progress.
You shall not seek any employment in any capacity, paid or voluntary, which involves contact with vulnerable persons, including as a personal care worker.
Released: December 11, 2014
Signed: Justice James R. Chaffe