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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2019-10-30
Court File No.: Sudbury 4011-998-18-2515
Between:
Her Majesty the Queen
— AND —
E.W.
Before: Justice John D. Keast
Heard on: September 5, 2019
Decision on Sentencing released on: October 30, 2019
Counsel:
- Jody L. Ostapiw — counsel for the Crown
- Stephanie Farrell — counsel for the accused E.W.
- P. Berk Keaney — co-counsel for the accused E.W.
1: INTRODUCTION
[1] The issue in this sentence hearing is a fit sentence for a 31 year old mother, who's 18 month old son drowned in the bathtub, while she was in another room engaged in an eleven (11) minute Facebook conversation.
[2] The Crown requests a 9-month jail sentence. The defence requests a 4-month conditional sentence or house arrest.
[3] The mother pleaded guilty that, on the 13th day of September 2017, in the City of Greater Sudbury, did being the parent of M.G., a child under the age of 16 years, did fail without lawful excuse to provide the necessities of life to M.G., thereby causing the health of M.G. to be endangered permanently contrary to section 215(2)(a) of the Criminal Code of Canada.
2: FACTS
[4] The accused is the mother of two young boys. (Shortly after the death of the child, the mother discovered she was pregnant for another child. That child was apprehended by the Children's Aid Society.) The older boy is A.G., who at the time was 3 years and 10 months old. The deceased, M.G. was 18 months old. The children were residing with the mother at an apartment in the City of Greater Sudbury. The father, C.G. had a separate residence close by. They had been separated since the youngest child's birth. They had an informal child sharing arrangement that appeared to be reasonably amicable.
[5] On the fateful day, the mother and children were eating chocolate pancakes. As a result, the older child became very dirty. The mother decided to give the older child a bath. Though the younger child was not in need of a bath, the mother made the decision to place that child in the bathtub with the older child.
[6] While in the process of bathing her children, the mother noticed there was only one towel in the bathroom. She left the bathroom to retrieve a second towel. She went into her bedroom which was located directly beside the bathroom, in order to retrieve the second towel.
[7] Though not known by the police on the day of the incident, the mother utilized her cell phone that was charging in her bedroom. She had a Facebook conversation with a friend. The conversation commenced at approximately 3:43 p.m. and lasted until 3:54 p.m., a span of 11 minutes. A total of 21 messages were exchanged between the mother and her friend.
[8] While the mother was in her bedroom, she indicated she heard crying and splashing. She heard this while outside of the bathroom. It stopped and she returned to the bathroom.
[9] When the mother returned to the bathroom, she discovered her younger son lying face up in the bathtub unresponsive. The mother removed the child from the bathtub and brought him to her room. At approximately 3:56 p.m. she called the father to seek his help. She did this because he lived nearby, and she felt it would be faster than calling 9-1-1. However, the father was working out-of-town. The father described her demeanour on the phone as one of panic. He told her to hang up and call 9-1-1. The phone call with the father lasted just over one minute.
[10] The mother next contacted a friend who lived close by. This call was made at approximately 3:58 p.m. and lasted 28 seconds. The friend indicated the mother was emotional, screaming and panicking. She quotes the mother as saying the child was not breathing.
[11] The mother contacted 9-1-1 at approximately 3:59 p.m. She advised the operator her son was unconscious, and she did not know what really happened to him. She opined that her son had fallen in the bathtub and was not responsive. The 9-1-1 operator provided instructions as to how to conduct CPR. The mother attempted to resuscitate the child.
[12] Emergency Services arrived at the residence while the mother was still on the phone with 9-1-1. The child was rushed to Health Sciences North. At 4:31 p.m. this 18-month-old boy was pronounced deceased.
[13] While at the hospital, the mother provided to police an initial rendition of events. The mother indicated she had been present for the child falling in the tub. Subsequently, the mother admitted she was not present as she had left the bathroom for an unknown length of time to retrieve a towel. She did not know if the child slipped in the tub or if the older brother pushed him.
[14] In response to a suggestion from the police, the mother indicated she may have only been gone from the bathroom for a minute.
[15] One day later, on September 14th, 2017, a post-mortem examination was conducted on the child by a forensic pathologist. It was concluded that the cause of death was drowning. The report indicated there was no evidence of neglect or malnutrition. There was a single relatively minor contusion of the scalp which would be consistent with a fall or possibly resuscitation attempts.
2:1 Facebook Video
[16] Some 5 weeks after the child's death, on October 21st, 2017, the mother conducted a 32-minute live Facebook chat. During the 5-week period, the mother learned from different sources of considerable inuendo and gossip about her role in the death of the child. Many referred to her as a child killer. The purpose of the video was to explain the circumstances surrounding the incident and to respond to inappropriate allegations.
[17] The video was an emotional, rambling, chaotic and expletive laden rant. On completion, the video was posted to Facebook.
[18] She indicated she left the bathroom for a "split minute" to get another towel. She estimated it took about a minute. During this time, she heard the child crying. She recalls saying to herself she has to hurry back to the bathroom. By the time she got back to the bathroom, he had stopped crying. He was face down in the water.
[19] In speculating as to what happened, she thought the older child was pushing him around or biting him. At one point in her reflection, she appeared to be in a pre-sleep daze and said she had an image of the older child pushing him, like downing him under water. She said it was not on purpose and he did not know he was hurting his brother, he did not know he was going to kill his brother. He thought he was probably just 'horsing around' with him or just playing around.
[20] At the Emergency Department of Health Sciences North, she lashed out at the Sudbury doctors referring to one as a "stupid fucking doctor". "You're going to tell me there's nothing you can do, you fucking bullshitter, liars, fucking doctors". She said that if this happened in Toronto, the Toronto doctors would have saved his life. She makes it clear that is how she felt on the day at the hospital and she still feels that way.
[21] Of interest, it should be noted the mother made no mention of the eleven minute Facebook conversation.
2:2 Police Statement
[22] On June 21st, 2018 the mother attended the Greater Sudbury Police Service headquarters to provide a statement to the police. At the outset of the statement, she was advised by the police, since her initial statement at the hospital, more details had been revealed. She was asked to be completely candid as to her recollection of the day.
[23] Initially, the mother advised the police she left the bathroom in order to retrieve a second towel. She did not feel like she was gone for long. While gone, she heard splashing and crying coming from the bathroom. She assumed the older child was splashing his younger brother. The crying stopped just as the mother was entering the bathroom.
[24] The mother was asked if she was on her phone at all while the children were in the bathtub. She initially denied being on the phone. The police challenged the mother as to not being truthful and confronted her with inconsistencies with prior statements to the police. The police further confronted the mother with evidence which suggested the mother was on Facebook at the relevant time. The police officer bluntly advised the mother he did not believe her.
[25] There was a discussion between the police and the mother as to where the messaging occurred, either in the bedroom or the bathroom. The mother finally blurted "It's a mistake I have to live with the rest…fucking life". The mother admitted she was in her bedroom for the entire 11 minutes while having the Facebook conversation. The mother stated she had no idea it was that long, and that it did not seem to be that long. Following the police statement, the mother was arrested and charged.
2:3 Sentencing Documents
Pre-sentence Report
[26] The mother was born in the City of Greater Sudbury on January 23, 1988. She is currently 31 years of age. She was age 29 at the time of the death of her child. She has no criminal record.
[27] She is the oldest of six (6) children. She resided with her parents until the age of four. Following the intervention of the Children's Aid Society, because of mental health issues of her mother and other matters, she was placed in the care of her maternal grandmother. The grandmother raised her to adulthood.
[28] She is in contact with both biological parents, however, her own mother's mental health issues interfere with a consistent relationship. Her relationship with her father has always been good.
[29] She resided with the father of her deceased son for 3½ years. They separated just before the birth of their second child. There was no abuse or substance abuse in their relationship. Since the separation, she and the father of the two children had an informal co-parenting arrangement. They lived in close physical proximity to each other.
[30] The mother started a new relationship after the separation and found out she was pregnant for a third time shortly after her son passed away.
[31] This relationship ended before the birth of the third child. The third child's father is not involved with his son. The Children's Aid Society apprehended this child at birth. The mother has supervised access to her oldest child at the residence of the father. She also has supervised access to the youngest child, who is in a foster home.
[32] The Children's Aid Society advised the mother has been involved with multiple service providers over a number of years, however, most have closed their files as a result of lack of follow through.
[33] As to education, the mother had to repeat grade 2 but she did graduate from grade 12 after being enrolled in several special education classes. The school classified the mother with a learning disability. Her current grade 12 cannot be used as a foundation for further education. She is now completing up-grading to qualify for attendance at a community college.
[34] The mother receives income support by the Ontario Disability Support Program. She has been in receipt of this income since the age of 18. She qualifies because of her learning disabilities. She has been employed as a cleaner and at a pizza business. She also has an on-line business for health and fitness support that involves two hours per day.
[35] The mother has taken 37 parenting classes from March 2013 to September 2018. In May 2019, the mother commenced a support and counselling program for adults with developmental disabilities. This is a volunteer program and the mother has been attending one per week.
[36] The author of the probation report indicated the mother was polite, cooperative and seemed forthcoming regarding her life circumstances. The author's opinion was the mother was struggling with the loss of her son and the circumstances surrounding his death. She is trying to move forward and is taking advantage of programs and supports within the community.
[37] The report references several concerns with the mother's life as related by the Children's Aid Society who continue to work with her on an ongoing basis.
Risk Assessment Report of Dr. Lina Guzzo dated August 28, 2019
[38] Dr. Lina Guzzo who practices in clinical psychology and correctional/forensic psychology, conducted an assessment for the risk of reoffending.
[39] The following is some of the commentary of Dr. Guzzo:
Ms. W.'s overall risk level in the low (Dr.'s emphasis) range…of risk to reoffend. Ms. W.'s Medium-risk need factors were in the area of Education/Employment. Ms. W. has a long history of academic difficulties, underachievement, learning difficulties, and likely cognitive deficits all of which likely impact her employability to some extent. Ms. W. has also been on ODSP for many years. For the purposes of the current assessment, Ms. W.'s disability is unknown; however, she has not been able to sustain gainful employment. Ms. W. reported that she is taking upgrading course work in order to pursue more course work to move in a positive direction with her education.
Low-risk need factors included the Family/Marital, Alcohol/Drug Problem and Companions subscales. Ms. W. admits to using marijuana and alcohol recreationally. Although her usage level is not considered concerning at this time, she may benefit from learning more adaptive coping strategies for anxiety. Generally, Ms. W. describes her family relationships and friendships as largely positive; however, Ms. W. admitted that many of her partners have been detrimental to her mental health and well-being. Furthermore, Ms. W. identified up to two individuals she considers friends who have past criminal involvement. However, she did indicate that she has a significantly greater number of friends who do not have any criminal history of involvement with the law.
Overall strength areas include that Ms. W. does not have a criminal history, she has good perceived family support as well as good community-based social support, and she has a number of prosocial companions, and very importantly, has prosocial attitudes. Ms. W. does not demonstrate a propensity toward procriminal attitudes. Her attitude toward her crime and sentence has been and continues to be very positive. Ms. W. is engaging in many prosocial community-based programs and activities and is taking necessary steps to mitigate any risk factors. She is also willing to obtain treatment for the sexual assault and related symptoms. She has set goals to return to school and is seeking knowledge and experience outside of school. Moreover, she reportedly is connected well to community-based support services such as counselling, case management, and group therapy. All of these activities further serve to mitigate her risk to reoffend.
The current psychological assessment does indicate that Ms. W. may have limited awareness and insight into her own shortcomings and potential areas of weakness. Given the nature and significance of the current assessment, it is not unusual to present oneself in a positive light. The inconsistencies in Ms. W.'s account of the series of events that led to her son's death, may reflect this tendency to respond in a socially acceptable manner particularly given the situational demands are high. The development of further insight should be a target for intervention through her counselling and group therapy work. (emphasis is mine)
Ms. W. may benefit from a cognitive assessment in order to determine what her strengths and weaknesses are regarding judgment abilities, if this assessment has already not been completed. Ms. W. would benefit from a comprehensive trauma assessment that will inform her treatment for PTSD and/or her trauma related symptoms and/or other anxiety symptoms likely from multiple sources. It was not the scope of the current assessment to determine a diagnosis, given the results of the current assessment, Ms. W. may be experiencing significant sexual disturbance and intrusive thoughts that may be associated with her past sexual assault. She may also be experiencing intrusive thoughts and other PTSD related symptoms that are associated with the series of events leaving and following M.'s death. A comprehensive psychological assessment may benefit Ms. W.'s treatment. The result should be considered for focus in her therapeutic interventions and community-based case management plan moving forward. Ms. W. may also benefit from attending the Triple P program for positive parenting strategies.
[40] In the Personality Assessment Inventory (PAI) section, Dr. Guzzo goes on to say:
The PAI provides a number of validity indices that are designed to provide an assessment of factors that could potentially distort the results of testing. With respect to positive impression management, Ms. W.'s pattern of responses indicate that she has somewhat a tendency to present herself in a favorable light, relatively free of common shortcomings or problems that most individuals will admit to experiencing. Similar scoring individuals are reluctant to acknowledge personal limitations which may cause underlying stress. They may be unaware of problems or other areas where functioning might be less than optimal. Although her level of defensiveness does not render the test results invalid, the personality profile presented was interpreted with caution. Additionally, her personality profile may underrepresent the extent and degree of significant findings. (emphasis is mine) For example, Ms. W. described certain personality characteristics that are often associated with involvement with alcohol or drugs; however, she denied any problems in these areas.
The profile of scores produced for Ms. W. had no significant elevations that would indicate the presence of any clinical psychopathology. However, her pattern of scores resulted in moderate elevations that may reflect sources of difficulty in her daily life. Particularly, Ms. W. reported that she occasionally experiences, to a mild degree, maladaptive behavior patterns aimed at controlling anxiety.
Ms. W.'s profile indicates that she is reasonably self-satisfied with a well-articulated sense of who she is and what her goals are. Ms. W. describes her interpersonal style as friendly and extraverted. She likely enjoys activities that bring her in contact with others and she appears willing to help others in need. She also likely describes herself as a cheerful person with many friends and she would likely be comfortable in most social situations.
[41] With respect to the Paulhus Deception Scales (PDS), Dr. Guzzo states the following:
The PDS is a self-report instrument that identifies individuals who, when responding to assessments and rating scales, distort their responses. This measure is used to identify individuals who might have distorted their responses when completing other clinical and/or personality diagnostic instruments.
Ms. W.'s scores on both the Impression Management and Self-Deception enhancement scales fell within the Extremely High (Dr.'s emphasis) range. Similar scoring individuals tend to attempt to portray themselves in an overly favorable light. (emphasis is mine) Her scores on both subscales fell outside the recommended cut-off score. Therefore, Ms. W. reported an over-abundance of desirable, but uncommon behaviors. Similar scoring individuals often appear overconfident and lack insight into their own personal shortcomings. They may appear sanctimonious about other's problems and they tend to be influenced by situational demands to respond in a socially acceptable manner. Consequently, the entirety of her self-report measures should with this consideration in mind. (emphasis is mine)
[42] Dr. Guzzo continues with "Other Client Issues" and states as follows:
Although this section is not scored and it does not add into the final risk level score, there are some mental health issues that are impacting Ms. W.'s quality of life and may be impacting some other risk factors. Ms. W. indicated that she has a learning disability and may have cognitive deficits, which likely impacted her performance in high school. She also was placed in a workplace skill development program, which is a program usually for youth with some cognitive deficits and/or developmental delay; therefore, she may exhibit greater challenges with respect to understanding what is expected or what is said to her. Furthermore, Ms. W. was the victim of a past sexual assault for which she has not had treatment. Ms. W. has also reported that she was diagnosed with PTSD. These are important factors impacting her life and that will require future assessment and intervention.
[43] In the clinical observations made by Dr. Guzzo, she states as follows:
She denied any suicidal ideation or thoughts related to self-harm. She stated that she could not leave her other children and that she was diligently "working on herself" so that she could remain in her children's lives. She stated that she "can't get over it but can move on." She stated that she believes she is "doing great at moving forward," also asserting, "I'm doing everything possible to better myself and get my chances higher for house arrest." (emphasis is mine) She did not exhibit any symptoms related to a thought disorder or a psychosis.
Developmental Disability Assessment
[44] Dr. Stephen White, a Clinical and Counselling Psychologist, conducted a psychological evaluation to determine whether the mother meets criteria for Developmental Service Ontario classification of Developmental Disability.
[45] The following are excerpts from this report:
This 31-year-old woman was referred for psychological evaluation to determine whether or not she meets criteria for Developmental Service Ontario's (DSO) classification of Developmental Disability. To that end, only information relevant to that referral question will be included herein (i.e. evidence of limitations in adoptive and cognitive functioning both currently and prior to age 18 which are lively to be lifelong in duration). Ms. W. presented for assessment accompanied by her grandmother, who raised her.
Ms. W. graduated from grade 12 in a special needs program at […] Secondary School. She reported that she always had academic difficulties and had to repeat grade two. She transferred to […] Public School for one-on-one support in grade two and subsequently attended a special needs classroom until grade eight. Ms. W. took the transition program at high school for grades nine and ten and then switched to a workplace program for the final two years. A copy of her IEP indicates that she met criteria for developmental disability in high school. She is currently undertaking Education Workplace Training (EWT) to prepare her to take an upgrading course at Cambrian College; her eventual goal is to become a personal trainer.
[46] Under the section "Behavioural Observations", Dr. White states as follows:
Ms. W. came for assessment accompanied by her elderly grandmother, with whom she resided as a child. She was very gentle and attentive to her grandmother and helped her with her winter clothing. Ms. W. was pleasant, spoke slowly and deliberately, and appeared to process information slowly. She often took a very long time to answer on subtests that did not have a time limit.
Ms. W. was forthright about many aspects of her life and teared up during the interview when talking about her deceased son. She stated her preference to refer to him as 'passed away' and that she did not want to discuss the circumstances of his death. Ms. W. expressed the hope that support services may help her to regain custody of her other sons.
Working memory tasks were difficult for Ms. W. and she struggled with arithmetic, stating that she was just starting to learn to do math in her head at school. Her general knowledge fund was limited. Ms. W. enjoyed the visual and hands-on tasks, even though she struggled at times.
Ms. W. worked to the best of her abilities and was able to complete the assessment tasks without requesting a break. Her results are considered a valid representation of her current functioning.
[47] With respect to "Test Results" Dr. White states as follows:
The WAIS-IV is an individually administered test of intelligence comprised of 10 subtests (and 5 optional subtests). The WAIS-IV subtests measure different aspects of intellectual functioning. An individual's performance on these subtests yields a Full Scale IQ (FSIQ), which is an overall measure of intellectual abilities. A General Ability Score can be calculated which, like the FSIQ is an overall measure of intellectual abilities, but is less sensitive to the influence of working memory (i.e. attention) and processing speed – both of which might be compromised by situational or emotional variables. Performance across the WAIS-IV subtests also permits the calculation of Verbal Comprehension, Perceptual Reasoning, Working Memory, and Processing Speed index scores.
As W.'s performance on the WAIS-IV yielded the following results:
Index Score Percentile 95% CI Descriptive Range Verbal Comprehension Index (VCI) 72 3 67-80 Borderline Perceptual Reasoning Index (PRI) 78 7 73-86 Borderline Working Memory Index (WMI) 60 0.4 56-71 Extremely Low Processing Speed Index (PSI) 69 2 64-80 Extremely Low Full Scale IQ (FSIQ) 64 1 60-70 Extremely Low (emphasis mine) General Ability Index (GAI) 72 3 68-78 Borderline As seen above, Ms. W.'s cognitive abilities are significantly delayed across the domains. Working memory presented as her weakest domain. She demonstrated a relative personal strength in her visual-spatial abilities, which still do not approach normative expectations. Ms. W. may benefit somewhat from the use of visual schedules, calendars, and rubrics in her daily activities and educational pursuits.
Performance on individual subtests revealed the following:
Verbal Comprehension Subtests Summary
Subtests Scaled Score Percentile Descriptive Range Similarities 7 16 Low Average Vocabulary 4 2 Borderline Information 4 2 Borderline Perceptual Reasoning Subtests Summary
Subtests Scaled Score Percentile Descriptive Range Block Design 5 5 Borderline Matrix Reasoning 8 25 Average Visual Puzzles 6 9 Below Average Working Memory Subtests Summary
Subtests Scaled Score Percentile Descriptive Range Digit Span 3 1 Extremely Low Arithmetic 3 1 Extremely Low Processing Speed Subtests Summary
Subtest Scaled Score Percentile Descriptive Range Symbol Search 7 16 Low Average Coding 2 0.4 Extremely Low Ms. W.'s performance was variable at the subtest level. Her performance met age expectations in verbal concept formation, visual-spatial problem-solving, and visual perceptual speed. Auditory rote and working memory, mental arithmetic, and visual-motor efficiency are significantly delayed and present as her areas of greatest need.
As per her grandmother's responses combined with the interview process, Ms. W. presents with significant delays in several of the adaptive skill areas (emphasis is mine). With those skills, she was rated with relative strengths in leisure, self-care, and social skills. Ms. W. was rated with significant deficits in functional academics and self-direction, as well as delays in all other measured adaptive skills.
[48] In his "Summary and Recommendations", Dr. White states as follows:
This 31-year-old woman was referred for psychological evaluation to determine whether or not she meets criteria for Developmental Service Ontario's (DSO) classification of Developmental Disability.
Based on the following reviewed, the individual's clinical presentation, and test results, the following apply relative to DSO eligibility criteria:
Cognitive/Intellectual Impairment: Ms. W. presents with an overall score of more than two standard deviations (SDs) below the mean, plus or minus the standard error of measurement on a standardized intelligence test. She therefore meets cognitive criterion #1.
Adaptive Skills: Ms. W. has a score of at least two standard deviations below the mean, plus or minus standard error measurement, in her conceptual skills, as measured on a standardized test of adaptive behaviour.
Age of Onset: Difficulties have been present since birth.
Prognosis: Difficulties are likely to be lifelong in duration.
Conclusion: Ms. W. meets DSO criteria for a classification of Developmental Disability.
Report of the Sudbury Community Service Centre (Inc.)
[49] Kevin Cooper, BSW, RSW., prepared a report as follows:
I am writing to provide you with some collateral information regarding E. We have recently completed a psychosocial assessment which we believe may provide additional insight into her social and psychological history.
E. is a thirty-one year old individual who has been diagnosed with a significant intellectual impairment and Post Traumatic Stress Disorder. Upon reviewing a recent psychological assessment completed by Dr. Stephen White (February, 2019), E.'s full scale intelligence quotient has been determined to be 64. This places E. in what is known as the first percentile of intelligence quotient testing. It also suggests that 99% of the general population would perform better in standard intelligence quotient testing. Dr. Shite cites in his report that E.'s cognitive deficits are "significantly delayed across the domains".
Upon completing a social history with E., it appears that she has had many struggles throughout her life. She reports that she was raised by her parents until age four. At that time her family situation broke down when her mother experienced issues with mental illness and addiction. At age 4, E. was removed from her family home by the Children's Aid Society and placed into foster care. E. remained in foster care for only a few days as, soon after her placement, she developed severe pneumonia. Complications from this pneumonia resulted in a several week stay in hospital to which family reports she almost succumbed to this illness. Upon recovering, E. was released from hospital to the care of her grandmother.
From age four to twenty, E. lived with her grandmother. Her grandmother reports that E. struggled both socially and academically throughout her childhood and adolescence. As a result of her cognitive deficits, E. was placed in remedial or modified school programs from grade two until she graduated through grade twelve at age 21. Over the past several years, E. states that she has struggled to find employment. She advises that she has had several very brief part-time fast food and cleaning positions but nothing that has lasted for any significant amount of time. Recently, E. has started attending the […] Centre to improve her academic skills. She currently attends classes to improve her literacy and math skills in hopes of qualifying for a pre-collegial upgrading program at Cambrian College. Although E. has received a high school graduation diploma from her adaptive learning program at […] Secondary, she advises that her academic skill level is currently below the grade nine equivalency threshold required to enter into the Cambrian College upgrading program. E. hopes to continue with her current scholastic upgrading program and reapply to Cambrian College in the next several months.
Over the past few months, E. has also taken steps to obtain support for her disability and her Post Traumatic Stress Disorder. Since her son's passing, E. has been attending trauma counselling with the Violence Intervention and Prevention Program at Health Sciences North, she has been receiving psychiatric support from Psychiatrist, Dr. Veluri, and she has recently been referred to the Health Sciences North Mood and Anxiety Program. It is anticipated that she will start individual counselling in the Mood and Anxiety Program shortly and follow up with additional group counselling in the program for an additional six to eight weeks.
In January of 2019, E. was also referred to Developmental Services Ontario. As a result of this referral, E. now has been assigned an Adult Protective Support Worker who will be monitoring and providing E. with weekly case management, appointment coordination and emotional support. Over the next few weeks this worker will continue to assess E.'s skills and provide further suggestions regarding any additional community programming that may be of benefit to her.
Report of Health Sciences North, Sudbury Mental Health and Addictions Centre, Mood and Anxiety Program
[50] This report was prepared by Dr. Daniel Molke, PhD, OT. Dr. Molke stated the following:
Ms. E.W. was referred to the Mood and Anxiety Program (MAP) on October 19, 2018. She attended a MAP orientation session on February 25, 2019 and a MAP intake assessment with the undersigned's student, Bryan Dalla Rosa, on March 21, 2019.
During this intake assessment, Ms. W. reported an ongoing experience of anxiety related to a number of stressors in her life. In particular, she reported having difficulty adjusting to the death of her 18 month old son. She also reported struggling with distress associated with court proceedings related to this death. With a referral from Ms. W.'s physician, we arranged a consultation with one of MAP's consulting psychiatrists prior to their placement in a treatment group.
The MAP Seeking Safety group can serve to provide support for individuals who have experienced traumatic events and are having difficulty coping. This group can help individuals develop skills in managing stress and anxiety related to trauma. In many cases, this group is also used to prepare individuals for more focused PTSD work with MAP, or other community agencies.
Ms. W. was placed in the next available MAP Seeking Safety group scheduled to start on September 17, 2019 and scheduled to end on December 3, 2019. The group meets once a week for two hours during this period. We cannot comment on the quality, or frequency, of the client's participation in treatment because this client's treatment has not yet started. After this treatment is complete, Ms. W. may benefit from individualized treatment and she seems to be eligible for treatment through Developmental Services Ontario.
Other Reports
[51] There is a report from the Sudbury Vocational Resource Centre outlining the mother's involvement in educational up-grading training.
[52] There is a report from the Pregnancy Care Centre & Infant Food Bank, indicating the mother's involvement in 37 parenting classes, involving a wide range of infant and toddler care.
[53] There is a further report from the Violence Intervention and Prevention Program of Health Sciences North. This deals with the mother's counselling attendances for PTSD and grief. There are also character letters.
3: RELEVANT CRIMINAL CODE PROVISIONS
[54] The starting point of the analysis of an appropriate sentence is a consideration of section 718 and 742 of the Criminal Code of Canada.
[55] Section 718 of the Criminal Code of Canada states as follows:
Purpose
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (emphasis is mine)
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[56] Section 742.1 of the Criminal Code of Canada states as follows:
Imposing of conditional sentence
If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
[57] Section 732 of the Criminal Code of Canada provides for the following:
Intermittent sentence
(1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at such times as are specified in the order; and
(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.
4: DISCUSSION AND ANALYSIS
[58] The defence requests a period of imprisonment to be served in the community, which is a conditional sentence, or more popularly known as 'house arrest'. Under the terms and conditions Ms. W. would be confined to her residence with a number of exceptions. These would be employment, attending school, medical emergencies, medical emergencies for her grandmother, medical or dental appointments, treatment and counselling sessions, scheduled visits with her children and walking the dog every evening between 7:00 p.m. and 8:00 p.m. A further exception would be every Saturday between 1:00 p.m. and 5:00 p.m. in order to acquire the necessities of life.
4:1 R. v. Proulx 2000 SCC 5
[59] This decision of the Supreme Court of Canada continues to be the leading jurisprudence for trial judges in considering a decision as to a conditional sentence versus actual jail. Understanding this case provides a thorough review as to how a trial judge approaches this dilemma. I will extract commentary from the headnote of the case and parts of the decision itself.
[60] Understanding the factual circumstances is important. After a night of partying involving the consumption of alcohol, the accused decided to drive his friends home. He drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signaling, despite steady oncoming traffic and slippery roads. As the accused was trying to pass another vehicle, he drove his car into the oncoming lane of traffic and crashed into another vehicle. The driver of the vehicle was seriously injured. The accident also claimed the life of a passenger in the accused's vehicle. The accused was in a near-death coma for some time, but ultimately recovered from his injuries. The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. The trial judge sentenced him to eighteen months of incarceration. The sentencing judge concluded that a conditional sentence which would allow the accused to serve the sentence in the community, would not be appropriate because it would be inconsistent with the objectives of denunciation and general deterrence. (emphasis is mine).
[61] The Manitoba Court of Appeal allowed the defence appeal and substituted a conditional sentence for a jail term.
[62] The Attorney General of Manitoba appealed that decision to the Supreme Court of Canada, which reversed the Manitoba Court of Appeal. The trial court's initial decision was restored.
[63] The New Sentencing Reform was designed to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.
[64] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence:
(1) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) The court must impose a term of imprisonment of less than two years;
(3) The safety of the community would not be endangered by the offender serving the sentence in the community; and
(4) A conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in ss 718 to 718.2.
[65] A conditional sentence can provide significant denunciation and deterrence. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
[66] Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, the Court of Appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[67] The sentencing judge considered that a term of imprisonment of 18 months was appropriate and declined to permit the accused to serve his term in the community. The judge did find that the accused would not endanger the safety of the community by servicing a conditional sentence. Such a sentence would not be in conformity with the objectives of section 718. Incarceration was necessary to send a strong message to denounce the accused's conduct and to deter others from engaging in similar conduct.
[68] Chief Justice Lamer on behalf of the court stated:
Denunciation is the communication of society's condemnation of the offender's conduct. In M. (C.A.), supra, at para. 81, I wrote:
In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within out substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particulars types of crime (emphasis is mine), and the only way in which the courts can show this is by the sentences they pass".
Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. (emphasis is mine). That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.
The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. (emphasis is mine)
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. (emphasis is mine) This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.
Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329, "[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3.
4:2 R. v. Matthews, [1998] O.J. No. 626
[69] The centerpiece of the defence approach in submitting a four-month conditional sentence is based on this decision.
[70] This was an appeal by the parents of a 7-month-old child, from convictions and sentences for criminal negligence causing death and child abandonment as a result of the death of their child who was left alone in the bathtub.
[71] The mother was charged with child abandonment as a result of her failure to take appropriate remedial steps after the father left the child alone.
[72] The trial judge found that the father left the child unattended while he watched television in the downstairs part of the house. The father was sentenced to 60 days imprisonment to be served intermittently. The mother appealed only her conviction for child abandonment. It is not known what the sentence was at trial for the mother.
[73] The father's appeal on conviction was dismissed. The mother's appeal from conviction was allowed. The father's appeal from the 60-day intermittent jail sentence was allowed and substituted with a 4-month conditional sentence. At the time of the original sentencing the new conditional sentence or house arrest provisions of the Criminal Code were not yet in force. They were in force by the time of the appeal.
[74] This case is of questionable value as to a precedent for a fit and appropriate sentence in the case at bar. There are several reasons for this.
[75] The Court of Appeal of Ontario, in any given year, conducts a very high volume of appeal cases from trial divisions in the province. Over the years, a practice has developed that decisions rendered by the court fall into two (2) different categories. The vast majority of the courts' decisions involve articulate and detailed reasons. From one perspective, the reasons are more important than the conclusions. It is the reasoning that provides guidance and framework to trial judges.
[76] The second categories of cases are referred to as endorsements. Endorsements by their nature are quite short and usually do not contain detailed reasons. In an endorsement there is no expectation of detailed reasons. In endorsement decisions, it is often particularly difficult to determine its persuasive value for trial judges.
[77] This was an 8-paragraph endorsement. Of those eight paragraphs only two referred to the issue of sentence, in particular, conditional sentence. It is obvious the engine behind the appeal was the issue of conviction, not sentence. So little time was spent by Crown counsel and defence counsel on the issue of sentence, that they did not even have the terms and conditions of the proposed conditional sentence. Therefore, the court was not aware of them. The panel indicated "If the conditions cannot be agreed upon, written submissions may be made".
[78] In the Supreme Court of Canada decision of Proulx strong direction is given to trial judges to review carefully the terms and conditions of any proposed conditional sentence to ensure that they not only meet the rehabilitative and restorative aspects of sentence, but also the denunciation and general deterrence aspects. This was not done in this case because the terms and conditions were not known to the panel.
[79] Of critical importance, it would appear that the issue of sentence at the appeal hearing was essentially a 'joint submission'. The court states: "Crown counsel fairly and properly concedes that a conditional sentence would not be inappropriate in all of the circumstances." I infer from this paragraph that Crown and defence counsel had already agreed on a conditional sentence as the appropriate sentence at the appeal. I further infer that the issue of sentence was not a matter of argument before the court.
[80] The policy on joint submissions is they have a high threshold to be rejected by any court. In this situation before me, I am not dealing with a joint submission sentence; I am dealing with an open sentence wherein there is a genuine dispute between the Crown and defence as to what a fit sentence should look like. That adversarial position on sentence did not take place before the Appeal Court.
[81] Proulx makes it clear a sentencing judge must have thorough information on the circumstances of the offender. This is required in order to properly understand not only the rehabilitative and restorative aspects of a given sentence, but to understand the denunciatory and deterrence aspects of a sentence. I know absolutely nothing about the father's personal circumstances. nor do I know anything about the mother's personal circumstances. I do not even know the mother's sentence following the trial.
[82] In addition to not knowing the circumstances of the offender(s), I have inadequate information as to the circumstances surrounding the death of the child in the bathtub. There is only a skeletal description of what happened. I have no idea why the father left the bathroom and went downstairs and spent some two and a half minutes watching television. I have no idea as to where the mother was at this time, for her to have been convicted of child abandonment at the trial. With lack of details, it is incongruent to me that the father would simply leave the bathroom to go downstairs in the house to watch television! Obviously, there are material details I do not know. What I do know is that the trial judge appeared to have made a finding of fact that the father was watching television for at least two and a half minutes. The Court of Appeal points out that the father's statements and the expert medical evidence provide ample support for that finding. I know none of the details of the father's statements nor do I know anything about the expert evidence.
[83] Matthews took place at a time when the new conditional sentence provisions were in the infancy stage of judicial interpretation. The first case – Proulx – from the Supreme Court of Canada did not come out until the year 2000.
[84] Another concern I have is this is a 21-year-old case. As a general rule, the aging of a precedent does not necessarily diminish its value. There has to be something other than the age of a case. We live in a very different world in 2019 compared to 1998. Our world is dominated by the prominence of social media and obsession with various devices. I consider the social media context of this offence to be a very important aspect of the sentence. Social media barely existed in 1998. It certainly did not have any prominent impact on societal functioning. Facebook itself did not start until 2004.
Further cases judicially considered: R. v. Brooks-Bailey, [2008] A.J. No. 529; R. v. Pullman, 2012 BCPC 394; R. v. Maloney, [2012] N.S.J. No. 373; R. v. J.H.; R. v. S.J., 2015 ONCA 97; R. v. Smith, 2015 ONSC 4304; R. v. Thurairajah, 2008 ONCA 91.
4:3 Risk of Reoffence
[85] I am satisfied the mother would not endanger the safety of the community if she were to serve a prison sentence in the community. Dr. Guzzo indicates the risk of reoffence is low. This is not simply based on clinical testing, but also sources of information from others, in particular, the history of the mother. She has no criminal record up to the age of 29. She has lived a pro-social history. She does not appear to have criminal related values. Her primary parent is her grandmother who likewise has a pro-social history. The grandmother has given her stability and pro-social values. She is close to her father who likewise appears to have a pro-social history. Many of her female friends have pro-social values.
[86] A number of service providers are involved in her life to deal with an array of personal issues. This structure helps to stabilize her to prevent anti-social problems.
4:4 Is the imposition of a conditional sentence consistent with the fundamental purpose and principles of sentencing as set out in section 718 of the Criminal Code
[87] I am satisfied the imposition of a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing. I am satisfied the objectives of denunciation and general deterrence require an actual incarceration sentence as part of the consequences. Any other disposition would fail to reflect those objectives and would be disproportionate both to the gravity of the offence and the mother's degree of responsibility.
[88] Under section 718.01 when a court imposes a sentence for an offence that involved the abuse of persons under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Though rehabilitation is still important, an actual jail sentence is required to meet the objectives of denunciation and deterrence. This goes beyond the abuse of the child. The mother's conduct caused the death of the child. It is deemed to be an aggravating circumstance where a child under the age of 18 is abused. It is also an aggravating circumstance that the offence had a significant impact on the victim, considering the child's age and personal circumstances. It is further an aggravating circumstance that the mother abused a position of trust or authority in relation to the child.
[89] An 18-month-old child is significantly vulnerable and would have no knowledge of risks or danger. This child was completely dependent on the mother to be protected. Such a breach wherein the child paid the ultimate price of the loss of his life, requires an actual jail sentence as part of the overall sentence. In the circumstances of this case, this community would be deeply troubled with house arrest.
4:5 Mitigating Circumstances
[90] The plea of guilt is a mitigating circumstance. The offence date is September 13, 2017. No charge was laid until mid-June 2018. A date for preliminary hearing was set in October 2018. The plea of guilt came forth on the first day of the preliminary hearing in May 2019.
[91] The relatively positive pre-sentence report is a mitigating circumstance. The mother's condition of cognitive impairment and developmental delays are mitigating circumstances.
4:6 Relationship between the mother's deficits and the offence
[92] This is not a case of so-called 'diminished responsibility'. The mother has been diagnosed with a developmental delay or a learning disability. She also has significant cognitive impairment. I want to make it clear, there is no nexus between these deficits and the offence itself.
[93] Greatly lowered cognitive intelligence does not mean one does not understand the basic fundamentals of taking care of young children. At the time of the incident, the mother had many parenting classes that focused on infant and toddler care. There is nothing to suggest the mother's care of the two children was deficient. I infer from the historical information, she has met minimum social and legal standards of parenting. The Children's Aid Society had been involved in the family but in a minimally intrusive way.
[94] Despite her lack of cognitive intelligence, this did not detract from her appreciation of the risk to the children in the bathtub. She had care and control over these children since birth. She had a co-parenting arrangement with the father. There is no evidence that the father was anything but a reasonably competent parent.
[95] I would estimate the mother put these two children, since birth in a bathtub in excess of 500 times.
[96] The mother would clearly have known the risk of leaving either child, in particular the younger child, in the bathtub unsupervised.
4:7 Remorse and Responsibility
[97] I have no doubt the mother is remorseful for the death of her son. It has devastated her. It never leaves her mind. It has impacted her very essence as a person. She strongly wishes she could trade places with her son and she is the one that would be deceased and he would be alive.
[98] However, I do not believe she has taken full responsibility for her actions that led to the death of her son. It took her nine (9) months to admit she spent 11 minutes outside of the bathroom involved in a Facebook dialogue and she only did so when faced with the reality that she could not deny this fact.
[99] Her initial response at the hospital to the police was she momentarily left the bathroom to obtain another towel. She referred to her absence as either a 'split minute' or 'a minute'. She deceived the police by omission. She projected responsibility for the death of the child on the doctors in the Emergency Department at Health Sciences North. She used profanity in describing the doctors. To aggravate the situation, she called out their competency and indicated had this happened in Toronto, the medical personnel would have revived the child.
[100] Though her conduct at the hospital was disturbing, I can understand the shock of the moment may have led her to make inappropriate comments. However, what she did next is particularly disturbing. She endured several weeks of inuendo and gossip. She was being referred to in the community as a child killer. So she made a decision to conduct a Facebook video and then post it to Facebook. It was obvious she desired widespread publication. She wanted to set the record straight as to the circumstances surrounding the child's death.
[101] The most dominant feature of the 32-minute video is she made no mention of the 11-minute Facebook chat with a friend. This was a significant omission for somebody who is trying to set the record straight as to what happened. She continued her rant against the Sudbury doctors for the failure to revive the child. She makes matters worse by blaming the older child for the death of the younger child. Rather than focusing on her own actions, she was obsessed with what the older child may have done. She continued to say she was only gone from the bathroom for a minute. This video took place five (5) weeks after the death when she had considerable time to reflect on what happened. She continued to perpetrate a false story.
[102] Some nine (9) months after the death, the police called her in to give a statement. At that time, unbeknownst to her, the police now had the details of the Facebook chat. They opened up by asking she be honest and candid as to what happened. She was not. She continued with her false story. The dam finally broke when the police officer bluntly told her he did not believe her.
[103] Her eventual plea of guilt is an acceptance of the legal realities of her circumstances, but such does not necessarily mean an acceptance of the responsibility for her actions.
[104] The psychological report of Dr. Guzzo has interesting commentary on the issue of responsibility. There are two aspects to this. There is a strong suggestion in the report she is engaged in image management. She is presenting herself in the best possible light because of her strong motivation to acquire a house arrest sentence.
[105] The second aspect is the test scores demonstrate she does not appreciate her weaknesses and failings. She has a resistance to this.
[106] As part of this image management, the Crown points out that she did not commence serious programming until the latter part of 2018 and into 2019. The Crown expresses skepticism as to her accepting genuine responsibility. The Crown points out her primary motivation is to obtain a house arrest sentence, throwing into question how genuinely responsible she is for her actions.
[107] In fairness to the mother, based on my experience and observations of hundreds of sentencings, many if not most accused persons attempt to manage the court's impression of them during the sentencing process. I believe this is normal, instinctive behaviour when one faces the real prospect of going to jail. This makes the sentencing process more challenging in trying to sort out acceptance of responsibility and to what extent there is genuine motivation for treatment services. The real work begins after someone is sentenced. That is why part of the sentence in this case has to be a lengthy and structured probation order.
4:8 Distracted Parenting and Social Media
[108] We live in a social media obsessed world. This has led to widespread public and private commentary as to the merits of social media and, in particular its deficits. One deficit is the concept of distraction. We hear much about distracted driving, a term that has only come into use in the last several years. Then we have distracted workplaces.
[109] This is a case of distracted parenting. There was no urgency or necessity to the Facebook chat. Given the fact a young child is left unsupervised in a bathtub, this 11-minute conversation can only be described as mindless.
[110] When the police pointed out to the mother the Facebook conversation was 11-minutes long, she seemed very surprised. She stated she had no idea it was that long.
[111] This is the danger of social media. It can be alluring; powerfully and mysteriously attractive and seductive. A person can get lost in a communication. There was a clock on the screen of the mother's phone. Each message had a time indicator. In the face of that, she had no idea how much time had elapsed.
[112] It is precisely this type of conduct the court is focused on as it relates to general deterrence. The danger of this obsession is not restricted to low intelligent people, such as this mother. It can happen to anyone, including those with much education or high intelligence.
[113] The court must send a clear message to the parents of young vulnerable children; there will be serious consequences to tragedies caused by distracted parenting.
4:9 Victim Impact Statement
[114] The father prepared a victim impact statement, on behalf of himself and his older son. Because he was too distraught to read the statement in court, the statement was read to the court by a friend.
[115] He details the devasting, emotional impact on his life of the loss of his son. He also relates the emotional impact of the loss on the older child, of whom he now has legal custody. He described the child's night terrors of waking up and crying out the name of his deceased brother. This went on for several months.
[116] He closes with a heart wrenching letter written to his deceased son.
5: SENTENCE
[117] For the reasons provided, I have concluded actual incarceration is required for a fit sentence. However, there are important aspects of rehabilitation which can be addressed through the structure of a probation order.
[118] The mother is extensively involved in programs and treatment during the business week. If she serves a jail sentence which exceeds three (3) months, she will have to discontinue these programs. All of them would be available once she is released.
[119] However, there is value in allowing the mother to continue in these programs, without disruption. Because of her developmental delay and low cognitive intelligence, the learning process would proceed at a slower pace. Restarting programs for her in her circumstances, assuming an incarceration sentence exceeding 90 days could cause a loss of momentum and progress.
[120] To achieve balance between denunciation and general deterrence and rehabilitation, I have determined the appropriate sentence is 90 days jail to be served intermittently. There will also be a 24-month probation order.
[121] You will register with the custodial facility today. You will be processed and released this afternoon. You are directed to return to the custodial facility on Saturday, November 2, 2019 at 9:00 a.m. You will be released on Sunday, November 3, 2019 at 7:00 p.m. You will continue to attend the custodial facility each Saturday at 9:00 a.m. and will be released each Sunday at 7:00 p.m., until the sentence is completed. When you attend the custodial facility on each Saturday, it is standard procedure that you must not have an odour of alcohol on your breath or on your person. There will be a probation order to cover this aspect of the custodial sentence.
[122] You will be placed on probation for a period of 24 months. The terms and conditions will be directed in open court. The most important part of the probation order is assessment, counselling, programming and treatment. Access to your two surviving children shall be supervised by a responsible adult, as determined by the probation officer. You are not to be in the presence of other children under the age of 8 without the presence of a responsible adult.
[123] There will be a DNA order.
Released: October 30, 2019
Signed: Justice John D. Keast