ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50000363
DATE: 20120725

BETWEEN:

HER MAJESTY THE QUEEN – and – T.T. Accused

Danielle Scott, for Her Majesty The Queen
Adam Forbes, for the Accused

HEARD: July 19, 2012

DUNNET J.: (Orally)

REASONS FOR SENTENCE

[ 1 ] T.T. has pled guilty to charges of failing to provide the necessaries of life to three of her four children.

Circumstances of the Offences

[ 2 ] Ms. T.T. is the biological mother of I.N., born […], 2005, T.N., born […], 2007 and A.A.T., born […], 2009.

[ 3 ] In June 2008, Ms. T.T. adopted a raw vegan diet for herself and her children, a diet that mandated not consuming animal or animal by-products, including eggs, milk and cheese. She fed her children only raw vegetables, sprouted rice, fruit, nuts, coconut water, herbal tonics and supplements. Their feeding was highly regimented and portion size was strictly controlled by Ms. T.T.. She did not seek medical advice on the appropriateness of the raw vegan diet for infants and small children. Further, the children did not have a family doctor, nor did they receive immunizations.

[ 4 ] In June 2010, Ms. T.T. sought medical assistance for the purpose of completing government dietary forms in support of her application for additional social assistance benefits. She was referred to a paediatrician but refused to attend. The Children’s Aid Society became involved and the children were admitted to the Hospital for Sick Children in Toronto with diagnoses of severe malnutrition, osteopenia and rickets.

[ 5 ] I.N. and T.N. were discharged from the hospital’s “Failure to Thrive Clinic” in June 2011 and A.A.T. was discharged in September 2011. The children were placed by the Children’s Aid Society in the care of Ms. T.T.’s mother. Ms. T.T. gave birth to another child in […] 2011 and that child was also placed in the care of Ms. T.T.’s mother. Supervised child visits are conducted at the Society’s access centre.

Circumstances of the Offender

[ 6 ] Ms. T.T. is twenty-nine years old. She has no criminal record. She completed high school and has been receiving social assistance since the age of eighteen. In 2011, she started her own business making body lotions and attended flea markets to sell her product. In July 2012, she commenced an educational program to qualify as a medical office assistant.

[ 7 ] Ms. T.T.’s two older children were born during her first marriage. After the termination of that relationship, she became involved with T.W., who was living with Ms. T.T. at the time of these offences. After they were arrested, the relationship ended. Mr. T.W. has pled guilty to these offences and has been sentenced.

[ 8 ] Since her arrest, Ms. T.T. has undertaken rehabilitative efforts offered by public health authorities. From July 2010 to March 2011, she attended a family education and support program at The Macaulay Child Development Centre. The program provided consultation with a social worker regarding parent education, child development information and emotional support. She also participated in the “Healthy Babies Healthy Children” program, which involved regular visits by a public health nurse. She attended sessions offered by the “Incredible Years” parent program and since July 2010, she has been attending a dietary counselling program.

[ 9 ] In May 2012, Ms. T.T. was referred for psychological evaluation to Dr. Giorgio Ilaqua to assess the potential risk she poses to society, the probability of involvement in future criminal activity, the need and motivation for rehabilitation and to determine whether she presented with current emotional issues that need to be addressed therapeutically.

[ 10 ] In his report of June 8, 2012, Dr. Ilaqua stated that Ms. T.T. advised him that she had a strained relationship with her mother who “emotionally abused” her and “put her down”. He reported that she continues to have ongoing issues with her mother and is not close with most of her siblings.

[ 11 ] Dr. Ilaqua reported that Ms. T.T. had a history of maladaptive eating behaviours. She told him that she “doesn’t know how to feed herself”.

[ 12 ] Based upon his clinical interview and psychometric testing, Dr. Ilaqua found that compared to her peers, Ms. T.T. possessed below average cognitive capabilities. She was under high levels of stress that caused her significant anxiety. She had difficulties related to social interactions. She possessed weak skills when dealing with social stressors and she was unlikely to be able to solve these problems effectively.

[ 13 ] He concluded that Ms. T.T. presented with a low risk for future involvement in criminal activity. However, her risk factors were largely dynamic and amenable to change. Negative factors included her lack of insight, esteem issues, financial difficulties and dysfunctional attachment style. Positive factors included her desire for treatment, lack of substance related issues, acknowledgement of wrongdoing and acceptance of Children’s Aid Society regulations.

[ 14 ] Dr. Ilaqua made the following clinical and therapeutic recommendations: individual psychotherapy, parenting skills training, regular consultation with a family doctor and dietician, anger management therapy and social skills training, participation in volunteer or community programs, continued supervision by the Children’s Aid Society during visits with her children and educational pursuits with the goal of becoming financially independent.

The Position of the Parties

[ 15 ] The Crown seeks a six month custodial sentence followed by three years’ probation. The position of the Crown is that these are serious offences involving life-threatening injuries to young children whose mother neglected to feed them appropriately and failed to seek medical attention when it was clear that her children were visibly malnourished.

[ 16 ] The Crown submits that Ms. T.T. was not forthright about whether Mr. T.W. was the biological father of A.A.T., or about her understanding of the consequences of her failure to feed her children properly, or about her own dietary nutrition.

[ 17 ] The Crown contends that a conditional sentence would not be appropriate, because it would fail to address the principles of denunciation and deterrence and the fact that the abuse was inflicted on children by a person in a position of trust.

[ 18 ] The defence seeks a suspended sentence and three year probationary period. In the alternative, should a custodial sentence be considered by the court, the defence submits that a conditional sentence order would address the principles of denunciation and deterrence in this case.

Aggravating Factors

[ 19 ] Ms. T.T. fed her three young children a highly regimented raw vegan diet. Portion size was strictly controlled. For example, breakfast consisted of herbal tea and a fruit “smoothie”. The morning snack was sunflower seeds and raisins. Lunch was two or three tablespoons of fruit salad. The afternoon snack was coconut water, a vitamin supplement and a handful of vegetable chips. Dinner consisted of a small bowl of avocado, beans, vegetables and coconut water.

[ 20 ] The hospital photographs entered into evidence demonstrate that four year old I.N., three year old T.N. and one year old A.A.T. were severely malnourished. As their mother and primary caregiver, Ms. T.T. abused her position of trust.

[ 21 ] The Agreed Statement of Facts in support of her guilty plea stated that Mr. T.W. was not the biological father of the complainants. However, Ms. T.T. told the probation officer who prepared the Pre-Sentence Report and Dr. Ilaqua that Mr. T.W. was the father of A.A.T..

[ 22 ] Contrary to the report of the public health nurse to the probation officer that Ms. T.T. had transitioned to healthy eating, according to Canada’s Health Food Guide, Dr. Ilaqua reported that Ms. T.T. continued to follow the raw vegan diet.

[ 23 ] The Agreed Statement of Facts stated that Mr. T.W. became concerned about the children’s weight loss and tried to have Ms. T.T. feed them more food. However, Ms. T.T. told Dr. Ilaqua that Mr. T.W. was “controlling” and encouraged her atypical eating habits.

[ 24 ] Ms. T.T. told the probation officer that she “needs to be reunited with [her children] so they can be a family again, and she is now ready to care for them”. In contrast, she told Dr. Ilaqua that she did not feel confident in her ability to provide for herself the necessary amount of nutrition. In my opinion, if she is not in a position to feed herself properly, she cannot be expected to have the confidence or ability to feed her children the appropriate amount of nutrition.

Mitigating Factors

[ 25 ] Ms. T.T. is a twenty-nine year old first offender. By her plea, she has exhibited remorse. She has complied with her conditions of bail and she has attended programs on parenting and nutrition.

The Law

[ 26 ] In R. v. M.M., [1998] O.J. No. 3032 (Ont. C.J. Gen. Div.), the accused pled guilty to failing to provide the necessaries of life to her child. The court found that she had limited intellectual ability, a problem with alcohol and she was in an abusive relationship. A suspended sentence was imposed and the accused was put on probation.

[ 27 ] In R. v. Beaudry, 2006 ONCJ 577, the accused pled guilty to failing to provide the necessaries of life to her baby. She was in an abusive relationship and that led to a delay in getting medical help. The court accepted the joint submission for a nine month conditional sentence and probation for two years.

[ 28 ] In R. v. D.E., [2005] O.J. No. 2589 (S.C.), the parents of two young children were sentenced to nine months in custody and twelve months’ probation. The older child suffered from significant developmental delay and the condition of the younger child was life-threatening. The court found that the parents knew that their children’s needs were not being met and chose to engage in activities for leisure, or otherwise, over their duty to care for their children.

[ 29 ] The court held at para. 20:

When one looks at the period of time over which the events occurred, the situation in which these young children found themselves, which has been described as horrific, when one considers the harm done to the children, and the degree of responsibility for each of these two accused, I can only conclude that a conditional sentence would not adequately address the community's legitimate condemnation of their conduct. Members of the community expect and are entitled to expect that those living in their midst will at least provide the basic necessities of life to their children and not cause them harm.

Disposition

[ 30 ] These offences involved a breach of trust and the abuse of children under the age of eighteen years. The Criminal Code now specifically provides that where the victim of abuse is a child under the age of eighteen years, the primary objectives of sentencing are deterrence and denunciation. The Criminal Code also provides that the abuse of a child under eighteen years and the abuse of trust or authority in relation to the victim are aggravating factors:

718.01 When a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

shall be deemed to be aggravating circumstances.

[ 31 ] Ms. T.T. is a relatively youthful first offender. She has accepted responsibility for her involvement in these offences and she has complied with her conditions of bail which have placed severe restrictions on her conduct, especially with respect to access to her children. She has undertaken efforts to educate and rehabilitate herself and she has undertaken counselling on parenting and nutrition. Nonetheless. Further counselling needs to be undertaken, given the concerns that she has expressed to Dr. Ilaqua.

[ 32 ] For his role in these offences, Mr. T.W. received a conditional discharge and probation for 12 months. Although he was acting in loco parentis to the children, he was working and he was not the primary caregiver. Further, he adopted the raw vegan diet while living with Ms. T.T.. Mr. T.W. was sentenced on the basis that he was not the biological father of A.A.T. and at the present time, the paternity of the child remains unknown. In my view, this issue is not relevant to Ms. T.T.’s responsibility for these crimes.

[ 33 ] This is not a case where Ms. T.T. chose to engage in her own activities over her duty to care for her children. To gain knowledge about the diet she was feeding her children, she read books and did on-line research, and numerous books on vegetarianism, vegan and raw food diets were found in her home. She told the probation officer that she had not realized the severity of the detriment to her children. Fortunately, there is no evidence of any long-term health consequences to the children.

[ 34 ] The principles of denunciation and deterrence warrant a period of imprisonment for these offences. I am of the view that the safety of the community would not be endangered by Ms. T.T. serving her sentence in the community and that a conditional sentence in this case would be consistent with the fundamental purpose and principles of sentencing.

[ 35 ] Ms. T.T., please stand. For these offences, I impose a sentence of imprisonment for six months. I order that the sentence be served in the community, subject to the following conditions: You will

1. keep the peace and be of good behaviour;

2. appear before the Court when required to do so by the Court;

3. report within two working days to a supervisor and thereafter, when required by the supervisor and in the manner directed by the supervisor;

4. remain within the province of Ontario, unless written permission to go outside the Province is obtained from the court or the supervisor;

5. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation;

6. attend and comply with counselling for diet, nutrition and psychological treatment recommended to you by your supervisor and the Children's Aid Society and sign any releases necessary for monitoring your counselling by the supervisor and the Children's Aid Society;

7. make reasonable efforts to find and maintain suitable full-time employment, or pursue your education, and provide proof of those efforts to the supervisor;

8. remain within your place of residence at all times, except to attend school or work, or for medical emergencies, or when exercising supervised access to your children, or when attending for treatment or counselling as directed by the supervisor and the Children’s Aid Society, or for the purpose of engaging in shopping for food, medicine or other necessities for one continuous period of up to but not exceeding four hours on no more than one occasion in any seven-day period, unless otherwise specified in writing by the supervisor, or for such other purposes and on such written terms and conditions as the supervisor may permit;

9. not to have access to your children except through the Children's Aid Society; and

10. not to have a direct or supervisory role to any child under the age of sixteen, except under the direction of the Children's Aid Society.

[ 36 ] In addition, you will be placed on probation for a period of three years. The terms of the probation will be the same as the terms of the conditional sentence order, with the exception of condition 8 relating to house arrest, which will not apply.

[ 37 ] In the circumstances of this case, I decline to make an order under s. 487.051(3).

DUNNET J.

Released: July 25, 2012