NEUTRAL CITATION NO. 1126
FILE NO: CR-13-115
superior COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DIANA DAVY
JAMES WILFRED DAVY
R E A S O N S F O R S E N T E N C E
GIVEN BY THE HONOURABLE MR. JUSTICE DiTOMASO
on JANUARY 16, 2015 at BARRIE, Ontario
Appearances:
C. Staats Counsel for the Provincial Crown
M. Malick Counsel for Diana Davy
E. Ehlers Counsel for James Davy
superior COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
No Witness Examinations
Transcript Ordered....................... January 16, 2015
Transcript Completed..................... February 11, 2015
Ordering Party Notified.................. February 23, 2015
FRIDAY, JANUARY 16, 2015
NEUTRAL CITATION NO. 1126
R E A S O N S F O R S E N T E N C E
DiTOMASO, J.(Orally):
OVERVIEW
This case is about the failure of Diana Jean Davy and her husband, James Wilfred Davy, to provide the necessaries of life to Viola Simonds, the mother of Ms. Davy. Their failure resulted in neglect and abuse of Ms. Simonds.
After a trial by judge and jury, on October 22, 2014, Ms. Davy and Mr. Davy were each found guilty of two offences pursuant to s. 215(2)(b) of the Criminal Code of Canada as follows:
Between the 12th day of September, 2008 and the 26th day of May 2011 at the City of Orillia, they did fail without lawful excuse, to provide the necessaries of life to Viola Simonds, a person under their charge who was unable by reason of illness or mental disorder to withdraw herself from such charge and to provide herself with such necessaries of life, and they did thereby cause or were likely to cause permanent injury to her health, and,
Between the 12th day of September, 2008 and the 26th day of May, 2011 at the City of Orillia, they did fail without lawful excuse to provide the necessaries of life to Viola Simonds, a person under their charge, who was unable, by the reason of illness or mental disorder, to withdraw herself from such charge and to provide herself with such necessaries of life and did thereby endanger her life.
THE FACTS
The Circumstance of the Offences
Without dispute, the circumstances in this case are tragic and absolutely deplorable.
At the relevant time, Viola Simonds was living with her daughter Ms. Davy, and Diana's husband, Mr. Davy at 12 Lankin Boulevard, unit 19 and at other addresses before that in the City of Orillia. Viola Simonds' physical and mental health had declined over the years. She suffered from severe dementia, from other serious medical conditions and was incapable of making decisions for herself.
On May 26th, 2011, the paramedics and O.P.P. received a call to attend 12 Lankin Boulevard, unit 19 to assist an elderly person, namely, Viola Simonds. What the first responders found upon attending that call has remained indelibly imprinted on their memories. The overpowering smell of cat urine. The presence of filth and feces. The place in complete squalor. The condition of the premises was described by the attending O.P.P. Sergeant as amongst the worst he had ever seen in over 30 years of his career as a police officer. This was only a prelude to what they were to find when they went upstairs to Ms. Simonds' bedroom. There, they found Ms. Simonds naked on a bare mattress in a room with blacked out windows, covered in her own vomit and in a filthy condition. The O.P.P. Sergeant described by Ms. Simonds' emaciated appearance. She appeared "like a skeleton covered with skin". There was no muscle tone whatever. Her appearance reminded of him of a "World War II concentration camp survivor".
The paramedics found her upper torso covered in what they described as "coffee ground emesis vomit" indicative of a gastrointestinal bleed. Also observed was her emaciated condition, dehydration and what later was diagnosed at hospital as a fractured right hip. The paramedics made observations of the premises - the tumbleweeds of dog hair, the feces and the overpowering smell of cat urine which pervaded the entire premises. Abuse was a concern which caused the paramedics to call the police.
Viola Simonds was taken by ambulance to the Orillia Soldiers' Memorial Hospital where she was treated in the emergency department by Dr. Gregory Armstrong.
When he attended Ms. Simonds, she was quite confused and yelling out for her mother (who was already deceased). Ms. Simonds presented in an extremely dirty condition and she was naked. There was a brown material covering her entire body, hair, face and nails. She had vomited several hours prior. Dr. Armstrong received information that Ms. Simonds had fallen several days before.
On examination, he found Ms. Simonds suffered from dehydration, severe anemia, emaciation, G.I. bleeding and a sub-capital fracture of the right hip. There was also evidence of bruising to the forehead and upper right forearm. Dr. Armstrong observed Ms. Simonds' body wasting and testified the wasting did not take place over a few days. It would take longer - weeks or months. As for Ms. Simonds' dehydration, this condition was not consistent with her condition several hours prior. He agreed that a person could be weakened by long-term dehydration and malnutrition. He testified this could expose a person to the risk of falling.
Viola Simonds was cleaned up in the E.R. Later, photos were taken of her in hospital after admission. These photos were marked as exhibits and provided graphic and appalling evidence of her condition after she was cleaned up by the nurses.
Dr. Armstrong further testified that the lack of treatment for dehydration, malnourishment, and G.I. bleeding could cause damage to a person's health. Dehydration could lead to organ damage and death. Dehydration could lead to the kidneys not working properly. He testified that Ms. Simonds was closer to failing in that she did have not much reserve left.
Because of the right hip fracture, other multiple factors came into play, such as the loss of mobility, pneumonia, infection, risk of blood clots and gradual decline in health. It was unlikely she would be able to walk because of her broken hip and there would be a risk of blood clotting. Once stabilized in hospital, Ms. Simonds was given blood thinners to deal with the blood clot risk. Dr. Armstrong testified the right hip fracture impacted on her condition elevating the risk of mobility loss.
Dr. David Collins the long-time family physician of Ms. Simonds since the 1970's also testified at trial. He reviewed Ms. Simonds' prior medical history. Ms. Simonds was a smoker who continued to smoke notwithstanding his diagnosis that she had COPD (Chronic Obstructive Pulmonary Disease). He prescribed that she have home oxygen. He continued to see her regularly in his office. She was usually brought in by her daughter, Ms. Davy.
Not only did Dr. Collins treat Viola Simonds at the Orillia Soldiers' Memorial Hospital on May 26, 2011 but he also saw her when she was admitted to hospital on August 12th, 2008. She was brought to the hospital E.R. by the O.P.P. Sadly, the August 12, 2008 attendance at hospital was to presage Viola Simonds' attendance at the hospital on May 26, 2011.
When Dr. Collins saw Viola Simonds in the hospital on August 12, 2008, Ms. Simonds was dehydrated, anemic and totally confused. She had low haemoglobin. While there was improvement regarding some of her physical problems, her mental state did not improve. She still suffered from dementia. Dr. Collins felt she was unable to look after herself. She could not give her name and address. She was totally dependent on someone to care for her. She could not clean herself or care for herself which included toileting and dressing. It was his opinion that she should not go home as she could not feed herself. She needed to be placed in a long-term facility. She needed 24 hour a day care which was a full-time job and required the assistance of a lot of people.
Ms. and Mr. Davy held the Power of Attorney for Personal Care for Viola Simonds. This document is dated July 31, 2003. He had hoped the Power of Attorney would be changed to some other person. The patient care team at the hospital recommended that Viola Simonds be placed in a long-term care facility. Ms. Davy opposed this recommendation. As a result, and on the sole occasion during Dr. Collins' entire medical career, he brought an application before the Consent and Capacity Board. After a hearing held on September 12, 2008, the Board determined that Viola Simonds was not capable of looking after herself. However, she was discharged home with the direction of the Board that Ms. Davy forthwith contact CCAC (Community Care Access Centre) to arrange random weekly home visits to ensure compliance with health and care standards. Viola Simonds was released from the Orillia Soldiers' Memorial Hospital to the care of Diana Davy and James Davy on September 17, 2008.
Despite the direction of the Board, the active involvement of CCAC to follow the Board's direction and input from the patient care team from the Orillia Soldiers' Memorial Hospital and the efforts of Dr. Collins to see Viola Simonds on a regular basis, Ms. Davy did not accept any offers of assistance either for herself or for Viola Simonds' care. Ms. Davy declared she was able to look after her mother by herself and did not require any help. Tragically, she was wrong. What the evidence further revealed was that Mr. and Ms. Davy changed addresses from place to place in Orillia making it difficult for CCAC, Dr. Collins, and the O.P.P. to locate Ms. Simonds despite their best efforts to do so. Instead of the regular visits Ms. Simonds previously had with Dr. Collins, the visits became virtually non-existent except for one unannounced visit by Ms. Simonds and a non-attendance for the next scheduled visit. The O.P.P. were able to locate her once and reported she was fine. Nothing more specific.
This chronology of events provides context which is necessary to fully appreciate Ms. Simonds' treatment at the Orillia Soldiers' Memorial Hospital on May 26th, 2011 and afterwards.
Viola Simonds was also treated by Dr. Collins in the E.R. When Dr. Collins saw her in the E.R., she was lying on a stretcher yelling for her mother who was dead. She was seriously demented. She was fairly filthy. She appeared very dry, emaciated, and quite dehydrated. She suffered from various bruises and a swollen right hip which turned out to be fractured. Dr. Collins testified Viola Simonds appeared as though she had been on a starvation diet for awhile. To reach that level of emaciation would take probably two or three months or longer. It did not happen overnight and it did not happen in three or four days. In his opinion, she was emaciated and dehydrated because she was not getting food and water. She was anemic and had suffered a gastrointestinal bleed. He described his finding of the presence of pressure sores on her back - one of which was ulcerated and the risk of infection associated with those kinds of sores.
As for the broken hip, Dr. Collins felt it was unlikely that Viola Simonds would be able to walk. If she was able to walk, she would not have the pressure sores.
He testified that with her dementia, there would be a risk of falling and a tendency to have an increase in the amount of falls. If people with dementia try to use walkers, sometimes they forget to use them and fall. There would also be a risk of falling if a home had stairs or if a home was cluttered. Dr. Collins testified that the long-term effect from anemia could result in damage to the heart and brain due to insufficient oxygen in a person's haemoglobin.
Ms. Simonds was transferred from the E.R. to a surgical unit and then to the chronic care wing of the Orillia Soldiers' Memorial Hospital on July 11, 2011. She was eventually discharged when a long-term care bed became available at Oak Terrace, a nursing home in Orillia. By that time Ms. Davy and Mr. Davy had agreed to no longer serve as Power of Attorney for Viola Simonds. She went from hospital to Oak Terrace on September 29, 2011. When she arrived at Oak Terrace, Ms. Simonds' condition was stable but barely. Eventually, she contracted terminal pneumonia and died on December 30, 2011. She was 77 years of age.
(b) Circumstances of the Offender James Wilfred Davy
Mr. Davy is the husband of Diana Jean Davy, daughter of Viola Simonds. As early as July 31, 2003 he and Ms. Davy held the Power of Attorney for Personal Care for Ms. Simonds. He and Ms. Davy ceased to have that Power of Attorney by the time Ms. Simonds was taken to Oak Terrace on September 29, 2011. They agreed that she should be placed in a long-term care facility.
On June 2, 2011 Kerri-Ann Brunson, registered social worker and member of the Patient Health Team at Soldiers' Memorial Hospital spoke with Mr. Davy about Viola Simonds' Power of Attorney. Mr. Davy reminded Ms. Brunson that he also had the Power of Attorney for Personal Care of Ms. Simonds.
While Mr. Davy was Viola Simonds' Power of Attorney along with Diana Davy, there is some evidence he was not as active in her care as Ms. Davy. The evidence was that Diana Davy took more of an active role by taking her other to medical appointments, meeting with Ms. Brunson and also attending before the Consent and Capacity Board.
(c) Interview with the Pre-Sentence Reporter - James Wilfred Davy
Mr. Davy has a criminal record marked as Exhibit 1 at the sentence hearing held December 19, 2014. The convictions are dated and are irrelevant. I place no weight in respect of his prior criminal record.
Mr. Davy's Pre-Sentence Report is dated December 5, 2014 and was marked as Exhibit 2 on the sentence hearing.
Mr. Davy is 47 years of age. His childhood is described as normal, free of any significant events. He is married to Diana Davy who does not work. They live in rented premises and she usually watches their three grandchildren who are between the ages of 10 and 4.
As far as formal education is concerned, Mr. Davy completed grade 10 secondary school before he left to enter the work force. He was described as a "hands on learner".
As for employment, he was a hard worker who enjoyed working with his hands. In the past, he has typically worked as a welder/metal fabricator, mechanic and property maintenance worker. At present, he is unemployed as he was laid off on October 3, 2014 from a metal fabricating business in Orillia where he had been employed for approximately two years.
There are no addiction or substance abuse concerns. In completing the Report, Mr. Davy was co-operative. Mr. Davy felt that he did what he could to assist his mother-in-law. He stated that "we (Diana and he) might not have been perfect but we provided anything she needed". He advised that if he could do things over again, he would have been around more to help his wife. He stated that they were just trying to respect Viola Simonds' wishes to keep her out of a retirement home. He described his contact with her as limited as he was always at work and that he may have only seen her once a day in passing.
Mr. Davy's daughter-in-law describes him as a dependable and very supportive person. He is a loving and caring grandfather to his three grandchildren.
Should the court consider a community based sentence appropriate, it is recommended by the Pre-Sentence Reporter that Mr. Davy would present as a suitable candidate.
(d) Circumstances of the Offender Diana Jean Davy
Ms. Davy is the wife of James Wilfred Davy. As early as July 31, 2003 she and Mr. Davy held the Power of Attorney for Personal Care for her mother Viola Simonds. Ms. Simonds lived with them and they cared for her. Ms. Simonds suffered from severe dementia and COPD. She was on numerous medications for her various physical conditions.
Between September 12, 2008 and May 26, 2011, Ms. and Mr. Davy and Viola Simonds lived together in Orillia at a number of addresses. She and her husband provided care to Ms. Simonds who could not look after herself. Ms. Davy took her mother to medical appointments and obtained her medications.
While Viola Simonds lived with the Davys, she was under their charge. Because of her ill health, she could not provide for herself. They were responsible to provide Viola Simonds with the necessaries of life, food, water, shelter, adequate care, medical treatment of health conditions requiring treatment and protection from harm.
Ms. Davy reported to Ms. Brunson that Viola Simonds had worked as a nurse in a nursing home and her mother was not interested in going to live in a long-term care facility. Despite Viola Simonds' wishes as reported by Ms. Davy, Viola Simonds' health continued on a downward spiral leading to her hospitalization on August 12, 2008 and again, on May 26, 2011.
Notwithstanding the recommendations of the Patient Care Team, Ms. Davy refused any assistance. Both Ms. and Mr. Davy attended a meeting after the first admission where they were presented with an information package regarding their obligations as Power of Attorney holders. Their duties and obligations were explained to them by Ms. Brunson. Ms. Brunson testified that Ms. Davy appeared to have difficulty appreciating her mother's diagnosis of dementia. Ms. Davy said she did not know her mother had dementia in September of 2008. She was only aware her mother had memory problems. Ms. Davy declined all assistance and was of the view she could look after her mother without help.
No assistance was sought by Ms. Davy although the Patient Health Team from Orillia Soldiers' Memorial Hospital, CCAC, Dr. Collins and the O.P.P. were involved at various times before May 26, 2011 without success to provide assistance, monitoring and health care.
Several days before May 26, 2011, Viola Simonds fell while in the charge of Ms. and Mr. Davy. She broke her right hip. Several days passed before the paramedics were called by Mr. Davy at the request of Ms. Davy in the early morning hours of May 26, 2011.
Ms. Davy along with her husband eventually relinquished their Power of Attorney for Personal Care for Viola Simonds before Ms. Simonds was taken to Oak Terrace in September of 2011. She passed away there on December 30, 2011.
(e) Interview with Pre-Sentence Reporter - Diana Jean Davy
Ms. Davy has no criminal record. Ms. Davy's Pre-Sentence Report is dated December 15, 2014 and was marked as Exhibit 3 at the Sentencing Hearing.
Her family history is contradictory. On the one hand, there were no reported abuses, no disciplinary violence and no addiction issues. There were also no reported mental health concerns. Ms. Davy was raised in a middle-class environment and they wanted for nothing. She and her siblings were provided with a home full of love and support.
On the other hand, Ms. Davy's recollection of her family life was much different. She complained of sexual abuse by her brother between the ages of 12 and 15 years old. She also claimed similar abuse by a cousin.
She ran away from home when she was 15 years old and had problematic teen years. While Ms. Davy felt that she was unsupported by her family, other family members were of the view that she was a disruptive family member. Other members of the family described Ms. Davy as helpful, especially where her grandchildren are concerned. She was very supportive of her son Joseph. She has been involved in a long-term relationship with Mr. Davy with whom she is married.
As for her education, she stopped going to school when she was 16.
She is currently unemployed and for the most part is a stay-at-home mother. However, from 2009 to 2013 she was the superintendant of a townhouse complex on Lankin Boulevard in Orillia.
While Ms. Davy excessively used alcohol as a teenager, it is not currently considered a problem. There were mixed statements regarding her use of drugs. The Report described family discord with Ms. Davy exhibiting anger management issues. During the interview for the Report, it was noted that Ms. Davy's hygiene was questionable as there was an odour emanating from her which was contrary to a comment by one interviewee that the cat boxes in Ms. Davy's home were always clean and that person would not be going over to Ms. Davy's home if they were dirty.
In the Report dealing with Ms. Davy's character/behaviour/attitude, there were reports of her lack of remorse and no insight as to her offending. There was a denial of responsibility. She offered an explanation about her mother's size as follows: "Them going on about how tiny she was, take a look at me. Is it really hard to believe she would be tiny?" She also concluded, "She had been retired for years, and wasn't using her muscles". (See page six of the Report)
At page seven of the Report, she described her mother as being capable. She provided her mother with meals. Her mother ate but because her mother was a chain smoker and had COPD "you don't feel like putting food in your mouth". These comments were further identified by the Crown as examples of deflection.
The reporter's assessment was found at page seven and eight.
The reporter identified Ms. Davy as a 49 year old offender, married to James Davy and the grandmother of three children for whom she cares regularly. She is unemployed at the moment and has few employable skills.
For the purposes of the Report, numerous family members came forward to describe Ms. Davy in very negative terms. They described her as vengeful, vindictive, manipulative and mean. Her immediate family described her as loving, nurturing and caring as a mother, grandmother and friend. There is a rift in the family which is complete with anger, blame, recriminations and sadness.
Ms. Davy believed that she did everything she could for her mother in the eight years she looked after her. From her perspective, the family never helped her care for her mother. However, those she blamed countered by stating that they tried to help her but were yelled at, threatened, intimidated and turned away for offering.
At page seven, the Pre-Sentence reporter notes: "The most clear and disturbing point throughout this process, was the offender's steadfast belief she did nothing wrong. She provided compartmentalized excuses for the condition the paramedics found her mother in that night".
At the top of page eight the reporter notes:
The offender's refusal to accept how poor her mother's physical and mental condition was, suggests an unwillingness to even consider a perspective other than her own.
The offender presents as unfazed by the death of her mother and the factors that led her to her passing and appears inconvenienced by the court process. Throughout the interview for this report she justified her actions, minimized her responsibility and rationalized her actions. In light of all of the above, it could well be that if given the chance to care for someone again, she would similarly reoffend.
The reporter's recommendations can be found at page eight should the Court consider probation in whole or as part of the offender's sentence. Suggestions were made in order to manage Ms. Davy in the community and assist in her rehabilitation as follows:
● Report to probation officer as directed
● Abstain from purchase/possession/consumption of illegal drugs
● Attend and participate in counselling as recommended by probation, with particular attention to childhood trauma and parenting
● Find and maintain suitable fulltime employment
● Reside in a place approved of by probation
● Not to be in care-giver role of any kind and allow unscheduled home visits by police and/or probation in order to monitor adherence to this condition.
(f) Victim Impact Statements
Three Victim Impact Statements were submitted to the Court as follows:
Exhibit 4 - Victim Impact Statement of Donald Simonds, son of Viola Simonds.
Exhibit 5 - Victim Impact Statement of Michael Simonds, grandson of Viola Simonds, nephew of Ms. Davy and Mr. Davy.
Exhibit 6 - Victim Impact Statement of Brad and Sue McConnell, nephew and niece of Viola Simonds.
In the Victim Impact Statement of Donald Simonds, he expressed a deep sadness and regret that his children and grandchildren were deprived of the opportunity to know Viola Simonds as the very loving and caring woman that she was. He wrote about how he was made to feel unwelcome when Ms. Davy and Mr. Davy were given Power of Attorney. He wrote about how he had lost contact with his mother after the decision of the Consent and Capacity Board in September of 2008. From that time until a month before Viola Simonds passed away, there was no contact. However, in November of 2011 he received a text that his mother had been found in a nursing home. When he went to see her, he had expected to find his mother but only found instead a frail woman that at first was unrecognizable. When he began to reconnect, he was told that she did not have long to live. In her last days, he believes that he and his mother found the love for one another that had been lost for a long time.
Michael Simonds, grandson of Viola Simonds also suffered an emotional loss. The last time he recalled seeing his grandmother was when he was 15 years old. He regretted never really knowing her as an adult. His best memories of her now were those of her final days, a shadow of the woman she once was.
In their Victim Impact Statement, Brad and Sue McConnell also described their emotional loss. They described how their relationship with their aunt was affected by Ms. Davy. One day they went to visit and Ms. Davy had taken Viola Simonds and disappeared. No phone number, no forwarding address. They made many attempts to try and locate Viola Simonds but without success. Their children had no way of getting to know what a warm and kind woman Viola Simonds was and what a wonderful great aunt she would have been. They expressed their love for Viola Simonds and the sadness for her loss.
LEGAL PARAMETERS
Counsel agree that for these kinds of convictions, a conditional sentence of imprisonment to be served in the community is available. Counsel disagree as to whether such a sentence is fit and appropriate in this case.
Section 215(3)(a) of the Criminal Code of Canada also speaks to the legal parameters for these offences. Section 215(3)(a) provides:
(3) Everyone who commits an offence under subsection (2)
(a) Is guilty of an indictable offence and liable to imprisonment not exceeding five years.
POSITIONS OF THE CROWN AND DEFENCE
The Crown
The Crown seeks the imposition of a significant custodial sentence against Ms. Davy and Mr. Davy. The sentencing principles of denunciation and deterrence are paramount. The term of imprisonment sought for each of them is between 18 months and two years followed by a period of probation of at least two years. In addition, the Crown seeks two ancillary orders as follows: (1) a DNA Order pursuant to s. 487.051 of the Criminal Code and (2) a non-communication order pursuant to s. 743.21 of the Criminal Code.
The Crown submits that Viola Simonds was a vulnerable victim in the charge of Ms. and Mr. Davy for a lengthy period of time. She completely relied on them for her care and they utterly failed her. Viola Simonds lived in deplorable conditions. She was frail, malnourished, dehydrated, confused and left in filth and squalor. Her dementia and physical infirmities made her totally dependent upon the Davy's who failed to provide her with the necessaries of life. Instead, it is submitted that they stripped Ms. Simonds of her dignity and subjected her to neglect and abuse. In failing to provide the necessaries of life to Viola Simonds, they caused or were likely to cause permanent injury to her health and endangered her life contrary to the Criminal Code.
It is submitted that Ms. and Mr. Davey were in a position of trust to provide the necessaries of life to Viola Simonds. They owed an obligation to Ms. Simonds as family members and as her Powers of Attorney to provide her with the necessaries of life which they failed to do. It is submitted that Ms. Simonds suffered months of neglect which culminated in the hospital attendance of May 26, 2011 after she had broken her right hip. The Crown points at the painful and emotional impact on the family members of Viola Simonds caused by the conduct of Ms. and Mr. Davy.
The Crown submits that all of the circumstances of this case cry out for a custodial sentence followed by a significant term of probation.
The Defence - James Wilfred Davy
Counsel for Mr. Davy submits that a conditional sentence of imprisonment to be served in the community in the range of six to ten months followed by a period of probation for three years is a fit and appropriate sentence in this case.
He seeks a conditional sentence to served in the community for Mr. Davy based on Mr. Davy's limited and less active role regarding providing the necessaries of life to his mother-in-law. It is submitted that Mr. Davy was less responsible for her care. His conduct was not assaultive but negligent. He tried to do the best that he could in keeping with what Viola Simonds had requested years before. His Pre-Sentence Report is positive and speaks to remorse where he admits that he could have done and should have done more.
It is submitted that Mr. Davy was trying to respect the wishes of Ms. Simonds which in the end was a misjudgement on the part of Ms. and Mr. Davy.
The Court was asked to consider that Mr. Davy has lost his employment and that he and Ms. Davy were the subject of considerable publicity as a result of this case.
Lastly, it is submitted a conditional sentence of imprisonment meets the principle factors of denunciation and deterrence as well as rehabilitation in this case.
(b) The Defence - Diana Jean Davy
On behalf of Ms. Davy it is submitted that she has no criminal record and a lengthy period of incarceration would not be appropriate in this case.
If a custodial sentence is to be imposed on Ms. Davy, the appropriate sentence would be four months in jail. If a conditional sentence of imprisonment to be served in the community is found to be the appropriate sentence then it is submitted that a term should be in the range of eight to ten months followed by a period of probation for two years.
It is submitted that Ms. Davy exceeded more than failed to provide the necessaries of life and some consideration ought to be given for which she had done in this regard. It is submitted that Ms. Davy should not be penalized twice for breach of trust which admittedly is an aggravating factor.
It is submitted that Ms. Davy tried to care for her mother at home. However, she made a mistake to do what her mother wanted. While Ms. Davy's treatment of her mother did not start out criminal, it ended up that way. Caring for her mother proved to be a bigger problem than what Ms. Davy could handle but she was unable to cope.
It is submitted that in all the circumstances if a custodial sentence is warranted then a term of imprisonment of four months would be appropriate. If a conditional sentence of imprisonment to be served in the community is warranted then the appropriate sentence would be in the eight to ten month range to be followed by a period of probation for two years.
REVIEW OF RELEVANT CASE LAW
The Crown submitted three cases for the Court's consideration: R. v. Foubert, [2009] O.J. No 5024 (S.C.J.) [QL]; R. v. A.P., [2013] O.J. No. 5566 (S.C.J.) [QL]; R. v. Peterson, 2005 37972 (ON CA), [2005] O.J. No. 4450 (C.A.)[QL], leave to appeal to S.C.C. refused: [2005] S.C.C.A. No. 539.
Defence counsel had submitted that the facts in our case were distinguishable from the cases cited by the Crown. While this is so and while each case is to be determined on its own facts, there was no dispute that the legal principles set out in the authorities cited by the Crown were applicable in our case.
In R. v. Foubert, the accused plead guilty to assaulting four elderly residents and three co-workers in a nursing home setting. The accused was a personal support worker assigned to care for residents suffering from Alzheimer's disease and dementia. The accused was sentenced to eight months incarceration. Upon investigation by the police, it was found that certain residents cared for by the accused had sustained unexplained bruising. This bruising occurred as a result of the vulnerable residents being roughly handled by the accused. It was found that elder abuse was a growing problem and the accused had breached the trust of vulnerable residents. Only incarceration could meet the need for general deterrence. While all of the residents in question were deceased, their families spoke of the sadness, sense of betrayal and guilt for placing family members in a facility where they were abused.
It was held that elder abuse was a growing problem in society and it had to be addressed by a sentence that met the principle of general deterrence. This could only be accomplished by incarceration. The accused was sentenced to eight months imprisonment; two years probation; DNA sample; and a ten year weapons prohibition.
In R. v. A.P., a young father plead guilty to failing to provide the necessaries of life to his four year old child. He had no previous record and was remorseful. The offence involved a breach of trust. The accused's four year old child was barricaded in a room for months, was not bathed, had no human interaction and was fed once per day. The accused was sentenced to 12 months time served, two years probation and a DNA order. The aggravating factors included that the child was defenceless and severely neglected and the accused had gotten his child's mother addicted to drugs. The mitigating factors included that the accused was relatively young with no prior record and he pleaded guilty with an expression of remorse.
In R. v. Peterson, the accused was convicted of failing to provide the necessaries of life to his father, thereby endangering his father's life. He was sentenced to six months imprisonment, two years probation and 100 hours community service. He appealed his conviction and sentence. His appeal was dismissed as to conviction and sentence. The accused's father was dependent. The accused had a familial relationship with his father and was aware of his father's dependency. He controlled his father's living conditions and kept him in an unsafe environment. He had control of his father's care, and chose not to take decisions that would ensure his father was provided with the necessaries of life. The Court of Appeal held that the sentence imposed was appropriate considering the life and time over which the accused neglected his father's needs and the breach of position of trust.
The defence noted the distinguishing factors in the cases cited by the Crown. Further, counsel for the defence cited the principles set out in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, in particular that a conditional sentence can achieve both punitive and restorative objectives and should guide the sentencing.
The Crown's authorities speak of the need for deterrent sentences when dealing with highly vulnerable people.
AGGRAVATING AND MITIGATING FACTORS
Aggravating Factors
Viola Simonds was a vulnerable elderly woman who suffered from severe dementia, physical diseases and advanced age. Both Ms. and Mr. Davy owed a duty to provide her with the necessaries of life, including nutrition, water, hygiene, shelter and medical treatment and protection from harm. Ms. Simonds was not capable of making her own decisions about medical treatment, care for herself or other activities of daily life. She was totally dependent on Ms and Mr. Davy as the persons that she lived with, as her family members, and as her attorneys for personal care. Their Power of Attorney dated July 31, 2003 created their duty to provide for Ms. Simonds' care. Ms. Simonds was a person under the charge of both Ms. and Mr. Davy. She was unable to withdraw herself from their charge because of her dementia, infirmities and advanced age. Ms. and Mr. Davy breached their position of trust and failed in their duty to provide the necessaries of life to Ms. Simonds.
In failing to provide the necessaries of life to Ms. Simonds, Ms. Davy and Mr. Davy neglected Ms. Simonds over a continued period of time. They failed to provide Ms. Simonds with a clean and safe environment which put her at risk for injury and illness. She was malnourished, dehydrated, filthy, bruised and eventually suffered a broken right hip. She suffered from bed sores, one of which was ulcerated. The condition in which she was found when she attended hospital on May 26, 2011 was not the result of an isolated event but rather a pattern of abuse which occurred over a longer time frame caused by the Davys' failure to provide those necessaries of life to Ms. Simonds. That failure caused further harm to Ms. Simonds' health and endangered her life. She was at risk of death on her hospital admission. She was left vulnerable to infection and illness afterwards.
There was no excuse for the failure by Ms. Davy and Mr. Davy to provide the necessaries of life to Ms. Simonds. They failed to meet their obligations and they had no excuse for that failure. By their failure to meet their obligations and their delay in seeking assistance, Ms. and Mr. Davy's failure to provide the necessaries of life to Viola Simonds was likely to cause permanent injury to Viola Simonds and was likely to cause permanent injury to her health. Their failure indeed did cause permanent injury to her health. Further, their failure to provide those necessaries of life to Ms. Simonds endangered her life.
Another aggravating factor as to the conduct of both Ms. and Mr. Davy was the manner in which they moved from place to place with Viola Simonds. They knew of the decisions of the Consent and Capacity Board. They knew Viola Simonds was incapable and they knew she was in fragile health. They were aware of the critical need to monitor her health by health care professionals on a regular basis to ensure Ms. Simonds was receiving proper care by Mr. and Mrs. Davy.
Rather than co-operate with CCAC, the Patient Health Care Team and Dr. Collins, Ms. and Mr. Davy frustrated any attempts by their health care professionals to assist either Viola Simonds or Ms. and Mr. Davy. Instead, Ms. and Mr. Davy, with Viola Simonds in their care, engaged in a disappearing act. They deliberately played a game of hide-and-go-seek with the very people who were ready, willing and able to help.
The conduct of Ms. and Mr. Davy in this regard only further jeopardized the already fragile health of Ms. Simonds. They could not help but know that their actions would have a detrimental effect on Ms. Simonds. They deprived her of the health care she so desperately needed.
Not only did Ms. and Mrs. Davy isolate Ms. Simonds from health care professionals who could help her, but also Ms. and Mr. Davy did isolate Ms. Simonds from her other family members who could not find her. Ms. and Mr. Davy robbed Viola Simonds and her other family members of the few precious remaining years that they could have enjoyed a loving relationship together. This is but one more aggravating factor.
Ms. Davy's Remarks
When asked whether Ms. Davy had anything to say before sentence, she stated the following: (1) she was not allowed to visit her mother in hospital in 2011 and was told there was no patient in hospital by that name; (2) she has PTSD and was molested by family members when she was 12 to 15 years of age; (3) she wished that she could have done more. What she did was not intentional and it was a bigger problem than she could handle. Lastly, the ambulance was called.
Her remarks do not speak of remorse for failing to provide the necessaries of life to her mother. Rather, her comments were self-centered and demonstrated a deflection of responsibility. While her absence of remorse is not considered an aggravating factor, it does show a significant lack of insight about her conduct.
Pre-Sentence Reports
While Mr. Davy's Pre-Sentence Report is neutral and somewhat positive, the Pre-Sentence Report for Ms. Davy is generally negative. It demonstrates a lack of remorse and no insight as to her re-offending.
There is a deep concern by the Pre-Sentence reporter that she was unfazed by the death of her mother and the factors that lead to her passing. Ms. Davy appeared to be inconvenienced by the court process. Throughout the interview for her Pre-Sentence Report, Ms. Davy justified her actions, minimized her responsibility and rationalized her actions. In light of all of the above, the Pre-Sentence reporter was of the view that if given the chance to care for someone again, Ms. Davy would similarly re-offend.
Amongst a number of her recommendations, there was a serious concern that Ms. Davy not be in a caregiver role of any kind and that unscheduled home visits by the police and/or probation be in order to monitor adherence to this condition.
Mitigating Factors
Although Mr. Davy has a criminal record, it does not apply in respect of this case. He is considered by the Court to be a first offender.
Ms. Davy has no criminal record and is a first offender.
Mr. Davy is a hard worker and has been steadily employed for the last two years. He has been laid off from his job. However, there has been no evidence as to the circumstances surrounding his lay-off. This is considered as a neutral factor.
The Pre-Sentence Report for Mr. Davy suggests he is remorseful.
PRINCIPLES OF SENTENCING
In R. v. Camuso [2004] O.J. No. 4606, Fuerst, J. summarizes the principles of sentencing at paragraph 17 and 18 as follows:
[17] The objectives of sentencing long recognized at common-law have been codified in s. 718 of the Criminal Code. They are: The denunciation of the unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[18] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, which do not apply in this case. It also requires that sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentence not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
The Conditional Sentence of Imprisonment
Section 742.1 of the Criminal Code permits a court to order that an offender serve a sentence of imprisonment of less than two years in the community, subject to strict conditions, when certain statutory pre-requisites are met. Those pre-requisites are identified by the Supreme Court of Canada in R. v. Proulx found at 2000 SCC 5, [2000] 1 S.C.R. 61:
a) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
b) the court must impose a term of imprisonment of less than two years;
c) the safety of the community would not be endangered by the offender serving the sentence in the community;
d) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Code.
Section 742.1 does not exclude any offences from the conditional sentencing regime, except those with a minimum term of imprisonment. A conditional sentence is available in principle for all offences in which the statutory pre-requisites are satisfied, see R. v. Proulx at paragraph 79.
Conditional sentences include both punitive and rehabilitative objectives and may be as onerous and perhaps even more onerous than a jail term. (See R. v. Proulx at para. 41). Conditional sentences generally should include punitive conditions that are restrictive of the offender's liberty, conditions such as house arrest should be the norm and not the exception, (see R. v. Proulx at para. 127).
Having made the preliminary determinations rejecting penitentiary term and probationary measures as inappropriate, no minimum term and a term of imprisonment less than two year, the sentencing judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. The judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety. Two factors should be taken into account:
a) the risk of the offender re-offending;
b) the gravity of the damage that could ensue in the event of re-offence (see R. v. Proulx at paragraphs 69 and 127).
Once the pre-requisites of s. 742.1 are satisfied, the judge should seriously consider whether a conditional sentence is consistent with the fundamental purposes and principles as set out in s. 718 to 718.2 (see R. v. Proulx at para. 127).
A conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
A conditional sentence may be imposed even where there are aggravating circumstances relating to the offence or the offender, increasing the need for denunciation and deterrence. Subject to considerations of denunciation and deterrence, a conditional sentence will likely be the appropriate sanction when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved.
If a judge decides to impose a conditional sentence, conditions to be included are based on the following principles;
a) the conditions must ensure the safety of the community;
b) the conditional sentence must be tailored to fit the particular circumstances of the offender and the offence;
c) punitive conditions such as house arrest should be the norm;
d) conditions must be realistically enforceable (see R. v. Proulx at para. 117).
In the present case, the Crown and defence counsel agree that a conditional sentence of imprisonment is a disposition available for Ms. Davy and Mr. Davy should the Court so decide.
In addition to the foregoing, this Court has also had the benefit of hearing family members and reviewing their Victim Impact Statements all of which highlighted the emotional impact suffered by Viola Simonds' family.
ANALYSIS
The jury in this case were satisfied beyond a reasonable doubt that Ms. and Mr. Davy failed to provide the necessaries of life to Viola Simonds. She was an elderly woman who suffered from severe dementia and other physical ailments. She was unable to look after herself. She relied on the Davys entirely for her care. She was under their charge and had lived with them for a number of years. She was unable, by reason of her severe dementia and physical diseases, to withdraw herself from their charge and to provide for herself with such necessaries of life. In the result, by their failure, Ms. Davy and Mr. Davy caused or were likely to cause permanent injury to the health of Viola Simonds. There was no lawful excuse for their failure to provide the necessaries of life to Ms. Simonds.
Further, such failure to provide the necessaries of life did endanger the life of Ms. Simonds. The jury heard evidence from a number of witnesses at trial called by the Crown and convicted Ms. Davy and Mr. Davy as charged.
Ms. Simonds was a vulnerable person dependent entirely upon Ms. Davy and Mr. Davy for her care. In this regard, they failed miserably with the result that Ms. Simonds suffered from their neglect and abuse. In the face of all of the evidence, the assertions of Ms. and Mr. Davy that they did all that they could to care for Ms. Simonds are hollow, self-serving and false. Clearly, they did not do enough to satisfy their legal and familial obligation to Ms. Simonds. I find that Ms. Simonds was kept in deplorably filthy conditions. She lived in a house of squalor where the overpowering smell of cat urine pervaded. The house was strewn with garbage and cat feces. Ms. Davy and Mr. Davy lived in that same house and lived in those same deplorable conditions to which they subjected Ms. Simonds.
The state of Ms. Simonds when she was brought to hospital by the O.P.P. on August 12, 2008 presented an elderly woman who was dehydrated, anemic, and totally confused. She could not look after herself at all. She required placement in a long-term care facility where she needed 24 hour a day care. This was a full-time job and required the assistance of a lot of people.
Ms. Davy and Mr. Davy held her Power of Attorney which they were not prepared to relinquish. The matter went before the Consent and Capacity Board. The Board found that Ms. Simonds was incapable of looking after herself. The Board also found that she should remain in the care of Mr. and Ms. Davy. Ms. Davy was to forthwith contact CCAC to arrange random weekly home visits to ensure compliance with health and care standards. Such random weekly home visits never occurred. Instead the Davys moved from place to place with Ms. Simonds which had the effect of avoiding and preventing any oversight by her family physician, the police, the health team at Orillia Soldiers' Memorial Hospital and the Consent and Capacity Board. Viola Simonds simply disappeared along with the Davys only to reappear unannounced when one time found by the police and another time arriving at Dr. Collins' office, only to disappear again. She disappeared from other family members who were looking for her.
Sadly, her condition did not improve after August 2008. Instead, on May 26, 2011 she was taken to Orillia Soldiers' Memorial Hospital again for dehydration, malnutrition, a gastrointestinal bleed, various bruises, and, this time, a broken right hip. She still suffered from severe dementia, and still could not look after herself. She was still reliant on Ms. and Mr. Davy to care for her in every respect.
After Ms. Simonds was stabilized at hospital Ms. and Mr. Davy relinquished their Power of Attorney. Ms. Simonds was moved to Oak Terrace in September 2011 where she later passed away from pneumonia in December of 2011 at 77 years of age.
This Court further rejects any characterization that the conduct of Ms. and Mr. Davy was only a misjudgement as opposed to criminal conduct. In convicting the Davys, the jury was absolutely clear that their failure to provide the necessaries of life to Ms. Viola Simonds was, in fact, criminal conduct. The submission on behalf of Mr. Davy that the conduct here was not assaultive but negligent is a distinction without a difference as in the end, the result was the same - Ms. Simonds' life was endangered and the conduct of the Davys caused or was likely to cause permanent injury to her health.
This Court also rejects the argument on behalf of Mr. Davy that while he was clearly responsible, he was less responsible because of the limited and lesser active role which he played in the care of Viola Simonds. He saw Viola Simonds on a daily basis. He saw her health continue on a downward spiral over the time period in question. He did nothing about it, although he was quick to advise the health care team at Orillia Soldiers' Memorial Hospital that he too held Viola Simonds' Power of Attorney. Mr. Davy is just as criminally liable as Ms. Davy for the failure to provide the necessaries of life to Ms. Simonds.
It is further submitted that Ms. Davy and Mr. Davy were trying to respect the wishes of Viola Simonds. This provides no justification whatsoever for the failure to provide the necessaries of life to her. Ms. Simonds continual deteriorating health, both mental and physical, had long superseded any wish that she might have had years ago not to be placed in a nursing home. It is self-serving and all too convenient for Ms. and Mr. Davy to hide behind what a severely demented woman wanted to treat her the way that they did. Clearly, Ms. Simonds did not choose to be deprived of the necessaries of life. She did not choose to be neglected or abused by Ms. and Mr. Davy. She did not want to be left in her own filth - malnourished, dehydrated and injured. She did not want to be deprived of family contact.
I have considered whether a conditional sentence of imprisonment to be served in the community is an appropriate and fit sentence in this case. I am aware that sentencing is an individualized process that requires the sentence to be "proportional to the gravity of the offence and the degree of responsibility of the offender" as stated by Chief Justice Lamer in R. v. Proulx at paras. 79 - 81.
That having been said, a conditional sentence in this case is not in proportion to the gravity of the offence and the degree of responsibility of the offenders.
This is a case of elder abuse. Denunciation and deterrence are the paramount sentencing considerations in elder abuse sentencing particularly in a case such as this where Ms. Simonds suffered from severe dementia and was vulnerable. In R. v. Foubert Justice McKinnon addressed elder abuse as a growing problem in our society that must be seriously addressed. At para. 30, Justice McKinnon states:
Caregivers of the elderly, particularly those suffering from Alzheimer's disease and dementia, owe tremendous power. That power cannot be abused.
He goes on to state at para. 31:
Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court will 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.
At para. 32 he goes on to state:
"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".
While the facts in Foubert are different from the facts in our case, in as much as the criminal conduct took place within a long-term care facility, the principles cited by Justice McKinnon are not confined to a breach of trust only within the setting of a long-term care facility. Rather, a breach of trust can also and does often take place in a domestic setting as was the case in R. v. Peterson. In our case, as in the Peterson case, the abuse took place in a domestic setting where Ms. Simonds and the Davys lived together and where Ms. Simonds suffered from lack of food and water in deplorable unhygienic conditions. In Peterson, the Court of Appeal held that the difficulty of detection of such a crime and the importance of discouraging such crime are considerations that increased the gravity of the offence. Further, in Peterson, the Court of Appeal cited another consideration that relates to the gravity of the offence and the degree of moral responsibility of the offender. At para. 56 the Court held:
"As a general rule, the greater the period of time over which an offence has occurred, the greater the moral blame assigned to the offender".
In Peterson, as in our case, the offences occurred over a substantial period of time. In our case, the Davy's failure to provide the necessaries of life to Viola Simonds took place of a number of months. While it was obvious to others, it most certainly would have been obvious to the Davys that they were living in squalor and Ms. Simonds' health was endangered.
While it is submitted on behalf of Mr. Davy that he could have done and should have done more, the cruel truth is that nothing more was done either by him or Ms. Davy. This indifference was addressed in Peterson at para. 57:
"In addition, the importance of general deterrence and denunciation is highlighted in this case by the indifference of the appellant to the criminal nature of his offence. The sentence must bring home to other like-minded persons that abuse of elderly helpless parents in their care will not be tolerated. The imposition of a term of imprisonment has a denunciatory component in that it not only condemns the particular offender's conduct, but, communicates and reinforces a shared set of values. It reinforces the point that the conduct in this case was criminal and not an accident or a mere error in judgment. While a conditional sentence can convey deterrence and denunciation, the need to ensure that this offence carries the required stigma would not be met by a conditional sentence in this case.
I adopt the reasoning of the court in the Foubert and Peterson cases.
In the case of Ms. Davy, she has no insight as to her offences. Her comments are full of denial, of responsibility and deflection. She fails to appreciate even to this day her miserable failure and that of her husband to provide the necessaries of life to her mother. Of further concern are the comments of the Pre-Sentence reporter regarding Ms. Davy's risk of re-offence.
In our case, the sentencing principles of general deterrence and denunciation are paramount together with specific deterrence and can only be served by a custodial sentence for Ms. and Mr. Davy.
SENTENCE
Accordingly, I find that an appropriate and fit sentence in this is incarceration to be served by both Ms. Davy and Mr. Davy. Their blameworthiness is the same despite some rationalization that Mr. Davy should be less responsible because Ms. Davy cared more for her mother. I reject this submission. They are equally responsible. They equally failed to provide the necessaries of life. They will both serve jail time.
Section 215(3)(a) provides that everyone who commits the offences for which Ms. Davy and Mr. Davy were convicted is guilty of an indictable offence and liable of imprisonment for a term not exceeding five years.
The Crown seeks imprisonment for a term of 18 months and two years followed by a term of probation for at least two years. While the circumstances of this case are serious, I do not agree with the range of sentence proposed by the Crown.
James Wilfred Davy
James Wilfred Davy, please stand. For the reasons given, I am imposing on you the following sentence:
Count one - Failure to provide the necessaries of life and thereby causing or likely cause permanent injury to the health of Viola Simonds - 12 months in jail.
Count two - Failure to provide the necessaries of life and thereby endangering the life of Viola Simonds - 12 months in jail to be served concurrently with count number one.
Following a period of incarceration, you shall be placed on probation for a term of two years. The conditions being:
Keep the peace and be of good behaviour;
Report as directed;
Reside as approved by the probation officer;
Notify the probation officer of any planned change of address at least 48 hours in advance of any such change;
Take and complete any counselling as recommended by the probation officer, in particular, counselling, regarding parent caregiving;
Not to act as Power of Attorney for any other person during the course of your probation;
Not to be in a caregiving role of any kind and to allow unscheduled home visits by police and/or probation and present yourself at the door in order to monitor adherence to these conditions;
Have no contact or communication directly or indirectly and not attend within 100 metres of the known places of residence, education, or employment of the following individuals:
Don Simonds
Michael Simonds
Elizabeth Simonds
Brad McConnell
Sue McConnell
Valerie Swire
Michelle Derochie
Janice Simonds
*except with their written revocable consent filed with the probation office.
ANCILLARY ORDER
a) There will be a DNA pursuant to s. 487.051 of the Criminal Code.
b) There will be a non-communication order pursuant to s. 743.21 of the Criminal Code.
c) You shall have no contact or communication directly or indirectly and to attend within 100 metres of the known place of residence, education or employment of the following individuals:
Don Simonds 2) Michael Simonds
Elizabeth Simonds 4) Brad McConnell
Sue McConnell
Valerie Swire
Michelle Derochie
Janice Simonds
*except with their written revocable consent filed with the institution.
Please be seated.
Diana Jean Davy
Ms. Davy please stand. For the reasons given, I am imposing on you the following sentence:
Count number one - Failure to provide the necessaries of life and thereby causing or likely to cause permanent injury to the health of Viola Simonds - 12 months in jail.
Count two - Failure to provide the necessaries of life and thereby endangering the life of Viola Simonds - 12 months in jail to be served concurrently with count one.
Following a period of incarceration, you shall be placed on probation for a term of two years. The conditions being:
Keep the peace and be of good behaviour;
Report as directed;
Reside as approved by the probation officer;
Notify the probation officer of any planned change of address at least 48 hours in advance of any such change;
Take and complete any counselling as recommended by the probation officer, regarding childhood trauma and counselling regarding parenting/caregiving;
Not to act as Power of Attorney for any other person during the course of your probation;
Not to be in a caregiving role of any kind and to allow unscheduled home visits by police and/or probation and present yourself at the door in order to monitor adherence to these conditions;
Have no contact or communication directly or indirectly and not attend within 100 metres of the known places of residence, education, or employment of the following individuals:
Don Simonds
Michael Simonds
Elizabeth Simonds
Brad McConnell
Sue McConnell
Valerie Swire
Michelle Derochie
Janice Simonds
*except with their written revocable consent filed with the probation office.
ANCILLARY ORDER
a) There will be a DNA pursuant to s. 487.051 of the Criminal Code.
b) There will be a non-communication order pursuant to s. 743.21 of the Criminal Code.
c) You shall have no contact or communication directly or indirectly and to attend within 100 metres of the known place of residence, education or employment of the following individuals:
Don Simonds
Michael Simonds
Elizabeth Simonds
Brad McConnell
Sue McConnell
Valerie Swire
Michelle Derochie
Janice Simonds
*except with their written revocable consent filed with the institution.
Please be seated.
Counsel that concludes my reasons for sentence.
MS. STAATS: Thank you.
THE COURT: Mr. Malick, Mr. Ehlers.
MR. EHLERS: Thank you, sir.
MR. MALICK: Thank you.
THE COURT: Thank you.
C O U R T A D J O U R N S
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Heryet, certify that this document is a true and
accurate transcript of the recording of R. v. Diana Davy and James Davy is the recording of the evidence and proceedings held at 75 Mulcaster Street, Barrie, Ontario on January 21, 2015 taken from Recording No.(’s) 3811-03-20150116-135740-10-DITOMASO
which has been certified in Form 1.
February 23, 2015 __________________________________
Shannon Heryet ACT #3389634078