ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-138-00BR
DATE: 2015-09-04
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIRSTEN PEMBERTON
DEFENDANT/APPLICANT
Monica Heine, for the Crown
J. Michael Woogh, for the Defendant
HEARD: June 9, 11, August 26, September 4, 2015.
RESTRICTION ON PUBLICATION
Information contained in this judgment is subject to a publication restriction under subsection 517(1) of the Criminal Code. This judgment shall therefore not be published in any document or broadcast or transmitted in any way before either (i) the accused is discharged following a preliminary inquiry; or (ii) the end of the accused’s trial.
RAY, J
[1] This is a bail application by the defendant. She is charged with the following:
a. That Kirsten Pemberton between the 1st day of February in the year 2015 and the 9th day of May in the year 2015 at the Township of Loyalist in the said Region, did commit first degree murder on the person of Baby Girl Pemberton, contrary to Section 235 of the Criminal Code;
b. That Kirsten Pemberton on or between the 1st day of February in the year 2015 and the 9th day of May in the year 2015 at the Township of Loyalist in the said Region, did dispose of the dead body of a child with intent to conceal that fact that she had been delivered of it, by concealing the body in plastic bags that were placed in the closet of her bedroom at her residence in loyalist township, contrary to Section 243 of the Criminal Code;
c. That Kirsten Pemberton on or between the 1st day of February in the year 2015 and the 9th day of May in the year 2015 at the Township of Loyalist in the said Region, a female person who, being pregnant and about to be delivered, with intent to conceal the birth of the child, failed to make provision for reasonable assistance in respect of that delivery and as a result thereof that child did die shortly after birth, contrary to Section 242 of the Criminal Code;
d. That Kirsten Pemberton on or between the 1st day of February in the year 2015 and the 9th day of May in the year 2015 at the Township of Loyalist in the said Region, did fail without lawful excuse to provide the necessaries of life to Baby Girl Pemberton a person under her charge and unable, by reason of age to withdraw from such charge and to provide herself with such necessaries of life, thereby endanger the life of Baby Girl Pemberton, contrary to Section 215(2)(b) of the Criminal Code;
[2] Since Ms. Pemberton is facing a charge of First Degree Murder, a bail application must be heard by a Superior Court Judge.
[3] The Crown opposed the application.
[4] I heard the evidence of Dr. Varley (Psychiatrist), Detective Tucker (investigator, led by the Crown), the accused, her mother Alicia. And grandfather, Gerald Greening.
[5] Dr. Varley met with the accused for three hours at the Quinte Detention Centre, and her mother by telephone for an hour. He formed the opinion that the accused poses a substantially elevated risk of suicide “that could safely be managed through admission to a psychiatric hospital with a locked ward for further evaluation and potential treatment” – namely the psychiatric ward at the Brockville General Hospital. He formed the clinical impression that the accused was being truthful with him. Although the accused is willing voluntarily to participate in the treatment, he said that if she withdraws her consent, an involuntary certificate would occur. With renewals, this would provide an additional six months.
[6] He said that on discharge, he would expect, if approved that the accused would go to her grandfather’s home and his supervision.
[7] Dr. Varley has had experience with severely mentally ill patients for the past five years, although he only recently joined the Brockville General Hospital. In the past, he has seen 500 prisoners who had not been previously assessed. He is not an expert in forensic psychiatry. He said he had experience with post-partum depression and mood disorders; and following evaluation for treatment, would treat the accused pharmacologically, with education, and with counselling. He said the accused had had suicidal thoughts for over a year but they intensified over the past couple of months. At the point of her discharge, he proposed – if this Court orders – that Kirsten be released to her grandfather and her mother. Following discharge, he said he anticipates follow-up treatments in the Kingston area.
[8] Dr. Varley noted that Kirsten seems very engaged with the treatment plan, and has a very supportive family.
[9] He said that there is currently a bed available; however, if by the time of her release there is no bed, then he suggested she remain detained until a bed is available, and then on notice to the Crown, so her mother Alicia, can drive her to Brockville General Hospital from her place of detention.
[10] He said the accused was not a risk to the general public and has no history of aggression. He suggested at the point of discharge she should be released to her grandfather and her mother. He said there is no risk of the accused fleeing. She has an engaged and supportive family. He also suggested that the accused meet with a family physician for contraceptive purposes so that any such condition, if imposed, could be met.
[11] Under cross-examination, Dr. Varley said that the accused had had suicidal thoughts for over a year but they had intensified over the past couple of months. She had thought about suicide before she was charged.
[12] Detective Tracey Tucker is the lead investigator, and learned from the accused’s grandfather that the baby’s corpse had been found in their closet. She interviewed the accused’s mother, the grandfather, and the accused herself on two separate occasions.
[13] The accused’s mother, Alicia, told Detective Tucker that she had believed that the accused has been pregnant because she seemed to have gained weight and she had noticed an absence of used sanitary pads. She had asked the accused, and she said that she had been putting the pads in another disposal.
[14] The accused’s bedroom was on the second floor of the house in Napanee while her parents had moved their bedroom to the ground floor and lived on the ground floor. The upstairs was unheated except for a small heater in the accused’s bedroom.
[15] She told Detective Tucker, that prior to the accused’s departure for Lake Louise, she had noticed an odour coming from the accused’s second floor bedroom. She asked had asked the accused if she had rotten food in her room. She said ‘no’ and closed the door.
[16] Alicia told Detective Tucker that a couple of weeks before the accused left, they had a discussion about the accused’s previous abortion. Alicia found out from a roommate of Kirsten’s and was concerned about Kirsten.
[17] On May 1st, Kirsten left for Lake Louise, and Alicia checked Kirsten’s room for the smell. She removed a garbage bag. She had been in her room looking for telephone bill because of large unknown charges.
[18] She told Detective Tucker, that May 9th the smell had been getting worse, so she went up to the bedroom and found a garbage bag in the back of the closet. She opened it; saw a sheet wrapping something and a pink liquid. She telephoned her father to come over. After he arrived, he opened the bag, unrolled the sheet and saw a full term baby with some decomposition. She telephoned her husband who was away working, and they called the police. They believed the accused was the mother.
[19] Detective Tucker arranged a search warrant and seized sheet, bedding, the corpse, a pregnancy test (which was apparently linked to the earlier pregnancy), and used sanitary pads. She found no evidence of child care products such as bottles, diapers etc.
[20] In the meantime, May 11, 2015, the accused was arrested by the RCMP at Lake Louse for “concealing the body of a child”.
[21] Detective Tucker went to Lake Louise, cautioned and questioned the accused during which she allowed the accused to speak to her mother on the telephone.
[22] The accused told Detective Tucker she was unsure if the baby had been alive when it was born. She said she had the baby the Friday night and wrapped it in a sheet. She didn’t look at its sex – then she placed the baby in a bag – then added other bags as the smell worsened. She had left the bloody sheets on the bed. She told Detective Tucker she assumed her mother would find the baby – and then it would all be out in the open.
[23] Detective Tucker questioned the accused a second time and told her that a murder charge had been added. The accused told her that she thought she had been pregnant but just didn’t believe it. She said the baby just “fell out” while she was watching TV about 9 p.m. After it was born, it lay against her back, it was alive, it cried. She held the baby’s head. She wrapped ‘her’ in a sheet and sweatshirt. Then the baby stopped crying. She apparently told Detective Tucker that covering the baby would cause the baby to stop breathing. At about 4 a.m. the baby was no longer alive.
[24] Detective Tucker questioned her about suicidal thoughts. The accused told her that she had wanted to stop breathing herself; and had thought about lying in a bath under the water. She told Detective Tucker about the previous pregnancy and abortion.
[25] Detective Tucker obtained the accused’s Facebook page to which she regularly posted. There was no disclosure or chatter on the Facebook page about her pregnancy or about suicide.
[26] After the accused’s arrest, she was videotaped continuously while incarcerated. This videotaping resumed after she arrived back in Ontario.
[27] Detective Tucker said the accused was upset during the identification process but then calmed down. She conversed with guards and seemed okay.
[28] Initially, the accused was on 10 minute suicide watch, then 15 minutes, and then reduced to ‘enhanced’. Dr. Scott initially looked in on her three times a week.
[29] An autopsy report by Dr. Alkenbrack concluded that there was “no anatomically evident cause of death” of the baby; and he was unable to determine whether the baby was born alive or not.
[30] The Defence, on whom the onus rested, called the accused. She confirmed her consent, and agreement to attend Brockville General Hospital if ordered; and that she would take any medications, and sign any consents for release of her medical information to the Courts. She said she agreed to live with her grandfather if this was ordered; and would stay there while following any rules. She said she understood that if she broke the rules she would go back to jail.
[31] The accused told of the abortion she had in January, 2014, that she didn’t tell her parents; and that she got very sick and didn’t know how to ask for help. She said that when her mother found out from her roommate about the abortion, her mother did not get angry with her but was very supportive. The accused said that while she was in detention after her arrest, her mother and her grandparents came to visit her three times per week – every visiting day. She described her stay at Quinte – as being in a concrete cell with a concrete pad, and some blankets for two weeks. She was given a white gown to wear. Next she said she was moved to another cell with a green outfit, socks, and colouring books. Dr. Scott came to visit her Wednesdays and asked her how she was. She came off suicide watch because she began to feel safe. She said that prior to leaving for BC, she had spent time with her grandparents. Her grandfather had helped her to find a job.
[32] Alicia Pemberton was proposed as a surety along with Gerald Greening, the accused’s grandfather. Alicia is the accused’s mother. She said she understood it would be her responsibility to ensure that the accused was to comply with any conditions. If there was a breach, she said she would call the police immediately. She said she would expect the accused would hold a grudge against her if she found it necessary to call the police. Alicia described the circumstances of finding the fetus in the garbage bag and asking her father (Mr. Greening) to call the police. She said she knew that the accused would be arrested, and she was concerned about Kirsten’s state of mind. Alicia has cooperated with the police in their investigation.
[33] Alicia said that she would not be returning to her usual job in September so she would be available to be a surety for Kirsten. She also said she thought Kirsten would be more comfortable at her father’s home in Bath, because of her traumatic experience at her home in Napanee which is a 10 to 15 minute drive. She said that her father, Gerald Greening, is licenced to drive, and that between them they could provide 24-7 supervision of the accused. She said she has visited the accused at the detention centre the maximum of three times per week, and that several times she was permitted to stay with the accused for longer than the permitted half an hour.
[34] She said that if the accused were released into her supervision, she would ensure that Kirsten attended all appointments. She also said she feels confident that the accused would comply with all conditions – and that Kirsten has been truthful with her.
[35] The bail hearing was adjourned to allow Dr. Chan of Providence House to conduct a psychiatric examination of Kirsten, and report to the Court. This was extended once to allow for completion of the report which was delivered to the Court August 26, 2015, when the hearing was to be spoken to by counsel. Dr. Chan in his report of August 26, 2015, concluded that s.16 of the Criminal Code of Canada was not implicated, but that s.233 of the Criminal Code of Canada – infanticide may be applicable. Dr. Chan found that the accused “has demonstrated a range of disassociative phenomena, which has been captured in the diagnosis of Depersonalization Derealization Disorder. The earlier trauma of the abortion is noted, but she did not fit fully a post-traumatic diagnosis though she has some features. Her personality functioning is disordered and this was well developed by the psychometric testing. Since arrival here over the past two months, she has manifested psychotic symptoms which I believe to be genuine and I have addressed those with benefit.(sic)”
[36] On resumption, September 4, 2015, Gerald Greening, the accused’s grandfather was called. He is 79 and lives with his wife, the accused’s grandmother, to whom he has been married for 56 years. They live in their own home in Bath, a 20 minute drive from where Alicia lives. His wife Dorothy is being treated for cancer and requires monthly visits to the hospital. He is semi-retired and works part time installing security card lock systems for hotels, and businesses. He has been engaged in this work for 30 years, and required bonding for some of the installations. He described himself as being in the security field requiring a high degree of trust which he has enjoyed.
[37] Gerald acknowledged his responsibilities if he were accepted as a surety, and described the circumstances of calling the police when the baby’s body was found. He cooperated fully with the police, and gave them statements including video statements. He understood his role as a surety and the consequences of a breach. The proposal is for the accused to reside with Gerald and his wife at their home in Bath full time as house arrest subject to attending medical and court dates. She would have her own bedroom. He explained that if he had to leave the home, then Alicia would drive to his house so that one of them would always be with the accused. He said that while the accused was at Quinte Detention Centre, one or more of him, his wife and Alicia visited the accused every visiting day. While she was staying at Providence House they visited every second day. He observed that while she appeared to be ‘not there’ previously, she now seemed more focussed.
[38] Gerald said that he had a relatively close relationship with the accused while she was growing up. He said his comment to the police about the accused being a screw-up related to her time at St Lawrence College where she accomplished very little. Overall, he felt that the accused had been honest with him.
[39] The defence position is that the accused should be released on her recognizance with Alicia and Gerald as sureties with the condition that she reside with Gerald under house arrest subject to medical and court appointments. He noted that Dr. Varley had advocated having the accused admitted to the Brockville General Hospital in a locked ward closely supervised situation, and that should be an option under the plan of release. He also noted Dr. Chan’s opinion that the accused was not a threat to anyone else or to herself.
[40] He contended that while the offence was the most serious in law, the Crown evidence was not strong and further that Dr. Chan had suggested the medical evidence was present for an infanticide defence argument. He further contended that the maximum penalty if infanticide is successful is five years; but that in practice a suspended sentence would likely be imposed.
[41] The Crown’s position is that the accused ought not to be released, that she is untrustworthy, has lied to Gerald and Alicia, and could not be counted on to comply with any conditions of release. Furthermore she contends that the Crown’s case is a strong one based on the accused’s own admission that she suffocated her baby knowing it would die. The victim was most vulnerable.
[42] In summary she contends that the plan of release places the accused in the same situation she was in at the time of the offence, that the factors to be considered under the tertiary ground are not shown to have met the onus on the defence, that detention is not necessary to maintain confidence in the administration of justice.
[43] I conclude that the defence has met the onus and the accused should be released on her recognizance subject to certain conditions, sureties’ place of residence and other matters that I shall enumerate.
[44] The Crown’s case is not a strong one. Not only is there no evidence of cause of death, the autopsy is unsure that the baby was born alive. The Crown’s reliance on the accused’s statement is the only evidence; and that evidence, if admitted does not establish cause of death. If it was found that the accused intentionally caused the baby’s death, there is then the issue of infanticide. That defence was raised not by counsel, but by Dr. Chan following his detailed examination of the accused over the last several weeks, as an issue he expects will be explored.
[45] I was impressed with Dr. Varley who proposed a treatment program necessary for the accused going forward, in secure facilities at a hospital. It was his opinion that after her discharge, he would expect that she would, if approved, live with her grandfather under his supervision and that of her mother. It was his opinion that the accused was very engaged with the treatment plan and that she had a very supportive family. It was further his opinion that the accused has no history of aggression or violence, and that there is no risk of her fleeing. While acknowledging that she had had suicidal thoughts that had intensified more recently, he said these suicidal thoughts preceded her arrest.
[46] The baby’s corpse came to the attention of the police precisely because Gerald and Alicia called the police promptly after their discovery. There was no hesitation. At the same time, they have been very supportive and concerned for her. No one has suggested that they would be inappropriate or inadequate as sureties. I am satisfied that they would be excellent sureties. While the Crown correctly points out that any release plan is dependent on the accused to comply with the conditions, I am satisfied that, knowing what they know now, and knowing that the accused would be promptly returned to detention if there was a breach, Gerald and Alicia would be more than capable to ensure that the release conditions are obeyed by the accused. I am reassured also by the medical supervision and treatment proposed by Dr. Varley that the accused will obey the conditions. I do not accept the argument that the release plan mirrors the accused’s situation at the time of the alleged offence for the foregoing reasons.
[47] There is no contention that the primary or secondary grounds apply to the accused. This bail review concerns the tertiary ground. The factors that I am required to consider as a result of section 515 (10) (c) CCC, and as a result of R v St-Cloud, [2015] S.C.J. No. 27, [2015] A.C.S. no. 27, 2015 SCC 27, are as follows: the strength of the Crown’s case, the objective gravity of the offence, circumstances surrounding the commission of the offence including vulnerability of the victim, the potential likelihood of a lengthy prison term. These factors must then be balanced one to another.
[48] I have indicated that the Crown case is not a strong one. The objective gravity of the offence is the most serious known to law. The circumstances of the alleged offence include the important fact that the baby was a most vulnerable person, and in a most vulnerable condition. However the circumstances must also include the mitigating fact of a possible infanticide defence. In this case it has support from the accused’s treating psychiatrist.
[49] The accused is a young person with no history of violence or aggression. Evidence of her mental state prior to and at the time of the alleged offence suggests that she was lost. The death of her baby was clearly a heavy blow from which she is struggling to recover.
[50] The accused is presumed innocent.
[51] To see this accused in a detention centre such as Quinte Regional for the next two odd years while this case moves through the courts does not meet Canadians’ expectation of fair treatment of one of our citizens. I am well satisfied that release of the accused under strict conditions pending her trial would in fact give comfort to the public concerning the administration of justice.
[52] The accused is to be released on the following conditions:
a. Keep the peace and be of good behaviour.
b. Deposit her passport with the Ontario Provincial Police – Napanee Detachment. If she has no passport, she is prohibited from applying for one.
c. Reside at 40 Abbey Dawn Drive, Bath, Ontario unless admitted to a hospital under the care of a duly qualified medical practitioner in which case you must notify the Napanee Detachment of the Ontario Provincial Police to that effect within 24 hours of such admission, but otherwise no change of your residence without prior Court ordered bail variation.
d. Attend for and actively participate in such assessment, treatment and counselling as may be arranged for you by your Sureties or as may be prescribed or recommended for you by your health care providers.
e. Remain upon the property at 40 Abbey Dawn Drive, Bath, Ontario at all times EXCEPT:
i. to attend Court;
ii. to attend for assessment, treatment and counselling as provided for herein;
iii. while an inpatient in a hospital;
iv. for medical emergencies involving yourself or an immediate family member;
v. while you are in the direct physical presence of one or more of the following persons: Victor Gerald GREENING, Dorothy GREENING, Alicia PEMBERTON, or John PEMBERTON.
f. Seek the advice of a duly qualified medical practitioner regarding the implementation of, and implement a medically approved contraceptive regimen your compliance with which is capable of being supervised by your Sureties.
g. Take all medications as prescribed by your health care providers and in the presence of at least one of your Sureties.
[53] Alicia Pemberton and Gerald Greening as sureties shall each deposit a $10,000 bond. The accused shall deposit a $1,000 bond.
Honourable Justice Timothy Ray
Released: 2015-09-04
COURT FILE NO.: CR-15-138-00BR
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KIRSTEN PEMBERTON
REASONS FOR decision
RAY,J
Released: 2015-09-04