Court File and Parties
Court File No.: 61/18 Date: 2018-09-26 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Samantha June Richards
Counsel: K. de Koning, for the Crown P. Brown, for the Defendant
Heard: July 20, 2018
Before: Grace J.
A. Introduction
1The protection of children is a sacred responsibility of our courts. As Moldaver J.A. (as he then was) wrote in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.) they “are at once our most valued and our most vulnerable assets”.
2Thankfully, society’s concern for and interest in the well-being of children is intense and enduring. Few events could cause more horror than the mid-June, 2016 news that the little, lifeless body of a newborn baby boy had been found in a dumpster near London, Ontario’s downtown core. In such circumstances, there is an immediate, palpable and profound sense of outrage in the community and an overwhelming and urgent need to understand what and how it happened. [1]
3Many questions will remain unanswered long after this tragic case comes to an end. I will focus on what is known for certain.
4In the aftermath of that tragic discovery, investigating officers reviewed images captured by area surveillance cameras. The identity and many of the movements of the person who disposed of the baby’s body were quickly determined. On Saturday, June 18, 2016, Samantha Richards was arrested in another municipality in Southwestern Ontario. In time she was turned over to the London Police Service. Criminal charges were laid.
5Proceedings in the Ontario Court of Justice culminated in a three-day preliminary hearing. Thereafter, this matter moved to this court when a two count indictment was filed on February 26, 2018.
6A second judicial pre-trial was held on May 18. Later that day, Ms. Richards gave notice of her desire to re-elect trial by a Superior Court Justice without a jury and entered a plea of guilty to count one of the indictment. That count alleged that on or about June 15, 2016 at London, Ontario, Ms. Richards disposed of the dead body of a child with intent to conceal the fact that she had delivered the infant, contrary to s. 243 of the Criminal Code. An agreed statement of facts had been settled by the parties. It was read into the record and filed.
7Based on the contents of the document, a finding of guilt was made, a conviction entered and a pre-sentence report ordered.
8The July 12, 2018 report was in hand when submissions were made on July 20. Decision was reserved until today. I start with a brief recap of the circumstances of the offence.
B. The Circumstances of the Offence
9On June 13, 2016, Ms. Richards gave birth to an unnamed baby in the bathroom of the residence she then occupied. The parties have agreed that death occurred shortly before or during childbirth. To be clear, the Crown accepts that the infant was deceased when delivered.
10The pregnancy – and birth – were concealed from all other persons. Post-delivery the body was hidden until left in the place found sometime during the late afternoon hours on June 15, 2016.
11Dr. Elena Tugaleva, a forensic pathologist, performed a comprehensive post-mortem examination. The baby was at or near full term, weighed a little less than three kilograms – just over six pounds for those who prefer the Imperial system. There was no evidence of injury or developmental abnormality. The baby was viable. The cause of death was stated to be “unascertained”.
12I turn to Ms. Richard’s personal circumstances.
C. The Circumstances of Ms. Richards
13The defendant was born on February 2, 1993. She was 23 years old at the relevant time and is now 25.
14Ms. Richards grew up in Amherstburg, Ontario. She has two siblings. Her mother and father separated when she was an infant. Her mother was the custodial parent. Access visits with her father ceased when Ms. Richards was only ten years old. A dark cloud hovers over some of his behaviour. Relationships with the balance of her immediate family – mother, twin sister, brother, step-father, sister’s partner and niece – are described as close. Ms. Richard’s mother presence and support for her daughter in this court has been conspicuous.
15Nothing in the offender’s past gave any indication that she would ever have any involvement with the criminal justice system.
16There is no history of alcohol or drug abuse. There is no prior criminal record. Ms. Richards had shown much promise in high school. She was community minded, athletic and an honour student.
17Ms. Richards first came to London to pursue her post-secondary education. However, she found the transition difficult and moved closer to home after completing one academic year.
18The defendant then entered a three year business and finance program at a Windsor based college. While there, she successfully juggled the course requirements and part-time employment. One semester remained when Ms. Richards accepted a summer position and returned to London shortly before the events I have described.
19At the time of the offence, Ms. Richards was living in an upstairs apartment on Ann Street. Based on the activity found on her cell phone, the defendant knew she was pregnant. Why the pregnancy was concealed from others was addressed in the pre-sentence report. Ms. Richards told its author that she had suppressed a September, 2015 experience because she could not cope with it. In part she wrote:
I wouldn’t allow myself to think about it or talk about it. I tried to move forward like I had done before. A few months after I started to feel different. A few more months passed and I knew there was something wrong with me. Part of me always knew that it was because I was pregnant but I wouldn’t let myself accept it. Any time I would think about it, my mind would try and push the thought further down. Looking back…I think I knew if I accepted that I was pregnant I had to accept what happened in September, I had to accept what happened with my dad and I couldn’t.
20The person now before the court, is a shell of what existed before. Ms. Richards has not continued her education or pursued employment. According to members of her immediate family, friendships ended. The defendant rarely left her residence. The author of the pre-sentence report said she found Ms. Richards polite but unstable and on the verge of panic attacks. Much of the information the defendant provided was in written form because she found it too difficult to express it verbally. Much needed assistance from psychologist Dr. Annette Dufresne has been provided since mid-June, 2018.
21In a July 16, 2018 letter, Dr. Dufresne said that a good base for further therapeutic work had been established. Efforts had already been made to try to determine what had happened and why. Dr. Dufresne had learned that Ms. Richards has a history of avoiding things that would otherwise overwhelm her. In part the psychologist wrote:
In looking back, she struggles to understand why she did not seek medical care throughout her pregnancy, and did not seek other assistance or support. She describes her choices to somehow remove the deceased infant from her surroundings as her ill-conceived attempt to not have to think about it. She struggles a great deal with how she can ever incorporate her actions into a sense of who she is as a person that she will be able to live with.
22That fits with comments Ms. Richards made to the probation and parole officer who authored the pre-sentence report. Notably the defendant wrote:
Nothing that happened to me will ever make what I did okay. I was supposed to protect him. Instead I was weak and selfish. I don’t know if I’ll ever be able to forgive myself for what I did. It will always be the biggest regret in my life.
23Elsewhere, she described her ongoing feelings of shame, guilt and self-hatred.
24I turn to the applicable legal principles.
D. The Applicable Principles
25A minimum sentence for the subject offence is not prescribed. However, the maximum sentence that may be imposed is imprisonment for a term not exceeding two years.
26The statutory purpose and principles of sentencing are not in dispute.
27The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (i) to denounce unlawful conduct and the harm done to victims; (ii) to deter the offender and others from committing offences; (iii) where necessary, to separate offenders from society; (iv) to assist in rehabilitating offenders; (v) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.
28The court shall also take into account the following principles: (i) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; (ii) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances; (iii) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (iv) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (v) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.
29The determination of an appropriate disposition is highly individualized. The court must weigh the principles and objectives of sentencing in a manner that reflects the circumstances of the case: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43.
E. The Parties’ Positions
30Submissions were ably made by both counsel. They agree that the facts of this case are so exceptional that a custodial sentence should not be imposed.
31On the defendant’s behalf, Ms. Brown argued that the court should grant a conditional discharge under s. 730(1) of the Criminal Code. The relevant portion of that section reads as follows:
Where an accused…pleads guilty to…an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court…may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged…on the conditions prescribed in a probation order made under subsection 731(2).
32The defence argument follows this path. Ms. Richards was a vibrant and successful person who would not have offended but for undiagnosed and untreated mental health issues. Without trying to minimize the seriousness of the offence, Ms. Brown asks the court to look closely at its impact on her client. The defendant has lost friends and relationships with some of the members of her extended family. She has essentially sentenced herself to house arrest. Her life has stalled completely. She is ashamed and full of self-loathing.
33The road back is a long and uncertain one. Ms. Richards’ post-secondary education continues to be incomplete. She is presently incapable of working. She has no source of income and is completely reliant on her mother’s financial support. Assistance from a mental health professional has finally been sought. Progress is slow. Treatment will continue indefinitely. No defendant could be more remorseful and less likely to be re-involved in the criminal justice system. Ms. Richards will bear the internal scars of what she has done forever. The question is whether she will be able to manage them and become a functioning and productive member of society again. Her rehabilitation is, the defendant’s counsel argues, in the public interest.
34Mr. de Koning appears for the Crown. He described this case as unique and tragic. The issue is whether a conditional discharge is warranted as the defence submits or whether the court should, instead, suspend the passing of sentence and direct that Ms. Richards be released on the conditions prescribed in a probation order pursuant to s. 731(1)(a) of the Criminal Code.
35Mr. de Koning noted that s. 243 of the Criminal Code has only been considered in a small number of cases. It is clear from those authorities that the provision’s purpose is to ensure that the timing and cause of an infant’s death can be investigated: R. v. Levkovic, 2013 SCC 25 at paras. 49, 58 and 68. As Fish J. wrote at para. 66 of that case, s. 243 works in conjunction with other provisions of the statute and:
…simply ensures that the law can respond to criminal conduct against newly born infants in cases where the evidence does not establish that death occurred post-birth.
36It has also been suggested that the section helps ensure that the body of a deceased child is disposed of in a dignified and respectful manner: R. v. Geraldizo, 2016 BCPC 240, supra at para. 26;
37Less than ten decisions have been uncovered that involve an offence under that section of the Criminal Code. As is to be expected, each fact situation varies as does the sentence imposed. However, a conditional discharge has never been the disposition. Conditional sentences were ordered in R. v. Geraldizo, 2016 BCPC 240, R. v. Taylor, [2011] B.C.J. No. 704 (Prov. Ct.) and R. v. Jones, [2005] B.C.J. No. 1426 (Prov. Ct.).
38The Crown does not take issue with the defence submission that a conditional discharge would be in Ms. Richard’s best interests. It pauses at the second stage of the analysis. Can it truly be said that such a disposition is not contrary to the public interest? The Crown leaves that question for the court to answer.
F. Analysis and Decision
39With that background and those submissions, what is the appropriate disposition?
40I start with the first prerequisite set forth in s. 730(1) of the Criminal Code: Ms. Richard’s best interests.
41The relevant considerations were helpfully addressed by Durno J. in R. v. To, [2015] O.J. No. 893 (S.C.J.) at para. 30:
As regards the first criteria, that a discharge is in the best interest of the offender, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender’s rehabilitation through correctional or treatment centers required, except to the same extent. Normally the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter them from future offences or to rehabilitate them, and …the entry of a conviction may have significant adverse repercussions…However, it is not essential that there be significant adverse consequences.
42The Crown concedes that this case meets that threshold. I agree. Until this profoundly tragic event, the offender’s character was unassailable. Emotional and psychological issues were at play. Ms. Richard’s remorse is at the highest level. The process of trying to restore the mental health of the defendant is now underway.
43Whether a conditional discharge would be contrary to the public interest is the issue that remains. Several principles emerge from R. v. To, supra. Those that are relevant here follow:
a. First, conditional discharges are not restricted to trivial matters; b. Second, they may be appropriate dispositions when the offender has acted entirely out of character. Examples include conduct that occurred while the defendant was under unusual pressure or stress; c. Third, if it is important that the sentence imposed deter others, a conditional discharge may not be appropriate. [2]
44The seriousness of the offence must also be factored into the mix: R. v. Montgrand, 2008 SKCA 50 at para. 7.
45A conditional discharge was sought in R. v. Taylor, supra. In that case, the then twenty year old defendant gave birth to a full term baby boy. When her partner awoke, she told him that she had miscarried. However, the defendant later told the police that the baby had been born with the umbilical cord wrapped around his neck. No medical assistance was sought.
46The baby was wrapped in a towel, placed in a garbage bag and then in a dumpster. As here, there were mitigating circumstances. Ms. Taylor was youthful and did not have any prior involvement with the criminal justice system. She pled guilty. A number of reports were filed. One report concluded that the offender represented a low risk to reoffend. Another was less favourable. It suggested that Ms. Taylor “appeared to be emotionally disconnected from her own actions and relieved with the outcome of the situation until her arrest.” Even then, she failed to demonstrate any remorse.
47While satisfied that a conditional discharge would be in the defendant’s best interests, the case foundered at the second stage of the analysis. Werier J. said at para. 38:
I believe that the sentencing principles of denunciation and deterrence and the need to promote a sense of responsibility in the offender and an acknowledgement of the harm done are all sentencing factors which are applicable in this case. I do not find that these factors would be sufficiently addressed by a conditional discharge. The circumstances which led Ms. Taylor to dispose of the body of her son in order to conceal the fact that she had given birth are serious and significant.
48That was also the result in R. v. Geraldizo, supra. In that case the defendant mother first denied being pregnant but then admitted that she gave birth and disposed of the deceased baby by placing him in a recycling waste bin. An autopsy resulted in a determination that the infant was full term and had taken at least one breath. Physical development of the baby was normal. All organs were fully formed and healthy. No traumatic injuries were noted. There was no indication of asphyxiation. Cause of death was, as here, undetermined. The Crown did not dispute two submissions made on behalf of the accused in that case: first, that the mother did not know that she was pregnant until the night she gave birth and secondly, that she did not cause the baby’s death.
49As in this case there were many mitigating circumstances: an early guilty plea, no prior record, and genuine remorse. Steps toward rehabilitation were already ongoing.
50In considering the request for a conditional discharge, Chen J. concluded such a sentence would be in the accused’s best interests. However, the case failed to meet the second criteria. At para. 35 the sentencing judge wrote in part:
…a conditional discharge would not adequately address the principles of denunciation and deterrence, no matter what conditions it contained. Given the societal interests of s. 243, including protection of the public – in particular children, it would not be appropriate for a conviction not to be registered.
51Chen J. concluded that a fit sentence was a six month conditional sentence followed by an eighteen month probation order. As mentioned earlier, the Crown does not seek a custodial sentence – even one served in the community.
52However, I agree that denunciation and general deterrence must be considered in determining whether a conditional discharge would be contrary to the public interest.
53Writing on behalf of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J.C. said at para. 102:
Denunciation is the communication of society’s condemnation of the offender’s conduct.
54The Chief Justice quoted from an earlier decision where he had written:
In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [3]
55The circumstances of this offence are troubling. Ms. Richards knew she was pregnant. We now know that the pregnancy was unwanted and the product of circumstances that were deeply upsetting to the defendant. Clearly she was wrestling with deep-rooted and underlying emotional and psychological issues. Those are important facts.
56However, there was another life at stake. Its existence was kept secret – throughout a full-term or almost full-term pregnancy. No medical guidance or assistance was obtained at any time. A plan was in place to deliver the baby in secret and without the involvement of any other person. It is no surprise that things did not end well.
57The court applauds Ms. Richards’ decision to accept responsibility for her actions and is affected by the level and sincerity of her regret. The court genuinely hopes that she will forgive herself one day – because most fair-minded members of society will do so. However, the past cannot be undone. Time does not unwind. The crime is a serious one. Society’s code of acceptable behaviour was breached in a fundamental and distressing way. The sentence imposed must contain an element of denunciation. The few who might be tempted to dispose of a newborn without the knowledge or involvement of the state must be deterred. The court’s commitment and devotion to children must transcend the mere expression of sentiment. In my view, a conditional discharge is too lenient a disposition. It is contrary to the public interest. It would bring the administration of justice into disrepute.
58Having considered the nature and circumstances of the offence, its gravity, Ms. Richard’s legal responsibility for her actions, the personal history and present situation of the offender, the many applicable mitigating circumstances and the purpose and principles of sentencing as drawn from the authorities and the Criminal Code, I have concluded the following is a fit and just sentence:
i. The passing of sentence is suspended; ii. Ms. Richards is to be released on the conditions prescribed in a probation order. Same shall operate for a period of two years and shall contain the following terms pursuant to s. 732.1(2) and (3) of the Criminal Code: a. Ms. Richards shall keep the peace and be of good behaviour; b. She shall appear in court when it requires her to do so; c. She shall report to a probation officer within three business days and thereafter when required and in the manner directed by the probation officer. The probation order should be supervised in Windsor given Ms. Richard’s place of residence; d. She shall notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; e. She shall enroll and actively participate in counselling, treatment programs and/or assessments as are recommended or directed by a probation officer including in relation to stress management, avoidance strategies, grief and/or post-traumatic stress; f. She shall sign such releases and other forms as are required by a probation officer from time to time to monitor her entry to, attendance and progress at any such counselling, treatments and/or assessments; iii. Pursuant to s. 737 of the Criminal Code, Ms. Richards shall pay a victim surcharge of $200 within one year; iv. Count two of the indictment is marked withdrawn.
“Justice A.D. Grace” Grace J. Delivered: September 26, 2018
Footnotes
[1] Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008), vol. 1, at p. 4. [2] R. v. To, [2015] O.J. No. 893 (S.C.J.) at paras. 31 and 32. [3] The passage is drawn from R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 81.