R. v. Pemberton, 2019 ONSC 4206

COURT FILE NO.: CR-16-0164 DATE: 20190710

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – KIRSTEN PEMBERTON Defendant

COUNSEL: Monica Heine, for the Crown Paul Blais and Dawn Quelch, for the defendant

HEARD: 10, 11 and 12 June 2019 at Napanee

MEW J. (Orally)

REASONS FOR SENTENCE

[1] Chloe Pemberton was born on 20 February 2015 in the bedroom occupied by her mother, Kirsten Pemberton, in the home which Ms. Pemberton shared with her parents, Alicia and John Pemberton, in Loyalist Township. Ms. Pemberton was 23 years old at the time.

[2] Within hours, if not minutes of her birth, Chloe Pemberton’s life had already ended. On 9 May 2015, her decomposing remains were found in a plastic garbage bag in the closet in Kirsten Pemberton’s bedroom.

[3] Kirsten Pemberton, you were charged with first degree murder of your daughter and with three other offences arising from the events that followed Chloe Pemberton’s birth.

[4] On 10 June 2019, you pleaded guilty to infanticide and disposing of the dead body of your child with intent to conceal the fact that you had been delivered of her.

[5] Inevitably, the determination of an appropriate sentence for the crimes committed by you requires a weighing of the purposes and principles of sentencing and, in particular, of, on the one hand, societal denunciation of crimes involving culpable homicide of a child and, on the other, of the rehabilitation of a young woman whose mind was disturbed at the time of her child’s death.

The Facts

[6] A synopsis of the pertinent facts prepared by the Crown was accepted by you as being accurate. In addition, the parties consented to evidence received by the court during the course of a contested application on the voluntariness of statements given by you to the police being included as part of the evidentiary record on sentencing. I was satisfied that the record supported findings of guilt on both of the charges that you pleaded guilty to.

Circumstances of the Offence

[7] At the time you gave birth to your daughter, you were alone in your bedroom. You had not told your parents, or anyone else, that you were pregnant. Indeed, when, in December 2014, your mother, Alicia Pemberton, noticed that you were putting on weight and that the stock of sanitary supplies in the residence was not decreasing, she asked you if you were pregnant. You lied to her and said that you were not.

[8] After you were arrested, initially for the offence of concealing the body of a child (although you were also cautioned for murder), you confirmed during the course of a videotaped statement that your baby had been alive and had cried and moved. You placed a sheet and sweatshirt on top of the baby and knew that by doing so, the baby would be unable to breathe. You re-enacted what had happened using a stuffed animal and tea towels.

[9] You subsequently advised a nurse at the Quinte Detention Centre that you thought you had delivered the placenta. In your videotaped statement to the police, you said that had left the baby’s umbilical cord attached. You said that you did not see what sex the baby was and were only told later that the child was a girl. You placed the baby beside you on the bed and lay there for a period of time. You then wrapped the baby in a sweatshirt and a sheet. You put the baby, wrapped in the sheet and sweatshirt, in a plastic bag, which you put in your closet.

[10] You told no one what had happened.

[11] You confirmed that you had not received any medical treatment before, during or after the birth of the baby.

[12] Sometime over the period of March and April 2015, you put the first bag, containing the baby’s body, into a second bag, because it had started to smell.

[13] On 1 May 2015, you left for Banff, Alberta, where you had secured a job. Sometime before you left for Alberta, your mother had smelled a foul odour coming from your bedroom. She asked you if you had rotten food in your room. You said you did not and closed your bedroom door.

[14] Your mother continued to smell the foul odour and, on 9 May 2015, she decided to investigate the source of the smell. She located a garbage bag in the closet in your bedroom. She took the bag outside of the residence and briefly looked inside. She observed a sheet with pink fluid inside the bag and was afraid to look any further. Your mother contacted your grandfather, Gerald Greening, who attended the scene to provide assistance. He looked inside the garbage bag and observed the decomposing remains of a full term baby. Shortly afterwards, Gerald Greening contacted the police.

[15] You were arrested in Banff, Alberta on 11 May 2015. You were subsequently transported back to Ontario.

[16] On 11 May 2015, an autopsy was performed on the deceased infant. No cause of death could be determined due to the decomposed state of the infant. The pathologist, in consultation with a paediatric radiologist, confirmed that the baby was a full term female.

[17] A search of the contents of your personal mobile telephone and laptop computers disclosed that in the months before the offences, you had used search engines to find out about pregnancy, babies and motherhood. In December 2014 and January 2015, you had been in email contact with a local private adoption agency, although you had not maintained contact. Your searches included such subjects as how to cope and how to not feel guilty after an abortion; ways a baby messes up your relationship; adopted baby dies after weeks when forced to return; and police give motive in dead baby case.

[18] You also researched the possibility of a surgical abortion not working and if one could get pregnant two weeks after having an abortion.

[19] As a result of information provided by you and production orders that were made to obtain your medical records, it has been established that you had a surgical abortion in January 2014. There was no record of you having obtained any medical assistance following that abortion.

[20] On 4 April 2015, you created a Word document that appeared to be similar to a journal entry in which you stated that fifteen months after having an abortion, you were feeling humble, present and aware.

[21] After your initial detention by the Royal Canadian Mounted Police in Alberta and your subsequent transfer to Ontario, where you were briefly in police custody, you spent 42 days in custody at Quinte Detention Centre in Napanee. You were subsequently ordered by Mr. Justice Ray of this court to undergo assessment at the Providence Care Centre Mental Health site in Kingston.

[22] On 4 September 2015, after the completion of psychiatric and psychological assessments, you were released on bail. Since that time, you have resided with close family members and have been required to remain at their properties unless in the direct physical presence of one or more designated relatives or your support worker (there are also the usual exceptions for attending court, treatment, counselling or medical treatment or emergencies).

Circumstances of the Offender

[23] In addition to the evidence already referred to, the court received assistance from your mother, Alicia Pemberton, who testified at the sentencing hearing.

[24] You do not have a criminal record.

[25] You began to struggle educationally when you went to high school. A psychoeducational analysis identified a learning disability. At the same time, your older brother was having quite serious mental health challenges of his own. Your parents were necessarily somewhat focused on that.

[26] After graduating from high school, you took a year off. You then applied to St. Lawrence College in Kingston. You struggled at college and eventually discontinued your studies. However, you wanted to stay in Kingston and got a part-time job working at a restaurant there. You had moved into a house where you were sharing with two other young women. At around this time, you decided to look for work in Alberta. You told your roommates that you were going to leave. This led to a dispute of some sort about rent. Your mother intervened and, during the course of a telephone call with one of your roommates, your mother was told that you had recently had an abortion. At first, your mother did not believe what she was hearing. But then she spoke to you and you admitted to her that you had, indeed, had an abortion.

[27] Your mother was concerned that you had not received any counselling following your abortion. She raised this concern with you. Apparently, you had been given the paperwork for counselling. But you said that you felt a “calling” to go out west. You left for Alberta in February 2014 and remained there until October. You stayed in regular touch with your mother at home.

[28] You returned to Ontario the weekend after Thanksgiving 2014. You apparently had a six week break between seasons. However, you elected not to return to Alberta. No explanation was given. Your mother said that she and your father hoped that you would get another job. In the meantime, your mother had observed that you seemed quiet, withdrawn, that you watched a lot of television and seemed to have no motivation to do anything else.

[29] In January 2015, you accompanied your grandfather to a job which he was doing in Ottawa installing electronic locking systems at a hotel. According to him, after a few days, you became whiny and bored and wanted to come home.

[30] It was after you returned from Ottawa that, noticing that you seemed to have gained weight, your mother asked you whether you were pregnant. You mother says that you looked her straight in the eye you told her you were not. It did not occur to your mother at the time that you might be lying to her. She said that it was not characteristic of you to lie.

[31] After what was described by Dr. Chan, the psychiatrist who, in August 2015, prepared a report as “some subtle pressure from her mother to find another job”, you got a job working at the front desk of a hotel in Banff. On 1 May 2015, your mother drove you to the Ottawa airport so that you could catch a flight to Alberta. She observed you after you had passed through security and thought that you seemed disoriented. Nevertheless, you got on your plane. After your arrival in Alberta, however, your mother became concerned about your ability to cope. She recounted how she had had to stay on the telephone with you as you went out to buy groceries because you did not seem to know what to buy. Despite those concerns, you were apparently able to then spend a weekend in Lake Louise without incident.

[32] In addition to the court-ordered period of assessment at Providence Care, you spent the period from 4 September 2015 (when you were released on bail) until 15 January 2016 as a voluntary patient in the Elmgrove Psychiatric Unit at Brockville General Hospital under the care of Dr. Kevin Varley.

[33] Around the anniversary of your daughter’s death, you became depressed and, according to your mother, suicidal, and you were briefly admitted to a psychiatric ward at Kingston General Hospital. There was also a further in-patient stay at Brockville from 2 June – 12 August 2016. The purpose of this second hospitalisation in Brockville was for you to undergo electro-convulsive therapy treatment. You had twelve such sessions over two and a half months. Your mother said that, as a result, she observed a marked improvement.

[34] You and your family have endured a number of other challenges and two significant losses since your arrest.

[35] After a number of months living with your grandparents, you moved to your parents’ home. Your grandmother had become unwell with cancer. Although she recovered, her tumours returned in the spring of 2017 and she died on 9 November 2017. Your grandfather also became unwell. He was diagnosed with bladder cancer in August of 2017. I am not told what his current status is, but I observed that he has been in court during your attendances last month, providing support.

[36] And then, tragically, your mother lost her husband and you lost your father to a sudden and unexpected heart attack whicin April 2019.

[37] When your grandmother was buried, there was a second ceremony to inter the ashes of Chloe Pemberton beside her.

[38] Although while on bail you have been subject to restrictions on your freedom of movement which your counsel describes as being tantamount to house arrest, during the last year or so, you have had the use of a mobile telephone. You have a Facebook account. Several hundred pages of printouts from your Facebook account were filed during the course of the sentencing hearing. You are engaged in social media contact with a number of friends. And at least one coffee date with a man you met online has occurred, although it was necessary for your mother to accompany you to this meeting.

[39] Your mother testified that you have never refused any counselling that has been recommended. You have expressed remorse for what happened. She says that you were very much engaged in the decision making which led to the remains of Chloe being interred alongside your grandmother. Your mother says that you would like to go back to school. But she feels that you are not yet ready to do that. She also feels that you are going to have to learn to go outside and to walk without being afraid. Your mother remarked how, because of bail restrictions, you have not been able to do simple things like take a bus without someone being there to go with you. It was acknowledged, however, that any variations to your bail conditions that have been requested have been consented to by the Crown, the implication being that if you had wanted to do more, you would have been able to.

[40] Both counsel addressed the medical opinions that were expressed during the course of the voluntariness hearing.

[41] Dr. Michael Chan is a general psychiatrist who has worked in forensic settings for 30 years. He works at Providence Care and was the author of a forensic in-patient assessment report dated 24 August 2015. Dr. Chan worked with Dr. Jan Looman, a psychologist, who undertook a psychological assessment of you to assist with diagnostic classification. Dr. Looman prepared a report on 14 July 2015 and provided a short updated comment on 14 October 2018.

[42] Dr. Kevin Varley also testified. He, too, is a general psychiatrist. He was initially retained to see you when you were at the Quinte Detention Centre to give an opinion about whether or not you had a psychiatric condition. He was then involved with your care at the Brockville Hospital.

[43] The Crown retained Dr. John Bradford, a forensic psychiatrist and a Full Professor in the Division of Forensic Psychiatry, Faculty of Medicine, University of Ottawa.

[44] Dr. Chan’s view, broadly stated, is that you were in a state of altered reality at the time you gave birth. He described this as you experiencing dissociative symptoms at the time of delivery and just around that period. He believed that you were not fully attending in your mind to what was going on, or to what he described as “the whole gravity of the situation”. Despite believing that your mind was “imbalanced” at the time, he was not prepared to conclude that your symptoms rose to the level of a psychosis.

[45] Dr. Looman’s testing, which Dr. Chan relied on, concluded that you were not feigning your symptoms or trying to make yourself look worse, psychiatrically, than you really were. He believed that you exhibited depersonalisation or derealisation but acknowledged that his testing could not pinpoint whether that was your status at the time that the offences were committed.

[46] Both Dr. Looman and Dr. Chan knew that the nursing staff at Providence Care believed that you were feigning symptoms or behaviour. But neither of them seems to have attached much weight to that.

[47] Dr. Chan did not view the video-taped statements that you gave to the police. And Dr. Looman was not sure which parts of the videotaped interviews he had viewed and, ultimately, when presented with evidence that he had not previously been aware of ( e.g. that you had visited certain Internet sites when you were pregnant) conceded that you could have been lying to him.

[48] Dr. Varley offered the opinion that you suffered from both dissociative disorder and psychosis. When he assessed you in September 2015 he said you were “clearly in a psychotic state. She was still having active delusions and hallucinations, some dissociative phenomenon throughout, and her risk of suicide was quite, quite high”. These observations were at odds with those made earlier (in June 2015) by Drs. Chan and Looman. Dr. Varley, too, was unaware, at the time he prepared his report, of your internet consultations or that you had obtained information about adoption. When, during his cross-examination, he was given that information, he initially said that it did not alter his opinion. However, he ultimately conceded that your reaching out to an adoption agency was consistent with you knowing that you were pregnant.

[49] You appear not to have reported hallucinations to any of the other health care professionals that you dealt with other than Dr. Varley. Yet Dr. Varley had also not had the benefit of reviewing all of the disclosure provided to him and, in particular, had not reviewed your videotaped interviews.

[50] While Dr. Bradford had reviewed the recorded interviews and the clinical records, including Dr. Chan’s report, he had not read Dr. Varley’s report. He also spent three or four hours meeting with you.

[51] Dr. Bradford did not discern any evidence of hallucinations, psychotic symptoms or cognitive impairment at the time that you provided your statements to the police. During the course of his evidence, he distinguished between denial, on the one hand, and any dissociative disorder, on the other. The websites and adoption site accessed by you were, he felt, indicative of cognitive involvement and awareness of your pregnancy, and not of denial or disassociation. Dr. Bradford did not believe that you suffered from any form of psychosis.

[52] I bear in mind that the evidence of all of these experts was provided in the context of a voluntariness application in which they were asked to focus on the voluntariness of the statements given by you to the police, as opposed to your mental state at the time of the offences.

[53] Although Dr. Bradford clearly had doubts about the genuineness of some of the symptoms expressed by you, and the extent of any mental health issues in existence at the time, I do not understand the evidence of any of these experts to suggest that you were not a person whose mind was “disturbed” at the time of the offences as a result of the effects of giving birth, at least to the extent that such term is applied in s. 233 of the Criminal Code.

[54] You remain under medical supervision and take medication to address your mental health issues, but you have not yet taken any courses or pursued any educational or vocational opportunities. The Crown suggests that you could and should have. The defence responds that you have been subject to very strict bail conditions. The Crown’s response to that is that any time variations to your bail conditions have been requested, they have been acceded to by the Crown. In other words that if you had wanted to take a course or get a job, you could have.

[55] I hope that as soon as your circumstances permit, you will pursue educational and vocational objectives.

Sentencing Principles

[56] This is a tragic case. I have had the opportunity of observing you over multiple court appearances during the last two and a half years. You have often appeared distressed and tearful. There were times when you could not bear to hear some of the evidence that was being provided during the hearing of pre-trial applications and asked to be excused.

[57] I have no doubt that you are remorseful, or about the distress that you and your family have experienced.

[58] But it is also necessary to remember that you have pleaded guilty to culpable homicide, as that term is defined by s. 222(4) of the Criminal Code.

[59] A person who is guilty of infanticide is liable to imprisonment for a term not exceeding five years: Criminal Code, s. 237.

[60] The offence of disposing of the dead body of a child, with attempt to conceal the fact that its mother has been delivered of it, is punishable by a term of imprisonment not exceeding two years: Criminal Code, s. 243

[61] As with any other sentencing decision, I am required to have regard to the general principles of sentencing set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate the offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[62] Other sentencing principles set out in s. 718.2 provide that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. Furthermore, s. 718.2(e) of the Criminal Code provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances, and consistent with the harm done to victims or the community, should be considered for all offenders.

[63] Significantly, I am also required to have regard to s. 718.01 of the Criminal Code, which requires a court imposing a sentence for an offence that involved the abuse of a person under the age of eighteen to give primary consideration to the objectives of denunciation and deterrence of such conduct. The Crown argues that infanticide is, by its very definition, an offence against a child and, hence, subject to the sentencing objectives of s. 718.01.

Discussion

[64] The Crown submits that you should be imprisoned for two years on the infanticide charge, and for a further consecutive term of one year on the concealment charge, for a total of three years.

[65] Counsel agree that you are entitled to 63 days’ credit against any custodial sentence that I now impose for the 42 days you spent in pre-trial detention.

[66] The Crown and the defence differ on the credit to be accorded for 84 days spent by you at Providence Care, and the last 1,274 days when you have been on bail, but under strict conditions amounting to house arrest.

[67] The defence submits that, taking into account pre-trial detention, court-ordered detention at Providence Care, and three and a half years under strict bail conditions, you are entitled to 21 months of credit against any custodial sentence.

[68] According to the defence, no public interest can be achieved by putting you in prison. You currently receive financial support under the Ontario Disability Support Program, the government having evidently accepted that your mental health status prevents you from working. The defence suggests a suspended sentence for the concealment offence (or at worst a short, sharp, one-month jail sentence). Accordingly, even if I were to conclude that a custodial sentence of as long as twenty months was appropriate for the infanticide offence, there would be no further time to serve. In addition, the defence submits that you are a good candidate for probation and have been compliant with all terms of your bail.

[69] In R. v. Leung, 2014 BCSC 1894, a case in which, following a six-week trial, a jury returned convictions on two counts of infanticide, the court described the difficulty of reconciling s. 718.01 of the Criminal Code (giving primary consideration to the objectives of denunciation and deterrence for offences against children) with the five-year maximum sentence for infanticide, which implicitly recognises a diminished moral blameworthiness compared to other persons who kill young children. At para. 91 of Leung, Humphries J. said:

The authorities to which I was referred contain discussions of the role of deterrence and denunciation in the context of infanticide. In Wood [1999] O.J. No. 5042 (Ont.Ct.Justice) the court pointed out that denunciation of the act of a mother killing her child is a given, and is generally recognized as a “a particularly horrible” crime. Thus no further statement of denunciation from the court is required. That is true. Everyone who hears about this case has their own adjectives to apply to it, to express their strong emotional response, dismay, and incomprehension.

[70] Exactly the same comment could be made in the present case.

[71] Humphries J. went on to discuss the need for specific deterrence. She found that in the circumstances of that case, the promotion of a sense of responsibility and acknowledgment of the harm done to the helpless victims was important. Rehabilitation was also seen as playing a role, and she concluded (with the apparent agreement of counsel) that the programs in the federal system provided the best opportunities for the appellant.

[72] In Leung, on the first count, the appellant had been faced with an unexpected delivery in the early morning hours. She was frightened to the point of being unable to think of anything but hiding the baby. She did not obtain any medical intervention. She left the baby, which she knew was alive, in the cold water of a toilet while she got a plastic bag, put the baby in the bag, and put it outside the house at some later point, at a location where its discovery was inevitable. It is not clear whether the baby died before or after he was placed in the plastic bag.

[73] Exactly what happened in relation to the second count was less clear. However, the court concluded that whether on each occasion the babies were left in the cold water of the toilet to die, or whether they were tied up alive in plastic bags and left to die, or whether she held the second baby against her body, wrapped in plastic until he stopped moving, and then put him in the garbage, both of the acts were horrific, sad and incomprehensible. The sentencing judge felt that the second count attracted more blameworthiness because it was the second pregnancy.

[74] The appellant was sentenced to eighteen months on the first count and 42 months on the second count for a total of sixty months, or five years. She was also made subject to a common law peace bond of 20 years, during which she was required to advise a representative of the Ministry of Children and Families (or equivalent) in the jurisdiction in which she resided of any future pregnancies, to seek medical assistance for pre-natal care, and to follow the directions of her medical practitioner.

[75] I pause here to note that I invited counsel to confirm that, if I was so minded, I have jurisdiction to impose a common law peace bond on similar terms to those imposed in the Leung case. The decisions in R. v. White, [1969] 1 C.C.C. 19 (B.C.S.C.) and R. v. Musoni confirm that, in appropriate circumstances, I do.

[76] In R. v. Giesbrecht, [2019] MBCA 35, the appellant was convicted of six counts of concealing the body of a child contrary to s. 243 of the Criminal Code. She had concealed six pregnancies from friends and family. After each hidden delivery, she had stored the body of the near- or full-term child at the same location, until all six were discovered in her rented storage locker. It was, as the introduction to the Manitoba Court of Appeal’s decision states, “a mystery as to how each of the children died and why the accused decided to conceal the bodies”.

[77] The appellant in Giesbrecht was not charged with infanticide. Rather, she was tried in the Provincial Court on the six counts of concealing the dead body of a child.

[78] The appellant was sentenced to six months imprisonment on each of the six counts, consecutive, for a total combined sentence of three years imprisonment. In so concluding, the Manitoba Court of Appeal was satisfied that, because of the high moral blameworthiness of the accused in relation to each of the six counts, a term of imprisonment was necessary on each count: see para 205.

[79] In the leading Ontario case on infanticide, R. v. L.B., 2011 ONCA 153, the appellant was charged with the infanticide of two of her children. In relation to the first charge, the appellant smothered her son to death in his crib six weeks after he was born. A little over four years later, the second charge arose from the death of another son, who was smothered to death in his crib ten weeks after he was born. Her actions in respect of both of these deaths went undetected until, during the course of an admission to a mental health centre, she told an attending physician that she had killed two of her children. She was sentenced to eighteen months on the first count, which was prosecuted under the Youth Criminal Justice Act, S.C. 2002, c. 1, the last six months of which were to be served under supervision in the community. The trial judge also imposed a six-month probation term. In relation to the second conviction, in which the appellant was prosecuted as an adult, the trial judge took into account the appellant’s pre-trial custody (two and a half years) and imposed a sentence of one day, to be followed by three years’ probation. That sentence was to run consecutively to the sentence imposed under the Youth Criminal Justice Act. The appellant was also required to enter into a common law peace bond for a twenty-year term, with the provision that the appellant was to notify the child welfare agency in the jurisdiction where she lived should she become pregnant. The appellant’s appeal against conviction was dismissed.

[80] The defence argues that in situations where mental illness plays a role in the commission of an offence, an offender’s culpability may be diminished to a degree that renders a custodial sentence inappropriate or unnecessary, and that treatment and rehabilitation of the offender should be the paramount considerations: see R. v. Ellis, [2013] ONCA 739 at para 117; R. v. Batisse, 2009 ONCA 114, [2009] ONCA 114, 93 O.R. (3d) 643, at para 38.

[81] The principal difficulty with this argument is that a disturbance of the mind is part of the actus reus of the offence of infanticide and not the mens rea: see L.B., at para 59, R. v. Borowiek, [2016] S.C.C. 11, at para 14. The required element of a disturbed mind is baked into the definition of infanticide and informs the applicable maximum sanction of five years imprisonment. Put differently, the diminished responsibility, which results when the mental state of the mother is disturbed and that disturbance is connected to the effects of giving birth, operates as a partial defence to a charge of murder. To then further diminish the appropriate sentence because of mental health considerations would be in effect double counting.

[82] The defence also asserts that, contrary to the submission made by the Crown, you should not be sentenced to separate terms of imprisonment for the two offences you are charged with. The basis of this argument is the statement of the Manitoba Court of Appeal in Giesbrecht at para 27, to the effect that, by virtue of s. 662(4) of the Criminal Code, the offence of concealing the body of a child is an included offence to a count charging the murder of a child or infanticide.

[83] Section 662(4) of the Code provides as follows:

Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under s. 243 [concealing body of child] but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under s. 243.

[84] The defence argues that, notwithstanding that you entered guilty pleas to both infanticide and concealment of the body of a child, the effect of s. 662 of the Criminal Code is to treat these two charges as a single offence. The argument goes that one offence is a subsidiary of the other because if the Crown is unable to establish guilt on the more serious offence of infanticide, the accused person can still be found guilty of the concealment charge.

[85] I do not read s. 662(4) that way. The section simply provides that, in order to convict an accused person for concealing the body of a child where murder or infanticide has been charged, it is not necessary to prove that the accused committed murder or infanticide. The subsection does not, however, in my view, result in a situation where, if an individual is guilty of murder or infanticide, they cannot also be separately charged for concealment of the body of the child. The principle in Kienapple v. R., [1975] 1 S.C.R. 729, does not apply.

[86] The Crown and the defence also disagree on whether, if custodial sentences are imposed for each offence, they should be served concurrently or consecutively.

[87] The Crown’s position is that the death of the victim and the subsequent concealment of her body were separate delicts. Each were separate, distinct and deliberate acts.

[88] Consecutive sentences are appropriate when offences do not arise out of the same event or series of events: Criminal Code, s. 718.3(4)(b)(I).

[89] In this case, there is, in my view, a clear factual nexus between the death of the victim and her concealment, albeit that the concealment started at the same time, or within a very short period of time after the infanticide offence, and then continued for over two months until the discovery of the body by Alicia Pemberton.

[90] I therefore conclude that concurrent sentences would be appropriate.

[91] While there is agreement on the effect of pre-trial custody, there is disagreement on what credit should be given for the 84 days which you spent at Providence Care, pursuant to an order made by Mr. Justice Ray (the Crown asserts that Ray J. did not have jurisdiction to order your continued placement at Providence Care beyond the 60 day period provided for by s. 672.11 of the Criminal Code (30 days for an assessment plus a further 30 day extension)). She made a similar submission to Ray J. himself, and yet he made the order.

[92] Regardless of whether the amount of time spent by you at Providence Care exceeded the maximum amount of time that the court had jurisdiction to order you to be there for assessment, the fact of the matter is that you were there, and that you were not at liberty to leave. There was a court order requiring you to be detained at that facility. I therefore see no reason in principle why you should not get the same credit for that detention, i.e. at a rate of 1.5 days credit for each day served, as would apply to pre-trial custody at the Quinte Detention Centre. Accordingly, you should have credit for 126 days for the time you spent at Providence Care in addition to 63 days for your time in custody at the Quinte Detention Centre, for a total of 189 days.

[93] There is broad agreement that, following the approach established by the Court of Appeal in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), it is appropriate for sentencing judges to consider reducing a sentence in light of time spent under stringent bail terms, especially house arrest.

[94] You were restricted to residing with your parents, at the residence of your grandparents, or at your support worker’s residence. You were effectively under house arrest for four and a half years starting September 2015 (although six months of that time was spent as a voluntary patient at Brockville Hospital).

[95] The defence submits that you should receive one day of credit against the custodial sentence for every three days that you spent under strict bail conditions. The Crown says that there is no such hard and fast rule.

[96] The Crown also observes that it was open to you to seek education or work (and hence mitigate the effects of your house arrest), but you declined or failed to do so. The Crown further notes that a significant portion of the four and a half years you have spent under restrictive bail conditions was because of defence delay. And the conditions of your bail have not prevented you from being active on social media and having coffee dates with people you have connected with on Facebook.

[97] The ratio suggested by the defence would result in 424 days further credit in addition to the 189 days that I accept that you are entitled to. Having regard to all of the circumstances, that would, in my view, be unduly generous in your case.

[98] Like most if not all other infanticide cases, this one is tragic. It defies rational explanation. But the fact remains that you are responsible for the culpable homicide of a helpless child.

[99] You are at one and the same time deserving of a sentence that reflects society’s denunciation of your crime, yet also meriting a degree of understanding and positive thoughts for your rehabilitation.

[100] I see you as a decent young woman who has lost her way. Who was confused and overwhelmed. A young woman with supportive family who, rather than seek help, made some very, very bad decisions.

[101] You will always have to live with the knowledge of what you have done. Coming to terms with what has happened will be a constant, perhaps lifelong, challenge for you. To the extent you do not already do so, you can and, I believe, will accept responsibility for your actions. These are things which, aside from any punishment which the court imposes, you are going to have to address and live with.

[102] As I have already said, I agree with the comment made in another case that, in circumstances such as yours, no further statement of denunciation from the court is going to serve any valid purpose. A lengthy term of imprisonment, often the clearest mark of society’s denunciation, would therefore be redundant.

[103] While I find it appropriate that you experience some further deprivation of your liberty, the primary focus of your sentence is intended to, firstly, be rehabilitative, providing you with a pathway back to, hopefully, a productive and fulfilling life; and, secondly, to put in place a mechanism to ensure the safety of any child that you may have in the future.

[104] Ms. Pemberton, please stand up.

[105] On the charge of infanticide you will serve a conditional sentence of imprisonment in the community of one year. In coming to that term, I have taken into account the significant period during which you were on judicial interim release on restrictive terms. On the concealment charge, you will serve a conditional sentence of imprisonment in the community of six months, to be served concurrently.

[106] The terms of your conditional sentence of imprisonment will be as follows:

(a) You will keep the peace and be of good behaviour;

(b) You will appear before the court when required to do so;

(c) Within two working days of today you will report in person to a supervisor and, thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) You will remain within the Province of Ontario unless written permission to go outside Ontario is obtained from either this court or the supervisor;

(e) You will reside at a place approved of by your supervisor;

(f) You will notify this court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;

(g) You will perform 120 hours of community service as directed by the supervisor over the 12 month term of your sentence;

(h) Unless and until recommended otherwise by the supervisor, or discharge by the professional concerned, you shall continue with the following treatment:

a. Tracey Taylor, psychotherapist

b. Dr. Kate Koester, family doctor

c. Dr. Hassan, treating psychiatrist;

(i) You will notify the supervisor of any other health care professionals that you are in a therapeutic relationship with and will promptly notify the supervisor if you are discharged by, or cease to have a therapeutic relationship with any of these health care professionals, including those I have specifically identified;

(j) You will take all medications as prescribed for you for mental health purposes by a duly qualified health care practitioner;

(k) You must sign any consents necessary for the monitoring of your mental health by the supervisor;

(l) You will attend for any counselling as recommended the supervisor and sign any consents necessary for the monitoring of your progress at such counselling;

(m) You will be in your place of residence between the hours of 8:00 p.m. and 6:00 a.m. unless permission in writing is obtained from the supervisor, for example to enable you to undertake employment or education, or your absence is the result of a medical appointment or emergency;

[107] I am required by the Criminal Code to explain the substance of the conditional sentence order that has been made. A conditional sentence is both punitive, because it restricts your liberty, and rehabilitative. The conditions I have just told you about must be complied with by you. None of them are optional. If you break one or more of the conditions of your conditional sentence, there may be a hearing held in front of a judge. If the judge is convinced that you have broken one or more of the conditions without a lawful or reasonable excuse, he or she may require you to serve the remaining time in jail.

[108] You, the supervisor or the Crown can apply to the court, pursuant to s. 742.4 of the Criminal Code, to change the optional conditions of this conditional sentence order upon giving notice and in some cases there can be a hearing in court to determine whether the change or changes requested should be made.

[109] Do you understand what I have told you about the conditional sentence? You will be provided with a copy of the conditional sentence order that I have made as well as a copy of my reasons.

[110] Following the completion of your conditional sentence of imprisonment, you will be on probation for a further two years, the terms of which will be as follows:

(a) You will keep the peace and be of good behaviour;

(b) You will appear before the court when required to do so;

(c) Within two working days of the expiration of your conditional sentence of imprisonment, you shall report in person to a probation officer and, thereafter, be under the supervision of a probation officer or a person authorised by him or her, and report at such times and places as that person may require;

(d) You will reside at a place approved of by your probation officer and not change that address unless approved;

(e) You will promptly notify the probation officer of any changes of education, employment or occupation;

(f) You will attend for any counselling as recommended by your probation officer and sign any consents necessary for the monitoring of your progress at such counselling;

(g) Unless and until recommended otherwise by your probation officer, or discharge by the professional concerned, you shall continue with the following treatment:

a. Tracey Taylor, psychotherapist

b. Dr. Kate Koester, family doctor

c. Dr. Hassan, treating psychiatrist;

(h) You will take all medications as prescribed for you for mental health purposes by a duly qualified health care practitioner;

(i) You will sign any consents necessary for the monitoring of your mental health by the probation officer;

[111] It is important that, despite some similarities in their terms, the conditional sentence order and the probation order that I have made are separate orders. The probation order takes effect when the conditional sentence ends.

[112] In addition, and in the interests of the protection of the public, you will be subject to a common law peace bond for a period of 20 years, commencing today, during which you are required to advise the Children’s Aid Society (or equivalent) in the jurisdiction in which you are residing at the time if you become pregnant, to seek medical assistance for pre-natal care, and to follow the directions of your medical practitioner.

[113] There will also be an order authorising the taking from you of such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.04 of the Criminal Code and a weapons prohibition order for 10 years.

[114] Ms. Pemberton, I hope you will leave today with a positive attitude. That you will work with authorities responsible for your supervision and make the most of any counselling that you undertake and the community service that you are required to undertake as part of this sentence. That you will become a contributing member of your community and live a productive life. And that you will ask for help if and when you need it.

Graeme Mew J.

Handed down orally: 10 July 2019