IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This defendant was found guilty of ‘Failing to Provide the Necessaries of Life’ to her four year old son contrary to S 215 (2) (a) of the Criminal Code of Canada. A charge for which there is no minimum sentence but for which the maximum sentence is five years in jail.

[2]         The facts in support of this charge are that the defendant was found to have failed to protect her son from physical abuse which caused him significant bodily harm. Further, she failed to attend to the medical needs arising from those injuries within a reasonable amount of time thereby endangering his life.

[3]         The trial was presided over by the late Honourable Judge Gulbransen but he passed away after finding the defendant guilty but before he could impose sentence. There is provision in the Criminal Code of Canada, S 669.2 (1), for the matter to be continued before another judge. Pursuant to that section and the direction of my Administrative Judge, it falls to me to sentence this defendant on behalf of the court.

[4]         Judge Gulbransen delivered his reasons for judgment orally and those reasons were transcribed and provided to me.

[5]         Judge Gulbransen was clear in his findings that a great deal of harm had been done to the defendant’s child, describing the child as someone who “looked like a victim of torture”. The child had been burned, whipped and otherwise assaulted with weapons. He had broken bones in a hand, an open wound on his face, bruises all over his body and burn marks in various stages of healing. He had a damaged eardrum, bruising to his penis, bruises around his eyes, and his back was crisscrossed with long linear marks. On search of the defendant’s home, barbeque lighters were found that had the child’s blood on them as was an iron which also had the child’s blood on it. The home was not in a proper habitable condition.

[6]         These assaults took place in 2015 but the charges were not laid until 2019 and the trial was not held until 2021. The original charges included allegations against both this defendant and her domestic partner for the assaults on the child but those charges were stayed by the prosecution and the only charge that proceeded was the ‘Failure to Provide Necessaries of Life’ charge, which charge was pursued only against this defendant, not her domestic partner. Indeed, all charges against her domestic partner were stayed.

[7]         That was the state of the matter when it came before me for the purposes of imposing sentence. Counsel for the crown (the prosecutor) and counsel for the defendant made lengthy submissions on the issue of sentence and the defendant herself addressed the court at this sentencing hearing.

[8]         Judge Gulbransen gave oral reasons for judgment on March 23, 2021 finding the defendant guilty as charged. Several parts of those reasons bear repeating as they set up the background circumstances for this sentencing. Whenever quoting from those reasons, in order to protect the identity of the victim, I refer to him only as ‘the child’ and have substituted those words for his name in the following quotes. I have also removed other people’s names for the same reason.

[9]         The defendant’s background circumstances as well as the background circumstances of the offence are set out starting at paragraph 14 of Judge Gulbransen’s reasons:

[10]      The true extent of the abuse suffered by the child was discovered and officially reported on September 28, 2015 when the defendant took her son to the hospital at the urging of her employer.

[11]      The next part of those reasons that bears repeating is the extent of the harm and abuse done to the child. Judge Gulbransen described these starting at paragraph 28:

[12]      The child was removed from the defendant’s care at the hospital that night and the defendant called her domestic partner for a ride home. The two of them continued to reside together until 2019 when charges were laid against both of them.

[13]      Next, starting at paragraph 40 of his reasons for judgment, Judge Gulbransen described the testimony of the defendant:

[14]      The defendant told the court that the injuries were inflicted by her domestic partner and she pled a defence of ‘lawful excuse’. It seems that her lawful excuse for not protecting her son from the violence and for not getting medical attention for his injuries was because she was afraid of reprisal from her domestic partner and because she feared losing care of her child to his father.

[15]      That defence was rejected by the court for the reasons set out by Judge Gulbransen in his reasons for judgment.

[16]      Those are the circumstances which brought the matter before me for sentencing.

[17]      For the purposes of sentencing, the court was provided with the following written materials:

[18]      Sentencing is supposed to help create a safer society.

[19]      In crafting a proper sentence, courts must consider, among other things, Denunciation, Deterrence (both specific and general), Protection of Society, Reparation, and Rehabilitation of the offender. Each of these factors may be more or less important in crafting the sentence in any given case.

[20]      There is also a principle of proportionality in that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21]      Courts must always take into account the presence and absence of mitigating and aggravating factors in crafting sentences and there is also a principle of parity in that defendants from similar backgrounds with similar criminal records who commit similar crimes in similar ways should be sentenced to similar sentences.

[22]      Courts denounce criminal acts by punishing them and courts demonstrate a greater level of denunciation by imposing a greater or more burdensome sentence.

[23]      The act of a child’s parent standing idly by while her domestic partner causes substantial bodily harm to her child is an act worthy of significant denunciation but it is less worthy of denunciation than the act of committing that violence.

[24]      The second factor, Deterrence, is important as Courts impose sentences in criminal matters in the belief that doing so deters the offender from reoffending (specific deterrence) as well as deterring other people from committing offences (general deterrence).

[25]      This is a case in which both specific deterrence and general deterrence are important factors for the court to consider.

[26]      Protection of the public, by removing someone from society (putting them in jail) in order to protect society from them, is not a significant factor at this time as the defendant does not have the care of any children at this time. It is significant that the defendant does not have a criminal record.

[27]      Rehabilitation of this defendant should be an important factor as she was young when these events occurred and this is her first offence.

[28]      Finally, in crafting this sentence, the court should seek to promote a sense of responsibility in the defendant and an acknowledgment of the harm done to the child.

[29]      On the issue of Denunciation, I note that the severity of the harm done to the child calls out for denunciation in the form of a long jail sentence. Indeed the defendant faced the possibility of up to 14 years in jail while she stood charged with the assaults on her son.

[30]      However, this defendant does not stand convicted of having committed that violence so the level of denunciation must be appropriate only for ‘Failing to Provide the Necessaries’, a charge that carries a maximum sentence of five years.

[31]      The court can require the defendant to serve any jail sentence imposed in a jail or the court may, in certain circumstances, order that she serve her jail sentence in the community under a Conditional Sentence Order (CSO), a form of house arrest. The courts accept that this form of jail sentence is a burdensome one, although not as burdensome as serving a sentence in a jail.

[32]      Based on the case law provided to the court, a long sentence for a person convicted of this offence starts at one year in jail and could be as long as two years. A long sentence is more likely to be reserved for a person convicted of directly committing the harm to the child.

[33]      A person convicted of this offence is likely to a face shorter sentence, a sentence of nine months or less if they are found not to have caused the harm to the child but rather to have failed to protect a child from harm or failed to obtain medical attention for a badly and obviously injured child.

[34]      It is clear from the case law that the issue of Deterrence must be treated as a significant factor in sentencing a person convicted of any form of this offence.

[35]      Keeping that in mind, I note that the facts of this case are sufficiently serious for the court to consider imposing of a sentence of up to nine months which will be discussed further below.

[36]      Protection of Society, as already mentioned, is not a significant factor in this sentencing as the defendant does not have a criminal record and she does not currently have any children in her care. However, she is young and certainly could have children again in the future. Therefore this remains an active consideration in this sentencing but would not affect the length of sentence.

[37]      Rehabilitation for this offender must be considered. However, it is a commonly held belief that Rehabilitation can only be achieved if the offender accepts guilt. If the offender shows true remorse, accepts guilt in some real way and is motivated to change, this can have the effect of significantly reducing a sentence. I will discuss below my findings on this issue.

[38]      This defendant is not able to pay or provide any form of reparation.

[39]      This defendant will benefit from the mitigating circumstances including her clean record, her age and the fact that she admitted the whole of the crown’s case such that no witnesses had to be called. These will have the effect of reducing the sentence the court might otherwise have imposed.

[40]      However, the aggravating circumstances in this case are that the abuse was committed against a child, that it was committed over a lengthy period of time, that the defendant cannot deny knowing about the violence, that she minimized significant injuries that the child suffered so she could ignore them, that she failed to get medical attention for the child’s clear and obvious injuries, that she was in a position of trust and therefore had a duty to protect the child from abuse, and that the effect of the abuse on the child will undoubtedly endure for the child’s entire life. These are facts that the court must also weigh in crafting this sentence.

[41]      Remorse is a mitigating factor while the reverse is not true. Lack of remorse is not an aggravating factor but rather simply a neutral one which has no impact on a sentence. The prosecutor argued that the defendant failed to show remorse and the defendant, through her counsel, acknowledged a lack of obvious remorse. However, her counsel argued that she was remorseful and he argued that she did not demonstrate her remorse in obvious ways because of her upbringing.

[42]      Serving a sentence in a jail rather than in the community has a greater impact on the defendant’s life and is therefore a more serious form of jail sentence. The decision to require a defendant to serve a jail sentence in a jail rather than to permit it to be served in the community in a ‘Failing to Provide the Necessaries’ case often comes down to the factors of Denunciation and Deterrence.

[43]      The issues raised by Denunciation, Deterrence, Reparation and Protection of Society are adequately dealt with above.

[44]      However, the way that Rehabilitation and Remorse should affect this sentence is less clear.

[45]      That is because the defendant has not truly accepted her guilt in this matter and she has shown only a minimal level of remorse.

[46]      The Reasons for judgment of Judge Gulbransen, the Pre-Sentence report, and the Psychiatric Assessment all share this same insight about the defendant. They all share that the defendant fails to understand or, more likely, denies the extent of the injury suffered by her child.

[47]      Judge Gulbransen put it this way at paragraph 50 of his Reasons for Judgment:

[48]      A quote from page 9 of the Pre-Sentence Report reads: “The subject pleaded not guilty to the offence. Despite her agreeing that it is her responsibility to protect her son she stated that she did not believe she endangered his life.”

[49]      A quote from page 6 of the Psychiatric Assessment reads: “She admits to being charged with “fail to provide”, but she denies perpetuating or having any knowledge of when her son was abused.” The evidence produced in the trial of this matter proves that the defendant was not being honest with the psychiatrist when she made the statement that she has no knowledge of when her son was abused. Considering the visible nature of the injuries suffered, that statement is so obviously untrue that nothing further needs be said in that regard. However, the fact that she made such a statement, once again demonstrates the lack of empathy this mother has expressed for her son’s suffering.

[50]      Finally, I too came to be of the same opinion based on my own experience with the defendant.

[51]      It is my finding that the defendant has yet to acknowledge the part she played in causing and contributing to so much of child’s suffering, in the extra times he got beaten because she didn’t remove him from the home sooner, in the extra pain he suffered needlessly because she didn’t take this beaten child for the urgent medical treatment he so visibly and obviously needed.

[52]      At the sentencing hearing before me the defendant asked to address the court. In speaking to the court she properly apologized for the suffering and harm caused to the child. Had she stopped there, it would have been a proper apology which would have demonstrated proper remorse.

[53]      Unfortunately she did not stop there, rather, as with her appearance before Judge Gulbransen and her discussions with the report preparers, she went on to talk about herself and how she was scared of her domestic partner. She spoke of how he might arrange for the raping of her mother, the beheading of her brother or the throwing of acid in her face. She clearly wanted me to believe that any or all of these events might occur if she were to have reported her domestic partner’s abuse of the child.

[54]      To me this does not make any sense as a defence. If I understand that this is a form of excuse for her choices, then I would have to accept that the defendant made a conscious choice to sacrifice her child to significant and ongoing abuse, a conscious choice to allow her four year old son to be so abused that a judge described him as looking like a victim of torture, a conscious choice to allow this abuse to continue as long as it did just so she could save some adults from the possibility of some future assault. While this may be a form of remorse it is minimal at best.

[55]      Further, in her evidence before Judge Gulbransen, she also mentioned that part of her decision not to seek medical attention was a worry that the child’s father would be entitled to get custody of this child. That explanation also suggests an intentional decision not to seek the medical attention that the child so obviously needed.

[56]      However, the court accepts that the defendant has shown at least a form of remorse, minimal though it might be, so the defendant will have some benefit from that in this sentencing. As mentioned above, lack of remorse is not an aggravating factor.

[57]      Rehabilitation, in the form of counseling, will be a significant factor in this sentencing in order to help ensure that, should she have the care of children in the future, this never happens again.

[58]      The prosecution submitted that the appropriate sentence, after taking all of the above sentencing considerations into account, should be one that includes a term of jail served in a jail rather than being served in the community under a CSO. He advised that he had been prepared to submit that the defendant should be sentenced to 9 months in jail as she was not giving her consent to a treatment order. However, just before the sentencing hearing began, the defendant advised that she would consent to a treatment order and the prosecutor said that, upon learning this new information, he would instead be submitting that the appropriate sentence should be six months in jail instead of nine.

[59]      He further submitted that the jail sentence should be followed by a two-year probation order with meaningful conditions and that the treatment condition should be in the form of a ‘Rogers’ order.

[60]      He argued that the defendant should serve her time in a jail for the purposes of emphasizing the Denunciation and Deterrence principles of sentencing.

[61]      Finally, the prosecutor agreed that the defendant is entitled to the benefit of 6 days that she has already served such that the sentence imposed should be 174 days of new jail time.

[62]      Defence counsel submitted that a jail sentence was probably appropriate in all of the circumstances but that there was no reason why the defendant should serve that jail sentence in an actual jail rather than in the community under a CSO.

[63]      He emphasized that the defendant had a job, that she is willing to undertake counseling and treatment, that she was young at the time of the offence (only 26 years old), that she has no record, and that she has been living under strict bail conditions for many months including a condition not to have contact with her own parents (as they might have been necessary witnesses for the prosecution). He added that the defendant had been living in an abusive relationship and that her cultural background affected her decisions.

[64]      He did not oppose the probation conditions sought by the prosecutor nor did he argue that the two-year term of probation suggested by the prosecutor was inappropriate.

[65]      The court was provided with three cases in which defendants had been sentenced for similar offences.

[66]      Her Majesty the Queen v. Beaudry, 2006 ONCJ 577, is a case in which Ms. Beaudry left her child with her domestic partner for the evening. He assaulted the child while she was out. She noticed the injury on her return but did not report it at once. She tried to report it but her partner discouraged her and took her phone. A friend visited and, upon seeing the child, told Ms. Beaudry to take the child to the hospital. She did. The child had three broken ribs and two skull fractures. The delay in taking the child to the hospital endangered his life. She was ordered to serve a 9 month jail sentence but it was to be served in the community under a CSO, followed by two years on probation.

[67]      Regina v. J.A.R., 2012 BCPC 347 (CanLII), 2012 BCPC 0347, is a case in which the defendant was an immigrant from El Salvador who had been abandoned by his parents, raised by the community, worked in an anti-government operation, was tortured himself, came to Vancouver and ended up addicted. He had a special needs child who was in his care but who also had foster parents. The child was injured and the father did not report it, rather the foster parents reported the injury when the child came into their care. When the injuries were discovered, the father said that they arose from two different falls that the child had during the prior few days. The injuries included a fracture of the wrist and of the ulna bone, bruises and abrasions to face and body, an injury to the shoulder and damage to an ear. The defendant was sentenced to a six month jail term to be served in jail, followed by two years on probation.

[68]      Regina v. A.N., 1026 BCPC 246, is a case in which a mother who had her own restaurant took her child to the restaurant with her every day. She neglected the child by leaving him in her restaurant’s pantry all day long completely ignoring his needs including his need for nourishment. By the time he was taken to the hospital, he was so undernourished that he was almost dead on arrival. It was clear that he had been starved or significantly underfed for many weeks or months. He was four but could not stand or walk on his own. The defendant was sentenced to a jail sentence of one year to be served in a jail, followed by two years on probation. The judge considered imposing a jail sentence of 18 to 24 months but reduced the sentence to one year on the basis of mitigating circumstances similar to those in the case before me.

[69]      The facts of the Beaudry case are similar to the facts of the case before me in that Ms. Beaudry saw the child’s injuries and did not take him for treatment immediately. However, she waited only a few hours after an assault had taken place on one evening and she did not minimize the injuries suffered. On the other hand, the defendant before me waited many days during which the child likely suffered many more assaults. She attended to none of them for an extended period of time. While the facts are similar in some respects, the case before me is clearly more serious.

[70]      On the other hand, the facts of the A.N. case are more serious than the facts of my case. In that case, the defendant was the person responsible for endangering her child’s life by staving or underfeeding him. She not only failed to attend to her child’s obvious medical needs, she created those medical needs.

[71]      The case which has the greatest number of similarities to the one before me is the J.A.R. case. In that case, as in the case before me, the defendant had a difficult upbringing in a different culture, the injuries suffered by the child were serious and obvious, and the court accepted that the defendant did not actually cause the injuries but that the defendant just failed properly to attend to them. As in the case before me, the defendant in that case also minimized the child’s injuries. The one significant difference is that the defendant in that case had a record while the defendant in mine does not.

[72]      The other significant difference is that the child in the J.A.R. case seems to have suffered injuries that were innocently caused (by falling) but the child in the case before me had intentionally-inflicted violent injuries.

[73]      There is nothing in the evidence before me to suggest that this defendant is of such low IQ that she simply could not understand or properly react, nor is there any evidence of any other mental disability that could act as mitigation in this matter.

[74]      Young children, like the victim in this case, are not able to protect themselves from adults. The adults in children’s lives have the legal duty to protect them from abuse, to report abuse when it occurs, and to get medical attention for injuries that have been inflicted. It must be clear that jail awaits anyone who ignores those duties thereby endangering a child’s life.

[75]      The child in this case was seriously injured over a period that included, at least, most of the month of September 2015. The only adult present in his life with the duty to protect him, not only failed to protect him but also minimized his injuries.

[76]      Worse yet, the defendant’s evidence indicated that she chose, at her child’s expense, to save herself or her mother or her brother from some possible future assault.

[77]      This choice to leave her child to be further assaulted for such an extended period of time is an aggravating factor akin to the facts of the A.N. case.

[78]      For those and many other reasons, Denunciation and Deterrence must be the primary sentencing factors in this case and those factors call out for the sentence to be set at the higher end of the acceptable range. The facts of this case are very serious and defendant’s moral blameworthiness is significant.

[79]      For the reasons set out by the Honourable Associate Chief Judge Gillespie (as she then was) in the A.N. case and for the reasons set out by the Honourable Judge Giardini in the J.A.R. case, I am of the opinion that it would not be appropriate for the defendant in this case to serve her sentence in the community under a CSO. Such an order would not adequately address the factors of Deterrence and Denunciation considering the serious nature of the harm done to the child and the moral blameworthiness of the defendant for some of that serious harm.

[80]      The defendant is entitled to the benefit of the mitigating circumstances. She admitted the crown’s case which saved the witnesses grief and saved the court some trial time so she will have some benefit for this as part of her sentencing.

[81]      The major mitigating circumstances are her age and the fact that, coming into this matter, she did not have a criminal record.

[82]      I have noted the many similarities between this case and both the J.A.R. and the A.N. cases.

[83]      Due to the similarities with those cases, I am of the opinion that the sentence to be imposed in this matter should not differ greatly from the ones imposed there but, of course, the sentence here will have to be adjusted as the facts are not quite the same as in either of those cases.

[84]      I accept that a sentence to be served in the community under a CSO can be burdensome and can have a deterrent and denunciatory effect. However, having considered all of the evidence, the reports, the case law and the submissions in this case, I am of the opinion that it would not be appropriate here to impose a CSO type of order as such an order would fail to meet the courts obligation properly to denounce this behaviour and would fail to act as a sufficiently significant deterrent.

[85]      I hereby sentence the defendant to 174 days in jail taking into account the six days that she has already served.

[86]      Following the serving of the jail sentence, the defendant will be placed on a two-year probation order with the following terms. Some of these terms seem unrelated to the offence but the parties assured me that there is a connection between the facts of this case and the probation terms sought so the terms that I will impose are those sought by crown which were not opposed by the defendant. These are:

[87]      There will also be an order pursuant to S. 643.21 prohibiting you from having contact with R.S.S., K.S.S., S.S., J.A., Z.R., S.M., or R.G. while in custody.