IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Brennan, 2006 NSPC 11
Date: 20060412
Docket: 1486702
Registry: Kentville
Between:
Her Majesty the Queen
v.
Rhonda Brennan
Judge: The Honourable Judge Alan T. Tufts
Heard: Jan. 18, Jan. 19, Feb. 1, and Feb. 28, 2006,
in Kentville, Nova Scotia
Charge: 215(2)(a)(ii) CC
Counsel: Darrell I. Carmichael, for the Crown
Brian Vardigans, for the defence
By the Court:
INTRODUCTION
[1] Rhonda Brennan is charged that she failed to provide necessaries of life for her two-month-old baby, contrary to s. 215(2)(a)(ii) of the Criminal Code.
[2] The Crown alleges that the accused failed to feed her two-month-old baby sufficiently through breastfeeding or through supplemental feeding of expressed breast milk or formula. This, the Crown alleges resulted in the baby's life being in danger when on May 26, 2004 the baby was admitted to hospital.
CROWN POSITION
[3] The Crown argues that the baby was healthy and plump when he left the hospital on April 21, 2004 and that he had gained little if any weight during the month subsequent and essentially was underfed and hungry when he was admitted to the hospital approximately one month later.
[4] The Crown alleges the accused “turned a blind eye” during this period to the fact her baby was not gaining weight. The Crown alleges her actions or inactions during this entire period amounted to a marked departure from that of a reasonable parent. The Crown argues that while the accused was shown how to properly breastfeed the child and to properly express breast milk and supplement the baby's feeding with breast milk and formula she failed to properly do so. The Crown says that she resisted offers of assistance and visits by the public health nurse. It further says she refused to be concerned about the baby's weight and did not want the baby weighed as often as was being suggested. The Crown further argues that the accused did not employ the breast switching method and did not use the breast pump enough and eventually discontinued it entirely. All actions, the Crown argues, contributed to her marked departure from that of a reasonable parent.
Finally the Crown argues the accused had other priorities to that of her baby's health and points specifically to the attention paid by the accused to the redecorating project at her home in May of 2004 and organizing her daughter's birthday party in the weekend prior to the baby's hospitalization as her inability to focus on the baby's health.
[5] All of the above the Crown alleges caused the baby's life to be endangered and constituted a marked departure from what a reasonable prudent parent would have done in the circumstances. The Crown says that it is clearly and objectively foreseeable that if one does not feed a baby properly its life will be endangered.
DEFENCE POSITION
[6] The accused argues that the baby's life was not in danger on May 26, 2004 when he was admitted into hospital.
[7] The accused does not accept the opinion of Dr. Bolivar, the paediatrician who recommended the baby's admission into hospital. She argues that there is no basis for Dr. Bolivar's conclusions and questions Dr. Bolivar's objectivity and credibility. The accused points to the events of May 25, 2004 when Dr. Bolivar first saw the child and her lack of immediate response as evidence that the baby's life was not immediately in danger.
[8] The accused refused to make any oral submissions as to whether her conduct throughout the period in question amounted to a marked departure from that of a reasonable prudent parent. The accused simply maintained that the baby's life was never in danger and that Dr. Bolivar was not a credible witness. Regrettably the Court never received the accused's oral submission as to whether her conduct was criminally negligent.
ISSUE
[9] While the defence argues that the accused's action or inaction has not been proven by the Crown beyond a reasonable doubt to have endangered the child's life or likely to endanger it, the primary issue in this proceeding is the application of the principles contained in R. v. Naglik, [1993] 3 S.C.R. 122, particularly whether the Crown has proven beyond a reasonable doubt that the accused's action or inaction constituted a marked departure from the conduct of a reasonable, prudent parent in the circumstances where it was objectively foreseeable that the failure to provide necessaries of life would lead to a risk of danger to the life of this baby. Also at issue is whether the baby's life was endangered.
FACTUAL BACKGROUND
[10] The accused gave birth to baby James Brennan on March 25, 2004 at the I.W.K./Grace Maternity Hospital in Halifax. The baby was seven and a half weeks premature. Medical necessity required the accused to be taken to the I.W.K./Grace Hospital in Halifax rather than the regional hospital in nearby Kentville. The baby stayed at the I.W.K./Grace until April 6, 2004 when he was transferred to the Valley Regional Hospital in Kentville.
[11] While at the I.W.K./Grace and Valley Regional hospitals the accused visited the baby regularly and expressed milk was brought by her to the hospital. While at the Valley Regional Hospital she was instructed on breastfeeding techniques and procedures and shown how to supplement the baby through finger feeding, a procedure where expressed milk or formula could be fed to the baby through a tube attached to the finger where the baby suckled on the finger, which resembled the nipple of a breast.
[12] On April 6, 2004 when the baby was transferred to the Valley Regional Hospital he weighed 2370 g. He was weighed again in the hospital on April 19, 2004 at 2721 g. and when he was eventually released on April 21, 2004 he weighed 2831g. He was described as healthy and plump with good tissue turgor.
[13] When the baby was released from the hospital he returned to the accused's home in Wolfville. Although there was no direct evidence it appears she resided there with her partner and her daughter, who was six years of age at the time. The accused has an older son age 25 who was also born premature but who spent several months of his early life in hospital.
[14] The accused testified she breastfed her daughter until two years of age.
[15] The accused and baby James were under the care of their family physician, Dr. Roger Hamilton. They were also visited by two public health nurses. The first such visits occurred on April 23 and 26, 2004 and again on April 29, 2004 by another public health nurse, who conducted all the visits thereafter and who testified at this trial. On April 27, 2004 the accused and the baby were visited by Dr. Hamilton.
[16] Throughout this period and up until May 26, 2004 when the baby was taken into care, attention was being particularly paid to the baby's weight. On April 27, 2004 the baby was weighed by Dr. Hamilton and found to be 2700 g. On April 29, 2004 he was weighed by the public health nurse and weighed 2660 g. On May 6, 2004 he was weighed again by the public health nurse and weighed 2600 g.
[17] During this early contact both Dr. Hamilton and the public health nurse testified that while the baby's weight was of some concern his health was otherwise satisfactory. Dr. Hamilton examined the baby on April 27 and testified the baby appeared well. The public health nurse made similar observations. She indicated on April 29 that the baby was alert, had good muscle tone and that his “belly” was full and that he looked fine, although he was thin. She again indicated on May 6, 2004 that the baby had good muscle tone, looked stronger and had good inter-reaction. She did not notice any remarkable difference since her last visit on April 27, 2004 however she did report her observations to Dr. Hamilton.
[18] As a result of this, Dr. Hamilton made a house call to the accused's residence on May 7, 2004. The baby was again weighed and found to be 2610 g. He was observed, however, by the public health nurse to have good muscle tone and the accused was nursing the baby and it appeared as if the baby was suckling well. Dr. Hamilton did, however, express concerns about the baby's weight and reviewed these with the accused. He indicated that clear feeding goals were discussed with the accused who he testified appeared to be interested in complying.
[19] The public health nurse visited the accused and the baby again on May 10, 2004. This time the baby weighed 2710 g. The nurse was pleased to see the weight gain and continued to recommend the accused continue to express breast milk to supplement the breastfeeding. Throughout this period she discussed the breast pump procedure. The nurse had left a breast pump with the accused to use.
[20] The nurse visited the accused and the baby again on May 13, 2004. During this visit the baby weighed 2700 g. It appears that the accused had been given the baby a suppository because the baby had appeared to be constipated. The accused had sought and received advice from the public health nurse about this procedure. As a result of the use of the suppository the infant passed three large stools which the public health nurse acknowledges could explain the decrease in weight at this point.
[21] The public health nurse next visited the accused and the baby on May 18, 2004. Again the baby was weighed and found to be 2760 g. The nurse indicated that the baby appeared to be the same as on previous occasions and that no significant change other than the weight gain was apparent.
[22] The public health nurse again visited the accused and the baby on May 25, 2004. The baby was again weighed and found to be 2700 g. The nurse testified that she observed the baby while he was on the floor and witnessed the baby lifting his head and appeared to be fussy as the accused had just finished feeding the baby. She did observe however that the baby appeared to be thinner and weaker and did not look well. She described him as being “drier”. She testified that his “tummy” was curved in and that she was more concerned about the lack of weight gain than previously. The public health nurse also testified that the accused appeared to be having a particularly difficult day. She described how the accused had indicated to her that she had been busy arranging events for her daughter and was doing some minor household renovations during this period. The nurse seemed to find this remarkable given the continued concern surrounding the baby's weight. While the nurse indicated that she was concerned about the baby's welfare she did not wish to confront the accused because she felt the accused would not have been particularly receptive, given the circumstances at that particular time. As a result of her concern she spoke later that same day with Dr. Hamilton. The nurse did not give any details as to why she felt she could not confront the accused. I will come back to this point later.
[23] After Dr. Hamilton received the report from the public health nurse on May 25, 2004, he contacted Dr. Patricia Bolivar, a specialist in paediatrics. Dr. Hamilton described the baby's history since leaving the hospital on April 21, 2004 and in particular the failure of the baby to gain any weight since that time. Based on Dr. Hamilton's description of the baby's condition Dr. Bolivar indicated that the baby should be hospitalized and arrangements were made for the accused to bring the baby to her for further examination. Eventually the accused and the baby were seen by Dr. Bolivar the following day, on May 26, 2004. Dr. Bolivar indicated that the baby appeared to be malnourished and had little muscle. She described the skin of the baby laying over itself in folds and described the abdomen as protruding. She said he was emaciated, limp and unresponsive. She indicated that the baby's colour was “off” and described him as being pale and thin. She described his bones as protruding and the skull plates visible. In her opinion the baby was “hungry” and that his condition was “very serious”. In her opinion the baby was in danger of dying. She described the baby's condition as being the “worse case” she had experienced in ten plus years.
[24] Suzanne Daniels, the Manager of the Maternal Child Unit at Valley Regional Hospital also testified and made similar observations about the baby's condition as did Dr. Bolivar, however, without expressing any medical opinion. She was present when the baby was admitted into hospital.
[25] Ms. Daniels reviewed several photographs taken of the baby after his admission into hospital. Ms. Daniels described the baby's condition as depicted in the photographs. She indicated that the bones in the baby's skull were apparent because the baby was so thin. She also indicated that the skin on the baby was loose and she described him as being quite emaciated. She indicated that the child's ribs were showing and his shoulderblades apparent as well. She indicated that she had never seen a child as malnourished as baby James and said that on admission he appeared to be “gray”.
[26] She also testified that the baby's temperature was 35.9 degrees Celsius below the expected range of 36.5-37.5 degrees Celsius. She described the baby as being lethargic in that he had little energy, no interest in his surroundings and did not indicate any needs regarding attention or feeding.
[27] She indicated that upon admission to hospital and medical attention the baby gained approximately 80 g. in one day and 500 g. over 5 days.
[28] Regrettably, the photographs tendered in evidence by the Crown were poor in quality. They appear to be digital photographs printed with poor quality reproduction. The colouring was blotchy and unclear, which I can only attribute to the reproduction of the photographs rather than the condition of the baby. As a result of the lack of clarity it is difficult to discern from the photographs what the child looked like at this time. The photographs were of very little assistance in determining how the child presented at this time. I can only rely on the observations made by the medical personnel, the public health nurse and the accused as to what the child looked like.
[29] Throughout this period there was considerable dialogue between the public health nurse and the accused about breastfeeding techniques and procedures and the need to supplement breastfeeding with expressed breast milk and formula through finger feeding. It is clear that there was significant reluctance on the part of the accused to continue with the breast pumping procedure and the formula supplementing. She testified that she was not successful in gaining sufficient milk using the breast pump and that eventually she discontinued using it. She also testified that the baby's reaction to the formula was not positive and that the baby simply was not accepting the formula adequately to justify its continued use.
[30] The accused testified that she breastfed the baby constantly. She said, “He was always at the breast”. She said however that the supply of milk using the pump was not adequate and acknowledged discontinuing that procedure. She did however testify that she, on occasion, finger fed the child with expressed milk and formula and that her partner did as well. In her opinion she thought the baby was not at risk and felt that the baby was progressing because he was gaining length although she acknowledged he was a thin baby. She testified that she never noticed any change in the baby throughout this two month period. She indicated that he looked similar to the way he was depicted in the pictures the whole time and that she felt that she simply had a very “skinny” baby. She testified it never occurred to her that the baby could die.
THE LAW
[31] Section 215 of the Criminal Code was considered in detail by the Supreme Court of Canada in R. v. Naglik, supra. This case was decided by the Supreme Court of Canada in a series of cases dealing generally with objectively-based negligent criminal liability or “penal” negligence.[1]
[32] In Naglik, Lamer, C.J.C., speaking for the majority in this aspect of the decision says as follows:
With respect to the wording of s. 215, while there is no language in s. 215 such as "ought to have known" indicating that Parliament intended an objective standard of fault, the language of s. 215 referring to the failure to perform a "duty" suggests that the accused's conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of "duty" employed by Parliament.
The policy goals of the provision support this interpretation. Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct. While the section does not purport to prescribe parenting or care-giving techniques, it does serve to set the floor for the provision of necessaries, at the level indicated by, for example, the circumstances described in subs. (2)(a)(ii). The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty.
[33] Chief Justice Lamer continues:
I would hold that s. 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child. This is not one of the few offences, described in R. v. Creighton, [1993] 3 S.C.R. 3 (judgment rendered concurrently), in which the nature of an underlying act, unlawful in itself, is so risky that it is presumed to involve objective foresight of the risk of the consequences which follow and which give rise to a separate offence. The circumstances described in subs. (2)(a)(ii) are not just aggravating consequences, but are essential elements of the actus reus of the offence. Thus, the Crown must prove beyond a reasonable doubt both that the circumstances listed in subs. (2)(a)(ii) were objectively foreseeable in the circumstances, and that the conduct of the accused represented a marked departure from the standard of care required by those circumstances.
[34] While Chief Justice Lamer spoke for the majority in this decision, Justice McLachlin wrote on behalf of five justices on one aspect of the objective standard wherein she disagrees with that aspect of Chief Justice Lamer's opinion. In this regard her opinion represents the majority of the court's judgment. In Naglik she writes as follows:
...I respectfully disagree with the Chief Justice's conclusion that when considering what the accused "ought to have known" under an objective standard, one should have regard to Ms. Naglik's "youth, experience, [and] education", as advocated by the Chief Justice ... For the reasons discussed in R. v Creighton, [1993] 3 S.C.R. 3 (released concurrently), it is my view that in determining what Ms. Naglik "ought to have known", the trier of fact must determine the conduct of the reasonable person when engaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include the personal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth, inexperience, and lack of education were not suggested on the evidence to deprive Ms. Naglik of the capacity to appreciate the risk associated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person.
[35] The test is therefore simply this - does the accused's action or inaction constitute a marked departure from the conduct of a reasonably prudent parent in the circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life of this child? Has the Crown proven beyond a reasonable doubt that the failure to perform the required duty endangered the life of this child and was that objectively foreseeable in the circumstances. Further, does the conduct or failures of the accused represent a marked departure from the standard of care required by those circumstances. In examining the accused's conduct it is not permissible to take into account the accused's personal characteristics except to the extent those characteristics may have deprived her of the capacity to appreciate the risk of endangerment to the life of this child.
ANALYSIS
Duty
[36] There is no dispute that the accused owed a legal duty to provide necessaries of life in the form of nourishment and medical assistance pursuant to s. 215(1)(a) of the Criminal Code.
Endangerment to Life
[37] The defence argues that the Crown has failed to prove beyond a reasonable doubt that the accused's failure, if any, in fact endangered the baby's life.
[38] I will deal with this issue further in my reasons. However I would point out that while there was some dispute about whether Dr. Bolivar's opinion about whether the child's condition was within the appropriate range to conclude that the child was properly diagnosed as “failure to thrive”, she did testify the baby was, in her opinion, in danger of dying on May 26, 2004. There was no other medical evidence to contradict or rebut this opinion.
[39] Without making any finding or conclusion on this issue, at this time, I will examine the primary issue as to whether the accused's failure, if any, constituted a marked departure in the circumstances in accordance with the principles I described at length above.
[40] This will necessarily require an examination of the evidence and make findings of fact to determine:
1. What were the circumstances were present and apparent to the accused during the material times,
2. What risk if any was objectively foreseeable or more particularly whether a risk of danger to the life of this baby was present or likely,
3. What a reasonable person/parent would do in these circumstances, and
4. Whether the accused's “failure”, ie., her action or inaction, constituted a marked departure from what a reasonable parent would do.
[41] In R. v. Pertab, [2004] O.T.C. 1111, Hill, J. states the framework of analysis as follows:
[34] Generally, an omission in duty is criminalized only if a marked departure exists from the standard or conduct of a reasonably prudent parent in the circumstances where it is objectively foreseeable that the failure to seek medical attention would lead to a risk of danger to life or a risk of permanent endangerment of the child’’s health. An error in judgment or a failing on the part of a parent in accessing medical attention for a person in a position of dependency not amounting to a marked departure from the relevant standard imposed by the circumstances does not attract liability. Accordingly, a range of discretion is accorded a parent respecting discharge of the duty to provide a child medical attention unreviewable by the criminal law but constrained by the minimum threshold of the marked departure standard
(emphasis in original)
[42] However it must be kept in mind that this is an objective analysis and Justice McLachlin (as she was then) in her opinion has made it clear that personal characteristics or inabilities are not to be considered unless those personal attributes raise a doubt about the accused's ability to appreciate the risk. Accordingly, even if the accused did not have the ability to properly provide the necessaries of life unless her inabilities deprived her of the capacity to appreciate the risk associated with her failures, it is inconsequential that she was unable to properly nourish this baby, for whatever reason.
The Circumstances
[43] What were the circumstances at the material time? I agree with the defence that the critical period must be from May 18 to May 25, 2004 although I acknowledge the Crown's position that the entire period of April 21 to May 25 should be considered. Up to May 18, 2004 the baby was seen by the public health nurse regularly and particularly on May 6, 7, 10, 13 and 18 – five times in less than five weeks. It is difficult to conclude that during this period, at least, the baby's condition and the circumstances generally surrounding the child would have presented objectively as a situation where a risk of danger was present. If this was the case the public health nurse would have intervened, or the doctor for that matter, who examined the child on May 7, 2004. There is nothing in the testimony from either the doctor or the public health nurse, both Crown witnesses, suggesting that the circumstances apparent to them during this period of time connoted a risk the baby would be in danger. Clearly both professionals were concerned about the baby's weight and general “thinness” and the need to pay close attention to the feeding regime. However neither suggested that the baby's condition was to a point of risk of danger to his life or a likely danger of same.
[44] Clearly, though, the period of time which requires particular consideration and assessment is the week of May 18 to May 25, 2004.
[45] Before continuing my analysis at this point I want to address a reference by the accused, in her written submissions, to her being part of a “team” – that is herself, the doctor and the public health nurse. While I agree that these persons have clear professional responsibilities the accused's duty as defined in the Criminal Code is not shared with that of the doctor or public health nurse. There is no “team” from that point of view. These professionals are not parties to the duty which is contained in s. 215 of the Criminal Code for the purposes of this proceeding or for my analysis in this portion of my reasons. Having said this, the roles that each played relative to this child does form part of the “circumstances” in which the accused found herself in. Also the observations made and the actions or lack of actions taken by each is also informative of the objective nature of the analysis.
[46] What then were the circumstances during May 18 to May 25, 2004? The accused had a premature baby which had been with her since April 21, 2004 – one month after its premature birth. This would not in my opinion be a usual circumstance for a newborn child or the mother of a newborn. The very description of “premature” suggests the baby was born earlier than expected. Its stay in the hospital is suggestive that the baby's fragility would be difficult to assess.
[47] The accused was having considerable difficulty breastfeeding the child in the sense that the child was clearly not acquiring sufficient amount of milk at that point in time. Supplements of expressed milk and formula were needed. However, I accept the accused's testimony that she was breastfeeding regularly and her actions in this regard were not negligent or failing. However it was clear that these efforts were not sufficient.
[48] It is also clear that the accused was not supplying sufficient amounts of supplement, either expressed milk or formula, during this period given the lack of weight gain and the eventual condition the baby presented on May 26, 2004 and the consequential opinion rendered by Dr. Bolivar.
[49] During this period the baby continued to present as thin and on May 25, 2004 was described as emaciated and lethargic. Details of Dr. Bolivar's observations are more fully described above.
[50] However, other than general concerns regarding the need to increase weight, no serious signs of risk were noted by the doctor or public health nurse. The accused was never warned or cautioned before this week about the risk, if any, to her baby's health or life. The baby's general health to that point was described by the public health nurse in particular as generally satisfactory or at least no signs of serious concern or danger were noted.
[51] As I mentioned earlier, the pictures of the baby taken at the hospital were of little assistance because of their poor quality. The only valuable evidence of the baby's description came from the viva voce evidence of Nurse Daniels and Dr. Bolivar, the public health nurse and the accused.
What Risk was Objectively Foreseeable?
[52] I agree with the Crown that clearly if one does not feed an infant adequately to any great extent that it is reasonably foreseeable that the child's life will be endangered. However this statement simply begs the question—was it clear to the accused or to a reasonable parent in her circumstances that the child was not being fed adequately? In my opinion it was not clear. The better question in my opinion is as I posed above—was there a foreseeable risk of endangerment to the life resulting from the accused's action or inaction. Did the accused's feeding regime result in inadequate feeding and consequently create a risk to the child's life and was that reasonably foreseeable in the circumstances?
[53] What would a reasonable parent be able to foresee given the circumstances I described above? The question cannot of course be answered with the advantage of what Dr. Bolivar later diagnosed. It must be examined from the point in time I referred to above – particularly May 18 - 25 and the period up to and including that point in time.
[54] In my opinion it was not reasonably foreseeable between May 18 and May 25 or before that time in these circumstances that the baby was at a risk of endangerment to his life. I say this for four reasons:
1. The public health nurse who visited and counselled the accused regularly to May 18th never indicated such a risk existed and her testimony about the observations were not consistent with that conclusion. In my opinion, assessment of the risk must take into account the observations and actions by the public health nurse. Her actions are not consistent with the required objectively foreseeable risk.
2. The weight of the baby on May 18th in fact increased from the May 13th visit by the public health nurse and was in fact 160 g. more than the weight on May 6, 2004. It was not until May 25 that the weight loss was realized. There is no evidence that it would have been apparent after May 18, 2004 and prior to May 25, 2004.
3. The accused's own observations did not disclose such a risk. I recognize that the accused's subjective assessment is not determinative, however she is a competent witness to detail her observations of the baby's condition and while I would not give her observations undue weight they do lean towards a conclusion that such a risk did not exist. In short her evidence was credible and I accept it. Her own evidence did not suggest that such a risk was foreseeable.
4. The testimony of the neighbours also indicated that nothing was untoward about the baby's health. While their observations were outside the critical period their evidence does not favour a conclusion that such a risk was objectively present.
[55] It was only on May 25, 2004 when the public health nurse met with the accused at her home, weighed the baby and was “concerned” about the accused's conduct that prompted her to refer the matter to Dr. Hamilton. However, what she described would not have been the apparent risk I described above. In fact she did not testify that such a risk – described in the terms noted above – was present then. Although I recognize that on this day her description of the baby evidenced considerable concern for his health – the thinness, dryness, lack of strength and the baby's failure to make eye contact. She did however describe how the accused was not having a “good day” and she felt disinclined to confront her about the feeding regime.
[56] It is not clear however precisely why she consulted Dr. Hamilton – whether it was a serious concern about the baby's health or the inability to confront the accused coupled with a general concern for the baby's condition?
[57] I cannot however conclude beyond a reasonable doubt during this time a reasonable foreseeable risk to the baby's life was present or likely.
What would a Reasonable Person do in the Circumstances?
[58] In order to determine if the accused's conduct amounted to a marked departure from that of a reasonable parent in the circumstances, the Court must undertake some consideration of what a reasonable prudent parent would have done under the same circumstances.
[59] There is however no single response to this query and it is obviously linked in part to the ultimate question of whether the accused's failure amounted to a marked departure although it is possible for an accused person to have acted outside the range of what a reasonable person would have done without that action being shown to be a marked departure from reasonable conduct. Ordinary negligence is not enough–see R. v. Creighton, infra.
[60] Clearly a reasonable person in these circumstances would have acted prudently and cautiously in ensuring the baby was feeding regularly and adequately. One would expect that a reasonable person would recognize the signs that the baby was not gaining weight adequately. At the same time, a reasonable person would accept and rely upon professional advice and follow such recommendations. A reasonable person would seek further medical advice or intervention when the need became apparent. When a child's physical appearance deteriorates—the child becomes thin, lethargic, emaciated and exhibits the other signs noted by Dr. Bolivar and Nurse Daniels —a reasonable person would recognize those signs and seek and obtain medical assistance.
Did the Accused's Failure Constitute a Marked Departure in the Circumstances?
[61] In R. v. Creighton [1993] S.C.J. No. 91 at para. 113 McLachlin, J. (as she was then) said as follows:
Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Sansregret, [1985] 1 S.C.R. 570. To put it in the terms used in Hundal, the negligence must constitute a "marked departure" from the standard of the reasonable person. The law does not lightly brand a person as a criminal.[2]
[62] Ordinary negligence is not sufficient. A slight departure will not sustain a conviction. The Crown must prove beyond a reasonable doubt that a “marked departure” existed.
[63] As I alluded to above whether the accused's conduct constituted such a marked departure will depend in part on what the range of what a reasonable prudent parent would do given the circumstances present during the impugned period.
[64] Clearly, the accused's feeding regime and practices and procedures she employed were not sufficient to adequately sustain this child as the baby was required to be hospitalized. She failed to adequately feed the baby. However in my opinion, this was not apparent to the accused nor would it have been to a reasonably prudent parent. While the weight gain or lack thereof was a continuing concern for the public health nurse, she never expressed any serious concerns to the accused.
[65] While it is possible or even likely that a reasonable person, in these circumstances, may have been more attuned to the inadequacies of the feeding regime and employed more aggressive measures, particularly regarding the supplementary feeding, I cannot conclude beyond a reasonable doubt that the accused's actions were a marked departure from what a reasonable prudent parent might do in the circumstances.
[66] Throughout the entire period between April 21 and May 26, 2004 the accused met with the public health nurse and her own physician. While she questioned the emphasis on the attention being paid to the weight and the need for more visits, I do not categorize her attitude as “resistant”. She breastfed the child constantly although I acknowledg she could have done more regarding the supplementary feeding. In my opinion she complied with the general direction of the health professionals and while her actions could have been better and may, at best (from the Crown's perspective) been negligent they did not constitute a marked departure from that of a reasonable person.
[67] Particularly, I accept the accused's testimony about the reasons for discontinuing the formula feeding because the baby did not receive it well. Furthermore, while I question her decision not to express milk more and supplement the breastfeeding, I cannot conclude that even together with this failure her actions constituted such a variance from the reasonable standard to constitute criminal activity.
[68] The more serious health concerns and the serious conditions described and witnessed by Nurse Daniels and Dr. Bolivar on May 26, 2004 do not appear to have been present to the extent that they described, at least, during the period leading up to May 25, 2004. Obviously if the baby's condition was as severe as Dr. Bolivar described earlier that week the public health nurse would have recognized it on May 18 or at the very least on May 25, 2004. The public health nurse's testimony on her description of the baby is not consistent with the baby presenting in that serious a condition. Clearly, if the baby's condition as described on May 26, 2004 existed previously and the accused failed to act then arguably her actions or inaction may be or could be viewed more seriously and possibly be considered criminal. However, given the testimony of the public health nurse and the accused's own testimony I cannot reach that conclusion.
[69] Also, I reject the suggestion the accused was giving her baby a lower priority than other duties in her household—a reference to the Crown's argument that the accused was occupied arranging a birthday party and painting her kitchen. The fact of the matter is that life continues for any mother. These examples are not unreasonable activities for any mother to undertake even with a baby as fragile as baby James.
[70] Furthermore, there is no other evidence that suggests the accused was otherwise negligent or showed any general disregard for the care of her child or generally to other domestic responsibilities. As her counsel pointed out there was no evidence that her residence presented in less than an orderly manner or that the baby was not otherwise cared for. I can only conclude the baby presented as clean and cared for and his other obvious needs were attended to, as the public he health nurse, whose responsibility it was to make such observations did not testify to any adverse observations in this regard. Also, two of the accused's neighbours testified who were in a similar position to make observations about the state of the baby and the living conditions at the accused's residence. Neither testified that she made any observations which would lead to any adverse inference regarding the accused's responsibilities as a mother or homemaker.
[71] Finally, I want to address the Crown's argument that the accused simply “turned a blind eye” to the reality of her baby's condition and that by her own admission—her statement to the social worker that the baby's condition resulted from her own “arrogance and ignorance”—she acknowledged that she had failed in her duty.
[72] The accused presented as a self-assured, confident woman. In contrast the public health nurse presented as passive and non-confrontational. This nurse was extremely timid and cautious. At many points during her testimony, one could barely hear her responses and often she would pause for several minutes before answering questions. Whether this was because of her concern for her own responsibility or because of her personality is not entirely clear. However what is clear, in my opinion, is that the accused and the public health nurse have very different personalities.
[73] I want to be clear, though, that my comments in this regard are not intended to be unfavourably critical of either woman nor suggest that my assessment of their credibility is affected by my comments regarding their personalities. Nor, in the case of the public health nurse, are my comments intended to be suggestive of any failure on her part.
[74] However, I believe that their respective personalities did contribute to the lack of communication between these two women. It is clear that the public health nurse did not want to deal with the consequences of confronting the accused and did not have the personality to do so. This may have been in part because of the accused's confident manner. In any event the accused never heard the signs of urgency coming from the public health nurse, if they existed, particularly in the last week and even up to May 25, 2004. It was not unreasonable for the accused in these circumstances to continue as she did. I cannot conclude for these reasons that she was “blind” to the reality of her baby's circumstances. In fact when instructed she took the baby to the hospital and cooperated fully with the health professionals.
[75] In my opinion her conduct throughout the entire period given the circumstances existing cannot be said to have constituted a marked departure from that of a reasonable prudent parent. Certainly I cannot conclude this beyond a reasonable doubt.
[76] Finally, given that I am not satisfied beyond a reasonable doubt that the accused's failure represented a marked departure from that of a reasonable parent, it is not necessary for me to make any final determination whether baby James' life was in danger. Having said this however, I do not accept the submissions of the accused regarding the testimony of Dr. Bolivar or Nurse Daniels. It is clear to me that this baby was underweight and his health was seriously compromised and that the medical intervention was necessary. Whether the Crown has shown beyond a reasonable doubt that the baby's life was in danger however is not necessary for me to decide.
[77] In the result I am not satisfied beyond a reasonable doubt that the risk to the life of this baby given the circumstances was foreseeable and further I am not satisfied beyond a reasonable doubt that the accused's failure if at all to perform her duties constituted a marked departure from that of a reasonable prudent parent in the circumstances.
[78] For the foregoing reasons I therefore find the accused not guilty.
___________________________________
Alan T. Tufts, J.P.C.
[1]see R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Gosset, [1993] 3 S.C.R. 76; R. v. Finlay, [1993] 3 S.C.R. 103 and R. v. Naglik, [1993] 3 S.C.R. 122
[2]For a full discussion of the subject of objectively negligent based criminal offences see Subjective and Objective Standards of Fault for Offences and Defences, David M. Paciocco, 59 SASK. L.Rev. 271.