ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
1. The defendant Nancy Nelson plead guilty before me on May 8 2008 to a charge under section 215(2)(b) of the Criminal Code that between May 1 2005 and December 27 2006 she failed to provide the necessaries of life to a person under her charge, namely her aged mother Deborah Nelson, now deceased.
2. The defendant, now aged 44, is a single woman who always lived with and relied on her parents. When her parents became older, particularly after her father died in 1991, a role reversal evolved in which the mother Deborah became the dependant one while the defendant became the care-giver. She was not particularly good at it, and as time went on, the mother’s needs and dependencies increased dramatically. Deborah was obese, standing only 4’8″ yet weighing over 200 pounds. She developed health problems and suffered heart attacks. Her vision deteriorated to the point of almost complete blindness. By 2004 she had been diagnosed with dementia, which condition, by late 2006, would have been profound. She could be violent. She was incontinent of urine and stool. In what must rate as the understatement of the year, Dr. George, an expert gerontologist called by the Crown, said that Deborah’s care would have been a “challenge” for anyone. In fact her needs would have been very great; she would have required full time, constant supervision and care.
3. Instead of providing or seeking such care for her mother, the defendant ostensibly provided all the care herself, but in reality, at least in the latter part of Deborah’s life, provided little care of any kind. The two lived together in a modern 3 level townhouse in Simcoe that was owned free of mortgage. The condition of the home was absolutely appalling particularly on the upper level where Deborah apparently lived, with among other things, human feces covering the floor, the walls, the bed and bedding, a toilet absolutely full to overflowing with feces, and garbage piled high in the rooms. Flies were thick, even in December. It would appear that Deborah lived and ate in these filthy conditions.
4. In addition, the upper level had no barrier to the staircase, providing a significant hazard to a blind person, to say nothing of a blind person with advanced dementia. Compounding this hazard and other neglect, the defendant was absent from the home for long periods of time both for work and socially, leaving Deborah with no care or supervision at all.
5. There was no record of Deborah being seen by her doctor or any doctor since 2004. Though they had moved to Simcoe in 2002 the defendant continued to use a pharmacy in Toronto to obtain renewals of the deceased’s various medications. The Crown suggests that the defendant went to this trouble because switching to a local Simcoe pharmacy would likely have required taking Deborah to a local doctor, something the defendant wanted to avoid.
6. There were unopened blister-packs of the deceased’s prescribed medications found in the defendant’s car, suggesting that prescribed medicine was not given as required. However, post mortem examination revealed that most of the prescribed drugs, but for a sedative, were present in her system.
7. The cause of death was determined to be atherosclerotic coronary artery disease with acute thrombosis of the right coronary artery a heart attack. At time of death her weight and fallen to 120 pounds, still somewhat over¬weight for her height, but a dramatic drop over 2 years. While the deceased had minor abrasions, bed sores and was covered in fecal matter, there was no evidence of significant injury and no allegation that the deceased had been subjected to any assault or suffered a serious fall or other mishap. It could not be determined whether the conditions she lived in contributed to her death. The Crown’s case is that the defendant’s neglect endangered Maria’s life and health even if it did not ultimately cause or contribute to death. The neglect included:
Failure to provide the most basic hygiene
Failure to provide rudimentary safety.
Failure to provide supervision.
Failure to provide required health care.
8. It is clear that the defendant was aware of the deplorable condition of the home. In early 2006 she tried to get a mortgage-secured loan at a bank but withdrew her application because she did not want anyone to inspect the property. After her mother died she waited at least 24 hours to call the police and coroner so a clean up could be attempted.
9. The evidence of Gayle Ingrid and Sally Larson regarding the clean up attempt was revealing. Ingrid is engaged to the defendant’s brother Bill Nelson who has also been charged with this offence and is awaiting trial. Bill received a call from the defendant around 1:30 am on December 27th that their mother was dead. Bill, Ingrid and Larson immediately drove from Ingrid’s home in Scarborough to the defendant’s home in Simcoe. On the way they received a call from the defendant that they should pick up some garbage bags. On arrival they were shocked to see the condition of the place and the three set to work cleaning at least enough so that emergency services attendants could get past the garbage to get upstairs to remove the deceased. The defendant did little if any clean up work herself but rather devoted herself to crying and remonstrating “I wish it was me (who was dead) instead”. Ingrid and Larson both testified that they heard the defendant make a comment to the effect “I could get five years for this”. The making of this statement was disputed but I accept their evidence on this point.
10. Others arrived and also assisted in the clean up. After hours cleaning the main floor and second level, they worked their way up to the third level where they found the deceased “mostly on the floor but with arms up on the bed like she had been trying to get on it”; her feet and hands were black and she looked like she had been dead for some time. She was covered in human feces. The bedding was crusty with hardened feces. The sheets were changed and the deceased was placed on the bed. There was discussion about cleaning the body at which point Ingrid and Larson were becoming concerned that the situation was “not right” and that they may be tampering with a crime scene. That concern and the overwhelming and sickening condition on the third floor caused them to abandon further clean up efforts and go to a Tim Horton’s until the police and emergency personnel were called and arrived.
11. The evidence regarding the position of the deceased’s body, which I accept, contradicts the defendant’s statement to the police that claimed she found the deceased lying on her bed as if asleep and touched her and discovered her to be cold. The condition of the body as described and the coroner’s observation that rigor mortis had passed also suggests that the deceased had been dead longer than indicated by the defendant’s account.
12. The defendant shared the same environment that she subjected her mother to. It would appear that she occupied the bedroom on the upper floor next to her mother’s room and, with the exception of having a much cleaner bathroom, lived in the same filth and stench. In sharp contrast to her living environment, the defendant led a normal life outside the home. She held two responsible part time jobs and was considered a good employee. She had a boyfriend, a small circle of friends and a social life. She was described by some as being malodorous, overwhelmingly so at times, while others noticed nothing unusual in that regard
13. The defendant was aware that both in-home assistance and short and long term care facilities were available. She said that the condition of the home made her embarrassed to have anyone come in to assist. An attempt made in 2004 to have her mother attend an adult daycare centre met with her mother’s strong resistance and was soon abandoned. As for putting her mother in a long term care residence she maintained she was on the waiting list for an Italian speaking facility, though no confirmation of that was presented.
14. Money was an issue. When the defendant and her mother originally moved to Simcoe, the plan was for the brother Bill, who lived nearby, to help out. However he did nothing and provided no financial support. He had hardly seen his mother in the year before she died, a neglect that he will no doubt attempt to turn in his favour by pleading ignorance at his own trial. While the home was mortgage free, the defendant had quit her job at Hercules in 2004 to care for her mother, but found that the mother’s pension income of around $20,000 was not sufficient to sustain them. She started part time work at Pennington’s in late 2004 and then added a second part time job at Zehr’s in 2006. These two jobs still totaled only 21 hours per week. Had her mother gone into a home, the pension income would go with her, possibly making it difficult for the defendant to make ends meet. The Crown submits that this betrays a crass financial motive underlying the offence. A more benign view might be that she was financially stuck, making it even more difficult to extricate herself from the situation.
15. Despite the shortage of money, the defendant was a frequent consumer of take out food and appeared to be a busy on-line shopper. The living room of the house was full of items purchased on-line, new and in unopened boxes, many of which were apparently meant for sprucing up the place. Similarly, those helping in the clean up found no shortage of cleaning materials, new, unopened and still in store bags.
16. The defendant’s conduct and neglect is difficult to fathom. The defendant has no deficiency of intelligence. The Crown accepts that the defendant bore no malice toward her mother and in fact loved her mother “in her own way”. Why would she treat someone she loved and herself -in this manner?
17. A psychologist, Dr. Thomas Luck prepared a report and gave evidence on the sentencing hearing. He began seeing the defendant around the time she was charged with the offence in May 2007. He found her to be suffering from depression at that time and believed it was a condition that she had had for much of her life, though there was some evidence that her depression began to surface only after the offence. From her personal history Dr. Luck concluded that she was a person who dealt with stress primarily by engaging in avoidance and with respect to the care of her mother, that the defendant avoided coming to terms with her shortcomings as a caregiver and as conditions became worse and worse, became more and more debilitated, overwhelmed and unable to do what she knew had to be done.
18. I accept Dr. Luck’s analysis, for the most part. Stated in my own terms it is my view that the offence is rooted in the defendant’s life long dependence on her parents which produced an adult only marginally capable of looking after herself and far too incompetent and probably too lazy to handle the task of caring for a high needs senior. I suspect that she barely knew how to clean and cook or at least had little interest or energy to do either. She eventually abandoned both chores, feeding herself and her mother mainly with take-out and forgoing cleaning altogether. As the situation grew worse, it moved further and further beyond her competence to handle and her limited industry to correct. Her best intentions for change, evidenced by purchases of cleaning supplies and the like, were halted in the preparation stage by the overwhelming nature of the task coupled with her limited affinity for hard work, possibly aggravated by the inertia of depression.
A fit sentence:
19. The offence to which the defendant has pleaded guilty is a hybrid offence which when proceeded with by indictment, as here, carries a maximum sentence of five years imprisonment. There is no minimum. Accordingly, all sentencing options available under the Criminal Code are open to consideration. The Crown submits that a sentence of actual imprisonment in the area of one year is appropriate; the defence questions whether a sentence of imprisonment at all is appropriate but submits that, if it is, it should be a conditional sentence.
20. Determination of the appropriate punishment must, as always, be guided by the principles of sentencing, most of which have now been codified in Part XXIII of the Code. The fundamental principle of sentencing is that the punishment should fit the crime that it be proportional to the gravity of the offence and the degree of responsibility of the offender: (s 718.1). Punishment should attempt to be a wise blend of denunciation, condemnation, deterrence, and rehabilitation: (R v Willaert (1953) 105 CCC 172(Ont CA); s 718) The blend that is appropriate in any case will be an individual determination and will depend on the particular circumstances of the offence and the circumstances of the offender, including all relevant aggravating and mitigating circumstances: ( s 718.2(a)). However, while each sentence is to be individualized, it should also be reasonably within the range of sentences imposed in similar cases, (s 718.2(b)) particularly as directed by decisions of the Court of Appeal.
21. I have the advantage of the decision of the Court of Appeal in a similar case in R v Peterson  OJ No 4450, the only decision cited by counsel: There, a majority of the Court upheld the decision of the trial judge of six months imprisonment plus probation and community service. The case is similar to the present case in many respects in that for a roughly similar length of time, the defendant kept his aged dependant father in a deplorably unsafe and unsanitary home environment. Unlike this case however, the accused in Peterson lived in a separate area of the home apart from the conditions his father was subjected to and treated his father with “heartless indifference” and intentional cruelty. Peterson did not plead guilty but rather had a trial and continued to dispute his responsibility even in the Court of Appeal. On the other hand, the abused senior in Peterson did not die but had the good fortune to have come to the attention of neighbours and the police and be rescued, presumably to live out his days with some reasonable care and dignity. By contrast Deborah Nelson actually died blind, alone and no doubt confused and afraid – in the horror for which the defendant was responsible the most pathetic end for a human being that could be imagined. The gross indignity and neglect even continued past her death when the defendant inexplicably left her in the position described, lacking the decency to place her in a position of repose or even to cover her.
22. It is clear from the Peterson decision that, in similar cases, a sentence of imprisonment is appropriate and necessary in order to properly reflect the gravity of the offence, to denounce the abuse of elderly helpless parents and to satisfy the principles of deterrence. So directed, the only issue for me is whether the sentence, though still nominally a sentence of imprisonment, can be served in the community under a conditional sentence. The dissenting judge in Peterson held that it was an error in principle for the trial judge to not impose a conditional sentence, while the majority found no error in the trial judge’s exercise of his sentencing discretion in the circumstances of that case in imposing an actual jail sentence. The majority did not reject the possibility of a conditional sentence in other similar cases.
23. Conditional sentences have been part of the sentencing landscape in Canada for over a decade. They are available for any offence provided the offence does not carry a minimum term of imprisonment, that an appropriate term of imprisonment is less than two years, and that the defendant is not a danger to the community. These points are usually non-¬controversial and are conceded in this case. There is one other requirement – that such a sentence would be consistent with the fundamental purpose I have reviewed other authorities, including those cited in Peterson and those cited in R v Beaudry  OJ No 5708 (Ont CJ D Harris J); R v Longford (Unreported Sept 26 2006, Ont Sup Crt Mackinnon J and principles of sentencing. Despite some clear and helpful interpretations from the Supreme Court of Canada, particularly in R v Proulx  1 SCR 61 and the Court of Appeal, most recently, R v Thurairajah (2008) 229 CCC3d 331, this aspect of the conditional sentence decision always presents the most difficulty. In some circumstances a conditional sentence can adequately address these sentencing objectives, particularly if the sentence is extended or punitive conditions are included; in others it is inadequate and only a sentence of actual incarceration will be considered proportionate to the gravity of the offence and will suffice to denounce and deter.
24. I am directed by statute and by case law to consider all other available sanctions other than imprisonment that are reasonable in the circumstances (s 718.2(e)) and to give “serious consideration” to a conditional sentence where the offence and offender are otherwise eligible, and thus give effect to Parliament’s intention to reduce reliance on imprisonment as a sentencing response: R v Proulx. I therefore ask myself whether only a sentence of incarceration will suffice to meet the recognized sentencing objectives. On consideration of all of the circumstances, and with considerable vacillation and misgiving, it is my view that the answer is “No” – that a conditional sentence will be adequate. While the circumstances are grotesque, I consider as pivotal the absence of intentional cruelty or intentional physical abuse and the acceptance of responsibility by the defendant through the plea of guilty.
25. I therefore impose a sentence of imprisonment of one year but direct that it be served in the community subject to the defendant’s complying with the conditions in a conditional sentence order. Those conditions will include the mandatory conditions and further conditions that:
The defendant will be on house arrest every weekend through the entire one year term of the Order. She will remain in her residence at all times from Fridays at 7 pm to Mondays at 6am except with the prior approval in writing of the CS Supervisor. (This is subject to adjustment depending on counsel’s submission as to her work schedule and other circumstances).
The defendant will perform 100 hours of community service at a rate of
not less than 10 hours per month commencing as arranged by the CSS.
26. I will hear submissions on other conditions.