In the middle of a pandemic, are our children really safe?
Two Ontario courts recently punished poor parenting: the Ontario Superior Court in R v CO et al and the Ontario Court of Appeal in R v Lis. Both of these decisions were released during the pandemic and after the Crown had appealed the prior rulings of the initial jurist.
R v CO et al
In R v CO et al, police executed a search warrant on the accused’s residence and found their 4-year-old daughter in bedroom on a mattress that smelled like urine. The child was extremely dirty and wearing soiled pyjamas. The child was in a bedroom with a rope tied to the bedroom door to prevent it from opening. The apartment was filled with rotting food, insects, garbage and mould. The accused showed some signs of mental health issues – poor socialization and weak adaptive functioning. Child welfare services removed the child from the home. Police then jointly charged both parents with failing to provide the necessities of life and with forcible confinement. At trial, the judge found the accused not guilty. The judge found the Crown led no evidence of the harm caused by exposure to the unsanitary conditions of the apartment. The judge accepted the parents’ evidence that the child was locked in the bedroom from time to time to prevent her from accessing cleaning products.
On appeal, the court found a sanitary environment has been legally deemed a necessity of life. The Crown does not need to prove to the court there was risk of actual harm from the specific sanitary conditions of an environment. The appeal court convicted the accused and sent the case back to the trial judge for sentencing.
On the charges of forcible confinement, the matter was sent back down to the trial court for a new trial. The appeal court found the trial judge did not properly consider whether confining the young child to a bedroom overnight, in an unsanitary room, fell within legally acceptable parenting. Rather, the trial judged erred by finding generally parents have the right to prevent their children’s movements for their own safety. It was also held that the trial judge failed to consider why the cleaning products accessible to the child couldn’t be moved out of her reach.
R v Lis
In R v Lis, the Ontario Court of Appeal intervened in further bad parenting when a 9-year-old girl died of dehydration and malnutrition. The child who was also developmentally and globally delayed due to her cerebral palsy. Children’s Aid Society was involved due to the mother’s substance abuse issues and her prior inadequate supervision of her children. The mother noticed her child was not feeling well several days before her death. The accused did not take her child to the hospital. She pled guilty to failing to provide the necessities of life. The judge sentenced her to 17 months of time served, followed by 3 years of probation.
The Court of Appeal changed the sentence of time served to a sentence of 3 years, less the 17 months. The court noted the sentence of time served was demonstrably unfit for the crime of failing to provide the necessities of life to a child under the age of 18. The original sentence did not send the right message to the community because it did not reflect denunciation and deterrence.
Are our children safe?
What’s clear is that the appeal courts are not shy to decide in favour of just punishment for neglect and lack of care in the parent-child relationship. Amidst a global pandemic, these cases serve as a cautionary tale at a time when mental health concerns and triggers are high, and income is low. The cases of Lis and CO are certainly extreme examples of tragedy caused by a lack of care by a parent for a child. Yet, by no means did the appeal courts cite these cases as the lowest threshold that would attract such criminal charges and respective punishments. Rather, it is clear that state intervention is necessary and inevitable when poor parenting is reported.
Given the large number of children at home during the pandemic, how do we know if our children are safe (without any prior child welfare involvement)? Pre-COVID, a teacher or supervisor at school may notice injuries or other signs of abusive and neglectful home environments. When or how can this come to light if children are locked in the home with their abusers? Or with their guardians who are experiencing severe mental health episodes triggered by the isolation caused by the pandemic?
Ontario recently developed a mental health crisis line — similar to 911 but for mental health crises. However, it still requires an individual to make that call. What if the parent or guardian of a child does not want to attract the attention of the state? Or what if that parent or guardian is suffering from mental health or substance abuse issues that cause them to be incapable of proper parenting? How can we as a society continue to enforce and monitor the safety of our children during this period of unprecedented isolation? After all, one of the main objectives of the appeal rulings in Lis and CO was to denounce and deter others from the same behaviour reported in those cases.
The law can only operate properly if it can be enforced. And individuals can sometimes only receive help (whether it be a child, an adult, or both) if help is offered. To be clear, this is not a call to lift the pandemic protocols, or an uninformed rant about removing any stay-at-home-orders. (No offence to those of you who don’t believe in the pandemic safety measures, but I am not one of you). Rather, it is a request, albeit a difficult one, to keep your eyes and ears open. Check on the mental health and well-being of members in your community and your families, and within yourselves.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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