The circumstances of Flo’s death become even more disturbing when put in context: Dahl was a caregiver contracted and paid by Kinsight, a local non-profit, to support Flo, who had Down syndrome and high care needs. This “most unusual and tragic case” is complicated further by the fact that, on all accounts, Flo and Dahl had a close and loving relationship. Flo’s own sister, Sharon, described Dahl as an “amazing” caregiver.
Yet, as many persons with disabilities who have high care needs can attest, the road to hell is often paved with good intentions. Even the most well-meaning caregivers, under the presumption that they know best, may feel empowered to make unilateral decisions regarding the care of persons with disabilities under their charge without meaningfully consulting the individual or their supported decision-making team. Canadian courts have been quick to accept these decisions as justifiable, even when they culminate in so-called “mercy killings.”
The B.C. Court of Appeal’s ruling in R. v. Dahl 2023 BCCA 336, is an important reminder that decisions made for persons with disabilities out of love and compassion cannot excuse mistreatment. The ruling can also be interpreted as calling such surrogate decision-making what it is — a form of abuse.
Some background is necessary. Dahl and Flo first met each other in the 1990s, when the former began working as an aide at the latter’s group home. When that group home was shuttered in 2010, the decision was made for Flo to move in with Dahl as part of a shared living arrangement. This arrangement was facilitated and overseen by Kinsight, a non-profit organization for persons with developmental disabilities that receives public funding.
The Court of Appeal rather generously described Kinsight’s supervision of Dahl as “not optimum.” Although Dahl was required under her employment contract to submit quarterly or biannual reports concerning Flo’s welfare, no reports were filed in 2017 or 2018, and no one from Kinsight noticed or questioned these omissions. It was during this period that Dahl stopped taking Flo to all of her medical appointments; eased Flo off her pain medication without authorization from a medical professional; withdrew her from social activities she had previously enjoyed; and instituted a number of “safety” measures around the house, including installing a locked gate on Flo’s doorframe.
Dahl’s conduct during this period may have been informed by her misconceptions about the health and longevity of persons with Down syndrome. She confidently told the court, for example, that, “at a certain age, people with Down syndrome develop dementia,” and, in her statement to police, she claimed that she had been told “not to expect [Flo] to live past 50.” As the medical examiner explained, however, persons with Down syndrome, although more predisposed to different health conditions like heart diseases and leukemia, do not “age faster” than the general population. In fact, the average lifespan of a person with Down syndrome today is 60 years old, and many persons with Down syndrome live well into their 70s.
Dahl’s belief in these myths, coupled with the complete and unchecked power she wielded over Flo’s life, came to a head when Flo began to show a disinterest in food around April 2018. Dahl assumed that Flo was at the end of her life, and, according to the trial judge, “unilaterally created, imposed, and abetted” a plan to oversee Flo’s death. Given Flo’s fear of doctors, and Dahl’s own belief that a hospital was an inappropriate place to send a loved one who is dying, no medical attention was sought. When asked in cross-examination whether she considered calling 9-11 in the days leading up to Flo’s death, Dahl replied, “Well, what [were] they going to do? This was where she was going to die, in the comfort of her own home, in her own room, with me next to her. … I’ve taken care of Flo all these years, and when she needs me the most, she gets taken to die somewhere else.”
In any other circumstance, it would be absurd for a caregiver to attempt to justify creating the circumstances of a medical emergency, and then overseeing that person’s subsequent death, on the basis that the caregiver themselves felt it was the best course of action. According to the reasons for sentence, however, Dahl’s actions, while “fatally [and] irrationally skewed away from her responsibilities and common sense,” stemmed from a “certain view of compassion” that diminished her moral blameworthiness. Although Dahl was found guilty under s. 215 of failing to provide Flo with the necessaries of life, the sentencing judge determined that her motives — coupled with the fact that there was “no evidence of abuse”, in the sense that there was no “physical or emotional mistreatment” or “violent or cruel behaviour” directed towards Flo — mitigated in favour of a 12-month conditional sentence, followed by 12 months of probation.
As the Court of Appeal affirmed, however, Dahl’s lack of mala fides should not have played such a definitive role in determining an appropriate sentence. In allowing the Crown’s appeal, the court found that “the judge, in his proportionality analysis, actually elevated … the respondent’s rehabilitation, personal circumstances, compassion, motives, and belief she was doing the right thing, to essentially the same level as deterrence and denunciation.” The result was a disproportionate and demonstrably unfit sentence, which was substituted for a 15-month period of incarceration (although, because Dahl had completed her conditional sentence at the time of appeal, this will not be served).
It is significant that Justice Patrice Abrioux, who authored the unanimous decision, specifically rejected the trial judge’s claim that Flo had not been abused. In his words, “there can be no doubt that, no matter her motives and compassion, the respondent’s conduct towards Ms. Girard in the last months of her life — which resulted in death by starvation that may well have been avoided had Ms. Girard been referred to medical care in a timely way — constituted abuse.”
The Court of Appeal declined to identify what specific aspects of Dahl’s conduct constituted abuse. Does the above statement refer exclusively to Dahl’s failure to provide Flo with the necessaries of life (e.g., food and timely medical care)? Can more be included in this reference — for example, Dahl’s failure to consult with her supervisors at Kinsight? It is unfortunate that the Court did not take the opportunity to elaborate on its articulation of “abuse,” which, as an undefined term in the Criminal Code, is widely open to judicial interpretation.
Nonetheless, the Court of Appeal’s ruling in Dahl sets a valuable precedent. It contributes to a body of case law that identifies what type of conduct may constitute abuse against vulnerable persons who rely on others for their health and safety. It puts caregivers on notice that decisions regarding those in their charge cannot be made unilaterally. It signals that the mistreatment of persons with disabilities cannot be excused by claims of compassion or love. And, by implication, the judgment reinforces the inherent dignity and rights of persons with developmental disabilities, which all actors in Canadian society must work collaboratively to protect.
Kate McInnes is a Vancouver-based lawyer and a student in the M.Sc. in International Human Rights Law program at the University of Oxford, where her research focuses on preventing and prosecuting violence against persons with developmental disabilities.
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