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| John L. Hill |
In December 2020, a passerby spotted J.K. barefoot and lightly dressed on the roof of K.M.’s duplex during winter. He appeared cold, thin and injured. After being helped down, the police were called. Around the same time, another passerby heard a child inside yelling that he was locked in. Police forced entry and found L.D. confined in a barren second-floor bedroom, tied shut with a yellow rope. He was crying and asking for his brother. The room contained only a pair of socks and vomit on the floor. A.S. was found asleep elsewhere in the home. K.M. and A.M. returned during the investigation, claiming they had briefly gone to a pharmacy.
Both boys were taken to the hospital. Medical staff observed that they were underweight and injured, with J.K. in worse condition. He had bruises and wounds at various stages of healing, was extremely thin and developed refeeding syndrome, indicating severe malnutrition. Both boys were vitamin D deficient; L.D. was iron deficient; and both displayed food-hoarding behaviours consistent with prolonged starvation. Although J.K. was on ADHD medication that could mildly suppress appetite, medical evidence concluded that prolonged calorie restriction was the likely cause of their condition. Within a month of proper nutrition, J.K. gained about five kilograms and L.D. over two kilograms.
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L.D., nearly 6 at trial, recalled being locked in the empty room, vomiting and seeing J.K. escape. He identified injuries in photographs and said K.M. caused them. A.M., though her evidence had weaknesses, confirmed that K.M. tied the rope to lock the boys in and described sleeping arrangements in which L.D. slept on the floor and J.K. slept in a closet.
J.K.’s Grade 2 teacher testified that before the pandemic, his attendance was poor and that he often arrived without lunch, prompting the school to provide food.
K.M., testifying in her own defence, denied abusing or starving the children but admitted confining them on Dec. 7, 2020, calling it a one-time safety measure while she went to a pharmacy. She attributed J.K.’s weight loss to his medication and illness, and blamed the children’s injuries on a cat, clumsiness, scratching bug bites and roughhousing. She denied striking them, except accidentally once with a robe belt. She said the boys’ furniture had been temporarily removed after a mess on the carpet and would have been returned the day they were apprehended.
The trial judge delivered a lengthy oral decision reviewing both uncontested and disputed evidence. He noted that it was undisputed that J.K. was found on the roof and rescued, that L.D. was discovered locked in a barren room tied shut with a rope, that both children were underweight and injured, and that both gained weight quickly once properly fed in care. He carefully reviewed the medical evidence, including Dr. Weiler’s opinion that J.K.’s ADHD medication could not explain his severe weight loss and that many of the boys’ injuries were inconsistent with accidental causes. He also acknowledged areas of uncertainty, including J.K.’s limited knowledge of how L.D. was injured, the fact that a cat had scratched J.K., and A.S.’s involvement.
The judge summarized K.M.’s testimony: she claimed she locked the boys in the room only once for safety reasons, said the furniture had been temporarily removed for cleaning, attributed J.K.’s weight loss to medication and blamed the injuries on cat scratches, roughhousing and accidents. He also outlined the defence’s arguments that alternative explanations existed for the children’s condition and that Dr. Weiler lacked objectivity.
The trial judge applied the framework from R. v. W. (D.), [1991] 1 S.C.R. 742 and reminded himself that the burden remained on the Crown. He then assessed each charge individually:
1. Assault with a weapon (J.K.): He rejected K.M.’s denial and found J.K.’s evidence compelling, convicting K.M.
2. Failure to provide the necessaries of life: The boys were malnourished, injured and confined in unacceptable conditions. K.M.’s conduct was a marked departure from the standard of care, and she possessed the requisite intent. She was convicted on these counts.
3. Criminal negligence causing bodily harm: The trial judge found a reasonable doubt as to the higher “wanton and reckless disregard” standard and acquitted her.
4. Unlawful confinement: The judge rejected K.M.’s claim that confinement was isolated. It occurred repeatedly. He found the confinement unjustified and dangerous, convicting K.M. on both counts.
5. Assault with a weapon (A.M.): Due to problematic and equivocal evidence, he acquitted K.M.
6. Assault with a weapon (L.D.): He had a reasonable doubt about the use of a weapon, but was satisfied that assaults occurred, convicting her of assault (without a weapon).
The Crown sought a global sentence of seven years’ incarceration after totality considerations, while the defence sought a conditional sentence, emphasizing Gladue factors and mitigation (R. v. Gladue, [1999] 1 S.C.R. 688). The judge found that K.M. showed limited insight into her violent and neglectful conduct and concluded that her Gladue factors did not significantly reduce her moral blameworthiness. He imposed a global sentence of 42 months’ imprisonment, structured through consecutive and concurrent terms across the various counts, reduced by 10 months for time spent on remand.
The Appeal Court found no grounds to overturn the conviction but disagreed with the sentence imposed. The court emphasized that sentencing judges have a mandatory duty to meaningfully consider the unique systemic and background factors affecting Indigenous offenders and how those factors relate to culpability. Because these errors affected the proportionality analysis, the court conducted a fresh sentencing.
K.M., now 41, is Indigenous and experienced significant childhood trauma: her mother attended residential school and was abusive. K.M. suffered physical, emotional and sexual abuse. She experienced racism and cultural dislocation. She was later confined and abused by an intimate partner.
The appellate court found these Gladue factors significant and directly connected to the offences, reducing her moral culpability — contrary to the trial judge’s view. Mitigating factors included no prior criminal record, a strong employment history, compliance with strict release conditions for nearly five years (including lengthy curfews and a prohibition on having children in her care), engagement in counselling, cultural supports and rehabilitation and ongoing efforts to regain custody of her daughter. The court also recognized that her extended time on restrictive bail conditions was a mitigating factor.
However, the offences remained grave. Two young children under 8 were repeatedly assaulted, confined and starved. They were in her care and trust. The neglect was prolonged and medically serious (including malnutrition and refeeding syndrome). Confinement led to a dangerous rooftop escape in winter. Victim impact statements documented significant harm.
Section 718.01 of the Criminal Code requires primary emphasis on denunciation and deterrence in child abuse cases, as reinforced in R. v. Friesen, 2020 SCC 9.
Although a conditional sentence was legally available, the court concluded that a community-based sentence would not sufficiently meet the objectives of denunciation and deterrence, given the gravity and duration of the abuse. A penitentiary term remained necessary.
The court reduced the sentence from 42 months to a global term of 36 months’ imprisonment, structured as follows:
- 18 months (concurrent) for the two failures to provide necessaries counts
- Six months for assault with a weapon (J.K.)
- Four months for assault (L.D.)
- 12 months (concurrent) for the two unlawful confinement counts
These were ordered consecutively, resulting in a total of 36 months. The court found this sentence was not unduly harsh under totality principles. After crediting 297 days of remand (as originally granted), the remaining sentence was 798 days from the date of original sentencing, subject to institutional calculation. The 96 days already served post-sentence would also be credited administratively. All ancillary orders remained in place, including a DNA order and a 10-year weapons prohibition.
In summary, the court found sentencing errors in principle, conducted a fresh Gladue analysis, reduced K.M.’s sentence by six months and confirmed that a substantial custodial term was required.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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