The daycare operator charged in the death of a nearly one-year-old boy on his first day of daycare in January 2011 will spend the next 18 months in prison.
In his reasons for sentencing, B.C. Provincial Court Judge David Stone noted many of the supporting cases offered by both Crown and defence lawyers involved more aggravating circumstances, such as a period of abuse or neglect preceding the death, than the case of Maria McFerran, who last September pleaded guilty to criminal negligence causing death.
McFerran was operating the Rattle 'n' Roll daycare out of her Port Coquitlam home when Arto Howley, just two days away from his first birthday, arrived for his first day of daycare on Jan. 17, 2011. He died just four hours later.
As an unlicensed daycare McFerran was allowed to care for fewer than three children not related to her, but on the day Arto died she was looking after him as well as six other children.
McFerran had strapped him into a car seat with the padding removed and left him alone, with no baby monitor on, in an upstairs bedroom for a nap. When she came back to check on Arto an hour later he wasn't breathing; an autopsy found he had slumped down in the car seat and was strangled by the straps.
Before calling 911 McFerran hid the car seat in the garage and told first responders Arto had been sleeping in a playpen and likely choked on a blanket. That night, however, she told her husband she had lied and went to police the next day to tell the truth.
Investigators subsequently found eight car seats at the Shaughnessy Street home.
An expert who examined the seat Arto had been in found it was not safe or suitable for use as a child restraint device.
Defence lawyer Mark Bussanich had suggested a jail term of six to 12 months while Crown prosecutor Jay Fogel argued for a term of two to three years for McFerran.
"A common outcome in cases involving criminal negligence causing death, where the criminal act is not part of a pattern of criminal conduct but was an isolated negligent act, the jail term imposed could be served by way of a conditional sentence," said Judge Stone, adding recent changes to the Criminal Code mean conditional sentences are no longer available for cases such as McFerran's.
Another section of the Criminal Code emphasizes the need for "denunciation and deterrence of such conduct" for offences involving the abuse of a person under 18.
"There is an obvious distinction, in my view, between cases where deliberate abuse was inflicted versus those where the accused ought to have known better and ought to have taken better care, but whose error caused a tragic situation such as the one before me," said Judge Stone.
"Both families involved in this case...have been affected in a lifechanging and permanent way by Ms. McFerran's conduct," he continued. "In this case there is no way any sentence that I can impose is going to rectify the tragic incident...affecting these two families."
Judge Stone did not impose a period of probation following the 18-month sentence, noting it was "unlikely that this accused will be before the courts in the future."
The 49-year-old mother of two wiped away tears throughout the sentencing hearing and bowed her head sobbing as the sheriff handcuffed her and led her away, while Arto's mother, Victoria Howley, watched from the courtroom's front row.
Howley spoke to media following a hearing last month and pleaded for changes to a daycare system that doesn't always give parents the full picture.
"Our message is for the thousands of families like ours who do not have the luxury to stay at home with their children and who must rely on daycare," she said. "If we had known the truth about Maria, about the complaints laid against her, about the inspections she failed, about the children she had endangered and the families who left her daycare because they feared for their children's safety, we never would have trusted her with Arto's life.
"The system should be set up so families can easily access all the information they need to make one of the most important decisions they will ever make...but it isn't. All we hope is that his death is a wake-up call for parents and anyone who cares for children."
Crown counsel spokesperon Samantha Hulme said they will not appeal the sentencing because there was no legal error made by the judge.
"In this case the judge has properly considered the circumstances of the accused, the facts of the case, applicable law and all the sentencing principles in the Criminal Code, and he gave a sentence that's within the range of what's available for this type of offence," Hulme said. "We don't think there's any basis to launch an appeal."
