Winnipeg Free Press - PRINT EDITION

Dad cleared after leaving disabled son alone

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A Winnipeg father has been cleared of any legal wrongdoing for leaving his severely disabled eight-year-old son home alone in the middle of the night while he staggered through the neighbourhood drunk.

The 30-year-old man, who can't be named to protect the identity of the child, walked free Monday after a judge found there was insufficient evidence to prove the charge of failing to provide the necessities of life.

Provincial court Judge Kelly Moar admitted he "won't be handing out an award" to the father, but said there is a big difference between bad parenting and criminal conduct.

Moar said case law is clear the act of leaving a child alone doesn't automatically warrant a conviction. He said an absence of other damning evidence, such as an injury to the child, was a big factor in his verdict.

The July 2012 incident began when police spotted the man stumbling down Sargent Avenue around 4 a.m. with his four-year-old daughter in tow. Officers stopped to question him and he became aggressive toward them, court was told.

The man eventually spit at officers, then put up a struggle as they tried to arrest him. Police eventually handcuffed him, all while the little girl looked on. She then asked police if "we're going to go get my brother now?" Officers weren't sure what she meant, so they questioned the accused about whether he had other children in his care.

But the single father of six lied to police, saying his other kids were all in the care of other adults outside the home that night.

The police didn't believe him and went to his nearby apartment, where they found the young boy alone. He was seated in his bed, wearing a diaper filled with feces, court was told, but he was otherwise in good health.

Crown attorney Adam Bergen argued Monday the accused should be found guilty because he clearly abandoned his role as a responsible parent when he tried to mislead the officers. He said the special-needs child has serious medical issues, including epilepsy, and isn't able to feed himself or even get water without assistance.

"He makes up this very detailed story about the child being with someone else. This is a child who needs a lot more than the ordinary eight-year-old needs in terms of attention, supervision and care," Bergen said. "What he does is attempt to prevent the police from finding (the son). He was compromising the health or welfare of his child."

In that sense, Bergen argued this was a unique case where the charge was met more by what the father didn't do -- tell the truth -- than by simply leaving his son alone. The Crown admitted they can't prove the boy was left for more than a few minutes, as the father claims.

"There was not a potential to endanger (the son's) life here," defence lawyer Rod Brecht told court. Brecht filed a "no-evidence" motion once the Crown closed its case, and Moar ruled in his favour.

Brecht said his client had been drinking heavily with a cousin the previous evening and passed out. His daughter awoke him just before 4 a.m., asking to watch movies. The father decided he'd walk to his mother-in-law's nearby residence to see if she could care for the girl so he could go back to sleep.

But there was no answer at the door, so the father was returning home when the police stopped him. Brecht admits his client has battled alcohol addiction for many years, and it got the best of him that night and led to the altercation with police.

The accused did plead guilty Monday to a charge of assaulting a police officer and breaching a previous court order to abstain from alcohol. He was given time in custody and probation, as he's spent the past 11 months behind bars without bail.

Child and Family Services has taken custody of the children, court was told.

Republished from the Winnipeg Free Press print edition September 17, 2013 A3

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