R v Siwicki, 2019 MBCA 104

Citation: R v Siwicki, 2019 MBCA 104 Date: 20191017 Docket: AR18-30-09115 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Janice L. leMaistre BETWEEN : ) R. N. Malaviya HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) M. P. Cook ) for the Respondent ) - and - ) Appeal heard: ) May 7, 2019 RONALD PETER SIWICKI ) ) Judgment delivered: (Accused) Respondent ) October 17, 2019 On appeal from 2018 MBQB 115 LEMAISTRE JA [ 1 ] More Canadians than ever are living to the age of 85 and beyond.

Society benefits from the wisdom and life experience of our elders. It is essential that we protect them and provide for their care, particularly as they experience physical and mental-health challenges associated with aging. This case is about the consequences to an adult child who has failed in his duty to provide adequate care for a vulnerable parent in difficult circumstances. [ 2 ] The accused pled guilty to criminal negligence causing death pursuant to

section 219 of the Criminal Code (the Code ) for causing his mother’s death by failing to provide her with the care she required. The sentencing judge sentenced him to three months’ incarceration. [ 3 ] The Crown seeks leave to appeal and to appeal the accused’s sentence on the basis that the sentencing judge committed errors which resulted in an unfit sentence.

It argues that a strong message must be sent to the community in order to denounce and deter neglect of the elderly and seeks the imposition of a sentence which reflects Canadian society’s respect for and responsibility to its elderly population. [ 4 ] I have had the benefit of reading the dissenting reasons of my colleague.

I respectfully disagree with his conclusion that the sentence imposed was not demonstrably unfit. [ 5 ] For the reasons that follow, I would grant leave to appeal, allow the appeal, impose a sentence of two years’ incarceration and credit the accused for 30 days of pre-sentence custody (20 days credited at a rate of 1.5:1). I would also credit him for the two months of time served after sentencing, for a total sentence going forward of 21 months. I would not stay the sentence.

Background Facts of the Offence [ 6 ] Sometime on or before November 21, 2014, Elizabeth Siwicki, the accused’s mother, fell out of her bed onto the floor and was unable to get up. She remained on the floor on her side for the next 26 days until her death on December 17, 2014. While the accused, who lived with his mother, provided her with water and nutritional drinks (Boost) during the time that she was lying on the floor, he was unable to get her back into bed, and did not move or reposition her as she was lying on the floor or seek medical or other

assistance for her. [ 7 ] The autopsy revealed that Mrs. Siwicki, who was 89 years old, died from complications due to advanced decubitus ulcers (bedsores) and prolonged immobility from lying on her side. While some of her wounds showed evidence of healing, others were infected into the bone. The sentencing judge described the deplorable condition of Mrs. Siwicki’s body on the day of her death as observed by the first responders (at para 3): She was covered in feces and urine, her hair was matted and dirty and she had several gaping and infected bedsores on her leg and hip.

The house was described as being in an appalling state: cluttered, dirty and smelling of urine and feces. The carpet beside the bed in the bedroom was soaked with both. [ 8 ] The pathologist opined that Mrs. Siwicki would have been in pain for some time as the infection spread and until nerves in the area of the wounds died. Her death was completely preventable. She was not dehydrated or malnourished and she would have survived with appropriate care. Mrs. Siwicki’s injuries were extreme and would have been clearly evident to anyone providing a reasonable level of care.

Circumstances of the Accused [ 9 ] Information about the accused’s background and circumstances was provided by a probation officer who prepared a pre-sentence report for the sentencing hearing and by counsel for the accused at the sentencing hearing. [ 10 ] The accused was raised by his mother and father and had a sister who was seven years his senior. He described his family as loving and close. His sister eventually moved out of the family home and married. The accused stayed behind. After graduating from high school, the accused went to university briefly before dropping out.

He worked at various jobs and played music; however, he struggled financially and so his parents supported him. When an opportunity arose for the accused to work outside of the city, his parents refused to let him move out. Over the years, the accused dated two or three women, but did not have any long-term relationships because his mother did not approve of the women he dated. According to the accused, his parents were his decision- makers throughout his life. [ 11 ] The accused’s father died in the hospital in 1996. His sister also died in the hospital in 2011.

By that point, the accused and his mother had come to rely on one another. [ 12 ] By 2012, Mrs. Siwicki’s health had begun to deteriorate and she was on medication for thyroid issues and high blood pressure. According to medical records, her prescription medication was last refilled in March 2014 with a three-month supply. A geriatric mental-health assessment conducted at her home recommended day treatment at Seven Oaks General Hospital for issues including cognitive changes, anxiety, mood and her risk of falling in the home as a result of prior falls.

According to the accused, his mother refused to go to the hospital for treatment. The last time she saw a doctor was in early December 2012. [ 13 ] The accused explained that in 2012, he called 911 when his mother went outside and was not properly dressed. When an ambulance arrived, she refused to go to the hospital and expressed anger towards him for calling the ambulance.

She made it clear on this and other occasions that she did not want outside care or help and did not want to go to the hospital, fearing that she would die there. [ 14 ] The accused said that after his mother fell to the floor in November 2014, he tried unsuccessfully to get her back into bed, but he did not seek assistance in order to honour her wishes.

He did, however, provide her with water and nutritional drinks. [ 15 ] The accused was 62 years old and still living with his mother when she died in their home. [ 16 ] After his arrest, the accused remained in custody until January 5, 2015, when he was released on bail under the supervision of The John Howard Society of Manitoba, Inc. (The John Howard Society) Bail Assessment, Support and Supervision Program. [ 17 ] The pre-sentence report indicates that the accused made significant changes in his own life after the death of his mother.

He began to address his own health issues, which included diabetes, episodic heart arrhythmia and muscle wasting in his hands. Since 2015, he has been retired and living on his own in an apartment, supporting himself with retirement benefits. He has a girlfriend and a large support network of friends. In 2017, he had quadruple heart bypass surgery. [ 18 ] Those who knew Mrs. Siwicki described her in letters of reference filed on behalf of the accused and to the probation officer for the pre-sentence report as a strong, independent matriarch who was stubborn, hoarded in her home and suffered from dementia.

The accused was described as immature, indecisive and passive: never going against his mother’s wishes or becoming independent. The probation officer assessed the accused as being a very low risk to reoffend. [ 19 ] A report prepared for the sentencing hearing by Dr. Jeffrey Waldman, a forensic psychiatrist, described the accused as “shy and somewhat passive”. Dr.

Waldman stated that, as a result of his parents’ emotional and financial support throughout much of his adult life, the accused struggles with decision making; he has “a pattern of relationships consistent with dependent traits”; and he is “at risk of hoarding in the future without support.” Dr. Waldman identified neither any mental-health concerns nor any mood or anxiety disorders in 2018 when he prepared the report and in 2015 when he had seen the accused previously.

He opined that the accused’s history of hoarding had, for the most part, been addressed through peer supports and problem solving and that the accused did not pose a risk to himself or others. [ 20 ] A report from The John Howard Society prepared in June 2018 also describes the changes made by the accused and

states that he is now thriving in the community. Sentencing Hearing [21] At the sentencing hearing, the Crown submitted that the appropriate sentence was in the range of three to four years. Indoing so, it relied on the following cases: • In R c Margaret Grant, 2009 NBPC 17, the accused pled guilty to failing to provide the necessaries of life to her mother,who had been left sitting in a chair and without adequate food and water for three to four months. While the sentencing judge found thatthe accused’s conduct contributed to her mother’s death, it was not the cause of death.

The accused, who had limited intellectualcapacity and no record, was sentenced to four years’ incarceration. • In R v Noseworthy, 2007 CarswellOnt 9604 (Sup Ct J), the accused pled guilty to failing to provide the necessaries of lifeand was convicted after trial of manslaughter for the abuse and neglect of his mother, who suffered from Alzheimer’s disease.

The trialjudge concluded that the principles applicable in cases of abuse and neglect of children also apply in cases involving elder abuse andneglect as “the victims are innocent, utterly vulnerable and defenceless” (at para 29); that elderly persons who are frail and cognitivelyimpaired deserve special treatment due to their vulnerability; and that the appropriate range of sentence for the manslaughter offence wasfive to eight years.

He sentenced the accused to seven years’ incarceration for manslaughter and two years concurrent for failing toprovide the necessaries of life. • In R v McDonald, 2013 SKCA 38 (McDonald CA), the accused pled guilty to criminal negligence causing death for failingto obtain medical care for her young daughter, who had a skin infection “for a prolonged period of time” (R v McDonald, 2012 SKQB158 at para 6(g)). The untreated infection caused the child’s death two weeks after a doctor recommended taking the child to thehospital.

On appeal, Herauf JA, writing for the Court, concluded that the sentencing judge erred in principle by distinguishing acts ofcommission from acts of omission and, therefore, failed to properly assess the gravity of the offence and the accused’s moral culpability(see para 7).

Herauf JA increased the sentence of two years less one day of incarceration to one of three years and stated that he wouldhave increased the sentence even higher had the Crown sought a longer sentence. • In R v Lovett, 2017 ABQB 703, the accused was convicted after trial of criminal negligence for failing to seek medical carefor her seven-year-old son causing his death. The child died “an excruciating, unnecessary, death” (at para 9) as a result of infectionsthroughout his body that began as a curable ear infection approximately two weeks prior to his death.

The accused was sentenced tothree years’ incarceration. • In R v Da Silva (2005), (ON CA), 203 CCC (3d) 1 (Ont CA), the accused, a young single mother, pledguilty to manslaughter for the death of her two-year-old child. She abandoned the child for various periods of time over four days andthe child died of dehydration.

The Ontario Court of Appeal upheld the sentence of three years’ incarceration, but noted that the sentencewas at the very bottom of the range of what would constitute a fit sentence (see para 12). [22] In this case, the Crown argued that the accused had a high moral blameworthiness, having regard to the circumstancesof the offence and the aggravating factors. However, in light of the mitigating factors, the Crown recommended a sentence of 36 monthsless pre-sentence custody.

Its sentence recommendation was at the low end of the three to four-year range that it suggested wasappropriate on the facts of this case. [23] The accused acknowledged that deterrence and denunciation are the primary sentencing principles, but sought asuspended sentence with supervised probation.

Counsel for the accused suggested that the sentencing judge could impose conditions in aprobation order to address deterrence and denunciation and provided her with the following cases regarding the appropriate range ofsentence: • In R v Linden (2000), (ON CA), 147 CCC (3d) 299 (Ont CA), the accused appealed his five-yearsentence for criminal negligence causing death.

While this was a case involving the accused’s manner of driving, the Court concludedthat the offence of criminal negligence causing death can be committed in so many different ways that there is no set range of sentenceand that the offence is very much driven by individual factors, especially the blameworthiness of the conduct (see paras 2-3). • In R v Nanfo, 2008 ONCJ 313, the accused pled guilty to failing to provide the necessaries of life to her mother. Theaccused was caring for her aging mother, who suffered from dementia and other health issues and required full-time, constantsupervision and care.

While her mother died from a heart attack unrelated to the accused’s neglect, she was found in deplorableconditions. The accused was sentenced to a one-year conditional sentence order. • In R v Pitre, 2015 NBQB 44, the accused, who owned and operated a personal care home, pled guilty to criminalnegligence causing death for failing to seek emergency medical care for a long-time resident who was suffering from severe infectionscaused by bed sores.

Significant mitigating factors included: she had alerted a social services agency that the victim required a higherlevel of care than her facility could provide; she had previously attempted to obtain treatment for the victim by taking him to the doctor;and she lost her business when her licence was revoked.

In light of her health problems and lack of a prior criminal record, thesentencing judge imposed a sentence of eight months’ incarceration, followed by two years’ unsupervised probation. [24] The sentencing judge expressed concern about whether a suspended sentence could properly address the principles ofdeterrence and denunciation in this case. [25] In light of the cases relied on by both counsel, the sentencing judge asked them to address the issue of whether the casessubmitted involving the charge of failing to provide the necessaries of life were applicable comparators when determining theappropriate sentence.

The following exchange ensued:

THE COURT: Thank you. A number of the decisions that each of you have filed refer to the offence of failing to provide the [necessaries] of life. And while the constituent components are somewhat different, this is really akin to a situation of failing to provide the [necessaries] of life. So when I’m looking at the appropriate range, the maximum penalty for that offence is five years. MS. HALL: Five years, yes, when proceeding by indictment.

THE COURT: So it strikes me, and I’m saying this to you to get your feedback, it strikes me that that is a helpful comparative when I’m looking at, really, how should this offence be considered. It’s quite different than [criminal negligence] cause death, which has such a remarkably broad range of sentences largely because of the way in which the offence can be committed. Is that an appropriate way for me to be thinking about this? MS.

HALL: The Crown would say so. [ 26 ] Referring to the sentence imposed in Noseworthy , the Crown stated, “So five to eight in that, and that’s why the Crown is suggesting on this, these facts, without physical abuse, just the neglect, that . . . three to four . . . is appropriate.” [ 27 ] The sentencing judge reiterated her view that in the absence of physical abuse, the circumstances would be “akin to failing to provide [the necessaries] of life,” which has a maximum sentence of five years.

The Crown confirmed that in its opinion, the sentencing judge was correct and pointed out that in Grant , the accused was sentenced to four years and the maximum sentence for criminal negligence cause death is life imprisonment. [ 28 ] In reply, counsel for the accused stated that the facts in this case were “very analogous” and profoundly similar to cases involving the offence of failing to provide the necessaries of life.

Reasons for Sentence [ 29 ] In her reasons for sentence, the sentencing judge referred to the definition of criminal negligence in the Code (at para 21): Section 219(1) of [the Code ] provides that a person is criminally negligent where, in omitting to do something that is their legal duty to do, shows wanton or reckless disregard for the life or safety of another. By pleading guilty, [the accused] acknowledged that his failure to provide assistance to his mother meets the definition of the offence.

The maximum penalty for this offence is life imprisonment. [ 30 ] She went on to state (at para 22): Here, counsel agree that the facts of this situation also amount to the offence of failing to provide the [necessaries] of life to a person under one’s care. As a result, most of the cases each side relies on involve this offence.

The maximum penalty for this offence is five years’ imprisonment. [ 31 ] The sentencing judge reviewed the cases provided to her by counsel that she viewed to be relevant: Grant ; McDonald CA ; Da Silva ; Lovett ; Nanfo ; and Pitre , and concluded that deterrence and denunciation were the primary sentencing considerations for criminal negligence causing death, therefore, the suspended sentence sought by the accused was not an available sentencing option. [ 32 ] The sentencing judge referred to the aggravating factor that the accused was in a position of trust towards his mother.

She also referred to the “many” (at para 39) mitigating factors, including the accused’s guilty plea, remorse and lack of a prior record; that he acted out of “ignorance and a misplaced sense of loyalty or obedience” ( ibid ) and was overwhelmed; and that he was unable to make adult decisions due to his upbringing. [ 33 ] The sentencing judge concluded that rehabilitation of the accused had been accomplished as a result of “[t]he counselling he has undertaken, the improvement to his health and his overall living circumstances” (at para 40).

Finally, in concluding that the appropriate sentence was three months’ imprisonment, she stated (at paras 41-42): Nonetheless, the fact remains that [the accused’s] actions were a serious abdication of his responsibilities as his mother’s only caregiver. Regardless of his ignorance of the specific risks posed by her being immobile, the consequences of his failure to act could not be worse. The evidence shows that at least as of 11:30 a.m. on December 17 th he clearly understood that his mother needed immediate medical attention, yet he did not act.

It probably would not have made a difference to the result, but this is not the point. He still did not act.

General deterrence and denunciation require that I impose a sentence that has a punitive aspect. However, I do not consider his actions or his blameworthiness at a level close to the offenders in the cases the Crown relies on. In fact, I consider the situation closest to but even somewhat less serious than the Nanfo case. A conditional sentence is not available for this offence however, so some period of actual imprisonment is necessary.

Grounds of Appeal [ 34 ] The Crown’s grounds of appeal are that the sentencing judge overlooked the substantial aggravating factors; that she focussed exclusively on the accused’s personal circumstances when the focus ought to have been on the offence because deterrence and denunciation were the primary sentencing principles; and that, by relying on cases involving the offence of failing to provide the necessaries of life, the sentencing judge failed to acknowledge the higher blameworthiness for the offence of criminal negligence causing death.

Discussion Standard of Review [ 35 ] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, the decision of the sentencing judge is entitled to deference. An appellate court may only intervene when the sentencing judge commits an error which impacts on the sentence in a material way, or if the sentence is demonstrably unfit ( see R v Lacasse , 2015 SCC 64 at paras 43-44 ; R v Gladue , 2018 MBCA 89 at para 9 ; and R v Giesbrecht , 2019 MBCA 35 at para 169 ).

Aggravating Factors [ 36 ] The Crown asserts that the sentencing judge erred by referring to only one of the many aggravating factors in this case. It submits that the sentencing judge properly considered that the accused was in a position of trust in relation to his mother, but that she did not advert to other relevant aggravating factors, including the following: • Mrs. Siwicki was very vulnerable as a result of her illnesses, which included dementia; • Mrs. Siwicki relied entirely on the accused and was unable to obtain assistance on her own; • Mrs. Siwicki’s death was easily preventable; • Mrs.

Siwicki would have been in pain until nerves in the area of the wounds died; • the accused had a variety of options and opportunities to assist his mother that would have been easily realised, regardless of her wishes; • the accused actively hid his mother’s condition from others and made efforts to conceal the extent of the filth she was lying in at the time of her death, before calling 911; and • the offence was prolonged over a period of at least 26 days. [ 37 ] The law is clear that the sentencing judge’s reasons are to be reviewed in the context of the entire record, which includes the evidence and the parties’ submissions ( see R v REM , 2008 SCC 51 at paras 51-57 ; and R v Anderson , 2018 MBCA 42 at para 64 ). [ 38 ] While the sentencing judge mentioned only the one aggravating factor (the breach of trust) and did not acknowledge in her reasons that this fact is statutorily aggravating (see

section 718.2(a)(iii) of the Code ), my colleague concludes that the parties addressed the relevant aggravating factors in their submissions. I agree that the relevant factors were squarely before the sentencing judge. The Crown thoroughly reviewed the other aggravating factors during submissions and these factors were not disputed by the accused. [ 39 ] I would dismiss this ground of appeal. Deterrence and Denunciation [ 40 ] I also agree with my colleague that the sentencing judge was aware of the importance of deterrence and denunciation in sentencing the accused.

However, in my view, the sentencing judge erred when she focussed on the personal circumstances of the accused rather than the circumstances of the offence and this led her to significantly underemphasise these principles when determining a fit sentence (see R v McMillan (BW) , 2016 MBCA 12 at paras 12-14 ). As I will explain, in light of my conclusion that the sentencing judge also erred in her analysis regarding proportionality, in my view, these were errors in principle that materially affected the sentence.

Proportionality [ 41 ] The fundamental purpose of sentencing “is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society” (

section 718 of the Code ). This is achieved by imposing just sanctions that reflect one or more of the sentencing objectives. The sentencing objectives are denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 42 ]

Section 718.1 of the Code sets out the fundamental principle of sentencing and provides that, “ A sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender.” Other sentencing principles which must beconsidered in the analysis include parity, totality and restraint, and the manner in which the relevant aggravating or mitigatingcircumstances operate to increase or reduce a sentence (see

section 718.2 of the Code). [43] In R v Ipeelee, 2012 SCC 13, LeBel J commented on the importance of the principle of proportionality (at para 37): The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. [44] In R v Hamilton (2004), (ON CA), 186 CCC (3d) 129 (Ont CA), Doherty JA explained the elementsof the proportionality analysis: the gravity of the offence; and the degree of responsibility of the offender (at paras 90-91): The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed byParliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm tothe community occasioned by the offence. . . .

Some of the factors which increase the gravity of the offence are set out in s. 718.2(a). The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantive elements of theoffence ― especially the fault component ― and any specific aspects of the offender’s conduct or background that tend to increase ordecrease the offender’s personal responsibility for the crime. See also Ipeelee at para 37; and R v Harper (J), 2016 MBCA 64 at para 32. [45] The factors contained in

section 718.2 of the Code are also relevant to the analysis regarding the offender’s degree ofresponsibility (see R v Arcand, 2010 ABCA 363 at para 58). [46] When the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offenderpoints strongly in a very different direction, both sides of the proportionality inquiry must still be taken into account; however, one sideof the proportionality inquiry may figure more prominently in the ultimate sentence.

For example, when sentencing for crimes involvingserious personal injury to the victim, the gravity of the offence will be more evident in the sentence imposed (see Hamilton at paras 93-94; see also R v Arbuthnot, 2009 MBCA 106 at para 33). The greater the harm intended or the greater the degree of recklessness orwilful blindness, the greater the moral culpability. [47] The proportionality inquiry has both an individual and a comparative aspect, thereby ensuring consistency insentencing. A sentence should be proportionate when compared to similar offences committed in similar circumstances.

As explainedby Wagner J (as he then was) in Lacasse, “Individualization and parity of sentences must be reconciled for a sentence to beproportionate” (at para 53). [48] Wagner J also explained in Lacasse the importance of the principle of proportionality in appellate review of sentencing(at para 12): [P]roportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier thesentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also onthe moral blameworthiness of the offender.

Determining a proportionate sentence is a delicate task. . . . [B]oth sentences that are toolenient and sentences that are too harsh can undermine public confidence in the administration of justice. [49] The principle of proportionality is rooted in notions of fairness and justice and requires that a sentence reflect theseriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence (see R v Priest (1996), (ON CA), 110 CCC (3d) 289 at 297 (Ont CA)).

The Gravity of the Offence [50] The difference in the mode of procedure and the maximum sentences between criminal negligence causing death andfailing to provide the necessaries of life reflects Parliament’s view of the relative gravity of the offences—criminal negligence causingdeath is a more serious offence than failing to provide the necessaries of life. Criminal negligence causing death is an indictable offencepunishable by a maximum sentence of life imprisonment (see

section 220(

b) of the Code), whereas failing to provide the necessaries oflife is a hybrid offence punishable by a maximum sentence of five years upon indictable proceedings (see section 215(3)(

a) of the Code). [51] In R v JF, 2008 SCC 60, Fish J reviewed Parliament’s treatment of criminal negligence as a more serious offence than

failing to provide the necessaries of life. He also discussed the application of the rule against multiple convictions as an indicator thatthe courts have recognised the increased blameworthiness for criminal negligence (at para 13): That criminal negligence is a more serious offence, signifying more blameworthy conduct, has been recognized by the courts as well. This is reflected in cases where the accused has been found guilty of both offences: Applying the rule against multiple convictions inaccordance with Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729, and R. v.

Provo, (SCC), [1989] 2S.C.R. 3, courts have systematically recorded a conviction of criminal negligence, as the more serious of the two offences, and entered astay on the charge of failure to provide the necessaries of life (see, for example, R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.)). . . . Iam not aware of a single case in which a conviction has been recorded for failing to provide the necessaries of life and a stay entered forcriminal negligence pursuant to the rule against multiple convictions.

The Degree of Responsibility of the Offender [52] Criminal negligence causing death requires proof that the accused was under a legal duty to do something; that,objectively, the accused failed to fulfill this duty; and that, in failing to fulfill this duty, the accused showed, from an objectivestandpoint, a wanton or reckless disregard for the lives or safety of other persons (the actus reus of the offence). The mens rea or faultrequirement of the offence flows from the wanton or reckless nature of the conduct.

Wanton or reckless conduct is behaviour thatconstitutes a marked and substantial departure from the standard of care that a reasonable person would observe in the samecircumstances as the accused (see JF at para 68; and R v Tayfel (M), 2009 MBCA 124 at paras 53, 80-85). [53] The offences of criminal negligence causing death and failing to provide the necessaries of life do not require proof ofintention or actual foresight of death but, rather, proof that the accused ought to have foreseen death as a consequence of his or herconduct. [54] Failing to provide the necessaries of life requires proof of conduct that represents a marked departure from the conductof a reasonably prudent person in circumstances where it was objectively foreseeable that the failure to provide the necessaries of lifewould lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the person.

Criminal negligence causingdeath requires proof that the conduct represented a marked and substantial departure from the conduct of a reasonably prudent person incircumstances in which the accused either recognised and ran an obvious and serious risk or, alternatively, gave no thought to that risk. Therefore, criminal negligence causing death involves a higher degree of fault than failing to provide the necessaries of life (see JF atparas 7-11).

Analysis [55] The Crown argues that the sentencing judge erred by relying on cases involving the offence of failing to provide thenecessaries of life, rather than criminal negligence causing death and, as a result, attributed a lower moral blameworthiness to theaccused. [56] In her reasons, the sentencing judge acknowledged the difference in maximum punishments (see paras 21-22), however,she said little more about the difference between the offences. [57] The sentencing judge referred to the accused’s “wanton or reckless disregard for the life or safety of” (at para 21) hismother and the “serious abdication of his responsibilities as his mother’s only caregiver” (at para 41), and stated that “the consequencesof his failure to act could not be worse” (ibid).

However, during submissions, she appeared to be of the view that the appropriate rangeof sentence in this case should be determined based on the maximum sentence for failing to provide the necessaries of life when shestated: [T]his is really akin to a situation of failing to provide the [necessaries] of life. So when I’m looking at the appropriate range, themaximum penalty for that offence is five years. [I]t strikes me that that is a helpful comparative when I’m looking at, really, how should this offence be considered.

It’s quite differentthan [criminal negligence] cause death. [58] Moreover, neither she nor counsel made any comment about the accused’s conduct constituting a marked andsubstantial departure from the conduct of a reasonable person in the same circumstances. [59] While the words “marked and substantial” departure are adjectives used to interpret “wanton or reckless disregard”(section 219(1) of the Code), in my view, the sentencing judge’s failure to advert to the different standards of fault applicable in cases ofcriminal negligence causing death and failing to provide the necessaries of life demonstrates either a failure to appreciate the increasedmoral culpability applicable in this case, or a failure to give effect to that difference (see Fontaine c R, 2017 QCCA 1730 at para 27). [60] During the sentencing hearing and in her reasons, the sentencing judge appeared to focus on the accused’s actionswithout assessing his level of fault.

In my view, this also contributed to her failure to recognise the higher moral culpability involved inthe offence of criminal negligence causing death. While there is no requirement to utter the words “marked and substantial departure”,

her reasons must nonetheless demonstrate the application of the appropriate standard. [ 61 ] Finally, the sentencing judge’s reliance on Nanfo was, in my view, problematic. She stated that the present case was “closest to but even somewhat less serious than the Nanfo case” (at para 42 ). In that case, the evidence in support of the charge of failing to provide the necessaries of life established that the accused’s neglect of the victim endangered her life and health, but did not cause or contribute to her death.

Nanfo involved an offence with a lower maximum penalty (five years’ imprisonment as opposed to life) and a lower standard of fault (a marked departure as opposed to a marked and substantial departure). I agree with the Crown that McDonald CA is a more helpful precedent as it involved a similar charge and similar conduct, albeit regarding a vulnerable child victim, rather than a vulnerable elderly victim. [ 62 ] I agree with my colleague that it is not an error in law for a sentencing judge to consider cases involving less serious offences for parity purposes.

However, in my view, the sentencing judge lost sight of the offence before her and failed to appreciate or give effect to the greater degree of responsibility of the accused, such that the sentence imposed is not comparable with sentences imposed for similar offences committed in similar circumstances ( see Lacasse at para 53 ).

Conclusion [ 63 ] Ultimately, in my opinion, the sentencing judge erred by focussing on the personal circumstances of the accused when deterrence and denunciation were the primary sentencing principles and by imposing a sentence that is not proportionate to the gravity of the offence and the degree of responsibility of the accused, particularly when considered comparatively. These errors affected the sentence in more than an incidental way and, in my view, resulted in a sentence that is demonstrably unfit.

What is the Appropriate Sentence? [ 64 ] I disagree with my colleague’s view that the offence did not involve the high moral blameworthiness alleged by the Crown “due to the nature of the relationship that existed between mother and son” (at para 86 herein).

With respect, in my view, this conclusion overlooks factors relevant to the analysis, including the prolonged nature of the conduct and the accused’s post-offence conduct: • At approximately 11:30 a.m. that morning, an employee of the furnace company spoke to the accused by telephone about attending the home to obtain a signature for a furnace recently installed by the company. The accused told her that he would call her back later because his mother was unwell and he might have to call 911 or take her to the hospital.

The accused did not call her back and when she attended the home at about 5:30 p.m., he told her his mother had died and did not respond when asked whether he had called 911. • At approximately 6:30 p.m., the accused told his nephew that he discovered his mother had fallen out of bed that afternoon and when he tried to get her back into bed, he realised she had passed away. When he spoke to his nephew 30 to 45 minutes later, he said he had called 911 and firefighters were present in the home.

However, he did not actually call 911 until shortly after 9:00 p.m. • When he called 911, the accused said his mother had fallen off the bed a while ago, she had lain on her side for days and she had “horrible sores from feces”. • When the police spoke to the accused in his home the night of his mother’s death, he said she had fallen out of bed just two weeks prior; his mother was still alive at noon; and it was almost five hours later when he discovered that she had died.

He also said she was covered in feces so he tried to clean her up before anyone saw her. • The following day during a police interview, the accused initially claimed that his mother had lain on the floor for days, but later admitted that she may have been on the floor for three weeks or longer.

At first, he said that he had cleaned her a couple of days before she died, but later did not remember the last time he had cleaned her. [ 65 ] These facts shed light on the accused’s degree of criminality and character by demonstrating that he was dishonest about the amount of time his mother had lain on the floor and that he knew that the longer she was on the floor, the worse his actions would be perceived by others ( see Anderson at paras 50-51 ).

These facts also demonstrate efforts by the accused to conceal the extent of his neglect. [ 66 ] Furthermore, the accused had an extensive network of friends, as well as his nephew, who offered him support after his mother’s death, yet he did not ask for help from anyone while she was still alive. [ 67 ] As I have explained, Parliament views criminal negligence causing death to be a serious offence. This offence involves behaviour that is objectively dangerous to the lives and safety of others and a marked and substantial departure from the conduct of a reasonable person in the same circumstances.

It does not involve causing death unintentionally. [ 68 ] The accused’s personal circumstances, including the nature of his relationship with his mother, are unquestionably sympathetic and affect his moral culpability. However, his conduct was prolonged over at least 26 days and his mother’s death was directly attributable to his failure to act and easily preventable.

While the personal circumstances of the accused mitigate the sentence in a meaningful way, general deterrence and denunciation are the primary sentencing principles and, therefore, the gravity of the offence must be reflected in the sentence imposed. In my view, a sentence of two years’ incarceration appropriately addresses all of the circumstances, including the mitigating and aggravating factors; the accused’s sympathetic circumstances; the relevant sentencing objectives and principles; and the sentencing judge’s inclination to show leniency.

Reincarceration [ 69 ] At the appeal hearing, the accused argued that, if the Crown’s appeal was granted, the execution of any sentence of imprisonment should be permanently stayed ( see R v JED , 2018 MBCA 123 at para 143 ).

[ 70 ] The factors to be considered when determining whether reincarceration is in the interests of justice include: the seriousness of the offence; the elapsed time since the offender was released from custody and the date when the appeal is decided; delay; the length of sentence remaining to be served; the potential for injustice if the new sentence is served; the length of time since the offence occurred or the original sentence was imposed; the impact of reincarceration on the rehabilitation of the offender; and systemic factors ( see McMillan at para 36 ; and JED at paras 112-15, 125, 143-44 ).

The offender bears the persuasive burden of demonstrating why an otherwise fit sentence should not be enforced. [ 71 ] In my view, the seriousness of the offence, the length of sentence remaining to be served and the importance of denunciation require reincarceration ( see JED at paras 145-50 ). There was no evidence provided about the effect of reincarceration on the accused’s rehabilitation, however, in light of the changes he has made, any impact should be minimal.

Conclusion [ 72 ] In the result, I would grant leave to appeal, allow the appeal, impose a sentence of two years’ incarceration and credit the accused for 30 days of pre-sentence custody (20 days credited at a rate of 1.5:1). I would also credit him for the two months he served after being sentenced, leaving a total sentence going forward of 21 months’ incarceration. I would not stay the sentence.

JA I agree: JA Monnin JA ( dissenting ): [ 73 ] I agree with my colleague that the sentencing judge did not err by considering cases involving less serious offences for parity purposes. [ 74 ] However, for the reasons that I set out, I do not agree that the sentencing judge erred by focussing on the personal circumstances of the accused when deterrence and denunciation were the primary sentencing principles to be followed, and that she imposed a sentence that was not proportionate to the gravity of the offence and the degree of responsibility of the accused. [ 75 ] I disagree that the sentence imposed was demonstrably unfit. [ 76 ] The standard of review applicable to a sentence appeal is well established: considerable deference is to be granted to sentencing judges.

Appellate intervention is only appropriate where the sentence imposed was demonstrably unfit or where it is based on an error in principle, e.g., where the sentencing judge failed to consider a relevant factor, took into account an irrelevant factor, failed to give sufficient weight to a relevant factor or overemphasised an appropriate factor (see Lacasse ). In imposing a sentence of three months’ incarceration, the sentencing judge stated (at paras 37-39): There is no question that the primary sentencing considerations for this offence are denunciation and deterrence.

Vulnerable members of our society, be they the children, the elderly or the disabled, are owed the greatest duty of care by those who look after them. The defence argued that by suspending sentence and imposing a probation order with a strict curfew there will be punitive consequences which will meet the need for general deterrence. I cannot accede to this request, as the law is well settled that this simply is not a course of action available: a probation order, at law, can only be imposed for rehabilitative purposes. See R. v. Lacasse , 2015 SCC 64 ; R. v. Singh , 2016 MBCA 38 ; R. v. Dunn , 2011 NBCA 19 .

The aggravating factor in this instance is, of course, that [the accused] was in a position of trust towards his mother. The mitigating factors are many: he is a first time offender; he pled guilty; and he demonstrates real remorse. I am satisfied he was not acting out of cruelty, self-interest or lack of concern, but out of ignorance and a misplaced sense of loyalty or obedience. No doubt, he was overwhelmed by his situation. As one of the authors of the many letters observed, [the accused] never learned to be an adult and when it came time for him to make adult decisions, he was unable to do so.

I tend to agree. [ 77 ] She concluded (at paras 42-43):

General deterrence and denunciation require that I impose a sentence that has a punitive aspect. However, I do not consider his actions or his blameworthiness at a level close to the offenders in the cases the Crown relies on. In fact, I consider the situation closest to but even somewhat less serious than the Nanfo case. A conditional sentence is not available for this offence however, so some period of actual imprisonment is necessary. Taking all of the circumstances into consideration, then, I am of the view that a fair and just sentence in all the circumstances is three months’ imprisonment.

He will be credited time in custody of one month. [ 78 ] The sentencing judge had before her an unusual, unique and troubling set of circumstances. In her reasons, she set out the facts as follows (at paras 3-6): On December 17, 2014 at approximately 9:00 p.m., [the accused] called 911 to say that his mother, Elizabeth, had died in their home. First responders attended and discovered Mrs. Siwicki’s body on the floor in the hallway of the house. She was on a plastic sheet with a blanket over her.

She was covered in feces and urine, her hair was matted and dirty and she had several gaping and infected bedsores on her leg and hip. The house was described as being in an appalling state: cluttered, dirty and smelling of urine and feces. The carpet beside the bed in the bedroom was soaked with both. [The accused] told police that he was his mother’s sole caregiver, and they lived in the house alone together. She had fallen out of bed several weeks earlier and he was unable to lift her to get her back into bed.

He said he did not call an ambulance because she had told him many times she did not want to go to [the] hospital. He said he left her there and in the intervening period he gave her water and Boost every day. After she died, and he pulled the blanket off to move her, he was shocked at what he saw – he had no idea of her condition. He thought he should clean her up, as he felt somehow that she should not be seen this way. He moved her from the bedroom to the hall, and washed her. He threw away the soiled blankets. An autopsy revealed that Mrs.

Siwicki died from sepsis, a complication from the bedsores, which resulted from prolonged immobility while lying on her side. The pathologist was of the opinion that they would have taken approximately a week to form. Some were healing. They could have been successfully treated. They would have caused her significant pain. Mrs. Siwicki’s brain showed evidence of dementia, the extent of which could not be determined.

Her medical records reveal this condition was first identified in 2012 when a geriatric consultant did an in-home assessment. [The accused] was present and arrangements were made for him to bring his mother to the hospital for a follow-up evaluation, but he did not. That was the last time Mrs. Siwicki saw a healthcare practitioner. Her last prescription for a three-month supply of thyroid and blood pressure medication was filled in March 2014. [ 79 ] It is not possible, however, in dealing with this appeal, to consider only these facts.

The sentencing judge had before her a history of the relationship between the accused and his mother which she related in her reasons. The quote is lengthy, but, in my view, necessary to understand the issues facing the sentencing judge. She wrote (at paras 9-18): [The accused] is now 66 years old. He completed grade 12 and some post-secondary education. Although he has held some other jobs, for the last 20 years or so he has worked as a musician, playing guitar on the weekends. He has never been financially independent and lived with his parents his entire life.

A pre-sentence report, psychiatric assessment and 27 letters of support were filed at the sentencing hearing. The psychiatrist, Dr. Jeffrey Waldman, found [the accused] to have no evidence of mental illness or mood or anxiety disorders, and not at risk of reoffending. [The accused] expressed self-doubts and guilt to Dr. Waldman. He also demonstrated dependent traits and a history of hoarding. The pre- sentence report suggests that he appears to rationalize his behaviour to some extent, but also assessed him at [a] very low risk to reoffend.

The manager of the John Howard Society, who supervised [the accused] while he was on bail, spoke about him in very positive terms and noted significant improvement in his emotional functioning while involved in their program. A counsellor he saw while on bail, described [the accused] as quiet, non-confrontational and very non-assertive. He met with [the accused] weekly for some months. The focus of their meetings was to help [the accused] come to terms with the loss of his mother and the offence.

He described [the accused] as being overwhelmed with the situation but also acknowledging his responsibility was to help his mother rather than follow her wishes.

The letters of support are from people who have known [the accused] most of his life or at least for many years, many through his music. Collectively and consistently, they paint a picture of a passive, gentle individual, who grew up in a very tight-knit family, dependent and somewhat controlled by his parents but also very loving and caring. His father died in 1996 and his sister died from breast cancer in 2011. Mrs. Siwicki’s sister, to whom she was very close, also died in recent years.

All of this appears to have deepened the connection between the two of them and perhaps their dependence on each other, but also left them isolated. Many of the letters offered firsthand observations of [the accused’s] commitment to his mother over the years. He would never stay to socialize with the other musicians after work; he would call his mom and let her know he was coming home; he would take dinner to her; he referenced her frequently in conversations, always in a most positive way. Members of his extended family and those connected to his family observed that he and his mother did everything together.

He would drive her and his aunt to bingo and the casino several times a week and take them shopping, or other destinations. He played the role of a devoted son to everyone who knew him. For the few who knew Mrs. Siwicki, they described her as sweet but very stubborn and strong-willed, observed her becoming forgetful in recent years, commented on the disarray in the house and described the two of them as hoarders. After her daughter and then her sister died, Mrs. Siwicki did not seem to go out any more. How this relationship of devotion could end with Mrs.

Siwicki dying in such profane circumstances is hard to understand. [The accused] maintains that he had made efforts to get help for his mother as her health declined, but she was adamant that she did not want medical intervention, nor to go to [the] hospital. He explained that he first noticed signs of dementia before his sister died in 2011 – they would speak by phone, but within a short time Mrs. Siwicki would forget the call had happened. He arranged for the home assessment through Seven Oaks General Hospital. When the nurse told Mrs.

Siwicki that she needed to go to [the] hospital every Thursday for programming, she initially agreed, but when it came time to go she refused, as she did every week thereafter. He spoke to someone at the hospital and explained his mother would not go. He says the only response he got was that “sometimes this happens”. He enlisted his brother-in-law to try to persuade his mother that she needed help, but she refused. On one occasion, she went outside scantily dressed in the cold. When he could not get her to come back to the house, he called 911. An ambulance came but she refused to go.

The paramedics left after requiring her to sign a release acknowledging she refused their help. She even left an appointment at her doctor’s office on one occasion as she became agitated after sitting there for a few minutes. Each of these efforts resulted in Mrs. Siwicki being angry or upset with him, suggesting he was trying to make her look like a fool, and telling him if she went to the hospital she would never come out. He also raised getting homecare, but she refused to allow it. Two of his friends offered to come to the house to help out, but when he suggested this to her, she refused this as well.

He put a safety bar and a chair in the shower to help her shower. When she could no longer wash herself, he washed her himself. The defence points out that falling out of bed in itself did not result in Mrs. Siwicki requiring medical intervention, as she was not at all injured. And she was not simply left on the floor. Once [the accused] could not lift her back into bed, he brought her a pillow and blankets to make her comfortable. He brought her new blankets when they became soiled. He gave her Boost and water daily. It was not suggested that she showed signs of malnourishment or dehydration.

Further, says the defence, while the consequences were tragic, Mrs. Siwicki died of complications of immobility. Bedsores are dangerous. Healthcare facilities pay close attention to this risk and take care to prevent them. For the average person on the street without any prior experience, such as [the accused], this risk would not be obvious. He himself also had several health issues that he was not attending to, including frequent chest pains that since have necessitated a quadruple by-pass, untreated diabetes and problems with his ulnar nerve, which also required surgery.

This, says the defence, simply makes the point that [the accused] was also neglectful of himself. [ 80 ] I consider the Crown’s grounds of appeal, dealing with the issues of deterrence and denunciation and overlooking aggravating factors, to be issues dealing with the fitness of the sentence imposed and will consider them as such. [ 81 ] The Crown argues that because of the nature and circumstances of the offence, denunciation and general deterrence should have been the paramount sentencing objectives and that the sentencing judge should have focussed on the accused’s conduct as opposed to circumstances particular to the accused himself, which it argues, the sentencing judge failed to do. [ 82 ] The Crown also argues that the sentencing judge only considered the accused’s position of trust, vis- à -vis his mother, as an aggravating factor and failed to consider that there were many other aggravating factors, thereby rendering the sentence imposed as unfit. [ 83 ] With respect to these two grounds of appeal, the Crown also refers back to what it alleges is the high level of blameworthiness on the part of the accused which it argued with respect to its first ground of appeal, namely, that the sentencing judge erred in relying on cases involving failing to provide the necessaries of life rather than criminal negligence causing death.

[ 84 ] I consider the arguments dealing with the fitness of the sentence, in the context of the unusual and unique set of facts that make it difficult to categorise the offending behaviour, within the usual compartments of moral blameworthiness. [ 85 ] In most cases, a sentencing judge is guided in her or his determination of a fit sentence by sentencing ranges that have been established and confirmed by appellate courts over a period of time. That, however, is not the case when an accused is being sentenced on a charge of criminal negligence causing death.

In such a case, the circumstances of the offence and of the offender dictate what will be an appropriate sentence, and that can be anywhere from no incarceration to life in prison. [ 86 ] In this case, the sentencing judge considered not only the result of the accused’s negligence, but also the why and the how it came about. That is, the nature of the particular relationship that existed between the accused and his mother.

It is clear that the accused was misguided in the handling of the situation before him but, in my view, the sentencing judge accepted the fact that although the accused’s response was not an appropriate one, it was not one of the high blameworthiness as the Crown alleges, due to the nature of the relationship that existed between mother and son. [ 87 ] Although the sentencing judge in her reasons refers to only one specific aggravating factor, there is no question that by virtue of the sentencing submissions of both the Crown and the accused’s counsel, she was made aware of all of the aggravating factors that she could consider in imposing a fit sentence. [ 88 ] It is also clear by her reasons that the sentencing judge was aware of the importance of deterrence and denunciation in considering a fit sentence to impose.

That is the basis on which she specifically declined to impose a suspended sentence. [ 89 ] All of the above lead me to the conclusion that the sentencing judge did not commit an error in law, nor did she impose a sentence that was unfit because she failed to properly consider applicable sentencing principles. [ 90 ] I am satisfied that when the history of the relationship between the accused and his mother is given due consideration, the sentence imposed was fit and proper. [ 91 ] Accordingly, I would dismiss the appeal. JA