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SENTENCING - Criminal negligence - Offences involving breach of trust

Monday, November 25, 2019 @ 10:37 AM  


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Appeal by the Crown from a sentence of three months imprisonment for criminal negligence causing death. The respondent pleaded guilty. The respondent’s 89-year-old 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. While the respondent, 62, who lived with his mother, provided her with water and nutritional drinks 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 assistance for her. She died from complications due to advanced bedsores and prolonged immobility from lying on her side. The respondent was described as immature, indecisive and passive, never going against his mother’s wishes or becoming independent. The sentencing judge held that, for the purposes of sentencing, in the absence of physical abuse, the circumstances would be akin to failing to provide the necessaries of life.

HELD: Appeal allowed. A sentence of two years imprisonment less 30 days for pre-sentence custody was substituted. The seriousness of the offence, the length of sentence remaining to be served and the importance of denunciation required reincarceration. While the sentencing judge was aware of the importance of deterrence and denunciation in sentencing the respondent, the judge erred when she focused on the personal circumstances of the respondent rather than the circumstances of the offence and this led her to significantly underemphasize these principles when determining a fit sentence. The sentencing judge also erred in her analysis regarding proportionality. The sentencing judge’s failure to advert to the different standards of fault applicable in cases of criminal negligence causing death and failing to provide the necessaries of life demonstrated either a failure to appreciate the increased moral culpability applicable in this case or a failure to give effect to that difference. The sentencing judge appeared to focus on the respondent’s actions without assessing his level of fault. The respondent’s personal circumstances, including the nature of his relationship with his mother, were unquestionably sympathetic and affected 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. Sentence: One year and 11 months imprisonment.

R. v. Siwicki, [2019] M.J. No. 272, Manitoba Court of Appeal, M.A. Monnin, H.C. Beard and J. leMaistre JJ.A., October 17, 2019. Digest No. TLD-November252019002