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SENTENCING - Failure to provide necessaries of life - Maximum or minimum sentence available

Friday, October 09, 2020 @ 6:16 AM  

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Appeal by the Crown from sentence of one day’s imprisonment and three years’ probation for failure to provide the necessaries of life. The respondent’s daughter suffered from cerebral palsy and was totally dependent on the respondent and others to care for her. A few days before the child died, the respondent told a friend that the child was sick and was not eating or drinking. The friend told the respondent to take her to the hospital. The respondent failed to do so. The child died at age 9 from complications of malnutrition and dehydration in the context of cerebral palsy. The respondent often delegated care of the child to the siblings, failed to take the child to her family doctor for 18 months, and never arranged for any visit to a pediatrician despite medical advice from her family doctor to do so. The child had lost about one-third of her body weight over a period of five and one-half weeks. The respondent’s childhood was fraught with emotional abuse from her mother and an absent father. She had a lengthy history of drug abuse.

HELD: Appeal allowed. The sentence was increased to three years’ imprisonment less 17 months for pre-sentence custody served. The sentence imposed was demonstrably unfit. The sentence imposed failed to adequately address denunciation and deterrence. Under s. 718.01 of the Criminal Code it was no longer open to a sentencing judge to elevate other sentencing objectives to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence. The sentencing judge also failed to consider the impact of Parliament’s decision to increase the maximum sentence for failure to provide the necessaries of life from two to five years. The sentencing judge erred in considering the failures of the Children’s Aid Society as a factor in determining a fit sentence for the respondent. The respondent had a legal duty to provide the necessaries of life to her child. She failed to discharge that duty. That the society also failed to live up to its mandate was beside the point for the purposes of the respondent's criminal liability. The sentence imposed did not give effect to the fundamental sentencing principle of proportionality. The sentencing judge did not consider the increase in the maximum punishment of the offence of failure to provide the necessaries of life as an indication that higher punishments were required for this offence and appeared to have diminished the subjective gravity of the offence by characterizing it as a momentary lapse under a confluence of unfortunate life events. The sentencing judge diluted the degree of responsibility of the respondent by her reference to the inadequacies of the society in discharging its supervisory role. Sentence: 19 months’ imprisonment; three years’ probation.

R. v. Lis, [2020] O.J. No. 3733, Ontario Court of Appeal, D. Watt, A.L. Harvison Young and S.A. Coroza JJ.A., September 3, 2020. Digest No. TLD-October52020009