COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Doherty and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Elva Bottineau and Norman Kidman
Appellants
J. Stribopoulos and S. Ozkin, for the appellant, Bottineau
Richard Litkowski and Emily Morton, for the appellant, Kidman
Rosella Cornaviera and Andreea Baiasu, for the respondent
Heard: March 2 and 3, 2011
On appeal from the judgment of Justice J.D. Watt of the Superior Court of Justice dated April 7, 2006, convicting the appellants of second degree murder and forcible confinement and from the sentences imposed on June 9, 2006.
1The circumstances underlying this appeal are abhorrent beyond description. Cruelly, and without remorse, the appellants starved their five-year old grandson, J.B.2, to death and gravely mistreated his older sister, J.B.1. As the trial judge correctly observed, “this case involves the relentless pursuit of a course of unyielding inhumanity and degradation.”
I
SUMMARY OF THE TRIAL PROCEEDINGS
2The appellants are common law spouses. They were charged with the first degree murder of their five-year-old grandson, J.B.2, and the forcible confinement of their six-year-old granddaughter, J.B.1. The appellants were the guardians of J.B.2 and J.B.1.
3At trial, the Crown argued that the appellants had failed to provide the necessaries of life to J.B.2 and that their failure led to J.B.2’s death. The Crown contended that the appellants had the mens rea for murder and that the murder was first degree murder either because it was planned and deliberate or because it occurred in the course of a forcible confinement. On the charge of forcibly confining J.B.1, the Crown argued that she, along with J.B.2, were confined for many hours every day in a barren, cold and filthy room.
4The appellant, Elva Bottineau (“Bottineau”), advanced a two-pronged defence on the murder charge. First, she argued that her significantly diminished intellectual capabilities rendered her incapable of appreciating that the neglect and abuse of J.B.2 could cause him bodily harm. On this submission, Bottineau was not guilty of anything. Alternatively, counsel for Bottineau argued that the diminished intellectual capability should leave the trial judge with a reasonable doubt on the question of whether Bottineau had the mens rea for murder. On this argument, Bottineau was guilty of manslaughter.
5At trial, the appellant, Norman Kidman (“Kidman”), acknowledged that he was guilty of manslaughter for failing to provide the necessaries of life to J.B.2. He submitted, however, that he had little to do with J.B.2 on a day-to-day basis and that it was his wife, Bottineau, who was primarily responsible for the abuse and neglect that led to J.B.2’s death. Kidman argued that his non-involvement should leave the trial judge with a doubt as to whether Kidman foresaw J.B.2’s death as a probable consequence of his mistreatment.
6On the forcible confinement charge, both appellants argued that any confinement was an exercise of their legitimate parental authority and, therefore, a lawful confinement. In addition, Kidman argued that he was unaware of the nature and extent of J.B.1’s confinement and that Bottineau was primarily responsible for J.B.1’s living conditions.
7In acquitting the appellants of first degree murder but convicting them of second degree murder, the trial judge made the following findings:
the appellants, as J.B.2’s guardians, failed over a prolonged period of time to provide J.B.2 with the necessaries of life;
the appellants’ abuse and neglect of J.B.2 over many months and years caused his death; and
during the course of conduct that eventually resulted in J.B.2’s death, the appellants intended to cause him bodily harm and knew that bodily harm was likely to cause his death.
8On these findings, the appellants were guilty of second degree murder under s. 229(a)(ii).
9On the forcible confinement charge, the trial judge found that both appellants had confined J.B.1 and J.B.2 in a barren, unheated, filthy room for upwards of 12 hours a day. He rejected the contention that they did so in the exercise of their lawful parental authority.
10The trial judge imposed a life sentence on Bottineau and directed that she not be eligible for parole for 22 years. He imposed a concurrent eight-year sentence on the forcible confinement charge. The trial judge sentenced Kidman to life imprisonment without eligibility for parole for 20 years. He also imposed a concurrent eight-year sentence on the forcible confinement charge.
11The appellants appeal conviction and sentence. At the conclusion of oral argument, we dismissed the appeals. These are our reasons.
II
THE FACTS
12The evidence is dealt with at length by the trial judge in his reasons for judgment. We will highlight certain facts when considering the issues raised by the appellants. For present purposes, an overview of the facts will suffice.
13J.B.2 was born in January 1997. He had three siblings, M. (born June […], 1994), J.B.1 (born December […], 1995), and J. (born July […], 1998). Their parents were Yvonne Kidman, the appellants’ daughter, and R.B.. All four children were removed from their parents’ care by the Catholic Children’s Aid Society. Bottineau was given custody of all four children pursuant to court orders made at different times. Although Kidman was not given custody under those orders, it is acknowledged that he had a legal duty to provide the necessaries to J.B.2 and J.B.1.
14J.B.2 was fifteen months old when the appellants took custody of him in March 1998. He was a healthy baby of normal size and weight. The appellants took custody of J.B.1 at the same time. She was also a normal, healthy baby.
15The appellants and their four grandchildren lived in a small two-storey house with the appellants’ two adult daughters, the common law husband of one of those daughters, and their two children. In addition to the 11 family members, James Mills, the boyfriend of the other adult daughter, lived in the home for about three months prior to J.B.2’s death. A kitchen, living room and computer room were located on the main floor. There were three bedrooms and a bathroom on the upper floor. J.B.2 and J.B.1 occupied the room beside the bedroom used by the appellants and the youngest child, J..
16Bottineau did not work outside of the home. She was in charge of the household and set the rules for those living there. Apart from the room occupied by J.B.2 and J.B.1, Bottineau maintained a clean and organized household. Kidman worked outside of the home and was absent throughout the day, five days a week. When Kidman was in the home, he spent most of his time watching television. Bottineau was clearly the dominant figure within the home.
17The four grandchildren were treated very differently by the appellants. M. and J. were well cared for, attended school, played with friends in the house, and lived what appeared to be a relatively normal life given the limited financial resources available to the appellants. The appellant, Bottineau, was attentive to the medical needs of M. and J. and involved in their school activities. Kidman was very fond of J..
18J.B.2 and J.B.1 were treated like unloved and unwanted animals. They were confined for upwards of 12 hours a day in a locked, barren and unheated room that was more like a dungeon than a bedroom. The most basic needs of J.B.2 and J.B.1 were ignored and they were left in utter squalor in their room. That room reeked of urine and feces. Neither child was toilet trained. Their isolation within the home is perhaps best demonstrated by the evidence of a neighbour, who was unaware that J.B.2 and J.B.1 even existed, although he visited the home three or four times a week in the year before J.B.2’s death.
19J.B.2 and J.B.1 were allowed out of their room each morning around 10:00 or 11:00 a.m. They were placed on a mat in the kitchen and required to eat the meagre food given to them from a bowl placed on the floor. J.B.2 was never allowed to go to school. He was made to remain on the mat while out of his room. J.B.1 attended school part-time. Her teachers noticed that she was filthy, her clothes were dirty and her hair was lice infested. She was always hungry.
20J.B.2 died on or about November 30, 2002, two months short of his sixth birthday. He was an abused and neglected little boy. Death was caused by terminal septicaemia brought on as a complication of prolonged starvation. J.B.2 weighed 9.68 kilograms when he died, less than half the average weight of a boy his age, and less than he weighed when he was fifteen months old and the appellants assumed responsibility for his care.
21J.B.1 was also badly mistreated and neglected. In April 1998, about the time the appellants took responsibility for her care, J.B.1 appeared normal and almost indistinguishable from her older sister, M.. By November 2002 when her brother died, J.B.1 exhibited many indicia of mistreatment. She showed obvious signs of malnutrition. Her body was covered with a rash, open sores and skin eruptions, especially in the genital area. J.B.1 walked hunched over and her badly fitting clothing reeked of urine and feces.
22On the morning of November 30, 2002, Bottineau called 911 to report that J.B.2 had stopped breathing. Emergency medical personnel, firemen and police officers arrived at the home shortly afterward. They found J.B.2 lying on the kitchen counter “like a bag of groceries”. He was taken to the hospital where he was pronounced dead. J.B.2 was in all likelihood dead before the 911 call was made. The post-mortem examination of his body revealed the following:
Several external indicia of violence, including a large bruise between J.B.2’s eyes and an extensive rash on J.B.2’s stomach and legs;
Ulceration of J.B.2’s scrotum;
Extensive bruising on the under surface of J.B.2’s scalp indicative of repeated blunt force trauma that was not consistent with normal childhood injuries;
Indicia of pneumonia in J.B.2’s lungs consistent with pneumonia caused by the aspiration of bacteria-infested fecal material.
A stunted thymus indicative of severe illness and stress over several months;
Acute septicaemia caused by bacteria in the bloodstream leading to septic shock;
Extreme stunting, wasting and a pronounced caloric deficiency; and
Caked-on collections of bacteria over most of J.B.2’s skin. The bacterial growth was described as “extraordinary”.
23Dr. Wilson, the senior pathologist at the Hospital for Sick Children, opined that J.B.2 died of acute bacterial bronchial pneumonia occurring as a complication of prolonged starvation. Dr. Wilson testified that the malnutrition occurred over a prolonged period beginning when J.B.2 was about 18 months old. In his view, it was reasonable to conclude that the pneumonia was directly connected to the caked collection of bacteria covering J.B.2’s skin. That bacteria would have entered the respiratory system, eventually leading to the bacterial bronchial pneumonia. Dr. Wilson had never seen the degree of bacterial growth on the skin of a child that he observed on J.B.2.
24Dr. Wilson testified that J.B.2’s chronic malnutrition significantly lowered his resistance to disease, including bacterial pneumonia. J.B.2’s state of hygiene also contributed to the infection and its rapid development into septicaemia. Dr. Wilson believed that the pneumonia would have taken about two days to develop and that death would have followed within hours of the septic shock.
25Dr. Stanley Zlotkin, a professor of paediatrics and nutritional sciences at the University of Toronto, also testified for the Crown. He described J.B.2 as stunted and wasted. The source of the stunting and wasting was nutritional and reflected severe, longstanding malnutrition. This was a case of gradual, long-term starvation.
26Dr. Zlotkin also testified about J.B.2’s appearance in the days and months before he died. The trial judge summarized that evidence at para. 181 of his reasons:
It was the evidence of Dr. Zlotkin that J.B.2 would not have been able to interact with his environment in any meaningful way for weeks, even months before he died. As his death approached, J.B.2 would have been unable to walk or climb stairs. In the preceding months, he would have limited physical capacity and would tire easily because he lacked muscles. [Emphasis added.]
27Despite J.B.2’s obvious distress in the days and weeks before his death, he was not taken to the doctor or to the hospital. J.B.2 had not seen a doctor since June 1998, almost four and a half years before his death. James Mills testified that he saw J.B.2 shortly before his death and urged Bottineau to take him to the hospital. She did not do so.
28The appellants received $600 a month for the care of each grandchild. Bottineau was anxious to keep that money coming into the household. She knew she would lose the money if the child welfare authorities determined that her household was not an appropriate place for the children. After J.B.2’s death, the three remaining grandchildren were removed from the home. Bottineau immediately took steps to attempt to recover their custody. These steps included cleaning, painting and heating the room in which J.B.2 and J.B.1 had been kept, lies to various neighbours and others about the cause of J.B.2’s death, and lies about J.B.2’s health in the days preceding his death.
29Neither Bottineau nor Kidman testified at trial.
III
THE CONVICTION APPEALS
Issue #1: Were the Murder Convictions Unreasonable?
(i) The alleged misuse of the “common sense” inference
30The Crown’s case at trial was straightforward. The Crown argued that the appellants, as J.B.2’s guardians, failed to provide the basic necessaries of life, including adequate medical care. The Crown argued that J.B.2’s death was caused by the appellants’ failure to perform their legal duty, thereby rendering the appellants guilty of a culpable homicide. The Crown next argued that the nature of the abuse and neglect, which occurred over a number of years on a daily basis and included starvation and a failure to attend to basic medical and hygiene needs, compelled the conclusion that the appellants knew that their abuse and neglect of J.B.2 had caused him bodily harm, and that without medical intervention, which they never provided, J.B.2’s death was probable.
31The trial judge’s factual findings supported the position put forward by the Crown. Dr. Zlotkin’s evidence is particularly important. He testified that in the weeks, if not months, before J.B.2’s death, he would have been so weak as to be unable to interact with his environment in a meaningful way. Despite that condition, the appellants did nothing to get J.B.2 any medical help, but instead continued the abuse and neglect as it had gone on for years. On the evidence, it would appear Bottineau sought out medical assistance when J.B.2 was very near death or perhaps already dead.
32Counsel for the appellants seem to accept, subject to the question of Bottineau’s reduced intellectual abilities, that the Crown’s case for murder would be formidable had the appellants’ conduct consisted of actions rather than omissions. However, counsel characterize the appellants’ conduct towards J.B.2 as a series of omissions. Once this characterization is made, counsel contend that it is incorrect to draw an inference that someone intends the natural consequences of his or her inaction. Counsel suggest that omissions are so inherently ambiguous as to seldom, if ever, admit of a reasonable inference as to a state of mind accompanying those omissions.
33We cannot accept this submission. While it is true as a generalization that it is harder to infer a state of mind from a failure to act than from actions, the inference-drawing process is not governed by generalizations, but by the evidence and the findings of fact in the specific case.
34The distinction between an action and an omission is often one of semantics. Starving J.B.2 could be seen as an action (withholding adequate nutrition from him), or as an omission (failing to give J.B.2 adequate nutrition). The availability of the inference that a person intended or foresaw a certain result as a probable consequence of conduct will depend on the nature of that conduct and not its categorization as an act or omission.
35On the facts as found by the trial judge, the appellants’ conduct consisted of the egregious, multi-faceted, long-term mistreatment of J.B.2 combined with the failure to seek medical assistance for J.B.2 in the final weeks and months of his life when his dire medical condition was obvious. A reasonable trier of fact could readily conclude that J.B.2’s death was the obvious and inevitable consequence of his mistreatment. A reasonable trier of fact could equally infer that at some point during the mistreatment of J.B.2 the appellants appreciated that their continued abuse and neglect of J.B.2 would probably lead to his death.
36Whether the appellants’ conduct is described as a series of omissions, a series of actions, or a blend of the two, their conduct was of a nature that readily permitted the inference that the appellants knew their conduct would probably bring about J.B.2’s death and yet they chose to persist in that conduct. The facts as found by the trial judge clearly justified the inferences he drew with respect to each appellant’s state of mind.
(ii) The alleged failure to consider Kidman’s diminished role in the household
37The appellant, Kidman, argues that in using the “common sense inference” to determine his state of mind, the trial judge failed to consider the differences in the respective roles of Kidman and Bottineau. Counsel submits that Bottineau ran the household and was primarily responsible for J.B.2’s treatment, while Kidman’s involvement was minimal. He contends that the trial judge erred in failing to appreciate this distinction when applying the common sense inference.
38It is true that Bottineau was in charge of the household and played a much more active role in it than did Kidman. However, on the evidence, which the trial judge thoroughly reviewed, Kidman was in the household every day, was aware of J.B.2’s condition and the condition of the room in which he was kept, and was responsible for physically disciplining J.B.2. There was evidence from statements made by Kidman that he had nothing short of disdain for J.B.2. Kidman’s lies to the police after J.B.2’s death further implicate him in that death.
39The trial judge appreciated the differences between the roles played by Bottineau and Kidman. While it may be true that it was easier to draw the inference of the requisite mens rea from Bottineau’s conduct than from Kidman’s, that does not mean the trial judge erred in drawing the inference in respect of both of them. There was ample evidence justifying the trial judge’s inference from Kidman’s conduct that he knew J.B.2’s death was the probable consequence of the appellant’s mistreatment and neglect of J.B.2.
(iii) The alleged misapprehension and improper rejection of the defence expert evidence of Bottineau’s mental state
40It was common ground between the Crown and defence that Bottineau was well below average intelligence. The parties disagreed on the effect of that intellectual limitation on Bottineau’s mental processes as they related to her ability to foresee the consequences of her treatment of J.B.2. Dr. Nathan Pollock, a psychologist, testified for the defence. In his opinion, Bottineau met the criteria in the D.S.M.-IV-TR for a diagnosis of “mental retardation”. Her IQ of 70, on the borderline required for the diagnosis, combined with significant limitations on her adaptive functioning in several life skill areas, including communication, home living, and interpersonal skills, justified the diagnosis, in his opinion.
41Dr. Pollock also diagnosed Bottineau as suffering from a personality disorder with histrionic and narcissistic features. Persons who suffer from that kind of personality disorder tend to be attention-seeking, egocentric individuals with a shallow expression of emotion and a lack of empathy. They also have difficulty functioning in a social setting.
42Dr. Pollock indicated, based on his interview of Bottineau, that she was a person who had difficulty functioning in stressful situations. She would be unable to bring her thinking into line with reality. The most important part of Dr. Pollock’s evidence came in response to a hypothetical question and was summarized by the trial judge at para. 323 of his reasons:
Dr. Pollock testified that Elva Bottineau copes with discrepant information by shelving it, which would prevent her from consciously thinking that J.B.2 was dying. Not everyone with this same level of intelligence would do this and Dr. Pollock cannot go so far as to say that everyone with an equivalent deficit could not appreciate that the deceased could die. To Elva Bottineau, however, her concern about losing the children if she took J.B.2 to hospital, and losing the money associated with their care, would be very stressful for her. She would then adhere to the view that J.B.2 was not dying. She is unable to consider options, to develop alternatives. To turn away from this information and the obvious declining condition of the deceased would not be a matter of conscious choice. To her there were simply no options available. [Emphasis in original.]
43The Crown called Dr. Lisa Ramshaw, a forensic psychiatrist. She testified that in her opinion Bottineau did not meet the criteria for a diagnosis of mental retardation. Bottineau’s IQ of 70 could be considered borderline and placed her in the second percentile. Dr. Ramshaw stressed, however, that there was a significant difference between a person in the second percentile and a person in the first percentile. Bottineau’s testing and her own statements and writings showed that she had some understanding of relatively complex things like the child labour laws and the parole system. Dr. Ramshaw testified that a person in the second IQ percentile would know that it was wrong not to feed others and would understand what would happen if someone were starved.
44Dr. Ramshaw also disagreed with Dr. Pollock’s view that Bottineau had displayed significant limitations in her adaptive functioning in various facets of her life. Dr. Ramshaw, who had access to a great deal of material that was not considered by Dr. Pollock, concluded that there was no adaptive dysfunction. For example, Bottineau was able to run a large household on a very limited budget for many years.
45Dr. Ramshaw was satisfied that Bottineau had a personality disorder. She explained that in extreme situations, personality disorders can cause persons to see things in terms of good and bad and black and white. Dr. Ramshaw saw evidence of this in Bottineau’s treatment of her four grandchildren. She divided them into the “bad” children, J.B.1 and J.B.2 and the “good” children, M. and J.. The bad ones were effectively disowned and dehumanized. The good ones were idealized. Dr. Ramshaw also identified Bottineau’s need to control things and persons around her. This was apparently a coping mechanism. Dr. Ramshaw believed that Bottineau’s conduct towards her children was better explained by her personality disorder than by her limited intellectual functioning.
46The trial judge rejected Dr. Pollock’s evidence and gave reasons for doing so (paras. 378-388). He observed that Dr. Pollock’s conclusions rested largely on his testing of Bottineau’s intellectual functioning and his interview with Bottineau. She was a notoriously unreliable source of information. Dr. Pollock did not consider evidence from numerous other sources, including neighbours, persons who lived in the house, statements made by Bottineau to the police and in other court proceedings, and other information uncovered during the police investigation. The trial judge concluded, at para. 386:
Dr. Pollock’s conclusion that Elva Bottineau's subaverage intellectual functioning was accompanied by significant limitations in adaptive functioning fails to take into account substantial portions of the evidence adduced at trial that shows or tends to show how Ms. Bottineau actually conducted herself in the everyday world in which she lived. These features, well documented in the evidence of Dr. Ramshaw, do not demonstrate any pervasive pattern of adaptive dysfunction. Quite the opposite. [Emphasis in original.]
47The trial judge also rejected Dr. Pollock’s evidence because, as Dr. Pollock conceded, Bottineau’s limited intellectual abilities could not explain the very different way she treated J.B.2 and J.B.1 on the one hand and M. and J. on the other. Whatever her intellectual limitations, they clearly did not preclude her from appreciating the need to feed, protect and nourish the children under her care. She did that for two of the four children.
48Counsel for Bottineau submits that the trial judge erred in totally disregarding Dr. Pollock’s evidence of Bottineau’s mental state when he rejected Dr. Pollock’s diagnosis that Bottineau was mentally retarded. Counsel submits that even if the diagnosis was rejected, the trial judge was required to give weight to Dr. Pollock’s opinion as to Bottineau’s ability to cope with stressful situations, make decisions, and foresee consequences.
49The trial judge rejected Dr. Pollock’s diagnosis because it was based on an incomplete understanding of how Bottineau functioned in the day-to-day world, and because that opinion could not account for the very different treatment afforded the grandchildren. Both reasons for rejecting Dr. Pollock’s opinion went not only to the validity of the diagnostic label he attached to Bottineau, but also to the validity of his conclusion regarding Bottineau’s appreciation of the consequences of her actions. The trial judge, at para. 379, made it clear that his rejection of Dr. Pollock’s evidence went beyond the diagnosis of mental retardation:
I do not accept the evidence of Dr. Pollock about the effect of Elva Bottineau’s mental condition on her capacity to appreciate the risk involved in her conduct. Not on its own, nor in combination with other evidence does Dr. Pollock’s opinion cause me to have a reasonable doubt about the adequacy of the prosecutor’s proof of the mental or fault element required for unlawful act manslaughter... [Emphasis added.]
50Counsel next submits that the trial judge relied on an “assumption” that Bottineau’s very different treatment of her four grandchildren belied the claim that she was mentally retarded and could not appreciate the consequences of her actions. Counsel contends that there was no evidence to support this “assumption” and that it is not an inference that can be drawn as a matter of common sense or logic.
51This submission comes down to the contention that the trial judge should have taken a different view of the evidence concerning the treatment of the grandchildren than he did. Assuming that the very different treatment of the grandchildren did not compel the rejection of Dr. Pollock’s opinion, it was a factor that the trial judge could properly consider in weighing and ultimately rejecting that opinion. The trial judge was entitled to infer from the gross mistreatment of J.B.2, juxtaposed with the appropriate treatment of his brother and one of his sisters, that Bottineau had the capacity to understand the need to provide the necessaries to her grandchildren and the ability to do so. The trial judge was entitled, based on that differential treatment, to infer that J.B.2’s mistreatment reflected Bottineau’s strong dislike of J.B.2 and not any intellectual limitation. We see no error in the evidentiary significance the trial judge chose to give to the different treatment of the grandchildren.
52Counsel also submitted that, in fact, the children were not treated that differently and the trial judge misunderstood the evidence. We think this submission misunderstands the evidence. All four children had some signs of neglect, however, there was a world of difference between how J.B.1 and J.B.2 were treated on the one hand and the way M. and J. were treated on the other.
53Counsel for Bottineau further contends that the trial judge, having rejected Dr. Pollock’s evidence as it related to the question of Bottineau’s capacity to foresee harm to J.B.2, failed to consider that evidence when determining whether the Crown had proved beyond a reasonable doubt that she had the mens rea for murder.
54In outlining the general principles applicable to murder, the trial judge correctly identified the mental element of murder as defined in s. 229(a)(ii). He appreciated that the mens rea inquiry was subjective. He also adverted to the relevance of expert opinion evidence to the question of mens rea, noting at para. 65:
The expert evidence is considered along with and in the same way as the rest of the evidence that bears on the issue [mens rea] in adjudging the adequacy of the prosecution’s proof of it.
55Finally, the trial judge specifically noted that expert evidence short of demonstrating incapacity was relevant to the question of whether the accused had foreseen the consequences of their actions. He said, at para. 69:
Severe intoxication is not the only cause of an inability to foresee the consequences of a person’s actions, much less to intend them. Some psychiatric conditions may have a similar effect, even though they may not extend to the incapacitating proportions described by McLachlin J. in Creighton. [Emphasis added.]
56The trial judge first dealt with the evidence of Dr. Pollock in the context of Bottineau’s claim that she lacked the capacity to foresee the harm that her course of conduct would cause to J.B.2. This issue arose on the question of whether Bottineau had committed a culpable homicide. The trial judge considered the expert evidence at length and rejected it as it related to the question of capacity.
57Later in his reasons, when the trial judge turned to the evidence relating to the mens rea for murder, he said, at para. 443:
Earlier, I rejected evidence on alleged incapacity of Ms. Bottineau. I have reconsidered it on this issue [the mens rea for murder], despite its earlier rejection. Neither on its own, nor in conjunction with the rest of the evidence in the case does it raise a reasonable doubt that the mental element described in s. 229(a)(ii) has been established in connection with Ms. Bottineau.
58The above-quoted passage reflects an express consideration of the impact of Dr. Pollock’s evidence on the mens rea issue. The trial judge did not fail to consider the expert evidence as it related to mens rea, but instead found that the evidence did not leave him in any doubt as to the existence of the requisite mens rea.
(iv) The use of after-the-fact conduct to infer the requisite mens rea
59Counsel submit that the after-the-fact conduct of the appellants, which included lies to the police, emergency personnel, and hospital personnel concerning J.B.2’s health could not assist in fixing the appellants with the mens rea for murder.
60As we read the reasons for judgment, the after-the-fact conduct played virtually no role in the trial judge’s finding that Bottineau had the necessary mens rea for murder (see paras. 436-444). In cataloguing the evidence relevant to Kidman’s mens rea, the trial judge did refer to the lies that Kidman told to the police during his interview. Kidman had indicated that J.B.2 was healthy and a voracious eater. The trial judge said, at para. 446:
The content of the falsehoods in Kidman’s police interview bespeak an awareness of the essential features of the mistreatment.
61It was open to the trial judge to infer that the lie told by Kidman was an attempt by him to distance himself from J.B.2’s true condition and consequently provided some evidence of his knowledge of that condition.
62We see no error in the trial judge’s use of the after-the-fact conduct in determining the mens rea issue.
Issue #2: The Alleged Failure to Require a Concurrence of the Mens Rea and Actus Reus of Murder.
63Counsel for the appellants start this submission with two uncontroversial principles. The actus reus and mens rea for murder must coexist, and the conduct of the accused must be shown to have caused the victim’s death. Counsel extrapolate from these principles two further propositions:
the prosecution must fix the point in time when an accused formed the requisite mens rea; and
the prosecution can only prove causation in this case if it proves that, at the point in time when the accused formed the mens rea, the victim would have survived had he received appropriate medical care. If the victim would have died in any event, the conduct of the accused after the accused had formed the mens rea cannot be said to have caused the victim’s death.
64Counsel submit that the trial judge failed to address and apply the two propositions set out above. Neither proposition finds any support in the case law or any justification in the principles governing criminal liability. The first proposition is answered by the decision of the Supreme Court of Canada in R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146 at p. 161. Cory J., for the majority, said:
In order to obtain a conviction under s. 212(a)(ii) [now s. 229(a)(ii)] the Crown must prove that the accused caused and intended to cause bodily harm that he knew was likely to cause the death of the victim. If death results from a series of wrongful acts that are part of a single transaction then it must be established that the requisite intent coincided at some point with the wrongful acts. [Emphasis added.]
65It was the Crown’s theory that J.B.2’s death was the product of a prolonged course of conduct involving J.B.2’s starvation, abuse and neglect. This course of conduct was properly viewed as a single transaction. It was not incumbent on the Crown to point to the moment in time when it dawned on the appellants that their conduct would probably result in J.B.2’s death. It was sufficient if the Crown proved that at some point in time during that course of conduct, each accused knew that J.B.2’s death was the probable consequence of the harm their abuse and neglect had caused and continued to cause to J.B.2.
66The trial judge correctly stated the applicable legal principles (paras. 70-78). Like him, we see the principles as equally applicable whether the transaction consists of acts, culpable omissions, or a combination of the two. The trial judge applied those principles to his findings of fact (paras. 436-448). He was not required to search out the precise moment during the course of conduct at which each appellant formed the requisite mens rea.
67The second proposition advanced by the appellants misunderstands causation in the law of homicide. Causation does not ask whether the victim would have died in any event. Everyone will die. Causation asks whether the conduct of the accused was a significant factor contributing to the victim’s death at the time and for the reason the victim in fact died. If an accused’s conduct shortens a victim’s life by a minute, the accused has caused the victim’s death for the purposes of the law of homicide. The medical evidence established beyond peradventure that the appellants’ neglect and mistreatment of J.B.2 was a factual cause of his death.
68Applying the law of causation to the facts as he found them, the trial judge held that the appellants, through their continued abuse and neglect of J.B.2 and their failure to obtain medical assistance, had caused him to die when he did and for the reason he did. Given the appellants’ uncontested legal duty to provide J.B.2 with the necessaries of life, the trial judge’s finding established that the accused, through their course of conduct, had caused J.B.2’s death by an unlawful act and thereby committed a culpable homicide. On the authority of Cooper, the question then became whether the appellants had the mens rea for murder at some point during that course of conduct. The trial judge was satisfied they did. We see no error.
Issue #3: The Admissibility of Bottineau’s Journal.
69The police executed a search warrant at the Bottineau residence on January 23, 2003, about two months after J.B.2’s death. The warrant authorized the police to seize notes prepared by Bottineau at a meeting held at the house on December 1, 2002. The police had reason to believe that the notes summarized statements made by various individuals who had attended the meeting. The police also had reason to believe that Bottineau was attempting to find out what the other residents in the house would say to the police and to formulate a consistent, exculpatory version of the relevant events.
70According to Sergeant Davis, the officer in charge, the journals in issue were found shortly after the search commenced. The journals recorded, in Bottineau’s handwriting, the daily activities of the grandchildren over a considerable time period. Subsequent examination of the journals revealed entries that expressed negative feelings towards J.B.2 and J.B.1.
71The journals figured in the trial in two ways. Both Dr. Pollock and Dr. Ramshaw had access to the journals in assessing Bottineau’s mental state. Dr. Ramshaw made reference to certain entries in her testimony. The trial judge also referred to at least one entry as exhibiting evidence of animus toward J.B.2 and J.B.1.
72Counsel for Bottineau submits that the police did not have authority either under the warrant or pursuant to s. 489(2) of the Criminal Code to seize the journals. The seizure, therefore, breached s. 8 of the Charter. Counsel further argues that given the serious nature of the breach, and the important privacy interests compromised by the s. 8 breach, the evidence should have been excluded under s. 24(2).
73The seizure of the journals was not authorized under the terms of the warrant. The lawfulness of their seizure turns on s. 489(2), which reads in part:
Every peace officer ... who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
74Section 489(2) does not authorize a search. It does, however, expand the seizure powers beyond the material identified in a warrant to, among other things, material that “will afford evidence in respect of an offence”.
75Counsel for Bottineau submits that the reach of s. 489(2) is governed by the common law “plain view” doctrine. Counsel relied upon the decision of this Court in R. v. L.F. (2002), 2002 CanLII 45004 (ON CA), 166 C.C.C. (3d) 97, arguing that it stands for the proposition that the strict preconditions to the exercise of a plain view seizure are imported into the exercise of the seizure power under s. 489(2). This plain view theory is based on the premise that s. 489(2) is simply a codification of the common law plain view doctrine. In substance, that doctrine requires that a seized article must be immediately obvious to the searching party and must have been discovered inadvertently: see R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227.
76We do not read Fawthrop to stand for the proposition that plain view seizure principles are incorporated into the s. 489(2) exercise as a codification of the common law. Writing for the court, Borins J.A. made it clear that the court was not determining that issue because it was not necessary to do so; the seizure could not be said to be lawful in that case on the basis of either s. 489 or the common law plain view doctrine. Moreover, the portions of the reasons in Fawthrop relied on by counsel for Bottineau relate solely to the court’s consideration of the plain view doctrine and do not suggest that those principles somehow apply when persons executing a warrant are relying on s. 489.
77We are not convinced that the complexities of the plain view doctrine should be read into the language of s. 489(2). That language suggests that a determination of the lawfulness of the seizure of the journals would depend on whether the journals were found in the course of the search authorized by the warrant and fit the criterion in s. 489(2)(c). It appears to us that a strong case can be made for the contention that the journals were seized during the search and that there were reasonable grounds to believe they would afford evidence of an offence.
78If the journals were properly seized under s. 489(2), no case could be made out for their exclusion under s. 24(2) on the basis that the police did go beyond their powers by seizing other documents that were not covered under s. 489(2).
79In his reasons, the trial judge found that the seizure went beyond the ambit of the warrant and s. 489(2). He referred to one specific document that, in his view, was improperly seized. He did not make any finding one way or the other with respect to the journals.
80Absent a clear finding, we will assume the best possible scenario for Bottineau. We will assume that the journals were not properly seized pursuant to s. 489(2) and that they should have been excluded under s. 24(2).
81We do not think that their admission could possibly have affected the verdicts. The journals were apparently examined by the experts, but there is no reason to think that Dr. Ramshaw’s opinion would have been any different without the journals.
82The trial judge’s reference to the journals in his reasons occurred during his analysis of the mens rea component of the murder charge and, in particular, the issue of Bottineau’s animus towards J.B.2. That entry read:
As far as J.B.2 and J.B.1, if they are old enough, they can go on their own. Neither aunts wants these two because of the disgusting habits they have imbedded in them from Yvonne and Richard [the children’s parents]. Raised to be little pigs and can’t behave them selfs. [Emphasis added.]
83This single excerpt from the journals was but a small drop in a sea of evidence demonstrating Bottineau’s animus towards J.B.2. The Crown’s evidence of animus, like the rest of its case against both appellants, was overwhelming. Even if the journals were improperly admitted into evidence, their admission had no impact on the verdict and the curative proviso can be safely applied.
Issue #4: Kidman’s Statement to the Police.
84Kidman attacks the trial judge’s admission into evidence of a statement that he made to the police on the day of J.B.2’s death. In the statement, he lied repeatedly about J.B.2’s nutritional and medical care and conducted himself in a way that could lead to the inference that he knew more about what was going on than he was – or is – prepared to acknowledge.
85Counsel for Kidman submits that the statement was involuntary, and therefore inadmissible. She argues that the police knew very well that Kidman may have been involved in J.B.2’s death and that by any objective standard he was a “suspect” at the time they took his statement rather than a mere “person of interest” as they professed to him he was. Since he was a suspect, the argument goes, the police were automatically required to advise him of his right to remain silent and that any statement he made could be used against him in a prosecution arising out of J.B.2’s death.
86While acknowledging that there is no inflexible rule that if a suspect is not cautioned appropriately his or her statement is automatically involuntary in law, counsel argues that the trial judge failed to make any finding whether Kidman was a “suspect” or merely a “person of interest” in his analysis of voluntariness and erroneously proceeded on the basis that Kidman fell into the latter category.
87Again, we would not interfere with the trial judge’s decision to admit the statement.
88We do not think much turns, in these circumstances, on whether Kidman was a “suspect” or someone more benignly viewed by the police. Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary. As the trial judge noted, “[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness,” and all the circumstances must be scrutinized carefully: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 and 71.
89The trial judge conducted that careful scrutiny here. We think it unlikely – even if he had found that Kidman was a suspect – that he would have concluded the statement was involuntary. In any event, we do not.
90Kidman willingly attended at the police station, at the request of the police, to give a statement to the police about the events. He was not detained and was free to leave at any time. He was told, prior to the interview, that:
(i) the statement would be under oath or affirmation;
(ii) the police believed J.B.2’s death was “suspicious”;
(iii) he did not have to make a statement, and had the right to choose whether to do so or not;
(iv) there were potential consequences if he lied while making the statement (it was a criminal offence to do so, and he could be liable to prosecution); and
(v) he might be a witness at trial, where his statement could be used against him if he recanted or claimed it was false.
91This was not the standard caution given to a suspect, which states specifically that the suspect may be charged with a criminal offence but has the right to remain silent and that anything said during the interview can be used against the suspect in court if he or she is charged with a crime. However, it brought home to Kidman that he did not have to give the statement and that there were potential adverse consequences in doing so. Kidman indicated he understood all of this.
92At the same time, Kidman knew that he was one of J.B.2’s caregivers and guardians and that the police were aware of that fact. He knew that the police were investigating the circumstances surrounding his grandson’s death, which they considered to be suspicious. He knew he was considered a person of interest. In all of these circumstances, we agree with the trial judge’s conclusion that:
A person of modest intelligence would be hard pressed not to conclude that, if she or he were to say anything that indicated a responsibility for what had happened to J.B.2, such an acknowledgement may be used as evidence in their prosecution.
93Counsel for Kidman submits that he was not a “person of modest intelligence” but rather a person “of limited resources” when it comes to intelligence – a fact the trial judge later recognized in his reasons for sentencing. Generally, it is Bottineau who plays the “person of lesser intelligence” card in these proceedings, but Kidman seeks to do so when it comes to his statement and, later, to sentencing. However, there is no evidence about his level of intellectual functioning or about where he is on the I.Q. curve, and he has been gainfully employed throughout his adult life and able to function on a day-to-day basis. Simply because a person is not of average or above-average intelligence does not mean that person is unable to understand or appreciate what is going on in circumstances such as those in which Kidman found himself at the time of his statement.
94Here, there were no threats or promises or “fear of prejudice or hope of advantage” to impede the voluntariness of Kidman’s statement. There was no oppression. He possessed the necessary operating mind which, as the Supreme Court has said, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 936. The police used no trickery in this case.
95We are satisfied that Kidman’s statement to the police met the requirements for voluntariness on the authorities and on the facts as found in the record, and that the trial judge was correct in so finding. See, generally, R v. Oickle, supra. Indeed, as the trial judge concluded, “[t]he interview of Norman Kidman is the antithesis of involuntariness.”
96This ground of appeal is dismissed.
Issue #5: The Conviction for Unlawful Confinement.
97Both appellants attack their convictions for the unlawful confinement of their granddaughter, J.B.1.
98There can be no question that J.B.1, and her brother J.B.2, were confined. They were locked in their room, without choice, for upwards of twelve hours per day. The rancid smell of urine and feces in that sordid room bear long-lasting testimony to that fact.
99The central defence raised by the appellants is that the confinement was not “unlawful.” It was not unlawful, they say, because they were simply exercising their parental/guardianship authority in disciplining the children in the children’s best interests – although admittedly in a misguided way amounting to “bad parenting.” Why? Essentially because the children needed to be protected from drinking out of the toilet bowl in the bathroom.
100Given the horrific context of these proceedings, this argument needs only to be stated to be exposed for what it is: patently preposterous.
101A confinement is “without lawful authority,” pursuant to s. 279(2) of the Criminal Code, if it is done in circumstances that the law does not permit. The trial judge dealt with the parameters of this defence in this way:
It cannot be gainsaid that a parent or lawful guardian of a child of the age with which we are concerned here has the authority to control a child’s behaviour, including imposing restrictions on the child’s liberty to move from place to place according to the child’s own wishes. Yet the authority, like the statutory authority for which section 43 of the Criminal Code provides,1 is not without limit. Neither permits degrading, inhuman or harmful conduct. [Italics in original; underlining added.]
102Later, he said:
In general terms, parental discipline tends to be incident-specific and responsive. A child does or fails to do something. The parent disciplines the child for the conduct or omission. But that is simply not this case. Here, the confinement was a daily or near daily event, unresponsive to any conduct of J.B.1, other than her general “bad character” as reflected in Ms. Bottineau’s journal entry mentioned earlier. And its nature, extent and duration vastly exceeded any statutory or common law jurisdiction. [Emphasis added.]
103We agree. The confinement in this case was degrading, inhumane and harmful in the extreme. Its nature, extent and duration vastly exceeded any statutory or common law jurisdiction and was, without question, unlawful.
104Kidman raises the additional argument that the trial judge failed to consider his limited role in the operation of the household and the fact that he was out of the house at work for most of the day and therefore would be unaware of many of the facts underpinning the unlawful confinement: he went to work early in the morning, returned at 5 o’clock, sat down and watched television, had dinner, and went to bed at 8 o’clock.
105We do not accept this submission.
106The evidence established that Kidman was both aware of and participated in J.B.1’s mistreatment and confinement. Indeed, by pleading guilty to manslaughter, he implicitly admitted that he was equally responsible for the children’s care. He could not have been unaware of the clearly visible lock on the outside of the bedroom, and the fact the children were locked in the bedroom on a daily basis; he had to walk by it to go to his own bedroom and to the bathroom. In his statement he described how he and Bottineau had removed all the furniture from the bedroom so that it would not get soiled with feces. He was aware of J.B.1’s difficulties and portrayed her as having “behavioural problems” to Dr. Wong. He was correctly found to be a principal in the unlawful confinement.
107This ground of appeal is dismissed as well.
IV
THE SENTENCE APPEALS
108The trial judge imposed a life sentence on the appellant, Bottineau, and directed that she not be eligible for parole for 22 years. He imposed a concurrent eight-year sentence on the unlawful confinement charge. The trial judge sentenced the appellant, Kidman, to life imprisonment without eligibility for parole for 20 years. He also imposed a concurrent eight-year sentence on the unlawful confinement charge.
109The appellants appeal the parole ineligibility periods imposed by the trial judge.
110Counsel for Bottineau argues that the appropriate parole ineligibility period for this offence and this offender is between 12 and 14 years. Counsel submits that the trial judge made two errors. First, he failed to properly consider Bottineau’s diminished mental capacity when determining the appropriate period. Second, he imposed a period that was outside the acceptable range established by the case law.
111Counsel for Kidman submits that the appropriate period of parole ineligibility for his client is between 12 and 15 years. We note that at trial Kidman’s lawyer had suggested a range of 15 to 18 years. Counsel argues that the trial judge made three errors in relation to Kidman’s period of parole ineligibility. First, he imposed a period that failed to reflect the lesser role that Kidman played in the death as compared to Bottineau. He further failed to give Kidman credit for his plea of guilty at trial to manslaughter and, finally, he imposed a period of parole ineligibility outside the acceptable range.
112On a conviction for second degree murder, s. 745.4 of the Criminal Code gives the trial judge discretion to increase the mandatory minimum 10-year parole ineligibility period up to 25 years. In exercising this discretion, a trial judge is required to consider the specific factors referred to in s. 745.4 as well as the general objectives and principles of sentencing.
113The section lists four factors for consideration. Since this case was tried without a jury, only three are applicable: 1) the character of the offender; 2) the nature of the offence; and 3) the circumstances surrounding the commission of the offence.
114The appellants’ challenges to the periods of parole ineligibility are focussed on relatively narrow aspects of the trial judge’s comprehensive reasons for sentence. We think it is important to assess the appellants’ complaints in the context of the trial judge’s overall conclusions about the nature of the offences and the character and culpability of the appellants.
115In his reasons for sentence, the trial judge reviewed many of his most important findings of fact that led him to convict the appellants of murder. The trial judge, quite properly in our view, described the murder as a crime of “inordinate cruelty and inhumanity”, which clearly fell in the worst group of offences. There were many aggravating factors, including the following:
J.B.2 died a slow and painful death through protracted abuse and starvation. A healthy and happy child at the age of one, he was wasted, stunted, bruised and covered in sores when he died just before his sixth birthday;
J.B.2’s murder by the appellants involved an appalling breach of trust. Furthermore, this was “not a case of guardianship being thrust upon grandparents, rather one in which it was sought. Only to be abused repeatedly”;
There was a chilling difference between the treatment of J.B.2 and J.B.1, on the one hand, and their two siblings, M. and J., on the other;
M. and J. witnessed the protracted murder of J.B.2 and the abuse of J.B.1 at the hands of their grandparents. The children’s subsequent conduct in foster care revealed their own profound trauma;
There was no explanation or other attenuating circumstances for the differential treatment of the children and the targeting of J.B.2 for the most egregious abuse;
In terms of post-offence conduct, Bottineau only called 911 when J.B.2 was likely already dead. She then berated the emergency personnel for making too much noise. Kidman’s reaction to his grandson being taken to the hospital was to comment that he still “peed and pooped in his bed”. Later on, both appellants lied extensively to medical and police investigators in an attempt to cover up J.B.2’s longstanding abuse and suffering.
116When addressing the issue of parole ineligibility, the court is also required to consider the character of the offender. In this case, there were several similarities between the two appellants. Both had limited education and were somewhat intellectually impoverished. Both had prior convictions for assaulting children in their care, committed when they were much younger.
117The trial judge found that the appellants committed J.B.2’s murder as joint principals and that the nature and extent of their conduct put them in or close to the worst group of offenders. He pointed out that their conduct in this case involved “the relentless pursuit of a course of unyielding inhumanity and degradation”, which stemmed from “the unremitting denial of adequate nutrition and medical care”. We agree with this assessment.
118Before addressing the appellants’ submissions, we note that the trial judge correctly set out the applicable sentencing principles. The appellants do not argue that the trial judge erred when setting out the law. Rather, their arguments are directed at the way he applied certain principles to the facts of this case.
119Bottineau’s counsel argues that the trial judge erred in not attaching weight to Bottineau’s intellectual limitations in determining the appropriate period of parole ineligibility. Counsel submits that having concluded that Bottineau was not mentally retarded, the trial judge did not adequately recognize that her impoverished intellect was still a mitigating factor in assessing her level of culpability.
120We do not accept this argument. The trial judge was very alive to Bottineau’s intellectual capacity. On several occasions in his reasons for sentence he recognized that she was not very bright or sophisticated. However, he concluded she was clearly capable of choosing to discriminate between the children and was able to care for some properly while abusing others.
121In addressing Bottineau’s character, the trial judge said:
Elva Bottineau has diminished intellectual resources but this deficit does not, indeed cannot explain her discriminatory conduct towards two of her charges, and her concurrent adequate care of the others. She has, I have not the slightest doubt, a personality disorder. She is a cunning and manipulative woman, self-centered and self-impressed in the extreme, disinclined, if not incapable, of speaking truthfully about anything of consequence that involves responsibility on her part.
122The trial judge also described Bottineau as being “intellectually impoverished, but morally bankrupt”. The trial judge’s conclusions with respect to her character were amply supported by the evidence.
123Bottineau’s counsel also argues that a period of parole ineligibility of 22 years was outside the appropriate range. Counsel submits that the appropriate range for this offence and this offender is 12 to 14 years.
124We do not agree with this submission. Sentencing is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
125Counsel referred us to four cases in which our court has addressed the issue of the appropriate period of parole ineligibility for a person who has been convicted of second degree murder of a child in his or her care. We do not accept that these cases lead to a conclusion that the period of parole ineligibility for Bottineau is excessive.
126In R. v. Dooley (2009), 2009 ONCA 910, 249 C.C.C. (3d) 449 (Ont. C.A.), this court upheld periods of parole ineligibility of 18 and 13 years. In R. v. Khan (2007), 2007 ONCA 779, 230 O.A.C. 174 (C.A.), and R. v. Olsen (1999), 1999 CanLII 1541 (ON CA), 131 C.C.C. (3d) 355 (Ont. C.A.), this court upheld periods of 15 years. Like any case involving the murder of a child by a person in a position of trust, the facts in each of these cases were terrible. The conduct involved was variously described as inhumane, cruel and brutal. However, as terrible as the conduct in these cases may have been, the conduct in the present case was even worse. What sets this case apart, in our view, is the prolonged period of starvation, abuse and cruelty – over three years – and the enormous suffering J.B.2 endured during that extended period.
127Counsel also referred us to this court’s decision in Clarke (2005), 2005 CanLII 15705 (ON CA), 197 O.A.C. 366 (C.A.). In Clarke, this court upheld a 20-year period of parole ineligibility and commented that the period may be at the high end of the appropriate range. The facts in Clarke are not set out in the reasons. Be that as it may, the 20-year period upheld in Clarke does not constitute a basis to interfere with Bottineau’s sentence.
128In the result, we do not consider that the period of parole ineligibility for Bottineau runs afoul of the principle that similar sentences should be imposed for similar offences and offenders. We agree with the trial judge that Bottineau’s high degree of moral blameworthiness for such a horrendous murder properly placed her towards the top end of the parole ineligibility scale.
129Kidman makes three arguments with respect to his period of parole ineligibility.
130First, his counsel argues that the trial judge failed to consider Kidman’s limited role in the acts or omissions that led to J.B.2’s death. Counsel points out that Bottineau was the prime caregiver and for all practical purposes responsible for the enormous harm inflicted on J.B.2. Kidman, the argument goes, was an inactive participant and as such should have received more than a two-year discount from the period of parole ineligibility imposed on Bottineau.
131We do not accept this submission. Kidman, like Bottineau, was a legal guardian of J.B.2. He had the same duty to take care of J.B.2 as did Bottineau. Importantly, the trial judge’s findings of fact do not support the limited role counsel now urges should guide our disposition. The trial judge found that Kidman had animus towards J.B.2. He condoned and participated in the differential treatment of the children.
132The trial judge’s reasons for conviction and sentence make it abundantly clear that he understood the respective roles of Kidman and Bottineau. The trial judge found that Kidman was a principal in the offence of murder. That finding has not been challenged on appeal as indeed it could not succeed. There was ample evidence to support the trial judge’s conclusion that Kidman played more than the passive, secondary role that underlies this submission.
133Next, Kidman’s counsel argues that the trial judge erred in failing to take into account Kidman’s guilty plea to the offence of manslaughter at trial as a mitigating factor. She argues the plea of guilty was a sign that he accepted some responsibility for his conduct.
134We see no error. The trial judge acknowledged the guilty plea in his reasons. He found, however, that the offence fell within the worst group of such offences and that Kidman was close to or in the worst group of offenders. The defence recognized as much at sentencing before the trial judge, and submitted that a range for the worst offences was 15 to 18 years. In our view, the trial judge properly exercised his discretion in favour of a parole ineligibility term of 20 years given the cruelty, inhumanity and callousness of Kidman’s conduct in this case. We are not persuaded that he erred in not imposing a shorter period because of Kidman’s plea of guilty to manslaughter.
135Finally, Kidman, like Bottineau, argues that the period of parole ineligibility was outside the acceptable range. For the reasons given above with respect to Bottineau, we reject this submission.
136In the result, we dismiss both sentence appeals.
V
CONCLUSION
137For the reasons set out above, the appeals are dismissed.
RELEASED: “DOC” “MAR 11 2011”
“Dennis O’Connor A.C.J.O.”
Doherty J.A.”
“R.A. Blair J.A.”
Footnotes
- Section 43 of the Criminal Code provides that schoolteachers, parents or persons standing in the place of parents are justified in using force by way of correction toward a pupil or child under their care, if the force does not exceed what is reasonable in the circumstances.
