Her Majesty the Queen v. Lis

[Indexed as: R. v. Lis]

Ontario Reports

Court of Appeal for Ontario

Watt, Harvison Young and Coroza JJ.A.

September 3, 2020

152 O.R. (3d) 125 | 2020 ONCA 551

Case Summary

Criminal law — Sentencing — Failure to provide necessaries of life — Accused's developmentally delayed daughter dying at age nine from malnutrition and dehydration — Sentencing judge criticizing Children's Aid Society and finding accused not to be a worst-case offender — Accused granted enhanced credit of 17 months for pre-disposition custody and sentenced to one day to be served concurrently with one-day dispositions for three other counts — Sentence of three years imposed on appeal, with execution of custody order stayed — Sentencing judge failed to accord primacy to denunciation and deterrence, erred in considering Children's Aid shortcomings as a sentencing consideration, and did not give effect to principle of proportionality — Criminal Code, R.S.C. 1985, c. C-46, s. 718.01.

Criminal law — Sentencing — Principles of sentencing — Accused's developmentally delayed daughter dying at age nine from malnutrition and dehydration — Sentencing judge criticizing Children's Aid Society and finding accused not to be a worst-case offender — Accused granted enhanced credit of 17 months for pre-disposition custody and sentenced to one day to be served concurrently with one-day dispositions for three other counts — Sentence of three years imposed on [page126] appeal, with execution of custody order stayed — Sentencing judge failed to accord primacy to denunciation and deterrence, erred in considering Children's Aid shortcomings as a sentencing consideration, and did not give effect to principle of proportionality — Criminal Code, R.S.C. 1985, c. C-46, s. 718.01.

The respondent's daughter, who was globally and developmentally delayed due to cerebral palsy, died at age nine of complications of malnutrition and dehydration. The Children's Aid Society ("CAS") had been extensively involved with the family due to the respondent's substance abuse and neglect of her children through inadequate supervision. A few days before the death the respondent had noticed that the child was sick and was not eating or drinking, but did not take the child to the hospital. On the date of death the respondent had left her four children with a sitter. In a period of about five weeks before she died, the child had lost nearly a third of her body weight. The respondent pleaded guilty to failure to provide the necessaries of life, possession of heroin, possession of methamphetamine, and failure to attend court when required. The sentencing judge found as a fact that the child was already dead when the respondent left her apartment to smoke drugs with a friend. The judge criticized the CAS for failing to visit the respondent's home every 30 days and allowing her to cancel multiple scheduled visits. The judge observed that the most significant aggravating factor was the respondent's collapse within herself to the point that she could no longer see if the child was alive or dead. The respondent was not considered to be a worst-case offender. Enhanced credit of 17 months was awarded for pre-disposition custody, resulting in a sentence of one day on each count to be served concurrently, followed by three years of probation on terms including recommended counselling or treatment for substance abuse, mental health and grief counselling, and a prohibition against consumption or possession of illegal drugs. The Crown appealed the sentence.

Held, the appeal should be allowed.

The sentencing judge failed to accord primacy to denunciation and deterrence as required by s. 718.01 of the Criminal Code. That provision was engaged by the fact that the offences involved the abuse of a person under age 18 and it precluded the judge from elevating other sentencing objectives, such as rehabilitation, to equivalent or greater priority than denunciation and deterrence. Further, it did not appear that the sentencing judge considered 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 judge erred in considering the failures of the CAS as a factor in sentencing. That the CAS failed to live up to its mandate was beside the point for the purposes of the respondent's criminal liability, her degree of responsibility, and her moral blameworthiness.

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 as an indication that higher punishments were required for the offence of failure to provide the necessaries of life. Further, she appeared to have diminished the subjective gravity of the offence by characterizing it as a momentary lapse under a confluence of unfortunate life events, and diminished the respondent's degree of responsibility by referring to the inadequacies of the CAS.

The sentence imposed was demonstrably unfit. A fit sentence in the circumstances of the offence and the offender was three to three and one-half years in a penitentiary. In place of the one-day sentence imposed by the sentencing judge, [page127] a sentence of three years in a penitentiary was imposed on the count of failure to provide necessaries of life, reduced by 17 months for pre-disposition custody. The execution of the custodial remanet of 19 months was stayed. The remaining orders, including the concurrent one-day sentences on the other counts, remained in force.

Friesen (para. 53), considered

Other cases referred to

R. c. Rayo, 2018 QCCA 824; R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] 1 SCR 941; R. v. Cheddesingh, 2004 SCC 16, [2004] 1 SCR 433; R. v. D. (D.), 2002 CanLII 44915 (ON CA); R. v. Friesen, 2020 SCC 9; R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089; R. v. Lis, 2019 ONCJ 577; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122; R. v. Peterson, 2005 CanLII 37972 (ON CA); R. v. Woodward, 2011 ONCA 610

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 215 [as am.], (2) [as am.], Part XXII [as am.], ss. 687(1), 718 [as am.], 718.01, 718.1 [as am.], 718.2 [as am.], (a)(ii) [as am.], (ii.1), (iii.1)

APPEAL by the Crown from sentence for failure to provide necessaries of life.

Rebecca De Filippis and Lisa Joyal, for applicant/appellant.

Boris Bytensky and Brittany Smith, for respondent.

The judgment of the court was delivered by

WATT J.A.: —

1The Criminal Code, R.S.C., 1985, c. C-46, imposes a duty on parents. They must provide the necessaries of life to their children under 16. Among the necessaries of life is medical assistance.

2A parent who, without lawful excuse, fails to provide the necessaries of life to their child under 16 commits an offence if, by that failure, the parent causes the child's health to be endangered permanently.

3Meredith Lis (the respondent) is a parent. She had four children of whom K.L. was the youngest.

4K.L. lived with the respondent and one of her siblings. K.L. had cerebral palsy. She was globally and developmentally delayed. She could not walk unaided. She could not crawl. She was non-verbal. She wore diapers and slept in a baby's crib. She ate only puréed food and a liquid supplement.

5When K.L. was nine years old, weighing only 31 pounds, she died of complications of malnutrition and dehydration in the [page128] setting of cerebral palsy. K.L. died because her mother -- the respondent -- failed to obtain the medical assistance K.L. so desperately needed.

6The respondent pleaded guilty before a judge of the Ontario Court of Justice on an information containing four counts:

-- failure to provide the necessaries of life;

-- possession of heroin;

-- possession of methamphetamine; and

-- failure to attend court when required.

7The sentencing judge awarded enhanced credit for the time the respondent had spent in pre-disposition custody. This period, the sentencing judge calculated, amounted to the functional equivalent of a sentence of 17 months' imprisonment.

8On the count of failure to provide the necessaries of life, the sentencing judge sentenced the respondent to imprisonment for one day, to be followed by probation for three years.

9The Crown appeals the sentence imposed.

10In these reasons, I explain why I would grant leave to appeal, allow the appeal, and impose a sentence of three years in a penitentiary. From that sentence, I would deduct 17 months as credit for pre-disposition custody, leaving a net sentence of 19 months' imprisonment. I would not disturb the terms or length of the probation order. The Crown does not ask that we reincarcerate the respondent to serve what remains of her sentence and I would not do so.

The Background Facts

11The Crown alleged that over a period of about five and one-half weeks, the respondent's failure to provide K.L. with sufficient food, water, and medical attention caused K.L. to die. K.L. was totally dependent on the respondent and others to care for her.

The Hospitalization in 2016

12In early 2016, K.L.'s father took her to the emergency ward of a local hospital in Eastern Ontario. K.L. was dehydrated, lethargic, and congested. She was transferred to a larger hospital where she was examined by specialists and her nutritional needs established.

13About two weeks after K.L. had been released from hospital, the respondent took her to a doctor. K.L. was to return to the doctor every three months, be seen by a pediatrician to whom she was referred, and continue to attend a local respite care facility. [page129]

14The respondent did not take K.L. to her family doctor every three months as the doctor requested. Her next and last visit was nine months later, on December 20, 2016. K.L. then weighed 42.13 pounds.

The Involvement of CAS

15The Children's Aid Society ("CAS") were extensively involved with the respondent's family. Their involvement stemmed from the respondent's substance abuse and neglect of her children through inadequate supervision. Workers were concerned about custody and access and its impact on the children, particularly K.L., who was left under the supervision of an older sibling from time to time.

16The respondent's mother died in March 2017. Her death had a significant impact on the respondent. The children were frequently absent from school. K.L.'s wheelchair needed maintenance. The respondent struggled with her mother's death and K.L.'s transfer from regular classes to a Life Skills program. She was behind in her rent and feared eviction.

17The CAS required face-to-face visits every 30 days. The last home visit occurred on June 26, 2017, after which the respondent cancelled or rescheduled all subsequent visits. None took place.

The Final Days

18A few days before K.L. died, the respondent told a friend that K.L. was really sick and was not eating or drinking. The friend told the respondent to take K.L. to the hospital. The respondent demurred.

19On the day K.L. died, the respondent asked a friend to come over to watch the children because she wanted to go out for a couple of hours. The respondent left the friend in charge of the children and left to visit another friend with whom she smoked a joint.

20Shortly after the respondent left her home, the sitter checked on the children. K.L. was not breathing. The sitter called the respondent who "freaked out". When it was suggested that she should call 911, the respondent repeated, "I've got to think". Her companion called 911.

The 911 Response

21Within minutes, first responders found K.L. on the floor in the living room of the respondent's apartment. K.L. had no vital signs. The coroner, who arrived about one and one-half hours after [page130] the paramedics, indicated that based on the presence of rigor mortis, the deceased could have died four to six hours earlier.

The Cause of Death

22The deceased died of complications of dehydration and malnutrition in the context of cerebral palsy. When last weighed on July 28, 2017, K.L. weighed 45 pounds. For 14 months she had not weighed less than 40 pounds. When she died, she weighed 31 pounds. She had lost nearly one third of her body weight between July 28 and September 4, 2017, a period of about five and one-half weeks.

The Sentencing Proceedings

23The sentencing judge ordered a Presentence Report which, together with the submissions of counsel, provided information about the respondent and her circumstances.

The Circumstances of the Respondent

24The respondent was 41 years old when K.L. died and 43 when she was sentenced. She had a difficult childhood fraught with emotional abuse from her mother and an absent father. First "kicked out" of the family home at age 13, she returned intermittently before she left for good at age 15. Despite an aptitude for academics, she did not complete high school. She had worked in various service jobs until she was 30 but did not work outside the home thereafter.

25The respondent has had four children. Her first child was born when she was 16. As an adult, the respondent has been involved in two abusive relationships, including one with K.L.'s father. She has a lengthy history of drug abuse.

26Trial counsel filed several reference letters on behalf of the respondent. Their authors attested to the respondent's caring nature and willingness to help others. While in custody awaiting trial, the respondent participated in a methadone program as well as several other life-skills oriented sessions.

The Positions of the Parties on Sentence

27The trial Crown sought a sentence of four years in a penitentiary on the conviction for failing to provide the necessaries of life and concurrent sentences of much briefer durations for the drug and failure to attend court convictions. The Crown emphasized the egregious nature of the offence, which involved a significant breach of trust in connection with a highly vulnerable child, as well as the paramountcy of the sentencing objectives of deterrence [page131] and denunciation. She advocated for the imposition of a sentence that reflected the principles applied in cases of sexual abuse of children and gave effect to a recent statutory amendment increasing the punishment on conviction from a maximum of two to five years.

28Trial counsel for the respondent identified the applicable range of sentence as a term of imprisonment of 12 months to three years. She acknowledged that a penitentiary sentence was warranted and accepted that it should not be at the lowest end of the range due to the gravity of the respondent's conduct. Counsel submitted that an appropriate sentence was two and one-half years, less enhanced credit for pre-disposition custody, coupled with a probation order for three years with a term requiring counselling.

29The parties agreed that the respondent should receive enhanced credit for pre-disposition custody. The sentencing judge calculated that credit at 17 months.

The Reasons for Sentence

30The sentencing judge reserved her decision on sentence for two months. She provided lengthy reasons in which she canvassed

-- the circumstances of the deceased;

-- the circumstances of the offence;

-- the circumstances of the offender; and

-- the positions of the parties.

31In a part of her reasons designated Sentencing Principles -- Criminal Code of Canada, the sentencing judge reproduced the text of ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code before turning to Enhanced Pre-Sentence Custody Credit, a listing of mitigating, aggravating, and other factors.

32The essence of the sentencing judge's reasons appears in two passages. The first, entitled Synthesis, the second, Sentences. Omitting the headings, the relevant paragraphs are these [at paras. 192-198]:

This case is a pure tragedy all around. There are no black or white lines as various family members have tried to portray. There is only dense grey smoke.

Clearly a message needs to be sent by the Court to the community that those responsible for the care of vulnerable persons cannot just hide in plain sight, as Meredith did, nor collapse within oneself, as Meredith did, without calling out for help. [page132]

The most significant aggravating factor in this case is Meredith's collapse to the point that she could no longer see if [K.L.] was alive or dead.

I have found as fact based on the evidence that [K.L.] was already dead when Meredith left the apartment at 5 pm to smoke drugs with a friend.

Considering both the mitigating, aggravating and other factors that have been presented at this hearing, this is not a case to impose a sentence of 4 years as submitted by the Crown. This is not a worst-case offender even though the victim was the most fragile of victims. [K.L.] had been sick for most of her life. Meredith took good care of her for most of her life. The total failure period as I calculate it to be is 17 days out of this child's nine years.

A total sentence of 2 and 1/2 years (30 months) as proposed by the Defence. I find this position to be high in all the circumstances of this tragedy.

Given that Meredith Lis has enhanced credit for pre-trial custody of 17 months her sentence will be one of time-served. I have considered the totality principle of sentencing in my final decision.

33The sentence imposed was one day on each count to be served concurrently with each other, followed by a period of probation for three years on terms including recommended counselling or treatment for substance abuse, mental health and grief counselling, and a prohibition against consumption or possession of non-medically prescribed illegal drugs.

The Grounds of Appeal

34The Crown contends that the sentencing judge erred

(i) in failing to treat denunciation and deterrence as the paramount sentencing objectives as required by s. 718.01 of the Criminal Code;

(ii) in assessing the mitigating factors;

(iii) in interpreting and applying the principle of proportionality; and

(iv) in imposing a sentence that is demonstrably unfit.

Ground #1: Failing to Accord Primacy to Denunciation and Deterrence under Section 718.01

35The first ground of appeal does not require any further reference to the circumstances of the offence or those of the respondent. A brief summary of the arguments advanced by the parties will provide a sufficient frame for the discussion that follows. [page133]

The Arguments on Appeal

36The Crown appellant contends that, when read as a whole, the reasons for sentence demonstrate that the sentencing judge gave greater consideration to the respondent's rehabilitative prospects than to the sentencing objectives of deterrence and denunciation. In doing so, the sentencing judge made a fundamental error in principle.

37The Crown submits that this case involved the abuse of a person under 18 years of age. As a result, s. 718.01 of the Criminal Code was engaged. This required the sentencing judge to give primary consideration to the sentencing objectives of denunciation and deterrence, not rehabilitation. The mandatory nature of s. 718.01 required a substantial penitentiary sentence to vindicate those primary sentencing objectives. The sentence imposed was inadequate. It failed to reflect denunciation, which is offence, not offender-focused, or general deterrence, which punishes an offender more severely, not because she deserves it, but because the sentencing court decides to send a message to others who may be inclined to engage in like activity.

38The respondent emphasizes the highly individualized nature of the sentencing process which accords substantial leeway to sentencing judges in balancing competing sentencing objectives. Simply because the appellant or even this court might assign different weight to a sentencing objective, such as rehabilitation, does not amount to an error in principle or otherwise permit appellate intervention.

39The respondent says that far from failing to accord primacy to the sentencing objectives of denunciation and deterrence, the sentencing judge referred to s. 718.01 and made it clear that a message was required to deter others from similar conduct and denounce the offence. Neither the sentence imposed nor anything in the reasons demonstrates an erroneous substitution of rehabilitation as the primary sentencing objective in lieu of denunciation and deterrence as required by s. 718.01.

40According to the respondent, the sentencing judge appreciated the seriousness of the respondent's offence and its high degree of moral blameworthiness. She did not err by considering the sentencing objective of rehabilitation, having already made it clear that denunciation and deterrence occupied the most prominent place. The sentence imposed fell within the applicable sentencing range, even after Parliament had increased the maximum sentence from two to five years. That the sentencing judge could have imposed a sentence more towards the upper end of that range does not mean that appellate intervention is warranted. [page134]

The Governing Principles

41Before examining the specific claims of error advanced, it is helpful to recall some brief points about the standard we are to apply on our review of the fitness of a sentence imposed under s. 687(1) of the Criminal Code.

(1) The standard for appellate intervention

42An error in principle (the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor) can justify our intervention, permit us to inquire into the fitness of the sentence, and replace it with a sentence we consider appropriate. But not in all cases. It is only where it appears from the sentencing judge's decision that an error of the nature described impacted the sentence imposed that we are permitted to intervene: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26.

43We may not intervene simply because we would have weighed the relevant sentencing objectives, principles, or factors differently than the sentencing judge. Although we are disentitled from intervening simply because we would have located the sentence in a different range or category, we may do so if the sentence is demonstrably unfit: Lacasse, at paras. 49, 51. A sentence is demonstrably unfit, even in the absence of error, if it is "clearly unreasonable", "clearly excessive or inadequate", or represents a "substantial and marked departure": Lacasse, at paras. 51-52; Friesen, at para. 26.

44If we conclude that a sentencing judge has made an error in principle that had an impact on sentence or has imposed a sentence that is demonstrably unfit, we must perform our own sentencing analysis to determine a fit sentence. In doing so, we must apply the applicable sentencing objectives, principles, and factors without deference to the existing sentence, even if that sentence falls within the applicable sentence range. However, at least to the extent that they are not affected by an error in principle, we must defer to the sentencing judge's findings of fact and identification of aggravating and mitigating factors: Friesen, at paras. 27-28.

(2) The fundamental principle of sentencing

45The genesis of all sentencing is the principle of proportionality. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the fundamental principle of sentencing now embodied in s. 718.1 of the Criminal Code: Lacasse, at para. 53; Friesen, at paras. 30-32. [page135]

(3) The relationship of sentencing objectives and principles

46The determination of whether a sentence is fit requires us to consider the sentencing objectives in s. 718 and the sentencing principles included in s. 718.2: Lacasse, at para. 54.

(4) The effect of s. 718.01

47By enacting s. 718.01, Parliament prioritized denunciation and deterrence for offences that involve abuse of children. The words "primary consideration" prescribe a relative ordering of sentencing objectives, a feature that does not appear in their listing in s. 718. This ordering reflects Parliament's intention that sentences "better reflect the seriousness of the offence": Friesen, at paras. 101-102.

48The enactment of s. 718.01 also qualifies the previous direction of the Supreme Court that it falls to the sentencing judge to determine which sentencing objectives are to be prioritized. Section 718.01 confines the sentencing judge's discretion from elevating other sentencing objectives to an equal or higher priority. However, the sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: Friesen, at para. 104; R. c. Rayo, 2018 QCCA 824, at paras. 103, 107 and 108.

(5) The effect of an increase in the maximum sentence for failure to provide necessaries.

49Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament's decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen, at paras. 96-97. To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen, at para. 100.

(6) The admissibility of fresh evidence

50The traditional fresh evidence criteria apply when a party proffers fresh evidence on an appeal from sentence. The court must determine whether it thinks "fit" to receive that evidence. The overarching principle is whether the court considers it in "the interests of justice" to admit the evidence: Lacasse, at paras. 115-116. [page136]

51Evidence of post-sentence breaches of a probation order, even if unrelated to the offence for which the sentence was imposed, may be relevant to a party's character, conduct, and attitude, and thus rehabilitative prospects: Lacasse, at paras. 118-120.

The Principles Applied

52I would give effect to this ground of appeal. Neither the reasons, read as a whole, nor the sentence imposed, reveals fidelity to the mandate of s. 718.01 of the Criminal Code.

53The enactment of s. 718.01 means that it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence. The sentencing judge did not have the benefit of the decision in Friesen that clarified the impact on her discretion to determine the priority of sentencing objectives.

54The sentencing judge excerpted several sections of the Criminal Code under her heading of Sentencing Principles -- Criminal Code of Canada. She remarked upon the need to send a message to those responsible for the care of vulnerable persons. The message was that they "cannot just hide in plain sight, as Meredith did, nor collapse within oneself, as Meredith did, without calling out for help". This message fails to give effect to the primacy of denunciation and deterrence as sentencing objectives.

55Parliament's choice to prioritize denunciation and deterrence as the sentencing objectives for offences involving the abuse of children reflects a reasoned response to the inherent wrongfulness of these offences, the enhanced moral blameworthiness, and the serious harm that these offences cause to the most vulnerable in our community. A sentence that expresses denunciation condemns the offender for encroaching on our society's basic code of values: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81. As an objective of sentencing, deterrence refers to the imposition of a sentence for the purpose of discouraging the offender and others from engaging in criminal conduct. When general deterrence is factored into the determination of a fit sentence, an offender is punished more severely. Not necessarily because she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity: R. v. P. (B.W.), 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2.

56Further, it does not appear that the sentencing judge considered the impact of Parliament's decision to increase the maximum sentence for failure to provide the necessaries of life from two to five years. [page137]

57Section 718.01 assigns primacy to the objectives of denunciation and deterrence when sentencing "for an offence that involved the abuse of a person under the age of eighteen years". The term "abuse" is not limited to sexual abuse, as in Friesen. No principled reason would exclude the offence of failing to provide the necessaries of life from its reach.

58In the result, I am satisfied that the sentencing judge's failure to give effect to the mandatory terms of s. 718.01 and the effect of Parliament's decision to increase the maximum sentence for the offence of failure to provide the necessaries of life had an impact on the sentence imposed and requires our intervention.

Ground #2: Alleged Error in Assessment of Mitigating Factors

59The sentencing judge identified several mitigating factors. They included

-- the absence of a criminal record;

-- a guilty plea;

-- the respondent's difficult life circumstances;

-- the respondent's participation in programming while in pre-detention custody;

-- the respondent's remorse and wishes to participate in counselling; and

-- the respondent's strong family and community support.

60In a portion of her reasons headed Other Factors, the sentencing judge criticized the CAS for failing to visit the respondent's home every 30 days; allowing the respondent to cancel five consecutive visits; failing to appreciate that the cancelled visits were a sign that things were not going well for the respondent and K.L.; and failing to exercise its authority to apprehend K.L. and take her to a hospital for medical care if required.

The Arguments on Appeal

61The Crown appellant says that the sentencing judge's errors in her consideration of the mitigating factors resulted in her failure to recognize the full extent of the respondent's moral culpability. This resulted in her assignment of greater weight to these factors than the predominant sentencing objectives required under s. 718.01.

62The Crown, relying on R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, contends that the failure of the CAS to fulfil its mandate is irrelevant to the moral culpability of the respondent. The offence of [page138] s. 215(2) measures the respondent's conduct against an objective standard. That another agency failed to fulfil its obligations does not mitigate the respondent's culpability or lessen her moral blameworthiness.

63Further, the appellant continues, the sentencing judge mischaracterized the respondent's parenting as a mitigating factor and attributed the death of the deceased to a brief "collapse" when the respondent was overwhelmed. Neither could be of service in mitigation. Viewed overall, the respondent's parenting revealed a pattern of neglect. She delegated care of K.L. to K.L.'s siblings, failed to take K.L. 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. Nor did K.L. die from a brief period of inattention -- she lost about one-third of her body weight over a period of five and one-half weeks.

64The respondent rejects the appellant's claims of error. It was open to the sentencing judge to consider the entire course of events in making her findings of fact. This involves characterizing the overall nature of the respondent's parenting of K.L., as well as the nature of her failures. The findings made by the sentencing judge were available on the evidence and unencumbered by any error of law or principle or misapprehensions of the evidence. They are entitled to deference in this court.

65According to the respondent, the appellant's references to Naglik, are misplaced. Naglik spoke to the mens rea for the failure to provide the necessaries of life, which is an objective standard. Nothing said about the nature of the fault element denies a place in sentencing to subjective or personal factors, even if they are not a defence to the charge.

66The respondent also takes issue with the admissibility of the proposed fresh evidence about her post-sentencing breaches of her probation order and her drug overdose. The evidence is not relevant to demonstrate an error in the sentencing judge's assessment of the respondent's rehabilitative potential. This is all the more so when the appellant does not seek to have the respondent reincarcerated should the appeal succeed. What is offered as fresh evidence is at best an incomplete account. The allegations of breach of probation are the subject of separate proceedings and are best left to be resolved in trial form.

The Governing Principles

67It is unnecessary to repeat what has already been said about the principles that govern our review of sentences alleged to be unfit. Four brief points will suffice. [page139]

68First, erroneous consideration of an aggravating or mitigating factor can justify appellate intervention only where the error has an impact on the sentence ultimately imposed: Lacasse, at paras. 43-44.

69Second, weighing or balancing factors can constitute an error in principle only if the sentencing judge exercises their discretion unreasonably by emphasizing one factor or not giving enough weight to another. If the error in principle had no impact on the sentence, the error in principle analysis terminates and appellate intervention is justified only if the sentence is demonstrably unfit: Friesen, at para. 26.

70Third, in sentencing offenders convicted of failing to provide necessaries under s. 215(2), the duration of the failure is a factor warranting consideration in an assessment of the gravity of the offence and the moral blameworthiness of the offender: R. v. Peterson (2005), 2005 CanLII 37972 (ON CA), 203 O.A.C. 364, at para. 56, leave to appeal refused [2005] S.C.C.A. No. 539.

71Finally, fresh evidence of breaches of court orders is relevant to show an offender's lack of respect for those orders, and thereby the conduct, character and attitude of the offender. All are relevant factors on sentence: Lacasse, at paras. 117-120.

The Principles Applied

72I would also give effect to this ground of appeal. In my respectful view, the sentencing judge erred in considering the failures of the CAS as a factor in determining a fit sentence for the respondent.

73As a parent, s. 215 of the Criminal Code imposed a legal duty on the respondent to provide the necessaries of life to K.L., her child under the age of 16 years. She failed to discharge that duty. That the CAS also failed to live up to its mandate is beside the point for the purposes of the respondent's criminal liability. Likewise, in connection with the gravity of offence, her degree of responsibility and her moral blameworthiness.

74In addition, the sentencing judge's characterization of the nature of the omissions of the CAS and the respondent lacks balance. It was the respondent, not the CAS, who cancelled the in-person visits claiming some or all of the members of her household were ill. Similarly, it was the respondent who did not take K.L. to her family doctor for 18 months or to a pediatrician at all. Finally, it was the respondent who ignored her friend's advice to take K.L. to the hospital days before she died. [page140]

Ground #3: Alleged Error in Application of the Fundamental Principle of Proportionality

75The sentencing judge set out the text of s. 718.1 -- the fundamental principle of proportionality -- in her reasons for sentence. She rejected the Crown's submission that a sentence of four years was appropriate on the ground that the respondent was not "a worst-case offender even though the victim was the most fragile of victims". She also rejected the defence position that a sentence of 30 months, less credit for predisposition custody was fit, "I find this position to be high in all the circumstances of this tragedy."

The Arguments on Appeal

76The appellant Crown begins with a reminder that the fundamental principle of proportionality has two aspects -- the gravity of the offence and the degree of responsibility of the offender. In both respects, the Crown contends, the sentencing judge erred.

77The Crown submits that the sentencing judge failed to accord sufficient weight in her proportionality analysis to the gravity of the respondent's offence. The offence involves an extremely vulnerable victim. Abuse of a person under 18 is deemed an aggravating circumstance under s. 718.2(a)(ii.1). Abuse of a position of trust is also an aggravating circumstance under s. 718.2(a)(ii). The failure involved the necessaries of food, water, and medical attention. The period during which the failure occurred was five and one-half weeks for food and water and about 18 months for medical attention. The offence had a significant impact on the victim -- her death -- another aggravating circumstance under s. 718.2 (a)(iii.1).

78Similarly, the Crown continues, the sentencing judge failed to accord sufficient weight to the degree of the respondent's responsibility in her proportionality analysis. The respondent was the sole principal who committed an offence against a vulnerable victim to whom she stood in a position of trust. Aware that K.L. required constant care, the respondent chose, on multiple occasions, to do nothing. She failed to take K.L. to a doctor and to arrange for a specialist despite medical advice to do so. She abdicated her obligation to care for K.L. to her other children and friends. This was no momentary lapse or "collapse" as the sentencing judge characterized it.

79The respondent acknowledges that the sentencing judge could have imposed a lengthier custodial sentence than 17 months. That she failed to do so, however, does not mean that she erred in her application of the fundamental principle of proportionality. The [page141] sentence imposed falls within the applicable range of sentence, thus it cannot be said to constitute an error in principle. The sentencing judge considered the gravity of the respondent's offence, her degree of responsibility, and her moral blameworthiness. That another judge might have weighed them differently, as this court might have done, does not permit appellate intervention.

The Governing Principles

80In addition to what has already been said about the principles that govern our review of the fitness of sentences imposed at trial, three brief points warrant mention.

(1) The place of proportionality in the imposition and review of sentences

81Section 718.1 codifies proportionality as the fundamental principle of sentencing. All sentencing starts with the principle that sentences must be proportionate to two elements:

-- the gravity of the offence; and

-- the degree of responsibility of the offender.

82The related principle of parity, that similar offenders who commit similar offences in similar circumstances should receive similar sentences, is an expression of proportionality: Friesen, at paras. 30-32.

(2) The role of maximum sentences

83Maximum sentences are linked to proportionality in that they help determine one of its essential components -- the gravity of the offence. The gravity of the offence contains both subjective and objective components. Subjective gravity relates to the circumstances surrounding the commission of the offence. The maximum sentence Parliament designates for an offence determines the objective gravity, that is to say, the relative severity, of that offence. A decision by Parliament to increase the maximum sentence for an offence demonstrates Parliament's desire that an offence be punished more harshly. This shifts the distribution of proportionate sentences for that offence: Friesen, at paras. 96-97; M. (C.A.), at para. 36; Lacasse, at para. 7.

84The final point relating to the role of maximum sentences is that the imposition of maximum sentences is not confined to cases involving worst offences committed by worst offenders. A maximum sentence is appropriate, but only appropriate, if the offence is of sufficient gravity and the offender displays sufficient [page142] blameworthiness: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1.

The Principles Applied

85I would also give effect to this ground of appeal. In my respectful view, the sentence imposed does not give effect to the fundamental sentencing principle of proportionality.

86The sentencing judge, who did not have the benefit of the reasons in Friesen, 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. Further, she appears to have diminished the subjective gravity of the offence by characterizing it as a momentary lapse under a confluence of unfortunate life events. Such a conclusion is not warranted upon a consideration of the evidence as a whole.

87In a similar way, the sentencing judge diluted the degree of responsibility of the respondent by her reference to the inadequacies of the CAS in discharging its supervisory role.

Ground #4: A Demonstrably Unfit Sentence

88The final ground of appeal alleges that the sentencing judge imposed a sentence that was demonstrably unfit.

The Reasons of the Sentencing Judge

89Counsel on both sides took the position that a penitentiary sentence was warranted, though they differed about its length and the amount of enhanced credit that the respondent should receive for her pre-disposition custody.

90The sentencing judge rejected the submissions of counsel on the basis that the respondent was "not a worst-case offender" and that the defence position was "high". She then said at para. 198, "Given that Meredith Lis has enhanced credit for pre-trial custody of 17 months her sentence will be one of time-served. I have considered the totality principle of sentencing in my final decision."

The Arguments on Appeal

91The Crown appellant says that a sentence of imprisonment of 17 months is a demonstrably unfit sentence for the respondent. A fit sentence required consideration of the intrinsic seriousness and harm caused by offences involving the abuse of children. This offence involved a protracted breach of trust in respect of an extremely vulnerable victim. Denunciation and deterrence were the primary sentencing objectives, not rehabilitation. A lengthy [page143] penitentiary sentence was required to give effect to Parliament's direction as expressed in the increase in the maximum sentence.

92The Crown contends that the principles announced by this court in the sexual abuse cases of R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.) and R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, should form part of a principled approach to sentencing in all cases of child neglect. This reflects a harm-based approach cognizant of the vulnerability of children, the high moral culpability of the offence, and of neglect as a form of child abuse requiring significant sanctions.

93The respondent says that the sentence imposed is not demonstrably unfit. It falls within the range of sentence applicable in such cases. True, the sentencing judge could have imposed a sentence of greater length, but her failure to do so does not mean that the sentence imposed is demonstrably unfit. This sentence is not so clearly unreasonable or inadequate as to amount to a substantial and marked departure from the norm.

94The respondent rejects the appellant's submission that the sentencing ranges prescribed in D. (D.) and Woodward for cases involving the sexual abuse of children should inform the range of sentence applicable in prosecutions for failure to provide necessaries of life to children of equivalent age. These are non-comparables for sentencing purposes. Some sexual offences carry a statutory minimum and maximum sentence that exceeds that applicable for failure to provide necessaries of life. What is more, the teachings of Friesen are limited to sexual offences.

The Governing Principles

95A sentence may be demonstrably unfit even if the sentencing judge has made no error in imposing it. The sentence is demonstrably unfit if it is "clearly unreasonable", "clearly inadequate", or because it represents "a substantial and marked departure". This reflects a very high threshold to meet before an appellate court can intervene after reviewing the fitness of a sentence: Lacasse, at para. 52.

96The inquiry involved when a sentence is demonstrably unfit must focus on the fundamental principle of sentencing -- proportionality -- codified in s. 718.1. A sentence is demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined not only on an individual basis, that is to say, in relation to the individual accused and her offence, but also by comparison with sentences imposed for similar offences committed by similar offenders in similar circumstances: Lacasse, at para. 53. [page144]

97A determination of fitness also requires that we consider the sentencing objectives of s. 718 and the other principles and factors set out in Part XXIII: Lacasse, at para. 54.

The Principles Applied

98In my respectful view, the sentence imposed in this case was demonstrably unfit. It represented a substantial and marked departure from the fundamental principle of proportionality.

99This sentence fails to respect the primacy of the sentencing objectives of denunciation and deterrence as required by s. 718.01 of the Criminal Code. It elevates the objective of rehabilitation to a place of prominence that is unwarranted, not only because of the mandate of s. 718.01, but also on a consideration of the evidence as a whole, including the fresh evidence. This offence was no momentary lapse in judgment, rather it extended over several weeks in connection with food and water and months for medical attention. The sentence also failed to reflect the consequences of the increased maximum punishment enacted by Parliament.

Conclusion

100In my respectful view, a fit sentence in the circumstances of the offence and the offender is three to three and one-half years in a penitentiary. Retaining the credit of 17 months for pre-disposition custody, this would leave a remanet of between 19 and 25 months.

Disposition

101For these reasons, I would grant leave to appeal, allow the appeal, and set aside the custodial portion of the sentence imposed at trial. In place of the one-day sentence imposed by the sentencing judge, I would impose a sentence of three years in a penitentiary on the count of failure to provide necessaries of life. From that sentence, I would deduct 17 months as credit for pre-disposition custody. This leaves a custodial remanet of 19 months. The Crown asks us not to reincarcerate the respondent. I would stay the execution of the 19-month remanet of the sentence. The probation order, ancillary orders imposed by the sentencing judge, and the concurrent sentences of one day on each of the remaining counts remain in force.