Court of Appeal for Ontario

Date: 2002-09-09 Docket: C33188

Between:

Her Majesty the Queen, Respondent

• and -

Maria Medeiros and Mario Medeiros, Appellants

Before: Labrosse, Weiler and Charron JJ.A.

Counsel: Susan Ficek, for the respondent Allan D. Gold, for the appellants

Heard: September 5, 2002

On appeal from the conviction imposed by Justice P. Reinhardt dated April 26, 1999.

By the Court:

[1] On November 15, 1997, the appellants left their five children in the care of the oldest one, aged ten years, while they went out to visit relatives. While they were away, the youngest, a six month old infant, swallowed a one inch metal screw and choked to death. The other children left in the care of the 10 year old were nine, four and two years old.

[2] The appellants pleaded guilty to criminal negligence causing death and abandoning four children under the age of ten years. They were sentenced to six months’ imprisonment concurrent on each count. The appellants also pleaded guilty to fraud in respect of social assistance benefits paid to them during a period of time when they were not eligible to receive benefits. They were sentenced to 90 days’ imprisonment consecutive to the other sentences, to be followed by two years’ probation. They were also ordered to make restitution in the amount of $10,000.

[3] The appellants appeal against conviction and seek leave to appeal against sentence.

[4] The appellants seek to introduce fresh evidence on their appeal against conviction. The appellants now contend that they did not leave their children alone but, rather, left them in the custody of Maria Madeiros’ adult sister and her husband. This contention is contradicted by the sister in question and her husband and by another member of the family. It is also contrary to the position advanced by the appellants themselves throughout the criminal proceedings and the CAS protection proceedings. The appellants would have this court believe that they were prepared not only to go to jail but to lose their children rather than reveal the defence they now advance four years later. The record clearly shows that the appellants are prepared to change their evidence to suit their purpose.

[5] In our view, the appellants’ evidence is not reasonably capable of belief. The evidence tendered on behalf of the children can hardly be viewed as independent and does not add to the overall credibility of the fresh evidence. Likewise, the lawyer’s evidence is equivocal and does not assist the appellants.

[6] This evidence does not meet the test for admissibility as fresh evidence. The application to introduce fresh evidence is dismissed.

[7] The appellants further argue that the facts do not support a conviction on the offences of criminal negligence and abandoning the children because they were not left alone but in the care of the 10 year old child. They argue that the facts as admitted on the plea of guilty cannot legally support the convictions without additional proof that the 10 year old was not competent to take care of the children and that the appellants were aware of that fact. The appellants submit that it was incumbent on the sentencing judge to inquire further into the matter before accepting the guilty plea.

[8] This ground of appeal is totally devoid of merit. The appellants were represented by counsel. They pleaded guilty to the two offences involving their children. It was entirely open to the sentencing judge to accept the guilty plea as an admission of the essential elements of each offence. Further, the admitted facts did not call for further inquiry and entirely supported the convictions.

[9] The appeal against conviction is dismissed.

[10] With respect to sentence, the appellants submit that the sentencing judge erred in failing to impose a conditional sentence. Crown counsel concedes that the sentencing judge erred in principle in finding that a conditional sentence was unavailable in any case of fraud involving a breach of trust. Given this error in principle with respect to the sentence imposed on the fraud offence and the passage of time since the imposition of the sentence, Crown counsel does not oppose the position advanced by the appellants.

[11] We agree with the joint submission of counsel and find that it is appropriate at this time to impose a conditional sentence of nine months on the conditions agreed upon by counsel. The appeal against sentence is allowed accordingly.

Released: September 9, 2002

"Jean-Marc Labrosse J.A." "Karen M. Weiler J.A." "Louise Charron J.A."