DATE: 20051213

DOCKET: C43462

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – CLARA Da SILVA (Respondent)

BEFORE:

ROSENBERG, GOUDGE and SIMMONS JJ.A.

COUNSEL:

Tina Yuen

for the appellant

Joseph Wilkinson

for the respondent

HEARD:

November 28, 2005

On appeal from sentence imposed by Justice David Watt of the Superior Court of Justice dated April 11, 2005.

E N D O R S E M E N T

[1] This is a tragic and difficult case. The respondent pleaded guilty to manslaughter as the result of the death of her two-year-old child. The respondent, a young single mother, abandoned the child for various periods of time over four days, the last time for more than 24 hours, while she indulged herself with Salsa dancing and pursued her new boyfriend. She left her daughter alone in her crib in their apartment with virtually no food or liquids during a July heat wave and the child died of dehydration. The respondent offered no explanation for this behaviour. As Watt J. said, the respondent “venerated self-interest and abdicated parental responsibility when required to choose”. He imposed a sentence of three years in the penitentiary.

[2] The Crown appeals and argues that the trial judge made several errors in principle in that he gave undue emphasis to rehabilitation and failed to properly apply the fundamental principle of proportionality. The Crown also submits that in any event the sentence was manifestly inadequate.

[3] The trial judge gave lengthy, thorough and comprehensive reasons. He referred to all of the proper principles and we see no error in principle in his treatment of the sentencing objectives including rehabilitation, deterrence and denunciation. The Crown appeal really comes down to the issue of whether the sentence was manifestly inadequate and was therefore not proportionate to the gravity of the offence and the degree of responsibility of the offender.

[4] The appeal turns largely on the Crown submission that the sentence did not reflect the moral blameworthiness of the respondent. Crown counsel argues that the trial judge found a high degree of moral blameworthiness but then imposed a sentence that failed to reflect that finding. That submission rests in part on para. 54 of the trial judge’s reasons:

Clara Da Silva unlawfully caused the death of her daughter, Adrianna, who was only about two months beyond her second birthday. She did so by failing to provide her with the necessaries of life. For all intents and purposes, Clara Da Silva abandoned Adrianna, in stifling heat, with a supply of fluids that Ms. Da Silva well knew were grossly inadequate for her needs. At first for over seven hours. And then for three or four. And finally, for more than an entire day.

[5] Ms. Yuen submits that in this passage the trial judge found that this was an aggravated manslaughter just short of murder. In our view, the passage and the reasons as a whole are not susceptible of this interpretation. In this passage, the trial judge found that this was a very serious example of criminal negligence in failing to provide the necessaries to this vulnerable child. Although clearly alive to the Crown’s position, the trial judge did not find that the respondent knew that her conduct would lead to the child’s death. It is implicit in his reasons that he accepted the defence position, which he summarized at para. 83 of his reasons:

The offence of which Ms. Da Silva has been convicted, on her own admission, does not require proof of actual foresight of death from prohibited conduct and, at all events, there was no such proof here. And that is a factor to be taken into account in assessing the degree of Clara Da Silva’s responsibility and her moral culpability for this crime.

[6] We do not accept the Crown’s submission that the moral culpability was enhanced because of a pattern of extreme neglect. The facts indicate that in the weeks prior to the death the respondent had not been adequately caring for the child in the sense that she had obviously allowed a severe and very painful case of diaper rash (akin to a second degree burn) to go unattended. However, the trial judge found the following at para. 56 of his reasons:

This offence is not the inevitable result of a long-established pattern of physical assault or abuse. There is, nonetheless, a nascent habit of neglect, a repeated failure to ensure proper care for a child with somewhat depleted natural resources and limited reserves.

[7] The question then is whether on the findings of fact by the trial judge, this sentence was manifestly inadequate. As the trial judge said, the offence was the result of an unconscionable breach of trust and any reasonable person would recognize that some significant adverse consequence would likely result from this unthinkable abandonment. The respondent, while relatively youthful, appears to be of normal intelligence. She was employed and had a job of some responsibility. There was no psychiatric evidence to explain her behaviour during the last four days of her child’s life. The only explanation is that offered by the trial judge at para. 69 of his reasons; that the respondent “either lacked the most fundamental parenting skills or was, at the very least, utterly indifferent towards them in the event of a collision with her own self-interest.”

[8] As we have said, the sentencing decision is carefully and fully reasoned. It reflects the extremely difficult task of balancing the various relevant factors that faced this very experienced trial judge. It followed a full sentencing hearing in which he had the advantage of hearing about and observing the respondent. As a result, as the Supreme Court of Canada has said, the sentence imposed must be given deference in this court. Appellate courts “do not have free reign to modify sentence orders simply because they would themselves have imposed a different sentence”: R. v. Stone (1999), 134 C.C.C. (3d) 353 (S.C.C.) at para. 230.

[9] Our task is to determine whether the trial judge’s assessment of the respondent’s moral culpability was unreasonable such that the sentence imposed was manifestly unfit, bearing in mind that it is for the sentencing judge to consider all the circumstances of the offence: see R. v. Stone at para. 234.

[10] We agree with the Crown that this is a serious offence even though the death was not caused by prolonged abuse or physical assaults. It exemplifies a shocking and prolonged abdication of parental responsibility that is almost incomprehensible. The trial judge would certainly have been entitled to impose a higher penitentiary sentence.

[11] However there are several aspects of the trial judge’s reasons that must be noted. He made no finding that the respondent knew that her daughter’s death would result or was wilfully blind to that grim fact. He found that there was no pattern of prior abuse nor physical infliction of injury. And he found that the only explanation he could discern was that the respondent either lacked the most fundamental parenting skills or was, at the very least, utterly indifferent to them. He did not explain her conduct on the basis of any malevolence towards the infant.

[12] Nonetheless, this remains an abhorrent act, and in our view the sentence is at the very bottom of the range of what would constitute a fit sentence. However given the findings of the trial judge and the deference that must be accorded to his decision, we are not entitled to intervene. The Crown has not shown that the sentence is clearly unreasonable.

[13] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”