CITATION: R. v. Cox, 2011 ONCA 58
DATE: 20110121
DOCKET: C49004
COURT OF APPEAL FOR ONTARIO
Laskin, Armstrong and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Allison Cox
Appellant
Peter Copeland and Gavin MacKenzie, for the appellant
Karen Shai, for the respondent
Heard: November 30, 2010
On appeal from the conviction entered by Justice J.M. Fragomeni of the Superior Court of Justice, dated February 1, 2008.
H.S. LaForme J.A.:
INTRODUCTION
[1] The appellant, Allison Cox, is the adopted sister of Tiffany Pinckney. Throughout her life, Tiffany required assistance with day-to-day tasks such as getting dressed, preparing meals and bathing, and was unable to verbally communicate. From her birth, Tiffany was cared for by her mother, Margaret. Margaret remained her primary care giver until she passed away in January of 1998. Upon Margaret’s death, Allison Cox assumed the responsibility for 16 year old Tiffany’s care.
[2] On April 2, 2005, Tiffany was found dead in the basement of the home in which she lived with Ms. Cox and her family. Tiffany was 23 years old at the time.
[3] On February 1, 2008, Ms. Cox was convicted of manslaughter, criminal negligence causing death, and failure to provide the necessaries of life. She was sentenced to nine years imprisonment for manslaughter. The convictions for criminal negligence causing death and failure to provide the necessaries of life were stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[4] Ms. Cox appeals her convictions and seeks leave to appeal her sentence. Regarding conviction, she submits that the trial judge made errors at numerous points including: (i) in his assessment of the evidence of experts; (ii) in the sufficiency of his reasons in relation to his assessment of the expert evidence; and (iii) in his consideration of the mental elements of the offences.
[5] As for her sentence, Ms. Cox contends that the trial judge erred in two ways. First, he failed to give proper consideration to the principle of parity. Second, he imposed a sentence that was demonstrably unfit because it fell outside of the acceptable range.
[6] We did not call upon the Crown to respond to the conviction appeal as we could not find any merit to the grounds advanced. I will briefly explain our reasons for this view below. However, we did require a response from the Crown on the issue of sentence.
[7] I would grant Ms. Cox leave to appeal her sentence although, as I will explain, I would dismiss the appeal. In the result, I find there is no basis to interfere with either the convictions or sentence.
BACKGROUND
[8] At age two, Tiffany was diagnosed with an Autism Disorder and as profoundly developmentally delayed. As a result, Tiffany’s communication skills were severely delayed. She communicated mostly through gestures, pointing, and sounds, though she had some single words. At age 15, her language skills were less than those of a three year old child.
[9] Ms. Cox met Orlando Klass in 1995. He moved into the residence of Ms. Cox and her family and in 2002 Ms. Cox and Mr. Klass were married. In 2004 they, along with their three children and Tiffany, moved into a residence on Fairwind Drive. Tiffany lived in the basement.
[10] There was no washroom in the basement, nor was there any access to running water, or food. Tiffany’s bed consisted of a metal bed frame with two pieces of wood on top, covered with a deflated rubber air mattress which was blood-stained and dirty with fecal matter. There were no sheets and there was a filthy pillow with fecal matter on it.
[11] The rest of the house was fairly typical of a large suburban home, and relatively clean and tidy. However, there was a lock on the refrigerator in the kitchen. The door to the basement also had a lock on it which could only be locked or unlocked from the main floor.
[12] Ms. Cox was the primary caregiver for Tiffany. She stayed at home caring for Tiffany and her children. Ms. Cox failed to take Tiffany to a doctor in the five years prior to Tiffany’s death, she declined many efforts at assistance by community service providers, and she denied others who cared about Tiffany access to her.
[13] Mr. Klass worked full-time, as much as 70 hours a week. He would assist his wife to care for Tiffany after work and on the weekends.
[14] On April 2, 2005, Mr. Klass decided to go to the basement because Tiffany had not eaten all day. Tiffany was lying dead on an area rug on the cement floor. Mr. Klass nudged her with his foot, but she was non-responsive. He decided to wait until the appellant returned home from a birthday party a few hours later before he called emergency personnel.
[15] Tiffany was lying on the floor with fecal matter on her skin and clothing, and numerous cuts and bruises on her body. Fecal matter was visible all over the basement, including on the floors and walls. The basement was partially finished, but Tiffany was in an unfinished part with a filthy area rug, a TV, and dresser. According to testimony at trial, the smell of bleach was in the air and there were visible damp spots on the concrete floor. Mr. Klass had tried to clean the basement with a mop before he called 911.
[16] For most of her life, Tiffany was heavy-set. She overate and between the ages of 16 and 20 met the profile for obesity. During those years she was estimated to have weighed up to 200 pounds. Following her mother’s death, however, her weight declined and at the time of death she weighed 84.5 pounds. The normal weight for a young woman her height – 5 feet, 2 inches – was 125 pounds.
[17] Dr. Huyer, the Coroner, testified that it appeared Tiffany had been dead for some time prior to being discovered and that she had likely died a day earlier. The Crown’s medical experts testified that Tiffany died as a result of complications from malnourishment, while a defence expert expressed the opinion that the cause of death was inconclusive.
[18] Mr. Klass’ conduct constituted a marked departure from that expected of a reasonable person in the circumstances. He pled guilty to criminal negligence causing death at the earliest opportunity, acknowledging that Tiffany was not properly cared for or nourished, and that he did not take any steps to rectify the situation.
DISCUSSION
[19] Counsel for Ms. Cox in oral argument grouped the grounds of appeal into three categories. The first two deal with the trial judge’s assessment of the opinion evidence of the experts. They are related and can be assessed together under sufficiency of reasons. I would describe the two arguments this way: First, Ms. Cox submits that the reasons given by the trial judge regarding this evidence were insufficient. She says that in light of the different opinions expressed by the Crown experts, and what she says is the conflicting opinion of her expert, a more thorough analysis was required.
[20] Third, Ms. Cox contends that the trial judge failed to properly consider the mental elements of the offences she was charged with. In this regard, she says he failed to make essential findings in respect of those elements.
[21] Finally, Ms. Cox submits that the sentence of nine years offended the parity principle. Generally speaking, she says the offences by Mr. Klass and Ms. Cox involved the same victim in the same house under both of their care, and therefore each should be sentenced similarly. She also argues that her sentence was otherwise demonstrably unfit in that it fell outside the range of sentence for similar offences.
Issue 1: sufficiency of reasons
[22] Ms. Cox argues that the trial judge failed to properly address whether Tiffany’s weight loss was caused by: (i) the failure of Ms. Cox to make sufficient food available to her; (ii) Tiffany’s failure to consume food given to her, for example, as a result of a psychological condition; or (iii) a problem with the absorption of nutrients from food she had consumed, for example, due to disease or disorder.
[23] All three Crown experts testifying as to the cause of death were of the opinion that Tiffany’s death was a result of malnutrition – essentially, that she starved to death. There was no evidentiary foundation for any other cause of death.
[24] On both a functional and contextual analysis, the reasons for judgment of the trial judge were sufficient. The reasons clearly reveal that the trial judge properly reviewed all of the expert evidence. The trial judge ultimately accepted the Crown’s expert evidence of the pathologists regarding the cause of death. He was entitled to do so and no further analysis by him was required.
[25] Importantly, the forensic evidence was not what underpinned this case. The real issue was whether the starvation was caused by Ms. Cox’s neglect, not whether Tiffany starved to death.
[26] The forensic evidence did indeed demonstrate that Tiffany died of malnutrition; however, Ms. Cox’s guilt arose out of other evidence. This included Tiffany’s appalling living conditions and the complete absence of medical attention. That was the basis upon which the trial judge found Ms. Cox guilty. His reasons do not attract intervention from this court.
Issue 2: mental elements of the offences
[27] Here Ms. Cox argues that the trial judge failed to properly consider the mental elements of the offences and failed to make essential findings in respect of those elements. Regarding the offences Ms. Cox was charged with, she submits that the trial judge made the following errors:
(i) On making the determination of “failing to provide the necessaries of life”, he made no assessment of whether it was objectively foreseeable that Ms. Cox’s failure to provide these would lead to a risk to Tiffany’s life or permanent endangerment to her health.
(ii) On making the determination of “unlawful act manslaughter”, he never identified the “unlawful act” that was the foundation for this charge.
(iii) On finding “criminal negligence causing death”, he failed to make a finding that a marked and substantial departure from the standard of a reasonable person had been established.
[28] Although we did not call upon the Crown to respond to Ms. Cox’s arguments, I believe some general comment is in order. I propose to address each of these enumerated submissions in order.
(i) failing to provide the necessaries of life
[29] To prove the offence of failing to provide the necessaries of life, the Crown must show a marked departure from the conduct of a reasonable and prudent caregiver in circumstances where it is objectively foreseeable that the failure to provide necessaries of life would risk danger to life or permanent injury to the health of the person: Criminal Code, s.215(1)(c), s.215(2)(b), s.215(3)(a).
[30] The trial judge expressly found that the appellant failed to provide Tiffany with adequate care, including food, water, supervision, and medical attention. His reasons demonstrate that he was well aware of the mens rea requirements for this offence, including “objective foreseeability”. They include:
In all of the circumstances of this case, a reasonable and prudent caregiver would have foreseen the risk of bodily harm that was neither trivial nor transitory. … I am also satisfied beyond a reasonable doubt that the conduct of Allison Cox was a marked departure from the conduct of a reasonable and prudent caregiver in the circumstances.
[31] This passage demonstrate a clear finding that it was objectively foreseeable that Ms. Cox’s failure to provide the necessaries of life would lead to a risk to Tiffany’s life or injury to her health. As the Crown notes in its factum, “having found that the appellant essentially starved her sister to death over a prolonged period of time, ‘objective foreseeability’ was a virtually inevitable conclusion.” I agree.
(ii) unlawful act manslaughter
[32] Ms. Cox’s submission on whether the trial judge erred in convicting on manslaughter – in the circumstances of this case – depends upon her success in proving he also erred in his finding that she failed to provide the necessaries of life. The mens rea of unlawful act manslaughter is the mens rea of the underlying offence coupled with the objective foreseeability of the risk of bodily harm. This risk was neither trivial nor transitory. Here the trial judge found that the mens rea for failing to provide the necessaries of life had been proven.
[33] He then went on to hold, as cited above, that: “In all of the circumstances of this case, a reasonable and prudent caregiver would have foreseen the risk of bodily harm that was neither trivial nor transitory.” It could not be clearer: the unlawful act underlying manslaughter was the failure to provide the necessaries of life.
(iii) criminal negligence causing death
[34] On this issue, the essence of Ms. Cox’s assertion is that the trial judge erred in that he found only a “marked departure”, rather than a “marked and substantial” departure from the standard of a reasonable person. There is simply no merit to this submission.
[35] I appreciate that there are subtle differences between the offences of criminal negligence and failing to provide the necessaries of life. Both are measured objectively through the lens of a reasonably prudent person in the circumstances. For criminal negligence there must be conduct that constitutes a marked and substantial departure, whereas failing to provide the necessaries of life, requires that the conduct must only constitute a marked departure: see R. v. J.F., 2007 ONCA 500, at para. 47.
[36] However, having regard to the reasons for judgment read as a whole, and the factual findings of the trial judge, it is patently clear that he found the appellant’s conduct to be both a “marked” and a “substantial” departure from that of a reasonable person.
[37] On the specific facts of this case, where the Crown relied on the same conduct to support both charges against Ms. Cox, the distinctions between these offences are distinctions without a difference. In J.F., at para. 50, MacFarland J.A., took a similar approach, finding that where, on the facts, the wrong relied on by the Crown supported both charges, the distinctions between the offences were without a difference. The findings of fact in our case include that:
Tiffany died of malnutrition caused by starvation, which was constant over a long period of time;
Tiffany was not taken to a doctor for the five years before her death;
Tiffany lived in conditions that were appalling and she was covered in filth and excrement when she died;
There was a lock on the refrigerator in the kitchen and the door to the basement had a lock on it that could only be unlocked from the main floor. There was no access to food, water, or a washroom in the basement;
Ms. Cox rebuffed virtually all efforts to assist Tiffany in the last three years of Tiffany’s life.
[38] In any case, having found that Ms. Cox had the necessary mens rea for manslaughter, the mens rea for criminal negligence causing death was also essentially made out. I would, therefore, dismiss this ground of appeal.
Issue 3: Sentence
[39] Unless Ms. Cox can demonstrate that the trial judge committed an error in principle, this court will not intervene in altering her sentence. An error in principle includes a failure to consider a relevant factor, an overemphasis of an appropriate factor, or that the sentence is demonstrably unfit. It is well established that an appellate court owes great deference to trial judges who face the difficult task of deciding sentencing issues on an almost daily basis: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14.
[40] This is the significant hurdle which Ms. Cox must overcome. I find that she has not done so.
[41] As noted at the outset, Ms. Cox contends that she has met the requisite standard for intervention by this court in respect of her nine year prison sentence. Indeed, her argument is that the trial judge is not entitled to deference from this court because: (i) he failed to give proper consideration to the principle of parity; and (ii) he imposed a sentence that was outside the acceptable range, which makes it demonstrably unfit.
Parity
[42] Ms. Cox notes that Mr. Klass, the appellant’s husband and former co-accused, pled guilty to criminal negligence causing death in Tiffany’s case and received a conditional sentence of two years less a day to be followed by probation. She argues that her sentence when compared to that of her husband’s leaves her with a sense of injustice or grievance as a result of their disparity.
[43] Ms. Cox argues there are similarities between her and Mr. Klass’s treatment and responsibility towards Tiffany. She notes that their offences involved the same victim in the same house under the care of both. She adds that both she and Mr. Klass were in loco parentis.
[44] Ms. Cox accepts that her heightened role as Tiffany’s primary caregiver and the absence of a guilty plea warranted a more severe sentence for her. Nevertheless, she says that her nine-year sentence and Mr. Klass’ conditional sentence are not “understandable sentences when examined together.” She relies on R. v. Issa (1992), 57 O.A.C. 253 (C.A.), at para. 9, for this submission.
[45] The principle of parity mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b). However, sentencing is an individualized process that by its very nature means that sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity, where warranted by the circumstances, because of the principle of proportionality: L.M. at para. 36.
[46] This court will only interfere with the sentence imposed by a trial judge where the sentence is one that demonstrates a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. As this court has held, the principle of parity “does not require equal sentences, but only understandable sentences when examined together”: Issa at para. 9.
[47] Parity is only one of a number of important sentencing principles. Other important principles include deterrence and denunciation, and the principle that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.
[48] In this case, the trial judge made specific reference to s. 718.2(b) of the Criminal Code. He considered the differing positions of the Crown and defence on the issue of parity and, he considered the reasons of Durno J. in the sentencing of Mr. Klass. He ultimately concluded that "[t]he defence position on the issue of parity ignores the significant differences in the circumstances of Orlando Klass and Allison Cox." His reasons for the disparity in sentences do not attract interference by this court. While he does not list each difference specifically, they include:
Ms. Cox was Tiffany's primary caregiver. She was her legal guardian and she bore the legal and moral responsibility for sustaining her life. Mr. Klass' role was significantly less.
Mr. Klass was working outside the home for up to 70 hours a week. His guilty plea was based on his failure to step in when he should have. His role in Tiffany’s death was passive.
Mr. Klass pled guilty to criminal negligence causing death at the earliest possible opportunity and waived his preliminary inquiry. The appellant, on the other hand, had a preliminary inquiry, after which the charges were upgraded to include manslaughter.
By pleading guilty at the earliest opportunity, Mr. Klass accepted responsibility for his failure to act. Throughout the criminal proceedings, and in the pre‑sentence report, Ms. Cox expressed neither remorse for Tiffany’s death nor any insight into her failure as a caregiver.
Ms. Cox was convicted of manslaughter, while Mr. Klass pled guilty to criminal negligence causing death. The manslaughter conviction reflects Ms. Cox’s increased culpability as it includes a finding that she effectively caused the death.
[49] The disparity in the sentences imposed on Ms. Cox and Mr. Klass is entirely reconcilable. The differences are completely understandable when examined together. The trial judge’s decision on parity shows no error and is entitled to deference.
Fitness
[50] On this issue Ms. Cox asserts that the sentence imposed fell outside the range of sentence for similar offences. In her opinion the sentence should have been between five and seven years, with her sentence being five. She provided this court with cases – especially that of R. v. Noseworthy, 2007 CarswellsOnt 9604 (S.C.J.) – which she says reflect her position.
[51] While the cases are of some assistance, their assistance is limited. As I observed above, sentencing is an individualized process. Each case will ultimately be decided on its unique differences. For example, in Noseworthy the offender received a seven year sentence for similar conduct as that in our case in connection with his elderly mother. However, this was after a guilty plea and expressing remorse. As well, in our case there are other differences:
Ms. Cox was responsible for providing her sister with the basic necessities of life. Tiffany was an extremely vulnerable individual. She was developmentally delayed and severely autistic. She functioned at the cognitive level of a three year old child.
Ms. Cox was regularly offered assistance by others, which she rebuffed. Instead, she locked her sister in the basement.
The starvation was continuous and took place over a lengthy period of time. As the trial judge said, "[s]he endured a slow and no doubt painful lonely descent into death. … I must say that the circumstances of this death are among the worst I have experienced as a trial judge."
[52] Ms. Cox also does not appear to suffer from any intellectual or psychological deficit that affected her capacity to care for Tiffany or know what she was doing. As the Crown correctly notes, the sole mitigating factor in this case is Ms. Cox’s lack of a criminal record.
[53] As the trial judge accurately identified, general deterrence and denunciation are the paramount sentencing principles in this case. He imposed a sentence that he believed properly reflects society's respect for human life and provides special protection to those most vulnerable to abuse who are unable to speak for themselves. The sentence he imposed, after a full consideration of the offender and the offence, was manifestly fit.
DISPOSITION
[54] For the reasons herein, I would dismiss the appeal against conviction. On the issue of sentence, I would grant leave to appeal, but I would also dismiss it.
RELEASED:
“JAN 21 2011” “H.S. LaForme J.A.”
“JL” “I agree John Laskin J.A.”
“I agree Robert P. Armstrong J.A.”