Court of Appeal for Ontario

Date: 2017-10-18 Docket: C62914

Judges: Pepall, Benotto and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Constantinus Dedeckere Appellant

Counsel

Apple Newton-Smith, for the appellant

Rebecca DeFilippis, for the respondent

Heard: October 11, 2017

On appeal from the sentence imposed on October 12, 2016 by Justice John S. Skowronski of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant attempted to commit suicide by driving his vehicle into a hydro pole on a rural road. As a result of the collision, debris struck the victim, seriously injuring her. At the time, the appellant was an in-patient on temporary leave from the Mental Health Care facility at Parkwood Hospital.

[2] The victim was badly injured. Due to the debris, she had a hole in her skull that required surgery and time in rehabilitation. Fourteen victim impact statements were filed at the sentencing hearing, including one from the victim.

[3] The appellant pled guilty to a charge of criminal negligence causing bodily harm for which he was sentenced to two years' imprisonment in a penitentiary followed by three years' probation and a six-year driving prohibition.

[4] He seeks leave to appeal his sentence. He submits that the sentencing judge erred in sentencing the appellant on the basis of denunciation and deterrence to the exclusion of all other principles of sentencing and failed to consider the principles of restraint and proportionality. Moreover, he submits that the sentencing judge erred by failing to give adequate meaningful consideration to the appellant's psychiatric issues and rehabilitation. The appellant argues that the sentence imposed was demonstrably unfit. He also seeks leave to file fresh evidence showing that he has been diagnosed with kidney cancer.

[5] For the following reasons, we granted leave to appeal sentence and allowed the sentence appeal.

Background Facts

[6] The appellant was 58 years old at the time of the incident, was not impaired by alcohol or drugs, and had no criminal record. There was no dispute that his sole intention was to kill himself. He had a lengthy history of mental illness and failed suicide attempts. He was first diagnosed with bipolar affective disorder in 1980 following a manic episode. He required multiple hospitalizations in 1980, 1981, 1994, 1995, and 2014 due to depression. Approximately two years before the incident, the appellant was taken off his medication as he had developed a toxicity to it. His condition gradually deteriorated, leading to his hospitalization in early 2014. He was subsequently admitted to the mental health unit of the St. Thomas Elgin General Hospital a number of times that year. By December 2014, he had a regular treating psychiatrist and later was an in-patient at the Parkwood Institute Mental Health Care facility.

[7] The appellant was called to the bar in 1984 but ceased to practice in 2014. As mentioned, on the day of the incident, he was on a day pass from Parkwood. He had also received a letter from the Law Society of Upper Canada reporting that he would be disbarred. This prompted his suicide attempt.

[8] After the incident, he was released on bail and returned to the lockdown unit at Parkwood. In 2016, he was discharged to his home. As a condition of his bail, he was not permitted to leave his home without either a member of his family or the Parkwood team. His time on bail was without incident. He is genuinely remorseful for what he did. He has a loving and supportive family including his wife, four children, and two grandchildren.

The Sentence

[9] Before the sentencing judge, the Crown sought a custodial sentence of two to two-and-a-half years and the defence sought a suspended sentence and three years' probation.

[10] In sentencing the appellant to two years in penitentiary, the sentencing judge identified certain mitigating factors: the appellant's lack of a criminal record, his guilty plea, his genuine remorse, and his supportive family and friends. The sentencing judge identified the only aggravating factor as "the offence itself", including the significant impact it had on the victim. He also considered the powerful victim impact statements.

[11] The sentencing judge referred to the principles of sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, stating that deterrence and denunciation should be treated as the primary objectives in sentencing for the offence of criminal negligence causing bodily harm, and that "both general and specific deterrence need[ed] to be addressed". With respect to the former he stated that "it is important to dissuade those who may be self-destructive from acting on such ideations to their detriment and from exposing the innocent bystanders, as it were, to possible physical danger." As for specific deterrence, he noted that the appellant did not adequately examine or even consider the impact his suicide plan could have had on others on the roadway. The sentencing judge therefore concluded that probation would not be adequate to achieve the necessary level of deterrence and denunciation.

Analysis

[12] We recognize that absent an error in law or an error in principle that has an impact on the sentence, or the imposition of a demonstrably unfit sentence, deference is owed to the decision of a sentencing judge: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 64, at para. 11. However, for the following reasons, such deference is not justified in the circumstances of this case.

[13] Although the sentencing judge mentioned rehabilitation as a principle of sentencing, he sentenced the appellant on the basis of deterrence and denunciation to the exclusion of all other relevant sentencing principles. He failed to consider restraint and proportionality, and did not give meaningful consideration in his analysis to the appellant's mental health and rehabilitation. In essence, the sentencing judge determined that specific deterrence could only be met by a custodial term due to the appellant being chronically suicidal.

[14] Specific deterrence has little relevance in the context of suicide and general deterrence is a factor of decreased significance when sentencing those whose behaviour is driven by mental illness. As explained by Gillese J.A. in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38, when "mental health problems play a central role in the commission of the offence … deterrence and punishment assume less importance." Here, the Crown acknowledged that the appellant's mental illness played a central role in the offence.

[15] Moreover, the sentencing judge failed to consider that the moral blameworthiness of the appellant was less than that of someone who had set out to do such harm to another. The sentencing judge attached moral blameworthiness to the appellant's desire to take his own life rather than considering the impact that the appellant's bipolar disorder and depression had on his judgment.

[16] The sentencing judge should have considered the appellant's serious and longstanding mental health issues as a central component of the appellant's circumstances. Instead, the sentencing judge focused on the appellant's "chronically suicidal behaviours" and continued "struggles with his mental illness" as a basis for incarceration.

[17] Clearly these errors impacted the two-year penitentiary sentence that the sentencing judge imposed, a sentence that was unfit in the circumstances.

[18] Accordingly, it falls to this court to sentence the appellant anew.

[19] The appellant is over 60 years of age and has suffered from mental illness for many years. He is very remorseful and did not intend to harm the victim. No alcohol or drugs were involved. This was his first criminal offense. He has supportive family and friends. His period on bail was without incident.

[20] The victim impact statements are moving and profound. The victim was seriously injured and negatively affected by the appellant's conduct.

[21] The appellant has been incarcerated for one year. Without minimizing the seriousness of the offence and the impact on the victim, a sentence of time served and two years' probation is fit and adequate to reflect the principles of sentencing including proportionality. The ancillary orders will remain the same.

[22] In light of this disposition, it is unnecessary to address the motion to admit fresh evidence.

[23] In conclusion, leave to appeal sentence is granted. The sentence appeal is allowed and the sentence is varied from two years' imprisonment to time served and two years' probation, all other terms to remain the same.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.

[1] It does not appear that this case was brought to the sentencing judge's attention.