Court of Appeal for Ontario
Date: September 14, 2018
Docket: C61099
Justices: Sharpe, Brown and Paciocco JJ.A.
Between
Her Majesty the Queen
Respondent
and
Kevin Peter Plein
Appellant
Counsel:
Brad Greenshields, for the appellant
Peter Fraser, for the respondent
Heard: June 26, 2018
On appeal from the convictions entered on June 13, 2014 and the sentence imposed on January 21, 2015 by Justice Hugh K. O'Connell of the Superior Court of Justice, sitting without a jury.
Paciocco J.A.
Overview
[1] After his father died in 2006, the appellant, Kevin Plein, became the caregiver for his mother, Erika Plein, and his sister, Cindy Plein. Both women were blind and cognitively impaired. He lived alone with them and cared for them for several years.
[2] But when Cindy suffered serious burns in early June 2009 after her nightgown caught fire on the stove, Mr. Plein did not seek medical help for her. On June 12, 2009, after she languished in her room for several days, Cindy, then 48 years of age, suffered a horrific death from septic shock resulting from her infected wounds. It was only when she collapsed as she was dying that Mr. Plein called 911.
[3] On April 10, 2010, Mr. Plein called 911 again when his 72 year old mother, Erika, also collapsed and then died from starvation. She was 69 pounds at the time, and "catechetic", or suffering from a severe form of malnutrition. The emergency room doctor had never seen anything like it, other than in concentration camp pictures.
[4] After his mother's death, Mr. Plein was charged with criminal offences arising from the deaths of both women.
[5] At trial, Mr. Plein faced three charges relating to Cindy, each based on the theory that he had failed to discharge his legal duty to provide her with medical care after her burn that if not received would endanger her life. Those charges were: (1) failing to provide the necessaries of life, contrary to Criminal Code, s. 215(1)(c); (2) criminal negligence causing death, contrary to Criminal Code, s. 220; and (3) unlawful act manslaughter, contrary to Criminal Code, s. 236.
[6] Mr. Plein faced the same three charges with respect to the death of his mother, Erika, but those charges were based on his legal duty to provide Erika with nutritional sustenance that if not received would endanger her life.
[7] Clear evidence was presented at trial that Mr. Plein had assumed care of the two women, and that they were incapable of caring for themselves. It was not contested, therefore, that Mr. Plein had a legal duty to provide them with the necessaries of life.
[8] The evidence was overwhelming that the two women required care that they were unable to provide themselves: medical care in Cindy's case, and nutritional care for Erika. Photographs of their conditions, and the conditions in which they were living are graphic and disturbing. Their need for assistance would have been obvious to any reasonable person.
[9] Proof that Cindy died because of the absence of medical attention, and Erika, from the lack of nutrition, was also decisive.
[10] Mr. Plein did not contest any of this. He defended against the charges by arguing that he was providing reasonable care for the women when they died, providing first aid to Cindy, and supplying food to Erika.
[11] Mr. Plein presented no expert evidence relating to his cognitive capacity to discharge his legal obligations at trial, but lay witnesses offered evidence suggesting that his intellectual abilities are limited.
[12] After a Superior Court judge alone trial, Mr. Plein was found guilty of all three charges relating to Erika's death. He was found not guilty of manslaughter in Cindy's death, but guilty of the other two charges.
[13] Because of double-jeopardy concerns, Mr. Plein was sentenced only for the manslaughter of Erika Plein, receiving a 10 year sentence, and for criminal negligence in the death of Cindy Plein, receiving an eight year consecutive sentence.
[14] Mr. Plein appeals all of his convictions and sentence.
[15] For the reasons that follow, I would dismiss Mr. Plein's conviction appeal. I would, however, grant leave to appeal his sentence and allow his sentence appeal. I would reduce his sentence to a global sentence of 14 years, minus time served credited at 1.5:1, for a net sentence of 10 years' and 2 months' incarceration.
Issues
[16] Mr. Plein contends that the trial judge erred in convicting him of criminal negligence in Cindy's death. He says that this verdict is inconsistent with his acquittal of manslaughter in respect of her death, since both charges carry the same elements and both charges were prosecuted using the same theory. He argues that the criminal negligence conviction must therefore be set aside.
[17] The Crown concedes that the verdicts are inconsistent, but argues that the criminal negligence conviction should nonetheless be upheld since the manslaughter acquittal arose from a clear legal error and the criminal negligence conviction is nevertheless reasonable and supported by the evidence.
[18] Mr. Plein also seeks leave to admit fresh expert evidence relating to his limited cognitive abilities and his neuropsychological condition. He wants to rely on the fresh evidence to argue that a new trial should be held on the remaining charges. He claims that this evidence is capable of raising a reasonable doubt about his capacity to discharge the legal duties that ground his convictions.
[19] The Crown contests both the admissibility and the sufficiency of this fresh evidence to warrant a new trial.
[20] Mr. Plein also appeals his sentence. He argues that: (1) the trial judge did not give proper effect to the principle of totality in arriving at his global sentence; (2) if admitted, the fresh evidence about his cognitive abilities shows that his sentence is disproportionate given his moral blameworthiness; and (3) in any event, the trial judge erred by relying on an unconstitutional provision, Criminal Code, s. 719(3.1), to deny him enhanced credit for presentence custody served after he breached his bail conditions.
[21] The Crown concedes that the sentence appeal must be allowed on ground (3). When the trial judge denied enhanced credit, he did not have the benefit of the decision in R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180 that held s. 719(3.1) to be unconstitutional and therefore of no effect. Mr. Plein should have received additional presentence credit. The Crown opposes the other grounds for the sentence appeal.
[22] The issues requiring resolution can therefore be stated as follows:
A. Should the inconsistent criminal negligence causing death verdict relating to Cindy be set aside and an acquittal entered?
B. Should the proposed fresh evidence relating to Mr. Plein's cognitive and neuropsychological abilities be admitted on the issue of Mr. Plein's capacity to commit the offences charged, and if so, should a new trial on the remaining charges be ordered?
C. Should the proposed fresh evidence relating to Mr. Plein's cognitive abilities be admitted on the issue of the fitness of his sentence, and if so, should the sentence imposed be set aside?
D. Did the trial judge err in applying the principle of totality?
Analysis
A. The Inconsistent Verdict Appeal
[23] In my view, the conviction for criminal negligence causing death relating to Cindy should not be set aside. The criminal negligence causing death conviction is inconsistent with the manslaughter acquittal, but the criminal negligence causing death conviction is reasonable, supported by the evidence, and is lawfully correct based on facts properly found by the trial judge. In contrast, the manslaughter acquittal arose from a manifest legal error. In my view, the law does not require an otherwise unassailable conviction to be set aside in a judge alone trial because an inconsistent, demonstrably unsound acquittal has been entered on a functionally identical charge in the same proceedings.
(1) The verdicts are inconsistent
[24] The parties agree that, in this case, the criminal negligence causing death charge and the manslaughter charge are indistinguishable. They agree that the acquittal on one and conviction on the other means that the verdicts are inconsistent. That proposition is correct, but not immediately obvious.
[25] As McLachlin J. (as she then was) said in R. v. Creighton, [1993] 3 S.C.R. 3, p. 42, the offence of manslaughter "covers a wide variety of circumstances." It encompasses all forms of culpable homicide other than murder or infanticide: Criminal Code, s. 234. "Culpable homicide", as defined in Criminal Code, s. 222(5), includes death caused "(a) by means of an unlawful act" and "(b) by criminal negligence".
[26] Had Mr. Plein been prosecuted for criminal negligence based manslaughter, the complete overlap with the criminal negligence causing death charge would have been patent. As Trotter J. (as he then was) observed in R. v. Aleksev, 2016 ONSC 1834, [2016] O.J. No. 1962, at para. 57, "manslaughter based on criminal negligence is indistinguishable from criminal negligence causing death."
[27] But Mr. Plein was not prosecuted for manslaughter based on criminal negligence. He was prosecuted instead for unlawful act manslaughter.
[28] Still, the circle is closed because both the criminal negligence causing death charge, and the unlawful act manslaughter charge, are based on the same underlying unlawful omission. And the elements of the two offences, while articulated differently, are materially the same. Moreover, close examination of the trial judge's reasons for judgment and court record provides no rational or logical basis that can reconcile the verdicts: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 8; and R. v. McShannock, 55 C.C.C. (2d) 53 (Ont. C.A.), [1980] O.J. No. 128, at pp. 55-56.
[29] To succeed in this criminal negligence causing death prosecution, the Crown had to prove beyond a reasonable doubt that:
Mr. Plein engaged in an unlawful omission, namely, failing to discharge his legal duty to provide Cindy with necessary medical care after she was badly burned;
this unlawful omission showed a wanton and reckless disregard for Cindy's life or safety, in the sense that it was a "marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk" to Cindy's life or safety: R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61; and
the unlawful omission caused Cindy's death.
[30] To succeed in the unlawful act manslaughter prosecution, the Crown had to prove beyond a reasonable doubt that:
Mr. Plein engaged in an unlawful omission, namely, failing to discharge his legal duty to provide Cindy with necessary medical care after she was badly burned;
this unlawful omission was inherently dangerous, in that it presented an objectively foreseeable risk of causing injury to Cindy: Creighton, at pp. 42-45;
the unlawful omission was a marked departure from the standards of a reasonable person in all of the circumstances: Creighton, at p. 43; and
the unlawful omission caused Cindy's death.
[31] It is readily apparent that Mr. Plein's manslaughter acquittal cannot be logically and rationally reconciled with his conviction of criminal negligence causing death. The verdicts are inconsistent.
(2) The source of the inconsistency
[32] While the verdicts in this case cannot be logically and rationally reconciled, the inconsistency between them can be evidently explained from the reasons for judgment in this judge alone trial. The trial judge simply did not appreciate that both charges required consistent outcomes because he misunderstood and misapplied the law relating to the manslaughter offence. Thus these inconsistent verdicts do not emanate from some irreconcilable or uncertain findings of fact. Rather, the explanation for the inconsistent verdicts is that the trial judge erred in law in acquitting Mr. Plein of the manslaughter charge involving Cindy Plein.
[33] This is the explanation the trial judge gave:
In relation to manslaughter on Cindy Plein, on the evidence, I was not satisfied that the actions of Mr. Kevin Plein should rise to the moral culpability of manslaughter.
I was, I might say […] perhaps overly generous in my arrival of an acquittal on that count but I found that the causation issue was such that I could not be satisfied beyond a reasonable doubt that Mr. Plein necessarily knew that the injury to Cindy would precipitate and be the contributing cause of death that it did.
[34] Leaving aside that this explanation improperly conflates the distinct causation and foreseeability of bodily harm elements, it is wrong in law in two material ways.
[35] First, the proper question is not what the subject, Mr. Plein, knew. The mens rea for manslaughter is not subjective, but rather objective. As McLachlin J. explained in Creighton, at p. 58, "objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably".
[36] Second, death does not have to be foreseeable in a manslaughter prosecution. "[F]oreseeability of the risk of bodily harm alone will properly result in a conviction for manslaughter": Creighton, at p. 50.
[37] These errors explain Mr. Plein's manslaughter acquittal in Cindy's death. The trial judge made clear that he was acquitting Mr. Plein because he was not satisfied that Mr. Plein would have understood the risk of death to his sister due to septic shock from an infected burn. This was not a proper basis for acquittal. When the trial judge properly applied the objective standards to his factual findings on the functionally identical criminal negligence causing death count – the same standard he should have applied to the manslaughter charge – he convicted.
(3) The consequence of the inconsistency in this case
[38] Mr. Plein argues that his criminal negligence causing death conviction must be set aside because of its inconsistency with his manslaughter acquittal. I do not agree. "[B]efore an appellate court may interfere with a verdict on the ground it is inconsistent, the court must find that the verdict is unreasonable": Pittiman, at para. 6 (emphasis in original). This limitation on the authority of appellate courts to set aside inconsistent verdicts arises because, as Charron J. explained in that same paragraph:
A court of appeal's power to set aside a verdict of guilt on the ground that is it is inconsistent is found under s. 686(1) (a)(i) of the Criminal Code which provides that the court "may allow the appeal where it is of the opinion that … the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence".
[Emphasis in original.]
[39] Here, the criminal negligence causing death conviction is reasonable and can be supported by the evidence. Indeed, it is supported by proper factual findings expressly made by the trial judge, and there is nothing of substance in the manslaughter acquittal that calls that conviction into question. It would therefore be improper to set the criminal negligence causing death conviction aside.
[40] In R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, a case heavily relied upon by Mr. Plein, Fish J. said at para. 23, that "verdicts are deemed inconsistent – and therefore unreasonable as a matter of law – if no properly instructed jury could reasonably have returned them both" (emphasis in original). Mr. Plein's position is that given that the two verdicts in his case could not both have been arrived at by a properly instructed jury, even if the conviction is entirely sustainable in law based on appropriate findings of fact made by the trial judge, the conviction must be deemed to be unreasonable and set aside simply by virtue of its inconsistency with the acquittal.
[41] I disagree. In my view, the comments made in J.F. must be understood in context. J.F. involved inconsistent verdicts rendered by a jury. Juries, of course, return general verdicts, without reasons explaining their decision. It was impossible for the court in the circumstances of J.F. to determine why the inconsistent verdicts were returned. As Fish J. pointed out, at para. 11, "the verdicts at trial … [were] not only inconsistent, but incomprehensible as well."
[42] It was in this context that Fish J. said, at para. 21, that even if the trial judge had misdirected the jury, he would decline to uphold the conviction on the ground that the two verdicts could be reconciled on the basis of a legal error at trial. This makes perfect sense where it cannot truly be known whether a legally erroneous misdirection caused the inconsistent verdicts. The jury may have based its decision to acquit on some other ground of fact or law, or it may have misapplied the law, not in arriving at the acquittal but when convicting the accused. In such circumstances, deeming the conviction to be unreasonable is an appropriate outcome, for that conviction defies explanation in the face of the opposing acquittal. In contrast, it is not an appropriate outcome to deem a demonstrably reasonable conviction to be unreasonable because of an inconsistent acquittal that is grounded in a clear legal error.
[43] I recognize that there is a certain illogic in allowing a conviction to be entered against an accused person where they have been finally acquitted of essentially the same criminal allegation. There are hints of this thinking in J.F., at para. 41. Justice Fish said:
The respondent's acquittal was not appealed. To order a new trial in these circumstances would deprive the respondent of the benefit of that acquittal, now final, and expose him on the new trial to a finding that he did in fact commit the offence of which he was acquitted, definitively, by the jury in this case.
[44] These comments, too, must be understood in context. Justice Fish made them when deciding whether to order an acquittal or a new trial, after finding incomprehensible, inconsistent verdicts. Since there was no explanation available for the inconsistent verdicts in J.F., Fish J. had no basis for questioning the acquittal. He therefore treated it as a factual finding that the accused did not fail in his duty to protect his child: J.F., at para. 40. That being so, it would not be proper to order a new trial after setting aside the inconsistent conviction, since the integrity of a conviction from the new trial would also be compromised by its inconsistency with the factual finding that the final acquittal was taken to represent. The same concerns for potential factual inconsistencies animated this court's decisions in R. v. Catton, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 25 and R. v. Walia, 2018 ONCA 197, at para. 17.
[45] This case is not J.F. Here, it would be contrary to the known facts to treat Mr. Plein's manslaughter acquittal as a factual finding inconsistent with the elements of the offence of criminal negligence causing death. The reasons for judgment, issued by the trial judge to explain that acquittal, show that he never purported to base that acquittal on factual findings hostile to a proper criminal negligence causing death conviction. The manslaughter acquittal is a verdict inconsistent with the criminal negligence causing death conviction in name only, since the trial judge did not attempt to apply the same legal standards to the two charges, and made no factual findings in rendering the acquittal that are inconsistent with the factual findings he made in support of the criminal negligence causing death conviction. As a matter of substance, the manslaughter acquittal does nothing to undercut the integrity of the criminal negligence causing death conviction.
[46] Nor do I read Fish J. as holding that an inconsistent conviction must be struck down unless the Crown successfully appeals the inconsistent acquittal. He found the absence of a Crown appeal problematic in that case, in part because the Crown was claiming that the trial judge made a legal error in a direction to which the trial Crown had acquiesced: J.F., at para. 23. More importantly, Fish J. had no reason on the record before him to doubt the integrity of the acquittal that had been registered and left undisturbed.
[47] To be sure, things would have been cleaner in this case had the acquittal been appealed and set aside. As things stand, if we uphold the criminal negligence causing death conviction there will be facially inconsistent verdicts recorded in Mr. Plein's case. In my view, however, the Crown does not have to appeal and set aside the acquittal in order to resist Mr. Plein's challenge to the reasonableness of his criminal negligence conviction. When an accused person asks to have an inconsistent conviction set aside, the reasons for that inconsistency are put in issue. As I see it, where, on an examination of those reasons, the acquittal shows itself to be defective, an appeal court must take the fact the acquittal is wrongful into account in deciding whether to grant the relief the appellant requests.
[48] Of course, the error in an acquittal will not always be as obvious as it is in this case. The Crown would be well advised, if it wishes to resist an inconsistent verdict appeal, to cross-appeal an acquittal it wishes to call into question. Even where the Crown identifies problems with the acquittal outside of the ordinary appeal period it can seek an extension of time to cross-appeal where that extension would not prejudice the defence.
[49] Still, in my view, there is no rigid legal principle that requires, ab initio, that inconsistent verdicts can never be left to stand. If there were such a principle, there would be no need for an appellate court to ask, when faced with inconsistent verdicts, whether the challenged verdict is unreasonable, as Pittiman requires.
[50] Similarly, as jealously guarded as acquittals are, the law does not always require that they be treated as inviolable declarations of innocence unless set aside. In R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.), leave to appeal to S.C.C. refused [1993] 2 S.C.R. x (note), for example, this court recognized that a sexual assault acquittal is not to be taken, on its own, as affirmative proof that the complainant made a false allegation. And in Rizzo v. Hanover Insurance Co. (1993), 103 D.L.R. (4th) 577 (Ont. C.A.), at pp. 579-80, leave to appeal to S.C.C. refused [1994] 1 S.C.R. x (note), it was held that a prior acquittal is not admissible in a subsequent civil proceeding to prove the accused did not commit the offence to a civil standard. Here, it is in the interests of justice to look at the substance of Mr. Plein's acquittal rather than to treat it as a formal, impenetrable obstacle to upholding a proper conviction.
[51] Ultimately, it is not illogical or contrary to the interests of justice to uphold a demonstrably valid criminal negligence causing death conviction where there is a final but demonstrably wrongful acquittal registered after the same trial on a manslaughter charge that alleges the same essential offence. It would, however, be illogical, contrary to the interests of justice, and contrary to the appeal powers conferred by s. 686(1) (a)(i) to strike down that reasonable conviction because the trial judge happened to enter a wrongful manslaughter acquittal that was grounded on factual findings that are not inconsistent with the criminal negligence causing death conviction that Mr. Plein seeks to attack.
[52] I would not set aside the criminal negligence causing death conviction.
B. The Fresh Evidence Application and The Findings of Guilt
[53] Should the proposed fresh evidence relating to Mr. Plein's cognitive abilities and neuropsychological condition be admitted on the issue of Mr. Plein's capacity to commit the offences charged, and if so, should a new trial on the remaining charges be ordered? In my view, leave to admit the fresh evidence on this issue should be denied.
[54] Mr. Plein is correct that "incapacity" is an answer to all of the crimes with which he was originally charged. In Creighton, at p. 63-65, the Supreme Court held that an offender charged with manslaughter or another penal negligence offence will be morally innocent and thereby excused from a finding of guilt where the person is shown to lack the capacity to appreciate the nature and quality or consequences of his or her acts. All of the charges Mr. Plein faced are crimes of manslaughter or penal negligence. The capacity inquiry in his case relates to whether he had the capacity to see the risks posed by his failure to provide the necessaries of life to his sister and mother.
[55] The fresh evidence Mr. Plein pressed for admission is provided by Dr. Duncan Day. Dr. Day is a clinical psychologist. He conducted a neuropsychological assessment of Mr. Plein and consulted additional information about the material events and the prosecution. In the proposed fresh evidence, Dr. Day offers the opinion that Mr. Plein did not have the capacity to provide the necessaries of life to his sister and mother.
[56] Fresh evidence is admissible on appeal where it is in the interests of justice to receive it: Criminal Code, ss. 683(1)(c) and (d). The four-part test from R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775 has long given structure to this "interests of justice" evaluation. Its four components were recast into a convenient three-part inquiry in R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92:
Is the evidence admissible under the operative rules of evidence (the "admissibility component")?
Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict ("cogency criterion")?
What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence ("the due diligence" criterion)?
[57] The "due diligence" criterion is not a precondition to admissibility. Instead, it is a factor to consider: Truscott, at para. 93. In the circumstances of this case, the Crown does not rely on the absence of due diligence in opposing Mr. Plein's proposed fresh evidence. The Crown urges, however, that the proposed fresh evidence fails on each of Truscott's two fixed prerequisites, the admissibility criterion and the cogency criterion.
[58] The Crown raises two objections to the admissibility of Dr. Day's expert opinion evidence. Its first objection is that Dr. Day does not have the expertise required to provide an expert opinion about Mr. Plein's capacity to meet the objective penal negligence standards that apply because Dr. Day is not a forensic psychologist familiar with the governing legal standards.
[59] In my view, Dr. Day does not have to make that grade to qualify to offer expert opinion evidence relevant to Mr. Plein's capacity. As a clinical psychologist, Dr. Day clearly possesses special knowledge and experience going beyond that of the trier of fact in measuring cognitive abilities and emotional health, and interpreting psychometric data to offer an opinion about Mr. Plein's capabilities. This is enough to satisfy the expertise requirement.
[60] The Crown's second admissibility objection is that Mr. Plein has not presented admissible evidence to provide a foundation for Dr. Day's opinions. The Crown argues that those opinions should therefore not be given weight according to the principles affirmed in R. v. Lavallee, [1990] 1 S.C.R. 852, at pp. 889-90 and 894, and see R. v. Scardino (1991), 6 C.R. (4th) 146 (Ont. C.A.), at p. 153.
[61] In this case, Dr. Day's opinion is not based entirely on self-serving hearsay offered by Mr. Plein, as the Crown contends. Dr. Day's opinion is materially grounded in psychometric testing conducted by a psychometrist. To be sure, this testing was dependent on Mr. Plein's participation, but it included performance testing with built in controls to minimize the risk of deception. While the weight to be given to performance test results is affected by their shortcomings, including the risk of distortion as the result of attempts by the subject to mislead, the test results themselves are not hearsay evidence.
[62] In my view, while the proposed fresh evidence would be admissible at a trial on the issue of capacity, it is not admissible as fresh evidence on appeal because it lacks the cogency required. Mr. Plein has not satisfied me that Dr. Day's evidence could realistically be expected to raise a reasonable doubt about whether Mr. Plein had the capacity to see the risks that his failure to provide the necessaries of life to his sister and mother would pose.
[63] In R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 205, Watt J.A. explained how the cogency of fresh evidence is to be approached:
The cogency requirement asks three questions:
Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
Is the evidence credible in that it is reasonably capable of belief?
Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?
[64] I have no concerns on the first question. Dr. Day's evidence is relevant in that it bears upon Mr. Plein's capacity, a decisive or potentially decisive issue at the trial.
[65] Nor do I rely on the second question in finding Dr. Day's evidence to lack sufficient cogency. Although the Crown contends that Dr. Day's evidence about Mr. Plein's incapacity is incredible and therefore not reasonably capable of belief, I need not determine whether that is so. Even if honestly held, Dr. Day's opinions about Mr. Plein's capacity are so bereft of probative value that they could not reasonably have affected the capacity finding.
[66] First, Dr. Day's opinions are significantly weakened by limitations in his expertise. He is well situated based on psychometric testing to describe Mr. Plein's general level of cognition relative to others. Based on his demonstrated credentials Dr. Day is not equipped, however, to relate his assessment of Mr. Plein's capacity to the standards that apply to the penal negligence based offences Mr. Plein was charged with, or to evaluate Mr. Plein's capacity based on his life-performance. This diminishes the utility of Dr. Day's opinions.
[67] More importantly, Dr. Day's opinions about Mr. Plein's capacity rest materially on attitudinal or social factors, such as Mr. Plein's distrust of the medical profession, and his family culture of isolation and denial. I agree with the Crown that, in particular, Mr. Plein's claimed distrust in the medical system is belied by his own frequent use of it, but that is a secondary point. The key concern is that these attitudinal or social factors have nothing to do with Mr. Plein's intrinsic cognitive abilities or his emotional health, which are Dr. Day's areas of expertise.
[68] In my view, Dr. Day's opinions about Mr. Plein's capacity to provide the necessaries of life are therefore a mélange of expert opinion of modest weight, and inadmissible personal speculation about the effects that Mr. Plein's attitudes and beliefs would be apt to have had on his behaviour.
[69] While this seriously weakens the probative value of what Dr. Day has to say about Mr. Plein's capacity, the proposed fresh evidence opinions are completely undercut by evidence that demonstrates Mr. Plein's capacity to see and appreciate the risk posed by his failure to provide his sister and mother with the necessaries of life.
[70] A significant body of evidence showed that, despite his intellectual challenges, Mr. Plein was capable of exercising judgment and functioning effectively. He drove a vehicle, worked as a mechanic, and managed a bowling alley. He refereed and coached sports, including baseball, hockey, and bowling. Until Cindy's accident, he cared for his mother and sister, including by taking them to medical appointments and managing medication. He had the competence to make integral medical decisions, including when agreeing to the psychological testing done by Dr. Day.
[71] Dr. Day revised his opinion when he was confronted with these things during cross-examination. He initially said that Mr. Plein was not capable of caring for others, but in the face of the above information he softened that position, accepting that Mr. Plein was capable of doing so. Dr. Day maintained, however, that Mr. Plein could not solve problems when faced with a crisis and that this rendered him incapable of identifying and responding to the risks his sister and mother would be in if he failed to provide the necessaries of life to them.
[72] In my view, there is no realistic prospect that Dr. Day's opinion about Mr. Plein's incapacity would resonate with a reasonable trier of fact. The photographic images of the condition of Cindy and Erika taken immediately after they died are indelible in their horror. There is absolutely no subtlety in the urgent need they were in. Given Mr. Plein's demonstrated capacities, it defies reasonable belief that he would not have seen that they were at risk of bodily harm if he did not intervene.
[73] Indeed, the evidence showed that, while they were suffering, Mr. Plein lied to others about the gravity of their condition. After they died, he lied about them having received home care and claimed it had only been a few days since his mother had eaten. In other words, he minimized their condition and exaggerated what had been done for them. These lies support a compelling inference that Mr. Plein recognized that his response to their situation could be judged by others to be inadequate.
[74] Finally, Dr. Day's opinion is completely undercut by proof that when Mr. Plein himself needed medical care, he knew how to obtain it and did so, including managing his own hip replacement surgery.
[75] The care that Mr. Plein's sister and mother needed was more basic, obvious, and more easily achieved than the care Mr. Plein secured for himself. All that was needed when his sister languished in her bed, and when his mother was withering away, was a simple 911 call, something Mr. Plein had done before when his mother fell, and did again, albeit far too late, when his sister and then his mother were dying.
[76] In my view, the fresh evidence Mr. Plein offers does not, therefore, have sufficient cogency that it could reasonably be expected to raise a reasonable doubt about his capacity. The interests of justice are therefore not served by its admission and there is no basis upon which to order a new trial.
[77] I would therefore dismiss Mr. Plein's conviction appeal.
C. The Fresh Evidence Application and The Sentence
[78] Mr. Plein was sentenced to a total custodial sentence, before credit for presentence custody, of 18 years. That sentence consisted of eight years in custody for criminal negligence in the death of Cindy Plein, and a consecutive 10 year custodial sentence for the manslaughter of Erika Plein.
[79] Mr. Plein seeks leave to have the proposed fresh evidence of Dr. Day relating to his cognitive abilities admitted on the issue of sentencing. He argues that Dr. Day's evidence about his cognitive limitations reduces his level of moral blameworthiness, requiring that his sentence to be set aside and replaced by a sentence that is fit in all of the circumstances.
[80] In my view, the inadmissibility of the proposed fresh evidence on the capacity issue does not resolve its admissibility in the sentencing appeal. The issues are materially different. Evidence of incapacity demonstrates that an offender cannot meet the penal negligence standards imposed by the law. Evidence of cognitive impairment short of incapacity, however, may nonetheless assist in a sentencing proceeding by explaining why an offender failed to meet the standards of penal negligence that he was capable of meeting. In my view, when the contested Truscott criteria are applied to the proposed fresh evidence on the question of a fit sentence, the interests of justice require its admission.
[81] I have already determined that Dr. Day's evidence would meet the basic requirements for the admission of expert opinion evidence, had it been presented at trial.
[82] In my view, the proposed fresh evidence would also reasonably be expected to affect the sentence imposed. I refer specifically to Dr. Day's testimony about the administration and interpretation of Mr. Plein's psychometric tests, as well as Dr. Day's testimony about how the test results situate Mr. Plein's cognitive abilities relative to others. Specifically, Dr. Day's evidence shows Mr. Plein "to have largely Borderline to Low Average cognitive abilities". His Full Scale IQ was 73, "which is in the Borderline range (4th percentile)". He showed particular difficulties in some aspects of memory, "but his executive and other frontally mediated abilities are variable with signs of mental rigidity or inflexibility that may be having an impairing impact on functioning". Simply put, when compared to most others, Mr. Plein has cognitive challenges that make it more difficult for him to analyze the situation he is in, and to make optimal decisions.
[83] This evidence bears on the fitness of Mr. Plein's sentence, a decisive issue in the trial. The fundamental principle of sentencing, codified in Criminal Code, s. 718.1, requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Evidence of diminished intelligence can be important in identifying the moral fault and hence the degree of responsibility that should be ascribed to the offender for his acts: R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 73.
[84] The trial judge certainly recognized how important such information would be. He said:
There is some indication in the material provided that there might be some cognitive issues with Mr. Plein. The difficulty with that is, there is no evidence of cognitive issues…
I implored, if it was available, defence counsel to contextualize for me what was going on in Mr. Plein's head. There is simply no evidence of a cognitive issue.
[85] Second, whatever credibility problems there were with Dr. Day's opinions about Mr. Plein's incapacity, those concerns do not undercut the credibility of the psychometric measures Mr. Plein achieved when tested by a psychometrist. Nor do they call into question Dr. Day's explanations of the significance of those scores in situating Mr. Plein's intelligence relative to the norm. This evidence relating to Mr. Plein's cognitive limitations was reasonably capable of belief.
[86] Finally, Dr. Day's evidence is sufficiently probative of Mr. Plein's level of moral fault that it could reasonably be taken with the other evidence adduced at trial to be expected to have affected the result in regard to sentencing.
[87] As I have indicated, while Dr. Day lacks the expertise required to offer cogent opinions about Mr. Plein's capacity to meet penal negligence standards, he is well situated based on psychometric testing to describe Mr. Plein's general level of cognition, relative to others. Moreover, the evidence contradicting Mr. Plein's incapacity does not disprove that Mr. Plein suffered from cognitive impairment short of incapacity. Indeed, lay witnesses offered evidence supporting the conclusion that Mr. Plein is intellectually challenged.
[88] I would therefore admit the proposed fresh evidence on the issue of the fitness of Mr. Plein's sentence. In my view, once admitted, that evidence shows that the sentence imposed by the trial judge was demonstrably unfit in all the circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
[89] The trial judge understood the importance of this evidence. He commented repeatedly in his reasons for sentence about the absence of evidence that Mr. Plein was cognitively impaired and "implored" defence counsel to provide such evidence, if available. It is evident that the trial judge looked for such evidence because Mr. Plein's failure to provide the necessaries of life to his sister and then his mother "defied comprehension". The trial judge commented that absent evidence such as proof of a cognitive deficit, "there is […] no anchor to discern why Kevin Plein did what he did".
[90] The absence of information that could help the trial judge "contextualize […] what was going on in Mr. Plein's head" was crucial to the trial judge's evaluation of moral blameworthiness and the sentence he imposed. Without evidence of a cognitive deficit or other mental infirmity, the trial judge was left to conclude that Mr. Plein's crimes were malevolent, attracting an "exceptionally high" level of moral blameworthiness in Erika's case, and a "very high end of the moral culpability scale" finding in Cindy's case.
[91] With respect to Mr. Plein's mother, Erika, the trial judge was left to conclude that Mr. Plein "chose to watch her die" because she was "the last impediment to the rather unfortunate life hand he had been dealt". He found that Mr. Plein "set about to effectively author the killing of his mother by failing to provide her with the nutrition she needed to survive".
[92] The trial judge stopped short of making the same finding with respect to the death of Cindy, but did note that it appears that Mr. Plein had enough of caring for both his mother and sister. The trial judge found that Mr. Plein's failure to provide the necessaries of life to Cindy to be "deliberate" and "calculated". While he did not use directly the Crown's characterization that Mr. Plein was self-absorbed and indifferent to the point of "true depravity", the trial judge quoted these descriptors. And it is fair to say that the trial judge agreed with them. His sentencing decision is a wholesale endorsement of the Crown's position, and he expressed "complete agreement with the Crown submissions in general".
[93] In my view, the trial judge's hard findings about Mr. Plein's level of moral fault cannot stand in the face of the fresh evidence. Indeed, given how important the trial judge considered evidence of cognitive impairment to be, it is probable that if the trial judge had the benefit of Dr. Day's evidence, it would have tempered his assessment of Mr. Plein's moral fault.
[94] On the current record, it cannot be assured that Mr. Plein authored the killing of his mother to unburden himself, and deliberately calculated the death of his sister. In light of Dr. Day's evidence, Mr. Plein should not be sentenced as someone who was malevolent or depraved, but rather as someone who made grossly negligent and irresponsible decisions, and who failed to attend to the needs of his sister and mother with the same level of care he used when attending to his own direct interests. This itself describes a high level of moral fault for Mr. Plein, but it falls short of the extremes of moral fault the trial judge used in calculating Mr. Plein's sentence.
[95] It is also my view that, on the current record, Mr. Plein should not be sentenced as a man whose moral deficit takes him beyond meaningful rehabilitation, or as someone who holds no insight into what he has done. His potential for his rehabilitation should be recognized and his expressions of remorse – that he misses his sister and mother and wishes he himself were dead – should not be entirely disregarded.
[96] In light of the fresh evidence and consistent with the principle of totality, I consider a sentence of 14 years in custody to be a fit sentence – eight years for the manslaughter of Erika Plein, and six years consecutive for causing the death of Cindy Plein by criminal negligence. The presentence custody of 1,405 days (937 actual days at 1.5:1) that the parties agree that Mr. Plein is entitled to must be deducted from this 14 year sentence.
Disposition
[97] As stated above, I would dismiss the conviction appeal.
[98] However, I would grant leave to admit the fresh evidence, grant leave to appeal the sentence, set aside the sentences imposed by the trial judge, and substitute a global sentence net of 1,405 days' presentence credit of 10 years' and 2 months' custody.[1]
Released: September 14, 2018
"David M. Paciocco J.A."
"I agree. Robert J. Sharpe J.A."
"I agree. David Brown J.A."
[1] 14 years x 365 days per year = 5,110 days. 5,110 days – 1,405 days of presentence custody = 3,705 days (i.e., 10 years and 2 months).
