Court of Appeal for Ontario

Docket: C64354

Judges: Rouleau, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Monica Kos-Rabcewicz-Zubkowski Appellant

Counsel

Ian R. Smith, for the appellant

Erica Whitford, for the respondent

Heard and released orally: March 19, 2019

On appeal from the conviction entered on August 30, 2010 by Justice Catherine A. Kehoe of the Ontario Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of failing to provide the necessaries of life and assault. Both counts related to her 86-year-old mother. The offences were said to have been committed in 2007 and the appellant was convicted in 2010. We are informed that while the appellant appealed her convictions at the time, she did so on her own and the matter was never perfected. When this matter was discovered by the inmate appeal program, Mr. Smith took carriage of the appeal and it has moved forward expeditiously since then.

The Failing to Provide Necessaries of Life Conviction

Trial Judge's Findings

[2] The trial Crown alleged a wide array of conduct said to underscore the fail to provide the necessaries of life count. The trial judge concluded that, while the conduct informed the "context" against which the charge could be considered, the elements of the offence were only made out in relation to a single incident on November 26, 2007, where the appellant left her mother sitting in a chair on the porch of their home for about an hour with the front door locked.

[3] Two plain clothes police officers arrived at the home and found the mother sitting there. They testified that she was cold and disoriented. Although she was wearing a coat, and had a wig on her head, she was not wearing mittens, a scarf or a hat. One officer thought that she may have only had running shoes on her feet, while the other officer thought that she recalled that the mother had winter boots on. The officers knocked at the door for a period of time and, when they did not get a response, they had the appellant's mother wait in an unmarked police car and ultimately transferred her to an ambulance which delivered her to the hospital. The Crown led no evidence regarding any findings by the ambulance or hospital personnel.

[4] The trial judge concluded as follows:

Halina Kos, at 86 years old, was frail, had suffered a stroke, and although recovered for the most part had limited mobility, early dementia, skin cancer and other medical conditions. She was left completely vulnerable to the elements on November 26th 2007 that were well below freezing temperatures, snow and ice. Halina could not negotiate stairs, or the driveway on her own, even with the use of the walker. The door into the home was locked and [the appellant] did not answer it.

Having reviewed the law, considered all the submissions of counsel, I find that the danger of freezing, frostbite, or other injury was foreseeable and was completely avoidable.

[5] On that basis, the trial judge found the appellant guilty of failing to provide the necessaries of life to her mother.

Legal Error: Marked Departure Standard

[6] The trial judge erred in failing to address an element of the offence, specifically whether the appellant's actions in failing to meet her legal duty to provide the necessaries of life constituted a marked departure from what a reasonably prudent person would do in those circumstances: R. v. Naglik, [1993] 3 S.C.R. 122, at pp. 141-44; R. v. S.J., 2015 ONCA 97, at paras. 53-54. Although we agree with Crown counsel that the trial judge adverted to this element of the offence on a few occasions, the trial judge erred when she failed to address what a reasonably prudent person would do in the circumstances of this case and whether the appellant's conduct actually constituted a marked departure from that standard.

Unreasonableness of Verdict

[7] Although a new trial would typically be an appropriate remedy for this kind of error, the appellant goes further and maintains that the verdict of guilt was unreasonable. She relies primarily on the submission that there was no medical or other evidence to support the suggestion that the mother's life was endangered or that being left on the porch alone for up to one hour was likely to cause her health to be permanently injured.

[8] While the evidence was that the appellant's mother was frail and had previously suffered a stroke, there was unchallenged evidence that she loved to sit outside, that she frequently did so, and that over a three-year period preceding the offence, she never wandered from the chair on the porch where the police found her.

[9] Although the Crown points to the fact that when the appellant's mother would stay at a retirement residence, someone would keep an eye on her when she sat outside, nothing turns on this point. That the retirement residence chose to watch the mother on the frequent occasions she would sit outside does not mean that the daughter's decision to leave the mother unattended on November 26th, particularly in light of the mother's track record of never wandering from the chair in the previous three years, represented a marked departure from what a reasonably prudent person would do in those circumstances. Against the factual backdrop of this case, and in the absence of medical evidence, the appellant maintains that it was not possible to find that the mother's life was endangered or that her health was likely to be permanently injured. She argues that this conclusion is reinforced by the fresh evidence tendered on appeal.

Fresh Evidence: Temperature

[10] One of the detectives who dealt with the appellant's mother on November 26th testified that the temperature was between minus eight and minus ten degrees Celsius. She testified that she recalled the temperature and that she later ran a Google search to confirm the temperature, but that she had forgotten to retrieve the printout of the Google search form from the printer. The trial judge found the police officers to have given credible and trustworthy evidence and made specific note of the temperature that day being minus eight degrees Celsius.

[11] The appellant relies upon fresh evidence obtained from the Government of Canada demonstrating that the temperature in close proximity to the appellant's home on November 26, 2007, at the time that the police were dealing with the appellant's mother, was actually around four degrees Celsius, with virtually no wind.

Admissibility of Fresh Evidence

[12] Crown counsel objects to the admission of the fresh evidence on two bases under the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775: (a) cogency, and (b) due diligence.

[13] As for cogency, while Crown counsel acknowledges that the fresh evidence brings into question the trial judge's finding that the mother was in danger of freezing and frostbite, she argues that the trial judge also found that the mother was in danger of "other injury" that was foreseeable. Crown counsel has posited a number of possible injuries, including falling on the icy driveway, being attacked by a stranger, having a stroke, and so on. We do not agree with the Crown's position.

[14] We see the fresh evidence as highly cogent. The only two things that the trial judge specifically pointed to as creating the risk of death or permanent injury were frostbite and freezing. That finding was made with no medical or expert evidence and is now significantly undermined by the 12 degree differential in temperature between what the trial judge noted the temperature was and what it actually was.

[15] Crown counsel also says that the evidence should not be admitted for due diligence reasons. We disagree. We can think of no strategic reason to explain why the appellant's counsel at trial would not challenge the officer on her clearly wrong and misleading evidence about the temperature on the day in question. It is highly cogent evidence going to the heart of the trial judge's reasoning process – the due diligence requirement must yield in order to avoid a miscarriage of justice: R. v. J.A., 2010 ONCA 491, at para. 79. We would admit the fresh evidence.

Conclusion on Failing to Provide Necessaries

[16] In the end, the Crown's case, at its highest, was that the appellant's mother was alone on the porch, dressed in a winter coat with a thick wig on her head, for up to an hour, where she had always sat for the few years previous and never strayed, in plus four degree weather. In these circumstances, even though the appellant did not answer when the police knocked at the locked door, in the absence of any medical or other evidence suggesting that the mother's life could have been endangered or how it was that those circumstances were likely to cause her health to be permanently injured, any verdict of guilt would be unreasonable.

The Assault Conviction

Trial Evidence

[17] The appellant was also convicted of assaulting her mother. That count rested entirely on a neighbour's evidence that in the few months leading up to November 2007, on one occasion, from across the street, he saw the appellant push her mother out the front door. It appeared to the witness that the mother did not want to go outside and was upset. He recalled that the appellant had her hand on her mother's shoulder while her mother attempted to get back inside. There was yelling, but the appellant and her mother were not speaking in English; the witness could not understand what they were saying. The appellant's voice sounded angry. The trial judge accepted the witness's evidence and entered a conviction, finding that the mother did not consent to the touching witnessed by the neighbor.

W.(D.) Error

[18] The appellant says that the trial judge erred by failing to take into account her evidence on that point. She denied having pushed her mother out the door and explained that what the neighbour might have seen was an innocent interaction that could have had something to do with a loose door knob. At its core, this is an alleged R. v. W.(D.), [1991] 1 S.C.R. 742, error.

[19] Although Crown counsel agrees that the trial judge did not give any reasons for rejecting the appellant's evidence on this specific count, she maintains that the reasons in context show that the trial judge took the appellant's evidence into account. Crown counsel emphasizes that the trial judge specifically adverted to W.(D.) and applied it in the context of the fail to provide the necessaries count.

[20] We disagree with those submissions.

[21] The trial judge did not advert in any way to the appellant's explanation for what the neighbour might have seen. Although the trial judge was under no obligation to recount all of the evidence, it is unclear from her reasons that the trial judge even considered the appellant's evidence on this point.

Disposition

[22] As a result, we set aside the conviction on the fail to provide necessaries of life count and enter an acquittal.

[23] We also set aside the conviction on the assault count and order a new trial.

[24] The Crown will undoubtedly take into consideration that the appellant has already served her sentence in determining whether to proceed with that prosecution.

"Paul Rouleau J.A." "B.W. Miller J.A." "Fairburn J.A."