Ontario Court of Justice

Her Majesty the Queen v. Rey Lozada

Reasons for Sentence

Before: The Honourable Madam Justice Perkins-McVey

Date: Thursday, June 6, 2013 at Ottawa, Ontario

Appearances

Counsel for the Crown: J. Daller

Counsel for the Defendant: E. Lyttle

Reasons for Sentence

PERKINS-MCVEY, J. (Orally):

Background and Conviction

Mr. Lozada was found guilty of one count of common assault contrary to s. 266 of the Criminal Code. This assault occurred on May 18, 2011, while Mr. Lozada was acting in a capacity as a PSW worker at the Perley-Rideau Hospital. The assault in essence was the bending back of three fingers of Mr. Annany's hand. Mr. Annany was an elderly patient suffering from advanced Alzheimer's. He was under Lozada's care. Mr. Annany suffered no bruises or no tearing of the skin, no injury of any kind as a result of this assault. When confronted the next day, he could not recall the event.

A victim impact statement was not obtained from Mr. Annany as he had passed away prior to the commencement of the trial, as a result of advanced Alzheimer's and old age, completely unrelated to the offence that's before the Court. There was no victim impact statement obtained from anyone from his family.

Crown's Position

The Crown in this matter seeks a jail sentence, a real jail sentence of three to four months given the statutory aggravating factor under s. 718.2 of the Criminal Code, that being that this case was a breach of trust. In addition, the Crown seeks a period of three years probation. The Crown argues that a real jail sentence is needed to send the message to the community that elder abuse is not acceptable.

Defence's Position

The defence agrees that a jail sentence is required, but seeks the Court impose a conditional sentence of incarceration, a jail sentence to be served in the community, one of a duration of two to six months plus a period of probation. Defence argues the accused has no prior record, has a positive pre-sentence report, as well as significant support of the families of many of the patients who've been under his care.

Character Evidence and Support

The background of Mr. Lozada was obtained as a result of a pre-sentence report. Defence also filed a comprehensive book of 13 character letters. Many of these letters came from family members of Mr. Lozada's past patients. Defence also called three of those persons as witnesses at the sentencing hearing.

Pat Matthews said, even knowing of the facts of the case, she would entrust him with the care of her father. She said Mr. Lozada cared for her father for seven years while he suffered dementia. She said Rey always remained calm and that she never saw him with any temper outbursts. She described him as calm and understanding.

Brenda Gowdy testified that Mr. Lozada was always friendly, often brought up concerns about how the patients were cared for. The example she gave was the hospital stopped serving pie and as Rey said, "How can you have pie without ice cream?" This was an example that she gave of Mr. Lozada's specific concern for the care and the well-being of the patients.

Viviane Monahan also testified. She worked with Mr. Lozada for 11 years on average of three days per week. She described that he was dedicated and would always go that little extra mile to help patients. She said she never saw him acting in an inappropriate way in his handling of patients or dealing with other staff.

Personal Background

Mr. Lozada was born and raised in the Philippines. His extensive family background and the relationships he had with his family is set out in the pre-sentence report, Exhibit One. He began working at the Perley and Rideau Veterans Health Centre – he worked there for 21 years. He described in the pre-sentence report that he felt mistreated there due to his immigrant status and that, while working there, he suffered bouts of depression due to the stress he experienced. His employment was terminated as a result of this offence and he has been struggling with depression and struggling to find a job since that time.

Prior Incidents

The Crown called evidence from Ms. Homuth, who at the time was a manager at the Perley and Rideau Veterans Health Centre. She testified regarding his personnel file and a previous complaint that he had been swearing at a patient. As well there had been a previous complaint that he had slapped a patient's hand. This had been the subject of a grievance and the word "slap" was removed from his personnel file. There was no other action taken and no criminal charges were laid. As a result of the grievance, he was directed to take further training, but it is unclear whether this was ever followed through by the hospital.

Mental Health

There was no suggestion in the pre-sentence report that Mr. Lozada has any problems with drug or alcohol. There's no suggestion that he leads a negative or criminogenic lifestyle. It does come through the pre-sentence report that Mr. Lozada has suffered depression and had been under the care of a psychiatrist at the time of the commission of this offence. There are letters from his psychiatrist, Dr. Matthew Suh which confirms that he suffers from moderate depression, anxiety attacks, low self-esteem, agoraphobia, and acute and near paranoidal distrust of others. Essentially he was diagnosed as having acute stress disorder without question as indicated by the doctor's report. The process of being charged, being brought before the Court, having his reputation sullied has certainly had a significant and deterrent effect on Mr. Lozada.

Sentencing Principles

Fundamental Purpose

The fundamental purpose of sentencing, of course, is always to find respect for the law, maintenance of a just, peaceful and safe society by imposing just sanctions, sanctions that are fair both to the community, to the reputation of the courts and to the accused. A sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Sentencing Objectives

Section 718 of the Criminal Code sets out one or more sentencing objectives that courts must consider to denounce and deter unlawful conduct, separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparation for harm done to victims and to the community, and to promote a sense of responsibility in offenders and acknowledgement of harm done to victims and the community. How much emphasis a court places on any one of those sentencing objectives varies according to the nature of the offence and the circumstances of the offender.

What makes sentencing so difficult is that it's not a one size fits all. I can't put the numbers of the offence or the offender's name into a computer and come out with an answer. The courts always have to look at all of the circumstances unique to the offender, as well as the circumstances of the case to try to find that just balance. And that is what I have attempted to do today.

Mitigating Factors

In determining the appropriate sentence, I take into account a number of mitigating factors:

• Mr. Lozada has no criminal record.
• He has a history of dedicated care to the elderly.
• This incident appears to be out of character.
• I do acknowledge the previous incident as indicated in his employment record, but given that it was grieved and the slap was removed from that record, I place little weight on that and it is certainly not evidence of criminogenic behaviour.
• I take into account the many positive letters of support. I see that some of those supporters remain in court with you today.
• There were no injuries to the victim.
• It is appreciated from the letters that have been provided and from review of the psychiatric reports that the work you did, Mr. Lozada, was difficult. It was challenging. On this day, there was an unfortunate response to a frustrating event. You were suffering from stressors and depression at the time.

Aggravating Factors

I also take into account a number of aggravating factors:

• Without question, Mr. Annany was an elderly, 90-year-old man with Alzheimer's. His age and his vulnerability is obviously a major aggravating factor.
• In addition, you were in a position of trust to care for him and that breach of trust is, of course, an aggravating factor.

Analysis of Case Law

R. v. Foubert

The Crown is seeking a jail sentence for Mr. Lozada relying on the fact that, in fact, that this offence did occur in the context of a breach of trust. The Crown relies primarily on the decision of R. v. Foubert to argue that, in circumstances such as this, the courts must send the appropriate message to the community and others that this kind of offence must be denounced and deterred.

In the Foubert case, the accused pled guilty to assaults on four elderly residents and three co-workers and received eight months in jail. It was in essence one month on each offence, but on one of those offences, I think it was the first offence, he did receive three months in jail. In that case, co-workers had noticed unexplained bruising on residents, but it is not a circumstance in our case. That accused, Mr. Foubert had been seen by other co-workers kneeing, squeezing and roughly lifting and throwing residents down in their beds. There was also noted assaults on co-workers.

Justice McKinnon, in the decision of Foubert, agreed that elder abuse is a growing problem in our society that must be seriously addressed. As he states in paragraph 30, and I quote:

"In my opinion, there is little to distinguish individuals suffering from Alzheimer's disease or severe dementia from children. Both are among the most vulnerable members of our society. Just as one is forbidden to strike a baby, one is forbidden to strike a vulnerable, elderly person."

He goes on to say that application of force to control those lashing out must be applied using the least amount of force possible and force must always be the final option.

In R. v. Foubert, the Court states at paragraph 32:

"The only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that trust will be sent to jail. In my view, incarceration is the only reasonable alternative to ensure a safe and secure environment for those extremely vulnerable individuals who are at the mercy of their caregivers."

The defence argues that the facts in the Foubert case are far more serious than the facts before me. And hence, that case involved a more significant and egregious breach of trust. The defence agrees a jail sentence is required, but suggests that deterrence can be achieved through a conditional jail sentence plus a period of probation.

Issues for Determination

As evident from the submissions of the Crown and the defence in this case, the parties have wide and diverging views of what's the appropriate sentence. As indicated, the Crown seeks three to four months in jail, followed by three years on probation. The defence proposes a conditional sentence served in the community, followed by probation. The issues for me to determine are whether a custodial sentence should be imposed. Secondly, if a custodial sentence is imposed, can a conditional sentence, if imposed, adequately address the principles of general deterrence and denunciation?

Conditional Sentence Framework

Statutory Requirements

As prescribed by s. 742.1 of the Criminal Code, a conditional sentence of incarceration is available if a person is convicted of an offence other than a personal injury offence if there is no minimum term of incarceration provided that the appropriate sentence is less than two years and the Court is satisfied that the serving of the sentence in the community would not endanger the safety of the community and that the sentence is consistent with the principles of sentence set out in s. 718 to s. 718.2 of the Criminal Code.

In this case, given that the Crown has elected summarily, a conditional sentence is available. There is no minimum sentence and the Crown is seeking a sentence of less than two years. The real question is whether the seriousness of the offence, most particularly the fact that it occurred in the context of a breach of trust, whether given that, the Court can impose a sentence that addresses the principles of deterrence and denunciation through a conditional sentence?

R. v. Proulx

The Supreme Court of Canada, in the decision of R. v. Proulx, commencing at paragraph 65, sets out that the requirement that the safety of the community would not be endangered by the offender serving the sentence in the community is a condition precedent to the imposition of a conditional sentence and not the primary condition in determining whether a conditional sentence is appropriate. The Court indicated a judge must consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient deterrence or undermining general respect for the law.

Paragraph 68, the Supreme Court of Canada directs, "The danger to the community is measured by the assessment of risk of re-offence in the extent of the harm that might result from re-offence." The decision in Proulx also stands for the proposition that a conditional sentence can incorporate the principles of denunciation and deterrence provided that punitive conditions, such as restriction of liberty, are incorporated as part of such sentence. The Court also stated that denunciation of the conduct can be reflected in a conditional sentence, particularly when onerous conditions are imposed and when the duration of a conditional sentence is extended beyond the length of a jail sentence that would ordinarily be imposed.

R. v. Wismayer

Also, as indicated by R. v. Wismayer, deterrence cannot be the sole justification for rejecting a conditional sentence. It should be noted that a person who is subject to a conditional sentence of jail is serving a jail sentence in the community. There is the imposition of a criminal record. That individual does not have the benefit of parole or statutory release. Further, the individual living under a conditional sentence still carries the societal stigma of being a convicted offender who is under a criminal sentence, living with prescribed conditions and supervision.

Court's Decision

Balancing Factors

The aggravating fact in this case is that Mr. Lozada was a PSW worker and Mr. Annany was entrusted to his care. I agree that general deterrence is required and that the abuse of the elderly is a growing problem that cannot be tolerated. That being said, Mr. Lozada has no prior record. He was suffering from stress and depression at the time. I accept that but for this incident and the incident in his employment file, that for the majority of his 21 years, he was a patient and caring PSW worker dealing with the most challenging patients, those with Alzheimer's, under stressful circumstances.

As indicated, it is clear that Mr. Lozada has been deterred by the process of being charged, the trial, the loss of his job, the loss of his reputation, his mental health has been profoundly affected. Mr. Lozada will have a criminal record which will aversively affect and likely prevent him from ever working with a vulnerable sector either in a volunteer or professional capacity.

Nature of the Assault

This is an assault, but it is an assault at the lower end of assaults. Three fingers were briefly pushed back as Mr. Lozada was being swung at and hit by Mr. Annany. There were no bruises or marks on Mr. Annany's fragile skin. This is not an assault on a scale seen in R. v. Foubert. This was not a calculated or venomous assault. This is, however, a breach of trust and for that reason, a jail sentence is warranted, but I find that Mr. Lozada poses no risk to the community and, but for this event, has no criminal record. This is an assault where there's no injuries. This was an inappropriate response to a difficult and challenging situation.

Conditional Sentence Imposed

I find that it would not be contrary to the purpose and principles of sentence to impose a jail sentence to be served in the community. Further, I find that the principle of general deterrence and denunciation of the conduct can be met by the imposition of a sentence longer than the real jail sentence I would've otherwise imposed. There will be restrictions of liberty. Mr. Lozada will be held responsible and accountable for this sentence. In no way does the imposition of a conditional sentence suggest that the courts tolerate such behaviour or that elder abuse is something that can be condoned in any way.

Mr. Lozada's an individual who also needs to be rehabilitated and supported. As I've said before, Mr. Lozada, sometimes otherwise good people make mistakes and they have to be held responsible for those mistakes, but justice should be fair and I think the only fair result is a conditional sentence. So, in balancing all of the principles that I must, I find that a conditional jail sentence of 90 days, followed by one year of probation will adequately address the principles of denunciation and deterrence and yet respect the circumstances of the offence and Mr. Lozada's own personal background.

Conditions of Conditional Sentence

The terms and conditions of the conditional sentence will be as follows:

Statutory Terms and Conditions

• You must keep the peace and be of good behaviour.
• Appear before the court when required to do so.
• You will report in person to a conditional sentence supervisor and thereafter report as and when required.

Residence and Travel

• You will remain within the Province of Ontario except with the prior written permission of your supervisor to go outside the province.
• You will notify the court or your supervisor of any change of your name, address, employment or occupation.
• You will reside only at an address approved of by your supervisor and you will not change your residence without the prior approval of your supervisor.
• At all times, when you're absent from your place of residence, you are to travel directly to and from your residence and you are ordered to carry a copy of this order with you. It's as much for your protection as the community's.

House Arrest (First 60 Days)

During the first 60 days of your conditional sentence, you shall be in your residence at all times except for the following reasons:

• For the purposes of medical appointments for yourself or your immediate family.
• To attend counselling or treatment programs as directed by your conditional sentence supervisor.
• For such community or personal purposes as approved by your supervisor in writing, in advance.
• For the purposes of seeking employment or maintaining employment. You're allowed to be outside your residence, but you should consult and advise your conditional sentence supervisor in advance.

Authorized Absences

You are authorized to be outside your place of residence either once per week for four hours at a time or twice per week for two hours at a time. The Court authorizes twice per week on Wednesdays and Saturdays for two hours.

You are authorized to attend religious service from 11:00 until 1:00 in case there's any fellowship following service.

Non-Attendance Condition

You are not to attend within 100 metres of the Perley and Rideau Veterans Health Centre, located at 1750 Russell Road.

Treatment and Counselling

In addition, as directed by your supervisor, you will attend for any assessment, treatment, counselling or programs that may assist you. That may include psychological counselling. You will sign any and all releases as required by the conditional sentence supervisor to monitor your attendance and progress at any such counselling or other treatment programs.

Vulnerable Sector Restriction

During the term of this conditional sentence order, you are directed not to work in a volunteer or professional capacity in any vulnerable sector. That would include dealing with both elderly and young persons for the term of this order.

Conditions of Probation (One Year)

It will be followed by a period of probation of one year on the following terms and conditions:

• You'll keep the peace and be of good behaviour.
• You'll appear before the court when required to do so.
• You will notify the court or probation office in advance of any change of your name, address, employment or occupation.
• You'll report to the probation office within two days of ending the conditional sentence.
• You'll reside only at an address approved of by the probation officer.
• You're not to attend within 1950 Russell Road at Perley and Rideau Veterans Hospital.
• You will attend for any assessment, treatment, counselling or programs with respect to psychological and/or mental health counselling.
• You'll sign any and all releases as required by the probation office to monitor your attendance and progress at any such counselling, treatment or therapy programs.

Note on Vulnerable Sector Restriction

The Court is specifically not imposing an additional condition as part of probation that you not work with a vulnerable sector. The imposition of a criminal record will in and of itself preclude you from having a passive vulnerable persons criminal records check. The Court finds that that in and of itself is a significant burden and is not imposing an additional condition as part of a probation order. It is part of the conditional sentence, however.

Victim Fine Surcharge

The Court is waiving any victim fine surcharge given that you are a person of modest means.

Approved on September 10, 2013

The Honourable Madam Justice Perkins-McVey

Certificate of Transcript

I, Melanie Lauzon, certify that this document is a true and accurate transcription of the recording of R. v. Rey Lozada in the Ontario Court of Justice held on Thursday, June 6, 2013 at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411-11-20130606, courtroom 11, which has been certified in Form 1.

Date: April 3, 2014

Transcriber: Melanie Lauzon

Photocopies of this transcript are not certified and not authorized unless affixed with the original signature of the reporter.

Ontario Regulation 158/03 – Evidence Act