WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2015-09-18

Court File No.: Brampton 13-11409

Between:

Her Majesty the Queen

— AND —

Kelvin Drost

Before: Justice J.M. Copeland

Heard on: July 20, 22, 27, 28, 2015

Reasons for Judgment released on: September 18, 2015

Counsel:

• Mr. Tyler Powell — counsel for the Crown
• Mr. Ayderus Alawi — counsel for the accused Kelvin Drost

REASONS FOR JUDGMENT

Introduction

[1] Kelvin Drost is charged with failing to provide the necessaries of life to his spouse, Deborah Drost, contrary to s. 215(2)(a) of the Criminal Code of Canada. The circumstances of the case are very sad, and speak to the hardships of living with a long term, degenerative illness, both for the person with the illness, and the spouse who cares for him or her. Ms Drost suffered from multiple sclerosis for many years prior to her death. Over the years, her condition, her mobility, and her ability to care for herself worsened dramatically. It is clear that Mr. Drost cared for her assiduously for many years. The legal and factual issues in this case arise out of his care for her in the last approximately 20 months of her life, and more particularly the last few months.

[2] Mr. Drost's preliminary inquiry proceeded before me over four days. Submissions regarding committal were made in writing. These are my reasons on the issue of committal for trial.

[3] The evidence led by the Crown at the preliminary inquiry fell into three broad categories: 1) evidence from co-workers of Mr. Drost in relation to what he had told them, and what they had seen, of his care for his wife over the years, as well as evidence in relation to a possible relationship with Diane Moniz, also a co-worker; 2) evidence from the EMS workers involved on the night of Ms Drost's death (the night of August 28/29, 2013), which consisted primarily of their observations of Ms Drost's body and the apartment, their observations of Mr. Drost, and some statements by Mr. Drost (defence conceded voluntariness for the purposes of the preliminary inquiry); and 3) medical evidence from the attending Coroner, Dr. Hanif Kassam, from the Forensic Pathologist who performed the autopsy on Ms Drost, Dr. Toby Rose, and from the neurologist who treated Ms Drost's multiple sclerosis as a specialist from 2002, Dr. Morgenthau. The medical evidence included the autopsy report, and photographs of Ms Drost's body at the time EMS attended the apartment. I will not summarize all of the evidence, but will refer to portions of it in relation to the elements of the offence.

1. The Elements of the Offence

[4] The Information refers to s. 215(2)(a) of the Criminal Code. Section 215(2)(a) contains two distinct offences. In submissions, Crown counsel specified that the Crown was relying on s. 215(2)(a)(i). The elements of the offence under s. 215(2)(a)(i) are as follows:

(i) That the defendant was under a legal duty to provide the necessaries of life to the person it is alleged he failed to provide necessaries of life to. In this case, pursuant to s. 215(1)(b), this issue turns on whether the defendant was Ms Drost's spouse.

(ii) That the person was in destitute or necessitous circumstances.

(iii) That the defendant failed to perform the duty to provide that person with the necessaries of life.

For the third element of the offence to be proven, the actions (or inactions) of the defendant alleged to be the failure to perform the duty must constitute a marked departure from what a reasonably prudent person would do in the circumstances. In addition, lawful excuse is a defence: R. v. S.J. (2015), 124 O.R. (3d) 555 at paras. 47-70 (ONCA). For the purposes of this case, it is sufficient to observe that food and timely medical attention constitute necessaries of life, and that a person being in need of medical attention can constitute necessitous circumstances: R. v. S.J., supra at paras. 50, 59-67.

2. Positions of the Parties

[5] Crown counsel takes the position that the test for committal is met on all of the elements of the offence. I will not summarize every aspect of the Crown's argument, but briefly, the Crown argues that the evidence led at the preliminary inquiry would allow a reasonable jury, properly instructed to draw the following inferences:

(i) That Ms Drost was in necessitous circumstances due to the severity of her multiple sclerosis in the time leading up to her death; due to the evidence that she was no longer mobile and was completely dependent on assistance to move, eat or use the bathroom; and that in the year prior to her death, Mr. Drost was her sole caregiver.

(ii) That although the evidence supports that Mr. Drost was an excellent caregiver prior to 2012, the Crown argues that the evidence permits the inference that in 2012 and 2013 Mr. Drost failed to provide Ms. Drost with the necessaries of life. In particular, the Crown relies on the evidence that Ms Drost weighed only 52 pounds at the time of her death, was extremely emaciated, had no fat on her body, and appeared to be suffering from dehydration. The Crown further relies on Dr. Rose's opinion that Ms. Drost's emaciated state compromised her ability to fight the pneumonia and osteomyelitis that caused her death, and Dr. Kassam's opinion that malnutrition was a contributing factor in her death. The Crown also relies on the number, severity and infected state of Ms Drost's bedsores, and Dr. Rose's opinion that that the infection was one of the causes of death.

(iii) That it would be reasonable for a trier of fact to infer that Mr. Drost's actions showed an intention to abandon his caregiving role. In particular, the Crown relies on evidence that homecare was allowed to lapse, that Mr. Drost had not taken Ms Drost to see Dr. Morgenthau since January 2011, despite his admitting to EMS staff that he had noted significant weight loss in the months preceding her death, and that (in the Crown's submission) he delayed seeking medical assistance by choosing to drive to the EMS station rather than call 911.

(iv) That a trier of fact could infer that Mr. Drost had developed a romantic interest in Diane Moniz that diminished his intention to care for Ms Drost.

(v) That there was no evidence that Ms Drost wished to end her life. She did not have a do not resuscitate order on her file, she had never discussed and end of life plan with Dr. Morgenthau, and Dr. Morgenthau said she was a "glass half full" kind of person, and never complained of depression.

[6] The defence argues that the test for committal is not met. The defence argues that Mr. Drost was caring for his wife, who was in advanced stages of multiple sclerosis. The defence argues that there are inferential gaps that do not permit that court to find that a reasonable jury properly instructed could conclude that the offence is proven beyond a reasonable doubt. I understand the defence position that "Mr. Drost took the necessary steps to provide her with the care she needed" to be an argument that the Crown does not meet with committal test on the element of the offence that he failed to perform his duty to provide his wife with the necessaries of life. In particular, the defence argues:

(i) That several of Mr. Drost's co-workers testified about Mr. Drost speaking to them about the day-to-day realities of caring for his wife, and that he would often leave work during the day to care for his wife.

(ii) That Dr. Rose testified that although the bed sores were severe, it was possible that they could have developed to that stage in as little as a few hours.

(iii) That Dr. Rose testified that in her opinion the stiffness in Ms Drost's body was due to flexion contractures (flexor spasms) as a result of the multiple sclerosis, and not rigor mortis (and that the EMS workers and the attending Coroner were wrong in their view that rigor mortis had set in);

(iv) That Dr. Rose testified that no inferences could be drawn from the fact that Ms. Drost's stomach was empty because there is too much variation in digestion time (contrary to the view of Dr. Kassam). Dr. Rose also agreed that the pink gelatinous substance found in Ms. Drost's mouth could be Ensure (nutrition drink). A number of Ensure bottles were noted in the apartment by paramedics and Dr. Kassam.

(v) Dr. Morgenthau testified that Mr. Drost always attended Ms Drost's medical appointments and was active in ensuring that she received the care she needed.

(vi) The defence also argues that no useful inferences can be drawn from the fact that Mr. Drost went to the EMS station rather than calling 911, and that individuals act differently in moments of stress.

3. The Test for Committal

[7] Section 548 of the Criminal Code mandates a committal if there is "sufficient evidence" to put the accused on trial. The test for sufficiency is the Shephard test: any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict: United States v. Shephard, [1977] 2 S.C.R. 1067.

[8] Assessing the quality and the reliability of the evidence is not permitted at this stage of the proceedings; rather, the Crown's case is to be taken at its highest in those respects.

[9] The test for committal is the same whether the evidence is direct or circumstantial. However, the nature of the preliminary inquiry justice's task varies, depending on whether the Crown's case is based entirely on direct evidence or whether the Crown's case relies on circumstantial evidence. Where there is direct evidence of all of the essential elements of the offence, the task of the preliminary hearing justice is straightforward: there must be a committal for trial. The task is more complicated when the Crown relies on circumstantial evidence: R. v. Arcuri, 2001 SCC 54 at paras. 22-23.

[10] Where the Crown's case includes circumstantial evidence, the justice must engage in a limited weighing of the whole of the evidence, including any defence evidence, in order to determine whether a reasonable jury properly instructed could return a verdict of guilt of the charge alleged or of any lesser offence. While this weighing does not require consideration of the inherent reliability of the evidence itself, the preliminary inquiry justice must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence.

[11] To answer this question, the justice is required to engage in a limited weighing of the evidence, because with circumstantial evidence, there is, by definition, an inferential gap between the evidence adduced and the fact sought to be established. The issue is whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. It is for the jury to determine if the inferences should actually be drawn, but it is for the preliminary inquiry justice to determine whether the inferences alleged may reasonably be drawn.

[12] When determining if inferences may reasonably be drawn, the preliminary inquiry justice must weigh the evidence in a limited way. If the evidence is not rationally capable of supporting the inferences the Crown seeks to have drawn, it is not sufficient evidence to warrant committal.

[13] As noted by Ducharme J. in R. v. Munoz, [2006] O.J. No 446 (ONSC) at para. 29, courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. At para. 31 he explains that "...the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as a basis for a reasonably drawn inference."

[14] In R. v. Charemski, [1998] 1 S.C.R. 679, McLachlin J., as she then was, stressed the relationship of the sufficiency test to the principle of reasonable doubt. She explained at paragraph 30:

First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[15] The courts have also made clear that for an inference to be reasonable, the inference does not need to be "compelling" or "easily drawn": see R. v. G.W., [1996] O.J. No. 3075 (C.A.) at para. 62; R. v. Katwaru, [2001] O.J. 204 (Ont.C.A.) at paras. 39-41; Munoz, supra at para. 21.

[16] Moreover, any competing inferences are for the jury to resolve; it is jurisdictional error for a preliminary hearing judge to weigh competing inferences or choose among them: R. v. Campbell, [1999] O.J. 4041 (Ont. C.A.) at 165; R. v. Montour, [2002] O.J. No. 141 (Ont. C.A.) at paras. 3-5. Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74, at para. 18.

[17] In effect, in this case where committal is contested on issues relating to circumstantial evidence, I must decide whether the inferences the Crown seeks to rely on are speculative, in which case they are not open to a jury and I must discharge, or if the inferences are ones that a reasonable jury, properly instructed could draw, even if they may be viewed as perhaps weak inferences.

4. Analysis

[18] I find that on the evidence led at the preliminary inquiry, it would be open to a properly instructed jury acting reasonably to find that all three elements of the offence are proven.

[19] The defence does not appear to contest the first two elements of the offence. There is no dispute that Mr. Drost was Ms Drost's husband. There was evidence from which a jury could draw that inference, both from Mr. Drost's statements to the EMS workers, and from his co-workers.

[20] The defence also does not appear to dispute that it would be open to a reasonable jury, properly instructed to find that Ms Drost was in necessitous circumstances; although the written submission does not expressly concede this point. I find that it would be open to a jury to find that Ms Drost was in necessitous circumstances. The evidence from Dr. Morgenthau and Dr. Rose in relation Ms Drost's multiple sclerosis, and the evidence of Mr. Drost's co-workers regarding statements he made about her condition would allow a jury to make this finding.

[21] Dr. Morgenthau is a specialist in neurology. He had treated Ms Drost for her multiple sclerosis since 2002. He saw her as a consulting specialist. As a result, his appointments with her were annual or less frequent, except when there was some issue that warranted more frequent visits. Ms Drost had been diagnosed with multiple sclerosis in 1990. When she first saw Dr. Morgenthau in 2002, she had difficulty walking and used a walker or two canes. She had spasms in her legs and spasticity, which affected her walking. Over the years Dr. Morgenthau treated her, her condition progressively worsened, which was the expected course with the type of multiples sclerosis she suffered from. He gave evidence of her condition over the years. By the time he saw her in January 2010 and again in January 2011, her legs were spastic, she was in a wheelchair, her right hand was totally non-functional, and she needed assistance for transfers, such as from bed to wheelchair, or wheelchair to toilet. He had no notes of her having trouble swallowing at that time, but said that symptom would not be surprising in someone with late stage multiple sclerosis. He did not see Ms Drost after the appointment in January 2011 (discussed further below).

[22] Dr. Rose, the Pathologist who did the autopsy, gave the opinion in the post-mortem report and in her testimony that the post-mortem examination of Ms Drost confirmed the diagnosis of multiple sclerosis. In addition to certain findings in the brain, there were severe flexion contractures (the inability to straighten joints) of the elbows, hips, and knees, which can be due to long-standing neurological disorders like multiple sclerosis. She further opined that severe flexion contractures can limit activities such as ambulation, sitting, and activities of daily living such as feeding oneself.

[23] The evidence from a number of Mr. Drost's co-workers of statements he had made to them about his wife's condition also supported that she was in necessitous circumstances. For example, one co-worker reported that, in discussing the care he provided to his wife, Mr. Drost told him that she had trouble swallowing and he had to massage her throat and make her special food for her. Similarly, another co-worker reported that Mr. Drost said she had trouble swallowing, and he had to give her drinks for food.

[24] In light of the evidence that Ms Drost was no longer mobile on her own, and thus could not feed herself or get to the bathroom by herself, I find that it would be open to a reasonable jury, properly instructed to find that she was in necessitous circumstances.

[25] On the final element of the offence, I find that it would be open to a properly instructed jury, acting reasonably, to find that Mr. Drost's conduct constituted a failure to perform his duty to provide the necessaries of life, and a marked departure from what a reasonably prudent person would have done in the same circumstances.

[26] I base my conclusion that this inference is open to a jury on the following evidence:

(i) Ms Drost weighed 52 pounds at the time of her death, at an estimated height of 4' 10". The evidence of Dr. Rose, the pathologist, was that she was emaciated. There was no fat on her body. This expert evidence is confirmed by the photographs of Ms Drost's body at the time of her death.

(ii) One of the EMS workers testified that she asked Mr. Drost if Ms Drost had had any significant weight loss, and he said that, yes, she had had significant weight loss in the last month.

(iii) The severity of the bed sores/infection. Dr. Rose testified that Ms Drost had at least 15 bed sores, and three of them had osteomyelitis at the bone, which is an infection.

(iv) Ms Drost had pneumonia in her left lung.

(v) Dr. Rose testified that the cause of death of Ms Drost was sepsis, due to pneumonia and osteomyelitis, due to multiple sclerosis. Sepsis is a widespread infection which occurs when bacteria from an infected part of the body moves into the bloodstream. Osteomyelitis is an infection of the bone. In very summary form, Dr. Rose's opinion was that the infection of the bones and skin caused by the bed sores and the pneumonia in the lungs turned into sepsis when the infection spread to the bloodstream. Although Dr. Rose agreed in cross-examination that the underlying cause of death was the multiple sclerosis, I find that it would be open to a reasonable jury, properly instructed to find that Mr. Drost failed to take steps which could have possibly prevented or in any event better treated the bed sores and sepsis.

(vi) Dr. Rose also testified that the severe emaciation was relevant to cause of death in two ways: first, if a person is emaciated, their immune system does not work, so they are more likely to get a severe infection; second, if an emaciated person gets a severe infection, they are less able to fight it.

(vii) Based on the evidence led at the preliminary inquiry, it would be open to a jury to find that steps could have been taken to provide care and treatment for both the emaciation/weight issues and the bed sores, preventatively and to address these issues once they developed. Based on the evidence led at the preliminary inquiry, such potential care/treatment included: hospitalization, more treatment for the bed sores, moving Ms Drost (which she was unable to do herself) to try and prevent bedsores, and in relation to her extremely low weight, feeding assistance or a feeding tube.

(viii) Further, based on the evidence led at the preliminary inquiry, it would be open to a jury to find that Ms. Drost had not seen her neurology specialist, Dr. Morgenthau, since January 2011 (19 months before her death). Dr. Morgenthau said his last appointment with Ms Drost was in January 2011. One of the EMS workers said that when she asked Mr. Drost about when Ms Drost had last seen a doctor, he answered that the last time was January "last year". It would also be open to a jury to find that no homecare was being provided at the time of Ms Drost's death. One of the EMS workers testified that she asked about homecare, and was told that there was no homecare at that time because they were missing a signature for some paperwork. I address below the issue of Ms Drost's capacity and the relevance of the fact that if she had capacity to make decisions for herself, then she was free to refuse treatment, and Mr. Drost could not force treatment on her.

[27] In light of the evidence summarized above at paragraph 26, it would be open to a reasonable jury, properly instructed, to find that Mr. Drost failed in his duty to provide the necessaries of life, and that his failure constituted a marked departure from the standard of a reasonably prudent person in the circumstances. There is no doubt that Ms Drost's multiple sclerosis was progressively worsening, and would eventually take Ms Drost's life. But it would be open to a jury to find that a reasonably prudent person would have taken further steps, such as seeking medical attention with respect to the weight/feeding issues in light of Ms Drost's very low weight and recent weight loss, and with respect to the extremely severe bed sores, or seeking homecare to provide additional assistance to Ms Drost with these issues.

[28] I acknowledge that there is countervailing evidence on a number of the factual issues I refer to in paragraph 26 above. For example, Dr. Rose testified that she could not put a time frame on when Ms Drost's bed sores had formed. Bed sores can form in times from a few hours to a few days, and can become infected rapidly. She also agreed that bed sores are difficult to prevent in someone who is bedridden. She also testified that Ms Drost would not necessarily have shown symptoms of the pneumonia in her left lung in her advanced state of multiple sclerosis. Dr. Morgenthau gave the opinion that bed sores are not an uncommon complication for someone who is bedridden and with flexor spasms. He also testified in relation to the medical attention issue that at the time of the January 2011 appointment with Ms Drost, he would have booked an appointment for her in January 2012. There was a note in his file from his assistant in January 2012 saying that Ms Drost was not going to attend the appointment because she was under the weather and would call to reschedule. He said this was not unusual for his long term patients. He also said that Mr. Drost came with Ms Drost to every appointment, and was very active in making sure she got the care she needed.

[29] These pieces of evidence will, of course, be relevant to a trier of fact in assessing whether Mr. Drost failed in his duty and whether that failure was a marked departure. But given the severity of Ms Drost's emaciation, and the bed sores and level of infection, I find that it would be open to a reasonable jury, properly instructed to find that he failed in his duty.

[30] As the judge hearing the preliminary inquiry in this matter, I am cognizant of the fact that I probably have not heard all of the evidence that may be led at trial. The Crown may not have led all of its evidence, and I have not heard any defence evidence. Based on the evidence I have heard, although I find that the test for committal is met, it appears that this case is not clear cut on the merits for the eventual trial. A trier of might not be convinced beyond a reasonable doubt that Mr. Drost failed in his duty, in light of the progressively degenerative nature of Ms Drost's underlying multiple sclerosis. There appear to be live issues about how quickly Ms Drost's condition could have worsened, in particular the bed sores. Further, regardless of how quickly her condition worsened, if Ms Drost had capacity to make decisions for herself (and there was no evidence led before me suggesting that she did not), then she had the right to refuse treatment and to refuse food. I acknowledge the Crown's argument that there was some evidence pointing away from this (for example, the absence of a do not resuscitate order). However, there was some evidence in the form of statements reported from Mr. Drost that Ms Drost had refused some types of treatment, for example, refused to go to the hospital. Since this was her legal right if she was not suffering from incapacity, if a jury were to find that she refused treatment or were to have a reasonable doubt on that issue, the Crown would be unable to prove that Mr. Drost failed to meet his duty as a spouse to provide the necessaries of life, or alternatively, a refusal of treatment by Ms Drost would constitute a lawful excuse (see R. v. S.J., supra at paras. 49 and 55). Ultimately, these are issues for the trier of fact and do not detract from my finding that the test for committal is met.

[31] I also acknowledge that a person who has lived with their spouse's severe and long term illness for many years may come to accept certain circumstances as normal that from the outside appear as a lack of care. It will be for the trier or fact to determine the extent to which this factor may have relevance to how a reasonable person in Mr. Drost's situation would have acted, and whether his conduct constituted a marked departure from what a reasonably prudent person would have done in the same circumstances.

[32] I note that I have not referred to Dr. Kassam's evidence with respect to his opinions about the cause of death in these reasons. At the outset of his evidence, I qualified Dr. Kassam as an expert in medicine and clinical cause of death investigation. Having now heard his evidence, I have concerns about the scope of his evidence and whether he was really in a position to offer an informed opinion as to the cause of death. I accept that as a medical doctor he can be qualified as an expert in issues related to cause of death, although he does not have the same level of expertise as a doctor who is trained in Pathology. I accept that he can use his expertise in relation to his observations of Ms Drost's condition at the scene of the death. However, as he did not conduct the autopsy, I have concerns about whether he can give an informed opinion in relation to cause of death. I appreciate that it is not my role as the preliminary inquiry judge to weigh the evidence. But given my concerns about Dr. Kassam having strayed outside evidence that he had a factual basis to give, and given my conclusion that there is sufficient evidence for committal absent Dr. Kassam's opinion about cause of death, I have not relied on Dr. Kassam's opinions in relation to cause of death in my conclusion that the committal test is met.

[33] Although it is not my task as a preliminary inquiry judge to assess the credibility or reliability of the evidence, for what it is worth, I did not find the Crown's evidence in relation to the possible relationship with Diane Moniz as a motive to be very compelling. Based on the evidence led at the preliminary inquiry, the relationship between Mr. Drost and Ms Moniz did not sound like much more than a normal workplace friendship. Perhaps Mr. Drost was interested in something more, although Ms Moniz was clear that she was not. But balanced against clear evidence of the many years that Mr. Drost clearly cared for his wife, I did not think this evidence takes the Crown very far in its case. But evidence of motive is not essential to the offence or for committal.

[34] Similarly, I did not find the evidence that Mr. Drost went to the EMS station when he discovered his wife was dead, rather than calling 911, compelling. It was uncontested that the EMS station was next door to his apartment building. The evidence led at the preliminary inquiry in relation to time of death and what Mr. Drost told the paramedics and police about when he discovered that Ms. Drost was dead appear to be consistent with him going to the EMS station quickly once he realized Ms Drost was dead. It seems common sense that whether Mr. Drost phoned 911 or attended at the EMS station, in making the report he must have realized that EMS would attend at the apartment to examine his wife's body. And since the EMS station was next door to the apartment, it is also hard to see how going there rather than calling 911 would cause any delay in responding. Thus, it is difficult to see what useful inference could be drawn from the fact that he attended at the EMS station rather than calling 911.

[35] I find that the test for committal is met because, given the severity of Ms Drost's circumstances (her complete lack of mobility, her weight, the very severe and infected bed sores), it is open to a jury to find that she was in necessitous circumstances, that Mr. Drost failed to provide necessaries of life (sufficient feeding and medical care), and that that failure was a marked departure from what a reasonably prudent person would have done. However, it seems to me that it is also open to a reasonable jury, depending what evidence is led at trial, have a reasonable doubt about whether Mr. Drost failed in his duty to the level of a marked departure, or to find that Ms Drost refused treatment. But my task as the preliminary inquiry judge judge is not to weight the evidence and draw the ultimate conclusion as to whether the Crown has proven charge beyond a reasonable doubt. My task is simply to ask whether a reasonable jury properly instructed could reach a finding of guilt on the record before me. For the reasons given above, I find that they could.

[36] Mr. Drost is committed to trial on the one count charged. In light of the Crown's position in submissions that it was proceeding pursuant to s. 215(2)(a)(i), I direct that the committal to trial is only with respect to that subsection.

Released: September 18, 2015

Signed: "Justice J.M. Copeland"

Footnotes

[1] Although Justice McLachlin, as she then was, dissented in the result in Charemski, there was no disagreement between the majority and the dissent regarding the test for committal. The statements regarding the test for committal by the dissent in Charemski were subsequently approved by a unanimous Supreme Court in R. v. Arcuri, supra at paras. 27-28.

[2] I acknowledge that there was limited evidence at the preliminary inquiry as to why the home care lapsed. In particular, two of the EMS workers gave evidence that Mr. Drost made a statement to the effect that there was no homecare because a signature was missing on some forms. But it was not clear whether the missing signature was that of Mr. Drost or Ms Drost. The reasons that the homecare lapsed are an issue that could be explored at trial in relation to whether Mr. Drost failed to perform his duty to provide the necessaries of life. This possibility does not affect my conclusions with respect to committal for trial.