COURT FILE NO.: 10-0401

DATE: 30/08/2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JERRY HAWLEY

Accused

Alan Findlay and Claudette Breault, for the Crown

Michael J. O'Shaughnessy and Robert A. Barr, for the Accused

Sentencing decision

JUSTICE L. RATUSHNY

1. Introduction

[1] On February 14, 2013 after a jury trial, the accused, Jerry Hawley, was found guilty of manslaughter in connection with the death on May 26, 2008 of his brother, Jamie Hawley. Jamie died because the accused failed to provide him with the necessaries of life. The jury found the accused not guilty of the charged offence of second degree murder.

[2] The charge of second degree murder and the jury’s manslaughter verdict were each grounded in s. 215 of the Criminal Code that creates an offence for failing to provide the necessaries of life. The relevant portions of s. 215 are as follows:

s. 215. (1) Everyone is under a legal duty…

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if…

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

[3] After all the evidence had been heard, the jury was instructed that the accused agreed:

a) his brother Jamie had been under his charge because Jamie, as a physically and mentally challenged person, was unable to withdraw himself from that charge and was unable to provide himself with necessaries of life;

b) necessaries of life include those necessaries that tend to preserve life: food, shelter, adequate care, medical treatment of health conditions that require treatment, protection from harm;

c) he had been under a legal duty to provide Jamie with necessaries of life;

d) he had failed to perform that duty as his conduct towards Jamie had represented a marked departure from that of a reasonably prudent person in his circumstances;

e) he had no lawful excuse for his failure;

f) his failure endangered Jamie’s life;

g) a reasonable person in his circumstances would have foreseen that this failure to perform the duty to provide necessaries of life to Jamie would lead to a risk of endangerment of Jamie’s life; and

h) his failure to perform his duty to provide necessaries of life to Jamie was a significant contributing cause of Jamie’s death.

[4] The only question for the jury to determine was whether in the charged period of time, namely between September 1, 2006 and May 27, 2008, the accused had a state of mind required for murder. By their verdict of manslaughter, their answer was no.

[5] The trial evidence was from Crown witnesses, exhibits and admissions. The accused chose not to present any evidence.

2. The Facts

[6] Jamie was 41 years of age when he died on May 26, 2008. He had been living with the accused, his younger brother, for eight years since 2000. The accused, taking Jamie, had moved from Picton to two residences in Belleville and finally to Prescott, over these eight years. The causes of Jamie’s death as stated in the autopsy report were “pneumonia, starvation and infected sores in a man incapacitated by an old head injury”.

[7] Jamie was not dealt very many favours during his short life. So as to fully appreciate the extent of the accused’s neglect of Jamie during the eight years he had Jamie under his charge, it is important to tell some of Jamie’s story of his life before he went to live with the accused, and then after.

[8] It is a tale of a young man with serious physical and mental disabilities who was taken in by his brother for his disability benefits and who ended up being ignored, neglected, degraded, tortured and starved.

[9] It is a harrowing account of extreme neglect that should never have happened. It is a cautionary tale and I recite some of its details, in part for the lessons able to be gleaned from it. With the benefit of hindsight, clear warning bells were being sounded between 2000 and 2008 and yet Jamie continued to be neglected, and died.

a) Jamie - Before Going to Live with the Accused

[10] Jamie’s head injury had occurred when he was shaken as a baby at 3 months of age, allegedly by his father. He suffered immediate brain damage resulting in severe and permanent physical and mental disabilities. He had to go through a series of operations to try to deal with the physical consequences of his brain injury. He was left with spastic quadriplegia, cerebral palsy, a dislocated hip and scoliosis. He was confined to a wheelchair. At 30 years of age he was described as having the intellectual abilities of about a 5 to 7 year old.

[11] Between 1982 and 2000 when Jamie was between the ages of 16 and 34, he was under the care of Kingston Community Living (KCL) including with Peter Sproul, Stephen McKellar, Christopher Elderkin and Nicole Kay. These dedicated caregivers described Jamie as having intensive needs and requiring full-time one on one support. They said there was no question that he could feel pain and they remember him expressing pain when he had had blisters and sores on his foot. While with KCL he had staff support at all times except overnight. Medical appointments were routine and Jamie had few health problems aside from some foot infections and not brushing his teeth well.

[12] His KCL caregivers described how Jamie required and had a bar at his bedside to transfer between bed and wheelchair and a bar at the toilet to transfer between wheelchair and toilet, as well as a lift to transfer him into and out of the bathtub. It wasn’t safe for him to use a bar for transfers on his own, however, as he would fall. He needed assistance with all his personal bathing from top to bottom, with all his hygiene requirements including after using the toilet and in brushing his teeth and his hair, with lifting many items, with cutting tough items of food and to get his clothes down and up and off and on. He had no trouble swallowing his food and he liked to eat and have snacks. He was not incontinent and did not wear a diaper. With support he could use the toilet. He could be left on his own but only for short periods of time. He had both a manual and electric wheelchair but he mostly used his electric chair when he was with KCL.

[13] Jamie had some behavioural issues that his KCL workers described as not being unusual and that would sometimes manifest themselves in rudeness, anger, aggression, stubbornness, deliberately wetting his bed, isolating himself in his room and not taking a bath. Staff would respect his decisions on those occasions but strategies would be employed, ultimately successfully, to try to convince him otherwise.

[14] Jamie loved people, social events, being around children at a school, being around employees at a radio station, loud rock music and electronics. He would often want to stay in his room and be obsessive about things he liked, particularly music and electronics. He loved taking any kind of electronics apart and he had a lot of electronic items that he often couldn’t put back together. He loved using a touch pad phone to call friends and to call a radio station to request songs. He loved being part of community events outside his residence.

[15] He was assessed as unemployable. He couldn’t read beyond some word recognition and could only write a few words. He would speak in a few words and short sentences and his speech was not clear. He had some concept of time and money and could understand simple instructions. He did not make critical decisions. He was not able to cook or to manage his finances on his own. He hated not being able to get around like others.

[16] Jamie was described as being likeable, fun, friendly, and having a great big laugh. He loved to laugh and joke around. He loved activities and participated in lots of outings.

[17] In the two years before Jamie went to live with the accused in June 2000, he lived at KCL’s Mowat Avenue Group Home. When he was there he weighed 130 pounds and never had bedsores or pressure ulcers.

[18] It was the accused who initiated the first contact with Jamie. As a child growing up, Jamie had been a Crown Ward with no access allowed to his parents. As a result of that status Jamie had not known he had a brother. He was delighted to learn that he had family. In late April 2000 Jamie told his caregivers that the accused wanted him to come to live with him.

[19] Because Jamie had such intensive needs, this request from the accused was unusual. Members of KCL wanted to make sure the accused understood Jamie’s needs, the full-time commitment that was required to look after him and the community services that were available to assist him in his caregiver role.

[20] Before KCL had been able to arrange a meeting with the accused, the accused was calling them about how much money Jamie had, saying that he needed Jamie to pay rent. At that time Jamie had a disability income of about $1700 a month, an amount that later changed to around $1300 a month.

[21] One evening before Jamie was to leave to live with the accused, his caregiver found him to be particularly withdrawn. She was concerned that the accused would need to understand how to deal with Jamie. She phoned the accused that evening to tell him how they dealt with some of Jamie’s behaviours such as aggression, bedwetting, bathing, frustration and fixation on electronics, so as to allow him to be better prepared.

[22] KCL then held a meeting with the accused in May 2000. They were very clear with him about the tremendous commitment and level of care required for Jamie. They reviewed with him all of Jamie’s requirements including for personal care, transportation, a wheelchair, meals, clinical and doctor appointments. They were careful to inform him about community services that were available to assist him and Jamie such as respite services, case management and home modifications to provide accessibility, including an offer to build an entrance ramp. They offered a back-up plan should the accused’s plan to care for Jamie not work out and said they would keep Jamie’s place at their Mowat residence open for him as long as possible.

[23] The accused listened. He seemed to understand the situation, seemed prepared to deal with all of Jamie’s needs and did not appear concerned by the challenges.

b) Jamie – After Going to Live with the Accused

[24] I begin the recounting of Jamie’s life with the accused at its end, so as to better understand the significance of the trial evidence of Jamie’s life in his eight years with the accused and how it was that Jamie deteriorated so significantly that he died of starvation and infected sores.

The Autopsy

[25] Eight years after going to live with the accused, Jamie died of pneumonia, starvation and infected sores. Pneumonia had been the immediate cause of death but starvation was a contributing cause as Jamie had been unable to fight infection because of his starved state and, in turn, the pressure ulcers, often referred to in lay terms as bedsores, had resulted from his incapacitation from his old head injury and prolonged immobilization.

[26] Jamie weighed 57 pounds at the time of his death. He was extremely wasted. He had virtually no fat anywhere in his body even around his internal organs. His external body amounted to skin stretched over bones. There was no evidence of any disease causing malnutrition; there was only evidence of starvation. His clothes were clean.

[27] He had 33 pressure ulcers on his body, seven of which were the severest kind and right down to the bone, especially on his buttocks and right hip. Those ulcers were deep and crater like. The other pressure ulcers were on Jamie’s hip, buttocks, back and right shoulder.

[28] Some of the pressure ulcers had become infected and the bacteria had spread to his bones and eventually to his lungs, where the accumulated fluid and puss had led to pneumonia. Jamie’s left lung was much more infected than his right lung. Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario who performed the autopsy, said it was a valid inference to say that this was because during Jamie’s prolonged immobilization that had helped form his pressure ulcers, he must have been on his left side. This inference was also borne out by swelling around Jamie’s left eye and his left foot that was swollen up like a balloon at the time of his death.

[29] That Jamie had lived in a state of prolonged immobilization was borne out over and over again by trial evidence as reviewed below.

[30] Dr. Ronald Gary Sibbald, an internationally renowned Canadian expert on wound care who has seen many people throughout the world suffering with multiple wounds, said Jamie’s wounds were the most he had ever seen on a single patient. He said the most he had ever seen documented on one individual were 12 wounds. He characterized Jamie’s wounds as extreme and horrific.

[31] In Dr. Sibbald’s opinion from his review of Jamie’s history, when Jamie went to live with the accused in 2000, Jamie would have been at a relatively low risk to develop pressure ulcers because proper precautions and very simple interventions had been taken. He said a person in Jamie’s situation needed a specialized bed, a modified wheelchair to reduce pressure, friction and shear, turning in bed twelve times a day and placing bolster pillows to prevent him from rolling out of the turn position, smooth sheets and clothing to reduce friction and sheer, devices or people to facilitate lifts and turning, changing of clothes and wet surfaces within 30 minutes of an accident, increased protein, passive exercise to try to loosen up his left side contractures, no dragging of his body, a bowel routine including manual evacuation if required, physiotherapy, a lift sheet and protection of elbows and heels. Dr. Sibbald made the point that all of this is part of homecare in Ontario and is free. He also commented that a lot of these measures are common sense measures.

[32] However, as the trial evidence revealed and as summarized below, none of these measures were ever taken by the accused. It was never a situation of some of the common sense measures being utilized for Jamie some of the time that then drifted into disuse with the passage of time. It was always a situation of no measures ever being provided for Jamie.

[33] Dr. Sibbald said the pictures of Jamie at his autopsy show an absolutely bed-bound person with no muscle moving freely, indicating that Jamie could not do what his records had documented him as being able to do before, while with KCL and in his early years while living with the accused. Dr. Sibbald said that Jamie had been locked into his own body before death.

[34] Dr. Sibbald commented on some other sources of Jamie’s pressure ulcers. He said the manual wheelchair Jamie had always used while living with the accused was a disaster waiting to happen with its exposed pipes, ancient design, lack of a foot pad and worn seat and back surface. He said Jamie would have slid in it and would have experienced shear and friction that would have affected his buttocks. He said the wheelchair offered no pressure management whatsoever, so that it was really non-functional.

[35] For Jamie’s ulcer on the back of his right shoulder, as this is not an area of a lot of moisture, Dr. Sibbald said its cause was likely poor nutrition, friction and shear from transfers, and not being moved and being on his side in bed and in the wheelchair.

[36] For Jamie’s upper back and left lower back ulcers, their causes, he said, were more likely blunt trauma and skin tear, meaning caused by transfers and handling of Jamie.

[37] For Jamie’s deepest ulcers exposing muscle and bone on the right buttock and right lower buttock, Dr. Sibbald said these most likely had bacteria in them, one of the causes of the pungent and unpleasant odours that witnesses had smelled in Jamie’s room in addition to the smell of urine and feces, the smell of which on their own, he said, is much less unpleasant.

[38] Dr. Sibbald added that the significance of bacteria in Jamie’s pressure ulcers was that it had been a chronic infection that had been present for a long time. Trial evidence was that witnesses had observed the accused dragging Jamie to the bathtub and some had found him left there, unattended in cold water. Dr. Sibbald said that bathing ulcers such as Jamie’s in a bathtub just served to increase the bacterial soup and sponge bathing would have been better.

[39] Dr. Sibbald said the presence of bacteria and the pungent odour indicated that Jamie had required intravenous antibiotics for a long period of time together with requiring moisture control, transfers, packing of the wounds, intravenous protein, vitamins and minerals, physiotherapy and/or occupational therapy, pressure management, incontinence management and avoiding friction and shear.

[40] He said none of Jamie’s wounds that were at the deepest stage had the ability to heal over the last two years of Jamie’s life and to be helped, Jamie would have had to have been hospitalized two months before he developed pneumonia. Dr. Sibbald said these ulcers were caused by pressure, malnutrition, immobility, moisture, friction and shear and that the biggest source was probably Jamie’s wheelchair.

[41] Dr. Sibbald had reviewed Jamie’s medical records filed at trial, his KCL files and pictures, witness statements, the expert reports of Doctors Pollanen and Zlotkin, the latter a nutritional expert, and the autopsy photographs. His opinion from his review of Jamie’s history was that Jamie’s high-risk status for the development of pressure ulcers probably started in July 2005 when Jamie had visited a doctor regarding a swollen ankle, as this could have been an indicator of malnutrition and prolonged immobility at that time, almost three years before his death.

[42] Jamie’s medical appointment in July 2005 was, in fact, probably the last time he saw a doctor as OHIP records for him end on that date.

[43] Dr. Sibbald said it was not possible that Jamie’s 33 ulcers present at the time of his death had all appeared at the same time, as some were chronic or long term and others were more superficial and recent.

[44] Dr. Sibbald said Jamie would definitely have suffered severe pain from the ulcers and particularly the many infected and deep crater ulcers and his pain would have been in the form of gnawing pain, tenderness, throbbing, aching and a shooting or stabbing pain. He was not a paraplegic and had not had any loss of his pain sensation, although his ability to express pain may have been impaired because of his brain injury. Dr. Sibbald said a person in significant pain reacts differently to everything they do, for example, being unable to perform activities, eat as before and becoming withdrawn.

[45] Dr. Stanley Zlotkin, another internationally renowned Canadian expert, in the field of nutrition and malnutrition, said that at his death Jamie was severely, severely malnourished and it would be hard to find a worse case. He said he had seen the equivalent, but very, very few. He said Jamie was an example of the severest type of malnutrition one could have and one would not in a clinical career ever expect to see someone like this in North America.

[46] Dr. Zlotkin commented that Jamie’s autopsy pictures were very dramatic and indicated bones and skin and not much more, including very little muscle. He said the body’s fat in the buttocks tends to be the last to go but even there, Jamie had no fat left. He said Jamie’s body had no more fat to lose as it had consumed all of its fat reserves in trying to survive. Jamie’s body mass index was 12.3 when he died. In 2000 when he left KCL at a weight of 130 pounds, his body mass index had been 29.1.

[47] Dr. Zlotkin said Jamie’s severe malnutrition at the time of his death was likely of nutritional origin and Jamie had likely been chronically deprived of food. He said this would not have happened overnight and Jamie would have looked similar to his autopsy photographs, at 57 pounds and a body mass index of 12.3, for one to two months before his death.

The State of the Accused’s Residence on the Day After Jamie’s Death

[48] A videotaping and photographs of the accused’s residence in Prescott on May 27, 2008, the day after Jamie’s death, showed a two-storey home with evidence of recent cleaning having occurred and the smell of bleach. This was corroborated by one of the accused’s step-daughters, who testified that the accused had telephoned her to help him clean the house after Jamie’s death so the two other children living with him and Lisa, he said, wouldn’t be taken away by the Children’s Aid Society (CAS) and police as had occurred before. This was also corroborated by the accused who told police that he and his spouse Lisa had cleaned the house after Jamie’s death.

[49] Notwithstanding the cleaning, the story told by the pictures is clear.

[50] Jamie’s room, as had been the case at their previous Belleville residences, was on the second floor. There was no entrance ramp and no stair glide for him. Nothing was accessible for Jamie, not even the upstairs bathroom. There is some evidence he might have been able to leave his bedroom or, perhaps go no further than his bedroom door, but there was nowhere else he could go on his own in his wheelchair other than around his small room that was so small it would not have allowed for very much movement. There were no bars or other assistive devices anywhere in the home. Jamie’s worn and filthy manual wheelchair was in his room. A foul odour emanated from the wheelchair. An electric wheelchair was parked downstairs in the entrance hall closet with apparent dust on it.

[51] Jamie’s room was the smallest of the three upstairs bedrooms. The bed frame in his room was a simple metal frame that could be elevated at its end. The mattress on it was bare, filthy, stained, worn and thin, about five inches thick. There was very little in Jamie’s room and certainly nothing to indicate that he loved electronics. His walls were bare. There was only one ceiling light accessible by a wall switch that was nowhere near the bed. There was no bedside table. There was no clothing in Jamie’s closet. The satellite television feed for the rest of the house did not extend to Jamie’s room. In the room there was a clock radio, a combination radio and CD player and a VCR together with a television missing its plastic control knobs. There were no cassettes or CDs. An open can of a meal supplement was present. There was filth behind the mattress and staining on the near wall. His dresser drawers were empty except for one shirt. The middle drawer was very dirty. One of the accused’s stepdaughters testified that Jamie would hide his fecal stools in the dresser drawers or under his bed and there was no toilet routine for him. Another can of a meal supplement was found on the floor. There was no telephone in the room.

[52] The full horror of Jamie’s life at its end was in the basement, in a large pile of stained and dirty laundry near the washing machine that smelled of feces and urine. Feces were found amongst the laundry, as were stains of Jamie’s blood, identified as his on a flat sheet. The laundry included bed sheets and clothing and because of their foul state, they are presumed to have been used by Jamie.

[53] The rest of the residence outside Jamie’s bedroom was quite affluent in comparison, containing televisions, a computer, a printer, large stereo speakers, three cordless phones, exercise equipment, comfortable furnishings, a full pantry and a full refrigerator.

The Trial evidence of Jamie’s Situation and the Accused’s Actions

[54] I summarize, in broad fashion only, some of the other trial evidence from witnesses who had observed Jamie’s situation while he was living with the accused from 2000 to his death. It serves to demonstrate the extent of the accused’s neglect of Jamie over those eight years.

Nicole Kay, for 2000 and 2001

[55] Nicole Kay was one of Jamie’s caregivers at KCL. She helped with Jamie’s move to the accused’s home in Picton in June 2000. She said they had to have two vans to move all of Jamie’s electronics, including over 50 cassettes and CDs, over 50 movies and albums, and two wheelchairs, one manual and one electric. She also made a referral for Jamie to be able to receive support services in Picton and filled out a document describing Jamie’s needs.

[56] Ms. Kay last saw Jamie almost 1 ½ years later, in November 2001, after the accused had moved from Picton to Belleville. She arrived unannounced at the Belleville residence. An unknown female person was there but neither the accused nor his wife or children were in the home. Jamie was upstairs and naked in his room in his manual wheelchair. There was the smell of urine. There were no bed sheets on the mattress. The room was empty and dirty with a puddle of urine on the floor. Jamie’s hair was dirty and it did not appear that he had bathed recently. He did not respond to her and she was unable to convince him to put clothes on. She did not see any of his belongings in the room. He had nothing to cover himself with. She was there for 30 minutes. She saw no means for him to get down the stairs. She wondered how he would get to the kitchen. She said what she saw of Jamie that day was out of character for him in her experience.

[57] This brief 30-minute snapshot of Jamie near the end of 2001 might well be regarded as being too isolated a snapshot to be considered as reflective of Jamie’s usual living conditions at the accused’s home. Unfortunately it was not. Others observed Jamie in similar conditions in subsequent years so that Ms. Kay’s observations in 2001 were a harbinger of more to come.

[58] Additionally, Ms. Kay’s visit was one of the few unannounced visits by health officials with Jamie over the years. This unannounced aspect, with the benefit of hindsight and the other trial evidence, gives additional credence to the conclusion that Ms. Kay’s observations of Jamie’s living conditions in November 2001, when health care professionals were not expected to visit, were an accurate reflection then and in the years to come.

Linda Duffy-Brown, for 2000 and 2001

[59] In 2000 and 2001, before Ms. Kay’s visit in November 2001 in Belleville, Linda Duffy-Brown who was with Prince Edward Association for Community Living, visited Jamie while he was still living with the accused in Picton.

[60] She had noted that their intake records indicated the accused did not want services for Jamie but she visited them anyway.

[61] She had three visits, all of them arranged in advance. She noted the Picton home was not wheelchair accessible at the time of her first visit however, it was better at the time of her second visit. Jamie’s bedroom was on the ground floor at the Picton residence.

[62] The accused repeated to her that he did not want her services at that time.

[63] On her third visit, Jamie told her he was depressed and bored with staying in the house all the time and he went nowhere and had nothing to do, and then he was excited when he heard from her that there were day programs he could attend. He told Ms. Duffy-Brown he wanted to be around people. He was wearing a diaper.

[64] Ms. Duffy-Brown explained funding for incontinence supplies to the accused and arranged one respite weekend for Jamie. She visited Jamie during that respite weekend while he was in a group home, on August 4, 2001. She said Jamie was grinning from ear to ear and told her this is just the best and he wanted her to leave as he had things to do.

Samantha Stacey MacDonald, for 2001

[65] In February 2001 until June 2001, Samantha Stacey MacDonald, a friend of the accused’s spouse, Lisa, moved in with them and their three children at their Picton residence. She was a single mom with two children and she knew the accused and Lisa needed financial help with the rent and their upcoming wedding.

[66] In the four or five months she was there she said Jamie only ever ate alone in his room, never with others. She never saw him outside or go on any trips with the family. She said he always smelled of urine and so did his bedroom. She heard the accused speak harshly to Jamie and call him a burden, a pain in the ass and stupid.

[67] She agreed she did not have a lot of time to observe Jamie and his interactions with the accused while she lived with him.

[68] She said Jamie looked healthy and well fed.

[69] She said he would soil himself during the day and he was not in diapers and would not be cleaned up until the accused came home from work. She said when she lived there the accused was usually out of the house early in the morning during the week.

[70] She heard the accused say that for financial reasons, it was good to have Jamie with them.

[71] These early threads of information of Jamie’s life with the accused – of having nothing to do, of being isolated, of being on his own, of being verbally abused, of being there for the availability of his monthly disability benefits, of being soiled by urine and feces and not being cleaned up and of the accused being away for most of the day – are repeated by other witnesses who saw Jamie in the years that followed.

Earl Munroe, for 2003

[72] In July 2003 after receiving an anonymous complaint about Jamie’s well-being, Earl Munroe, an employee with the Ontario Disability Support Program (ODSP) in Belleville, paid an unannounced visit to the accused’s Belleville residence in July 2003.

[73] The accused’s spouse answered the door and said Jamie was busy but to come back later. When Mr. Munroe returned a few hours later, Jamie was in his upstairs bedroom sitting on his mattress. There was very little in his room, no dresser or television and nothing on the walls. There was just a bed with no furnishings. He said Jamie was very small. He had his knees up to his chest and his hands were deformed and up to his chest. He was wearing only a tee-shirt and nothing on his lower body. He was non-verbal but very friendly. The accused was not home. There was no lift or stair glide. There were splotches on Jamie’s skin but Mr. Munroe saw no open sores.

[74] Mr. Munroe said he found it unsettling to see Jamie that way as in his experience most people with Jamie’s disabilities were in a group home.

[75] After his visit, Mr. Munroe contacted an agency to provide supports for Jamie so Jamie could have a better quality of life, including extra funding. Mr. Munroe said he was surprised these weren’t already in place. He told Lisa about the form a doctor would have to fill out for these extra supports and that it could be obtained from their ODSP office.

Jamie’s ODSP Benefits

[76] It was not until May 2005, two years later, that the accused, his friend Earl and Jamie attended the ODSP Belleville office to obtain a form for extra funding, for the purchase of incontinence supplies. In August 2005, the ODSP office received the form filled out by a doctor.

[77] Jamie had been receiving full funding from ODSP in the approximate amount of $1000 a month and then after August 2005 he received extra funding from the Mandatory Special Needs program (MSN) to bring his total income up to approximately $1300 each month. In the eight years Jamie lived with the accused, the accused always controlled and used Jamie’s income.

[78] There was one occasion during those eight years when ODSP suspended Jamie’s benefits, in September 2003. This caused the accused to promptly visit the ODSP office in October 2003, one week after Jamie’s deposit had not been received, to have the payments re-instated, as they were. The employee at the Belleville ODSP office also instructed the accused at that time on how to get a replacement wheelchair for Jamie as well as other benefits, at no cost to either of them.

[79] It was not until twenty-two months later, on August 30, 2005, that the form for a new wheelchair was returned to the appropriate agency and it was not until the summer of 2006 that Jamie received a new electric wheelchair. The trial evidence was that this new electric wheelchair, as for the one that had followed Jamie from KCL to the accused’s home, was rarely, if ever, used, notwithstanding that Jamie had preferred the electric wheelchair when he was with KCL. During his 2003 visit Earl Munroe said he saw a wheelchair outside in the backyard with rust on it.

Jamie’s Medical Appointments 2001 to 2005

[80] OHIP records of Jamie’s personal claim history indicate their last record for Jamie is dated July 12, 2005, corresponding with a medical appointment regarding swelling in Jamie’s ankles and the filling out of a form for incontinence supplies. Dr. Peter Johannsson, a family doctor in Picton, said he saw Jamie three times, in 2001, 2002 and the last time on July 12, 2005.

Earl English, for Spring to Fall 2005

[81] In the spring to fall of 2005, Earl English lived at the accused’s Belleville residence. He paid around $325 a month to the accused for rent. He said the accused was away most weekdays from 9:30 a.m. to 4:30 p.m. and when he came home after work, they, including Lisa, would smoke pot together in the upstairs master bedroom or in the basement.

[82] The testimony from Mr. English is particularly revealing for the summer period of 2005 and I summarize it in some detail.

[83] Mr. English said in his first couple of weeks of living and smoking pot at the residence, he didn’t even know Jamie was there and he was utterly surprised to see Jamie one day when he went upstairs to use the second floor bathroom. On that day the accused had been home all day. Jamie asked Mr. English for food or drink and Mr. English got it for him. The accused thanked him for feeding Jamie.

[84] Mr. English said Jamie looked very small and skinny and had limited mobility and only on his right side. Jamie was dirty, had a runny nose running into a knotted beard and his clothes were also very dirty. His wheelchair stank of urine.

[85] Mr. English said there wasn’t much food in the house and so whatever he fed Jamie was probably very simple, like bread and butter and water or coffee. After that, he would feed Jamie whenever he himself ate.

[86] He said Jamie asked him his name and remembered it on subsequent occasions.

[87] He said Jamie’s bedroom smelled of urine and feces and all that the bedroom had in it was a bed, a table, a soiled mattress and a black and white television.

[88] When Mr. English was at the residence, the only time he saw Jamie downstairs was on the day they visited the ODSP office. Jamie was dressed in clean clothes for that visit.

[89] He never saw the accused buy anything for Jamie. However he did see the accused buy himself a mini-bike, two ten-inch speakers for his car and a computer. He heard the accused say it was nice that Jamie’s money went towards his rent so that he didn’t have to pay rent.

[90] He described Jamie as not being interested in computer games, just in being with people. Jamie would sit at the top of the stairs and call down for people on the ground floor. He would do this quite a bit.

[91] Mr. English said when he talked with Jamie, Jamie would often ask where his brother was, about a support worker at KCL whom he had been fond of, and about where other people were. He asked for food a lot and to be put on the toilet. Mr. English said he did this for Jamie lots of time and had to pick him up and put him on the toilet and then clean him. There were no bars to allow Jamie to help himself. Jamie’s clothes were ragged, dirty and stinky, soiled with feces and urine. Mr. English gave Jamie some of his own clothes.

[92] When Jamie had accidents urinating or defecating when the accused was home, Mr. English said the accused would first yell at Jamie and be upset with him and then put him in the bathtub and leave him there for hours. The water would turn cold and Jamie would be wrinkly. He said the accused would be down in the basement getting high and drinking. The two of them, he said, grew their own marijuana in the backyard and in the basement.

[93] On one occasion, Mr. English said he found Jamie alone in the house in the bathtub and the water was cold. He said he picked Jamie up and dried him off. The accused came home a couple of hours later.

[94] On another occasion he recalled finding Jamie in his room drinking his urine out of a coffee cup. Jamie told him he was thirsty.

[95] Mr. English said Jamie’s arms had only limited mobility. His left arm stayed close to his body and he could extend his right hand a little with a bent wrist. He said Jamie’s feet were always swollen. He would use his right foot to move his manual wheelchair. Jamie used to run over his little baby toe with his wheelchair so that there were always spots of blood on the floor. Mr. English said he never saw an electric wheelchair in the house.

[96] Mr. English observed Jamie being left in his wheelchair. Often when he came home at 2 a.m. he would find Jamie slumped over in the wheelchair asleep, with his head on the television table in his room. Mr. English would then put him into his bed. He remembered one time when Jamie had been left naked in his wheelchair and Mr. English said it was very disturbing to see him in that state.

[97] Mr. English said Jamie would always be happy and have a smile. He never complained about anything, just about being hungry. He understood Jamie loved his brother and he knew Jamie was happy to have family. When he was there in the summer of 2005, he thought Jamie might have weighed around 110 pounds.

[98] Mr. English agreed that when he had lived at the Belleville residence, he had spent a lot of time getting high on drugs, but he disagreed that they had altered his mind. He said his memory of his time there was pretty good.

[99] He said he never saw Lisa taking care of Jamie and that she was always in the basement smoking dope with him and others.

[100] Mr. English said there was no landline phone in the house and the accused and everyone else in the home used cell phones. There was no phone for Jamie and he remembered a few times when everyone was gone from the house, leaving Jamie alone and without the ability to call for help.

Estella Fencott, for Fall 2005

[101] In September 2005 Mr. English phoned in a complaint to South East Community Care Access that Jamie was being abused by his brother.

[102] Estella Fencott, a registered nurse with that office, responded and dropped by the Belleville residence ten days later, as no phone number had been left. She knocked on the door in the morning and there was no answer. The doors were locked and no lights were on.

[103] She was finally able to reach the accused on his cell phone and arranged a home visit in October 2005. At that visit Jamie was clean and free of odour. He was on the ground floor. The accused was present. She never went upstairs. The accused told her he was going to get cable television for Jamie and was interested in getting him a new wheelchair. He agreed to an occupational therapist attending to assess Jamie’s wheelchair needs, to a social worker looking for day programs for Jamie and to a personal support worker coming in twice a week to help.

[104] Ms. Fencott said she had never had a client as young as Jamie who was so without services.

[105] At the end of October 2005 after Ms. Fencott learned that the accused was no longer allowed to reside at the Belleville residence and Lisa was to be Jamie’s caregiver, she was concerned enough to arrange a second home visit. The accused was also present at that second visit.

[106] Jamie was upstairs in his room that she said was very small and sparse. His bedding was not clean. She said she was under the impression that the accused and Lisa would not leave her alone with Jamie and that they were influencing his answers. She said Jamie appeared anxious but not unhappy and he seemed in good health. He told her he didn’t get downstairs very often and ate in his room. She observed that he wouldn’t answer her questions without first looking at the accused and that most times it was the accused who answered for him.

Larry Coates, for Fall 2005 to Early 2006

[107] The personal support worker arranged by Ms. Fencott, Larry Coates, attended with Jamie for the first time in October 2005 and then about two more times before the accused told him in January 2006 that he was no longer needed. On a number of occasions, Mr. Coates attended at his pre-arranged time and no one had been home to let him inside the residence.

[108] When Mr. Coates was able to attend, his description of Jamie’s circumstances was similar to what Mr. English had observed. He also described cycles of the home being clean and then dirty and then clean again.

[109] He said that because Jamie had few clothes, he often had to put Jamie’s dirty clothes back on him after a bath and on the Fridays after his previous Tuesday attendance, Jamie would be wearing the same dirty clothes.

[110] He said Jamie deteriorated over the three months he had contact with him. At the beginning Jamie could balance on one leg and at the end he could no longer do this. Mr. Coates said this affected Jamie’s ability to look after his own personal hygiene. He said Jamie was not incontinent and when he had an accident it was because he couldn’t get to the toilet or use his urinal.

[111] He never saw Jamie on the main floor of the residence and neither did Jamie ever ask to be taken downstairs.

[112] He occasionally had to get Jamie breakfast and leave him something for lunch but the cupboards and the fridge were usually bare and there was little to make for Jamie.

[113] When he asked Jamie to ask the accused for clean clothing, Jamie said he would, but that his brother was very busy.

[114] Jamie told him he was glad to be at home instead of in an institution.

Jennifer Mills, for 2006

[115] The occupational therapist arranged by Ms. Fencott, Jennifer Mills, visited Jamie on five occasions in Belleville, in 2006. The accused was present for each visit and on each occasion Jamie was clean, as was his bedroom.

[116] At her first visit on February 23, 2006, his left foot was swollen and purplish and she suggested elevating it.

[117] She obtained a bath bench for Jamie and an electric bed, although when she was shown the pictures of Jamie’s mattress taken after his death, she didn’t think that was the mattress she had ordered in 2006.

[118] She had Jamie’s new wheelchair delivered in August 2006. She said Jamie’s manual wheelchair was old and worn and offered no postural support, foot support or pressure relief.

[119] All of this new equipment cost the accused nothing. She also completed an application for Jamie to use a mobility bus, to attend sheltered workshops and for a stair glide and a porch lift.

[120] As the evidence confirmed, Jamie rarely if ever used his new electric wheelchair even just to sit in, his left foot was not elevated, there was no sign of the presence of a bath bench and there were no stair glide or porch lift applications ever received by the responsible agencies from the accused.

The Children’s Aid Society, for 1997 to 2008

[121] The CAS in Belleville was often involved with the accused and his family between 1997 and 2006, ending in September-October 2006 when the family moved to Prescott. The CAS documented its attendances with and concerns about the family that included substance abuse, parenting skills, cleanliness of the home and adult conflict. It had determined that the accused had anger management issues.

[122] Jennifer-Lynn Hearns of the CAS in Belleville was directly involved with the family for one year beginning in October 2005. She visited their Belleville residence on a number of occasions. She only became aware that Jamie lived in the home just before the family moved to Prescott in the fall of 2006. She had gone upstairs to speak to the children in private and Jamie had opened a door and appeared.

[123] Jacqueline Monique Kuipers Heidinga was the family’s CAS worker in Prescott, between October 2006 and January 2008. She spoke of the continuing turmoil in the Hawley family and the many CAS interventions on behalf of the children.

[124] She made numerous announced and unannounced visits to their Prescott residence. She documented at least eight unannounced visits when no one appeared to be at home, in addition to numerous phone calls that went unanswered.

[125] She was aware Jamie lived there but notwithstanding that she was in the home every two to three weeks for that one year three month period, she said she only saw Jamie once.

[126] She received an anonymous complaint on February 14, 2007 about a man in a wheelchair at the Prescott residence and called the police to refer it to them.

Scott Hubbard, for Fall 2006

[127] Also in the fall of 2006, the accused’s Prescott landlord, Scott Hubbard, had contact with Jamie while Mr. Hubbard was changing the flooring of that residence over a period of 3 weekends. He said Jamie was mostly on the main floor with them when he was there and if they didn’t see him, he was in his bedroom. When Jamie was on the main floor, he said he thought that Jamie ate almost continuously.

Nelson Shaver, for Spring 2007

[128] In April and May 2007, Nelson Shaver, a brother of the accused’s spouse Lisa, lived with the accused at the Prescott residence. He slept on the living room couch. He said Jamie lived in the smallest upstairs bedroom.

[129] He said that every time Jamie heard someone coming up the stairs he would open his bedroom door and ask for food and every time Mr. Shaver saw Jamie, Jamie asked for food. Mr. Shaver would give Jamie food and drink and he said Jamie loved it.

[130] When he would tell the accused he had given Jamie some food, the accused would say that Jamie had just eaten and was always asking for food. Mr. Shaver would feed Jamie anyway and he wondered why Jamie was still hungry.

[131] When Jamie would open the door and ask him for food, he would hear the accused yell at Jamie to close the door and stop bugging people and company.

[132] Mr. Shaver said he never heard Jamie complain about the accused.

[133] Mr. Shaver said Jamie’s bedroom had a bed, no sheets and maybe a blanket and a dresser. Jamie would often have a pair of track pants on half way up just covering his privates and wearing nothing above his waist. Sometimes there would be a television in his room but not always. The room smelled bad, he said. He saw Jamie sleep in his wheelchair a couple of times.

[134] In April or May 2007, about a year before Jamie died, he saw Jamie in the bathtub lying on his side, shaking, making a whining sound and not saying anything. He then saw the accused come out of the master bedroom, where they had all been smoking pot, and make fun of Jamie’s two to four sores on his backside and hip. They were red and the size of loonies. Mr. Shaver said he felt disgusted.

[135] Mr. Shaver agreed he had smoked marijuana while he was at the Prescott residence but he disagreed that he hadn’t had a clear mind.

Tammy Shaver, for 2000 to May 2007

[136] Tammy Shaver, Lisa’s younger sister, spoke of Jamie’s deterioration after leaving Picton and moving to Belleville, where the accused had two residences, and then to Prescott.

[137] She said she only ever saw the accused interact with Jamie in a pleasant manner.

[138] In Picton, she said, things went very well. Jamie’s bedroom was on the main floor and he seemed to be happy and healthy. In Picton he was part of the family and part of the family’s conversation including with the three children, but when he was in Belleville, she said, not so much. In Belleville, the accused was always away in the daytime and if he was there, he wouldn’t talk about Jamie.

[139] In the Belleville residences, Jamie’s bedroom was on the second floor. She never saw him downstairs or outside, at either residence. If Jamie heard her he would call for her and she would go up to visit. She said she didn’t like the way he looked and he was losing a lot of weight. He smelled of urine. He only used a manual wheelchair. There was an electric wheelchair outside under a tarpaulin.

[140] She said Jamie had nowhere to go in his manual wheelchair, as he couldn’t get it into the upstairs bathroom because the frame was too narrow. She never saw him in an electric wheelchair.

[141] She said Jamie was always asking for food when he was in Picton and in Belleville, but not when he was in Prescott. She called the CAS and then a disability organization about Jamie’s wellbeing when he was in Belleville, but they each told her they couldn’t help and she understood there was no intervention.

[142] At the Prescott residence she saw that Jamie’s hands had closed up. She couldn’t get his smell off her hands when she held his hand.

[143] She last saw him in May 2007. He told her he was hungry when she held his hand. His pants were down to his knees and he was wearing a t-shirt but nothing on his privates.

[144] She said Jamie loved the accused to the end.

Joseph Hare, for Spring and Summer 2007

[145] Also in the spring or summer of 2007, approximately one year before Jamie died, another of the accused’s friends, Joseph Hare, worked for the accused and would sometimes return to the accused’s residence in Prescott after work to drink beer and smoke weed. They would do this in the upstairs master bedroom.

[146] He said it was only after a chance meeting with Jamie in the upstairs bathroom after he had been at the accused’s home for about three to four weeks that he even knew Jamie was living there. He went back to the master bedroom and asked the accused who Jamie was.

[147] After that first chance meeting, Mr. Hare would visit Jamie in his bedroom every day for about 5 minutes. He said the accused didn’t let too many people go into Jamie’s bedroom.

[148] At first, he said, Jamie had a radio and a mattress in his room and then later, he had no radio and no mattress and Jamie told him it was because he had had an accident and had made a mess. Mr. Hare interpreted this as amounting to punishment. After that, he said he only saw a bedspring and the wheelchair in the room. He never saw a television in Jamie’s room. The room always smelled of urine.

[149] Mr. Hare said he was with the accused when the accused took Jamie’s mattress to a car wash to clean it and then left it to dry on the porch.

[150] He also observed the accused step on Jamie’s bare feet as he was pulling him out of his wheelchair to put him in an ice cold bath. He heard Jamie say it was cold and the accused responding that if he kept “pissing” the bed he would get a cold bath. Mr. Hare interpreted this as another punishment.

[151] Mr. Hare said that you could tell that Jamie was very sick. He weighed about 100 pounds, he guessed. He leaned to the left humped over in his wheelchair and was very skinny and frail. He never sat up straight. He could only reach out with his crippled right hand. He looked really rough. His feet were always bare and they were large, blue and very damaged. They didn’t look human, Mr. Hare said.

[152] He said he hardly ever saw anyone go into Jamie’s room to socialize with him and he never saw Lisa or the children do that.

[153] Jamie always told him he was hungry whenever Mr. Hare went to talk to Jamie. Mr. Hare took him food a few times. He said Jamie acted like he was starving to death he would eat so fast.

Penny Easter, for Spring and Summer 2007

[154] Penny Easter, Mr. Hare’s spouse, also participated in the after-work smoking of marijuana in the accused’s upstairs bedroom at the Prescott residence. She would go when she knew Mr. Hare would be there, about two or three times a week beginning in April 2007. She agreed the Prescott residence was basically a party house.

[155] She described Jamie as being like a frail old man who was very sick and malnourished. He was always in his upstairs bedroom when she was in the residence.

[156] She heard Jamie asking for food but she said he would usually have to wait for the accused to come home from work to be given something to eat.

[157] She called a public health nurse about her concerns over Jamie’s care as she was disturbed over him being left alone day after day and not being cared for. She said she didn’t know how serious a situation it was for Jamie. She didn’t see him after September 2007.

Tammy Ditchburn, for September 2006 to September 2007

[158] Tammy Ditchburn had the Hawley family live beside her in Prescott between September 2006 and September 2007. They shared a residence wall. She is related to Lisa, the accused’s spouse and she knew Jamie lived in the Prescott residence.

[159] She saw Jamie inside the house on one occasion. She said she never saw him outside the house or in the yard or in the community during that year.

[160] She said she could hear moaning when she was on her second floor that would continue for a while, then stop and then start up again. She didn’t know if it was Jamie. She never heard music.

Gordon Deline, for December 2007 to Spring 2008

[161] Beginning in December 2007 until the spring of 2008, Gordon Deline, a relative of the accused’s spouse Lisa, moved to Prescott and visited the accused’s residence every four or five days where he, along with others, would drink alcohol and consume drugs in the upstairs master bedroom.

[162] Mr. Deline’s evidence is similar to that from other witnesses.

[163] He said Jamie was in the larger upstairs bedroom at that time and the whole upstairs smelled of urine and body odour.

[164] Jamie would sit in a position to be able to see everyone and he would call out and on numerous occasions would say he was hungry and could you get him something to eat.

[165] Mr Deline heard the accused respond, usually rudely and with profanity, such as “you just f-ing ate so shut up”.

[166] Mr. Deline said he had seen Jamie in Picton when he was pretty big, but by the time he saw him at the accused’s Prescott residence Jamie had lost a considerable amount of weight and you could tell that something was wrong.

[167] He never saw Jamie outside the Prescott residence.

Lynn Shaver, for Easter 2002 to Easter 2008

[168] Lynn Shaver, Lisa’s younger sister, testified that when the accused, Lisa and Jamie lived in Belleville in 2002, they had all been invited over to her home for Easter dinner. She said the accused hadn’t wanted to bring Jamie along because it was too hard, however she insisted and Jamie came and had a good time.

[169] She said Jamie loved people.

[170] She visited Jamie in Belleville and remembered one of the children being told to take her leftovers from her plate up to Jamie on the second floor.

[171] She said she last saw Jamie in the Prescott residence at Easter in 2008, which would have been a few months before he died. She described his room as like being in a sardine can. She said the smell was unbearable and Jamie told her he was indecent. She said he looked purple and draped over his bones, just awful. He had only a blanket over his legs and a coat lying over his top half. He looked like a skeleton with bones and purple skin. She guessed that he had, since the 2002 Easter dinner at her place, lost about 100 pounds. His bed had no sheets on it, just a blanket and a sleeping bag. His mattress was dirty.

[172] He touched her cheek and the smell stayed on her but she commented that it wasn’t his fault. She didn’t think he could use his fingers then. His feet were bent up towards his shins.

[173] She talked with him about the Easter bunny and he was excited about it.

[174] She said Jamie was lovable.

[175] Ms. Shaver said the accused told her after Jamie died that his buddy had finally passed away from a brain aneurysm and that they’d said he’d only last 5 years but he’d had him for 8. Ms. Shaver said she had never heard that before.

[176] Ms. Shaver said she made complaints to the Belleville Police about Jamie’s well-being on two different occasions, in 2002 and 2005. She understood the police had followed up and all had been reported to be fine.

[177] Three other complaints by other persons were made to the Belleville Police in this same time period.

Wayne Farley, for early 2008

[178] In the early winter months of 2008, just months before Jamie’s death, the accused’s second landlord of the Prescott residence, Wayne Farley, proceeded to replace all the windows.

[179] He remembered changing the windows in Jamie’s bedroom while Jamie was in his wheelchair in the centre of the room, wearing pajamas or a tracksuit and nothing else. It had to have been cold in the room during this process.

[180] He said Jamie was very pale and looked very small and frail and didn’t move during the two to three hours it took to change each window. Mr. Farley said Jamie was not “just fine”.

Taniaka Smith Hawley, for 2000 and 2006 to February 2008

[181] Taniaka Smith Hawley is one of the accused’s stepdaughters. She spoke of not having much of a relationship with the accused at the present time.

[182] She remembered the Picton house and how much Jamie liked living there and being part of the family. She said at first he would get out of the house to go outside and to the doughnut shop and the bank.

[183] She said when the family lived in Belleville she went into CAS care at 11 years of age and so she wasn’t around her family in Belleville.

[184] She did live with them in Prescott for a time, although she was often away. She described the family routine in Prescott, as she knew it, as her mother, Lisa, staying up all night, the accused working nights and perhaps one or two days each week, so that in the morning only the three children would get up and leave for school. She said her father would be home most days, sleeping. When she came back from school, Jamie would be upstairs in his bed in the bedroom or in his wheelchair.

[185] She said Jamie was upset because no one was there to take care of him.

[186] She said there were a lot of people in the home and there was a lot of drug use. As soon as her father returned home, he would also smoke pot.

[187] The house was a mess and chaotic, she agreed.

[188] Ms. Hawley described Jamie’s situation in Prescott. He had a dresser, television, bed and wheelchair. She said he always had a television when he wasn’t in trouble from dirtying himself. She said the accused used the television for punishment. Jamie had accidents at least three times a week. He only needed help getting on and off the toilet.

[189] He had no toilet routine. Instead he would come out of his room and yell that he had to go. A urinal was kept on his dresser. If Jamie had an accident, sometimes the accused would clean him right away and sometimes he would be angry and tell Jamie to sit in it.

[190] She said if Jamie had a bowel movement when the accused wasn’t there, Jamie would shove it under the bed or in his dresser.

[191] She said only the accused would bathe Jamie and sometimes one of the accused’s male friends. There were no bars for assistance for Jamie beside the toilet or his bed.

[192] There was an electric wheelchair but it sat downstairs in a closet and Jamie only ever sat in his manual wheelchair.

[193] She said her mother Lisa was in the home but she was not there to look after Jamie. This echoes the evidence from Nelson Shaver who said that when he was at the Prescott residence in the spring of 2007 he only saw the accused, and never Lisa, help Jamie. Joseph Hare said he never saw Lisa going into Jamie’s room or socializing with him when Mr. Hare was there in the same period of time. Penny Easter said the same.

[194] Ms. Hawley said Jamie was always hungry when they lived in Prescott. She said they all were. The pantry was locked and she would have to ask the accused or her mother for it to be unlocked. When she gave food to Jamie he was always gracious and thanked her and no matter what it was he would say, “That’s my favourite”.

[195] She saw sores on his buttocks and leg. They were red like a child’s rash and Jamie would say he was itchy. She had not seen sores on Jamie before they lived in Prescott.

[196] She last saw Jamie a few months before he died, in late February 2008. She said his odour was bad.

[197] She described the accused’s phone conversation with her after Jamie had died, at a time when they were barely talking to each other. The accused told her he wanted her to help him clean the house so “it was not looked at wrongly”, as he didn’t want the two girls taken away by the CAS and police.

[198] She said the accused told her that on the day Jamie died that he had put Jamie in the bathtub as always. In his statement to police on May 28, 2008, the accused said the same and that when he was dressing Jamie after his bath, Jamie’s breathing was bad and he had Lisa call 911.

Donna Frankland, for May 2008

[199] Donna Frankland lived beside the accused in Prescott in the adjoining unit, beginning May 1, 2008. She was a personal support worker, assisting people in their homes with whatever they needed.

[200] She first saw Jamie on Monday, May 26, 2008 when he was being carried down the steps of his Prescott home to an ambulance. She said she had no idea who Jamie was or that he had lived beside her.

[201] She heard the ambulance attendant ask the accused why he hadn’t called sooner and the accused’s response that he had been away for the weekend and had just returned. She said this accorded with what the accused had told her earlier, that he was going away to Belleville for the weekend. That weekend was the last weekend of Jamie’s life.

[202] She said Jamie was a skeleton with skin and it was the most horrific thing she had ever seen.

[203] She then told the accused that she was a personal support worker for the Canadian Red Cross. She asked him why he hadn’t asked for help as there was so much help out there. The accused responded that he didn’t like to bother people.

[204] The day after Jamie’s death the accused told her that without Jamie’s cheque, he had to move as he couldn’t afford to stay.

[205] She recalled a horrible smell coming from her basement in that first month that she identified as that of vomit and diarrhoea. She said it had permeated her entire residence. She had constantly complained of it to the landlord, together with her complaints about the accused’s dog that barked, howled and cried all day. She said the odour disappeared after the accused had moved away.

Dr. William Jonathan Wyatt, for May 26, 2008

[206] Dr. Wyatt, a family doctor and coroner at the time of Jamie’s death, spoke to the accused about two hours after Jamie had died.

[207] He filled out a Coroner’s Report in which he documented the accused’s comments to him: Jamie had hydrocephalus; he had taken Jamie from a Kingston group home as he had been unhappy with his care there; Jamie had seizures that were “not clinical”; Jamie could talk and could eat with his right hand; Jamie had been wasting for one month, spitting food for two weeks, and had bedsores for the last two weeks; Jamie did not want to go into hospital especially the day before; Jamie’s last medical contact was over 1 ½ years ago when they had left Picton for Prescott; Jamie had been having two “Ensures” a day, that the doctor commented on as amounting to 500 calories a day.

[208] None of the other trial evidence supports these statements by the accused to Dr. Wyatt other than the evidence of Jamie’s consumption of “Ensure”, a liquid food supplement and that Jamie could at one time eat with his right hand. Jamie’s last medical contact had been almost 3 years earlier.

3. The Accused

His Background

[209] A Presentence Report was filed. The accused is now 40 years of age. He did not have a good childhood. He was the youngest of four children and six years younger than Jamie. His father was a violent alcoholic. His mother separated from his father and subsequently remarried. However, the accused’s stepfather was also abusive, including towards the accused. The accused left his mother’s home when he was 13 years of age to live with his biological father. After one year, he left to live with his aunt and uncle.

[210] The accused has regularly worked at various jobs since 13 years of age. He graduated from high school.

[211] In 1995 he met Lisa and they married in 2001. Lisa has two children from another relationship and together they have a 17 year-old daughter, Keisha, who is independent. The CAS was frequently involved with the family when the children were under the age of 16 years.

[212] He has consumed alcohol and illegal drugs, primarily cannabis, since his late teens. He estimates his normal consumption was approximately eight beers and seven grams of marihuana every day amounting to a cost of approximately $50 each day. He has been in custody in connection with Jamie’s death since March 19, 2010 and says he has been clean and sober for the past 37 months that he has been in custody. He has never attended substance abuse counselling or treatment.

[213] He was convicted in September 1997 of uttering a threat to cause death and serious bodily harm, against his abusive stepfather defence counsel informs me, and in December 2006 of assault against one of his stepdaughters. He was given a conditional discharge and probation for each of these offences that he completed without incident so that he is left with no prior criminal record.

[214] His pre-trial and post-trial custody at the Brockville Jail has involved four incidents: the first on December 11, 2012 when he admitted to having brew in his cell but stated it belonged to his cell partner who had been transferred that morning; the second on February 12, 2013 of having provoked a fight in the dorm which he denied but was placed on misconduct; the third on April 11, 2013 regarding an altercation with another inmate and the fourth on April 13, 2013 when he was found guilty of misconduct for fighting and received a loss of canteen purchases for three weeks.

[215] The Presentence Report states that a Dr. Scott diagnosed the accused in February 2012, when he was in custody, as having a bi-polar disorder and prescribing him 1200 milligrams of lithium per day. The accused says this has calmed him and balanced his emotions and that prior to this diagnosis and medication he was quick to anger and verbally aggressive. I note that notwithstanding this comment from him and subsequent, presumably, to his calming medication, he has gathered a history of institutional misconducts for physical aggression, some of which, however, he disputes.

[216] Some of his family remain supportive of him although they cannot understand, as the presentence report states, how the accused could have starved his brother and then watched him succumb to a most horrific death and make no attempt to offer assistance.

[217] The accused looks forward to taking correspondence courses in theology and his plan is to become a pastor.

[218] The accused has expressed remorse. He expressed remorse in his May 28, 2008 police interview. He told the author of the Presentence Report that he would “live with the inner torment and remorse” for the remainder of his life. He also told this Court how sorry he was.

[219] As it is almost unfathomable that anyone could neglect a totally dependent person such as Jamie to such an extent in the face of obvious, horrible and continual suffering, explanations have been sought.

[220] The issue of the accused’s mental health affecting his care of Jamie has been raised by his counsel in sentencing submissions, referring to the accused’s diagnosis as having bi-polar disorder and being prescribed lithium, and also referring to medical evidence from the trial of the accused’s earlier visits to doctors both before and after Jamie’s death.

[221] I review that medical evidence.

Medical Evidence Regarding the Accused

[222] In August and November 2007, the accused had two medical appointments with Dr. Andrew Jordan, a family doctor in Belleville. The appointments were for the accused, not for Jamie. At the August 2007 appointment, the accused filled out a health questionnaire requesting testing for bi-polar disorder and attention deficit hyperactivity disorder.

[223] When Dr. Jordan saw him in November 2007, the accused told him he was anxious about CAS matters and that because the Picton CAS had been biased against him, he had moved to Belleville for a fresh start. Dr. Jordan prescribed anti-depressant and anti-anxiety medications and referred the accused to Dr. Rami Habib, a psychiatrist.

[224] This appointment with Dr. Jordan in November 2007 was six months before Jamie’s death and the accused did not mention Jamie to Dr. Jordan and Dr. Jordan said he did not know the accused had a brother living with him. By way of contrast, it was in July 2005 that the accused last took Jamie to a doctor.

[225] The accused had told Ms. Kuipers Heidinga, the family’s CAS worker in Prescott, on October 30, 2007 that he had been to a doctor and was waiting for a follow up appointment in November 2007 because he had been diagnosed with serious heart problems and had had many heart attacks. Dr. Jordan said, however, there was no mention made during his attendances with the accused about any heart issues. The accused again made reference to his heart attacks to Ms. Kuipers Heidinga in January 2008 and that he was on medication for depression. I assess only the latter to be true, on the evidence.

[226] Dr. Rami Habib, a psychiatrist, first saw the accused on February 26, 2008 as a result of Dr. Jordan’s referral. This was three months before Jamie’s death and yet the accused told Dr. Habib that he lived alone. He told Dr. Habib that he was stressed by the separation of his family as a result of CAS interventions and his lack of contact with the children.

[227] The accused also admitted to ongoing alcohol and cannabis use, saying that the day before he had consumed fifteen beers and 2 ½ to 3 grams of marijuana.

[228] Dr. Habib concluded that he was unable to make any definitive psychiatric diagnosis because of the accused’s ongoing substance abuse and he recommended addictions counselling. He prescribed an anti-depressant for the accused.

[229] Dr. Habib next saw the accused on March 27, 2008 when he concluded there was no objective evidence of any type of illness and continued the anti-depressant medication. The accused told him that he and his wife Lisa had stopped their alcohol and cannabis use on March 1, 2008 and were feeling much better. There was no mention made of Jamie.

[230] Dr. Habib’s third attendance with the accused was on April 22, 2008 when the accused again told Dr. Habib that his concerns were regarding his children. Again, there was no mention of Jamie. Dr. Habib wrote in his report that the accused was “stable and…insight and judgment are appropriate” and the accused’s anti-depressant medication was increased to allow the accused to better deal with his “break-through anger”.

[231] Dr. Habib’s fourth and last attendance with the accused was two weeks after Jamie’s death, on June 17, 2008. Dr. Habib wrote, “Jerry continues to do well overall…he says he is much calmer…sleep is O.K.”. Dr. Habib said there was no evidence of residual symptoms; the medication was working as it should; there were no objective signs of illness and he referred the accused back to Dr. Jordan, concluding with a diagnosis of “major depressive disorder in remission”, in other words, that at that time and although he had previously diagnosed him with a “major depressive disorder”, the accused no longer had depressive symptoms.

[232] Dr. Habib did not recall knowing of Jamie or that he had died and said that if he had known, he would most likely have documented this.

The Accused’s Statement to Police

[233] Intersecting these visits with Dr. Habib was Jamie’s death and the accused’s interview with police on May 28, 2008, two days later. The police interview lasted one hour and twenty minutes.

[234] The accused answered a number of questions about himself, saying: he was bi-polar and on medications; he had tried everything to save Jamie; Jamie was “my life”, ”my world”; he had called his aunt, a nurse, who advised him to rotate Jamie but Jamie would roll back to the same position in bed even though he told Jamie not to lie on his shoulder wound; he went on the internet to try a remedy of grocery store honey on Jamie’s sores; he healed one sore; he “didn’t do nothing to neglect him. I tried everything, my best”; he tried to do what he thought was right; he first noticed Jamie’s four bedsores about three weeks before his death; he didn’t take Jamie to doctors because Jamie didn’t want to go to a doctor; he and Jamie would “watch Jesus together every day it’s on TV”; when he was working it was his wife Lisa who looked after Jamie and then when he was home, he primarily looked after Jamie; he didn’t talk to a doctor about Jamie as Jamie was fine up to November; from November onwards, Jamie got the same level of care and the accused went in every day and fed him, talked to him, sat with him and watched TV and movies together; the day of Jamie’s death he put him in the bathtub and as he was dressing Jamie, his breathing became bad; Jamie’s disability benefits paid for half his rent, his share of satellite television, phone, groceries and extras and he bought Jamie everything he wanted including all his food; the accused’s rent was around $650 each month; he and Lisa cleaned the house after Jamie’s death.

[235] The accused also spoke about Jamie, saying: Jamie was born with hydrocephalus; he was only supposed to last five years but he had him for eight; Jamie was fine up to about a month or two months ago and he had stayed the same for over 7 years; about a year or two ago Jamie had slowed down on his eating; when his older daughter left home in April and the family broke apart that’s when everything went downhill and Jamie stopped eating; from the middle of March when Jamie was maybe 120 pounds he wouldn’t eat his food and he was pretty thin when he passed; Jamie never complained but the accused agreed Jamie might not have fully understood; on the day Jamie died he agreed to go to the hospital.

[236] I refer to these particular portions of the accused’s interview with police so as to highlight them for their utter lack of believability in light of all of the evidence at trial and before me with respect to sentencing, although, of course, it is possible the jurors were not of the same opinion with respect to the evidence they heard.

[237] This assessment of the accused’s credibility in his statements to police, namely his lack of credibility, is mentioned because it is an essential part of the sentencing process that his level of moral culpability for manslaughter be assessed. A determination of the degree of his moral culpability for manslaughter is one element of the fundamental principle of proportionality reflected in s. 718.1 of the Criminal Code, that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. I return to this issue of moral culpability below.

4. Counsel Positions

[238] The Crown requests a twenty-year sentence before the deduction of credit for pre-sentence custody. Defence counsel requests a sentence in the range of 8 to 10 years before the deduction of the credit.

[239] It is agreed that as of April 19, 2013, the date of sentencing submissions, the accused has spent 3 years in pre-sentence custody. As of the date of sentence of August 30, 2013, that time in custody amounts to 3 years and 143 days. Defence counsel requests a 1.5:1 enhanced credit for that custodial time. The Crown requests the credit remain on a 1:1 basis.

[240] Defence counsel submit that the mitigating factors able to be considered are the accused’s invitation to the jury to find him guilty of manslaughter, his diagnosis by Dr. Habib as having suffered a serious mental illness of a major depressive disorder in a period of time before Jamie’s death buttressed by his diagnosis in custody by Dr. Scott as having a bi-polar disorder, his lack of a prior criminal record resulting from his two conditional discharges, his good employment record, his difficult childhood, and his remorse.

[241] It is the role of the accused’s mental illness in impairing his judgment that defence counsel submit plays a primary role in serving to reduce his moral culpability for the manslaughter.

[242] The Crown emphasizes the abundance of factors aggravating sentence and submits that the circumstances of Jamie’s death are far from the more common scenario for manslaughter of an impulsive and brief act causing death.

5. Analysis

The Accused’s Moral Culpability

[243] I begin with an assessment of the accused’s actions and his culpability for them, based on the trial evidence, the Presentence Report and counsel’s submissions.

[244] Very little of the trial evidence as summarized above portrays the accused in a favourable light, aside from some concern he appears to have shown for the children, although his stepdaughter Taniaka’s testimony was that she was decidedly not enamoured of her step-father and she had few complimentary words for either him or her mother Lisa.

[245] The trial evidence in its entirety paints of picture of the accused as primarily interested in working, partying, beer and drugs and whose lifestyle in the eight years Jamie was under his care triggered frequent CAS interventions for the children and changes of residences and communities.

[246] If there was and is more to his character than this, it has not been revealed in either the trial evidence or the Presentence Report.

[247] It is difficult to understand how the accused could have acted as he did.

[248] I review some of the evidence that has led me to conclude the accused has a very high degree of blameworthiness for his actions causing Jamie’s death.

[249] The accused had been well informed of the high level of care Jamie required, before the accused decided to place himself, on his own initiative, in charge of his brother’s life. He had also been well informed in advance of services available to him and to Jamie, at no cost to them, for home care, proper equipment, respite care and community activities. He knew in advance that Jamie loved to be with people. He knew in advance that Jamie had some not unusual behavioural patterns.

[250] In 2000 and 2001 the accused refused any assistance towards Jamie’s care and Jamie told Ms. Duffy-Brown that he never went anywhere. That rarely changed.

[251] Five years later in 2005 after Ms. Fencott had responded to a complaint about Jamie’s care, the accused agreed to her suggestions for a new electric wheelchair, home care and a social worker to look for day programs outside the home for Jamie.

[252] By early 2006 the accused had discontinued the home care.

[253] A new electric wheelchair for Jamie was finally received in August 2006, again as a result of Ms. Fencott’s initiative, but no one recalled Jamie ever using it.

[254] At the same time, and unbelievably so, the accused continued to provide virtually no care to his brother whom he knew required total care.

[255] Between 2000 and 2005, the accused took Jamie to medical appointments on three occasions only, ending in July 2005. This amounted to taking Jamie to the doctor when Jamie was relatively healthy.

[256] As Jamie’s condition clearly deteriorated according to the timelines spoken about by Dr. Sibbald, Dr. Zlotkin and all the witnesses who observed Jamie’s condition over the years, this absence of care amounted, especially after July 2005, to a total neglect of Jamie’s medical needs by the accused and to the accused being a bystander and, at the same time, a perpetrator of Jamie’s suffering. And yet the accused could take himself to six medical appointments between August 2007 and June 2008, for his own health concerns.

[257] It appears that the accused was well accustomed to making up stories and telling untruths about his life and his care of Jamie.

[258] Examples of this are indicated above in the accused’s statement to police, including that Jamie’s income helped with half the rent and he bought everything Jamie needed, that he spent time socializing with Jamie every day and watching TV, that Jamie had a fear of going to the doctor, that it was only after November 2007 that Jamie’s condition declined, that in May 2008 he noticed four bedsores on Jamie, that he did his best for Jamie, that Jamie was able to say on the day of his death that he wanted to go to the hospital and that Jamie was his “world” and his “life”.

[259] I assess none of this as having been true, as the other trial evidence revealed. It is also plain that all of Jamie’s income was used by the accused for his own purposes and hardly at all for Jamie’s purposes.

[260] Another example of untruths from the accused is in his comments to the coroner, Dr. Wyatt, shortly after Jamie had died as reviewed above, and the particularly misleading comment that Jamie had been wasting for one month and had bedsores for the last two weeks.

[261] The accused also told Lynn Shaver that Jamie had died of a brain aneurysm, a cause that had no basis to it and particularly so, given the accused’s knowledge of Jamie’s condition before his death.

[262] A further example is the misleading information the accused gave Ms. Kiepers Heidinga of the CAS, that he himself had had heart attacks and had been diagnosed as having a bi-polar disorder before Jamie died. Neither is supported by the evidence.

[263] The trial evidence also lends itself to the conclusion that the accused would make efforts to clean Jamie up when expecting visits to or from official persons but that when unannounced visits happened or when persons who were not part of the healthcare system or the CAS were present in the home, a far different and more accurate picture of Jamie’s life was revealed.

[264] In late 2001, Nicole Kay of KCL visited unannounced and saw Jamie in a state that portended his death seven years later.

[265] In 2003 Earl Munroe of ODSP visited on short notice and saw Jamie in his almost empty bedroom sitting on his mattress with nothing on his lower body.

[266] When Ms. Fencott, a registered nurse, responded in the fall of 2005 to a complaint about Jamie’s care and had to arrange a visit to the Belleville home as she had no phone number for it, Jamie was on the ground floor of the residence and was clean and free of odour. However, this was not Jamie’s usual state in those years and in following years, as the evidence of Earl English, Larry Coates, Nelson Shaver, Tammy Shaver, Joseph Hare, Penny Easter, Tammy Ditchburn, Gordon Deline, Lynn Shaver, Wayne Farley and Taniaka Smith Hawley made clear.

[267] It is reasonable to infer from this pattern of conduct by the accused that he knew the standard of care expected of him by those concerned with Jamie’s well-being included keeping Jamie clean and well groomed.

[268] Perhaps one of the more shocking facts to reveal themselves in a case replete with shocking facts is that on the weekend before Jamie died on Monday, May 26, 2008, the accused had left Jamie utterly alone in his upstairs bedroom, perhaps slumped over up in his old and worn wheelchair but more likely in his filthy bed, weighing 57 pounds, unable to move, suffering in extreme pain from his massive and infected pressure ulcers and having difficulty breathing from the pneumonia filling up his lungs. This evidence that the accused had been away for the weekend came from Donna Frankland and also from the accused during his May 28, 2008 interview with police.

[269] It is a reasonable inference from all of the evidence that the accused’s decision to leave Jamie by himself for his last two days, regardless of his needs, was consistent with the accused’s pattern of conduct, his pattern of neglect of Jamie in the entire eight years that Jamie was under his care.

[270] Samantha Stacey Macdonald said in 2001 when she lived with them that the accused was away early in the morning and Jamie would not be cleaned up until the accused returned home after work.

[271] Earl English said the same for the spring to fall of 2005, including finding Jamie alone in the house in a bathtub filled with cold water and that when the accused did come home, everyone would smoke pot and drink together in the upstairs master bedroom or in the basement.

[272] In the fall of 2005 until early 2006, Larry Coates, the personal support worker, said that when he arrived at the home in the morning, no one was there except Jamie and on a number of occasions he couldn’t get in as the home was locked and no one answered the door. It is reasonable to infer that Jamie was home, locked inside and alone in his bedroom. No one observed that Jamie had access to a telephone in case he needed help.

[273] Between the fall of 2006 and January 2008, the CAS documented at least eight occasions when no one answered the door and the same inference arises from this evidence, namely that Jamie had been left alone in the residence.

[274] Tammy Ditchburn spoke of hearing moaning through the second floor wall she shared with the accused’s Prescott residence in 2006 and 2007. It is a reasonable inference from all of the evidence that it was Jamie who was moaning.

[275] Donna Frankland, who lived next door in May 2008, spoke of the accused’s dog that barked, howled and cried all day, presumably, again, when no-one was home other than Jamie.

[276] All of this speaks of the accused as being, at best, a person who was indifferent to Jamie and Jamie’s life. Contrary to the accused’s statement to police, the evidence is clear that Jamie was never his “life”. The evidence reveals that the accused was never interested in Jamie’s well-being and was never concerned about Jamie’s quality of life. The accused treated Jamie as a non-person or as something less than human. The accused showed Jamie little respect and accorded him little dignity.

[277] Additionally, the evidence is that when the accused visited Doctors Jordan and Habib regarding his own health concerns, he never mentioned Jamie at all. This was in the period of time six months before Jamie’s death and continuing to June 2008, the month after Jamie’s death. Upon being prescribed anti-depression medication, the accused reported to the doctors that he was feeling much calmer and was sleeping and doing well. All of this also supports the conclusion that in failing to perform his duty to Jamie to provide him with necessaries of life, the accused was indifferent to the effect of his failures on Jamie.

[278] Another inference amply supported by the trial evidence, and one that offers a cogent explanation for all that happened, is that Jamie was at the accused’s home for the disability benefits income Jamie provided, and no more, and the task of caring for Jamie simply became more of a nuisance over time.

[279] In my view it is an inescapable inference arising from the evidence, including from Nicole Kay, Samantha Stacy MacDonald, Earl English, Donna Frankland and all the evidence of what the accused failed to do for Jamie, that the accused had decided to financially exploit his brother. That is the reason he took his brother away from his dedicated caregivers at KCL, apparently unconcerned, the KCL witnesses said, that Jamie required intensive care. I conclude that the accused had never intended to give Jamie the care he required and he never did give him that care. As time passed and Jamie’s continued presence in the home was necessary for the receipt of his disability benefits, he ignored Jamie as much as he could, denigrated him, ignored the obvious signs of his deterioration and suffering and finally let him die, in terrible pain.

[280] The heartbreaking aspect of all of this was that regardless of what the accused did and did not do and regardless of the physical and verbal insults from the accused, Jamie just kept on loving having family and living with his brother.

[281] It is for these reasons that I conclude the accused’s level of moral culpability, his degree of responsibility for Jamie’s death, is extremely high.

[282] Defence counsel have submitted that the accused’s diagnosed major depressive disorder should serve to mitigate his culpability. I disagree. As the Crown has argued, there is no evidence of the effect that the accused’s depression arising out of his CAS problems had on his decisions and actions regarding Jamie’s care. There is no evidence that the accused’s major depressive disorder played a role in his neglect of Jamie: R. v. Shahnawaz, 2000 16973 (ON CA), [2000] O.J. No. 4151 (OCA), at paras. 30-33.

[283] The evidence from Dr. Jordan and Dr. Habib, as reviewed above for 2007 and 2008, supports this conclusion. The accused did not even mention Jamie to Dr. Jordan and, instead, told Dr. Jordan that he was anxious about CAS matters. The accused repeated this to Dr. Habib and again, did not mention Jamie’s existence. The accused did mention his alcohol and drug use to Dr. Habib in February 2008 and Dr. Habib declined to make any psychiatric diagnosis as a result and continued the accused’s anti-depressant medication begun by Dr. Jordan. In March 2008 Dr. Habib said there was no objective evidence of any type of illness and the accused told him he was feeling much better after he and Lisa had stopped their alcohol and cannabis use. In April 2008 Dr. Habib wrote that the accused was stable and his insight and judgment were appropriate and in June 2008, which was after Jamie had died, he wrote that the accused no longer had depressive symptoms and was doing well. Dr. Habib could not recall ever having been aware of Jamie’s existence.

[284] The information that in February 2012 Dr. Scott diagnosed the accused with having bi-polar disorder is a post offence diagnosis that, in light of the lack of any evidence linking the accused’s depression to his actions against Jamie and as reviewed above from Doctors Jordan and Habib, I conclude does not serve to either explain the accused’s actions against Jamie or to mitigate his culpability for them.

[285] I find, therefore, that not only is the accused’s level of responsibility for the manslaughter very high, but that it is accurate to characterize his offence of manslaughter as one that is a “near murder”: R. v. Hill, [2007] O.J. No. 1589 (Ont. S.C.J.), at para. 11.

Aggravating and Mitigating Circumstances

[286] The circumstances serving to mitigate sentence are some of those referred to above by defence counsel except, for reasons also explained above, the issue of the accused’s mental health. It does not operate as a mitigating circumstance.

[287] Additionally, I accord only limited weight to the accused’s invitation to the jury to find him guilty of manslaughter, coming as it did after the Crown had closed its case and the defence of lawful excuse was found to have no air of reality. I do accept, however, that by his invitation the accused did take responsibility for the offence of which he was ultimately convicted.

[288] As for the accused’s remorse, I have found him to be not credible in his many statements made before and after Jamie’s death including to Dr. Wyatt, the coroner and to police on May 28, 2008. He also told Dr. Habib in June 2008 that he said he was feeling much better, with no mention made of Jamie or Jamie’s death.

[289] I do not, therefore, accept the accused’s expressions of remorse after Jamie’s death including in the Presentence Report and to this court as sincere. For a person such as the accused to say that he feels remorse for his actions committed over a period of eight years or even over the last 2 ½ years, in all of those circumstances, speaks more of remorse over being caught than any genuine insight into his wrongdoing. And even if the accused is sincere in his plan to become a pastor, in all of those same circumstances I can only comment that it would be better if he were never in a position of advising or counselling others.

[290] The mitigating circumstances are, therefore, the accused’s good employment record, his lack of a prior criminal record resulting from his two conditional discharges and his difficult childhood contributing, perhaps, to his dysfunctional adult life.

[291] The aggravating circumstances far outweigh the mitigating. As many have already been referred above to in the review of the evidence and of the degree of the accused’s moral culpability, I express them only in point form at this time. They are listed in no particular order. Some overlap with others. I have concluded that all of the following aggravating circumstances have been proved beyond a reasonable doubt:

1. The accused’s mistreatment and neglect of Jamie was longstanding. Even though the charged period in the indictment was September 1, 2006 to May 27, 2008, the evidence has revealed that the accused’s neglect had extended over the eight years that he had Jamie under his charge and owed him a duty of care to provide him with necessaries of life;

2. The accused’s actions against Jamie were an egregious abuse of his position of trust in relation to Jamie and an egregious breach of his duty to provide Jamie with necessaries of life;

3. The accused chose to take Jamie away from KCL, knowing full well of Jamie’s intensive needs. Jamie was not thrust on the accused as had been the situation in R. v. Cox, 2011 ONCA 58, [2011] O.J. No. 228 (OCA). The accused had a choice not to care for Jamie or, if it did not work out in the first few months, to return Jamie to the care of KCL. As such, I agree with the Crown’s characterization that the accused’s actions amounted to a breach of trust that he had actively sought;

4. All of the circumstances leading to Jamie’s death and the accused’s high degree of culpability for Jamie’s death serve to characterize his offence of manslaughter as one that is a near murder;

5. The accused’s motive in choosing to take Jamie into his home was a financial one. He exploited Jamie for his disability benefits from the beginning. He ignored Jamie’s many needs that could have been satisfied through directed uses of Jamie’s disability benefits and through receiving services at little or no cost. He controlled Jamie’s finances, chose to keep Jamie in relative squalor and provided almost nothing for Jamie;

6. The accused not only neglected Jamie, he also abandoned Jamie when he left Jamie alone repeatedly for periods of time over the years and, particularly, in the weekend before his death. He abandoned Jamie in his wheelchair, his bed and his bath;

7. The accused chose not to take Jamie to the hospital for his worsening pressure ulcers and instead, engaged in primitive doctoring using grocery store honey that Dr. Sibbald said only could have worsened the ulcers and their infected state, and Jamie’s pain;

8. While the accused has scant prior criminal history of aggression and anger in connection with his previous convictions and his recent institutional incidents, as expressed by Watt J., as he was then, in R. v. E.B., [2006] O.J. No. 2752 (Ont. S.C.J.), at para. 108, the “cruelty and inhumanity” exhibited by the accused towards Jamie over an extended period of time “countervail the force of a dearth of prior related convictions”;

9. The accused not only physically abused Jamie by his appalling neglect and actions against Jamie, he also verbally abused Jamie through his ridiculing and rude statements;

10. In addition to the verbal and physical abuse the accused inflicted on Jamie, the accused also exhibited rage and anger against Jamie when, for example and through no fault of Jamie’s, Jamie had repeated episodes of incontinence or, called for attention or for food. Some of the accused’s anger resulted in further physical abuse of Jamie, for example, making him sit in his soiled clothes, cold baths and stepping on Jamie’s swollen and purple feet to get him to the bathroom. Some of the accused’s anger, presumably, caused Jamie to hide his feces;

11. The accused deliberately declined services for Jamie that he knew would have vastly improved the quality of Jamie’s life, at no cost to him or to Jamie;

12. The accused deliberately declined or ignored the availability of assistive devices for Jamie including bars, lifts and stair glides and he ignored the new electric wheelchair that was delivered for Jamie in the summer of 2006. All of these devices would have significantly improved the quality of Jamie’s life, at no cost to the accused or to Jamie;

13. Jamie’s starved and infected condition at death was extreme. The number and extent of his wounds were extreme. His wasted and decayed physical condition at death speaks to terrible suffering that Jamie had had to endure before dying, not only from the pain of starvation but also from the pain of his pressure ulcers, from the greater pain of his infected pressure ulcers and from the struggle to breath due to his pneumonia. Not only did the accused’s neglect cause Jamie to have extreme pain from all of these sources, Jamie had to endure that pain for months and years as a result of the accused’s neglect;

14. The accused accorded Jamie little dignity or respect as a fellow human being;

15. On May 26, 2008, the accused bathed Jamie when he was nearly dead, before calling 911. This conduct, in light of all of the evidence, allows for the inference that the accused was willing to increase Jamie’s suffering in order to try to hide his culpability for Jamie’s filthy and decayed state;

16. The accused cleaned the house soon after Jamie’s death of some of the evidence of Jamie’s living conditions. This conduct, in light of all of the evidence, also allows for the inference that the accused was attempting to hide some of the evidence of his neglect of Jamie. He was also willing to involve his step-daughter Taniaka in this cover-up;

17. The accused chose to run a drug house while Jamie was living with him, particularly in Belleville and Prescott, thereby contributing to the dysfunctional lifestyle that also negatively impacted on Jamie’s quality of life and the accused’s attitude towards Jamie;

18. While Jamie was living with him the accused engaged in cover-up measures of his neglect of Jamie when a visit with health professionals took place and after Jamie’s death, he continued this cover-up when he lied about his care of Jamie and Jamie’s condition;

19. I do not assess the expressions of remorse from the accused as genuine and neither do I assess him as having any insight into the gravity of his actions against Jamie;

20. Because of the accused’s lack of insight into the gravity of his actions, I am unable to assess the level of risk he poses to the safety of the community as being other than high. The accused was able to act with inhumanity and cruelty towards his incapacitated brother so as to have an extra thousand dollars a month. Even if this kind of situation is one unlikely to ever be available to the accused again, the evidence of his indifference to Jamie’s obvious suffering for the pursuit of his own financial gain is an attitude that risks the safety of the community and particularly so when he has so little insight into his actions;

21. With his 7 year old mental abilities, spastic quadriplegia, dislocated hip, scoliosis and cerebral palsy, Jamie was a most vulnerable victim who was completely helpless and totally at the mercy of the accused’s actions against him. The accused’s actions were, as the Crown has characterized them, cruel acts of domination of Jamie’s vulnerabilities. The accused took full advantage of Jamie’s disabilities and because Jamie could not move, clean himself or feed himself, he died.

Sentencing Objectives

[292] In these circumstances the sentencing objectives are denunciation, retribution, general deterrence, specific deterrence, promotion of a sense of responsibility and acknowledgment of harm, and rehabilitation.

[293] Denunciation, retribution and general deterrence overshadow the other objectives in the balancing process for sentencing. Jamie was the most vulnerable of victims. The accused’s treatment of Jamie has shocked the community. Those special people who are dependent on others for necessaries of life require our special care and our special protection and they, their families and the community need to be assured that the duty of care imposed on their caregivers reflects a societal value that is to be vigilantly protected.

[294] The message intended to be sent by the accused’s sentencing is that Jamie’s life and the quality of his life, second after second and day after day, was something to be cherished, protected and enhanced. His caregiving community at KCL understood this well. They did so much for Jamie and his great big laugh.

[295] The accused, by way of contrast, never bothered considering life from Jamie’s perspective. He took over as Jamie’s caregiver but he never cared for Jamie in any way. The accused’s failures in performing the duty of care he owed to Jamie were extreme.

[296] The only issue on this sentencing is the length of incarceration required by the sentencing objectives in all of the circumstances, so as to achieve a sentence that is proportionate to the gravity of the offence and the accused’s high degree of responsibility, his high degree of blameworthiness, for it.

Length of Sentence

[297] R. v. E.B., [2006] O.J. No. 2752 (Ont. S.C.J.) was a case where the accused persons had starved their five year old grandson to death over a number of years. Watt J. commented, at para. 110, “The inhumanity revealed here has shocked this community. Those who were responsible for it must pay a very steep price”. The same comments apply to the accused.

[298] In R. v. Cox, 2011 ONCA 58, 271 O.A.C. 77, the accused in that case had been convicted, after trial, of manslaughter in connection with the death of her disabled sister who had been found dead, underweight and covered in fecal matter in the unfinished basement of the home she shared with the accused and her family. The cause of death was determined to have been starvation but the accused was found guilty on other evidence including the deceased’s appalling living conditions and the complete absence of medical attention. The deceased was 23 years of age at her death and from 2 years of age until she was 16 years of age, her biological mother had looked after her. When her mother died, the accused assumed primary responsibility for her sister’s care for the next seven years.

[299] Ms. Cox was sentenced to a 9 years term of incarceration. She argued before the Court of Appeal that the trial judge had failed to give proper consideration to the principle of parity in respect of the sentence imposed on her husband and former co-accused, who had pled guilty to criminal negligence causing death and had received a conditional sentence.

[300] The Court of Appeal in Cox upheld the 9 years sentence, commenting that parity is only one of a number of important sentencing principles (para. 47) and that there were significant differences in the circumstances of Ms. Cox and her husband (para. 48).

[301] In the present case, there are significant differences between the accused’s circumstances and those of Ms. Cox. Ms. Cox did not seek out her sister’s care; the accused did seek out Jamie’s care. For Ms. Cox’s deceased sister there was no evidence of how the cuts and bruises on her body came to be present; there was abundant evidence that it was the accused’s neglect of Jamie that had caused the extreme number and condition of Jamie’s 33 pressure ulcers, their infected state, his starvation and his pneumonia. In Cox there was no evidence of financial exploitation; that evidence is clear as being the reason why the accused took Jamie away from the care of KCL and kept Jamie at his own home for as long as Jamie managed to live. Ms. Cox had no prior criminal convictions; the accused has prior criminal convictions although no criminal record. In Cox there was no evidence of physical abuse, verbal abuse and animus against the deceased; there is abundant evidence of years of physical abuse, verbal abuse and animus by the accused against Jamie, amounting to cruelty. In Cox the cause of death was starvation by malnutrition; in the present case Jamie died from three causes, each of them causing great pain and suffering.

[302] All of this is to conclude that the circumstances of the present case, including the accused’s high degree of moral culpability, are far more horrific than in Cox and require, in my view, a longer sentence than the nine years imposed in that case.

Sentence

[303] Mr. Hawley, please stand at this time.

[304] I have determined that a sentence of twenty years is a sentence that achieves the primary sentencing objectives of denunciation, retribution and deterrence. It is also a sentence that acknowledges the extreme harm done to Jamie and to the community’s sense of security for all those persons dependent on others for necessaries of life.

[305] It is a sentence that recognizes your conviction for manslaughter and not for second degree murder. At the same time, it is a sentence for a manslaughter that was a near murder. However, you have not been given a life sentence and your mitigating circumstances have been recognized.

[306] Your sentence has not been determined simply by choosing between the two different amounts requested by counsel. As these reasons are meant to demonstrate, your sentence is one that has been measured and balanced among all the circumstances of the offence and of you, the offender.

[307] You are entitled to a credit for the period of custody you have already served of 3 years and 143 days on a 1:1 basis. I decline to exercise my discretion to give you an enhanced credit of 1.5:1 for that presentence custody.

[308] An enhanced credit is often awarded in recognition of the inability to earn remission or parole during presentence custody time, or “dead” time, and/or for difficult custodial conditions. Sections 719(3) and 719(3.1) of the Criminal Code set out the parameters of judicial discretion for presentence custody credit and allow for the granting of an enhanced credit up to 1.5:1 “if the circumstances justify it”.

[309] In R. v. Summers, 2013 ONCA 147 (OCA), at para. 8 and repeated at para. 119, Cronk J.A. added that s. 719(3.1) allows an enhanced credit,

where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.

[310] I am not aware of circumstances that justify an enhanced credit. You have collected a series of institutional incidents in the last two years and if these kinds of incidents were to continue, your future eligibility for remission and parole could be affected. I have already reviewed my reasons for concluding that your expressions of remorse are not sincere. Your admission of guilt for manslaughter only occurred at the end of the Crown’s case. In sum, I am not of the opinion in all the circumstances of this case that an enhanced credit is necessary to achieve a fit sentence.

[311] I direct, therefore, your warrant of committal reflect that you have been given a presentence custody credit on a 1:1 basis of 3 years and 143 days and that the sentence you have left to serve on your 20 year sentence for manslaughter is 16 years and 222 days.

[312] There are two other mandatory Orders, the first being a DNA Order requiring you to submit immediately to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under section 109 of the Criminal Code, prohibiting you for a period of 10 years commencing upon your release from incarceration from possessing any firearm, ammunition or any other item referred to in that section.

Justice L. Ratushny

Released: 30/08/2013

COURT FILE NO.: 10-0401

DATE: 30/08/2013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Alan Findlay and Claudette Breault, for the Crown

– and –

JERRY HAWLEY

Michael J. O'Shaughnessy and Robert A. Barr, for the Accused

sentencing decision

Ratushny J.

Released: 30/08/2013