



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kos-Rabcewicz-Zubkowski, 2019 ONCA 234

DATE: 20190325

DOCKET: C64354

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Monica Kos-Rabcewicz-Zubkowski

Appellant

Ian R. Smith, for the appellant

Erica Whitford, for the respondent

Heard and released orally: March 19, 2019

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

REASONS FOR DECISION

[1]

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

[2]

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

[3]

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

[4]

The trial judge concluded as follows:

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

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

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

[17]

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

[18]

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

[19]

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

[20]

We disagree with those submissions.

[21]

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

[22]

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

[23]

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

[24]

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

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


