



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lis, 2020 ONCA 551

DATE: 20200903

DOCKET: C67405

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Meredith Lis

Respondent

Rebecca De Filippis and Lisa Joyal, for
    the applicant/appellant

Boris Bytensky and Brittany Smith, for the
    respondent

Heard: in writing

On appeal from the sentence imposed on August
    16, 2019 by Justice Lesley M. Baldwin of the Ontario Court of Justice with
    reasons reported at 2019 ONCJ 577.

Watt J.A.:


[1]

The
Criminal Code,
R.S.C., 1985, c. C-46,
imposes a duty on
    parents. They must provide the necessaries of life to their children under 16.
    Among the necessaries of life is medical assistance.

[2]

A parent who, without lawful excuse, fails to
    provide the necessaries of life to their child under 16 commits an offence if,
    by that failure, the parent causes the child's health to be endangered
    permanently.

[3]

Meredith Lis (the respondent) is a parent. She
    had four children of whom K.L. was the youngest.

[4]

K.L. lived with the respondent and one of her
    siblings. K.L. had cerebral palsy. She was globally and developmentally
    delayed. She could not walk unaided. She could not crawl. She was non-verbal.
    She wore diapers and slept in a baby's crib. She ate only puréed food and a
    liquid supplement.

[5]

When K.L. was nine years old, weighing only 31
    pounds, she died of complications of malnutrition and dehydration in the
    setting of cerebral palsy. K.L. died because her mother  the respondent  failed
    to obtain the medical assistance K.L. so desperately needed.

[6]

The respondent pleaded guilty before a judge of
    the Ontario Court of Justice on an information containing four counts:

·

failure to provide the necessaries of life;

·

possession of heroin;

·

possession of methamphetamine; and

·

failure to attend court when required.

[7]

The sentencing judge awarded enhanced credit for
    the time the respondent had spent in pre-disposition custody. This period, the sentencing
    judge calculated, amounted to the functional equivalent of a sentence of 17
    months imprisonment.

[8]

On the count of failure to provide the
    necessaries of life, the sentencing judge sentenced the respondent to
    imprisonment for one day, to be followed by probation for three years.

[9]

The Crown appeals the sentence imposed.

[10]

In these reasons, I explain why I would grant
    leave to appeal, allow the appeal, and impose a sentence of three years in a
    penitentiary. From that sentence, I would deduct 17 months as credit for
    pre-disposition custody, leaving a net sentence of 19 months imprisonment. I
    would not disturb the terms or length of the probation order. The Crown does
    not ask that we reincarcerate the respondent to serve what remains of her
    sentence and I would not do so.

The Background Facts

[11]

The Crown alleged that over a period of about five
    and one-half weeks, the respondent's failure to provide K.L. with sufficient
    food, water, and medical attention caused K.L. to die. K.L. was totally
    dependent on the respondent and others to care for her.

The Hospitalization in 2016

[12]

In early 2016, K.L.'s father took her to the
    emergency ward of a local hospital in Eastern Ontario. K.L. was dehydrated,
    lethargic, and congested. She was transferred to a larger hospital where she
    was examined by specialists and her nutritional needs established.

[13]

About two weeks after K.L. had been released
    from hospital, the respondent took her to a doctor. K.L. was to return to the
    doctor every three months, be seen by a pediatrician to whom she was referred,
    and continue to attend a local respite care facility.

[14]

The respondent did not take K.L. to her family
    doctor every three months as the doctor requested. Her next and last visit was
    nine months later, on December 20, 2016. K.L. then weighed 42.13 pounds.

The Involvement of CAS

[15]

The Children's Aid Society (CAS) were
    extensively involved with the respondent's family. Their involvement stemmed
    from the respondents substance abuse and neglect of her children through
    inadequate supervision. Workers were concerned about custody and access and its
    impact on the children, particularly K.L., who was left under the supervision
    of an older sibling from time to time.

[16]

The respondent's mother died in March 2017. Her
    death had a significant impact on the respondent. The children were frequently
    absent from school. K.L.'s wheelchair needed maintenance. The respondent
    struggled with her mother's death and K.L.'s transfer from regular classes to a
    Life Skills program. She was behind in her rent and feared eviction.

[17]

The CAS required face-to-face visits every 30
    days. The last home visit occurred on June 26, 2017, after which the respondent
    cancelled or rescheduled all subsequent visits. None took place.

The Final Days

[18]

A few days before K.L. died, the respondent told
    a friend that K.L. was really sick and was not eating or drinking. The friend
    told the respondent to take K.L. to the hospital. The respondent demurred.

[19]

On the day K.L. died, the respondent asked a
    friend to come over to watch the children because she wanted to go out for a
    couple of hours. The respondent left the friend in charge of the children and
    left to visit another friend with whom she smoked a joint.

[20]

Shortly after the respondent left her home, the
    sitter checked on the children. K.L. was not breathing. The sitter called the
    respondent who freaked out". When it was suggested that she should call
    911, the respondent repeated I've got to think". Her companion called
    911.

The 911 Response

[21]

Within minutes, first responders found K.L. on
    the floor in the living room of the respondent's apartment. K.L. had no vital
    signs. The coroner, who arrived about one and one-half hours after the paramedics,
    indicated that based on the presence of
rigor

mortis
, the
    deceased could have died four to six hours earlier.

The Cause of Death

[22]

The deceased died of complications of
    dehydration and malnutrition in the context of cerebral palsy. When last
    weighed on July 28, 2017, K.L. weighed 45 pounds. For 14 months she had not
    weighed less than 40 pounds. When she died, she weighed 31 pounds. She had lost
    nearly one third of her body weight between July 28 and September 4, 2017, a
    period of about five and one-half weeks.

The Sentencing Proceedings

[23]

The sentencing judge ordered a Presentence
    Report which, together with the submissions of counsel, provided information
    about the respondent and her circumstances.

The Circumstances of the Respondent

[24]

The respondent was 41 years old when K.L. died
    and 43 when she was sentenced. She had a difficult childhood fraught with
    emotional abuse from her mother and an absent father. First kicked out"
    of the family home at age 13, she returned intermittently before she left for
    good at age 15. Despite an aptitude for academics, she did not complete high
    school. She had worked in various service jobs until she was 30 but did not
    work outside the home thereafter.

[25]

The respondent has had four children. Her first
    child was born when she was 16. As an adult, the respondent has been involved
    in two abusive relationships, including one with K.L.'s father. She has a
    lengthy history of drug abuse.

[26]

Trial counsel filed several reference letters on
    behalf of the respondent. Their authors attested to the respondent's caring
    nature and willingness to help others. While in custody awaiting trial, the
    respondent participated in a methadone program as well as several other life
    skills oriented sessions.

The Positions of the Parties on Sentence

[27]

The trial Crown sought a sentence of four years
    in a penitentiary on the conviction for failing to provide the necessaries of
    life and concurrent sentences of much briefer durations for the drug and
    failure to attend court convictions. The Crown emphasized the egregious nature
    of the offence, which involved a significant breach of trust in connection with
    a highly vulnerable child, as well as the paramountcy of the sentencing
    objectives of deterrence and denunciation. She advocated for the imposition of
    a sentence that reflected the principles applied in cases of sexual abuse of
    children and gave effect to a recent statutory amendment increasing the
    punishment on conviction from a maximum of two to five years.

[28]

Trial counsel for the respondent identified the
    applicable range of sentence as a term of imprisonment of 12 months to 3 years.
    She acknowledged that a penitentiary sentence was warranted and accepted that
    it should not be at the lowest end of the range due to the gravity of the
    respondent's conduct. Counsel submitted that an appropriate sentence was two
    and one-half years, less enhanced credit for pre-disposition custody, coupled
    with a probation order for three years with a term requiring counselling.

[29]

The parties agreed that the respondent should
    receive enhanced credit for pre-disposition custody. The sentencing judge
    calculated that credit at 17 months.

The Reasons for Sentence

[30]

The sentencing judge reserved her decision on
    sentence for two months. She provided lengthy reasons in which she canvassed:

·

the circumstances of the deceased;

·

the circumstances of the offence;

·

the circumstances of the offender; and

·

the positions of the parties.

[31]

In a part of her reasons designated
Sentencing
    Principles - Criminal Code of Canada
, the sentencing judge reproduced the
    text of ss. 718, 718.01, 718.1 and 718.2 of the
Criminal Code
before
    turning to
Enhanced Pre-Sentence Custody Credit
, a listing of
    mitigating, aggravating, and other factors.

[32]

The essence of the sentencing judge's reasons
    appears in two passages. The first, entitled
Synthesis
, the second,
Sentences
.
    Omitting the headings, the relevant paragraphs are these:

[
192
]

This case is a
    pure tragedy all around. There are no black or white lines as various family
    members have tried to portray. There is only dense grey smoke.

[
193
]

Clearly a
    message needs to be sent by the Court to the community that those responsible
    for the care of vulnerable persons cannot just hide in plain sight, as Meredith
    did, nor collapse within oneself, as Meredith did, without calling out for help.

[
194
]

The most
    significant aggravating factor in this case is Merediths collapse to the point
    that she could no longer see if [K.L.] was alive or dead.

[
195
]

I have found
    as fact based on the evidence that [K.L.] was already dead when Meredith left
    the apartment at 5 pm to smoke drugs with a friend.

[
196
]

Considering
    both the mitigating, aggravating and other factors that have been presented at
    this hearing, this is not a case to impose a sentence of 4 years as submitted
    by the Crown. This is not a worst-case offender even though the victim was the
    most fragile of victims. [
K.L.]
had
    been sick for most of her life. Meredith took good care of her for most of her
    life. The total failure period as I calculate it to be is 17 days out of this
    childs nine years.

[
197
]

A total
    sentence of 2 and ½ years (30 months) as proposed by the Defence. I find this
    position to be high in all the circumstances of this tragedy.

[
198
]

Given
    that Meredith Lis has enhanced credit for pre-trial custody of 17 months her
    sentence will be one of time-served. I have considered the totality principle
    of sentencing in my final decision.

[33]

The sentence imposed was one day on each count
    to be served concurrently with each other, followed by a period of probation
    for three years on terms including recommended counselling or treatment for
    substance abuse, mental health and grief counselling, and a prohibition against
    consumption or possession of non-medically prescribed illegal drugs.

The Grounds of Appeal

[34]

The Crown contends that the sentencing judge
    erred:


i.

in failing to treat denunciation and deterrence
    as the paramount sentencing objectives as required by s. 718.01 of the
Criminal
    Code
;


ii.

in assessing the mitigating factors;


iii.

in interpreting and applying the principle of
    proportionality; and


iv.

in imposing a sentence that is demonstrably
    unfit.

Ground #1: Failing to Accord Primacy to Denunciation and
    Deterrence under Section 718.01

[35]

The first ground of appeal does not require any
    further reference to the circumstances of the offence or those of the
    respondent. A brief summary of the arguments advanced by the parties will
    provide a sufficient frame for the discussion that follows.

The Arguments on Appeal

[36]

The Crown appellant contends that, when read as
    a whole, the reasons for sentence demonstrate that the sentencing judge gave
    greater consideration to the respondent's rehabilitative prospects than to the
    sentencing objectives of deterrence and denunciation. In doing so, the
    sentencing judge made a fundamental error in principle.

[37]

The Crown submits that this case involved the
    abuse of a person under 18 years of age. As a result, s. 718.01 of the
Criminal
    Code
was engaged. This
required
the sentencing judge to give
    primary consideration to the sentencing objectives of denunciation and
    deterrence, not rehabilitation. The mandatory nature of s. 718.01 required a
    substantial penitentiary sentence to vindicate those primary sentencing
    objectives. The sentence imposed was inadequate. It failed to reflect
    denunciation, which is offence, not offender-focused, or general deterrence,
    which punishes an offender more severely, not because she deserves it, but
    because the sentencing court decides to send a message to others who may be
    inclined to engage in like activity.

[38]

The respondent emphasizes the highly
    individualized nature of the sentencing process which accords substantial
    leeway to sentencing judges in balancing competing sentencing objectives.
    Simply because the appellant or even this court might assign different weight
    to a sentencing objective, such as rehabilitation, does not amount to an error
    in principle or otherwise permit appellate intervention.

[39]

The respondent says that far from failing to
    accord primacy to the sentencing objectives of denunciation and deterrence, the
    sentencing judge referred to s. 718.01 and made it clear that a message was
    required to deter others from similar conduct and denounce the offence. Neither
    the sentence imposed nor anything in the reasons demonstrates an erroneous
    substitution of rehabilitation as the primary sentencing objective in lieu of
    denunciation and deterrence as required by s. 718.01.

[40]

According to the respondent, the sentencing
    judge appreciated the seriousness of the respondents offence and its high
    degree of moral blameworthiness. She did not err by considering the sentencing
    objective of rehabilitation, having already made it clear that denunciation and
    deterrence occupied the most prominent place. The sentence imposed fell within
    the applicable sentencing range, even after Parliament had increased the
    maximum sentence from two to five years. That the sentencing judge could have
    imposed a sentence more towards the upper end of that range does not mean that
    appellate intervention is warranted.

The Governing Principles

[41]

Before examining the specific claims of error
    advanced, it is helpful to recall some brief points about the standard we are
    to apply on our review of the fitness of a sentence imposed under s. 687(1) of
    the
Criminal Code
.

(1)

The standard for appellate intervention

[42]

An error in principle (the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor) can justify our intervention, permit us to inquire into the fitness of
    the sentence, and replace it with a sentence we consider appropriate. But not
    in all cases. It is only where it appears from the sentencing judge's decision
    that an error of the nature described impacted the sentence imposed that we are
    permitted to intervene:
R. c. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at paras. 43-44;
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1,
    at para. 26.

[43]

We may not intervene simply because we would have
    weighed the relevant sentencing objectives, principles, or factors differently
    than the sentencing judge. Although we are disentitled from intervening simply
    because we would have located the sentence in a different range or category, we
    may do so if the sentence is demonstrably unfit:
Lacasse
, at paras. 49,
    51. A sentence is demonstrably unfit, even in the absence of error, if it is clearly
    unreasonable, clearly excessive or inadequate, or represents a substantial
    and marked departure":
Lacasse
, at paras. 51-52;
Friesen
,
    at para. 26.

[44]

If we conclude that a sentencing judge has made
    an error in principle that had an impact on sentence or has imposed a sentence
    that is demonstrably unfit, we must perform our own sentencing analysis to
    determine a fit sentence. In doing so, we must apply the applicable sentencing
    objectives, principles, and factors without deference to the existing sentence,
    even if that sentence falls within the applicable sentence range. However, at
    least to the extent that they are not affected by an error in principle, we
    must defer to the sentencing judge's findings of fact and identification of
    aggravating and mitigating factors:
Friesen
, at paras. 27-28.

(2)

The fundamental principle of sentencing

[45]

The genesis of all sentencing is the principle
    of proportionality. Sentences must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. This is the fundamental
    principle of sentencing now embodied in s. 718.1 of the
Criminal Code
:
Lacasse
, at para. 53;
Friesen
, at paras. 30-32.

(3)

The relationship of sentencing objectives and principles

[46]

The determination of whether a sentence is fit
    requires us to consider the sentencing objectives in s. 718 and the sentencing
    principles included in s. 718.2:
Lacasse
, at para. 54.

(4)

The effect of s. 718.01

[47]

By enacting s. 718.01, Parliament prioritized
    denunciation and deterrence for offences that involve abuse of children. The
    words primary consideration" prescribe a relative ordering of sentencing
    objectives, a feature that does not appear in their listing in s. 718. This
    ordering reflects Parliament's intention that sentences better reflect the
    seriousness of the offence":
Friesen
, at paras. 101-102.

[48]

The enactment of s. 718.01 also qualifies the
    previous direction of the Supreme Court that it falls to the sentencing judge
    to determine which sentencing objectives are to be prioritized. Section 718.01
    confines the sentencing judge's discretion from elevating other sentencing
    objectives to an equal or higher priority. However, the sentencing judge
    retains the discretion to assign significant weight to other factors, such as
    rehabilitation, in giving effect to the fundamental principle of
    proportionality:
Friesen
, at para. 104;
R. c. Rayo
, 2018 QCCA
    824, at paras. 103, 107 and 108.

(5)

The effect of an increase in the maximum sentence for failure to
    provide necessaries.

[49]

Maximum sentences determine the objective
    gravity of an offence by indicating its relative severity. Parliaments
    decision to increase the maximum sentence for a crime demonstrates its intention
    that the offence be punished more harshly. This shifts the distribution of
    proportionate sentences for the offence:
Lacasse
, at para. 7;
Friesen
,
    at paras. 96-97. To respect Parliament's decision to increase maximum
    sentences, courts should generally impose higher sentences than those imposed
    in cases that preceded the increase in the maximum sentence:
Friesen
,
    at para. 100.

(6)

The admissibility of fresh evidence

[50]

The traditional fresh evidence criteria apply
    when a party proffers fresh evidence on an appeal from sentence. The court must
    determine whether it thinks fit" to receive that evidence. The
    overarching principle is whether the court considers it in the interests of
    justice" to admit the evidence:
Lacasse
, at paras. 115-116.

[51]

Evidence of post-sentence breaches of a
    probation order, even if unrelated to the offence for which the sentence was
    imposed, may be relevant to a party's character, conduct, and attitude, and
    thus rehabilitative prospects:
Lacasse
, at paras.  118-120.

The Principles Applied

[52]

I would give effect to this ground of appeal.
    Neither the reasons, read as a whole, nor the sentence imposed, reveals
    fidelity to the mandate of s. 718.01 of the
Criminal Code
.

[53]

The enactment of s. 718.01 means that it is no
    longer open to a sentencing judge to elevate other sentencing objectives, for
    example rehabilitation, to equivalent or greater priority than denunciation and
    deterrence in determining a proportionate sentence. The sentencing judge did
    not have the benefit of the decision in
Friesen
that clarified the
    impact on her discretion to determine the priority of sentencing objectives.

[54]

The sentencing judge excerpted several sections
    of the
Criminal Code
under her heading of
Sentencing

Principles
    - Criminal Code

of Canada
. She remarked upon the need to send a
    message to those responsible for the care of vulnerable persons. The message
    was that they cannot just hide in plain sight, as Meredith did, nor collapse
    within oneself, as Meredith did, without calling out for help". This
    message fails to give effect to the primacy of denunciation and deterrence as
    sentencing objectives.

[55]

Parliaments choice to prioritize denunciation
    and deterrence as the sentencing objectives for offences involving the abuse of
    children reflects a reasoned response to the inherent wrongfulness of these offences,
    the enhanced moral blameworthiness, and the serious harm that these offences
    cause to the most vulnerable in our community. A sentence that expresses
    denunciation condemns the offender for encroaching on our societys basic code
    of values:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 81. As an
    objective of sentencing, deterrence refers to the imposition of a sentence for
    the purpose of discouraging the offender and others from engaging in criminal
    conduct. When general deterrence is factored into the determination of a fit
    sentence, an offender is punished more severely. Not necessarily because she
    deserves it, but because the court decides to send a message to others who may
    be inclined to engage in similar criminal activity:
R. v. P. (B.W.)
,
    2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2.

[56]

Further, it does not appear that the sentencing
    judge considered the impact of Parliaments decision to increase the maximum
    sentence for failure to provide the necessaries of life from two to five years.

[57]

Section 718.01 assigns primacy to the objectives
    of denunciation and deterrence when sentencing for an offence that involves
    the abuse of a person under the age of eighteen years". The term abuse"
    is not limited to sexual abuse, as in
Friesen
. No principled reason
    would exclude the offence of failing to provide the necessaries of life from
    its reach.

[58]

In the result, I am satisfied that the
    sentencing judge's failure to give effect to the mandatory terms of s. 718.01
    and the effect of Parliaments decision to increase the maximum sentence for
    the offence of failure to provide the necessaries of life had an impact on the
    sentence imposed and requires our intervention.

Ground #2: Alleged Error in Assessment of Mitigating
    Factors

[59]

The sentencing judge identified several
    mitigating factors. They included:

·

the absence of a criminal record;

·

a guilty plea;

·

the respondent's difficult life circumstances;

·

the respondent's participation in programming
    while in pre-detention custody;

·

the respondent's remorse and wishes to
    participate in counselling; and

·

the respondent's strong family and community
    support.

[60]

In a portion of her reasons headed
Other
    Factors
, the sentencing judge criticized the CAS for failing to visit the
    respondent's home every 30 days; allowing the respondent to cancel five
    consecutive visits; failing to appreciate that the cancelled visits were a sign
    that things were not going well for the respondent and K.L.; and failing to
    exercise its authority to apprehend K.L. and take her to a hospital for medical
    care if required.

The Arguments on Appeal

[61]

The Crown appellant says that the sentencing
    judge's errors in her consideration of the mitigating factors resulted in her
    failure to recognize the full extent of the respondent's moral culpability.
    This resulted in her assignment of greater weight to these factors than the
    predominant sentencing objectives required under s. 718.01.

[62]

The Crown, relying on
R. v. Naglik
, [1993]
    3 S.C.R. 122, contends that the failure of the CAS to fulfil its mandate is
    irrelevant to the moral culpability of the respondent. The offence of s. 215(2)
    measures the respondent's conduct against an objective standard. That another
    agency failed to fulfil its obligations does not mitigate the respondents
    culpability or lessen her moral blameworthiness.

[63]

Further, the appellant continues, the sentencing
    judge mischaracterized the respondent's parenting as a mitigating factor and
    attributed the death of the deceased to a brief collapse" when the
    respondent was overwhelmed. Neither could be of service in mitigation. Viewed
    overall, the respondent's parenting revealed a pattern of neglect. She
    delegated care of K.L. to  K.L.s siblings,  failed to take K.L. to her family
    doctor for 18 months, and never arranged for any visit to a pediatrician
    despite medical advice from her family doctor to do so. Nor did K.L. die from a
    brief period of inattention  she lost about one-third of her body weight over
    a period of five and one-half weeks.

[64]

The respondent rejects the appellant's claims of
    error. It was open to the sentencing judge to consider the entire course of
    events in making her findings of fact. This involves characterizing the overall
    nature of the respondent's parenting of K.L., as well as the nature of her
    failures. The findings made by the sentencing judge were available on the
    evidence and unencumbered by any error of law or principle or misapprehensions
    of the evidence. They are entitled to deference in this court.

[65]

According to the respondent, the appellant's
    references to
Naglik
, are misplaced.
Naglik
spoke to the
mens
    rea
for the failure to provide the necessaries of life, which is an
    objective standard. Nothing said about the nature of the fault element denies a
    place in sentencing to subjective or personal factors, even if they are not a
    defence to the charge.

[66]

The respondent also takes issue with the
    admissibility of the proposed fresh evidence about her post-sentencing breaches
    of her probation order and her drug overdose. The evidence is not relevant to
    demonstrate an error in the sentencing judge's assessment of the respondent's
    rehabilitative potential. This is all the more so when the appellant does not
    seek to have the respondent reincarcerated should the appeal succeed. What is
    offered as fresh evidence is at best an incomplete account. The allegations of
    breach of probation are the subject of separate proceedings and are best left
    to be resolved in trial form.

The Governing Principles

[67]

It is unnecessary to repeat what has already
    been said about the principles that govern our review of sentences alleged to
    be unfit. Four brief points will suffice.

[68]

First, erroneous consideration of an aggravating
    or mitigating factor can justify appellate intervention only where the error
    has an impact on the sentence ultimately imposed:
Lacasse
, at paras. 43-44.

[69]

Second, weighing or balancing factors can
    constitute an error in principle only if the sentencing judge exercises their
    discretion unreasonably by emphasizing one factor or not giving enough weight
    to another. If the error in principle had no impact on the sentence, the error
    in principle analysis terminates and appellate intervention is justified only if
    the sentence is demonstrably unfit:
Friesen
, at para. 26.

[70]

Third, in sentencing offenders convicted of failing
    to provide necessaries under s. 215(2), the duration of the failure is a factor
    warranting consideration in an assessment of the gravity of the offence and the
    moral blameworthiness of the offender:
R. v. Peterson
(2005)
, 203 O.A.C. 364, at para. 56,
    leave to appeal refused, [2005] S.C.C.A. No. 539.

[71]

Finally, fresh evidence of breaches of court
    orders is relevant to show an offender's lack of respect for those orders, and thereby
    the conduct, character, and attitude of the offender. All are relevant factors
    on sentence:
Lacasse
, at paras. 117-120.

The Principles Applied

[72]

I would also give effect to this ground of
    appeal. In my respectful view, the sentencing judge erred in considering the
    failures of the CAS as a factor in determining a fit sentence for the
    respondent.

[73]

As a parent, section 215 of the
Criminal
    Code
imposed a legal duty on the respondent to provide the necessaries of
    life to K.L., her child under the age of 16 years. She failed to discharge that
    duty. That the CAS also failed to live up to its mandate is beside the point
    for the purposes of the respondent's criminal liability. Likewise, in
    connection with the gravity of offence, her degree of responsibility and her
    moral blameworthiness.

[74]

In addition, the sentencing judge's
    characterization of the nature of the omissions of the CAS and the respondent
    lacks balance. It was the respondent, not the CAS, who cancelled the in-person
    visits claiming some or all of the members of her household were ill.
    Similarly, it was the respondent who did not take K.L. to her family doctor for
    18 months or to a pediatrician at all. Finally, it was the respondent who
    ignored her friend's advice to take K.L. to the hospital days before she died.

Ground #3: Alleged Error in Application of the Fundamental
    Principle of Proportionality

[75]

The sentencing judge set out the text of s.
    718.1  the fundamental principle of proportionality  in her reasons for
    sentence. She rejected the Crown's submission that a sentence of four years was
    appropriate on the ground that the respondent was not a worst-case offender
    even though the victim was the most fragile of victims". She also rejected
    the defence position that a sentence of 30 months, less credit for
    predisposition custody was fit, I find this position to be high in all the
    circumstances of this tragedy.

The Arguments on Appeal

[76]

The appellant Crown begins with a reminder that
    the fundamental principle of proportionality has two aspects  the gravity of
    the offence and the degree of responsibility of the offender. In both respects,
    the Crown contends, the sentencing judge erred.

[77]

The Crown submits that the sentencing judge
    failed to accord sufficient weight in her proportionality analysis to the
    gravity of the respondents offence. The offence involves an extremely
    vulnerable victim. Abuse of a person under 18 is deemed an aggravating
    circumstance under s. 718.2(a)(ii.1). Abuse of a position of trust is also an
    aggravating circumstance under s. 718.2(a)(ii). The failure involved the
    necessaries of food, water, and medical attention. The period during which the
    failure occurred was five and one-half weeks for food and water and about 18 months
    for medical attention. The offence had a significant impact on the victim  her
    death  another aggravating circumstance under s. 718.2 (a)(iii.1)

[78]

Similarly, the Crown continues, the sentencing
    judge failed to accord sufficient weight to the degree of the respondent's
    responsibility in her proportionality analysis. The respondent was the sole
    principal who committed an offence against a vulnerable victim to whom she
    stood in a position of trust. Aware that K.L. required constant care, the
    respondent chose on multiple occasions to do nothing. She failed to take K.L.
    to a doctor and to arrange for a specialist despite medical advice to do so.
    She abdicated her obligation to care for K.L. to her other children and
    friends. This was no momentary lapse or collapse" as the sentencing judge
    characterized it.

[79]

The respondent acknowledges that the sentencing
    judge could have imposed a lengthier custodial sentence than 17 months. That
    she failed to do so, however, does not mean that she erred in her application
    of the fundamental principle of proportionality. The sentence imposed falls
    within the applicable range of sentence, thus it cannot be said to constitute
    an error in principle. The sentencing judge considered the gravity of the
    respondent's offence, her degree of responsibility, and her moral
    blameworthiness. That another judge might have weighed them differently, as
    this court might have done, does not permit appellate intervention.

The Governing Principles

[80]

In addition to what has already been said about
    the principles that govern our review of the fitness of sentences imposed at
    trial, three brief points warrant mention.

(1)

The place
    of proportionality in the imposition and review of sentences

[81]

Section 718.1 codifies proportionality as the
    fundamental principle of sentencing. All sentencing starts with the principle
    that sentences must be proportionate to two elements:

·

the gravity of the offence; and

·

the degree of responsibility of the offender.

[82]

The related principle of parity, that similar
    offenders who commit similar offences in similar circumstances should receive
    similar sentences, is an expression of proportionality:
Friesen
, at paras.
    30-32.

(2)

The role of maximum sentences

[83]

Maximum sentences are linked to proportionality
    in that they help determine one of its essential components  the gravity of
    the offence. The gravity of the offence contains both subjective and objective
    components. Subjective gravity relates to the circumstances surrounding the
    commission of the offence. The maximum sentence Parliament designates for an
    offence determines the objective gravity, that is to say, the relative
    severity, of that offence. A decision by Parliament to increase the maximum
    sentence for an offence demonstrates Parliament's desire that an offence be
    punished more harshly. This shifts the distribution of proportionate sentences
    for that offence:
Friesen
, at paras. 96-97;
M. (C.A.)
, at para.
    36;
Lacasse
, at para. 7.

[84]

The final point relating to the role of maximum
    sentences is that the imposition of maximum sentences is not confined to cases
    involving worst offences committed by worst offenders. A maximum sentence is
    appropriate, but only appropriate, if the offence is of sufficient gravity and
    the offender displays sufficient blameworthiness:
R. v. Cheddesingh
,
    2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1.

The Principles Applied

[85]

I would also give effect to this ground of
    appeal. In my respectful view, the sentence imposed does not give effect to the
    fundamental sentencing principle of proportionality.

[86]

The sentencing judge, who did not have the
    benefit of the reasons in
Friesen
, did not consider the increase in
    the maximum punishment of the offence of failure to provide the necessaries of
    life as an indication that higher punishments were required for this offence.
    Further, she appears to have diminished the subjective gravity of the offence
    by characterizing it as a momentary lapse under a confluence of unfortunate
    life events. Such a conclusion is not warranted upon a consideration of the
    evidence as a whole.

[87]

In a similar way, the sentencing judge diluted
    the degree of responsibility of the respondent by her reference to the
    inadequacies of the CAS in discharging its supervisory role.

Ground #4: A Demonstrably Unfit Sentence

[88]

The final ground of appeal alleges that the
    sentencing judge imposed a sentence that was demonstrably unfit.

The Reasons of the Sentencing Judge

[89]

Counsel on both sides took the position that a
    penitentiary sentence was warranted, though they differed about its length and
    the amount of enhanced credit that the respondent should receive for her
    pre-disposition custody.

[90]

The sentencing judge rejected the submissions of counsel on the
    basis that the respondent was not a worst-case offender" and that the
    defence position was high". She then said at para. 198, 
Given that Meredith Lis has enhanced credit for pre-trial custody of 17
    months her sentence will be one of time-served. I have considered the totality
    principle of sentencing in my final decision.

The Arguments on Appeal

[91]

The Crown appellant says that a sentence of
    imprisonment of 17 months is a demonstrably unfit sentence for the respondent.
    A fit sentence required consideration of the intrinsic seriousness and harm caused
    by offences involving the abuse of children. This offence involved a protracted
    breach of trust in respect of an extremely vulnerable victim. Denunciation and
    deterrence were the primary sentencing objectives, not rehabilitation. A
    lengthy penitentiary sentence was required to give effect to Parliaments
    direction as expressed in the increase in the maximum sentence.

[92]

The Crown contends that the principles announced
    by this court in the sexual abuse cases of
R. v. D. (D.)
(2002), 58
    O.R. (3d) 788 (C.A.) and
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d)
    81, should form part of a principled approach to sentencing in all cases of
    child neglect. This reflects a harm-based approach cognizant of the
    vulnerability of children, the high moral culpability of the offence, and of
    neglect as a form of child abuse requiring significant sanctions.

[93]

The respondent says that the sentence imposed is
    not demonstrably unfit. It falls within the range of sentence applicable in
    such cases. True, the sentencing judge could have imposed a sentence of greater
    length, but her failure to do so does not mean that the sentence imposed is
    demonstrably unfit. This sentence is not so clearly unreasonable or inadequate
    as to amount to a substantial and marked departure from the norm.

[94]

The respondent rejects the appellant's
    submission that the sentencing ranges prescribed in
D. (D.)
and
Woodward
for cases involving the sexual abuse of children should inform the range of
    sentence applicable in prosecutions for failure to provide necessaries of life
    to children of equivalent age. These are non-comparables for sentencing
    purposes. Some sexual offences carry a statutory minimum and maximum sentence
    that exceeds that applicable for failure to provide necessaries of life. What
    is more, the teachings of
Friesen
are limited to sexual offences.

The Governing Principles

[95]

A sentence may be demonstrably unfit even if the
    sentencing judge has made no error in imposing it. The sentence is demonstrably
    unfit if it is clearly unreasonable, clearly inadequate, or because it
    represents a substantial and marked departure". This reflects a very high
    threshold to meet before an appellate court can intervene after reviewing the
    fitness of a sentence:
Lacasse
, at para. 52.

[96]

The inquiry involved when a sentence is
    demonstrably unfit must focus on the fundamental principle of sentencing  proportionality
     codified in s. 718.1. A sentence is demonstrably unfit if it constitutes an
    unreasonable departure from this principle. Proportionality is determined not
    only on an individual basis, that is to say, in relation to the individual
    accused and her offence, but also by comparison with sentences imposed for
    similar offences committed by similar offenders in similar circumstances:
Lacasse
,
    at para. 53.

[97]

A determination of fitness also requires that we
    consider the sentencing objectives of s. 718 and the other principles and
    factors set out in Part XXIII:
Lacasse
, at para. 54.

The Principles Applied

[98]

In my respectful view, the sentence imposed in
    this case was demonstrably unfit. It represented a substantial and marked
    departure from the fundamental principle of proportionality.

[99]

This sentence fails to respect the primacy of
    the sentencing objectives of denunciation and deterrence as required by s.
    718.01 of the
Criminal Code
. It elevates the objective of
    rehabilitation to a place of prominence that is unwarranted, not only because
    of the mandate of s. 718.01, but also on a consideration of the evidence as a
    whole, including the fresh evidence. This offence was no momentary lapse in
    judgment, rather it extended over several weeks in connection with food and
    water and months for medical attention. The sentence also failed to reflect the
    consequences of the increased maximum punishment enacted by Parliament.

Conclusion

[100]

In my respectful view, a fit sentence in the circumstances of the offence
    and the offender is three to three and one-half years in a penitentiary.
    Retaining the credit of 17 months for pre-disposition custody, this would leave
    a
remanet
of between 19 and 25 months.

Disposition

[101]

For these reasons, I would grant leave to appeal, allow the appeal,
    and set aside the custodial portion of the sentence imposed at trial. In place
    of the one day sentence imposed by the sentencing judge, I would impose a
    sentence of three years in a penitentiary on the count of failure to provide
    necessaries of life. From that sentence, I would deduct 17 months as credit for
    pre-disposition custody. This leaves a custodial
remanet
of 19 months.
    The Crown asks us not to reincarcerate the respondent. I would stay the
    execution of the 19 month
remanet
of the sentence. The probation
    order, ancillary orders imposed by the sentencing judge, and the concurrent
    sentences of one day on each of the remaining counts remain in force.

Released: September 3, 2020

D.W.

David Watt J.A.

I agree Harvison Young J.A.

I agree S. Coroza J.A.


