



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dedeckere, 2017 ONCA 799

DATE:  20171018

DOCKET: C62914

Pepall, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Constantinus Dedeckere

Appellant

Apple Newton-Smith, for the appellant

Rebecca DeFilippis, for the respondent

Heard: October 11, 2017

On appeal from the sentence imposed on October 12, 2016 by
    Justice John S. Skowronski of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant attempted to commit suicide by driving his vehicle into a
    hydro pole on a rural road.  As a result of the collision, debris struck the
    victim, seriously injuring her.  At the time, the appellant was an in-patient
    on temporary leave from the Mental Health Care facility at Parkwood Hospital.

[2]

The victim was badly injured.  Due to the debris, she had a hole in her
    skull that required surgery and time in rehabilitation.  Fourteen victim impact
    statements were filed at the sentencing hearing, including one from the victim.

[3]

The appellant pled guilty to a charge of criminal negligence causing
    bodily harm for which he was sentenced to two years imprisonment in a
    penitentiary followed by three years probation and a six-year driving
    prohibition.

[4]

He seeks leave to appeal his sentence.  He submits that the sentencing judge
    erred in sentencing the appellant on the basis of denunciation and deterrence
    to the exclusion of all other principles of sentencing and failed to consider
    the principles of restraint and proportionality.  Moreover, he submits that the
    sentencing judge erred by failing to give adequate meaningful consideration to
    the appellants psychiatric issues and rehabilitation.  The appellant argues
    that the sentence imposed was demonstrably unfit.  He also seeks leave to file
    fresh evidence showing that he has been diagnosed with kidney cancer.

[5]

For the following reasons, we granted leave to appeal sentence and
    allowed the sentence appeal.

Background Facts

[6]

The appellant was 58 years old at the time of the incident, was not
    impaired by alcohol or drugs, and had no criminal record.  There was no dispute
    that his sole intention was to kill himself.  He had a lengthy history of
    mental illness and failed suicide attempts.  He was first diagnosed with
    bipolar affective disorder in 1980 following a manic episode.  He required
    multiple hospitalizations in 1980, 1981, 1994, 1995, and 2014 due to
    depression.  Approximately two years before the incident, the appellant was
    taken off his medication as he had developed a toxicity to it. His condition
    gradually deteriorated, leading to his hospitalization in early 2014.  He was subsequently
    admitted to the mental health unit of the St. Thomas Elgin General Hospital a
    number of times that year.  By December 2014, he had a regular treating
    psychiatrist and later was an in-patient at the Parkwood Institute Mental Health
    Care facility.

[7]

The appellant was called to the bar in 1984 but ceased to practice in
    2014.  As mentioned, on the day of the incident, he was on a day pass from
    Parkwood.  He had also received a letter from the Law Society of Upper Canada
    reporting that he would be disbarred.  This prompted his suicide attempt.

[8]

After the incident, he was released on bail and returned to the lockdown
    unit at Parkwood.  In 2016, he was discharged to his home.  As a condition of
    his bail, he was not permitted to leave his home without either a member of his
    family or the Parkwood team.  His time on bail was without incident.  He is
    genuinely remorseful for what he did.  He has a loving and supportive family
    including his wife, four children, and two grandchildren.

The Sentence

[9]

Before the sentencing judge, the Crown sought a custodial sentence of two
    to two-and-a-half years and the defence sought a suspended sentence and three years
    probation.

[10]

In
    sentencing the appellant to two years in penitentiary, the sentencing judge
    identified certain mitigating factors: the appellants lack of a criminal record,
    his guilty plea, his genuine remorse, and his supportive family and friends. 
    The sentencing judge identified the only aggravating factor as the offence
    itself, including the significant impact it had on the victim. He also
    considered the powerful victim impact statements.

[11]

The
    sentencing judge referred to the principles of sentencing set out in s. 718 of
    the
Criminal Code
,
R.S.C.
    1985, c. C-46, stating that deterrence and denunciation should be treated as
    the primary objectives in sentencing for the offence of criminal negligence
    causing bodily harm, and that both general and specific deterrence need[ed] to
    be addressed. With respect to the former he stated that it is important to
    dissuade those who may be self-destructive from acting on such ideations to
    their detriment and from exposing the innocent bystanders, as it were, to
    possible physical danger.  As for specific deterrence, he noted that the
    appellant did not adequately examine or even consider the impact his suicide
    plan could have had on others on the roadway.  The sentencing judge therefore concluded
    that probation would not be adequate to achieve the necessary level of
    deterrence and denunciation.

Analysis

[12]

We
    recognize that absent an error in law or an error in principle that has an
    impact on the sentence, or the imposition of a demonstrably unfit sentence, deference
    is owed to the decision of a sentencing judge: see
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 64, at para. 11.  However, for the following reasons,
    such deference is not justified in the circumstances of this case.

[13]

Although
    the sentencing judge mentioned rehabilitation as a principle of sentencing, he
    sentenced the appellant on the basis of deterrence and denunciation to the
    exclusion of all other relevant sentencing principles.  He failed to consider
    restraint and proportionality, and did not give meaningful consideration in his
    analysis to the appellants mental health and rehabilitation.  In essence, the
    sentencing judge determined that specific deterrence could only be met by a
    custodial term due to the appellant being chronically suicidal.

[14]

Specific
    deterrence has little relevance in the context of suicide and general
    deterrence is a factor of decreased significance when sentencing those whose
    behaviour is driven by mental illness.  As explained by Gillese J.A. in
R.
    v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643,
[1]
at para. 38, when mental health problems play a central role in the commission
    of the offence  deterrence and punishment assume less importance.  Here, the
    Crown acknowledged that the appellants mental illness played a central role in
    the offence.

[15]

Moreover,
    the sentencing judge failed to consider that the moral blameworthiness of the
    appellant was less than that of someone who had set out to do such harm to
    another.  The sentencing judge attached moral blameworthiness to the
    appellants desire to take his own life rather than considering the impact that
    the appellants bipolar disorder and depression had on his judgment.

[16]

The
    sentencing judge should have considered the appellants serious and
    longstanding mental health issues as a central component of the appellants
    circumstances. Instead, the sentencing judge focused on the appellants
    chronically suicidal behaviours and continued struggles with his mental
    illness as a basis for incarceration.

[17]

Clearly
    these errors impacted the two-year penitentiary sentence that the sentencing
    judge imposed, a sentence that was unfit in the circumstances.

[18]

Accordingly,
    it falls to this court to sentence the appellant anew.

[19]

The
    appellant is over 60 years of age and has suffered from mental illness for many
    years.  He is very remorseful and did not intend to harm the victim.  No
    alcohol or drugs were involved.  This was his first criminal offense.  He has
    supportive family and friends.  His period on bail was without incident.

[20]

The
    victim impact statements are moving and profound.  The victim was seriously
    injured and negatively affected by the appellants conduct.

[21]

The
    appellant has been incarcerated for one year.  Without minimizing the
    seriousness of the offence and the impact on the victim, a sentence of time
    served and two years probation is fit and adequate to reflect the principles
    of sentencing including proportionality.  The ancillary orders will remain the
    same.

[22]

In
    light of this disposition, it is unnecessary to address the motion to admit
    fresh evidence.

[23]

In
    conclusion, leave to appeal sentence is granted.  The sentence appeal is
    allowed and the sentence is varied from two years imprisonment to time served
    and two years probation, all other terms to remain the same.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.





[1]
It does not
appear that this case was brought to the
    sentencing judges attention.


