



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Plein, 2018 ONCA 748

DATE: 20180914

DOCKET: C61099

Sharpe, Brown and Paciocco
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Peter Plein

Appellant

Brad Greenshields, for the appellant

Peter Fraser, for the respondent

Heard: June 26, 2018

On appeal from the convictions entered on June 13, 2014 and
    the sentence imposed on January 21, 2015 by Justice Hugh K. OConnell of the Superior
    Court of Justice, sitting without a jury.

Paciocco J.A.

OVERVIEW

[1]

After his father died in 2006, the appellant, Kevin Plein, became the
    caregiver for his mother, Erika Plein, and his sister, Cindy Plein. Both women
    were blind and cognitively impaired. He lived alone with them and cared for
    them for several years.

[2]

But when Cindy suffered serious burns in early June 2009 after her
    nightgown caught fire on the stove, Mr. Plein did not seek medical help for her.
    On June 12, 2009, after she languished in her room for several days, Cindy,
    then 48 years of age, suffered a horrific death from septic shock resulting
    from her infected wounds. It was only when she collapsed as she was dying that
    Mr. Plein called 911.

[3]

On April 10, 2010, Mr. Plein called 911 again when his 72 year old
    mother, Erika, also collapsed and then died from starvation. She was 69 pounds
    at the time, and catechetic, or suffering from a severe form of malnutrition.
    The emergency room doctor had never seen anything like it, other than in
    concentration camp pictures.

[4]

After his mothers death, Mr. Plein was charged with criminal offences
    arising from the deaths of both women.

[5]

At trial, Mr. Plein faced three charges relating to Cindy, each based on
    the theory that he had failed to discharge his legal duty to provide her with medical
    care after her burn that if not received would endanger her life. Those charges
    were: (1) failing to provide the necessaries of life, contrary to
Criminal
    Code
, s. 215(1)(c); (2) criminal negligence causing death, contrary to
Criminal
    Code
, s. 220; and (3) unlawful act manslaughter, contrary to
Criminal
    Code
, s. 236.

[6]

Mr. Plein faced the same three charges with respect to the death of his
    mother, Erika, but those charges were based on his legal duty to provide Erika with
    nutritional sustenance that if not received would endanger her life.

[7]

Clear evidence was presented at trial that Mr. Plein had assumed care of
    the two women, and that they were incapable of caring for themselves. It was
    not contested, therefore, that Mr. Plein had a legal duty to provide them with
    the necessaries of life.

[8]

The evidence was overwhelming that the two women required care that they
    were unable to provide themselves: medical care in Cindys case, and
    nutritional care for Erika. Photographs of their conditions, and the conditions
    in which they were living are graphic and disturbing. Their need for assistance
    would have been obvious to any reasonable person.

[9]

Proof that Cindy died because of the absence of medical attention, and
    Erika, from the lack of nutrition, was also decisive.

[10]

Mr.
    Plein did not contest any of this. He defended against the charges by arguing
    that he was providing reasonable care for the women when they died, providing
    first aid to Cindy, and supplying food to Erika.

[11]

Mr.
    Plein presented no expert evidence relating to his cognitive capacity to
    discharge his legal obligations at trial, but lay witnesses offered evidence
    suggesting that his intellectual abilities are limited.

[12]

After
    a Superior Court judge alone trial, Mr. Plein was found guilty of all three charges
    relating to Erikas death. He was found not guilty of manslaughter in Cindys death,
    but guilty of the other two charges.

[13]

Because
    of double-jeopardy concerns, Mr. Plein was sentenced only for the manslaughter
    of Erika Plein, receiving a 10 year sentence, and for criminal negligence in
    the death of Cindy Plein, receiving an eight year consecutive sentence.

[14]

Mr.
    Plein appeals all of his convictions and sentence.

[15]

For
    the reasons that follow, I would dismiss Mr. Pleins conviction appeal. I
    would, however, grant leave to appeal his sentence and allow his sentence appeal.
    I would reduce his sentence to a global sentence of 14 years, minus time served
    credited at 1.5:1, for a net sentence of 10 years and 2 months incarceration.

ISSUES

[16]

Mr.
    Plein contends that the trial judge erred in convicting him of criminal
    negligence in Cindys death. He says that this verdict is inconsistent with his
    acquittal of manslaughter in respect of her death, since both charges carry the
    same elements and both charges were prosecuted using the same theory. He argues
    that the criminal negligence conviction must therefore be set aside.

[17]

The
    Crown concedes that the verdicts are inconsistent, but argues that the criminal
    negligence conviction should nonetheless be upheld since the manslaughter
    acquittal arose from a clear legal error and the criminal negligence conviction
    is nevertheless reasonable and supported by the evidence.

[18]

Mr.
    Plein also seeks leave to admit fresh expert evidence relating to his limited cognitive
    abilities and his neuropsychological condition. He wants to rely on the fresh
    evidence to argue that a new trial should be held on the remaining charges. He
    claims that this evidence is capable of raising a reasonable doubt about his capacity
    to discharge the legal duties that ground his convictions.

[19]

The
    Crown contests both the admissibility and the sufficiency of this fresh evidence
    to warrant a new trial.

[20]

Mr.
    Plein also appeals his sentence. He argues that: (1) the trial judge did not
    give proper effect to the principle of totality in arriving at his global
    sentence; (2) if admitted, the fresh evidence about his cognitive abilities shows
    that his sentence is disproportionate given his moral blameworthiness; and (3)
    in any event, the trial judge erred by relying on an unconstitutional
    provision,
Criminal Code
, s. 719(3.1), to deny him enhanced credit for
    presentence custody served after he breached his bail conditions.

[21]

The
    Crown concedes that the sentence appeal must be allowed on ground (3). When the
    trial judge denied enhanced credit, he did not have the benefit of the decision
    in
R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180 that held
    s. 719(3.1) to be unconstitutional and therefore of no effect. Mr. Plein should
    have received additional presentence credit. The Crown opposes the other
    grounds for the sentence appeal.

[22]

The
    issues requiring resolution can therefore be stated as follows:

A.

Should the inconsistent criminal negligence causing death verdict relating
    to Cindy be set aside and an acquittal entered?

B.

Should the proposed fresh evidence relating to Mr. Pleins cognitive and
    neuropsychological abilities be admitted on the issue of Mr. Pleins capacity
    to commit the offences charged, and if so, should a new trial on the remaining
    charges be ordered?

C.

Should the proposed fresh evidence relating to Mr. Pleins cognitive
    abilities be admitted on the issue of the fitness of his sentence, and if so,
    should the sentence imposed be set aside?

D.

Did the trial judge err in applying the principle of totality?

ANALYSIS

A.

The Inconsistent Verdict Appeal

[23]

In
    my view, the conviction for criminal negligence causing death relating to Cindy
    should not be set aside. The criminal negligence causing death conviction is
    inconsistent with the manslaughter acquittal, but the criminal negligence
    causing death conviction is reasonable, supported by the evidence, and is
    lawfully correct based on facts properly found by the trial judge. In contrast,
    the manslaughter acquittal arose from a manifest legal error. In my view, the
    law does not require an otherwise unassailable conviction to be set aside in a
    judge alone trial because an inconsistent, demonstrably unsound acquittal has
    been entered on a functionally identical charge in the same proceedings.

(1)

The verdicts are inconsistent

[24]

The
    parties agree that, in this case, the criminal negligence causing death charge
    and the manslaughter charge are indistinguishable. They agree that the acquittal
    on one and conviction on the other means that the verdicts are inconsistent. That
    proposition is correct, but not immediately obvious.

[25]

As McLachlin J. (as she then was) said in
R.
    v. Creighton
, [1993] 3 S.C.R. 3, p. 42, the offence of
    manslaughter covers a wide variety of circumstances. It encompasses all forms
    of culpable homicide other than murder or infanticide:
Criminal Code
, s. 234. Culpable homicide, as defined in
Criminal
    Code
, s. 222(5), includes death caused (a) by means of
    an unlawful act and (b) by criminal negligence.

[26]

Had
    Mr. Plein been prosecuted for criminal negligence based manslaughter, the complete
    overlap with the criminal negligence causing death charge would have been patent.
    As Trotter J. (as he then was) observed in
R. v. Aleksev
, 2016 ONSC
    1834, [2016] O.J. No. 1962, at para. 57, manslaughter based on criminal
    negligence is indistinguishable from criminal negligence causing death.

[27]

But
    Mr. Plein was not prosecuted for manslaughter based on criminal negligence. He
    was prosecuted instead for unlawful act manslaughter.

[28]

Still,
    the circle is closed because both the criminal negligence causing death charge,
    and the unlawful act manslaughter charge, are based on the same underlying
    unlawful omission. And the elements of the two offences, while articulated
    differently, are materially the same. Moreover, close examination of the trial
    judges reasons for judgment and court record provides no rational or logical
    basis that can reconcile the verdicts:
R. v. Pittiman
, 2006 SCC 9, [2006]
    1 S.C.R. 381, at para. 8; and
R. v. McShannock
, 55 C.C.C. (2d) 53 (Ont.
    C.A.), [1980] O.J. No. 128, at pp. 55-56.

[29]

To
    succeed in this criminal negligence causing death prosecution, the Crown had to
    prove beyond a reasonable doubt that:

·

Mr. Plein engaged in an unlawful omission, namely, failing to discharge
    his legal duty to provide Cindy with necessary medical care after she was badly
    burned;

·

this unlawful omission showed a wanton and reckless disregard for
    Cindys life or safety, in the sense that it was a marked and substantial
    departure from the conduct of a reasonably prudent person in circumstances in
    which the accused either recognized and ran an obvious and serious risk or,
    alternatively, gave no thought to that risk to Cindys life or safety:
R.
    v. A.D.H.
, 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61; and

·

the unlawful omission caused Cindys death.

[30]

To
    succeed in the unlawful act manslaughter prosecution, the Crown had to prove
    beyond a reasonable doubt that:

·

Mr. Plein engaged in an unlawful omission, namely, failing to discharge
    his legal duty to provide Cindy with necessary medical care after she was badly
    burned;

·

this unlawful omission was inherently dangerous, in that it
    presented an objectively foreseeable risk of causing injury to Cindy:
Creighton
,
    at pp. 42-45;

·

the unlawful omission was a marked departure from the standards
    of a reasonable person in all of the circumstances:
Creighton
, at p. 43;
    and

·

the unlawful omission caused Cindys death.

[31]

It
    is readily apparent that Mr. Pleins manslaughter acquittal cannot be logically
    and rationally reconciled with his conviction of criminal negligence causing
    death. The verdicts are inconsistent.

(2)

The source of the inconsistency

[32]

While
    the verdicts in this case cannot be logically and rationally reconciled, the
    inconsistency between them can be evidently explained from the reasons for judgment
    in this judge alone trial. The trial judge simply did not appreciate that both
    charges required consistent outcomes because he misunderstood and misapplied
    the law relating to the manslaughter offence. Thus these inconsistent verdicts
    do not emanate from some irreconcilable or uncertain findings of fact. Rather,
    the explanation for the inconsistent verdicts is that the trial judge erred in
    law in acquitting Mr. Plein of the manslaughter charge involving Cindy Plein.

[33]

This
    is the explanation the trial judge gave:

In relation to manslaughter on Cindy Plein, on the evidence, I
    was not satisfied that the actions of Mr. Kevin Plein should rise to the moral
    culpability of manslaughter.

I was, I might say [] perhaps overly generous in my arrival of
    an acquittal on that count but I found that the causation issue was such that I
    could not be satisfied beyond a reasonable doubt that Mr. Plein necessarily
    knew that the injury to Cindy would precipitate and be the contributing cause
    of death that it did.

[34]

Leaving
    aside that this explanation improperly conflates the distinct causation and
    foreseeability of bodily harm elements, it is wrong in law in two material
    ways.

[35]

First,
    the proper question is not what the
subject
, Mr. Plein, knew. The
mens
    rea
for manslaughter is not
subjective
, but rather objective. As
    McLachlin J. explained in
Creighton
, at p. 58, objective
mens rea
is not concerned with what was actually in the accuseds mind, but with what
    should have been there, had the accused proceeded reasonably.

[36]

Second,
    death does not have to be foreseeable in a manslaughter prosecution.
    [F]oreseeability of the risk of bodily harm alone will properly result in a
    conviction for manslaughter:
Creighton
, at p. 50.

[37]

These
    errors explain Mr. Pleins manslaughter acquittal in Cindys death. The trial
    judge made clear that he was acquitting Mr. Plein because he was not satisfied
    that Mr. Plein would have understood the risk of death to his sister due to septic
    shock from an infected burn. This was not a proper basis for acquittal. When
    the trial judge properly applied the objective standards to his factual
    findings on the functionally identical criminal negligence causing death count
     the same standard he should have applied to the manslaughter charge  he
    convicted.

(3)

The consequence of the inconsistency in this case

[38]

Mr.
    Plein argues that his criminal negligence causing death conviction must be set
    aside because of its inconsistency with his manslaughter acquittal. I do not
    agree. [B]efore an appellate court may interfere with a verdict on the ground
    it is inconsistent, the court must find that the verdict is
unreasonable
:
Pittiman
, at para. 6 (emphasis in original). This limitation on the
    authority of appellate courts to set aside inconsistent verdicts arises
    because, as Charron J. explained in that same paragraph:

A court of appeals power to set aside a verdict of guilt on
    the ground that is it is inconsistent is found under s. 686(1)(a)(i) of the
Criminal
    Code
which provides that the court may allow the appeal where it is of the
    opinion that
the verdict should be set aside on the ground that it is
    unreasonable
or cannot be supported by the evidence.

[Emphasis in original.]

[39]

Here,
    the criminal negligence causing death conviction is reasonable and can be
    supported by the evidence. Indeed, it is supported by proper factual findings
    expressly made by the trial judge, and there is nothing of substance in the
    manslaughter acquittal that calls that conviction into question. It would
    therefore be improper to set the criminal negligence causing death conviction
    aside.

[40]

In
R. v. J.F.
, 2008 SCC 60, [2008] 3 S.C.R. 215, a case heavily relied upon
    by Mr. Plein, Fish J. said at para. 23, that verdicts are deemed inconsistent
     and therefore unreasonable as a matter of law  if no
properly instructed
jury could reasonably have returned them both (emphasis in original). Mr.
    Pleins position is that given that the two verdicts in his case could not both
    have been arrived at by a properly instructed jury, even if the conviction is
    entirely sustainable in law based on appropriate findings of fact made by the
    trial judge, the conviction must be deemed to be unreasonable and set aside simply
    by virtue of its inconsistency with the acquittal.

[41]

I
    disagree. In my view, the comments made in
J.F.
must be understood in
    context.
J.F.
involved inconsistent verdicts rendered by a jury. Juries,
    of course, return general verdicts, without reasons explaining their decision.
    It was impossible for the court in the circumstances of
J.F.
to
    determine why the inconsistent verdicts were returned. As Fish J. pointed out,
    at para. 11, the verdicts at trial  [were] not only inconsistent, but
    incomprehensible as well.

[42]

It
    was in this context that Fish J. said, at para. 21, that even if the trial
    judge had misdirected the jury, he would decline to uphold the conviction on
    the ground that the two verdicts could be reconciled on the basis of a legal
    error at trial. This makes perfect sense where it cannot truly be known whether
    a legally erroneous misdirection caused the inconsistent verdicts. The jury may
    have based its decision to acquit on some other ground of fact or law, or it
    may have misapplied the law, not in arriving at the acquittal but when
    convicting the accused. In such circumstances, deeming the conviction to be
    unreasonable is an appropriate outcome, for that conviction defies explanation
    in the face of the opposing acquittal. In contrast, it is not an appropriate
    outcome to deem a demonstrably reasonable conviction to be unreasonable because
    of an inconsistent acquittal that is grounded in a clear legal error.

[43]

I
    recognize that there is a certain illogic in allowing a conviction to be entered
    against an accused person where they have been finally acquitted of essentially
    the same criminal allegation. There are hints of this thinking in
J.F.
,
    at para. 41. Justice Fish said:

The respondents acquittal was not appealed. To order a new
    trial in these circumstances would deprive the respondent of the benefit of
    that acquittal, now final, and expose him on the new trial to a finding that he
    did in fact commit the offence of which he was acquitted, definitively, by the
    jury in this case.

[44]

These
    comments, too, must be understood in context. Justice Fish made them when
    deciding whether to order an acquittal or a new trial, after finding
    incomprehensible, inconsistent verdicts. Since there was no explanation
    available for the inconsistent verdicts in
J.F.
, Fish J. had no basis
    for questioning the acquittal. He therefore treated it as a factual finding
    that the accused did not fail in his duty to protect his child:
J.F.
, at
    para. 40. That being so, it would not be proper to order a new trial after
    setting aside the inconsistent conviction, since the integrity of a conviction from
    the new trial would also be compromised by its inconsistency with the factual
    finding that the final acquittal was taken to represent. The same concerns for
    potential factual inconsistencies animated this courts decisions in
R. v.
    Catton
, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 25 and
R. v. Walia
,
    2018 ONCA 197, at para. 17.

[45]

This
    case is not
J.F
. Here, it would be contrary to the known facts to treat
    Mr. Pleins manslaughter acquittal as a factual finding inconsistent with the
    elements of the offence of criminal negligence causing death. The reasons for judgment,
    issued by the trial judge to explain that acquittal, show that he never
    purported to base that acquittal on factual findings hostile to a proper
    criminal negligence causing death conviction. The manslaughter acquittal is a
    verdict inconsistent with the criminal negligence causing death conviction in
    name only, since the trial judge did not attempt to apply the same legal
    standards to the two charges, and made no factual findings in rendering the
    acquittal that are inconsistent with the factual findings he made in support of
    the criminal negligence causing death conviction. As a matter of substance, the
    manslaughter acquittal does nothing to undercut the integrity of the criminal
    negligence causing death conviction.

[46]

Nor
    do I read Fish J. as holding that an inconsistent conviction must be struck
    down unless the Crown successfully appeals the inconsistent acquittal. He found
    the absence of a Crown appeal problematic in that case, in part because the
    Crown was claiming that the trial judge made a legal error in a direction to
    which the trial Crown had acquiesced:
J.F.
, at para. 23. More
    importantly, Fish J. had no reason on the record before him to doubt the
    integrity of the acquittal that had been registered and left undisturbed.

[47]

To
    be sure, things would have been cleaner in this case had the acquittal been
    appealed and set aside. As things stand, if we uphold the criminal negligence
    causing death conviction there will be facially inconsistent verdicts recorded
    in Mr. Pleins case. In my view, however, the Crown does not have to appeal and
    set aside the acquittal in order to resist Mr. Pleins challenge to the
    reasonableness of his criminal negligence conviction. When an accused person
    asks to have an inconsistent conviction set aside, the reasons for that
    inconsistency are put in issue. As I see it, where, on an examination of those
    reasons, the acquittal shows itself to be defective, an appeal court must take
    the fact the acquittal is wrongful into account in deciding whether to grant
    the relief the appellant requests.

[48]

Of
    course, the error in an acquittal will not always be as obvious as it is in
    this case. The Crown would be well advised, if it wishes to resist an
    inconsistent verdict appeal, to cross-appeal an acquittal it wishes to call
    into question. Even where the Crown identifies problems with the acquittal
    outside of the ordinary appeal period it can seek an extension of time to
    cross-appeal where that extension would not prejudice the defence.

[49]

Still,
    in my view, there is no rigid legal principle that requires,
ab initio
,
    that inconsistent verdicts can never be left to stand. If there were such a
    principle, there would be no need for an appellate court to ask, when faced
    with inconsistent verdicts, whether the challenged verdict is unreasonable, as
Pittiman
requires.

[50]

Similarly,
    as jealously guarded as acquittals are, the law does not always require that
    they be treated as inviolable declarations of innocence unless set aside. In
R.
    v. Riley
(1992), 11 O.R. (3d) 151 (C.A.), leave to appeal to S.C.C. refused
    [1993] 2 S.C.R. x (note), for example, this court recognized that a sexual
    assault acquittal is not to be taken, on its own, as affirmative proof that the
    complainant made a false allegation. And in
Rizzo v. Hanover Insurance Co.
(1993), 103 D.L.R. (4th) 577 (Ont. C.A.), at pp. 579-80, leave to appeal to
    S.C.C. refused [1994] 1 S.C.R. x (note), it was held that a prior acquittal is
    not admissible in a subsequent civil proceeding to prove the accused did not
    commit the offence to a civil standard. Here, it is in the interests of justice
    to look at the substance of Mr. Pleins acquittal rather than to treat it as a
    formal, impenetrable obstacle to upholding a proper conviction.

[51]

Ultimately,
    it is not illogical or contrary to the interests of justice to uphold a
    demonstrably valid criminal negligence causing death conviction where there is
    a final but demonstrably wrongful acquittal registered after the same trial on
    a manslaughter charge that alleges the same essential offence. It would,
    however, be illogical, contrary to the interests of justice, and contrary to
    the appeal powers conferred by s. 686(1)(a)(i) to strike down that reasonable
    conviction because the trial judge happened to enter a wrongful manslaughter
    acquittal that was grounded on factual findings that are not inconsistent with
    the criminal negligence causing death conviction that Mr. Plein seeks to
    attack.

[52]

I
    would not set aside the criminal negligence causing death conviction.

B.

The Fresh Evidence Application and The Findings of Guilt

[53]

Should
    the proposed fresh evidence relating to Mr. Pleins cognitive abilities and
    neuropsychological condition be admitted on the issue of Mr. Pleins capacity
    to commit the offences charged, and if so, should a new trial on the remaining
    charges be ordered? In my view, leave to admit the fresh evidence on this issue
    should be denied.

[54]

Mr.
    Plein is correct that incapacity is an answer to all of the crimes with which
    he was originally charged. In
Creighton
, at p. 63-65, the Supreme Court
    held that an offender charged with manslaughter or another penal negligence
    offence will be morally innocent and thereby excused from a finding of guilt where
    the person is shown to lack the capacity to appreciate the nature and quality
    or consequences of his or her acts. All of the charges Mr. Plein faced are
    crimes of manslaughter or penal negligence. The capacity inquiry in his case
    relates to whether he had the capacity to see the risks posed by his failure to
    provide the necessaries of life to his sister and mother.

[55]

The
    fresh evidence Mr. Plein pressed for admission is provided by Dr. Duncan Day.
    Dr. Day is a clinical psychologist. He conducted a neuropsychological
    assessment of Mr. Plein and consulted additional information about the material
    events and the prosecution. In the proposed fresh evidence, Dr. Day offers the
    opinion that Mr. Plein did not have the capacity to provide the necessaries of
    life to his sister and mother.

[56]

Fresh
    evidence is admissible on appeal where it is in the interests of justice to
    receive it:
Criminal Code
, ss. 683(1)(c) and (d). The four-part test
    from
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775 has long given
    structure to this interests of justice evaluation. Its four components were
    recast into a convenient three-part inquiry in
R. v. Truscott
, 2007 ONCA
    575, 225 C.C.C. (3d) 321, at para. 92:

·

Is the evidence admissible under the operative rules of evidence
    (the admissibility component)?

·

Is the evidence sufficiently cogent in that it could reasonably
    be expected to have affected the verdict (cogency criterion)?

·

What is the explanation offered for the failure to adduce the
    evidence at trial and should that explanation affect the admissibility of the
    evidence (the due diligence criterion)?

[57]

The
    due diligence criterion is not a precondition to admissibility. Instead, it
    is a factor to consider:
Truscott
, at para. 93. In the circumstances of
    this case, the Crown does not rely on the absence of due diligence in opposing Mr.
    Pleins proposed fresh evidence. The Crown urges, however, that the proposed
    fresh evidence fails on each of
Truscott
s two fixed prerequisites, the
    admissibility criterion and the cogency criterion.

[58]

The
    Crown raises two objections to the admissibility of Dr. Days expert opinion
    evidence. Its first objection is that Dr. Day does not have the expertise
    required to provide an expert opinion about Mr. Pleins capacity to meet the
    objective penal negligence standards that apply because Dr. Day is not a
    forensic psychologist familiar with the governing legal standards.

[59]

In
    my view, Dr. Day does not have to make that grade to qualify to offer expert opinion
    evidence relevant to Mr. Pleins capacity. As a clinical psychologist, Dr. Day
    clearly possesses special knowledge and experience going beyond that of the
    trier of fact in measuring cognitive abilities and emotional health, and
    interpreting psychometric data to offer an opinion about Mr. Pleins capabilities.
    This is enough to satisfy the expertise requirement.

[60]

The
    Crowns second admissibility objection is that Mr. Plein has not presented admissible
    evidence to provide a foundation for Dr. Days opinions. The Crown argues that those
    opinions should therefore not be given weight according to the principles
    affirmed in
R. v. Lavallee
, [1990] 1 S.C.R. 852, at pp. 889-90 and 894, and
    see
R. v. Scardino
(1991), 6 C.R. (4th) 146 (Ont. C.A.), at p. 153.

[61]

In
    this case, Dr. Days opinion is not based entirely on self-serving hearsay
    offered by Mr. Plein, as the Crown contends. Dr. Days opinion is materially grounded
    in psychometric testing conducted by a psychometrist. To be sure, this testing was
    dependent on Mr. Pleins participation, but it included performance testing
    with built in controls to minimize the risk of deception. While the weight to
    be given to performance test results is affected by their shortcomings,
    including the risk of distortion as the result of attempts by the subject to
    mislead, the test results themselves are not hearsay evidence.

[62]

In
    my view, while the proposed fresh evidence would be admissible at a trial on
    the issue of capacity, it is not admissible as fresh evidence on appeal because
    it lacks the cogency required. Mr. Plein has not satisfied me that Dr. Days
    evidence could realistically be expected to raise a reasonable doubt about
    whether Mr. Plein had the capacity to see the risks that his failure to provide
    the necessaries of life to his sister and mother would pose.

[63]

In
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 205, Watt
    J.A. explained how the cogency of fresh evidence is to be approached:

The cogency requirement asks three questions:

1)

Is the evidence relevant in that it bears upon a decisive or potentially
    decisive issue at trial?

2)

Is the evidence credible in that it is reasonably capable of belief?

3)

Is the evidence sufficiently probative that it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result?

[64]

I
    have no concerns on the first question. Dr. Days evidence is relevant in that
    it bears upon Mr. Pleins capacity, a decisive or potentially decisive issue at
    the trial.

[65]

Nor
    do I rely on the second question in finding Dr. Days evidence to lack
    sufficient cogency. Although the Crown contends that Dr. Days evidence about
    Mr. Pleins incapacity is incredible and therefore not reasonably capable of
    belief, I need not determine whether that is so. Even if honestly held, Dr.
    Days opinions about Mr. Pleins capacity are so bereft of probative value that
    they could not reasonably have affected the capacity finding.

[66]

First,
    Dr. Days opinions are significantly weakened by limitations in his expertise.
    He is well situated based on psychometric testing to describe Mr. Pleins
    general level of cognition relative to others. Based on his demonstrated
    credentials Dr. Day is not equipped, however, to relate his assessment of Mr.
    Pleins capacity to the standards that apply to the penal negligence based
    offences Mr. Plein was charged with, or to evaluate Mr. Pleins capacity based
    on his life-performance. This diminishes the utility of Dr. Days opinions.

[67]

More
    importantly, Dr. Days opinions about Mr. Pleins capacity rest materially on attitudinal
    or social factors, such as Mr. Pleins distrust of the medical profession, and his
    family culture of isolation and denial. I agree with the Crown that, in
    particular, Mr. Pleins claimed distrust in the medical system is belied by his
    own frequent use of it, but that is a secondary point. The key concern is that
    these attitudinal or social factors have nothing to do with Mr. Pleins
    intrinsic cognitive abilities or his emotional health, which are Dr. Days areas
    of expertise.

[68]

In
    my view, Dr. Days opinions about Mr. Pleins capacity to provide the
    necessaries of life are therefore a mélange of expert opinion of modest weight,
    and inadmissible personal speculation about the effects that Mr. Pleins attitudes
    and beliefs would be apt to have had on his behaviour.

[69]

While
    this seriously weakens the probative value of what Dr. Day has to say about Mr.
    Pleins capacity, the proposed fresh evidence opinions are completely undercut
    by evidence that demonstrates Mr. Pleins capacity to see and appreciate the
    risk posed by his failure to provide his sister and mother with the necessaries
    of life.

[70]

A
    significant body of evidence showed that, despite his intellectual challenges, Mr.
    Plein was capable of exercising judgment and functioning effectively. He drove
    a vehicle, worked as a mechanic, and managed a bowling alley. He refereed and
    coached sports, including baseball, hockey, and bowling. Until Cindys accident,
    he cared for his mother and sister, including by taking them to medical
    appointments and managing medication. He had the competence to make integral
    medical decisions, including when agreeing to the psychological testing done by
    Dr. Day.

[71]

Dr.
    Day revised his opinion when he was confronted with these things during
    cross-examination. He initially said that Mr. Plein was not capable of caring
    for others, but in the face of the above information he softened that position,
    accepting that Mr. Plein was capable of doing so. Dr. Day maintained, however, that
    Mr. Plein could not solve problems when faced with a crisis and that this
    rendered him incapable of identifying and responding to the risks his sister
    and mother would be in if he failed to provide the necessaries of life to them.

[72]

In
    my view, there is no realistic prospect that Dr. Days opinion about Mr.
    Pleins incapacity would resonate with a reasonable trier of fact. The
    photographic images of the condition of Cindy and Erika taken immediately after
    they died are indelible in their horror. There is absolutely no subtlety in the
    urgent need they were in. Given Mr. Pleins demonstrated capacities, it defies
    reasonable belief that he would not have seen that they were at risk of bodily
    harm if he did not intervene.

[73]

Indeed,
    the evidence showed that, while they were suffering, Mr. Plein lied to others
    about the gravity of their condition. After they died, he lied about them
    having received home care and claimed it had only been a few days since his
    mother had eaten. In other words, he minimized their condition and exaggerated
    what had been done for them. These lies support a compelling inference that Mr.
    Plein recognized that his response to their situation could be judged by others
    to be inadequate.

[74]

Finally,
    Dr. Days opinion is completely undercut by proof that when Mr. Plein himself
    needed medical care, he knew how to obtain it and did so, including managing
    his own hip replacement surgery.

[75]

The
    care that Mr. Pleins sister and mother needed was more basic, obvious, and more
    easily achieved than the care Mr. Plein secured for himself. All that was
    needed when his sister languished in her bed, and when his mother was withering
    away, was a simple 911 call, something Mr. Plein had done before when his
    mother fell, and did again, albeit far too late, when his sister and then his
    mother were dying.

[76]

In
    my view, the fresh evidence Mr. Plein offers does not, therefore, have
    sufficient cogency that it could reasonably be expected to raise a reasonable
    doubt about his capacity. The interests of justice are therefore not served by
    its admission and there is no basis upon which to order a new trial.

[77]

I
    would therefore dismiss Mr. Pleins conviction appeal.

C.

ThE Fresh Evidence Application and The Sentence

[78]

Mr.
    Plein was sentenced to a total custodial sentence, before credit for presentence
    custody, of 18 years. That sentence consisted of eight years in custody for
    criminal negligence in the death of Cindy Plein, and a consecutive 10 year custodial
    sentence for the manslaughter of Erika Plein.

[79]

Mr.
    Plein seeks leave to have the proposed fresh evidence of Dr. Day relating to
    his cognitive abilities admitted on the issue of sentencing. He argues that Dr.
    Days evidence about his cognitive limitations reduces his level of moral
    blameworthiness, requiring that his sentence to be set aside and replaced by a
    sentence that is fit in all of the circumstances.

[80]

In
    my view, the inadmissibility of the proposed fresh evidence on the capacity
    issue does not resolve its admissibility in the sentencing appeal. The issues
    are materially different. Evidence of incapacity demonstrates that an offender
    cannot meet the penal negligence standards imposed by the law. Evidence of cognitive
    impairment short of incapacity, however, may nonetheless assist in a sentencing
    proceeding by explaining why an offender failed to meet the standards of penal
    negligence that he was capable of meeting. In my view, when the contested
Truscott
criteria are applied to the proposed fresh evidence on the question of a fit
    sentence, the interests of justice require its admission.

[81]

I
    have already determined that Dr. Days evidence would meet the basic
    requirements for the admission of expert opinion evidence, had it been
    presented at trial.

[82]

In
    my view, the proposed fresh evidence would also reasonably be expected to
    affect the sentence imposed. I refer specifically to Dr. Days testimony about
    the administration and interpretation of Mr. Pleins psychometric tests, as
    well as Dr. Days testimony about how the test results situate Mr. Pleins
    cognitive abilities relative to others. Specifically, Dr. Days evidence shows
    Mr. Plein to have largely Borderline to Low Average cognitive abilities. His
    Full Scale IQ was 73, which is in the Borderline range (4
th
percentile). He showed particular difficulties in some aspects of memory, but
    his executive and other frontally mediated abilities are variable with signs of
    mental rigidity or inflexibility that may be having an impairing impact on
    functioning. Simply put, when compared to most others, Mr. Plein has cognitive
    challenges that make it more difficult for him to analyze the situation he is
    in, and to make optimal decisions.

[83]

This
    evidence bears on the fitness of Mr. Pleins sentence, a decisive issue in the
    trial. The fundamental principle of sentencing, codified in
Criminal Code
,
    s. 718.1, requires that a sentence be proportionate to the gravity of the
    offence and the degree of responsibility of the offender. Evidence of
    diminished intelligence can be important in identifying the moral fault and
    hence the degree of responsibility that should be ascribed to the offender for
    his acts:
R. v. Okemow
, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 73.

[84]

The
    trial judge certainly recognized how important such information would be. He
    said:

There is some indication in the material provided that there
    might be some cognitive issues with Mr. Plein. The difficulty with that is,
    there is no evidence of cognitive issues

I implored, if it was available, defence counsel to
    contextualize for me what was going on in Mr. Pleins head. There is simply no
    evidence of a cognitive issue.

[85]

Second,
    whatever credibility problems there were with Dr. Days opinions about Mr.
    Pleins incapacity, those concerns do not undercut the credibility of the
    psychometric measures Mr. Plein achieved when tested by a psychometrist. Nor do
    they call into question Dr. Days explanations of the significance of those
    scores in situating Mr. Pleins intelligence relative to the norm. This
    evidence relating to Mr. Pleins cognitive limitations was reasonably capable
    of belief.

[86]

Finally,
    Dr. Days evidence is sufficiently probative of Mr. Pleins level of moral
    fault that it could reasonably be taken with the other evidence adduced at
    trial to be expected to have affected the result in regard to sentencing.

[87]

As
    I have indicated, while Dr. Day lacks the expertise required to offer cogent
    opinions about Mr. Pleins capacity to meet penal negligence standards, he is
    well situated based on psychometric testing to describe Mr. Pleins general
    level of cognition, relative to others. Moreover, the evidence contradicting
    Mr. Pleins incapacity does not disprove that Mr. Plein suffered from cognitive
    impairment short of incapacity. Indeed, lay witnesses offered evidence
    supporting the conclusion that Mr. Plein is intellectually challenged.

[88]

I
    would therefore admit the proposed fresh evidence on the issue of the fitness
    of Mr. Pleins sentence. In my view, once admitted, that evidence shows that
    the sentence imposed by the trial judge was demonstrably unfit in all the
    circumstances:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 11.

[89]

The
    trial judge understood the importance of this evidence. He commented repeatedly
    in his reasons for sentence about the absence of evidence that Mr. Plein was
    cognitively impaired and implored defence counsel to provide such evidence,
    if available. It is evident that the trial judge looked for such evidence because
    Mr. Pleins failure to provide the necessaries of life to his sister and then
    his mother defied comprehension. The trial judge commented that absent
    evidence such as proof of a cognitive deficit, there is [] no anchor to
    discern why Kevin Plein did what he did.

[90]

The
    absence of information that could help the trial judge contextualize [] what
    was going on in Mr. Pleins head was crucial to the trial judges evaluation
    of moral blameworthiness and the sentence he imposed. Without evidence of a
    cognitive deficit or other mental infirmity, the trial judge was left to
    conclude that Mr. Pleins crimes were malevolent, attracting an exceptionally
    high level of moral blameworthiness in Erikas case, and a very high end of
    the moral culpability scale finding in Cindys case.

[91]

With
    respect to Mr. Pleins mother, Erika, the trial judge was left to conclude that
    Mr. Plein chose to watch her die because she was the last impediment to the
    rather unfortunate life hand he had been dealt. He found that Mr. Plein set
    about to effectively author the killing of his mother by failing to provide her
    with the nutrition she needed to survive.

[92]

The
    trial judge stopped short of making the same finding with respect to the death
    of Cindy, but did note that it appears that Mr. Plein had enough of caring for both
    his mother and sister. The trial judge found that Mr. Pleins failure to
    provide the necessaries of life to Cindy to be deliberate and calculated. While
    he did not use directly the Crowns characterization that Mr. Plein was
    self-absorbed and indifferent to the point of true depravity, the trial judge
    quoted these descriptors. And it is fair to say that the trial judge agreed
    with them. His sentencing decision is a wholesale endorsement of the Crowns
    position, and he expressed complete agreement with the Crown submissions in
    general.

[93]

In
    my view, the trial judges hard findings about Mr. Pleins level of moral fault
    cannot stand in the face of the fresh evidence. Indeed, given how important the
    trial judge considered evidence of cognitive impairment to be, it is probable
    that if the trial judge had the benefit of Dr. Days evidence, it would have
    tempered his assessment of Mr. Pleins moral fault.

[94]

On
    the current record, it cannot be assured that Mr. Plein authored the killing of
    his mother to unburden himself, and deliberately calculated the death of his
    sister. In light of Dr. Days evidence, Mr. Plein should not be sentenced as
    someone who was malevolent or depraved, but rather as someone who made grossly
    negligent and irresponsible decisions, and who failed to attend to the needs of
    his sister and mother with the same level of care he used when attending to his
    own direct interests. This itself describes a high level of moral fault for Mr.
    Plein, but it falls short of the extremes of moral fault the trial judge used
    in calculating Mr. Pleins sentence.

[95]

It
    is also my view that, on the current record, Mr. Plein should not be sentenced
    as a man whose moral deficit takes him beyond meaningful rehabilitation, or as
    someone who holds no insight into what he has done. His potential for his
    rehabilitation should be recognized and his expressions of remorse  that he
    misses his sister and mother and wishes he himself were dead  should not be
    entirely disregarded.

[96]

In
    light of the fresh evidence and consistent with the principle of totality, I
    consider a sentence of 14 years in custody to be a fit sentence  eight years
    for the manslaughter of Erika Plein, and six years consecutive for causing the
    death of Cindy Plein by criminal negligence. The presentence custody of 1,405
    days (937 actual days at 1.5:1) that the parties agree that Mr. Plein is
    entitled to must be deducted from this 14 year sentence.

DISPOSITION

[97]

As
    stated above, I would dismiss the conviction appeal.

[98]

However,
    I would grant leave to admit the fresh evidence, grant leave to appeal the
    sentence, set aside the sentences imposed by the trial judge, and substitute a
    global sentence net of 1,405 days presentence credit of 10 years and 2 months
    custody.
[1]

Released: September 14, 2018 (R.J.S.)

David M. Paciocco J.A.

I agree. Robert J. Sharpe
    J.A.

I agree. David Brown J.A.








[1]
14 years x 365 days per year = 5,110 days. 5,110 days  1,405 days of
    presentence custody = 3,705 days (
i.e.
, 10 years and 2 months).


