R. v. Peterson

R. v. Peterson Collection Decisions of the Court of Appeal Date 2005-10-20 Docket numbers C39132 Judges Weiler, Karen Merle Magnuson; Borins, Stephen; Armstrong, Robert Patrick Subject Criminal Decision Content DATE: 20051020 DOCKET: C39132 COURT OF APPEAL FOR ONTARIO WEILER, BORINS and ARMSTRONG JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent Terry Hawtin for the appellant - and - DENNIS PETERSON Appellant Tina Yuen for the respondent Heard: March 31, 2005 On appeal from the conviction entered on September 20, 2002, and the sentence imposed on November 15, 2002, by Justice Nicholson D. McRae of the Superior Court of Justice. WEILER J.A.: [1] This appeal requires us to consider when a parent is under the charge of a child thereby requiring the child to provide necessaries of life to that parent pursuant to s. 215 of the Criminal Code. The relevant portion of s. 215 states: (1) Every one is under a legal duty … (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. (2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him [1] , to perform that duty, if … (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. (3) Every one who commits an offence under subsection (2) is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. [2] Because several members of the affected family have the same last name, where it is not possible to use the last name to identify the person, the first name has been used. No disrespect is intended by this practice. [3] On September 20, 2002, Dennis Peterson was convicted of failing to provide the necessaries of life to his father, Arnold Peterson, thereby endangering Arnold’s life. Dennis was sentenced to six months imprisonment, two years probation, and one hundred hours community service on November 15, 2002. He appeals from his conviction, seeks leave to appeal his sentence, and, if leave is granted, appeals his sentence. [4] Dennis appeals his conviction on two bases. He submits that the reasons of the trial judge fail to satisfy the functional need to know the basis on which the conviction was entered and, accordingly, a new trial is necessary. Alternatively, Dennis submits that the evidence does not support a finding that Arnold was under his charge. Dennis also submits that the sentence was harsh and excessive in the circumstances. [5] For the reasons that follow I would dismiss the appeal from both conviction and sentence. Factual Background [6] For over forty years, Arnold, who was approximately eight-four years old in 2000, lived in his three-story house in Toronto. For a period of time, Arnold lived with his adult son, Dennis; daughter, Linda Peterson; grandson, Derek Joyce; and the grandson’s girlfriend, Laura Scriver. At that time the house was “open” in the sense that it was not divided into apartments. Linda moved out in January 1999. At the time of the events in question, the house was divided into apartments. Arnold occupied the first floor and the basement. Dennis lived on the second floor and occupied a living room on the first floor. Joyce lived on the third floor. An internal staircase linked the apartments. Dennis kept the doors to the upstairs apartments and to the main floor living room locked. [7] Arnold’s living quarters were in disrepair to the point that the kitchen did not function. It had no drywall and the floorboards were lifting. It was also filled with dead cockroaches. Dirty dishes were stacked on the counter and in the sink, and the cupboards were bare. Linda confirmed that this kitchen had not been used for a couple of years and she assumed that her father was eating upstairs with Dennis. However, Scriver, the former girlfriend of Arnold’s grandson, testified she never saw Arnold on the second floor and that it was always locked. Arnold would sometimes go to the convenience store to buy bread, chips, or cookies, which he ate on the porch. However, he had not been seen buying groceries since before his deterioration in 1999. A neighbour estimated that over the winter and spring of 2000 Arnold lost up to thirty pounds. [8] There was no bathroom on the main floor where Arnold’s apartment was located. There was a broken cistern toilet in the basement and a bathroom on the second floor. The broken dirt floor of the basement was covered in dog feces. The neighbours and Scriver did not see Arnold using the upstairs washroom. Arnold’s bedroom was messy and there were no sheets on the bed. [9] Arnold would rake leaves and do repair jobs for the neighbours, including Catherine Raven and Ana Michalsky, until the spring of 2000. Raven or Michalsky would give him meals when he came over. He could not dress himself appropriately and often wore winter clothes in the summer and vice versa. Because of his weight loss, his clothes did not fit. He would wear pants without a belt or zipper and would pin the waist to keep them from falling down. He did not wear underwear. He stopped shaving and began to smell. His clothes became dirty. [10] Raven found Arnold locked out of the house at least a dozen times in the eight months before the police first had contact with the family. He would wait on Raven’s porch and she would let him stay in her house until Dennis returned home, usually around midnight. Raven would not go to bed without checking to see if Arnold was locked out. [11] Raven and Scriver testified that the appellant would yell at Arnold, tease him about the Germans (Arnold had lost family in WWII), or ignore him and speak as if he was not there. [12] On April 30, 2000, Officer Houston responded to a call claiming that an old man “sat down rather heavily” in front of someone’s house. It is Arnold, who was exhausted. The police helped him to his feet and drove him home. Dennis was not home so Michalsky offered to let Arnold stay with her until Dennis came home. [13] One week later, P.C. Cutmore visited the house. Dennis said it was hard to look after Arnold because he would go for long walks and get lost. P.C. Cutmore explained about community agencies that could help. Dennis did not call these agencies. [14] On June 7, 2000, a man flagged Officer Houston down to help Arnold, who had collapsed on the street close to where he had been found on April 30. He found Arnold sitting on a planter, reclining back on an elbow, looking filthy and exhausted. He was weaker than he had been before and required assistance to stand and walk. He smelled very badly and it appeared he had not showered for some time. He was not answering questions promptly and, other than recognising his name, Officer Houston did not think that Arnold knew what was asked of him. He needed to be reminded where he lived although he recognized the house as his home. No one answered the door when P.C. Houston knocked and, because Arnold could not move on his own, P.C. Houston took Arnold to St. Joseph’s Hospital where he was admitted and given a place to lie down. P.C. Houston telephoned the address where Arnold lived and advised Dennis that his father was at the hospital. Arnold was released shortly thereafter. [15] On June 9, 2000, Officer Worth received a call from a gas company employee making meter checks who told him he had found a dead dog at the residence of a confused, elderly man. Officer Worth went to the address in question and found Arnold sitting on the front porch. Arnold was very dirty; his clothes were filthy and did not fit. His pants were too large and he had to hold them up with his hands. The fly was down or broken and he was wearing no underwear. The pants were dirty and wet in the crotch area. There was a very strong odour coming from him and it was obvious that he had not bathed in a number of days. He was quite thin, although he was a big man, and his cheeks were sunken in and unshaven. It was obvious to Officer Worth that Arnold had not eaten in a while. Arnold did not complain about Dennis or his grandson. He did say he was hungry. Officer Worth asked him when was the last time he had eaten and was told that it had been a few days and that his son gave him an apple the day before. [16] Officer Worth apprehended Arnold under the Mental Health Act, R.S.O. 1990, c. M.7. Officer Worth did not believe that Arnold was able to care for himself and apprehended him for his safety. He took him to St. Joseph’s Hospital where he was admitted. Linda signed the forms to transfer him from St. Joseph’s Hospital to a nursing home and he was admitted to Fairview Nursing Home on June 10. [17] Linda described her father as fiercely independent and contrary. He was very stubborn and would do the opposite of what Dennis told him to do. She stated that Arnold would not listen to anyone and that it was not uncommon for him to wear dirty clothes. When she and Dennis bought clothes for their father, it was very hard to get him to wear them. Linda testified that Dennis was concerned about their father and said that Dennis had always been good to him. Besides buying Arnold clothes, Dennis did his laundry, and cut his hair. He was never physically abusive towards his father. Arnold was adamant that he would not go into a nursing home. Linda left the family home in January 1999. She and Dennis did not discuss who would take care of Arnold as they all “helped out”. Arnold had a key that he wore around his neck but the last time Linda saw it was in June 1999. She had not been in the house for six months prior to June 7, 2000. [18] On February 28, 2000, Linda and Dennis asked a lawyer to draft two powers of attorney with the two of them acting as joint attorneys: one addressed financial affairs, the other, Arnold’s personal care. They thought that if anything happened to Arnold, someone should be able to take care of his financial affairs and “everything”. [19] After February 28, 2000, she and Dennis did not discuss their father’s welfare and who should take care of him. Dennis never called her to say that their father’s health was deteriorating. [20] Dr. Lam, a general practitioner who works at the nursing home, examined Arnold. He found him to be a little underweight for his height and build but not emaciated. Although he was pleasant and cooperative, Arnold seemed confused. He did not know where he was and was not able to tell Dr. Lam his home address when asked. Further testing to determine the extent of Arnold’s cognitive impairment led Dr. Lam to the conclusion that Arnold was in the early stages of Alzheimer’s dementia and that this dementia could have been going on for six months to two years. In Dr. Lam’s opinion, given how Arnold was acting in the fall and winter of 1999 and the spring of 2000, he was likely suffering from some dementia process. [21] On admission, Arnold was incontinent in terms of urine. Dr. Lam doubted that Arnold would bathe himself without being reminded to do so. He would also need direction and assistance. Further, he would probably need supervision in terms of dressing and would not know how to dress appropriately for the weather. Arnold was able to feed himself, but he needed supervision, guidance, and direction. At the nursing home, he had to be taken to the dining hall when the meal was served and have it placed in front of him. Dr. Lam stated that Arnold would probably forget to eat if he were not called down to the dining hall. [22] Dr. Lam opined that Arnold’s living situation was a totally unsafe environment for him. He was in danger of falling and the environment was very non-hygenic. The state of the rooms meant that Arnold probably could not take care of himself at all and that it was likely that Arnold was not even aware of the environment he was in. Arnold should have had supervision by a person who saw him at least once every half hour so that he could not wander off or fall and break a hip. The Trial Judge’s Reasons on Conviction [23] The trial judge correctly stated the three essential ingredients that the Crown had to prove beyond a reasonable doubt to show that Dennis was under lawful duty to provide the necessaries of life to his father. The duty arose only if “his father was (a) a person under his charge (b)…unable by reason of age, illness, mental disorder or other cause to withdraw himself from that charge, and (c)…unable to provide himself with the necessaries of life”. [24] After making his findings of fact, the trial judge concluded that Arnold was in his son’s charge. His conclusion forms the basis of this appeal and, to avoid repetition, will be discussed in greater detail below. [25] The trial judge also considered whether Arnold could withdraw himself from Dennis’s charge. He found that Arnold was incapable of withdrawing himself from his son’s care due to Alzheimer’s and dementia. He was too old, feeble, and senile to withdraw himself from the appellant’s charge. [26] Lastly, the trial judge concluded that Arnold was unable to provide himself with the necessaries of life. He stated that the test for supplying necessaries of life is objective and defined necessaries as those “things which are necessary to preserve life”. He concluded that from an objective viewpoint the failure of the accused clearly endangered Arnold’s life. The trial judge relied on Arnold’s inability to prepare food, the lack of food in his apartment, the lack of facilities in which to wash or go to the bathroom, and Dr. Lam’s evidence that Arnold’s living conditions were not safe. [27] The trial judge held that the Crown had met the onus of proving beyond a reasonable doubt the essential elements of the charge. He concluded, Put simply, this is a case of blatant neglect of an aged, vulnerable parent by the accused. The accused was fully aware that his father was in need of the necessaries of life. It was manifestly obvious to the neighbours, the police and the staff at the hospital…He had a legal duty to provide the necessaries of life to his father who was in his charge. He failed in that duty. The Issues [28] The appellant’s first submission is that the trial judge failed “to explain the basis upon which he arrived at his conclusion that Arnold was in the Appellant’s charge” and therefore the reasons fail to satisfy the basis upon which the conviction was entered in accordance with R. v. Sheppard, [2002] 1 S.C.R. 869. His second submission is that “the evidence does not support a finding beyond a reasonable doubt that Mr. Peterson was in the care of the appellant”. The appellant further submits that there is at least a reasonable doubt that Arnold was not in Dennis’s care having regard to the following factors: · Arnold was energetic, physically active, and walked the neighbourhood on a regular basis. · Arnold was fiercely independent, very stubborn, and would never look to anyone for help nor listen to his children. · Linda Peterson testified that she and Dennis did not consider invoking their power of attorney because their father was well and there was no reason to think he would need care. [29] I propose to deal with the appellant’s submissions together. Before discussing the trial judge’s reasons, I propose to discuss some general principles relating to the reasons and to comment respecting s. 215. Principles Affecting Reasons [30] The trial judge’s reasons must be read as a whole. The purpose of reasons varies with the context. At the trial level, reasons serve the purpose of justifying and explaining the result: Sheppard, supra, at para. 24. [31] When a judge convicts an accused, the trial judge’s reasons must enable the accused and the appellate court to understand the reasons for his conviction. As part of this understanding, where the case turns on the credibility of the witnesses, the trial judge must resolve important conflicts in the evidence between the witnesses: R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.) at para 20. An appeal based on the inadequacy of the trial judge’s reasons respecting credibility will not succeed, however, where the appellant merely shows that another trial judge could have reached a different result, that the trial judge failed to say something he or she could have said in assessing the respective credibility of witnesses, or that the trial judge did not expressly set out legal principles relevant to his or her assessment of credibility: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.) at paras. 57, 59. [32] Provided that the reasons are capable of being reviewed for error, brevity of reasons is not a freestanding ground of appeal: R. v. Dionne (2005), 193 C.C.C. (3d) 228 (Alta. C.A.) at para. 11. The Meaning of “Under His Charge” [33] This appears to be the first case to reach an appellate court in which the meaning of the phrase “under his charge” in s. 215(1)(c) as between an adult child and his or parent is in issue. That said, the section must be read and interpreted as a whole. [34] Section 215(1)(c) differs from section s. 215(1)(a), which imposes a duty on a “parent, foster parent, guardian or head of a family” to provide necessaries “for a child under the age of sixteen years”, and from s. 215(1)(b), which imposes a duty on spouses and common-law partners to provide necessaries of life to their spouses and partners. Section 215(1)(c) makes it clear that the duty to provide necessaries is not limited to these relationships but can arise in other circumstances. The duty arises when one person is under the other’s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. The phrase “necessaries of life” includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm: R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.) at 240. Thus, s. 215(1)(c) obligations are driven by the facts and the context of each case. [35] Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has been established and is aimed at establishing a uniform minimum level of care: R. v. Naglik, [1993] 3 S.C.R. 122 at paras. 37, 51 and 33 respectively. [36] The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did. For example, in Naglik at para. 36, a “crucial consideration” was that the evidence indicated the services of a public health nurse were made available to Naglik to help her in caring for her child, given her age, education, and lack of experience with children. She refused to accept any assistance. [37] The words “without lawful excuse” in s. 215(2) provide a defence and serve to prevent the punishment of the morally innocent. The obligation to provide necessaries is not absolute and may be excused, for example, where there is financial inability: Naglik, supra, and R. v. Yuman (1910), 17 C.C.C. 474 (Ont. C.A.). [38] On the other hand, I note that contributory negligence by the victim is not a defence for an accused charged with criminal negligence unless the injuries incurred are attributable solely to the victim: see Eugene G. Ewaschuk, Criminal Pleadings and Practice in Canada 2d ed. looseleaf (Aurora: Canada Law Book, 1987) at para 28:180, citing R. v. Lesuk, [2000] 7 W.W.R. 462 (Man. C.A.) at para. 31 and other appellate decisions from Alberta, Saskatchewan, Nova Scotia, and Prince Edward Island. [39] Section 215(2)(b) indicates that the failure to provide necessaries includes not only a failure to do a discrete act but also includes a failure to act in an ongoing relationship over a period of time: see Naglik, supra, at para. 36 in relation to section 215(2)(a)(ii), which is similar in wording to s. 215(2)(b). [40] In addition to the foregoing, I would make the following observations. First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child but also by their relationship to one another in which an element of trust will usually be present. The history of the section supports the interpretation that the section was intended to require certain minimal standards in relation to dependants such as wives and children and was later broadened: see R. v. Middleton, [1997] O.J. No. 2758, at paras. 10-14. The mere breach of a federal or provincial statute, such as s. 32 of the Family Law Act, which imposes a duty on a child to support a parent, does not constitute a crime. It is nevertheless proper for the trier of fact to consider legislation governing the accused in order to determine whether the accused’s actions or inactions show a “marked departure” from the conduct expected: see by analogy R. v. Leblanc, [1977] 1 S.C.R. 339, R. v. Bergeron (1999), 132 C.C.C. (3d) 45 (Que. C.A.). [41] Second, the word “charge” is not unknown to the criminal law in other contexts involving adults. In the impaired driving context, the court characterized having “care, charge or control” of a vehicle as requiring “a kind of domination as in the master-servant relationship and as in the parent-child or teacher-beginner relationship”: R. v. Slessor, [1970] 1 O.R. 664 at 674. The court did not restrict the meaning of charge too far, however, stating, “‘Charge’, too, is a word of broad comprehension. One speaks of a person who is fixed with responsibility of supervision as one who is in ‘charge’”. The Ontario Environmental Appeal Board also considered the meaning of the word charge in Re Karge (1996), 21 C.E.L.R. (N.S.) 5 at para. 68-69. It referred to the dictionary meanings of the word and concluded essentially that it means to have the responsibility to take care of someone, something, or somewhere. [42] Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a person or thing. Similarly, one of the definitions of charge in Black’s Law Dictionary, 8th ed. (St. Paul, Minneapolis: West Publishing, 2004) is “to entrust with responsibilities or duties e.g. to charge the guardian with the ward’s care”. What the definitions have in common is the exercise of an element of control by one person and a dependency on the part of the other. [43] In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury. Just as some contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to appreciate his or her need for necessaries and the victim’s unwillingness to cooperate is not a defence for an accused charged with failure to provide necessaries. If the parent is otherwise in the child’s charge and the child cannot care for the parent due to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency. See Regina v. Stone & Dobinsons, [1977] Q.B. 354 at 361. [44] A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility. [45] The non-exhaustive criteria below illuminate the trial judge’s findings and the path he took to his conclusion that Arnold was in the charge of the appellant: 1. Arnold was dependent: The trial judge found that in his state of dementia, Arnold was unable to provide himself with the necessaries of life. As he never cooked, had no food in the apartment, and sometimes went days without food, he was dependent on someone else to provide him with food. The trial judge also accepted Dr. Lam’s evidence that Arnold needed assistance in choosing appropriate clothing to wear as well as assistance with his personal grooming. 2. The appellant had a familial relationship with Arnold and was aware of his father’s dependency. The trial judge found that Dennis was fully aware that his father was in need of the necessaries of life. It was manifestly obvious, particularly because Arnold lost up to thirty pounds during the winter and spring of 2000. 3. The appellant controlled Arnold’s living conditions and kept him in an unsafe environment. The trial judge found that the appellant had free access to Arnold’s rooms but kept all of the rooms he occupied locked when he was not there. The logical inference is that Dennis prevented Arnold from having access to the only working kitchen, bathing facilities, and properly working toilet in the house. The trial judge also found that the toilet in the basement had no seat, was filthy, worked poorly; and the environment in which it was located was unsafe because the stairs to the basement were poorly lit and had no handrail until near the bottom. The trial judge further found that the kitchen was unsafe even for a fit person. 4. The appellant had control over Arnold’s personal care. The appellant took steps to obtain the power to make decisions respecting Arnold’s personal care and had the ability to make decisions about his personal care. Put another way, at the request of Dennis and his sister, Arnold entrusted them with the ability to make decisions respecting his personal care. Quite apart from the power of attorney, when Dennis came home and Arnold was locked out, as frequently happened, the appellant took Arnold into his charge from the neighbours. Thus, both legally and publicly Dennis assumed responsibility for Arnold. 5. The appellant chose not to make decisions that would result in Arnold receiving the necessaries of life. Dennis was made aware of community services that could assist him with the care of his father. He took no steps pursuant to Const. Cutmore’s suggestions. (One suggestion, as revealed in the evidence, was to contact a church across the street that operated an extensive Meals-on-Wheels program.) 6. Arnold was incapable of withdrawing himself from the appellant’s “charge” due to age and illness. He was too old, feeble, and senile to withdraw himself from the appellant’s charge. [46] When the trial judge’s reasons are considered in this manner, they disclose why the trial judge found that Arnold was under the appellant’s charge as well as why Arnold was unable to withdraw from his son’s charge. Thus, the reasons disclose why the trial judge convicted Arnold and satisfy the requirements of Sheppard, supra. [47] With respect to the third element of the offence, namely, the failure to provide Arnold with the necessaries of life, the appellant relied on Linda’s evidence as contradicting the evidence that Dennis failed to provide Arnold with the necessaries of life and was under his charge. The appellant submits that the trial judge was required to resolve the conflict in the evidence. However, as Linda had not entered the house for at least six months prior to Arnold being apprehended, she was not in a position to testify about whether Dennis failed to provide Arnold with the necessaries of life. Her evidence did not raise a conflict that necessitated resolution by the trial judge. Thus the trial judge correctly found that the evidence was not really in dispute. [48] Insofar as the legal test for determining when a person is under the charge of another is concerned, the evidence that Arnold did not wish to bathe or change his clothes does not negate the appellant’s having charge of him. The evidence simply supports the conclusion that Arnold had a mental disability that prevented him from exercising sound judgment to provide himself with the necessaries of life. This disability cannot be used by Dennis as a defence for failing to provide Arnold with the necessaries of life. Dennis could have called a community agency for help and did not. Further, there was no evidence that Arnold ever refused food yet, Dennis did not provide him with food regularly. [49] The trial judge’s reasons are sufficient to permit his decision to be reviewed and do not disclose any error in law. Accordingly, I would dismiss the conviction appeal. The Trial Judge’s Reasons on Sentence [50] With respect to sentence the trial judge held: The defendant, over a period of years, showed a heartless indifference to his father to the point where it amounted to cruelty. His father was aged, infirm, and on a downward cycle, getting worse. The defendant was totally unaffected by the stress that anybody could see his father was suffering. The only people who showed any concern were neighbours. They attempted to help in small ways. If it was visible to them, it had to be visible to him. [51] He sentenced Dennis to a period of incarceration of six months plus probation for two years, ordered him to do one hundred hours of community service work, and imposed other terms and conditions. [52] The offence of failure to provide the necessaries of life is a hybrid offence punishable by a maximum penalty of imprisonment for a term not exceeding two years where the Crown elects to proceed by indictment. [53] The trial judge found as an aggravating factor that the appellant was in a position of trust. The appellant submits that the underlying basis of the offence with which the appellant was charged is a breach of trust and that, as a result, the appellant’s breach of trust cannot be an aggravating factor. Although the appellant offers no authority for this submission, he submits that the trial judge erred in principle. Having regard to Dennis’ good conduct while on bail for the last two and one half years and to the trial judge’s finding he was unlikely to reoffend, the appellant submits that trial judge ought to have imposed a conditional sentence. Assuming, without deciding, that the trial judge erred in principle, the issue is nevertheless whether the sentence was fit and appropriate. [54] In R. v. Proulx, [2000] 1 S.C.R. 61, Lamer C.J.C. rejected any presumption that a particular category of offence is excluded from the conditional sentencing regime. He explained his conclusion at paras. 79‑81 on the basis that sentencing is an individualized process that requires a sentence to be “proportional to the gravity of the offence and the degree of responsibility of the offender.” [55] The abuse in this case took place in a domestic setting, a setting in which the lack of food and dangerously unhygienic conditions that Arnold lived in were unlikely to be seen. The difficulty of detection of such crime and the importance of discouraging such crime are considerations that increase the gravity of the offence. By analogy, s. 718.2(a)(ii) makes the abuse of a spouse, common law partner, or child an aggravating circumstance in sentencing. The section does not except the failure to provide necessaries of life under s. 215 from its ambit. [56] There is another consideration in this case that relates to the gravity of the offence and the degree of moral responsibility of the offender. As a general rule, the greater the period of time over which an offence has occurred the greater the moral blame assigned to the offender. The offence in this case took place over a substantial period of time. The trial judge found that Dennis had to have known the physical distress that Arnold was in because it was obvious to everyone yet he continued to show “heartless indifference” to the point of cruelty towards his father. [57] In addition, the importance of general deterrence and denunciation is highlighted in this case by the indifference of the appellant to the criminal nature of his offence. The sentence must bring home to other like-minded persons that abuse of elderly helpless parents in their care will not be tolerated. The imposition of a term of imprisonment has a denunciatory component in that it not only condemns the particular offender’s conduct, but, communicates and reinforces a shared set of values. It reinforces the point that the conduct in this case was criminal and not an accident or a mere error in judgment. While a conditional sentence can convey deterrence and denunciation, the need to ensure that this offence carries the required stigma would not be met by a conditional sentence in this case. [58] The trial judge’s rejection of a conditional sentence in this case was in proportion to the gravity of the offence and the degree of responsibility of the offender. In saying this, I do not mean that a conditional sentence may not be appropriate in some cases. When a trial judge decides to impose or not impose a conditional sentence, the judge engages in a discretionary exercise that is entitled to considerable deference. In Proulx at paras. 124‑126, Lamer C.J.C. emphasized that in enacting the conditional sentencing provisions, Parliament intended to confer a wide discretion upon sentencing judges. After noting the objectives of sentencing in s. 718 he observed: Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference….Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit. [59] Sentences for this type of offence generally appear to fall between four and eight months incarceration with a period of probation following: see e.g. R. v. J.R.B., [2003] N.J. No. 9 (six months incarceration, two years probation); R. v. T.L., [2000] O.J. No. 5750, (eight months incarceration); R. v. R.(S.) (1993), 20 W.C.B. (2d) 42, (eight months incarceration); R. v. Mertz (1988), 4 W.C.B. (2d) 262, (four months incarceration, three years probation). The sentence of six months imprisonment imposed by the trial judge was within the range of sentences for this type of offence and was not demonstrably unfit. [60] Even assuming an error in principle, the sentence was not outside the range of sentences appropriate for this type of offence and was fit. [61] Accordingly, while I would grant leave to appeal the sentence, I would dismiss the appeal with respect to sentence. RELEASED: October 20, 2005 (KMW”) “Karen M. Weiler J.A.” “I agree Robert P. Armstrong J.A.” BORINS J.A. (Dissenting in part): I [62] I have had the opportunity to read the reasons for judgment of my colleague Weiler, J.A. Although I agree with her proposed disposition of the conviction appeal, I am not in agreement with her disposition of the sentence appeal. I would grant leave to appeal sentence, allow the appeal and substitute a conditional sentence. II [63] Before discussing the sentence appeal, I propose to comment on the offence of which the appellant was convicted, which is found in s. 215 of the Criminal Code. Section 215(1)‑(3) reads as follows: 215. (1) Every one is under a legal duty (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (b) to provide necessaries of life to their spouse or common-law partner; and (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. (2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if (a) with respect to a duty imposed by paragraph (1)(a) or (b), (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. (3) Every one who commits an offence under subsection (2) is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. [Emphasis added.] [64] Section 215(1)(a) creates a legal duty in a parent, foster parent, guardian or head of a family to provide the necessaries of life for a child under the age of sixteen years. Section 215(1)(b) creates a legal duty to provide the necessaries of life to a spouse or common‑law partner. Section 215(2)(a) creates an offence for those who fail to perform the legal duties in s. 215(1)(a)-(b). However, no legal duty or complementary offence is expressly created by s. 215(1)-(2) when a child fails to provide the necessaries of life for a parent. Rather, as this case illustrates, a legal duty on the part of a child to provide the necessaries of life to his or her parent arises only if it can be established that the parent is “under [the] charge” of his or her child in the circumstances stipulated in s. 215(1)(c). The Criminal Code does not define “charge” and provides little guidance as to the circumstances in which one person is under the charge of another person. [65] The legislative history of s. 215 discloses a likely origin in English 19th‑century legislation dealing with the protection of servants, apprentices and inmates of penal and other institutions. Section 215 first appeared in Canada as s. 209 of the Criminal Code, 1892, which itself descended from the English Imperial Criminal Consolidation Acts 1861, 24 & 25 Vict., c.100, ss. 26‑27. Although there are differences between s. 209 and the present s. 215, the focus of s. 209 is the supply of the necessaries of life by “one who has charge of any other person” within the circumstances contained in s. 209. Section 210 of the 1892 Code created a legal duty to provide necessaries of life for children and wives. These provisions remained relatively unchanged until the Criminal Code, 1953‑54, when they were combined and re‑enacted as s. 186. But for minor changes in the intervening fifty years, the wording of s. 215 is basically the same as that of s. 186. Although the language regarding criminal responsibility and criminal neglect has changed somewhat since 1892, the core of the legislation remains the same: where a person is in the charge of another, and unable to withdraw himself from that charge and unable to provide himself with the necessaries of life, the person having charge has a duty to provide such necessaries of life. Thus, as Weiler J.A. demonstrates in her reasons, the focus of the analysis where a child is accused of failing to provide the necessaries of life for a parent is almost always the same. It is whether a parent is under the charge of his or her child. The duty or responsibility of a child to be the caregiver of his or her aging parent and the criminalization of the failure to provide the required standard of care are based on late 19th‑century legislation that is completely unsuitable in the 21st‑century. The problem arising from the failure of the legislation to provide any guidance in respect to where one is in the charge of another is apparent from the analysis undertaken by Weiler J.A. to breathe life into “charge” within the meaning of s. 215(1)(c). [66] In my view, contemporary legislation is required to deal with the issue of parent/child role reversal, which is one of the results of human longevity. An estimated 22.4 million households in the United States – nearly one in four – are providing care to a relative or friend aged fifty or older according to a 1997 survey by the National Alliance for Caregiving and the American Association of Retired Persons. It is likely that adults born between 1946 and 1965 will spend more years caring for a parent than for their children. As Susan Dominus pointed out in an article in The New York Times Magazine: “The philosophical impact [of human longevity] on family dynamics will be profound, as parents continue to lean on children long past retirement themselves, and people in their 80’s learn what it means, at that age, to still be somebody’s child.” (“Life in The Age of Old, Old Age”, The New York Times Magazine, February 22, 2004.) [67] In an article, “Longer Lives Reveal the Ties That Bind Us” (The New York Times, October 2, 2005), David Brooks points out that between now and 2050, the percentage of the population above age eighty-five is expected to quadruple. Brooks quotes Dr. Leon Kass, the former Chairman of the President’s Council on Bioethics, as stating: “The defining characteristic of our time seems to be that we are both younger longer and older longer.” To which Brooks adds: Parents have to spend more time preparing their children for the new economy and children have to spend a lot more time caring for their parents when they are old. In other words, technology, which was supposed to be liberating, actually creates more dependence. We spend more of our lives while young and old dependent upon others, and we spend more time in between caring for those who depend on us. [68] Although these data and comments apply to the United States, there is little doubt that they also apply to Canada. This is why it is no longer satisfactory to rely on legislation designed for another purpose in another era to define what contemporary society requires of its members who have aging parents in need of care. Children of aging parents no doubt accept that their parents require some form of care, be it in respect to financial affairs or personal care. As the elderly lose their ability to remain self‑sufficient, their adult children are gradually required to assume caregiving responsibilities. As a result of rising life expectancy, the child who becomes his or her parent’s caregiver, is often well within the “senior citizen” age category. In addition, given that the age at which children are conceived is rising, the expectation is that there will be a sizeable group of children who will face a double “necessaries” duty in respect to both their children and their parents, raising, perhaps, the need to chose between the welfare of their children and their parents. It is, therefore, of critical importance that if the duty to care for an aging population continues to be within the ambit of the criminal law, that care is taken to clearly define what constitutes criminal neglect or penal negligence. [69] Unlike its role in shaping the duty to provide care for very young children, which is easily defined and recognized, and which is governed by s. 215(1)(a) of the Criminal Code, the challenge for government is to address the issue of the child caregiver of an aging parent in a way that clearly defines the circumstances in which criminal liability will be imposed. Determining the level of responsibility that an adult child should bear for an elder parent together with defining the appropriate standard of care are difficult and challenging issues. Indeed, one may ask whether they should continue to be governed by criminal law. Useful contemporary legislative models may be found in several states in the United States that have enacted specific laws related to elder abuse and elder care, entrenching a defined duty of care. I refer, in particular, to legislation in California, Massachusetts and Illinois. The Massachusetts legislation is especially instructive in its comprehensive definition of “caretaker” in defining appropriate boundaries for criminal liablity. III [70] In brief reasons for sentence, the trial judge sentenced the appellant to a term of imprisonment of six months, followed by probation for two years and a hundred hours of community service. Although the appellant was a first offender who was forty‑one years of age when the offence was committed and, in the opinion of the trial judge, was not likely to reoffend, his request for a conditional sentence was rejected. In the view of the trial judge, who erroneously said that the offence had taken place “over a period of years”, general deterrence meant that the appellant “cannot escape a jail sentence”. He stated: In an attempt to be fair to [the appellant], as well as considering the age of the father, s. 718(2)[(a)(iii)] provides that he abused a position of trust, and that is an aggravating factor. He has lost one job over this, and he will probably lose another now. But I can see no other solution than to sentence him to a term of imprisonment for six months. The trial judge concluded that he had “to send a message that this conduct will simply not be tolerated”. [71] The trial judge failed to explain why he believed that he was required to exercise his discretion by imposing a prison sentence to achieve the objective of general deterrence. In addition, in respect to this first offender, he failed to consider whether less restrictive sanctions, including all available sanctions other than imprisonment, would be appropriate in the circumstances, as required by s. 718.2(d) and (e) of the Criminal Code: R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.). As the Supreme Court of Canada has stated in R. v. Proulx, [2000] 1 S.C.R. 61, a conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed. As well, the Supreme Court stated that while aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. In emphasizing that the offence was committed “over a period of years”, which it seems the trial judge considered an aggravating factor, the trial judge appears to have overlooked that the appellant was charged with the commission of the offence over a period of slightly more than five months. [72] I am mindful of the significant degree of deference to be accorded to the sentence imposed by a trial judge. I recognize that a variation in the sentence should only be made by an appellate court if it is not fit in the sense that the sentence is clearly unreasonable. A sentence will be found to be unreasonable if it falls outside the acceptable range of sentences for similar offences. As well, an appellate court may interfere if the sentencing judge erred in principle or if the sentence was clearly excessive or inadequate in all of the circumstances. [73] In my view, the trial judge erred in principle in failing to consider other sentencing alternatives to achieve the objective of general deterrence and in overemphasizing the aggravating factor of the abuse of a position of trust in s. 718.2(a)(iii) of the Criminal Code, given that the essential element of the offence of which the appellant was convicted is the breach of a trust. In addition, the trial judge erred in fact in sentencing the appellant for an offence that he said was committed “over a period of years”, whereas the indictment was in respect to just over five months. In my view, the sentence was manifestly unfit. [74] Without minimizing the seriousness of how the appellant treated his father, in my view, the sentencing objective of general deterrence could have been achieved by the imposition of a conditional sentence. As the trial judge recognized, the appellant does not constitute a danger to the community and would not reoffend. This is not surprising as his father had died before the sentencing from causes unrelated to the appellant’s neglect. The appellant did not physically abuse his father in any way. In addition, the trial judge did not refer to the mitigating factors that the appellant’s father was fiercely independent, contrary and stubborn, was adamant that he would not enter a nursing home, and would sometimes reject assistance from the appellant. The difficult nature of the appellant’s father was also noted by the author of the pre‑sentence report, who also made reference to the appellant’s struggle to overcome learning problems caused by his “somewhat diminished mental capacity”, which touches on the appellant’s capacity to care for his father. She was of the opinion that the appellant does not represent a danger to society and believed that he would be a good candidate for community supervision. [75] In considering whether the trial judge imposed a fit sentence, it would appear that this is a case of first instance. Research has not found any reported case in Canada in which a child has been sentenced for failing to provide the necessaries of life to a parent. Consequently, there is no guidance with respect to the range of sentences imposed in cases of this nature. With respect, the authorities relied on by Weiler J.A. in upholding the prison sentence imposed by the trial judge are of no assistance in determining the fitness of the appellant’s sentence. Each of these cases involved serious physical injury to an infant child caused by its parent and exacerbated by the parent’s failure to provide prompt medical attention. As such, these cases apply to a different offence and involved parents in circumstances where there was a risk of reoffending. However, they are instructive as illustrating circumstances where the imposition of a prison sentence is necessary as a deterrent and to denounce the physical abuse of young children accompanied by the failure to provide medical attention. In other words, these cases suggest that the sentence imposed by the trial judge might have been fit had the appellant physically abused his father, caused him life‑threatening injuries and withheld timely access to medical care. However, they do not support imposing a prison sentence in the circumstances of this case. [76] In my view, as this is the first time an appellate court has considered the fitness of a sentence imposed on a child who has failed to provide the necessaries of life for his elderly parent, to uphold the trial judge’s sentence of six months imprisonment would set the benchmark for sentencing children who fail to provide their parents with necessaries of life in circumstances similar to those in this case. To affirm the sentence imposed in this case as a fit sentence would mean, in all future cases, that a jail sentence would be difficult to avoid given a similar failure by a child to care for an elderly parent. Indeed, the prospect of caregivers being imprisoned may have the effect of discouraging older children from becoming the caregivers of aging parents. In my opinion, for a child advanced in years to be found guilty of criminal neglect of an aging parent, particularly in the absence of any physical abuse or failure to provide medical care, is punishment enough. I view the sentence imposed in this case as unduly harsh and one that fails to meet the proportionality requirement of s. 781.1. Given the circumstances of the offence and the offender, it is my opinion that a jail sentence of six months, followed by two years probation and the performance of a hundred hours of community service is excessive and, therefore, unfit. The objective of deterrence can be achieved by a conditional sentence containing appropriate terms. IV [77] Although I would not interfere with the appeal from conviction, I would grant leave to appeal sentence and allow the appeal. I would set aside the sentence imposed by the trial judge and substitute a conditional sentence of six months on the conditions contained in s. 742.3(1) of the Criminal Code. Should counsel wish additional conditions to be added, they may agree on the conditions and advise the court, or arrange to make further submissions. “S. Borins J.A.” [1] At trial, it was accepted by counsel that the reverse onus is unconstitutional and that the onus is on the Crown to prove the essential elements of the charge beyond a reasonable doubt.