R. v. Canhoto

R. v. Canhoto Collection Decisions of the Court of Appeal Date 1999-12-08 Docket numbers C24949 Judges Labrosse, Jean-Marc; Doherty, David H.; Abella, Rosalie Silberman Subject Criminal Decision Content DATE: 19991208 DOCKET: C24949 COURT OF APPEAL FOR ONTARIO LABROSSE, DOHERTY and ABELLA JJ.A. BETWEEN: ) ) David E. Harris HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Jamie C. Klukach ) for the respondent MARIA CANHOTO ) ) Appellant ) ) Heard: November 8, 1999 ) On appeal from the conviction imposed by Mr. Justice Roger E. Salhany on January 26, 1996 DOHERTY J.A.: I [1] The appellant was convicted of manslaughter on the basis that her criminally negligent conduct contributed to the death of her two year-old daughter. She was sentenced to one year in jail. The appellant appeals conviction only. Her sentence has been served. II [2] This is a tragic and bizarre case. The deceased, Kira, was the two year-old daughter of the appellant. She died of asphyxiation caused by airway obstruction and compression of the neck complicated by aspiration, which occurred during an exorcism performed by her grandmother. [3] Kira’s grandmother, the appellant’s mother, believed that she could communicate directly with angels and spirits and could detect evil spirits dwelling inside other people. She also believed that she could expel those evil spirits by a combination of prayer and the forced ingestion of water until the person vomited and expelled the evil spirits. The grandmother came to believe that the appellant’s boyfriend was possessed by evil spirits and that those spirits had been transmitted to Kira. [4] On the day Kira died, the appellant, Kira and her grandmother were at the home of the Aguiars. The Aguiars were friends of the grandmother and shared her beliefs. During the evening, the grandmother decided to expel the evil spirits from Kira. She took her into the kitchen and began to pray and force water down Kira’s throat. Kira resisted, kicking strenuously and screaming. Daniel Aguiar held Kira’s legs. Eventually, Kira fell silent. She was placed on the kitchen floor where she died. Her body remained in the home for two days until the appellant and the grandmother took the body to the hospital.1 [5] The post-mortem examination of Kira revealed numerous injuries to her face and neck, abrasions on her chin and neck, and bruising to some of her internal organs. The injuries were consistent with the use of substantial force during efforts to force Kira to drink enough water so that she would vomit. Her inability to breathe, combined with aspiration of the water, caused Kira’s death. [6] It was the Crown’s case that the appellant was present during part of the attempt to expel the evil spirits and that she was in the immediately adjacent room the rest of the time. The Crown contended that the appellant knew what the grandmother was doing and could hear her daughter screaming and resisting her grandmother’s efforts to force water down her throat. [7] The Crown contended that the appellant was guilty of criminal negligence either because her involvement in the efforts to expel the evil spirits demonstrated a wanton and reckless disregard for Kira’s life or safety, or because, as Kira’s mother, she had failed to intercede when it became apparent to her that Kira was in danger. The Crown argued that the appellant was under a legal obligation to come to her daughter’s aid and that her failure to do so demonstrated a wanton and reckless disregard for the life or safety of Kira. [8] The appellant did not testify and did not call a defence. It was the position of the defence that the evidence did not establish that the appellant was in the kitchen during the attempted exorcism. It was further the position of the defence that the appellant did not know of the risk posed to her daughter by the grandmother’s actions. The defence contended that the grandmother had performed a similar procedure a day earlier and that no harm had come to the child. There was evidence that Kira was generally well cared for by the appellant. It was not part of the defence at trial that the appellant was incapable of appreciating the risk posed to Kira. Nor was the appellant’s mental state put in issue at trial. III [9] The trial judge, in careful reasons, made the following finding of fact: On the evidence, I am satisfied beyond a reasonable doubt that both Maria [the appellant] and Daniel were present during some of the force feeding of Kira by Anna Maria [the grandmother], provided her with water and held Kira’s feet to restrain her from kicking to avoid being force fed. [10] The trial judge had “no hesitation” in finding that the appellant knew or ought to have known that what the grandmother was doing to Kira was capable of putting Kira’s life or safety at risk. The trial judge then said: … I am convinced that she was capable of distinguishing between the child’s crying caused by discomfort and the child’s crying and struggling and kicking while attempting to fight for her life. However, what is clear to me on the evidence is that Maria was so convinced that her child was possessed by evil spirits, of her mother’s ability to rid the child’s body of those spirits by forced feeding and of the critical importance of doing so that her concern for Kira’s health or safety was secondary. Her video statement to the police contains numerous references to her belief that evil spirits will invade the body, to the belief that her mother has the ability to exorcise those evil spirits and her belief in the necessity of doing so. Mr. Marentette [defence counsel] relied upon those passages as indicative of her honest belief that her mother would not hurt Kira. What they indicate to me is that she was so caught up in her religious beliefs, in the existence of evil spirits and the necessity that they be exorcised, that, as I have already said, they were secondary to Kira’s physical well being. This is not a case where she was incapable of appreciating the risks because of her youth, experience or education. It was because of her religious beliefs. I see no difference between this case and one where a parent deliberately withholds insulin from a diabetic child because of the belief, no matter how honestly held, that the child has been cured by prayer. [Emphasis added.] [11] Two of the arguments advanced by the appellant arise out of the trial judge’s findings of fact. She submits that the evidence of her participation in the forced feeding of Kira depends on the evidence of Steven Aguiar, the 14 year-old son of the Aguiars. The appellant contends that Steven’s evidence was so thoroughly unreliable that the trial judge erred in relying on his evidence. There are two answers to this submission. First, Steven Aguiar’s evidence was not the only evidence of the appellant’s participation in the events in the kitchen. Her videotaped statement to the police could reasonably be interpreted as an admission by her of some participation in the events which occurred in the kitchen. Second, while there can be no doubt that Steven Aguiar was an unreliable witness, the trial judge was not foreclosed from accepting his evidence. He was aware of the frailties in Aguiar’s evidence and ultimately chose to accept part of it. He was well within his province in doing so. [12] The appellant also argues that the trial judge improperly drew an inference that the appellant knew that Kira was in real distress based on the trial judge’s conclusion that, as Kira’s mother, the appellant could distinguish between crying which suggested discomfort and crying which suggested a much more serious problem. There was ample evidence that the appellant could hear Kira screaming for some time. I see nothing wrong with the common sense inference that, as Kira’s mother, the appellant could tell the extent of Kira’s distress based on those screams. IV [13] The appellant’s third ground of appeal accepts and indeed relies on a finding of fact made by the trial judge. The trial judge said: This is not a case where she was incapable of appreciating the risks because of her youth, experience or education. It was because of her religious beliefs. [14] The appellant submits that the trial judge found that the appellant was incapable of appreciating the risk because of her religious beliefs and that because of that incapacity she should have been acquitted. [15] An incapacity to appreciate the risk flowing from one’s conduct does negative the fault element required for crimes of negligence: R. v. Creighton (1993), 83 C.C.C. (3d) 346 at 387 (S.C.C.). The passage relied on by the appellant, if read in isolation, lends some credence to the submission. It must, however, be read in the context of the rest of the reasons and the issues raised at trial. It was never contended at trial that the appellant was incapable of appreciating the risk to her child because of her religious beliefs. It was the position of the defence that the appellant was unaware of the harm being done to her child. [16] Viewed in their entirety, the reasons demonstrate that the trial judge did not find that the appellant was incapable of appreciating the risks. To the contrary, he said: I have no hesitation in concluding that Maria [the appellant] knew or ought to have known that what her mother was doing to Kira was capable of putting her child’s life or safety at risk. [17] The trial judge also dealt directly with the role played by the appellant’s religious beliefs: … However, what is clear to me on the evidence is that Maria [the appellant] was so convinced that her child was possessed by evil spirits, of her mother’s ability to rid the child’s body of those spirits by force feeding and of the critical importance of doing so that her concern for Kira’s health or safety was secondary. [18] Read in their entirety, the reasons negate any suggestion that the trial judge found that the appellant was incapable of appreciating the risk to Kira on account of her religious beliefs. As Crown counsel put it in her factum, the trial judge saw this “not as a case of incapacity but as a case of subjugating awareness of risk to religious beliefs.” V [19] The appellant’s fourth submission is a legal one. Mr. Harris, for the appellant, seeks to distinguish between crimes of criminal negligence arising out of acts and crimes of criminal negligence based on a failure to act where there is a duty to do so. Mr. Harris submits that the fault component of crimes of criminal negligence must vary depending on whether liability arises out of conduct or an omission. [20] In R. v. Creighton, supra, at 387-91, McLachlin J., for the five-person majority, held that criminal culpability for crimes of negligence was to be measured by reference to a uniform objective standard. Fault was determined by asking whether the conduct constituted a marked departure from that expected of a reasonable person in the circumstances. Personal frailties and shortcomings of the accused were irrelevant unless they rendered the accused incapable of appreciating the risk or conforming to the reasonable person standard. [21] Lamer C.J.C., for the other four members of the court, concurred in the result but fashioned a different test for determining culpability for crimes of negligence. He favoured a qualified objective test which measured the accused’s conduct against “a reasonable person who possesses all of the accused’s limitations.” By limitations, the Chief Justice meant characteristics “which the accused could not manage or otherwise control” (p.363). [22] Mr. Harris submits that when liability rests in a failure to act where there is a duty to act, the qualified objective approach preferred by Lamer C.J.C. should be applied. Mr. Harris sees this as a case where the appellant’s liability rests exclusively in her failure to rescue her child from the grandmother when, as Mr. Harris acknowledges, the appellant had a legal duty to attempt to do so. He contends that had the trial judge used the qualified objective approach, he would have been obliged to consider the appellant’s personal characteristics (eg. her limited intelligence and her fear of her mother) in deciding whether the appellant’s failure to come to Kira’s assistance constituted a wanton and reckless disregard for the life or safety of Kira. [23] Apart entirely from the legal merits of this submission, it fails on the facts as found by the trial judge. The appellant’s liability did not rest solely on her failure to act. While it is true that the trial judge emphasized her failure to act in coming to his conclusion, he also found that the appellant participated to some degree in the activity that caused Kira’s death. The appellant’s liability arose out of a course of conduct that included but was not limited to her failure to come to Kira’s assistance. [24] I will, however, address the merits of the appellant’s submission. Mr. Harris does not suggest that the distinction he urges is established in the case law. He turns to first principles and asserts that the criminal law has recognized that a person who fails to act to avert a harm is less culpable than one whose actions caused the risk of harm: e.g. see E. Colvin, Principles of Criminal Law, 2d ed. (1991) at p. 75. He argues that a subjective mens rea requirement is consistent with the view that a failure to act is less culpable than an action which creates a risk. On his submission, a failure to act becomes criminal only when accompanied by an actual appreciation of the risk. [25] The distinction relied on by the appellant was made by this court in R. v. Tutton (1985), 18 C.C.C. (3d) 328 at 345-48. Dubin J.A. applied a purely subjective test in determining whether the appellants’ failure to provide necessaries to their child amounted to criminal negligence causing death. In doing so, he held that fault for conduct-based allegations of criminal negligence should be determined on an objective basis while fault for omission-based allegations of criminal negligence should be determined subjectively. [26] Unfortunately for the appellant, the distinction between acts and omissions drawn by this court in R. v. Tutton, supra, found no supporters in the Supreme Court of Canada. McIntyre J., for three members of the six-person court, expressly rejected the distinction and favoured an objective assessment of fault for all allegations of criminal negligence: R. v. Tutton (1989), 48 C.C.C. (3d) 129 at 139 (S.C.C.). Wilson J., for the other three members of the court, also drew no distinction between acts and omissions. She would have employed a subjective assessment of fault for all allegations of criminal negligence causing death. [27] The decision of the Supreme Court of Canada in R. v. Tutton, supra, does not close the door on the appellant’s submission as a matter of stare decisis. It is, however, formidable authority against that submission. The subsequent criminal negligence jurisprudence of the Supreme Court of Canada also tells against the appellant’s submission. [28] In R. v. Creighton, supra, McLachlin J. spoke in terms of carrying out an activity in a dangerous fashion. This is hardly surprising since on the facts in Creighton, liability rested on the accused’s actions (the administration of cocaine to the victim). By framing her reasons in terms which corresponded to the facts of the case before her, I do not think McLachlin J. can be taken as having intended to draw any distinction between acts and omissions. To the contrary, her description of conduct-based fault (objective mens rea) and her conclusion that subjective characteristics short of incapacity were irrelevant to the determination of culpability where fault was conduct-based apply with equal force to acts and to omissions. [29] In describing the nature of the fault element in crimes of negligence, she wrote, at p. 382: Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably. [Emphasis added.] [30] In addressing the merits of a single legal standard for the determination of criminal liability based on negligent conduct, she said, at pp. 388-89: These considerations suggest that the practical as well as the theoretical concerns of the criminal law in the field of penal negligence are best served by insisting on a uniform standard of conduct for everyone, subject to cases where the accused was not capable of recognizing and avoiding the risk attendant on the activity in question. Beyond this, the standard should not be individualized by reason of the peculiar personal characteristics of the accused. The purpose of Parliament in creating an offence of objective foresight, as in manslaughter, is to stipulate a minimum standard which people engaged in the activity in question are expected to meet. If the standard is lowered by reason of the lack of experience, education, or the presence of some other “personal characteristic” of the accused, the minimum standard which the law imposes on those engaging in the activity in question will be eroded. The objective test inevitably is transformed into a subjective test, violating the wise admonition in R. v. Hundal, supra, [(1993) 79 C.C.C. (3d) 97 (S.C.C.)] that there should be a clear distinction in the law between subjective and objective standards, and negating the legislative goal of a minimum standard of care for all those who choose to engage in criminally dangerous conduct… [31] The determination of fault based on a failure to direct one’s mind to a risk can be applied equally to acts and omissions. The need for a uniform standard for the determination of criminal culpability is as important where the law imposes a duty to act and no action is taken, as it is in cases where a person engages in conduct which creates that same risk. It would run contrary to the principle of uniformity and the values underlying that principle if the criminal law were to distinguish between a parent who chooses not to administer a life saving drug to his child, thereby risking the life of that child, and a parent who actually removes the needle containing the drug from the arm of the child, thereby creating the very same risk. [32] The nature of culpability where fault is conduct-based and the rationale underlying the objective approach to crimes of negligence support the view expressed by McIntyre J. in R. v. Tutton, supra. The fault element for crimes of criminal negligence should be the same, regardless of whether liability arises out of a failure to act where there was a duty to act or out of actions which create a risk. [33] I do not, however, suggest that the distinction between omissions and actions may not be important in a particular case. As McLachlin J. observed in R. v. Creighton, supra, at pp. 391- 92, criminal negligence is determined by an application of a uniform legal standard of care to the specific activity and circumstances arising in each case. In some situations it may be that a failure to act where there is a duty to do so, will not fall below the requisite standard whereas actions which actually create a risk will fall below the standard. [34] Apart from the case law, the language of s. 219 of the Criminal Code denies the distinction between acts and omissions which the appellant seeks to establish. Section 219 defines criminal negligence in terms of actions (s. 219(1)(a)) and omissions where there is a duty to act (s. 219(1)(b)). It provides that either actions or omissions constitute criminal negligence where they show a wanton or reckless disregard for the lives or safety of others. The language of the Criminal Code, the primary source to be examined when determining the elements of a crime, suggests no difference between the fault element of criminally negligent conduct and the fault element of a criminally negligent failure to act where there is a duty to act. [35] I also regard the attempt to distinguish between acts and omissions as a fruitless exercise in many situations. Human activity involves a course of conduct. It is artificial to dissect that conduct into its component parts and label one part action and another part omission. The scope of criminal liability should not depend on semantics. The facts of this case make the point. Counsel for the appellant, in describing the appellant’s conduct, submits that she did not “engage directly in dangerous risk creating activity.” He further submits that she did not “voluntarily or willingly choose to embark on the dangerous activity.” I can accept that characterization. However, I think the appellant’s conduct could equally be characterized as activity. She heard Kira screaming and chose to remain where she was rather than going to her assistance. In my view, it could be said, without straining the meaning of the words, that the appellant, by choosing to stay where she was, chose to embark on a dangerous activity which enhanced the risk to her daughter’s life or safety. [36] The appellant also submits that R. v. Hibbert (1995), 99 C.C.C. (3d) 193 at 227-28 (S.C.C.) supports her position that the fault component cannot be purely objective where liability rests on a failure to act where the law imposes a duty to act. In Hibbert, supra, the court held that the objective standard set down in R. v. Creighton, supra, was not applicable in assessing reasonableness within the context of the defence of duress. [37] I do not think that Hibbert has any application to the appellant’s submission. The defence of duress is advanced as an excuse for having engaged in criminal conduct. An accused who pleads duress accepts that he or she performed the actus reus of the crime with the necessary mens rea, but argues that the circumstances are such as to excuse the commission of the crime. Where duress is advanced, one is not concerned with establishing the standard against which criminal liability is to be measured, but rather with determining whether a particular accused should be excused from conforming with that standard. As an excuse based defence is a personal plea for exemption from the generally applicable criminal law of conduct, it must be judged in part by reference to the characteristics of the individual which are relevant to the availability of that defence. The objective standard set down in Creighton, supra, is concerned with drawing the line between conduct which is criminally negligent and conduct which is not criminally negligent. It is not concerned with personal exemptions from compliance with the standards of the criminal law. [38] The appellant did not admit that she engaged in criminally negligent conduct and seek to rely on her personal characteristics as a basis for excusing that criminal conduct. Rather, she insists that her personal characteristics should be relevant to the determination of whether her conduct crossed the boundary between criminal and non-criminal conduct. Consequently, R. v. Creighton, supra, and not R. v. Hibbert, supra, is the controlling authority. [39] I have read with interest the academic commentaries relied on by the appellant in support of his contention that the fault requirement for criminal negligence should be different where the actus reus of the offence is an omission. Those commentators and others make the point that the criminal law is reluctant to hold that omissions can constitute the actus reus of a crime. That reluctance, however, rests on concerns about the kinds of omissions that should be criminally culpable and does not suggest that all omissions are somehow less culpable than actions. If the duty to act is clear and well established and the risk to others flowing from the failure to act is real, the criminal law has not been reluctant to impose liability. I would adopt the comments of Professor Ashworth in Principles of Criminal Law, 2d ed. (1995), at pp. 110-11: Thus the fragility of the act – omission distinction and the vagaries of the English language suggest that omissions liability should not be opposed in principle. There are some clear cases of omission in which it is desirable to have criminal liability, such as the parent who neglects to feed her or his child or neglects to protect it from abuse. Omissions can be involuntary or not, in the same way as acts; and, it is submitted, omissions can also be causes. Omissions liability may therefore satisfy the principle that no one should be held liable for bodily movements that he or she did not and could not direct. It may also satisfy the principle that no person should be held liable for conduct or consequences that he or she did not cause. The precise point of the act requirement is to exclude liability for mere thoughts that do not result in some bodily movement. Omissions liability does not require any bodily movement; instead, it is premised on failure to fulfil a duty. A parent may realize that it is her or his duty to feed a child, but may take no steps to do so. Omissions liability can only be said to uphold the rationale of the act requirement, while departing from its terms, in so far as the relevant duty is widely publicized and widely known. In those circumstances there can be no fairness objection to holding a person liable, provided that he or she is capable of taking some steps to carry out the duty. [Emphasis added.] VI [40] The last submission advanced by the appellant depends on the admissibility of “fresh” evidence tendered by the appellant on the appeal. That evidence consists of a report prepared by Dr. Isabelle Coté, a psychiatrist, and her testimony during the sentencing phase of the appellant’s trial. [41] The report of Dr. Coté was prepared at trial counsel’s request and was available to him well before the trial. He chose not to call Dr. Coté and to instead advance a defence which rested entirely on the Crown’s failure to establish that the appellant knew that Kira was at risk as a result of her grandmother’s conduct. He tendered the report and Dr. Coté’s evidence on sentencing to establish the appellant’s mental state and the dynamics of the relationship between the appellant and her mother. Trial counsel contended that both were mitigating factors on sentence and the trial judge agreed. [42] The psychiatric evidence tendered on appeal is hardly “fresh” evidence. It was available at trial. It is argued that the evidence is nonetheless admissible on appeal either because counsel’s failure to adduce it at trial constitutes ineffective representation and resulted in a miscarriage of justice, or because the interests of justice demand that this court receive the evidence even though it was available at trial. In support of the second submission, the appellant relies on the well established principle that fresh evidence can be admitted on appeal in criminal cases where its admission is necessary to avoid a miscarriage of justice even though the evidence was available at trial: R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402 at 410 (Ont. C.A.); R. v. Price, [1993] 3 S.C.R. 633; R. v. Warsing (1998), 130 C.C.C. (3d) 259, per Major J., at 284, per L’Heureux-Dubé J., in dissent, on another ground, at pp. 273-74 (S.C.C.). [43] In submitting that counsel’s failure to lead the psychiatric evidence at trial amounted to ineffective representation, Mr. Harris fully complied with his professional obligations. The court was provided with trial counsel’s affidavit and his cross- examination on that affidavit by Crown counsel. Trial counsel gave a detailed explanation for his decision. It was counsel’s considered opinion that the appellant’s best defence was that she had no reason to believe that Kira’s life or safety was at risk. He believed that if he introduced the psychiatric evidence, it would of necessity include statements made by the appellant which would destroy that defence. Counsel also believed, based on his assessment of the case, that the psychiatric evidence would be of little assistance without evidence from the appellant. Based on his interviews with the appellant, trial counsel was satisfied that her evidence would not support the psychiatric opinions advanced by Dr. Coté. Finally, counsel was very concerned that the evidence could raise the issue of whether the appellant was incapable on account of mental disorder of appreciating the nature and quality of her acts. If that issue was raised, it could lead to a finding of not criminally responsible on account of mental disorder (NCR). Counsel was of the view that an NCR finding would not be in the appellant’s best interests. [44] I am entirely satisfied that trial counsel made a reasonable assessment of the situation. His decision not to tender the psychiatric evidence at trial does not demonstrate incompetence. To the contrary, it reflects a carefully considered assessment of a difficult situation. [45] I am also of the view that the interests of justice do not warrant the admission of the psychiatric evidence on appeal. In coming to that conclusion, I assess the relevance of the evidence on the basis on which counsel tenders it. He submits that the evidence is relevant to the appellant’s capacity to appreciate the risk to Kira. At the same time, however, he disavows any reliance on s. 16 of the Criminal Code. Like counsel at trial, he does not suggest that the appellant was incapable of appreciating the nature and quality of her acts on account of mental disorder. He firmly opposes any attempt to put the appellant’s “sanity” in issue. [46] As I read the psychiatric evidence, its only possible relevance is to the question of whether the appellant was incapable of appreciating the nature and quality of her acts on account of mental disorder. I do not suggest that the evidence would necessarily be relevant to that issue. The potential relevance of the evidence to that issue cannot be meaningfully assessed as it was not tendered on that basis, is not focused on that issue and has not been tested. I mean only to say that the evidence has no possible relevance apart from a claim that the appellant was incapable of appreciating the nature and quality of her acts on account of mental disorder. As the appellant emphatically does not tender the evidence on that issue, it follows that it has no relevance and cannot be received on appeal. [47] In so concluding, I observe that neither counsel for the appellant nor counsel for the Crown suggests that this is one of those rare cases where the court, on its own initiative, should explore the question of whether an accused is not criminally responsible on account of mental disorder. It is not suggested by counsel for the Crown or the appellant that there is any reason to believe that the appellant was not capable of appreciating the nature and consequences of her actions on account of mental disorder, or that she poses any ongoing danger to the community. VII [48] I would dismiss the appeal. Released: December 8, 1999 _______________________________ 1 The grandmother pleaded guilty to manslaughter in separate proceedings. Daniel Aguiar was tried with the appellant and convicted. He has not appealed.