What is a Just Sentence? – Discussing R. v. Siwicki

C Dyck - law student

Dec 16, 2019

5 min read

Updated: 9 hours ago

Author: Caitlin Dyck

For a sentence to be just, it must be in line with the principles of sentencing that are codified in the Criminal Code of Canada. Most importantly, “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives” (Criminal Code of Canada, s.718).

Set out below is the case of R. v. Siwicki, with a review of the sentencing judge’s decision and then focusing on the Manitoba Court of Appeal decision. Siwicki is a case that invites one to consider the present state of sentencing law in Canada, and to what extent the courts objectively apply the sentencing principles entrenched in the country’s legislation.

Background

On November 21, 2014, 89-year-old Elizabeth Siwicki fell out of bed and could not get back up. For the next 26 days (approximate) she would lie on the floor, until her eventual death on December 17. The accused, her son Ron Siwicki, fed her nutritional drinks and water while she was on the floor, but did not seek medical assistance. He attempted to lift her up and place his mother back in her bed but was unsuccessful. Mrs. Siwicki subsequently died of complications from bedsores and immobility caused by the prolonged period she spent on the floor. Her body was found in horrendous condition, covered in urine and feces, with multiple infected bedsores on her leg and hip that went right down to the bone. In the autopsy, it was concluded that she would have been in immense pain as the infection spread, and that her death was entirely preventable. The accused pled guilty to criminal negligence causing death, for his failure in providing adequate care to his mother.

An interesting point that may impact the sentencing decision in this case is that Mrs. Siwicki had previously expressed a refusal of medical care. She was of the opinion that hospitals were where people went to die. As well, the accused was described as immature and dependent on his mother, as well as struggling with decision making. These facts may have an impact on the level of blame being placed on Ron Siwicki at sentencing.

Sentencing

In the above circumstances, what was a just sentence for the accused? At sentencing, the Crown stated aggravating factors such as a high moral blameworthiness which play a role in determining an appropriate sentence. It suggested that a fair sentence on the facts of this case would be in the range of 3-4 years incarceration. Counsel for the accused recognized deterrence and denunciation as primary sentencing principles, yet still asked for a suspended sentence including supervised probation.

The sentencing judge determined an appropriate sentence to be 3 months, reasoning that this case was nearly factually analogous with the offence of failing to provide the necessaries of life. The judge found the sentencing principle of rehabilitation to be met, because the accused sought help to improve his health and is now supporting himself and leading an independent life.

While rehabilitation is an important factor in sentencing, deterrence and denunciation are equally, if not more important. The idea of preventing the individual, as well as the general public from committing similar offences, and showing the public that this is not something which the courts condone are key to deciding a sentence. The Crown, for one, did not believe that the sentencing judge properly considered these principles, and imposed an unjust sentence that was too light.

It is possible that the sentencing judge was sympathetic of Mr. Siwicki, due to the circumstances in which the incident occurred. He was following the wishes of his ill mother, to the point where, as the court found, his inaction contributed to her death. One can see how the accused may be sympathetic; a dependent, immature son who only wanted to please his mother. However, it is important to note that it is the court’s responsibility to be an impartial, unbiased third party.

Manitoba Court of Appeal

It is the opinion of the Crown that the sentencing judge erred in handing down a 3-month sentence to the accused. They state that aggravating factors were not properly considered, rather, the judge focused on the accused’s individual circumstances and the sympathy those circumstances evoked. The Crown also brought up the sentencing judge’s reliance on the similarities to the offence of failing to provide the necessaries of life. The accused was charged and pled guilty to the offence of criminal negligence causing death. This is an offence with a higher level of moral blameworthiness and requires a harsher sentence be imposed to fall in line with the primary sentencing principles of deterrence and denunciation.

At the appeal level, the Crown declared that the sentencing judge was mistaken by referring to only a singular aggravating factor; the appeal court rejected this ground of the appeal. leMaistre J.A., writing for the majority, concluded that the sentencing judge erred in the focus on personal circumstances of the individual versus the circumstances of the offence itself.

The appeal court also found issue with the sentencing judge’s conclusion regarding proportionality. The majority decision of the Manitoba Court of Appeal determined that a sentence of 2 years incarceration should be imposed (less time served), and the sentence going forward shall be 21 months.

M.A. Monnin J.A. of the Manitoba Court of Appeal gave the dissenting judgement in this case. He disagreed with the majority and did not think the sentencing judge erred by focusing on the accused’s personal circumstances. He did not believe that the imposed sentence was demonstrably unfit and would dismiss the appeal.

Conclusion

In Canada, judges must comply with the sentencing principles set out in Part XXIII in the Criminal Code of Canada. In R. v. Siwicki, the sentencing judge did not fully consider all of these issues. She focused her decision on the individual circumstances of the individual, rather than the offence itself. This does not reconcile with the idea of a fair, arbitrary sentence.

I am of the opinion that for a sentence to be just, it must meet the sentencing requirements that the legislation requires, and not impose undue bias. It is the role of the judge to be an impartial third party, and this is what the decision of the Manitoba Court of Appeal strives to do. While the Court of Appeal has made their decision in adjusting Mr. Siwicki’s sentence, the case may not be over yet. Due to the fact that there was a dissenting judgement from Justice Monnin, there is a chance that defence council may appeal the decision to the Supreme Court of Canada in the near future.