Reviewing R v Siwicki

Featured in Robson Crim

May 11, 2020

4 min read

Updated: 7 days ago

Author: A Clark

Canada is currently undergoing a huge shift in demographics. In the early 1970’s, people aged 65 and over made up just over 7% of the population. By 2030, it is estimated that this age group will make up a whopping 23% of our population. As individuals live longer, and the number of Canadians living with dementia increases, it is important that Canadian courts pay particular attention to the protection of this rising population of vulnerable people.

As the Manitoba Court of Appeal emphasizes in R v Siwicki, it is imperative today that the abuse and mistreatment of elders is denounced by the legal system. Mrs. Elizabeth Siwicki was 89 years old and living with dementia when she fell out of her bed on or about November 21, 2014. At that time, she was living her with son Ronald Siwicki. Mr Siwicki attempted and subsequently failed to lift Mrs. Siwicki back into her bed. He then provided his ailing mother with water and nutritional supplements as she deteriorated on the floor of the family home.

Mrs. Siwicki died 26 days later from her infected bedsores and immobility from lying on her side. The first responder who attended to the home upon her death observed that both Mrs. Siwicki and the surrounding carpet were covered in feces and urine. The pathologist described that Mrs. Siwicki would have been in pain for a number of days as the infection spread, and that her death was completely preventable. The sentencing judge found that the primary sentencing principles in this case were deterrence and denunciation.

Mr. Siwicki entered a plea of guilty to criminal negligence causing the death of his mother. The maximum sentence for the offence is life imprisonment. The judge found that the facts of this case were “very analogous” to those in which the accused failed to provide the necessaries of life. The maximum sentence for said offence is only five years, and was used as a reference point in discussion of an appropriate length of sentence. The judge also considered such mitigating factors as the accused’s guilty plea, remorse, lack of prior record, ignorance and inability to make adult decisions. The judge considered the defense’s suggestion of a conditional sentence but found this was not available, and that a period of actual imprisonment was necessary. Ronald Siwicki was sentenced to three months incarceration.

The Crown appealed the sentence. On appeal, the judge found that the sentencing judge had failed to focus on the circumstances of the offence, leading to a sentence that underemphasized the primary sentencing principles of deterrence and denunciation. The sentencing judge also failed to acknowledge the higher blameworthiness of the offense of criminal negligence causing death. The Court of Appeal noted that the sentencing judge seemed to have lost sight of the offence committed, thus imposing a sentence that is not reconcilable with other cases of criminal negligence causing death.

The accused committed and pleaded guilty to a serious offence. In addition, the court of appeal found several aggravating factors that should be taken into account in respect of sentencing. Mr. Siwicki was dishonest about the amount of time his mother had been on the floor, and purposefully attempted to conceal his neglectful behaviour towards her. He also had a large network of supports whom he could have reached out to for help or guidance. Additionally, the horrific circumstance of the offence must be considered, namely that Mr. Siwicki’s conduct was prolonged over twenty-six days, and that the death was directly attributable to his failure to act throughout that entire time. Taking this into consideration, the court of appeal sentenced Mr. Siwicki to two year’s incarceration.

I believe that the Court of Appeal handed down a significantly more appropriate sentence in respect of Mr. Siwicki’s crime. S 718 of the Criminal Code of Canada provides the purpose and principles of sentencing, including deterrence and denunciation. Deterrence serves to discourage both the offender and other persons from committing similar offences, while denunciation serves to condemn the behaviour in accordance with society’s abhorrence for the crime. In the case of an offence against a vulnerable person, S 718.04 states that denunciation and deterrence must be given primary consideration.

A sentence of three months fails to appropriately address both the principle of deterrence and the principle of denunciation. Ronald Siwicki’s case has been widely publicized by newspapers, and Canadians across the country will read about his crime and the sentence imposed. It is important to the principle of deterrence that respect for the elderly is reinforced as a Canadian value. Our vulnerable populations will not be treated as expendable, and threats to the health and safety of elderly Canadians will not be tolerated by our judicial system. The sentence of three months incarceration handed down by the Court of Queen’s Bench is very lenient. It acknowledges the various mitigating factors in this particular case, but fails to recognize the impact the lesser sentence may have on other’s behaviour within our communities. Elder abuse is a social problem, perpetuated by overwhelmed or neglectful caregivers who are apathetic to the consequences of their actions. Judicial denunciation of this behaviour is achieved through sentences that are proportionate to the severity of the crime, and through recognition that elder abuse is a crime worthy of a meaningful punishment.

Canadian Courts are uniquely positioned to communicate society's condemnation of an offender's conduct. The Court of Appeal appropriately recognized the importance of affirming Canadians’ abhorrence of elder abuse in sentencing Siwicki to two years incarceration. The Supreme Court of Canada has declined to hear Mr Siwicki’s appeal.