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What is Just? - Jordan DeMerchant

One of the most fundamental questions to the functioning of justice is what is a just punishment for a crime? The Manitoba Court of Appeal decision in the case of R. v. Siwicki addresses this important issue and puts into question the purpose of sentencing. According to the Criminal Code of Canada “The fundamental purpose of sentencing it so to protect society and to contribute, along with crime prevention initiatives, to have respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” The question then becomes what is the more critical, deterrence and denunciation of the crime or the need to look at the unique circumstances that surround each case calling for a more tailored approach to reach the goal prescribed by the Criminal Code.

The background of this case is as follows. Elizabeth Siwicki (the mother of the accused), fell out of bed and was unable to get up. Ronald Siwicki (the accused) then left his mother there for almost 4 weeks before she eventually died. Following an autopsy, it was revealed that she had died from complications related to the time she spent unable to move on the floor. It was discovered after this time that the accused only provided his mother with water and nutritional drinks and did not make any meaningful attempt to get her back into bed and did not seek medical assistance. It was also determined that her death was entirely preventable had any action been taken to improve her circumstance or with medical intervention. The accused was then charged and pleaded guilty to criminal negligence causing the death of his mother. At sentencing, the judge imposed a sentence of 3 months on the accused citing that the case was nearly factually analogous with the offence of failing to provide the necessaries of life. She also took into consideration many of the accused personal factors and dynamics surrounding the case. The Court of Appeal in this decision then overturned the ruling and instituted a sentence of 21 months. The question here is which is the right and just approach. Each court seemingly follows a different philosophy regarding the sentencing of convicted accused.

Following the facts of the case in the vacuum, it becomes easy to conclude that the accused is a monster who left his mother to die on the floor of her bedroom. But the myriad of circumstances surrounding this case, as well as many others like it, begs the question, are bare facts enough. In this decision the majority of the court has said yes. In the decision written by LeMaistre JA stated that  “the sentencing judge erred when she focussed on the personal circumstances of the accused rather than the circumstances of the offence”, he argues that this emphasis led to the undermining of what he deemed to be a fit sentence. He also argued “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. The approach taken here by the court is a strict one based on precedent and the base rule of law. They believe that context does not matter as much as the aggravating factors, proportionality, and the importance of deterrence and denunciation of the sentence. The court also focused on the definition of criminal negligence causing death believing that the trial judges belief that the case was more similar to failure to provide the necessities of life gave her a skewed view of the case and therefore a lighter sentence. Ultimately, the court decided that the sentencing judge erred by focussing on the personal circumstances of the accuses when deterrence and denunciation were the primary sentencing principles  and by imposing a sentence that is not proportionate to the gravity of the offence and the degree of responsibility of the accused.

This decision is in stark contrast to that made by the trial judge, as well as by the dissent in this case, who believed that the trial judge was within her ability to consider all factors of the case and did not impose a sentence that was unfit for the crime. The trial judge’s decision was highly influenced on a pre-sentence report that was provided that explained the context surrounding this case and what led to its outcome. The report outlined the accused’s background as well as significant life changes that had been made since the event had occurred. According to the report, Mr. Siwicki was a man who was controlled by his parents, particularly his mother his entire life. And according to the accused himself, his parents were his decision-makers throughout his life. Prior to this incident, his mother had either refused to go to the hospital for treatment and expressed her desire to not wanting to ever go to the hospital on multiple occasions. The report also indicated that since the event, the accused had made significant changes in his own life after the death of his mother which included; addressing his own health issues, getting a girlfriend and a group of friends, and living on his own in an apartment. The report concluded by saying that the accused was at a low rate to re-offend and was now thriving in the community. Now while these assessments do not absolve Mr. Siwicki of the crime he committed by allowing his mother to die, it does paint a picture where one might be able to see and understand the context which led to this terrible situation.

I believe that the radically different approaches taken at the different levels in this case outline a truly fundamental shift that needs to occur in the judicial system. The essential question of if prison is to punish or to rehabilitate is really what is being discussed in this case, without a decisive decision. My belief is that movement towards a system that does not rely so heavily on previous decisions, definitions, and processes which lead to a system overburdened with prisoners is desperately needed. Rehabilitation based on the context of the case, much like what was originally decided here seems to be the way forward in providing outcomes that punish and reform based on context.

R v Siwicki, 2019 MBCA 104 (CanLII)


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