By Heather Campbell Pope
This is Part 2 of a blog series on men and dementia.
The Manitoba Court of Appeal recently sent a strong message about the importance of protecting and caring for society’s oldest-old.
In an October 2019 ruling, Justice leMaistre stated, “More Canadians than ever are living to the age of 85 and beyond. Society benefits from the wisdom and life experience of our elders. It is essential that we protect them and provide for their care, particularly as they experience physical and mental-health challenges associated with aging.”[i]
The case involved an adult son who pled guilty to criminal negligence causing the death of his 89-year-old mother. A judge had initially sentenced him to three months in jail; the appeal court increased the sentence to two years.[ii]
At the time of the offence, Ronald Siwicki was aged 62 and living with his mother, Elizabeth Siwicki. In November 2014, Mrs. Siwicki fell out of her bed and was unable to get up. Her son was unable to move her back into bed. For the next 26 days, she remained on the floor, where she died on December 17, 2014.
During the time she was on the floor, her son gave her water and the nutritional drink Boost. He did not reposition her or seek medical or other assistance.
Mrs. Siwicki died from complications due to bedsores and prolonged immobility. After her death, first responders found her body in a deplorable state on the hallway floor: “She was on a plastic sheet with a blanket over her. She was covered in feces and urine, her hair was matted and dirty and she had several gaping and infected bedsores on her leg and hip. The house was described as being in an appalling state: cluttered, dirty and smelling of urine and feces.”
According to the pathologist, Mrs. Siwicki would have been in significant pain until the nerves in her wounds died. The autopsy also showed evidence of dementia. Had she received appropriate care, her death would have been “completely preventable.”
Those who knew Mr. Siwicki described him as “immature, indecisive and passive,” and as someone who would never go against his mother’s wishes. He had never been financially independent and had lived with his parents all his life. Mrs. Siwicki was described as a strong, independent and stubborn matriarch.
The Crown appealed the three-month sentence, arguing in part that the judge overlooked substantial aggravating factors, including Mrs. Siwicki’s vulnerability and reliance on her son, as well as his failure to seek assistance for her, regardless of her wishes. The Court dismissed this ground of appeal, finding that the factors were addressed by the parties in their submissions and were squarely before the sentencing judge.
Prior to his mother’s fall, Mr. Siwicki maintained that he had tried to get her help, but she did not want medical intervention, nor did she want to go to the hospital. She was afraid she would die there. Mr. Siwicki raised the possibility of getting homecare, but she refused. Two of his friends offered to help, but she refused.
Mr. Siwicki installed a safety bar and chair in the shower, and when she could no longer wash herself, he washed her. He also arranged for a home visit, and his mother initially agreed to go to the hospital once-a-week, but then refused. Mr. Siwicki said the only response someone at the hospital gave him was that “sometimes this happens.” He also had his brother-in-law try to persuade his mother that she needed help, but she refused. One cold day, Mrs. Siwicki went outside inadequately dressed and he called 911 after he could not get her back inside the house; when paramedics arrived, she refused to go to the hospital.
When she fell out of bed and he could not lift her back, he gave her a pillow and blankets. When the blankets became soiled, he brought her fresh ones. He also gave her water and a nutritional drink; the autopsy suggested she was not dehydrated or malnourished.
Mr. Siwicki has since acknowledged that “his responsibility was to help his mother rather than follow her wishes.” However, the case raises broader societal questions about the highly libertarian perspective dominating the elder rights movement. It is worth asking whether society’s internalization of the “right to live at risk” message might be insidiously contributing to dire outcomes, and lenient jail sentences. As I argued in my master’s thesis on loneliness and the law, the rights pendulum has swung too far in favour of unfettered autonomy; we are letting vulnerable seniors like Mrs. Siwicki needlessly suffer.[iii]
Regarding the principles of deterrence and denunciation, the Court of Appeal found that the sentencing judge erred when she focused on Mr. Siwicki’s personal circumstances rather than the circumstances of the offence.
The appeal court also found that the judge erred in her proportionality analysis. In particular, she lost sight of the difference between failing to provide the necessaries of life and criminal negligence causing death, which is a more grievous crime and involves higher moral blameworthiness. These errors led to a demonstrably unfit sentence.
In sentencing Mr. Siwicki to two years in jail, the Court of Appeal emphasized the prolonged nature of his conduct, which lasted at least 26 days, and the fact that he “had an extensive network of friends, as well as his nephew, who offered him support after his mother’s death, yet he did not ask for help from anyone while she was still alive.”
While an extreme case, tragic deaths like Mrs. Siwicki’s raise several issues about family caregiving. As the sentencing judge noted, it is hard to understand how the relationship of devotion between Mr. Siwicki and his mother “could end with her dying in such profane circumstances.”
Mr. Siwicki had a duty to provide adequate care for his ailing mother; why did he fail to do so? His mother’s death was medically preventable, but was there adequate caregiver support and follow-up to help him navigate the difficult circumstances?
In a pre-sentence report, a psychiatrist found no evidence that Mr. Siwicki had a mental illness or a mood or anxiety disorder; however, he did demonstrate “dependent traits and a history of hoarding.” He was assessed as a very low risk to reoffend.
When an adult son commits elder abuse or neglect, the dominant narrative often frames it as a case of “the unsuccessful son in the basement.” However, as I suggested in Dementia Justice’s housing vulnerability report, this language may be unhelpful.[iv] Without condoning such conduct by adult sons, a preferred approach may be to modify the narrative to align it with the well-established understanding that in some cases the perpetrator may be experiencing his own mental health issues, including caregiver stress. Indeed, a counsellor who saw Mr. Siwicki while he was on bail described him “as being overwhelmed with the situation.”
Mr. Siwicki’s lawyer has stated that his client will be appealing to the Supreme Court of Canada.
Beyond the gender politics of dementia
[i] R v Siwicki, 2019 MBCA 104 at para 1.
[ii] R v Siwicki, 2018 MBQB 115.
[iii] Heather Campbell, Parens Patriae 2.0: Invoking the Superior Courts’ Protective Jurisdiction to Help Lonely Older Men Age-in-Place (University of Saskatchewan, College of Law, LLM Thesis, 2016) at 3.
[iv] Dementia Justice Society of Canada, Nowhere to Live: Housing Vulnerability of Criminal Defendants with Dementia (Ottawa: Dementia Justice Society of Canada, 2019) at 32-33.