R. v. Bridle

2007 BCSC 1100 R. v. Bridle IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bridle, 2007 BCSC 1100 Date: 20070518 Docket: 62100 Registry: Kelowna Regina v. Richard James Bridle Before: The Honourable Mr. Justice Barrow Oral Reasons for Judgment May 18, 2007 Counsel for the Crown: D. Ruse Counsel for the Accused: D.B. Johnson K.T. Christiansen Place of Trial: Kelowna, B.C. [1] THE COURT: Richard Bridle is charged with manslaughter in relation to the death of his wife. The manslaughter is based on the unlawful act of assault, which Mr. Bridle is alleged to have committed on July 31, 2005. [2] The overarching issue at this trial, as in all criminal trials, is whether the Crown has proven its case beyond a reasonable doubt. I am satisfied to the requisite degree that Mr. Bridle assaulted his wife on July 31, 2005. The real issue is whether that assault legally and factually caused her death. [3] In what follows, I will sometimes refer to the deceased as Linda. I do that in order to distinguish her from her mother-in-law, Mrs. Bridle, who also played a role in this trial. The Facts [4] Richard and Linda Bridle were married on August 16, 1998. They moved from Salmon Arm to Kelowna in 2004. Mr. Bridle's parents live in Kelowna, and after the couple relocated here, they spent considerable time together. In particular, Mrs. Bridle spent significant time with Linda during the last eight months of her life. [5] Linda Bridle was 49 years old when she died. She looked much older. She weighed approximately a hundred pounds and was described by Dr. Currie, the pathologist who performed an autopsy on her body, as emaciated. She had contracted epilepsy some 18 years before her death. She had seizures, primarily in the early morning hours, approximately two or three times per month. She kept track of those seizures on a calendar. She took anti-convulsion medication. [6] She was diagnosed with small cell lung cancer in December 2004. On January 13, 2005, she had a bone scan that revealed that the disease had metastasized to her bones, specifically her ribs, pelvis, skull and both of her femurs. She had a CAT scan that same day, but it did not reveal any metastatic disease in her brain. Small cell lung cancer is a particularly aggressive form of cancer, and Linda's prognosis was bleak even as of January 2005. She underwent a course of chemotherapy, and although she was in significant pain, she was otherwise relatively symptom free until perhaps the spring, when she began to develop problems with her balance, a condition medically described as ataxia. For reasons that will become apparent, her level of cognition in the days and weeks before her death is significant. [7] Mrs. Bridle, the accused's mother, testified that following her daughter-in-law's diagnosis, she spent as much time with her as she could. She visited with her and took her to medical appointments. She noticed that Linda's balance was compromised beginning in the spring and that the condition grew steadily worse. She had to be careful not to fall, but despite her care, she often either fell or bumped into furniture, causing bruises. [8] On Sunday, July 24th, a week before the assault, Linda and Mr. Bridle went to his parent's house for dinner. Linda was in significant pain, notwithstanding the morphine she was receiving, and her movements were slow, as was her speech. She was, however, able to participate in conversation. Mrs. Bridle drove the couple to their apartment following dinner. This was the last time that Mrs. Bridle or anyone else, aside from the accused, spoke with Linda. [9] On July 31st at about 6:30 p.m., Mrs. Bridle telephoned her son to, among other things, enquire about Linda's health. The accused answered the phone. Mrs. Bridle asked how he was; he answered, "Not very good." She asked if he had been drinking; he said, "Yes." She asked to speak to Linda, and the accused said that she could not. Mrs. Bridle became angry and demanded to speak with her daughter-in-law, and the accused said that she could not because she was unconscious. [10] Mrs. Bridle, alarmed by what she had been told, said that she and her husband were coming over. The accused told her not to. Mrs. Bridle said either they were coming over or she was going to phone the police. She raised her voice during this conversation to a degree sufficient to attract her husband's attention. He took the phone and essentially put the same choice to his son, either they were coming over or they were phoning the police. The accused relented and agreed that they could come over. [11] Mr. and Mrs. Bridle left immediately and arrived at their son's apartment at approximately 7 p.m. On arrival, Mrs. Bridle found Linda on the bed in the master bedroom. She was covered with a towel, but was otherwise naked. She was breathing, but one of her eyes was significantly swollen. There was blood around the area of her mouth, which was cut. She also had an abrasion to her forehead. When Mrs. Bridle called her name, Linda responded by opening the one eye that was not swollen and grunting. [12] Mrs. Bridle asked if an ambulance had been summonsed. She then noted her husband and son struggling over the phone, and the accused saying something about being afraid he would be taken to jail. Mrs. Bridle grabbed the phone and spoke to the 9-1-1 operator and requested an ambulance. [13] While waiting for the ambulance, Mrs. Bridle asked her son what had happened. He told her that Linda had let the sink in the kitchen overflow and when he saw that he became angry and slapped her. She then went into the bathroom and he followed, he slapped her again, and she fell forward from her position in front of the toilet. He said that she lost consciousness and he took her to the bedroom where Mrs. Bridle eventually found her. The accused said all of this happened about three hours earlier and that Linda had been unconscious since. [14] Mrs. Bridle dressed Linda, and the police and ambulance arrived about 15 minutes later. Mrs. Bridle said the accused was agitated and upset, and he was slurring his words and had, in her opinion, been drinking, a state in which she had seen him before. [15] Mrs. Bridle remained with Linda in the hospital continuously over the next day and a half, save for a short trip home to shower. She spoke with her and held her hand to her forehead. When she stopped doing that, Linda would open her one eye and sometimes grunt. She never regained consciousness. In the early morning hours of Tuesday, August 2, 2005, her pattern of breathing changed, and she appeared to go into a deeper state of unconsciousness. She no longer responded to Mrs. Bridle in any fashion. At about 10:30 in the morning, she simply stopped breathing and died. [16] Mr. Waters is a paramedic. He and his partner were called to the Bridle apartment at about 7:15 p.m. on July 31st. They arrived seven minutes later and found Linda on the bed with Mrs. Bridle. He administered a number of tests designed to determine Linda's level of consciousness. The results are expressed on a scale known as the Glasgow Coma Scale, which has a range of between three, which is near death, and fifteen, which is fully conscious. Linda scored eight, which is in the low/moderate range. She was given Narcan in case her condition was due to a drug overdose and was taken to the hospital. [17] At the hospital, she was first seen by Dr. Eppler, an emergency room physician. He ordered a CT scan and viewed the results which showed areas of haemorrhage in her brain and the presence of tumours. He sought the assistance of Dr. McCauley, a specialist in internal medicine, who examined Linda that evening and reviewed the CT scan results. He prescribed medication to reduce the swelling in her brain, which he theorized may have been the cause of her reduced state of consciousness. He also prescribed a broad spectrum antibiotic. Although she was able to move all four of her limbs, she did not do so on command. She did react to painful stimuli, but only minimally. Dr. McCauley ordered a full range of blood tests. He was, however, unable to conclusively explain the cause of her reduced level of consciousness. She was admitted to the hospital and cared for palliatively until she died. [18] Dr. Kurkjian is a radiologist. He reviewed Linda's CT scan on the evening of July 31st. Scans were done both with and without contrasting medium. In his opinion, there were numerous nodules or tumours throughout her brain. He saw five tumourous growths in the pons, an area of the midbrain, as well as some in the cerebellum, another area of the midbrain. In addition, he noted that her brain was swollen. This was apparent in the outer margins of the brain where the tissue ordinarily has an appearance similar to the folds in the top of a curtain. Excess fluid on the brain causes these folds to compress, and that is what Dr. Kurkjian saw. Finally, he noted two areas of haemorrhaging in her brain. He looked at the CT scan that had been taken in January and noted that none of the abnormalities that he saw on the July 31st scan were evident in the earlier scan. [19] The accused was arrested on July 31, 2005. He was released several days later and then rearrested on August 10, 2005. On that day he gave a statement to Constable Blake which, following a voir dire, I ruled admissible. In that statement, he provided an account of the events of July 31st. The accused did not testify in this trial. In his statement, he said he had been drinking during the day in question. Although he could not recall how much he had to drink, it was enough that his recollection of some of the events was somewhat "fuzzy". As to the events during the day in question, he said that Linda had been doing crosswords. In terms of what he was doing, he said [as read in]: I ‑‑ watching videos or whatever. It was -- I don't know -- I mean, to be honest with ya, I -- now, I don't know if I even ate anything. You know, I'm sure Linda had something. Like I said, we were watching videos pretty much all day and I was starting to, you know, lose it, I guess. Just not lose it, lose it, but just, you know, come -- I was intoxicated, I guess in a sense. He described the events in the apartment a number of times during his statement. The most coherent and spontaneous account of what happened in the kitchen is contained in the following [as read in]: Now, I've said there was a bunch of dishes and stuff to do. I was still doing the laundry. I was kinda bouncing in -- in from the bathroom to the bedroom and then back into the hallway and down the hall kind of thing, but when I -- I had come out there was water everywhere. The sink was overflowing, and Lindy was just standing there, just standing there, like watching it I guess. And I said, "What the fuck is going on," I think is what I said. I said, "Couldn't turn off the fuckin' sink." I just -- I think -- I started cleaning up, but drained the sink of water and I wiped up the floor with towels and said, "Why in the hell couldn't you turn off the frickin sink" or the f'in' sink I think I said. At that point I don't know what she said to me. I don't. I slapped her. I slapped her. I didn't like full tilt punch, bang, boom kind of thing. No way, no way. But I did, I slapped her on the face, not hard like, you know, but she went over into the wall, and she said, "Rick, Rick." Linda then went into the bathroom and the accused followed. He described what happened there in the following words [as read in]: By this point I think I was even angrier. I was -- I don't know why, you know. I -- I slapped her again in the bathroom, and then she had banged at the top of her head -- oh, on -- like, she kinda went over and she -- right on the top of her head. I never noticed it until she was -- she was actually -- you know, she was kinda, like, seemed kinda unconscious at the time. You know, like she really couldn't, you know -- she couldn't walk really at that point, so I carried her into the bedroom. And I don't remember actually hitting her a third time, whether I did or not I'm not really sure. I'm not really sure if I hit her a third time. I might have said that I did, but I'm not sure. [20] Linda was examined by Dr. Falconer, a neurologist, on August 1, 2005. He had not previously treated or seen her. [21] Following her death, an autopsy was performed by Dr. Currie. [22] The Crown retained Dr. Maguire, a neuropathologist, who examined various sections of Linda's brain that had been taken by Dr. Currie. All three of these doctors testified and all three offered opinions about the cause of Linda's death. All of their opinions differ to one degree or another. I will deal with those opinions after dealing with the law. The Law [23] Counsel agree on the applicable law. They do not, however, agree on the result that should follow from its application to the facts of this case. [24] In R. v. Nette, 2001 SCC 78 [Nette], the Supreme Court of Canada discussed the issues of factual and legal causation. Arbour J., for the majority, said that in order to be legally responsible for causing a particular event there must be both cause in fact and in law. As to the former, she wrote at para. 44: Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation. In terms of legal causation, the decision in Nette did not change the law. The majority, however, expressed the view that when explaining causation to a jury it may be preferable for judges to avoid Latin phrases such as de minimis, and expressing the test in the negative. Arbour J. said this at para. 72: ...while different terminology has been used to explain the applicable standard in Canada, Australia and England, whether the terminology used is "beyond de minimis", "significant contribution" or "substantial cause", the standard of causation which this terminology seeks to articulate, within the context of causation in homicide, is essentially the same... [25] The test for causation remains as set out in Smithers v. The Queen, [1978] 1 S.C.R. 506, where Dickson J. held at p. 517 that the act forming the basis of a charge of manslaughter will be legally causative if it is "at least a contributing cause of death, outside the de minimis range". While that is all the Crown has to prove, it must prove that level of causation beyond a reasonable doubt. [26] The mental element of unlawful act manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory in the context of a dangerous act. The mental element obviously also includes that which is required to form the underlying offence. Foreseeability of death is not required (see generally R. v. Creighton (1993), 83 C.C.C. (3d) 346 at p. 373). Analysis [27] Counsel for the accused argues that the act of slapping his wife in the manner already described, and given that the accused did not know that her lung cancer had metastasized to her brain, was not an act that carried with it an objectively foreseeable risk of bodily harm that was neither trivial nor transitory. [28] I am unable to agree. Linda Bridle was emaciated. She was obviously weakened. She was, to the accused's knowledge, markedly unsteady on her feet. Slapping her with the kind of force necessary to cause her eye to markedly swell and to bruise her lips is conduct that carried with it objectively foreseeable harm, indeed significant harm. [29] The primary issue in this case relates to causation and, particularly, factual causation. As pointed out, there are three different medical opinions as to the factual cause of Linda's death. The first is that offered by Dr. Currie. Although the Crown did not rely on his opinion in support of its theory of the cause of death, it did to a degree rely on some of his other opinions, in particular, those relating to the injuries he found on autopsy. I think it appropriate to set out the entirety of his opinion in any event. [30] Dr. Currie is a well qualified, experienced forensic pathologist. He offered his opinions within that area of expertise. [31] He performed an autopsy on Linda Bridle's body on August 3, 2005. On his external examination of her body, he found two general groups of injuries. The first consisted of a number of bruises on her legs and arms, all of which appeared relatively old and showed signs of healing. These bruises are consistent with what he would expect to find if someone bumped into furniture or suffered similar minor mishaps. [32] The second group were all relatively fresh injuries between, in his opinion, two and a half and three days old. They were found primarily on her face and head and to a lesser extent on her extremities. The injuries to her face and head consisted of a blackened right eye and an abrasion above that eye. There were three injuries to her mouth. Both her upper and lower lips were bruised but not cut, although they were lacerated. Her frenulum, the tissue that extends from the gum to the lip, was lacerated. According to Dr. Currie the force necessary to cause injuries of this kind would be moderate, consistent in his view with a punch. There was no injury to Linda Bridle's nose, and to that extent the injuries to her mouth were inconsistent with her having fallen. As with the injuries to her mouth, Dr. Currie's opinion is that the injuries to her eye were the result of a moderate application of force, again consistent with a punch. The abrasion to her forehead was sufficient to break the skin but did not cause any underlying injury to the skull. It could have been caused by falling or striking an edged object. Dr. Currie also noted there was a significant injury to Linda Bridle's tongue, consistent with what one would expect to find in a patient that had suffered a grand mal seizure. This injury was also recent, that is, of approximately the same age as the other injuries to her face. [33] On examining Ms. Bridle's skull and brain, Dr. Currie found three things of significance. First, on the back of her head between the scalp and the skull, more or less in a straight horizontal line from the injuries to her mouth and eyes, he found a bruise about three by four centimetres in dimension. This too was a relatively recent injury. Although there was no underlying damage to the skull, the force necessary to create a bruise of this kind was consistent with what he described as a "good heavy blow". It is consistent with the kind of injury he would expect if someone of average height fell and bumped their head on coming to rest. [34] Throughout Ms. Bridle's brain, he found a significant number of metastatic tumours secondary to a primary lung tumour. Two of the tumours, on gross or visual examination, appeared to have recently bled. These tumours were more or less along a line from the injuries to Ms. Bridle's mouth to the bruising at the back of her head. The bleeding, in Dr. Currie's opinion, led to swelling within the brain which led to her death. [35] All of the doctors who offered opinions on the cause of Ms. Bridle's death agree on one thing; the brain is housed in the skull and has a limited ability to accommodate additional mass. If additional mass is introduced, whether by way of tumours or blood or other fluids, the brain can accommodate it in three ways: expelling fluid, reducing the blood flow, or simply compressing. At a certain point, however, the brain is no longer able to accommodate additional mass, and at that point, its only option is to compress into the spinal column through the midbrain. The midbrain controls the autonomic functions of the body, including breathing, and once compromised breathing stops. Death occurs as a result of the brain being starved of oxygen. All of the doctors agree that is likely the cause of Ms. Bridle's death. They disagree, however, as to whether the trauma she sustained as a result of the blows administered by the accused caused her brain to swell to the point where her breathing was compromised. [36] It is Dr. Currie's opinion that as a result of the blows to her face, which caused the damage to her eye and mouth, the brain was jolted and, in turn, this caused the tumours that were aligned with the force of the blows to bleed, and that led to her brain swelling beyond its ability to accommodate it, and that led to death. [37] Dr. Maguire is a highly qualified and experienced neuropathologist. He has a number of sub-interests which interestingly correspond to the diseases that Ms. Bridle was experiencing. He practises at the Vancouver General Hospital, where he performs neuropathological services, conducts research, and teaches. A significant component of his practice is conducting brain autopsies. He performs between 200 and 250 such autopsies per year. He is also called upon to examine tissues from the brain or the nervous system for the purpose of analyzing disease processes. Included within this component of his practice is an examination of brain tumours. He does these things both on behalf of the Vancouver General Hospital and the B.C. Children's Hospital. He also works providing support to the B.C. Cancer agency and, in particular, to their neurooncology program, providing consultative assistance by examining brain tumour specimens. Finally, he is the reference neuropathologist for the epilepsy program at the Vancouver General Hospital and in that capacity examines specimens obtained for the treatment of epilepsy. He is, as the Crown aptly put it in argument, uniquely qualified to provide an opinion in relation to Ms. Bridle's neuropathology. [38] It is Dr. Maguire's opinion that Ms. Bridle died as a result of severe diffuse axonal and vascular injury to her brain. These injuries were so severe that her cognitional abilities would have been permanently and seriously compromised even if she had lived. [39] Counsel for Mr. Bridle takes issues with Dr. Maguire's opinion for three reasons. The first is that the quality and quantity of the tissue samples he analyzed were insufficient to ground his diagnosis. Second, there were other causes for diffuse axonal or vascular injury such as hypoxia, that is, the lack of oxygen to the brain, or ischemia, the lack of blood to the brain, both of which were evident in Ms. Bridle's case and neither of which may have been related to the assault she suffered; and third, diffuse axonal and vascular injury is not typically caused by an assault of the relatively minor nature here proven. [40] Before turning to the substance of Dr. Magure's opinion, I will deal with the first two of the three issues raised by counsel for Mr. Bridle. [41] The optimal way to obtain tissue samples from a human brain is to allow the brain to set first for a period of between ten days and two weeks. If this is done, the specimens obtained are generally easier to manipulate under a microscope and are less prone to lifting from the slides onto which they are mounted. Dr. Currie took samples of Linda Bridle's brain in a fresh state. As a result the sections he obtained are subject to the limitations that that process may cause. In a forensic environment, sections are typically taken in a fresh state. It is no reflection on Dr. Currie's practice that he did this. It is simply a product of all forensic autopsies. [42] Dr. Maguire did not have the actual brain to examine; all he had were the sections taken by Dr. Currie. Dr. Maguire candidly acknowledged that he would have preferred to have had more samples and samples from different areas of Ms. Bridle's brain. He would have preferred that the samples had been taken after the brain had been allowed to set. Having said that, however, and it was he and only he that pointed out these limitations, he was able to "base definitive interpretations" on the material available. He explained why the number of samples he had from the locations that he had them did not prevent him from reaching a diagnosis and why the quality of the samples were not significantly limiting. I will deal with that explanation in what follows. [43] The brain is made up of billions of cells that fall into two broad categories: neurons and other cells that support the neurons. Neurons are the most important cells. They communicate with one another and with other parts of the body. They are only visible microscopically. Each neuron has a long extension which attaches it to the other supporting cells. These extensions are called axons. They are insulated with a coating of myelin. The white matter in the brain gets its colour from the pigment in the myelin coating. The myelination in the gray matter is less pronounced and hence the different colour. Axons are prone to injury, and when they are injured they leave characteristic changes visible microscopically. Axonal damage may be mild, moderate or severe. Severe axonal injury can lead to death or result in the patient being left in a persistent vegetative state. Diffuse axonal injury is, as the name implies, axonal injury that occurs throughout the brain. There are two mechanisms of axonal injury. One is more or less mechanical and the other is chemical. The brain consists of a number of components of varying density. There are differences, for example, in the density of the white matter and the gray matter of the brain. Axons transect the interface between these structures. When the brain is subjected to rapid acceleration, deceleration or rotational forces, the components of it move to a greater or lesser degree depending on their relative density. When this happens, there is a shearing effect along the interface which causes damage to the axons transecting that interface. When axons are damaged, the ability of the neurons to communicate is either impaired or lost. The damage is not limited to areas of interface; however, it is often most pronounced in those areas. Axonal damage in severe cases extends to the brain stem which is made up of, among other components, the medulla and the pons. The medulla is located below the pons. In milder cases, axonal damage may be found only in the peripheral or more remote areas of the brain. [44] Dr. Maguire would have preferred to have had sections from the more remote areas, and it is in this way that the quantity and location of the sections he had were wanting. However, it was and is his opinion that if there is diffuse axonal damage in the brain stem, there is always axonal damage in the more remote areas. He found diffuse axonal damage in the brain stem and as a result the lack of sections from the more remote areas did not negatively affect his ability to make a diagnosis. [45] The second consequence of axonal damage is biochemical in nature. When the membrane of the axon is damaged, it swells and eventually breaks. This sets in motion a number of biochemical reactions which take some time to occur. The mechanical aspect of the injury is often apparently relatively quickly. The biochemical damage occurs over time, usually between 2 and 18 hours. [46] Diffuse vascular damage is also an injury that occurs at the cellular level. The mechanism by which this injury occurs is less well understood. What is understood, however, is that if there is diffuse axonal damage it is accompanied by diffuse vascular damage. Vascular damage, like axonal damage, results in swelling in the brain which can lead to death. [47] Dr. Maguire examined a number of sections taken from three general areas of the brain of Ms. Bridle, the white matter and two areas within the vicinity of the midbrain above the brain stem. Representative areas of these sections were photographed, and the photographs were marked as Exhibit No. 14. That exhibit contains 12 photographs, and in what follows I will refer to the photographs by exhibit number, followed by a second number representing the specific photograph within the exhibit. [48] Dr. Maguire examined a section of the white matter which was photographed under intermediate magnification at Exhibit No. 14.1. This showed a blood vessel and blood outside the vessel. There was no tumour in this area. Bleeding may be caused by a number of things aside from trauma. One common cause is a reduced ability of the blood to clot. Dr. Maguire examined the blood tests carried out on Ms. Bridle's blood and determined that her blood had the ability to clot. Another possible explanation for bleeding is ischemic or hypoxic damage. In Dr. Maguire's opinion, it was not possible for damage of that nature to cause the amount of bleeding he saw in this section. Further, it is inconsistent with her level of functioning prior to the assault. In combination with his other findings, he attributed this bleeding to trauma and nothing else. [49] The second section he examined, photographed in Exhibit No. 14.2, was taken from the internal capsule of the basal ganglia found deep within the brain. The basal ganglia is made up of a number of parts, including the internal capsule, the caudate nucleus and the putamen. The basal ganglia is in an area particularly vulnerable to axonal and vascular injury because it is made up of and adjacent to areas of differing densities. Dr. Maguire found, on the border between the white and gray matter in this section, acute, recent and extensive haemorrhage. Bleeding stops upon death. Dr. Maguire concluded that this bleeding had occurred within less than three days of death. He is able to age the bleeding because when bleeding occurs certain predictable and sequential cellular reactions are triggered. They stop with death. As with the first section, this bleeding took place in an area of Ms. Bridle's brain in which there was no tumour. He concluded this bleeding was caused by trauma. [50] A third section, photographed in Exhibit No. 14.3, shows an area of bleeding at the interface between the white and gray matter, but in the immediate vicinity of a tumour. Tumours, and particularly small cell lung tumours, grow rapidly. While they create their own blood supply, they are not particularly good at doing that. When they outgrow their blood supply, the inside of the tumour dies, leaving a characteristic outer ring of live tumour surrounded by an area of necrotic tissue. These show up on CT scans with a characteristic ring-like appearance. Tumours, whether due to outgrowing their blood supply or because of collateral damage they cause to the surrounding tissue, can bleed. When they do, they typically, although not always, bleed inside of the tumourous mass. The section in Exhibit No. 14.3 was near a tumour. Because of this, Dr. Maguire was not prepared to conclude that the bleeding was associated with trauma, although he thought that likely because it did not originate from an area that he would expect it to have originated if it was associated with the tumour. [51] The next section he examined was photographed in Exhibit No. 14.4 and showed an area of very acute and very extensive bleeding outside the blood vessels, close to the internal capsule of the basal ganglia. As with the second section, this bleeding occurred within less than three days of death. There is no tumour in this area. In his opinion, this bleeding could only have been caused by trauma. [52] The section photographed in Exhibit No. 14.5 is of an area of white matter. It shows areas of diffuse vascular damage to vessels travelling in a variety of directions, as well as swollen axons which the doctor described as "classical" in appearance. Again there is no tumour in this area. [53] The next section he examined is photographed in Exhibit No. 14.6 and is also from the white matter. It shows swollen axons surrounded by fluid which gives rise to further swelling in the brain. Not all of the axons are damaged but many are. Again there is no tumour associated with this damage. In his opinion, this damage could only be caused by trauma. [54] The seventh section is photographed in Exhibit No. 14.7. It is from the internal capsule which is beside or near the basal ganglia. Again, there are many swollen axons and damage is not uniform. The areas of swelling along a particular plane indicated to the doctor, when taken in combination with his other findings, that they are the result of trauma, and trauma applied with a particular directional force. [55] After looking at the internal capsule without adding staining to the section, Dr. Maguire applied a stain to highlight the structure of the axon known as the neurofilament. He did this to determine if there were accumulations of this protein. This is part of a chemical reaction which is, in turn, part of the mechanism of injury that damaged axons give rise to. He applied the stain, studied the section, and found accumulations of the protein. It was photographed as Exhibit No. 14.8. [56] He repeated this procedure with the same result in a different area adjacent to the basal ganglia, and that is photographed in Exhibit No. 14.9. [57] The section photographed in Exhibit No. 14.10 is an area of white matter. The section was stained with a different stain designed to highlight a different aspect of the expected chemical reaction characteristic of axonal damage. This area is not associated with tumour. He found the chemicals he expected to find, and he found them to a very extensive degree. [58] The section photographed in Exhibit No. 14.11 is of gray matter in the cerebral cortex. It shows damage to neurons characteristic of hypoxic ischemic injury. This kind of injury may be associated with trauma, but it may also be associated with other things. The important point, from Dr. Maguire's perspective, is that if it is caused by a general lack of oxygen or blood, one would expect to find the damage throughout the brain. That is not what he found. He, therefore, concluded that the damage to axons and blood vessels that he did observe were not secondary to a generalized lack of oxygen or blood, but were rather the result of a hypoxic or ischemic injury secondary to diffuse axonal and vascular injury. [59] As to the mechanism or cause of death, Dr. Maguire's opinion is that the trauma Linda Bridle sustained in the assault caused axonal and vascular damage which led to swelling of her brain, which led to pressure on the midbrain and brain stem, which led to an inability to breath, which caused her death. He accepted that the tumours in her brain may have contributed or played a role in this terminal sequence. Tumours can and often do lead to swelling in the brain. In his opinion, however, the diffuse axonal and vascular injury which he attributed to trauma contributed to her death. In coming to this conclusion, he considered and eliminated all of the other possible explanations for the injury, given Ms. Bridle's history. In particular, he considered the medication she was on, the tumours in her brain, the fact that she may have experienced an epileptic fit, the possibility of a generalized ischemic or hypoxic event, the possibility of stroke or blood clot, and the possibility that she had a compromised ability to clot her blood. [60] His opinion is based on both microscopic studies just referred to, as well as the history and course of her condition as described to him. She was alive, conscious and functioning cognitively at a reasonable level on the evening of July 31st. She experienced trauma which resulted in a sudden loss of consciousness. Over the next 36 hours, her level of consciousness declined further until she died. All of this is consistent with the disease process characteristic of diffuse axonal and vascular injury. Although the axonal and vascular damage was diffuse, its effect on Ms. Bridle would have been much more significant than its effect on a healthy person because of the tumour load in her brain. Her brain, as a consequence, had a markedly reduced ability to cope with yet further mass or further swelling. Dr. Maguire's opinion is and was that the axonal and vascular damage he saw was due to trauma. [61] I found Dr. Maguire to be conservative in his opinions. He was careful to point out areas in which his diagnosis may be attributable to causes other than trauma, for example, tumours or hypoxic damage. He did not rely on evidence of damage in those areas as a result, although he felt it likely they were not associated with the tumours he saw. He impressed me as a scientist interested in understanding the evidence he was presented with, without any preconceived or favoured notion as to where that evidence might take him. It took him to the diagnosis just explained, a diagnosis he reached with a very high degree of confidence. [62] On cross-examination, he was not shaken. Again, this is not due to any dogmatic attachment to his opinion, but rather because he considered the issues raised and explained them in a manner that was consistent with the diagnosis he initially hypothesized. [63] The final area of concern raised by counsel for Mr. Bridle relates to the kind of trauma that Ms. Bridle suffered, simply put, two slaps of moderate force and a fall. Diffuse axonal and vascular injury is typically associated with high speed motor vehicle accidents or falls from great heights, both events that would generate significantly greater forces than Ms. Bridle likely suffered. [64] In this regard, there are three points that I consider significant. First, there are relatively recent studies that suggest, but do not positively conclude, that diffuse axonal and vascular injury can result from assaults. Second, in Dr. Maguire's view, while the degree of force is important, equally important and sometimes more important is the direction of the force. Rotational or lateral forces seem to be more likely to cause the kind of injuries he found in this case. Finally, and importantly, the damage is there to be seen, and Dr. Maguire's evidence on the point stands essentially uncontradicted. [65] I turn now to the evidence of Dr. Falconer. Dr. Falconer is a neurologist, but not a neuropathologist. He has a clinical practice in Kelowna and is obviously very highly qualified. Although neuropathology is not within his area of expertise, I have no doubt that he has some expertise in the field. Similarly, while he is not a radiologist, I accept that in his work he routinely interprets imaging studies often, but not always, in conjunction with a radiologist. That said, he is neither a radiologist nor a neuropatholgist. It is apparent that he disagrees with Dr. Maguire's diagnosis. [66] The trial of this matter began in January of this year. The Crown called and closed its case by January 31, 2007. At that point, counsel for the accused sought an adjournment in order to consult a neuropatholgist with a view to responding to Dr. Maguire's evidence. Evidence of his opinion had been in the accused's possession for a considerable time prior to trial. [67] On cross-examination, Dr. Falconer indicated that it was at his suggestion that the accused should consult with a neuropathologist. [68] The matter was spoken to following the initial portion of the trial first in February and then again on March 15th. On that day, Mr. Johnson advised that he had found an expert, and arrangements were made for the release of the exhibits, and the Crown indicated it would consent to the expert giving evidence by way of video. The matter was adjourned until this week in order to accommodate that expert's schedule. When the matter reconvened, the accused did not call a neuropathologist. [69] In reciting this history, I do not wish to be taken as implying that there is any onus on the accused to do so; clearly there is not. It does, however, point out the limitations on Dr. Falconer's opinions, limitations that he himself recognized. [70] Dr. Falconer conducted a neurological examination of Ms. Bridle in the hospital on August 1, 2004. He reviewed the CT scans and the other medical information available. He found her deeply unconscious, unresponsive to painful stimulus, and with virtually no reflexes. As with Dr. Maguire, he reviewed her blood chemistry and found no abnormalities. He concluded, based on the history, his assessment of her, and his review of the CT scans, that she had suffered a concussion that caused her to lose consciousness. The extent of the metastatic cancer was such that her prognosis, even without the concussion, was bleak, indeed hopeless. She would have died within days or perhaps weeks in any event. The terminal sequence in his opinion was that the tumours, some of which were located very close to the part of the brain that controls breathing, leaked fluid which, in turn, caused swelling, which led to compression of that part of the brain that controls breathing. She stopped breathing and died. He could not say whether the trauma of the assault accelerated her death. As I understand his opinion, it is that she died for reasons unconnected with the assault. [71] The primary reason Dr. Falconer questions the conclusions of Dr. Maguire is that the nature of the assault is inconsistent with the kind of trauma that typically gives rise to diffuse axonal and vascular injury. Although there are reported instances in which assault appears to have caused injury of this kind, I accept that they are not the most common cause. Dr. Falconer, however, does not and cannot dispute the fact that diffuse axonal and vascular injury was present. Microscopically, it is there to be seen. While I understand the reasons for Dr. Falconer's scepticism about the origin of the diffuse axonal and vascular injury, that scepticism does not raise a reasonable doubt that those injuries occurred as a result of trauma. [72] There is one final point raised by counsel for Mr. Bridle. He pointed to Dr. Maguire's evidence to the effect that he was 95 percent certain of his diagnosis. This, it is said, should give rise to a reasonable doubt. I am not persuaded. My impression is that the doctor, no doubt by dint of his experience and training, never expresses an opinion in absolute terms. It is a reflection of the careful and conservative nature of his approach that characterized all of his evidence, as opposed to any expression of real doubt about his diagnosis. Proof beyond a reasonable doubt is not to be equated with proof to an absolute certainty. [73] I am satisfied beyond a reasonable doubt that Ms. Bridle died as a result of diffuse axonal and vascular injury which was caused by the assault. [74] The terminal sequence was that those injuries led to brain swelling, swelling that Ms. Bridle had a markedly reduced capacity to accommodate, and that swelling forced the brain down into the brain stem which compromised her respiration and led to her death. All of this is consistent with the other evidence, specifically, the fact that she was struck and lost consciousness almost immediately, she never regained consciousness, and her level of consciousness declined over time and within the time frame that Dr. Maguire expected as a result of the biochemical reactions triggered by axonal damage. [75] There is no question but that Ms. Bridle's prognosis was bleak, even had she not been assaulted. Her life expectancy was likely weeks, if not days, given the aggressive nature of the metastasized tumours in her brain. [76] I am, however, satisfied that the assault she suffered was both factually and legally causative of her death, in the sense that those concepts are understood and explained in Nette. [77] I find Mr. Bridle guilty of manslaughter. Barrow J.