R. v. D.

2012 BCSC 1563 R. v. D. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D., 2012 BCSC 1563 Date: 20120824 Docket: 56600-2 Registry: Chilliwack Regina v. D.D. Before: The Honourable Mr. Justice Schultes Corrected Judgment: The text of this judgment was corrected at para. 114, on August 26, 2015 Oral Reasons for Judgment Counsel for the Crown: C.M. Lawlor Amicus Curiae: D.L. Nundal Place and Date of Trial: Chilliwack, B.C. October 17-21, 2011 January 9-11, 2012 New Westminster, B.C. April 3, 25 and 26, 2012 Chilliwack, B.C. June 15, 2012 Place and Date of Judgment: Chilliwack, B.C. August 24, 2012 I. INTRODUCTION [1] D.D. is charged with committing the aggravated assault of A.S. in Mission on September 4, 2007, contrary to s. 268(2) of the Criminal Code. [2] In overview, the allegation is that A., then two years and five months old, was left in Mr. D.'s care for about 20 minutes in the early evening of that day, while her mother, Mr. D.'s girlfriend, went to get coffee and ice cream. [3] The Crown relies on a body of circumstantial evidence to support the inference that during this period Mr. D. assaulted A. in some manner, leaving her with a fractured skull and other related injuries. [4] The progress of this case has been somewhat unusual. At the start of the trial, I found that Mr. D. had not been diligent in retaining a new lawyer after the withdrawal of his previous one and that there was no likelihood that he would make any reasonable efforts to that end if he were granted a further adjournment. I therefore denied his adjournment request and required that the trial proceed without counsel. However, given the potential complexity of the medical evidence to be called by the Crown, I appointed amicus curiae to conduct cross-examination of those witnesses on his behalf. [5] As the trial proceeded, I broadened the role of the amicus to include making applications on Mr. D.'s behalf, leading his evidence, and making final submissions, in all cases as though acting on his behalf. [6] Mr. D. does not dispute that he was in charge of A. during the brief period that I have described. Rather, the critical issues in the case are: 1. Whether A. received her injuries during that period; and 2. Whether her injuries are consistent only with having been inflicted by him, rather than being sustained by a fall or some other accidental mishap within the home. II. EVIDENCE A. Background [7] Mr. D. had been in a relationship with A.'s mother, J.H., for about a year before A. was injured. Ms. H. and her daughter lived in a basement suite in a home in Mission that was owned by her stepsister, A.T., and Mrs. T.'s husband P. The T.s lived upstairs. [8] It is common ground that Mr. D. had actually lived in the suite with Ms. H. and A. previously but had moved out several months before September of 2007. However, his relationship with Ms. H. continued and he was frequently at the suite. [9] The suite consisted of two bedrooms, a bathroom, a kitchen/dining area, and a living room. In his evidence, Mr. T. referred to "all three bedrooms" of the suite when discussing renovations, but only two are depicted in the photographs and otherwise referred to in the evidence, so nothing turns on this inconsistency. [10] Entrance from the outside of the suite was by means of a doorway to the carport area of the house. The door in place there, which had been obtained by Mr. D., had a window in it. Access to the upstairs of the house was by an internal stairway with a door at the bottom that was usually kept closed but unlocked. Ms. H. was allowed access to the laundry facilities upstairs at designated times. [11] The T.s had put laminate flooring in the suite when they renovated it, except for the kitchen and bathroom, which still had the original linoleum. Aside from its underlay, the laminate floor was sitting on concrete. [12] Mrs. T. testified that there was virtually no soundproofing between the upper and lower levels of the house and that from upstairs one could hear "pretty much anything". She gave examples of being able to hear cell phones ringing, coins dropping, and conversations in the suite below. [13] It is clear from the evidence that A. was generally a normal, healthy child before the alleged assault. She had passed her various developmental milestones in the usual way and there were no particular health concerns noted by her family physician, Dr. Scaman, who had treated her since her birth. The last time he saw her before she was injured was on August 10, 2007. [14] A.'s only unusual behaviour was past episodes of holding her breath until she turned blue during tantrums, which her mother said she had done about five times between six months of age and the day she was injured. Her grandmother, D.S., had experienced two such incidents according to her evidence and was so surprised by the first one that she briefly performed artificial respiration on A. Dr. Scaman saw A. in July of 2006, according to his records, for this kind of complaint and determined that there was nothing abnormal going on underlying it. B. The Events of September 4, 2007 [15] As of September 4, Ms. H. was on social assistance and did not work outside the home. She testified that she stayed with A. for most of that day. Mr. D. was working. A. went down in her crib for a nap at about 1:00 p.m. and while she was napping, Ms. H. had to go out to get her rent money. She asked Mr. T., whose home office was right above A.'s bedroom, to listen out for her and he agreed. [16] She was gone for about 15 minutes and when she returned, A. was still sleeping. She said that when she finally got A. up from her nap at about 3:45 p.m. or 4:00 p.m., A.'s room smelled like "throw up". However, A. and her bedclothes were dry, so Ms. H. assumed that the smell was from something that had happened earlier. [17] The T.s testified about their interactions with Ms. H. and A. that afternoon. In addition to confirming that he listened out for A. as requested while Ms. H. was getting the rent money, Mr. T. said that she and A. later came upstairs to do laundry and that he had some interaction with A. for 20 minutes to half an hour. He gave her some of his French fries and let her pretend to play a game on the computer. He did not observe A. having any difficulties or notice any bruising to her head or face. [18] Mrs. T. said she arrived home from work at about 4:30 p.m. and also had some interaction with A. for half an hour to an hour while Ms. H. was doing laundry. Like her husband, Mrs. T. observed nothing unusual about A. She did not believe that her husband was there when she got home from work and he did not refer to his wife in his description of contact with A., so it appears that they are referring to separate incidents of contact. [19] Ms. H. did not refer in her evidence to having gone upstairs to do laundry and met with the T.s, although she was asked in her direct evidence whether she had contact with anyone else in the house after her daughter woke up, so I infer that she may have forgotten this incident. [20] Ms. H. said that Mr. D. came home from work at about 6:00 p.m. She and A. were making dinner. She told A. that if she ate all of her noodles, she would get her an ice cream. She took A. out of her high chair where she had been eating and attempted to hand her to Mr. D. -- asking him if he would mind watching her for a few minutes while she went out. She asked him if he wanted her to get him anything and he asked for a coffee from Tim Horton's. A. did not want to let go of her. She kept her arms and legs wrapped around Ms. H., squeezing and saying "Mommy, don't go". It was typical of A. not to want to leave her mother's presence. [21] Ms. H. asked Mr. D. to take A. from her. He did that by removing A.'s arms from her and then grabbing A. around the waist. Ms. H. did not observe any forcefulness or aggression accompanying Mr. D.'s removal of A.'s hold. After he took her, A. was still crying and wanting her mother. [22] Ms. H. said that she waited a couple of minutes after leaving the suite. She looked back and saw, through the window on the suite door, that Mr. D. was holding A., who seemed to be okay. [23] At this point in the evening, A. was wearing a one-piece short-sleeved garment without legs, which Ms. H. and Mr. D. described as a "onesie". The sleeves were the length of a T-shirt or slightly shorter. According to Ms. H., A. had no bruises to her neck or arm areas when she left her with Mr. D. [24] Once in the vehicle, she phoned back into the house and spoke to Mr. D. He told her that A. was okay, that she was helping him clean up, and that she had stopped crying. She heard A. in the background during this call. [25] She first drove to Tim Horton's and purchased a coffee for Mr. D. there. She had a second phone conversation with him. She could not recall which one of them had phoned the other in this conversation. Originally in her evidence she thought it had taken place at or on her way to the Dairy Queen to purchase ice cream after Tim Horton's, but after identifying herself in a security photo from Tim Horton's that was apparently taken that evening and that depicts her talking on the cell phone, she agreed with the suggestion that this could have depicted the second call. [26] In that call, Mr. D. said that A. was fine, that he had just checked on her and she was watching a movie or TV. She could not hear A. in the background, so things seemed fine to her. [27] These calls amounted to two minutes or more of the time that she was away from home. In cross-examination she said that there had been two or three calls, but in her evidence actually described only the two that I have summarized. [28] She was gone for 20 minutes "at the most". She returned at about 8:20 p.m. She found Mr. D. cleaning his tools in the bathroom and laying them out on a towel by the door. She gave him his coffee, then removed A.'s ice cream sundae from the container and went into the living room to give it to her. She was not sure if Mr. D. followed her into the living room immediately. [29] A. was lying on the couch on a pillow. She told A. she was home, but contrary to her daughter's usual enthusiastic behaviour upon her return, there was no response. [30] By then Mr. D. was present in the room. He was by the top part of A.'s body and Ms. H. was at the bottom part. She said that he shook or nudged A. and said, "Your mom's here. Wake up". There was no response. She also nudged her daughter. [31] A.'s head tilted and her eyes opened slightly. Ms. H. could see that they were rolling back in her head, showing only white, and that some foam was coming out of the side of A.'s mouth. [32] She told Mr. D. that something was wrong and that they had to take A. to the hospital. He picked A. up and her body was completely limp, as though she was dead. [33] Mr. D. was wearing boxer shorts and initially said that he wanted to get dressed first, but she told him that they needed to go right away. [34] While they were in the kitchen, A. threw up what appeared to be her dinner. [35] Ms. H. drove at high speed to the hospital. Mr. D. was holding A. On the way she phoned her mother and expressed the belief that A. was dying. Mr. D. advised Ms. H. that A. was breathing, but faintly. [36] They arrived at Mission Memorial Hospital about 8:30 p.m. Mr. D. ran in with A. Ms. H. followed but was initially so hysterical that she was not permitted to see A. in the treating area until she had calmed down. C. Medical Evidence [37] Once at the hospital and later that evening when she was transported to Children's Hospital in Vancouver, A. came under the care of several medical professionals, who assessed and treated her injuries and in some cases offered opinions about their likely causes. Some of these caregivers are also said to have received statements from Mr. D. about what had happened to A. before her condition was discovered. 1. Lorraine Murdoch - Nurse at Mission Hospital [38] Ms. Murdoch completed an emergency assessment form for A. and received information about her presenting complaint. She could not remember by the time of trial who had given her this information, but it was from whoever had carried A. in (which according to Ms. H. was Mr. D.). As I will describe in a moment, the emergency physician who treated A. made observations to the same effect. [39] Ms. Murdoch's notes, which refreshed her memory, made reference to a statement from the "boyfriend", which was of course Mr. D.'s role in relation to the mother. Ms. Murdoch also wrote "D.D." on the top of the form, although she could not recall at trial in what connection she had done this. [40] The relevant statement in Ms. Murdoch's notes was as follows: Boyfriend states the child had fallen (unwitnessed) then seemed okay. Sat on a couch. Mom came home, found child breathing but unresponsive. [41] Ms. Murdoch further qualified her evidence by advising that she was not sure if the person who had described the unwitnessed fall was the same person who had carried A. in, but in all of the circumstances, particularly in light of the attribution of the statement to "the boyfriend" in the notes, I draw the inference that the statement came to her from Mr. D. 2. Dr. Peter Frew - Emergency Physician at Mission Hospital [42] Dr. Frew assessed A. after she was admitted. In addition to giving general narrative of his dealings with her, he was qualified as an expert in the area of medical science, including the nature and causes of injuries, and was permitted to give his opinions in those areas. [43] He observed Mr. D. carrying A. from the waiting area to the resuscitation room. He spoke to Mr. D. in order to obtain a history that would allow him to treat her. He received the following information: Mr. D. indicated that he was unaware that the child was in distress; that when the child's mother had returned home, the child's mother had in fact found the child on the couch unresponsive and that he was unaware of the reason for the child's distress. He described a temper tantrum approximately ten minutes prior to this when the child's mother had left the home and went on to say that the child had fallen to the floor but had cried immediately and gotten up and was in good condition at that time. I further enquired as to the type of flooring the child may have fallen on and got the impression that this was possibly between a hard surface and a carpeted surface, so somewhat unsure as to the exact nature of the surface. Further detail was that the child had vomited in the vehicle on the way to the emergency room. Q. All right. Did Mr. D. give you any information as to what if anything he had done when the child fell or -- A. My recollection just includes comforting the child, taking the child to the couch, and trying to settle the child down on the couch. Q. At that point did he give any indication as to how much time elapsed between this incident and when the mother arrived home? A. My impression again was approximately ten minutes. [44] In cross-examination, Dr. Frew added that Mr. D. said that he had heard A. fall to the floor from a distance of a few feet away and that he had helped her to the couch in some way. All of the information from Mr. D. was obtained during the first 45 minutes of Dr. Frew's dealings with A. [45] Dr. Frew observed A. to be in a depressed state of consciousness, with her eyes open but staring vacantly, vocalizing by whimpering, and responding to stimulation by withdrawal. Her state of consciousness fluctuated throughout the evening, deteriorating from the initial observation and then eventually improving to a point where she could utter some words and had some spontaneous movement. [46] A.'s blood pressure was initially elevated, which can be an indication of a stress having been placed on her. Her white blood cell count and glucose levels were also elevated. These similarly can be signs of stress on the body. Elevated white blood counts can also result from a seizure, but while Dr. Frew could not rule one out, he saw no evidence that A. had suffered one. [47] He found injuries in his examination of A. She had a large bruise, 10 centimetres by 10 centimetres, in the occipital area at the back of her skull. At the back of her head he could feel a soft swelling filled with liquid. He also noted bruises to her right arm and elbow and to the right side of her neck. The bruises to the right arm wrapped around the arm "at a number of levels". To him they had the appearance of a "hand grasp". His impression was the bruises were recent, although he could not determine the time of their infliction with any degree of accuracy. There was a scrape at the tip of the elbow that seemed a few days old. [48] He did not observe a bruise over A.'s right eye that appears in photos that were taken of her later. [49] He agreed with the suggestion that Mr. D. did not seem to be aware of the existence of the head injury and that it would not have been immediately visible without further examination. [50] His initial diagnosis was that the extent of the injuries seemed to be inconsistent with a simple fall in the home, although he agreed that more serious neurological events can result from a minor fall. In his experience however, children do not generally injure themselves in this way. Consequently, the mechanism of injury was unclear to him. This raised a concern about the possibility of a non-accidental injury. He contacted the after-hours social worker at the Ministry of Children and Family to express his concern. [51] He could not state categorically that the recipient of such an injury would immediately lose consciousness. While normally such a blow would lead to a loss of consciousness, followed by gradual improvement, it is possible instead for there to be a bleed inside the skull that would lead to a reduced level of consciousness later. [52] He agreed that Mr. D.'s account of A. getting up from the fall on her own and his helping her to a couch could be consistent with the bleed scenario, but he did not believe that that would be the usual sequence of an injury of this kind because it would take a few hours for the swelling to develop from a bleed, in contrast to the "instantaneous shock wave of the fall". [53] Dr. Frew discussed A.'s condition with a doctor at Children's Hospital and it was decided that she would be transferred there by a special team. The transport team arrived at 10:15 p.m. that evening. 3. Dr. Denton Hirsch - Transport Physician [54] Dr. Hirsch accompanied A. during her transfer to Children's Hospital. He also took a detailed history from individuals he described as "the mother and the mother's boyfriend". This history included a portion that described A.'s activities after the mother left -- running around the house and crying and looking for her mother. This was followed by the boyfriend suggesting that A. stood on the couch and watched TV. There was no mention of Mr. D. hearing or otherwise being aware of the child falling, as in the statements to Nurse Murdoch and Dr. Frew. [55] Dr. Hirsch's notes, which he relied on to give his evidence, do not draw any distinction between what he was told by Ms. H. and by Mr. D. Although critical portions refer to events that occur after she was absent from the suite, which leads to the potential inference that they were narrated to him by Mr. D., in the absence of some reliable basis to exclude the possibility that she was relating information that she had previously received, and without knowing the extent to which he may have adopted anything said by Ms. H. in Dr. Hirsch's presence, I do not feel comfortable relying on any portion of Dr. Hirsch's evidence as representing a statement by Mr. D. about the incident. 4. Dr. Margaret Colborne - Emergency Paediatrician [56] After A. arrived at Children's Hospital, her case was referred by the original attending emergency physician to the Child Protection Service Unit. This is a multi-disciplinary team at the hospital that deals with allegations of child mistreatment, including physical abuse. [57] Dr. Colborne, a member of that unit, attended after A. had been seen by another doctor and then conducted her own examination of A. [58] At trial Dr. Colborne was qualified as an expert witness "to give interpretive evidence on medical science including the nature and causes of injuries to children". While she advised that diagnosis of child abuse is a separate area of specialty from her training in paediatric emergency medicine, one which is not yet recognized in Canada as a sub-specialty by the Royal College of Physicians and Surgeons, it emerged that Dr. Colborne's opinions were based on an extensive knowledge and review of the literature in this growing area of medical study. Given that grounding, I had no concerns about the absence of formal recognition of her sub-specialty in assessing the weight to be given to her opinions. [59] Like the other physicians, Dr. Colborne also obtained an initial history from Ms. H. and Mr. D. As in the account to Dr. Hirsch, this version of events had A. becoming upset after her mother's departure and Mr. D. putting her in front of the television. However, also as in the account to Dr. Hirsch, there is no differentiation between what was said by each speaker, so once again I do not feel comfortable attributing any of these statements to Mr. D. as admissions in the trial. [60] Dr. Colborne's examination of A. revealed the following: · a marked, swollen, bruised area behind the head extending from above and behind the right ear to behind the left ear, which she described as "a boggy area where her scalp sort of lifted away from the skull bone"; · a large 8 x 6 centimetre area of blue-red purplish tinged bruising behind the right ear; · a smaller 3 x 2 centimetre area of bruising behind the left ear; · petechial (that is, resulting from broken capillaries) bruises -- a small area on the right side of her neck and a bruise below the shoulder blade on the right side of her back; · an extensive pattern of bruising to the upper right arm consisting of (from the highest point downwards) a red linear mark that appeared to be "from the edge of something", a 3 x 2 centimetre area of purple bruising at the front and side of the arm, a separate area of equal size at the back of the arm, and a 2 x 2 centimetre bruise at the inside of the elbow. [61] Acknowledging that dating bruises cannot be an exact science and that it is also not possible to say that all of these bruises were inflicted at the same time, Dr. Colborne described them as "recent", meaning in her terminology that they had occurred within the previous week. [62] While she acknowledged that it is possible that the bruises in the area of the ears were caused by blood tracking from the blood vessels under the skull (which was likely the case for the swelling to A.'s eyes that developed several days later) she said that such bruising is not usually seen within 12 hours of the injury and in any case would not have caused the bruising to the neck that she observed. [63] Dr. Colborne later reviewed the results of x-rays taken by Mission Hospital and a CT scan performed at Children's Hospital. I will have more to say about the review of those materials by the paediatric neuroradiologist, Dr. Poskitt, later in these reasons. [64] Dr. Colborne noted from this material that A. had a right occipital skull fracture (to the back of her head on the right side). The CT scan also revealed that she had haemorrhages or bleeds on both sides in the subdural space, which is between the linings underneath the skull but outside the brain. In addition, A.'s brain swelled in the days following her admission, more on the right side, although fortunately never to an extent that neurosurgery was required. [65] She also reviewed the results of a referral to Dr. Christopher Lyons, Head of Ophthalmology at Children's Hospital, whose evidence I will also be discussing in more detail. According to her evidence, she was advised that Dr. Lyons found extensive haemorrhages involving many layers of the retina in A.'s right eye. Dr. Colborne testified that these kinds of haemorrhages can be found when children have been subjected to very severe acceleration/deceleration types of forces. [66] She was asked her opinion about the force that would be required to inflict this kind of injury and how severe an injury it would be to see in a child of A.'s age. She advised that there is usually a significant history associated with such an injury, such as children who are not restrained and then get thrown around inside a vehicle during a high-speed motor vehicle accident, or who fall from a second-storey window onto asphalt. Crush injuries from large heavy objects falling on children can also cause skull fractures, but then there are usually not the types of retinal haemorrhages that come with acceleration/deceleration forces. [67] According to Dr. Colborne, children of A.'s age fall frequently, but generally do not sustain any injury. Goose eggs (minor swelling to the forehead) are sometimes seen. The literature is consistent that for falls less than four to eight feet in height, only about one percent of children will fracture their skulls, as A. did. A much smaller percentage will have bleeding under the fracture or around the brain and a much smaller percentage still will have a brain swelling. In her view, "it just doesn't happen from minor falls". She said that a fall sufficient to cause such injuries would leave a child either unconscious, or lying moaning and crying. A child would not be able to get up and then settle herself on a couch. [68] Based on all of these injuries, both the ones she has observed and the information she received from the other specialists, Dr. Colborne came to the opinion that they had been inflicted on A. rather than occurring accidentally -- probably by her being grabbed by the arm, shaken violently, and then banged or thrown into something. The collision with an object after being banged or thrown would account for the blunt force trauma that was observed. [69] In cross-examination, she elaborated that A. was likely hit more than once in the head area in order to cause the pattern of bruising to the back, and that the skull fracture was not where these areas of bruising were. [70] She also offered an opinion about the time within which the head injury would have been inflicted. The most important factor in this opinion was the time when A. was last known to be neurologically well. Responding to a hypothetical scenario based on the evidence of Ms. H. about A.'s activities in the home just before she left to get the ice cream and coffee, Dr. Colborne said that if A. was talking and interacting, had eaten her dinner, and otherwise appeared neurologically normal as described in that account of events, then she had not yet sustained the head injury. [71] It was also likely, according to Dr. Colborne, based on the level of consciousness that A. presented with at Mission Hospital, as well as the acute bruising and swelling to her head, that the injury was inflicted within a few hours of her initial attendance at the hospital. She said that this is not as reliable a measure as the last instance of the child's neurological wellness. [72] Dr. Colborne agreed on cross-examination with the suggestion, which was based on the evidence of Dr. Poskitt, that the injury most likely occurred between 2:00 p.m. and 8:30 p.m., but she emphasized that A. would not have looked normal at 8:00 as described by her mother if the injury had occurred earlier. As I will discuss, this suggestion was a slight misstatement of Dr. Poskitt's opinion, but nothing ultimately turns on Dr. Colborne's acceptance of it in the incorrectly modified form. [73] Dr. Colborne also addressed the possibility of accidental causes of the injury. While a fall from a height of seven to eight feet could cause a skull fracture, it would not account for the bruising to the arm. Conversely, if the arm had been the primary point of impact in such a fall, then it would not account for the extensive head injuries. Such a fall also could not produce the haemorrhaging to the right eye. [74] Dr. Colborne noted that seven to eight feet is close to ceiling height in a normal residence and it is questionable whether a child of A.'s age could have reached such a height without being observed. [75] If such a fall involving direct impact to the back of the head had been sustained, A. would not have been able to walk back to the couch on her own, in Dr. Colborne's opinion. She would have been unconscious, or moaning and semi-conscious. She would not have appeared neurologically normal. [76] Dr. Colborne engaged in the same exercise for hypothetical suggestions based on falls from A.'s crib, her dresser, the ledge behind the couch in the living room, and, based on a suggestion on cross-examination, from a rocking chair in the home. In no case, in her opinion, would a fall from any of those objects have produced this complete constellation of injuries, especially not the retinal haemorrhages. [77] She could find nothing else in the photos taken at the residence by the RCMP that a fall from could produce these injuries. [78] She emphasized that the necessary forces involved are severe, such as those that result from being ejected from a vehicle, falling down a flight of stairs in a child's walker (which is why they are now banned), or having a parent fall down a flight of stairs while carrying the child and landing on top of them. As she summarized, "They are not the kind of scenarios that two-year-olds can put themselves in". [79] Dr. Colborne referred to cases that her unit has encountered in which similar injuries have been observed and were believed to have been intentionally inflicted. However, in the absence of a reliable baseline confirmation of the intentional aspect of these similar injuries, it begs the question to compare them to A.'s injuries and their causes and so I will not be relying on that aspect of Dr. Colborne's opinion. [80] Dr. Colborne also noted that Mr. D.'s removal of A. from her mother would not usually be expected to leave this degree of bruising to the child's arms. 5. Dr. Ken Poskitt - Paediatric Neuroradiologist [81] Dr. Poskitt based his opinions on his review of x-rays, CT scans and MRIs that were taken of A. during her care at the two hospitals. He was qualified to give interpretive evidence on medical science, in his case including the nature and causes of injuries and the review of radiological reports. [82] He found no evidence of pre-existing injury to A. besides the skull fracture. Earlier healed injuries are often found in cases of serial child abuse. [83] A CT scan was taken of A. at Children's Hospital at 2:30 a.m. on September 5. The skull fracture could easily be identified in it. It is a vertically oriented fracture in the right occipital region -- the bone running behind the ears. There was soft tissue swelling associated with it, as other medical professionals have noted, but Dr. Poskitt said it is not useful in dating the fracture. [84] He also observed recent blood inside the skull, but outside the brain, in the subdural location. It was located in the structures between the right and left hemispheres of the brain (the falx) and between the upper and lower parts of the brain (the tentorium). This blood could be up to five to seven days old but its recency cannot be established beyond that. [85] There was blood on the surface of the brain, but still outside it, in the parietal region. It was coating both sides of the hemispheres of the brain, more on the right than the left, but in similar amounts. [86] The presence of the blood in the falx and tentorium is, in Dr. Poskitt's opinion, typical of extensive trauma throughout the brain. It is not typical of a simple impact, in which one falls and hits one's head and the blood is underneath the area of impact. The distribution of blood in this manner was in his experience "extraordinarily uncommon". [87] Normally, when there is a blow to the head, the bleeding is seen at the area of impact, because that is where the highest forces are. Blood along the falx and tentorium are in his opinion "quite stereotypical of someone who has been shaken". [88] What he is able to conclude is that this child had been harmed, and it was by more than a simple blow to the head. [89] It is possible that a fall of three to six feet could have produced these injuries, but in his view that would have been extraordinarily unlikely. What is most difficult to explain by a fall, he testified, is this distribution of the blood elsewhere in the brain. [90] In cross-examination, Dr. Poskitt elaborated that the statistics say that there is a one in a million chance that a fall of six feet could produce such a distribution of injuries. Metabolic conditions are not a reasonable explanation for the bleeding observed and would not in any case explain the fracture. He said that he could understand these results if the child had fallen over a 40-foot cliff somehow, or was in a massive car accident, but there were none of the other associated broken bones that he would expect to see with such an injury, and the available history contained no such event. He elaborated in cross-examination that "any severe form of trauma where the brain is subjected throughout its extent to very high forces could produce this distribution of blood throughout the brain". [91] In the September 5 CT scan there was no indication of oedema (increased water within the brain itself). Oedema does not usually appear in the first 24 hours after an injury and it reaches its peak by 72 hours. This makes its presence very useful in dating injuries when there are CT scans available within those time periods. [92] A second CT scan was performed on A. on September 7, 61 hours after the first one. Oedema was now clearly visible in her brain. [93] An MRI scan was also performed at the same time as the second CT. A particular sequence called diffusion weighted imaging was run, which can show the presence of more water inside cells than there should be. That is called restricted diffusion, and it is one of the hallmarks of cell death. Its presence reveals the extent of damage to the brain in a much more subtle way than can be shown in a CT scan. [94] Such restricted diffusion, or indication of cell death, reaches its peak three days after an injury and remains for five to seven days before disappearing. The MRI scan found extensive restricted diffusion in both hemispheres of the brain, again more on the right than the left. As in the case of blood along the falx and tentorium, the location of this restricted diffusion away from the point of the fracture is further evidence of a "diffuse extensive injury", by which I infer that he means both trauma and shaking-related injuries. [95] Based on these results, Dr. Poskitt concluded that all of the injuries noted could be explained by a single event. It occurred between 2:30 a.m. on September 4 (24 hours before the first CT scan) and the time when A. came to Mission Hospital, which he took as 9:00 p.m. (although the evidence is that it was somewhat earlier). [96] The injury could not have occurred before that period because if it had Dr. Poskitt would have seen oedema, which only appears after 24 hours, in the first CT scan. [97] He said that if he were to play the "intellectual medical game" as opposed to the "court game", on balance his "best guess" as to the time of injury would have been between noon and 2:00 p.m. on the 4th, because of the amount of swelling over the skull fractures that is visible in the first CT scan and the fact that the sutures of A.'s child's skull show signs of beginning to open up under pressure. He was careful to say, however, that he was not suggesting that the injury could not have been inflicted, for example, between 11:30 a.m. and 3:00 p.m. [98] In cross-examination, he further explained that there was nothing in the imaging that could tell him whether any particular time after 2:30 a.m. on the 4th was more likely to have been when the injury occurred. Nor could he tell whether the event occurred 15 or 20 minutes before she arrived at the hospital or she became symptomatic a couple of hours after the event. [99] He agreed that it was possible for A. not to have been immediately unconscious after the injury and for her to have walked around performed such acts as getting onto a couch. [100] In his direct evidence he had said that he would not have been surprised if A. was unwell after the accident but that in the first few hours she "didn't look bad at all". However, he could not tell with any certainty what she would have looked like after the accident and said that in his experience the variation is astounding. 6. Dr. Christopher Lyons - Paediatric Ophthalmologist [101] Dr. Lyons examined A. on the afternoon of September 5. Using an instrument called an indirect ophthalmoscope, he found several haemorrhages throughout her retina in the right eye -- in front of it, in the surface layer and through the deeper tissues extending quite far to the back of the eye. [102] In his opinion, these injuries were consistent with a very severe acceleration/deceleration injury. He said that this genesis of retinal haemorrhages is well accepted in the literature. [103] Aside from abusive head trauma cases, he has seen injuries of this kind from a very severe fall, for example from two floors down onto concrete, or from a very severe motor vehicle accident. Certain conditions that inhibit clotting could also cause haemorrhages of this kind. [104] A fall from 53 inches or less would be very unlikely to produce them. The same would be true of a fall from a child's standing height or from crawling over a barrier of her crib at a height of four to six feet, which were suggested in cross-examination. [105] If these injuries were inflicted within a house, the child would have to have been thrown in some manner in order to produce them, according to Dr. Lyons. There would need to be both an impact, which would cause a fracture to the skull, and the acceleration/deceleration forces, which would cause the retinal haemorrhages. [106] Overall, he said there was a mismatch in the medical history, which he understood to have involved a fall from a couch (mistakenly according to the other evidence) and what he observed. [107] Dr. Lyons could not explain why the injuries were to the right eye only, but wondered if there had been some direct impact to that eye. However, even though there was severe swelling to that eyelid (which had not yet appeared at the time of Dr. Colborne's involvement) there was no associated injury to the outer eye, so he agreed that it is possible that the swelling could have been caused by blood tracking from the skull fracture. D. A.'s Post-Injury Progress [108] A. was eventually discharged from Children's Hospital to attend Sunny Hill Hospital. There she underwent extensive therapy for her brain injury to relearn basic skills such as crawling and walking. The therapy appears largely to have succeeded. [109] She was seven years old at the time of trial, and was described by her mother as doing well in school and generally appearing normal, although to her mother's experienced eye there appear to be some minor difficulties with coordination that manifest themselves when A. engages in physical activities such as dancing. [110] Dr. Colborne explained that with this kind of injury there may also be more subtle learning or behavioural issues that arise throughout the child's life. E. Evidence that Could Be Inconsistent with an Assault on A. by Mr. D. [111] Ms. H. did not notice any injuries to A.'s arm when they were still at her suite, although she conceded that she was not moving A.'s arms around to look once she discovered her unconscious. At Children's Hospital she noticed what looked like fingers, "or I don't know" on A.'s arm. At one point she testified that she had attempted to match Mr. D.'s fingers to the bruises, although she did not go on in her evidence to explain the result of the comparison. [112] There was evidence from her mother that A. was fond of climbing. She had previously climbed a cat house structure, which is depicted in the photos of the living room, and had fallen once before. After indicating that A. could not climb into her crib and that she did not know if she could climb out, she modified her evidence in cross-examination to explain that A. was capable of climbing into the crib and did so "on occasion". She was not aware of any falls by A. on the 4th and never left her alone that day, except during the brief departure to get the rent and when A. was in Mr. D.'s care. [113] Neither of the T.s heard anything from the suite that could correspond to an assault that evening. Mrs. T. was home throughout the evening, except for going out briefly to pick up Chinese food at 9:30 p.m. She was actually not aware that anything had happened to A. until her husband phoned her the next day. After he last saw her that day at 5:30 p.m. or 6:00 p.m., Mr. T. only heard what he described as normal crying, of the kind that A. engaged in when her mother would go out of the room, lasting only five to ten seconds. [114] Ms. H. described discussing Mr. D.'s role in what happened to A. with him. When she first learned that A. had a skull fracture at the hospital, she asked Mr. D. what happened and his reply was, "I don't know. J., I love you. I love A. I would never hurt you guys. I don't know". F. Statements by Mr. D. to the Police [115] The RCMP investigators took a statement from Mr. D. in the early morning hours of September 5 at Children's Hospital. It was conceded to be voluntary and was placed in evidence as part of the Crown's case. A portion of a second statement which was taken from Mr. D. following his arrest for this offence on October 10, 2007 was also proven voluntary, but was only used for the purpose of cross-examining Mr. D. when he gave evidence and was not part of the Crown's case. [116] In his September statement, Mr. D. denied any assault on A. He said that he had taken A. in his arms from Ms. H., at Ms. H.'s request, when she went to get ice cream. [117] After she left he still had A. in his arms. He showed her through the front door window that her mother had gone and then got her to help him put away the dishes and other items from dinner. This caused her to calm down but she was still "freaking out a little bit", he said. [118] She was fine for a couple of minutes and then was walking around, asking for her mother and getting upset again. He told her that her mom would be back in a little bit, and then brought in two buckets of tools in from the carport to wash in the bathroom. [119] A. thought her mom was back when he opened and closed the door and was "kind of upset". He saw her walking in the hallway between the bedroom and the living room. He suggested that she go into the living room and watch TV and she did that. [120] At one point, he went to look at her and she was fine, watching TV, leaning against a pillow sitting up. It was not a children's show that she was watching. [121] Ms. H. came home a few minutes later, he told the police. The two of them went into the living room at the same time and A. was "just laying there". She was "kind of like sleeping" and he tried to wake her up. They then went to the hospital as Ms. H. described. [122] Mr. D. described A. in that first statement as a frequent climber of various objects in the house, including her mother's bed, the cat house, and the ledge running around the living room. G. Forensic Examination of the Suite [123] With Ms. H.'s permission, the RCMP examined her suite on September 5. In addition to taking the photos that were placed in evidence, they took measurements of the heights of various items of furniture within it. [124] They also took a swab from a mark in the hallway on the wall between the master bedroom and the living room. It appeared to Corporal Krause (the Forensic Identification Officer whose evidence from the preliminary inquiry was admitted on the trial) to be blood, and it tested positive for the presence of blood using a presumptive testing substance called a hemastix. It looks from the photos in the evidence to be about two feet off the floor. An analysis by the RCMP Forensic Lab found no DNA on the swab. [125] Given the lack of forensic support for Corporal Krause's observation, I consider this evidence to be a potentially highly prejudicial and misleading red herring and will not be considering it in reaching my decision in this case. Crown counsel quite properly did not press it as an item of evidence on which a conviction should rest. [126] Of actual relevance, tools were located in the bathroom sink and on a towel outside the bathroom door (and are depicted in the photos), as described by Mr. D. in his statement to the police. H. Mr. D.'s Evidence [127] Mr. D. described Ms. H. as being prone to violent behaviour towards him when she was drinking alcohol. He said she was also impatient with A. -- frequently grabbing her and yelling at her and blowing up at her verbally. [128] He described A. as a difficult child to manage and said that he took the main role in calming her down during his relationship with Ms. H. [129] He came over on September 4 because of Ms. H.'s repeated begging, including offers to cook his favourite meal. [130] I note that none of these matters were put to Ms. H. during her cross-examination. [131] He testified that when A. was left with him on the evening of September 4, she was "quite cranky and screaming and yelling and in a tantrum". He was holding her and trying to calm her down, but not continuously, through the 20 minutes that Ms. H. was away. The majority of the time, he said, he was outside in the carport cleaning his tools with the door to the suite closed. He was only inside for a minute or so, bringing in those tools that need to be cleaned to the bathroom sink. [132] When he came in, A. was still walking back and forth, quite distressed. Nothing unusual happened when he was observing her. He agreed with the suggestion that he essentially just let her be. He did not hear anything unusual and did not observe A. fall at any point. [133] He noticed that A. was on the couch watching TV about five minutes before Ms. H. returned home. She was lying in the corner of the couch. He did not remember what program she was watching. [134] He once again described A.'s predilection for climbing various objects in the house: the cat house, the eight-inch wide railing around the living room (which he said she would climb up to and then walk around the room on) and a rocking chair, on which she would stand upright. [135] He testified that Ms. H. continued the relationship with him after the injury to A., including bringing A. with her to hang out with him. [136] In cross-examination, Crown counsel put to him what were suggested to be certain inconsistencies between his evidence and his previous statements, and what were said to be illogical aspects of his direct evidence. These included: · the absence in his September 5 statement of any references to Ms. H. begging him to come over, or to her supposed violent behaviour towards him; · the absence of any reference in the September 5 statement to being outside for the bulk of time that Ms. H. was away; · his description in the October statement of picking A. up, putting her down, and then telling her to go watch TV, with no mention of leaving her on her own to deal with a tantrum; · his reference in the October statement to comforting A. on three different occasions, and his overall description in it of essentially spending the whole of the time that Ms. H. was away comforting her child. He clarified further in cross-examination that he had picked A. up mostly in the first five minutes, when she was the most irritated. [137] In his September and October statements he had said that he noticed that A.'s head was "mushy" when he picked her up from the couch. He agreed with the suggestion from Crown counsel that he did not tell Dr. Frew or Ms. H. about this. He explained that he could have noticed it when he picked her up from the couch, in the car on the way to the hospital or when he put her down when they arrived. [138] It was put to him that neither the September nor October statements made any reference to hearing A. fall, as Dr. Frew had recorded at Mission Hospital. In response to this suggestion, he denied having told Dr. Frew that A. actually fell or that he had grabbed her and put her on the couch. He did not recall saying to the doctor that he had led her to the couch and he maintained that there was no fall or thump, as recorded in those statements. He also did not recall speaking to Dr. Colborne at Children's Hospital. [139] It was pointed out to him that there is a conflict between the September and October statements about whether he was also working on the windshield wipers of his vehicle, in addition to cleaning his tools. [140] It was put to him that he was claiming to have gone out to clean his tools, even though A. was hysterical and in the middle of a tantrum from which it took her ten to fifteen minutes to calm down. His response was that she had calmed down to the point that she was not completely hysterical, but was still crying. Based on the way that he brought up his own child, he left her alone to go through the tantrum and then would go back to console her. [141] It was also put to him that he told Ms. H. in the second call that A. was fine even though, since he was out in the carport, he would have no basis to know that. He responded that he would have known that A. was fine and that he could ascertain it visually by looking through the carport door window. III. DISCUSSION [142] Obviously if I accept Mr. D.'s evidence that he did not assault A., or if I am left in a state of reasonable doubt by his evidence, I must find him not guilty. It is only if neither of those situations apply that I then go on to consider whether on the whole of the evidence the Crown has proven his guilt beyond a reasonable doubt. [143] After considering Mr. D.'s evidence in its entirety, I find that I do not believe it and I am not left in any state of reasonable doubt by it. [144] Its critical shortcoming in my assessment is its almost complete inconsistency with the previous accounts that he has given of his contact with A. while she was in his care, whether to the medical personnel who took histories or to the police. [145] His statements to Dr. Frew and Nurse Murdoch, which I find were made by him as they recorded, describe him being aware of A. falling. In the case of the information he gave to Dr. Frew this was as a result of his having heard it. [146] In his evidence at trial that critical awareness vanished, in favour of a claim to have spent the bulk of the time outside the suite in the carport. This is a highly significant change that conflicts with the narrative of his actions in both of his statements to the police. It is particularly at odds with the role that he described for himself in the October statement, in which he claimed that virtually the entire absence of Ms. H. was given over to comforting the child. It is also at odds with his explanation to Ms. H. during their first phone call, which I find took place, that A. was helping him clean up. [147] Aside from its inconsistency with the past narratives, I also find his evidence to represent a fairly clumsy attempt to work backwards from the desired outcome of distancing himself from any potential opportunity for physical contact with A. for the bulk of the time of her mother's absence. The essence of his version of events -- that he would abandon a seriously upset young child to her own devices in order to carry out his own tool cleaning (a matter of no apparent urgency), while at the same time still professing to have dealt with her in accordance with his own best parenting philosophy by letting her work through the tantrum, and yet maintaining sufficient physical proximity with her that he was able to assure her mother that she was all right -- made no sense to me. [148] Turning to the Crown's case, because it is based essentially on circumstantial evidence, I cannot find Mr. D. guilty unless the only rational inference that can be drawn from that circumstantial evidence is his guilt beyond a reasonable doubt. See, for example, R. v. Griffin, 2009 SCC 28. [149] My rejection of his evidence is obviously not positive evidence of his guilt. It is also important to point out that evidence leading to a reasonable doubt need not amount to a coherent alternative theory of how A. came to be injured. A conflict in the evidence, its absence or insufficiency on an important point, or my simple inability to be satisfied of any particular set of events are all sufficient in themselves to lead to a reasonable doubt and an acquittal. [150] As I mentioned at the outset, Mr. D. does not deny the time period that A. was left in his care. The critical questions, as I have also said, are whether the injury to A. occurred during that time and if it did, whether it was inflicted by him, rather than being suffered by accident -- the most likely alternative being a fall from some piece of household furniture. [151] On the timing issue Ms. H.'s evidence is important because, if I accept it, then it is capable, in itself, of ruling out any accidental injury to A. between the outside limit of 2:30 a.m. on September 4 that was identified by Dr. Poskitt to the time when Mr. D. briefly took charge of A. [152] While her evidence was somewhat vague at times, such as about how many times she spoke to Mr. D. by phone while she was out of the suite and in her inability to recall her contact with the T.s earlier in the day, I found Ms. H.'s evidence overall to be credible and reliable on the critical issues relating to her dealings with and observations of A. [153] In addition, she certainly cannot be accused of having any ill will towards Mr. D. that influences her evidence. She continued to see him after the incident, contrary to directions from the Ministry, and conceded very candidly in cross-examination that she still does not really know what happened to A.. [154] In particular, I accept Ms. H.'s evidence that (1) A. was with her throughout the day except for the period that she was napping while Ms. H. went out briefly to get the rent and, more importantly, (2) that A. did not suffer any injury before Mr. D. took over. [155] Although it was only insinuated by Mr. D.'s evidence rather than being put to her directly or made the subject of submissions, I should also say for the sake of clarity that I am convinced by Ms. H.'s evidence that she herself did not assault A. at any point. [156] In view of my findings about the credibility and reliability of Ms. H.'s evidence, the medical evidence about the timing of the injury is much less important than it would otherwise be. However I will also say that, when it is viewed in the overall context of his evidence, Dr. Poskitt's time estimate for the injury of between noon and 2:00 p.m., which could potentially be seen as contradicting the inference that it was inflicted during Mr. D.'s care, was explicitly no more than a guess. Identifying the broader period of between 2:30 a.m. to the arrival at Mission Hospital represents the actual extent to which Dr. Poskitt's evidence can assist on this point. [157] The same is true of his evidence on the question of whether there would have been an immediate loss of consciousness following the injury. In essence, Dr. Poskitt's evidence does no more than state that there was a lot of variability in potential responses to such trauma, including the possibility that A. got up and went to the couch herself after being injured. He cannot say based on the radiological images, which is his area of expertise, how A. responded in this case. [158] In the same way, while Dr. Frew cannot categorically state whether there would have been an immediate loss of consciousness, as opposed to a gradual one because of a bleed, he was adamant that the account provided by Mr. D. of A. getting onto the couch would not be the usual way that this injury would unfold. [159] I accept Dr. Colborne's opinion that, whether or not A. lost consciousness completely after this injury, she would have been semi-conscious and moaning and would, at the very least, not have appeared neurologically normal. [160] I also accept her evidence that the most reliable means of timing this injury is to identify the last time the child appeared neurologically well, and that if A. was behaving in the manner described by her mother before she was left with Mr. D., which I accept she was, then A. had not yet suffered this injury. [161] The more complex and difficult question is whether the Crown has proven beyond a reasonable doubt that Mr. D. inflicted this injury. I am aware that there are certain factors pointing away from that likelihood. [162] As I said, neither of the T.s heard anything that could correspond to an assault and the soundproofing between the upper and lower floors was poor. However, it is also true that Mr. T. heard only what he described as normal crying, rather than the major fuss upon Ms. H.'s departure which undoubtedly occurred here, and that neither of them heard the discovery of A.'s unconscious condition by her mother and the rapid departure from the house, which I infer would also have created some significant noise. The reality is that the T.s' failure to hear anything particular concerning the injury is not necessarily inconsistent with the assault having been committed during Mr. D.'s time in charge of A. [163] Looked at in its totality, the medical expert evidence boils down to asserting the inconsistency of this constellation of particular features of A.'s injuries with a fall from a piece of furniture within the suite. While a skull fracture from a fall is a possibility, albeit a remote one in most scenarios, the essence of the evidence of the medical experts is that no one fall could account for the fracture, the blood within the subdural structure, the diffuse brain injury and, perhaps most importantly, the extensive retinal haemorrhages. This was most succinctly expressed in Dr. Colborne's responses to the various alternative injury scenarios put to her by Crown counsel and the amicus. [164] The medical evidence satisfies me that two distinct forces were at work in the injuries: (1) blunt trauma to the skull, resulting in the fracture, swelling and bruising, possibly from more than one blow; and (2) severe acceleration/deceleration, which is consistent with the child being shaken. [165] It is not necessary for me to go so far as to accept Dr. Colborne's explicit description of how the injuries would have been inflicted. I am in just as good a position to decide whether to draw the inference without that specific assistance. Aside from the catastrophic accidental forces that could produce these injuries, none of which was available within the suite, I find that the only force capable of both banging or striking and accelerating and decelerating A. was a human one. [166] In this regard, while I have kept in mind that the bruises cannot be dated with precision, or even medically associated with the same incident, I accept Ms. H.'s evidence that they were not present previously and find that their discovery contemporaneously with the major injuries and their correspondence to an adult's grip on the child's arm is a further piece of circumstantial evidence of A. being taken hold of physically in the course of the application of force that I have found took place. It is not necessary for me to rely on the opinions of various witnesses that they were hand marks. It is their physical configuration, in light of all the circumstances, that causes me to draw that inference myself. [167] In this process I have also kept in mind the absence of any discernible motive on Mr. D.'s part to assault A. and the fact that he had relatively little at stake in having to look after her for such a short period. I certainly weigh those factors as running counter to an assault by him being the only rational conclusion from the evidence, but it is not necessary, in order to be convinced beyond a reasonable doubt that he assaulted the child, to find that he had a motive for it or that he set out to do it. [168] A. was, on all the evidence, somewhat of a clingy child who clearly put up a significant fuss at her mother's departure. There is objective evidence that Mr. D. was trying to clean his tools, a task that her distress would have distracted him from. An assault would only have required a momentary outburst of anger and loss of control by Mr. D. -- seizing the child in a frustrated attempt to quiet her, shaking her, and causing her to strike a wall or a piece of furniture. He may well not have known at the time of putting her on the couch the full extent, or even any of the extent, of what he had done. Certainly his second conversation with Ms. H. and his attempts to wake A. upon Ms. H.'s return suggest that he was not aware of the extent of damage he had inflicted. [169] What I am satisfied of beyond a reasonable doubt, with particular regard to the inconsistency of A.'s specific constellation of injuries with any other source within the home other than human force, is that (1) she was assaulted and (2) that Mr. D. is the person who assaulted her. When I look at the evidence as whole I find that these are the only rational conclusions to be drawn from it. [170] There is no question that this assault wounded or maimed A., or endangered her life, as required by s. 268(1), and so accordingly I find Mr. D. guilty of aggravated assault. The Honourable Mr. Justice T.A. Schultes