R v SEL, 2012 ABQB 190

Court of Queen ’ s Bench of Alberta Citation: R v SEL, 2012 ABQB 190 Date: 20120323 Docket: 090794306Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - SEL Accused Restriction on Publication: By Court Order, information that may identify the Complainant described in this judgment as SL may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5.

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________

I. Introduction.............................................................................................................. Page: 2 II. Background ........................................................................................................... Page: 3 III. Positions on the Issues.......................................................................................... Page: 4 IV. Review of Evidence............................................................................................... Page: 4 A. Evidence of the Accused - Reliability......................................................

Page: 4 B. Evidence of the Accused - Reasonable Doubt ...................................... Page: 8 C. Overall Assessment of the Evidence....................................................... Page: 8 D. Medical Evidence and Expert Opinion.................................................... Page: 9 1. Dr. Lionel Dibden ...................................................................... Page: 10 2. Dr. James Lewis ........................................................................ Page: 13 3. Dr. Janice J. Ophoven ............................................................. Page: 15 a.

Testimony......................................................................... Page: 15 b. Credibility.......................................................................... Page: 17 c. Residual reliability............................................................ Page: 18 VI. Analysis................................................................................................................. Page: 19 1. Actus Reus ................................................................................... Page: 19 2.

Mens Rea ..................................................................................... Page: 19 3. Wounding...................................................................................... Page: 20 4. Endangerment of Life.................................................................. Page: 20 VI.

Summary............................................................................................................... Page: 23 I. Introduction [ 1 ] Mr. SEL is charged with one count of aggravated assault, contrary to s. 268 of the Criminal Code , R.S.C. 1985, c. C-46. The charge is in connection with events arising in and around June 30, 2009, and relates to the health and status of the infant SL.

The Accused is the biological father of SL and has been a stay at home father for this family of four children since his lay off from regular employment at the end of October, 2008. [ 2 ] The case for the Crown derives principally from the testimony of two experts: Dr. Lewis, a neuro ophthalmologist; and Dr. Dibden, a pediatric specialist. These experts investigated SL in the period following her arrival at hospital on June 30, and concluded that the infant had been subjected to a non-accidental head injury. Much of the court testimony has focused on the scientific and medical

evidence that supports or contradicts the risk that injury may occur to a very young child whose head undergoes rapid acceleration/deceleration rotation movement. This kind of injury is commonly referred to as Abusive Head Trauma (formerly known as Shaken Baby Syndrome), but can also extend to other kinds of motions and impacts. [ 3 ] I will, of course, address in some detail the medical evidence including the expert testimony of Defence witness Dr. Ophaven. In brief, she takes the position that the alleged tell-tale physical indicia of abusive head trauma can have mundane and innocent causes.

Consequently, some children have been misidentified as being injured by adult misconduct. Regrettably, the controversy in this area has protracted the trial and a large portion of my reasons are dedicated to sorting out the consequences derived from rather polarized perspectives. [ 4 ] However, it is critical to reinforce that the essential role of the judiciary under the criminal law is not to measure competing theories of medicine per se but to weigh the evidence provided against the onus on the Crown to prove the commission of a crime beyond a reasonable doubt.

A significant amount of the evidence is not controverted and provides important context to my determination of the fundamental matter of guilt or innocence. So, I will start there. II. Background [ 5 ] By way of general background, the Accused married the mother of SL in 2008. SL is their second child, born late January, 2009. The parents were aware from earlier amniocentesis that SL would be born with an aberrant chromosomal makeup, possessing three rather than the usual two copies of chromosome number 21.

This condition, Trisomy 21, more commonly known as Down Syndrome, is associated with a specific set of physical characteristics and cognitive impairments. With knowledge of the challenges, her parents chose to carry the infant to term to be raised as part of the family. [ 6 ] Delivery was some four weeks prior to the due date. SL weighed just over 4 ½ pounds at birth. She had one particularly significant anatomical anomaly, a ventricular septal defect ( “ VSD ” ).

A VSD is an opening between the left and right halves of the heart which causes abnormal blood flow between the body and lung circuits of the circulatory system. SL ’ s VSD condition was serious and she was scheduled to have surgery to correct that abnormality in mid-July 2009. [ 7 ] The incident giving rise to these charges is alleged to have occurred about 8:30 a.m. on June 30, 2009 at the family ’ s residence in North Edmonton. The mother of the child was at work and the Accused was taking care of the two youngest children: Sb.L., aged 16 months; and SL, just 5 months old. [ 8 ] Mr.

SEL explained that he was on the computer with his back to his two young children when he heard a clang noise, then the sound of a bump on the ground. As he turned SL began to cry as did SBL, who was beside the couch where his sister was lying on her back. Mr. SEL believed SBL hit SL on the head with a toy. Since SL was in distress he picked her up then promptly contacted emergency services. SL was transported to the Stollery Children ’ s Hospital where her condition was investigated and a variety of injuries identified. Mr.

SEL was interviewed and subsequently charged with aggravated assault. [ 9 ] There is no dispute that SL recovered well from the June 30 incident and has no apparent lasting injury from that event. She was kept in hospital for eight days for observation and her heart operation was postponed and performed successfully on August 20, 2009. III. Positions on the Issues [ 10 ] Counsel agree that the critical issue is whether the case for the Crown establishes beyond a reasonable doubt that the Accused did in fact and by his own conduct cause grievous bodily harm to SL while she was in his care on June 30, 2009.

[11] The Crown takes no issue that SL recovered well from the trauma and has shown no residual effects attributable to herinjuries. However, based on the evidence of the nature and extent of injuries sustained by SL while in the care of the Accused, as well ashis own admission, a conviction must follow.

In closing argument, the Crown left open whether the evidence would support a finding ofa level of endangerment to life as would sustain the charge of aggravated assault and fairly invited the Court to consider that assaultcausing bodily harm may be more accurate as a lesser included offence. [12] Defence maintained that the evidence does not sustain any assault, aggravated or otherwise, both as to the actions and theintent of Mr. SEL. Based on all the evidence, SL’s injuries had some alternative explanation that does not involve misconduct by Mr.SEL.

In all events the circumstances give rise to a reasonable doubt and the Crown has failed to meet its burden of proof. IV. Review of Evidence [13] Mr. SEL testified on the events of June 30, 2009. When an accused person testifies the finder of fact is required to firstreview and evaluate the evidence of the accused in isolation: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, most recentlyreviewed by the Supreme Court of Canada in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152. A.

Evidence of the Accused - Reliability [14] The Accused 37 year old father described being upset that, as he came over to the couch, SL was arching her back and cryingin a manner he had never before witnessed. He tried to console her with a rocking motion he termed his Daddy Bounce carrying her tothe kitchen where he called 911. He described that he held her in one arm with normal pressure, his hand on her head while she wasarching and flailing.

The Daddy Bounce did not help settle her at all. [15] When the Accused got through to an emergency operator, she told him to stop moving the infant who was clearly crying andplace her down flat on her back. He described that SL seemed to stop breathing, her cry was laboured and her eyes were rolling until theEMS attendants arrived. [16] At the Hospital the Accused provided a written statement that was fairly consistent with his oral evidence at trial. Hisnarrative accepted no personal blame. He was then arrested and warned before giving a full statement in an interview with leadinvestigator, Det. Debbie Doyle.

While Defence fairly declines to dispute the voluntariness of the statement, he argues that the content iscompromised by fatigue, the highly structured format of the interview, and the impact of suggestive questioning. The Accused waslegally cautioned both at the beginning and during the course of the police interview. [17] I have no difficulty in concluding that the statement that was video recorded does convey the voluntary responses of aconcerned parent who is cooperating with a police investigation. At no time was the Accused offered any inducements, threats orpromises of punishment.

There are some points of fatigue but Mr. SEL was accorded comfort breaks, later accepted an offer of a coke,and showed no signs of medical distress despite a history of diabetes. [18] Det. Doyle did confront the Accused with the medical evidence of subdural hemorrhaging, brain swelling and retinal blotsthat are often linked to rapid acceleration/deceleration trauma. I will turn to his response in a moment but I find nothing in thisconfrontation that amounts to any form of trickery as would offend public expectations. The interview was highly structured to motivateMr.

SEL to make a confession, including an invitation to write an apology to his family from which I will quote. [19] However, I have concluded that the participation by Mr. SEL demonstrated a worried but fully operating mind. An “operatingmind”, as required for a voluntary statement, is defined in R. v. Whittle, (SCC), [1994] 2 S.C.R. 914 at 939, 116 D.L.R.(4th) 416 to be comprised of two parts: cognitive ability to know what the witness is saying, and understanding that statement may be tothe witness’s detriment:

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused . Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [Emphasis added.] See also R. v. Oickle , 2000 SCC 38 at paras. 63-64 , [2000] 2 S.C.R. 3 . Accordingly, the statement is properly part of the evidence relevant to assessment of whether the Accused is a reliable witness. [ 20 ] The interview lasted from 2:22 a.m. to about 7 a.m. The Accused was quite open and candid throughout.

Crown placed particular emphasis on one statement as especially revealing While that statement should not be read in isolation, I will quote surrounding context from which Det. Doyle was seeking acknowledgment of fault that would conform to the medical assessment of abuse. The Accused described and demonstrated this Baby Bounce that he did not even think of as shaking.

He later explained that SL just would not be consoled and she started arching right away. [ 21 ] The following exchange is recorded in his Taped Interview at p. 111, ll. 1 to 21: Q. . . .So what do you think - - what do you think was the cause of all this? The frustration - - other than, of course, [Sb.L] hitting her which started her crying, but what do you think was the cause of this to all of a sudden to start shaking? A. I was trying to calm her down. Q. Okay. All right.

And you didn ’ t - - didn ’ t seem to realize your own strength or you ’ re just a little bit frustrated because she ’ s crying, and you ’ re doing stuff, and [Sb.L] hit her, and he knows better than to hit her, and he shouldn ’ t have done that, and all of a sudden it ’ s stop it. Q. Now, what were the actual words that you used when you were talking with her? A. What ’ s wrong? What ’ s wrong? Q. Okay. All right. And so once that happened, when you saw her eyes rolled back and all of a sudden you thought oh, my gosh, I hurt her, and you called 911, what was going through your mind at that time? A.

I didn ’ t want to lose my kids. [Emphasis added.] [ 22 ] At trial, Mr. SEL resiled from the import of the statements he made to Det. Doyle about hurting the child and asserted that he did not ever do any harm. He stated that he was very fatigued and under a great deal of stress. The ideas that he hurt the child were not his words and he felt the detective may have put words in his mouth by her questions which created doubt in his mind. [ 23 ] All of this is in marked contrast to the Accused ’ s statement to Det. Doyle, including the apology letter he authored to his wife that Det. Doyle encouraged him to write.

His essential message about SL was that he: ... made a mistake and hurt her, one I am not proud of and would take back if I could. I can only ask for your forgiveness and understanding. I really did not mean to hurt her our precious baby.

[ 24 ] After the interview itself, but while still in the room and aware of the video, Mr. SEL spoke by phone with his wife to say that he was being charged. The Accused explained to her alone, but while being video recorded, that he shook SL by accident after SBL had hit her and that he did it to see if she was alright. [ 25 ] From a full review of his evidence, and based on a variety of factors, I am unable to accept the capitulations by Mr. SEL: i. In the interview I could find no support for his allegation that words were put in his mouth.

Ideas and themes about how injuries of this sort may arise were certainly profiled. Det. Doyle talked at length to offer context to encourage Mr. SEL to describe how the infant was handled; but at no time was he cross examined or asked to agree with particular descriptions of what may have taken place. ii. The tears and sustained sniffling by Mr. SEL in the video reflected more than mere upset at the jeopardy of his daughter. It resonated as a reaction of a parent concerned that his own behaviours had caused the problems for which she was receiving emergency treatment.

I did not detect any correlation between his emotions and any sense of pressure, fear or even fatigue. iii. By his language and comportment, I was convinced that Mr. SEL meant what he said in the interview, including that he made a mistake, he was sorry, and never meant to hurt his daughter. iv. His rationalization totally lacked credibility that the response: “ I didn ’ t want to lose my kids ” meant and referred to what he was thinking at that moment of the interview and not what he was thinking at the time of the events.

Not only did his choice of words express this idea in the past tense, it referred to more than one child. It is far more credible that his fear of losing the kids arose as he realized his mistake in shaking the child, being unable to figure out what was wrong with S.B., or his inability to help and comfort her.

There is nothing in the question that would invite him to express what he was now thinking, at this point in the interview, and that is definitely not how the next part of the interview unfolded. [ 26 ] Overall, despite a sincere concern for the welfare of his vulnerable infant, I found the Accused to be unreliable in terms of his account at trial of what transpired leading up to the 911 Call. However, I must go on to consider whether his version nonetheless raises a reasonable doubt which defeats the case of the Crown.

If not, I must go on to determine whether I am convinced beyond a reasonable doubt of the guilt of the Accused based on the balance of all of the evidence which I do accept. B. Evidence of the Accused - Reasonable Doubt [ 27 ] Typically where the testimony of an accused is unreliable it is a challenge to re-examine whether the same evidence gives rise to a reasonable doubt. The decision of the Alberta Court of Appeal in R. v. J.W.A. , 2010 ABCA 406 at para. 22 , leave refused [2011] S.C.C.A.

No. 153, fairly notes that it is not essential to provide precise reasons for rejecting the testimony of an accused in isolation before considering that evidence in the context of all the testimony. The court endorsed the trial judge ’ s conclusion that to do otherwise would “ ... give the defence a veto or put up an impenetrable roadblock to consider the evidence in the trial as a whole. ” [ 28 ] In that context, the following points merit careful review: i. the experts do support Mr. SEL ’ s assertion that SL was initially injured on the head by her brother; ii. so too there is some support that Mr.

SEL ’ s description of SL ’ s condition, arching her back, rolling back of her eyes and unconsolability, may have been the result of seizure; and iii. the wording of the letter of apology is somewhat equivocal, in the sense that Mr. SEL does not actually describe what he did to

hurt the infant, he did call 911 promptly, and did respond to the 911 operator ’ s advice to quit moving the infant. [ 29 ] In general, while I remain unaffected by Mr. SEL ’ s capitulation against his police statement, there is nothing in his evidence, substantively or otherwise, that is profoundly defensive, lacking in candor, or which otherwise defies all belief. Does that give rise to a reasonable doubt? Perhaps not in and of itself, but these factors are definitely an important part of the review of the whole of the evidence and the onus of proof on the Crown. C.

Overall Assessment of the Evidence [ 30 ] This matter first came to police attention on June 30, 2009 as part of a hospital protocol arising from the assessment of SL ’ s medical condition and the description of her circumstances while in the care of her father. [ 31 ] Detective Andre Francois attended the residence and located some medium-sized toys near the couch where SL had been lying but no photos were taken of actual positions of the nine toys seized as they were found in the room. [ 32 ] The mother ML described that SL was less than 5 pounds at birth and just 8 pounds at the time of the incident. Dr.

Melanie Lewis, the pediatrician caring for SL, had last checked her a week prior to this incident, and at least two other times since April. That particular morning the mother described that SL looked very pale, threw up shortly after being fed and had some bruises on the top of her head that she had not seen before. There were some other markings on her forehead and eyelids that first appeared the day before the incident. The blue veins seen in Exhibit photos were typical since birth. [ 33 ] Ms.

ML also stated that SL ’ s eyes would move slowly while tracking motion and that SL had what is called a ‘ lazy eye ’ . Ms. ML described one prior incident from March or April where SBL slipped and bonked heads with his sister, who bruised easily. Ms. ML also reported instances of projectile vomiting and aspirating on food from six weeks of age until after her heart surgery that was ultimately conducted on August 20, 2009. Prior to the operation, SL ’ s blood pressure was above normal. Doctors said the blood pressure of this infant should be 90/50 (systolic pressure / diastolic pressure). Although Ms.

ML did not have records, she witnessed one reading by Dr. Multender of 201/106, which scared her. I will return to the issue of elevated blood pressures later on in this decision, but here observe that the August surgery appears to resolved this concern. D. Medical Evidence and Expert Opinion [ 34 ] Certain evidence from the post-incident medical investigation of SL is not in dispute.

When SL was examined by medical personnel at the Stollery Children ’ s Hospital, they identified: 1. superficial marks on SL ’ s forehead and the top of her head, 2. bruising on SL ’ s chest and abdomen, 3. a healed rib fracture, 4. evidence of injury to rib cage cartilage tissues, 5. bleeding inside the cranium, between the brain and the surrounding membranes, and

6. retinal bleeding. [ 35 ] While the existence of these injuries is not disputed, the Crown and Defence have different theories as to how SL was injured, the significance of the observed phenomena and the correlations or conclusions to be drawn. The Crown ’ s theory is that the Accused shook or otherwise moved SL in a manner that caused her intracranial and retinal hemorrhaging.

The Defence argues an innocent explanation for those phenomena, either as a consequence of SL ’ s existing circulatory system anomalies, the lingering effects of childbirth, various health conditions, or as a consequence of the alleged impact of a toy wielded by SL ’ s older sibling, SBL. [ 36 ] Both the Crown and Defence experts commented at length on these alternatives. 1. Dr. Lionel Dibden [ 37 ] Dr. Dibden is a recognized expert in pediatrics with over 20 years experience and knowledge in the areas of child physical and sexual abuse.

He is the Director of the Child and Adolescent Protection Centre at the Stollery Centre of the University of Alberta Hospital with significant academic and clinical credentials. He was consulted because the injuries to SL were not adequately explained by her parents and were unwitnessed by others. [ 38 ] Dr. Dibden first examined SL on the morning of June 30. He was aware of the infant ’ s condition from the treatment team including a CT scan (performed less than an hour after arrival), the use of O 2 to stabilize and some information gathered from the parents.

He was advised that SL had Down Syndrome and a VSD for which surgery was pending. He also knew of marks on the forehead and top of the head as well as bruising on the chest and abdomen, but was principally drawn to the recent intracranial hemorrhaging between the two cerebral hemispheres as shown on the first CT scan done that morning. [ 39 ] Dr. Dibden identified a number of possible explanations for the observed injuries as a “ differential diagnosis ” ranging from possible infection, bleeding problems, leukemia or trauma whether inflicted or accidental.

Laboratory testing eliminated the possibility of a metabolic disorder named glutaric acidemia, leukemia and other blood abnormalities, including aberrant blood clotting processes. There also was no sign of infection, an accumulation of cerebrospinal fluid called hydrocephalus, or reduced blood oxygen levels (hypoxia). The remaining diagnosis was that the observed intracranial bleeding was a consequence of some form of physical trauma. [ 40 ] Dr. Dibden was later informed that significant retinal bleeding was detected by the opthamologist, Dr. James Lewis, whose testimony will be reviewed in detail. Dr. Dibden ’ s

interpretation of Dr. Lewis ’ s report of retinal bleeding was “ highly correlated ” with “ acceleration/deceleration rotational event with no significant impact ” . In other words Dr. Dibden concluded that SL ’ s injuries had resulted from vigorous shaking without the child hitting a solid surface. [ 41 ] This expert also concluded that kind of movement accounted for the intracranial bleeding, where movements of the brain sheered blood vessels and caused bleeding.

The bleeding, as viewed via the two CT scans conducted on June 30 and July 1, had characteristics that indicated the bleeding was very recent, although on cross-examination Dr. Dibden acknowledged the bleeding could have occurred up to five to ten days prior to the CT scans and may represent mixing of ‘ old ’ and ‘ new ’ blood.

He indicated an MRI examination could have clarified the possibility that the accumulated blood had been released at two different times, and had no explanation of why that step had not been taken. [ 42 ] Post-injury examinations also disclosed a fractured rib on SL ’ s right side, with healing at certain rib and cartilage interfaces. Skeletal survey and bone scans were performed in the following days. His

interpretation was that the torso bruising was potentially consistent with the child being held and manipulated with considerable force. Dr. Dibden ’ s conclusion was that the rib fracture predated the head injuries by at least two weeks. The cartilage injuries were more recent and in Dr. Dibden ’ s opinion corresponded to the torso bruising pattern and may have occurred within the previous day. Again, he conceded the cartilage injuries could have occurred at an earlier point.

This expert ’ s conclusion was that a squeezing type force would be a likely explanation for the observed bruising and apparently more recent cartilage injury, that would not be normal for an adult ’ s care and comfort of an infant.

[ 43 ] Dr. Dibden also commented on elevated liver enzyme levels detected post-incident, but acknowledged that phenomenon, while observed in some abuse scenarios, has no proven correlation to incidents of abuse and has a mechanism that is an untested hypothesis. I therefore place no weight on that observation. [ 44 ] From a compilation of all presenting medical circumstances Dr. Dibden assessed that the cause of SL ’ s injuries was a rapid acceleration/deceleration rotational event with no evidence of significant impact.

He indicated the extent and type of hemorrhaging in the brain, the multi-layered and extensive hemorrhaging from tears in both eyes, viewed in conjunction with the injuries to skin and cartilage in the anterior rib cage, supported this as the mechanism used, particularly as testing had eliminated all other listed differential diagnoses. [ 45 ] SL reportedly was hit on the upper forehead area with a toy by her 16 month old brother. Dr.

Dibden stated that bruise marks on the face or head lined up as from some impact and were reasonably convincing; however, in his opinion, if SL was struck with a toy then that impact would not have been the cause of intracranial bleeding. While there may be a temporal link, there was no etiological association of the intercranial bleeding to the striking with a toy. [ 46 ] Dr. Dibden clarified that he excluded the toy impact as a cause of the internal head injuries because there was neither a skull fracture nor swelling.

In his estimation, in order for a strike by a toy to be the cause of intracranial bleeding, there would have to be more serious external injuries than the marks observed on SL ’ s face and forehead. While unable to measure the force of any blow from SBL, such an impact would not cause the injuries to the nervous system and eyes that were identified and treated. [ 47 ] Dr. Dibden ’ s conclusion was that someone had held and squeezed SL, moving in a way that sheared blood vessels and caused bleeding in the brain and eyes now described as Abusive Head Trauma.

The forces sufficient to cause these kinds of injuries would be objectively viewed by any observer as dangerous. [ 48 ] Dr. Dibden acknowledged that while other disciplines such as biomechanic specialists, forensic pathologists and orthopaedic surgeons could provide further information, nevertheless in his role as a clinician he could provide an integrated perspective of the whole of the medical evidence, and reconstruct the cause of SL ’ s injuries on that basis.

He acknowledged the kinds of force and motion required to cause acceleration/deceleration rotation nervous system injuries constituted a topic of academic and legal disagreement; however, conventional medical opinion, with which he concurred, was that shaking an infant could cause serious brain injury and death. In his view, at least some of the associated “ controversy ” was artificial and contrived. [ 49 ] During a detailed cross examination Dr.

Dibden commented on whether SL ’ s observed injuries matched each of the “ triad ” of indicia associated with Abusive Head Trauma: swelling of the brain, subdural bleeding and retinal hemorrhages. [ 50 ] As to the first, Dr. Dibden acknowledged some skepticism with emergency room observations that significant brain swelling had been demonstrated by expansion of her fontanelle, which is the soft part of an infant ’ s skull.

Moreover, he confirmed that while the CT scan did indicate swelling, that examination mechanism was of limited reliability and a more definitive assessment could have been obtained using MRI imaging. [ 51 ] Similarly, the CT scan indicated bleeding had occurred inside the brain membranes, but not the actual brain tissues themselves. In Dr. Dibden ’ s opinion the small blood vessels - bridging veins that connected brain tissue to a central vein - were injured by a shearing action that exceeded their elastic capabilities. [ 52 ] As for the third indicia, Dr.

Dibden said that the retinal bleeding was the critical diagnostic feature, rather than more severe retinal injuries which occur in only a minority of acceleration/deceleration rotational injury cases. Alternative potential causes of S.L ’ s retinal bleeding were questioned in detail. [ 53 ] The following blood pressure measurements were derived from SL ’ s post-incident EMS records (Ex 8, p. 16): 176/84, then 8 minutes later 74/50; and 6 minutes later 135/114.

Measurements taken by the attending Emergency physician at the hospital were recorded as: 151/94 on arrival, 121/89 14 minutes later, and 112/94 a half hour after that. Subsequent measurements indicated normal blood pressure (Ex 8, p. 80). Dr. Dibden stated that he was not aware SL exhibited any unusual blood pressure or sustained hypertension (elevated blood pressure) history, including the 201/106 measurement referenced by Ms. ML; he acknowledged that if those blood

pressure readings were real, then that may influence his conclusion of the cause of SL ’ s nervous system bleeding: ... if she has maintained an elevated blood pressure of that degree it may make us reconsider how likely it is that the blood pressure was the cause of the subdural hemorrhages and the retinal hemorrhages that would be what we would need to think about. [1] [ 54 ] Dr. Dibden ’ s conclusion was that these measurements cannot be accurate but noted that he did not have a direct biological explanation of how these kinds of variations might occur.

In his opinion the high blood pressures measured, particularly the 201/106 value if accurate, would warrant medical attention. [ 55 ] Although Dr. Dibden was initially reluctant to express that SL had experienced seizures at the time of her injury, he did confirm evidence of eyes rolling to the back of the head, arms flailing, vomiting and arching of the back.

He was unsure how to characterize the significance of these activities but did acknowledge some of her behaviour as “ seizure-like ” and agreed that a seizure would be a common response to the small amount of subdural blood around SL ’ s brain. [ 56 ] Although aware that SL was scheduled for surgery for the VSD, there was no consultation by him with the heart specialist and no opinion expressed as to the risks of complications for a Trisomy 21 infant with such a heart defect in responding to the pain from being hit by the toy. [ 57 ] Dr.

Dibden did acknowledge that, while the “ triad ” of indicia were formerly considered definitive proof of child abuse, more recently medical experts also looked for other corroborating evidence to indicate acceleration/declaration rotational movement, such as other injuries or reports from witnesses.

He acknowledged that the torso bruising and skeletal injuries could support Abusive Head Trauma, but in this instance he would still suspect Abusive Head Trauma even if no skeletal injuries had been detected. [ 58 ] When asked about the controversial aspects of whether shaking an infant could result in nervous system injury, Dr.

Dibden indicated his understanding of research literature was that shaking alone in some cases could cause that kind of injury, but more commonly an impact on the infant ’ s head was required to create injurious force levels. [ 59 ] He also acknowledged that controversy exists as to whether neck skeletal injuries would be an all but inevitable consequence of injury by shaking; in this case SL did not exhibit any neck injury. Dr. Dibden recounted an instance of a child with Abusive Head Trauma type injuries that occurred when the child knocked over the chair in which he was seated.

He also confirmed that 40% of infants with a lethal brain injury caused by an impact did not display any visible external surface marks. The impacts were only identified during autopsy. 2. Dr. James Lewis [ 60 ] Dr. Lewis was the consultant ophthalmologist who examined SL the day after she was brought into the Hospital. His sub- specialty in neuro-ophthalmology deals specifically with nerve connections between the eyes and the brain.

In his initial observation of SL he noted a moderate degree of visual impairment based on her limited ability to track a moving object, although SL demonstrated a fairly good reaction to increased exposure to light. [ 61 ] Using an indirect ophthalmoscope Dr. Lewis was able to obtain a three-dimensional view of the retina, optic nerve, and other structures on the back of the eyes. Although the optic nerves appeared normal, he noted innumerable red hemorrhages throughout the posterior part of the retinas in both eyes. Those hemorrhages also extended into the retinal periphery. Dr.

Lewis described them as multi- layered hemorrhages found predominantly inside the retinal area but also in the pre-retinal area in all four quadrants of both eyes. The exact number of hemorrhages were too numerous to count but Dr. Lewis estimated there were at least thousands of these local areas of bleeding. [ 62 ] Dr. Lewis explained at trial that the retina contains seven or eight layers of cells that can be separated if there is blood inside

[ 62 ] Dr. Lewis explained at trial that the retina contains seven or eight layers of cells that can be separated if there is blood inside the retina. The majority of SL ’ s hemorrhages were located within the layers of the retina between the nerve fibre layer and the back of the eye. Other hemorrhages were observed in the pre-retinal area. This expert confirmed that the retinal hemorrhages observed were consistent with the degree and kind of vision impairment noted during his initial exam of SL ’ s vision. [ 63 ] Dr.

Lewis was explicit that the only explanation for this kind of bleeding was high and rapid changes in velocity. He said the prevailing theory is that these hemorrhages result from mechanical forces on the retina as a result of movement of the vitreous humour, a gelatinous material that fills the eye. As the body undergoes rapid acceleration and deceleration the vitreous humour undergoes movement that is not matched by the ‘ solid ’ parts of the body, including the retina.

The traction of the vitreous humour on the retina can cause detachment and bleeding. [ 64 ] This expert could only suggest two possible causes for the kind of injury that he observed: 1. severe blunt head trauma such as that from a serious motor vehicle accident, or 2. violent shaking of an infant. [ 65 ] Taken from a long list of general causes for retinal hemorrhages, each of leukemia, high blood pressure, and blood disorders, were ruled out by the number and character/shape of these hemorrhages ( ‘ blot ’ -shaped, rather than ‘ flame ’ patterned) and by the results of various blood tests conducted by others.

Further, Dr. Lewis indicated high blood pressure and blood disorders are very uncommon in infants. [ 66 ] Dr. Lewis would not offer an exact date or time at which these hemorrhages had occurred but did indicate that the visible bleeding would have disappeared in two to four weeks. From his familiarity with the structural and physiological retinal abnormalities associated with Down Syndrome, Dr. Lewis could not think of any aspect of that genetic condition that would cause or otherwise relate to the hemorrhages he observed. [ 67 ] The Defence conducted a detailed cross-examination of Dr.

Lewis and his explanation of the cause of SL ’ s observed retinal bleeding. He specifically acknowledged that retinal hemorrhages can result from “ a rapid onset of very high blood pressure ” , but described those as having a ‘ flame ’ shape, usually associated with a swollen optic nerve and predominately located in front of the retina itself. He also acknowledged that seizures can cause retinal bleeding, but not to the extent he observed in SL ’ s eyes. [ 68 ] Dr.

Lewis was further asked about other eye injuries that are sometimes noted where a child is injured via acceleration/deceleration movements, or following a high velocity impact. Sometimes a fold in the retina is observed, in other cases the mechanical forces on the retina cause its layers to split. Dr. Lewis did not observe either of these kinds of injury during his examination of SL but noted that neither of these injuries is a definitive indication of abuse or high velocity impact. In contrast, 85% of “ shaken babies ” exhibit retinal bleeding. Dr.

Lewis was unable to offer an estimate of the frequency of folded or split retinal injuries. [ 69 ] The Defence presented Dr. Lewis with a medical report of a child who exhibited similar retinal bleeding but had not undergone strong acceleration/deceleration forces or a high velocity impact. Dr. Lewis acknowledged the retinal bleeding patterns appeared similar, but rejected any parallel between the reported child and SL on the basis that the other child had a different condition, hydrocephalus. [ 70 ] Dr.

Lewis also acknowledged that a low blood oxygen concentration, hypoxia, is associated with retinal hemorrhages, but observed medical investigation has not established whether hypoxia causes retinal bleeding; the nature of any possible interrelationship between those phenomena is unclear. He was not aware that the infant was cyanotic or that she may have a “ lazy eye ” . It is not clear what effect this information, or that SL was awaiting VSD surgery, may have had on his opinion. 3. Dr. Janice J. Ophoven

a. Testimony [ 71 ] Dr. Ophoven, a pediatric forensic pathologist, pediatric pathologist, and pathological anatomist, testified as an expert for the Defence. She has experience and expertise in detection of child abuse. [ 72 ] The Crown did not dispute Dr. Ophoven ’ s credentials and expertise during the certification process but later in cross- examination challenged Dr. Ophoven ’ s impartiality as an medical expert and her credibility as a witness. I will separately address that issue below, and here simply review her actual testimony in relation to SL and the nature and cause of her injuries. [ 73 ] Dr.

Ophoven was not involved in SL ’ s treatment, nor has she directly examined the infant. Her analysis was based on witness statements, recorded interviews, and police and medical investigation reports, records, and notes. [ 74 ] In Dr. Ophoven ’ s opinion the observed instances of high blood pressure were genuine and were the probable cause for SL ’ s intracranial and retina bleeding. This expert opined that SL ’ s clearly established heart structural abnormalities provide an explanation for those episodes of very high blood pressure. [ 75 ] Dr.

Ophoven explained that SL ’ s heart had a complex, abnormal structure that included a shunt affecting the blood flow through the heart valve. Normally, the heart simultaneously pumps blood into two independent and separate circuits; one with oxygen rich blood to the body and brain, the second taking oxygen depleted blood to the lungs for gas exchange. In SL ’ s case the blood flowed aberrantly into the lung cycle through a hole in the ventricle chamber walls.

While that defect is problematic, SL ’ s heart abnormality also involved a heart valve with the result that in certain instances the aberrant blood flow could reverse, and result in high pressure blood flow to the brain. Dr. Ophoven indicated in a child such as SL that crying can trigger this blood flow reversal. [ 76 ] This expert stressed that blood flow to the brain is normally well regulated so that in a healthy person there is minimal variation. Abnormally high blood pressure could account for retinal bleeding. Dr.

Ophoven expressed skepticism that the shape of retinal hemorrhages is significant, and observed this scheme was advanced by a small Toronto research team and did not account for how released blood moves through the retina. [ 77 ] The other alleged indicia of abuse were characterized by Dr. Ophoven as inconclusive. The alleged skeletal injuries may instead be a consequence of abnormal growth observed in Down Syndrome children. [ 78 ] Dr. Ophoven did not see evidence here that SL had experienced strong mechanical forces. Retinal folding or tears would clearly indicate that kind of event, but those were absent.

The CT scans of the brain showed no evidence of shearing force injury, and results from MRI testing that was ordered but not performed would have been more reliable. The observed intracranial bleeding may not result from a break in a bridging vein but might instead be caused by rupture to blood vessels associated with the dural membranes. [ 79 ] In her opinion the scientific foundation for the conventional mechanism for Abusive Head Trauma was weak. Biomechanical studies that used ‘ shaking ’ had failed to generate the kinds of forces that are believed necessary to cause nervous system injury and bleeding.

Instead, impact between the child and an object was required. Animal models had failed to reproduce the retinal bleeding component of the Abusive Head Trauma model. Dr. Ophoven ’ s perspective in regards to the force of the toy will be reviewed separately. b. Credibility [ 80 ] Crown counsel broadly - and aggressively - challenged Dr. Ophoven ’ s credibility on several points, that Dr. Ophoven:

1. had misstated the number of autopsies she has performed on young children on various occasions and thereby exaggerated her expertise; 2. had inappropriately failed to disclose the court cases in which she had provided expert testimony; 3. was a ‘ professional defence expert ’ who provided slanted testimony; 4. has misrepresented her earnings and sources of work; and 5. is an unreliable witness by virtue of admitted overestimations and cavalier responses where she has misspoken under oath on a number of occasions. [ 81 ] During cross-examination on these issues Defence counsel complained that the Crown had not disclosed to the Defence a ‘ dossier ’ of material relating to Dr.

Ophoven ’ s expertise and history that had been assembled by the Crown. Crown counsel subsequently agreed to provide to the Defence copies of transcripts on which he intended to rely. In written reasons issued January 30, 2012 the Court confirmed the Crown ’ s obligation to disclose, with remedies granted short of a stay of proceedings (reported as R. v. Limb , 2012 ABQB 71 ). [ 82 ] Crown was accorded wide latitude to pursue collateral matters that might touch on the reliability of Dr. Ophoven based upon her testimony in prior proceedings.

While much of the questioning was repetitive and unhelpful, the Court had no difficulty in concluding that Dr. Ophoven was neither attentive to certain questions in prior proceedings nor careful in her response as to the number of autopsies, as distinct from cases, she handled at various points during her career. While Dr. Ophoven admits to having been cavalier by misspeaking and overstating her autopsy experience and income, much of this arose from lack of proper records and preparation.

Although that does not excuse her conduct, particularly as an experienced expert witness, I find no intent to deceive - rather a dismissive attitude as to the importance of accuracy in all areas of her testimony. [ 83 ] In other circumstances this could have raised serious problems affecting the focus of court proceedings. On the one hand Dr. Ophoven raises points which rationally may assist the defence of the Accused.

On the other hand she does not present as a fully reliable witness and her failings cannot be ignored. [ 84 ] In particular she critiques the lack of scientific studies to support that shaking without impact can cause retinal and intracranial hemorrhaging in children and the reliance on confessions literature as problematic in a criminal context. These points merit consideration as within her area of expertise. However, I was concerned by her assertion that SL ’ s retinal and subdural hemorrhaging could well have been caused by the unmeasured force of a 15 month old toddler with a hand-held toy.

She justified her testimony made without consultation with a biomechanical engineer as she could rely on her experience of having owned such toys and taken care of children. This is precisely the sort of opinion evidence against which the Courts have been cautioned by the Goudge Inquiry. [ 85 ] Much like the evidence of the Accused, the issue is not so much a question of being able to rely on Dr. Ophoven in any substantive way.

But on the specifics of this case, I have assessed those matters that were within her expertise and that deserve some consideration as part of a assessment of the burden of proof generally. c. Residual reliability [ 86 ] While Dr. Ophoven and Dr. Dibden clearly fall on opposite sides of a significant medical and scientific dispute, it is unnecessary for this court to resolve that debate as may relate to this case, assuming that was even possible. What is required is to assess whether the injuries sustained by SL have been shown beyond any reasonable doubt to have been caused by the actions of the Accused.

In this context there are three important components raised by Dr. Ophaven ’ s opinions as relate to SL:

i. at the time of the incident, prior to her operation, SL has a heart with physical features that could cause abnormal bloodflow; ii. crying can trigger a bloodflow reversal resulting in high pressure blood flow to the brain; iii. high blood pressure as charted can lead to subdural and retinal bleeding. [87] Dr. Dibden doubted that the recorded and aberrant blood pressure measurements could be accurate. He noted that it istechnically difficult to measure the blood pressure of an infant. Without a plausible biological mechanism for intermittent hypertensionDr. Dibden concluded the measurements were in error.

However, the readings were taken by different healthcare providers over a periodof 75 minutes. As for SL’s heart, Dr. Ophoven was the only expert to review and comment on the details of that condition and its effects.She provides a plausible mechanism for the episodes of high blood pressure. Certainly, her testimony on this point is not inconsistentwith that of the other experts. [88] Other aspects of the controversy concerning Shaken Baby Syndrome / Abusive Head Trauma, and acceleration/decelerationrotational injury are not necessary for my conclusion and therefore will not be the subject of further commentary.

In that sense I do notprefer either the position advanced by Dr. Dibden or Dr. Ophoven. VI. Analysis 1. Actus Reus [89] Mr. SEL is charged with aggravated assault, Criminal Code, s. 268: 268.

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [90] Binnie J. in R. v. Williams, 2003 SCC 41 at para. 41, [2003] 2 S.C.R. 134 explains the requirements to prove this offense:“The prosecution must establish all of the elements of an assault plus the aggravating circumstance.” [91] Justice Binnie continues at para. 43 to explain this provision relates to either demonstrated consequences, or a kind of peril: 43 In Godin, supra, Cory J. stated, at p. 485, “[t]he

section pertains to an assault that has the consequences of wounding, maiming ordisfiguring” (emphasis added) or (to complete the list) endangering life. “Endanger” means to “[p]ut in danger . . . put in peril . . . [i]ncurthe risk”: New Shorter Oxford English Dictionary on Historical Principles (1993), vol. 1, at p. 816. [92] The peril must be real: “... proof of endangerment of the complainant’s life was an essential element of the prosecution’s casefor aggravated assault.” (para. 47). [93] The peril facet of aggravated assault does not require injury.

Bodily harm is not necessary to prove an aggravated assault“endangers the life of the complainant”: R. v. De Freitas (1999), (MB CA), 134 Man.R. (2d) 78 at para. 13, 132C.C.C. (3d) 333 (Man. C.A.). [94] Assault causing bodily harm (Criminal Code, s. 267(b)) is an included and lesser offense of aggravated assault: R. v. Soluk,

2001 BCCA 519, 157 B.C.A.C. 224. 2. Mens Rea [95] The mental component for aggravated assault is well established: “... objective foresight of bodily harm. It is not necessarythat there be an intent to wound or maim or disfigure.”: R. v. Godin, (SCC), [1994] 2 S.C.R. 484, 168 N.R. 193; R. v.Cador, 2010 ABCA 232, 487 A.R. 93. 3. Wounding [96] Crown does not argue vigorously that Mr. SEL’s alleged misconduct could be said to have wounded SL.

Conventionally, theterm “wound” has been used to indicate skin was broken and bleeding ensued, though our Court of Appeal has also concluded a blow thatbroke an eardrum wounded a complainant: R. v. Littletent (1985), 1985 ABCA 22 , 59 A.R. 100, 17 C.C.C. (3d) 520 (Alta.C.A.). In R. v. Hilderman, 2005 ABQB 106 at para. 15, 369 A.R. 24, Martin J. (as he then was) suggests “wounding” involves apermanent consequence. [97] I agree with Justice Martin’s approach that “wounding” involves permanent damage. It does seem that the requirement thatskin be broken and bleeding ensue is artificial.

Indeed, that has already been recognized by the Alberta Court of Appeal in R. v.Littletent, an eardrum is obviously not skin. An appropriate modern definition of “wounding” is tissue injury that results in permanentdamage or dysfunction, see for example R. v. Vincent, 2011 ONSC 139 at paras. 7-17. Had SL suffered ongoing injury, such assustained loss of vision or impairment to her brain, I could see those as analogues to the kind of injury recognized in R. v. Littletent.Here, however, that kind of lasting effect did not occur, so SL could not have been ‘wounded’ by Mr. SEL’s alleged misconduct. 4.

Endangerment of Life [98] On these facts, the basis for the charge is that Mr. SEL shook SL, caused intracranial and retinal bleeding, and therebyendangered her life. There is unanimous expert testimony that intracranial bleeding can have lethal consequences. Mr. SEL claimed heengaged in no action that put SL’s life at risk.

In other words, he said he never exerted any kind of force or motion that would cause SLto experience intracranial bleeding that could put her life at risk. [99] I have already concluded that, despite concerns with the independent reliability of the Accused’s evidence, it must be factoredas an important part of the review of the whole of the evidence and the onus of proof on the Crown. In particular, even if the Accusedmay have squeezed SL aggressively as he used his Daddy Bounce to deal with her condition while he phoned 911, can the Courtconclude that this caused the reported injuries?

To answer that question, I must return to an analysis of the Expert medical testimony. [100] Healthcare personnel reported the following conditions: 1. marks on forehead and top of head; 2. bruising to chest and abdomen, a partially healed rib fracture, and injury to rib cage cartilage; 3. bleeding between the cerebral hemispheres in the space between the brain and the surrounding membranes; and

4. retinal hemorrhages in both eyes, [ 101 ] Crown witness Dr. Dibden acknowledged the external facial and head injury could be consistent with the reported toy impact and thus have an innocent explanation. I therefore conclude that those injuries have no direct relevance to the Accused ’ s alleged misconduct. [ 102 ] Dr. Dibden concluded the fractured rib was at least two weeks old, which takes that injury outside the time-frame of the alleged assault. That injury too does not provide evidence of Mr. SEL ’ s alleged misconduct. [ 103 ] Similarly, Dr.

Dibden indicated that he could not clearly date the observed torso bruising and the cartilage injuries. While he thought those injuries were consistent with a child being firmly grasped and then manipulated, he acknowledged that those injuries were ultimately irrelevant to his conclusion that SL had been the victim of Abusive Head Trauma. Given that Dr. Dibden indicated these injuries were not the basis for his conclusion I will not put any weight on the bruising and cartilage injuries for my assessment of whether SL ’ s nervous system injuries were caused by the Accused.

I do think these injuries are, however, relevant to evaluate the Accused ’ s narrative of events surrounding the alleged offense. [ 104 ] The other injuries were more problematic. In particular, Dr. Dibden and Dr. Lewis highlighted the intracranial and retinal bleeding as having no biological explanation other than abuse that involved significant force and/or impact. Dr.

Dibden said any objective observer who observed a person engage in any activity that involved these kinds of forces would see those activities as dangerous and a potential cause for injury. [ 105 ] I recognize that the forces and biomechanical features of nervous system injury to young children are a point of academic, medical, and legal dispute.

However, as I have indicated the present case does not require further investigation of that topic. [ 106 ] Here, the Crown says that there is no possible reasonable alternative explanation for SL ’ s intracranial bleeding and retinal haemorrhages other than the Accused applying dangerous amounts of force to this infant. I disagree. The medical and expert evidence leaves open a non-culpable alternative explanation for the observed bleeding in SL in these locations. [ 107 ] Both Drs. Lewis and Dibden acknowledged that high blood pressures can cause anomalous bleeding, including retinal bleeding. Dr. Dibden and Dr.

Ophoven agreed that certain of the blood pressure readings taken of SL are extremely high, abnormal, and sufficiently dangerous to warrant medical intervention. [ 108 ] Dr. Dibden discounted the possibility that these measurements could be accurate, but had no explanation for the sudden and dramatic changes in blood pressure apparently observed. Dr. Ophoven however has provided what may be a plausible explanation for how SL ’ s blood may have undergone dramatic and sudden changes.

The high and low blood pressure states may represent SL ’ s heart shifting between two shunts that either selectively misdirect more blood into her lungs, or into her body and brain. I note there is no dispute that SL was born with heart structure anomalies that misdirect bloodflow. [ 109 ] The essential question, then, is do these disputed very high blood pressure measurements accurately reflect SL ’ s physiological state? While I can see how an isolated and extremely high blood pressure observation could be discounted as an accident or evidence of operator error, here there were at least four such observations.

Further, these observations were made by at least three different medical professionals: the physician reported by ML, the post-incident June 30 paramedic crew, and one of the June 30 emergency room personnel. These latter two readings were recorded over a 75 minute period during some of which period SL demonstrated seizure-like symptoms. I find it at least likely that SL did at relevant times suffer from episodes of very elevated blood pressure. [ 110 ] Dr. Dibden testified he never was made aware of evidence that SL had experienced periods of very elevated blood pressure. Further Dr.

Dibden never reviewed SL ’ s cardiology file: ... A child who has congenital heart disease may be in a situation where they have hypertension that may be the connection here, as I

have already acknowledged, I did not expressly review her, [SL ’ s] cardiology file having been told that she was due for VSD repair and was stable ... [2] [ 111 ] In other words at the time that Dr. Dibden concluded SL was the victim of violence, he did not know of a viable alternative explanation for her observed ‘ injuries ’ . [ 112 ] I conclude that there is reliable evidence that: 1. SL possessed a heart structure anomaly that allowed abnormal blood flows into either the lung or brain and body circuits; 2.

SL had episodes of extremely high blood pressure, presumably when the VSD heart had shunted the majority of her blood flow into the brain and body circuit; and 3. high blood pressure can cause retinal and intracranial bleeding. [ 113 ] In addition there is sufficient evidence to support that SL did exhibit symptoms of seizure and certainly was crying loudly at the time of the 911 Call. This stress reaction is sufficient on the evidence before me to support at least a reasonable doubt that the injuries reported at the Hospital may have arisen from a basis other than from the actions of the Accused.

Regardless of whether the Daddy Bounce may have contributed to the stress of this infant, the law accords sufficient doubt to exclude culpability for such a response on these facts, particularly in the absence of proof of any enduring damage. [ 114 ] In light of those conclusions I have concluded that there is realistic possibility that SL ’ s retinal and intracranial bleeding could be the result of her circulatory system abnormalities rather than external forces. As Dr. Dibden diagnosed SL as a victim of abuse on the basis of those two indicia, I have a reasonable doubt that the Accused injured SL. VI.

Summary [ 115 ] For the foregoing reasons, I find the Accused SEL not guilty on this indictment. Heard on the 23 rd day of January, 2012. Dated at the City of Edmonton, Alberta this 23 rd day of March, 2012.

S.D. Hillier J.C.Q.B.A. Appearances: Mark Huyser-Wierenga Crown Prosecutor’s Office for the Crown Kelly Dawson Dawson Stevens Duckett and Shaigec for the Accused [1] Transcript June 23, pp. 79-80. [2] Transcript June 23, p. 91.