R v SNA, 2018 ABQB 1052

Court of Queen’s Bench of Alberta Citation: R v SNA, 2018 ABQB 1052 Date: 20181221 Docket: 160611687Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - SNA Accused Restriction on Publication Witness Identity – See the Criminal Code ,

section 486.31. By Court Order, the identity of AB must not be disclosed in the course of these proceedings. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Shortly after 1 a.m. on March 27, 2016, A.B. was taken to the Wetaskiwin Hospital by her grandparents. Dr. Stassen, the emergency room physician, detected discoloration and swelling of A.B.’s ankles. After examining A.B.’s ankles, Dr. Stassen ordered X- rays. [ 2 ] The X-rays disclosed that A.B. had two broken ankles.

[ 3 ] A.B. was transported to the Stollery Children’s Hospital in Edmonton. [ 4 ] Further X-rays taken at the Stollery confirmed that A.B. had two broken ankles. In addition, she had two older healed fractures, one of her left forearm (radius) the other of her left upper arm (humerus). [ 5 ] A.B. was two years old. [ 6 ] A.B.’s mother, S.N.A., was subsequently charged with four offences.

S.N.A. stands charged that she 1. … between the 1st day of February 2016 and the 27th day of March, 2016, both dates inclusive, at or near Edmonton, Alberta, being the parent of [A.B.], a child under the age of 16, did fail without lawful excuse to provide the necessaries of life to [A.B.] thereby endangering the life of [A.B.] or causes or likely to cause ( sic ) the health of [A.B.] to be permanently endangered contrary to section 215(2) (a)(ii) of the Criminal Code [as amended at the opening of trial]. 2. … between the 1st day of February 2016 and the 27th day of March, 2016, both dates inclusive, at or near Edmonton, Alberta, did cause a child to be in need of intervention, contrary to

section 130(

a) of the Child Youth and Family Enhancement Act . 3. … between the 1st day of February 2016 and the 27th day of March, 2016, both dates inclusive, at or near Edmonton, Alberta, did unlawfully wound, maim, disfigure or endanger the life of [A.B.], thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code . 4. … between the 1st day of February 2016 and the 27th day of March, 2016, both dates inclusive, at or near Edmonton, Alberta, did, in committing an assault, cause bodily harm to [A.B.], contrary to

section 267 (

b) of the Criminal Code . [ 7 ] I will review the governing principles and the elements of the offences, the events leading to the discovery of A.B.’s injuries, and the nature of A.B.’s injuries. I will then assess the presentation of A.B.’s injuries and the causation of those injuries. With those assessments in hand, I will determine whether or not S.N.A. is guilty of any charged offence. Table of Contents I. Principles . 5 A. Presumption of Innocence and Proof Beyond a Reasonable Doubt 5 B. Assessment of Testimony . 7 C. Circumstantial Evidence . 8 II. The Offences . 10 A. Failure to Provide Necessaries . 10 1.

Elements of the Offence . 10 2. Aspects of the Actus Reus . 11 3. Aspects of Fault 13 B. Causing a Child to be in Need of Intervention . 14 C. Aggravated Assault 14 D. Assault Causing Bodily Harm .. 16 III. Background: Persons and Events . 17 A. Before March 20, 2016 . 17 1. S.N.A. and D.S. 17 2. A.B. 18 3. No Incidents . 18 4. No Visitors . 18 5. S.N.A. and A.B. 18 6. D.S. 19 B. Washroom Incident, March 20 . 19 C. The Following Week, March 21 to 24 . 21 1. D.S. 21

2. S.N.A. 21 D. Wetaskiwin: March 25 – 27, 2018 . 22 1. S.N.A. and D.S. 22 2. M.A. 22 3. C.A. 23 4. Dr. Stassen – Wetaskiwin Hospital 24 IV. A.B.’s Injuries . 24 A. Expert Witnesses . 24 1. Crown Expert Witnesses . 24 2. Defence Expert 26 B. Ankle Injuries . 26 1. Nature of the Fractures . 26 2. Mechanism of Fractures . 27 3. Age of the Fractures . 28 4. Prevalence of Ankle Fractures Among Children . 28 5. Presentation of the Fractures . 29 C. Left Arm Injuries . 30 1. Nature of the Fractures . 30 2. Mechanism of the Fractures . 30 3. Age of Fractures . 31 4. Presentation of the Fractures . 31 D.

Bone Disease: Osteogenesis Imperfecta . 31 V. Presentation of A.B.’s Injuries . 32 A. Observation Evidence . 32 B. Expert Evidence . 33 C. Assessment 34 VI. The Manner of Causation of A.B.’s Injuries . 35 A. A.B.’s Ankle Fractures . 36 1. Preliminary Matters . 36 2. Dr. Markesteyn’s Testimony and OI 36 3. Crown Experts . 36 B. Assessment: Ankle Injuries . 37 1. Ankle Injuries: OI and the Fall 37 2. Inferences from A.B.’s Ankle Injuries . 39 C. A.B.’s Left Arm Fractures . 40 1. S.N.A.’s Testimony . 40 2. Dr. Markesteyn’s Evidence . 41 3. Crown Experts . 41

D. Assessment: Arm Injuries. 41 VII. Who, if anyone, caused A.B.’s injuries?. 43 A. Scope of Opportunity. 43 B. Excluded Individuals. 43 C. S.N.A.’s Parents. 44 D. D.S. and S.N.A. 44 1. D.S. 44 2. S.N.A. 46 E. Assessment 48 1. Principles Re-Emphasized. 48 2. Third Party Reasonable Doubt 51 3. S.N.A. 52 VIII. Charges. 55 A. Failure to Provide Necessaries. 55 1. Actus Reus. 55 2. Fault: Marked Departure. 58 3. Lawful Excuse. 58 B. Causing a Child to be in Need of Intervention. 59 C. Aggravated Assault 59 D. Assault Causing Bodily Harm.. 62 IX. Verdicts. 63 I. Principles A. Presumption of Innocence and Proof Beyond a Reasonable Doubt [8] Under s. 11(

d) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to bepresumed innocent. The presumption of innocence has two main features. First, the prosecution has the burden of proving the guilt of theaccused and the accused does not have the burden of proving his or her innocence. Second, the prosecution must prove guilt beyond areasonable doubt. [9] S.N.A. is presumed innocent. Two implications follow. First, the burden of proof rests with the Crown and never shifts.S.N.A. bears no burden to prove that she is innocent.

She does not have to prove anything. [10] Second, for S.N.A. to be convicted for an offence she is alleged to have committed, the Crown must establish each element ofthe offence beyond a reasonable doubt. S.N.A. is entitled to an acquittal for an offence if, on all the evidence in the case, there is areasonable inference or a reasonable possibility that an element of the offence has not been established. [11] S.N.A. testified. W(

D) applies: R v W(D), (SCC), [1991] 1 SCR 742. W(D), supplemented by Justice Binniein R v JHS, 2008 SCC 30, sets out the conclusions a trier of fact may reach when considering the totality of the evidence at the end of acase: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, if, after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

Fourth, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

See also R v Thomas, 2012 ONSC 6653 at para 24; R v Nimchuk, (ON CA), 1977 CarswellOnt 980, 33 CCC (2d)209 (Ont CA), Martin JA at para 7; R v Hogg, 2013 PECA 11, affd 2014 SCC 18 at paras 133 and 134 (PECA). [12] I reminded myself of further aspects of proof beyond a reasonable doubt: (

a) when deciding whether the Crown has proven its case beyond a reasonable doubt, the evidence must be considered as a whole. (

b) the reasonable doubt standard applies to elements of the offence or vital issues, including credibility, when testimony conflictsrespecting elements of the offence. (

c) the requirement that the Crown prove its case beyond a reasonable doubt entails that the evidence relied on by the prosecution mustleave no reasonable inference, no reasonable possibility that the accused is innocent. (

d) the standard is not proof beyond any or all doubt. It is not a standard of absolute certainty. The standard excludes all reasonabledoubts about innocence, doubts that are not mere speculation or imaginary or frivolous, or doubts based on sympathy or prejudice: R vLifchus, [1997] 2 SCR 320 at para 31. (

e) a reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36, R v Balla, 2016 ABCA 212 atpara 52. (

f) an accused has no obligation to provide an explanation for inculpatory evidence: R v WT, 2016 ONSC 3943, Hill J at para 139; R vKusk, 1999 ABCA 49 at para 11; R v Ellard, 2003 BCCA 68 at paras 21 and 22; R v Donnelly, (ON SC), Wilson Jat para 194; R v Rodriguez, 2014 ABCA 190 at para 12 (“It was not for the appellant to disprove the Crown’s theory ....”). [13] On this last point, Justice Martin wrote in R v Stevens, (ON CA), 1984 CarswellOnt 1163, [1984] OJ No26, 11 CCC (3d) 518 (Ont CA) at para 114 (CarswellOnt): 114 An accused cannot be convicted upon suspicion, nor upon a thousand suspicions (R. v.

McDonald (1951), (BCCA), 101 C.C.C. 78, at 82). No person is required to explain or deny suspicious circumstances, but where a prima facie case is made out,that is, a case upon which the jury will be warranted in convicting, although they are not required to convict, the accused risks convictionif he does not introduce evidence to explain or contradict the prima facie case. In the famous case of R. v.

Burdett (1920), 4 B. & Ald. 95,Lord Chief Justice Abbott said at pp. 161-62: No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion againsthim, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit ofexplanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction;can human reason do otherwise than adopt the conclusion to which the proof tends?

The premises may lead more or less strongly to theconclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty ofmathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that theconclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, andwho know, that, where reasonable doubt is entertained, it is their duty to acquit …. B. Assessment of Testimony [14] The Crown’s witnesses were Dr.

Stassen, three experts, S.N.A.’s former “common law” partner, D.S., S.N.A.’s mother, andS.N.A.’s father. In addition, some police officers were called as witnesses in a voir dire respecting the admissibility of a recordedinterview of S.N.A. by a police officer. While I found the interview to be admissible, the Crown did not seek to admit the interview asevidence in the trial.

The interview, therefore, along with the other voir dire testimony, was not trial evidence and played no role in mydetermination of the facts. [15] The Defence called two witnesses, S.N.A. and an expert. [16] Some principles respecting the assessment of testimony are as follows: (

a) the same level of scrutiny must be applied to Crown and defence evidence: R v Howe, , Doherty JA at paras 59 - 64;R v Norman, , Finlayson JA at 24 - 25; R v McGown, 2016 ONCA 575 at para 96; R v Schell, 2013 ABCA 4 at para34; R v MJB, 2015 ABCA 146 at para 33. (

b) all, some, or none of the evidence of a particular witness (including an accused) may be accepted, and different weight may beaccorded to different parts of evidence that is accepted: WT at para 125; R v Beharri, 2013 ONSC 7753, Hill J at para 103; Howe at para44; R v REM, 2008 SCC 51 at para 65; R v Francois, (SCC), [1994] 2 SCR 827, at para 14. (

c) evidence, such as testimony, that is wholly disbelieved or not accepted by the trier of fact does not support reasonable doubt justbecause the evidence was admitted: The Queen v Proudlock, (SCC), [1979] 1 SCR 525, Pigeon J at 551; R v JE, 2012ONSC 3373, Code J at para 20. (

d) undue weight should not be placed on the relationship of a witness to the complainant or accused (e.g. parent or spouse); “[i]t shouldnot be assumed that this witness will be untruthful by reason of this relationship:” R v Murray (1997), (ON CA), 115CCC (3d) 225; , Charron J at 8; R v Laboucan, 2010 SCC 12, Charron J at para 11. (

e) if an accused testifies, it cannot be assumed that the accused will lie to secure acquittal – this would violate the presumption ofinnocence: Laboucan at para 12. [17] On this last point, S.N.A. had a constitutional right to testify in her own defence. That right would be rendered a snare and a

delusion if I were to count against her credibility a presumed “motive to lie” to avoid conviction. Indeed, relying on such a presumptionwould be in effect to presume guilt. However, an accused who testifies is not immunized from a finding that he or she lied in testimony,that his or her testimony should not be believed, or that his or her testimony did not raise a reasonable doubt. Any such finding, though,must be based on factors bearing on testimony other than a presumed motive to lie to secure an acquittal. See, e.g., Laboucan at para 20. C.

Circumstantial Evidence [18] The Crown’s case against S.N.A. turned on circumstantial evidence. Reliance on circumstantial evidence does not displacethe burden of the Crown to prove guilt beyond a reasonable doubt.

In R v Dipnarine, 2014 ABCA 328 at para 23, the Court of Appealwrote that “[t]he circumstantial evidence test is simply a category of analysis used to reach a conclusion regarding proof beyond areasonable doubt ….” The “central point” remains “the necessity to find the guilt of the accused beyond a reasonable doubt:” R vTombran (2000), (ON CA), 142 CCC (3d) 380 (Ont CA), quoted with approval in R v Villaroman, 2016 SCC 33,Cromwell J at para 24; and see paras 18-22, 25.

According to Justice Cromwell in Villaroman at para 30, “an inference of guilt drawnfrom circumstantial evidence should be the only reasonable inference that [the] evidence permits;” and at para 35, “[i]f there arereasonable inferences [from the evidence] other than guilt, the Crown’s evidence does not meet the standard of proof beyond areasonable doubt.” [19] But while the reasonable doubt standard concerns the end-state of deliberation, Justice Cromwell’s cautions in Villaromanconcern the process of assessing a type of evidence – circumstantial evidence - in the course of deliberation.

Professor Benjamin Bergerwrote in “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005), 84 Canadian Bar Review 47 at 60 that Accordingly, the purpose of the charge on reasonable doubt is to impart the importance of the presumption of innocence and to describeto the jury the ultimate state of mind consistent with that essential presumption. In contrast, the purpose of the rule in Hodge’s Case is toalert the jury to the dangers associated with a particular kind of evidence [emphasis in original]. The charge explaining reasonable doubt describes a state of mind.

The charge in Hodge’s Case charts out a path of reasoning specific toparticular evidence. And at 61: One describes a state of mind, while the other lays out a process of reasoning. [20] The assessment of circumstantial evidence harbours some dangers, as Justice Cromwell explained in Villaroman: “Theconcern is that the jury may unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the inference that the Crowninvites it to draw;” or “jump to conclusions:” Villaroman at paras 26, 29. The fact-finder should not “too readily [draw] inferences ofguilt:” Villaroman at para 30.

A form of confirmation bias must be avoided. As Professor Berger has warned, fact-finders (and thiswould include judges as much as jurors) should take care not to ignore, discard, or integrate-over contradictory evidence or otherwiseoverlook other subtleties in evidence: Berger, “The Rule in Hodge’s Case” at 52, 60, 61.

This does not (and cannot) mean that evidencecannot be used to support a theory of the case; rather, the point is that evidence should not be used to support a theory of the case withoutdue scrutiny of any tendency of the evidence to falsify or contradict the theory of the case. [21] To ensure both that the burden on the Crown is not reduced by the fact-finder filling in gaps in the Crown’s case and that therequirement of proof beyond a reasonable doubt is respected, a fact-finder must “consider ‘other plausible theor[ies]’ and ‘otherreasonable possibilities’ which are inconsistent with guilt:” Villaroman at para 37. [22] Note that Justice Cromwell referred in Villaroman to other reasonable possibilities.

An accused must be acquitted if there is areasonable doubt. The Court of Appeal pointed to this qualification in Dipnarine at paras 22 and 24: “[c]ircumstantial evidence does nothave to totally exclude other conceivable inferences”; alternative inferences must be reasonable …, not just possible.” Thus JusticeCromwell wrote at para 37 of Villaroman that “the Crown thus may need to negative these reasonable possibilities, but certainly doesnot need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused’: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8;” see also para 50. [23] Put another way, the Crown need not negate “speculative” possibilities or “speculation.” [24] A further aspect of considering circumstantial evidence is that inferences consistent with innocence do not have to arise fromproven facts. The accused bears no burden of proving any fact, let alone as a precondition to supporting inferences of innocence in acircumstantial case: Villaroman at para 35.

But again, evidence wholly disbelieved or rejected cannot support a reasonable doubt. [25] Not only the evidence but a gap in the evidence (an absence of evidence) may support inferences other than guilt. Butinferences must be reasonable given the evidence and the absence of evidence, assessed logically and in light of human experience andcommon sense.

The fundamental issue is whether “the circumstantial evidence, viewed logically and in light of human experience, isreasonably capable of supporting an inference other than that the accused is guilty:” Villaroman at para 38. [26] Finally as regards circumstantial evidence, I have kept in mind that I must assess the Crown’s case and the inferences urgedby S.N.A. in light of all the evidence. I must not isolate elements of the Crown’s case, show that the elements support reasonable doubts,then conclude that reasonable doubt must be found on the whole of the evidence.

In circumstantial cases, the whole may be greater thanthe parts. The interaction between the elements of the case and the sheer improbabilities associated with the co-existence of the elementsof the case with the innocence of the accused must be considered.

The Ontario Court of Appeal put the matter this way in R v Uhrig,2012 ONCA 470 at para 13: [13] When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt,it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof requiredof the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin ... at 361. Individual items of evidence

are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does notfollow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examinedseparately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to theevidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. II. The Offences A.

Failure to Provide Necessaries [27] S.N.A. was charged with failure to provide necessaries under s. 215(2)(a)(ii) of the Criminal Code. 1. Elements of the Offence [28]

Section 215 of the Criminal Code provides as follows: 215

(1) Every one is under a legal duty (

a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years ….

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, theproof of which lies on him, to perform that duty, if (

a) with respect to a duty imposed by paragraph (1)(a) …, (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health ofthat person to be endangered permanently ….

(3) Every one who commits an offence under subsection (2) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years ….

(4) For the purpose of proceedings under this section, … (

b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proofthat the child is his child …. (

d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is notunder a legal duty to provide them is not a defence. [29] The actus reus or act element of this offence has the following elements: (

a) the accused was under a legal duty to provide the necessaries of life to the child pursuant to s. 215(1)(a); (

b) from an objective standpoint or the standpoint of a reasonable person, the accused failed to perform the duty; and (

c) again from an objective standpoint or the standpoint of a reasonable person, this failure endangered the life of the person to whom theduty was owed, or caused or was likely to cause the health of that person to be endangered permanently. These elements are considered sequentially: R v Stephan, 2017 ABCA 380, O’Ferrall JA (dissenting), revd 2018 SCC 21 at para 241(CA) ((Justice Moldaver said, “We are in essential agreement with the reasons of Justice O’Ferrall [dissenting]”).

See also R v JF, 2008SCC 60, Deschamps J (dissenting) at para 66 and Stephan at para 221 (CA). [30] The fault element of the offence (its mens rea) requires proof that the conduct of the accused represented a marked departurefrom the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances: JF at para 67; R v Naglik,

(SCC), [1993] 3 SCR 122, Lamer CJC at 143-4; Stephan at para 261. 2. Aspects of the Actus Reus (

a) Duty to Provide Necessaries [31] The first element of the actus reus, the duty to provide necessaries of life, includes the duty to provide prompt medicalattention: R v Lewis, , 7 C.C.C. 261(Ont CA) (Lewis (1903)); R v Popen (1981), (ON CA), 60 CCC(2d) 232 (Ont CA) at 237; R v Barry, 2004 NLCA 41 at para 24; R v VI, (Ont SC), Trotter J, as he then was, at paras253-255. (

b) Failure to Perform the Duty [32] The second element of the actus reus concerns the “failure” to perform the duty. This omission, this failure to act, musttherefore be identified; the omission must be specified with a degree of particularity: Stephan at para 227. For example, “was the failurea failure to perform a specific act or acts? Or was the failure a general and continuing failure to provide certain necessaries over a periodof time?:” Stephan at para 227.

Not only “what” constituted the omission but “when” the duty should have been performed must bespecified: Stephan at paras 228, 234, 237. [33] Further, the second element of the actus reus requires proof that the failure to perform the duty, the omission, was a failure todo what the ordinary reasonably prudent parent would have done in the circumstances. [34] The trier of fact may use its own experience “to determine what a reasonably prudent parent would have done:” Stephan atpara 230. [35] The determination of what the reasonably prudent parent would have done must be considered by reference to thecircumstances presented to the accused: Stephan at para 235, 237, 257, 258, 269.

In Naglik at 148, Justice McLachlin, as she then was,wrote as follows: [I]n determining what Ms. Naglik “ought to have known”, the trier of fact must determine the conduct of the reasonable person whenengaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include thepersonal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth,inexperience, and lack of education were not suggested on the evidence to deprive Ms.

Naglik of the capacity to appreciate the riskassociated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person. VI at para 118; R v GSJ, 2007 NBPC 14, Ferguson PCJ, as he then was, at para 249. (

c) Endangerment [36] The third element of the actus reus requires proof that the omission produced one of three types of consequences and that areasonable person would have foreseen that the failure to provide necessaries would have produced one of these consequences. Theseconsequences, both caused and reasonably foreseeable, are that the omission • endangered the child’s life, • caused the health of the child to be endangered permanently, or • was likely to cause the health of the child to be endangered permanently.

See Stephan at para 241. [37] All three branches of this element of the actus reus require both that the omission “endangered” the child and that areasonable person would have foreseen that the omission would “endanger” the child. To “endanger” a person means to put the person indanger, that is, to put the person at risk of harm: Barry at para 19. A person may have been “endangered” even though the risk did notmaterialize. Proof of having “endangered” another does not require proof of actual injury or damage.

In R v Thornton (1991), 1 OR (3d)480, [1991] OJ No. 25, (CA), leave app dismissed, (SCC), [1993] 2 SCR 445, Galligan JA wrote atpp 12-13 respecting the “common nuisance” offence that

Section 180 requires that the conduct of a person “endanger” the lives or health of the public. It does not require actual injury or damage.The word “endanger” does not have any special technical meaning. Among the ordinary meanings of that word are the concepts ofexposing someone to danger, harm or risk or of putting someone in danger of something untoward occurring ….

The Thornton explication of “endangers” was adopted for s. 215 purposes in R v Palombi, 2007 ONCA 486, Rosenberg JA at para 14;see also R v Pertab, , 27 CR (6th) 126 (Ont SC), Hill J at para 37. [38] The first branch of this element of the actus reus concerns an omission that put the child at risk of death. The second branchconcerns an omission that caused the child’s health to be at “permanent” risk of harm.

The third branch concerns an omission that didnot actually cause the child’s health to be at permanent risk, but put the child in circumstances “likely” to have caused the child’s healthto be at permanent risk. It concerns the “likelihood of risk,” not the actual creation of risk. Put another way, the third element requiresproof that, as a result of the omission, it was likely (not certain) that the child’s health would be at risk permanently. The third elementinvolves probability at two points.

First, because endangerment must be established, there must be a probability of harm – a risk of harm;second, the conduct need only have “likely” or probably caused the endangerment (the risk or probability of harm).

[ 39 ] Thus, we read in Barry at para 20 : [20] …. Parliament intended that conviction would follow, not only if the parent’s failure to provide necessaries would “likely cause permanent injury to the child’s health”, but if the failure would likely put the child at risk of permanent harm to her health. The new language places a more onerous burden on the parent [emphasis added]. See GSJ at para 247. In Pertab at para 38 , Justice Hill wrote that [38] …. the statute also speaks of the failure of duty as “likely” to cause the health of the person to be endangered permanently ….

Though drawn in the context of a differently worded statute in England respecting provision of the necessaries of life, the following passage from Lord Diplock’s judgment in R. v. Sheppard , [ [1980] 3 All ER 899 (HL) ] at 904, as to the

interpretation of “likely” is apposite to this case: The

section speaks of

an act or omission that is ‘likely’ to cause unnecessary suffering or injury to health. This word is imprecise. It is capable of covering a whole range of possibilities from ‘it’s on the cards’ to ‘it’s more probable than not’; but, having regard to the ordinary parent’s lack of skill in diagnosis and to the very serious consequences which may result from failure to provide a child with timely medical attention, it should in my view be understood as excluding only what would fairly be described as highly unlikely. 3.

Aspects of Fault [ 40 ] Justice O’Ferrall cautioned in Stephan at para 245 that it [is] not sufficient for the Crown to prove that reasonably prudent parents … would have done things differently …. The Crown had to prove beyond a reasonable doubt that the conduct of the [accused] represented a marked departure from that of the reasonably prudent parent.

A “marked departure” means more than simple inadvertence, thoughtlessness, error of judgment, or carelessness.” The degree of negligence must demonstrate a criminal quality, a degree of negligence meriting criminal punishment: Stephan at paras 249, 264; JF at para 67. In determining whether the accused’s negligence was a marked departure from the conduct of a reasonably prudent parent, the specific risk posed by the accused’s conduct must be identified and considered: Stephan at para 252-254.

A marked departure is not simply failing to do what a medical doctor would have done if presented with the child’s symptoms: Stephan at paras 251, 254. [ 41 ] It follows that the foreseeability of harm or danger, in the circumstances, must be considered when assessing marked departure. Thus Stephan at para 266: Foreseeability is engaged because the standard is one of the reasonably prudent parent. To reiterate, the circumstances which presented themselves to the accused affect the determination of what was or was not foreseeable.

Hindsight is not foreseeability …. [I]t [is] critical that the jury be carefully instructed to consider the circumstances as they unfolded and what the accused did to address those circumstances as they unfolded.

The instructions need to address the facts as they presented themselves to the accused, what the accused did in response to those facts and when they did it. [ 42 ] A “marked departure” from what a reasonable parent would do in the same circumstances could be established if the Crown proved that “the accused was aware of a danger or risk to the health or safety of the child, but ignored that risk;” or if the Crown proved that the accused “failed to direct his or her mind to the risk to the health or safety of the child which a reasonable parent would have understood:” Stephan at para 263. B.

Causing a Child to be in Need of Intervention [ 43 ] S.N.A. was charged with causing a child to be in need of intervention, contrary to s. 130(

a) of the Child Youth and Family Enhancement Act .

Section 130 provides as follows: 130 Any person who (

a) causes a child to be in need of intervention … is guilty of an offence and liable to a fine of not more than $25,000 or to imprisonment for a period of not more than 24 months or to both a fine and imprisonment. [ 44 ] Under s. 1(1)(d), “‘child’ means a person under the age of 18 years ….” Under s. 1(2), 1(2) For the purposes of this Act, a child is in need of intervention if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any of the following: …

(

c) the child is neglected by the guardian; (

d) the child has been or there is substantial risk that the child will be physically injured … by the guardian of the child; (

e) the guardian of the child is unable or unwilling to protect the child from physical injury or sexual abuse; … (

h) the guardian of the child has subjected the child to or is unable or unwilling to protect the child from cruel and unusual treatment or punishment. [ 45 ] Under s.1(2.1), 1(2.1) For the purposes of subsection (2)(c), a child is neglected if the guardian (

a) is unable or unwilling to provide the child with the necessities of life, (

b) is unable or unwilling to obtain for the child, or to permit the child to receive, essential medical, surgical or other remedial treatment that is necessary for the health or well-being of the child, or (

c) is unable or unwilling to provide the child with adequate care or supervision. C. Aggravated Assault [ 46 ] S.N.A. was charged with aggravated assault under s. 268 of the Criminal Code . [ 47 ] As Justice Rosenberg wrote at para 28 of Palombi , “[a]ny intentional application of force – even relatively minor force – without the consent of the victim, is an assault unless some defence applies.” Assault is defined in s. 265 of the Criminal Code , as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly ….

(2) This

section applies to all forms of assault …. [ 48 ]

Section 268 provides that 268

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Aggravated assault is an assault that produces specified aggravating consequences. [ 49 ] The actus reus of assault requires proof that an accused (

a) applied force to another person (

b) without consent (i.e., legally recognized consent). [ 50 ] The mens rea of assault requires proof that the accused (

c) intended to apply force to the other person (

d) knowing that there was no consent to the application of force or being subjectively reckless as to whether there was no consent to the application of force. [ 51 ] With respect to the aggravating circumstances, the Crown must prove that the force the accused applied to the complainant wounded, maimed, or disfigured the complainant or endangered the complainant’s life.

[52] The Crown need not prove that the accused intended or subjectively foresaw that the application of force would wound,maim, or disfigure the complainant, or endanger the complainant’s life.

Rather, the Crown must prove that a reasonable person, in thecircumstances, would have realized that the force the accused applied would put the complainant at risk of suffering some kind of bodilyharm (i.e., non-trivial, non-transitory bodily harm): R v Williams, 2003 SCC 41 at para 22; R v Godin, (SCC), [1994] 2SCR 484 at 485; R v SEL, 2012 ABQB 190, Hillier J at para 95; R v Dennington, 2017 ABPC 4, Pharo PCJ at para 46; Donnelly at para209. [53] Under s. 2 of the Criminal Code, “bodily harm” means any hurt or injury to a person that interferes with the health or comfortof the person and that is more than merely transient or trifling in nature. [54] Judge Semenuk summarized the authorities respecting the aggravating circumstance of “wounding” in R v Reid, 2013 ABPC228 at para 26: a wound, in law, contemplates a tissue injury that results in permanent damage or long-lasting dysfunction.

It includes injuries that resultin serious external and/or internal bleeding and/or other serious internal tissue damage. See also R v Bellerose, 2017 ABPC 295 and R v AH, 2016 ABPC 6; SEL at para 96 (“Conventionally, the term “wound” has been usedto indicate skin was broken and bleeding ensued, though our Court of Appeal has also concluded a blow that broke an eardrum woundeda 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, 2005ABQB 106 at para. 15, 369 A.R. 24, Martin J. (as he then was) suggests ‘wounding’ involves a permanent consequence.”); para 97 (“Iagree with Justice Martin’s approach that ‘wounding’ involves permanent damage. It does seem that the requirement that skin be brokenand bleeding ensue is artificial. Indeed, that has already been recognized by the Alberta Court of Appeal in R. v. Littletent, an eardrum isobviously not skin. An appropriate modern definition of “wounding” is tissue injury that results in permanent damage or dysfunction, seefor example R. v.

Vincent, 2011 ONSC 139 at paras. 7-17.”) [55] However, in Beharri, Justice Hill wrote as follows at para 121: [121] Although it was held in R. v.

S.E.L., 2012 ABQB 190, at paras. 96-7, in respect of wounding, that because a “requirement that theskin be broken and bleeding ensue is artificial”, “[a]n appropriate modern definition of “wounding” is tissue injury that results inpermanent damage or dysfunction”, this approach of requiring permanence of the injury is, in my view, better left to the notions ofmaiming or disfiguring. [56] Respecting the “maims” aggravating circumstance, Justice Marceau wrote in R v Dosser, 2009 ABQB 617 at para 13 that a maim can include an injury that is not permanent, and only temporarily deprives the victim of the use of part of his body, such as abroken bone.

Schultz [R v Schultz (1962), (AB CA), 133 CCC 174 (Alta CA)] is binding upon me, and Schultzdefines a maim to include a broken leg. I am therefore satisfied that the child’s broken femur meets the definition of maiming. The actusreus of aggravated assault is made out. [57] Disfigurement and endangerment of life were not in issue in this case. D. Assault Causing Bodily Harm [58] S.N.A. was also charged with assault causing bodily harm under s. 267 of the Criminal Code. [59]

Section 267 of the Criminal Code provides that 267 Every one who, in committing an assault, … (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [60] Again, s. 2 provides that “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of theperson and that is more than merely transient or trifling in nature. Bodily harm includes scrapes, lacerations, and bruises, and musclesoreness: R v Moquin, 2010 MBCA 22 at para 25. The injury does not have to interfere in a grave or substantial way with the physicalintegrity or well-being of the complainant: Moquin at para 28.

Neither is a functional impairment a necessary component a necessarycomponent of bodily harm, although it may accompany bodily harm: Moquin at para 31. An injury need not be of long duration toqualify as bodily harm. The injury may heal over a short period and still amount to bodily harm: R v Garrett, 1995 ABCA 281 at para 9.In R v Dixon (1988), 42 CCC (3d) 318, (BCCA), Justice Esson in his concurring decision wrote that the “transientand trifling” qualifications “import a very short period of time and an injury of very minor degree which results in a very minor degree ofdistress.” A good

summary of the approach to “bodily harm” is set out in R v Bulldog, 2015 ABCA 251 at para 44: [44]

Section 2’s definition of “bodily harm” states a low threshold: R v Dorscheid, 1994 ABCA 18 at para 11, [1994] AJ No 56 (CA).It means something more than “a very short time period and an injury of very minor degree which results in a very minor degree ofdistress”: R v Dixon …. Not surprisingly, then, indisputably minor injuries have been found to constitute “bodily harm”: R v Rabieifar,[2003] OJ No 3833 (QL) (CA) (scratches and abrasions of less than one inch on the complainant’s body, and some bruising and swellingon her face, thigh and hand); R v CK, 2001 BCCA 379 at para 3, [2001] BCJ No 1119 (QL) (small bruise on the complainant’s right

calf, a small anal tear, and a deviated septum that resulted in some bruising and swelling, all of which was said by a physician to be “not serious and … expected to resolve itself within a few days”); R v Moquin … (several bruises lasting 11 days, a sore hand and a sore throat); and Dorscheid (scrapes, lacerations and bruises). III. Background: Persons and Events A. Before March 20, 2016 1. S.N.A. and D.S. [ 61 ] S.N.A. is the mother of A.B. She was about 20 when she gave birth to A.B.

The biological father of A.B. had no role in these proceedings or in the material events. [ 62 ] S.N.A.’s parents are M.A. and C.A., who live in Wetaskiwin. [ 63 ] S.N.A. and A.B. had lived with S.N.A.’s parents. A.B. slept in a crib in S.N.A.’s room. [ 64 ] S.N.A. met D.S. online in the summer of 2015. They began a relationship that summer. [ 65 ] D.S. lived in a townhouse in Edmonton with his father, K.S. During the material times, D.S. had shared parenting of his son C.D., a child from another relationship. D.S. had parenting time every other week. C.D. was about 4 months younger than A.B.

C.D. was the bigger child. At the beginning of February 2016, C.D. weighed about 35-40 lbs, while A.B. weighed about 22 lbs. [ 66 ] S.N.A. moved into the D.S. and K.S. home in late September or early October 2015. A.B. was about 2 years old at this time. [ 67 ] The home had three levels. The kitchen and living room were on the second or main level. Downstairs was the first level, the basement. The third level, upstairs from the main level, had bedrooms. There were about 12 steps from the basement to the main level, and 12 steps from the main level to the third level.

On the third floor, S.N.A. and D.S. shared one bedroom. K.S. occupied a second bedroom. C.D. occupied the third bedroom. D.S. testified that when S.N.A. moved in, A.B. shared the bedroom with C.D. D.S. testified that the children disturbed each other and this affected their sleep. S.N.A. denied that the children ever slept in the same room, although she commented that had they slept in the same room, they “wouldn’t have slept at all.” Regardless of whether or not there was period of sharing an upstairs room, A.B. slept in the basement or bottom level. The basement was carpeted and developed.

A.B. slept in her playpen. [ 68 ] The playpen had no bars. The sides were mesh. It had a padded bottom. [ 69 ] D.S. and S.N.A. confirmed that A.B. could be heard when she was in the basement. In cross-examination, S.N.A. acknowledged that when A.B. was in the basement, there was a considerable distance between A.B. and everyone else. [ 70 ] S.N.A. said that there was nowhere in the home for her to put A.B. except the basement. She “felt bad” but she had “no real say in the matter.” [ 71 ] K.S. travelled frequently and was out of the country between February and late March 2016.

When asked about whether A.B. might have slept in K.S.’s room when he was away, S.N.A. stated that his room had been filled with boxes. She’d asked D.S. to talk to his father about A.B. staying in his room when K.S. was away, but D.S. told her no, don’t even ask. 2. A.B. [ 72 ] In February and March 2016, A.B. was 2 years old. According to S.N.A., A.B. was healthy and active, with some exceptions considered later. A.B. was a good baby, quiet and happy except when she was teething. When teething, she wouldn’t stop crying from the pain.

When she was teething, S.N.A. knew she was in pain, and put A.B. in bed with her. A.B. would also cry when she was hungry or tired. M.A. testified that “if she’s not feeling well, she’s a crier.” A.B. had a “displaced anus.” She sometimes became very constipated. S.N.A. would have to manually remove material. A.B. would scream when this was done. [ 73 ] According to S.N.A., when A.B. was sick, she just “wanted to be left alone.” She’d lay on the couch, cuddle her blanket, and not want to play. She’d watch TV and rest. [ 74 ] S.N.A. testified that prior to events in March 2016, A.B. was walking normally.

She had been walking and running for over a year. She liked to explore and was very curious. [ 75 ] M.A. confirmed in her testimony that she and C.A. visited S.N.A. and A.B. while they lived with D.S.. During M.A.’s visits, A.B. showed no sign of sickness or illness that was out of the ordinary. She could walk and run. [ 76 ] M.A. and C.A. had seen S.N.A. and A.B. between 2 to 6 weeks before the events of the weekend of March 25, 2016. A.B. was fine when they last saw her before that weekend. [ 77 ] A.B. talked but could only put one or two words together.

S.N.A. testified that A.B. did not verbalize her pain in the sense of using words to describe it. Instead, she’d whine or cry. 3. No Incidents

[ 78 ] Before March 27, 2016, A.B. was not involved in a car accident. She did not fall from a significant height. S.N.A. did not observe her to have fallen out of her playpen. S.N.A. never saw A.B. climb out of the playpen. Except for the incident in the week preceding March 27, 2016, S.N.A. did not observe A.B. to have injured herself. 4.

No Visitors [ 79 ] Aside from S.N.A.’s parents (and perhaps one friend of S.N.A.’s mother who visited with her), there were no visitors at S.N.A.’s residence during the weeks preceding March 27, 2016. [ 80 ] S.N.A. confirmed that she and D.S. did not use babysitters besides S.N.A.’s parents. 5. S.N.A. and A.B. [ 81 ] S.N.A. was a stay-at-home mom. She had no work outside the home. Her days were spent looking after A.B. and, during D.S.’s parenting time, looking after C.D. too. She also looked after C.D. for C.D.’s mother during the mother’s parenting time, as this was less expensive than day care.

S.N.A. was otherwise responsible for household matters. [ 82 ] D.S. trusted S.N.A. enough to look after his son. [ 83 ] According to D.S., S.N.A. did not drive. Regardless, he used the only available vehicle to drive to and from work. S.N.A. did not have access to a vehicle. [ 84 ] In the weeks preceding March 27, 2016, S.N.A. had gone to the grocery store and to the park with A.B., without incident. 6. D.S. [ 85 ] D.S. was working two jobs during the period covered by the Indictment. [ 86 ] He left home for work at a tire shop at about 7 a.m. He worked from 7:30 a.m. to 6 – 6:30 p.m., sometimes later.

On Mondays, Wednesdays, and Fridays, he also did cleaning at a drug store. He got home about 9:30 – 10 p.m. on these days. On Tuesdays and Thursdays he got home at about 6:45 p.m. [ 87 ] Usually the children were still asleep when he left for work. On Mondays, Wednesdays, and Fridays, they were asleep by the time he returned. He only saw the children Tuesday and Thursday evenings and weekends.

On weekends, D.S. looked after C.D. for the most part, while S.N.A. looked after A.B. [ 88 ] D.S. testified that S.N.A. was responsible for A.B.’s medical care. [ 89 ] D.S. referred to one incident in which A.B. may have climbed out of her playpen. She ended up at D.S. and S.N.A.’s room. He did not see how she got there. He suspected that his father, who was home at the time, had put her there. There were no other instances of A.B. even potentially having climbed out of her playpen.

There was no recurrence of A.B. appearing unexpectedly at D.S.’s bedroom door. [ 90 ] D.S. recounted an incident that occurred around early March. He saw A.B. on the couch (a futon, in fact), favouring her left side, her left side elbow and wrist. A few days before he saw S.N.A. grab A.B. by her left arm, jerking her upwards with “aggressive speed.” Some juice had spilled and S.N.A. was pulling A.B. away from the spreading juice. A.B. started crying. She cried for 10-15 minutes. S.N.A. picked her up, put her on the couch, then walked away. [ 91 ] D.S. said that he talked to S.N.A. about this incident.

He told her this was “not the best way to deal with the situation.” But he did not want to tell her how to parent, since “people can be very defensive.” B. Washroom Incident, March 20 [ 92 ] S.N.A. and D.S. recounted an incident that occurred on Sunday, March 20, 2016. Their accounts differed on some details but were largely consistent. [ 93 ] During the two-week period before March 20, A.B. had suffered from a cold. She had no fever, but did have a cough. She had been given non-prescription medicine. She had been walking.

D.S. had been quite ill with flu and had taken off at least a week from work (according to S.N.A., 8 or 9 days). C.D. had croup. [ 94 ] By March 20, A.B. was starting to get better. According to S.N.A., March 20 was A.B.’s “best day of getting better.” [ 95 ] Between about 7 – 7:30 p.m. on March 20, D.S. and S.N.A. bathed the children in the tub in the third level washroom. D.S. was in the washroom with C.D. He saw A.B. walk in. He said that she was “unsteady, not stable;” she “kind of stumble[d].” He attributed her gait to her being ill.

S.N.A. bathed A.B., who was “fussy” and “screaming.” D.S. said “she didn’t want to have a bath.” S.N.A. confirmed that A.B. walked to the bathroom but she was unsteady, wobbling. S.N.A. said she was grumpy. [ 96 ] D.S. took C.D. from the tub and dried him by the sink. A mirror was in front of the sink. In the mirror, he saw S.N.A. take A.B. from the tub and put her on the closed seat of the toilet beside the bathtub. The toilet seat was covered with fabric. This matches S.N.A.’s account. [ 97 ] D.S. then heard a noise. He immediately looked back to see A.B. on the floor. She was screaming.

D.S. did not see A.B. fall but he said he did see S.N.A. reach out to catch A.B.’s head so it did not hit the floor. D.S. said that A.B. landed on her knees. Her elbows

and palms of her hands were on the floor. The tops of her feet were on the floor (the soles of her feet were up). In his police statement, D.S. said that he didn’t know how her feet landed. [ 98 ] S.N.A.’s account had similar features. After she put A.B. on the toilet seat, S.N.A. reached for a towel. A.B. then leaned forward, and began to fall headfirst to the floor. S.N.A. caught A.B.’s head. A.B.’s left foot hit a plastic garbage pail near the toilet. A.B.’s ankles “fell on the floor, landed on the floor.” The inner sides of her ankles hit the floor. Her legs were spread; the ankles bent inwards.

She landed “like a frog.” S.N.A. stated that A.B.’s ankles hit the floor really hard. Her ankles “got the worst of it.” [ 99 ] D.S. said that S.N.A. said “F*, [A.B.].” He did not mention hearing this in his police statement. In his testimony in chief, D.S. said that S.N.A. was “frustrated” with A.B. In cross-examination, he admitted that what he heard was consistent with S.N.A. having been surprised or panicked by A.B.’s fall. S.N.A. claimed that she only yelled A.B.’s name as she fell. In cross-examination, S.N.A. testified that when A.B. fell she felt frustrated and upset. A.B. had been grumpy during the bath.

After A.B. fell, she was frustrated “a little bit.” [ 100 ] In D.S.’s telling, S.N.A. picked A.B. up and took her downstairs to the main floor where she dried her. A.B. cried for 5-10 minutes. S.N.A. let A.B. watch TV for a few minutes, then, within about 25 minutes from leaving the bathroom, put her to bed downstairs. This matched S.N.A.’s account. [ 101 ] According to S.N.A., after A.B. fell, S.N.A. picked her up. A.B. grabbed S.N.A.’s hair. S.N.A. said she got “frustrated and scared.” After falling, A.B. screamed and cried for about 10 minutes.

In cross-examination S.N.A. confirmed that A.B. screamed louder than when she was teething. S.N.A. took her downstairs to the main floor to wait for her to calm down. S.N.A. then put her to bed. She did not put pajamas on her but a nightgown. She didn’t disturb her feet. She said that A.B. “already wasn’t walking.” In cross- examination, S.N.A. testified that A.B. “didn’t want me to touch her feet.” When asked in cross-examination whether A.B. cried when S.N.A. touched her feet, S.N.A. said “very little.” [ 102 ] According to S.N.A., A.B. settled down fairly quickly.

S.N.A. didn’t think anything serious had occurred. She thought A.B. was just fussing. S.N.A. believed that A.B. was scared. S.N.A. said that A.B. slept through the night. She could not recall whether she gave A.B. medication. [ 103 ] D.S. testified that because A.B.’s crying stopped, he assumed that nothing bad had happened to her, that she was just scared. C. The Following Week, March 21 to 24 1. D.S. [ 104 ] The following Tuesday or Thursday, D.S. noticed that A.B. was not willing to walk. He was “pretty sure” it was Thursday. [ 105 ] He and S.N.A. tried to put A.B. on her feet.

When on her feet, D.S. testified that she looked like she was in pain. She went to her knees. She crawled back to the couch. D.S. testified that he asked S.N.A. what was going on with A.B. D.S. testified that he checked A.B.’s legs when she was on the couch. He didn’t see any bruising. He didn’t feel any swelling. She was not crying. In cross- examination, he confirmed that things “looked completely normal.” She didn’t pull away. She didn’t scream. There were no tears. [ 106 ] D.S. testified to an incident in which A.B. crawled onto to the couch/futon. She crawled to the couch.

She put her hands up, then her right knee up, then her left knee up. She did not stand. The couch was some 30-40 cm high. [ 107 ] D.S. testified that he had encouraged S.N.A. to take A.B. to the doctor. He could not take her because of work. Because S.N.A. did not drive and they only had one car, he told her to walk to the doctor, putting the children in a wagon. He told her he’d give her money to get to the doctor. 2.

S.N.A. [ 108 ] S.N.A. testified that on Monday morning A.B. was “acting grumpy”, “worse than the day before,” she was “still whining.” “She didn’t want me near her ankles” but she was not crying. [ 109 ] A.B. couldn’t walk. Her legs couldn’t bear weight. A.B. didn’t walk on Monday, Tuesday, Wednesday, Thursday, or Friday. In cross-examination, S.N.A. confirmed that A.B. was crawling but with her feet in the air (as D.S. had noticed). [ 110 ] S.N.A. said that “I thought something was wrong but I didn’t think she was in a lot of pain.” She did not suspect that something was seriously wrong.

She thought A.B. was just weak and sick. [ 111 ] S.N.A. looked at her ankles and tried to get A.B. to walk. There was nothing visible. The ankles looked normal. S.N.A. saw no swelling or bruising. She didn’t think A.B. was in pain. She “applied pressure to her feet” to try to get her to stand and walk. She tried to get A.B. to walk on Tuesday – when she said D.S. was home – Wednesday and Thursday, and maybe on Monday as well.

Her account of trying to get A.B. to walk when D.S. was there was similar to his account. [ 112 ] S.N.A. told her mother that A.B. was not feeling good, she was not walking, and she didn’t know what to do. She sent a text and talked to her mother by telephone. [ 113 ] Her mother had told S.N.A. to take A.B. to the doctor earlier, before her mother knew that A.B. couldn’t walk. S.N.A. told her mother that she took A.B. to the doctor, but she did not take A.B. to the doctor. S.N.A. said “I didn’t think it was anything serious.” She claimed that she lied to her mother because she didn’t want her mother to worry.

She told this to her mother after the March 20 incident, on the Wednesday following. [ 114 ] M.A. testified that she and S.N.A. had talked on the phone on Monday. S.N.A. told her mother that C.D. had croup; everyone

had a cold and they were all trying to recover. They talked again on Wednesday, when A.B.’s weekend visit to her grandparents was worked out. S.N.A. told her mother that A.B. was sick. She said that A.B. didn’t want to walk. S.N.A. did not explain. M.A. assumed that it was because A.B. was sick. M.A. asked whether A.B.’s feet were bruised, whether there was anything out of the ordinary. S.N.A. said A.B.’s feet looked ok. S.N.A. told her mother in their Wednesday call that she had taken the children to the doctor on Monday. She told her mother that A.B. did not have croup.

That, said M.A., was what she (M.A.) was worried about. D. Wetaskiwin: March 25 – 27, 2018 1. S.N.A. and D.S. [ 115 ] On March 25, 2016, D.S. and S.N.A. took A.B. to her parents’ home in Wetaskiwin. The plan was to have A.B.’s grandparents watch her until Sunday. D.S. did not have parenting time with C.D. that weekend, so this would be an opportunity for S.N.A. and D.S. to have some time away from work and the children. [ 116 ] According to S.N.A., A.B. had been “crying a little bit.” She did not think A.B. was in pain. A.B. still was not walking.

S.N.A. testified, “I thought she was feeling better.” [ 117 ] D.S. came home early Friday night. [ 118 ] S.N.A. had dressed A.B. for the trip. She put rubber boots on A.B. The boots were “starting to get small but still fit her.” It was a “bit of a struggle” to get the boots on. She used “some force” because the boots were “a bit snug.” S.N.A. said that A.B. “didn’t want them on at all.” A.B. was not crying. S.N.A. did not see any swelling or bruising on A.B.’s legs. Her legs looked normal. [ 119 ] They arrived at Wetaskiwin at about 7 p.m.

There were no issues on the drive to S.N.A.’s parents. [ 120 ] S.N.A. carried A.B. into the house. A.B., according to S.N.A., was just in a grumpy mood. She didn’t have a lot of energy. She laid on the couch to rest. [ 121 ] D.S. testified that he “explained what was going on.” He told the grandparents about the incident in the bathroom that had occurred about 5 days before. He said that A.B. had not been walking since then.

He told them he didn’t know if A.B. was still sick with the flu. [ 122 ] S.N.A. testified that she told her mother that A.B. was still sick and not walking: she said “maybe you could figure it out, I don’t know what’s wrong.” [ 123 ] S.N.A. testified that A.B. was crying “a little bit.” S.N.A. did not think she was in pain. [ 124 ] According to S.N.A., she and D.S. were at her parents’ home for only about 10 minutes. 2. M.A. [ 125 ] When S.N.A. and D.S. dropped off A.B., M.A.’s observation was that A.B. “looked like she’d been very sick.” She was not walking. She was not crying.

M.A. said “they came and put her on the couch” – or M.A. herself may have put A.B. on the couch. S.N.A. said that A.B. was still not walking. M.A. and S.N.A. did not have any discussion about whether A.B. had been taken to see a doctor. M.A. said that she’d “check it out, have a look.” She did, after S.N.A. and D.S. left. [ 126 ] M.A. said that A.B. was “just quiet.” She looked tired. She looked at A.B.’s feet. She didn’t see anything – “no bruising, no swelling, nothing looked out of place.” She did touch A.B.’s feet.

A.B.’s reaction, before M.A. touched her feet was to “push” or reach toward her feet, “being protective of them.” [ 127 ] The remainder of Friday evening they watched TV and read some books. M.A. and A.B. slept together. It was a “sick child night.” A.B. would wake up crying, then go back to sleep, off and on until morning. M.A. gave her Advil or Tylenol. [ 128 ] In the morning A.B. still did not want to walk. [ 129 ] M.A. was concerned that A.B. was not eating or drinking much. [ 130 ] On Saturday, A.B. cried during the day at times.

She was not walking. [ 131 ] On Saturday night, M.A. saw bruising on A.B.’s left ankle – “a little light bruise.” M.A. checked her legs. She noticed that the left ankle was swelling a bit – “not really swollen, a little puffy.” [ 132 ] On Saturday night, M.A. went to bed early. C.A. woke her. He said “that’s it – we got to take her to the hospital.” They did. This was about 1:00 a.m. A.B. was crying. [ 133 ] M.A. denied that she had ever done anything to hurt A.B. 3.

C.A. [ 134 ] S.N.A.’s father C.A. confirmed in his testimony that he and M.A. had visited S.N.A. and A.B. between two weeks and a month before March 25. A.B. was fine then. She could walk and run. [ 135 ] S.N.A. and D.S. brought A.B. to M.A. and C.A.’s home. A.B. appeared to be “a little out of sorts.” “She was in pain.” C.A.

realized this about half an hour after S.N.A., D.S., and A.B. had arrived at his home. A.B. was not walking. She was not crying. She stayed on the couch, watching T.V. or being read to by her grandparents. C.A. looked at her legs. He said that “her legs didn’t look bad, not bruised or marked up or anything.” Her legs, though, “were a little swollen.” She just laid there. She was not moving her legs.

She “grabbed her legs a little bit – not too much.” He said that “being in pain she couldn’t move around.” [ 136 ] C.A. testified that on Saturday she “laid there in pain most of the day.” When asked by the Crown how he knew she was in pain, he said it was because she wouldn’t eat. He said she was in pain from her legs. She wouldn’t eat because of that. He did not recall her crying.

He reiterated that she was not moving, her legs were swollen “a bit.” In cross-examination, he said that he checked her legs on Saturday rather than Friday. [ 137 ] He did not take her to the hospital that afternoon or early in the evening because he did “not want to cause alarm at that point.” He said “there was just a lot of crying and being in pain.” [ 138 ] He talked to M.A.

They “couldn’t figure out why her legs would be swollen like that and why she’d be in so much pain.” They came to no conclusion about “why her legs were so sore and a little bit swollen.” [ 139 ] C.A. said that A.B. slept on the couch on both Friday March 25 and Saturday March 26. I find that his memory failed him on this point. M.A. had testified that she had slept with A.B. on the Friday night. It was a hard night, since A.B. kept waking up and crying before going back to sleep. This evening would have made an impression and I find that M.A.’s memory of the sleeping arrangements on March 25 is accurate.

Moreover, it makes sense that the next night she slept alone in her room upstairs while C.A. kept an eye on A.B. M.A. needed some rest. And furthermore, the time C.A. had with A.B. on Saturday provided the further information C.A. needed to decide that he and M.A. needed to take A.B. to the hospital (M.A. had confirmed that this was C.A.’s decision). [ 140 ] A.B. was crying Saturday night, but not continuously.

When asked by the Crown why he came to the conclusion to take her to the hospital, C.A. said because “she was in major pain.” She was crying before she was taken to the hospital. [ 141 ] C.A. denied that any incidents occurred at his home over the weekend in question that would have resulted in injury to A.B. He denied having hurt or injured A.B. 4. Dr. Stassen – Wetaskiwin Hospital [ 142 ] Dr. Linda Stassen was working in the Emergency Department of the Wetaskiwin Hospital on March 27, 2018. A.B. was brought to Emergency by her grandparents. At about 1 a.m., Dr. Stassen saw A.B. Dr.

Stassen testified that she was not interacting. She was not smiling. She was withdrawn. Dr. Stassen saw that her ankles were bruised and swollen. When Dr. Stassen touched her ankles, A.B. moaned and withdrew her legs a bit. She did not cry. She did not use any words. Dr. Stassen had A.B.’s ankles X-rayed. The X-rays disclosed fractures. Dr. Stassen gave A.B. morphine and anti-nausea drugs and “splinted” her legs with partial casts. Dr. Stassen contacted an Emergency doctor at the Stollery Children’s Hospital at the University of Alberta Hospital in Edmonton. EMS took A.B. to Stollery Emergency. IV.

A.B.’s Injuries [ 143 ] Further X-rays of A.B. were taken at the Stollery. The X-rays disclosed that both of A.B.’s ankles were fractured. In addition, A.B. also had fractures to her left humerus and left radius. These were older, healed fractures. [ 144 ] In this section, I will discuss the evidence relating to A.B.’s injuries. In the sections that follow, I will address the inferences and conclusions I have drawn about the injuries. A. Expert Witnesses 1. Crown Expert Witnesses [ 145 ] Three expert witnesses testified for the Crown respecting A.B.’s injuries – Dr. Marc Moreau, Dr. Jacob Jaremko, and Dr.

Lionel Dibden. [ 146 ] Dr. Moreau holds a BA ( Cum Laude ) from Laval University (1969) and an MD from the University of Alberta (1973). He did a Residency with a specialty in pediatrics at the University of Montreal Cours Edouard Samson (1973-74) and held Fellowships at the Shriner’s Hospital in Montreal in pediatric orthopedics (1977) and at the Alfred I duPont Institute, Wilmington, Delaware (1978-79). After serving in positions in Quebec hospitals, he came to Edmonton in 1979.

His positions have included Pediatric Orthopedic Surgeon, University of Alberta Hospital (1981 – present), Consulting Orthopedic Surgeon, Grey Nuns Hospital (November 1993-present), Acting Chief – Pediatric Surgery, Children’s Health Centre Edmonton (July 1993 – 1996),

Section Head – Pediatric Surgery, Children’s Health Centre Edmonton (1996-98), Pediatric Surgical Specialty Lead for Orthopaedic Surgery, Stollery Children’s Hospital (January 2010 – present). After serving as a Clinical Instructor and Associate Clinical Professor, he has been a Clinical Professor with the University of Alberta Faculty of Medicine & Dentistry since 1993. His research has focussed on the treatment and assessment of scoliosis. He has been awarded many research grants.

He has delivered hundreds of presentations and is a contributing author for over 70 peer-reviewed publications, 45 published conference proceedings, and many other publications. He has seen thousands of fractures in children. [ 147 ] Dr. Moreau was qualified as an expert in pediatric orthopedics, particularly respecting the assessment and

interpretation of fractures and orthopedic conditions in children. Dr. Moreau had reviewed X-rays of A.B. taken at the Wetaskiwin Hospital and the Stollery, as well as the report of Dr. Jaremko. [ 148 ] Dr. Jaremko holds a combined MD-PhD in Biomedical Engineering and he is a licenced radiologist. After completing a BSc in

Civil Engineering in 1996, he was awarded his PhD (Biomedical Engineering) and MD degrees from the University of Calgary (2002 and 2003, respectively). He won the Medal of the Governor General of Canada in 1996, on graduation from his BSc program. He was awarded a CIHR MD-PhD Studentship providing six years of funding, from 1997 – 2003. In 2001 he was awarded the AHFMR Lionel McLeod Research Scholarship.

In 2003 he did a Residency in Diagnostic Radiology at the University of Alberta (2003 – 2008), a Fellowship in Pediatric Radiology at the Royal Children’s Hospital, Melbourne, Australia (2009 – 2010), and a Fellowship in Musculoskeletal Radiology at the Massachusetts General Hospital, Harvard University, Boston (2010-11). He became an Assistant Professor in the Department of Radiology and Diagnostic Imaging of the University of Alberta Faculty of Medicine & Dentistry in 2011, and in 2011 was named to the Capital Health Chair in Diagnostic Imaging at the University of Alberta.

He is also an Adjunct Assistant Professor with the Department of Biomedical Engineering of the University of Alberta Faculty of Medicine & Dentistry. His research focuses on applied clinical pediatric and musculoskeletal radiology. He has been Principal Investigator or Co-Investigator for 23 competitive grants. He is a contributing author to 88 peer-reviewed publications. He has given 7 invited presentations. [ 149 ] Dr. Jaremko was qualified as an expert in the analysis and

interpretation of X-rays and radiology imaging, and the mechanism and timing of injuries both acute and chronic. Dr. Jaremko never met A.B. He reviewed X-rays or radiographs provided by Wetaskiwin Hospital and X-rays done at the U of A Hospital. [ 150 ] Dr. Dibden received his medical degree in 1978 from the Medical School of the University of Witwatersrand in the Republic of South Africa.

Following internship and practice in South Africa and London, England, he became a Pediatric Resident with the Department of Pediatrics, University of Alberta in 1983, Chief Resident of that Department from 1985 – 86, and a Clinical Fellow with the Division of Adolescent Medicine, Hospital for Sick Children, Toronto, from 1986 – 1988. Following appointments as a Clinical Lecturer (1989-90) and Assistant Clinical Professor (1990-2001), in 2001 he became an Associate Professor with the Department of Pediatrics, Faculty of Medicine & Dentistry, University of Alberta.

He has served as the Director of the Division of General Pediatrics (2001-2010) and Acting Chair of the Department of Pediatrics (2008-09). Since 2009, he has served as the Medical Director, Child and Adolescent Protection Centre, Stollery Children’s Hospital, Edmonton, a position he also held from 2001-2008. He has been a pediatrician with the Child and Adolescent Protection Centre since 1999. He is a contributing author to 12 publications. He has provided many invited presentations.

He has testified as an expert in the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta respecting pediatrics and the examination of children 67 times. [ 151 ] Dr. Dibden was qualified as an expert pediatrician, specifically in the medical assessment of physical and sexual abuse and the

interpretation of associated findings. He relied on A.B.’s medical records associated with her admission to the Stollery, reviews of medical tests and X-rays, consultation with Dr. Stassen, and communications with S.N.A., D.S., and M.A. He also examined A.B., but she was in casts at this time. 2. Defence Expert [ 152 ] Dr. Peter Markesteyn testified for the Defence. Dr. Markesteyn was awarded his MD in 1958 from the State University of Groningen, the Netherlands.

He was licenced to practice in (among other locations) the Netherlands and Overseas Territories from 1960- 2000, in Newfoundland and Labrador from 1962 – 1976, Alberta from 1976 – 1982, and Manitoba from 1982 – 2015. Following internships and residencies, he became the Assistant Pathologist, Forensic Pathology and Surgical Pathology at the General Hospital, St. John’s Newfoundland. From 1970-1976, Dr. Markesteyn served as the Forensic Pathologist and Chief of Autopsy Services and, in 1974 – 1976, was Chief Medical Examiner for Newfoundland and Labrador.

He served for a year in 1976-1977 as Alberta’s Deputy Chief Medical Examiner. From 1982 – 1999 he was the Chief Medical Examiner for Manitoba. Dr. Markesteyn has held academic appointments at Memorial University in St. John’s from 1971 – 1976 (Clinical Associate, Division of Pathology and Lecturer, Forensic Medicine), the University of Alberta from 1976 – 1982 (Associate Clinical Professor, Pathology; Professor, Forensic Pathology, and Chair, Division of Environmental Pathology), and the University of Manitoba (Professor of Forensic Pathology).

He has served as a consultant to Federal Justice in four s. 690 cases, and has worked with the International Criminal Tribunal (Kosovo, Yugoslavia). From 2001 – 2002 he was Director of Forensic Services and Chief Medical Examiner to Kosovo. His c.v. lists no publications, but he has given numerous invited lectures and presentations. He has testified as an expert in the courts of Alberta, British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, and Newfoundland, and the Northwest Territories. [ 153 ] Dr.

Markesteyn was qualified in the areas of how bone fractures were caused and what contribution bone disease may make to the causation of bone fractures. [ 154 ] Dr. Markesteyn reviewed the medical records filed in these proceedings, the evidence of the Crown experts, and pertinent literature. He did not examine A.B. He looked at the X-rays, but said “I’m not a radiologist.” B. Ankle Injuries 1. Nature of the Fractures [ 155 ] Dr. Moreau testified that the X-rays disclosed that A.B. had two undisplaced fractures of her left ankle. The left tibia and fibula were broken.

That both bones were broken was not unusual, since the break was at the ankle; both bones breaking at this location is common. Both fractures were transverse, across the bone. [ 156 ] Dr. Jaremko confirmed that the left ankle fracture was broadly similar to the right ankle fracture in that it was transverse through the distal tibia. Both the tibia and fibula were broken. Neither tibia nor fibula was significantly displaced. [ 157 ] What caught Dr. Moreau’s attention were the fractures at A.B.’s right ankle. Again, the tibia and fibula were broken.

This fracture was caused by more violent force than the left ankle fracture. The right ankle fracture was a more traumatic injury than to the left ankle. The break was “displaced” (the edges of the break were out of alignment; the bone was not just cracked). The fracture was comminuted. That is, there were bone fragments off the area of fracture. Dr. Jaremko commented that the fracture site showed not only displacement, but impaction: the shaft of the tibia had been driven downward. The fibula was “quite displaced.”

[ 158 ] Dr. Jaremko added that the right ankle fracture also displayed a corner fracture. He also stated that the right ankle fracture demonstrated a fracture through the syndesmosis, a firm structure or membrane that holds the tibia and fibula together. [ 159 ] Dr. Markesteyn was aware of corner fractures, but had not encountered one in his work. He had never seen a corner fracture in a child. He said that “it would be up to a radiologist to tell me about them.” He could not speak to how a corner fracture could occur. 2. Mechanism of Fractures [ 160 ] The fractures were not torsional or rotational.

Rather, the fractures were transverse, across the bone. According to Dr. Moreau, this type of break required “three point pressure” – that is, pressure in one direction on either side of the break and pressure in the contrary direction at the breaking point. Such a fracture requires concentrated force. [ 161 ] Dr. Jaremko testified that the right ankle fracture was the product of side-to-side and up-and-down force – a lot of force. The lines of force could have been separate.

It was possible that one large force hitting the ankle at an angle could have had force vectors that resulted in the distinctive fracture. [ 162 ] The right ankle fracture was a high force or high impact injury. Dr. Jaremko detected four fracture lines in the image of the ankle. Each represented a distribution of force through the bone. The corner fracture would have been the product of an external twisting force. The syndesmotic injury also indicated a high energy impact. [ 163 ] Dr.

Dibden confirmed that the right ankle fracture demonstrated a high energy cause. [ 164 ] The Crown experts’ opinions were consistent that the force necessary to cause the right ankle injury would not be generated in a fall from a couch. According to Dr. Moreau, the injury would be caused by a fall from a 3-4 metre height or would have occurred in a car accident if the child were not properly restrained. In his July 17, 2018 report, Dr. Moreau wrote that “[t]he fracture on the right tibia could be associated with a fall from a height with a significant twisting force on that ankle” (response to Question 1, p. 1).

Dr. Jaremko stated that the injury might be seen if, for example, a car hit a pedestrian. It would not be caused by a fall, unless from a very substantial height, as from a balcony. The distance would be greater, for example, than from a bunk bed. Dr. Dibden testified to a particular instance in which a four-year old child fell from a two-storey window. The child suffered an ankle injury, but unilateral, not bilateral. [ 165 ] Dr.

Moreau denied that the injuries to A.B.’s right ankle could have been caused by a fall from a height of 2 – 3 feet, as in the washroom incident: “something more significant happened.” He could not opine, however, on what actions or events caused the injuries. Dr. Dibden’s testimony was to the same effect. The injuries were not caused by a fall off a toilet. Such a fall would not generate sufficient energy. [ 166 ] In contrast to the Crown experts, Dr. Markesteyn was of the opinion that A.B.’s injuries could have been caused by her fall in the washroom. He did not consider that possibility to be excluded.

Were he investigating the circumstances, he would have had a biomedical engineer provide opinions about the fall. (I do note that Dr. Jaremko holds a PhD in biomedical engineering and has an academic position with the U of A Department of Biomedical Engineering.) Dr. Markesteyn would have asked for a re-enactment, “to see what’s possible.” His opinion that the injuries could have been caused by the fall were supported by two factors. First, it was not known how fragile A.B.’s bones were. In his opinion, fragile bones were a possibility that had to be addressed.

Congenital diseases, such as osteogenesis imperfecta (OI) had to be ruled out. Laboratory testing was required, respecting (e.g.) metabolites and hormones. With respect to the testing for OI, a geneticist would have to advise. The geneticist would identify the testing to be done – Dr. Markesteyn acknowledged that he is not a geneticist. Second, S.N.A.’s account was that A.B. was walking before the fall but not after.

The common sense inference was that if A.B. had been walking before the fall but was not walking after the fall, the reasonable medical probability was that her ankle injuries were the result of the fall. Dr. Markesteyn did acknowledge in cross-examination that if there were other intervening events after the fall but before her inability to walk, that would affect his opinion. [ 167 ] I will return to the OI issue below. 3. Age of the Fractures [ 168 ] Dr. Jaremko stated that both the right and left ankle fractures were very recent.

It was conceivable that the injuries occurred at different times, as opposed to being produced by the same moment of impact. However, the two fractures of the right ankle (tibia and fibula) occurred almost certainly at the same time, as did the two fractures of the left ankle. [ 169 ] Dr. Jaremko stated that the right ankle fracture was a very recent fracture. It occurred not more than a day or two before A.B. had been X-rayed. It had not occurred 3 weeks or a month earlier. There was a posterior bright or sclerotic area.

This could indicate an early healing response or pieces of bone driven into one another. [ 170 ] Dr. Jaremko did not detect any healing response in the left ankle fracture. It too was an acute, very recent fracture. [ 171 ] Dr. Dibden testified that if the history provided respecting the onset of symptoms were relied on, the ankle injury could have occurred five days or more before A.B. was taken to hospital, but he did testify that dating by clinical history was only one way of dating the injury and review of X-rays would be another. 4.

Prevalence of Ankle Fractures Among Children [ 172 ] The prevalence of ankle fractures among children is relevant to the issue of causation. The more common injuries are, the higher the likeli

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