R v Bennett, 2021 ABQB 206

Court of Queen’s Bench of Alberta Citation: R v Bennett, 2021 ABQB 206 Date: 20210319 Docket: 181079278Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - JUSTIN PAUL BENNETT Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order: Information that could identify the undercover police officers referred to in this judgment shall not be published, broadcast, or transmitted in any way. Unless otherwise ordered, this publication ban will expire on November 20, 2025. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Corrected judgment: A corrigendum was issued on March 24, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. Table of Contents I. Introduction . 5 II. General Principles . 5 A. Proof Beyond a Reasonable Doubt 5 B. The Accused’s Evidence . 6 C. Circumstantial Evidence . 9 III. The Offence . 11 IV. Matters Not at Issue . 12 V. Legal Issues . 13 VI. The Evidence . 13 A. Preliminary Comments: Credibility and Reliability . 13 B. Overview of the Evidence at Trial 14 C. Operation Hedera and the Hart Voir Dire . 15 D. Crown Witnesses . 16 1.

Evidence of the Medical Experts . 16 2. Dr. Walter John Hader 17 a. Ivy’s Injuries . 17 b. Cause of Ivy’s Injuries . 18 3. Dr. Meagan Mahoney . 18 a. Ivy’s Injuries . 18 b. Cause of Ivy’s Injuries . 18 4. Dr. Paul William Doughty . 19 a. Ivy’s Injuries . 19 b. Cause of Ivy’s Injuries . 19 c. Hypothetical Scenarios . 20 5. Dr. Natalie Forbes . 20 a. Ivy’s Injuries . 20 b. Cause of Ivy’s Injuries . 21 6. Dr. Bamidele Adeagbo . 21 a. Cause of Death . 22 b. Ivy’s Injuries . 22 c. Timing of Ivy’s Injuries . 22 d. Cause of Ivy’s Injuries . 22 e. Hypothetical Scenarios . 22 7. Dr. Brooks-Lim .. 23 a. Cause of Death . 23

b. Timing of Ivy’s Injuries . 24 c. Ivy’s Injuries . 24 d. Cause of Ivy’s Injuries . 24 e. Hypothetical Scenarios . 25 8. Evidence of the First Responders . 25 9. Evidence of Ms. Wordsworth . 26 E. The Evidence of Mr. Bennett 28 1. The Bennett Statement 28 2. The Undercover Statement 29 3. Mr. Bennett’s Testimony at Trial 30 a. The Events of September 27, 2017 . 31 b. Making the Undercover Statement 33 VII. Analysis . 35 A. Preliminary Issue: Breach of the Rule in Browne v Dunn . 35 B. Preliminary Issue: Prior Incidents of Abuse . 35 C. The Elements of Second Degree Murder 36 D. Mr.

Bennett’s Credibility and Reliability . 36 1. The Xbox 360 . 37 a. The Bennett Statement 37 b. The Undercover Statement 37 c. The Trial Testimony . 37 d.

Summary of Inconsistency . 38 2. Breakfast and the Corner 38 a. The Bennett Statement 38 b. The Undercover Statement 38 c. The Trial Testimony . 38 d.

Summary of Inconsistency . 38 3. Wearing Headphones . 38 a. The Bennett Statement and the Undercover Statement 38 b. The Trial Testimony . 38 c.

Summary of Inconsistency . 39 4. Music in the Shower 39 a. The Bennett Statement and the Undercover Statement 39 b. The Trial Testimony . 39 c.

Summary of Inconsistency . 39 5. Entering the Bedroom .. 39 a. The Bennett Statement 39 b. The Undercover Statement 40

c. The Trial Testimony . 40 d.

Summary of Inconsistency . 41 6. Conclusion on Mr. Bennett’s Credibility and Reliability . 41 E. Assessing the Elements . 41 1. Did Mr. Bennett cause Ivy’s death? . 41 a. Did Ivy Die by Accident? . 41 b. Did Mr. Bennett Have Exclusive Opportunity to Kill Ivy? . 43 i. Timeline of Events . 43 ii. Did Ms. Wordsworth Have the Opportunity to Inflict Ivy’s Injuries? . 45 2. Did Mr. Bennett Cause Ivy’s Death by Means of an Unlawful Act? . 47 a. Challenges to the Reliability of the Undercover Statement 48 i. Embracing Organization Values . 48 ii. Daily Consumption of Methamphetamine . 49 iii.

The July 26, 2017 Incident 49 b. Markers of Reliability in Undercover Statement 50 i. The Medical Evidence . 50 ii. No Time to Come Up with a Clear Story . 51 iii. After-the-fact Conduct 52 iv. The Reason Why Mr. Bennett Approached Officer “V” . 53 v. Mr. Bennett’s Genuine Remorse . 55 c. Conclusion on Whether Ivy Died by an Unlawful Act 56 3. Did Mr. Bennett have the state of mind required for murder? . 56 VIII. Conclusion . 58 I.

Introduction [ 1 ] On September 27, 2017, three-year old Ivy Wick (“ Ivy ”) was found unconscious in her bedroom and transported by ambulance to the Alberta Children’s Hospital (“ ACH ”). There, the trauma team determined that Ivy had suffered a traumatic brain injury, she was rushed into emergency neurosurgery and then transferred to the pediatric intensive care unit (“ ICU ”) where she was placed on life support.

Despite the best efforts of medical personnel, Ivy succumbed to her injuries on October 5, 2017. [ 2 ] The morning that Ivy’s injuries occurred, the only people in the residence was Ivy, her mother, Helen Wordsworth (“ Ms. Wordsworth ”), and her step-father, Justin Bennett (“ Mr. Bennett ” or the “ Accused ”). [ 3 ] Mr. Bennett told police officers that he believed that Ivy hit her head after she tripped and fell while she was running to her bedroom.

The medical doctors and medical examiners told the police that a ground-level trip and fall was unlikely to explain the catastrophic nature of Ivy’s injuries. [ 4 ] In an attempt to determine if Ivy’s injuries were in fact inflicted, the police launched an undercover “Mr. Big” operation in which the targets were Mr. Bennett and originally, Ms. Wordsworth. At the conclusion of that operation, on September 6, 2018, Mr. Bennett provided a statement to an undercover police officer that he had inflicted the injuries on Ivy that ultimately led to her death, which was admitted at trial. [ 5 ] Mr.

Bennett now stands charged with the second degree murder of Ivy, pursuant to section 235(1) of the Criminal Code of Canada , RSC, 1985, c C-46 . These are the reasons for my decision on the charge before the court. II. General Principles

[6] In any criminal trial there are two fundamental principles. First, the accused is presumed to be innocent. He cannot beconvicted unless the Crown has proved his guilt beyond a reasonable doubt. Second, the accused does not have to prove anything. [7] In this case, Mr. Bennett testified. Also, the Crown’s case against Mr. Bennett was circumstantial. [8] I must bear in mind two linked sets of principles. Those concerning proof beyond a reasonable doubt and those concerningthe assessment of circumstantial evidence. A. Proof Beyond a Reasonable Doubt [9] Mr.

Bennett may only be convicted if, on all the evidence in the case, the trier of fact is not left with a doubt as to whether heis guilty of the charged offence: R v Villaroman, 2016 SCC 33 at para 35 [Villaroman]. [10] In a criminal trial, the burden of proof rests entirely upon the Crown, and the standard of proof is beyond a reasonable doubt.This means that Mr. Bennett does not have any obligation to explain inculpatory evidence or to disprove the Crown’s theory as to hisguilt. [11] The onus is always on the Crown to prove, beyond a reasonable doubt, the crime for which an accused has been charged.

TheCrown must prove each element of the offence to that evidentiary standard. [12] In considering the issue of reasonable doubt, I am guided by the comments of Justice Cory in R v Lifchus, (SCC), [1997] 3 SCR 320 at para 36, which can be summarized as follows: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; • it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guiltymust acquit.

B. The Accused’s Evidence [13] Defence relies on Mr. Bennett’s testimony and other evidence that they argue is exculpatory – specifically, two recorded out-of-court statements made by Mr. Bennett to the police. This evidence conflicts directly with the Crown’s evidence. This case, then, is a“W(D)” case: R v W(D), (SCC), [1991] 1 SCR 742 [W(D)]. [14] In R v Ryon, 2019 ABCA 36 [Ryon], Justice Martin recently and helpfully recast the elements of the assessment of thetotality of trial evidence under the reasonable doubt standard [“Modified W(D)”].

I am guided by paras 38, 51-53 of Ryon: [38] It may be helpful to step back and consider the message intended to be delivered. In short, it is that when assessing exculpatoryevidence jurors should understand that they have three choices, not two: they may accept the evidence, they may reject it, or they mayfind themselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance orconfident rejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefitthe accused. In R v.

Edwards, 2012 ONSC 3373 at para 20, Code J. observed: [T]he so-called “second branch” of W(D) … is an “alternative” to complete belief or complete rejection and arises where a trier cannot“resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it inChallice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference tothe other”, as Cory J. put it in W.D.S. [...] [51] Then the charge should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown [...] (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident they can accept the Crown’s version of events, they must acquit [...] (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,

the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [52] Finally, where there are included offences or multiple charges, the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges. [53] Like W(D) , the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved.

Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply: W(

D) at para 30 . See also R v. Kristensen , 2010 ABCA 37 [ 15 ] In R v Achuil , 2019 ABCA 299 , Justice Martin further clarified his comments in Ryon , noting that the phrase, “not confident they can accept the Crown’s version of events”, is not a legal standard: para 18.

Rather, it may be safer to revert to the wording proposed in R v Gray , 2012 ABCA 51 at para 42 : In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (Again subject to defences with additional elements such as an objective component). [ 16 ] I note that W(D ) (as modified by Ryon and Achuil ) offers a helpful road map, but not the only route. The purpose of W(

D) is to ensure that triers of fact understand that a verdict must not be based on a choice between the accused and the Crown’s evidence, but on whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt about the accused’s guilt: R v Y(CL) , 2008 SCC 2 at paras 6-8 . [ 17 ] A trial judge is not required to apply the W(

D) formula in a sacrosanct manner in order to properly apply the burden of proof.

The order in which a trial judge makes credibility findings of witnesses is inconsequential, provided the principle of reasonable doubt remains the central consideration: R v Vuradin , 2013 SCC 38 at para 21 . [ 18 ] However, to consider the accused’s evidence only after finding that the Crown has proven their case beyond a reasonable doubt, shifts the burden of proof and thus contravenes the principles of W(D) : R v DG , 2019 ABCA 96 . [ 19 ] A related concept flowing from W(D) , and one that I am mindful of, is that the trial is not a credibility contest requiring me to decide which story, or version of a story, I believe.

I may believe a witness, disbelieve a witness, or be unable to decide. [ 20 ] Justice Blair of the Ontario Court of Appeal specifically discussed the relationship between conflicting evidence and witness credibility in R v BD , 2011 ONCA 51 at para 105 : [105] What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep.

Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt [ 21 ] Therefore, if I am left with a reasonable doubt on all or any of the elements of the offence, arising from the credibility of witnesses, I must resolve such doubt in the accused’s favour and acquit. [ 22 ] Finally, it is important to recognize that the mere fact the accused provides evidence does not make it exculpatory, and may not bring the evidence within the purview of W(D) .

Justice Larlee, on behalf of the New Brunswick Court of Appeal, addressed this very issue in R v Morningstar , 2017 NBCA 39 at paras 10-12 , and is worth repeating: [10] The context for Mr. Morningstar’s argument is as follows. Three days after the murder of Baylee Wylie, specifically on December 20 and 22, 2015, Mr. Morningstar provided two voluntary statements to the police. In the statements, he described his involvement in the events leading up to the death, the death itself, and the events subsequent to the death. He made wide-ranging statements about the assaults on Mr.

Wylie, the death and the burning of the residence with Mr. Wylie inside. The statements were primarily inculpatory. Mr. Morningstar argues they were exculpatory with respect to murder, on the basis he stated “I’m not a murderer” and that the statements generally supported the defence of duress. [11] We know the trial judge was alive to the issue of how to analyse Mr. Morningstar’s evidence with respect to a possible W.(D.) instruction because at the pre-charge hearing with the lawyers he discussed it with them regarding both murder and arson.

After a consideration of the context of the statements, the trial judge decided against it; he could not give such a direction with respect to the count of murder, but only for arson. [ 12] I accept the Crown’s submission there was no conflict of legal consequence in Mr. Morningstar’s evidence such that it alone would support a reasonable doubt on a charge of murder. It cannot be said the statement “I’m not a murderer” is a source of reasonable doubt. Mr.

Morningstar’s statements of belief and opinion that he was not a murderer or that he felt compelled to participate, even if accepted by the jury, could not legally reduce the crime from murder. Said another way, this evidence was not capable of legally negating intent when all other facts were indicative of murder. Mr. Morningstar explained in his statements that he engaged in the beatings and stabbings of Mr. Wylie, albeit to a lesser extent than the others, and he did not inflict the final blows.

This portrayal of a minimization of participation did not constitute evidence which required the trial judge to give a W.(D.) instruction with respect to

murder. In other words, even if I were to accept the R. v. B.D. jurisprudence from the Ontario Court of Appeal, this is not a case in whichthere was opposing evidence on a “vital issue”. In my view the trial judge made no error in the approach that he took in not giving a W.(D.) instruction to the jury with respect to murder. [23] That said, a trier of fact may not treat disbelieved exculpatory evidence as positive evidence of guilt unless there is evidence,independent of the fact of falsity itself, that the statement was concocted or deliberately fabricated: R. v Selvanayagam, 2011 ONCA 602at para 27. C.

Circumstantial Evidence [24] When the Crown’s case relies on circumstantial evidence, as in this case, the rule in R v Hodge, 1838 CanLII 1 (FOREP), 168ER 1136 [Hodge’s Case] provides an elaboration of the reasonable doubt standard: Villaroman at paras 25-26.

This concern arises fromthe temptation of triers of fact to use inductive reasoning to draw inferences from unproven facts. [25] Justice Cromwell, writing for a unanimous Supreme Court of Canada in Villaroman, identified that the use of circumstantialevidence by the trier of fact is about inference drawing, and cautioned against the trier of fact unconsciously filling the blanks, bridginggaps, or jumping to conclusions on the evidence to support the inference that the Crown suggests: paras 26, 29-31. [26] A “succinct and accurate way” of conveying the proper approach to the drawing of an inference from circumstantial evidenceis to instruct the trier of fact that an inference of guilt should be the only reasonable inference that such evidence permits: Villaroman atpara 30. [27] When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and “other reasonablepossibilities” which are inconsistent with guilt.

However, the Crown need not negate “ever possible conjecture, no matter how irrationalor fanciful, which might be consistent with the innocence of the accused”, but rather only reasonable ones. “Other plausible theories” or“other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation: Villaroman at para 37. [28] As Justice Cromwell observed at para 42 of Villaroman, the Alberta Court of Appeal has provided a helpful statement of howto draw the line between “plausible theory” and “speculation” in R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25: [22] Circumstantial evidence does not have to totally exclude other conceivable inferences.

If the trier of fact infers guilt because thealternatives do not raise a doubt in his or her mind, the verdict is not thereby rendered unreasonable, ipso jure. It is still fundamentally forthe trier to fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] ofthat trier. [24] Alternative inferences must be reasonable and rational, not just possible .... Reasonable doubt can arise from the absence ofevidence.

It is not error of law to give effect to such a doubt even if it does not have specific evidence backing it up ... [25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative

interpretation of thecircumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just becauseit is impossible to exclude it entirely. The law does not require such proof to absolute certainty .... [29] In R v Soosay, 2020 ABQB 748 at para 20, Justice Renke provided further additional guidance in relation to JusticeCromwell’s warning to avoid “speculation”: [20] ... Providing a definition of “speculation” or set of criteria that distinguishes “speculation” from a reasonable inference isdifficult.

Both speculations and reasonable inferences concern possible factual conclusions from evidence. What separates them, perhapsmost simply, is the reasonableness of the inference, from the standpoint of common sense and ordinary rationality.

Whether a proposedinference is or is not reasonable depends on (e.g.) • the evidence (or lack of evidence) claimed to support the inference, including the nature or scope and reliability of the supportingevidence • the relationship of the supporting evidence to the claimed inference (“given this, we may infer that,” keeping in mind that aninference need not be based on “proven fact” (Villaroman at para 35)) • the relationship of the claimed inference to other evidence and other (reasonable) inferences arising from the evidence • whether any assumptions of fact, themselves not supported by evidence, must be relied on to draw the claimed inferences • the degree of complexity or coincidence required for the inference to be viable, keeping in mind that o human events may occur at intersections of coincidence – life may be surprising o reasonable inferences need not be the simplest or most easily drawn – “To hold otherwise would lead to the untenable conclusion thata difficult inference could never be reasonable and logical:” ... [30] On the other hand, the rule in Hodge’s Case does not apply to an inference of intention.

Therefore, the mere possibility thatthe accused could have lacked intent to kill is not sufficient to have precluded the trier of fact from relying on the “common-sense”inference of intent: R v Walle, 2010 ABCA 384 at para 12, affirmed in 2012 SCC 41; see also R v Mitchell, (SCC),[1964] SCR 471 at 479-480; R v Cooper, (SCC), [1978] 1 SCR 860 at 874. [31] Throughout this decision, when I have drawn inferences from the proven evidence, I have drawn those inferences in careful

consideration of those principles and cautions provided by Justice Cromwell in Villaroman. [32] I have also drawn inferences with an awareness that the reasoning process of finding inferential facts is based upon inductivereasoning as opposed to deductive reasoning. For my purposes, while unnecessary to expound on the differences between inductive anddeductive reasoning, I note the following comments made by Justice Labrenz in R v Crier, 2020 ABQB 20 at paras 26-27: [26] ... it is enough for me to state that inductive logic involves making broad generalizations from specific observations.

Deductivereasoning, on the other hand, involves testing a general theory or hypothesis by examining the underlying premises. [27] Conclusions reached by deductive reasoning are always certain if the underlying premises are true. On the other hand, thedecision maker or the trier of fact must exercise care with inductive reasoning, which offers predictions as to human behaviour basedupon probabilities drawn from shared experience.

Specifically, the trier of fact must take care to ensure that generalized conclusionsconcerning human behaviour apply specifically (with allowance for individual variance, culture, or other differences borne of socialcontext), and that the resort to logic, human experience, and common sense is not a ready invitation to substitute critical thought withgeneralizations or upon other matters that were not in the evidence (stereotyping). [33] Finally, in a circumstantial case, as in any case, I must consider the evidence as a whole and not piecemealed portions indetermining whether the Crown has proved its case beyond a reasonable doubt: R v Morin, (SCC), [1988] 2 SCR 345.

III. The Offence [34] The relevant Criminal Code provisions are as follows: a. Section 222(1) a person commits homicide when he causes the death of a human being by any means, whether directly orindirectly. b. Section 222(2) homicide is either culpable or non-culpable, and under s.222(4) both murder and manslaughter constitute culpablehomicide. c. Section 222(5)(

a) a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. d. Section 222(5)(

b) a person commits culpable homicide when he causes the death of a human being by means of criminalnegligence. e.

Section 229 Culpable homicide is murder: a. where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not. f. Section 231(1) murder is first degree murder or second degree murder. g. Section 231(7) all murder that is not first degree murder is second degree murder. h.

Section 234 culpable homicide that is not murder or infanticide is manslaughter. i. Section 235(1) every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall besentenced to imprisonment for life. [35] The Crown must establish, beyond a reasonable doubt, the actus reus of murder – that is, the accused was a significantcontributing cause of the victim’s death: R v Nette, 2011 SCC 78 at paras 71-72. [36] The Crown must also establish the necessary mens rea. Under s. 229(

a) of the Criminal Code, the crime of murder requiresproof that an accused person possesses a specific state of mind, also known as specific intent. [37] For culpable homicide to constitute murder, the burden is on the Crown to prove, beyond a reasonable doubt, one of twopossible states of mind on the part of an accused.

The Crown must prove either that the accused intended to cause the death of thedeceased or that the accused intended to cause the deceased bodily harm, which he knew was likely to cause his death and was recklesswhether death ensued or not. [38] Recently, the Alberta Court of Appeal stated in R v Newborn, 2020 ABCA 120 at para 66: [66] Murder is classified as a specific intent offence. The intent cannot be inferred merely from the fact of the killing.

The significanceof this classification is that where a person is unable to form the specific intent required to commit the offence of murder, then theoffence is not proven beyond a reasonable doubt and the accused is guilty of manslaughter. That is, manslaughter does not requiremurderous intent: R. v. Sarrazin, 2011 SCC 54 (S.C.C.) at para 18. Manslaughter requires objective foresight of the risk of bodily harm

which is neither trivial nor transitory; foreseeability of the risk of death is not required: R. v. Creighton, (SCC), [1993] 3S.C.R. 3, 83 C.C.C. (3d) 346 (S.C.C.); R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, 9 O.R. (3d) 544 (S.C.C.). [39] To meet this burden, the Crown need not prove both states of mind or intentions. One is sufficient. If Mr. Bennett did notmean to do either, he committed manslaughter. IV. Matters Not at Issue [40] The Accused admitted several facts pursuant to

Section 655 of the Criminal Code for the express purpose of dispensing withformal proof. [41] The concessions made by Mr. Bennett in the Agreed Statement of Facts, established the following elements beyond areasonable doubt: (

i) the identity of the Accused, which is Mr. Bennett; (ii) the date on which the death occurred; (iii) the identity of the deceased, being Ivy; and (iv) the jurisdiction in which the death occurred, which is Calgary, Alberta. [42] Notwithstanding Mr. Bennett’s concessions, I note the supporting particulars for the record. [43] The formal charge reads as follows: Justin Paul Bennett stands charged 1.

That he, on or about the 5th day of October, 2017, at or near Calgary, Alberta, did unlawfully cause the death of Ivy Wick, therebycommitting second degree murder, contrary to section 235(1) of the Criminal Code of Canada. [44] The individual before the Court identified as Justin Paul Bennett is the same individual named as the Accused in theIndictment. To this extent, the identity of the Accused is not in issue. [45] Ivy is the deceased identified in Count 1 of these proceedings.

Ivy was born on July 12, 2014 and died on October 5, 2017, atthe ACH in Calgary, Alberta, at the age of three. [46] On the day of the events in question – September 27, 2017 – Mr. Bennett, Ms. Wordsworth and Ivy resided together at anapartment located in northeast Calgary, Alberta (the “Bennett Residence”). They were the only people present. V. Legal Issues [47] Broadly speaking, the outstanding issues that I must decide are as follows: a. Did Mr. Bennett murder Ivy? Specifically, has the Crown proven the following essential elements beyond a reasonable doubt: 1. Did Mr. Bennett cause Ivy’s death? 2. Did Mr.

Bennett cause Ivy’s death unlawfully? 3. If so, did Mr. Bennett have the state of mind required for murder? b. If the Crown fails to prove that Mr. Bennett murdered Ivy, has the Crown proven that Mr. Bennett committed culpable homicidebecause of an unlawful act? VI. The Evidence A. Preliminary Comments: Credibility and Reliability [48] As with any hearing in this Court, the facts are the most important aspect of the case. The rules of evidence control the factsthat come before the Court: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) atpara 1.1 [Sopinka].

In this case, the findings turn on the facts in evidence, including the Exhibits that were entered into the trial proper,certain fundamental principles in law, and common sense. [49] In every trial, the trier of fact needs to assess the evidence by reference to credibility, reliability and weight. [50] The term “credibility” tends to be used to describe the honesty of the witness, or the witness’s readiness to offer truthfultestimony: SD v (Ontario) Criminal Injuries Compensation Board, 2010 ONSC 2562 at para 13; see also R v Norman, (ON CA), [1993] OJ No 2802 (ONCA).

[ 51 ] As the trier of fact, it is up to me to decide whether a particular witness is telling the truth and to determine the appropriate weight to place on the evidence: R v Thain, 2009 ONCA 223 at para 32 . If a witness is of bad character, there is an indication that the witness is tarnished or the testimony of a witness is inconsistent, I will reduce the weight which I assign to his or her evidence.

Similarly, if a witness is particularly motivated to help one side, demonstrates credibility challenges by offering inconsistent or inherently unlikely testimony, or is unable to respond to appropriate questions during cross-examination, I will reduce the weight that I assign to his or her evidence. [ 52 ] The concept of reliability recognizes that even an honest witness can be mistaken. Testimony may be “unreliable” because the witness had a poor opportunity to observe the factor about which he or she is testifying, and, therefore, could be mistaken. [ 53 ] A few examples illustrate reliability concerns: (

i) a witness may not understand what they observed or may not remember accurately what was observed; (ii) a witness may not be able to communicate observations accurately because of poor communicative abilities or language problems; (iii) a witness may allege a particular element poorly in the testimony in circumstances where that element is not adequately clarified by counsel; and (iv) a witness may not realize that the foundation underlying their evidence is not well grounded.

Ultimately, the less reliable the evidence, the less weight I will give it. [ 54 ] Even if I believe the evidence, I may determine that it is of more or less importance. Some evidence is enormously informative because: (

i) it addresses an issue of importance in the case; and (ii) it is cogent because it strongly supports the conclusions drawn from it. [ 55 ] It is important to note that the law of evidence tends to address admissibility. In contrast, the evaluation or weighing of evidence is typically left to my common sense. I apply that common sense in my capacity as the trier of fact. [ 56 ] I will discuss the credibility and reliability of the witnesses in my analysis. However, I note here that that in its submissions, the Crown drew my attention to Mr. Bennett’s evidence. In particular, the Crown asserts that some of the testimony given by Mr. Bennett: (

i) strained credulity to the breaking point; and (ii) was logically inconsistent on critical matters. [ 57 ] In his submissions, Defence counsel also drew my attention to Ms. Wordsworth’s evidence, suggesting that she was neither a credible nor reliable witness. [ 58 ] Given the submissions by the parties, special attention will be given to the credibility and reliability of Ms. Wordsworth and Mr. Bennett, as well as the out-of-court statements made by Mr. Bennett. Specifically, and as aforementioned, Mr. Bennett’s evidence will be specially considered in my analysis through the application of W(D) . B.

Overview of the Evidence at Trial [ 59 ] This trial was originally scheduled for three-weeks in November of 2020. At the end of the three-weeks, additional days were required to deal with outstanding matters and to close the case. Closing submissions were scheduled for the end of December, but due to the COVID-19 outbreak at the Calgary Remand Centre, Mr. Bennett did not get transported to the Calgary Court Centre that day. Instead, he attended by phone.

Based on the schedules of everyone involved, closing submissions took place during the first week of February 2021. [ 60 ] The Crown called a total of 23 witnesses during trial, including eleven police officers, two firefighters, two paramedics, six medical experts, and two civilian witnesses. The Accused testified in his defence. [ 61 ] The majority of exhibits relied on by the Crown were entered by consent. These include: • the Agreed Statement of Facts, which admitted the following outgoing calls made from Ms.

Wordsworth’s cell phone on the morning of September 27, 2017: o 11:23 am to Katrina Leon – duration of call 00:001:46; o 11:26 am to Amber Bennett – duration of call 00:00:00; o 11:27 am to Amber Bennett – duration of call 00:00:02; o 11:27 am to Amber Bennett – duration of call 00:00:07; o 11:27 am to Paul Bennett – duration of call 00:00:00; o 11:29 am to 911 Public Safety Communications – duration of call 00:07:45. • the Accused’s conversation with EMS Telecoms at approximately 11:29 am on September 27, 2017 (audio recording and transcript); • Ivy’s medical records, dated September 27, 2017 to October 5, 2017; • the medical examiner’s autopsy report as well as the related autopsy photographs; • photographs taken by members of the CPS Crimes Scene Unit of the Bennett Residence; • several intercepted communications (audio recordings and transcripts); and • the statement that Mr.

Bennett made to Detective Acosta of the CPS on September 27, 2017 (video recording and transcript).

[ 62 ] The following exhibits were contested by the Defence and admitted only after their admissibility was determined in voir dire : • the conversation between Officer “V” and Mr. Bennett, recorded in Regina, Saskatchewan pursuant to Privacy Authorization #1857 on September 6, 2018 at approximately 1:22 pm (video recording and transcript); • a drawing of a body with markings by Mr. Bennett on September 6, 2018; and • a drawing of the Bennett Residence by Mr. Bennett on September 6, 2018. [ 63 ] I offer a

summary of some of the evidence I heard during trial. I do not propose to summarize all the evidence, but I have considered it all. C. Operation Hedera and the Hart Voir Dire [ 64 ] The CPS launched an investigation into the death of Ivy. As part of their effort to address the concerns and suspicions associated Ivy’s death, the Priority Crimes Unit of the CPS established an Undercover Operation, called Operation Hedera. As mentioned above, originally there were two targets of the investigation: Mr. Bennett and Ms. Wordsworth (who was later dropped as a target).

Operation Hedera involved a number of Undercover Officers. [ 65 ] Colloquially called a “Mr. Big” operation, the purpose of Operation Hedera was to elicit a truthful account of what had happened to Ivy: R v Hart , 2014 SCC 52 . As part of Operation Hedera, Mr. Bennett was recruited into a fictional organization, which had some criminal aspects to it. [ 66 ] The fictional organization operated a business that had both a legitimate side and a criminal side. The legitimate side of the business involved an array of jobs, such as delivering building supplies, filling sandbags, and detailing cars.

The criminal side of the business involved re-VINing – the act of changing the Vehicle Identification Number (VIN) of a vehicle from a stolen one to a legitimate one – and moving stolen vehicles. [ 67 ] Mr. Bennett started working for the legitimate side of the business in Scenario 13. He eventually transitioned into some of the criminal work. [ 68 ] Through the course of Operation Hedera, Mr. Bennett came to understand that Officer “V” had the contacts and resources to make the legal problems of organization members disappear. Specifically, Mr.

Bennett came to believe that Officer “V” had a connection with an alleged corrupt medical examiner in Calgary. The alleged corrupt medical examiner was portrayed by another Undercover Officer. [ 69 ] In Scenario 97, that took place on September 6, 2018, Mr. Bennett approached Officer “V” to ask for his assistance. During this meeting, he made a statement to Officer “V” incriminating himself for the death of Ivy (the “ Undercover Statement ”). Mr. Bennett was concerned because the CPS was allegedly seeking to arrest him.

The Undercover Statement was covertly audio and video recorded in its entirety. [ 70 ] The Crown applied for the Undercover Statement made by Mr. Bennett during Scenario 97 of Operation Hedera to be admissible at trial. This application was heard in the context of a voir dire (the “ Hart Voir Dire ”). [ 71 ] A number of undercover police officers testified during the Hart Voir Dire .

Given the publication ban to protect their identifies, I will refer the undercover officers by pseudonyms only. [ 72 ] At the conclusion of the Hart Voir Dire , I found that the Crown had met its burden on a balance of probabilities that the probative value of the Undercover Statement outweighed its prejudicial effect. I also found that Mr. Bennett had not established that Operation Hedera amounted to an abuse of process. [ 73 ] The reasons for my decision regarding the Hart Voir Dire are published: see R v Bennett , 2020 ABQB 728 [ Bennett – Hart Voir Dire ].

To summarize, I found that the Undercover Statement obtained from Mr. Bennett during Operation Hedera was admissible in the trial proper because the presumption of inadmissibility had been displaced by the Crown and Mr. Bennett had not established an abuse of process. Accordingly, the Crown was permitted to adduce into the trial proper the Undercover Statement, the viva voce evidence, and the corresponding exhibits from the Hart Voir Dire . [ 74 ] I also note that I have considered the testimony of the undercover officers’ in great detail. I will not provide a

summary of each of their testimony though because the evidence of the undercover officer’s has already been reviewed in detail in Bennett – Hart Voir Dire . D. Crown Witnesses 1. Evidence of the Medical Experts [ 75 ] During trial, I heard extensive expert testimony regarding Ivy’s injuries and the cause of death. Six medical professionals who were all involved in Ivy’s medical care and treatment or autopsy testified as expert witnesses: • Dr. Walter John Hader – pediatric neurosurgeon; • Dr. Meagan Mahoney – pediatric critical care medicine intensivist; • Dr. Paul William Doughty – pediatric critical care medicine intensivist;

• Dr. Natalie Forbes – child abuse physician; • Dr. Bamidele Adeagbo – forensic pathologist; and • Dr. Brooks-Lim – forensic pathologist. [ 76 ] I offer a brief

summary of the qualifications and testimony of each expert witness. As a general comment, I accept the testimony of each expert and I found each expert to be credible and reliable. 2. Dr. Walter John Hader [ 77 ] Dr. Hader is a pediatric neurosurgeon and the head of Pediatric Neurosurgery at the ACH. He was qualified as an expert in the area of pediatric neurosurgery for the purposes of giving opinion evidence with respect to the identification, diagnosis, and surgical treatment of pediatric neurological injuries. Dr. Hader’s CV was entered as Exhibit 9. a. Ivy’s Injuries [ 78 ] Dr.

Hader was part of the trauma team who treated Ivy at the ACH on September 27, 2017. He testified that when Ivy first arrived at the emergency department, she was in significant distress from a neurological point of view and had severely depressed levels of consciousness. [ 79 ] Dr. Hader said that Ivy was immediately sent for a CT scan to assess her neurological injuries. He described the CT scan as showing that Ivy had a blood clot outside her brain on the left side, as well as hyper acute bleeding. This suggested that the bleeding happened within the last hour or two.

There was also a significant shift in Ivy’s brain from the left side, over to the right side, which showed pressure on the cerebral hemispheres, as well as on the deep brain stem structure. [ 80 ] Based on Ivy’s CT scan results, Dr. Hader explained that he performed an immediate lifesaving procedure on Ivy, called a craniotomy, which involved removing a large piece of bone and opening the covering of the brain on the left-hand side. The goal of the operation was to remove the blood clot, stop the bleeding, and relieve the pressure on Ivy’s brain. [ 81 ] Dr.

Hader testified that to perform the surgery, the surgical team shaved the left side of Ivy’s head and examined her scalp prior to making any incision. He observed no lacerations or cuts to the scalp, but she had bruising on her left ear. He described that some of the bruising looked a little yellowish, and that there was both older and newer bruises, which was evidence of some form of trauma. [ 82 ] Once the surgical team opened Ivy’s scalp, Dr. Hader testified that they observed a variety of bruising on the scalp, with some of the contusions appearing older and some newer. [ 83 ] Dr.

Hader also testified that once he had opened up Ivy’s skull, he was able to observe the blood clot, which was a firm clot with hyperdense pieces and still active bleeding. That indicated that Ivy’s brain injury had to have occurred “within the last short while, meaning hours”. This is because as time passes, the pressure would build up within the clot itself and stop the bleeding on its own. [ 84 ] Dr. Hader testified that they were able to remove the blood clot successfully and the brain had sunken, so they replaced the bone flap and closed up the incision. Dr.

Hader noted that the procedure would have taken less than 90 minutes overall, and the OR chart indicated the time of the completion of the operation was 14:45. Ivy was then taken to the pediatric ICU for post-operative care. [ 85 ] In the days following her surgery, Dr. Hader testified that Ivy’s condition did not improve, despite some relief in the pressure on her brain, which indicated that there was brain stem dysfunction. This was confirmed by an MRI which showed shear injuries and areas of poor blood flow, to both sides of the brain stem and the front and back of the brain stem. [ 86 ] Dr.

Hader was asked about bruising caused by the surgery itself. He testified that there was going to be bruising around the surgical site on the left side of Ivy’s head, but the surgery would not cause bruising to the right side of Ivy’s head. Regarding bruising on the top of Ivy’s head, Dr. Hader said that since the surgical scar extends within a few centimetres of the midline of the scalp, there may be some bruising in the middle of the head, “and if it’s adjacent to our incision, it might be from us”. However, such bruising could also be separate. b. Cause of Ivy’s Injuries [ 87 ] Dr.

Hader was asked to opine on how much force would be required to cause the injuries observed on Ivy’s brain. He testified that: …So most of the children that come in with mild brain injuries have a story, not dissimilar to Ivy's in some ways, is that they're inside the home, and they fall. Falls are one of the most common forms of injury to the head and brain in young children […] If you're three or four feet tall in the young age group, you'll fall three or four feet. And you can suffer a skull fracture, a cut to the scalp.

But it would be very uncommon for you to end up in a severe traumatic brain injury kind of scale of problems from that level of a fall. Those are the most common that we see. Little babies get dropped by moms and dads, and they fall, and they fall a couple of feet, they can have that same skull fracture, but that would be extremely uncommon for that to end up in a severe situation. [ 88 ] Dr. Hader went on to say that it would be his assumption that more force was involved, than just a fall from standing, to explain Ivy’s injuries. 3. Dr. Meagan Mahoney [ 89 ] Dr.

Mahoney is a pediatric critical care medicine intensivist at the ACH. She was qualified as an expert in the area of

pediatric critical care for the purposes of giving opinion evidence with respect to the identification, diagnosis, treatment, and possible mechanism of pediatric injuries. Dr. Mahoney’s CV was entered as Exhibit 14. a. Ivy’s Injuries [ 90 ] Dr. Mahoney was part of the trauma team who treated Ivy when she was first brought to the ACH on September 27, 2017. Dr. Mahoney testified that Ivy had a subdural hematoma that required immediate neurosurgery. While the operating room was being prepared, Ivy was brought to the pediatric ICU where Dr. Mahoney examined her. [ 91 ] Dr.

Mahoney testified that during the examination, Ivy was sedated. She observed that Ivy did not have any external swelling or external signs of injury on the outside of her head, such as bumps, swelling or softness, which would indicate blunt force trauma. Ivy did have an unusual pattern of bruising on the top parts of both her ears. [ 92 ] Dr. Mahoney further observed that Ivy’s pupils were not reactive, but that there was bleeding in the back part of both of her eyes, in her retinas. b. Cause of Ivy’s Injuries [ 93 ] Dr.

Mahoney said that retinal hemorrhages are suggestive of an acceleration-deceleration injury. [ 94 ] Dr. Mahoney explained that an acceleration-deceleration injury results from whenever a force applied to a child causes the rapid acceleration of the body, and specifically the head, and then a rapid stop or change in direction. She testified that it is most commonly described as shaken baby syndrome, but these injuries can be seen “where a child is moving to quickly and comes to a rapid stop”, like in a motor vehicle accident. [ 95 ] Dr.

Mahoney testified that a subdural hematoma is another classic sign of shaken baby syndrome, but that shaken baby syndrome is typically only seen in babies under the age of one. In her experience, she has never seen a three-year old present with shaken baby syndrome. [ 96 ] Dr. Mahoney was asked whether Ivy’s injuries would be consistent with a scenario where Ivy ran, tripped and fell down, striking her head on a hard, immovable object. Dr. Mahoney testified that it would not because “the extent of the injury, in my opinion, would need to be caused by quite a bit more speed or force.

The force of Ivy's own body and momentum wouldn’t have been enough to cause that degree of injury”. 4. Dr. Paul William Doughty [ 97 ] Dr. Doughty is a pediatric critical care medicine staff intensivist at the ACH. He was qualified as an expert in the area of pediatric critical care for the purposes of giving opinion evidence with respect to the identification, diagnosis, and treatment of pediatric injuries and the possible mechanism for such injuries. Dr. Doughty’s CV was entered as Exhibit 10. a. Ivy’s Injuries [ 98 ] Dr.

Doughty took over the care of Ivy in the ICU of the ACH on October 2, 2017 and continued caring for her until her death on October 5, 2017. [ 99 ] Dr. Doughty conducted an initial head-to-toe physical examination of Ivy on October 2, 2017. He testified that “if I was to summarize those findings, this was a little girl who had a severe neurologic impairment who had only basic reflexive responses that we need to stay alive, but even those basic reflexive responses were severely impaired.” The only visible injuries he noted was bruising on the tops of both of Ivy’s ears. [ 100 ] Dr.

Doughty testified that Ivy’s clinical examination showed “a left-sided subdural hematoma, brain swelling, and deep grey matter injury, all associated with whatever her inciting injury was”. [ 101 ] Dr. Doughty explained that the subdural hematoma caused an uncal herniation and midline shift. An uncal herniation occurs when parts of the brain get pushed downwards and puts pressure on the brain stem structures, impairing oxygen flow to the tissue. A midline shift is an increase in intracranial pressure that is significant enough to push the brain in one direction or another.

He explained that in Ivy’s case, the bleeding on the left side of her brain caused so much pressure that it shifted the entire brain rightward and away from the area of bleeding. [ 102 ] Dr. Doughty testified that the grey matter injury referred to impairment in differentiation between the grey and white matter of the brain, which is caused by tearing and injury to the long nerve fibres that make up the brain tissues and is indicative of brain swelling. Dr. Doughty said that shearing and tearing of the nerves would typically be seen in any patient who experienced a high-velocity, high- impact force. [ 103 ] Dr.

Doughty testified about the steps he went through to remove layers of neuroprotection to try to stimulate a change in Ivy’s level of wakefulness and responses to stimuli, throughout the week he cared for her. Despite these steps, Ivy “remained comatose with what we perceived to be a life-limiting severe traumatic brain injury”. Ivy’s state did not improve and she succumbed to her injuries at 02:17 on October 5, 2017. b. Cause of Ivy’s Injuries [ 104 ] Dr. Doughty opined that the constellation of all of Ivy’s injuries was “highly suspicious for what we would term abusive head

trauma”. [ 105 ] Dr. Doughty testified that that he would expect to see an injury of the magnitude seen in Ivy in a “very high-velocity situation. So things like motor vehicle collisions, abusive head trauma, trauma where there’s such significant and intense force that all of our protective reflexes that prevent us from having severe brain injuries are overcome”. [ 106 ] Dr. Doughty was asked about “coup-countrecoup” injuries.

He explained that …a coup-contrecoup injury typically represents is a high-velocity force whereby the body is suddenly stopped; the brain continues moving forward; it strikes the front part of the skull, and injures the brain, because it hits with such force; and because the force is impactful, it then directs the brain backwards through its fluid layer, and often then causes injury to the back part of the brain… [ 107 ] Dr. Doughty explained the coup-countrecoup injuries are seen often in car accidents or in abusive head trauma in babies, typically younger than 12 to 15 months of age. [ 108 ] Dr.

Doughty said that while he cannot perceive bruising on an MRI or CT scan, a subdural bleed, as seen in Ivy, is very similar to what he might expect in a patient with a coup-contrecoup injury. c. Hypothetical Scenarios [ 109 ] Dr. Doughty was asked if Ivy’s injuries could be explained by a child of Ivy’s size (

i) falling from standing height and striking their head on a hard, immovable object, or (ii) running, tripping and then striking their head on a hard, immovable object. Dr. Doughty explained that in his experience as an ICU doctor, as well as in general pediatrics, “he’s never seen a subdural bleed associated with a fall from ground height, be it stationary or running”. [ 110 ] Dr.

Doughty was asked if the following scenario could explain Ivy’s injuries: an adult struck Ivy on the top of the head with a closed fist, took the right side of Ivy’s head in their hand and threw Ivy’s head into a door frame, the adult then tripped Ivy, causing her to strike her head on the solid floor. Dr. Doughty testified that the scenario might be more consistent with a subdural bleed because it introduces an “intense, high-velocity force exceeding the brain’s ability to protect itself”. [ 111 ] Dr.

Doughty was asked if Ivy’s injuries could be explained by “an adult grabbing Ivy by the tops of her ears with significant force and then whips her head back and forth numerous times”. He testified that he would be concerned that the level of force described could cause an injury. 5. Dr. Natalie Forbes [ 112 ] Dr. Forbes is a pediatrician who works at several community clinics, including at the Calgary & Area Child Advocacy Centre as a child abuse physician.

She was qualified as an expert in the area of pediatric medicine, child maltreatment, and etiology of injury, to provide opinion evidence on the identification, diagnosis, treatment, and mechanism of pediatric injuries. Dr. Forbes’s CV was entered as Exhibit 12. a. Ivy’s Injuries [ 113 ] Dr. Forbes became involved in Ivy’s case through her role at the Child Advocacy Centre, after she was asked by ICU physicians at the ACH to provide a consult. Dr. Forbes reviewed all of Ivy’s medical reports and conducted her own head-to-toe examination of Ivy after she had surgery on September 27, 2017. [ 114 ] Dr.

Forbes testified on her observations of Ivy post-surgery. She described the appearance of Ivy’s head and the surgical incision and the bruising she observed on the tops of both of Ivy’s ears, overlying her left cheekbone, on her left medial thigh, on her right calf, and on the inside of her left arm. She also noted that Ivy had retinal hemorrhages. These were the only visible signs of trauma Dr. Forbes observed. b. Cause of Ivy’s Injuries [ 115 ] Dr. Forbes spoke with both Ms. Wordsworth and Mr.

Bennett about what had happened that morning leading up to the occurrence of Ivy’s injuries, and the immediate aftermath. Dr. Forbes testified that Mr. Bennett described Ivy running to her bedroom and then hearing a thud and a cry. When he went to the bedroom, he found Ivy lying on the floor, face up, with her eyes open and at that point, she was not responsive. [ 116 ] Dr. Forbes testified that the version of events provided by Mr. Bennett did not make sense based on the severe, and ultimately catastrophic nature of Ivy’s injuries. Dr.

Forbes said that the type of injuries she had were consistent with “high-velocity acceleration- deceleration forces on the head, plus or minus impact, the kinds of things that we might see from a car accident, for example”. [ 117 ] Dr. Forbes testified that taking into account all of Ivy’s injuries, her impression was that they were consistent with a traumatic injury. Dr. Forbes went on to say that “when we consider traumatic injury, we have to ask what the mechanism of the trauma is, and in Ivy’s case, the reported mechanism of injury was not sufficient to have resulted in these injuries.

So my conclusion was that it was highly concerning for inflicted injury”. [ 118 ] Dr. Forbes specifically noted the retinal hemorrhages as being important in reaching her conclusion on the nature of Ivy’s injuries. She explained that retinal hemorrhages are not common injuries and the things that cause them are limited. They are seen in birth traumas and CPR, but in both cases, you see only 5 or 6 retinal hemorrhages. Dr. Forbes testified that in Ivy’s case, “she had multiple, 10, 20 […] she had them in multiple layers of her retina”. This presentation was consistent with a traumatic injury.

[ 119 ] Dr. Forbes testified that it was her opinion that the traumatic injury Ivy suffered that gave rise to the subdural hematoma would have been caused by some form of force being applied, which would have had an acceleration-deceleration component. Ivy’s condition would not have simply been caused by a single-impact injury. [ 120 ] Dr. Forbes testified that she saw no evidence of an impact, such as bruises on Ivy’s head or a skull fracture. However, she also explained that some impacts to children’s heads are less obvious than others. Dr.

Forbes said that toddlers’ skulls are harder and do not fracture easily, and visible injuries are going to be dependent on the force of the impact and where the impact is inflicted. 6. Dr. Bamidele Adeagbo [ 121 ] Dr. Adeagbo is a forensic pathologist. He was the assistant chief medial examiner in Calgary from January 2012 until June 2018. He was qualified as an expert in the field of forensic pathology to provide opinion evidence within that field. Dr. Adeagbo’s CV was entered as Exhibit 25. [ 122 ] Dr. Adeagbo performed the autopsy on Ivy on October 10, 2017. Dr.

Adeagbo prepared an autopsy report (the “ Original Report ”) which was entered as Exhibit 26. He also photographed Ivy’s injuries, which was entered as Exhibit 27. a. Cause of Death [ 123 ] Based on his examination of Ivy, Dr. Adeagbo determined that Ivy’s cause of death was blunt force injuries to the head. Dr. Adeagbo explained that Ivy had several bruises to her head. It is difficult to tell whether one bruise or all of the bruises collectively are responsible for Ivy’s death. However, Dr.

Adeagbo testified that the one thing he can tell “is that these either collective or singular injuries or singular events that occur[ed]”, caused an injury to the Ivy’s head, and the injury to Ivy’s head led to her death. b. Ivy’s Injuries [ 124 ] Dr. Adeagbo testified at length about each of the injuries that he documented in the Original Report. Dr. Adeagbo methodically explained to the court, with the visual aid of the photographs he had taken, each of the 13 injuries that he observed on Ivy’s head and neck, the 2 injuries he observed to her trunk, and the 8 injuries he observed to her extremities.

These were the only injuries that Dr. Adeagbo noted on Ivy, apart from the remnants of the surgery that Ivy had on September 27, 2017. [ 125 ] Dr. Adeagbo explained that the injuries Ivy sustained caused her to suffer an acute/hyperacute left frontoparietal subdural hematoma with midline shift. What this meant was that there was bleeding in Ivy’s brain that collected on the left side, so much so that it began pushing the brain from left to right and downwards, trying to expand. The pushing of the brain caused pressure on the brain stem and swelling in the brain.

The brain vessels became compromised, which caused not enough blood to come into the brain or leave the brain, which in turn caused the swelling to continue. This became a vicious cycle, where Ivy’s breathing and all other functions deteriorated, until they stopped all together, at which point, death occurred. Dr. Adeagbo testified that this was the process that ultimately lead to Ivy’s death. c. Timing of Ivy’s Injuries [ 126 ] Dr. Adeagbo testified that based on the presentation of the injuries he observed on Ivy, he believed her injuries would have occurred just a short time before the surgery. Dr.

Adeagbo further explained that based on histologic examination, he believed that the injuries to the back of Ivy’s neck and her trunk occurred at the same time as the injuries to her head. d. Cause of Ivy’s Injuries [ 127 ] In his Original Report, Dr. Adeagbo concluded that “a fall from a short height with the head impact could result in such head injuries. However, the possibility of inflicted injuries cannot be ruled out.” [ 128 ] Dr. Adeagbo questioned how the trip and fall story provided by Mr.

Bennett would result in a very acute hemorrhage as well as injuries to the back of Ivy’s neck and elsewhere on her body. He commented that “it’s not a common thing that a child would fall passively and then develop that type of injury.” Dr. Adeagbo testified that he found it “very suspicious”, but the fact was that the autopsy, by itself, could not make the final determination on the manner of death and that an investigation was required. e. Hypothetical Scenarios [ 129 ] Dr.

Adeagbo was asked if the following hypothetical situation could explain Ivy’s injuries: “an adult, using a closed fist, hit Ivy on the top of her head, grabbed the right side of her head, and pushed or threw her against a wall, and then tripped her so that she fell and hit her head on the floor”. Dr. Adeagbo testified that sequence of events, no matter how it is arranged, could explain Ivy’s injuries. [ 130 ] Dr. Adeagbo was asked if a second hypothetical situation could explain Ivy’s injuries: “an adult lifted Ivy by her ears and shook her”. Dr.

Adeagbo explained that he would not really consider this situation as explaining Ivy’s injuries because she had other injuries apart from just “shaken baby” related injuries that could not be explained. Additionally, the unilateral hemorrhage observed indicates that there was an impact, and might even suggest an acceleration-deceleration event, due to a motion event, like somebody being tripped or falling. [ 131 ] This second hypothetical scenario was modified to include that the adult shaking Ivy also strikes several blows to her head. Dr.

Adeagbo testified that this scenario would explain some of Ivy’s injuries, but not the injuries to her buttocks and the back of the legs. [ 132 ] Dr. Adeagbo testified that while he was unable to say definitively where the impact occurred, he believed that there was impact

to both the right and left side of Ivy’s head which is supported by his finding of bruises on both sides. Dr. Adeagbo explained that the first hypothetical would account for this, where she may have been hit on the head on one side and then the opposite side of her head struck a stationary object, like the floor or a wall. [ 133 ] Dr. Adeagbo said that it was unlikely that Ivy hit her head just once, like with a single trip and fall scenario. But ultimately, there were two possibilities of how Ivy’s injuries occurred: inflicted injuries, or injuries as a result of a fall. 7. Dr. Brooks-Lim [ 134 ] Dr.

Brooks-Lim is a forensic pathologist. She worked for the Office of the Chief Medical Examiner of Alberta since 2011, and held the position of the province’s chief medical examiner from 2017 until March 2020. She was qualified as an expert in the field of forensic pathology for the purpose of giving opinion evidence in the area of forensic pathology, the identification of injuries, and the cause and timing of those injuries. Dr. Brooks-Lim’s CV was entered as Exhibit 16. [ 135 ] Dr. Brooks-Lim was the peer reviewer of the Original Report of Ivy prepared by Dr. Adeagbo.

As part of the quality control process, peer review is completed on certain cases, including those cases that include children under the age of three and any suspicious deaths that have the potential to appear in a court setting. Dr. Brooks-Lim concluded that Dr. Adeagbo’s findings were reasonable and that his report was correct. [ 136 ] In spring of 2018, Dr. Brooks-Lim strengthened the opinion of Dr. Adeagbo, after being asked by the Calgary Police Service to provide more detailed findings. She prepared her own written report (the “ Strengthened Report ”).

The Strengthened Report did not challenge the underlying conclusions made by Dr. Adeagbo in any way. Dr. Brooks-Lim’s Strengthened Report also passed peer review by the deputy chief medical examiner in Edmonton, Dr. Enrico Risso. The Strengthened Report was entered as Exhibit 17. a. Cause of Death [ 137 ] Dr. Brooks-Lim testified that she reached the same conclusion on Ivy’s cause of death as Dr. Adeagbo – blunt force head injuries. That is an injury to the head “as a result of impact or impacts with nonsharp, firm surface or surfaces”. b. Timing of Ivy’s Injuries [ 138 ] Dr.

Brooks-Lim testified that she agreed with Dr. Adeagbo that the injuries on the left side of Ivy’s head were consistent with the injury having occurred on or around September 27, 2017. c. Ivy’s Injuries [ 139 ] Dr. Brooks-Lim explained that the impact sites of the blunt force to Ivy “were located to the left side of her head, the right side of her head, and also to the back of her neck.” [ 140 ] Specifically, Dr.

Brooks-Lim identified two bruises on the left side of Ivy’s head which she said would have had to have been caused by impact to the outside of her head – known as blunt trauma – and were not associated with the surgery itself. Dr. Brooks-Lim also testified that she would characterize bruising to the right side of Ivy’s head, around the subgaleal right temporal bone region, as being “right at the top of the head”. [ 141 ] Dr. Brooks-Lim also identified two locations on Ivy’s ear, an injury to Ivy’s right lateral forehead, and bruising to the back of Ivy’s left calf.

She believed these were all caused by blunt force trauma or impact. [ 142 ] Dr. Brooks-Lim described that Ivy suffered a left-sided subdural hematoma and increased intercranial pressure, so much so that the brain was so swollen that it was being pushed out of the skull into the right side. The brain bleed was only on one side of the head, making it a unilateral subdural on the left side. [ 143 ] Dr. Brooks-Lim testified that Ivy also suffered retinal hemorrhages and optic nerve injuries. d. Cause of Ivy’s Injuries [ 144 ] Dr.

Brooks-Lim testified that the unilateral subdural bleed has clinical significance in terms of the determining the mechanism of the injury: It can be due to an impact on the left side of the head, a so-called coup type injury or blow on the left side that causes this bleed. However, it's also possible to sustain a blow on the right side of the head on the outside, which causes the brain to move inside its rigid box of the skull and impact the left side of the skull, causing the bleeding.

It's what we refer to as a contrecoup type injury or basically an impact on the right side of the head from the outside that causes bleeding on the opposite side of the impact. [ 145 ] In terms of distinguishing whether Ivy had a coup or a contrecoup injury, Dr. Brooks-Lim said: In this case, because I have bruising on both the left and the right side of the head, it is possible that this injury could be a coup injury, a contrecoup injury, or a combination of both.

For me, the importance was the fact that I have bruising on the right side on the outside of the scalp that could explain a contrecoup type of injury, and the right side of the scalp is nowhere near the surgical intervention on the left side of the scalp. [ 146 ] Dr. Brooks-Lim testified that the injuries to Ivy’s eyes could have been caused by the raised intercranial pressure from the hematoma itself or from an acceleration-deceleration injury. In Ivy’s case, she opined that these injuries, and specifically the diffused

nature of the retinal hemorrhages, indicated the potential that it could be due to an acceleration-deceleration type event. [ 147 ] Dr. Brooks-Lim explained the different ways that an acceleration-deceleration type of injury could result from a variety of causes, including shaking, a motor vehicle accident and a kick to the head. [ 148 ] Dr. Brooks-Lim explained that shaking type injuries are usually seen in children under the age of one because their heads are quite heavy compared to the rest of their bodies and they do not have full control of their neck musculature.

This means that they are unable to counter any effects of shaking, and so their head moves with this acceleration-deceleration with minimal resistance. e. Hypothetical Scenarios [ 149 ] Dr. Brooks-Lim was asked if the following hypothetical scenario could explain Ivy’s injuries: Ivy fell from a standing position and struck her head on a hard, immovable object. Dr. Brooks-Lim explained that it was unlikely that such a scenario: (

i) would account for the totality of Ivy’s injuries; or (ii) would have sufficient force to cause a subdural hemorrhage. Specifically, Dr. Brooks-Lim noted that Ivy had “at least two blows to the left side of her head, two blows to the right side, a blow to the back of her neck, as well as other injuries.” [ 150 ] The hypothetical situation was modified to include Ivy falling from running and then hitting her head. Dr. Brooks-Lim testified that the situation may explain some of Ivy’s injuries, but not all of them because, again, there were multiple impact points. Dr.

Brooks- Lim said that she finds it unlikely that just running and falling would cause the extent of the subdural bleed seen in Ivy because otherwise “the number of children we see coming into the hospital with this would be significantly higher.” [ 151 ] Dr. Brooks-Lim was presented another hypothetical situation: an adult struck Ivy at the top of the head with a closed fist, the adult takes Ivy by the right side of the head and throws the left side of her head into a wall, the adult then trips Ivy causing her to fall and hit her head on the hard floor, and then Ivy runs a short distance before falling again. Dr.

Brooks-Lim testified that the sequence of events would fit with the injuries observed on Ivy. [ 152 ] Dr. Brooks-Lim was presented with one final hypothetical situation: an adult grabs Ivy forcefully by the ears and shakes her rapidly back and forth, the adult inflicts blows on Ivy’s head, Ivy is released and runs a short distance before falling and striking her head on a hard object. Dr. Brooks-Lim testified that the hypothetical could explain the injuries observed on Ivy. 8.

Evidence of the First Responders [ 153 ] Two firefighters and two paramedics who attended the Bennett Residence on September 27, 2017, testified at trial (collectively, the “ First Responders ”). I found them all to be credible and reliable in their testimony. [ 154 ] The call to the First Responders came in for a non-responsive child at just after 11:30 am. The fire department arrived first on scene at 11:35 am. The paramedics arrived on scene just after 11:40 am. [ 155 ] When the fire department arrived at the Bennett Residence, they found Ivy lying on her back, face upwards, in the middle of the living room.

She was unconscious and unresponsive to any painful or verbal stimuli. The firefighters did not notice anything that caused alarm right away. Her breathing, however, was sporadic, so they administered oxygen through a pediatric mask and monitored her vitals until paramedics arrived. [ 156 ] When the paramedics arrived at the Bennett Residence, they took over care of Ivy. They identified a head injury caused by an unknown mechanism.

Once they were satisfied that Ivy was stabilized to move, she was carried to the ambulance. [ 157 ] The ambulance left the Bennett Residence at 12:08 pm and Ivy was transported to the ACH. They arrived at the ACH at approximately 12:18 am. [ 158 ] The First Responders testified that Mr. Bennett had told them that Ivy was acting up that morning and was told to go to her room. Mr. Bennett described seeing Ivy run into the bedroom, and then heard her scream. Mr. Bennett specifically noted that the time that this event occurred was 11:13 am. [ 159 ] One firefighter testified that Mr.

Bennett told him that when he first entered the bedroom, Ivy was rigid and almost seizing. The second firefighter testified that Mr. Bennett told him that when he entered the bedroom, Ivy was crying and then went unconscious. [ 160 ] Mr. Bennett told both firefighters that Ivy hit her head, though he had not observed it. At first, he said that she hit her head on the bed, but when the second firefighter took Mr. Bennett to go look at the bedroom with him, Mr. Bennett was unsure as to what Ivy had hit her head on. [ 161 ] Both of the paramedics as well as both of the firefighters testified to observing that Ms.

Wordsworth’s hair was wet. 9. Evidence of Ms. Wordsworth [ 162 ] As a preliminary comment, I found Ms. Wordsworth to be a reliable and credible witness. I make this assessment because Ms. Wordsworth’s testimony was consistent with the statement she gave to police and what she told the Undercover Officers. She did not overstate anything, and admitted when she could not remember something or did not know an answer to a question.

Notably, in the face of an intensive cross-examination, she was unrattled, agreeable to many points put to her by Defence counsel, was firm on all her answers and her story remained consistent throughout. [ 163 ] Ms. Wordsworth testified that she was Ivy’s mother and Christopher Wick was Ivy’s father. She was 17 years of age when Ivy was born. Ms. Wordsworth said that she and Ivy’s father ended their five-year relationship in 2017. After their separation, Ivy would

spend every second weekend at her father’s house. [ 164 ] Ms. Wordsworth testified that she began dating Mr. Bennett in January, 2017 and they moved in together in February, 2017. Ms. Wordsworth said that along with Ivy, Mr. Bennett’s three-year old son (the “ Bennett Son ”) from his previous marriage also lived with them on a part-time basis. [ 165 ] Ms. Wordsworth testified that in September, 2017, she was working at 7-Eleven. Her normal shift would be from 3:00 pm to 11:00 pm. She said that since Mr.

Bennett was not working at the time, he would look after Ivy while she was at work. [ 166 ] On September 27, 2017, Ms. Wordsworth testified that she was supposed to work from 3:00 pm to 11:00 pm that day. [ 167 ] Ms. Wordsworth described what happened on the morning of September 27, 2017. She and Mr. Bennett woke up between 8:00 am and 9:00 am, she got Ivy out of bed, and went to get her some cereal for breakfast. [ 168 ] Ivy was to eat her cereal at the dining room table but started throwing a tantrum before Ms. Wordsworth was able to give her breakfast. As a result of this behaviour, Ms.

Wordsworth said that she put Ivy in the corner in the dining room area. She then went outside to have a cigarette and Mr. Bennett followed her out. [ 169 ] Ms. Wordsworth testified that when she and Mr. Bennett went back into the apartment, Ivy was still fussing in the corner. She left Ivy in the corner and went to have a shower, leaving the bathroom door open and the shower curtain closed. Mr. Bennett was in the living room at this point. She said she saw him load a video game into the system, and she did not see him wearing any headphones. [ 170 ] Ms.

Wordsworth explained that she was in the shower for maybe five minutes when she called out to Ivy to go to her room to lay down because Ivy was continuing to scream and yell. She watched Ivy run past the bathroom and almost immediately after this, Ms. Wordsworth said she heard a thump and a scream. [ 171 ] Ms. Wordsworth said that she yelled to Mr. Bennett to go have a look and saw him going down the hallway to the bedroom. Mr. Bennett began yelling for her to come immediately. Ms.

Wordsworth said she then got out of the shower and ran from the bathroom to the bedroom as quickly as she could. [ 172 ] When she got to the bedroom, Ms. Wordsworth testified that Mr. Bennett was standing by the bedroom window, holding Ivy in his arms. Ivy was just laying there and Mr. Bennett was trying to wake her up by saying her name. [ 173 ] Ms. Wordsworth said that Mr. Bennett then placed Ivy in her arms and she sat down on the bed and tried to wake her up. Ms. Wordsworth said that Mr. Bennett left the room for a moment. He returned with a package of frozen meat or vegetables.

He began applying it to Ivy in an attempt to revive her, which did not work. [ 174 ] Ms. Wordsworth testified that Mr. Bennett left the bedroom to make the call to 911, upon her instruction to do so. He came back into the bedroom and told her that First Responders were on their way and to move Ivy into the living room so they had easier access, which she did. [ 175 ] Ms. Wordsworth testified that once Ivy was lying on the living room floor, she changed into some dirty clothes that were sitting right there.

She then went outside to wait for the ambulance and the fire department. [ 176 ] When the fire department arrived, Ms. Wordsworth said that she explained to them what Mr. Bennett had told her – that Ivy had fallen and hit her head. They examined Ivy, and waited for EMS to show up. Once EMS arrived, they transported Ivy and Ms. Wordsworth to the ACH. [ 177 ] Ms. Wordsworth testified that once at the ACH, Ivy was examined by the doctors and taken in for surgery. She did not see Mr. Bennett until after they had both spoken with CPS Officers. [ 178 ] In cross-examination, Defence counsel suggested to Ms.

Wordsworth that she was so frustrated by Ivy’s behaviour that when she saw Ivy running past the bathroom, just seconds after directing her to go to her bedroom, Ms. Wordsworth lost her control. Defence counsel suggested to Ms. Wordsworth that she got out of the shower, grabbed Ivy by the ears and shook her hard and repeatedly in an attempt to get her to stop screaming, before releasing her. Ivy then ran into the bedroom, and soon thereafter, Ms. Wordsworth heard the scream and thud, and then quickly went back into the bathroom. [ 179 ] Ms.

Wordsworth adamantly denied this version of events posed to her by Defence counsel on cross-examination. E. The Evidence of Mr. Bennett [ 180 ] Mr. Bennett testified in his own defence. A voluntary statement he made to the Detective Acosta of the CPS on September 27, 2017 was admitted by consent (the “ Bennett Statement ”). The Undercover Statement was admitted to the trial proper at the conclusion of the Hart Voir Dire . [ 181 ] As a preliminary comment, I will reserve my findings regarding Mr. Bennett’s credibility and reliability as a witness to my analysis because W(

D) is engaged. Mr. Bennett’s testimony must be considered in ligh

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