R v LL, 2021 ABQB 384

Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Court of Queen’s Bench of Alberta Citation: R v LL, 2021 ABQB 384 Date: 20210514 Docket: 170965198Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - L.L. Defendant _______________________________________________________ Decision of the Honourable Madam Justice Avril B. Inglis _______________________________________________________

Background [ 1 ] S was born in the spring of 2010, premature by nine weeks. She died October 16, 2015. [ 2 ] The accused, L.L., is S’s mother. S had an older sister and a younger brother. In October 2015, the family of four lived together in an apartment located on 124 Street in Edmonton, Alberta. [ 3 ] S had a challenging first year of life. In January 2011, L.L. entered into a Custody Agreement with Children’s Services. Her three children were ultimately placed in foster care and a Temporary Guardship Order was granted for each of them.

L.L. had gone through a similar experience in her early years. [ 4 ] In the following years, L.L. worked with various agencies and eventually gained overnight visits with her children in spring 2014. This included successfully completing a parenting assessment, achieving sobriety and taking anger management classes. All three children were returned to their mother’s care in March 2015, when the Temporary Guardianship Order was converted to a six-month Supervision Order.

This status change was identified as justified given the significant progress L.L. had made, including achieving stable housing and maintaining her sobriety. [ 5 ] In September 2015, at the end of the supervision period, support workers concluded their involvement with the family. L.L. had met all the requirements of the Supervision Order and it was determined that she was able to care for her children without ongoing intervention or supervision. [ 6 ] At approximately 1:30 a.m. on October 13, 2015, L.L. called 911. S, she said, had fallen out of her bed.

While S initially had been crying, at that time she was not responding to her mother and required an ambulance. When paramedics arrived, L.L. was home alone with her three children. S was unconscious and was urgently transported by ambulance to the Stollery Children’s Hospital. Her condition worsened quickly and she required life saving measures shortly after arriving in the emergency room. Head trauma was soon diagnosed and S was taken into surgery at 5:00 a.m. Immediately, the surgery showed that the damage to S’s brain, primarily swelling and bleeding, was untreatable.

The neurosurgeon quickly closed the surgical wounds and bandaged her head. [ 7 ] On October 15, 2015, an MRI scan further confirmed S had suffered a devastating brain injury. Her outward symptoms were consistent with that imaging. She never regained any consciousness. S’s family received and followed the advice of the treatment team to withdraw life sustaining treatment. S died on October 16, 2015. Charges [ 8 ] L.L. is charged with the second-degree murder of S.

The Crown argued in the alternative the included offence of manslaughter. [ 9 ] The accused is also charged with assault with a weapon to wit, a spatula and a belt. [ 10 ] Finally, L.L. is charged with failing to provide the necessaries of life to S. This count is not particularized in the indictment. Theory of the Crown [ 11 ] The Crown relies on medical expert opinion and circumstantial evidence. It is undisputed that S died due to significant head trauma.

The Crown argues that the totality of the opinion evidence should lead this Court to conclude that the trauma was proximate in time to the paramedics arriving to S’s side. Accordingly, they focused their argument on the conclusion that the injury was caused at approximately midnight on October 13, 2015, 90 minutes before the accused called 911. They further argue that the medical evidence should lead the Court to determine the injury was inflicted by another person, who was an adult.

Once the Court makes those findings of fact, they argue that the accused had the exclusive opportunity to cause the injuries to S. [ 12 ] The medical experts described the severity of the force required to cause the brain injuries they observed, several of them comparing the injuries to those that are often found after a motor vehicle collision. [ 13 ] Starting with the phone call to 911 and throughout the following medical treatment and police investigation, the accused described four potential causes of the injuries suffered by S, including that she had fallen off of playground equipment days before the 911 call and had fallen from the accused’s bed ninety minutes before the 911 call.

These were presented to several of the expert witnesses and each expert discounted those explanations as possible causes for the injuries. [ 14 ] Some experts offered opinions about what could have caused the injuries. The opinions were substantially consistent, but varied in detail and precision.

The Crown asks the Court to accept the conclusion that, considering there is no evidence of a motor vehicle accident or some other drastic incident, the brain injury was inflicted deliberately, and that the force required was such that only an adult could have caused such damage. [ 15 ] The timing of the injuries to S is potentially important to the Crown’s ability to prove the counts charged. Crown counsel focused the Court’s attention ultimately to the opinion of Dr. Melanie Lewis, who opined that S would have been symptomatic immediately and obviously.

While other experts opined that the brain injury could have been hours or even a few days old, Dr. Lewis’ opinion, based on S’s presentation, was that the injury was experienced shortly before the 911 call. Based on the accused’s own

statements, particularly to 911, the Crown argues that S exhibited the immediate and obviously dire symptoms approximately 90 minutes before the accused called for help, which was the time the injuries were initially caused. [ 16 ] The Crown’s theory is based on the fact that L.L. was S’s only caregiver and there were no other adults in the apartment on the evening of October 12, 2015 into the early morning hours of October 13. S’s injuries were not caused by any accidents, nor were they caused earlier than on or about midnight on October 13, 2015.

Only the accused had the opportunity to inflict those injuries and did so. As her actions caused S’s death, the Crown argues they have met their burden of proving beyond a reasonable doubt that L.L. is culpable of either second degree murder or manslaughter. [ 17 ] Immediately after S suffered the injuries she was symptomatic, but the accused failed to call 911; instead she made efforts to clean and dress S before eventually seeking help.

That delay, according to the Crown, was a failure to provide the necessaries of life to S. [ 18 ] During the investigation into S’s brain injury, her older sister told the police that the accused would sometimes hit S – using either a white belt or a spatula. That evidence accounts for the assault with a weapon charge, separate and apart from the underlying assault that is theorized as the basis for the culpable homicide charges. Evidence Support workers and S’s medical doctor prior to the injuries [ 19 ] The Crown called various witnesses to testify about the months leading up to S’s death.

Millicent Asiedu was a caseworker for Child and Family Services (CFS). Her job was to assess safety, risk, and protective factors to determine if there would be continued department involvement with the family. She worked with the family starting in January 2015 and described the significant transition support provided by CFS and Wapski Family Services. She met with L.L. and her children and ensured L.L. was meeting with the family support workers. She noted that at times L.L. was irritable, complained of “nosiness” and sometimes would hang up on her.

She met with the family once per month during the supervision period of March – September 2015, including seeing all three children with their mother present. [ 20 ] In July 2015, L.L. asked for help getting bed rails as S had been falling out of bed. Nothing was done about it by the support workers, and it was not mentioned again by L.L. [ 21 ] Ultimately, Miss Asiedu determined that L.L. met all the requirements of the Supervision Order’s conditions, had achieved stability, and no more involvement by CFS was required for the family.

S had no medical problems throughout this time except a skin rash. [ 22 ] Prior to this time, support workers had noted that the children were affectionate, and L.L. had learned to meet their needs. S had some problems with emotional regulation. She was slow to attach, but saw L.L. as a protective figure. Miss Asiedu never saw signs of abuse, bruises or obvious weight loss. She specifically found that L.L. had made tremendous strides to be able to parent her children again and they were all thriving.

She closed the file on September 9, 2015 after L.L. cancelled a follow up meeting for Miss Asiedu with the children. [ 23 ] Laurie Cardinal worked for the Wapski Mahikan Society, a CFS partner agency on Alexander Reserve. Her job was to work with Alexander families, helping them to find resources in Edmonton; for example, housing, programming and addiction treatment. She started working with L.L. on February 6, 2015 – before the children returned to living full time L.L. She felt that S was somewhat resistant to her help after the children were back home living with their mother.

She also received a request from L.L. for bedrails to keep S from falling out of bed. None were provided for L.L. She had no concerns about home life or abuse when working with L.L. She last met in person with the children on June 15, 2015. [ 24 ] Dr. James Macdonald is a general medical practitioner. He was not called as an expert. He testified that L.L. brought S to see him twice in 2015. The first time was in June for diarrhea, and L.L. asked if S could be lactose intolerant. In September 2015, L.L. reported S was suffering from weight and stomach issues, so he referred her to a pediatrician.

At 23 pounds, S was in the 5 th percentile for weight and 10 th for height. According to the evidence at trial, this was a significant loss from a previous medical weigh in taken in January 2015. He did not notice signs of child abuse. He testified that L.L. did not bring S to see him in October 2015 reporting a fall at a playground or down any stairs. S’s siblings [ 25 ] S’s brother T was 4 years old on October 13, 2015 and has no real memory of the events.

He was interviewed by the Zebra Centre on October 14, 2015, but did not adopt the contents of that recorded interview in court and it was not admitted as evidence. [ 26 ] S’s older sister J was 10 years old the night S attended the hospital. She was interviewed on October 13 and again on October 14, 2015. Although it was a challenging experience for her, J watched these interviews in court and adopted their contents during the trial. The videos were admitted as part of J’s evidence.

She agreed during her viva voce evidence that she had forgotten many things in the 5 years since the events. [ 27 ] J said that her mother woke her during the night of October 13, 2015 and asked for her help to bathe S, then dry and dress her. L.L. tried to wake S and give her a bath. The accused washed S’s face and J helped dry her hair. L.L. was crying and called her father, then an ambulance.

[ 28 ] J was asked about what happened to S and said she did not see S fall out of bed. J confirmed that S had fallen at the park before that night, but J had not seen the actual accident; rather, she saw that S was lying in the sand afterwards. It is inferred from her evidence that L.L. was not present at that time. J commented that S fell regularly. She identified the Inglewood playground (where J attended school) reasonably well to allow officers to attend for photos and measurements. [ 29 ] The issue of opportunity to cause the head injury to S was addressed through J’s evidence.

She said that they did not have babysitters at L.L.’s home, nor did anyone else live there. J did not recall anyone ever staying the night. Finally, J said that only her siblings and mother had been in the home, all going to sleep together in the same room, the night S went to the hospital. [ 30 ] When asked more direct questions about her mother’s treatment of the children, J said that L.L. used timeouts or restricted privileges for discipline. During her second interview, J agreed with suggestions that L.L. used other forms of punishment which included striking S with a spatula or a belt.

She specified that these punishments were for wetting the bed or not listening. However, in the recording and in court J denied seeing any such corporal discipline used by L.L. against S, but only hearing such things, or being told about them. J also said that she herself had hit S at times. Accused’s 911 call [ 31 ] At 1:29 a.m. the morning of October 13, 2015, the accused called 911. The call lasted 9 minutes. The accused told dispatch that about an hour earlier, S had fallen out of bed and had hit her face on a dresser. At that time S was crying.

She complained that S would not wake up, she was unresponsive and was breathing funny. She also told dispatch that S had fallen at the park 2-3 days earlier, but that she was okay although she was bruised pretty bad. L.L. was crying during the phone call. Evidence of first responders [ 32 ] The Crown called several of the paramedics that attended the accused’s home after she called 911 for S at 1:29 a.m. The senior paramedic on scene, Catherine Angelopoulos, was the primary care provider for S. The paramedics were at S’s side by 1:39 a.m. S did not respond to any physical stimulus.

Her whole forehead was swelling and bruised. She had bruising around her eyes. While Miss Angelopoulos noted a “deformity” in S’s spine, it was not further identified or explained by subsequent medical practitioners. S had bruises on her arms and legs; a very low pulse, irregular breathing and non-reactive pupils. S seemed emaciated and small for her age. Given the injuries and timeline, EMS decided to call police based on what they determined were suspicious circumstances. In the ambulance S’s limbs began retracting which, to the paramedic, meant that the brain was swelling and pushing down on the brain stem.

S’s condition deteriorated during transport. [ 33 ] Paramedic Matthew Coulter heard L.L. say S had fallen from monkey bars when L.L. was not there, and fallen out of bed an hour before response arrival. [ 34 ] Other first responders (fire, paramedics, and police) made similar observations. They noted bruises on S’s arms, chest, abdomen and legs. She was very skinny – many who attended used the word “emaciated” to describe S. S was never conscious during the time that first responders were attending to her.

All first responders confirmed that they followed protocols for a life-threatening situation throughout the time they were attending to S. Investigators [ 35 ] Constable Parker arrived at L.L.’s apartment after the paramedics were already on scene. He stayed there after paramedics left with S. L.L. identified herself to him; she, J and T were the only people present. L.L. told her about the playground incident on Friday night (which was October 9), including that L.L. had not been there, but was told that when S had fallen she hit multiple structures on the way down.

As far as she knew, S had not lost consciousness. S had a headache, was lethargic and not eating since then. S had a sore chest and head, but L.L. didn’t think she needed to see a doctor. She gave S Motrin and a cold compress. [ 36 ] L.L. described that on the night of the hospital visit she woke after S had fallen out of bed, landing on the open drawer. S was not responding verbally or moving limbs. She described cleaning S up and wiping away blood and also calling her own father before calling 911.

L.L. was tidying and putting on makeup during her time with Constable Parker, while waiting for her father to come take her to the hospital. [ 37 ] Detective Sauter met with L.L. at the hospital on October 13, 2015 to seek her signature. He did not ask questions of her, but L.L. volunteered that about a week earlier S had fallen off something at the park and did not receive medical attention. She also stated that a day before the hospital attendance, L.L. said she had fallen on the stairs and that L.L. fell on to S. S had medical attention for that incident.

Then she said S had fallen off the bed and possibly struck her head. They had all been sleeping in the same bed, she woke to find S wedged between the bed and the dresser. The drawer was open. L.L. also told him about her CFS and alcoholism history. [ 38 ] On October 13, 2015, at around 11:00 a.m., Cst. Tarrabain observed L.L. was crying and distraught when she came to sit by S’s bed. He overheard her tell a nurse that S was on the toilet and tried to prop herself up, but slipped and fell into the toilet with her legs up. [ 39 ] L.L. was arrested on October 27, 2016.

At the request of the Edmonton Police Service (EPS), RCMP members attended a home located on Alexander First Nation where they had been informed L.L. lived. The spoke with a woman through a window, but she refused to provide identification. The members believed it was L.L. based on her appearance and a visible tattoo. This person stopped speaking with the police and closed the window. The members obtained a telewarrant, entered the house and searched for L.L.

The accused as not located, having fled the residence while members had been waiting for the warrant. [ 40 ] L.L. was eventually found laying in a field hours later, arrested, and then transported to the RCMP detachment and then to the

Sturgeon Hospital. There, Detective Greening from the EPS took over her custody and transported her to EPS Downtown Division holding cells. Interview with Detective Ressler - October 28, 2016 [ 41 ] After her arrest, L.L. gave a video recorded interview to Detective Ressler. It was admitted into evidence before the Court after a voir dire .

L.L. spoke of her hard work to get her kids back from CFS, and commented regretfully that she had not seen her children since March 2016. [ 42 ] When first describing the events of October 12-13, 2015, L.L. said she and her three children all went to sleep in her bed together the night before S was admitted to hospital. She sensed S moving against her back. S was sleeping on the outside edge of bed. She heard crying. S was on her stomach with her head between the bed and dresser. S was trying to pull herself out of that position and L.L. helped her.

S was bleeding and L.L. took her to the bathroom to wipe off the blood. She yelled for J, then sat on her bed and called 911, but dropped the phone and accidentally disconnected. 911 returned the phone call. She followed their first aid instructions until EMS arrived. When she heard they were taking S to the hospital, she started packing a bag for S. [ 43 ] When Detective Ressler told her that T had alleged seeing her assault S, L.L. replied that it was T who was mean and he would slap and otherwise hurt S.

L.L. described a time a couple of days before S went to the hospital when T pushed S and she fell sideways and hit her head on the floor first, flipping all the way over. She did not see the push, but entered the room as S fell and T ran away. S told her mother that she was okay, but that later she had a headache. L.L. gave her children’s Tylenol. S didn’t play much after that incident.

S stopped complaining of a headache for 2 days, but on Thanksgiving (October 12, 2015) she asked for medicine again for a headache. [ 44 ] When Ressler suggested to L.L. that kids do not get injured this badly from a fall from bed, L.L. reiterated: the fall out of bed was not the only fall S had had recently. S fell at the park, down the stairs and when T pushed her. L.L. also said that S fell in the bathtub and had bumped her head, but she was alright. That was either the same day she called 911 or three days before. [ 45 ] After the fall at the park L.L. told Detective Ressler that she took S to the doctor.

She did not name the doctor, but L.L. recalled that he gave her eight tiny bottles of Tylenol. (Dr. Macdonald said he did not see S for any reason after September 2015 and that he had not given any samples of children’s painkillers to L.L. He agreed that he does receive samples and that he might give one or two, but it is not his practice to give 8). [ 46 ] When asked for particulars of these accidents, L.L. said that the park fall came first and S was bleeding from her head at the time. S saw the doctor, then L.L. went in to see the doctor. Dr.

Macdonald said he checked to see if he’d made a notation for S accident in S’s chart, but had found none. [ 47 ] After S fell from the bed, L.L. called her father first because she did not know how to deal with what was happening. He told her to call 911 and she did. [ 48 ] She denied ever striking S, but said that T did. She used timeouts instead for discipline. She blamed J and T for hurting S and said that they were both lying when they said she physically abused S. Police scene investigation [ 49 ] Members of the EPS remained at L.L.’s apartment after she and the children left to maintain scene continuity.

Pursuant to a subsequent search warrant, a team entered to take photographs and measurements from the bedroom, and look for relevant physical evidence. Swabs were taken of suspected blood smeared on the closet frame and bathtub with a hemastix. The hemastix showed the smear to test positively for blood; however, no further testing was done to the blood to determine who’s it was. The bed sheets also showed what could be blood stains, but were not further tested. [ 50 ] The officers noted that the apartment was notably very clean, except for the suspected blood identified.

No blood was found on the dresser where L.L. said S hit her head as she fell out of bed. [ 51 ] Police obtained the following measurements, which were later used to ask experts for opinions about likelihood of injury causation in various ways: • Queen-sized bed, 81 cm high; • 11 cm between that bed and dresser; • Dresser, 76 cm high; • Top of broken drawer, 46 cm.

No evidence was called to show if the break appeared recent or not (such as broken pieces still nearby); and • Observations of stairs in apartment building – nine steps up to second floor, then eight plus seven to the third floor. [ 52 ] On November 11, 2015, police attended Inglewood Park, which was nearby and was identified by J in a police interview as the playground she and S were at the day S fell from the monkey bars, and noted the following: • Solid metal monkey bars (static), range 1.83 meters from ground to bar to 2.01 meters from ground to bar; • Swinging rings, 1.88 meters from them to ground;

• A structure on the east side of the park, 2.6 meters from the top of the structure to the ground; • Swinging bars, 1.58 meters to 1.84 meters from the bars to the ground; • Two gliders, 2 meters above the ground; and • The playground itself had a sand base. Medical evidence and opinion [ 53 ] Expert medical opinion regarding S is key to this Court’s determinations. The cause of death and exact mechanism of injury are integral pieces of evidence in this matter. Dr. Kutnikoff, pediatric emergency physician [ 54 ] Dr. Tricia Kutnikoff is a pediatric emergency room physician.

She was on shift at the Stollery Children’s Hospital in the early morning hours of October 13, 2015 and became S’s treating emergency room physician. S arrived by ambulance at 2:17 a.m. after being treated on scene and then transported there. She observed that S had bruising around both eyes and significant bruising to her forehead, behind her ears, chest, abdomen and extremities, as well as abrasions and scabs. There was an abrasion on the left upper part of the head on the area of the scalp, behind her left ear. Dr. Kutnikoff categorized S’s injuries to be category 1: life threatening.

She listed the various observations she made that were indicative of a brain injury. While S was in the emergency room S lost her pulse, needed intubation and chest compressions. [ 55 ] Dr. Kutnikoff ordered a brain CT scan, which showed a significant brain bleed on S’s left side. The doctor called in the pediatric neurosurgery team. S went to surgery at 4:55 a.m. Dr. Kutnikoff was not introduced to the Court as an expert, and offered no opinion evidence about the cause of S’s injury. Dr. Jaremko, radiologist [ 56 ] Dr.

Jacob Jaremko testified as an expert after he was qualified to provide opinion evidence about the analysis and

interpretation of x-rays and radiology imaging, as well as the mechanism and timing of both acute and chronic injuries. He did not treat S directly, but reviewed the following CT scans taken of her on October 13, 2015: CT scan of her head, torso and spine, taken between 4:19 a.m. and 4:34 a.m. and a CT scan of her head taken at 2:58 p.m. [ 57 ] He described the first CT scan as showing a large subdural hematoma, which was explained as bleeding in the fluid space of S’s brain. The bleeding was primarily on her left side.

S’s brain was swollen particularly near the left side hematoma which pressed her brain tissues to the right. [ 58 ] These early morning scans also revealed damage to S’s liver and kidney. Dr. Jaremko did not expand on these injuries in great detail, but did comment that lacerations from trauma can cause the indicators noted on the liver, but that there are “many kinds” of liver lesions that can cause the spots seen on the liver, including those caused by infection.

Similarly, he noted that there are “many possible” causes for the damage seen to S’s kidney, but that what he observed is often seen in injuries or problems with the blood vessels to the kidneys. Specifically, he noted the liver injury could be old or new, but that the kidney injury had existed for “a long time.” [ 59 ] The second head CT scan was taken after surgery, when a portion of S’s skull was removed (as described below). Dr. Jaremko noted that the brain was more swollen and showed more dark tissue, but there was less pressure on the brain given there was more room once S’s skull was opened.

He gave more detailed evidence of the various indicators of injury to S’s brain from this scan. The left side of the brain showed death of brain tissues. He identified traces of blood in areas that had not had visible blood in the earlier scan.

Specifically, there was bleeding in the corpus callosum, the structure between the two sides of the brain, which “generally is seen in cases of shear injury or diffused axonal injury, which is something we look for as a marker of a very -- of a high-force trauma to the brain.” He said that is “often due to shear forces in trauma.” “Shear injury is a sign for me of an acceleration-deceleration kind of injury.” Like other medical experts, he used an example of a car accident, where the vehicle and parts of the body stop more suddenly than others; the brain often continues moving within the skull, causing this type of tearing. [ 60 ] He opined that the findings in S’s brain were almost certainly due to trauma, stating “an injury such as this generally requires a large amount of force to generate” and “I would categorize this scan, the injuries I’ve described with the hematoma, blood in many different sections, cerebral edema, you know, imminently compressing the brain, as a major trauma, high-impact trauma, which is very concerning.” He went on to say: Being aware that subdural hematoma is the largest problem that this patient had at 3:00 in the morning, and the most common cause of a subdural hematoma in children is actually non-accidental injury, and so I was quite concerned.

Especially when you look at the additional injuries which suggest a shear injury, the corpus callosum bleed, the blood along the falx, and these are typical for shaken impact syndrome, which is the kind of shear force kind of injury that is frequently seen in non-accidental trauma. [ 61 ] He listed high-impact injuries (such as S’

s) as the kinds of things caused by high speed motor collisions, gunshots and “people attacking people” and that S’s brain injuries are “compatible with shaken impact syndrome.” This syndrome was not further explained. [ 62 ] When asked about various potential causes of S’s injuries, Dr. Jaremko was confidently dismissive. Specifically, he said that falling from your own height to the ground is low impact, and something that should not cause very much injury. His answer was the same regarding falling from 5 feet high monkey bars onto sand, or from a regular height bed. He did say that falling down stairs could be

high or low impact, but did not elaborate. [ 63 ] He said that the injuries he observed on the imaging could have happened at one time or been caused by repeated injuries that occurred at different times. Dr. Jaremko said that (considering the brain, liver and kidney injuries together) he became worried the injuries were non-accidental, and they were much worse than what would normally been seen after a fall from monkey bars and then off of a bed (as had been relayed to him as what the family said had occurred). [ 64 ] Regarding timing of the occurrence of the injury, Dr.

Jaremko said that it is difficult to precisely date intracranial bleeding and cerebral hematomas. The images showed some bright areas and dark areas which he said could mean the bleeding was recent (within a few hours) or new bleeding on top of old bleeding, as from a repeated injury.

He theorized that: given the appearance of the brain with the edema that was present at the first scan but got much worse over the next few hours, I would say more likely even sooner than -- even more acute than two or three days, but I guess it’s possible it could be within a couple of days. [ 65 ] It is inferred that he meant the injuries could have occurred up to two days before the first scan.

He was not more specific than that, but also deferred to the neurosurgeons who, he said, had the “advantage” of seeing the actual blood and tissue, and others whose expertise is not in imaging (as his is), but clinical presentations of brain injury. Dr. Aronyk, pediatric neurosurgeon [ 66 ] Dr. Keith Aronyk was qualified by the Court as an expert in pediatric neurosurgery. He performed the urgent craniotomy between 5-7:30 a.m. on S in response to the brain injury identified by Dr. Jaremko. Prior to surgery, Dr. Aronyk indicated that (like Dr.

Jaremko) the first brain CT scan could indicate a blend of an acute-on-chronic injury. There was an acute bruise on the CT scan on the right side of her forehead, which was also visible externally and which correlated with the left sided hematoma. However, even before surgery, he recognized that S’s symptoms (particularly her fixed and dilated pupils and the shift in her brain from the midline over to the right) were severe and he was concerned that she likely had a low chance of recovery. [ 67 ] The surgery started with a craniotomy, which required removal of a flap of bone in order to see and access S’s brain.

Dr. Aronyk described that upon seeing S’s brain during surgery, he changed his initial belief, and attested that there was no chronic injury or a previous hematoma (which could have allowed the brain time to compensate to an old, slow, growing injury), but that the injury was exclusively acute with fresh bleeding. S’s brain had shifted from left to right and had herniated in an upward-downward direction. The dura (tissue that surrounds the brain) was extremely tight and blue in appearance, indicating new, hyperacute, bleeding underneath.

Upon opening the dura to access the brain and to attempt to stop the bleeding, S’s brain swelled immediately and drastically; Dr. Aronyk determined that the injury was untreatable and ended the surgery by quickly closing and bandaging S’s head. He was not able to secure the removed bone to her skull because of the swelling underneath. At that point, he had concluded that brain death was certain. [ 68 ] Dr.

Aronyk described that “it looked as if there was force imparted to the left ( sic, based on a previous statement about the bruise on the forehead, this is likely meant to be right) side of the skull with a rotational movement or a swirling that probably tore one of those veins and caused the subdural hematoma on the other side, (in) a coup-contrecoup kind of pattern.” That meant that a blow (the coup) to one side of the head can cause injury to the brain, as the brain moves, swirling, within the skull and also experiences a force against the bone on the opposite side (the contrecoup).

In S’s case, he presumed that the bruise noted on her right forehead correlated with the subdural hematoma to the left side. [ 69 ] Dr. Aronyk stated that an injury to the brain like S’s would usually be seen in the case of a car accident, which would also normally include multiple traumas to internal organs. Further, he stated that falling out of a bed the height of the accused’s, whether or not S’s head hit a dresser drawer on the way down, would not cause this brain injury. The force caused by such a short fall would not be sufficient. [ 70 ] About the crucial legal issue of when the injury occurred, Dr.

Aronyk opined that it had occurred “ a few hours to a day depending on what the brain was like before. If the child is dehydrated, it could be maybe up to two or three days, but, in my mind, this was hours to a day.” Primarily, Dr. Aronyk adhered to his opinion that the injury was within 24 hours old. That time frame started, he said, when the CT scan was taken; meaning he would place the injury as having occurred as early as October 12, 2015 in the early morning hours, but agreed that being more precise was difficult.

He repeatedly stated that three days or more was highly unlikely, but he could not be certain that the injury was not as much as three days old. However, he said, this was an acute phase of injury with no sign of compensation for it within the brain.

He indicated that this injury would cause symptoms immediately upon occurrence, which would include: headache, lethargy, vomiting, poor appetite, and then becoming increasingly somnolent or drowsy, going to sleep, and then they lapse into coma at that point, so it’s a very deep sleep, and it’s quite a disturbing sleep because the breathing [is] not normal. [ 71 ] Finally, Dr. Aronyk commented that time is crucial to treating such an injury; any delay, even 90 minutes, is “concerning.” Dr. Mah, ophthalmology [ 72 ] After S left surgery she was taken to the intensive care unit. Dr.

Dean Mah testified as an expert in ophthalmology. He examined S on October 14, 2015. He observed a large hemorrhage above the optic nerve in her right eye and five others on her retina. There were three similar injuries in her left eye. He noted that he had not been asked for a diagnosis, simply observation. He listed many possible causes of retinal hemorrhages including disease, infection and increased pressure in the brain. Dr. Weinberg, pathologist

[ 73 ] Dr. Mitchell Weinberg testified as an expert in forensic pathology. He performed a post mortem examination of S on October 19, 2015. His autopsy report was completed just over a year later. Like Dr. Aronyk, he noted the bruise to the upper right side of S’s face. He determined the cause of death to be blunt force trauma to her head. Blunt force trauma can occur, he said, when something strikes a person and causes injury to the body, or when a person’s body strikes a relatively stationary object, causing injury.

He described the following indicators of blunt force trauma to S: • Bruise in front of the right ear; • Bruise to right side of forehead; • A subgaleal hemorrhage, which is bruising under the scalp. This is one of the injuries that may have been caused by surgical intervention; • Abrasion to the side of her left eye; • Small laceration to her inner lip; • Large subgaleal hemorrhage to the back of the left side of her head, potentially caused by surgery; and • Two other subgaleal hemorrhages on the right side of the back of the head.

These were traumatic and not surgical in origin. [ 74 ] Like the other doctors who testified, Dr. Weinberg identified that there was a subdural hematoma in the left side of S’s brain. There were other hematomas present as well, some of which may have been caused by the surgery. Some were not, and were apparent on the exterior of the right side of the back of S’s head. Dr. Weinberg agreed that internally only acute and not chronic hemorrhaging was present. There was also a subarachnoid hemorrhage on the surface of the brain. Finally, he described an interventricular hemorrhage (bleeding from veins).

He said the most forensically relevant injury was the subdural hemorrhage and its related mass effects, particularly the swelling of the brain, which was followed by shifting and compression of the brain within the rigid structure of the skull. There was widespread death to brain tissue due to inadequate blood flow, damage that had occurred and was irreversible despite the surgical intervention. [ 75 ] Dr. Weinberg consulted Dr. Leslie Hamilton as a neuropathologist. Dr.

Hamilton was not called as a witness; however, both counsel and witnesses referred to her report, which was attached to the autopsy report as an exhibit. For example, Dr. Weinberg said in his evidence, The last two things to mention in terms of the

summary of Dr. Hamilton’s findings are that she simply makes reference to the fact that [S] had neurosurgical intervention prior to her death, and there are obviously findings in the neuropathologic report that relates to neurosurgical intervention. [ 76 ] These appear to be Dr. Hamilton’s findings and not his own. In fact, just before he read this from Dr. Hamilton’s report, Dr. Weinberg stated that a neuropathologist can comment on things he cannot, as he is not a neuropathologist. Despite being urged to accept Dr.

Hamilton’s report for the truth of its contents, it was not presented to the Court in that way (as agreed fact). Dr. Hamilton’s report is not evidence before this Court except where another qualified expert specifically adopts and or agrees with the contents of the report. This does not detract from the import or weight of the evidence of any of those experts, specifically Dr. Weinberg’s evidence. [ 77 ] Dr. Weinberg stated that none of S’s other injuries (below the head) caused or contributed to her death, and many were relatively superficial in nature.

He identified abrasions and bruises on many areas of her body. He stated that none of the superficial injuries he observed on her body were “overtly patterned” – meaning they did not have distinctive markings that give some indication of what might have caused the mark. He noted the bruising to her liver, which, in his opinion, indicated a “significant force that occurred to this young lady’s right upper abdomen.” He opined that it was a relatively recent injury, but likely a few days prior to S’s death, potentially caused by a blow or her falling onto something.

He described the lower piece of the right kidney as dead tissue, which was old and scarred, but could not be more specific about the age of the injury. [ 78 ] Dr. Weinberg ultimately opined that S’s death was a homicide. He also considered natural causes, accident, suicide and “undetermined” and ruled them out. As he considered these alternatives, he specifically noted that it is crucial in his role to keep his mind open to all possible conclusions.

He considered the falls described in the police investigation: the alleged playground fall on October 9, 2015, a recent fall down the stairs and a fall from bed the night of attending the hospital. He concluded that an October 9 (or earlier) occurrence was too old (“highly unlikely if not entirely inconsistent”) to have caused these injuries, and that the fall from a piece of playground equipment onto sand (he had the benefit of the police measurements and photos of the playground) would not explain the degree of head trauma that S had endured. [ 79 ] Dr.

Weinberg was also provided with the photographs and measurements from L.L.’s bed and bedroom. He considered those and the description of both falling from the bed and striking the open dresser drawer, and reviewed medical literature on the subject of short distance pediatric falls. Coupling that research with his experience and training he determined that the described fall from bed also did not account for S’s injury. However, he also stated that the fall from bed could not be absolutely ruled out as the cause, but remained unlikely. [ 80 ] A key (and repeated) point in Dr.

Weinberg’s testimony was this: In the absence of a reasonably plausible alternative scenario, and considering the autopsy and investigative findings in total, inflicted trauma is felt to be the most reasonable explanation for the head trauma present in this case . [ 81 ] He noted that the nature, distribution and broad range of other injuries to S informed his opinion that the blunt force trauma to her head was inflicted trauma. Dr. Weinberg said that he is cautious and precise arriving at his conclusions.

When pressed to quantify his opinions, he asserted that he was 100% certain that cause of death was blunt force trauma. As to his conclusion regarding the manner of

death (homicide), he was 95% certain: “if I had true reservations … that this could have been an accident, then at a minimum I would have called the manner of death undetermined.” Dr. Lacson, neuropathologist [ 82 ] Dr. Atilano Lacson, a neuropathologist, was qualified as an expert to offer opinion evidence in that field. He did not examine S, but reviewed her medical records including the autopsy report of Dr. Weinberg, the neuropathology report of Dr. Hamilton, the photographs from the autopsy and neuropathology autopsy and direct examination of the microscopic slides of the brain samples taken by Dr. Hamilton.

During examination, Dr. Lacson was asked to explain portions of Dr. Hamilton’s report. Only opinions and observations made by Dr. Lacson directly were fully before the Court, and his explanations of Dr. Hamilton’s report did not convert that report to evidence for the proof of its contents. [ 83 ] Dr. Lacson described a traumatic injury to S’s corpus callosum, the center of the brain where fibers connect to the two sides of the brain. The injury is caused when the corpus callosum moves within the skull, rubbing against the tough membrane that encircles the brain.

He said that direct trauma can cause such an injury to the brain, causing it to move back and forth, breaking veins which then hemorrhage blood. He could not quantify the force required to cause the injuries observed to S’s brain, stating simply that “it’s significant enough, in my view, to cause movement of the brain inside.” Based on the slides he observed, he said that the blood present was relatively fresh meaning hours to a few days old. He agreed that there was no evidence of “older” injuries in S’s brain. [ 84 ] Dr.

Lacson addressed an issue in much of the medical evidence before the Court: the timeline of medical evidence in this matter often generalized about old and new, hours, days or longer for the dating of S’s brain injury. However, at times it was difficult to sort through whether the dating refers to age of the injury at the time of presentation, treatment, examination, death or autopsy. Recognizing issue with the starting point, Dr. Lacson specifically found that S’s brain injury was a few hours and up to 24 hours old at the time she presented at the hospital.

His evidence on this point may have blended his own observations and Dr. Hamilton’s report about what she observed in slides. When pressed about Dr. Hamilton’s report, which stated that the injury was hours to a few days old, he offered the explanation that included the timeframe within the hospital until S’s death and also the time frame before S was admitted. He did not fully explain this. [ 85 ] Dr. Lacson explained that brain injuries can take time to develop, and in that time the child appears normal. But eventually the swelling presents as a headache and loss of appetite in the injured patient.

He also agreed with other evidence that S’s skull did not fracture, meaning the force that caused the brain injury was not sufficient to break the bones of the skull. [ 86 ] Dr. Lacson was asked to consider the playground fall that allegedly took place on or about October 9, 2015, coupled with the alleged fall from bed around midnight on October 13, 2015, 90 minutes before the call to 911 was made. Dr.

Lacson agreed that it was “possible,” but that a brain trauma from 4 days prior to admission would have shown signs of iron and fibrin deposited in the membrane and he specifically looked for these deposits in the stains taken by Dr. Hamilton and found no such deposits. When asked to quantify the likelihood that the brain injury occurred on October 9, he concluded that it was 80-90% unlikely. Dr. Lewis, child maltreatment expert [ 87 ] Dr. Melanie Lewis was qualified as an expert in child maltreatment, specifically physical abuse, head trauma and neglect.

She did not treat or examine S, but acted as a consultant with the task of trying to explain S’s presentation. She reviewed photos of S from the hospital photographer, police photos and measurements of the accused’s home and the nearby Inglewood playground, and all of the medical records that were part of the Crown’s file (which were not itemized in testimony, but presumed to include the records that became exhibits and the reports of the other medical witnesses who testified). [ 88 ] Although she reviewed the autopsy and other reports, Dr.

Lewis relied on clinical presentation and how that correlates with accidental injuries. She said that imaging can be a difficult way to pinpoint timing of an injury, suggesting that presentation of symptoms is more dependable. She did not contradict the other expert evidence, but offered an opinion based on the totality of the evidence before her which, she indicated, was comparatively broader than any of the other experts. [ 89 ] She agreed with the other medical opinions that S’s cause of death was blunt force trauma to the head. The injuries, Dr. Lewis opined, were not consistent with a short fall from bed.

She also discounted the scenarios of a fall down the stairs and from the monkey bars. She described that a head injury from a fall at the playground could result in a headache and nausea – similar to what Dr. Lewis saw noted in S’s medical file (presumably from the accused’s accounts given at the hospital).

In discounting these explanations, she said: When you have a severe head injury, you have significant symptoms immediately that make anyone, even those without any medical training, know there is a significant issue with this child that requires medical attention. [ 90 ] This expert, again, likened the severity of injuries to S’s brain to the type seen after a motor vehicle accident; specifically, a high-speed collision. Dr.

Lewis said that the injuries being inconsistent with the explanation given (the fall from bed) was why the care team had become concerned that the trauma was inflicted. [ 91 ] She described the subdural bleeding seen by the other treating physicians, noting that it was venous bleeding, causing pressure on the brain and specifically on the brain stem – which affected her heart and breathing in the emergency department. The swelling of the brain itself also caused pressure to the brain stem which was the ultimate cause of death. [ 92 ] Dr.

Lewis considered the other practitioner’s observations coupled with her own: • Dr. Kutnikoff’s observations of bruising and abrasions scattered across S’s body;

• Based on the bruising observed to S’s face and scalp, Dr.

Lewis said that meant there were multiple impacts to the front of herface, left back of her head and front right of her head; • The autopsy showed there was bleeding underneath the scalp, also showing there had been multiple blunt impacts to her head; • She observed that S’s bodily bruising was extensive, and not restricted to bony prominences which is typical of children, and theextent and type of bruising would cause her to expect an explanation if she were to see the child in general practice; • She referred to looped pattern bruising, which can be caused by strikes with a looped objected like a belt or a cord; • The retinal hemorrhages observed by Dr.

Mah rarely appear in accidental trauma, even motor vehicle accidents, where they occurin less than 3 percent of cases. Retinal hemorrhages occur in 50 to 90 percent of abusive head trauma cases, caused by shearing forces tothe back of the eye; • Dr. Aronyk’s description of finding a fresh blood clot, no chronic bleeding and determination that the injury was strictly acute; and • She agreed that a dark red blood clot as described indicates an acute nature of bleeding. [93] Dr.

Lewis described the medical literature as defining “acute” as less than two or three days. [94] In summarizing her opinion regarding what caused S’s death, Dr. Lewis testified that S died of acute traumatic brain injury,which likely occurred within hours of her presentation at the hospital; the symptoms of the injury would have been immediately evident.She relied on the autopsy finding that there had been blunt impact to the right frontal area and the left occipital area to the back of herhead.

She firmly concluded that a short fall (such as from the bed, as measured by the police, even if S struck her head on a drawer, orfrom a kitchen chair or falling down stairs) could not account for the degree of force to S’s head that was required to cause such aninjury.

When asked about the alleged monkey bar incident, estimating the height to be seven to nine feet (the police measured themonkey bars to be 6 feet to 6.6 feet high; the highest structure in the park was 8.5 feet high), she opined that it may have caused a minorconcussion, but “certainly not” the injuries that were found at the hospital. [95] Her ultimate opinion is that it was highly likely S suffered inflicted head trauma.

When asked about the possibility of anothercause, she returned, again, to the example of a high-speed motor vehicle collision. [96] She also testified that a person would be instantaneously symptomatic and in grave condition from her injury and there shouldhave been immediate recognition for urgent medical assistance. These symptoms could include an altered level of consciousness, notresponding appropriately, sometimes seizures, pauses in breathing and an evolution of these symptoms as the swelling within the brainprogresses.

In cross examination she confirmed these symptoms could begin with an altered level of consciousness, that is, notresponding to the environment in a normal way. [97] When asked about Dr. Aronyk’s evidence, Dr. Lewis stated that is restricted to his area of expertise, which does not considerthe presentation of brain injuries, which is her area of expertise. She offered a similar assessment of Dr. Lacson’s evidence. Shesummarized that the various medical opinions are all within the scope of the expert’s knowledge base and available techniques in theirfield; some cannot therefore be as specific as others. [98] Dr.

Lewis also considered all of S’s remote injuries that did not cause her death as well as her weight loss prior to her death tobe concerning for a longer history of neglect and inflicted trauma. Based on her medical records S’s weight had decreased between weighins in January 2015 and June 2015 - around the same time she had returned to living with her mother. The injuries to her kidney and liverwere notably not common as those organs are well protected by bones and overlying muscles.

She opined that the totality of the medicalevidence could reflect longstanding maltreatment and neglect, but did not conclusively state that.

Notably she, as well the other experts,was not asked if the alleged playground incident could have accounted for the liver damage. [99] Finally, she noted that delay in responding to the obvious need for assistance could have altered the treatment outcome for S.However, her evidence on that issue was limited to: Again, in any trauma situation in medicine, time is always of the essence, and the sooner that we can get to the individual, the better wehave of trying to change the outcome. In this [sic] circumstances, we’ll never know if she came earlier if it would have changed thecircumstances.

I -- certainly I think the care team would have liked the opportunity to try. [100] Ultimately her opinion was this: the history provided did not provide an accidental plausible cause that explained the severity ofthe forces applied against S, and S likely suffered an inflicted head injury, specifically some sort of acceleration-deceleration to the headwith impact against a flat surface. She said that a child would not likely be able to move a child this way, usually it would be an adultwho could cause this type of injury.

Applicable law Elements of the Offences Second degree murder [101] To prove the murder of S, the Crown must prove beyond a reasonable doubt that L.L. caused the death of S by means of anunlawful act and that L.L. intended to cause death or meant to cause S bodily harm she knew was likely to cause S’s death, and wasreckless about whether death ensued or not: s 229(

a) of the Criminal Code, RSC 1985, c C-46; R v Cooper, (SCC),

[1993] 1 SCR 146; R v Wheyee, 2019 ABQB 548 at para 81. [102] “Reckless” in this context means the accused person must first foresee the risk that is relevant to the offence with which he orshe is charged, and then decide to take such a risk; NOT that the accused ought to have seen the risk in question: R v Creighton, (SCC), [1993] 3 SCR 3. That is, the accused must subjectively have perceived the risk of her conduct by intending to causebodily harm and that it was likely to cause death.

Included offence: Manslaughter [103] To prove the accused’s culpability for the manslaughter of S, the Crown must prove that the accused unlawfully caused thedeath of S and that a reasonable person in the same circumstances would realize that the unlawful act would likely put another person atrisk of bodily harm.

This is a general intent offence, which does not require the Crown to prove that the accused had the intent to causedeath or bodily harm: R v Matchatis, 2020 ABCA 435 at para 18; R v Sylvester, 2020 ABQB 27 at para 223. [104] If the Crown fails to prove the requisite intent for murder, but proves the first two elements, it is manslaughter if the unlawfulact was objectively dangerous and a reasonable person would recognize it would put S at risk of bodily harm that was neither trivial ortransitory.

Assault with a weapon [105] The requirements of proving assault with a weapon are simple: the application of force (an assault) while carrying, using, orthreatening to use a weapon (or imitation of a weapon). [106] Defence counsel argued that to ground a conviction on this charge (or the included offence of assault) the Crown must prove aspecific instance where the accused applied force in a non-corrective fashion and that the specific weapon was used in a threatening orintimidating manner. [107] As she was a parent of S, L.L. could be entitled to the protection of s 43 of the Criminal Code provided that the force used wascorrective, and she did not use excessive force under the circumstances.

Section 43 exempts from criminal sanction only minor correctiveforce of a trifling and transitory nature. Discipline by the use of objects or blows or slaps to the head is considered to be unreasonable:Canadian Foundation for Children, Youth & the Law v Canada (Attorney General), 2004 SCC 4 at para 40.

Failing to provide the necessaries of life [108] The four elements of the offence of failing to provide the necessaries of life were established by Deschamps J in her dissentingopinion in R v JF, 2008 SCC 60 at paras 66-67 and cited by O’Ferrall JA in his dissenting opinion in R v Stephan, 2017 ABCA 380 atpara 221 [Stephan 1], reversed by 2018 SCC 21 with the Court agreeing with the reasons of O’Ferrall JA: The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty toprovide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed toperform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty wasowed, or caused or was likely to cause the health of that person to be endangered permanently.

Following Charron J.’s reasoning in R. v.Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5, the marked departure standard is not applied at this point, since “[n]othing is gained by addingto the words of [the statute] at this stage of the analysis” (para. 45).

The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented amarked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances. [109] The conduct of L.L. is to be assessed from the perspective of what a reasonably prudent parent without medical training oughtto have done when presented with the symptoms which S presented: Stephan 1 at para 213. [110] The Crown’s theory of this charge is the alleged 90-minute delay between S showing symptoms of a significant brain injury andthe accused’s eventual call to 911.

In other words, the Crown’s focus is on the accused’s alleged failure to obtain prompt medicalattention for S. [111] Prompt medical attention is considered a necessary of life: R v Stephan, 2021 ABCA 82 at para 62 [Stephan 2]. The offenceunder s 215(2)(a)(ii) of the Criminal Code is complete once it is objectively foreseeable that the child is in need of medical treatment,without which his or her life will be endangered, and the failure of the parent to provide or obtain that medical treatment represents amarked departure from the response expected of a reasonably prudent parent: Stephan 2 at paras 63 and 65.

The Crown is not required toprove that medical treatment would or could have saved S’ life. The Crown must only prove that the failure to seek medical treatment putS at risk of danger to her life: Stephan 2 at para 71. Other general principles of law [112] In any criminal trial there are two fundamental principles. First, the accused is presumed to be innocent and that presumptionremains throughout the trial. Second, the accused does not have to prove anything.

Only the Crown bears the onus of proving guilt, andeach of the elements of an offence must be proved beyond a reasonable doubt. [113] R v Lifchus, [1997] 3 SCR 320, at para 36 [Lifchus] defines reasonable doubt in this way: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption 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 guilty must acquit. [ 114 ] Proof beyond a reasonable doubt, however, is much closer to absolute certainty than to proof on a balance of probabilities: R v Starr , 2000 SCC 40 at para 242 . [ 115 ] When considering whether or not the Crown has proved any or all of the offences charged, I must consider the whole of the evidence and not just pieces of the evidence. [ 116 ] L.L. can only be convicted if, on all the evidence in the case, the trier of fact is left with no doubt as to whether they are guilty of the charged offence.

In R v Villaroman , 2016 SCC 33 [ Villaroman ], the Supreme Court of Canada considered the relationship between circumstantial evidence and proof beyond reasonable doubt. The Court (at para 26) described a: special concern inherent in the inferential reasoning from circumstantial evidence.

The concern is that the jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. [ 117 ] The Supreme Court warned that the jury must be instructed to guard against the risk of “too quickly overlooking reasonable alternative inferences”: Villaroman at para 30 .

So too must a judge sitting alone. [ 118 ] Justice Nixon summarized the principles of Villaroman in R v Bennett , 2021 ABQB 206 at para 27 [ Bennett ]: When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and “other reasonable possibilities” which are inconsistent with guilt.

However, the Crown need not negate “every possible conjecture, no matter how irrational or 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 on speculation: Villaroman at para 37 . [ 119 ] These “other plausible theories” must be based on logic and experience, not speculation.

Importantly, a reasonable doubt or alternative theory in relation to this circumstantial evidence is not rendered speculative by a lack of evidence.

As stated in Lifchus , at para 30 : “a reasonable doubt” is one based “on reason and common sense which must be logically based upon the evidence or lack of evidence.” [ 120 ] Justice Labrenz ably summarized at para 18 in R v Crier , 2020 ABQB 20 [ Crier ] that: A “succinct and accurate way” of conveying the proper approach to the drawing of an inference from circumstantial evidence is to instruct the trier of fact that an inference of guilt should be the only reasonable inference that such evidence permits: Villaroman at para 30 . [ 121 ] Later, at para 20, Labrenz J pointed out: the Alberta Court of Appeal has provided a helpful statement of how to draw the line between “plausible theory” and “speculation” in R v Dipnarine , 2014 ABCA 328 at paras 22 , 24-25: “[c]ircumstantial evidence does not have to exclude other conceivable inferences; that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. ” After-the-fact conduct evidence [ 122 ] Crown counsel also relies on the conduct of L.L. after S’s injury in meeting its burden of proof beyond a reasonable doubt that S is guilty of causing the serious injuries suffered by S. [ 123 ] The Supreme Court of Canada in R v Calnen , 2019 SCC 6 [ Calnen ], recently explained at para 106 that after-the-fact conduct encompasses: “what the accused both said and did after the offence charged in the indictment was allegedly committed.” Because of the large range of possible conduct that can follow the commission of an offence, “the proper legal treatment of after-the-fact conduct is highly context and fact specific”: Calnen at para 106 ; R v Downey , 2021 ABCA 142 at para 64 [ Downey ]. [ 124 ] After-the-fact conduct evidence is a form of circumstantial evidence.

It allows a fact finder to draw particular inferences based on a person’s words or actions: Calnen at para 111 . It can be used in determining the accused’s intent as well as to distinguish between different levels of culpability: Calnen at para 119 . [ 125 ] This Court takes note of and applies the caution from Crier in para 353 :

As with any evidence that is extrinsic to the criminal offence itself, the trier of fact must avoid moral and reasoning prejudice. As well,the fact finder must always consider other reasonable explanations for the post offence conduct, including a reminder that not everyonenecessarily behaves in a predictable manner. [126] The Crown provided several examples of L.L.’s conduct which they say constitute evidence of after the fact conduct indicativeof a guilty mind. [127] First, the Crown points to the delay of 90 mins to call 911.

The Court in Bennett recognized at para 399: … Several cases have specifically considered a delay in calling 911 as evidence which the trier of fact could infer that the accused hadcommitted a culpable act: see R v Martel, 2011 ABCA 225; R v Angelis, 2013 ONCA 70; and R v Barrett, 108 BCAC 231, (BCCA). [128] Next, the Crown further calls it “bizarre” that L.L. bathed and dressed S, and then called her father prior to calling emergencyservices.

The Crown also argues that by providing the hospital staff with varying versions of how S received her injuries, L.L. wasattempting to hide her own direct culpability. [129] The Crown notes that the accused told police she took S for treatment after she fell at the playground. At trial, the generalpractitioner who the accused saw and brought her children to other times that autumn, denied having any record of that occurring.

TheCrown argues that this was proof L.L. had lied. [130] When police attended to arrest the accused over a year after S’s death, she fled the home she had been in and was not locateduntil many hours later, found lying prone in a field. During her police interviews, when denying assaulting S in any way, she accused herother children of lying when they said otherwise, and in fact claimed that her son would abuse S. [131] Finally, the Crown argues each of the accused’s explanations for S’s brain injuries are inconsistent with the medical evidence.

Findings of fact Cause of death [132] Each of the medical experts in the trial were credible and reliable. Defense counsel suggested that Dr. Lewis in particular hadshifted from her role of witness into an advocate; however, there is nothing in the evidence to support that argument. Each expert witnesswas detailed in their answers, contained their opinion to their area of expertise, deferred to other medical experts when reasonable, andconsidered questions carefully and without any apparent bias.

In general, their evidence is accepted and relied upon. [133] Each of the medical experts in this trial cited the same cause of death: brain injury as a result of blunt force head trauma. That isthe cause of S’s death. All of the evidence and each of the opinions on that issue are the same.

Given the severity of the injuriesdescribed it is a matter of common sense that there is no other reason for this five-year old’s sudden death. [134] The experts also agreed broadly on this point: the degree of force required to cause this head injury is significant, and eachdescribed that they expect these types of injuries in situations of a motor vehicle collision (some specified a high-speed motor vehiclecollision) or where there is inflicted trauma. Dr.

Lewis attested that the retinal hemorrhages in particular do not typically appear in motorvehicle cases, but regularly in inflicted trauma cases. [135] Notably each expert also discounted the following accidents as being able to cause these injuries: falling from bed (whether ornot S struck a part of the dresser on the way down), falling from monkey bars, or falling down the stairs. Some were asked about beingpushed from a chair and also said that would not have caused these injuries. These incidents, they said, simply would not cause enoughforce to the brain to result in this degree of internal damage.

It is accepted that none of these incidents (whether they actually occurred ornot) caused S’s fatal brain injuries. [136] Further, there is no reason to disregard the overwhelming medical opinion that S suffered inflicted trauma. Specifically, theexperts all referred to inflicted trauma, and discounted accidental trauma. Specifically, Dr. Weinberg and Dr. Lewis were each taskedwith determining the actual cause of the trauma to S, and both concluded that barring a motor vehicle accident, the injuries S sufferedwere inflicted by another person. Dr.

Weinberg was clear that he turned his attention to other potential causes, including natural causes,accident, suicide and “undetermined” and ruled them all out. [137] Photos were taken of the accused’s home where S lived. There are no apparent hazards. It is speculative at best to considerwhether this young child could have been injured in a motor vehicle collision prior to paramedics being called to her side in the middle ofthe night. It is inferred from the evidence that L.L. did not own a vehicle.

Based upon the totality of the evidence, which includes theaccused’s statements to the 911 operator that suggest S’s physical distress started late that night, J’s evidence that they all went to bednormally and at that time all was well, as well as the relative safety of the home environment S was in when she was injured, this Courtreaches the same conclusion the medical experts did: the injury to S’s brain was caused by inflicted trauma. That is: significant forcesufficient to cause this terrible brain injury was imposed upon S’s by another person.

The force was so significant that it is, again, purelyspeculative to consider that it may have been accidental. [138] This finding mirrors the opinions of the experts, but is not a mere acceptance of those opinions. Their evidence regarding themechanism of injury, including the severity of force required to cause such an injury, was necessary for this Court to understand the braindamage S experienced and the degree of force required to cause that brain damage. That is clearly expert evidence outside of theexperience of the average person and necessary in assisting the trier of fact in this matter.

Their opinions about inflicted trauma werehelpful, but not conclusive. The evidence outside of that portion of Dr. Jaremko’s, Dr. Weinberg’s and Dr. Lewis’s opinions is the basisfor this Court drawing the same conclusion.

Time of injury [139] The timing of when these inflicted injuries occurred was a significant issue during evidence. This is an area where the expertsdiffered by degree. Some stated that the injury was possibly a few hours to up to 3 days old. Some narrowed the time frame further froma few hours to up 24 hours prior to presentation at the hospital. Dr. Lewis went further and opined that the injuries were inflicted 90minutes before presenting to the hospital: • Dr. Jaremko, the radiologist, said that it is difficult to precisely date intracranial bleeding and hematomas (based on imaging isinferred).

He said the injury could have occurred up to two days before the first scan; • Dr. Aronyk, the neurosurgeon, said that the injury could be a few hours to 1 day old; • Dr. Lacson, the neuropathologist, said that the injury had been caused up to 24 hours before S presented at the hospital (which wasjust after 2 a.m. October 13). He further said that a child can at first appear normal as brain injuries take time to develop; • Dr. Weinberg said that the injury causing blow occurred likely a few days before S’s death (she died on October 16, 2015); • Dr.

Lewis said that the injury was caused in the time frame adjacent to S’s presentation at the hospital, agreeing with Crowncounsel’s suggestion that it was likely around midnight on October 13, 2015. While she agreed that the symptoms of brain injurieschange as the injury evolves, in this case S would have been instantly symptomatic and obviously in need of medical assistanceimmediately after the injury occurred. [140] The force that was applied to S’s head to cause the terrible brain injuries occurred most likely in the 60-90 minutes before L.L.called 911.

This is consistent with what the accused said to the 911 operator and the rest of her statements, which was that just beforewaking J and taking steps to clean S, then calling her father for advice, S was showing obvious signs of injury and medical distress,starting with crying. By the time she called 911, S’s condition had progressed and she was unresponsive and unconscious. [141] I accept and rely upon Dr. Lewis’s evidence that the presentation of symptoms are key factors to her opinion on this point; it isnot inconsistent with the other expert’s evidence.

It is also consistent with J’s evidence, which has some weight and reliability given thetiming of her original statement, that all was well when the family had gone to bed and she was not aware of S’s injury until her motherwoke her. [142] There is a chance that the force was applied at an earlier time, but not much earlier. If the conclusion (above) is wrong, theforce was applied to S’s head within a maximum of 24 hours of her attendance at the hospital, based on the totality of the experts’evidence.

Who inflicted S’s injuries [143] Having accepted that the injuries were inflicted, it must be determined who inflicted them. The evidence is that L.L. was thesole parent and caregiver for these children. When the paramedics and police arrived at 1:39 a.m. only L.L. and her children werepresent. J said that nobody else lived with them, which is consistent with the evidence of the support workers, and they did not havebabysitters at her mother’s home.

The police photos of the home show evidence of only L.L. and her children’s things being present. [144] The expert evidence about the high degree of force that is required to cause S’s injuries leads to the logical conclusion thatneither 4-year-old T nor 10-year-old J could inflict those injuries. That conclusion is further supported by Dr. Lewis’s comment that onlya very large child, i.e. a teenager, could inflict such injuries, but usually an adult would.

Finally, both L.L.’s evidence that she woke J forhelp and J’s evidence that she did not know anything had happened until her mother woke her, also lead me to conclude that she wassleeping when S was injured. [145] The Crown has led no other positive evidence to show that no other adult has the opportunity to inflict injury on S.

Inconsidering the question of whether that means an exclusive opportunity to cause these injuries existed here, I adopt the followingpassage from R v Czibulka, 2011 ONCA 82 at paras 50-51: 50 The appellant submits that the trial judge should have instructed the jury they could not rely on a lack of evidence anyone else waspresent to find exclusive opportunity; instead they had to rely on positive evidence. I do not agree with this submission.

Absence ofevidence that anyone else was present at the relevant time may be used to establish exclusive opportunity. 51 McIntyre J., writing for the court, made this point in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.), at pp. 189-90. In that case, the accused, Mr. Yebes, was convicted of the second-degree murder of his two adopted sons. In upholding theconviction, McIntyre J. noted that there was no evidence connecting Yebes to the death of the boys. He therefore considered whether atthe relevant time Yebes had the exclusive opportunity to commit the murders.

He held there was evidence on which a properly instructjury could find exclusive opportunity. In so finding, the jury could take into account that “there is no evidence of the presence of anyother person, save the two boys, in the townhouse that evening.” [146] In this matter, based on all of the evidence of the cause of injury and the circumstantial evidence of that only S’s mother had theopportunity to inflict this head trauma, the only reasonable conclusion is that L.L. inflicted the trauma to S that led to her death. [147] The exact way in which L.L. applied force to S’s head is difficult to determine.

However, based on the expert evidence, it maybe that S was struck and then she hit an immovable object at a high rate of speed, or, her head was directly struck into an immovableobject at a high rate of speed. Given the number of bruises to her head there may have been more than one blow. This uncertainty doesnot affect this Court’s ability to determine that trauma was, in fact, inflicted upon S by L.L. [148] Justice Labrenz was left with a similar uncertainty of the exact form of assault against the deceased child in Crier, noting atpara 372:

While I agree that the exact mechanism involved in the blunt force trauma to Anthony’s head is unknown, e.g. a punch and/or a kick or a weapon, I am satisfied that the injuries to Anthony’s head were caused by blows to Anthony’s head, and not by Anthony’s head repeatedly hitting object(s). [ 149 ] The uncertainty as to method did not affect the finding that the injuries were caused by an assault.

Timing of the 911 call [ 150 ] Based on the findings of fact above, the expert’s opinions and L.L.’s own statements, there was a 60 - to 90-minute delay from S showing symptoms (likely immediately after being injured) before L.L. called her father and only then, on his advice, called 911. It is unclear if the delay contributed to S’s death. Dr. Aronyk and Dr. Lewis both confirmed that time is of the essence when treating injuries such as S’s and that swift treatment gives a medical team a better chance of changing the outcome. No expert said anything more definitive about the delay – Dr.

Lewis concluded that we “will never know if getting help sooner would have changed circumstances.” [ 151 ] It is also unknown how S’s symptoms presented to L.L. The medical evidence is that symptoms evolve with a brain injury, and some of the early symptoms are less apparently severe. While it is clear that by the time L.L. called 911 S was showing severe symptoms – she was unresponsive - that any reasonably prudent parent would seek medical attention for, it is not clear when S’s symptoms reached that point. Use of a spatula or belt as a weapon [ 152 ] The only evidence of assault with a weapon came from J.

During her lengthy recorded interviews J was asked repeatedly about the night of going to the hospital, but also the general bruises to S’s body. During her first interview on October 13, 2015, J described accidents and falls (including the fall at the playground) and play fighting with T. When asked about punishments she did not allege any hitting by her mother. Then she denied ever hitting S and said that only L.L. did. When the interviewer later said he knew that S was being hit by a belt, J agreed and said it was a white belt.

However, she then said she knew that evidence based on what her brother told her. [ 153 ] The next day she was directed to a photo of a spatula and the interviewer sa

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