R. v. Basi Date:, 2011 BCPC 12

Citation: R. v. Basi Date: 20110128 2011 BCPC 0012 File No: 147122 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA There is a ban on the publication under sections 486.5(1) and 486.5(2) of the Criminal Code with respect to the name of the victim of the alleged offence, E.B., and of the undercover officer, P.M. REGINA v. AVTAR RASHI BASI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.F. BROOKS Counsel for the Crown: Nils Jensen Counsel for the Defendant: John Green Place of Hearing: Victoria , B.C.

Dates of Hearing: September 7, 8, 9, 13, 14, 15, 17, 20, 21, 22, 23; December 9, 2010 Date of Judgment: January 28, 2011 INTRODUCTION [ 1 ] Avtar Rashi Basi is charged with committing the aggravated assault of E.B. on November 26, 2008. E.B.’s date of birth is [DOB] making her approximately 11 weeks old at of the date of the alleged offence. Mr. Basi, along with Micheline Slader, was one of the two adult caregivers for E.B. [ 2 ] It was not seriously contested that E.B. suffered injuries with catastrophic consequences.

It was established beyond a reasonable doubt that those injuries endangered her life and therefore fall within the definition of ‘aggravated’ in s.268(1) of the Criminal Code . [ 3 ] Nor was it contested that it was Mr. Basi who caused the injuries to E.B.

[ 4 ] What was contested was whether the circumstances in which the injuries were caused, a shaking, constitute the offence of assault as that has been defined. BACKGROUND [ 5 ] Assault is defined in s. 265(1) (

a) of the Criminal Code as the intentional application of force without consent. Therefore to prove assault the Crown must prove beyond a reasonable doubt that there was no consent as the law has defined that word. In the context of a caregiver and an infant the meaning of consent has been expanded upon. It is the meaning which the law has given to the word consent that shapes the questions to be resolved in this case. [ 6 ] For obvious reasons it is impossible to speak of actual consent in the context of an infant and his or her handling by an adult.

There is constant handling of infants by adults which could, and should, never be described as an assault. [ 7 ] To respond to the reality of the handling of infants, the law has developed the concept of ‘deemed consent.’ In other words, in specified circumstances, the law will deem that the handling of an infant is such that there is consent and therefore no assault. [ 8 ] The question to be addressed here is whether circumstances are such that there is deemed consent. [ 9 ] The components of deemed consent are set out in the case of R. v. Palombi [2007] O.J. 2611 , 2007 ONCA 486 . They are twofold.

First, the force used must, on an objective basis, have been for the purpose of caring for the child. (para. 31) If the force was not for the purpose of caring for the child then there is no deemed consent. [ 10 ] Second, for there to be a finding of deemed consent the force used must not have been excessive. Thus, even if the force used was for the purpose of caring for the child there can be no deemed consent if the force used was excessive. [ 11 ] The two components of deemed consent will form the analysis of the evidence in this case. ANALYSIS 1.

Was the force used for the purpose of caring for E.B.? [ 12 ] To understand the evidence as it relates to November 26, 2008, it is important to understand the series of events leading up to that day. a. Evidence of the Basi/Slader household prior to November 26, 2008 [ 13 ] Shortly after she was born, E.B. was removed from the care of her mother. In mid-October 2008, E.B. was moved to Ms. Slader and Mr. Basi’s home. [ 14 ] In the fall of 2008 Ms. Slader was the biological mother of three school age children who were all residing with her. In addition, Ms.

Slader was a caregiver for three other infants aged 5 months, 17 months and 37 months who had been placed with her by the Ministry of Children and Family Development. E.B. was the seventh child in the home. [ 15 ] Ms. Slader testified that she had known Mr. Basi since approximately November 2007. Their relationship developed to the point that Mr. Basi was spending seven nights a week at her home as of June 2008. By September 2008, he had moved his clothes into the home. [ 16 ] Ms. Slader described the handling of E.B. by Mr.

Basi in the following way: she said that she did not have to give him any instruction, that he handled the infants appropriately. She saw Mr. Basi carry E.B. cradled in his arms. When he picked up the infant he did so putting his hand ‘under the neck and under the bum.’ He fed and burped E.B. regularly. [ 17 ] Ms. Slader described E.B. as an ‘absolutely lovely child’ who did not cry a lot. She described E.B. as an ‘amazing baby.’ It was clear to Ms. Slader that her affection for E.B.was shared by Mr. Basi. The two of them discussed the possibility that they would adopt E.B. [ 18 ] Ms.

Slader’s observations of E.B. were shared by the resource social worker, Laura Collins, who oversaw the care of E.B. Ms. Collins observed that E.B. was almost abnormally quiet, something which she discussed with Ms. Slader. Ms. Collins spoke in very positive terms of the home environment describing a sense of calm and wellbeing there. As an experienced resource worker, Ms. Collins had no concerns regarding Mr. Basi. [ 19 ] Ms. Slader’s 15 year old son Chris echoed the description of E.B. as a quiet baby. [ 20 ] Ms. Slader’s 18 year old son Daniel testified that Mr.

Basi was calm and patient when dealing with the young children in the home. A subsequent examination of those children showed no evidence of abusive treatment. b. Evidence of Mr. Basi regarding November 26, 2008

[ 21 ] Ms. Slader and her boys were not home at the time that the injuries to E.B. were caused by Mr. Basi. Only the other three infants were in the home at the time. Accordingly, the direct evidence of what exactly happened to cause the injuries to E.B. comes from Mr. Basi. The circumstantial evidence with respect to what happened will also be considered separately. [ 22 ] With respect to Mr. Basi’s evidence there are two issues. First is the credibility of that evidence. Second, if accepted, how does that evidence impact the objective standard to be applied to the handling of E.B.? [ 23 ] To address those issues a

summary of Mr. Basi’s evidence is necessary. [ 24 ] I should preface this

summary by noting that I will not review every piece of Mr. Basi’s evidence. I have, however, read and reread that evidence and taken the entirety of it into account in the assessment which follows. [ 25 ] Mr. Basi testified that his date of birth is March 21, 1977 making him 31 years of age as of the date of the alleged offence. He was born in Victoria and has lived here all his life. He testified that he went as far as grade 11 in high school. He went to work in landscaping and had, for the last six years, worked at Greyhound in their parcel express department.

He had never learned emergency first aid. [ 26 ] He testified that he has a daughter from a previous relationship. She is now 8 years of age. Although this evidence was not clear, it would appear that his daughter was born when Mr. Basi was approximately 24 years old. He was present with his daughter from birth to age four months. He testified that his wife did most of the care of the child although he did some feedings of his daughter mostly during the day. He testified that he knew that the neck muscles of an infant were not strong and he knew how to handle a child. [ 27 ] Mr. Basi testified that he met Ms.

Slader in approximately November 2007 when he would have been 30 years old. He testified that he moved in with Ms. Slader in September 2008. [ 28 ] Mr. Basi testified that E.B. came to the home of himself and Ms. Slader in mid October 2008. As had Ms. Slader, he described E.B. in glowing terms: she was a ‘perfect’ baby. She was a very quiet baby, one who was very easy to care for. He described himself as very attached to E.B. He set out the reasons why he and Ms. Slader were considering adoption of E.B. and not the other foster children in the home. Ms. Slader’s love for E.B. was obvious to him. [ 29 ] Mr.

Basi testified that November 26, 2008 was a working day for him. His shift was 11:00 a.m. to 7:00 p.m. He testified that he would leave the house at approximately 10:40 in order to be at work on time. Those times are worthy of mention as it was suggested as a possibility that Mr. Basi was fearful of being late for work and that was, at least, part of the explanation of his actions that morning. Given that the key events happened shortly after 9:00 a.m., there is no air of reality to that suggestion. [ 30 ] Mr. Basi testified that he woke up at approximately 8:30 a.m. Ms.

Slader came in to the bedroom and said she was taking William and Daniel to school. She asked Mr. Basi to get the coffee on and she would be back shortly. He got up and put the coffee on. He saw a bottle by the microwave and wondered if that was the bottle for E.B. He called Ms. Slader’s cell phone to find out. The cell phone records establish that the time of that call was at 9:00:44 a.m. and lasted for 21 seconds. Daniel answered the phone and said that Ms. Slader was with William in the school. He would give her the message. [ 31 ] The timing of the phone calls is important for several reasons.

First and foremost they establish the parameters of when events happened. Second, they provide some insight into what was happening between Mr. Basi and E.B. at this crucial time. [ 32 ] Mr. Basi went to brush his teeth and then, when finished, to pick up E.B. Ms. Slader called at 9:02:27, a call which lasted for 2 minutes and 5 seconds. Both Ms. Slader and Mr. Basi testified that this conversation was about whose bottle was near the microwave and where the formula was for E.B. The call concluded at 9:04:32. It was completely unremarkable. The next call to occur 5 minutes and 8 seconds later at 9:09:40 was Mr.

Basi informing Ms. Slader that E.B. had stopped breathing. [ 33 ] Mr. Basi testified with respect to those 5 minutes and 8 seconds. He testified that E.B. started to cry and then cry abnormally. She cried louder than he had ever heard. She was ‘arching’ and turned her head into his chest. She then went limp. She looked to be totally unconscious. Later in his evidence, he referred to her being unconscious or ‘not alive’. E.B. was not breathing. Mr. Basi testified that he started crying. He wanted to get a reaction. That is when he shook E.B.

He shook her, as best he could remember, back and forth three separate times. He demonstrated how he did so from the witness box. He then called Ms. Slader. The call lasted 19 seconds. She told him to call 911 and he hung up the phone and did so. [ 34 ] The clear effect of Mr. Basi’s evidence was that he shook E.B. in an effort to resuscitate her in a life and death situation that arose in an instant. [ 35 ] The Crown challenged the credibility of Mr. Basi’s evidence on a number of bases.

I do not intend to refer to every point made by Crown counsel in his thorough submission. [ 36 ] I have considered the totality of the evidence of Mr. Basi including the Crown cross examination. I have also considered the Crown submissions on that cross examination. I intend to only refer to those portions of the cross examination and submissions which I find particularly important to an assessment of the credibility of Mr. Basi while bearing the totality of that evidence in mind. c. The credibility of Mr. Basi [ 37 ] First the Crown suggested that Mr.

Basi had, prior to testifying, lied repeatedly in denying having shaken E.B. During the Crown case evidence was led of an undercover police operation in which the incident with E.B. was discussed with Mr. Basi. Evidence was also

led of a statement that had been given by Mr. Basi to the police two days after the incident. Mr. Basi was also cross-examined on other lies that he had told about the incident. Mr. Basi acknowledged that he had lied with respect to the incident on each of those occasions. [ 38 ] Not surprisingly, the Crown submitted that a person who lied with such frequency and ease could not be trusted in their evidence in the witness stand. The Crown thoroughly went through every occasion after November 26, 2008 in which Mr. Basi had lied. As I have noted, Mr. Basi admitted that he had been lying as the Crown suggested.

The only time Mr. Basi took issue with the suggestion of lying was when he denied having intentionally caused injury to E.B: that, he said, was a truthful denial. Mr. Basi lied to the police repeatedly in denying that he had shaken E.B. when he was questioned on November 28, 2008. He added colour to his lies by describing as ‘disgusting’ anyone who would cause harm to a baby. He lied to the undercover officer who he had befriended and who he had come to trust. Perhaps more significantly, he did not tell the doctors treating E.B. what he had done even when that information may have assisted with her treatment.

Finally, he did not tell Ms. Slader the truth even allowing her to continue for months in the mistaken belief that drugs taken by the birth mother may have caused E.B.’s condition. [ 39 ] The continuous lying by Mr. Basi requires serious consideration in the assessment of his credibility in the witness stand. Crown Counsel asserts that the lying robs his evidence of any credibility. More to the point, the Crown submits that the lying is because Mr.

Basi was not engaged in resuscitation at all: he has been lying and continues to lie to hide what really happened in those five minutes. [ 40 ] It is important to analyze that chain of inference suggested by the Crown. It is suggested that Mr. Basi lied (which is not contested) and that the lies were to hide the fact that he shook E.B. (which is also not contested) not to resuscitate her but for some other reason unrelated to her care. The defence submits that the chain of inference ends before the reason for the shaking is reached. Mr. Basi’s evidence was that he lied because he couldn’t tell Ms.

Slader what he had done. In cross examination, he agreed that he couldn’t tell her because the truth was too ‘ghastly.’ In short, the defence says, he lied because he could not bring himself to admit that he had caused the injuries to E.B. and not because he was trying to hide his motivation for having caused the injuries. [ 41 ] The more likely inference can be seen from a review of the position Mr. Basi found himself in once E.B. was in hospital. Mr. Basi learned of the extent of the injuries to E.B. later the day of the 26 th from Ms. Slader. E.B. was now severely and permanently disabled. Mr.

Basi testified that he knew from that moment that he was responsible for those injuries. That realization must have struck him like lightning. Here was the child that they planned to adopt. This child was going to be part of the growth of his relationship with Ms. Slader. The importance of his relationship to Ms. Slader was very clear through the entirety of the evidence in this case. The two of them were going to raise E.B. in the best way they knew, to allow her to reach her full potential. But that dream was gone. His actions had ended that dream. [ 42 ] The question becomes whether I infer that Mr.

Basi lied to hide the responsibility for causing the injuries to E.B. or that he lied to hide his motivation. In my view, taking into account all the evidence that I have heard including that which I have just referred to, makes the more likely inference that Mr. Basi lied to hide that he had caused the injuries at all. [ 43 ] That is not to say that Mr. Basi’s pattern of lying is of no value in determining his credibility. It is only to say that the lying does not lead necessarily to the inference that Mr. Basi was hiding his motivation for shaking E.B. Mr.

Basi’s repeated lies are to be taken into account in the final determination of his credibility. [ 44 ] However, the Crown’s submission that Mr. Basi’s evidence lacked credibility was based on more than Mr. Basi’s previous lies. [ 45 ] The Crown submitted that Mr. Basi’s evidence was implausible. As one example, the Crown submitted that Mr. Basi would not hide that he had attempted to resuscitate E.B. Yet he did not, according to the Crown, tell anyone that he had been trying to resuscitate E.B. when he shook her.

To have attempted to resuscitate E.B. would only place him as a person who had done everything to help the infant when she was in distress. Why hide such a thing? [ 46 ] While there is some logic in the Crown submission it is too simplistic a logic. Mr. Basi did not, as I have found, dare to admit that he had caused the injuries to E.B. To admit to resuscitation was to admit to the shaking that he did in his resuscitation effort. To admit to shaking E.B. would take him to exactly where he could not go, the destruction of E.B.’s health. To Mr.

Basi the resuscitation was not an action to trumpet, it was part of his causing E.B.’s injuries. I do not find that his failure to speak of that resuscitation makes it less plausible that that is what happened. [ 47 ] The Crown also submitted that Mr. Basi’s evidence of E.B. going limp and stopping breathing was evidence of convenience not of reality. The Crown submitted that if E.B. stopped breathing it was only after Mr. Basi, for his own reasons, had shaken the infant. This submission leads into two areas of evidence: first, the likelihood of a sudden life threatening episode such as Mr.

Basi described having actually occurred and second: the statements made by Mr. Basi to the undercover police officer said to be inconsistent with Mr. Basi’s version. Those two areas will be considered in turn. [ 48 ] With regard to Mr. Basi’s evidence of E.B. stopping breathing, it was Crown Counsel’s submission, that such an event did not occur. His submission continued that the Court could be satisfied that Mr. Basi was inventing this portion of his evidence as the medical testimony did not support the possibility of such an event occurring in an 11 week old infant.

Accordingly it is necessary to review the medical testimony on this point. [ 49 ] Dr. Katherine Wambera was called by the Crown and qualified as an expert in pediatric neurology including the identification of inflicted neurological trauma, pediatric epilepsy and unconscious spells. In examination in chief she testified to a condition known as a breath holding spell. Typically, that condition involves forceful crying for 10 or 15 seconds, following which the child gets stuck at the end of exhalation and there is no breathing. Typically the child will ‘revert’ within 30 seconds.

Occasionally it will go to the point where the child will faint and pass out and then wake up spontaneously. Dr. Wambera described these spells as rare in children under six months of age, approximately 7.5 out of 1000 children. She testified in cross examination that there was a similar type of event in infants with a diagnosis of apparent life threatening episode (ALTE). [ 50 ] Dr. Jean Hlady was called by the Crown and qualified as an expert in pediatric medicine including child maltreatment and

inflicted neuro-trauma. She testified that breath holding was very rare in children less than six months. She has never seen a breath holding spell in a child of 11 weeks. She described such an incident as a child holding their breath and then they may lose consciousness for a short period of time. The infant may have some jerking movements and even go off colour briefly. She would estimate that the child would ‘usually recover within a couple of minutes.’ Dr. Hlady described a condition known as ALTE which has been recognized since 1986.

She agreed with the definition of that diagnosis as “a group of alarming symptoms that occur suddenly in young children and the episodes are defined as an episode that is frightening to the observer and is characterized by some combination of apnea [cessation of breathing for a period of 20 seconds or more], colour change, change in muscle tone, and/or choking or gagging.” These episodes almost always involve children less than 12 months of age. The infant, during an ALTE, may not be breathing at all, they may appear pale or blue and they may be limp or floppy. [ 51 ] Dr.

Kristi Zinkiew was also called by the Crown and testified with respect to both breath holding and ALTE. I will refer to her evidence in more detail on the issue of the degree of force used to cause the injuries suffered by E.B. [ 52 ] Dr. Charles Ferguson was called by the defence and qualified as an expert in forensic pediatrics, mechanisms of pediatric head injury and the diagnosis and treatment of suspected child abuse. He agreed with the descriptions provided of both a breath holding spell and ALTE. He testified that what was described by Mr.

Basi could have been a breath holding spell or an ALTE on the part of E.B. Where he differed with the other experts was the frequency of such events in infants of less than six months. His review of the literature was that breath holding spells occur at rates as high as 12%, a rate which he accepted. One study found 7% of children had onset of breath holding spells within the first two months of life. [ 53 ] It is not critical to resolve the difference in the frequency of breath holding spells and ALTE.

It is sufficient to note that each are recognized as possible traumatic events that may occur in an infant’s upbringing. The medical opinion was unanimous on this point. From the evidence that I have heard, it is not speculative to infer that such an incident may have occurred with E.B. Mr. Basi’s description of what occurred with E.B. is consistent with what was described by the medical expert witnesses. Far from undercutting the credibility of the evidence of Mr. Basi, the expert evidence of breath holding spells and ALTE tends to support Mr. Basi’s version of events. [ 54 ] Second, the Crown submitted that Mr.

Basi’s evidence of shaking E.B. in order to resuscitate her was something he did not say to the undercover police officer, P.M. If Mr. Basi did not say it to a person that he trusted then, the argument goes, it was because it never happened. At the very least, says the Crown, what was said to P.M. ought to undercut the credibility of Mr. Basi to such an extent that his evidence ought not to be accepted. [ 55 ] As the weight and

interpretation to be given to the evidence of P.M. is very much in issue, some reference must be made to the background of the undercover operation. [ 56 ] The undercover operation began by contacting Mr. Basi on March 24, 2009. The initial plan had been to attempt to develop trust between the two men by engaging in illegal behaviour with Mr. Basi. It quickly became apparent that Mr. Basi would not partake in criminal activity. Therefore an approach was taken to make Mr. Basi the president of a national auto business.

P.M. portrayed himself as an extremely wealthy individual who had the financial wherewithal to advance Mr. Basi’s career in that way. P.M. also employed Micheline Slader as an executive assistant. A variety of scenarios were used over a period of months to develop trust between Mr. Basi and P.M. The final scene of the piece was on June 12, 2009 when Ms. Slader was sent to Toronto for the launch of the auto business. The separation of Ms. Slader from Mr. Basi was intentional in order to ensure that Mr. Basi would not be able to turn to Ms. Slader when P.M. put pressure on Mr. Basi to ‘open up’.

On June 12, 2009 P.M. met with Mr. Basi in a hotel room and implored Mr. Basi to tell him the truth of what had happened with E.B. If Mr. Basi did not do so their business relationship was at an end. The Crown relied on what was said by Mr. Basi toward the end of the day on June 12 th . [ 57 ] At the end of the evening the following exchange occurred (at p. 132-133): P.M : But you know what, you lost it for five seconds. Basi: Yeah. P.M : This kid was pissing you off right? Basi: Yeah. P.M : Am I right? Basi: Yeah. P.M: She’s crying. . . Basi: Yes. P.M: . . .you’re overwhelmed, E.B. . . Basi: Yeah.

P.M: . . .E.B. . . Basi: Yeah. P.M: . . .and then you’ve gone, ah fuck, fuck. . .

Basi: Yeah. P.M : . . .and the panic sets in. Basi: Yeah. [ 58 ] The Crown submits that it is at this point that Mr. Basi tells the whole truth. More particularly, the Crown suggests Mr. Basi has admitted for the first time that he shook E.B. out of frustration and once he had done so it was then that panic set in. This passage, then, would constitute an admission by Mr. Basi that he did not apply force to care for E.B. The Crown points to other areas of the transcript where Mr. Basi does say more than ‘yeah’ and corrects P.M. From those corrections the Crown suggests that it is clear that Mr.

Basi was not, in this passage, just agreeing with everything that was said. [ 59 ] I cannot agree with the Crown submission. To do so is to emphasize one small portion of the lengthy exchange of these two men without regard to the totality of their interaction. The totality of their interaction must take into account more than that. P.M. stated in the morning of June 12 th that ‘if we don’t sort this thing out’ Micheline was ‘going to be fucked.’ (p. 205) This was a reference to the severing of all financial relations between the parties. In the afternoon of June 12 th when Mr.

Basi was demonstrating how he shook E.B., P.M. asked him if he was angry at all. Mr. Basi said, “no, no, no, no.” (p. 54) Mr. Basi went through what happened several times (p. 53, p. 66, p. 88, p. 104, p. 107) and each time he expressed a concern about what was wrong with E.B. as the genesis of the events. Mr. Basi denied that he was upset (p. 81) but after it was put to him repeatedly that he was upset (which is equated with being ‘freaked out’) he agrees (at p. 89) that he was upset. Later, when he had an opportunity to use his own words, Mr.

Basi described his state of mind as ‘strictly panic’ and ‘this was not anger, this was not frustration.’ (p. 106) Later still, P.M. suggests that people who have shaken a baby will say they did it in order to resuscitate the baby. To that Mr. Basi says, “But that’s me though.” (p. 123) Finally, he stated how he did not intentionally want to harm the baby and he felt as if he were ‘the biggest piece of shit’ for having done so. (p. 147) [ 60 ] To accept the Crown

interpretation of the words spoken would be to ignore all that passed between these two men. Most importantly it would require that the passages which I have referred to which are inconsistent with the

interpretation suggested also be ignored. It is illogical to ignore all that was said while placing complete reliance on one passage where all Mr. Basi said was ‘yeah.’ [ 61 ] Indeed when the transcript is viewed as a fluid, ongoing exchange between two men and not as involving two lawyers negotiating contractual terms, it can be seen that what Mr. Basi says is very similar to what he said on the witness stand. Any differences which exist are not sufficient to impair Mr. Basi’s credibility. [ 62 ] There is another area where the Crown says Mr. Basi’s evidence on the witness stand was shown to be untruthful.

While on the witness stand Mr. Basi was asked to demonstrate how he had shaken E.B. He did so by moving his hands back three times and forth three times for a total of six times. To my observation he moved his hands less than a foot each time. His movements on the stand were very similar to the motions he made to the undercover officer and shown in the video entered as Exhibits 10 and 18. [ 63 ] The medical evidence was that it was very unlikely (Dr. Hlady and Dr. Ferguson) or not possible at all (Dr. Zinkiew) that the shaking shown by Mr. Basi caused the injuries suffered by E.B. Thus the Crown says that Mr.

Basi minimized his own actions and was not candid in his descriptions. His lack of candour on the witness stand is destructive of his credibility, says the Crown. [ 64 ] I accept that Mr. Basi’s descriptions of his actions have to be assessed very closely to determine what impact, if any, there is on his credibility on this point and generally. [ 65 ] Mr. Basi conceded in his evidence that his actions in shaking E.B. caused her injuries. In doing so he was necessarily not contesting the descriptions of force that go along with those injuries.

He cannot be using his descriptions of the shaking motion to dispute something which he is admitting. He conceded as much when he said near the end of his cross examination that he did not know how hard he shook, he just wanted some sort of noise or cry from E.B. More important is the reality that he is describing events which occurred approximately two years ago. Even in the undercover operation the events of those seconds were approximately 7 months in the past. It should not be hastily inferred that descriptions have been constructed to deceive when they may be as a result of the passage of time.

Finally, and most significantly in the facts of this case, Mr. Basi had agreed in cross examination that what he had done was ‘ghastly.’ It is not deceptive to shrink from demonstrating that ‘ghastly’ act. His unenthusiastic re-creation of that act does not lead to the inference of deception. [ 66 ] While it is my conclusion that Mr. Basi did not set out to deceive the Court in his descriptions of the shaking motion, I do not mean to say that I place much weight on those descriptions as accurate representations of what he did on November 26, 2008.

I have already referred to the reasons why they are not accurate and reliable. That part of Mr. Basi’s evidence I reject. [ 67 ] Having dealt with the significant issues raised by the Crown it is important to assess the issue of Mr. Basi’s credibility generally. That assessment must include a review of other circumstantial evidence and an assessment of the demeanour of Mr. Basi in the witness stand. [ 68 ] The evidence of Mr. Basi is the only direct evidence of what occurred in the five minutes between cell phone calls. There is however considerable circumstantial evidence with respect to what occurred.

I intend to analyze that evidence for the inferences to be drawn as to the credibility of Mr. Basi and whether the actions of Mr. Basi were for the purpose of caring for E.B. [ 69 ] First are the cell phone calls themselves. The evidence of Daniel Slader was that his brief phone call with Mr. Basi at 9:00:44 was unremarkable: Mr. Basi was asking to speak to Ms. Slader. At 9:02:27 the two minute and five second call between Ms. Slader and Mr. Basi commenced. Ms. Slader testified that the conversation was about the milk for E.B. There was no evidence of anything untoward going on in their household.

The next phone call is Mr. Basi to Ms. Slader saying that E.B. was not breathing. [ 70 ] From that evidence there is no basis to infer that Mr. Basi was frustrated or impatient with what was occurring in the family home. Indeed the evidence leads to the inference that there was nothing unusual going on in the family home and what ever did occur

was sudden and extreme. That inference supports the credibility of Mr. Basi. [71] Although more remote in time, the evidence of Daniel Slader as to the general patience of Mr. Basi in dealing with the children inthe household is also contrary to the Crown theory of Mr. Basi having acted, not out of caring for E.B., but out of frustration or anger. [72] A second area of circumstantial evidence is the medical evidence given by professionals who, regrettably, have had to deal withmany cases of abuse of children. Their experience sheds light on the patterns seen in cases of abuse. [73] Dr.

Beck, an expert in pediatric intensive care including the identification of inflicted neuro trauma, testified. He examined E.B.,in part, to determine whether there was any other evidence of abusive treatment. His examination revealed that there was no indicationof any fractures from the skeletal scan. These findings were supported by Dr. Poskitt who examined all of the x-rays taken. Nor werethere any signs to Dr. Beck of bruising or scraping indicative of abusive treatment. His observations in that regard were the same asthose of Dr. Wambera.

He agreed with the suggestion that in well over half of the cases of abuse there are signs from examination thatthe child has been abused before. Dr. Wambera agreed with a similar suggestion. [74] Dr. Hlady testified that in 23 to 25% of children who suffer abusive trauma there are prior fractures from the skeletalexamination. She agreed that there may be bruising as well although she thought the suggestion of that occurring in 60% of cases was a‘little high.’ She also agreed that a significant percentage of the families associated with injured children have had prior contact withchild welfare services.

She did point out, however, the obvious: namely, that the absence of evidence of prior abuse does not mean that itdid not happen this time. [75] Dr. Ferguson testified on the same topic relying on his more than twenty years involvement with the Child Protection Centreassociated with the Children’s Hospital in Winnipeg. It is important to note that Dr. Ferguson works as part of a multi-disciplinary teamof 12 to 14 individuals involved in the investigative aspects of injury as opposed to treatment.

As he testified, ‘we work in attempting toassess causative factors in trauma to children.’ He testified that his team will look for open files with other agencies when presented witha case of inflicted trauma. In his experience there are such open files in the majority of the cases. His evidence was that the absence ofother injuries to E.B. was “very significant.” He testified that it was not common to be faced with a ‘complete blank.’ [76] Dr. Ferguson was also asked about the forceful holding of a child by an adult. He testified that the question of whether

an act ofviolence has been perpetrated on a child is one which he studies daily. Dr. Ferguson testified that it is ‘not likely’ that the child wouldhave no bruises or grip marks. The inference suggested was that if Mr. Basi had held E.B. and shaken her while in a highly agitatedstate, the probability is that he would have been holding her forcefully. [77] Obviously the absence of these indicators of abuse does not necessarily point to the use of resuscitative force as opposed toabusive force. It does not necessarily point to Mr. Basi telling the truth on the stand.

However, the evidence does tend, to some extent,to support the inference that the force applied was for the purpose of the care of E.B. It also, to some extent, tends to support theevidence given by Mr. Basi. [78] In

summary, the circumstantial evidence of the cell phone calls and the medical evidence support the inference that whathappened on November 26, 2008 between Mr. Basi and E.B. was not as a result of frustration on Mr. Basi’s part. The circumstantialevidence tends to support the evidence given by Mr. Basi that what happened was a sudden, unexpected event. [79] Little was said by either counsel with respect to Mr. Basi’s demeanour on the stand leaving consideration of that issue to theCourt. Little could have been said which would have made that assessment much easier.

Yet the assessment is critically important, notleast because the trier of fact is in the best position of anyone to make it. To repeat, the only direct evidence of what happened in thosecritical five minutes and eight seconds comes from Mr. Basi. Therefore his demeanour on the witness stand in understanding thosemoments is extremely important. [80] Demeanour of a witness can be a difficult measuring stick of credibility. Appearances can be deceptive. There may be atendency to over estimate one’s ability to detect deception in appearances.

There is great difficulty in estimating the impact of the stressof being in a witness box. These and many other factors must be taken into account when assessing demeanour. Fortunately there wasample opportunity to observe Mr. Basi’s demeanour. He was on the stand for more than one day. He was subjected to a thorough andprobing cross examination. [81] Mr. Basi came across as a nervous witness which was understandable in these circumstances. He was a person of few words. One got the sense he could handle heavy parcels with greater ease than lengthy explanations.

Indeed he gave the impression that hewould rather agree with a suggestion in cross examination if it would bring the end of questioning one second sooner. The result was adirectness in his answering questions. He did not equivocate or search for ways to embellish. Although he cried easily when speakingwith P.M. he did not attempt to use emotion to manipulate how his evidence came across. [82] There was no air of deception in his manner. He came across as not having, or wanting to have, the sophistication to tailor hisanswers. He conceded points quickly without fencing or quibbling.

In short, his demeanour was of a witness doing his best to tell thetruth. [83] At the same time I must take into account Mr. Basi’s lying about the incident prior to testifying to which I have already referred. I take it into account in the way the law directs me to. In R. v.

Kadeshevitz (ON CA), [1934] O.R. 213 (C.A.), it wassaid as follows: . . . the fact that a witness has, wittingly or unwittingly, voluntarily or under pressure, willfully or mistakenly, with good or with badintent, made a statement under oath or otherwise, differing from that made in the witness-box at the trial, does not prevent the jury fromconsidering his testimony and giving it the effect they consider right – they are not to be instructed that they must disregard histestimony and decide the case on the other evidence only. [84] Taking the direct and circumstantial evidence in its totality, I am satisfied of the following: Mr.

Basi’s lying about having

shaken E.B. does not cause me to reject his evidence given on the stand. Bearing in mind the evidence which supports his credibility as well as that which does not, I accept the evidence of Mr. Basi. I find that Mr. Basi’s handling of E.B. was for the purpose of resuscitating her as he perceived the events at the time. [ 85 ] However, the objective standard to be applied means that the finding on Mr. Basi’s credibility does not answer the entirety of the question of the first component on ‘deemed consent.’ d.

The objective standard applied to the handling of E.B. [ 86 ] It can be seen that there is some overlap between the first limitation and the second. The evidence regarding the degree of force to cause the injuries to E.B. I will defer to the second limit of ‘deemed consent’, namely, excessive force. At this stage, I will focus more on the reasonableness of the actions of Mr.

Basi in the force used. [ 87 ] The Crown points to expert evidence given on this point as well as to the common sense inference that ‘it is not a customary norm to devastate a child.’ I will refer to those two points in turn. [ 88 ] The evidence of Dr. Wambera touched on the handling which would have had to have occurred for these injuries to result.

She testified that, “It would have to be extremely inappropriate, forceful handling, not – no normal handling of an infant would produce these injuries.” In cross examination she testified that she, as a pediatric neurologist, would view any shaking of a child for any reason, no matter what the circumstances, as inappropriate. She further agreed that she would not be surprised by a panicked reaction in an inexperienced care giver who had never seen a breath holding spell occur.

She accepted that there is literature that suggests that 25 to 50% of adult Americans ‘today’ are not aware that shaking a child is dangerous. [ 89 ] Dr. Kenneth Poskitt testified as an expert in radiology including pediatric radiology and pediatric neuroradiology and the use of medical imaging to identify traumatic injuries. His evidence was a model of clarity and fairness. After being asked about the force used with regard to the injuries of E.B., he prefaced his comments by saying that assertions in this area are based on some amount of inference and speculation.

He then went on to say that the injuries here are beyond anything that we would do in the normal daily life of a child. “It is vigorous beyond normal daily activities.” (p. 43) He then went on to say that, “This is beyond what all of us would understand as normal, acceptable behaviour.” (p. 44) At the conclusion of his examination in chief, Dr. Poskitt phrased the same point this way: “Anybody, including a layperson, observing the event would recognize it as excessive. You would not have to be medically trained to identify it.

So someone who was normally competent would easily identify this as being excessive force, out of normal, daily experience.” (p. 48) In cross examination he testified that in using the word ‘excessive’ he meant greater than one would see employed in everyday activities. [ 90 ] Dr. Hlady was asked about the force used by a person to inflict the injuries suffered by E.B. She testified that this would not be normal child handling. It would not be force experienced by a child in normal daily activity.

She then went on to say, “I think a lay observer would likel y think that this was inappropriate or excessive force.” (emphasis added) [ 91 ] Dr. Ferguson testified that he agreed that the percentage of people who do not know that shaking is dangerous was 50%. He suggested that if the group were restricted to young males, the percentage would be higher.

In that regard he testified that he was interested in “fathers who don’t have a clue.” He testified to familiarity with shaking occurring as an ill advised attempt to bring a child back from what they feel is the brink of death. [ 92 ] During the submissions of counsel reference was made to the limitations on the evidence of experts. Without resolving the precise limitations, it is nevertheless important to bear in mind that it is the view of the trier of fact about what is reasonable that is central.

Of particular importance is that the case law dictates that there be a focus on what is reasonable in the circumstances. ( Palombi at para. 31 ) The circumstances, as they have already been found, are that Mr. Basi was facing an 11 week old infant who appeared to have stopped breathing and had gone limp. He testified that E.B. was unconscious or ‘not alive.’ While it is difficult to discuss what is reasonable in a situation that is so emotion filled, it is a discussion on which the law insists. [ 93 ] It is important to bear in mind the exact evidence given by the experts. Dr.

Wambera testified that the handling of E.B. was ‘inappropriate’. She approached the handling of E.B. from the perspective, understandably, of her expertise. It was no doubt having seen injury to children that she testified that any shaking was ‘inappropriate’. Dr. Poskitt stated the handling was excessive, that is to say, outside what one would see in every day activities. Dr. Hlady tempered her evidence with what was ‘likely’. It would not be the force of normal daily activity. Dr. Ferguson came closest to comment on the extraordinary circumstances as I have found them to have occurred.

His evidence tended to suggest that a shaking force was more common than supposed. [ 94 ] The exact evidence elicited from the Crown experts in this case did not address the extraordinary circumstances faced by Mr. Basi. Their evidence was tied to what was ’everyday’. Accordingly, that evidence is of limited assistance on the issue which I must decide. [ 95 ] The Crown also submits that the injuries are enough themselves to describe the actions of Mr. Basi as not reasonable. In effect, the Crown submits that one need only look at the results of Mr.

Basi’s actions and be able to determine that the actions themselves could not have been reasonable. I disagree. In my view it is necessary to look at the totality of the circumstances to decide on the reasonableness of the actions. Certainly one of the circumstances is the injuries which resulted. However, it is just one circumstance. The totality of the circumstances must include the reaction of a caregiver to a situation of life and death emergency. There is a terrifying reality to that situation which must be taken into account. [ 96 ] Those precise circumstances are central. Mr.

Basi was holding an 11 week old child who was behaving as she never had before. That behaviour progressed to the point that E.B. was unconscious. She appeared to be ‘not alive’. In those desperate circumstances Mr. Basi shook E.B. three times each with a back then forth motion. He then sought immediate assistance.

[ 97 ] In assessing what is reasonable Mr. Basi ought not to be held to a standard of perfection or to a standard of “absolute correctness”. So long as he acts reasonably, the law does not hold him criminally responsible for decisions that are merely wrong or ill advised. More particularly, that degree of shaking cannot be measured with a nicety. Such fine measurement is not required of a reasonable person in other areas of the law and ought not to be required in these circumstances. [ 98 ] Therefore I am not satisfied that the Crown has shown Mr.

Basi to have acted outside the scope of actions one might expect of a reasonable caregiver acting in very difficult circumstances. [ 99 ] Having concluded that the first component of ‘deemed consent’ has been satisfied, it is necessary to now address the second. 2. Was the force used on E.B. excessive? [ 100 ] Crown counsel submitted that, even accepting everything that Mr. Basi said about what happened in those five minutes and eight seconds, the force used was still excessive.

Both counsel made extensive reference to the transcripts of the expert evidence on the degree of force that was used to cause these injuries. The expert evidence accepted that this was an area of some controversy. Counsel in their submissions, however, disagreed as to the effect of that controversy. Crown counsel suggested, as I understood his submissions, the controversy was over a quantification of the force which had little significance to the issue of excessive force. Defence counsel submitted that the controversy was so profound that a reliable statement as to the degree of force used was next to impossible.

In those circumstances it could not be said, the defence submitted , that the force was excessive. In order to respond to those differing submissions it is necessary to review the expert evidence. (

a) Summary of the expert evidence on the degree of force to cause E.B. ’s injuries [ 101 ] The medical evidence reviewed the injuries suffered by E.B., the susceptibility of infants to injury and the degree of force required to cause those injuries. As a starting point, the injuries suffered by E.B. must be set out. It goes without saying that they are devastating and tragic. [ 102 ] Dr. Wambera provided the most comprehensive evidence of E.B.’s injuries. She testified that E.B. suffered both subdural and subarachnoid bleeding in her skull. There were at least four areas of bleeding.

There was also retinal haemorrhaging. The result was a very serious brain injury. The injury on the left side was the more severe. All functions on the left side were severely compromised. She will, for the rest of her life, be in the profoundly mentally handicapped range. Her disability is so profound that she may not be able to operate the power wheelchair she most certainly will need. Her vision is impacted so that she cannot see things that are in front of her and to the right. She will require 24 hour care the rest of her life for feeding, dressing, toileting and hygiene.

She is unable to chew solid foods and only barely able to tolerate pablum. It is likely that she will be fed by a tube in the future. She may never be continent. The decrease in her life expectancy from all the complications associated with her lack of mobility is measured in decades. [ 103 ] Dr. Poskitt summarized his findings by saying that there is one half of E.B.’s brain that is basically no longer functional. [ 104 ] Dr. Wambera testified to the particular susceptibility of an 11 week old child. As a child grows to 2 years of age a fatty insulation is created in the brain.

That insulation provides significant structural integrity such that the brain of an older child and an adult will be more resistant to stresses applied. [ 105 ] Dr. Wambera testified that children have much larger heads relative to body size than adults do. As well, the muscles supporting a child’s head and neck are underdeveloped. She described the situation as one where the physics predispose the child’s head to moving excessively. Her evidence on the susceptibility of a child was consistent with that given by Drs.

Hlady and Beck. [ 106 ] The susceptibility of an 11 week old infant to injury has obvious implications for the amount of force likely to cause injury. An amount of force that may appear appropriate to an adult or even an older child may have terrible consequences for an 11 week old infant. [ 107 ] In addition to testifying about the general issue of susceptibility to injury in children, Dr. Wambera and others spoke of the degree of force likely to cause the specific injuries suffered by E.B. What follows is a

summary of the more important evidence on this topic given by the experts. [ 108 ] Dr Wambera testified that the wide range of the injuries suffered by E.B. suggested that the force used was more severe. She agreed in cross examination that the minimum amount of force necessary to cause a subdural hematoma is not known. She agreed that there has been a change in the opinion of professionals that a very high degree of force is required for there to be a case of shaken baby syndrome. There is now a significant division on the issue of force.

She concluded with the statement, “I do not have the expertise to understand the biomechanics.” (p. 33) [ 109 ] Dr. Beck was asked directly about the force used to cause the injuries suffered by E.B. His answer was as follows: I would say it’s very hard to qualify because an adult person does not really need to apply very strong force.

I mean this is, on the other hand, not very gentle shaking, but an adult person, if he applies – he/she applied – they apply a moderate amount of force, for a small baby like this it’s a huge force and can cause severe injury. [ 110 ] In cross examination he agreed with the suggestion that to some extent it is a matter of conjecture and speculation as to how much force is necessary to cause a particular injury. He later agreed that it does not take very much force from an adult or a larger child to cause this injury to an infant.

He went on to recognize that there is controversy as to the amount of force to be used to cause these kinds of injuries. [ 111 ] Dr. Victor Pegado was qualified as an expert in pediatric ophthalmology. He testified with respect to the very large number of retinal hemorrhages seen in the eyes of E.B. He testified that the number of hemorrhages was important as an indication that a greater

force or injury had taken place. [ 112 ] Doctor Poskitt provided evidence on the correlation of force and injuries some of which I have already referred to. However, he was asked directly about the injuries and the degree of force in this case. He testified that it is not true to infer that this injury necessarily involved the use of more force than a lesser injury. He explained that at a threshold of force a cell may die. Any force over that threshold will not change anything as the cell is still dead. In that sense there is no correlation of injury to force. [ 113 ] Dr.

Hlady testified that there is a correlation between the extent of force with the injuries: the more force the more injuries. In cross examination, however, she agreed that there is no empirical data that more force equates to more injury. She also agreed that there is a significant difference of opinion on a number of issues surrounding shaken baby syndrome particularly relating to issues such as levels of force. [ 114 ] Finally, on the issue of the degree of force I must consider the evidence of Dr. Zinkiew.

For reasons that will become apparent, her evidence is treated separately from those of the other medical professionals. She was qualified as an expert in pediatrics including child maltreatment. Her level of qualifications was not on par with the other medical experts called to testify. As an example, her qualifications included attendances at conferences at which Dr. Hlady presented. [ 115 ] The other experts who testified in this case did so with sensitivity to the limitations on their own knowledge and expertise. They were clear as to where their opinions began and where they ended.

They expressed concern when the language of questions was imprecise. None of this care was exhibited by Dr. Zinkiew. She testified just before Dr. Poskitt. The contrast in their evidence could not have been starker. The contrast may not be reflected in transcripts of evidence. But to anyone in the court room who saw these two witnesses, the contrast was remarkable. [ 116 ] These are only two examples from Dr. Zinkiew’s evidence.

When she was asked about the degree of force used in this case she volunteered that it was ‘violent and not as a result of reviving type of shaking.’ No other expert ventured that they could differentiate between ‘reviving type of shaking’ and other shaking. She testified that she was aware that the defence was going to contend that the shaking of E.B. had been in order to revive her. She was asked if she believed that that could be the case and she said, without hesitation, no. [ 117 ] Dr. Zinkiew had earlier provided evidence as to the frequency of breath holding spells.

When she returned to the stand, she was asked to comment on an

article on that topic relied on by Dr. Ferguson and referred to earlier in these reasons. She testified that the

article must have used a definition different from the one that she was using. She had not indicated earlier that there may be any debate as to

definitions. She suggested that the study may have relied on dated information. The effect of her evidence was clear: the validity of the study suggesting a higher frequency of breath holding spells was questionable. In cross examination the effect of her evidence changed significantly. She was asked if she had done any research to determine the accuracy of the findings of the study. She said that she had. She was asked if she had found anything that suggested the data was inaccurate. She said no. [ 118 ] On the entirety of the evidence it is my regrettable conclusion that Dr.

Zinkiew did not provide reliable and objective evidence on which this Court can rely. I disregard the entirety of her evidence and, in particular, her evidence on the degree of force required to cause the injuries to E.B. (

b) Analysis of the evidence of the force used [ 119 ] It may be helpful to start with the uncontested evidence with respect to the force used to cause these injuries. There is no dispute as to two aspects of the expert evidence. First the injuries suffered by E.B. are at the highest end of the spectrum. They were so serious her life was put in jeopardy at the time and her life has been radically diminished forever.

Second it is clear that, for a number of physiological reasons, an 11 week old child has a particular susceptibility to injury from shaking. [ 120 ] The uncontested evidence does not assist greatly in assessing the crucial dispute regarding the extent of the force used in this particular case. The only thing that can be safely ventured is that there is controversy as to the degree of force which would cause the injuries suffered by E.B.

The unrealistic expectation that medicine would be able to provide all the answers in this case remains just that: unrealistic. [ 121 ] The issue for the Court remains whether the force used was excessive. [ 122 ] The defence asserts that the inconclusiveness of the expert evidence on the degree of force should lead to an inability to conclude that excessive force was used. I disagree. The lack of precision of the expert evidence makes the decision as to excessive force more difficult, not impossible. The medical controversy is an important one to note.

Nevertheless it is the responsibility of the Court to decide, on the basis of all the evidence presented, what is excessive force in the eyes of the law. [ 123 ] The Crown submitted, in part, that the inability of the experts to be specific as to the degree of force was only an inability to provide a quantification of force in pounds per square inch. The Crown emphasized that the extent of the injuries was very important to the determination of excessive force. The Crown also emphasized that Dr. Ferguson agreed that the force used here was in the upper range of the degree of force.

In the Crown’s view this concession made it unanimous amongst the experts that the force used here was in fact at the high end of the amount of force that could be applied. Implicit in the Crown submission was the rhetorical suggestion that if the injuries here which nearly killed E.B. did not result from excessive force then it would be difficult to imagine any case which could be described as excessive force. [ 124 ] I accept that the degree of the injuries is very important evidence to analyze. The injuries are circumstantial evidence as to the degree of force used.

The expert evidence saying that the injuries suggested that the force used was at the high end of the scale added to the inference that the force was excessive. Yet the expert evidence does not go so far as to say there is a direct and linear correlation of the degree of force and the degree of injury. The correlation is rough. It is of some assistance. It is important, however, not to elevate

one area of evidence beyond its proper significance. In this area too the totality of the circumstances must be taken into account. [ 125 ] It must be borne in mind that the expert evidence generally acknowledged that there is a lack of certainty as to how much force was used. The phrase ‘at the higher end of the scale’ begs the question: what is the scale? The susceptibility of infants means that a degree of force that appears moderate may have severe consequences. Referring to the higher end of a moderate scale is of limited assistance in determining what is excessive.

I disagree with the Crown submission that the area of uncertainty relates only to the peripheral issue of pounds per square inch. It is much more than that. Dr. Beck’s evidence was that of a very experienced intensivist. He recognized that the susceptibility of an infant is a key consideration. He noted that what may be moderate force to an older person is severe force when applied to an infant. Perhaps more important is the acceptance by the experts that there is in this discussion an element of conjecture.

I take from that a reminder of the importance of not assuming to know more than we do. [ 126 ] I do not mean to say that the controversy fairly acknowledged by the experts means that a finding of excessive force can never be made. The controversy means only that the expert’s evidence is but one part of the evidence to be considered. [ 127 ] The authorities that have been provided to me have also shown a reluctance to leap from the injuries to a finding of excessive force.

Although each case has important differences from this case, they each underline how, even in cases where death results, there may not have been excessive force. (R. v. J.R. [2005] N.S.J. No. 570 ; R. v. Sandy-Way [2002] O.J. No. 3055 ; R. v. Lee [2001] ACTSC 133; R. v. Millar

(1989) O.J. No. 829 . [ 128 ] I have concluded that although the severity of the injuries is an important factor it is only one factor. I have found that E.B. behaved suddenly and uncharacteristically. She had stopped breathing. The force applied by Mr. Basi was 3 motions of back and forth shaking. The exact mechanism of those motions is not known. The motions took place in the face of a life threatening situation. The purpose of that shaking motion was an attempt to relieve that life threatening situation. When the shaking did not resuscitate E.B., Mr. Basi immediately sought assistance.

On the totality of the evidence and the particular circumstances of this case, I am not persuaded beyond a reasonable doubt that the force used was excessive. CONCLUSION [ 129 ] On the totality of the evidence and applying the authoritative test for deemed consent as set out in the case law, I find that the Crown has failed to establish guilt beyond a reasonable doubt. [ 130 ] While Mr. Basi obviously bears a heavy moral responsibility for what he has done to the life of this child, E.B., it is not established that his is a criminal responsibility under our law and I find him not guilty. ______________________ A.

F. Brooks Provincial Court Judge