R v TS, 2023 ABKB 143

Court of King’s Bench of Alberta Citation: R v TS, 2023 ABKB 143 Date: 20230316 Docket: 190606798Q2 Registry: Calgary Between: His Majesty the King Crown - and - T.S. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim, HS (including the accused TS) must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on March 22, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________

Reasons for Decision of the Honourable Justice D.A. Labrenz _______________________________________________________ 1. Introduction [ 1 ] The Crown charged the Accused TS with the following offences: 1. That she, on or about the 20 th day of August, 2017, at or near Calgary, Alberta, did unlawfully wound, maim, disfigure or endanger the life of HS, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada . 2. That she, between the 6 th day of March, 2017, and the 26 th day of July, 2017, both dates inclusive, at or near Tsuu T’ina Nation, Alberta, did unlawfully wound, maim, disfigure or endanger the life of HS, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada . 3. That she, between the 6 th day of March 2018, and the 20 th day of August, 2017, both dates inclusive, at or near Tsuu T’ina Nation, Alberta, being the parent of HS, a child under the age of 16 years, did fail, without lawful excuse to provide the necessaries of life to HS, contrary to

section 215 of the Criminal Code of Canada . [ 2 ] On August 20, 2017, while in the care of her mother [“the Accused”], medical staff admitted HS into the Calgary South Health Campus Hospital with a displaced fracture to the proximal shaft of her right femur, along with a fracture to her pubis, which is the inferior portion of HS’s pelvis. The medical staff also observed partial thickness burns to both of HS’s hands extending from the dorsal aspects of her fingers, to circumferentially around each wrist joint.

The scar tissue resulting from the burns caused all of HS’s fingers to become significantly contracted resulting in a reduced range of motion and therefore functionality. [ 3 ] The Crown argues that it has proven beyond a reasonable doubt that it was the Accused who intentionally assaulted HS and thereby caused the injuries to HS’s leg and pelvis, along with the burns to both of HS’s hands.

The Crown’s argument suggests that I might draw inferences from the available circumstantial evidence to reach this conclusion; principally, the Crown points to what it argues is a series of deliberate falsehoods told by the Accused to explain how HS’s leg injury occurred, and additional lies to explain the injuries to HS’s hands.

The Crown argues that I may safely infer from these suggested uttered falsehoods that the Accused deliberately applied force to HS to cause all these injuries in circumstances where a reasonable person would have realized that the force applied by the Accused would put HS at risk for bodily harm.

The Crown also argues that the failure of the Accused to seek treatment for HS’s burned hands should result in my drawing the inference that the Accused caused the injuries to HS’s hands and that the injuries were intentional. [ 4 ] The Crown further argues that the Accused failed to provide HS with the necessaries of life by failing to obtain treatment for HS’s hands and that this conduct constituted a marked departure of the conduct expected of a reasonably prudent parent in the Accused’s circumstances.

This marked departure in the circumstances resulted in the Accused failing to protect HS from the risk to her permanent health. The Crown also argues that the Accused failed to provide the necessaries of protecting HS from her own assaults on HS.

Because of my findings on these issues, I will not address this last argument. [ 5 ] Defence counsel, on behalf of the Accused, conceded that the injuries suffered by HS fit within the definition of an aggravated assault; presumably on the basis that both the injuries to HS’s leg and the injuries to her hands served to “maim” HS in the sense that HS suffered a significant loss of the use or function of some part of her body: R v McPhee, 2018 ONCA 1016 . I would also note that the injuries to HS’s hands resulted are permanently disfiguring because of extensive scarring.

The injuries to HS’s hands can also be fairly described as wounds because of the penetrating injury to the dermis of HS’s hands, along with the associated risk of bacterial colonization. [ 6 ] Defence counsel, along with Crown counsel, argue that the primary issue in relation to the two counts of aggravated assault is one of causation, which I understand as meaning how the injuries occurred and whether they are inflicted or accidental. [ 7 ] Defence counsel also concedes that the Accused had a legal obligation to ensure that she provide HS with the necessaries of life. [ 8 ] Beyond these concessions, Defence counsel argues that the Crown has not proven that the statements made by the Accused are inconsistent with the way in which HS suffered her injuries, and further argues that neither the expert evidence, nor any of the other evidence as led by the Crown, proves any criminal wrongdoing. [ 9 ] In relation to Count 3 alleging that the Accused failed to provide HS with the necessary medical treatment to her hands, the Accused argues that the Crown has failed to prove beyond a reasonable doubt that the Accused failed to seek such treatment. 2.

Background Facts [ 10 ] The following is a

summary of some of the relevant evidence that I accept from the various witnesses as having been credibly

and reliably provided. I have considered all relevant evidence, regardless of whether specific reference is made herein, in totality, and not in a piecemealed fashion. The Crown also referred to a lengthy agreed statement of facts [“ASF”], which was marked as a trial exhibit. Rather than transposing the ASF into this decision, I will refer to the relevant portions as needed. [ 11 ] HS was 2 years of age at the time of these allegations. The birth of HS was unexpected as TS did not realize that she was pregnant. Upon birth, Alberta Children’s Services applied almost immediately to put HS into care.

Most of HS’s tender years have been spent in the care of foster parents by reason of a permanent guardianship order; although, at times, HS has been in the day-to-day care of the Accused.

HS was in the care of the Accused at the time that she received the burn injuries to her hands and at the time she received the fracture to her right leg and pubis. [ 12 ] At the time of HS’s birth, the caseworker who applied for the permanent guardianship order indicated that HS’s neonatologist said that HS likely suffered an extensive brain injury one to two days before delivery, and further that it was expected that HS would suffer from extensive medical difficulties including impairment of motor skills, learning, cognitive function, along with associated social delays.

The case worker also reported that the neonatologist said that HS would suffer cortical blindness and hearing loss. The medical records exhibited during the trial disclose that HS suffered a cytotoxic brain injury, which injury was confirmed by magnetic resonance imaging. [ 13 ] Joanna Busse took HS in as a foster child when HS was 19 days old. Ms. Busse understood that HS had suffered severe brain damage and had suffered a number of seizures at the time of her birth. Ms. Busse indicated that HS appeared differently than she anticipated based upon the reports she had received. Ms.

Busse described HS as a happy and healthy infant. [ 14 ] HS, however, required medication for her seizures and was in the active care of a team of medical providers. HS first attended the Okotoks Pediatrics Clinic at 4 weeks because the medical professionals considered HS to be an at-risk infant who has high needs. Dr. Klym, the Okotoks pediatrician, cared for HS for the first two years of her life. At 15-months, Dr. Klym noted HS to be a developmentally healthy toddler who is “running, speaking and exceeding milestones.” [ 15 ] HS, however, did suffer from some notable ongoing difficulties.

HS suffered from right-sided muscle weakness and her speech was not very clear. HS was receiving ongoing physiotherapy for this right-sided weakness, and was also receiving occupational therapy, along with regular neurological examinations because of the periodic seizures suffered by HS. Notably, however, Ms. Busse said that when HS was around one, HS was able to walk up and down a 14-step staircase located in Ms. Busse’s residence without too much difficulty.

HS’s fine motor skills were sufficient for HS to feed herself, pick up cheerios, orange slices, and to hold a pen. [ 16 ] HS commenced visits with the Accused in September of 2016. These unsupervised visits initially lasted around 2-3 hours. In December of 2016, during the Christmas period, Ms. Busse and the Accused arranged a 5-day stay for HS with the Accused. Two text messages sent from the Accused to Ms. Busse indicated that things were going “ok”, although the Accused said that HS continued to cry on and off, “out of nowhere.” [ 17 ] HS was placed in the full-time care of the Accused on January 6, 2017.

After the relocation, HS returned to Ms. Busse’s home for visits in an effort to ease this transition. These visits continued into February of 2017, Ms. Busse describing HS as happy to see everyone, although confused by the transitions. [ 18 ] On February 25, 2017, Ms. Busse received a text message from the Accused indicating that HS had hurt or broken her arm while at her grandfather’s home and that the arm had been casted. Ms.

Busse visited HS during the period that her arm was casted. [ 19 ] I note that I have not considered the injury to HS’s arm as having any relevance to the issues before me, either on the basis that it is demonstrative of any ongoing animus from the Accused towards HS, or on the basis that it might be suggested the arm injury has any relevance as similar fact evidence. The Crown does not argue otherwise by making the suggestion that the Accused or anyone else intentionally inflicted the injury, or that the injury occurred because of criminal wrongdoing.

I would also note that an investigation into HS’s elbow injury did not result in the police charging the Accused with any criminal offence. In any event, the Crown does not argue that the injury to HS’s elbow has relevance, either as similar fact evidence, or for any other reason. [ 20 ] The Accused advised Ms. Busse that HS suffered a seizure on February 27 th and said that she had contacted neurology. The Accused said that following the seizure HS had developed an issue with her gait. More specifically, the Accused said that HS’s knees were turning in when she walked. Ms.

Busse had not seen this on other occasions and advised the Accused to inform the physiotherapist at an upcoming appointment. Ms. Busse also contacted HS’s neurologist to provide the Accused’s contact information. [ 21 ] Ms. Busse, for respite purposes, visited with HS on March 2, 2017. Ms. Busse indicated that she was never of the opinion that HS could not feel pain, nor did the Accused ever tell Ms. Busse that HS could not feel pain. Instead, during the March 2 nd visit, Ms. Busse and the Accused discussed administering pain medication to HS to relieve her arm pain. Ms.

Busse was also of the view that HS was aware of the difference between hot and cold. HS stayed with Ms. Busse until March 6 th , and then Ms. Busse returned HS to the Accused at a Walmart. [ 22 ] Ms. Busse said that when she returned HS to the care of the Accused on March 6, 2017, HS suddenly transformed from a skipping girl to a girl who froze and whose lips started quivering when she saw the Accused. Despite the Crown’s reference to this incident in closing argument, I draw no conclusions from the change in HS’s behaviour. In my view, it would be dangerous to draw any conclusions from Ms.

Busse’s description of HS’s sudden behavioural change. I am not prepared to draw any inference that HS’s behavioural change affords any evidence that the Accused had previously mistreated HS. To do so, in my view, would risk resorting to tenuous inferences based upon generalized expectations of human behaviour, and I would only exacerbate this difficulty by applying those unproven and tenuous expectations to HS’s behavioral response. I would also note that HS’s biological father was in the company of the Accused when Ms. Busse observed HS’s sudden behavioural change.

I am of the view that it would be pure speculation for me to form any opinion as to what precipitated the sudden change in HS’s affect. [ 23 ] On March 7, 2017, Dr. Klym saw HS with a follow-up appointment. The Accused, Ms. Busse and HS’s biological father were

present. The following items were discussed: i. HS was attending daycare; ii. HS’s fractured her elbow at her grandfather’s house. The injury was unwitnessed, and the Accused had no explanation as to how it occurred; iii. HS had a seizure on February 27, 2017; iv. The Accused reported that HS had two episodes where her legs “turn[ed] in and her knees touch” but indicated that she had “no balance issues” and wondered if HS’s knees were swollen; v. HS sees Ms. Busse monthly for sleepovers; vi. HS calls the Accused and her biological father, “Mommy” and “Daddy”; and, vii.

The Accused reported that HS had leg pains on February 26, 2017. [ 24 ] Ms. Busse had not seen HS walking like she did in Dr. Klym’s office on previous occasions and did not notice any difficulty the previous day in Walmart. [ 25 ] Text messages exchanged between Ms. Busse and the Accused were relatively regular until March 7, 2017. The very brief contact after March 7 included two photographs of HS that did not depict her hands. Also, after March of 2017, the requests for respite from the Accused to Ms. Busse stopped. [ 26 ] Ms.

Busse did not see HS again until after the injuries to her hands and to her leg/pelvis. This occurred in November of 2017 when Ms. Busse provided respite to Melanie Sam who was briefly HS’s foster mother following the apprehension of HS in August of 2017 by Children’s Services after HS’s admission to hospital for her injuries. [ 27 ] A further appointment with Dr. Klym was booked for June 6, 2017. [ 28 ] On April 17, 2017, Dr. Klym wrote a letter to Dr. MacPherson at the Alberta Children’s Hospital [“ACH”].

In the letter, she raised concerns about HS’s unexplained elbow fracture, the management of her seizure condition, and missed appointments for Speech, Physical, and Occupational therapy. [ 29 ] On June 6, 2017, the Accused did not attend the appointment with Dr. Klym or plan for HS to attend. [ 30 ] Dr. Klym last saw HS on September 6, 2017 with her foster mother Ms. Sam. Since the last time Dr. Klym examined HS, she had been admitted to hospital with her injuries. Dr. Klym noted that HS had lost weight since March of 2017. Dr. Klym also noted that HS cried when her younger sister bit her on the forearm. A.

HS’s Hospital Admission on August 20, 2017 [ 31 ] The Accused carried HS into the Calgary South Campus a few minutes before 8:10 p.m. on August 20, 2017. The Accused advised that HS fell down six carpeted stairs. The emergency room nurse, Edward Calder, noted significant swelling to the lateral femur area of HS’s right leg. The leg was obviously deformed, and Mr. Calder believed the leg to be broken. [ 32 ] The Accused also said that HS had not lost consciousness and had cried or made a sound immediately following the fall. The fact that HS cried or made a sound was important to Mr.

Calder because it suggested that HS had not lost consciousness. Mr. Calder had no recollection and made no notes of HS crying during his examination. [ 33 ] A second nurse, Dawn Paterson, confirmed that the Accused indicated that HS fell down six stairs and that there was no indication of loss of consciousness. The Accused told Ms. Paterson that the fall occurred at 6:30 p.m. [ 34 ] Ms.

Paterson confirmed that HS was suffering pain and explained that when HS was transferred from her stretcher to X-ray, or when someone knocked against her bed, or when HS would voluntarily move, HS would start to cry. [ 35 ] Hospital caregivers administered ibuprofen and fentanyl nasally to HS for pain management. Later, HS was provided further medication for nausea, and morphine was also administered to control HS’s pain. [ 36 ] Ms. Paterson also observed an abrasion on HS’s right lateral thigh. [ 37 ] The Accused told Ms.

Paterson that the bilateral hand burns were from hot water and that those injuries were two months old. [ 38 ] HS was transferred to the ACH, just after midnight. B. The Accused Provides Further Explanations for HS’s Injuries [ 39 ] Dr. Simon Goldstein, a pediatric orthopedic surgeon, performed surgery on August 21, 2017 to immobilize HS’s femur by inserting titanium intra-medullary pins. The Accused, prior to the surgery advised that HS had fallen down 6 or 7 stairs. [ 40 ] On August 22, 2017, Detective Amy Spence of the Calgary Police Service interviewed the Accused at the Child Advocacy Centre.

This interview was audio and video recorded. The Accused gave her statement in a calm and relaxed manner and did not appear

to be under stress. For reasons that I will more fully explain below, I do not accept the Accused’s explanations as to how HS suffered her injuries to her hands and her right leg; instead, I find that the Accused was deliberately deceitful by lying about how HS became injured. The following is a

summary of the more important aspects of the statement that the Accused provided to Detective Spence: • The Accused had been watching a movie upstairs with HS, her younger daughter TS, and her 9-year-old niece, JS. At the conclusion of the movie, they decided to go downstairs, and the Accused instructed her daughters to crawl backwards down the carpeted stairs for safety reasons. The Accused explained that the stairs have about 7 steps before they turn and that she went down ahead of her daughters.

The Accused says that her daughter, TS, tried to turn around and walk down so the Accused grabbed her to turn her around again. The Accused then stated HS turned to look at her, followed by the accused making three gestures of her hands hitting together, attempting to demonstrate a tumbling motion. The Accused indicated that it all happened so fast. The Accused said that HS then was just lying there and was not reacting or crying. The Accused picked up HS and took her to a couch. At that point, the Accused noticed that HS’s leg just swelled up quickly.

The Accused said she could hear a crack as HS was falling down the stairs. The Accused said that she was “freaking out” and that she wrapped the leg in a brown tensor bandage. The Accused told Detective Spence that the swollen leg was “big.” • When describing the incident, a second time, the Accused said that HS was on the second stair when she started to fall and that she fell down six stairs. The Accused said that she did not see HS fall, but only heard the sound of HS falling.

The Accused also said that there was a bit of crying at the South Campus Hospital when moving HS, but that “it wasn’t like screaming crying that you would expect.” • The Accused said that she called her sister to accompany her for the trip to the South Campus Hospital in Calgary. The Accused claimed that the “guy” that she spoke to in the Hospital claimed that the leg could not be broken because HS was just sitting there and not crying. She said that this male indicated that HS would be pushing him away if the leg was broken.

The Accused said that following the X-ray she learned the leg was broken. • The Accused said that HS was not in pain while in the Hospital and explained that she had been alarmed since March that HS would not cry when she would get hurt. • The Accused indicated that she waited approximately 45 minutes for her sister to arrive and that they stopped to get food on the way to the Hospital. Despite waiting for her sister, they went to the Hospital in the Accused’s motor vehicle, with the Accused driving.

At the same time, the Accused reiterated “it was so scary” .... “‘cause her leg was swollen I didn’t know what was going on.” • The Accused recalled speaking to the orthopedic surgeon. She said that she was asked how many stairs HS fell down, and that the surgeon said, “oh that could – that could do it, like a break.” The Accused said that the doctor explained the surgical procedures.

She also indicated that the doctor said that the child abuse team would be involved because of HS’s “elbow injury and stuff.” • The Accused also explained the burns to HS’s hands that the Accused thought occurred in the beginning of April. The Accused said that she was in her mom’s house, along with her two daughters and JS. According to the Accused, she took HS to the bathroom and told her to wash her hands when she was done using the bathroom. The Accused said that she never leaves HS alone and regrets doing so on that day.

The Accused went to check on her laundry and when she came back she described HS standing on a stool and rubbing her hands together under steaming water. The Accused demonstrated what I might describe as a typical hand washing motion for Detective Spence as representing what she observed HS to be doing.

The Accused said that she could see that the skin of HS’s hand was “droopy”. • The Accused claimed that she was panicking while HS was looking at her, “like it’s normal, okay, keep washing my hands, sort of.” HS said that she turned off the water and wrapped HS’s hands in a facecloth. • The Accused then said that she took HS to a walk-in clinic at the Braeside Medical Clinic and that they put burn cream on HS’s hands. • Subsequently, the Accused claimed that Public Housing on the First Nation came and turned down the hot water temperatures after checking the hot water tank.

This could not be confirmed by the police investigation. • The Accused claimed that she kept returning to the Braeside Medical Clinic to get the burn dressings changed, and that eventually the family doctor at Tsuu T’ina took over treatment. The family doctor then referred HS to “plastics” at the Alberta Children’s Hospital. The Accused said that she cancelled the first appointment because a death happened in the family. [ 41 ] On August 23, 2017, the Accused spoke to Dr. Jennifer MacPherson who was qualified as an expert to give opinion evidence in relation to the cause and mechanism of injury to children.

Similar to the explanation provided to Detective Spence, the Accused advised Dr. MacPherson that she was worried her daughter TS was about to fall, and that when she reached out for her, HS who was at the top of the stairs turned around to look and fell down approximately six stairs. The Accused said that she did not see anything abnormal about HS’s leg positioning and that HS did not seem to be too upset.

The Accused said that she then noticed that the leg was getting swollen and that she took HS to the South Health Campus. [ 42 ] In relation to the injuries to HS’s hands, the Accused said that she thought the burns occurred in April of 2017. The Accused said that she had gone down to do some laundry and had asked HS to wash her hands and had put out a step stool for this purpose. The Accused said that when she returned, she found HS with her hands under the hot water and that HS appeared not to feel pain. The Accused also said that HS did not appear to be upset with her leg. C. Expert Evidence i. Dr.

Allan Innes [ 43 ] Doctor Innes’ evidence was admitted by virtue of an agreed statement of facts, along with his report dated September 15,

2017. Dr. Innes is a medical doctor with expertise in human genetics and the diagnosis of rare diseases. [ 44 ] In August of 2017, HS was referred to the Medical Genetics Clinic to determine if she suffered from Congenital Insensitivity to Pain [“CIP”]. CIP is a very rare genetic disease that is striking to observe in children who suffer from this condition. Children with a genetic insensitivity to pain do not experience pain and tend to act in a reckless manner. Unlike HS, children with CIP do not cry, wince, or show any signs of discomfort in response to physical stimulus.

Children with CIP do not respond to hot or cold temperature and do not perspire. Children with CIP are born with the disease and there is no treatment or cure. Genetic insensitivity does not come and go, nor does the condition worsen or improve over time. The only option for children with CIP is to manage the risk of injury with precautionary measures. [ 45 ] On September 14, 2017, HS and her foster mother attended the Medical Genetics Clinic at the ACH where HS was examined by Dr. Innes for approximately 90 minutes. During the examination Dr.

Innes took a history from HS’s foster mother, Melanie Sam, and learned the following: i. HS has responded appropriately to pain while in Ms. Sam’s care; ii. HS has responded appropriately to hot and cold temperature while in Ms. Sam’s care; and, iii. HS perspires normally. [ 46 ] Defence counsel, on behalf of the Accused, confirmed that Ms. Sam’s observations were factually admitted. [ 47 ] During his examination of HS, Dr. Innes observed the following: a.

HS bumped her head approximately three times on the examination table and each time she responded appropriately by saying, “ouch, I’ve hurt my head” or “I’ve bumped my head”; b. HS has normal symmetric reflexes and normal responses to light touch and sensation; c. HS moved all limbs appropriately; d. HS perspired normally; and, e. Overall, HS’s interactions and examination were very different from that of a child with genetic insensitivity to pain. [ 48 ] Based upon the history obtained from Ms. Sam, and his personal examination of HS, Dr.

Innes concluded that there was no evidence suggesting that HS suffers from a severe genetic disorder or congenital insensitivity to pain. Given that there was no evidence of CIP, Dr. Innes concluded there was no role for further genetic testing and a blood test was not ordered. Dr. Innes also said that some children with neurologic conditions, will often have a somewhat higher pain threshold that other children. In relation to HS, however, that was not his impression based upon his clinical observations. ii. Dr. Simon Goldstein [ 49 ] As I earlier mentioned, Dr.

Goldstein was the orthopedic surgeon who placed the titanium pins into HS’s leg to stabilize the right leg fracture of her femur. Dr. Goldstein was qualified to give expert evidence in pediatric orthopedic surgery and pediatric orthopedics. [ 50 ] Dr. Goldstein described HS’s fracture as being at the junction of the middle and the proximal or top third of the femur. The break was irregular in appearance in what could be described as a short oblique pattern. The fracture was displaced meaning that the ends were separated.

The bone was also shortened meaning that the muscles have pulled, and the leg has telescoped smaller, with the bone angulated at 30 to 40 degrees. [ 51 ] The surgical treatment required the placement of two intra-medullary rods to re-position the bone. The rods were subsequently removed post-healing as they were causing HS some discomfort at the incision/knee level. Dr. Goldstein stated that by 5 weeks post surgery, HS was able to walk again without discomfort, albeit with a slight limp. He did not anticipate any long-term sequela from her injuries. [ 52 ] Dr.

Goldstein indicated that he subsequently became aware of a fracture to HS’s pubis – the interior inferior part of the pelvis bone – during routine follow up post surgery. Upon reviewing the X-rays, he confirmed that the pubis fracture was present at the time of the femur fracture. Because there were no signs of healing, Dr. Goldstein believed the pubis fracture occurred at the time of or near the time of the injury to HS’s femur. [ 53 ] Dr. Goldstein indicated that HS presented initially in the Calgary South Campus emergency room on August 20, 2017 with a history that she had fallen down 6 or 7 steps. Dr.

Goldstein confirmed that because the femur is a weight-bearing bone, it is a stronger bone. As such, he opined that it would take “a fair amount of force” to fracture a child’s femur bone. Given HS’s age at the time of injury, Dr. Goldstein felt that it would require something “relatively high-speed or a fall from height.” Dr.

Goldstein explained that in twisting injuries, such as sports injuries, the most common type of injury to the bone would be torsional, whereas with an impact type of injury, it is more common to see a transverse or “bending” type of injury. [ 54 ] When discussing the amount of force required to fracture both the femur and the pubis, Dr.

Goldstein said that, assuming both fractures were cause by a single event, it would require a significant amount of force, such as “a fall from a height, a motor vehicle accident, or some sort of high-speed sports injury.” [ 55 ] A fall of four or five stairs, especially carpeted stairs, would not be expected to cause a break to the femur. Dr. Goldstein said

that this would be “highly unlikely.” The force required would have to be a fair amount more than this type of fall. [ 56 ] When asked whether the injury to the femur and pubis could be caused by a blunt force injury, Dr. Goldstein responded, “yes.” Dr. Goldstein clarified that it would be a force equivalent to falling uninterrupted, at a minimum, six feet and landing on an object that is at least one foot in size. Dr. Goldstein said that examples of the force that would be required could be found in a motor vehicle accident, or if the child was struck by a car as a pedestrian. [ 57 ] When cross examined, Dr.

Goldstein agreed that it would be possible to sustain this type of injury if the fall was from a top stair to a landing, that is, a fall from 6-8 feet. This hypothetical fall, however, must be “absolutely uninterrupted”, by things such as railings or other stairs. Such a fall must also be onto an object, straight on, because any sort of obliquity would lessen the force. [ 58 ] Dr.

Goldstein agreed that improperly functioning muscles and ligaments might operate to lessen the force required to fracture the femur; however, qualified his agreement by stating it was “not that much, actually.” When responding to medical records suggesting partial right-sided paralysis in relation to HS’s leg, Dr. Goldstein said that based upon his clinical examination of HS’s leg, her response to the injury would have been equal to the average child of her size and age. [ 59 ] Dr.

Goldstein also said that absent a very specific laceration in the skin or a defect in the muscle or skin itself, he could not properly pinpoint the impact to HS’s right leg. Instead, Dr. Goldstein offered that his best guess was that the point of impact was at the level of the break, near the top end of HS’s thigh. iii. Dr. Duncan Nickerson [ 60 ] Dr. Nickerson was qualified as an expert in plastic surgery, specializing in the cause, mechanism, and healing of burns and burn reconstruction. [ 61 ] Dr.

Nickerson advised that he was contacted by Detective Spence to provide a consultation in relation to HS’s burned hands. For the purpose of this consultation, Detective Spence provided the doctor with photographs of the injuries to HS’s hands and various records of HS’s treatment from the ACH. Despite the acknowledged inadequacy of the photographs for this purpose, I accept the following opinions as given by the doctor, supplemented, where necessary, by HS’s medical records and the evidence provided by Dr. MacPherson. [ 62 ] Dr.

Nickerson formed the initial impression that HS suffered a thermal injury at some point in the past and the injury had healed with an element of scar contracture. Dr. Nickerson described this as: ...a process that occurs when the injury is deep enough through the layers of skin, that there is insufficient potential for the skin to heal with the same pliability and laxity as it had pre-injury, resulting in tightening of the scar upon itself. [ 63 ] Although a “relatively junior trainee” had categorized the burns as “superficial partial thickness” burns, Dr.

Nickerson based upon the presentation of a functionally limiting scar contracture, opined that such a burn needs to penetrate into the deep dermis such that HS’s burns should be classified as a “deeper partial thickness” burn. Dr. Nickerson drew this inference because “it would be virtually unheard of for a superficial partial-thickness burn injury to result in a subsequent tightening of the skin and soft tissues once the injury has healed.” Dr. Nickerson further confirmed that the burns were not full thickness, or so-called third-degree burns. [ 64 ] Dr.

Nickerson stated in treating a deep partial-thickness burn, appropriate care would include basic wound hygiene, including keeping it clean to minimize the chance of bacterial colonization, and by maintaining a protective dressing overtop. There are no healing creams that have an intrinsic ability to heal. [ 65 ] Dr. Nickerson said that the contractures of the hand and fingers would begin to manifest approximately one-week post-injury in the absence of any physiotherapy to work on maintaining range of motion.

In the absence of such physiotherapy to work on range of motion and resting posture, the contractures would continue to progress to a certain extent, over the first one to two months. [ 66 ] When asked to opine if HS’s hands had been treated, Dr Nickerson stated: Q From your view of these hands, does it appear that any treatment as you’ve just described was provided to these hands, at the time of the burn? A If the treatment was provided, then it wasn’t complied with. Compliance with these measures can be difficult in young children.

Q Again, what I understand that treatment would be include [sic] referrals to physio and occupational therapy, as well as splints or gloves? A Yes. [ 67 ] Dr. Nickerson was also provided with a chart from a scientific study, as attached to Dr. MacPherson’s report, which details the time required to acquire a full thickness burn at various temperatures.

For example, at 49 degrees Celsius (when converted from Fahrenheit to Celsius), the chart indicates that it would take 10 minutes to achieve a full thickness burn. 5 seconds would achieve the same burn at 60 Celsius and it would take a temperature of 70 Celsius to achieve the same burn at a 1 second exposure. The chart further suggests that a typical hot tub temperature is 41 to 42 Celsius. The pain threshold for adults is suggested to be 43 to 48 Celsius. Dr. Nickerson thought that exposure under a normally regulated hot water tap would have to be quite prolonged. [ 68 ] The Crown asked Dr.

Nickerson to consider the following hypotheses: Q And, Doctor, in your opinion, if I put to you a hypothesis that it is a child who is washing their hands under a tap – and I’m sure if you can see – and rubbing their hands like this, could this type of burn or prolonged exposure be consistent with what we see?

A No, it would not. Q And, Doctor, would you expect if the individual has a regular pain sensation, that they would remove their hands from the pain stimulus? A Absolutely, and the accompanying chart or legend that comes with that temperature graph speaks to the pain threshold for hot water, I believe, at some point. So, I would expect, provided that there was an intact ability – unless there is some physical reason why the individual would not withdraw their hands from the heat source, that they would withdraw it prior to receiving a burn of this depth.

Q And in terms of the burns from what you’ve observed and the fact that the burns both appear to end in almost similar areas at the wrist joint, does that seem to be, or consistent in your opinion, with the child washing their hands under hot water and rubbing them together? A No. Q In your opinion Doctor, would these burns be consistent with an immersion burn, perhaps in a pot of water? A Consistent with an immersion burn, yes. Q And why do you say that?

A Principally, because of the line of demarcation at the wrist level, bilaterally, suggesting a water level. [ 69 ] Defence counsel suggested a different hypothesis as follows: Q And in order to determine how an injury happened, it’s possible to infer, based on where the injuries are, how that injury took place, within certain limitations. Do you agree with that premise? A Yes. The distribution of the cutaneous injury can suggest the mechanism. Q Okay. So one of the examples that the Crown put to you – and she had positioned the hands wringing underneath – or a child trying to wash their hands with water.

And you were of the view that was not consistent with what you saw. Do I have that right? A I would expect a more irregular distribution to the cutaneous burns, with that mechanism. Q Okay. However, I’m going to suggest a hypothetical to you. If water is running out of a tap, and a child sticks their hands under the water, with the backs of their hands up, into the stream, with the hands point – the fingertips pointed downward toward the drain, that’s possible and is consistent with how these injuries appeared to you. Would you agree with that? A I would not. Q Okay.

Specifically, I’m going to suggest to you that the demarcation with respect to the wrists is consistent with water running over and around the wrist. Would you agree with that? A I would not. Q Okay. I appreciate that may not be your explanation. Is it possible? A In my view, it is not. May I explain why? Q Please A So in my experience, the width of the stream coming out of a faucet would be less than or equal to, give or take, an inch. Held together, it seems to me that the span of a young child’s dorsal hands and wrists span as much as 4 or 5 inches.

And so, I struggle to imagine how a stream of water could cause such a burn of uniform depth across the dorsum of both hands and wrists before the individual’s pain response kicked in and they withdrew it. In other words, I think – to me, I think that, you know, a 1-inch stream of hot water hot enough to burn, hot enough to hurt is going to cause prompt withdrawal of the hands from that painful stimulus rather than moving them back and forth to be able to expose that stream to the entire dorsum of both hands. [ 70 ] Dr.

Nickerson went on to agree that with hot enough water that uniform exposure could result in an injury in less than one second. Dr. Nickerson clarified this aspect of his opinion as follows: Q But if the water was sufficiently hot, the stream – if I’m understanding correctly – the stream of water would have to be both the same length and width of the hands to show that consistent scarring: is that correct? A So, yes.

A very, very broad stream of water sufficient in width to cover the entire dorsum of both hands when held together would explain burns of that depth and scars of that uniform nature, potentially as little as a second if it was hot enough. It doesn’t account for the burns on the palm side of the hand, though. But yeah, it could. If it was big enough – big enough and hot enough it could cause that burn quickly. iv. Dr. Jennifer MacPherson [ 71 ] Dr. MacPherson was qualified to give opinion evidence on the cause and mechanism of injuries to children.

This doctor works as a child abuse pediatrician at the Child Advocacy Centre and as a consulting physician for the child abuse services group at the ACH. Dr. MacPherson defined her role as assessing the plausibility of the mechanisms of injury to children. She was clear that that she could

not determine causation with 100% certainty as the events happened elsewhere and were merely reported. [ 72 ] The testimony of Dr. MacPherson was supplemented by three reports she authored in relation to HS’s injuries. [ 73 ] Dr. MacPherson assessed HS upon her admittance to the ACH on August 21, 2017 and described her role not in terms of treatment or diagnosis; rather, her role was one of assessing the mechanism of injury and providing an opinion about whether HS’s injuries could be inflicted. [ 74 ] In her October 24, 2017 report Dr.

MacPherson notes that when HS was seen on July 26, 2017 at the Tsuu T’ina Nation Health Centre, her hands were well healed with contractures. Dr. Erasmus independently testified during this trial as to this examination in July of 2017. [ 75 ] Dr. MacPherson’s report opines that the burns HS suffered were likely inflicted by holding HS’s hands under water or immersed with her fingers closed. The burns are described as appearing uniform on both hands and Dr. MacPherson suggests that this is very concerning for inflicted injury. Dr.

MacPherson describes the description provided by the Accused of HS standing at the sink with her hands under running water, in no distress, as being completely implausible. [ 76 ] When Dr. MacPherson asked the Accused on August 22, 2017 if the daycare providers had expressed concern about HS’s fingers, the Accused said that HS had not really attended daycare since the contractures, which she said was in the past few weeks. [ 77 ] Dr. MacPherson elaborated on the injuries to HS’s hands while testifying. She described the burns as healing with no evidence of open, weeping, type of tissue.

Both hands were affected, with a clear demarcation at both wrists. The demarcation line on the right wrist was just above the wrist and on the left wrist just below. There was scar tissue on both hands, with some sparing of the palms. The palmar surface of the hand did display some peeling but not the shiny, reddish-pink tissue that would be an indication of the scar tissue that can be seen on the outer surface of the hands. Dr. MacPherson confirmed that the line of demarcation went all the way around the wrists because she made a note that the injury was circumferential. Dr.

MacPherson had no memory if the coloration was the same on both sides of the wrist. [ 78 ] Dr. MacPherson searched for any medical records that might suggest HS received treatment for her hands, and advised as follows: Q All right. And you also indicate that you received those medical records that your requested in points 1, 2, and 3 of your recommendations. In regards to those records, did you observe any records from Braeside, South Side (sic), or from Tsuu T’ina about the burns to the hands? A So I’ll take them one at a time.

So, Braeside had no documentation of HS having attended there for any treatment of burns. There were two documented visits. One was related to the elbow, and the other was related to vomiting and diarrhea. There was no mention of any burns. There was a visit to Dr. Erasmus on July 26, I think, at the Tsuu T’ina Health Centre, and I believe she is the one who raised concerns about burns on the hands. So, we had that documentation, and she made a referral to plastic surgery for assessment.

They were already healing at that point. [ 79 ] Importantly, with respect to the Accused’s assertion that HS’s burns were historically treated at the Braeside Medical Clinic, Dr. MacPherson said that burns of the degree suffered by HS would not typically be treated in a family practice type of setting because it would normally be dealt with by the burn team at the ACH. [ 80 ] Dr.

MacPherson said that the long-term prognosis with respect to HS’s hands was concerning because there is a worry that she would not have good function because of the contractures and the limitations associated with those contractures. [ 81 ] Dr. MacPherson’s report in relation to HS’s femoral fracture was followed by a second report when it was discovered that HS had suffered the fracture to her pelvic bone. Dr. MacPherson opined that the presence of a second fracture is less likely to have been caused by the short fall reported by the Accused. Dr.

MacPherson said that because the femur fracture was oblique that it was more indicative of direct trauma to the bone. Dr. MacPherson felt that it was most likely that both fractures occurred at the same time; however, made it clear that she could not say so with 100% certainty. [ 82 ] Dr. MacPherson said that the hematoma that HS suffered was most likely formed when the sharp edge of the fractured femur went into the muscle. There was no bruising or redness noted on HS’s initial assessment; however, there was a small abrasion on her right thigh. [ 83 ] Dr.

MacPherson also noted that the Accused’s description of the fall did not describe any unusual positioning of the leg, which might be expected for there to be an oblique fracture. Dr. MacPherson noted that HS did not have any evidence of an underlying bone disorder that would increase bone fragility, and that there was no reason to believe that less force would be required than is generally required. The force that would be required to break the femur would be significant. The fracture would cause immediate and severe pain. [ 84 ] Dr.

MacPherson said that given the severe nature of the fracture compared to the mild trauma that the Accused described, the possibility exists that this is an inflicted fracture rather than accidental. Possible mechanisms would include a direct blow or being thrown against the ground or another object. [ 85 ] Dr. MacPherson elaborated on her report when testifying. When speaking about the femoral fracture, Dr.

MacPherson noted that most accidental fractures are torsional in nature and an oblique fracture requires “quite significant force.” An oblique fracture to a child might be seen in those instances where a caregiver falls on a child, causing an increased force load, or a direct blow from a moving object. She concluded that it would be unusual to see an oblique fracture from a fall down the stairs absent any element of additional force. She went on to state, “So all that led to the concern that this could be – that the history that I was hearing was not the actual explanation for the fall – for that fracture.”

[86] When discussing what was meant by a “high energy impact”, Dr. MacPherson stated that a car accident, being struck by afast-moving object, falling from a significant height, or being subject to some form of additional weight, might be considered to be highimpact. In Dr. MacPherson’s opinion, a fall down 4 or 5 stairs would normally be considered a low energy fall. She further noted thatcarpet acts to diffuse impact. [87] Specifically in relation to the pelvic fracture, Dr.

MacPherson said that such a fracture is rarely seen in children in any context,abusive or non-abusive injuries. [88] With respect to HS’s ability to feel pain, Dr. MacPherson indicated that she had an interaction with HS that made it clear toDr. MacPherson that HS could feel pain: Q Thank you. Now, there’s been – we were starting to talk about history you obtained for each of the injuries. We’ve kind of gonethrough a bit of it. There’s some indication where you’ve stated that [the Accused] told you that she didn’t seem to react or feel pain withrespect to her leg.

Did you make any personal observations of HS with respect to that? A Yes. Interestingly, when I was examining her, she was saying “owie” about something, and we realized, when we looked moreclosely, a hairbrush had slipped down behind her. It was like a little wiry type of brush, and the bristles were digging into her back, andshe was saying “ow.” So at least on that occasion, I was able to observe her experiencing pain. [89] I will refer to additional evidence as is necessary for the purpose of explaining my reasons for decision as may be required. 3.

Principles [90] The first and most important principle of law applicable to every criminal case is the presumption of innocence. Two rulesfollow from the presumption of innocence. First is that the Crown bears the burden of proving the Accused’s guilt and that burden nevershifts. Second, the Crown must establish the essential elements of the offence beyond a reasonable doubt. [91] Proof beyond a reasonable doubt requires that the Crown proves more than likely or probable guilt.

A reasonable doubt isbased upon reason and common sense, it is logically connected to the evidence, or the absence of evidence, and must not be based onsympathy or prejudice for any party. Having said this, proof beyond a reasonable doubt does not require proof to an absolute certainty asthe standard does not require proof beyond any doubt, such as an imaginary or frivolous doubt: R v Lifchus, (SCC),[1997] 3 SCR 320 at para 36.

Proof beyond a reasonable doubt, however, is much closer to absolute certainty than to proof on a balanceof probabilities: R v Starr, 2002 SCC 40 at para 242. [92] When deciding whether the Crown has proven its case beyond a reasonable doubt, I must consider the whole of the evidenceand not piecemealed portions: R v Morin, [1988] 3 SCR 345. [93] The rule of reasonable doubt applies to the essential elements of the offence, or to vital issues. i. The Accused’s Statements [94] The Crown introduced into evidence several statements made by the Accused.

As I consider these statements, it is useful toremind myself that the rule of reasonable doubt applies to the credibility of witnesses: R v W(D), (SCC), [1991] 1 SCR742 at p 757. More specifically, I must resolve any conflict in the evidence by ensuring that any reasonable doubt should enure to thebenefit of the Accused: R v Ryon, 2019 ABCA 36 at para 21. This means that I may not decide guilt or innocence by asking if I preferthe inculpatory evidence over the exculpatory evidence, or the evidence of one witness, or a group of witnesses, over that of others.

AsMartin JA said in Ryon, at para 40... “[a] trial is not a credibility contest requiring [the fact finder] to choose one version over the other.”The Supreme Court in W(D), at p 758, suggested that a jury should be instructed as follows: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the evidence of the accused but you are left in reasonable doubt by it you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [95] Martin JA in Ryon, at para 26, cautioned that the W(

D) formulation cannot be applied mechanically, must be applied incontext, and with such modifications as are appropriate. Subsequently, Martin JA revisited these issues and suggested some modificationto the second prong of his revised W(

D) instruction in R v Achuil, 2019 ABCA 299 at para 18. Martin JA reformulated the W(D)consideration as follows: i. The burden of proof is on the Crown to establish the accused’s guilt beyond any reasonable doubt, and thatburden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led bythe Crown; ii.

In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence tothat effect) is believed, or even if it is not believed, it leaves the jury with a reasonable doubt that it may be true, then the jury is requiredto acquit; iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt of the accused, a trial is nota credibility contest that requires the jury to decide if one of the conflicting versions is true. If, after careful consideration of all of theevidence, the jury is unable to decide whom to believe, they must acquit; and

iv. Even if the jury completely rejects the accused’s evidence, the jury must not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence that they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be substituted for proof of the accused’s guilt. [ 96 ] Finally, as Ryon cautions, I must not consider the accused’s exculpatory evidence in isolation from the entirety of the evidence. ii.

Circumstantial Evidence [ 97 ] The case against the Accused is entirely circumstantial. [ 98 ] When a trial judge charges a jury at the conclusion of the evidence and closing addresses by counsel, the trial judge necessarily instructs the jury that they may consider both direct and circumstantial evidence.

Concurrent to this instruction, the trial judge also tells the jury that direct and circumstantial evidence are both treated equally in the sense that neither type of evidence is necessarily better nor worse than the other. [ 99 ] What the trial judge must add to an instruction involving the proper consideration of circumstantial evidence, is some instruction which cautions the jury as against the temptation to unconsciously fill in the blanks, bridge gaps, or jump to conclusions when considering the suggested or potential inferences that might be drawn from the available circumstantial evidence.

Instead, before the trier of fact draws any inferences, the trier must examine the suggested inferences considering all the evidence, and the absence of evidence, to decide which inferences may be logically drawn considering human experience and common sense: R v Villaroman, 2016 SCC 22 at paras 29-31 . [ 100 ] A “succinct and accurate” way to convey the proper approach to the trier of fact when drawing inferences of guilt from circumstantial evidence, is to instruct that such an inference should not be drawn unless it is the only reasonable inference that the evidence permits: Villaroman , at para 30 . [ 101 ] While the trier of fact should consider other “plausible theories” and “reasonable possibilities” that are inconsistent with guilt, the Crown need only negative reasonable possibilities and the Crown is not required to negative “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.” To be properly considered by the trier of fact, other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence, or the absence of the evidence, and not on speculation:” Villaroman , at para 30 . [ 102 ] As Cromwell J stated at para 42 of Villaroman, the Alberta Court of Appeal provided useful guidance of where to draw the line between “plausible theory” and “speculation” in R v Dipnarine, 2014 ABCA 328 at paras 22 , 24-25: “circumstantial evidence does not have to totally exclude other conceivable inferences if they do not raise a reasonable doubt in the mind of the trier of fact; the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and, alternative inferences must be reasonable, not just possible.” [ 103 ] Cromwell J, at para 23 of Villaroman, used s.10.2 of the Model Jury Instructions (online) prepared by the National Committee on Jury Instructions of the Canadian Judicial Counsel, which illustrates the distinction between direct evidence (the witness saw it raining outside) and circumstantial evidence (someone entered the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet), to illustrate the dangers posed by the temptation for the trier of fact to fill in evidentiary gaps.

At para 30, Justice Cromwell suggested that it might be helpful to illustrate the concern about jumping to conclusions as follows: If we look out the window and see the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” [ 104 ] Somewhat relatedly, an accused person is not required to suggest or provide explanations for the inferences suggesting guilt, as such a requirement would improperly place some onus on the accused to prove facts.

Reasonable doubt is assessed on the totality of the evidence, including the gaps in the evidence (absence of evidence), which may support a reasonable inference other than guilt when logic, common sense and human experience is applied: R v Admasu, 2021 ABQB 386 at para 13 ; citing, R v Bjornson, 2018 ABCA 282 at paras 22-33 and R v King, 2020 ABCA 425 at para 30 . [ 105 ] Therefore, it is not simply a matter of the trier of fact searching for any conceivable inference, especially where the drawing of such an inference would be contrary to logic, common sense and human experience.

Chief Justice Fraser (as she then was) explained this point in R v Cabrera, 2019 ABCA 184 at para 168 : To bring this home to reality, the mere fact that the accused testifies at trial and offers an explanation consistent with innocence for otherwise inculpatory evidence does not necessarily mean that there is another reasonable inference on the record consistent with innocence. Approaching the test this way would tend to put almost everything beyond the reach of the jury.

It would essentially negate any role for the trier of fact in assessing credibility as well as negating any standard of review on fact findings and credibility. Thus, it is not for an appellate court to devise its own list of reasonable inferences and substitute them for the reasonable inferences implicitly found by the trier of fact: see R v Fedyck, 2018 MBCA 74 . And for good reason. To allow such substitution would be, in effect, to allow an appellate court to re-try the case, something this Court was found to have done in Villaroman itself.

Bearing all this in mind, the question for this Court is not whether, on appeal, it can conceive of reasonable inferences other than guilt. Instead, it is whether it was reasonable for this jury to conclude that there were not. [ 106 ] Further, as Yamauchi J wrote in R v Leeming, 2022 ABQB 56 at para 253 , citing R v To, 1992 BCCA 16 at para 41, “this Court

must bear in mind that juries and trial judges are “not expected to treat real life cases as a completely intellectual exercise where noconclusion can be reached if there is the slightest competing possibility.” As the Supreme Court of Canada recently confirmed in R vVernelus, 2022 SCC 53 at para 5, “the only reasonable inference criterion obviously does not mean that guilt ha[s] to be the onlypossible or conceivable inference.” iii.

After-the-Fact-Conduct [107] The circumstantial evidence relied upon by the Crown in the present circumstances, is based largely upon the inferences theCrown suggests may be properly drawn from the Accused’s after-the-fact conduct. In particular, the Crown argues that the Accused toldmany lies that were deliberate falsehoods meant to distance her from her assaultive involvement in relation to the injuries to HS’s handsand the fractures to HS’s right femur, along with her pelvis.

Somewhat relatedly, the Crown argues that the Accused did not seek timelymedical treatment for HS’s burn injuries because to do so would have meant exposing her responsibility for having caused the deliberateinjury to HS’s hands. [108] It is undoubtedly true that, at times, evidence is admitted of an accused’s post offence conduct in an attempt to demonstrate thatthe accused has acted, based upon human experience and logic, in a manner that is inconsistent with innocence. As Weiler JA stated in Rv Peavoy, (1997), (ON CA), 34 OR (3d) 620 at p 629 (Ont.

C.A.): The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully andwithout a valid defence for the conduct in question.

It can only be used by the trier of fact in this manner if any innocent explanation forthe conduct is rejected. [109] The Accused’s after-the-fact conduct, considered in this way, is admissible on a threshold basis because it has, “some tendencyas a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be inthe absence of that evidence”: R v Calnen, 2019 SCC 6 at para 108.

The Accused’s after-the-fact conduct may be considered by me asmaterial evidence relevant to the issue of whether the injuries to HS were intentionally inflicted and, if so, by whom. Considered forthese purposes, the admission of the Accused’s after-the-fact conduct does not otherwise offend any other exclusionary rule of evidence,and its probative value upon admission greatly exceeds its prejudicial effect.

I note that the Accused did not argue against admission ofher after-the fact conduct based on either relevance or by means of otherwise challenging the admissibility of this evidence because of itsprejudicial effect or for some other reason. [110] I have expressly cautioned myself throughout my consideration of the evidence to avoid resorting to the various types of moraland reasoning prejudice disclosed by the evidence.

As one such example, I have avoided inferring from the number of separate physicalinjuries to HS, in the absence of a similar fact application, that the Accused had a propensity or disposition to injure HS [reasoningprejudice]. Similarly, I have avoided drawing any inference against the Accused based upon the repugnancy of the allegations and thefallacious reasoning that would derive from any consideration of what the Supreme Court of Canada describes as the bad personhood ofthe Accused [moral prejudice].

I have also avoided any reasoning, which might suggest that I could use a finding that the Accusedintentionally assaulted HS on one occasion to render it improbable that a subsequent injury was accidental.

For example, if I find beyonda reasonable doubt that the Accused intentionally assaulted HS and thereby caused the fractures to her leg and pelvis, I have not reasonedfrom that finding that it is more probable the Accused intentionally caused the burn injuries to HS’s hands. [111] I have considered the available evidence in relation to each count separately and have not utilized similar fact reasoning todetermine if HS’s injuries were the product of an assault or accidental as the Accused claims.

I have also not resorted to similar actconsiderations when determining the identity of the person responsible for HS’s injuries as may be argued where there is a high degreeof similarity between the acts such as to render the likelihood of coincidence improbable: R v Arp, (SCC), [1998] 3SCR 339 at para 43. [112] Assessing after-the-fact conduct evidence necessarily involves the use of retrospective reasoning.

That is, the accused’ssubsequent actions, state of mind, or state of affairs, are used to infer the occurrence of “a prior act, state of mind or state of affairs”: R vSB1, 2018 ONCA 807 at para 66. [113] I have also cautioned myself that after-the-fact conduct may potentially be ambiguous and susceptible to error in the sense that Imust consider alternative explanations for the Accused’s behaviour.

For example, the conduct might be “motivated by panic,embarrassment, fear of a false allegation, or some other innocent explanation”: Calnen, at para 117. [114] While suggested inferences must be reasonable as based on human experience, a range of potential inferences does not renderafter-the-fact conduct inadmissible.

It is for the trier of fact to choose among the reasonable inferences available from after-the-factconduct: Calnen, at para 112. [115] To properly draw an inference from the after-the-fact conduct, where the drawing of such an inference is rational andreasonable, it is not a prerequisite to the drawing of an inference that other direct evidence corroborates or supports the inference as aprecondition. It is enough that the inference be available as a matter of common sense, logic, and human experience.

The inferencesdrawn from the after-the-fact conduct may “be strengthened or weakened by the presence or absence of other evidence, but it is not asecondary form of evidence.”: Calnen, at para 133. [116] There is also an important distinction between statements made by the accused that are disbelieved and thereby rejected, fromthose statements made by an accused that are determined to be concocted and are thereby capable of consideration as potentialcircumstantial evidence of guilt: R v Coutts, (1998) (ON CA), 40 OR (3d) 198 at para 15 (Ont. C.A.).

As stated byFenton JA in R v Beckett, 2020 BCCA 262 at para 14: However, the law draws a firm distinction between statements that are disbelieved and therefore rejected by the trier of fact, and thosethat are proved to be intentionally fabricated. The former have no evidentiary value, the latter are evidence from which an inference ofconsciousness of guilt might be drawn. If that inference is drawn, the trier of fact can use it in deciding whether the Crown has proved

beyond a reasonable doubt that the accused committed the crime. [117] Importantly, the trier of fact may not conclude from simply disbelieving the accused that the accused’s version wasintentionally fabricated.

As Fenton JA stated in Beckett at para 20, “the danger of improper reasoning – from disbelief of the accused’sversion of events to guilt – is addressed by the requirement that, before the Crown can invite the jury to use their disbelief of thestatement as evidence against the accused, it must show by way of a different body of evidence that the statement was intentionallyconcocted by the accused.” [118] Therefore, mere disbelief of the accused’s statement will not meet the threshold for the trier of fact to properly consider thefalse statements of the accused as after-the-fact conduct capable of supporting a finding that the accused committed the crime.

Instead,the evidence adduced in support of the alleged fabrication must be independent of the exculpatory statement itself. [119] The Ontario Court of Appeal in R v Al-Enzi, 2021 ONCA 81 at para 41 summarized these principles as follows: i. The trier of fact may, but does not have to, disbelieve the accused’s exculpatory statement; ii. If they disbelieve the statement, is there other, independent evidence upon which they may, but do not haveto, find that the accused fabricated the exculpatory statement; iii.

If, on the basis of the independent evidence, they do not find that the accused fabricated the statement, theymust ignore the statement and treat it as if it had never been given. (I would add, once again, this is if the statement has beendisbelieved); and, iv. By contrast, if they do find that the accused fabricated the statement, they may consider the reason why theaccused fabricated the statement, including whether it was to conceal their involvement in the offence(

s) charged. This determinationmust be made in light of all of the evidence. 4. The First Count – Aggravated Assault of August 20, 2017 [120] This Count alleges that the Accused intentionally applied force to HS, and by application of that force caused the fractures toHS’s femur and relatedly to her pubis. In these circumstances given the force required to fracture HS’s femur/pubis, aside from relevantpolicy considerations, it would be nonsensical to speak of consent in the context of a 2-year-old.

Quite obviously, the force required tobreak her femur/pelvis or to intentionally cause the severe burns to her hands, cannot be justified as reasonable under s. 43 of theCriminal Code: Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4. [121]

Section 268 of the Criminal Code provides as follows: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [122] I am satisfied that the fracture to HS’s femur/pubis maimed HS, because she suffered a significant loss of the use or function ofher body: R v McPhee, 2018 ONCA 1016.

Quite obviously, the fracture to HS’s leg, rendered that limb essentially useless until it healed,and only after the necessary surgical intervention. [123] The mens rea of assault requires the Crown to prove beyond a reasonable doubt that the Accused intentionally applied force toHS knowing that there was no consent to the application of force or being subjectively reckless as to whether there was consent.

As Ihave just said, consent is not at issue in the present circumstances. [124] Renke J in R v SNA, 2018 ABQB 1052 at paras 51-53 thoughtfully described the necessary aggravating circumstances that theCrown must prove under s. 268 of the Criminal Code: With respect to the aggravating circumstances, the Crown must prove that the force the accused applied to the complainant wounded,maimed, or disfigured the complainant or endangered the complainant’s life.

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

Rather, the Crown must prove that a reasonable person, in thecircumstances, would have realized that the force the accused applied would put the complainant at risk of suffering some kind ofbodily harm (i.e., non-trivial, non-transitory bodily harm): R v Williams, 2003 SCC 41 at para 22; R v Godin, (SCC),[1994] 2 SCR 484 at p 485; R v SEL, 2012 ABQB 190, Hillier J at para 95; R v Dennington, 2017 ABPC 4, Pharo PCJ at para 46;Donnelly at para 209.

Under s. 2 of the Criminal Code, “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of theperson and that is more than merely transient or trifling in nature. [125] Renke J also considered a similar argument to one advanced by Defence counsel before me.

Defence counsel suggests that theCrown cannot prove the actus reus of an aggravated assault on HS, assuming I reject the explanation made by the Accused that HSaccidentally fell down the stairs, because the Crown did not call any evidence to explain the cause of the fracture to HS’s femur/pubis.Defence counsel made a similar argument in relation to HS’s burned and disfigured hands.

In answer, I adopt the analysis made byJustice Renke in SNA, at paras 229-230: A frequent theme of the Defence submissions was that the Crown did not provide evidence respecting what caused A.B.’s injuries,where those injuries were caused, or how those injuries were caused. One way to put this point was that there was no “direct or positive”evidence of the “corpus delicti.” Yet while that observation is true, it is not a determinative consideration.

What occurred may be established by circumstantial evidence – keeping in mind the cautions of Villaroman reviewed earlier. In R vMonteleone, (SCC), [1987] 2 SCR 154, Justice McIntyre wrote the following at p 164: ...The courts have frequently recognized the fact that the corpus delicti, that is, the act which constitutes the crime...may be proved bycircumstantial evidence. This subject is dealt with at

Chapter 17, and following chapters of, McWilliams, Canadian Criminal Evidence (2nd ed. 1984). At page 541, the author refers to the words of Wills, An Essay on the Principles of Circumstantial Evidence (6th ed.1912), at p 326: It is clearly established law that it is not necessary that the corpus delicti should be proved by direct and positive evidence, and it wouldbe most unreasonable to require such evidence.

Crimes, and especially those of the worst kinds, are naturally committed at chosen times,and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present... ... See R v Cooper, 2002 ABCA 236 at paras 1-4; R v Vader, 2016 ABQB 505, at paras 643-649, 667-670, 2016 ABQB 625, Thomas J. A.

Accident or Unlawful Act [126] Mindful of these legal principles, the parties argue there is only one primary issue: Was HS’s femur/pubis fractured because ofan accidental fall down the stairs, or did the fractures result from an intentional assault by the Accused on HS? [127] I find, as a general comment, that the various statements made by the Accused concerning HS’s injuries contained numerousand deliberate lies.

These utterances were made by the Accused to conceal the Accused’s role in having assaulted HS and having therebycaused the fractures to HS’s femur/pubis. [128] More specifically, mindful of the cautions considering the proper use of after-the-fact conduct as circumstantial evidence, andmost particularly the temptation to fill in or otherwise excuse evidentiary gaps, I find that the Accused deliberately lied when shesuggested that HS fell down 5 or 6 carpeted stairs.

The Accused’s description of HS’s fall is not only inconsistent with the expertevidence; I cannot find that there is an innocent explanation for the Accused’s deceptiveness. Instead, I find, that the Accuseddeliberately concocted a story suggesting that HS accidentally fell down the stairs, and that she did so for the purpose of attempting toavoid criminal responsibility. The medical expert evidence confirms that the Accused lied and provides the necessary independentevidence for me to consider the Accused’s after-the-fact conduct as probative evidence of her guilt.

In other words, I do not simplydisbelieve the Accused; I find, instead, that the medical evidence independently proves that the Accused deliberately fabricated herexculpatory story for the purpose of attempting to avoid investigative detection and criminal prosecution. [129] Having considered all the evidence, including the gaps in the evidence, and mindful of the inherent limitations of inference-drawing based upon human experience and common sense, I draw the inference that the Accused intentionally assaulted HS and causedher broken femur/pubis.

The medical evidence suggests, and I find, that these two injuries were concurrently inflicted. The Accused’sexculpatory explanations as to how HS suffered the fracture to her femur/pubis are neither plausible nor reasonable. [130] The Accused does not suggest that any other adult person was present when HS suffered the fracture to her femur/pubis; nor,does she suggest that someone else either assaulted or otherwise caused the injuries.

I find beyond a reasonable doubt that not only didthe Accused intentionally assault HS, but that the force used was both sufficient and significant enough to maim HS by fracturing herfemur and her pubis. I also find that a reasonable person, in the Accused’s circumstances, would have realized that the significant forcerequired to injure HS in this manner would put HS at risk of suffering some kind of bodily harm.

In other words, the Crown has provenboth the actus reus and the mens rea required to find the Accused guilty in relation to Count 1. [131] I will further explain. [132] As a starting point, highlighting basic principles, I could not find that the Accused intentionally injured HS’s right leg andpelvis if I believed her exculpatory statements; or, similarly, if I had doubt about whether they were true; or, just as importantly, havingconcluded that the Accused fabricated her exculpatory statements, I must not convict the Accused if the totality of evidence otherwiseleaves me in reasonable doubt.

Of course, it is also trite that a trial is not a credibility contest, which requires that a choice be madebetween conflicting evidence. Here, I have rejected the Accused’s exculpatory statements, they do not otherwise leave me withreasonable doubt, and the totality of the evidence does persuade me of the Accused’s guilt beyond a reasonable doubt. [133] The Accused steadfastly maintained the false narrative, repeated to Detective Spence on August 22, 2017, which suggests thatHS was incapable of feeling pain.

The Accused falsely told Detective Spence that she discussed HS’s inability to feel pain with herOkotoks pediatrician, Dr. Klym, and that the pediatrician suggested that HS’s failure to cry in response to painful events was normal.This conversation did not occur. The Accused, quite unbelievably, went so far as to suggest that HS did not feel pain even at the time thather femur was broken into pieces and displaced; this, notwithstanding, Dr. MacPherson’s opinion that the fracture would causeimmediate and severe pain.

The suggestion made by the Accused that HS did not react or express pain after falling down the stairs andfracturing her femur/pubis is a deliberate concoction designed to avoid any suspicion that the Accused deliberately caused HS’sfractures. In addition, this lie served as a necessary extension of the lie that the Accused used to explain the burns to HS’s hands; a liethat furthered the Accused’s narrative that her two-year-old daughter hurt herself because of her own recklessness.

This recklessness, assuggested by the Accused, was borne of HS’s fearlessness; a fearlessness that the Accused suggested was spawned by HS’s inability toexperience pain. The Accused told Detective Spence that after the fall down 6 carpeted stairs, [HS] “was just laying there and looked atme. She didn’t – like no reaction, no crying.” In this regard, it is important to note that the Accused gave her videotaped statement in acalm and deliberate manner. She was not stressed nor panicked.

Detective Spence did not ask leading questions and the interview waswhat you might otherwise describe as a soft interview, akin to a friendly conversation. [134] The triage nurse, Edward Calder, noted in the hospital chart that the Accused inconsistently told him that HS “cried

immediately”. While Mr. Calder admitted in cross examination that his note might simply refer to the Accused telling him that HS criedout by making some type of noise, what the Accused told Mr. Calder is quite incompatible with the description she gave to DetectiveSpence, a description that suggests that that HS did not react or cry after falling down the stairs. [135] I accept the evidence of numerous witnesses who describe HS as displaying and vocalizing expected expressions of pain. Forexample, Dr.

MacPherson described HS expressing discomfort when she discovered that a hairbrush had become lodged between HS’sback and a chair that she was sitting on. Dr. Innes, the expert who investigated the possibility that HS had the rare genetic disorder, CIP,elected to forego genetic testing because of HS’s reported history and his own observations revealing that HS appeared to both feel andmake expressions of experiencing pain. Dr. Innes had occasion to see HS bump her head against his examination table on threeoccasions. HS reacted appropriately by expressing that the bumping of her head hurt.

Other caregivers, such as Joanne Busse, also clearlysaid that they observed HS to react appropriately to painful events, including hot and cold temperatures, by making expressionssuggesting tha

[…]