Her Majesty the Queen - v. -, 2016 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 135 Date: October 11, 2016 Information: 33551407 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.M. Appearing: Mr. C. White For the Crown Ms. K. DeMars -Krentz For the Accused Note: Pursuant to

Section 486.4 of the Criminal Code the Court made an order directing that the identity of the complainant, and any information that could disclose the identity of the complainant, shall not be published in any document or broadcast in any way. ______________________________________________________________________________ JUDGMENT M.

HINDS , J INTRODUCTION [ 1 ] T.M. is charged that on or about the 21st day of August A.D. 2015, at Regina, Saskatchewan, he committed an assault on his infant son, M.K. and breached a condition of his undertaking to not be at the residence of S.K., contrary to sections 266 and 145(5.1) respectively, of the Criminal Code . [ 2 ] The Crown called five witnesses: the infant’s mother, S.K.; her sister, B.K.; Constable Curtis Neufeld; Constable Jeffrey Lewis;

Corporal Rene LeClair and Dr. Juliet Soper. The defence called one witness, the accused’s mother D.M. THE FACTS [ 3 ] S.K., age 21, and the accused, T.M., age 26, are the parents of an infant boy, M.K. who was born on October 26, 2014. On August 21, 2015 M.K was approximately 10 months old. [ 4 ] S.K. and T.M. met in 2009. They have had an on and off relationship since that time . Prior to August 21, 2015 T.M. had entered into an officer’s undertaking. One of the conditions of the undertaking was that he was not to be at the residence of S.K.

The evidence reveals that in the summer of 2015 S.K. and T.M. were living together with their child at S.K.’s residence situated at 1122 Angus Street, Regina. The Crown has clearly established that T.M. is guilty of count two. [ 5 ] On August 21, 2015 T.M. left the residence to go to work around 5:30 or 6:00 a.m. S.K. spent the morning and afternoon at home with M.K. S.K. was scheduled to work at her job at Centennial Bingo beginning at 5:00 p.m. She was expecting that T.M. would get home before she had to leave for her work. T.M. did not come home until approximately 6:10 p.m.

Prior to this time S.K. made arrangements for her 15 year old sister B.K. to come to her residence to baby sit M.K. B.K. got to the residence between 5:10 and 5: 15 p.m. S.K. left her residence and got to her work place around 5:30 p.m. [ 6 ] T.M. came home around 6:10 p.m. T.M. was in the company of “some guy”. The two men spent a short time together outside the residence. About this same time, B.K.’s father and brother came over to the house to pick up B.K. B.K.’s father and brother came into the house and had a quick visit with M.K. Shortly thereafter, T.M. came inside the residence.

B.K. left M.K. in the care of T.M. B.K., her father and brother left the residence around 6: 25 p.m. and went out for supper. [ 7 ] When S.K. left M.K. in the care of her sister B.K. around 5:10 p.m., he was his “normal bubbly self”. M.K. had several mosquito bites on his face and body. M.K. did not have any visible bruises on his face. When B.K. left M.K. in the care of T.M. around 6:25 p.m., she was of the view that T.M. was his normal self. B.K. did not observe any signs that T.M. had been drinking.

In addition, she did not observe any bruises on M.K.’s face. [ 8 ] B.K. advised her sister, S.K., that T.M. was taking care of M.K. Between 6:45 and 7:00 p.m. S.K. sent about five text messages to T.M. He responded to her at first and then his phone “went dead”. Her text messages were no longer being delivered to T.M. S.K. decided to leave work. Initially S.K. went to her mother’s home and got $20.00 cash for more baby formula. S.K. got home at 8:00 p.m. and immediately went to and used the washroom.

S.K. smelled the odour of marijuana in the residence. [ 9 ] While S.K. was in the bathroom, T.M. knocked on the door and said “Hurry up home girl”. When S.K. came out of the bathroom she observed that T.M. had a blanket wrapped around him. S.K. then went into the bedroom and observed that her son M.K. was situated on the bed wrapped up in a sheet. M.K. was whimpering. She picked M.K. up, turned on the light in the room and observed some bruises and marks on M.K.’s face. [ 10 ] S.K. held M.K. while T.M. asked her to give him the baby. She refused. M.K. began crying. Eventually T.M. stopped asking S.K. for M.K.

S.K. described T.M. as being “so incoherent, that there was no way to talk to him”. Around 8:25 p.m., S.K. sent a message on her iPhone to her aunt, her sister B.K., her mother and T.M.’s mother asking for help. B.K. arrived a short time later. [ 11 ] When B.K. arrived at the residence, she encountered T.M.. She could smell a whiff of

alcohol coming from T.M. She also observed that T.M. was swaying back and forth and assumed he was drunk. She also observed that T.M. was trying to get M.K. from S.K. S.K. asked B.K. to call the police. B.K. went into the bathroom and called the police. B.K. observed bruises on M.K.’s face. [ 12 ] Constables James Neufeld and Jeffrey Lewis arrived at 1122 Angus Street around 9:00 p.m. They were dispatched to a domestic call. Upon entering the residence they observed S.K., M.K. and B.K. were located by a couch in the living room. S.K. was very upset and told the officers that T.M. had assaulted her son.

Constable Neufeld testified in-chief that when he arrived the baby seemed “like a happy baby”. The officers observed some bruises, marks and swelling on the baby’s face. Constable Neufeld testified that the house smelled like marijuana. [ 13 ] The officers located T.M. in the bedroom where he was lying on his chest on the bed beneath some covers. The officers roused T.M.. Constable Lewis testified that he smelled an odour of alcohol on T.M.’s breath. He also observed the smell of marijuana coming from T.M. and that T.M.’s eyes were blood shot.

The officers advised him that he was under arrest for assault and handcuffed him. The officers read T.M. his Charter rights and standard police warning. Constable Lewis took T.M. to a police vehicle. Constable Neufeld stayed with the women and infant. During this time Constable Neufeld heard S.K. say that “M.K. had fallen out of the bed before”. [ 14 ] S.K., M.K. and B.K. were taken to the Regina General Hospital that evening by the police. Dr. Juliet Soper examined M.K. around 10:00 p.m. Dr. Juliet Soper is the Head of Pediatrics at the Regina General Hospital in Regina, Saskatchewan.

Following a voir dire I determined that Dr. Soper is qualified to give her opinion on the identification and treatment of injuries and ailments in children. I also found that Dr. Soper is qualified to give her opinion respecting the potential underlying reasons for the same. I further determined that Dr. Soper could testify about any bruises and other injuries that she found on the infant, M.K. and provide her opinion as to whether these injuries are consistent or inconsistent with certain factual scenarios including an accidental fall. [ 15 ] The evidence in-chief of Dr.

Soper can be summarized as follows: -She saw M.K. and S.K. around 10:00 p.m. - She first spoke to S.K. who was concerned about bruises on M.K.’s face.

S.K. advised her that M.K. is not walking independently but was able to “cruise” about. -She then observed M.K. at play in the waiting room and then did a clinical examination of M.K. from head to toe. -She determined that M.K. had no haematological (bleeding) disorders. -She observed that M.K. had a number of bruises on his face which she measured and photographed with the assistance of a nurse. -She defined a bruise as occurring when blood leaves damaged blood vessels and creates a discolouration.

She indicated that bruises typically require some form of trauma or increased pressure. -She defined a lesion as being any abnormal finding which includes bruises and abrasions. -She defined a petechiae as being pin point bruises, which typically occur when blood leaks out of capillaries.

-Medically speaking bruises can not be aged, nor can bruises be aged in relation to other bruises. -Bruises can take time to be recognized, particularly on soft surfaces such as the thigh or the front of the leg. -The injuries that she observed on M.K. were of concern to her. She expressed the opinion that children who are pre-ambulatory do not sustain such injures. -M.K. had a large bruise measuring 4 x 5 centimetres above his left eye brow. -M.K. had a faint blue bruise measuring 2 x1.5 centimetres overlying his medial right eye brow.

He also had a punctated lesion measuring .1 x.1 centimetres below this. -M.K. also had faint bruising under his right eye consisting of a 3.5 x 3 centimetre semi lunar bruise, a 2 millimetre x 22 millimetre punctate lesion and a 2 centimetre x 1centimetre poorly demarked bruise. -M.K. had a bruise on the top of his right ear which could not be measured as M.K. was moving about. -M.K. had three bruises on his torso. A bruise measuring .2 x .3 centimetres was situated under his right nipple. A similar bruise was located under his left nipple.

A bruise or mosquito bite was found on the back of one of his shoulders. -M.K. had numerous mosquito bites on his hands and right thigh. -Bruises to the ears are very rare. -Bruises to the forehead are common to children who are learning to walk. -Typically less than 5% of bruises occur on the right side of the face. -Dr. Soper opined that each bruise individually could have been occasioned by an accidental fall. She was of the view that M.K.’s bruises were not caused by a single fall. [ 16 ] The evidence of Dr.

Soper on cross-examination can be summarized as follows: -She obtained a developmental history of M.K. from S.K. M.K. sat independently at five to six months. He could roll at seven months. M.K. was cruising (moving) along furniture at seven months of age. -She observed that M.K. could crawl very well and he could push on the ground and move

his feet. M.K. could grab objects and she expected he could pinch. She did not observe the length of M.K.’s finger nails. -She testified that “I don’t believe I specifically asked if M.K. sustained previous falls.” -She determined that M.K. had sustained mosquito bites over the three or four previous days and some that same night. -When she first saw M.K. he was happy and cherubic. He did not appear to be in pain. He wasn’t crying, but was reluctant to be held, which is typical of a child of that age group. -She agreed that the punctate lesion on M.K.’s left forehead could have been from a mosquito bite.

She also agreed that the punctate lesion below M.K.’s right eye could be from a mosquito bite. -Bruises can take time to be recognized. - It is difficult to say how old the bruise above M.K.’s left eye is. The lesion above M.K.’s left eye could have occurred anytime in the preceding seven to ten days. -She agreed that 10 to 14% of children who are cruising get bruises on the nose and forehead (T region).

This is quite common. -While she maintained her opinion that M.K.’s bruises (left forehead, under right eye and on right ear) could not be occasioned by one fall, she conceded that it is possible that M.K.’s bruises could have been caused by multiple falls, which could have been accidental. -Intentionality can not be determined by an objective medical assessment. ISSUE [ 17 ] The sole issue before the court is whether or not the Crown has satisfied its burden to prove beyond a reasonable doubt that on August 21, 2015, T.M. assaulted his infant son, M.K.

THE LAW - ASSAULT [ 18 ] The offence of assault is defined in

section 265 of the Criminal Code . For the purposes of this trial section 265(1)(

a) is the relevant provision. It states as follows: 265(1) A person commits an assault when

(

a) without consent of another person, he applies force intentionally to that other person directly or indirectly; [19] In R v S.H. [2016] NJ 261 Judge Gorman summarized the law pertaining to assault as follows: 40 The least touching of another person without their consent constitutes an assault (see R. v. Dawydiuk (2010), 2010 BCCA 162, 253 C.C.C. (3d) 493 (B.C.C.A.)). The strength of the force is immaterial (see R. v. Palombi (2007), 2007 ONCA 486 ,222 C.C.C. (3d) 528 (Ont. C.A.)), but the application of the force must be intentional (see R. v. Ewanchuk (1999), (SCC), 131 C.C.C. (3d) 481 (S.C.C.)). 41 In R. v.

Starratt (1971), (ON CA), 5 C.C.C. (2d) 32, the Ontario Court of Appeal noted that toconstitute the offence of assault "it has to be shown beyond reasonable doubt that a person intentionally applied force." In R. v. George, (SCC), [1960] S.C.R. 871, it was held that in the context of an assault, the word "intentionally" is "exclusively related tothe application of force or to the manner in which force is applied." In R. v.

Bartlett (1989), (NL SC), 79 Nfld. &P.E.I.R. 143 (N.L.S.C.), it was held that all that is required to establish the mens rea of the offence of assault is "an intentional, non-consensual touching." Similarly, in Dawydiuk, the British Columbia Court of Appeal, after considering Mr. Justice Ritchie's commentsin George, held that in the context of section 265(1)(

a) of the Criminal Code the word "intentionally" simply means, "in the words ofRitchie J., 'not done by accident or through honest mistake.'" 42 In Ewanchuk, the Supreme Court of Canada considered the elements of the offence of assault in the context of asexual assault and held that assault is an offence of general intent and therefore the "Crown need only prove that the accused intended totouch the complainant in order to satisfy the basic mens rea requirement." 43 In R. v. Vardy, 2016 NLTD (G) 98, Justice Handrigan summarized the elements of an assault pursuant to section265(1)(

a) in the following manner: The least touching of another person without her consent constitutes an assault. The strength of the force is immaterial, but the application of the force must be intentional. The word intentionally is exclusively related to the application of force or to the manner in which force is applied. All that is required to establish the mens rea of the offence of assault is an intentional, non-consensual touching. The word intentionally means simply, not done by accident or through honest mistake. [20] I adopt this analysis of the law of assault.

CIRCUMSTANTIAL EVIDENCE [21] This case involves circumstantial evidence. In R v Farnham (Rock Hard Concrete Finishers) 2016 SKCA 111 had occasion to consider the law relating to circumstantial evidence. Madame Justice Ryan-Froslie stated asfollows: 37 Recently, the Supreme Court of Canada in R v Villaroman, 2016 SCC 33 [Villaroman], reconsidered the application of the rule inHodges Case and the statements pertaining to the law as set out in Griffin.

While Villaroman dealt with the appropriate instructions to begiven a jury in cases where the evidence against an accused was mainly circumstantial, the court's discussion of the rule in Hodges Case

is instructive. Of particular relevance to the case before this Court is Cromwell J.'s observation that the rule in Hodges Case is not merelyaimed at ensuring guilt is proven beyond a reasonable doubt in cases involving circumstantial evidence, but also addresses the concernthat a jury (and I would suggest a trial judge) may 'unconsciously 'fill in the blanks' or bridge gaps in the evidence to support aninference" it wishes to draw.

He stated the following at para 30: [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by tooquickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with anexample. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we maythen notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, andre-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanationsthan that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidenceand the absence of evidence, assessed logically, and in light of human experience and common sense. [22] In Villoroman Mr.

Justice Cromwell went on to consider whether the inference must be based on “proven fact” s at paragraphs 35 -38: 35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts" see R. v. McIver, (ON CA), [1965] 2 O.R. 475, at p. 479(C.A.), aff'd without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v.

Khela, 2009 SCC 4,[2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused toprove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferencesother than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. 36 I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered"speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubtbased on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). Acertain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and theabsence of evidence, assessed logically, and in light of human experience and common sense. 37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "otherreasonable possibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205and 211, per Middleton J.A., aff'd (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative thesereasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused": R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. "Other plausibletheories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation. 38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw.

But the basic questionis whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting aninference other than that the accused is guilty. [emphasis added] ANALYSIS [23] In the present case the evidence reveals that the infant M.K. was left in the care of the accused for about 95 minutes, between 6:25 and 8:00 p.m. on August 21, 2015. There is some evidence that another male had been inthe company of the accused immediately prior to 6:25 p.m.

The evidence of S.K. and her sister B.K. reveals that M.K. did not have anyvisible bruises on his face prior to 6:25 p.m. Shortly after arriving home at 8:00 p.m S.K. observed that there was an odour of marijuanain the air. Initially she went to the washroom. While she was in the washroom the accused told her to “Hurry up home girl”. When S.K.came out of the bathroom she observed that T.M. had a blanket wrapped around him. S.K. then went into the bedroom and observed

that her son M.K. was situated on the bed wrapped up in a sheet. M.K. was whimpering. She picked M.K. up, turned on the light in the room and observed some bruises and marks on M.K.’s face. S.K. held M.K. and refused to give him to the accused. S.K. described the accused as being “so incoherent, that there was no way to talk to him”. S.K. contacted her sister, B.K. who came to the residence and called the police. The police arrived around 9:00 p.m. and shortly thereafter arrested the accused and transported the women and the infant to the hospital. Dr. Soper spoke to S.K. about her son. Dr.

Soper observed and examined M.K. M.K. had bruises on his left forehead, under his right eye and on his right ear. [ 24 ] It is trite law that an infant such as M.K. can not consent to being assaulted. [ 25 ] The Crown takes the position that the only reasonable inference that the court can make from the evidence before it is that the accused T.M. intentionally applied force to M.K. and caused the bruises to his face. The Crown relies on the following facts: 1. M.K. did not have bruises on his face while in the care of his mother, S.K. or his aunt, B.K. 2.

M.K. is then in the sole care of the accused for 95 minutes between 6:25 and 8:00 p.m. 3. Shortly after arriving home, S.K. notices bruises on M.K. ’ s face. 4. The bruises are unexplained and according to Dr. Soper, are not consistent with a single fall. [ 26 ] The defence takes the position that the Crown has not proved the accused ’ s guilt beyond a reasonable doubt. The defence contends that bruises observed on the infant on August 21, 2015 could have occurred as a result of events such as accidental multiple falls which happened any time in the proceeding number of days.

The defence also highlights the evidence of Dr. Soper that it is quite common for infants which cruise to get bruises on their noses and foreheads. The defence also takes the position that the Crown has not established that the accused intentionally applied force to the infant. [ 27 ] I find there is merit to the position taken by the defence. In particular, I find there is evidence before the court which indicates the infant M.K. had previous accidental falls. In the first place there is the evidence of Constable Neufeld who heard S.K. say that “M.K. had fallen out of the bed before”. I accept this evidence.

I do not accept S.K. ’ s testimony wherein she emphatically denied that M.K. ever fell from her bed to the floor. There is also the evidence of the accused ’ s mother, D.M. D.M. testified that at the end of June or early July 2015, either her son or S.K. advised her that M.K. had fallen out of the bed. At the time D.M. responded by saying that she would purchase a crib for M.K. as soon as she could.

In addition, D.M. introduced into evidence a text message exchange dated July 24, 2015 [Exhibit D-3] between S.K. (SK) and herself (DM) which stated as follows: SK Hey DM Hey can I pick up baby for a couples (sic) hours around 1:30 SK Okay but we ’ re going to doctor first SK M.K. cut his mouth DM Aww is it bad SK Not really, he fell off the bed again . We need a crib in the worst way DM I ’ ll buy one today [emphasis added] D.M. testified that she believed S.K. and purchased a crib for M.K. on July 25, 2015. For her part, S.K. denied that M.K. fell off the bed on July 24, 2015.

She maintained that she lied to D.M. because she wanted D.M. to get a crib for M.K. On this point, I prefer the evidence of D.M. over that of S.K.

[ 28 ] In this case I find that there are range of reasonable inferences that can be drawn from the facts before me. One of the reasonable inferences is that the infant M.K. sustained multiple accidental falls prior to and/ or on August 21, 2015. M.K. was described as a curious infant who could cruise and crawl. Children of this age can and do sustain accidental injuries. As there is a reasonable inference which arises from the circumstantial evidence before me other than guilt, I find that the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

SUMMARY [ 29 ] The accused is acquitted on count number one, the assault charge. I find the accused guilty on count number two. ____________________________ M. Hinds, J