R. v. H., 2013 BCSC 1756

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. H., 2013 BCSC 1756 Date: 20130710 Docket: 34258 Registry: Port Alberni Regina v. L.H. Restriction on Publication: Pursuant to 486.5(1) C.C.C. Correction Judgment: Edited for publication on April 23, 2014, para. 19 fourth line the word likely removed, para. 38, fourthline sentence should read: The provenance of these reports was not explained, and, in any event, Dr. Ferguson set to one sideother sources of information . . . on April 23, 2014 Before: The Honourable Mr. Justice Baird Corrigendum to Oral Reasons for Judgment Counsel for the Crown: T. PatolaG.

MerkeCounsel for the Accused: E. WilliamsPlace and Date of Trial: Port Alberni, B.C. April 22, 23,24,25,26,29,30, May 6,7, July 8 and 9Place and Date of Judgment: Port Alberni, B.C. July 10, 2013 [1] THE COURT: L.H. is charged that on May 12, 2011, she committed an aggravated assault upon H.F., her natural child, thenaged seven months. [2] The evidence plainly establishes that, at approximately 9:30 a.m. on the date in question, Ms. H. applied force to the person ofher infant son.

There is no question, either, that this application of force caused significant injuries to H.F., being subdural hematoma,retinal hemorrhaging, and brain injury. [3] The question to be decided, it seems to me, is whether the Crown has proved beyond a reasonable doubt that the accused, in thecircumstances, cannot avail herself of the defence of deemed or implied consent, because she employed a level of force that is notconsistent with "the customary norms of parenting or what a reasonable parent would do in similar circumstances" or because, if it isdetermined that she employed the force in caring for her child, she used excessive force: R. v.

E. (A.) (2000), (ONCA), 146 C.C.C. (3d) 449 (Ontario Court of Appeal). [4] If the Crown fails in this burden, the accused is entitled to an acquittal. [5] I will begin with what I consider to be a vital finding of fact. There was no evidence adduced on this trial to suggest that H.F.,before 9:30 a.m. or so on May 12, 2011, was anything other than a healthy, fit infant.

There was no evidence to suggest that he had eversuffered from any form of previous injury or that during his brief life to that point he had been ill or abused in any way. [6] The evidence suggests that H.F. may have been fussy or irritable in the days before May 12, 2011, but I reject asunsubstantiated and speculative the suggestion that this may have been symptomatic of a brain injury, retinal hemorrhaging, or any otherpre-existing undiagnosed medical condition that, as defence counsel theorized in argument, may somehow have compromised H.F.'shealth and rendered him more susceptible to injury on May 12, 2011. [7] To the contrary, P.F., H.F.'s father, testified that H.F. was healthy and well during his first seven months.

He had not requiredany medical attention, had never been injured, and most importantly on the morning of May 12, 2011, when Mr. F. left the house that heshared with the accused and H.F. around 9:00 a.m., H.F. was happy, alert, responsive, and in good health. [8] Furthermore, the investigating authorities in this case accessed H.F.'s entire medical file, and there is no indication in them thatH.F. attended upon any physician for treatment of any injury or illness prior to May 12, 2011. This was confirmed by H.F.'s familyphysician, Dr.

Smit, who testified that H.F. was healthy at birth and had not subsequently required medical treatment of any kind. [9] P.F. testified that just before leaving the house on May 12, 2011, he and the accused had a nasty argument. The accused, hesaid, had already displayed temper towards H.F. by removing him briskly from his swing chair and placing him on an air mattress on thefloor. She did this, I infer, because H.F. was fussing. When she put him down, she apparently said words to the effect of, "There, now

you can fucking see." [ 10 ] Mr. F. was upset that the accused had used this sort of language towards their son and, no doubt aggravating an already tense domestic scene, he said, "Don't fucking swear at the baby." [ 11 ] It is clear that this was followed by rather an unpleasant, profane, and upsetting argument between the two adults which ended when Mr. F. left the house abruptly. The only persons left in the dwelling after his departure were the accused, H.F., and a two-year-old child of the accused from a prior relationship. [ 12 ] Shortly after leaving, Mr.

F. received a text message from the accused, which he ignored, imploring him to return home and to bring her coffee. There was a brief hiatus before the accused sent him a second text indicating that H.F. had stopped breathing and that they were on their way to hospital in an ambulance.

The evidence establishes that the ambulance was called at 9:36 a.m. [ 13 ] The evidence of what happened between 9:00 a.m, when P.F. left the house, and 9:36 a.m. when emergency assistance was summoned, is derived primarily from statements made by the accused to the police, a confession that she made to P.F. in the presence of his mother, R.F., and writings from the accused's diary or journal that were submitted in evidence by consent. [ 14 ] In her statement to the police taken on May 17, 2011, after some gentle cajoling, the accused said that after P.F. left the residence, H.F. would not stop crying and that she bounced him aggressively on the air mattress.

She had all kinds of emotions running through her head, she said. She was angry and she bounced H.F. on the mattress "really hard". She said that she did not lay hands directly on H.F., but "slammed down" on the mattress with her arms on either side of H.F.'s body. She said, "I was really aggressive", "I am the only one to blame here", "I am the one responsible for putting my child in the hospital", and "I am guilty as charged." [ 15 ] Not long after making this statement, the accused arranged to meet P.F. to explain to him what had happened.

The accused apparently demonstrated for P.F. what she had done, describing how she had bounced H.F. on the air mattress. Mr. F. testified that the demonstration indicated that the accused bounced H.F. aggressively on the air mattress for some protracted period, with a degree of force that he found to be shocking and excessive. [ 16 ] P.F.'s mother, R.F., was present during this conversation or interaction between her son and the accused, and she recalled the accused saying that H.F. would not stop crying, so she bounced him up and down on the mattress repeatedly.

The accused indicated that she had done this with increasing force, harder and harder, until in the end H.F. stopped breathing. [ 17 ] In her journal or diary, in an entry apparently recorded on June 11, 2011, the accused wrote, in relation to the incident in question, that she and P.F. were quarrelling before he left the house. She indicated that it was a very coarse, unpleasant, and upsetting argument. Mr. F. called her foul names. She set out a brief history of his abusive behaviour towards her. As he left the house, he made an obscene gesture towards her.

At that point, she wrote, "[H.F.] started crying right away and I sat on the couch crying with him.

I snapped and jumped on the bed screaming, 'stop crying', as my arms hit the bed around him, and he must have bounced, but it hurt him and that was never my intention." [ 18 ] I pause to stress that none of this evidence was contradicted. [ 19 ] A number of expert medical witnesses were called by the Crown, each of whom gave more or less unchallenged evidence which, viewed cumulatively, make it abundantly clear that H.F. suffered the injuries set out above, namely subdural hematoma, retinal hemorrhaging, and brain injury, and that these were sustained as a direct consequence of his mother's treatment of him on May 12, 2011. [ 20 ] I emphasize now that there was no controversy over the issue of causation during this trial.

The defence theory is twofold: first, that the actions of the accused were within the deemed consent of the infant and did not constitute an assault; and second, that there was or may have been a pre-existing injury to the child which was unknowingly aggravated by the actions of the accused while attempting to calm the child on the mattress. [ 21 ] According to this second prong of the defence theory, if anything, the accused may be guilty of common but not aggravated assault, because in the circumstances it was not objectively foreseeable that the level of force applied would cause bodily harm. [ 22 ] One of the expert witnesses called by the Crown was Dr.

Michael Sargent, a pediatric radiologist, who said that he thought it likely that the subdural bleeding and brain damage that he observed in a number of MRIs and CT scans taken of H.F. in the days following May 12, 2011, were likely from the same traumatic event, and that the single event occurred near the time of H.F.'s admission to hospital. [ 23 ] However, because there was intermediate density subdural blood collection with superimposed acute blood on the left side of H.F.'s brain, Dr. Sargent found that it was not possible to determine if there had been one or more hemorrhagic events.

To borrow from the vernacular that was often used during this trial, he could not rule out that there had been a prior subdural bleed. [ 24 ] This point was central to the expert opinion evidence given by the sole defence witness called to testify, Dr. Charles Ferguson, a highly-experienced and respected pediatric specialist and the director of the Child Protection Centre in Winnipeg. [ 25 ] Dr. Ferguson agreed that H.F. suffered a serious traumatic brain injury that was causally related to the incident of May 12, 2011, but offered the opinion that H.F. may have sustained a previous intracranial trauma. Dr.

Ferguson based this opinion on his reading of Dr. Sargent's reports, which he said "confirmed" that there had been subdural bleeding before May 12, 2011. [ 26 ] Based in large measure upon a single journal

article written in 2002 entitled, "Intracranial hemorrhage and rebleeding in suspected victims of abusive head trauma: Addressing the forensic controversies" by Kent. P. Hymel, Carole Jenny, and Robert W. Block, published by Sage Publications on behalf of the American Professional Society on the Abuse of Children, Dr. Ferguson offered the opinion that H.F. had suffered a previous subdural bleed, and that what had happened on May 12, 2011, was a "rebleed", which contributed to a "mass effect" on the brain and the consequent alarming deterioration in H.F.'s physical health witnessed by all those who

dealt with him from his admission to hospital onwards. [ 27 ] The accused, said Dr. Ferguson, had only been trying to soothe H.F. and could not have been expected to know that her efforts would trigger such a rebleed. He suggested that the accused's actions were causative of the injuries, but only in a minor way. [ 28 ] In my respectful view, there are a number of weaknesses in this theory. First of all, Dr. Ferguson's opinion concerning the possibility of a previous intracranial injury was based solely upon his

interpretation of Dr. Sargent's reports. He testified, "My basis for the previous injury were the imaging reports, period." [ 29 ] When Dr. Ferguson was referred to these reports, he freely conceded that he was not well versed in the verbiage and jargon of radiologists, and if there were inquiries to be made concerning the exact meaning of the language in these reports, they should be directed to Dr. Sargent. [ 30 ] Dr.

Sargent had already testified, of course, and while he said that the CT and MR images did not rule out the possibility of an old hemorrhage or a previous subdural bleed, in a child such as H.F., an equally or even more likely explanation for lower density subdural blood collections resulting from trauma was the admixture of new or acute blood with other fluids such as cerebral spinal fluid. [ 31 ] On this subject, Dr. Sargent testified as follows, and I quote: . . . in [H.F.]'s case, we saw the bright white of the CT scan telling us there was acute hemorrhage.

So it could have been that there was old hemorrhage and there's an acute one superimposed. The other possibility though is that you have a single acute hemorrhage which is a bright white and that instead of the fluid -- the hemorrhage being contained like it tends to be in adults, other fluids are able to mix with it and that's all from a recent event -- you know, all part and parcel of the same acute process. So both an old hemorrhage with something -- with a new hemorrhage on top of it is possible to look the same as a new hemorrhage that's got fluid mixing in with it.

And that is more likely to happen in children because the separate compartments, the subdural space, the subarachnoid space, subdural compartment, epidural space tend to not be as well delineated or separated as they are in adults. So there's more chance for mixing of fluids in the different places. Q Either way, you're still finding a new hemorrhage. A There is new hemorrhage inside [H.F.], yes. [ 32 ] In other words, Dr. Sargent's opinion was nowhere near as certain about the presence of previous subdural bleeding as Dr. Ferguson's

interpretation of his radiology report seemed to suppose. Such a possibility was speculation only. [ 33 ] According to Dr. Ferguson, however, these reports were clear that there had been two stages of bleeding. It is important to emphasize that Dr. Ferguson is not qualified to read or interpret CT and MR imaging. Dr. Sargent is so qualified, and he testified merely that a previous hemorrhagic event could not be ruled out. This is important because Dr.

Ferguson, in his expert opinion letter filed in evidence, said that if "acute" findings only had been seen in the hospital imaging, the application of force by the accused upon H.F. would have to be considered as solely causative of the injuries with which H.F. presented on his admission to hospital. [ 34 ] Secondly, the

article referred to by Dr. Ferguson, and which I have already named and upon which his theory of rebleeding was apparently premised, contained the following warning: Because so many conditions may be confused with bleeding and rebleeding on CT or MR cranial imaging, it is highly likely that subdural bleeding with rebleeding has been overdiagnosed in the past. If this is true, then current opinions regarding the frequency, consequences, or forensic significance of subdural rebleeding should be considered speculative. [ 35 ] Thirdly, Dr.

Ferguson's opinion that the accused's actions were only minimally causative of H.F.'s injuries was based in material measure upon the supposition, nowhere established in the record of evidence taken on this trial, that at the critical time the accused was doing nothing more than attempting to soothe, console, or calm H.F. by means of a non-contact, non-violent, previously successful method of gently bouncing him up and down. [ 36 ] The accused's statement to the police did not seem to concern Dr. Ferguson. He said that he had read but was not affected by the accused's diary entry about what had happened.

He was certain he had read R.F.'s report of the accused's confession to her son, but could not recall anything about it. He had read P.F.'s statement to the police concerning the same confession, but he could not recall its details and said that, in any event: I think that the opinions of other parties in these events are - I see with some scepticism, even more. [ 37 ] Fourthly, Dr.

Ferguson's testimonial evidence that, in the absence of a previous incident of trauma, the accused's application of force would not have caused H.F.'s injuries directly contradicts the opinion, expressed in his filed report and referred to earlier, that if only acute findings had been seen at the hospital, this application of force would have to be considered causative. [ 38 ] Fifthly, Dr.

Ferguson’s opinion concerning a previous intracranial trauma was based on reports that he had read indicating that H.F. had been irritable, inconsolable and suffering from sleeplessness for at least two weeks prior to May 12, 2011. The provenance of these reports was not explained, and, in any event, Dr. Ferguson set to one side other sources of information indicating that H.F. had been happy and well throughout, because such sources were in the minority. [ 39 ] Finally, Dr.

Ferguson testified firmly, in answer to questions asked in his examination in chief, that if a theoretical seven-month-old infant had suffered from a previous bleed followed by a rebleed, the rebleed would not account for injury to the substance of the brain or retinal hemorrhaging, such as were exhibited by H.F. on his admission to hospital.

This not only conflicted with his opinion expressed later in his testimony, based on the previously-mentioned journal article, that a "rebleed" could contribute to a mass effect on the brain and a rapid deterioration in health, but suggested that H.F. must have suffered these injuries prior to the

theoretical rebleed, which is of course not possible. Never before had H.F. been rendered comatose, exhibited seizures, retinalhemorrhaging, or any of the other dire symptoms of serious traumatic head injury observed by all the medical personnel who treated himon or after May 12, 2011. [40] In

summary, as I said at the outset, I find as a fact that prior to May 12, 2011, H.F. was a healthy and well infant. [41] Dr. Ferguson's suggestion that H.F. may have suffered from a previous intracranial trauma I find to be unpersuasive andspeculative. His opinion as to the possibility of a previous bleed followed by a rebleed was similarly speculative, based as it was uponDr. Sargent's speculation that there may have been more than one hemorrhagic event, and upon the scholarship contained in a singlejournal

article whose authors were at pains to emphasize that current opinions regarding the frequency, consequences, or forensicsignificance of subdural rebleeding should be considered speculative. [42] He based his opinion that the accused's application of force upon the child was only minimally causative of the injuries hesuffered on the supposition, not established in evidence, that the accused had merely been attempting to soothe or calm the child in anon-violent manner.

He disregarded evidence suggesting that in fact the mother had snapped and assaulted H.F. out of anger andfrustration, and he looked askance at sources of evidence suggesting that H.F. had enjoyed good health before May 12, 2011. [43] Finally, his opinion concerning the forensic consequences of a rebleed was contradictory, confusing, and unhelpful. [44] In short, I find that I cannot place much weight or reliance on Dr.

Ferguson's opinion or testimony. [45] I am left with a situation that, when it comes to it, is not all that difficult to evaluate. [46] H.F. was healthy and well at 9:00 a.m. on May 12, 2011, when his father left the house. After 9:36 a.m., he suffered fromsubdural bleeding, retinal hemorrhaging, and traumatic brain injury. It is clear that in the interval the accused applied force to H.F. [47] I find as a fact that the force applied by the accused upon her son had nothing to do with caring for him or with soothing,calming, or consoling him.

I find, to the contrary, that this was a violent assault perpetrated on a fragile and defenceless infant out ofanger and frustration and for no other reason.

This conduct was well outside the customary norms of parenting or what a reasonableparent would do in similar circumstances. [48] It follows that I am satisfied beyond a reasonable doubt that the Crown has negatived the defence of deemed or implied consentand that the force applied by the accused to the infant H.F. constituted an unlawful assault. [49] The remaining question is whether the Crown has proved beyond a reasonable doubt that this was a case of aggravated assault.There is no doubt that the assault caused subdural bleeding, retinal hemorrhaging, and brain injury, consequences which clearly fallwithin the range of those identified in s. 268 of the Criminal Code. [50] As Cory J. observed in R. v.

Godin, (SCC), [1994] S.C.J. 55: The mens rea required for s. 268(1) of the Criminal Code . . . is objective foresight of bodily harm. It is not necessary that there be anintent to wound or maim or disfigure. [51] Otherwise stated, the question is whether a reasonable person would foresee that the accused's assault upon H.F. would result inbodily harm, as that term is defined in s. 2 of the Criminal Code, being: . . . any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or triflingin nature . . . R. v. Palombi, 2007 ONCA 486 , [2007] O.J.

No. 2611 (C.A.). [52] I have no hesitation in concluding that the Crown has discharged this burden. For emphasis, I reject the defence theory that H.F.suffered from a previous injury that rendered him more susceptible to the injuries inflicted upon him on May 12, 2011.

I assess the matterfrom the viewpoint that there was nothing wrong with H.F. before he was assaulted by the accused. [53] While there may be debate in some medical circles about the precise level of force required to cause the traumatic injuriessuffered by H.F., I find as a fact that whatever force was necessary to do so was in fact applied by the accused to H.F., and that it had tohave been significant.

There is simply no other reasonable inference or conclusion to be drawn from all of the evidence. [54] In my considered opinion, a reasonable person would foresee that an assault upon an infant of the magnitude that I find beyonda reasonable doubt must have occurred in this case, and such as Ms.

H. herself has confessed committing upon her infant son in which,out of anger and nothing more, she set upon him and forcefully and aggressively bounced him up and down, harder and harder, until hestopped breathing, would result in the sort of hurt or injury described in s. 2 of the Criminal Code. [55] Stand up, please, Ms. H. [56] I find you guilty of aggravated assault upon your son, H.F. “Baird J.”