2016 QCCQ 2795, 2016 QCCQ 2795

Unofficial English Translation R. c. Vaudry 2016 QCCQ 2795 JR0900 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE LOCALITY OF SAINT-JÉRÔME "Criminal and Penal Division" No.: 700-01-124875-132 DATE: MARCH 31, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE CAROL RICHER, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

CHRISTINE VAUDRY Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ PUBLICATION BAN REGARDING THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT [ 1 ] The accused is charged with assaulting a 19-month-old child and causing bodily harm to the child on May 28, 2013, while she was operating a home daycare centre (

section 267(

b) of the Criminal Code ). [ 2 ] The accused faces a second charge, that of having failed in her legal duty to provide the necessaries of life to this child when the child was in destitute or necessitous circumstances ( section 215(3) (

a) of the Criminal Code ). [ 3 ] The accused had been operating a daycare centre for 17 years; she had six children under her supervision. [ 4 ] Child X, who was 19 months old at the time of the events, was spending his second day at the accused’s daycare centre. [ 5 ] X’s mother and J.L. were looking for a new daycare centre for their respective children. They found the accused’s daycare centre, which accepted children of their age. [ 6 ] X’s mother brought him to the accused’s daycare centre on May 28, 2013, at around 9 a.m.. He had spent a half-day at this daycare centre the previous day.

May 28, 2013 was therefore the second day that X attended this daycare centre. [ 7 ] The mother returned to pick up her son at around 3:45 p.m. that same day. She saw her son sitting [TRANSLATION] “ with his hands on the table and he was looking at his friend and in his face, I know my boy, I sensed something was wrong with him ”, his mother said. [ 8 ] The mother testified that before she arrived at the daycare centre, at around 3 p.m. at the office, she [TRANSLATION] “started to feel uneasy” , she had a “ feeling ” that something was wrong with her boy and that she had to go and pick him up.

She therefore left at around 3:30 p.m. and was at the daycare centre in less than 15 minutes. [ 9 ] When he saw his mother, X started to cry and called out to her [TRANSLATION] “ Mommy ”, while extending his arms to her. When he stood up, she saw that her son could not support his weight on his two legs; one leg gave way. She then asked the accused what had happened and the accused replied that she did not know and that his leg must have fallen asleep. [ 10 ] The mother says that her boy walked a little, but she noticed that he was limping. The accused told the mother that the child got up from his nap like that.

The accused rubbed the boy’s knee and leg to restore the circulation. The mother did not mention whether her son cried at that time. [ 11 ] It was only when it was time to put the child’s shoe on that he began to cry. The mother took the child in her arms and left; the accused apparently told her that she had noticed that he was missing a shoe when he was playing outdoors and that when she put the shoe back on, she may have tied it too tightly.

[ 12 ] The mother states that when X arrived at the daycare centre on May 28, 2013, he had no problem walking; in fact, he was running, which prompted the accused to tell him not to run. [ 13 ] Y, the young son of J.L., was also at the daycare centre that day. [ 14 ] The evidence would show, following a medical examination at the hospital, that X had suffered a broken leg, what is known as a “ toddler’s fracture ”. [ 15 ] Medical reports were filed noting this fracture; in addition, the parties agreed on the following admissions: [ translation ] In cases of toddler’s fracture, it is unlikely that the child will not complain, and the child cannot run or walk without pain.

The injury cannot have been caused by a manual twisting. The injury may have been caused by a fall, which is the most common cause. The injury may have been caused by a person who pushed the child while his foot remained caught. If cross-examined, Dr. McKenen would say that he was speaking generally and not about X’s specific case. [ 16 ] The medical report (P-1) also mentions marks on both of X’s arms which look like fingernail marks on the skin; the mother photographed these marks (P-3). [ 17 ] J.

L., the mother of the boy Y, was also heard during the Crown’s case. [ 18 ] She testified that X’s mother mentioned X’s fracture to her and suggested that she no longer send Y to the accused’s daycare centre. [ 19 ] Ms. L. then called the accused to inform her of the situation and also informed her about X’s broken leg. The accused seemed shocked to learn what had happened to X, she seemed [TRANSLATION] “shaken ”, says Ms. L. She could not explain how that could have happened.

The accused tried to come up with possible explanations, such as a shoe that was too tight, or that X may have hurt himself climbing onto a picnic table. According to Ms.

L., the accused seemed distraught. [ 20 ] The accused had worked in early childhood centres for 17 years without any complaints ever having been made against her. [ 21 ] Following the events at issue, various parents who had used the accused’s daycare services expressed their support for the accused and their satisfaction with the services she had rendered; five parents testified in writing as to their satisfaction (these testimonies were filed on consent of the parties as Exhibit D-1). [ 22 ] The accused denies any involvement in what may have caused the child’s broken leg. [ 23 ] She says that the children played outdoors from 10:00 a.m. to 11:30 a.m.

She did not see X fall, or be pushed by another child, or hurt himself. She remembers an argument over toys, but nothing more. [ 24 ] She remembers having seen Y and X climb onto a picnic table, however, and asking them to get down. She also recalls that X lost a shoe while playing outdoors and putting it back on his foot. [ 25 ] The children went back inside at around 11:45 a.m.

It should be noted that the accused was very specific about the times in her testimony because she referred to a long-established routine. [ 26 ] The children therefore came in for lunch at around 11:45 a.m. and had their meal at around 11:50 a.m. X ate, but not everything. He ate his dessert, but he had difficulty drinking. It appears that X did not yet know how to drink from a glass and that the accused was unaware of this at the time. [ 27 ] At around 12:30 p.m., X seemed tired, since he was resting his head on the table.

The accused changed his diaper, and he started his nap, on a small mattress on the floor, at around 12:40 p.m. X slept until 3:05 p.m. or 3:10 p.m. [ 28 ] The accused says that when X stood up, she noticed that his toes were pointing downwards and that his foot was in the air. [ 29 ] The accused thought at the time that X’s leg had fallen asleep, that he had pins and needles in his legs. X walked five or six steps further with the accused, and the accused then changed his diaper again and took the opportunity to examine him. She did not notice anything, no bumps, no bruises.

She examined the soles of his feet because he had lost a shoe outside in the morning, but she did not see anything. X was not crying. [ 30 ] After that, she took him to the table for his snack. The accused said that she carried him like a football to the table, because she always did that with the last child whose diaper she changed. [ 31 ] She served the children, including X, their snack at around 3:25 p.m.

X ate his crackers, and his mother arrived at around 3:35 p.m. or 3:40 p.m. [ 32 ] Between 20 and 30 minutes elapsed between the time X got up and the time his mother arrived at the daycare centre. [ 33 ] The accused saw the mother with X in her arms, and when the mother asked her what had happened to X, the accused told her

that he probably had pins and needles in his legs. [ 34 ] After that day, the accused did not hear from X’s mother, but rather from Y’s mother, L.M., who told her the day after the event that X had a fracture; she was shocked to learn that, she says. [ 35 ] One thing led to another, and the daycare coordination office decided to close the accused’s daycare centre. POSITIONS OF THE PARTIES [ 36 ] The Crown acknowledged at the outset that it had not submitted sufficient evidence to convict the accused of the charge of assault causing bodily harm.

The Crown admitted that it had failed to prove that the accused had deliberately done something that could have caused X’s leg fracture. [ 37 ] The Court agrees with the Crown’s position. The evidence presented, including the medical evidence, tends to confirm that the injury was caused by a fall. [ 38 ] In addition, there is no evidence that the accused might have used some form of violence against X.

Although there were clear marks on X’s arm, at no time did the Crown claim that these marks could have been caused by the accused. [ 39 ] That being said, the Crown claims that the accused is guilty of the offence under section 215(3) (

a) of the Criminal Code , that is, of having failed in her duty to provide the necessaries of life to the child. [ 40 ] The defence argues that X’s fracture probably occurred at the accused’s daycare but, in light of the accused’s testimony, which cannot be excluded without reason, and in light of the evidence adduced, the accused can certainly be given the benefit of reasonable doubt as to her guilt. THE LAW [ 41 ] Section 215(1) (

c) of the Criminal Code requires that a person who has another person under her charge provide necessaries of life to that person if by reason of age that person is unable to provide himself with necessaries of life. [ 42 ] Failure to perform this legal duty constitutes an offence if this failure endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be injured permanently ( section 215(2) (

b) of the Criminal Code ). [ 43 ] The conduct of a person charged under this

section must be assessed according to an objective standard, that is, there must be a marked departure from the standard of care that a reasonable person would observe if placed in the same circumstances. [1] [ 44 ] The courts have already established that medical attention is part of the necessaries of life, like food, shelter and protection. [2] [ 45 ] In R. v. S.J ., however, the Court of Appeal for Ontario said: [3]

Section 215 of the Code imposes an objective or community standard of conduct. The duty is not one of perfection. Similarly, mere negligence does not suffice. Rather, the question is whether there has been a “marked departure”. A parent is not required to run to a doctor or hospital whenever illness or the prospect of injury arises:… ANALYSIS [ 46 ] The evidence tends to show that X’s fracture occurred at the accused’s daycare centre on May 28, 2013.

Both X’s mother and the accused testified that when X arrived at the daycare centre, he had no problem with his leg; he was walking properly, running and, according to the accused, X even climbed onto a bench when he arrived. [ 47 ] It was only when the mother arrived at around 3:35 p.m. or 3:45 p.m. that she noticed that X was having difficulty standing.

The accused says that it was only after X’s nap – at around 3:05 p.m. or 3:10 p.m. – that she noticed that the toes of his foot were pointing downwards. [ 48 ] The only person who can testify about the events of the day is the accused, which is why her testimony is important. [ 49 ] In R. v. W.(D.) , [4] the Supreme Court of Canada said: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. … Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

A trial judge might well instruct the jury on the question of credibility along these lines: - First, if you believe the evidence of the accused, obviously you must acquit.

- Second, if you do not believe the testimony 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 50 ] The accused cannot explain how the fracture occurred. [ 51 ] She says that she did not see any incident where X could have hurt himself; X did not cry during the day, except concerning his drink at lunchtime.

The accused says that she saw X and his friend Y climb onto a picnic table, she speaks of an argument between the children over toys, and she recalls that X lost a shoe when playing outdoors, but nothing more.

According to the accused, none of these incidents could have caused X’s fracture. [ 52 ] In fact, this is what led the accused to say that the she cannot rule out that the fracture may have been caused before or after, because she did not see anything, although the evidence tends to show that the fracture occurred at the daycare centre. [ 53 ] Does this mean that the accused is not telling the truth because she raises the possibility that the fracture occurred before or after? I do not believe so.

This statement is rather based on the fact that the accused did not witness any event that could have caused this fracture. If she had really wanted to hide or truncate the truth, it would have been easy for the accused to say that X had fallen or had been pushed by another child; the accused, however, has always maintained that nothing happened, at least to her knowledge. [ 54 ] The accused has worked in the childcare field for 17 years without any complaints ever having been made against her; five parents testified that they were satisfied with the daycare services she provided for their children.

The accused seemed to enjoy a good reputation. [ 55 ] In fact, the accused’s reaction, as reported by Y’s mother, when informed about X’s fracture, reveals how she felt. The accused seemed shocked and could not understand how it had happened; she seemed sad. [ 56 ] The accused testified that it was only when X woke up from his nap, at around 3:05 p.m. or 3:10 p.m., that she noticed that the toes of his foot were pointing downwards. The Court cannot dismiss this statement. [ 57 ] The accused’s conduct after she made this observation seems reasonable.

When she changed X’s diaper, she examined X and did not notice anything abnormal. The accused thought that X had pins and needles in his leg, that his leg had fallen asleep following his nap.

She sat X down for his snack at around 3:25 p.m., and his mother arrived about 15 minutes later. [ 58 ] When testifying, the accused regularly referred to the routine she had established; however, it is reasonable that she recalls certain details about X’s conduct at the daycare centre because he was a newcomer and had attended the daycare centre for only one and a half days. [ 59 ] It may seem normal, however, not to recall every detail, including whether or not X was limping after his nap when he walked five or six steps for his diaper change.

Although the accused mentioned to the investigator that X had difficulty walking, she says that she does not remember now whether or not X was limping. [ 60 ] The accused’s testimony as a whole seems credible. It is not impossible that an incident, such as a fall or a push, could have occurred without her knowledge. We must not forget that X lost a shoe outside and that the accused saw him climb onto a picnic table with his friend Y. In fact, Dr.

McKennen states that the type of injury in question is often caused by a fall. [5] [ 61 ] The situation described by the accused, who thought that X’s leg had fallen asleep, happens to children from time to time, according to the accused. This situation does not give rise to a duty to notify the parents and even less to a duty to seek medical assistance. We also have to consider the relatively short period of time that elapsed between the time when the accused made this observation and the time when he left with his mother, that is, about 20 minutes. As the Court of Appeal for Ontario said in R. v.

S.J. , concerning

section 215 of the Criminal Code , “ a parent is not required to run to a doctor or hospital whenever illness or the prospect of injury arises ”. [ 62 ] If X’s leg numbness had been noticed earlier, and if the accused had not reacted, the situation could have been different. [ 63 ] With the evidence accepted by the Court, we cannot conclude that the accused’s conduct constitutes a marked departure from what the conduct of a reasonable person placed in the accused’s position would have been. [ 64 ] The Court therefore concludes that the circumstances as a whole do not constitute, at least beyond a reasonable doubt, a failure to perform the duty described in

section 215 of the Criminal Code . [ 65 ] Consequently, the accused is acquitted of both charges. __________________________________ CAROL RICHER, J.C.Q. Mtre Caroline Lafleur For the prosecution Mtre Jacklin Turcot For the accused

Hearing dates: November 25, 2015 and January 13, 2016