R. v. D.W., 2018 ONCJ 591

CITATION: R. v. D.W. , 2018 ONCJ 591 DATE: April 9, 2018 Information Number: 17-2187 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. D.W. R E A S O N S F O R J U D G M E N T DELIVERED BY THE HONOURABLE JUSTICE S.N. LATIMER on April 9, 2018 at KITCHENER, Ontario

Section 486.4(2.1) Criminal Code publication ban

APPEARANCES: C. Jennison Counsel for the Provincial Crown H. Mattson Counsel for D.W. MONDAY, APRIL 9, 2018 - R E A S O N S F O R J U D G M E N T – LATIMER, J. (Orally): Introduction: D.W. is charged that on March 7, 2017, he assaulted his daughter, M., by spanking her excessively in a manner that would be deemed unreasonable by

Section 43 of the Criminal Code . On the basis of the evidence adduced the defence acknowledged the key issue is the identity of M.’s assailant. The Crown theory is that the relevant application of force occurred in the morning on March 7 th during a time when the defendant had the exclusive opportunity to commit the offence. I should say at the outset there is a strong temptation in a case of this kind to approach the evidence in an inquiry-like format to ask “who is most likely to have committed this offence”.

Despite this temptation, I expressly remind myself that the criminal burden of proof requires me to ask a different question - has the Crown proven beyond a reasonable doubt that D.W. committed the offence of assault. Facts: M.W., a five-year old girl, was brought to McMaster Children’s Hospital on March 7, 2017, as a result of a joint CAS police investigation that had begun earlier in the day. They arrived at the hospital at 6:47 p.m. and were seen approximately one hour later. M. was brought by her parents, D. and K.W. Dr. John Burke Baird is a doctor on staff at the Children’s Hospital.

His specialization is pediatrics and, in particular, child maltreatment. He was qualified on consent in this case to give opinion evidence in both areas before me. During his testimony, Dr. Baird adopted a prior report that is an exhibit that he had written discussing his various findings in relation to M. What is presently relevant are his observations of obvious and severe bruising to her buttocks. Dr. Baird testified generally about how bruising occurs in the human body. Our bodies have the capacity to absorb a certain amount of force without internal or external injury.

The amount of that force depends on the part of the body to which force is being applied and the relative fleshiness of the contact point. Bruising occurs when the force exceeds what the particular part of the body can bear and as a result localized damage is caused to nearby blood vessels. This causes blood to leak into the surrounding tissue causing a chemical breakdown that results in the discolouration we commonly associate with bruising.

It is not medically possible to age a bruise on the basis of an external examination as bruises of a similar age can look quite different, and bruises of different ages can look quite similar. A bruise can be externally visible for up to a period of weeks. Dr. Baird could not put a date to the injuries to M.’s buttocks but did agree that it could have been caused on the morning of March 7 th between 9:30 and 12:30 p.m. Dr. Baird’s testimony discussed bruises generally and the types of bruises that would cause him concern regarding assaultive applications of force or other types of maltreatment.

While bruising is a normal part of childhood, patterned or shaped bruising is not, and is often

indicative of intentionally inflicted injuries. The presence of some medical conditions like a blood clotting disorder could account for the bruising but such disorders were ruled out in M.’s case. Moving to M.’s bruising, specifically, there is obvious injury to her buttocks area as depicted in exhibits 3 A through C. Dr. Baird explained that the buttocks are highly effective at absorbing and dissipating impact energy because of the nature of human anatomy. With that in mind, to cause the level of injury M. suffered would have required multiple impacts of great velocity.

The curvilinear lines on the bruising are strikingly similar to other injuries Dr. Baird has observed during his career that were caused by an adult hand. There is an “immediately recognizable pattern”. In Dr. Baird’s view, “the only reasonable conclusion for M.’s buttocks bruising is multiple, highly forceful impacts, most likely by an adult hand”. The amount of force required would surely have caused M. to be crying and upset. No medication was prescribed and the injury healed on its own. K.W. is M.’s mother. In 2017 she and the defendant cared for their four young children, all girls, aged seven and younger.

It was a busy household, with the four young children and two working parents. In February 2017, Ms. W. was transitioning from schooling as a paralegal to an internship that was part of her educational plan. That internship began the day after Family Day of 2017. Ms. W. described the various moving parts of their household - the shared childcare responsibilities that she and Mr. W. navigated each day to ensure that the children were cared for, brought and picked up from school and that both parents were able to make it to their respective jobs and schooling.

Like many parents of young children their days and, in particular, their mornings, were very busy. Ms. W. described her four girls, in particular M., the subject of the present inquiry. M. historically exhibited certain behavioural episodes beginning at age two commonly referred to as “fits”. Both parents had a particular approach to these “fits” that would involve letting M. get out her frustrations while ensuring that she was safe during her tantrums. They would also take shifts - if one parent was getting frustrated the other would take over.

Most parents would recognize this as a good and sensible approach to childrearing. Ms. W. testified that the defendant was actively involved in these aspects of parenting their young girls. Ms. W. described the family routine, both before and after she started her internship, which required a deviation from their normal routine. She would have to be at the office between 8:30 a.m. and 3:00 p.m. and sometimes as late as 5:00 p.m. Originally, Ms. W. would drive the family vehicle to her work and then drive to the school in the afternoon, where Mr. W. would be waiting with the young children.

The school aged girls would be picked up and Ms. W. would walk them home while Mr. W. took the vehicle to his work, which would run late into the evening. Ms. W. would be responsible for getting the children fed, cleaned and into bed by their bedtime. The change to this routine occurred once the parents realized how expensive parking was at the location of the internship. This caused them to adjust their routine and Mr. W. began dropping Ms. W. off in the morning and keeping the vehicle. This involved getting the children ready earlier and loading them up into the vehicle, dropping Ms.

W. off and then the defendant would eventually bring the children to school. This change in routine started on March 6 th . Ms. W. described the family activities beginning Friday, March 3 rd . At virtually all times leading up to March 7 th either she or the defendant were with the children. They were not young enough to leave on their own or have the oldest, Ma., watch a younger child. Ma.’s seventh birthday party was on the Saturday. Of particular note, the children were bathed several times a week on a particular schedule. That

schedule included Sunday and Monday nights. This means that Ms. W. was ideally situated to testify that M. had no injuries on her buttocks on either Sunday or Monday night. I note that there is no suggestion in this case by either party that she is anything other than reliable and credible. I was impressed by her evidence in this case. On Tuesday, March 7 th , M.’s class was going on a field trip to see the performers Splash’N Boots. This, understandably, excited M. and led to a relatively sleeplessness night for her on Monday evening going into Tuesday morning. Ms.

W. testified that M. woke up a number of times with a “is it morning yet” kind of attitude and had to be put back to bed each time. On one occasion at 5:00 a.m. Mr. W. was the one to get up and put M. back to sleep until the appropriate time. The morning itself was chaotic. There were other things that had to happen. Ms. W. helped M. with her hair. They left the house to drop her off at work around 8:00 a.m. There was some traffic and they stopped at Tim Hortons. She got out at her internship, gave the defendant a kiss and he drove away with the girls. The plan had been for Mr.

W. to pick the girls up early from school as there were

errands that had to be run in the afternoon. Later that day, Ms. W. got a Facebook message from her husband. There was an issue at school. Children’s Aid Society and the police were present, investigating something relating to a fit that M. had had. Mr. W., apparently, texted his wife or messaged his wife, something about a fit she had in the morning and how had “calmly” told her she would not go on the field trip if she continued acting in this way. This was the first that Ms. W. had heard of any issue from the morning. Ms. W. called Mr. W. immediately in an understandably upset and emotional state.

He was at the school with the investigating agents and it was arranged that both parents would take M. to McMaster Children’s Hospital that night. The other girls were left with Ms. W.’s mother. Ms. W. described her reaction to first seeing M.’s bruising. She was shocked. She said it seemed so unreal. Her face dropped and she looked immediately at Mr. W., telling him to get out of the room. She recalled no visible, verbal or facial expression on his face. She said it looked like he had just shut down completely. The CAS officials were also in the room at the time and one followed Mr. W. out. Ms.

W. had never seen bruising like that before. She spoke about prior discussions both she and Mr. W. had had regarding their opposition to spanking. She described it as a “hypocritical” use of violence. Both she and Mr. W. had been spanked often with objects during their youth and they had discussed and agreed not to do so with their own children. Ms. W. had never seen her husband spank any of the children. He had in the past raised his voice and yelled at M. when she was having a tantrum or otherwise acting out emotionally. On one prior occasion he covered her mouth while she was yelling and Ms.

W. chastised him that it was not appropriate and he stopped. He never did such

an act again. Ms. W. was aware that the field trip on March 7 th involved a bus trip, presumably involving a bus driver, parent chaperones, as well as, likely, teachers. I also received an agreed statement of facts from the parties as follows: There was a complaint made by M. (not about the spanking) in the morning as she arrived at school before the trip, she was allowed to go on the trip, CAS became involved while she was off on the trip, the investigation into the complaint was received by police at 12:31 p.m. to come and assist the investigation. Trip was already completed by that point.

Finally, the Crown led the defendant’s post arrest statement taken on March 9, 2017, as part of its own case. The defence agreed the statement was voluntary and admissible. We watched it in court on Friday and I was provided with a transcript. While it is not my intention to review the entirety of the statement in these reasons, I can advise that I have reviewed it multiple times both in and out of court. It is properly considered to be an exculpatory statement. Mr. W., throughout, denies committing the act alleged.

These denials continue in response to police techniques that, to us in the criminal justice system, are readily identifiable. He was consistently asked who else could have been the assailant and whether he could identify someone else as being responsible. He was given the opportunity to make a more limited form of admission such that he had spanked M. but out of frustration only.

The various allegations and evidence against him were presented by the officer and he was asked for an explanation for things the children had said. (I note that both parties agreed the hearsay statements of the children referred to by the officer are not admissible in this trial.) Mr. W. was never able to offer the police an explanation. Many of his responses, as Ms. Jennison pointed out, were not particularly logical or coherent, such as the litter box reference or the part at the end about events in the United Kingdom. Other parts, like the portion where he discussed with Cst.

Perrin why he and his wife did not practice spanking as a corrective punishment, are corroborated by Ms. W.’ evidence. The presumption of innocence and the burden of proof: Mr. W. is presumed innocent. The Crown bears the burden of displacing that presumption with proof beyond a reasonable doubt that he committed a criminal offence. The defendant can only be found guilty if I am satisfied to this exacting standard with regard to all of the

essential elements of the crime of assault. In this trial Mr. W. has chosen not to testify, as is his right. As Justice Bora Laskin (as he thenwas) said in R. v. Appleby, (SCC), [1972] SCR 303, 3 CCC (2d) 354 at page 365: The presumption of innocence gives anaccused the initial benefit of a right to silence and the ultimate benefit (after the Crown’s evidence is in and as well any evidencetendered on behalf of the accused) of any reasonable doubt. Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that applies in all criminal trials.

A reasonabledoubt is one based on reason and common sense, and logically derived from the evidence or the absence of evidence. (See R. v. Lifchus, (SCC), [1997] 3 SCR 320, 1118 CCC (3d)1 and R. v. Sanichar, 2012 ONCA 117, 280 CCC (3d) 500 at paragraph 46. The Crown’s theory in this case - that Mr. W. had committed the act that caused M.’s bruising - involved circumstantial reasoning. TheSupreme Court of Canada recently reviewed circumstantial reasoning in R. v. Villaroman, 2016 SCC 33 , [2016] SCC No. 33,338 CCC (3d) 1. I have found helpful the

summary of that judgment found in R. v. Gill, 2017 ONSC 3558, a decision of Justice MichalFairburn, at the time sitting on the Superior Court of Justice. While I will not review the entire judgment, I note in particular paragraphsnine through 13 where Justice Fairburn expertly reviews the principal points in Villaroman. The Crown’s case in the present case also includes the defendant’s videotaped statement, which consists entirely of exculpatoryevidence. At no

part in the statement is there an admission, or anything that can reasonable be considered to be an admission of criminalactivity. The one portion, I believe at page 57, where Mr. W. says “yes or no, I don’t know” to a suggestion by Cst. Perrin that theassault occurred in the house, is not in context capable of being considered an admission of anything. I did not understand Ms. Jennisonto really suggest otherwise.

As I understood the Crown’s submissions, I should reject the defendant’s utterances on video and I should be left with a suspicionregarding his answers, and the improbability of some of those answers, that could then colour or influence my broader findings withregard to the remainder of the circumstantial evidence. In my view this argument uncomfortably approaches the prohibited reasoningidentified in R. v. O’Connor, (2002) (ON CA), 170 CCC (3d) 365 (Ont. C.A.) Associate Chief Justice O’Connor,speaking for the court in R. v.

O’Connor, highlighted in that decision the distinction between rejected defence evidence and defenceevidence found to have been deliberately fabricated or concocted. He said, importantly: “The former has no evidentiary value; the lattercan constitute evidence from which an inference of guilty may be drawn.” (See paragraph 17 through 19 of the judgment.) More recently, the Court of Appeal returned to this issue in R. v. Wright, 2017 ONCA 560, 354 CCC (3d) 377, a case involving, as here,the admission of an exculpatory statement as part of the Crown’s case.

The Crown alleged a circumstantial theory of possession againsta truck driver found with a considerable amount of marijuana in the reefer unit of his trailer. His fingerprint on the unit was the keypiece of evidence against him. He denied in a post-arrest statement touching the unit. His exculpatory statement was led as part of theCrown’s case. A judge of my court referred to her rejection of that statement as part of the circumstantial evidence against Mr. Wright. He was convicted but successfully appealed to the Court of Appeal.

Justice Simmons, speaking for the court, said as follows at paragraphs 38 and 39 under the heading, “the O’Connor issue”: It is well established that our law distinguishes between an exculpatory statement which is disbelieved and one that is found to have beenfabricated or concocted to avoid culpability.

A statement which is merely disbelieved is not evidence that strengthens the Crown’s case.However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated orconcocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt: O’Connor; R.v. B.(P.), 2015 ONCA 738.

The distinction between mere disbelief and a finding of fabrication is based on the fundamental principle that the onus of proof remainson the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof where statementsfrom an accused are tendered, or the accused testifies. Justice Simmons then referred to the passages in O’Connor that I earlier noted. Analysis: On the present facts, rejection of the defendant’s statements to Cst. Perrin cannot strengthen the Crown’s case against him. The Crown

has not suggested there is any fabrication or concoction present that would allow such reasoning. Further, the Crown tendering thestatement requires me to self-instruct regarding the principles from R. v. W.(D.), as exculpatory evidence has been adduced in the trialbefore me. Even if I do not believe Mr. W.’s denials to the officer, they can still be the source of reasonable doubt, either on their own orwhen taken with the evidence as a whole. (See, for example, R. v. Phillips, [2017] ONCA 752, 335 CCC (3d) paragraphs 257 through258.

With regard to the defendant’s denials contained in the police statement, I acknowledge and to a degree agree with Crown counsel thatthe defendant’s illogical references to the litter box and the events in the U.K., during a discussion about whether injuries to his five-yearold daughter’s buttocks are a result of spanking or some other application of force do not make a great deal of sense. They do not helpme place particular weight on the defendant’s utterances.

However, there are other aspects of the statement I am obligated to consider. 1) I accept that speaking to a professional police officer during a criminal investigation where one is a suspect is a stressful experience. An individual cannot be held to too high a standard with regard to the irrelevant or unusual comments that they may make underquestioning. 2) There are aspects of the statement that are corroborated by Ms. W., whose evidence I accept without reservation. She and thedefendant spoke about spanking previously. They are both against it for personal reasons.

The consistency between their narratives withregard to this point enhances the defendant’s credibility. 3) The defendant’s statement that he has never physically corrected children is also corroborated by Ms. W. 4) The defendant noted at page 47 of the statement that when he gets stressed or pushed during parenting he leaves the room. This isagain consistent with what Ms. W. stated in her evidence regarding their parenting strategy. 5) I note the Reid-like techniques employed by the officer during the interview process.

While I entirely accept they were employedproperly in the context of a police interrogation, the fact that the defendant was to a degree tested during his exchange with the officer isrelevant to an assessment of his evidence. Having considered the statement in its entirety, as well as in context with the remainder of the evidence, while there are aspects of it I donot entirely accept, I cannot reject the defendant’s denials out-of-hand. I do not. The statement in the context of the evidence as a wholecreates doubt in my mind regarding Mr.

W.’s role in his daughter’s injuries that the remaining circumstantial evidence cannot remove. For the sake of completeness, I would say the following about the evidence I have received: 1) I accept the Crown has established that the application of force that caused the bruising occurred sometime after bath time on March6, 2017. The medical evidence and my own common sense assist me in concluding that these injuries, as depicted in the photographicexhibits, would not have laid dormant for a time before being externally visible.

I do not require recourse to judicial notice to make sucha determination on the facts of this case. (See R. v. Wright,

(2016) ONCA 546, paragraph 20.) 2) This finding narrows the field of potential suspects considerably. Ms. W. is removed from consideration. What remains is the defendant and an unknown individual who could have interacted with M. on March 7th, either at the school or during the field trip itself. While I am sympathetic and to some level agree with the Crown’s submission that Mr. W. is the only real viable suspect, I do not believesuch a conclusion is free from doubt when I have been exposed to Mr.

W.’s denial and cannot entirely reject it. 3) The Crown properly and professionally refrained from placing any reliance on Mr. W.’s physical and emotional reaction, or lackthereof, when M.’s injuries were first revealed at the hospital. Such evidence is fraught with danger because of the ambiguity ofteninherent. (See Justice Rosenberg’s comments in R. v.

Levert, (2001) (ON CA), 159 CCC (3d) 71, paragraphs 24through 28.) 4) The Crown’s theory of identification relies on motive-like evidence arising from M.’s agitated state on March 7th as a result of thefield trip and the new morning routine that involved dropping Ms. W. off at her internship. But M. being in an agitated state was nothingunusual in this household. I have evidence before me that in past circumstances where she threw a fit or a tantrum, Mr. W. almost

always dealt with her in a proper, non-violent manner. His past experience with M.’s “fits” attenuates the force of the Crown’s motive theory. At bottom, I am left with significant bruising on a young child that was likely caused by some form of excessive disciplinary action. There is no direct evidence that the defendant committed these acts. The circumstantial evidence points distinctly in his direction, giving the paucity of other likely suspects and his proximity to M. during a stressful morning.

But I remind myself of Justice Cromwell’s cautions in Villaroman with regard to circumstantial reasoning. • A “theory alternative to guilt” is not “speculative” simply because there is no affirmative evidence supporting the theory. A “theory alternative to guilt” can arise from a lack of evidence. (See R. v.

Villaroman at paragraph 36 .) • Gaps in the evidence can result in inferences other than guilt but they must be reasonable, given the evidence and the absence of evidence assessed logically and in light of human experience and common sense. (See Villaroman , paragraphs 36 through 38.) • Further, I have received an exculpatory statement I cannot entirely reject. For all of these reasons, while I certainly agree the defendant is most likely to have caused the injuries the presumption of innocence has not been rebutted by the prosecution in this case. Disposition: D.W. is found not guilty of assault. **********