R. v. Flett, 2023 MBPC 55

CITATION: R. v. Flett, 2023 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) S. Sivarouban ) ) S. Thiessen for the Crown- and – ) ) ) Alayna Flett ) ) J. Kostiuk for the Accused ) ) Judgment delivered: ) November 24, 2023 CAWLEY, P.J. INTRODUCTION [1] Alayna Flett (Flett) stands charged with failing to provide the necessaries of life to Abel Leveque-Flett (Abel), her three-year-old cousin, who was allegedly in her care during the summer of 2018.

On August 23, 2018, Flett’s boyfriend, Houston Bushie (Bushie),called the Little Grand Rapids nursing station for medical assistance, reporting that Abel was having a seizure. Abel was transported tothe nursing station where he was observed to be unresponsive and suffering from numerous injuries all over his body. Despiteresuscitation attempts, Abel was pronounced deceased within minutes of his arrival. THE LAW [2] The Crown has the onus to prove beyond a reasonable doubt either of the two offences contained in section 215(2)(a)(

i) or (ii)of the Criminal Code. Specifically, the Crown must prove: 1. Flett had a legal duty as guardian to provide the necessaries of life to Abel, a child under the age of sixteen; 2.

Flett failed to perform that duty; • In failing to perform that duty, Flett showed a marked departure from the conduct of a reasonably prudent parent in the samecircumstances; and • Concerning s. 215(2)(a)(i), it was objectively foreseeable that Abel was destitute or in necessitous circumstances and Flett’s failureto act created a risk of harm as a consequence (R v C.O., 2022 ONCA 103 at paras 41 and 64); or, • Concerning s. 215(2)(a)(ii), it was objectively foreseeable that Flett’s failure to act endangered Abel’s life, or caused, or was likelyto cause Abel’s health to be endangered permanently (R v Williams, 2020 MBCA 72 at para 18, and R v Naglik, (SCC),[1993] 3 SCR 122 at 143-44).

SUMMARY OF THE EVIDENCE [3] At the time of his death, Abel was a three-year-old boy who lived in the community of Little Grand Rapids, Manitoba. Despitehis age, Abel could not walk or talk. He had many medical issues including epilepsy, a congenital brain malformation and globaldevelopmental delay. Abel was a participant in the Jordan’s Principle Program, a program aimed at ensuring Indigenous children receivethe medical and social support they require.

Throughout his short life, Abel saw numerous specialists about his medical issues, hislimited mobility and speech. [4] On May 23, 2018, the community of Little Grand Rapids was evacuated to Winnipeg due to wildfires. At the time, Abel wasliving with his paternal grandmother (the grandmother) as Child and Family Services (CFS) had determined his parents were unable tocare for him. [5] The Court heard from an employee of CFS, Chelsea Little (Little), who worked in the community and was aware of Abel’s

living situation. Little testified that an issue later arose with respect to the grandmother’s ability to care for Abel so the family reached a private agreement concerning his care, to avoid his apprehension by CFS. Little was with Abel’s mother at the Duckworth Centre in Winnipeg on June 16, 2018. It was her understanding, at that time, Abel’s mother arranged for Flett and Bushie to assume responsibility for Abel’s care. The family returned to the community of Little Grand Rapids in late June. [ 6 ] After the family returned to the community, Little believed Abel was living with Flett and Bushie.

Little testified she helped facilitate visits with Abel’s parents on five occasions, between late June and July 20, 2018, driving Abel back and forth from Flett’s home to his parents’ home. On July 18, 2018, Little observed Abel had a mark or bump on his forehead and two black eyes. She asked Flett what caused the injuries. Flett told her that Abel had grabbed the handlebars of his crib and banged his forehead against it. [ 7 ] Little testified she thought Flett’s explanation was believable. She instructed Flett to document any future injuries and to include an explanation of how the injury occurred.

Little also told Flett to take Abel to the nursing station if he required medical care. The last time Little saw Abel was on July 20, 2018. With the exception of a five-day period, Little was away from the community between July 27 and August 22, 2018. [ 8 ] The Court heard evidence from other community members who interacted with Abel in the months leading up to his death. Flett’s brother, Alex Flett (Alex), testified about his observations while babysitting Abel at his sister’s home, two weeks before he died. Alex was fourteen years of age at the time and lived next door.

Alex testified he observed Abel had bruising around his eye (a black eye). Flett and Bushie told Alex the black eye was caused by Abel falling against his crib. Alex also noticed Abel had a “rash” on his neck, lip and groin. Alex could not remember the precise details about the location of the rash on the lip or neck, but he remembered the rash on Abel’s groin was on his “private area”, which he noticed when changing Abel’s diaper. [ 9 ] Alex described the groin injury as red with some missing skin. In his words, it “looked bad”. Alex asked his sister what caused the groin injury and she told him it was a rash.

Flett and Bushie also told Alex they would take care of it. Initially, Alex testified he observed both Flett and Bushie apply cream to Abel’s groin but later in his testimony he presented as unsure if his sister participated. [ 10 ] In cross-examination, Alex agreed with most of the suggestions made by defence counsel. He agreed Flett was away from home for extended periods of time for work in the summer of 2018. He agreed, for the most part, Bushie was responsible for Abel’s care.

He agreed that, in addition to staying with Flett and Bushie, Abel would “float” from house to house, spending time with his parents and grandmother. He agreed he continued to see Abel regularly after he babysat him and Abel continued to present as a “happy” child. [ 11 ] Jobeth Leveque (Leveque) testified about her work with the Jordan`s Principle Program and her interactions with Abel. Leveque knew Abel from the community. She testified she saw him in April 2018, when he was in the grandmother’s care. Abel was happy and playful at the time and did not present with any visible injuries.

Leveque testified that Abel had several specialist appointments on August 22, 2018, through the Jordan’s Principle Program, so Leveque was sent to Flett’s home to pick Abel up. Leveque testified she went to Flett’s home several times during the day, knocking on the door and honking her horn, but no one answered. Leveque called Flett but there was no answer. Leveque went next door where Flett’s other family members lived and to Abel’s parent’s home, but he was not at either location.

Abel missed his appointments on August 22, 2018. [ 12 ] Naomi Moar (Moar) testified about her role as a medical driver in the community of Little Grand Rapids. She testified she often drove Abel to his appointments but she had not seen him for at least two weeks prior to his death. Moar testified she was dispatched to Flett’s home on August 23, 2018, as a result of a medical distress call for Abel. Moar described her observations when she arrived at Flett’s home. Flett and Bushie were both outside.

Flett carried Abel’s limp body into Moar’s vehicle and they drove to the nursing station, arriving within minutes. [ 13 ] Kelly McClumpha (McClumpha) was one of the nurses on call at the nursing station. She testified when Abel arrived he was not breathing and he did not have a pulse. McClumpha testified about the significant injuries she observed. She noted Abel’s head was soft to the touch. He had bruising to several areas of his face including his eyes, temple, cheek and jaw. He had broken blood vessels in his left eye and blood behind his eardrum. His lips were macerated and abraded.

He had wounds inside his mouth. He presented with significant injuries to his neck, including a deep abrasion with an area of missing skin. Abel also had a large red and raw wound to his groin. The majority of Abel’s groin area was missing the top layer of skin. Abel was pronounced deceased four minutes after he arrived at the nursing station. [ 14 ] McClumpha identified the medical records from the nursing station which document Abel’s condition on arrival, as well as his history of attendance for medical care.

Prior to August 23, 2018, Abel’s last attendance at the nursing station was on May 16, 2018 for blood work. McClumpha was working that day and saw Abel with the grandmother. McClumpha did not notice any injuries. McClumpha testified Abel’s appearance on August 23, 2018, was “night and day” from May 16, 2018. [ 15 ] Dr. Taylor, a forensic pathologist, performed the autopsy on Abel and documented seventy-five external injuries and five internal injuries to his body. Dr. Taylor testified it was “quite obvious” Abel had multiple areas of contusion to his head based on his initial observation.

Further examination revealed two significant injuries to Abel’s scalp, a posterior scalp hematoma and a subgaleal hemorrhage. [ 16 ] Dr. Taylor noted there were several unusual lesions on Abel’s neck, lower abdomen and groin region where the top layer of skin was missing. The groin injury stood out as it was obvious there was full loss of the top layer of skin (epidermis), including to portions of the penis and scrotum, and in some areas there was loss of the dermis (the layer of skin beneath the epidermis). Dr. Taylor testified these injuries were significant and quite unusual.

He could not say what caused them. [ 17 ] Upon further examination, Dr. Taylor discovered that Abel also had seven bone fractures. Abel had three arm fractures, two in his left forearm and one near his left elbow, and four fractured ribs. [ 18 ] Dr. Taylor concluded that the fractures were caused in two separate incidents given the degree of healing observed. In his opinion, the four rib fractures occurred at the same time and were more than seven days old, whereas the arm fractures were less than seven days old. Dr.

Taylor testified he sought a second opinion to confirm his conclusions related to the bone fractures.

[ 19 ] As for the age of the other injuries, Dr. Taylor opined the groin injury was between one to several weeks old. Abel’s mouth injuries appeared long standing. The facial bruising was between 18 hours to days old, and the scalp injuries were both acute and chronic, meaning old (more than a day) and new (less than one day). [ 20 ] Ultimately, Dr. Taylor could not determine the cause of Abel’s death. He explained seizures are complex in that they do not cause injury or changes to the body unless a person injures oneself while seizing.

He testified a seizure was a potential cause of Abel’s death given his medical history, however, Dr. Taylor was not comfortable providing a definitive anatomic cause given the context of the extensive injuries. Dr. Taylor explained different conditions, such as lack of sleep, illness or injury, may worsen or cause the onset of a seizure. He testified it is possible for an inflicted injury to contribute to the development of a seizure, which then causes death. Given the complexities, Dr. Taylor categorized the cause of Abel’s death as undetermined. [ 21 ] Dr.

El Demellawy, an expert in pediatric bone pathology, analyzed Abel’s bone tissue, as requested by Dr. Taylor, and confirmed his findings. She opined the bone fractures to Abel’s ribs and arms were caused from two separate incidents, possibly three, given the observable stages of healing. In her opinion, the rib fractures occurred eight to nineteen days prior to death, whereas the arm fractures were in the range of three to six and four to seven days old. Like Dr. Taylor, she noted no evidence of disease that would increase Abel’s risk of fracture. [ 22 ] Dr.

Cooney, an expert in child maltreatment, testified in her opinion several of Abel’s injuries were inflicted injuries, meaning non-accidental injuries caused by externally generated trauma or force. She was asked to interpret Abel’s growth charts and confirmed they showed a substantial and unusual weight loss between May 2018 and August 23, 2018. Dr. Cooney testified, given the nature and totality of Abel’s injuries, he presented as a child who suffered maltreatment. [ 23 ] Flett did not testify or call evidence in her defence.

POSITION OF THE PARTIES [ 24 ] The Crown’s position is that Flett had a legal duty to care for Abel as she was one of his guardians from June 16, 2018 until his death. The Crown argues Flett failed to provide the necessaries of life to Abel in two ways: by failing to seek medical treatment for his injuries, and by failing to protect him from the physical abuse he was suffering. The Crown argues Flett’s failure to act, in the face of severe visible injuries, was a marked departure from the requisite standard of care.

They argue her inaction provides two avenues to conviction because Abel was a child in necessitous circumstances and Flett’s failure to act endangered his life or was likely to cause his health to be endangered permanently. [ 25 ] Defence argues the evidence is insufficient to prove Flett was Abel’s guardian or that she was even aware of his condition. Defence highlights that other family members had contact with Abel in 2018 and Flett was often away from home for work. While defence concedes that Abel was in need of medical treatment, he argues the Crown has failed to prove he did not receive medical care.

Defence also argues the Crown has not proven that Abel was an abused child given the equivocal opinion of Dr. Cooney, which suggests she only suspected abuse as a reasonable possibility. With respect to the evidence of Dr. El Demellawy, defence raises a continuity issue and argues the Crown has not proven the samples she analyzed were, in fact, samples of Abel’s bone tissue. ANALYSIS Did Flett have a legal duty to provide the necessaries of life to Abel? [ 26 ] Section 215(1) (

a) of the Criminal Code imposes a legal duty on a parent, foster parent, guardian or head of a family to provide the necessaries of life for a child under sixteen years of age. “Guardian” is defined in

section 214 of the Criminal Code as a person who has in law or in fact the custody or control of a child. [ 27 ] According to Little, there was no formal apprehension or placement of Abel by CFS. It was Little’s understanding that the family reached an agreement that Flett and Bushie would assume responsibility for Abel’s care as of June 16, 2018, but Little did not witness the discussion herself.

Little did, however, witness Abel’s mother provide his personal belongings and medication to Flett and Bushie on June 16, 2018, while they were all gathered at the Duckworth Centre in Winnipeg. [ 28 ] While Little conceded in cross-examination that she did not have firsthand knowledge of where Abel was living when he returned to Little Grand Rapids, she testified, between late June and July 20, 2018, she drove Abel back and forth from Flett’s home to his parents’ home, for visits on five occasions. [ 29 ] As stated, on July 18, 2018, Flett and Little spoke about the cause of Abel’s injured forehead and his two black eyes.

As I understood from Little’s evidence, Flett participated in the conversation as if she was Abel’s guardian. Flett explained how Abel’s injuries were caused.

She was then instructed by Little to document any future injuries and to take Abel for treatment if he required it. [ 30 ] The nursing station records indicate the next day, on July 19, 2018, a person named “Alayna” called the nursing station to advise she needed more medication for Abel as she gave him the last dose that morning. “Alayna” told the nursing staff about an issue concerning Abel’s mother and confirmed she (Alayna) was now caring for Abel per “CFS”. This record is admissible for its truth as a business record exception to the hearsay rule.

I infer “Alayna” is Flett based on the evidence as a whole including the fact Alayna is Flett’s first name and Little, the CFS worker, provided instructions to her about Abel’s care the day before. [ 31 ] Defence argues the evidence suggests Abel stayed with different family members during the summer of 2018. In support of their position defence highlights Alex’s evidence and the concession by Levesque that Abel’s family shared responsibility for his medical appointments. [ 32 ] Leveque’s evidence about the family sharing responsibility for Abel’s appointments was very limited.

Leveque conceded when Abel first started with the Jordan’s Principle Program his parents took him to his appointments but I understood that evidence related to a time frame predating the summer of 2018.

[ 33 ] As for Alex’s concession that Abel rotated households in the summer of 2018, I do not find that evidence credible as it is inconsistent with his evidence in direct-examination. I found many of Alex’s concessions in cross-examination unbelievable given the passage of time and his highly agreeable demeanour. Alex confirmed in direct-examination he did not want to testify for the Crown and he continues to support his sister. He presented as motivated to agree with defence’s suggestions whether he would have been in a position to know the information or not.

For example, Alex agreed during cross-examination that Flett and Bushie obtained the cream for Abel’s groin injury from the nursing station but in re-examination he admitted he only assumed that. Assessing the record as a whole, I do not believe Abel stayed with other family members at the relevant time. [ 34 ] I have considered Alex’s evidence carefully appreciating he was fourteen years of age in 2018 and five years have passed since his initial observations.

Despite the passage of time, I accept Alex’s evidence in direct-examination about Abel’s living arrangement in the summer of 2018, his observations while babysitting and the conversation he had with his sister about the groin injury because it is credible and reliable when assessed in context. Alex lived next door to his sister so he would be aware of who lived with her. His evidence is also consistent with the medical evidence and Little’s evidence relating to how Flett conducted herself as Abel’s caregiver. [ 35 ] Alex had a specific memory of babysitting Abel two weeks before he died.

While Alex presented as unsophisticated, he was able to detail Abel’s condition. He characterized the neck, lip and groin injury as a “rash”. He testified the groin injury was red with missing skin. While I recognize there were some minor inconsistencies between Alex’s observations and the presentation of Abel’s lip, neck and groin injuries on August 23, 2018, overall, I found Alex’s description of the nature and location of the injuries substantially similar to what was observed the day Abel died.

Based on the close proximity in time and the consistency between Alex’s evidence and the medical evidence, I find these injuries are one and the same. [ 36 ] Defence did not challenge Alex about the timing or nature of his observations when he babysat Abel. Defence also did not challenge Alex about his assertion that he spoke to Flett about Abel’s groin injury and he was told they (Flett and Bushie) would take care of it.

Alex’s evidence on this point, which I accept, demonstrates Flett was both aware of and assumed joint responsibility for the treatment of Abel’s groin injury which is compelling evidence relevant to the issue of guardianship. [ 37 ] Moar also testified that Abel lived with Flett and Bushie at the relevant time. She testified she knew this because she regularly attended to their home in the past to pick Abel up for his appointments but, for the reasons that follow, I do not find this evidence reliable.

It became apparent in cross-examination that Moar was unsure about when and with whom Abel attended medical appointments in the past. Moar’s initial testimony suggested Abel regularly attended appointments when he was in Flett’s care in the summer of 2018. However, later in cross-examination when asked if Flett or Irene Flett (Flett’s mother) brought Abel in for his appointments, Moar testified it was the grandmother, identifying her by name. As indicated previously, the grandmother cared for Abel during the spring of 2018. I find Moar is confused about the timeframe.

Additionally, her evidence that Abel attended medical appointments in the community that summer is inconsistent with the nursing station records. [ 38 ] I accept Moar’s evidence regarding August 23, 2018, when she drove to Flett’s home to pick up Abel in response to a medical distress call. This was a significant event that was memorable to Moar and her evidence is consistent with the nursing station records. Moar testified she saw Flett and Bushie holding Abel when she arrived at their home. Flett escorted Abel to the nursing station.

This evidence supports the inference that Abel was living with Flett at the time. [ 39 ] When the evidence is assessed as a whole, I am convinced beyond a reasonable doubt that Abel was living with Flett and she was his guardian, from June 16, 2018 to August 23, 2018. Abel was observed in Flett’s care at her home on multiple occasions. Flett conducted herself as if she was Abel’s guardian. She received, administered and ordered more medication. She was familiar with Abel’s injuries and provided explanations for how they occurred.

She received instructions from Little on what to do if Abel injured himself in the future. In my view, there is no other reasonable inference to draw other than to conclude Abel was in Flett’s custody and control. Flett had a legal duty to provide Abel with the necessaries of life. Did Flett fail to provide the necessaries of life to Abel? [ 40 ] Necessaries of life are those things integral to the health and safety of a child.

This includes the provision of food, shelter, medical care and protection from harm. [ 41 ] The Crown argues Flett failed to provide Abel with the medical care his injuries required, and she failed to protect him from the physical abuse he was suffering. Defence argues that Flett was not aware of Abel’s condition because she was often away for work and therefore she was not in a position to act. [ 42 ] Alex and Little both testified about their knowledge of Flett’s employment in the community in 2018.

As I understood Little’s evidence, Flett was a respite worker who provided child care for apprehended children through a private community agency. I accept Little’s evidence because she was familiar with Flett and the private agency but her evidence does not provide a basis to infer Flett’s work removed her from home for extended periods of time. Little was not asked if she knew Flett’s work schedule. [ 43 ] I appreciate Alex testified about his sister being away from home for extended periods of time for work but for the reasons previously stated, I did not find this evidence reliable.

Initially, Alex was unsure about what his sister did for work. I do not believe he is capable of accurately remembering her work schedule, an insignificant matter, from five years previous. [ 44 ] While I accept Flett was a working guardian in 2018, I find she would usually have daily contact with Abel (at the material time) because he lived with her. I am unable to infer Bushie assumed primary responsibility for Abel’s care given the evidence of Flett’s involvement. I appreciate Alex agreed with defence’s suggestion that Bushie was the primary caregiver but I did not find that evidence credible.

Alex’s testimony confirms Flett and Bushie were both involved in Abel’s care. [ 45 ] Based on the record as a whole, I am convinced Flett was one of Abel’s main caregivers. As such, Flett would have been involved in daily tasks such as feeding, bathing and diaper changing. It would be illogical to speculate Flett may not have known about Abel’s condition. Her interactions with Abel equipped her with knowledge of the extent of his injuries, the majority of which were glaringly obvious.

Allegation of Failure to Provide Medical Care [ 46 ] The fact that Abel was in need of medical care for his injuries on August 23, 2018, is not in dispute. [ 47 ] Defence argues the Crown has not proven Flett did not take Abel for treatment prior to August 23, 2018 and highlights the gaps in the medical records before the Court. I agree with defence that the records from the nursing station and the Health Sciences Centre (HSC) appear to be incomplete in that they do not contain all of Abel’s history of attendance for medical appointments at locations outside of Little Grand Rapids or HSC. Dr.

Cooney’s evidence establishes that Abel was treated by numerous physicians in several different locations in Manitoba over the course of his life, prior to the summer of 2018. The appointments at other locations are not all reflected in the records before the Court. [ 48 ] Additionally, it is not disputed that Abel was hospitalized at HSC in mid June 2018 for treatment of his seizures. McClumpha testified that the nursing station records should contain a discharge

summary from any hospital Abel attended for treatment outside of the community but the nursing station records do not contain a discharge

summary from HSC. [ 49 ] The fact the medical records are missing documents related to care received outside of Little Grand Rapids does not affect the accuracy of the records in relation to Abel’s history of personal attendance at the nursing station. Defence did not contest the admission of the nursing station records or challenge McClumpha’s credibility about the record keeping. The nursing station records contain notations by medical professionals made in the ordinary course of business and cover every patient interaction at the nursing station.

The records reveal a lengthy documented history of Abel’s personal attendance at the nursing station for medical care. [ 50 ] I am satisfied the nursing station records are a credible, complete and accurate record of all of the times Abel attended in person at the nursing station for medical care. McClumpha confirmed the records show Abel’s last attendance was on May 16, 2018.

I infer, relying on section 30(2) of the Canada Evidence Act, that Abel was not brought into the nursing station for medical care after May 16, 2018, given the absence of any notation of attendance, which I expect would have been recorded. [ 51 ] The nursing station records must be assessed in context. The nursing station is the only place to receive medical care in the community of Little Grand Rapids, Manitoba. Abel and his family returned to the community in late June 2018, after Abel was discharged from HSC and, as I understood the evidence, Abel remained in the community until his death.

The fact Abel did not attend the only location where he could receive medical treatment is compelling evidence that Flett did not provide medical care for his injuries. [ 52 ] In addition, Abel did not present on August 23, 2018, as a child who had received medical care for his injuries. He was wrapped in a blanket and wearing nothing but a dirty diaper. He did not have any dressings on his open wounds or casting on any fracture, which would have been part of the required treatment for some of his injuries according to Dr.

Cooney. [ 53 ] The Manitoba Health billing history for Abel was admitted as evidence and also suggests Abel was not seen by a medical service provider in Manitoba between June 16 and August 23, 2018. The billing history documents when a patient sees any service provider, meaning any medical professional or hospital. There is only one entry for Abel in relation to a prescription refill on July 31, 2018. [ 54 ] Defence argues the Court should not place weight on this evidence because there is no information before the Court detailing the timing and billing practices of different service providers.

Defence questions whether different forms of funding may be available to First Nations communities and therefore impact billing practices. [ 55 ] I am unable to accept defence’s argument because it calls for speculation. There is no basis to infer another billing system exists based on the evidence before this Court.

Further, the date of the prescription refill noted in the billing history appears to be consistent with the prescription refill noted in the nursing station records from the same date, which belies the suggestion another billing practice may exist for First Nations communities. [ 56 ] I accept the Manitoba Health billing history is a complete and accurate account of Abel’s medical history for the time stipulated and confirms Abel did not see any medical professional between June 16 and August 23, 2018. Based on the evidence as a whole, I am convinced that Flett failed to take Abel for medical care.

Allegation of Failure to Protect from Harm [ 57 ] A guardian has a legal duty to protect a child of under sixteen years of age from harm, including physical abuse. [ 58 ] Defence argues the Crown has not proven Abel was an abused child. I disagree. This is not a case involving one or two unexplained injuries. Abel suffered from numerous significant injuries that were very unusual for a child of his age and limited mobility. As is summarized below, Dr. Cooney testified several of Abel’s injuries raised a concern as being an inflicted injury, meaning an injury not caused by an accident. [ 59 ] While Dr.

Cooney conceded bruising was common for toddlers, she testified bruising normally occurs on the areas of the body expected to come into contact with hard surfaces such as the forehead, legs, and arms. Abel had extensive facial bruising on unusual areas. Abel also had a scleral hemorrhage, which involved bleeding in the eye, an injury Dr. Cooney testified was unusual particularly for a child of limited mobility. [ 60 ] Dr. Cooney testified the number and extent of Abel’s mouth injuries were “very unusual” and not something she has seen in her professional career.

In her opinion, inflicted trauma was the most likely cause of Abel’s mouth injuries. [ 61 ] Dr. Cooney testified Abel’s neck injury was most likely caused by inflicted trauma given the absence of context to suggest, for example, an accidental strangulation event. Dr. Cooney testified that drooling, rash, or pet scratches did not provide plausible explanations for Abel’s neck injury.

[ 62 ] As for Abel’s two scalp injuries, Dr. Cooney explained that a scalp hematoma is caused by, for example, someone falling and hitting their head which causes bleeding into the tissue of the skull. In her opinion, Abel’s scalp hematoma could be an accidental injury. In contrast, a subgaleal hemorrhage is a more unique injury in that it is caused by traction applied to the skull, for example, through hair pulling which opens the space between the skull and the layer of connective tissue. Dr.

Cooney testified, subgaleal hemorrhages can be caused by very unusual accidents but in the absence of any such information, it was her opinion this injury was most likely an inflicted injury. [ 63 ] Abel also suffered from an epidural hemorrhage, which meant he had bleeding above the protective membrane that surrounded his spinal cord. Dr. Cooney testified this was a very unusual injury in a child as it would be caused by a high level of trauma such as a car accident or if a child fell several stories. Dr. Cooney’s opinion was that this was an inflicted injury. [ 64 ] Dr.

Cooney considered Abel’s groin injury to be an inflicted injury. Dr. Cooney testified it appeared as if the skin tissue was injured as a result of exposure to heat, cold, chemical, radiation or electricity, but she did not know the cause. It was not a rash. [ 65 ] In terms of Abel’s arm fractures, Dr. Cooney testified one of the arm fractures was a buckle fracture which is very common in children and usually caused by falling with an outstretched hand. This was similar to the fracture near Abel’s elbow, which may also be caused by a fall when the arm is hyperextended.

As for the third arm fracture, the long bone was broken into two halves which is an injury that was caused from direct force trauma. Dr. Cooney testified such a fracture may be caused by accident but, on the record before this Court, there is no basis to reasonably infer an accident. I note Dr. Taylor testified it would be very uncommon for a child falling from a standing position to fracture a long bone. [ 66 ] As for the four rib fractures, Dr. Cooney testified this injury would be caused by blunt force trauma or the squeezing of the chest cavity.

She testified rib fractures are not usually caused from accidental trauma as a significant amount of force is required to fracture the ribs. Her opinion is consistent with Dr. Taylor’s evidence who also testified rib fractures are uncommon in children given the elasticity of their bones. Dr. Cooney opined the rib fractures were an inflicted injury and child maltreatment was the most likely cause. [ 67 ] Defence argues the Court should place little weight on Dr. Cooney’s opinion about the inflicted injuries and her conclusion of maltreatment because her manner of testifying was ambiguous.

Defence highlights the doctor’s routine use of the word “likely” to qualify her opinions which, he argues, falls far short of convincing a Court beyond a reasonable doubt. [ 68 ] I have considered defence’s argument carefully given Dr. Cooney’s apparent reluctance to express her opinion in definitive terms. After considering her evidence as a whole, it is not my

interpretation that the doctor lacked confidence in her conclusions. Rather, Dr. Cooney expresses herself in a reserved and cautious manner. Almost all her conclusions were qualified with the word “likely”, but that word should not be divorced from the overall context of her testimony. [ 69 ] Dr. Cooney detailed Abel’s injuries as well as the basis for her opinions. She presented as an articulate, careful witness who was quick to make reasonable concessions. She reasonably conceded Abel had some injuries that could have been caused by accident, such as the scalp hematoma and the bruises to his forehead.

However, the number of “very unusual” injuries concerned her. She listed the subgaleal hemorrhage, the epidural spinal hemorrhage, many of Abel’s facial bruises, the neck and groin injuries, and the rib fractures as injuries not commonly caused by accident. She testified the totality of these injuries very significantly raised a concern for child maltreatment. As I interpreted Dr. Cooney`s evidence, in the absence of credible information suggesting an accident, it was her opinion that these were inflicted injuries caused by child maltreatment. [ 70 ] I accept Dr.

Cooney’s opinion; her evidence is credible, it made sense in the circumstances and it is consistent with the undisputed medical evidence. Indeed, her conclusions are the only reasonable conclusions to draw applying common sense to the evidence given the number and nature of Abel’s injuries. There is no reasonable basis to infer Abel’s significant injuries were caused by a pre-existing medical condition, an accident or a seizure. Given his age and limited mobility, he would not be in a position to self-inflict significant injury.

The totality of the evidence in this case makes it clear – Abel was an abused child and Flett failed to protect him. Did Flett show a marked departure from the conduct of a reasonably prudent parent in the same circumstances? [ 71 ] The duty imposed by

section 215 of the Criminal Code is based on an objective or community standard of conduct. The law does not demand perfect parenting (see R v J.(S.), 2015 ONCA 97 at para 54 ). The key question is whether there has been a marked departure from the conduct of a reasonably prudent parent in the same circumstances. I am convinced Flett’s inaction was a marked departure. [ 72 ] Abel’s appearance on August 23, 2018 called for action. His injuries cried out for medical treatment. Words are inadequate to convey Abel’s state as depicted in the nursing station photographs.

I have no hesitation in concluding a reasonably prudent parent would look at Abel’s appearance on August 23, 2018, and take immediate action knowing he was in need of protection and medical care. [ 73 ] For the reasons that follow, I am also convinced a reasonably prudent parent would have protected Abel from harm and taken him for medical care well before August 23, 2018. It is apparent he suffered several separate instances of physical abuse, resulting in obvious injury, over the course of weeks before he died. [ 74 ] As far back as July 18, 2018, Little observed Abel with a bruised forehead and two black eyes.

The explanation Flett offered, that Abel hit his forehead on the crib, does not make sense in light of the evidence as a whole. Dr. Cooney was asked about what type of bruising would be typical if a child hit his head on a crib. As I understood her response, it would be normal for a bruise to occur on the forehead (the point of contact) but other facial bruising such as black eyes, while not impossible, would be unusual. [ 75 ] I note Flett provided a similar explanation to her brother Alex, weeks later, when he was babysitting and asked why Abel had a black eye.

Two weeks after that, Abel had another black eye when he was brought into the nursing station with Flett on August 23,

2018. Given the surrounding context, appreciating Abel was a young child with limited physical abilities, I do not believe Flett’s explanations. [ 76 ] Dr. Taylor categorized Abel’s scalp injuries as both chronic and acute which meant they were from at least two separate instances of trauma. I find the neck, lip and groin injuries were approximately two weeks old based on the unchallenged timing of Alex Flett’s observations and the medical evidence. As for Abel’s broken bones, Dr.

El Demellawy’s evidence, which I accept, proves Abel experienced at least two traumatic incidents that caused separate bone fractures in his arm and ribs. The rib fractures were between eight and nineteen days old and the arm fractures were less than seven days old. This is consistent with Dr. Taylor’s findings. [ 77 ] Defence does not question Dr. El Demellawy’s credibility, but argues the Court should not rely on her evidence because the Crown has not proven that the slides she analyzed were in fact slides from Abel’s bone tissue. I disagree.

The only reasonable inference to draw given the testimony of both doctors and their reports filed is that Dr. El Demellawy analyzed samples of Abel’s bone tissue. [ 78 ] Dr. Taylor testified he collected the samples during his autopsy and the samples were labelled with unique case identifying information including Abel’s name and the autopsy reference number. His technicians later placed a portion of those samples onto a slide. I appreciate Dr. Taylor did not supervise his technicians perform this task but I accept his evidence that the placement of samples onto slides involves a standard medical procedure. Dr.

Taylor then received the slides and forwarded them for a second opinion. [ 79 ] Dr. El Demellawy’s evidence confirms she was assigned the task of reviewing Dr. Taylor’s findings by her colleague Dr. Walker. Dr. Walker did not testify but I am nevertheless convinced based on the corresponding evidence of Dr. El Demellawy and Dr. Taylor that she was analyzing slides of Abel’s bone tissue. While Dr. El Demellawy was not able to describe how the slides were labelled, the reports prepared by both doctors correspond in time and reference Abel by name and include a matching autopsy reference number.

It would be illogical and inconsistent with the evidence to infer the bone samples analyzed by Dr. El Demellawy were from another individual. [ 80 ] Based on the medical evidence about the number and severity of Abel’s injuries, I am convinced beyond a reasonable doubt that he would have been exhibiting pain. Dr. Cooney testified Abel’s groin injury would have been extremely painful. This is consistent with Dr.

Taylor’s evidence that the missing skin would result in nerve damage which would be painful and cause ongoing discomfort as it healed. [ 81 ] In addition to exhibiting pain, Abel would have demonstrated reduced movement given the totality and nature of his bone fractures. While Dr. Cooney testified it was possible that a child suffering with a bone fracture may present with no symptoms, as I understood her evidence, that would be unusual.

The typical symptoms for bone fractures are pain, swelling and reduced movement. [ 82 ] I have considered defence’s argument that there is no direct evidence that Abel was in pain and Alex’s concession that Abel was not crying but presented as “happy”, in the weeks and days before his death. Given the severity of Abel’s injuries at the time, I do not find that assertion credible. [ 83 ] I am convinced Flett was aware of the extent of Abel’s injuries as they were plainly visible to her as his caregiver, and he would have demonstrated ongoing pain, discomfort and reduced movement.

Defence did not argue there was a lawful excuse for Flett’s inaction. The only reasonable conclusion to draw in these circumstances is that Flett knew Abel was being injured from ongoing abuse but she chose not to act. Did Flett’s failure to act lead to a risk of danger to life or a risk of permanent endangerment to Abel’s health? [ 84 ] The Crown has the onus to prove beyond a reasonable doubt that the risks of harm listed in s. 215(2) (a)(ii) of the Criminal Code were objectively foreseeable in the circumstances.

It is important to remember s. 215 of the Criminal Code criminalizes endangering life, not causing death. The evidence as a whole leads to the incontrovertible conclusion, given the number and severity of the injuries, that it was objectively foreseeable that Flett’s failure to act would risk Abel’s life or risk permanent endangerment to his health. [ 85 ] The failure to protect Abel from abuse resulted in further physical injuries and the medical evidence confirmed the failure to seek timely treatment increased the risk of his death.

While some of Abel’s injuries required no treatment other than pain management and monitoring, they nevertheless could endanger his life if ignored. For example, Dr. Cooney testified his mouth injuries increased the risk of inadequate hydration and nutrition. The severity of Abel’s mouth injuries in combination with his very unusual significant weight loss, 16.8% of his body weight in three months, leads the Court to conclude the risk of endangerment to his life was real.

Any reasonably prudent parent would appreciate the risk to life and health, created by Abel’s serious mouth injuries, and would have sought treatment. [ 86 ] Abel’s multiple bone fractures required pain control and, in some cases, casting. While it was possible a reasonably prudent parent may not appreciate the existence of the buckle fracture because it sometimes does not have symptoms, they would know something was wrong given the typical symptoms of the other fractures. As indicated, I am convinced Abel would have exhibited pain and limited movement given the nature and totality of his bone fractures.

A reasonably prudent parent would bring a child in for treatment. Flett’s inaction placed Abel’s health at risk of permanent endangerment. As Dr. Cooney testified, a failure to treat some of Abel’s fractures could lead to abnormal bone growth. [ 87 ] Other injuries posed an even more obvious threat to Abel’s life. For example, Dr. Cooney testified Abel’s neck injury required substantial medical treatment to heal properly. There was a potential for infection because of the exposed tissue which could cause death if left untreated.

When asked how she would respond if Abel was brought into her clinic with his groin injury, Dr. Cooney testified she would have immediately called an ambulance as Abel needed urgent medical care that was beyond the abilities of any outpatient pediatrician or family doctor. Abel needed pain management, IV fluids, antibiotics, skin grafts and possibly plastic surgery. A reasonably prudent parent would have immediately sought medical treatment given Abel’s obvious and significant groin injury. His life was clearly at risk. CONCLUSION

[ 88 ] The evidence as a whole convinces the Court beyond a reasonable doubt of all the elements of the offence of failure to provide the necessaries of life pursuant to s. 215(2) (a)(ii) of the Criminal Code . For the same reasons, I am also convinced, in relation to s. 215(2)(a)(i), that Flett’s failure to act was a marked departure from the conduct of a reasonably prudent parent in circumstances in which it was objectively foreseeable that Abel was destitute or in necessitous circumstances. I find Flett guilty. “Original signed by” Cawley, P.J.