2022 QCCA 485, 2022 QCCA 485

D.N. c. R. 2022 QCCA 485 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007249-194 , 500-10-007438-201 ( 760-01-066050-136 ) MINUTES OF THE HEARING WARNING : Order restricting publication: On November 28, 2019, the Court of Quebec (the Honourable Joey Dubois), District of Beauharnois, made an order under s. 486.4 Cr.C . directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. DATE: April 7, 2022 CORAM: THE HONOURABLE JULIE DUTIL, J.A. PATRICK HEALY, J.A. CHRISTINE BAUDOUIN, J.A.

No.: 500-10-007249-194 APPELLANT COUNSEL D. N. Mtre benoit demchuck ( Bourgon Corbeil, avocats ) M tre francis cloutier ( Me Francis Cloutier, avocat ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre patrick cardinal ( Director of Criminal and Penal Prosecutions ) By videoconference No.: 500-10-007438-201 APPLICANT COUNSEL

D. N. Mtre benoit demchuck ( Bourgon Corbeil, avocats ) M tre francis cloutier ( Me Francis Cloutier, avocat ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre patrick cardinal ( Director of Criminal and Penal Prosecutions ) By videoconference 500-10-007249-194 On appeal from a judgment rendered on November 28, 20 19 by the Honourable Joey Dubois of the Court of Quebec, Criminal and Penal Division , District of Beauharnois . 500-10-007438-201 On appeal from a judgment rendered on October 13, 202 0 by the Honourable Joey Dubois of the Court of Quebec, Criminal and Penal Division, District of Beauharnois .

DESCRIPTION: 500-10-007249-194 Guilt – Assault. 500-10-007438-201 Sentence – Motion for leave to appeal referred ( Section 675(1)

b) of the Criminal Code and articles 58 and following Rules of the Court of appeal in Criminal matters). Clerk at the hearing : Lesly Ramos Courtroom: Antonio-Lamer HEARING 9:33 Commencement of the hearing. Identification of counsel. 9:35 File # 500-10-007249-194 : Submissions by Mtre Demchuck. 9:41 Discussion between the Court and Mtre Demchuck. 10:24 File # 500-10-007438-201 : Submissions by Mtre Demchuck. 10:25 Question by the Court and response by Mtre Demchuck. 10:30 Mtre Demchuck resumes his submissions. 10:34 Recess of the hearing. 10:40 Resumption of the hearing.

10:41 File # 500-10-007249-194: Submissions by Mtre Cardinal. Questions by the Court and responses by Mtre Cardinal. 10:59 File # 500-10-007438-201: Submissions by Mtre Cardinal. 11:02 Reply by Mtre Demchuck. 11:04 Recess of the hearing. 11:27 Resumption of the hearing. 11:28 BY THE COURT: Judgment – see page 5. 11:29 Discussion between the Court and the counsel concerning the date for the applicant to surrender to correctional authorities. Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT WARNING : Order restricting publication: On November 28, 2019, the Court of Quebec (the Honourable Joey Dubois), District of Beauharnois, made an order under s. 486.4 Cr.C . directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. [ 1 ] There are two files before the Court. In the first [1] Mr. D. N. appeals against a finding of guilt by the Court of Quebec [2] on one count of assault causing bodily harm [3] to an infant of seventeen (17) days who sustained a broken femur.

In the second [4] he seeks leave to appeal against the sentence of ten months (followed by probation of twelve months) that was imposed for this offence. [5] I Facts [ 2 ] The essential facts are that the appellant was alone with the victim. He testified that, while changing his diaper, he heard a loud snapping sound as he lifted the child. Subsequent examination disclosed that as a consequence of this procedure the infant suffered a broken femur. At trial, the judge rejected evidence that the injury was attributable to an unusual condition that made the child susceptible to an injury of this nature.

He concluded that the child was an ordinary infant who sustained the broken femur as a result of excessive pressure applied by the appellant. II Conviction [ 3 ] The grounds of appeal against the finding of guilt can be restated as one. The appellant submits that the trial judge failed to give adequate attention to medical evidence that the victim might have had an underlying condition that made him unusually susceptible to bone fractures that would not occur in children without such a condition.

The appellant submits that this evidence could not be rejected for lack of credibility or reliability and that it was sufficiently plausible to leave a reasonable doubt on the whole of the case. The appellant submits in effect a view of the weight of the evidence that would lead to an acquittal and that the judge erred in failing to adopt this view. [ 4 ] The judge recites the guidance derived from W.(D.) . [6] He says that if he believes the appellant’s account of events, or that it raises a reasonable doubt, there must be an acquittal.

He says that if the medical evidence raises a reasonable doubt concerning the nature and cause of the injury there must also be an acquittal. He says that a finding of guilt could be based only on proof beyond reasonable doubt of guilt on the whole of the evidence. The judge concludes that he does not believe the testimony of the appellant and that it does

not raise a reasonable doubt. [ 5 ] The judge rejects the evidence of Dr. Holick, appellant’s principal expert, on the basis that it is neither credible nor reliable. Dr. Holick testified that there were three possible explanations on which to conclude that the child suffered from an underlying condition that could plausibly explain that the fracture of the child’s femur was attributable to a cause other than the application of unreasonable force by the appellant.

The judge examines the witness’s testimony closely and concludes that in the absence of a demonstrable empirical foundation his opinion was entirely speculative and should be rejected. [ 6 ] The judge also concludes that the testimony of the other medical experts called by the appellant does not raise a reasonable doubt that a contributing cause of the child’s injury was an underlying medical condition that made him more susceptible to serious harm. He adds that to conclude likewise would be speculation because it is not supported by any tangible evidence.

The judge carefully reviews the evidence of those experts at length and notes that each of them was satisfied that in order to break the femur, some pressure had to be put on that bone. [ 7 ] The judge analyzes further the testimony of Dr. Toulouse and Chabot called by the prosecution. The first has been X’s pediatrician since 2013. She has been following his development and possible symptoms related to any condition relating to a metabolic bone disease. She concludes he has none. The second is a physician specialized in bone disease.

He affirms that he does not see the phenomenon raised by appellant’s experts as indicative of any bone disease and that he has no reason to suspect the child has fragile bones. He confirms that X’s growth is normal, that he does not fracture easily and shows no sign of being different. [ 8 ] The reasons of the trial judge demonstrate a thorough assessment of the evidence relating to the cause of the victim’s injury.

The law does not require the judge to review in a piecemeal manner each item of relevant evidence [7] in his evaluation of the case as a whole but it does require an explanation of the material grounds for his conclusions. [8] The judge explains in detail the reasons for which he accords neither credibility nor reliability to evidence supporting the defence theory of an underlying medical condition. He explains why he concludes that the cause of the injury was the intentional application of force by the appellant.

He explains why the circumstantial evidence leaves no reasonable conclusion other than the appellant’s responsibility for the harm inflicted on the infant. [9] [ 9 ] The appellant invites this court to conduct a fresh examination of matters of fact that the trial judge rejected in the exercise of his duty to weigh the credibility and reliability of evidence presented before him. We decline this invitation because it lies outside the function of appellate review.

III Sentence [ 10 ] It is well established that appellate intervention in matters of sentencing is justified only where the sentence discloses an error of principle or a distortion of relevant principles and objectives that leads to a sentence that is disproportionate or otherwise unfit. [10] In this case the judge clearly identified and weighed the principles and objectives applicable in a case of this nature.

He rightly emphasised denunciation and general deterrence as objectives of particular importance in a case where an adult in a position of trust and authority intentionally inflicts physical harm on a vulnerable and defenceless child. [ 11 ] The judge notes that among aggravating factors he must consider, according to

section 718.2( a )(iii.1) of the Criminal Code , the effect of the offence on the victim. In the circumstances of this case it is clear that the disruptive consequences of the offence for everyone affected are profound and permanent, including the subsequent adoption of the victim. Consideration of this factor is required by the Code but there is no indication in the judge’s reasons of the manner in which this consideration would affect the sentence imposed. There is certainly no proof beyond reasonable doubt of the degree to which this factor is aggravating in the circumstances of this case.

It cannot be said, however, that consideration of this factor is in any way an error of principle or an inappropriate criterion in the determination of the sentence. [ 12 ] The sentence imposed in this case plainly lies within an acceptable range and the reasons provided by the judge disclose neither an error of principle nor a misapplication of relevant considerations. While it is always possible that another judge or even a panel of other judges might exercise the same discretion and apply the same principles to reach another result, it does not follow that the judgment in this case warrants appellate review.

FOR THESE REASONS THE COURT: [ 13 ] DISMISSES the appeal against the finding of guilt in file n o 500-10-007249-194; [ 14 ] DISMISSES the application for leave to appeal against sentence in file n o 500-10-007438-201; [ 15 ] ORDERS the applicant to surrender to correctional authorities not later than noon on 15 April 2022 . JULIE DUTIL, J.A.

PATRICK HEALY, J.A. CHRISTINE BAUDOUIN, J.A.