R. v. Rahman, 2014 NSCA 67

Nova Scotia Court of Appeal Citation: R. v. Rahman , 2014 NSCA 67 Date: 20140623 Docket: CAC 406301 Registry: Halifax Between: Ashiqur Rahman Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice David P.S. Farrar Appeal Heard: By written submissions dated as follows: Appellant’s Factum – April 11, 2014 Respondent’s Factum – May 30, 2014 Appellant’s Reply – June 5, 2014 Subject: Criminal Law. Aggravated Assault and Manslaughter. Criminal Code of Canada , R.S.C. 1985, c. C-46, s. 686(1)(a) . Unreasonable Verdict. Misapprehension of the Evidence.

Summary: The appellant was convicted of aggravated assault and manslaughter relating to the injuries and ultimate death of his daughter. He appealed, arguing that the verdicts were unreasonable or resulted from a misapprehension of the evidence because the trial judge: (

i) misapprehended the evidence by finding he caused injuries to and the death of his daughter when the evidence did not support those findings; (ii) relied on the testimony of his former partner and mother of the deceased child, who was an untrustworthy witness, in finding him guilty; and (iii) failed to find the evidence raised a reasonable doubt. Issues: Were the verdicts unreasonable or based on a misapprehension of the evidence? Result: Appeal dismissed. The trial judge’s findings that Mr. Rahman caused the injuries to and death of his daughter were detailed, sound and amply supported by the evidence.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 21 pages. Nova Scotia Court of Appeal Citation: R. v. Rahman , 2014 NSCA 67 Date: 20140623 Docket: CAC 406301

Registry: Halifax Between: Ashiqur Rahman Appellant v. Her Majesty the Queen Respondent Judges: Oland, Fichaud and Farrar, JJ.A. Appeal Heard: By Written Submissions dated as follows: Appellant’s Factum – April 11, 2014 Respondent’s Factum – May 30, 2014 Appellant’s Reply – June 5, 2014 Held: Appeal dismissed per reasons for judgment of Farrar, J.A.; Oland and Fichaud, JJ.A. concurring. Counsel: Appellant in person Mark Scott, for the respondent Reasons for judgment: Introduction [ 1 ] Aurora Breakthrough (“Aurora”) was born on June 6, 2009, the daughter of the appellant Ashiqur Rahman and Jane Gomes.

Seven weeks later on July 23, 2009, she was admitted to the IWK Children’s Hospital. The prognosis for her survival was dim. She passed away on July 27, 2009. [ 2 ] An autopsy concluded that Aurora died from blunt head trauma. Mr. Rahman and Ms. Gomes were both charged with offences with respect to Aurora’s injuries and death. [ 3 ] Mr. Rahman was committed to stand trial for manslaughter and aggravated assault following a preliminary inquiry. [ 4 ] Ms.

Gomes pleaded guilty to failing to provide the necessities of life and entered into an Immunity Agreement with the Attorney General of Nova Scotia in exchange for her testimony at Mr. Rahman’s trial. [ 5 ] The trial lasted approximately one month. In a lengthy 367 paragraph decision ( R. v. Rahman , 2012 NSSC 235 ), Cacchione J. convicted Mr. Rahman of aggravated assault and manslaughter relating to the injuries and ultimate death of his daughter. Mr. Rahman was sentenced to 6 years and 6 months in prison ( R. v. Rahman , 2012 NSSC 303 ). [ 6 ] Mr.

Rahman originally appealed from both his conviction and sentence, he subsequently abandoned his sentence appeal. [ 7 ] He argues on the conviction appeal that the trial judge misapprehended the evidence or the verdict is unreasonable. For the reasons that follow, I would dismiss the appeal. [ 8 ] I will address the facts and evidence in more detail when addressing Mr. Rahman’s grounds of appeal. Issues [ 9 ] Mr.

Rahman, in his factum and reply factum, outlines his grounds of appeal in this way: i. misapprehension of the evidence; ii. unreasonable finding with respect to the credibility of Jane Gomes; iii. reasonable doubt of guilt. [ 10 ] The first ground of appeal is, as is apparent from its wording, an allegation by Mr. Rahman that the trial judge misapprehended the evidence. The last two grounds of appeal, although not couched in these terms, are alleging that the verdict was unreasonable or

unsupported by the evidence. I would restate the grounds of appeal and address them in this order: i. The trial judge erred in drawing an inference or made a finding of fact essential to the verdict that isunsupported by the evidence; ii. The trial judge erred in finding Jane Gomes was credible, thereby leading to an unreasonable verdict; iii. The trial judge erred in finding Mr. Rahman guilty of manslaughter when the evidence raised a reasonabledoubt about the cause of Aurora’s death. Standard of Review [11] With respect to the first ground of appeal, Mr.

Rahman alleges that the trial judge misapprehended the evidence. The leadingcase on the test for misapprehension of evidence is R. v. Lohrer, 2004 SCC 80, as follows: [1] This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C.Court of Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. ofthe Ontario Court of Appeal in R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, as follows at p. 221: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and isnot a “true” verdict. Later in the same paragraph, Doherty J.A. stated: If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. We agree with these observations.

Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, R.S.C.1985, c. C-46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supported by theevidence” within the meaning of s. 686(1)(a)(i). [2] Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to thesubstance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles aresurmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified mustplay an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [12] The reasonableness of a verdict, Mr. Rahman’s second argument, within the meaning of s. 686(1)(a)(

i) of the Criminal Code ofCanada, R.S.C. 1985, c. C-46, involves a question of law. The standard of review is correctness (R. v. Biniaris, 2000 SCC 15). Inassessing whether a verdict is unreasonable, an appellate court must: i. determine whether the verdict is one that a properly instructed jury or a judge could reasonably have made;or ii. find that the trial judge has drawn an inference or made a finding of fact essential to the verdict that (

a) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or (

b) is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. (R. v. Sinclair, 2011 SCC 40; R. v. Biniaris, supra; R. v. Beaudry, 2007 SCC 5; and R. v. Yebes, (SCC), [1987] 2S.C.R. 168). [13] However, the credibility of a witness is a question of fact. In R. v. R.P., 2012 SCC 22, the Court held: [10] ...

A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdictis reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view ofthe evidence” ... (See also, R. v. Burke, (SCC), [1996] 1 S.C.R. 474 at ¶7). [14] What I have categorized as Mr. Rahman’s third ground of appeal is really an argument that the verdict is unreasonable becausethe Crown did not establish guilt beyond a reasonable doubt.

I have discussed earlier the standard for assessing the reasonableness of theverdict. [15] With these standards of review in mind I will now turn to a review of the issues on this appeal. Analysis The trial judge erred in drawing an inference or made a finding of fact essential to the verdict that is unsupported by theevidence

[ 16 ] The appellant argues that the trial judge erred by “concluding, without supporting evidence, that the appellant wounded, maimed, disfigured, endangered or killed the victim during each of the events of common assault”. He refers in particular to four paragraphs of the trial judge’s decision. I will repeat them here: [361] I am satisfied on the basis of the evidence I accept that on June 29th, 2009 Mr. Rahman slapped Aurora in the face in anger and frustration. I also find that on July 7th, 2009 Mr.

Rahman slapped Aurora across the face with sufficient force to cause the older subdural bleeding seen by the doctors. [362] I also find that Mr. Rahman downplayed the number of times he was alone with Aurora. I am satisfied that in late June 2009 he squeezed Aurora around the chest and caused her older rib fractures. [363] I am also satisfied that on July 15th, 2009 Mr. Rahman shook Aurora with enough force, while holding her arms and legs, to cause the injuries noted to her arms and legs. ... [365] I am satisfied that on July 22nd, 2009 Mr. Rahman was upset with Ms.

Gomes because she would not remove Aurora from her stroller. He was also upset because of Aurora's constant crying. Mr. Rahman moved Aurora from the stroller to the bed. He did so forcefully by either tossing her on the bed or dropping her on the bed. This caused the injuries which ultimately lead to her death. [ 17 ] He says these events formed the only basis for his aggravated assault and manslaughter convictions. Mr. Rahman argues under this ground of appeal essentially, that there was insufficient supporting evidence to accept Ms.

Gomes’ description of the events and that the evidence was not sufficient to conclude that Mr. Rahman caused the death of Aurora. [ 18 ] This case, although it involved lengthy and complicated medical evidence, raises two relatively simple issues: i. Did the Crown prove beyond a reasonable doubt that Aurora’s injuries and death result from abusive trauma? and; ii. If they are as a result of abusive trauma, who was the perpetrator? [ 19 ] In order to address Mr.

Rahman’s argument, it is necessary to review the trial judge’s decision and the evidence which he relied on in some detail to illustrate that the convictions were reasonable and amply supported by the evidence. [ 20 ] The trial judge starts his review of the evidence by discussing the four events of alleged violence against Aurora by Mr. Rahman as described by Ms. Gomes. [ 21 ] The first occurred on June 29, 2009, when Ms. Gomes went to purchase groceries. When she returned, Mr.

Rahman informed her that Aurora started crying about 20 minutes after she left and would not stop, so he slapped her. [ 22 ] On July 7, 2009, the family received an invoice from the IWK for Aurora’s birth and stay at the hospital. Ms. Gomes said that Mr. Rahman was upset that they did not have provincial coverage. On this occasion Aurora was again crying and would not stop. Mr. Rahman slapped her across the face once with the palm of his hand, and once with the back of his hand. [ 23 ] On July 15 Ms. Gomes and Mr. Rahman awoke to the baby crying. Mr.

Rahman grabbed Aurora’s arms and legs and firmly shook her back and forth three or four times. Mr. Rahman complained that the baby was crying too much and he appeared angry. [ 24 ] On July 22 Aurora was again unsettled. Ms. Gomes put her in her stroller. Mr. Rahman wanted Ms. Gomes to put Aurora on the bed. She refused to do so. Ms. Gomes left for approximately 2-3 minutes. When she returned Aurora was no longer in the stroller but instead was on her bed and not crying. Ms. Gomes picked up Aurora and noticed that her eyes were half open. [ 25 ] Although there was no incident on July 23, 2009, Ms.

Gomes testified the baby did not seem to be her normal self. She did not cry nor did she seem to be totally awake. She started to have trouble breathing which resulted in 911 being called. [ 26 ] The paramedics arrived at approximately 10:20 p.m. They found Aurora to be unresponsive, not breathing and without palpable carotid pulse.

CPR was performed. [ 27 ] Aurora’s heart rate was monitored and showed a heart rate of 42 beats per minute which was described as pulseless electrical activity indicating that there was electrical activity in the heart but not enough to get a pulse. [ 28 ] She was transferred by ambulance to the I.W.K. where she was treated by Dr. Brian Norman, an internist in the pediatric intensive care unit . His examination of Aurora determined she was critically ill with severe neurological problems. He observed a bulging fontanelle which was very tense.

The fontanelle is commonly referred to as the “soft spot” on a baby’s head. The bulging of the fontanelle indicated to him that there was intense pressure on the brain caused by an injury to the brain and that the injury would have occurred within the previous 24 hours. [ 29 ] Dr. Norman testified that whatever insult had occurred to Aurora’s heart it had fully recovered after the initial intervention by doctors. [ 30 ] His examination also revealed that there was a significant blood loss and no external injuries to account for it.

His opinion was that a cerebral bleed caused by cardiac arrest would not account for the amount of blood loss he noted. Further testing, including a CT scan, led him to believe that the subdural bleeding on the brain was caused by non-accidental trauma. [ 31 ] When Dr. Norman spoke to Ms. Gomes and Mr. Rahman and informed them of the gravity of Aurora’s condition, Ms. Gomes cried hysterically. Mr. Rahman showed little reaction other than to ask if shaking a child , a stroller or a change from breast milk to

formula could cause Aurora’s injuries. [ 32 ] It was determined that withdrawal of medical care was appropriate for Aurora. Tests were performed to determine if she could be an organ donor. An echocardiogram showed hypertrophic cardiomyopathy (HCM), a condition of the heart. As will be discussed later, this evidence was of significance to the defence as Mr. Rahman’s position was that Aurora’s death occurred as a result of a natural event and was not related to trauma. [ 33 ] Dr. Norman could not rule out HCM as a cause for Aurora’s cardiac arrest.

Cardiac arrest, he testified, could be caused by an infliction of trauma to the brain, damage to the brain or HMC. However, HCM did not explain the numerous fractures that were present including rib fractures (some of which were older than others), fractures to the humerous, radius ulna, femur, tibia and fibia. Dr. Norman testified that this was non-accidental trauma. [ 34 ] An MRI performed on July 24, 2009, showed extensive multicystic encephalomalacia (MCE) involving both hemispheres of the brain indicating that the brain tissue had died. Dr. Norman testified that this was not as a result of a cardiac arrest.

In the end, Dr. Norman was of the view that Aurora had sustained injuries which were non-accidental trauma. [ 35 ] The trial judge accepted the evidence of Dr. Norman (¶68). [ 36 ] The trial judge then turned his mind to the evidence of Dr. Stephen Bellemare, an expert in pediatrics with a special expertise in the

interpretation and diagnosis of child maltreatment and injury. [ 37 ] His conclusion was that Aurora’s injuries were typical of abusive head trauma of a baby and the abuse had occurred over time. [ 38 ] His evidence was that forcefully slapping an infant across the face could lead to retinal bleeding without visual external bruising and tossing an infant on a mattress on a floor could cause the brain injuries seen in Aurora. [ 39 ] The trial judge made note that he did not accept all of Dr. Bellemare’s evidence (¶107).

However, it is obvious from the trial judge’s ultimate conclusion, which I will come to later, that he agreed with Dr. Bellemare that Aurora’s injuries resulted from blunt force trauma. [ 40 ] I will pause here to address an argument that Mr. Rahman makes with respect to the evidence of Dr. Bellemare. He says that Dr. Bellemare cannot confirm if any of the alleged injuries were caused by any of the four alleged incidents of assault testified to by Ms. Gomes. [ 41 ] With respect, this is a distortion of Dr. Bellemare’s evidence. Dr.

Bellemare was asked to respond to four hypotheticals, not for the purpose of showing that the injuries could not have occurred from the actions of Mr. Rahman, but rather to rule out that the injuries were caused by accidental trauma. Dr. Bellemare’s responses to the hypotheticals do not indicate that he doubted non-accidental trauma caused the injuries. To the contrary, the answers add weight to his conclusion that the degree of force required to produce the injuries was more than is normal in child care. [ 42 ] The trial judge then reviewed the evidence of Dr.

Robert Chen who was qualified as a pediatric cardiologist. He has training with respect to brain injuries that follow a cardiac arrest. He, too, recognized that Aurora had HCM. Although he could not exclude the possibility of Aurora’s death having been secondary to a cardiac arrest relating to her HCM, he noted that the underlying cardiac disorder may have caused death but it did not explain the other abnormalities found . In particular, cardiac arrest secondary to HCM would ordinarily not be associated with multiple rib fractures of various ages or retinal hemorrhages.

His evidence was accepted by the trial judge (¶136). [ 43 ] Dr. William Halliday gave evidence. He was qualified as a pediatric neurologist, expert in the pathological examination, diagnosis and assessment of brain injuries in children. [ 44 ] Dr. Halliday’s evidence was also accepted by the trial judge (¶188). It was his view that the presence of retinal hemorrhages, subdural and subarachnoid hemorrhaging and the severe findings with respect to Aurora’s brain led to the conclusion that this was a case of abusive head trauma. [ 45 ] Dr. Marnie Wood, the Medical Examiner, gave evidence.

She was qualified as an expert to give opinion evidence as to the cause of death, nature of injuries, traumatic injuries, and causation. Dr. Wood did a thorough review of Aurora’s history, including her birth. She was obviously an important witness and the trial judge referred to her evidence extensively. So will I. She testified to the following: • Aurora’s birth was uncomplicated and not traumatic. No injuries were noted in the post-delivery examination. Her Apgar scores were 9 and 10, 10 being the best. At the time of her discharge Aurora was a healthy infant; • A total of 30 rib fractures were identified.

The rib fractures were found in the front, side and back of the ribs. They were of varying ages; • A healing fracture of the left radius and ulna and periostal hemorrhage of the mid-right femur; • There was a recent subdural hemorrhage, and recent subarachnoid hemorrhage (bleeding around the brain); • Extensive MCE (multi-cystic encephalopathy). MCE is a condition involving damage to the brain due to the lack of blood flow and infection. It is not usually associated with trauma, however, it can be caused by anything leading to reduced blood oxygen supply to the brain.

Although the timing of the MCE was uncertain, the normal examinations at the time of birth and immediately after suggested that it did not occur in utero or during delivery;

• Three recent anterior fractures of the ribs may have been attributable to resuscitation; • The other rib fractures were as a result of a squeezing type of force and the arm fractures were as a result of the application of direct force; • If the brain injuries had occurred at the time of birth one would expect the child to be symptomatic and the symptoms would have been apparent to physicians and staff who examined her at the clinic; • Twenty-four multiple boney injuries in healthy, non-walking infants are considered suggestive of non-accidental trauma; • Diffuse, hypoxic ischemic encephalopathy (HIE) which is damage to the brain due to lack of oxygen.

A lack of oxygen to the brain, from any cause (i.e., without preceding trauma), may cause bleeding from damaged blood vessels into the subdural space. However, in none of the reported cases in the medical literature was there enough blood present to be visible under a microscope and the blood was located within the dural membrane. In Aurora’s case, several millilitres of blood were noted on the underside of the dural membrane; • There was no thinning of the bones or skeletal deformities; • No history of accidental trauma was reportedly suffered by Aurora.

Unwitnessed injury would be unexpected in an infant too young to walk or crawl. Accidental trauma of significant force to cause bone injury in a healthy infant would expect to be noticed by a caregiver at the time of the injury; • The certified cause of death was blunt force injury of the head. [ 46 ] After summarizing Dr. Wood’s evidence the trial judge accepted Dr. Wood’s conclusion that the cause of death was blunt force injury (¶218). [ 47 ] Finally, Dr. Robert Macaulay was called by the defence and qualified as an expert in neuropathology, able to express opinions in relation to the examination and

interpretation of the human brain and central nervous system pathologic features. He agreed with Dr. Halliday’s opinion stating: I do not think that the eight pathologies can be unified by anything other than abusive head trauma. Trauma unifies the eight findings of brain pathologies found by Dr. Halliday.

It also accounts for the rib fractures and broken bones ... [ 48 ] After extensively reviewing this evidence the trial judge came to the conclusion, beyond a reasonable doubt, that Aurora died as a result of the non-accidental trauma (abusive head trauma) (¶241). [ 49 ] There was ample evidence for the trial judge to conclude that her death was as a result of abusive trauma. His conclusion is not a misapprehension of the evidence but is fully supported by all of the evidence. [ 50 ] Mr.

Rahman appears to be of the view that all of the findings with respect to his guilt must be found within the four corners of the incidents testified to by Ms. Gomes. [ 51 ] That is not the case. [ 52 ] Once the trial judge concluded Aurora’s death was caused by an unlawful act, it was then up to him to determine whether the Crown proved beyond a reasonable doubt that Mr. Rahman was the perpetrator. The trial judge turned his mind to that question.

He found, and it was supported by the evidence, that the only two people who had daily contact with Aurora during her short life were her mother and the appellant (¶273). [ 53 ] It was open to the trial judge to take into account not only the evidence of Ms. Gomes regarding the four incidents, but also the medical evidence, which the trial judge accepted, that Aurora had been subjected to abuse over a period of time. [ 54 ] The judge also took into consideration Mr. Rahman’s evidence. He denied assaulting Aurora or admitting to Ms. Gomes that he had done so.

He said he had limited access to Aurora and there were only two occasions in July when he was alone with the baby. The judge did not accept Mr. Rahman’s evidence. Starting at ¶286 of his decision and continuing to ¶360, the trial judge outlined in considerable detail Mr. Rahman’s evidence and other evidence that was contradictory to his evidence. The inconsistencies, denials, manipulative and argumentative manner of Mr.

Rahman all support the trial judge’s conclusion that he did not believe him nor did his evidence raise a reasonable doubt. [ 55 ] The trial judge meticulously set out in his decision the evidence he relied on in convicting Mr. Rahman. The recitation of the evidence is supported by the record. His decision is not based solely on the four incidents described by Ms. Gomes, but rather on the totality of the evidence that he reviewed in his decision. [ 56 ] He was satisfied that Ms. Gomes did not cause the injuries, and the injuries were not as a result of natural causes.

Then it was open to him, and I suggest inescapable, that Mr. Rahman caused the injuries. [ 57 ] The conclusion that Mr. Rahman caused Aurora’s injuries and death does not result from a misapprehension of the evidence but is fully supported by the evidence of Ms. Gomes, the medical experts and Mr. Rahman’s evidence itself. [ 58 ] One instance in which the trial judge may have misapprehended the evidence is in his conclusion that the fractures to Aurora’s arms and legs were caused by Mr. Rahman on the July 15, 2009, incident (¶363). [ 59 ] The evidence of Dr.

Wood was that she could not date the fractures but that the injuries to her arms and legs were too well healed to have occurred on July 15, 2009. The trial judge’s conclusion that the incident of July 15, 2009, caused the injuries is contrary

to uncontradicted evidence. [60] However, in my view, this misapprehension of the evidence was not essential to the verdicts. As noted above, the trial judgewas satisfied Mr. Rahman had caused the injuries, and whether the injuries occurred on July 15 or some time earlier, does not shake thefoundation of the verdicts. [61] Further, it would have no impact on the manslaughter verdict. The finding that the incident on July 15, 2009, caused theinjuries to Aurora’s legs is not material or essential to the final verdicts. [62] Mr.

Rahman’s assertion that his conviction resulted from a misapprehension of the evidence fails. I would dismiss this groundof appeal. The trial judge erred in finding Jane Gomes was credible, thereby leading to an unreasonable verdict [63] Mr. Rahman’s argument under this ground of appeal is an effort to have this Court review the record and come to a differentconclusion with respect to the credibility of Ms. Gomes. As I said earlier, the credibility of a witness is a question of fact and we will notinterfere unless the finding of credibility cannot be supported on any reasonable review of the evidence. [64] Mr.

Rahman parses the evidence in an effort to convince us that the trial judge’s assessment of Ms. Gomes’ evidence andcredibility is not supported by the record. He argues the trial judge erred by convicting the appellant of manslaughter and aggravatedassault based on Ms. Gomes’ evidence. [65] Once again Mr. Rahman misses the point. He was not convicted solely on the evidence of Ms. Gomes, but rather on the totalityof the evidence. [66] The trial judge was alive to the dangers of accepting Ms. Gomes’ evidence.

He cautioned himself as follows: [251] Having been proven to have lied before, this Court should be very cautious in accepting her evidence concerning what shealleged Mr. Rahman did or told her he did to Aurora. I have repeatedly and carefully reviewed her evidence and that of Mr. Rahman inpreparing this decision. [67] The trial judge details the instances where Ms. Gomes lied. He then explains why he accepted her as credible: [257] Ms. Gomes' background appears to explain the poor choices she made. Ms. Gomes wanted to establish a family with Mr.Rahman and their child. She trusted Mr. Rahman and loved him.

She also defended Mr. Rahman. [258] Ms. Gomes did not appear to be vengeful when testifying. Her testimony was balanced. It acknowledged that there wereoccasions when Mr. Rahman assisted her with Aurora, that Mr. Rahman seemed to love the baby by saying how cute she was and that attimes he even held Aurora. [259] Ms. Gomes was not argumentative in answering questions. On the other hand Mr. Rahman argued, answered questions with hisown questions, and appeared to be tailoring his evidence to conform with the evidence presented at trial. [260] None of the lies Mr. Gomes told were in relation to what she alleged Mr.

Rahman did to Aurora. All her lies were related toobtaining money from her parents and family so that she could continue to stay here with the man she loved. Her lies must also beviewed in the context of her cultural background where it is improper for a young woman to date let alone to cohabit and have a child outof wedlock. Ms. Gomes' trial evidence was consistent with the statement she gave to the police on August 5th, 2009. [68] This was not a situation where the trial judge ignored discrepancies in the evidence of Ms. Gomes. The determination ofcredibility is at the heart of a trial judge’s duties.

It is not a scientific exercise and cannot be attacked by isolating certain pieces ofevidence and asking us to draw inferences different than those found by the trial judge. [69] R. v. Wadforth, 2009 ONCA 716, sets out the role of a trial judge in assessing credibility: [66] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject,often defying precise and complete verbalization.

At bottom, belief of one witness and disbelief of another, in general or on a specificissue, is an alloy of factors, not a purely intellectual exercise: M. (R.E.) at para. 49; R. v. Gagnon, 2006 SCC 17 , [2006] 1S.C.R. 621, at para. 20.

The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in theresult in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations ofscientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening towitnesses and attempting to reconcile their renditions of critical events: Gagnon at para. 20. [67] No uniform standard of detail exists by which we can determine the sufficiency of reasons that describe findings on credibility.The degree of detail required to explain these findings will vary with the evidentiary record and trial dynamics: M. (R.E.) at para. 51.Findings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to thecontradictory evidence.

In the end, the detail provided must demonstrate that the trial judge has seized the substance of the issue in thecase tried. While no detailed account of all conflicting evidence is mandated, in a case where credibility is critical, the trial judge mustdirect his or her mind to the decisive question of whether the accused's evidence, considered in the context of all the evidence adduced attrial, raises a reasonable doubt about the accused's guilt: R. v.

Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at paras. 23 and 30;M. (R.E.) at para. 50. [70] The trial judge was acutely aware of the credibility controversy in this case, set forth the conflicting evidence, and provided hisreasons for accepting the evidence of Ms. Gomes.

[ 71 ] In conclusion on this issue, we owe great deference to the trial judge in determining issues of credibility. I am not even remotely persuaded that the trial judge committed any error in assessing the credibility of Ms. Gomes. To the contrary, his reasoning provides sound, logical explanations for accepting her evidence. [ 72 ] I would dismiss this ground of appeal. The trial judge erred in finding Mr. Rahman guilty of manslaughter when the evidence raised a reasonable doubt about the cause of Aurora’s death. [ 73 ] The crux of Mr.

Rahman’s argument in this part of his appeal is that there must have been a reasonable doubt regarding the cause of Aurora’s injuries and death. With respect, this is another example of Mr. Rahman attempting to isolate pieces of evidence to establish that there was an alternative non-violent explanation for each of the injuries to Aurora including her fatal injury. [ 74 ] Mr. Rahman appears to be of the view that the Crown has a burden of proving the mechanism of death beyond a reasonable doubt. This is not unlike the argument which was rejected in R. v. Stewart , 2003 NSCA 150 .

Justice Oland, writing for this Court, held: [30] While he acknowledged that the Crown is not required to meet a standard of absolute certainty, the appellant suggested that the evidence of the Crown's medical experts was insufficient to convict because the Crown had not proved the mechanism of how Brandy was killed. I reject any such suggestion.

In my view, the burden on the Crown to persuade the trial judge beyond a reasonable doubt does not include a requirement that the precise mechanism be established, only that the death resulted from an unlawful act which led to the injuries which caused death . [31] I also reject the appellant's suggestion that the criminal law standard of proof beyond a reasonable doubt cannot be met whenever expert witnesses are not on all fours on every aspect of their opinions or where the medical opinion evidence is anything less than absolute .

The Crown's factum responded neatly to this argument as follows: Legal reasoning does not require absolute certainty concerning the elements of the offence, and the absence of reasonable doubt does not require a foundation of absolute certainty in the evidence. What intervenes between the evidence and the verdict is the Court's assessment of how the evidence in its totality stacks up and whether this composite assessment admits of reasonable doubt in the judicially trained mind. This is not a mechanical translation from evidence to verdict. It is an inductive and common sense process, guided by experience.

It is experience, not deductive reasoning, which is the life of the law. To give effect to the appellant's submission would result in the imposition of a requirement that witnesses, whether lay or expert, be unanimous in their version of events or opinions before a guilty plea could ever be entered. This is not possible in many cases and it is precisely the role of the trial judge to assess the evidence and whether the Crown has persuaded her beyond a reasonable doubt. [32] In

summary on this ground I do not agree that the trial judge, in reaching her decision, failed to apply the burden of proof properly. [Emphasis added] [ 75 ] Similarly, in this case, it is not necessary for the Crown to establish the precise mechanism by which Aurora died but rather that her death resulted from an unlawful act which led to the injuries which caused death. [ 76 ] That is precisely what the trial judge did in his decision. I previously reviewed the medical evidence in some detail under the first ground of appeal.

I will not review that evidence further other than to say that it applies equally to this ground of appeal. The trial judge carefully reviewed that evidence and concluded: [241] ... I am also satisfied beyond a reasonable doubt that Aurora died as a result of non-accidental trauma (abusive head trauma). ... [ 77 ] My analysis under the first ground of appeal is sufficient to dispose of Mr. Rahman’s argument on this issue. [ 78 ] However, I will address some of Mr. Rahman’s assertions which he says give rise to a reasonable doubt. In doing so I adopt much of the Crown’s argument in its factum.

External Signs of Trauma [ 79 ] Mr. Rahman says that there were no external signs of trauma. This, somehow, he says, must raise a doubt. His submissions, however, are in direct contradiction to the evidence at trial. The experts consistently stated that the lack of external signs of trauma did not foreclose the conclusion of abusive trauma. In fact, the opposite may be true. [ 80 ] Dr. Norman, in giving his evidence, addressed the issue of the lack of external signs of trauma: Q. Anything else in those photographs of clinical significance to you? A.

I think it -- well, the thing that's significant to me is that you have a seven week old child at the time that has no external -- no external marks or any sort of external injury, and I think that's very significant. Q. How so? A. Because if a trauma, accidental trauma occurred, you know, it's very common to see external marks.

Q. How about for non-accidental trauma? A. It's very common not to see external marks. [81] Dr. Bellemare gave evidence to a similar effect: Q. And so your conclusion about the most likely mechanism that would have caused the rib fractures that you saw is what? A. An inflicted injury. Q. And an inflicted injury how? A. Most likely by squeezing of the chest. And I base myself on the fact that we do have a number of posterior rib fractures whichare known to occur from that mechanism. That is not to say that there wasn't an additional injurious mechanism of some sort, like adirect impact to the ribs. Q.

And with that kind of mechanism or those potential mechanisms would you expect to see outward signs or symptoms? A. Typically they don't, in fact. So it's unusual to see bruising on the skin in children who have broken ribs. Q. Why is that? A. That's because there's not necessarily enough trauma put on the skin to cause it to bruise.

The ribs can break anywhere alongtheir length when the chest is squeezed, so the point of application of force doesn't correlate with where the rib is broken necessarily,other than, for instance, when you're dealing with a posterior rib fracture. [82] Finally I will refer to the evidence of Dr. Wood in cross-examination by Mr. Rahman’s counsel where the following exchangetook place: Q. Yeah. One of the difficulties that people such as yourself and your profession have had over the years with respect to the impactissue is sometimes there can be no actual evidence of external injury? A.

In any individual, most especially children because their skin and vessels are especially healthy and elastic, it's possible to imparta blunt force to the skin, injure underlying tissues but not leave a bruise on the skin. [83] Mr. Rahman’s suggestion that the lack of external signs of trauma are indicative of some other cause of death other than bluntforce trauma flies in the face of the expert testimony at trial including evidence elicited by his own counsel. Fresh Fractures [84] The appellant indicates that fresh fractures were not picked up on x-ray or CT or bone scans.

He somehow suggests that thismust mean that there was some unknown bone defect suffered by Aurora which would provide an innocent explanation regarding herfractures. [85] Again, this is contrary to the medical evidence. The visibility and dating of the fractures was the subject of much discussion attrial. The lack of bone disease was, likewise, canvassed (see evidence of Dr. Wood, ¶46 above). [86] The appellant's suggestion of an undiagnosed bone defect is pure speculation. Cases are to be decided on the evidence and noton speculation (see Wild v. The Queen, (SCC), [1971] S.C.R. 101 at p. 119).

Retinal Haemorrhaging [87] The appellant is correct when he says that Dr. Wood did not rely on the presence of retinal haemorrhaging in her assessment ofthe cause of death. This does not mean that the trial judge was not allowed to utilize this evidence in his conclusions. This isparticularly so in light of the fact that the presence of retinal haemorrhaging was agreed upon by Drs. Wood, Macaulay, and Halliday. Indeed, Dr. Macaulay confirmed that the presence of retinal haemorrhages is a common pathology in young children and infants wherethere is known trauma.

It would be part of the "classic triad of intentional trauma". [88] Dr. Bellemare also drew a link between retinal haemorrhaging and abusive trauma. [89] It was open to the trial judge to use this evidence in determining the cause of death. Bulging Fontanelle [90] The appellant argues the bulging fontanelle cannot be conclusive. [91] The evidence with respect to the bulging fontanelle is quite specific. There was uncontroverted consensus that the fontanellewas considered to be "bulging" - not necessarily visually, but tense to the touch.

Moreover, the timing of an injury regarding a bulgingfontanelle was discussed at length. For the trial judge, the point was that the timing of the bulging fontanelle vis-à-vis the 911 callindicated brain injury which preceded the cardiac arrest but was within twenty-four hours of admission to hospital. [92] It was another piece of evidence considered by the trial judge in reaching his conclusion. By itself it may not have beenconclusive but it was not the only evidence relied on by the trial judge. Low Haemoglobin

[ 93 ] The appellant says a cardiac arrest can cause low haemoglobin. The evidence at trial, rather, was that the haemoglobin was low as a result of a bleed to the brain. [ 94 ] Again, Mr. Rahman relies on speculation rather than the actual evidence before the trial judge in trying to argue a reasonable doubt. Lack of Cerebral Scars and Brain Stem Injury on MRI [ 95 ] The appellant questions the existence of cerebral scars or brain stem injury, because they were not detected on an MRI.

The appellant notes that the measurement of the scars were one-tenth of a millimetre. [ 96 ] The appellant ignores the testimony of Dr. Halliday which suggests that these scars become apparent over time. More importantly, he ignores the fact that the cerebral scars and brain stem injury were discovered upon microscopic examination. Contusional Tears, HIE, Lack of Signs of Application of Force [ 97 ] The appellant argues there is a lack of indicators that might otherwise be seen with applications of force. This, with respect, ignores the evidence.

Contusional tears are noted to be related to blunt force injury. [ 98 ] Dr. Halliday brought everything together quite nicely in his testimony. He indicated that traumatic lesions are well-known and appreciated. He added that with subdural haemorrhages, subarachnoid haemorrhages, contusion tears, HIE and infarction, "it's starting to sound like you have essentially a textbook of abusive head injury". This, according to Dr. Halliday, was because one can pull the eight findings in this case together to get an idea of the whole picture. As noted earlier, Dr. Macaulay, the defence expert, agreed with Dr. Halliday.

HCM [ 99 ] The appellant continues to assert that his daughter died of HCM, a heart defect. He goes so far as to assert that the "sudden collapse" of Aurora was consistent with those children who die from a similar injury. However, this was not the evidence. [ 100 ] The evidence of Dr. Bellemare and Dr. Wood indicated that, even without HCM, a child with Aurora's neurological condition would have died in the same fashion. The chain of events, according to Dr. Wood, was that the brain injuries caused swelling which caused pressure on the brain stem.

This caused respirational difficulties which, in turn, caused cardiac difficulties which lead to a lack of oxygen to the brain and ultimate collapse and death. [ 101 ] Dr. Wood's conclusions were informed by the presentation of Aurora. There was "hiccupping" observed, and a lack of total cardiac failure. It was contrary to a sudden, unexpected cardiac death. The presentation that resembled hiccupping was respiratory failure. [ 102 ] Dr. Bellemare's acknowledgment that he could not rule out a sudden collapse from HCM was not based on the whole of the evidence presented to him.

It was based on a hypothetical, with particularly sterile facts, put to him in cross-examination. [ 103 ] Finally, Dr. Chen was asked a number of questions regarding scenarios of a sudden cardiac event leading to hospitalization from HCM. His evidence was that the presentation and treatment of Aurora was inconsistent with sudden death from HCM. [ 104 ] None of the arguments made by Mr. Rahman leads me to conclude that the trial judge somehow misapprehended the evidence which would give rise to a reasonable doubt. [ 105 ] In this appeal, Mr.

Rahman is asking this Court to review the record and to substitute our findings for those of the trial judge; that is not our role. I would dismiss this ground of appeal. Conclusion [ 106 ] The trial judge’s conclusions are sound and amply supported by the evidence. I would dismiss the appeal. Farrar, J.A. Concurred in: Oland, J.A. Fichaud, J.A.