R. v. Rahman, 2012 NSSC 235

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Rahman, 2012 NSSC 235 Date: 20120622 Docket: CRH 330049 Registry: Halifax Between: Her Majesty the Queen v. Ashiqur Rahman Judge: The Honourable Justice Felix A. Cacchione Heard: November 14-18, 21-25, 2011; December 7-9, 12-13, 19, 2011; January 3-5, 24, 2012; April 23-25, 2012; June 22, 2012 in Halifax, Nova Scotia Written Decision: June 27, 2012 Counsel: Denise C. Smith and Mark Heerema, for the Crown Donald C. Murray, Q.C., for the Defence By the Court : (Orally) [ 1 ] Ashiqur Rahman (Mr. Rahman) is charged with manslaughter and aggravated assault in relation to the death of his seven week old daughter Aurora Breakthrough (Aurora).

[2] The Court here is concerned with an alleged offence that is particularly distasteful and cruel in nature. The alleged death, byviolence, of a seven week old infant is an event which by its very nature is calculated to excite emotions of shock and indignation. Insuch a situation special care must be taken to see that the trial is not marred by the improper creation of an atmosphere of prejudice andhostility. [3] The Court must also carefully scrutinize for bias the medical and other evidence concerning the events which precipitatedthis trial.

Care must be taken to ensure that any recollections, opinions and inferences drawn by witnesses when relating events thatoccurred in the past are based on personal observations and medical or scientific facts and not influenced by any improper motives. [4] The Court is well aware of the dangers associated with blindly accepting a Medical Examiner’s report as to the cause ofdeath. The Court is cognizant, as well, that the standard of proof in medical terms is very different than that applied in a criminal trial.

The opinions of all the experts who testified must be closely scrutinized to ensure that they are based on documented facts. [5] The prosecution’s case rests on the Court’s acceptance of the medical evidence presented as proving beyond a reasonabledoubt that Aurora died as a result of non-accidental trauma (abusive head trauma), and the acceptance of Jane Gomes’ (Ms. Gomes)evidence that she witnessed and was told of instances of physical assaults on Aurora by Mr. Rahman, as reliable, credible and truthful. [6] The burden of proof rests with the prosecution and never shifts to Mr. Rahman. Mr.

Rahman has no obligation to prove hisinnocence or to disprove the evidence lead against him. [7] The Court can accept all, some or none of a witness’ evidence. Inferences can only be drawn from proven facts. The Courtcannot draw an inference if there are no facts from which an inference can be drawn. If it did so it would be speculating which isimpermissible. [8] With respect to the offence of manslaughter, the law is clear that for

an act to “cause” the death of a human being it must beat least a contributing cause of the death, that is beyond the trifling or minor range: R. v. Smithers, (SCC), [1978] 1S.C.R. 506 at pp. 518-520. [9]

Section 226 of the Criminal Code states: Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstandingthat the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause. [10] It is irrelevant that an accused only hastened the death of the deceased who was already suffering from some pre-existingdisease or condition: R. v. Munro and Munro (1983), (ON CA), 8 C.C.C. (3d) 260 at pp. 290-291 (Ont. C.A.); R. v.Talbot (2007), 2007 ONCA 81 , 217 C.C.C. (3d) 415 at p.437 (Ont. C.A.).

The “thin-skulled” civil law doctrine also operatesin criminal law such that “one who assaults another must take his victim as he finds him”: R. v. Smithers, supra at pp. 521-522. [11] Liability for manslaughter is premised upon “objective foresight of bodily harm”. An accused may properly be found guilty of“unlawful act” manslaughter where he commits an unlawful act which is such that a reasonable person would inevitably realize that suchunlawful act must subject another person to at least the risk of some harm, albeit not serious harm, and that death ensues as theunintended consequence of that act: R. v.

De Sousa (1992), (SCC), 76 C.C.C. (3d) 124 (S.C.C.); R. v. Creighton(1993), (SCC), 83 C.C.C. (3d) 346 (S.C.C.); R. v. Gosset (1993), (SCC), 83 C.C.C. (3d) 494 (S.C.C.). [12] In R. v. Sinclair (2008), 2008 MBCA 15 , 229 C.C.C. (3d) 485 (Man.C.A.) Scott C.J.M. wrote at para. 25:

But "objective foreseeability is objective foreseeability of the risk of bodily harm in general, not of a specific type of harm." ... Theunlawful act must be objectively dangerous; foreseeability of the risk of death is not required... As noted by Sopinka J. in De Sousa,“One is not normally innocent simply because a particular consequence of an unlawful act was unforseen by that actor”... [13] In R. v.

Maybin, 2012 SCC 24, decision released by the Supreme Court of Canada on May 18th, 2012 Justice Karakatsaniswrote at para.1: The causal link between an accused's actions and the victim's death is not always obvious in homicide cases. In cases involving multiplecauses of death or intervening causes between an accused's action and the victim's death, determining causation is more challenging.

Anaccused's unlawful actions need not be the only cause of death, or even the direct cause of death; the court must determine if theaccused's actions are a significant contributing cause of death. [14] After citing the general principles of causation for manslaughter set out in Smithers v. The Queen, (SCC),[1978] 1 S.C.R. 506, and R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 Justice Karakatsanis concluded by stating at para. 60: Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility formanslaughter.

These approaches grapple with the issue of the moral connection between the accused's acts and the death; theyacknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation, and that anindependent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. In my view, theseapproaches may be useful tools depending upon the factual context. However, the analysis must focus on first principles and recognizethat these tools do not alter the standard of causation or substitute new tests.

The dangerous and unlawful acts of the accused must be asignificant contributing cause of the victim's death. [15] Aggravated assault is committed when an accused wounds, maims, disfigures or endangers the life of the complainant. Wounding requires a breaking of the skin. To maim means to inflict an injury that deprives a person of the use of any limb or member ofthe body or renders the person lame or defective in bodily vigour. To disfigure means to impair or injure a person’s appearance in morethan a temporary manner.

To “endanger the life of” means to place a person’s life in peril or risk. [16] In relation to the offence of aggravated assault the basic underlying actus reus for any form of assault is set out in s.265(1) ofthe Criminal Code. The applicable

section is 265(1)(a)which reads: A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly. [17] The strength of the force used is immaterial. [18] The mens rea for aggravated assault is an objective foresight of bodily harm. It is not necessary that there be an intent towound, maim or disfigure. The

section pertains to an assault that has the consequences of wounding, maiming or disfiguring. R. v.Godin (1994), (SCC), 89 C.C.C. (3d) 574 (S.C.C.). [19] The indictment, as drafted, does not particularize a specific action. Based on the evidence presented, I find that the acts of wounding, maiming or disfiguring are not applicable. The act of endangering the life, however, is applicable and will be considered. [20] R. v.

E(A) (2000), (ON CA), 146 C.C.C. (3d) 449 the Ontario Court of Appeal held that an infant’simplied consent is limited to conduct that is consistent with the purpose and rationale underlying the policy basis for consent. The Courtruled there is no deemed consent unless the force is used to care for the child and where the force exceeds what is reasonable in thecircumstances, where it is clearly beyond the ordinary norm of parental conduct, there is no deemed consent.

[ 21 ] Four separate events form the basis of this prosecution. They are founded on the evidence of Ms. Gomes. [ 22 ] Ms. Gomes testified about four instances where force was allegedly used on Aurora by Mr. Rahman. Two of these were events which Ms. Gomes allegedly witnessed and two were events which were allegedly related to her by Mr. Rahman. [ 23 ] Ms. Gomes also testified that Mr. Rahman was physically and verbally abusive to her. She testified that on June 10 th , 2009 Mr. Rahman grabbed her hair; on July 15 th , 2009 he pushed her and she fell and; on July 22 nd , 2009 he slapped her. [ 24 ] Ms.

Gomes denied ever harming Aurora. [ 25 ] The following are the four events of alleged violence against Aurora as related by Ms. Gomes. [ 26 ] The first event occurred on June 29 th , 2009. The family was out of groceries. Ms. Gomes decided she would purchase groceries. She fed Aurora, put her to bed and then went to the grocery store. Ms. Gomes was gone approximately two hours. When she returned the child was still asleep but was not in her bed instead she was in theirs. She testified that Mr. Rahman told her that Aurora woke up about 20 minutes after Ms.

Gomes had gone and would not stop crying, so he slapped her. Ms. Gomes said that he looked sorry. Mr. Rahman told her that he had slapped Aurora on the cheeks and advised Ms. Gomes that he had not hurt the child. He apologized for what he did. [ 27 ] On July 7 th the family received an invoice from the Isaac Walton Killam Children ’ s Hospital (IWK) for Aurora ’ s birth and stay at the hospital. Mr. Rahman was upset that the family still did not have provincial health care coverage and was facing a large hospital bill. Aurora was crying. Ms. Gomes picked her up and fed her, but Aurora did not feed very well. Ms.

Gomes put Aurora down and then Mr. Rahman picked her up, cradled her and then put her down. Aurora continued crying. Mr. Rahman then slapped her across the face once with the palm of his hand and once with the back of his hand. Aurora cried even louder, but after being fed she went to sleep. Ms. Gomes checked Aurora and noticed no bruises or marks. Mr. Rahman denied that he had hurt Aurora. Mr. Rahman said he was really sorry and would not do it again. [ 28 ] On July 15 th Ms. Gomes woke because Aurora was crying. Her crying then woke Mr. Rahman as well. Ms. Gomes noticed that Aurora needed a diaper change.

Usually during diaper changes Mr. Rahman would hold Aurora ’ s arms while Ms. Gomes changed the diaper. On this day, however, he grabbed Aurora ’ s arms and legs and firmly shook her back and forth three or four times. Her head was not lifted from the bed. Mr. Rahman complained that Aurora was crying too much. He appeared angry. [ 29 ] On July 22 nd Aurora was not very settled. She was crying a lot all morning and not sleeping. Ms. Gomes was preparing lunch. She had put Aurora in her stroller. Mr. Rahman told Ms. Gomes to put Aurora on her bed but she refused to do so. Ms.

Gomes then went to the washroom and was gone for two or three minutes. When she returned Aurora was no longer in the stroller but instead was on the bed and not crying. She asked Mr. Rahman what he did. He said nothing. He then allegedly said “ See, I told you she would be better on her bed ” . Ms. Gomes picked up Aurora and noticed that her eyes were half open. She fed her and that seemed to go well. Aurora then went to sleep. [ 30 ] Ms. Gomes testified that on July 23 rd , 2009 Aurora did not seem her normal self. She had to be woken to be fed, did not cry and did not seem totally awake when being fed.

That morning Mr. Rahman went out to buy a laptop. In the afternoon Ms. Gomes went to the post office to mail their visa applications and then to the IWK to drop off Aurora ’ s birth registration. She was gone for approximately two to two and a half hours. When she returned Aurora was asleep. Mr. Rahman told Ms. Gomes he had fed Aurora but that she did not seem really awake. After supper Ms. Gomes had to wake Aurora again to feed her. She fed well at that time. Later that evening Ms. Gomes noticed that Aurora was having difficulty breathing. She called the clinic but no doctors were available. Mr.

Rahman then told her to call 911, which she did. The 911 operator told her how to perform CPR. She relayed the information to Mr. Rahman. He performed CPR on Aurora. Paramedics arrived and took Aurora to the hospital. [ 31 ] Mr. Rahman testified. He denied the allegations of Ms. Gomes that he assaulted Aurora in her presence or told Ms. Gomes that

he had. He denied assaulting Ms. Gomes. He testified that he had limited contact with Aurora as Ms. Gomes was the primary caregiver. His evidence was that, save for the times Ms. Gomes was in the washroom, he was never alone with Aurora in the month of June. His evidence was that Ms. Gomes never left the residence in June and was only out twice in July, once mid-month and again in the afternoon of July 23 rd , 2009. These were the only times he was alone with Aurora. [ 32 ] Mr. Rahman testified that he never saw Ms. Gomes either squeezing or shaking Aurora.

He had no idea how the injuries to Aurora could have occurred. He denied that Ms. Gomes ever threatened to leave him. [ 33 ] The position of the defence is that there is no direct or circumstantial evidentiary basis upon which to conclude that there must have been a shaking event on July 23 rd , 2009 sufficient to induce a brain injury and cause the collapse of Aurora. There is no evidence offered by the Crown or demonstrated by the medical opinion of a mechanical brain injury within four days of her death. [ 34 ] The defence also states that there is no evidence of any unlawful act by Ms. Gomes or Mr.

Rahman sufficiently proximate to the time of Aurora ’ s collapse on July 23 rd to conclude beyond a reasonable doubt that the collapse was as a result of inflicted trauma. [ 35 ] The defence argues the fact that Aurora was still feeding well a half hour before her collapse fits in with Dr. Chen ’ s opinion of a sudden cardiac event. [ 36 ] The defence states that if the July 23 rd incident could have been a cardiac arrest, then no crime has been committed. It submits that the Court will have to decide if Ms. Gomes is telling the truth.

The defence points to her documented history of lying and scheming and that Ms. Gomes was the exclusive caregiver for the first two weeks of Aurora ’ s life, therefore she had equal if not greater opportunity to inflict harm on Aurora than did Mr. Rahman. It suggests that it would be unsafe to convict on the basis of her evidence. [ 37 ] With respect to the charge of aggravated assault the defence submits that osteogenesis imperfecta (OI), a bone disorder which demonstrates itself by bone fragility is a collagen disorder.

While the appearance of Aurora ’ s bones and genetic testing did not suggest the diagnosis of OI, available tests to confirm or eliminate the diagnosis of OI were not completed. [ 38 ] The defence states that the oldest rib injuries were approximately four weeks old and are consistent with a rolling over onto Aurora when the parents were co-sleeping. [ 39 ] It is submitted that the wrist injury is of unknown cause and would have involved a breaking of the bone in the perinatal period.

This injury is older than the hard callous rib injury and therefore would likely have occurred within the first two weeks of Aurora ’ s life when Mr. Rahman did not have any opportunity to inflict injury to the child except perhaps unconsciously during the course of co-sleeping. [ 40 ] Regarding the long bone injuries the defence states that these do indicate some level of non-accidental force within a few weeks of the child ’ s death. It submits, however, there has been no evidence from Ms. Gomes suggesting any behaviour by Mr. Rahman which would cause such injury. [ 41 ] The defence argues that Ms.

Gomes never testified regarding any acts of Mr. Rahman ’ s that could cause death or endanger Aurora ’ s life. The defence questions her credibility, reliability and trustworthiness. It states that if Ms. Gomes believed Mr. Rahman was harming Aurora there was no reason for her to stay with him or to leave Aurora with him for two and a half hours. It states that Ms. Gomes is motivated to tell the story she did in order to exculpate herself from the situation she found herself in. [ 42 ] The defence contends that there is no medical basis upon which to calculate how many shaking events occurred to Aurora.

The neurological evidence would simply support some shaking induced brain trauma on more than one occasion with the earliest likely predating the time when Mr. Rahman would have had exclusive opportunity to inflict the injury (June 29 th , 2009).

[ 43 ] The position of the prosecution is that Ms. Gomes was a credible and truthful witness whose evidence as to what she witnessed Mr. Rahman doing and what he told her he had done should be accepted. It submits that the medical evidence conclusively establishes that Aurora ’ s injuries were as a result of non-accidental trauma and not the product of an undiagnosed, untreated pre-existing medical condition. [ 44 ] The evidence establishes that on July 23 rd , 2009 paramedics attended the residence of Mr. Rahman and Ms. Gomes in response to a call of a child not breathing.

They arrived at approximately 10:20 p.m. and found Aurora to be unresponsive, not breathing, and without palpable cartoid pulse. They performed CPR. When Aurora ’ s heart rate was monitored it showed a heart rate of 42 beats per minute which was described as pulseless electrical activity. This indicated that there was electrical activity in the heart, but not enough to get a pulse or a heart rate. [ 45 ] Aurora was transported to the IWK at 10:25 p.m. and arrived there at 10:30 p.m. [ 46 ] Dr. Brian Norman was the internist in the paediatric intensive care unit who treated Aurora.

He trained as an anaesthesiologist with special training in paediatric critical care anaesthesiology. He also had training in cardiac functioning and respiration. He has had training in injuries related to trauma but testified that when it comes to non-accidental trauma he has to rely on others. His primary role was to stabilize the child and once that was done then to attempt to determine whether the cause was accidental or non-accidental. [ 47 ] On July 23 rd he attended the IWK for an emergency. He examined Aurora and determined upon seeing her that she was critically ill with severe neurological problems.

He noted her arms were flexed out with her hands rotated out and her legs were straight out. Her eyes were fixed and her pupils were dilated. Aurora was in a deep unresponsive coma. Her hemodynamics were stable and she had adequate blood pressure and heart rate. [ 48 ] He observed a bulging fontanelle which was very tense. This indicated to him there was intense pressure on the brain caused by an injury to the brain and that this injury would have happened within the previous 24 hours.

Although Aurora ’ s fontanelle was bulging, that in itself did not give an indication of when the injury occurred. [ 49 ] He could not tell how long she had been in cardiac arrest, but because staff at the hospital were able to quickly regain heart rate and blood pressure, this lead him to believe that the cardiac arrest had not lasted very long. [ 50 ] A complete blood count test showed that there was a significant loss of blood and he saw no external injuries to account for this. His evidence was that cardiac arrest could cause bleeding in the brain but he had never seen it or heard of it.

His opinion was that a cerebral bleed caused by cardiac arrest would not account for the amount of blood loss he noted. [ 51 ] His first differential diagnosis for the possible cause of the brain injury was that the injury was due to cardiac arrest. Before any diagnostic imaging of the brain was done, he believed that the brain injury had occurred prior to the cardiac arrest. The other differential diagnoses were trauma, either accidental or non-accidental followed by an infectious cause, a metabolic cause or a congenital malformation of the brain. [ 52 ] Dr. Norman was present when the brain scan was conducted.

He knew it was a bad CT scan, even before receiving the radiologist ’ s report, because he could see areas within the brain that had a collection of blood which appeared to be subdural. The ventricles were squished together which indicated to him that the brain was exerting pressure on itself. The brain scan showed both old and new subdural bleeds.

The fact that this was a seven week old child with no visible external signs of injury lead him to believe that the subdural bleeding was caused by non-accidental trauma. [ 53 ] As a result of the CT scan the Child Protection Services team (CPS) was called in. [ 54 ] He spoke to the parents. Ms. Gomes cried hysterically and Mr. Rahman showed no reaction. Dr. Norman asked questions

about what might have happened in the previous day or two. Mr. Rahman asked if shaking the child would cause these injuries. Dr. Norman asked him what he meant by shaking and Mr. Rahman demonstrated the shaking as cradling a child in arms to soothe it. Mr. Rahman also asked if a new stroller could have caused the injuries. [ 55 ] Dr. Norman determined that a withdrawal of care was appropriate due to the severity of Aurora ’ s injuries.

As a result, multiple tests such as bone scans, magnetic resonance imaging (MRI), skeletal surveys, genetic and metabolic testing, electroencephalograms, cardiograms and ophthalmological studies were ordered to determine if Aurora could be an organ donor. [ 56 ] The echocardiogram was “ a bit of a surprise ” since it showed hypertrophic cardiomyopathy (HCM), a condition of the heart. [ 57 ] Dr. Norman ’ s evidence was that after the initial intervention by doctors, Aurora ’ s heart was fully recovered from whatever insult had occurred but not from HCM. [ 58 ] Dr.

Norman testified that the cause of HCM can be metabolic, genetic or in vitro exposure to certain things. He related the risks associated with HCM as being a sudden cardiac arrest which would be seen as a sudden collapse. Typically there would be no overt signs of such a collapse. He had never heard of a situation where a child with HCM who suffered a cardiac arrest, which caused a brain injury, had recovered without medical intervention. [ 59 ] He could not rule out HCM as a cause for Aurora ’ s cardiac arrest.

Cardiac arrest, according to him, could be caused by an infliction of trauma to the brain, damage to the brain or HCM. The presence of HCM however, did not explain to Dr. Norman the numerous fractures which were present. [ 60 ] The ophthalmological study showed retinal hemorrhaging. The pattern of this hemorrhaging could also be seen in other diseases not only in those associated with trauma. [ 61 ] He noted multiple rib fractures, some of which were older than others. A significant amount of force would be needed to cause these rib fractures according to Dr.

Norman. [ 62 ] The MRI ’ s confirmed multiple subdural hemorrhages. He indicated that when a brain has been deprived of oxygenated blood and then receives oxygenated blood there is a cascade of events with tissue breaking down and swelling. Severity of the tissue break down is an indication of the severity of injury. [ 63 ] Skeletal tests showed not only the rib fractures, but also fractures to the humerus, radius, ulna, femur, tibia and fibia. They also showed a periostal reaction.

He described the periosteum as a specialized connective tissue covering all bones of the body and possessing bone forming potentialities which if moved, as it was in Aurora ’ s case, signifies the application of force directly to the bone. Dr. Norman described this as non-accidental trauma. [ 64 ] An MRI done on July 24 th showed extensive multicystic encephalomalacia (MCE) involving both hemispheres of the brain. This was an indication that brain tissue had died. Dr. Norman ’ s evidence was that this finding was not something one would see as a result of cardiac arrest.

He was of the view that the cystic encephalomalacia had been going on for awhile and that it would not have been seen by a nurse doing a regular “ well baby check up ” . [ 65 ] Cardiac arrest can cause swelling of the brain. His evidence was that any swelling attributed to cardiac arrest would not explain the entire swelling he saw. [ 66 ] According to Dr. Norman it is possible that CPR itself would cause subdural bleeds, but he did not believe that it would cause them in the quantity or location seen by him.

[ 67 ] On the totality of what he saw Dr. Norman believed that Aurora had sustained injuries which were non-accidental trauma. [ 68 ] I accept the evidence of Dr. Norman. [ 69 ] Dr. Steven Bellemare was qualified as an expert in paediatrics with a special expertise in child maltreatment and injury and the

interpretation as well as diagnosis of child maltreatment and injury. [ 70 ] Dr. Bellemare was certified as a specialist in paediatrics in 2004. The focus of his clinical endeavours was with respect to cases of child maltreatment and neglect. He testified about his recurring commitment to educate people about recognizing abuse where it might not otherwise be recognized. He testified about his concern that abuse can happen, but not be recognized. [ 71 ] Dr. Bellemare worked at the IWK on the CPS team from 2004-2009.

Since 2009 he has not updated his certification in paediatrics and no longer works in paediatrics or child maltreatment. He now works with the Canadian Medical Protective Association on medical legal issues. [ 72 ] A diagnosis of abusive head trauma is made by the CPS team. [ 73 ] The CPS team was mobilized within eight hours of Aurora ’ s admission to the hospital. [ 74 ] He first saw Aurora on July 24 th at 8:30 a.m. Later that morning at 9:00 a.m. Dr.

Bellemare advised the provincial child protection authorities of his concerns regarding abuse and told them that arrangements should be made for end of life care. By 3:00 p.m. that same day Aurora had been taken into the care of the Department of Community Services (DCS) and the police had been advised of Dr. Bellemare ’ s opinion that this was a case of child abuse. [ 75 ] There were no records of any previous admission to the IWK which could account for some of the injuries seen. [ 76 ] Because Aurora had suffered a brain injury he sought consultations from both the neurology and opthamalogy departments. Dr.

Bellemare knew that retinal hemorrhaging could be caused either by the infliction of trauma or the result of an accident. He also consulted with a cardiologist. A geneticist was also involved. He asked the geneticist to specifically look for reasons that could be attributed to her heart condition or any metabolic disease that could render her susceptible to easily broken bones or internal bleeding. [ 77 ] Dr. Bellemare stated that he took into consideration the opinions of the various consultants when deciding whether or not the child had been abused.

He testified that he received some initial information from the geneticist but complete genetic testing is time consuming. He therefore prepared his report without a final geneticist ’ s report but reserved the right to change his opinion when that report was ready. Dr. Bellemare did not change his opinion or the report. [ 78 ] He testified that Aurora ’ s brain was abnormally swollen and the entire brain looked as if it had lacked oxygen. He saw throughout the brain some small fluid-filled cysts which he termed abnormal. The brain stem, which controls breathing, heart rate and temperature, was not affected.

Aurora ’ s brain showed the presence of hypoxic damage. Dr. Bellemare could not say if the hypoxic damage was caused by trauma or some other cause. [ 79 ] Multiple fractured ribs were seen at the back near the spine, some on the side near the chest, and some in the front. The front ones appeared to be fresh breaks, possibly having been the result of CPR efforts. [ 80 ] He described the degree of force required to break an infant ’ s rib as being more than what would normally be associated with

child care. His opinion was that the rib fractures at the back were most likely caused by a squeezing motion. He indicated that it is possible to break the side ribs if a parent rolls over onto a child, but this would not account for the injuries to the back of the ribs. He stated that it is unusual to see bruising in infants with broken ribs hence the reason why the medical staff at the clinic did not see bruising on Aurora when they examined her. [ 81 ] He attended the autopsy. All of the arm and leg bones were examined.

All except for the left humerus demonstrated some deposition of calcium indicating that there had previously been bleeding where the calcium was seen. He noted two healing fractures on the left forearm near the wrist. These were advanced in healing and were at least four weeks old. The transverse fractures in the forearm were, in his opinion, inflicted because an infant cannot generate the amount of force required to cause such trauma. [ 82 ] Metaphyseal lesions were found near the elbow, knee and ankle. He described these as a specific type of fracture caused by sheering forces and indicative of child abuse.

His evidence was that a violent yank or twist of the bone could cause the bone to break. The metaphyseal lesions were more difficult to date. He determined these lesions to be traumatic lesions. [ 83 ] Testing of Aurora ’ s blood showed no sign of any metabolic diseases. Dr. Bellemare found Aurora ’ s bones to be normal. There was no sign of bone disease in the skeletal surveys and bone scans conducted. Tests showed that the bones appeared normal in size, thickness and density. Other testing determined proper vitamin D, magnesium and calcium levels.

The genetic and metabolic testing done gave no indication of any abnormality associated with bone disorders. [ 84 ] No specific tests were done for OI. No collagen test was done to determine if OI was a condition which Aurora had. [ 85 ] A skin biopsy was done to rule out OI. There are various forms of this disease and there are occasions when even a skin biopsy will not detect it.

The clinical examination of Aurora showed no signs suggesting the presence of this bone disease such as: the whites of the eyes being blue; the skin having an odd consistency and texture; hyper-flexible joints; or the bones appearing abnormally thin. [ 86 ] Post-mortem examination of the bones showed proper microscopic structure of the bone. Various chemistry tests were done to determine if elements such as calcium, magnesium and others which are necessary to make good bones were present.

This testing revealed no abnormalities. [ 87 ] I find, based on the clinical observations of the other doctors involved together with the blood and metabolic testing and other information available to them, that there was no basis to suspect OI. While skin biopsy testing, a costly procedure, would have definitely ruled out this condition I am satisfied that there was no basis for ordering this test. [ 88 ] Extensive blood and metabolic testing was done to determine why Aurora had intracranial bleeding. Nothing was found to suggest anything wrong with the way her blood was clotting.

Metabolic testing done to determine if any disease or defect was present which would cause intracranial bleeding detected no metabolic defects or diseases. Testing for infectious diseases known to be responsible for internal bleeding was also negative. [ 89 ] All of the above referenced investigations were done within the first 24 to 48 hours of Aurora ’ s arrival. [ 90 ] Dr.

Bellemare found no medical explanations for the fractures and lesions and tears to the periosteum. [ 91 ] The retinal hemorrhages he observed were not consistent with any medical condition known to cause such bleeding, for example meningitis or leukemia. He acknowledged there being some data indicating that such bleeding can be seen with resuscitation efforts.

However, because of the number and types of retinal hemorrhages seen, he found them to be inconsistent with CPR. [ 92 ] He ruled out birth as the possible cause for the retinal hemorrhaging he saw because: retinal hemorrhages caused by birth are usually in one location, at the back of the eye, not all around the eye as he observed; they are few in number and they generally disappear after two weeks post birth although in rare cases they can be seen up to six weeks post birth. He was unable to date the occurrence of the

retinal hemorrhaging. [ 93 ] Imaging of the brain showed the bleeding to be of two different ages. The presence of cysts in the brain was conducive with those injuries being older. His opinion was that the most recent head trauma was probably close in time to when Aurora was brought to the hospital. He believed it reasonable that she sustained a brain injury in the hours before coming to the hospital. [ 94 ] The fact that Aurora was examined on July 21 st and her fontanelle appeared normal suggested to him there was no pressure in her head at that time.

This lead him to conclude that the injury which brought her to the hospital had not yet occurred. [ 95 ] Dr. Bellemare was unable to say what the mechanism of the injury was, but did state that the degree of force required for the brain injuries he observed was more than is normal in child care. [ 96 ] The cortex and the overlying tissues of the brain were injured. These, according to Dr. Bellemare, are typical areas seen in traumatic injuries.

Meningitis, encephalitis, brain malformation and blood clots as possible explanations for the brain injuries seen were not found. [ 97 ] In his opinion HCM was not related to Aurora ’ s brain injury. He stated that the cardiac problems were not causative of the injuries seen. It was his understanding that infants with HCM typically just have sudden cardiac arrest and then stop breathing. [ 98 ] His conclusion was that Aurora ’ s injuries were typical of abusive head trauma of a baby who had been abused over time. At the time when Dr.

Bellemare reached his conclusion he had not received the results of the metabolic testing and the autopsy of Aurora ’ s heart. [ 99 ] Dr. Bellemare ’ s evidence was that forcefully slapping an infant across the face could lead to retinal bleeding without visible external bruising, and tossing an infant onto a mattress on the floor could cause the brain injuries seen in Aurora. [ 100 ] He acknowledged that it is inappropriate for someone in his position to jump to conclusions and stated he did not do so. On July 24 th he had reached the conclusion of non-accidental injury.

He wrote in his chart notes “ child maltreatment is a definite possibility ” . At trial he testified that by the time he wrote this note he had reached a conclusion of non-accidental trauma but still had to rule out other possibilities. [ 101 ] Dr. Bellemare ’ s evidence at trial, regarding Aurora ’ s retinal hemorrhage, was that he “ wouldn ’ t say it was a pattern not normally associated with shaking ” . He was referred to his evidence given under oath at the preliminary inquiry where he was called as a defence witness.

There he stated: ...This was a pattern that I termed nonspecific, if you will, in that it wasn’t the classic pattern that we see in children who are victims of inflicted traumatic brain injuries. That being said, that also doesn’t mean that they weren’t related to that. [ 102 ] Dr. Bellemare acknowledged in cross-examination that what he said at the preliminary inquiry was the opposite of what he testified to at trial. He had no explanation for that inconsistency. [ 103 ] Although Dr.

Bellemare did nothing to investigate the HCM and the ventricular obstruction, in his report he advised the DCS that the HCM and obstruction had no relationship to Aurora ’ s injuries. [ 104 ] In his report of August 27 th , 2009 to the DCS, Exhibit 8 at p.10 Dr. Bellemare wrote of Aurora ’ s sudden collapse on August

23 rd , 2009 . This typographical error suggests that Dr. Bellemare may not have read his report in detail before signing it. [ 105 ] He also stated in his report of August 27 th , 2009: The etiology of Aurora ’s fatal episode of brain hypoxia, which led to her death, cannot be made with certainty. It could have been a primarily cardiac event, a primarily neruotraumatic event, or a combination of the two (Emphasis mine). [ 106 ] At trial he said “ In my mind, the heart issue may have played a role but was not the cause of her death ” . [ 107 ] I do not accept Dr.

Bellemare ’ s evidence that he did not jump to conclusions. His conclusion of non-accidental trauma was made and disseminated to others such as the child protection agency and the police shortly after he first saw Aurora and before all testing had been completed. Inconsistencies between his evidence at trial and at the preliminary inquiry further reduces the weight I attribute to his evidence. I accept some, but not all of Dr. Bellemare ’ s evidence. [ 108 ] Dr. Robert Chen was qualified as a paediatric cardiologist. He has been working at the IWK since 1996.

His training also includes training with respect to brain injuries that follow a cardiac arrest. [ 109 ] Dr. Chen was retained by the prosecution to review Dr. Mont ’ s cardiopathological findings and the electrocardiograms. Dr. Chen reviewed as well the documentation in Exhibits 1 and 2 in preparing his opinion. [ 110 ] Dr. Chen had conducted and reviewed the results of various cardiological tests performed on Aurora when she was admitted to the hospital and during her stay in the hospital. [ 111 ] An echocardiogram is an examination of the heart using high frequency sound waves emitted by a probe.

It provides a picture of the heart as if the heart had been cut open. [ 112 ] An M-mode cardiogram is a primitive form of echocardiogram but has the advantage of having a higher spatial resolution and can measure a heart while it is beating. The importance of M-mode is to ensure that measurements taken are precise. [ 113 ] The velocity of blood flow can be measured using something called Doppler. There are two types of Doppler testing, one which measures velocity profile, and the second is a colour mapping.

Velocity profile gives the speed of blood flow and allows the cardiologist to indicate if the blood flow is disturbed. Colour mapping indicates where the disturbance is. [ 114 ] Dr. Chen used echocardiograms, M-mode cardiograms and Doppler testing to form his opinion. [ 115 ] Dr. Chen testified that there are numerous causes for HCM with the major ones being genetic disorders, neuromuscular disorders, gestational diabetes, steroid therapy or abuse of steroids and metabolic disorders. [ 116 ] Familial HCM is a genetic disorder.

It is uncommon to see this form of HCM in a child under the age of one. [ 117 ] Neuromuscular disorders, of which there are a number, account for one quarter of the HCM seen in the general population. He found it difficult to exclude Aurora as having a neuromuscular disorder and it being the cause of HCM but stated that these disorders are uncommon.

[ 118 ] Dr. Chen testified that if a pregnant woman is a diabetic or diabetes occurs during pregnancy, it is not uncommon for the fetus to develop thickening of the heart muscles. Since, in the present case, there was no pre-natal care, there was no way of determining if Ms. Gomes was diabetic or if she suffered from gestational diabetes. [ 119 ] Genetic and metabolic forms of HCM may not manifest themselves physically but are instead seen in the blood work. If there is a metabolic cause for HCM then the risk of death from sudden cardiac arrest is high. A metabolic disorder was not the cause of HCM here.

Genetic disorders were also not the cause of HCM in this case. [ 120 ] Persons with HCM need to avoid vigorous exercise or participation in sports because these activities force the heart to increase its rate and blood flow. Due to the thickness of the muscle in an HCM patient there is less blood getting to the heart which causes the heart rate to vary and increases the degree of obstruction. Trauma itself poses a problem for a patient with HCM since it is the same as vigorous exercise and increases the heart rate and lowers the blood pressure. [ 121 ] Although Dr.

Chen has dealt with children who have had hypoxic-ischemic encephalopathy (HIE) resulting from cardiac arrest, his evidence was that this is not a common occurrence. [ 122 ] His opinion was that in an infant suffering from a cardiac arrest which resulted in HIE, he would not expect the heart to recover. [ 123 ] Upon her arrival at the IWK emergency room Aurora was given an electrocardiogram which showed that her heart rate was at 152 beats per minute. Dr. Chen stated that a heart rate of 152 showed that CPR was done well, but did not mean that the patient was not hypoxic.

The first electrocardiogram he reviewed showed diffuse abnormalities in the heart. By the next day, however, the heart appeared to have recovered. [ 124 ] A notation of “ easy to resuscitate ” on Aurora ’ s chart indicated to Dr. Chen that the heart did not suffer a long period where it was not beating or suffering from interrupted blood flow. [ 125 ] On July 24 th he performed another echocardiogram which is when he recognized that Aurora had HCM. He also noted a disturbance of blood flow in the mid-cavity of the heart.

His diagnosis was HCM with an obstruction. [ 126 ] The degrees of the wall thickness were compared to normal values and Aurora ’ s were more than two and a half times above the norm. The degree of obstruction was rated as moderate to severe. [ 127 ] Dr. Chen ’ s evidence was that in vivo measurements do not necessarily correlate with the post-mortem examination measurements since at post-mortem it is not known if the heart was expanding or contracting at the time of death. Aurora ’ s heart weight measured as normal for an in vivo heart. Heart weight, according to Dr.

Chen, is not a diagnostic tool for cardiologists. [ 128 ] Myofibril disarray was found by Dr. Mont, the cardiovascular pathologist, upon microscopic examination of the heart tissue. The myofibril cells were misaligned which, according to Dr. Chen, is a pathological hallmark of HCM. [ 129 ] Dr. Chen testified that HCM is not typically diagnosed from pathology, but rather from echocardiography. [ 130 ] Dr. Chen ’ s evidence was that Aurora ’ s heart could not be said to fall within the normal range.

A pathologist could not know whether there was or was not an obstruction in the heart. [ 131 ] The obstructive form of HCM seen in Aurora is unusual in infants. This caused him to opine that she could have been an infant of a diabetic mother.

[ 132 ] Dr. Chen was of the opinion that an infant with a heart which has HCM with obstruction, who suffers trauma, is more likely to develop rhythm disorders. [ 133 ] He also indicated that a subdural bleed could occur after a cardiac event although he would not expect to see both old and new bleeds from the same cardiac arrest. [ 134 ] Dr. Chen was of the view that if there was arrhythmia which caused brain injury, the possibility of recovery from that without resuscitation would be low. He would not expect a person with a brain injury who suffered a cardiac arrest to self-correct.

The longer a person is in a state of brain injury the less likely it is that the heart will start beating again. [ 135 ] Dr. Chen testified that he could not exclude the possibility of Aurora ’ s death having been secondary to a cardiac arrest related to her underlying cardiac disorder. However, he did note that although the underlying cardiac disorder may have caused death, the cardiac disorder did not explain the other abnormalities found.

Specifically, cardiac arrest secondary to HCM would ordinarily not be associated with multiple rib fractures of varying ages or retinal hemorrhages. [ 136 ] I accept the evidence of Dr. Chen. [ 137 ] Dr. Erik Mont is a cardiovascular pathologist. His certification is in both anatomic and forensic pathology. He has also completed a one year program in cardiovascular pathology, however there is no certification associated with cardiovascular pathology. [ 138 ] He was asked by Dr.

Wood, the Medical Examiner, to conduct a cardiovascular pathology examination to either corroborate or refute the presence of HCM or any other pathologies of the heart. Dr. Wood advised him, in a general way, about the nature of the case. [ 139 ] Dr. Mont did not attend the autopsy. He received the heart after it was fixed in a solution of formalin. [ 140 ] Dr.

Mont ’ s evidence was that pathologists rely on an examination of the heart measurements and weight of the heart as well as microscopic examination of the heart, whereas cardiologists examine the heart as it is beating through physical examination, sounds, echocardiograms and electrocardiograms. Pathologists do not see the heart as it is functioning. [ 141 ] He stated that some heart diseases affect the electrical function of the heart.

However, pathologists cannot see the electrical activity of the heart whereas cardiologists can see this. [ 142 ] He acknowledged that applying out-of-date data could affect the validity of any opinion rendered. [ 143 ] He reported his findings to Dr. Wood on January 26 th , 2010 the same day she signed and delivered her final report. [ 144 ] Dr. Mont found no congenital abnormalities. The four chambers of the heart appeared normal and not dilated. His examination found no arterial dilations.

He measured the septum of the heart with a ruler and found it to be .9 cm thick. [ 145 ] He testified that a possible feature of HCM is an outflow tract obstruction. He did not see any physical obstruction in the outflow tract. [ 146 ] A microscopic examination of the myocardium showed it to be normal for an infant. He testified that HCM is a structural

disease of the heart which is probably the case for all forms of HCM. Having said that, he also acknowledged that there are some forms of HCM which are not manifested structurally and cannot be seen either through pathological examination or through echocardiograms, but only by genetic testing. [ 147 ] The records he reviewed showed a large battery of tests were done which ruled out most but not all the causes of infantile HCM. He did no other testing to prepare for this consultation. [ 148 ] He did not find HCM.

Pathological testing for HCM is done by way of measurements which he agreed can be somewhat subjective. [ 149 ] He was aware of the echocardiogram findings when he looked at the heart. He did not see either a thickening of the heart wall or any obstruction. His evidence was that the gold standard for determination of structural heart disease is a pathological examination. Dr. Mont ’ s last training with respect to echocardiograms was when he was a medical student in the mid 1990's. Dr. Mont has never conducted an echocardiogram himself. [ 150 ] According to Dr. Mont the best indication of HCM is the heart weight.

Increased heart weight and too much muscle in the heart are requirements for HCM. In this case these diagnostic criteria for HCM were not seen pathologically. [ 151 ] Dr. Mont ’ s determination was based in large part on his experience and on studies of normal hearts and the normal range of weight for those hearts. [ 152 ] His evidence indicated that the most often cited studies regarding heart weight was a source published in the 1960's. He testified that a 2011 publication still used the 1960's data, however on cross-examination he acknowledged that the 2011

article he referred to was with respect to paediatric cardiology and not specifically to HCM. The 2011

article did not mention HCM in the context of what are normal and abnormal measurements. Dr. Mont reviewed the 2011article while testifying and found no specific mention of normal measurements in that article. [ 153 ] The standards for heart measurement which he used came from a 1962 article. He was aware of the Ann Arbor study data regarding large groups of heart measurements. This he agreed was data used by cardiographers to compare for the norms. Although he was aware of this data he did not use it. He never compared the measurements that he used with those used by cardiographers.

His evidence was they are not the same and should not be equated. Having said that he also acknowledged that he never looked at the Ann Arbor study data to see if the measurements were equatable. [ 154 ] According to Dr. Mont electron microscopy can detect an ischemic event which he would probably not see at all on his examination.

He looked at slides of the heart in preparing his report, but other more sensitive tests such as electron microscopy were not used because he saw no structural reason for there to have been an infarction and because there was no evidence in any of the other examinations of there having been an infarction. [ 155 ] He did not feel that HCM was applicable because of the measurements he took and the weight of the heart. As a result of this, he did not order further testing. He related what was found on the echocardiogram to the events and course of treatment Aurora had while in hospital. Dr.

Mont testified that he perused the hospital charts, however he could not recall if Aurora had been given any heart medication which would account for the echo findings. [ 156 ] Dr. Mont saw Aurora ’ s heart after she died. It is impossible to know whether the heart he saw was contracting or expanding. Dr. Chen, on the other hand, viewed Aurora ’ s heart while it was still beating. He was able to accurately measure the size of its various components, as the heart was expanding and contracting, using sophisticated medical equipment not a ruler. Dr. Mont used dated data in forming his opinion.

He did not review data used by cardiographers to determine if that data equated to data he used. [ 157 ] Dr. Mont left the distinct impression that his examination was simply a pro forma one.

[ 158 ] Where the evidence of Dr. Mont differs from that of Dr. Chen, I accept the evidence of Dr. Chen. [ 159 ] On the basis of the evidence I accept, I find that Aurora did have an undiagnosed case of HCM. I am also satisfied that this condition, however, was not causative of her demise. [ 160 ] Dr. William Halliday was qualified as a paediatric neuropathologist entitled to give opinion evidence regarding the pathological examination, diagnosis and assessment of brain injuries in children. He has worked at the Toronto Hospital for Sick Children (SickKids) since 2003 as a paediatric neuropathologist.

His curriculum vitae reflects many decades of experience in the field of neuropathology. He prepared a report at the request of the Chief Medical Examiner. [ 161 ] Dr. Halliday noted that contusional tears appeared on both a gross (visual) and microscopic examination of the brain with the gross features of contusional tears differing from cysts caused by HIE both microscopically and visually. [ 162 ] He described Aurora as a child who had lost a lot of the bulk of her brain. [ 163 ] Dr. Halliday testified that it is possible to have cystic lesions as a result of other pathologies such as HIE.

He stated that cysts from HIE are not as “ punched out ” or well defined as contusional tears. The contours of cysts caused by HIE would be different than those of contusional tears. [ 164 ] The evidence of Dr. Halliday was that the real diagnostic element to determine whether a cyst is an HIE cyst or a contusional tear, is the smooth wall which is one of the characteristics of a contusional tear. It is important to note that on a gross (visual) examination he found the tears to be contusional. This was confirmed by his microscopic examination.

Some cysts he saw were contusional, others were caused by HIE and yet others were caused by unknown causes. [ 165 ] He was 95% confident about finding contusional tears, adding that scientific proof is based on a 95% confidence level. The presence of contusional tears was one of the most important findings he made. His opinion was that the contusional tears were the result of blunt trauma. [ 166 ] Dr. Halliday testified that contusional tears cannot be aged with any particular accuracy, however he believed that the tears he saw were of two different ages.

He believed that the small contusional tear was newer than the larger one. He described contusional tears as rare even in infants. He has seen only three or four cases of these since 1982. He was unaware of any causes other than force or trauma for the presence of contusional tears. Because the tears were of two different ages the inference he drew was that there were two impacts of primary forces. [ 167 ] The degree of force required to cause contusional tears is unknown, however contusional tears have been associated with abusive head trauma. He was not aware of these tears being caused by HIE. [ 168 ] Dr.

Halliday testified that some of the contusional tears were already present before July 23 rd , but he could not say how far back they went. [ 169 ] HIE affected both the brain and the brain stem. His opinion was that the HIE injury on the hemisphere was older than the brain stem HIE which was in keeping with the July 23 rd to 27 th time frame. The HIE seen in Aurora was caused by a lack of oxygen, but it did not speak to the cause of such injury. [ 170 ] He dismissed HIE as being the result of the birth process on the basis of Aurora ’ s Apgar scores.

He acknowledged that Apgar scores measure things which are controlled by the brain stem. If there was damage to the cerebellum occurring in the period shortly before or after birth, that might not be picked up by the Apgar scoring. Injuries to the brain are difficult to diagnose.

[ 171 ] Dr. Halliday ’ s evidence was that if a cardiac event, induced by a congenital heart defect, occurred on July 23 rd it could account for the HIE seen. According to Dr. Halliday the cardiac event, however, would not explain the retinal hemorrhaging or its pattern nor the magnitude of the subdural bleeding. Most importantly, in his opinion, that cardiac event would not explain the contusional tears or the scarring of the folia. [ 172 ] His opinion did not relate any of the HIE injury to a blow to a part of the brain. [ 173 ] An infarction is the death of tissue in the area of insult. Dr.

Halliday found that the entire occipital side of Aurora ’ s brain showed a liquefying in that area. He described Aurora ’ s brain from an injury point-of-view as devastated with the cerebral hemispheres at all levels showing some degree of injury. [ 174 ] Dr. Halliday testified that because a seven week old baby has only sucking and crying reflexes and bodily functions, it can be very difficult to discern how sick a baby really is. Parents may not know that the baby is as ill as it is. The child may not show signs of neurological damage.

His evidence was that babies, even those born without a brain, are able to feed due to autonomic functions. [ 175 ] He confirmed the presence of a subdural hematoma. The time frame for this injury was not out of keeping with the July 23 rd to 27 th period. Some of the subdural blood seen in the microscopic slides was older but that was a distinct minority. Some testing was done to determine the age of the bleed, however he could not come to a firm conclusion. [ 176 ] The left eye showed scattered retinal hemorrhages.

He related the retinal hemorrhages as being consistent with abusive head trauma and indicated that if it was as a result of birth it would have cleared by age three weeks. Another cause for such hemorrhaging could be a crushing injury. [ 177 ] Dr. Halliday has had cases of crushing injuries that have had the same findings as those of Aurora, but in those cases there was a history to explain the injuries. Here there was no history. Dr. Halliday has only seen a contusional tear involving a crushing injury in one case. He would not expect a crushing injury to be caused by an adult rolling over on a child in bed.

In all four cases where he has seen contusional tears Dr. Halliday has diagnosed trauma as the cause. [ 178 ] Areas of large scarring were found in the cerebellum. The cerebellum protruded out into the subarachnoid space. The scar he believed was weeks old, not days old. The features of this scar indicated to him that the likely cause was trauma because (1) the folia intruded into the subarachnoid space and (2) the overall pattern showed blunt force injury. [ 179 ] He opined that the subdural hematomas were due to shake and impact. [ 180 ] Dr.

Halliday agreed that subdural hemorrhaging could possibly be caused by CPR, however, the amount of hemorrhaging seen here caused him to reject that as a possible cause. [ 181 ] Some of the pathology seen was due to the child being on life support, however not all of the subdural findings were related to this. [ 182 ] The scars on the surface of the cerebellum were dated in terms of weeks not days and he did not see birth as a cause for these injuries. [ 183 ] He could not speak to the degree of force which would cause these injuries but did not believe that the injuries could be associated with normal child care. [ 184 ] The presence of retinal hemorrhages, subdural and subarachnoid hemorrhaging and the severe findings with respect to Aurora ’ s

brain led him to conclude that this was a case of abusive head trauma because the one thing that addressed all of the findings was trauma. Metabolic, infectious or genetic causes could not explain all of his eight findings. [ 185 ] Because different areas of the brain were injured Dr. Halliday concluded that the injuries were isolated and could not be linked together. His opinion was that blunt force trauma to the head caused these injuries. [ 186 ] The main finding of his report was that what Dr. Macaulay had described as cysts were, in Dr. Halliday ’ s opinion, contusional tears.

The mechanism for contusional tears is the brain matter being pulled apart by trauma. [ 187 ] Dr. Halliday could not say when the abusive head trauma occurred in relation to Aurora ’ s collapse. He agreed with Dr. Mont that the extent of the acute HIE was sufficient to account for her death. [ 188 ] I accept the evidence of Dr. Halliday. [ 189 ] Dr. Marnie Wood, the Medical Examiner, was qualified as an expert entitled to give opinion evidence as to the cause of death, the nature of injuries including traumatic injuries, and causation. [ 190 ] On July 28 th , 2009 Dr. Wood performed the post-mortem examination.

Her evidence was that as a medical examiner she attempts to find the most reasonable explanation for the cause of death. If there are other possible causes of death she determines whether the chain of events have been interrupted by some other disease or event. [ 191 ] Prior to authoring her report Dr.

Wood had the benefit of the following: information provided by hospital staff and police interviews with the parents; paramedics records; birth records; hospital records; consultation reports; statements from the clinic staff and public health nursing staff; autopsy findings; neuropathology and cardiovascular pathology consultation reports together with results from medical genetics and metabolic testing and toxicology results. [ 192 ] In hospital diagnostic imaging revealed subdural hemorrhaging which was deemed to be acute and subacute. Multiple rib fractures and long bone injuries were also identified.

Retinal hemorrhages in the left eye were noted. Examination and investigation performed by medical genetics revealed no evidence of metabolic disorder or disease. [ 193 ] Investigations done by cardiology showed functional abnormalities suggestive of HCM. No metabolic diseases associated with HCM were identified. [ 194 ] Dr. Wood ’ s report was not completed until January 26 th , 2010 because she was waiting for neuropathology and cardiopathology consultations to be completed. [ 195 ] Dr. Wood ’ s review of hospital records showed that Aurora ’ s birth was uncomplicated and not traumatic.

No injuries were noted on the post delivery examination. There were no reports of forceps or vacuum being used at the time of delivery or of the delivery being, in any way, complicated. Aurora ’ s Apgar scores were nine and ten, one and five minutes after birth with ten being the best score on the Apgar scale. Aurora was discharged from hospital as a healthy infant. [ 196 ] The autopsy showed no external injuries or lesions on the trunk of the child ’ s body. [ 197 ] A total of 30 rib fractures of different ages were identified in right ribs 1 and 3-11 and left ribs 2-10.

Many of the fractures were at the boney part of the rib next to the chest bone. Rib fractures were found on the front, side and back of the ribs. [ 198 ] Visual and microscopic examination confirmed multiple rib fractures of varying ages, a healing fracture of the left radius and

ulna, and periostal hemorrhage of the mid-right femur. The neuropathology consultation found a recent subdural hemorrhage, recent subarachnoid hemorrhage and diffuse HIE. Also noted was extensive MCE. [ 199 ] Both the cause and timing of the MCE was uncertain. The normal examinations done at the time of birth and immediately after birth suggested to her that the damage did not occur in utero or during delivery. [ 200 ] Dr. Wood described MCE as a condition involving damage to the brain due to a lack of blood flow or infection.

It is not a condition typically associated with trauma, but can be caused by anything leading to reduced blood/oxygen supply to the brain. No evidence of infection was found nor was there any evidence of a traumatic birth which could have resulted in a lack of oxygen. [ 201 ] Tests performed during hospitalization showed no clotting abnormalities and no history of easy bruising. Hospital records compiled at the time of Aurora ’ s birth and at the time of her admission on July 23 rd , 2009 revealed no signs of any bleeding disorder.

No congenital abnormalities were found and metabolic screens showed no bone disease. [ 202 ] Dr. Wood indicated that in some literature HIE from any cause (that is without preceding trauma) may cause bleeding from damaged blood vessels into the subdural space. She noted, however, that in none of the reported cases was there enough blood present to be visible without a microscopic examination and that the blood mentioned in those reported cases was located within the dural membrane. [ 203 ] In this case the visual post-mortem examination revealed several millilitres of blood on the underside of the dural membrane.

Dr. Wood reviewed medical literature regarding resuscitation as a cause of subdural hemorrhages and found no reported cases of subdural hemorrhaging as a result of resuscitation efforts. [ 204 ] Blood cultures and blood work showed no signs of infection and the post-mortem examination revealed no visual or microscopic focus of infection. Meningitis was not found on examination of the brain by the neuropathology consultant Dr. Macaulay. [ 205 ] Blood and urine testing done during hospitalization showed no evidence of any metabolic disorders. [ 206 ] Dr.

Wood ’ s evidence was that in cases of sustained bouts of severe coughing, such as whooping cough, blood has been found in the subdural space. The amount found in those instances, described as a thin film, was accompanied by other signs of sustained coughing such as periorbital petechia and swelling of the facial tissues. In this case Dr. Wood found on post-mortem examination several millilitres of blood, as opposed to a thin film of blood. As well, there were no reports of the child suffering sustained bouts of coughing while in hospital. [ 207 ] Dr.

Wood testified that the three recent anterior rib fractures may have been attributable to resuscitation. The other rib fractures, however, occurred days to weeks prior to CPR being performed given the amount of healing seen in those fractures. [ 208 ] Dr. Wood testified that rib fractures, especially those located posteromedial, were considered suggestive of non-accidental trauma. She attributed the rib fractures to a squeezing type of force and the arm fracture to the application of direct force. [ 209 ] Skeletal imaging performed during hospitalization showed no thinning of the bones or skeletal deformities.

No other findings associated with structural diseases, such as hearing loss or blue sclerae, were noted. She also testified that multiple boney injuries in healthy non-walking infants are considered suggestive of non-accidental trauma. She noted no history of any accidental falls. [ 210 ] Dr. Wood certified the cause of death as blunt force injury. The autopsy revealed the pattern of bleeding in the brain consistent with mechanical brain injury and evidence of damage due to a consequent lack of oxygen. The injury to the brain was fatal.

Her evidence was that the constellation of findings was most consistent with non-accidental trauma.

[ 211 ] Dr. Wood prepared a supplemental medical examiner ’ s opinion dated May 2 nd , 2011. She had the benefit of an addendum neuropathology consultation by Dr. Macaulay and a neuropathology review of the case by Dr. Halliday. [ 212 ] In her supplemental report Dr. Wood indicated that HIE may occur due to other conditions, but subdural and subarachnoid hemorrhages would not be expected to accompany HIE in the absence of trauma. She concluded, based on these findings, that HIE was due to blunt force injury to the head.

Her opinion was that the subdural and subarachnoid hemorrhages were markers of force having been applied to the head which tore the blood vessels. [ 213 ] Dr. Wood ’ s evidence was that contusional tears are lesions unique to young infants (less than five months old) because of the characteristics of an infant head and skull and the soft consistency of the infant brain.

In her supplemental report she noted that contusional tears are the result of deformation of the skull and rotational acceleration caused by the application of blunt force to the head leading to shearing forces which damage the brain tissue. [ 214 ] The scarring seen on the surface of the cerebellum was suggestive of an impact of the brain against the skull. Her opinion was that the HIE was a result of at least one previous episode of a global insult (period of reduced oxygen and nutrient supply to the brain) and was a complication of the blunt force injury. [ 215 ] Dr.

Wood dismissed rebleeding as an explanation for the accumulation of new blood in the brain. She testified that in order for rebleeding to be a cause of this there would have to be an established multilayer subdural membrane present. This membrane would be visible on visual examination and would be vascular enough to be at risk for rebleeding. She noted that no established chronic membrane was present containing large vessels at risk for bleeding with relatively minor trauma.

As a result of this she considered the source of the acute-subacute subdural blood as being caused by the application of blunt force to the head around the time of admission to the hospital. [ 216 ] Dr. Wood dismissed the brain injuries as having occurred at the time of birth. She stated if that was the case, then it would be expected that the child would have been symptomatic and that symptoms would have been apparent to physicians and staff at the clinic who examined her. [ 217 ] The exact time line of either the recent or chronic injuries could not be determined by Dr.

Wood. [ 218 ] I accept the evidence of Dr. Wood as to the cause of death being blunt force injury. [ 219 ] 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, including the diagnosis of causes and symptomology associated with those features. [ 220 ] He wrote two reports, dated November 20 th , 2009 and November 4 th , 2010. Both reports were prepared at the request of Dr. Wood of the Medical Examiner Services office. [ 221 ] He attended the autopsy to assist in the removal of Aurora ’ s brain because the brain matter was very frail. [ 222 ] In his report dated November 20 th , 2009 Dr.

Macaulay diagnosed Aurora as having the following: a subdural hemorrhage of recent origin; a subarachnoid hemorrhage of recent origin and patchy (occurring within a few days and not accumulating in a particular area); HIE of a severe nature found in the cerebrum, brain stem and cerebellum; and MCE of an extensive nature. [ 223 ] In the same report Dr. Macaulay indicated that MCE is characteristic of perinatal ischemic injury, that is, an injury occurring

during the period of 20-28 weeks gestation to 7-28 days post delivery. He noted that the extent of chronic injury was incompatible with normal neurologic function and that the injury may have been prior to delivery or may have occurred within the first few days of life. He commented that MCE is not a typical pattern associated with trauma. [ 224 ] In his addendum report of November 4 th , 2010 Dr. Macaulay found microscopic evidence of both previous and recent subdural bleeding. He indicated that these vessels can be prone to disruption with consequent rebleeding, however it was not possible for him to determine precisely from which region(

s) the recent subdural hemorrhage emanated. He could not determine the origin of the previous bleeding but indicated that head trauma associated with birth or inflicted injuries were potential candidates for the cause. He could not, however, exclude a spontaneous subdural hemorrhage. As well, he could not exclude head trauma associated with birth or inflicted injury as the potential causes for the most recent subdural bleeding.

He found that the volume of subdural blood seen at the autopsy and documented during brain cutting was insufficient to account for the significant mass effect on the underlying brain. [ 225 ] The convexities (curvature created by the brain) were not symmetrical which made them abnormal. [ 226 ] Dr. Macaulay described a contusion as a disruption of the surface of the brain. Had there been a finding of contusions, that would have supported a mechanical brain injury. The absence of contusions, however, did not exclude a mechanical brain injury. [ 227 ] He described brain contusions in an infant as rare.

He stated that it should never be assumed that an absence of contusion in an infant ’ s brain does not mean that there was no trauma. [ 228 ] He found numerous cavitations (a hole that should not be there). He identified the four most conspicuous ones by their location, however there were dozens more that were seen.

These holes were on both sides of the brain and did not appear to be new, but rather as if they had been there for weeks. [ 229 ] His examination revealed no bacteria, fungi, parasites or viruses to account for the findings of brain damage. [ 230 ] He found recent extensive and severe neuronal death in the cortex of the brain, the deep grey structures, and the brain stem. His evidence was that virtually all neurons were dead. Neuronal death was seen globally in the cortex of the brain. The neuronal death injuries occurred within three or four days of Aurora ’ s death. [ 231 ] During his cross-examination Dr.

Macaulay accepted Dr. Halliday ’ s findings regarding contusional tears as an acute problem and the ages Dr. Halliday attributed to those tears. He accepted contusional tears as a mechanical brain injury. [ 232 ] Dr. Macaulay referred to retinal hemorrhaging as being more common in infants and children than in adults who are subjected to trauma. His evidence was that there is a co-relation between trauma and retinal hemorrhaging in infants and children. [ 233 ] According to Dr. Macaulay subdural hemorrhaging in infants is usually seen as a thin film bilaterally on the child ’ s brain.

His evidence was that it is rare to see massive subdural bleeding in infants. He stated that subdural hemorrhaging is a common finding in cases of trauma and that subdural hemorrhaging caused by a rebleeding is very rare in infants. [ 234 ] The subarachnoid hemorrhaging he found was both acute and chronic (older). His evidence was that there can be rebleeding in the subarachnoid, but it is not common. [ 235 ] He described the classic triad of signs indicating trauma as being retinal hemorrhaging, subdural, and subarachnoid hemorrhaging. [ 236 ] His reports predated that of Dr. Halliday. He accepted Dr.

Halliday ’ s finding that there were contusional tears in Aurora ’ s brain with some of those having fresh blood. Some tears were two or more weeks old and others were days old.

[ 237 ] Dr. Halliday was one of Dr. Macaulay ’ s examiners at his board certification. He described Dr. Halliday as being among the top paediatric neuropathologists in Canada. [ 238 ] Both he and Dr. Halliday found acute and chronic subdural hemorrhaging. He accepted Dr. Halliday ’ s finding that the HIE was of two different ages and agreed that because of the Apgar scores and the easy birth, that it was unlikely that HIE occurred prebirth. [ 239 ] Initially Dr. Macaulay did not find retinal hemorrhaging. However, when he reviewed the microscopic slides he agreed with Dr.

Halliday that there was retinal hemorrhaging. With respect to the cerebellar scars noted by Dr. Halliday he accepted his conclusion totally and agreed that the cause of the cerebellar scars was trauma. [ 240 ] When referred to Dr. Halliday ’ s opinion, which was based on findings of eight pathologies, Dr. Macaulay stated “ 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 the broken bones.

A lack of blood/oxygen for seven minutes does account for the hypoxic-ischemic encephalopathy but not the other findings I saw ” . [ 241 ] On the totality of the medical evidence which I accept I find that Aurora did have HCM with obstruction, however this was not causative of her death. I am also satisfied beyond a reasonable doubt that Aurora died as a result of non-accidental trauma (abusive head trauma). The evidence leads me to conclude as well that the three recent anterior rib fractures were caused by resuscitation efforts.

The other rib fractures and the boney fractures were caused by the application of force. [ 242 ] Trudy Anstey is a teacher with the Regional School Board seconded to the Department of Justice at the Correctional Centre. She was called by the defence to discredit Ms. Gomes ’ evidence that she put a note for Mr. Rahman in a book called Programming Visual Basics 6.0 while they were both being detained on remand at the Correctional Centre. [ 243 ] Ms. Anstey testified that inmates in protective custody, such as Mr. Rahman, do not have access to a classroom.

Inmates in protective custody, even if they wanted to upgrade their education with a GED could not come to class, rather Ms. Anstey would go to their cell unit. She knew Mr. Rahman and said that he was in protective custody and never came to the classroom, although he did request to see her. [ 244 ] Her evidence was that inmates who wished to use the library would be escorted there by guards and the escort would stay with the inmate in the library. [ 245 ] Ms.

Anstey ’ s evidence was that the book Programming Visual Basics 6.0 is not one that she had in the classroom, although she did not check the library to see if that book was in the library. She brought with her Exhibit 37 a book entitled Programming Visual Basics 5.0. Her evidence was that she did not know if this book circulated to inmates between December 2009 and March 2010. [ 246 ] On cross-examination her evidence was that the books she used to teach were different than those in the library. She acknowledged that there was no catalogue of books or signing out procedure for books.

She could not say if the book Programming Visual Basics 6.0 existed in 2009. She did not check the library for that book. She testified that there was no inventory of books kept in the library. Her evidence was that inmates in protective custody would have access to the library books if the inmate went to the library with an escort or if another inmate from that unit obtained a book for someone else. Ms. Anstey admitted that inmates did pass notes to each other in what is known as kiting. [ 247 ] Ms. Anstey ’ s evidence did not discredit or raise a doubt about the truthfulness of Ms.

Gomes ’ evidence. [ 248 ] On the basis of the evidence I accept, I make the following findings of fact.

[ 249 ] Aurora was born on June 6 th , 2009 and died on July 27 th , 2009 as a result of abusive head trauma. She suffered multiple rib and boney fractures caused by the application of blunt force. These injuries occurred at different times during her short life. Aurora sustained two separate injuries to her head weeks apart which caused internal bleeding. The second of these caused her death. [ 250 ] Ms. Gomes lied to her parents, her family, the bank and the police. She was at one point accused of committing the offences Mr. Rahman now faces.

She entered into an immunity agreement with the prosecution and provided an audio/video taped statement under oath setting out the allegations she made at trial. [ 251 ] Having been proven to have lied before, this Court should be very cautious in accepting her evidence concerning what she alleged Mr. Rahman did or told her he did to Aurora. I have repeatedly and carefully reviewed her evidence and that of Mr. Rahman in preparing this decision. [ 252 ] In her initial July 24 th , 2009 statement to the police she denied that Mr. Rahman hit the child. She told the investigators that Mr.

Rahman was very good with the baby. She denied as well ever seeing anything done by Mr. Rahman to cause the rib injuries. She told the police that she never saw him upset with the child. At trial she maintained her initial statement was true except for the four inc

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