R. v. A.H.H., 2016 NSSC 195

SUPREME COURT OF Nova Scotia Citation: R. v. A.H.H. , 2016 NSSC 195 Date: 2016-07-22 Docket: Yarmouth No. 423718 Registry: Yarmouth Between: Her Majesty the Queen v. A.H.H. Library Heading Restriction on Publication: s. 486.4 C.C. Judge: The Honourable Justice James L. Chipman Heard: May 24, 25, 27, 30 and 31, 2016, in Shelburne, Nova Scotia Oral Decision: July 22, 2016, in Shelburne, Nova Scotia Subject: Criminal Code ss. 268, 215(2) (

a) and 221 counts referable to an infant victim

Summary: [ 1 ] On November 4, 2011, A.S. gave birth to a healthy baby boy. Just over three weeks later, his life was irreparably changed. On November 28, he was airlifted from his home in Shelburne to the IWK Health Centre in Halifax. The 24-day-old boy was experiencing seizures, decreased responsiveness and had bruising to his head.

Through various tests, including a CT scan of the head, it was determined the baby was suffering from: • complex skull fracture; • bilateral extra-axial complex fluids/bodily collections; • tentorial foci bleed; • brain swelling and probably ischemic injury of at least the right occipital region; • combination “highly suspicious for non-accidental trauma”. [ 2 ] Given the injuries, the IWK Child Protection Team, Children and Family Services and the RCMP became involved in the matter.

The baby’s father, A.H.H., was ultimately charged as follows: [3] That he, at or near Lake George, Shelburne County, Nova Scotia,: 1. Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, wound E.H. thereby committing an Aggravated Assault, contrary to

Section 268 of the Criminal Code . 2. Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, did being a parent of E.H., a child under the age of sixteen years, did fail without lawful excuse to provide the necessaries of life to E.H., contrary to Section 215(2) (

a) of the Criminal Code . 3. Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, did by criminal negligence to wit; fail to seek medical assistance for E.H., cause bodily harm to E.H. contrary to

Section 221 of the Criminal Code . [4] A.H.H. entered not guilty pleas and a five-day judge-alone trial was held in Shelburne in late spring, 2016. [5] Issues: Did the Crown prove beyond a reasonable doubt the guilt of A.H.H.?

Result: [6] Given the totality of the evidence, the Court was satisfied beyond a reasonable doubt that A.H.H. maimed E.H. such that the young boy (who will turn five on November 4 of this year) has been left with a permanent physical and mental disability. Given E.H.’s documented IWK hospital admission on November 28, 2011, there can be little doubt that the aggravated assault had the effect of endangering the infant boy’s life. [7] Given the nature of the catastrophic head injuries in question, the Court found that they were not occasioned incrementally over days or weeks.

On the contrary, it was the Court’s finding that the injuries happened in a moment in time, as a result of the force inflicted by A.H.H. Primarily the expert medical evidence caused the Court to conclude beyond a reasonable doubt that the injuries, which were restricted to E.H.’s head, and of a combined crushing and force nature, were inflicted on one occasion when A.H.H. lost control. [8] The Court concluded that A.H.H. did nothing to report the injuries until the damage was already brought to the attention of the medical authorities, i.e. hours after E.H.’s November 28 IWK admission.

Given the significance of the trauma he inflicted upon E.H., A.H.H. must have known his baby was hurt, yet he did nothing to alert anyone. [9] In the result the Court found A.H.H. guilty beyond a reasonable doubt of aggravated assault contrary to s. 268 of the Criminal Code, of failing to provide the necessaries of life to E.H. contrary to s. 215(2) (

a) of the Criminal Code , and of failing to seek medical assistance for his child contrary to s. 221 of the Criminal Code . THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. A.H.H. , 2016 NSSC 195 Date: 2016-07-22 Docket: Yarmouth No. 423718 Registry: Yarmouth Between: Her Majesty the Queen v. A.H.H. Judge: The Honourable Justice James L. Chipman Heard: May 24, 25, 27, 30 and 31, 2016, in Shelburne, Nova Scotia Oral Decision: July 22, 2016 in Shelburne, Nova Scotia Counsel: Josie McKinney, for the Crown Raymond Jacquard, for A.H.H. Orally by the Court:

Introduction [10] On November 4, 2011, A.S. gave birth to a healthy baby boy. Just over three weeks later, his life was irreparably changed. On November 28, he was airlifted from his home in Shelburne to the IWK Health Centre in Halifax. The 24-day-old boy was experiencing seizures, decreased responsiveness and had bruising to his head.

Through various tests, including a CT scan of the head, it was determined the baby was suffering from: • complex skull fracture; • bilateral extra-axial complex fluids/bodily collections; • tentorial foci bleed; • brain swelling and probably ischemic injury of at least the right occipital region; • combination “highly suspicious for non-accidental trauma”. [11] Given the injuries, the IWK Child Protection Team, Children and Family Services and the RCMP became involved in the matter. The baby’s father, A.H.H., was ultimately charged as follows: That he, at or near Lake George, Shelburne County, Nova Scotia,: 1.

Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, wound E.H. thereby committing an Aggravated Assault, contrary to

Section 268 of the Criminal Code . 2. Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, did being a parent of E.H., a child under the age of sixteen years, did fail without lawful excuse to provide the necessaries of life to E.H., contrary to Section 215(2) (

a) of the Criminal Code . 3. Did, between the 26 th day of November, A.D., 2011 and the 27 th day of November, A.D., 2011, did by criminal negligence to wit; fail to seek medical assistance for E.H., cause bodily harm to E.H. contrary to

Section 221 of the Criminal Code . [12] A.H.H. entered not guilty pleas and a five-day judge-alone trial was held in Shelburne in late spring, 2016. Evidence Called by the Crown Lay Witnesses [13] The Crown called the mother of the child, A.S., along with A.S.’s parents, Mr. S. and Mrs. S. The RCMP’s primary investigator assigned to the matter, Cpl. Luc Cote, gave evidence. As well, the Crown played the audio/video statement of A.H.H., taken on the day he was arrested, April 19, 2012. Expert Witnesses [14] The Crown called two medical experts, general practitioner Dr. Mark Riley and pediatric specialist Dr.

Alfhild Larson. [15] Dr. Riley was qualified by consent, as follows: A duly qualified medical practitioner licensed to practice medicine in Nova Scotia and qualified to give expert opinion evidence on the diagnosis, prognosis and treatment of injuries to human beings, including the cause of injuries to the human body. [16] Dr. Larson was qualified by consent, as follows: A duly qualified medical practitioner licensed to practice medicine in Nova Scotia and qualified to give expert opinion evidence on pediatrics, child maltreatment and pediatric injury

interpretation. [17] The Defence did not lead any medical evidence to refute the opinions of Dr. Larson or Dr. Riley. This is perhaps not surprising given their credentials and trial testimony. From Dr. Larson’s curriculum vitae it is apparent that she is a pre-eminent pediatric specialist. I was particularly impressed with her background (from July 1, 2011 to the present) as a physician involved with the IWK Child Protection Team. In this role, she is responsible for the medical evaluation of suspected child abuse and neglect (on service one week in four). Dr.

Larson impressed me as a very balanced witness, never prone to overstatement. I found both her written and oral expressions of opinion to be cautious, reasonable and well-founded. [18] As for Dr. Riley, I similarly found him to be a thoughtful witness. With the permission of the Court (and agreed to by Defence counsel) he carefully checked his notes before providing testimony in key areas. Dr. Riley’s nearly 30 years as a general practitioner shone through as he spoke of his involvement in the matter. [19] The Crown entered eight exhibits by consent, as follows: 1.

Book containing 31 photographs taken on November 30, 2011, of the exterior and interior of the residence where the assault was alleged to have taken place, and 13 photographs taken of E.H. when he was admitted to the IWK on November 28, 2011; 2. Dr. Larson’s 10-page curriculum vitae ; 3. Dr. Larson’s 30-page report dated April 12, 2012 (Dr. Larson’s first report);

4. Dr. Larson’s seven-page report (with agreed-upon redactions at pages 4 and 6) dated February 11, 2013 (Dr. Larson’s second report); 5. 17 still images of CT scans and MRIs taken of E.H.’s skull at the IWK (and shown at the trial through a slide presentation during Dr. Larson’s direct examination); 6. Dr. Riley’s one page curriculum vitae ; 7. DVD of A.H.H.’s April 19, 2012 statement (the entire approximate nine-hour statement was played in Court); 8. Sketch of a barbell drawn by A.S. Evidence Called by the Defence [20] The Defence called C.S.T.M. and J.M.G.

C.S.T.M. and J.M.G. are in a common-law relationship and they were friends with A.S. and A.H.H. at the time of the matters in issue. Defence Theory of the Case [21] The Defence provides three alternate explanations for E.H.’s injuries. On the day he was arrested, April 19, 2012, A.H.H. gave a warned statement to police. In that statement, A.H.H. says that he accidentally injured E.H. on November 27. Through the testimony of C.S.T.M. and J.M.G., the Defence adds that E.H. would have been injured about a week earlier, when he fell off a couch and his mother then fell on top of him.

Finally, the Defence argues that E.H.’s vacuum assisted birth may have caused initial head injuries. [22] Below, I have set out these defences as headings, canvassing the totality of the evidence. Vacuum Assisted Birth [23] E.H. was born at 39 weeks by spontaneous vaginal delivery with vacuum assist at South Shore Health Centre in Bridgewater. In Dr. Larson’s first report, at pp. 6-7, she provides the following detailed review of the birth record: Birth Record : Mother Gravida 1 Para 0 (no previous pregnancy). Estimated Date of Delivery (due date) November 12 th , 2011. Gestation 38 weeks + 5 days.

Born vaginally with “low” vacuum assistance November 4 th , 2011 at 00:59. There was a mediolateral episiotomy and suture repair. Mom had morphine 10mg and Gravol 50 mg at 1515 November 3 rd , 2011. Birth weight 3945g. Apgars 6 at 1 minute and 10 at 5 minutes. Narcan 0.4 mg given for low tone. Baby received positive pressure ventilation with mask for 44 seconds. Newborn Nursing Assessment and Nursing Notes : At 0120 his nurse charted “Large cephalhematoma”, although no other description was provided. Examination was otherwise normal.

Subsequent nursing notes describe routine newborn care, and indicate that for the early feedings in the first day or two, E.H. had a few difficulties with mucus and emesis of small amounts. At 22:00 on November 4 (21 hours of age), E.H.’s nurse charts “scalp red from vacuum. Skin abrasion noted.” At 05:30 the next day, his nurse charts “polysporin ung applied to scalp abrasion.” On November 6, it is noted “scalp abrasion improving.” Feeding issues resolved after the first day. Vitamin K 1 mg was given intramuscularly (into a muscle) on November 4 at 0500.

This is a standard part of newborn care, and helps to prevent clotting problems. Physician Newborn Examination : The baby was delivered vaginally with vacuum assistance and received positive pressure ventilation (help breathing) for 1 minute. Head circumference of 37cm and length of 53cm were documented. Gestational age by dates and assessment were 38 weeks 6 days and 39 weeks respectively. The admission examination record has a series of tick boxes, which includes “skull shape” and “fontanelle and sutures.” These were noted as being normal along with all of the other aspects of examination.

Physician progress notes : November 5 th , 2011: vitals stable, examination unremarkable except systolic ejection murmur heard at the left sternal border. (This would most often be a transient finding, and if transient, a normal finding.) Bilirubin 229 at 44 hours. November 6 th , 2011: Bilirubin 271 at 56 hours. Baby started on “Neocozy” phototherapy. Recheck bilirubin at 67 hours 276. November 7 th , 2011: Continued on phototherapy. Bottle feeding, voiding and stooling. Good tone, slight jaundice. Heart sounds normal with no murmur. Head and neck normal. Bilirubin recheck 268 at 94 hours. DAT was negative.

CBC normal. Normal newborn screen. November 8 th , 2011: Bilirubin 299 at 103 hours of age. Physician discharge examination : The discharge examination was also recorded as normal, with a discharge weight 3740g. The physician at discharge noted: There was jaundice which required phototherapy. On November 8 th , 2011 the bilirubin was 299. Formula feeds were well established prior to discharge. Plan was repeat Bilirubin November 9 th at Shelburne Hospital. Cord gas showed pH 7.28, CO2 of 48, base excess of -5 (normal values for a healthy newborn).

Complete blood count : Most laboratory results are recorded above in various sections. The Complete Blood Count (CBC), done at 5 November at 2100 (at 34 hours of age) is noted here, which was normal. The hemoglobin was 201 and the hematocrit 0.55. These are within the normal range (above average), for a newborn. [24] On direct examination, Dr. Larson stated that vacuum extraction involves the fixing of a suction cup to the infant’s head. She said that there is always some risk with this procedure. With specific reference to E.H., Dr. Larson explained that based upon her review

of the South Shore Health Centre notes, there were “a lot of reassuring comments” from the doctors and nurses at the hospital. As for a potential head injury on account of the vacuum extraction, Dr. Larson noted E.H. was asymptomatic. She added if there had been any head injury at birth, it would not be possible to have an absence of symptoms, as was the case with E.H. [25] On cross-examination, Dr. Larson was pressed regarding the nurse notation of “large cephalhematoma”.

She explained that whereas this term can refer to trauma, she was satisfied in this case when she read all of the physician and nursing notes that the baby had a normal presentation. Further, Dr. Larson said she felt the nurse who made this notation was “acting outside of her scope of practice to make the diagnosis.” Dr. Larson said that on the basis of her review of all of the records, she felt it “very unlikely there was a cephalhematoma at birth”. Importantly, Dr. Larson added that a complex skull fracture has symptoms, such that were not present in baby E.H. as of November 4-8, 2011. [26] Dr.

Riley’s first contact with E.H. was on November 14, 2011. This was a routine visit and, as Dr. Riley explained, most newborns are seen a week or two after birth by the family physician. At this point, Dr. Riley was aware that baby E.H. had a vacuum- assisted vaginal delivery. He was also aware that the newborn had jaundice, a condition he described as “not an unusual condition… 10- 20% of infants have it”. [27] Dr. Riley spoke to his examination of baby E.H. on November 14, 2011. He described it as “unremarkable… The baby looked like a week and a half old infant”.

The doctor said that he had no concerns regarding the earlier jaundice and there were no issues with E.H.’s skull. No concerns were brought to Dr. Riley’s attention and he testified that, at this point, he had no concerns with E.H.’s health. [28] Based on my review of the medical records and the testimony of Drs. Larson and Riley, it is my determination beyond a reasonable doubt that E.H. did not have a head injury at birth up until his initial discharge from the South Shore Regional Hospital on November 8, 2011, and at the time of his next visit with Dr. Riley on November 14, 2011. Couch Incident [29] Dr.

Riley’s next contact with the baby was on November 24, 2011. At this time, E.H. had a three-day history of vomiting with feeding. Since this symptom could suggest a medical condition, Dr. Riley contacted the IWK. The IWK offered a visit that same afternoon; however, the family could not make the trip on short notice. In the result, arrangements were made for the baby to attend the IWK the next day. [30] Importantly, Dr. Riley said that on the basis of his examination of baby E.H. on November 24, he stated that the infant was “not critically ill, not critically injured”.

As to the possibility of a head injury, because of what he observed, “It did not cross my mind.” [31] E.H. was seen at the IWK the next morning, on November 25, 2011, and Dr. Larson provides this review of the emergency department visit at p. 8 of her first report: The patient (aged 21 days) arrived to the Emergency Department (ED) at 11:02 and was triaged as level E3. The chief complaint was vomiting. The family had a consult letter from family doctor, Dr. Riley, with them. The letter described a three day history of projectile vomit with every feed. Formula was Similac and had previously been tolerated. Dr.

Riley described the pregnancy as uneventful with a vacuum assisted delivery and some neonatal jaundice. He stated that the patient was not ill looking and had no fever and asked for help in management. He also sent along the Physician Newborn Examination form completed after birth (reviewed above). Triage nurse’s notes : The notes indicate he was placed in a room at 12:12. E.H. was noted to be accompanied by “mom”, with vomiting listed as the reason for visit. The nurse’s notes indicated: vomit with most feeds for 2 days. Referred from Shelburne.

Last (fed) at 20:00, tolerated 2 since. + wet diapers/feeding well, no T (i.e. no fever). Term babe, no complications, bottle fed. On the examination

section she noted he was alert, and noted normal AE (air entry) in his chest, bowel sounds present and abdomen soft. The fontanelle is noted to be level. She noted he was moving extremities well, brisk refill to same. She recorded a weight of 3900 grams, and normal vital signs including temperature 37.7 rectal, pulse 180 while crying, and respirations 52, and oxygen saturation of 100%. Physician notes : The patient was seen by medical staff at 12:30. The physician notes indicate: Three day history of vomiting within 5 minutes of feeding. Vomits the majority of the feed.

Had 5 wet diapers the day of presentation and kept down 4 ounces of formula. Physician examination : The baby was drowsy but woke with stimulus. The physical examination was reported as normal, including a flat fontanelle. A grade II/VI cardiac murmur was noted, described as “PPS” (peripheral pulmonic stenosis, a benign murmur expected to disappear with time). Laboratory tests : The baby had blood work done which was essentially normal.

His Hemoglobin was 147 and Hematocrit 0.47 (normal, and still above average for his age, as his newborn blood count had been.) He had a normal white blood cell count (tends to rule out infection), and a slightly high platelet count of 591 (of no significance). His biochemical laboratory results included electrolytes, measures of renal function, a blood gas, and a glucose, all of which were normal. Course in Emergency Department: The baby fed, initially pedialyte, a special fluid designed for babies who have vomiting and diarrhea.

He tolerated that, and it was noted by the nurse that he did not vomit, that he was alert, looking around at surroundings. He was then offered formula, and the physician noted “tolerated 4 ounces here.” He did not vomit. He was discharged with a diagnosis of query gastroenteritis (mild viral illness causing vomiting, which would likely resolve with time). The plan was to follow up as needed. [32] Dr. Riley did not see E.H. again until the morning of November 28, “a non-scheduled visit”. As will be discussed further in this decision below, at this point, Dr. Riley felt the child was “not doing well”.

Owing to his concerns about a potential head injury, Dr. Riley interviewed both A.S. and A.H.H. together in a private room. During this meeting, A.S. told Dr. Riley for the first time that about a week earlier the baby had rolled off a low couch after a 5:00 a.m. feeding.

[33] In Dr. Larson’s first report, she reviews the IWK pediatric intensive care unit admission nursing notes and physician history and physical taken on November 28, 2011. She records the following at p. 3: E.H.’s mother reported that “last week” baby fell from their sofa after a feed when mom fell asleep. He fell on a hardwood floor “face- on” from about 15 inches height. He cried briefly then went back to sleep and there were no other concerns. [34] Later in her first report, Dr.

Larson reviews notes taken at the IWK under the heading of “Discussion with Family (November 29, 2011)” and states as follows at p.6: When asked if the baby had ever sustained an injury from a fall, the parents reported that twice E.H. has fallen. First of all was on Monday, November 19 th , 2011. A.S. was sitting on a low sofa feeding E.H. She fell asleep and awoke with a start when she heard E.H. cry. He had dropped out of her arms onto the floor. She describes the sofa as being “very low” (less than one foot) off of the floor, perhaps futon-style. [I will return to the notation of the second fall in the next

section of this decision at para. 67.] [35] Cross-examinations of Drs. Larson and Riley touched on the fall off the couch. Dr. Riley confirmed that A.S. did not disclose the incident when she brought the baby to him on November 24. Had Dr. Riley been given this information, he said that he would have noted it in his letter to the IWK and that he would have “looked further than the abdomen” regarding possible causes for the baby’s vomiting. Having said this, he noted that the baby was referred to the IWK and attended there the next day. [36] During her direct and cross-examinations, Dr.

Larson was asked about the importance of the fall. She was referred to her first report and I note the following discussion at pp. 14, 15: Reported fall November 19 or 20, age 15 or 16 days : E.H. is reported by his mother to have been lying on a low couch with her, and to have fallen off the couch when she fell asleep. He is reported to have landed on a hardwood floor. This is reported to have been a short distance, 12 to 16 inches. E.H. is reported to have cried briefly but otherwise to have appeared well.

The date of this was reported as November 19 in the initial interview with Angela Arra-Robar RN MSN, Clinical Nurse Specialist with the Child Protection Team. He was not brought to medical attention at the time of this reported fall. (At a later date, information was provided to Angela Arra-Robar by an investigating officer that the mother suggested this event had occurred on November 20.) The first record indicating that this injury event was disclosed to a health professional is on November 28. A fall off a low couch would be unlikely to result in a significant injury.

Reported onset of vomiting, probably November 21 to 22, age 18 or 19 days : E.H. is reported to have developed a new problem, in which he vomited significant quantities, within five minutes of every feed. The onset of this is recorded as “three days ago” by his family physician (on November 24). At the IWK Emergency Department, on November 25, it was dated as starting “two days ago” by the triage nurse, or “three days ago” by the Emergency Physician. In the physician admission note to the Pediatric Intensive Care Unit it was noted as November 22.

Thus it seems that the new onset of vomiting may have occurred as early as one day after the reported fall off the couch, although the time interval may also have been longer. None of the three health professionals who assessed E.H. about the vomiting documented specifically whether there had been a history of trauma. However, at the IWK both the triage nurse and the physician who saw E.H. documented the status of her anterior fontanelle (soft and level), his normal mental alertness, and his normal movements of all four limbs.

These comments in their notes indicate that they were considering disease or trauma of the central nervous system, as one possible cause of the vomiting, and were documenting negative findings pertinent to this question in their notes. If a recent fall had been reported, in a young baby with recent onset of vomiting, a health professional would generally wonder whether a head injury from the fall might be the cause of the vomiting. Questions about the fall event, and about the clinical status of the infant at and soon after the time of the event, would normally be asked, and the replies documented.

In the context of the overall documentation provided in these notes, it would be highly unusual if three different health professionals failed to document a disclosure of a recent fall. Where it is not possible to be certain what was said or not at the time of these medical visits, based on the documentation available it seems that when E.H. was being assessed for the cause of the vomiting, no injury event was disclosed. [37] On direct examination, Dr. Larson elaborated that a fall off a low couch would not result in the significant injuries that are seen (later) in this case.

She said that whereas a fracture might result, it would not be so deep in the brain as what baby E.H. experienced (into the brain ventricles). [38] On cross-examination, Dr. Larson acknowledged that a fall off of a couch such as the one in question could have resulted in a skull fracture, “but not the dramatic skull fracture” as with E.H. She added, in answer to one of Mr. Jacquard’s questions, that as of November 25, 2011, “this was a baby without a significant brain injury”. Dr. Larson reiterated that the November 25 IWK examination was “very thorough” and that the patient “looked well”.

The expert stated that both physicians and nurses assessed E.H. neurologically; this demonstrates they were considering a potential brain problem but were reassured. Dr. Larson confirmed that the November 25 tests with respect to blood, neurological function and electrolytes were normal/average. She said that the notes confirm the baby was tolerating Pedialyte and formula. [39] Later in the direct examination, Dr. Larson was asked to consider a further variable (that of mother rolling onto the baby after an initial fall). In her answer, Dr.

Larson referred to her earlier evidence, emphasizing the medical documentation at the IWK on November

25 confirmed a neurologically normal situation. Further, during cross-examination Dr. Larson did not alter her opinion. That is to say, she noted that the November 25 examination was “very thorough”. Dr. Larson added that the baby “looked well, he had a normal neurological examination. This was a baby without a significant brain injury.” Pressed further about the possibility of a crush injury having occurred earlier in November, Dr.

Larson emphatically responded, “If this were so, E.H. would not have been asymptomatic.” Referring again to the November 25 IWK records, the doctor stated they would have referred to more than the symptom of vomiting. [40] In addition to the expert evidence concerning the fall off the couch, the Court heard the evidence of the lay witnesses. Mr. S. [41] A.S.’s father said that it was his understanding E.H. had rolled off the sofa about seven to ten days before his November 28 IWK admission. He said he was not sure when he learned of this but thought that his wife, Mrs. S., had mentioned it to him. Mr.

S. could not be sure if he discussed the incident with his daughter, but he was sure he had not discussed it with A.H.H.. [42] On cross-examination, Mr. S. acknowledged that his daughter had not told him about the couch incident, but that he learned of it from his wife. Mrs. S. [43] It was A.S.’s mother’s recollection that it was on November 25 th that her daughter told her about the couch incident. It was Mrs. S.’s understanding that the incident had occurred a couple of days earlier. She described the couch as a “low bed sofa”.

She said that A.S. described the event as happening so fast and that it was an accident. She said that her daughter informed her that the baby had rolled off of her onto the floor. She said it was her understanding that A.S. was sleeping when this happened, but that she immediately woke up and calmed E.H. down. [44] On cross-examination, Mrs. S. agreed that the fall off of the couch must have occurred on November 21 and that she was told of this by her daughter on November 23. Mrs. S. elaborated that she did not think her daughter was embarrassed telling her about the episode.

She recalled that A.S. cried as she told her about the incident. A.S. [45] On direct examination, A.S. recounted what happened after arriving at the IWK on November 28, 2011. She said that she, A.H.H. and her parents were placed in a small waiting room. A doctor visited with them and explained that the MRI revealed E.H.’s skull was “like a crushed egg”. In answer to the doctor’s questions, A.S. said that she told the doctor that E.H. had rolled off the couch when he was ten days old.

She added that the baby was “swaddled in blankets so he was protected quite well”. [46] It was A.S.’s evidence that she told A.H.H. shortly after the incident and on “the same morning it happened before he left for work”. She added that A.H.H. did not have much of a reaction. [47] In answer to further questions, A.S. said that it was her routine to go on the sofa with E.H. on her. She allowed, “I must have dozed off… I woke up because I could feel him roll off. I picked him up and comforted him.” She added that E.H. was on the floor, “on his belly… he was swaddled in at least one blanket… I was on the sofa.

I jumped right up and grabbed him. E.H. was startled. I comforted him. There was a little bit of crying, it probably scared him.” [48] A.S. said that she did not notice any injuries. A.S. said she did not take E.H. for medical attention because “he was fine”. She said that she told her mother “shortly thereafter” and thought it may have been at the same time she told A.H.H. [49] A.S. said that in the time after the fall, the baby was the same and that he exhibited no change in behaviour or appearance. She stated that she told Dr.

Riley about the incident when the doctor pulled her aside on November 28. [50] On cross-examination, it was confirmed that the first time A.S. brought the couch incident up to a medical professional was on November 28 when she told Dr. Riley. Accordingly, she acknowledged that she did not tell Dr. Riley when she had taken E.H. in on November 24. It was demonstrated that this evidence was at odds with what A.S. had said at the preliminary inquiry, i.e. that she thought she had told Dr.

Riley on the earlier visit. [51] On cross-examination, further inconsistencies were developed regarding when A.S. may have told her mother and A.H.H. about the incident. During her cross-examination, A.S. was not asked about the allegation she may have fallen on top of her baby. C.S.T.M. [52] C.S.T.M. gave evidence about a discussion she had with A.S. in December 2011. C.S.T.M. said that A.S. wanted to talk to her about C.S.T.M.’s interview with the police earlier in December. During this discussion, C.S.T.M. stated that A.S. told her about the incident on the couch.

It was C.S.T.M.’s recollection that A.S. told her that her baby rolled out of her arms and onto the floor. Further, C.S.T.M. said that she was told by A.S. that she then, “slipped off the couch and rolled onto him… she broke down and confided to me that she fell on him”. [53] C.S.T.M. said that she asked A.S. about this again when they were at bingo in Shelburne. On this occasion, C.S.T.M. said that A.S. denied any such incident. [54] On cross-examination, C.S.T.M. acknowledged that the attempted conversation at bingo was in the presence of many other people.

Further, concerning the initial conversation with A.S., C.S.T.M. was reminded of her preliminary inquiry evidence whereby she did not say anything about A.S. telling her the baby screamed after the fall. C.S.T.M. then elaborated that it was A.H.H. who told her that he had heard the baby screaming. C.S.T.M. acknowledged she did not report anything about the couch incident to the police.

J.M.G. [55] J.M.G. is C.S.T.M.’s common-law spouse. He said he was present for part of the time when C.S.T.M. visited with A.S. and heard A.S. say she “got on the loveseat in the living room and the child rolled off. She ended up rolling off onto the child.” [56] J.M.G. was also present at bingo (at the Legion in Shelburne) when C.S.T.M. attempted to question A.S. further. He said that A.S. then denied the earlier incident took place. [57] On cross-examination, J.M.G. agreed he did not take any steps to notify the RCMP about what he had allegedly heard.

Analysis of the Evidence [58] There are obvious inconsistencies and problems with the totality of the evidence regarding the couch incident. Furthermore, the Crown has asserted that the rule in Browne v. Dunn is in play. That is to say, they make the argument that the Defence did not put any cross-examination questions to A.S. referable to her alleged fall on E.H. Accordingly, they say that while Defence counsel challenges the credibility of A.S., he did not give her the chance to address the contradictory evidence while in the witness box.

In any event, while acknowledging the difficulties with the lay evidence, it is nonetheless a relatively simple task to determine the impact of what occurred in and around November 19-20. I say this with resort to the expert medical evidence. In this regard, the Court had the benefit of Dr. Riley’s testimony regarding his observations of E.H. on November 24 and 28. Furthermore, there is the documentation from the IWK on November 25 and November 28 (and beyond), together with Dr. Larson’s expert testimony. [59] Recall Dr.

Riley said that, based on his observations of the child on November 24, a head injury did not cross his mind. In his testimony, Dr. Riley specifically stated that the child was “not critically ill” and “not critically injured”. This is in direct contrast to what he saw four days later wherein he arranged for an airlift to the IWK. Clearly, something happened to E.H. in this intervening time. [60] As for Dr. Larson, we have the benefit of her extensive reports and viva voce evidence. Pressed on cross-examination about the fall off the couch and potential subsequent fall on the baby, Dr.

Larson responded, “partial skull fracture could have happened but not the dramatic skull fracture” (i.e. what was seen on November 28 and beyond). Once again, we have physician and nursing examinations coupled with the investigations (bloodwork, neurological testing and electrolyte analysis) which all revealed average or normal results back on November 25. [61] Referring to the November 25 IWK admission, Dr.

Larson stated during her cross-examination, “This is a baby without a significant brain injury.” [62] In the result, based upon my review of the medical records, experts’ testimony, along with the (minimal value) layperson evidence, it is my determination beyond a reasonable doubt that E.H. did not have any head injury at the time of his discharge from the IWK on November 25, 2011. A.H.H.’s Defence of Accidental Drop(s)/Trip Exhibit 7 [63] Cpl. Cote testified that once the RCMP received Dr. Larson’s first report, A.H.H. was arrested.

Exhibit 7 is the DVD of A.H.H.’s warned statement, which took place at the Barrington detachment of the RCMP. Questioning begins at just before 10:00 a.m. on April 19, 2012, and concludes approximately 7:00 p.m. on the same day. When one accounts for the breaks, total questioning time is roughly 7.5 hours. The vast majority of the questioning, which involved one officer at a time being present and conducting the questioning, is conducted by Sgt. Greg Vardy, with minimal questioning by Cpl. Cote, Cst. Patricia Davis, and Cst.

Rob Dykstra. [64] By consent, the Court was provided with a transcript of the Exhibit 7 audio. While not 100 percent accurate, when I cross- reference the transcript with the audio, I find it to be a largely verbatim reproduction. Accordingly, below I have drawn on portions of the transcript to illustrate A.H.H.’s evidence in critical areas. Review of Exhibit 7, with a Focus on the Description of Injury Events [65] A.H.H. first states that he dropped E.H. while he was in the process of reaching into the microwave (on top of the fridge) for a bottle.

He explains that E.H. fell from his right arm, head-first towards the right while A.H.H. was standing and reaching up. Q. do exactly, now I want you to think back, do exactly what you did. A. ok. Had him like this. This is usually how I hold him. Q. ok A. and as I’m going to the microwave Q. you went to the fridge first A. oh yeah that’s right. I got the bottle, and I take the top off, put the bottle in the microwave set it to a curtain time. And, still tending to the baby, waiting for the microwave, still holding him with one hand and I’m, the microwave is done, open the microwave, (Inaudible) from there.

And well this ain’t a very good example but, he put his weight to him,

Q. yeah A. and as he’s moving around and I took my attention off him Q. yup A. and as I did that, he fell that way. Q. that way, so to the right. A. yup, like, like that, and he hit landed on his head and I never thought of anything about it, well I don’t, I don’t know, about into head injuries and stuff so I thought I’d look after him and make sure he’s alright. He seemed fine afterwards, like nothing really. [pp. 45-46 Transcript] [66] Next, A.H.H. modifies his story to add that E.H. struck his forehead on the back of the kitchen chair, and then fell head-first onto the floor. Q. its ok. But what?

A. he did hit his head on one of the you know where the chair is ah, Q. the table and chairs, ok A. I didn’t want to tell anybody because, first thing is I don’t know how A.S. is going to respond to it even though when she told me, she rolled off with him, I didn’t give her any you know, cause things happen, I’m not going ta, but with Mr.

S., living there, I didn’t know who to talk to, I didn’t, and everything was thrown at my face and going to the hospital, having cops questioning ya, the child protective people and A.S. being all crying and everything, and I was just, Q. you didn’t know how to handle it all A. and her parents (Inaudible) I don’t know if you know this but they acted kinda really like, not good in the hospital, causing problems and had to be taken out by the security. I mean, it was Q. like a nightmare. So explain to me what happened then, so I’ll tell you what we will do. Um, cause from my memory, if it serves me correctly.

Just stand up for one second. I believe that the chair was here, A. um-hum. Q. about that far from the fridge. And the tables there right. A. yup Q. so you go over and pick the baby up A. yup Q. so you pick the baby up. So you pick the baby up and then you go to the fridge and (Inaudible) A. yup. I go to the fridge, open it up, get out the bottle, take the top off, go for the napkin, which was probably in the room, which the room is over there.

Q. ok A. get the napkin, and I’m right here, and as I’m feeding him, you know, doing the normal routines and you know, he pukes up a little bit of stuff, so I you know, pat him a little bit. Napkin and as I’m going to do that, that’s like the same ways I said before, Q. baby feel A. yup Q. so the baby fell back this way A. yup Q. and where did the baby hit? A. on the top edge of the chair and then rebounded back on the floor. Q. so the baby hit the chair, so about how high is this. Is this roughly the height of the chair.

A. pretty much, I mean I haven’t been there [pp. 55-57 Transcript] [67] Later in the interview, A.H.H. describes a different event, occurring in the living room. He says that while he was holding E.H.

in his arms, he tripped on something and then fell on top of E.H. Q. Exactly, exactly. It’s not something you should be hiding. To me, that is the worst thing you can do. How did you fall on the child? A. I, I don’t know how to say it. Q. Just the truth. A. No one would believe me anyway. Q. I’ll tell you right now, that’s why I’m here. A. I thought you were like some kind of interrogation kind of guy. Q. I’m here to find out the truth, that’s it. Ah, you know what, I’m gonna tell you right now. This is not about getting you to say you did anything. This is about the truth and nothing but the truth.

I can’t say that enough to you. That’s why, if something like that happened, that’s what I want to know because it is important. You know what, you’re the one that, you tell the truth, you’ll see that. So what happened? A. No one would believe me. Q. I’m here now, that’s why I’m trying to. A. No but I’ve already made up a story with the dropping him so why would people believe me now? Q. Because if you tell the truth, that’s why we lay it out, right. I mean, it only makes sense. So what really happened? A. I don’t know how to explain it. Q. Well, just tell me what happened. You don’t need to explain it.

Just tell me what happened, that’s it. A. I fell on him. Q. OK, and where was he when you fell on him? A. In my arms. Q. So he was in your arms, OK, and so where were you at? A. In the apartment. Q. (coughs) OK, so where in the apartment? A. Just in the living room. Q. OK, and what sat on the floor in the living room? A. There’s coffee tables and you know the table itself and the wooden floor. Q. Yeah, so there’s a wooden floor that’s in there. OK, and where did you land? Did you land on the floor itself or did you land on another object? A. The floor. Q. OK. Come on, listen. That’s a step forward.

So, you were carrying the baby? You fell and the baby wet to the ground and you landed on the baby. So what part of you landed on the baby? Your chest? Where were your hands, because I know when a person falls, their natural instinct is to try and protect themselves, right? A. Yeah. Q. So where were your hands? A. Right here. Q. And so where was the baby? Like so, when you fell, did you lose the baby, like the baby drop or did you go with the baby? A. I went with the baby. Q. OK. Did your arm go across the baby’s head or anything like that, trying to protect yourself or? A.

I don’t know, I just know that I did try to prevent from hitting the floor with my hands. Q. Did that land on the baby, your hands did? So your hands landed on the baby’s head. So like if the baby, if you would have had the baby and it fell and the baby went, you went like that, so his head would be to the side, I guess. So is that what happened, you landed on the baby? OK. So what happened? Did you hear anything?

A. That’s sort of, that, that’s it. Q. Is that the truth? So was this the same time that ah, A.S. was in the shower? So it wasn’t during feeding time that this happened. Ah, so what did you do then? What happened then? A. I tended to him. He was crying and that’s pretty much it. [pp. 77-79 Transcript] [68] Finally, A.H.H. says that he dropped E.H. out of his arms on the day before (November 26) and fell on his child the next day (November 27). Q. Did you drop the child? Just listen, I’m not asking you any more. That’s it. I just want to know if you dropped him. Yes or no? A. I did at one time. Q. OK.

So you did at one point. That same day? A. No. Q. When was it? A. I can’t really remember. I’m not, I don’t know. It doesn’t matter what I say. … Q. So you didn’t do it the same day? OK. So, but the day in question, the Sunday, you fell on him? And what, what did his head hit? A. The floor. Q. So his head did hit the floor? A. Um-hum. Q. There was no hand underneath his head? A. No. Q. And what part of your body landed on him? Were your hands in front of your chest? A. No. Q. Is that the truth? A. Yeah, that’s the truth. Q. How long before did you drop him? Was it the day before, on the Saturday? A. Yeah. Q.

And how did that happen? Same way you described earlier? A. Yeah. Q. So this happened back to back days? Are you being one hundred percent truthful right now? A. Yeah. [pp. 109-110 and 115-116 Transcript] [69] The above explanations given by A.H.H. on April 19, 2012 mark the first time he provided any detail regarding his role in E.H.’s injuries. Prior to this date, A.H.H., while at the IWK on November 28 and 29, 2011, provided scant information. I will now review the evidence of this as recounted by the S. family and as outlined in Dr. Larson’s report. Evidence of Mr. S., Mrs. S. and A.S. [70] Mr.

S. said that while at work on November 28, 2011, he received a call that his grandson was being airlifted to the IWK. Mr. S. and his wife, A.S. and A.H.H. all drove together to the hospital. Once at the IWK, Mr. S. said they were placed in a waiting room. When the doctor informed them that E.H. had multiple skull fractures, he recalls thinking, “How could this be?” Mr. S. said he was in shock, but recalled that his daughter then told the doctor of the couch incident. Mr.

S. says that after a subsequent visit from the doctor, “hours and hours after being at the IWK”, A.H.H. informed them that he had dropped the baby. Upon hearing this, Mr. S. said that he questioned A.H.H. about not telling them until this point, to which A.H.H. replied that he did not say anything “because you’d freak out”. This prompted Mr. S. to lose his composure and rush at A.H.H. The two were separated by security and thereafter kept in separate rooms at the hospital.

[71] Mrs. S. recalled that after arriving at the IWK, she, Mr. S., A.S. and A.H.H. waited in a small room and were met by the specialist, Dr. Soder. The family was then informed of the very serious injuries and Mrs. S. recalled A.H.H. having no reaction. She stated he was asked several times if anything could have happened, to which he repeatedly said “no”. Later, she recalls A.H.H. saying that he dropped the baby. She estimated that he admitted to this after four or five hours had passed at the IWK.

Asked why he did not tell them about this, she recalls him responding with words to the effect, “Because I knew you guys would get upset.” [72] Mrs. S. said that she and her husband became very annoyed and security had to be called to get Mr. S. off of A.H.H.. They were then separated from A.H.H. and have had no contact with A.H.H. in the time since. [73] A.S. recalled being at the IWK and being placed in a small room with her parents and A.H.H.. She remembered the doctor coming in to tell the family that E.H.’s skull resembled a “crushed egg”.

When queried by the physician about possible causes, A.S. described the couch incident. As for A.H.H., A.S. said that he did not say anything until the doctor came in a third or fourth time at which time “A.H.H. said he dropped the baby”. This prompted Mr. S. and Mrs. S. to become “quite upset” and confront A.H.H. about why he had not said anything, to which A.S. recalled he responded, “I was afraid people would freak out”. [74] According to A.S., A.H.H. “had a couple of different stories” as to when he first dropped E.H.

One related to a time when he was getting a bottle from the microwave and another occurred when E.H. was fussing and A.H.H. was getting a cloth. [75] A.S. said she was upset A.H.H. had not told her about dropping E.H. back when it occurred. She said the two have had no contact since the encounter at the IWK and, with reference to the IWK, “I just feel there’s a lot of lies.” Dr. Larson’s Expert Opinion Regarding the Alleged Accidental Drop(s)/Fall [76] At para. 25 of this decision, I refer to Dr. Larson’s review of IWK notes regarding the couch incident.

After quoting from her report at p. 6, I state that I will return to this part of her report with reference to A.H.H.’s explanation provided at the IWK. I now provide Dr. Larson’s

summary: The second fall occurred on Sunday November 27, 2011. A.H.H. reported that he was feeding E.H. and E.H. had vomited on himself. A.H.H. stood up and walked to get a cloth to clean E.H. up. As A.H.H. reached for the cloth, E.H. “somehow” fell from A.H.H.’s arms and landed on the laminate flooring on his forehead. He said E.H. cried immediately and then was fine. He also noted a bruise on his left temple. They did not take E.H. to the doctor after either of these falls. [77] Before writing her second report, Dr. Larson was provided with Exhibit 7 (the DVD of A.H.H.’s statement), along with the transcript.

When I review the entirety of Dr. Larson’s second report in the context of her viva voce evidence, I am satisfied that she accurately captured A.H.H.’s four versions of how E.H. was injured. Indeed, I am drawn to her

summary at p. 6 of her second report: On November 28, 2011, E.H., then 24 days old, was hospitalized with seizures and reduced consciousness, attributed to severe injuries that included bilateral and complex skull fractures, extensive bleeding in multiple layers of the brain, brain damage due to hypoxic ischemic injury, and hemorrhages within the retina of the eyes. When presenting for medical care, initially E.H.’s father, A.H.H., denied any injury event, but then subsequently reported an event involving a fall from his arms (at shoulder height) occurring about 24 hours before E.H. received medical care.

Later, in a warned interview, A.H.H. described a number of injury events as the likely cause of E.H.’s injuries: 1) He again described a simple fall from his arms, from shoulder height, directly onto the floor. 2) He then described a two-part fall from his arms, from shoulder height onto a chair, and then onto the floor. 3) He then described a single injury event in which A.H.H. at first fell onto his knees while holding E.H. He then reportedly either

a) fell while cradling E.H. in one arm and bracing himself with the other; or

b) fell with no arms supporting E.H., and no arms in front of his chest, allowing E.H. to fall with his head hitting the floor, followed by A.H.H.’s chest landing with his “full weight” on E.H.’s head. 4) He reported at times that E.H. had sustained both a fall from arms, followed by the event in which A.H.H. fell on E.H. Additional Evidence [78] Testimony from Mr. S., Mrs. S. and A.S., as well as from the warned statement of A.H.H., confirm that at the material time, A.S., A.H.H. and E.H. lived together in a small apartment connected to Mr. and Mrs. S.'s mobile home.

A.S. went through a number of the photographs of the residence as contained in Exhibit 1. The unit where she lived with A.H.H. and her newborn is a very small place which was built on to her parents' mobile home, originally as an apartment for her grandmother. The earlier referenced couch is in the main living room of the unit. This room opens into a small kitchen which includes the (approximate 5' in height) fridge with the microwave above it. Off of the kitchen and living room is a bedroom where A.S. said A.H.H. kept his weight training equipment, including the barbell she sketched (Exhibit 8). Mr.

S. [79] The remainder of Mr. S.’s direct testimony centered around his observations of his grandson up until the November 28 hospital admission. When asked directly, Mr. S. denied any knowledge or having any

part in injuries to E.H. [80] On cross-examination, Mr. S. confirmed that he and his wife had their grandson sleeping on their side of the mobile home during the night of November 27 and into the morning of the 28. Mrs. S. [81] A.S.’s mother testified that she attended at the hospital when E.H. was born. When he went home, Mrs. S. said E.H. spent most

of his time in A.S.’s and A.H.H.’s part of the mobile home. Mrs. S. said that there were no concerns regarding E.H.’s health until he started to bring up his milk. [82] Mrs. S. attended the appointment with Dr. Riley with her daughter and E.H. on November 24. She also attended at the IWK on the next day and she described the examination as “a good overhauling”. It was her recollection that A.H.H. did not attend this appointment. On the drive home, she recalled a stop at the Walmart in Bridgewater and that the baby was fine. [83] Mrs.

S. said that she and her daughter attended the Lions Club in Shelburne during the late afternoon/early evening of November 26. It was a Saturday and there was a major catering at the hall with Mrs. S. and A.S. volunteering. After perhaps three hours at the Lions hall, the women returned home. Mrs. S. noted that while they were gone, E.H. had been left alone with A.H.H.. [84] To Mrs. S.’s recollection, E.H. spent the night of November 26 with A.S. and A.H.H..

She said that on the next day, she and A.S. went out for approximately one half hour to the grocery store to pick up some new milk for E.H. (A.S. had switched E.H. to a different brand). Although not one hundred percent sure, A.S. thought that she and A.S. went to the grocery store at about 4:00 or 5:00 p.m. When they returned from the store, A.S. remembers offering to take E.H. in his bassinet for the night in order to give her daughter a rest.

She recalls taking him into her side of the mobile home at 9:00 or 9:30 p.m. and that it was the next morning when she woke up that “I noticed my little grandson was not the boy I remember”. [85] Mrs. S. said she brought E.H. to A.S. and they then decided to take him to the Roseway Hospital. It was at this point, at around 8:00 or 9:00 a.m., that they noticed some bruising on E.H.’s head as well as twitching and his eyes, “not focussing”. By this point, both A.H.H. and Mr. S. had left for work. [86] Mrs. S. said they arrived at the Roseway Hospital at approximately 9:30 a.m.

They waited for about ten minutes for E.H. to be seen. She noted he was “getting worse… He was with us but wasn’t with us… It was terrifying”. After E.H. was seen and the decision was made to airlift him to the IWK, Mrs. S. called her husband to make plan to drive to the IWK. [87] On cross-examination, Mrs. S. said that she had no problems with E.H. on the night before his November 28 IWK admission except he was “a little sleepy”. She then recalled that he stirred a few times and that she had taken him to the living room and changed his diaper because it looked like “he was trying to have a bowel movement”.

She said that it was during the next morning when she took him over to A.S.’s side of the mobile home that she noticed a bruise. Following this, an hour or two later, “Everything just changed.” A.S. [88] With the assistance of Exhibit 1, A.S. went over the layout of the “granny suite” attached to her parents’ mobile home where she lived with A.H.H. and E.H.. She also gave evidence with respect to her relationship with A.H.H.. The two began dating approximately two years before E.H.’s birth. They began living together about a year or so before he was born.

She said A.H.H. had a good relationship with her mother and, in the beginning, with her father. A.S. elaborated, “… He made a connection… they both had the same kind of cancer [testicular].” [89] A.S. thought that A.H.H.’s cancer diagnosis was around 2008 and that when she met him, he was in remission. When she became pregnant with E.H., they were “shocked” because A.H.H. had been told by his cancer specialist that he would be unable to have children. [90] A.S. confirmed E.H. was born at the South Shore Regional Hospital in Bridgewater.

She recalled her mother being in the delivery room and A.H.H. waiting in a nearby room. She described E.H. as healthy with “no complications at birth that I recall”. She remained in hospital with E.H. for five days on account of his jaundice. [91] A.S. said that once home, there was a “new schedule… It was hectic.” As for A.H.H., he “was not handling it the greatest. He did not adapt well. He was starting a new job and it was hard for him to get sleep. I took care of E.H. mostly. A.H.H. didn’t do much with E.H..” [92] A.S. described her newborn as “a good little boy”.

His jaundice had cleared up and there were no issues until he started to spit up his formula. She recalled taking E.H. to Dr. Riley and that her mother attended the appointment. On Dr. Riley’s recommendation, she made arrangements to take E.H. to the IWK on the next day, i.e. November 25. [93] A.S. said that they took E.H. to the IWK on November 25 and she described it as a “checkup”.

In her words, “They said E.H. probably had some kind of flu and I could change his milk… I did and he started keeping it down… E.H. seemed to be fine.” [94] A.S. said that November 26 was a “normal day” and that the next day there was nothing out of the ordinary with E.H. except that he was sleepy. [95] A.S. provided evidence consistent with her mother’s regarding their attendance at the Lions Club on Saturday evening and buying formula the next day. Consistent with her parents’ evidence, she said that E.H. slept on her parents’ side of the mobile home the night of November 27.

As to how E.H. was behaving on November 27, “E.H. was sleepy that day… I thought it was normal for newborns”. [96] A.S. said that when she saw her baby on the morning of November 28, he seemed to be “staring off with his eyes”. She also detected twitching movements with his hands. She recalled discussing this with A.H.H., saying she should perhaps take E.H. to the doctor. A.S. recalls A.H.H.’s response was something to the effect that she worried too much. When she discussed E.H.’s symptoms with her mother, the two agreed he was “doing like a seizure activity”. A.S. and Mrs. S. discussed this with Mrs.

S.’s sister (who had come over for a visit) and shortly thereafter it was decided they should take E.H. to see the doctor. [97] A.S. said that Dr. Riley knew something was serious and he arranged for the LifeFlight to the IWK. A.S. and her mother then contacted Mr. S. and A.H.H. at work and they met up at the Roseway Hospital. When told about the situation, A.S. recalled A.H.H.

saying something to the effect of, “He thought E.H. could have his cancer and that was why he might be acting the way he was.” [98] A.S. said that following E.H.’s stay at the IWK, he was put in foster care for approximately six months. Once Children and Family Services completed their investigation, E.H. was returned to his mother. [99] When asked about A.H.H.’s “alone time with E.H.”, A.S. reiterated the Lions Club visit (November 26) and the time when she went to pick up the milk (November 27).

The only other times during November 26 and 27 related to when A.S. was bathing, for about 20-30 minutes on each of those days. She said that the first time she saw any injury on E.H.’s head was after his head was shaved at the hospital. She recalled that at the time, E.H. “had a head full of thick hair”. [100] A.S. denied ever dropping E.H. and/or assaulting him. She was not aware of any time when the infant had fallen except for the couch incident.

She confirmed that E.H. was never in anybody’s care except for those brief occasions with her parents and A.H.H. [101] During the final segment of A.S.’s direct examination, she went over E.H.’s current health status. E.H. is now approximately four-and-a-half years old and suffice it to say he has significant physical and mental challenges. He does not walk and is being fitted for a wheelchair.

He requires ongoing sessions with specialists and has not been meeting milestones. [102] On cross-examination, parts of A.S.’s preliminary inquiry testimony were put to her which had the overall effect of suggesting she noted changes in E.H. on Sunday as opposed to Monday morning. A.S. addressed this discrepancy by indicating that at the time of the preliminary inquiry she had confused the two days. [103] A.S. reiterated that she told A.H.H. about E.H.’s twitching before A.H.H. went to work, “probably between 5:00 and 6:00 a.m.” on November 28.

She repeated, “That’s when A.H.H. said I worry too much.” A.S. did not think she went back to bed when A.H.H. went to work; however, she acknowledged “my days are a blur”. On further questioning, she acknowledged it is possible she may have noted changes in E.H. starting on Sunday night, but “Monday was when it was more noticeable so I took him to the hospital”. [104] A.S. agreed that A.H.H. told her he was “scared of [her] parents’ reaction and that they would think he was a bad father”. Further, she agreed A.H.H. is not an emotional person and he is somewhat of a loner.

On cross-examination, she also acknowledged that she never felt A.H.H. to be a violent person; “probably quite the opposite”. As to whether A.H.H. was clumsy, when reminded of her preliminary inquiry evidence she agreed he “could be clumsy”. [105] A.S. confirmed that during the weekend of November 26 and 27, A.H.H. was at home. She recalled times when they were both in the small granny suite, albeit separated. For example, she said A.H.H. could have been working out with his weight set in the bedroom or one of them may have been in the shower.

On redirect examination, A.S. drew a sketch of the barbell (Exhibit 8) she thought A.H.H. would have been working out with. Parties’ Closing Arguments Defence [106] The Defence concedes that jurisdiction and identity are not in issue. Further, the Defence acknowledges that A.H.H. (pursuant to Exhibit 7) does not believe A.S. or her parents harmed E.H. Again with reference to the warned statement, the Defence says that rather than four versions, A.H.H. really gave explanations which amount to variations of two versions.

Further, the Defence emphasizes that what is consistent about A.H.H.’s evidence is that throughout he denies any intentional act. The Defence points to the evidence that A.H.H. is not a violent person and it is not in his character to have done such

an act. Accordingly, it is the Defence’s position that A.H.H.’s actions must be found to have been accidental and, therefore, A.H.H. must be found not guilty. [107] With respect to the count relating to a failure to seek medical assistance, the Defence says that the evidence does not show that anything was wrong with E.H. until the morning of November 28, i.e. just before he was taken to the hospital by A.S. and Mrs. S.. Indeed, Defence counsel asserts in his closing argument that A.H.H. did not know anything was wrong with E.H. until he received the call at work. Further, the Defence points to Dr.

Larson’s opinion, which they say stands for the proposition that earlier treatment for E.H. may not have made an appreciable difference. Crown [108] The Crown acknowledges this to be a circumstantial case. Having said that, they note it is not necessary to prove the precise method in which A.H.H. inflicted the injuries upon baby E.H. They point out the child was catastrophically injured and he is left with significant development delays including not being able to ambulate on his own. [109] Ms.

McKinney asserts that the evidence points to the inexorable conclusion that A.H.H. is responsible for the infliction of the injuries. The Crown points to after-the-fact evidence whereby A.H.H. delayed in disclosing the injury event to anyone until several hours after E.H.’s admission to the IWK on November 28. In answer to the Defence submission that A.H.H. may have feared reprisals from Mr. and Mrs.

S. if he reported, the Crown says there are several other individuals he could have confided in, for example, A.S., C.S.T.M. and the medical staff at the Roseway Hospital or IWK (previous to when he did report it to the doctor at the IWK). [110] The Crown emphasizes that A.H.H. changed his story at least four times when he was questioned by Sgt. Vardy. Further, they point to the expert and medical evidence and argue that A.H.H.’s explanations amount to “sheer implausibility”. [111] The Crown takes issue with A.H.H.’s demeanor during his warned statement.

Furthermore, they say the Defence’s position that A.H.H. is of good character leads to propensity reasoning with inherent dangers. In this regard, they commend to the Court the decision of R. v. Baldwin , 2002 NSSC 102 , wherein Justice Goodfellow relied on the Newfoundland and Labrador Court of Appeal to note as follows at para. 20: [20] The Court of Appeal, O’Neill J.A. stated at the bottom of page five:

Physical child abuse frequently falls into two distinct types: (

i) the application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injurieswill result, and (ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and,acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. [112] With respect to the failure to provide necessaries of life, the Crown draws on the majority decision of the Supreme Court ofCanada in R. v.

J.F., 2008 SCC 60, wherein Chief Justice McLachlin stated as follows at para. 37: I agree with McIntyre J. that where criminal negligence is “piggy-backed” onto an alleged failure to provide the necessaries of life — asit was explicitly in Tutton and, in effect, here as well — the analysis may be expected to proceed in two stages. The jury would thenconsider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accusedfailed in that duty. If so, the jury would be entitled to find that the accused committed an offence under s. 215(2)(a)(ii).

The jury wouldthen be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for thelife or safety of the child. If so, the jury would be bound to find the accused guilty of criminal negligence. If not, the jury could still findthe accused guilty of failure to provide the necessaries of life, but not of criminal negligence. Analysis Circumstantial Evidence in Relation to the Three Charges [113] The Crown’s case against the accused in entirely circumstantial.

In order to find A.H.H. guilty, I must be satisfied that his guilt isthe only reasonable inference from the evidence considered as a whole. On this issue, I refer to R. v. Uhrig, 2012 ONCA 470, at para.13: When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it isessential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required ofthe Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, (SCC), [1988] 2 S.C.R.345, at p. 361.

Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inferencesought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items ofevidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered,each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basisfor a conviction: Cote v.

The King (1941), (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. [Emphasis added] [114] In assessing the evidence, I am mindful of the presumption of innocence and the requirement for a conviction to rest on proofbeyond a reasonable doubt. In R. v. Maloney, 2011 NSSC 477, Justice MacAdam. considered ss. 215(2)(

b) and 268 in the context of aninfant victim. MacAdam, J. properly began his analysis providing background in respect of the two fundamental principles, as follows: [43] There are two fundamental principles that govern every criminal trial: the presumption of innocence and the requirement for aconviction to rest on proof beyond a reasonable doubt. [44] The presumption of innocence remains with an accused throughout the trial. It only ceases to apply if, after considering all theevidence, the court is satisfied beyond a reasonable doubt that the accused is guilty.

The accused has no obligation to prove they are notguilty, nor have they any obligation to explain the evidence presented by the Crown. The law presumes them to be innocent until a courtof law, having considered all of the evidence, is satisfied that the Crown has proven every element of the offence charged beyond areasonable doubt. [45] This burden of proof on the Crown marks the second fundamental principle in our criminal law. Proof on a balance ofprobabilities, the civil standard, is not sufficient.

The offence must be proved beyond a reasonable doubt, a requirement that extends toevery element of the offence charged. There is no burden on the accused. If the Crown fails to prove a single element beyond areasonable doubt, then the accused must be acquitted. In considering the principle of reasonable doubt, regard must be had to itsmeaning, as outlined by Cory J. in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 at 336-337 and R. v. Bisson, (SCC), [1998] 1 S.C.R. 306, and as expanded and clarified by Iacobucci J. in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at265-269.

Proof beyond a reasonable doubt is more than proof on a balance of probabilities and less than proof to an absolute certainty. But it is "much closer to absolute certainty than to proof on a balance of probabilities": Starr at 267. [46] A reasonable doubt is a doubt based on reason, on the logical processes of the mind. It is logically connected to the evidence,including any conflicts which may exist, after having considered the evidence as a whole. In considering the evidence, including theexhibits, I recognize I do not necessarily have to accept or reject all the evidence of any witness.

I am permitted to accept part of it. I amrequired to direct myself to all of the evidence bearing on the relevant issues in order to attribute the correct weight, recognizing thatindividual pieces of evidence must not be examined in isolation but must be considered in the context of the evidence as a whole. [47] In considering the evidence of the various witnesses, I recognize that witnesses see and hear things differently anddiscrepancies do not necessarily mean that the testimony of a witness should be disregarded. Discrepancies in trivial matters are oftenunimportant.

In assessing credibility, one must consider the opportunity the witnesses had to observe the events to which they testified,the extent to which the witnesses had any interest in the outcome of the trial or any motive for either injuring or favouring the accused. In doing so, I must consider whether the witness is entirely independent and whether the testimony is reasonably internally consistent. [emphasis added]

[115] In addition to adopting the above, I would add that when assessing credibility I am mindful of conducting a proper W.(D.)analysis. In R. v. W.(D.), [1991] 1. S.C.R. 742 at paras. 27-28, Justice Cory provides clear instructions for a trier of fact when assessingcredibility: 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to thatissue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe theaccused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering theaccused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546(Ont. C.A.), approved in R. v. Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [116] In R. v. H.(C.W.) (1991), (BC CA), 3 B.C.A.C. 205 (B.C.C.A.), Wood J.A., speaking for the Court,commented on the R. v.

W.D. instructions and stated: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [117] The Supreme Court of Canada again examined the issue of assessing credibility in the context of reasonable doubt in R. v.Dinardo, 2008 SCC 24, where Justice Charron spoke for the unanimous Court: 23 The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.).

Indeed, as Chamberland J.A.himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instructionbe respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. Inmy view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency ofhis reasons for judgment. [Emphasis added] [118] In this case, I was not afforded the opportunity to observe A.H.H. testify. Nevertheless, the accused’s evidence was brought inthrough the warned statement (Exhibit 7). I will apply the W.(D.) analysis when I consider this evidence. The Test in R. v.

W.(D.) [119] First, if I believe the evidence of A.H.H., I must acquit. Second, if I do not believe the testimony of A.H.H. but am left with areasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I have to ask myself whether,on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by the evidence of A.H.H.’s guilt. Saidanother way (see R. v.

H.(C.)W.), after a careful consideration of all of the evidence, if I am unable to decide whom to believe, I mustacquit. [120] On the basis of Exhibit 7, I cannot say that I believe all of what A.H.H. said. Secondly, his evidence does not cause me to haveany reasonable doubt. Thirdly, given that I am not left in doubt by the evidence of A.H.H., I must now ask myself whether, on the basisof the evidence which I do accept, I am convinced beyond a reasonable doubt by the evidence of the guilt of A.H.H.. [121] I have previously canvassed the expert evidence at some length. To this I would add, Dr.

Larson’s penultimate view expressedon the stand: On the whole, I felt E.H.’s injuries consistent with a crush injury and consistent with a severe impact injury… Here, they are so severe asthey penetrate into the brain… This is a very complex skull fracture. … On the whole, the evidence suggests a very significant application of force to E.H.’s head – impact and crush force. … The totality of the injuries are from a single event based on the symptoms presented.

[122] Further, in her second report, after the excerpt set out at para. 86, Dr. Larson opines as follows: The described injury events in which E.H. fell out of A.H.H.’s arms would not create enough force to result in the totality of the severeinjuries that E.H. sustained. This applies to either description 1) in which E.H. fell onto the floor, or description 2) in which E.H. firststruck a chair.

The third event, as initially reported, in which A.H.H. fell while E.H. was cradled in one arm and the fall was braced byA.H.H.’s other arm, would likely have resulted in much less serious injuries than those that E.H. sustained. The third event as laterreported, in which E.H.’s head was not supported by A.H.H.’s hands, and A.H.H.’s hands were not in front of his chest to brace the fall[redacted] if it did happen as described, it could plausibly have caused E.H.’s injuries. The fourth description given by A.H.H. is acombination, with events 1) or 2) occurring on November 26, followed by event 3) on November 27.

Given that E.H. was reported byseveral family members to have been asymptomatic on November 26, it seems very unlikely that any injury event on that day wouldhave made a significant contribution to the very severe injuries that E.H. sustained. None of the injury events described by A.H.H. appear to be a plausible explanation for E.H.’s injuries, and the possibility of an inflictedevent remains high. [Emphasis added] [123] Picking up on Dr. Larson’s opinion, I am of the view that A.H.H.’s explanations are completely implausible. To my mind, thetotality of his explanations amounts to non-credible evidence.

Further, when I consider the totality of the evidence, it is clear to mebeyond a reasonable doubt that A.H.H. is guilty of the crimes charged. From his warned statement and from the evidence of A.S., it isapparent that he had time alone with his son on November 26 and 27, 2011. Indeed, it is my finding that during one of these times whenhe was alone with E.H., A.H.H. inflicted the injuries to the baby’s head.

Rather than unintentionally falling on E.H. or dropping him, itis my determination that A.H.H. intentionally assaulted his infant son, thus causing the catastrophic injuries documented at the hospitalson November 28, 2011. In fact, it is the nature of the head injury as explained by Dr. Larson which causes me to conclude that whathappened to E.H. was not occasioned by the preposterous scenarios A.H.H. attempted to explain in his warned statement.

Rather, it ismy finding that A.H.H. intentionally applied brutal, extreme force to E.H.’s head in a manner that caused the following injuries: • complex skull fracture; • bilateral extra-axial complex fluids/bodily collections; • tentorial foci bleed; • brain swelling and probably ischemic injury of at least the right occipital region. [124] The fact that A.H.H. had not previously demonstrated an inkling of such behaviour does not sway my

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