R. v. D.M.G., 2016 NSSC 235

Supreme Court of Nova Scotia Citation: R. v. D.M.G. , 2016 NSSC 235 Date: 20160815 Docket: CRS No. 446148 Registry: Sydney Between: Her Majesty the Queen v. D.M.G. Library Heading Restriction on Publication: Pursuant to s. 486.4 (2.1) of the Criminal Code of Canada Judge: The Honourable Justice Patrick J. Murray Heard: June 6 – 15, 2016 in Sydney, Nova Scotia Final Oral Submissions: June 16, 2016 Oral Decision: August 15, 2016 Subject: Criminal law

Summary: Accused charged with aggravated assault and assault causing bodily harm of 18 month old step- daughter. Serious injuries resulting; including brain injury, liver, retinal hemorrhages, spine injuries and multiple bruising. Accused gave statements to police. Voir dire held. Statements ruled voluntary. Statement evidence of Accused said he was with child and she collapsed after choking on glass of water. Father calling 911 and child rushed to hospital. Accused stating at trial mother with child when child fell but he claimed it was him to protect mother.

Accused stating he was not in his right state of mind when he gave statement to police. Issues: Did crown meet burden of proving beyond a reasonable doubt it was the Accused who committed offences?

Result: Expert evidence of pediatrician accepted to establish injuries were inflicted. Court finding Accusedaware of what police were asking him, and of answers given by him. WD applied as Accusedtestified. Accused convicted of aggravated assault. [s. 268(1) of C.C.C.] Accused found not guilty on charge of assault causing bodily harm. [s. 267(

b) of C.C.C.] Caselaw: Criminal Code of Canada; R v. W(D), (SCC), [1991] 1 S.C.R. 742; R v. Rahman,2012 NSSC 235; [affirmed on appeal at 2014 NSCA 67]; R v Hartling, 2016 YKTC 22 ,2016 Y.K.T.C. 22. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. D.M.G., 2016 NSSC 235 Date: 20160815 Docket: CRS No. 446148 Registry: Sydney Between: Her Majesty the Queen v. D.M.G. Restriction on Publication: Pursuant to s. 486.4 (2.1) of the Criminal Code of Canada Judge: The Honourable Justice Patrick J.

MurrayHeard: June 6 – 15, 2016, in Sydney, Nova ScotiaFinal Oral Submissions: June 16, 2016 Oral Decision: August 15, 2016Counsel: Steve Melnick, for the Crown Blair Kasouf, for the Defendant, D.M.G.

Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. ** Editor’s Table ** Provision Changed by In force Authority 486.4 2005 c32 s15 2006 Jan 2 SI / 2005-104 486.4 2010 c3 s5 2010 Jun 29 R.A. 486.4 2012 c1 s29 2012 Aug 9 SI / 2012-48 486.4 2014 c25 s22 2014 Dec 6 Act, s 49 486.4 2015 c13 s18 2015 Jul 22 Act, s 60(1) ******

S.C. 2005, c. 32, s. 15, as amended by S.C. 2005, c. 43, s. 8(3), effective November 25, 2005 (Act, s8(1) and (3)); S.C. 2010, c. 3, s. 5; S.C. 2012, c. 1, s. 29; S.C. 2014, c. 25, ss. 22, S.C. 2015, c. 13, s. 18 By the Court (Orally): Introduction [ 1 ] On October 6, 2014 at 1:46 p.m., DMG made a 911 emergency call advising that his step-daughter of 18 months, HM, had swallowed a glass of water, had choked, then collapsed and was unresponsive. [ 2 ] When the EHS paramedics arrived they found the child badly bruised and semi-conscious. The child was having trouble breathing and getting oxygen.

Within a minute of arriving at the residence the EHS paramedic left with the child in his arms on an urgent basis. [ 3 ] The child was taken in the ambulance to the Glace Bay General Hospital. On route it stopped briefly to pick up a second attendant to assist with the child’s breathing. [ 4 ] The paramedics were attempting to intubate the child to improve her breathing. Before they were able to do so they had reached the Glace Bay General Hospital. She was intubated at there and then transported to the Cape Breton Regional Health Care Complex. [ 5 ] She was assessed by Dr.

Lynk, at the Health Care Complex and from there she was airlifted to the IWK Children’s Hospital in Halifax. She remained there for almost three weeks. [ 6 ] The child was closely monitored by Dr. Alhfild J. Larson and the IWK protection team throughout her stay at the hospital. Dr. Larson has provided an extensive detailed medical report. She was qualified to give expert evidence in the field of pediatrics as to the extent of the child’s injuries as well as what caused or contributed to them.

Her expertise includes child maltreatment. [ 7 ] DMG, the child’s stepfather, was subsequently charged with committing an aggravated assault on the child, HM, contrary to section 268(1) of the Criminal Code of Canada , and with committing an assault causing bodily harm to the child, contrary to

section 267 (

b) of the Criminal Code . [ 8 ] Mr. MG has denied causing any harm to the child. [ 9 ] He stated that on the afternoon of October 6, 2014 he was working in his basement when he heard “crash, bang, boom”. He did not respond immediately. He heard the same noise again, and words from the child’s mother. He said he then “flew up the stairs” and found the child laying on the floor. [ 10 ] He testified it was 1:30 p.m. and he immediately sent the mother from the home to pick up his daughter, who was due to be let out of school at 2:15 p.m.

Almost two years has transpired since this event. [ 11 ] The evidence of DMG at trial differs from statements previously made by him in connection with this matter to the investigating officers. [ 12 ] There were 16 witnesses who testified at the trial including the investigating officers, Constables Barrington and Oliver, and the registered nurses at the Cape Breton Regional Hospital. The EHS attendants also testified as well as the child’s mother. [ 13 ] The mother, NMN, testified she was not present in the home when the events of October 6 th occurred. She said she had left the home earlier to pick up Mr.

MG’s daughter. [ 14 ] She testified that on her walk to the school she received a telephone call from Mr. MG that something happened but the call was only brief. She tried to call him back. She was later picked up by Mr. MG’s mother in a cab after she had retrieved Mr. MG’s daughter. She was taken directly to the hospital. [ 15 ] NMN testified she is 25 years of age. She has three children. She gave birth to her son, JCMG 3 weeks prior to these events on September […], 2014. H and C are her biological children. Mr. MG is the father of C. He has his own daughter, K, who was seven at the time and attending school.

The mother denies causing any harm to her daughter. [ 16 ] The Crown relies upon the oral statements given by Mr. MG at the time of the initial call on October 6, 2014 to officers, and the 911 operator. In addition, the Crown relies upon the written statements given by Mr. MG on the evening on October 6, the date of the incident and a subsequent statement given March 19, 2015, the day that Mr. MG was arrested for these offences. [ 17 ] The written and oral statements were subject to a voir dire . In that decision I ruled that the oral and written statements made by Mr.

MG (to 911 and the police) on October 6, 2014 and the written statement given on March 19, 2015 were made voluntarily and therefore admissible.

[18] The Crown relies on these statements as substantive evidence of DMG, admitted for their truth. [19] The Defence submits it is a question of the proper weight to be attributed to the statements of Mr. MG in the circumstances. Mr. MG states he was not in his right mind when he gave them due to the lengthy and overly aggressive nature of the March 19th policeinterview. As such, the Defence argues little or no weight should be given to these statements. Crown’s Position [20] The Crown’s position is that the injuries suffered by HM were inflicted by the DMG, causing her to be wounded and causingher bodily harm.

The Crown relies on the medical report of Dr. Larson. (Exhibit 6) [21] The Crown submits in particular, the statement given upon his arrest constitutes an admission by Mr. MG that it was him whowas with HM at the date and time on October 6, 2014, and he who inflicted the injuries to her. [22] The Crown also relies on the evidence of NMN. Before she left for the school that afternoon, the child’s mother said there were no injuries to H, other than the several bruises, of which the parents were aware. H had fall from a chair at home on October 5th. hitting her mouth on a microwave stand.

She was taken to hospital for that fall by her parents. Defence’s Position [23] The Defence’s submits that DMG and NMN had a normal parental relationship with their three children. H was an activetoddler with the usual bruises and scrapes. As concerned parents the couple made sure the child was treated when injuries occurred. [24] She had difficulties with her left arm and suffered a fracture and swelling. There was evidence that these were due toswinging her around (her grandfather), playing with her mother, and the problems with the crib. [25] There also was evidence that H would bang her head when acting out.

She fell down the stairs twice. [26] The Defence says that all of her medical needs were attended to with doctors, hospitals and follow up. NMN was described assomeone that would take the children to the hospital even for a “paper cut”. [27] With respect to the Accused’s statements to the police, the Defence argues they are not reliable and should be given noweight. During the second statement Mr. MG was in custody for a total of 14 ½ hours, the statement itself lasting between 6 - 7 hours.

They say it is not uncommon for a witness to give a statement that they do not adopt at trial. [28] The Defence argues that the Accused was not in his right mind. They submit due to the long and intensive questioning byexperienced police officers, that he was “not functioning on all cylinders”. [29] Mr. MG gave evidence at trial. He stated it was the child’s mother not he who was with the child at the critical time on October 6th, 2014. Mr. MG said he asked what happened. He was told that H fell. He immediately told N to leave to pick his daughterfrom school.

When asked why he did not reveal this earlier, he stated he was protecting N. [30] DMG states he attempted to revive H by giving her CPR. He has made an outright denial of the charges. He called hismother WMG before he called 911. He says the injuries were accidental and on the evidence there is a reasonable doubt. [31] The Defence submits this is a case of “who done it”? As Mr. MG testified, the well-known case of R v. W(D), (SCC), [1991] 1 S.C.R. 742, applies. The Defence says DMG should be believed, or if not that his evidence should raise a reasonabledoubt.

They say the Crown has not proven its case beyond a reasonable doubt. Issues 1. Did DMG commit an aggravated assault upon the child, HM, contrary to section 268(1) of the Criminal Code of Canada? 2. Did DMG commit an assault causing bodily harm upon the child HM, contrary to section 267(1)(

b) of the Criminal Code ofCanada? Burden of Proof The Crown has the burden of proving beyond a reasonable doubt that the Accused committed these offences. The Accused has noburden to meet. The burden remains with the Crown at all times. Essential Elements of the Offences Aggravated Assault – s. 268(1) [32] The essential elements of the offence of aggravated assault are as follows: 1. The intentional application of force by the Accused to the child; 2. That there was a lack of consent – this is not an issue here as the child is 18 months; 3. That the Accused knew there was not consent – again this is not an issue; 4. That the force intentionally applied wounded HM;

[ 33 ] “Wound” means to injure someone in a way that breaks, cuts or pierces or tears the skin on some part of the person’s body. It must be more than trifling or minor, such as a scratch. ( R v. Rahman , 2012 NSSC 235 ; [affirmed on appeal at 2014 NSCA 67 ]) Assault Causing Bodily Harm – s. 267 (b) [ 34 ] The first three (3) elements of this offence are the same as those for aggravated assault:

i) intentional application of force; ii) lack of consent; and iii) knowledge of lack of consent. Consent is not an issue in this proceeding given the age of the alleged victim. [ 35 ] The fourth element is that the force intentionally applied caused bodily harm. [ 36 ] “Bodily harm” means any kind of hurt or injury that interferes with another person’s health or comfort.

It has to be something that is more than just brief or fleeting, or minor in nature. [s. 2 C.C.C.] The Crown’s case rests upon the Court’s acceptance of the medical evidence presented as proving beyond a reasonable doubt that HM suffered injuries and that those injuries were the result of non-accidental trauma. [ 37 ] Care must be taken by the Court to ensure that any recollections, opinions and inferences drawn by witnesses when relating events that occurred in the past are based on personal observations and medical or scientific facts. ( Rahman , para. 3) [ 38 ] The Court is well aware of the dangers associated with blindly accepting the expert’s report as to the cause of injuries.

The Court is cognizant that the standard of proof in medical terms is very different than that applied in a criminal trial. The opinions of the expert who testified must be closely scrutinized to ensure that they are based on documented facts. ( Rahman , para. 4) Admissions [ 39 ] In this case the Crown and Defence have agreed (pursuant to s. 655 of the Criminal Code of Canada ) that certain matters are not in contest. In Exhibit # 1, Crown and Defence have agreed as follows; 1. Place: At or near […], Glace Bay, Nova Scotia; 2.

Date and time : On or between the 1 st day of May, 2014, and the 7 th day of October, 2014; 3. Jurisdiction : At […], Glace Bay, in the Cape Breton Regional Municipality, in the County of Cape Breton, in the Province of Nova Scotia; 4. Identity :The identity of the Accused insofar that the person charged as DMG, is the person present in Court answering to the charge and is the same person alleged to have committed the offence as set out in the Indictment. The Evidence Dr. Larson [ 40 ] The Crown presented the expert evidence of Dr. Larson. A voir dire was held and I accepted Dr. Larson’s qualifications.

I was satisfied that all of the requirements for allowing her to testify as an expert had been met including her primary duty to the Court to be objective and unbiased. [ 41 ] The scope of Dr. Larson’s qualification as an expert is as follows: A medical practitioner licensed to practice medicine in the Province of Nova Scotia and qualified to give expert opinion evidence on pediatrics medicine, including the diagnosis, treatment and cause of injury, trauma, maltreatment, infection and disease in children. [ 42 ] I will say at the outset that Dr. Larson was an impressive witness.

She was helpful and open minded in her responses. She was asked if she was prepared to carry out her primary duty to be impartial and objective. Her response was “absolutely”, recognizing the importance of that duty. [ 43 ] Dr. Larson’s report is detailed and comprehensive. She concluded that while not all of the injuries were inflicted, the most serious of the injuries were caused by inflicted trauma.

Her report contains a detailed history of the health and medical records including the records (since birth) at the Glace Bay General Hospital and Cape Breton Regional Hospital concerning this matter, entered as Exhibits 9 and 10. [ 44 ] Dr. Larson’s report contained a detailed analysis of all events and injuries reported and her opinion of those injuries that she believed to have been inflicted and not accidental in nature. She stated she was cautious in her opinions.

If there was some plausible reason that an injury could be accidental or some doubt as to whether an injury was intentional, she elected to conclude that the injury was accidental or of an undetermined cause. For example, with respect to the child’s pulled elbow (“sub-luxed radial head”). She stated that while an inflicted cause cannot be excluded, the history reported suggested it was an accidental event. Another example are the subconjunctival hemorrhages in the right and left eyes. She stated there are a large number of possible causes for these and that inflicted trauma is a plausible cause.

However because there were other plausible causes, for example a reported “choking spell”, she concluded that while concerning, they have an unknown cause. [ 45 ] Dr. Larson essentially confirmed her report at trial. She made one correction that she said was important. On page 21 of her report she makes the statement that “a new CT Scan of the brain is ordered. This demonstrates no significant change.” Instead of stating no significant change Dr. Larson corrected it to read, “there was new finding of brain edema or swelling affecting the right side.” [ 46 ] It was Dr.

Larson’s opinion that HM suffered injuries to her brain, (an initial injury and secondary injury); injuries to her spine (five compression fractures to her vertebrae); injuries to her liver, including a laceration; retinal hemorrhages in the both eyes with the

right eye being more severe; a subdural hemorrhage (which is bleeding between the scalp and the brain) and the extensive bruising. Dr. Larson was “struck” by the widespread bruising suffered by the child. The various sizes and locations of the bruises on her body, suggested strongly that they were caused by the intentional application of force. [ 47 ] Dr. Larson’s opinion was that these injuries were inflicted and caused by a traumatic event. In her view they were caused by the application of significant force.

She described the type of force or event as that of acceleration, deceleration (as in shaking), together an impact such as a blow or blows. It could be a combination of these forces she said. She further noted the child would have likely been in a flexed (or bent) position at some point resulting in the cervical injuries to the spine. [ 48 ] In reply to questioning from Defence, Dr. Larson stated that these events could all happen within a short span of time, involving a number of components. As far as the bruising, she stated that bruising is more difficult to “date”.

There is ample evidence that there were substantially more bruises on H on October 6 th , than the two or three which she had on October 5 th . This has been confirmed by a number of witnesses. As of October 5 th , she had a mark on her forehead, cheek and a bruise on her back. She also had dryness on her neck according to the triage nurse, Ms. Jamael. [ 49 ] In arriving at her opinion, Dr. Larson discounted and eliminated other possible medical causes for these injuries including blood disorders and disease.

She also stated that certain known events that pre-dated October 6 th ; such as the fall on October 5 th where H “hit her mouth”, would not have caused the injuries sustained to her. [ 50 ] The triage nurse, Ms. Dillon, saw H on both occasions at the Cape Breton Regional Hospital. She described H’s appearance and behaviour on October 5 th as that of a normal 18 month old child. She only glanced at her on the 6 th but was quite taken back and found it hard to believe it was the same girl given the extent of her injuries, as compared to her condition the previous day. [ 51 ] Dr.

Larson’s was asked by Defence counsel in cross-examination whether other events could have contributed to the injuries, such as the CPR. She was also questioned as to whether other events could cause the bruising. For example, the handling of H by various medical professionals in an emergency situation or choking on a glass of water. Dr. Larson was careful stating, nothing is impossible but her opinion was that none of these events, including a fall from a counter, would contribute to the extent of the injuries. [ 52 ] I have considered Dr.

Larson’s evidence in the context of all the evidence including that of Mr. MG. When asked about Dr. Larson’s evidence Mr. MG indicated he would not disagree with it. [ 53 ] Defence counsel had an opportunity to question Dr. Larson on her qualifications, her experience and on her evidence. None of the findings made by Dr. Larson were seriously challenged by the Defence. Numerous and significant injuries were identified by Dr. Larson. A breakdown of those based on the medical evidence is as follows: Retinal Hemorrhages [ 54 ] H sustained retinal hemorrhages to both eyes, the right eye was more severe.

These hemorrhages are caused by bleeding of the blood vessels of the retina. These type of hemorrhages may be localized or widespread. In H’s case they were numerous, and occurred in multiple layers of the retina and extended to the periphery for her right eye. In this case inflicted head trauma is a very likely mechanism. The characteristics of the hemorrhages to the injuries to H’s right eye are typical of inflicted head trauma and are otherwise quite rare.

In cases where the child experienced a combination of head trauma with retinal hemorrhages, the probability of inflicted injury is above 90%. [ 55 ] Further, when retinal hemorrhages are due to head trauma they are typically more severe on the same side as the head trauma. In H’s case Dr. Larson concluded the bruises on her face and head were worse on the right side, and included a “battle sign”, bleeding on the scalp in a particular location. It is associated with severe types of injury. [ 56 ] There is some difficulty dating retinal hemorrhages, but they usually resolve within four weeks.

In H’s case they first identified during her examination on October 8, 2014. These persisted when she was reassessed on October 17, 2014. They ultimately resolved by the end of November or perhaps sooner. [ 57 ] Dr. Larson concluded the right eye hemorrhages are typical for inflicted head trauma and rare in any other context. Subdural Hemorrhages [ 58 ] H sustained what are called intracranial injuries, many which were identified by CT and/or MRI scans.

One of these was a subdural hemorrhage. [ 59 ] A subdural hemorrhage results from bleeding in the space between the brain and the dura, which is the outmost membrane between the brain and skull. [ 60 ] The most common cause of subdural hemorrhage is trauma. There are other causes such as an aneurysm or bleeding problems and disorders. H was screened for other potential causes with negative results. [ 61 ] Subdural hemorrhage can be accidental but most often it would be caused by a significant injury event, such as a motor vehicle accident.

It is not normally a result from a fall by a toddler, nor would it result from head banging seen in healthy toddlers. [ 62 ] Subdural hemorrhage is significantly more common in inflicted rather than accidental trauma. Dr. Larson stated in her report than when a great deal of force is applied, the onset of symptoms is rapid. The child may well after severe symptoms, recover and then deteriorate again due to secondary complications of the initial injury.

The Crown suggests this is exactly what happened in H’s case. [ 63 ] None of the events reported, the fall on October 5, falls from being reportedly clumsy, or reportedly drinking a glass of water

would cause such a severe outcome, in Dr. Larson’s opinion. [ 64 ] In Dr. Larson’ opinion, the subdural hemorrhage was caused by a high level of force being applied to H, primarily on the right side. Considering the other injuries sustained, including subdural hemorrhages in varying locations, and the wide spread retinal hemorrhages, the cause likely included a component of acceleration and deceleration, in combination with a blow or blows to the head or being shaken or pushed against something. [ 65 ] Dr.

Larson concluded that these injuries almost certainly occurred between the evening of October 5 th when she was observed in hospital and the 911 call on October 6 th , at 1:46 p.m. Brain Injury [ 66 ] H suffered a brain injury, primarily on the right side of the brain. According to Dr. Larson the evidence suggests this damage was caused by changes to the brain, referred to as hypoxic/ischemic changes, associated with swelling, also known as brain edema. [ 67 ] In simple terms, the swelling contributed to changes which resulted in damage.

The swelling or edema is a secondary complication of the injury to the brain cells. It is one of the expected complications of significant trauma to the brain. This injury progressed during her hospitalization. [ 68 ] The indications are that the right side of the brain has less volume but it is too early to tell what the future may hold. With ongoing follow up this should become more clear, as stated in Dr. Larson’s report. Liver [ 69 ] Without detailing all of the information contained in her report, Dr.

Larson’s evidence was that H suffered damages to her liver and that this most likely occurred on the 6 th of October. It would be surprising if it did not, she said. She explained that the liver enzyme count was up when they first tested her blood, which raised a concern. She spoke about a contusion in the organ and a fracture. This meant that one part was swollen and in another part there was a tear. The CT scan showed fluid which she stated was in response to the injury. [ 70 ] In direct, she was asked by the Crown if there was any bruising that would point to or substantiate the injuries to the liver. Dr.

Larson referred to Photos 13 and 17 of Exhibit 8, as well as slide 7 of the IWK photos. Photo 13 she said showed a bruise near or over the liver. Photo 17 shows a bruising on the right side of the abdomen. [ 71 ] With respect to the liver and causation, Dr. Larson similarly concluded that the child sustained multiple forceful impacts against numerous areas, many of which were against her abdomen, noting the extensive bruising over the right side which overlies her liver. It was her opinion that these impacts injured her liver. Vertebrae [ 72 ] Dr.

Larson’s report and her evidence at trial concluded that H suffered fractures to her vertebra, which she described as compression fractures. There were five different compression fractures to the thoracic and lumbar spine, being T10, T11 and L1, 2, 3 with L1 being the most severe. T12 had no injury. [ 73 ] With respect to the spine injuries, Dr. Larson referred to a very large bruise on the lower back, and that this more or less overlies the vertebra at T10, 11, L1, 2, 3. It was not a not a “Mongolian” spot she said.

She explained that the liver is generally under the rib cage in normal adults, but in children it is lower. The photos of the bruise suggests it was lower. [ 74 ] With regard to the spine, Dr. Larson didn’t see anything in H’s history to explain the injury. She was asked hypothetically about injuries in a crib or child falling and was clear that a child would not generate enough force and velocity. She explained that a flexion mechanism with the child being bent or back curved forward in a jackknife position as the mechanism.

She spoke of very high falls and stated they are rare in toddlers outside a traumatic event. [ 75 ] She was asked in cross-examination about the fractures not being easily dated. She agreed that was the case but indicated the majority in children are symptomatic. The fact that H was walking around on October 5 th , makes it less likely this injury occurred prior to the 6th. She did note there was mention in the October 5 record to a bruise on the lower back.

She couldn’t completely exclude that they occurred before the 6 th , as compared to the injuries to the brain and retina, of which she was more certain of having occurred on the 6th. [ 76 ] In her report, Dr. Larson noted that H was evaluated as she was with the other injuries to determine whether there was an underlying condition that might cause the bones to be fragile. None was detected. In the end, Dr.

Lawson’s conclusion was that the spine vertebra fractures are very likely to have been caused by an inflicted injury, one that would require a significant amount of force, with flexion of the spine, mixed with a direct blow to the spine, given the very large bruise over the fractured area. [ 77 ] Dr. Larson was questioned by Crown and Defence as to the timing of the liver and vertebrae injuries. Dr. Larson stated that of themselves the injuries are difficult to date. There are however the hospital records and the photos taken which she had referred to above.

There is evidence as to the child’s condition as normal and healthy on October 5, but for the fall from the chair. Dr. Larson answered numerous questions about falls, with much essentially the same response. That falls in toddlers would not produce injuries with the severity found in H on October 6, 2014. Bruising

[78] In my discussion of the medical evidence, I have mentioned the bruising on the child a number of times. In her report, Dr.Larson (at p. 29) states they were observed in multiple locations, head and face, neck, upper and lower back, chest, abdomen, arms and legs. There were significantly more recorded on October 6th then had been recorded on October 5, 2014. [79] Dr. Larson testified she tried but gave up trying to count the bruises. She referred to a significant study called the Ten’s rule inher evidence. Essentially this deals with the size and location of the bruises.

Larger bruises and bruises in clusters, both of which arepresent here are significant for inflicted injury. In the study, in children under four years of age, bruises in the location of the trunk, ears,and neck, are much more likely to be inflicted. Dr. Larson stated that H had bruises in these areas. [80] In his evidence EHS officer Poleitti described the bruising to H, on her back, arms, legs, stomach, around her head, cheeks. He too reviewed the photos. In Exhibit 4 entered he described the bruises in detail. For eg. He immediately noticed “large fresh bruiseson her back”.

He also noted the abdomen was bruised more to the sides. He noted “a large bruise from the left side at the top of herdiaper to the midline in her torso”. [81] As was the case with respect other injuries, Dr. Larson stated that serious injuries in children from falls from a counter or atable, just aren’t seen. This doesn’t mean she said they couldn’t have a fracture or some bruises, but they would not be of the scope andseverity seen in this case. [82] In her evidence, Dr.

Larson explained and understood her role, which was to document and assess the physical findings and aspart of the child protection team, to determine why and how the injuries occurred. The role of the ICU is separate. She would provideadvice to the treatment team, who would themselves follow their process. [83] There was a battery of tests, a continual series of testing as matters unfolded. For example, both a CT scan and MRI wereconducted. The CT scan revealed significant neurological injuries which were the most concerning. The MRI is more sensitive inassessing injury to the brain.

In this regard, she described, what was meant by cascading, related to the secondary brain injury. Theprotection team arranged for extensive bloodwork, a complete series of investigations. There was a skeletal survey which x-rays bonesand bony injuries. [84] In my view, Dr. Larson clearly met her duty to be objective and impartial in her evidence. Her evidence made both medical and practical sense. I found she testified and gave her evidence in the context of H’s reported condition on October 5th, that of a normal,healthy child. [85] Dr.

Larson could not give an opinion on whom it inflicted these injuries. [86] I accept the evidence of Dr. Larson. [87] There can be little doubt that HM suffered serious injuries or that they resulted from the intentional application of force,meaning that they were inflicted and not accidental. [88] The real question is in this case is whether it was the Accused, Mr. MG, who applied that force? I repeat the burden is on theCrown and not on Mr. MG. He is presumed innocent in law. [89] Ms. MN and Mr. MG provided different testimony at trial as to who was with H when she suffered the injuries on October 6th.

Accordingly the question of guilt or innocence turns on an assessment of their respective credibility. In doing so, I am guided by theSupreme Court of Canada decision in R. v. WD, and am cognizant of the fact that this is not a credibility contest in which one version ispreferred over the other; rather it is an assessment of whether I am satisfied beyond a reasonable doubt as to the guilt of the Accused. [90] If I believe Mr.

MG I must acquit him, even if I do not believe him but I have a reasonable doubt I must acquit; only if I amsatisfied beyond a reasonable doubt, on the basis of evidence I do accept may I convict him. The burden rests with the Crown. R vHartling, 2016 YKTC 22 , 2016 Y.K.T.C. 22. [91] I turn now to address the main issue. 911 Call and EHS [92] The 911 call made by DMG is in evidence as Exhibit 1 and speaks for itself.

In it the Accused says “he” gave his daughter aglass of water and “she choked”. [93] EHS paramedics Keith Polettie and Chris Burrows were the first to respond followed by Constables MacKinnon andMacIssac. The EHS report was entered in evidence as Exhibit 4. Constable Blair MacKinnon [94] Constable Blair MacKinnon testified that he was dispatched to […] on October 6, 2014 at approximately 1:45 p.m. in responseto the 911 call concerning an unresponsive child. He attended the residence with Constable MacIssac. [95] As per the 911 call Constable MacKinnon understood that Mr.

MG had given his daughter a glass of water, that she stoppedbreathing and that Mr. MG had to perform CPR. [96] When he arrived on the scene he saw Mr. MG on the step of his residence. Mr. MG advised him that his step-daughter, HM,had already gone in the ambulance. [97] Mr. MG further advised him that his daughter had been in “time out” and had asked for a glass of water. Mr. MG stated hehad given her a glass of water and that she “chugged it”. He told her to drink it slow. The Accused advised that him that her eyes started

to go funny. He didn’t think she was breathing at which time he administered CPR. He had prior training in CPR but said it had expired. [ 98 ] Constable MacKinnon remained on the scene. The infant child born to NMN and Mr. MG was still there, and a neighbour who came to offer assistance. Other than Mr. MG and the neighbour, Constable MacKinnon stated there were no other adults present at that time. He stated that Mr. MG did not go to the hospital and was completely cooperative. [ 99 ] While awaiting further instructions from his supervising officers, Constable MacKinnon said Mr.

MG advised him that the child would have bruises on her. Mr. MG said the child was clumsy and never got to get her feet under her. Constable MacKinnon identified a cup on the floor which Mr. MG said she had been drinking from. There was some water on the floor. [ 100 ] Constable MacKinnon was not familiar with the condition of the child and had no contact with her. Mr. MG was transported to his parents’ home at […], Glace Bay. Constable MacKinnon was advised to secure the home as it was considered a crime scene. [ 101 ] Constable MacKinnon was asked if he had occasion to meet NMN. He did not.

He was asked if he had information as to where she may be. He stated Mr. MG told him that she had gone to pick up his daughter from school. NMN [ 102 ] Ms. MN testified she presently lives at […], and has resided there for almost 2 years. This is the residence of DMG but he no longer resides there and has been living with his parents at their home at […] since this incident. [ 103 ] She described her relationship with DMG. They met on December 4, 2013 and started dating. She resided with her parents M and J MN in […].

She moved in with DMG on February 26, 2014 to […]. [ 104 ] She had lived with her parents when H was born and stayed with them until she moved. She stated she did not get along well with her parents. She got along more with her mother than her father. Her father did not want her to move out but she decided to make the move. DMG worked, but sparingly as a […]. [ 105 ] She described H as a “loveable” child. She did not have any medical issues or problems. H had some trouble trying to walk. She would walk on her tippy toes.

She wasn’t steady on her feet. [ 106 ] The Crown reviewed with her the photos taken of her daughter at the Cape Breton Regional Hospital in Exhibit # 2. She stated that many of the bruises seen in the photos were not present on the 5 th of October. In particular, she testified the large bruise on H’s lower back in photos 1 and 2 was not present nor were the smaller bruises on her lower belly shown in photo no. 15. [ 107 ] She also stated the so called “battle-sign”, behind the right ear was not present the day before.

She said there was a bruise on her lower back near her buttocks as shown in photo 3 as distinct from the larger one shown. She also said there was one on her upper back as in photo 1, and the one of her cheekbone as shown in photo 17. She said this was from the fall from the chair and her hitting the cabinet. [ 108 ] She also stated there was redness on her neck as shown in photo 20. She saw marks on her chin but not on her forehead or around her eye on the 5 th . Shoulder, bum and cheek, and redness in her neck she saw the day before.

Other than those she identified there were no others present she said. [ 109 ] She was asked about October 6, 2014, and specifically, what happened on that day. [ 110 ] NMN testified that she took D’s daughter K, to school the morning of October 6, 2014. She said his daughter asked if she could pick her up from school in the afternoon. D was not with her, she said. He was home with the other two children. [ 111 ] She said she left at 1:30 p.m. for the school. She was asked if she observed H prior to leaving. N said that she said “good bye to H and her infant son C.

There were no issues she said and H seemed fine when she left. [ 112 ] She was questioned by the Crown about what happened after she left. She gave the following evidence: Q: Okay does anything happen after you leave the house. A: No, not that I can recall no. I just leave and take my time walking down the road. And then I got to about where the funeral home is and I get a call from D and he asks me where am I at, and I said I’m by the funeral home. And he said what are you doing? And I said I’m going to get K at […] what’s wrong. He said call right back. So I kinda got concerned cause I knew something was wrong.

Q: So what if anything do you do? A: I start panicking cause I figured something happened to one of the kids, or they got sick or something and plus where C is a new baby so I figured something must have happen. I called him back cause I was worried, and then I couldn’t get a response on the phone, so I called his mother.. Q: ..Okay, so you receive a phone call, or you make a phone call to his mother, after getting that phone call what if anything do you do?

A: I just kept.. I kept on walking to […] to get K, and then I got to […] I was all in a panic, I went up and got K out of class, took K out of class and she said mommy why and I coming out of class, I said just somethings happened that’s all baby. And we got to the step and that’s when I heard the ambulance going, I could hear the sirens. And then I seen the ambulance. I then I called back to D… Q: Who did you call back? A: I called back as soon as got outside. Q: Who did you call? A: I called D. Q: Okay.

A: He answered and I said, he said they took her, I said who took her, the ambulance drivers, I said what happened, he said she choked, he gave her a drink of water and she choked. I said okay and then I let him go and then me and K got by the fire hall and his mother pulled up in a cab and picked us up and she said we’ll take you over to the hospital, Glace Bay hospital. [ 113 ] Ms. MN further testified Mr. MG told her that H had fallen off the counter. She was cross-examined on this point. She confirmed it was the night of the 6 th when she went over to his parent’s home.

She identified which counter, the one by the cupboard. She also identified it in the photo, clarifying when asked that it was photo #20, and not the one before it. [ 114 ] Ms. MN estimated it was 20 – 25 minutes one way to the school from home, consistent with what Mr. MG had said. She was not seriously challenged on what she said Mr. MG told her. She did not guess except on a couple of occasions where she acknowledged doing so.

If she didn’t understand a question she asked that it be repeated. [ 115 ] In response to the questions suggesting that it was her with the child H on the afternoon on October 6th, she answered simply “that’s not true”. [ 116 ] In her evidence she supported Mr. MG in several instances. She said she didn’t feel it was him who did this because she’s seen him around the children and hadn’t seen him do anything that would harm them.

She stated the drink of water and the fall off the counter was the only explanation given to her. [ 117 ] She never saw any bruising she said between May and October of 2014, that she didn’t know how they occurred or for which she had no explanation. The extensive bruising which was seen on and after October 6th, was not present when she arrived back on the morning of the 6 th . [ 118 ] NMN also testified that she did not understand the medical report or speak to the doctors at the IWK. [ 119 ] In many ways her evidence did not contradict Mr. MG’s.

For example, she agreed that D first really bonded with H at the park. She said he did not become frustrated or angry about the relationship with her parents. She said he chose to distance himself. [ 120 ] She said she supported him in this as he just wanted to raise his kids. WMG [ 121 ] WMG, the Accused’s mother, testified for the Crown.

She and her husband visited with N and D every other day or “we’d go up” she said. [ 122 ] She described N as a good mom and spoke of giving her advice from time to time regarding the children’s medical needs or concerns. [ 123 ] She was asked what injuries the child had and said that H had two bruises, on her and no other injuries before those sustained on October 6 th . She did not recall the date but confirmed the injury to H’s mouth. She described two bruises one on her cheek and one on her forehead.

She was aware of the neck issue with the cable tie. [ 124 ] She explained the injuries to H’s arm when playing with her husband and N.

[ 125 ] WMG gave evidence as to the events of October 6 th ,2014. She confirmed that D had called her and she immediately told him to hang up and call 911. She testified she then went to his place at […] and when she got there she asked what was going on and the officer spoke with her. She asked where N was and D told her she was gone to get K. As it seemed to be taking forever she suggested she take the taxi and get N.

She testified she took N to the hospital. [ 126 ] WMG stated it was her understanding, based on the call from her son, that on October 6 th , that he had given H a glass of water and she choked, her eyes rolled back and D gave her CPR. She said D was distraught. She understood he had only given her a glass of water. [ 127 ] WMG said N was devastated at losing the children. W didn’t talk to D but every time she looked at both of them she said she cried. She advised them that they should attend every court hearing involving the children. [ 128 ] She was asked about their parenting style.

She described H’s parents as patient, a little bit loud perhaps. She confirmed they used the “time out” method of discipline. [ 129 ] I note she did not mention N having called her, as N said, when she could not reach D after calling him back, on the walk to the school. Also Constable MacKinnon did not recall any other adults visiting the house. Mrs. MG said she spoke with an officer but didn’t identify which one. [ 130 ] In cross-examination she confirmed her understanding of the injuries and what occurred. That they were from drinking water, choking and so on.

She was asked whether she had a conversation with D about someone else being responsible for H’s injuries. She answered she had no recollection of such a conversation. DMG Statements of Accused [ 131 ] The Crown relies on the written and oral statements given by Mr. MG to the police and during the 911 call and emergency response. [ 132 ] In my ruling on the voir dire , I concluded that the statements made by Mr. MG were voluntary. I made no ruling as to whether the statements were true. [ 133 ] Mr.

MG testified at trial that he was not in his right mind when he said things in his statement of March 19, 2015 due to the long and intense nature of the questioning of him following his arrest on that day. [ 134 ] In cross-examination he was asked whether the “words” in the statements were his.

He acknowledged that “no one forced him” to say or speak those words. [ 135 ] Toward the end of the statement following his arrest he said, “Something set me off but I don’t know what?”, “It must have been the frustration over the past two weeks”. [ 136 ] He was asked by Constable Oliver, “Who is the only person who could have caused these injures?” His answer was “Me”. Accused’s testimony at Trial [ 137 ] DMG testified at trial that he took his daughter to school on the morning of October 6 th . He said he had H in “time out” that morning. He asked her if she wanted a drink of water, which he gave her.

She was fine he said and he “sent her on her way”. N was still in the house, folding clothes. [ 138 ] He went downstairs to work on the lawnmower and a short time later he stated he heard “crash, bang, boom”, twice he said he heard it. The first one he paid no attention to and the second one he heard N say, “oh my fuck”. He said he “flew up the stairs”. HM was on the floor in the kitchen. N was there. H looked dead to him he said. He didn’t know her condition, his mind was racing and he started to panic. [ 139 ] He asked what happened and N told him H fell.

He then told N to leave the house to pick up K from school. He said N was hysterical. He then picked up the phone to dial 911. [ 140 ] Before he called 911, he called his mother. As a result of that conversation he immediately hung up with her and phoned 911. He waited for the paramedics. [ 141 ] He said that while waiting for the ambulance he attended to HM. He gave her CPR twice, and she vomited twice. He explained how he turned her on her right side. He had removed her clothing. At least one of the officers referred to the wet rag or sweatshirt.

EHS attendant Keith Polettie referred to a T-shirt, Photo 17, as being next to her when they arrived. [ 142 ] In terms of timing, Mr. MG said N left at 1:30 – 1:45. He said earlier she was planning to leave at 1:30 p.m. He said he was concerned about her condition and her leaving to get there on time. According to his evidence at trial it seems he went downstairs shortly before N would have had to leave for the school. [ 143 ] Mr. MG was asked by his counsel about earlier statements he made to various people. When speaking to Constable MacKinnon, the detectives, the 911 call , he made no mention of N.

He agreed he did not mention her. “No” he didn’t he said , “I was protecting N”. He was further asked:

Q: So you related that to the officials: A: I talked to them but I didn’t tell them much of anything, because I was protecting N. [ 144 ] He testified he was coming forward with this information because he wanted to “get his children back”. The evidence at trial showed the children were taken by Children’s Aid Society and the couple had been involved with protection hearings. [ 145 ] Mr. MG was asked if he took issue with the 911 call, the evidence of the paramedics and Constable MacKinnon, or anything they said. “No, they all had a job to do”, he stated. [ 146 ] Mr.

MG told Constable MacKinnon, the first officer on the scene that, “he had given his daughter a glass of water and she stopped breathing”. He said he told her to drink it slow and then her eyes got funny and he didn’t think she was breathing, at which time he administered CPR. [ 147 ] This is not what Mr. MG said in his evidence at trial. He was challenged in cross-examination. The Crown put to him that in his direct evidence he didn’t mention water or eyes or anything of that nature. The Accused said it was because he was never asked. [ 148 ] Mr.

MG said he told 911 about the glass of water, H’s eyes rolling back, and collapsing because that is what he was told by N. [ 149 ] In cross-examination the Crown pressed him on this point stating, “You don’t think that was important”. He agreed it was important but again said he wasn’t asked. He was reminded that he was asked twice by his counsel before concluding his direct evidence if there was anything he felt should be added, to which he said “No”. He stated that if he had been asked he would have gone into detail. [ 150 ] Mr. MG was asked in direct if there was any discussion with NMN, about these matters.

He answered in that in the months the kids were gone there was no discussion. She wanted to talk, but he testified he was not in the mood to talk. [ 151 ] Mr. MG testified that in recent weeks he told his mother that it was N with H and not him. [ 152 ] As to the first statement of October 6 th , I found that that statement was shorter and without any intensity whatsoever. Mr. MG was asked to tell the truth. In that statement he said it was him who was with H when the incident occurred that day.

He admitted at trial to not telling them what he now says is the truth in order to protect N. [ 153 ] When asked in cross-examination what he was protecting N from, he hesitated and after a long pause said “this”, meaning these charges. He further testified he had no idea why he was in Court. [ 154 ] Mr. MG denied that any admissions he made in the statements, particularly on March 19 th , were the truth. They were not his words he said. [ 155 ] Mr. MG stated in both the first and second statements that whoever did this should be “shot and pissed on”.

The difference is that in the second statement he stated that that person would be him. [ 156 ] In cross-examination on the second statement he stated, “I could have said you were the Queen”. This was due he said to the hostility and his being exhausted during the statement. He said it was hot during the interview and that he lacked sleep. [ 157 ] In cross-examination it was put to Mr. MG that NMN’s testimony was that she left him alone in the house. That she went to get K. It was also put to him that in his police statement he agreed that he was the only one responsible for the injuries.

He said he was not in his right state of mind and said those “seemed’ to be his words. After a further exchange, where he was asked to answer yes or no, he stated, “No one forced me to say those words, no”. [ 158 ] He was also asked if he agreed with the documented medical opinion of Dr. Larson, that the injuries occurred on October 6 th before EHS arrived and from excessive force, not a fall from a counter. He said he “assumed so” and when asked further he said, “I don’t disagree”. [ 159 ] The Crown in its submissions made further reference to further statements that it argued were admissions.

For example in cross-examination referred to Mr. MG’s statement to police that he was the only person that could be responsible for these injuries. He replied, “Again I wasn’t in the right state of mind.” Decision [ 160 ] I have considered the Accused’s evidence in the context of all the evidence at trial including the earlier statements he gave to police. [ 161 ] For almost two years Mr. MG maintained that it was him who was with the child, HM and that she choked on a glass of water and collapsed. For example he described to the 911 operator, that she was a “glutton”.

He informed Constable MacKinnon that it was he who gave her the cup of water and described to him how he told her to drink it, slowly . [ 162 ] If what he states at trial is true, the health care officials (the 911 call) and the police were misinformed by him of a situation of emergency involving a child, his step-daughter, who was critically ill and semi-conscious. [ 163 ] Mr. MG stated as his reason for not being truthful earlier was to protect NMN from having this “fall on her”, meaning the charges. He also stated however, his belief that what happened was accidental.

If he believed it was accidental, there would no need for protection. [ 164 ] He stated he wanted to be truthful so as to “get his kids back”. By all accounts the process with the Children’s Aid in the

Family Division has been concluded. Sadly and tragically neither parent has seen their children since these events occurred. [ 165 ] Mr. MG testified that when he came up the stairs N was hysterical and he sent her out. In my respectful view, the idea of sending the mother away in these circumstances makes no sense. [ 166 ] The Accused stated at trial he recently informed his mother, WMG, of what actually happened. In her evidence Mrs. MG had no recollection of it. Mr. MG attempted to explain that his mother had a lot on her plate and this was “small potatoes”.

The evidence is his mother was dealing with a lot, but this is hardly “small potatoes” in my view. [ 167 ] Further, Mr. MG informed two senior police officers on two occasions that he was alone with the child and that N had left the house to retrieve his daughter from school. [ 168 ] The Accused has therefore given evidence at trial inconsistent with previous written statements to police.

These statements have been admitted as substantive evidence at trial, meaning they were admitted for their truth. [ 169 ] The Defence argues that the written statement to police during the long interview of March 19 th , 2014 should be given no weight. They submit Mr. MG was not thinking clear and his answers cannot be relied upon. [ 170 ] In my ruling I found that the interview was long, and the questioning intensive, at times aggressive. I stated that DMG was perhaps tired but that his voice was measured. [ 171 ] I found also that Mr. MG was cognitive and speaking intelligibly.

He stated at trial that he might have been coherent but did not think he was coherent in what he was saying. I have considered this submission and nature of the interview and questioning. [ 172 ] The Accused made repeated denials in the earlier statements. He said, “he didn’t know what happened” throughout the interview(s). He “still doesn’t know”, he said. Further he was asked, “Something went horribly wrong that day, agreed?” His response was “It could have, I am not disagreeing”. [ 173 ] He said on page 90 of the second statement that his mind was blank.

He was asked “But you admit you caused these injuries, right”? He answered, “Nobody else could have”. [ 174 ] I may accept all, part or none of a witness’s evidence including evidence given in a statement admitted for its truth. [ 175 ] The evidence the Accused gave to the police officers on the night of the October 6 th incident confirms he was alone and is consistent with what he told 911, Constable MacKinnon, and the police officers in his March 19 th statement. He made no mention of NMN. This is the same thing he told N and his mother, according to their evidence. [ 176 ] I am satisfied that Mr.

MG was sufficiently aware and realized what the police were asking of him in the written statements admitted as Exhibit 15. I repeat that his answers were intelligible despite the long questioning. In my view the answers he gave demonstrated he had an operating mind. [ 177 ] In so far as the statements denying his involvement and that he did not know what happened, I reject the evidence of the Accused. I recognize he is entitled to the benefit of the doubt if his evidence denying his involvement or lack of knowledge are believed. I do not believe Mr.

MG’s evidence in his statement that he did not know what happened. Further I do not believe his evidence at trial as to what he says happened, that he was downstairs and heard crash, bang, boom. [ 178 ] I have difficulty accepting what amounts to a revelation at trial by the Accused that it was NMN and not him that was alone with the child. I do not believe DMG’s evidence at trial that the injuries were sustained in his absence and while the child was in the presence of NMN.

Nor does his evidence leave me with a reasonable doubt. [ 179 ] I accept the Accused’s evidence in his statements to police that it was him who was alone with the child. This is consistent with what he told other witnesses. [ 180 ] The Accused’s evidence at trial I find however is simply not credible. For example he said at trial he didn’t notice the bruises as he was attempting to revive the child.

Yet, he told Constable MacKinnon that the child would have bruises on her. [ 181 ] On the basis of the test in WD I may still only convict DMG if on the evidence that I do accept I am satisfied of his guilt beyond a reasonable doubt. [ 182 ] Dr. Larson concluded in her report under the heading “Formulation” that multiple and severe injuries were received by HM. Further, her report stated that no event in the history; no event prior to the incident on October 6 th and no other medical evidence could have contributed to these injuries. [ 183 ] In her opinion Dr.

Larson stated these were “high impact injuries” meaning they were inflicted by a high energy event, one that she described as the use of significant force. While the exact mechanism of the force cannot be determined, Dr. Larson described the type of force it would take to cause these injuries [as stated earlier] as an acceleration/deceleration (shaking) motion followed by or in combination with a blow or blows. [ 184 ] The standard in a criminal proceeding is proof beyond a reasonable doubt. The Accused Mr. MG is presumed innocent of the charges.

The standard in a civil proceeding is on the balance of probabilities, a lesser standard. It is not enough for the Crown to prove the Accused probably committed these offences. It is the criminal burden which the Crown must discharge. [ 185 ] Dr. Larson’s report and her opinion must therefore be looked at in the proper context. If there was doubt by her, about the cause for any of the injuries H sustained, Dr. Larson resolved those injuries by concluding they were either accidental, or of an unknown

cause. [ 186 ] She was questioned as to the methodology she used in arriving at her opinions. She explained her conclusions are arrived at from a combination of sources, not just studies but also clinical examinations, and discussions with professional colleagues. She acknowledged that in the area of child abuse the science is not perfect but that she is careful in what information she relies upon. The margin of error can vary and is often quite low. For example she referred to a study on injuries resulting from falls in children.

There were 2,500 infants and over 3,000 falls studied and of them 18 people were injured. None were as severe as in the present case. Dr. Larson concluded this by saying, “we just don't see this”, referring to the degree of injuries in the case now before the Court. [ 187 ] She was questioned on her report which is in depth. In the

summary, she states there is really no other plausible explanation than that the most serious of these injuries were inflicted by the use of force. [ 188 ] Her finding is that these injuries would have occurred on October 6 th . The evidence points to that being the date, and the time being just prior to the 911 call. [ 189 ] The first paragraph of Dr. Larson’s

summary at page 39, states: HM came to medical attention on 6 October, 2014, when she was critically ill with reduced level of consciousness and shallow breathing. The only known reported recent injury events prior to this presentation for H were that she had fallen striking her mouth against the corner of a microwave cabinet on 5 October, and he had choked on a glass of water on 6 October. Also, she was reported in general to be a clumsy child, prone to frequent falls. [ 190 ] Her opinion at page 40 of her

summary is as follows : Overall, the most plausible explanation for the totality of the various injuries that H has sustained is that she has experienced inflicted injuries that have included multiple applications of force to various locations on her body, including her head, and including some applications of very significant forces. [ 191 ] There is ample evidence to indicate that none of these injuries existed prior to October 6 th . NMN testified that when she left the house H was fine.

The triage nurse, WMG, and the parties themselves acknowledged that H was fine. [ 192 ] DMG was asked in cross-examination whether he agreed with the medical report of Dr. Larson and her findings. He stated he did not disagree. He was asked if he agreed the injuries would have been caused by the use of force. He again stated that he did not disagree. [ 193 ] I accept the evidence of Dr. Larson and find that the injuries to HM were sustained from the intentional application of a significant force on the date and time in question. [ 194 ] The main question remains as to who inflicted these injuries.

Has the Crown met its burden of proving that it was the Accused? It is not up to DMG to prove he did not inflict these injuries. He has no burden. [ 195 ] On the evidence that I do accept I am satisfied beyond a reasonable doubt that it was Mr. MG and not NMN who was home with HM when the injuries were inflicted upon HM. [ 196 ] NMN took the child, KMG, to school and the child asked her to return to pick her up. She stated she was asked and wished to comply.

She indicated she was willing and capable of doing so in spite of her recent C-section operation. [ 197 ] She stated she was told by DMG that the child fell off the counter later in the evening on October 5 th . What happened that day is that she left Mr. MG with H. She stood by this in cross-examination and her testimony was largely unchallenged. [ 198 ] Although closely tied to the situation she did not blame DMG for what happened and only conveyed what he told her that evening without adding, embellishing or colouring in any way, her testimony.

She simply gave her evidence as to what happened to the best of her ability. In my respectful view she faired quite well. She was credible. [ 199 ] The Crown submits that NMN’s evidence was for the most

part is testimony was uncontradicted. That she was forthright, honest and answered questions appropriately. [ 200 ] She said she phoned D’s mother after D had phoned her. I note WMG did not confirm this, but it appears she was not asked. [ 201 ] NMN did have some difficulties with reading, some cognitive delays so to speak and she had been in an IPP program. When she didn’t understand she asked that the questions be explained and answered to them to the best of her ability. [ 202 ] There is are some differences in how the marks where described by her as compared to those described by the triage nurses.

They described small bruises on the cheek and forehead. In reviewing the photo’s NMN gave more detail, for example she explained the cheek had “come out”, meaning it had swelled. She also described marks on H’s back. [ 203 ] She was cross-examined on the events of October 5 th and 6 th in some detail. There were no inconsistencies. She was in fact, cross-examined on a range of issues, including H’s head banging, her parents in […] and injuries there, the Aunts visit, and D’s anger management issues. She was asked about the child protection issue, hospital care and relationships.

She was asked about what D told her had happened. She clarified concisely what he told her in the afternoon and in the evening of October 6 th . It was put to her that she was responsible for H’s injuries. She handled these questions and was clear in stating what she believed was true and what was not true. It was not true she said of the suggestion that it was her that was with H when the injuries occurred.

[204] For these reasons I concur with the Crown’s assessment of NMN’s evidence. I find her evidence to be reliable. [205] In a criminal case the Crown must satisfy the trier of fact beyond a reasonable doubt of the Accused’s guilt. [206] For all of the foregoing reasons, I am further satisfied that the following facts have been proven beyond a reasonable doubt: 1. That these injuries suffered by HM were inflicted injuries; 2. That the Accused DMG, was the only person present with the opportunity to inflict these injuries upon her; 3. That it was DMG who inflicted the traumatic injuries on the child, HM; and 4.

That the admissions in the statement of March 19th, serve to confirm that DMG was the person who inflicted these injuriesupon HM. Indictment –Intent, Bodily Harm, Wounding s. 268(1) [207] Having found that it was the Accused who inflicted the injuries, I turn to the indictment which states that the assault under s.268 was committed by wounding. [208] In R v. Rahman, affirmed on appeal, Justice Cacchione stated: 15.

Aggravated assault is committed when an accused wounds, maims, disfigures or endangers the life of the complainant. [209] The learned justice quoted s. 265(1) of the Criminal Code of Canada referring to the act (actus reus) for assault, being theintentional application of force without consent. He then went on to discuss the mental element (mens rea) at paragraph 18, he said: 18. The mens rea for aggravated assault is an objective foresight of bodily harm. It is not necessary that there be an intent to wound,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.) [210] In Rahman the indictment, as drafted, did not particularize a specific action. The court found that acts of wounding, maimingor disfiguring were not applicable. [211] In the case before me the Crown has particularized a specific action, wounding as an element of the offence. Based on theforegoing, the Crown need not establish a specific intent to wound, only an objective foresight of bodily harm.

The assault however,must have the consequences of wounding. [212] The Crown provided a definition of “wound” as contained in Black’s Law Dictionary as follows: “ wound v. is to inflict alaceration, cut, fracture or bruise.” [213] According to that definition, it is an injury by which “the continuity of the covering, as skin, mucus membrane or conjunctiva isbroken”. The definition also refers to the “breaking of the tissue, breaking up or dispersion or disintegration of the natural continuity ofthe tissue of the body”.

Finally it refers to,“ injuries of every kind which affect the body, whether they are cuts laceration, fractures orbruises”. [214] The injuries here involve a subdural hemorrhage, retinal hemorrhage, vertebrae fractures brain injury, liver damage (laceration)and extensive bruising. The most severe damage or wound as it appears from the medical evidence is the brain damage which occurredespecially to the right side. As explained in Dr. Larson’s report this involves damage to the substance of the brain, with one injury beingthe primary injury and another being a secondary injury. [215] Dr.

Larson referred to the terms “hypoxic/ischemic” to discuss swelling that occurs when the cells are injured. She stated thattrauma to the brain led to among other things, a subdural hemorrhage. The damage was primarily on the right side and the last MRIshowed a loss of volume. [216] In the case of R. v.

Hartling the Court had no medical evidence but concluded that “wounding must contemplate and describean injury which is more serious than merely bodily harm”. [217] I cannot conceive of a more serious injury to an 18 month old infant than a brain injury, which based on the medical report,involved complications and damage to the brain tissue. [218] Having been satisfied the act was committed, a crime requires both the act and the intention, or mental element. [219] Aggravated assault is an offence of general intent meaning that the Crown need not prove the specific intent to wound, as stated.

The Crown need only prove the general intent to cause bodily harm. Since the indictment was particularized, wounding as aconsequence must be established by the Crown. [220] Aggravated assault is made out when the consequences of the general intent to cause bodily harm is proven. The standard is anobjective one. Would a reasonable person in these circumstances foresee bodily harm resulting from their actions. Would a reasonableperson realize that the force intentionally applied put the complainant at risk of suffering some kind of bodily harm. [221] I have already discussed what constitutes bodily harm.

It is something more than just brief or fleeting, or minor in nature. [222] In my view, any reasonable person who intentionally applies force, which Dr. Larson stated would have been significant, to aperson of such tender age, would realize the force applied would place this infant at risk of suffering some kind of bodily harm.

[ 223 ] In other words, the harm was objectively foreseeable, in the case of HM. I am therefore satisfied that DMG, whom I found applied such force, had the necessary intent to commit the offence of aggravated assault. [ 224 ] In my view, these injuries are extremely serious. They constitute a laceration, bruising, breaking of one or more of the skin, membranes, tissues, blood vessels, cells, and bone fractures such as to constitute wounding. I find the force intentionally applied by Mr. MG had the consequence of wounding. [ 225 ] I therefore find DMG guilty of the offence of aggravated assault. S.267(

b) Assault Causing Bodily Harm [ 226 ] With respect to the charge of assault causing bodily harm, I have considered the evidence at trial. There was considerable evidence as to H’s arm, the cast, the sling, the cable tie, the neck abrasion. In addition there was the evidence in relation to the crib, the mattress, the head banging. This includes the evidence of both grandparents, D’s father & N. There were the incidents with the arm and D finding H in the crib. There was the evidence as to the oral injuries, and one that occurred at the MN residence in […]. [ 227 ] Dr.

Larson in her evidence at trial and in her report was less certain as to the cause of arm injuries than the more serious ones that I have addressed. She concluded there were two arms fractures, a significant one to her distal humerus (upper arm) and one to her ulna (the bone in her forearm). [ 228 ] In her overall conclusion, she stated that on the balance of probabilities these fractures were more likely inflicted than accidental, because of growth or “elevation” around the ulna without an obvious fracture. Dr.

Larson gave the example that if she were grabbed and a twisting force was applied, she would display this type of injury. She was asked if the arm being caught in the rails of a crib could cause this type of injury. She would be very surprised that would happen without a reported event. She stated it would be helpful to know the dimension of the crib. The evidence was not available. [ 229 ] The evidence at trial clearly indicated various problems experienced with H’s arm. Dr. Larson could not rule out a fall on an outstretched arm and there were a couple of falls on the stairs.

There is some doubt in my view as to the cause of the arm injuries. The balance of probabilities is the civil standard of proof. While the evidence may be very suspicious for inflicted injury, a criminal proceeding requires proof beyond a reasonable doubt. On the evidence I have a reasonable doubt. [ 230 ] I have a similar doubt with respect to the oral injuries. While Dr. Larson said the oral injuries were a significant concern for inflicted trauma she stated that two accidental events at separate times could not be conclusively ruled out based on the medical evidence. I am therefore finding Mr.

MG not guilty of the charge of assault causing bodily harm pursuant to s. 267(b). He is acquitted of that offence. Murray, J.