) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 6426

CITATION : R. v. P.R., 2010 ONSC 6426 COURT FILE NO.: 213/09 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – P.R. ) ) ) ) ) ) ) ) B. O’Marra M. Miller ) ) HEARD: September 27 - October 15, 2010 MILLER J. [ 1 ] P.R. is charged that between November 11, 2008 and November 14, 2008 he endangered the life of L.J. thereby committing Aggravated Assault. L.J. was at the time a four month old baby.

It is alleged that P.R. caused subdural bleeding in L.J.’s skull by violently shaking her. [ 2 ] L.J. was admitted to McMaster Hospital November 14, 2008 with symptoms of increased intracranial pressure. Further examination revealed that L.J. was suffering from bilateral subdural haemorrhages of differing ages and had retinal haemorrhages. She had a small bruise on her forehead. Police and Children’s Aid began a joint investigation. [ 3 ] On November 21, 2008 P.R. confessed to police that he had shaken L.J. sometime after November 8, 2008 and before her admission to hospital November 14, 2008.

P.R. testified on this trial that his confession to police was false. He denied ever shaking L.J. or causing her harm in any way. [ 4 ] There is no issue in this trial that the injuries suffered by L.J. for which she was admitted to hospital November 14, 2008 were life-threatening. Further, although alternate causes of L.J.’s condition were explored during the trial, Mr. P.R. now accepts that L.J. was the subject of abusive head trauma on more than one occasion.

He does not argue that the older injury would exempt the person responsible for the most recent injury from the consequences of endangering her life. [ 5 ] The issue to be determined here is whether P.R., between November 8 and 14, 2008, caused the injury or any part of it by assaulting L.J. in circumstances in which it was objectively foreseeable that he would cause her bodily harm. For the reasons that follow, I find that he did. Facts [ 6 ] L.J. was born […], 2008 at Joseph Brant Hospital in Burlington, Ontario. Dr.

Anthony Ford-Jones, a pediatrician, was present for her birth as she was born at just over 31 weeks gestation – premature. L.J. was transferred to McMaster Hospital where she remained until July 8, 2008. She then went to Oakville-Trafalgar Hospital where she remained until discharged August 8, 2008. [ 7 ] Following her discharge from hospital, L.J. was brought home to […] Steet in Burlington, Ontario. Her parents, C.A. and S.J.1, shared the townhouse with Mr. S.J.1’s sister S.J.3, her spouse P.R. and their son A.R., born […], 2007. [ 8 ] L.J. was taken for regular appointments with Dr. Ford-Jones by her parents.

Dr. Ford-Jones carefully monitored L.J.’s growth rate and development. Apart from some concern that L.J. was over-feeding, leading her to frequently regurgitate, Dr. Ford-Jones was content with L.J.’s progress. He was reassured by his physical findings as well as his observation that L.J. was looking well and contented. Dr. Ford-Jones last saw L.J. November 11, 2008. At that time he noticed nothing of concern in her presentation. [ 9 ] November 14, 2008 L.J.’s parents took her to a previously scheduled appointment at McMaster hospital. The appointment was for L.J. to receive an inoculation.

While there, L.J.’s parents spoke to the attending nurse about the fact that L.J. had recently been sleeping excessively, not eating and when eating, projectile vomiting. At the suggestion of the nurse, C.A. and S.J.1 took L.J. to the Emergency department. [ 10 ] Upon being examined at the Emergency department L.J. was found to have a raised fontanelle. Together with the symptoms described by her parents, this is a sign of increased intracranial pressure. L.J. was admitted and subject to further medical examinations.

A CTscan and subsequently an MRI showed that L.J. had bilateral subdural bleeding – an obvious cause of the increased intracranial pressure. Photographs taken of L.J.’s retinas revealed retinal haemorrhages in both eyes. A small bruise was noted on L.J.’s forehead.

L.J. weighed 5.1kg on admission. [11] L.J. was admitted to the pediatric intensive care unit where she was watched carefully. November 21, 2008 it was determinedthat a subdural tap was necessary to relieve L.J.’s intracranial pressure. Subsequently, on December 3, 2008 burr holes were drilled intoL.J.’s skull to further relieve the intracranial pressure that was not subsiding. These steps were taken to preserve L.J.’s life. The Essential Elements of Aggravated Assault [12] In R. v. Cuerrier (SCC), [1998] S.C.J. No. 64 the Supreme Court held at paragraph 10:

Section 265 of the Criminal Code describes the general elements that underlie all of the assault offences, including assault, assaultcausing bodily harm, aggravated assault, sexual assault and aggravated sexual assault. The essence of all forms of assault, as laid out in s.265, is the intentional, non-consensual application of force, or the threat thereof.

"Force" can include any touching, no matter the degreeof strength or power applied, and therefore is not only those physical acts designed to maim or cause injury. [13] The Court went on at paragraph 95 to explain that in circumstances where aggravated assault – endangering life is alleged: This charge requires the Crown to prove first that the accused's acts "endanger[ed] the life of the complainant" (s. 268(1)) and, second,that the accused intentionally applied force without the consent of the complainant (s. 265(1)(a))...There is no prerequisite that any harmmust actually have resulted.

This first requirement of s. 268(1) is satisfied by the significant risk to the lives of the complainant[s]. [14] In R. v. Williams 2003 SCC 41 at paragraph 22 the Court made it clear that even in cases of aggravated assault whereendangerment of life is alleged: The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind tothe fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v.

Godin, (SCC), [1994]2 S.C.R. 484, at p. 485, and Cuerrier, supra, at para. 95. [15] In that case the Court also made it clear, at paragraphs 44 and 45, that a pre-existing condition will not exempt someone fromresponsibility where all the essential elements of the offence have been proven: Section 268(1) is only one of a number of Criminal Code provisions that "call for a more serious charge if certain consequences follow":R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, at p. 966.

These include criminal negligence causing bodily harm (s. 221),criminal negligence causing death (s. 220), dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s.249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), assault causing bodily harm (s.267(b)), aggravated assault (s. 268), sexual assault causing bodily harm (s. 272(1)(c)), aggravated sexual assault (s. 273(1)), mischiefcausing danger to life (s. 430(2)) and arson causing bodily harm (s. 433(b)). The "aggravation" in aggravated assault thus comes from the consequences.

In DeSousa itself, the Court held, at pp. 966-67, per SopinkaJ.: No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious thancrimes which lack those consequences. ... The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it isacceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused... .[Emphasis added.] L.J.’s Injury The Experts [16] Dr.

Patricia Harvey was qualified to give opinion evidence in ophthalmology and in particular, the

interpretation andassessment of retinal haemorrhages of infants in cases of suspected non-accidental injury. [17] Dr. Harvey was asked June 10, 2009 to assess photographs taken November 7, 2008 of L.J.’s left and right retinas. She was

also asked to assess the patient. She has continued to follow L.J. and last assessed her before trial on June 9, 2010. [ 18 ] Dr. Sheila Singh was qualified to give opinion evidence in the areas of pediatric neurosurgery and, in particular, with respect to

interpretation of injuries observed in L.J. and the conclusions with respect to causation to be drawn from those injuries. [ 19 ] Dr. Singh was asked by Dr. Lloyd to give an opinion with respect to L.J. when a CTscan taken November 14, 2008 showed bilateral subdural hematomas. Dr. Singh decided initially to treat the case conservatively , keeping L.J. under very close observation in the intensive care unit and monitoring her for any type of deterioration. [ 20 ] On November 21, 2008 when it was clear that L.J.’s intracranial pressure was increasing, Dr. Singh performed a subdural tap.

When L.J.’s condition did not improve due to re-accumulation of fluid, bilateral burr holes were drilled into L.J.’s skull on December 3, 2008 to relieve the pressure. Her condition then stabilized. [ 21 ] Dr. Robert Lloyd was qualified to give opinion evidence with respect to pediatric critical care. Dr. Lloyd was consulted on November 14, 2008 when L.J. was admitted to the Emergency Department. He examined L.J. around 9 p.m. that evening and found her at that time to be alert, making eye contact, vital signs normal and her limbs moving normally.

Her pupils were reactive. [ 22 ] He observed that she had a bulging fontanelle which was slightly pulsatile, her cry was weak and in a fundascopic exam he could clearly see flame shaped retinal haemorrhages in her left eye. He observed a bruise on her forehead and two faint red marks on her back. No other signs of external injury. [ 23 ] Dr. Harriet MacMillan was qualified to give opinion evidence in the area of pediatrics and non-accidental injuries to children. Dr. MacMillan is part of the team at McMaster hospital that provides consultation in cases of suspected maltreatment of children.

She was consulted on November 14, 2008 by Dr. Lloyd about L.J.. Symptoms [ 24 ] P.R. told police that the day L.J. was taken to hospital (November 14) he and C.A. had noticed that she was pale. He also described L.J. as sad. She was not cheered up, as she was usually, by A.R.. Mr. P.R. said she had been vomiting but that she had always spit up her formula. He said that at this time her vomit was clearer, like saliva. In his testimony Mr. P.R. said that L.J. began spitting up a lot when her formula was changed. He testified that he “never saw it” so he did not know if it was projectile vomiting.

He testified that he could see the top of her head and did not notice anything about her soft spot. [ 25 ] C.A. testified that L.J. had spit up from birth and continued to do so through November 11, 2008 when they visited Dr. Ford- Jones. L.J. woke about every two to three hours to feed. She testified that the day following November 11, L.J. slept about 16 hours and then projectile vomited – that was abnormal. C.A. agreed that she had changed L.J.’s formula when a free sample came in the mail and that L.J.’s projectile vomiting started around the same time.

She was not sure, but thought it was the Tuesday or Wednesday before November 14, 2008. [ 26 ] S.J.1 testified that L.J. had spit up regularly from the day she was born and she usually woke every three hours to be fed. He testified that for about a month prior to November 14 L.J. was sleeping longer periods of time – up to five hours before she woke up wanting food. He noticed nothing unusual about L.J. November 11, 2008 when they visited Dr. Ford-Jones. Her weight, height and growth were all fine. He did recall that L.J. slept through the night that night and that was unusual. He believed she slept 13 hours.

He recalled that the following day she threw up large amounts – that was abnormal. [ 27 ] S.J.2 testified that L.J. and A.R. had spent the night of November 8, 2008 at his home in the care of himself and his spouse H.R.. He testified that everything seemed normal. L.J. spit up but she had since she was born. There was nothing drastic like the day or two before she went into hospital. L.J. seemed very happy but she did sleep longer than they had expected.

S.J.2 testified that he never saw anyone hit or shake L.J. or be physically violent with her in any way. [ 28 ] H.R. testified that L.J. and A.R. had stayed over at their place the night of November 8, 2008. She had no concerns about L.J.; she ate her formula as normal. She did not seem ill. H.R. recalled that L.J. went down at 10 or 11pm and woke around 7 am. She ate her breakfast without any problem. She remarked that L.J. had slept through the night. [ 29 ] H.R. believed that the Wednesday following S.J.1 called her to say that L.J. didn’t seem well.

She had started vomiting and did not seem herself although she had no fever. H.R. recalled something about a bruise or a scratch on L.J.’s forehead. She testified that had she seen a bruise she would have asked S.J.1 or C.A. about it. H.R. testified that she never saw anyone be rough with L.J.; she would not have stood for it. [ 30 ] S.J.3 testified that the week before November 14, 2008 L.J. had been throwing up more than usual. Her best recollection was that it had begun on the evening of Wednesday, November 12. She was not aware of whether L.J.’s sleep pattern had changed.

S.J.3 did not notice any injury to L.J.. Injury [ 31 ] Dr. Singh testified about the presence of three different ages of subdural bleeding apparent on the CTscan of L.J.’s head, discernable by their different colours. Dr. Singh testified that the acute blood would be 0-3 days old, the sub-acute blood can be anywhere between 3 days and 3 weeks old, but is usually no older than 7 days and chronic bleeding can be up to three months old. I note that as of November 14, 2008 L.J. had been out of hospital just over three months. [ 32 ] Dr.

Singh testified that the acute bleed was “tiny”, composing 1% or less of the total fluid accumulation. She explained that the observations of Dr. Ford-Jones likely meant that L.J. had accommodated the earlier bleeds but the last one “tipped” the intracranial

pressure to a point it could not be accommodated and it was then L.J. became symptomatic. [ 33 ] Dr. Singh testified that developmental delays can occur due to intracranial pressure preventing the brain from developing properly. [ 34 ] Dr. Harvey was consulted about L.J.’s case in June 2009. She examined the retcam images taken of L.J. November 17, 2008. She found that the blood vessels in both eyes running from the optic nerve were a little more tortuous or wriggly than they should be. In the both eyes Dr. Harvey observed many retinal haemorrhages. [ 35 ] When she examined L.J. June 10, 2009 Dr.

Harvey found that L.J. could grossly fix and focus on large objects, her optic nerve on both eyes was pale and the macular mound of her retina was reduced and flattened. The lack of macular structure indicates that the nerve fibers in there are damaged or have atrophied. These abnormal findings indicate that that L.J. would have reduced visual acuity. Endangering Life [ 36 ] Dr. Lloyd testified that he believed L.J. could have died from her injury. [ 37 ] Dr. Singh testified that increased intracranial pressure always endangers health.

If L.J.’s intracranial pressure had continued to build without medical intervention L.J. could have died. Dr. Singh testified that while she initially decided to manage L.J. conservatively, without surgical intervention due to the inherent dangers, she ultimately determined that first a subdural tap and then the drilling of burr holes into L.J.’s skull was necessary. [ 38 ] Dr. MacMillan testified that shaking a baby can be potentially life threatening. [ 39 ] I am satisfied beyond a reasonable doubt that the injury L.J. presented with on November 14, 2008 endangered her life.

Mechanism of the Injury [ 40 ] Both S.J.1 and C.A., when first interviewed November 14 and 15, asked whether S.J.1 bouncing L.J. could have caused her injury. C.A. also mentioned bumping L.J.’s head on the bar of her car seat or on the Styrofoam of her crib. Dr. MacMillan told them these things could not have caused L.J.’s injury. [ 41 ] Both Dr.s Lloyd and MacMillan noted a bruise on L.J.’s forehead on November 14. C.A. denied any knowledge of the bruise whereas S.J.1 indicated he had noticed it the day before while bathing L.J..

No photographs were taken of the bruise because it was thought that it was so faint that it would not show up in a photograph. Dr. MacMillan testified that in her opinion the bruise she observed could not have been caused either by L.J. bumping her head on a car seat or crib. She testified that an infant of L.J.’s age should not have a bruise like that. [ 42 ] Dr. Lloyd testified that there was a bluish bruise .5cm in size, a 3cm red mark over L.J.’s forehead and a 3mm scratch over her forehead. Dr.

Lloyd opined that the redness would have been relatively acute – within hours of his observation, the scratch within two days but he could not date the bruise. [ 43 ] I do note that the lighting at the […] Street residence was quite dim. That may provide an explanation for C.A.’s failure to notice the bruise. As the person who spent the most time with L.J. however, one would expect that C.A. would have noticed the bruise or be aware of how L.J. could have gotten it. [ 44 ] Dr.

MacMillan testified that the bruise, in her opinion was not associated with L.J.’s head injuries and that none of the mechanisms suggested by L.J.’s parents were of sufficient force to have caused those injuries. [ 45 ] Dr. Harvey testified that the number of retinal haemorrhages in both of L.J.’s eyes, the fact that there are pre-retinal and intra- retinal haemorrhages, together with the lack of macular structure indicates retinoschisis which is very typical of shaken baby syndrome. Dr. Harvey testified that there are ten layers of retina.

In shaking or shearing events the layers slide on themselves, shearing the vessel and causing the connections to be rent or torn. [ 46 ] In Dr. Harvey’s opinion it is very significant that there were so many haemorrhages in both eyes. She testified that in accidental injury, these are insignificant or non-existent. She differentiated between the findings that she would expect to see if L.J. had been suffering from another condition, for example, Terson’s syndrome or had suffered an injury similar to being struck in the eye with a squash ball. She testified that other rarities were weeded out by blood tests.

Her diagnosis is that L.J. was shaken. Dr. Harvey’s opinion was given without reference to and independent of evidence of subdural bleeding. [ 47 ] When Dr. Harvey was asked about the American Pediatric Society’s terminology of “abusive head trauma”, Dr, Harvey explained that the term was, in her view, over-broad, and did not recognize the specific findings typical of shaken baby syndrome. The term, in Dr. Harvey’s view, loses “ophthalmic specificity”. Dr. Harvey was also familiar with the Goudge Report and the cautious approach recommended in cases of suspected baby shaking. [ 48 ] Dr.

Singh testified that the subdural haematomas visible in the CTscan of L.J.’s head were indicative of bleeding in that area. She explained that the bleeding was from a rupture of the bridging veins running between the dura and the brain.

She testified that “the force that is required to rupture these veins is a shearing force and so a shearing force would imply that some acceleration or deceleration force is applied to the head such that the brain may travel in one direction in a differential direction from the skull and then this would cause these veins to rupture and bleed into the subdural space, the space beneath the dura.” [ 49 ] Dr. Singh testified that this injury can occur with or without impact but requires an application of acceleration/deceleration force.

The velocity required to cause this type of bleeding is that which has been seen in a high-speed motor vehicle accident or in a serious fall down the stairs. Dr. Singh testified that while there is very occasionally bruising on the chest or fractured ribs, in the majority

of cases where shaking is the mechanism of injury there is an absence of any external injury. [ 50 ] A small infant is vulnerable to this type of injury without impact because of having a relatively large head and weak neck musculature. Dr. Singh explained that shaking an infant makes the head accelerate and decelerate and the most common mechanism for this injury in small babies is shaking. Prematurity generally means that the anatomical features which predispose an infant to injury from shaking – relatively large head and weak neck musculature – are more pronounced. [ 51 ] Dr.

Singh testified that subdural bleeds of multiple ages suggests non-accidental, potentially abusive head trauma from repeated bleeding episodes. She testified that a four month old baby is incapable of self-inflicting such injury. Dr. Singh testified that chronic intracranial pressure can cause optic nerves to atrophy over 2-3 months. [ 52 ] Dr. Singh agreed that once there is a rupture of the veins, those veins become more “friable” or vulnerable to injury but that even though the threshold is lower, the force required to cause bleeding is significant. In Dr.

Singh’s opinion, playing with, or simple mishandling of the baby would not be enough force to induce a subdural haematoma. [ 53 ] On January 30, 2009 S.J.1 and C.A. provided a list of possible explanations for L.J.’s injury to the CAS worker Melanie White who in turn passed it on to police. C.A. testified that she had written the list during the meeting between P.R., S.J.3, S.J.1 and herself in the week following L.J.’s admission. [ 54 ] Dr.

MacMillan testified that while there is an ongoing debate in the medical community as to whether an impact is required, it is her opinion that the acceleration/deceleration resulting from shaking a baby who has a big head relative to the rest of his body and week neck muscles can cause the shearing of vessels as seen in L.J.’s case. [ 55 ] Dr. MacMillan testified that she is familiar with the recommendations of the Goudge report in respect of the use of the term “shaken baby syndrome”. In Dr. MacMillan’s opinion the term can still be used especially in literature directed at prevention.

It is a sub- type of “abusive head trauma” used in the medical-legal context. [ 56 ] Dr. MacMillan testified that shaken baby syndrome is a constellation of symptoms associated with shaking with or without impact. It is an inflicted act. The triage of symptoms are subdural haematoma, cerebral edema and retinal haemorrhages. These are not pathognomonic of shaken baby syndrome. Shaken baby as a diagnosis can exist without these symptoms but it would be rare without at least one of them. [ 57 ] In her investigation, Dr. MacMillan was looking for anything that would account for L.J.’s symptoms.

None of the explanations offered by L.J.’s parents could, in Dr. MacMillan’s opinion, account for L.J.’s symptoms. She testified that nothing on C.A.’s list, other than “swinging her head around” would lead to the signs and symptoms L.J. presented with. [ 58 ] Dr. MacMillan gave the opinion that L.J. was most likely shaken, given her symptoms with no history of abuse, no indication of infection or blood disease. Her approach is to share information and keep an open mind. A differential diagnosis was ruled out so the only plausible explanation was abusive head trauma. No fractures were present and Dr.

MacMillan ruled out a change in L.J.’s formula as causing any injury. [ 59 ] Dr. MacMillan was presented with a hypothetical scenario of a frustrated adult who admitted shaking a baby but was imprecise about the degree of force used but said the baby was quiet after the shaking. Dr. MacMillan testified that the baby going quiet after shaking raises a major concern both because of the potential that there has been a change in the consciousness or brain function of the baby and because there is greater risk of repeat events when the shaking has the desired result of stopping the baby from crying. [ 60 ] Dr.

MacMillan testified that she could not comment on the level of force or duration of shaking required to create a risk to the health of the baby except that the force would have to be beyond what any reasonable person would consider appropriate or acceptable. Dr. MacMillan testified that in the literature, what has been associated with retinoschisis is shaken baby syndrome, a crush injury to the head and one report of a two year old falling 11 feet onto a concrete surface. [ 61 ] Dr.

MacMillan was clear that the hypothetical scenarios put to her of a dropping of the baby onto a couch and yanking of the baby’s feet while changing her would not result in the injuries seen here. While holding the baby without supporting her head is a behavioural risk factor, that scenario would not result in the acceleration/deceleration required to cause this injury. Alternative Explanations for the Injury [ 62 ] When L.J. was born, Dr. Ford-Jones noted that she had a rapid heart rate and experienced a blanching of her right arm although that quickly returned to normal.

L.J. was transferred to McMaster Hospital where her progress was “routine for her size and gestation”. An ultrasound done at birth showed a bilateral flare in her brain. A follow-up ultrasound showed that it had cleared. [ 63 ] In his follow-up of L.J. Dr. Ford-Jones noted an umbilical hernia which he described as common with pre-mature infants and “of no consequence”. He also observed a “little” heart murmur which he viewed as “not significant”. He had no concerns at the time although he would follow that.

He also noted that L.J. had “torticollis” – a twisted neck- which he described as usually a result of the position in which an infant is sleeping and can be improved by changing that position. [ 64 ] In cross-examination defence counsel explored the possibility that L.J. suffered from retinopathy of prematurity but an eye examination done August 3, 2008, a week before L.J. was discharged from Oakville Trafalgar hospital, showed evidence of almost a completely normal eye examination such that the examining doctor opined that L.J. was likely closer to 41 weeks gestation at that time.

Of note was the observation that there was no evidence of posterior pole vessel tortuosity. Tortuosity was present in the retcam photos taken of L.J. on November 17, 2008. [ 65 ] Dr. Harvey testified that there can be retinopathy of prematurity in premature, underweight infants, but that does not occur in the posterior pole as were the injuries here. She testified that ROP is active between 32 and 44 weeks gestation; after that, the retina has

matured and the infant is no more susceptible to injury of the retina than any other full term infant. [ 66 ] There was a report referred to in the evidence indicating that L.J. is presently showing signs of diplegic cerebral palsy. Dr. Harvey testified that cerebral palsy in and of itself does not affect visual acuity, but she would not be surprised if L.J. was showing signs of mild diplegic cerebral palsy given what she’s gone through. She conceded that although she sees many patients with cerebral palsy, cerebral palsy is not her area of specialty. [ 67 ] Dr.

MacMillan was asked about L.J. showing signs now of diplegic cerebral palsy. She testified that it can be a result of injury during birth, it is also associated with shaken baby syndrome. She also testified the course of L.J.’s development is not typical of a birth injury. [ 68 ] I am satisfied beyond a reasonable doubt, given the evidence ruling out any alternative explanation for L.J.’s injury, that she was shaken, and on more than one occasion. Timing of the Injury [ 69 ] There is no evidence, nor any suggestion that L.J. was subject to any mistreatment or accidental trauma while she was in hospital.

The period of time L.J. could have been subject to accidental or non-accidental trauma runs between her discharge from Oakville Trafalgar Memorial Hospital August 8, 2008 and her admission to McMaster Hospital November 14, 2008. [ 70 ] During this period L.J. resided at […] Steet in Burlington with her parents, C.A. and S.J.1; with S.J.3 and P.R. and their son, A.R., born […], 2007 and with a dog, a cat and a hamster. Various people visited the […] Street residence while L.J. was there, including friends and relatives of all of the occupants.

L.J., when not being cared for by one or both of her parents, was generally left in the care of S.J.3 and/or P.R.. L.J. was also, on occasion, cared for by S.J.2 and H.R.. [ 71 ] Following her discharge from Oakville Trafalgar hospital on August 8, 2010 L.J. was taken by her parents for examinations to Dr. Ford-Jones in order to monitor her growth and development. Dr. Ford-Jones saw L.J. first for an examination August 17, 2008. He was reassured by his physical findings that day, noting that L.J. was looking well, feeding well and growing adequately. [ 72 ] Dr.

Ford-Jones saw L.J. next on August 25, 2008 when he noted that she looked well and contented. He observed that she “handled well” in what he described as a crude look at her physical and neurological development. On September 10, 2008 Dr. Ford- Jones noted that L.J. looked fine and was feeding well, although he expressed some concern that she was overfeeding at eight times per day. On September 18, 2008 Dr. Ford-Jones was told by her parents that she was regularly spitting up - regurgitating her food. He noted that L.J. looked well although he noted an umbilical hernia and a “little” heart murmur.

Both of these he described as not significant. [ 73 ] October 3, 2008 Dr. Ford-Jones noted that L.J. was overfeeding at seven times per day but her physical examination was fine. The small hernia and small murmur were both still present but not of concern. Dr. Ford-Jones did note that on this occasion L.J. was suffering from “torticollis” – a twisted neck that can commonly be improved by changing the baby’s sleeping position. [ 74 ] October 21, 2008 Dr. Ford-Jones was told by her parents that L.J. was spitting up less frequently. Her physical examination was “unremarkable”.

It was at this time that L.J.’s parents were told to take her for an RSV immunization. Dr. Ford-Jones did not note the date of that appointment but testified that November 14 would have been typical timing. [ 75 ] Dr. Ford-Jones saw L.J. at a routine appointment Tuesday November 11, 2008. He testified that during the visit L.J. appeared well. He did not measure her head circumference that day nor did he make any specific observations of her fontanelle but he indicated that his examination would involve a handling of the infant and that he noticed nothing unusual whatsoever in her presentation. [ 76 ] Dr.

Singh testified about the presence of three different ages of subdural bleeding apparent on the CTscan done November 14, 2008 of L.J.’s head, discernable by their different colours. Dr. Singh testified that the acute blood would be 0-3 days old, the sub-acute blood can be anywhere between 3 days and 3 weeks old, but is usually no older than 7 days and chronic bleeding can be up to three months old. [ 77 ] I note that the evidence given by Dr. Singh would indicate that during the time period L.J. was seen regularly by Dr. Ford- Jones she had experienced at least one shaking episode. Dr.

Singh’s evidence was that L.J. likely accommodated the subdural bleeding that had occurred during that time frame but that an acute episode, within three days of her admission on November 14, 2008, would have “tipped” her into a situation where she was no longer accommodating intracranial pressure resulting from the bleeding and began to be symptomatic. [ 78 ] Dr. Harvey was unable to date the retinal haemorrhages she saw in the November 17, 2008 retcam images other than to say that they were more than 12 hours old. She testified that they all appeared to her to be the same age.

None were very fresh and none were very old. [ 79 ] Dr. Lloyd gave the opinion that it was clear that something happened to L.J. between her examination November 11, 2008 and her admission to hospital November 14, 2008. Of particular note to him was the fact that L.J.’s condition deteriorated significantly in the 24 hours following her admission. She was demonstrating signs of increased intracranial pressure in that her heart rate was low, her blood pressure was high and she was experiencing apnea, to the point she had to be put on a ventilator. That suggested to Dr.

Lloyd that there had been an acute event that progressed quickly. [ 80 ] Dr. MacMillan gave the opinion that if retinoschisis was present when Dr. Ford-Jones examined L.J. on November 11, 2008 she would not have expected L.J. to have looked alright. In her opinion, something caused the retinoschisis in the 3-4 days before L.J.’s admission. [ 81 ] C.A. could not recall if P.R. had been alone with L.J. in the week before her hospitalization, other than when she had gone outside for a smoke – that was quite common.

[ 82 ] S.J.1 recalled that he had been working days the week before L.J.’s admission. This would be consistent with P.R.’s confession – that S.J.3 had been away from home – she worked 3pm - 9pm – and that S.J.1 and C.A. were home but outside smoking at the time he shook L.J.. [ 83 ] P.R., in his statement to police, was unsure of the exact date, but said that he had shaken L.J. sometime after S.J.3’s birthday celebration on November 8, 2008 and before L.J.’s admission to hospital on November 14, 2008.

I note as well that P.R. in his testimony at trial denied shaking L.J. at any time. [ 84 ] While it is clear from the medical evidence that L.J. had experienced at least one shaking episode sometime in the three months prior to November 8, 2008, I am satisfied beyond a reasonable doubt that she was shaken again within the week prior to her admission to hospital on November 14, 2008. Alternate Suspects [ 85 ] It is clear that a number of people had access to L.J. between August 8, 2008 and November 14, 2008.

It is not suggested, however, that anyone other than C.A., S.J.1, S.J.3, S.J.2, H.R. or P.R. was alone with L.J. without another adult present. [ 86 ] Both S.J.2 and H.R. testified as to their contact with L.J. and their observations of the interaction of the other adults with L.J.. I accept their testimony that neither one did anything to hurt L.J.. I also accept their testimony that they never observed anyone else do anything to L.J. that would have caused her harm. [ 87 ] Dr. Ford-Jones, in his meetings with L.J.’s parents noted that her mother, C.A., was extremely young and exceptionally immature.

He noted that C.A. was less engaged with L.J. at the start than was L.J.’s father, although Ms C.A. improved in this over time. Dr. Ford-Jones observed that L.J.’s father, S.J.1, appeared more mature, very quiet but more in charge. Dr.

Ford-Jones had the sense that between them, they would be adequate parents. [ 88 ] Meaghan Christie, the CAS after-hours worker who participated in the interviews of C.A. and S.J.1 at the hospital November 14 and 15 testified that she was surprised that both parents did not show much emotion when advised of L.J.’s condition, and showed more emotion when advised of her apprehension by CAS. Ms Christie did not know what Ms C.A. and Mr. S.J.1 had been told before that by police or medical personnel. It was apparent from Ms C.A.’s testimony that before those interviews Dr.

Lloyd had conveyed to both parents the seriousness of L.J.’s condition. [ 89 ] C.A., S.J.1 and S.J.3 each testified and each denied they had done anything to hurt L.J.. Each specifically denied ever shaking L.J.. They all testified that they had never seen one another, or P.R., hurt L.J. in any way. They all testified that they had never seen one another, or P.R., treat either L.J. or A.R. in any way that caused them concern. [ 90 ] I have certain reservations about the testimony of each of these witnesses and so approach their testimony with caution.

I noted, in particular, that S.J.3 was, in her testimony, very protective of her brother S.J.1. She testified, when asked if S.J.1’s fight on his birthday was a last straw for her, that “there are no last straws for my brother”. [ 91 ] I noted that S.J.1, in his testimony, was very protective of C.A.. He agreed that he had a routine of calling C.A. every three hours but did not agree that she had difficulty remembering to feed L.J.. He testified that he never saw C.A. pull her hair out and she never told him she had done so. He testified that he did not recall that C.A. had to be reminded to support L.J.’s head.

He testified that C.A. was never frustrated with L.J. when he was present. [ 92 ] It would appear, from the testimony of Meaghan Christie and Dr. MacMillan that both C.A. and S.J.1 were not forthright about their use of marijuana when they were first interviewed by CAS, Dr. MacMillan and police on November 14 and 15, 2008, although S.J.1 did disclose legal difficulties related to trafficking in marijuana. Meaghan Christie recalled that C.A. denied drug use since 2007.

Both C.A. and S.J.1 testified at trial that in November 2008 they were both using marijuana. [ 93 ] Meaghan Christie testified that she views parental drug use as a risk factor for the safety of a child. [ 94 ] In the interviews November 14 and 15, 2008 both S.J.1 and C.A. denied domestic violence although it is clear from the testimony of everyone present for S.J.1’s birthday in September 2008 that there was a physical altercation between them that night. [ 95 ] C.A. was forthright about some earlier mental health issues, abuse in her own family and that sometimes L.J.’s crying stressed her so much that she would go outside and pull her hair out. [ 96 ] There is no question that the house at […] Street was filthy and extremely untidy.

No one disputes that its condition as video- recorded by P.C. McLellan on November 15, 2008 was an unsafe environment for children, if not the adults themselves. It is also clear that the condition of the home was equally the responsibility of all four adults, including Mr. P.R.. [ 97 ] Lisa Potts testified that when she visited […] Street on November 19, 2008 together with P.C.

Theriault, all four adults were present, and when she told them she had just come from the hospital, none of them enquired as to L.J.’s condition. [ 98 ] When Lisa Potts monitored the visit S.J.1 and C.A. had with L.J. on December 10, 2008 she needed to tell the parents when L.J. needed to be fed. Ms Potts observed that C.A. was showing no interest in holding L.J. and when she did so, held the infant with her arms semi to fully extended. C.A. needed prompting to cuddle the baby and did not appear anxious nor did she respond when L.J. was screaming.

Both parents needed prompts with respect to the proper way to hold L.J.’s head. C.A. [ 99 ] Dr. MacMillan testified that she is engaged in research in respect of the science of risk factors associated with abuse of

children. She testified that these risk factors include young parental age, unplanned pregnancy, a maternal history of domestic violence, and limited supports. Other factors are low level education, violence within the relationship, use of marijuana, and a maternal history of mental health problems. All of these risk factors were present for C.A.. [ 100 ] C.A. testified. She was fidgety during her testimony. She testified that she was 17 when L.J. was born. While she acknowledged that the single most important thing to her is to get her daughter back, she would do it the proper way.

She denied that she would say whatever she needed to say to make CAS happy. [ 101 ] It was clear throughout C.A.’s testimony that she was poor with dates and time frames. She agreed that of the four […] Street adults she spent the most time with L.J.. She agreed that she spent 90-95% of her time with L.J.. [ 102 ] C.A. testified that she had taken a pre-natal course where she learned how to properly support a baby’s head. She testified that she understood even before L.J. was born that in not supporting a baby’s head there was a real risk of injury that could result in serious brain problems.

She testified that she knew how to support L.J.’s head and did. [ 103 ] C.A. acknowledged that she had put on the list of possible explanations for L.J.’s injury “not supporting her head, thought it was strong enough”. While Ms C.A. insisted that the list was from all four of the […] Street adults, she was “pretty sure” that possible explanation had come from her. She agreed that she had thought L.J.’s neck was strong enough to support her head before November 14, 2008.

She was quite definite that she had not stopped supporting L.J.’s head completely; she just did not support her head as much as before. [ 104 ] C.A. testified that after L.J. had “brain surgery” in December 2008 she knew that she had to be really careful of L.J.’s head. She testified that she did not recall Lisa Potts telling her how to support L.J.’s head because she knew how to support L.J.’s head. C.A. acknowledged that if Lisa Potts had had to instruct her it was because she was not supporting L.J.’s head the way Ms Potts wanted her to.

She testified that she guessed that she had not thought a lot about what she’d been told about being careful of L.J.’s head. [ 105 ] C.A. testified that she had never dropped L.J. on the couch from a height of 6-8” in such a way that L.J.’s head moved as if she was on a rollercoaster. She denied yanking L.J.’s legs up when changing her on the floor causing L.J.’s head to move. [ 106 ] C.A. described P.R. as playing video games roughly 10 hours per day. This is clearly an exaggeration, as all other witnesses, including Mr. P.R., testified that he played video games 2-3 hours per day.

C.A. testified that she did not time it but it was “pretty much every minute he had to spare”. She did not recall if Mr. P.R. ever spent more than a few minutes alone with L.J.. She did not recall L.J. being frightened of P.R.. [ 107 ] C.A. testified that L.J. cried “a fair amount” but most of the time it was not difficult to soothe her. Ms C.A. testified that sometimes it was difficult to soothe L.J. and she would pull her own hair out because of the stress and she would go outside to smoke. [ 108 ] C.A. denied that she ever hit or shook L.J.. She denied that she ever dropped or threw L.J. onto a couch.

On November 14, 2008 when interviewed by police, CAS and Dr. MacMillan, C.A. suggested that L.J.’s injury could have been from S.J.1 bouncing her up and down or from L.J. accidentally bumping her head off the car seat. [ 109 ] Dr. Ford-Jones noted that C.A. stopped breastfeeding L.J. as Ms C.A. had difficulty remembering to use the breast pump. He noted that initially Ms C.A. was less engaged with L.J. than was S.J.1 although that improved over time. [ 110 ] C.A. asked the inoculation nurse about the fact that L.J. had been sleeping excessively and had been projectile vomiting.

C.A. testified that L.J. had a little scratch on her forehead but she had no idea what had caused that. [ 111 ] Melanie White, the CAS worker assigned to L.J. in January 2009 noted that during supervised visits C.A. did not immediately participate with L.J. and when she did, held her awkwardly. Ms C.A. was, however, receptive to suggestions. Ms White had to direct both parents to respond appropriately to L.J.’s needs. During the visit January 21, 2009 C.A. said she thought L.J.’s motor skills were improving because her hair was growing.

On all occasions S.J.1 took the initiative with L.J.. [ 112 ] Lisa Potts testified that when she spoke with C.A. on November 19, 2008 she asked why her telephone calls had not been returned. Ms C.A.’s response was “I don’t know”. When Ms Potts told Ms C.A. she had left messages on the home telephone and cellphone, Ms C.A. advised her she had lost the password for the cellphone. [ 113 ] C.A. told Lisa Potts on December 19, 2008 that she “partied” using both marijuana and alcohol in the previous couple of years and that she had used during her pregnancy.

She agreed that she and P.R. were the primary marijuana smokers in the house. She agreed that they smoked every day and “probably” more than one joint. She agreed that it was possible she lied to CAS on November 14, 2008 about her drug use. She testified that she did not know what was going through her mind at the time. [ 114 ] C.A. admitted that on one occasion she had gotten drunk and had fallen asleep in the bathtub. [ 115 ] I note that no questions about C.A. were put to H.R.. [ 116 ] S.J.3 described C.A. as a very young and inexperienced mother.

Ms S.J.3 testified that she didn’t really see a bond between C.A. and L.J., but she never saw C.A. handle L.J. roughly. She did see C.A. react when L.J. cried. Sometime Ms C.A. would go outside for a cigarette if L.J. continued crying. S.J.3 recalled that when C.A. called her on November 14 to tell her L.J. had “bleeding in her brain”, C.A. seemed devastated. [ 117 ] S.J.3 did not recall having a conversation with C.A. about supporting L.J.’s head except maybe when L.J. first came home from the hospital. She never saw C.A. pull out her own hair.

Sometimes she did make suggestions to C.A. like to put a towel on L.J. when she was taken out of the bath. She recalled that C.A. did what she suggested.

[ 118 ] S.J.3 testified that if C.A. had dropped L.J. on the couch or yanked L.J.’s feet up while changing her S.J.3 was not present and no one ever told her about those things happening. [ 119 ] P.R. testified that the night of S.J.1’s birthday and after the altercation between S.J.1 and C.A. he watched TV for a while then headed upstairs to bed. At that time he saw C.A. holding L.J. with L.J.’s bum in the crook of C.A.’s arm. C.A. was not supporting L.J.’s head. He observed this for about 10 seconds. [ 120 ] V.D., P.R.’s mother, testified about the night of S.J.1’s birthday.

She testified that S.J.1 came home intoxicated and very angry. He and C.A. were yelling at one another and she saw S.J.3 push C.A. to the ground. Later she saw C.A. come downstairs with L.J. straddling her hip. C.A. was not supporting L.J.’s head. She observed them for about 6 minutes while C.A. prepared a bottle for L.J.. She testified that L.J. was crying and C.A. seemed very irritated. She did not say anything to C.A. about the way she was holding L.J..

She testified that she would not stand by if she thought someone was treating a baby in an unsafe way. [ 121 ] M.R., P.R.’s sister, testified that on one occasion when she was visiting […] Street, she observed C.A. drop L.J. onto a couch from a height of about 3cm. When she demonstrated the distance, it measured 4.5 inches or 11.5 cm.

Ms M.R. testified L.J. was “like a bump on a log”, then her head moved “back and forth like a roller coaster”. [ 122 ] During the same visit, M.R. testified that she observed C.A. place L.J. gently on a blanket on the floor to change her, then saw C.A. lift L.J.’s legs with one hand. L.J.’s head remained on the floor but her head went back and forth “like before”. M.R., who was 16 or 17 at the time, said nothing to C.A. because she did not think it her place.

She testified that if she saw someone hurting a baby she would say something. [ 123 ] Two things stand out about the observations of V.D. and M.R.: neither said anything about the way in which they say they saw C.A. handle L.J. at the time they made their observations and both testified that they would have said something if the baby was being handled unsafely or was being hurt. In addition, M.R.’s description of the way in which L.J.’s head moved on each occasion does not, physiologically, accord with the actions she described C.A. making.

I note as well that more serious descriptions of these actions were put to Dr. MacMillan as hypotheticals, and even then Dr. MacMillan was of the opinion they could not account for L.J.’s injuries. S.J.1 [ 124 ] S.J.1 testified he had received some training with respect to how to bathe L.J. and how much to feed her but he thought the rest was common sense. He testified that he thought “everyone knows to support a baby’s head”. He testified that he would hold L.J. against his chest and shoulder. He testified that she liked to be bounced and when he did so he would have both hands behind her head and shoulders.

He denied that he ever hit or shook L.J.. He told police at the hospital that he thought his bouncing of L.J. might be a reason for her injury. [ 125 ] In cross-examination S.J.1 agreed it was possible he told police at the hospital that when bouncing L.J. he would hold her around her ribcage, his index fingers behind her head and thumbs on her jaw line.

He did not disagree that he may have put his head in his hands when told of L.J.’s injury. [ 126 ] S.J.1 testified that “it is common sense that you don’t shake a baby; it’s going to hurt them”. [ 127 ] S.J.1 agreed that he consumed a couple of beers a day but would only get drunk one or two times in a month. He agreed that S.J.3, C.A. and P.R. were not big drinkers and that he would drink the most of any of them.

He admitted to smoking marijuana although he testified that it was mostly C.A. and P.R. who smoked marijuana. [ 128 ] S.J.1 agreed that he had come home drunk from a bar on his 19 th birthday and was, on the telephone, threatening to fight his friends. He recalled that C.A. was trying to get the telephone from him and he had a verbal argument with her and pushed her away. He did not recall S.J.3 yelling at them. [ 129 ] S.J.3 testified that on S.J.1’s birthday she had to go and get him from the bar. He was drunk and angry. He started yelling on the telephone in the back yard.

C.A. was trying to pull telephone from his hands and S.J.3 pulled her off of S.J.1. [ 130 ] P.R. testified that C.A. jumped on S.J.1 and S.J.3 grabbed C.A. and threw her off. [ 131 ] C.A. was asked about S.J.1’s drinking. She acknowledged that he would have a beer weekdays even with L.J. present. Ms C.A. testified that S.J.1 was not a mean drunk, but that once on his birthday, September 7, 2008, he had come home drunk. He’d been left by his friends at a bar and got beaten up by a bouncer. When S.J.1 came home he was yelling at his friends on the telephone and she was telling him to get off the phone.

He was telling her to stop. She denied she was holding L.J. during the argument. She agreed that S.J.1 had put his hands on her and he had been violent. Evidence About P.L. [ 132 ] It is clear from the testimony of all of the witnesses, including P.R., that he had ample opportunity to have shaken L.J.. There were occasions when he was left alone in the house to watch both L.J. and A.R., and he was often, on a daily basis, left inside to supervise the infants while the other adults were outside smoking.

S.J.1 estimated that P.R. would have regularly been left alone in the house with L.J. for 15 minutes a day and sometimes 15 minutes at a time. [ 133 ] It is also clear that each of the […] Street adults had opportunity to injure L.J.. Each of them testified that prior to November 14, 2008 they had no concerns about the way in which any of the others, including P.R., handled L.J.. S.J.1 testified that when L.J. first came home from the hospital in August 2008 P.R. was nervous about holding L.J. and would not like to hold her for long periods of time. S.J.1 agreed that Mr.

P.R. was worried that that he might do something to L.J..

The Video Games [ 134 ] Mr. P.R. testified that he had grown up in St. Catharines. When he moved to Burlington with S.J.3 he was away from his family and friends. He was not involved in community groups or church in Burlington. There was also no evidence that he was involved in community groups or church in St Catharines, but he did play football and chess in high school. Mr. P.R. testified that he had been playing video games since he was five or six years old. [ 135 ] It is clear that Mr. P.R. spent most of his free time at […] Street playing videogames.

He had a separate television in the living room so that he could play videogames while the others were watching television on another set. He testified that he played online with his friends from Conestoga Cold Storage. He testified that his Xbox Live membership ran out around November 2008 and he did not renew it because of the cost. He could play videogames offline as well. He testified that he would play two to three hours each day. [ 136 ] S.J.3 testified that Mr. P.R. played videogames at least three hours a day, every day. She testified that when playing videogames P.R. would pay 100% attention to it.

She talked to him about this because from time to time she would ask him a question while he was playing and would not get a response. He would not even look at her until that particular match was over. Each match was 10 minutes long. S.J.3 testified that everything had to wait until that 10 minutes was up. [ 137 ] S.J.3 testified about an incident when she had asked Mr. P.R. to help with A.R.. Mr. P.R. was playing a videogame and he said it had to wait. She turned the system off. S.J.3 testified that Mr.

P.R. became extremely angry and picked up a nearby guitar and took it into the basement, holding it as if he was going to smash it. She apologized to him for making him mad. He did not smash the guitar. [ 138 ] Mr. P.R. in his testimony admitted this incident had occurred. He testified that he had gone downstairs to smash the guitar so that the children would not be present. He testified that he asked S.J.3 if it would make her happier if he smashed the guitar. He testified that S.J.3 “knew it would be over with me in a matter of seconds”. He testified that the entire incident lasted five minutes.

This comment suggests that Mr. P.R. had gotten angry with S.J.3 before and that his anger was short lived. [ 139 ] This incident demonstrates two things: Mr. P.R.’s extreme reaction to his videogame being interrupted and the violent, if short lived nature of his reaction. Mr. P.R. testified that his frustration and anger came up quickly and was over quickly. [ 140 ] S.J.3 testified that once when there was an extended family dinner, Mr. P.R. did not eat with the family but took his dinner inside to the television in order to play videogames. Mr.

P.R. testified that at the time, S.J.3 asked him why he was eating inside and away from the family. He said that he told her there was not enough room outside. S.J.3 was adamant that she had set the table and the chairs and there was room for everyone, including Mr. P.R.. [ 141 ] S.J.3 testified that Mr. P.R. would lie on his stomach on the floor while playing videogames. He would sometimes lay A.R. on his chest and continue to play the game around A.R.. If A.R. would crawl on Mr. P.R. while he was playing he would remove A.R. or ask S.J.3 to remove A.R.. Mr. P.R. testified that this happened “once or twice”.

S.J.3 testified that if she was out, Mr. P.R. would leave A.R. in his high chair for an hour at a time while he played videogames. [ 142 ] When asked how he would react if his videogame playing was interrupted by one of the children, Mr. P.R. replied “I’d be perfectly fine. I’d stop the game and go look after them”. I noted at the time Mr. P.R. gave this testimony that it seemed disingenuous. It also does not accord with his testimony that his videogame playing caused unhappiness between him and S.J.3. [ 143 ] S.J.1 testified that he was not aware of any tension or arguments between Mr.

P.R. and S.J.3 with respect to Mr. P.R. playing videogames. He agreed that he would never have left L.J. in P.R.’s care if he was concerned that Mr. P.R. would get frustrated while playing videogames and pose a risk to L.J.. [ 144 ] C.A. testified that before November 14, 2008 she had no concerns about leaving L.J. alone with P.R.. She testified that if she was outside having a smoke and there was someone inside the house with L.J. she did not really pay attention to what was going on inside. C.A. also testified that from time to time what she was smoking outside was marijuana. [ 145 ] When Mr.

P.R. spoke to police November 21, 2008 and told them that he had shaken L.J. to stop her from choking, he mentioned that he had been playing videogames both before and after. Ultimately he admitted he had shaken L.J. to stop her from crying while he was playing videogames. He confirmed that C.A. and S.J.1 had been outside smoking at the time. [ 146 ] Mr. P.R. testified that when he told the “choking story” to Jason Ricketts, to S.J.1 and to C.A. he did not mention that he had been playing video games at the time. He thought he “may” have mentioned it to S.J.3.

Later in his testimony he said that he was “sure” he had mentioned it to S.J.3. V.D. testified that when P.R. told her the choking story he did not mention playing video games just before and after. [ 147 ] Mr. P.R. first testified that when he played video games it was when A.R. was not there, then he testified that his video game playing in the week prior to November 14 was interrupted [by the babies] “all the time” and that sometimes the babies would be crying when he was playing; sometimes not. “It was basically every day”.

P.R.’s Statements to Police [ 148 ] P.R. was interviewed by police at his workplace in the early morning hours of November 15, 2008. The interview was audio recorded. In that interview Mr. P.R. admitted that he had daily contact with L.J. and had babysat her twice when the other adults were away from the home. He denied shaking her or of knowing of anyone shaking her. [ 149 ] P.R. was interviewed again by police November 21, 2008 at the police station. This began as a follow-up interview in a “soft” witness room. The interview was video recorded. In this interview Mr.

P.R. said that on one occasion while he had been watching L.J.

for her parents who were outside of the residence smoking she had begun to choke. He said that he first patted her on the back then shookher to stop her from choking. He told police “after the fact yes I thought it was too hard”. [150] Mr. P.R. was cautioned and given rights to counsel. He declined counsel and indicated he wished to continue speaking to police.He gave further details of the “choking” incident, advising that as L.J. was “OK” afterwards.

He said he did not tell anyone about whathad happened until after November 14, 2008 when L.J. had been hospitalized and he was told that her injuries were likely due to shaking.Mr. P.R. was able to confirm that the incident had occurred after November 8, 2008 but he could not be more specific about the date. Headvised that at the time he had been playing a video game. He told the officer that he was “good enough to be paid” at videogaming. [151] Mr. P.R. was formally arrested, re-cautioned and again given his rights to counsel which he declined.

He was searched, bookedand lodged in a cell for approximately four hours during which he was given a meal and he slept. [152] The interviewing officer then escorted Mr. P.R. to a regular interview room. This interview was also video recorded. Theofficer confronted Mr. P.R., telling him that he did not believe the “choking” story, and that he did believe that Mr. P.R. had shaken L.J.to stop her from crying while Mr. P.R. was playing a video game. [153] P.R. admitted to the officer that he had made up the “choking” story and that he had shaken L.J. when she would not stopcrying while he was playing a videogame.

He said that he had initially tried to calm L.J. by patting her on the back but that her cryinghad made Mr. P.R.’s son A.R. cry as well. Mr. P.R. described shaking L.J. to make her stop crying and that she did stop. He said that shewas quiet after and he asked her if she was “OK”. He maintained that he had not shaken her hard enough to hurt her. Testimony of P.R. [154] P.R. testified that he did not do anything to L.J. that would have caused her injury. He did not shake her.

He testified that he toldpolice on November 21, 2008 first that he shook L.J. when she was choking and then told police that he shook her because she wascrying when he was playing videogames but these things did not happen and were not true. He testified that he told police these thingsbecause he feared that if he did not confess to hurting L.J., CAS would take his own son into care.

He felt it would be better even if hecould not see his son that S.J.3 have custody of A.R. rather than have A.R. go into foster care. [155] The Court must begin the analysis as to whether the charges have been proven beyond a reasonable doubt by assessing theevidence of P.R.. The Court must approach Mr. P.R.’s evidence in accordance with the direction given by the Supreme Court of Canadain R. v. W. (D.) (SCC), [1991] S.C.J.

No. 26 at paragraph 28: First, if I believe the evidence of the accused, I must acquit Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit Third, even if I am not left in doubt by the evidence of the accused, I must be satisfied beyond a reasonable doubt on the basis ofthe evidence which I do accept, of the guilt of the accused. [156] The decision of the Supreme Court of Canada in R. v. C.L.Y. 2008 SCC 2 , [2008] S.C.J.

No. 2 reiterates that thesesteps need not be religiously followed as long as the correct burden and standard of proof are applied. (paragraph 7) I am well aware thatit is not simply a matter of choosing between evidence given by other witnesses or Mr. P.R.’s own statements and the testimony given bythe accused.

The onus never shifts from Crown to defence and I must be satisfied beyond a reasonable doubt that the essential elementsof the alleged offence have been proven. [157] I am also cognizant that a trier of fact may accept all, part or none of any witness’ evidence, and may accord different weight todifferent parts of the evidence that the trier of fact has accepted. R. v. J.H. (ON CA), [2005] O.J. No.39 (C.A.) atparagraph 44. It is difficult to assess any witness’ evidence in isolation. A trier of fact may assess the credibility of the accused inrelation to that of other witnesses. R. v. Hull (ON CA), [2006] O.J.

No.3177 (C.A.) at paragraph 5. A trier of factnonetheless must be satisfied on the totality of the evidence that there is no reasonable doubt as to the guilt of the accused. (W.(D.), atparagraphs 26-28.) [158] In this case the strongest evidence implicating Mr. P.R. in the commission of the crime does not come from another witness butfrom his own statement to police and his subsequent confession to S.J.3. I conclude that I may assess P.R.’s testimony in relation to theevidence of his statement to police, as well as in relation to the testimony of other witnesses. [159] Mr.

P.R. was soft-spoken throughout his testimony but generally gave his evidence in a straightforward manner. I noted thatMr. P.R. throughout his testimony had difficulty remembering specific dates. He testified “I’m kinda bad with dates”. [160] Mr. P.R. testified that he was well aware of the importance of supporting a baby’s head and he had heard of shaken babysyndrome before L.J. was admitted to hospital. [161] Mr. P.R. testified that when L.J. first came home from hospital he had no physical contact with her but then he got morecomfortable picking her up.

He would bounce her up and down with his fingers at the back of her head. He said that L.J. “a lot of times”“cried a lot”. He testified both that L.J. was happy “most of the time” and when asked if she cried, he responded “oh, yes”.

[ 162 ] Mr. P.R. testified that he had last looked after L.J. on November 14 when C.A. was getting her bags and stuff packed in order to take L.J. to her inoculation appointment. [ 163 ] Mr. P.R. denied that he had tried to cast suspicion on S.J.1 and C.A. in his first interview November 15 when he said to the officer that he thought the officer would ask him more questions about C.A. and S.J.1, and he described how he had seen C.A. handle L.J. without supporting her head and that C.A. had a tendency to let L.J. cry ”for quite a bit”.

He testified that he was only trying to give the officer more information. [ 164 ] Mr. P.R. admitted that in his video interview he had told police about C.A. having fallen asleep in the bathtub while drunk. He testified that he was trying to be helpful. He agreed that he had told police that L.J. had almost fallen off the couch once and had also mentioned the dog running by. He testified that he thought it was something police should know. He mentioned to police that A.R. had thrown a ball at L.J. because he thought it was “helpful”. [ 165 ] In his statement to police Mr.

P.R. said L.J. had been vomiting on November 14 but that she had always spit up her formula. He told police that at this time her vomit was clearer, like saliva. In his testimony Mr. P.R. said that L.J. began spitting up a lot when her formula was changed. He testified that he “never saw it” so he did not know if it was projectile vomiting. Mr.

P.R. testified that he had not observed any change in L.J.’s sleeping but that S.J.1 had come to him “all concerned” that L.J. had slept for 13 hours. [ 166 ] P.R. testified that he knew it was a serious thing for him to say that he had shaken L.J. even in the choking scenario. He testified that he knew there was a possibility he would be charged in relation to the choking story but he “didn’t think it would be that bad, not like this”. [ 167 ] Mr.

P.R. testified that when he told police that he shook L.J. until she stopped “because it’s happened before”, he meant that L.J. had choked before, not that he had shaken her before. This explanation makes sense because he made that statement at the time he was maintaining the choking story and had not yet admitted he had shaken her to stop her from crying. [ 168 ] Mr. P.R. testified that he first tried out the choking story on his supervisor Jason Ricketts to see if it would be accepted. He testified that he did not want to go to police with something unbelievable.

He also told the story to S.J.3, to S.J.1 and to C.A.. Mr. Ricketts told him to come forward. The others were supportive of his efforts to save L.J.. His mother tried to dissuade him from coming forward as did S.J.3. Mr. P.R. testified that he told the choking story to everyone as if it were true. Mr.

P.R. testified that he did not tell anyone that his confession was a false one because he did not want to be talked out of going to police with the story. [ 169 ] P.R. testified that it appeared to him that S.J.3 believed the choking story, and he was comforted that S.J.3, S.J.1 and C.A. all seemed to believe the choking story; that they seemed to think he’d done something heroic. He acknowledged that he knew from the start that there were big problems with the story if someone really thought about it. He testified that he did not have much time to think about it – to make it perfect. [ 170 ] Mr.

P.R. testified that when he saw that the choking story was “not really going forward” with Detective Zafridis, he was scared. Mr. P.R. testified that he was trying to figure out why Detective Zafridis was not believing him. [ 171 ] Mr. P.R. testified that he agreed with the officer’s suggestion that he had shaken L.J. out of frustration to make her stop crying. He testified that he could not recall if he added any details to the officer’s suggestion. He agreed that he had brought up the fact that he had been playing videogames immediately before and after the shaking and that no one had suggested that to him.

He testified that he admitted to shaking L.J. for selfish reasons “to make sure my son didn’t go in to foster care.” [ 172 ] Mr. P.R. testified that when he spoke to police he was trying to make his story “not as bad as it could be”. Greg Simmons and the Plan to Confess [ 173 ] Mr. P.R. testified that he confessed to shaking L.J. to police because he believed that if someone did not come forward his own son would be taken away and put into foster care. Evidence in support of this belief exists in the testimony of S.J.3, C.A. and S.J.1 with respect to their

interpretation of what Greg Simmons said. Their actions following that support that each of them held the same belief. These included the making of the list of actions that could have hurt L.J. and S.J.1’s own aborted attempt to confess to hurting L.J.. Mr. P.R. testified that because S.J.1 had been talked out of falsely confessing, Mr. P.R. felt that he had to make the sacrifice. [ 174 ] Greg Simmons was the CAS worker assigned to A.R. as a result of the investigation into L.J.’s injuries. Mr. Simmons is now a police officer.

November 19, 2008 he attended […] Street to obtain the consent of A.R.’s parents to obtain A.R.’s medical records. He recalled that all four adults were present when he attended but that he asked C.A. and S.J.1 to go to the basement so he could speak to A.R.’s parents privately. [ 175 ] Mr. Simmons testified that he explained his role in respect of A.R. and told S.J.3 and P.R. to tell police what they knew and to tell the truth. He told them A.R. would remain with his grandparents until further notice. Mr.

Simmons testified that he told S.J.3 and P.R. that if they do know anything it is important they tell Halton CAS. At that point Mr. P.R. started to say something. Mr. Simmons stopped him and told him he would be interviewed by police soon. [ 176 ] Mr. P.R. testified that when Mr. Simmons arrived on November 19 Mr. Simmons asked C.A. and S.J.1 to go upstairs while he spoke to Mr. P.R. and S.J.3. Mr. Simmons told them L.J. was not doing well. “She’s on death row”. Mr. Simmons told them “I know one of you did this and if one of you doesn’t come forward you’ll never see your kids again”. Mr.

P.R. testified that he was pretty sure that he went to say something, he did not recall what, but that Mr. Simmons stopped him and said to wait for the interview [with police] to say anything. Mr. P.R. testified that after Mr. Simmons left, he and S.J.3 told C.A. and S.J.1 what Mr. Simmons had said. [ 177 ] S.J.3 could not remember the date but recalled that “the four of us” sat down with pen and paper after speaking with Greg Simmons. She testified that she was pretty sure Mr.

Simmons had spoken to “the four of us” and told them that “one of the four of us did something to L.J. and if one of us didn’t come forward none of us would see our children”.

[ 178 ] S.J.1 testified that he recalled only one discussion involving the four […] Street adults after A.R. had been taken out of the house. He believed it was the Monday following L.J.’s admission and took place in the townhouse living room. The discussion was of any things that could have caused an injury to L.J.. S.J.1 recalled that prior to the “brainstorming” session, “somebody told somebody” if no one could figure out what happened none of them would see their kids again. [ 179 ] Mr.

Simmons testified that he could not recall saying anything to all four parents in respect of the status of or access to their children during the investigation. He denied that that he said anything about what would happen if no one came forward about L.J.. [ 180 ] Even if I am unable to determine whether Mr. Simmons in fact told C.A., S.J.1, S.J.3 and P.R. that if one of them did not come forward none of them would see their children again, or whether he told them that if they knew something about what had happened to L.J. they should tell police, I am prepared to find that something Mr.

Simmons said led the four to conclude that no one coming forward would impact on CAS decisions regarding custody of their children. [ 181 ] Mr. Simmons, at the request of the police, arranged for S.J.3 and P.R. to attend the police station to be interviewed on November 21, 2008. He also attended and met them in the lobby.

He was not a participant in the interview of P.R. although he did monitor some of it from another room. [ 182 ] H.R. testified that some time after L.J. was hospitalized she received a telephone call from S.J.3, who told her S.J.1 was “a mess” and is saying he will confess so S.J.3 and C.A. won’t lose their children. H.R. spoke with S.J.1, who she described as distraught. He told her he was going to confess to “whatever”. Ms H.R. asked S.J.1 if he had done anything to L.J. and he said he had not. Ms H.R. told him not to confess as they (the authorities) would never find out what really happened to L.J..

Ms H.R. described S.J.1 as sounding desperate but speaking coherently and he seemed to understand what she was telling him. [ 183 ] C.A. testified that it was quite upsetting to all four of the adults at […] Street when CAS arranged for A.R. to live elsewhere. She recalled that the four of them came up with a list of things that might have caused L.J.’s injury. She wrote the list but the information came from all of them. C.A. could not recall if there was one or more meetings with the four of them to discuss how L.J. could have been injured.

She did not recall if someone had suggested she take the fall because she was a Young Person. She recalled that S.J.1 said he would say he did it “so we could get our kids back” but she told him not to if he didn’t do anything. Then P.R. said he would confess. [ 184 ] C.A. testified that P.R. said that L.J. was choking and as a measure of first aid he patted her back to stop her from choking. She did not recall Mr. P.R. saying he did anything else to L.J.. Mr.

P.R. said he was going to go and talk to the “cops”. [ 185 ] S.J.1 testified that during the group discussion he suggested that he would say he did it by bouncing L.J. on his knee so everyone would get their kids back. Everyone said “no, don’t do it”. He recalled that S.J.3 called his parents’ house and he spoke to H.R. who told him not to confess if he didn’t do anything. S.J.1 testified that he already knew from talking to the doctors that his bouncing of L.J. could not have caused her injury. [ 186 ] Mr. P.R. testified that following the meeting with Mr.

Simmons the four adults had a discussion in the living room where they tried to brainstorm about what could have happened to L.J.. C.A. was making a list of what everyone “threw out”. During the discussion S.J.1 stood up and said he was going to take the blame for what happened. Mr. P.R. testified “we all told him if he didn’t do anything, don’t do it”. Mr. P.R. testified that he was upset because they were talking about taking the blame for something none of them did. [ 187 ] Mr.

P.R. testified that they talked about C.A. taking the fall because she was younger and wouldn’t get in trouble as much, but then they decided “never mind”. Mr. P.R. testified that the items on the list, Exhibit # 9, “stopping supporting the baby’s head” and “swinging the baby’s head around” were not discussed during their meeting. [ 188 ] Mr. P.R. testified that he did not bring up the choking story at the meeting, but raised it with S.J.3 later that day. He told her that he had shaken L.J. to stop her from choking, but that was not true. Mr.

P.R. testified that at the time he had this conversation with S.J.3, A.R. was inside sleeping. It is clear from other evidence that A.R. was, as of November 19, out of the […] Street house. Mr. P.R. testified that he tried to think of something he could take the blame for, and that L.J. would choke on her bottle sometimes and spit up. It was not very bad and no one ever had to take any action. He testified that he tried out the story on Jason Ricketts [ 189 ] Mr.

P.R. testified that S.J.3 was back and forth about whether he should tell police but that he had decided to do so so that his son would be with S.J.3 and not in foster care, and so that L.J. would be back with her parents. He testified that he felt heartbroken. He told S.J.3 that he was not going to say anything to police about the choking because he did not want her to worry. [ 190 ] Mr. P.R. testified that he felt terrified when he saw Mr. Simmons at the police station because of what Mr. Simmons had said to them.

He testified that he was scared because he was about to say something that never happened so his son would be with his mother. [ 191 ] S.J.1 recalled that during their group discussion P.R. got emotional and teary-eyed and started saying he did it as a first aid thing. Mr. P.R. said “L.J. was choking; I tried patting her back. That didn’t work; I shook her.” S.J.1 was unsure whether Mr. P.R. also said “and maybe I didn’t support her head” or “I did not support her head”.

S.J.1 recalled that at the time he thought, because of his infant CPR training, he would have handled L.J.’s choking differently, but he thought that Mr. P.R. had done it “with a good heart”. Afterwards, he wondered why Mr. P.R. would not have told him about the choking incident at the time it happened but he never asked Mr. P.R. why he had not. [ 192 ] S.J.1 testified that he told P.R. he should probably tell police and clear things up. Mr. P.R. told him he had an interview with police in two or three days and he would tell them then.

S.J.1 agreed that when he spoke to police November 21, 2008 he did not tell them about his earlier decision to confess or about the list that C.A. had written. He denied that the list was deliberately suppressed until January 2009. He said that Mr. P.R., S.J.3 or C.A. could have told police about the list – “it wasn’t a secret”.

[ 193 ] During the discussion, S.J.3 recalled that S.J.1 was crying and said that so the rest of them could have their children back he was going to say he’d done something to L.J.. S.J.3 thought this was foolish because if no one did anything they [CAS] would not keep the kids. She put S.J.1 on the telephone with H.R. and afterwards S.J.1 agreed he would not confess and their “brainstorming” continued.

S.J.3 recalled that at some point during the discussion it was “brought up” that C.A. as a Young Person would be treated less harshly by the authorities for hurting L.J.. [ 194 ] S.J.3 testified that after the brainstorming meeting Mr. P.R. spoke to her privately and told her about L.J. choking and his shaking her to stop the choking. Mr. P.R. told her at that time he did not remember which day of the week it happened but that C.A. and S.J.1 had been in the backyard having a smoke at the time. Ms S.J.3 told Mr. P.R. to tell C.A. and S.J.1 and she was present when he did so the following day.

She was pretty sure he told them the same thing he had told her. Ms S.J.3 recalled a second meeting with Greg Simmons in which Mr. Simmons told them if any of them had anything to say they should save it for the police. [ 195 ] I note the following about S.J.3’s testimony in respect of Greg Simmons; She was incorrect when she said that Mr. Simmons spoke to all four […] Street adults together and she was incorrect when she said there was a subsequent meeting with Greg Simmons.

I view these as inaccuracies rather than any attempt to mislead the Court. [ 196 ] V.D. testified that after L.J. was admitted to hospital P.R. called her and said “I think I might be the one who caused it.” He described L.J. choking and said he had picked her up and bounced her and when she was still choking he shook her but he supported her neck. T

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