Laura Bird

Following a jury trial, the accused was convicted of failing to provide the necessaries of life to his infant child but the jury was unable to reach verdicts on related aggravated assault and assault counts.

At sentencing, the issue arose whether the court could determine under s. 724 of the Criminal Code whether the trauma inflicted on the child was intentional, which would constitute an aggravating circumstance.

The court held that a sentencing judge may determine relevant factual issues not resolved by the jury, provided the facts essential to the verdict are accepted and any aggravating circumstance is proven beyond a reasonable doubt.

Based on medical evidence and the accused’s after‑the‑fact conduct, the court concluded the trauma was intentionally inflicted.

The finding was included as part of the factual basis for sentencing.

The offender was convicted by a jury of failing to provide the necessaries of life to his infant child after failing to obtain urgent medical treatment following severe head trauma.

The court found beyond a reasonable doubt that the offender intentionally inflicted the trauma and knowingly failed to seek medical assistance for approximately 40 hours while the child displayed symptoms of serious brain injury.

The child suffered catastrophic and permanent disabilities, including blindness, cognitive impairment, seizures, and physical disability.

The court held that denunciation and deterrence were the paramount sentencing objectives given the offender’s knowledge of the injury and his decision to prioritize self‑interest over the child’s safety.

A penitentiary sentence was imposed after credit for pre‑sentence custody.

The Crown brought an application seeking to adduce evidence of prior discreditable conduct by the accused in a forthcoming second‑degree murder trial involving the death of an infant who had been in the accused’s care.

The proposed evidence included an earlier unexplained bruise on the child, statements allegedly made by the accused describing abusive conduct toward the infant, the shaving of the infant’s head without the mother’s consent, and contextual evidence suggesting resentment toward the child.

Applying the probative value versus prejudicial effect framework governing prior discreditable conduct, the court assessed whether the conduct was attributable to the accused, whether it was relevant and material, whether it was discreditable, and whether its probative value outweighed prejudice.

The court excluded evidence relating to the bruise and the shaved head, finding the prejudicial risk outweighed limited probative value.

However, statements allegedly made by the accused on the day of the incident and contextual evidence relating to animus and motive were admitted as relevant to state of mind and narrative.

The accused brought a pre‑trial motion challenging the language Crown expert witnesses could use when describing injuries to an infant in a criminal prosecution.

The defence objected to analogies describing the force required to cause the injuries, the use of the term “massive” for a subdural hematoma, descriptions of extensive bruising, evidence regarding the absence of any explanation for the injuries, and a graphic description of injuries to the child’s genitalia.

The court held that analogies explaining the magnitude of force could assist the jury in understanding scientific evidence and were permissible.

The term “massive” to describe the subdural hematoma was allowed as a medically accurate and understandable descriptor, and the Crown could lead evidence regarding the lack of explanation for the injuries as part of the medical history relied upon by clinicians.

However, the court directed that inflammatory wording describing genital injuries should be replaced with a more neutral description.

In a second‑degree murder prosecution involving the death of an infant following severe brain and retinal injuries, the court conducted a voir dire on the admissibility of opinion evidence from treating clinicians.

The defence argued that only forensic pathologists should be permitted to testify regarding the mechanism of injury and that clinicians lacked forensic expertise.

Applying the principles governing expert evidence, including the Mohan framework and considerations from the Goudge Inquiry into Pediatric Forensic Pathology, the court held that the treating neurosurgeon and paediatric ophthalmologist could provide opinion evidence within the limits of their specialized expertise.

The court concluded that their opinions regarding the likely causes of the brain injury and retinal haemorrhages were reliable, highly probative, and did not risk undue prejudice or confusion for the jury.

The clinicians were therefore permitted to testify regarding the likely mechanisms of the observed injuries.

The Crown sought to admit utterances allegedly made by the accused while in police custody after being advised of multiple robbery-related charges.

The accused argued the statements should be excluded because the exchange was not audio‑ or video‑recorded and the police account of a nine‑minute conversation was implausible.

The court reviewed the circumstances under which the statements were made, including that the police had not intended to conduct an investigative interview and that the statements were spontaneous responses to the reading of charges.

Applying the voluntariness rule and jurisprudence on non‑recorded statements, the court held that the absence of recording did not render the evidence inherently unreliable.

The Crown established voluntariness beyond a reasonable doubt, leaving issues of accuracy and weight for trial.

The accused brought a pre‑trial application alleging that police conducted an unlawful warrantless search of a cell phone recovered after a robbery suspect discarded it while fleeing police.

The accused argued the search violated s. 8 of the Charter and sought to challenge the seizure of contact and text message information retrieved from the phone.

The court held that although individuals generally have a reasonable expectation of privacy in cell phone contents, the accused bears the burden of establishing a personal reasonable expectation of privacy in the specific device searched.

Applying the factors from Edwards, the court found no evidence that the accused owned, possessed, controlled, or had the ability to regulate access to the phone, nor evidence of a subjective expectation of privacy.

The accused therefore lacked standing to challenge the search under s. 8.

The Crown applied for certiorari with mandamus in aid to quash a preliminary inquiry ruling that discharged the accused on a charge of first degree murder while committing one accused on second degree murder and the other on accessory after the fact.

The Crown argued the preliminary inquiry judge exceeded jurisdiction by weighing evidence, preferring defence-favourable inferences, and failing to consider the evidence as a whole under s. 548(1)(b) of the Criminal Code.

The Superior Court found the preliminary inquiry judge improperly assessed competing inferences and failed to recognize that the circumstantial evidence was capable of supporting planning and deliberation.

Evidence including the shooter’s approach, the execution-style killing, the presence of a getaway driver, and post-offence conduct could reasonably support committal for first degree murder.

The discharge order was quashed and the matter remitted with directions to commit both accused for trial on first degree murder.