W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Melissa Babineau
Appellant
Martin Kerbel, Q.C, for the appellant
Karen Shai and Erin Dann, for the respondent
Heard and released orally: December 1, 2009
On appeal from the conviction entered on February 24, 2006 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1Melissa Babineau appeals her conviction for the second degree murder of a two-year old child, the daughter of the appellant’s partner. She advances two grounds of appeal. First, she submits that the trial judge erred in failing to properly instruct the jury on what they could do with Dr. Rao’s opinion evidence. Second, she submits that the trial judge did not properly instruct the jury on how to handle Ms. Babineau’s post-offence conduct. We do not accept either ground of appeal.
2On the first ground of appeal, the appellant contends that the trial judge should have told the jury that there was no evidence Ms. Babineau applied blunt force to the child. We do not agree with this contention.
3This was a circumstantial evidence case. There was no direct evidence on the precise cause of the child’s death. And the jury would certainly have been aware of the absence of direct evidence that the appellant unlawfully assaulted the child.
4The evidence of Dr. Rao, however, supported a finding of death by blunt force trauma. The trial judge properly left that evidence with the jury. But, in the light of the other pathological evidence, the trial judge also properly told the jury that the preponderance of evidence ruled out blunt force trauma as a cause of death. Overall, in our view, the trial judge dealt with the expert evidence fairly and accurately. This ground of appeal fails.
5On the second ground of appeal, we are satisfied that the trial judge properly instructed the jury on Ms. Babineau’s post-offence conduct. He told the jury that Ms. Babineau’s innocent explanation for her post-offence lies and deception was that she was afraid, especially of the reaction of M.H. and F.V. As we read his charge, the jury would have understood that if it accepted Ms. Babineau’s innocent explanation, her post-offence conduct could not be used as circumstantial evidence of guilt. This ground of appeal, therefore, also fails.
6The conviction appeal is dismissed.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”