WARNING

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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.W., 2016 ONCA 96

DATE: 20160202

DOCKET: C59172

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.W.

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Joanne Stuart, for the respondent

Heard: January 22, 2016

On appeal from the conviction entered by Justice Jennifer Blishen of the Superior Court of Justice, sitting without a jury, on October 11, 2013.

ENDORSEMENT

1The appellant appeals his conviction on two counts of assault causing bodily harm in relation to his two-month-old infant. The infant suffered 12 rib fractures. The evidence was that the fractures were incurred on two separate occasions during the course of a hospital stay at the Children’s Hospital of Eastern Ontario (“CHEO”).

2The appellant submits that the verdict on the first count was unreasonable or, in the alternative, the trial judge failed to properly apply the principles in R. v. W. (D.), [1991] 1 S.C.R. 742. With respect to the second count, the appellant submits that the trial judge erred in her application of mens rea for assault causing bodily harm and misapplied the test for implied consent in the context of a parent-child relationship.

3We disagree for the following reasons.

The First Conviction

4It is our view that the verdict in relation to the first set of fractures is reasonable. The scope of appellate review for unreasonable verdict is narrow. To determine the reasonableness of the verdict this court must decide, on the evidence as a whole, whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 161-163.

5A trier of fact can accept some, none, or all of what a witness says. We see no error in the trial judge’s factual findings in this case.

6First, she determined that the factures occurred sometime between January 25 and January 30, 2011. This conclusion was based on the expert evidence and the interpretation of the x-ray results.

7Given the fact that the infant suffered a left anterior rib fracture and a right posterior rib fracture, and in light of the fact that there was no history of impact or accident, the trial judge accepted the expert evidence as to the potential causes of the injuries. The expert evidence supported that the fractures were non-accidental compression fractures from squeezing the front and back of the child’s ribcage.

8The trial judge also considered the appellant’s evidence and his admission that he grabbed the infant hard around the ribs in an effort to prevent a fall and that this might have caused fractures. The way the appellant described this fall was inconsistent with the expert evidence on the nature, location, and likely causes of the injuries. The trial judge therefore found the appellant’s story to not be credible.

9The injuries were localized to the ribcage, just under the infant’s armpits. The expert evidence was corroborated by the observations of nurse Munro, who saw the appellant holding the baby under his armpits. As pointed out by the Crown, the trial judge was entitled to consider all of the evidence, including the observations by the two nurses of instances where the infant screamed out uncharacteristically. We agree that she was entitled to accept how the nurses’ professional experience informed their observations.

10In all the circumstances, based on the evidence, the trial judge was entitled to find that the appellant had caused the fractures to his son, and in our view, her factual findings are reasonable and entitled to deference.

11The appellant also submits that the trial judge erred in her application of the reasonable doubt standard pursuant to W. (D.). We do not agree. While the trial judge did not recite the test as articulated in W. (D.), she did consider all of the evidence and found that the appellant’s innocent explanation for the fractures was not credible or reliable. She rejected the appellant’s evidence in light of competing evidence, considered the Crown’s case, and found his guilt was established beyond a reasonable doubt. Although she did not explicitly refer to the second step of the W. (D.) analysis, a precise articulation of the W. (D.) formula is not required: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7.

12As the Supreme Court of Canada recently reiterated in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 27, when a trial judge rejects an accused’s testimony in a trial by a judge alone, it can generally be concluded that the testimony also failed to raise a reasonable doubt in the trial judge’s mind. In our opinion, that is the situation here.

13The appeal in relation to count one is dismissed.

The Second Conviction

14The trial judge found that the second set of rib fractures occurred between January 30 and February 3, 2011. She also found that they occurred when the appellant squeezed or compressed the baby’s chest in an attempt to revive him during an apneic episode.

15The appellant argues that where consent is at issue, the Crown must prove beyond a reasonable doubt that the appellant intended to cause bodily harm in order to secure a conviction. He relies on R. v. McDonald, 2012 ONCA 379, 284 C.C.C. (3d) 470, and related cases.

16The appellant further submits that the trial judge did not reject his evidence that he was attempting to administer CPR to the child because the child’s life was in danger. He says it is reasonable to imply the child’s consent for the appellant to have applied at least some force to save his life. The appellant submits that consent only becomes a nullity when the Crown proves that the appellant intentionally caused the bodily harm to the child.

17Decisions like McDonald about adults engaged in consensual fights are fundamentally different than those involving children. As this court noted in R. v. A.E. (2000), 146 C.C.C. (3d) 449, at para. 28:

It was noted in Jobidon that policy based limits on consent are almost always the product of a balancing of individual autonomy and some larger societal interest. In the Jobidon situation, public policy vitiates the voluntary decision of the victim to consent. In this case, there is no concern about balancing an infant’s individual autonomy, or its freedom to choose to have force intentionally applied to itself. An infant is uniquely vulnerable to the quality of care and the decisions made on its behalf by its parents. The balancing exercise is therefore a different one.

18The trial judge correctly recognized that even if she did accept the appellant’s evidence that he was attempting to administer CPR, the force applied must not be excessive for the defence of deemed consent to apply: A.E., at para. 37.

19A reasonable person would realize that the force applied to the infant, enough to cause ten anterior and posterior fractures, was excessive and outside the range of normal care even in these urgent circumstances. The defence of implied consent therefore does not arise on the circumstances of this case. In our opinion she did not err in law.

20The appellant further submits that the trial judge was required to come to her own decision as to whether the appellant applied excessive force or acted outside what a reasonable parent would. She simply quoted the expert evidence as opposed to making her own finding.

21The trial judge’s reference to the expert evidence was a shorthand way of accepting the expert evidence. Dr. Putnins explained that while it is possible to fracture ribs while performing CPR, this would occur after prolonged CPR. This is rare and the fractures would be anterior, not posterior, and would be fewer in number. Here the evidence was that the CPR was relatively brief and there were ten fractures. The submission that the expert evidence should be rejected because the studies in question related to persons trained to do CPR, raised for the first time on appeal, finds no support in the evidence.

22Having regard to the whole of the evidence, as the trial judge did, we see no error.

23The appeal on the second count is also dismissed.