Court of Appeal for Ontario

Date: June 2, 2017

Docket: C58800

Judges: MacFarland, Pardu and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Monckton Appellant

Counsel:

• Raymond Boggs, for the appellant
• Craig Harper, for the respondent

Heard: February 28, 2017

On appeal from the convictions entered by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury, on November 21, 2012, and from the sentence imposed on February 22, 2013, with reasons reported at 2013 CanLII 87464.

Trotter J.A.:

A. Overview

1Michael Monckton was convicted of second-degree murder for killing Keagan Davis, the 2 ½-year-old son of his girlfriend. He was also convicted of assault causing bodily harm in relation to the injuries Keagan suffered in the weeks or months leading up to his death.

2Keagan was the son of Leigh-Ann Cooper and Dan Davis, who were separated. Keagan lived with his mother. She met the appellant on the Internet in August of 2010 and started dating. The appellant moved in two months later. By the end of November, he was laid off from his job and became Keagan's caregiver during the day, while Ms. Cooper was at work.

3On the morning of January 5, 2010, the appellant messaged Ms. Cooper at work. He told her to call 911 and come home. When she arrived home, Keagan lay lifeless on his bedroom floor. Paramedics were unable to revive him. Keagan was pronounced dead at the hospital. An autopsy revealed that he had suffered a shocking array of serious and painful injuries.

4The appellant denied harming or killing Keagan. He argued that many of Keagan's injuries were inflicted before he came into the picture. The appellant pointed the finger at Ms. Cooper, although he did not testify himself.

5The appellant appeals his convictions, and the 15-year period of parole ineligibility imposed by the trial judge. For the reasons that follow, the appeals are dismissed.

B. The Facts

(1) Introduction

6Keagan was born on May 25, 2007. For the first two years of his life, Keagan and his parents lived with different members of their extended families. Apart from surgery for an undescended testicle, Keagan was healthy. Many family members participated in caring for Keagan and were in a position to observe how Ms. Cooper and Mr. Davis parented him. They observed no problems. Nobody involved in Keagan's care physically disciplined him.

7Ms. Cooper and Mr. Davis ended their relationship in April 2009, but Mr. Davis had access to Keagan on a regular basis. Ms. Cooper found her own apartment in September of 2009, where she lived with Keagan.

(2) The Appellant Enters the Picture

8Ms. Cooper met the appellant in August of 2009. He spent a great deal of time at her apartment. He moved in shortly afterwards. In one of his statements, the appellant told the police he had been living there for about five months.

9In November of 2009, the appellant and Mr. Davis got into an argument on the phone. The appellant apparently said that Keagan was a "retard" and should be dead. Mr. Davis did not mention this utterance until the third time he spoke to the police. The argument between Mr. Davis and the appellant escalated and Mr. Davis was charged with threatening death. As a consequence of his bail conditions, he was not allowed to see Keagan until Christmas day that year.

10The appellant lost his job on November 30, 2009. He remained home and looked after Keagan. Ms. Cooper's mother, who had been assisting with Keagan's care, stopped her daily visits. However, Keagan continued to occasionally sleep at her home.

11Members of the Cooper and Davis families started to notice marks and injuries on Keagan's body in the fall of 2009. Ms. Cooper's sister, Laura, noticed small circular bruises on Keagan's back when she bathed him. Other injuries family members observed included: a "goose egg" and bruise to Keagan's forehead; rug burns to his hip; and yellow bruises to his lower back. Ms. Cooper noticed bruising down the middle of his back. On Christmas Day, Mr. Davis' family noticed bruises to Keagan's back and forehead, and redness on his scalp. They were so concerned that they photographed the injuries. Keagan also complained of pain when Mr. Davis' mother took his hand. The appellant explained away some of Keagan's injuries as the result of a fall.

12In addition to noticing these injuries, family members also testified to a change in Keagan's behaviour in the fall of 2009. He became upset when leaving his grandparents' homes.

13Keagan was sick on and off from December 28, 2009 until the day he died. He experienced flu-like symptoms. Ms. Cooper did not take Keagan to the doctor because she was concerned about the H1N1 virus, although she did seek treatment for herself at a walk-in clinic. She treated Keagan's symptoms with Motrin and Gravol. On one occasion, Keagan was injured in the kitchen. The appellant told Ms. Cooper that Keagan fell off a kitchen chair and vomited. Ms. Cooper found him in a pool of vomit, with a bleeding nose. On January 2, 2010, Keagan had a bruise on his upper back and on the nape of his neck. The appellant said Keagan fell into a wooden chair while playing with another child.

(3) January 5, 2010

14Leigh-Ann Cooper got up at 6:30 a.m. and left for work at 7:30 a.m. Keagan was fine when she left. Ms. Cooper had planned to return home for lunch at about 11:30 a.m. At 11:33 a.m., she received a message from the appellant, telling her to come home quickly and to call 911. When Ms. Cooper arrived home, Keagan was not breathing. The appellant was performing CPR. Ms. Cooper called 911 at 11:40 a.m. The appellant came on the line at one point to say that he had a shower with Keagan and put underwear on him, put him in his room, and when he returned, Keagan was lying on the floor. During the call, the operator encouraged the appellant and Ms. Cooper to perform CPR.

15The police soon arrived at the scene. Keagan appeared lifeless and was without vital signs. The appellant was crouched down beside Keagan, but not performing CPR. Referring to the ambulance, he yelled, "Where the fuck are they?" A similar utterance can be heard on the 911 recording, during which the appellant said he was performing CPR.

16When the paramedics arrived, Keagan was taken to the ambulance, where he could be treated more effectively. All of the paramedics testified that Keagan was wearing a diaper, not underwear, as the appellant said. Keagan was rushed to the hospital where he was pronounced dead.

(4) The Appellant's Statements

(a) At the Scene

17The appellant spoke to officers at the scene. Both he and Ms. Cooper were very emotional. The appellant appeared to be in shock. He cried at one point.

18The appellant said that he and Keagan slept-in that morning. When they woke up, the appellant said that he took Keagan into the shower. After the shower, Keagan had a bowel movement in the toilet. Officers on the scene noted solid feces in the shower stall, something the appellant failed to mention to police at the scene.

19The appellant told the police that Keagan had been complaining of a sore stomach and was sick for two weeks, with diarrhea, vomiting, fever and trouble breathing. The appellant said he found Keagan in distress on the bed, where he had left him briefly to get dressed. He picked Keagan up and put him on the floor. This contradicted his statement to the 911 operator that he found Keagan on the floor.

(b) Later That Day

20After being told that Keagan was dead, Mr. Davis and the appellant left the hospital in hysterics. Mr. Davis was persuaded to return. The appellant did not. That evening, the appellant spoke to Ms. Cooper and her father on the phone. Mr. Cooper asked the appellant to come home. The appellant said: "But I won't see my kids again." Mr. Cooper asked, "If you didn't do anything wrong, why wouldn't you be able to see your kids?" The appellant said nothing.

(c) The Police Interviews

21On January 7, 2010, the appellant voluntarily went to the police station. Near the end of the interview, he was arrested for murder. He exercised his right to counsel. The interview continued shortly afterwards, but was terminated when the appellant experienced medical difficulties.[1] He was interviewed again on January 8, 2010.

22In the first interview, the appellant denied harming Keagan. He said that he did not wake up until roughly 11 a.m. However, Ms. Cooper's cell phone records revealed communication with the appellant at 8:12 a.m. and 9:47 a.m. Keagan was not feeling well and wanted the appellant to come into the shower with him. The appellant again failed to mention the feces in the shower. He dressed Keagan in underwear and put him on the bed. It was only later that the appellant moved Keagan to the floor when he realized that he was in distress. The appellant had no idea why Keagan went into distress that morning.

23The appellant explained that he did not return to the hospital after learning Keagan had died because he was afraid to face Ms. Cooper and her family after failing to save Keagan.

24The appellant continued to deny any wrongdoing in his second interview. For the first time, he mentioned that Keagan defecated in the shower. He admitted telling family members he wanted to kill himself, but only because he wanted to trade places with Keagan.

(5) The Medical Evidence

25Keagan suffered many injuries, at different times. It was important to determine when these injuries were caused in order to identify who caused them.

26Dr. Michael Pollanen, a forensic pathologist, identified the cause of death as "blunt abdominal trauma in a child with head injury and multiple other injuries of varying age."

27Keagan suffered significant injuries to his mesentery—the fan of blood vessels, fat and connective tissue that surrounds the intestines and attaches them to the abdominal wall. Dr. Pollanen identified three sets of mesenteric injuries—recent, healing and healed. The recent mesenteric injuries involved six lacerations, which resulted in bleeding in Keagan's abdominal cavity. This injury could have been caused by one significant blow, within minutes to hours before death. The healing injuries occurred within days or weeks prior to death. The healed injuries within several weeks (perhaps months) before his death.

28In addition to the recent mesenteric injury, Keagan suffered other recent injuries, including:

• Bleeding within the abdominal wall;
• Bleeding in and around the duodenum;
• Four contusions underneath the skin at the top of the head, back of the head, right temple and left jawline. These were likely caused by the head coming into contact with broad, flat surfaces, each representing a separate contact point;
• Bleeding in the left shoulder muscle, resulting from direct contact or forceful movement of the arm;
• Bleeding under the skin of the tailbone; and
• Two bruises on the penis, caused by pinching or twisting.

29Dr. Pollanen found dozens of other injuries to this child. Keagan's brain reflected changes from either trauma or lack of oxygen. He had three distinct bruises on his face, and suffered a laceration to the upper lip and frenulum, likely from punching, slapping or the forcing of an object into his mouth.

30Keagan had six broken ribs. These fractures were either healed or healing. With the exception of a re-fracture of one of the ribs, Dr. Pollanen excluded CPR as the cause of these injuries, which would have required considerable force, within weeks of Keagan's death.

31Keagan had compression fractures of three vertebrae, with disc bleeding, caused by significant force, either to the top of his head or to his buttocks.

32Dr. Pollanen identified 18 small, circular bruises to the exterior of the abdomen, consistent with punching or heavy prodding, likely occurring within 3 to 5 days of death. He also found 13 bruises on Keagan's back, including the neck, shoulder blades and spinal column.

33Keagan suffered an abrasion or friction injury to his scrotum, which was covered by a scab.

34Keagan had four bruises on his upper arms, all caused by blunt force. Significantly, the left forearm bones (both the ulna and the radius) had been fractured. A significant amount of force would have been required to cause these injuries, which likely occurred within weeks of his death. Of similar age were symmetrical fractures of both of his ring fingers, also caused within weeks of his death.

35Lastly, Keagan suffered 14 blunt force injuries to his lower limbs.

36Dr. Pollanen testified that Keagan's injuries were indicative of child abuse. He rejected CPR as the cause of Keagan's death. He explained that there was no demonstrable, non-traumatic cause for his sudden collapse or death.

37Dr. Pollanen was challenged on his estimates of the timing of Keagan's injuries. He agreed that Keagan's recent injuries could have been 18 to 24 hours old. However, Dr. Pollanen was generally of the view that Keagan's recent abdominal injuries were inflicted within minutes to hours of death, and certainly "around the time of death."

38Similarly, with respect to Keagan's fractures, Dr. Pollanen agreed that it could take up to 16 weeks for secondary calluses to form around the healing fractures. However, he qualified this answer in the following way: "But again, if we are going to talk about specific weeks, then if you want a more precise answer, I would have to check the medical literature on that."

39The Crown also relied on the evidence of Dr. Michelle Shouldice, an expert in paediatrics and the evaluation of suspected injuries in children. Dr. Shouldice testified that the bruising found over Keagan's body was the result of multiple applications of force. She expected that a child with Keagan's injuries would be in a lot of discomfort and would cry when the injuries occurred. Discomfort would continue for some time.

40Dr. Shouldice testified that Keagan's abdominal injuries were significant and not typical of common toddler falls. A significant amount of force would be required to crush tissues within the abdomen. She explained that common symptoms of this type of injury in a child include vomiting, loss of appetite and changes in bowel habits. Dr. Shouldice said that children with abdominal trauma "just generally don't appear well." She testified that CPR could have caused the recent damage to Keagan's mesentery, but ruled out CPR as a cause of his older mesentery injuries. She deferred to Dr. Pollanen on the timing of Keagan's mesentery injuries.

41With respect to the healing process of the forearm, Dr. Shouldice testified that it could take up to six months, especially if the arm was not immobilized. However, she again deferred to Dr. Pollanen on the issue of timing.

C. The Appeal Against Conviction

42The appellant raises a number of grounds of appeal that relate to the timing of Keagan's injuries and whether the appellant had the opportunity to cause them. It was the appellant's position at trial, and on appeal, that some of Keagan's older injuries were inflicted before he ever met Keagan. Because the Crown alleged that one person caused all of Keagan's injuries, the appellant could not be found guilty of inflicting any of them, including those that were fatal. The appellant did not testify himself, but through his counsel's cross-examinations and closing address to the jury, he suggested that Ms. Cooper was responsible for her son's death.

(1) Instructions to the Jury to Consider the Evidence as a Whole

43The appellant argues that the trial judge failed to sufficiently instruct the jury to consider the evidence against the appellant as a whole. This error was compounded, the appellant contends, by the trial judge's answer to a question concerning the aggravated assault charge.

44This ground of appeal relates to the timing of Keagan's injuries, especially in light of how the indictment was framed, and then amended just before the trial judge's final instructions to the jury. This requires further elaboration.

(a) The Indictment and Its Amendment

45The appellant was originally charged with three offences, with the following time frames: (1) second-degree murder (on January 5, 2010); (2) aggravated assault (endangering life) (between October 1, 2009 and January 5, 2010); and (3) assault causing bodily harm (between October 1, 2009 and January 5, 2010). January 5, 2010 was common to all three counts.

46During an extensive Pre-Charge Conference, the trial judge expressed concern about the overlapping date of January 5, 2010 and the jury's deliberations on the aggravated assault count. Observing that there was no medical evidence that established that the healed and healing mesenteric injuries endangered Keagan's life, the trial judge was concerned that, if the jury found the appellant was guilty of murder, it might automatically conclude that the appellant also endangered Keagan's life by inflicting similar injuries on an earlier occasion.

47The trial judge was ultimately satisfied that medical evidence existed from which the jury could infer that Keagan suffered life-endangering injuries before January 5, 2010. However, to focus the jury's attention, the trial judge proposed that the time frame of the aggravated assault and assault causing bodily harm counts be amended to end on January 4th, the day before Keagan died, rather than on January 5th.

48In his factum, the appellant argues that the trial judge erred in amending the indictment in this manner. However, counsel for the appellant explicitly consented to this amendment. Nevertheless, the appellant's main argument on appeal is that, without a proper instruction that the jury must consider all of the evidence when considering each of the three counts, the jury may have considered the evidence as it related to Keagan's fatal injuries without ever considering the potential timing of some of his earlier injuries, and whether they occurred before the appellant entered the picture.

(b) The Trial Judge's Instructions

49In his final instructions to the jury, the trial judge explained the recent amendment to the indictment:

You will see the same date of January the 4th on the assault causing bodily harm count. Again, this was done to keep your deliberations focused. In other words, on these two counts, you will be dealing with the evidence of the healed and healing injuries.

On the charge of aggravated assault, in accordance with the Crown's position, I suggest you focus on the healed and healing injuries sustained to the mesentery.

50Seven times throughout the rest of his charge, the trial judge stressed that the jury must consider all of the evidence in deciding whether the appellant was guilty of any one of the three counts. Counsel for the appellant had no objections to the trial judge's charge to the jury. He did not identify the inadequacy now raised on appeal.

(c) The Jury's Questions

51On the second day of deliberations, the jury asked the following two questions at the same time:

We, the jury, respectfully request clarification on the following two questions:

1. Does the charge of aggravated assault specifically apply to the healing and healed mesentery injuries or the sum of all injuries?

2. Could you please clarify the definition of state of mind as it pertains to the decision tree for second degree murder?

52In the colloquy that followed, the Crown and the defence agreed that the aggravated assault charge related to the healed and healing mesentery injuries, but not the sum of all of Keagan's injuries. Defence counsel advised the trial judge: "I would agree that it was healed and the healing." The trial judge answered the jury's question accordingly.

53Following this instruction, the appellant argued that the trial judge failed to provide the jury with an instruction about circumstantial evidence and reasonable doubt, in accordance with R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42. Even though the jury had already received this instruction much earlier in the main charge, the trial judge obliged and gave this instruction again. This repetition was the last instruction the jury heard before delivering its verdicts.

(d) The Trial Judge Did Not Err in His Approach

54In all of the circumstances, given the live issues at trial, and the positions of counsel, I can find no error in the manner in which the trial judge instructed the jury on this issue, or in how he answered the jury's question.

55Looked at in their entirety, the trial judge's instructions to the jury were comprehensive, fair and focused on the salient issues at trial: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 33 and 35; and R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 28-31. It is not determinative that defence counsel failed to object to matters now complained of on appeal. However, it is an important consideration in assessing whether the jury was properly and fairly instructed: Jacquard, at paras. 37-38; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, at para. 89; and R. v. Chandrakumar, 2007 ONCA 798, 231 O.A.C. 30, at para. 36.

56The trial judge properly instructed the jury on all critical issues with the full agreement of experienced trial counsel. The amendment to the indictment and the trial judge's final instructions helped the jury apply the complex medical evidence to the temporal issues framed by defence counsel. The manner in which the jury was charged did not undermine the appellant's position that, based on the theory of a single perpetrator of all of Keagan's injuries, he had to be excluded because of the potential timing of the earlier injuries, which occurred at a time when the appellant could not have been the perpetrator.

57I would not give effect to this ground of appeal.

(2) Was the Murder Conviction Unreasonable?

58The appellant argues that the second-degree murder verdict is unreasonable and unsupported by the evidence. This argument has two components: (1) there was no evidence upon which the jury could find that the appellant caused the various injuries Keagan sustained; and (2) there was no evidence from which the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite mens rea for murder. I deal with each in turn.

(a) The Appellant as Perpetrator

59As with the previous ground of appeal, the appellant focuses on aspects of the evidence that suggest potential timelines for Keagan's injuries that pre-dated the appellant's involvement in his life.

60There was evidence favourable to the appellant on this issue. This emerged through the cross-examinations of Dr. Pollanen and Dr. Shouldice. Counsel for the appellant attempted to leverage the qualifications made in their evidence about the timing of Keagan's injuries to create reasonable doubt about whether the appellant was the perpetrator. However, this potential for reasonable doubt does not equate with an unreasonable verdict.

61It was ultimately for the jury to assess the weight of this medical evidence, in the context of all the evidence, against the standard of proof beyond a reasonable doubt. On appeal, when considering the reasonableness of a verdict, the focus is different. As Tulloch J.A. wrote in R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267, at para. 34:

The issue is not whether the reviewing court would have convicted the appellant, but whether the evidence, viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt. The reviewing court must ask itself "whether the jury's verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury" (emphasis in original): R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 2, 26-28. [Emphasis in original.]

62Applying the same approach to this case, the verdict was not unreasonable or lacking support in the evidence. The timing of Keagan's injuries was not the exclusive domain of expert evidence. This issue had to be determined in light of all of the evidence, including the following:

• The appellant had sole care of Keagan on the morning he died; his mother was at work;
• The appellant did not call 911 when Keagan was in distress;
• The appellant excluded Ms. Cooper as a suspect in his pre-trial statements, although this position changed by the time of trial;
• The appellant's post-offence conduct (i.e., his suicidal thoughts and his statement to Mr. Cooper that he would not see his children again) suggested a belief that he was responsible for Keagan's death;
• The appellant made contradictory pre-trial statements, and his phone records suggest that he did not sleep in until 11 a.m., as he told everyone he did; and
• The appellant was the primary caregiver of Keagan in the weeks leading up to his death, when Keagan sustained multiple severe injuries.

63Turning to the expert evidence, the cross-examination of Dr. Pollanen and Dr. Shouldice elicited answers that raised the possibility that some of Keagan's injuries were caused before the appellant entered Keagan's life; however, these answers must be viewed in context.

64Dr. Pollanen specifically described the limitations inherent in providing timelines for injuries. As he explained:

And then what is frequently the case is that tribunals such as this want to know, "What does that mean in time? Can you give us hours, days, weeks, months, years?" To some extent we can do that but we have to recognize the limits on that. So in other words, I know of no method that would allow a pathologist to determine discreetly, you know, the precise age of a wound but we can give some general guidelines and so as we move through the injuries that we have here, we can give general guidelines about the duration of those injuries.

65This caution was important in the evaluation of Keagan's injuries. In his examination-in-chief, Dr. Pollanen estimated that the healed mesenteric injuries were weeks to months old. Asked in cross-examination whether he could rule out the possibility of these injuries being 12 months old, Dr. Pollanen answered:

Could it be 12 months? My impression wasn't – it wasn't that it was that old. I guess the question is could I exclude that?

I don't think I could totally exclude – I don't think you could exclude – if you had an area of scar tissue that was relatively stable, healed for months, could you differentiate it from an area of scar tissue that you knew was a year old? Probably not.

66A fair reading of Dr. Pollanen's evidence as a whole is not that he accepted of 12 months as his best professional judgment of the age of the healed mesenteric injuries; he simply could not exclude this theoretical time frame. He maintained his original opinion that these injuries were weeks to months old. The same observations are applicable to his time-estimates of Keagan's other injuries, including his fractures.

67In all of the circumstances, there was evidence to support the jury's conclusion that the appellant caused Keagan's fatal injuries. Furthermore, there was an evidentiary basis from which the jury could reasonably infer that all of the injuries suffered by Keagan were at the hands of the appellant.

(b) The Intent for Murder

68The appellant further argues that, if the appellant was the perpetrator of Keagan's fatal injuries, there was no evidence that he intended to kill him. The appellant submits on appeal, as he did before the jury, that, at its highest, the evidence only established liability for manslaughter, not murder. I disagree.

69The trial judge instructed the jury on both aspects of the requisite mens rea for murder in section 229(a) of the Criminal Code, which provides:

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

The trial judge expanded his instructions on the application of this provision when the jury asked for "clarification" in its question, discussed above.

70With the exception of post-offence conduct, the evidence detailed in paragraph 62, above, is capable of supporting the inference that, when the appellant assaulted Keagan on January 5, 2010, he intended to kill him or, more probably, intended to cause Keagan bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not. Of great significance on this issue is the degree of force required to cause Keagan's fatal injuries. Weighing only 32 pounds, he suffered six lacerations to his mesentery. A jury could reasonably conclude that an adult male who inflicted this type of harm on such a small child did so with one of the intents in s. 229(a) of the Criminal Code.

71As I have already noted, the post-offence conduct evidence relevant in identifying the appellant as the perpetrator of Keagan's injuries was not probative on the issue of intent: see R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129. The trial judge was careful to remove it from the jury's consideration on this issue.

72The appellant points to certain features of the evidence that he contends undermine the presence of the requisite mens rea. First, the appellant argues that his behaviour after Keagan fell ill on January 5, 2010 was inconsistent with an intention to kill Keagan. He points to his life-saving efforts and his obvious signs of distress when EMS personnel arrived at the house, and later at the hospital after Keagan had died.

73It was open to the jury to consider these items of evidence in deciding whether one of the intents for murder in s. 229(a) had been proved beyond a reasonable doubt. However, they may have had minimal value. The evidence concerning life-saving efforts was equivocal. Ms. Cooper testified that the appellant performed CPR on Keagan. However, officers on the scene maintained that they did not see the appellant actively engaged in CPR. It must also be remembered that the appellant did not call 911. He messaged Ms. Cooper instead.

74More importantly, the appellant's subsequent actions and emotional presentation were not necessarily inconsistent with someone who, at the point in time when the fatal assault occurred, intended to kill Keagan or cause the serious type of bodily harm contemplated by s. 229(a)(ii) of the Code.

75The jury was instructed that, to find the appellant guilty of second-degree murder, one of the two mental states for murder must be present at the time he inflicted harm on Keagan. In R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, also a case of second-degree murder, Cory J. said at p. 157: "There is, then, the classic rule that at some point the actus reus and the mens rea or intent must coincide." See also R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 35; and Don Stuart, Canadian Criminal Law – A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 399-401. This rule, often referred to as the simultaneous principle, does not require a lingering murderous intent after this point of convergence. If the appellant's acts and mind came together as contemplated by this principle, his subsequent shock, horror or regret, combined with apparent efforts to undo what he had just done, were of no moment.

76The appellant further argues that, assuming the prosecution theory that a single perpetrator inflicted all Keagan's injuries, the fact that the healed and healing mesenteric injuries did not result in death suggests a lack of intent on the appellant's part in inflicting the subsequent, fatal injuries. This argument was made to the jury during defence counsel's closing address. By its verdict, the jury rejected this line of reasoning. This rejection does not make the jury's verdict unreasonable.

77Moreover, this argument is undermined by Keagan's precise cause of death. It was not restricted to the recent mesentery injury; Dr. Pollanen described it as "blunt abdominal trauma in a child with head injury and multiple other injuries of varying age."

78The verdict of guilty on the count of second-degree murder was reasonable and supported by the evidence.

(3) Inconsistent Verdicts

79The appellant was convicted of second-degree murder and assault causing bodily harm; he was acquitted of aggravated assault. He argues that the jury's verdict of guilty on the murder count is inconsistent with the acquittal on the aggravated assault count. I disagree—all three verdicts are reconcilable based on their different conceptual elements, the nature of the evidence that applied to each of them and the significant temporal divide caused by the amendment of the indictment.

80In R. v. Catton, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 21, Doherty J.A. provided the following account of the law concerning inconsistent verdicts:

Inconsistent verdicts are a subspecies of unreasonable verdicts: R. v. Pittiman, 2006 SCC 9 (CanLII), [2006] 1 S.C.R. 381 at para. 6. If a trier of fact returns a conviction on one count (or against one accused), and an acquittal on another count (or against a co-accused), the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at 56; Pittiman, at paras. 7-8.

81Assessing the consistency of verdicts engages a consideration of the elements of the offences in question, temporal considerations, and the nature and quality of the evidence relating to specific counts. As Charron J. said in R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 8:

…in the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses.

82While the appellant seeks to impugn his conviction for murder by attempting to show its inconsistency with his acquittal for aggravated assault, it is important to consider the verdicts on all three counts that were before the jury. As a whole, the three verdicts that the jury reached are readily explainable.

83I start with the nature of the offences—murder (s. 229(a)), aggravated assault (s. 268), and assault causing bodily harm (s. 267(b)). Each has different elements.

84The key elements of murder have already been described above in terms of the mental element. Of course, in addition to the mens rea requirements, an essential component of murder is causation: the force an accused inflicts must be a significant contributing cause of death.

85To be found guilty of aggravated assault under s. 268, an accused person must commit an assault that wounds, maims, disfigures or endangers the life of another person. In this case, the charge was particularized to allege endangerment of life. Accordingly, given that the Crown relied upon Keagan's earlier (healed and healing) mesenteric injuries to prove this offence, it was required to prove that Keagan's life was endangered by the infliction of this specific harm, and not the harm inflicted on January 5, 2010.

86Assault causing bodily harm in s. 267(b) is distinguished from aggravated assault by virtue of the type of harm caused. Section 267(b) must be read in conjunction with s. 2 of the Criminal Code, a provision of general application, which defines "bodily harm" as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."

87These elemental differences provide a complete explanation for the conviction for assault causing bodily harm and the acquittal on aggravated assault. The jury could have been satisfied that the appellant inflicted the kind of harm that amounted to "bodily harm" within the timeframe of these counts on the indictment (October 1, 2009 to January 4, 2010), while at the same time entertaining a reasonable doubt about whether Keagan's life was actually endangered by that same bodily harm.

88The different verdicts on the murder and aggravated assault charges are explained by the different evidentiary foundations applicable to both offences. Counsel agreed that the aggravated assault allegation related only to the healed and healing mesenteric injuries. To ensure the jury did not convict the appellant for both murder and aggravated assault for the same act—the recent mesenteric injuries—the trial judge amended the indictment to make the murder and aggravated assault timeframes mutually exclusive. The jury was instructed that it had to determine the appellant's liability on the aggravated assault charge without consideration of the fatal blows suffered by Keagan on January 5, 2010.

89As both defence counsel and the trial judge pointed out, the healed and healing mesenteric injuries provided a weak evidentiary basis for aggravated assault. During the Pre-Charge Conference, the trial judge initially observed that there was no evidence that Keagan's life was endangered by the previous injuries to his mesentery. Defence Counsel agreed: "There is no evidence that those injuries alone could have put his life at risk." Referring to Dr. Pollanen's evidence concerning mesenteric injuries, counsel said: "this injury alone—even on the doctor's evidence as to the cause of death, this injury alone may not have caused the death. So, prior injuries of a similar nature, there's no evidence that they put his life at risk…". It was entirely possible that the jury was satisfied that the appellant's conduct on January 5 amounted to murder, but that the evidence of healed and healing mesenteric injuries did not make out the aggravated assault charge.

90Lastly, while the mesenteric injuries were critical to the aggravated assault charge, the cause of Keagan's death was described in broader terms, involving more than just the recent injuries to his mesentery. Again, the cause of death was described as "blunt abdominal trauma in a child with head injury and multiple other injuries of varying age."

91In all of the circumstances, the verdicts are reconcilable. Accordingly, I would not give effect to this ground of appeal.

D. The Appeal Against Sentence

92The appellant was sentenced to a mandatory term of life imprisonment. The trial judge imposed a period of 15 years before the appellant is eligible to apply for parole. The appellant submits that the period of parole ineligibility was too harsh. In support of this position, he applies to adduce fresh evidence of his Aboriginal status, a matter that was not disclosed to his counsel at trial. Consequently, it was not brought to the attention of the trial judge on sentencing.

(1) The Appellant's Background

93At the time of the offences, the appellant was 26 years old. He was 30 when he was sentenced.

94The appellant has two children from a previous relationship. He also has a criminal record, dating back to late 2008, containing convictions for criminal harassment, breach of recognizance, mischief and breach of probation. These offences all related to the fallout from two of the appellant's previous relationships. When he killed Keagan, the appellant was bound by three probation orders. Moreover, on November 19, 2009, the appellant was registered in the Child Abuse Registry with the Ontario Ministry of Community and Social Services. This related to his caregiving role in the life of another child. No criminal charges arose from the investigation that resulted in the appellant's registration.

95In his Pre-Sentence Report ("PSR"), the appellant reported that he enjoyed a close relationship with both of his parents, as well his younger sister. The appellant has struggled with alcohol in the past and no longer drinks. He reported using MDMA and marijuana, up until a few days before his arrest.

(2) The Jury's Recommendations

96Under s. 745.2 of the Criminal Code, the jury made recommendations about the appellant's parole eligibility. Two jurors made no recommendation; four jurors recommended that parole not be available for 15 years; and six jurors recommended that the appellant serve 25 years before becoming parole-eligible.

(3) The Trial Judge's Reasons

97In written Reasons for Sentence, the trial judge addressed the factors for determining parole ineligibility set out in s. 745.4—the character of the offender; the nature of the offence and the circumstances surrounding its commission; and the recommendations of the jury. Based on these factors, the Crown at trial submitted that a 15-year period of parole ineligibility was appropriate, whereas the defence requested the minimum, 10 years.

98After reviewing the leading decision of the Supreme Court of Canada in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, the trial judge referred to the appellant's "high moral culpability" and the "horrific nature of Keagan's death…compounded by the litany of other injuries Keagan sustained in the weeks prior to death," and determined that the minimum period of parole ineligibility was not appropriate. Observing that "the senseless and brutal murder of a defenceless child in one's care is an egregious breach of trust," the trial judge set the period of parole ineligibility at 15 years. He imposed a five-year concurrent sentence for the assault causing bodily harm conviction.

(4) The "Fresh" Evidence

99As I have already noted above, the appellant seeks to rely upon his Aboriginal status on his appeal from sentence. This was not brought to the attention of his trial counsel, nor the trial judge. The appellant did not raise the issue with the author of the PSR.

100The appellant did not make an application to adduce fresh evidence on the sentence appeal under ss. 683 and 687 of the Criminal Code, as he should have done. Instead, the appellant simply included in his Appeal Book an affidavit from his father, Harvey Monckton.

101In this affidavit, Mr. Monckton swears that, "I am a Native Canadian and have been for over 30 years…I am from the 6 Tribes reserves [and] my Native Tribe is called Oneida." He further states that his other two children "[have] been Native Status for over 2 years" and that the appellant is also "Native by virtue of being my son," and is in the process of "getting his Native Status." Mr. Monckton also swears that that the appellant wishes to learn "more and more" about his heritage and has become involved in Aboriginal programing while incarcerated.

102Harvey Monckton's affidavit stands alone. There is nothing from the appellant that sheds light on his Aboriginal status and how it has factored in his life and his present circumstances.

103In his Amended Supplementary Notice of Appeal, the appellant requests that, on the basis of Harvey Monckton's affidavit, he should receive the minimum period of parole ineligibility. At the hearing of the appeal, counsel for the appellant requested that his sentencing be remitted to the trial judge to be determined in accordance with s. 718.2(e) of the Criminal Code.

104Section 687 of the Code sets out the powers of an appellate court on a sentence appeal:

687 (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

105This provision provides appellate courts with two options—to impose the sentence that it believes ought to have been imposed; or to dismiss the appeal outright. Unlike appeals from dangerous offender proceedings (s. 759(3)(a)(ii)), on appeals under s. 687 there is no third option to remit the matter to the trial judge, even where an appellant raises his aboriginal status for the first time on appeal: see R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 34, at para. 60; and R. v. Pelletier (1989), 1989 CanLII 981 (QC CA), 52 C.C.C. (3d) 340 (Que. C.A.), at pp. 346-348. Generally, it will be inefficient to remit a case for re-sentencing because the new sentence that is imposed may itself be the subject of an appeal, re-engaging the appellate court to consider the matter again.

106Returning to Harvey Monckton's affidavit, Mr. Harper for the Crown, quite fairly, does not stand on formal procedure to strenuously resist this court considering the material placed before us. Instead, he submits that, because of its vague and incomplete nature, it would not have made any difference to the sentence that was imposed at trial.

107The well-known criteria for the admission of fresh evidence, traceable to R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, apply in the sentencing context. However, appellate courts are more flexible with the sources and types of evidence they are willing to receive in sentence appeals: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 16-21; and R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 13-15.

108In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, Cromwell J. held that the admission of fresh evidence on sentence appeals must be flexible and responsive to the innumerable situations that present themselves to appellate courts. As he concluded at para. 31:

At the level of principle, the approach set out in Lévesque and Angelillo strikes the balance between the competing values and, when applied thoughtfully to the particular circumstances before the court, provides sufficient flexibility to ensure that the appellate process is both responsive to the demands of justice and respectful of the proper limits of appellate review.

109The failure of the appellant to inform his counsel of his Aboriginal heritage remains a mystery. Nevertheless, given the importance of the values embodied in s. 718.2(e) of the Criminal Code, as recognized in many cases, most notably R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this is an appropriate case to admit the fresh evidence and to consider it in reviewing the fitness of the sentence imposed.

(5) The Fitness of the Sentence

110The trial judge addressed the factors set out in s. 754.4 of the Criminal Code. Understandably, the gravity of the offences played a dominant role in his analysis, leading to the great weight being attributed to the principle of denunciation. The trial judge correctly identified the appellant's egregious breach of trust, as recognized by s. 718.2(a)(iii), as a serious aggravating factor. The period of parole eligibility was in accordance with previous decisions of this province dealing with the murder of young children: see R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused, [2010] S.C.C.A. No. 179; R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal refused, [2011] S.C.C.A. No. 455; R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174; R. v. Olsen (1999), 1999 CanLII 1541 (ON CA), 131 C.C.C. (3d) 355 (Ont. C.A.); R. v. Biddersingh, 2016 ONSC 5663; and R. v. Whalen, 2014 ONSC 5481.

111Keagan was murdered when he was 2 ½ years old. The last few months of this little boy's life must have been utterly miserable. He endured an existence marked by extreme pain, one that he could not possibly understand, nor prevent. By its verdicts, the jury found that the appellant was responsible for the shocking abuse of this child, resulting in multiple fractures, dozens of other injuries and, ultimately, death.

112The jurors' recommendations, by and large, reflect an elevated level of moral culpability on the part of the appellant. This was in line with the trial judge's assessment of the appellant. The circumstances of this case required a period of parole ineligibility that reflected the need for general deterrence and denunciation. There was little before the trial judge that reflected favourably on the appellant's background or character that would offset the importance of these goals of sentencing.

113Based on the record that was before him, I can find no error in the trial judge's analysis. Nevertheless, s. 718.2(e) requires a consideration of an offender's Aboriginal status at sentencing: see Kakekagamick, at para. 37; and R. v. Radcliffe, 2017 ONCA 176, at para. 62. In light of the fresh evidence about the appellant's Aboriginal heritage, this is an appropriate case to reassess the fitness of his sentence. However, I am not persuaded that the appellant's Aboriginal status should affect the result.

114The problem lies in the vagueness of the information concerning the appellant's attitude towards his Aboriginal status. The court was merely provided with general information from the appellant's father about his son's interest in his heritage.

115Of course, the appellant is not required to draw a straight line between his Aboriginal roots and the offences for which he is being sentenced: see Ipeelee, at paras. 82-83; and R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 685, at paras. 21-22. However, more is required than the bare assertion of an offender's Aboriginal status.

116In Radcliffe, this court addressed the failure of a sentencing judge to order a Gladue Report in the context of a dangerous offender proceeding. Writing for the court, Watt J.A. described the proper approach to sentencing Aboriginal offenders (at paras. 52-55):

It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:

i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and

ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.

See R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence. [Emphasis in original.]

117These observations are applicable to the present case. In the materials placed before us, there is no information from the appellant, or about the appellant, that lifts his life circumstances and Aboriginal status from the general to the specific. This new information does not impact on the sentence that was imposed. The sentence imposed was fit.

E. Disposition

118The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

Released:

"GTT" "G.T. Trotter J.A."

"JUN -2 2017" "I agree J. MacFarland J.A."

"I agree G. Pardu J.A."

1The trial judge ruled this part of the interview inadmissible due to the infringement of the appellant's right to silence under s. 7 of the Charter.