Court Information

Case No.: 4860 999 12 216264 00

Ontario Court of Justice Toronto Region

In the Matter of the Provincial Offences Act, R.S.O. 1990

Her Majesty the Queen v. A.G.

Charges: Child and Family Services Act

Reasons for Judgment

Before: His Worship V. Bubrin, Justice of the Peace

Appearances:

• Wendy Ramroop, Provincial Prosecutor
• Danielle Robitaille, Counsel for the Defendant
• A.G. in person, Defendant

Hearing Dates: June 24, 2013; June 25, 2013; September 27, 2013

Judgment: December 19, 2013

Background

1In this case the Defendant, A.G., was charged under the Child and Family Services Act, R.S.O. 1990, Ch. 11, for leaving her child, K.G., five years of age at the time, unattended.

2It is alleged that on June 22, 2012 at approximately 11:45 a.m. on St. Clair Ave. West in the vicinity of Greenside Ave. and Arlington Ave. in the City of Toronto, the Defendant's child ran from the south side of St. Clair Ave. West into a live lane of traffic. When the child reached the passing lane close to the streetcar tracks separating the eastbound and westbound traffic, she was struck and injured by an oncoming eastbound vehicle driven by Ms. Alice Shih. It is alleged that K. was alone and unattended at the time of the accident.

3The child was initially assisted by passers-by, and the paramedics and police arrived on the scene in short order. K. was taken to Sick Children's Hospital by an ambulance in the company of her mother, the Defendant, who appeared on the scene soon after the collision. The child underwent medical examinations and was treated for injuries to her head and upper body.

4Following a police investigation, including an interview with the Defendant after the accident in front of Sick Children's Hospital, the Defendant was charged for leaving her child unattended contrary to s. 79(3) of the Child and Family Services Act.

5S. 79(3) of the Child and Family Services Act and the related subsequent subsection s. 79(4) read as follows:

79(3) No person having charge of a child less than sixteen years of age shall leave the child without making provision for his or her supervision and care that is reasonable in the circumstances.

79(4) Where a person is charged with contravening subsection (3) and the child is less than ten years of age, the onus of establishing that the person made provision for the child's supervision and care was reasonable in the circumstances rests with the person.

6The hearing into this matter was private pursuant to s. 45(4) Child and Family Services Act. There was also a publication ban pursuant to s. 45(7) of the Act, as well as an order prohibiting the identification of the child, who was the subject of these proceedings, and the identification of the person charged, pursuant to ss. 45(8) and (9) respectively of the same Child and Family Services Act.

7The Defendant entered a plea of "not guilty" to the charge.

8The relevant issue for the Court is to determine whether the Defendant had charge of the five-year-old K. on the date and time in question and whether it was she who left the child unattended without making provision for the child's supervision and care?

9The parties agreed that the "reverse onus" addressed in s. 79(4) involving a child less than ten years of age becomes relevant only after the essential elements under s. 79(3) have been established, in this particular case the issues of "having charge of a child" and "leaving the child."

The Trial

10The following witnesses testified at the trial, all called by the Prosecution:

• Ms. Alice Shih, the driver whose vehicle hit the child on St. Clair Ave. W. on June 22, 2012;

• Mr. Lloyd Austin Clarke, one of the first persons at the scene of the accident who provided first aid to the injured child before the paramedics arrived;

• Mr. Mohamed Jabar, a City of Toronto Restaurant Inspector who was passing by on the south side of St. Clair Ave. W. and who witnessed the child bolting across from the south side of the street in the direction of the north side running in the process into the path of Ms. Shih's eastbound vehicle;

• Mr. Jonathan Guider, another passer-by in the area who heard an alarm of a black Honda van go off, then saw a child running around in different directions before darting into traffic and being hit by an eastbound vehicle;

• Police Constable Marion Tammerog, an investigating officer assigned to interview the Defendant at the Sick Children's Hospital where the injured child was being examined and treated. The Defendant's statement to the Officer made part of the Officer's written notes;

• Police Constable Sukhwinder Singh, who attended to investigate the collision and took a statement from Ms. Shih; and

• Police Constable Petra Palm, who arrived on the scene after the collision and provided first aid to the injured child before the paramedics arrived.

I should point out that the Defendant took the stand briefly as well, but that was in relation to the voir dire discussed below, and not in answer to the charge as such.

Voir Dire

11In the course of the testimony of Officer Tammerog, the Crown sought the admission into evidence of the Defendant's statement to the Officer. The Defense rose to argue for the exclusion of the Defendant's statement on the basis that it was taken without any caution with respect to the Defendant's right to silence, the Defendant's right to counsel, and on grounds that the statement was a product of psychological compulsion and therefore not truly voluntary.

12At the end of the voir dire proceedings, the Court ruled in favour of the Defendant and provided its decision for the ruling, summarized here as follows:

The voluntariness of the statement that the Crown sought to be admitted has to be proved beyond a reasonable doubt. It has to be shown that the statement was made without fear of prejudice, to a person in authority, by a person with an operating mind. A statement is admissible whenever it is proved to have been made fairly, in the sense that it was not induced by threats, promises, and I would also add, in circumstances that do not hinder voluntariness specifically and fairness generally.

The circumstances in which A.G.'s statement was made to Officer Marion Tammerog were the following:

• one hour or so after the accident;
• the child was in Emergency at the Sick Children's Hospital;
• the mother, A.G., was said to be pacing outside of the Hospital, smoking, and allegedly in shock;

This does not appear to have been an ideal situation, and no reason was given as to why the statement needed to be taken there and then.

At the same time, there is no evidence that A.G. was incoherent and it appeared that she made a conscious decision to participate in the conversation with the Officer and answer the Officer's questions.

The Court learned that if there was a caution given, as per the Officer's usual practice, no mention of a caution was contained in the Officer's notes. We therefore do not know exactly how it was worded. The Officer testified that she endeavoured to make the caution understandable having detected that A.G. spoke English with an accent and that English was not her first language. Not knowing the exact wording of the caution, the Court was not in a position to be able to determine that it was a full and proper caution.

The Court found that there were other problems surrounding the circumstances in which the statement from A.G. was taken. For example, the Officer's alleged statement to the Defendant that she was investigating the collision may have been misleading in the light of the subsequent charges. Also misleading was the Officer's alleged explanation that A.G.'s statement was necessary for the continuation of the investigation. The word "necessary" suggested to the Court that A.G. understood this to mean, as she indicated in her testimony, that she had no choice but to give her statement.

In the Court's view, framing the interview as an investigation into the collision and characterizing it as necessary for the furtherance of an investigation, raises reasonable doubt that what followed, i.e. A.G.'s statement, was voluntary.

The Court found that the process and circumstances of the interview lacked fairness and as such the voluntariness of the statement had not been proved beyond a reasonable doubt. The Court ruled the Defendant's statement to Officer Marion Tammerog inadmissible.

Motion for a Directed Verdict

13Following the testimony of the seven Crown witnesses, the Defence moved for a directed verdict on the basis that the Prosecution failed to lead any evidence on the contested essential elements of the offence: 1. That the Defendant had charge of her daughter K.; and 2. That the Defendant left the child. None of the witnesses, the argument went, had any idea who had charge of K. in the moments before the child ran out in front of a car and was struck and injured. Also, none of the witnesses saw the Defendant leave the child. Ms. Robitaille admitted that there might have been evidence that the child was unattended, but that that was not what needed to be proved.

14The Prosecution's position was that it was basing its case on circumstantial evidence. In order for the directed verdict to succeed there had to be absent all evidence on the elements that create the offence. Circumstantially, the Prosecution argued, there was more than sufficient evidence to conclude that it was the mother, i.e. the Defendant, who left the child and that she was in charge of the child.

15In its ruling and reasoning to deny the motion, the Court relied on the authority of R. v. Arcuri, 2001 SCC 54 (paragraphs #1 and #21, and also #22, #23 and #29) and summarized the evidence of the witnesses. Here are the main points:

• It is not the Court's role at this point to take a position regarding the credibility, reliability and sufficiency of evidence. The focus needs to be on whether there is some evidence on all the elements of the offence. In the absence of any direct evidence, the question becomes whether the evidence required for a conviction could be inferred from the circumstances?

• As per R. v. Arcuri, this required a limited weighing of the circumstantial evidence to assess whether it is reasonably capable of supporting the inferences the Crown asks the jury [in this case the Court] to draw.

• It was the Court's opinion that the circumstantial evidence of this case supported the finding that some evidence existed on both of the contested essential elements of the offence against the Defendant.

• The four civilian witnesses were consistent in their evidence that at the time of the accident and moments immediately before, the child was alone. A.G. arrived at the scene, apparently from the opposite side of the street, after the child was struck. It appeared that she was not with the child, but close by. Several witnesses saw the Defendant leave with the child in the ambulance.

• One witness saw K. running around on the sidewalk in the vicinity of a parked black Honda van with its sliding door open and its alarm sounding. The ownership of the vehicle was not established, but another woman appears to have retrieved A.G.'s cell phone and purse from it prior to A.G. leaving with K. in an ambulance.

• The Court accepted that the inferences that the Defendant had charge of the child and she had left the child unattended constituted some evidence respecting the two contested essential elements of the offence.

• The motion for a directed verdict was, therefore, denied.

16Following the Court's ruling, the Defence chose not to call any evidence exercising the Defendant's right to silence and to the presumption of innocence.

Proof Beyond a Reasonable Doubt

17In the absence of any evidence from the Defence, the Prosecutor invited the Court to elevate the circumstantial evidence from some evidence on the essential elements of the offence to a proof beyond a reasonable doubt.

18The position of the Defence was that reasonable doubt should arise in the absence of any direct evidence with respect to the question of who had care of the injured child and who had left the child. Ms. Robitaille argued that the circumstantial evidence upon which the Prosecution was relying was based on inferences. In drawing those inferences the question needs to be asked whether there is doubt in the gap of information on which the inferences were founded? Moreover, the argument went, circumstantial evidence can be interpreted in different ways. The presence of another woman with the defendant observed by Officer Palm where the child was struck, and by Officer Tammerog at the Hospital, should lead to a reasonable doubt as to who was in charge and who left the child.

19The legal basis for the argument by the Defence was found in R. v. Starr, 2000 SCC 40, particularly the principle articulated at #229 that "…reasonable doubt is a fundamental component of a fair trial, because a jury might otherwise convict the innocent by finding guilt on the basis of mere probability, rather than on the basis of proof to a near certainty as is required in criminal proceedings."

20In response to the submissions for the Defence, the Prosecution reminded the Court of the standard set in the same Supreme Court of Canada decision in the paragraph below (#230): "… a reasonable doubt … is based upon reason and common sense…; it does not involve proof to an absolute certainty…"

21Upon considering the evidence and the arguments, and upon applying the required legal standard of proof, the Court concludes that the Prosecution falls short of proving the case against the Defendant beyond a reasonable doubt.

22In the particular circumstances of this case, the Court was called upon to wear, as it were, two hats: making a ruling on the hypothetical sufficiency of the circumstantial evidence at one point, and ultimately deciding whether the same evidence meets the higher standard of a proof beyond a reasonable doubt. This is a critical distinction often made in jurisprudence. I find the wording of the explanation found in R. v. Charemski, fitting: "The difference between the judge's function on a motion for a directed verdict and the jury's function at the end of the trial is simply this: the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt." [Emphasis added]

23All six witnesses who attended at the scene of the accident confirmed that the child was alone at the time. Two civilian witnesses, Mr. Jabar and Mr. Guider, testified that they saw the child on the sidewalk alone before she darted onto the street running into the path of Ms. Shih's eastbound vehicle. Mr. Jabar stated that "It looks like she was running to – running across the road to meet someone." Mr. Guider testified that upon hearing an alarm of a vehicle go off, he "…saw this little girl running around in different directions screaming mommy, mommy, mommy" and "…before I got right up to that point she had darted right into traffic and ran past the first lane and in the second lane she got hit by a vehicle that [was] moving east. I saw her fly up in the air and land on the road."

24The witnesses' testimony was generally consistent that the Defendant appeared on the scene only after the child had been struck by Ms. Shih's vehicle. Ms. Shih testified that mom came "after awhile" and at another point she said "within five minutes." Although that length of the estimated time seemed excessive given mere seconds in which the sequence of events unfolded, the Court accepts that when Ms. Shih got out of her car and started asking about the whereabouts of the parents, no one responded. Mr. Clarke, who provided initial first aid, stated that the mother showed up within a "couple of minutes" that she held the child's hand until the paramedics arrived and accompanied the child in the ambulance. Mr. Jabar stated that shortly after the accident when there were already six-eight people around the injured child, he "…saw the mother peeked as if to see what was going on and the child cried out to the mother mommy and that was it."

25Mr. Guider stated in response to the Prosecutor's question whether anyone came forward to claim that they were with the child, he stated that several minutes later a woman appeared halfway across St. Clair walking from the north side to the south side of the street carrying groceries who "looked like she recognized the clothes on the girl." And further on: "Well, she was crossing the street … to get to the other side of the road but as soon as she noticed that she recognized the person on the ground she quickly you know went over like quicker, much quicker walking almost running type thing." In cross-examination, however, Mr. Guider admitted that he only thought that the woman with the groceries crossing St. Clair in the direction of the parked black van was the mother and he was unable to identify the Defendant in court.

26Officer Palm testified that at the time of her arrival "I observed a streetcar stopped and a young child down on the streetcar tracks with a male tending to her." She thought the child was between three and eight years old and that "…there was also a mother there, her mother I guess … leaning over her." Officer Singh testified that he saw blood on the streetcar tracks in the immediate vicinity of the location of the collision, but he did not speak with anyone associated with it.

27Admittedly, none of the witnesses had any direct information or knowledge as to who had charge of the child and who had left the child unattended.

28Notwithstanding the different degrees of recollection with respect to the various details of the circumstances of the accident involving the five-year-old child, including the identity of the people around the injured child, one can piece the information together to be able to conclude that the mother was not with the child at the time of the accident. Furthermore, she appears to have been the first and only person that the child recognized and addressed after she was struck by Ms. Shih's vehicle.

29In the circumstances described above, the inclination is to accept, even without any direct evidence, that the mother was in charge of the child and it was the mother who had left the child unattended as a logically sound and relevant inference.

30Two reasons stand in the way of the proposed inclination and inferred conclusion. Firstly, just because the defendant is the mother of the injured child and at the scene of the accident moments after it occurred, while relevant, is insufficient in and of itself to meet the test of beyond a reasonable doubt that she was in charge. And secondly, there is evidence before the Court that leads to other possibilities in relation to the key issues of having charge of and leaving the child.

31Specifically, the Court notes that in the testimony of Officer Palm brief mention is made of another person on the scene who may have been with the Defendant. At the point where the mother was to accompany the child in the ambulance, Officer Palm observed: "…the mother was also going into the ambulance and the mother appeared sort of hesitant or waiting. She needed to get her cell phone and her purse. …she did not go to get it. It was a person who I thought may have been a nanny or a friend appeared with the purse and cell phone." Officer Tammerog also spoke of a person with the Defendant at the Hospital and stated that she did not interview her. Given that this other person was observed later and away from the scene of the accident, and additionally was not interviewed, Officer Tammerog's observation is not relevant for the present analysis.

32Some inference could also be drawn from the presence of the black Honda van parked on the south side of St. Clair in the vicinity of the scene of the accident. The vehicle was the subject of Mr. Guider's testimony. Mr. Guider testified that he heard the van's alarm, saw its emergency lights flashing and through the open passenger sliding door he observed a car seat and sippy cup. It was in the vicinity of that van, Mr. Guider testified, that he first observed the child running to and fro before darting out onto the street. Given the circumstances, the Court accepts that it can be reasonably inferred that the child came out of that van. Unfortunately, the ownership of the van was never established, even though Officer Palm noted its plate number as part of her investigation.

33The van, however, is important for another reason. Mr. Guider testified that he stayed on the scene until the police arrived. When asked by the Prosecutor whether he went back to this vehicle, he stated: "No, somebody had moved it and I'm not sure when and where but somebody had moved it." He said that he had no idea who moved it. In the Court's opinion, if the mother was with the child at the accident scene when the police and ambulance arrived and if she left the scene in the ambulance with the child, she could not have been that somebody who moved the van. Hence even if the inference is that the van was somehow connected to the injured child and the Defendant, there was at least one other person on the scene possibly associated with the Defendant who had access to the car. This leaves open the possibility that someone else could have had responsibility for the child, that is in charge of the child and who had left the child. This other person, or perhaps even persons, was/were not investigated and remained unidentified.

34In the Court's view, the above-noted unexplained parts of the evidence represent serious gaps between the inferences on which the Prosecution relied and the standard of "near certainty" required to reasonably conclude guilt against the Defendant.

Conclusion

35For all of the above reasons, the Court finds that the charge against A.G. has not been proved beyond a reasonable doubt. The case is, therefore, dismissed.