WARNING

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

Victim under 18  —  other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Offence

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

ONTARIO COURT OF JUSTICE

CITATION: R. v. J.L., 2026 ONCJ 206

DATE: 2026·02·13

BETWEEN:

His Majesty the King

— and —

J.L.

Judgment at Trial

[ This judgment has been edited to comply with the applicable publication orders]

J. Lacelle................................................................................................. Counsel for the Crown

C. Zeeh ............................................................................................. Counsel for the Defendant

Felix J.:

Table of Contents: R. v. J.L.

I. Introduction 5

A. Introduction 5

II. Medical Evidence – Mechanism of Injury 10

A. Introduction 10

B. “Highly Concerning for Inflicted Injury” 10

C. The Law 12

III. Sourcing of the Expert Opinion 13

A. Foundation for the Opinion: The Defendant’s Spouse 15

1. The Mother’s Information Provided to Dr. Nolan 15

2. The Mother’s Testimony at Trial 15

3. Conclusion: The Defendant’s Spouse 17

B. Foundation for the Opinion: The FACS Worker’s Information 18

1. The FACS Worker’s Information Provided to Dr. Nolan 18

2. The Record of the FACS Worker’s Information at Trial 18

C. Doctor Nolan was not Provided with the Defendant’s Police Video 19

D. Conclusion 21

IV. Other Factors External Contributing to Reasonable Doubt 22

A. No Prior Record 22

B. There Was Nothing Unusual About the Defendant’s Care for Both Children Prior to May 10^th, 2024 22

C. A Prior Injury to the Child Was Not Adduced As Prior Discreditable Conduct 22

D. The Defendant and the Hospital Decision 23

E. The Prosecution Did Not Establish That Given the Timing of the Injury on May 10^th, the Defendant’s Inaction Prior to the Return of His Spouse, Was Indicative of His Mental Intent 25

F. The Defendant’s Medical Circumstances Contribute to Reasonable Doubt – the Accident 26

G. The June 6^th Surreptitiously Recorded Conversation With the Defendant Did Not Provide Material Admissions. 26

H. The Defendant’s Police Interview 27

V. Criminal Law Framework 30

A. The Burden of Proof and Criminal Law Framework 30

B. The Approach to Circumstantial Evidence 31

C. The Offence 32

VI. Conclusion 33

I. Introduction

A. Introduction

1The defendant is charged with one count of aggravated assault concerning his newborn child as a result of a police investigation in May of 2024. The defendant was in a relationship with his spouse at the time. He and his spouse were childhood “sweethearts” who married and had produced a two-year-old child and a newborn child. It is the newborn child who is the focus of this trial.

2The defendant was the primary caregiver for the two-year-old child. The defendant’s spouse was the primary caregiver for the newborn child.

3On May 10^th, the defendant’s spouse¹ had to return to work. This involved her leaving at 830AM and returning at 6:30 PM. This was the first time that the mother was leaving the child for any significant length of time. The plan was to leave the child with the defendant while she went to work and take the two-year-old to a relative for the day. The purpose of this plan was to relieve the strain on the defendant. He had recently suffered a serious car accident and was still recovering from life-threatening injuries.

4When the mother returned home from work at 6:30 PM, the child exhibited certain indicia. She believed the child was simply unwell. The child’s presentation was discussed with the defendant. Their joint perception was that the child was simply unwell.

5On May 11^th, the mother took the child to the walk-in clinic because the symptoms had not subsided. The doctor told her that the child was suffering from a viral infection. On May 12^th , when once again the symptoms persisted, she took the child to her family doctor. Her family doctor also believed that the child had a viral infection. The child was referred to a hospital in St. Catharines for blood work just in case.

6After examination at the hospital in St Catharines, the child was referred to a specialized hospital in Hamilton. While at the Hamilton hospital, the mother was advised by medical staff that there was evidence that the child had been injured. The mother understood the medical staff to say that the child had been assaulted or dropped. Either way, the medical staff was of the view that the child was a victim of inflicted harm.

7The mother was also specifically advised of certain timelines for the presentation of retinal hemorrhages. Given the rough timeline for the presentation of these injuries, she determined that the time frame for an injury was restricted to May 10^th when the child had been left alone with the defendant.

8Then a worker from Family and Child Services (FACS) told the mother that the defendant was no longer permitted to have contact with either child. Nor was he permitted to attend the hospital.

9The disclosure of this medical opinion caused friction between the parents. The defendant’s spouse confronted the defendant. The defendant described to his spouse a circumstance where the child was crying so he demonstrated holding the child against his chest and rocking the child to sooth the child.

10On May 31, 2024, the defendant attended the police station. He was not under arrest. He was not detained. He was given a caution that he was not obligated to speak to the police. The defendant then provided a voluntary statement to the police. This statement was over two hours in length. During this statement, amongst many other subjects, he described his caregiving activities in relation to the child. During this statement the defendant described the physical contact he had with the child. The defendant then physically demonstrated the movements to the interviewing detective. This demonstration is clearly visible on video.

11On June 6^th, the defendant and his spouse had contact at the family home. The defendant’s spouse surreptitiously recorded their interaction. She accused the defendant of harming their child.

12The defendant was ultimately charged with aggravated assault by the police.

13The matter proceeded to trial in January 2026. The Crown called the defendant's spouse, and Dr. Kathleen Nolan, an expert witness in pediatrics and child maltreatment. While there was no viva voce evidence adduced by the defendant, his voluntary police statement was admitted into evidence at trial.

14The prosecution theory is that the defendant intentionally assaulted his child, and that the defendant’s assault produced injury to the child. There is little quarrel with the identification of the injuries in this case. The Crown adduced expert opinion evidence in support of a finding that the child suffered the following injuries: (1) extensive intracranial subdural hemorrhages; (2) spinal subdural hemorrhage, (3) moderate multilayer retinal hemorrhages; and (3) acute neurological symptom presentation proximate to the event. Ultimately, these conclusions reached by the expert are cogent and supported by the record at trial. I have no difficulty relying upon Dr. Nolan’s expert testimony in support of a finding that these injuries were present on the child at the time of her evaluation.

15As it concerns causation, or the mechanism of injury, Dr. Nolan concluded that the presentation of these injuries was “highly concerning for inflicted injury”. In arriving at this conclusion, the expert relied, in part, upon information about the conduct of the defendant provided by his spouse, and information about the conduct of the defendant provided by a FACS worker.

16Criminal allegations involving vulnerable victims such as children provide significant, understandable concern, and anxiety. But this is a criminal trial. The Crown must establish a high burden of proof – proof beyond a reasonable doubt – in support of a conviction. A Court must evaluate the record established at trial when determining whether the criminal burden of proof has been met. Given the record adduced in this case, including the defendant’s version of events as described in his police statement, it would not be inappropriate to use R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)] as a tool to maintain a proper focus on the criminal burden of proof.

17This is a complicated and difficult case to evaluate. But after considering the entire record at trial, I find that the Crown has not proven the offence beyond a reasonable doubt. The purpose of this written judgment is to explain the detailed reasoning behind this conclusion.

18At the outset, I must stipulate that there is no issue with Dr. Nolan’s qualifications, expertise, or testimony. This witness exemplified what a Court expects from an expert witness – clear, objective, fair, and balanced testimony. As it concerns the expert opinion supporting the identification of injuries on the child, there is no issue. This opinion was the product of medical examination, medical testing, and information received from the defendant’s spouse about the presentation of the child after the time of suspected injury. The medical examination evidence is before the court. The medical testing information is before the court. And, critically, the defendant’s spouse testified directly and comprehensively as it concerned a catalogue of indicia that she observed on the child on May 10^th and following. As such, the body of information relied on by the expert witness in support of the opinion about injuries was supported by admissible evidence at trial.

19But a central issue at trial concerned the foundation for the expert opinion that the circumstances were “highly concerning for inflicted injury”. The foundation for this opinion articulated by Dr. Nolan relies upon information provided by the mother of the child and information provided by a FACS worker.

20As it concerns information provided by the mother, Dr. Nolan relied upon information from the mother describing a conversation she had with the defendant. The mother allegedly advised Dr. Nolan that the defendant said he had been holding the child against his chest and was not supporting the child’s head. The mother allegedly said that the defendant moved the child back and forth very forcefully. The mother allegedly advised Dr. Nolan that the defendant demonstrated the physicality of the movement. The mother allegedly demonstrated this physicality to Dr. Nolan. The demonstration was interpreted by Dr. Nolan as a forceful and quick back and forth motion with the upper body.

21The use of the term “allegedly” as it concerns that which was purportedly reported to Dr. Nolan by the mother is purposeful. This is because these statements relied upon by Dr. Nolan were not established at trial. Specifically, to be clear, the defendant’s spouse did not testify in support of this information attributed to her.

22The Crown used the tool of refreshing memory with this witness, but this did not assist. The Crown did not seek leave to permit the use of more focused leading questions: Reference Re Regina v. Coffin, [1956], 114 C.C.C. 1. The Crown did not apply pursuant to s.9 of the Canada Evidence Act for permission to cross-examine this witness. Finally, the Crown did not seek to substantively admit the mother’s police statement or any potential capture of the mother’s statements maintained by Dr. Nolan (if they existed).

23In the result, the mother’s conveyance of specific details relevant to the mechanism of injury were not proven at trial.

24Doctor Nolan also relied upon information conveyed by a FACS worker. The FACS worker was not called as a witness at trial. The FACS worker’s communication to Dr. Nolan appears to have relied upon the defendant’s police statement as a source. The FACS worker’s statements, as summarized in Dr. Nolan’s report, were neither detailed nor comprehensive. Further, the FACS worker’s summary provided to Dr. Nolan materially differs from my analysis of the police statement as the trial judge.

25Finally, it is also important to note that Dr. Nolan was not provided with available material information that should have been considered when arriving at her opinion. It must be clearly stated that the defendant provided a voluntary statement to the police. He was not under arrest. He was appropriately cautioned by the interviewing detective. During that statement the defendant directly described his interaction with his child and even provided a physical demonstration to the interviewing detective. This video, a material piece of evidence in determining the mechanism of injury, was never provided by the police to Dr. Nolan for her expert opinion. As such, Dr. Nolan was not given the opportunity to observe the actions presented by the defendant and provide an opinion.

26In this written judgment I will explain the law as it pertains to the admission of expert opinion evidence in a criminal trial. But in sum, an expert opinion is typically premised upon assumed facts to ground the opinion. If those facts are not established, this may impact the weight attributable to the opinion.

27The mother’s testimony at trial, the FACS worker’s information, and the failure to provide material video evidence to the Dr. Nolan weakened the foundational support for the expert opinion concerning the mechanism of injury. While I found that the evidence was still admissible, the weight assigned to the admissible expert opinion was diminished.

28Returning to the tool of W.(D.), even if I have erred in the analysis of the weight to be assigned to the admissible expert opinion evidence, there remains a reasonable doubt based on other features of the record adduced at trial.

29When the focus of a criminal trial involves vulnerable complainants, complainant’s who can not speak for themselves, it is often a challenging process with understandable scrutiny and concern. The circumstances in this case arouse suspicion. But this is not a balance of probabilities exercise. But the criminal standard of proof is much higher and can not be relaxed no matter the case or the circumstances.

30Because of my suspicion, I can not say that I totally accept the defendant’s position at step one of W.(D.). But having regard to the defendant’s admissible police statement and the record at trial, I find that his police statement and the trial record as a whole supports reasonable doubt at step two of W.(D.).

31In this regard I will explain why a central focus concerns strict proof of the charge before the court. The defendant is not charged with an offence for which a form of “negligent parenting” is an element. The defendant is charged with aggravated assault. The crime of aggravated assault mandates proof of an intentional assault as defined in the Criminal Code.

32In plain language, the defendant has acknowledged having physical contact with the child in an attempt to soothe the child. The physical contact described by the mother (during her confrontation with the defendant) and the physical contact described by the defendant in his police interview are articulations of contact that objectively would be within the subset of “normal” parental contact with newborn babies. Every parent has held a child in the manner described by the defendant in his police statement.

33When the defendant’s spouse testified, she said that nothing about the physical contact alone would objectively suggest the risk of bodily harm. The open question remained the degree of force used during this contact. The defendant’s position is that it is possible that he used too much force. But he did not form an intention to assault his child.²

34In the final analysis a criminal court must consider the entire record in light of the criminal burden of proof that is placed on the Crown. This case also requires a self-instruction on the proper approach to a case sourced in a mixed record of direct evidence and circumstantial inference.

35I find that the prosecution has not proven that the defendant held the requisite mens rea for the offence of assault – a mandatory prerequisite for conviction. Specifically, I am not convinced beyond a reasonable doubt that the mechanism of injury was an intentional act of assault on his child.

36The defendant is found not guilty.

II. Medical Evidence – Mechanism of Injury

A. Introduction

37Dr. Kathleen Nolan was proposed as an expert witness in pediatrics and child maltreatment. Both the Crown and Defence submitted that a formal voir dire was not necessary having regard to her curriculum vittae, experience, and anticipated evidence. After some inquiry, the Court dispensed with the need for a formal voir dire subject to the overarching obligation for the Court to be a “gatekeeper” and ensure that the expert opinion remained within permitted bounds.

38Doctor Nolan presented a written report and PowerPoint presentation to assist with understanding her expert evidence. The written report comprehensively addressed the sourcing of her information and foundation for her opinion. The report also identifies the reasoning behind the analysis and factors that were considered.

39Doctor Nolan consolidated a number of “sub-opinions” focused on each identified injury and arrived at the following summary of her overall opinion at page 27 of her report:

Summary

[The child] presented at 3 months of age with extensive subdural hemorrhage, spinal subdural hemorrhage, and moderate retinal hemorrhages.

The constellation of findings is highly associated with inflicted injury. No accidental injury event has been reported to explain these injuries. [The child]'s father has reported bouncing [The child] too hard and has demonstrated a forceful shaking back and forth motion, which reportedly occurred two weeks prior to his presentation to MCH. If this injury event resulted in forceful acceleration/deceleration of [The child] head, as has been described, with or without impact, this would plausibly explain his findings and symptoms during the two weeks prior to his presentation to MCH.

40Overall, I found the expert witness to be well-qualified, thorough, and balanced in the provision of an objective expert opinion. Having considered the expert report and the testimony of Dr. Nolan at trial, I accept the medical diagnosis and description of injury. Specifically, I accept the expert opinion evidence that the child presented with extensive subdural hemorrhage, spinal hemorrhage, and moderate retinal hemorrhages.

B. “Highly Concerning for Inflicted Injury”

41There are cases of alleged child abuse where the defendant’s proffered explanation or outright denial of involvement in a trauma-causing event, conflicts with the expert opinion evidence regarding causation of injury. For example, if the expert evidence were to support a medical finding that a child’s ulna bone in the forearm had three fractures consistent with the application of significant external force, and a defendant’s explanation was that “nothing happened”, there would be a lack of congruence, or conflict, between the expert evidence and the proffered explanation.

42This case is different. The expert opinion does not support specific mechanisms of injury such as (for example) the child was dropped, thrown, struck against a table, or otherwise subjected to external blunt force directed at a specific part of the body. There was no evidence of bruising on the child’s body. There was no evidence of a historical pattern of abuse.³

43The defence position is that the defendant was engaged in a physical act designed to comfort the child. The defendant walked and rocked or bounced the child with the object of soothing the baby. There was nothing inherently criminal in this act performed by all parents.

44Doctor Nolan testified about the process she followed to arrive at a conclusion that the cause of injury was “highly concerning for inflicted injury”. With scrupulous regard for the fact-finding role of the trier of fact, her use of this phrase connotes the strongest expression that an intentional act caused the injury to the child.

45There are three categories of sourcing for this opinion: (1) the medical circumstances and documentation of injury; (2) information provided by the mother of the child directly to Dr. Nolan; and (3) information provided by the FACS worker directly to Dr. Nolan.

46As outlined above, there is no issue with the first category of sourcing. I accept Dr. Nolan’s evidence about the fact of injury. I accept Dr. Nolan’s expert report and the testimony of Dr. Nolan at trial in support of her assessment of the indicia displayed by the child on May 10^th and following. I accept the product of her examination of the child. I accept the medical diagnosis and description of injury. Again, specifically, I accept the expert opinion evidence that the child presented with extensive subdural hemorrhage, spinal hemorrhage, and moderate retinal hemorrhages.

47As it concerns the second category of sourcing – information allegedly provided by the mother of the child directly to Dr. Nolan describing the defendant’s articulation of physical contact with the child – there is a problem. The mother of the child did not testify in support of the specific details allegedly provided to Dr. Nolan. I will explain my assessment of this witness’s evidence and why the factual foundation she provided to Dr. Nolan was not proven at trial. This had an impact on the weight to be attributed to the expert opinion evidence.

48As it concerns the third category of sourcing – information provided by the FACS worker directly to Dr. Nolan as set out in her report – there is a problem. As I will outline below, the circumstances surrounding the use of the FACS worker evidence also impacted the weight of the expert opinion evidence.

49To understand the impact of these twin concerns, it is important to briefly outline the law as it pertains to the evaluation of expert opinion evidence. In sum, an expert opinion is an opinion. That opinion is partially dependant on facts. Those facts must be established at trial to provide foundation for the opinion. If certain facts are not established at trial, there may be a resultant impact on the weight attributable to the expert opinion.

50In the final analysis, the expert opinion in this case relied upon a hypothetical factual foundation that involved the defendant forcefully shaking the child without supporting the child’s head. This record was not established at trial.

C. The Law

51Opinion evidence is presumptively inadmissible in a criminal trial. It is only when the test for admission is satisfied that it may be received: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 14-15 [White Burgess].

52Medical experts generally form an opinion by applying their training, education, and experience, to a number of facts that are assumed for the purpose of establishing the factual basis for the opinion. Indeed, expert opinion evidence is often adduced in a formalistic manner where the opinion of the expert is overlayed atop hypothetical “facts”. In this formalistic approach the examiner invites the expert witness to assume or accept certain “hypothetical” facts and then provide an opinion based on those facts. While this formalistic approach was once the norm, even today as it appears that more relaxed approaches are permitted, there remains the core concern that the expert’s opinion may not usurp the role of the trier of fact in their fact-finding exercise.

53Proffered expert opinion evidence is assessed pursuant to certain criteria: White Burgess, at paras.16-25. If the expert opinion evidence meets the criteria, it may be ruled admissible. When ruled admissible, it may be received by the trier of fact. The trier of fact is not obligated to accept the opinion evidence. It is always the role of the trier of fact to determine how much, or how little, weight the opinion evidence deserves.

54It is also for the trier of fact to determine if the assumed (i.e. ,”hypothetical”) facts, relied upon by the expert, have been established at trial. For example, in a jury trial one might expect the trial judge to instruct the jury that they must assess the record at trial and determine if the facts relied upon by the expert have been proven. One might also expect the trial judge to instruct the jury that if the underlying facts were not proven, the jury must determine how that impacts the weight assigned to the expert opinion.

55Expert opinion witnesses frequently rely upon hearsay information. This is not a bar to the admissibility of the expert opinion: R. v. Lavallee, [1990] 1 S.C.R. 852, at paras. 65-66 [Lavallee]. But the hearsay evidence is admissible only to demonstrate the sourcing of the expert opinion. The expert’s reliance on hearsay evidence does not render the hearsay evidence true. Where the factual basis of an expert’s opinion is a mix of admissible and inadmissible evidence, the weight attributable to the expert opinion is directly related to the amount and quality of admissible evidence upon which it relies: Lavallee, at paras. 74 - 77, 80-84.

56Thus, applying the law to this trial, as it concerns Dr. Nolan’s reliance on the hearsay aspects of the medical record, medical testing, and the opinions of other medical professionals, there is no concern based on the record established by the Crown at trial: Lavallee, at para. 83. That record, including information from the mother of the child, was placed before the court by way of admissible evidence.

57Again, applying the law to this trial, there was nothing inherently wrong with Dr. Nolan receiving information from the defendant’s spouse or the FACS worker. The statements made by these two witnesses are admissible insofar as they form part of the basis upon which Dr. Nolan formed her opinion.

58But these statements are not admissible for their truth at trial. To the degree the expert opinion is dependant on these two sources of information, the Crown must establish the sourcing by admissible evidence. Where the opinion is dependant on this hearsay, the issue becomes one of the weight to be assigned to this evidence having regard to the record at trial: R. v. Giesbrecht (1993), 20 C.R. (4th) 73 (Man. C.A.), at paras. 14-15, aff'd 1994 96 (SCC), [1994] 2 S.C.R. 482; Lavallee, at paras. 13, 22, 65-66, 80-84.

59I will now address the sourcing of Dr. Nolan’s opinion and explain why there are deficiencies in the record adduced at trial.

III. Sourcing of the Expert Opinion

60Doctor Nolan’s expert opinion is founded upon the following sources enumerated on the first page of her report:

• History taken from the child’s mother on the date of his presentation

• Physical examination of the child on May 24, 2024

• Multiple subsequent meetings with the child’s mother during the child’s hospitalisation

• History taken from the child’s mother during my follow-up visit with the child on June 26,2024

• Physical examination of the child during follow-up on June 26, 2024

• Medical records from St. Catharine's General Hospital (SCGH) on Clinical Connect

• Medical records from MCH

• Diagnostic imaging reports from MCH and SCGH

• Information provided by worker with the Niagara Family and Children's Services (FACS)

61Doctor Nolan consolidated a number of “sub-opinions” focused on each identified injury in the child, and arrived at the following summary of her overall opinion at page 27 of her report:

Summary

[The child] presented at 3 months of age with extensive subdural hemorrhage, spinal subdural hemorrhage, and moderate retinal hemorrhages.

The constellation of findings is highly associated with inflicted injury. No accidental injury event has been reported to explain these injuries. [The child’s] father has reported bouncing [the child] too hard and has demonstrated a forceful shaking back and forth motion, which reportedly occurred two weeks prior to his presentation to MCH. If this injury event resulted in forceful acceleration/deceleration of [the child’s] head, as has been described, with or without impact, this would plausibly explain his findings and symptoms during the two weeks prior to his presentation to MCH.

62Doctor Nolan testified that the first consideration in her process was to evaluate how concerning the injures are for “inflicted injury” based on the medical assessment alone, assuming no other source of information as to causation: (e.g., the bruised shin example). Then, she considered other sources of information (e.g., the bruised shin was an inflicted injury according to X person) and the plausibility of the described or reported mechanism of injury.

63Applied to this case, Doctor Nolan relied upon medical reports, medical tests, medical opinions, and analyses generated by other medical professionals. As indicated above, I do not find any issue with these sources. Nor is there any issue with her medical examinations conducted on the child.

64But moving on to the “other sources” contributing to Dr. Nolan, she also considered the information reported to her by the defendant’s spouse and the FACS worker.

A. Foundation for the Opinion: The Defendant’s Spouse

1. The Mother’s Information Provided to Dr. Nolan

65Doctor Nolan relied upon the defendant’s spouse for a description of indicia consistent with the child having had three possible seizures on May 10, May 11th, and May 13^th.⁴ Specifically, as it concerns the mechanism of injury, Dr. Nolan relied upon the defendant’s spouse for the following information:

[The child’s mother] reported to me on May 29, 2024, that she had spoken to [the child’s] father, [ redacted] and he told her that the day [the child] began acting abnormally he had been holding [the child] against his chest and was not supporting his head.

He moved him back and forth very forcefully.

[The child’s mother ] demonstrated with her body what she reports [the defendant] showed her which consisted of a forceful and quick back and forth motion with her upper body.

2. The Mother’s Testimony at Trial

66It is important to note that the defendant’s spouse did not testify in support of the specific information relied upon by Dr. Nolan. Specifically, she did not testify that the defendant “… was not supporting his head” or that the defendant “moved him back and forth very forcefully”.

67The defendant’s spouse testified at trial about a conversation that she had with the defendant after she was advised at the hospital about the medical opinion that the injury to her child had been inflicted.⁵ She explained that the defendant described trying to sooth the child in an effort to stop the child from crying. She testified and physically demonstrated in court that that the defendant described:

1. holding up the child chest to chest;

2. that he was rocking up and down;

3. that his left hand was scooped in front of the lower part of the child’s body holding the child up; and,

4. the right hand was holding or supporting at the baby’s back or head.⁶

68The defendant’s spouse also testified that she asked the defendant whether there was anything he did. The defendant said no, but then he was thinking about it, and then said: “the only thing I can think of is maybe when I was trying to rock him when he was crying, maybe he [sic] did that too hard and maybe that is what caused it.”

69The defendant’s spouse explained that the defendant did not say anything about the level of force or how hard the movements were. Critically, she testified that “I made an opinion of what I thought maybe would have caused something like that, but not what he specifically told me”.⁷ The Crown suggested that the witness refresh her memory on this point, and the witness declined the opportunity. Her memory was not refreshed.

70Later, the Crown returned to this area and the witness testified “He did not tell me how much force, he said it must have been too hard, I interpreted it in my own way.” The witness maintained her position that the defendant did not physically show her the level of force used.

71During cross-examination, the defendant’s spouse’s evidence evolved slightly. She testified that she could not remember the exact words but that she put to her spouse that the medical staff was saying that it was a physical injury, and she asked him is there anything he could think of that could have caused this injury. This witness testified that the medical professionals told her the cause of injury was some sort of physical assault involving shaking or dropping. She also testified that she operated from a belief that the medical staff were of the opinion that the defendant must have been responsible for hurting their child.

72During cross-examination the defendant’s spouse also provided this answer:

Q. The way he described it to you about rocking the child when you heard that do you recall having any concerns about him rocking the child as he described?

A. I mean how he rocked the child, no, I did not know the roughness. Like … he didn’t describe anything … so I have no idea. And I’m, just going by what the doctors say, and like, it just I don’t know.

73The defendant’s spouse testified that it was not uncommon to rock the child in an effort to put him to sleep. She described a process that she herself following involving rocking the child gently against her chest.

74In sum, the defendant’s spouse agreed with the suggestion that the defendant said something akin to “He rocked the baby and maybe it was too rough or too hard”. She also explained that as he provided this explanation he demonstrated the physicality of the movement. When she observed the physical presentation exhibited by the defendant, the movement itself did not provoke a concern on her part. But once again she emphasized that the defendant did not say how “rough” or how “hard” the movement was.

3. Conclusion: The Defendant’s Spouse

75It is critically important in any criminal trial to strive to place important circumstances in their appropriate context. The defendant’s spouse, her confrontation with the defendant, and his subsequent statements must be assessed in the context of the times.

76When the child was first admitted to hospital the focus was on determining the illness and treating the child. The defendant’s spouse testified that both parents were focused on trying to determine what could have caused the presentation of their child. But after the retinal scan, the medical staff made it clear to the defendant’s spouse that the injuries were caused by an assaultive shaking or dropping of the child. Given the time frame associated with the retinal injury, the defendant’s spouse believed that May 10^th was the only relevant date. She knew that her husband was home alone with the child all day.

77The defendant’s spouse clearly placed great emphasize on the medical opinion that the defendant had caused an injury. She was also influenced by the FACS worker’s statement that although she would do her due diligence as required, in reality, the focus was on the defendant as the perpetrator. Finally, she was also influenced by the FACS worker advising her that the defendant was hereby prohibited from having contact with either of their children and could not attend the hospital to see their child.

78This was the context when the defendant’s spouse confronted the defendant. This was an effort on her part to seek to understand what had occurred. In this climate where the defendant was the focus, he provided his statements outlined above.

79The substance and tenor of the defendant’s spouse’s recount of this confrontation was that the defendant volunteered a possible explanation – that the rocking might have been too hard or rough. This was not interpreted by this witness as an admission that he deliberately or wilfully applied physical force to his child with the intent to commit an assault. The defendant simply speculated that his soothing efforts might have been too hard or too rough. I accept this recount from the person who knows the defendant better than anyone in the courtroom.

80Doctor Nolan was entitled to rely upon statements made by the mother of the child as a source of information and foundation for her expert opinion. But the defendant’s spouse did not testify in support of the information she allegedly relayed to Dr. Nolan. Whatever form the defendant’s spouse’s statements to Dr. Nolan took, they were not adduced for the truth of their contents at trial.

81The defendant’s spouse refreshed her memory but did not fully adopt suggestions put to her by the Crown. The prosecution declined to use escalating tools such as: (1) seeking leave from the Court to examine with more focused leading questions; (2) embarking upon a s.9(1) or s.9(2) CEA application; or (3) seeking to substantively adduce the defendant’s spouse’s statement to the police as a piece of evidence at trial.

82I am left with a gap between this witness’s alleged report to Dr. Nolan, and this witness’s testimony at trial. This impacted the foundation for the expert opinion evidence. This impacted the weight assigned to the expert opinion evidence.

B. Foundation for the Opinion: The FACS Worker’s Information

1. The FACS Worker’s Information Provided to Dr. Nolan

83Dr. Nolan also relied upon the following information provided by the FACS worker:

[The FACS worker] reported to me on June 27, 2024, that [the defendant] had been interviewed. He reported that he was home alone with [The child] all day, and that [The child] had become unresponsive after [the defendant] bounced him too hard. He repeated the explanation he had provided to [the mother] that he was holding [The child] against his chest and then [the FACS worker] reported he took his hands and did a shaking motion back and forth.

2. The Record of the FACS Worker’s Information at Trial

84The FACS worker was not called as a witness at trial. As such, there is no direct evidence of what this worker told Dr. Nolan. The sourcing of the FACS worker’s information outlined above is not identified in the report or the evidence at trial. The information simply contained in Dr. Nolan’s report.

85The Crown submits that I may draw a reasonable inference that the FACS worker sourced the information provided to Dr. Nolan from the police interview of the defendant with the police. I agree with the Crown submission that there exists a reasonable inference in this regard. Further, while the Crown Attorney’s submissions are not evidence, I agree that there is nothing in the record suggestive of an independent FACS interview of the defendant. I draw the reasonable inference urged upon me by the Crown. I conclude that the FACS worker must have been reporting details she obtained from observing the police interview of the defendant.

86It is important to emphasize that Dr. Nolan relied upon the FACS worker’s interpretation of the video:

[The defendant] repeated the explanation he had provided to [the defendant’s spouse] n that he was holding [the child] against his chest and then [the FACS worker] reported he took his hands and did a shaking motion back and forth.

87If the above bolded statement was sourced from the presentation of the defendant on video during his police statement, I must cautiously note that this was the FACS worker’s interpretation of what she saw on video. Dr. Nolan then relied upon the FACS worker’s interpretation of the video. On it’s face, the information provided by the FACS worker could support Dr. Nolan’s acknowledgement and inclusion of such actions as potentially being a mechanism of injury.

88But there are issues with this area of sourcing.

89First, the FACS worker was reporting this information to Dr. Nolan on June 27^th, 2024. The defendant’s police statement was May 31^st, 2024. The record at trial does not disclose if the FACS worker was relating information from her memory of the interview on May 31, 2024. If so, it was approximately a month later. It is also not clear what if anything the FACS worker did prior to conveying this information to Dr. Nolan. For example, did the FACS worker refresh her memory from notes, or a transcript given the passage of time? Or did she re-watch the video prior to speaking to Dr. Nolan on June 27^th, 2024? There is no evidence on this point.

90Second, the FACS worker’s recital to Dr. Nolan was not comprehensive, detailed, or accurate. As the trier of fact at trial I have set out my analysis of the police statement below under heading “The Defendant’s Police Interview”. The FACS worker’s recital to Dr. Nolan did not address the details in that interview.

91Third, according to the testimony of the defendant’s spouse at trial, when she confronted the defendant about the injuries, and he provided his demonstration, there was nothing inherent in the physical action he performed that caused her concern. Paraphrasing her testimony, she was clear that it was not what the defendant did, the open question was how rough or how hard he did it.

92Finally, it is also important to note that there is a material difference between the physicality described by the mother and the physicality described by the FACS worker as conveyed to Dr. Nolan. These material differences were not resolved at trial.

C. Doctor Nolan was not Provided with the Defendant’s Police Video

93Leaving aside the sourcing issues with the mother of the child and the FACS worker, it is an unavoidable fact that Dr. Nolan was not provided with material evidence that was relevant to her expert opinion. The defendant provided a voluntary police statement. In that video police statement, the defendant answered every question asked by the interviewing detective. The defendant directly articulated his actions in relations to the child. The defendant even demonstrated the actions that he performed in relation to the child as he explained the circumstances to the interviewing detective. At trial, it became apparent that Dr. Nolan had never received this video.

94This is not intended to be a criticism of a busy medical specialist. Doctor Nolan is not a police investigator. Nor is she part of a “prosecution team”. She is an expert witness who must zealously protect her objectivity. She owes a duty to the Court to fairly and comprehensively assess any relevant information. She owes a duty to the general public. She is expected to meet the standards of medical ethics and professionalism. The expert witness does not determine what materials should be reviewed – this is the responsibility of the party seeking the opinion.

95There is no mandatory requirement that the police present the entire police investigation to an expert witness in a criminal case. But there are some circumstances where the police should consider this important issue and seek guidance and legal advice from the Crown Attorney. Take for example, a forensic psychiatrist providing an expert opinion on fitness or criminal responsibility. It is not unusual, if available, to provide a video capture of statements made by the defendant proximate in time to the offence or upon police capture. This is objective evidence of the presentation of the defendant and may be relevant to the legal issues and the forensic opinion. Or take another example of a collision reconstruction expert witness analyzing an accident scene. If the police have received dashcam video of the movement of vehicles leading up to the collision at issue, there is nothing wrong with an expert receiving objective evidence in this manner.

96In my respectful view, the police or Crown had a responsibility to provide the video to Dr. Nolan.⁸ During her testimony Dr. Nolan maintained that her conclusion as to the mechanism for injury was dependant on the “injury mechanism that was presented to me” and the “injury mechanism that was reported to me”. As such, she never received the opportunity to directly observe what was arguably material evidence – the defendant’s statements and demonstration on video. Had she received this opportunity she could have opined as to whether the defendant’s statements or demonstration impacted her expert opinion as to the mechanism of injury.

97The absence of this opportunity means the absence of evidence directly touching the position of the defendant as conveyed to the police.

98Once again, it must be emphasized that on this record the mechanism of injury highly nuanced, and closely associated to conduct encompassed by “normal” parenting behaviour designed to sooth a child. As explained by Dr. Nolan during cross-examination, so called “normal” behaviour could encompass both accidental and intentional acts. In such circumstances, it was important to give the expert witness the opportunity to directly address the observed conduct since it was performed by the defendant on video. The absence of this opportunity contributed to reasonable doubt.

D. Conclusion

99As set out in this judgment, I had no concern with respect to Dr. Nolan’s qualifications, experience, or medical opinion, with respect to the injuries she documented when examining the child in this case. Nor was there any issue as it concerned her receipt of information from the mother concerning the physical presentation of the child on May 10^th and following.

100But there were issues with the factual underpinnings for her opinion as it concerned the mechanism of injury. The information allegedly provided by the mother of the child concerning the defendant’s actions was not proven in court. While this hearsay may be relied upon by Dr. Nolan in arriving at an expert opinion, such reliance does not render the information admissible as a fact at trial. There were also more nuanced issues with the information provided by the FACS worker. Finally, the expert was not given the opportunity to opine on the defendant’s articulation of his contact with the child and his physical demonstration of that contact as captured on the video police statement.

101In this case, the asserted mechanism of injury closely approximates “normal” or “typical” parenting approaches to soothing a child. Every parent has walked and rocked or bounced a child in an effort to sooth a crying child. It would have been helpful had the police given the expert an opportunity to see the video so that Dr. Nolan could opine directly on what she observed in the defendant’s movements captured on video.

102While the expert opinion is admissible, these circumstances require a modest reduction in the weight assigned to the expert opinion evidence.

103I will now move on to other features of the record that also contributed to reasonable doubt.

IV. Other Factors External Contributing to Reasonable Doubt

A. No Prior Record

104The defendant has no prior record.

B. There Was Nothing Unusual About the Defendant’s Care for Both Children Prior to May 10^th, 2024

105The prosecution lead evidence from the mother on several subjects relevant to the state of mind of the defendant. Amongst these subjects, the mother described challenges around:(1) the timing of the defendant’s accident and the birth of the child; (2) paternity of the child; (3) the lack of connection between the defendant and the child; and (4) the defendant’s frustration when dealing with the child.

106The Crown is not required to prove motive in a criminal trial. But if the object of these areas of evidence was to demonstrate motive, the testimony of the mother neutralized these areas.

107The mother testified that the defendant was the primary caregiver for their first child who was two years old. She explained that he was an effective parent, and she had no complaint as it concerned his care for this child. The defendant told the police in his statement that he enjoyed a very positive relationship with the first born child. He explained that he would never do anything to harm either child.

108The mother also testified that the child bonded well with her and not as well with the defendant. She was able to comfort and calm the child easily and quickly. The defendant was not so able. She acknowledged being the “lucky parent” in this regard. She also said at times the defendant would hand the child over to her as he was frustrated with the crying.

109Finally, the mother explained that in the aftermath of the accident, the defendant was experiencing challenges adjusting during the recovery. The mother was very clear that there was nothing untoward about the defendant’s behaviour concerning the child leading up to May 10^th, 2024.

C. A Prior Injury to the Child Was Not Adduced As Prior Discreditable Conduct

110During direct examination of the defendant’s spouse, the prosecution led evidence of a prior injury to the child. According to the defendant’s spouse, when the child was two months old, the defendant sat down on a couch and the child’s arm suffered a fracture. The child was taken to the hospital. FACS was involved. Ultimately the medical determination was that it was an accident.

111It is a significant and concerning circumstance that in the short life of the child, the defendant was responsible for a previous injury. Common sense and life experience supports a grave and anxious concern about a parent implicated in two injuries in a matter of mothers. It is not difficult to surmise that these circumstances influenced the actions of the FACS worker and the police investigation.

112But as a judge in a criminal trial I am restricted to the record at trial, the rules of evidence in a criminal trial, and the guidance of the approach followed by counsel.

113The Crown did not ask this Court to view this circumstance as evidence of prior discreditable conduct. To be clear, the Crown did not bring an application seeking permission to adduce this record as prior discreditable conduct evidence. At the end of the trial, the Crown did not submit that the prior circumstance was relevant to the assessment of the defendant’s mental intent or conduct in this case.

114At the time when this evidence was adduced, Defence counsel did not object to the admission of the evidence. As it concerns the record at trial, I know only the fact of injury, and that the circumstances were deemed accidental. Whether the determination of accident was the decision of a medical practitioner, FACS, the police, or some combination of the three, is not in the record at trial.

115As such, this prior circumstance was rendered effectively simply part of the narrative. It was also potentially helpful in understanding the decision of the parents on March 10^th with respect to immediate attendance at the hospital as outlined next.

D. The Defendant and the Hospital Decision

116The Crown submits that the defendant did not wish to take the child to the hospital and that this is relevant to an assessment of his knowledge and mental intent.

117During direct examination, as it concerned May 10, 2024, the defendant’s spouse testified that the defendant did not dissuade her from going to the hospital on May 10, 2024. He simply felt that they should got to the doctor. The Crown had her refresh her memory from her police statement of May 29^th, 2024. She then testified that she could not remember that day in her memory, but adopted her police statement, and testified that he did not want her to take the child to the hospital because of the potential for FACS involvement. She perceived his stance on this issue as communicating a concern that FACS would re-open the prior investigation.

118As it concerned this same issue on May 11, 2024, the witness testified that the defendant did not dissuade her from going to the hospital. The witness refreshed her memory from her police statement and partially adopted her earlier version that he did try to dissuade her. She then went on to testify it was not necessary to go to hospital. She did not adopt the portion of her police statement suggesting that the defendant repeated his concern about FACS involvement on May 11^th, 2024.

119During cross-examination, this witness testified that the defendant said there was no need for a hospital attendance, and he did not want FACS to get involved. Again, she was unable to remember the specific words he used in this regard.

120The Crown submission interprets this evidence to mean that the defendant was intent on avoiding an “investigation” (i.e., police investigation) in addition to FACS involvement.

121The defendant’s approach to this issue arouses obvious suspicion and concern. But this concern is muted by several other observations.

122First, it does not strain the record to observe that the defendant and the mother perceived the earlier FACS involvement as a difficult experience. This observation does not connote bad conduct on the part of FACS. But it is not unreasonable to consider that the defendant’s reluctance could simply be borne of that experience. Certainly, this is how I interpreted the tenor of the mother’s evidence on this issue.

123Second, the mother was the primary caregiver for the child. Given the record at trial, and my appreciation of the dynamic of their relationship, the mother could have easily insisted on an attendance at the hospital. She did not. The simple explanation appears to be that the mother believed that the child was simply ill, not gravely injured. This was discussed with the defendant. The attendance at doctor appointments and the received opinion of two doctors at the walk-in-clinic only reinforced this position.

124Third, it was only upon the final visit at the doctor’s office when the family doctor referred them to the hospital for blood tests. This was perhaps a week after the onset of symptoms. There is no evidence of a conversation at this point with the defendant whereby he attempted to dissuade her from this course of action.

125When I consider the perspective of the parents at this juncture, I also recall the expert opinion that that the articulated presentation of the child on those days in May 2024 could have confounded even daily caregivers.

126In the final analysis, I do not place great weight on the suspicious behaviour of the defendant. It would be dangerous for this court to assign a peculiar mental intent to these actions particularly when the defendant’s spouse also did nothing, and two doctors did not believe hospitalization was warranted.

E. The Prosecution Did Not Establish That Given the Timing of the Injury on May 10^th, the Defendant’s Inaction Prior to the Return of His Spouse, Was Indicative of His Mental Intent

127The Crown carefully and deliberately adduced a detailed record of the child’s presentation and symptoms observed by the defendant’s spouse upon her return from work at approximately May 10^th, 2024. The defendant’s spouse provided a detailed recount of these indicia over the subsequent days leading up to the attendance at a hospital. The defendant’s spouse also took short videos of the child’s presentation that were played in court. I accept the evidence of the defendant’s spouse. The expert witness partially relied upon this report. There was no significant challenge to this record at trial.

128The Crown also notably adduced the expert opinion that the physical indicia consistent with injury would have been present very quickly. The implied approach of the prosecution on this issue is that the defendant had some significant period of time during the day on May 10, 2024, to notice that the child was injured, and he did nothing. Again, the implied approach of the prosecution is that inaction on the part of the defendant, in the face of the child’s presentation, might be a relevant consideration as it concerns his mental intent.

129If the Crown intended this approach, the foundational support for such inferences is weak.

130First, the expert witness testified that it was difficult to pinpoint a specific time that the injury was caused. There is no evidence of the timing of injury baring it could have occurred between 830 AM and 630 PM. So, I do not know if the defendant necessarily had hours to detect the child’s presentation in response to injury.

131Second, I simply adopt my reasons above regarding the presentation of the child and the fact that neither parent determined that immediate hospital attendance was required because the child was simply ill. Amplifying that conclusion was the mother’s evidence that her own mother had contact with the child and was sick at the time. Also, that she and the defendant were ill. So, when she observed the presentation of the child on May 10th, she concluded that the child was merely sick.

132Third, I restate the expert witness testimony that the indicia of injury she described could easily be misperceived even by regular caregivers. In other words, it would not necessarily have been readily apparent that the child was injured.

133The record adduced showing no specific time of infliction of injury on May 10^th, and the presentation of symptoms do not establish that the defendant did nothing in the face of obvious injury.

F. The Defendant’s Medical Circumstances Contribute to Reasonable Doubt – the Accident

134The record is clear that the defendant suffered a devastating car accident just three weeks prior to the birth of the child. While the defence adduced a large volume of medical records and the defendant’s affidavit in response to the prosecution’s voluntariness application concerning the defendant’s police statement, ultimately the defence conceded the statement was admissible. The defence did not prove the medical records. The defendant did not testify. The medical records and the affidavit are inadmissible at trial.

135But based on the testimony of the defendant’s spouse, and the content of his police statement, it is apparent that the accident visited serious injuries upon him. The defendant’s spouse testified that it was a catastrophic car accident that caused a lot of trauma for both of them. The defendant was in a coma for a few weeks. He suffered a brain injury and several strokes. She was pregnant and coping with that stressor as well.

136During the defendant’s statement to the police, he explained that he had suffered a traumatic brain injury. As a result, he had trouble recalling specific dates and timelines, sequencing of events, or “exactly how things happened”. He also explained that he has memory gaps, difficulty “pulling up” information, and circumstances where he remembers but has difficulty expressing the idea clearly.

137This record at trial modestly contributes to reasonable doubt insofar as the defendant’s command of his physical movements appears to have been impaired to some degree. Having regard to mechanism of injury, the precise degree of force, and whether that force was applied with the requisite mental intent, is critical.

G. The June 6^th Surreptitiously Recorded Conversation With the Defendant Did Not Provide Material Admissions.[^9]

138In the aftermath of the disclosure of inflicted injury, the witness had removed both children and limited her contact with the defendant. On an occasion in June, she attended the family residence to get things for herself and the children. Her sister recommended that she record the occurrence. As a result, the witness recorded her husband using her iPhone for 24 minutes. It does not appear from the recording that the defendant was aware that he was being audio recorded.

139It is clear that the defendant’s spouse used this opportunity to stimulate the defendant on several provocative subjects including: (1) unplanned or unwanted child; (2) frustration with the child; (3) injuring the child twice rather than once; (4) that he was rough with the child and almost killed him; (5) that he should leave the house so that his spouse and the children have shelter; and (6) specific prompting about causation¹⁰.

140Amongst the statements made by the defendant were the following:

• That it was the first time caring for the newborn child since his brain injury

• That the child was unplanned, arrived in close proximity to the defendant’s accident, and this compounded things

• The defendant denied the suggestion that his spouse needed to leave him to protect their children

• In the context of discussion about a divorce the defendant suggested that he loved his kids and that the witness should look at how good he is with the first child

141Clearly the defendant’s spouse was aware of the recording and was understandably seeking answers. But even in this environment, the defendant did not make any specific admission addressing the level of force, mechanism of injury, or an intent to assault his child.

H. The Defendant’s Police Interview

142The prosecution sought to admit the defendant’s statement to the police as substantive evidence at trial. Defence counsel conceded that it was admissible. The prosecution submits that the defendant’s statement to the police supports an independent route to culpability – namely, that his statements and actions on video align with the expert opinion, and are indicative of his guilt.

143On May 31^st the defendant attended the police station and met with the investigating detective on the case. It is not clear from the evidence at trial if the defendant simply showed up unannounced, or made an appointment.

144The defendant attended a room where everything was audio and video recorded. The defendant was not under arrest. The defendant was not detained. The defendant was not provided with his Charter rights to counsel. The investigating detective told him he could leave at any time and that his presence in the police station was purely voluntary.

145The defendant explained that he attended voluntarily for the purpose of understanding what was going on with the investigation into his child’s injury. He asked for patience from the detective given he had suffered a traumatic brain injury, and he was experiencing some cognitive difficulties as a result.

146The interview was recorded using high-definition video. The audio is very clear. In my view, overall, the tone of the interview was cordial, polite, and devoid of any untoward circumstance or pressure on the part of the investigating detective.

147Amongst the many things discussion on video the defendant advised of the following specific pieces of information:

• He and his spouse were high school sweethearts who had been together for fifteen years and married for the last ten years

• They got married at age 18

• He had challenges in life, his spouse was more of the financial supporter in the relationship

• Their relationship was good until the current events involving their child

• As a result of current events, he was at home without his spouse or children

• He did not abuse his child

• He did not purposively mistreat his child

• He did not do anything to cause an injury

• He had never abused either child

• He was distraught that they were gone

• His relationship with the two-year-old was the best a father could have

• His relationship with the newborn child was more challenging in that they had to figure out what the newborn needed and why he was crying

• That he began to question himself after the medical evidence was disclosed to him

148As it concerns the mechanism of injury he said the following:

• He recalled going though “checklist” when the child was upset and crying – diaper, full belly etc. in an effort to determine the cause

• The child did not like staying in one spot

• The child did not like standing and holding, or sitting and holding

• The child liked bouncing and walking back and forth

• “I may have .. the strange thing is he does not like just slow methodical bounce, he seems to prefer almost a faster pace….”

• [Using water bottle to mimic] the defendant showed a faster pace bit more with “oomph” as he described it

• “A little bit rougher” (although this answer was the product of a leading question from the interviewing detective on this critical issue)

• This seems to aid in calming him down

• This was a regular thing that he did

• “I do think I might have been a little bit too rough that day or the day before”

• “I may have bounced him a little bit too enthusiastically”

• That he was “toning it down” the movement because perhaps he was doing it “a bit too quickly”

• Nothing appeared to indicate it was too rough for the child

• The child did not present as upset after the contact

• Later the child’s eyes were rolling back, the child seemed “not present”, and the child was not reacting normally, so he took a video to show his spouse when she came home

• He showed the video to his spouse when she returned home, he sent it to her phone, and then deleted it from his phone

149After the defendant’s articulation of his physical contact, the interviewing detective confirmed that this was the defendant’s effort to describe a potential cause. The interviewing detective was fair with the defendant. He stated his acknowledgement that this was the defendant’s effort to try to explain how this might have occurred, and that it was not necessarily intentional.

150Context is always important. And it is important to recognize that at the time of the police statement the defendant had received medical information suggestive of intentional infliction of injury. The defendant had been confronted by his spouse on at least two occasions. The defendant’s access to his children had been limited. His contact with his spouse was limited. And he was not permitted to attend the hospital to see his child. The defendant clearly expressed that the reason why he wanted to talk to the police was to assist and obtain answers.

151It is also clear from the statement that the defendant had another unrelated ongoing legal matter wherein he had access to a lawyer. The interviewing detective properly avoided the issue and guided the defendant to discuss only the case that he was investigating. But the fact remains that the defendant walked into a police station, presumably having had some access with a lawyer, and still voluntarily provided information to the police.

152As it concerns the notion of reasonable doubt, and the required Griffiths/ Villaroman self-instruction on circumstantial inferences, the Crown has not proven that the only “rational inference” available from the circumstantial record is the defendant’s guilt: R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28 at para. 33.

153The defendant’s video statement to the police, properly evaluated, in the context of the ensuing circumstances, were clearly exculpatory as it concerned the specific mental intent to commit the criminal offence of assault as defined in the Criminal Code.

V. Criminal Law Framework

A. The Burden of Proof and Criminal Law Framework

154The evaluation of evidence at a criminal trial is informed by a number of well-known legal principles.

155The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

156Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman, 2016 SCC 33 at paras. 28,36 [Villaroman]. The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345.

157The defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

B. The Approach to Circumstantial Evidence

158The prosecution case is partially dependant on circumstantial evidence and circumstantial inference. Circumstantial evidence has been described as “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred”: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), at para. 89. Given the prosecution dependance on circumstantial inference, it is appropriate to apply the following guidance set out by the Supreme Court of Canada in Villaroman:

a. Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;

b. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;

c. Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;

d. The trier of fact should be alerted to unconscious efforts to “fill in the blanks” or “bridge gaps” in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;

e. When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and other “reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37;

f. In distinguishing between a plausible theory and speculation, the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38; and,

g. The Crown is required to address reasonable possibilities, not every “possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused:” Villaroman, at para. 37.

159Ultimately, the Court in Villaroman provided the following caution at paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

160I have already indicated the application of this self-instruction above as it concerns the defendant’s statement to the police. But the proper assessment of this issue requires consideration of the entire record at trial. As I expand my view to the entire record, the Crown has not proven beyond a reasonable doubt that the only possible conception of the record at trial is that the defendant is guilty.

C. The Offence

161To obtain a conviction for aggravated assault, the Crown must prove the following elements of the offence beyond a reasonable doubt:

i. that the defendant intentionally applied force to his child;

ii. That the child did not consent to the force that the defendant intentionally applied;

iii. That the defendant knew that the child could not consent to the force that he intentionally applied; and,

iv. That the force the defendant intentionally applied wounded, maimed, disfigured or endangered the life of the child.

162As set out by the Supreme Court of Canada in R v. Williams, 2003 SCC 41, at paragraph 22 [Williams]:

22 The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v. Godin, [1994] 2 S.C.R. 484 (S.C.C.), at p. 485 and Cuerrier, supra, at para. 95. . . .

163The Crown is not required to prove a specific intent to wound or maim or disfigure. The test is objective foresight of the risk of bodily harm: Williams, at para. 22; R. v. Godin, [1994] S.C.J. No 55, at para. 2

VI. Conclusion

164The Crown has established beyond a reasonable doubt that the child suffered injuries contemplated by the crime of aggravated assault.

165The defendant’s police statement is substantive evidence at trial. Whether or not I am totally convinced by everything in that statement, I certainly concede it provides proper foundation for reasonable doubt particularly given the analysis of the sourcing of the expert opinion.

166The physical contact described by the mother (during her confrontation with the defendant) and the physical contact described by the defendant in his police interview are articulations of contact that objectively would be within the subset of “normal” parental contact with newborn babies. Put another way, as explained by the defendant’s spouse when she testified, nothing about the physical contact alone would objectively suggest the risk of bodily harm. The open question remained the degree of force used during this contact.

167It is entirely conceivable that in the defendant’s attempt to soothe his child, he factually used “too much force”. The defendant’s statements amount to a concession that his actions could have caused injury. But they are also paired with a clear articulation that he did not intend to harm his child.

168Having regard to the criminal burden of proof and the guidance of R. v. W.(D.), [1991] 1 S.C.R. 742, viewed through the lens of W.(D.), the defendant’s police statement promotes reasonable doubt at stage two of the analysis.

169Having regard to the record at trial, the Crown has not proven beyond a reasonable doubt that when the defendant had physical contact with the child, he did so with the requisite mental intent for of offence of assault as defined in the Criminal Code.

170Having regard to the high burden of proof required in a criminal prosecution, the defendant is found not guilty.

Released: February 13^th, 2026

Signed: “Justice M.S.V. Felix”

Footnotes

1. 1Throughout this judgment I will use “defendant’s spouse” or “mother” interchangeably.
2. 2Nor do I find him reckless.
3. 3I will address the circumstance of an accident below. But this circumstance was not relied upon by the expert witness.
4. 4Page 3 of Dr. Nolan’s Report.
5. 5Approximately May 20^th, 2024.
6. 6This answer was the product of a leading question but acknowledged by the witness as correct.
7. 7Audio DRD January 19^th, 2026, at 12:31 PM.
8. 8To be fair, there was a voluntariness challenge to the admissibility of the statement until trial. But there is no evidence that the Crown canvassed this issue with Defence counsel. Nor was an application brought well in advance of trial to determine the issue of voluntariness. There is also precedent for certain agreements to be reached as between the Crown and Defence for the purposes of an expert opinion. Finally, I am aware of one case where the Crown sought one opinion without a contested video, and then after a ruling on Charter issues provided the video before trial for a supplementary opinion.
9. 10Audio Transcript Exhibit, page 10, lines 19-21.
10. 9The witness said a “few days into June” during direct examination and agreed with a cross-examination suggestion of June 6^th.