COURT FILE AND PARTIES
Date: February 6, 2017
PURSUANT TO AN ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE, any information that could identify any victim or witness under the age of eighteen shall not be published in any document or broadcast or transmitted in any way.
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen
And: Eglanella Lucchetto
Counsel:
- J. Bruno for the Crown
- D. Powell for the Defendant
Heard: May 16 and 17, September 28 and 29, October 5 and November 2, 2016
REASONS FOR JUDGEMENT
Melvyn Green, J.:
A. INTRODUCTION
[1] I. was four years old on March 4, 2015. He was enrolled in a pre-school program in a Toronto school. Like all the other children, he was to remain on his bed during the naptime that followed lunch. I. fell off the bed, injuring his lip. He was taken to a hospital where he received several stitches to his mouth.
[2] The cause of I.'s fall is the focus of this inquiry. It is the theory of the Crown that one of I.'s day care workers, Eglanella Lucchetto, was responsible for his fall and consequent injury. As a result, Ms. Lucchetto ("Nella") is charged with assault causing bodily harm.
[3] The Crown called a number of witnesses, including the complainant, his mother and several of Ms. Lucchetto's co-workers and supervisors. Ms. Lucchetto, the defendant, testified, as did several character witnesses on her behalf. The defence concedes that I.'s fall occasioned bodily harm and that the defendant's conduct contributed to that fall. The core issue, then, is whether the defendant's non-consensual physical contact with I., whether direct or indirect, was intentional and, if so, whether it attracts legal fault in all the circumstances.
[4] As always in criminal trials, the Crown bears the burden of proof: Ms. Lucchetto must be acquitted unless the prosecution satisfies me beyond reasonable doubt that all the essential elements of the offence of assault are made out.
B. EVIDENCE
(a) Introduction
[5] There are some factual matters about which there is general agreement. These include the chronology of the incident, the physical layout of the classroom, the daily organization of the pre-school program, and the professional roles and relationships of the employees of the day care facility. I first survey these matters. I then turn to a more detailed canvass of the evidence bearing on the actual incident and the defendant's exchanges with her colleagues following that event.
[6] The physical contact alleged to constitute an assault consumed no more than a few seconds. However, the number of witnesses, counsels' close scrutiny of their recall, and the potential significance of both distinguishing and corroborative elements of their observations demands an unusually granular review of this evidence and, as well, the testimony of those witnesses who spoke with the defendant soon after the incident and over the next couple of days. My review of the account of the investigating officer (including, in particular, a recital of particularly material portions of his interview of Ms. Lucchetto) and the defendant's own testimony follows. Finally, I summarize the evidence of those witnesses who addressed the defendant's character.
[7] Apart from identifying each on narrative introduction, I use only the first names of witnesses connected to the school, including the defendant, as this is how they consistently referred to each other when testifying.
[8] A discussion of the relevant legal principles and their application to the facts, as I find them, follows this synopsis of the evidence.
(b) After the Fall
[9] Nella attended on I. after his fall. She endeavoured to staunch the bleeding in an adjacent washroom. She then took I. to the day care office. A supervisor escorted I. to the hospital where he was joined by his mother. He was released after midnight, and returned to his day care classroom, if late, the next day.
[10] Nella returned to the day care facility only briefly on the day following I.'s fall. She submitted an accident report, as is required, and was then excused to attend on her son who was in some unrelated distress at another school. She was later advised that she was suspended and told not return to the day care facility.
[11] The police were advised of the incident and began an investigation. In time, the investigating officer called Nella, advised her of the pending charge and asked her to surrender herself. She was arrested and charged with the offence of assault causing bodily harm upon attending the station. She was then interviewed. Her statement, tendered by the Crown, forms part of the evidentiary record at her trial.
(c) The Day Care Facility
[12] I. fell off a cot in the Pre-School Room (PSR) at a public school in central Toronto. The full-day PSR program accommodates up to twenty-four children, aged from about 2½ to 4, although there were somewhat fewer in attendance on March 4, 2015.
[13] Two registered "early childhood educators" (ECEs) worked in the PSR that day: the defendant Nella and Salome Woods, who also served as a grade 1 teacher and an assistant supervisor at the school. Shamina Eshan, then a "child care aide" (CCA), was also assigned to the room, as was Jialing Feng, another CCA who was working in the PSR on a "supply" basis on March 4th. Nella reported to Michelle Noel who was then the "Centre Supervisor" of the school's Early Learning and Child Care Centre (the Centre). Salome was the senior teacher in the PSR and an assistant supervisor. Nella was in charge of the PSR when Salome served as Acting Supervisor in Michelle's absence – as on March 4, 2015.
[14] The daily routine for children in the PSR program included lunch, a visit to the washroom, and then naptime from noon until 2pm. The staff would distribute very lightweight, child-sized cots (generally called "beds"), each of which stood about three inches off the ground. Children who did not want to nap were to be given a quiet activity. The cots were collected and stored after naptime.
[15] J. was I.'s closest friend in the PSR. He too was four years old at the time. I.'s bed was near an easel close to the middle of the room while J.'s was tucked between classroom furniture along a wall. An imaginary diagonal line of approximately two to three feet separated the heads of the two boys while they lay on their beds.
(d) The Eye-Witness Evidence of the Incident
(i) Introduction
[16] Five persons who were in the PSR when the fall occurred testified at this trial: two children (I. and his friend J.) and three day-care workers (Shamina, Jialing and, of course, the defendant). I return to the defendant's account in due course.
[17] J.'s evidence was introduced by way of video statement taken soon after the event and which he, having promised to tell the truth, effectively adopted when he testified. Put delicately, both boys' evidence is less than lucid. Their examinations before me added little clarity and several layers of inconsistency. The boys had little apparent interest in the courtroom proceedings (which they could not see as they testified by way of one-way CCTV communications from another room), were less than responsive to many questions posed by counsel, had difficulty focusing, and seemed easily distracted. None of this, of course, was other than could be expected of four- or five-year-old children asked to recall events that had occurred more than a year earlier. The testimonial accounts of the adult witnesses, Shamina and Jialing, did not suffer these same reliability concerns. Neither, however, claimed to have observed the actual moment when I. fell to the floor and cut his lip.
[18] These qualifications are of potential significance as there is a factual dispute as to whether I. was jumping on his bed at the time or immediately before the defendant intervened.
(ii) The Boys' Accounts
a. I.
[19] Without even being asked, I. immediately denied jumping on the bed. Nella, he said, "was pulling on the bed when I sleeped on it, and I wasn't jumping on the bed". He hurt his lip. Nella, he continued, "said, 'That is why you are not supposed to jump on the bed' and that is not the truth … because I was sleeping on it". She pulled the bed, he said, with "her hand". He recalled falling "on the bed", with his "down [lower] lip" hitting the "side of the bed". Nella acted "on purpose", he said, "because she didn't say sorry". She "always doesn't like me", he added.
[20] Later, I. clarified that he had earlier been jumping and "afterwards he wasn't". He jumped, he explained, "because I wanted to do this show because I love doing shows … to show the teachers how I jump". I. denied kicking backwards or kicking his feet up behind him while he jumped. Asked directly whether his lip hit the bed or the floor, he twice answered "floor". Asked directly if he actually saw Nella pull the bed, he answered "I don't know" and, later, "Nope". Asked directly whether Nella had previously been a good teacher to him, I. answered, "Yeah" eight times in succession. Asked directly if he still had a good memory of the day he cut his lip, he again answered, "Nope".
b. J.
[21] J. was interviewed by the investigating officer about a week after I.'s fall. He fidgeted and appeared bored or distracted throughout the 20-minute interview. As already noted, J. adopted the contents of the videotaped interview at trial.
[22] Many of the officer's introductory questions respecting the incident were conspicuously leading. They were largely answered by J.'s mother while she held J. in her lap. She claimed to be repeating the account her son shared with her a week earlier. There is no record of anything J. earlier told his mother.
[23] Prompted by his mother to answer the officer's questions, J. eventually said that Nella flipped I.'s bed and he fell on the floor. Asked "Why Nella [would] do something like that?", J. explained that I. was "jumping on the bed". It was during naptime. I., said J., was a "really, really good friend". J. clearly wanted to return to his classroom. He was coaxed into demonstrating the incident: his mother offered him a "special" treat if he "show[ed] us" and Michelle told J. he could return to the pre-school room once he completed his demonstration. Michelle then effectively directed the pantomime that followed: "Can you show me how she flipped the bed?", she asked. "Show me how she lifted it up". J. momentarily picked up and nonchalantly dropped a thin book or brochure Michelle had placed on the floor in front of him. He repeated the gesture. He then picked it up a third time, studied the colourful picture on its cover, held it close to his face and appeared to kiss the cover. J. was not asked to clarify or explain any of this conduct.
[24] Although it is unclear how well he comprehended the question, J. testified in cross-examination that he could not remember the events which were the subject of his videotaped interview. Asked for his recall of the specific incident, J. re-affirmed that I. had been jumping up and down on his bed on the day he got hurt. He was watching I. as he lay on his side on his own bed. I., he said, was holding onto the bed and jumping pretty high up; he was standing up and holding the bed. J. saw I. fall, but he did not know or remember how I. fell: "I just watched", he said, "but I didn't see anything". He had no recall of seeing Nella when I. fell.
[25] Somewhat abruptly, J. corrected himself. Saying he had made a "mistake", J. now testified that I. had been jumping on the floor. He was "jumping too high". J. said he understood what "flip" means: it means to "flip over", he explained. I.'s bed, he made clear, "did not flip right over". He said that Michelle, the day care supervisor, wanted him to say the bed was flipped over, but that is not what happened. Again, he did not know what happened: "I didn't see I. fall. I just saw him jumping". He denied seeing Nella join I. after his fall. He could not recall Nella saying anything that day. He did not know whether any teachers told I. to stop jumping or whether any teachers were near I. when he fell.
[26] J. claimed to have "pretty good" memory of the day I. fell.
(iii) The Day Care Workers' Accounts
a. Shamina Eshan
[27] Shamina had worked with I. for about a year when he fell off the bed. I., she said, was a "nice kid but sometimes he doesn't want to listen". Some children, especially I., occasionally jumped on their beds. I. would jump on his feet while standing in the middle of the bed. When this happened, a staff member would stand close to the bed. Shamina had never seen I. jump from a floor position while holding onto the side of the bed. In any event, I. did not jump on his bed on the day of the incident.
[28] Shamina characterized her professional relationship with Nella as "very good". They did not have a social relationship. Nella, she recalled, occasionally complained about having a bad back.
[29] Shamina was developing her plans at a table in the PSR during naptime. Nella and Jialing were having a quiet, "normal" conversation elsewhere in the room. I. and J. were both half-lying on their beds, talking with each other. They were not, said Shamina, good friends at the time. She was certain that neither boy was jumping.
[30] Nella told I. to lie down. She then heard Nella say, "I'll take away his bed and he'll be on the floor and then he'll understand". Nella did not appear angry. Shamina had never previously heard Nella say anything like this. She believed Nella's words were spoken loudly enough for Jialing to have heard them.
[31] Shamina told Nella not to do it two or three times. Nella did not look at Shamina as she approached I.'s bed. I. kept talking and laughing with J.. Shamina again said, "Don't do it", adding, "He'll get hurt". By then Nella was at I.'s bed. She took hold of the foot of his cot with two hands. Fearing something dire would happen, Shamina momentarily shut her eyes and covered her ears. On regaining her senses, she saw Nella on the floor talking to I.. "See what happens when you don't sleep", Nella said. Or perhaps: "See, I told you to lay down". Other than gripping the bed, she did not see Nella do anything with it. Nor did she see how I. injured himself.
[32] I. was crying after he fell. Nella took him to the washroom. Shamina, meantime, wiped up some drops of blood on the floor near the head of I.'s bed. She reasoned that the bed was in the same position in which it was placed at the beginning of the nap period. Shamina then joined Nella in the washroom while she cleaned I.'s face. I., she noticed, appeared to have a hole in his lower lip. "Why did you do this", she asked Nella. Nella replied that she didn't think that the fall would be so hard. At Nella's request, Shamina brought some ice to the washroom.
[33] Before collecting the ice, Shamina suggested disclosing what had happened to I.'s mother. Nella, she testified, resisted this suggestion. Shamina said the two boys would report what occurred. Nella thought they would not. Shamina was interviewed by the police a week after the incident. In cross-examination, she conceded that until the morning she testified, some 14 months after the event, she had said nothing to the police about her exchange with Nella regarding disclosure of the incident.
[34] Nella escorted I. from the washroom. She returned without I. a few minutes later and explained that he was at the Centre's office. Shamina asked Nella if she told Salome, then the acting supervisor, about what had happened, and Nella replied, "No". Shamina briefly attended the office. Salome was trying to take I. to the hospital. When Shamina returned to the PSR, Nella told her she would tell Salome when she returned from the hospital. Salome later visited the PSR. After she left, Shamina asked Nella if she had told Salome everything. Nella affirmed that she had. She asked about Salome's response. Nella said that Salome told her that "Shamina's not going to say anything". Shamina testified she was "shocked" to hear this.
[35] Historically, when I. jumped on his bed Nella would talk to him or pat his back. This approach was consistent with the Centre protocol, as confirmed by Michelle Noel, the Centre supervisor. Shamina herself had previously cautioned I. that he could fall off the bed and hurt himself by jumping. I. returned to jumping on his bed within a few days of the incident that led to his lip injury.
b. Jialing Feng
[36] Jialing had only begun working in the PSR since January of 2015. She was a "floating" or "casual" rather than full-time or facility-dedicated daycare worker. She did not have a close relationship with Nella.
[37] After lunch on March 4, 2015, the children visited the washroom and then returned to the PSR for their naps. I. was jumping on his bed, as he had on earlier occasions. She could not recall any other children jumping that day, although some had done so in the past. The teachers were very aware that a jumping child could fall off a bed and hurt him- or herself. There was a clear "no jumping on the bed" rule, and the teachers routinely directed students not to do so. "We always reminded them", Jialing said.
[38] At some point, Jialing heard Nella tell I. to "stop jumping". Jialing thinks I. stopped jumping, but she is not sure. Nella and Shamina were standing and quietly chatting while Jialing's attention was focused on comforting a boy who had recently been transferred from the Toddler Room to the PSR. She heard Shamina say, "Nella, don't do that", and then heard I. crying. Her view of whatever happened was partly obstructed. When she looked up she saw Nella standing beside I., covering the area of his mouth. "What happened?" she asked Nella. "I bumped", said Nella; if there was more to Nella's reply Jialing could not remember it. Nella then asked Shamina to get some ice. She did, bringing it to Nella who was in the washroom with I.. J., meanwhile, remained on his bed saying nothing.
[39] Jialing did not see Nella or I. again that day. She did not see I.'s injury. She did not see any blood in the PSR. She never saw or spoke with Nella after the incident.
(e) The Immediate Aftermath
[40] Salome was the acting supervisor in Michelle's absence on March 4th. She was in the office when Nella appeared with I.. He had an icepack on his lip and was bleeding heavily. All the Centre staff have completed First Aid training, and all are obliged to immediately administer First Aid when required – as Nella had done. A staff member who witnesses an accident involving a child is also statutorily required to file an Accident Report. Salome understood that Nella had done so.
[41] Nella asked Helen, another assistant supervisor in the office, to call a taxi as they could not get through to a 911 operator. At Salome's request, Nella showed her where I. fell – right beside his bed. Asked to point out the blood, Nella explained that Shamina had already cleaned it up. Salome taxied I. to the hospital at about 1:30pm and remained with him for a couple of hours. He did not cry throughout the ordeal.
[42] Seven stitches were required to close the wound in I.'s lip. He was under conscious sedation at the time. I. was not released until about 1am and, according to Salome, he returned to the PSR classroom later that day, March 5th, sometime after Nella had already left to attend to her own son. According to I.'s mother, the wound healed within a couple of weeks, leaving a small scar under I.'s lower lip. There is no functional compromise of his lip.
[43] Salome explained that a staff member who witnessed a child have a serious accident was required to report it to the "serious occurrence" line, and management would then be notified. There was no obligation to call the Children's Aid Society (CAS) unless the "accident" was a product of physical "abuse" by an adult. Nella told Salome that I. had fallen off the bed while jumping and hurt his lip – circumstances that did not call for notification of the CAS. The "serious occurrence" line was called.
[44] Salome called Nella from the hospital to inquire whether I. fell on anything. No, said Nella, he was just jumping and he fell. Later, back at the Centre, she received an emailed photograph of I.'s lip injury from his mother. Seeing what appeared to be a puncture with no sign of dental penetration, Salome returned to the PSR and again asked Nella if she was sure I. didn't fall on anything. No, Nella repeated, he was jumping and fell. Their exchange was "normal" and Jialing and Shamina were both present and listening.
[45] Salome had worked with Nella in the PSR for about six years. She had never heard Nella speak to the children in a loud tone of voice. It was a physically demanding job. She could not recall Nella ever lifting a child. There was one occasion when Nella was off-work for about a week due to her back. This was at least a month before the incident.
[46] Salome could not recall ever seeing I. jumping on his bed. She recalled him as a bright, energetic and "easy" boy. He started in the Infant Room before his first birthday and had been enrolled at the Centre ever since. She described his relationship with Nella as "good".
[47] Salome testified that Nella never told her that she accidentally moved I.'s bed. She also testified that she never told Nella that Shamina was not going to say anything about the incident. Salome described Shamina as "very outspoken".
(f) The Next Couple of Days
[36] Shamina testified to approaching Salome before 10am the following day, March 5th, and Nella a little later that morning. She intended to discuss the incident with them and then meet with Michelle, her supervisor, to review the incident. Salome and Nella independently told Shamina that they would speak with her during naptime. When Shamina returned from her break she learned that Nella had left for the day as a result of a call from her son's school. She and Nella have not spoken since. Shamina recalled speaking with Salome later that day. It was the only time they discussed I.'s fall.
[37] Salome testified that she and Nella spoke about I. on the 5th. Nella had already left to attend to her son by the time I. arrived that day. Salome recalled that Nella called her the next day, March 6th. She said she had been told not to come into work. "What's going on?" she asked, "It was just an accident". This was Salome's last substantive exchange with Nella.
[38] Michelle, the Centre supervisor, was not at the school on the day I. fell. However, she was called and advised that I. had been taken to the hospital with a cut lip. By the time Michelle returned the next day, March 5th, Nella had already left the Centre and, according to Michelle, the two women never spoke to each other about the event. Nella had filled out a mandated Accident Report for Michelle's sign-off before leaving. Under "Description of Accident" Nella printed:
I. was jumping on his knees and kick his feet behind him eventually losing balance moving forward & falling face first on the floor cracking his bottom lip.
Michelle testified that she declined to sign-off in the box reserved for the "Supervisor signature" as Nella's "description" was inconsistent with what she, Michelle, had been told by other staff members. In particular, Salome, she said, had told her by phone on March 4th that I. had been standing up when he was jumping on his bed. The Report, said Michelle, was also incomplete as the section titled "Treatment provided" had been left blank.
[39] Michelle grew more concerned after speaking to Shamina about the incident. She then went to the PSR to check on I.. Jialing approached her as she entered the room and, according to Michelle, told her that Nella had hurt I. by lifting I.'s bed while he was jumping on it, causing him to fall. Asked "How?", Michelle said that Jialing demonstrated Nella's actions by lifting the foot of one of the beds. (According to Jialing, whose evidence is earlier summarized, she did not see Nella touch let alone lift the bed.) Michelle had no conversation with I. that day, but she clearly recalled him being in the PSR.
[40] The CAS called Michelle. Further to their directions, she called Nella and told her not to return to work. According to Michelle, Nella was formally "terminated" on May 6, 2015.
(g) Evidence of the Investigating Officer
(i) The Defendant's Arrest
[41] Det. Cst. Conrad Wong was assigned the file on March 9, 2015, following a call from a CAS worker requesting a joint investigation. Wong arranged for interviews with potential witnesses, including J., at the school on March 11th. He first contacted Nella the next day, by phone. He introduced himself as a police officer and advised her of the allegations. She immediately said, "I didn't do anything to that child". He advised her that she was going to be charged with "assault causing bodily harm" and to surrender herself at 53 Division the following day. Nella repeated that she "didn't do anything". Wong told her she could consult with a lawyer or union representative. Nella agreed to attend the station the next day, and she did. She was promptly arrested and charged.
(ii) The Defendant's Statement
[42] Nella was taken into an interview room a little after 11am and interviewed by Wong and a second officer, DC Chen, over the next three-quarters of an hour. Wong explained that he had been informed that Nella lifted I.'s bed "which caused him to fall". Asked, "If that is something that could have happened?", Nella replied, "No". Asked to walk through the day, Nella explained that the class started in the playroom. They then went outside, washed their hands on coming back inside, put the beds out, and had lunch. It was then Nella's turn "to do bathroom routine" with the children before naptime. When she returned to the PSR she saw I. jumping on the bed". She "kept warning him to stop so he won't fall and get hurt". Nella then told Shamina that she "need[ed] to go and stop him before he falls". Shamina "didn't say anything".
[43] Nella's plan was to "try and hold his legs … and bring him down to the bed and let him know that this is how he [is to] rest on the bed". She "wanted to prevent him from falling 'cause it won't be the first time that he falls out of bed". When this happened in the past, I. just "gets back on the bed". Asked why no injuries resulted from these earlier falls, Nella clarified that she "didn't say there was no bruises"; yes, he had "been injured before". Asked "how many times" she had previously "put in an accident report" for I., Nella replied, "not often". Asked again, she said, "I don't know".
[44] Nella explained that I. had been jumping on his knees, not his feet, while holding onto the frame of the bed: "He would land on his knees and jump up with his feet up above his back". The exchange below followed:
Lucchetto: When he's holding onto the frame he jumps with his knees. He's going up. His whole body is going up and his legs are stretched out and bent over from the knees.
DC Wong: So, is he almost like vertical?
Lucchetto: No, not yet. But that's what I was hoping it wouldn't get to. That's why I would say I would put his legs down and show him this is the rest time now.
DC Wong: Okay.
Lucchetto: I didn't want him to flip over.
DC Wong: Okay. So, if he's gonna flip over, right, his back is gonna go into the ground first. Not his front but his back.
Lucchetto: Yes, but he didn't fall that way. He didn't fall over. He fell forward.
That's how he fell. That's how he landed. Forward off the bed His body was still practically on the bed. … I don't know how he did it.
DC Wong: But … you were concerned about him flipping [over] not for him going to the front.
Lucchetto: Yes, I think that would even worse 'cause I didn't know where his body would land, right?
Pressed further about her account, the defendant allowed that she was "omitting some things because … my lawyer told me to say nothing and I feel like I've said so much already".
[45] DC Wong then suggested to the defendant that she "actually told [her] co-worker that [she] was going to lift the bed". "That's not true", Nella replied. Wong then succinctly set out his investigative theory:
DC Wong: I'm going to suggest to you that [a second] co-worker of yours also heard [the first] co-worker say "no, don't do that", knowing full well what was gonna happen. And Nella, I think, if we want to paint a picture here, okay, I have the pictures pretty clear that I. was jumping as he was on the bed, right, a little lift up from the bed is gonna cause him to bounce forward, which would have resulted in the injury that he received, which was to the bottom of his lip.
Lucchetto: There was a little lift but not by me. Well in a sense not planned. It was an accident … because when I approached the bed my foot got lodged …
DC Wong: Your foot got lodged?
Lucchetto: Yes, I had a bruise for four days over here.
DC Wong: Are you suggesting that you lifted it with your foot then?
Lucchetto: No, I didn't lift it. My foot went under when I approached the bed.
DC Wong: [But] we're not talking about a very big bed here, Nella.
Lucchetto: No, that's why it's possible.
DC Wong: But even if you did do that…
Lucchetto: I heard the bed move … but I don't know how it moved. … I just heard the bed on the floor so I don't know if it went forward or went up when my foot went there. So, I never got a chance to grab him. I never got that moment to just hold him there 'cause he flew forward.
DC Wong: Your intention wasn't to hold onto him, Nella.
Lucchetto: Yes, it was. It was to prevent this from happening.
DC Wong: Are we really talking about an accident then?
Lucchetto: Yes.
[46] DC Wong's obvious skepticism informs much of his continuing interrogation:
DC Wong: Now I don't know if it's running through your mind that you're trying to make it seem like it was an accident.
Lucchetto: No.
DC Wong: And then for you to go and tell the supervisor and [other staff] that he just fell. It also shows your intent to cover something up.
Lucchetto: No. Because I did tell them afterwards.
DC Wong: You told them he fell off the bed but you didn't tell them that you lifted the bed or that the bed was lifted.
Lucchetto: No, because I never lift[ed] it.
DC Wong: But you … just said that you accidentally may have lifted the bed.
Lucchetto: Okay, yes, I'm sorry. The way you stated is like I lifted the bed and I didn't touch the bed with my hands.
DC Wong: Well, regardless, if you used your hands, your foot or any part of your body to lift that bed.
Lucchetto: But it wasn't intentional. [Inaudible] accident.
DC Wong: Well how do you explain that it wasn't intentional when you go and tell your co-worker that you're gonna do it?
Lucchetto: I didn't tell her that. That's a lie.
DC Wong: So now you're telling me everybody else is wrong. Why did you lift it up …
Lucchetto: I didn't.
DC Wong: … with your foot?
Lucchetto: It was an accident. My foot went under when I approached the bed. I didn't intend for my foot to go there. … I didn't put my foot there. I walked towards the bed and accidentally went under. I didn't purposely put my foot there.
In answer to DC Chen's follow-up questions, Nella explained that she was "not sure" how her foot got under the bed, that it was her right foot, and that she didn't know if the bed lifted or moved forward. The bruise on her ankle had since disappeared. She would have taken a picture of the bruise had she been aware of its potential significance.
(h) The Defendant's Testimonial Account
[47] The defendant's testimonial account hews closely to the narrative advanced during her interrogation by DCs Wong and Cheng some 18 months earlier.
[48] Nella was 52 in March 2015. She a single mother whose then nine-year-old special needs son was at a different school. She had an ECE diploma and had worked in the child day care field for 27 years. She knew I. well. He had been in the "Toddler Room" the previous year and entered the PSR in the fall of 2014. In Nella's view, she and I. got on well.
[49] Nella returned to the PSR after completing the after-lunch bathroom routine with the children on March 4th. She was in charge of the program that day as Salome was the acting supervisor in Michelle's absence. The lights were turned down for naptime and the children were lying down. I., however, was jumping on his cot, as he did a couple of times a week. Occasionally other children also jumped on their beds. The typical staff response was to tell the child to stop or sit beside them. Sometimes that was sufficient.
[50] Nella told I. to stop two or three time. He stopped jumping as she approached his bed, so she returned to checking attendance. J. and I. appeared to be wordlessly "playing a game with each other". They were good friends and sometimes chased each other around, to the staff's consternation. Nella could hear I. jumping again as she checked attendance. He was not talking. Nella looked at him. "I.", she said, don't jump. You'll get hurt". She repeated her words, but to no effect. It appeared that I. was trying to do a handstand, holding onto the bar or frame at the top of his cot while kicking up and harder with each effort. Nella feared he would fall forward off the bed and hurt himself. She wanted, she says, to grab I.'s legs mid-arc and bring him safely down to the bed. She shared this intention with Shamina. If Shamina said anything in response, Nella did not hear it.
[51] Nella's right foot accidentally went under the end of his bed as she approached I.. She was then bending over and trying to catch the boy's legs. As a result of her foot's contact with the bed, I. fell forward just as she reached for him. She could not say positively whether the bed lifted or even moved as a result of the unintentional contact. However, Nella acknowledged responsibility: there was undoubtedly a causal connection between her foot's physical contact with the bed and I.'s fall. Nella had caught her foot under a bed at the Centre on other occasions, as, she said, had other staff members.
[52] I. banged his lip on the floor as he fell, put his hands over his mouth and began crying. Nella put her arms around I.'s shoulders to comfort and support him as he got up. "See, I.", she said, "this is what happens when you jump on the bed". Only then did she see that I. was bleeding, although not profusely.
[53] Nella tried to wash I.'s face in the PSR sink, but it was too tall. She then took I. to the washroom, just outside the classroom, that contained child-proportioned facilities. I. had been covering his mouth and crying. It was only as she rinsed his face that Nella realized the gravity of his injury and that stitches might be required. She asked Shamina to collect some ice which Nella applied to I.'s lip. She then escorted I. to the office when the bleeding stopped. Nella reported I.'s fall from the bed and likely need for stitches to the assistant supervisors in the office, Salome and Helen. Salome left in a hospital-bound taxi with I. within about 10 to 15 minutes.
[54] Salome called Nella while she was still in the office and asked her what had happened. "I. was jumping on his cot and he fell", she said. Nella did not then tell Salome about her foot getting accidentally caught under I.'s bed and causing him to fall. The immediate concern, she explained in cross-examination, was I.'s health and care. However, she says she did tell Salome about her foot making contact with the bed on her return from the hospital, just as the beds were being put into storage. Nella asked Salome if she would be suspended. Teachers, she explained, had been suspended "for less", including purely accidental occurrences. According to Nella, Salome gave Nella a hug and told her not to worry, it happens all the time.
[55] The next day, March 5th, was particularly busy as Nella was mentoring a college student on top of her regular duties. Her son's school called mid-morning to advise that her son had a fever and was throwing up. Soon after, Nella heard Michelle's voice on the PA saying she needed to speak to Salome before she left. Salome authorized Nella to leave to collect her son after wrapping up the mentoring session.
[56] Before leaving, Nella completed the Accident Report, gave it to Michelle and inquired as to why Michelle wanted to speak with her. Michelle, she says, instructed her to take care of her son, and that they would talk later. Nella acknowledged that the Accident Report was not complete as she had not filled in the sections pertaining to I.'s date of birth and "Treatment provided". Nella also acknowledged the absence of any reference to her foot being under the bed. She denied purposely omitting this part of the account; she just "didn't think to put it in". She had been told in the past that her reports were too lengthy and to keep them brief.
[57] Michelle called Nella that evening and told her not to return to school. Some days later, the police called to advise her that she was going to be charged. She attended the station, as directed, where she was arrested and interviewed by the police.
[58] Nella was persistently, but fairly, cross-examined as to why, on her own description of the events, she had not pursued a less intrusive strategy than grabbing I.'s legs, such as redirecting or distracting him. Nella agreed that there were other means of stopping a child from jumping on his cot other than physically intervening. She had earlier approached I.'s bed. She had already told him to stop on four or five occasions. These efforts did not exhaust the range of alternative approaches, but the immediately pressing issue was I.'s safety, not his failure to rest or follow class rules. There was a very real risk, as she then perceived it, of injury, of I. falling off the bed and harming himself, if she did not promptly physically intervene. Her purpose was to protect I., not to harm him. She had not, she says, intentionally lifted or moved the bed with her feet or her hands or otherwise intentionally endangered I..
[59] Nella denied:
- telling Shamina that she was going to teach I. a lesson by pulling away his bed and causing him to fall;
- that Shamina asked her why she "did that";
- telling Shamina that the she didn't expect I. to fall as hard as he did;
- telling Shamina that she, Nella, would tell Salome the "full story" later;
- that Shamina told her, Nella, that she had better disclose her role in I.'s fall as he and J. inevitably would.
Nella could not recall asking Shamina to do anything other than get some ice for I.'s lip. Specifically, she did not ask Shamina to clean up the blood on the floor by his bed. She had, Nella testified, not seen any blood on I.'s bed, on the floor or on I.'s clothes. She believed the bleeding had abated by the time Salome first saw I.. Shamina, she said, told her while she was tending to I. in the washroom that she had cleaned up some blood on the floor. Nella described her prior relationship with Shamina as "good".
[60] Nella confirmed that she suffered from chronic back issues, primarily aggravated by lifting and prolonged bending. She had not thought to photograph the ankle bruise she reported to the police. In any event, she was dealing with her ill son on the evening of March 4th.
(i) Additional Topographical Evidence
[61] Katie Gonzalez was called as a character witness for the defence. Her evidence in this regard is summarized below. However, in the course of her cross-examination she touched on certain physical properties of the PSR that bear on the reliability of the defendant's account of the events of March 4th.
[62] Ms. Gonzales' children had been in Nella's classes at the Centre's day care program early in Nella's career and she herself had served as Nella's supervisor at the school for several years. Asked by Crown counsel about the beds in the PSR, Gonzales volunteered that she was very familiar with them. They were of very light weight, she said. Further, she herself had caught her leg and also tripped on the same beds. She also had witnessed children fall off the beds on her watch.
(j) The Character Evidence
(i) Introduction
[63] As already noted, the defence called four witnesses to testify as to Nella's good character. The Crown re-called Michelle Noel in rebuttal.
(ii) Defence Character Evidence
a. Fabio Vacca
[64] Mr. Vacca is a restauranteur. Nella had been his daughter's day care worker six years earlier, when she was a three-year-old. Back then he would sometimes talk other parents who, like him, dropped off their children every morning. People, he noted, generally talk about the negative traits of others, not the positive ones. He had never heard a parent say anything negative about Nella.
b. Aster Fessahaie
[65] Ms. Fessahaie had served at Nella's supervisor at the school for about two to three years near the beginning of Nella's teaching career, from around 1987 through 1989. She was then promoted to other positions including, ultimately, that of a District Consultant for the City of Toronto, overseeing City-managed child care, nursery school, drop-in and similar programs. She was now retired.
[66] In 2012, Fessahaie returned to Nella's school as a District Consultant for the City of Toronto. The Centre day care program was part of her bailiwick and she had routinely attended its child care facility several times a year over the previous ten years to address a variety of concerns. She had renewed her relationship with Nella in this capacity, observing her perform her professional duties as part of her, Fessahaie's, regular program assessment. As a consultant, Fessahaie was confident she would have been informed of any negative assessments of Nella within the school community. There were none. In response to a question posed in cross-examination, she testified that Nella's name had never been reported to her with respect to any "serious occurrence" at the school. As a consultant, she was unaware of incidents involving children jumping on their beds during naptime. Physical intervention, she agreed, would be a "last resort" in responding to such situations but, she allowed, it depended on the child, the circumstances, and the "scenario".
c. Katie Gonzalez
[67] As noted, Ms. Gonzales had been the equivalent of an assistant supervisor in Toronto's day care program. She served as Nella's supervisor at for several years preceding November 2001, when she moved to another school. Her children also attended the Centre during Nella's tenure there. Gonzalez retired in June 2015.
[68] Gonzales testified that the Nella's reputation among parents, teachers and staff was very positive in the years she was part of that community. Although they saw each other a few times a year, Gonzalez allowed that she could not authoritatively comment on Nella's reputation in the same community in the 15 years since she, Gonzalez, had left the school.
d. Yordaos Daniel
[69] Yordaos Daniel is a father of three sons. All of them had at some time been in Nella's class, beginning about 14 years earlier and extending, in the case of his youngest child, until about two years before he testified. Daniel always picked up his children after school. He would speak to other parents at these times. Nella's reputation in this community, he testified, was that of a kind, friendly and good teacher.
(iii) Crown Character Evidence
[70] Michelle Noel was recalled as a character witness on behalf of the Crown. Michelle had been in the child care program supervisor at Jessie Ketchum for the last three years of Nella's employment. Some parents and other staff members, she said, were unhappy with the way Nella spoke to them or the children. One parent said that Nella had raised her voice and another expressed a concern about his or her child transferring into Nella's class. Other parents had no concerns and some got on well with Nella. Michelle had not documented any of the complaints, nor could she remember the complainants' names.
C. ANALYSIS
(a) Introduction
[71] Ms. Lucchetto, the defendant, is charged with assault causing bodily harm. The key inquiry here is with respect to the occurrence of an "assault" – the intentional application of force, directly or indirectly to another person without that person's consent – not whether bodily harm resulted. The case against the defendant is chiefly premised on the evidence of eye-witnesses to the circumstances surrounding the I.'s fall, evidence of the defendant's conversations and conduct following the alleged assault, and aspects of the recorded evidence of her exchanges with the police upon her arrest. None of the four eye-witnesses called by the Crown testified to having actually observed the defendant do anything that can, without inference-drawing, be said to amount to directly touching I. or moving or lifting his bed. The defendant testified and denied any intentional application of force and, thereby, the commission of an assault. In addition, a number of character witnesses were called, most by the defence and one, in rebuttal, by the Crown.
[72] The allegations and their evidentiary foundation prompts consideration of several domains of legal doctrine. Four warrant introductory attention. The first of these is substantive: the meaning of "assault" in law and, in particular, the mental element or intentionality required to establish the offence. The remaining subjects are all facets of the law of evidence – the rules governing the receipt, utility and appraisal of evidence so as determine "the facts" essential to any substantive adjudication of whether the Crown has acquitted its burden and the standard of persuasion to be applied to this exercise. The inconsistent and sometimes directly contradictory accounts of the various witnesses compel an assessment of each witness' credibility – an evaluation of who and how much to believe and whether their evidence, or that of the defendant alone, leaves a residue of reasonable doubt respecting her criminal blameworthiness. The indirect or circumstantial nature of the evidence bearing on the alleged force used by the defendant and her verbal exchanges both immediately before and in the period after the incident raise further areas of evidentiary concern, focusing especially on the inferences that may reasonably be drawn and their probative worth. Finally, the character evidence adduced by both parties, while thin evidentiary gruel at best, must still be properly parsed and weighed.
[73] I turn then to tackling the law with respect to each of these considerations: the meaning of assault and the rules controlling the fact-finding project in cases, as here, in which the assessment of credibility and the application of the doctrine of circumstantial evidence are crucial to a legally correct determination, and in which ostensible character evidence has also been led. These are, in effect, the legal rules that govern my approach to a proper appraisal of the evidence and whether, at the end of the day, the facts distilled from that evidence are sufficient to make out the offence of assault causing bodily harm.
(b) The Governing Law
(i) The Offence of "Assault"
[74] To establish the offence of "assault", the Crown must prove beyond reasonable doubt that the defendant intentionally applied force, directly or indirectly, to I. without his consent. The absence of "consent" is not at issue. As regards the element of "bodily harm", in Ontario the Crown bears no burden to establish that any physical or psychological trauma flowing from an assault was intended or subjectively contemplated; the test, rather, is objective: that of reasonable foresight of harm generally, not the specific type of harm that may have been occasioned by the assault: R. v. Nurse (1993), 83 C.C.C. (3d) 546 (Ont. C.A.). As earlier noted, defence counsel has conceded that the defendant's conduct contributed to I.'s fall and, thereby, the injury that followed. The core issue, then, is the defendant's intentionality: has the Crown proved that Nella, as required by s. 265(1)(a) of the Code, "applied force intentionally" to I., whether directly or indirectly? Answering this question permeates much of the ensuing assessment of the evidence and its application to the offence charged. However, in the somewhat unusual circumstances of this case a related issue invites a preliminary inquiry.
[75] The incorporation of the word "intentionally" in the very definition of the offence imports a very high level of mens rea – the requisite mental element that, along with the actus reus, or physical act – must be adequately established to ground a finding of guilt. Careless conduct, for example, will not suffice. Recklessness will. That much is clear. What is less clear is whether a claim of "accident", as here advanced by the defendant, amounts to a denial of the mens rea (the mental element ordinarily conveyed by the word "intentionally") or the actus reus (by virtue of an accidental act being arguably involuntary).
[76] There is little authority that bears directly on this legal conundrum. That may well be because the ultimate result is likely to be the same no matter which analytical lens is applied. In The Queen v. George, [1960] S.C.R. 871, at 890, Ritchie J., spoke of the "intentionality" requirement in the offence of assault as describing acts that "are not done by accident or through honest mistake". The British Columbia Court of Appeal has at least twice adopted this definition: R. v. Dawydiuk, 2010 BCCA 162, 253 C.C.C. (3d) 493, at para. 29; R. v. D.J.W., 2011 BCCA 522, 282 C.C.C. (3d) 352, at para. 70.
[77] A relatively common illustration of a similar approach is found in the treatment of sudden responses or "reflex actions" held to negative the necessary intention for assault by virtue of their involuntary nature. (See, by way of illustration, the discussions in R. v. Mullin, (1990), 56 C.C.C. (3d) 476 and R. v. Condon (1992), 323 A.P.R. 142 (Nfld. P.C.).)
[78] In referring to reflexive behaviour or accidents, some commentators have fairly pointed out that, "it could also be argued that acts falling into this category are involuntary, thus negating the actus reus [as opposed to the mens rea] of the offence": M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law, 4th Ed., LexisNexis, 2009, at 800, n. 5. This approach is consistent with more than 30 years of evolving jurisprudence that, as concisely summarized by Professor Don Stuart, "emphasiz[es] that there can be no criminal liability for actions which occur involuntarily": Canadian Criminal Law, 6th Ed., Thomson Reuters, 2011, at 107. While ordinarily addressed in cases raising the defence of automatism, the principle is of much broader import. For example, in Rabey v. R., [1980] 2 S.C.R 513, at 522, Dickson J. (dissenting, although not on this point), observed that,
[I]t is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. … [T]he Crown always bears the burden of proving a voluntary act.
This proposition was expressly endorsed by the Supreme Court in R. v. Parks, [1992] 2 S.C.R. 871, another case dealing with the "defence of automatism". La Forest J., writing for the majority, underscored the universal nature of the core principle:
Although spoken of as a "defence", it is conceptually a sub‑set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. [Emphasis added.]
[79] While the Supreme Court shifted the burden to a defendant claiming a "defence of automatism" in R. v. Stone, [1999] 2 S.C.R. 290, it made clear that "voluntariness, rather than consciousness, is the key element" as it is the former "amounts to a denial of the voluntariness component of the actus reus". The approach taken in R. v. Stone has attracted academic criticism (see D. Stuart, supra, esp. at 110) and some modest expressions of judicial dissatisfaction (see, for example, R. v. Luedecke, 2008 ONCA 716, 236 C.C.C. (3d) 317). In any event, as affirmed in R. v. Luedecke, supra, at para. 53, "[c]onduct that is not voluntary cannot be criminal".
[80] Most importantly, in the very next paragraph, Doherty J.A., writing for the Court, notes that,
A claim by an accused that his or her conduct was involuntary and should result in an acquittal for that reason can arise in a variety of very different circumstances. Automatism is the legal term used to describe [but] one specific kind of involuntary action. [Emphasis added.]
The potential dangerousness arising from disassociative states linked to this "one specific kind of involuntary action" (that is, automatism) gives rise to public concerns that are not dissimilar from those associated with those "mental disorders" captured by s. 16 of the Code. There is, thus, some policy-based symmetry to transferring the legal burden to the automatism claimant, just as the Code requires in the case of those accused positively advancing a defence of mental disorder: s. 16(2). The burden to prove the actus reus, and its volitional nature, remains firmly on the Crown in all other scenarios implicating involuntary action. A straight and sober, physically and mentally fit man who slips on black ice and accidentally strikes a nearby child as he falls is unlikely to have the requisite intention to be found guilty of assault, but he is just as unlikely to have committed the requisite physical act by virtue of the involuntary nature of his conduct. And where at issue, it is the Crown's onus to establish the voluntary quality of the impugned act.
(ii) Credibility
[81] As in many trials, adjudication of the central debate turns largely on an assessment of the credibility of the witnesses, including, since she testified, the defendant. This case is not reducible to the he-say/she-say simplicity of many such contests, but, in the end, it is the trustworthiness of the competing evidence that must be weighed. The defendant says her conduct leading to the complainant's fall and injury was accidental, and therefor free of criminal fault. The prosecution asserts that the defendant's account is incapable of belief and that the sole reasonable inference emerging from the testimony of the credit-worthy witnesses called by the Crown establishes that I.'s fall was a result of the defendant's intentional or reckless application of force.
[82] The key inquiry, as noted, is with respect to the defendant's intention when she made physical contact with I. and/or his bed. This inquiry compels a careful evaluation of the credibility of the witnesses on both sides of the central divide. However, resolving credibility contests in a criminal trial must be reconciled with the presumption of innocence and the collateral burden on the Crown to establish the physical and mental elements of the offence charged beyond any reasonable doubt. It is not a question of which account is believed or whose evidence is preferred. Rather, the question is whether, at the end of the day, there remains any reasonable basis to doubt the inculpatory force of the Crown's case.
[83] The rules governing such adjudications in a criminal context are well settled. R. v. W.(D.), [1991] 1 S.C.R. 742 remains the seminal decision. As said by the Supreme Court in R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 9, R. v. W.(D.), "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". Like any veteran trial judge, I have had ample occasion to set out the appropriate analytical scaffolding. The case of R. v. Santos-Medeiros, 2015 ONCJ 396, at paras. 62-65, affords one such example. Stripped of reference to the authorities there cited, and somewhat abbreviated and revised, the relevant passages follow:
[84] An evaluation of the credibility of the narrative witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct facets or dimensions of creditworthiness – honesty and reliability. The former, "honesty", speaks to the truthfulness, sincerity and candour of a witness' evidence while the latter relates more to factors that bear on a witness' perception, memory and communication. Both considerations impact on the trustworthiness – the accuracy and believability – of a witness' account.
[85] It matters not that the account of an incriminatory witness, or any combination of them, is preferred or found more probable than that advanced by an accused. The immutable standard is that of proof beyond reasonable doubt. Whatever its moorings, the Crown's failure to crest this hurdle necessarily translates into acquittal. R. v. W.(D.) and its many progeny make clear that, irrespective of its source, so long as there remains a basis for reasonable doubt respecting the veracity or correctness of a vital element of an inculpatory account an accused must be acquitted even if his or her evidence is entirely rejected or even if he or she elects not to testify.
[86] A judge presiding, as here, at a judge-alone trial must, like every trier of fact, assess the credibility of every witness – including that of a defendant where, as here, she testifies – in the context of all other evidence and not in isolation. A judge may, with reason, accept none, some or all of the evidence of any witness and accord different weight to different parts of the evidence that he or she does accept.
[87] A foundation for reasonable doubt may be found in the evidence of any witness or combination of witnesses or in the absence of probative evidence. So too, a finding of guilt may be safely grounded on the evidence of a single witness – if sufficiently credible and persuasive to meet the requisite standard for such verdict. Reasoned acceptance of an inculpatory account may itself afford a proper basis for rejecting contrary defence-supportive testimony.
(iii) Circumstantial Evidence
[88] Five persons were in the pre-school room when something happened that caused I. to fall. Other than the defendant, none testified to actually witnessing the defendant lift or otherwise move the bed or touch I.. In regard to this critical element of the allegations, their evidence is circumstantial – that is, evidence from which the Crown invites me to infer that the defendant precipitated I.'s fall by intentionally or recklessly applying force to I., either directly by touching him or, more likely, indirectly by physically manipulating his bed. To be clear, I.'s fall is not at issue, nor that his fall resulted in the injury to his lip, nor, for that matter, whether some act of Nella's caused his fall.
[89] What is at issue, and what must proved beyond reasonable doubt to secure a finding of guilt, is the Crown hypothesis that Nella intended to trigger I.'s fall: in short, and as framed by the factual circumstances and competing theses in this case, that Nella's physical contact with I.'s bed was not accidental or inadvertent but, rather, a conscious, indeed deliberate, effort to provoke I.'s tumble to the floor. In support of this inference, the Crown relies on the admitted causal nexus between Nella's conduct and I.'s injury and, most importantly, the evidence of several witnesses as to the Nella's conduct and assertions preceding the fall. The prosecution further points to Nella's behaviour after the fall – her limited disclosure and evasions, as the Crown paints it – as further evidence, through the lens of consciousness of guilt, from which buttressing inferences of Nella's intentionality may be inferred.
[90] While the principles controlling the application of circumstantial evidence are well settled, their rationale, founded on venerable concerns respecting the risk of dilution of the presumption of innocence, endure. As recently said by a unanimous Supreme Court in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001, at para. 27, "the basic concern … — the danger of jumping to unwarranted conclusions in circumstantial cases — remains real". Although directed to the task of instructing a jury in cases involving prosecutorial reliance on circumstantial evidence, the following passages from R. v. Villaroman, supra, at paras. 30, 35 and 41 (citations omitted), are of universal application:
[I]n 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.
In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts …. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[T]o justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
Here, unlike many prosecutions dependent on circumstantial evidence, the defendant's testimony affords an evidentiary foundation to which any trier must pay heed in assessing the incriminatory value of the Crown's case. But the here-relevant point of Villaroman is that even were I to totally reject Nella's evidence I would still be obliged to consider and assess any rational alternative to guilt before so pronouncing.
(iv) Character Evidence
[91] Persons charged with criminal offences are not tried on the basis of their character. Accordingly, this species of evidence is relevant only in so far as it is germane to a fact in issue. Witnesses speaking to a defendant's character are thus restricted to addressing a defendant's general reputation in a defined community for relevant character attributes, typically honesty and a disposition that renders unlikely the defendant's participation in the offence charged. A witness' personal opinion is of no moment. Once a defendant's character is put in issue by the defence, the Crown, as it has in the instant case, can call evidence intended to rebut the picture of credibility and integrity painted by the defence character witnesses. See, generally, A.W. Bryant, S.N. Lederman and M.K. Fuerst, The Law of Evidence in Canada, 3d Ed., LexisNexis, 2009, at pp. 622-42.
[92] In all, I find the cumulative evidence of the defendant's character led in this case to be of virtually no probative value and do not intend to return to the reputational purpose for which it was purportedly adduced. While I do not doubt the sincerity of the witnesses, I find the evidence of each of them variably vague, dated, shallow and unenlightening. None of the witnesses for either party addressed Nella's reputation for honesty and, other than a general respect by some for her teaching capacity, I am left with no real sense of those character traits that might be germane to the charge of assault on a child in one's care. The evidence of the single witness called by the Crown, Michelle Noel, is no more helpful, consisting of several ambiguous vignettes rather than her reputation-based opinion as to potentially relevant attributes of Nella's character.
(c) Assessing the Evidence
(i) Introduction
[93] Although the rule is more honoured in the breach, it is generally considered improper to refer to the defence position as a theory. Such characterization is inimical with the presumption of innocence and risks being construed as imposing a burden on the defence. The Crown, of course, is required to prove its case and usually one consonant with a theory culpability. The defence need do nothing more than plead not guilty.
[94] The Crown theory is simple enough: Nella was annoyed by I.'s jumping and frustrated by his persistent defiance of her instructions. She thought it time to teach him a lesson by lifting or moving his bed so as to provoke a fall and thereby deter him from recurrent misbehaviour. She did not anticipate the force of the fall or its consequence, but she did intend to apply force indirectly to I. – and thereby committed an assault.
[95] The defence has advanced a counter-narrative. Nella did not intentionally touch I., directly or indirectly. Her intention, rather, was to protect him from a risk of falling and hurting himself and, in the process, Nella accidentally made contact with I.'s bed and, ironically if not perversely, caused the very type of injury she hoped to avoid. As W.(D.) dictates, if I accept the core elements of Nella's account, or if I am in left in doubt by her testimony when assessed against the landscape afforded by all the other evidence I find reliable, then I must acquit her. Even if I entirely reject Nella's version of the central incident, I must still find her not guilty if a reasonable doubt arises on the evidence of others. I can only assign guilt if I am not persuaded beyond reasonable doubt that no other verdict is rationally available.
(ii) The Crown's Case
[96] I do not intend to recite in detail the evidence I have painstakingly reviewed earlier. In assessing its probative value I draw on and critically weigh and compare what I view as the salient threads of evidence to determine, ultimately, whether the Crown has acquitted its onus.
[97] Based on the testimony led by the Crown and defence as to the events in the PSR, I am satisfied that I. was jumping on his bed, that he continued to jump after being told to stop, that Nella approached the bed, and that I.'s fall was a result of the physical contact she made with the bed. The narrow but critical area of factual conflict pertains to the nature of Nella's contact with the bed. Was her contact, as the Crown alleges the product of Nella's intentional – in both lay and legal meanings of the word – application of force? The answer is far from obvious, partly because of inconsistent testimony and partly because none of the four Crown witnesses called on this point claimed to see Nella actually lift or move the bed or, for that matter, touch I. until after he had fallen. A further challenge arises from recognition that I.'s fall from the bed and the injury he sustained comports with both the Crown and defence accounts of the events on March 4th. It is, rather, the first link in the causal chain that led to I.' wound that is here of critical concern.
[98] The chief testimonial exponent of the Crown theory is Shamina. On her evidence, Nella told her she was going to cause I. to fall by taking away his bed. Then, despite Shamina's protestations, Nella walked to his bed, placed her hands on it, and, when next Shamina looked, I. was on the floor crying. There is some modest support for Shamina's account in Jialing's recall of hearing her say, "Nella, don't do that". Even accepting the accuracy of Jialing's recall, the caution is as consistent with Nella's account of what occurred (that is, an effort to protectively grab I.'s legs) as Shamina's very different rendition.
[99] More important, in my view, are the inconsistencies between Shamina's evidence and that adduced through Jialing and the two four-year-old boys, I. and J.. I am unable to rely on most of the boys' evidence in light of the patent discrepancies in their accounts, the vacillation in their testimony, their very tender ages, their frequent unresponsiveness and easy distraction, and the effluxion of time (at least a quarter of their lifespans) between the event and their appearances in court. What I do accept, however, is their recall (recorded within about a week of the incident in J.'s case) that I. was in fact jumping on his bed on the day he fell. Jialing also recalled seeing I. jumping on his bed, and overheard Nella tell I. to "stop jumping". I simply cannot accept Shamina's repeated assertions that I. was not jumping on March 4th. Nor can I readily reconcile that denial with Shamina's own recall that she heard Nella tell I. to lie down moments before she threatened to dislodge him from his bed. If I. wasn't jumping, or at least standing up (which also does not accord with Shamina's evidence), why would Nella, or anyone for that matter, tell him to "lie down"?
[100] There are other aspects of Shamina's evidence that I find troubling. For one, her insistence that J. and I. were not good friends at the time. This, I find, is contrary to the evidence, conveyed either directly or impressionistically, by the two boys (including J.'s virtually contemporary taped account), J.'s mother and the other staff members at the Centre. Shamina also testified that Jialing was sufficiently close to hear Nella declare her intention to upset I.'s bed. She may simply have been in error, but what is certain is that Jialing did not claim to have heard any such thing.
[101] There are also elements of Shamina's account of the incident that I simply find improbable. The first is her claim that she covered her eyes and ears at the very moment of the alleged assault. The second causes me to generally question her reliability. On Shamina's evidence, a veteran day care worker who, in the witness' recall, had never done or said anything vaguely similar, not only deliberately jettisoned a four-year-old child from his bed but announced her intentions to do so loud enough for two other staff members to hear her words. I do not say that neither event could have occurred. I do say that the implausibility of each further compromises my faith in the reliability of Shamina's testimony. Salome's recall, which I accept, that she had never heard Nella speak loudly to a child in six years of working together in the PSR further enhances my concerns about Shamina's account.
[102] I appreciate that the Crown's case does not entirely rest on Shamina's testimonial shoulders. Crown counsel also relies on what she styles Nella's attempts to "cover up" her misconduct. According to the Crown, this "post-offence conduct", in lawyer-speak, is indicative of Nella's consciousness of guilt from which I can then reasonably infer her actual guilt. This body of evidence includes:
- Shamina's testimony as to Nella's resistance to disclosing the dynamics of the incident while the two of them were in the washroom with I.;
- Nella's efforts to staunch the flow of blood from I.'s lip so at to disguise or at least mitigate the extent of the damage caused by the fall;
- Salome's contradiction of Nella's accounts as to:
- her telling Salome in a relatively timely manner about accidentally moving the bed; and
- Salome telling her that Shamina would not adversely report on what had occurred in the PSR;
- Nella's apparent failure to mention her foot making accidental contact with I.'s bed
- in the formal Accident Report;
- in her accounts to other staff members; and
- until more than halfway through her police interview on the day of her arrest.
[103] Each of these warrants critical attention. By way of more general observation, I note that there are material portions of Salome's testimony that I simply cannot credit and which, as a result, cause me to view all of her evidence with caution. Most telling is Salome's assertion that over the course of the approximately seven months they co-occupied the PSR, she had no recall of ever seeing I. jumping on his bed. This assertion is of some significance given the centrality of I.'s jumping to the narrative of the alleged offence. It is also contrary to the evidence of all the other child care workers in that room, including Shamina, who singled out I. as most notorious jumper in the classroom, one whose athleticism sometimes required staff members to station themselves by the side of his bed to ensure his safety, and who returned to jumping on his bed within a few days of having his lip sutured. It is also contrary to the evidence of both boys; indeed, I., in a rare moment of testimonial enthusiasm, waxed on not only about jumping but, as well, that he jumped as a "show" to impress his teachers. I appreciate that Salome was sometimes stationed elsewhere than the PSR, but I am left with the strong impression that this was room was her primary assignment.
[104] I have already commented on general frailties in Shamina's credit-worthiness. Her testimony respecting Nella's purported resistance to disclosing the circumstances of I.'s fall is particularly unpersuasive in view of her failure to mention this exchange to any other member of the staff or during the course of her police interview about a week after the incident. It was only in the course of her cross-examination that Shamina advised that she had first shared this recollection that very morning when she attended court, more than 14 months after the event.
[105] I see no basis to draw an adverse inference from Nella's efforts to treat the injury to I.'s lip before escorting him to the office. Her response seems appropriate to the apparent trauma for someone with limited first aid training.
[106] Salome's denial that Nella ever told her that she had accidentally moved I.'s bed appears somewhat misleading. While she indeed testified to this effect, she also testified that in her final exchange with Nella, on March 6th, Nella asked her why she had been told not to return to work as "It was just an accident". More troubling, however, is Salome's denial that she ever assured Nella not to concern herself about what Shamina might say. Shamina here lends some support to Salome's account as she testified to Nella telling her about this exchange.
[107] In my view, it is Nella's apparent delay in advancing a defence of accident, by way of her foot sliding under the bed, that is most helpful to the Crown's theory – particularly the slow reveal by which this critical detail is shared with the interviewing officers.
[108] That said, some context is of assistance. Nella was undoubtedly aware that I. had suffered a "serious occurrence" injury on her watch and one for which she could well be held accountable. Even if entirely innocent (as, of course, has been her constant legal posture), she would want to minimize her role in the dynamic resulting in I.'s cut lip: yes, I. fell, but not through any agency on her part.
[109] It is somewhat disingenuous to suggest that Nella never advanced a defence of accident prior to her police interview. As already noted, Salome's evidence was that Nella referred to the incident as an "accident" a day or two after the event. And although she appears to have heard or recalled only part of the answer, Jialing testified that Nella replied, "I bumped" when she, Jialing, asked her "What happened?" immediately after I.'s fall. However, on the evidence led by the Crown Nella never directly mentioned her foot accidentally sliding under or jarring the bed until midway through her police interview.
[110] Confronted by the police following her arrest, Nella insisted she acted only to protect I. from the jeopardy that could flow from his own acrobatic behaviour. She repeatedly denied that she had lifted the bed to, as alleged, dislodge I. and thus teach him a lesson about jumping on it. Given the tenor of the interview and the absence of legal representation, I can readily understand Nella's concern to distance herself from any suggestion that she was instrumental in I.'s injury. Eventually she accepted causal responsibility, but endeavoured to insulate herself from moral, or indeed criminal, fault by inserting accident into the equation: "There was", she replied to DC Wong, "a little lift but not by me . … . By "not by me", as Nella strove to explain through the remainder of the interview and at trial, she meant that forces outside her planning, intention, or agency precipitated I.'s fall. In short, as she next said to the officers, and as she maintained throughout her testimony, "It was an accident".
(iv) The Defence Account
[111] Nella's testimonial account is internally consistent and coherent. A rambunctious three-year-old under her supervision was at risk of hurting himself by repeatedly jumping on his bed. Verbal commands to desist proved futile. She chose to intervene to protect him from the risk of falling and hurting himself. Yes, she could, with the advantage of hindsight, have taken other, intermediate steps short of physically interceding. There was, in her view, an urgency to the situation. The quality of her response is not to be "measured to a nicety", as famously said in a different but analogous context. As she hurried to I.'s side her foot slid under his bed. The nature of these cots, their low clearance and extremely light weight, amplified the impact. Other day care workers, as the former assistant supervisor Katie Gonzalez testified, had caught their legs and tripped on the same beds and children had fallen off them. The impact of Nella's foot caused I. to tumble forward. His injury followed.
[112] For all its facial attractiveness, Nella's account still strains credulity. It is not infrequently inconsistent with the evidence of other witnesses. It is, if unsurprisingly, self-serving. Some of Nella's answers appear glib and others incomplete or unconvincing. Of course, Nella, as the defendant, need not convince me of anything. The template prescribed by R. v. W.(D.), supra, at para. 28, must be applied. Framed as jury instructions, the first two directions read:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
To be clear, I do not believe – in the sense of unqualifiedly accept – Nella's evidence. I am, however, left in reasonable doubt by it. I am not persuaded that Nella intended to "teach I. a lesson" by causing him to fall from his bed. Most importantly, I am satisfied that Nella's account of the accidental nature of her physical contact with I.'s bed might reasonably be true. Whether or not then treated as an absence of the requisite intention or as a non-volitional act, the result, as earlier intimated, is the same: an acquittal must follow.
D. CONCLUSION
[113] For the reasons just elaborated, I find the defendant Eglanella "Nella" Lucchetto not guilty of the charge of assault causing bodily harm.
[114] I thank counsel for the industry and civility with which they acquitted their respective duties to the court.
Released on February 6, 2017
Justice Melvyn Green