CITATION: R. v. Palombi, 2007 ONCA 486
DATE: 20070628
DOCKET: C42518
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE and MacFARLAND JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
KARLA PALOMBI
Appellant
Gregory Lafontaine and Vincenzo Rondinelli for the appellant
Lisa Joyal for the respondent
Heard: March 15, 2007
On appeal from conviction by Justice Peter G. Jarvis of the Superior Court of Justice, sitting with a jury, dated June 23, 2004.
ROSENBERG J.A.:
[1] Ten days after the appellant and her partner brought their infant son home from the hospital, physicians discovered that the child had apparently been severely abused. On any reasonable view of the evidence, if the child was abused, his injuries must have been caused by the appellant or her partner. No one else had the opportunity to cause the injuries.
[2] Following a trial before Jarvis J. and a jury, the appellant was convicted of aggravated assault and failing to provide the necessaries of life.[^1] It is unknown whether the jury convicted the appellant as a principal or as a party to an offence committed by her partner. The principal grounds of appeal from conviction concern the appellant’s party liability. For the reasons that follow, I would allow the appeal and order a new trial on the charge of aggravated assault. I would also allow the appeal from conviction for failing to provide the necessaries of life and enter an acquittal on that charge as the verdict of guilty cannot be supported by the evidence. In light of this conclusion, I need not deal with the appellant’s appeal from her sentence of nine months imprisonment and probation.
THE FACTS
[3] The appellant’s child, Matthew, was born very premature on May 2, 2002. At birth he weighed only two pounds. On June 14, two and a half months later, he was discharged from the hospital. He weighed slightly under five pounds, was in good health and had no physical injuries. One week later, on Friday, June 21, a public health nurse
visited the apartment shared by the appellant and her partner, Raymond Staniforth. The nurse found the child to be in good health. The appellant told her, however, that the child had been crying for seven hours the previous afternoon and evening. The nurse told the appellant and Staniforth that this was not normal and that they should seek medical attention if the crying persisted. They told the nurse that they had an appointment with the baby’s physician the following Monday, June 24, but agreed to go to the hospital if the child continued to cry.
[4] The only direct evidence as to what happened to the baby from the time he was brought home to when he was seen by physicians on Monday, June 24 is provided by the appellant and her parents. Staniforth did not testify. The appellant spoke to her parents during the week before the scheduled appointment and told them the child was crying a great deal. On Sunday, June 23, the appellant’s father drove the appellant and Matthew to his mother-in-law’s house for a birthday party. While the child was irritable and crying, he thought it was because of the heat in appellant’s apartment. However, the appellant also showed her father Matthew’s left foot, which he observed to be slightly swollen and reddish/pinkish in colour. He told the appellant to take the baby to the doctor the next day. The appellant’s mother, who had observed that the baby’s foot was puffy and swollen from the knee down, gave similar advice. During the party the baby ate and slept while he was passed around from relative to relative, and cried only on two occasions.
[5] On Monday, the appellant and Staniforth took the baby to their family physician for the scheduled appointment. The appellant testified that by the time they arrived at the physician’s office, she notice Matthew’s leg was worse. The physician and the nurse who examined Matthew immediately concluded that the leg was broken. They notified the Children’s Aid Society and upon instruction, the nurse accompanied the family to the Suspected Child Abuse and Neglect clinic at the Hospital for Sick Children. X-rays at the hospital showed a number of factures and the child was subsequently apprehended by the CAS.
[6] The Crown and the defence called expert evidence concerning the cause of the fractures. The Crown paediatric radiologist identified eight injuries, comprised of fractures and abnormalities, that were caused over a period of several days. There were several injuries to the bones of both legs and a fracture of the first rib. The rib injury was significant since it was the evidence of the Crown experts that it was highly unlikely that this fracture could have been caused except through the deliberate application of great force. The Crown experts also relied upon the fact that there were so many injuries as an indication of deliberate abuse as opposed to accident.
[7] The defence relied upon the evidence of Dr. Marvin Miller, an expert in dysmorphology[^2] and paediatric bone disease. He testified that premature infants are at much greater risk for accidental fractures because they have decreased bone loading. It was his view that Matthew suffered from osteopenia, which refers to demineralization of the bones or decreased bone density. He referred to literature showing that even normal handling of premature infants in hospital can result in fractures. In his opinion, the most likely explanation for the constellation of fractures seen in Matthew was his prematurity and diminished bone loading. In other words, the fractures were likely caused simply by normal handling of the infant.
[8] The Crown experts acknowledged that premature infants do have less bone density and are at greater risk for fractures. They also agreed that Matthew suffered from osteopenia. However, they did not agree that lack of bone density could explain the many fractures, especially the fracture to the first rib. This injury was likely caused by forceful squeezing of the chest and could not have been caused by normal handling.
[9] The appellant testified and denied abusing the child or ever seeing Staniforth harm the child. She could offer no explanation for the various injuries except that on Sunday, June 23, while Matthew was lying on her chest after his 3:00 a.m. feeding, he jolted and flew off her chest. She grabbed him by the leg and brought him back. He let out a single cry and then went back to sleep. She did not hear or feel anything break. However, later that morning, she noticed that his leg was puffy. The condition of the leg did not change throughout the day and he was handled by several people at the party without incident. On the Monday morning, she noticed that the leg was red and she pointed this out to her paediatrician’s nurse when she and Staniforth took the baby for his scheduled appointment. It never occurred to her that the leg was broken until the nurse made that suggestion.
[10] A fair reading of the appellant’s evidence is that she was with her infant virtually the entire time after he was discharged from the hospital until he was apprehended by the CAS. Since Staniforth worked, the appellant was often alone with the child. There were only very brief periods when Staniforth was alone with the child, for example, when he may have awakened before her and attended to the child. The appellant was adamant that neither she nor Staniforth would have intentionally injured the child. Except for the incident when the infant bounced off her chest, she could offer no explanation for the many fractures.[^3]
ANALYSIS
Failing to Provide Necessaries of Life
[11] The Crown’s case on the charge of failing to provide necessaries of life was based on the delay in seeking medical attention. Further, as I understand it, the Crown did not rely upon the fact that the infant was crying, perhaps excessively, as a reason to seek medical attention. There was uncontradicted evidence from the public health nurse that
the child appeared normal on Friday, June 21. The Crown’s case therefore turned on the delay in seeking medical attention on the weekend, presumably because of the fracture to the leg that likely happened after the nurse’s visit.
[12] The offence of failing to provide necessaries in this case required that the Crown prove, pursuant to s. 215(2)(a)(ii) of the Criminal Code that the delay in treatment endangered the child’s life or was likely to cause the health of the child to be endangered permanently. In his charge to the jury, the trial judge suggested that there was no medical evidence to support the failing to provide necessaries charge:
As I recall there was no medical opinion about whether or not this delay might have had the effect of causing a risk of permanent endangerment to the life or health of Matthew.
[13] In her helpful submissions, Ms. Joyal, counsel for the Crown, referred us to the testimony of the Crown’s principal expert witness, Dr. Michelle Shouldice. Dr. Shouldice testified that if a broken leg is not properly treated the child will very likely be in more pain, and the bone may take longer to heal and may not heal as well. Ms. Joyal fairly acknowledged that this evidence did not indicate that a delay of two or three days would cause permanent endangerment to the child’s health.
[14] The term “endangers,” within the context of the nuisance offence in s. 180 of the Criminal Code, has been interpreted by this court in R. v. Thornton (1991), 1991 7212 (ON CA), 1 O.R. (3d) 480 at 487-88, affirmed 1993 95 (SCC), [1993] 2 S.C.R. 445, as meaning “exposing someone to danger, harm or risk, or putting someone in danger of something untoward occurring”. No doubt, if the leg was left untreated or if there was a substantial delay in treatment, permanent endangerment to health might have been made out. But here, the Crown staked its case for failure to provide necessaries on the short period of time between when the infant was seen by the public health nurse on Friday and the family’s attendance at the physician’s office on Monday.
[15] In my view, given the relatively short period of time involved, the Crown did not prove that the appellant’s failure to obtain earlier medical attention permanently endangered the child’s health. The conviction for this offence cannot be supported by the evidence. Accordingly, I would allow the appeal on the charge of failing to provide necessaries, quash the conviction and enter an acquittal.
Aggravated Assault
[16] The appellant raises a number of grounds of appeal relating to the charge to the jury on aggravated assault. The principal grounds of appeal, however, concern the application of the so-called “deemed consent” defence and the directions given on party liability. In light of my conclusion with respect to the directions on party liability, I do not find it necessary to deal with all of the grounds of appeal. And, although it is not strictly necessary to do so, I will provide some comments on the application of the deemed or implied consent defence that may be of assistance if the Crown chooses to pursue the new trial.
Party Liability
[17] If the jury found that the child had been abused, there was substantial evidence that the abuse was inflicted by the appellant or by Staniforth with the appellant’s knowledge, since the appellant testified that she was with the baby virtually the entire time he was at home. There was only the vaguest hint in her evidence that Staniforth was ever alone with the child. On the rare occasions when he was alone with the child, it was only for a very short period of time.
[18] Given the state of the evidence, and the appellant’s duty to protect her child, if the injuries were the result of child abuse, the jury would likely have had little difficulty in finding that the actus reus of party liability was made out. That is, that at the very least, the appellant, by failing to intervene to protect her child, did something that had the effect of assisting or encouraging her co-accused in the assault of the child. It was likely that the only live issue was whether the appellant had the necessary mens rea to make her a party to the offence. In particular, the jury had to understand that it was not enough that the appellant knew that her child was being abused by her co-accused, but that her actions or her failure to act were for the purpose of assisting or encouraging Staniforth in the commission of the offence. It would have been open to the jury to infer the requisite mens rea from the fact that the appellant knew the child was being abused, but this was not a necessary inference.
[19] I am not satisfied that the instructions to the jury clearly would have conveyed the mens rea requirement. In my view, the instructions would have left the jury with the belief that they could find the appellant guilty as a party if she knew her acts were likely to assist or encourage Staniforth or if she intended to aid or abet him. As I have said, while knowledge can found an inference of intention, it alone cannot constitute the requisite mens rea.
[20] The following is the relevant part of the charge to the jury:
I will turn to the third element of the offence that is the intent to aid or abet. The third element the Crown must prove beyond a reasonable doubt is that one parent intended to aid or abet the principal offender parent to commit the offence. It is not enough that the parent’s acts or omissions actually aided or abetted the principal offender parent. It must also be proven that the parent knew or intended that his or her acts or omissions would aid or abet the principal offender parent to commit the offences. If the parent knew that his or her acts or omissions were likely to assist or encourage the principal offender parent to commit the offences then you are entitled to conclude that the parent intended to aid and abet the principal offender parent to commit that offence. On the other hand the Crown does not have to prove that the parent knew the exact offence and the precise details of the offence that the principal offender would commit. It is sufficient that he or she have knowledge of the type of offence or he or she had the intention of helping the principal offender parent regardless of the offence that he or she intended to commit. You may find it difficult to decide whether one parent knew or intended that his or her actions would aid and abet the other to commit the offences. This is because intention and knowledge are matters of the mind and we cannot see inside other people’s minds. In deciding what the parent knew or intended you have to use your commonsense to infer from all the evidence you have heard what he or she knew or intended. In this case there is some evidence that either Miss Palombi or Mr. Staniforth personally committed the offences of assault and aggravated assault and that the other parent aided and abetted him or her in the commission of those offences.
Provided you are satisfied beyond a reasonable doubt that one or the other of them personally committed the offences and that the other assisted him or her then you must convict both of them. [Emphasis added.]
[21] The courts have stressed the importance of accurately charging the jury on the mens rea for party liability. For example, in R. v. Barr (1975), 1975 1253 (ON CA), 23 C.C.C. (2d) 116 (Ont. C.A.), the trial judge told the jury that “for the purpose of aiding” was “the same as saying with the effect of aiding”. Although the misdirection was immediately followed by a correct instruction, Dubin J.A. was not satisfied that the jury would not have been misled by the former instruction. As he said at p. 120:
In the impugned passage the learned trial Judge gave the jury a simple, but inaccurate dictionary meaning of the provisions of s. 21, which bore directly on the issue which they were called upon to determine. I am confident that the misdirection was an inadvertent one, but the trial Judge did not specifically advise the jury that this portion of the charge was not accurate. It would, therefore, be unsafe, in my opinion, to let the verdict stand.
[22] I have the same concern here. If the jury accepted the Crown expert evidence as to the cause of the injuries, the difficult issue for the jury in this case would not have been whether the appellant knew about the abuse, but rather, whether her acts or failure to act were with the intention, or for the purpose, of aiding or encouraging her co-accused. The trial judge relieved the jury of that difficult task by leaving them with the option of convicting the appellant merely on the basis that she knew of the abuse. They were repeatedly told that either knowledge or intention to aid was sufficient to convict.
[23] In Dunlop and Sylvester v. The Queen (1979), 1979 20 (SCC), 47 C.C.C. (2d) 93 (S.C.C.), Dickson J. discussed the basis for party liability under s. 21(1) of the Criminal Code at length. At p. 107 he quoted with approval a passage from reasons of Hawkins J. in the leading case of R. v. Coney (1882), 8 Q.B.D. 534 at 558, where the point was made that although knowledge of the principal offender’s acts can be cogent evidence of the requisite mens rea in some circumstances, whether in fact the accused party had the requisite intent always remains a question for the jury:
Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting. [Emphasis added.]
[24] Mr. Justice Martin made a similar point in a slightly different context in R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.) at 387, where he said:
Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he, nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused's act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused. [Emphasis added.]
[25] The Crown has not persuaded me that this is a proper case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. There was little evidence from which a jury could infer that it was the appellant rather than Staniforth who committed the assaults on the child. Party liability relieved the jury of having to make that factual determination and thus, became the easiest route to conviction. In my view of the evidence, once the jury came to the conclusion, as they must have, that the infant was deliberately abused, the only serious question was whether the appellant or Staniforth had the requisite intent for party liability. That was a live question in this case. It would only be open to this court to apply the proviso if we were satisfied that the jury would inevitably have inferred the requisite intent from the fact that the appellant was aware of the assaults by her co-accused. I am not satisfied that it is appropriate to make that finding. In addition to the appellant’s direct evidence about her treatment of the child there was other evidence adduced by the Crown and the defence that suggested the appellant handled the child appropriately and cared deeply for him. Based on the record, a finding that she stood by and failed to protect her child from the co-accused for the purpose of aiding or encouraging him in the abuse of the child was not inevitable. Accordingly, there must be a new trial.
Deemed Consent
[26] Although it is not strictly necessary to deal with the issue of the deemed consent defence, I think it appropriate to provide some guidance on the issue should the Crown choose to pursue a new trial. It was the submission of counsel for the appellant that the charge to the jury respecting the related issues of accident and deemed consent was confusing and may have left the jury with the erroneous impression that they could convict the appellant if she was merely negligent in her handling of the child.
[27] The difficulty posed by this case lies in the relationship between the law of assault, accident and deemed consent in the context of child care. The fault element for aggravated assault adds a layer of difficulty. I will attempt to set out the basic framework for the relationship between these legal concepts and apply that framework to the facts of this case.
[28] Any intentional application of force – even relatively minor force – without the consent of the victim, is an assault unless some defence applies. There is no suggestion of any defence that could apply in this case. In particular, the use of force by way of correction as set out in s. 43 of the Criminal Code was not available given the age of the child: see Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 at para. 25. There may also be circumstances where the common law necessity excuse, as described in Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232, may be applicable. No such circumstances arose in this case.
[29] Infants, however, require care that will call for the intentional, although usually minor, application of force. In addition, parents have a statutory and common law duty to provide the necessaries of life to children under their care: see for example s. 215 of the Criminal Code. Again, the performance of this duty will require the use of force. It is awkward to attempt to excuse the use of this type of force through the application of the rigorous standards of the necessity defence. The courts have instead developed the concept of deemed consent.
[30] The decision of Weiler J.A., writing for this court, in R. v. E. (A.) (2000), 2000 16823 (ON CA), 146 C.C.C. (3d) 449, is the leading authority in this province on the scope of deemed consent for the care of infants. As she explains at para. 33, deemed or implied consent in the case of infants must be strictly limited to conduct that is “consistent with the purpose and rationale underlying the policy basis for the consent.” That policy basis is the child’s incapacity to care for him or herself. It follows that only force necessary to care for the child can be justified.
[31] Accordingly, as Weiler J.A. explained, there are two limits on implied consent. First, as she noted at para. 33, the force used must have been for the purpose of caring for the child. In determining whether the force used was for the purpose of caring for the child, an objective standard is to be applied. That is, the trier of fact must consider whether the force used is consistent with “the customary norms of parenting or what a reasonable parent would do in similar circumstances”: E. (A.) at para. 40.
[32] The second limit on the use of force under the rubric of implied or deemed consent is that the force used must not be excessive: E. (A.) at para. 37.
[33] Thus, in the context of criminal charges, a parent will only be deprived of protection of implied or deemed consent where the force used clearly exceeds customary norms or is clearly excessive: E. (A.) at para. 42.
[34] I now turn to the fault elements of assault, including aggravated assault. First, the application of force must be voluntary. Thus, the striking of someone through an involuntary reflex action is not an offence. For reasons that need not be explored here, voluntariness is an element of the actus reus, rather than the mens rea: see R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871 at 896. The appellant’s testimony that she grabbed her infant by reflex as he was about to fall off her chest might come within the notion of involuntariness. However, see Professor Don Stuart’s discussion on the strict limits on involuntariness based on reflex in Canadian Criminal Law: A Treatise, 4th ed. (Scarborough: Carswell, 2001) at 109-10. Reflex, however, is of only theoretical interest in this case because it is unlikely that the many fractures caused to this infant were due to the single reflex action testified to by the appellant.
[35] There is, of course, also a mens rea or fault element for the simple (common) assault offence. The force must have been applied intentionally. The touching that occurs due to the normal jostling that takes place in a crowded bus is a classic example of the unintentional or accidental application of force. Like reflex, unintentional or accidental application of force is of no practical application in this case. The appellant did not claim that she accidentally applied force to her child. Her defence, supported by the evidence of Dr. Miller, was that she accidentally caused harm to the child through the intentional application of force, albeit in the context of normal care of the infant.
[36] It is no defence to a charge of assault that the intentional application of force caused more harm than was intended, or put another way, that the harm was caused accidentally: see R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.) at para. 79. The offence is complete upon the non-consensual intentional application of force, barring the successful invocation of some defence, such as self-defence.
[37] In this case the appellant had to fall back on deemed consent. She was entitled to be acquitted unless the jury was satisfied beyond a reasonable doubt either that the force used was not for the purpose of caring for the child, or if it was, that she used excessive force. The concept of “accident” must be understood in this context. That is, if in caring for her child in accordance with customary parental norms and without using excessive force, the appellant “accidentally” harmed the child because of the child’s abnormal bone density, she was entitled to be acquitted. I say this on the assumption that she was unaware of this unusual condition. If she was aware of the unusual condition and therefore aware of the need for special care, the use of “normal” force would be excessive. Again, this caveat is of no practical application in this case. There is no suggestion in the evidence that the appellant knew or even ought to have known that her child was not strong enough to tolerate normal handling.
[38] The final fault element applicable in this case concerns the additional mental element for the offence of aggravated assault. In addition to proof of an intentional application of force to make out the charge of aggravated assault, the Crown also had to establish objective foresight of bodily harm. In other words, the Crown had to show that a reasonable person would foresee that the appellant’s actions would result in bodily harm as defined in s. 2 of the Criminal Code being “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.
[39] Thus, in this case, if the jury found that the deemed consent defence was not available but that a reasonable person would not have foreseen that the acts would cause bodily harm to the infant, the appellant could not be convicted of aggravated assault. Whether the appellant would be guilty of the included offence of assault or assault causing bodily harm depends on the fault element of assault causing bodily harm. Since the assault did cause bodily harm, if the mens rea for assault and assault causing bodily harm is identical, the appellant would be guilty of assault causing bodily harm. Appellate courts in British Columbia and Saskatchewan have so held: see R. v. Swenson (1994), 1994 4683 (SK CA), 91 C.C.C. (3d) 541 (Sask. C.A.), and R. v. Brooks (1981), 1988 3018 (BC CA), 41 C.C.C. (3d) 157 (B.C.C.A.). On the other hand, this court has held in R. v. Nurse (1993), 1993 14691 (ON CA), 83 C.C.C. (3d) 546, and R. v. Wong (2006), 2006 18516 (ON CA), 209 C.C.C. (3d) 520, that the essential elements for assault causing bodily harm and aggravated assault are the same; that the offences differ only in the nature of the injury required to make out each offence. Similarly, see R. v. Dewey (1998), 1999 ABCA 5, 132 C.C.C. (3d) 348 (Alta. C.A.).[^4] Accordingly, in this province if the accused does not have the mens rea for aggravated assault he or she can only be convicted of common assault, even though the assault caused bodily harm.
[40] There is a factual overlap between the implied consent defence and the mens rea issue since the appellant was entitled to rely on the same body of evidence, principally Dr. Miller’s opinion, in respect of the consent defence and the mens rea issue. Thus, for example, if the jury found that the force used was not for the purpose of child care as defined in E. (A.), but had a reasonable doubt that because of the child’s unusual bone condition a reasonable person would have foreseen that the acts would cause bodily harm, the appellant could only be convicted of common assault.
[41] To summarize, in my view, in the circumstances of this case the jury should have been charged as follows.
[42] The jury should first consider whether the appellant committed an assault, being the voluntary and intentional application of force[^5] without the consent of the victim. It would be open to the trial judge to instruct the jury that they should have little difficulty finding that the acts of the appellant were voluntary and intentional, except if they accepted that the only injury caused to the child, for which the appellant was responsible, resulted from the appellant’s reflexive catching of the child as he fell off her chest.
[43] The jury must, however, give serious consideration to whether the force was applied without consent. The burden is on the Crown to negative consent. That burden will be met if the jury is satisfied beyond a reasonable doubt either that the appellant’s use of force was clearly not for the purpose of caring for the child or that in caring for the child she clearly used excessive force. In considering whether the force used was for the purpose of caring for the child, the jury will apply customary norms. If the jury has a reasonable doubt that the force was with implied or deemed consent, the appellant must be acquitted. The trial judge would, of course, relate the relevant evidence to these issues including the appellant’s testimony and the expert evidence as well as the other evidence concerning the appellant’s handling of the child.
[44] If the jury was satisfied beyond a reasonable doubt that the appellant did commit assault, they must consider whether she was guilty of aggravated assault. Again, it would be open to the trial judge to direct the jury that they would have little difficulty in finding that the actus reus of aggravated assault was committed, it being common ground that the many fractures to the child’s bones fell within the concept of wound, maim or disfigure in s. 268 of the Criminal Code. However, the Crown must also prove that a reasonable person would have foreseen that the appellant’s actions would cause bodily harm to the child. If not, the appellant would be guilty only of the included offence of common assault. Again, in considering this issue the jury would have to consider all the evidence and particularly, the expert evidence.
[45] The instructions I have set out above are merely suggestions and, of course, do not take into account the added complication of the appellant’s potential liability as a party.
[46] In this case, while the trial judge did not instruct the jury in precisely these terms, I am satisfied that when the instructions are read as a whole, the jury would have understood that they could only convict the appellant if they were satisfied beyond a reasonable doubt that the appellant’s use of force was clearly not for the purpose of caring for the child or that in caring for the child she clearly used excessive force. I am also satisfied that the issue of the mens rea for aggravated assault was made sufficiently clear to the jury. Thus, for example, the trial judge charged the jury as follows:
For you to consider the first element, the intentional application of force you are to consider the same factors that I have described to you in the context of the assault charges. The force must be intentional and not by accident. In this case you must consider whether the fractures were caused by the intentional application of force or by normal childcare activities. Normal childcare activities with normal effort or force and no intention to injure do not constitute an intentional application of force. When you consider the second element whether the force applied wounded, maimed, disfigured or endangered the life of Matthew, if you find the force caused a fracture then the element is made out. You do not have to agree which fractures were caused by the intentional application of force provided that each of you is satisfied beyond a reasonable doubt that one of the fractures resulted from the force that was intentionally applied. [Emphasis added.]
[47] Although the trial judge put the essential issues in terms of intention rather than consent, the real matters that the jury had to decide were put before them. Moreover, it cannot be forgotten that the factual issues were relatively clear. The Crown contended that this was deliberate child abuse while the defence contended that the injuries were caused by normal treatment of a child with an unknown vulnerability. The jury’s ordinary understanding of the term “child abuse” would assist them in understanding that injuries resulting from normal child care would not lead to culpability.
DISPOSITION
[48] Accordingly, I would allow the appeal and set aside the convictions. I would enter an acquittal on the charge of failing to provide necessaries and order a new trial on the charge of aggravated assault.
Signature: “Marc Rosenberg J.A.
“I agree S.T. Goudge J.A.”
“I agree J. MacFarland J.A.”
RELEASED: “MR” June 28, 2007
[^1]: The appellant was also charged with common assault based on a mark observed on the child’s face. The jury acquitted on this count and it plays no part in the appeal.
[^2]: Dysmorphology is the study of abnormal formation.
[^3]: The appellant did describe two other episodes in her evidence, although it hardly seems likely that they could explain the diverse injuries. On one occasion when the baby was still in the hospital, she noticed that one nurse was handling him in a somewhat rougher way than the other nurses. She therefore asked the hospital to assign a different nurse, which they did. The second episode involved her grandmother. The infant was in his car seat and she noticed her grandmother apparently trying to take the child out without loosening the straps. The appellant quickly intervened and she noticed no injury to the child.
[^4]: Also see R. v. Godin, 1994 97 (SCC), [1994] 2 S.C.R. 484 at para. 1, holding that the mens rea for aggravated assault is objective foresight of bodily harm.
[^5]: The broader definition of assault including the attempted or threatened application of force in s. 265(1)(b) of the Criminal Code has no application in this case.