W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application thereof is made by the prosecutor, and
(b) shall, if application thereof is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,
(c) he is discharged; or
(d) if he is ordered to stand trial, the trial is ended.
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
(4) In this section, “newspaper” has the same meaning as it has in section 297. R.S., c. C-34, s. 467: R.S.C. 1985, c. 27 (1st Supp.), s. 97.
CITATION: R. v. Mendieta, 2007 ONCA 621
DATE: 20070913
DOCKET: C46699
COURT OF APPEAL FOR ONTARIO
SIMMONS and LAFORME JJ.A. and MCKINNON J. (Ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
And
ERIKA MENDIETA
Respondent
Jennifer Woollcombe for the appellant
Edward D. Prutschi for the respondent
Heard: August 24, 2007
On appeal from the order of Justice Gloria J. Epstein of the Superior Court of Justice dated January 30, 2007.
JUDGMENT
BY THE COURT:
[1] The Crown appeals from the order of Epstein J. quashing a committal for second degree murder and substituting a committal for manslaughter. At the preliminary inquiry, the defence conceded that there was sufficient evidence to justify a committal for manslaughter. Accordingly, the sole issue on appeal is whether there was any evidence at the preliminary inquiry capable of supporting an inference that the respondent intended to cause bodily harm that she knew was likely to cause death and was reckless whether death ensued within the meaning of s. 229(a)(ii) of the Criminal Code.
I. Background
[2] The respondent was charged with the murder of her 34 month old daughter, Emmily. On November 13, 2003, Emmily was rushed to hospital in an unconscious state. Although taken initially to Humber River Regional Hospital, she was transferred later that day to The Hospital for Sick Children where a severe head injury was diagnosed. Multiple bruises on her body and retinal hemorrhages were also noted. Emmily died in hospital on November 23, 2003.
[3] Evidence at the preliminary inquiry indicated that as of November 13, 2003, Emmily was living with her mother, her mother's common law partner Johnny Bermudez, four older siblings, and her younger half-brother. The evidence also indicated that on November 12, 2003, Emmily sustained a small bruise under one eye on her cheekbone—and that the respondent told Mr. Bermudez that this happened when Emmily fell off the stairs and hit her face on a broomstick. At the preliminary inquiry, Mr. Bermudez testified that that he was not concerned and observed no other injuries.
[4] Mr. Bermudez also testified that earlier in the day on November 13, 2003, he and the respondent took Emmily with them while they ran errands, which included an extended visit to a Canadian Tire store. According to Mr. Bermudez, Emmily was fine during this period and walked around eating chips and having a drink that they purchased from a vending machine. In addition, a nurse who observed the family at the store testified that Emmily seemed to walk normally and had good muscle control for her age. The nurse was able to see Emmily’s face and neck—he confirmed that he did not see anything unusual or any bruising.
[5] Mr. Bermudez testified that once at home, Emmily went to sleep on a sofa in the living room; Mr. Bermudez went upstairs with another child and the respondent went out briefly. About 15-20 minutes after the respondent returned home, Mr. Bermudez heard a "ruckus" downstairs and ran to the living room. Emmily was very ill. He tried to give her CPR and mouth to mouth resuscitation, poked the inside of her eye to try to get some movement, slapped her cheeks, shook her, and pinched her all over.
[6] Medical evidence led at the preliminary inquiry indicated that Emmily died as the result of oxygen deprivation to the brain and heart failure associated with central nervous system (brain and spinal chord)/ocular trauma. Dr. Chiasson (the pathologist who performed the autopsy) explained that in his view, the underlying problem was trauma to the brain associated with trauma to the eyes. The trauma would cause swelling of the brain and lead to cardiopulmonary arrest. This, in turn, interferes with blood flow to the brain causing more brain swelling and potentially more cardiopulmonary arrests. However, none of the doctors who testified at the preliminary inquiry was able to establish the exact mechanism of the fatal injury.
[7] In particular, Dr. Ramsay (a neuropathologist who examined Emmily’s brain and spinal chord after the autopsy) indicated that the injuries he observed could have been caused by shaking, a throw, multiple throws, or a blow. He said that the force necessary to cause such injuries "would be readily recognizable as excessive" and as "potentially harmful". However, he acknowledged that he would be unable to say, based on the injuries alone, whether the force used was “harmful force or deadly force”. He also said that while the force used "would be recognized as violence”, it would “not necessarily [be recognized as] deadly violence.”
[8] If the mechanism of injury was shaking, Dr. Ramsay testified that he was unable to draw a distinction between “the shaking of malice and the shaking of panic”—what he could say is that it would have to be “severe shaking, not the gentle shake that one would use for example to wake a child up.” Although he stated initially that, in his opinion Emmily would have been “immediately unconscious” due to the hemorrhaging, he later clarified that a child with this type of injuries would “show signs of it…immediately or within seconds to a minute or two.”
[9] Dr. Wolski (a doctor who saw Emmily at The Hospital for Sick Children Hospital on November 13, 2003) described her external injuries. He noted a one centimeter laceration on her scalp, a large area of bruising under her left eye (5.5 x 1.9 cm), a bruise on her left cheek, a small bruise on her right cheek, a small bruise under her lower lip, petechial hemorrhage on her left ear, bruising on her right ear, and mild scalp swelling near the laceration. He also described bruising on her shoulder, right arm, hand, abdomen, left arm, left leg, back, and hip. He was aware that retinal hemorrhaging had been discovered in her right eye and that she had a subdural hematoma with blood overlaying the brain. Although he could not time the bruises, he said that particularly with respect to the bruising on her face, ears, abdomen, and back, they could not have been caused by violent shaking performed to revive Emmily.
[10] Dr. Wolski also testified about the amount of force that would have been necessary to cause Emmily’s brain injury—he said, “[i]t’s very, very, very, very significant.” However, he also explained that in contrast to the force associated with a car accident or a significant fall, “often times with blunt force trauma or with shaking [the acceleration] is not linear…but it’s a rotational acceleration which is a different type of force inflicting a different type of injury and sheering in the different layers of the brain.”
[11] The Crown also adduced wiretap evidence and evidence of room probes at the preliminary inquiry. On one of the room probes, the respondent can be heard making the following statements to Mr. Bermudez:
…I didn’t want to…I didn’t want her to die. I didn’t. I didn’t … I didn’t want her to die…
…I did it. I did it. I did it…
…I didn’t want her to die…
…I didn’t, she was a really good kid. She tells me…She tells me in my dreams…She was such a good kid…I didn’t mean to. I didn’t…
…I didn’t mean to be cruel with a good kid…
…I didn’t want her to die…
…I killed her myself…
[12] In his reasons for committing the respondent for second degree murder the preliminary inquiry judge identified seven areas of evidence that, “if believed, could lead to that finding of guilt”:
i) [the respondent] had the sole opportunity (Bermudez evidence) and size differential, to use the amount of force needed to cause the injuries;
ii) medical evidence including the nature of the force that resulted in injuries;
iii) after the injuries were inflicted, Emmily would have immediately been unable to move or respond. Her condition when Bermudez went downstairs and his denial of any such action can lead to the conclusion that [the respondent] did the actus reus;
iv) in all the circumstances of the [respondent] including being a mother of six children, the small size of Emmily, (thirty-four inches long, seventeen kilograms, thirty-four months old) a jury could conclude that she must have been aware that the acts which caused the severe injuries would likely cause death;
v) the significant number and location of bruises not directly associated with the fatal injuries, could lead to an inference that [the respondent] caused them. Therefore she had some appreciation of the force necessary to cause those, and a capacity to be aware of what the force that caused the fatal injuries was capable of producing. There could be a finding of animosity toward Emmily from that past behaviour;
vi) [the respondent’s] different accounts of the “accident” of Emmily as an explanation of the injuries;
vii) [the respondent] told [Emmily’s father], and later denied that she had disciplined Emmily the day of the 911 call.
[13] The reviewing judge found that the preliminary inquiry judge relied on three key areas of evidence to find that there was evidence capable of supporting an inference that the respondent had the necessary intent for second degree murder: i) the medical evidence; ii) the fact that the respondent was the mother of six children; and iii) the bruises. She concluded that the totality of the evidence did not support an inference that the respondent had the subjective intent necessary for second degree murder and therefore that the preliminary inquiry judge exceeded his jurisdiction in committing the respondent on that charge.
[14] In particular, the reviewing judge found that the medical evidence concerning the degree of force required to inflict Emmily’s injuries did not go far enough to support an inference that the respondent had the requisite intent for murder. Further, in the face of the medical evidence, drawing an inference that a mother of six would have the necessary insight to appreciate the consequences of the force she was using would be speculative. Finally, the reviewing judge accepted a defence submission that the evidence of bruising was irrelevant to the intent issue since the medical evidence indicated it was impossible to distinguish between bruises caused by revival efforts and bruises caused by abuse.
II. Analysis
[15] We begin our analysis by noting that the scope of review on an application to quash a committal is extremely narrow—a reviewing judge is entitled to quash a committal only where the preliminary inquiry judge acted without jurisdiction: see R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 19-20 (S.C.C.). While it is jurisdictional error to commit an accused for trial where there is no evidence capable of supporting a conviction, a preliminary judge has “the right to be wrong” in assessing the sufficiency of the evidence: see R. v. Deschamplain (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 at para. 49 (S.C.C.) and R. v. McLarty [2000], O.J. No. 2429 at para. 76 (Sup. Ct.). A reviewing court is not entitled to simply substitute its opinion on that issue for that of the preliminary inquiry judge: see R. v. Tuske, [1978] O.J. No. 1253 at para. 3 (C.A.), R. v. Manickavasagar, [2004] O.J. No. 600 at paras. 2-5 (C.A.), and R. v. Collin, [2004] O.J. No. 791 at para. 2 (C.A.).
[16] In our opinion, in holding that there was no evidence capable of supporting an inference that the respondent had the necessary intent for second degree murder, the reviewing judge erred in two related ways.
[17] First, the reviewing judge erred in looking at the medical evidence in isolation without considering the potential inference(s) that would be open to a trier of fact concerning the events leading up to Emmily’s fatal injuries. In our view, based on the evidence of Mr. Bermudez and the nurse who observed the family at the Canadian Tire store, there would be an available inference that, at a minimum, Emmily suffered some or all of the external facial injuries identified at The Hospital for Sick Children at the same time as she suffered the fatal injury. In these circumstances, a further inference would be available that Emmily suffered the fatal injury as part of an incident of more than fleeting duration that involved inflicting trauma to her head.
[18] We agree with the respondent that there was also evidence pointing away from these inferences, for example, the evidence of Mr. Bermudez that he slapped and pinched Emmily in an attempt to resuscitate her and the evidence of a neighbour that he did not hear anything out of the ordinary around the time of the alleged incident. However, it would be for the trier of fact to determine the weight to be afforded to such evidence—at this stage of the proceeding, this evidence does not therefore displace the potential inferences relied on by the Crown.
[19] Second, in our view, the reviewing judge erred in failing to consider the potential inference(s) arising from the cumulative effect of the evidence relied on by the Crown.
[20] Considered at its highest, the medical evidence confirmed that Emmily suffered the fatal injury as the result of “very, very, very, very significant force”. While the medical evidence indicated that such force would not necessarily be recognized as lethal, it did not exclude that prospect. It would be for the trier of fact to determine the ultimate question of whether the respondent used force intending to inflict bodily harm that she knew was likely to cause death and being reckless whether death ensued taking account of all of the evidence concerning the circumstances of the fatal injury.
[21] In our view, when the medical evidence is considered in conjunction with the evidence about Emmily’s size, the respondent’s experience with small children and the evidence giving rise to the potential inference that Emmily suffered the fatal injury as part of an incident of more than fleeting duration that involved inflicting trauma to her head, there is a further potential inference that a reasonable person would realize that the force used in inflicting the fatal injury was likely to cause death. There being no evidence that the respondent’s capacity to know the consequences of her actions was impaired, that inference, in turn, would be capable of supporting an inference that the respondent used force in relation to Emmily intending to cause bodily that she knew was likely to cause death: R. v. Magno (2006), 2006 21758 (ON CA), 210 C.C.C. (3d) 500 (Ont. C.A.).
[22] Although all of the inferences in the foregoing chain of reasoning may be weak, in our view, they are available on the evidence and do not amount to impermissible speculation. We do not therefore agree that the preliminary inquiry judge committed jurisdictional error by committing the respondent for trial on the charge of second degree murder.
III. Disposition
[23] Based on the foregoing reasons, the appeal is allowed, the reviewing judge’s order is set aside and the order of the preliminary inquiry judge ordering that the respondent stand trial on the charge of second degree murder is restored.
RELEASED: September 13, 2007 “JS”
“Simmons J.A.”
“H.S. LaForme J.A.”
“Colin McKinnon J. (ad hoc)”