Her Majesty the Queen v. Broomfield

[Indexed as: R. v. Broomfield]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Blair and Watt JJ.A.

October 21, 2014

123 O.R. (3d) 316 | 2014 ONCA 725

Case Summary

Criminal law — Appeal — Fresh evidence on appeal — Accused convicted of aggravated assault and administering noxious substance — [page317] Trial judge concluding on basis of expert evidence from pharmacologist/toxicologist based on testing the victim's hair that accused had given cocaine to her young son for 14 months — Fresh evidence admitted on appeal which called into question testing methods relied upon by Crown expert at trial — Accused's appeal allowed.

The accused was charged with aggravated assault and administering a noxious substance to her two-year-old son, both of which related to the child's alleged ingestion of cocaine, and with failing to provide the necessaries of life. At trial, the Crown adduced expert evidence about long-term cocaine ingestion from a pharmacologist/toxicologist who concluded, on the basis of a sample of the victim's hair, that the victim must have ingested substantial amounts of cocaine over a period of 14 months. No evidence was adduced at trial to attack the testing methods used by the Crown's expert. The trial judge relied on that evidence in convicting the accused. The accused appealed and sought to adduce fresh evidence on appeal in the form of the evidence of a toxicologist who challenged the methods used to collect and prepare the hair sample, criticized the methodology used in the analysis of the sample, and questioned the validity of the results as given in evidence at trial.

Held, the fresh evidence should be admitted and the appeal should be allowed.

The evidence was relevant to a potentially decisive issue, was sufficiently credible to be admitted and could reasonably be expected to have affected the verdict. The fresh evidence indicated that there was a controversy among experts about the accuracy of the method of testing hair for the presence of drugs used by the Crown's expert. The convictions for aggravated assault and administering a noxious substance could not stand. A new trial was ordered, but the order was stayed because the accused had already served more than double the length of sentence imposed on the failing to provide the necessaries count. That count was not impacted by the fresh evidence, as it arose from evidence that the child had suffered rib and wrist fractures, and she had abandoned her appeal from that conviction.

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 683 [as am.]

APPEAL from the convictions for aggravated assault and administering noxious substance entered on April 1, 2009, and the sentences imposed by Dunnet J., sitting without a jury, [2010] O.J. No. 3102, 2010 ONSC 3808 (S.C.J.).

James Lockyer and Saman Wickramasinghe, for appellant.

Randy Schwartz, for respondent.

[1] Endorsement BY THE COURT: -- Tamara Broomfield appeals convictions of assault causing bodily harm, aggravated assault, failing to provide the necessaries of life and administering a noxious substance. Each count and conviction relates to her conduct towards her son who was about two years of age at the time of the relevant events. Ms. Broomfield has served the sentences imposed for the convictions. [page318]

The Background Facts

[2] The circumstances that underpin the counts of which Ms. Broomfield has been convicted fall within narrow compass and can be summarized briefly.

The fracture counts

[3] One count of aggravated assault and the count of failure to provide the necessaries of life relate to various fractures Ms. Broomfield caused to her son's wrist and ribs. X-rays confirmed that her son's wrist had been fractured not once but twice. He had suffered a total of eight fractured ribs, including two ribs that had been fractured twice.

[4] The conviction of failure to provide the necessaries of life was entered because Ms. Broomfield failed to obtain medical care for her son's broken wrist. The charge of aggravated assault, which resulted in a conviction of assault causing bodily harm, relates to the multiple rib fractures she caused her son over a 14-month period.

The cocaine counts

[5] The remaining convictions of aggravated assault and administering a noxious substance (counts four and six) have a common origin -- the finding of cocaine or its metabolite (BZE) in her son's blood and urine.

[6] At trial, Crown counsel adduced expert evidence about long-term cocaine ingestion from a pharmacologist/toxicologist and a technician in the Motherisk Program at the Hospital for Sick Children. A sample of the victim's hair revealed high concentrations of cocaine and its metabolite, BZE, and led the expert to conclude that the victim must have ingested substantial amounts of cocaine throughout the 14-month period described in the indictment.

[7] A live controversy at trial was whether the victim exhibited any behavioural signs consistent with chronic exposure to significant amounts of cocaine over the 14-month period.

[8] The trial judge concluded that Ms. Broomfield had been giving cocaine to her son, in some form or other and in substantial amounts, for 14 months prior to his collapse on July 31, 2005, when he was rushed to the hospital. The trial judge concluded further that Ms. Broomfield gave her son cocaine on July 31, 2005 that resulted in his collapse and seizure-like symptoms. [page319]

The Appellate Proceedings

[9] Ms. Broomfield appeals her convictions. She has abandoned her appeal from the convictions arising out of the several fractures she caused her son but pursues her appeal from the convictions based on the ingestion of cocaine. In aid of the appeals she pursues, Ms. Broomfield tenders the evidence of a toxicologist who

(i) challenges the methods used to collect and prepare the hair sample on which the Crown expert relied in support of his opinion at trial;

(ii) criticizes the methodology used in the analysis of the sample; and

(iii) questions the validity of the results as given in evidence at trial.

The admissibility of the fresh evidence

[10] Counsel agree that the proposed fresh evidence -- two reports of Dr. Craig Chatterton, the deputy chief toxicologist in the Office of the Chief Medical Examiner in Edmonton, Alberta -- should be received as fresh evidence under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46 because it is in the interests of justice to do so.

[11] We agree.

[12] We are satisfied that due diligence is not a factor that should weigh against the reception of the proposed evidence in this case. The evidence is relevant to a potentially decisive issue on the counts grounded on the administration of cocaine. The evidence is sufficiently credible to be admitted and could reasonably be expected to have affected the verdict on the two counts relating to the administration of cocaine. No evidence was adduced at trial to challenge the methodology used by the Crown's expert. The trial judge made her decision unaware of the genuine controversy among the experts about the use of the testing methods relied upon by the Crown expert at trial to found a conclusion of chronic cocaine ingestion, thus, its administration by Ms. Broomfield.

The effect of the admission of the fresh evidence

[13] We also agree with the joint submission of counsel about the effect of the admission of the fresh evidence on the sustainability of the convictions of the cocaine administration counts. The conviction on count six -- administering cocaine over [page320] a 14-month period -- cannot be sustained. Further, the conviction of aggravated assault by administering cocaine to the victim on July 31, 2005 thereby endangering his life, was founded, in part at least, on the finding that Ms. Broomfield had been administering cocaine to her son over the previous 14 months.

[14] It follows, in our view, that the conviction on count four cannot stand.

Conclusion

[15] In the usual course, admission of the fresh evidence would warrant quashing the conviction on counts four and six and ordering a new trial on those counts so that the competing expert opinions could play out before a trier of fact. But in this case, Crown counsel, in the best traditions of his office, invites us to stay the order for a new trial on the cocaine administration counts. He says, and we agree, that it is not in the interests of justice to proceed to a new trial on those counts because

(i) the appellant has already served the equivalent of a 49-month sentence, more than double the sentence she was ordered to serve for the fracture-related counts; and

(ii) the appellant remains convicted of the fracture-related counts because she has abandoned her appeal from those convictions.

[16] In the result, the appeal from the convictions on counts one (assault causing bodily harm) and three (failure to provide necessaries) is dismissed as abandoned. The fresh evidence is admitted in connection with the appeal from the convictions on counts four and six, the convictions on those counts are quashed and a new trial is ordered. The order for a new trial is stayed.

Appeal allowed.

End of Document