Publication Ban Warning

WARNING

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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c.13, s. 18 .

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO DATE: 20210819 DOCKET: C67871 Watt, Roberts and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

K.J. Appellant

Counsel: Michael W. Lacy and Deepa Negandhi, for the appellant Avene Derwa, for the respondent

Heard: April 22, 2021 by video conference

On appeal from the conviction entered by Justice Elizabeth C. Sheard of the Superior Court of Justice on November 13, 2019.

L.B. Roberts J.A.:

A. Overview

[1] The appellant appeals her conviction for aggravated assault against N.T. when he was about 13 months old. She received a two-year custodial sentence but did not seek leave to appeal her sentence.

[2] The facts underlying the conviction are tragic. The appellant was N.T.’s caregiver. On July 20, 2016, N.T. suffered a seizure while in the appellant’s care and was taken to the hospital by emergency personnel. He had a severe head injury. His treating physicians could not determine the cause of N.T.’s head injury, though they suspected that he had sustained trauma to his head.

[3] This appeal turns on the trial judge’s treatment of the medical expert evidence on the causation of N.T.’s head injury.

[4] For the reasons that follow, I would allow the appeal and order a new trial.

B. Factual Background

[5] As a new trial is required, I am careful to provide only a summary of the relevant factual background, taken primarily from the trial judgment, without any comment on the correctness or reasonableness of the trial judge’s findings.

[6] At the time of the offence, the appellant had just started to provide day care services to N.T., who was then 13 months old. She had been looking after his almost four-year-old brother, J.T., for several years without any incident. A childcare worker with 11 years of experience, she had cared for children in her own home for almost 5 years. There had never been any issues with the children in her care, and she had never previously spoken to the police or the Children’s Aid Society. The appellant and N.T.’s parents had known each other for years. N.T.’s parents indicated that they trusted her and did not believe that she would intentionally harm their children in any way.

[7] On July 20, 2016, by all accounts, N.T. had enjoyed a typically happy morning and exhibited no signs of illness or injury. He breakfasted with his mother and brother, and watched television with them before his mother dropped them off at the appellant’s house at around 8:00 a.m. The appellant noted in her police statement that N.T. and his brother had a regular morning with her.

[8] At around 11:40 a.m., the appellant called N.T.’s mother, E.T., and advised that there was something wrong with N.T.: his eyes looked abnormal, his body was stiff, his head was banging, and she thought he had stopped breathing. Paramedics were called, and they transported N.T. to the hospital for emergency care.

[9] N.T.’s medical records from his hospital stay were filed on consent. They indicated that upon his arrival at the hospital N.T. was having a seizure, and that he had the following injuries: a large subdural haematoma on the left side of his brain; numerous retinal hemorrhages; ischemic injuries from lack of blood flow caused by the haematoma; mild compression fractures in his upper vertebrae; and a number of small bruises, including on the back, left eye, head, and groin. N.T.’s treating doctors were unable to determine the exact cause of N.T.’s injuries but suspected that he had sustained trauma to his head.

[10] N.T.’s parents testified that he had experienced a couple of recent falls. About a week before July 20, N.T. did a barrel roll off their deck, like a cartwheel, and hit the back of his head on patio stones. On July 16 or 17, N.T. slid out of the bathtub onto the bathmat, his face made contact with the floor, and he ended up with a mark on his left temple. His parents said that N.T. was well after each fall.

[11] The appellant voluntarily gave a statement to police on July 21, 2016. She did not testify at trial. In her police statement, the appellant denied hurting N.T. in any way. She, however, recalled a few occasions when N.T. may have hit his head. On July 19, when she left him briefly in the living room to answer the door, N.T. fell and hit the coffee table, which to her sounded like he hit his head. Although she did not tell the interviewing officer, in one of her text messages to E.T., the appellant said he vomited later that day. The appellant told the interviewing officer about how she thought that on July 20, N.T. may have hit his head against the wrought iron child stool when he was upset and twisting in it during lunch, or later against the change table when he was “almost banging his head” as she tried to change his diaper. According to the appellant, N.T. did not show any signs of unwellness until sometime later that morning when she went to check on him while he was napping, picked him up, and tried to change his diaper again. She then saw the signs of illness that she immediately reported by telephone to N.T.’s mother.

[12] There was no dispute at trial that N.T. had tragically sustained a serious brain injury that would likely result in future developmental deficits. The trial turned on the conflicting expert evidence called by the Crown and the defence as to the cause of N.T.’s head injury.

[13] The Crown’s expert, Dr. Baird, opined that no underlying medical condition or recent illness could explain N.T.’s injuries and concluded that the only “remaining plausible explanation” was “severe inflicted head trauma,” which he believed had to have occurred on the change table when the appellant was changing N.T.’s diaper. He testified that while persons with injured brains can have seizures days after an accident, the type and degree of retinal hemorrhages N.T. suffered were not consistent with the minor short falls and other incidents described by N.T.’s parents and the appellant. He believed that if N.T.’s injuries had been caused by an accident, the accident needed to be so significant and dramatic that the event would not have gone unnoticed by his caregiver. He was of the view that since N.T. exhibited normal neurological function before July 20 and “because there was no report of any episode of accidental trauma which has any authoritative accepted scientific literature to be associated with the types of hemorrhages that he has”, N.T.’s brain injury was caused by severe acceleration/deceleration forces that were inflicted upon him immediately before the hospital visit.

[14] The appellant’s expert, Dr. Ramsay, also ruled out any underlying disorder or disease as a possible cause for N.T.’s subdural bleeding. He agreed that N.T.’s subdural bleeding, retinal hemorrhages, and damage to the brain (“the triad”) are typical of acceleration/deceleration injuries. However, he cautioned against reliance on the triad alone because of its unreliability in demonstrating an impact head injury. He noted that there were factors present which went against the finding of an acceleration/deceleration injury, including N.T.’s large subdural hemorrhage, and the localized brain damage that was explained by an expanding haematoma. In addition, he testified that N.T.’s injuries, specifically his retinal hemorrhages and subdural hemorrhages, can be caused by short falls. Dr. Ramsay explained that adults and children can suffer from subdural haematomas without being symptomatic immediately. They experience a “lucid interval” of seeming wellness until the accumulation of subdural blood and consequent compression of the brain results in drowsiness, headache, and loss of consciousness. Dr. Ramsay opined that while N.T.’s injuries could have been caused by the application of acceleration/deceleration forces, they also could have been caused by one or a combination of the three short falls he suffered.

[15] The trial judge preferred and accepted the Crown’s expert evidence that the only possible explanation for N.T.’s injury was severe inflicted head trauma, likely from acceleration/deceleration forces. The trial judge found that the injury could not have been self-inflicted as there was no evidence of a significant fall or a similar accident. She therefore concluded that the appellant intentionally applied force to N.T. and caused his head injury while he was in her care on July 20, 2016.

C. Issues

[16] The appellant raises several grounds of appeal. To dispose of this appeal, it is necessary to address only the ground that the trial judge erred in her assessment of the expert evidence concerning the cause of N.T.’s head injury.

[17] As I shall explain, the trial judge’s approach to assessing the expert evidence on causation was flawed. She first chose which expert she preferred and then viewed the other expert’s evidence and the rest of the trial evidence through that lens. This was an error. The trial judge should have considered the expert evidence, along with all the other evidence at trial, through the analytical framework prescribed by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, to determine whether the Crown had met its heavy burden of proving the appellant’s guilt beyond a reasonable doubt.

D. Analysis

[18] In the case of conflicting expert evidence that is crucial to understanding the material issues to be decided, it is tempting for a trier of fact merely to choose one expert over another, and to allow an expert witness’s evidence to distort the fact-finding process and overtake the task of objectively assessing the totality of the evidence at trial: R. v. Parnell (1983), 9 C.C.C. (3d) 353 (Ont. C.A.), at p. 364, leave to appeal refused, [1984] S.C.C.A. No. 333; R. v. Mohan, [1994] 2 S.C.R. 9, at p. 21. It is common ground that such an approach constitutes legal error. Unfortunately, that is what occurred in this case.

[19] A trier of fact must be careful to consider all of the evidence through the W.(D.) analytical framework. Specifically, to convict an accused, a trier of fact must be satisfied beyond a reasonable doubt, based on the totality of the evidence, that all the elements of the charged offence have been proven. This means that the evidence of each witness has to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of an accused person’s innocence: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Expert evidence is only a part of the evidence that a trier of fact is required to assess in order to determine if the Crown has proven an accused’s guilt beyond a reasonable doubt: see R. v. Wade (1994), 18 O.R. (3d) 33 (C.A.), at p. 43, rev’d in part, R. v. Wade, [1995] 2 S.C.R. 737; R. c. Blackburn, at p. 23; and R. v. Smith (2001), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 117, leave to appeal refused, [2002] S.C.C.A. No. 156.

[20] The Crown submits that, despite the language used in her reasons, the trial judge did not simply prefer one expert over the other. The Crown argues that when the trial judge’s impugned comments with respect to “preferring” Dr. Baird’s evidence are read in the context of the entirety of her reasons, it is evident that she rejected Dr. Ramsay’s evidence on lucid intervals and that she was not left in a reasonable doubt by his evidence.

[21] I disagree.

[22] Even when read generously and as a whole, the trial judge’s reasons demonstrate that she did not consider the expert evidence in relation to the totality of the evidence at trial. Instead, she determined in isolation that she preferred Dr. Baird’s evidence before she turned to the rest of the trial evidence, which she then assessed through the fixed lens of Dr. Baird’s opinion. This led her to misapply the W.(D.) framework. She rejected not only the defence expert evidence of Dr. Ramsay, but all the defence evidence because of its inconsistencies with Dr. Baird’s opinion. Further, she never meaningfully considered whether Dr. Ramsay’s evidence, along with all the other evidence that supported the defence, left her with a reasonable doubt as to the appellant’s guilt.

[23] The trial judge began her analysis of the competing expert testimony by effectively indicating, at para. 163 of her reasons that the test was whether she preferred one expert over the other and that she ultimately preferred Dr. Baird’s opinion:

For Dr. Ramsay’s alternate theory to be accepted, the court must prefer Dr. Ramsay’s evidence to the evidence of Dr. Baird on a number of key issues, including whether a child who had suffered injuries similar to [N.T.’s] can experience a lucid interval post-injury. Dr. Baird was unshaken in his view that in his experience and his review of the literature, there is nothing to support Dr. Ramsay’s “lucid interval” theory. [Emphasis added.]

[24] The trial judge’s uncritical acceptance of Dr. Baird’s evidence stands in marked contrast to her unfavourable treatment of Dr. Ramsay’s evidence where it differed from Dr. Baird’s opinion. While it was certainly open to the trial judge to find frailties with Dr. Ramsay’s evidence, her negative treatment of his evidence seems to have arisen from her acceptance of Dr. Baird’s evidence against which she was comparing it.

[25] The trial judge concluded that “the greatest frailty in Dr. Ramsay’s opinion related to his assertion that children can have lucid intervals following a head impact that has caused subdural bleeding.” She appears to have rejected Dr. Ramsay’s opinion about lucid intervals principally because it was inconsistent with Dr. Baird’s opinion, and because Dr. Ramsay did not reference any literature to support the lucid interval theory in his report and could not remember the names of relevant authors at the trial. However, the trial judge’s observation on the last point was incorrect. During his cross-examination, Dr. Ramsay referred to a paper by Denton and Mileseuvic, which described children who developed subdural haematomas after short falls, but who were well for a day or two after the falls.

[26] Although the trial judge correctly stated, at para. 181, of her reasons that “the opinions offered by Drs. Baird and Ramsay may not be permitted to usurp [her] role as the trier of fact” and that “while [she] may consider the opinions offered by each expert on how [N.T.] came to be injured, [her] decision must be based on all the evidence that [she] accepts,” she did not follow these instructions. Rather, before she looked at all the other trial evidence, including the appellant’s statement to police, the trial judge concluded, at para. 188:

For all … the foregoing reasons, I prefer the evidence of Dr. Baird and the first of Dr. Ramsay’s two possible explanations for [N.T.’s] injuries. Both explanations include a determination that [N.T.] suffered an inflicted acceleration/deceleration injury. [Emphasis added.]

[27] The trial judge turned next to assessing the other trial evidence and rejected any evidence that was inconsistent with Dr. Baird’s opinion. She applied the W.(D.) framework only to the appellant’s police statement and only through the lens of Dr. Baird’s opinion that none of the accidental events described by the parents and the appellant caused N.T.’s injuries. As earlier noted, the trial judge seems to have never applied the second prong of W.(D.) to consider whether Dr. Ramsay’s hypothesis that these accidental events could have caused N.T.’s injuries left her with a reasonable doubt as to the appellant’s guilt. She simply considered whether the appellant’s evidence left her with a reasonable doubt about her guilt and concluded that it did not because of her earlier acceptance of Dr. Baird’s opinion: “None of the accidental events described by [the appellant] in her statement to police or in the texts to [N.T.’s mother] can or do explain how [N.T.] came to suffer the acceleration/deceleration injuries.”

[28] The trial judge’s premature preference for Dr. Baird’s opinion is repeated in para. 212 of her reasons where she analyzes the “rest of the evidence” under the third prong of W.(D.) to determine whether the Crown had proven the appellant’s guilt beyond a reasonable doubt. It is clear that she analyzes the evidence in the light of her acceptance of Dr. Baird’s evidence, as she states:

Having preferred the evidence of Dr. Baird and Dr. Ramsay’s first hypothesis, I conclude that [N.T.] suffered an acceleration/deceleration injury sometime between approximately 8 a.m. and 11:30 a.m. on July 20, 2016, while he was in the care of [the appellant]. [Emphasis added.]

[29] Ultimately, the trial judge’s acceptance of Dr. Baird’s opinion led her to conclude that there was no evidence of a significant fall or similar accident that could have caused N.T.’s injury and that “there are no plausible theories or reasonable possibilities inconsistent with a finding of guilt.”

[30] By preferring one expert over another, without examining the expert evidence through the W.(D.) framework and in the context of the totality of the evidence, the trial judge fell into legal error. The expert evidence was crucial to the principal issue of the causation of N.T.’s head injury. A new trial is therefore required.

E. Disposition

[31] For these reasons, I would allow the appeal and order a new trial.

Released: August 19, 2021 “D.W.” “L.B. Roberts J.A.” “I agree David Watt J.A.” “I agree M. Jamal J.A.”