Court of Appeal for Ontario

Date: 2025-07-24
Docket: C70492
Coram: Simmons, George and Pomerance JJ.A.

Between:
His Majesty the King (Respondent)
and
Denim Henderson (Appellant)

Appearances:
Stephen Whitzman, for the appellant
Lisa Joyal and Avene Derwa, for the respondent

Heard: 2025-02-26

On appeal from the convictions entered on December 10, 2021 by Justice Laura A. Bird of the Superior Court of Justice, sitting with a jury.

Simmons J.A.:

Introduction

[1] The issues on appeal concern the propriety of joining charges for aggravated assault and failing to provide necessaries of life in an indictment charging second degree murder and whether a discreditable conduct instruction was necessary in the circumstances of this case.

[2] Nine-month-old Kaleb McKay was found dead in his crib on December 29, 2016. On December 10, 2021, a jury found the appellant not guilty of second degree murder but guilty of manslaughter, aggravated assault and failing to provide necessaries of life. The indictment alleged that each of these offences was committed on or between the 29th day of September 2016 and the 29th day of December 2016.

[3] The appellant raises three issues on his conviction appeal:

i. the indictment was invalid because it contravened s. 589 of the Criminal Code, R.S.C. 1985, c. C-46 by improperly joining counts for other offences (aggravated assault and failing to provide necessaries of life) to an indictment charging second degree murder;

ii. in the alternative, the jury was not properly instructed on the use that could and could not be made of evidence concerning two classes of injuries: older injuries that were not capable of constituting a significant contributing cause of death and more recent injuries that were capable of constituting a significant contributing cause of death; and

iii. in the further alternative, the trial judge erred by instructing the jury that the aggravated assault count could relate to either or both the older injuries or the more recent injuries that were capable of being a significant contributing cause of death.

[4] For the reasons that follow, I would dismiss the appeal. [1]

Background

[5] The appellant moved into the apartment where Kaleb lived with his mother and four-and-a-half-year-old sister about two to two-and-a-half months before Kaleb’s death. Kaleb’s mother had separated from Kaleb’s biological father, Mark McKay, approximately one month earlier, in September 2016.

[6] The appellant found Kaleb dead in his crib on December 29, 2016, about four hours after putting him down for an afternoon nap. Kaleb had been dead for some time when the appellant found him. He was lying face down and was cold to the touch. Rigor mortis had set in, and he had fixed lividity (fixed gravitational pooling of blood after death) on his front, but with lividity sparing, indicating he had been face down.

[7] The forensic pathologist (the “pathologist”) who conducted the post-mortem examination was unable to determine the precise cause of Kaleb’s death. However, he did determine that Kaleb had what the pathologist characterized as “inflicted” injuries to almost every part of his body in various stages of healing.

[8] Significant injuries caused around the time of Kaleb’s death included several fractured ribs and vertebrae, a fractured jaw, significant bruising to his chin and badly torn upper and lower frenula. Although the pathologist could not say precisely how Kaleb died, he was of the view that the injuries Kaleb suffered near death played a significant role in his death. Possible causes of death included: smothering, flail chest, positional asphyxia and a previously undetected heart condition that may have produced some type of arrythmia, albeit the pathologist viewed the latter as “less likely”.

[9] Other older healed injuries that did not play a significant role in Kaleb’s death included a broken right arm, a broken right leg and a skull fracture. [2] The pathologist opined that while these injuries could have occurred within six weeks prior to death, they could also have been as old as eight to nine months. Similarly, various rib fractures the pathologist described as healed or with healing components could have occurred within six weeks prior to death but could have been as old as nine months. Even though the older rib fractures did not constitute a significant contributing cause to Kaleb's death, they could have contributed to the ease with which some of the subsequent fractures occurred.

[10] Kaleb’s last visit to his family doctor was on November 14, 2016. At that time, Kaleb’s doctor considered him to be a normal, healthy baby.

[11] The appellant was eventually charged with second degree murder, aggravated assault and failing to provide the necessaries of life in relation to Kaleb.

[12] The appellant testified at his trial and denied that he injured Kaleb when putting him down for his nap on December 29, 2016, or at any other time. Kaleb’s mother also testified. She claimed that she saw the appellant put Kaleb down on his side for his nap on December 29, 2016, that Kaleb was uninjured at the time and that she was not aware of the appellant or anyone else causing any injuries to Kaleb.

[13] The appellant’s primary position at trial was that causation had not been proven. The pathologist described the cause of death as unascertained. As such, it was not clear that it was the result of human action. Kaleb had a heart issue as well as osteopenia (decreased bone mineralization), which could have made him susceptible to fractures. His sister could have caused his death accidentally. If inflicted injuries proximate to death were a significant contributing cause of Kaleb’s death, his sister [3] could have inflicted them as well as the older injuries. Kaleb’s biological father could also have been the perpetrator of the older injuries, which the appellant asserted he had no opportunity to inflict. In the alternative, he lacked the intent for murder.

[14] The Crown’s position was that the jury had to consider the medical and non-medical evidence together to determine what happened to Kaleb. The Crown invited the jury to reject the appellant’s evidence, as well as that of Kaleb’s mother. The Crown asked the jury to find that all of Kaleb’s injuries had occurred since his last medical appointment and that there was no reasonable basis to conclude that either his mother or his four-and-a-half-year-old sister had inflicted them. The Crown relied on evidence of the appellant’s inexperience as a caregiver and frustration in dealing with Kaleb as evidence of the appellant’s guilt.

[15] The trial judge instructed the jury that they could find the appellant guilty of aggravated assault based on injuries capable of amounting to aggravated assault (broken bones and the torn frenula, the “qualifying injuries”) that occurred on December 29, 2016 (the “recent qualifying injuries”), or based on older qualifying injuries that occurred prior to December 29, 2016 but otherwise within the three-month period covered by the indictment (the “older qualifying injuries”).

[16] The jury found the appellant not guilty of second degree murder but guilty of manslaughter, aggravated assault and failing to provide necessaries of life.

[17] Because it was unclear from the jury’s verdict whether they found the appellant guilty of aggravated assault based on the recent qualifying injuries or both the recent and older qualifying injuries, it was necessary that the trial judge make that factual determination when imposing sentence. She concluded that “on several occasions prior to December 29, 2016, [the appellant] applied a significant amount of force to Kaleb that resulted in a fracture to his arm, his leg, his skull, three of his vertebrae, and many of his ribs”. Further, she found that it would have been obvious to [the appellant] that he had hurt Kaleb and “[n]ot only did he not disclose to anyone that Kaleb was hurt, he failed to obtain any medical treatment for him”.

[18] In the result, the trial judge sentenced the appellant to nine years’ imprisonment for manslaughter, three years’ imprisonment consecutive for aggravated assault, and one year imprisonment concurrent for failing to provide the necessaries of life, for a total of twelve years’ imprisonment, less one year of credit for pre-sentence custody and strict bail.

Discussion

(1) The validity of the indictment

[19] The appellant’s first argument is that the indictment was invalid because it contravened s. 589 of the Criminal Code by joining counts for other offences to an indictment charging murder.

[20] Section 589 prohibits the joinder of counts charging an indictable offence other than murder in an indictment charging murder subject to two exceptions contained in subsections (a) and (b), respectively, “the same transaction exception” and the “consent exception”:

589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless
     (a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or
     (b) the accused signifies consent to the joinder of the counts. [4]

[21] The Crown relies on both exceptions in s. 589 in support of its position that the indictment is valid. Although there is no evidence that the appellant explicitly consented to joinder of the counts, the Crown submits that he did so implicitly through various actions, including confirming at the judicial pre-trial that he would not be seeking severance.

[22] The appellant submits that the older qualifying injuries were not alleged to be a significant contributing cause of Kaleb’s death and therefore did not “aris[e] out of the same transaction” as the murder charge. He submits that evidence of the older qualifying injuries clearly would cause prejudice to him on the murder charge. Further, if the Crown intended to rely on evidence of those injuries as an exception to the general rule excluding other discreditable conduct evidence, the Crown was obliged to bring an application to have such evidence admitted but did not do so. The appellant submits the aggravated assault charge caused irreparable prejudice to him in relation to the murder charge and should not have been joined in the same indictment.

[23] The appellant also argues that the moral prejudice arising from trying the murder and aggravated assault charges together was even greater in relation to the aggravated assault charge. On appeal, the appellant acknowledges that, realistically, he had the exclusive opportunity to inflict the recent injuries that occurred on and around the date of Kaleb’s death and that the only viable defence to the murder charge was that the Crown failed to prove causation beyond a reasonable doubt. A finding that the appellant inflicted the recent injuries that occurred on and around the time of Kaleb’s death increased the likelihood that the jury would find that he inflicted the older qualifying injuries. However, with respect to the older qualifying injuries, there was a viable alternate suspect, namely, Kaleb’s biological father, Mark McKay.

[24] Although trial counsel failed to bring a motion to sever, the appellant submits that this is a case in which the trial judge should have severed the counts ex proprio motu, and that her failure to do so resulted in an unfair trial and a miscarriage of justice. Further, the appellant says that he did not “signify consent” to the joinder of counts merely because his trial counsel did not seek severance.

[25] The appellant acknowledges that the trial judge left both the recent and older qualifying injuries with the jury as a basis for the jury to find him guilty of aggravated assault but submits this too was an error. It is undisputed that aggravated assault is not an included offence to second degree murder. He asserts that alternative pleading is not permitted, and that the Crown was required to elect between murder and aggravated assault with respect to the recent qualifying injuries that may have been a significant contributing cause of death. Because the appellant was charged with second degree murder, the aggravated assault count had to be limited to the older qualifying injuries, and as they did not arise from the same transaction as the injuries that occurred on and around the date of Kaleb’s death, the aggravated assault charge should not have been included in the indictment.

[26] The appellant does not dispute that the count of failing to provide necessaries of life could properly be joined to the offence of murder as arising out of the same transaction. However, to do so, he submits that the Crown was required to restrict the time frame of the charge to the timing of the recent injuries that may have been a significant contributing cause of Kaleb’s death. Framed as it was, the count suffered from the same frailties as the aggravated assault count. It did not arise out of the same transaction and created significant prejudice to the appellant.

[27] I would not accept these submissions.

(a) The Crown was not required to elect between charging second degree murder and aggravated assault with respect to the recent qualifying injuries

[28] As a starting point, I reject the appellant’s submission that, in relation to the injuries that were capable of being a significant contributing cause of Kaleb’s death, the Crown was required to elect between charging second degree murder and aggravated assault, and that alternative pleading is not allowed. Accordingly, I also reject his submission that the indictment was invalid for including the offence of aggravated assault, at least with respect to the recent qualifying injuries. Instead, I conclude that the real issue with respect to the appellant’s first ground of appeal is whether the trial judge erred by leaving both the recent and older qualifying injuries with the jury as a basis for finding him guilty of aggravated assault because the older qualifying injuries did not arise from the same transaction as that forming the subject matter of the second degree murder charge.

[29] The validity of the indictment was not raised as an issue in the court below. On appeal, the appellant does not challenge the validity of the time frame set out in the indictment with respect to the second degree murder count, nor did he seek to have it amended either at trial or on appeal. All counts in the indictment covered the same time frame and the Crown relied on the recent qualifying injuries to support a finding of guilt on all charges. In the result, all charges in the indictment arose, at least in part, from the same factual circumstances and therefore, clearly, from “the same transaction” at least with respect to the recent qualifying injuries.

[30] The appellant provided no support for his argument that pleading in the alternative in relation to a murder charge is not permitted and that the Crown was not entitled to, in effect, plead an alternate route to liability for the recent qualifying injuries if the jury found the appellant not guilty of second degree murder or manslaughter.

[31] As I will explain more fully below, s. 589 was amended in 1991 to add the two exceptions included in subsections (a) and (b) with the stated purpose of permitting other offences, such as sexual assault and robbery, to be joined with a murder charge if a person was killed during their commission: R. v. Manasseri, 2016 ONCA 703, para 67.

[32] The Parliamentary Secretary to the then Minister of Justice and Attorney General of Canada when setting out that purpose during second reading of Bill C-54 also explained that because, prior to its amendment, s. 589 contained an absolute prohibition against joinder of counts other than murder with a murder count, prosecution of such other offences “does not take place unless there is an acquittal on the murder charge.” The proposed amendment would allow joinder of such other offences and “[a]s a result the fact finding process will be much improved and justice will be better served since the possibility of delays will be greatly diminished.” One stated purpose of s. 589(a) was thus to allow an improved and more efficient fact-finding process based at least in part on permitting alternative pleading.

[33] Further, in R. v. Forcillo, 2018 ONCA 402, para 49, this court made clear that, in an indictment charging murder, one transaction can give rise to more than one charge. Forcillo involved an accused police officer charged with both murder and attempted murder arising from two volleys of shots fired at the deceased in quick succession. The murder charge related to the first volley of shots, which caused the death of the accused, the attempted murder charge related to the second volley of shots, which was not a significant contributing cause of death. The accused was acquitted of murder but convicted of attempted murder. On appeal, this court rejected the appellant’s submission that the jury should have been told that they could convict of attempted murder only if they found the second volley of shots was a “discrete transaction” from the first volley. In so concluding, this court stated:

The jury had two counts to consider. The characterization of conduct as involving one or more transactions is primarily a distinction drawn for the purposes of determining whether a charge as framed by the Crown conforms with the pleading requirement in s. 581 and s. 589 of the Criminal Code. There is no pleadings rule that one transaction cannot give rise to more than one charge. The characterization of two volleys as one or two transactions was irrelevant to the jury's determination of whether the Crown had proved the allegation in either or both counts in the indictment beyond a reasonable doubt. [Emphasis added.]

[34] Based on the foregoing reasons, I would not accept the appellant’s submission that the indictment was invalid.

(b) The trial judge did not err in leaving both the recent and older qualifying injuries with the jury as a basis for finding the appellant guilty of aggravated assault: all counts as left by the trial judge arose from the same transaction

[35] The leading Ontario case on interpretation of the same transaction requirement in s. 589(a) of the Criminal Code is R. v. Manasseri, 2016 ONCA 703.

[36] Manasseri was a case in which the deceased was initially assaulted by Mr. Manasseri while attempting to order drinks at a bar. The witness descriptions of the assault varied, but at least some included details of Mr. Manasseri smashing the deceased’s head against the metal surface of the bar. After the deceased was ejected from the bar, a second assailant, Mr. Kenny, left the bar, approached the deceased, grabbed him by the shirt and punched him in the head. The deceased fell to the ground unconscious. He was taken to hospital by ambulance but died the next day. Mr. Manasseri was charged with second degree murder, Mr. Kenny with manslaughter. The two were tried together. A jury found Mr. Manasseri guilty of murder and Mr. Kenny not guilty of manslaughter but guilty of assault causing bodily harm. One of their grounds of appeal was that joinder of the counts was improper because the manslaughter count did not arise out of the same transaction as the second degree murder count.

[37] In Manasseri, at para. 68, citing R. v. Borowiec, 2016 SCC 11, para 18, Watt J.A. noted that the modern rule of statutory interpretation applies to the interpretation of s. 589 and requires that the words of the section be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament.

[38] After considering the words “transaction” and “same” in their ordinary and grammatical sense, the word “transaction” and the phrase “same transaction” as they appear elsewhere in the Criminal Code, and judicial consideration of those provisions, at paras. 79 and 80, Justice Watt set out the following important conclusions concerning the application of the relevant principles to that case:

It is neither necessary nor desirable for my purposes to essay an exhaustive definition of the term “transaction” as it appears in s. 589(a). Nor is it necessary to strictly import the interpretations that have been offered in relation to other provisions. It is enough to say that a “transaction” is not confined to a single event or occurrence. Rather, the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time. In this case, although discrete events committed by different people, they reveal an underlying factual, legal and temporal unity that permits them properly to be labeled as part of “the same transaction”.

[…] Common sense should be our guide in deciding whether separate acts or events can comfortably wear the clothes of “the same transaction”. These events should not be subjected to metaphysical examination, artificial contraction or unreasonable expansion to force upon them a different complexion than they, in their totality, otherwise display. Nor should the propriety of joinder be dictated by expert medical opinion about the relative impact of discrete blows on what caused a deceased to die. Such evidence is no more dispositive on the issue of the propriety of joinder than it is on the cause of death. [Emphasis added.]

[39] In deciding that joinder was appropriate in Manasseri, Justice Watt noted that the fundamental issue in that case was criminal responsibility, namely, who was legally responsible for the unlawful killing, and that significant contributing cause was the standard for criminal responsibility. That standard, meaning in that case, whether either or both parties were a significant contributing cause of the death, “provided the necessary legal and factual connective to warrant joinder.”

[40] In this case, the primary issues at trial relevant to the question whether the older qualifying injuries occurred as part of the “same transaction” as the recent qualifying injuries identified as potential significant contributing causes of Kaleb’s death are causation and identity.

[41] Because of the pathologist’s inability to identify the cause of death, the Crown relied on the totality of Kaleb’s injuries in support of its position that death was caused by human action to, in effect, eliminate the possibility that death may have been due to natural causes. Further, because of the inability of the pathologist to precisely date Kaleb’s injuries, the Crown relied on Kaleb’s visit to the family doctor on November 14, 2016 and the appellant’s inexperience and impatience in baby care to support its position that, realistically, the appellant was the only possible perpetrator of the numerous injuries Kaleb had suffered, including those that were a significant contributing cause of his death.

[42] On the particular facts of this case, the older and more recent qualifying injuries have a sufficient factual, legal and temporal connection to meet the “arises out of the same transaction” criterion in s. 589(a). Although the older and more recent qualifying injuries were caused by discrete events that occurred over a period of time, that does not automatically disqualify them from meeting the arising out of the same transaction criterion: Manasseri, at para. 79. As explained by Justice Watt, “‘transaction’ is not confined to a single event or occurrence.” Instead, “the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time” (emphasis added).

[43] In Manasseri, the “legal and factual connective” that supported joinder was the legal standard for criminal responsibility, significant contributing cause. Here, the legal and factual connective that supports joinder is the relevance of both the older and recent qualifying injuries to the issues of causation and identity in relation to Kaleb’s death. On the facts of this case, those issues could not properly be evaluated by the trier of fact without understanding the series of events that preceded Kaleb’s death. Those events are accordingly part of the “same transaction” as that term is used in s. 589(a). Common sense dictates that joinder is appropriate.

[44] In reaching this conclusion, I have considered the decisions on which the appellant relies to submit that the older and recent qualifying injuries did not arise out of the same transaction. I am not persuaded that such decisions mandate that finding.

[45] Three of the decisions on which the appellant relies predate Manasseri: R. v. Beausoleil (1997), 35 O.T.C. 255 (Gen. Div.); R. v. Poole (1997), B.C.A.C. 279 (C.A.); and R. v. Choy, 2008 ABQB 697, 456 A.R. 196 (Q.B.). None engages in the interpretive exercise conducted by Justice Watt in Manasseri.

[46] Beausoleil is factually similar to this case but does not assist in determining its outcome for reasons that I will explain in more detail below.

[47] Poole involved an alleged attempted murder that occurred close in time to a murder but that was allegedly committed by a different accused by means of an act that did not contribute to the deceased’s death (shooting at the deceased as he fled from the locale where he had been fatally shot). Accordingly, in Poole, although the events happened close in time, the murder and attempted murder charges were not legally or factually related.

[48] In Choy, the trial judge severed counts of assault causing bodily harm, child abandonment and failing to provide necessities of life from a second degree murder charge relating to a three-year-old child. Seemingly adopting a Beausoleil-type approach (which I will explain) to the interpretation of “same transaction” the trial judge noted that the non-murder counts were spread over time and “not intimately interwound in the alleged murder.” Given the reliance on Beausoleil and lack of interpretive analysis, I find this decision of no assistance. [5]

[49] In Beausoleil, the trial judge relied on s. 589 to sever counts of second degree murder and assault causing bodily harm. The murder charges related to the death of a three-month old child. The child’s body bore signs of child abuse, including multiple rib fractures and several leg fractures, and, as in this case, the pathologist was unable to say whether the mechanism of death was external or caused by disease.

[50] The trial judge’s interpretive analysis of “same transaction” in Beausoleil was limited. He did not specify his interpretation and, in deciding to sever, he relied on a narrow understanding of statements of legislative purpose made at the time s. 589 was amended. He focussed unduly on portions of these statements that referred to enabling “offences arising out of the same incident” to be tried together and “do[ing] away with” separate trials for offences committed at the same time as a murder. He also relied on a narrow description of the meaning of same transaction in R. v. McKibbon, 35 O.R. (2d) 124 (C.A.), [6] a decision the trial judge said was codified by the enactment of s. 548 of the Criminal Code.

[51] This limited analysis carried out in Beausoleil has now been superseded by Manasseri, in which Justice Watt considered the Parliamentary statement of legislative purpose referred to in Beausoleil but did not find “same transaction” confined to a single event or occurrence. Further, while Justice Watt found that “some contextual similarity exists between the committal authority of s. 548(1)(a) and the joinder authority of s. 589(a)”, he did not rely on McKibbon in his discussion of s. 548(1)(a), and, in any event, found it was not necessary to “strictly import [into s. 589(a)] the interpretations that have been offered in relation to other provisions [of the Criminal Code].” As I have said, the analysis in Manasseri has superseded Beausoleil.

[52] The appellant also referred to another decision that predates Manasseri, R. v. Riley, paras 10-28. Those paragraphs encompass Dambrot J.’s discussion of whether a charge of participating in the activities of a criminal organization arose out of the same transaction as a murder charge. On the facts of that case, Dambrot J. concluded that they did not. In his reasons, he noted that, following the amendment to s. 589 adding the exceptions from the absolute prohibition against joinder, two approaches had developed in Ontario to the interpretation of s. 589(a). In the first, R. v. Melaragni, Moldaver J. (as he then was) declined to apply the restrictive interpretation of “transaction” in s. 589 that been adopted in relation to s. 548. The second, set out in Beausoleil, adopted a narrower approach. Dambrot J. found the reasoning in Melaragni “unassailable”. Nonetheless, he did also observe that adopting the narrower approach would rarely prejudice an accused and would usually contribute to trial economy and consistent fact-finding. Significantly though, while it was unnecessary for him to decide the point, he also stated at para. 26, “it may well be that temporal congruency will not always be necessary to meet the test for joinder in s. 589”.

[53] In holding that, on the facts of Riley, the charges did not arise out of the same transaction, Dambrot J. observed at para. 26, “[p]ermitting joinder of the count alleging participation in the activities of a criminal organization for a seven month period after the murder risks diverting the attention of the jury into an inquiry into wholly different crimes”. That conclusion is not at odds with my conclusion in this case.

[54] The appellant also relies on two decisions that post-date Manasseri, R. v. Nimoh, 2018 ONSC 2745 and R. v. Jensen, 2021 MBQB 139. In both cases, the trial judge severed non-murder count(s) from a murder count. However, both cases are factually distinguishable from this case.

[55] In Nimoh, the accused was alleged to have stabbed two victims, hours apart in the same three-kilometer area of downtown Toronto. Both crimes involved unprovoked attacks on vulnerable, unarmed victims walking alone at night. The second victim died. The accused was charged with robbery and other offences in relation to the first victim and first degree murder in relation to the second. Because Nimoh involved different victims, it is factually distinct from this case and does not support the appellant’s position that the older qualifying injuries did not arise from the same transaction as the recent qualifying injuries and therefore should not have been left with the jury as a basis for a finding of guilt for aggravated assault.

[56] I would, however, note that, at paras. 78 and 79 of his reasons, McCombs J. set out his understanding from the authorities that for other counts to be joined in an indictment for murder, “they need not be part of a single occurrence or event, but at a minimum, the added charges must embrace a series of connected acts or events”. Further, “[w]here the added counts involve factual, legal, or temporal unity, those factors weigh in favour of permitting joinder.” However, “the decided cases make clear … [that] in the end, the inquiry must be case-specific, with common sense guiding the court’s consideration.”

[57] At para. 83 of his decision, McCombs J. provided a helpful discussion of the factors to be considered when deciding whether joinder is permitted under s. 589(a):

In determining whether s. 589(a) permits joinder, it is necessary to take into account all relevant factors, including but not limited to factors such as temporal and geographical proximity; whether the crimes involve the same or different victims; whether the crimes involve the same or different accused; the extent to which the issues in each count are the same; and whether the counts form part of a continuous or related chain of events.

[58] Jensen involved the murder of a young child and an assault, that resulted in bodily harm, of the child’s mother on the same day. It is factually distinct from this case and does not support the appellant’s position for the same reason as Nimoh. I also note that although the trial judge severed the counts, he ruled evidence relating to the assault on the mother admissible as being relevant to issues of animus and motive.

[59] As I have said, in Manasseri, as he was required to do, Justice Watt relied on the modern rule of statutory interpretation to consider the scope of s. 589(a). He did not find that the meaning of “same transaction” was confined by the portion of the Parliamentary statement of intent relied on by the appellant nor by the meaning attributed to that term, or to the term “transaction”, in other sections of the Criminal Code. He concluded that “transaction” can “embrace a series of connected acts or events that extend over a period of time” and that “common sense” should determine whether separate acts or events are part of the “same transaction”. In this case, although caused by discrete events, the older and recent qualifying injuries are linked by their legal and factual relevance to the issues of causation and identity. Moreover, allowing the aggravated assault and failing to provide necessities of life charges to proceed with the second degree murder charge based on both the older and recent qualifying injuries is entirely consistent with the parliamentary purposes in enacting s. 589(a) of improving the fact finding process and avoiding delay.

[60] I am fortified in my conclusion by the fact that the issues raised on appeal were not raised in the court below. Although not determinative, this is a factor worthy of consideration.

[61] Trial counsel relied on the joined counts in defending the murder charge. He did not dispute that the trial judge could leave both the older and recent qualifying injuries as a basis for a finding of aggravated assault. This was undoubtedly as part of an effort to provide the jury with an alternate, less culpable, route to liability. He did not contend that the older and more recent qualifying injuries did not arise from the same transaction. Moreover, advancing Kaleb’s biological father as an alternate suspect for the older injuries added credence to his alternate suspect defence. No doubt a jury would view with scepticism a claim that Kaleb’s four-and-a-half-year-old sister could have been responsible for all his injuries. Appellate counsel acknowledged that pointing to Kaleb’s sister, as a trial strategy, was unlikely to succeed.

[62] Defence counsel at trial was content to have all counts tried together, to have aggravated assault left with the jury as a potential alternate route to culpability in relation to the second degree murder charge and to have both the older and recent qualifying injuries left with the jury as a basis for finding the appellant guilty of aggravated assault. While the appellant’s appeal counsel has criticized trial counsel’s decision and claims it resulted in an unfair trial and miscarriage of justice, he did not advance ineffective assistance of counsel as a ground of appeal.

[63] Based on the foregoing reasons, I am satisfied that it was open to the trial judge to leave the older and recent qualifying injuries with the jury in support of the aggravated assault charge and that doing so did not offend s. 589 because, even if based on the older qualifying injuries, the count arose from the same transaction as the second degree murder charge.

[64] In the circumstances, it is unnecessary that I address the Crown’s argument that the appellant consented to the joinder of counts. I note that while the English version of s.589(b) uses the terminology “the accused signifies consent”, the French version states simply “l’accusé consent”. The significance, if any, of this difference in language, is best left to be resolved in a case that turns on the consent exception.

(2) The necessity of a discreditable conduct instruction

[65] In the alternative, the appellant submits the jury was not properly instructed on the use that could and could not be made of evidence of the older injuries and that he was severely prejudiced by this discreditable conduct evidence.

[66] As this is an alternative argument and therefore assumes that the jury was properly instructed that the older qualifying injuries could support a finding of aggravated assault, I take this submission to mean that the trial judge erred in failing to caution the jury against using a finding that the appellant inflicted the older injuries to reason that the appellant is a bad person likely to have inflicted the recent qualifying injuries – or vice versa.

[67] I would not accept this submission.

[68] No similar complaint was raised at trial. The evidence of both the older and recent qualifying injuries was left with the jury as forming the subject matter of the aggravated assault charge without objection by defence counsel at trial. The trial judge conducted a pre-charge conference in which at least portions of her proposed jury instructions were extensively vetted. Defence counsel at trial did not request that a discreditable conduct caution be included. While the responsibility for the jury charge ultimately lies with the trial judge, counsel’s silence reinforces the conclusion that an instruction regarding propensity reasoning was not required: R. v. Abdullahi, 2023 SCC 19, para 68.

[69] In this case, based on my review of the record, I am satisfied that defence counsel at trial turned his mind to propensity issues and chose not to seek a discreditable conduct caution in relation to the older and recent qualifying injuries evidence.

[70] Prior to the appellant testifying, but after three defence witnesses had been called (Kaleb’s maternal grandmother, the appellant’s mother, and a former babysitter), the Crown brought a mid-trial application seeking two rulings. First, a ruling that the appellant had put his character in issue by, among other things, eliciting evidence of how gentle and kind he was as a parent to Kaleb’s sister. Second, a ruling that it was entitled to call evidence about the appellant’s treatment of his biological son (for example, by yelling obscenities at him when he was two weeks old and would not go to sleep) and potentially other bad character evidence in response to the alternate suspect evidence.

[71] In the latter regard, Kaleb’s biological father, Mark McKay, had testified as a Crown witness. Evidence was elicited that he had a temper, had punched a hole in a wall, had threatened the appellant and had screamed at Kaleb’s sister, spanked her, and “yanked” her arm. In addition, the defence had elicited evidence from a former babysitter that Kaleb’s sister was a defiant child, with anger issues and who was very “hands-on” with Kaleb. The defence also proposed to call, as its next witness, a teacher who would say Kaleb’s sister punched her, overturned furniture, and otherwise acted aggressively, albeit after Kaleb’s death.

[72] Counsel and the trial judge agreed that the applications could be dealt with on the following basis:

• defence counsel at trial would not rely on Mr. McKay’s general disposition to cast him as an alternate suspect but would rely only on opportunity and his admission that he became frustrated with Kaleb when Kaleb would not go to sleep;
• the jury would be told that Mr. McKay’s disposition is irrelevant to his status as a third-party suspect;
• defence counsel at trial would not call Kaleb’s sister’s teacher as a witness and would rely only on the sister’s interest in Kaleb and somewhat hands-on treatment of him, as well as opportunity, to cast her as an alternate suspect;
• defence counsel at trial would not rely on evidence of the appellant’s treatment of Kaleb’s sister to suggest that the appellant was not the type of person to have injured Kaleb;
• the Crown could rely on evidence of the appellant’s frustration with Kaleb in suggesting that he had committed the offences but would not seek to call evidence about the appellant’s treatment of his biological son as a response to the alternate suspect evidence.

[73] In her jury charge, the trial judge instructed the jury that the evidence of how Mr. McKay treated Kaleb’s sister was relevant to only one issue at the trial, namely the reason why Kaleb’s mother and father broke up. [7] She also instructed the jury that they could not use evidence of Mr. McKay’s treatment of Kaleb’s sister to conclude that he is the type of person who would be more likely to harm Kaleb. Nor could they use evidence of the appellant’s relationship with Kaleb’s sister to conclude that he is the type of person who would be less likely to harm Kaleb. She also instructed the jury that they must not assume or conclude that because the appellant used marijuana, he was a bad person and therefore more likely to be guilty of the offences charged.

[74] Given these various discussions and instructions, I conclude that defence counsel at trial was alive to propensity issues and chose not to seek a discreditable conduct caution in relation to the older and recent qualifying injuries. Had he done so, the Crown could undoubtedly have sought a balancing instruction indicating that, if the jury were satisfied the appellant inflicted any of the injuries on Kaleb because he was an inexperienced caregiver and easily frustrated by Kaleb’s difficulty in going to sleep, they could use that evidence in considering whether the appellant had inflicted other injuries on Kaleb for the same reason. [8]

[75] This court has dismissed appeals based on the failure of a trial judge to instruct the jury on propensity reasoning, where such a failure did not prejudice the accused but in fact spared the accused from the reciprocal need for the judge to recite the available and damaging uses of such evidence: R. v. MRS, 2020 ONCA 667, para 101; R. v. Sandhu, 2009 ONCA 102, paras 12-18; R. v. N.T., 2011 ONCA 114, paras 20-22; R. v. Batte (2000), 49 O.R. (2d) 321 (C.A.), at paras. 113-114. I would reject this ground of appeal on this basis.

[76] In any event, even if a discreditable conduct instruction may have been warranted in this case, I am not persuaded that the evidence concerning the older injuries prejudiced the appellant in relation to the murder charge. The appellant has conceded on appeal that the only viable defence to the murder charge was causation. I see no realistic possibility that the jury would have misused a finding that the appellant inflicted the older injuries to make a finding of causation when considering the second degree murder charge.

[77] I am reinforced in this view by the fact that the jury found the appellant not guilty of second degree murder but guilty of manslaughter. The jury clearly did not rely on a finding that the appellant inflicted the older injuries to reason that he was a bad person and therefore likely to have formed one of the intents required for murder: Sandhu, at para. 18.

[78] Similarly, even if the jury used a finding that the appellant inflicted the recent qualifying injuries to conclude that he inflicted the older qualifying injuries, the appellant suffered no prejudice as a result. Based on the trial judge’s instructions to the jury on aggravated assault, the jury’s verdict would have been the same whether they found the appellant inflicted one qualifying injury or many. It was the trial judge who eventually made the finding, during the sentencing proceeding, that the appellant inflicted both the recent and the older qualifying injuries. I see no realistic possibility that in doing so the trial judge relied on improper propensity reasoning.

(3) The subject matter of the aggravated assault count

[79] In the further alternative, the appellant submits that the trial judge erred by instructing the jury that the aggravated assault count could relate to either the older or the recent qualifying injuries. The appellant submits that the aggravated assault charge should have been restricted to the older qualifying injuries to distinguish it from the second degree murder charge. The failure to distinguish the counts in this way resulted in ambiguity in the jury's verdict and required the trial judge to make findings of fact that were otherwise the province of the jury. The trial judge’s finding of a pattern of abusive conduct resulted in the appellant being subjected to an increased sentence.

[80] I would not accept this submission. At the pre-charge conference, defence counsel at trial agreed the impugned instructions were appropriate and never requested that the aggravated assault charge be particularized or restricted in the way that is now being suggested on appeal. The trial judge had observed during discussions about the Crown’s application for a ruling during the defence case that if there was a finding of guilt for aggravated assault, determining the basis for the finding would become a sentencing issue.

[81] As I have said, I am satisfied that defence counsel at trial took the position that aggravated assault should be left to the jury to leave open an alternate route to a finding of lesser culpability and also to support his alternate suspect application. He did not bring an application for severance. The necessity of the trial judge making findings of fact concerning the aggravated assault charge was a foreseeable consequence of these decisions: R. v. Ferguson, 2008 SCC 6, paras 17-18; R. v. Moreira, 2021 ONCA 507, paras 42-50.

Disposition

[82] Based on the foregoing reasons, I would dismiss the conviction appeal and dismiss the sentence appeal as abandoned.

Released: July 24, 2025

“J.S.”
“Janet Simmons J.A.”
“I agree. J. George J.A.”
“I agree. R. Pomerance J.A.”

Endnotes

[1] Mr. Henderson’s notice of appeal indicates that he is seeking leave to appeal sentence. However, his factum indicates that his sentence appeal is predicated on the conviction appeal and that if the conviction appeal fails, he does not argue that the sentences were unfit. I would therefore also dismiss the sentence appeal as abandoned.

[2] A pediatrician from the Hospital for Sick Children qualified to give expert evidence in assessment and interpretation of suspected child injuries gave evidence to the effect that while an expression of pain such as crying or screaming could be expected when certain fractures are suffered, a caregiver might not appreciate that subsequent fussiness would be associated with an injury.

[3] In a pre-trial ruling, the trial judge held that the appellant was entitled to identify Kaleb’s sister and mother as alternate suspects in relation to both the recent injuries and the older injuries and Kaleb’s biological father in relation to the older injuries. The appellant’s trial counsel did not point to Kaleb’s mother as an alternate suspect in his closing address to the jury but asked that the trial judge identify her as a possible alternate suspect in her jury instructions.

[4] Counsel did not refer to the French version of this section in their arguments. It reads as follows:

589. Aucun chef d’accusation visant un acte criminel autre que le meurtre ne peut être joint, dans un acte d’accusation, à un chef d’accusation de meurtre, sauf dans les cas suivants :
     a) les chefs d’accusation découlent de la même affaire;
     b) l’accusé consent à la réunion des chefs d’accusation.

[5] It is however interesting to note that despite severing the non-murder charges from the indictment, the trial judge ruled evidence relating to them admissible because it was relevant to the issue of the accused’s animus toward the victim and to rebut the defence of accident.

[6] McKibbon related to the power of the Crown to prefer a direct indictment where a preliminary hearing judge declined to commit an accused on additional offences disclosed by the evidence. In McKibbon, during a discussion of R. v. Chabot, [1980] 2 S.C.R. 985, this court said the following, on which the Beausoleil trial judge relied:

The issue will only arise in those cases where the additional counts disclosed by the evidence form an integral part of the offence with which the accused is charged, in other words, they are really a part of the same transaction. The acts on which these counts are based will be so closely interwoven with the offence facing the accused on the preliminary inquiry that they will be a part of the res gestae. Thus the evidence will be admissible on the preliminary inquiry as an essential part of the history of events pertaining to the charge under investigation. [Emphasis added.]

[7] Kaleb’s mother claimed she ended the relationship because she did not like the way Mr. McKay dealt with Kaleb’s sister. Mr. McKay testified they broke up because Kaleb’s mother was involved with the appellant and wanted to pursue a relationship with him. At trial, the appellant relied on Kaleb’s mother’s explanation as demonstrating that she protected her children from perceived harm.

[8] The Crown relied on these factors as the explanation for the appellant’s conduct in injuring Kaleb.