Court File and Parties
Court File No.: Sudbury 101931 Date: 2012-02-28 Ontario Court of Justice
Between: Her Majesty the Queen — and — D.M.
Before: Justice Randall W. Lalande
Heard on: May 17, July 19, 22, September 13, November 9, December 23, 2011 And: February 28, 2012
Reasons for Judgment released on: February 28, 2012
Counsel:
- Kara Vakiparta, for the Crown
- George Fournier, for the accused D.M.
LALANDE J.
REASONS FOR JUDGMENT
1: INTRODUCTION
[1] On May 17, 2011 Mr. D.M. entered a plea of not guilty to a single count information alleging that between June 1 and 30, 2009, he endangered the life of L.M. thereby committing an aggravated assault contrary to section 268 of the Criminal Code. On November 1, 2011, the information was amended at the request of the Crown. The word "maim" now replaces the words "endanger the life of". The charge now reads that Mr. D.M. did maim L.M. thereby committing an aggravated assault.
[2] The child, L.M. was born on […], 2009. He is now 2½ years old. The injuries he sustained giving rise to the charges against Mr. D.M. occurred within approximately the first 30 days of his life.
[3] D.M. is now 32 years of age. L.N. is now 29 years of age. They are the biological parents of L.M.. They met in June 2008 and started dating in July 2008. In early September 2008, Ms. L.N. discovered that she was pregnant. She and Mr. D.M. started living together in an apartment on Notre Dave Avenue in December 2008. They became separated toward the end of July 2009.
[4] Ms. L.N. is the biological mother and care giver of another child namely, K.M. born on […], 2003. Mr. D.M. is also the biological father of another child namely, P.M.1, who is now approximately five years old. P.M.1 resides with his mother. Mr. D.M. had liberal access and P.M.1 often visited with him and Ms. L.N. when they resided together.
[5] Dr. Natalie Goodale is the child L.M.'s family physician. She conducted a routine examination of L.M. on June 1, 2009 when L.M. was only a few days old. A second routine-type visit was scheduled for June 29, 2009. It was at this second visit that Dr. Goodale made certain observations which led to an investigation and ultimately to Mr. D.M. being charged with the offence now before the court.
2: EVIDENCE OF DR. NATALIE GOODALE
[6] On June 29, 2009, Dr. Goodale observed small six to seven millimetre purplish bruise on L.M.'s right cheek. She also discovered a healed disruption of the child's sublingual frenulum. The frenulum is the tissue connecting the underside of the tongue to the floor of the mouth.
[7] In her testimony, Dr. Goodale said that the frenulum was "torn". She indicated that she had not seen this type of injury in a child before. She told Ms. L.N. and Mr. D.M. that she was concerned about the two injuries that she had observed.
[8] Dr. Goodale was concerned over a possible abuse situation involving the child. She contacted Dr. Shawn Murray at the paediatric ward of the Health Sciences North (formerly Sudbury Regional Hospital). She advised the parents to attend at the hospital to have L.M. assessed. In terms of the reaction of the parents, she indicated the following:
- The mother was surprised but thought she should go immediately; the father did not have much of a reaction.
- Although the father never refused to go to the hospital, he debated going later during the day and raised the issue of arranging a ride to the hospital. His son was with him. In turn, the mother said she was prepared to take the bus right away.
3: EVIDENCE OF DR. SHAWN MURRAY
[9] Dr. Murray testified having examined L.M. at the hospital at the request of Dr. Goodale. He observed the same injuries described by Dr. Goodale. No other abnormalities were observed visually. He indicated that when he sees injuries to children that are not of the expected type, he often goes further and looks for more occult injuries.
[10] Dr. Murray admitted L.M. to the hospital and in consultation with Dr. John Burk Baird. A skeletal bone survey was ordered to look for any clinically unsuspected fractures. Blood work was also ordered to determine the possible existence of clotting. The results of the tests ordered shall be referred to later in the reasons when discussing Dr. Baird's evidence.
[11] Dr. Murray was asked about his observations of the parents. He said he could not recall any verbatim discussion, however, indicated recalling the mother saying that she could not understand how something "like this" could happen.
[12] Dr. Murray did not receive a specific explanation from the parents. He said that in a roundabout way, he overheard the parents discussing something about the possibility of a fall or whether the child could have inserted something in his mouth.
[13] Dr. Murray contacted the Children's Aid Society of the Districts of Sudbury and Manitoulin and told the parents that further investigation would be required. He indicated that the mother appeared to be a bit more shocked. The father, according to Dr. Murray, remained "cool" and displayed a bit of an indifferent reaction.
4: EVIDENCE OF DR. JOHN BURK BAIRD
[14] Dr. Baird is a paediatric emergency physician. He has on multiple occasions, given expert evidence in the area of child maltreatment and abuse. He currently practises family medicine within a private practice group namely, City of Lakes Family Health Team, Sudbury. He also sits on the Board of Directors.
[15] Dr. Baird confirmed that the skeletal survey and blood work took place the morning following L.M.'s admission to hospital. The blood work was normal. The skeletal survey was not.
[16] In terms of the injuries initially viewed by Dr. Goodale, Dr. Baird in his hospital report indicated the following:
The injury to the frenulum had healed by the time of admission. This would suggest that at some point since birth, a significant force was applied into L.M.'s mouth either externally or directly internally. This caused a disruption in the tissues of the frenulum which have subsequently had time to heal. The type of force required to cause such an injury is clearly far beyond the capacity of a one month old infant and was unquestionably cause by a force applied externally by another person;
The bruise on L.M.'s right cheek was not caused by anything that L.M. could have done his own. A crushing force would have had to have been applied to his cheek caused by the actions of another person. This resulted in disruption of the blood vessels and leakage of blood into the skin causing the bruise. The age of this bruise could not be determined by its appearance or colour.
[17] The skeletal survey was viewed and interpreted by Dr. Nizzero. Dr. Nizzero is a radiologist at the hospital. He is a specialist in interpreting x-rays and radiographic tests. Dr. Nizzero found that there were fractures to the ends of both of L.M.'s femurs. As explained by Dr. Baird, these fractures were to the thigh bones near the knee joints. There was also the same type of fracture at the upper end of the left tibia which is the shin bone. Dr. Baird indicated that these fractures are called metaphyseal fractures.
[18] Upon interpreting the x-rays, Dr. Nizzero also found that L.M.'s ninth rib on the right side, just beside the spine, had been fractured and was showing signs of healing. Because it was difficult to tell whether further injuries existed, a nuclear medicine bone scan was ordered. Dr. Baird explained that this involved a radioactive tracer injected into the blood stream. The injected chemical travels around the bloodstream and is taken up into areas of the skeleton or bone especially where there is increased activity or metabolic activity. In other words, if an injury was caused to a bone resulting in a lot of metabolic activity such as growth, there would be an increase of the chemical detected in that area.
[19] Dr. Webster is a nuclear medicine physician. He interpreted the results of the nuclear medical bone scan and determined injury to the right ninth rib. There was also injury on the left side of the rib cage to the seventh rib and possibly to the sixth rib. Dr. Baird described the injuries as rib fractures. He explained that the ninth rib on the right side is located at the back, slightly to the right of the spinal column. He indicated that the fracture to the seventh rib was in a comparable location slightly lateral to the left of the vertebral column. In other words, both fractures were located at the back near the spine.
[20] Dr. Baird went on to say that the x-rays were sent to medical colleagues at the Hospital for Sick Children. They were reviewed by two paediatric radiologists who confirmed the presence of the ninth right and seventh left rib fractures. They could not tell that the left sixth rib was fractured as well.
[21] Dr. Baird also indicated that the paediatric radiologists found that fractures existed to the ends of both shin bones, whereas his investigation had only indicated a fracture to the upper end of the left shin bone close to the knee.
[22] In summary, Dr. Baird explained that after the full investigation was completed, he believed that both ends by the ankle and both ends by the knee of the shin bone had metaphyseal fractures. Further, the paediatric radiologists indicated that they felt there was evidence of a fracture to the shoulder end of the humerai to both arms. In other words, they found evidence of growth plate injury at the upper ends of both arm bones. The paediatric radiologists involved were Dr. Nina Stein and Dr. Allen Daneman.
[23] Dr. Baird indicated that because of the intense forces known to be necessary to cause the types of injuries seen in L.M. and because of his young age, an MRI scan of the brain was performed. No abnormalities were found. Further, digital images were taken of his retinas. The images were transmitted for review to an ophthalmologist at the Hospital for Sick Children. There was no evidence of injury to the eyes.
[24] It was Dr. Baird's evidence that infants of this young age have extremely flexible and pliable ribs which are not easily fractured and which would require a tremendous amount of force to break. In his view, types of forces that cause these types of injuries in accidental circumstances may include a motor vehicle accident or say a high freefall. No such history was provided to Dr. Baird and as a result his report suggests that L.M. was squeezed forcefully around the chest by an adult where the fingertips were compressing the posterior ribs such as if he was held face to face with hands around the chest from the front. Squeezing in this position would cause a force over the posterior ribs which are supported at their connection to the vertebral column.
[25] He described the area of the break as a protected area not prone to movement and that the location of the fractures suggests there was direct pressure applied at the break points. An extreme amount of force would be required to fracture a child's ribs in this area.
[26] Dr. Baird was made privy to a possible explanation that Mr. D.M. may have fallen down a series of stairs while clutching L.M. in his right arm. Dr. Baird reviewed the circumstances of the story as told by Mr. D.M. and concluded that it would be extremely unlikely that this degree of force, which did not even wake the child up, would be sufficient to cause the rib fractures. In Dr. Baird's view, the location of these fractures would indicate a focal force over the ribs rather than a generalized compression of the chest against another person's chest. He went on to say that these types of fractures do not occur as part of regular, day to day life. They occur in exceptional circumstances such as would be the case of intense and forceful squeezing.
[27] In speaking about the injuries in the metaphyseal area, Dr. Baird gave the opinion that the types of forces required to cause such injuries would typically involve an intense wrenching, twisting or flailing of the limb. He gave the example of an adult grabbing a leg or arm and twisting it forcefully or of an infant being pulled forcefully by a limb or of an infant being shaken. Upon an infant being shaken, the violent flailing of the limbs could cause the types of injuries seen in L.M.
[28] Dr. Baird unequivocally indicated that a 2½ to 3 year old child could not inflict the injuries on a one month old baby thus ruling out the possibility that L.M.'s younger half-sibling could have been responsible for causing the damage. Dr. Baird plainly concluded that a 2½ to 3 year old child could not exert force strong enough to cause such significant fractures.
[29] Dr. Baird was asked about several other hypothetical situations which could possibly have caused injuries similar to those incurred by L.M.. These would include holding a baby upside down by the ankles, pushing down on a baby's legs to straighten them out when diaper changing, picking a baby up by the finger, wrapping a baby very tightly in a blanket or flipping a baby back and forth like a pancake from one hand to the other. Generally speaking, Dr. Baird could not conclude that such conduct unaccompanied by significant force of a severe repetitive back and forth flailing motion could cause these types of injuries.
[30] Dr. Baird concluded that L.M. did not fracture his own bones and absent a serious enough accident, the only source of force would be from the individuals around him and more particularly an adult person.
[31] The injuries to L.M.'s bones cannot be dated and it is not possible to say if they were simultaneously or serially inflicted. Essentially the injuries could have been caused all at the same time or at different times.
[32] In summary, Dr. Baird indicated that L.M. suffered four separate categories of injuries. He sustained an injury to the under-surface of his tongue and to the right cheek. He sustained injuries to his ribs and to the metaphyseal areas of at least three bones. In Dr. Baird's view, none of these injuries could conceivably have occurred as a result of L.M.'s own movements or actions and that they are unquestionably, in the absence of documented abnormalities or serious accident, the actions of an adult care giver in his life.
5: EVIDENCE OF L.N.
[33] Ms. L.N. confirmed that Mr. D.M.'s son, P.M.1 at age 2½ years was often at the apartment for two to three days at a time. Her daughter, K.M. was 5 years old when L.M. was born. K.M. went to school and returned home at 3:30 p.m. on school days.
[34] Mr. D.M. looked after the baby to give Ms. L.N. a break especially between breast feeding times. He cared for the baby when she had a shower or took a nap. On one occasion on June 12, 2009, she went to Walmart with Mr. D.M.' sister. She was gone for about one hour. Mr. D.M. babysat during the time she was away.
[35] Ms. L.N. testified that Mr. D.M. was not always careful when handling the baby. She gave an example of him not supporting the child's neck while balancing him on his knee, holding the baby up by his index fingers, picking him up at least one time by the ankles and hanging him upside down, holding him one time in the palm of his hand and flipping him to the other hand, wrapping him too tightly and placing the baby on his chest with his legs folded.
[36] On the other hand, Ms. L.N. never directly observed the father intentionally harming or hurting the child, nor did she ever hear anything unusual which would have triggered her concern in that regard. Ms. L.N. thought that the small bruise to the cheek could possibly have been caused by the child, P.M.1. After the baby was seen by Dr. Goodale, Mr. D.M. did tell her that he thought he had left the child alone with P.M.1 when he had gone in to the kitchen.
[37] Ms. L.N. confirmed that upon being asked to go to the hospital by Dr. Goodale, Mr. D.M., who had his son P.M.1 with him, asked if he could go later on. Upon being advised by Dr. Murray that the child had multiple fractures, she stated that she looked at Mr. D.M. and said "What did you do?" According to her evidence, he started crying and said something along the lines "I didn't mean to, it was an accident (or words to that effect)." In Ms. L.N.'s mind, she thought that when the father uttered the words "I didn't mean to", he was referring to the fall downstairs.
[38] Ms. L.N. confirmed that within the first 30 days of L.M.'s life, only the two of them were present to look after him. Only after the injuries were discovered did Mr. D.M. disclose to her that he actually fell or partially fell downstairs while holding the baby. When he told her this, she assumed he was taking about the basement stairs. When he made the disclosure at the hospital, she thought he seemed nervous. She recalled him telling her that the incident occurred because he had almost tripped while going downstairs and at the time, he may have been squeezing the baby too tightly.
[39] In terms of her own care of the child, Ms. L.N. stated "I never caused the injuries." She was quite concerned about the fact that Mr. D.M. prior to the discovery of L.M.'s injuries had not told her anything about having fallen or partially fallen down the stairs with the child. By way of explanation, the father indicated that he never thought of disclosing having fallen with the child because the child had not been injured.
[40] The gist of Ms. L.N.'s evidence was that she trusted the father's handling of the child and it never occurred to her that he would intentionally injure the child. Initially she thought that perhaps Mr. D.M.' son P.M.1 may have poked at the baby thereby causing a bruise to the cheek. Prior to attending Dr. Goodale's office, she had no idea that the baby's frenulum had been torn.
[41] On December 12, 2009, in the late afternoon, the mother and her sister found a new bruise on the child. This bruise was in the area of the mid right arm. Ms. L.N. indicated that the child had earlier that day, been with Mr. D.M.. She now thinks that the child incurred the injury during that visit. She also stated that about one month prior to December 12, 2009, she had noticed scratches on the child. She did not, however, at that time suspect that anything was wrong.
[42] The mother also spoke about another injury which occurred on May 8, 2010. Both parents had each had a visit lasting about two hours. The visits were closely monitored. Her visit took place first. At some point during that day, L.M. sustained a fractured tibia. To this day, the cause of that injury remains unknown.
[43] The parents separated in late July 2009 due to what Ms. L.N. described as trust issues. She remained upset that he had never disclosed having fallen with the child. She was also upset because he was allegedly untruthful about certain circumstances surrounding a visit between himself and his son P.M.1's biological mother N.B..
[44] Ms. L.N. testified on July 19 and 22, 2011. She was re-called to give further evidence on September 13, 2011 by virtue of what the Crown described as "new developments".
[45] For a period from July 9 to March 20, 2010, Ms. L.N.'s son K.M. was placed in the care of his paternal grandparents, V. and P.M.2. He then went into foster care. On August 18, 2011, he is reported to have said certain things to his foster mother which the Crown felt compelled to disclose. He indicated recalling his mother becoming angry with L.M. because L.M. was crying. He said she shook and banged his legs on the edge of a change table. He also indicated that his mother got angry at him and threatened to kick him in the head.
[46] It is not possible to attribute any reliability to this information. K.M. was not called as a witness. The foster mother was not called as a witness. The circumstances under which K.M. apparently said these things were not fully disclosed. Moreover, Ms. L.N. adamantly denied losing her temper with L.M. or with K.M.. She was a straightforward and believable witness. She held up well during cross-examination and did not attempt to embellish or exaggerate her evidence. She was a very believable witness.
[47] In Ms. L.N.'s view, it was most concerning the K.M. would say what he did some two years after the fact. She surmised that someone may have spoken to K.M. and influenced him to say these things. She also theorized that K.M. wanted to return home and may have told stories in an effort to trigger reunification of the family.
6: EVIDENCE OF D.M.
[48] Mr. D.M. did not testify. He was, however, interviewed at length by Detective Ramsey on July 6, 2009 and October 25, 2009. The interviews were videotaped, transcribed and entered into evidence. In the July 6, 2009 interview, Mr. D.M. made a number of statements relevant to the injuries sustained by the child. He also, on a number of occasions, attempted to provide explanations about how the injuries may have occurred. The interview was quite lengthy. For the sake of expediency, it is not possible to refer to Mr. D.M.' statement at length. The following excerpts (some of which have been referred to by the Crown in her submissions), provide insight into Mr. D.M.' behaviour and his handling of the child:
Page 13 – "How I change him and how I am a little rough with him and stuff like that".
Page 19 – "...I think that could have been the cause why I wasn't as cautious as I should have been with L.M......And, like, I know I'm lost likely the culprit here for the injuries because I handle him rough. And I know L.N.'s said stuff to me, but I thought, I'm a pretty competent father....."
Page 20 – "So there'd be a lot of little things that when I started thinking about it after everything happened, that were kinda clicking in my head, like, that's probably what kinda – that's probably what caused the leg, that – that's could've been what caused the rib. And it just started making sense to me, like, I was just rough with him." "....I don't know, I didn't mean to be excessively rough with him, but at the same time, like, I was uh, from my Jiu-Jitsu and stuff like that."
Page 21 – "...it dawned on me that too, like, when I started that, like, almost two years ago, it sort of like, desensitized me to like, delicate things..."
Page 28 – "...So, the way I'd change him was I'd be like, uh, I'd grab his legs and kinda hold them together, but he'd be kinda squirming his legs around so I'd – I'd squeeze. I guess, obviously, too tight, and then pull up on them so I could clean him properly....And uh, I'm pretty sure that's – that's what must have caused those fractures in his legs. I know they said it was, like, more severe.....But then again, I might not have known my strength. I could have been using too much...."
Page 29 – "And when I – you know, I'd be rough with him. I'd be fast ....And I know he's a – he's a baby but he's also like, my baby boy, so like, I'd kinda want to be a little tough, so, I mean, that's not – I wasn't intentionally hurting him or being rough with him to – to injure him".
Page 30 – "So I'd wrap him up really tight, and like, I'd – I'd hold his legs straight, so, like, maybe if his feet were together his – his knees might have buckled in. Like, it could've caused fractures that way....I mean, that's what I honestly believe to be the cause of those, and which is kinda sad, cause it's me.....The father. You know, I feel – I've never felt more terrible in my life, to tell you the truth."
Page 33 – "...And a few times maybe I wasn't paying attention so I'd be like rocking up like this to get up or pushing off and that honestly is what I believe to be the cause of his uh, rib injuries. Could be – could be his leg too, but you know what I mean, just—just the fact of me bending and like squishing to go up."
Page 179 – "...I feel like I – I should have been easier handling him. Like, uh, wrapping him up maybe not as tight in that weird position."
Page 180 – "I mean, it's – it's me that has to improve, not her. She has – she's so gentle with him and I'm so rough with him, like it's like night and day".
Page 181 – "...I mean, all these injuries, like, I didn't know I could have been causing, you know what I mean?....I feel terrible. Like, honestly I feel – like, I cry lots now ."
[49] Mr. D.M. admitted being rough with the child. He suspects that his rough handling of the child may have caused or contributed to some of the child injuries. He admits not paying sufficient attention to his own strength especially because of his training in Jiu-Jitsu. He ponders his lack of sensitivity. He gives the impression of wanting to admit having caused the injuries but at the same time, wanting to maintain that he did so unintentionally.
6: ANALYSIS
[50] It must be remembered that the child L.M. was seriously injured within the first 30 days of his life. His mother and father were his only full-time caregivers. There is little evidence, circumstantial or direct, to support a reasonable inference that a third party may have surreptitiously caused the injuries.
[51] Mr. D.M. advanced a number of explanations to Officer Ramsey in order to illustrate how L.M. may have been injured. For example, he described in great detail how he fell down the basement stairs while holding L.M. in his right arm. He re-enacted how, with the benefit of Jiu-Jitsu training, he rolled on the cement floor while holding L.M.. By doing so, he was in fact attempting to explain some of the child's injuries. At the same time, he was not sure whether the incident caused the child pain. In fact, he was not sure whether the child ever woke up.
[52] In the last videotaped statement of October 25, 2009, Mr. D.M. essentially repeatedly indicated that he did not intentionally injure the child. It is important to pay close attention to some of Mr. D.M.' comments in the July 6, 2009 videotaped statement. Some of his comments are very telling including the following:
- "I am a little rough on him";
- "I wasn't as cautious as I should have been";
- "I know I'm most likely the culprit here for the injuries because I handled him rough";
- "I didn't mean to be excessively rough";
- "I'm pretty sure that's what must have caused those fractures in his legs".
[53] Mr. D.M. generally spoke about being rough with the child. He also intimated that he may not have known his own strength. In his statement of July 6, 2009, he referred on several occasions to his Jiu-Jitsu training. At one point, he referred to being desensitized. He referred to desensitization in the context of delicate things.
[54] Nobody actually saw how L.M. became injured but the evidence is clear that the injuries were serious, required a significant degree of force and were caused at the hands of someone, namely an adult. The court remains mindful that the burden of proof at all times remains upon the Crown. The Crown must establish the guilt of an accused person beyond a reasonable doubt. The court must consider the whole of the evidence in order to establish whether the Crown has met the burden of proof.
[55] In the court's view, Mr. D.M. made a number of self incriminating comments such as "I'm most likely the culprit here", because he knew that he had done something wrong. The strong inference to be drawn here is that he wanted to explain that he caused the injuries but at the same time, could not bring himself to say that he did so intentionally.
[56] It is not likely that Mr. D.M. was being truthful in advancing a possible explanation that the child may have been injured as he (Mr. D.M.) fell down a series of stairs while holding the child. This appears to be more of a false explanation because he knew the child had not been injured. The explanation was advanced because it had the feature of being an accident. In other words, if the child were injured as a result of the accident (which is not even consistent with the medical evidence) Mr. D.M., in his own mind, could not be blamed with having intentionally injured the child. Dr. Baird was specifically asked about other hypothetical situations involving the way that Mr. D.M. handled the child. As already indicated, he could not conclude that the conduct described could, unaccompanied by significant force of a severe nature, have caused the injuries sustained by the child.
[57] It must be noted that this is not a case where it has been shown that there were injuries resulting from hyper-flexion and hyperextension of the cervical spine. There was no detection of a cervical spine injury or injuries to the child's brain or eyes.
[58] The court does not know whether the metaphyseal fractures could have been caused by serious whiplash force (or flailing) without any corresponding detectable injury to the cervical spine, brain or eyes. There is, however, specific evidence indicating that the rib fractures are consistent with the child being held up forcibly and squeezed. There is also evidence that the leg fractures could have been caused by an intense wrenching or twisting such as an adult grabbing a leg or arm and twisting it forcefully.
[59] In considering the whole of the evidence, the court has paid close attention to the following features:
The child's injuries occurred within a very tight time frame. All injuries were inflicted within 29 days of the child's birth;
There is no evidence of a third party having a sufficient opportunity to have maliciously and without reason inflicted the injuries to the child;
The child did not fracture his own bones. Absent a serious accident, it is logical that the only source of force would be from a person close to the child and in particular an adult;
The reaction of each parent upon being told of the injuries by Dr. Goodale and Dr. Murray. Not much weight can be placed on the difference between the reactions of the parents but Ms. L.N. did come across as the more concerned parent;
The medical evidence indicating that it would be extremely unlikely for the child to have sustained his injuries as a result of a fall downstairs dilutes any significance of the story advanced by the father as an attempted explanation for some of the child's injuries;
The incriminating comments as above mentioned made by Mr. D.M. to police are very telling;
The absence of any credible evidence indicating the mother to be a suspect;
Mr. D.M.' reaction when he and Ms. L.N. were told by Dr. Murray that the child had multiple fractures. According to Ms. L.N., Mr. D.M. started crying and said something along the lines "I didn't mean to, it was an accident (or words to that effect)";
The timing of Mr. D.M.' disclosure that he fell down the stairs with the child. This was only referred to after child's injuries were discovered.
[60] The evidence is sufficient to cause the court to go beyond merely thinking that Mr. D.M. is guilty because Ms. L.N. is not. It is a case which goes beyond the simple conclusion that he must be the one who caused the injury. In the court's view, the only rational inference based on the whole of the evidence is that Mr. D.M. is the one who caused the injuries.
[61] Regrettably, the child incurred an unexplained bruise in the area of his mid right arm on December 12, 2009. The cause of that injury remains unknown and both the parents did have access to the child. Likewise, the cause of the more serious injury which occurred on May 8, 2010, remains a mystery. Each parent had a visit that day lasting about two hours. The visits were closely monitored. It appears that at some point during that day, the child sustained a fracture tibia. The timing and the cause of the injury remains unknown. The court places no reliance on what Ms. L.N.'s son K.M. may have said to his paternal grandparents on August 18, 2011. The Crown felt compelled to disclose what was heard. There is a complete absence of anything which could even in the slightest way make this information reliable.
[62] Infliction of the injuries sustained by the child required a significant degree of force. In the circumstances of this case, it simply cannot be said that Mr. D.M. did not appreciate the risks of what he was doing to the child.
[63] The mens rea for the offence of aggravated assault as expressed in the decision of R. v. Godin, [1994] 2 SCR 484, decided by the Supreme Court of Canada is objective foresight of bodily harm which does not require proof of an intent to maim. In the court's view, given the child's very tender age, a reasonable person in the circumstances of Mr. D.M. would surely have foreseen the risk of the child being injured and/or maimed.
[64] The word "maim" is not defined in the Criminal Code. In Black's Law Dictionary, the word "maim" is described as "a type of injury required for the commission of mayhem; especially serious injury to part of a person's body that is necessary for fighting." The Canadian Oxford Dictionary refers to the words "cripple", "disable", "mutilate", "harm", "impair" or "render powerless" in defining the word "maim".
[65] A charge of aggravated assault contrary to section 268(1) that is limited by particularization to the mode "by endangering life", does not include the offence of assault causing bodily harm contrary to section 267. The only available included offence is simple assault. Assault causing bodily harm and simple assault are otherwise both included offences of aggravated assault contrary to section 268. This is because the bodily harm is necessarily included in three of the four ways an aggravated assault can be committed namely, wounding, maiming or disfiguring.
[66] There is little distinction between the mens rea required for a charge of assault causing bodily harm contrary to section 267 or unlawfully causing bodily harm contrary to section 269 of the Criminal Code. The decision of R. v. DeSousa, [1992] 2 SCR 944, decided by the Supreme Court of Canada refers to an accused charged with the offence of unlawfully causing bodily harm. The Court held that a prosecution under section 269 must at least contain a fault requirement based on an objective standard. There is no requirement that an accused's intention extend to the consequences of his or her unlawful act. In other words, it is not required that a specific type of harm occasioned be objectively foreseeable. Likewise and with reference to assault causing bodily harm, objective forseeability of the risk of bodily harm, in general, is all that is required.
[67] It is clear in the circumstances of this case that the extent of force used by Mr. D.M. upon the child constituted an assault or assaults and that the assault (or assaults) caused serious injuries to the child. It is clear that the offence of assault causing bodily harm is included in the offence of aggravated assault. It is also clear that for the purposes of this case, the Crown has proven all constituent elements of the offence of assault causing bodily harm beyond a reasonable doubt.
[68] In conclusion, the offence best supported by the evidence is the included offence of assault causing bodily harm. In arriving at this conclusion, the court has taken into account the closely knitted mental elements required to establish liability for the offences of aggravated assault, assault causing bodily harm and unlawfully causing bodily harm.
[69] In the final analysis and based on the facts of this case, Mr. D.M. shall be found guilty of the included offence of assault causing bodily harm.
Released: February 28, 2012
Signed: "Justice Randall W. Lalande"