WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

P. Kotanen, J. Smith for the Crown

— And —

Huo Bin Shen

P. Rochman for the accused

Heard: March 24, April 9, June 8, June 18, 2015

FELDMAN J.:

Introduction

[1] Huo Bin Shen is charged with Second-Degree Murder. The "most medically reasonable explanation" for the death provided in the post-mortem examination is head injury. At this preliminary inquiry, it is alleged that while babysitting his girlfriend's infant child, the defendant caused its death most likely by shaking that resulted in a clinically severe and ultimately fatal brain injury.

[2] Ms. Rochman, for the accused, concedes there is some evidence upon which to commit Mr. Shen for trial on Manslaughter. She submits, however, that the medical evidence alone is insufficient to determine the degree of force used beyond an everyday occurrence or accident involving the care of an infant to permit an inference of subjective foresight necessary to establish the requisite intent for murder in Code s. 229 (a) (ii).

[3] Mr. Kotenan, for the prosecution, submits that there is medical evidence that indicates use of force within an unacceptable range from which a trier of fact could find that the accused intended to cause serious bodily harm he knew would likely result in the baby's death and that he was reckless whether it would ensue. In this regard, he relies on the inference that a person intends the natural consequences of his or her actions, in this case, acts of violence sufficient to cause death.

[4] The Crown says that, in addition, there is medical evidence from which a circumstantial inference can be drawn that the deceased was subject to a serious repetitive mechanical assault that caused such a severe insult to the brain that he could not be saved by medical intervention. He points out that in an admission to the police the defendant ruled out accidental death. He also says there is evidence of animus, as well as indication of post-offence conduct that taken together provide some inferential evidence of the subjective intent element of the offence.

The Evidence

[5] The deceased's mother, Juan Yuan Xu, gave birth to her son, Ye Lin Hung, on January 4, 2014. There were no health concerns.

[6] Ms. Xu met the accused, Jack Shen, on a Chinese social website, We-Chat. She and Mr. Shen began a relationship that month. She recalls that at times he expressed anger and indicated frustration when her son cried. She felt he didn't like the baby. Ms. Xu says that on a few occasions the defendant suggested she return Ye Lin to his biological father. In fact, she had considered sending the baby back to China to be cared for by her own family.

[7] Ms. Xu had to write two exams on June 7. She had contacted a babysitting service the previous day but was unable to make working arrangements. She asked the accused to babysit as he had done so previously. He agreed and stayed over the night before.

[8] Ms. Xu was aware that the defendant had never previously fed nor changed the baby, but felt he could manage as he had watched her perform those tasks. She did not expect him to change the baby's diaper. She told him to feed Ye Lin milk if he cried.

[9] Ms. Xu contacted the accused by We-Chat after the first exam. He told her the baby was fine and sleeping but that he had taken the wrong milk. She came home around 2 p.m. She saw that the defendant was carrying the baby, but was disturbed that her son's eyes were almost closed, his feet straight and he could not talk. Ye Lin was dressed oddly in a winter jacket. She was frightened and began to cry.

[10] Ms. Xu testified that the defendant told her the baby was like this after he took some milk. She asked him to take them to the hospital but Mr. Shen appeared reluctant and said he had to go to work. Ms. Xu rushed out with the baby. She said the defendant followed and then drove them to the hospital. She asked him to drive more quickly but he failed to do so.

[11] She also asked him, "why did you do that?", but he did not respond. The baby's eyes were almost closed and his breathing was very shallow.

[12] Mr. Shen dropped her and the baby off at the emergency section of the Scarborough General Hospital. He said he would come back later but failed to return.

[13] Mr. Shen called Ms. Xu in the evening of June 7. When she asked him why he did this, he said he had inadvertently hit the baby's head with his knee. He told her that his negligence in looking after the baby will cause him to spend a life in jail. He also asked her, "how could I hit a baby who was a few months old?" Ms. Xu was unable to reach the accused after this. He had shut off his phone. He changed his Facebook profile.

[14] In a statement to the police, Mr. Shen denied dropping the baby or hitting his head. He said that nothing of an accidental nature occurred.

[15] The baby was sent to Sick Childrens Hospital by ambulance. He died on June 9. He was five months old.

The Medical Evidence

[16] Dr. Sarah Schwartz is an expert in pediatric medicine. She is qualified to provide assessment and interpretation of injury in children. She testified that the brain injury was clinically very severe. She said the testing indicated significant bleeding between the brain and skull, including multiple subarachnoid hemorrhaging, as well as low oxygen delivery and lack of blood flow to the brain. Dr Schwartz told the court that these injuries required a significant degree of force greater than the normal handling of a child and for which on the information available there was no objective basis to infer the possibility of accident.

[17] Dr. Peter Dirks is a pediatric neurosurgeon. He reviewed the CT scans and MRI. He described the injury as an acute and severe insult to the brain that led to seizures. There was concentrated blood on the right side of the brain. The dural membrane closer to the skull was torn and blood was leaking onto the surface of the brain. The damage was likely caused by the forward and backward movement of the head. The swelling had caused so much damage that surgery would not have helped save the baby's life.

[18] Dr. Agnes Wong is Ophthalmologist-in-Chief at Sick Childrens Hospital, specializing in pediatric cases. From the medical records, she noted extensive bleeding in the back of the eyes, plus retinal retinoschisis, which indicates the splitting of the layers of the retina that creates a cavity in the retina. She was of the opinion that because of the extensive nature of the bleeding across multiple areas and in the cavity, there could be no other cause than as a result of a repetitive, mechanical injury, likely multiple motions involving acceleration and deceleration of the head.

Animus

[19] Ms. Xu told the court that the defendant expressed anger and frustration when her son cried. She felt he did not like the baby and wanted him returned to his father so that he would be out of their way. Mr. Shen told the police he was frustrated by the baby's crying on the day Ye Lin was fatally injured.

[20] Animus can provide context, as well as circumstantial evidence of intent. There is a risk its prejudicial effect can outweigh its probative value. In this case, evidence of animus is weak, but retains some relevance in that taken together with all the evidence it permits an inference that the accused acted in anger to inflict a severe head injury when frustrated by difficulty in caring for an infant he did not want in his life. This includes evidence that the defendant did nothing for some time to assist Ye Lin who was in distress after the assault.

Post-Offence Conduct

[21] Post-offence conduct evidence is circumstantial evidence which may be probative of guilt: R. v. Moffit, 2015 ONCA 412, at para. 41. It has limited relevance and may give rise to more than one inference. In some cases, it will support an inference about the level of the accused's culpability: R. v. Sala, 2015 ONCA 23, at paras. 227-229. It has relevance where the conduct alleged is out of proportion to the culpability admitted. It is of course for the trier of fact to decide on the basis of the evidence as a whole the weight to be applied to this evidence: R. v. White, [1998] S.C.J. No. 57 (S.C.C.), at paras. 19, 27.

[22] Mr. Kotanen points to what he submits are collectively powerful pieces of post-conduct evidence that he says are indicative of the defendant's knowledge of the degree of harm he inflicted and that circumstantially support the inference of a level of culpability greater than manslaughter.

[23] He says the fact that the defendant sat with an infant gravely injured by his own hand for an extended period, failed to call 911, text the mother or seek medical help enhanced the likelihood that the baby would get worse and permits the inference he was willing to let Ye Lin die. There are of course other inferences, including the possibility that following the assault Mr. Shen succumbed to panic and indecision.

[24] When Ms. Xu returned the defendant misled her about the cause of the baby's condition. He resisted going to the hospital and merely dropped mother and infant off rather than assist Ms. Xu and hospital staff with information. He lied about going to work. He turned off his phone and changed his Facebook page. Later, when speaking to the police, he was disingenuous about what had happened.

[25] The value of this evidence is limited. It permits competing inferences supportive of manslaughter. However, when taken together with all the evidence, it has some potential relevance in permitting, as a matter of "human experience and common sense" an inference of the level of culpability.

Committal for Trial

[26] The court will commit for trial where there is sufficient evidence upon which a reasonable jury properly instructed could return a verdict of guilty: United States v. Sheppard, [1977] 2 S.C.R. 1067 at 1080. It is not the function of the preliminary inquiry judge, but rather of the trier of fact, to weigh the evidence and draw inferences of fact from the evidence adduced: R. v. Monteleone, [1987] 2 S.C.R. 154, at para 8.

[27] However, when assessing whether sufficient evidence exists to commit a person for trial, the judge must bear in mind the persuasive burden of "beyond a reasonable doubt": see R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para 50 where the Supreme Court cited with approval the dissenting passage of McLachlin J. (as she then was) in R. v. Charemski, [1998] 1 S.C.R. 679, as follows: "…'sufficient evidence' must mean sufficient evidence to sustain a verdict of guilty beyond a reasonable doubt; merely to refer to 'sufficient evidence' is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case."

[28] In circumstantial cases, a preliminary inquiry judge may be required to engage in a "limited weighing" of the evidence to determine whether, if the Crown's evidence were believed, it would be reasonable for a properly instructed jury to infer guilt. Where competing inferences are available from the evidence, those most favourable to the Crown must be drawn: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at p. 839.

[29] In the 'limited weighing' process, I am mindful of the distinction between the drawing of inferences and conjecture or speculation. Factual inferences are ones that can be reasonably and logically be drawn from a fact or group of facts: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at 209.

Committal – Murder vs. Manslaughter

[30] In R. v. Mendieta, 2007 ONCA 621, a mother caused the death of her 34-month old daughter as a result of inflicting a severe head injury. Multiple bruises on the infant's body and retinal hemorrhages were also noted. None of the doctors was able to establish the exact mechanism of the fatal injury. Medical evidence indicated that the amount of force necessary to cause the deceased's brain injury was excessive and very significant.

[31] Although committed for trial, a reviewing judge concluded that the degree of force did not go far enough to support an inference that the accused had the requisite intent for murder.

[32] The Court of Appeal restored the committal on second-degree murder. The court held that while the medical evidence indicated that the force used "would not necessarily be recognized as lethal, it did not exclude that prospect". It would be for the jury to determine whether the accused used force intending to inflict bodily harm that she knew was likely to cause death and was reckless whether death ensued.

[33] In this regard, in relation to establishing the subjective intent for murder, it is a common sense inference that a person intends the natural consequences of his or her acts: R. v. Magno, unreported, June 28, 2006, Ont. C.A.

[34] In R. v. Jha, 2015 ONSC 1640, the three-year old deceased sustained a massive brain injury as a result of a blunt force trauma to her skull. There were earlier skull fractures and multiple other injuries. The accused was charged with second-degree murder.

[35] A pathologist described the level of force required for the skull fractures to be significant, with the most recent head injury, caused by perhaps as few as one or two blows, being both severe and inevitably fatal. She agreed that any of the blunt force injuries could have been caused by a fall or an accidental impact.

[36] At trial, a motion for directed verdict was denied. Baltman J. held that at this stage the Crown need only point to evidence capable of supporting guilt. Here, medical evidence established that the fatal injuries resulted from the application of significant force and there was no indication of accident.

[37] Justice Baltman recognized that one inference available from the evidence was that the accused did not intend to kill her daughter. But she held it was open to the jury to circumstantially infer it was reasonable to conclude that "anyone who strikes their child in the head hard enough to cause these kind of injuries not only meant to harm her, but also knew that her actions were likely to cause death" as a natural consequence of her actions.

Application to this Case

[38] The defence concession, as well as the evidence, supports committal on Manslaughter. It is open to a jury to find that the degree of force used here, although within an unacceptable range, was unclear to the degree that it could not be satisfied to the requisite standard that the defendant had the subjective foresight that the baby was likely to die or was reckless in that regard. It is, as well, open to be inferred that evidence of animus was borderline and that the post-offence conduct was consistent with panic.

[39] However, it is in my view open to a jury, as well, to infer on the medical evidence alone, and the ruling out of accident, that the defendant had the subjective foresight to understand the likelihood of death and had the requisite subjective intent, or at least recklessness in that regard, when he inflicted a serious repetitive mechanical assault, likely multiple motions involving acceleration and deceleration of the baby's head, that caused such a severe insult to the brain that Ye Lin could not be saved by medical intervention. In this regard, as noted earlier, the mens rea element can be inferred in part on the basis of the notion that a person intends the natural consequences of his or her actions.

[40] The subjective intent inference is enhanced here by some evidence of animus that gives context to the allegations of significant and wilful violence and by post-offence conduct that permits the inference the defendant was aware that the bodily harm he inflicted carried a risk of death and was at least reckless that it would ensue.

[41] Mr. Shen will be committed for trial on Second-Degree Murder.

Released: August 13, 2015

Signed: "Justice L. Feldman"