Court Information

Ontario Court of Justice

Date: 2016-03-23

Court File No.: 13-1328

Parties

Between:

Her Majesty the Queen

— AND —

Darryl O'Mahony

Judicial Officer and Counsel

Before: Justice C.M. Harpur

Heard on: June 11, October 9, October 21, December 23, 2015 and January 26, 2016

Reasons for Judgment released on: March 23, 2016

Counsel:

• S. McCartan, for the Crown
• D. Lakie, for the defendant

Reasons for Judgment

HARPUR J.:

Overview

[1] Mr. O'Mahony is charged with assaulting his daughter Lily O'Mahony (born August 25, 2012) on March 9, 2013 causing her bodily harm and, by reason of that offence, of breaching the keep the peace and be of good behaviour term in his probation order dated April 18, 2012.

[2] Mr. O'Mahony's trial proceeded on June 11, October 9, October 21, December 23, 2015 and January 26, 2016.

[3] The Crown called the pediatrician who attended Lily at Royal Victoria Hospital in the evening of March 9, 2013, Dr. Chee Chen, the fifteen year old downstairs neighbour of Mr. O'Mahony, Bentley Pride-Sclater ("Bentley"), Lily's mother and Mr. O'Mahony's domestic partner, Amber Johnston, and Ms. Johnston's grandmother, Marjorie Sheppard. Mr. O'Mahony testified in his defence.

[4] This proceeding included a voir dire concerning the admissibility of one aspect of Bentley's proposed trial testimony, a remark which he said was made to him by Lily's older brother Jackson (born July 14, 2010 and, thus, two years and eight months old on March 9, 2013) following Lily's departure for the hospital: "I saw mommy drop her on her head".

[5] The Crown's case is circumstantial. No witness testified to having observed Mr. O'Mahony assaulting his daughter. However, it is common ground that Lily bore no injuries when put in her crib in the early evening of March 9, 2013 but was badly bruised on her face and upper body, particularly the left side of her face, when she arrived at Royal Victoria Hospital at approximately 8:50 p.m. on March 9. No issue is raised that, somehow, Lily sustained injuries amounting to bodily harm that evening. Certainly, the medical evidence and disturbing photographs which were made exhibits support the Crown's allegation that Lily's injuries interfered with her health and comfort and were more than transient or trifling.

[6] The Crown relies upon the evidence of Ms. Johnston that she placed Lily in her crib and left her uninjured in the early evening, that she remained in the second floor apartment residence with Lily, Jackson and Mr. O'Mahony for a period of time without incident, that she proceeded to a ground level outdoor patio of the residence and smoked in company with Bentley, Bentley's father and Mr. O'Mahony, that she observed Mr. O'Mahony return to the apartment by himself, that she remained on the patio for several minutes, that she heard Lily crying, and that she herself then proceeded upstairs to the apartment, entered Lily's bedroom and observed Lily badly injured. Ms. McCartan for the Crown submits that Ms. Johnston is to be believed when she denies having caused any of the injuries to Lily and submits that Mr. O'Mahony is the only other person to have had the opportunity to commit this offence.

[7] Mr. Lakie for Mr. O'Mahony submits that, on a W.D. analysis, Mr. O'Mahony's testimony denying having assaulted Lily should be accepted or should at least raise a doubt or, if neither of these, nonetheless that the evidence of the Crown does not prove that Mr. O'Mahony caused Lily's injuries.

[8] For the following reasons, I am left in doubt as to the cause of Lily's injuries and Mr. O'Mahony is entitled to an acquittal on both charges.

The Evidence and Analysis

[9] This is a case where neither the primary Crown witness, Ms. Johnston, nor the defendant emerged unscathed from the witness stand. Although the demeanour of both seemed to me to be sincere and neither was evasive, nonetheless, weaknesses appeared. Several of these have been highlighted by Mr. Lakie and by Ms. McCartan.

a. Ms. Johnston's Evidence

[10] I turn first to Ms. Johnston's evidence. Its frailties took three forms: (i) contradictions with the evidence of Bentley, whom both the defence and the Crown accept as credible: (ii) contradictions with the statement which Ms. Johnston gave to the police the night of the incident; and (iii) an inherent improbability in one of Ms. Johnston's details about the evening of March 9, 2013.

[11] The contradictions with Bentley's evidence were the following:

(i) Ms. Johnston testified that she was not frustrated during the evening of March 9. Bentley testified, however, that Ms. Johnston did seem frustrated and that her facial features suggested that she was "mad" when she, Bentley and Mr. O'Mahony were together on the house patio smoking cigarettes that evening;

(ii) Ms. Johnston denied having said words that evening to the effect that she was going to "blow a gasket" if Lily were not quiet. Bentley said that Ms. Johnston had indeed said this;

(iii) Ms. Johnston testified that it was she who fetched Bentley's father to take her and Lily to the hospital. Bentley said that it was he who summoned his father;

(iv) Ms. Johnston testified that the smokers on the patio preceding Mr. O'Mahony's exit to the apartment washroom were herself, Mr. O'Mahony, Bentley and Bentley's father. Bentley testified that his father was not present at this session;

(v) Ms. Johnston testified that, following the cigarette on the patio and Mr. O'Mahony's departure for the washroom, she and Bentley together went up to her apartment. Bentley's chronology was to the effect that, he and Mr. O'Mahony had gone together to the apartment leaving Ms. Johnston on the patio, that he subsequently went downstairs to encourage Ms. Johnston to come up, and that several minutes later she did so by herself and went to Lily's room; and

(vi) Ms. Johnston's evidence was that, having discovered Lily's injuries, she rushed Lily to Royal Victoria Hospital without delay. Bentley testified that, between the time Ms. Johnston appeared to discover Lily's injuries and the time he, Lily and his father departed for the hospital, Ms. Johnston finished the alcoholic drink which she had been consuming.

[12] The contradiction between Ms. Johnston's trial evidence and her statement to the police was relatively minor. She testified that she had consumed two alcoholic drinks during the evening whereas she told the police in her statement to them that she had consumed only one drink. In addition, Ms. Johnston testified that one drink would not affect her ability to think or to remember but her statement to the police suggested the contrary:

"I remember looking at the hallway and I never see him [Mr. O'Mahony] go into that room once I put her down but at the same time like, I don't know – you know what I mean, I had that one drink and maybe I did forget something and um, I don't even know. Well, all it takes is one drink, you know what I mean".

[13] As to the inherent improbability in Ms. Johnston's narrative at trial, she testified that, when she attended Lily's bedroom and discovered Lily's injuries, daylight had not ended. She had said this to the police as well. The evidence of Dr. Chen, which was based on the Royal Victoria Hospital records, indicated that Lily arrived at that hospital at approximately 8:50 p.m. Ms. Johnston estimated at five minutes the gap between her observation of Lily's injuries at home and her attendance at the hospital. I accept Mr. Lakie's point that it would have been dark outside for some considerable time by 8:45 p.m. on March 9, 2013.

[14] I also accept Mr. Lakie's submission that, although these weaknesses certainly do not disprove Ms. Johnston's denial of causing Lily's injuries, they detract somewhat from her reliability.

b. Mr. O'Mahony's Evidence

[15] Ms. McCartan rightly observes that Mr. O'Mahony's testimony also discouraged reliability in at least two respects: an internal contradiction and contradictions with Bentley's evidence.

[16] The internal inconsistency was on a peripheral matter. Mr. O'Mahony testified in chief that it was Ms. Johnston who poured the first alcoholic drinks for herself and for him in the evening of March 9 but in cross-examination said it was he who poured the first drinks.

[17] As to the contradictions with Bentley's evidence, Mr. O'Mahony described the sequence of events immediately preceding Ms. Johnston's alarm about Lily's injuries as his leaving Bentley and Ms. Johnston downstairs on the house patio to go to the bathroom in his apartment, his doing so, his occupying the bathroom for approximately two minutes, and his emerging from the bathroom and seeing Ms. Johnston coming out of Lily's room. Bentley, on the other hand, said that he and Mr. O'Mahony had returned together to the O'Mahony/Johnston apartment, that he, Bentley, went to the living room to watch television while Mr. O'Mahony went into Jackson's room and played with him, and that Ms. Johnston subsequently came up to the apartment from the patio, went into Lily's room and began to scream.

[18] Mr. O'Mahony's evidence was also contrary to Bentley's on the matter of Lily's crying. Mr. O'Mahony said Lily cried throughout the evening, including the period prior to his smoking on the patio and when he went up to the washroom. Bentley said he heard no crying from Lily when he and Mr. O'Mahony came up from the patio or from that point until Ms. Johnston came up and entered Lily's room.

c. Bentley's Additional Evidence

[19] Bentley also provided some evidence which supported Mr. O'Mahony's denial of harming his daughter. Bentley said that he was with Mr. O'Mahony on the patio until the time he went to summon his father, apart from his brief trip to the patio to speak to Ms. Johnston. He said that Mr. O'Mahony did not enter Lily's room during the time Bentley was with him. He said that Mr. O'Mahony was calm on the patio, that he, Mr. O'Mahony and Jackson sat on the O'Mahony/Johnston couch as Jackson played, that there was no crying from Lily's room as they did so, that on his return to the couch from the patio and his request that Ms. Johnston come up and join them he heard Mr. O'Mahony and Jackson laughing and playing in Jackson's room, and that Ms. Johnston then arrived, entered Lily's room and began to scream.

[20] If Bentley's evidence on these points is accepted, Mr. O'Mahony's only opportunity to be alone with Lily from Bentley's return home at approximately 7:00 p.m. until Ms. Johnston's alarm was the three or four minutes that Bentley was down on the patio asking Ms. Johnston to come up. Yet when Bentley did come back up, Mr. O'Mahony was laughing and playing with Jackson in Jackson's room. Mr. O'Mahony and Jackson's high spirits are inconsistent with Mr. O'Mahony having been violent with Lily in her bedroom moments previously. So too is Lily's failure to cry, according to Bentley, until Ms. Johnston returned and entered Lily's bedroom.

d. The Voir Dire

[21] Potentially the most significant feature of Bentley's evidence is his testimony regarding Jackson's remark about Ms. Johnston dropping Lily. In chief, Bentley described this declaration by Jackson initially as "I only saw mom drop her on her head", in response to Bentley's own inquiry whether Jackson had seen what happened. He then said that Jackson's words were "mommy dropped her on her head". To the police, Bentley had said that Jackson's remark was "Mom dropped her on her his [sic] head".

[22] Mr. O'Mahony seeks to have Bentley's evidence admitted as a principled exception to the hearsay rule. The Crown contends that the proposed evidence has not been shown on a balance of probabilities to be reliable (necessity is conceded given Jackson's age of four at the time of trial).

[23] There is no disagreement between Ms. McCartan and Mr. Lakie as to the law concerning reliability: to be received, the statement must, in the words of Lamer, C.J. in R. v. Smith, [1992] 2 S.C.R. 915 "…[be] made in circumstances which substantially negate the possibility that the declarant was untruthful or mistaken…". In assessing the issue of substantive or threshold reliability of a child's hearsay statement, relevant factors include the timing of the statement, the child's demeanor, personality, intelligence and understanding, and the absence of any reason to expect fabrication: R. v. Khan, [1990] 2 S.C.R. 531.

[24] Here, according to Bentley, he, Jackson and Mr. O'Mahony were seated on the couch in the O'Mahony/Johnston apartment when Ms. Johnston emerged from Lily's room yelling "what happened to Lily". He said that Ms. Johnston proceeded to accuse Mr. O'Mahony of causing Lily's injuries and that Mr. O'Mahony responded that he had not been in Lily's room. He said that Ms. Johnston spoke of calling 911 and that Mr. O'Mahony said a 911 call was not necessary. He said that he then left Mr. O'Mahony and Ms. Johnston in their apartment momentarily to summon his father, that he returned with his father and remained in Mr. O'Mahony's and Ms. Johnston's presence until Ms. Johnston and his father left for the hospital, that he went with Mr. O'Mahony and Jackson and sat with them in their apartment for approximately twenty minutes, and that he then went to his own apartment with Jackson for approximately forty-five minutes to watch a movie and eat potato chips. Bentley said it was during the forty-five minute interval in Bentley's apartment that Jackson made his remark.

[25] Bentley said Jackson's mood seemed happy and unaffected by the incident as they watched the movie in Bentley's apartment but that he seemed serious and upset when he made the remark and unhappy immediately after making it.

[26] Bentley said Jackson's and his only other reference to the incident that evening was an exchange immediately following Ms. Johnston's alarm when the two were still sitting on the couch in the O'Mahony/Johnston apartment. He said Jackson bent toward him and said "what just happened" and that he responded that he didn't know but that "things will get better".

[27] The circumstances described by Bentley contain several features favouring the reliability of Jackson's remark or, more accurately, a dearth of features derogating from it. There is no suggestion of any discord between Jackson and Ms. Johnston that evening which might give rise to an animus on Jackson's part. On Bentley's version of events, he was only apart from Mr. O'Mahony between the time of Ms. Johnston's alarm about Lily's injuries and Jackson's remark for moments while getting his father and, during most of those moments, Mr. O'Mahony was with Ms. Johnston as well as Jackson; that is, Mr. O'Mahony's opportunity to tell Jackson what to tell others about the incident was very limited. Jackson was not led to implicate his mother by any of Bentley's questions. Although Bentley acknowledged to Ms. McCartan in cross-examination that Jackson did not specify the point in time when he saw Ms. Johnston drop Lily, the remark is made in response to Bentley's question "did you see anything" which, in turn, closely follows the incident in the O'Mahony/Johnston apartment. It can reasonably be inferred that Jackson was referring to the incident. Thus, referencing the Khan principles noted above, there exists contemporaneity of the remark and the event described, clarity in the expression of the remark, seeming responsiveness by Jackson to Bentley's question and no apparent motive to fabricate.

[28] I regard threshold credibility as proven. The remark is admitted. Although certainly not conclusive proof, it does oppose Ms. Johnston's denial of involvement in Lily's injuries.

e. Post-offence Conduct

[29] Ms. McCartan submits that two features of the evidence concerning Mr. O'Mahony's conduct subsequent to the discovery of Lily's injuries are indicative of his guilt. First, both Ms. Johnston and Bentley said that Mr. O'Mahony discouraged Ms. Johnston from calling 911 and would not provide her with his phone to do so. Second, Mr. O'Mahony did not himself attend at the hospital with Ms. Johnston and Lily although both Bentley and Mr. O'Mahony's mother appear to have been available to babysit Jackson.

[30] I agree with Ms. McCartan that these actions constitute conduct which is puzzling, as to me are Mr. O'Mahony's not insisting that he see the extent of Lily's injuries before she left for the hospital and the absence of any apparent effort on Mr. O'Mahony's part to communicate with Ms. Johnston or his mother while they were at the hospital with Lily. However, I do not regard the conduct as more consistent with guilt than with possible innocent explanations. Mr. O'Mahony's and Ms. Johnston's evidence was that he tended toward limited response to Lily's upset when she was put to bed. His reluctance to involve emergency personnel may have been part of this minimizing tendency - and his view that Lily could otherwise rapidly be taken to the hospital proved right. I do not reject Mr. O'Mahony's testimony that he did not offer Ms. Johnston his phone because he could not find it. As to the alternative babysitters, Mr. O'Mahony's mother was some distance from the apartment and awaiting her arrival would have delayed the departure for the hospital with Lily. There is no evidence that Bentley had previously acted as a babysitter for Jackson and he may not have been regarded by Mr. O'Mahony as qualified to do so. Ms. Johnston was highly protective of Lily in relation to Mr. O'Mahony prior to leaving for the hospital and it is conceivable that her actions deterred Mr. O'Mahony from inspecting his daughter's injuries. Finally, Mr. O'Mahony may, as he said, have fallen asleep following Lily's departure and thus neither called Ms. Johnston or his mother to inquire about Lily nor become aware of incoming calls. Thus, while Ms. O'Mahony's behaviour raises some questions about his reaction to Lily's situation, it has little weight as inculpatory post-offence conduct.

Conclusion

[31] Like Ms. Johnston, Mr. O'Mahony denied that he injured Lily. The Crown's circumstantial case to the contrary has not shown his denial to be false beyond reasonable doubt.

[32] As previously indicated, the prospect of Ms. Johnston having injured Lily has not been eliminated as a possibility.

[33] There also remains the possibility, albeit very remote, that Lily injured herself. Exhibit 6 is a very solid 8" x 10" x 2", hard plastic toy which, according to Ms. Johnston's evidence, was hung on the inside of Lily's crib the evening of Lily's injuries. According to Mr. O'Mahony, that toy was lying on Lily's crib mattress when he entered her room after she had been taken to the hospital. There are good reasons to doubt that this toy could have caused Lily's injuries: Ms. Johnston testified that it hung in the crib at a height above any that Lily had thus far reached in her efforts to stand; accepting Mr. O'Mahony's evidence about the toy's location, the photographic evidence shows far more bruising than experience would suggest is possible from the force of a baby's fall. Nonetheless, Dr. Chen's opinion evidence was that Lily's bruising was likely caused by blunt force trauma, not that her injuries were caused by the application of force of another person. While most unlikely, I cannot rule out the possibility that Lily's injuries were caused by her own movements in her crib.

[34] For these reasons, the charges against Mr. O'Mahony are dismissed.

Released: March 23, 2016

Justice C.M. Harpur, O.C.J.