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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

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 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 Order restricting publication — victims and witnesses.— (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants.— On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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

Court Information

Ontario Court of Justice

Date: May 12, 2016

Court File No.: Stratford 3211-998-15-1005-00

Between:

Her Majesty the Queen

— and —

Christopher Kenneth Skinner

Before: Justice K.L. McKerlie

Heard on: March 1, 2, 8 and 16, 2016 and April 12 and 14, 2016

Reasons for Judgment released on: May 12, 2016

Counsel:

• Neil Dietrich and Elizabeth Wilson, counsel for the Crown
• Kirsten Van Drunen, counsel for the accused Christopher Kenneth Skinner

Reasons for Judgment

Charge

[1] Christopher Kenneth Skinner stands charged that on September 12, 1994, he did commit second degree murder on the person of T.S., contrary to s. 235(1) of the Criminal Code.

Overview

[2] T.S. was born on […], 1993. She was 17 months old when she died on September 12, 1994. The cause of her death was "acute craniocerebral trauma".

[3] At the time of her death, T.S. resided with her mother, D.S., in an apartment with one bedroom, which contained a bed and the child's crib.

[4] D.S. was in a dating relationship with the accused, Christopher Kenneth Skinner, who lived in another town, but stayed overnight at the apartment from time to time.

[5] On September 12, 1994, a taxi dropped off Mr. Skinner at the apartment at 1:00 am. Emergency room records show that T.S. was taken to the hospital by taxi at 1:35 am. Attempts were made to resuscitate the child, but they were unsuccessful and she was pronounced dead at 1:50 am.

Timeline and Injuries

[6] The death investigation included an autopsy performed by Dr. Vetters, an autopsy review performed by Dr. Rao in March 1995 and a further review twenty years later in March 2015 by Dr. Pollanen, Chief Forensic Pathologist for the Province of Ontario.

[7] As summarized in Dr. Pollanen's March 25, 2015 report (Exhibit 12), the re-investigation into T.S.'s death was, in part, to re-examine the timeline. In the initial death investigation, an opinion was provided that the injuries could not have occurred after 0100 hours on the date of death, being the time Mr. Skinner arrived at the apartment.

[8] Based on his 2015 review, Dr. Pollanen opined that the fatal injury could have occurred after 0100 hours for two main reasons:

1. The temporal gaps between injury and death and death and hospital presentation were both brief. In addition, none of the experts during the original death investigation recognized the medicolegal significance of the cardiac electrical activity present during resuscitation.

2. No safe medicolegal conclusion on time of death can be made using the [body] temperature measured in the Emergency Room.

[9] In his report, Dr. Pollanen concluded:

Overall, the main weight to be placed on my 'new' analysis of timing is that all the medical evidence converges on the conclusion that the fatal injuries could have occurred after 0100 hours. There are no facts that negate that conclusion.

[10] Dr. Pollanen summarized the injuries, how the injuries occurred and the cause of death as follows:

There are multiple injuries related to blunt impact trauma to the torso and head. The injuries occurred by hitting the child or impacting the child against a firm and unyielding surface. These injuries caused death. The findings related to the injuries and the interpretation of these findings is straightforward and non-controversial, as indicated in Dr. Rao's report.

[11] Dr. Rao's report (Exhibit 10) states, in part, at pages 6 and 7:

The findings in the brain along with bruises of the scalp and face indicate that this child sustained acute fresh brain trauma. The findings of skull fracture along with haemorrhage within the posterior scalp represent blunt force injuries and could have been caused if the child's head was struck against a hard surface. … The bruises over the trunk and arms represent grab sites. …

The findings of laceration of the liver as well as bruising to the mesentery of the proximal small intestine and extensive bruising of the right lung represent blunt force injuries. These injuries represent compression-type injury or violent squeezing of the chest and abdomen. The abdominal injuries could also have resulted from direct blows to this region. … the location of the mesenteric bruising as well as pulmonary contusions appeared to be secondary to direct application of compressive force and/or direct blows to the region rather than due to resuscitative measures.

In my opinion, death in this 18 month old female child could be attributed to acute C.N.S. trauma which represents non-accidental injuries. The overall findings as such do not correlate with the history of falling.

[12] The injuries are particularized in the autopsy report by Dr. Vetters (Exhibit 9) and the autopsy review of Dr. Rao (Exhibit 10). They include:

1. To the scalp: a large area of recent bruising over the vertex extending over the occipital surface.

2. To the skull: complex fractures of the occipital region.

3. Lacerations of the liver, described as consistent with blunt trauma.

4. Pulmonary contusions, described as extensive areas of bruising of the right lung.

5. Mesenteric contusions, described as moderate bruising.

6. External bruising to the forehead, eyelids, ear, neck, scalp, upper arms, thorax and abdomen. Dr. Vetters noted that the features of the marks on the upper arms and thorax suggest pressure marks of fingers. Dr. Rao noted that the faint marks on the trunk could represent prior "hold sites" and that the features noted over the right arm were consistent with prior hold or grab sites.

[13] In addition, a "substantial clump of forcibly removed scalp hairs" was found on the floor beside the crib. The Centre of Forensic Sciences report (Exhibit 8) concluded that "substantial force was likely required for the removal of the quantity of hair present in the clump".

[14] Dr. Pollanen's conclusions respecting the time interval between injury and death and the time interval between death and presentation to hospital are as follows (Exhibit 12, page 2):

The time elapsed between injury and death was brief. The lack of significant internal bleeding in the abdominal and pleural cavities, despite injury to the thoracic contents, mesentery and liver injury, indicates that the injuries were rapidly fatal, in a short time period after the injuries were inflicted. …

The time elapsed between death and the presentation to hospital was brief. This is supported by two main observations. First, there was a lack of progression of post-mortem changes (e.g., the images of the child in the hospital show that postmortem hypostasis is early and no rigor mortis was reportedly present). Second, my review of hospital records shows that there was still electrical activity in the heart during resuscitation. It is unknown precisely how long cardiac electrical activity can persist during resuscitation, but it must be a narrow time gap.

Positions of Parties

[15] The Crown seeks committal on the charge of second degree murder. It is the crown's position that Mr. Skinner inflicted the fatal injuries on the child while her mother was in the shower and he was alone with the child in the bedroom.

[16] As reflected in the defence evidence adduced at this preliminary hearing and the submissions of defence counsel, at trial the defence will be advancing the theory that T.S. died of injuries inflicted prior to 0100 hrs. However, for the purpose of the preliminary inquiry, the defence made a number of concessions, which recognize the well-established principle that selecting between competing inferences is a task for the trier of fact and not within the purview of the preliminary inquiry judge. For the purpose of the preliminary inquiry, the defence concessions include the following:

1. The Crown has led sufficient evidence upon which a properly instructed jury could conclude that the child's death was caused by an unlawful assault;

2. One reasonable inference that could be drawn from the medical evidence is that the child died in the thirty-five minutes before hospital presentation at 0135 hours;

3. One reasonable inference that can be drawn from the evidence is that the accused unlawfully assaulted the child in the bedroom of her residence between 0100 and 0135 hours.

[17] The defence submits that despite weaknesses in the Crown's case and the availability of competing inferences that another party caused the death of T.S., the Crown has met its onus for committal on the charge of manslaughter, but not second degree murder.

[18] The defence submits that no reasonable inference can be drawn from the evidence that in committing an assault on T.S., the accused intended to cause her death, or intended to cause bodily harm that he knew was likely to cause her death.

Test for Committal

[19] In section 231 of the Criminal Code, murder is classified as first degree murder or second degree murder. Murder that is not first degree (planned and deliberate) is classified as second degree murder. Pursuant to section 234, culpable homicide that is not murder or infanticide is manslaughter.

[20] Section 229 (a) of the Criminal Code defines murder in these terms:

Culpable homicide is murder

(a) Where the person who causes the death of a human being

(i) means to cause her death, or

(ii) means to cause her bodily harm that he knows is likely to cause her death and is reckless whether death ensues or not;

[21] In this case, there is no direct evidence as to either the actus reus or the mens rea of second degree murder. The crown relies upon inferences to be drawn from circumstantial evidence in order to establish the essential elements of the offence.

[22] In the recent decision of R. v. Wilson, 2016 ONCA 235 (released March 31, 2016), the Ontario Court of Appeal succinctly summarized the role of the preliminary inquiry judge:

[21] The test for committal is well settled: is there any evidence on which a reasonable jury properly instructed could return a guilty verdict? A preliminary inquiry judge must commit the accused to stand trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080.

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221, at para. 4.

[23] At paragraph 30, the Court approved the following definition of "inference":

… David Watt in Watt's Manual of Criminal Evidence (Toronto: Carswell, 2014), at § 9.01, defines inferences:

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. [Emphasis in original.]

[24] In R. v. Cooper, [1993] S.C.J. No. 8, the Supreme Court of Canada analyzed the nature of the intent required to secure a conviction under s. 229 (a) (ii) of the Criminal Code. The following principles emerge from the majority decision:

1. The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in death of the victim.

2. The aspect of recklessness can be considered "an afterthought" since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death.

3. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.

4. Recklessness is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.

5. The same words can apply to s. 229(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.

6. The intent that must be demonstrated in order to convict under s. 229(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm; and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow.

[25] In the present case, the crown will be asking the jury to draw inferences from the totality of the evidence that not only was it Mr. Skinner who inflicted the injuries to the child, but also that in inflicting those injuries he intended to cause bodily harm that he knew was likely to cause her death and was reckless as to whether death ensued.

Analysis

[26] I accept the defence submission that there is no basis upon which to draw an inference there was animus or a precipitating event from which subjective intention could be inferred.

[27] In reaching that conclusion, I have specifically considered the Crown's submission that the combination of Mr. Skinner's interview with the police together with the subsequent recordings of his conversations with undercover officers who were inserted in the cell block provides context capable of supporting the necessary inference for subjective intent. I am mindful that any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the Crown's favour. However, in my view, the Crown's interpretation of the interview and the cell block conversation is nothing more than conjecture and speculation.

[28] I have considered the case law filed by both crown and defence, which counsel thoroughly reviewed in their submissions, including the following: R. v. Jha, 2015 ONSC 1640; R. v. S (H.B.), 2015 ONCJ 448; R. v. Streeter, 2013 ONSC 1952; R. v. Sunshine, [2010] BCSC 44; R. v. Redhead, 2010 MBPC 11; R. v. Mendieta, 2007 ONCA 621; and R. v. One One A a.k.a. Norah Amy Ruth.

[29] As emphasized by defence counsel, there are often specific factors from which the requisite intent for second degree murder can be inferred, including evidence of multiple blows, a prolonged assault, prior injury vs. a single violent incident, anger or frustration, animus, post offence conduct, or the accused's experience with young children and specific knowledge of risk of death.

[30] The defence submits that the only available basis to support an inference that Mr. Skinner had the requisite subjective intent for second degree murder is an application of the common-sense inference that a person intends the natural and probable consequences of his actions to the medical evidence respecting the child's injuries.

[31] I agree. The issue is whether the requisite subjective intent for second degree murder can be inferred from the nature and extent of the injuries inflicted on the child and the ruling out of accidental injury.

[32] The Crown relies upon a common sense inference that a person inflicting blunt force trauma to the head and torso of a 17 month child subjectively intended to cause bodily harm that he knew was likely to cause her death and was reckless as to whether death ensued.

[33] In R. v. Magno, [2006] O.J. No. 2590, the Ontario Court of Appeal concluded that the preliminary inquiry judge committed jurisdictional error by failing to consider the inference favourable to the Crown that the accused were reasonable persons who would have foreseen the likelihood of death. The Court agreed with the reviewing judge, who noted that having found that a reasonable person ought to have foreseen the likelihood of death, absent evidence that the accused were not reasonable persons, one permissible inference is that these appellants, as reasonable persons, intended the natural consequences of their actions and therefore had the requisite mens rea. At paragraphs 18 and 19, the Court of Appeal held:

[18] …The Crown is often required to prove a culpable state of mind as an element of an offence. … The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normal or reasonable person would have intended or foreseen is unhelpful or irrelevant. A person's state of mind may be determined by what a person says and does. It may be deduced also by considering what the natural consequences of someone's actions are and whether the person, by acting in the manner for which there would be natural consequences, foresaw that those natural consequences would occur. While there is no legal presumption that a person foresees or intends the natural consequences of his or her acts, it is a common sense proposition. …

[19] … The fact that a reasonable person would have foreseen the likelihood of death makes available the inference that the appellants, as reasonable persons, would have foreseen the likelihood of death. By failing to consider the possibility that this inference was available, the preliminary inquiry judge failed to consider the inference favourable to the Crown and considered only the inference that favoured the appellants.

[34] In the present case, there is likewise an absence of evidence that the accused was not a reasonable person. Accordingly, the common sense inference is available to the Crown that the accused intended the natural consequences of his actions.

[35] T.S. suffered multiple injuries related to blunt force trauma to her head and torso, including fractures of her skull, bruising of her scalp, lacerations of her liver and extensive bruising of her right lung. Dr. Pollanen testified that considerable force was required to inflict the head injuries. The force was significant enough to fracture the skull and transmit force into the brain disrupting its function. The injuries were not accidental.

[36] At the preliminary inquiry stage, "any reasonable interpretation or permissive inference from the evidence, beyond conjecture or speculation" is to be resolved in favour of the Crown.

[37] Given the considerable force required to inflict the head injuries and the extent of the injuries inflicted on both the head and torso of the 17 month old toddler, I am satisfied that on the evidence adduced at this preliminary inquiry a jury could reasonably and logically make the following inferences favourable to the Crown:

1. The injuries were not accidental;

2. The child suffered multiple injuries as a result of blunt force trauma to her head and torso;

3. Considerable force was required to inflict the injuries to the head;

4. Mr. Skinner unlawfully assaulted the child in the bedroom between 0100 and 0135 hours and meant to cause bodily harm to her;

5. Absent evidence that Mr. Skinner is not a reasonable person, one permissible common sense inference is that Mr. Skinner intended the natural consequences of his actions, foresaw that the bodily harm would likely result in the child's death and was reckless as to whether death ensued.

[38] In other words, it is reasonable to infer that the force applied to the child's head and torso was intended to cause bodily harm that Mr. Skinner knew was likely to cause her death and he was reckless whether death ensued.

[39] Accordingly, Mr. Skinner, you are committed to stand trial on the charge of second degree murder. You are remanded in custody and ordered to appear in person at the next court of competent jurisdiction in the Ontario Superior Court of Justice at 1 Huron Street, Stratford, for assignment court on Friday, May 20, 2016 at 10:00 am.

Released: May 12, 2016

Signed: Justice K.L. McKerlie