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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Joel Roberto & Ravyn Colley

Before: Justice Sandra Bacchus

Heard on: October 2, 5, 6, 7, 8, 9 and 13, 2015; December 3, 2015; February 12, and April 28, 2016

Ruling On Committal for Trial

Counsel:

• A. MacPherson / K. Bartoska — for the Crown
• L. O'Connor — for the Defendant (Roberto)
• S. Feldman / I. Aisen — for the Defendant (Colley)

Bacchus J.:

Introduction

[1] A four-year-old child died on or about October 13, 2014. The child's parents, the defendants, are charged with First Degree Murder in relation to the death.

[2] Both defendants contest committal on a count of First Degree Murder submitting that there is no evidence from which a reasonable inference arises of planning and deliberation and no evidence of the degree of causation necessary to establish the essential elements of this offense.

[3] Both defendants concede committal in relation to one count of Second Degree Murder.

[4] The defense on behalf of one defendant submits that evidence of Failure to Provide the Necessaries of Life arises from the evidence as a separate transaction and not an included offense to murder and that the court is mandated to commit the defendant(s) to stand trial on this additional count pursuant to section 548 of the Criminal Code.

Overview of the Evidence

The Scene

[5] On October 13, 2014, at approximately 2:09 am, one defendant called 911 asking for help. The defendant told the dispatcher that his 4 year old son had fallen down 8 or 9 stairs two days before and that he had a bruise on his face and a black eye. Further, he told the dispatcher that his son had been acting normal but in the last couple of hours was non responsive and not breathing. The defendant then purported to, as requested by the dispatcher, alert the dispatcher every time that he saw his son's chest rise and fall with breath.

[6] Firefighters were the first responders to arrive at the home at approximately 2:15 am. The front door was locked and they had to knock three times before the door was opened.

[7] Once they entered they found the child lying on his back wrapped in a blanket on the floor in the middle of the living room. CPR and other attempts to resuscitate the child were initiated. Paramedics arrived at approximately 2:23 am and took over CPR. The firefighters and the paramedics were unable to open the child's mouth to insert an airway.

[8] A decision was made at approximately 2:30 am to transport the child to the Advanced Life Support Services ambulance which had arrived on scene. Firefighter Don Platt testified that as they were leaving the home to take the child to the ambulance a woman, subsequently identified as one defendant, came downstairs and was yelling: "What are you doing? Where are you taking him?" Mr. Platt testified that the other defendant tried to stop her saying he had to deal with the child and take him to the hospital.

[9] The attending emergency personnel testified to making the following observations of the child's physical condition: that the child had no pulse, was vital signs absent and had no shock-able heart rhythm; that the child's mouth appeared to be "rigored" shut; that the child was very cold to the touch; that when the child was placed on his side there were signs of lividity on his back.

[10] Marvin Marin-Austin one of the advance life support paramedics testified that he observed bruises all over the right side of the child's face and scrapes around his neck, as well as his upper lip and upper chin, and bruises to his lower and upper legs.

[11] Firefighter Don Platt testified that the child seemed thin, had skinny arms and appeared possibly malnourished.

[12] The child was pronounced dead at 2:38 am, while he was in the ambulance.

[13] Don Platt testified that when he walked back to the home a short time later to check on the welfare of the other child in the house, he found that the lights were out and the door locked. Mr. Platt testified that it took the female defendant a while to come to the door and open it. Mr. Platt testified that he observed that all the furniture that had been moved by medical personnel in the living room in order to attend to the child, had now been put back to its original place.

Defendants' Utterances and Other Evidence

[14] During the time the emergency personnel were attempting to assist the child, one defendant made a number of utterances to them regarding the child's condition before they arrived.

[15] Firefighter Richard Lee testified that the defendant stated the following: that the child had fallen down a day ago; that he had been with the child the whole day; that he had fed the child one hour earlier but the child threw up; and that he should have taken the child to the hospital.

[16] Paramedic Christopher Ganesh testified that he heard the defendant say that his son had fallen down the stairs yesterday and that the child became unconscious at 2:00 am but was fine up until that time. Mr. Ganesh testified that the defendant stated that he had fed the child at 1:00 am.

[17] In addition to photographs taken of the scene and of the child both at the scene and during the post mortem, the police seized cellphones belonging to both defendants. The police were unable to open one defendant's phone. However the police were able to retrieve a history of text messages between the defendants as well as one defendant and other parties from the other defendant's phone.

[18] Also located on one defendant's phone was a short video of the child taken apparently proximate to his death wherein the child appears seriously injured. There is evidence that both defendants are present and that one defendant is physically interacting with the child, holding his jaw area, while the other defendant holds the cell phone.

[19] Police also seized a laptop from the defendants' residence which contained a video dated October 30, 2013, of the child crying for 1 minute and 55 seconds without anyone interacting with him, as well as family photographs.

[20] The family's medical records were also obtained by the police.

Cause of Death

[21] Dr. Kristopher Cunningham, the forensic pathologist who conducted the post mortem examination of the child and was qualified in these proceedings to give opinion evidence in the area of forensic pathology, testified that the immediate cause of the child's death was asphyxia due to the aspiration of gastric contents; aspiration which would have led to hypoxemia and ultimately asphyxia.

[22] Partially digested food was located in the child's trachea and bronchi bilaterals and infiltrating the conducting airways in both of the child's lungs including all of his lung lobes which also showed contamination of gastric contents. According to Dr. Cunningham: "there was a lot of it".

[23] Dr. Cunningham was unable to estimate how many times the child may have vomited but did testify that if the child was in a supine position that the vomitus could travel back down into the airway. Dr. Cunningham observed white coloured nemesis (vomit) around the child's mouth and nostrils. There was also partially digested food found on the ulcer inside the child's left lower lip.

[24] Dr. Cunningham testified that both chronic malnutrition and blunt impact trauma to the head suffered by the child were contributing factors to his death as they were both processes which diminished the child's ability to respond to and withstand physical stress. However, Dr. Cunningham testified that the head trauma the child suffered contributed to the immediate cause of his death.

[25] Dr. Cunningham testified that the presence of significant neurological trauma to the child could have led to depressed functioning of his central nervous system and his inability to protect his airway. In addition head injuries such as the injury the child appears to have sustained can trigger vomiting.

[26] Dr. David Ramsay, the neuropathologist who examined the child's brain tissue concurred with the opinion that the child's head injury left him vulnerable to aspiration. Further, Dr. Ramsay testified that left untreated the head injury the child suffered could have been survivable, however it is also possible that the injury to the brain could have developed further had the child not died as a result of the aspiration.

[27] Dr. Ramsay testified that he saw no evidence of inflammatory reaction to the brain injury and that the presence of established staining suggested that the child would have survived for some time after the head injury that caused this damage likely an hour to two hours and less than six hours.

Time of Death

[28] It was Dr. Cunningham's opinion that the child likely died a few hours before the emergency responders interacted with him at the scene. In arriving at this opinion, Dr. Cunningham noted the presence of rigor mortis, livor mortis and that the child's body temperature was only 25 degrees Celsius when it was taken in the ambulance. Dr. Cunningham testified that this is a tympanic temperature inconsistent with life as a normal living body temperature is 37 degrees Celsius.

[29] Dr. Cunningham testified that the duration of the child's life following the inhalation of food depended on the volume of what was going down his airway and how widely it was distributed. Dr. Cunningham testified that the amount of food present in this case, that is in all of the different lung lobes, suggests that inhalation of the food occurred within a short amount of time prior to the death because the child would not have been able to breathe effectively for very long.

[30] It is Dr. Cunningham's opinion that the child would not have been breathing at 1:55 am, or 2:13 am or 2:23 am nor was the child likely alive one hour earlier as the defendant told the emergency responders.

Test for Committal

[31] The test for committal requires that where there is direct evidence adduced on all elements of an offense the case must go to trial even if a defense exists on the evidence. R. v. Sheppard (1977), 2 S.C.R. 1067

[32] In the instance of circumstantial evidence, the preliminary hearing judge may engage in a limited weighing of the evidence. This weighing of evidence does not apply to issues of credibility that remain the exclusive purview of a jury. If conflicts arise of a testamentary nature, they should be left to be resolved by the jury. R. v. Arcuri (2001) 2001 SCC 54, S.C.J. No. 52 (S.C.C.)

[33] In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. (R. v. Arcuri, supra, para. 30)

[34] It is well established that where reasonable inferences capable of supporting the crown's theory are available on the evidence, whether direct, circumstantial or a combination of both, the case must be left to the trier of fact to consider that evidence. It is not for this court to engage in assessing the quality and reliability of the evidence or any possible defense. The crown's case is to be taken at its highest at the preliminary inquiry stage. R. v. Charemski, (1998) 123 C.C.C. (3d) 255 S.C.C.; R. v. Sazant (2004) 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.).

Elements of First Degree Murder

Planning and Deliberation

[35] Under s. 222(1) of the Criminal Code, a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Further, a person commits culpable homicide when he or she causes the death of a human being by means of an unlawful act. S. 222(5)(a) Criminal Code

[36] As per section 231(2) of the Criminal Code: murder is first degree murder when it is planned and deliberate. A planned and deliberate killing is defined as:

…a calculated scheme or design which has been carefully thought out and for which the nature and consequences have been considered and weighed…implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

R. v. Widdifield (1963), 6 Crim L.Q. 152.

[37] Planning is to be given its traditional meaning: "…that does not mean, of course, to say, that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate. The important aspect is the time it takes to prepare a plan and not the time between developing the plan and doing the act." R v. Ali [2016] O.J. No. 1635

[38] To prove that a murder was planned and deliberate the prosecution may rely upon direct evidence, circumstantial evidence, or both.

[39] The planning and deliberation must proceed the conduct which causes the deceased's death but evidence of post offence conduct can be used to draw inferences as to the nature of the killing, and may supply proof of the planned and deliberate character of the murder depending on the circumstances of the case. R. v. Poitras (2002), 57 O.R. (3d) 538; R v. Fatima (2006), O.J. No. 3633, para. 65.

[40] In R v. Bottineau [2007] O.J. No. 1495 para. 78, the court, in considering whether the evidence adduced was reasonably capable of supporting an inference of planned and deliberate murder held:

…the applicants, the legal guardians of the deceased, were in command of a protracted period of designed deprivation, first of nutrition, later nutrition in combination with medical attention, of a child between the ages of two and six years. The nature and extent of their conduct, which widened from months into years, bespeaks an antecedent state of mind equivalent to that of a poisoner whose daily dosage reaches fatal proportions over time. The earlier state of mind is also informed by the after the fact conduct of the applicants including but not limited to their patent falsehoods about the deceased's eating habits and visits to the doctor.

Causation

[41] In addition to the mental element of planning and deliberation, some evidence from which an inference arises as to a significant causal link between the act or omission and the death itself is an essential element of First Degree Murder.

[42] There must be some evidence that acts or omissions consciously performed by the defendants are so connected with the death that they must be regarded as having a sufficiently substantial causal effect; that is, evidence that the defendant's conduct contributed significantly to the death. R v. Harbottle (1993) S.C.R. 306; R v Nette (2001) 2001 SCC 78, 3 S.C.R. 488; R v. Maybin (2012) 2012 SCC 24, 2 S.C.R. 30 par. 77

Party Liability

[43] An aider or abettor commits murder only if she or he knows of the principal's intention to kill or cause bodily harm and intends to help or encourage the principal. Fatima, supra para. 59

[44] In some instances there may be an absence of evidence that shows the precise role played by each defendant: "An inference of concerted or pre-concerted action may be drawn from the circumstances, for example where the persons charged had exclusive custody and control over the deceased". Fatima, supra para. 57

[45] Further, an accused could be found to be a party to an offence by omitting to act where there was a legal duty to do so. R. v. Popen (1981), 60 C.C.C. (2d) 232 at p. 238 (Ont. C.A.)

Analysis of the Evidence

Injury/Trauma

[46] Dr. Cunningham testified that the child had suffered numerous areas of trauma to his head, face and body. The nature of these injuries included:

• Multiple overlapping areas of blunt impact injury to his head and face;
• Abrasions to his right cheek, eye, temple, upper eyelids, his forehead and under his left eyebrow;
• The right side of the child's face and around his eye was quite damaged and the eye appeared swollen;
• The child's left eye was mildly sunken in its orbit and there were purple contusions to his left cheek, jaw and chin;
• Abrasions and contusions to his right and left ear, his chin and left side jaw, left lower lip (described as a deep healing laceration);
• Multiple areas of sub-scalp contusion and hemorrhage within his scalp tissue over the upper forehead and front and posterior scalp, on the right and left sides and at the right temple and the right side towards the back of his head;
• Abrasions and contusions to his neck on the right and left side including eleven irregular and curvilinear abrasions to the child's ventral and lateral neck and hemorrhage in the big muscle (right sternocleidomastoid) at the front of his neck;
• Contusions and abrasions to both his left and right hand and linear abrasion on his ventral left and right upper arm which involve hemorrhage into the muscle;
• Injury to both upper arms and right and left elbow abrasions;
• A contusion on the palm of his right hand a healing lesion on his dorsal right finger;
• Purple contusions on the child's right chest, and a .6 cm abrasion on his chest which showed signs of healing and four small linear and curvilinear abrasions to his right lateral chest;
• A lesion to his left upper chest/ventral shoulder area which showed signs of healing;
• Abrasions and significant deep injury to the soft tissues of his back and in particular deep muscle hemorrhage to his left upper back adjacent to his shoulder blade and beside his right shoulder;
• Deep intramuscular hemorrhage within the soft tissues of both of his buttocks;
• Multiple contusions and overlapping abrasions to his ventral right thigh and ventral and lateral left thigh and medial thigh, as well as abrasions and deep intra muscular hemorrhage to the right and left thigh;
• On the ventral-lateral left thigh a grouping of seven roughly parallel linear abrasions;
• Abrasions and contusions to the ventral and medial right and left knee;
• Deep intramuscular hemorrhage within the quadriceps of the child's right and left thighs and acute muscle disruption such that the muscles in this area have been damaged.

[47] In addition, the muscle of the child's left bicep had been damaged and torn. Dr. Cunningham testified that a fair degree of force would be required to cause this injury and tear the muscle underneath.

[48] Further, a bone in the child's left wrist was fractured and bleeding mid-bone and there were soft tissue abrasions to his left index finger and to both his upper arms.

[49] Dr. Cunningham testified that the generalized blunt impact trauma, contusions abrasions, lacerations to the child's head, neck, torso and extremities, were caused by multiple impacts against a firm surface or surfaces. Dr. Cunningham testified that these injuries could have been caused by multiple falls from a standing height or other mechanisms such as slapping, punching, kicking, or being struck with an implement.

[50] Dr. Cunningham testified that the multiple overlapping blunt impact injuries to the child's head and associated scalp hemorrhages over the surface of the brain suffered by the child represented individual impact sites. Further, that the bleeding seen in the dura which covers over the top of the brain, "right and left cerebral convexity", is indicative of significant trauma.

[51] Dr. Cunningham testified that the blunt impact injury to the head suffered by the child was not immediately fatal, however the injury could have led to concussion resulting in the child becoming unconscious or appearing stunned; "obtunded". Dr. Cunningham testified that if a child is obtunded, a lay person may not know why the child has a decreased level of consciousness but would recognize that the child is unwell: "definitely not normal behaviour for a four year old child." This physical state would have increased his risk of vomiting and aspiration of gastric contents.

[52] Dr. Cunningham testified that all the blunt impact injury suffered by the child was recent in their genesis as there was no evidence of acute inflammatory reaction associated with healing. In Dr. Cunningham's opinion the injuries to the child occurred less than 4 to 6 hours before his death; a time frame which included a few additional hours could not be excluded.

[53] Dr. Cunningham testified that the pattern of injury and wounding to the child's thighs including the curvilinear abrasions are similar to what is seen with injuries caused by fingernails and could support a mechanism of wounding the child by forcing him to stand while holding his thighs. A number of muscles had been torn. Dr. Cunningham testified that a significant degree of force would be required to tear muscle underneath a bruise. Dr. Cunningham agreed that the injuries to the front of the child's thighs suggest compression by a human hand.

Dr. Cunningham agreed in cross examination that there was no evidence to suggest a chronic pattern or trauma to the child in the form of a long term beating.

Malnutrition

[54] Dr. Cunningham testified that at the time of his death the child was suffering from chronic malnutrition.

[55] The child's medical records reveal that at a medical checkup on October 7, 2011, when he was 20 months old, he weighed 31 pounds and was found to be in the 76th percentile for length and in the 92nd percentile for weight.

[56] However, at the time of his death, the child weighed 27.6 pounds and was in less than the third percentile for children aged 4 years in terms of weight. The child's Body Mass Index (BMI) was in the 50th percentile and his height at 103 centimetres, in the 50th to 75th percentile for children age 4.

[57] Further evidence of the child's chronic malnourished state manifested in the following indicia consistent with his physical decline:

• The child's thin course hair and evidence that he was losing hair;
• His atrophied skeletal musculature and the disparity between his height and weight;
• Evidence that the child suffered significant, marked depletion of his fat stores and fatty tissue;
• Evidence of multiple prominent ribs and prominent spiny processes (that is that the bones in his back along his vertebrae protruded);
• Evidence of chelitis (that is cuts and cracks to the sides of his mouth) consistent with signs of vitamin deficiency;
• Evidence that the child suffered edemea to his lower legs and feet consistent with protein malnutrition;
• Mild to moderate increase in iron in the splenic tissue consistent with vitamin deficiency;
• Evidence that the child's major organs – brain, heart, liver, spleen and kidneys were significantly smaller than that of a typical 4 year old child including that his heart muscles were beginning to atrophy;
• Evidence that the child's thymus, an organ which should be overdeveloped in a child of his age, was in fact so atrophic and intermixed with surrounding soft tissue that it could not be weighed.

[58] Dr. Cunningham also observed anterior wedging in the child's spine such that his spine curved more than normal. Dr. Cunningham's opinion is that this form of wedging is possibly associated to compression fractures that may occur in the setting of chronic malnutrition.

[59] Dr. Cunningham testified that restriction to the child's caloric intake in the form of carbohydrates, protein and fats could have led to the malnutrition which was identified during the post mortem examination however he could not ascertain the precise nature of the nutrient restriction.

[60] Dr. Cunningham testified that there was no evident physiological cause to the child's wasted and atrophied condition.

[61] Further, Dr. Cunningham testified that the child's chronic malnourished state could have been present for many weeks up to many months if not longer prior to his death.

Is There Any Evidence From Which a Reasonable Inference Arises That the Child's Murder Was Planned and Deliberate?

[62] In Bottineau, supra, a child who died just before his 6th birthday, was in the third percentile of height and weight at the time of his death; he was eight inches shorter than the average child of his age. He was described by the pathologist as extremely malnourished and wasted.

[63] There was evidence that the child would not have had the ability to interact with his environment in any meaningful way for weeks, even months, before he died. He would have been unable to walk or climb stairs. There was evidence in that case that it would have been clear to anyone during the weeks and months leading up to the child's death that without medical intervention his death was imminent.

[64] Further, there was evidence that although the child ultimately died of septic shock from pneumonia, his weight loss from chronic malnutrition was sufficiently severe that it would also have been expected to be fatal. It was the pathologist's opinion that the malnutrition the child suffered had occurred over a number of years. Bottineau, supra, para. 147-179

[65] In this case, there is evidence that both defendants were in charge of a protracted period of deprivation of nutrition and medical attention for the child. The family photos and text messages reveal the drastic changes in the child's appearance from about January 2014. These changes included weight loss and a change in his demeanour and abilities, which was the subject of anger and frustration between the defendants and something that they were aware of for months prior to the child's death.

[66] However there is no evidence of a substantial causal link between the malnutrition the child suffered and his death. Nor is there evidence that the child's death from malnutrition would have been imminent had he not received medical attention for the malnutrition.

[67] As such unlike Bottineau supra, a route to committal for trial on a count of First Degree Murder is not supportable solely on the basis that the defendants caused the child to be deprived of medical attention and nutrition for a significant period of time; no integral causal link to his death has been established in this respect.

[68] However, in addition to being in command of this protracted period of deprivation of the child's necessities, there is ample evidence from which a reasonable inference arises that the defendants as principal or party were involved in a vicious beating of the child during which he suffered the head injury. This head injury was a substantial cause in his death.

[69] The expert opinion tendered regarding the likely time of the child's death gives rise to a reasonable inference that the child's injuries, including his head injury, occurred within a time frame of 2 to 7 hours before his death. There is an available inference as well as direct evidence, that both the defendants had opportunity and charge of the child and interacted with him when he was in a critical injured state.

[70] In addition to the obvious injury apparent on the child's face, and his non-responsive demeanour, Dr. Cunningham testified that the child's movements evident on the video, namely his hands curling into fists, is consistent with an involuntary unconscious process called 'neurological posturing', observed in individuals who are at or near death. Dr. Cunningham testified that this is not a process which occurs instantly.

[71] There is sufficient evidence that gives rise to a reasonable inference that the defendants unlawfully caused the child's death and that they intended to kill the child or cause him bodily harm they knew would probably kill him and were reckless as to whether he died or not.

Other Circumstantial Evidence Relevant to Planning and Deliberation

Post Offence Conduct

[72] There is evidence that although the child was dying or deceased one or both defendants staged the scene by changing his clothes before the emergency personnel arrived. The clothing the child was wearing in the video captured on one defendant's phone is different from what he was wearing when emergency personnel attended.

[73] The call to 911 was not made by the defendant until the child was deceased long enough for rigor mortis to have set; there is therefore a reasonable inference given the totality of the evidence that there was an intention on the part of the defendants that the child die.

[74] There is a reasonable inference that arises from the evidence that one defendant lied about the timing of the child's injuries, the cause of the child's injuries, and whether the child was in fact alive when he called 911, and there is evidence that the other defendant, though in the house at the time emergency personnel attended did not attempt to provide any information about what had occurred to emergency personnel.

[75] There is evidence that the female defendant was present in the home with the child and interacting with him when he was critically injured further affording a reasonable inference that she was present when the child's injuries were sustained.

[76] There is evidence of a series of three text messages sent from the female defendant's phone to the male defendant's phone on October 13, 2014 between 6:43 and 6:47 from which an inference arises that she knew that the child has been injured in some fashion: "Anything yet how is he: I need to know if he's ok; At least let me know what hospital your going to."

[77] There is a reasonable inference available that the female defendant was complicit in the male defendant's post offence conduct.

[78] Further, the nature of the female defendant's brief exchange with the male defendant in the presence of emergency personnel is some evidence from which a reasonable inference arises that she did not want the child to receive medical care.

[79] There is evidence given the content of the text messages in this case from which a reasonable inference arises that that since early in 2014 the defendants were having problems which they perceived as behavioural with the child. The issues according to the text messages appeared to centre around regression in the child's speech and language and toilet training, something which the defendants perceived as wilful behaviour on the child's part and which they decided to respond to by 'correction' instead of medical intervention.

[80] There is evidence that the female defendant was principally engaged in acts of assault and depriving the child in the months prior to his death under the guise of 'corrective measures' for his behaviour. The female defendant made references in her text messages to the male defendant to giving the child a "tan" and "tanning his ass" based on her perception that he was not behaving to her liking or toileting as she expected he should.

[81] The male defendant, in a text message to his brother, expressed concern that it was not safe to leave his children alone with the female defendant. The male defendant, as the child's father, had a positive duty to protect him from the female defendant's assaultive behaviour.

[82] However, there is also evidence from the text messages that the male defendant supported the course of conduct adopted by the female defendant with respect to how the child was being treated in their home.

[83] The crown submits that there is further circumstantial evidence from which a reasonable inference arises that the defendants bore hostility towards the child consistent with an antecedent mind set.

[84] For example, the child had not received any medical attention since October 7, 2011, when he was 20 months old even though the other members of the family continued to seek and receive medical treatment, and even though the child was malnourished and wasting and even though there appeared to have been a dramatic change in him. The female defendant, on the other hand, sought medical attention for herself in April 2014 and twice in May 2014.

[85] In addition there is evidence of a stark contrast between the conditions of the child's bedroom as it appeared on October 13, 2014, barren and without bedding, toys, or anything of comfort, from that of his brother's room which is furnished, painted and appears comfortable. Officers who attended the home described the child's mattress as extensively stained and with the springs coming through the mattress.

[86] Further, the condition of the child's bedroom on or about October 13, 2014 was very different from how his room looked on June 13, 2013. As shown in the evidence, on or about June 13, 2013, the child's room was littered with toys and books and his bed had bedding and pillows. The condition of his room at the time of his death, as compared to his room a year prior, supports an inference of an increasing level of animus held by the defendants towards the child.

[87] There is evidence that the defendants were in command of a significant period of designed deprivation of food and medical attention for the child over many weeks if not many months, and there is evidence that the defendants should have been and were aware of the child's declining health and showed a callous disregard for his well-being.

Findings

[88] A preliminary inquiry justice must consider the totality of the evidence; any reasonable inferences available on the evidence favourable to the crown must prevail whether the court ultimately agrees or not that the preponderance of the evidence supports committal or that alternative scenarios advanced by the defense ring truer. It is the capacity for the evidence to afford a basis for the reasonably instructed jury to convict the defendant(s) in relation to a count of First Degree Murder which is at issue. Bottineau, supra

[89] Does that capacity exist on this evidence?

[90] The totality of the evidence from which reasonable inferences arise capable of supporting an inference that the child's death was a planned and deliberate killing is as follows:

• That the defendants allowed their child to become weak, wasted and malnourished without getting him any medical assistance for a period of many weeks or many months from which a reasonable inference arises that they possessed an antecedent state of mind towards his life and well-being;

• That the defendants as principal or party, beat the child viciously while in this weakened state inflicting serious and significant bodily harm to the child;

• That the child suffered a head injury in the course of the beating which was not immediately fatal but left him in an obtunded state, which would have been apparent to the defendants;

• That the defendants did not render him any timely medical assistance for the head injury;

• That the child aspirated his stomach contents and asphyxiated also a process which was not immediate;

• That the defendants did not render him any timely medical assistance but allowed him to suffer and die before the male defendant called 911;

• That the defendants acting in concert, one with the support and encouragement of the other, engaged in post offense conduct consistent with hiding their intentional act to cause the child's death: changing his clothes; lying to emergency personnel about how the child became so injured, as well as in relation to his health and responsiveness prior to the call to 911.

[91] There is evidence of a history of animus, assault and a callous disregard for the life and well-being of the child by the defendants from which reasonable inferences arise that the defendants possessed an increasingly antecedent state of mind towards the child, withdrawing essential necessities from him in an increasingly dangerous and callous manner.

[92] This is a case where the evidence of the nature and extent of the defendants' ongoing omission in relation to the child prior to October 13, 2014, in combination with the evidence of the injurious nature of the acts and further omissions they committed on the child on October 13, 2014, as well as evidence of their increasing animus towards the child leading up to his death, supports a reasonable inference of planning and deliberation.

[93] The law does not require evidence that the defendants formed a plan to kill the child over a protracted period of time; only that at some point prior to his death the plan to kill the child crystallized in the defendants' minds. The totality of the evidence I find is capable of supporting such an inference.

[94] There are certainly other reasonable inferences available on this evidence which are arguably more compelling and are consistent with a lesser degree of culpability on the part of the defendants. However it is not my role at the preliminary inquiry stage to make any determination regarding the viability of these competing inferences.

[95] A consideration of the totality of the evidence leads me to a determination that there is some evidence upon which a reasonable jury properly instructed could convict the defendants of First Degree Murder.

Extraneous Issues - Force Feeding and Forcible Confinement

[96] The court raised with counsel whether there is any evidence of force feeding or forcible confinement in this case. The court is grateful to them for their further submissions which were helpful in resolving these issues.

[97] The court asked counsel to provide submissions in respect of the following aspects of the evidence on the issue of force feeding: the male defendant's utterance that he had fed the child an hour before his death; in combination with: the abundance of food found in the child's lungs and lung lobes; the presence of the significant injury to the child particularly the curvilinear marks to his ventral neck; the evidence from the text messages which reveal a history of problems with the child eating; and the reference to having to force him to eat in text messages dated June 5 and 6, 2014.

[98] The question was important given the evidence before the court that aspiration of the child's gastric contents was the principal cause of his death. Had there been some evidence from which an inference was reasonably available that the defendants used the mechanism of force feeding to cause the child's death, the court would likely have been satisfied that committal in relation to First Degree Murder was warranted on that basis; effectively evidence of a pattern of starving the child and then drowning the child in food.

[99] The Crown submits as follows on this issue: "… there does not appear to be any evidence that the child was force fed on the day he died. There is some suggestion in the text messages that the child was reluctant to eat in the past. There is also some evidence of injuries to the child's neck and jaw. And there is some evidence that the child was fed sometime before he died. However, that is as far as the evidence goes. The Crown submits that there is no evidence connecting these facts to allow for an inference of force feeding."

[100] The issue of forcible confinement is also significant as it is a route to liability for Constructive First Degree Murder pursuant to section 235(5)(1)(e) of the Criminal Code. The evidence of confinement does not require total physical restraint or that the victim be confined the entire time. There must be some restraint against the victim's wishes for a significant period of time before there can be an unlawful confinement. R v Gratton (1985) 18 CCC (3d) 462, 473 (Ont. C.A.)

[101] The court raised this issue with counsel because of the evidence of extensive injury to the child's thighs, which Dr. Cunningham testified could be consistent with forcing the child to stand, the curvilinear marks on the child's jaw and thighs which Dr. Cunningham testified could be consistent with fingernail marks, and the timing of these injuries. There is some evidence that they may have been inflicted at a time proximate to the blunt impact trauma to the child's head and ultimate asphyxia.

[102] In Kematch, a case that involved the murder of a child by her parents, though factually distinct from the case before the court, the Manitoba Court of Appeal recognised that physical restraint in the instance of a forcible confinement may be effected by actual, physical means, or as in the case of a parent and child, non-physical or psychological means, such as by threats, intimidation or the imposition of fear: "In the case of a child and a parent, or an adult and a child, the need for physical bindings or the like would be even less of a requirement because of the unequal relationship that already exists." R v. Kematch, (2010) MBCA 18 at para. 55 and 89

[103] The forcible confinement must be inherent to the actual act of killing and requires evidence of participation of the parties in the unlawful confinement. The confinement and the murder need not have occurred simultaneously but there must be a close temporal and causal link between the two which brought about the death. R v. Pare, [1987] 2 S.C.R. 618; Kematch infra, para 110, 111; Kahn supra para. 124 to 128

[104] The crown in its further written submissions argues that there may be some evidence that the child was physically restrained proximate to his death given the video found on the male defendant's phone, which shows the female defendant with her hand around the child's jaw and holding his head.

[105] The crown further submits that the curvilinear marks and abrasions seen on the child's face and thighs during post mortem examination, is consistent with some evidence that the child may have been restrained proximate to his death, However the crown submits that there is no evidence of a causal link between any physical restraint of the child and his death.

[106] Although, there may be some evidence of "over feeding" and physical restraint, both of which appear temporally connected to the child's death, neither of these scenarios were advanced by the crown nor put to Dr. Cunningham in a hypothetical. Counsel has rightly pointed out the absence of any causal connection between any possible inferential evidence of physical restraint of the child and his death.

[107] It is therefore speculative at best to conclude that a reasonable inference arises in either of these scenarios. In coming to the ultimate conclusion regarding sufficiency of the evidence in this case, the court does not rely on either scenario as available on the evidence.

Other Transactions

[108] Section 548(1)(a) of the Criminal Code mandates that a justice shall order an accused person to stand trial in respect of any other indictable offense which arise in relation to the same transaction as the offenses charged, if in the opinion of the court there is sufficient evidence to order committal in this respect.

[109] There is evidence that in the months leading up to the child's death that the defendants failed to obtain necessary medical treatment or assistance for the child in relation to his declining health and nutritional needs, and may as well have intentionally deprived the child of nutrition.

Conclusion

[110] The court finds based on the totality of the evidence that there is sufficient evidence based on the test in Sheppard, supra to commit both the defendants to stand trial in relation to one count of First Degree Murder.

[111] Given the evidence, the court finds further that both the defendants should be committed for trial on the additional count of Failure to Provide the Necessaries of Life between March 19, 2014, and October 13, 2014.

Date: July 14, 2016

Signed: Justice Sandra Bacchus

Footnotes

[1] Dr. Cunningham reported that it was bleeding so much in the area adjacent to the right scapula that a hematoma formed and was pushing the adjacent tissue aside.

[2] Dr. Ramsay, consistent with Dr. Cunningham's evidence testified that the child had suffered an acute head and brain injury in a number of forms which included bruising to the skull, bleeding to the dura and bleeding to the subarachnoid spine.

[3] There were some injuries observed to be older injuries. Dr. Cunningham testified regarding a lesion to the child's left shoulder that showed signs of healing and that the ulcerated lesions appearing on the inside of the child's left lower lip was potentially days old. Dr. Cunningham testified that the injury to the child's right sternocleidomastoid muscle in the child's neck showed evidence that there had been bleeding in this area before and that the small curvilinear scars in this area may be associated with: "trauma to the neck that occurred at some point in the past". Dr. Cunningham testified that he observed focal iron staining in the injury to the child's right thigh and to the skin of the child's midline from the mid and upper back suggesting prior bleeding in this area.

[4] Dr. Cunningham testified that the presence of food in the child's stomach, formed stool and urine in his bladder suggests that at some point in the recent past the child had some food.