Court File and Parties

Ontario Court of Justice

Date: 2020-01-30

Court File No.: Brampton 3111-998-18-2338

Between:

Her Majesty the Queen

— and —

Nicholas Butcher

Before: Justice A.R. Mackay

Heard on: July 15, 16, 17, 18, 19, 22, October 1, 2, 3, 2019

Reasons for Judgment released on: January 30, 2020

Counsel

Robin Prihar — counsel for the Crown

S. Jay Passi — counsel for the accused Nicholas Butcher

Judgment

MACKAY J.:

Overview

[1] Mr. Butcher is charged with assault causing bodily harm with respect to his infant daughter Callie.

[2] I determined in an earlier ruling that one of the two statements the defendant provided was not voluntary and further that it should be excluded as a result of a breach of his s. 10(b) Charter Rights. For the most part the evidence against the defendant is circumstantial.

[3] Callie lived in a one bedroom apartment in Mississauga with her parents, the defendant and Nicole Hunter. Callie's only caregivers were Ms. Hunter, Mr. Butcher and Ms. Catriona Lockhurst, Ms. Hunter's mother. Ms. Hunter and Mr. Butcher worked different hours and both worked shift work; each parent would spend hours alone with Callie. They took turns at night taking care of Callie. When both parents were working, Ms. Lockhurst would look after the infant. Both Ms. Hunter and the defendant would take turns taking Callie to Ms. Lockhurst.

[4] Callie, who was approximately 4 months old, was first brought to the hospital by Mr. Butcher and Ms. Hunter, on January 25, 2018, where it was determined that she had a skull fracture. After a full day at the hospital Mr. Butcher was interviewed by Cst. Jason Smith. During the interview the defendant advised for the first time that Callie had fallen off the change table and hit her head. By this date, she was able to roll over from her stomach to her back and wiggle herself a few inches.

[5] When Callie was born she had meningitis, thereafter the only issue she had was with passing bowel movements. This issue continues to this day. She takes supplements to help her with her digestion. On the advice of their doctor, both parents would at times attempt to assist Callie with her bowel movements. This involved bringing one leg up at a time to her stomach. Ms. Hunter could see that this exercise caused her discomfort and she did not like to do it very often. Ms. Butcher would often do this exercise with Callie but he would bring both of her knees up at once to her stomach and have her sit on his lap. The parties have referred to this maneuver as the pooping exercise.

[6] Once Mr. Butcher disclosed to Cst. Smith about the change table incident, Cst. Smith was satisfied that the incident was an accident and did not lay charges. However, the Suspected Child Abuse and Neglect Unit (SCAN) wanted to do follow up x-rays of Callie a few weeks hence. On February 9, 2018, after the x-rays were taken, it was discovered that Callie had four broken ribs and a fractured metatarsal, a bone on the big toe. The Children's Aid Society ("CAS") was called and Callie was apprehended by the Society. A few days later, Mr. Butcher, Ms. Hunter and Ms. Catriona Lockhurst, the maternal grandmother, attended the Special Victims' Unit (SVU), at the request of Cst. Smith. All were interviewed by police as they were the primary caregivers for Callie. Mr. Butcher was arrested for assault cause bodily harm towards the tail end of his interview.

[7] The Crown called Cst. Jason Smith, Dr. Melissa Rossoni, Nicole Hunter and Catriona Lockhurst.

[8] The following is a review of the relevant evidence.

Cst. Jason Smith

[9] Cst. Smith was working for the SVU, focusing on offences against children and sexual assault offences. On January 26, 2018, Cst. Smith received a call from CAS advising that a 4½ month old baby had a skull fracture with no explanation for the injury. The CAS requested a joint investigation with the police. As a result, Cst. Smith attended to conduct the interview. He arrived at the hospital at 11:35 p.m. and first spoke with the attending physician, Dr. Rossoni. He was advised that as a result of the seriousness of the injury, the infant was transported from Brampton Civic Hospital to the Hospital for Sick Children.

[10] The doctor advised that the injury occurred as a result of blunt force impact to the back of the head. Up to this point in time no one had provided an explanation for the injury. Dr. Rossoni was able to determine that the injury was recent due to the swelling but could not give a specific timeframe as to when the injury occurred. A full x-ray of the infant's body did not reveal any other fractures at this time.

[11] Cst. Smith met with both the mother, Ms. Hunter and the father, Mr. Butcher to try to find out how the injury could have occurred. Cst. Smith interviewed the defendant and his partner, Cst. Melissa Ryan, interviewed the mother. The interviews were conducted in the SCAN Unit, at the hospital.

[12] Cst. Smith commenced his interview with Mr. Butcher immediately after Ms. Hunter was interviewed at 2:10 a.m. and ended it at 3:20 a.m. During the last few minutes of the interview the defendant admitted to knowledge of how the injury occurred, however, this was not recorded due to an issue with the recorder. For close to an hour Mr. Butcher misled Cst. Smith in denying any knowledge about how his daughter received the head injury.

[13] Cst. Smith believed the file would be closed until he received information on February 9, 2018, approximately two weeks later, that the SCAN Unit identified further injuries on Callie. After speaking with Dr. Rossoni, he learned that there were abnormalities showing on the x-rays taken on January 26th and that further x-rays revealed them to be fractures: Callie had four fractures to her ribs and a fracture to her metatarsal. These injuries were not consistent with a fall from a change table. Given the infant was not mobile, these injuries could not have been self-inflicted. As a result of this information Cst. Smith scheduled an interview with the defendant, Ms. Hunter and Ms. Lockhurst, Callie's grandmother. Cst. Smith was made aware that Callie had been apprehended by CAS.

[14] Ms. Hunter and her mother, Ms. Lockhurst were interviewed by Cst. Smith on February 12, 2018. Both denied injuring Callie. In addition, at trial they also denied harming the child. Defence counsel never suggested that Ms. Hunter or Ms. Lockhurst did anything to intentionally harm Callie.

Nicole Hunter

[15] Ms. Hunter was devastated when her child was taken by the CAS. She was 22 years old at the time of the trial, and closer to 20 at the time of the allegations. Mr. Butcher was approximately 22 when he was charged.

[16] On January 25, Mr. Butcher picked her up from work and advised that their daughter had some swelling to the back of her head. She asked Mr. Butcher if Callie had fallen and he replied that he did not know what happened. He wanted to take Callie to the hospital but Ms. Hunter thought they would be seen sooner by their family doctor. The family doctor then advised them to go directly to the hospital. They first attended Brampton Civic, from there Callie was transferred to the Hospital for Sick Children where Dr. Rossoni advised that Callie had a skull fracture. By the early morning of January 27 when Ms. Hunter was interviewed by police in the SCAN Unit she still did not know what caused the skull fracture to her daughter. It was not until she was brought into the interview room with Mr. Butcher and he told her that she had fallen off the change table.

[17] When Callie was at Ms. Hunter's parents' home, her sister Alex who was 16 years old would sometimes take Callie to her bedroom.

[18] After the second set of x-rays were taken on February 9 and Ms. Hunter learned that Callie had possible fractures to her ribs and toe, she immediately called Mr. Butcher to ask what happened. He advised that he did not know. She was advised during the second interview with police on February 12 that Callie in fact had fractures to her ribs and toe.

[19] Prior to being interviewed by the police Mr. Butcher told Ms. Hunter that he thought he "maybe hurt Callie by doing the 'pooping' exercise". Ms. Hunter dismissed this idea as she had never believed that he could have caused Callie's injuries this way. She never saw Mr. Butcher force her legs or put Callie in an uncomfortable position when doing this exercise. At this time, they were trying to figure out how it was possible for their daughter to have these injuries. She had only seen Mr. Butcher take his time with Callie and be patient with her. Ms. Hunter never saw Mr. Butcher get angry or frustrated with Callie. Prior to Mr. Butcher being charged, she never had any concerns about Mr. Butcher as a caregiver.

[20] After February 12 she had limited contact with the defendant. She moved in with her mother and was able to get Callie back from the CAS in March 2018, approximately a month after Mr. Butcher was charged. She had asked Mr. Butcher if he knew how Callie got hurt but he advised that he did not know what happened.

[21] Ms. Hunter stated that there were times when she got frustrated with Callie when she was crying and during those times she would put her down and give herself a break. There were nights when she would wake up to hear Callie crying, Mr. Butcher was looking after her. Ms. Hunter would come to the living area and notice that Mr. Butcher was doing the pooping exercises and she would take Callie to settle her and put her to bed. She also took Callie to give Mr. Butcher a break. Generally, the baby's sleep cycle was 11 pm to 5 am. On occasion Callie would be up in the early morning and be fussy.

[22] Ms. Hunter had never seen anyone forcefully squeeze Callie chest nor did she witness anyone applying pressure to her left toe. Ms. Hunter never applied any physical force to her daughter.

[23] During the pooping exercise Callie would sometimes hold her breath as if she was pushing and then she would breathe normally. Mr. Butcher's version of the exercise would sometimes help. Callie would cry during the exercise, this could be because of the bowel movement itself. Mr. Butcher would do the exercise daily. Ms. Hunter preferred to hold and rock her until she fell asleep. Sometimes Callie would have a bowel movement in her sleep. She would often get fussy and unsettled when she could not pass a bowel movement. When Callie was passing a bowel movement she would be extremely uncomfortable and the skin in the area of her birthmark would get purple or red in colour.

[24] In cross-examination Ms. Hunter agreed that she chose not to live with Mr. Butcher after his arrest so that she could get her daughter back. She did not trust Mr. Butcher any longer. He never accepted that he hurt Callie or denied it when she asked him what happened. She agreed that her opinion was influenced by what the police had told her.

[25] After Callie was apprehended by the CAS, both Ms. Hunter and Mr. Butcher were devastated. They cried throughout the following weekend. It was during this time that Mr. Butcher told her that maybe he caused the injuries because of the pooping exercise. She did not at the time think this was a possibility. On the morning of the second police interview, Mr. Butcher told Ms. Hunter that if it came down to CAS not returning the baby to them, he would take the blame so that she could have Callie.

Catriona Lockhurst

[26] At the time of the allegations, Ms. Lockhurst lived with her husband and 16-year-old daughter, Alexandra and her son. Ms. Hunter, her older daughter and Mr. Butcher would often drop Callie off at her house to babysit when they had to work.

[27] When Callie was at her house she would for the most part be in her care. For brief periods of time she would be with Alexandra.

[28] Ms. Lockhurst had attended the Hospital for Sick Children to see Callie when she had the skull fracture. She was also with her daughter and Callie when they reattended on February 9 for additional x-rays. She stated that when Callie was later apprehended by CAS her daughter "died inside that night".

[29] Ms. Lockhurst drove Mr. Butcher and Nicole to the police station for the February 12 interview. Whenever she asked either about what happened to cause the injuries to Callie she was always told they didn't know.

[30] When she asked the defendant what happened to Callie to cause the skull fracture on January 26, he told her he did not know what happened. Since February 12 Ms. Lockhurst has had no other conversation with Mr. Butcher about what could have caused Callie's injuries.

[31] When Callie got cranky she noticed that her daughter and Mr. Butcher would get a little rougher with her. She did not mean that they would hurt her, only that the cradling would be faster. She noticed this more with the defendant and recalled a time when he was putting on Callie's snowsuit that he cradled her faster.

[32] Callie was fussy when she had to have a bowel movement. Ms. Lockhurst would cuddle and shush her. She also gave the baby some water and sugar to loosen her bowel movements.

[33] Prior to February 9, Ms. Lockhurst did not see any bruising on Callie's body. She has never squeezed Callie's chest nor did she ever apply force to her left foot.

[34] After Mr. Butcher's arrest, Nicole agreed she would have to come live with her parents, in order to get Callie back. For the longest time her daughter believed that whatever the defendant had done was an accident. For a period of time after the defendant's release Nicole continued to see him. She was very emotional and upset, she believed she lost everything and wanted to go home to be with the defendant.

[35] Ms. Lockhurst did not approve of her daughter having contact with the defendant.

[36] When Callie was in her home everyone pitched in to help. However, her husband did not handle Callie and her son was rarely home. Callie still has problems with her digestion.

Dr. Melissa Rossoni

[37] Dr. Rossoni is a pediatrician who was working in the SCAN program at the Hospital for Sick Children in 2018. At this trial she was qualified to provide expert opinion evidence in the areas of clinical pediatrics and evaluation of children with suspected injuries. On January 26 she assessed Callie for her skull fracture. The Emergency Department referred Callie to the program because there was no explanation for her injury. The CT scan showed that she had a fracture of one of the bones of her skull on the right side. Related to the fracture she had a hematoma, bruising and swelling to her head. Because there was no explanation for her injury, Dr. Rossoni had a skeletal survey done of Callie's entire body. Some of the x-rays showed changes in some of the bones but it was not clear whether this was the way the picture was taken or if there were in fact other breaks in her bones.

[38] On January 26 Dr. Rossoni met with the defendant and Ms. Hunter and both advised they did not know the cause of her skull fracture. A number of tests were done to see if Callie was pre-disposed for fractures. All confirmed she was not.

[39] Callie's injuries did not require her to be admitted to hospital. Skull fractures typically heal on their own. However, they are followed by the Neurosurgery Division. CAS ultimately makes the decision as to where a child is to be placed.

[40] As a normal precaution Dr. Rossoni requested a second skeletal survey be completed 10 to 14 days after Callie was discharged. This was done on February 9. They do this as fractures in infants can be difficult to see; they also attempt to see if there is any evidence that a bone is healing from a fracture and finally, they want to make sure there is no evidence of any new injuries.

[41] From the second set of x-rays the radiologist was able to determine that there were fractures and that the irregularities noted on the first set of x-rays were likely representative of breaks in the same bones. The rib x-rays revealed there to be breaks in the anterior or front ribs on the right side from numbers 7 through 9, and on the left side on rib number 7, also on the anterior side of the front of the rib. The radiologist commented that there were signs of healing in those fractures.

[42] Dr. Rossoni could not advise whether the irregularities noted on January 26 represented recent injuries or fractures that were healing. It is expected to see signs of healing on an average within 7 to 10 days, but it can range from 4 to 10 days.

[43] For a rib fracture, the forced used to break the bone is applied indirectly and not at the site of the fracture.

[44] A dedicated x-ray of the foot revealed that the left metatarsal, the bone connecting the first big toe to the rest of the foot, showed signs of a healing fracture. Dr. Rossoni contacted CAS as there was a concern as to how these injuries occurred; further they were not consistent with a fall from a change table which was the injury explanation she received for the skull fracture.

[45] A foot fracture is very uncommon in infants who cannot crawl or walk. Such a fracture usually results from some sort of compression, twisting or direct impact that is forceful. A fall from a change table would be an unlikely cause for this fracture.

[46] Dr. Rossoni believed that a fall from the change table could have caused the injury to Callie's skull.

[47] It was Dr. Rossoni's opinion that significant force would be required to cause the rib fractures. Such injuries do not commonly result by accident. At the time of the injury event, Dr. Rossoni would expect the infant to show some signs of discomfort or distress, such as crying or screaming. Thereafter, it might be very difficult for someone to recognize that there was an injury there unless they were already aware of it. The symptoms may be absent or may be subtle.

[48] Dr. Rossoni's opinion was that the rib fractures were suspicious or concerning for inflicted injury. No accidental injury events were described to her that could have resulted in those rib fractures.

[49] With respect to the metatarsal fracture, Dr. Rossoni testified that she would expect symptoms at the time of the injury, such as crying or screaming or other signs of distress. There may be subtle or no symptoms after. It was her opinion that this fracture was most likely related to a significant force traumatic injury event. Birth injury is an uncommon cause of metatarsal fractures and would not be expected to be visible on x-ray at 4.5 months of age. Callie was not mobile and could not have caused the injury to herself.

[50] It was Dr. Rossoni's opinion that a fall from a change table where one of the drawers was left open, causing Callie to strike the drawer on the way down, would not have caused the injury to her foot or her ribs. However, direct impact with the foot could have caused the metatarsal to fracture. Further routine bicycling of an infant's legs would not cause an injury to either the metatarsal or the ribs.

[51] Dr. Rossoni stated that a caregiver, in applying the degree of force necessary to cause these fractures would know that they are causing discomfort to the infant, and would know that they were using more force than is comfortable for the infant because the infant would be crying or distressed.

Position of the Parties

The Defence

[52] Mr. Passi submits that the Crown has failed to prove that Mr. Butcher had the exclusive opportunity to harm his daughter. The medical evidence could not establish when the injuries occurred. At the time the first x-rays were taken the injuries could have been healing. The defence submits that I ought not to consider that Mr. Butcher initially lied to police and medical staff about the cause of Callie's skull fracture. This injury was determined by police and CAS to be an accident.

The Crown

[53] Ms. Prihar submits that the evidence of Ms. Hunter and Ms. Lockhurst was credible and that I should accept that they did not intentionally or even accidentally harm Callie. Given that Mr. Butcher was the only other caregiver, I should find when considering the whole of the evidence, that he had the exclusive opportunity to cause the injuries to his daughter. Mr. Butcher initially lied to police and doctors about how Callie sustained a fractured skull. The expert medical evidence concluded that the fractures to the foot and ribs were "suspicious of inflicted injury". The injuries were not the result of an accident or inattention, rather they were the result of significant force.

[54] The Crown argues that the circumstantial evidence called in this case is enough to prove beyond a reasonable doubt that Mr. Butcher intentionally harmed his daughter, causing her bodily harm.

Circumstantial Evidence

[55] The law is clear that in order to convict based on circumstantial evidence, a trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.

[56] If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

[57] In considering a case on appeal, where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence.

[58] The question I must ask myself is whether the circumstantial evidence establishes that Mr. Butcher's guilt is the only reasonable conclusion available on the totality of the evidence.

[59] The Crown argues that in addition to the circumstantial evidence, Mr. Butcher had the exclusive opportunity to harm Callie.

Exclusive Opportunity

[60] Evidence of opportunity, unless it is exclusive opportunity, is on a somewhat similar footing as evidence of motive. Mere opportunity is not accepted as corroboration where corroboration is required or desirable.

[61] In R. v. Yebes, the Supreme Court explained the difference between evidence of opportunity and exclusive opportunity at para. 27:

Where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourcière J.A. in R. v. Monteleone, (1982), 38 O.R. (2d) 651, 67 C.C.C. (2d) 489 at 493 (C.A.) at para. 27 where he said:

It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in a case where other inculpatory circumstances are proved.

Did the Accused Have Exclusive Opportunity?

[62] It cannot be said given the evidence I have heard that Mr. Butcher had exclusive opportunity to cause the injuries to Callie. Ms. Hunter, Ms. Lockhurst and some of her family members would have had contact with Callie during the relevant period of time. In addition, with respect to the time period when the injuries occurred, at most it can be said that the injuries could have been inflicted anytime during a period of a few weeks, more or less.

Given I Have Found That Mr. Butcher Did Not Have Exclusive Opportunity Is There Other Evidence That Establishes His Guilt?

[63] Mr. Butcher at one point said to Ms. Hunter that he wondered if he caused Callie's injuries when doing the pooping exercise. At the time of this statement, both he and Ms. Hunter were devastated as their daughter had just been taken from them. They were looking for answers as to how she could have sustained the fractures. Ms. Hunter quickly dismissed what the defendant said as being highly unlikely. She had seen him do the exercise and never had a concern. During this time, Mr. Butcher also stated he would take the blame in order for Ms. Hunter to get Callie back. While Mr. Butcher's statement to Ms. Hunter may point to a guilty conscience it can also be the result of a desperate attempt to try to come up with an explanation for Callie's injuries so she could be returned.

[64] Another circumstance that may point to Mr. Butcher's guilt is that he lied to Ms. Hunter, the police and medical staff about how Callie sustained a skull fracture. Again it is to be noted that while at the hospital x-rays revealed the further injuries. However, it was not known to anyone at this time that Callie had these additional fractures until a second set of x-rays were done several days later.

[65] The skull fracture was determined by police and the CAS to be accidental. The expert medical evidence also supported the fact that this injury could have occurred from a fall.

[66] While both Ms. Hunter and Ms. Lockhurst denied doing anything to injure Callie, they also testified that Mr. Butcher was a good caregiver. He was not seen to lose his patience with his daughter. He never did the pooping exercise in manner that would cause Callie to be injured. Ms. Hunter never saw Mr. Butcher act aggressively or out of frustration when caring for Callie. Ms. Lockhurst testified that both parents were at times a little rougher with Callie when she got fussy. Her use of the word rougher referred to the fact that they would rock her a little faster than normal.

[67] Ms. Hunter testified that there were occasions when she would be woken up in the early morning by Callie crying. She would then go and assist in trying to calm her daughter and give Mr. Butcher a break. When she came out of the bedroom Mr. Butcher was doing the pooping exercise. Ms. Hunter was not sure if Callie was crying because of the pooping exercise or as a result of needing to have a bowel movement. Ms. Lockhurst and Ms. Hunter testified that Callie would often cry when needing to have a bowel movement.

[68] I accept that Ms. Lockhurst and Ms. Hunter would not intentionally harm Callie. They were credible and reliable witnesses. When Callie was in Ms. Lockhurst's home, others family would be present and help look after her for brief periods of time. Although for the majority of the time Ms. Lockhurst would look after Callie, her 16 year old daughter would take over when she went outside for a smoke. The fractures to Callie's ribs and toe would take only moments to inflict on her fragile little body.

[69] Dr. Rossoni advised that signs of healing fractures can be present for weeks after an injury event. Although the fractures appear to be present on January 26, it is unknown when they were caused, or whether they were recent or healing fractures.

Conclusion

[70] When an infant suffers significant injury there is a strong desire to make someone accountable. While it is tempting to make the leap that because Mr. Butcher lied about how Callie sustained the skull fracture, that he must have been the one who caused the other injuries, it would be contrary to the presumption of innocence, and the burden of proof to do so.

[71] The criminal justice system attempts whenever possible to make those who harm children accountable and to prevent future harm to children. However, it must also be concerned with other social risks, among them the enduring specter of wrongful conviction. It is for this reason the justice system requires proof beyond a reasonable doubt to ground a conviction. While I do suspect that Mr. Butcher momentarily lost his control when caring for his daughter and caused her serious injury, a suspicion is not enough. Accordingly, I am left with a reasonable doubt and must acquit the accused.

Released: January 30, 2020

Signed: Justice A.R. Mackay