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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice

Date: December 1, 2023 Court File No.: 22-82300069

Between:

HIS MAJESTY THE KING

— AND —

MOHAMED BELKHIER

Before: Justice Angela L. McLeod

For Preliminary Inquiry: June 13, 14, 16, 21 and 23, 2023

Counsel: SARAH SULLIVAN, counsel for the Crown MARTIN MONTES, counsel for the accused

McLeod J.:

Overview

[1] Mr. Belkhier is charged with aggravated assault and criminal negligence, both counts relating to the same victim, Scarlett Phillips. Scarlett was 5 months old at the time of the allegations, November 2021.

[2] The preliminary inquiry was held only in relation to the aggravated assault count.

[3] Scarlett’s mother, Erin Phillips, was dating Mr. Belkhier. He did not formally live at the family residence but stayed over night regularly, sleeping on the couch due to a bad back.

[4] Ms. Phillips has two other daughters, Lily who was 7 years old at the time and Patricia (also known as Annie) who was 20 years old at the time.

[5] The events in question took place over the course of the weekend, from November 19, 2021, to November 22, 2021. A summary of the non contested facts follows:

(1) On Friday, November 19, 2021, Ms. Phillips, Mr. Belkhier and Lily went to Costco to shop.

(2) Scarlett was left in the care of Annie. Scarlett was healthy, was given a bath and ultimately put to bed.

(3) When the family returned from Costco, Scarlett was awake and was placed in her swing. She was returned to her bed thereafter.

(4) Mr. Belkhier did not handle Scarlett throughout this time.

(5) Ms. Phillips went to bed between 12:30 and 1:00 am.

(6) Both Ms. Phillips and Mr. Belkhier consumed wine throughout the evening.

(7) Mr. Belkhier was very good to Ms. Phillips and the girls and was helpful and supportive. He was loving and attentive to Scarlett. He would assist with her feeding and changing.

(8) Saturday morning Scarlett was making an odd sound, she vomited. She was sleepy and was spitting up her food.

(9) Mr. Belkhier had left the residence to go to work. Ms. Philips asked him to return. He arrived around 7:00 am.

(10) Throughout Saturday, Scarlett ate and vomited. Ms. Phillips asked Mr. Belkhier if he had seen anything that might account for Scarlett’s health situation. He advised that he had not seen nor heard anything.

(11) Annie asked Mr. Belkhier if he had dropped the baby. He said no.

(12) Sunday morning, Ms. Phillips noticed a significant change. Scarlett was not using one side of her body; her limbs were not moving. She was taken to the local hospital and then transferred via Air Ornge to Sick Kids Hospital in Toronto.

(13) Scarlett had repeated, extended seizures at the hospital.

(14) While at the hospital Ms. Phillips asked Mr. Belkhier via text if he had dropped Scarlett. The doctors at the hospital had advised her that Scarlett was suffering from a brain injury. Mr. Belkhier text that it was an accident. She asked him how high she fell from, and he told her from the height of his arms.

(15) Remarkably, after care and treatment, Scarlett has fully recovered.

[6] The defence admitted jurisdiction and identity of the accused.

Witness Testimony

[7] In addition to the non-contested evidence, Ms. Phillips testified about three possible, alternative causes to Scarlett’s injuries; namely, an incident at a tire shop early in the day on the Friday, a situation with the family sofa and a situation with Lily hitting Scarlett. Additionally, Ms. Phillips testified that there was a possibility that Scarlett had come into contact with some meat that was purchased at Costco.

[8] Ms. Phillips testified about contact between she and Mr. Belkhier on the Monday while she and Scarlett were both in attendance at the hospital in Toronto. Several text messages were filed as composite Exhibit #1.

[9] Ms. Phillips was questioning how Scarlett became injured. She asked Mr. Belkhier if he had dropped the baby and noted that “Patricia [Annie] woke to her screaming and were coming out of the bathroom with her in your arms, did you drop her, I need to know moe [Mr. Belkhier].” Mr. Belkhier responded as follows:

Babe I swear god she was crying I wake up running as usual I am not sure if she drop off properly when I put her back to the bed I thin I did wrong because of dark or she hates the side of the bed because she crying more after that I take her back then patricia come over I don’t know believe me I never hurt her like this i didn’t sleep I think my bad fuck

[10] Ms. Phillips then replied, “It was an accident, we will figure it out and do whatever we need to for Scarlett.” She then asked “…how high did she fall from.” To which Mr. Belkhier responded, “I think from my arm when I turn down to her bed is not high.”

[11] Lily’s November 2021, audio/video statement to the police was made an exhibit at the preliminary inquiry. The salient portions of that evidence follow:

(1) In the middle of the night, (Friday night into Saturday) she heard Scarlett crying.

(2) She was standing by her bedroom door and saw her mom’s boyfriend (Mr. Belkhier) went to pick up the baby and ran to the bathroom. He didn’t turn on the light and he had the baby on his shoulder with no support. He was holding on to her feet and not her back, “like a wobbly noodle”. The baby had white stuff dripping from her mouth.

(3) The baby hit the door of the bathroom and then fell. The baby was crying and crying.

(4) Mr. Belkhier ran from the bathroom to the bedroom to put Scarlett into her bed. Her mother woke up and Mr. Belkhier ran to the couch and put the blanket over him and acted like he was sleeping.

(5) In the morning her mother asked Mr. Belkhier if he had dropped the baby. He said no.

[12] At the time of the preliminary inquiry, Lily was 9 years old. She testified that she was not sure who had picked up Scarlett in the middle of the night because the lights were off.

[13] Annie testified that she woke up around 5 or 6 am Saturday morning. She heard Scarlett crying. She heard Mr. Belkhier handling Scarlett. She saw him walking from the bathroom and he walked past her. His voice was soft, and he was trying to console Scarlett. She tried to take Scarlett from him, as he had both hands under her bum, and she was over his shoulder. He was not supporting her back. She described Scarlett as ‘wobbly’. Scarlett had no support for her neck. Mr. Belkhier ‘swiped’ past her. Scarlett quieted down and Annie went back to sleep.

[14] Annie testified that on the Monday Mr. Belkhier broke down in tears and told her that he had dropped Scarlett. He was very distraught. He gestured with two hands indicating how she was dropped.

[15] Dr. Kadar was qualified as an expert. He works at the Sick Kids hospital in the SCAN program, dealing with potential maltreatment victims. He treated Scarlett who had been referred to him by the intensive care doctor on November 22, 2021. The salient points of his evidence are as follows:

(1) Scarlett’s brain injury was more than subdural haemorrhages; there was brain tissue damage as well.

(2) Scarlett was being treated for a trauma brain injury.

(3) Scarlett had a series of bruises on her left arm/shoulder area, the right arm and a linear bruise on the back side of her right shoulder.

(4) Infants, particularly those who are not ambulatory, do not have the strength to cause self inflicted bruising. For an infant of Scarlett’s age, any bruising would raise a significant measure of concern.

(5) Routine handling and caregiving should not result in bruising to the body. Significant force would need to be applied and a caregiver should recognize that the amount of force applied was excessive. Infants do not bruise easily.

(6) In his opinion, Ms. Phillips alternative theories of causes of the injuries were not likely. In his opinion, the bleeding was most likely the result of a significant traumatic brain injury, not everyday handling or routine care, either via blunt force or inertial, or a combination of both.

(7) It would be a rare instance where the injuries were as a result of an infant’s head hitting a door frame and then falling to the ground.

(8) The actions of a party in this instance would not necessarily be intentional.

(9) Traumatic head injury is a reasonable explanation for vomiting.

(10) The symptoms displayed by Scarlett would be as a result of an injury hours to a day prior to symptom onset.

(11) Without intervention by medical professionals, there was a reasonable to high likelihood that the brain injury could have worsened and threatened her life. Scarlett was critically ill.

Crown Position

[16] The Crown asserts that Mr. Belkhier caused the injuries to Scarlett and that he omitted telling either Ms. Phillips or medical practitioners what had happened, thus is guilty of aggravated assault and criminal negligence. As noted above, the preliminary hearing was held only in respect of the aggravated assault count.

[17] The Crown asserts that the evidence called demonstrates that a properly instructed jury could reasonably infer that Mr. Belkhier intentionally applied force to Scarlett and that the force applied resulted in maiming or endangering her life.

[18] The Crown acknowledges that the evidence proffered of Mr. Belkhier carrying Scarlett “neglectfully in the dark, caused her to strike the door accidentally and subsequently fall; all of which would be the application of force to SP but clear, not force Mr. Belkhier chose to apply.”

[19] However, the Crown submits that the jury at trial could “reject the evidence […], either in whole or in part, and acquit Mr. Belkhier of criminal negligence causing bodily harm, but convict him of aggravated assault, if they concluded that Mr. Belkhier chose to apply force to SP in some other way not witnessed first-hand.”

[20] The Crown additionally submits that the identity of the perpetrator of force to Scarlett may be a live issue at trial, as Mr. Belkhier did not have exclusive opportunity to cause injury.

Defence Position

[21] The defence submits that there is insufficient circumstantial evidence from which a reasonable inference could be drawn that the accused intentionally applied force to Scarlett nor that the accused had objective foresight of the risk of bodily harm.

[22] The defence submits that any application of force by Mr. Belkhier was accidental and that her resultant injuries were not as a result of an assault. The defence relies upon the expert evidence wherein Dr. Kadar was not able to state whether or not the injuries resulted from an accident or an intentional infliction of force.

Purpose of Preliminary Inquiry

[23] Section 548(1) of the Criminal Code allows a judge conducting a preliminary inquiry to order the accused stand trial or that she or he be discharged. It states:

(1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[24] The primary purpose of a preliminary inquiry is to serve as a screening process, to ensure that trials only occur where there is sufficient evidence (R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 (S.C.C)).

Role/Function/Jurisdiction of Preliminary Inquiry Justice

[25] The presiding justice must accept as a fact any direct evidence proffered by the Crown. She may not evaluate the credibility or reliability of the source.

[26] The presiding justice must accept as a fact any circumstantial evidence proffered by the Crown. She may not evaluate the credibility or reliability of the source (R. v. Acuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.).

[27] Circumstantial evidence serves to support a conclusion. There is an inferential gap between the evidence proffered and the fact to be established. The presiding justice must weigh this evidence, to a limited degree, in order to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw (Arcuri, supra).

[28] If there is more than one inference to be drawn based on the evidence, the presiding justice must not choose which she prefers, but instead only the inferences that favour the Crown are to be considered (R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635).

[29] The inferences do not need to be compelling or easily drawn in order to be reasonable. The presiding justice must draw any reasonable inference in favour of the Crown, regardless of its strength (R. v. Munoz (2006), 205 C.C.C. (3d) 70 (ONSC)). Inferences must arise from the evidence and cannot be based on conjecture or speculation (Sazant, supra).

Test for Committal

[30] The test for committal is the same as the test applied by a trial judge considering a civil motion for non-suit or a defence motion for a directed verdict (United States v. Shepard, 1976 SCC 8, [1977] 2 S.C.R. 1067 (S.C.C.), R. v. Acuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.), R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 (S.C.C)).

[31] The presiding justice must consider the “whole of the evidence”, when determining whether the Crown has adduced sufficient evidence to meet the test (R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 (S.C.C.)).

[32] In R. v. Wilson, 2016 ONCA 235, Benotto J.A. stated:

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.

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.

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 drawn: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221.

Conclusion

[33] The mens rea for aggravated assault is the intentional, reckless or willfully blind application of force plus objective foresight of the risk of bodily harm. Accidental application of force is not sufficient. R. v. Williams, 2003 SCC 41 and R. v. Godin, 1994 SCC 97, [1994] 2 S.C.R. 484.

[34] The actus reus is established if the application of force wounds, maims, disfigures or endangers the life of the victim.

[35] I have considered the test for a case based upon circumstantial evidence, noted above:

[22] In R. v. Wilson, 2016 ONCA 235, Benotto J.A. stated:

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.

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.

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 drawn: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221.

[36] In R. v. Martin, 2010 NBCA 41, the New Brunswick Court of Appeal explored the difference between conjecture and inference, writing:

[36] … referred approvingly to the oft-quoted statement of Lord Macmillan, in his dissenting opinion, in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 (H.L.), at 45:

The dividing line between conjecture and inference is often a difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof….

The trial judge erred in law in inferring a direct contract from the fact that there had been substantial telephone contact in March and April 1992.

Once again, we must underscore the fundamental difference between conjecture and inference. The first is not a reliable fact-finding tool for the simple reason that it does not rest upon a compelling evidentiary foundation. As such, it has no place in judicial decision-making. The second is the product of a time-honoured fact-finding process. This process involves the extraction of a logical conclusion from cogent evidence. As such, it is unquestionably a reliable weapon in the judicial fact-finding arsenal.

[37] An inference that does not properly flow from the established fact is mere conjecture and speculation. R. v. Morrissey, [1995] O.J. No. 639, para. 52; R. v. Munoz, [2006] O.J. No 446.

[38] I have engaged in the permitted, but limited, weighing of the evidence to assess whether it is capable of supporting the inferences that the Crown asks the jury to draw. Specifically, the Crown submits that Scarlett’s head hitting the bathroom door frame and subsequent dropping was accidental but that the jury could find infer that there was some other intentional application of force. I find that this position requires conjecture or speculation and is not founded in any evidence. It is not a reasonable inference to be drawn.

[39] There is no evidence, direct or circumstantial, that supports the assertion that Mr. Belkhier applied intentional force at another moment.

[40] Both parties provided lengthy written submissions on the issue of committal. Both focused on the issue of accident. Neither addressed the issue of recklessness.

[41] Reckless is defined as:

The word "reckless" is defined in the Shorter Oxford English Dictionary as "Careless of the consequences of one's actions; heedless; lacking in prudence or caution"; Webster's Third New International Dictionary defines "reckless" as "Lacking in caution; deliberately courting danger; foolhardy; rash; Marked by a lack of caution; marked by a lack of foresight or consideration" R. v. Coleman, 1973 CarswellSask 71

In this same case the word "reckless" is defined as follows "reckless suggests an indifference to risk." The word "reckless" means: heedless of consequence, careless, thoughtless, and the word "dangerous" means: careless, hazardous. Larousse defines the word "dangerous" as something which involves danger, peril risk, inconvenience; and the word "rash" as loss of sense, contrary to good sense, extravagant. R. v. Vincent, 1942 CarswellQue 262

I suppose one could consult a variety of dictionaries and find differing meanings, some to the advantage and others to the disadvantage of an accused person.

Black's Law Dictionary, 1968, Revised 4th Edition, at page 1435, defines "reckless" to mean, amongst other things, "indifferent to consequences", and goes on to say in part: "According to circumstances, it may mean desperately heedless, wanton or wilful". R. v. Rolfe, 1980 CarswellOnt 3880

[42] The simplest definition of the term reckless is action without thinking or caring about the consequences of that action.

[43] Lily’s evidence is not subject to a credibility or reliability assessment at a preliminary hearing. It must be accepted. Her evidence establishes that Mr. Belkhier was carrying Scarlett over his shoulder without supporting her properly while on route to the bathroom. Unsupported, Scarlett was described as a ‘wobbly noodle’. She was only 5 months old at the time.

[44] Annie’s evidence was that on the way back from the bathroom, Mr. Belkhier was carrying Scarlett without supporting her properly. She was described as ‘wobbly’.

[45] Both of their testimony provides some evidence that a reasonably instructed jury could find that Mr. Belkhier was reckless in the manner in which he carried 5 month old Scarlett and that the risk of bodily harm was objectively foreseeable.

[46] The evidence of Dr. Kadar provides some evidence that a reasonably instructed jury could find that the injuries that resulted from the hitting of Scarlett’s head on the bathroom door frame and the fall to the floor immediately thereafter caused her traumatic brain injury and endangered her life.

[47] Finally, considering the totality of the evidence, I find that the cumulative effect supports committal.

[48] Mr. Belkhier will be committed to stand trial on the count of aggravated assault at the next court of competent jurisdiction.

Released: December 1, 2023. Signed: Justice Angela L. McLeod