Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 08 21 COURT FILE No.: 4810-998-22-30005129

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jing Wen SHI

Before: Justice S. Chapman

Trial Heard on: April 22-26 and 29, 2024 Reasons for Judgment released on: August 21, 2024

Counsel: R. Fried, Counsel for the Crown P. Ngan, Counsel for the accused Jing Wen SHI

Chapman J.:

Overview

[1] This is a sad, tragic case. When Ms. Shi was home alone, she gave birth to a full-term baby boy on February 24, 2022. Two hours later her boyfriend, Mr. Yu, came home and found Ms. Shi naked in an empty bathtub, surrounded by blood; the baby was in the toilet. He picked up the baby, placed a towel around him and put him on the bed in their bedroom. Then he returned to the bathroom and carried Ms. Shi to the bed as she was too weak to walk. He dressed her and called 911. The 911 operator told Mr. Yu to place the baby between Ms. Shi’s legs and that is what he did. EMS personnel arrived not long after that and found the baby still there, lightly covered with a towel, bluish in color and extremely cold. They immediately took steps to warm the baby, who was breathing and faintly crying. The baby was taken to the hospital and tragically died some four days later.

[2] As a result, Ms. Shi stands charged with failing to provide the necessities of life to her newborn baby, contrary to section 215(2)(a)(ii) of the Criminal Code. The Crown sought, and I granted, an application to amend count 2 in the information, and it now states as follows:

“On or about the 24th day of February in the year 2022 at the City of Toronto… did, being under a legal duty as a parent to provide necessaries of life for a child under the age of sixteen years, namely Baby Shi who was requiring medical attention and the protection from harm, that if not received would endanger the life of the child fail without lawful excuse to perform either duty, contrary to section 215, subsection (2), clause (a), paragraph (ii) of the Criminal Code.”

[3] The Crown takes the position that Ms. Shi knew she was pregnant and did not want the baby and so she knowingly and purposely left it in a toilet and never sought medical treatment. The defence take the position that Ms. Shi did not know she was pregnant until she was in labour and was weak, in shock and physically unable to exercise her duty of care to the newborn child.

[4] The issue is whether or not the Crown has proven beyond a reasonable doubt that Ms. Shi did, without lawful excuse, fail to provide the necessities in life, in particular by failing either to call 911 or remove the baby from the toilet following the birth. I find that it has not. I have a doubt as to whether or not Ms. Shi knew she was pregnant prior to going into labour. I also have a doubt as to whether she had the physical ability/capacity to exercise her duty of care to the child. Even if she did, I find that in all of the circumstances, what she did or did not do, does not amount to a marked departure from the standard of care in all of the circumstances.

Findings of Fact

Her Knowledge of the Pregnancy

[5] The Crown takes the position that Ms. Shi knew full well that she was pregnant prior to going into labour. Although this is not a fact the Crown must establish as a requisite ingredient of the offence, it provides important context in which to evaluate the subsequent events and actions of Ms. Shi.

[6] Having considered all of the evidence, I have a considerable doubt as to whether she knew she was pregnant. Most of the evidence points to her not knowing. The Crown asks the court to use its common sense and disbelieve her account of events, as provided in her statement to police.

[7] Ms. Shi states that she did not know she was pregnant until a time proximate to giving birth. She told the police, in a voluntary statement she willingly provided to them from the hospital the following day, that she had some bleeding a month earlier and thought she was menstruating. She had no morning sickness. Though no photographic or other evidence was adduced, I understand from the accused’s statement, and the boyfriend’s uncontradicted testimony, that in the weeks leading up to the birth, her abdomen was a little extended but in a way that they both chalked up to her putting on a little weight. She had absolutely no other symptoms. The day before she gave birth, she felt fine, was energetic and went grocery shopping.

[8] Ms. Shi, and her family, are refugees from China. At the time of these events, she was largely estranged from her parents. She had suffered from depression. She had no friends. She did not work outside of the home. She had a pet bunny that she took good care of. Mr. Yu did not know what level of education Ms. Shi had acquired. She did not speak English. She was very emotionally and otherwise dependent on Mr. Yu. I would note that in her statement to police she misstates her age, does not know the name of the address she lived in a year earlier, did not know her parent’s home address, did not know the name of a doctor to whom someone had once taken to, had not seen her parents in some time, was not sure what job her boyfriend worked at or where, couldn’t remember where she met her boyfriend just two years earlier, etc. I find her to be an unsophisticated and, in many respects, a vulnerable young woman.

[9] To be clear, her personal circumstances are not relevant to whether or not she is guilty of the offence charged, which involves a negligence based offence with an objective standard, as elaborated upon below. They are, however, relevant to whether or not she knew she was pregnant prior to February 24, 2022, which in turn explains why, at least initially, the birth was unattended by medical personnel. In her statement to police, she is consistent that she did not know she was pregnant.

[10] Further, Ms. Shi’s statement to police is largely corroborated by other evidence adduced in the Crown’s case, that suggest she did not know that she was pregnant. In particular, her boyfriend testified that he had some suspicions she was pregnant one week prior to the birth and raised this with her but she denied that she was pregnant. During the private text messages Ms. Shi and Mr. Yu exchanged during the course of the afternoon on the day of the birth, she questions whether she could be pregnant but again concludes that she is more likely experiencing abdominal pain for another reason, perhaps food poisoning.

[11] To be clear, Mr. Yu also testified that during the same conversation he asked her a week earlier if she was pregnant, and he purportedly told her to see a doctor. He testified that in response she either told him that she was not pregnant, or she told him that she had seen a doctor and was not pregnant. His testimony is somewhat ambiguous on this point. In any event, this assertion is self-serving on the witness’ part, given that he is the other parent of the now deceased child. Further, it took a number of questions from the Crown to finally elicit this answer. The details of the alleged conversation were vague. What doctor? Where? One would have thought the witness would have been able to provide more details about this conversation had it actually taken place. I am not persuaded that it did. There is certainly no other evidence whatsoever that Ms. Shi attended on a doctor and learned that she was pregnant. She told the police that she had not seen a doctor during the pandemic.

[12] Even if Mr. Yu were claiming that Ms. Shi had told him she had visited a doctor, he is not a very reliable witness. There were many things that he should have been able to recall that he was not able to recall. His answers to some questions didn’t make sense. For example, in answer to one of the Court’s questions, he suggested that Ms. Shi got refugee status in Canada as a result of giving birth, when in fact she and her family had come to Canada many years earlier. This is but one illustration of what he got wrong. I have little confidence in relying upon his testimony, particularly as it relates to this purported conversation.

[13] The Crown asks me to reject the evidence pointing to her lack of knowledge of the pregnancy based upon common sense. Afterall, it seems incredible to think that a woman would not know that she was pregnant prior to going into labour. No expert evidence was adduced on this point. However, the nurse from the ER and the pediatrician that attended to the baby both testified that they have not only heard of such a situation but have had personal experience dealing with cases of mothers who did not know they were pregnant until going into labour.

[14] Ms. Fisher, a registered nurse with some 20 years’ experience testified that she has had patients before that, at least according to them, didn’t know they were pregnant until they were in labour or sometimes in the late second or early third trimester. Further, Dr. J. Wiley, who attended to baby Shi in the hospital, testified in cross-examination that he has certainly seen so called “cryptic pregnancies” though he did not feel qualified to opine on the matter. So, it does happen. It is possible. I am not prepared to ignore all of the evidence suggesting that she did not know she was pregnant on the basis of any “common sense” assumption to the contrary.

[15] I have a doubt as to whether or not Ms. Shi knew she was pregnant prior to going into labour. So that then takes us to the events of the day in question.

The Events of the Day

[16] Ms. Shi told the police that on the morning of February 24th she started to feel unwell. She got up and had breakfast. She and Mr. Yu thought that maybe something she ate had not agreed with her. She ended up going back to bed and he left the home at around noon, leaving her alone. She made clear to him that she did not feel well. He said he would be back in the afternoon. He testified that he was reliant on a friend for a ride and that it was for that reason he was two hours later getting home than he had told her he would be.

[17] Ms. Shi and Mr. Yu had text exchanges during the course of the day. At 2:22 p.m. Ms. Shi initiates the following text exchange with Mr. Yu:

Ms. Shi: I’m so weak. I’ve been bleeding continuously today, but not at all normally. And it is more painful than last night. Mr. Yu: That will be a long time. Are you sure you can go to the hospital by then? Ms. Shi: That’s ok. I can bear the pain myself. I feel that it hurts because I’m pregnant. The family doctors house is under renovation so I can’t go. Mr. Yu: What about other places? Pregnant? Are you sure? Ms. Shi: Mind your own business, and I’ll take care of myself. Mr. Yu: Take care of yourself, and if you lie to me again, I really can’t accept it. Ms. Shi: I think I’m pregnant. I have stayed in the bathroom for a long time and can’t get out. Mr. Yu: Your feeling makes no sense. Ms. Shi: I can’t poop, I keep bleeding, and my stomach hurts. Mr. Yu: You must make sure. Ms. Shi: If I’m really pregnant, do you want it? Mr. Yu: You tell me if you want it or not. Your parents even don’t know me. Now you tell them you’re pregnant. Ms. Shi: My parents don’t care about me. Mr. Yu: Are you sure that they don’t care about you? You tell them you are pregnant. But you are not married. What’s your idea? And how long are you pregnant. Ms. Shi: Same as my cousin. And cousin’s wife too. Mr. Yu: I need to know the time. Don’t tell me someone else. I need to know how long you have been pregnant. Ms. Shi: I don’t know for how long I am pregnant. Mr. Yu: Go to the hospital when you have time. Ms. Shi: I don’t have the energy now. Mr. Yu: Your business. I need about two more hours before I get home. And… how long are you pregnant? I asked you before and what did you tell me? [text at 2:51 pm]

No response from Ms. Shi.

Mr. Yu: So what is the situation now? [at 3:06 p.m.]

No response from Ms. Shi.

Then at 3:17 Mr. Yu again texts Ms. Shi and asks:

Mr. Yu: No reply? Ms. Shi: In the bathroom.

[18] There is no further texts between them until later that evening, when Ms. Shi is in the hospital and Mr. Yu is at the apartment. At 7:54 p.m. he texts her and asks if he needs to go to the hospital and she tells him that she is afraid. Some of the texts were unexplained in evidence. For example, there is no explanation as to what her reference to her cousin was meant to convey. What they do seem to make clear is that Ms. Shi was alone, weak, and afraid. She was no longer using her phone after 3:17 p.m., even though she was obviously in distress. The baby was born at around 5:00 p.m.

Ms. Shi’s Statement to Police

[19] Ms. Shi cooperated with police and provided them with an audiotaped statement from the hospital the morning after giving birth. The Crown tendered that statement along with a transcript of its translation by a Mandarin interpreter. In it, she explains to the police what happened leading up to and immediately following the birth.

[20] Ms. Shi tells the officers that she did not know that she was pregnant. She had bled weeks earlier and thought she was menstruating. She had no morning sickness. She put on some weight, but thought she was just eating too much. Her boyfriend thought the same thing. She was not feeling well when she woke up that morning. She did not take any medication. There is no suggestion of her having ingested any alcohol or drugs. She told the police that she has a family doctor but has not seen that doctor due to the pandemic. She was not sure of the doctor’s name as somebody else had found that doctor for her, but she was able to provide a proximate location for the doctor’s office.

[21] The police asked her when she learned she was pregnant and she told them that her boyfriend had suspected it a few weeks earlier, but she did not think so as she didn’t have any of the usual signs, such as morning sickness or cravings. She told Mr. Yu that it was impossible that she was pregnant.

[22] At about 9 to 9:30 a.m. she was experiencing stomach pain and did not feel well, so she went back to bed. She had something to eat that morning and lay down in bed. Mr. Yu went out at about noon and then she was alone. After she lay in bed nothing really happened until around 4:30 pm at which point she felt the urge to go to the bathroom. She told the police that “At 5:00 p.m. I suddenly needed to use the washroom and then the baby came out. I was very scared at that moment”. She was able to get to the bathroom by leaning on the walls. Not until the child was born did she realize that she was pregnant. She was shocked and scared. She told the police that she was very frightened and did not know what to do. She was bleeding profusely. The pictures of the bathroom confirm this account.

[23] After the baby came out Ms. Shi was weak and fell to the bathroom floor where she lay for some time. She had no strength to move around. At one point she regained enough strength to crawl into the bathtub to wipe off the blood stains on her legs. The photographs of the bathroom show that the side of the tub is fairly low off the ground. Having pulled herself into the bathtub she was then too weak to move any further and just wanted to sleep. She forced herself to remain awake while she waited for her boyfriend to come home.

[24] The officer asked her “Why didn’t you get up and call somebody” and she responded:

At that time my cell phone was on the table and the bathtub was closest to me. So, at that time, I wanted to .. I saw that the blood stains already was dried up, so I wanted to wipe off the stains and then call my boyfriend, but I realized that, after cleaning the blood stains from my legs, I did not have the energy to crawl out of the bathtub.

[25] She heard the baby crying but was very frightened and didn’t have the physical energy to bring the baby out of the toilet. She clarified that her phone was by the sink, but she was not strong enough to reach for it. She was dizzy, exhausted, and weak. When asked what she thought would happen with the baby she told the police “I was very scared at that time about what would happen but .. this was my first experience with it, I didn’t know what to do.” She was frightened, losing blood, and wanting to just pass out. She was “fainting”.

[26] In the text message exchange at approximately 3:00 pm that afternoon she had asked Mr. Yu when he would be home, and he said in about two hours. However, he did not arrive home until closer to 7:00 p.m. When he arrived, he found Ms. Shi naked, lying in the tub, surrounded by blood. It would seem that he may have been the one to cut the umbilical cord, though this is by no means clear on the evidence. He then had to carry Ms. Shi out of the bathroom and place her on the bed. He also had to dress her because she was too weak to do it herself. He tended to the baby and called his boss who told him to call 911.

The Testimony of Emergency Personnel

[27] A number of firefighters and paramedics that attended at Ms. Shi’s apartment that day testified concerning her demeanour. The general consensus was that throughout their interactions with her she had a flat affect. She showed no emotion. Instead, she was seeking comfort from Mr. Yu who was standing next to her bed. Some of the witnesses testified that Ms. Shi showed no concern for the baby. It was observed by more than one witness that she Ms. Shi had a bewildered look on her face. A Captain from the fire department contrasted Ms. Shi’s response to the birth of a child with his own experience: “just from my own experience with my wife, as soon as our children were born, on the breast. Every other baby birth I’ve been to it was a big celebration. Parents were crying with joy.” In contrast, he described Ms. Shi as “bewildered, confused, no interest.” Captain Hopkins testified that Mr. Yu, the boyfriend, was the one who called 911 and who “did the right thing. He cut the umbilicus. And the baby was left to die, basically.”

[28] One of the paramedics testified that he has seen many people in shock, and they present in a myriad of ways. Given how individualized the response to shock is, he could not say whether she was experiencing it or not.

[29] One of the firefighters described the washroom as “…horrendous. There was blood everywhere. There was blood on the floor. There was blood on the wall. There was blood in and on the toilet. There was a ring of blood on the inside of the toilet.”

The Testimony of Mr. Yu

[30] Mr. Yu testified for the Crown. He is the current boyfriend of the accused and the father of Baby Shi. He is 24 years of age. He testified that he has been in a four year long relationship with Ms. Shi and that they were living together on February 24, 2022. He testified that he did not know that Ms. Shi was pregnant.

[31] The Crown sought to elicit from Mr. Yu his conversations with Ms. Shi concerning the possibility that she was pregnant. He provided dramatically inconsistent evidence on this point. He testified that he does not have a doctor and that he has never been to a doctor with Ms. Shi. The Crown asked whether he knew Ms. Shi was pregnant prior to giving birth. He testified that he was “suspicious” and “some period of time before this incident” he asked her if she was pregnant, and she told him “no”. He testified that he did ask her to go check in with a hospital and she said she would go. Mr. Yu was asked by the Crown if Ms. Shi ever told him that she had gone to the hospital, and he testified “no”. The Crown asked several follow up questions that answers to which left the distinct impression that she had not told him that she had gone to the doctor. Then Mr. Yu testified that she did say that she had gone to the hospital and that she was not pregnant. As for the timing of this conversation, it was at some point prior to the day she gave birth. Mr. Yu testified that he was not the one to cut the umbilical cord, contrary to the understanding of Captain Hopkins. There was no other evidence as to how the cord was severed.

The Legal Principles that Govern

[32] Ms. Shi is charged with the offence of failing to provide the necessaries of life, contrary to section 215 of the Criminal Code. That section provides that:

Section 215.

(1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) to provide the necessaries of life to their spouse or common-law partner; and

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason for detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and,

(ii) is unable to provide himself with necessaries of life.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty if

a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

b) with respect to that duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

[33] Section 215(2)(a)(ii) makes it an offence for a parent, who owes a duty to provide the necessaries of life to a child under 16, to fail to perform that duty, if the child is in destitute or necessitous circumstances. Count two of the information is particularized as Ms. Shi having failed to perform her duty to provide the necessaires of life to a child that was in need of medical attention or protection from harm. Failure to provide medical treatment can amount to “necessitous circumstances” and can therefore lead to liability under either of subparas. (2)(a)(i) or (ii): R. v. J.(S.) (2015), 2015 ONCA 97, 320 C.C.C. (3d) 524 (Ont. CA); leave to appeal to S.C.C. refused 2015 CarswellOnt 10364.

[34] In R v. C.O., 2022 ONCA 103, at para. 49, Doherty J.A. on behalf of the Court accepted that “protection of children from physical harm” is a necessary of life but that its meaning is situation specific. He explained that “[a] necessary is something which, if not provided by the parent, will result in harm to the child’s health or safety,” and that this “must include protection from risk of that harm if the section’s protective purpose is to be served” (at paras. 49 to 50) [emphasis in the original].

[35] In R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at paragraphs 66 and 67, the Supreme Court describes the elements of the offence in the following terms:

The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to section 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again, from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to case the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5, the marked departure standard is not applied at this point, since “nothing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).

The mens rea of failing to provide the necessaries of life will be established if it proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian, or family head in the same circumstances. The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law, which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” (R. v. Gosset, [1993] 2 S.C.R. 76, at p. 93). As Charron J. stated: “The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment” (Beatty, at para. 35). Thus, “penal negligence punishes a marked departure from an objectively reasonable standard of care” (R. v. Naglik, [1993] 3 S.C.R. 122, at p. 142 (emphasis in original)).

[36] Where the parents are charged for failing to obtain medical care for their child, the Crown was not required to prove that the child’s life would have been saved by medical treatment. The section criminalizes endangering life, not causing death: R. v. Stephan (2021), 2021 ABCA 82, 402 C.C.C. (3d) 73 (Alta C.A.), leave to appeal refused David Robert Stephan v. Her Majesty the Queen, 2022 Carswell Alta 1966 (S.C.C.), leave to appeal refused Collet Dawn Stephan v. Her Majesty the Queen, 2022 Carswell Alta 1968 (S.C.C.).

[37] The offence imposes liability on an objective basis. On a charge contrary to section (2)(a)(ii), the Crown must prove a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child: R. v. Naglik, [1993] 3 S.C.R. 122, 83 C.C.C. (3d) 526. The offence is premised on establishing an objective minimum standard of parenting from which the accused must have markedly departed to be found guilty. The fault component of section 215(2)(a)(i) consists of conduct which shows a marked departure from the conduct of a reasonable prudent parent in circumstances in which it was objectively foreseeable that the child was in “necessitous circumstances”, that is circumstances in which the child’s health or safety were at risk and the child was in need of protection: R. v. C.O., 2022 ONCA 103.

[38] The normal inference that a person who committed a manifestly dangerous act failed to direct their mind to the risk and the need to take care may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. Short of incapacity, personal factors are not relevant whether those factors might indicate, for example, either a lack of experience or a special experience. See Naglik.

[39] In R. v. Goforth, 2022 SCC 25, the Supreme Court of Canada considered the mens rea of the offence and what is meant by a marked departure from the conduct of a reasonably prudent person in the circumstances. The Court concluded that “the mens rea requirement for section 215 is established when the Crown proves that the accused’s conduct constitutes ‘a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child’”. The Supreme Court indicated that the “law is clear that personal characteristics of an accused, short of incapacity, are irrelevant in assessing objective mens rea”.

[40] The offence of failing to provide the necessaries of life is an unusual one in that it is a crime of inaction or omission. Liability is premised on a failure to act, where there is a duty to do so. While in some circumstances a marked departure may be established by a single act, inaction or an omission that is sustained for some time can of course more readily be accepted as making out a failure to provide the necessaries of life: R. v. B.H., 2023 ONCJ 502 at para. 58. As Pepall J.A. states in R. v. S.J. and S.J., 2015 ONCA 97 at para. 54, “[t]he duty is not one of perfection. Similarly, mere negligence does not suffice. Rather, the question is whether there has been a “marked departure”.

Application of the Legal Principles

Overview

[41] There can be no question, but that Ms. Shi owed a duty of care to the baby and that she failed in that duty thereby endangering the life of the child. The issue is whether or not the Crown has proven beyond a reasonable doubt that in failing to provide the necessaries of life to the baby, she showed a marked departure from the conduct of a reasonably prudent parent in the same circumstances.

[42] If the Crown has proven a marked departure from the standard of care beyond a reasonable doubt, then I must still consider whether or not Ms. Shi had a lawful excuse for failing to fulfil her duty. The onus of establishing a lawful excuse is on the accused: R. v. Tutton and Tutton (1985), 18 C.C.C. (3d) 328 (Ont.C.A.), aff’d , [1989] 1 S.C.R. 1392, 48 C.C.C. (3d) 129 (6:0). Most reverse onuses of this nature have been constitutionally challenged as an impermissible violation of section 7 and 11(d) of the Charter. There was no Charter application in this case and nor am I aware of any authority striking down as unconstitutional this particular reverse onus. Accordingly, I have proceeded on the basis that it is constitutionally sound.

[43] The original wording of count two in the information alleged that the breach of the duty flowed from the failure to provide medical attention to the child. The amended version of count 2 expands the scope of liability to include the failure of Ms. Shi to protect the child from harm.

Analysis

[44] Ms. Shi did not know she was pregnant until she was in labour. She gave birth at home in the bathroom, unattended by medical personnel. She was unprepared to give birth, gave birth alone and experienced a considerable level of shock, confusion, and distress. This was a crisis for the baby; it was also a crisis for Ms. Shi.

[45] After giving birth Ms. Shi slumped to the floor of the bathroom and was too weak to move. She collapsed from exhaustion – not surprisingly after giving birth. She told the police that she was “fainting”, which I take to mean coming in and out of consciousness. She was bleeding profusely. She had just gone through the trauma of giving birth to a full-term baby. She lay in the bathtub for 2 hours unable to move. When her boyfriend got home it would seem that the umbilical cord was still attached to the baby it. It maybe that he was the one to cut it. Mr. Yu found Ms. Shi too weak to move so he carried her to the bedroom. He then dressed her as she was unable to do so herself.

[46] At the end of the day, the issue is whether or not the Crown has proven beyond a reasonable doubt that Ms. Shi did, without lawful excuse, fail to provide the necessities in life, in particular by failing to either call 911 or remove the baby from the toilet in the minutes following the birth. I find that it has not. I have a doubt as to whether or not Ms. Shi had the physical ability to exercise her duty of care to the child.

[47] A great deal of the Crown’s case was based upon various emergency personnel’s observations of Ms. Shi’s demeanour. They consistently described her as having a “flat effect”. There were also a number of comments about the state of cleanliness of the apartment and her seemingly un-motherly response to the newborn.

[48] Demeanour evidence can be a very unreliable indicator of state of mind. I find it to be particularly problematic in this case. The emergency personnel were understandably very distressed about the situation they encountered that day. Their testimony at times was very emotional. Many of the emergency workers concluded that her flat affect meant that Ms. Shi did not care about the baby. Maybe they are right. But I’m not sure of that. It seems very unfair to compare, as they did, Ms. Shi’s demeanor to that of their female partners when they gave birth to their children, presumably surrounded by family and support. They have seen women crying with joy over the birth of their child, but in very different circumstances in which Ms. Shi found herself. At least one paramedic allowed for the fact that, in his experience, shock can manifest itself in a myriad of ways including a flat effect.

[49] I find the evidence of Ms. Shi’s demeanour to be judgment laden and an unfair barometer of her guilt in all of the circumstances. She had just given birth alone and unexpectedly. She was scared and confused and, as some of the EMS workers testified, bewildered. It cannot be assumed based on her demeanor that she was an uncaring mother. The evidence is also consistent with her being in shock having just experienced the trauma of a crisis delivery.

[50] Giving birth can be very traumatic and clearly it was in this case. She told the police she was terrified. She was bleeding profusely. She essentially fell to the bathroom floor. She had a small amount of energy which she wrongly judged would permit her to both clean the blood off of her body and then call her boyfriend for help. Turns out she didn’t have the energy to do either. It is this miscalculation that is at the heart of the Crown’s case. I find that the decision she made at this time, well ill-conceived, did not amount to a marked departure of the standard of care a reasonable parent would or could exercise in the circumstances. Once she was in the tub, she no longer had the physical ability to do anything further. This is a lawful excuse for failing to fulfil her duty of care to the child. On either basis she is not guilty of the crime alleged.

Conclusion

[51] I find Ms. Shi not guilty.

Released: August 21, 2024 Signed: Justice S. Chapman