COURT FILE NO.: CRIMJ(P) 2147/12

DATE: 2013 06 19

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. B. McGuire and C. Valarezo, for the Applicant

Applicant

• and -

DANIEL STREETER

M. Moon, for the Respondent

Respondent

HEARD: April 2, 2013

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] Tyson Garbutt lived for only 92 days.

[2] Following a lengthy criminal investigation, the Respondent was charged with the second degree murder of his son.

[3] At the conclusion of the preliminary inquiry, the presiding justice declined to commit the Respondent to trial for murder. Daniel Streeter was committed to stand trial for manslaughter and criminal negligence causing death.

[4] The Crown seeks an order of certiorari, submitting that the court’s failure to commit for second degree murder is founded upon jurisdictional error.

FACTUAL CIRCUMSTANCES

Background

[5] After Krista Garbutt and the Respondent dated for three or four months, she became pregnant. The pregnancy was unplanned. Krista was seventeen (17) years of age.

[6] On June 29, 2010, Krista gave birth to twins, Ava and Tyson. The babies were born about five weeks prematurely and remained in hospital for about ten days. Krista was eighteen (18) years of age, and the Respondent was then nineteen (19).

[7] When the children were discharged from the hospital, the Respondent moved in with Krista who was then living in her mother’s house in Brampton on Jackman Drive. Both had dropped out of school.

[8] About one week prior to the twins’ birth, the parents learned the gender of their babies. According to Krista’s evidence at the preliminary inquiry, the Respondent was disappointed to learn that the twins would not both be girls. He had been adamant about wanting to have two daughters after a dream that that would be his future. On Krista’s evidence, the Respondent was “upset” and “devastated”.

The Public Nurse Visitation

[9] Deborah Hann-Dollimount is a public health nurse in the employee of the Region of Peel. Ms. Hann-Dollimount is involved in the “Healthy Babies, Healthy Child Program” in which nurses make contact with new mothers in the community. The referral is triggered by a permission form signed at the birth-hospital by the parents.

[10] On August 16, 2010, about a month after the release of the twins from hospital, the nurse conducted a house visit with Krista and the Respondent. The visit lasted from 1:15 to 3:00 p.m. Ms. Hann-Dollimount considers that her attendance is ordinarily directed toward the mother.

[11] The visit was held in the livingroom of the Jackman Drive residence. Krista was seated on one couch holding Tyson. The Respondent was on a second couch and Ava was in a crib/playpen in the same room.

[12] To Ms. Hann-Dollimount’s recall, the Respondent was present for most of the discussion, sitting and listening. The witness at no time “excluded” the Respondent in her interview. On a couple of occasions, he went elsewhere in the room to check on Ava. On one occasion, he went to the kitchen, and one or two times, he went to the backyard. He was never gone longer than five minutes.

[13] Ms. Hann-Dollimount informed the court that she does some teaching throughout the assessment. She completes a standard questionnaire, the ‘Parent and Child Assessment’ (IDA). In respect of the IDA, ‘Assessment and Intervention’ section, there is a discussion of safety issues including safe handling of a newborn child and shaken baby syndrome (SBS). On the witness’ evidence, she always takes “a few minutes to go over what shaken baby syndrome is”, including the mechanism of the brain shaking in the skull causing bleeding and brain damage. Ms. Hann-Dollimount was unable to positively say that the Respondent was present when she discussed and demonstrated respecting SBS.

[14] Toward the end of the visit, Ms. Hann-Dollimount described to the parents literature she was leaving with them including a wall calendar called ‘After Your Baby Is Born’. The calendar includes text which the nurse recalled reading aloud:

[S]haken baby syndrome: Listening to the baby cry for long periods of time can be frustrating for parents and caregivers. If you feel like you might lose control, place your child safely in the crib. Leave the baby’s room for a few minutes, take a break. Shaking your baby can lead to neck injury, brain injury and blindness. Things to try: Learn to read your baby’s cues and respond before he or she starts crying. Go to your baby as soon as he starts crying. Have someone you trust look after your baby to give you a break. Talk to someone about your feelings.

The witness testified with respect to the Respondent, “I believe he was sitting on the sofa” at the time, although she was not completely certain.

[15] Krista Garbutt testified at the preliminary inquiry that nurses and CAS representatives came to her residence from time to time. Krista recalled that:

It was discussed that you should never shake the baby, always hold the baby’s head, never drop the baby, always hold the baby with care.

The witness further acknowledged that literature and pamphlets “in this regard” were left at the home, some “specifically on shaken baby”. Krista was “pretty sure” that the Respondent was aware of the SBS and its consequences from “discussing or having talks with Daniel”.

The Respondent’s Treatment of Tyson

[16] On any view of the evidence, Krista and the Respondent were immature and ill-prepared for parenting. On Krista’s evidence, taking care of the twins was, to a degree, a shared experience, although the Respondent did more of the daytime bottle feedings.

[17] According to Krista, whereas Ava never cried, Tyson was colicky and harder to deal with. His feedings were more time-consuming.

[18] Krista described the Respondent as “angry a lot” and subject to “depression modes”.

[19] Krista Garbutt testified that the Respondent favoured Ava. He was more aggressive and rough with Tyson. The witness described instances of what she observed. On occasion, the Respondent would bring Tyson to his chest quickly without supporting his head. Often, the Respondent picked Tyson up only by the torso or under the armpits. As “a regular joke”, the Respondent held Tyson squeezing his torso to make him fart or burp. If it wasn’t working, the Respondent would squeeze harder. The witness had also seen the Respondent drop Tyson into his crib/playpen from a height of three or four feet.

[20] Krista also informed the preliminary inquiry court that, a couple of times a week, the Respondent would become angry or frustrated, sometimes when Tyson was crying, and use a “shaking motion” while holding Tyson in front of him. There was no head support – Tyson’s head “would fling back” during this motion. At this time, although Tyson obviously couldn’t speak or understand, the Respondent would speak to the baby: “What’s going on?”; “Talk to me”; “Why are you crying?”

[21] Krista testified that the Respondent’s roughness did not have the effect of calming Tyson down.

[22] As Faith Kennedy’s father had a relationship with Krista’s mother, Faith was a friend of the Garbutt family. Faith was aged ten (10) years when Tyson was alive. Faith’s observations of the Respondent’s interaction with Tyson appear to have been at the Jackman residence.

[23] In her videotaped statement to the police (including demonstrations), adopted at trial pursuant to section 715.1 of the Criminal Code, Faith provided this information as to her direct observations:

(1) the Respondent didn’t want to bond, or spend time, with Tyson – he treated Tyson “quite mean”

(2) “quite often” the Respondent would become frustrated when dealing with his son

(3) the Respondent would “grab” Tyson but didn’t support his head until after he was lifted

(4) the Respondent, as he huffed and puffed in frustration, would stomp down the stairs, sometimes holding Tyson with only one hand, without the baby’s head being supported – Tyson’s “head’s going up and down”; “like bouncing like a ball sort of thing”; with the baby’s head sometimes going “like really far back”

(5) the Respondent picked Tyson up out of the crib with no head support – “his neck was like hanging back”

(6) more than once, the Respondent dropped Tyson into the crib/playpen from a height of 6 to 16 inches and walked away – “he does hurt the baby quite often by like dropping him far, like from a distance” – a couple of times, Faith heard “like a big bang like off like his head”

(7) on one occasion, after feeding Tyson, the Respondent, who Faith believed was really angry at Krista at the time, either dropped or “threw” Tyson onto the couch – Tyson hit his head “pretty hard” – there was “a bang and like a thump too after” as the baby “hit his head like off the corner” – Tyson then had a “weird looking face” as his mouth dropped open and his eyes squinted but he did not cry

(8) Tyson had a car seat which also strapped into a stroller – on an occasion when the Respondent was outside with the baby, he “flicked the baby’s head backwards”, also described as “really hard” causing the baby’s neck to go “around … like a circle” – Tyson’s head “hit … pretty hard … and then his head sort of bounced back” against the back of the car seat causing the child to cry – the Respondent was then frustrated and yelled at Tyson and shook the car seat causing the baby’s head to begin “flopping back and forth”

(9) the Respondent would become frustrated and annoyed when Tyson cried – sometimes he would then yell at Tyson – Faith saw the Respondent shake Tyson about 30 times, 10 of which were when the baby was in his car seat

(10) when the Respondent shook Tyson, it would last about 15 to 30 seconds but not continuously, as there was a stop-and-start motion – the baby’s head kept “going up and down” and “forwards and backwards” and sometimes Faith thought she heard a little sound coming from Tyson’s neck

(11) when the Respondent shook Tyson he would speak to the baby, saying for example:

Shh.

Stop crying

I do not like you.

Why does your mom keep like making me do this stuff?

Why can’t you stop?

Why won’t you stop?

Why aren’t you stopping?

Why can’t you be like Ava, more quiet?

Why’d she have to have a twin?

Don’t cry. You’re annoying me.

(12) on one occasion, Faith saw the Respondent drop Tyson onto the change table with a “big thump” from a height of more than 6 to 8 inches.

[24] In her videotaped statement, and in the remainder of her preliminary evidence, Faith stated that the Respondent abused Tyson when Krista was not present. The witness did not observe Krista mistreating Tyson. According to Faith, the Respondent would argue with Krista when she wanted his help with Tyson. He would say that he wanted to hold Ava, not Tyson.

[25] Toward the end of August 2010, the family moved in with the Respondent’s mother at 24 Flowertown Court in Brampton.

[26] Ashley Garbutt, Krista’s sister, attended a baby shower at this home in late August. While there, Ashley observed the Respondent changing Tyson’s diaper. When Tyson began to cry, the Respondent picked the baby up “underneath his armpits where his ribs are”. Apparently frustrated, he “shook” the infant, asking him what was wrong with him. There was no head support as Tyson’s head went back “quite a bit” – Tyson’s head was “shaking back and forth”.

[27] Ashley testified that because what she had seen scared her, she told her sister about the incident. Krista said she would speak to the Respondent.

[28] Krista testified that she spoke to the Respondent multiple times about his treatment of Tyson. She related to him that people were bringing their concerns to her. The Respondent promised to work on things, to be a better father and to take more care. Krista testified that she spoke to the Respondent about taking anger management classes. He replied that he didn’t need them but agreed that he would. He did not follow through on the promise.

[29] Krista testified that she at no point physically mistreated her son.

September 18 – Tyson Stops Breathing

[30] Krista Garbutt testified that at night on September 18, 2010, she was awakened by the Respondent saying that Tyson had stopped breathing. She found the baby “very limp” and gasping for air. The Respondent claimed that after feeding Tyson, as he was changing him, the baby threw up. He then flipped Tyson over in an effort to have the vomit exit his mouth.

[31] Stephanie Arthurs, a tenant resident in the basement of the Flowertown home, testified that in the late evening of September 18, she heard Krista and the Respondent talking for about two minutes before there was a knock at her door. The Respondent was holding Tyson who was obviously in distress – the baby was pale, unresponsive, gasping, with very shallow breathing and “he looked lifeless”.

[32] Ms. Arthurs took Tyson and gave the Respondent her phone to call 911. Krista made the call. In the witness’ view, the Respondent appeared “very calm … not panicked” and “really unfazed by it”.

[33] By the time the ambulance arrived, Tyson appeared to be normal. While Krista still wanted the baby to be checked at the hospital, it seemed to her that the Respondent “didn’t care either way”. When she urged the Respondent to go to the hospital he refused as he was drunk, saying “leave it up to the police”. Ms. Arthurs could smell alcohol on the Respondent. She recalled that the Respondent did not want to go in the ambulance because he was under the influence and did not want to get into trouble.

[34] Ms. Arthurs testified that before Tyson was placed in the ambulance she observed a red mark, about one inch in size, on the bone in the middle of the back of the baby’s skull.

[35] Krista went to the hospital with Tyson. After the baby was medically examined, though not x-rayed, he was not admitted to the hospital. The medical diagnosis was acid reflux. Tyson had previously been diagnosed with Gastro-oesophageal reflux disease – a chronic condition involving aspiration of stomach contents causing inflammation of the oesophagus and potentially resulting in stomach contents in the lungs. Tyson had been prescribed medication for this chronic disorder by his own paediatrician.

[36] Export testimony at the preliminary inquiry suggested that, in the absence of external indicia of injury, and in turn the taking of an x-ray or CT scan, medical staff treating Tyson at the emergency department would not become aware of the serious internal injuries the baby would subsequently be found to have had at the time of his September 18th hospital attendance including fractured ribs and subdural haemorrhaging in the brain.

[37] Krista returned home with the child. In her view, when she asked the Respondent what happened with Tyson, there was never “a full discussion” about it.

[38] Krista testified that in the days following September 18, Tyson’s condition was not normal. He did not smile. He just sat there or “just kind of laid there”. The baby was quiet and lethargic. Expert testimony suggested that these symptoms pointed in a neurological direction, probably a combination of subdural haemorrhaging irritating the brain as well as injury to the brain itself.

September 22 – Tyson Again Stops Breathing

[39] Stephanie Arthurs recalled that on Wednesday, September 22, 2010, early in the morning, she heard Krista and the Respondent arguing. She then heard Krista leave the house. Krista testified that that morning she went out with her mother to register for school, leaving the Respondent alone with the twins.

[40] Ms. Arthurs informed the preliminary inquiry judge that later in the morning she went out to the store, returning in five to seven minutes at which point emergency personnel were in attendance.

[41] When Krista returned home at about 11:50 a.m., the Respondent ran out of the house saying, “Call an ambulance”. He said that the same thing that had happened to Tyson the prior Friday had again occurred and that the baby had stopped breathing. Krista’s mother phoned 911. When Krista saw Tyson, he was pale, turning blue and gasping for air.

[42] Emergency services personnel responded including fire, police and two ambulances. A number of these responders attending the VSA (Vital Signs Absent) call testified at the preliminary inquiry, collectively describing Tyson as in cardiac arrest without a pulse and incapable of breathing on his own. The baby was limp and very pale, also described as a grayish colour. Resuscitation efforts were unsuccessful at the scene or on route to the Brampton Civic Hospital. Krista was described by Ken Teal, a firefighter, as upset. Mark Harlick, an advanced care paramedic, observed a male person sitting on the porch stairs of the home.

[43] Mr. Harlick, Mr. Teal, and Danielle Gingrich, another advanced care paramedic, testified that they saw no bruising, red marks or observable injuries on Tyson’s body. As Ms. Gingrich made efforts to intubate Tyson’s airway, she observed clear frothy sputum. She informed the court that this was not vomit but bubbly saliva seen in cardiac arrest patients. Paramedical records did not record any obstruction of the baby’s airway.

[44] At the hospital, at 12:06 p.m., with Tyson having been VSA for sixteen or seventeen minutes, he was resuscitated and stabilized in the emergency department. Given the baby’s grave condition, a decision was made to transfer the patient to the Hospital For Sick Children (HFSC) in Toronto. As advanced care paramedic Harlick was preparing to transfer Tyson, he observed that the baby’s fontanels, sutures that fuse together in the skull three to six months after birth, appeared abnormal. They were swollen, bulging and a “dis-regularity”.

[45] Krista Garbutt testified that on September 22 while waiting at the HFSC, she learned from Bruce Thompson, a Peel Regional Police Service (PRPS) officer, that medical staff had discovered Tyson to have “suspicious” injuries. She then spoke to the Respondent who had also spoken to Thompson:

He didn’t know much. He, he wasn’t saying much and what he was saying is, basically is, I don’t know what happened, it’s up to the police to find out. I don’t want to talk about this. And he was pretty upset with me that night, because I had actually broken up with him, so after that, he just -- he wanted nothing to do with me. He didn’t want to co-operate with me, went separate at that point …

[46] According to Krista, she told the Respondent that if it was him who was responsible, he needed to admit to it. He replied, “it wasn’t me”. Krista recalled that Ashley, who had come to the hospital, also confronted the Respondent, at which point he said words to the effect of: “I didn’t shake him enough for it to be like this”, and, “I know I, I’ve done that, but not to that point”.

[47] Ashley Garbutt testified that at the HFSC the Respondent variously said that he had not done anything, and, that he had shaken Tyson and, in her words, “He told me he may have done something that may have hurt the baby”. Krista recalled that the Respondent admitted to her sister that he had shaken the baby when she challenged him that she had seen him do it.

[48] Krista testified that, while still at the hospital, the Respondent at one point said that he was “going to admit it … that it was him” but, after speaking to his mother on the phone, he had a change of mind. Ashley Garbutt testified that she overheard the Respondent, during the phonecall with his mother, say, “I did it, I did it”. Krista testified that she never was able to get “straight answers” from the Respondent as to what he did to Tyson.

[49] PRPS Constable Robert Hackenbrook testified that when he attended the HFSC to speak to the Respondent, he found him to be troublingly calm to the point of indifference.

[50] Tyson’s medical condition did not improve. There was massive and irreversible brain damage. The child was pronounced dead on September 28th, 2010 after his parents consented to removal of the life support systems.

The Medical Evidence

[51] Dr. Emma Cory, a staff paediatrician in the SCAN (Suspected Child Abuse and Neglect Program) unit at the HFSC, took charge of the SCAN consultation with the ICU (Intensive Care Unit) doctors overseeing Tyson’s treatment while he remained on life support systems.

[52] Dr. Cory gathered up Tyson’s past medical records and assessed the clinical aspects of the baby’s injuries including possible causes. This process of differential diagnoses was designed to identify most probable causes while attempting to exclude less likely causes. Following Tyson’s death, Dr. Cory had the benefit of reports from Dr. Jeffrey Tanguay, a pathologist, and Dr. David Ramsay, a neurologist.

[53] Dr. Cory’s summary evaluation from her May 8, 2012 report, explained in greater detail at the preliminary inquiry, concluded that:

In summary, Tyson Garbutt-Streeter was documented to have recent and older subdural haemorrhage, optic nerve sheath haemorrhages, right and left multi layer retinal haemorrhages, hypoxic brain injury, non-occlusive sinus venous thrombosis, and 20 old rib fractures at 11 weeks of age, six weeks corrected. Medical evaluation did not identify an underlying medical disorder to explain the subdural haemorrhages, the retinal haemorrhages and the multiple rib fractures in Tyson. Birth injury can be excluded as a potential cause of the recent subdural haemorrhage and extensive retinal haemorrhages documented in Tyson. Birth injury can rarely be associated with rib fractures, but can be excluded as the sole cause of the 20 rib fractures seen in Tyson. The most likely cause of the subdural haemorrhages and retinal haemorrhages in Tyson is traumatic injury. The rib fractures are indicative of past impact or compression of the chest of significant force. And the pathologist review identified the old rib fractures in Tyson are highly suspicious of inflicted injury. And overall, the findings of recent and older subdural haemorrhage, extensive multi-layer retinal haemorrhages and 20 old rib fractures, as seen in Tyson, are highly suspicious for inflicted injury.

[54] Although Tyson was a “late pre-term infant”, he had no pre-disposing conditions capable of contributing to the injuries discovered at the time of the baby’s September 22nd admission to hospital, including no bone or bleeding disorders, or metabolic condition or pre-disposition to clotting.

[55] The duration of Tyson’s cardiac arrest on September 22 caused him to suffer hypoxic ischemic encephalopathy which is brain damage caused by denial of blood and oxygen to the brain. Dr. Ramsay testified that seventeen or eighteen minutes of denial of blood and oxygen to the brain can occasion “substantial” brain injury. This, together with the other injuries to the child’s brain, led Dr. Cory to say that the infant was “neurologically devastated and [had] no meaningful chance of recovery”. At the preliminary inquiry, the medical experts were extensively questioned as to the cause of the cardiac arrest.

[56] In his evidence, Dr. Tanguay described the mechanism of shaking as a cause of cardiac arrest in infants. This is a “forceful shaking”, not “non-trivial”, in which the baby’s head moves rapidly back and forth injuring the upper cervical spinal cord and tearing small blood vessels in the brain causing the heart to stop beating. What follows is evolving brain damage and swelling given the resulting inter-cranial pressure. According to the witness, in Tyson’s case, “the whole brain is damaged”.

[57] A September 23rd CT scan of Tyson’s skull revealed that he had no skull fracture. There was no bruising of the skull. There were, however, both old and acute/recent subdural haemorrhages which, in Dr. Cory’s opinion, had all occurred in the prior seven to ten days. Subdural haemorrhages are veins bleeding or leaking blood between the surface of the brain and the thick membrane (dura) lining the skull. This alone, in Dr. Cory’s view, was “highly suspicious for inflicted injury” which is the direct application of force to the head by the actions of another person. Dr. Tanguay considered that while the majority of these bilateral intracranial subdural hematomas were recent fresh bleeds, there was evidence of organizing/healing ones as well. Dr. Ramsay’s view of this extensive bleeding was that it revealed some evidence of prior head injury, such as a shaking-related injury, which could have happened days or longer before the September 22nd admission to hospital.

[58] Imaging of Tyson’s skull revealed venous thrombosis (suspected clotting) most likely caused by head injury in Dr. Cory’s view. This occurs when thrombosed cervical veins rupture into the subdural space.

[59] There was injury to the retina located at the back of each of Tyson’s eyes. There were retinal haemorrhages, too many to count, multilayered and all the way to the periphery of the eyes. In Dr. Cory’s view, the retinal haemorrhages were “extensive” and “severe”. Direct impact to the eye, in her view, would be “very unusual” as a cause for the injury, though such injury is most commonly identified in the context of inflicted injury such as “shaking as a mechanism”. Dr. Tanguay considered that the retinal hemorrhages constituted “moderate” bleeding in both eyes which is not an uncommon finding in shaking cases. Dr. Ramsay described retinal haemorrhaging as “a very customary” finding in baby-shaking cases. Dr. Cory also noted a haemorrhage to the optic nerve sheath.

[60] Dr. Cory noted that Tyson, eleven weeks old at admission (six weeks old by corrected date given his premature birth), would be incapable of generating, on his own, sufficient mobility to self-injure. In addition, on the subject of accidental injury as a cause, it seemed unlikely in the absence of a fracture or bruising of the skull, no other external signs of injury, and no reports of a fall or impact to the child’s head such as might be seen in a high-speed motor vehicle accident.

[61] Dr. Cory concluded that shaking of Tyson involving acceleration/deceleration forces was the most likely cause of the baby’s injuries. Asked whether a quick pick-up of a child without head support could be a cause of Tyson’s head injury, Dr. Cory testified, “I would think that a very – – an unusual cause of a brain injury”. While the amount of force engaged by the shaking cannot be quantified, the damage would involve a “significant force application”. Shaking involves the brain essentially ricocheting back and forth in the skull along with related rotational forces.

[62] Dr. Ramsay testified that:

The second issue is a question of shaking and by far the prevailing opinion is that the discovery of a triad, the triad being the presence of retinal haemorrhages, subdural haemorrhages and a swollen brain related to hypoxic ischemic injury and other processes constitutes evidence of shaking of the infant.

[63] Tyson was found to have anterior and posterior rib fractures – 20 in all. Some were older and in a state of healing. Rib fractures are painful. Accident was not seen as a likely cause because a “very significant” trauma or force would be required to cause Tyson’s injuries. Dr. Cory considered that “the most likely cause” of the baby’s fractures was “[i]nflicted trauma”, for example compressive or squeezing force applied to a baby’s chest typical of an adult’s hands. Dr. Tanguay testified that considering the pattern, extent and distribution of the rib fractures they were caused by “non-accidental” inflicted force. He stated that given the state of the reparative process, in the absence of any immediate acute rib fracture, that the “injuries occurred at different time periods” in the prior days or weeks. The pathologist agreed that the child’s rib injuries could have been the result of someone forcefully squeezing his torso.

[64] Dr. Cory opined that Tyson suffered multiple injury events – “the child suffered a significant degree of injury within the period of his fairly short life”. Dr. Tanguay testified that “what really happened here can’t rely on pathological evidence standing alone”. Similarly, Dr. Ramsay stated that medical review of the case cannot “prove” shaking.

The Undercover Operation

[65] Constable J. Bellaire of the Windsor Police Service engaged in an undercover police operation under the direction of the PRPS. The Respondent did not admit to Bellaire about shaking Tyson. He did, however, say that after the baby vomited, he had possibly caused damage to Tyson’s vertebrae or neck when he suddenly picked or jerked the child up to him without supporting his head.

REASONS FOR (NON) COMMITTAL

[66] The preliminary inquiry court declined to commit the Respondent to trial on a charge of second degree murder. Committing on charges of manslaughter and criminal negligence causing death, Justice Duncan characterized the committal determination as “a difficult and agonizing decision”, one that was “a very troubling decision” causing him “a lot of anguish”.

[67] In his reasons for judgment, the preliminary inquiry judge described the limitations of the scope of his committal authority:

(1) the court was to determine whether there was sufficient evidence to commit for second degree murder

(2) the court was not to make findings of fact or to engage in conventional weighing of evidence.

[68] However, because the prosecution’s case relied upon circumstantial evidence:

(1) in considering the whole of the evidence, the court was not itself to draw inferences (“[i]t is relatively easy to decide what inference I would draw or not draw. It is much more difficult to decide what some other person or 12 such people might conclude”)

(2) with circumstantial evidence, limited weighing is permissible in “determining whether it is capable of supporting an inference of the fact in issue” – is the “inculpatory” inference “available”? – if the evidence has no probative tendency in favour of an inculpatory conclusion, selection of that conclusion “is not inference but is arbitrary choice or guesswork”

(3) while this process engages consideration of inculpatory and exculpatory circumstances, since a jury may reject exculpatory evidence at trial, it plays “little role in the committal determination”

(4) “there are potentially numerous evidentiary combinations that could be found by a jury and differing inferences that could be found”

(5) “[a]s long as the inference urged by the Crown is within the field of inferences that could be drawn, committal must follow”.

[69] On the whole of the evidence, a jury would be entitled to find that:

(1) the Respondent caused Tyson’s rib fractures

(2) Tyson died as a consequence of an inflicted blow or shaking

(3) on September 22, 2010, the Respondent had the exclusive opportunity to inflict the fatal injury to the victim.

[70] To commit for murder, the prosecution must adduce some evidence of intention as an element of the offence:

(1) the Crown relied upon the intent described in s. 229(a)(ii) of the Code – an intention on the part of the accused to cause bodily harm that he knew was likely to result in death being reckless whether death ensued or not

(2) this secondary intent for murder requires the Crown to adduce some evidence that the accused intended to cause bodily harm of such a grave and serious nature that he foresaw that, as a consequence, death would be “certain or substantially certain to result”

(3) it can “be argued that it is always open to a jury to infer that a person intended to do what he in fact did and intended to bring about what in fact he brought about” – “[i]f the defendant did something that caused deadly bodily harm, why couldn’t a jury conclude that he intended to do so?” – “[w]hile there is attractive simplicity to this reasoning, and it may be a sound approach in some cases”, it cannot “be applied without limit” – in assessing whether the circumstantial evidence can establish the s. 229(a)(ii) intent, the act of the accused is determined first – “the act must be determined by inference – and then the issue of intent addressed.”

[71] As to the evidence relating to intention:

(1) the direct evidence was “scant” – there was “no evidence of animus” or expression of a desire to harm or to kill Tyson – the Respondent was simply “disappoint[ed] in the twins not both being girls”

(2) the Respondent’s rough handling of Tyson was “done at times in frustration and anger and at times with stupid playfulness” but “[n]one of this evidence bears directly on the date in question. Nor is it very illuminating on the question of intent” – “frustration and anger … could point in either direction”

(3) the Respondent’s description to the undercover officer and to family members of quickly picking Tyson up on September 22 is “an implicit denial of having any intent to murder”

(4) in assessing what act of the Respondent on September 22, 2010 caused Tyson’s death, the court raised three possibilities – as to the first two possibilities, they did not support the existence of any evidence of murderous intent and the third possibility was speculation:

(1) the Respondent, in anger and frustration, picked the baby up quickly bringing him to his chest causing Tyson’s head to snap back and forward, or

(2) the Respondent, in anger and frustration, shook Tyson as he had on other occasions thereby causing his death, or

(3) the Respondent committed an assault of a significantly more serious kind than the systemic abuse previously observed.

(5) as to the latter possibility, while “arguably it would be open to a jury to reason that … whatever happened on September 22 must have been more serious” than the prior and “habitual” acts of shaking, dropping and squeezing of Tyson, because the medical evidence is consistent with death being caused by the type of acts described by Faith Kennedy and others, “there would be no evidentiary basis to infer a more serious assault” – it would be “speculation for a jury to find a more serious assault was inflicted on September 22” – put differently, “[t]he inference regarding intent must be based on or capped by the acts that this evidence discloses” – the court footnoted this conclusion as follows:

This is not to suggest that the type of assault that would be open to the jury to find would have been of a minor nature. To the contrary the medical evidence opined that it would be very significant force and injuries such as those seen here are not seen in normal falls and accidents but usually associated with violent car crashes. On the other hand the child was very young small and fragile and a jury might conclude that a large young man might inflict great damage with what to him at least would be minor force. This would be an important issue for the jury to consider.

(6) as to Tyson’s survival of “all other instances of abuse”, including what immediately preceded his hospital attendance on September 18 and almost immediate discharge with “no more serious diagnosis than acid reflux”, this would not have served to put the Respondent on notice of a risk to the child resulting from his actions – this evidence “supported an inference against a finding of murderous intent for the later assault” or “the evidence of prior abuse must be regarded at worst as inferentially neutral on the issue of the defendant’s intent on September 22nd”.

SUBMISSIONS OF THE PARTIES

The Prosecution

[72] The Applicant Crown submitted that the failure to commit the Respondent to trial on a charge of second degree murder was the result of one or more jurisdictional errors including the following:

(1) Significantly, 37 days before Tyson’s September 22nd admission to hospital, the Respondent was forewarned by the public health nurse that shaking an infant could cause serious bodily harm as a consequence. This evidence was critical in assessing the Respondent’s knowledge and state of mind. The court’s failure to refer to this evidence demonstrates that the court committed an error of jurisdiction by failing to consider the entirety of the evidence.

(2) The preliminary inquiry judge committed further jurisdictional error by misapprehending the medical evidence, failing to consider the whole of the evidence or alternatively by choosing from competing inferences, when he “capped” the degree of violence a trier could infer had occurred on September 22.

(3) Submitted failure of the court to consider the evidence of the Respondent’s course of mistreatment of Tyson, including the circumstances surrounding the child’s September 18th hospital attendance, as some evidence of animus and in turn of s. 229(a)(ii) intention, amounted to reversible jurisdictional error.

(4) The court further committed jurisdictional error when it considered, in piecemeal fashion, whether there was some evidence of an intention for murder.

The Respondent

[73] On behalf of the Respondent, Mr. Moon submitted that the preliminary inquiry judge’s decision not to commit on a charge of murder demonstrated no jurisdictional error. Any error, though none is conceded, is limited to error of law not jurisdictional error. The Respondent submitted that:

(1) The court’s reasons, recognizing that the Respondent had been “forewarned”, implicitly took into account the testimony of the public health nurse. Alternatively, if the reasons cannot reasonably be interpreted as including a reference to the witness’ evidence, it cannot be said that her evidence was not considered by the court.

(2) The preliminary inquiry judge thoroughly canvassed the evidence led by the prosecution to secure a committal for trial on the murder allegation. The Crown now seeks to re-run the preliminary inquiry. The court reasonably concluded that the evidence was not capable of supporting an inference, without impermissible speculation, that the Respondent committed an assault upon Tyson of a significantly more serious kind on September 22. Accordingly, the court did not weigh the evidence or choose between reasonable inferences.

(3) Further, in reviewing the entirety of the circumstantial evidence, any decision of the court as to whether or not there existed sufficient evidence to draw a particular inference cannot be characterized as jurisdictional error – for example, finding that Tyson’s discharge from hospital on September 18 with only an acid reflux diagnosis was inferentially neutral. The court fully considered this event and the evidence of prior abuse in refusing to commit for murder – the court’s view of the insufficiency of the evidence is not reviewable as jurisdictional error.

(4) The court properly considered the whole of the evidence bearing on the question of intention for murder without improper compartmentalizing within its analysis.

ANALYSIS

[74] The Crown submitted that the evidence at the preliminary inquiry established that the Respondent never wanted a son, that he disliked Tyson, that he engaged in systemic physical abuse of the infant knowing it was capable of causing serious bodily harm, that he did so despite the fact that it did not calm Tyson down or stop his crying which the Respondent found so irritating, and that his actions caused bodily harm and ultimately Tyson’s death.

[75] As I understand it, the prosecution maintains that the evidence of the Respondent’s alleged course of mistreatment of Tyson is relevant to rebutting any defence of accident, to identity of the abuser, the nature of the Respondent’s relationship with the baby, and the Respondent’s hostility toward the infant and in turn motive and intention. The Respondent wanted to go out with his friends or to be left alone at the computer and not be saddled with looking after Tyson or nagged by Krista to help with this second child. It is said that simmering resentment toward Tyson continued to build with escalations in the physical violence on September 18 and 22, 2010.

[76] As to intention to murder, the prosecution relied upon what it described as evidence of the Respondent’s animus toward the child, and his ongoing punitive mistreatment of Tyson despite warnings of consequential risk of harm to the child, to argue before the preliminary inquiry judge that there was inferentially some evidence that the Respondent shook Tyson on September 22, 2010 intending to cause him bodily harm while being reckless whether death ensued or not.

[77] There was in fact evidence of the Respondent’s animus toward Tyson – evidence of a dislike for the infant in speech and treatment including the following:

(1) the Respondent was devastated that he did not have two daughters – he did not want a son

(2) the Respondent is reported to have said to Tyson, who was incapable of understanding what he was saying, such things as, “I do not like you”, and, “Why’d she have to have a twin?”

(3) the Respondent yelled at Tyson

(4) the Respondent exhibited differential treatment toward his daughter and the deceased – he was observably more aggressive with Tyson to the point of being physically abusive

(5) the Respondent’s roughness with Tyson did not have the effect of stopping his crying.

[78] Quite apart from the common sense proposition that any normal person would understand that shaking a premature baby less than three months old, without its head being supported, risks serious bodily harm, the evidence at the preliminary inquiry supported the existence of knowledge on the part of the Respondent that risks were inherent in such conduct:

(1) the public health nurse twice described the dangers of baby-shaking in her August 15, 2010 home visit

(2) literature was available in the home to the Respondent describing SBS

(3) Krista had discussions with the Respondent about SBS and rough treatment of Tyson.

[79] Reduced to its essentials, the Applicant/Crown maintains that the preliminary inquiry judge erred in failing to consider the whole of the evidence, impermissibly chose between competing inferences by “capping” the population of inferences reasonably available to a jury, and, erred in concluding that there was no evidence of an intention to murder. The Respondent answers that the court properly considered the entirety of the relevant evidence, determined within its authority and without preference what inferences would be available for jurors to draw, and, without error concluded that there was no evidence of an intention to murder.

[80] There was no dispute between the parties that Justice Duncan correctly expressed the general legal principles constraining the exercise of his statutory discretion to commit for sufficient evidence of the crime of second degree murder. The focus of the disagreement is whether the court misapplied those principles to the evidentiary record and, if so, whether any identifiable error amounted to jurisdictional error.

[81] Having summarized the scope of the court’s committal power under Part XVIII of the Code and the permissible degree of intervention of certiorari in review of a committal decision in R. v. Foster, [2008] O.J. No. 827 (S.C.J.), at para. 31, those principles need not be repeated here.

[82] The jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge is very limited: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.

[83] As to inferential reasoning from circumstantial evidence available to establish an essential element of the charged offence:

(1) the preliminary inquiry court may weigh the evidence to the limited extent of determining what reasonable inferences are available from the whole of the relevant evidence: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.), at p. 35

(2) in some cases of circumstantial evidence, the evidentiary record, fairly interpreted, will admit of a range of reasonable inferences capable of being drawn by a reasonable trier of fact at trial: R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at para. 35

(3) further, as stated in R. v. Dwyer, [2013 ONCA 368](ht