ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 10880
Date: 2013/02/06

BETWEEN:

Her Majesty the Queen

K. Bellehumeur, for the Crown Attorney

• and -

R.D.

C. Ayre & Pamela Munn, for the accused

Heard: November 19, 20, 21, 22, 26, 27, 28, 29, 30, December 3, 4, 5, 10, 2012

RADY J.: (Orally)

REASONS FOR DECISION

Introduction

[1] R.D. is charged with one count of assault and one count of manslaughter with respect to his infant son, K.G.R.D.. That K.G.R.D. was given this unfortunate name was only a foreshadowing of the abuse that was to come.

[2] K.G.R.D. was only six weeks old when he was subjected to an assault that was of sufficient severity that he went into cardio-respiratory arrest. Although he was resuscitated, his injuries were so severe that his prognosis was terribly grim. In due course, his mother, T.R., accepted medical advice and life support was removed. K.G.R.D. died on August 27, 2010, three and one-half weeks after being injured. He was just over two months old.

[3] During the post-mortem examination, K.G.R.D. was found to have sustained at least two earlier brain injuries, which were healing at the time of the final and fatal insult.

[4] The Crown’s case against the accused is entirely circumstantial.

[5] In order to find the accused guilty, I must be satisfied that his guilt is the only reasonable inference from the evidence considered as a whole. On this issue, I quote from the Ontario Court of Appeal decision in R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 (C.A.):

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.

[6] In order to find the accused guilty of assault, Crown counsel must prove beyond a reasonable doubt that R.D. intentionally applied force to K.G.R.D.. No element of consent arises.

[7] In order to find him guilty of manslaughter, Crown counsel must prove beyond a reasonable doubt that R.D. caused K.G.R.D.’ death and that he caused his death unlawfully. The Crown must prove that the accused had the mens rea required for the underlying unlawful act and objective foreseeability of the risk of bodily harm.

The Evidence

[8] I turn first to the undisputed or uncontentious evidence, starting with the medical evidence. Doctors Helleman, Warren, Tweedie and Ramsay testified. Dr. Helleman is a doctor who works in the paediatric emergency room of Children’s Hospital of Western Ontario. Dr. Warren is the medical director of the child abuse service and a paediatric specialist at Children’s Hospital of Western Ontario. Doctors Tweedie and Ramsay are both pathologists with an interest in forensic pathology and a specialization in anatomical pathology and neuropathology respectively.

[9] Dr. Helleman testified about her physical observations of K.G.R.D. when he was brought to the emergency department by the first responders. Dr. Warren testified with respect to his involvement in the case. He reviews all severe trauma cases; he was requested to attend the case by physicians involved in K.G.R.D.’ care; and he liaised with other services, for example, the Children’s Aid Society, the police and court services. Dr. Tweedie gave evidence respecting his post mortem examination of K.G.R.D.. Dr. Ramsay spoke of his examination of K.G.R.D.’ brain and spinal cord. Their reports were filed and admitted by the defence for the truth of their contents.

[10] Dr. Helleman’s emergency record shows, and she testified, that the ambulance arrived at hospital at 12 minutes after midnight on August 3, 2010. She recorded a brief history. K.G.R.D. had been found vital signs absent. Paramedics were noted to have found a heart rate but he was not breathing. I will return to the observations of the first responders shortly. He was ventilated with bag and mask. K.G.R.D.’ temperature was 34.6˚ which was cool for a warm August night. His fontanelle was noted to be bulging and tense and his pupils non-responsive. K.G.R.D. passed some stool. All of these were signs of a baby in distress with likely brain injury. Dr. Helleman noted some bruising around K.G.R.D.’ ankles and a blue linear bruise on his back. Exhibit 1C, Tab 1, p. 2 is a photograph of K.G.R.D.’ upper back and head. No bruising on the scalp is evident but there is discolouration suggestive of bruising on his back near the spine.

[11] Dr. Warrren presented a PowerPoint slide show on head injuries in general and then images with respect to K.G.R.D.. Dr. Warren testified that K.G.R.D.’ temperature at 34.6˚ was significant because a normal temperature would be 37˚. The reduced temperature on a warm summer night is suggestive that the infant lacked the neurologic ability to control his temperature. The bulging and tense fontanelle indicated increased intracranial pressure. The constricted pupils indicated neurologic impairment.

[12] K.G.R.D. had a CT scan and some fluid was removed from around the brain to help reduce intracranial pressure, a procedure that was repeated. K.G.R.D. was noted to have missing corneal and gag reflexes, indicative of brain stem dysfunction. He developed a mixed picture of posturing, which meant the cerebral hemispheres and cerebellum were not working properly.

[13] K.G.R.D. was found to have “very dramatic” retinal hemorrhages in the left eye, in multiple different layers of the retina out to the ova, consistent with an inflicted injury. It was very significant that the hemorrhages were out to the periphery of the fundus. Retinal hemorrhages caused by medical conditions are usually only in small areas of the eye – the optic nerve or macula. In this case, the number and extent were indicative of a rotational type of injury in the back of the eye. Medical personnel ruled out any underlying metabolic, haemotological or cardiac explanation for K.G.R.D.’ presentation. There were imaging studies undertaken that showed earlier and resolving injuries to the brain.

[14] Dr. Warren was questioned about the timing of the injuries. It is difficult to pinpoint when the earlier injuries occurred based on the imaging and other studies. Medical science is not yet precise enough. Nevertheless, Dr. Warren did provide some important evidence on timing. He testified that a child who has had a cardiac arrest cannot be resuscitated if the arrest has been prolonged beyond eight to ten minutes.

[15] Dr. Warren offered this opinion on the cause of the findings:

A. The mechanism that we’ve identified in these findings is that this child had a series of shaking or acceleration-deceleration head injuries over the course of his young life. The imaging studies that we had identified there were three areas that were distant in location, and a period distinct in time course where such events had occurred. The most acute episode was fresh bleeding that occurred in the occipital area of the brain. There appeared to be some swelling in the back of the head, that acute episode in relation to trauma led to a respiratory arrest and a subsequent cardiac arrest, and all those series of events led to the summation of the brain injuries that led to this child’s demise…

A. We have absolutely no history of any events in this child’s life that would have been in relation to an accidental injury. The type of forces that are involved in producing this type of injury are not the forces that are involved in an accidental type of injury. We do not have any mechanism accidentally that would explain the findings in this child…

A. The amount of force that is required to do this is a short period of very violent shaking or rotation of the head that occurs, such that an individual should recognize that what is happening to the child is likely to lead to injury for the child.

[16] He said a child would not act normally after an injury and then suddenly have respiratory arrest. Put another way a child would not be feeding, crying, paying attention to the world, interacting with individuals following an injury and then have a cardio-respiratory arrest.

[17] Dr. Tweedie testified about his findings following his post-mortem examination. He found no scalp bruising or skull fractures. There were small amounts of thin, brown fluid in the calvarium and small amounts of subdural blood clot in several places. At the time of autopsy, there was no injury to the skull to provide evidence of blunt force impact to the head. However, given K.G.R.D.’ prolonged stay in hospital, there was a possibility of such injuries healing and, therefore, it could not be pathologically excluded. Based on his observations and relying on Dr. Ramsay’s opinion, Dr. Tweedie concluded that the cause of K.G.R.D.’ death was traumatic head injury. I pause here to note that Dr. Helleman made no observation of injuries consistent with blunt force impact.

[18] Dr. Ramsay testified about his post-mortem findings following a neuropathology autopsy.

[19] Dr. Ramsay made note of the following findings:

1. bilateral large organizing subdural haematomas;
2. retinal hemorrhages with bilateral siderosis of the perioptic nerve sheaths and retinal;
3. solitary small right parietal cortical contusion;
4. severe remote hypoxic-ischemic encephalopathy; and
5. scattered multifocal small dorsal spinal subdural hematomas.

[20] The findings of retinal hemorrhages, optic nerve sheath hemorrhages and subdural hemorrhages suggested an inflicted head injury. Although the degree of force required to inflict these injuries is difficult to quantify, Dr. Ramsay considered that the force would be readily recognizable as potentially harmful and as he said in his report “outside the normal day-to-day experience of an infant and his caregivers.” In a fatal case, he said that such a forcible head injury would lead to an almost immediate loss of consciousness.

[21] Dr. Ramsay testified that as a result, K.G.R.D. would not have cried as he normally would and he would not regain consciousness. K.G.R.D. was found by first responders to be in cardio-respiratory arrest, which caused irreversible hypoxic-ischaemic brain and spinal cord injury, which can result from an inflicted head injury.

[22] Because there was no clinical evidence of bruising or skull fracture, Dr. Ramsay considered other benign explanations for K.G.R.D.’ presentation and injuries. As I understand his evidence, he concluded that those other explanations were unlikely.

[23] As a result, he said that his neuropathological findings suggested that K.G.R.D. was subjected to a fatal head injury that led to subdural, retinal and perioptic nerve sheath hemorrhages, a protracted cardio-respiratory arrest and severe hypoxic-ischemic encephalomyelopathy. The nature of the head injury could not be determined.

[24] Therefore, the following conclusions can be drawn from the evidence of the doctors. From their evidence, we know for certain that K.G.R.D.’ death was caused by trauma to the head, which was not accidental. In other words, it was inflicted upon him by someone else. The head trauma was likely caused by either a combination of a forceful shake and impact with a soft surface or a forceful shake alone.

[25] According to Dr. Warren, the shaking would have been of short duration – no longer than 20 to 30 seconds because an individual cannot sustain the shaking movement for longer than that. But it involves very rapid movement of the head which rotates in many directions. The shaking would have been of such severity that the person doing it would have known it to be dangerous, according to both Dr. Warren and Dr. Ramsay.

[26] Turning then to the evidence of the first responders, we know that the Emergency Medical Service recorded its arrival at 32 Barberry Court at 11:55 p.m. and resuscitation efforts began almost immediately. Firefighter Tricia Young was the first person to arrive on scene followed by her partner, Aaron Bakie, and the captain. She described K.G.R.D. as lying on a sofa. He was still, an ashen blue-grey colour and cold to the touch. She listened for breathing and a pulse and could locate neither. She started chest compressions while firefighter Bakie prepared to ready an airway. It was a challenge and on the first attempt, K.G.R.D.’ chest did not rise. They tried again. Ms. Young was advised by her captain that paramedics had arrived. She carried the baby out toward the waiting ambulance and passed K.G.R.D. to an awaiting paramedic, Mark Wiston. She said that she had not been able to detect a pulse during the time K.G.R.D. was in her care.

[27] Mr. Wistan testified that when he received the baby, compressions were being administered but oxygen was not yet being given. He handed K.G.R.D. to his partner, L.T. Jimson. Mr. Jimson assessed K.G.R.D.. He was able to pick up a sinus rhythm on the monitor but K.G.R.D. was still not breathing. An interosseous line was inserted. Attempts were made to intubate K.G.R.D. but unsuccessfully. Consequently, he was ventilated using a bag valve mask. Paramedics were able to get chest rises when they were ventilating K.G.R.D. in this fashion. They departed for hospital.

[28] Therefore, with this background and based on Dr. Warren’s testimony, the window of opportunity to harm K.G.R.D. was relatively small, probably from 11:43 p.m. or 11:45 p.m. to 11:55 p.m. Otherwise, K.G.R.D. could not have been revived. Put another way, the shaking incident must have occurred in approximately the 8 to 10 minutes prior to 11:55 p.m. and after K.G.R.D. was last heard crying. The neighbours at 34 Barberry Court, Felicia Lynch testified, as did Richard Lynch and Carrie Cornell testified, all reluctantly I might add. They were very careful to avoid saying anything that they perceived to be harmful or disadvantageous to the accused.

[29] In any event, they testified that they heard K.G.R.D. crying that night and that it stopped between 10 and 30 minutes before the accused came to their door asking for a phone. Ms. Lynch said K.G.R.D. stopped crying 10 to 15 minutes before the accused came and asked for a phone. Mr. Lynch said it was about twenty minutes. Ms. Cornell thought it was about one half hour. The assault, therefore, must have occurred between 11:25 p.m. and 11:55 p.m. and likely closer to 11:55 p.m. because of the fact that K.G.R.D. was revived.

[30] I pause here to note that the defence did not take issue with the medical evidence that K.G.R.D. was subjected to a traumatic head injury that led to his later death.

[31] The issue is who did it? There are only three possibilities: an unknown third party; T.R. or the accused.

[32] The third party possibility can be disposed of quickly. The defence does not press it with any vigour.

[33] There is absolutely no evidence that K.G.R.D. was harmed by any of the first responders or while in hospital. The evidence is that the only persons in the home at the relevant time were the accused, T.R. and T.R.’s two daughters, Mia and Justice, then aged five and three. Neither of the little girls had the strength or coordination to administer a lethal shaking, according to Dr. Warren’s testimony.

[34] Furthermore, Tyler Kelly said that when he was at 32 Barberry, Mia and Justice were upstairs sleeping. Ms. Lynch testified that the girls were asleep and that she had to awaken them to bring them to her house after K.G.R.D. was taken in the ambulance.

[35] T.R. testified that she went to sleep after feeding K.G.R.D. that night and only the accused and the children were at home. When she was awakened by the accused, no one else was present.

[36] Tyler Kelly said he left at 9:30 or 10:00 p.m. and no one else was present except the girls, K.G.R.D., T.R. and the accused. His evidence respecting timing was corroborated by his mother. Ms. Lynch, Mr. Lynch and Ms. Cornell testified that they were outside smoking for a time before the emergency responders arrived and they said that they saw no one coming or going from 32 Barberry Court during that time. In contrast, Garrett Foseid was at 32 Barberry Court twice on August 2, 2010, the first time in the morning to buy pot and the second time, he said, around 10 p.m. again to buy pot. He described T.R. as a bit sick or off. He thought he bought pot from her that evening and he did not think other adults were present. However, he was only fifty percent sure of timing and thirty percent sure that the accused was not there.

[37] Importantly, when the accused interacted with others that morning and later that day, including Trevor Lowe and Pat Caruana, he did not mention the presence of a third party nor is there such a reference in the many, many text messages subsequently passing between T.R. and him. When speaking with Mr. Lowe and Mr. Caruana, the accused said simply that he did not know what had happened to K.G.R.D..

[38] There was some exploration in the evidence about whether Michelle Sturgeon could have been responsible. There was evidence that Ms. Sturgeon stayed with T.R. and the accused in July 2010 and that she passed out on one occasion while caring for K.G.R.D.. Ms. Lynch testified about how she intervened in K.G.R.D.’ care after Ms. Sturgeon had passed out or fell asleep because she was intoxicated. There is no evidence that Ms. Sturgeon dropped the baby as T.R. had, at one point, suspected. Again, as I understand the medical evidence, K.G.R.D.’ injuries were not consistent with a fall or having been dropped because there was no sign of blunt force trauma. In any event, Ms. Sturgeon was not present in the household that night and certainly not during the critical window of opportunity.

[39] I turn then to T.R.. There is much about her background that is deeply troubling. She has had many challenges in her life but she was very forthright at trial in admitting her past mistakes, her wrongdoings and shortcomings. She has a criminal record for theft under, domestic assault and breach of court orders.

[40] She was apprehended as a very young child by the Children’s Aid Society, ultimately was made a Crown ward and was adopted by the R.s. Unfortunately, the adoption broke down when T.R. was a young teenager and she and her adoptive mother could not get along. T.R. was willful and would not abide by the rules of the house, a personality characteristic that seems to have persisted through her life.

[41] She reunited with her biological mother and discovered that smoking crack was an activity they enjoyed together. T.R. became a caregiver to her younger half-siblings and her mother introduced her to an older man who would father Mia and Justice. He was abusive to her.

[42] T.R. struggled with her addiction issues and some mental health issues. She had been sexually abused as a child by a family member. She testified that she stopped using drugs while she was pregnant with the girls but she returned to them after their births. In November 2008, the girls were apprehended by the Children’s Aid Society and removed from her care, she says at her request, because of her escalating problems. She went to the Centre of Hope where she met the accused.

[43] To her credit, T.R. worked hard to overcome her addiction and personal issues and by November 2009, custody of the girls was restored to her. She sought counselling, she attended courses and cooperated with the Children’s Aid Society. Ms. Innes and T.R. both testified in this regard.

[44] Unfortunately, however, T.R. was still resistant to rules. She became involved with the accused and they began to live together in approximately May of 2009. The Children’s Aid Society did not want the accused to be in her home because of charges in Manitoba and because he refused a police check. She was not compliant and she and the accused took steps to deceive the Society. From her perspective, the accused was good to her children and posed no risk to them. She believed him when he told her that the information from the Society respecting his past was untrue. She considered that some things documented in her own Children’s Aid Society file were not true. She felt that she was in a superior position to assess whether he was a suitable partner.

[45] In the late fall of 2009, T.R. became pregnant with K.G.R.D.. K.G.R.D. was born on June 21, 2010. The CAS came to the hospital and told her that the accused was to be supervised when he was seeing K.G.R.D.. She said that there was only one supervised access visit and T.R. described the accused as awesome with K.G.R.D. and good at caring for him. She said the accused thought it was going to be easy to have a child.

[46] However, she described K.G.R.D. as a fussy baby who was difficult to settle. He sometimes cried for two or three hours. She said Michelle Sturgeon was a big help to her in comforting K.G.R.D.. This evidence stands in contrast to most of the neighbours who testified that K.G.R.D. was a happy baby. I accept T.R.’s evidence because as his mother and primary caregiver, she would be in the best position to assess his personality.

[47] She also testified that the accused’s mother came to visit in early July for one week. She was a big help with the children. After she left, T.R. said things went downhill. The accused was mean and they fought.

[48] T.R. testified about her condition on August 2, 2010. She said she was “pill sick” because she was in withdrawal and slept for a good portion of the day. She said she fed the girls their dinner and then fed K.G.R.D. who she thought was getting sick because he was wakeful, fussy and not drinking his usual amount of formula. She fed him again at bedtime after the girls had gone to bed and she had told them probably in profane language to settle. She put K.G.R.D. in his swing and she fell asleep on the sofa.

[49] Tyler Kelly testified that T.R. was dope sick and asleep on the couch in the living room. Tyler Cull also testified that when he was at 32 Barberry Court at least twice that day, T.R. was dope sick and asleep on the couch.

[50] Mr. Caruana testified that the accused told him he had fed the baby, set him down and left. When he returned, K.G.R.D. was blue. He told Mr. Caruana that T.R. was asleep upstairs at the time.

[51] Ms. Sturgeon testified that the accused called her on the evening of August 2, 2010 and he told her that T.R. was upstairs sleeping. She was unsure of the time of the call.

[52] T.R. testified that at some point the accused woke her, was yelling at her, holding K.G.R.D. in his arms and saying he was not breathing.

[53] K.G.R.D. was described as grey and not moving. She yelled at the accused: “What the fuck did you do?” He replied: “Nothing,” and “What did you do?” She told him to get a phone, which he retrieved from next door. He dialed 911 and T.R. spoke to the operator. She heard sirens shortly after and the accused left their residence.

[54] T.R. denied harming her baby. The question is how one tests that evidence for its truthfulness. In my opinion, there are several pieces of evidence that bolster the credibility of T.R.’s denial.

[55] Ms. Cornell testified that she heard T.R. phone the accused from the hospital in the early morning hours following K.G.R.D.’ admission. She heard T.R. ask the accused if he had hurt K.G.R.D..

[56] Similarly, Mr. Caruana testified that he overheard a call made from the hospital while he was at Ms. Lynch’s home and T.R. said words to the effect that she hoped the accused had not done anything to the baby.

[57] These overheard conversations do not reflect the words of someone who caused the baby’s injuries unless, of course, they were designed to deflect attention from herself. However, I am satisfied that is not the case here. T.R. does not strike me as someone so cleverly calculating. Moreover, the subsequent text messages passing between the accused and her belie such a conclusion. Those messages reflect a young woman who is struggling to understand what has happened. And while on the subject of the text messages, there are several that support the conclusion that T.R. did not harm K.G.R.D..

[58] At 23:43:42 on August 22, 2010, the accused wrote:

I don’t know what you want to hear. You cant feel guilty unless you did something wrong and we both know you didnt.

[59] On August 24, 2010 at 00:24:04, he texted:

I answered you 3 times. Feel like a tool? My son is dying and I cant even be there. We know who the fuck up is. Don’t kid yourself. We know whos fault this is. We know whos not there. We know whos not doing anything to help. We know who the falldown is. And I cant say is say sorry enough for ruining your life. Nevermind we. Everyone knows. Truthfully I have a hard time seeing why you even talk to me. I love you though.

[60] At no time did the accused accuse T.R. of harming K.G.R.D., except perhaps during their exchange when K.G.R.D. was first found unresponsive, and T.R. asked the accused what he had done. He said “nothing” and “what did you do?” He did not blame T.R. when speaking with Mr. Lowe and Mr. Caruana nor in any of the text messages passing between them.

[61] T.R. admitted in cross-examination that she has punched holes in walls although she said she has no temper problems. She said if she found herself in a stressful situation, she would take a time out, remove herself from the situation, calm down and then return to deal with it.

[62] It must be acknowledged that T.R. is capable of deceit. She and the accused deceived the Children’s Aid Society about where the accused was living. And T.R. told the authorities in the hours after K.G.R.D. was injured that the accused was not present in the home that night.

[63] She was not truthful about how K.G.R.D. was found to be unresponsive. However, T.R. offered an explanation for her untruthfulness. She panicked, fearing that if she disclosed that the accused was there, the Children’s Aid Society would apprehend her children. She was also protecting the accused. She testified that he had asked her not to say he was there. Once it became clear that the Society was going to intervene, it was not long before she approached the authorities to set the record straight.

[64] There were some minor inconsistencies between her testimony at trial and at the preliminary hearing but they were explained by T.R.. For example, there was conflicting evidence about where the girls were that day – at home or at daycare or day camp. T.R. explained that she doubted her own memory at times and relied on others to say where the girls were when she testified at the preliminary hearing.

[65] Her conduct during the weeks in August leading up to K.G.R.D.’ death is consistent with someone who is attempting to process what has happened; to piece together the events and an explanation for them.

[66] It seems that at first T.R. could not or would not believe that the accused might be responsible. She continued to speak to him; she saw him on several occasions before he left London; and she continued to text him and participated in sexting. But as time passed, she seems to have come to a different view and ultimately passed on information that permitted the authorities to determine the accused’s whereabouts and arrest him. Poignantly, she says she still loves the accused even though he has been charged with manslaughter.

[67] T.R. made the agonizing decision to have life support removed from K.G.R.D.. She arranged for a baptism and a final visitation. She stayed with him until the end. In my view, all of this evidence demonstrates that T.R. did not inflict the injuries on her son.

[68] That leads to the third possibility and that is whether the Crown has proven beyond a reasonable doubt that the accused inflicted the injuries on K.G.R.D. that led to his death.

[69] T.R. said that on August 2, 2010 she and the accused were stressed out having three children. K.G.R.D. was a fussy baby who cried a lot every day. The girls had problems with head lice. The couple was arguing and T.R. did not think the accused was being helpful with K.G.R.D.. She said that sometimes the accused told K.G.R.D. to shut the fuck up but she did not see him physically inappropriate.

[70] Sara Gregory, a neighbor who lived two units from 32 Barberry, testified. She was familiar with T.R. and the accused but she was not part of their social group, nor the neighbourhood’s drug sub-culture. She said that she heard sirens on August 2, 2010 as the rescue vehicles came up Cleveland Avenue. She looked out her kitchen window and saw the accused, who she recognized, along with Mr. Lynch and a third person who was probably a woman. They were about 20 feet away from her.

[71] She heard the accused say the words “he” and “broken neck”. She remembered those words because they seemed important in the context of what was happening at the time. She later learned that K.G.R.D. was in the hospital and that he had been abused. She considered that the accused must have been referring to K.G.R.D. when he said “he” because the other children in the home were girls.

[72] Ms. Gregory’s evidence was not shaken in cross-examination. She acknowledged that she had never had a face-to-face conversation with the accused nor had she been introduced to him. However, she had seen T.R. and the accused smoking marijuana outside their home from time-to-time. She recognized his bandana and clothing. She saw his face.

[73] Ms. Gregory was a credible and reliable witness. She had no motive to fabricate her testimony. She had good reason to recall the words spoken given her concern about why the emergency vehicles were there. There was nothing impairing her ability to see and hear the interaction.

[74] Clearly, the accused must have known that K.G.R.D. had been handled in a way that could have caused his neck to be broken. That, however, does not prove that he was responsible, so it is necessary to review further evidence.

[75] Trevor Lowe testified that the accused came to his door within minutes after he heard the sirens. He said that the accused told him there was something wrong with his baby but he did not know what. Mr. Lowe went to 32 Barberry to investigate and when he returned home, the accused was still there. The accused said he wanted to go to the hospital but that he could not right now. He was crying and had his hands on his face.

[76] Mr. Lowe was another reluctant witness. He was evasive, vague and very careful not to say anything that he perceived might be negative about the accused. That is why the following evidence is quite interesting. In examination-in-chief, he testified that he suggested that the accused get some counsel. He described the accused as looking scared. In cross-examination, he said he suggested that the accused speak to a lawyer. This strikes me as a strange suggestion. I do not believe Mr. Lowe was asked if he knew whether the accused was supposed to be residing at 32 Barberry but it seems to me that he would only recommend legal advice because he knew the accused was not to be OR because he was aware that the accused had done something wrong.

[77] As I say, Mr. Lowe was a reluctant witness and I had the distinct impression that he knew far more than he was prepared to say. I had the same impression about many of the witnesses who are or were friends of the accused, including Ms. Lynch, Mr. Lynch and Ms. Daigle to whom I will refer later. Similarly, Tyler Kelly was asked about how the accused was with K.G.R.D.. His response was telling. He said that the accused took care of his baby but later “I’m not going to be the one to say he did not”. Mr. Cull was very emotional in the witness box and needed time to compose himself. He was clearly very stressed by the experience.

[78] According to Mr. Caruana, the accused and he spoke in the early morning hours of August 3, 2010 after the emergency vehicles had arrived. He described the accused as upset, distraught and crying. Mr. Caruana asked what had happened and the accused said he did not know. He knew that the couple were having issues with the CAS and he figured that is why the accused was not with K.G.R.D..

[79] The accused spoke again with Mr. Caruana later that morning when the accused came to his apartment. He was described as still distraught and crying. Mr. Caruana asked what had happened to K.G.R.D.. The accused responded that something had happened to K.G.R.D., that he stopped breathing and turned blue. He said he had been feeding the baby, that he set him down and left. When he returned 20 minutes later, K.G.R.D. was blue and had milk in his mouth.

[80] Another important piece of evidence comes from Nicole Daigle, who came to court and testified that she had no recollection of a statement she had given to police on August 8, 2010. She said that she had been high at the time and that she suffers from memory problems. Following a K.G.B. application, her videotaped statement was proffered in evidence for the truth of its contents. In my ruling on the K.G.B. application, I commented on why I had concluded the statement was admissible. I do not propose to repeat those comments here.

[81] Ms. Daigle told Officer Bezaire that she had sent a Facebook message to the accused, who was a former boyfriend, that he should be in touch with her. The accused phoned her and they had a conversation about what happened to K.G.R.D.. By that time, Ms. Daigle had already been visited by police who told her to take notes in the event the accused contacted her. She did so.

[82] She told Officer Bezaire that the accused told her that he thought he had shaken the baby too hard. She said he told her that he had given K.G.R.D. to T.R. and that the baby was not crying or breathing. This latter evidence dovetails with the medical evidence about how K.G.R.D. would have responded to a vigorous shaking. It also accords with T.R.’s testimony about what happened when the accused woke her and told her K.G.R.D. was not breathing. Ms. Daigle had not spoken with T.R., so the only way she would have this information would be if it came from the accused.

[83] She also said that if T.R. had seen the accused getting frustrated with K.G.R.D., she would have taken the baby from him, consistent with T.R.’s evidence that she did not harm K.G.R.D..

[84] Ms. Daigle did not like T.R.. Her animosity toward T.R. was apparent during her testimony. Given her dislike, one might have thought she would have implicated T.R. if she were inclined to be untruthful. However, she did not do so, which in my opinion, bolsters the credibility of her statement to police.

[85] In contrast, she considers the accused a friend and said their decision to split was mutual. She bears no animus toward the accused. Again, this bolsters the credibility of her statement. Finally, the copy of the Facebook message and her notes are contemporaneously corroborative of what she said in her videotaped statement.

[86] At trial, Ms. Daigle clearly did not want to say anything that would implicate the accused. She was sullen, unresponsive and uncooperative at times. At others, she smiled as if amused by something. It is interesting to remember that Mr. Caruana testified that while he was not intimidated by the accused, others could be.

[87] I turn then to the evidence of Michelle Sturgeon. She testified that on one occasion prior to the night in question, she heard K.G.R.D. crying. She went inside 32 Barberry where she observed the accused holding K.G.R.D. under the arms and shaking him. He was telling K.G.R.D. to stop crying in a frustrated tone of voice. She said that the manner in which he was holding K.G.R.D. and the amount of force used was inappropriate. She took K.G.R.D. from the accused and comforted the baby. She did not say anything to the accused or to T.R., a decision that she regrets because she wonders whether she could have prevented K.G.R.D.’ death. She feels guilty. She said she did not want to cause problems for the couple. She thought that she told her husband, Mr. Caruana, about the incident. Mr. Caruana testified that Ms. Sturgeon had complained to him about the accused and what she had seen happen with K.G.R.D..

[88] Ms. Sturgeon also has had a very difficult life. She is addicted to alcohol and perhaps to drugs. She has had run-ins with the law and has a criminal record. She seems to have a troubled marriage. However, she testified that she is a functional alcoholic and has been for many years. She felt her alcohol consumption did not affect her ability to care for her family.

[89] She admitted her problems openly and candidly. She did not minimize them.

[90] Notwithstanding Ms. Sturgeon’s problems and challenges, I thought she was one of the few persons in the neighbourhood and in the accused’s social circle, who was prepared to come to court and tell the truth. Her evidence was unshaken about what she saw. She had no reason to be untruthful. I believe her. Her evidence establishes an assault and is one of the pieces of circumstantial evidence respecting the accused’s guilt of manslaughter.

[91] Finally, I want to deal with the evidence of the accused’s after the fact conduct. Before doing so, I will instruct myself on the relevant legal principles, as enunciated in Watt’s Manual of Criminal Jury Instructions, in R. v. Hall, 2010 ONCA 724, [2010] O.J. No. 4603 (C.A.) and R. v. White, [2011] S.C.R. 433. The Court in Hall noted that:

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. It is not evidence of the commission of an offence. One must not draw incriminating inferences from post offence conduct without consideri