ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20131030

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOAO ROSA

Laura Bird, for the Crown

R. Roots Gadhia, for Joao Rosa

RULING Re s. 724 OF THE CRIMINAL CODE

MacDonnell, J.

[1] At about 10 p.m. on Thursday June 24, 2010, Joao Rosa and his common law partner C.R. brought their seven-week old son J. to the Hospital for Sick Children. Very shortly after arrival at the hospital, J. began to have seizures. The doctors were unable to obtain any information from either Mr. Rosa or C.R. that might account for J.’s grave condition. In the course of an intensive medical assessment, however, they discovered that J. had a skull fracture that extended across the top of his head, virtually from ear to ear, widespread subdural hemorrhaging on the sides and top of his brain, swelling in both cerebral hemispheres, extensive retinal hemorrhaging in his left eye, and soft tissue damage to his neck consistent with having been severely shaken. He also had seven rib fractures and four leg fractures.

[2] A police investigation into the cause of J’s injuries began the following day. Arising out of that investigation, Mr. Rosa was charged with aggravated assault, assault and failing to provide the necessaries of life. The charge of aggravated assault was concerned with J.’s head injuries, which the Crown alleged endangered his life. The charge of assault concerned J.’s rib and leg fractures. The allegation underlying the charge of failing to provide necessaries of life was that Mr. Rosa, knowing that J. was in urgent need of medical attention for the trauma to his head, failed to do anything to obtain that attention for some 40 hours, and that even after he brought J. to the hospital he failed to disclose to the medical team what had happened to him.

[3] Mr. Rosa was tried by a jury on those three counts.[^1] On October 12, 2013, after four days of deliberations, the jury returned a verdict of guilty on the count of failing to provide the necessaries of life. The jury was unable to reach unanimous verdicts on the counts of aggravated assault and assault.

[4] Following the return of the verdict on the count of failing to provide the necessaries of life, an issue arose concerning the factual basis for sentencing. The jury had been instructed that on the facts of this case they could only find Mr. Rosa guilty of failing to provide necessaries if they were satisfied beyond a reasonable doubt that, whether intentionally or accidentally, he inflicted J.’s head trauma,. In the circumstances, the verdict necessarily carried with it a finding that Mr. Rosa did inflict that trauma. It did not, however, resolve the issue of whether the infliction of the trauma was intentional. A finding that the trauma was inflicted intentionally was capable of being an aggravating circumstance on sentencing for failing to provide necessaries and it was suggested to counsel that it was open to me to make that finding pursuant to the provisions of s. 724 of the Criminal Code. The matter was adjourned briefly to enable counsel to prepare submissions as to whether the finding should be made.

[5] When proceedings resumed, counsel for Mr. Rosa submitted that the court had no jurisdiction to make a finding on a question of fact that the jury had been unable to decide. She submitted that pursuant to s. 11(f) of the Canadian Charter of Rights and Freedoms Mr. Rosa had a constitutional right to have the question determined by a jury. She further submitted that in any event, on the evidence adduced at trial, I ought not to make the finding.

[6] On October 21, 2013, I delivered brief oral reasons holding that it was open to me to make a finding in relation to whether the force that caused J’s head trauma was inflicted intentionally or accidentally. I further held that the Crown had proved beyond a reasonable doubt that the trauma was inflicted intentionally. I indicated that more complete written reasons would follow. These are those further reasons.

A. Fact Finding After a Jury Verdict

[7] After a verdict is rendered by a jury, it is the responsibility of the trial judge to determine the appropriate sentence in light of the principles set forth in s 718.1 to 718.3 of the Criminal Code. In order to determine the appropriate sentence, the sentencing judge is obliged to decide what the facts relevant to that determination are. The judge’s decisions in that respect are governed by s. 724 of the Code. That provision essentially sets forth two principles.

[8] First, the sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty": s. 724(2)(a). In determining what express or implied facts were essential to the jury’s verdict of guilty, the judge may have regard to the instructions that were given to the jury: see R. v. Ferguson, 2008 SCC 6, at paragraph 20. It is to be assumed that the jury followed those instructions.

[9] Second, where the verdict of the jury does not expressly or implicitly resolve a matter of fact that is relevant to the determination of the appropriate sentence, it is the obligation of the sentencing judge to attempt to make a determination in that regard on the basis of the evidence adduced at the trial: s. 724(2)(b); Ferguson, supra, at paragraphs 18-19; R. v. Punko, 2012 SCC 39, at paragraph 11; R. v. Balcha (2004) 2004 396 (ON CA), 184 C.C.C. (3d) 1 (Ont. C.A.), at paragraph 31; R. v. Roncaioli, 2011 ONCA 378, at paragraph 59. Where the disputed fact is relied upon as an aggravating circumstance, the burden is on the Crown to satisfy the sentencing judge of its existence beyond a reasonable doubt: s. 724(3)(e).

[10] The fact that the disputed circumstance might have justified a conviction for a more serious offence does not preclude the sentencing judge from finding the circumstance to be proven unless the verdict of the jury, reasonably construed, constitutes a rejection of that circumstance: Ferguson, at paragraph 17; Balcha, at paragraph 55. The process of proving the circumstance does not engage s. 11(f) of the Charter. An offender is not entitled to a jury trial in relation to the determination of aggravating circumstances even if those circumstances amount to other offences: see R. v. Watson, 2008 ONCA 614, at paragraph 70.The object of determining “other relevant circumstances” pursuant to s. 724 is not to determine guilt for other offences nor to enable the sentencing judge to punish the offender for other offences. It is merely to delineate, for sentencing purposes, the context and content of the offence of which the offender has been found guilty. It follows, therefore, that “the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand”: Ferguson, at paragraph 18.

[11] As I have said, in the circumstances of this case the verdict of guilty on the count of failing to provide necessaries of life necessarily carried with it a finding that Mr. Rosa inflicted the trauma to J’s head. As a matter of law, that finding must be accepted for sentencing purposes. Reasonably construed, the deadlock of the jury in relation to the count of aggravated assault indicates an inability to come to a unanimous decision in relation to Mr. Rosa’s intent at the time the trauma was inflicted. There is nothing in s. 724 that precludes a sentencing judge from making of a finding on a fact on which the jury was unable to agree. The failure of the jury to reach a unanimous decision on a relevant fact simply leaves the issue unresolved and opens the door to a decision under s. 724(2)(b).

[12] Whether the trauma was caused intentionally or accidentally is relevant to an assessment of the moral blameworthiness of the conduct of Mr. Rosa in failing to obtain medical assistance for his severely injured child. Moral blameworthiness is a relevant consideration in the determination of an appropriate sentence: see, e.g., Balcha, at paragraph 31. In accordance with the authorities I have referred to, therefore, I am obliged to attempt to answer that question.

B. Has the Crown Proved that the Trauma Was Inflicted Intentionally?

[13] Based on the medical evidence adduced at trial, considered in combination with Mr. Rosa’s after-the-fact conduct, I am satisfied that the only reasonable inference to be drawn is that the injuries to J’s head resulted from an intentional application of force.

[14] The sole evidence that emerged at trial that J. may have been the victim of an accident was contained in the statement that Mr. Rosa provided to the police at the Hospital for Sick Children on the afternoon of June 25, 2010. In that statement, Mr. Rosa described an incident in which he had tripped over a laundry basket while carrying J. in his arms, causing him to lose his balance and to drop J. onto a carpeted floor. In his testimony at trial, Mr. Rosa denied that he had ever dropped J. He stated that he concocted the account of an accidental fall to provide the doctors with information that would assist them in treating J’s injuries, and to exculpate C.R., who he believed must have accidentally dropped J.

[15] The medical evidence was overwhelmingly against the possibility that J’s massive head injuries could have been caused by the kind of fall described in Mr. Rosa’s statement. Dr. Shroff, a very experienced neuroradiologist at the Hospital for Sick Children, testified that J’s skull fracture would have required significant blunt force, such as would occur in a high velocity motor vehicle accident, or a fall from 10 feet or more onto a concrete floor or other hard surface, not from a short fall. In his view, similar blunt force trauma would have been required to produce the subdural haemorrhaging and the brain swelling. He said that it would be “extremely unusual” to have a fracture or subdural hemorrhaging like J’s result from a fall of 3 to 4 feet onto a carpeted floor. It could result from a fall of 3 to 4 feet onto “a sharp edge, metal or otherwise, concrete”, but that too would be extremely unusual.

[16] Dr. Shroff further testified that while the soft tissue injuries to J’s neck could have been caused by a fall, it would have to have been a significant fall, which I took to mean the same kind of fall as would be required for the skull fracture. In Dr. Shroff’s opinion, the injury to J’s neck was the kind of injury normally associated with whiplash, where the neck is moved back and forth at high speed. This could result from a severe shaking of the child.

[17] Dr. Mireskandari, a pediatric ophthalmologist at the Hospital for Sick Children, ruled out a number of possible causes for the extensive retinal hemorrhaging in J’s left eye, including medical disorders and direct trauma. He testified that a severe crushing head injury could have caused it. As examples of the kind of injury required, he suggested a television set falling onto J’s head, or a fall from a distance of 16 feet. He testified that it was very unlikely that a fall of three feet to a carpeted floor could have been the cause. As he put it, short fall victims do not usually have retinal haemorrhaging. The possibility that the doctor believed to be most likely was severe shaking. He explained that the back of the eye is a solid gel and that if a child is forcefully shaken back and forth, causing repetitive acceleration and deceleration of the head, the gel can shear off from the retina, causing haemorrhaging.

[18] Dr. Kadar, a pediatrician with the Suspected Child Abuse and Neglect unit at the Hospital for Sick Children, testified that an accidental fall such as was described by Mr. Rosa in his statement to the police could not account for either the severe head injuries or the retinal hemorrhaging suffered by J. He testified that babies that fall from a height of 3 to 5 feet do not tend to sustain serious brain injuries. He agreed that sometimes such a fall can result in a skull fracture, sometimes a tiny subdural hemorrhage, sometimes scalp swelling, but, he testified, more severe injury is exceedingly rare.

[19] Looked at as a whole, the medical evidence overwhelmingly supports a conclusion that J’s head injuries cannot be explained by the kind of accident described in Mr. Rosa’s statement to the police. The skull fracture and subdural hemorrhaging required far greater force that a fall from a parent’s arms, and the retinal hemorrhaging and the injury to J’s neck required an entirely different mechanism. There is a complete absence of evidence suggesting that J. was ever in a situation in which an accident of the kind necessary to produce all of those injuries might have occurred.

[20] The testimony of the medical experts is not the only evidence that bears upon the question of whether J’s head injuries were caused by an accident. There is also the evidence of Mr. Rosa’s after the fact conduct. As I explained in my instructions to the jury, that conduct includes Mr. Rosa’s failure to tell anyone that J. had suffered head trauma, his failure to seek medical assistance, his silence in the face of questions from the medical team at Sick Kids, and the false account that he ultimately gave to the police on the afternoon of June 25.

[21] I warned the jury to be cautious before drawing inferences from the after the fact conduct. I told them that it has only an indirect bearing on issues such as intent, and that it may be susceptible to faulty inferences. I directed them that they could only use the after the fact conduct to support an inference that Mr. Rosa was aware that he had done something wrong if, having considered the evidence as a whole, they rejected any other explanation for it. I take the same approach here in determining whether the Crown has proved beyond a reasonable doubt that the trauma Mr. Rosa inflicted was intentional.

[22] The explanation provided by Mr. Rosa for the bulk of the after the fact was that he did not know that J had suffered any kind of trauma. That explanation was necessarily rejected by the jury, and I too would reject it. His deliberate failure to tell the doctors that J had suffered the head injuries while in his care is far more consistent with the injuries having been caused by an assault that by an accident.

[23] Part of the after the fact conduct was the “accidental drop” story that Mr. Rosa gave to the police on the afternoon of June 25. As I have said, Mr. Rosa testified that the statement was a lie. He testified that he concocted the story because he honestly believed that C.R. had dropped J, that he did not want C.R. to lose custody of J., and that therefore he decided to make it appear that he had dropped J. so that the doctors would be better able to treat him.

[24] I accept Mr. Rosa’s testimony that the accidental drop story was a concoction but I reject his explanation for concocting it. His assertion that he believed that making up a story about an accidental fall would help the doctors treat J’s catastrophic and life threatening injuries is preposterous. Further, as I indicated in my reasons for sentence on October 25, it is telling that he did not offer that information to the doctors – he offered it to Lisa Pulis and to the police. The fact that he took that information to the police rather than to the doctors strongly suggests that the real motivation for the concoction was not to assist in the treatment of J. but rather to shield himself from the jeopardy of a criminal prosecution.

[25] Because the fact that Mr. Rosa intentionally inflicted the trauma to J’s head is relied on as an aggravating circumstance on sentencing, the burden is on the Crown to prove it beyond a reasonable doubt. Taking the medical evidence and the after the fact conduct as a whole, and having considered it in light of the entirety of the evidence, including the testimony of Mr. Rosa, I am satisfied beyond a reasonable doubt that the force was applied intentionally. What happened to J. at the hands of Mr. Rosa was no accident.

[26] Accordingly, I ruled that the factual basis for sentencing Mr. Rosa on the fail to provide necessaries count would include a finding that Mr. Rosa inflicted the trauma to J’s head intentionally.

MacDonnell, J

Released: October 30, 2013

[^1]: The indictment also included a count alleging that Mr. Rosa assaulted his common law partner C.R. The jury found Mr. Rosa not guilty of that count, and no further reference to it is necessary.