ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ (P) 2346/12
DATE: 2014 06 05
B E T W E E N:
HER MAJESTY THE QUEEN
Kelly Slate, for the Crown
- and -
NICHELLE ROWE-BOOTHE and GARFIELD BOOTHE
Brian Ross, for the Defendant, Nichelle Rowe-Boothe
John Rosen, for the Defendant, Garfield Boothe
HEARD: May 12, 2014
REASONS FOR SENTENCE
F. Dawson J.
[1] On April 5, 2014 the jury convicted Nichelle Rowe-Boothe and Garfield Booth of the second degree murder of 10 year old Shakeil Boothe. Shakeil was Garfield’s son by a prior relationship. The indictment was unusual in that it alleged the murder was committed during a four month and 25 day period ending on or about May 27, 2011.
[2] As a result of their convictions for murder each of the accused will be sentenced to the mandatory minimum sentence of life imprisonment as provided for in s. 235 of the Criminal Code, R.S.C. 1985, Chap. C-46. However, in addition, I am charged with the responsibility of determining a period of ineligibility for parole which shall be not less than ten and not more than 25 years: ss. 745(c), 745.4 of the Criminal Code. Pursuant to s. 745.4 I am to make this determination having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendations made by the jury pursuant to s. 745.2 of the Code.
[3] While the provisions of s. 745.4 govern, it is well understood that the general principles of sentencing, with some modification or change in emphasis, are to be applied within the context of s. 745.4: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227.
Factual Overview
[4] Shakeil was born in Jamaica on September 5, 2000 as a result of a brief liaison between Garfield Boothe and Kenisha Moore, now Kenisha McCree. Ms. McCree was 18 and Garfield Boothe was not much older. Shakeil was about two years old when Garfield acknowledged paternity and began to assist with Shakeil’s support. Shakeil was being raised in Jamaica by his mother and maternal grandmother. His mother, Ms. McCree, was working part of each year in the United States.
[5] Garfield and Nichelle met in Florida where they were both illegal immigrants. They married in 2005 and later that year they both met Shakeil for the first time on a trip home to Jamaica. Soon thereafter, Garfield returned to Canada where he had permanent resident status. He made arrangements for Nichelle to come to Canada.
[6] The evidence at trial revealed that from the time Garfield and Nichelle started to live together in Florida they had a rocky relationship that included domestic violence. By all accounts this continued after they were married and after they were both living in Canada. The relationship involved a number of separations.
[7] In 2009 Garfield Boothe prevailed upon Ms. McCree to allow Shakeil to come to Canada for a “better life”. Ms. McCree was in the process of obtaining permanent resident status in the United States and felt Shakeil should have a relationship with his father. Shakeil was originally to come to Canada for a six month trial period.
[8] At the time when Garfield arranged for Shakeil to come to Canada he was separated from Nichelle who was unaware of the arrangement regarding Shakeil. However, by the time Shakeil arrived in Canada in April 2009 the couple had reconciled. Shakeil’s arrival took Nichelle by complete surprise. However, she assumed the role of stepmother to Shakeil. The family moved into a rented home at 15 Homeland Court in Brampton, and Shakeil was enrolled at Hanover Public School.
[9] The evidence overall shows that things were relatively normal in the beginning. Shakeil attended school. Garfield worked fairly regularly as a forklift operator for two different companies through an employment agency. Nichelle had a job for a while and then began to attend Humber College in a nursing program. Shakeil had some adjustment problems but school officials did not feel these were particularly serious. Nichelle testified that, as had always been the case, Garfield was controlling in their relationship, was mistrustful of her and could be violent or abusive towards her, particularly when drinking or using marijuana.
[10] Nichelle became pregnant and in September 2010 gave birth to a baby boy, Ja’den. The birth of Ja’den appears to represent a turning point in this case. Once Ja’den was born less attention was paid to Shakeil. Shakeil’s behaviour at school deteriorated, although school officials still did not describe it as serious. However, the school was regularly reporting incidents at school to Garfield and Nichelle. Garfield was attending the school to deal with the problems and was angered by them. Shakeil was subjected to ever increasing physical “discipline”. I put quotation marks around the word discipline because what was occurring was far too abusive to fall within any proper concept of discipline.
[11] Shakeil was whipped by his father with a belt. These whippings increased in frequency to the point where they were occurring about twice per week. Garfield would whip Shakeil to the point of drawing blood. The police forensic examination of the family home revealed extensive blood spatter, particularly in the upstairs hallway near the bedrooms and bathroom, and in and around Shakeil’s bedroom.
[12] The evidence also established that Shakeil’s food was restricted as a means of discipline. Shakeil began to lose weight and was malnourished. By October he was frequently missing school. By November he was no longer in attendance at school. Garfield and Nichelle lied to school officials and isolated Shakeil. Garfield told the school that Shakeil was going to Jamaica for an early Christmas and that he would return to school in January 2011. In January 2011 Garfield lied to the school again and signed forms indicating that Shakeil had returned to Jamaica and been enrolled in school there.
[13] The reality was that by November of 2010 Shakeil was regularly being chained to his bed. The beatings continued as did the deprivation of proper nourishment. Shakeil became ill but was not taken to a doctor. He was being whipped so often that his legs, back, buttocks, shoulders, arms and hands all showed evidence of repeated injuries with scars on top of scars to the point that the pigmentation of his skin had become dark, blotchy, and uneven. He developed what was described as a “rhinoceros skin” pattern on parts of his body that had been repeatedly lashed with a belt. There were also scars on his back that could have been caused by burning but that was never clearly established. However, Shakeil’s bed sheets and mattress showed a pattern of having been burned by a clothes iron.
[14] Shakeil was also being hidden away from view. Neighbours no longer saw much of him. When visitors came to the house there was often no sign of Shakeil. When public health nurses attended the house regarding Ja’den they were not told about Shakeil and saw no sign of another child in the house. While baby Ja’den received medical care Shakeil did not.
[15] When Shakeil was taken to a birthday party held for one of Garfield’s brothers in March 2011, those who saw Shakeil said he was thin and sickly looking. He sat with Nichelle at a table and did not interact with others. A high school teacher and basketball coach who sat at the same table said Shakeil appeared to have some terrible illness. When a relative, Claudette Boodth, hugged Shakeil she said his little body was shaking. She also saw Shakeil the next day at her home. On both occasions she felt something was terribly wrong. She resolved to take further steps to investigate and eventually made an anonymous telephone call to the Children’s Aid Society to report suspected abuse.
[16] Shakeil likely died on the morning of Thursday May 26, 2011, although on the forensic evidence the injuries that were the immediate cause of his death may have been inflicted up to 12 hours before his death. Dr. Michael Pollanen, the chief forensic pathologist for Ontario, gave dramatic evidence about Shakeil’s condition. He said that Shakeil was malnourished and had sustained multiple injuries over a prolonged period of time. Dr. Pollanen said Shakeil:
…died of musculocutaneous injuries, sustained by being hit heavily and repeatedly shortly before death. His ability to survive the effects of these injuries was diminished by the debilitating effects of malnutrition, old injuries sustained by repetitive trauma, (including whipping, or lashing) and multiple bacterial infection involving the lung, skin and blood stream.
[17] Dr. Pollanen went on to say that “…the cause of death in this case is a constellation of factors related to malnutrition, repeated injury, infection, but in my view, critically, at the end, there was an episode of serious trauma resulting in musculocutaneous injury and bleeding under the skin”.
[18] The only reasonable conclusion from Dr. Pollanen’s evidence is that in the minutes to hours before Shakeil’s death he had suffered a serious beating. There was no evidence that a weapon was used. It appeared as if Shakeil had been repeatedly hit, kicked or stomped on. The observed injuries were not characterized by whipping, as many of the earlier injuries were. Rather, it appeared there had been blows to the face and head, and bruises to the torso which created a carpet of bruising and so much bleeding under the skin that Shakeil went into hypovolemic shock due to lack of circulating blood. However, that blood loss was all internal and the beating was not a bloodletting event. This could have happened from minutes to up to 12 hours before Shakeil died.
[19] Despite the severity of the final beating, Dr. Pollanen insisted that death was brought on as a result of all that had happened to Shakeil. Shakeil was in a debilitated state and in a downward spiral at the time he received this final beating. I accept that evidence. Shakeil was malnourished but not starving. He had bacterial pneumonia with pus forming in his lungs. His body’s defences had been overwhelmed. Sores on Shakeil’s legs were infected and the bacteria had entered his bloodstream.
[20] There is no dispute that the evidence shows that Shakeil was repeatedly whipped with a belt from at least the fall of 2010 onward. Garfield Boothe agreed in his testimony that he whipped Shakeil. Nichelle admitted whipping Shakeil only once in September 2010, prior to the time frame of the indictment.
[21] There is no doubt that from sometime in the fall of 2010 onward Shakeil was often chained to his bed. We have photographs taken by Nichelle which show Shakeil laying on his bedroom floor with one end of a chain padlocked to his ankle and the other end padlocked to his bedframe. The photos show that bottled water was nearby as well as a large plastic jug which Shakeil could use to relieve himself. This suggests that Shakeil was chained for prolonged periods. Shakeil’s bare legs show obvious signs of injury. There is a dispute as between the accused about who initiated that chaining. Each testified the other did. What is abundantly clear in that they were both complicit in permitting Shakeil to be chained to his bed through large parts of the day.
[22] There is no doubt that Shakeil was malnourished. He appeared hungry at school. He was stealing food, mostly “junk food”, from other children. When Shakeil first came to Canada he attended a doctor when needed and medical records show he was gaining weight. Based on all of the evidence, including that of civilians who saw Shakeil in 2011, that trend reversed. Dr. Pollanen testified Shakeil had used up all of his fat reserves.
[23] Both of the accused were aware that Shakeil had wounds and was often ill. While Shakeil had been taken to a doctor in early December 2010 for behavioural problems, neither accused sought medical treatment for Shakeil in 2011 although they knew he was ill. Garfield was conducting internet research on pneumonia prior to Shakeil’s death. He had also asked his mother-in-law, Felicia Chambers, to obtain some medicine in Jamaica and send it to him for Shakeil. Both Garfield and Nichelle testified that Shakeil could not be taken to the doctor as that would lead to the discovery of Shakeil’s abuse. That in turn would constitute a violation of Garfield’s probation, imposed for his assaults on Nichelle, and lead the Children’s Aid Society to apprehend baby Ja’den. Both accused wished to avoid losing Ja’den at all costs.
[24] Everyone agrees that the evidence shows that Shakeil was in need of nutrition and medical attention. He was clearly in need of protection from various forms of ongoing child abuse.
[25] One of the main issues at trial was who committed the final assault on Shakeil. This has re-emerged as an issue in relation to parole ineligibility. The question is whether the jury’s verdict resolved that issue.
[26] Each of the accused testified at trial. Each acknowledged that they contributed to Shakeil’s death in a manner that rendered them guilty of manslaughter. However, each denied that they were the perpetrator of the final vicious assault that caused Shakeil’s massive subcutaneous bleeding. Each blamed the other for that. No doubt this was because it was indisputable that whoever perpetrated that final assault had the intent required to turn the acknowledged manslaughter into murder.
[27] However, neither accused testified that they had witnessed the final assault. The evidence they gave was circumstantial.
[28] Shakeil was sleeping on a couch in the basement in the few days before his death because he had wet his bed the previous weekend. Nichelle testified that on the morning of May 26, 2011, while she was still in bed, she heard Garfield yelling at Shakeil to take some cough medicine. Garfield usually dealt with Shakeil in the morning before going to work. Nichelle testified that on this morning Garfield left for work later than usual, judging by the clock on her nightstand.
[29] It was normal for Nichelle and Garfield to talk on the telephone when Garfield was on his way to work and at his morning break. Nichelle testified that there were such conversations on May 26. However, she said that in the telephone conversations that morning Garfield twice asked her to check on Shakeil, which was unusual. However, she did not check on Shakeil. Later, when she got up to make breakfast she found Shakeil dead on the basement floor. Shakeil was wearing blue jeans and a t-shirt. He usually slept in pyjamas. She immediately telephoned Garfield who left work and came home.
[30] Garfield’s version of events was different. He denied any altercation with Shakeil. He said he left for work at his normal time. When he left Shakeil was wearing pyjamas and watching television. Records from Garfield’s place of employment show he punched in as usual at 6:00 a.m. The timing of some cellular telephone calls contradicted Nichelle’s testimony about times. However, she said she was relying on a clock on her nightstand which may not have had the correct time.
[31] There was a great deal of conflict between the evidence of Nichelle and Garfield about many of the events of May 26, 2011. All of that was summarized in my charge to the jury and I will not repeat it here.
[32] A main feature of Garfield’s defence was the suggestion that Nichelle became enraged with Shakeil and beat Shakeil because he had answered a telephone call from the Children’s Aid Society (CAS) placed to the home that morning. A CAS worked named Bimbo Thomas did call the house that day in response to the anonymous tip from Claudette Boodth. Ms. Thomas said the call was answered by a young sounding male who identified himself as Daniel. She did not say the person who answered the phone was a child. Nichelle testified it was Garfield who answered the phone and that Daniel was a name Garfield used when he did not want to talk to someone on the telephone. Garfield denied that he answered this call. Again there is considerable conflicting evidence on this issue and related points, all of which was summarized in the charge to the jury. There was no affirmative evidence that Shakeil answered this call.
[33] I am satisfied that all counsel, and I in my charge, made it clear to the jury that the resolution of who was responsible for the final assault was an important issue. It was conceded by Mr. Rosen on behalf of Garfield, and virtually conceded by Mr. Ross on behalf of Nichelle, that whoever perpetrated that final assault was guilty of murder. Each accused said it was the other.
[34] It was the Crown’s primary position at trial that Garfield perpetrated the final assault and that Nichelle was guilty of murder as an aider or abettor, or as a party pursuant to the unlawful common purpose provisions of s. 21(2) of the Criminal Code.
[35] The Crown submitted to the jury that Nichelle was aware of the ongoing physical abuse of Shakeil by Garfield. This included an assault on Mother’s day weekend in early May 2011 when Nichelle saw Garfield, who weighed 230 pounds, stomp on Shakeil’s chest while Shakeil was on the floor. At that time Shakeil weighed about 60 pounds and was ill. Blood spatter evidence and evidence from Dr. Pollanen that Shakeil suffered two broken ribs just weeks before his death tended to confirm that assault. I should say that I accept Nichelle’s evidence that such an assault occurred.
[36] It was the Crown’s position that Nichelle knew that by failing to report the ongoing abuse she was enabling and encouraging the assaults to continue, and that due to the seriousness of the Mother’s Day weekend assault she knew that if the assaults continued Garfield would likely kill Shakeil, who was in an obviously weakened state. The Crown also submitted that Nichelle and Garfield were participants in an unlawful common purpose. That purpose was to assault Shakeil and/or deprive him of the necessaries of life. The Crown submitted that in the course of carrying out that purpose Nichelle foresaw that Garfield was likely to murder Shakeil.
The Position of The Crown and Defence on Parole Ineligibility
[37] On behalf of the Crown, Ms. Slate submits that I should fix the period of parole ineligibility at 22 years for Garfield and 15 years for Nichelle. Ms. Slate submits that it is inherent in the manner in which the case was presented to the jury that by its verdict the jury found that Garfield was the perpetrator of the final assault and that Nichelle is guilty of murder as an aider or abettor or pursuant to s. 21(2) of the Criminal Code. She further submits that this conclusion is supported by the jury’s recommendation on parole ineligibility, which was considerably longer for Garfield than for Nichelle. Ms. Slate submits these factors justify the proposed differentiation between the periods of parole ineligibility for the two accused sought by the Crown.
[38] With respect to the length of the period of ineligibility for Garfield the Crown relies on both the trial and Court of Appeal judgments in R. v. E.B., [2006] O.J. No. 2752 (S.C.J.), per Watt J. (as he then was); aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227. In E.B. the more involved offender received a parole ineligibility period of 22 years. That period was upheld on appeal. With respect to Nichelle, Crown counsel relies in particular on R. v. Olsen, 1999 1541 (ON CA), [1999] O.J. No. 218, 131 C.C.C. (3d) 355 (C.A.). In Olsen the spouse of the main abuser, who was less involved, received a parole ineligibility period of 15 years. That was also upheld on appeal.
[39] Generally, and in respect of both accused, the Crown also relies on R. v. Dooley, [2002] O.J. No. 5921 (S.C.J.); R. v. Fatima, [2004] O.J. No. 218 (C.A.) and R. v. Mitchell, [1987] N.S.J. No. 430 (C.A.). All of the cases cited by the Crown concern the murder of a child by a parent or guardian.
[40] On behalf of Nichelle Rowe-Boothe, Mr. Ross submits that a period of 13 years would be appropriate. Mr. Ross adopts the Crown’s submission that the jury’s verdict and parole ineligibility recommendations imply that they found Nichelle was not involved in the final beating. Mr. Ross notes that in the Olsen case, at para. 15, the Court of Appeal said 15 years of ineligibility was at the high end for Ms. Olsen, who had failed to protect her deceased daughter from her co-accused, who was the victim’s father. He also points to the 13 year ineligibility period imposed on the lesser involved accused in the Dooley case, and stresses that Nichelle did try to intervene on occasion to protect Shakeil, including by arranging for a warning to be sent to Kenisha McCree on Facebook. Mr. Ross also emphasizes that, although the jury rejected Nichelle’s duress defence, the evidence establishes that she was physically and emotionally abused by Garfield.
[41] On behalf of Garfield Boothe, Mr. Rosen submits that parole ineligibility in the range of 13 to 15 years would be appropriate. Mr. Rosen submits that in all the circumstances it cannot be said that the jury’s verdict necessarily represents a finding that Garfield perpetrated the final assault and that their parole recommendations may simply be reflective of Garfield’s role as the primary disciplinarian who whipped Shakeil repeatedly. Mr. Rosen submits that it is for me to make findings of fact as to whether Garfield committed the final assault. As that is an aggravating circumstance, Mr. Rosen submits I would have to make that finding beyond a reasonable doubt: s. 724(3)(e) Criminal Code; R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368. Mr. Rosen submits that I should conclude that I am unable to resolve that factual issue beyond a reasonable doubt.
[42] Mr. Rosen also points to a number of factual matters which he submits distinguish this case substantially from cases such as E.B. and Dooley.
Resolution of the Factual Dispute for Sentencing Purposes
[43] As the judge who presided over the trial I have seen all of the evidence in overview. I believe that it is quite likely that the jury has made the findings of fact that the Crown submits they have.
[44] However, based on the manner in which I charged the jury and the extended timeframe covered by the indictment, I conclude that it was not “essential to the jury’s verdict of guilty”, to use the words of s. 724(2)(b) of the Criminal Code, that the jury make a finding that Garfield Boothe committed the final assault before he could be convicted of murder. It is the provisions of s. 724 which govern the fact finding process for the purpose of sentencing following a jury trial. That section requires that I accept the express or implied factual findings that are essential to the jury’s verdict of guilty. Otherwise, I must make my own findings of fact.
[45] In my charge to the jury I left open routes to a conviction for murder for each accused based on a finding that the other accused committed the final assault. While in the circumstances of this case acceptance of Garfield’s evidence that he did not commit the final assault would most likely have led to a conviction for manslaughter for him, based on my charge, Dr. Pollanen’s evidence and the prolonged time frame in the indictment, I cannot say that Garfield could not have been convicted of murder by a juror who was uncertain about who committed the final assault. I also observe that the jury was instructed that different jurors could be convinced of the guilt of an accused by different facts.
[46] Having regard to the wording of s. 724(2) I also do not think it is permissible for me to draw conclusions about the jury’s factual findings from the sterner recommendations for parole ineligibility the jurors made in relation to Garfield. As Mr. Rosen submitted, Garfield was Shakeil’s natural father, he was the primary disciplinarian, he took responsibility for dealing with the school and he admitted repeatedly whipping Shakeil with a belt to the point of drawing blood. These and similar factors could account for the sterner recommendation in relation to Garfield.
[47] I also take note of the principles that are to govern a trial judge in finding facts for sentencing purposes as outlined in R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6 at paras. 16-18. There the Supreme Court of Canada held that a trial judge should only make those factual findings that are necessary to decide on an appropriate sentence. Where the factual implications of the jury’s verdict are unclear the judge should make his or her own findings and “not attempt to follow the logical process of the jury”.
[48] In this case it is, in my view, necessary to resolve the factual dispute concerning the last assault. The resolution of this question in the circumstances of this case is the primary factor which would justify a substantial disparity between the accused in terms of parole ineligibility.
[49] Based on my review of all of the evidence I am satisfied beyond a reasonable doubt that Garfield Boothe perpetrated the final assault. I conclude I am able to make that finding without resolving all of the conflicts between the evidence of the two accused.
[50] Garfield was the primary disciplinarian. He has admitted to repeated and brutal whippings of Shakeil. He testified that he was aware of the scars and wounds his whippings were causing to Shakeil and yet he continued. I conclude the evidence establishes that he had a specific propensity to treat Shakeil with harsh physical violence when Shakeil angered him. Anyone who would repeatedly whip a ten year old boy with a belt to the point where blood was drawn and spattered about would certainly be inclined towards other forms of physical violence against the child. In making this finding I have instructed myself in the same manner I instructed the jury regarding the important distinction between permitted specific propensity reasoning and prohibited general propensity reasoning.
[51] There is very little evidence of Nichelle ever striking Shakeil. She admitted lashing Shakeil with a belt on one occasion in September 2011 when Shakeil stole from her purse. Garfield testified that he had never seen Nichelle strike Shakeil but he did say that he saw marks on Shakeil that he believed Nichelle was responsible for. Given all of the scars and marks on Shakeil that Garfield was responsible for, it is very difficult to understand how he could make such discriminating observations. I place little weight on that evidence.
[52] Both Garfield and Nichelle had the opportunity to assault Shakeil on the morning of May 26, 2011. However, I reject the theory of Nichelle’s motive, as advanced on Garfield’s behalf before the jury. Bimbo Thomas testified that when she placed her call to the home on May 26, 2011 the person who answered the phone and said he was Daniel sounded young but not as young as an adolescent. Shakeil was only a ten year old boy and he was very ill at the time. The conversation Ms. Thomas described did not sound like what a 10 year old boy would say. Why would a 10 year old boy make up a false name? It would be speculation to say that Ms. Thomas misheard the name. I also note that “Daniel” did not say “his” parents were not at home. According to Ms. Thomas Daniel said Shakeil’s parents were not at home.
[53] I recognize that there are some problems with what Ms. Thomas said about the duration of time that passed between her call to the residence when she spoke to someone who said he was Daniel and the calls she received back from Nichelle and Garfield. However, in the context of all of the evidence, I conclude the call Bimbo Thomas made to the home was at a point in time after Garfield got home from work. There were no other males around the home at the relevant time. Given Ms. Thomas’ evidence, I accept Nichelle’s evidence that Garfield answered the phone. I reject that Nichelle had the motive to kill Shakeil that is alleged by Garfield. There is no concrete support for that alleged motive.
[54] Of considerable importance to my conclusion is the series of cards and letters Garfield sent to Nichelle when they were both incarcerated and after the conclusion of the preliminary inquiry. In those cards and letters Garfield referred to Nichelle in glowing terms and referred to her as a “million dollar” mother. This was after Dr. Pollanen testified at the preliminary inquiry. After hearing Dr. Pollanen’s evidence Garfield could no longer have believed that his son died of a cold. He was aware of the severe final beating. If he did not inflict the beating Nichelle was the only other person who could have done so. There is no hint in the evidence that Garfield was simply saying nice things to Nichelle to influence her into not testifying against him. Garfield did not offer that explanation in his evidence. In my view he really offered no satisfactory explanation for the letters. I conclude these cards and letters are an indication that Garfield knew that Nichelle was not responsible for the final beating because he was.
[55] While I do not find Nichelle to be a generally credible witness there are some parts of her evidence which I do accept. I do so because they make sense in the context of all of the evidence and because, in each case where I accept her evidence, I find there is a measure of support for that aspect of her evidence in the other evidence. I have already mentioned Bimbo Thomas’s evidence.
[56] I previously mentioned that I accept Nichelle’s evidence about the assault she witnessed on Mother’s Day weekend. She said she saw Garfield chase Shakeil and stomp on his chest. This is significant because it was an assault that involved blows other than whipping with a belt. As previously mentioned, Dr. Pollanen testified that he saw evidence that two of Shakeil’s ribs had been broken just weeks before his death. Dr. Pollanen also saw evidence of older blows to the head and of some other older injuries that may not have been inflicted with a belt. Significantly, the recent assault involved the re-breaking of one of the previously broken ribs, and Dr. Pollanen described stomping as one of the likely mechanisms of inflicting injuries on Shakeil during the final assault. Taken together with my conclusion that Garfield exhibited a specific propensity to assault Shakeil, this is powerful evidence that Garfield perpetrated the final assault.
[57] There is a great deal of after-the-fact conduct evidence in this case. Although it is clear that Shakeil was dead by the morning of May 26, 2011 the authorities were not called to the house until the afternoon of May 27. In the interim Nichelle and Garfield worked co-operatively to remove almost every trace of Nichelle and Ja’den from the house. Nichelle then took Ja’den and fled to the United States. Garfield accompanied Nichelle to the Toronto bus station in a taxi on the evening of May 26 before he returned to the family home in Brampton.
[58] In the taxi on the way to the bus station Garfield sent Nichelle a text or BBM message in which he referred to himself as Jesus Christ and told Nichelle she did not need to worry because he would be the one who was crucified. He then made reference to a passage from the Bible. In his testimony Garfield explained that at that moment he came to the realization Shakeil had been murdered. However, he resisted any suggestion in cross-examination that he thought Nichelle had murdered Shakeil.
[59] By May 27, 2011 Nichelle was with her sister in Pittsburgh. There were a series of text messages between Nichelle and Garfield over the course of the day. It appears the two accused were trying to be supportive of each other and Nichelle was encouraging Garfield to call the police. Garfield indicated that he would take responsibility. In one of these messages Nichelle told Garfield that in fact she was not responsible for Shakeil’s death. Garfield never took issue with that in any responding message despite his testimony that the previous night he had come to the realization that his son had been murdered.
[60] In the context of all of the other evidence I conclude the realization Garfield came to was that he had murdered his son. This lends support, in the context of the other evidence, to my conclusion that Garfield perpetrated the final assault on Shakeil.
[61] Before leaving the question of factual determinations I also wish to indicate that I conclude it was Garfield who initiated chaining Shakeil to his bed. During the trial photographs were unexpectedly produced of Shakeil chained to his bed. Those pictures were emailed to Nichelle’s counsel. Nichelle subsequently testified that she took the pictures. The pictures supported the credibility of Nichelle’s mother, Felicia Chambers, who testified that she saw a silver metal chain used to chain Shakeil to his bed. The pictures tended to discredit the defence theory, advanced on behalf of Garfield in cross-examination of Felicia Chambers, that Chambers was making up a story about a silver chain in order to protect her daughter, having regard to evidence of a white plastic chain with Shakeil’