CITATION: R. v. Jha, 2015 ONSC 1640
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015 03 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Andrea Esson and Jill Prenger for Her Majesty the Queen
- and -
NANDINI JHA
Dirk Derstine and Sharon Jeethan, Counsel for Ms. Jha
HEARD: March 6, 2015
Ruling on Directed Verdict Application
PUBLICATION BAN Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Baltman J.
Introduction
[1] In September 2011 three year old Niyati Jha sustained a massive brain injury as a result of a blunt force trauma to her skull. She was admitted to the Sick Children’s Hospital in Toronto in a coma and died shortly thereafter.
[2] After a lengthy investigation by Peel Regional Police, Niyati’s mother, Nandini Jha, was charged with second degree murder. On September 12, 2013, the accused was committed for trial on second degree murder by Justice Atwood of the Ontario Court of Justice. Her certiorari application to quash her committal for trial, brought in September 2014, was dismissed by Justice Herold of this Court. On that application the accused sought to overturn the committal solely for second degree murder, conceding there was sufficient evidence to commit her on the charge of manslaughter.
We are now in the midst of the accused’s trial before a jury. At the close of the Crown’s case the accused applied for a directed verdict on both second degree murder and manslaughter. On March 11, 2015 I ruled that the application shall be dismissed in its entirety, with reasons to follow. These are my reasons.
Factual Allegations
[3] The Jha family moved to Canada from India in 2010. Mr. Jha worked full time and Mrs. Jha, the accused, managed the house and looked after the children. Niyati’s older sister, S.J., was attending school full time by the time of this incident.
[4] Mr. Jha testified that when he arrived home from work on August 17, 2011, the accused told him that a bookcase had fallen on Niyati. At that point she was asleep but when he saw her the next morning one side of her face was black and blue. Although she was behaving normally and did not complain of pain, he and his wife took her to a walk in clinic. The attending physician did not observe anything alarming. According to Mr. Jha, on that evening and in the days following, Niyati behaved normally and did not complain of pain.
[5] On September 20, 2011 the accused telephoned Mr. Jha at work and told him she could not wake Niyati. He had seen her that morning before he left for work and she seemed normal. Mr. Jha came home and found Niyati asleep. He could not rouse her and so they took her to a walk in clinic. It was quickly apparent to the attending physician that she was unconscious and suffering from a serious head injury. She was rushed by ambulance to Trillium Hospital in Brampton and later transferred to Sick Children’s Hospital in Toronto. She was declared brain dead the next day, two days shy of her 4th birthday.
[6] When questioned by first responders and attending physicians as to what had preceded Niyati’s collapse, the accused had no explanation other than to refer to the bookcase that allegedly fell on Niyati one month earlier.
[7] Ritihka Gogia, who lived upstairs from the Jha family, testified about an occasion where Niyati was playing with the Gogia children in their home. When Mrs. Gogia questioned Niyati about a mark she observed on her face, Niyati replied “My mum hit me”. Mrs. Gogia also testified that on another occasion she overheard Niyati say to her mother “Mom, I will be a good girl. I will listen to you, but you won’t hit me, right?”
[8] Because of those incidents and various other observations that troubled her, Mrs. Gogia spoke to a teacher at Niyati’s school, who in turn alerted the Children’s Aid Society. After an investigation the CAS concluded there was no basis for concern and closed their file.
[9] Constable Andrew Kastelic, an expert in the analysis of blood stain patterns, testified that he found a multitude of small blood stains on five different walls in the Jha apartment, including all four walls of Niyati’s bedroom and the wall in a corner of the dining area of the Jha apartment. Most of the blood stains were Niyati’s blood; a small number were the accused’s blood.
[10] On September 23, 2011, pathologist Dr. Charis Kepron performed an autopsy on behalf of the Ontario Forensic Pathology Service. She reported that Niyati died of a blunt impact head injury, superimposed on healing skull fractures and multiple other injuries of varying ages. Dr. Kepron found that Niyati had both recent skull fractures and older, healing skull fractures which extended nearly all the way around her head. The fractures to the frontal bone and to the skull base were recent, i.e. had occurred within hours of Niyati’s death, and were not superimposed on older healing fractures. All the other recent skull fractures were re-fractures, that is new fractures on top of healing ones.
[11] Dr. Kepron concluded that Niyati’s head injuries were caused by the application of blunt force. Since there were recent and healing fractures, and recent and older bleeding on the surface of the brain, there must have been at least two episodes of head injury. There may have been more than two.
[12] Dr. Kepron was able to date the injuries based on the length of time normally required to produce the evidence of healing of the fractures that she observed on autopsy. In her opinion, the two (or more) episodes of head injury would have been weeks to a small number of months apart. In other words, the older fractures occurred within weeks or a small number of months of Niyati’s death.
[13] Dr. Kepron testified that significant force would have been required for both the old and new fractures, and that they are not injuries typically seen in 4 year old children. The older fractures wrapped all the way around her head and branched into multiple skull bones. The recent fracture to the skull base caused so much brain swelling that brain tissue was leaking out of Niyati’s left ear.
[14] Dr. Kepron also identified many other bruises, scars and fractures on Niyati’s body. In particular she noted both recent and healing multiple bruising on the upper arms and thighs, and healing fractures of the 11th rib and the 2nd thoracic vertebrae, all of which were uncommon injuries in a young child.
[15] Dr. Kepron testified that all of the injuries on Niyati’s head and body were blunt force injuries, that is caused by the application of blunt force. She agreed that any one of them could have been caused by a fall or an accidental impact. In her opinion, however, the number, pattern, and location of the injuries raised concern for inflicted injury, that is trauma at the hands of another person.
[16] Dr. Kepron also testified that because the skull had been compromised already by the earlier fractures it was difficult to say what level of force was applied to Niyati’s head immediately before she collapsed; nonetheless, it was significant.
[17] Dr. Emma Cory, a pediatrician at the Suspected Child Abuse and Neglect Unit at Sick Children’s Hospital in Toronto, testified that when Niyati arrived at that hospital it was immediately apparent that she had suffered a severe brain injury. She registered 4 out of 15 on the Glasgow Coma Scale, with the lowest possible score being 3. She had sustained extensive swelling of her brain to the point that it was pushing down through the base of her skull and protruding out her left ear.
[18] Dr. Cory testified that a complex skull fracture is a very uncommon injury in a child Niyati’s age, except in cases of high velocity injury such as high speed car accidents or falls from several stories. She testified that it is extremely rare to see a complex skull fracture or a severe brain injury caused by a simple fall.
[19] Dr. Cory allowed that the earlier skull fractures would have weakened the skull so that less force would have been required to fracture it the last time. She testified however that very significant force would have been required to cause the severe brain injuries that killed Niyati. She stated that this kind of injury was “really really unusual” for most 4 year olds.
[20] Dr. Cory testified that Niyati had more bruises than a typical, mobile 4 year old, and that some of them were on her abdomen, upper arms, and the cushioned part of her thigh, unusual locations that raise concern for inflicted injury. She stated that the bruising arose from multiple applications of force in different areas. She explained that while individually they could arise by accident, their multitude was unusual for typical accidental injuries in children of Niyati’s age.
[21] Dr. Cory investigated the possible medical causes for Niyati’s injuries, including any illnesses or pre-existing metabolic conditions, and found none.
[22] Dr. Cory concluded that the multitude of injuries seen in Niyati, their different locations, and the presence of both recent and healing injuries raised concern for intentional injury. She received no accidental explanation that could account for the totality of the findings. Dr. Cory had been told that a bookcase had fallen on Niyati approximately one month before her death; she stated that while she could not rule that out as the cause of an older skull fracture, she found it “hard to imagine” how a falling bookcase could account for all the older injuries. Moreover, as that fracture was so complex, its symptoms would likely have been significant and noticeable had medical attention been sought.
[23] In sum, both Dr. Kepron and Dr. Cory agreed that the totality of Niyati’s injuries was very unusual in a 4 year old child, and the presence of multiple injuries of varying ages raised suspicion for inflicted trauma. And both testified that a child who suffered the older or recent complex skull fractures seen in Niyati would be expected to experience immediate and obvious signs of distress such as pain and swelling of the scalp, with other possible symptoms ranging from dizziness and vomiting through to lethargy and unconsciousness. Although the child in question would certainly feel pain, whether or not she expressed it would vary depending, in part, on how her caregivers had reacted to previous expressions of pain.
[24] Importantly, they also agreed that while the penultimate blow on September 20th, 2011 may have involved less force than the older head injuries, it was still significant.
[25] The third medical expert who testified was Dr. David Ramsay, a neuropathologist. He concluded that Niyati had suffered both a recent head and brain injury and at least one older head and brain injury. He testified that the older injuries may have been caused by one or more impacts, on one or more occasions, and that the recent fatal head injuries could also have been caused by one or more impacts, separated by a few minutes.
[26] Dr. Ramsay testified that “significant and substantial force” would have been required to cause the older head injuries. That force would have been recognized as potentially harmful to Niyati by anyone observing it. He thought it strange that a child could sustain fractures of this severity and not require hospital care.
[27] He also thought the recent head injury was both severe and inevitably fatal. Although he could not say whether that injury resulted from a fall or a blow, it resulted in such extensive brain swelling that no medical treatment, no matter how rapid, could have saved her.
[28] Critically for this motion, it is virtually unchallenged that the accused had exclusive opportunity to inflict the injuries sustained by Niyati. She was Niyati’s primary caregiver and no other person was ever alone with Niyati.
Legal Framework
[29] The legal framework is well established. The Supreme Court in Sheppard pronounced that a court will leave a charge to be decided by a jury where there is sufficient evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at 1080. See also R. v. Monteleone, [1987] 2 S.C.R. No. 154; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679.
[30] In a jury trial, it is not the function of the trial judge to weigh the evidence or draw inferences of fact from the evidence adduced; these functions are for the jury: Monteleone, para. 8. However, when evaluating whether sufficient evidence exists to commit a person to trial, the presiding judge must bear in mind the persuasive burden of “beyond a reasonable doubt. In R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 50, the Supreme Court cited with approval the following passage from the dissent of Justice McLachlin (as she then was) in R. v. Charemski:
…”sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient’ always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case. [Emphasis added]
[31] For that reason, in cases involving circumstantial evidence a trial judge may be required to engage in a “limited weighing” of the evidence to determine whether, if the Crown’s evidence were believed, it would be reasonable for a properly instructed jury to infer guilt. Where competing inferences may be available from the evidence, those most favorable to the Crown must be drawn: Arcuri, p. 839; R. v. Dwyer, 2013 ONA 368, para. 4.
Submissions and Analysis
[32] The starting place for whether there is evidence upon which a reasonable jury could convict is an examination of the essential elements of the crimes charged. This should be followed by a review of the evidence adduced by the Crown in respect of each element. The relevant time period in which to assess the evidence is set out in the indictment: “a 3 month period, last, past and ending on or about the 20th day of September, 2011…”
[33] Dealing first with the lesser and included offence of manslaughter, to obtain a conviction the Crown must establish that the accused:
a) Committed an unlawful act; and
b) The unlawful act caused Niyati’s death.
[34] The defence does not seriously dispute that there is evidence upon which a jury could conclude that within the three months preceding Niyati’s death the accused committed an unlawful act against her, namely assault. The medical evidence is clear that Niyati sustained numerous injuries that may have been deliberately inflicted, and it is virtually conceded that the accused had the exclusive opportunity to do so.
[35] Mr. Derstine argues, however, that there is no evidence upon which a jury could reasonably conclude that such injuries caused Niyati’s death. He notes that none of the expert witnesses could say “definitively” whether the blunt force trauma that caused Niyati’s death was intentional or accidental.
[36] What Mr. Derstine ignores is that at this stage the Crown need only point to evidence that is capable of supporting guilt. That the Crown has done, as all three of its experts opined that the fatal injuries resulted from the application of a “significant” force. The accused was the only one present at the critical time and there is no evidence of any accident. On that basis it is open to the jury to conclude that the accused administered the fateful blow(s).
[37] Mr. Derstine further argues that there is no evidence with respect to the mechanism of the blunt force that caused Niyati’s death; the experts cannot say whether it was caused by an impact to the head, the head impacting on a surface, or a crushing mechanism to the head.
[38] That objection is irrelevant, as the Crown isn’t required to establish precisely how the accused killed Niyati, only that she did so by means of some kind of unlawful act. It might be through blows administered by hand, or with the aid of a weapon. Or it might be by throwing or slamming her against the wall or a hard object. The mechanism does not matter, as long as it was unlawful and resulted in Niyati’s death: see R. v. Stewart, 2003 NSCA 150, para. 30.
[39] I therefore conclude that there is sufficient evidence upon which a jury could base a finding of manslaughter.
[40] The next issue is whether there is evidence to support a charge of second degree murder. Section 229(a) of the Criminal Code sets out that culpable homicide is murder where the person who causes the death of a human being:
i. means to cause her death, or
ii. means to causes her bodily harm that she knows is likely to cause her death and is reckless whether death ensues or not.
[41] In other words, second degree murder is the act of manslaughter accompanied by the necessary state of mind. In this case the presence of intent is more challenging, because according to the medical experts there may have been only one blow during the event that triggered Niyati’s collapse. However, there is other evidence which could arguably persuade a jury that the accused at least knew that what she was doing was likely to cause death and was reckless as to whether Niyati died or not. In particular, the evidence permits the following reasonable inferences:
• In the weeks and months leading up to her death Niyati sustained numerous serious injuries at different times and in different locations on her body;
• Collectively, the number, pattern, nature and varying ages of the injuries indicate they were deliberately inflicted;
• The accused had the exclusive opportunity to inflict these injuries;
• On at least two occasions within the three months preceding Niyati’s death the accused hit her in the head hard enough to cause extensive, complex skull fractures and brain injury;
• Both head injuries likely produced immediate and obvious symptoms of distress;
• On the day she sustained the fatal head injury, Niyati appeared normal in the morning before her father departed for work and left her in her mother’s care;
• Between the time her father departed (8.00 a.m.) and when the accused called him to report that Niyati could not be woken (11:00 a.m.), Niyati sustained a very serious head injury while in the sole care of the accused.
[42] Key to this case is that the critical blows were to Niyati’s head, the most vulnerable part of a child’s body. Moreover, they were hard hits, which caused profound damage. And they occurred on more than one occasion. Those facts alone leave it open to the jury to conclude that when the accused assaulted Niyati on September 20th she knew that death would likely result, but proceeded nonetheless.
[43] I recognize that the Crown’s case is entirely circumstantial. And as there may have been only one or two blows administered on the fatal occasion it is not clear that the accused meant to kill Niyati. But collectively the evidence allows the jury to infer the necessary intent for murder under the second prong of s. 229(a); they could reasonably conclude that anyone who strikes their child in the head hard enough to cause these kinds of injuries not only meant to harm her, but also knew that her actions were likely to cause death. In other words, the natural consequence of that act was that her daughter might die. See R. v. Seth [2001] O.J. No 2322 (C.A.), para. 101; R. v. Streeter 2013 ONSC 1952, para. 78; R. v. Olubowale [2001] O.J. No. 961 (C.A.).
[44] For those reasons the application is dismissed in its entirety.
Baltman J.
Released: March 25, 2015
CITATION: R. v. Jha, 2015 ONSC 1640
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015 03 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NANDINI JHA
Ruling re: Directed Verdict
Baltman J.
Released: March 25, 2015
