CITATION: R. v. Munoz-Hernandez, 2015 ONSC 243

COURT FILE NO.: 028/12

DATE: 2015/01/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONNY MUNOZ-HERNANDEZ

L. Bird & A. Rourke, for the

Crown

P. Rochman, for the Defendant

REASONS FOR JUDGMENT

garton j.:

[1] The accused, Ronny Munoz-Hernandez, age 25, is charged with the second degree murder of Adriel Garcia, who was 5 ½ months old when he sustained a fatal brain injury. He died two months later after he was taken off life support. I presided over the accused’s jury trial, at the end of which the jurors failed to reach a unanimous verdict and a mistrial was declared. Rather than proceeding with a second jury trial, the Crown and defence counsel asked that I decide the case based on the evidence heard at the first trial. Mr. Munoz-Hernandez re-elected to have his trial heard by a judge sitting without a jury. Transcripts of the evidence and counsels’ jury addresses were prepared. Counsel also made further submissions.

[2] For the reasons that follow, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Munoz-Hernandez inflicted Adriel’s fatal brain injury. However, I am not satisfied that the Crown has established the requisite mens rea for second degree murder. The accused is, accordingly, found not guilty of second degree murder but guilty of the lesser and included offence of manslaughter.

BACKGROUND AND OVERVIEW

[3] Mr. Munoz-Hernandez and Adriel’s mother, Jessica DaSilva, arrived with Adriel at the Hospital for Sick Children on Sunday, September 12, 2010, at around 12:00 p.m. Adriel had multiple bruises on his abdomen, buttocks, and penis. He was unconscious. A CT scan revealed the presence of a subdural hemorrhage on the right side of his brain and severe brain swelling. Despite surgery to relieve the pressure on his brain, Adriel suffered severe brain damage. He died on November 9, 2010, after life support was withdrawn. The pathologist who performed the autopsy concluded that the cause of death was complications from head injury.

[4] The expert testimony of the six medical witnesses indicates that Adriel’s head injury was caused by shaking, blunt force trauma, or a combination of shaking and blunt force trauma.

[5] Mr. Munoz-Hernandez and Ms. DaSilva were the only two people who had the opportunity to inflict the fatal injuries on Adriel.

[6] Both the Crown and defence counsel submit that whoever caused the bruising to Adriel’s body is also responsible for the fatal head injury. According to the medical evidence, bruises cannot be accurately dated. The medical experts could therefore not say whether the bruises on Adriel’s body occurred at the same or at different times.

[7] Dr. Michael Taylor, the neurosurgeon who performed a bilateral craniectomy on Adriel and removed the subdural hemorrhage, “guessed” that the hemorrhage was probably somewhere between 8 to 12 hours old, but it could be 15 hours or up to a day old. The medical testimony did not rule out either Mr. Munoz-Hernandez or Ms. DaSilva in terms of their window of opportunity to inflict the fatal injuries. Mr. Munoz-Hernandez had babysat Adriel from about 8:30 a.m. on September 11 to 3:00 a.m. on September 12, when Ms. DaSilva arrived home after attending a wedding.

Overview of Crown’s case

[8] The Crown submits that Ms. DaSilva had no motive to assault her son when she got home in the early hours of the morning. On both Ms. DaSilva’s and Mr. Munoz-Hernandez’s version of events, Adriel was asleep at that time. Ms. DaSilva had no reason to rouse him, let alone strike or shake him.

[9] The position of the Crown is that Adriel had no bruises when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care on the morning of September 11. The Crown submits that Mr. Munoz-Hernandez caused all of Adriel’s injuries sometime between 8:24 p.m., when an acquaintance, Arlinton Munoz-Gomez, left the accused’s apartment, and prior to 11:07 p.m., when the accused’s friend, Jhon Molina, arrived. Mr. Munoz-Hernandez had been babysitting Adriel the entire day – something that he had never done before. He was inexperienced in caring for Adriel or any other infant. The Crown submits that at some point, the accused “lost it” and not only inflicted the bruises to Adriel’s body but also struck his head or shook him or did both.

[10] The Crown submits that after the assault, Adriel began to demonstrate some of the early symptoms that may, according to the medical evidence, be associated with a brain injury. Adriel appeared to be generally unwell. Jhon Molina observed that Adriel was fussy and appeared to be uncomfortable. Worried about the consequences of the assault and Adriel’s condition, Mr. Munoz-Hernandez began preparing bottles of warm water to put beside him. When Jhon asked him what he was doing, Mr. Munoz-Hernandez stated that he thought Adriel was feeling sick and was a little cold. When Jhon took Adriel out of his stroller, he noticed bruises on his side. Mr. Munoz-Hernandez told him that Adriel had fallen from a bed a few days earlier. The Crown submits that that was a lie: there was no such fall.

[11] Prior to going to bed that night, Mr. Munoz-Hernandez moved Adriel’s playpen beside his mattress. The Crown submits that he did this so that he could monitor Adriel’s condition more closely. According to Ms. DaSilva’s evidence, Mr. Munoz-Hernandez checked on Adriel on two occasions the following morning. The first time, Adriel appeared to be fine. The second time, the baby was unresponsive and appeared to be in a coma. Mr. Munoz-Hernandez woke up Ms. DaSilva and told her that they had to get him to the hospital. They left for the hospital five or ten minutes later.

[12] The Crown relies on the evidence of Ms. DaSilva, who testified that upon seeing the bruises to Adriel’s body on the morning of September 12, demanded to know what had happened and what he had done. Mr. Munoz-Hernandez just kept repeating that he did not know and that he was scared. He also told her to make up a story for the police: to tell them that “Clara”, a fictitious person, had been babysitting Adriel. Ms. DaSilva initially told the police the “Clara” story. However, she later returned to the police station and told them the truth – that is, that Mr. Munoz-Hernandez was the person who was babysitting Adriel that day.

[13] The Crown relies on the evidence of Arlinton Munoz-Gomez, who testified that the accused told him that he used to put spicy sauce on Adriel’s lips, put him in the fridge, and put him in a cold tub because he was a cry baby. The Crown submits that these comments demonstrate the accused’s animus towards Adriel, or intolerance for his crying. Mr. Munoz-Hernandez denied making the comments.

[14] The Crown relies on the indifference that Mr. Munoz-Hernandez showed towards Adriel on September 11 by leaving him alone in the apartment on three separate occasions, for a total of four-and-a-half hours. Mr. Munoz-Hernandez left the apartment to have a manicure, to buy curtains, to check out cell phone plans, and to buy marijuana. When Arlinton asked Mr. Munoz-Hernandez why he had left Adriel alone, Mr. Munoz-Hernandez faked a laugh and told him that he was a strong kid and that he could handle it.

[15] The Crown relies on after-the-fact conduct. On September 13, 2010, Mr. Munoz-Hernandez fled the province and went to Montreal, where he obtained false identification papers and lived under an assumed named for ten months. He returned to Toronto on July 16, 2011, and turned himself in to police at 53 Division.

Overview of position of the defence

[16] The position of the defence is that Ms. DaSilva’s evidence is neither credible nor reliable. Defence counsel submits that she caused the fatal injuries when she arrived home from the wedding in an intoxicated state in the early hours of the morning on September 12.

[17] Mr. Munoz-Hernandez testified that he did not volunteer to look after Adriel on September 11, as alleged by Ms. DaSilva. Rather, Ms. DaSilva insisted that he babysit: she feared that if anyone else looked after Adriel, they would report her to the Children’s Aid Society because Adriel had bruises at that time. Mr. Munoz-Hernandez testified that he refused to babysit Adriel but had no choice when Ms. DaSilva walked out of the apartment around 10:00 a.m., leaving him with the baby. She said she would be back but did not return until 3:00 a.m. on September 12.

[18] Mr. Munoz-Hernandez testified that when he changed Adriel’s diaper around noon on September 11, he observed what appeared to be a pinch mark on the lower right side of his abdomen, and redness to his buttocks and penis.

[19] Mr. Munoz-Hernandez testified that around 11:00 p.m., and just before Jhon arrived, he took Adriel into the shower with him. As he was stepping out of the bathtub, he slipped and dropped the baby, who fell onto the floor. Initially, Mr. Munoz-Hernandez was quite worried about him, but he managed to settle him down and he appeared to be fine, except for a red mark on the back of his head.

[20] The defence does not allege that the fall in the shower caused Adriel’s fatal brain injury. The defence does not rely on the defence of accident. The position of the Crown is that Mr. Munoz-Hernandez fabricated the shower incident: if it had really happened, Mr. Munoz-Hernandez would have told Jhon about it when Jhon noticed the bruises on Adriel. Instead, Mr. Munoz-Hernandez mentioned a fall from a bed that had taken place days earlier. The position of the defence is that if Mr. Munoz-Hernandez made up the shower incident, he could have made it sound much more serious and relied on it as the cause of Adriel’s fatal brain injury.

[21] The position of the defence is that Adriel’s fussiness and discomfort, as observed by Jhon, do not amount to anything more than the behaviour of a normal baby who was uncomfortable and wanted to be taken out of his stroller. Adriel was fine when Mr. Munoz-Hernandez put him to bed. Mr. Munoz-Hernandez moved the playpen into the living room so that he could hear Adriel if he cried, and because he was feeling lonely.

[22] Mr. Munoz-Hernandez testified that when Ms. DaSilva arrived home at 3:00 a.m., she became angry after he insulted her and criticized her for coming home so late. She angrily moved the playpen in which Adriel was sleeping from the living room to the bedroom and slammed the door. Mr. Munoz-Hernandez went back to sleep. In the morning, Ms. DaSilva woke him up and told him that something was wrong with Adriel, who was unconscious. Mr. Munoz-Hernandez told her that they had to get him to a doctor. Ms. DaSilva initially refused to go because she did not want to get into trouble. They finally left the apartment ten minutes later and took a taxi to the hospital. Mr. Munoz-Hernandez denied telling Ms. DaSilva a story to tell the police, and testified that “Clara” was entirely her invention.

[23] Mr. Munoz-Hernandez explained that he left the province because he panicked. He was afraid that he would not be believed or treated fairly because he was not originally from Canada. He hoped that someone would catch Ms. DaSilva in a lie. When that did not happen, he decided to return to Toronto and surrendered to the police.

[24] The testimony of both Ms. DaSilva and Mr. Munoz-Hernandez was problematic in a number of areas. Crown counsel acknowledges that Ms. DaSilva’s evidence alone would not support a conviction and that a Vetrovec analysis is appropriate. Ms. DaSilva’s evidence must be examined very carefully. However, the Crown submits that there is confirmatory evidence which, when considered along with Ms. DaSilva’s testimony, establishes the accused’s guilt beyond a reasonable doubt.

[25] Mr. Munoz-Hernandez and his brother, David, testified for the defence. Mr. Munoz-Hernandez denied ever hitting or shaking Adriel.

[26] The principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply.

EVIDENCE

Testimony of Jessica DaSilva

Relationship with Adriel’s father

[27] Jessica DaSilva met Adriel’s father through a Chatroom on the Internet when she was 15 or 16 years old. The father was from Mexico and living illegally in the United States. According to Ms. DaSilva, she made three trips to Texas to visit him. Each trip lasted about a month. The first trip was in the summer of 2008. The second was in June 2009, during which time she got pregnant. The third trip was in December 2009, when she was about six months’ pregnant. Ms. DaSilva and Adriel’s father never made any plans regarding the child and intended to discuss such matters only after the baby was born. The father never came to Canada to visit his son.

[28] Ms. DaSilva testified that her mother was ambivalent about her relationship with Adriel’s father. She understood that Ms. DaSilva liked him but disapproved generally of the situation. She was unaware of the father’s illegal status in the United States. Ms. DaSilva and her mother argued. Ms. DaSilva eventually moved out of her home and got her own apartment for the months of September, October, and November 2009. When she returned from her December 2009 trip to Texas, she gave up that apartment and moved into her grandparents’ house. She explained that her grandmother did not want her to have the baby on her own.

[29] Ms. DaSilva testified that she continued taking her Grade 10 and 11 courses during January 2010. She stopped attending school in February and March. Adriel was born on March 22, 2010. According to Ms. DaSilva, she returned to school within a week of his birth. Her grandmother took care of the baby while Ms. DaSilva attended class from 9:00 a.m. to 2:00 p.m. The school term continued until the end of June 2010. It was Ms. DaSilva’s intention to return to school in September 2010.

Adriel’s health

[30] Ms. DaSilva testified that Adriel was a healthy, happy baby who did not cry much and who appeared to be developing normally. Her doctor, Dr. Choi, examined him within 72 hours of his birth and again at the age of two months, when Adriel received his first vaccination. Dr. Choi did not express any concerns about Adriel’s health or well-being.

[31] Prior to September 11, 2010, Ms. DaSilva was not aware of Adriel having suffered any falls or sustaining any injuries.

[32] Ms. DaSilva acknowledged that she never took Adriel back to the walk-in clinic for his second vaccination, which was supposed to take place at the age of 4 months. Adriel was four months old on July 22. She testified that she planned to take him to the clinic on September 13.

[33] Ms. DaSilva had no explanation for the 50-day delay in having Adriel vaccinated, but was clear that it was not because she did not care about her baby or because he had any bruises.

Relationship with Mr. Munoz-Hernandez

[34] Ms. DaSilva testified that she first met Mr. Munoz-Hernandez when she was six months’ pregnant, around December 2009/January 2010. She was visiting her friend, Walter Pinieros, who lived with his brother, Jefferson, his younger sister, Shannon, and their mother, Ruby, in an apartment on the 23rd floor at 15 Martha Eaton Way. She understood that Mr. Munoz-Hernandez and Walter were friends. In September 2010, at the time of Adriel’s admission to hospital, Walter was in jail.

[35] Ms. DaSilva testified that she initially saw Mr. Munoz-Hernandez about two times a week at the Pinieros’ apartment, which was only a five-minute walk from her grandparent’s house. She and Mr. Munoz-Hernandez talked a lot and about everything, but did not communicate with one another outside of the apartment. They did not exchange telephone numbers.

[36] After about two months, Ms. DaSilva and Mr. Munoz-Hernandez became somewhat closer. They exchanged numbers and began to “hang out” with each other at places other than the Pinieros’ residence.

[37] After Adriel’s birth, Ms. DaSilva always took him with her when she went to the Pinieros apartment. Her first visit there after his birth was when he was two or three weeks old. Mr. Munoz-Hernandez was present at that time.

[38] When Adriel was two-and-a-half or three months old, Ms. DaSilva’s relationship with Mr. Munoz-Hernandez developed into one of boyfriend/girlfriend. They would go for walks, to shopping malls, or out to dinner. Adriel was always with her during these excursions. Both she and Mr. Munoz-Hernandez had cell phones at the time.

[39] Ms. DaSilva knew that Mr. Munoz-Hernandez was from Colombia and had permanent resident status in Canada. She knew very little about his background or why he had come to Canada, although he had told her that his father had been murdered in Colombia.

[40] After they became boyfriend/girlfriend, Ms. DaSilva began spending nights at the one-bedroom apartment on Erskine Avenue where Mr. Munoz-Hernandez lived with his brother, David. Ms. DaSilva and David subsequently became very good friends and were quite close.

[41] Eventually, Ms. DaSilva moved out of her grandmother’s house and into David’s apartment. Adriel was about 4 months old by that time. Ms. DaSilva denied that her grandmother kicked her out. She testified that she moved out because living with Mr. Munoz-Hernandez was a priority in her mind.

[42] According to Mr. Munoz-Hernandez and David, Ms. DaSilva moved into David’s apartment when Adriel was only a couple of weeks old, which would have been in early April 2010. Her grandmother had kicked her out of the house and she had no place to go. David agreed to let her stay until his wife and son arrived from Colombia. Both Mr. Munoz-Hernandez and David testified that Ms. DaSilva was not going to school during the entire time that they knew her.

[43] Ms. DaSilva testified that when she stayed overnight at David’s apartment, Adriel slept on a mattress with her and Mr. Munoz-Hernandez. She would put two or three pillows beside him. As far as she was aware, Adriel never fell out of bed. After she moved into David’s apartment, she and Mr. Munoz-Hernandez slept on a mattress on the living room floor and Adriel slept in his playpen beside the mattress.

[44] Ms. DaSilva testified that she never asked Mr. Munoz-Hernandez to babysit Adriel, feed him or change his diapers. She was content to do all these caregiving tasks herself. However, Mr. Munoz-Hernandez would pick up Adriel and play with him.

[45] Ms. DaSilva only asked Mr. Munoz-Hernandez to babysit Adriel on one occasion. Adriel was about 3 months old at the time. Ms. DaSilva and David went out for about 4 hours. Adriel was asleep when she left and appeared to be fine upon her return home.

[46] There were other occasions when Mr. Munoz-Hernandez was alone with Adriel; for example, when Ms. DaSilva was taking a shower.

[47] Ms. DaSilva denied various scenarios put to her in cross-examination that suggested she was sometimes indifferent to Adriel’s needs. For example, she denied that on one occasion, she left Adriel at David’s apartment without telling him that she was going out, and that David only discovered she was gone when Adriel woke him up in the middle of the night. She denied that David criticized her when they were at a barbeque for leaving Adriel unattended in his car seat on the floor and in the presence of people who were drinking. She denied giving Adriel water when she ran out of formula and that David, in response, ran out and purchased formula for the baby.

[48] Ms. DaSilva did recall David telling her that if she ever needed help with Adriel, “we’re always here.”

[49] According to Ms. DaSilva, Mr. Munoz-Hernandez told her that they would raise Adriel together but expressed concern and was scared that Adriel would eventually return to his father. Mr. Munoz-Hernandez also told her that he wanted to have a child with her. When Ms. DaSilva responded that she only wanted one child and that Adriel was that child, Mr. Munoz-Hernandez would “stay quiet” or just walk away. She testified that she made it clear to him that Adriel was her first priority and the most important person in her life. She loved Adriel; she cared for the accused. Mr. Munoz-Hernandez told her that he wanted to make a life with her. When asked if he ever told her that he loved her, Ms. DaSilva stated, “Not really.”

[50] David Munoz’s apartment became quite crowded for a two or three-week period when his uncle, the uncle’s wife and their two children arrived from Colombia. Ms. DaSilva testified that the crowded conditions did not really bother her. After the uncle and his family moved out, David’s wife and child moved in. When David’s wife had an argument with Mr. Munoz-Hernandez over his smoking of marijuana on the balcony, and demanded that he move out, Ms. DaSilva and Mr. Munoz-Hernandez rented Unit 1912 at 15 Martha Eaton Way. They had been thinking of moving out for some time in any event so that they “could move on” with their lives, but had not made a final decision. Ms. DaSilva testified that she had applied to have Adriel accepted into daycare so that she could return to school in September.

The arrest on the charge of theft

[51] Ms. DaSilva testified that while she was living at David’s place, she and Mr. Munoz-Hernandez were arrested and charged with theft. [The date of the occurrence report is May 22, 2010.] She was released after about an hour. One of the terms of her release was that she not have any contact with Mr. Munoz-Hernandez. Mr. Munoz-Hernandez was released two days later with a similar “no contact” provision. Ms. DaSilva was aware that she was in violation of her bail condition by continuing to live with Mr. Munoz-Hernandez at David’s apartment.

[52] Sometime prior to September 2010, Ms. DaSilva and Mr. Munoz-Hernandez were stopped by police while driving to the hospital to visit David, who had been in a serious car accident. [David testified that the accident occurred on July 20, 2010, and that he was in the hospital for about a month.] The police discovered that they were in breach of their bail terms. Ms. DaSilva and Mr. Munoz-Hernandez explained that they were on their way to the hospital to visit Mr. Munoz-Hernandez’s brother. The police did not lay criminal charges but warned them that they could be arrested and go to jail if they were caught again violating their bail conditions. Despite this warning, Ms. DaSilva and Mr. Munoz-Hernandez continued to live together at David’s apartment. They also signed the lease for Unit 1912 and moved there on September 9. Ms. DaSilva testified that she did not think that the police would check up on them or find out about their living arrangements.

Sleeping arrangements at Ms. DaSilva’s father’s home

[53] Prior to moving into Unit 1912, Ms. DaSilva and Mr. Munoz-Hernandez spent two days at Ms. DaSilva’s father’s house. Ms. DaSilva was estranged from her father but he was content to have her stay at his place in his absence. He was in the Philippines at the time.

[54] Ms. DaSilva testified that Adriel slept widthwise on her sister’s double bed at her father’s home. She placed him on his back and put a pillow on either side of him. When he awoke in the morning, he was in the same position. She denied the suggestion that at some point, she heard a thud and, upon entering the bedroom, discovered that Adriel had fallen out of bed.

[55] Adriel, who was 5 ½ months old, was able at that time to roll over from front to back. He could sit up but needed the support of a pillow behind him. His neck was strong enough that he could hold up his head on his own. He could hold his bottle with two hands while he was in his bouncy chair or lying on his back. The only solid food he ate was oatmeal cereal.

Natasha Cardoza

[56] Ms. DaSilva testified that after Adriel was two months old, her close friend, Natasha Cardoza, babysat him about four or five times in order to give Ms. DaSilva some time to herself or to let her rest. Ms. DaSilva would drop off Adriel at Natasha’s place, which was in the Dufferin and St. Clair area. Ms. DaSilva had known Natasha since 2008. The last time Natasha babysat Adriel was about five or six weeks prior to September 10, 2010.

The move to the apartment at 15 Martha Eaton Way on September 9, 2010

[57] Ms. DaSilva adopted as correct the placement of the furniture in the apartment as it is depicted in the police diagram, which was prepared after Adriel was admitted to the hospital on September 11, 2010. The playpen was in the bedroom. The air mattress, where she and Mr. Munoz-Hernandez slept, was in the living room. There was no landline in the apartment. Neither she nor Mr. Munoz-Hernandez had a cell phone.

[58] On Thursday, September 9, Ms. DaSilva cleaned the apartment and did the usual chores associated with moving into a new place. Adriel was with her throughout the day. There was nothing unusual about his routine, including his two daily naps. Ms. DaSilva bathed and fed him as usual. She put him to bed in his playpen around 9:00 or 10:00 p.m., which was his usual bedtime.

[59] On Friday, September 10, Ms. DaSilva was in the middle of dying Mr. Molina-Hernandez’s hair when her cousin, Ashley Martins, dropped by unexpectedly. They had a quick visit, during which Adriel was in his bouncy chair. Ashley was staying at Ms. DaSilva’s grandmother’s house. It was agreed that Ms. DaSilva would meet Ashley there the next morning and they would get ready for the wedding together. Ms. DaSilva did not recall any other parts of her conversation with Ashley during this visit. This was the first and only time that Ashley met Mr. Munoz-Hernandez.

Babysitting arrangements for Adriel on the day of the wedding

[60] Ms. DaSilva testified that she did not plan to take Adriel to the wedding because she did not want to expose him to loud music. She agreed that loud music would not be an issue at the church ceremony. She agreed that she could have taken him to the church and then brought him back home after the ceremony and before she went to the reception.

[61] Ms. DaSilva testified that earlier that week, she had spoken to Natasha, who agreed to look after Adriel while she was at the wedding. Ms. DaSilva was to take Adriel to Natasha’s apartment by bus. No specific time was mentioned. Ms. DaSilva was to call Natasha on Saturday morning using her grandmother’s or Ashley’s telephone. Ms. DaSilva would pick up Adriel after the wedding, which she anticipated would be about 2:00 a.m. She and Adriel would then take the bus home. She did not want to leave Adriel with Natasha overnight.

[62] Ms. DaSilva testified that when she woke up Adriel on Saturday morning, he was happy and responsive. She did not see any marks or bruises on his body as she bathed, changed and dressed him.

[63] Ms. DaSilva acknowledged testifying at the preliminary hearing in August 2012 that she could not recall whether she bathed Adriel that day. She stated that she now recalls giving him a bath because she has had time to go through in her mind what happened that day. However, she could not recall the clothes that she dressed him in. Adriel ate a normal breakfast. She packed up his things for the day and placed him in the car seat, which fit into the stroller.

[64] Ms. DaSilva testified that Mr. Munoz-Hernandez then asked her to leave Adriel with him, stating that he did not want Adriel to be on a bus so late at night. Ms. DaSilva took him up on his offer. She testified that she felt it would be safe to let Mr. Munoz-Hernandez babysit Adriel since he had suggested it. This would be only the second time that Mr. Munoz-Hernandez had looked after Adriel.

[65] Ms. DaSilva did not consider asking Ashley, who had the use of her mother’s car, if she could drive her to Natasha’s place after the wedding, thereby avoiding the problem of having to take the bus with Adriel at 2:00 a.m.

[66] Ms. DaSilva did not ask Mr. Munoz-Hernandez what he planned to do that day. She did not specifically tell him that if he needed help with anything regarding Adriel, he should call her sister, Izilda, who was not attending the wedding. She assumed that he “just knew to do that.”

[67] In cross-examination, Ms. DaSilva was shown a photograph of a note in her handwriting with three names – Izilda, Natasha, and “Natasha-Marks” – and their respective telephone numbers. She could not recall leaving these numbers with Mr. Munoz-Hernandez that day. When asked why she would not have simply given Mr. Munoz-Hernandez Ashley’s cell phone number, since she planned to be with Ashley all day, Ms. DaSilva stated that if he needed to contact her, he could call Izilda and Izilda would call Ashley.

[68] Ms. DaSilva denied the suggestion that it was her idea that Mr. Munoz-Hernandez look after Adriel. She denied the suggestion that the reason she could not take Adriel to the wedding or to Natasha’s place was because Adriel already had marks and bruises on him at that point. She denied ever getting frustrated with Adriel and pinching and biting him or causing him to be bruised. Ms. DaSilva also denied the suggestion that Mr. Munoz-Hernandez told her that he was not prepared to stay home with Adriel and babysit him for the day.

[69] Ms. DaSilva left the apartment at 8:30 a.m. Adriel was in his bouncy chair and appeared “perfectly fine” when she left. Ms. DaSilva walked to her grandmother’s house. Ashley was asleep. Ms. DaSilva woke her up. Ashley testified that she was not expecting Ms. DaSilva to arrive so early as they had agreed the night before to meet at 10:00 a.m. Ms. DaSilva testified that she did not recall having agreed on that time. She could not recall what time the wedding was supposed to take place. The church ceremony was 11:00 or 12:00 p.m. and the reception was at night.

[70] Ms. DaSilva testified that she used Ashley’s cell phone to text-message Natasha that she no longer needed her to babysit Adriel that day. She believed that Natasha returned the text. She denied trying to reach Natasha on the telephone. Ms. DaSilva was clearly wrong about the timing of these text messages. She did, in fact, text message Natasha around noon that day and told her that she no longer needed her to babysit. However, the text messages that she sent to Natasha’s boyfriend, Mark, at 9:27 a.m. and 9:44 a.m. indicate that at that point, she still wanted Natasha to babysit Adriel.

[71] In the text message to Mark at 9:27 a.m., Ms. DaSilva stated that she had called him from her grandmother’s house. She asked him to answer as she needed to speak to Natasha because “I have a wedding today and the church is at 12.” At 9:44 a.m., Ms. DaSilva again asked Mark, via a text message, to tell Natasha to please text her “as soon as she can.”

[72] Natasha did not respond to these messages until 12:01 p.m., when she sent a text message stating that she had just woken up and asked her where she was. At 12:03 p.m., Ms. DaSilva texted Natasha: “I’m at the church lol its ok I got my cousin to babysit thank you so much though we will see each other on tues or wed okk baby.” At 12:05 p.m., Natasha responded, “Aw forreal :( .” At 12:05 p.m., Ms. DaSilva texted Natasha again: “Yeaa. I really had to go to the church.”

[73] When asked if she was at the church when she sent these messages, Ms. DaSilva stated that she could not recall. She did not recall whether she went to the church ceremony but stated that “if I texted, I must have.” She did not know why she told Natasha that her cousin was babysitting Adriel.

Ms. DaSilva and Ashley drive to Tim Horton’s at 15 Martha Eaton Way

[74] Sometime later that morning, Ashley and Ms. DaSilva drove to the Tim Horton’s at 15 Martha Eaton Way, where they bought breakfast. As a surprise, Ms. DaSilva also bought breakfast for Mr. Munoz-Hernandez and took it up to him. Ashley waited downstairs. Ms. DaSilva did not invite Ashley to go up with her. Ashley testified that she did not want to go up to the apartment in any event.

[75] When Ms. DaSilva walked into the apartment, Mr. Munoz-Hernandez was on the mattress on the floor. Adriel was in his bouncy chair. There were no visible marks on him. Ms. DaSilva played with him for a bit, then hugged and kissed him good-bye, telling him that she loved him.

[76] Ms. DaSilva did not recall Mr. Munoz-Hernandez saying anything while she was in the apartment. When she returned to the Tim Horton’s, Ashley, who was a little annoyed, told her she had been gone for 28 minutes. They ate breakfast and then drove to her Uncle Jack’s home, where she picked up her dress. They stopped at Dollarama to buy a wedding card and then returned to her grandmother’s house, where they got ready for the wedding.

[77] According to a text message sent by Ashley, she and Ms. DaSilva were at their Aunt Liz’s place at 4:24 p.m., where they waited to be driven to the wedding reception.

[78] Ms. DaSilva testified that it did not occur to her, prior to leaving for the reception, to pick up Adriel and take him to her grandmother’s house to show him off to her relatives. She testified that she exercised bad judgment by not returning to the apartment to check up on Adriel, but was firm in her assertion that her failure in this regard did not mean that she did not care for Adriel or that she had harmed him in any way.

Attending the wedding

[79] In her examination-in-chief, Ms. DaSilva testified that sometime that afternoon, she, her grandmother, Ashley, and Ashley’s mother went to the church and then later attended the reception, which started at 4:30 p.m. She left the reception at 1:30 a.m. A photograph taken from the surveillance cameras at 15 Martha Eaton Way shows her arriving home at 3:08 a.m.

[80] In cross-examination, Ms. DaSilva indicated some uncertainty as to whether she attended the church ceremony. It is clear from Ashley’s testimony that they did not go to the church.

[81] Ms. DaSilva could not recall telling people at the reception that her cousin, Cassandra, was babysitting Adriel. If she had done so, it was because her family would have been upset if they learned that she had left Adriel with someone who was not his father. She explained that some of her relatives did not know that she was living with Mr. Munoz-Hernandez. She agreed that at the preliminary hearing, she testified as follows:

Q. Is there any reason why you wouldn’t have told people that you’d left the baby with Ronny?

A. No.

Q. That wasn’t something you were concerned about in any way? Or ashamed of in any way?

A. No.

[82] Ms. DaSilva agreed with the suggestion that she was not concerned and had no reason to lie about Mr. Munoz-Hernandez babysitting Adriel.

[83] Ms. DaSilva had no contact with Mr. Munoz-Hernandez throughout the day. If she could have reached him by telephone, she would have called him. She had never been away from Adriel for such a long period of time. However, if there was a problem, her sister could have reached her by calling Ashley’s cell phone. Ms. DaSilva and Ashley were together throughout the day.

Alcohol consumed

[84] Ms. DaSilva testified that she consumed six drinks – two shots of Tequila and four rum and cokes – between 4:30 p.m. and 1:30 a.m. She kept track of what she drank because she knew that she “had to get back to my son.” She was not drunk when she left the wedding reception. She testified that Ashley probably drank a bit more than she did and that Ashley was drunk.

[85] Ashley testified that she and Ms. DaSilva consumed the same amount of alcohol, which was more than five drinks. Although they were both pretty intoxicated, they were “still walking and stuff like that. We were just having a good time.” They had to wait about 45 minutes for their aunt, who was the designated driver, to take them home.

The return to the apartment

[86] Ashley testified that their aunt stopped at a gas station so that Ms. DaSilva could use the washroom. Ms. DaSilva had no recollection of making such a stop.

[87] Ms. DaSilva did not remember having a conversation with her aunt about where Adriel was. However, Ashley testified that Ms. DaSilva told her aunt that Adriel was at the apartment, and that the aunt knew or would have realized that Mr. Munoz-Hernandez was babysitting him.

[88] Ms. DaSilva went directly up to the apartment. After putting her keys in her bag, she checked on Adriel, who was asleep in his playpen.

[89] In her examination-in-chief, Ms. DaSilva testified that she could not recall where the playpen was located when she got home. Crown counsel then showed her the police diagram of the apartment, which indicates that the playpen was in the bedroom. Ms. DaSilva adopted the diagram as correct. However, a little later on in her evidence-in-chief, when Ms. DaSilva was asked to describe what woke her up in the morning, her description of events indicated that the playpen was beside the mattress in the living room.

[90] Ms. DaSilva recalled that she was awakened when Mr. Munoz-Hernandez got off the mattress and that he checked on Adriel by looking into the playpen. Had the playpen been in the bedroom, she would not have been able to see it from the mattress (see exhibits 1 and 40(b)). Ms. DaSilva testified as follows:

Q. What woke you up in the morning?

A. Ronny had gotten off of the air mattress.

Q. Where did he go?

A. To check on Adriel.

Q. Did you get up to check on Adriel at that point?

A. No.

Q. Did Mr. Munoz-Hernandez pick Adriel up and bring him to you?

A. No.

Q. So when you say he went to check on him, what do you mean?

A. He just went to look over the playpen.

Q. Did he say anything to you after he had done that?

A. No.

Q. Did he express any concern to you about Adriel?

A. No.

Q. Did he tell you whether Adriel was awake or asleep or what he was doing?

A. No.

Q. What did you do after Mr. Munoz-Hernandez checked on Adriel?

A. I asked if he was okay.

Q. And what did Mr. Munoz-Hernandez say?

A. He said yes, he’s fine.

Q. What did you do then?

A. I went back to sleep.

Q. And what did Mr. Munoz-Hernandez do?

A. The same as well.

[Emphasis added]

[91] Ms. DaSilva agreed in cross-examination that she told the police during her second interview that the playpen was in the living room when she got home. She told the police:

Q. Where do you, and where do you find them?

A. Adriel was in his playpen and Ronny was sleeping in the blow-up bed.

Q. Okay those, the playpen and the blow-up bed are found where in the apartment?

A. Um, like in the living room. Well, usually I put Adriel in the room but Ronny had put him, had changed the – Ronny had put Adriel’s playpen beside the bed, the blow-up bed. And then that’s where he stayed.

Q. Is the playpen and what’s going on with the playpen?

A. Nothing, Adriel is just sleeping inside there.

Q. He’s in there and how do you know those things?

A. Because when I walk in, I can already see right away that Ronny is sleeping there and I sleep beside Ronny and I went to go give a kiss to Adriel I see that he was in the playpen.

[92] Ms. DaSilva testified that she was telling the truth when she spoke to the police about the location of the playpen when she got home but, given her state of mind at the time, she could have been mistaken. If she was wrong, it was an honest mistake. [Mr. Munoz-Hernandez testified that he moved the playpen into the living room before he went to bed.]

[93] Ms. DaSilva did not recall how the playpen got moved from the living room to the bedroom, which is where it was when the police executed the search warrant. She denied that she moved it, and had no recollection of Mr. Munoz-Hernandez moving it back to the bedroom. She denied picking up Adriel from the playpen, or striking him or shaking him in anger or frustration.

[94] Ms. DaSilva testified that assuming the playpen was in the living room, she had no reason to move it to the bedroom. Adriel was asleep and was, at that time, regularly sleeping through the night.

[95] Ms. DaSilva agreed that she told the police that she kissed Adriel when she got home and that she was telling the truth at that time. At the preliminary hearing and at trial, she could not recall kissing him, although she got quite close to him. At the preliminary hearing, she stated that she “hadn’t gone all the way to where the playpen was but I was pretty close to where I could see that he was breathing.” She testified in a similar vein at trial: Adriel was on his back. She could see his chest going up and down and he appeared to be fine. It was too dark to see his features. She could only see half his face.

[96] Ms. DaSilva testified that she spent less than a minute with Adriel. She then got changed and went to bed on the air mattress. The only comment that Mr. Munoz-Hernandez made to her was that she had arrived home late. He did not accuse her of being drunk. He said nothing to her about having fallen with Adriel or that Adriel had been injured accidentally.

Sunday, September 12, 2010

[97] Ms. DaSilva testified that she woke up on Sunday morning when Mr. Munoz-Hernandez got up to check on Adriel. When he came back to bed, he did not say anything. Ms. DaSilva asked if Adriel was okay. Mr. Munoz-Hernandez replied that he was fine. They then both went back to sleep.

[98] At some point, Mr. Munoz-Hernandez got up again to check on Adriel. By this time, it was light out. Mr. Munoz-Hernandez told her that they had to get Adriel to the hospital. He did not say why. Ms. DaSilva got up and went to Adriel, who was on his back in the playpen. He appeared to be sleeping. When she picked him up, she noticed a light mark on his nose, like a scratch or carpet burn. There were no other injuries to his face.

[99] Adriel did not wake up when Ms. DaSilva put him down on the mattress. His body was heavy. He was unresponsive and not moving. When she took off his clothes and diaper, she noticed bruises under his belly button and on his penis. There were marks on his back or side. She had never seen these marks before. She described a mark on his lower right side as looking like a bite mark. It was red with a little bit of purple. There were bruises around and on his penis. He had had no problems in that area of his body before.

[100] Ms. DaSilva described herself as upset, scared, and confused. When she asked Mr. Munoz-Hernandez what had happened, he said that he did not know and that he was scared. He did not say why he was scared. Ms. DaSilva repeatedly asked him in a loud voice, “What happened? What did you do?” She was crying. Mr. Munoz-Hernandez just kept repeating, “I don’t know. I don’t know” and “I’m scared.”

[101] Ms. DaSilva testified that Mr. Munoz-Hernandez has never explained to her what happened or suggested that someone else hurt Adriel.

[102] Ms. DaSilva gathered together Adriel’s things, got his bag, and put him in his stroller. As she did so, Mr. Munoz-Hernandez was getting some of his things together and was walking back and forth. On their way to the elevator, he told her a story that she was to tell the police. It was he who first mentioned the police. He also said that he was scared to go to jail. Ms. DaSilva did not ask him why.

[103] It was suggested to Ms. DaSilva in cross-examination that she made no mention during her police interview that Mr. Munoz-Hernandez had told her he was scared of going to jail. However, in re-examination, she confirmed that she told the police: “He told me he was really scared and that he wanted me to just tell you guys one story because he didn’t want to get arrested.”

[104] Ms. DaSilva testified that Mr. Munoz-Hernandez told her that she should tell the police that “Clara” had been babysitting Adriel while she was at the wedding. Ms. DaSilva did not know a “Clara.” The other details that Mr. Munoz-Hernandez provided to her regarding this story included the following: Clara was 23 years old, from Mexico, and lived in the area of St. Clair and Dufferin. Clara had dropped off Adriel that morning. Adriel was in this condition when Ms. DaSilva took him out of Clara’s car.

[105] Ms. DaSilva testified that these were the only details that Mr. Munoz-Hernandez gave her and that everything else she told the police about Clara was made up by her. She agreed that at the preliminary hearing, she testified that all the details she told the police about the fictional Clara came from Mr. Munoz-Hernandez.

[106] Ms. DaSilva did not respond to Mr. Munoz-Hernandez’s suggestion or ask him why she should tell the police this story. She testified that her focus was on getting her son to the hospital as soon as possible. She did not consider calling 911. Her intention was to take Adriel to the Hospital for Sick Children because she felt that was the best place for him. She was afraid that he was going to die. He remained unresponsive. He was able to inhale but was having difficulty exhaling.

[107] Ms. DaSilva and Mr. Munoz-Hernandez took a taxi to the hospital. The taxi surveillance photographs, which were taken between 11:32 and 11:44 a.m., show Ms. DaSilva and Mr. Munoz-Hernandez in the back seat of the cab. Ms. DaSilva, who is holding Adriel in her arms, is clearly focused on him. She testified that she was crying at the time. In one photograph (exhibit 3(b)), she is wiping a tear from her eye. She testified that she did not talk to Mr. Munoz-Hernandez, who appears to be looking out the rear passenger window and away from Adriel (exhibit 3(d)).

[108] In cross-examination, Ms. DaSilva denied that she was the one who woke up first, discovered that Adriel was unconscious, and then tried to give him a bottle. She denied that Mr. Munoz-Hernandez was telling her to hurry up and that they had to get to the hospital as soon as possible.

[109] Ms. DaSilva agreed that before leaving for the hospital, she took time to change Adriel’s diapers and his outfit despite his obviously serious condition. She testified that she did so because his clothing was wet with milk, which she noticed when she took him out of the playpen and moved him to the mattress. She also changed his clothes and diaper because she wanted to see what else was wrong with him. It did not take her long to change him because there was some clothing right beside the mattress. She denied taking her time. They left the apartment within five or ten minutes.

Arrival at the Hospital for Sick Children

[110] Ms. DaSilva went into the hospital while Mr. Munoz-Hernandez paid for the taxi. Adriel was immediately taken to another room by the emergency staff. Ms. DaSilva was present when the doctors drained blood from his head. At some point, she was told that he required emergency brain surgery, and that he had only a few hours to live. While she was in the waiting room, a chaplain attended to give her support. Ms. DaSilva wanted Adriel baptized before he died. The chaplain assured her that that could be done. None of her family members had as yet arrived at the hospital.

[111] Mr. Munoz-Hernandez came into the waiting room as Ms. DaSilva was speaking to the chaplain. In her examination-in-chief, Ms. DaSilva testified that they did not speak to each other and that Mr. Munoz-Hernandez left after about five minutes. Ms. DaSilva did not know where he went. She never saw or heard from him again.

[112] In cross-examination, Ms. DaSilva agreed that in her second police interview, she stated that she and Mr. Munoz-Hernandez did, in fact, speak while they were in the waiting room and that he told her: “Don’t say anything, don’t say anything to the police.” In re-examination, she testified that she also told the police that after the chaplain left, Mr. Munoz-Hernandez told her that he was really scared and that she should “say my story and stuff like that.”

[113] Ms. DaSilva told the “Clara” story to hospital staff. She acknowledged that she did that on her own, without specific instructions from Mr. Munoz-Hernandez. He had only told her to tell the story to the police.

[114] Ms. DaSilva gave her consent to the doctors in the emergency room to contact the police. At some point, the police and Children’s Aid Society workers arrived at the hospital. Ms. DaSilva understood that their role was to protect Adriel. She testified that she had no concerns about either the police or Children’s Aid Society being involved in the situation. She had nothing to hide.

Statements to the police

[115] While at the hospital, at around 2:30 p.m., Ms. DaSilva told the “Clara” story to P.C. Littlejohn, who recorded her statement in his notebook as follows:

She left Adriel with a friend, Clara Ramos, the day before. When Clara brought him back home, Ms. DaSilva met her in the lobby. When DaSilva picked up Adriel from his stroller after returning to her apartment, Adriel’s head flopped towards his back and he had no control over his body. Up until that point, she thought he had been sleeping. His eyes were half closed. When she changed his diaper, she noticed bruises.

Clara was 23 years old, 5 feet 3 to 5 feet 4 inches tall, 120 pounds, and skinny, with straight dark brown hair. She was from Mexico and spoke with an accent. She lived alone. Ms. DaSilva did not know her address. Her telephone number was 416 – 526-5863.

Ms. DaSilva had known Clara for 3 years. She and Ms. DaSilva used to work together as cleaners at the Nestle building at Sheppard and Yonge. Clara had babysat Adriel on three previous occasions.

[116] Ms. DaSilva did not deny making this statement, although she currently has no recollection of it.

[117] According to an agreed statement of fact, Ms. DaSilva agreed to accompany the police to 52 Division around 4:12 p.m. She arrived there at 4:55 p.m. Her statement, which was given under oath, began at 5:42 p.m. Ms. DaSilva was warned by the officer conducting the interview that it was a criminal offence to obstruct justice by making a false statement to police during an investigation. She was also told that it was important that the police know the truth as to how Adriel had sustained his injuries.

[118] Ms. DaSilva lied to the officers and told them the “Clara” story. She explained that she was scared and confused. Her family members – her mother, Ashley, and Ashley’s mother – had not as yet arrived at the hospital. She felt alone. Mr. Munoz-Hernandez had told her what to say and she just went with it. She explained: “At the time, I was just – I didn’t understand what was happening … Ronny had told me the story and I was just confused as to why or what was happening or … I just was filled with emotions.” She knew at the time that Adriel was expected to die, but she was still hoping that he would live.

[119] During the interview, Ms. DaSilva told the police that she had taken a bus to St. Clair and Dufferin around 2:00 p.m. on Saturday and left Adriel with Clara at a convenience store, where Clara was waiting for her. She kissed Adriel goodbye and took the bus back to her grandmother’s house. The wedding started at 6:00 p.m.

[120] Ms. DaSilva told the police that Clara dropped off Adriel at 15 Martha Eaton Way the next day and honked her horn to let Ms. DaSilva know that she had arrived. Ms. DaSilva went down to meet her and kissed her on the cheek. Clara, who was in a hurry, took Adriel out of the car while Ms. DaSilva grabbed his bag from the trunk. Clara told her that Adriel should eat in an hour. Adriel’s face was covered with a blanket. It was not until Ms. DaSilva was back in her apartment that she saw the bruises and realized he had no control over his arms and legs.

[121] Ms. DaSilva told the police that she used the telephone of a friend on the 14th floor to call Clara six times but Clara’s phone wasn’t working. She then went outside and took a taxi to the hospital.

[122] Ms. DaSilva told the police that the last time Clara babysat Adriel prior to September 11 was three weeks earlier. Adriel was fine when she returned him to her on that occasion.

[123] Ms. DaSilva told the police that she and Clara were “really close”, would hang out together and “do stuff like going to Wonderland.” Clara did not talk about her friends, other than her boyfriend, Joshua. She did not know Joshua’s last name. Clara attended school at Loretta Abbey. She was from Acapulco and in Canada illegally. She was on welfare.

[124] Ms. DaSilva’s physical description of Clara during her videotaped interview was similar to what she told the officers at the hospital. However, further details were added: Clara’s hair was layered. She always wore her hair down. She was always getting her nails done. She had fake nails. She was a bit of a tomboy and always wore running shoes. She never wore makeup. Her teeth were really straight, her eyes were dark brown and she had really long eyelashes.

[125] In cross-examination, Ms. DaSilva acknowledged that she was good at telling stories.

[126] At the end of the interview, at 6:54 p.m., Ms. DaSilva was asked if there was anything that she had told the police that she wanted to change. Ms. DaSilva stated, “Nothing whatsoever.”

[127] According to Ms. DaSilva, she returned to the hospital five or ten minutes after completing her statement. She felt “horrible” about lying to the police and knew it wasn’t right. It became clear to her at that point that Adriel did not have much time to live and she wanted to tell the truth for him. She therefore called the police, told them that she wanted to speak to them again, and returned to 52 Division. She was re-interviewed and this time told the truth.

[128] Ms. DaSilva’s recollection of when she returned to the hospital after the first interview, and when she went back to the police station for the second interview, was not at all accurate. She also had no recollection of what happened in between those two events. It is reasonable to infer that her memory in this regard was affected by her coming to grips at that time with the news that Adriel’s death may be imminent, by the trauma of the ensuing nine weeks, and by his death when the decision was made to withdraw life support.

[129] According to the agreed statement of facts, Ms. DaSilva did not return to the hospital five or ten minutes after her first interview. Rather, she was escorted to the cafeteria at the police station at 7:50 p.m., where she remained in the company of P.C. McCormack from about 8:00 p.m. to 10:50 p.m., or for almost three hours. Ms. DaSilva had no recollection of spending that period of time at the police station.

[130] At 10:50 p.m., Det. Sgt. Terry Brown approached Ms. DaSilva. He told her that Adriel had been placed in the care of the Children’s Aid Society and that she could not return to her apartment because it was being held for a search warrant. He also told her that he had reviewed her statement and had concerns about her inability to provide more information about Clara. Ms. DaSilva had no recollection of these events. Ms. DaSilva was then escorted downstairs, where other family members were present. She and Ashley Martins, who had been interviewed by the police from 8:27 p.m. to 9:33 p.m., left 52 Division together around 11 p.m. Just before midnight, the police received information that Ms. DaSilva wished to be re-interviewed.

[131] Ms. DaSilva testified that she was unaware at the time of her second police interview that Ashley had given a statement to the police.

[132] In cross-examination, it was suggested to Ms. DaSilva that she did know that Ashley had spoken to the police and that that information, plus the caution from Det. Sgt. Brown, made her realize that the “Clara” story was not going to fly. She therefore decided to switch to the “Ronny” story, which was why she called the police back after she returned to the hospital. Ms. DaSilva responded to these suggestions by stating that she went back to the police station to tell the truth.

[133] During her second interview, which commenced at 1:16 a.m. on September 13, Ms. DaSilva told the police that Mr. Munoz-Hernandez was babysitting Adriel while she was at the wedding. She did not attempt to portray Mr. Munoz-Hernandez in a negative light. She stated that she and Mr. Munoz-Hernandez had a good relationship and that they were very close. Adriel loved Mr. Munoz-Hernandez, who would attend to him while she was in the shower, and change his bib if it was dirty. If Adriel was crying while in her lap, Mr. Munoz-Hernandez would take him, kiss him and tell him that he loved him. Ms. DaSilva confirmed in her testimony that all these statements were true.

[134] Ms. DaSilva also agreed that her testimony at the preliminary hearing regarding Mr. Munoz-Hernandez’s relationship with Adriel was true: Mr. Munoz-Hernandez never showed any anger or frustration towards Adriel when Adriel cried, even when he cried in the middle of the night and woke them up. She never saw Mr. Munoz-Hernandez raise his voice or yell or threaten Adriel in any way.

After September 12, 2010

[135] Ms. DaSilva remained at the Hospital for Sick Children for nine weeks. She ate all her meals there and slept in the waiting room. Eventually, the decision to remove Adriel from life support was made. He died in Ms. DaSilva’s arms on November 9, 2010.

[136] In cross-examination, Ms. DaSilva was asked whether she recalled the following exchange between herself and a nurse on September 28, when a baby was crying in the hospital: Ms. DaSilva asked the nurse, “Doesn’t that give you a headache?” The nurse responded, “That’s what babies do.” Ms. DaSilva had no recollection of this exchange, which was recorded by the nurse.

[137] Ms. DaSilva testified that although she exercised bad judgment on September 11 by not taking Adriel with her to her grandmother’s house or going back to see him before she went to the wedding, her lack of judgment was not due to any lack of caring on her part for her son.

Testimony of Ashley Martins

[138] Ms. DaSilva and Ashley Martins described their relationship as very close. They are second cousins. Although Ashley lived in Strathroy, they maintained regular contact with each other. Ashley was Adriel’s godmother.

Contact with Adriel

[139] Ashley testified that prior to September 2010, she had contact with Adriel on a number of occasions:

1. She first saw Adriel in April 2010 when she visited Ms. DaSilva at her grandmother’s house. Adriel was one-and-a-half weeks old at the time. There were also three or four other visits to the grandmother’s house where Ashley saw Adriel.

2. Ms. DaSilva and Adriel stayed with Ashley at her home in Strathroy for a week when Adriel was about one month old.

3. When Adriel was two or three months old, Ashley came to Toronto for a weekend to shop for a trailer. She saw Adriel and Ms. DaSilva at their Uncle Jack’s house.

4. Ashley came to Toronto on August 21, 2010, and stayed overnight at David Munoz’s apartment. David and his wife and son were present but Mr. Munoz-Hernandez was not. The next morning, Ashley took Adriel out of his crib and changed his diaper. She did not observe any bruises on him. Ms. DaSilva’s mother babysat Adriel while Ashley and Ms. DaSilva visited Canada’s Wonderland. They later picked him up and brought him home. Ashley then returned to Strathroy.

Ms. DaSilva had no recollection of Ashley’s visit, which was just three weeks prior to the day that Adriel sustained his fatal head injuries. She did not recall going to Wonderland or leaving Adriel with her mother.

[140] Ashley described Adriel as a happy and easy going baby and Ms. DaSilva as an affectionate, loving, and “natural” mother.

Visit to the apartment on Friday, September 10, 2010

[141] Ashley paid a surprise visit to Ms. DaSilva and Mr. Munoz-Hernandez’s apartment on Friday, September 10, at about 8:00 p.m. She stayed for only about ten minutes as her mother and aunt were waiting for her in the parking lot.

[142] This was the first time that Ashley had met Mr. Munoz-Hernandez. Ashley described the meeting as rather awkward. Mr. Munoz-Hernandez, who had hair dye all over his forehead, was not very friendly towards her. There was no conversation between them.

[143] Ashley testified that Adriel was in his bouncy chair. He was awake and had his hands in his mouth. He was wearing a short-sleeved shirt, pyjama bottoms, and socks. Ashley could see his face, neck, and forearms. She knelt or bent over him and said, “Hi baby.” He smiled. Ashley stood back up. She did not see any marks on Adriel.

[144] Ashley and Ms. DaSilva discussed the wedding and their plans for spending time together the next day. Ashley asked Ms. DaSilva to spend the night with her at her grandmother’s house. Ms. DaSilva refused the invitation and suggested that Ashley stay with her. Ashley, having noted the sparse furnishings and the fact that there was no place for her to sleep, declined the offer.

[145] Ashley assumed that Ms. DaSilva would bring Adriel to the wedding. There was no discussion during her Friday night visit about a babysitter or leaving Adriel with Mr. Munoz-Hernandez.

Saturday, September 11, 2010

[146] When Ms. DaSilva arrived at her grandmother’s house the next morning, Ashley asked her where Adriel was. Ms. DaSilva told her that he was with Mr. Munoz-Hernandez and that Natasha would be babysitting him while they were at the wedding. Ashley heard Ms. DaSilva trying to reach Natasha using her grandmother’s landline. There was no answer. Ms. DaSilva texted Natasha multiple times using Ashley’s cell phone. Ashley saw those messages, including the one at 9:27 a.m., where Ms. DaSilva told Mark that she needed to speak to Natasha because “the church is at 12.” Ashley testified that she and Ms. DaSilva never discussed going to the church and that they, in fact, did not go to the church ceremony.

[147] Ashley testified that prior to going to the Tim Horton’s at 15 Martha Eaton Way, she and Ms. DaSilva were waiting for Natasha to get back to them. Ashley, who had the use of her mother’s car, offered to drive Adriel to Natasha’s. There was no discussion between her and Ms. DaSilva regarding picking up Adriel after the wedding.

[148] After arriving at Tim Horton’s, Ashley waited for Ms. DaSilva while she went up to the apartment to take breakfast to Mr. Munoz-Hernandez. Ms. DaSilva did not ask her to come along. However, Ashley did not want to go up to the apartment in any event. When Ms. DaSilva returned, she told her that Ms. Munoz-Hernandez wanted to stay with Adriel.

[149] Ashley agreed that on September 12, she told the police:

So we went to the Tim Horton’s near her building and we got breakfast and a coffee and she got two sandwiches and two coffees and she’s like, oh, I’m just gonna go bring this up to him. And she took like half an hour to come back down. And again I asked her, I’m like, where’s, cause I thought the plan was for Adriel to come back down with her so that I could drop Adriel off at this girl Tasha’s house. And she’s like no, no, he’s gonna stay with him for a little bit longer. It’s fine, like once we get ready, we’ll come back and like see Adriel for a bit.

[150] Ashley testified that the statement refreshed her memory and that she was being truthful when she spoke to the police. She acknowledged using the words, “a little bit longer.” However, she testified that she had further conversation with Ms. DaSilva after that, and questioned her as to why Adriel would not be staying with Natasha. Ashley testified that by the time they left Tim Horton’s, her understanding was that Mr. Munoz-Hernandez wanted to stay with Adriel and that he would be looking after him for the day.

[151] Ashley was aware of the text messages that were exchanged around noon between Natasha and Ms. DaSilva after they returned to the grandmother’s house from Tim Horton’s. She saw Ms. DaSilva’s text message to Natasha at 12:03 p.m., stating that they were “at church lol” and that she had gotten her cousin to babysit. She also saw the text message at 12:05 p.m., where Ms. DaSilva told Natasha, “Yeaa. I really had to go to the church.” Ashley never questioned Ms. DaSilva as to why she told Natasha that she was at church and that her cousin was babysitting Adriel. Ashley figured that Ms. DaSilva trusted Mr. Munoz-Hernandez and that it was more convenient to have him look after Adriel because Natasha lived some distance away.

[152] Ashley testified that they were ready for the wedding by noon or 1:00 p.m. As a result of some conflict with Ms. DaSilva’s grandfather, they walked to their Uncle Jack’s place, where they waited for her cousin, Liz, to pick them up. Liz then drove them to her house, where they remained for an hour before leaving for the wedding reception. They arrived at the reception at 4:30 p.m.

[153] Ashley testified that at the reception, her mother and aunts asked Ms. DaSilva where Adriel was. Ms. DaSilva told them that he was with her cousin, Cassandra. Ashley did not ask her why she said this or attempt to correct her. Ashley was of the view that Ms. DaSilva’s family would not have been happy to hear that Adriel was being cared for by a man. She testified that she knew members of her family would certainly not be “a hundred percent happy with Adriel staying with a man.”

[154] Ashley testified that Ms. DaSilva did tell the aunt who drove them home that night that Adriel was at the apartment. The aunt would therefore have been aware that Mr. Munoz-Hernandez was babysitting him.

[155] Ashley testified that during the reception, Ms. DaSilva mentioned multiple times that she wished she had a way of getting hold of Mr. Munoz-Hernandez to see how Adriel was doing.

[156] Ashley testified that she did not find out that Adriel was in the hospital until about 3:00 p.m. on Sunday when she was at her Uncle Jack’s barbeque. She and her mother went to the hospital, where Ashley approached a police officer. She later attended at 52 Division, where she was interviewed by police from 8:30 p.m. to 9:30 p.m. As stated earlier, the agreed statement of facts indicates that Ashley and Ms. DaSilva left the police station together at 11:00 p.m. and returned to the hospital. It was around midnight when Ms. DaSilva contacted the police and indicated that she wished to be re-interviewed.

Testimony of Jhon Molina

[157] In September 2010, Jhon Molina was living at 15 Martha Eaton Way with his grandmother and little sister. He had met Mr. Munoz-Hernandez about a year earlier in a park where they played soccer. They became good friends, would “chill” and go to parties together. Jhon was 18 years old at the time of this incident.

[158] Jhon met Ms. DaSilva through Jefferson Pinieros about six or seven months prior to September 2010. Ms. DaSilva spent time at the Pinieros apartment and was friends with Walter and Shannon. Jhon also saw her at the park where he played soccer.

[159] Jhon estimated that he saw Adriel about ten times prior to September 2010. Adriel was usually with Ms. DaSilva. Jhon would see them in the lobby of 15 Martha Eaton Way. He had held Adriel on occasion. Adriel appeared to be a normal healthy baby. Prior to September 11, Jhon had never observed any bruises or marks on him. Ms. DaSilva appeared to be a good mother.

[160] Jhon testified that he saw Ms. DaSilva on at least two occasions when she was not with Adriel. He had seen her at parties without the baby.

[161] Jhon had, on occasion, observed Mr. Munoz-Hernandez with Adriel when Ms. DaSilva was not present. Mr. Munoz-Hernandez was good with him and attentive to his needs. Jhon never saw him get angry or upset with Adriel when he was crying; rather, he would try to settle him down. Mr. Munoz-Hernandez bought clothes, shoes, hats and other items for Adriel.

Events on September 11, 2010

[162] Video surveillance cameras at 15 Martha Eaton Way indicate that on September 11, Mr. Munoz-Hernandez left Adriel alone in the apartment on three separate occasions: on the first occasion, he had a manicure; on the second occasion, he shopped at a mall; on the third occasion, he walked to Emmett Avenue to purchase some marijuana.

[163] Jhon accompanied Mr. Munoz-Hernandez on all of these outings. Arlinton Munoz-Gomez went with them to the mall and to Emmett Avenue. The video surveillance captured their various comings and goings from the apartment.

[164] For ease of reference, I have set out below the evidence of not only Jhon, but also that of Arlinton and Mr. Munoz-Hernandez with respect to these outings.

i) The trip to a plaza for a manicure

[165] Video surveillance shows Jhon and Mr. Munoz-Hernandez leaving the apartment at 11:15 a.m. and returning at 11:44 a.m. During that half-hour interval, Mr. Munoz Hernandez had a manicure at a nearby plaza.

[166] After the manicure, Jhon and Mr. Munoz-Hernandez returned to the apartment building and went up to the penthouse to look for a friend. The friend was not home. They then went back outside to a store, where Mr. Munoz-Hernandez purchased some curtains for the apartment. Jhon accompanied him home and stayed for about five minutes. Jhon did not see Adriel and was unaware that the baby was in the apartment.

[167] Mr. Munoz-Hernandez testified that he prepared a bottle for Adriel before leaving for the manicure. Adriel did not finish the bottle and appeared to be tired. Mr. Munoz-Hernandez put him in the playpen, where he fell asleep. He was still asleep when Mr. Munoz-Hernandez left the apartment with Jhon. Mr. Munoz-Hernandez agreed that leaving Adriel on his own was not a responsible or mature thing to do.

ii) The trip to the Lawrence Mall

[168] Video surveillance shows Jhon and Arlinton Munoz-Gomez entering the apartment at 2:24 p.m. Eight minutes later, at 2:32 p.m., Jhon, Arlinton and Mr. Munoz-Hernandez left and took a bus to the Lawrence Mall. Mr. Munoz-Hernandez returned home by himself at 4:33 p.m. Adriel was alone in the apartment during that two-hour interval.

[169] Jhon testified that he wanted to have a piercing done at the mall that day. He and Arlinton went to Mr. Munoz-Hernandez’s apartment and asked him if he wanted to come along. Mr. Munoz-Hernandez agreed to go and took a few minutes to get ready. Jhon was still unaware that Adriel was in the apartment.

[170] The bus trip to the mall was about 30 or 40 minutes. Mr. Munoz-Hernandez did not stay with Jhon during the piercing but went to check out cell phone plans. He also bought some food. He later joined Jhon and Arlinton and they all took the bus back to 15 Martha Eaton Way.

[171] Arlinton testified that he had never been in Mr. Munoz-Hernandez’s apartment prior to September 11. He recalled attending there for a few minutes before leaving for the mall and asking Mr. Munoz-Hernandez where Ms. DaSilva was. Mr. Munoz-Hernandez told him that she was at a wedding party. He did not appear to be frustrated or upset about her absence. Arlinton assumed that Adriel was with Ms. DaSilva.

[172] Mr. Munoz-Hernandez agreed in his testimony that when Jhon and Arlinton came by his apartment unexpectedly around 2:30 p.m., he made no mention of his having been left to look after Adriel for the day. He explained that he did not know Arlinton that well. Adriel was asleep in his playpen in the bedroom when he left to go to the mall. He was wearing clothing in addition to his diaper as it was a cold day. In the video surveillance footage, Mr. Munoz-Hernandez is seen wearing a jacket as he walked down the hallway towards his apartment after returning from the mall.

iii) The trip to Emmett Avenue

[173] Later that afternoon, Jhon decided to go to Emmett Avenue and went up to Mr. Munoz-Hernandez’s apartment to see if he wanted to go with him. The surveillance video shows Jhon entering the apartment at 4:48 p.m. As Jhon walked in, he saw Adriel in a stroller. Adriel appeared to have just woken up. His eyes were open. He was not making any sounds. He was wearing only a diaper. Jhon did not see any marks on him. He had a bottle but did not want to drink from it.

[174] Jhon agreed that during his police interview on September 15, 2010, he described Adriel as “dressed” when he saw him on this occasion. He testified, however, that his current recollection is that Adriel was wearing only a diaper, although at one point he stated that he was not sure:

Q. Okay. And I’m going to suggest that what he was wearing was a blue and white outfit and that’s how he was sitting in the -- he was sitting in the car seat when you came in that time. Do you remember that?

A. Yeah, that’s when I saw him and he was boiling the water on the stove.

Q. And Adriel – you said the baby was dressed. He was just dressed in an outfit, isn’t that right, at that point?

A. I’m not sure.

Q. Okay. I just want to take this in stages. When you said to the officer that the baby was dressed, if you used that word, would you mean had more than a diaper on? Dressed means has clothes?

A. Maybe yes, maybe not.

Q. Okay. And in terms of today, in terms of your recollection, you’re not sure whether the baby was dressed or just had a diaper on at this point. Is that right?

A. What I remember was that I only saw the baby with a diaper on, that’s it.

Q. Okay. So either at that point, or when you see him later, your recollection is seeing the baby with the diaper?

A. Yeah.

Q. So taking that -- and you don’t agree with the assertion that he was actually dressed when you left at that point? You don’t agree with that?

A. No.

[175] Jhon asked Mr. Munoz-Hernandez why he left Adriel by himself earlier that day and told him that he could have left him with Jhon’s grandmother. Mr. Munoz-Hernandez replied that he had given him two bottles, so “it was enough for him.”

[176] Jhon testified that Mr. Munoz-Hernandez initially told him that he did not want to go to Emmett Avenue. However, he later changed his mind. Jhon suggested that he leave Adriel with Jhon’s grandmother but Mr. Munoz-Hernandez said “no.”

[177] Mr. Munoz-Hernandez recalled Jhon suggesting at some point that day that his grandmother look after Adriel. He testified that he did not take Jhon up on the offer because he did not know the grandmother very well and she struck him as weird or strange. I note that Mr. Munoz-Hernandez said nothing in his testimony about not wanting the grandmother to babysit for fear she would discover the alleged bruises on Adriel, which he testified he had observed around noon that day when he changed his diaper.

[178] The surveillance video shows Jhon and Mr. Munoz-Hernandez leaving the apartment for Emmett Avenue at 5:02 p.m.

[179] In his examination-in-chief, Jhon testified that Arlinton was with him in the apartment when he saw Adriel. However, during cross-examination, he was somewhat uncertain as to whether Arlinton was there. After viewing the surveillance video, he agreed that he was by himself when he attended at the apartment and that when he and Mr. Munoz-Hernandez left 14 minutes later, Arlinton was not with them. They met up with Arlinton somewhere else in the building. The video surveillance shows Jhon, Arlinton and Mr. Munoz-Hernandez leaving the building through a back door at 5:29 p.m.

[180] Jhon testified that it took about 10 minutes to walk to the KFC. Arlinton went inside to get some food. Jhon and Mr. Munoz-Hernandez walked another couple of blocks to the 711 store, which took about 5 minutes. Mr. Munoz-Hernandez paid $10 for some marijuana – enough for about two joints. They did not smoke it. They returned to the KFC. Jhon then went back to Emmett Avenue to pick up his bicycle. Arlinton and Mr. Munoz-Hernandez walked back to 15 Martha Eaton Way.

[181] Mr. Munoz-Hernandez testified that between the time that he arrived home from the mall and the time that he left for Emmett Avenue, he fed Adriel and changed his diaper. He did not really want to go to Emmett but Jhon kept asking him.

[182] Mr. Munoz-Hernandez testified that during the 14 minutes that Jhon was in the apartment before they left for Emmett, Adriel was asleep in his playpen in the bedroom. Mr. Munoz-Hernandez did not specifically recall Jhon seeing Adriel on this occasion, but testified that if he had seen him, Adriel would have been dressed and not wearing just a diaper. According to Mr. Munoz-Hernandez, the only time that Jhon saw Adriel in a diaper was when he came over later on that evening.

[183] Mr. Munoz-Hernandez testified that he and Jhon initially tried to purchase marijuana from someone in the penthouse apartment but that person was not home. The surveillance video shows Mr. Munoz-Hernandez returning to his apartment at 5:13 p.m. and leaving again at 5:15 p.m. He testified that he returned to check on Adriel to make sure he was okay.

[184] Arlinton recalled walking with Jhon and Mr. Munoz-Hernandez to Emmett Avenue to buy marijuana but did not recall how or where they met up beforehand. He stopped at the KFC while Jhon and Mr. Munoz-Hernandez continued on to Emmett. They later returned with a small amount of marijuana. Arlinton smoked a bit of it. Jhon returned to Emmett; Arlinton and Mr. Munoz-Hernandez walked home together.

[185] Arlinton testified that he went directly up to his apartment on the 23rd floor and that it was still daylight. However, the surveillance video shows Arlinton and Mr. Munoz-Hernandez entering Mr. Munoz-Hernandez’s apartment together at 6:51 p.m. Arlinton did not leave the apartment until 8:24 p.m.

[186] Arlinton recalled that he was in Mr. Munoz-Hernandez’s apartment for a “few hours” that day, but thought that this visit took place after their trip to the mall as opposed to after the trip to Emmett Avenue. The video surveillance shows that Arlinton is clearly wrong in this regard.

[187] Arlinton testified that he only realized that Adriel was in the apartment when he saw Mr. Munoz-Hernandez preparing a bottle. Arlinton went into the bedroom and saw Adriel lying on the bed. He was wearing a diaper. He was not covered up as it was a hot day. Arlinton could not recall if Adriel was awake. Adriel did not make any sounds and was not moving. He did not appear to be sick. Arlinton did not see any bruises on his body. When Arlinton asked Mr. Munoz-Hernandez why he had left the baby alone, Mr. Munoz-Hernandez faked a laugh and told him that he was a strong kid and that he could handle it.

[188] Mr. Munoz-Hernandez recalled that Arlinton visited his apartment for about an hour-and-a-half after they returned from Emmett Avenue. He initially testified that Arlinton did not see Adriel during this visit, although he would have been aware that Adriel was there. Adriel was asleep in his playpen. Mr. Munoz-Hernandez and Arlinton were smoking on the balcony.

[189] In cross-examination, Mr. Munoz-Hernandez agreed that he “probably” checked on Adriel as soon as he got home and changed his diaper. He also testified that he “probably” put him in his chair in the living room and that Arlinton “probably” saw him. He just could not remember. I note that Arlinton’s evidence was that he made his observations of Adriel while Adriel was lying in the playpen.

Jhon’s visit to the apartment at 11:07 p.m.

[190] Jhon saw Mr. Munoz-Hernandez later that night when he walked into the apartment at 11:07 p.m. The door was unlocked. According to the surveillance video, he left the apartment about 40 minutes later, at 11:46 p.m.

[191] Jhon testified that Adriel was wearing a diaper and was in his stroller. He was awake and making normal baby sounds. He wasn’t screaming but appeared to be uncomfortable in the stroller. He was fussing and moving around, as though he was asking to be taken out of the stroller.

[192] Mr. Munoz-Hernandez was filling baby bottles with hot water and placing them on the sides of Adriel’s body. He told Jhon that he thought the baby was feeling sick and was a little cold. He asked Jhon to take Adriel’s temperature by touching his nose, which Jhon did. Mr. Munoz-Hernandez appeared concerned about Adriel. He did not try to feed him.

[193] Jhon removed Adriel from the stroller and put him on the air mattress. He noticed that Adriel had some little bruises on his side, which Jhon had not noticed earlier. He could not recall which side the bruises were on or whether he asked Mr. Munoz-Hernandez about them. However, he did recall Mr. Munoz-Hernandez saying that Adriel had fallen from a bed a few days earlier. He did not say from what bed or mention anything else that may have happened to the baby.

[194] Jhon and Mr. Munoz-Hernandez went out on the balcony, where Mr. Munoz-Hernandez rolled a joint. They talked and smoked marijuana. During the conversation, and shortly before Jhon decided to leave, Mr. Munoz-Hernandez commented: “How fucked it will be like to be in jail in a country like this by yourself without family.” Jhon did not say anything in response. He testified that they had not been discussing jail prior to Mr. Munoz-Hernandez making this comment.

[195] Jhon agreed in cross-examination that their mutual friend, Walter Pinieros, was in jail at the time and that it was possible that he and Mr. Munoz-Hernandez were talking about Walter when Mr. Munoz-Hernandez made this comment. In re-examination, Jhon stated that they could have been talking about Walter at the time but they were not talking specifically about jail. The comment “just came out.”

[196] In terms of his interaction with Adriel, Jhon testified as follows:

A. So all I did was grab him and put him there (referring to the air mattress) and maybe he will feel better, but I didn’t like stay there and look at him if he was feeling good. No, we – then we went to the balcony.

Q. Okay. So you lift up the baby. You think you have, I will say, an uncomfortable baby who’s fussing?

A. Yeah, so I decided to …

Q. Put him in a new position.

A. Yeah.

Q. You put him on the mattress, and he – is it fair to say he just seems content at that point? Like he doesn’t start screaming?

A. No, he didn’t start screaming, crying, no. He was just like, you know, doing the same thing. He was uncomfortable.

Q. So he’s moving his arms and legs?

A. Yeah. Yeah.

Q. And making baby sounds type of thing?

A. Yeah, baby sounds.

Q. Not screaming out of –

A. No, no, no. Not at all.

Q. But besides that, what you think you’re dealing with is just, I’ll say, a fussy baby that wants to be in another position, the baby is a bit fussy, but he seems –

A. Maybe not, so.

Q. Maybe he’s fine at that point.

A. Yeah.

Q. And I take it nothing – it couldn’t have gotten worse, because you two -- you go out on the balcony and smoke a joint, is that right?

A. Yeah.

Q. Okay. And you see Adriel when you come in and he seems fine?

A. Yeah. Like I say, normal baby just making noise.

Q. Like a normal baby.

A. Yeah. He wasn’t asking for help or … did I see him asking for help, no.

Q. And you don’t see anything in terms of your experience with babies of going something is wrong here. This is just a baby being a normal baby, right?

A. Like I say, if I would knew he was asking for help, I would have helped.

Q. And so you see, I’m going to say, a normal baby, maybe a bit fussy, but fine?

A. Yeah, he’s like a normal baby, just when … he start crying and then all you have to do is go there and make him happy.

Q. Okay.

A. Something like that.

[197] Jhon testified that he was used to being around babies as a number of his relatives have children.

[198] There was no suggestion in Jhon Molina’s evidence that Mr. Munoz-Hernandez was upset by his unexpected arrival at the apartment that night, or that he tried to keep Jhon away from Adriel.

Testimony of Arlinton Munoz-Gomez

[199] Arlinton, age 25, is from Calgary. He was visiting Jefferson Pinieros and had only been in Toronto for about 1 ½ or 2 weeks when he gave his statement to the police on September 14, 2010.

[200] Arlinton first met Mr. Munoz-Hernandez in the lobby at 15 Martha Eaton Way when he was with Ms. DaSilva and Adriel. He also saw him a few times in the building, on the soccer field, and in Jefferson’s apartment. He regarded Mr. Munoz-Hernandez as an acquaintance.

[201] Arlinton had also seen Ms. DaSilva a few times, as she was a friend of Jefferson’s sister, Shannon. He would see her in passing or for a few minutes when she was visiting at the Pinieros’ apartment. Ms. DaSilva appeared to be a caring mother. Adriel seemed to be a healthy baby. Arlinton had seen Ms. DaSilva change Adriel’s diaper at the Pineros apartment on one occasion. He did not see any marks or bruises on Adriel at that time.

[202] Arlinton recalled one occasion when he saw Ms. DaSilva with Adriel in a park. She was feeding Adriel French fries.

The “spicy sauce” comments attributed to the accused by Arlinton

[203] Arlinton testified that at some point on September 11 – he could not recall exactly when – Mr. Munoz-Hernandez told him that he used to put spicy sauce on Adriel’s lips, put him in the fridge, and put him in a cold tub because he was a cry baby. Arlington testified that he “freaked out” upon hearing these weird comments and asked Mr. Munoz-Hernandez why he would do such a thing. Mr. Munoz-Hernandez just laughed. Arlinton was not sure whether Jhon was present during this conversation. He could not recall whether the comments were made in or outside the apartment.

[204] On September 14, Arlinton spoke to a police officer in the hallway at 15 Martha Eaton Way and told him that the comments were made in Mr. Munoz-Hernandez’s apartment after they returned from the Lawrence Mall. He provided this information anonymously. During a police interview on September 20, he repeated the same information; that is, that Mr. Munoz-Hernandez made the “spicy sauce” comments in the apartment after the trip to the mall.

[205] Arlinton was mistaken as to when he attended the apartment that day. After being shown the relevant surveillance footage, he agreed that he and Mr. Munoz-Hernandez attended at the apartment together after their trip to Emmett Avenue, as opposed to after their earlier trip to the mall. He agreed that he was in the apartment from 6:51 to 8:24 p.m. He agreed that he told the officer in the hallway that when he got inside, he heard a baby crying, and that Mr. Munoz-Hernandez warmed some milk. That was when Arlinton realized for the first time that Adriel had been left alone in the apartment “all this time.” It was also during this period that Mr. Munoz-Hernandez, when asked by Arlinton as to why he had left Adriel alone, faked a laugh and told him that he was a strong kid and that he could handle it.

[206] At the preliminary hearing, which was two years after these events, Arlinton testified that he was certain that Mr. Munoz-Hernandez made the “spicy sauce” comments while they were walking home from Emmett. However, during a police interview on September 16, Arlinton stated that as he and Mr. Munoz-Hernandez were walking back from Emmett, they barely spoke to one another. Mr. Munoz-Hernandez was just walking and listening to music. Arlinton was smoking and also listening to music. If they did speak, it was just about the weather and that it was hot. There was no conversation about anything specific. Arlinton did not mention the “spicy sauce” comments during this interview.

[207] Arlinton testified that hearing the comments freaked him out to such an extent that he would not have spent any more time or hung out with Mr. Munoz-Hernandez. He could not recall why he went to the apartment.

[208] Mr. Munoz-Hernandez denied ever making the “spicy sauce” comments. He denied that he was frustrated with Adriel. He stated that he hardly knew Arlinton, and testified, “That’s crazy, just so stupid. I would never say nothing like that. Why would I tell somebody that?” He testified that on the walk back from Emmett, he and Arlinton listened to music.

[209] Mr. Munoz-Hernandez testified that he and Arlinton had not had any arguments. However, days earlier, when he was in the swimming pool, he saw Arlinton and Ms. DaSilva talking on the balcony. Arlinton was touching Ms. DaSilva’s hand. He never mentioned this matter to Arlinton, but wondered about it.

[210] Neither Arlinton nor Ms. DaSilva was questioned during cross-examination about any “hand-touching” incident.

EVIDENCE OF AFTER-THE-FACT CONDUCT

Testimony of Jhon Molina

[211] Jhon Molina recalled being at a travel agency at the Yorkdale Mall on Monday, September 13, with Mr. Munoz-Hernandez and Jefferson Pinieros.

[212] Jhon entered the agency briefly but came back outside while Mr. Munoz-Hernandez dealt with the agent. Mr. Munoz-Hernandez was using the identification of his brother, David Munoz-Hernandez, to purchase a plane ticket.

[213] Jhon testified that in the car on their way home, Jefferson received a call from someone – Jhon was not sure from whom – stating that “they were looking for Ronny” and that the baby was really sick. Jhon did not recall Mr. Munoz-Hernandez saying anything at that point about the baby.

[214] The day that they attended the Yorkdale Mall was the last time that Jhon saw or spoke to Mr. Munoz-Hernandez.

Testimony of Edgar Albarrecin

[215] Mr. Albarrecin testified that he arrived in Canada in 2007. He met the accused through the accused’s brother, David Munoz.

[216] Mr. Albarrecin also knew Ms. DaSilva. He recalled seeing her, along with Mr. Munoz-Hernandez and Adriel, at the hospital after David’s accident in July 2010. Mr. Albarrecin saw Adriel a total of three or four times. He seemed healthy. Mr. Albarrecin never saw any marks or bruises on Adriel.

[217] Mr. Albarrecin recalled one occasion when he noticed a hair in the bottle that Ms. DaSilva was using to feed Adriel. He told her to clean the bottle. She obliged.

[218] Mr. Albarrecin testified that Mr. Munoz-Hernandez appeared to have feelings for Adriel and that he bought gifts for him. Mr. Albarrecin never saw Mr. Munoz-Hernandez caring for Adriel on his own.

[219] Mr. Albarrecin testified that on Monday, September 13, 2010, Mr. Munoz-Hernandez showed up at his apartment unexpectedly. Mr. Albarrecin was unaware at that time that Adriel was in the hospital. Mr. Munoz-Hernandez asked if he could borrow a suitcase. He did not say why he needed it but indicated that he would return it the following week. Mr. Albarrecin lent him a backpack, which was never returned.

[220] Mr. Albarrecin testified that Mr. Munoz-Hernandez was only at his apartment for five or ten minutes before they left for the Yorkdale Mall. Mr. Munoz-Hernandez was driving a car. Mr. Albarrecin’s wife and son waited at a bakery while Mr. Albarrecin went with Mr. Munoz-Hernandez to a travel agency, where they met up with Jhon Molina and Jefferson Pinieros. All four men entered the agency but Mr. Albarrecin, Jhon and Jefferson stood by the door while Mr. Munoz-Hernandez spoke to an agent regarding the purchase of a ticket to Vancouver. Mr. Albarrecin was not sure whether or not he actually bought a ticket.

[221] Mr. Munoz-Hernandez dropped off Mr. Albarrecin at the bakery where his wife and son were waiting. Jhon and Jefferson remained in the car.

[222] Mr. Albarrecin testified that Mr. Munoz-Hernandez borrowed his cell phone on two occasions that day to call his brother, David.

[223] Mr. Albarrecin described Mr. Munoz-Hernandez’s demeanour as normal but a little hyper. He has not seen or spoken to Mr. Munoz-Hernandez since September 13.

Testimony of Franca Campagna

[224] Franca Campagna was the agent at Marlin Travel who served Mr. Munoz-Hernandez on September 13. She recalled two men walking into the agency, one of whom paid cash for a one-way ticket to Vancouver, leaving that evening at 9:15 p.m. She advised him that the price would be cheaper if he waited a couple of days but he insisted on leaving that night. He provided the name “David Munoz” and a telephone number. He indicated that he did not have an Ontario address as he was leaving the province. Ms. Campagna told him that he would have to provide photo ID when he checked in.

[225] Later that day, the male returned with two other males, one of whom stayed in the hallway outside the store. The male asked for and received a refund for the ticket to Vancouver. She never saw this individual again.

Agreed Statement of Fact – Exhibit 25

[226] The Crown and defence counsel agreed on the following facts relating to events on and after September 16, 2010.

[227] On Thursday, September 16, 2010, the police issued a media release advising the public that Mr. Munoz-Hernandez was wanted for aggravated assault in relation to a five-month-old boy who had sustained life threatening injuries. The police asked anyone with information about his whereabouts to contact them via two telephone numbers, the Internet, text message or Facebook.

[228] Sgt. Adams sent Mr. Munoz-Hernandez an email and left a message on his Facebook account on September 16, advising him that the police needed to speak with him as soon as possible. He provided a phone number for him to call. Mr. Munoz-Hernandez never responded to these messages. There is no evidence as to whether or not he accessed Facebook.

[229] The police continued to try to locate Mr. Munoz-Hernandez but were unsuccessful. They went to 15 Martha Eaton Way on several occasions and spoke to residents. They also told Mr. Munoz-Hernandez’s brother, David, that the accused was wanted by police.

[230] On Saturday, July 16, 2011, Mr. Munoz-Hernandez turned himself in to 53 Division and was arrested on the outstanding warrant.

Testimony of Ronnie Munoz-Hernandez

[231] Mr. Munoz-Hernandez was born and raised in Colombia. Prior to coming to Canada, he was living in Bogota and working at an airport. He arrived in Toronto in the summer of 2009. He initially lived with a cousin and then moved into David’s apartment near Yonge Street and Lawrence Avenue. They later moved to the apartment on Erskine Avenue in the Yonge and Eglinton area. In September 2010, Mr. Munoz-Hernandez and Ms. DaSilva moved to Unit 1912 at 15 Martha Eaton Way.

[232] Mr. Munoz-Hernandez testified that when he came to Canada, he left behind his girlfriend, with whom he had been living in a common-law relationship for a couple of years. They maintained contact after he left Colombia. According to Mr. Munoz-Hernandez, their plan right up to September 2010 was that she would eventually join him here. The other possibility was that they would settle in the United Kingdom. At some point, she asked Mr. Munoz-Hernandez about Ms. DaSilva. He told her that he was living with her but that it was not serious.

[233] Within two or three days of arriving in Toronto, Mr. Munoz-Hernandez contacted Walter Pinieros, who was his best friend when he was growing up in Colombia. Mr. Munoz-Hernandez met Jhon Molina and Arlinton Munoz-Gomez through Walter. He did not know Jhon that well but they started to hang out together. He did not know Arlinton very well and only saw him two or three times. He did not know his full name. He also saw Arlinton in a park where people play soccer.

Experience with babies

[234] Mr. Munoz-Hernandez testified that his experience in looking after babies was minimal. When he was 16 years old, he babysat his nephew on one occasion. He was never asked to change a diaper, dress a baby or make a child’s formula.

Meeting Jessica DaSilva

[235] Mr. Munoz-Hernandez met Ms. DaSilva in August 2009. He saw her only briefly at Walter’s apartment. He did not know that she was pregnant.

[236] Over the next couple of months, Mr. Munoz-Hernandez was frequently at Walter’s place. He explained that he was keeping him company because Walter was under house arrest. Mr. Munoz-Hernandez would sleep there three, five or even seven days a week. Ms. DaSilva was there almost every day and slept there as well. She never said anything about going to school. As time passed, Mr. Munoz-Hernandez learned that she was pregnant. She continued to hang out at Walter’s and was spending even more time there. She never spoke about her plans with respect to the baby or where she intended to live. She was always alone. She had no support and no one was helping her. Her grandparents, especially her grandfather, were giving her a hard time.

[237] Ms. DaSilva did not talk much about Adriel’s father, who lived in Texas, but would speak to him on the telephone. During the time that Mr. Munoz-Hernandez knew her, she never took a trip to Texas.

[238] Mr. Munoz-Hernandez testified that he and Ms. DaSilva were just friends while she was pregnant. They did not have sex. She was aware from the first time they met that he had a girlfriend in Colombia with whom he had lived prior to coming to Canada.

First meeting with Adriel and relationship with Ms. DaSilva thereafter

[239] Mr. Munoz-Hernandez planned to visit Ms. DaSilva in the hospital when she had Adriel. He felt bad that she was all on her own. As it turned out, he learned too late that she had had the baby. Adriel was already four or five days old when he first met him. Ms. DaSilva brought him over to Walter’s place. Mr. Munoz-Hernandez testified that Adriel looked at him in a special way and he immediately felt a connection with him. He liked the child. However, he did not anticipate at that point that he would have any special involvement or relationship with him.

[240] Mr. Munoz-Hernandez testified that the nature of his relationship with Ms. DaSilva changed within a week of Adriel’s birth. They started having sex. He testified that neither of them was looking for a serious relationship and it was not “like we would get married.” He liked her – she was nice and helped him with English. They joked, went out, etc. He also liked Adriel. But he never made a commitment to Ms. DaSilva. He did not want to marry her but he did want to help her. She had no money. Their relationship was not one in which they demanded loyalty from one another. He described their relationship as “friends with benefits.” He did not regard her as his girlfriend. He exhibited some contempt for her lack of education and ambition.

[241] After about two weeks, Ms. DaSilva and Adriel moved into the apartment on Erskine Avenue. The move came about when Ms. DaSilva called and told Mr. Munoz-Hernandez that her grandparents had asked her to leave. She was crying and very upset. She slept at David’s place that night. David agreed that she could live there but only until his wife and son arrived from Colombia. After that, she would have to get a place of her own.

[242] While living at David’s apartment, Mr. Munoz-Hernandez and Ms. DaSilva slept on a mattress on the floor. Adriel slept in a playpen beside them. Mr. Munoz-Hernandez did not sleep at the apartment on a regular basis. He would often spend the night at his aunt’s or cousin’s place, or at Walter’s apartment. This did not bother Ms. DaSilva. She did not care. He was unaware of Ashley’s visit to the apartment on August 21, 2010.

[243] Ms. DaSilva and Adriel stayed at David’s apartment for about four or five months. During this period, Mr. Munoz-Hernandez was not involved in feeding or changing Adriel, putting him to bed or getting him up. Ms. DaSilva did all of these things. Only once did he change his diaper. He had difficulty doing this and Ms. DaSilva made fun of him.

[244] On one occasion, Mr. Munoz-Hernandez babysat Adriel when Ms. DaSilva and David went to a party. It was at night and Adriel was sleeping. Ms. DaSilva had prepared a bottle for Adriel before she left.

[245] Mr. Munoz-Hernandez testified that Ms. DaSilva let Adriel cry when he woke up in the morning. He never volunteered to get up and attend to Adriel himself because he did not view this as his responsibility. Ms. DaSilva was Adriel’s mother. If he did it once, she might expect him to do it on a regular basis.

[246] Mr. Munoz-Hernandez went on in his evidence to describe various incidents that suggested that Ms. DaSilva was not the doting mother that she portrayed herself to be.

[247] Mr. Munoz-Hernandez testified that there were three or four occasions when Ms. DaSilva returned to the apartment without Adriel. On one of these occasions, she came home drunk at about 1:30 a.m. She told Mr. Munoz-Hernandez that she had left Adriel with someone and planned to pick him up the next day. Mr. Munoz-Hernandez insisted that they pick him up immediately. They took a bus and a streetcar to get to the babysitter’s place. By that time, it was 2:30 a.m. and people were coming out of the local clubs and bars. Mr. Munoz-Hernandez insisted that Ms. DaSilva pay the sitter $20. He described the woman as in her late 20’s or early 30’s, short, with a darker or blacker skin. He did not talk to her.

[248] Mr. Munoz-Hernandez described a second similar incident. This time, he and Ms. DaSilva drove to the residence of a Portuguese woman with whom Ms. DaSilva said she had gone to school. He heard a little argument take place between them.

[249] Mr. Munoz-Hernandez testified that on one occasion, Ms. DaSilva called him around 2:30 or 3:00 a.m., telling him that her cousin had left her and Adriel on the street. Mr. Munoz-Hernandez was sleeping at a friend’s house at the time. He picked her up but was suspicious of her story. They argued. He asked her to pack up her belongings and leave. He then went out with a friend, who talked him out of kicking her out of the apartment. When he returned home, Ms. DaSilva was still there. He asked her not to lie to him again.

[250] Mr. Munoz-Hernandez described a conversation with Ms. DaSilva in which she spoke about taking Adriel to Texas. She stated that she wanted to go to Texas and leave the baby there. Mr. Munoz-Hernandez did not think that this was a good idea. There was no reason that she could not look after Adriel herself as she was not going to school or working. In addition, Adriel’s father was in the U.S. illegally and, after six months, Adriel would have no legal status there. He would also have no access to health care. Although Mr. Munoz-Hernandez pointed these things out to Ms. DaSilva, he also told her that Adriel was her child and that it was ultimately her decision.

[251] Mr. Munoz-Hernandez overheard Ms. DaSilva talking to Adriel’s father on the telephone and telling him that she loved him. They “spoke like a couple.”

[252] Mr. Munoz-Hernandez, who was buying clothes, toys, diapers and formula for Adriel, told Ms. DaSilva that she should ask the father for money. She apparently did. The father sent her $50, and later, just prior to September 11, $100.

[253] Mr. Munoz-Hernandez testified that he never had any discussions with Ms. DaSilva about having children with her. Nor did he want to have children with her. She was not responsible, had no education and only wanted to “party, party, party.” He saw his future as being with his girlfriend, who was attending university, working part time, and who had plans for what she wanted to do with her life. Had Mr. Munoz-Hernandez wanted to have children with Ms. DaSilva, it would not have been difficult: she did not take birth control pills. Mr. Munoz-Hernandez bought and used condoms.

[254] Mr. Munoz-Hernandez testified that he liked Adriel and that Adriel was the main reason why he and David gave Ms. DaSilva a place to stay when she had no other place to go. He did not feel he had a responsibility to care for Adriel: he was not his father. However, he helped out financially. He bought Adriel clothes and shoes. He also bought a floater so that he could take him into the swimming pool. He would take Adriel into the shower with him when Ms. DaSilva was home.

[255] Mr. Munoz-Hernandez testified that people who saw him interact with Adriel would probably conclude that he loved the child. In cross-examination, he stated that he had a kind of love for him but it was not that strong as he was not his son.

[256] Mr Munoz-Hernandez denied that he intended to give Adriel his last name. He testified that that was his brother’s idea or suggestion. Mr. Munoz-Hernandez told Ms. DaSilva about it but never said that he was going to follow through with it. There would be legal implications from taking such a step.

[257] Mr. Munoz-Hernandez was not aware of Adriel’s doctor’s appointments. Ms. DaSilva never spoke to him about taking him to the doctor.

[258] Mr. Munoz-Hernandez never heard Ms. DaSilva speak of going back to school. He knew nothing about any application for daycare. He suggested to her that she get a part-time job because she never had enough money for herself or the baby. Social assistance payments were not enough. When she said “Okay”, he called his aunt, who worked for a cleaning company. Ms. DaSilva spoke to the aunt and arranged an interview. However, on the day of the interview, she stated that she did not want to go because it was raining. Mr. Munoz-Hernandez offered to drive her. Ms. DaSilva gave him the address and they drove all the way to Scarborough. The address turned out to be fictitious. Mr. Munoz-Hernandez asked her why she had led him on a wild goose chase. Ms. DaSilva said that she did not know.

[259] Mr. Munoz-Hernandez acknowledged that he himself was receiving social assistance and not working at the time. He explained that he was not permitted to work until his immigration papers were complete. His English was not good enough to get a job. His family assisted him by sending him money.

The arrest on the charge of theft

[260] Mr. Munoz-Hernandez testified that when he and Ms. DaSilva were arrested for theft on May 22, 2010, Ms. DaSilva was released within hours but he spent the long weekend in jail. Ms. DaSilva was in court when the judge imposed the term that he have no contact with her. He later learned that Ms. DaSilva had the same condition. However, he testified that he was not going to kick her out of the apartment as she was always telling him that she had no one to go to for help. She never suggested leaving. He testified that he did not understand the serious consequences of breaching the bail condition at that time.

[261] Mr. Munoz-Hernandez described his interactions with the police officer when he and Ms. DaSilva were pulled over on July 25, 2010, while driving to the hospital to visit David. He was driving the vehicle, which he had purchased around the time that Adriel was born. When Ms. DaSilva told him that she wanted a car, he decided to give it to her. The car was registered in her name.

[262] Mr. Munoz-Hernandez testified that the first thing the officer said to him, even before he asked him to identify himself, was, “You know you’re not supposed to be with her.” He then ordered Mr. Munoz-Hernandez out of the car, searched and handcuffed him, and told him that he was going to jail. The officer told him that he could go to jail for an even longer period of time for breaching his bail condition than he would for the original theft charge. Mr. Munoz-Hernandez explained that he and Ms. DaSilva were on their way to the hospital to see his brother. The police seized the car, but did not charge either of them with breach of a recognizance.

[263] Although the police made it clear to him that he would not be so lucky the next time, Mr. Munoz-Hernandez continued to live with Ms. DaSilva, and later co-signed the lease to the apartment at 15 Martha Eaton Way. However, they did not go together to the hospital following the stop by police.

The move from David’s apartment

[264] David’s wife and son came to Canada earlier than originally planned because of David’s accident. Mr. Munoz-Hernandez testified that it was always understood that after their arrival, Ms. DaSilva would move out of the Erskine apartment but that he would be able to stay.

[265] Mr. Munoz-Hernandez testified that Ms. DaSilva had a hard time finding an apartment but managed to get a place at 15 Martha Eaton Way because she had lived there before and knew the landlord. However, she could not lease the apartment without a co-signer. Mr. Munoz-Hernandez agreed to sign the lease but did not intend to live there. He only ended up moving to the apartment because of an argument he had with David’s wife regarding his smoking of marijuana on the balcony. She called David, who demanded that Mr. Munoz-Hernandez move out immediately, which he did. David also called the police. The police report is dated September 3, 2010.

[266] Mr. Munoz-Hernandez testified that Ms. DaSilva went to her father’s house. He left her there and stayed elsewhere the first night. However, he stayed at the father’s house the next night or two.

[267] Mr. Munoz-Hernandez initially testified that he co-signed the lease after they were kicked out of David’s apartment but acknowledged in cross-examination that it was probably signed beforehand. Although he contributed money for the rent and had a set of keys for the apartment, he denied that his intention was that he and Ms. DaSilva would live there as a couple.

[268] Mr. Munoz-Hernandez testified that he did not move all his belongings into 15 Martha Eaton Way. He left some items, such as his immigration papers, at his brother’s place. He took other documents, such as his credit card bills and the July 25 traffic ticket with him. He returned and picked up more items on another day.

Adriel’s fall from the bed at Ms. DaSilva’s father’s house

[269] Mr. Munoz-Hernandez testified that one morning when he was sleeping at Ms. DaSilva’s father’s house prior to the move to the apartment, he heard a “thump” in the bedroom where Adriel was sleeping. Ms. DaSilva ran into the room and picked up Adriel from the hardwood floor. He was screaming, but settled down and seemed to be fine, although there was a small bump on his head. According to Mr. Munoz-Hernandez, he had warned Ms. DaSilva not to put Adriel in that bed. After the fall, he chided her for not heeding his advice: “Jessica, I told you last night not to do it and do you see what happened?” Ms. DaSilva did not say anything in reply. Thereafter, she put pillows beside Adriel to prevent him from falling.

[270] Mr. Munoz-Hernandez testified that this incident took place on the first or second night at the father’s house. He could not recall the location of the bump on Adriel’s head. When pressed on this point in cross-examination, he thought it was perhaps on his forehead near the temple. By the time of the move to the apartment on September 9, there was only a little red mark, which was not very visible. It was not noticeable by September 11.

[271] Mr. Munoz-Hernandez testified that when he, Ms. DaSilva, Izilda, and Adriel were at David’s apartment on September 9 to pick up some of his things, David commented on the bump. However, David made no mention during his testimony of seeing any mark or bump on Adriel’s forehead, even though he was with Adriel for about one-and-a-half hours on that date. According to David, Mr. Munoz-Hernandez was not even at his apartment on September 9.

[272] At another point in his testimony, when Mr. Munoz-Hernandez was asked whether Adriel still had the bump on his head on September 9 and 10, he stated, “I think so.” Realizing that Ashley saw Adriel on September 10, and that she had not noticed any marks on Adriel, Mr. Munoz-Hernandez volunteered in his evidence that Ashley would not have seen the bump because “she did not even look at him.” She came in a rush and left. The closest she came to Adriel was a metre.

Adriel’s fall from a bed at Ms. DaSilva’s grandmother’s house

[273] When Mr. Munoz-Hernandez was first asked in cross-examination about any injuries he had observed on Adriel prior to September 11, he recalled the alleged fall from the bed at Ms. DaSilva’s father’s house. He did not recall any other incidents. However, during cross-examination the following day, Mr. Munoz-Hernandez recalled another occasion when Adriel had a bump on his head.

[274] Mr. Munoz-Hernandez could not recall when this incident happened. He could not recall where the bump was on Adriel’s head. He testified that when he asked Ms. DaSilva about it, she told him that Adriel had fallen out of bed at her grandmother’s house.

Friday, September 10, 2010

[275] Mr. Munoz-Hernandez testified that he bought some hair dye on September 10 and was applying it when Ashley Martins dropped by unexpectedly. He had not previously met Ashley.

[276] Ashley and Ms. DaSilva spoke of the wedding the next day and their plans. This was the first time Mr. Munoz-Hernandez had heard about the wedding. There was no discussion about Adriel or about Natasha babysitting him. Mr. Munoz-Hernandez assumed that Ms. DaSilva was taking him to the wedding.

Saturday, September 11, 2010

[277] Mr. Munoz-Hernandez testified that Ms. DaSilva woke him up on Saturday morning, said that she was going to the wedding and that she had to be at the church at 12:00 p.m. She asked him if he would babysit Adriel. He told her “no”, that he was going out. She told him that she could not leave Adriel with anyone else because he had bruises. Mr. Munoz-Hernandez did not see any bruises on Adriel’s body. Adriel was wearing a zippered-up outfit and sitting in his bouncy chair at the time of this discussion.

[278] When Mr. Munoz-Hernandez asked Ms. DaSilva why she could not stay home with Adriel, she told him that she did not want to miss the church ceremony. She also stated that she could not leave Adriel with her mother or sister because they would call the Children’s Aid Society. Mr. Munoz-Hernandez insisted that he could not look after Adriel because he was not planning to stay in the apartment all day. Ms. DaSilva said that she would see what she could do. She left the apartment but told him she would be back.

[279] Mr. Munoz-Hernandez agreed that he had no specific appointments that day. He just did not want to stay in an apartment where there was nothing to do. There was no phone, no television, no computer, and no furniture other than the playpen and the air mattress.

[280] Mr. Munoz-Hernandez did not ask Ms. DaSilva any questions about the bruises or how they happened. He thought that she may have lied about them so that he would agree to babysit. He also testified that he was reluctant to talk to her about the bruises because of an earlier argument with her regarding an allegation of abuse in her family. When he had told her that she should report the abuse of her younger sister by her stepfather to the police, Ms. DaSilva had refused to take his advice: she told him that it was her family and her life.

[281] Mr. Munoz-Hernandez testified that Ms. DaSilva returned to the apartment with coffee and a muffin for him. He had not expected her to bring him breakfast. She continued to ask him to look after Adriel and showed him how to make the baby formula. She also told him that if he had any questions about what to do, he could call her sister, Izilda, for advice. She wrote down the telephone numbers of Izilda, Natasha, and Natasha’s boyfriend, Mark, on a piece of paper. Mr. Munoz-Hernandez testified that this made no sense to him, as he did not have a telephone.

[282] Ms. DaSilva was in the apartment for less than an hour. When she left, she said that she would speak to her cousin, who was downstairs, and that she would be back. He thought she would return in about half an hour, but she did not return until 3:00 a.m. on September 12.

Noticing the bruises

[283] As previously indicated, Mr. Munoz-Hernandez left the apartment from 11:15 a.m. to 11:45 a.m. to have his nails done. He testified that sometime after returning from the manicure and before leaving the apartment again to go to the mall, he changed Adriel’s diaper and prepared another bottle for him. It was probably around noon.

[284] Mr. Munoz-Hernandez testified that when he changed Adriel’s diaper, he noticed two small light red marks on the lower right side of his abdomen. The marks were close together. It looked like a pinch mark. Both sides of Adriel’s buttocks were reddish in colour. The redness was in the area of the diaper and looked like a rash. It did not rise above the diaper. Adriel’s penis looked the same as his buttocks. His penis was not purple, or dark or swollen as it appears in the photographs taken at the hospital on September 13. Mr. Munoz-Hernandez had not previously seen any bruises on Adriel, although he had had a rash that extended past his diaper on an earlier occasion.

[285] Mr. Munoz-Hernandez testified that he was concerned about the pinch mark and wanted to talk to Ms. DaSilva’s father about it. He admitted that he had only seen her father once and had never spoken to him. However, he had heard from Ms. DaSilva that he was a hardworking and responsible person. He knew that the father was in the Philippines and had no idea when he was returning. He could not recall if he had the father’s telephone number.

[286] When Ms. DaSilva had not returned to the apartment by 2:30 p.m., Mr. Munoz-Hernandez realized that she had lied to him about coming back. He thought that if she had attended the church service at noon, she might be back by 2:00 or 3:00 p.m. However, she had also spoken about going to a party.

[287] Mr. Munoz-Hernandez testified that he did not use the stroller to take Adriel on any of his outings that day because it was cold outside. He kept hoping that Ms. DaSilva would return.

September 11, between 8:24 p.m. and 11:07 p.m.

[288] Mr. Munoz-Hernandez admitted that he was bored in the apartment. He could not recall what he did during the period between 8:24 p.m., when Arlinton left, and 11:07 p.m. He testified that he probably played with Adriel. He also took Adriel into the shower with him.

[289] Mr. Munoz-Hernandez initially testified that he took Adriel into the shower because the baby had not had a shower that day. He also testified that he could not recall at the time whether Ms. DaSilva had bathed Adriel before she left that morning. He acknowledged in cross-examination that Ms. DaSilva had already dressed Adriel when she woke him up. He therefore would not have known one way or the other whether she had bathed him, unless she told him. He testified that he himself needed a shower and that he likes to shower at night. He had taken Adriel with him into the shower on prior occasions – about once a month – but Ms. DaSilva was always home at the time and available to take the baby and dry him off.

[290] Mr. Munoz-Hernandez testified that after he finished showering, he turned off the water and moved the curtain. As he was stepping out of the bathtub, he slipped and fell. He instinctively reacted by trying to grab the wall for support. Adriel fell out of his arms and onto the floor. The fall was fast and hard. Adriel screamed. Mr. Munoz-Hernandez picked him up and comforted him. He settled down and seemed normal after that. During the fall, the bath mat in the bath tub got turned a bit.

[291] Mr. Munoz-Hernandez testified that he hit his legs and right forearm as he went down. Adriel landed on his back a little ahead of him and to his left. He did not land on top of Adriel. Mr. Munoz-Hernandez thought the floor was made of ceramic tile. [The tiles actually appear to be vinyl in the police photograph of the bathroom.] He could not say at what point Adriel fell out of his arms as it happened so quickly.

[292] Mr. Munoz-Hernandez testified that initially he was worried about Adriel. He picked him up, checked him, and found that he was fine. He wasn’t bleeding. He had a small red mark on the back of his head, about midway up, but it was not a bump. He did not think it was a serious injury or anything to worry about.

[293] When asked whether he was concerned that Adriel might have a head injury, Mr. Munoz-Hernandez stated that he had no experience with children. As far as he could tell, Adriel appeared to be fine, which is why he never mentioned the fall to Jhon – it was not important to tell him about it. He recalled telling Jhon about Adriel having fallen out of bed a few days earlier, but was not sure whether he mentioned this to him that night. It could have been another day.

Jhon arrives at 11:07 p.m.

[294] Mr. Munoz-Hernandez dried Adriel, put a diaper on him, put him in the stroller and then went to the kitchen to make some formula. Adriel’s buttocks, penis and abdomen looked about the same as they had at noon. The two marks on the right side of his abdomen were a little more purple or red. These were the only injuries that he observed.

[295] Mr. Munoz-Hernandez was in the kitchen when Jhon walked in. He arrived about ten minutes after Mr. Munoz-Hernandez had gotten out of the shower. The door to the apartment was unlocked.

[296] Mr. Munoz-Hernandez thought that Jhon stayed for about two hours. However, the surveillance video shows him entering the apartment at 11:07 p.m. and leaving 39 minutes later, at 11:46 p.m.

[297] Mr. Munoz-Hernandez could not recall when he first noticed that Adriel had a runny nose and was sniffling. It could have been that morning or in the afternoon. He thought he had caught a cold while staying at Ms. DaSilva’s father’s house three days earlier. He placed bottles of warm water beside Adriel to make him feel a little warmer. It was Jhon’s idea to touch Adriel’s nose to see if he had a cold or was sick.

[298] Other than the cold, Mr. Munoz-Hernandez had no concerns about Adriel’s health. He recalled Jhon taking Adriel out of the stroller and sitting with him on the mattress. Jhon then went out on the balcony to smoke marijuana. Mr. Munoz-Hernandez prepared a bottle of formula and finished cleaning up in the kitchen. He testified that he fed Adriel and put him into his pyjamas.

[299] Mr. Munoz-Hernandez was questioned about the comment attributed to him by Jhon while they were on the balcony: “How fucked it will be like to be in jail in a country like this by yourself without family.” He testified that at the time that he made this comment, his best friend, Walter Pinieros, was in jail and so “we used to talk about him all the time.” Mr. Munoz-Hernandez testified that if he made a comment about jail, it would have been about Walter – that “it would be bad to go to jail or poor Walter, in jail or something like that.” However, he never made a comment referring to himself as going to jail.

After Jhon leaves at 11:46 p.m.

[300] Mr. Munoz-Hernandez testified that he put Adriel to bed in the playpen about 30 or 40 minutes after Jhon left. Adriel did not seem sick or sleepy. He did not seem fussy. He wasn’t laughing but seemed like a regular baby. Mr. Munoz-Hernandez brought the playpen into the living room so that he could hear Adriel if he started to cry. He explained that he is a heavy sleeper. He also testified that he moved the playpen beside him so that he would have company and not feel so alone. He testified that the playpen was heavy but not that heavy for him. One end of it was on wheels. Mr. Munoz-Hernandez had no idea at that point when Ms. DaSilva was going to return home.

[301] Mr. Munoz-Hernandez testified that he was not upset with Adriel over the fact that Ms. DaSilva had left him alone with the baby for over 18 hours. He stated that you “cannot blame the kid” for that. He was, however, upset with Ms. DaSilva for lying to him by saying she was coming back when she never did.

[302] Mr. Munoz-Hernandez testified that he never punched or hurt Adriel in any way that day. He never lost his temper with him. Adriel was quiet. He did not cry a lot. When he put him to bed that night, he had no concerns about him. He seemed normal.

Ms. DaSilva returns home

[303] Mr. Munoz-Hernandez testified that when Ms. DaSilva arrived home, she turned on the lights and woke him up. Adriel was asleep. He did not wake up.

[304] Mr. Munoz-Hernandez testified that Ms. DaSilva kissed him. She smelled of alcohol. He told her that she had not only come home late but that she “smelled worse than a horse.” She got angry and upset. He told her about the accident in the shower. She looked at Adriel and said he was fine. Mr. Munoz-Hernandez agreed with her. He asked her why she was gone all day. She wanted to argue. He asked her to do him a favour and turn off the lights. She was angry. She turned the lights off, grabbed the playpen, moved it into the bedroom and slammed the door. He did not know whether she picked up Adriel before she moved the playpen.

[305] Mr. Munoz-Hernandez testified that it was late and he was extremely tired. He rolled over, pulled the blanket over his head and quickly fell back to sleep. He testified: “So if I hear something – I can’t really remember if I heard something, but if I heard something, Jessica was there.” In cross-examination, he testified that after the door slammed, he did not hear anything. He was unaware of when Ms. DaSilva came to bed: “I fell asleep pretty fast. When she came – if she came to sleep with me, I didn’t feel and I didn’t hear anything.”

September 12, 2010

[306] Mr. Munoz-Hernandez testified that the next morning, Ms. DaSilva woke him up. She had Adriel in her arms and was holding a bottle that she had prepared. She told him something was wrong with Adriel. He was not eating or responding.

[307] Mr. Munoz-Hernandez testified that Adriel appeared to be in a deep sleep. He got up and told Ms. DaSilva that they had to get to a doctor. Ms. DaSilva did not want to go, stating that she would get into trouble if people saw the bruises. He finally convinced her that they had to get to the hospital but she was taking time to do her hair, put on makeup, and put fresh clothes on Adriel. There was wet milk on Adriel’s outfit. Mr. Munoz-Hernandez kept urging Ms. DaSilva to hurry up. They finally left after about 10 minutes.

[308] Mr. Munoz-Hernandez denied making any comment about being scared of going to jail or telling Ms. DaSilva to make up a story for the police. He testified that he did not speak to her in the hallway, or while they were waiting for the elevator, or when they were in the taxi on the way to the hospital. He was upset with her for taking so long to get ready to leave. He pointed out that in the video of the two of them walking down the hall and waiting for the elevator, they do not appear to be speaking to each other. However, the surveillance camera was not consistently focused on the hallway. It rotated and therefore did not capture all their movements or activities in the hallway or in front of the elevator.

[309] Ms. DaSilva took Adriel inside upon their arrival at the hospital. Mr. Munoz-Hernandez paid the cab fare and entered a few moments later. He remained at the hospital for an hour or two.

[310] Mr. Munoz-Hernandez testified that he knew Adriel was having difficulty breathing on Sunday morning and thought that he might have a “breathing disease.” However, he did not link his condition with the fall in the shower. Adriel had seemed normal after the fall. He added: “I’m not a doctor.” Mr. Munoz-Hernandez did not tell any medical staff at the hospital about the fall because he assumed Ms. DaSilva had informed them about it. He agreed that he had only mentioned the fall to her once – that is, when she arrived home drunk. He saw Ms. DaSilva talking to the doctors and speaking to someone in the emergency room. He was just waiting and walking around.

[311] Mr. Munoz-Hernandez testified that, at some point, he spoke to Ms. DaSilva in the waiting room and asked her what was going on with Adriel. She told him that there was a problem with Adriel’s breathing but he was going to be fine. Sometime later, he saw three police officers taking Ms. DaSilva into a room. That was when he left the hospital, as he was concerned that he and Ms. DaSilva would both be arrested for violating their bail condition not to have any contact with each other. When he left the hospital, he was aware that Adriel looked very sick and that he had bruises but he did not know that he was in a life-threatening situation.

[312] The Crown and defence counsel agree that no adverse inference may be drawn against Mr. Munoz-Hernandez from the fact that he left the hospital when he did. His act of leaving when he saw the police is as consistent with a fear that he and Ms. DaSilva would be arrested for breach of a recognizance as it is with the actions of someone who was responsible for causing injury to Adriel.

[313] After seeing the police and leaving the hospital, Mr. Hernandez took a taxi to his friend, Maelo’s, place. That evening, Maelo drove him to the hospital. Mr. Munoz-Hernandez asked him to go in and ask about Adriel. Maelo went in but returned, stating that he could not get any information about Adriel and that Ms. DaSilva was not there. At that point, Jefferson called Maelo’s cell phone and advised that the police were at Mr. Munoz-Hernandez’s apartment. Maelo and Mr. Munoz-Hernandez drove to 15 Martha Eaton Way. Mr. Munoz-Hernandez remained in the car while Maelo went inside, came back and confirmed that the police were in the apartment. Mr. Munoz-Hernandez slept at Maelo’s place that night.

September 13, 2010

[314] The next day, on September 13, Mr. Munoz-Hernandez borrowed Maelo’s car and cell phone and returned to the hospital with his cousin Jessica in the hope of finding out how Adriel was. Jessica went into the hospital. She later returned and told him that Adriel was in serious condition. She also told him that Ms. DaSilva was blaming him for Adriel’s injuries, telling people that he had “done this on purpose” and that the police were looking for him.

[315] Mr. Munoz-Hernandez testified that he was scared and wondered what would happen if people believed Ms. DaSilva and did not believe him. He was concerned that he would be treated differently because he was from a different country. When he and Ms. DaSilva were charged with theft, she was released after about an hour, but he spent the weekend in jail. He testified that he was in a panic and did not know what to do.

[316] After taking Jessica home, Mr. Munoz-Hernandez spoke to his cousin, Loncho Munoz, in Colombia, and told him what was happening. Loncho told him that the situation sounded serious, that he should be careful, and suggested that he might want to “stay away” and wait to see what was happening.

[317] Mr. Munoz Hernandez spoke to David on the telephone three times that day. He testified that he told him that Adriel was sick and that Ms. DaSilva was blaming him for his condition. [David’s evidence does not accord with that of Mr. Munoz-Hernandez in this regard.] He asked David for money but David turned him down. Mr. Munoz-Hernandez made no mention during these calls about having fallen with Adriel while getting out of the shower. He testified that he was too worried at that point about the untrue things that Ms. DaSilva was saying about him.

[318] Mr. Munoz-Hernandez drove to David’s apartment and stole his driver’s licence. He was only in the apartment for five minutes. David was not home at the time.

[319] Mr. Munoz-Hernandez initially tried to create the impression that David’s driver’s licence just happened to be lying around in plain view and that his theft of it was a spontaneous act: “When I went to the apartment, I didn’t know that the driver’s licence was – whether the driver’s licence was there or not. I saw it when I was in the apartment and that’s when I took it.” However, in cross-examination it became clear that Mr. Munoz-Hernandez went looking for the licence and found it in a box in a closet. The theft was not spontaneous but deliberate. He testified that he decided to go away for a while and “see if the situation get cleared or maybe a police officer will find that she’s saying these things that are not true and then I will probably come back, so that is what I was thinking at the time.”

[320] Mr. Munoz-Hernandez went to Edgar Albarrecin’s place to tell him he was going away and to ask for a backpack. He could not recall if he called Edgar beforehand. Edgar accompanied him to the travel agency at Yorkdale, where he bought the ticket to Vancouver.

[321] Mr. Munoz-Hernandez testified that his friend, Chafas, as well as Loncho, Jefferson, Maelo, and Edgar, were all telling him to “stay away,” although they did not tell him to go to a particular place. In cross-examination, he acknowledged that it was his own idea to fly to Vancouver. Loncho sent him the money for the flight. He eventually decided not to go to Vancouver because he did not know anyone there.

[322] Chafas and Jefferson drove him to Montreal. He stayed one night in a hotel and one week with Jefferson’s friend, “Cholo,” who assisted him in the purchase of false identification documents in the name of “Marco Rodriguez.”

[323] Mr. Munoz-Hernandez rented a room in the basement of a house. He did not work and depended on money sent by Loncho for support. Loncho was the only member of his family who knew he was in Montreal.

[324] Mr. Munoz-Hernandez testified that while living in Montreal, he would call his mother in Colombia and ask her to tell Ms. DaSilva to tell the truth. His mother had never met Ms. DaSilva. Mr. Munoz-Hernandez explained that he wanted his mother to speak to David, who could then pass this message on to Ms. DaSilva. He did not call David directly or anyone else in Toronto because he did not want them to get into trouble. He was aware that Chafas had been arrested as a result of his driving him to Montreal. Mr. Munoz-Hernandez was also afraid of being arrested himself.

[325] Mr. Munoz-Hernandez testified that he did not try to contact Ms. DaSilva directly as she was the last person he wanted to talk to. He expected or hoped that someone would “catch her in a lie.” After ten months, when nothing happened, he decided to return to Toronto and turn himself in to the police.

[326] Mr. Munoz-Hernandez only learned of Adriel’s death four or five months after the fact. He explained the delay as a result of his having told his mother, “Don’t give me any bad news, but do tell me if something positive comes up.”

Evidence of David Munoz-Hernandez

[327] David Munoz-Hernandez arrived in Canada in January 2009, when he was 24 years old. He is married, has three children, and is currently a building maintenance supervisor.

[328] David testified that Ronny, which is how he referred to Mr. Munoz-Hernandez during his testimony, had been living in a common-law relationship with Jeimy Alejandra in Colombia for about two years before he came to Canada in July 2009. He moved in with David about one week after arriving in Toronto. He often spent nights or weekends at the homes of various relatives.

[329] David testified that Ms. DaSilva moved into his apartment when Adriel was only two weeks old, which was in early April. He met Ms. DaSilva virtually the same day that she moved in. He agreed to let her stay for a short time after he held Adriel and learned from Ronny that Ms. DaSilva had no other place to go.

[330] Ms. DaSilva slept at the apartment every night. She was not going to school or working. David advised her on such things as how to warm the baby formula and sterilize the bottles. Ms. DaSilva seemed happy to receive his advice. He never saw her upset.

[331] David testified that Ms. DaSilva liked to sleep in and would let Adriel cry when he woke up, usually around 6 or 6:30 a.m. Ronny would pressure her to get up and feed him, but Ms. DaSilva would just let him cry. Ronny would sometimes comfort Adriel until Ms. DaSilva got up and prepared his bottle.

[332] Ronny never fed Adriel or changed his diaper. David, however, would sometimes step in and do these things when Ms. DaSilva was distracted on the computer or talking on the telephone. David testified that Ms. DaSilva did not hold Adriel that much because she did not want to spoil him. As a result, David would hold him. When David would tell Ms. DaSilva that Adriel needed a diaper change, she would tell him “just to leave him there” and that she would change him later. On these occasions, David would change Adriel’s diaper himself.

[333] David testified that although Ronny occasionally babysat Adriel, it was only for very short periods of time, such as 20 minutes, when Ms. DaSilva went to the bank or a store.

[334] David described Ronny and Ms. DaSilva’s relationship as strange. They slept together but were not a couple. He agreed, however, that at the preliminary hearing, he referred to Ms. DaSilva as Ronny’s girlfriend and described them as a couple. He explained that they were a couple in the sense that they slept together. He agreed that Ronny referred to Ms. DaSilva as his girlfriend.

[335] David testified that Ronny loved Adriel. David initially denied but ultimately agreed with the suggestion that Ronny treated Adriel as if he were his own son. He played with Adriel and bought him clothes and formula.

[336] David testified that it was his idea that Ronny give Adriel his last name. David felt that if Ronny was going to live with Ms. DaSilva, he should do things correctly. David agreed that at the preliminary hearing, he testified that Ronny wanted to give Adriel his last name. He then explained that there was a time when this was the case but that Ronny later changed his mind.

[337] David testified that he encouraged Ms. DaSilva to apply for daycare so that she could go back to school, but she never followed through with his suggestions or took steps to get a job. She told David that it was difficult with a baby.

[338] According to David, Ms. DaSilva also told him that Adriel’s father had told her to send the baby to Texas and that he would look after him for three or four years. David discouraged Ms. DaSilva from accepting this offer. He testified that he told Ms. DaSilva that she could leave Adriel with him if she did not want him.

[339] David described his relationship with Ms. DaSilva as “practically best friends.” She disclosed to him that she felt as though she were in prison because Adriel prevented her from getting on with her life and doing the many things she wanted to do. She liked to party a lot and she liked drinking.

[340] David described various instances when Ms. DaSilva behaved irresponsibly as a mother; for example, on one occasion, when she attended a barbeque, she arrived without formula, diapers or a change of clothing for Adriel. David ended up borrowing someone’s car to go purchase these items. That same night, Ms. DaSilva left Adriel in his car seat on the floor in a room where people were drinking. On another occasion, she left the apartment without telling him that she was going out. When Adriel woke up in the middle of the night and started crying, David attended to him. The next morning, Ms. DaSilva explained that she had not anticipated that Adriel would wake up.

[341] David testified that he told Ronny it was not right for him to be living with Ms. DaSilva when he had a girlfriend in Colombia. David did not think Ronny, who was 21 years old and immature, was a good role model. Ronny was just living his own life and not interested in having a family.

Ms. DaSilva and Mr. Munoz-Hernandez move out

[342] David testified that although Ronny could stay at the apartment after his wife and son arrived, he told Ms. DaSilva that she and Adriel would have to move out. In the meantime, David enjoyed Ms. DaSilva’s company. He was very fond of Adriel.

[343] David’s wife arrived on August 25. He testified that Ms. DaSilva was looking for a place to live and had asked David and many other people to co-sign the lease on the Martha Eaton Way apartment. In the end, only Ronny was prepared to sign the lease. David cautioned him that he should be careful in terms of his credit history. After Ronny had the argument with his wife, David told him that he, too, had to leave, although he might be able to come back if David could “soften” things with his wife. David understood that Ronny would stay with Ms. DaSilva for a few days until he figured out what to do.

[344] David agreed that at the preliminary hearing, he testified that he had told Ronny from the outset that both he and Ms. DaSilva would have to move out when his wife and son arrived. He also testified at the preliminary inquiry that Ronny had paid the rent on the apartment on Martha Eaton Way and was just waiting for the painting to be done and new carpets to be installed before moving in. He further testified at the preliminary hearing that Ronny and Ms. DaSilva “were going to live together.” In re-examination, David explained that he meant that they would be living together “in the short term.”

[345] On September 9, David was with Adriel for about 1½ hours while Ms. DaSilva and her sister packed up Ms. DaSilva’s belongings, as well as various items belonging to the accused. Ronny did not attend the apartment that day. As Ms. DaSilva was leaving, David asked her to stay in touch and told her that he wanted to continue to have contact with Adriel. That was the last time that David saw Adriel.

September 13, 2010: The three telephone calls from the accused

[346] David testified that Ronny called him three times on September 13. In the first call, he asked him for money for a ticket to Vancouver. David, who did not have the money, told him “no.” Ronny then asked him if he could get money from a friend or through a credit card. David refused. When he asked Ronny why he wanted to go to Vancouver, Ronny told him that he had a “problem” and needed money to travel. He said that he would tell him about it later. He made no mention of Adriel being in the hospital or of the alleged fall in the shower.

[347] David testified that during the second or third call, Ronny told him that Adriel was in the hospital with Ms. DaSilva. When David asked him what happened, Ronny told him that he would tell him later. “Later” never came. For the next ten months, David had no idea of Ronny’s whereabouts.

The visit to the hospital to see Adriel

[348] David went to the hospital one week later to see Adriel. Once there, he decided not to visit him in order to avoid any conflict with Ms. DaSilva’s family members. However, he did speak to Ms. DaSilva for about 30 or 40 minutes. He testified that he was “shocked” at her behaviour: she was laughing, smoking and playing with David’s son as though nothing had happened.

Contact with the police

[349] David testified that he co-operated with the police in terms of giving them any information he had about Ronny’s whereabouts. He gave them Ronny’s immigration documents and reported the theft of his driver’s licence. He agreed that at the preliminary hearing, he stated that he did not try to contact Ronny “because the police might find out.”

[350] On September 20, 2010, David’s mother called and said she wanted to pass on a message from Ronny to Ms. DaSilva; that is, to tell Ms. DaSilva to tell the truth. David never gave Ms. DaSilva the message but did pass it on to the police.

[351] The police never asked David to provide a statement or to describe Mr. Munoz-Hernandez’s relationship with Ms. DaSilva or Adriel. They only questioned him in regard to information he may have had about Mr. Munoz-Hernandez’s whereabouts.

MEDICAL EVIDENCE

[352] Six witnesses were qualified to give opinion evidence in their respective fields of expertise. They are as follows:

• Dr. Emma Cory, in the area of pediatrics and the evaluation of childhood injuries

• Dr. Manohar Shroff, in the area of pediatric neuroradiology

• Dr. Asim Ali, in the area of pediatric ophthalmology and the evaluation of eye trauma

• Dr. Michael Taylor, in the area of pediatric neurosurgery and the evaluation of brain injuries

• Dr. Charis Kepron, in the area of forensic pathology

• Dr. David Ramsay in the area of neuropathology

Evidence of Dr. Emma Cory

[353] Dr. Cory was qualified to give expert opinion evidence in the area of pediatrics and the evaluation of childhood injuries. She has been a staff pediatrician at the Hospital for Sick Children with the Suspected Child Abuse and Neglect Program or “SCAN” since 2005.

[354] Dr. Cory agreed that the medical literature regarding the cause of injuries in children has certain limitations: studies obviously cannot involve experiments on children, and the reported history of what caused an injury to a child may be inaccurate. Incidents that cause injuries are rarely captured on video. The literature may suggest a generally accepted view on a matter but forensically, one also has to realize that there may be exceptions to that view.

[355] Dr. Cory testified that she never starts out with the presumption that a child has suffered from an inflicted or abusive injury. Rather, she works through every case systematically, starting very broadly and moving towards an opinion. She avoids the term “abusive injury” and prefers the term “inflicted injury”, which means caused by the actions of another.

Assessment of Adriel

[356] Adriel arrived in the Emergency Room at 12:01 p.m. on September 12, 2010. The notes of the medical staff indicate that he looked very unwell. He was pale and grey in colour, and had a low respiratory rate. His breathing was shallow. His pupils were fixed and not responsive to light, which is an indication of a brain injury and brain damage. Except for a slight movement of his right leg, he was not moving his limbs.

[357] Adriel’s fontanel, which normally should have been soft and flat, was tense or swollen, which is a sign of increased pressure in the skull. A caregiver quite possibly might not notice this symptom.

[358] Adriel had a 5 cm x 5 cm abdominal mass just above his pubic bone resulting from the retention of urine. It resolved once a catheter was inserted.

[359] On the Glasgow Coma Scale, Adriel scored 3/15, which is the lowest possible score. He was extremely neurologically compromised.

[360] Dr. Cory reviewed Adriel’s health records, which did not reveal any previous medical concerns. From all reports, he was a normal healthy baby.

[361] Dr. Cory noted that Ms. DaSilva did not provide any information that would explain Adriel’s condition. Ms. DaSilva told the hospital staff that she had left Adriel with a friend around 2:00 p.m. the previous day, when she went to a wedding. When the friend returned with him around 11:30 a.m. on September 12, he was not breathing or acting normally. Ms. DaSilva noticed abdominal bruising upon changing his diaper. She immediately took him to the ER. She stated that she had known the friend for three years and that they had met while working together. She had been unable to contact the friend since she dropped off Adriel that morning. Ms. DaSilva provided a name and telephone number for the caregiver and said she lived at Dufferin and St. Clair. Dr. Cory was later advised by police that this story was untrue.

[362] There was no indication in the file that Mr. Munoz-Hernandez provided any information regarding the cause of Adriel’s injuries.

[363] The Catholic Children’s Aid Society (the “CCAS”) was contacted by a physician when Adriel presented at the hospital. Ms. DaSilva consented to the emergency room doctors contacting the police. Without such consent, the CCAS would have notified the authorities.

[364] Immediate resuscitation efforts involved multiple intravenous lines and an intra-osseus line, which was inserted into Adriel’s shin bone. He received bag-mask ventilation and was intubated. He was also given a blood transfusion. As soon as he was stabilized, he was taken for a CT scan, which revealed two major problems:

i) The presence of a subdural hemorrhage or hematoma over the right side of the brain; and

ii) Severe brain swelling.

The subdural hemorrhage or hematoma

[365] Dr. Cory described Adriel’s subdural hematoma as large or “space-occupying.” It was causing a midline shift – that is, his brain had been squeezed or shifted over into the left hemisphere. In light of the shift and the pressure that the hematoma was putting on the brain, Dr. Taylor, as a temporary measure, inserted a syringe into the hematoma and drew out 40 mililitres of blood, which appeared to be under high pressure.

[366] The CT scan showed that the subdural hematoma had variable densities, which are indicated by different shadings. Some areas appeared brighter than others. Some appeared to be a darker grey. Dr. Cory cautioned that there are limitations in terms of dating subdural hematomas; they cannot be dated very accurately. In terms of Adriel’s CT scan, the bright white areas are typically associated with a recent or acute hematoma – that is, sometime between 0 to 7 or 10 days earlier. That estimate is based only on the CT scan and does not take into account the symptoms or progression of symptoms that Adriel may have experienced. Dr. Taylor, having looked at the blood, described it as recent or acute.

[367] As for the smaller “mixed density” or darker area on the CT scan, it could mean that there were components of older blood and newer blood within the hemorrhage, or that the hemorrhage was actively bleeding, or that the blood was mixing with clear spinal fluid.

[368] Dr. Cory ruled out the process of birth, a bleeding disorder or a genetic or metabolic condition as the cause of Adriel’s subdural hematoma. Adriel’s subdural hematoma was a primary injury caused by trauma, either inflicted or accidental.

[369] Dr. Cory testified that the majority of infants 12 months of age or younger who present at the Hospital for Sick Children after experiencing a household fall, such as falling off a bed or being dropped from their caregiver’s arms, do not sustain a subdural hemorrhage. In fact, the majority of such children sustain no injury at all. If their head has impacted on something, they might have a goose egg, bruising over the area of impact, soft tissue swelling, or a skull fracture. Adriel did not have a goose egg or a skull fracture and there was no sign of a soft tissue injury on his scalp – at least, the notes from the emergency room assessment of him and the neurosurgical notes do not mention any signs of impact.

[370] Dr. Cory testified that there are cases reported in the literature of subdural hemorrhages resulting from a household fall, but such cases are rare. The severity of Adriel’s injury, coupled with the absence of any signs of impact, is very unusual in the context of a household fall.

[371] According to Dr. Cory, the medical literature indicates that the most common cause of subdural hemorrhages in infants is traumatic injury, and that inflicted injury is more common than accidental injury.

[372] Dr. Cory testified that there are two types of inflicted injury that cause a subdural hematoma in an infant:

1. Acceleration/deceleration forces acting on the brain; for example, forceful shaking where the infant’s head goes back and forth; and/or

2. A sudden deceleration by the application of force, such as an object hitting the baby’s head or the baby’s head hitting an object or surface.

[373] In either scenario – the shaking scenario, or when the baby’s head hits something – the brain may move, causing tension in the blood vessels, which may break and which results in blood spilling into the space between the dura and the brain. Systems in the body will try to form a clot to stop the bleeding. The bleeding could also stop if there is enough blood such that the resulting pressure stops the flow of blood from the vessels.

[374] Dr. Cory testified that in the second scenario, that is, when the baby’s head has impacted an object, one typically sees signs of that impact. No such signs were observed in Adriel’s case. However, Dr. Cory cautioned that sometimes signs of impact are missed; for example, they could be missed in CT scans or MRI’s or during a physical examination. Thus, the lack of signs of impact does not necessarily exclude impact.

[375] Dr. Cory pointed out that in this case, Adriel had an initial skeletal survey and another one two weeks later. Skeletal surveys include skull x-rays. No fractures were identified. Adriel also had a CT scan and an MRI of his head. He had a surgical procedure in which the neurosurgeons would have looked at his skull. There was also a postmortem examination of his skull. Each individual technique can miss a skull fracture, but all of them together support the position that there was no skull fracture. She added, however, that one can never be “100 percent” sure.

[376] Dr. Cory was aware of cases in which signs of soft tissue injury, which would indicate impact, have not been directly observed or seen in imaging, but have been discovered shortly thereafter during an autopsy. She agreed that the absence of direct evidence of a fracture or soft tissue injury does not mean that impact can be eliminated as a force that caused Adriel’s subdural hemorrhage.

[377] Dr. Cory testified that the fact that a subdural hemorrhage is on the right side of the head does not necessarily mean that that was the site of impact, assuming it was caused by impact. A force could be applied to one side of the head and the bleeding could occur on the other side of the head. Dr. Cory deferred to Dr. Taylor’s clinical experience in terms of how long or over what period of time the bleeding took place.

[378] Dr. Cory testified that there has been some controversy in the medical profession in recent years about whether forceful shaking alone, that is, without impact, is sufficient to cause a subdural hemorrhage. Having considered the literature in this area, Dr. Cory was of the opinion that shaking alone can be sufficient to produce a subdural hemorrhage in infants. This is also the current view of the Canadian Pediatric Society and the American Academy of Pediatrics.

[379] Dr. Cory testified that controversy in this area arises, in part, from biomechanical studies involving crash test dummies subjected to shaking forces. In a couple of studies, researchers were unable to generate the amount of force required to produce a subdural hemorrhage or even the force generated from a short fall. In Dr. Cory’s view, the weaknesses in these studies revolve around the challenges in creating a dummy that actually replicates an infant, where the tissues have the same properties, and where the head moves in the same manner. In other words, it is difficult to replicate a real life baby and a real life injury situation.

[380] The medical literature and viewpoint of those working in this field is evolving over time.

Brain swelling or cerebral edema

[381] Dr. Cory testified that when there is a traumatic injury to an infant’s brain, that injury or application of force can cause damage to the brain cells. On the cellular level, the body responds to this damage by sending fluid to the area. Thus, cerebral edema or swelling of the brain is the movement of fluid into the brain in response to the traumatic injury. The swelling typically starts on a microscopic level and then progresses or worsens over time. The edema or swelling is the visible clue that the brain has been damaged.

[382] Sometimes, other things can make the swelling worse. For example, if the initial swelling affects the baby’s breathing and the delivery of oxygen, this can cause secondary edema, adding to the problem. Another example: the initial swelling increases the pressure within the skull, essentially squishing the brain and compromising the blood flow to it, thereby causing a secondary injury or effect.

[383] When asked whether there is a general time frame in which the swelling is expected to peak and then begin to settle down, Dr. Cory deferred to the neurosurgeon. However, her understanding is that cerebral edema cannot be accurately dated. How long it progresses and worsens depends on a number of factors. Looking at Adriel’s CT scans, which were taken at 3:00 p.m. on September 12, Dr. Cory could not say how much of the brain injury was primary and how much was secondary.

[384] Dr. Cory testified that the act of forcefully shaking a baby can cause injury to the brain tissue itself, as well as a subdural hemorrhage. Similarly, if a child’s head is impacted, causing deceleration, that force could result in both a primary brain injury and a subdural hemorrhage.

CT Scans of Adriel’s brain

[385] Dr. Cory pointed out that the subdural hemorrhage overlying the right side of Adriel’s brain and extending on to the left side appears as a bright area on the CT scan.

[386] The ventricles or fluid-filled spaces that should appear as dark spaces on the CT scan are not visible on the right side of the brain as they have been compressed by the brain swelling. The swelling was worse on the right side. There was a loss of grey/white differentiation: in a normal brain, the brain tissue appears in a CT scan in various shades of grey, from light to dark. However, in Adriel’s scan, the brain tissue is a uniform grey colour. There is edema or swelling throughout the brain. Adriel’s brain injury was severe.

[387] Dr. Cory testified that once brain cells die, they cannot be regenerated. As the swelling eventually resolves, the brain shrinks or atrophies as a result of the loss of brain cells.

[388] In order to allow more room for the swelling, Dr. Taylor performed a bilateral craniectomy, which involved removing a piece of skull from each side of Adriel’s head. The CT scan taken on September 13, after this procedure, shows that Adriel’s brain actually expanded outside of his skull. There was also a small amount of the subdural hemorrhage remaining.

Symptoms

[389] Dr. Cory testified that the symptoms demonstrated by an infant immediately following a brain injury will vary, depending on the severity of the injury, what parts of the brain are involved, and how broad or widespread the damage is. On the less severe end of the spectrum, a baby would be fussy, irritable, a bit sleepy, not feed well and not behave in their usual manner. At the more severe end of the spectrum, a baby could be unconscious, have seizures, stop breathing or even die. Dr. Cory’s expectation was that the infant would not appear normal at first but the severity of the symptoms would worsen or become more obvious over time, as the brain swelling progresses over the ensuing minutes and hours.

[390] Dr. Cory would not have expected Adriel to be 100 % neurologically normal immediately after sustaining his brain injury. However, whether or not a baby is perceived by the caregiver to be behaving abnormally may depend on the level of involvement of the caregiver. It would be possible for someone caring for a baby who has suffered a serious head injury to perceive the baby as unwell due to a mild illness.

[391] If Adriel had an injury event that made his brain look immediately as it does on the CT scan, one would expect that he had severe and noticeable symptoms.

[392] Dr. Cory testified that there is a relationship between the severity of the injury and the severity of the event that caused it. Most often, for a head injury to result in death, the injury event is severe and involves significant force. There are always some exceptions to that, depending on the nature of the secondary brain injury, the nature of the medical care, and the nature of any medical complications.

[393] Dr. Cory testified that if Adriel had sustained his brain injury as a result of falling off a bed three or more days prior to September 11, she would not expect that he would appear totally neurologically normal for those three days and then develop the severe symptoms he was displaying at Sick Kid’s.

[394] Dr. Cory was asked whether it is possible that the injury to Adriel had not happened as of 11:30 p.m. if someone observed him at that time as a bit fussy, that he appeared not to want to be in his stroller, and upon being picked up, he appeared to be fine and was looking around.

[395] Dr. Cory testified that given these observations, it is possible that the injury had not as yet occurred. She testified that fussiness can be a potential sign of head injury. It can also simply indicate that the baby wants a nap, or his diaper is wet or he is just being fussy. In terms of looking around, the question arises as to whether he is fixing, following, and paying attention to his environment. A baby’s eyes could move while having a seizure. Dr. Cory noted that there is also a certain subjective component to the sounds that a baby may make. If, 45 minutes later, the baby did not appear to have deteriorated, that may or may not support the proposition that the injury had not as yet occurred. It is hard to say.

Retinal hemorrhages and retinoschisis

[396] There were no external signs of trauma to Adriel’s eyes. However, the ophthalmologist’s examination showed that there were retinal hemorrhages in all four quadrants of both eyes.

[397] Adriel also had retinoschisis on both eyes, which refers to the splitting of the layers of the retina such that a pocket or blister of blood pools or collects in an area in the back of the retina.

[398] Adriel also had vitreous hemorrhaging in his right eye. Vitreous hemorrhaging is bleeding into the jelly-like substance that fills the eye. The vitreous sits next to the retina.

[399] Dr. Cory was of the opinion that excessive crying, coughing, or vomiting would not have caused Adriel’s eye findings. Nor did he have a bleeding disorder, a predisposition to bleeding or a metabolic condition that could explain his eye condition. That left her to consider traumatic injury – either accidental trauma or inflicted trauma – as the cause.

[400] Dr. Cory testified that typically, children who have a normal household fall or normal accidental injury do not incur retinal hemorrhages. There are some reports of children with accidental head injuries who have retinal hemorrhages, but they are most often described as few in number and confined to the very back of the eye and not extending to the periphery or edges of the eye. In one reported case, a child died as a result of a television falling on and crushing the child’s skull. That child had retinal hemorrhages and retinoschisis.

[401] Dr. Cory noted that there is less literature about accidental injury and retinal hemorrhages than there is about inflicted head trauma and retinal hemorrhages. Retinal hemorrhages are highly associated in the literature with inflicted head injury.

[402] Dr. Cory testified that retinoschisis is typically seen when there are lots of retinal hemorrhages. It is almost a marker of the more severe end of the spectrum of retinal hemorrhages. Retinoschisis is not commonly seen in infants. A fall from a bed or a caregiver’s arms would be a very unusual explanation for multiple retinal hemorrhages and retinoschisis.

[403] Dr. Cory testified that a finding of extensive retinal hemorrhages, in the absence of an appropriate accidental explanation, typically raises a really high level of concern for the possibility of inflicted head injury. In terms of the language used to describe her level of concern, “highly concerning” or “highly suspicious” is the strongest language that Dr. Cory uses along that spectrum. She is never able to say she is one hundred percent certain that an injury was inflicted as opposed to being accidental. There are always exceptions.

[404] Retinal hemorrhaging could be caused by inflicted trauma in a situation where there is an impact of the child’s head with something that causes a significant deceleration force.

The triad

[405] The triad refers to the combination of findings of subdural hemorrhages, brain injury, and retinal hemorrhages. Historically, this term was used to describe those findings and link them to the possibility of shaking as a mechanism for those findings. Dr. Cory testified that shaking can produce all three findings. However, she does not use the term “triad” or think of it in terms of a grouping of those findings. She prefers to consider each medical finding separately and work through the potential causes of each finding separately. Only at the end of her assessment does she refer to the constellation of findings.

[406] The position statements of the Canadian Pediatric Society and the American Academy of Pediatrics speak of the link between the triad of findings and shaking as a mechanism. However, Dr. Cory stated that the difficulty she has with that concept is that shaking is not the only potential cause of the triad. There are certain severe accidental head injuries that can produce the triad too, such as the fatal crushing head injury caused by the television, in the context of other signs to support the crush injury, such as a skull fracture or external bruising.

[407] The term “shaken baby syndrome”, which was coined 20 or 25 years ago, is too narrow. Twenty years ago, when a baby presented with retinal hemorrhages, an ophthalmologist would have taken the absolute view that the baby had been shaken. There is now an awareness of alternate causes for retinal hemorrhages.

[408] Dr. Cory testified that in cases of suspected shaking, she checks for rib fractures. There is some support through confessions and also people’s anecdotal experience that shaking can involve gripping the child around the chest. Rib fractures in infants have a high association with inflicted trauma. However, some infants who have inflicted head trauma do not have rib fractures.

[409] Dr. Cory testified that some medical professionals are of the view that shaking causes injury to the soft tissue in the back of the neck. The issue of neck injury is not clarified in the current literature.

Bruising

[410] Dr. Cory testified that bruising anywhere on the body of a non-mobile infant would raise concern for inflicted injury. Those concerns increase if there is bruising to a cushioned area of the body, particularly the abdomen and buttocks.

[411] Bruises cannot be accurately dated, except to say that if there is a yellow component to the bruise, it is probably more than 18 or 24 hours old. You cannot compare a red bruise and a yellow bruise in the same child and say that they occurred at different times. The colour of a bruise depends on the type of tissue, the location on the body, the amount of force that produced it and how the body deals with the bruise over time. There are so many factors that influence the colour of a bruise that it is impossible to accurately date it.

[412] Dr. Cory examined Adriel around 5:50 p.m. on September 12, sometime after his neurosurgery. He was in the intensive care unit and on a ventilator. He was on his back. Due to his post-operative state, Dr. Cory did not roll him over and hence did not see his buttocks or his outer thigh. Those areas were photographed the following day by the police and hospital staff.

[413] Dr. Cory noted the following marks and bruises on Adriel’s body:

1. There was an abrasion or superficial skin loss on the tip of Adriel’s nose. Dr. Haasz, who made notes of Adriel’s injuries in the emergency room, made no mention of any injury or abrasion to the nose. Dr. Cory testified that this mark could have been caused when Adriel received bag-mask ventilation or when a breathing tube was inserted. Assuming that it was not caused by medical intervention, it could have been caused by any number of other things. For example, a baby could scratch himself with his own fingernails. In Dr. Cory’s view, this mark, in itself, does not raise a level of concern for inflicted injury.

2. There was bruising across the entire upper half of the left buttock, extending from the left outer hip towards the gluteal cleft. This area of bruising is highly suspicious for inflicted injury. The mechanism causing it would be the direct application of force, either by something impacting the skin in that area in a forceful manner or his buttocks impacting something in a forceful manner. Dr. Cory could not say whether it was a slap, a punch, or some other mechanism, but it involved significant force. One would not expect this type of injury to result from a fall from a caregiver’s arms.

3. There were two red-purple bruises on the left outer hip that appear to be overlying the bony prominence of the hip. There was also a linear red-purple bruise above these two bruises.

4. There were two closely-associated similar green/brown bruises on the outer part of the left upper thigh that were almost rectangular in shape but separated from each other by an area of normal skin. There is a suggestion of a pattern but not a clear pattern that would permit concluding that an object was used. It could have resulted from the use of an object or from forceful pinching of the skin.

5. There were several small abrasions or scratch marks on Adriel’s right foot. There appears to be some bruising under the scratches. This is a common site for attempts at inserting an intravenous line and thus the marks may be related to resuscitation efforts. Dr. Cory described this injury as non-specific. It could have multiple potential causes and, in itself, would not raise specific concern for child maltreatment.

6. There were seven to nine bruises on Adriel’s abdomen, including a patterned bruise to the right of the belly button. It consisted of two similar-looking vertical bruises – one that was 3 cm x 1 cm and one that was 3 cm x 1.5 cm – with an area of normal skin in between. Above that bruise was a 3.5 cm x 1.5 cm bruise. Further up and closer to his chest, there were a number of smaller bruises. On the lower abdomen, above the genital area, there was a 5 cm x 3 cm bruise, overlying the bony prominence of the pubic bone.

The most prominent of the abdominal bruises was the patterned bruise. Potential mechanisms for this bruising would include forceful pinching or the application of force with an object that could produce the pattern. Another possibility is a bite mark, although there were no clear features that suggest a bite mark, such as breakage of the skin or the indentations of teeth; such features could have resolved over time. It is also possible that the bruise started out as a solid bruise but resolved with some central clearing.

The large bruise over the pubic bone was most likely caused by the application of force in that area, where the skin became compressed or crushed against the underlying bone. Another possibility was “tracking” from above, where bruising of the skin of the abdomen trickled downward due to gravity, although bruising caused by tracking usually pools in the scrotum rather than above the penis.

Dr. Cory testified that whatever the mechanism that caused the abdominal bruising, whether it was from grabbing, pinching or a blow or blows, it was caused by significant force and was highly suspicious for inflicted injury. She would not expect a child who has fallen off a bed or been dropped from a caregiver’s arms to sustain abdominal bruising to this extent or severity.

7. Adriel had extensive bruising to his penis, including red/purple bruising and swelling of the head of the penis and red/purple bruising to the entire bottom surface of the shaft of the penis. This type of bruising is extremely uncommon in an infant and is highly suspicious for inflicted injury.

Dr. Cory testified that the mechanisms that could cause this injury include a direct application of force – that is, a blow that compresses or squeezes the penis with enough force to produce bruising, or forceful pinching of the penis. Another possibility would be a biting or sucking-related injury. Whatever the mechanism, some significant force would be required to cause this injury. Such forces are not typically generated during normal child care.

Dr. Haasz had noted edema and an abrasion of the penis. In cross-examination, Dr. Cory agreed that a nurse’s note at 12:56 p.m. describes the penis as swollen with bruising to the shaft but makes no mention of an abrasion. Similarly, the nurse who inserted the catheter at 1:02 p.m. did not note any abrasion to the penis. Dr. Cory herself did not observe any abrasions to the penis, and agreed that there was nothing to suggest that the surface of the skin had been broken by a bite. On the other hand, the bruising of the penis could be produced by a bite in which the area has been compressed but the skin surface has not been broken. She agreed that she did not see anything specific that would support the theory that the bruising was caused by a bite, but she could also not eliminate that as a possibility. Had she seen anything suggestive of a bite, or if she had a significant level of concern that the injury was related to a bite mark, she would have consulted a forensic dentist. She did not do that in this case. The other thing she would normally have done would have been to swab the area for DNA testing and the presence of saliva. However, Adriel’s body had been washed in preparation for surgery. Dr. Cory did not examine him until after surgery.

Dr. Cory noted pinpoint bruises or petechiae toward the base of the penis. Petechiae are pinpoint skin markings caused by the leakage of blood from the smallest blood vessels to the capillaries. They are most likely caused by the direct application of force, which would include sucking. Petechiae could look like an abrasion.

Dr. Cory testified that the fact that the bruises to the penis appear to be darker in colour than other bruises on the body does not mean that the penis received the most impact. The colour of a bruise can relate to the anatomic area in which it is located, the amount of force, the amount of soft tissue in the area, and the progression of healing of that bruise. The fact that the penis is a vascular structure, with lots of small blood vessels that run through the shaft, would influence the colour of the bruise.

Dr. Cory attributed the darkish colour of Adriel’s scrotum area to pigmentation rather than bruising. There was, in her view, no injury to the scrotum.

8. The photograph marked as Exhibit 30(h) shows a mark on Adriel’s right knee. Dr. Haasz did not note this mark in the emergency room. Nor did Dr. Cory note it during her examination of Adriel later that day. Dr. Cory testified that it could be a bruise or a birth mark. If it is a bruise, it is possible that it took some time to develop. However, there is no study that clarifies the time frame required for a bruise to become visible. Time frames will vary depending on the part of the body affected, the amount of force applied, and the depth or amount of tissue involved. This bruise to the knee may have been caused by medical staff during the insertion of the intra-osseus line into the shin bone.

[414] Dr. Cory testified that one cannot say whether these multiple bruises happened all at once or within five minutes of each other or over the course of a couple of days. Furthermore, bruises may take a while to develop. She could not accurately date any of the bruises. Some or any one of them could theoretically be caused by an accident but she would want to hear the details of the accidental mechanism before offering an opinion.

[415] The photographs of the bruises may not represent how they appeared hours or days earlier. The appearance of bruises evolves over time. Dr. Cory agreed, for example, that a bruise in the area of the genitals or buttocks might initially appear to a layperson as a reddish area, possibly consistent with diaper rash, and only later become clearly visible as a bruise.

[416] Dr. Cory was of the view that Adriel’s bruising represents multiple force applications to different regions of his body and is “highly suspicious for inflicted injury.” She was also of the view that the constellation of findings – that is, the bruising, the subdural hemorrhage, the cerebral edema, and the retinal hemorrhaging – is highly suspicious for inflicted injury and is highly unlikely to be the result of accidental injury.

[417] Dr. Cory testified that there are single, odd, once-in-a-while case reports of a severe crushing head injury causing a subdural hemorrhage, brain injury, retinal hemorrhages and retinoschisis in an infant. However, in most of those reports, there are external signs of impact, such as a skull fracture or external scalp injury, particularly when the mechanism is severe enough to cause death.

[418] Dr. Cory testified that it is possible that a subdural hemorrhage could result from a fall from a caregiver’s arms. Brain injury from that height is also possible, as are retinal hemorrhages. Retinoschisis is unlikely but theoretically possible. So, each of these findings is, in theory, possible. However, the presence of all of these injuries together makes it more unlikely that they were the result of a fall from the height of a caregiver’s arms. Most infants who fall from a caregiver’s arms have no injury. Most infants who fall from a caregiver’s arms and impact their head have external signs of impact. A fall from a caregiver’s arms that resulted in a subdural hemorrhage, brain injury, retinal hemorrhages and retinoschisis would be at the most severe end of the spectrum for such a fall. However, Dr. Cory could not say that it was impossible.

Evidence of Dr. Asim Ali

[419] Dr. Asim Ali, who is a staff ophthalmologist in the Department of Ophthalmology and Vision Sciences at the Hospital for Sick Children, was qualified to give expert opinion evidence in the area of pediatric ophthalmology and the evaluation of eye trauma. His main area of research is in anterior segment diseases, or diseases in the front part of the eye that may occur in children. He has no specific training in forensic issues.

[420] Dr. Ali’s work at the Hospital for Sick Children involves dealing with children who have suffered both accidental and non-accidental eye trauma. Children are sometimes referred to his clinic by neurology because they have suffered a head injury. In Dr. Ali’s experience, children who fall off a change table or experience some similar type of short fall typically do not suffer any eye injury unless there has been a direct blow to the eyes.

Examination of Adriel’s Eyes

[421] Dr. Ali examined Adriel’s eyes on September 13, which was one day after his admission to hospital. Adriel was unconscious. There was no sign of external trauma to his eyes. From the outside, his eyes appeared normal. Dr. Ali did not see any swelling or signs of direct injury to the optic nerve. It is possible, however, that he may have missed such an injury if a hemorrhage blocked his view.

Retinal hemorrhages

[422] The retina, which is made up of multiple layers of cells and connections, lines the inside of the eye. Normally, there should be no bleeding in the retina.

[423] Dr. Ali observed retinal hemorrhages in all four quadrants of both of Adriel’s eyes. The retinal hemorrhages were so extensive that it was impossible to count them. Dr. Ali usually stops counting when they reach 50 in number.

[424] The age of retinal hemorrhages cannot be determined based on their appearance. They can last for days or weeks. It would take at least a few weeks for Adriel’s hemorrhages to clear up to the point where they could not be seen on examination. Although retinoschisis may also resolve, remnants of it may be seen later on.

[425] Adriel also had sub-retinal hemorrhages in both eyes. Sub-retinal hemorrhages are hemorrhages underneath the retina.

Vitreous hemorrhage

[426] There was a hemorrhage in the vitreous of Adriel’s right eye.

Retinoschisis

[427] Adriel had retinoschisis in both his left and right eye.

Possible causes of the retinal, sub-retinal, and vitreous hemorrhaging

[428] Dr. Ali testified that abusive head trauma or a severe crushing injury of the skull could cause retinal, sub-retinal, and vitreous hemorrhaging.

Severe crushing injury

[429] Dr. Ali provided examples of a severe crushing injury: a fall from a two-story building; a large heavy object, such as a television, falling on the child’s skull; a person stepping directly on the child’s head; or a severe motor vehicle accident where the child is ejected or the car has rolled over. In these cases, there would be external signs of injury.

[430] A significant amount of force and deceleration would be required to cause the retinal hemorrhaging in Adriel’s eyes. Dr. Ali would not expect a child who has fallen off a bed or from an adult’s arms onto a hardwood floor to have injuries as extensive as those seen in Adriel’s eyes. Based on his experience and his knowledge of the medical literature, a child’s eyes are normal after such typical household falls in the majority of cases. In some situations, there may be some retinal hemorrhages, but they are centered around the optic nerve and usually confined to the retina only. The highest number of retinal hemorrhages that he is aware of in that situation is 12 in each eye.

Abusive head injury

[431] Dr. Ali testified that retinal, sub-retinal and vitreous hemorrhaging are typically described as shaking injuries, that is, a repetitive back and forth movement of the child’s head. He explained that the vitreous jelly inside the eye is much firmer and more solid in children than in adults and is attached to different parts of the retina. It is believed that when there is a shaking back and forth, there is a pulling on the blood vessels inside the eye and that this pulling causes bleeding into the retina.

[432] Dr. Ali would not expect to see the amount of bleeding he observed in Adriel’s eyes from one shake. In studies involving models and cases of confessed child abuse, the mechanism causing retinal bleeding is always repetitive shaking. It is possible that one act of repetitive shaking could cause extensive hemorrhaging and retinoschisis.

[433] Dr. Ali testified that it is possible that striking a child one time in the head with a great deal of force could result in retinal hemorrhaging similar to that seen in Adriel. However, he would also expect to see other signs of injury to the head, such as a skull fracture or bruising.

Possible causes of retinoschisis

[434] Dr. Ali testified that retinoschisis is less common than retinal hemorrhaging and is very uncommon in a typical childhood accident. He had not heard of a single case where a child suffered retinoschisis as a result of falling off a bed or being dropped from an adult’s arms.

[435] Adriel did not have a genetic disorder that could have caused his retinoschisis. There are therefore only two possibilities to explain this condition in his eyes: a severe crush injury, as described above, or abusive head trauma, that is, from shaking.

[436] In terms of the shaking mechanism, Dr. Ali explained that the vitreous jelly can adhere to the centre of the retina. When it is moved back and forth, it can pull on the retina and split it in two. The force required to do this would have to be quite significant. It would also have to be repetitive, although it is not clearly understood why.

[437] Dr. Ali testified that he would not expect retinoschisis to result from an adult striking an infant once in the head.

Opinion re cause of eye injuries

[438] Dr. Ali was of the opinion that the pattern of Adriel’s hemorrhages and the presence of retinoschisis, in the absence of signs of a severe impact, are consistent with abusive head injury. In coming to this conclusion, he did not take into account the bruising to Adriel’s body, his severe brain injury, or the subdural hemorrhage. His opinion was based on his eye findings alone.

[439] Dr. Ali testified that, typically, retinal hemorrhages and retinoschisis will occur immediately after the event that has caused the injury, although he could not say that this is always the case.

[440] Dr. Ali acknowledged that there is a good deal of controversy surrounding the term “shaken baby syndrome” and the exact mechanism that causes the type of eye injury suffered by Adriel.

Evidence of Dr. Manohar Shroff

[441] Dr. Shroff was qualified to give expert opinion evidence in the area of pediatric neuroradiology and in the evaluation of head injuries.

[442] Dr. Shroff has been the staff neuroradiologist with the division of neuroradiology at the Hospital for Sick Children since 2002, and the radiologist-in-chief in the Department of Diagnostic Imagery since 2010.

[443] As a neuroradiologist, Dr. Shroff looks at MR images and CT scans of the brain and spine and provides advice to the treating physicians. He has dealt with cases involving children who have suffered accidental head injury and children who have suffered non-accidental head injury. In assessing whether a head injury is likely accidental or non-accidental, Dr. Shroff takes into account the CT scans and MRI’s, along with clinical findings and the clinical history. The findings with respect to the imaging are only one piece of the puzzle.

The CT scan on September 12, 2010

[444] Dr. Shroff described the subdural hemorrhage as seen on the September 12 CT scan of Adriel’s brain as extensive and occupying almost the entire surface of the right hemisphere. He explained that in a normal brain, there are different shades of grey that are apparent. However, in Adriel's CT scan, there was no grey-white differentiation. This indicates a severe edema, which involves almost the entire right hemisphere and, to a significant extent, the left hemisphere of the brain. The swelling on the right side had caused a shift to the left of the midline structures.

[445] Dr. Shroff observed that the ventricles on the left side of Adriel’s brain were dilated. This was caused by the flow of spinal fluid having been obstructed by the swelling and compression, as well as by the shift of the midline structures. The ventricles on the right side of the brain are not visible because the swelling has compressed them.

[446] The cerebral edema in Adriel’s brain on September 12 was diffuse and widespread. Dr. Shroff testified that it is generally accepted in the medical community that diffuse or widespread edema is more common in non-accidental head injuries than in accidental head injuries. In accidental head injuries, the swelling or edema tends to be more localized.

Causes of cerebral edema

[447] Dr. Shroff testified that if a subdural hemorrhage is large enough and causes a lot of compression, there can be a secondary effect on the brain because it will compress the brain and it will look like edema. However, in Adriel’s case, the extent of the swelling was much more than one would expect for the size of the subdural hemorrhage. It was Dr. Shroff’s opinion that the edema and swelling in Adriel’s brain was also a form of primary injury.

[448] Dr. Shroff testified that the cause of the edema is not well understood. There are various theories about what causes it. One theory is that there is some swelling or damage to the brain stem that might cause this primary injury. He explained that the brain stem contains respiratory centres. If these centres are affected, the child would not be breathing well. The result is that there is decreased oxygen to the brain. This theory has not been validated. A second theory involves respiratory insufficiency, which can have multiple causes, such as suffocation, or raised intracranial pressure from a subdural hemorrhage and the edema itself. Delay in getting medical treatment as things are progressing could result in respiratory insufficiency.

[449] In summary, Dr. Shroff testified that whatever happened to Adriel’s brain, it had two effects:

i) It caused the subdural hemorrhage; and

ii) It also injured the brain tissue itself, resulting in cerebral edema.

Looking for signs of impact

[450] Dr. Shroff looked for signs of impact, that is, for fractures of Adriel’s skull, and for scalp soft tissue swelling. He saw no evidence of either. However, he also testified that CT scans detect only about 70 to 80 percent of fractures. Thus, even though there were successive CT scans, the possibility of a fracture to Adriel’s skull cannot be eliminated.

[451] CT scans often do not pick up soft tissue injury to the scalp – certainly not as many as are detected by clinicians. MRI’s are somewhat better than CT scans in detecting scalp injuries, but they also miss a lot.

The cause of subdural hemorrhages in infants

[452] The most common cause of subdural hemorrhage in infants is trauma, which could be accidental or non-accidental. Adriel’s subdural hemorrhage was widespread, which, in Dr. Shroff’s opinion, suggested non-accidental head trauma.

[453] Dr. Shroff testified that most children who have a short fall, such as from a change table or bed, do not suffer a subdural hemorrhage, although a subdural hemorrhage could result from such a fall. It would be extremely rare, but not impossible, for such a fall to result in the abnormalities that are seen in Adriel’s brain.

Dating the subdural hemorrhage

[454] Dr. Shroff was asked whether the way that the blood appears on a CT scan can assist in terms of dating or attributing a time as to when a subdural hemorrhage occurred. Dr. Shroff pointed to the bright stripe of tissue on the CT scan, which shows the area of the subdural hemorrhage in Adriel’s brain. He testified that he usually sees that in “acute” or very recent subdural hemorrhages, meaning that it could have occurred anywhere from zero days up to 5 to 7 days earlier.

[455] Dr. Shroff testified that when subdural hemorrhages are bright and have a layering effect, such as in Adriel’s case, they are also known as “hyperacute”, which means they could have occurred within a few hours up to a few days. It is difficult to narrow the time within which a subdural hemorrhage could have occurred. Dr. Shroff would not take issue with the fact that the neurosurgeon, Dr. Taylor, who actually saw Adriel’s brain, may be able to narrow the timeframe somewhat.

Whether there is any significance to the fact that Adriel’s brain was more swollen on the right side than on the left side

[456] Dr. Shroff testified that the subdural hemorrhage on the right side of the brain occupied space, thereby obstructing the flow of blood to that side of the brain. The obstruction of the blood flow increased the pressure on that side. As a result, the right side was more affected by edema or ischemia.

Possible mechanisms that cause brain swelling

[457] Dr. Shroff testified that a child who suffers a short fall normally does not have any brain swelling. It would be extremely rare but again, not impossible, for a short fall to result in brain swelling. A short fall – for example, 10 to 12 feet on a concrete floor, where the skull hits the concrete – could result in a fracture, an underlying contusion, and localized focal brain edema. However, Dr. Shroff testified that he would not expect to see the extensive or diffuse brain edema or swelling that appears in Adriel’s brain.

[458] In Dr. Shroff’s view, the type of accident that would give rise to the swelling seen in this case would involve a very high velocity injury, such as a motor vehicle accident.

[459] It was Dr. Shroff’s opinion that if Adriel’s injury were caused non-accidentally, the types of mechanisms that could have produced it could include: i) blunt force trauma, that is, by an object striking the head or the head striking an object; ii) shaking; or iii) a combination of both blunt force trauma and shaking. Regardless of what the mechanism, the force would have been significant.

[460] Dr. Shroff testified that it is not possible from a radiological perspective to determine which of these three scenarios is the most likely explanation. In cross-examination, he agreed that he stated in his report as follows:

These imaging reports demonstrate that the patient suffered a severe brain injury, resulting in a large blood clot accumulating over the brain, causing compression and swelling of the brain. The findings, in the absence of any other cause of bleeding, are most in keeping with blunt force trauma to the head. Such trauma could be accidental or non-accidental.

[461] Dr. Shroff was asked the basis for his view, as expressed in his report, that the findings were “most in keeping with blunt force trauma.” He stated that subdual hemorrhages occur most often from blunt force trauma, but one cannot rule out shaking or a combination of both. Shaking is fairly controversial. It is very difficult to conclusively prove how much damage shaking alone can cause. Given the extensive subdural hemorrhage on the right side of Adriel’s brain, Dr. Shroff was of the view that it was more likely caused by blunt force trauma than any other sort of mechanism.

[462] Dr. Shroff was not familiar with what Dr. Kepron described as the classic description in the medical literature of subdural bleeding caused by shaking – that is, that the bleeding is bilateral or on both sides of the head and consists of a thin film of blood.

The CT Scan on September 13, 2010

[463] Dr. Shroff described the damage to Adriel’s brain, as seen on the September 13, 2010 CT scan as widespread, involving both hemispheres.

The September 15, 2010 MRI: Diffusion imaging

[464] The MRI done on September 15, 2010, shows that 70 to 80 percent of Adriel’s brain was affected by diffusion restriction, meaning that the molecules were not moving around properly in those areas of his brain. Diffusion restriction usually indicates that there is hypoxic ischemic damage to the brain: there has been a decreased blood supply to the brain and decreased oxygen delivery to the brain, which results in the cells dying. The MR images indicate a very poor prognosis.

[465] Dr. Shroff testified that he would not expect to find this type of diffusion restriction in a child who has suffered a short fall. This type of diffusion would require a significant injury to the head.

The October 12, 2010 MRI: T2 Images

[466] The MR images taken on October 12 of Adriel’s brain show what Dr. Shroff described as an end stage brain with chronic and very severe damage. The swelling has gone down, the brain has lost volume, and there are areas of necrosis or cystic change.

Possible symptoms

[467] Dr. Shroff testified that questions as to the symptoms that Adriel may have demonstrated in the minutes or hours after he suffered this brain injury are best put to the neurosurgeon, Dr. Taylor.

Evidence of Dr. Michael Taylor

[468] Dr. Michael Taylor was qualified as an expert in pediatric neurosurgery and the evaluation of brain injuries. He has been a staff neurosurgeon at the Hospital for Sick Children since 2004. He is also a Senior Scientist at the Hospital for Sick Children Research Institute and a Full Professor of Surgery at the University of Toronto.

[469] Adriel was in a deep coma when Dr. Taylor first saw him. Dr. Taylor described Adriel as being covered in bruises “from head to toe, on the front and on his back.” Dr. Taylor acknowledged that he did not make any notes of the bruises as he quite rightly assumed someone else would document those injuries. Dr. Taylor was also occupied with trying to organize an operating room. He acknowledged that an email that he sent on October 20, wherein he stated that “on quick exam, [Adriel] was covered with bruises, including bruising and lacerations to his genitals and anus” was inaccurate. He admitted that he was not aware of any lacerations to Adriel’s anus or penis.

[470] I did not find Dr. Taylor’s evidence with respect to the bruising or injuries on Adriel’s body to be reliable, given his lack of notes and his understandable preoccupation with trying to ready an operating room to perform emergency and life-saving surgery on Adriel. For an accurate description of Adriel’s bruises and injuries, I rely on Dr. Cory’s evidence and the photographs of Adriel that were taken at the hospital by the police and hospital staff.

[471] Dr. Taylor testified that the CT scan showed that the subdural hemorrhage was 1.3 centimetres thick and was putting pressure on Adriel’s brain: his brain was being choked, partly by the swelling of the brain itself and partly by the subdural hemorrhage. Adriel’s fontanel was rigid and extended. In order to temporarily bring down the intracranial pressure, Dr. Taylor inserted a needle through the fontanel and into the subdural hemorrhage, and drew out 40 millilitres of blood into a syringe. He performed this procedure while Adriel was still in the CT room.

[472] Dr. Taylor testified that the blood in the syringe was fresh and appeared to be only a few hours old. He “guessed” that it was less than six to eight hours old, and most likely less than 12 hours old. He would be surprised if it were 15 hours old because blood should clot in that period of time. He stated that he was “guessing” because there is no scientific data in this area on which he could rely. He noted that the possible presence of cerebral spinal fluid in the 40 millilitres of blood could have tricked him into thinking that it was fresher than it actually was. In addition, the syringe only brought up liquid blood, as opposed to the clotted blood from the subdural hemorrhage.

[473] Dr. Taylor described the subdural hemorrhage as medium in size. It was certainly not small, but he has seen larger ones. Had the subdural hemorrhage been Adriel’s only medical problem, he would have recovered.

[474] Dr. Taylor exposed most of Adriel’s skull when he performed the bilateral craniectomy. He did not see any bruises, lacerations, or hematomas to the scalp. He saw no fractures to the skull. Dr. Taylor testified that he specifically looks for fractures as they may be useful in terms of the surgery and accessing the subdural hemorrhage.

Dating a subdural hemorrhage

[475] Dr. Taylor testified that dating a subdural hemorrhage is not a precise science. There is no scientific data in this area. He is able to tell if a clot is less than a day, more than a week, or more than a month old. Based on the fact that Adriel’s subdural hemorrhage was a mixture of liquid red blood and clotted blood, Dr. Taylor “guessed” that it was probably somewhere between 8 and 12 hours old, but it could be 15 hours old. At another point during his testimony, in distinguishing his estimates of the age of the subdural hematoma, as opposed to the age of the “fresh” blood taken out by the syringe, he stated that the hematoma could be up to a day old:

Q. So in terms of helping us at all, to the extent that you can, with when this happened, as I understand your evidence, that you think, based upon your experience, and it’s limited with respect to this, that it probably happened in a few hours, six to eight, twelve seems to be tops; is that fair?

A. No, I think it could be up to a day.

Q. Okay. And would you agree with me that what you said before with respect to this very topic is that you would be very surprised – or that you would be pretty surprised if this blood was more than 15 hours old? That’s what you said before?

A. With that amount of fresh blood, I would be surprised – the fresh blood, I would be surprised if it was that old. The hematoma –

The Court: Older than 15 hours?

A. Older than 15 hours. But the hematoma, the solid part, could be older.

[476] Dr. Taylor did not see any evidence of an old subdural hemorrhage that had re-bled. This is something that he routinely looks for. He would be able to distinguish between a subdural hemorrhage that is one-day-old versus one that is three or four-days-old. He saw no evidence during surgery of any subdural hemorrhage that was three or four-days-old.

Cause of Subdural hemorrhages in infants

[477] Dr. Taylor testified that, generally speaking, any kind of head injury, and usually a blunt head injury, is the cause of a subdural hemorrhage.

[478] The most common cause of subdural hemorrhages in infants is non-accidental injury. A subdural hemorrhage could result from a fall from a caregiver’s arms, but it is a remote possibility. The typical short fall usually results in a goose egg over the area where the child landed and a linear skull fracture right underneath. Only very rarely will there be some red blood cells underneath.

[479] In Dr. Taylor’s view, it was “ridiculous” to suggest that falling off a bed could result in an acute subdural hemorrhage. There is insufficient energy generated from such a fall – a person simply does not pick up enough speed – to cause a subdural hemorrhage.

[480] Dr. Taylor testified that he had no doubt that Adriel suffered a non-accidental injury, probably from shaking because there was no evidence of blunt force trauma.

Diffuse Brain Injury

[481] Dr. Taylor testified that in addition to the subdural hemorrhage, Adriel also had a diffuse brain injury. By “diffuse”, he was referring to the fact that the entire right hemisphere of the brain was injured, as well as the left frontal lobe. The brain injury was “catastrophic.”

[482] Dr. Taylor was of the opinion that the brain injury was not secondary or caused completely by the subdural hemorrhage. The pressure from the subdural hemorrhage did not have sufficient energy to cause the right hemisphere injury plus the injury to the left frontal lobe. When a subdural hemorrhage causes a secondary brain injury, it usually just involves small portions of the brain, particularly the middle part; for example, the temporal lobe.

Causes of diffuse brain injury

[483] The usual cause of a brain injury to the extent evident in Adriel’s brain is a high velocity injury. Usually, it is a rapid acceleration/deceleration situation, such as in a motor vehicle accident.

[484] Dr. Taylor testified that when he sees this kind of brain injury in children, it is usually in the setting of a non-accidental injury. The brain has to be going really fast and then be stopped. It is not the type of injury that could result from a fall onto the floor or a fall from a caregiver’s arms. Even if an infant were dropped 10 or 20 feet, they would not sustain this kind of diffuse brain injury. Such a fall would result in a goose egg and linear fractures. They do not involve diffuse whole hemispheric injuries.

[485] Dr. Taylor was of the view that Adriel’s primary brain injury was the result of a non-accidental injury, probably shaking. Shaking was more likely than blunt force trauma because he saw no evidence of a skull fracture or contusion on the brain, scalp or galea. There was no evidence of any direct force having been applied to the skull or scalp that would be consistent with the magnitude of the injury. Even being hit on the head with a baseball bat would not result in the kind of diffuse injury here, involving the whole right hemisphere. Although impact could be said to be a possible cause, it was “very very very unlikely” because there would have been some evidence of it. A baby’s brain is more susceptible to injury by shaking than an adult’s brain because it is softer.

[486] When asked whether Adriel could have sustained both a shaking injury and a blunt force trauma injury, with the blunt force trauma injury simply not leaving any signs behind, Dr. Taylor stated that it was possible, but highly unlikely. If there had been a blunt force that caused the subdural hemorrhage, he would expect to see some evidence of it.

[487] Dr. Taylor testified that a subdural hemorrhage caused by shaking is usually bilateral. However, he stated that he was “not troubled” by the fact that Adriel’s subdural hemorrhage was unilateral. He also acknowledged that a subdural hemorrhage caused by shaking is usually thin, which is why he does not operate on most of the children who present with such a non-accidental injury.

[488] When asked if he took the pattern of Adriel’s subdural hemorrhage into account in forming the opinion that it was caused by shaking, Dr. Taylor stated:

A. It’s not the hemorrhage. It’s more the primary brain injury that says to me he suffered a significant trauma that required significant force. The hemorrhage being much less important.

Q. But in terms of the pattern of the hemorrhage, you’ve indicated that while it’s often thin and bilateral, you have seen it to be unilateral as well.

A. Yeah, it could be. It could be unilateral and it can occasionally be big like this.

[489] In cross-examination, Dr. Taylor testified that in his view, the subdural hemorrhage and the primary brain injury happened simultaneously from the same event. The subdural hemorrhage then built up over time. The initial force likely caused a tear in the bridging vein. Based on his experience, he was of the view that the bleeding would have gone on for minutes and certainly less than an hour. It could start and stop but that is unlikely. The diffuse brain injury probably resulted immediately from the event. It did not spread. Over time, it might look a little bit worse because such an injury causes swelling. The swelling can cause the midline shift. However, in terms of the CT scan, Dr. Taylor believed that most of what appears on the scan with respect to the brain injury is what happened at the time of the event.

Symptoms

[490] Dr. Taylor testified that a child such as Adriel, who has suffered a subdural hemorrhage and a primary brain injury, would not necessarily become unconscious right away. However, the child would not appear to be normal. Symptoms could range from dense coma to a baby who appears listless, lethargic, restless or sleepy. He could also appear to be generally unwell for an unknown reason. It is difficult to evaluate babies because you can’t ask them questions.

[491] Dr. Taylor testified that a laughing, happy, playing baby, or a baby who is responding to stimuli, is inconsistent with that baby having suffered a primary brain injury. It is unlikely that a baby who is making normal baby sounds or normal responsive noises has suffered a primary brain injury.

[492] Dr. Taylor agreed that his belief that the blood clot was unlikely to be 15 hours old, combined with the observations of a person who described Adriel as normal at 11:30 p.m., suggest that the event that caused Adriel’s brain injury had not yet happened. Dr. Taylor went on to say that this assumes that the baby was truly normal, which includes behaviour such as laughing, playing, feeding, responding to stimuli, etc.

[493] Dr. Taylor testified that the best evidence in terms of assessing Adriel’s brain injury is the CT scans and the MRI’s. The next best evidence is his own observations when he operated on him. Dr. Ramsay would be in the third best position, as he only saw Adriel’s brain nine weeks later. This would not be the case if Adriel had died shortly after the surgery and the autopsy was conducted closer in time to the fatal injury.

[494] In cross-examination, Dr. Taylor agreed that forensic pathologists see babies that he would never see – that is, babies who never make it to the hospital because they die quickly or unexpectedly of their injuries. Dr. Taylor also agreed that he would not necessarily have heard about the cases that Dr. Kepron and Dr. Ramsay spoke about at this trial – those rare cases with which they are personally familiar.

Evidence of Dr. Charis Kepron

[495] Dr. Kepron was qualified as an expert witness in the area of forensic pathology.

[496] Dr. Kepron has been employed as a forensic pathologist with the Ontario Forensic Pathology Service in the Eastern Region since 2012. She is also a staff pathologist in the Department of Pathology and Laboratory Medicine at the Ottawa Hospital and an assistant professor in the Department of Pathology and Laboratory Medicine at the University of Ottawa.

[497] Dr. Kepron testified that a review of the medical literature, studies, and experiments is a very important part of what is called “evidence based medicine.” Although reports that deal with a single case may be interesting, it must also be kept in mind that these are isolated cases and may be difficult to apply across an entire population. There may also be difficulties in the accuracy of information provided by people such as caregivers as to what actually happened when a child sustains an injury. Memories may be faulty. What the caregiver says may be misinterpreted by the interviewer.

[498] Dr. Kepron testified that there has been controversy regarding experiments involving crash test dummies and whether the conclusions drawn from those studies can be applied to the human body. She commented on one such study in which two forensic pathologists reported that the force generated in vigorous shaking was not as great as the force generated in a short fall. Their paper is considered to be very important and has acted as a springboard for additional research in this area.

[499] Dr. Kepron agreed that other research has postulated that in order to shake a baby with enough force to cause the type of injury in this case, there would have to be further injury to the spinal area. This issue is discussed in the medical literature. Dr. Kepron saw no indication of injury to Adriel’s spine.

[500] Dr. Kepron conducted the autopsy of Adriel on November 10 and 11, 2010. She concluded that Adriel died as a result of complications of head injury. This conclusion would have been the same regardless of what percentage of the injury was due to primary brain injury and what percentage was due to secondary brain injury.

[501] Prior to the autopsy, a full skeletal survey of Adriel’s body was completed. X-rays were taken of his entire body.

[502] Dr. Kepron had access to all of Adriel’s medical records from the hospital. She reviewed and relied on the medical observations of Dr. Shroff, Dr. Ali, Dr. Taylor and Dr. Cory. Dr. Kepron asked the neuropathologist, Dr. Ramsay, to assist her in the autopsy with respect to the central nervous system, that is, the brain and spinal cord. Although she deferred to the radiologist, ophthalmologist and neurosurgeon in terms of their objective findings, she did not defer to their opinions regarding the mechanism of injury, which is her area of expertise.

[503] Dr. Kepron noted that all the bruising that was observed on Adriel’s body at the time of his admission to the hospital had healed by November 10. There was no damage to his heart. He appeared from the neck down to be a healthy normal baby.

[504] Adriel’s brain was profoundly abnormal. It was smaller, softer and duskier in appearance than a normal brain. The two halves of the brain were sack-like and hollow. There appeared to be a very severe hypoxic ischemic injury in the past that caused these abnormalities. A hypoxic ischemic injury is an injury caused by the slowing or stopping of the flow of blood to the brain, thereby depriving it of oxygen and nutrients. When that happens, the nerve cells in the brain start to die. If enough of the neurons die, the brain loses mass and develops cystic spaces like those seen in Adriel’s brain. Adriel had suffered severe and permanent brain damage.

[505] Dr. Kepron observed golden brown staining on the base of the skull, which indicated that blood had been present there at some point in time and that Adriel had suffered a subdural hemorrhage. The presence of blood in multiple areas around the skull does not necessarily mean that there was more than one impact to the head.

[506] In terms of dating the subdural hemorrhage, Dr. Kepron could only say that it was weeks old. However, based on Dr. Taylor’s description of the 40 millilitres of blood that he withdrew from the subdural hemorrhage as red and flowing, she was of the view that the hemorrhage was recent or had occurred within hours of presentation. However, this area of science is not precise enough to opine that it had occurred 5 hours earlier as opposed to 15 hours earlier.

[507] Dr. Kepron relied on the head imaging done in September and the opinions of the doctors who saw Adriel, including Dr. Taylor’s operative notes, in order to fully understand the extent of the hemorrhage. Postmortem, she was not in a position to say how much of the brain swelling was caused by the subdural hemorrhage and how much was due to the brain injury.

[508] Dr. Kepron saw no evidence of a skull fracture. She understood that the pieces of skull removed by Dr. Taylor were retrieved, examined and x-rayed as well. Dr. Kepron did not see any signs of impact to Adriel’s head, either visually or through imaging. She testified that that does not necessarily mean there was no fracture. CT scans, MR images, and x-rays often miss fractures if they are fine and thin. Such fractures may not show up on the imaging studies and, by the time of the autopsy, would have healed.

Possible causes of Adriel’s injuries

Eye injuries

[509] Dr. Kepron did not examine Adriel’s eyes but was aware that there was retinoschisis and extensive retinal hemorrhaging in all four quadrants of both eyes upon his admission to hospital. She would expect his eyes to look much different nine weeks later.

[510] Dr. Kepron testified that given the presence of retinoschisis and the extensive nature of the retinal hemorrhages, it is likely that they were the result of a non-accidental injury to the head involving significant head trauma.

[511] A blunt force injury or impact to the head could cause these eye injuries. Although it is a controversial issue, they could also be caused by shaking, or a combination of blunt force trauma and shaking. It would have to be a very violent shaking.

[512] Dr. Kepron testified that the medical literature indicates that retinoschisis is not seen in typical childhood falls. It occurs in the context of motor vehicle collisions or crushing types of injuries, where the child is crushed, for example, under a heavy piece of furniture. In cross-examination, Dr. Kepron testified that she was aware of isolated case reports where retinoschisis was caused by blunt impact head trauma that was of a lesser degree than a crushing type of head injury. In one case, a child suffered retinoschisis after falling down the stairs. However, that would not be a typical result. Regardless of the mechanism that causes retinoschisis, there still has to be a significant force.

[513] Retinoschisis has also been described in the context of shaking. More than a gentle shaking would be required.

[514] Dr. Kepron testified that she would not expect to see the constellation of eye injuries suffered by Adriel in a child who has fallen from a bed. As to whether a child could suffer these eye injuries as a result of a fall from an adult’s arms, it would depend on the details of the particular fall. She could not exclude that possibility.

[515] Dr. Kepron testified that pathologists are aware of the positions taken by the Canadian Pediatric Society and the American Academy of Pediatrics and take them into account in their assessments. However, pathologists also look at all the medical literature. Things evolve over time and have done so in the past, specifically with respect to eye findings. For example, 10 or 15 years ago, the position of the Canadian Pediatric Society and the American Academy of Pediatrics was that the presence of retinal hemorrhages in a baby meant that the baby had been shaken. It is now known that this position is inaccurate. The current practice of routinely examining children who present with certain symptoms has led to the realization that there are many different situations where retinal hemorrhages may occur outside of trauma.

[516] Dr. Kepron testified that there are respected professionals within the medical field, including pathologists, neurosurgeons, neurologists, and radiologists, who believe that shaking alone cannot kill a child or cause significant injury such as the injuries suffered by Adriel.

Subdural hemorrhage and the primary brain injury

[517] The subdural hemorrhage, from Dr. Kepron’s perspective as a pathologist, was the most significant injury in terms of her rendering an opinion as to the mechanism of injury and the cause of death. It was not the most significant injury from a clinical perspective since a subdural hemorrhage can be treated.

[518] Dr. Kepron testified that it is unlikely that the subdural hemorrhage, on its own, caused the extensive brain injury in this case. It is also unlikely that all the brain damage happened instantly at the time of trauma.

[519] A subdural hemorrhage results when force is applied to bridging veins. These are small, fragile veins that pass between the surface of the brain and the dura. When a force is applied to the head, these veins can tear. Blood then leaks out onto the surface of the brain. It is difficult to say how fast and over what period of time the bleeding would continue.

[520] Dr. Kepron testified that there is no correlation between the size of a subdural hemorrhage and the amount of force applied. However, in order to cause primary injury to the brain, there does have to be a significant force applied to the head. A blunt force can cause both a subdural hemorrhage and some level of brain injury.

[521] When a subdural hemorrhage is caused by impact, the impact and the subdural are not necessarily in the same spot. One part of the head could receive the impact and the subdural hemorrhage could be in a different place.

[522] Dr. Kepron testified that Adriel’s subdural hemorrhage and primary brain injury could have been caused by blunt force trauma, forceful shaking, or a combination of both. However, in her opinion, the most likely cause of the subdural hemorrhage and brain injury was blunt force trauma – in other words, the application of force to the head, either by way of a firm object impacting the head or the head impacting the object. Although external signs of trauma in this scenario are commonly seen, one may not necessarily see an impact site.

[523] The force required to cause Adriel’s brain injuries would be significant.

[524] Dr. Kepron testified that the classic description in the literature of subdural hemorrhaging caused in cases of “shaken baby syndrome” – that is, where there has been no impact to the head and only “pure shaking” – is that the subdural hemorrhage is bilateral or occurs on both sides of the brain. In addition, the bleeding consists of a thin film of blood. Adriel’s subdural hemorrhage differed from this classic description in two ways: first, his subdural hemorrhage was unilateral or predominantly on the right side of the brain; secondly, the volume of blood constituting the hemorrhage was not a thin film but was large enough that it was physically pushing his brain over towards the left. These differences led Dr. Kepron to conclude that Adriel’s injuries were more likely caused by impact rather than by shaking. She did not completely eliminate shaking as the mechanism of injury because there can always be exceptions or atypical presentations.

[525] Dr. Kepron testified that there are isolated cases of fatal head injuries resulting from what would be considered to be a typical childhood fall but these are very rare. It is unlikely that a fall from a bed could have caused these head injuries. It is also unlikely that a fall from an adult’s arms could cause the injuries, although it cannot be excluded and would depend on the details of the fall. Dr. Kepron cited one case study where a child fell from a caregiver’s arms, hit his head on a linoleum floor, and developed a fatal head injury. This is an isolated case but it did happen and could happen again. These isolated cases cause forensic pathologists to be circumspect or cautious and to rely on the objective medical evidence available.

[526] Dr. Kepron was of the view that the bruises to Adriel’s body, as seen in the photographs taken on September 13, could have been caused from pinching, a closed fist, or perhaps some kind of poking or prodding. Although the bruises appeared to be recent, or to have occurred within hours, she agreed that it is extremely difficult to date a bruise from its appearance to the naked eye. The injuries need not have occurred all at once but over a period of time.

[527] Taking into account Adriel’s eye injuries, head injuries and the non-fatal but extensive bruising to various parts of his body, Dr. Kepron was of the view that the most likely explanation was inflicted injury.

Symptoms

[528] Dr. Kepron testified that the symptoms that would have immediately followed the trauma to Adriel’s brain that caused the subdural hemorrhage and the brain injury could range anywhere from crying to immediate unconsciousness. In a head injury this severe, the baby would not appear normal. The meaning of “normal” can vary; however, not appearing normal would be different from a fussy baby who simply appears to want to be picked up. There could be inconsolable crying, vomiting or lethargy. To an untrained observer, the baby could appear to be simply unwell following a head injury.

[529] Dr. Kepron explained that symptoms may evolve differently depending on whether the cranial pressure increases slowly or suddenly. With a slow increase in pressure, an individual may appear normal or not profoundly ill. Only after a certain threshold is met do the symptoms begin to evolve. However, when the pressure increases rapidly, the symptoms appear sooner.

Evidence of Dr. David Ramsay

[530] Dr. Ramsay was qualified to give expert opinion evidence in the area of neuropathology.

[531] Dr. Ramsay has been employed as a staff neuropathologist with the Department of Pathology at the London Health Science Centre since 1990. He has been a staff pathologist with the Department of Pathology and Laboratory Medicine at the Hospital for Sick Children since 2002. He is also a professor in the Department of Pathology at the Faculty of Medicine with the University of Western.

[532] Dr. Ramsay reviewed and relied on Adriel’s medical charts, the reports on the CT scans, MR images, and skeletal imaging, and Dr. Ali’s findings regarding Adriel’s eyes. He assisted in the removal of Adriel’s brain, spinal cord and eyes during the autopsy.

[533] Dr. Ramsay testified that Adriel’s brain had multiple areas of softening and cyst formation, which were more marked on the right side than on the left side. That a subdural hemorrhage had been present was evident from the yellow discolouration or presence of hemosiderin on the right side of the brain and in and around the remaining dura.

Subdural Hemorrhages

The cause of a subdural hemorrhage

[534] Dr. Ramsay explained that a subdural hemorrhage is caused by the bleeding of an artery, vein or capillaries. In this case, the most likely source of the bleeding was a bridging vein. Bridging veins come out on the surface of the hemispheres close to the midline or top of the head, travel across the surface of the brain, and then move into the dura and enter large canals called sinuses.

[535] In terms of how bridging veins can be torn, Dr. Ramsay testified that the theory is that the tearing requires an abrupt movement or movements of the head that stretch the vein. The movement has to be quite abrupt. Dr. Ramsay opined that a bridging vein was torn in Adriel’s case because of the large size of the subdural hemorrhage.

[536] The normal pattern of bleeding is that it goes on for some time. A blood clot can develop almost immediately. The brain itself may help stop the bleeding by swelling, which compresses the artery.

Dating a subdural hemorrhage

[537] In terms of dating the subdural hemorrhage, Dr. Ramsay could only say that it had occurred weeks earlier. The fact that Adriel lived nine weeks after the event meant that a lot of healing had taken place, which can obscure many of the reactions on which pathologists base their more precise conclusions. Pathologists are better at figuring out what happened acutely or recently when an autopsy takes place within two or three days of the event. For that reason, it was important for Dr. Ramsay to interpret the findings of the treating physicians within the context of his neuropathology findings.

[538] Dr. Ramsay testified that he would not be comfortable in saying that a subdural hemorrhage was 11 hours old versus 15 hours old. Clinical symptoms can be useful in trying to date it but the interval between the impact and the first symptoms will depend on how fast the blood is accumulating. That rate can vary on a case by case basis. The fact that Adriel had a large subdural hemorrhage does not mean that he necessarily bled quickly.

[539] Dr. Ramsay agreed that he would defer to Dr. Taylor in terms of refining the timing of the subdural hemorrhage in light of the fact that Dr. Taylor actually observed the blood.

Symptoms of a subdural hemorrhage

[540] It is possible that a child who sustained what ultimately became a large subdural hemorrhage could initially, after the event, simply appear to be unwell.

Severe cerebral edema

[541] Cerebral edema can result as a secondary effect of a subdural hemorrhage. It can also arise directly from the traumatic event that caused the subdural hemorrhage. Based on his examination of Adriel’s brain nine weeks after his admission to hospital, Dr. Ramsay could not say how much damage was as a result of a primary brain injury versus how much was the result of secondary swelling due to the subdural hemorrhage. Whether the brain damage was all primary or all secondary or a combination of both, the brain, nine weeks later, would end up looking the same, with the same severe damage.

Mechanism of injury and symptoms

[542] In general terms, the forces that are suspected in traumatic brain injury in children fall into three groups: i) shaking, where the brain is imagined to swirl around inside the head, disrupting its structure, causing blood vessels to tear, and rendering the child unconscious; ii) impact injury, where something hits the head or the head hits something; and iii) a combination of both shaking and impact.

[543] If the force involved, whether it was from shaking or impact, produced subdural bleeding and immediate damage to the brain, the child would be immediately and obviously unwell.

[544] Dr. Ramsay testified that on rare occasions, after what amounts to a short fall, children may develop subdural hemorrhages. In these instances, they may be fine after the fall but subsequently deteriorate. The type of fall that might produce a subdural hemorrhage is highly controversial. Dr. Ramsay noted that when a child has a large subdural hemorrhage, there is a tendency on the part of clinicians to disbelieve parents who report a short fall. However, he added that even among experts who accept that short falls can produce large subdural hemorrhages, it is recognized that these are exceptionally rare events.

[545] Dr. Ramsay testified that in cases where the traumatic event has caused both a subdural hemorrhage and primary brain damage, the forces involved would be substantially concerning to parents and involve obviously alarming injuries.

Examination of Adriel’s eyes

[546] Dr. Ramsay observed evidence that there had been retinal hemorrhages and retinoschisis in both of Adriel’s eyes. Yellow staining in the sheath of the optic nerve indicated that there had also been optic nerve sheath hemorrhages, which are often seen when there have been retinal hemorrhages. The optic nerve sheathe hemorrhages would not be visible to a clinician during an eye examination because they are behind the eye and scans are not sufficiently sensitive to detect them.

Is it possible that the subdural hemorrhage, on its own, caused all of the brain and eye injuries?

[547] In cross-examination, Dr. Ramsay testified that it is possible that the subdural hemorrhage, on its own, caused all of the brain injuries, the retinal hemorrhages and the retinoschisis. If the subdural hemorrhage were, in fact, the only primary injury, it is possible that it was a pure impact injury. Although it would not be a common expectation that an impact from a short fall could have produced all of Adriel’s injuries from the neck up, it is possible.

[548] Dr. Ramsay explained what would happen if the subdural hemorrhage, on its own, caused all the brain and eye injuries. In that scenario, the subdural hemorrhage grows and grows. When it becomes very large, it presses on the brain. The pressure on the brain causes the brain injury. The brain swelling affects the blood draining from and into the eyes, which leads to the retinal hemorrhages. Dr. Ramsay noted that this is a very controversial conclusion and that he would be open to criticism on this issue because he is not a surgeon, radiologist or pediatrician. Most pediatricians would say that retinal hemorrhages of the severity seen in this case cannot be caused by brain swelling and must have been caused by force. Most pediatricians believe that retinal hemorrhages and retinoschisis indicate shaking or possibly an impact injury. Forensic pathologists are not so sure. Dr. Ramsay gave an example of a case in which he was involved where a 12-month old child fell from the back of a sofa and suffered extensive retinal hemorrhages and retinoschisis as a result of brain swelling. This is the only such case that he was aware of.

[549] Dr. Ramsay testified that if, upon admission, a child has retinal hemorrhages but the brain is not very swollen, there is a suggestion that the retinal hemorrhages were caused by trauma. However, when there is severe brain swelling, it cannot be determined whether the retinal hemorrhages and retinoschisis were caused by specific traumatic injury or have just resulted from what is going on in the head. There is so much that is not known regarding the effects of brain swelling on the blood supply and the retina. Again, he noted that pediatric ophthalmologists have a very different opinion on this matter and would take strong exception to his view.

[550] Dr. Ramsay testified that one would expect to see a point of impact with a subdural hemorrhage like the one in this case. However, he agreed with Dr. Shroff’s testimony that the fact that a fracture did not show up on the imaging does not mean there wasn’t one. Dr. Ramsay did not observe any fractures, but by the time he examined the skull, a hairline fracture would have healed. Dr. Ramsay did not receive or examine the pieces of skull removed by Dr. Taylor. In summary, one cannot say that there was a fracture, but one also cannot eliminate that possibility.

[551] No bruises to the scalp were observed when Adriel was admitted to hospital, but they could have been missed, given the urgency in dealing with his condition. In addition, a clinical examination will not reveal sub-scalp bruises, which is bleeding into the layers of the skull that are not visible from the outside. Those are only visible when the scalp is examined postmortem. Neurosurgeons may or may not notice bruising in the part of the scalp that they exposed, but they don’t expose the entire scalp. There may be bruises present outside the operative field. Some swelling of the scalp may be visible from neuroimaging but the mere fact that it is not visible does not exclude bruising.

[552] Thus, if the subdural were the only primary injury, one would expect to see an impact site but the fact that an impact site was not observed does not, for the above reasons, mean that there wasn’t one.

Is there a reasonable possibility that shaking occurred if the subdural hemorrhage was the primary injury and the cause of the brain swelling, brain injury, and eye injuries?

[553] Dr. Ramsay was asked whether there is a reasonable possibility that shaking occurred in this case if the subdural hemorrhage was the primary injury and ultimately the cause of the brain swelling, brain injury and eye injuries.

[554] Dr. Ramsay testified that based on the medical literature and conflicting bioengineering data, he used to be very skeptical that shaking was the cause of injury in suspected child abuse cases. However, over the years, he has become convinced that in cases where there are no impact injuries to the skull or head, shaking, as a mechanism, has to be entertained. Where shaking really becomes a strong contender is when the brain is swollen and there are rather small bilateral subdural hemorrhages. In those cases – the so-called “triad” cases – shaking is a possibility, but it remains controversial and a lot of other things must be ruled out.

[555] Dr. Ramsay testified that this case is not one of those shaking cases. In this case, there is a single big subdural hematoma and big changes in the underlying brain that may be related directly to trauma or to the big subdural hematoma. In order to find shaking as a cause in this case, the shaking would have to have resulted in the tearing of one of the bridging veins. This is possible but it does not fit the typical pattern. Shaking causes small bilateral subdural hemorrhages that are not big enough by themselves to cause mischief. The mischief caused by shaking is from the force of the injury passing through the brain and disrupting the veins. This is what Dr. Ramsay referred to as the shuddering effect.

[556] In addition, calculations from the bioengineering specialists suggest that one cannot generate enough force by shaking a child to cause tearing of the bridging veins. He added that the extent to which one relies on the bioengineered models depends on how closely the model replicates the clinical state.

[557] Dr. Ramsay testified that if shaking occurred, the subdural hemorrhage would not be the only primary injury; there would be a primary brain injury.

Symptoms when the subdural hemorrhage is the primary injury and, on its own, causes all of the brain and eye injuries

[558] Dr. Ramsay testified that if the subdural hemorrhage were the primary injury that caused all the brain swelling and brain and eye injuries, he would expect that the force or impact that caused the subdural hemorrhage would render the child unconscious for a brief period. The child would then come to, appear fine and have a lucid period during which they would react normally to stimuli. However, after a period of time, as the subdural accumulates, the child’s conscious level would deteriorate. The child would become sleepy and then unconscious. Dr. Ramsay estimated that the period of time over which these things occurred could be anywhere from one or two hours to one or two days. If there is a quick rapid bleed, the period of lucidity could be only a few minutes.

Symptoms when trauma causes both a subdural hemorrhage and brain injury

[559] Dr. Ramsay testified that he could not say in the present case whether the moment of impact caused the subdural hemorrhage, which then caused the brain and eye injuries, or whether the impact caused the subdural and brain injury at the same time. He could not make that distinction.

[560] Dr. Ramsay testified that a fall from a caregiver’s arms could not account for the subdural hemorrhage, some level of primary brain injury, and the eye damage that was present in Adriel’s case.

[561] Dr. Ramsay testified that if the mechanism of injury, whatever it was, caused the subdural hemorrhage and a primary brain injury at the same time, the child would be immediately and obviously unwell. There would not be a lucid interval. He based this conclusion on the medical literature, on his own experience and on police reports of caregivers’ reports. There is a small amount of medical literature that suggests that lucid intervals may occur but this literature is not accepted by forensic pathologists.

[562] If shaking were involved, [and Dr. Ramsay again noted that Adriel’s single big subdural hematoma is not the classical presentation when there has been shaking] the child would be immediately unconscious.

[563] Dr. Ramsay testified that it has been his experience that in triad cases and when shaking is a serious consideration, the child also suffers bruises to the arm, which could be grasp marks, or perhaps fractures of the ribs from grasping the thorax. Dr. Taylor testified that it is not known with any certainty what or how much force is required to cause injury from shaking. He stated, “We don’t know what forces are involved, although we always imagine an infant being shaken with great violence, but we have no recorded event or videotape of the violent shaking and then the pathology of the result of that violent shaking. So we’re very much in the area of there’s a number of possibilities, each of them has strengths and weaknesses, and each of them has their supporters and detractors.”

[564] In summary, Dr. Ramsay testified that the subdural hemorrhage was caused by trauma. The mechanisms could be shaking or blunt force trauma, or both. Blunt force trauma could be an object to the head or the head to an object. Recognizing that an argument could be made for or against shaking, and that an argument could be made for or against impact, Dr. Ramsay testified that it was not possible to provide odds of one type of mechanism having occurred versus the other. From his point of view, the fatal injury was related to trauma but its cause is unproven. Dr. Ramsay was then asked:

Q. And if we added in the piece that there was a significantly long lucid period where the baby was maybe a bit fussy and wanted to be moved, as I understand what you’re saying, whatever the pros and cons are, if we add in that observation, that seems to eliminate shaking, is that fair?

A. That’s correct.

[565] In re-examination, Dr. Ramsay agreed that clinicians, such as neurosurgeons, would have more experience regarding the symptoms that a baby might exhibit. He stated that in terms of symptoms, he was “at the edge of his expertise”. He was then asked if the symptoms that accompany a primary brain injury depend on the extent of that primary brain injury. Dr. Ramsay stated that it would seem logical that babies who have lesser injuries would have lesser symptoms. He testified that he did not have the answer to this question, but that the medical literature strongly supports the position that shaking, whether fatal or not, produces immediate unconsciousness. He referred in this regard to two papers published within the last two years.

[566] Dr. Ramsay was asked if he was aware of situations where an unconscious infant regained consciousness. He could not recall whether the author of the paper described the degree of so-called recovery. Dr. Ramsay agreed that when relying on the observations of a layperson, the reliability of their observations will depend on their background and experience, as well as how much attention they paid to the baby.

ISSUES

[567] The first issue to be determined is whether the Crown has established beyond a reasonable doubt that Mr. Munoz-Hernandez caused Adriel’s fatal brain injury.

[568] As stated earlier, the principles in W.(D.) apply in this case. If I believe Mr. Munoz-Hernandez’s evidence that he did not cause Adriel’s fatal brain injury, I must find him not guilty. Even if I do not believe Mr. Munoz-Hernandez’s evidence, if it leaves me with a reasonable doubt, I must acquit him. Finally, even if I reject Mr. Munoz-Hernandez’s evidence, I must determine whether, on the basis of the evidence that I do accept, the Crown has proved that the accused caused the fatal injuries beyond a reasonable doubt.

[569] If the Crown has established that Mr. Munoz-Hernandez caused the injuries, I must then determine whether the Crown has met its burden with respect to the mens rea for second degree murder: Has the Crown established beyond a reasonable doubt that Mr. Munoz-Hernandez meant to cause harm that he knew was likely to cause Adriel’s death and was reckless whether death ensued or not?

ANALYSIS AND FINDINGS

[570] In assessing credibility and making findings of fact in this case, I have considered the evidence as a whole.

[571] In assessing the reliability and credibility of Ms. DaSilva’s evidence, I take into account the fact that she was only 19 years old at the time of these events and has a limited education. Ms. DaSilva did not finish high school. She appeared to be somewhat unsophisticated and naive. As Crown counsel put it, she does not have a razor sharp mind. Ms. DaSilva was described by Ashley and David as happy and easy-going. She was certainly not an organized person or a forward thinker; for example, she testified that when she was pregnant, she and Adriel’s father never spoke of what sort of access he would have to the child and how all that would work. They were content to delay such discussions until after the baby was born.

[572] No matter who was responsible for this tragedy, there can be no question that Ms. DaSilva experienced significant trauma as a result of Adriel’s death. The nine weeks that he was in the hospital were extremely stressful and involved the painful and difficult decision to withdraw life support. Ms. DaSilva lived at the hospital throughout that period. It is reasonable to assume that the stress and trauma of that time has significantly affected her memory and her ability to recall accurately the timing and many of the details of events leading up to and including September 11 and 12. No doubt, some of those details appeared to her to be insignificant by comparison with the death of her son, and are now a bit of a blur. That there are gaps in her memory, such as the content of various conversations, or how long she was at the police station following her first interview, is hardly surprising, given the circumstances. Ms. DaSilva had been told, prior to going to the station, that Adriel may have only a few hours to live.

[573] Crown counsel submits that Ms. DaSilva, because of her lack of sophistication, was unable to articulate the reasons for the choices she made on September 11, such as why she did not return to see Adriel when she was within walking distance of the apartment for much of the day. I agree that Ms. DaSilva’s lack of sophistication may have played a role in her inability to fully explain some of her actions that day. She was, however, quite articulate when telling the “Clara” story to the police, and provided a very detailed description of Clara. It is reasonable to infer that Ms. DaSilva probably based many of those details on the appearance of someone whom she actually knew.

[574] Ms. DaSilva was under oath at the time that she told the Clara story, and had been warned that it was a criminal offence to obstruct justice by making a false statement to police during an investigation. When asked at the end of the interview whether there was anything she wished to change, Ms. DaSilva stated, “Nothing whatsoever.” She did, of course, later ask to be re-interviewed by the police, at which time she told the truth as to who was babysitting Adriel.

[575] There were instances, in addition to the Clara story, when Ms. DaSilva was untruthful; for example, her testimony that after Adriel’s birth on March 22, 2010, she returned to school and completed the 2010 school year while living with her grandparents.

[576] Ms. DaSilva testified that she was in Texas during the month of December 2009, and hence not in school during that period. When she returned home, she moved in with her grandparents and continued taking her Grade 10 and 11 courses during January 2010. She did not attend school during February and March. However, she testified that she went back to school one week after Adriel’s birth and attended classes until the end of June. Her grandmother babysat Adriel while she was at school. She intended to return to school in September 2010 and had secured a spot in daycare for Adriel, starting on September 13. She testified that she moved in with Mr. Munoz-Hernandez and David when Adriel was about four months old, which would have been around July 22, because living with the accused was a priority in her mind. She denied that her grandmother kicked her out of the house.

[577] Ms. DaSilva’s testimony that she did not move out of her grandparents’ house until the end of July is inconsistent with other parts of her evidence: she testified that on May 22, 2010, when she and Mr. Munoz-Hernandez were arrested on the theft charge, she and Adriel were already living at David’s place. I also note that as of July 20, David was in the hospital as a result of his car accident. It is clear from Ms. DaSilva’s testimony, as well as that of David and Mr. Munoz-Hernandez, that the car accident had not as yet occurred when she moved into David’s apartment.

[578] According to Mr. Munoz-Hernandez and David, whose timeline is probably more accurate, Ms. DaSilva moved in with them in early April, when Adriel was only a couple of weeks or less than one-month-old. Ms. DaSilva was not going to school. The move came about when Ms. DaSilva called Mr. Munoz-Hernandez and told him that her grandparents had kicked her out and she had no place to go. Mr. Munoz-Hernandez asked David if Ms. DaSilva could stay with them. According to Mr. Munoz-Hernandez, he and Ms. DaSilva were already involved in a sexual relationship at that time. David sympathized with her situation and agreed that she could stay until his wife and son arrived from Colombia.

[579] Ms. DaSilva’s testimony about living with her grandparents and attending school from March to the end of June may reflect how she would have liked events to unfold after Adriel’s birth – that is, being able to continue with her education while having her son cared for by her grandmother. However, it was not the truth. The harsh reality was that her grandfather, as a result of suffering a brain injury, had some mental health issues that made him very difficult to get along with. The stresses and strains of having a newborn in the house may also have taken a toll on the grandparents. In any event, Ms. DaSilva had to leave her grandparents’ house when Adriel was only a few weeks old. She was not going to school at the time and did not return to school during the 2009/10 school year.

[580] Crown counsel submits that it is difficult for Ms. DaSilva, in light of Adriel’s death, to admit to herself or anyone else that her family members were less than thrilled with his arrival. That may be, but the fact remains that Ms. DaSilva was under oath when she testified that she completed her school year.

[581] Common sense dictates that Ms. DaSilva’s evidence must be examined very carefully and with great caution.

No evidence of prior physical abuse of Adriel by Ms. DaSilva or Mr. Munoz- Hernandez

[582] None of the witnesses who observed Ms. DaSilva and Mr. Munoz-Hernandez interacting with Adriel saw either of them behave aggressively towards him or physically abuse him.

[583] Ashley Martins saw Adriel on a number of occasions prior to September 10, 2010. She saw him at Ms. DaSilva’s grandmother’s house when he was one-and-a-half-weeks old, and during three or four other visits to that house. Ms. DaSilva and Adriel stayed at Ashley’s home in Strathroy for a week when he was a month old. Ashley saw him during a weekend visit when he was between two and three-months-old. She also saw him on August 21, 2010, when she came to Toronto and stayed overnight at David’s apartment.

[584] Ashley changed Adriel’s diaper on a number of occasions. She never saw any bruises on him. She described him as a happy and easy-going baby, and Ms. DaSilva as an affectionate and loving mother. Ms. DaSilva played with Adriel a lot and was always kissing him. Ashley described her as “a natural” in terms of her role as a mother.

[585] Jhon Molina saw Adriel about ten times prior to September 11, 2010. Adriel appeared to be a normal healthy baby. Jhon had never seen any bruises on him. Ms. DaSilva seemed to be a good mother. Mr. Munoz-Hernandez was also good with Adriel and attentive to his needs. Jhon never saw him get angry or upset with Adriel when he was crying. Instead, he would try to settle him down. Mr. Munoz-Hernandez bought Adriel clothes, shoes, and hats.

[586] Arlinton, who was from Calgary and had been visiting his friend, Jefferson Pinieros, for a week or two, saw Ms. DaSilva a few times at the Pinieros apartment. She appeared to be a caring mother and Adriel appeared to be a healthy baby. Arlinton saw Ms. DaSilva change Adriel’s diaper on one occasion. He did not see any marks or bruises on him.

[587] Edgar Albarrecin only saw Adriel three or four times. He never saw any bruises on him. On one occasion, when he told Ms. DaSilva that there was a hair in the baby’s bottle and that she should clean it, Ms. DaSilva took his advice and washed the bottle. Mr. Albarrecin testified that Mr. Munoz-Hernandez appeared to have feelings for Adriel and bought gifts for him.

[588] Ms. DaSilva, in describing Mr. Munoz-Hernandez’s relationship with Adriel, adopted as true what she told the police during her second interview. During that interview, Ms. DaSilva acknowledged the falsity of the “Clara” story and stated that Mr. Munoz-Hernandez was babysitting Adriel while she was at the wedding.

[589] Ms. DaSilva, had she been so inclined, could have painted a picture for the police that would cast suspicion away from herself and onto Mr. Munoz-Hernandez as the person responsible for Adriel’s injuries. For example, she could have told them that he was a violent person, or impatient or easily frustrated when dealing with Adriel. However, Ms. DaSilva described Mr. Munoz-Hernandez to the police as very loving and caring towards Adriel.

[590] Ms. DaSilva told the police that the relationship between Adriel and Mr. Munoz-Hernandez was “really good.” Adriel loved Mr. Munoz-Hernandez. The accused attended to his needs when she was in the shower, and would change Adriel’s bib if it was dirty. If Adriel was crying while in her lap, Mr. Munoz-Hernandez would take him, hold him, settle him down, and kiss him. He would always hug Adriel. He would also say, “This is my son. I love him.”

[591] Ms. DaSilva also adopted as true her testimony at the preliminary hearing, where she stated that Mr. Munoz-Hernandez never showed any anger or frustration towards Adriel when Adriel cried, even when he cried in the middle of the night and woke them up. Ms. DaSilva never saw Mr. Munoz-Hernandez raise his voice or yell or threaten Adriel in any way.

[592] Ms. DaSilva testified that she never asked Mr. Munoz-Hernandez to feed Adriel or change his diaper, as she was content to do these caregiving tasks herself. Prior to September 11, Mr. Munoz-Hernandez had babysat Adriel for about four hours on one occasion when she and David went out. Adriel was asleep when she left. He was fine when she returned.

[593] David testified that Mr. Munoz-Hernandez loved Adriel. David initially denied but ultimately agreed with the suggestion that Mr. Munoz-Hernandez treated Adriel as if he were his own son. He played with him and bought him clothes and formula. He would babysit Adriel for short periods of time, such as 20 minutes, when Ms. DaSilva went to a store or the bank. Mr. Munoz-Hernandez never expressed any reluctance to care for Adriel in those situations.

[594] David testified that Ms. DaSilva liked to sleep in and would let Adriel cry when he woke up in the morning. Mr. Munoz-Hernandez would sometimes comfort Adriel until Ms. DaSilva got up and prepared his bottle.

[595] Mr. Munoz-Hernandez testified that when he first saw Adriel, who was only a few days old at the time, he immediately felt a connection with him. However, Mr. Munoz-Hernandez would go no further than to say that he “liked” Adriel. He stated that he did not feel he had a responsibility to care for him as he was not his father. However, he helped out financially and bought clothes for him. In cross-examination, Mr. Munoz-Hernandez agreed that people who saw him interact with Adriel would probably conclude that he loved him. He also admitted in cross-examination that he had a “kind of love” for Adriel but it was not that strong as he was not his son.

[596] In my view, Mr. Munoz-Hernandez was not forthright in describing his feelings for Adriel and attempted to minimize his affection for him.

[597] Mr. Munoz-Hernandez denied that he intended to give Adriel his last name and testified that this was his brother’s idea. David initially testified to the same effect. However, David admitted testifying at the preliminary hearing that Mr. Munoz-Hernandez had, in fact, wanted to give Adriel his last name. David attempted to explain this inconsistency: he confirmed that Mr. Munoz-Hernandez wanted to give Adriel his last name but testified that he later changed his mind.

[598] I find that Mr. Munoz-Hernandez did, in fact, want to give Adriel his last name. His denial that this was so is not credible.

[599] In terms of Mr. Munoz-Hernandez’s description of Ms. DaSilva’s interaction with Adriel, he testified that he never saw Ms. DaSilva harm Adriel and, up until September 11, had never seen any bruises or marks on him, other than when Adriel fell out of bed on two separate occasions: once at Ms. DaSilva’s grandmother’s house and once at her father’s house, just prior to the move to 15 Martha Eaton Way. Ms. DaSilva denied that Adriel ever fell out of bed. I did not find either of Mr. Munoz-Hernandez’s accounts of these falls to be credible.

[600] Mr. Munoz-Hernandez did not recall Adriel’s alleged fall from a bed at Ms. DaSilva’s grandmother’s house until his second day of cross-examination. He could not recall when this fall occurred; he could not recall where the bump was on Adriel’s head. He testified that when he asked Ms. DaSilva about it, she told him that Adriel had fallen out of bed at her grandmother’s place. Since Adriel was only a few weeks old when Ms. DaSilva moved out of her grandparents’ house, the fall would have had to have occurred when he was physically unable to roll himself out of bed. The court was left with the distinct impression that Mr. Munoz-Hernandez was making up his evidence about this fall while he was on the witness stand.

[601] Mr. Munoz-Hernandez’s evidence regarding Adriel’s fall from a bed at Ms. DaSilva’s father’s house was equally problematic.

[602] This alleged fall occurred one morning when Mr. Munoz-Hernandez and Ms. DaSilva were sleeping at her father’s home. Mr. Munoz-Hernandez was not sure whether it was September 7 or 8. He and Ms. DaSilva heard a “thump.” Ms. DaSilva ran into the room where Adriel was sleeping and picked him up from the hardwood floor. He was screaming. There was a small bump on his head. He settled down and seemed to be fine. Mr. Munoz-Hernandez chided Ms. DaSilva for putting him in the bed. Thereafter, she put pillows beside him to prevent him from falling.

[603] Initially, Mr. Munoz-Hernandez stated that he had no idea where the bump was located on Adriel’s head. When pressed on this point during cross-examination, he stated that it was “probably on the side or something. I can’t remember.” He did not know which side. He thought perhaps it was on his forehead near the temple. By the time that they moved into 15 Martha Eaton Way on September 9, it did not look like a bump. It was a little red mark, which was not “too visible.” He could not recall how long the redness lasted. It was not noticeable by September 11.

[604] Mr. Munoz-Hernandez testified that the bump was visible when he, Ms. DaSilva, Izilda, and Adriel attended at David’s apartment on September 9 to pick up some of his things, and that David commented on it. However, David made no mention during his testimony of seeing any mark or bump on Adriel’s forehead or anywhere else on his head that day, even though he was with Adriel for about one-and-a-half hours. In addition, David specifically recalled that Mr. Munoz-Hernandez was not even present at the apartment on September 9.

[605] At another point in his testimony, when Mr. Munoz-Hernandez was asked whether Adriel still had the bump on his head on September 9 and 10, he stated, “I think so.” Realizing that Ashley has seen Adriel on September 10 and had testified that she had not noticed any marks on him, Mr. Munoz-Hernandez immediately volunteered in his evidence that Ashley would not have seen the bump because “she did not even look at him.” She came “in a rush” and left. The closest she came to Adriel was a metre.

[606] I accept Ashley’s evidence that she went up to Adriel in his bouncy chair, bent over him, and said “Hi baby.” When Adriel smiled at her, she stood back up. Ashley did not see any marks on Adriel.

[607] Adriel was examined by medical personnel at the hospital. All the bruises and marks to his body were noted. There is no evidence that anyone saw any bump, bruise, red mark, or injury to his head.

[608] Ms. DaSilva categorically denied that Adriel fell out of bed. Her evidence in this regard is supported by the fact that neither Ashley, David, nor anybody else saw any mark to his head.

[609] I find that Mr. Munoz-Hernandez’s testimony with respect to Adriel’s fall from the bed at Ms. DaSilva’s father’s house was fabricated and designed to cast Ms. DaSilva in a negative light. It is also consistent with an attempt on his part to explain his comment to Jhon on September 11, after Jhon noticed the bruises on Adriel’s side, that Adriel had fallen from a bed a few days earlier. Mr. Munoz-Hernandez made no mention to Jhon of the fall in the shower, which had allegedly occurred only minutes before Jhon’s visit.

[610] No one other than Mr. Munoz-Hernandez ever saw any injuries on Adriel. Apart from the two imaginary bumps, Mr. Munoz-Hernandez acknowledged that he never saw any evidence of injuries to Adriel in the five-and-a-half months leading up to September 11.

[611] David, who saw Adriel on a daily basis, with the exception of the month he was in the hospital, gave no evidence of having observed any marks or bruises on him.

[612] David’s characterization of the accused and Ms. DaSilva’s relationship was problematic in a number of respects, particularly in those areas that were inconsistent with his evidence at the preliminary hearing. He was, at times, obviously biased and trying to help out his brother at this trial. I do accept, however, some of his testimony regarding Ms. DaSilva’s interaction with Adriel. David was fond of both Adriel and Ms. DaSilva. David testified that Ms. DaSilva never got upset when he gave her advice in terms of caring for Adriel: “No, she never got upset. She was a pretty happy person. I never saw her getting upset. She was kind of a happy person who doesn’t worry much about things.” When Ms. DaSilva moved out, he told her that he wanted to maintain contact with Adriel. Ms. DaSilva agreed in her testimony that David had said he would always be there for her if she ever needed help with Adriel.

[613] David observed that Ms. DaSilva could be somewhat neglectful of Adriel’s needs. For example, he sometimes took over giving Adriel his bottle when Ms. DaSilva was holding him in an awkward position while she talked on the telephone or was on the computer. On some occasions, when he told Ms. DaSilva that Adriel needed a diaper change, she would tell him “just to leave him there” and that she would change him later. On these occasions, David would change Adriel’s diaper himself. There was no evidence that David ever saw any bruising to Adriel’s abdomen or genital area.

[614] Ms. DaSilva did not recall the “barbeque incident.” However, I accept David’s evidence that Ms. DaSilva arrived at the barbeque without adequate supplies for Adriel, and that David ended up going out to purchase formula and diapers for him. David was also concerned that Ms. DaSilva, while at the barbeque, left Adriel in his car seat in a room with people whom she did not know and who were drinking. One night, she left the apartment without telling David she was going out. When Adriel woke up and started to cry in the middle of the night, David attended to him and brought him into his bedroom. When Ms. DaSilva returned home, she did not check on Adriel or even realize he was not in his playpen. When David complained to her the next morning, she stated that she had not expected Adriel to wake up during the night.

[615] David testified that Ms. DaSilva met him at various nightclubs on seven or eight occasions, presumably over the approximately five-month period that he knew her. According to his evidence, however, Ms. DaSilva had always made arrangements for a baby sitter.

[616] Mr. Munoz-Hernandez testified that on three or four occasions, Ms. DaSilva came home late and told him that she intended to pick up Adriel from the babysitter’s place the following morning. According to Mr. Munoz-Hernandez, he insisted on each occasion that they pick him up immediately, even though it was very late. In considering the veracity of these accounts, I note that Mr. Munoz-Hernandez appeared particularly eager to criticize Ms. DaSilva, not only with respect to how she cared for Adriel but also for her lack of education and ambition. In any event, even if Mr. Munoz-Hernandez’s accounts are true, he never suggested in his evidence that Ms. DaSilva physically abused Adriel, caused him any harm, or was impatient with him.

[617] There is no question that Ms. DaSilva displayed indifference towards Adriel and exercised extremely bad judgment when she left him with Mr. Munoz-Hernandez for 18 hours on September 11 in order to attend a wedding. She had never left Adriel for that long a period before – not with Mr. Munoz-Hernandez or anyone else. There were many opportunities during that morning and early afternoon when she could have gone home to check on Adriel or could have had him with her.

[618] The position of the defence is that Ms. DaSilva purposely avoided having anyone see Adriel that day because of bruises on his body. The position of the Crown is that there were no bruises: Ms. DaSilva’s actions were purely the result of bad judgment on her part because of her youth and immaturity. She was a 19-year-old mother who wanted a break for the better part of a day from her parenting responsibilities. She wanted to have some fun with her cousin as they prepared for the wedding, and to dance, drink, and socialize with family and friends. The Crown submits that Ms. DaSilva cannot admit this to herself or anyone else because to do so would be to accept the fact that Adriel is dead because she was selfish and made the fateful decision to leave him in the accused’s care.

[619] Ms. DaSilva, of course, was not the only one to demonstrate indifference towards Adriel on September 11. Mr. Munoz-Hernandez demonstrated extreme indifference when he left the baby unattended in the apartment on three separate occasions. Mr. Munoz-Hernandez was gone for almost half-an-hour in the morning while he had a manicure and bought some curtains for the apartment. In the afternoon, he left Adriel alone for two hours when he went to the mall to check out cell phone plans and buy some food. He left Adriel again for another two hours – from 5:00 p.m. until almost 7:00 p.m. – when he went with Jhon and Arlinton to Emmett Avenue to buy marijuana.

Relationship between Mr. Munoz-Hernandez and Ms. DaSilva

[620] Ms. DaSilva was very positive in describing her relationship with Mr. Munoz-Hernandez. She told the police that she and Mr. Munoz-Hernandez had a “really really good relationship” and that they were very close. She was comfortable with him. They talked about everything. When asked if there were any problems between them, Ms. DaSilva stated, “No, never. He was a really nice person, like really nice.” Ms. DaSilva adopted her statements to the police as true.

[621] Ms. DaSilva testified that Mr. Munoz-Hernandez told her that he wanted to make a life with her, although he never actually told her that he loved her. David testified that Mr. Munoz-Hernandez referred to Ms. DaSilva as his girlfriend, and that Ms. DaSilva referred to herself in a similar way.

[622] Ms. DaSilva testified that for some time prior to the dispute between David’s wife and Mr. Munoz-Hernandez, she and Mr. Munoz-Hernandez had been thinking of moving out of the apartment so that they could move on with their lives, although they had not made a final decision in this regard. Although Ms. DaSilva testified that she told Mr. Munoz-Hernandez that Adriel was her first priority – she loved Adriel and cared for the accused – it is clear that from her perspective, she and Mr. Munoz-Hernandez moved into the apartment on Martha Eaton Way as a couple. The apartment was not just a place for Mr. Munoz-Hernandez to stay for a few days until he found someplace else to live.

[623] Mr. Munoz-Hernandez denied an intention to live with Ms. DaSilva. He acknowledged that he co-signed the lease and that he did so before he was told to leave David's apartment. However, he insisted that he only signed the lease because Ms. DaSilva could not find anyone else to sign it. Mr. Munoz-Hernandez contributed money towards the rent and had a set of keys. His clothes, shoes and various personal documents (absent his immigration papers) were at the apartment. On September 11, he bought window coverings for the place. Jhon referred to the apartment as “Ronny’s apartment.”

[624] David’s evidence, like that of Mr. Munoz-Hernandez, was to the effect that Mr. Munoz-Hernandez did not take his relationship with Ms. DaSilva seriously or was non-committal about it. Mr. Munoz-Hernandez and Ms. DaSilva may have slept together but they were not a couple: they were just “friends with benefits”, which was the same expression used by Mr. Munoz-Hernandez to describe the relationship. David testified that although he told Ms. DaSilva that she would have to move out as soon as his wife arrived, he never gave the same ultimatum to Mr. Munoz-Hernandez. It was always understood that Mr. Munoz-Hernandez would be able to stay. That only changed when Mr. Munoz-Hernandez had an argument with his wife. Even then, David thought Mr. Munoz-Hernandez might be able to return if he could “soften” things with his wife. According to David, Mr. Munoz-Hernandez’s move to the apartment at 15 Martha Eaton Way was only for a few days or until he figured out what to do.

[625] There were a number of discrepancies between David’s evidence at trial and his testimony at the preliminary hearing.

[626] David agreed that at the preliminary hearing, he testified that he had always told both Mr. Munoz-Hernandez and Ms. DaSilva that they would have to move when his wife and son arrived. He also testified at the preliminary hearing: “Ronny was going to rent an apartment. He had paid for the apartment and he was just waiting for them to change the carpet or paint or something like that.” At the preliminary hearing, David referred to Ms. DaSilva as “Ronny’s girlfriend,” and testified that Mr. Munoz-Hernandez always introduced Ms. DaSilva to others as his girlfriend. At the preliminary hearing, David described Mr. Munoz-Hernandez and Ms. DaSilva as a “couple” and testified that they “were going to live together.”

[627] Having considered the inconsistencies between his evidence at trial and his testimony at the preliminary hearing, I did not find David’s characterization of the relationship between Mr. Munoz-Hernandez and Ms. DaSilva to be credible. I do not accept his evidence that Mr. Munoz-Hernandez only intended to live with Ms. DaSilva “in the short term,” or for a few days until he figured out what to do.

[628] I am satisfied that Mr. Munoz-Hernandez and Ms. DaSilva took up residence in the apartment as a couple, and that the move represented a more serious commitment on the part of Mr. Munoz-Hernandez to Adriel and Ms. DaSilva than he was prepared to admit.

[629] As he did during his testimony with respect to Adriel, Mr. Munoz-Hernandez minimized any feelings he might have had for Ms. DaSilva, and was critical of her lack of education and her failure to get a job. However, if, as Mr. Munoz-Hernandez testified, he had absolutely no interest in a relationship with Ms. DaSilva, it does not make any sense that he would have contemplated giving her son his last name. His expressed interest in doing so, which Mr. Munoz-Hernandez denied but which I have found to be a fact, indicates that he was prepared to take on a fatherly role vis-à-vis Adriel. This, in turn, suggests a longer-term commitment in terms of his living with Ms. DaSilva, and certainly for more than a few days, as he would have the Court believe. It lends support to Ms. DaSilva’s evidence that Mr. Munoz-Hernandez spoke of their raising Adriel together and that he was concerned that Adriel might later return to his father.

Evidence relating to the issue of whether Adriel had bruises on his body when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care on the morning of September 11

[630] As stated earlier, the position of the Crown is that Adriel had no bruises on him when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care on the morning of September 11, and that Mr. Munoz-Hernandez inflicted all of Adriel’s injuries sometime between 8:24 p.m., when Arlinton left the apartment, and 11:07 p.m., when Jhon arrived unannounced.

[631] Crown counsel characterized Ms. DaSilva’s statements in her text messages to Natasha that she was “at church” and that a cousin was babysitting Adriel, as “white lies.” The Crown submits that Ms. DaSilva’s statements to relatives at the wedding reception that Adriel was with her cousin, Cassandra, fall into the same category and are of little consequence in terms of Ms. DaSilva’s credibility. When Ms. DaSilva’s evidence is considered as a whole, and in the context of all of the other evidence, her assertion that she never inflicted bruises on Adriel at any time is credible and reliable. The Crown submits that Ms. DaSilva had a plan, although not a detailed plan, for the care of Adriel on September 11: Natasha was to babysit him. That plan only changed when Mr. Munoz-Hernandez offered to look after Adriel.

[632] The position of the defence is that Adriel had bruising to his body when Ms. DaSilva left him in the accused’s care and that Ms. DaSilva caused those bruises. Not only did Mr. Munoz-Hernandez testify that he saw the bruises, but Ms. DaSilva’s behaviour that day is consistent with her not wanting any relatives to have access to Adriel such that they might discover the bruising. Ms. DaSilva not only caused the bruises that Mr. Munoz-Hernandez alleges he saw, but also inflicted the fatal head injury to Adriel following her return to the apartment at 3:00 a.m. and while she was under the influence of alcohol. The position of the defence is that Ms. DaSilva never had a plan to have Natasha babysit Adriel.

[633] As already stated, there is no evidence that Ms. DaSilva had ever abused Adriel in the past. No one ever observed any marks on him. There is no evidence that Ms. DaSilva had a history of trying to prevent others from seeing Adriel, or that she kept them away when she was changing his diaper. When Ashley changed Adriel’s diaper just three weeks prior to September 11, she saw no marks on him. Arlinton, who saw Ms. DaSilva change Adriel’s diaper sometime during the week-and-a-half leading up to September 11, saw no bruises. Mr. Munoz-Hernandez acknowledged that Ms. DaSilva never attempted to keep Adriel away from him or prevent him from seeing Adriel naked. Mr. Munoz-Hernandez took Adriel into the shower with him at least once a month.

[634] Counsel for Mr. Munoz-Hernandez submits that Ms. DaSilva’s failure to take Adriel to his four-month medical checkup supports the proposition that she was abusing the baby. In my view, Ms. DaSilva’s failure in this regard indicates irresponsibility on her part but it does not warrant the inference that she deliberately avoided the appointment because Adriel had bruises or that she was abusing him on a regular or frequent basis, as alleged by the defence. There is no evidence to support that allegation. All the witnesses who saw Adriel described him as a healthy happy baby; no one ever saw any injuries on him.

[635] David saw Adriel on a daily basis and sometimes changed his diaper. On September 9, David spent one-and-a-half hours with Adriel while Ms. DaSilva packed up her and Mr. Munoz-Hernandez’s belongings. It would be unlikely that she would have allowed David to have such access to Adriel if he had bruises, as David had no hesitation in changing Adriel’s diaper. It is reasonable in these circumstances to infer that Adriel had no bruises when David saw him on September 9.

[636] Thus, if Adriel had bruises on the morning of September 11, as described by Mr. Munoz-Hernandez, Ms. DaSilva would have had to have inflicted them sometime after the visit to David’s place.

[637] It is highly unlikely that Ms. DaSilva assaulted Adriel and inflicted the bruises after Ashley’s visit to the apartment on September 10. Ashley left around 8:00 p.m. that night. The evidence indicates that Ms. DaSilva and Mr. Munoz-Hernandez were home together after Ashley’s departure until about 8:30 a.m. on September 11, when Ms. DaSilva left to go to her grandmother’s house. Mr. Munoz-Hernandez made no mention in his evidence about having heard or seen anything unusual or suspicious in their small apartment that would suggest that Ms. DaSilva assaulted Adriel after Ashley’s visit; for example, he made no mention of Adriel crying or being difficult to settle, or Ms. DaSilva losing her temper or becoming frustrated with him.

[638] The position of the defence is that although Ms. DaSilva caused Adriel’s fatal head injury sometime after she returned from the wedding, she caused all of his bruises during an earlier beating administered sometime prior to the morning of September 11. The defence submits that the majority of those bruises did not develop until sometime later. In other words, the position of the defence is that most of the bruises observed by the medical staff upon Adriel’s admission to hospital at noon on September 12 were caused by Ms. DaSilva prior to her leaving for the wedding, but that they only developed or became visible sometime after 11:00 p.m. on September 11, when Mr. Munoz-Hernandez changed Adriel’s diaper for the last time. If this were, in fact, the case, and Ms. DaSilva, following Ashley’s visit, administered a beating that ultimately resulted in such extensive bruising, it is reasonable to infer that Adriel would have cried out in pain and that Mr. Munoz-Hernandez would have heard him. Mr. Munoz-Hernandez did not testify that he heard any unusual crying by Adriel that night, which suggests that no such assault took place following Ashley’s visit.

[639] In addressing the issue of whether Adriel had sustained bruises prior to Ashley’s visit, Crown counsel noted that Ashley saw no marks or bruises on him. However, Adriel was wearing a short-sleeved shirt, pyjama bottoms, and socks at the time. As a result, Ashley could only see his face, neck, and forearms. She was not in a position to observe whether or not there were any bruises in the area of his diaper.

[640] I note, however, that Ashley did not observe anything unusual about Adriel’s behaviour during her visit. He appeared to be healthy and happy. He was awake and in his bouncy chair. He had his hands in his mouth and was sucking on them. He had just finished eating. When Ashley bent over him, he smiled at her.

[641] During her visit, Ashley suggested that Ms. DaSilva and Adriel spend the night at her grandmother’s house. Defence counsel submits that Ms. DaSilva turned down this invitation because she feared Ashley would discover the bruises. This risk was real since Ashley, when she was with Adriel, tended to take the initiative in terms of caring for him, including changing his diaper. I note, however, that Ms. DaSilva, after turning down the invitation, invited Ashley to stay the night at her place.

[642] Defence counsel submits that Ms. DaSilva would have known that there was no realistic possibility of Ashley accepting the invitation, as there was no place for her to sleep. However, assuming that Adriel had bruises, Ms. DaSilva would still be taking a chance, even if somewhat remote, that Ashley might agree to stay. If Adriel had bruises, there would be no reason for her to take any chance that they might be discovered.

[643] Ms. DaSilva testified that she had arranged to have Natasha babysit Adriel while she was at the wedding, although no specific time had been mentioned. Ms. DaSilva was to call Natasha on Saturday morning using her grandmother’s or Ashley’s telephone. She would take Adriel to Natasha’s apartment by bus, pick him up after the wedding, which would be around 2:00 a.m., and take the bus home. She testified that on the morning of September 11, when Mr. Munoz-Hernandez learned of this plan, he offered to babysit, stating that he did not want Adriel to be on a bus that late at night. Although Mr. Munoz-Hernandez had only babysat on one previous occasion for a four-hour period, Ms. DaSilva thought it would be safe to leave Adriel with him because he had suggested it.

[644] Mr. Munoz-Hernandez’s version of events was that Ms. DaSilva told him on the morning of September 11 that she could not take Adriel to the wedding and could not leave him with anyone because he had bruises. She feared that if her mother or sister found out, they would report her to the Children’s Aid Society. He testified that he refused to babysit and told Ms. DaSilva that he was going out.

[645] According to Mr. Munoz-Hernandez, he never asked Ms. DaSilva a single question about the alleged bruises. I found his testimony in this regard to be problematic. If, as he testified, Ms. DaSilva told him that Adriel had bruises, it does not make any sense that he would not have queried her about them. He did not ask her when or how the bruises had happened, where they were on Adriel’s body, or how severe they were. Mr. Munoz-Hernandez explained his lack of curiosity and concern on the basis that Ms. DaSilva may have been lying to him in order to get him to babysit. Yet he made no effort to confirm whether Adriel had, in fact, been injured. He did not ask to see the bruises or examine Adriel himself. Even after Ms. DaSilva left, Mr. Munoz-Hernandez did not bother to check to see if Adriel had any marks. It was not until he changed his diaper at noon that he says he observed the alleged bruises.

[646] Mr. Munoz-Hernandez testified that he was reluctant to talk to Ms. DaSilva about the bruises because of an earlier argument with her regarding the abuse of her younger sister by her stepfather. Ms. DaSilva had refused to take his advice that she should report the matter to the police and told him that it was her family and none of his business. Ms. DaSilva was never questioned about this alleged argument during her testimony. In any event, I fail to see why such a dispute would have deterred Mr. Munoz-Hernandez from at least asking how or to what extent Adriel – the baby who, even on his own evidence, he “kind of loved” – had been injured. According to his testimony, he had not shied away in the past from criticizing Ms. DaSilva regarding her care of Adriel, and had indicated concern for his welfare; for example, he had insisted on several occasions that Adriel not be left overnight with a babysitter. In describing the alleged fall from the bed at Ms. DaSilva’s father’s house, Mr. Munoz-Hernandez portrayed himself as concerned about potential injury to Adriel. He testified that he had warned her not to put Adriel in the bed and criticized her when he fell out of it: “Jessica, I told you last night not to do it and do you see what happened?” Far from arguing with him, Ms. DaSilva “just stayed quiet.”

[647] Mr. Munoz-Hernandez testified that when Ms. DaSilva returned to the apartment with breakfast for him, she continued to ask him to look after Adriel. He continued to say “no.” She showed him how to make the baby formula. She also told him that if he had any questions about Adriel’s care, he could call her sister, Izilda, for advice. She wrote down her sister’s phone number, as well as the numbers for Natasha and Mark. As she was leaving, she said she would be back, but she never returned. Despite being tricked into and saddled with the responsibility of looking after Adriel for the day, Mr. Munoz-Hernandez never complained about Ms. DaSilva’s behaviour to Jhon or Arlinton. I will deal in more detail with his failure to complain later on in these reasons.

[648] If Adriel did, in fact, have bruises, and Ms. DaSilva was fearful that her sister would find out about them and report her to the Children’s Aid Society, it does not make any sense that she would leave her sister’s phone number with Mr. Munoz-Hernandez and tell him to call her in the event he had any questions regarding Adriel’s care. If Adriel had bruises, it would have made more sense for Ms. DaSilva to leave Ashley’s telephone number with Mr. Munoz-Hernandez, since Ms. DaSilva and Ashley planned to be together throughout the day. That way, Ms. DaSilva could have maintained some control over the situation, dealt directly with any problem that arose regarding Adriel, and avoided the risk of her sister becoming involved or having any contact with the baby. Instructing Mr. Munoz-Hernandez to contact her sister is inconsistent with Ms. DaSilva having any concerns about her sister having access to Adriel. It suggests that Adriel did not have any bruises at that time.

[649] Ms. DaSilva’s attempts to have Natasha babysit Adriel also suggest that Adriel did not have any bruises that morning. It indicates that Ms. DaSilva was not trying to keep Adriel away from everyone, as alleged by the defence.

[650] Ms. DaSilva left the apartment without Adriel, and walked to her grandmother’s house, where Ashley was staying. She arrived there about 8:30 a.m. Ashley testified that when she asked her where Adriel was, Ms. DaSilva told her he was with Mr. Munoz-Hernandez but that Natasha would be babysitting him while they were at the wedding. Ashley’s testimony is some confirmation that Ms. DaSilva had a plan, albeit a loosely-knit one – no specific time had been set – to have Natasha babysit Adriel that day.

[651] The text messages sent by Ms. DaSilva to Natasha’s boyfriend are further confirmation of that plan. At 9:27 a.m., Ms. DaSilva texted Mark, stating that she had phoned him from her grandmother’s house. She asked him to answer as she needed to speak to Natasha because “I have a wedding today and the church is at 12.” At 9:44 a.m., Ms. DaSilva again asked Mark, via a text message, to tell Natasha to please text her “as soon as she can.” As Crown counsel pointed out, Ms. DaSilva did not ask Mark to ask Natasha about her availability to babysit or whether she was prepared to babysit that day. Her text messages were directed towards the issue of when or what time she required Natasha’s services.

[652] As it turned out, Natasha did not reply until 12:01 p.m.: “Jessica I just woke up, where r u.” Ms. DaSilva lied at that point, telling her that she was “at church lol” and that she got her cousin to babysit. She also went on, however, to thank Natasha, presumably for having agreed to babysit: “thank you so much though.” Natasha’s response was “Aw forreal :(”, which suggests she was disappointed that she would not be babysitting Adriel after all.

[653] Ms. DaSilva’s recollection was that she advised Natasha in the morning, as opposed to the afternoon, that she no longer required her to babysit. Ms. DaSilva was clearly wrong in terms of the timing of those text messages.

[654] Defence counsel submits that the fact that Ms. DaSilva was trying to reach Natasha in the morning indicates that Mr. Munoz-Hernandez had not offered to babysit Adriel, as Ms. DaSilva alleges. Crown counsel submits that the fact that Ms. DaSilva was still trying to reach Natasha after Mr. Munoz-Hernandez offered to babysit speaks to some hesitation on her part to leave Adriel with him. Ms. DaSilva testified that she had Adriel ready and had packed his bag when Mr. Munoz-Hernandez made the offer. She had not expected it. The Crown submits that there was most likely further conversation between Ms. DaSilva and Mr. Munoz-Hernandez during the half hour when she returned to the apartment before she finally decided to leave Adriel with him.

[655] Ms. DaSilva currently cannot recall any conversation she had with Mr. Munoz-Hernandez when she returned to the apartment. She only recalled that she played with Adriel for a while and then left. However, it is clear that there must have been some discussion regarding Mr. Munoz-Hernandez looking after Adriel during that period of time. In cross-examination, she was reminded that she wrote out the note with the names and phone numbers of her sister, Natasha, and Mark. She also instructed Mr. Munoz-Hernandez on how to prepare the baby formula. These actions, which Ms. DaSilva has forgotten, are consistent with her testimony that she was content to leave Adriel in Mr. Munoz-Hernandez’s care that day. There would be no reason for her to try to deceive the court by stating that she could not recall doing these things. It appears that Ms. DaSilva genuinely has very little recollection of that period of time in the apartment.

[656] Ashley’s testimony lends some support to Ms. DaSilva’s evidence that Mr. Munoz-Hernandez offered to look after Adriel that day. Ashley testified that when Ms. DaSilva returned to Tim Horton’s, Ashley asked her where Adriel was. Ms. DaSilva told her that Mr. Munoz-Hernandez wanted to stay with him a little longer. After further conversation at Tim Horton’s, during which Ashley questioned Ms. DaSilva as to why Adriel would not be staying with Natasha, Ashley understood that Mr. Munoz-Hernandez wanted to stay with Adriel and that he would, in fact, be looking after him for the entire day.

[657] Defence counsel submits that Ms. DaSilva did not invite Ashley to accompany her up to the apartment because she did not want Ashley to have any access to Adriel. However, this was not a situation in which Ashley expressed an interest in accompanying her and Ms. DaSilva turned her down. Ashley testified that she did not ask nor did she want to go up to the apartment. Her first meeting with Mr. Munoz-Hernandez the night before had been awkward because he was in the middle of dying his hair and had dye all over his forehead. Ashley testified that “he wasn’t very friendly with me at the time. There was no conversation between him and I …”

[658] For the better part of the day, and before leaving for the wedding reception, which started at 4:30 p.m., Ms. DaSilva was within walking distance of her apartment. In addition, Ashley had access to a vehicle. Ms. DaSilva testified that notwithstanding her close proximity to Adriel, she never thought of going home, picking him up, and taking him to her grandparent’s or uncle’s house. She admitted that she exercised bad judgment by not checking in on him, but insisted that this did not mean that she did not care for Adriel or that she had harmed him in any way.

[659] Ms. DaSilva’s testimony regarding her text message to Mark at 9:27 a.m. that she had to be at the church by noon, and her text message to Natasha at 12:03 p.m. that she was “at church lol” when, in fact, she was at her grandmother’s house, is problematic. Ms. DaSilva and Ashley did not attend the church ceremony and only attended the reception, which was at 4:30 p.m.

[660] Ms. DaSilva testified that she did not recall whether she was at the church when she sent the 12:03 p.m. text message, but testified that if she sent a text to that effect, she must have been at church (when she clearly was not). In her examination-in-chief, she recalled attending the church ceremony with other family members. In cross-examination, she expressed some uncertainty in this regard.

[661] It may be that Ms. DaSilva felt she could pressure Natasha to respond more quickly to her message by referring to the noon deadline in her text message to Mark. Assuming that her text to Natasha about being “at church lol” was not said in jest, but was an intentional lie, it is clearly a matter that negatively affects her credibility. However, I am satisfied that the lies to Natasha about being at church, and that a cousin was taking care of Adriel, were not motivated by a desire to keep Adriel away from Natasha. If Ms. DaSilva had wanted to keep Adriel away from Natasha for fear that she would discover bruises on his body, she would not have been trying to reach her that morning for the purpose of having her babysit him. She would also not have left both Natasha’s and Mark’s phone numbers, as well as her sister’s number, with Mr. Munoz-Hernandez, in case he had any questions regarding Adriel’s care.

[662] Although Ms. DaSilva indicated some uncertainty as to whether or not she went to the church ceremony, she agreed that if she had gone, she could have taken Adriel with her. Her main reason for not wanting to take him to the wedding reception was her concern about exposing him to loud music. However, that was not a factor in terms of her attendance at the church.

[663] It is clear from Ashley’s evidence that they did not go to the church and that there was never any plan to go to the church, which was apparently in the same neighbourhood as Ms. DaSilva’s grandmother’s house. Ashley was not even sure if there was a “church part” to the wedding, and testified that she usually just goes to the “party.” Thus, the fact that Ms. DaSilva did not attend the church did not represent any sudden change in plan, with Ms. DaSilva making up excuses to Ashley or other relatives as to why she could not attend the church with Adriel.

[664] In the circumstances, the fact that Ms. DaSilva did not go to the church does not imply that she was trying to hide Adriel from her relatives. There was never any plan to go to the church in the first place. In any event, whether or not Ms. DaSilva went to church, the fact remains that she was in close proximity to her apartment and Adriel until about 4:30 p.m., and could have checked on him, had she chosen to do so.

[665] The wedding reception was some distance from Ms. DaSilva’s home and went on into the early hours of the morning. When asked by various relatives at the reception as to where Adriel was, Ms. DaSilva told them that he was with her cousin, Cassandra. Ms. DaSilva testified that she did not recall saying this, but if she did, it was because her family would have been upset to learn that she had left Adriel with someone who was not his father. In addition, some of her relatives did not know that she was living with Mr. Munoz-Hernandez. Ms. DaSilva agreed that at the preliminary hearing, she testified that there was no reason she would not have told people she had left Adriel with Mr. Munoz-Hernandez. She agreed with the suggestion that she had no reason to lie about Mr. Munoz-Hernandez babysitting Adriel.

[666] Defence counsel submits that Ms. DaSilva lied to her relatives at the wedding reception in order to hide or keep Adriel away from them. However, the circumstances were such that this was unlikely to have been her motive: even if Ms. DaSilva had told her relatives that Adriel was at home with the accused, it seems unlikely that they would have left the reception in order to visit him, especially given the time of night and the fact that Adriel would most likely have been asleep.

[667] Ashley, who overheard Ms. DaSilva telling people that Adriel was with her cousin, did not attempt to correct her. Ashley explained that she knew that members of her family would certainly not be “a hundred percent happy with Adriel staying with a man.”

[668] In the end, I do not place too much weight on the fact that Ms. DaSilva misled her relatives at the reception as to who was looking after Adriel that evening. I note that Ashley testified that Ms. DaSilva advised the aunt who drove them home that Adriel was at the apartment, and that the aunt would have realized or known that Mr. Munoz-Hernandez was babysitting him.

Whether Jhon’s and Arlinton’s observations of Adriel earlier that day support the Crown’s position that Adriel had no bruises when Ms. DaSilva left him in the accused’s care

[669] Crown counsel relies on the evidence of Jhon and Arlinton in support of her position that Adriel had no bruises when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care on Saturday morning.

[670] Jhon testified that he did not notice any bruises on Adriel when he saw him at 4:48 p.m. Similarly, Arlinton testified that he did not see any bruises on Adriel during his visit to the apartment, which took place between 6:51 p.m. and 8:24 p.m. However, when Jhon walked into the apartment at 11:07 p.m., he noticed some “little bruises” on Adriel’s side. The Crown asks the court to infer that those bruises were fresh and inflicted by Mr. Munoz-Hernandez sometime after Arlinton left at 8:24 p.m. and before Jhon arrived at 11:07 p.m.

[671] I am not satisfied that the evidence of either Jhon or Arlinton regarding their observations of Adriel is sufficiently clear or detailed to draw such an inference.

Jhon’s observations

[672] Jhon testified that when he entered the apartment at 4:48 p.m., Adriel was in a stroller and wearing only a diaper. Jhon did not see any marks on him. This was the first time that Jhon realized Mr. Munoz-Hernandez was looking after Adriel that day. Jhon and Mr. Munoz-Hernandez left the apartment 14 minutes later.

[673] Jhon’s current recollection was that Adriel was wearing only a diaper that afternoon. He agreed, however, that during his police interview on September 15, he described Adriel as “dressed.” At one point during cross-examination, when asked if Adriel was in an outfit, Jhon stated that he was “not sure.” If Adriel were “dressed” or wearing an outfit, Jhon would not have been able to say one way or the other whether he had bruises on his side at that time.

[674] There are obvious concerns about the reliability of Jhon’s evidence that Adriel was wearing only a diaper when he first saw him that day. However, even if Adriel had been wearing only a diaper, it is not clear whether Jhon would have been in a position to observe whether there were bruises on his side. There is no indication as to how close John got to Adriel, or whether he could see the sides of his body while he was in the stroller. He did not pick Adriel up and take him out of the stroller, as he did during his later visit that night. The exact location of the bruises that he noticed during his evening visit is not clear, other than the fact that they were on the side. Jhon could not recall which side. There is no indication in his evidence as to whether the bruises were close or near to the area normally covered by a diaper.

[675] In all of the circumstances, it cannot be concluded with any certainty that during his afternoon visit, Jhon would have been in a position to observe whether or not Adriel had bruising on his side at that time.

Arlinton’s observations

[676] Arlinton recalled that he was in Mr. Munoz-Hernandez’s apartment for a “few hours” that day, but mistakenly thought that this visit took place after their trip to the Lawrence Mall, as opposed to Emmett Avenue. The video surveillance shows that Arlinton and Mr. Munoz-Hernandez entered the apartment together at 6:51 p.m., and that Arlinton left at 8:24 p.m.

[677] Arlinton first realized that Adriel was in the apartment when he saw Mr. Munoz-Hernandez preparing a bottle. Arlinton went into the bedroom and saw Adriel lying in the playpen. He was wearing a diaper and was not covered up. Arlinton could not recall if he was awake. Adriel did not make any sounds and was not moving. He did not appear to be sick. Arlinton did not see any bruises on his body.

[678] It is not clear from Arlinton’s evidence as to how close he was to the playpen when he made his observations. He did not describe what position Adriel was in or what parts of his body he could see – for example, his front, his back, his left or his right side. Arlinton’s evidence is not sufficiently detailed to conclude that he would have been in a position to observe bruises on Adriel’s side, if those bruises existed at that time.

Mr. Munoz-Hernandez’s failure to complain to Jhon and Arlinton about being left to babysit Adriel

[679] According to Mr. Munoz-Hernandez, he was more or less tricked by Ms. DaSilva into looking after Adriel that day: when Ms. DaSilva left after bringing him breakfast, she stated that she was going to speak to her cousin but that she would be back. She never returned.

[680] If Mr. Munoz-Hernandez had, in fact, been tricked into caring for Adriel, rather than offering to look after him, as attested to by Ms. DaSilva, one would expect that he would have complained or at least commented to his friends about her behaviour. However, Mr. Munoz-Hernandez made no mention to either Jhon or Arlinton that Ms. DaSilva had basically abandoned Adriel and saddled him with his care for the day, even though he had made it abundantly clear to her that he was not prepared to babysit.

[681] Arlinton testified that when he and Jhon attended at the apartment around 2:24 p.m., prior to going to the mall, he asked Mr. Munoz-Hernandez where Ms. DaSilva was. Mr. Munoz-Hernandez told him that she was at a wedding party. He did not appear to be frustrated or upset by her absence. He made no mention to Jhon or Arlinton that Adriel was in the apartment. Arlinton assumed that Adriel was with Ms. DaSilva.

[682] Mr. Munoz-Hernandez agreed that he made no mention to Arlinton that day that he had unwillingly ended up looking after Adriel. He explained that he did not know Arlinton that well and “maybe I didn’t talk to him because I didn’t think that he will like – it wasn’t his – he wouldn’t care. It wasn’t his thing.”

[683] Mr. Munoz-Hernandez testified that although Jhon was a good and trusted friend, he did not complain to him about Ms. DaSilva’s behaviour in walking out and leaving him with Adriel because he did not know if she would be coming back. That might possibly explain Mr. Munoz-Hernandez’s silence regarding her alleged deceit when he saw Jhon in the morning, or possibly even when they went to the mall together around 2:30 p.m. However, by the time they left for Emmett Avenue around 5:00 p.m., at which point Jhon was aware that Adriel was in the apartment, Ms. DaSilva had been gone for about seven hours. She had still not returned at the time of Jhon’s visit around 11:00 p.m. By that point, she had been gone the entire day. Yet Mr. Munoz-Hernandez still said nothing to Jhon about Ms. DaSilva having left Adriel with him over his objections. Mr. Munoz-Hernandez’s silence in this regard is inconsistent with his having been duped into babysitting, as he alleges. On the other hand, if, as Ms. DaSilva testified, Mr. Munoz-Hernandez had offered to look after Adriel for the day, he would have had no reason to complain to Jhon or Arlinton about her behaviour.

Mr. Munoz-Hernandez’s testimony re: the bruises he observed on Adriel

[684] Mr. Munoz-Hernandez testified that he changed Adriel’s diaper for the first time that day sometime after he returned from his manicure at 11:45 a.m., and before he left for the mall at 2:30 p.m. It was probably around noon.

[685] Mr. Munoz-Hernandez testified that he observed two small light red marks on the lower right side of Adriel’s abdomen. The marks were close together. They looked like a pinch mark. He also observed that both sides of Adriel’s buttocks were reddish in colour. The redness looked like a rash and was in the area of his diaper. It did not rise above the diaper. Adriel’s penis was also red. However, it was not purple or dark and swollen, which is how it appeared when Dr. Cory examined Adriel at 5:30 p.m. on September 12, and how it also appears in the photographs taken on September 13. Prior to September 11, Mr. Munoz-Hernandez had never seen any bruises on this part of Adriel’s body, although he had had a rash that extended past his diaper on an earlier occasion.

[686] Mr. Munoz-Hernandez testified that when he changed Adriel’s diaper about 11 hours later, around 11:00 p.m., Adriel’s buttocks, penis and abdomen looked about the same as they had at noon. However, the two marks on the right side of his abdomen were a little more purple or red.

[687] Mr. Munoz-Hernandez testified that he was concerned about what he thought was a pinch mark, and wanted to talk to Ms. DaSilva’s father about it as he had heard he was a responsible, hard-working and Christian person.

[688] Mr. Munoz-Hernandez’s evidence that he intended to discuss the bruising with Ms. DaSilva’s father was problematic. He had never met her father, had only seen him once, and had never spoken to him. He was aware that he was out of the country at the time, and had no idea when he was coming back.

[689] When asked if he thought of calling David for advice, Mr. Munoz-Hernandez stated that he was “going to talk to him afterwards and tell him about it.” I note, however, that Mr. Munoz-Hernandez made no mention during his three telephone conversations with David on September 13 that he had observed pinch marks on Adriel’s abdomen or that Ms. DaSilva was abusing Adriel. In fact, Mr. Munoz-Hernandez gave David no details that day, other than to tell him that he needed money to travel and that he had a “problem.” During the second or third call, he told David that Adriel was in the hospital, but did not say why or what had happened.

[690] I also note that Mr. Munoz-Hernandez, in explaining why he did not take Jhon up on his suggestion that he leave Adriel with Jhon’s grandmother before they left for Emmett, testified that he did not know her that well, and that he thought she was weird or strange. He made no mention of turning down the offer because of a fear that the grandmother might discover the alleged pinch mark on Adriel’s side – an omission that suggests that Adriel had no such mark at that time.

The “spicy sauce” comments

[691] The position of the Crown is that Mr. Munoz-Hernandez demonstrated animus towards Adriel when he told Arlinton that he used to put spicy sauce on Adriel’s lips, put him in the refrigerator, and put him in a cold bath because he was a cry baby. Arlinton testified that when he asked him why he would do such a thing, Mr. Munoz-Hernandez just laughed. Crown counsel submits that although Arlinton cannot currently recall where or when Mr. Munoz-Hernandez made these comments on September 11, 2010, they were so bizarre that it is highly unlikely that he made them up. The Crown submits that Arlinton had no motive to fabricate this evidence.

[692] Counsel for Mr. Munoz-Hernandez submits that Arlinton’s evidence regarding these comments is not reliable, given his different versions of where and when they were spoken. Mr. Munoz-Hernandez denied making the comments and suggested that Arlinton may have had a motive to fabricate because of a romantic interest in Ms. DaSilva.

[693] Arlinton first provided this information anonymously when, on September 14, 2010, he spoke to a police officer in the hallway at 15 Martha Eaton Way. He told the officer that Mr. Munoz-Hernandez had made the comments in the apartment sometime after they returned from the mall. It was during this visit that Arlinton learned for the first time that Adriel was in the apartment. Arlinton told the officer that he heard the baby crying as he entered. Mr. Munoz-Hernandez started warming some milk for him. At some point, Mr. Munoz-Hernandez told him that he used to put Adriel inside the refrigerator and in cold water. He also said that he put hot sauce on the baby’s lips. Arlinton testified that he was being truthful when he spoke to the officer.

[694] The video surveillance indicates that Arlinton was mistaken about the timing of this visit to the accused’s apartment when he spoke to the officer on September 14. After the trip to the mall, Arlinton and Mr. Munoz-Hernandez returned to their own respective apartments. It was not until after their trip to Emmett Avenue that they attended at Mr. Munoz-Hernandez’s apartment. The video footage shows them entering at 6:51 p.m. Arlinton left at 8:24 p.m. That was his last contact with Mr. Munoz-Hernandez. He never saw the accused again.

[695] I do not place much weight on Arlinton’s error that he visited the apartment after the mall as opposed to after the trip to Emmett.

[696] Arlinton testified that Mr. Munoz-Hernandez’s “weird” comments freaked him out so much that he did not hang out or spend any more time with Mr. Munoz-Hernandez after he uttered them.

[697] During a police interview on September 20, 2010, Arlinton again stated that Mr. Munoz-Hernandez made the “spicy sauce” comments during his visit to the accused’s apartment.

[698] At the preliminary hearing in August 2012, which was almost two years after the event, Arlinton testified that he was certain that Mr. Munoz-Hernandez made the comments while they were walking home from Emmett Avenue. However, during his police interview back on September 16, 2010, Arlinton stated that he and Mr. Munoz-Hernandez barely spoke to one another during that walk, as they were both listening to music. There was no conversation about anything specific during that walk. It is unlikely that the comments were made during the walk home from Emmett since Arlinton, at that point, was still unaware that Adriel was in the apartment and that Mr. Munoz-Hernandez was babysitting him.

[699] Arlinton cannot currently recall when Mr. Munoz-Hernandez made the comments – whether they were made in the apartment or while they were walking together. He explained that these events happened a long time ago. However, he insisted that “what I said is true. That thing that’s there [the comments] is true, but I don’t remember if it was during that walk or if it was outside the apartment or inside the apartment.”

[700] Mr. Munoz-Hernandez denied making the comments. He agreed that he and Arlinton, whom he had met through their mutual friend, Jhon, had not argued or had any disagreements such that Arlinton would be motivated to fabricate the comments. He testified, however, that a few days earlier, when he was in the swimming pool, he saw Arlinton touching Ms. DaSilva’s hand as they were talking on the balcony.

[701] I did not find Mr. Munoz-Hernandez’s testimony regarding the “hand-touching” incident to be credible. Mr. Munoz-Hernandez never mentioned this alleged incident to Arlinton. Neither Arlinton nor Ms. DaSilva was questioned about it during their testimony. I am satisfied that Arlinton had no motive to fabricate the comments and that he held no grudges against Mr. Munoz-Hernandez. Arlinton, who continues to reside in Calgary, had only been in Toronto for 1 ½ or 2 weeks prior to giving his statement to the police on September 14, 2010.

[702] Although Arlinton was inconsistent in his statements with respect to when Mr. Munoz-Hernandez made the “spicy sauce” comments (his recollection three days after the event was that they were made during his visit to the apartment, whereas two years later he recalled that they were made on the walk home from Emmett), and currently cannot recall whether they were made in or outside the apartment, he has remained consistent as to what the accused said to him. I agree with Crown counsel that the comments are sufficiently bizarre that it seems highly unlikely that Arlinton made them up. Had he wanted to implicate Mr. Munoz-Hernandez, it would have been easier to simply allege that the accused had admitted hurting Adriel.

[703] Taking into account the consistency in Arlinton’s evidence as to what Mr. Munoz-Hernandez told him, the bizarre nature of the comments, and Arlinton’s lack of motive to implicate the accused, I am satisfied that Mr. Munoz-Hernandez did, in fact, make the comments as alleged by Arlinton.

[704] There is no suggestion in the evidence that Mr. Munoz-Hernandez ever put spicy sauce on Adriel’s lips, put him in the refrigerator, or put him in cold water when he was crying. However, the comments indicate animus by Mr. Munoz-Hernandez towards Adriel that day, or a level of intolerance with respect to his crying.

The fall while getting out of the shower and the “jail” comment to Jhon

[705] Mr. Munoz-Hernandez could not recall what he did during the period between 8:24 p.m., when Arlinton left, and 11:07 p.m., when Jhon arrived. He admitted that he was bored. He testified that he probably played with Adriel. He also testified that he took Adriel with him into the shower.

[706] Mr. Munoz-Hernandez initially testified that he took Adriel into the shower because the baby had not had a shower that day. He also testified, however, that he could not recall at the time whether Ms. DaSilva had bathed Adriel before she left that morning. He acknowledged that Ms. DaSilva had already dressed Adriel when she woke him up. Thus, he would not have known one way or the other whether she had bathed him, unless she told him.

[707] Mr. Munoz-Hernandez testified that he needed a shower and that he likes to shower at night. He had taken Adriel with him into the shower on prior occasions – about once a month. However, he had never done so without Ms. DaSilva being available to take Adriel and dry him off after he was finished.

[708] Mr. Munoz-Hernandez testified that as he stepped out of the bathtub, he slipped and fell, dropping Adriel in the process. Adriel landed on his back. The fall was fast and hard. Adriel screamed. Mr. Munoz-Hernandez picked him up and comforted him. Adriel settled down and seemed to be normal after that.

[709] During his examination-in-chief, Mr. Munoz-Hernandez made no mention of Adriel having sustained any injuries as a result of this fall. In cross-examination, he stated that he had a small red mark on the back of his head, about midway up, but it was not a bump.

[710] According to Mr. Munoz-Hernandez, Jhon arrived about five or ten minutes after the fall. During that interval, Mr. Munoz-Hernandez somehow managed to calm Adriel down, dry him off, diaper him, and put him in the stroller. He also dressed himself and started preparing the warm bottles of water.

[711] Jhon testified that when he walked in at 11:07 p.m., Mr. Munoz-Hernandez was filling the bottles with hot water and putting them beside Adriel. When Jhon asked him why he was doing this, Mr. Munoz-Hernandez told him that he thought Adriel was feeling sick and was a little cold. He made no mention about the fall in the shower, which had allegedly occurred only minutes earlier. He also made no mention of the fall in the shower when Jhon commented on the bruises on Adriel’s side. Instead, he told Jhon that Adriel had fallen out of bed a few days earlier – a fall that I have found never occurred.

[712] Mr. Munoz-Hernandez testified that he did not tell Jhon about the fall in the shower because he did not think it was important, even though he says he was initially really worried about it. He testified that Adriel appeared to be fine, although he told Jhon that Adriel was feeling sick.

[713] It makes no sense that Mr. Munoz-Hernandez would not have told Jhon about the fall in the shower, if it had actually happened, after Jhon commented on Adriel’s bruises.

[714] It also makes no sense that Mr. Munoz-Hernandez would not have told someone at the hospital about the fall or, at the very least, raised it with Ms. DaSilva on the way to the hospital. He claimed to have mentioned it to her after she arrived home at 3:00 a.m., when she was under the influence of alcohol. Ms. DaSilva denied that he ever told her about the fall. Even if he had, it would have made sense for him to raise it again with her in the morning as a possible cause for Adriel’s condition.

[715] Mr. Munoz-Hernandez never said anything to anyone about the fall, not even to David, with whom he spoke three times on the telephone on September 13.

[716] Mr. Munoz-Hernandez testified that he did not link Adriel’s condition to the fall because he had seemed normal afterwards. He also stated, “I’m not a doctor.” However, one need not have a medical degree to at least query the possibility that a fall, which Mr. Munoz-Hernandez described as “fast and hard,” and which resulted in Adriel sustaining an injury to the back of his head, might possibly be linked to his non-responsive condition the next morning. It is a matter of common sense.

[717] Although Adriel was examined by many medical personnel at the hospital, there is no evidence of any red mark on the back of his head. Dr. Taylor exposed most of Adriel’s skull when he performed the bilateral craniectomy. He did not see any bruises, lacerations, or hematomas to the scalp.

[718] I did not find Mr. Munoz-Hernandez’s testimony that he slipped and dropped Adriel while stepping out of the shower to be credible. There was no such fall.

Adriel’s alleged cold

[719] Mr. Munoz-Hernandez could not recall when he first noticed that Adriel had a runny nose and was sneezing. It could have been that morning or in the afternoon. He testified that it was probably after he returned from his manicure. At another point in his evidence, he stated that it was probably after he got out of the shower.

[720] Mr. Munoz-Hernandez suggested that Adriel might have caught a cold while staying at Ms. DaSilva’s father’s house because the house was a little cool. Adriel, however, had not been in that environment for three days.

[721] No one else who saw Adriel that day indicated that he had a runny nose or was sneezing – not Ms. DaSilva, Jhon or Arlinton. Jhon said nothing about Adriel having a runny nose when he saw him that evening, even though he touched his nose. The doctors who examined Adriel the following day saw no indication that he was suffering from a cold.

[722] Mr. Munoz-Hernandez’s testimony that Adriel had a runny nose and was sneezing is not credible. Adriel did not have a cold, although Mr. Munoz-Hernandez was obviously aware that something was wrong with him and that he was not his normal self. He appeared to be unwell. He told Jhon that he thought Adriel was feeling sick. Jhon described the accused as concerned about Adriel.

Jhon’s observations that Adriel was fussing and uncomfortable

[723] Jhon was in the apartment from 11:07 p.m. to 11:46 p.m., or for 39 minutes. It appears from his evidence that he spent most of that time on the balcony, smoking marijuana. However, he did make some observations of Adriel.

[724] Jhon testified that when he walked in, Adriel was in his stroller. He was not screaming but appeared to be uncomfortable: he was fussing and moving around, as though he was asking to be taken out of the stroller. Even after Jhon picked him up and placed him on the air mattress, Adriel continued to do the same thing: he was uncomfortable, and moving his arms and legs. Jhon described the sounds he was making as normal baby sounds. Jhon did not stay with Adriel but went out on the balcony to smoke.

[725] Mr. Munoz-Hernandez put Adriel into his pyjamas. According to the accused, he also prepared a bottle of formula, fed Adriel, left him on the mattress and joined Jhon on the balcony. Jhon testified that as far as he was aware, Mr. Munoz-Hernandez did not try to feed Adriel that night.

[726] Jhon testified that while they were smoking on the balcony, Mr. Munoz-Hernandez commented: “How fucked it will be like to be in a jail in a country like this by yourself without family.” In cross-examination, Jhon agreed that it was possible that he and Mr. Munoz-Hernandez were talking about their mutual friend, Walter Pinieros, who was in jail at the time. However, they were not talking specifically about jail. The comment “just came out.”

[727] Mr. Munoz-Hernandez did not acknowledge making this comment, but testified that if he did make it, he would have been referring to Walter’s situation and not to himself.

[728] I am satisfied that Mr. Munoz-Hernandez made this comment. Although Jhon acknowledged it was possible that they could have been talking about Walter, he had no clear recollection of doing so. They were certainly not talking about jail. The comment appears to have stood out in Jhon’s mind because it came out of the blue. I also note that the comment refers to a future event: “How fucked it will be like to be in a jail ...” Walter was already in jail. The comment is consistent with Mr. Munoz-Hernandez being worried about having done something for which he could be sent to jail. It is also consistent with Ms. DaSilva’s testimony that on the morning of September 12, Mr. Munoz-Hernandez told her that he was scared to go to jail.

[729] Jhon testified that as soon as he finished smoking on the balcony, he left the apartment. On his way out, he did not stop to watch or observe Adriel, who was still on the air mattress. As far as he could tell, Adriel did not appear to be “asking for help” or acting in an unusual way.

[730] There was no suggestion in Jhon’s evidence that Mr. Munoz-Hernandez was upset or disturbed by his unexpected arrival at the apartment that night. Mr. Munoz-Hernandez did not try to keep Jhon away from Adriel and, according to Jhon’s evidence, asked him to touch Adriel’s nose. Defence counsel submits that Mr. Munoz-Hernandez’s behaviour in this regard is inconsistent with his having assaulted and caused bruises to the baby. However, most if not all of the bruising to Adriel’s body that was observed at the hospital the next day was to his lower abdomen and would have been covered by his diaper. Jhon only observed the bruises on his side when he picked him up. When Jhon commented on the bruising, Mr. Munoz-Hernandez lied and told him that Adriel had fallen out of bed a few days earlier. When Jhon went out to the balcony, Mr. Munoz-Hernandez put Adriel into his pyjamas.

[731] Counsel for Mr. Munoz-Hernandez pointed out that when Jhon told him he was leaving, Mr. Munoz-Hernandez asked him to stay a little longer. This request is not necessarily inconsistent with Mr. Munoz-Hernandez having assaulted Adriel, who was, by that time, in his pyjamas. There was no risk that any bruises, if they existed at that time, would be exposed, as Jhon was unlikely to offer to change Adriel’s diaper.

[732] Although Adriel appeared to be feeling sick or unwell, which caused Mr. Munoz-Hernandez to prepare the warm water bottles, and was fussing and seemed to be uncomfortable, as observed by Jhon, he was not displaying obvious signs of trauma at that time.

[733] Counsel for Mr. Munoz-Hernandez pointed out that the apartment door was unlocked when Jhon walked in. However, as noted by Crown counsel, the assault on Adriel that resulted in his fatal brain injury was more likely to have been a spontaneous rather than a planned act. It is unlikely that Mr. Munoz-Hernandez, if he were the person responsible for the injuries, would have taken the precaution of locking the door beforehand.

Medical evidence: symptoms following a brain injury

[734] Despite their impressive credentials, none of the doctors who testified could say for certain what mechanism caused the subdural hemorrhage and brain swelling. Some were of the view that shaking was more likely to explain the head injuries than blunt force trauma; others were of the view that impact was the more likely scenario. They all accepted that there was a third possibility; that is, a combination of shaking and impact. The medical evidence was also not definitive in terms of how much of Adriel’s brain injury was primary and how much of it was secondary or caused by the subdural hemorrhage.

[735] For ease of reference, I have set out below a summary of the evidence of Doctors Cory, Shroff, Taylor, Kepron, and Ramsay regarding the range of symptoms a baby might exhibit following a brain injury, as well as evidence relating to the timing of that injury.

Dr. Cory’s evidence

[736] Dr. Cory testified that the symptoms demonstrated by an infant immediately following a brain injury will vary, depending on the severity of the injury, what parts of the brain are involved, and how widespread the damage is. On the less severe end of the spectrum, a baby would be fussy, irritable, a bit sleepy, not feed well and not behave in their usual manner. At the more severe end of the spectrum, a baby could be unconscious, have seizures, stop breathing or even die. Dr. Cory’s expectation was that the infant would not appear normal at first but the severity of the symptoms would become more obvious over time, as the brain swelling progresses during the ensuing minutes and hours. The swelling or edema typically starts on a microscopic level and then progresses or worsens over time. It was Dr. Cory’s understanding that cerebral edema cannot be accurately dated. How long it progresses and worsens depends on a number of factors.

[737] Dr. Cory testified that fussiness can be a potential sign of head injury. It can also simply indicate that the baby wants a nap, or his diaper is wet or he is just being fussy. Dr. Cory noted that there is a subjective component in terms of assessing whether the sounds that a baby is making are “normal.”

[738] Dr. Cory would not have expected Adriel to be 100 % neurologically normal immediately after sustaining his brain injury. However, whether or not a baby is perceived to be behaving abnormally depends on the level of the caregiver’s involvement. It would be possible for someone caring for a baby who has suffered a serious head injury to perceive the baby as unwell due to a mild illness.

[739] Based on the CT scans, which were taken on September 12, Dr. Cory could not say how much of Adriel’s brain injury was primary and how much was secondary. If Adriel had an injury event that made his brain look immediately as it does on the CT scan, one would expect that he had severe and noticeable symptoms.

Dr. Shroff’s evidence

[740] Dr. Shroff testified that if a subdural hemorrhage is large enough and causes a lot of compression, there can be a secondary effect on the brain, causing brain swelling. However, in Adriel’s case, the extent of the swelling was much more than one would expect for the size of the subdural hemorrhage. Thus, he was of the view that the edema and swelling in Adriel’s brain was also a form of primary injury.

[741] Dr. Shroff deferred to Dr. Taylor’s evidence in terms of symptoms Adriel may have demonstrated in the minutes or hours after suffering the brain injury.

Dr. Taylor’s evidence

[742] Dr. Taylor was of the view that the subdural hemorrhage and the primary brain injury happened simultaneously from the same event. The subdural then built up over time. Based on his experience, as opposed to any scientific study, he was of the view that the bleeding would have gone on for minutes, and certainly less than an hour. However, he cautioned: “These are all conjectures, because we don’t ever bonk a kid in the head and then put them in the CT scanner and watch it over time, but we think that the bleeding probably happens over minutes.”

[743] Dr. Taylor also testified that the bleeding could stop and start: “Occasionally what can happen is you have some bleeding into your subdural space and you get a subdural, your intracranial pressure goes up and it stops the bleeding, and then over time, your brain kind of adjusts and your pressure goes down and the bleeding can start again.” It is not known how common this phenomenon is.

[744] Dr. Taylor testified that Adriel’s diffuse brain injury would result in swelling over a period of time, which caused the midline shift. The diffuse brain injury would not have spread, but the damaged area would look different over time if examined under a microscope. In terms of the CT scan, Dr. Taylor testified that most of what appears on it with respect to the brain injury is what happened at the time of the event.

[745] Dr. Taylor testified that a child with these injuries would not necessarily become unconscious right away. However, the child would not be normal. Symptoms could range from dense coma to a baby who appears listless, lethargic, restless or sleepy. He could also appear to be generally unwell for an unknown reason. Evaluating babies is difficult because they cannot answer questions.

[746] Dr. Taylor testified that a laughing, happy, playing baby, or a baby that is responding to stimuli, is inconsistent with that baby having suffered a primary brain injury. It is unlikely that a baby who is making normal baby noises or normal responsive noises has suffered a primary brain injury.

[747] Dr. Taylor testified that the blood in the syringe that he drew up by inserting a needle through Adriel’s fontanel was fresh and appeared to be only a few hours old. He “guessed” that it was less than six to eight hours old, and most likely less than 12 hours old. He would be surprised if it were 15 hours old because blood should clot in that period of time. He stated that he was “guessing” because there is no scientific data in this area on which he could rely. Dr. Taylor went on to testify that the possible presence of cerebral spinal fluid in the 40 millilitres of blood could have tricked him into thinking that it was fresher than it actually was. In addition, the syringe was only able to bring up the liquid blood, as opposed to the clotted blood, from the subdural hemorrhage.

[748] Dr. Taylor testified that dating a subdural hemorrhage is not a precise science. He is able to tell if a clot is less than a day, more than a week, or more than a month old. Based on the fact that Adriel’s subdural hemorrhage was a mixture of liquid red blood and clotted blood, Dr. Taylor again “guessed” that it was probably somewhere between 8 and 12 hours old, but it could be 15 hours or up to a day old.

Dr. Kepron’s evidence

[749] Dr. Kepron was of the view that it is unlikely that the subdural hemorrhage, on its own, caused Adriel’s extensive brain injury. She also testified that it is unlikely that all the brain damage happened instantly at the time of the trauma.

[750] Dr. Kepron testified that symptoms could range from crying to immediate unconsciousness. In a head injury this severe, the baby would not appear normal, but what that means can vary. To an untrained observer, the baby could simply appear to be unwell. Not appearing normal would be different from a fussy baby who wants to be picked up. There could be inconsolable crying, vomiting or lethargy.

[751] Symptoms may evolve differently, depending on whether the cranial pressure increases slowly or suddenly. With a slow increase in pressure, an individual may appear normal or not profoundly ill. Only after a certain threshold is met do the symptoms begin to evolve. When the pressure increases rapidly, the symptoms appear sooner.

[752] In terms of dating a subdural hemorrhage, Dr. Kepron testified that this area of science is not precise enough to opine that the hemorrhage occurred five hours as opposed to 15 hours earlier.

Dr. Ramsay’s evidence

[753] Dr. Ramsay could not say how much damage to Adriel’s brain was as a result of a primary brain injury versus how much was the result of secondary swelling due to the subdural hemorrhage.

[754] Dr. Ramsay could not date the subdural hemorrhage as he only examined Adriel’s brain nine weeks after he suffered the injury. However, he testified that he would not be comfortable in saying that a subdural hemorrhage was 11 hours old versus 15 hours old. Clinical symptoms can be useful in trying to date it, but the interval between the impact and the first symptoms will depend on how fast the blood is accumulating. That rate can vary on a case by case basis. The fact that Adriel had a large subdural hemorrhage does not mean that he necessarily bled quickly. Dr. Ramsay agreed that he would defer to Dr. Taylor in terms of refining the timing of the subdural hemorrhage as Dr. Taylor actually observed the blood.

[755] Dr. Ramsay testified that it is possible that a child who sustained what ultimately became a large subdural hemorrhage could initially, after the event, simply appear to be unwell.

[756] Dr. Ramsay testified that it is possible that the subdural hemorrhage, on its own, caused all of the brain and eye injuries. He acknowledged that this is a very controversial conclusion: most pediatricians take the position that retinal hemorrhages and retinoschisis are not caused by brain swelling but by shaking or possibly an impact injury. In any event, if the subdural hemorrhage were the primary injury, he would expect that the impact that caused the hemorrhage would render the child unconscious for a brief period. The child would then regain consciousness, appear fine and have a lucid period, during which he would react normally to stimuli. However, after a period of time, as the subdural hemorrhage accumulated, the child’s conscious level would deteriorate. The child would become sleepy and then unconscious. Dr. Ramsay estimated that the period of time over which these things occurred could be anywhere from a few minutes, if there was a rapid bleed, to one or two hours, or even up to one or two days.

[757] Dr. Ramsay testified that if the force involved, whether it was from shaking or impact, produced subdural bleeding and immediate damage to the brain, the child would be immediately and obviously unwell. There would not be a lucid period. He based this conclusion on the medical literature, on his own experience, and on police reports of caregivers’ reports. There is a small amount of medical literature that suggests that lucid intervals may occur, but this literature is not accepted by forensic pathologists. He agreed that in terms of the symptoms that a baby is exhibiting, the reliability of the observations of a layperson or caregiver depends on that person’s background, experience, and how much attention that they are paying to the baby.

[758] Dr. Ramsay was of the view that if shaking were involved (Dr. Ramsay noted that Adriel’s single big subdural hemorrhage is not the classical presentation when there has been shaking but shaking is a possibility), the child would be immediately unconscious.

[759] In re-examination, Dr. Ramsay agreed that clinicians, such as Dr. Taylor and Dr. Cory, would have more experience regarding symptoms that a baby might exhibit and that he was at the edge of his expertise in this regard.

[760] When asked if the symptoms that accompany a primary brain injury depend on the extent of that primary brain injury, Dr. Ramsay stated that he did not have an answer to that question. He agreed that it would seem logical that babies who have lesser injuries would have less severe symptoms. However, he testified that the medical literature strongly supports the position that shaking, whether fatal or not, produces immediate unconsciousness. He referred to two papers published in Belgium in the last year or two that support this position. He also referred to another paper that described a lucid interval after a shaking injury, but stated that it is regarded as a weaker scientific publication.

The timing of Adriel’s injuries and his symptoms, in light of the medical evidence

[761] In terms of when Adriel could have sustained his head injuries, Dr. Taylor, Dr. Kepron, and Dr. Ramsay all agreed that dating a subdural hemorrhage is not a precise science. Dr. Taylor emphasized that all his estimates were “guesstimates” because there is no scientific data in this area. His guess that the 40 millilitres of blood in the syringe was less than six to eight hours old is not reliable because it may have contained cerebral spinal fluid, which would make it look fresher. In addition, the needle used to withdraw the blood only drew up liquid as opposed to the clotted blood from the hemorrhage. Dr. Taylor guessed that the subdural hemorrhage was between 8 and 12 hours old, but it could be 15 hours or up to a day old. These time estimates do not rule out Mr. Munoz-Hernandez as the perpetrator.

[762] In terms of symptoms, defence counsel submits that Jhon’s observation that Adriel was making normal baby sounds is inconsistent with his having suffered a brain injury at that time. In considering Jhon’s evidence in this regard, I bear in mind Dr. Cory’s testimony that there is a certain subjective component in assessing whether a baby’s sounds are “normal.” Dr. Cory also testified that whether a baby is perceived to be behaving abnormally depends on the level of the observer’s involvement. Dr. Ramsay agreed that the reliability of an individual’s observations depends on that person’s background, experience, and how much attention they are paying to the baby. Although Jhon had some familiarity with babies, he was only 18 years old at the time of this incident. He also spent only a limited time with Adriel on the evening in question. After placing Adriel on the air mattress and noting that he still appeared to be fussing and uncomfortable, Jhon went out to the balcony. He remained there for the rest of his visit, until he walked through the apartment on his way out.

[763] Doctors Cory and Taylor included, respectively, fussiness and restlessness, in the list of symptoms on the less severe end of the spectrum.

[764] Dr. Cory testified that a caregiver might perceive a baby who has sustained a brain injury as unwell due to a mild illness. Dr. Taylor’s and Dr. Kepron’s evidence was to a similar effect: they both testified that such a baby, following a brain injury, could appear to be generally unwell for an unknown reason. Dr. Ramsay testified that it is possible that a child who sustained what ultimately became a large subdural hemorrhage could initially, after the event, simply appear to be unwell.

[765] Dr. Ramsay’s evidence differed from that of the other expert witnesses in some respects. He testified that if the subdural hemorrhage were the primary injury that caused all the brain swelling and brain and eye injuries (which he acknowledged was a controversial conclusion), he would expect that the impact that caused the hemorrhage would render the child unconscious for a brief period. The child would then come to, appear to be fine, and have a lucid period. However, as the subdural hemorrhage accumulated, the child’s conscious level would deteriorate. The child would become sleepy and then unconscious. The time period over which these events occurred could be anywhere from a few minutes, if there was a rapid bleed, to one or two hours, or even up to one or two days.

[766] Dr. Ramsay testified that if the force, whether by shaking or impact, caused the subdural bleeding and immediate damage to the brain, the baby would be immediately and obviously unwell, with no lucid period. He also testified that if shaking were involved, the baby would be immediately unconscious. However, Dr. Ramsay agreed that clinicians, such as Dr. Taylor and Dr. Cory, would have more experience regarding symptoms that a baby might exhibit and that he was at the edge of his expertise in this regard.

[767] The evidence in the present case indicates that Adriel appeared to be unwell. Mr. Munoz-Hernandez was obviously aware that something was wrong with him: he told Jhon that Adriel was feeling sick, and was attempting to tend to him by placing bottles of warm water beside him.

[768] Based on the medical evidence, Adriel’s appearing to be unwell (as observed by Mr. Munoz-Hernandez), together with his fussiness and appearing to be uncomfortable (as observed by Jhon), are consistent with the early symptoms that a child who has suffered a serious head injury may experience.

Events after Jhon leaves at 11:46 p.m.

[769] According to Mr. Munoz-Hernandez, Adriel was fine when he put him to bed 30 or 40 minutes after Jhon left. He no longer appeared to be sick. He was not fussy. He was not sleepy, even though it was after midnight, which was a couple of hours past his usual bedtime. Mr. Munoz-Hernandez’s earlier concern that Adriel was sick, which had caused him to prepare the bottles of warm water, had apparently vanished.

[770] Mr. Munoz-Hernandez’s testimony with respect to Adriel’s remarkably quick recovery is not credible. Mr. Munoz-Hernandez was still clearly worried about Adriel, as demonstrated by the fact that he took the trouble to move the playpen into the living room and beside the air mattress.

[771] Mr. Munoz-Hernandez testified that he brought the playpen into the living room so that he could hear Adriel in case he started to cry or wanted something, even though Adriel usually slept through the night. Mr. Munoz-Hernandez acknowledged that when the playpen was in the bedroom, it was only three metres away from the air mattress. Given that short distance, there is no reason why Mr. Munoz-Hernandez would not have heard Adriel in the event that he woke up and started to cry. Mr. Munoz-Hernandez then provided a further reason for taking the trouble to move the playpen into the living room: he stated that he moved it so that he would have company and not feel so alone.

[772] Mr. Munoz-Hernandez’s professed concern about not hearing Adriel if he started to cry is not credible, particularly given the fact that he had left the baby alone in the apartment for four-and-a-half hours that day, and had not demonstrated any concern that he may have been crying while he was gone. When Arlinton asked him why he had left Adriel alone, Mr. Munoz-Hernandez faked a laugh and told him that he was a strong kid and that he could handle it. Mr. Munoz-Hernandez indicated a similar indifference towards Adriel when Jhon, prior to their trip to Emmett, asked him why he had left the baby alone. Mr. Munoz-Hernandez replied that he had given him two bottles, so “it was enough for him.”

[773] Mr. Munoz-Hernandez’s evidence that he moved the playpen so that Adriel could keep him company is completely disingenuous and not worthy of belief.

[774] Mr. Munoz-Hernandez had demonstrated a complete lack of concern about Adriel earlier that day when he left him alone in the apartment. His action in moving the playpen into the living room indicates that Mr. Munoz-Hernandez, for some reason, had become very concerned about Adriel’s well-being and wanted to be in a position where he could monitor him more closely. As Crown counsel put it, something dramatic or serious must have happened with respect to Adriel that caused Mr. Munoz-Hernandez to become so worried or concerned. His concern is consistent with a realization that Adriel was sick and not behaving normally, and a knowledge that he had done something that was responsible for his condition.

Ms. DaSilva arrives home

[775] Ms. DaSilva testified that she briefly checked on Adriel when she got home. He was asleep on his back. She could see him breathing. She then got changed and went to bed on the air mattress. The only comment that Mr. Munoz-Hernandez made to her was that she had arrived home late. He did not accuse her of being drunk. He said nothing to her about falling with Adriel while getting out of the shower.

[776] Ms. DaSilva testified that she has no current recollection of where the playpen was located when she got home. She agreed that she told the police during her second interview that it was beside the air mattress in the living room and that she was telling the truth at the time. She did not know how or when the playpen got moved back into the bedroom, which was where it was when the police arrived on September 12. She denied that she moved it. She did not recall seeing Mr. Munoz-Hernandez move it. She testified that she had no reason to move the playpen to the bedroom when she got home. Adriel was asleep. He was, at that time, regularly sleeping through the night. Mr. Munoz-Hernandez agreed in his testimony that Adriel was asleep when Ms. DaSilva arrived home and that he did not wake up.

[777] Ms. DaSilva denied that in order to move the playpen, it would be necessary to lift Adriel out of it. Photographs of the playpen show that one end of it is on wheels. Mr. Munoz-Hernandez moved it from the bedroom to the living room by lifting the back of it and rolling it. Adriel was not in the playpen at the time. However, it appears that there would be no reason to take a sleeping baby out of the playpen in order to move it.

[778] Mr. Munoz-Hernandez testified that when Ms. DaSilva arrived home, she turned on the lights and woke him up. When she kissed him, he detected the smell of alcohol. He told her that she had not only come home late but that she “smelled worse than a horse.” She got angry and upset. He told her about the accident in the shower. She looked at Adriel and said he was fine. Mr. Munoz-Hernandez agreed with her. He then asked her why she was gone all day. She wanted to argue. He asked her to do him a favour and turn off the lights. She got “kind of mad.” She turned the lights off, grabbed the playpen, moved it into the bedroom and slammed the door. He did not see whether she picked up Adriel before moving the playpen.

[779] Mr. Munoz-Hernandez testified that it was late and he was very tired. He rolled over, pulled the blanket over his head and quickly fell back to sleep. He testified: “So if I hear something – I can’t really remember if I heard something, but if I heard something, Jessica was there.” In cross-examination, he admitted that after the door slammed, he did not hear anything. He was unaware of when Ms. DaSilva came to bed: “I fell asleep pretty fast. When she came – if she came to sleep with me, I didn’t feel and I didn’t hear anything.”

[780] Mr. Munoz-Hernandez’s evidence as to Ms. DaSilva’s actions after she arrived home is problematic in a number of respects.

[781] I reject as untrue his evidence that he told Ms. DaSilva about the alleged accident in the shower, as no such accident ever happened. I accept Ms. DaSilva’s evidence that he said nothing to her about having dropped Adriel while stepping out of the shower.

[782] It is clear from both Ms. DaSilva’s and Mr. Munoz-Hernandez’s testimony that Adriel was asleep when she got home and that he did not wake up. There was, in these circumstances, no reason for Ms. DaSilva to move the playpen into the bedroom. There is no evidence that Adriel was a noisy baby when he slept. Ms. DaSilva was used to sleeping in close proximity to him: the playpen was next to the air mattress when she and Mr. Munoz-Hernandez lived at David’s apartment. Both Mr. Munoz-Hernandez and Ms. DaSilva testified that Adriel was regularly sleeping through the night. It was unlikely that he would have woken up until the morning.

[783] Although Mr. Munoz-Hernandez tried to imply in his testimony that he had heard something going on in the bedroom, which would suggest that Adriel woke up and started to cry, or that Ms. DaSilva was assaulting him, he later backed away from that position and acknowledged that he did not hear anything. He then took the position that he would not have heard anything because he fell asleep so quickly. He was in such a deep sleep that he did not even hear or see Ms. DaSilva get into bed with him.

[784] Counsel for Mr. Munoz-Hernandez submitted that Ms. DaSilva moved the playpen because she did not want to be disturbed in the morning and wanted to sleep in. However, even if Adriel were in the bedroom, she would have heard him crying, as he would only have been a few metres away from her.

[785] Although Ms. DaSilva had consumed alcohol that night, the evidence does not, in my view, support the inference that she did not know what she was doing or was acting irrationally to such a degree that she would inflict harm on her sleeping baby out of anger at the accused for insulting her. Ashley estimated that they each consumed more than five drinks over the course of the wedding reception – Ms. DaSilva testified that she consumed six – and that they were both “pretty intoxicated.” However, Ashley went on to say that they were “still walking and stuff like that. We were just having a good time.” The drinks were consumed over a number of hours. They arrived at the reception after 4:30 p.m., and left sometime after 2:00 a.m. Ashley testified that they had to wait about 45 minutes for their aunt, who was the designated driver, to take them home. A photograph taken from the video surveillance footage shows Ms. DaSilva walking into the apartment building shortly after 3:00 a.m.

[786] Ms. DaSilva’s description in her evidence-in-chief as to what she observed when she first woke up that morning supports her evidence that she did not move the playpen from the living room to the bedroom when she got home. The playpen was still in the living room in the morning; no one had moved it.

[787] During her examination-in-chief, Ms. DaSilva testified that she could not recall the location of the playpen when she got home. When shown the police diagram, which shows the playpen in the bedroom, she adopted it as correct. Later on in her examination-in-chief, Ms. DaSilva was asked about what woke her up in the morning. She described being awakened when Mr. Munoz-Hernandez got off the air mattress to check on Adriel. When asked how he checked on him, Ms. DaSilva testified that he looked over the playpen. Ms. DaSilva could not have made that observation from her position on the mattress if the playpen was in the bedroom. Ms. DaSilva gave this evidence prior to cross-examination and before the significance of the location of the playpen, whether it had been moved, and who moved it, would have been apparent. She was simply recounting what she recalled seeing when she woke up for the first time that morning.

[788] Mr. Munoz-Hernandez’s testimony that Ms. DaSilva moved the playpen does not make any sense. She had no reason to move it. In addition, Mr. Munoz-Hernandez’s evidence appeared to be contrived: he initially tried to suggest that he heard a sound coming from the bedroom, but later admitted that he had heard nothing, due to the remarkable rapidity with which he fell asleep.

[789] Ms. DaSilva had been away from Adriel for 18 hours. Unlike Mr. Munoz-Hernandez, she had had a long break from any parental responsibilities. She had no reason to be frustrated with Adriel, whom she had missed during the day: according to Ashley, Ms. DaSilva mentioned multiple times during the wedding reception that she wished she had a way of contacting Mr. Munoz-Hernandez to see how Adriel was doing. Ms. DaSilva, who was described as easy going and happy, had no motive to suddenly, out of the blue, begin to strike or shake Adriel as he slept. It makes no sense that if, as Mr. Munoz-Hernandez testified, she were angry at him because he had insulted her and asked her to turn out the lights, that she would take that anger out on the sleeping Adriel, as opposed to him.

[790] If, for some unknown reason, Ms. DaSilva moved Adriel into the bedroom, there is no evidence that she took him out of the playpen in order to do so. Mr. Munoz-Hernandez testified that he did not see her take him out of the playpen. There is no evidence to suggest that Adriel woke up or made any noise after Ms. DaSilva got home. Mr. Munoz-Hernandez heard no sounds. Again, in these circumstances, it would make no sense for Ms. DaSilva to strike and/or shake Adriel. There would be no reason for her to assault her sleeping baby.

[791] Crown counsel submits that if Ms. DaSilva assaulted Adriel in the bedroom after she returned home, he would have cried or screamed, given the extensive bruising he sustained, as observed by the medical staff at the hospital on September 12. Common sense dictates that there would be some pain associated with the infliction of those injuries, which were described as being the result of the application of significant force. Yet Mr. Munoz-Hernandez heard no sounds coming from the bedroom. The Crown submits that in these circumstances, it may be inferred that Ms. DaSilva did not inflict any injury to Adriel at that time. The Crown submits that Mr. Munoz-Hernandez had already inflicted all the bruises and fatal brain injury to Adriel earlier that evening and prior to Jhon’s visit.

[792] Crown counsel noted that, according to Mr. Munoz-Hernandez’s testimony, the only signs of injury on Adriel around noon on September 11 were redness to his penis and buttocks, and two small light red marks on the lower right side of his abdomen. Mr. Munoz-Hernandez testified that 11 hours later, at 11:00 p.m., the redness to Adriel’s buttocks and penis remained unchanged. The two marks on the right side of his abdomen were a little more purple or red. These were the only injuries that he observed. However, the bruises noted by Dr. Cory at 5:50 p.m. on September 12, and which were photographed by police and hospital staff on September 13, were far more numerous and extensive than those described by Mr. Munoz-Hernandez. The Crown submits that, based on Mr. Munoz-Hernandez’s testimony, Ms. DaSilva must have caused these additional bruises after she returned home that night. The Crown submits that this is highly improbable, given his evidence that he heard no crying or any other sound indicative of such a vicious assault being perpetrated. The injuries over and above what Mr. Munoz-Hernandez says he observed include the following:

1. In addition to bruising across the entire upper half of Adriel’s left buttock, there were two red-purple bruises on the left outer hip that overlay the bony prominence of the hip. There was also a linear red-purple bruise above these two bruises.

2. There were two closely associated similar green/brown bruises on the outer part of the left upper thigh that were almost rectangular in shape but separated from each other by an area of normal skin. These marks could have resulted from the use of an object or from forceful pinching of the skin.

3. There were seven to nine bruises on Adriel’s abdomen, including a patterned bruise to the right of the belly button. Above that bruise, there was a 3.5 cm x 1.5 cm bruise. Further up and closer to the chest, there were a number of smaller bruises.

4. On the lower abdomen, above the genital area, there was a large bruise – 5 cm x 3 cm – overlaying the bony prominence of the pubic bone. That bruise was most likely caused by the application of force in that area, where the skin became compressed or crushed against the underlying bone. Dr. Cory testified that the mechanism that caused the abdominal bruising would have involved significant force, whether it was from grabbing, pinching or a blow or blows.

5. Adriel had extensive bruising to his penis, including red/purple bruising and swelling of the head of the penis, and red/purple bruising to the entire bottom surface of the shaft of the penis. The possible mechanisms that caused these injuries include a blow that compressed or squeezed the penis, a forceful pinching, or a bite, in which the area was compressed but the skin surface was not broken.

There were also pinpoint bruises or petechiae toward the base of the penis, which were most likely caused by the direct application of force, which would include sucking. The fact that the bruises to the penis appear to be darker in colour than other bruises on the body does not mean that the penis received the most impact. The presence of many small blood vessels running through the shaft would influence the colour of the bruise.

[793] Defence counsel submits that all these “additional” bruises could have been caused by Ms. DaSilva having assaulted Adriel sometime prior to her leaving him with the accused on September 11, and that they only developed or became visible sometime after Mr. Munoz-Hernandez changed Adriel’s diaper for the last time around 11:00 p.m. Defence counsel also submits that there is no evidence that the mechanism of injury that caused the brain swelling and subdural hemorrhage would have resulted in Adriel crying out or making any noise.

[794] The hospital staff noted over a dozen bruises and marks on Adriel, in addition to those that Mr. Munoz-Hernandez says he saw. It may seem unlikely to a layperson that the development of so many bruises on Adriel’s body would be delayed, especially given Mr. Munoz-Hernandez’s testimony that there was very little change in the bruising he observed between noon and 11:00 p.m. However, based on the expert evidence, I agree with defence counsel that no conclusion can be drawn from the bruises themselves as to when they were inflicted. Dr. Cory could not say whether the multiple bruises observed on Adriel when he arrived at the hospital happened all at once, or within five minutes of each other, or over the course of a couple of days. She could not accurately date any of his bruises. She also testified that bruises may take a while to develop and that their appearance may evolve over time. There is no study that clarifies the time frame required for a bruise to become visible. Time-frames will vary depending on the part of the body affected, the amount of force applied, and the depth or amount of tissue involved. Dr. Cory was not questioned as to how these factors may have affected the development of any of the particular bruises observed on Adriel; for example, the red-purple bruises overlaying the bony prominence of his hip, or the large bruise over his pubic bone, which was likely caused when the skin was compressed or crushed against the underlying bone. In the absence of such evidence, the Court cannot speculate as to the time-frame involved for the development of those bruises.

[795] In any event, Ms. DaSilva’s evidence that she did not move the playpen into the bedroom when she got home is supported by the fact that she had no reason to move it: Adriel was asleep and did not wake up. He was regularly sleeping through the night. Ms. DaSilva was used to sleeping in close proximity to him.

[796] There is no evidence that Adriel woke up that night, even if he had been moved to the bedroom. Whether he was sleeping in the living room or the bedroom, Ms. DaSilva would have had no reason to strike or shake him as he slept. Such a scenario is even more improbable, given the fact that she had been away from Adriel for the entire day and, according to Ashley, had been thinking of him and wondering how he was doing.

[797] Ms. DaSilva’s evidence that she cannot currently recall when the playpen was moved back into the bedroom appears to be genuine. She denied moving it. If she were fabricating her evidence, she could have simply testified that the accused moved it in the morning and before they went to the hospital. But she did not. Ms. DaSilva cannot recall seeing Mr. Munoz-Hernandez move it.

[798] I note that based on Ms. DaSilva’s testimony, Mr. Munoz-Hernandez would have had the opportunity to move the playpen before he woke her up for the second time that morning.

Events on the morning of September 12

[799] According to Ms. DaSilva, Mr. Munoz-Hernandez woke her up twice on the morning of September 12. The first time is as described above. The second time, he told her that they had to get Adriel to the hospital. He did not say why. Ms. DaSilva got up and went to Adriel, who was on his back in the playpen. He appeared to be sleeping. She put him on the mattress. He did not wake up and was unresponsive. When she took off his clothes and diaper, she saw bruises under his belly button and on and around his penis. There were marks on his back. A mark on his lower right side appeared to be a bite mark.

[800] Ms. DaSilva described herself at that moment as upset, crying, scared, and confused. When she asked Mr. Munoz-Hernandez what had happened, he said that he did not know and that he was scared. He did not say why he was scared. She swore at him and repeatedly asked him in a loud voice, “What happened? What did you do?” He just kept saying, “I don’t know. I don’t know,” and “I’m scared.” He never explained to her what happened or suggested that someone else had hurt Adriel.

[801] Ms. DaSilva gathered together Adriel’s things, got his bag, and put him in the stroller. Mr. Munoz-Hernandez also got his things together and was pacing back and forth. They left the apartment within about ten minutes. On their way to the elevator, he told her to tell the “Clara” story to the police. She could not recall if he also spoke to her in the elevator. It was Mr. Munoz-Hernandez who first mentioned the police. He also said that he was scared to go to jail.

[802] Ms. DaSilva testified that she did not respond to Mr. Munoz-Hernandez’s suggestion regarding the “Clara” story because she was focused on getting Adriel to the hospital. Although there may have been a closer hospital to where they lived, she decided to take him to the Hospital for Sick Children because she thought “they were the best ones to take care of a child.” She was afraid that Adriel was going to die. He continued to be unresponsive and was having difficulty exhaling.

[803] Mr. Munoz-Hernandez denied making any comment about being afraid of going to jail or telling Ms. DaSilva to make up a story for the police. Defence counsel pointed out that in the surveillance video of the hallway leading to the elevator, Ms. DaSilva and Mr. Munoz-Hernandez do not appear to be talking to one another. However, the camera was rotating so that only a portion of their activities in the hallway and as they waited for the elevator were captured. There apparently was no surveillance camera in the elevator itself. As Crown counsel noted, it would not take a great deal of time for Mr. Munoz-Hernandez to communicate what he wanted Ms. DaSilva to say: that Clara was 23, from Mexico, lived near St. Clair and Dufferin, and that she dropped off Adriel that morning in his current condition.

[804] According to Mr. Munoz-Hernandez, it was Ms. DaSilva who woke him up and not the other way around. She was holding Adriel, as well as a bottle. She told him that something was wrong with Adriel and that he was not eating or responding. Adriel appeared to be in a deep sleep.

[805] Ms. DaSilva denied that she woke up Mr. Munoz-Hernandez. She denied trying to feed Adriel that morning. She testified that she noticed his outfit was wet after Mr. Munoz-Hernandez woke her up the second time, and as she carried Adriel to the mattress.

[806] It may not have been a wise decision for Ms. DaSilva to take the time to change Adriel’s outfit but, in the circumstances, it was understandable that she would want to check him quickly.

[807] Mr. Munoz-Hernandez testified that he told Ms. DaSilva that they had to get to a doctor but she did not want to go, stating that she would get into trouble if people saw the bruises. He finally convinced her that they had to get to the hospital, but Ms. DaSilva took her time getting ready. She was doing her hair, putting on make-up, and putting fresh clothes on Adriel. He kept urging her to hurry up. They left the apartment after about ten minutes.

[808] Defence counsel submits that it is unlikely that Mr. Munoz-Hernandez would have gotten up to check on Adriel, given his track record of not being involved in his day-to-day care. However, his checking on Adriel twice that morning, as attested to by Ms. DaSilva, is consistent with the concern Mr. Munoz-Hernandez had shown about the baby during Jhon’s visit, when he was preparing the warm water bottles. It is also consistent with the concern he demonstrated by moving the playpen into the living room so that he could monitor Adriel more closely.

[809] In my view, there was a ring of truth to Ms. DaSilva’s account as to how she was first awakened by Mr. Munoz-Hernandez that morning. She testified that she woke up when he got off the air mattress to check on Adriel. She asked him if Adriel was okay. Mr. Munoz-Hernandez responded that he was fine. The two of them then fell back to sleep. There was no reason for Ms. DaSilva to fabricate this detail. There was no reason for her to fabricate having been awakened by Mr. Munoz-Hernandez on two occasions that morning.

[810] Defence counsel submits that Mr. Munoz-Hernandez’s account of events, that is, that Ms. DaSilva woke him up, that she was holding Adriel, and had a bottle of formula in her hand, is supported by the presence of milk on Adriel’s outfit. Ms. DaSilva denied that she got up first, prepared a bottle of formula, attempted to feed Adriel, and then realized that he was unwell. She testified that she first observed that his outfit was wet after Mr. Munoz-Hernandez woke her up the second time, and as she carried Adriel to the mattress.

[811] Assuming that the substance on Adriel’s clothing was milk, and not the result of his having spat up or been sick at some point, Mr. Munoz-Hernandez had the opportunity, based on Ms. DaSilva’s evidence, to try to rouse Adriel by attempting to feed him prior to his waking her up. The bottle of formula that was taken to the hospital, and which is seen in a photograph of the stroller, could have been prepared by Mr. Munoz-Hernandez the night before, although he denied that this was the case.

[812] Mr. Munoz-Hernandez portrayed Ms. DaSilva as completely heartless: she was prepared to withhold medical help from her comatose baby in order to protect herself from investigation. However, this portrayal is completely inconsistent with Ms. DaSilva’s conduct at the hospital, where she had no hesitation in giving her consent to the emergency room doctors to contact the police. In addition, rather than dragging her heels in terms of getting Adriel medical help, Ms. DaSilva made the decision to take him directly to the Hospital for Sick Children, where she felt he could get the best care available. That was her decision and not that of the accused. It indicates her involvement and her level of concern in getting Adriel the necessary medical treatment. I also note that in surveillance photographs of their taxi ride to the hospital, Ms. DaSilva appears to be completely focused on Adriel while holding him in her arms. She testified that she was crying. In one photograph, she is seen wiping a tear from her eye. Mr. Munoz-Hernandez is seen staring out the rear passenger window of the taxi and away from Adriel.

[813] I did not find Mr. Munoz-Hernandez’s account of events that morning to be credible.

At the hospital

[814] The evidence of both Ms. DaSilva and Mr. Munoz-Hernandez indicates that there was barely any interaction between them while they were at the hospital. Ms. DaSilva went in first; Mr. Munoz-Hernandez came in later after he paid for the taxi. He did not speak to any of the medical staff, although he saw Ms. DaSilva speaking to doctors and someone in the emergency room. He testified that he waited and walked around. At one point, he spoke to Ms. DaSilva in the waiting room and asked her what was going on. She told him that there was a problem with Adriel’s breathing. Mr. Munoz-Hernandez remained at the hospital for an hour or two, but left when he saw police officers talking to Ms. DaSilva. He testified that he was aware at that time that Adriel looked very sick and had bruises, but did not know that he was in a life-threatening situation.

[815] No adverse inference can be drawn against Mr. Munoz-Hernandez from the fact that he left the hospital: his act of leaving when he saw the police is as consistent with a fear that he would be arrested for breaching his recognizance as it is with the actions of someone who was responsible for causing Adriel’s injuries.

[816] Ms. DaSilva testified that Adriel was immediately taken to another room upon their arrival at the hospital. She was present when the doctors drained blood from his head. At some point, she was told that he required emergency brain surgery and had only a few hours to live. While she was in the waiting room speaking to a chaplain, Mr. Munoz-Hernandez came in but stayed for only about five minutes. She never saw or heard from him again.

[817] Ms. DaSilva initially testified that she and the accused did not speak to each other in the waiting room. However, in cross-examination and re-examination, she agreed that she told the police that after the chaplain left, Mr. Munoz-Hernandez told her, “Don’t say anything to the police.” He also said that he was really scared, and that she should “say my story and stuff like that.”

The “Clara” story

[818] Mr. Munoz-Hernandez denied telling Ms. DaSilva to tell the police the Clara story. The position of the defence is that the “Clara” story was entirely Ms. DaSilva’s invention.

[819] Crown counsel submits that Ms. DaSilva’s evidence that the accused told her to tell the Clara story is credible and reliable. The Crown also submits that when Mr. Munoz-Hernandez tried to get a message to Ms. DaSilva, via his mother, to tell the “truth,” he was actually referring to the Clara story. He could not very well have sent the message: “Tell Ms. DaSilva to tell the police the Clara story.” Mr. Munoz-Hernandez had no way of knowing that Ms. DaSilva had already told the police the story but had later recanted it.

[820] Ms. DaSilva testified that Mr. Munoz-Hernandez told her to tell the story when they were on their way to the elevator. She could not remember if they spoke while in the elevator. Her evidence was to the effect that he gave her the bare bones of the story: Clara was 23, from Mexico, lived near St. Clair and Dufferin, and had dropped off Adriel that morning in his current condition. Ms. DaSilva acknowledged having made up all the other details about Clara.

[821] As stated earlier, although Ms. DaSilva and Mr. Munoz-Hernandez do not appear in the surveillance video to be talking to each other (there was no audio recording), the rotating camera captured only part of their movements in the hall and as they waited at the elevator. As a result, the surveillance footage is inconclusive as to whether Mr. Munoz-Hernandez spoke to Ms. DaSilva during that time frame.

[822] In determining whether Ms. DaSilva told the police the Clara story at the behest of Mr. Munoz-Hernandez, I do not place much weight on the fact that she admitted having told the story to the hospital staff of her own accord. As Crown counsel put it, it does not take a rocket scientist to figure out that you have to tell the same story to everyone who asks.

[823] The effect of the Clara story, had the police believed it, would have been to remove Mr. Munoz-Hernandez as a potential suspect in their investigation into who assaulted Adriel. It was Mr. Munoz-Hernandez who stood to benefit from the story.

[824] Ms. DaSilva testified that when Mr. Munoz-Hernandez told her to tell the police the Clara story, he also stated that he was scared of going to jail or being arrested. Mr. Munoz-Hernandez had also made a comment about jail to Jhon the previous night: “How fucked it will be like to be in a jail in a country like this by yourself without family.” Although Mr. Munoz-Hernandez did not acknowledge having made this remark, I have found that he did make it. Mr. Munoz-Hernandez testified that the remark, if he did make it, would have been a reference to his friend Walter’s situation. However, as previously noted, Walter was already in jail, whereas Mr. Munoz-Hernandez’s comment refers to something that had not as yet happened. As stated earlier, the comment to Jhon, which “just came out,” lends support to Ms. DaSilva’s testimony that Mr. Munoz-Hernandez expressed concern about going to jail.

[825] I note that Mr. Munoz-Hernandez was not shy about telling Ms. DaSilva what to do; for example, he told her that she should get a job, ask Adriel’s father for money, not put Adriel in the bed at her father’s house, not leave Adriel overnight with a babysitter, etc.

[826] I also note that Ms. DaSilva was not the one trying to avoid the police. She consented to the emergency room doctors contacting the police. She spoke to the police while at the hospital and agreed to accompany them to 52 Division that afternoon. She re-attended at the station later that day.

[827] Ms. DaSilva testified that when she told the police the Clara story, she was scared and confused. She explained: “At the time, I was just – I didn’t understand what was happening … Ronny had told me the story and I was just confused as to why or what was happening or … I just was filled with emotions.” She knew at the time that Adriel was expected to die, but she was still hoping that he would live. Her family members – her mother, Ashley, and Ashley’s mother – had not as yet arrived at the hospital. She felt alone. She testified that Mr. Munoz-Hernandez had told her what to say and she just went along with it.

[828] That Ms. DaSilva was overwhelmed by the events of that day is apparent from her confusion as to how long she was at the police station following her statement. She thought that she returned to the hospital about five or ten minutes later. She had no recollection of being in the cafeteria at 52 Division in the company of a police constable for almost three hours. I am satisfied that this gap in Ms. DaSilva’s memory is genuine. There would be no point in her attempting to lie about how long she was at the station since the police would obviously have records to refute her claim. It is reasonable to infer that her emotional state at that time, in light of the news that Adriel’s death may be imminent, affected her ability to take in or recall other events that evening.

[829] Counsel for Mr. Munoz-Hernandez submits that Ms. DaSilva realized that the Clara story was “not going to fly” when Det. Sgt. Brown told her that he had concerns about her inability to provide more information about Clara, and after it was clear that Ashley had been interviewed by the police. Ms. DaSilva consequently decided to switch to the “Ronny” story to protect herself. She called the police shortly before midnight and asked to be re-interviewed.

[830] It is significant, however, that when Ms. DaSilva told the “Ronny” story, she did not attempt to implicate Mr. Munoz-Hernandez, or to portray him as a violent or uncaring person in order to deflect any blame from herself. Rather, she described Mr. Munoz-Hernandez as a “really nice person” who was loving and kind towards Adriel. This speaks to her credibility and indicates that her request to be re-interviewed was not part of some cunning or devious plot to frame Mr. Munoz-Hernandez. Ms. DaSilva was equally positive about the accused’s relationship with Adriel when she testified at the preliminary hearing. At trial, she adopted as true those parts of her statement, as well as her prior testimony.

[831] Ms. DaSilva testified that she went back to the police station to tell the truth. It is noteworthy that the essential elements of both her statements were the same: when she left to go to the wedding, Adriel was fine. When she returned, he was critically injured. She had no idea how he incurred his injuries. The only thing that changed in her two accounts was who had been babysitting Adriel that day. Ms. DaSilva lied to the police to protect Mr. Munoz-Hernandez.

[832] The common sense inference in all of the circumstances is that Ms. DaSilva told the police the Clara story after being told to do so by the accused.

After-the-fact conduct: Mr. Munoz-Hernandez leaves the province and goes to Montreal

[833] After leaving the hospital, Mr. Hernandez went to his friend, Maelo’s, place. He and Maelo later drove to 15 Martha Eaton Way, where Maelo went inside and confirmed what Jefferson had told them – namely, that the police were at the accused’s apartment. Mr. Munoz-Hernandez stayed at Maelo’s place that night.

[834] The following day, Mr. Munoz-Hernandez borrowed Maelo’s car and cell phone and returned to the hospital with his cousin, Jessica. Jessica went inside. When she returned, she told him that Adriel was in serious condition and that Ms. DaSilva was blaming him for Adriel’s injuries, telling people that he had “done this on purpose” and that the police were looking for him.

[835] Mr. Munoz-Hernandez testified that he was scared. He was concerned that people would believe Ms. DaSilva and not believe him because he was from another country. He noted that when he and Ms. DaSilva were arrested on the theft charge, Ms. DaSilva was released the same day but he spent the weekend in jail. He testified that he was in a panic and did not know what to do.

[836] Mr. Munoz-Hernandez spoke to David on the telephone three times that day. According to Mr. Munoz-Hernandez, he told David that Adriel was sick and that Ms. DaSilva was blaming him for his condition. He asked David for money but David turned him down.

[837] David’s account of these conversations, which I accept, is very different from that of Mr. Munoz-Hernandez. According to David, Mr. Munoz-Hernandez never mentioned anything about Ms. DaSilva blaming him for Adriel’s condition or being worried that people would believe her and not him. In fact, Mr. Munoz-Hernandez did not mention Adriel or Ms. DaSilva at all during their first conversation.

[838] David testified that in the first call, Mr. Munoz-Hernandez asked him for money for a ticket to Vancouver. David, who did not have the money, told him “no.” Mr. Munoz-Hernandez then asked him if he could get money from a friend or through a credit card. David again said “no.” When David asked him why he wanted to go to Vancouver, Mr. Munoz-Hernandez told him that he had a “problem” and needed money to travel. He said that he would tell him about it later.

[839] David testified that it was not until the second or third call that Mr. Munoz-Hernandez told him that Adriel was in the hospital. When David asked him what happened, Mr. Munoz-Hernandez told him that he would tell him later. “Later” never came. For the next ten months, David had no idea where his brother was.

[840] Sometime after these calls, Mr. Munoz-Hernandez drove to David’s apartment. David was not home. Mr. Munoz-Hernandez was there for only five minutes – just long enough to locate and steal David’s driver’s licence.

[841] Mr. Munoz-Hernandez initially tried to create the impression that David’s driver’s licence just happened to be lying around in plain view and that his theft of it was a spontaneous act: “When I went to the apartment, I didn’t know that the driver’s licence was – whether the driver’s licence was there or not. I saw it when I was in the apartment and that’s when I took it.” However, it became clear in cross-examination that Mr. Munoz-Hernandez went looking for the licence and found it in a box in a closet. The theft was deliberate. It is an indication that Mr. Munoz-Hernandez was thinking calmly and clearly in planning his flight from the province. He was not acting in a state of panic.

[842] Mr. Munoz-Hernandez’s next stop was Edgar Albarrecin’s residence, where he obtained a backpack. From there, he went to the travel agency at Yorkdale and bought the ticket to Vancouver. He had Loncho wire him the money for the ticket.

[843] Mr. Munoz-Hernandez testified that Loncho, Jefferson, Maelo, Edgar, and Chafas were all telling him to “stay away.” He agreed, however, that it was his own idea to go to Vancouver. He later changed him mind and decided to enlist Chafas and Jefferson to drive him to Montreal, where he obtained false identification papers and lived under an assumed name for ten months.

[844] Mr Munoz-Hernandez testified that while living in Montreal, he called his mother many times and asked her to ask David to pass on a message to tell Ms. DaSilva to tell the truth. He hoped that someone would “catch her in a lie.” When nothing happened, he returned to Toronto and turned himself in.

[845] In my view, Mr. Munoz-Hernandez’s evidence that he acted out of panic and fear is not credible. If his concern was that Ms. DaSilva was falsely blaming him for Adriel’s condition, one would expect that he would have conveyed that concern to his brother when he called him to ask him for money to leave town. Mr. Munoz-Hernandez testified that he did, in fact, tell David that Ms. DaSilva was blaming him for Adriel’s injuries. However, his testimony in that regard was not the truth. It is clear from David’s evidence that the only thing Mr. Munoz-Hernandez told him was that he had a “problem.”

[846] On the second or third call, Mr. Munoz-Hernandez told David that Adriel was in the hospital, but declined to provide any further details – not a word about Adriel’s serious condition, Ms. DaSilva’s false accusations, or his fear that he would not be believed or would be treated unfairly because he was not born in Canada. He said nothing about being scared or not knowing what to do.

[847] Mr. Munoz-Hernandez attempted to lay some of the blame for his leaving the province on various friends or relatives, who were all telling him to “stay away.” However, Mr. Munoz-Hernandez, despite his young age, was clearly making his own decisions. He initially decided to go to Vancouver, but later changed his mind and went to Montreal. He had the wherewithal to obtain false identification and lived for ten months under an assumed name before returning to Toronto.

[848] Mr. Munoz-Hernandez’s actions in leaving Ontario were deliberate, logical and extremely effective. After considering all of the evidence, I reject his explanation that he fled because he was in a panic, or out of fear that he would not be treated fairly or would not be believed because he was from another country. Mr. Munoz-Hernandez’s flight from Ontario is a piece of circumstantial evidence that may be considered in determining whether the Crown has established that he caused Adriel’s fatal brain injury.

SUMMARY OF FINDINGS

[849] Ms. DaSilva’s testimony must be examined very carefully in light of her telling the police the Clara story, and her testimony with respect to her attendance at school from March to the end of June, while living with her grandparents. Her evidence regarding the timing of her move into David’s apartment was inconsistent. Her evidence as to the circumstances of that move was problematic. She lied to Natasha when she texted her that she was at church and that her cousin was babysitting Adriel. She lied to her relatives at the wedding reception when she told them that Adriel was with Cassandra. As outlined in these reasons, there are gaps in her memory with respect to various events leading up to and including September 11 and 12. Some of her inability to recall details may be attributed to the stress and trauma that she experienced over the nine weeks that Adriel was in the hospital. Nevertheless, the circumstances are such that caution is required in assessing her evidence.

[850] Ms. DaSilva’s evidence that her original plan was to have Natasha babysit Adriel while they were at the wedding is supported by the content of the text messages she sent to Natasha. In addition, Ms. DaSilva told Ashley on the morning of September 11 that Natasha was going to babysit Adriel.

[851] Ashley’s evidence also supports Ms. DaSilva’s testimony that Mr. Munoz-Hernandez offered to babysit Adriel that day. Ashley testified that by the time they left Tim Horton’s, Ms. DaSilva had made it clear to her that Mr. Munoz-Hernandez wanted to babysit Adriel and that he would be looking after him for the entire day.

[852] Mr. Munoz-Hernandez’s testimony that he never offered to babysit Adriel was not credible. Based on his evidence, Ms. DaSilva saddled him against his will with the responsibility of looking after Adriel by walking out of the apartment and not returning. One would expect that in these circumstances, he would have been very angry, or at least extremely annoyed. However, Mr. Munoz-Hernandez never uttered a word of complaint about Ms. DaSilva’s behaviour to either Jhon or Arlinton. For the reasons stated earlier, Mr. Munoz-Hernandez’s explanation – that he did not complain because he thought Ms. DaSilva might be coming back – is not credible. By 11:00 p.m., Ms. DaSilva was still not home. She had been gone for the entire day. Yet Mr. Munoz-Hernandez still said nothing to Jhon about having been tricked into looking after Adriel. The inference to be drawn is that Mr. Munoz-Hernandez had no reason to complain: he had offered to look after Adriel.

[853] In order to support his position that he would never have volunteered to babysit Adriel, Mr. Munoz-Hernandez attempted to minimize his relationship with both Ms. DaSilva and Adriel. He testified that he had no interest in a relationship with Ms. DaSilva, and did not consider her to be his girlfriend. This was in contrast to David’s evidence that Mr. Munoz-Hernandez always introduced Ms. DaSilva to others as “my girlfriend.” David himself referred to Ms. DaSilva as “Ronny’s girlfriend.”

[854] According to Mr. Munoz-Hernandez, his move to the apartment at 15 Martha Eaton Way was just temporary, or for a few days, even though he had co-signed the lease, paid the rent, and bought curtains for the place. For the reasons outlined earlier, I am satisfied that Mr. Munoz-Hernandez and Ms. DaSilva took up residence at the apartment as a couple.

[855] Mr. Munoz-Hernandez testified that he “liked” Adriel, but did not love him. In cross-examination, he eventually acknowledged that he had a “kind of love” for him.

[856] Mr. Munoz-Hernandez showed an interest in Adriel from the outset. He played with him, and bought him clothes and other items. David testified that Mr. Munoz-Hernandez loved Adriel, and treated him as though he were his own child. Ms. DaSilva’s evidence was to the same effect. Mr. Munoz-Hernandez’s expressed interest in giving Adriel his last name, which he denied, but which I have found to be a fact, indicates that he wanted and was prepared to play a fatherly role in Adriel’s life on a longer term basis. It also indicates and lends support to Ms. DaSilva’s evidence that Mr. Munoz-Hernandez spoke of their raising Adriel together and that he was concerned that Adriel might later return to his father.

[857] Defence counsel submits that it was unlikely that Mr. Munoz-Hernandez offered to babysit Adriel, given his lack of prior involvement in Adriel’s day-to-day care. However, Mr. Munoz-Hernandez had looked after Adriel for short periods of time in the past and, on one occasion, had babysat him for four hours. By all accounts, Adriel was an easy baby to look after. In addition, as Crown counsel pointed out, the move to the apartment marked the beginning of Mr. Munoz-Hernandez, Ms. DaSilva, and Adriel all living together as a family. In this context, Mr. Munoz-Hernandez might well have wanted to take the opportunity to play a greater role in terms of parenting Adriel. His intentions may have been good but, given his inexperience in caring for infants, he most likely had no idea what he was signing up for, or how tiring and demanding it can be to look after a baby.

[858] Defence counsel submits that Mr. Munoz-Hernandez would be unlikely to offer to stay home and look after Adriel in an apartment that was devoid of furniture, except for a playpen and mattress, and where there was nothing to do. However, for much of the day, Mr. Munoz-Hernandez did not let Adriel’s presence interfere with his personal plans. He went about his own business, leaving the apartment to have a manicure, buy curtains, shop for a cell phone at a mall, and buy marijuana. He spent four-and-a-half hours out and about with his friends. Jhon and Arlinton also visited him at the apartment and, during their respective visits, smoked marijuana with him on the balcony.

[859] The totality of the evidence indicates that Mr. Munoz-Hernandez offered to babysit Adriel on September 11.

[860] The position of the defence is that Ms. DaSilva caused all of Adriel’s bruises during a beating administered sometime prior to the morning of September 11 but that the majority of those bruises did not become visible until sometime after Mr. Munoz-Hernandez changed Adriel’s diaper at 11:00 p.m.

[861] Ms. DaSilva adamantly denied that she ever caused any physical harm to Adriel.

[862] There is no evidence that Ms. DaSilva had ever abused Adriel in the past. There is no evidence that she had a history of trying to prevent others from seeing him. No one ever observed any injuries on Adriel. David saw Adriel on a daily basis, except for the month that he was in the hospital. There is no evidence that David ever saw any marks or bruises on Adriel.

[863] David was with Adriel for an hour-and-a-half on September 9. It would be unlikely that Ms. DaSilva would have allowed David to have such access to Adriel if he had bruises at that time, as David had no hesitation in changing Adriel’s diaper.

[864] Ashley was not in a position during her visit on the evening of September 10 to observe whether Adriel had bruises in the diaper area. However, Adriel appeared to be healthy and happy. There was nothing in his behaviour to suggest that he had recently been the victim of a vicious assault.

[865] For the reasons previously stated, I find it is highly unlikely that Ms. DaSilva assaulted Adriel after Ashley’s visit. Ms. DaSilva and Mr. Munoz-Hernandez were home together after Ashley’s departure until about 8:30 a.m. on September 11, when Ms. DaSilva left to go to her grandmother’s house. Mr. Munoz-Hernandez made no mention in his evidence of hearing or seeing anything in their small apartment that would suggest that Ms. DaSilva assaulted Adriel after Ashley’s visit.

[866] If, as Mr. Munoz-Hernandez testified, Ms. DaSilva was concerned that her sister would find out about the bruises and report her to the Children’s Aid Society, it makes no sense that she would tell him to contact her sister if he had any questions about Adriel’s care. Nor does it make sense that Ms. DaSilva would attempt to have Natasha babysit Adriel that morning, or leave Natasha’s and Mark’s phone numbers with Mr. Munoz-Hernandez. Such behaviour is not consistent with an attempt by Ms. DaSilva to keep Adriel away from other people for fear they would discover the alleged bruises.

[867] In assessing the credibility of Mr. Munoz-Hernandez’s evidence with respect to the bruising, I take into account the fact that he fabricated his evidence with respect to three other incidents in which he says Adriel sustained an injury; namely, the fall from a bed at Ms. DaSilva’s grandmother’s house, the fall from the bed at her father’s house, and the “shower” accident.

[868] I find that Mr. Munoz-Hernandez made up his testimony regarding the fall from the bed at Ms. DaSilva’s father’s house in order to cast Ms. DaSilva in a negative light, and to explain his response to Jhon, after Jhon saw Adriel’s bruises and commented on them: he told Jhon that Adriel had fallen from a bed a few days earlier. That response was a lie. There was no such fall.

[869] Mr. Munoz-Hernandez’s testimony with respect to the bruises was inconsistent. On the one hand, he testified that the bruising was so serious that Ms. DaSilva felt her family and friends would be shocked if they saw it and would report her to the Children’s Aid Society. On the other hand, Mr. Munoz-Hernandez described the bruising as “not that bad.” It consisted of redness to Adriel’s buttocks and penis, which looked like a diaper rash, and two light red marks on the side of his abdomen. If the bruising were as innocuous as that, there would have been no reason for Ms. DaSilva to be so concerned about it. There would have been no reason for her to make such an urgent appeal to him to look after Adriel, to the point where he says she ultimately abandoned Adriel in his care and walked out the door.

[870] If, as Mr. Munoz-Hernandez testified, Ms. DaSilva told him that Adriel was bruised to the point where she feared involvement by the Children’s Aid Society, it makes no sense that he would not have asked her a single question about the alleged injuries, given the concern he had expressed in the past about Adriel’s welfare. For the reasons stated earlier, I did not find Mr. Munoz-Hernandez’s explanations for his lack of curiosity or concern about the bruises to be credible.

[871] Mr. Munoz-Hernandez’s evidence that he intended to discuss the pinch mark with Ms. DaSilva’s father – a man whom he had never met or spoken to, and who was not even in the country at the time – was not credible.

[872] Although Mr. Munoz-Hernandez testified that he was going to talk to David about the pinch mark, he never did. He had the opportunity to raise the matter during his telephone conversations with David on September 13, and to discuss his observations; that is, that Ms. DaSilva was abusing Adriel, that he had seen evidence of the abuse when she left him in his care, and that she was now wrongly blaming him for all his injuries. However, Mr. Munoz-Hernandez made no mention of any of these things. Instead, he told David that he had a “problem” and asked him for money so that he could travel. In a later call, he told David that Adriel was in the hospital, but did not say why or what had happened.

[873] In explaining why he did not accept Jhon’s offer to have his grandmother babysit Adriel, Mr. Munoz-Hernandez testified that he did not know her that well and he thought she was weird. He made no mention of having any concern that the grandmother might discover the bruising or pinch mark. This omission suggests that Adriel had no pinch mark at that time.

[874] Based on all of the evidence, I find that there were no bruises on Adriel on the morning of September 11, when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care.

[875] Mr. Munoz-Hernandez and Ms. DaSilva were the only two people who had the opportunity to cause Adriel’s fatal brain injury. Ms. DaSilva denied causing Adriel any harm. Her evidence must be examined very carefully. However, it must not be assessed in isolation but in the context of all of the evidence, including Mr. Munoz-Hernandez’s opportunity to commit the offence, his motive, the medical evidence, and his after-the-fact conduct.

[876] Ms. DaSilva left the apartment around 8:30 a.m. She returned around 9:30 a.m., and left again at about 10:00 a.m. She did not return again until shortly after 3:00 a.m. Adriel was in the exclusive care of Mr. Munoz-Hernandez during her absence.

[877] Mr. Munoz-Hernandez showed extreme indifference towards Adriel by leaving him alone in the apartment on three separate occasions, for a total of four-and-a-half hours. His indifference was also apparent when, in response to Jhon’s question as to why he had left Adriel alone, Mr. Munoz-Hernandez stated that he had given Adriel two bottles so “it was enough for him.”

[878] Arlinton discovered that Mr. Munoz-Hernandez had left Adriel alone after they returned from Emmett Avenue. According to his statement to the police on September 14, which Arlinton acknowledged as the truth, Adriel was crying as they entered the apartment. When Arlinton asked him why he had left Adriel alone “all this time,” Mr. Munoz-Hernandez faked a laugh and told him that he was a strong kid and that he could handle it.

[879] Mr. Munoz-Hernandez denied that he made the “spicy sauce” comments to Arlinton, and attempted to attribute a motive to Arlinton to make up the comments – that he saw Arlinton touching Ms. DaSilva’s hand. I reject his evidence in that regard and am satisfied that Arlinton had no motive to fabricate his testimony. I am satisfied that Mr. Munoz-Hernandez made the comments, as alleged by Arlinton.

[880] Arlinton was in the apartment from 6:51 p.m. until 8:24 p.m. Arlinton told the police officer on September 14 and another officer on September 20, that Mr. Munoz-Hernandez made the “spicy sauce” comments during this visit. Two years later, at the preliminary hearing, he testified that they were made on the walk home from Emmett Avenue. As a result of the passage of time, Arlinton has no current recollection as to when the comments were made. In my view, they were most likely made during his visit to the apartment that evening, which was when he first learned that Mr. Munoz-Hernandez was babysitting Adriel.

[881] Mr. Munoz-Hernandez’s comments that he used to put spicy sauce on Adriel’s lips, put him in the fridge, and put him in a cold tub because he was a cry baby, demonstrate an intolerance for Adriel’s crying.

[882] Mr. Munoz-Hernandez was alone in the apartment with Adriel from 8:24 p.m. until 11:07 p.m. He admitted that he was bored. The only thing that he recalled doing during this period was taking Adriel with him into the shower and slipping and dropping Adriel as he stepped out of the bathtub. For the reasons stated earlier, I found that Mr. Munoz-Hernandez’s evidence regarding the shower incident was fabricated. There was no such fall.

[883] By 11:07 p.m., Adriel was clearly feeling sick. Mr. Munoz-Hernandez was concerned about him, and was preparing the bottles of warm water when Jhon walked in. When Jhon noticed the bruises on Adriel, Mr. Munoz-Hernandez lied to him and told him that Adriel had fallen out of bed a few days earlier.

[884] Jhon testified that Adriel appeared to be uncomfortable: he was fussing and moving around, as though he was asking to be taken out of the stroller. He continued to be fussy and uncomfortable even after Jhon picked him up and put him on the mattress.

[885] Jhon described the sounds that Adriel was making as normal baby sounds. As stated earlier, in considering his evidence in this regard, I bear in mind Dr. Cory’s evidence that there is a certain subjective component in terms of assessing the sounds that a baby may make. Whether a baby is perceived to be behaving abnormally depends on the level of the observer’s involvement. The reliability of a person’s observations also depends on their background, experience, and how much attention they are paying to the baby. Jhon had some familiarity with babies, but was only 18 years old at the time of this incident. He spent only a limited time with Adriel. After placing him on the mattress, he went out to the balcony. He remained there for the rest of his visit, until he walked through the apartment on his way out.

[886] Jhon testified that Mr. Munoz-Hernandez did not try to feed Adriel that night. Mr. Munoz-Hernandez testified that he prepared a bottle of formula and fed Adriel while Jhon was on the balcony. His evidence that Adriel ate, even though he was “feeling sick,” is problematic. Jhon made no mention of seeing a bottle or of Adriel holding a bottle as he was leaving the apartment.

[887] The medical evidence establishes that the symptoms of a child who has suffered a serious brain injury can vary widely. The symptoms can start out being fairly mild, and then get progressively worse as the swelling or edema worsens over time. The initial symptoms can include fussiness, irritability, or appearing generally unwell. It is possible that someone caring for a baby who has suffered a serious head injury could perceive the baby as unwell, due to a mild illness. That person would not necessarily know that the baby was in need of medical attention.

[888] The medical evidence with respect to these potential symptoms is a piece of circumstantial evidence that tends to support the proposition that Adriel was suffering from a brain injury at the time of Jhon’s visit.

[889] Mr. Munoz-Hernandez was not truthful when he testified that Adriel had a cold – that he had a runny nose and was sneezing. He was not truthful when he testified that Adriel had fallen in the bathroom. The inference may be drawn that Mr. Munoz-Hernandez made up the shower incident and Adriel’s cold symptoms in order to explain why Adriel appeared to be unwell. He had told Jhon that Adriel was feeling sick, which was true – Mr. Munoz-Hernandez was obviously concerned about Adriel, as noted by Jhon. However, Adriel did not have a cold and had not suffered a fall in the bathroom. There was something else that was causing Adriel to be unwell and that was causing Mr. Munoz-Hernandez to be so concerned.

[890] Mr. Munoz-Hernandez was not forthright in giving his evidence in regard to the “jail” comment that he made to Jhon on the balcony. He did not acknowledge having made the comment. I am satisfied that he did make it. For the reasons already stated, I also reject Mr. Munoz-Hernandez’s testimony that if he made the comment, he was referring to Walter and not to himself. The comment is consistent with Mr. Munoz-Hernandez being worried about having done something for which he could be sent to jail. It also lends support to Ms. DaSilva’s testimony that on the morning of September 12, when Mr. Munoz-Hernandez told her to tell the Clara story, he also told her that he was scared to go to jail.

[891] According to Mr. Munoz-Hernandez, Adriel was fine when he put him to bed 30 or 40 minutes after Jhon left. He no longer appeared to be sick. He was not fussy. He was not sleepy, even though it was after midnight, which was a couple of hours past his usual bedtime. Mr. Munoz-Hernandez’s earlier concern that Adriel was sick, which had caused him to prepare the bottles of warm water, had apparently vanished.

[892] Mr. Munoz-Hernandez’s testimony with respect to Adriel’s remarkably quick recovery is not credible. Mr. Munoz-Hernandez was still clearly worried about Adriel, as demonstrated by the fact that he took the trouble to move the playpen into the living room and beside the air mattress so that he could keep a closer eye on him. Mr. Munoz-Hernandez’s evidence that he moved the playpen out of concern that he might not hear Adriel crying, or that he wanted Adriel to keep him company, was not credible.

[893] Mr. Munoz-Hernandez had gone from being perfectly content to leave Adriel alone in the apartment for up to two hours at a time to a point where he was so concerned about him that he wanted him right beside him in order to monitor him. This suggests that something dramatic had happened to Adriel between the time that Arlinton left and Jhon walked into the apartment.

[894] Mr. Munoz-Hernandez’s level of concern about Adriel lends support to Ms. DaSilva’s evidence that he got up twice on the morning of September 12 to check on him, and that it was he who alerted her to Adriel’s serious condition. Ms. DaSilva’s observations when Mr. Munoz-Hernandez first checked on Adriel indicate that the playpen was still in the living room in the morning.

[895] Mr. Munoz-Hernandez’s evidence that he told Ms. DaSilva about the shower incident when she got home is not credible. That fall never happened. I accept Ms. DaSilva’s evidence that Mr. Munoz-Hernandez made no mention of such a fall to her.

[896] Ms. DaSilva testified that Mr. Munoz-Hernandez’s only comment to her was that she had arrived home late. He did not accuse her of being drunk. She was not specifically questioned as to whether he told her that she “smelled like a horse.” According to Mr. Munoz-Hernandez, this insult, his questioning of her as to why she was gone all day, and his asking her to turn out the lights (she denied that she had turned on the lights), caused her to get angry and upset. She grabbed the playpen, moved it into the bedroom, and slammed the door. Assuming that Mr. Munoz-Hernandez’s account of what he said to Ms. DaSilva is accurate, it does not make any sense that she would take out her anger with him on Adriel, who, according to both Mr. Munoz-Hernandez and Ms. DaSilva, was asleep.

[897] Mr. Munoz-Hernandez’s testimony that Ms. DaSilva was balking at getting medical attention for her unconscious son because she did not want to get into trouble over the bruises is problematic. Upon her arrival at the hospital, Ms. DaSilva gave her consent to the medical staff to contact the police. She also spoke to the police at the hospital and at the police station. Her decision to take Adriel specifically to the Hospital for Sick Children, where she felt he would receive the best care, indicates that she was involved and concerned in getting him medical treatment. Ms. DaSilva was completely focused on Adriel during the taxi ride to the hospital.

[898] For the reasons stated earlier, I have found that the common sense inference to be drawn from all of the circumstances is that Mr. Munoz-Hernandez told Ms. DaSilva to tell the police the Clara story. It was Mr. Munoz-Hernandez who had expressed concerns about jail. It was Mr. Munoz-Hernandez who stood to benefit from the telling of the story. Ms. DaSilva told the police the Clara story in order to protect him.

[899] Ms. DaSilva remained at the hospital for nine weeks as Adriel clung to life. She never left the hospital. Eventually, she made the decision to follow medical advice and withdraw food from Adriel. He died shortly thereafter.

[900] While Ms. DaSilva was at the hospital, Mr. Munoz-Hernandez began to plan his escape. He called David, told him that he had a problem, and asked him for money to travel. When David refused, Mr. Munoz-Hernandez had his cousin wire him money. He then stole David’s driver’s licence, and had two friends drive him to Montreal. He remained there for ten months while living under a false name.

[901] Mr. Munoz-Hernandez testified that he only learned of Adriel’s death four or five months after the fact. He explained that he had told his mother in Colombia that he did not want to hear any bad news.

[902] Mr. Munoz-Hernandez’s explanation that he acted out of panic, or fear that he would be treated unfairly or would not be believed because he was from another country, is not credible. Mr. Munoz-Hernandez’s flight is a piece of circumstantial evidence that is consistent with his having caused Adriel’s fatal head injury.

[903] In summary, after a consideration of all of the evidence, I am satisfied that there were no bruises on Adriel when Ms. DaSilva left him in Mr. Munoz-Hernandez’s care.

[904] Mr. Munoz-Hernandez had the opportunity to cause Adriel’s fatal head injury when he was alone with him between 8:24 p.m. and 11:07 p.m. on September 11.

[905] Mr. Munoz-Hernandez demonstrated extreme indifference towards Adriel that day by leaving him alone in the apartment on three separate occasions. His comments to Arlinton indicate intolerance for Adriel’s crying. Adriel was crying on at least one occasion that day. Arlinton heard him crying as he entered the apartment with Mr. Munoz-Hernandez.

[906] Adriel was clearly unwell when Jhon arrived, and was demonstrating some of the early symptoms that may be apparent in a child who has suffered a serious brain injury.

[907] When Jhon noticed the bruises on Adriel’s side, Mr. Munoz-Hernandez lied and told him he had fallen out of bed a few days earlier. He made a comment to Jhon out of the blue about how difficult it would be to be in jail.

[908] Adriel continued to be unwell after Jhon left. Mr. Munoz-Hernandez continued to be concerned about him and moved the playpen into the living room in order to monitor him. Mr. Munoz-Hernandez’s continued concern supports Ms. DaSilva’s evidence that he got up twice to check on Adriel the next morning. The playpen was still in the living room.

[909] Ms. DaSilva had no motive to assault Adriel when she arrived home from the wedding. She had had a good time with family and friends. Unlike Mr. Munoz-Hernandez, she had not been burdened or constrained by any parental responsibilities that day. She had missed Adriel. According to Ashley, she mentioned Adriel many times at the wedding reception and wished she had a way of contacting the accused to see how Adriel was doing. She had no reason to assault Adriel as he was sleeping in the playpen.

[910] Mr. Munoz-Hernandez’s flight to Montreal is consistent with his having harmed Adriel. His behaviour in leaving the province is in stark contrast to that of Ms. DaSilva, who kept a vigil over Adriel at the hospital until Adriel’s death nine weeks later.

[911] Mr. Munoz-Hernandez was very scared about having to face the consequences of his actions, which is why he told Ms. DaSilva to tell the police the Clara story. He did not speak to her after he left the hospital, and had no way of knowing that Ms. DaSilva told the story to the police but then recanted it. He intended to tell her again to tell the story by sending her a message, via his mother, to tell the “truth.” As Crown counsel pointed out, Mr. Munoz-Hernandez could not very well have sent the message: “Tell Ms. DaSilva to tell the police the Clara story.

[912] Mr. Munoz-Hernandez evidence was not credible. I do not believe his evidence that he did not harm Adriel. I have reached this conclusion after considering his testimony in the context of all of the evidence. His evidence does not leave me with a reasonable doubt. The totality of the evidence establishes beyond a reasonable doubt that Mr. Munoz-Hernandez assaulted Adriel on the evening of September 11, causing the extensive bruising, the eye injuries, and the head injury that ultimately led to his death. I am satisfied beyond a reasonable doubt that Ms. DaSilva did not cause those injuries.

SECOND DEGREE MURDER OR MANSLAUGHTER

[913] In terms of the intent required for second degree murder, the Crown relies on s. 229(a)(ii) of the Criminal Code. In order for Mr. Munoz-Hernandez to be convicted of second degree murder, the Crown must establish beyond a reasonable doubt that he meant to cause harm that he knew was likely to cause Adriel’s death and was reckless whether death ensued or not.

[914] It is not sufficient that an accused foresee simply a danger of death. The accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning on the victim: R. v. Cooper (1993), 1993 CanLII 147 (SCC), 78 C.C.C. (3d) 289 at para. 21. In other words, the Crown must establish that Mr. Munoz-Hernandez meant to cause Adriel bodily harm that he knew was so dangerous and serious that he knew it was likely to kill him, and proceeded anyway despite his knowledge of that risk. “Likely” means probably. Therefore, the Crown must show that Mr. Munoz-Hernandez knew the bodily harm he was inflicting on Adriel would probably kill him.

[915] The medical experts did not agree on what type of mechanism caused Adriel’s fatal brain injury. Some were of the view that shaking was the most likely scenario. Others opined that the injuries were probably the result of impact or blunt force trauma. They all agreed that a third possible cause was a combination of shaking and impact.

[916] In terms of the amount of force that was used, Dr. Cory testified that when a head injury proves fatal, the mechanism that caused it most often involves the application of significant force.

[917] Dr. Ali testified that one shake would be insufficient to cause Adriel’s eye injuries, although one act of repetitive shaking could have caused the damage. The force applied would have to be “quite significant.” He would not expect retinoschisis to result from one strike to the head.

[918] Dr. Shroff was of the view that Adriel’s injuries were most likely caused by impact. He testified, however, that regardless of the mechanism, the force used would have to have been significant.

[919] Dr. Taylor testified that the injuries were probably as a result of shaking and that it was very unlikely that they were caused by impact. He described the brain injury as representing “significant trauma that required significant force.”

[920] Dr. Kepron testified that it was “very unlikely” that the subdural hemorrhage caused all of the brain injury. She opined that the most likely cause of the injuries was blunt force trauma. Whether the cause was impact, shaking, or a combination of impact and shaking, the force used would have been significant. A “very significant impact” would be required to cause the primary brain injury.

[921] Dr. Ramsay testified that shaking usually causes rather small bilateral subdural hemorrhages, as opposed to the large, unilateral subdural hemorrhage that Adriel sustained. He agreed, however, that shaking was a possible mechanism, as well as impact or a combination of shaking and impact. If the traumatic event caused both the subdural hemorrhage and the primary brain injury, the force involved would be “substantially concerning” to a caregiver. There is the possibility that the subdural hemorrhage caused all the other injuries, although that conclusion would be controversial.

[922] Dr. Ramsay testified that it is not known with any certainty what or how much force is required to cause injury from shaking. He explained: “We don’t know what forces are involved, although we always imagine an infant being shaken with great violence, but we have no recorded event or videotape of the violent shaking and the pathology of the result of that violent shaking.”

[923] The force that caused Adriel’s fatal brain injury may have been “significant” but, as counsel for Mr. Munoz-Hernandez submits, it is not entirely clear what that means. For example, was the force more, or was it less, than the force that caused the bruising? “Significant” force may have one meaning if impact was the cause of the injuries. However, it is less clear, or somewhat uncertain, based on Dr. Ramsay’s evidence, as to what force would have been necessary to cause the injuries from shaking. There is also no evidence as to how many times Adriel may have been shaken (if he was shaken), other than Dr. Ali’s testimony that more than one shake was required to cause the eye injuries.

[924] In considering whether the Crown has established the requisite mens rea for second degree murder, I also take into account the fact that Mr. Munoz-Hernandez was only 21 years old at the time and had virtually no experience in caring for babies. The force that was applied (by whatever mechanism) that caused the fatal injury, may have been “substantially concerning” to an experienced caregiver, but may not have been perceived as such by Mr. Munoz-Hernandez, or recognized by him to be so dangerous and serious that it was likely to kill Adriel.

[925] Mr. Munoz-Hernandez demonstrated concern about Adriel following the assault. He realized that the baby was unwell and attempted to address the situation by placing warm water bottles beside him. He moved the playpen into the living room so that he could monitor him more closely. He got up and checked on him in the morning on two occasions. On the second occasion, when he discovered Adriel was unconscious, he woke up Ms. DaSilva and told her that they had to get him to a doctor. Mr. Munoz-Hernandez accompanied Ms. DaSilva to the hospital.

[926] I agree with Crown counsel that these actions are consistent with Mr. Munoz-Hernandez feeling regret about what he had done. However, in my view, they are also consistent with Mr. Munoz-Hernandez not knowing or realizing at the time of the assault that the bodily harm he was inflicting on Adriel would probably kill him.

[927] Having considered all of the evidence and the submissions of counsel, I am not satisfied that the Crown has established beyond a reasonable doubt the requisite mens rea for second degree murder.

CONCLUSION

[928] For the reasons given, Mr. Munoz-Hernandez is found not guilty of second degree murder but guilty of the lesser and included offence of manslaughter.

“Garton J.”

GARTON J.

Released: January 14, 2015

CITATION: R. v. Munoz-Hernandez, 2015 ONSC 243

COURT FILE NO.: 028/12

DATE: 2015/01/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

RONNY MUNOZ-HERNANDEZ

REASONS FOR judgment

GARTON J.

Released: January 14, 2015