ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015 07 31

BETWEEN:

HER MAJESTY THE QUEEN

Andrea Esson and Jill Prenger for Her Majesty the Queen

• and -

NANDINI JHA

Dirk Derstine and Sharon Jeethan, Counsel for Ms. Jha

HEARD: June 18, 2015

REASONS FOR SENTENCE

PUBLICATION BAN

An order has been made prohibiting the publication of the names of any surviving children of Nandini and Saroj Jha in any publication related to this criminal case.

Baltman J.

Overview

[1] In September 2011 three year old Niyati Jha sustained a massive brain injury as a result of a blunt force trauma to her skull. She was admitted to the Sick Children’s Hospital in Toronto in a coma and died shortly thereafter. In addition to the fatal injuries she suffered, her body was riddled with dozens of internal and external injuries that included bruising, hemorrhaging and multiple skull fractures.

[2] Her mother, Nandini Jha, was charged with second degree murder. The Crown alleged that over many weeks or months she beat her daughter, culminating in a final fatal attack.

[3] The matter proceeded before a jury. Following a seven week trial the jury convicted Mrs. Jha of manslaughter. She is now before me for sentencing.

The Facts

[4] The Criminal Code contains three guiding principles for when judges are imposing a sentence following a conviction by a jury. First, the sentencing judge must accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty: s. 724(2)(a). Second, the judge may find any other relevant fact that was disclosed by the evidence at trial to be proven: s. 724(2)(b). Third, if any of the relevant facts in dispute are aggravating in nature, the judge must be persuaded of them beyond a reasonable doubt: s. 724(3)(e).

[5] Applying these principles, the following are the relevant facts essential to the jury’s verdict. To the extent any of the facts are aggravating in nature, in finding them as facts I have kept in mind the applicable standard of proof beyond a reasonable doubt.

a) Circumstances of the Offence

[6] The Jha family moved to Canada from India in 2010. Mr. Jha worked full time and Mrs. Jha, the offender, managed the house and looked after the children. Niyati’s older sister, S.J., was attending school full time by the time of this incident. Niyati was in kindergarten.

[7] On the morning of Tuesday, September 20, 2011 Mr. Jha left for work at approximately 8:00 a.m. Before departing he saw Niyati; she was awake and appeared normal, although she had been kept home from school because of a cold. Just before noon the offender telephoned Mr. Jha at work and told him she could not wake Niyati. Mr. Jha came home and found Niyati asleep. He could not rouse her and so they took her to a walk-in clinic. It was quickly apparent to the attending physician that she was unconscious and suffering from a serious head injury. She was rushed by ambulance to Trillium Hospital in Mississauga and later transferred to Sick Children’s Hospital in Toronto. She was declared brain dead the next day, two days shy of her 4th birthday.

[8] When questioned by first responders and attending physicians as to what had preceded Niyati’s collapse, the offender had no explanation other than to refer to a bookcase that allegedly fell on Niyati one month earlier, on August 17th. On that occasion, when Mr. Jha arrived home from work, the offender told him that earlier that day Niyati had pulled a bookcase down over herself as she was attempting to climb it. Niyati was asleep by then, but when he saw her the next morning one side of her face was black and blue. Although she was behaving normally and did not complain of pain, he and his wife took her to a walk-in clinic. The attending physician did not observe anything alarming. According to Mr. and Mrs. Jha, on that evening and in the days immediately after, Niyati behaved normally and did not complain of pain.

[9] There was also extensive medical evidence at trial regarding prior injuries sustained by Niyati. Those injuries fell into three categories:

a) Older, healing skull fractures, which occurred within “a number of weeks to a small number of months” before the penultimate skull fracture that precipitated Niyati’s death; this would include the alleged bookcase incident referred to above;

b) Healing fractures on Niyati’s back, namely the 11th lumbar vertebrae and the 2nd thoracic vertebrae, estimated to be several weeks old;

c) Multiple bruises of varying ages, including head abrasions, scars, and bruising on various body parts (upper arms, thighs and under the skin of her back).

[10] At trial Crown and Defence agreed that for the jury to convict the accused of murder or manslaughter they must first find that she caused Niyati’s death by assaulting her on September 20th. The jury was so instructed, along with the direction that if they also found the accused had the intent for second degree murder, they should convict of murder.

[11] The jury was further told that the evidence of the prior injuries could, depending on their viewpoint, allow them to infer that the accused had a specific propensity to physically abuse Niyati and had been doing so for months if not years preceding her death. Such evidence was relevant both to whether the accused inflicted the final injury to Niyati and, if so, with what state of mind.

[12] It is apparent from the jury’s verdict that while they were not satisfied beyond a reasonable doubt that the offender had the necessary intent for murder, they at least concluded that she caused Niyati’s death by assaulting her on September 20th. In so doing they rejected the offender’s evidence that the fatal event was an accident.

[13] What is not evident from the jury’s verdict is to what extent, if any, they found that the offender caused any of the prior injuries to Niyati; that the jury rejected the offender’s evidence about Niyati’s last day does not mean they rejected her evidence about earlier incidents. Crown and Defence agree that if the offender caused any of the prior injuries, those are clearly aggravating factors relevant to sentencing. It therefore falls on me to make those findings.

[14] Those findings depend to a significant extent on the medical evidence. The following is a summary.

b) Medical Evidence

[15] On September 23, 2011, pathologist Dr. Charis Kepron performed an autopsy on behalf of the Ontario Forensic Pathology Service. She reported that Niyati died of a blunt impact head injury, superimposed on healing skull fractures and multiple other injuries of varying ages. Dr. Kepron found that Niyati had both recent skull fractures and older, healing skull fractures which extended nearly all the way around her head. The fractures to the frontal bone and to the skull base were recent, i.e. had occurred within hours of Niyati’s death, and were not superimposed on older healing fractures. All the other recent skull fractures were re-fractures, that is new fractures on top of healing ones.

[16] Dr. Kepron concluded that Niyati’s head injuries were caused by the application of blunt force. Since there were recent and healing fractures, and recent and older bleeding on the surface of the brain, there must have been at least two episodes of head injury. There may have been more than two. Dr. Kepron also concluded that the older fractures occurred within weeks or a small number of months of Niyati’s death.

[17] Dr. Kepron testified that significant force would have been required for both the old and new fractures, and that they are not injuries typically seen in 4 year old children. The older fractures wrapped all the way around her head and branched into multiple skull bones.

[18] Dr. Kepron also identified many other bruises, scars and fractures on Niyati’s body. In particular she noted both recent and healing multiple bruising on the upper arms and thighs, and healing fractures of the 11th rib and the 2nd thoracic vertebrae, all of which were uncommon injuries in a young child.

[19] Dr. Kepron testified that all of the injuries on Niyati’s head and body were blunt force injuries, that is caused by the application of blunt force. She agreed that any one of them could have been caused by a fall or an accidental impact. In her opinion, however, the number, pattern, and location of the injuries raised concern for inflicted injury, that is trauma at the hands of another person.

[20] Dr. Kepron also testified that because the skull had been compromised already by the earlier fractures it was difficult to say what level of force was applied to Niyati’s head immediately before she collapsed; nonetheless, it was significant.

[21] Dr. Emma Cory, a pediatrician at the Suspected Child Abuse and Neglect Unit at Sick Children’s Hospital in Toronto, testified that when Niyati arrived at that hospital it was immediately apparent that she had suffered a severe brain injury. She had sustained extensive swelling of her brain to the point that it was pushing down through the base of her skull and protruding out her left ear.

[22] Dr. Cory testified that a complex skull fracture is a very uncommon injury in a child Niyati’s age, except in cases of high velocity injury such as high speed car accidents or falls from several stories. She testified that it is extremely rare to see a complex skull fracture or a severe brain injury caused by a simple fall.

[23] Dr. Cory allowed that the earlier skull fractures would have weakened the skull so that less force would have been required to fracture it the last time. She testified, however, that very significant force would have been required to cause the severe brain injuries that killed Niyati. She stated that this kind of injury was “really really unusual” for most 4 year olds.

[24] Dr. Cory testified that Niyati had more bruises than a typical, mobile 4 year old, and that some of them were on her abdomen, upper arms, and the cushioned part of her thigh, unusual locations that raise concern for inflicted injury. She stated that the bruising arose from multiple applications of force in different areas. She explained that while individually they could arise by accident, their multitude was unusual for typical accidental injuries in children of Niyati’s age.

[25] Dr. Cory concluded that the multitude of injuries seen in Niyati, their different locations, and the presence of both recent and healing injuries raised concern for intentional injury. She received no accidental explanation that could account for the totality of the findings.

[26] In sum, both Dr. Kepron and Dr. Cory agreed that the totality of Niyati’s injuries was very unusual in a 4 year old child, and the presence of multiple injuries of varying ages raised suspicion for inflicted trauma.

[27] The third medical expert who testified was Dr. David Ramsay, a neuropathologist. He concluded that Niyati had suffered both a recent head and brain injury and at least one older head and brain injury. He testified that the older injuries may have been caused by one or more impacts, on one or more occasions, and that the recent fatal head injuries could also have been caused by one or more impacts, separated by a few minutes.

[28] Dr. Ramsay testified that “significant and substantial force” would have been required to cause the older head injuries. That force would have been recognized as potentially harmful to Niyati by anyone observing it. He thought it strange that a child could sustain fractures of this severity and not require hospital care.

[29] Critically for this trial, it was virtually unchallenged that the accused had exclusive opportunity to inflict the injuries sustained by Niyati. She was Niyati’s primary caregiver and no other person was ever alone with Niyati. This applies as well to the fatal injuries sustained on September 20th; Niyati was in the sole company of her mother that morning and there was no evidence of any mishap or accident to explain Niyati’s collapse that morning.

c) My Findings of Fact

[30] I shall first deal with the alleged bookcase incident. For the following reasons I reject entirely the offender’s evidence about this matter.

[31] First, it is physically improbable that the bookcase could have been pulled down from the location where it was found shortly after Niyati’s death, as there was an electrical panel protruding from the wall that would have stopped its fall. This was made clear by the evidence of John Mustard, a mechanical engineer who examined the bookcase and measured its potential movements.

[32] Second, even if I accept Mrs. Jha’s evidence that when the bookcase fell on Niyati it was positioned a few feet further away from the panel, and therefore could have fallen over, Mrs. Jha’s evidence about Niyati being hit by the bookcase was internally inconsistent, inconsistent with her husband’s evidence, and inconsistent with the medical evidence.

• In her examination in chief, Mrs. Jha said she stood the bookcase up herself. In cross-examination, she suggested it was her husband who moved it back, and gave different versions about when that occurred;

• Mr. Jha, however, was very clear in his evidence that he never saw the bookcase in any position other than upright; aside from what his wife told him, he has no reason to believe it ever fell over;

• Doctors Kepron and Cory testified that it was “unlikely” or “hard to imagine” how a falling bookcase could have caused the fractures all the way around Niyati’s head. Dr. Cory testified that Niyati’s older complex skull fractures could have been caused by her head being crushed between the bookcase and a hard surface. According to Mrs. Jha, however, when the bookcase supposedly fell down Niyati’s head was on the bed, not on a hard surface.

[33] For those reasons I reject the offender’s evidence that some or all of Niyati’s serious injuries resulted from a falling bookcase. I find the “bookcase injury” resulted from a deliberate assault by the offender; the “falling bookcase” was a fiction she concocted to explain the bruises caused by her beating Niyati.

[34] I am also satisfied beyond a reasonable doubt that in the weeks or few months preceding Niyati’s death, Mrs. Jha hit her hard enough to cause the following older, serious, non-fatal injuries:

1. Skull fractures extending all the way around Niyati’s head;

2. Bleeding in the sheaths around Niyati’s optic nerve, both left and right;

3. Bleeding on the left side of her scalp;

4. Bleeding in the front of her brain;

5. A fracture of her 11th rib; and

6. A fracture of the second thoracic vertebra.

[35] A summary of the evidence in support of that conclusion is set out below, reproduced in large part from the Crown’s written submissions on sentencing:

• The upstairs neighbours, Mr. and Mrs. Gogia, testified that Niyati told them, in January or February of 2011, that her mother hit her. On another occasion, between January and June 2011, Mrs. Gogia overheard Niyati saying to her mother “I’ll be a good girl, I will listen to you…but you won’t hit me, right?”;

I found the Gogias to be credible witnesses. Tragically, despite Mrs. Gogia’s efforts to involve the authorities, Niyati fell through the proverbial “cracks in the system”. The full reasons for that outcome were beyond the scope of this trial;

• Doctors Kepron and Cory testified – and ordinary human experience tells us - that toddlers do not suffer these kinds of injuries in typical childhood activities, particularly given their severity, frequency and pattern;

• Many of Niyati’s serious non-fatal injuries are of different ages, or different types, but in essentially the same locations, or they are mirror images of each other.[^1] It is highly unlikely that Niyati repeatedly and accidentally fell and injured the same locations;

• Doctors Kepron and Cory testified that complex skull fractures are very uncommon in childhood except in cases of high speed car accidents or falls from multiple stories. No such event occurred here;

• Niyati was never left alone. Her parents were her only caregivers until September 2011, when she briefly went to school. Neither parent testified about any event that might have caused Niyati’s serious non-fatal injuries. Although there was evidence of various falls or mishaps over the years – including falling down stairs, jumping off playground equipment, etc. - Niyati’s parents testified that she showed no sign of serious injury following any of those events, and they sought no medical attention;

• Both Dr. Kepron and Dr. Ramsay testified that very significant force would have been required to cause the older skull fractures and the older bleeding in Niyati’s brain. This finding is consistent with the jury’s manslaughter verdict; they may have concluded they could not be satisfied that Mrs. Jha knew, when she hit Niyati in the head the last time, that she was likely to kill her, because on at least one previous occasion she hit her in the head very hard without killing her;

• Mrs. Jha’s evidence that Niyati was naughty and clumsy, and regularly fell or jumped off surfaces, was contradicted by virtually all the other testimony at trial – from Mr. Jha, other relatives, neighbours and her teacher. They described Niyati as well behaved and co-operative, albeit slightly more active than the average child.

[36] For all those reasons, I am satisfied beyond a reasonable doubt that Mrs. Jha caused Niyati’s serious non-fatal injuries. While I cannot, on the evidence, specify how many such incidents occurred, I am satisfied there were several, at least one of which resulted in a very serious head injury. Simply put, over a period of weeks or months the offender hit Niyati often and hard, causing immense damage. This was a systematic course of violence that culminated in a final fatal beating.

Circumstances of the Offender

[37] Mrs. Jha is now 38 years old. She has no criminal record. She was born and raised in Ghoghardiha, a small village in the province of Bihar, India. She grew up in a close and loving family. She completed Grade 10 at school, learning various home sciences like sewing and cooking.

[38] Mrs. Jha grew up in a culture where women do not go out of the house unaccompanied by a man. She got married at age 26 to a man she had never met and who was chosen by her mother and brothers. However, she claims to be happy with him.

[39] Niyati was born in India, on September 24, 2007. She, along with her older sister (S.J.), lived with their parents in India until 2010. The four of them shared a home in Delhi with her in-laws.

[40] In August of 2010 Saroj moved to Canada as a permanent resident. Mrs. Jha and the children joined him here in December 2010. She is not a Canadian citizen.

[41] Mrs. Jha did not want to come to Canada, as her entire family is in India. They came here because her husband believed their children would have a better life here, and she felt she had no choice but to obey him. She knows little English and therefore had great difficulty making new friends. In addition, she felt isolated at home with only the children for company while her husband worked long hours.

[42] Here in Canada it became her role to look after the children and do all the house chores while Saroj was out working. She claims that Niyati demanded a great deal of her attention as she was very mischievous and got hurt constantly while playing.

[43] Her oldest daughter, S.J., is now 10 years old. When Niyati died Mrs. Jha was three months pregnant with another daughter, who is now 3 years old. Shortly after that birth Mrs. Jha became pregnant with her fourth child, a son who is now two years of age. All three children now live in Calgary with Mr. Jha, who has found employment there. His mother (the children’s grandmother) also lives with them, and looks after the children and the home.

[44] Mrs. Jha continues to have the support of her husband, who wants her to be re-united with him and their children. She is also well loved and highly regarded by numerous family members, virtually all of whom live in India. Many of them wrote letters in her support, attesting to her devotion as a daughter, sister and mother. However, the vast majority of these letters expressly reject the jury’s verdict, repeatedly stating that she could never have killed her own child. The authors are therefore in denial of the facts, and can add little perspective to this process.

Legal Framework for Sentencing

[45] The Crown seeks a penitentiary sentence of 15 years; the defence argues five is sufficient.

[46] A review of the jurisprudence that has emerged on child abuse cases reveals certain common principles:

I. Serious crimes of violence against defenseless children warrant a strong response from the courts, particularly where this results in the child’s death;

II. Denunciation and deterrence are the paramount sentencing considerations: R. v. S.E.C., 2003 BCCA 421;

III. Evidence of a pattern of abuse that was deliberate and protracted is an aggravating factor;

IV. Offenders who were themselves victims of abuse or who suffer from mental illness may have limited abilities to cope as a parent: R. v. Alexander, 2014 ONCA 22;

V. A guilty plea, particularly at an early stage and where accompanied by sincere remorse, is a significant mitigating feature.

[47] Cases submitted by the Crown where offenders were found guilty of manslaughter against a child resulted in sentences ranging from 6 to 14 years, depending on a range of circumstances, including the nature of the attack; whether there were prior acts of abuse; the presence of a guilty plea with remorse, and the offender’s personal circumstances: R. v. Alexander, 2014 ONCA 22, aff’g 2011 ONSC 6839; and others.

[48] The cases offered by the Defence ranged from 3 to 7 years: R. v. K.K.L., 1995 ABCA 196; R. v. Dyke, 2003 NLSCTD 25; R. v. Mendieta, 2011 ONSC 1411. However, many of them concerned a single act of violence, rather than the pattern of brutality seen here.

[49] In addition to guidance derived from the case law, there are statutory directives that underscore the grave nature of this offence. Section 718.01 of the Criminal Code stipulates that when a court imposes a sentence for an offence that involved the abuse of a person under eighteen years, it “shall” give primary consideration to the objectives of denunciation and deterrence. Further, under s. 718.2(a)(iii), a sentence “should” be increased where the offender abused a position of trust or authority in relation to the victim.

Analysis

[50] It is very difficult to understand this crime. Mrs. Jha was not a young mother who was inexperienced at parenting. She does not allege she was a victim of abuse who came to repeat that behaviour. Nor is there evidence of addiction or low intellectual ability.

[51] Neither party found any precedent of a mature, seemingly stable adult who abused her child over a lengthy period of time, resulting in death. Most of the cases in the jurisprudence involve immature parents who lack life skills, or suffer from addiction or mental health issues.

[52] We know Mrs. Jha had been transplanted, largely against her will, to a country where she had no family or friends and could not speak the language. And we know too that she felt burdened by the responsibility of raising two children virtually on her own, while her husband worked long hours.

[53] But many immigrants overcome those obstacles for the sake of making a better life in Canada for their children. It is deeply ironic that while the Jhas moved to Canada to improve their children’s lives, that displacement might have brought Mrs. Jha to kill her daughter.

[54] The aggravating factors here are numerous.

[55] First, Niyati was a young and helpless child. Not even four years old, she was powerless to defend herself or get someone else to help her. The one effort she made to get help – through the insightful and caring neighbours upstairs – was to no avail. She was utterly vulnerable.

[56] Second, Niyati was killed by her own mother. This crime was a betrayal of the most sacred bond of trust and care that should exist between a parent and a child.

[57] That left the offender as Niyati’s sole protector. Instead of defending her, she beat her repeatedly, ultimately to death.

[58] Third, the fatal act here was not a mild blow of unintended force, but a significant attack that resulted in a severe brain injury; by the time Niyati arrived at the hospital her head had swollen to the size of a football and there was brain matter oozing out of her ear.

[59] Fourth, the abuse in this case was not confined to the one act that caused Niyati’s death; it was prolonged over months, if not years, and involved numerous serious assaults.

[60] In addition to all her physical pain, throughout all this time Niyati must have felt terribly lonely and abandoned.

[61] Even now, not one family member appears to sincerely mourn her death. The offender did not express remorse for the loss of her daughter.

[62] As for mitigating factors, other than the absence of a criminal record and family support, there are none.

[63] I recognize that as a consequence of this crime the offender is no longer allowed unsupervised contact with her other children.

[64] While not a mitigating factor in the traditional sense, this sentence will also result in significant immigration consequences to Mrs. Jha. She is not a citizen of Canada. Having been convicted of a crime with a maximum term of at least ten years, she is inadmissible under s. 36 of the Immigration and Refugee Protection Act.

[65] This leads to consideration of what Doherty J.A. addressed in R. v. Hamilton and Mason.

[66] In my view, considering a) the violent nature of this killing; b) the preceding history of abuse; c) the need to reflect the public’s revulsion for such brutality against an innocent child, and d) the offender’s personal circumstances, a sentence of ten years is fit. Crown and Defence agree she should receive a credit of seven months for pre-trial custody. I see no justification for a further reduction based on her bail terms beyond the three months agreed to by the Crown.

[67] After factoring in the combined credit of 10 months (7 for pre-trial custody and 3 for bail terms), she is left with nine years and 2 months remaining in her sentence.

[68] In addition, there will be an order under s. 109 of the Code prohibiting the offender from possessing firearms, ammunition, or any other explosive substance for life, along with a DNA order.

[69] My final comment is to express my heartfelt thanks to the jury in this case. This was a painful and difficult trial, but all twelve jurors approached their task with great courage and dedication.

Baltman J.

Released: July 31, 2015

[^1]: For example: (1) older and recent optic nerve sheath haemorrhages on both left and right; (2) older and recent skull fractures; (3) bleeding under the muscles of the chest, on both sides, in essentially the same locations where bruises were found on the outside; (4) three scars in the centre of Niyati’s back, near the fracture to her right rib and on top of the subcutaneous haemorrhage in her back; (5) clusters of bruises in unusual locations, such as the inner surface of the left thigh and the back of the left forearm; and (6) a scar, an abrasion and a bruise all in the same area of the forehead.