CITATION: R. v. Luckese, 2016 ONSC 1206
COURT FILE NO.: CRIMJ(P) 632/13
DATE: 2016 03 14
CORRECTED DATE: 2016 03 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kelly Slate and Amber Lepchuk, for the Respondent
Respondent
- and -
APRIL LUCKESE
Stephen Whitzman, for the Applicant
Applicant
HEARD: November 25, 26, 27, 30 and December 1, 4, 9 and 10, 2015
CORRECTED REASONS FOR JUDGMENT
Lemon J.
CORRECTED NOTICE - Paragraph 161, Line 1 of the original judgment has been corrected on March 16, 2016 to read: I am satisfied beyond a reasonable doubt that Ms. Luckese failed to perform her duty to provide the necessaries of life to Duy-An which was a significant cause of her death. Ms. Luckese is guilty of manslaughter on that basis as well.
The Issue
[1] Ms. Luckese is charged with manslaughter in the death of a 14-month-old child at her day care.
Background
[2] At the time of the incident, Ms. Luckese had been offering day care services for over 15 years.
[3] In December 2010, An Nguyen and Loc Nguyen were searching to find day care for their 14-month-old daughter, Duy-An. Ms. Nguyen was returning to work in January of 2011, and their earlier child care arrangements had fallen through on short notice. Ms. Nguyen researched day care facilities in the area and found Ms. Luckese’s day care. Mr. and Mrs. Nguyen interviewed Ms. Luckese and attended at the day care residence. They were satisfied with Ms. Luckese and her facilities and signed a contract with her that day. January 4, 2011 was to be Duy-An’s first day with Ms. Luckese.
[4] Mr. Nguyen dropped Duy-An off on the 4th. She was described as crying all of that day. The evidence at trial confirmed that such behaviour was normal for a young child on the first day at a new residence. All agreed that it was likely more so in Duy-An’s case because she had not been out of the presence of her parents (except for perhaps approximately one hour) and she primarily responded to the Vietnamese language, which Ms. Luckese did not speak.
[5] At the end of the day, Duy-An returned to her parents and had a normal and uneventful evening. Her father dropped off Duy-An to day care again on January 5 at 10:30 a.m.
[6] The Defence acknowledged that whatever occurred to Duy-An, occurred that day. As counsel said, “It’s not the position of the Defence that the injuries to Duy-An were caused by an event prior to her arrival at the day care that day, that or a condition”.
[7] The parents of other children being cared for by Ms. Luckese began to arrive to pick up their children shortly after 4:00 p.m. on the 5th. By that time, Duy-An was described as unresponsive and limp. What occurred between 10:30 a.m. and 4:00 p.m., is the subject of this trial; I will deal with that in greater detail below.
[8] A 911 call was made at approximately 4:23 p.m. and the ambulance arrived at approximately 4:25 p.m. Duy-An was taken first to Trillium Hospital and then to Sick Kids Hospital in Toronto. The details of her medical care follow. Despite that medical care, Duy-An died at 12:05 a.m., on January 7, 2011.
Crown Theory
[9] It is the Crown’s theory that Ms. Luckese committed culpable homicide by causing the death of Duy-An by means of an unlawful act. (See s. 222(5)(a) of the Criminal Code of Canada, R.S.C., 1985, c.C-46 (Criminal Code).
[10] The Crown submits that, on the evidence provided at trial, Ms. Luckese either committed aggravated assault (See s. 268(1) of the Criminal Code of Canada) or failed to provide necessaries of life for the child. (See s. 215(1) of the Criminal Code of Canada) The Crown submits that either one, or both of these combined, make out the basis for a conviction for manslaughter.
Medical Evidence
[11] Drs. Hosanna Au, Abhaya Kulkarni and Michael Pollanen all testified for the Crown. Their qualification to provide expert opinion evidence was not disputed. All gave helpful evidence for both the Crown and the Defence. The cross-examination was helpful to clarify and add to the doctors’ evidence but did not attempt to seriously attack their evidence or their qualification; I therefore rely heavily on this evidence.
Dr. Abhaya Kulkarni
[12] Dr. Kulkarni is a paediatric neurosurgeon at the Hospital for Sick Children in Toronto. On consent, he was qualified to give opinion evidence as an expert in paediatric neurosurgery.
[13] On January 5, 2011, Dr. Kulkarni was the neurosurgeon on call at the hospital. That day, he was alerted that Duy-An was being transferred from Trillium Hospital with what sounded like a very significant head injury.
[14] He said that he recognized that she had to be taken urgently to the operating room. The most significant feature of Duy-An’s examination was that her pupils did not respond to light; that indicated a severe head injury. She also had no response to painful stimuli. That too indicated that there was a very severe injury process ongoing.
[15] A CT scan had been done at Trillium hospital. The CT scan indicated that Duy-An had a very large subdural haematoma on the left side of her head. A subdural haematoma is an accumulation of blood over the surface of the brain between the brain and the skull. As a result of the haematoma, the rest of the brain was being pushed and deformed. The CT scan also indicated an ischemic process, or a deprivation of oxygen to the brain.
[16] The plan was to carry out urgent surgery to try to relieve some of the pressure in the brain by removing a large portion of the left side of her skull. That surgery allowed access to the intracranial contents. When Dr. Kulkarni removed a portion of the skull, he found that the pressure within the cranium was very high. He next opened the dura, to allow for the release of this haematoma. As a result of the opening, the brain started to swell up through the wound. The swelling indicated that, while the haematoma was causing some pressure, it had led to secondary events that resulted in the brain itself swelling and adding to the pressure. The brain swelling also indicated that there was ischemia, meaning that the brain had been deprived of blood and oxygen for a period of time.
[17] He then put a pressure monitor and a drain into the brain. He then closed the scalp but left off the part of the skull that had been removed to avoid further pressure.
[18] Over the course of that next day, Duy-An did not show any significant improvement, and in fact continued to worsen. The ICU physicians, in discussions with Duy-An’s parents, decided to withdraw care. When she was extubated, she made no respiratory efforts. This indicated a complete loss of brainstem function. Duy-An passed away at 12:05 a.m. on January 7, 2011.
Dr. Hosanna Au
[19] On consent, Dr. Hosanna Au was qualified to give opinion evidence as an expert in paediatric medicine in the assessment of childhood injuries, particularly brain injuries.
[20] She became involved with Duy-An on January 6, 2011 after Dr. Kulkarni had completed his surgery. She collected information from Dr. Kulkarni and the parents as well as the medical chart. When she first observed Duy-An, a ventilator controlled her breathing and she was not responsive. Duy-An died shortly after her examination. While her treatment of the child ended, her involvement continued to allow her to render her opinions here.
[21] Her pathology report, described below, stated that there was a two and a half centimetre fracture of the skull at the back of the head. Dr. Au testified that skull fractures result from impact to the head; either the head hits something hard or something hard hits the head. This could occur from a variety of different causes. The fracture here could be caused by an accidental fall or inflicted trauma to the head. Duy-An did not appear to have an underlying bone abnormality that would have predisposed her to easy fracturing.
[22] Alone, and without any other complications or injuries, a skull fracture in a child would cause a variety of symptoms. At the time of the injury, the child would be crying in pain. After some time, the child may be consolable, but may be cranky or irritable for a period of time. After that, the child might appear well, happy and playful. However, she may then develop swelling of the scalp which might look like a goose egg. If one touched that area of the scalp, that would cause the child to be irritable and uncomfortable.
[23] Dr. Au also found that Duy-An had a subdural haemorrhage. A subdural haemorrhage can be caused by a variety of problems including underlying medical disorders such as a bleeding disorder. There are some genetic conditions that can predispose one to a subdural haemorrhage. Dr. Au’s laboratory investigations did not find any such underlying medical disorder. Subdural haemorrhage can also be caused by birth trauma, although this was not likely in Duy-An’s case given that she was 14 months of age. It is to be remembered that the defence denied any such condition or cause.
[24] A constellation of symptoms would evolve over time from a subdural haemorrhage. The symptoms could be quite variable from crying, irritability, vomiting, lethargy, to the extremes of seizures, coma and death.
[25] The symptoms related to subdural haemorrhage may have been caused by a multiple of factors. The injury to the brain may have resulted from the impact itself. The injury to the brain may have resulted from a lack of oxygen delivered to the brain or lack of blood flow to the brain, adjacent blood causing irritation to the cells of the brain, or high pressure in the presence of a subdural haemorrhage in a confined space of the skull. However, all of those factors together contribute to cerebral edema, or swelling of the brain.
[26] Dr. Au also found retinal haemorrhages, which refers to bleeding in the lining at the back of eyeball. Retinal haemorrhages can have several different causes, one being an underlying bleeding disorder. She found no such underlying disorders in Duy-An and the defence raises none.
[27] Retinal haemorrhages can also be caused by different kinds of trauma. This could include birth trauma, again not relevant for Duy-An given her age. Retinal haemorrhages can occur as a result of direct eye trauma but Duy-An did not have any signs of trauma to the eye. Additionally, retinal haemorrhages can be caused by inflicted head trauma or a significant impact to the head. In Dr. Au’s opinion, in Duy-An’s case, the most likely cause of the retinal haemorrhages was inflicted trauma.
[28] To Dr. Au, “accidental trauma” meant a trauma to the head as a result of an injury that a child sustained on his or her own. For example, at 14 months of age, Duy-An was probably walking but probably not very steadily; she could have walked, slipped and fallen. Although it is rare for a subdural haemorrhage to result from such an accidental toddler fall, it can occur. Her opinion was that, at Duy-An’s age, it would be a rare event for a subdural haemorrhage to result from such a fall.
[29] To Dr. Au, “inflicted trauma” meant that the subdural haemorrhage was caused by external impact that was not accidental or caused by Duy-An on her own.
[30] In summary, at the age of 14 months, the finding of the skull fracture, subdural haemorrhage and significant brain edema as well as the retinal haemorrhages were indicative of traumatic head injury resulting from an impact to the head. It would be a rare event for these findings to result from a typical accidental household fall.
[31] Dr. Au’s opinion was that it would take a significant impact to the head to cause these injuries. She would expect a caregiver to note an impact of such a force.
[32] In her opinion, the symptoms would have occurred directly after the impact. In situations where the symptoms are significant in a child, the most likely scenario is that the injury leading to those symptoms would occur immediately prior to the onset of symptoms. The visible symptoms would primarily be related to the cerebral edema including irritability, crying, lethargy, vomiting, seizures, coma, or death.
Dr. Michael Pollanen
[33] On consent, Dr. Michael Pollanen was qualified to give opinion evidence as an expert in forensic pathology and paediatric head injuries. He conducted the post-mortem examination of Duy-An on January 7, 2011. His evidence covered all of what he observed during the autopsy. The relevant parts of his evidence, for my purposes, were as follows.
[34] He found that the skull had been recently fractured. That fracture was unrelated to the surgery conducted by Dr. Kulkarni.
[35] The object that her head hit (or hit her head) would be flat or broad, firm and unyielding.
[36] The brain was severely damaged by lack of oxygen.
[37] There was bleeding on the optic nerve which was a finding consistent with head injured children.
[38] There was also bleeding inside the eyes. Such retinal haemorrhages can be a consequence of shaking. However, the literature would suggest that it is often not entirely clear that a haemorrhage in the retina is solely explained by shaking. In many shaking cases, there was also an impact to the head. Accordingly, retinal haemorrhages may not be solely related to shaking but can also be as a consequence of an impact to the head.
[39] Further, retinal haemorrhages may also be apparent when there is swelling of the brain. But the haemorrhages as a consequence of swelling of the brain and raised pressure inside the head, tend to be less numerous and less extensive than in this case.
[40] It was therefore his opinion that these retinal haemorrhages can be explained by an impact to the head. And since it was apparent that there was an impact to the head, these haemorrhages may be a consequence of that impact. However, he would not discount the alternate interpretation that they could have come from shaking.
[41] His opinion was that the cause of death was blunt impact head trauma. The cause of death was hypoxic encephalopathy due to acute left subdural haematoma. He opined that the subdural haematoma was due to the blunt impact head trauma. In brief, he was of the view that there was an impact on the left side of the back of the head. That impact caused bleeding inside the head. All the things that go along with that including raised pressure inside the head, lack of adequate blood flow and lack of oxygen, produced brain damage.
[42] Although he was confident that the head struck a firm surface causing the skull fracture, he could not estimate how much force had gone into fracturing the skull. All he could opine was that it was sufficient to break the skull and cause the injuries described.
[43] With respect to timing the injury, all he could say was that the head injury occurred in the recent timeframe prior to admission to hospital but nothing more specific than that.
[44] With respect to symptoms of the injury, in some cases, the person might be immediately unconscious after the impact to the head. In other cases, the person will remain conscious. Alternatively, they may be transiently unconscious or unconscious for a brief period of time. However, the impact would set in motion the events from the bleeding on the surface of the brain. That becomes problematic because the blood clot is accumulating in volume and the pressure is rising. Thus, there will be a period of time before death where the person is neurologically deteriorating. They may have headache, vomiting, a depressed level of consciousness, appear sleepy, or may not be rousable.
[45] The early phase of the deterioration, when the person is not severely impaired, is called the lucid interval. Simply put, the lucid interval is a period of time where the neurological functions have not so badly deteriorated that the individual is still lucid in some way. With respect to this lucid interval, “the clock is running” but one does not know at what speed and one does not “know whether it’s running, as it were, in a straight line”. Further, the possible outward appearances of the child could range from progressive deterioration of consciousness over a period of minutes to hours or to unresponsiveness immediately after the impact.
[46] He was asked whether the child would have been able to have incurred the brain injury and not have displayed any symptoms for a period of time. He thought that it was unlikely that there would be a period of time where she would have been acting like a completely normal child. She would not have been happy, playful, or interactive. She would not likely be eating but it was possible. But if the child was not normally playful and happy, then it is possible that a difference would not be noticed.
[47] Symptoms of crying, irritability, vomiting, or loss of responsiveness would have been present from the time the trauma actually occurred and would have persisted until the child began to lose consciousness.
[48] His opinion was that the child would have to have been unconscious within hours. He said, “I think it’s exceptionally unlikely that it would have been longer than hours, and very likely would have been quite a bit shorter than that, several minutes to maybe an hour or two.”
[49] He agreed in cross-examination that the impact of the injury he observed in Duy-An could have caused immediate unconsciousness or there could have been a period of time where she was not completely unconscious. That period before she slipped into complete unconsciousness could have been minutes to hours. He said, “It is possible that after the injury was sustained, it might have taken some amount of time for the subdural haematoma to accumulate and cause complete unresponsiveness.”
[50] He testified that the medical literature suggests that the most common scenario is for the symptoms to appear immediately after the event. There are some rare case reports showing that there can be a delay in the onset of symptoms. He volunteered that there was one case report that described a delay in presentation of symptoms of 72 hours. But, for the most part, by and large, the symptoms present immediately or at least within 10 to 15 minutes.
[51] Dr. Pollanen was given three scenarios by the Crown to compare with his findings of Duy-An. These scenarios were based on statements given by Ms. Luckese prior to the death of the child. I will refer to those statements later in these reasons.
[52] The first scenario was a sudden unexpected collapse of the child with no prior trauma. That situation did not correlate with the rest of his findings, particularly because of the obvious recent head injury.
[53] The second scenario was Ms. Luckese tripping on a rug and striking the child’s head on a banister. He could not exclude that situation as a way in which the injury may have occurred. The same opinion would apply to a floor, a carpeted floor or a wall or a table – but not the sharp edge of a table. Striking the head on a sharp table edge would cause external injuries and he observed none here.
[54] The third scenario was a crying child with subsequent shaking but with no immediate effect on the crying. Shortly thereafter, however, after placing the child down, the child became unresponsive. In his opinion, the shaking could explain the retinal haemorrhages because of the different views in the published literature about retinal haemorrhages. However, this explanation would not explain the head injury. Shaking only, without impact, could not explain all of or even most of the observations that he made.
Aggravated Assault
Positions of the Parties
[55] It is the Crown’s position that Ms. Luckese lost her patience with the child and intentionally hit Duy-An’s head on a hard surface, likely the floor.
[56] The defence submits that despite what Ms. Luckese may have said to police and others after the events, I should have a reasonable doubt as to how the injury occurred. If the injury occurred by accident or without the knowledge of Ms. Luckese, she cannot be found guilty of manslaughter by aggravated assault. The statements made by Ms. Luckese are unreliable and cannot prove beyond a reasonable doubt that she inflicted the injuries intentionally.
The Evidence
[57] In a pre-trial ruling, I allowed into evidence a variety of statements made by Ms. Luckese to police officers. There was no dispute as to the admissibility of the statements that she made to several people prior to the child leaving for hospital. Those statements are remarkably consistent in explaining how the day unfolded from the time Duy-An was dropped off until she was taken from the residence to Trillium Hospital. Those statements are as follows in chronological order.
Ms. Nguyen
[58] Duy-An’s mother testified that on January 5, 2011, she spoke with Ms. Luckese at about 1:30 or 2:00 p.m. Ms. Nguyen called to find out if Duy-An was okay or crying like the day before. Ms. Luckese told her that things were getting better. There was less crying. Ms. Luckese said that the baby had eaten and was now being put into bed for a nap.
[59] She does not remember exactly when Ms. Luckese next called her but she estimated it to be about 30 to 45 minutes later. Ms. Luckese said that she had put Duy-An to bed and then changed her diaper. Duy-An had woken a little, opened her eyes and then went back to sleep. Ms. Luckese said that when she changed the diaper, Duy-An’s eyes were half closed. Ms. Luckese said that the half closed eyes scared her and that it “freaked her out”. In return, Ms. Nguyen told her that when Duy-An gets exhausted, her eyes become half closed; that was okay and she should let Duy-An sleep.
[60] Ms. Nguyen then thought to call again. She was about to call Ms. Luckese but then saw Ms. Luckese’s name on her phone. She does not remember when this happened but it could have been less than two hours after the last phone call. Ms. Nguyen saw Ms. Luckese’s name on her phone and said hello but there was no answer. She could hear footsteps and the voice of a woman picking up her children. She did not recognize that voice but did recognize Ms. Luckese’s voice saying that she had an Asian child who was sleeping and she had changed her diaper. It was similar to what Ms. Nguyen had already been told before.
[61] She guessed that they were both going to the room where Duy-An was sleeping because she knew that she slept on the second floor and heard them checking on her daughter and trying to wake her. The other lady said “Wake her up”. The other lady also asked whether she had called her mother yet and Ms. Luckese said she had. Ms. Luckese said something to the effect that she had spoken with the mother who said let her sleep. The other lady said “This is very weird”. Ms. Nguyen then hung up and got ready to go to Ms. Luckese’s residence. She was frightened because she had heard that something was weird that the child was sleeping and could not be awoken.
[62] As she was preparing to go, Ms. Luckese called to say that she could not wake Duy-An up. Ms. Nguyen told her to keep trying to wake Duy-An up and that she would get on her way.
Jennifer Grande
[63] When Ms. Grande arrived to pick up her child, Ms. Luckese was in the doorway of the house. She would not normally be standing in the doorway. She appeared to be upset but was not crying.
[64] There were no other adults there and she was not aware of any other adults helping Ms. Luckese with the day care.
[65] Ms. Luckese explained that she had a child who had been napping but was not waking up. Ms. Luckese said that she had been speaking with the mother who said that the child sometimes slept deeply and was difficult to wake. Ms. Luckese had her phone in her hand and apparently had just been speaking with the child's mother. She appeared shaken. She knew Ms. Luckese’s regular demeanour and she appeared rattled.
[66] Ms. Grande offered to help and asked to go upstairs to assess what was wrong with the child. They went upstairs together and she found the baby in the playpen. She had not seen the child before. The baby appeared to be sleeping and nothing seemed to be off. When she felt the child, she had a normal temperature and appeared to be breathing normally. She said to Ms. Luckese that this would not be normal for her son but since the mother had said that she does sleep deeply, this "threw off my judgment". Ms. Grande did not move the child but only touched her hand. She does not remember any other specifics of the conversation.
[67] At that time, another mother, Robin Dawson, came in the front door. The children were "getting wild" on the main floor, so she and Ms. Luckese went back down. Ms. Luckese did not move the child. They had been two to three minutes upstairs.
[68] They went downstairs and told Ms. Dawson that the baby was not waking. She asked Ms. Dawson to go upstairs to check on the child because she was a teacher. Ms. Luckese was behind her on the stairs. Ms. Dawson and Ms. Luckese went upstairs while Ms. Grande stayed with the children downstairs.
[69] When they came down, Ms. Luckese was carrying the baby and Ms. Dawson was looking to find a phone to call 911. When Ms. Grande saw the baby at that time, there was clearly something wrong. The child was limp and not holding onto Ms. Luckese. The child's head was leaning back and needed to be supported by Ms. Luckese. Ms. Luckese was holding the child over her shoulder with the back of the child's head in her hand.
[70] Ms. Dawson went into the TV room to find the phone to call 911 and Ms. Luckese followed her.
[71] Ms. Dawson called 911. Ms. Luckese put the child on the floor near the couch but Ms. Grande stayed near the door.
[72] The paramedics arrived as Ms. Grande was getting the other children dressed to go outside.
Robin Dawson
[73] When Ms. Dawson arrived, Ms. Luckese and Ms. Grande were in the foyer having a discussion. Ms. Luckese appeared to be upset and Ms. Grande appeared to be concerned. Ms. Dawson was told that Ms. Luckese was having difficulty waking the child from her nap. Ms. Dawson did not know the child.
[74] Ms. Luckese was upset, crying and shaking. Ms. Grande was very serious. Both of them said that Ms. Luckese was having trouble waking the child up. Ms. Luckese said that she had phoned the mother who was not concerned because the child was a deep sleeper.
[75] Ms. Luckese said that the child was having an off day and crying. She attempted to change the child's diaper and she would not wake up. She did not say when she had called the mother. Since Ms. Luckese still seemed upset, she went upstairs to check the child. She was nervous about seeing the child because of the conversation so far and about approaching someone else's baby.
[76] The child appeared to be sleeping. She touched her stomach and the child seemed to have shallow breathing. Her temperature felt normal and her skin colour appeared normal although she had not seen the child before. Ms. Luckese was behind her. Ms. Luckese picked up the child but she did not wake. Her arm flopped down. Ms. Dawson asked what the child's name was and Ms. Luckese told her. She called the child's name but she did not respond. She rubbed her cheek to rouse her but was unsuccessful. The child was oddly still. She thought that something was wrong and that they should call 911. She had only seen the child for a minute or a few minutes before she decided to call 911.
[77] She identified her voice on a recording of the 911 call. She was speaking with Ms. Luckese in the background. She told the 911 operator that the child was breathing, there was a heartbeat and that her colour was good. She was just very unresponsive. Ms. Dawson disclosed that the parents had been notified. The child had been fussy and crying all day. She had not been coughing that day. She said that the child was taking a “random deep breath” and then an “occasional deep breath”.
[78] When the 911 operator said that the baby should be put on the floor, they did that in the living room. She let the paramedics in.
Trevor Doyle
[79] Mr. Doyle arrived to pick up his son between 4:30 and 4:42 p.m. He knocked on the door and walked in. There were two mothers with children standing in the living room. They looked upset. One was “sort of crying”. Neither greeted him. Both were red in the face. He did not see Ms. Luckese.
[80] They told him that Ms. Luckese was upstairs with a new baby that could not be woken. At that, Ms. Luckese came down the stairs. She was walking slowly down the stairs with an infant in her arms. He had not seen the child before. Ms. Luckese was using both arms to hold the baby. It was not awake or conscious. It did not look like she was sleeping. Her eyelids were "very stretched" and it did not appear to be a restful sleep.
[81] When he grabbed the baby’s left arm, he could feel a strong pulse and that the child was breathing. The arm was normally warm. He asked if 911 had been called because the child was injured or sick and the welfare of the child was in question. Ms. Dawson said that they had called the baby’s mother who was not concerned and was on her way. He thought that it was “insanity” that 911 had not been called after ten minutes. He insisted that someone call 911.
[82] The baby's head fell forward like there was no muscle control. It "flopped forward". Ms. Dawson was calling 911 at that time. Ms. Luckese was upset and weeping. She could not wake the baby and did not appear to know what was going on.
[83] Since there was nothing he could do, he got his son ready to go outside. When he got outside, the paramedics had arrived and had blocked him in. He went back to the house and told them that the ambulance had arrived. He had no other contact with Ms. Luckese or the baby that day. He waited a half an hour and then left.
[84] The next morning, January 6th, Ms. Luckese called him at about 8:00 to 8:30 a.m. She said that she was sorry. He had already received a message from Peel Regional Police that the day care was closed indefinitely. He did not know if she was simply sorry that the day care was closed. She wanted him to pick up his son’s belongings. The conversation was less than a minute. He did not go to the day care that day.
[85] She called him the next day, January 7th. The call was between 8:00 and 8:30 a.m. Again she said that she was sorry. She said that she did not know how this happened, “it was just one second”. He did not ask what she meant. She asked him to come and pick up his son’s things, the sooner the better. She also said that she had never laid a hand on his son. She said that she had never hit his son or laid her hand on a child in 15 years. He responded by saying that he was sorry. He went within an hour to pick up his son's belongings.
[86] When he arrived, she answered the door and gave him his son’s grocery bag of belongings. She said that she was sorry but not what she was sorry for. He did not know what she was sorry about. It could have been that she was sorry that he had to find other child care arrangements.
Melissa Thomson
[87] Ms. Thomson was a paramedic with the Region of Peel. She responded to the 911 call along with her partner. They arrived at the day care at 4:25. She received information from bystanders in the driveway that there was a little girl on the floor that had been there for an hour. She kept walking and went in the front door. She does not remember if it was open. The house was in chaos. There was a dog barking and the women in attendance appeared to be excited.
[88] The girl was on the floor; she could see her when she first walked in and went directly to her. The child was not well. She was unconscious and not responding to any of the noise around her. She was limp, pale and gasping for air. Her partner looked for a pulse and Ms. Thomson checked on the child's breathing. Normally it would have been her job to get a history first but she did not wait to do so. The child was breathing eight breaths a minute when the breath count should be 20 to 30 breaths. She appeared to be struggling to get air. Her breath was irregular and slow.
[89] Her partner could not find a pulse and so Ms. Thomson used a stethoscope. She was able to find a heart rate and then got out a mask to assist the child with her breathing.
[90] When they sat her up to put a cardiac monitor on her, she was flaccid and there was no response from her.
[91] Ms. Thomson then turned to Ms. Luckese to find out what happened. She said that this was the second day of the day care for the child and repeated that the child was very upset since she had arrived there. She said that the child had napped from 2:00 to 3:00 p.m. and then had woken up. Ms. Luckese took her up to change her. The child was upset and fighting her. Then she suddenly went limp in her arms. She said that the child was not breathing properly and she did not know what to do.
[92] Ms. Luckese said that she put her on the floor. Ms. Thomson asked her when that was and she responded that she put her on the floor about an hour ago. In response, Ms. Thomson raised her voice and said "Sorry, this was an hour ago, why did you not call us an hour ago?" Ms. Thomson does not remember a response to her question.
[93] She then asked for any information about the child’s name, date of birth health card, etcetera, but Ms. Luckese said nothing. She asked her partner to call the police because something did not seem right. At that point a female officer arrived. Ms. Thomson gave the officer a brief rendition of what she knew and then said that they had to go. She spoke just seconds to the female officer. They got into the ambulance with the child at 4:35 p.m. They had been at the house for perhaps ten minutes.
[94] She did not write notes of what Ms. Luckese said at the scene. She denied that the comment “about an hour ago” was based on being asked when the child was not breathing properly.
Tanya Hackenbrook
[95] On January 5, 2011, Constable Hackenbrook was working the day shift with the Peel Regional Police. She was called out at 4:23 p.m. to attend at Ms. Luckese’s residence. She was told that there was an unconscious one-year-old child that was breathing but could not be awakened. She arrived to the scene at 4:32 p.m.
[96] When she arrived, the scene was chaotic. There were ambulance and fire services on the scene. There were adults in the driveway. She was advised that it was the home of a day care.
[97] Paramedics were working on the child on the living room floor. The toddler appeared very poor.
[98] There was an adult female at the bottom of the stairs who identified herself as Ms. Luckese. Constable Hackenbrook asked Ms. Luckese if anyone was in the home and she said that her son, age six, was upstairs. She asked Ms. Luckese if Duy-An had any allergies and she said that she did not think so and did not know of any.
[99] Constable Hackenbrook asked Ms. Luckese what had happened and she said that the child had started with her the day before and had been crying continuously. She had put down the child for a nap at 2:00 p.m. and 30 minutes later the child woke up crying. She changed the child. The child was crying and fighting one minute and the next minute “nothing”. Her eyes were then half open and she was snoring. When she picked her up, she went limp.
[100] They later went outside and continued their conversation. Ms. Luckese said that she called the mother who said that it was normal for the child to sleep with her eyes partly open. The mother had said to let her sleep and that she would be there between 5:15 and 5:30 p.m. However, Ms. Luckese was still worried and continued to check on the child. The child continued to be unresponsive.
[101] Constable Hackenbrook also spoke with the people in the driveway. She obtained their names and contact details and told them they could leave.
[102] At that point, the baby came out with the paramedics. She was flaccid, limp, and her colour was poor. The child's mother arrived while she was speaking with the adults. Constable Hackenbrook escorted Ms. Nguyen to the ambulance because the baby was already on board.
[103] Constable Hackenbrook then went back inside the home and asked Ms. Luckese to show her where the baby had been sleeping for clues as to what was wrong with her. Ms. Luckese showed the room where the baby was sleeping. There was a king bed and three playpens, plus mattress pads on each side. Ms. Luckese pointed out the playpen where the child had been sleeping. Constable Hackenbrook looked in the playpen for anything that the child might choke on or any vomit or any objects that the child might choke on.
[104] Constable Hackenbrook’s sergeant then said that they would secure the scene until they knew more. She therefore explained to Ms. Luckese that they would leave the house until they had updates. She took Ms. Luckese and her children to her cruiser to keep warm. Ms. Luckese and her children sat in the back and Constable Hackenbrook sat in the front.
[105] She questioned Ms. Luckese about her day for any useful medical information. She obtained the baby's name and went through the day with her. She was told that it was the second day of day care for the baby and that the father had dropped off the child at 10:30 a.m. The child was upset and crying all day. At 12:00 p.m. the child was fed chicken soup, Cheerios and a bottle. The bottle had milk or formula that came from the child’s home. The child had eaten her lunch without any issues although she still cried off and on.
[106] At 2:00 p.m., she put the child down for a nap with the others. She was still crying. She slept for half an hour and then woke up. Ms. Luckese changed her diaper. The child was crying and fighting one minute and the next minute, “there was nothing”. She was sleeping with her eyes open and snoring. When she picked her up, the child was limp.
[107] She then called the child's mother because she was concerned about the child sleeping with her eyes open. The mother said that sometimes that occurred and to let her sleep. She said that she would pick her child up between 5:15 and 5:30 p.m. Ms. Luckese was still worried and kept checking on the child. She was still unresponsive.
[108] She shared her concerns with the other parents when they arrived. She asked them to look at the child. Constable Hackenbrook asked her if anyone had been sick and she said no, although she had a mild flu on New Year's Day. None of the children had been ill. She was not aware of any medical conditions relating to the child. She did not believe that the child had any allergies.
[109] Ms. Luckese was upset, crying and very worried throughout.
Bruce Thomson
[110] On January 5, 2011, Detective Thomson was with the Special Victims Unit with Peel Regional Police.
[111] At 4:45 p.m. he was called out with respect to a child who was "vital signs absent". The child was in her second day of day care and he was provided with an address. He left at 5:10 p.m. and arrived to the scene at 5:40 p.m.
[112] Ms. Luckese was seated in the backseat of Constable Hackenbrook's cruiser. He introduced himself to her as a police officer since he was wearing business casual clothing. He said that he wished to speak with her and she appeared to be quite willing to accompany him to the police station to have a videotaped interview.
[113] The interview started at 7:07 p.m. During that interview, Ms. Luckese described the events in a number of ways.
[114] At 7:26 p.m., she said that when she picked Duy-An up during diapering;
She was crying and just you know rolling around and fighting a little bit. Um, one minute and then the next minute she was just like sleeping; she was lifeless and her eyes were open a little bit. And she sounded as though she was snoring. I picked her up and she was just lifeless, she was very limp and her head was just everywhere. I’ve taken care of kids for a long time and I’ve never seen a child that lifeless.
[115] At 7:45 p.m., she said that the nap was between 2:15 and 2:45 and that diapering was at 3:00 p.m. She then called the child's mother.
[116] At 7:52 p.m., she talked about phoning the mother which is consistent with the mother's evidence about the dropped call and the evidence of the mothers in the house at the time.
[117] At 8:15 p.m., she told Detective Thomson that the child was left alone with one other child and her son, Bradley, for a few minutes in the morning. Bradley was the older of the two and he was three. She confirmed that other than that point in time, no one else was looking after the child except her.
[118] Despite repeatedly saying that she did not know how Duy-An came to be in that condition, at 8:19 p.m., she said that she tripped over a mat in front of the bed and accidentally hit the child’s head on a banister. This occurred at 3:00 p.m. before she changed the diaper. She did not call 911 because she thought that Duy-An was okay.
[119] At 8:27 p.m., she denied that she tripped and the child hit the banister. Instead, she said that she shook the child and a couple of minutes after that, the child went limp. She did not call 911 because she thought the child was sleeping. During the interview, she showed how she shook the child.
[120] At 9:46 p.m., she wrote an apology letter to the Nguyen’s at the suggestion of Detective Thomson. She wrote that she was “sorry for hurting Duy-An”.
[121] With Ms. Luckese’s consent, they returned to her residence to photograph and videotape the scene that night. In the scene walk-through, Ms. Luckese describes that as soon as she thought the child was limp, she called the mother.
[122] On the way back to the police station after the walk-through, Detective Thomson asked her about her education. She said that she had a partial early childhood education diploma from Seneca College. She had been there for a year. He asked her if she had been told not to shake a child and she said yes. He asked if that was from the course or her general knowledge and she said both. She then went on to say, “I know it is wrong. I just snapped. I guess I hit a breaking point.” Detective Thomson wrote her comments out in his notebook. There was no cross-examination on this statement.
[123] To complete the relevant evidence, the defence called seven witnesses to testify as to Ms. Luckese’s reputation as a day care provider. They described her and her reputation as kind, loving, caring, calm, patient, responsible, dependable and open. The Crown does not deny that she was all of that over her career as a care provider.
Analysis
[124] The defence agrees that if I were to find that the injuries inflicted on Duy-An were intentional, then an assault is made out and accordingly, so too is manslaughter. While the defence accepts almost all of the medical evidence, he submits that it does not tell me if the impact was inflicted or accidental. The defence also submits that, in her statement to Detective Thomson, Ms. Luckese denied causing any harm to the child, said that she accidentally hit the child’s head on a banister and ultimately seemed to admit to shaking the child. In reviewing the statements, the defence submits that it is hard to tell when Ms. Luckese is telling the truth and when she is fabricating. Given her emotional state, the manner of Detective Thomson’s questioning and his failure to obtain a videotape of her comments on the drive back to the station, I should not rely on these statements to find that she admitted to intentionally striking the child.
[125] Finally, the defence submits that given the character evidence that was called, it is unlikely that she would have committed the offence charged. She was an experienced day care provider and would be used to an upset child in the early days of day care.
[126] I agree with the defence’s assessment of the medical evidence. Only Dr. Au expressed the opinion that the injury was intentional. One of the factors she considered in her opinion was that there was no reported fall or valid explanation of the injury. While she may be able to rely on such lack of evidence to form an opinion, I cannot.
[127] The defence admits that the injury occurred on January 5, 2011.
[128] Ms. Luckese spoke with Ms. Nguyen at approximately 1:30 p.m. and advised her that Duy-An had eaten well, was better than the day before, and was about to be put down for her afternoon nap. At that time, there were no concerns about Duy-An’s behaviour.
[129] There is no dispute that the child had a skull fracture that led to her medical emergency. There is no suggestion of injury or cause prior to that date.
[130] Given the evidence that a lucid interval can be expected to be up to two hours after an injury and since Duy-An was behaving normally at 1:30 p.m., I find that the injury could not have occurred in the morning as suggested by Ms. Luckese when Duy-An was momentarily left alone.
[131] Duy-An was then put down for her nap. Photographs of her bed were in evidence. There are no hard surfaces as described by Dr. Pollanen in sight. Ms. Luckese repeatedly said that Duy-An woke up at approximately 2:30 p.m. She was crying as she had the day before. Within minutes, she was limp and unresponsive. The symptoms then described by Ms. Luckese are consistent with the medical opinions relating to the head injury.
[132] Ms. Luckese is consistent in her descriptions of how the child behaved at the relevant times. There is no challenge to those statements, only to the arguably inculpatory statements. I accept what she says about the child’s behaviour.
[133] I accept that, on their own, the inconsistent statements by Ms. Luckese during the interview are not sufficiently reliable to found a conviction. Her final position of shaking the child, but not hitting her head, is inconsistent with the medical evidence that the child suffered a skull fracture. On their own, I cannot tell which of her statements on the videotape are true.
[134] However, Detective Thomson’s evidence of what Ms. Luckese said in his cruiser comes into play at this point. He said that Ms. Luckese said:
“I know it is wrong. I just snapped. I guess I hit a breaking point.”
[135] Despite being taken in the cruiser and without the confirmation of videotape, this evidence was not denied. There was no cross-examination of Detective Thomson at the trial. In my view, these comments are consistent with the balance of the evidence.
[136] Ms. Luckese was an experienced day care provider. Her character evidence shows that she was an exemplary day care provider and had experience dealing with children in their early days in her care. However, how she had dealt with other children, in other circumstances, is not of great significance to me in this case relating to this child on this day. I cannot draw the inference that because she worked well with other children on other days, she could not have assaulted this child.
[137] Similarly, the Crown submits that I can draw the inference that Ms. Luckese lost her patience and struck the child since she was taking care of seven children under three years of age; Duy-An was new to the day care and apparently had very little English; she had been crying throughout her stay and had apparently awoken when all of the children should have been asleep. Combined with Ms. Luckese’s statement to Detective Thomson in his cruiser, this is the inference that I can draw.
[138] I find that Ms. Luckese, as she said to Detective Thomson and Mr. Doyle, momentarily lost her patience with Duy-An and assaulted her, causing the skull fracture. There is no other rational explanation for the skull fracture and undisputed symptoms. That illegal act led to the death of Duy-An. Ms. Luckese is guilty of manslaughter.
Fail to Provide Necessaries
[139] Dr. Au acknowledged that the fracture could have occurred by an accidental fall. She thought that would be unlikely because no other explanation had come to her. The defence is not required to provide that explanation.
[140] Even if I am incorrect in relying on Ms. Luckese’s statements, and if, in fact, the skull fracture was caused by an accident, Ms. Luckese is also guilty of failing to provide the necessaries of life to Duy-An.
[141] Section 215 (1)(c) of the Criminal Code stipulates that everyone is under a legal duty to provide necessaries of life to a person under his or her charge if that person is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself or herself from that charge, and is unable to provide himself or herself with necessaries of life.
[142] Section 215 (2)(b) states that everyone commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him or her, to perform that duty, if, with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
[143] In R. v. J.F. 2008 SCC 60, [2008] 3 S.C.R. 215, Fish J. stated the following about the actus reus and mens rea for the offence:
[66] The actus reus of failing to provide the necessaries of life will be established if it is proved (1) that the accused was under a legal duty to provide the necessaries of life to the person in question pursuant to s. 215(1)(a); (2) that, from an objective standpoint, he or she failed to perform the duty; and (3) that, again from an objective standpoint, this failure endangered the life of the person to whom the duty was owed, or caused or was likely to cause the health of that person to be endangered permanently. Following Charron J.’s reasoning in R. v. Beatty, the marked departure standard is not applied at this point, since “[n]othing is gained by adding to the words of [the statute] at this stage of the analysis” (para. 45).
[67] The mens rea of failing to provide the necessaries of life will be established if it is proved that the conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, guardian or family head in the same circumstances. The conduct must represent a marked departure because, as Lamer C.J. indicated: “Unlike negligence under civil law, which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness” [References removed].
[144] There can be no doubt that, as a day care provider, Ms. Luckese was under a duty to provide the necessaries of life to Duy-An.
[145] I agree with the defence that what the parents, at 4:00 p.m. or 4:30 p.m., observed and what the trained medical personnel observed thereafter is of little assistance to me. As can be seen from the medical evidence set out above, it is impossible to tell the timing of the symptoms during the lucid period. What Ms. Luckese saw at 2:30 p.m. and after may have been significantly different than what was seen from 4:00 p.m. onwards. However, I can rely upon what Ms. Luckese observed at 2:30 p.m.
[146] Regardless of the mechanism of the injury to Duy-An, Ms. Luckese was aware of the injury to Duy-An between 2:30 and 3:00 p.m. At the outset of her interview with Detective Thomson, she appears to be sincerely assisting with the investigation. There has been no attack by the defence on her statement to Detective Thomson, other than the parts where she appears to admit to an assault. Her statement is consistent with what she told the others with whom she spoke that day. I can therefore rely on what she told Detective Thomson about Duy-An’s condition at that point. She said:
She was crying and just you know rolling around and fighting a little bit. Um, one minute and then the next minute she was just like sleeping; she was lifeless and her eyes were open a little bit. And she sounded as though she was snoring. I picked her up and she was just lifeless, she was very limp and her head was just everywhere. I’ve taken care of kids for a long time and I’ve never seen a child that lifeless.
[147] I appreciate that Ms. Luckese immediately called Ms. Nguyen with her concerns; however, in her call, she did not set out those concerns in detail to Ms. Nguyen. Regardless of what details she gave to Ms. Nguyen, there was no attack on Ms. Nguyen’s evidence that she was not so concerned as to leave her place of employment. Had the description that Ms. Luckese gave to Detective Thomson been given to Ms. Nguyen, I have no doubt that Ms. Nguyen would not have remained at work.
[148] Ms. Luckese also described checking on the child’s breathing on a number of occasions. If she was concerned whether the child was breathing, combined with the observations set out above, Ms. Luckese failed to perform her duty when she failed to contact 911 or obtain other medical attention for the child.
[149] On that basis, Ms. Luckese failed to perform her duty when she failed to contact 911 or obtain other medical attention for the child.
[150] One of the exhibits at trial was Ms. Luckese’s First Aid certificate that was taken off the wall in the front hall. With evidence of Ms. Luckese’s certificate there can be no excuse that she would not know to react to what she found. This was not an error in judgment. I have no doubt that in this particular instance, Ms. Luckese was concerned with what had occurred, hoped and prayed that it was not serious and then failed to act. Given that Duy- And was “just lifeless, she was very limp and her head was just everywhere”, when Ms. Luckese failed to call 911, she exhibited a marked departure from the standard of care one would expect of her as a person in charge of the child.
[151] On all of the medical evidence, I am satisfied that her failure to call 911 as early as possible endangered the health and life of a person to whom the duty was owed.
Causation
[152] The defence argues that even if I find as I have, I must still be persuaded beyond a reasonable doubt that Ms. Luckese’s failure to act, not only contributed to, but caused Duy-An’s death.
[153] In R. v. Alexander, [2011] O.J. No. 646, Molloy J. said the following:
[6] To constitute manslaughter, the failure to provide necessaries must be proven to have been the cause of death, both from a factual and legal perspective. The Supreme Court of Canada described factual and legal causation in R. v. Nette at paras. 44-45:
In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.
Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished . . .
[7] It has long been the law that the act or omission of an accused need not be the sole cause of death in order to meet the required standard of causation for culpable homicide. In 1978, in the landmark case of R. v. Smithers, the Supreme Court of Canada defined the standard as “a contributing cause of death outside the de minimis range.” In Nette the Supreme Court confirmed the validity of the Smithers standard, and in particular that it included a contribution to the death that was “not trivial” or “not insignificant.” However, the majority of the Court was of the view that the definition should be clarified by putting it in a positive rather than negative form and by eliminating the Latin expression. Thus, expressing the standard affirmatively, the Court held that it was sufficient for manslaughter if the act or omission was a “significant contributing cause” to the death.
The Crown is only required to prove that the lack of treatment played more than a minor, trivial, or di minimus role in [the] death.
[154] Dr. Kulkarni was asked whether a delay in obtaining medical treatment after a brain injury was sustained would affect the prognosis of medical intervention and treatment. He testified that when the EMS personnel arrived, they found her unconscious and gasping for breath, breathing only eight breaths per minute, which is a very abnormal low breathing rate for a child. They documented as well that she had a weak brachial pulse. And by documenting that it was weak suggests that her blood pressure was very low. He said that one of the important principles in managing a head injury is to maintain adequate oxygenation and circulation to the brain. If a child is breathing abnormally, then it is likely that she is not oxygenating her blood well. As well, if a child has a weak pulse and low blood pressure, then the blood that is there, whether oxygenated or not, is probably impaired in terms of being delivered to the brain. Therefore, the end effect of impaired blood was that her brain was likely not receiving the amount of oxygen that she needed.
[155] He opined that medical care workers would always like to see a child as early as possible following a head injury particularly in a situation where they are going to progress to a severe coma. With the CT scan showing the size of the haematoma, he could not think of a circumstance where surgery would not have been done almost right away.
[156] He said that the strongest indicator of a positive outcome following head injury is the status of the child at the time that they are assessed. So if there was a time when she was in a lesser degree of coma with a lesser degree of brain injury and brainstem injury, earlier intervention may have led to a more positive outcome for her. If Duy-An had obtained medical treatment sooner after the brain injury was sustained, “it’s quite possible that it would have led to a more favourable outcome for her and would have impacted her prognosis; I cannot say that with certainty.”
[157] He was asked the following question and gave the following answer:
Q. Would earlier medical intervention during those 60 to 90 minutes have assisted?
A. It may well have helped. And primarily through two means, one is if there was better medical support for her breathing and circulation then the brain potentially could have been less compromised. It may have suffered less ischemic injury that might have led to less swelling. The second factor is that had she come to medical attention sooner then we potentially could have removed that subdural haematoma sooner relieving that pressure and potentially less of the brain would have been compromised.
[158] He accepted that he wrote the following in his report:
“Had she been intubated and medically supported earlier in the course of injury, it is possible that the extent of ischemic brain injury might have been lessened.” “Potentially, this could have resulted in less significant brain swelling (edema). It is possible, but not certain, that this might have led to a more favourable outcome for the child.”
[159] Dr. Kulkarni gave the following answers to my questions and to questions posed by the Crown and Defence:
Q. THE COURT: And then another one is this, obviously the sooner the treatment the better, but there’s some practical reality.
A. Uh-huh.
THE COURT: 9-1-1.
A. Yeah.
THE COURT: Ambulance, Trillium, Sick Kids. As a practical matter, from the timeline that you’ve seen, assuming that the injury was -- or the unresponsiveness was 60 to 90 minutes earlier than the EMS was called...
A. Uh-huh.
THE COURT: ...if the EMS had been called and the same timeline goes from there, can you help us with whether that would have made a different result?
A. Right. And I don’t know, which is why I say I certainly can’t -- I cannot be certain that earlier treatment to that regard would have necessarily made a difference. Sometimes by the time children are already in a state of unconsciousness medical treatment, no matter what you do, cannot alter the prognosis that’s possible.
THE COURT: Okay. That sounds a little less certain than your evidence in-chief. And I’m not saying you’re telling a different story, I’m just trying to understand the terminology. So in this case, you can’t tell us one way or the other whether it would have mattered or you think....
A. No, I think it’s, it’s, it’s quite possible it would have but I can’t say with certainty that it would have.
THE COURT: Okay. So you’re saying that 60 to 90 minutes...
A. Uh-huh.
THE COURT: ...if everything that happened had started 60 to 90 minutes sooner, the best you can say is it’s possible that it may have made a different result?
A. That’s right.
THE COURT: But you can’t say that it would?
A. No.
THE COURT: Nor that it wouldn’t?
A. That’s right.
THE COURT: Okay.
Any questions arising out of mine, Crown?
MS. SLATE: Just one question, Your Honour.
MS. SLATE: Q. If EMS had been called 60 to 90 minutes sooner what would they have been able to do that would have assisted this child?
A. It depends what they would have found at that time, but they would have then at least help insure that the breathing and circulation and oxygenation was optimized. So to whatever extent during that delay there was impairment in those they would have been able to at least have prevented that. And the consequences then to the brain would have been that there may have been less of that ischemic injury to the brain and perhaps less swelling.
THE COURT: Defence?
MR. WHITZMAN: Q. Even in hindsight and having looked inside the brain of the child you can’t say this degree of ischemia existed at X o’clock and this degree of ischemia existed at X o’clock plus half an hour?
A. I can’t say that based on my clinical assessment.
[160] Based on the medical evidence set out above, I find that Duy-An’s death occurred because of a lack of oxygen to her brain. That lack of oxygen came from the skull fracture and the passage of time. Ms. Luckese knew the cause of that skull fracture. Her failure to act added to that passage of time. On this evidence, I am satisfied that the delay in treatment was a significant contributing cause to Duy-An’s death.
[161] I am satisfied beyond a reasonable doubt that Ms. Luckese failed to perform her duty to provide the necessaries of life to Duy-An which was a significant cause of her death. Ms. Luckese is guilty of manslaughter on that basis as well.
Result
[162] In the result, Ms. Luckese is found guilty of manslaughter in the death of Duy-An Nguyen.
Lemon J.
Released: March 14, 2016
Corrected Date: March 16, 2016