R. v. M.W.1, 2016 ONSC 6879

CITATION: R. v. M.W.1, 2016 ONSC 6879

Court File No. CR-14-3097

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

M.W.1

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE G. VERBEEM

on September 19, 2016 at WINDSOR, Ontario

APPEARANCES:

E. Brown

Counsel for the Crown

G. Goulin

Counsel for M.W.1

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

ENTERED ON PAGE

REASONS FOR JUDGMENT

1

E X H I B I T S

EXHIBIT NUMBER

ENTERED ON PAGE

O

Justice Verbeem's portion of Reasons for Decision

119

Transcript Ordered:

September 19, 2016

Transcript to Judge for Approval:

October 24, 2016, November 3, 2016

Transcript Completed:

November 6, 2016

MONDAY, SEPTEMBER 19, 2016

REASONS FOR JUDGMENT

VERBEEM, J. (Orally):

M.W.1 stands charged on a one count Indictment alleging:

"That he on or about the 6th day of February in the year 2013, at the Town of LaSalle in the Southwest Region, did wound L.W.1 thereby causing an aggravated assault, contrary to Section 268 of the Criminal Code."

L.W.1, who is Mr. M.W.1's daughter, was six months old on the date specified in the Indictment.

Mr. M.W.1 pleads not guilty to the charge.

In order for Mr. M.W.1 to be found guilty of aggravated assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

1. That M.W.1 intentionally applied force to L.W.1;

2. That L.W.1 did not consent to the force that M.W.1 intentionally applied;

3. That M.W.1 knew that L.W.1 did not consent to the force that he intentionally applied; and

4. That the force M.W.1 intentionally applied wounded L.W.1.

To "wound" means to injure someone in a way that breaks, cuts, pierces or tears the skin or some part of the person's body. It must be more than something trifling, fleeting, or minor such as a scratch.

The Crown must prove beyond a reasonable doubt that Mr. M.W.1's intentional application of force to L.W.1 contributed significantly to "the wounding" of L.W.1, if so found.

The Crown does not have to prove beyond a reasonable doubt that Mr. M.W.1 meant to wound L.W.1 when he intentionally applied force to her.

The Crown does have to prove that a reasonable person in the circumstances that confronted Mr. M.W.1 would realize that the force Mr. M.W.1 intentionally applied, if so found, would put L.W.1 at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm, or the precise kind of harm that L.W.1 suffered. "Bodily harm" is any kind of hurt or injury that interferes with another person's health or comfort. It has to be something more than just brief or fleeting or minor in nature.

If Crown counsel establishes each of the essential elements of the offence beyond a reasonable doubt I must find Mr. M.W.1 guilty of aggravated assault.

If the Crown does not establish the first three essential elements of the offence, as set out above, I must find Mr. M.W.1 not guilty.

If Crown counsel establishes each of the first three essential elements of the offence, as set out above, beyond a reasonable doubt but does not establish the fourth element of the offence beyond a reasonable doubt, that is that the force Mr. M.W.1 intentionally applied wounded L.W.1, I must determine whether the Crown has established the essential elements of the lesser included offences of assault causing bodily harm or, alternatively, assault simpliciter beyond a reasonable doubt.

Mr. M.W.1 enjoys a presumption of innocence unless and until the Crown has proven his guilt beyond a reasonable doubt. Mr. M.W.1 is not required to prove his innocence. It remains the Crown's obligation throughout to establish Mr. M.W.1's guilt beyond a reasonable doubt.

The Crown's case proceeded as a blended voir dire and trial. The voir dire concerned the voluntariness of approximately 20 statements alleged to have been made by Mr. M.W.1 both before and after his arrest on March 15, 2013.

The trial quickly and dramatically eclipsed its original estimated duration of two to three weeks, and evidence and voir dire submissions proceeded on an intermittent basis over a six month period from January to June 2015. During the course of the voir dire, the Crown called evidence from:

a. Two Michigan Child Protective Service workers, Ms. Cassandra Moon-Faqua and Ms. Pamela Traskos);

b. two employees of the Windsor-Essex Children's Aid Society which I will refer to as "W.E.C.A.S." or "C.A.S.", Ms. Angela Suzor and Ms. Sophie Belleau;

c. Ten police officers, four of whom who participated in police interviews of Mr. M.W.1 - of which there were three: one pre-arrest on February 9, 2013; and two post-arrest on March 15 and 19, 2013, respectively;

d. three doctors who assessed L.W.1 after February 6, 2013: treating physicians Dr. Deshpande and Dr. Bütter, and assessing physician Dr. Angelilli;

e. M.W.2, Mr. M.W.1's wife as at February 6, 2013; and

f. M.W.2's mother, B.R..

Mrs. M.W.2 is the subject of a "third-party suspect application" brought by Mr. M.W.1.

For reasons delivered on December 17, 2015, the following statements were ruled admissible - the accused's statements to:

a. Cassandra Moon-Faqua on February 8, 2013;

b. Pamela Traskos on February 10, 2013;

c. Detective Marc Williams on February 12 and March 12, 2013;

d. Detective Williams during the course of a police interview on March 15, 2013;

e. Sophie Belleau, W.E.C.A.S. worker, on February 14, 15, 25 and March 18 and 19, 2013;

f. Angela Suzor, W.E.C.A.S. supervisor, on February 13, 21 and March 5 and 11 and 15, 2013;

g. M.W.2 on March 13 and 14, 2013; and

h. Detective Sergeant Kevin Beaudoin during the course of a police interview on March 19, 2013, subject to the excision of certain portions which solicited information about privileged communications between Mr. M.W.1 and counsel.

I also ruled that statements made by the accused to P.C. Jason Woods and P.C. Bonnie Racine in the course of a police interview on February 9, 2013 were inadmissible.

Evidence in the trial resumed in April of 2016. All viva voce evidence, except that which I ruled inadmissible on December 17, 2015, was imported into the trial proper and the relevant exhibits from the voir dire were re-numbered and re-lettered as exhibits in the trial proper on the consent of the parties.

Mr. M.W.1 testified on his own behalf. He did not call any additional evidence. The Crown called no reply evidence.

I will not systematically review the evidence of every witness. Instead, I will provide a comprehensive overview of the narrative. I will then review the evidence of the principal actors: M.W.2, B.R., and M.W.1, together with the evidence of the medical professionals that testified. I will briefly set out the positions of the parties. Following that, I will explain my reasons for verdict.

THE OVERVIEW

L.W.1 was born on […], 2012.

During the early morning hours of February 8, 2013, M.W.1 and M.W.2 brought L.W.1 to the emergency department of Windsor Regional Hospital, Metropolitan Campus, where she presented with evidence of external abdominal bruising and internal injuries, specifically a bowel obstruction. L.W.1's injuries were later determined to be consistent with severe blunt force trauma or traumas. Based on the severity of her injuries, L.W.1 was transferred to the Detroit Medical Center, the DMC, in the State of Michigan where she was admitted and treated. This was not the first time in L.W.1's young life that she presented at hospital for possible traumatic injury assessment.

On September 18, 2012, Mr. and Mrs. M.W.2 brought L.W.1 to the hospital after Mrs. M.W.2 noticed a sensitive bump on L.W.1's head. Eventually, she was diagnosed with a skull fracture that did not require further treatment. When asked by the treating doctor, Mrs. M.W.2 could not identify a specific cause of the injury but explained to medical staff that a plastic toy brush, held by L.W.1's three-year-old sister L.W.2, may have come into contact with L.W.1's skull when she bent over to kiss L.W.1. Owing to the nature of the injury and the age of the child, W.E.C.A.S. was notified.

W.E.C.A.S. intake worker, Sophie Belleau, attended on the W.s at hospital. Ms. Belleau asked the W.s a number of questions about their home life and she was advised by the treating doctor that a plausible explanation had been given for L.W.1's injuries. The involvement of W.E.C.A.S. made Mrs. M.W.2 nervous because she knew that it had the power to apprehend children. As part of her investigation, Ms. Belleau visited the W. home one time and recommended a safety plan designed to ensure that L.W.2 was not alone with L.W.1. There was no additional follow-up by W.E.C.A.S. as a result of that injury.

On October 18, 2012, Mrs. M.W.2 attended on her family physician, Dr. Doyle, to discuss issues related to L.W.1's feeding, which had been extremely poor since mid-September, and her own anxiety. L.W.1's feeding issues caused Mrs. M.W.2 a great deal of distress. She maintained a journal detailing L.W.1's feedings, bowel movements, and related information with a level of precision and detail which was viewed as exceptionally atypical by Ms. Belleau.

On October 18, 2012, Dr. Doyle identified bruising on L.W.1's chin and red marks on her chest. She did not accept Mrs. M.W.2's explanation for L.W.1's facial bruising and ordered her to bring L.W.1 to the hospital for emergency assessment.

W.E.C.A.S. and the Windsor Police Service, W.P.S., were also contacted. The examining doctor at the hospital reported that he observed linear white marks or lacerations inside L.W.1's mouth of indeterminate cause. The doctor advised a member of W.E.C.A.S. that a plausible explanation was offered for L.W.1's presentation. He did not suspect child abuse, but he could not rule it out.

W.P.S. closed its investigation.

On behalf of W.E.C.A.S., Ms. Belleau attended a further home visit with Mrs. M.W.2 and formulated a safety plan pursuant to which Mrs. M.W.2 could not be left alone with the children. Another adult was required to be present with her when she was in the presence of the children. Ms. Belleau arranged for a follow-up appointment for Mrs. M.W.2 with her doctor who prescribed two successive courses of anti-anxiety medication.

On October 25, 2012 L.W.1 attended her first appointment with pediatrician, Dr. Morgan, and presented with additional bruises about some of her joints, her abdomen, and her chin. Mrs. M.W.2 says she asked Dr. Morgan if there could be a genetic cause for the bruising and she says she was advised that genetic testing may be warranted when L.W.1 was six months old.

The W.E.C.A.S. file was closed in November 2012 as Mrs. M.W.2's mood had stabilized and L.W.1's pediatrician did not express concerns about abuse.

Additional bruising developed on L.W.1 in late November; Mrs. M.W.2 was concerned about the potential of further W.E.C.A.S. involvement if that bruising was observed by a doctor.

Mrs. M.W.2 and L.W.1 attended on Dr. Morgan for L.W.1's six-month follow-up on February 4, 2013. L.W.1 presented with a new bruise on her abdomen approximately two inches by one inch and bordered by four dots, one in each corner, which Mrs. M.W.2 believed was caused when L.W.2 leaned in to kiss L.W.1 while L.W.1 was buckled into a swing. She thought that the swing buckle may have pressed into L.W.1's abdomen. Consistent with the lexicon adopted by counsel in this proceeding I will refer to this as "the buckle bruise". Dr. Morgan was not called to testify with respect to any of her findings, opinions, or conclusions.

February 6, 2013 - The Drop/Catch Incident

For context I am going to briefly summarize the evidence regarding what has often been described as the "drop/catch" incident in this proceeding. I will detail the evidence of Mrs. M.W.2, Mrs. B.R., and Mr. M.W.1, respectively, about the happenings of February 6, 2013 later in these reasons.

Generally, on the afternoon of February 6, 2013, Mrs. B.R. attended the W.s' residence to care for L.W.1 and L.W.2. Mrs. M.W.2, who had recently returned to work as a supply teacher, was called in to work for the afternoon. Mrs. M.W.2 returned home in the late afternoon. Mr. M.W.1, who worked full time for a building supply company, arrived home from work sometime shortly before 5:00 p.m.

L.W.2 was scheduled for a swimming lesson between 5:00 and 5:30 p.m. There is a general consensus among the witnesses that it was agreed that Mrs. B.R. would attend the lesson with L.W.2 and Mrs. M.W.2, and Mr. M.W.1 would stay home with L.W.1.

According to Mrs. M.W.2, she, Mrs. B.R., and L.W.2 left for the swimming lesson at approximately 4:50 p.m. and arrived back home at approximately 5:45 p.m. At that time Mrs. M.W.2 observed L.W.1 sitting in her swing. She appeared pale. Mr. M.W.1 explained that while he was carrying L.W.1 she wiggled and fell out of his arms but he managed to catch her before she hit the floor, the so-called "drop/catch" incident. He reported that L.W.1 vomited after the drop/catch. Mr. M.W.1 testifies that the drop/catch is truly what happened while he was alone with L.W.1 on February 6, 2013. He denies that he intentionally harmed L.W.1 at that time or ever. To the extent that he applied force to her, it was accidental.

L.W.1 normally slept between 5:30 p.m. and 9:30 p.m. Mrs. M.W.2 states that after learning about the drop/catch and without checking L.W.1 for bruises, she placed L.W.1 in her crib and L.W.1 fell asleep. The rest of the family, including Mrs. B.R., made and then ate supper.

Mrs. M.W.2 states, and Mr. M.W.1 confirms, that either during the preparation of or the course of their meal Mr. M.W.1 told Mrs. M.W.2 that there was a bruise on L.W.1. Mrs. M.W.2 told him that she would assess the bruise later when she changed L.W.1.

At approximately 9:30 p.m. and after Mrs. B.R. left the W. home, Mrs. M.W.2 changed L.W.1 and saw a new "four inch by four inch bruise" on the right side of her abdomen and speckled bruising on her left side.

Mrs. B.R. tells a different tale. She says that almost immediately after they returned from swimming, at approximately 5:45 p.m., Mrs. M.W.2 summoned her to L.W.1's bedroom and advised her that Mr. M.W.1 had had an accident with L.W.1. Mrs. M.W.2 then removed L.W.1's diaper and they observed a large black bruise on L.W.1's right abdomen, which was something that had not been there earlier in the afternoon. Mrs. M.W.2 said, "they are going to take her", and then she cried and crumbled. The foregoing aspects of Mrs. B.R.'s evidence are contradicted by the evidence of both Mr. and Mrs. M.W.2.

Mrs. M.W.2 tried to feed L.W.1 several times on the night of February 6, 2013 but L.W.1 vomited. With each feeding attempt her vomit became progressively more yellow in colour.

L.W.1 continued to vomit, intermittently, throughout the day on February 7, 2013. In text messages she sent to Mr. M.W.1 that day, Mrs. M.W.2 expressed concern that L.W.1 may have suffered internal injuries and a concern that W.E.C.A.S. might be contacted if they took L.W.1 to a doctor. For his part, Mr. M.W.1 supported taking L.W.1 to the doctor and volunteered to leave work early to do so.

During the afternoon of February 7, 2013, Mr. and Mrs. M.W.2 administered small doses of Pedialyte to L.W.1 continuously over time and in Mrs. M.W.2's view her condition "seemed to improve". Mrs. B.R. came to the W. residence to assist with L.W.1's care. At 7:30 p.m., Mrs. M.W.2 attempted to feed L.W.1 diluted formula and again she vomited. This time her vomit appeared more green than yellow.

At approximately 9:30 p.m., Mrs. M.W.2 called a tele-health medical advisory service and stated that her baby had been dropped but caught and was now vomiting a green substance. She was advised to seek medical attention for L.W.1 within four to five hours. She did not follow that advice, in part, because she feared that W.E.C.A.S. would be contacted and her children would be apprehended.

At approximately 2:30 a.m. on February 8, 2013, L.W.1 let out a loud cry and vomited a green substance three times in rapid succession. Mrs. M.W.2 decided it was time to bring L.W.1 to the hospital. She woke Mr. M.W.1 and as they were getting ready to leave they discussed the possibility that W.E.C.A.S. would be contacted. Mrs. M.W.2 was extremely concerned that W.E.C.A.S. would apprehend their children.

Mrs. B.R., who was staying at the W. home on the night of February 7, suggested that Mr. and Mrs. M.W.2 advise hospital staff that she, Mrs. B.R., was holding L.W.1 at the time of the drop/catch incident and that Mr. M.W.1 was at the swimming lesson. Mr. M.W.1 disagreed and stated they should tell the truth about the cause of L.W.1's injuries.

On the way to the hospital Mrs. M.W.2 advocated that she and Mr. M.W.1 tell "the lie" that Mrs. B.R. proposed. Mrs. M.W.2 was motivated to lie because she did not want her children apprehended by W.E.C.A.S. Ultimately, Mr. and Mrs. M.W.2 agreed that they would lie to hospital staff by stating Mrs. B.R. was holding L.W.1 at the time of the drop/catch incident.

In accordance with their plan, Mrs. M.W.2 told "the lie" to staff at Windsor Regional Hospital on February 8, 2013, reporting that B.R. was holding L.W.1 at the time of the drop/catch. She repeated the lie to Dr. Deshpande, the pediatrician who assessed L.W.1 at Windsor Regional Hospital. She told the lie to her sister-in-law, L.B., a pediatric nurse who arrived at the hospital shortly after the W.s on February 8.

Owing to the severity of her injuries, L.W.1 was transported to the DMC in the State of Michigan. Mrs. M.W.2 repeatedly lied about her mother holding L.W.1 at the time of the drop/catch when she reported L.W.1's history to various DMC healthcare practitioners. Mr. and Mrs. M.W.2 and Mrs. B.R. told "the lie" to Michigan C.P.S. workers. Mrs. M.W.2 told "the lie" to members of W.E.C.A.S. during an interview days later. Mr. M.W.1's W.E.C.A.S. interview was cancelled at the request of W.E.C.A.S. Mrs. M.W.2 also told "the lie" to members of the LaSalle Police Service, L.P.S., during a February 9, 2013 interview and she lied in a subsequent L.P.S. interview on March 13, 2013, under oath. Mrs. B.R. told "the lie" under oath to members of the W.P.S. and L.P.S. during interviews, but her deceit went further than that. In response to police questioning, she says she "made up a story" with details about the drop/catch incident and even purported to "re-enact" the incident for police based on what she imagined happened.

L.W.1 remained at the DMC until February 21, 2013, where she was the subject of ongoing assessment and treatment. She presented with multisite bruising to her right abdomen, a liver laceration, a jejunal hematoma causing a bowel obstruction, and a healing fracture of a left sided rib. Shortly after her discharge from the DMC, L.W.1 was readmitted to hospital, first in Windsor and then in London, Ontario, where she underwent surgery to repair another bowel obstruction in early March 2013.

On February 8, 2013 L.W.2 was placed in kinship care with Mrs. M.W.2's brother, K.R., and his wife, L.B.. As a result of protective measures taken by W.E.C.A.S. and Michigan C.P.S., Mr. and Mrs. M.W.2's access with L.W.2 and L.W.1 had to be supervised, both in and out of hospital. Eventually, L.W.1 was also placed in kinship care with Mr. K.R. and Ms. L.B..

Despite the immediate child protection actions taken with respect to L.W.2 and L.W.1, Mr. and Mrs. M.W.2 and Mrs. B.R. continued to maintain "the lie".

Almost from the outset the W.s were advised by Michigan and Ontario child protection workers that the severity of L.W.1's injuries did not match the explanation provided for them, the drop/catch, which was confirmed by medical opinion. Mr. and Mrs. M.W.2 and B.R. continued to maintain "the lie".

Mrs. M.W.2 states that she believed Mr. M.W.1's account that he accidentally dropped and caught L.W.1. She says she believed that L.W.1 may have had a genetic disorder that made her susceptible to injury. She did not believe Mr. M.W.1 or her mother intentionally injured L.W.1 and she denied that she did so herself.

At the request of the L.P.S., Mr. and Mrs. M.W.2 gave statements to police on February 9, 2013. I have ruled Mr. M.W.1's statement inadmissible. Mrs. M.W.2 acknowledges that she lied in her statement about a number of things, including about who was with L.W.1 at the time of the drop/catch incident.

The statements were ostensibly video recorded. The equipment malfunctioned. No recordings were made.

On February 11, 2013, Detective Marc Williams of the L.P.S. assumed carriage of a criminal investigation into the cause of L.W.1's injuries. He worked in close concert with Sophie Belleau who was the primary W.E.C.A.S. worker investigating the cause of L.W.1's injuries from a child protection perspective, and Angela Suzor, Ms. Belleau's supervisor. In accordance with a written protocol between W.E.C.A.S. and the L.P.S. and other law enforcement agencies, there was complete investigatory information sharing between W.E.C.A.S. and the L.P.S. Members of those organizations continually collaborated on the strategic and tactical planning and execution of what was from the very beginning their "joint investigation".

While I will not repeat the evidence of Detective Williams, Ms. Belleau, or Ms. Suzor in great detail in these reasons, their evidence establishes the following, and I so find.

Almost from the beginning, and based on medical evidence and opinions, their respective members received from Dr. Angelilli, a physician at the DMC, the L.P.S. and W.E.C.A.S. investigations focused on the theory that L.W.1's injuries were caused by significant non-accidental blunt force trauma and proceeded on the premise that the accidental "drop/catch", as described, did not explain L.W.1's injuries.

By February 13, 2013, Mrs. M.W.2 was advised by Ms. Belleau that Dr. Angelilli was of the view that L.W.1's injuries resulted from "child abuse" and both Mr. and Mrs. M.W.2 had been informed by members of W.E.C.A.S. that supervised access would remain in place because there was an ongoing child protection investigation. Ms. Belleau encouraged Mrs. M.W.2 to get legal representation.

Early in his involvement, Detective Williams began a series of repeated attempts to re-interview Mr. and Mrs. M.W.2 owing to the "recording equipment" failure. For approximately a month, his efforts were unsuccessful despite Ms. Belleau and Ms. Suzor's intermittent encouragement to Mr. and Mrs. M.W.2 to speak with Detective Williams. Mr. and Mrs. M.W.2 were skeptical about the alleged failure of the recording equipment, and eventually, after receiving legal advice, they indicated they would not submit to a further police interview.

Mr. and Mrs. M.W.2 each had periodic discussions with Ms. Suzor and Ms. Belleau over the course of February and early to mid-March 2013, predominantly about access and supervision issues related to L.W.1 and L.W.2.

All of the evidence with respect to Mr. M.W.1's statements during his interactions with W.E.C.A.S. members was admitted at trial. In my view, none of his statements during those encounters evidences that Mr. M.W.1 intentionally applied force to L.W.1 on February 6, 2013, or at all. Mr. M.W.1 did express frustration with respect to certain access issues; he raised some questions about a planned W.E.C.A.S. interview of L.W.2, which ultimately occurred, he expressed a distrust of the L.P.S. and ultimately he communicated an unwillingness to participate in another police interview. In my view, none of these things amount to inculpatory or exculpatory evidence, when considered in the context of the evidence as a whole, and I will not summarize the evidence of those exchanges in any greater detail.

To the extent that the content of any of Mr. or Mrs. M.W.2's statements to a member of W.E.C.A.S. impacts the assessment of their credibility, respectively, or the reliability of their evidence, I will reference those statements in more detail in due course.

Through their discussions with W.E.C.A.S. members, Mr. and Mrs. M.W.2 were of the view that W.E.C.A.S. did not accept the drop/catch as an explanation for L.W.1's injuries and generally their children would not be returned to their care until someone "confessed" to harming L.W.1. Mrs. M.W.2 says she remained hopeful that an alternative "medical or genetic condition" explanation for the injuries would develop.

On March 12, 2013, Detective Williams attended Mrs. B.R.'s condominium while M.W.2, L.W.2, and K.R. were visiting. I will comment on the evidence of this exchange further, but generally Detective Williams spoke with Mrs. M.W.2 in private and advised her that he had something he wanted her to see. She agreed to attend at L.P.S. headquarters the following day, which she did. She advised Mr. M.W.1 of her intent to attend on Detective Williams. He did not attempt to prevent her from attending.

On the afternoon of March 13, 2013, Mrs. M.W.2 met with Detective Williams for almost two hours as he laid out his theory that Mr. M.W.1 intentionally harmed L.W.1 in anger on February 6, 2013. As he did so, he showed Mrs. M.W.2 a portion of L.W.2's videotaped W.E.C.A.S. interview and referenced the content of a Chatham-Kent Children's Aid Society file related to an alleged incident of excessive discipline of a child by Mr. M.W.1 when Mr. M.W.1 was a teenager. He repeatedly reinforced the sentiment that the children would not be returned to Mrs. M.W.2's care until an explanation that was consistent with the severe nature of L.W.1's injuries was provided. He suggested that if the children were returned to the same house as Mr. M.W.1, the next thing that would happen would be that L.W.1 would die. Mrs. M.W.2 told him his statement was extreme.

Mrs. M.W.2 was sworn before the interview and despite her efforts not to do so she lied about elements surrounding February 6, 2013. In addition, generally, she defended Mr. M.W.1. She pointed to a possible undiagnosed medical condition as the cause of L.W.1's injuries and she indicated that she was not aware of any incidents in which Mr. M.W.1 harmed the children, and at trial she deposes that that was the truth, at that time.

As the interview concluded, Detective Williams encouraged her to contact him again and asked if she would encourage Mr. M.W.1 "to admit something if he did something".

It is clear that over the course of Detective Williams' investigation, his focus shifted exclusively to M.W.1 as the person responsible for harming L.W.1 through the non-accidental application of force. L.W.2's W.E.C.A.S. interview and the Chatham-Kent Children's Aid Society file appear to have influenced that development. Further, according to M.W.2's evidence, the portion of the former that Detective Williams showed her and the summary of the latter that he gave to her, eventually strongly influenced her view about the mechanism of L.W.1's injuries.

Neither L.W.2's interview nor evidence establishing the particulars of the Chatham-Kent Children's Aid Society "incident" are in evidence before me, and the limited evidence about the existence and content of L.W.2's interview and the Chatham-Kent Children's Aid Society records that was adduced in this proceeding is not admitted as, and I do not consider it to be, evidence of Mr. M.W.1's guilt. The limited evidence in that regard serves only as narrative evidence about:

a. what occurred during the course of Mrs. M.W.2's interview by Detective Williams on March 13, 2013;

b. the content of her subsequent discussions with Mr. M.W.1 on March 13, and 14, 2013; and

c. as part of the evidence of Mrs. M.W.2's potential motive to fabricate a "confession" that she alleges Mr. M.W.1 uttered to her on March 14, 2013.

I have only considered the limited evidence of L.W.2's interview and the existence of the Chatham-Kent Children's Aid Society file as context for the evidence about Mrs. M.W.2's reaction to those things and not as proof of the truth of the "utterances made" in that material or in Detective Williams', or any other witness' summary of that material.

On March 13, 2013, Mrs. M.W.2 left Detective Williams' interview to attend a meeting with Mr. M.W.1 and their family law lawyer. After that meeting, the W.s were of the view that the prospect of L.W.2 and L.W.1 returning to the W. home would improve if Mr. M.W.1 moved out of the family's residence.

On the night of March 13, 2013, Mrs. M.W.2 told Mr. M.W.1 she was unhappy in their relationship and she disclosed that she harboured a relatively long standing plan to leave him. They also discussed the "new" information that was provided to her by Detective Williams. In response to that information, Mr. M.W.1 maintained that he dropped and caught L.W.1 on February 6. By the end of the conversation, they agreed that Mr. M.W.1 would move out, although Mrs. M.W.2 states that she did not believe Mr. M.W.1 took their discussion about moving out seriously.

On the afternoon of March 14, 2013, Mrs. M.W.2's father came to the W. home. Mrs. M.W.2 states that she told her father about the content of her interview with Detective Williams the previous day. When Mr. M.W.1 arrived home from work, Mrs. M.W.2 and her father talked to him for approximately an hour about Mr. M.W.1 leaving the family home and they asked him a number of times about the cause of L.W.1's injuries. He consistently repeated the drop/catch narrative.

After Mrs. W.'s father left, she eventually went to the W.s' bedroom. Mr. M.W.1 followed her. Mrs. M.W.2 says that he was crying and he admitted that he was angry and he squeezed L.W.1 on February 6, 2013. Mr. M.W.1 denies that he confessed to harming L.W.1. He agrees that he followed Mrs. M.W.2 to the bedroom but indicates that he told her, for the first time, that he did not understand how L.W.1's injuries could have been caused by the drop/catch, to which she did not respond.

Mrs. M.W.2 did not report the alleged confession to anyone on March 14, 2013. On March 15, 2013, she went to her brother's house and told him, L.B., and her father about the confession. She then attended the L.P.S. headquarters and spoke with Detective Williams. She recanted her previous "lie" and advised Detective Williams that Mr. M.W.1 had confessed to intentionally harming L.W.1 on February 6, 2013.

Mr. M.W.1 was arrested on the afternoon of March 15, 2013 and charged with offences related to February 6, 2013 as well as L.W.1's previous skull fracture and throat lacerations. The latter two charges were subsequently withdrawn.

After his arrest, Mr. M.W.1 was interviewed by Detective Williams on March 15, 2013 for nearly three hours. Many of Detective Williams' questions were long in form: setting out his theory of the case; suggesting Mr. M.W.1 would not see his children unless he took responsibility; and advising Mr. M.W.1 that his family members "knew what happened" and "they were judging him". Detective Williams also told Mr. M.W.1 that the police wanted to help but he needed to take responsibility. Mr. M.W.1 said very little during the interview except to assert his right to silence. In my view, nothing inculpatory or exculpatory arises out of Mr. M.W.1's interview with Detective Williams on March 15, 2013 or from any of his discussions with Detective Williams prior to that time. As a result, I do not intend to review the evidence of their exchanges in any greater detail.

Eventually, Mr. M.W.1 was released from custody on March 15, 2013 with conditions that included non-association with Mrs. M.W.2. Mrs. M.W.2 was made aware of those conditions by police on March 15, 2013. Nonetheless, Mr. and Mrs. M.W.2 engaged in a series of text message exchanges and at least one phone call after his release. The Crown contends that Mr. M.W.1's text messages to Mrs. M.W.2 on March 15, 2013 are inculpatory. Mr. M.W.1 deposes to an innocent explanation for those messages, at least for the explanations he can recall.

On March 19, 2013, Mr. M.W.1 was arrested for breaches of his March 15, 2013 conditions of release and subsequently interviewed by L.P.S. Detective Sergeant Beaudoin, initially about the breaches and later about the March 15, 2013 charges. Mr. M.W.1 declined to answer most of Detective Sergeant Beaudoin's questions about the subject matter of the March 15, 2013 charges. In my view there is nothing of an inculpatory or exculpatory nature that arises out of Mr. M.W.1's responses to Detective Sergeant Beaudoin's questions and I will not summarize the evidence of their exchange in any greater detail.

L.W.1's injuries eventually healed completely and she is now a healthy little girl. L.W.1 and L.W.2 remained in their kinship placement for almost two years and were eventually returned to Mrs. M.W.2's care. L.W.1 was never diagnosed with a genetic disorder or underlying medical condition that accounted for her history of ongoing injuries up to February 8, 2013.

The parties agree that the credibility of Mr. M.W.1, Mrs. M.W.2, and Mrs. B.R. and the reliability of their evidence, respectively, are critical issues in the disposition of the count before me.

Prior to considering their evidence in detail, I remind myself that the assessments of the evidence of Mr. M.W.1 and the evidence of other witnesses, particularly but not limited to Mrs. M.W.2, are not to be approached on a comparison basis wherein I must determine whose evidence I prefer. Criminal trials cannot be approached as credibility contests where the trier of fact chooses which side gave a better account or which side is to be believed. The trial judge must consider all of the evidence before a conclusion can be reached on the acceptance or rejection of any part of the evidence.

Further, my reasoning leading to verdict must accord with the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

Specifically, if I accept Mr. M.W.1's evidence that the accidental drop/catch incident occurred, in fact, and that he did not intentionally apply traumatic force to L.W.1 on February 6, 2013, he is entitled to an acquittal.

If I do not accept that aspect of his evidence but after considering his evidence and any other defence evidence, in the context of the evidence as a whole, I am left with a reasonable doubt as to his guilt, he must be found not guilty.

Even if the evidence of the accused and other defence evidence does not leave me with a reasonable doubt when considered in the context of the evidence as a whole, I may only find Mr. M.W.1 guilty if the remainder of the evidence, that I do accept, establishes his guilt beyond a reasonable doubt.

With those principles in mind, I will now review the evidence of Mrs. M.W.2, Mrs. B.R., Dr. Deshpande, Dr. Angelilli, Dr. Bütter, and Mr. M.W.1 in detail. The viva voce evidence admitted into trial obviously extends beyond those witnesses and I have considered the evidence of all of the witnesses, and the exhibits, and the evidence of each witness within the context of the totality of the evidence before reaching any determinations about what aspects of the evidence I accept and which I reject. However, the thrust of the evidence relied on by the parties in their submissions comes from the foregoing witnesses, with the caveat that some aspects of the W.E.C.A.S. witnesses' evidence impacts on the assessment of Mr. and Mrs. M.W.2's credibility. I have considered that evidence, together with all the other evidence, in arriving at my findings in this matter. Generally, the contextual background that I have outlined incorporates the essential evidence of the various witnesses whose evidence I do not detail below.

Two additional points. Mr. and Mrs. M.W.2 each gave evidence with respect to text messages that passed between their cell phones at various times. Each identified sending and receiving the respective messages that passed between them. I was not alerted to any issues with respect to the authenticity or accuracy of the logs of the text messages "sent to and from" their respective cell phones, as produced by Telus Communications Company. The respective logs have been admitted as evidence at trial as Exhibit Number 7, Mrs. M.W.2's log; and Exhibit Number 16, Mr. M.W.1's log. I will expressly refer to certain text message exchanges during the course of these reasons.

Second, the copious volume of documentation with respect to L.W.1's post February 6, 2013 medical assessments and treatments was filed as a lettered exhibit on the voir dire for identification purposes but the medical documentation was not adduced as evidence at trial. The only medical evidence before me comes from the viva voce evidence of the physicians who testified and certain anatomical diagrams which Mr. Goulin helpfully provided, which were then explained by Dr. Bütter in her evidence.

With that I will turn to the evidence, beginning with M.W.2.

EVIDENCE

Evidence of M.W.2

As I will explain later, there is good reason to approach Mrs. M.W.2's evidence with caution. She testified to the following.

Generally, M.W.2 and M.W.1 were married on April 24, 2004. They separated on March 15, 2013. Together they have two children: L.W.2, born […], 2009; and L.W.1, born […], 2012. Prior to separation the family resided in a residence in LaSalle, Ontario.

Before L.W.1 was born, Mrs. M.W.2 worked as a teacher. She took a six month maternity leave after L.W.1's birth and returned to work as a supply teacher the week of February 4, 2013. Mrs. M.W.2 agrees that from the time of her birth until February 8, 2013 L.W.1 was "rarely out of her sight". Mrs. M.W.2 was L.W.1's primary caregiver and was primarily responsible for feeding her.

Mrs. M.W.2 is very close with her mother, B.R.. Prior to February 8, 2013 Mrs. B.R. consistently helped Mrs. M.W.2 care for L.W.2 and L.W.1.

In describing Mrs. B.R.'s relationship with Mr. M.W.1 at trial, Mrs. M.W.2 indicates that "they seemed to like each other," which is inconsistent with her preliminary hearing evidence that her mother and Mr. M.W.1 did not have a good relationship.

Up to February 8, 2013, L.W.1 had limited contact with Mr. M.W.1 on weekdays because of his work schedule. Mr. M.W.1 typically left for work at 6:30 a.m. and arrived home shortly before 5:00 p.m. He did not provide care for L.W.1 before he left for work but he did when he arrived home in the evenings, although L.W.1 typically napped from 5:30 p.m. to 9:30 p.m. Sometimes Mr. M.W.1 would play with L.W.1 at 9:30 p.m. when she woke up.

Within six weeks of birth, L.W.1 became continuously agitated. She often cried and she ate substantially less than was age appropriate. Mrs. M.W.2 thought she had colic. She did not exhibit any bruising at that time.

Mrs. M.W.2 was happy, stable, and relaxed after L.W.1's birth. However, once L.W.1's disposition changed in September 2012 both Mr. and Mrs. M.W.2 were distressed, particularly because she would not eat much. They tried changing L.W.1's formula without success. Mrs. M.W.2 routinely held L.W.1 in her arms from 1:00 p.m. to 7:00 p.m. to comfort her. She became very stressed over L.W.1's feeding issues. Sometime in September 2012, L.W.1 began to resist being fed by Mr. M.W.1, which continued until February 2013.

From its beginning, Mr. and Mrs. M.W.2's relationship was plagued by frequent arguments that strained their marriage. As the feeding issues with L.W.1 developed, they argued even more. Mrs. M.W.2 felt that she was in "an emotionally and verbally abusive relationship." She felt the marriage was strained for many years and she thought about leaving Mr. M.W.1 many times, although she never advised Mr. M.W.1 about those thoughts.

In October 2012, Mrs. M.W.2 formed a plan to leave Mr. M.W.1 and targeted September 2013 as the anticipated date of separation in order to allow her to "get a nest egg together" and because L.W.2 would be in school at that time. She intended to have the girls live with her. She did not disclose her plan to Mr. M.W.1.

Approximately a week to a week and a half after L.W.1's feeding issues began, Mrs. M.W.2 discovered a "squishy" area on the right side of L.W.1's head which caused L.W.1 to flinch if it was touched. She consulted with her sister-in-law, L.B., a pediatric nurse and someone she was very close to, who examined the area and told her to bring L.W.1 to the hospital. Mr. and Mrs. M.W.2 took L.W.1 to hospital at approximately 11:00 p.m. X-rays were performed. They were advised the results were negative. L.W.1 was discharged.

The following day they re-attended hospital at the staff's request. They were advised that L.W.1 had a small skull fracture in the sensitive area without internal damage. They were asked about the cause of the fracture. The only possible explanation that came to Mrs. M.W.2 was an incident that occurred three days before they originally attended the hospital in which L.W.2, while holding a toy brush, bent over to kiss L.W.1 on the head and the brush came into contact with L.W.1's head. Mrs. M.W.2 says the doctor advised them that the explanation was plausible and neither W.E.C.A.S. nor police were called that evening.

Mrs. M.W.2 returned L.W.1 to hospital the following day, September 20, 2012, for follow-up. By that time W.E.C.A.S. had been contacted and Mrs. M.W.2 met with W.E.C.A.S. case worker, Sophie Belleau, as well as the hospital social worker and the attending physician.

Ms. Belleau asked questions about L.W.1's home life and about how the injury occurred. Mrs. M.W.2 felt very nervous about W.E.C.A.S. being involved because it had the power to potentially apprehend her children, a result that she feared.

Mrs. M.W.2 advised Ms. Belleau about the brush incident and told her she thought it might have caused the fracture. L.W.1 underwent further testing which was negative. Ms. Belleau arranged for a home assessment at the W. home and discussed ways to improve L.W.1's safety around L.W.2. Ms. Belleau did not conduct any further follow-up visits as a result of that incident.

From September 17, 2012 to November 9, 2012, Mrs. M.W.2 maintained detailed logs with respect to L.W.1's activities, including, among other things, the times when she fed, voided, and passed gas with detailed descriptions of those activities. Almost all the entries in the book were made by Mrs. M.W.2 with Mr. M.W.1 contributing a small amount.

Between the end of September 2012 and Thanksgiving in October of 2012, Mrs. M.W.2 observed a bruise on the right side of L.W.1's abdomen and asked Mr. M.W.1 about it. He told her that he had been pushing on L.W.1's stomach to help her poop and asked her if that could have caused the bruise. As a result of their ensuing discussion, Mr. M.W.1 agreed not to press on L.W.1's stomach anymore.

A new bruise was identified on the Thanksgiving weekend in October 2012. The W.s had travelled from Windsor, Ontario to Chatham, Ontario to visit relatives. While there, Mr. M.W.1's grandmother noticed a bruise on the left side of L.W.1's chin approximately one-half inch in diameter. Mrs. M.W.2 did not notice it until it was pointed out to her. Mr. M.W.1's grandmother suggested the bruise could have been caused by L.W.1's soother pressing up against her face while she slept during the car ride, which seemed reasonable to Mrs. M.W.2. Mrs. M.W.2 did not do anything herself to cause the bruise.

Generally, around the time of that incident, Mr. M.W.1 told Mrs. M.W.2 that he had observed bleeding under L.W.1's tongue.

Overall, after L.W.1's feeding issues began, Mrs. M.W.2 felt very stressed, tense, and anxious. She was having a hard time sleeping. She was continuously researching potential causes for L.W.1's eating difficulty.

On October 18, 2012, she and L.W.1 attended on Dr. Doyle, Mrs. M.W.2's family physician, to discuss a recent change in L.W.1's formula and her own anxiety. Before seeing Dr. Doyle, Mrs. M.W.2 filled out a post-partum depression questionnaire with a nurse but did not discuss it with the doctor. During the appointment, Dr. Doyle observed the bruise on L.W.1's chin and rejected the explanation that it was related to L.W.1's soother. She also detected red marks on L.W.1's chest.

Dr. Doyle immediately sent Mrs. M.W.2 to the emergency room with L.W.1 and a sealed envelope, and advised her that W.E.C.A.S. would be contacted. Mrs. M.W.2 advised Mr. M.W.1 that she had been sent to the hospital and he attended as well.

At the hospital, L.W.1 was assessed by Dr. Sabga, who advised that the chest markings were superficial. However, he also observed lacerations at the back of L.W.1's throat and asked Mrs. M.W.2 about the cause. She did not know and she was not aware of the lacerations until that assessment. Generally, around that time, L.W.1 was still bottle feeding but Mrs. M.W.2 had used a plastic eye dropper on two occasions to get some food into her. When she did so she put the end of the dropper in L.W.1's mouth and pushed it to her cheek. She did not use force. She does not think that Mr. M.W.1 had fed L.W.1 with an eye dropper at any time prior to October 18, 2012.

Eventually, W.E.C.A.S. workers, including Ms. Belleau, and police officers arrived at the hospital. When asked about the cause of the lacerations, Mrs. M.W.2 told W.E.C.A.S. workers about feeding L.W.1 with an eye dropper. She speculated that she may have put the dropper too far down L.W.1's throat. She did not report Mr. M.W.1's observations of bleeding under the tongue. Dr. Sabga referred L.W.1 to an outpatient clinic for her feeding issues for the following day and L.W.1 was released from hospital.

The next day Mrs. M.W.2 and L.W.1 attended the clinic and Mrs. M.W.2 was advised that L.W.1's feeding issues were due to the lacerations in her throat.

Sophie Belleau attended a follow-up appointment at the W.'s home. Mrs. M.W.2 disclosed her "mood issues" to Ms. Belleau and observed that Dr. Doyle had not followed up with respect to the post-partum questionnaire she had previously completed. Ms. Belleau asked Mrs. M.W.2 if she was suicidal. In response, Mrs. M.W.2 advised her that she "wanted to be somewhere else". She denied suicidal ideation and had no plan in that regard. Subjectively, Mrs. M.W.2 felt a considerable amount of stress because she could not feed her child and there was stress, tension, and fighting going on in the home. However, she did not tell Ms. Belleau about the acrimonious state of her marriage. Instead, Mrs. M.W.2 led her to believe that her marriage was good. Ms. Belleau called Dr. Doyle's office and set up an appointment for Mrs. M.W.2 for potential post-partum depression and she imposed a safety plan that did not permit Mrs. M.W.2 to be alone with the children in their home unless another adult was present at all times.

Mrs. M.W.2 says she was not alone with the children from October 18 to October 25, 2012. However, she noticed additional bruising on L.W.1's body during that time, including on both knees. She was extremely concerned about the bruising and she did not know what was causing it. L.W.1 was not old enough to crawl. She showed the bruises to Mr. M.W.1 at that time. Through Ms. L.B., arrangements were made for L.W.1 to be assessed by pediatrician Dr. Morgan on October 25, 2012. According to Mrs. M.W.2, Dr. Morgan stated there might be a "genetic" explanation for the bruises and testing in that regard would be appropriate when L.W.1 was six months old. Mrs. M.W.2 "latched on" to that idea and "fixated on" it as the cause of L.W.1's injuries.

At the end of October of 2012, Dr. Doyle diagnosed Mrs. M.W.2 with post-partum depression and high anxiety and prescribed a two week course of Cipralex. Mrs. M.W.2 took all the medication as originally prescribed. She saw Dr. Doyle a short time later and completed another post-partum questionnaire and scored low. Dr. Doyle prescribed a further six week course of Cipralex. Mrs. M.W.2 did not believe that she needed more medication because things were "settling down" in the household and L.W.1's feeding was improving. She did not refill the prescription. She did not tell Dr. Doyle or Ms. Belleau about her decision in that regard. However, she did tell Mr. M.W.1 who agreed with her decision.

By mid-November 2012, things had improved. By that time, Mrs. M.W.2 had been advised that genetic testing for L.W.1 would be arranged once she was six months old. L.W.1's feedings improved. A nurse from Healthy Mothers Healthy Babies had attended the W. home two times to weigh L.W.1. W.E.C.A.S. closed its file in November 2012.

On November 28, 2012, Mrs. M.W.2 discovered multiple bruising and red marks on L.W.1's legs, which she reported to Mr. M.W.1 that morning in a text message exchange. In his texted response, Mr. M.W.1 queried whether "that was" the reason L.W.1 was upset when he was holding her and he speculated that he may have been bruising or pinching L.W.1 without realizing it. Mrs. M.W.2 expressed concern because L.W.1 had an upcoming doctor's appointment and she had a bruise, she was not eating, and she bled again. Mr. M.W.1 responded with the following text, still on November 28, 2013:

Mr. M.W.1:

"If I did this accidentally I am super sorry I didn't mean to hurt her if I did and I don't want to cause you any unnecessary stress."

Mrs. M.W.2 does not recall the specifics of the bleeding she referred to in her November 28, 2012 text to Mr. M.W.1. She does recall two instances where L.W.1 was bleeding under her tongue and she subsequently advised Dr. Morgan about them.

On November 30, 2012, Mrs. M.W.2 was still concerned about taking L.W.1 to an upcoming appointment with Dr. Morgan. Through a text message exchange that day, Mrs. M.W.2 advised Mr. M.W.1 that L.W.1 had "a lot of bruises on her body" and asked if she should reschedule her pending doctor's appointment. She was concerned W.E.C.A.S. would be called. Mr. M.W.1 advised her to wait until Monday and if the bruises were still there to reschedule the appointment. Mrs. M.W.2 brought L.W.1 to her scheduled appointment with Dr. Morgan on December 3, 2012.

On December 17, 2012, Mrs. M.W.2 sent a text message to Mr. M.W.1 and advised him, in effect, that she was relieved that the nurse from Healthy Babies cancelled an appointment to weigh L.W.1. For his part, Mr. M.W.1 replied that he hoped the nurse would still come in to weigh L.W.1 at some point.

Mrs. M.W.2 does not recall discovering any additional bruising on L.W.1 from the time she saw Dr. Morgan on December 3, 2012 until she noticed a bruise on the right side of L.W.1's abdomen over the weekend of February 2nd to 3rd. L.W.1 was scheduled for her six month follow up with Dr. Morgan on February 4, 2013. Mrs. M.W.2 believes the bruise was caused when L.W.2 leaned over to kiss L.W.1 while L.W.1 was buckled into her swing. That bruise, the so-called "buckle bruise", was rectangular and approximately two inches by one inch with four white dots, one in each corner, which was consistent with the shape of the swing buckle. Mrs. M.W.2 saw the bruise and showed it to Mr. M.W.1 some time before she and L.W.1 attended with Dr. Morgan on February 4, 2013. Dr. Morgan saw the bruise during the course of the appointment and advised Mrs. M.W.2 that the "buckle" explanation was a possible cause. According to Mrs. M.W.2, Dr. Morgan did not arrange any follow-up for the bruise, but she did indicate the genetic testing should be arranged because of L.W.1's age. Mrs. M.W.2 denies that she caused the buckle bruise.

Mrs. M.W.2 returned to work as a supply teacher in early February 2013.

She does not recall anything significant happening on February 5, 2013. She did not work that day and was home with L.W.2 and L.W.1.

Turning to the events of February 6, 2013, Mrs. M.W.2 was at home with L.W.1 and L.W.2 in the morning and she did not observe any bruises on L.W.1 other than the "buckle bruise" at that time.

Mrs. B.R. was alone with the children for four hours in the afternoon because Mrs. M.W.2 was called in for a half day of work. Mrs. M.W.2 returned home before Mr. M.W.1 and she and Mrs. B.R. started to make dinner. Mrs. M.W.2 fed L.W.1 before Mr. M.W.1 arrived home from work.

L.W.2 had a swimming lesson between 5:00 and 5:30 p.m. Mr. M.W.1 agreed to stay home with L.W.1 while Mrs. M.W.2, Mrs. B.R., and L.W.2 went to the lesson. Mr. M.W.1 was going to continue with meal preparation while they were gone.

When they returned from the swimming lesson at 5:45 p.m., Mrs. M.W.2 immediately noticed that L.W.1 appeared "pale and sickly" as she sat in her swing in the kitchen. Mrs. M.W.2 asked Mr. M.W.1, "What happened?" Mr. M.W.1 said that he was carrying L.W.1 and she wiggled out of his arms and fell but he caught her. After that she threw up two times. Mrs. M.W.2 asked for details of what happened and specifically asked if L.W.1 was "jarred". Mr. M.W.1 did not provide many details at that time. Eventually he added a few details like, "I was getting her a bottle." L.W.1 normally slept between 5:30 and 9:30 p.m. so Mrs. M.W.2 put her down in the crib without checking her for bruises, and she slept.

As Mrs. M.W.2 continued to prepare dinner or during the course of dinner, Mr. M.W.1 leaned in and whispered to her, "There is a bruise and it's big." She asked him, "How big?" and "Where?" He said "big" and "the stomach". L.W.1 was sleeping. Mrs. M.W.2 said she would check her when she woke up. She did not tell Mrs. B.R. about the bruising, and after they ate Mrs. B.R. left.

At approximately 9:30 p.m. Mrs. M.W.2 changed L.W.1 and saw "the bruise" for the first time. It covered the majority of the right side of L.W.1's abdomen and was red and approximately four inches by four inches in size. She also noted speckled bruising about L.W.1's left side. Mr. M.W.1 came into L.W.1's room and Mrs. M.W.2 asked him, "Did you do anything to hurt her?" He said, "No." She told Mr. M.W.1 two times "If you did something to hurt her you are in a lot of trouble." Mr. M.W.1 stated that he did not do anything, instead L.W.1 fell and he caught her.

Mrs. M.W.2 tried to feed L.W.1 at that time but she threw up the formula. She attempted to feed L.W.1 again between 12:30 a.m. and 1:00 a.m. and L.W.1 vomited again. The vomit was more yellow. Mrs. M.W.2 stayed up with her until 3:30 a.m. Then Mr. M.W.1 cared for L.W.1 until 5:30 a.m. while Mrs. M.W.2 slept.

Mr. M.W.1 left for work at approximately 6:30 a.m. on February 7, and Mr. and Mrs. M.W.2 engaged in a text message exchange starting at 7:38 a.m. in which Mrs. M.W.2 advised him that she was scared, L.W.1 was continually vomiting and she questioned whether L.W.1 had "internal damage". Mr. M.W.1 suggested taking L.W.1 to the doctor but Mrs. M.W.2 was concerned about W.E.C.A.S. being called. Mr. M.W.1 indicated W.E.C.A.S. would be called, but L.W.1 needed to be okay and he indicated he would take her to a doctor if her condition did not improve. He advised her that he did not think she had internal damage and texted:

Mr. M.W.1:

"I must have grabbed her really hard to leave that big of a bruise on her and to upset her stomach for this long."

Mrs. M.W.2 texted a question about how high L.W.1 fell from and he texted, "Chest level at highest." Ultimately, Mr. M.W.1 left work early and brought home Pedialyte, which they intermittently gave to L.W.1 in small doses. Mrs. B.R. came over to help and stay the night.

Although L.W.1 continued vomiting that evening, Mrs. M.W.2 did not seek medical attention for her because she did not think her condition was as serious as it turned out to be. L.W.1's vomit turned a more green colour. At 9:30 p.m., Mrs. M.W.2 called TeleHealth Health service and was told that the green vomit might be bile and she should seek medical attention within four to five hours. Mrs. M.W.2 still did not take L.W.1 to the hospital because of her fear over W.E.C.A.S. involvement. L.W.1 woke up at approximately 2:30 a.m. on February 8 and rapidly vomited green bile three times. Finally the W.s decided to take her to hospital.

As they were getting ready to go, Mrs. B.R. suggested that they report that she was holding L.W.1 at the time of what was referred to as the "drop/catch", otherwise W.E.C.A.S. would take their children away. Mr. M.W.1 said, "No. We have to tell the truth."

Mrs. B.R. remained with L.W.2 at the W. home. On the way to hospital, Mrs. M.W.2 told Mr. M.W.1 that "they should say that her mother was holding L.W.1 at the time of the drop/catch" because of her concerns about W.E.C.A.S. Mrs. M.W.1 agreed. They did not work out the details of what was referred to as "the lie", where the identity of the person holding L.W.1 at the time of the reported drop/catch was misrepresented. In the weeks to come Mrs. M.W.2 repeated "the lie" to a number of individuals including:

a. staff members at Windsor Regional Hospital;

b. pediatrician, Dr. Deshpande;

c. health care practitioners at the DMC;

d. members of Michigan C.P.S.;

e. members of W.E.C.A.S.;

f. members of the L.P.S., under oath; and

g. L.B. and K.R..

Pediatrician Dr. Deshpande assessed L.W.1 at Windsor Regional Hospital and transferred her to the DMC as a possible surgical candidate. An ambulance transported L.W.1 across the border. The W.s crossed the border on their own. On arrival at the DMC, both Mr. and Mrs. M.W.2 repeated the lie to hospital staff. No one asked for details about the incident at that time.

Late in the afternoon, they were advised that L.W.1 had four to five rib fractures, a lacerated liver, and a hematoma on her intestine. While Mr. M.W.1 returned to Windsor to get fresh clothing for himself and Mrs. M.W.2, Mrs. M.W.2 was told by DMC staff that she could not be alone with L.W.1 and she needed to leave the hospital. Mrs. M.W.2 then received a cell phone call from Sophie Belleau advising her that Michigan C.P.S. was involved in L.W.1's case and she and Mr. M.W.1 could not have unsupervised access to their children. W.E.C.A.S. placed L.W.2 in a kinship placement with K.R. and L.B..

Mrs. M.W.2 was interviewed by a C.P.S. worker on February 8, 2013, Cassandra Moon-Faqua. She repeated the lie.

Since they were not allowed to see L.W.1, Mr. and Mrs. M.W.2 did not attend the DMC on February 9, 2013. In the early evening they were invited to L.P.S. headquarters to give statements to police. On their way to the station, they agreed to maintain the lie, which Mrs. M.W.2 did.

Prior to Mrs. M.W.2's February 9, 2013 interview, LaSalle police obtained information from W.E.C.A.S. about its two prior involvements with the W. family, and Mrs. M.W.2 was questioned about those incidents. During her interview, and at a time she knew lying to police was wrong, Mrs. M.W.2, among other things:

a. acknowledged that she believed that she and Mr. M.W.1 were being investigated for child abuse;

b. denied that she hurt L.W.1;

c. repeated "the lie";

d. denied that Mr. M.W.1 or B.R. were "abusers";

e. confirmed that Ms. Belleau told her that L.W.1's injuries did not match the explanation that was provided for them;

f. suggested that she took the required amount of Cipralex prescribed by Dr. Doyle without advising police that she did not fill the second prescription;

g. described her symptoms in October 2012 as more anxiety than depression; and

h. described Mr. M.W.1 as a great dad.

On February 10, 2013, Mr. and Mrs. M.W.2 returned to DMC hospital where they had limited supervised access with L.W.1. They were each questioned by another C.P.S. worker, Pamela Traskos. During the interview, Mrs. M.W.2 denied any history of child abuse with L.W.1. She states that none of herself, M.W.1, or Mrs. B.R. hurt L.W.1. She told "the lie" again.

Mrs. M.W.2 maintained "the lie' even though she was aware of the severity of L.W.1's injuries and she was aware that medical practitioners were asking for details that she did not have. She maintained "the lie" after L.W.2 was placed in kinship because she had already told it to a number of people and she hoped if she maintained "the lie" her children would be returned.

On February 11, 2013, Mrs. M.W.2 was interviewed by Sophie Belleau and Angela Suzor at W.E.C.A.S. headquarters and she repeated "the lie". During that interview, Mrs. M.W.2 also stated that she had taken the Cipralex as prescribed although she says that "she really meant" that she took the Cipralex "as required". She also lied by describing her relationship with Mr. M.W.1 as "good" and their communication as "positive and loving". She did not disclose her plans to separate from Mr. M.W.1. She asserts that her deceit at that time was motivated by a desire to present a "team effort" between herself and Mr. M.W.1 in order to improve the chance that the children would be returned to their care, and because she did not feel that her marriage was anyone else's business.

On February 12, 2013 while Mr. and Mrs. M.W.2 were at the DMC they were approached by Detective Williams, and Mr. M.W.1 spoke to him. Afterwards, Mr. M.W.1 told Mrs. M.W.2 that Detective Williams said the recordings of their statements did not work and he wanted them to come in for another interview. Mr. M.W.1 told Mrs. M.W.2 that he did not believe Detective Williams and thought the police were trying to "manipulate the situation". He said that he was not going to be interviewed again.

Mr. M.W.1 also received a cell phone call from Angela Suzor on February 12, 2013, while the W.s were in Michigan. Afterwards, he told Mrs. M.W.2 that Ms. Suzor said, "If one of us does not confess it will not go away." Mrs. M.W.2 replied, "There is nothing to confess to because this is accidental." Mrs. M.W.2 felt Ms. Suzor was trying to bully them and use scare tactics. On another occasion, Mrs. M.W.2 spoke with Ms. Suzor who indicated that it would be "years before she would get the children back" and "the kids would not come back until she told the truth."

Mrs. M.W.2 continued to believe that L.W.1's injuries were caused accidentally and L.W.1 had a medical condition which explained her susceptibility to injury, even though she was repeatedly told that the injuries were consistent with a non-accidental cause.

Mr. and Mrs. M.W.2 retained counsel in relation to the child protection proceedings on February 14, 2013.

During an access interview with L.W.1 on February 14, 2013, Mrs. M.W.2 spoke with Dr. Angelilli, the DMC Chief of Staff, who asked her to explain L.W.1's injuries. Mrs. M.W.2 repeated "the lie". Dr. Angelilli asked her a lot of personal questions. They discussed the skull fracture and Dr. Angelilli stated that she did not view the "brush incident" as a plausible explanation. She advised Mr. and Mrs. M.W.2 about the severity of L.W.1's injuries. Mrs. M.W.2 still believed they were caused accidentally.

L.W.1 was eventually discharged from the DMC and placed in a kinship placement with K.R. and L.B.. She was readmitted to Windsor Regional Hospital in late February after vomiting again and was officially apprehended by W.E.C.A.S. at that time. On March 2, 2013, she was transported to London and ultimately underwent surgery to correct a bowel obstruction.

Mrs. M.W.2 continued to believe that L.W.1 suffered from a genetic disorder and her injuries were the result of an accidental cause.

On the morning of March 12, 2013, Mr. M.W.1 sent a text message to Mrs. M.W.2 indicating that he told Detective Williams they were not going to be interviewed again. Later that day, Detective Williams stopped at the W.'s home while Mrs. M.W.2 was there, but of her own volition she decided not to answer the door. Mr. M.W.1 never told her not to speak with police.

On March 12, 2013, K.R. and Mrs. M.W.2 took L.W.2 to Mrs. B.R.'s condominium where Detective Williams later attended unexpectedly. Mrs. M.W.2 spoke to him in the hall. He asked Mrs. M.W.2 to attend at L.P.S. headquarters because he had something he wanted her to see. He told her: that he was afraid for her and for her children; that they needed protection from Mr. M.W.1; and that he knew that she was afraid. Despite Detective Williams' stated concerns, Mrs. M.W.2 was not afraid of Mr. M.W.1 or anything else, at that time. She agreed to attend L.P.S. headquarters the following day.

Later on that day, Mrs. M.W.2 told Mr. M.W.1 she planned to meet with Detective Williams because he had new information. Mr. M.W.1 did not attempt to persuade her from meeting with him.

Beginning at 7:39 a.m. on March 13, 2013, Mr. and Mrs. M.W.2 engaged in a text message exchange in which Mrs. M.W.2 told Mr. M.W.1 that he needed to trust her. In response he texted:

"Yes I trust you I just don't like how he is trying to be sneaky about the situation if he had something to show you why didn't he bring it with H and show you yesterday"

Mrs. M.W.2 met with Detective Williams later that day. Before the interview, Mrs. M.W.2 had never seen or heard anything that caused her to suspect that Mr. M.W.1 intentionally harmed L.W.1 at any time. During their nearly two-hour long interview, Detective Williams explained in detail his theory that L.W.1's injuries resulted from Mr. M.W.1's non-accidental conduct.

Mrs. M.W.2 attempted to be noncommittal in her answers to Detective Williams concerning the cause of L.W.1's injuries and often stated "no comment". Despite her efforts not to do so, she lied to Detective Williams by repeating elements of "the lie".

Mrs. M.W.2 also challenged the medical opinions regarding suspected child abuse and instead she advanced her own genetic disorder theory.

Eventually, Detective Williams played a portion of a videotaped W.E.C.A.S. interview of L.W.2 that was conducted by Sophie Belleau. I pause to observe that the content of that video is not in evidence in this trial, and I have not relied on any evidence describing the content of that video or any portion of it as evidence that establishes Mr. M.W.1's guilt. It does not.

Detective Williams referred to a Chatham-Kent C.A.S. file related to Mr. M.W.1, which he suggested contained a prior allegation of excessive discipline against Mr. M.W.1 and he told Mrs. M.W.2 that "The past is the best indicator of the future." He did not let her see the file. The content of the file is not in evidence and its description by Detective Williams, or anyone else in the course of this trial, is not evidence of Mr. M.W.1's guilt.

Mrs. M.W.2 allows that after seeing what Detective Williams showed her, her belief that L.W.1's injuries may have been accidental may have changed. She felt that Detective Williams "thought she knew something about how L.W.1's injuries happened, which she had not disclosed". However, in response to specific suggestions by Detective Williams, she denied that L.W.1's injuries "were caused by something other than a drop/catch" and she denied that "she knew what it was and when it happened". At one point detective Williams stated, "But I think you would tell the truth if it would help you get your kids back and help your family even if it causes a bump in the road," and Mrs. M.W.2 replied, "I honestly in my heart don't believe he could hurt the kids." She denied Detective Williams' suggestion that Mr. M.W.1 told her not to talk to police and she told him that she did not feel she was in danger or that L.W.1 was in danger.

Toward the end of the interview, Mrs. M.W.2 specifically expressed suspicion over the motivation behind Detective Williams' "offer to help" and her distrust of the LaSalle Police Service and W.E.C.A.S., stating that she had been lied to by members of both of those organizations.

Detective Williams' comments during the interview left Mrs. M.W.2 with the impression that unless the police received "more answers", she was not getting her children back and W.E.C.A.S. involvement would not go away.

Mrs. M.W.2 found the content of L.W.2's W.E.C.A.S. interview shocking. She had never seen Mr. M.W.1 do the things that L.W.2 apparently acted out.

Mrs. M.W.2 left the LaSalle Police headquarters and met with Mr. M.W.1 at their family law lawyer's office for a scheduled appointment. While waiting there, Mrs. M.W.2 told Mr. M.W.1 about the portions of L.W.2's W.E.C.A.S. interview that she had observed as well as the information about the Chatham-Kent C.A.S. investigation she had received. She testifies that she had not formed any impressions at that time because she was still processing the information that was provided to her.

After meeting with counsel, Mrs. M.W.2 believed it would be easier to secure the return of L.W.1 and L.W.2 if Mr. M.W.1 moved out. Once at home, she and Mr. M.W.1 had a long conversation about the advice they received from their lawyer; the content of Detective Williams' interview; and their historical marital problems. Mrs. M.W.2 disclosed she was not happy in the marriage and that she had been contemplating separation since October 2012. Mr. M.W.1 listened more than he talked. He acknowledged they argued a lot in their relationship.

Mrs. M.W.2 told Mr. M.W.1 in detail what she saw during the course of Detective Williams' interview. She asked Mr. M.W.1 if he was sure that L.W.1 did not hit the floor or hit something else on February 6, 2013. Mr. M.W.1 repeated the drop/catch explanation. Ultimately, Mr. M.W.1 did not object to a separation, although Mrs. M.W.2 felt that he was not taking the proposed separation seriously.

On March 14, 2013 Mrs. M.W.2's father came over while Mr. M.W.1 was at work. He and Mrs. M.W.2 spent most of the afternoon talking about the problems in her marriage. Mrs. M.W.2 asked her father to help explain to Mr. M.W.1 that the separation was "real" and that he needed to leave the home.

When Mr. M.W.1 returned from work, the three of them spoke in the W.'s living room for approximately one hour to an hour and a half. They were all emotional but they did not argue and there was no tension. They discussed Mr. M.W.1 leaving the home and Mrs. M.W.2 and her father asked Mr. M.W.1 more than once to tell them what happened to L.W.1 on February 6, 2013. Mr. M.W.1 consistently repeated the drop/catch explanation. Based on the information she received from Detective Williams and her lawyer she now doubted Mr. M.W.1's explanation for L.W.1's injuries. She was also now aware that police were focusing on Mr. M.W.1 as the cause of L.W.1's injuries.

Once the conversation ended, Mrs. M.W.2's father left the W. home. Mrs. M.W.2 went into the kitchen for a few minutes and then she went into their bedroom alone.

Sometime between 6:00 and 6:30 p.m. Mr. M.W.1 came to the doorway of the bedroom. He was crying and he stated, "I did it. I lost my temper with her and I squeezed her." He had his hands over his face. He sat down on a chair in the bedroom and stated again, "I did it. I squeezed her." Mrs. M.W.2 asked, "How did you squeeze her?" Mr. M.W.1 demonstrated with his hands how he squeezed L.W.1, specifically as he if he were holding L.W.1 vertically upright and squeezing her midsection. Mrs. M.W.2 asked, "Did you punch her?" Mr. M.W.1 replied, "No. I don't know." She asked, "Did you try to feed her?" Mr. M.W.1 said, "Yeah, she wouldn't eat for me and I got mad at her and I squeezed her."

Mrs. M.W.2 asked Mr. M.W.1 if he caused L.W.1's skull fracture. He said "I don't know." She asked about the lacerations and the bruises on L.W.1's chin. Mr. M.W.1 stated, "I thought the bruises were from feeding her." Mrs. M.W.2 stated she was not mad at him. Mr. M.W.1 apologized to her. The entire conversation lasted five to six minutes.

Mrs. M.W.2 had the opportunity to tell someone about Mr. M.W.1's confession at that time if she wanted to do so. Mr. M.W.1 did not restrain her. Mrs. M.W.2 did not text or call anyone about Mr. M.W.1's confession and she did not make a note of it. Instead, she left the house and walked the dog for over an hour. She felt she needed to get out of the house and "process what was happening". When she returned home, Mr. M.W.1 was still there. She did not talk to him. Eventually she went to bed. She and Mr. M.W.1 slept in the same bed that night. She denies that she fabricated the confession in order to get Mr. M.W.1 out of the house.

The following morning, the interaction between Mr. and Mrs. M.W.2 was minimal. Mr. M.W.1 advised her that he was going to tell their family lawyer "what really happened". Mrs. M.W.2 went to Ms. L.B.'s house and told Mr. K.R. and her about Mr. M.W.1's confession. She also told her father about the confession. Then she went to the police.

Mrs. M.W.2 attended L.P.S. headquarters on the morning of March 15, 2013 and gave a video recorded statement to Detective Williams in which she admitted that she, her mother, and Mr. M.W.1 all lied about the person who was with L.W.1 when she was injured on February 6, 2013. She told Detective Williams that Mr. M.W.1 admitted squeezing L.W.1 tight when he was angry. The interview ended at 11:26 a.m. After Mrs. M.W.2 gave her statement, Detective Williams indicated that Mr. M.W.1 would be arrested and released on conditions that day.

Subsequently, Mrs. M.W.2 called Angela Suzor at W.E.C.A.S. and told her who was home with L.W.1 and what Mr. M.W.1 had allegedly told her about how L.W.1's injuries were caused on February 6, 2013. That night, Mrs. M.W.2 stayed at her father's house. Detective Williams called her at approximately 10:30 p.m. and advised her that Mr. M.W.1 had been released on conditions, which included non-association orders between Mr. M.W.1 and her and the children. A copy of his release conditions was provided to her that night.

Mr. and Mrs. M.W.2 engaged in a number of text message exchanges on March 15, 2013, both pre and post-arrest. Beginning at 9:23 a.m. on March 15, Mr. and Mrs. M.W.2 engaged in a text message exchange about attending on their family law lawyer. Mrs. M.W.2 texted they should go together. Mr. M.W.1 replied, "No need I caused all of this I should go by myself."

They subsequently exchanged text messages about Mrs. M.W.2 contacting Ms. Suzor and at 11:26 a.m., Mr. M.W.1 sent the following text message to Mrs. M.W.2:

"I think you should call Angela before we see the lawyer She may offer the kids to you if I confess or you turn me in It would be useful to call and hear what she has to say without giving her any information."

Mrs. M.W.2 did not reply.

At 1:42 p.m., Mr. M.W.1 sent the following text message to Mrs. M.W.2:

"I met with Don and told her everything that happened

How come you're not talking to me now"

Mr. and Mrs. M.W.2 engaged in the following text message exchange beginning at 11:01 p.m. on March 15, 2013, which contextually is after Mr. M.W.1 was arrested and charged with criminal offences alleging that he intentionally applied force to L.W.1 on three different occasions.

THE COURT: And I will read this as if it was a transcript but the exhibits will speak to the - the time and content of the text message.

"Mr. M.W.1: Have grabbed some of my stuff I am sorry for all of this Tell my girls I love them

Mrs. M.W.2: They know U love them Be safe Call Jason and talk with him

Mr. M.W.1: Why did you go pick up L.W.2

Mr. M.W.1: Why did you go to the police

Mrs. M.W.2: CAS told me to get L.W.2 so you could go to your mom's if you needed to and I had to go bc it was the right thing to do"

Approximately 9 minutes later, Mr. and Mrs. M.W.2 engaged in the following text message exchange:

"Mr. M.W.1: I hope you know I'm not a bad person I just need help with my problems

Mr. M.W.1: I hope all of you are not judging me I realize I am far from perfect

Mr. M.W.1: Do you know they charged me for the skull fracture and the tongue

Mrs. M.W.2: We are not judging ever You need help with your problems We are not perfect either Get the help

Mrs. M.W.2: I do now The cops came here and dropped the paperwork

Mr. M.W.1: I am going to get the help So you know we're not supposed to be talking

Mr. M.W.1: Please don't turn me in for this

Mrs. M.W.2: Yes so delete this immediately I want to make sure you're okay and you talk with someone soon

Mr. M.W.1: I am telling you to delete it too I will get the help I need Those girls mean everything to me

Mr. M.W.1: if you ever want to call you can

Mrs. M.W.2: okay

Mr. M.W.1: I am not mad for what you did I know I need help That is why I told you what happened"

In her evidence, Mrs. M.W.2 agrees that she texted "back-and-forth" with Mr. M.W.1 for over an hour after his release despite the non-association order.

Mrs. M.W.2 called Mr. M.W.1 on March 17, 2013 to advise him that L.W.1 had a stomach virus and was re-admitted to hospital. During the call, Mr. M.W.1 asked her why she went to police and she said it was the right thing to do. She told Mr. M.W.1 to get help and she told him she was concerned he would harm himself.

L.W.1 and L.W.2 were eventually returned to Mrs. M.W.2's care in December 2014. They spent a total of 22 months in their kinship placement. L.W.1 never underwent genetic testing because it was not necessary. She thrived after she was removed from Mr. and Mrs. M.W.2's care. She did not sustain any lasting injuries as a result of her liver laceration, hematoma, or bowel obstructions. She is, in Mrs. M.W.2's words, "beautiful and perfect now".

Mrs. M.W.2 denies that she has ever done anything to intentionally or accidentally harm L.W.1.

Finally, during the course of her cross-examination there were demonstrable inconsistencies between Mrs. M.W.2's trial evidence and her preliminary hearing evidence including:

1. Whether Mr. M.W.1 and Mrs. B.R. had a good relationship before February 6, 2013;

2. Whether Mrs. M.W.2 was alone with the children between October 18 to October 25, 2012 while the second W.E.C.A.S. safety plan was in effect. At trial she says she was never alone with them during that time. At the preliminary hearing she says she was alone with them most of the time. She says her preliminary hearing evidence is incorrect;

3. Whether she recalled telling her family members that she felt depressed in October 2012;

4. Whether she recalled expressly discussing "postpartum depression" with Ms. Belleau in October 2012;

5. Whether she ran or instead walked quickly to L.W.1's swing when she arrived home from the swimming lesson on February 6, 2013;

6. Whether she recalled L.W.1 wiggling more than an average infant generally or whether L.W.1 wiggled a lot;

7. Whether she was more interested in L.W.1's potential undiagnosed medical condition than she was in addressing L.W.1's current injuries when L.W.1 was admitted to the DMC on February 8, 2013;

8. Whether Detective Williams advised her that he thought Mrs. M.W.2 and her daughters needed protection from Mr. M.W.1 during their brief conversation at Mrs. B.R.'s condominium. Ultimately, she adopted her preliminary hearing evidence that he did make that statement;

9. Whether Mr. M.W.1 was "always gentle" with L.W.1 or whether he handed her back to Mrs. M.W.2 "roughly" on a couple of occasions.

THE COURT: All right, this is where I have our scheduled first break, so we'll take about a 20 minute break and come back at quarter after one.

MS. BROWN: Thank you, Your Honour.

C.S.O.: Order.

COURT REGISTRAR: Court will recess until 1:15.

RECESS

UPON RESUMING:

COURT REGISTRAR: Court is resumed. Please, be seated.

REPORTER’S NOTE: His Honour has a brief discussion with the Crown re schedule.

THE COURT: So we will go back to our decision with the evidence of B.R..

Evidence of B.R.

Mrs. B.R. is M.W.2 and K.R.'s mother and L.W.1 and L.W.2's grandmother. She is very close with Mrs. M.W.2. Historically, she had a "distant" relationship with M.W.1, who she describes as an angry man with terrible mood swings.

Mrs. B.R. consistently helped Mrs. M.W.2 care for L.W.1 and L.W.2 from the time they were born. Historically, L.W.1 was a very difficult baby to feed and she slept for overly prolonged periods of time. Mrs. M.W.2 was extremely upset by L.W.1's feeding issues and would periodically cry because of them. L.W.1's issues often left Mrs. M.W.2 exhausted and anxious.

L.W.1 suffered a skull fracture in September 2012, which led to W.E.C.A.S. involvement with the W. family. Mrs. B.R. recalls that Mrs. M.W.2 brought L.W.1 to Dr. Doyle to discuss L.W.1's issues with feeding. Mrs. B.R. went with them. Dr. Doyle noticed a bruise on L.W.1's head and sent her to the emergency room where the fracture was identified and W.E.C.A.S. was contacted.

While discussing the potential cause of the fracture, Mrs. B.R. and Mrs. M.W.2 recall that L.W.2 had tapped or bonked L.W.1 on the head with the dolls brush. Mrs. B.R., who witnessed the bonk, does not recall the attempting to hug L.W.1 while holding the brush.

Mrs. M.W.2 was terrified about W.E.C.A.S. and remained so even after it closed its file. Mrs. B.R. is not aware that W.E.C.A.S. was involved with L.W.1 a second time in October 2012 as a result of lacerations in L.W.1's throat. She does recall that at some point she saw a button mark on L.W.1's abdomen which was attributed to the buckle of her swing. She believes that she first saw that mark over Christmas in 2012 or in January 2013. The buckle mark was still on L.W.1's abdomen on February 6, 2013.

L.W.1 had a history of unexplained bruises. As a result, Mrs. M.W.2 attempted to determine if there was a family history of susceptibility to bruising. She also pursued genetic testing for L.W.1 in an effort to discover the cause of L.W.1's ongoing injuries.

Turning to the events of February 6, 2013, Mrs. B.R. stayed with L.W.1 and L.W.2 in the W.'s from 11:00 a.m. to 4:00 p.m. that day because Mrs. M.W.2 was called in as a supply teacher for half a day. During the course of the day, she fed L.W.1 and put her down for a nap. L.W.1 was engaged and actively playing when L.W.1, L.W.2, and Mrs. B.R. played with blocks that afternoon. She changed L.W.1 in the afternoon and did not observe any marks or injuries on her body.

Mrs. M.W.2 arrived home in the late afternoon and began to prepare supper. Mr. M.W.1 arrived home at approximately 4:50 p.m. L.W.2 had a swimming lesson scheduled from 5:00 to 5:30 p.m. and wanted Mrs. B.R. to attend. Mr. M.W.1 volunteered to stay with L.W.1. Mr. M.W.1 was supposed to feed L.W.1 rice pablum and a bottle, while Mrs. B.R., Mrs. M.W.2, and L.W.2 went to the lesson.

Within five minutes of returning to the W.'s home, Mrs. B.R., who had taken L.W.2 to her room, heard Mrs. M.W.2 say, "Oh, no, Mike. Oh, no." Mrs. M.W.2 then came down the hall and said, "M.W.1 had an accident with L.W.1 and there is a bruise."

Within ten minutes of returning home, Mrs. B.R. and Mr. and Mrs. M.W.2 went to L.W.1's room. Mrs. M.W.2 took L.W.1 out of her crib and removed her clothing and diaper revealing a nearly black bruise, the size of a small egg, on L.W.1's right hip and a red hand print with four fingers running across L.W.1's abdomen.

Mrs. M.W.2 asked, "What happened?" Mr. M.W.1 said, "She started to fall and I caught her." Mrs. B.R. and Mrs. M.W.2 gasped when they saw the bruise and Mrs. M.W.2 started to shake, and cry, and crumble. Her body was physically shaking. Mrs. M.W.2 grabbed the change table to control herself and to prevent herself from falling, and she said, "They are going to take her." Mrs. B.R. believes she was referring to W.E.C.A.S.

As they inspected L.W.1, Mr. M.W.1 stated that the bruise was caused as a result of an accident and that L.W.1 had "kicked off his chest", started to fall forward and he caught her before she hit the ground. Mrs. B.R. accepted Mr. M.W.1's explanation and did not ask for further details at that time. She agrees that at that time, L.W.1 was obviously injured. She does not know why they did not take her to hospital immediately. Mrs. M.W.2 was afraid that if they took L.W.1 to hospital, W.E.C.A.S. would apprehend her.

After examining the bruise, Mrs. M.W.2 dressed L.W.1. The family had dinner and Mrs. B.R. went home.

The following morning, Mrs. M.W.2 called Mrs. B.R. and reported that L.W.1 was not doing well and Mr. M.W.1 was going to come home early from work with Pedialyte. Mrs. B.R. went to the W.'s residence on the afternoon of February 7, 2013 and observed L.W.1 to be pale, whiny, and increasingly listless. L.W.1 vomited a brown substance throughout the day. Eventually, Mrs. M.W.2 called a "nurse's line" and she was advised to go to the hospital immediately if L.W.1's vomit was green.

Mrs. B.R. stayed with the W.s that night. At approximately 3:00 a.m. on February 8, 2013, Mrs. M.W.2 told Mrs. B.R. that L.W.1 vomited green bile and they were taking her to the hospital.

Both Mr. and Mrs. M.W.2 expressed fear and uncertainty about what was going to happen if W.E.C.A.S. became involved again. On her own initiative, Mrs. B.R. said, "I know how worried you are. What if you said I did it? What if you say I had an accident and it wasn't M.W.1, it was me?" She also said, "If you need to you can use me and say I did it instead of you." Mrs. M.W.2 rejected that plan because Mrs. B.R.'s hand print would not match the hand print on L.W.1's abdomen. Mr. M.W.1 did not respond to Mrs. B.R.'s suggestion at all. She specifically denies that he said words to the effect of, "Don't lie just tell them it was me."

She also asserts that she told Mr. M.W.1 that he had to tell the doctors the truth in order to help L.W.1, to which he did not reply. She did not ask Mr. M.W.1 for specific details about the drop/catch explanation at the time because Mrs. M.W.2 had already rejected her suggestion to lie about who was with L.W.1.

Mrs. B.R. proposed "the lie" in an effort to help both Mr. and Mrs. M.W.2. After being confronted with somewhat inconsistent evidence from the preliminary hearing, she clarified that she proposed and subsequently she told the lie for both of them but towards the end she only lied for Mrs. M.W.2. Mrs. B.R. would do anything for her daughter. She felt honour bound to lie for her and for Mr. M.W.1 unless and until they came forward with the truth on their own.

Later that day, Mrs. M.W.2 advised Mrs. B.R. that L.W.1 was being transferred to a hospital in Detroit because she might need surgery. At 4:00 p.m. Mrs. B.R., her son, Ken, and his wife, L.B., arrived at the DMC while L.W.1 was being evaluated. Either Mr. or Mrs. M.W.2 told her, "We said it was you." Mrs. B.R. was surprised. Although she had suggested "the lie", she felt that she was in a very difficult position because she was not aware of any details about L.W.1's accident except that she fell and Mr. M.W.1 caught her.

Eventually, the family was advised that L.W.1 had fractured ribs and a lacerated liver. Mrs. B.R. did not disclose that she was not with L.W.1 when she was injured. Approximately one hour later she was asked to speak to a Michigan C.P.S. worker, which she did. She still did not know any details about what happened to L.W.1 during the drop/catch incident. When questioned by the C.P.S. worker, in her words she "made up a story" and "described what Mr. M.W.1 had said". She lied and said that Mr. and Mrs. M.W.2 were at a swimming lesson with L.W.2. She was with L.W.1, L.W.1 kicked off her chest and fell but she caught her before she hit the ground. After she was interviewed, she and the rest of the family were advised that they had to leave the hospital. After that, her access with L.W.2 and L.W.1 had to be supervised.

On Saturday, February 9, 2013, Mrs. B.R. was contacted and interviewed by a member of the W.P.S. She still did not have any details about the drop/catch incident from Mr. M.W.1 and she had not discussed "the lie" at all with Mrs. M.W.2. She did not tell Mr. and Mrs. M.W.2 that she had been contacted for a police interview. Instead, she went to the police station where she provided a statement under oath in which she admittedly lied by stating to police that L.W.1 was with her at the time of the drop/catch. The police asked her for details about the incident. She did not have them so she made them up. She even reenacted how the incident occurred based on what she "imagined" happened.

Afterwards, she went to the W.'s residence and advised Mr. and Mrs. M.W.2 that she had just given a false statement to the police. She told them, "You can't do this to me. You can't leave me hanging here. You must tell the truth." Mr. M.W.1 replied, "We don't have to" and indicated that they had received legal advice in that regard. Mrs. M.W.2 said, "I'm sorry. I don't know what else to do." She estimates that this conversation occurred before 4:00 p.m. and neither Mr. or Mrs. M.W.2 had been interviewed by the police yet.

Shortly after that, Mrs. B.R. told her own sister and brother the truth about who was with L.W.1 at the time of the incident. Mrs. B.R. felt it was up to Mr. M.W.1 and specifically not Mrs. M.W.2 to tell the truth because he was the only one who knew what happened.

Mrs. B.R. cannot recall if she saw Mr. and Mrs. M.W.2 again during the month of February before seeing them on February 28, 2013, after Detective Williams persuaded her to participate in a second police interview. On her way to the L.P.S. headquarters to meet with Detective Williams, she stopped at the W. residence just as Mr. and Mrs. M.W.2 were pulling out of their driveway. She advised them that she was on her way to speak with Detective Williams and Mr. M.W.1 said, "Don't go. Get in the car and you can come to our lawyer's office with us." Mrs. M.W.2 did not say anything. Mrs. B.R. said, "No. I have an appointment. I have to go. He's expecting me. I want you to come and tell him what happened. Get me out of this." Mr. and Mrs. M.W.2 did not respond at all.

Mrs. B.R. then gave a statement to Detective Williams under oath and lied, stating that she was with L.W.1 at the time of the drop/catch. During the interview, Detective Williams essentially told her that if someone did not confess to injuring L.W.1, L.W.1 would not be returned to the W. home. Mrs. B.R. later shared Detective Williams comments with Mrs. M.W.2.

Approximately 2 weeks later, K.R., M.W.2, and L.W.2 came over to Mrs. B.R.'s condominium for lunch. While they were there, Detective Williams showed up and spoke with Mrs. M.W.2 outside her unit. When Mrs. M.W.2 came back inside she appeared frightened and she was crying. She said Detective Williams was going to meet with her the next day and show her something.

The next day, Mrs. M.W.2 called Mrs. B.R. and advised her that Detective Williams had shown her a video of L.W.2, which is not in evidence, and stated, "He's got to go. He's got to go. He's got to leave." Mrs. M.W.2 said her father came to the house and they spoke to Mr. M.W.1 and they asked him to leave the house.

The day after that, Mrs. M.W.2 advised Mrs. B.R. that she had attended on Detective Williams and told him "the whole truth". Mrs. M.W.2 reported that after her father left the previous day Mr. M.W.1, while upset and crying, said that he squeezed L.W.1. Of course, this is not evidence of the truth of that statement and it does not act to confirm Mrs. M.W.2's evidence about the alleged confession. Detective Williams eventually interviewed Mrs. B.R. and she admitted she was not with L.W.1 when she was injured on February 6, 2013.

Historically, Mrs. B.R. was never concerned that Mr. M.W.1 might harm L.W.1 or L.W.2. She never saw Mr. M.W.1 hurt L.W.1. She never saw Mr. M.W.1 lose his temper with his daughters and she never saw Mr. or Mrs. M.W.2 act carelessly with L.W.1.

As of February 6, 2013 Mrs. B.R. did not have any concerns about Mrs. M.W.2's care of L.W.1 or Mr. or Mrs. M.W.2's mental health. For her own part, Mrs. B.R. has not experienced any mental health issues since 2007 when, as a result of marital difficulties, she overdosed on medication on two occasions.

Mrs. B.R. has never intentionally or unintentionally harmed L.W.1. She has never intentionally or unintentionally caused any marks or bruises on L.W.1's body. She did not notice any marks or bruising on L.W.1's abdomen on February 6, 2013 before she went to L.W.2's swimming lesson.

Evidence of Dr. Ashish Deshpande

Dr. Deshpande is a pediatrician who was involved in L.W.1's care at Windsor Regional Hospital on February 8, 2013 and again in early March 2013. He was qualified to give opinion evidence with respect to the practice of pediatrics, including the diagnosis and treatment of injuries to children.

He first became involved in L.W.1's care on February 8, 2013 at approximately 6:00 a.m. when he received a call from the Emergency Room physician regarding a six-month-old infant with a history of bilious vomiting and abdominal bruising. He attended on L.W.1 at approximately 7:00 a.m. and took a history from Mr. and Mrs. M.W.2, who both provided information to him. He was advised that L.W.1 had been vomiting for two days, dating back to February 6, 2013. Initially, the vomit was non-bilious and after approximately 24 hours it turned green. While he was with Mr. and Mrs. M.W.2, he was advised that on February 6, 2013 L.W.1 was with her grandmother and she slipped from her hands. Her grandmother caught her before she hit the floor. Sometime later, her parents noticed abdominal bruises. He was advised that: L.W.1 bruised easily; she sustained a skull fracture at the age of seven weeks; there was a family history of an unspecified bleeding disorder; before her vomit turned green, L.W.1 had vomited nine times leading up to the evening up February 7, 2013; and "a few days back" L.W.1's sister leaned over her and the buckle of a swing created a bruising imprint near L.W.1's abdomen.

On examination, L.W.1 appeared lethargic. Her eyes were open but she was not making good eye contact. He did not detect signs of "shaken baby syndrome".

Given her age, L.W.1's abdomen was about six inches in diameter at the most at that time. She presented with mild generalized abdominal tenderness and she had two large bruises on the right lower quadrant of her abdomen. Both bruises were approximately three centimetres by three centimetres. He also detected a few nonspecific bruises on L.W.1's legs. Based on L.W.1's history of bilious vomiting, his impression was that L.W.1 likely had an intestinal obstruction.

Apart from his physical examination, Dr. Deshpande arranged investigations, including blood tests and x-rays. L.W.1's blood test results revealed a high white blood cell count, indicative of infection or inflammation. In addition, her measure of the liver enzyme "ALT" was approximately six times higher than normal, which suggested that L.W.1's liver was either inflamed, possibly owing to infection, or injured. In his view, the measured ALT value, in absolute terms, does not inform the determination of the duration of liver inflammation or injury. Further, the extent of inflammation that may be associated with injury does not necessarily increase with the age of the injury.

L.W.1's abdominal x-ray did not reveal the presence of "fluid levels", that are normally consistent with an intestinal obstruction. However, the upper levels of L.W.1's intestinal tract, specifically her stomach, duo denim, and jejunum were not visualized on the x-ray.

As a result of L.W.1's history of bilious vomiting, her abdominal tenderness, her blood work results, and the presence of abdominal bruising, he concluded that there was probable evidence of an intestinal obstruction or maybe an intestinal injury and he made arrangements to transfer L.W.1 to the DMC for pediatric surgical care. L.W.1 was physically transferred to the DMC between 8:30 and 9:00 a.m. on February 8, 2013, and Dr. Deshpande informed W.E.C.A.S. about the circumstances of L.W.1's presentation and her transfer.

Dr. Deshpande assessed L.W.1 again on March 1, 2013, secondary to her re-admittance to Windsor Regional Hospital on February 28, 2013. He was advised that L.W.1 had been readmitted with a history of vomiting for three days which had eventually turned bilious. She underwent investigations including x-ray, ultrasound, and blood tests. While the investigative results were somewhat equivocal, on March 1, 2013 Dr. Deshpande observed L.W.1 lying next to dark green vomit in her hospital bed, which convincingly suggested that she suffered from an intestinal obstruction. He arranged to transfer L.W.1 to the care of Dr. Bütter, a pediatric surgeon in London, Ontario.

Evidence of Dr. Mary Lou Angelilli

Dr. Angelilli is employed by Wayne State University in the State of Michigan and serves as the Chief of Staff of the DMC, Children's Hospital of Michigan, and also practices as a "Child Abuse Pediatrician" and a "General Pediatrician". She has carried on a pediatric practice for 33 years and has been specially designated as a "child abuse pediatrician" for the past seven years; however, she did not pass her most recent board certification examinations in that regard. She remains "board eligible".

In her clinical practice, Dr. Angelilli divides her time between outpatient clinics and "inpatient" child-abuse pediatric consultations.

Dr. Angelilli has extensive experience in evaluating injuries to children and in identifying the probable medical cause of such injuries and she was qualified in this proceeding to provide opinion evidence with respect to the identification of pediatric injuries and the possible cause of such injuries, such as natural disease process or traumatic injury.

Dr. Angelilli first became involved with L.W.1 on February 11, 2013 at the DMC when she was asked by L.W.1's treating physicians to evaluate her and provide an opinion with respect to whether her injuries resulted from "child abuse". I pause to note that the Crown did not seek to have Dr. Angelilli qualified to provide an opinion with respect to child abuse in this proceeding and she was specifically not qualified to give opinion evidence in that regard. As part of her consultation, Dr. Angelilli reviewed all of the DMC medical records with respect to L.W.1 which indicated, among other things, that L.W.1 presented with bruises on her abdomen together with a liver laceration, one certain rib fracture, and the possibility of six additional rib fractures. Dr. Angelilli also examined L.W.1 from "head to toe" and personally viewed the radiographic diagnostic images from L.W.1's investigations and not just the imaging reports.

During Dr. Angelilli's examination on February 11, 2013, L.W.1 appeared depressed in the sense that she was not acting like a normal child. She did not make eye contact. She did not have a lot of energy. She was just "laying there" awake. L.W.1 had an NG Tube inserted to drain acid from her stomach. She vomited anything that was fed to her.

Dr. Angelilli observed two large "sausage shaped" bruises on L.W.1's abdomen, one measuring four centimetres in length and the other measuring 2.5 centimetres in length. They were each approximately 1.5 centimetres in width. She does not recall any other bruises at the time. She identified the bruises she saw on the photographs that were marked as exhibits at trial. On examination, L.W.1's abdomen was soft and without mass, her liver and spleen did not feel enlarged and there was nothing else of note.

Dr. Angelilli viewed the images from a CT scan of L.W.1's abdomen done on February 8, 2013, which evidenced a liver laceration approximately 2.5 centimetres in length and one definitive healing left-sided rib fracture. There was also equivocal evidence of other rib fractures.

The liver laceration, and internal cut to the liver, was located at the back of the organ on the right side and was graded as a "two" on a scale of one to five with one being the least severe. The numerical grade "two" refers to the size of the laceration but does not indicate the rate at which the laceration may be bleeding. A grade two laceration can bleed at a fast rate. On the CT scan image, Dr. Angelilli observed a "small amount" of fluid in the intact "sac" surrounding the liver; but she states that not all the blood from a laceration will flow into the sac, instead blood can remain within the substance of the liver where the laceration is located.

In Dr. Angelilli's opinion, a laceration, of the kind that L.W.1 presented with, results from a traumatic injury caused by an external force applied to the abdomen or the back that causes the organ to split open. Dr. Angelilli cannot opine on the specific level of force required to cause a laceration like the one L.W.1 resisted with.

The location of the laceration on the backside of the liver is not indicative of where the force that caused it was applied. In L.W.1's case, Dr. Angelilli opines that the causal force most likely was applied from the front. Had the force been applied from the back it would have been expected to hit the posterior ribs before reaching the liver. She agrees that, in some instances, a force applied from the back can damage the liver without damaging the rear rib cage, but that result is not common and that possibility did not cause her to alter her opinion.

From her evidence of the CT scan image, Dr. Angelilli could not determine if the laceration was actively bleeding or if it had stopped. However, she felt there was evidence of internal bleeding during transit from Windsor Regional Hospital to the DMC because of a drop in L.W.1's recorded hemoglobin as measured at Windsor Regional Hospital on February 8 and compared to her measured hemoglobin level derived from blood samples subsequently taken at the DMC on the same day. The most likely explanation for the recorded drop was that L.W.1 was bleeding internally from somewhere during transit from Windsor to the DMC. The bleeding was immediate, although she is not sure of the volume of blood lost or whether the bleeding was related to the liver laceration or a jejunal hematoma which caused L.W.1's bowel obstruction.

L.W.1 also underwent an Upper GI investigation at the DMC that revealed a dilated loop of her jejunum, which is the second part of the small intestine, and a significant length of narrowed intestine beyond the dilated area. Those results were consistent with a bowel obstruction.

Dr. Angelilli opines that a liver laceration like the one L.W.1 had is consistent with a blunt traumatic blow to the abdomen. There was no evidence of penetrating trauma. She opines that the bowel obstruction resulted from trauma to the abdomen which caused intestinal bleeding and the formation of a hematoma in the jejunum. The hematoma put pressure on the intestine in a particular area and caused it to be blocked off, resulting in the obstruction.

Dr. Angelilli opines that the bruises she observed on L.W.1 were caused by trauma and resulted from something hitting her. Bruising can be caused by certain non-traumatic medical conditions but that type of bruising is not consistent with localized elongated bruises, such as the ones she saw on L.W.1. Bruising related to a non-traumatic cause would likely be present all over the patient's body and not restricted to a localized area. In addition, L.W.1 did not present with a low platelet count militating against a non-traumatic cause for her bruises. As a result of the foregoing, Dr. Angelilli eliminated a non-traumatic medical issue as the cause of the bruising that she observed on February 11, 2013.

Owing to variances in soft tissue thickness, vascularity, and skin types, "bruising" cannot be "dated" or aged other than to say with certainty that a bruise that is yellow is more than 18 hours old. If an individual is struck "really hard", a bruise can develop quickly but Dr. Angelilli has never seen a bruise develop instantly. Similarly, liver lacerations cannot be dated with precision.

Dr. Angelilli reviewed the imaging studies performed on February 8 that evidenced at least one healing left-sided rib fracture. Since the fracture was healing, it was at least seven days old on the date of the imaging study.

While Dr. Angelilli opines that the linear bruises on L.W.1's abdomen, the lacerated liver, and the intestinal bleeding, which caused the bowel obstruction were caused by blunt abdominal trauma, those injuries could have all occurred at separate times from different traumatic forces.

Dr. Angelilli opines that both liver lacerations and bowel obstructions can be considered life-threatening. Specifically, a liver laceration is a "condition of bleeding" which could continue to the point of exsanguination, in other words bleeding to death. A bowel obstruction could lead to a bowel perforation resulting in bacteria escaping into the abdominal cavity causing infection that ultimately spreads into the entire blood system resulting in death.

In cross-examination, Dr. Angelilli agrees that L.W.1 presented with a contusion about her upper intestinal area, the jejunal hematoma. She explains that as an intestinal contusion heals, it can result in abnormal narrowing of the intestine, a stricture, which eventually restricts the flow of matter through the intestine. This process may take several weeks. As the bowel narrows, the patient would eventually experience vomiting and, if left untreated, constipation but she adds, "We never wait long enough to have constipation in the case of a stricture."

Further, Dr. Angelilli agrees that:

1. L.W.1's rib injuries seem to be older than the liver injury;

2. The seventh rib fracture, which was definitive, was located in the front of the rib cage;

3. The location of the rib fracture in the front makes it less specific for "child abuse" then a fracture located in the back;

4. A rib fracture located on an infant's back is more consistent with "squeezing" with thumbs on the chest and fingers on the back of the infant;

5. There was no indication that L.W.1 had been "shaken";

6. The CT scan evidenced a small amount of fluid that was enclosed within the capsule surrounding L.W.1's liver but the specific type of fluid was not discernible on the imaging study. The fluid was suspected to be blood but that could not be confirmed on imaging;

7. L.W.1's liver eventually "healed" without surgical intervention;

8. The combination of a liver laceration, a bruise on the abdomen, and a rib fracture were strongly suggestive of non-accidental blunt trauma;

9. While the liver laceration could not be aged by imaging, she felt that it was "recent" because of the drop in L.W.1's hemoglobin levels on February 8, 2013;

10. She did not assume that all three of the presenting injuries occurred at the same time. All three injuries, the liver, rib, and intestine, could have occurred at different times. The nature of the injuries, combined with the lack of an explanation, caused her to believe that they resulted from non-accidental blunt trauma, whether at the same time or not;

11. The location of the rib fracture on L.W.1's left side and the liver injury on the right side, together with the age of the rib fracture, militates against those injuries having occurred at the same time;

12. She does not know whether it is possible that the liver laceration existed prior to February 6, 2013 with the loss of fluid occurring at a relatively low rate;

13. The blow that caused the liver laceration did not necessarily cause the jejunum injury.

She disagrees that L.W.1's liver laceration was "not life-threatening" because there was no bleeding per se from her liver. She felt it was very likely that L.W.1 had some bleeding within the substance of her liver.

She agrees that the "bruising" reported to have been observed on the first or second of February 2013, specifically the buckle bruise, could be associated with "internal injury", but she is unable to state whether that bruising was associated with the injuries with which L.W.1 presented at the DMC.

Dr. Angelilli interviewed Mr. and Mrs. M.W.2 on February 12, 2013, with most of the information coming from Mrs. M.W.2. She does not recall asking Mr. M.W.1 anything about L.W.1's injuries.

During the interview, Dr. Angelilli did not feel that Mrs. M.W.2 was totally balanced although she could not determine if she presented with a diagnosable mental health condition. Dr. Angelilli observed that Mrs. M.W.2 documented details of every aspect of L.W.1's presentation including feeding, sleep time, spit ups, and gas, which she found to be "unusual and obsessive". Mrs. M.W.2 was focusing on the details of "what was happening with L.W.1" to the exclusion of recognizing the "big picture" of how sick L.W.1 actually was. She also characterized Mrs. M.W.2 as a good mom who historically was doing everything she was supposed to do and bringing the baby in for medical assessments at appropriate times. However, in the days preceding L.W.1's attendance at the DMC, Mrs. M.W.2 seemed obsessed "with numbers" and not with the overall picture of the child's serious injuries.

During their interview, Mrs. M.W.2 disclosed L.W.1's history including the skull fracture, the October 2012 throat lacerations, and L.W.1's past history of multisite bruising.

Dr. Angelilli recorded that Mrs. M.W.2 had "no explanation" for the skull fracture because, in her view, the "brush incident" explanation that was offered did not explain the otherwise very suspicious injury. She also felt that L.W.1's history of bruising was "highly suspicious for a non-accidental cause" because young infants are non-ambulatory.

Dr. Angelilli states that the history of unexplained injuries in L.W.1's mouth left her to wonder "what somebody might be covering up". Throat lacerations are not consistent with the normal use of an eyedropper to feed an infant, but such lacerations could be inflicted by an eyedropper if it was "jammed down" the infant's throat.

Based on the unusual level of detail about L.W.1 that Mrs. M.W.2 provided, Dr. Angelilli questioned her emotional state and recommended a psychiatric evaluation, if it was feasible. She felt that Mrs. M.W.2's behaviour was extreme, that she appeared to be obsessed with details about L.W.1, and that she provided rambling answers to questions posed to her. Mrs. M.W.2 seemed to focus on "less obvious and even implausible causes of injury to L.W.1" as opposed to the obvious. She thought that Mrs. M.W.2's atypical behaviour could be related to what was happening to the baby; however, she was not concerned that Mrs. M.W.2 had done something to the baby. She recommended the psychiatric evaluation because she felt a mental health professional might be able to elicit an explanation for Mrs. M.W.2 is atypical behaviour.

Dr. Angelilli was also concerned that L.W.1 was not taken to hospital sooner, given the severity of her injuries. She observed that in the last 12 hours before L.W.1 was taken to hospital, Mr. M.W.1 was also at home. She did not understand why he and Mrs. M.W.2 "could not see the big picture" with respect to L.W.1's injuries.

Dr. Angelilli does not recall Mrs. M.W.2 telling her that she believed that the bruising which L.W.1 presented with was superimposed on a previous bruise from a seat buckle, although she testified to the contrary at the preliminary hearing. At trial, she agrees that it does not make much sense that a four-year-old leaning into a swing would cause a "buckle bruise" on an infant in the swing. A gentle push would not normally bruise a child.

Evidence of Dr. Andreana Bütter

Dr. Bütter is a pediatric surgeon. She performed surgery on L.W.1 in order to correct a bowel obstruction on March 2, 2013 at the Children's Hospital, London Health Sciences in London, Ontario. She has been on staff at that hospital since September 2005 in her capacity as a pediatric surgeon and periodically as a pediatric trauma team leader. She is board certified by the Royal College of Physicians and Surgeons in adult and pediatric surgery. She is also an American board-certified pediatric surgeon.

Dr. Bütter has performed between 3000 to 4000 pediatric surgeries at Children's Hospital in London, and she also maintains a clinical practice for pre-surgical consultation and ongoing post surgical follow-up.

Dr. Bütter was qualified to give opinion evidence with respect to the identification of pediatric injury, the possible causation of identified pediatric injuries specifically whether a particular injury is consistent with a non-traumatic cause such as a natural disease process or a traumatic cause through some application of force and, if the latter, the qualitative nature of the traumatic force.

When Dr. Bütter refers to an injury caused by trauma, she is referring to injury caused by the application of force as opposed to disease or natural cause.

On March 2, 2013, Dr. Bütter was contacted by pediatrician, Dr. Deshpande, who was treating a seven-month-old girl with reported symptoms that were indicative of a bowel obstruction. Dr. Bütter authorized L.W.1's transfer to London Health Sciences under her care.

Dr. Bütter immediately examined L.W.1 upon her arrival at 3:00 p.m. on March 2, because of the urgency associated with the potential bowel obstruction. A bowel obstruction is a potentially life-threatening condition. That risk is particularly heightened if the bowel is twisted and its blood supply is cut off.

Even where the bowel is not twisted, a bowel obstruction can cause an overwhelming infection that results in bacteria within the bowel passing into the bloodstream, eventually resulting in the patient becoming septic, a life-threatening condition.

At the time Dr. Bütter examined L.W.1, she was aware that L.W.1 had been previously treated at the DMC for a jejunal hematoma, essentially a large blood clot located within the first half of her small bowel.

A hematoma is like a bruise and disappears over the course of time. The duration of a hematoma's existence will depend on the duration of active bleeding at its site and the size of the blood clot that develops once active bleeding stops. Generally, a hematoma, including one located in the jejunum, is expected to be reabsorbed within the body within a week or two after active bleeding stops. Active bleeding usually stops within a few hours of commencement.

Dr. Bütter explains that the jejunum is part of the small intestine and disburses nutrients from food into the bloodstream through a series of blood vessels found within the mesentery, a fatty layer of tissue that envelops the blood vessels servicing the bowel. In turn, the jejunum receives blood flow and oxygen from the same series of blood vessels within the mesentery.

As part of her pre-surgical investigation, Dr. Bütter arranged for an ultrasound to determine if the jejunal hematoma, documented at the DMC, was still present or if there was something else pushing on the bowel. The ultrasound did not reveal an obvious hematoma. She also arranged an "Upper G.I." contrast study that revealed a bird beak pattern of complete obstruction in L.W.1's jejunum. Imaging also identified a possible defect or hole in the mesentery surrounding L.W.1's jejunum.

Based on the investigatory results, Dr. Bütter was concerned that L.W.1's bowel may have been twisted and immediate surgical intervention was warranted.

After securing consent from W.E.C.A.S., Dr. Bütter proceeded with surgery on March 2, 2013, during which she discovered that a loop of L.W.1's jejunum had become affixed to her pelvis. Normally, the bowel is free-floating and moves about. While the loop was being surgically released from the pelvis, a small hole was created in L.W.1's jejunum, which was immediately contained. On examination of the entire length of L.W.1's bowel, Dr. Bütter observed some scar tissue in the area of the impugned loop as well as a hole in the adjoining mesentery which was unrelated to the hole that was made while freeing the loop from the pelvis. The mesentery hole pre-existed the surgery. It was located where "blood vessels" and a fatty layer of tissue should have been.

In explaining how a portion of L.W.1's jejunum became affixed to her pelvis Dr. Bütter opines that the affected area of the jejunum could have become inflamed secondary to trauma. The jejunum becomes sticky when inflamed and will "stick wherever, in this case it happened to be the pelvis". The bowel became partially kinked off near the area that was affixed to the pelvis but it was not twisted.

On examination, the mesentery hole was very smooth and it was located in a "well-healed area". Dr. Bütter opines that the mesentery hole was located where the prior jejunal hematoma had been located. As the hematoma was reabsorbed over time, it left a hole in the mesentery; therefore, there were no blood vessels servicing that segment of the bowel resulting in a lack of blood flow to a five centimetre section of the jejunum loop that strictured down and caused the obstruction.

A bowel stricture is essentially scar tissue arising from blood deprivation that forms circumferentially around the bowel wall to the point that it obstructs the flow of matter through the bowel. Scar tissue is caused anytime there is an injury to the bowel which results in a lack of blood flow to a segment of the bowel.

In L.W.1's case, during surgery, Dr. Bütter observed scar tissue in the "small area" of her bowel that was stuck to her pelvis. She opines that it was caused secondary to trauma. Dr. Bütter removed the five centimetre portion of the bowel that had strictured as a result of the mesentery hole.

Apart from the foregoing, L.W.1 did not present with any other lesions or a deformity of the bowel that suggested an underlying medical condition as the cause of her presentation.

Postoperatively, a pathology report with respect to a sample of L.W.1's jejunum that was removed by Dr. Bütter during surgery, evidenced scar tissue circumferentially within the bowel as well as scar tissue on the outside surface of the bowel. The pathology report confirmed there was no evidence of a current hematoma. The results were consistent with Dr. Bütter's intra-operative observations.

Dr. Bütter's final diagnosis was a jejunal stricture causing a complete small bowel obstruction with a defect of the mesentery. She opines that the stricture was caused by a lack of blood flow to the affected area. The lack of blood flow was caused by a traumatic injury to that area. Given the size of the stricture, L.W.1's age, her status as a full-term baby, and the localized area of the scarring, her stricture and resulting obstruction were not compatible with a natural disease process or any type of infection. The only possible explanation for the stricture, in Dr. Bütter's view, was that a significant force was applied to that specific area of L.W.1's body.

Dr. Bütter agrees that a mesentery tear could be caused by a force akin to "something less than" a car accident but it would have to be a very "focused directed" blow to that part of the abdomen.

L.W.1 was discharged from London Health Sciences on March 12, 2013. At that time, she was feeding well and she was not experiencing pain. She was readmitted on March 21, 2013 as a result of bilious vomiting secondary to a bowel infection, treated with antibiotics, and discharged a week later. After discharge, she returned for a clinic visit on April 16, 2013 and presented as much improved with respect to both her surgical issue and the bacterial infection. She was thriving and gaining weight.

On specific questioning, Dr. Bütter states that the external symptoms of a bowel obstruction, such as the one L.W.1 presented with, are typically bilious vomiting and, depending on where the blockage is located, a distended belly. With a complete bowel obstruction, like the one L.W.1 presented with, one would expect to see symptoms of vomiting the same day that the obstruction manifests itself because nothing is passing through the bowel. The child may experience significant abdominal cramping and pain. It is not possible for an infant to have a complete bowel obstruction and not exhibit symptoms, most notably bilious vomiting, within the same day.

Dr. Bütter confirms that bilious vomiting consists of bile and is either bright green or yellow. At the beginning stages of an infant's bilious vomiting, the bile may be mixed with formula and appear as a milk colour with a yellow or green tinge.

In Dr. Bütter's opinion, the mesentery hole, the jejunal hematoma, and the stricture in L.W.1's bowel are all "connected" because the location of the hematoma, and ultimately the mesentery hole, caused the obstruction of blood flow to that portion of the bowel, it affixed to the pelvis and scarred or strictured down, resulting in the bowel obstruction. In essence, the initial jejunal hematoma eventually caused the bowel stricture.

Dr. Bütter agrees she cannot age the stricture she observed in L.W.1's bowel. Generally, the majority of bowel strictures develop within two to six weeks after the event that causes the deprivation of blood flow to an area of the bowel, with many developing in the range of four to six weeks and some developing over eight to twelve weeks. She has no way to age the stricture within those ranges.

With respect to the "buckle bruise", Dr. Bütter agrees that if a buckle pressed against L.W.1 and caused external bruising she could have sustained internal damage. She would expect to see external bruising from trauma that was forceful enough to damage internal organs. She agrees that an individual can experience bruising on top of bruising. She agrees that a bruise on top of a bruise would be indicative of the second traumatic force being applied in the same area as the first traumatic force. However, it would be almost impossible for successive traumatic blows to the same external area, occurring at different times, to impact the exact same area of the bowel, even if a portion of it was affixed to the pelvis, because of the bowel's free-floating state.

However, it is possible that two traumatic blows resulting in two external bruises to the same area could cause cumulative damage to a fixed organ like the liver, and it is possible that the force of the second traumatic event could exacerbate the damage caused by the original traumatic event.

The liver is a solid organ and reasonably fragile in infants. It can easily tear if exposed to traumatic force. If a traumatic blow to the liver causes a small laceration a subsequent blow could worsen the initial laceration or cause an additional tear.

Evidence of M.W.1

Mr. M.W.1 testifies on his own behalf.

He is unequivocal in his evidence that he has never intentionally harmed L.W.2 or L.W.1. He accidentally dropped and caught L.W.1 on February 6, 2013.

Mr. M.W.1 gave evidence with respect to the prior W.E.C.A.S. investigations and L.W.1's historical bruising. With respect to the skull fracture, he recalls that some time after 9:00 p.m. on a Sunday night, Mrs. M.W.2 advised him that L.W.1 was wincing when she touched a particular area on L.W.1's head. They called L.B. who came over and confirmed Mrs. M.W.2's observations. They brought L.W.1 to the hospital where she underwent a CT scan that was reported to be negative and they were sent home.

The following day, Mrs. M.W.2 reported that she had received a call from hospital staff directing her to bring L.W.1 to hospital immediately, which they did when Mr. M.W.1 arrived home from work. At hospital they were advised that L.W.1 had a hairline fracture about her skull. The attending physician asked Mrs. M.W.2 if she could explain the injury. Mrs. M.W.2 advised the doctor that L.W.2 was kissing L.W.1 while she was holding a hairbrush and the brush bumped L.W.1's head. The doctor told them that the explanation was a plausible cause of the injury.

After that incident, W.E.C.A.S. caseworker, Sophie Belleau, inspected their home. Mr. M.W.1 was not home at that time. He did not personally follow-up with W.E.C.A.S. after the home inspection because he was "not concerned". Based on what he was told, he agrees that the fracture could have resulted from a fluke incident.

Mr. M.W.1 agrees that there were no issues with respect to unexplained bruising on L.W.1 that he was aware of until the middle of October 2012. He recalls a bruise about L.W.1's chin, which his grandmother pointed out to him on Thanksgiving weekend in 2012, and which Mr. M.W.1 could "faintly see" after he moved around and looked at L.W.1 in different lighting. Mrs. M.W.2 suggested the bruise could have occurred from L.W.1's use of a soother on the car ride from Windsor to Chatham.

Sometime in late September or early October of 2012, Mrs. M.W.2 discovered a bruise on the right side of L.W.1's abdomen above her hip. She discussed the bruise with Mr. M.W.1. He told her that he had pressed on L.W.1's stomach to help her poop and asked whether that could have caused the bruise. He did not look at the bruise. Mr. M.W.1 denies that he pressed on L.W.1's stomach in the exact same area in February 2013.

Mr. M.W.1 recalls receiving a telephone call in mid-October 2012 from Mrs. M.W.2 advising him that Dr. Doyle sent her to hospital with L.W.1 and he met them there. Once there, he observed little faint scratches "in the middle of L.W.1's chest". Despite specifically looking for linear marks at the back of L.W.1's throat, which the doctor at the hospital described, he could not see them. Mrs. M.W.2 told the doctor that the marks could have been caused when she was feeding L.W.1 with an eye dropper. Mr. M.W.1 denies that he used an eye dropper to feed L.W.1. He only used a bottle to feed her on the rare occasions that he did. Mrs. M.W.2 fed her about 90 percent of the time. Mr. M.W.1 continued to feed L.W.1, albeit infrequently, after the lacerations were identified in October 2012.

Mr. M.W.1 "believes" that Mrs. M.W.2 raised the possibility that L.W.1 suffered from a "blood disorder" after the October 2012 laceration incident.

Through Ms. Belleau, W.E.C.A.S. investigated the October 2012 incident. Mr. M.W.1 "believes" that he was home during one of Ms. Belleau's visits. Ms. Belleau advised him that Mrs. M.W.2 may have postpartum depression. As a result, Mr. M.W.1 was concerned about Mrs. M.W.2's emotional well-being. W.E.C.A.S. imposed a safety plan to ensure that another adult was always in the home with Mrs. M.W.2 and the children.

Mr. M.W.1 was aware that Mrs. M.W.2 was prescribed medication by Dr. Doyle as a result of her emotional issues. He assumed, although he was not certain, that she took the medication. He did not know if her prescription was renewed. In any event, Mrs. M.W.2's behaviour and her mood improved approximately one week after the medication was prescribed. Her mood also improved in November 2012 when she received W.E.C.A.S. correspondence indicating that they were ending their involvement with the family.

Mr. M.W.1 did not hear anything further from W.E.C.A.S. until after the drop/catch in February 2013. He "believes" he saw some minor bruising on L.W.1 between the time of the W.E.C.A.S. letter in mid-November 2012 and the time of the drop/catch incident but he was not concerned about it at the time.

Mr. M.W.1 recalls that Mrs. M.W.2 discovered more bruising on L.W.1 after W.E.C.A.S. closed its file. He was not concerned about the bruises.

He agrees that on November 28, 2012 Mrs. M.W.2 sent him a text indicating that she found "multiple bruises and red marks on L.W.1's legs." In an effort to provide her with an explanation and alleviate her concerns, Mr. M.W.1 replied in a text, "I wonder if that is why she was so upset when I was holding her. Maybe I was pinching her or bruising her with put [sic] realizing it Shit I feel horrible."

Mrs. M.W.2 sent him further texts in that exchange indicating that L.W.1 was "not eating" and she "bled" again.

Mr. M.W.1 does not recall an issue with L.W.1 bleeding, but at the time he replied, "If I did it accidentally I'm super sorry I didn't mean to hurt her if I did and I don't want to cause you any unnecessary stress." In his texts he did not offer any other explanation for the injuries other than he may have accidentally pinched L.W.1, and he did not suggest that Mrs. M.W.2 might have caused the injuries that she described.

Mr. M.W.1 "believes" that he "would have seen the bruising and red marks" referenced in the foregoing text messages but he does not specifically recall looking at them. He never checked the children for marks or bruises and it never occurred to him to do so. He never spoke with Sophie Belleau, the police, or Mrs. B.R. about L.W.1's unexplained bruises or about whether there was a potential connection between L.W.1's injuries and Mrs. M.W.2's potential postpartum depression because he was "not worried about it".

Mr. M.W.1 confirms that in a text message exchange with Mrs. M.W.2 on November 30, 2012, she raised the possibility of rescheduling L.W.1's pending doctor's appointment because of the presence of bruising. In response, Mr. M.W.1 suggested that she should wait and see if the bruise is resolved before the appointment and if not she should cancel. Mrs. M.W.2 went on to text that she did not want the marks to be reported to W.E.C.A.S. and that she did not want W.E.C.A.S. "back anymore". Mr. M.W.1 shared her sentiment in that regard, particularly because of the stigma attached to C.A.S. involvement.

With respect to the "buckle bruise", Mr. M.W.1 confirms that he did see a bruise on L.W.1 over the weekend of February 2 to 3, 2013. Either Mrs. W. pointed that bruise out to him or he saw it while he was changing L.W.1 and asked Mrs. M.W.2 about it. He "believes" that Mrs. M.W.2 told him the bruise occurred because L.W.2 pressed down on the buckle of L.W.1's swing chair while she was in it.

Mr. M.W.1 was not concerned about the possibility that Mrs. M.W.2 was causing L.W.1's unexplained injuries because he was "blind in his thinking about her" and because all of the occurrences had an explanation. He concedes that Mrs. M.W.2 did not offer an explanation for L.W.1's intermittent bruising; nonetheless, he did not really "think about" Mrs. M.W.2 hurting L.W.1.

Mr. M.W.1 never personally checked L.W.1 for marks and it never occurred to him to do so. Mrs. M.W.2 either told him about marks on L.W.1 or showed them to him.

Mr. M.W.1 understands that Mrs. M.W.2 was called in for a half day of work the afternoon of February 6, 2013 and Mrs. B.R. watched L.W.1 and L.W.2 while she was gone.

Mr. M.W.1 normally left for work between 6:45 and 6:50 a.m. and arrived home between 5:00 and 5:10 p.m.

Mr. M.W.1 arrived home from work at approximately 4:50 p.m. on February 6, 2013. Shortly thereafter, Mrs. M.W.2 and Mrs. B.R. took L.W.2 to a swimming lesson and he stayed home with L.W.1. He was playing with L.W.1 when the others left. Prior to leaving, Mrs. M.W.2 advised him that L.W.1 had eaten around 4:30 p.m. and that she should go to bed around 5:00 or 5:15 p.m. Before they left, neither Mrs. M.W.2 nor Mrs. B.R. advised him that they observed new bruising on L.W.1 on February 6, 2013.

Mr. M.W.1 did not feed or change L.W.1's diaper after he arrived home from work. While he was alone with L.W.1, he walked around the house as he held her upright with one arm around her midsection and her back to his chest. Her head was immediately below his chin with the back of her head resting against his chest. L.W.1's legs were hanging down and her arms were at her sides. He held her with his right arm casually around her waist. He did not hold her with a strong grip because she only weighed 14 pounds.

As he was walking toward the kitchen L.W.1 "kicked" her legs. Mr. M.W.1 states he was not carrying her as firmly as he should've been and as a result L.W.1 slipped out of his arms, but he was able to swoop down and catch her at knee height before she hit the ground.

When L.W.1 began "kicking back", her legs were hanging straight down and "they would" probably have been "kicking" his stomach and thighs, although he does not specifically recall. When L.W.1 fell, she dropped straight down in the same position that she was in while he was holding her. To catch her he swooped both his arms down to her and gripped her with both of his hands around the front of her abdomen. Mr. M.W.1 does not recall the force he employs to grab L.W.1's midsection. L.W.1 was not crying after the catch. She was a little upset and she had a look of shock on her face. Mr. M.W.1 denies that he reported, at any time, that L.W.1 was facing him when he dropped her or that she "kicked off his chest".

After catching her, Mr. M.W.1 put L.W.1 in her swing chair to calm her down. Within a few minutes she threw up.

Mr. M.W.1 testifies that "it is possible" that he thought "he might have bruised" L.W.1 as a result of catching her, but he did not check her for bruises right away because he wanted to calm her down, which he "guesses" she did within ten minutes of being placed in her swing. He also explains that he did not check her for marks or bruises immediately because "it did not cross his mind".

L.W.1 vomited approximately one minute after he put her in the swing. Mr. M.W.1 "believes" that L.W.1 vomited one or two times, which was a "minor concern" to him. After L.W.1 threw up, his main concern was telling his wife about what happened.

Once she vomited, Mr. M.W.1 picked L.W.1 up, held her over his shoulder, and carried her to the bedroom where he changed her. While he changed her he noticed a circular toonie-sized bruise about two inches in diameter on the right side of her belly. It appeared as a discolouration of skin but he does not recall its colour. He changed L.W.1 within ten minutes after the drop/catch incident, at the latest, and he agrees that he saw the bruise within a minute or two of putting L.W.1 in her swing. He had never seen a bruise like that before on L.W.1 and it "crossed his mind that it had occurred as a result of the drop/catch".

Mr. M.W.1 originally testified that he had last changed L.W.1 late in the evening on a previous day and he did not see a bruise on her at that time. Later in his evidence, he was unable to recall if he changed L.W.1 the day before the drop/catch. Finally, he offered his "best guess" that he last changed L.W.1 either a day or two or two days before the drop/catch. He is uncertain if L.W.1 had a right abdominal bruise before the drop/catch incident.

The bruise he saw on February 6, 2013 was not yellow and it appeared "more fresh" than that, approximately one to three days old. He does not agree that the bruise looked like it was caused when he applied force to L.W.1 during the drop/catch.

After Mr. M.W.1 changed L.W.1, he put her back in her swing. Mrs. M.W.2 and the rest of the family returned home within 20 minutes of the drop/catch incident. He does not recall L.W.1's skin colour at that time, but he does not agree that L.W.1 looked pale and sickly when Mrs. M.W.2 arrived home. Mr. M.W.1 does not recall L.W.1 vomiting twice after the drop/catch; telling Mrs. M.W.2 that she vomited twice; or that he was cleaning up vomit when Mrs. M.W.2 arrived home. He told Mrs. M.W.2 about the drop/catch but not the bruise at that time. He then went to the garage to barbecue their supper.

Mr. M.W.1 never provided details to Mrs. M.W.2 about the manner in which he was holding L.W.1 or the position of her body before and during the drop/catch incident. He never told M.W.2, Mrs. B.R., or any of L.W.1's treating doctors the specific details of the drop/catch incident. He only told Mrs. M.W.2 about the drop/catch incident in general because that is all she asked him about. Mr. M.W.1 agrees that he never related the details of the drop/catch incident as he did in his evidence at trial before he gave his evidence at trial. He never told Mrs. M.W.2 that L.W.1 was facing away from him when she fell.

He did not provide details of the drop/catch incident to anyone, at any time, because nobody asked him to provide details.

While they ate their supper on February 6, Mr. M.W.1 told Mrs. M.W.2 that L.W.1 had "a bruise" and "it looked bad". Mrs. M.W.2 did nothing in response. They finished their meal, Mrs. B.R., who had stayed for supper, left and eventually both L.W.1 and L.W.2 went to bed.

Mrs. M.W.2 first saw L.W.1's bruise when she changed her at 9:30 p.m. She asked Mr. M.W.1 about L.W.1's bruise and she advised him that she had seen it and it was big. Mr. M.W.1 agrees that the bruise was big.

Mr. M.W.1 did not look at the bruise at the time that Mrs. M.W.2 first saw it. He does not recall seeing the bruise again until L.W.1 was admitted to hospital at the DMC on February 8, 2013. At that time, the bruise appeared to be worse than when he first saw it and a "little bigger". He denies that he caused the bruise that he saw at the hospital on February 8, 2013. He did not look at the bruised area again after seeing it immediately after the drop/catch because Mrs. M.W.2 was "home taking care of the kids".

Mr. M.W.1 was referred to a series of photographs of the bruising that L.W.1 presented with at the DMC on February 8, 2013, including a photograph that was marked with "three circled areas" by Dr. Angelilli. Mr. M.W.1 agrees that there is a difference between the toonie-sized bruise that he saw on February 6, 2013 and the bruising depicted in the photographs taken on February 8, 2013, but he had difficulty explaining the difference because he did not look at the bruise "a lot" on February 6, 2013.

L.W.1 had difficulty eating on February 7, 2013 and instead she repeatedly vomited. In that regard, Mr. M.W.1 was cross-examined with respect to his text message exchange with Mrs. M.W.2 on February 7, 2013 which begins at 7:32 a.m. with Mrs. M.W.2 texting, "She threw up again". During her exchange:

1. He advised Mrs. M.W.2 that she was doing a wonderful job caring for L.W.1. He explains that when he sent that message he was "not sure" if L.W.1's bruise was caused by him or caused by a previous incident;

2. He received text messages from Mrs. M.W.2 expressing that she was scared; and that she was concerned about possible internal damage to L.W.1. He responded with a text advising her that he did not think anything was wrong inside L.W.1 because she was not vomiting blood;

3. He received a text message from Mrs. M.W.2 expressing her concern that C.A.S. would be called. He texted back that they would be called because of the bruising. Subsequently, he texted Mrs. M.W.2 that he "must have grabbed L.W.1 really hard to leave that big of a bruise and to upset her stomach for this long" [with L.W.1]. In his evidence, he states that "the thought" that he "must have grabbed L.W.1 hard" was only one of the scenarios that crossed his mind. He denies that he grabbed L.W.1 in anger; and

4. Mrs. M.W.2 texted him asking if L.W.1 was "falling from high up", to which he replied "chest level at the highest". In his evidence, he allows that he may not have been specific about the height L.W.1 fell from when he first told Mrs. M.W.2 about the drop/catch the night before.

Mr. M.W.1 states that the accidental drop/catch incident is the only time he was involved in causing any injuries to L.W.1. The incident occurred as he described it. He has never lied to anyone about the "dynamics" of the drop/catch incident. He has lied about who was carrying L.W.1 when the incident occurred by telling people that it was Mrs. B.R.. That lie came about as a result of a conversation he had with M.W.2 and Mrs. B.R. before they brought L.W.1 to hospital on February 8, 2013.

Mr. M.W.1 left work early on February 7 and brought home Pedialyte which he and Mrs. M.W.2 administered to L.W.1 throughout the day. Later, they discussed bringing L.W.1 to hospital. Mr. M.W.1 had no objection to seeking medical attention for L.W.1. Mrs. M.W.2 was afraid that if they did, W.E.C.A.S. would apprehend both L.W.1 and L.W.2. As a result of Mrs. M.W.2's concerns, Mrs. B.R. suggested "the lie" that she was with L.W.1 at the time of the drop/catch incident. Initially, Mr. M.W.1 did not agree with that suggestion.

Ultimately, they brought L.W.1 to hospital on February 8, 2013. On the way there, Mrs. M.W.2 asked Mr. M.W.1 to tell hospital staff that her mother was holding L.W.1 at the time of the drop/catch incident. Mr. M.W.1 agreed and from there he "went along" with "the lie".

Mr. M.W.1 believes that by February 7, 2013, he told his parents and his brother that he, Mr. M.W.1, was holding L.W.1 at the time of the drop/catch incident. He does not "believe" that he provided his family with details about how he was holding L.W.1 or about the drop/catch itself, because no one asked for them.

Mr. M.W.1 and Mrs. M.W.2 purposely did not tell K.R. and L.B. that Mr. M.W.1 was holding L.W.1 at the time of the drop/catch because Mrs. M.W.2 did not want to tell them and, in Mr. M.W.1's view, that was her decision to make.

On March 12, 2013, Mrs. M.W.2 told Mr. M.W.1 that Detective Williams spoke to her at Mrs. B.R.'s residence that day and that she was going to meet with Detective Williams on March 13, 2013 at L.P.S. headquarters. The W.s also had a scheduled appointment with their family law lawyer on March 13. Mrs. M.W.2 was late for the meeting. Mr. and Mrs. M.W.2 had a long conversation at home that night.

Mr. M.W.1 originally deposed that Mrs. M.W.2's evidence about that conversation was accurate. In cross-examination he testified that during their conversation he agreed to leave the family home but a formal plan was not developed. Almost immediately after giving that evidence he stated that they discussed him "leaving the home" but he doesn't know if he actually agreed to leave at that time. During their discussion, Mrs. M.W.2 told him she wasn't happy in their marriage and wanted a divorce or a separation. He told her that he understood. He did not say that he was not going to leave the home. She also provided him with information that she said was provided to her by Detective Williams earlier in the day. They did not engage in any further discussions that day. Prior to that conversation, Mr. M.W.1 was not aware of Mrs. M.W.2's long-standing intention to separate.

When he arrived home from work on March 14, 2013, Mr. M.W.1 had a conversation with Mrs. M.W.2 and her father, lasting about 60 to 90 minutes. They discussed Mr. M.W.1 moving out of the W. home and they repeatedly asked him what happened to L.W.1. He consistently told them that she wiggled in his arms, fell, and he caught her. They did not argue during the conversation. There was no tension. Mrs. M.W.2 did not say that she disbelieved his account of the drop/catch. Eventually, the conversation ended and Mrs. M.W.2's father left.

Mr. M.W.1 does not recall discussing marital counselling with Mrs. M.W.2 on March 13 or March 14, 2013 at all.

After her father left, Mrs. M.W.2 retired to their bedroom. Mr. M.W.1 followed her to the bedroom where he told her, for the first time, that he did not understand how the drop/catch could have caused L.W.1's injuries. Mrs. M.W.2 did not respond. Instead, she took the dog for a walk. Mr. M.W.1 is specific in his evidence that he never had a conversation with Mrs. M.W.2 about how the drop/catch "could have" caused L.W.1's injuries before that time, even though they had previously received medical opinions that the severity of L.W.1's injuries did not match the drop/catch explanation.

Mr. M.W.1 specifically denies that during the bedroom conversation, or at any other time:

a. He admitted squeezing L.W.1;

b. He demonstrated how he squeezed L.W.1; or

c. He stated that he did not know if he punched her.

The following morning, Mr. M.W.1 attended an appointment with his family law lawyer. At that time, he believed that Mrs. M.W.2 was at her brother's house visiting L.W.1 and L.W.2. He later came to learn that she had attended the LaSalle Police headquarters and reported that he had confessed to intentionally harming L.W.1. Again, Mr. M.W.1 denies that he made an admission to Mrs. M.W.2 that he intentionally harmed L.W.1.

Mr. M.W.1 was cross-examined in some detail on the text messages that he sent on March 15, 2013, most notably to Mrs. M.W.2, both before and after his arrest. In that regard he confirms and explains:

a. That at 8:24 a.m. he sent a text to a friend asking if he could stay at his house;

b. That Mrs. M.W.2 texted him stating they should attend their family law lawyer together, and Mr. M.W.1 replied, "No need - I caused all of this." He does not know what he meant by that statement;

c. That he suggested that Mrs. M.W.2 should call Angela Suzor before they saw their lawyer because she might offer Mrs. M.W.2 the kids if he confessed or Mrs. M.W.2 turned him in, because Mrs. M.W.2 had convinced him that the drop/catch was the cause of "all of this". He did not, and does not, think that he did anything wrong. He offered to "confess" in order to "get his family back" because there were only two ways the kids were coming back; he could either move out or confess. He did not directly respond when he was specifically asked "confess to what?" He denies that he used the word "confess" in his text because the night before he had "confessed to intentionally harming L.W.1";

d. That after his arrest and release, he texted Mrs. M.W.2 that he was "sorry for all of this" because he was sorry she felt that she "had to go to the police and get him arrested". Immediately after giving that answer, he stated that he was not sure "exactly why he said he was sorry that night";

e. That when he texted that "he hoped she knew" he "was not a bad person and that he just needed help with his problems", he was referring to his broken marriage, the removal of his children, and his arrest for three crimes he did not commit;

f. That when he texted, "I hope all of you are not judging me - I realize I am far from perfect," he meant that he was not perfect because he had a broken marriage, his children were not home, and now he had an arrest record;

g. That when he subsequently sent Mrs. M.W.2 a text stating, "I am going to get the help", he meant he was going to get legal help;

h. That when he subsequently sent Mrs. M.W.2 a text stating, "I will get the help I need. Those girls mean everything to me", and a further text message to her a minute later stating, "I am not mad for what you did - I know I need help. That is why I told you what happened." He was referring to telling Mrs. M.W.2 about the drop/catch incident from the beginning on February 6, 2013 and that he repeated the drop/catch explanation on March 14, 2013. The help that he was referring to was legal help and marriage counselling.

Mr. M.W.1 agrees that he never expressly referred to "legal help" or "marriage counselling" in his March 15, 2013 text messages to Mrs. M.W.2 and he agrees that he did not send Mrs. M.W.2 any text messages indicating, "I didn't do any of this."

THE COURT: I'm briefly going to review the position of the parties before we come back for reasons for verdict.

POSITION OF THE PARTIES

I will briefly summarize the parties' positions below. I will also address certain aspects of the Crown and defence submissions further during the course of my reasons.

The Crown

The Crown submits that the essential elements of aggravated assault have been proven beyond a reasonable doubt.

On February 8, 2013, L.W.1 presented with severe bruising to the right side of her abdomen, a lacerated liver, and jejunal hematoma resulting in a bowel obstruction, all of which were the result of significant blunt force trauma. Her injuries were life-threatening.

Mr. M.W.1 was home alone with L.W.1 on February 6, 2013 and admits that L.W.1 suffered blunt force trauma at that time, specifically, she fell from his arms and he caught her. Before she was left alone with Mr. M.W.1, L.W.1 was not in medical distress and her bruising was limited to the buckle bruise, which was visible when L.W.1 was assessed by Dr. Morgan on February 4, 2013.

Within hours of being alone with Mr. M.W.1, L.W.1 exhibited significant right-sided abdominal bruising, she was unable to keep formula down and she started to vomit repeatedly. The colour of her vomit changed to green on February 7, 2013, a symptom consistent with a bowel obstruction.

From a medical perspective, the drop/catch explanation is not consistent with the injuries L.W.1 presented with at hospital on February 8, 2013.

However, there is no evidence that blunt force was applied to L.W.1's abdomen between the time of the incident giving rise to the buckle bruise, which occurred days before February 4, 2013, and L.W.1's attendance at Windsor Regional Hospital on February 8, 2013, other than when she was alone with Mr. M.W.1 on February 6, 2013.

On March 14, 2013, Mr. M.W.1 admitted to Mrs. M.W.2 that he intentionally applied force to L.W.1 on February 6. The evidence of his confession is confirmed by the text messages he sent to Mrs. M.W.2 on March 15. L.W.1's injuries are consistent with the squeezing mechanism he confessed to.

Mr. M.W.1 denies the confession and he denies that he intentionally applied force to L.W.1, but he is largely incredible and his evidence ought not to be accepted and it does not raise a reasonable doubt in the context of the evidence as a whole.

Conversely, while Mrs. M.W.2 admits that she lied several times about who was with L.W.1 at the time of the alleged drop/catch, she has credibly explained her motivation for doing so. She testifies with a high level of candor and her evidence, including her evidence of the confession, ought to be accepted.

The Defence

The defence submits that the evidence establishes Mr. M.W.1's innocence. He denies intentionally applying force to L.W.1 at any time. He is credible and his evidence should be accepted.

Mr. M.W.1 agrees that the drop/catch does not explain the severity of the injuries that L.W.1 presented with on February 8, 2013. However, the drop/catch is what happened, in fact, when he was alone with her on February 6.

The Crown's case is founded on the erroneous assumption that something other than the drop/catch happened on February 6, 2013 because L.W.1's injuries did not match the drop/catch explanation, without considering that L.W.1's injuries were caused or significantly contributed to by an incident or incidents of blunt force trauma involving someone other than Mr. M.W.1, that occurred before and/or after Mr. M.W.1 was alone with L.W.1 on February 6.

The medical evidence does not suggest that L.W.1's injuries were caused on February 6, 2013 or even that her various injuries were caused at the same time. Her injuries cannot be aged. Some of her injuries could have resulted from repeat trauma to the same area of her body on two or more occasions.

Mrs. M.W.2 was L.W.1's primary caregiver from her birth to February 8, 2013. During that time, L.W.1 repeatedly presented with injuries consistent with the application of blunt force. W.E.C.A.S. was involved on two occasions and the last child protection measures it implemented prohibited Mrs. M.W.2 from being alone with L.W.1 and L.W.2. In all of the circumstances the evidence is consistent with a finding that Mrs. M.W.2 applied the force that caused the injuries L.W.1 presented with on February 8, and at the very least there is a reasonable doubt in that regard.

Further, Mrs. M.W.2 is an admitted liar and her evidence ought to be rejected particularly as it relates to:

1. The extent of L.W.1's bruising immediately before Mr. M.W.1 was alone with her on February 6;

2. Mr. M.W.1's alleged confession; and

3. Her denial that she intentionally applied force to L.W.1 at any time.

Mrs. M.W.2 had a motive to fabricate her evidence in that regard in order to secure the return of her children.

At the very least, a reasonable doubt exists but on the evidence a complete exoneration of Mr. M.W.1 is appropriate.

THE COURT: We are now at the point of our next scheduled break and when we return I will provide my reasons for verdict and we will come back at quarter after three.

MS. BROWN: Okay, thank you.

REPORTER’S NOTE: His Honour and Ms. Brown briefly discussing the schedule.

RECESS

UPON RESUMING:

COURT REGISTRAR: Court is resumed. Please, be seated.

THE COURT: Okay. So we made the changes to Exhibit KK. Now, I'll give that back to Mr. Registrar.

COURT REGISTRAR: Thank you.

THE COURT: And while I'm thinking of it if we could mark the - that written handout I gave out today your - the - the copy you have.

REPORTER’S NOTE: His Honour has discussion with Mr. Registrar re exhibit.

THE COURT: So, I'll make that lettered - lettered Exhibit O will be this portion of - portion of reasons for decision, right.

COURT REGISTRAR: Okay. Thank you.

EXHIBIT NUMBER O - Justice Verbeem's portion of Reasons for Decision - Produced and Marked.

THE COURT: Now that we have that out of the way I'm going with the disposition.

W. DISPOSITION

PRINCIPLES APPLICABLE TO THE ASSESSMENT OF EVIDENCE

I have previously observed that the disposition of the charge before me is not a function of a simple choice between the competing evidence of the accused and other witnesses when their evidence differs on material points.

Instead, the focus of the inquiry is whether the Crown has proven the essential elements of the count specified in the Indictment beyond a reasonable doubt.

In determining whether the Crown has done so, I must determine which witnesses, if any, I find credible and which aspects of their evidence I find reliable and acceptable.

I may accept some, all, or none of a witness's evidence. I may afford different weight to different parts of the evidence that I do accept.

A witness's demeanour is a factor I may consider in determining the witness' credibility; although, I must take care not to overly rely on demeanour.

Since the defence has adduced evidence I must follow the approach set out in W.(D.) which I outlined earlier.

With those principles in mind, I will now explain my findings.

Rejection of Mr. M.W.1's Evidence

I begin with the evidence of the accused recognizing that he does not carry the burden of proof on any issue. Mr. M.W.1 testifies that to the extent he applied force to L.W.1 on February 6, 2013, it was accidental. Clearly, if I accept Mr. M.W.1's evidence in that regard, he is entitled to an acquittal. Even if I do not accept that aspect, if his evidence, when considered in the context of the evidence as a whole, leaves me with a reasonable doubt he is entitled to an acquittal.

In evaluating Mr. M.W.1's evidence, I observed that he, like other witnesses that testified, is an admitted liar. He acknowledges that while he initially rejected Mrs. B.R.'s suggestion to lie about who was alone with L.W.1 at the time of the drop/catch on February 6, 2013, at Mrs. M.W.2's request he went along with the lie and repeated it himself. In that regard, I accept the evidence of Michigan CPS worker, Cassandra Moon-Faqua, that on February 8, 2013 Mr. M.W.1 told her that he was not home at the time that L.W.1 was injured on February 6, 2013 and that his mother-in-law was caring for L.W.1 when she almost fell, which was a lie.

I accept the evidence of Michigan CPS worker, Pamela Traskos, that on February 10, 2013, after she advised Mr. and Mrs. M.W.2 that L.W.1's injuries were "consistent with a pattern of child abuse", she interviewed Mr. M.W.1 alone and asked him "what happened". Mr. M.W.1 stated that he and Mrs. M.W.2 were at their older daughter's swimming lesson when L.W.1's injuries happened and that they returned shortly thereafter. He did not know how the injuries happened. Those were lies.

Like other witnesses that testified, Mr. M.W.1 lied to child protection workers in an effort to prevent L.W.1's apprehension. Like other witnesses that testified, he maintained the lie even after L.W.2 was removed on February 8, 2013. Unlike other witnesses, Mr. M.W.1 did not repeat "the lie" under oath.

Mr. M.W.1 was also present when Mrs. M.W.2 provided L.W.1's healthcare practitioners with inaccurate information about how the drop/catch incident on February 6, 2013 happened by repeating "the lie".

In particular, Dr. Deshpande testifies, and I accept, that Mr. M.W.1 was present when he obtained L.W.1's history on February 8 and was told that L.W.1 "kicked off" her grandmother's chest, fell forward, and was caught. I appreciate that Mr. M.W.1 says he does not recall hearing Mrs. M.W.2 tell doctors that L.W.1 kicked off Mrs. B.R.'s chest, however, I accept Dr. Deshpande's evidence that he was present when that was said. I also accept that both Mr. and Mrs. M.W.2 were present when L.W.1 arrived at the DMC on February 8, 2013. They were both asked about the cause of L.W.1's injuries and they both told "the lie". There is no evidence that Mr. M.W.1 made any effort to correct the inaccurate information provided by Mrs. M.W.2 to medical personnel in that regard. He was complicit in her telling of the lie. On his own evidence, he was the only one who knew the actual details of the incident. He says that he did not disclose them to anyone before testifying at trial.

Like other witnesses who testified, his past deception causes me concern with respect to his credibility, but not irredeemably so. However, my faith in his credit and the reliability of his evidence is also subverted by inconsistencies within his evidence and between his evidence and the evidence as a whole, with respect to what I find to be an issue of substance, specifically the nature of the bruising that he saw after the drop/catch and whether he believed it was caused by that incident, especially because causation is one of the central issues in this proceeding.

First, he was inconsistent in his evidence about whether he thought the bruise he saw on L.W.1 shortly after the drop/catch was related to that incident. His evidence oscillated between stating that when he first saw the bruise "it may have occurred" to him that it was related to the drop/catch and his subsequent evidence that when he first saw the bruise it did not appear to have been caused by the drop/catch but instead looked like it was one to three days old.

In turn, his evidence that the bruise appeared to be one to three days old is difficult to reconcile with his evidence about the observations he made when he last changed L.W.1 before the drop/catch. He initially testified that he last changed L.W.1 the evening before the drop/catch. However, that evidence "evolved" over the course of his testimony and he ultimately proposed that he last changed her a day or two before the drop/catch. On either version he confirms that he did not see any bruises on L.W.1 when he changed her a day or two before the drop/catch.

His evidence that the bruise he observed on February 6 did not appear to be related to the drop/catch but appeared to be one to three days old is also inconsistent with his subsequent words and conduct which, in my view, evidence his belief that the post drop/catch bruising he observed was caused by the drop/catch; specifically:

1. There is no evidence that he told Mrs. M.W.2 or anyone else that he believed the bruising he saw on L.W.1 post drop/catch appeared to be pre-existing or that he believed that the bruising that L.W.1 presented with at the DMC on February 8 was not caused by the drop/catch, as he now testifies at trial.

2. On his evidence, during the course of dinner on February 6, he told Mrs. M.W.2 that there was a bruise on L.W.1 that "it was bad". Mr. M.W.1 acknowledges that as L.W.1's primary caregiver, Mrs. M.W.2 typically reported L.W.1's bruising to him. In my view, his decision to report the bruise to her on February 6, before she looked at L.W.1 herself, is consistent with the view on his part that the bruise was caused by the drop/catch as opposed to something that happened one to three days before.

3. On the morning of February 7, 2013, Mr. M.W.1 sent Mrs. M.W.2 a text message that unequivocally speaks to a causal connection between the "big" bruise and his own conduct, specifically:

"I must have grabbed her really hard to leave that big of a bruise on her and to upset her stomach for so long."

The words Mr. M.W.1 chose to text do not speak to a belief that the bruise that he saw after the drop/catch appeared to be one to three days old; or that he did not think there was a causal connection between the bruise and his conduct on February 6 or that the "possibility that he might have caused the bruise was just something that crossed his mind", as he testifies at trial.

Further, while Mr. M.W.1 gave unequivocal evidence that he does not believe the bruise L.W.1 presented with on February 8 at the DMC was caused by the drop/catch, there is no evidence that he took any steps to advise Mrs. M.W.2 or anyone else, including L.W.1's doctors, about his belief in that regard at that time. Instead, he maintained the drop/catch as the explanation for L.W.1's bruising and other injuries that were observed on February 8.

In the result, I remain troubled by the lack of internal harmony in this aspect of Mr. M.W.1's evidence and the lack of harmony between this aspect of his evidence and the evidence as a whole.

In addition, there are other aspects of Mr. M.W.1's evidence that I find to be patently unbelievable when they are considered in the context of the evidence as a whole. To start with, Mr. M.W.1's suggestion that he did not tell "anyone" about the details of the drop/catch incident until his evidence at trial, because no one ever asked him for details, strikes me as manifestly incredible when considered in the context of the evidence as a whole.

In my view, that assertion is inconsistent with the evidence, including Mr. M.W.1's evidence, that establishes that dating back to mid-September 2012 Mrs. M.W.2 was extremely concerned with, and obsessively focused on, L.W.1's health to an extent Ms. Belleau found to be "atypical". She charted L.W.1's eating and voiding habits with meticulous detail while L.W.1 struggled with feeding issues. Further, she consistently kept Mr. M.W.1 informed about L.W.1's health and feeding, the discovery of new bruises, and other indicia of injury, and L.W.1's general presentation through text messages or "in person" discussions. Historically, Mrs. M.W.2 was extremely concerned about the development of new bruising on L.W.1 and the potential that it would lead to further W.E.C.A.S. involvement.

It is difficult to reconcile the evidence, including Mr. M.W.1's evidence, about Mrs. M.W.2's historical approach to L.W.1's health related issues, with his evidence that she did not ask for any details about the drop/catch, when: She first learned that it happened; when she discovered the "the big bruise" on February 6; when L.W.1 continued to vomit from late February 6 to February 8; when the vomit turned green; when L.W.1 was transferred to the DMC; when they were told about the severity of her injuries on February 8, 2013; when the W.s were repeatedly advised that L.W.1's injuries did not match the drop/catch explanation; when L.W.2 was placed in a kinship placement; when the W.'s access to both girls was required to be supervised because, in part, L.W.1's injuries did not match the general undetailed drop/catch explanation as provided; when L.W.1 was admitted to hospital for bowel surgery in March 2013, when Mrs. M.W.2 asked him if he was sure that L.W.1 did not hit the ground or something else in the drop/catch during their conversation on the night of March 13 and Mr. M.W.1 confirmed that her evidence about that conversation was accurate; or at any other time from February 6, 2013 to March 14, 2013.

Of course, Mrs. M.W.2 testifies she did ask for details about the incident. Initially, Mr. M.W.1 did not provide many, although some details came later. I will deal with Mrs. M.W.2's credibility extensively later but I accept her evidence on that point because, in my view, that evidence is consistent with her detailed, focused approach to L.W.1's health issues, and her deep level of concern over potential W.E.C.A.S. involvement whenever she discovered new bruising, which Mr. M.W.1 confirms.

I also find Mr. M.W.1's evidence that "no one asked for details" about the drop/catch to be difficult to reconcile with the evidence, including Mr. M.W.1's evidence, that both he and Mrs. M.W.2 were anxious to have L.W.1 and L.W.2 returned to their care once they were placed in kinship and that Mr. and Mrs. M.W.2 were both aware that the primary barrier to the children's return was the lack of correlation between the drop/catch incident as described, generally, and the severity of L.W.1's injuries. They were both advised by W.E.C.A.S. workers that L.W.1 would not return home until a different explanation was provided.

On his evidence, Mr. M.W.1 was the only person who could provide further information about the drop/catch in response to W.E.C.A.S.'s stated position on the lack of correlation between "the description of that incident" as provided and L.W.1's injuries. Given the reasons for the child protection measures implemented on and after February 8, 2013, it is very difficult to accept that Mrs. M.W.2 did not ask for details about the drop/catch, ever.

Further, I find that Mr. M.W.1's evidence that no one asked for the details about the drop/catch difficult to reconcile with the evidence, which I accept, that medical practitioners and child protection workers continued to ask questions about the causal mechanism of L.W.1's injuries even after the general details of the drop/catch were provided and rejected.

Mr. M.W.1 was the only person who knew details about L.W.1's position, his grip strength while he held her, the force he applied in the catch, L.W.1's immediate reaction post trauma, and the size, shape, and location of the bruise he saw when he changed her after the incident. He was the only person who could provide additional detailed information about the drop/catch when third parties continued to ask about the manner in which L.W.1 sustained her injuries. He did not do so.

In the result, I do not accept Mr. M.W.1's evidence that "no one" asked him about the details of the drop/catch at any time because it conflicts with evidence that I do accept, after considering all of the evidence including Mr. M.W.1's evidence, and because I find his evidence in that regard to be patently unbelievable in the context of the evidence as a whole.

Further, Mr. M.W.1 "testifies" that it was not until March 14, 2013 that he first disclosed to Mrs. M.W.2 that he did not understand how the drop/catch could have caused L.W.1's injuries. I find his evidence in that regard difficult to reconcile with the evidence about the main reason for the child protection measures that were implemented by W.E.C.A.S. after the drop/catch and for W.E.C.A.S.'s stated position that the children would not be returned until a different explanation was provided.

The evidence which I accept indicates that Mr. and Mrs. M.W.2 were advised within days after L.W.1 was admitted to the DMC about the lack of correlation between the drop/catch explanation and L.W.1's injuries and that the lack of correlation motivated L.W.2's removal from the W.s' care and the imposition of supervised access. The lack of correlation between the drop/catch and L.W.1's injuries continue to be raised with Mr. and Mrs. M.W.2 by W.E.C.A.S. members periodically throughout February and March 2013. The lack of correlation was the stated reason why the girls would not be returned to the W.s' care. In short, the position adopted by W.E.C.A.S. that the drop/catch did not account for L.W.1's injuries had substantial and continuous life altering impact on Mr. and Mrs. M.W.2 and their children. In that context, it is difficult to accept that Mr. M.W.1 did not disclose his inability to understand how the drop/catch could have caused L.W.1's injuries to Mrs. M.W.2 until over a month after the issue was first raised and the children were removed from their care. In the result, I do not accept that evidence because I find it to be unbelievable.

Finally, I have significant difficulties reconciling and ultimately accepting aspects of Mr. M.W.1's evidence with respect to the text messages he sent to Mrs. M.W.2 on March 15, 2013, which include the following:

1. His explanation for his text message prior to arrest suggesting that Mrs. M.W.2 contact Ms. Suzor to see if she could offer the children to Mrs. M.W.2 if he "confessed" or she "turned him in" is internally inconsistent. While he states that at the time he sent the text message he did not believe he had done anything wrong, Mr. M.W.1 explains that he knew there were only two ways to get the children back, confess or move out. By the time he wrote the subject text he was already taking active steps to move out of the house. On his evidence, he agreed to move out the night before and he had already contacted a friend to arrange a new place to stay before he sent the text. As a result, it was not necessary to "confess" to Ms. Suzor to "get the kids back". He was already moving out. In the context of Mr. M.W.1's own evidence, it is difficult to understand why he suggested that Mrs. M.W.2 initiate a dialogue with W.E.C.A.S. about his "confession" on March 15, 2013. A confession would have been redundant at that point if it was designed to secure the return of the children. He did not offer any other evidence to illuminate his reasoning.

2. Mr. M.W.1 failed to specify what the subject of the "confession" to W.E.C.A.S. was intended to be, even when he was directly asked to do so in cross-examination. He did state that Mrs. M.W.2 convinced him that the drop/catch "caused all of this", but members of W.E.C.A.S. were already aware of the drop/catch explanation at the time of the text and had been since February 8, 2013. That explanation had already been rejected as the cause of L.W.1's injuries. As a result, I am unable to appreciate how a confession to the drop/catch would have advanced the objective of getting the children back as of March 15, 2013. Again, he did not explain what he was proposing "to confess". It is also difficult to reconcile his evidence about this text with other parts of his evidence. Mr. M.W.1 states that the bruise he saw on February 8, 2013 was not caused by the drop/catch and that he told Mrs. M.W.2 on March 14, 2013 that he did not understand how the drop/catch caused L.W.1's injuries which, in my view, is inconsistent with his evidence that as of March 15, 2013 he remained convinced that the "drop/catch" "caused all of this".

3. The narrative of Mr. M.W.1's evidence indicates that at the time he wrote his post arrest text messages on March 15, 2013, he had just been wrongfully charged with three criminal offences alleging that he intentionally and repeatedly harmed his daughter on the strength of Mrs. M.W.2's fabricated report that he confessed to harming L.W.1 on February 6. Yet, the first text message he sent to Mrs. M.W.2 after his release, on its face, contains an expression of remorse, "that he was sorry for all of this". He does not know why he expressed that sentiment other than he was sorry that she felt she needed to go to the police and "get him arrested". I find it incredible to the point of unbelievable that in the context of being wrongfully charged with three offences predicated on committing significant harm to his child, Mr. M.W.1 would apologize to Mrs. M.W.2 for her feeling that she had to initiate that result by going to the police ostensibly with a fabricated confession.

4. Finally, in the context of the evidence as a whole, his explanation for his post arrest text about why he told Mrs. M.W.2 "what happened" is untenable and unbelievable. Specifically, Mr. M.W.1 testifies that his text message stating, "I am not mad for what you did I know I need help That is why I told you what happened", meant he intended to get help for his legal problems including the charges that had just been laid against him and help for his marital problems, and the portion of the text stating "that is why I told you what happened" referred to him telling Mrs. M.W.2 about the drop/catch incident from the very beginning, that is, February 6, 2013. However, Mr. M.W.1 was not charged with offences from the "very beginning", as of February 6, 2013, and he did not "need" to get "legal help" with respect to charges from "the very beginning". Further, Mr. and Mrs. M.W.2 did not discuss their marital problems until March 13 and March 14, 2013. As a matter of logic and reason, it is untenable to accept that Mr. M.W.1's perceived need for legal and marital help on March 15, 2013 somehow motivated him to disclose the drop/catch incident to Mrs. M.W.2 on February 6, 2013, as he now explains.

In addition, I find his evidence that when he expressed that he "needed help for his problems" and he was "going to get help for his problems", he was referring to "legal help" and "marital counselling" to be dubious. Mr. M.W.1 never expressly referenced legal help or marital counselling in any of his text messages that day and there is no evidence that he raised the issue of "marital counselling" directly with Mrs. M.W.2 at any time before his March 15 text messages.

As a result of the cumulative effect of the areas of concern I have outlined above, I find aspects of Mr. M.W.1's evidence to be incredible and aspects of it to be inconsistent. As a result of my view of the lack of credit in Mr. M.W.1's evidence, I specifically do not accept his evidence about: The manner in which blunt force was applied to L.W.1 while he was alone with her on February 6, 2013, his denial of his alleged confession on March 14, 2013; his explanations of his March 15, 2013 text messages to Mrs. M.W.2; and his explanation about why he did not provide details of the drop/catch that he describes.

In arriving at that decision, I place relatively little weight on Mr. M.W.1's admitted lies about who was with L.W.1 on February 6, 2013. Rather, my findings are primarily the result of the inconsistencies in, and the unbelievable aspects of, Mr. M.W.1's evidence.

Initial Findings

My rejection of aspects of Mr. M.W.1's evidence does not, by necessity, lead to my acceptance of the evidence of other witnesses that conflicts with the aspects of Mr. M.W.1's evidence that I reject. I must go on to consider whether Mr. M.W.1's evidence, in the context of the evidence as a whole, leaves me with a reasonable doubt with respect to his guilt and, if not, whether the evidence that I do accept establishes the essential elements of the offence beyond a reasonable doubt.

To begin with, there is a general consensus in the evidence with respect to the following points, and I make factual findings accordingly:

1. Mrs. M.W.2 was L.W.1's primary caregiver and she was primarily responsible for feeding L.W.1 from her birth until February 8, 2013.

2. As a result of his work schedule, Mr. M.W.1 spent comparatively limited time with L.W.1 on workdays.

3. From the time L.W.1 was approximately seven weeks old until February 8, 2013, she intermittently presented with traumatic injuries including a skull fracture, throat lacerations, bleeding under her tongue, and multi-site bruising over various aspects of her body at different times.

4. L.W.1 does not and did not have an undiagnosed medical condition or genetic disorder that rendered her more susceptible to injury from blunt force trauma or that accounted for her various injuries from September 2012 to February 2013.

5. L.W.1's historical injuries are consistent with the application of blunt force. My finding in that regard does not equate to a finding that L.W.1's historical injuries evidence a pattern of child abuse.

Although Dr. Angelilli testifies that, in her view, L.W.1's history of injury is consistent with such a pattern, I am unable to accept her evidence in that regard because she was not qualified to give opinion evidence on the subject of "child abuse".

In any event, the disposition of the charge before me is not dependent on a finding of fact that L.W.1's previous injuries, dating back to the skull fracture and including the so-called "buckle bruise", were the result of a pattern of ongoing child abuse. The issue is whether the Crown has proven, beyond a reasonable doubt, that Mr. M.W.1 intentionally applied force to L.W.1 on February 6, 2013, as well as the balance of the essential elements of aggravated assault. As I will explain later, the evidence of L.W.1's past injuries is not evidence that Mr. M.W.1 committed the offence with which he is charged, at all. However, the evidence is relevant to other issues in this proceeding, including whether the evidence of L.W.1's historical injuries combined with Mrs. M.W.2's role as her primary caregiver, and in the context of the balance of the evidence as a whole, leaves me with a reasonable doubt with respect to whether the injuries that L.W.1 presented with at hospital on February 8, 2013 were actually caused when she was alone with Mr. M.W.1 on February 6, 2013.

In that regard, the defence submits that while there was no direct evidence that Mrs. M.W.2 caused L.W.1's historical injuries through the application of force, there is compelling circumstantial evidence to support that proposition, specifically:

1. L.W.1 suffered periodic traumatic blunt force injuries which did not have plausible, or any, explanations.

2. Mrs. M.W.2 was alone with L.W.1 substantial periods of time during the time period in which the injuries occurred. Mr. M.W.1 was not.

3. Mrs. M.W.2 was L.W.1's primary caregiver and primarily responsible for feeding her.

4. Mrs. M.W.2 presented with "mental" health concerns that led to the implementation of intrusive child protection measures that restricted her ability to be alone with the children.

5. Mrs. M.W.2 was prescribed medication for her emotional issues, which she did not take.

6. Mr. M.W.1 denies that he caused L.W.1's historical injuries whether intentionally or accidentally.

Importance of Mrs. M.W.2's Evidence

Of course, Mrs. M.W.2 denies that she caused traumatic injuries to L.W.1 through the intentional application of blunt force, at any time, including in the days before and after February 6, 2013. The question is whether her evidence is credible and reliable. That question informs the evaluation of several aspects of her evidence that touch on critical issues of fact in this proceeding, including:

a. Her evidence that she never harmed L.W.1 through the intentional or unintentional application of force, at any time, including in and around February 6, 2013, which is relevant to the defences' third-party suspect theory and to the determination of the nature and extent of the injuries sustained by L.W.1, if any, while alone with Mr. M.W.1 on February 6, 2013;

b. Her evidence that Mr. M.W.1 confessed to her that he harmed L.W.1 by intentionally applying force to her on February 6, 2013, which is obviously directly relevant to one of the essential elements of the offence charged; and

c. Her evidence with respect to L.W.1's condition up to the time that Mr. M.W.1 was alone with her on February 6, 2013, and her evidence with respect to L.W.1's condition after Mrs. M.W.2 returned from the swimming lesson up to the time L.W.1 was taken to hospital on February 8, 2013, which is also relevant to the issues surrounding the nature and extent of the injuries sustained by L.W.1, if any, while she was alone with Mr. M.W.1 on February 6, 2013, including whether L.W.1's presenting condition at hospital on February 8, 2013:

1. Was the result of an injury or injuries that occurred before Mr. M.W.1 was alone with L.W.1 on February 6, 2013 and whether there is a reasonable doubt in that regard;

2. Was the result of an injury or injuries that occurred after Mr. M.W.1 was alone with L.W.1 on February 6, 2013 and before L.W.1 was admitted to hospital in Windsor on February 8, 2013 and whether there is a reasonable doubt in that regard; notably, this time period excludes L.W.1's transfer from Windsor Regional Hospital to the DMC, which I will address separately;

3. Was the result of a pre-existing injury or injuries that were exacerbated when Mr. M.W.1 was alone with L.W.1 on February 6, 2013 causing L.W.1's cumulative injuries as observed on February 8 to appear to be inconsistent with the stated drop/catch explanation, in isolation, and whether there is a reasonable doubt in that regard;

4. Was the result of some combination of (1), (2) or (3) above, and whether there is a reasonable doubt in that regard.

Must Be Approached with Caution

As I have previously observed, M.W.2's evidence warrants caution and careful scrutiny for the following reasons:

1. She is an admitted liar. She advocated telling "the lie" about who was with L.W.1 at the time of the drop/catch. She repeatedly told the lie to L.W.1's treating healthcare practitioners, child protection workers, and the police. She lied under oath in her KGB statements. She lied to Detective Williams on March 13, 2013 when she was actively trying not to lie. She lied to her family members. She continued to lie even after the original purpose of preventing W.E.C.A.S. from "taking" her children was spent. She continued to lie after medical professionals stated that L.W.1's injuries did not match the explanation given for them. She knew the only person who could further explain the mechanism of the drop/catch was Mr. M.W.1 but she continued to falsely assert that Mrs. B.R. was with L.W.1 when it occurred.

While she suggests that her deceit was limited to "innocently" substituting one person for another in the drop/catch narrative, it was not. She also lied to Ms. Belleau about the state of her relationship with Mr. M.W.1 in October of 2012 and in February of 2013. She lied about the tele-health call being recorded. She was less than candid about her compliance with the medications prescribed by Dr. Doyle, both to police and to W.E.C.A.S. Her pedigree of deceit with respect to certain information that she viewed as potentially harmful from a child protection perspective is robust.

2. She lied to obtain what she viewed as a favourable child protection result, which viewed objectively was for her own benefit. She did not want to lose her children, but there is little evidence to suggest that before she told "the lie" she gave any objective consideration to the effect that it might have on her children if they were returned to an unsafe home or if the truth about the drop/catch incident, as she believed it to be, was relevant to L.W.1's medical care.

3. The circumstances that developed between February 8, 2013 and March 15, 2013 potentially provided Mrs. M.W.2 with a motive to fabricate the narrative that implicated Mr. M.W.1 as the person solely responsible for the injuries L.W.1 presented with at hospital on February 8. The drop/catch incident as reported was rejected as a plausible explanation for L.W.1's injuries virtually the same day that she was admitted to the DMC. Mrs. M.W.2 acknowledges that she knew that there was no prospect that her children would return to her home unless a new explanation was provided. In the circumstances, the prospect of the children being returned to her care could have been a motivation for Mrs. M.W.2 to fabricate a narrative of criminal culpability on Mr. M.W.1's part.

4. There are discrepancies between Mrs. M.W.2's evidence at trial and her evidence at the preliminary hearing.

5. There are discrepancies between Mrs. B.R.'s evidence and Mrs. M.W.2's evidence at trial.

In all of the circumstances, common sense dictates that there is good reason to approach and consider Mrs. M.W.2's evidence with the greatest care and caution. While I remain entitled to rely on Mrs. M.W.2's evidence, even if it is not confirmed by another witness, or other evidence, I find it would be dangerous for me to do so, particularly given the importance that Mrs. M.W.2's evidence has in relation to the Crown's case.

I am of the view that I should be satisfied that there is some other evidence which confirms important elements of Mrs. M.W.2's evidence before I rely on it in determining whether the Crown has proven Mr. M.W.1's guilt beyond a reasonable doubt.

Of course, not every aspect of Mrs. M.W.2's evidence must be independently confirmed or supported in order for me to accept her evidence as a whole or in part. If that were the case, there would be no need for Mrs. M.W.2's evidence at all, the supporting evidence would suffice.

In addition, the confirmatory or supporting evidence need not be evidence that confirms or supports evidence that implicates Mr. M.W.1. Evidence which supports or confirms an important element of Mrs. M.W.2's evidence can be enough to restore faith in the relevant parts of Mrs. M.W.2's evidence as a whole.

After considering the totality of the evidence, I am satisfied that Mrs. M.W.2's evidence does not stand unconfirmed and, in my view, important elements are confirmed by other aspects of the evidence including the following:

1. Ms. Belleau's evidence confirms, and I accept, Mrs. M.W.2's evidence that W.E.C.A.S. posited that plausible explanations for the skull fracture and throat lacerations were provided at the time those injuries were identified.

2. Ms. Belleau's evidence confirms, and I accept, that Mrs. M.W.2 disclosed her symptoms of anxiety, stress, and "a feeling like she wanted to be somewhere else", in October 2012. I also find that Mrs. M.W.2 disclosed those symptoms in circumstances in which that disclosure may have been adverse to her objective of not having W.E.C.A.S. involved with her family.

3. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence that historically she did not conceal L.W.1's bruises and injuries from him. Instead, she took active steps to bring those matters to Mr. M.W.1's attention, to discuss them with him and to express her concerns about the injuries.

4. Mr. M.W.1, and to a lesser extent Sophie Belleau's evidence, confirm, and I accept, Mrs. M.W.2's evidence that she took active steps to determine whether L.W.1 suffered from an undiagnosed medical condition that accounted for her injuries, including bringing L.W.1 to Dr. Morgan.

5. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence about the happenings on March 13 and 14, 2013 leading up to the bedroom conversation in which she alleges that Mr. M.W.1 "confessed", including the content of their conversation on March 13, 2013 in which, among other things, Mrs. M.W.2 disclosed the information that Detective Williams provided to her that day; the content of their March 14, 2013 conversation with Mrs. M.W.2's father; and her evidence that after her father left she went to the bedroom and Mr. M.W.1 followed her there a short time later.

6. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence that by March 14, 2013, Mr. M.W.1 agreed to move out of the family residence in order to increase the chances that the children would be returned.

7. Mr. M.W.1 and B.R.'s evidence confirm, and I accept, Mrs. M.W.2's evidence that Mr. M.W.1 was alone with L.W.1 in the "early evening" of February 6, 2013, and that he subsequently reported to Mrs. M.W.2 that L.W.1 had been subjected to accidental blunt force trauma during that time.

8. Detective Williams evidence and the video recording of Mrs. M.W.2's interview, Exhibit Number 4, confirm, and I accept, Mrs. M.W.2's evidence about the content of her interview with Detective Williams on March 13, 2013.

9. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence that her emotional issues improved in November of 2012.

10. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence that she disclose the content of her brief meeting with Detective Williams on March 12, 2013 and her intention to meet with him on March 13, 2013 to Mr. M.W.1 on March 12, 2013.

11. Mr. M.W.1's evidence confirms, and I accept, Mrs. M.W.2's evidence about the circumstances by which "the lie" originated.

12. Dr. Angelilli's evidence confirms, and I accept, Mrs. M.W.2's evidence that she disclosed L.W.1's prior history of the skull fracture to Dr. Angelilli and that Dr. Angelilli rejected the brush explanation, which is evidence that is relevant both to the assessment of Mrs. M.W.2's credibility and to the defence's third-party suspect theory.

I appreciate the consistency within Mr. and Mrs. M.W.2's evidence on important elements of the evidence as a whole, and I also considered the consistency within their evidence on those points when evaluating Mr. M.W.1's evidence in the context of the evidence as a whole. However, my difficulties with Mr. M.W.1's evidence do not lie in those aspects of his evidence that are consistent with Mrs. M.W.2's evidence. Rather, my difficulties arise from the inconsistent and incredible aspects of his evidence that I have previously explained. The unbelievable aspects of his evidence remain so, in my view, despite the consistency of other aspects of his evidence with aspects of Mrs. M.W.2's evidence.

That same level of scrutiny must be applied to the evaluation of every witness's evidence, including Mrs. M.W.2's evidence.

Inconsistencies in M.W.2's Evidence

After considering Mrs. M.W.2's evidence in the context of all of the evidence, I am not persuaded that Mrs. M.W.2's credibility is appreciably informed by the inconsistencies between her evidence at trial and her evidence at the preliminary hearing or by the inconsistencies between her evidence and Mrs. B.R.'s evidence and I will explain why.

The inconsistencies between the evidence given by Mrs. M.W.2 at trial and at the preliminary hearing, which I outlined in my review of her evidence, are, in my view, not on matters of substance and instead are on matters of peripheral detail. Some of the inconsistencies were over whether Mrs. M.W.2 could "recall" certain events happening. In my view, some difference in a witness's ability to recall a specific peripheral event that happened two or three years earlier when testifying at different times is not unexpected.

Overall, there is nothing inherent in the nature of the inconsistencies between Mrs. M.W.2's trial and preliminary hearing evidence that causes me concern over her credibility or the reliability of her evidence on matters of substance at trial.

Further, in my view, the inconsistencies between Mrs. B.R.'s evidence and Mrs. M.W.2's evidence do not impair Mrs. M.W.2's credibility, although they do impair the reliability of aspects of Mrs. B.R.'s evidence.

There are dramatic differences between certain aspects of their evidence, including:

1. The manner in which the skull fracture was detected and diagnosed;

2. Whether there was a second incident leading to further W.E.C.A.S. involvement in the fall of 2012;

3. When the incident causing the buckle bruise occurred;

4. When Mrs. M.W.2 first saw the bruise after returning from the swimming lesson on February 6, 2013, whether Mrs. B.R. was there when she did, and the manner in which Mrs. M.W.2 reacted to the bruise;

5. Mrs. B.R.'s observation of a red hand print on L.W.1's abdomen that was said by Mrs. B.R. to be still present on February 8, 2013, which no other witness testifies to observing; and

6. Whether Mr. M.W.1 rejected the lie when it was originally proposed.

In evaluating their respective evidence, in the context of the evidence as a whole, I have little hesitation in concluding that Mrs. B.R.'s evidence is not accurate on any of those points.

Dealing with points (1) and (2), all of the evidence, except Mrs. B.R.'s evidence, establishes that there were two discrete incidents leading to W.E.C.A.S. involvement in 2012, the skull fracture and the subsequently discovered throat lacerations. In her evidence, Mrs. B.R. fused elements of each incident into one narrative. Contrary to her evidence, I find that Dr. Doyle's direction to attend the emergency room was not related to the skull fracture, it was related to the chin bruise and chest scratches that led to the discovery of the throat lacerations at hospital.

With respect to the other enumerated inconsistencies, Mr. and Mrs. M.W.2 both testified that Mrs. M.W.2 first looked at the bruise at 9:30 p.m. on February 6, 2013 after Mrs. B.R. left, and that Mr. M.W.1 did not disclose the bruise to Mrs. M.W.2 until they were making or eating supper that evening. There is no evidence that confirms Mrs. B.R.'s contrary evidence on those points, and I do not accept it. Further, both Mr. and Mrs. M.W.2 testified that the incident resulting in the buckle bruise occurred in early February or, in Mrs. M.W.2's case, possibly late January. There is no evidence confirming Mrs. B.R.'s assertion that it happened at Christmas time.

Finally, Mr. and Mrs. M.W.2 testified that Mr. M.W.1 rejected "the lie" when initially proposed by Mrs. B.R.. Only Mrs. B.R. testifies about Mrs. M.W.2 rejecting it because of differing handprints.

Like other witnesses, Mrs. B.R. has a history of deceit with respect to the drop/catch narrative. She lied under oath about being with L.W.1 and made up details of the incident, off-the-cuff, when she was interviewed by police based on events as she imagined them to be.

Nonetheless, and despite her history, I am not of the view that she was intentionally deceptive in her evidence at trial. However, I am of the view that her evidence on certain points is demonstrably inaccurate. In the result, I do not accept her evidence on the six enumerated areas above, as I do not find it to be reliable.

The issue remains whether Mrs. M.W.2's evidence on the key points that I previously identified, specifically her evidence that she never harmed L.W.1 through the application of force, her evidence about L.W.1's health and the extent of her bruising before and after Mr. M.W.1 was alone with her on February 6, and her evidence about the confession ought to be accepted when measured in the context of the evidence as a whole. I will deal with each of those aspects in turn.

M.W.2 Never Intentionally Harmed L.W.1

First, M.W.2 asserts that she never harmed L.W.1 through the intentional or unintentional application of force. The defence posits there is circumstantial evidence which suggests otherwise or ought to leave a reasonable doubt in that regard.

In considering Mrs. M.W.2's evidence on the point, I remain mindful of her past deceit. I am also mindful that Mrs. M.W.2 was relatively "balanced" in her evidence with respect to Mr. M.W.1 at trial. While she deposes to an inculpatory confession on his part, she also deposes to evidence which, when viewed in isolation, serves as some measure of exculpatory evidence from Mr. M.W.1's perspective, specifically:

1. She did not suspect Mr. M.W.1 harmed L.W.1 at any time before she received further information from Detective Williams on March 13, 2013.

2. Mr. M.W.1 was against telling the lie when it was originally proposed by Mrs. B.R..

3. Mr. M.W.1 suggested bringing L.W.1 to the doctor on February 7, 2013. It was Mrs. M.W.2 that resisted.

4. Mr. M.W.1 never attempted to prevent her from speaking with police.

In my view, her evidence at trial in that regard is consistent with an effort to provide truthful evidence to the court.

After considering Mrs. M.W.2's evidence in the context of the evidence as a whole, I accept Mrs. M.W.2's evidence that she did not harm L.W.1 through the application of force at any time. I will explain why.

Despite the need to approach Mrs. M.W.2's evidence with caution, I am satisfied that important elements of her evidence are confirmed by other evidence to an extent that my trust in Mrs. M.W.2's evidence as a whole is restored.

She admits to her prior lies that were designed to secure particular child protection outcomes. That motivation was shared by Mr. M.W.1. I do not condone her conduct in that regard. It was shortsighted and it was misguided, but I accept that it was the product of desperation and, to be blunt, stupidity and, in the context of the evidence as a whole, it does not cause me to reject her evidence outright. Every person who told "the lie" ignored L.W.1's best interests.

Further, my acceptance of Mrs. M.W.2's evidence is founded in the following:

First, Mr. M.W.1 deposes that he was never concerned that Mrs. M.W.2 was harming L.W.1 even after he was advised about her potential postpartum depression in October 2012, and despite L.W.1's ongoing history of periodic unexplained injuries. He never independently checked L.W.1 for bruises or markings because he was not concerned. At times he questioned whether he caused the injuries through accidental means, but it never occurred to him that Mrs. M.W.2 was harming L.W.1.

Second, Mrs. M.W.2's evidence, as confirmed by Mr. M.W.1, indicates that Mrs. M.W.2 historically took active steps to advise Mr. M.W.1 and/or show him and question him about bruising and other indicia of injury that she periodically discovered on L.W.1. Her various text messages to Mr. M.W.1 about the discovery of new injuries are consistent with their respective evidence on the point. She indicates, and Mr. M.W.1 confirms, that she was extremely concerned when she discovered new injuries on L.W.1, she discussed her concerns with Mr. M.W.1, and she attempted to determine the cause of the injuries. There is no evidence that she attempted to conceal injuries to L.W.1 from him. In my view, based on the evidence before me, her conduct in that regard is not consistent with the theory that she was intentionally harming L.W.1 at any time.

Third, although she expressed reluctance to bring L.W.1 to a doctor when she evidenced bruising, including in October and December 2012, because she was concerned about further W.E.C.A.S. involvement, she still brought L.W.1 to Dr. Morgan for assessment at those times as well as in early February 2013 when the buckle bruise was visible, as confirmed by Mr. M.W.1. I accept the Crown's submission that her conduct in that regard is not consistent with an individual who is intentionally harming her child and attempting to hide the injuries from detection by medical practitioners.

Fourth, I accept Mrs. M.W.2's evidence, as confirmed by Mr. M.W.1 and to a lesser extent Ms. Belleau, that Mrs. M.W.2 was actively pursuing steps to determine if L.W.1 suffered from a medical condition that was causing her injuries, including investigating her family's medical history and bringing L.W.1 to Dr. Morgan for assessment. On the evidence before me, I accept the Crown's submission that her conduct in that regard is not consistent with an individual who knew that the cause of L.W.1's injuries was the result of a force that she was intentionally applying. The evidence does not persuade me that Mrs. M.W.2's efforts to determine if there was a medical cause for L.W.1's injuries was a disingenuous effort to remove suspicion from herself.

Fifth, there were "possible plausible unintentional" explanations offered for the skull fracture and the throat lacerations. I appreciate that Dr. Angelilli rejects those explanations. I do not place any weight on that aspect of her evidence. She evaluated the plausibility of those explanations in the context of her mandate to determine if L.W.1's presentation at the DMC was consistent with child abuse. The skull fracture and lacerations were summarily viewed by her as pieces to a larger pattern that was influenced by L.W.1's presentation on February 11, 2013.

On the other hand, Ms. Belleau investigated the incidents on a contemporaneous basis in the immediate aftermath of the injuries being identified. Her primary focus was the cause of those specific injuries and the child protection measures required as a result. She had the benefit of interviewing Mr. and Mrs. M.W.2 on a contemporaneous basis with respect to those injuries and any possible explanation for those injuries, as well as receiving information directly from the medical professionals who identified and treated the injuries. After investigating both injuries, Ms. Belleau was satisfied, at the time, that plausible explanations had been given for both and I accept her evidence in that regard.

Sixth, although Mrs. M.W.2 presented with some mental health concerns in October 2012 that led Ms. Belleau to implement a safety plan to ensure that she was not alone with the children at that time, there is no evidence that her problems in that regard were long-lasting or resulted in a propensity to harm her children.

I accept Mrs. M.W.2's evidence that she took the medication that was originally prescribed for her emotional issues, at the time, and that she did not renew her prescription because her mood improved as L.W.1's feeding improved in November 2012. Her evidence in that regard is confirmed by Mr. M.W.1 who noted an improvement in her mood about a week after the original prescription. He did not depose to a lasting decline in her mood in the period of time when unbeknownst to him she was not taking the additional medication she was prescribed. Instead, he deposes to a further improvement in her mood after W.E.C.A.S. closed its file in November 2012. He did not testify to a notable decline in her mood or mental health after that time at all.

I accept that Dr. Angelilli's concerns over Mrs. M.W.2's obsessive and extreme presentation during the course of her interview at the DMC led her to recommend that Mrs. M.W.2 undergo a psychiatric examination. I also accept her evidence that her recommendation in that regard did not equate to a belief, on her part, that Mrs. M.W.2 intentionally harmed L.W.1 or that she presented with a diagnosable mental health condition, but instead she felt that such an examination might illuminate the reason for Mrs. M.W.2's atypical presentation.

On the evidence before me, it would be an act of pure speculation to conclude that Mrs. M.W.2's presentation, as described by Dr. Angelilli, was evidence that Mrs. M.W.2 intentionally harmed L.W.1 at any time or that she had an increased propensity to harmed L.W.1 at any time.

As a result of the foregoing and the other evidence, which confirms important elements of Mrs. M.W.2's evidence, my trust in Mrs. M.W.2's evidence that she did not harm L.W.1 through the application of force at any time is restored.

I accept her evidence in that regard and, as a result of the foregoing, I am confident in placing substantial weight on that evidence and I make a finding consistent with her evidence in that regard. I am not left with a reasonable doubt that the injuries that L.W.1 presented with on February 8, 2013 were caused by M.W.2's application of force to L.W.1. I find that they were not so caused.

My finding that Mrs. M.W.2 did not cause injury to L.W.1 through the application of force at any time does not equate to a finding that Mr. M.W.1 did cause L.W.1's historical traumatic injuries through the application of force, either accidentally or intentionally. It does not. The Indictment sets out a specific date of the alleged criminality, February 6, 2013. It is not necessary to determine whether Mr. M.W.1 was responsible for causing L.W.1's previous injuries, either accidentally or intentionally, in order to dispose of that charge. The Crown is not relying on evidence of L.W.1's historical injuries prior to February 6, 2013 as evidence of Mr. M.W.1's guilt, and it is not. The determination of the charge before the court cannot be and is not grounded in whole or in part on a finding or a view that Mr. M.W.1 intentionally or accidentally applied traumatic force to L.W.1 before February 6, 2013 or that L.W.1's historical injuries are evidence of a propensity on Mr. M.W.1's part as of February 6, 2013 to intentionally apply force to L.W.1. It is not.

Nature and Extent of Injuries from February 6, 2013 Trauma

In order to dispose of the charge, it is necessary to determine if the Crown has proven beyond a reasonable doubt the nature and extent of the injuries, if any, that L.W.1 sustained while she was alone with Mr. M.W.1 on February 6, 2013. That finding is of critical import to the issue of causation.

To start, I accept Dr. Angelilli's uncontradicted evidence that the severity of the injuries that L.W.1 presented with at the DMC on February 8, 2013 was not consistent with the drop/catch explanation that was provided. The defence does not dispute that evidence. The question is whether an inference can be drawn from that evidence that "something other than" the drop/catch necessarily happened when Mr. M.W.1 was alone with L.W.1 on February 6, 2013. The defence suggests that such an inference would be implicitly founded in an unsupported assumption that all or a majority of the injuries that L.W.1 presented with at the DMC on February 8 were caused when she was alone with Mr. M.W.1 on February 6. In that regard, the defence submits that the medical evidence does not support a finding that all of L.W.1's presenting injuries were caused when she was alone with Mr. M.W.1 on February 6.

In the view of the defence, the evidence establishes that L.W.1 sustained traumatic injuries before and possibly after February 6 that, on their own or in combination with the drop/catch incident, account for the severity of L.W.1's injuries as documented on February 8.

The defence observes that L.W.1 has a long history of traumatic injury over the time that Mrs. M.W.2 acted as her primary caregiver, including the buckle bruise in early February 2013. Mr. M.W.1 was rarely home when L.W.1 was awake. He did not check her for marks and bruises and received his information in that regard from Mrs. M.W.2. Because of that, Mr. M.W.1 is not in a position to offer direct evidence about the extent of any bruising on L.W.1 immediately prior to the time that he was alone with her on February 6, 2013 or direct evidence about whether she was subjected to blunt force trauma resulting in injury on any of February 4, 5, or 6, before he was alone with her, or February 7, 2013. During that time period, L.W.1 was predominantly alone in Mrs. M.W.2 and Mrs. B.R.'s care, respectively. Mr. M.W.1 further submits that Mrs. M.W.2 and Mrs. B.R. are incredible and their evidence about whether L.W.1 sustained contemporaneous injuries before or after the time she was alone with him on February 6, 2013 ought to be rejected.

In arriving at the findings on this issue, I accept the uncontradicted evidence of Dr. Angelilli that the left rib fracture, liver laceration, jejunal hematoma, and the abdominal bruising that L.W.1 presented with at the DMC on February 8, 2013 all resulted from the application of blunt force. There is no evidence that a natural disease process or non-traumatic ideology caused any of those injuries. Further, I accept Dr. Bütter's uncontradicted evidence that the intestinal stricture that resulted in the bowel obstruction, which was the subject of surgery on March 2, 2013, was caused by the application of blunt force to L.W.1 and her evidence that the surgically treated bowel obstruction was not the result of natural disease process, congenital defect, or other non-traumatic etiology.

I also accept Dr. Angelilli's evidence that since L.W.1's left rib fracture evidenced healing as of February 8, 2013, the rib was fractured at least seven days before that time. From that I infer that on or before February 1, 2013, L.W.1 sustained blunt force trauma that fractured at least one of her ribs. I, therefore, find that the left rib fracture was not caused when L.W.1 was alone with Mr. M.W.1 on February 6, 2013.

I also accept Dr. Angelilli's evidence that:

a. She cannot, with precision, age L.W.1's liver laceration or her bruising observed at the DMC;

b. It is possible that each of the liver laceration, abdominal bruising, and rib fracture could have occurred at different times;

c. The location of L.W.1's rib fracture on the left side and the liver laceration on the right side is consistent with those injuries being inflicted by different blunt force trauma's; and

d. A traumatic force sufficient to cause external abdominal bruising, like the buckle bruise, could also be associated with internal injury.

I accept Dr. Angelilli's evidence and find that L.W.1's liver injury was caused as a result of an abdominal trauma as opposed to a posterior trauma. While Dr. Angelilli acknowledges the possibility that a posterior trauma "could" result in an injury to the rear portion of the liver without injuring the rib cage, it did not cause her to alter her opinion that the traumatic blow resulting in a liver laceration was applied to the front of L.W.1's body, and I accept that evidence.

Further, based on her evidence, which I accept, I find that the elongated bruising on L.W.1's abdomen and the internal bleeding resulting in the jejunal hematoma resulted from trauma to L.W.1's abdomen. I accept her evidence that the bowel obstruction resulted from the sequelae of bleeding in the jejunum, specifically the formation of the hematoma, which put pressure on L.W.1's intestine in a particular area and "caused it to be blocked off".

I accept Dr. Bütter's uncontradicted evidence that:

a. The jejunal hematoma that L.W.1 presented with at the DMC references a large blood clot in a portion of the first half of L.W.1's small bowel that resulted from a period of active intestinal bleeding;

b. A hematoma is expected to be reabsorbed within the body within a week or two after active bleeding stops;

c. Active bleeding usually stops within a few hours of commencing;

d. L.W.1's jejunal hematoma was absorbed over time. Once it was fully absorbed it left a hole in the mesentery servicing the jejunum where the hematoma was located. In essence, the hole in L.W.1's mesentery was located where the jejunal hematoma was previously located;

e. A five centimetre section of a loop in L.W.1's jejunum was deprived of blood as a result of the mesentery hole;

f. As a result of the deprivation of blood flow, the affected portion of L.W.1's jejunum scarred down causing a stricture and ultimately resulting in a bowel obstruction;

g. The majority of bowel strictures develop within two to six weeks after the original causative traumatic injury with many developing in the range of four to six weeks. In some instances a stricture can develop up to eight to 12 weeks from the time of the originating traumatic event; and

h. If a buckle was pressed against L.W.1's abdomen with sufficient force to cause external bruising it is possible that she could have sustained "internal damage" as a result.

In a result, the medical evidence is not, on its own, determinative of the specific date or dates L.W.1 sustained the traumatic injuries that she presented with on February 8, 2013. However, the analysis does not end there. The medical evidence must be considered in the context of the evidence as a whole.

I will start with the issue of "bruising". M.W.2 testifies, and I accept, that at the end of January or beginning of February 2013 she discovered the buckle bruise on L.W.1's right abdomen. Mr. M.W.1 testifies that he saw the buckle bruise before February 4. According to Mrs. M.W.2 the buckle bruise was still visible on February 4, 2013 when she brought L.W.1 to Dr. Morgan, and I accept that evidence.

Mrs. M.W.2 testifies that no new bruising occurred between February 4 and February 6, 2013, prior to Mr. M.W.1 being alone with L.W.1. Mrs. B.R. states that she changed L.W.1 on the afternoon of February 6, 2013 and did not observe marks or injuries on her. However, she also stated the buckle mark was still on L.W.1's abdomen on February 6, 2013. I accept Mrs. M.W.2's evidence that the buckle bruise was still present on February 6, 2013 before Mr. M.W.1 was alone with L.W.1.

I also accept Mrs. M.W.2's evidence that L.W.1 did not sustain any new bruising or trauma from the time of the onset of the buckle bruise until the time she was alone with Mr. M.W.1 on February 6, 2013. The Crown has urged me to reach that finding, in part, by drawing inferences from Mrs. M.W.2's evidence that Dr. Morgan saw the buckle bruise on February 4, 2013 and did not order any follow-up as a result. The Crown submits that from that evidence, inferences can be drawn that L.W.1's "injuries" as of February 4, 2013 were restricted to the buckle bruise and that Dr. Morgan did not believe L.W.1 had internal injuries because she did not arrange any follow-up investigations. I am not prepared to draw those inferences based solely on Mrs. M.W.2's description of the February 4th appointment. Dr. Morgan was not called to give evidence with respect to her findings, opinions, and conclusions arising out of her examination of L.W.1 on February 4, 2013 or at all, and she was not the subject of cross-examination. In that context, I am not prepared to make findings about her opinions and conclusions through inferences and thereafter make factual findings based on the opinions and conclusions that I infer.

However, I have already determined that M.W.2 did not injure L.W.1 by the application of force at any time. I also find, on the evidence as a whole, that Mrs. B.R. did not harm L.W.1 through the intentional application of force at any time. She denies doing so and there is no evidence which contradicts her on that point, either directly or in a compelling circumstantial manner. Both Mr. and Mrs. M.W.2 advised Michigan CPS workers that they did not believe Mrs. B.R. intentionally harmed L.W.1. Neither of them gave evidence that they suspected that she harmed L.W.1.

In making that finding, I remain mindful that Mrs. B.R.'s credibility is suspect given her repeated telling of "the lie" and her fabrication of details of the drop/catch while under oath in KGB statements. Further, I remain mindful that aspects of her evidence are unreliable as I have previously outlined. Nonetheless, and while I appreciate that her evidence should be approached with caution, there is very little evidence to support a finding that she injured L.W.1 through the intentional application of force, ever, and I do not conclude that Mrs. B.R. harmed L.W.1 through the intentional application of force on or around February 6, 2013, or at all, and I am not left with a reasonable doubt in that regard.

I accept Mrs. M.W.2's evidence that on February 6, 2013, L.W.1 did not present with any bruises apart from the buckle bruise and she was eating well. In my view, Mrs. M.W.2's evidence with respect to the lack of additional indicia of trauma to or bruising on L.W.1 after the buckle bruise incident up to the point that Mr. M.W.1 was alone with her on February 6, 2013 is consistent with the text messages that passed between Mr. and Mrs. M.W.2 during that time and, to an extent, Mr. M.W.1's evidence at trial.

As I've previously observed, there is demonstrable evidence of Mrs. M.W.2's historical practice of advising Mr. M.W.1 of new bruises or other evidence of injury to L.W.1 contemporaneous to the time she discovered it, by showing it to him or texting him about it. She also discussed the discovery of new injuries with him and expressed any concerns she had as a result. The text messages passing between Mr. and Mrs. M.W.2 in the days prior to February 6, 2013 do not evidence that Mrs. M.W.2 disclosed any new injuries, trauma, or concern to Mr. M.W.1 with respect to L.W.1's condition at all. The only injury that either of them deposed to at trial in that time period was the buckle bruise. Although it was not the subject of any text messages, Mr. M.W.1 recalls seeing it the weekend before February 6, 2013. He did not testify to having any concerns about it and he did not testify that Mrs. M.W.2 expressed concerns about it to him.

The evidence about L.W.1's physical condition immediately before the time Mr. M.W.1 was alone with her on February 6, and the lack of text messages from Mrs. M.W.2 to Mr. M.W.1 about concerns on her part about L.W.1's health in the days prior to February 6, stand in stark contrast to the content of Mrs. M.W.2's text messages on February 7, 2013. In the latter, she provided detailed updates to Mr. M.W.1 with respect to L.W.1's poor health status including ongoing vomiting and poor eating, the possibility of internal damage to L.W.1, and concerns with respect to W.E.C.A.S. involvement. Mrs. M.W.2's text messages from February 1 to February 6, 2013 do not evidence that she reported similar symptoms or concerns to Mr. M.W.1 before the time he was alone with L.W.1 on February 6, and neither Mr. nor Mrs. M.W.2 testified to having such concerns at all during that time.

For his part, Mr. M.W.1's evidence does not indicate that Mrs. M.W.2 advised him of any new bruises, injuries, or trauma to L.W.1 after the buckle bruise incident up to February 6. Mr. M.W.1's evidence does not indicate that he, independent of Mrs. M.W.2, detected any new bruises or indicia of injury to L.W.1 after the buckle bruise was brought to his attention and prior to the time he was alone with L.W.1 on February 6, 2013. Instead, Mr. M.W.1 indicates that he last changed L.W.1 a day or two before February 6, 2013 and he did not see any bruising at that time, whether a toonie-sized circular bruise about two inches in diameter or otherwise.

He also indicates that he played with L.W.1 on February 6 prior to the drop/catch. He does not indicate that L.W.1 appeared to be in distress or discomfort or that she was lethargic or avoiding eye contact before the drop/catch. Indeed, there is no evidence that L.W.1 appeared to be in distress or discomfort or lethargic at any time between the time she sustained the buckle bruise and the time she was alone with Mr. M.W.1 on February 6. The evidence is to the contrary as I summarized above.

I accept the evidence that bruising cannot be aged with precision and that bruising does not appear instantaneously. I also accept Mrs. M.W.2's evidence, as confirmed by Mr. M.W.1's evidence, that she first saw L.W.1's bruises at 9:30 p.m. on February 6, 2013, several hours after force, said to be accidental, was applied to L.W.1's right abdomen by Mr. M.W.1. I accept her evidence that she observed an area of bruising on L.W.1's right abdominal area that was much larger than the single bruise, the buckle bruise, that L.W.1 presented with before Mr. M.W.1 was alone with her on February 6.

I also accept the uncontradicted evidence that L.W.1 presented with bruising on her right abdominal area at Windsor Regional Hospital and the DMC on February 8, 2013 that was the result of traumatic blunt force. The only direct evidence of traumatic force being applied to L.W.1's right abdominal area after she sustained the buckle bruise is the evidence of the blunt force applied by Mr. M.W.1 to that area on February 6, 2013.

In a result the evidence that I accept establishes and I find:

1. Before Mr. M.W.1 was alone with L.W.1 on February 6, 2013, her external bruising was limited to a one inch by two inch bruise on her right abdomen;

2. While he was alone with L.W.1 on February 6, 2013, Mr. M.W.1 applied blunt force to her right abdominal area;

3. Several hours later, bruising that was larger and more severe than the buckle bruise was first observed on L.W.1's right abdomen; and

4. Neither Mrs. M.W.2 nor Mrs. B.R. applied blunt force to L.W.1's body between the time the buckle bruise was caused until the time that Mr. M.W.1 was alone with L.W.1 on February 6, 2013.

I am also satisfied that L.W.1 did not experience blunt force trauma to her right abdominal area between the time that Mrs. M.W.2 returned from the swimming lesson on February 6, 2013 and the time that L.W.1 presented at Windsor Regional Hospital on February 8. During that time, she remained in the care of Mrs. M.W.2 and/or Mr. M.W.1. Neither of them testified to additional trauma during that time. The text messages passing between them on February 7, 2013 do not disclose additional trauma to L.W.1. I have already concluded that Mrs. M.W.2 did not intentionally apply force to L.W.1 during that time or at all. Further, during their February 7, 2013 text message exchange, Mr. M.W.1 authored a text which is consistent with his subjective belief that L.W.1's bruising was causily related to his actions on February 6, 2013, which I have already reviewed.

Incidentally, the balance of the text messages they exchanged on the morning of February 7, 2013 are consistent with Mrs. M.W.2's testimony that evidences a dramatic change in L.W.1's reported condition between the period of time immediately preceding the time that Mr. M.W.1 was alone with L.W.1 on February 6 and the time period immediately after Mr. M.W.1 was alone with L.W.1, including the manifestation of more severe bruising than the buckle bruise and the onset of persistent vomiting.

In a result, I am satisfied that the force that Mr. M.W.1 applied to L.W.1 on February 6, 2013 resulted in the bruising that L.W.1 presented with at Windsor Regional Hospital on February 8 and at the DMC later that day. The evidence, including the defence evidence considered in the context of the evidence as a whole, does not leave me with a reasonable doubt in that regard.

Turning to the bowel obstruction identified at the DMC. Based on Dr. Angelilli's evidence that I previously reviewed and accepted, I find that the obstruction resulted from pressure put on a specific area of L.W.1's bowel by the hematoma, causing it to be blocked. I have accepted Dr. Bütter's evidence that: A jejunal hematoma results from localized active internal bleeding; a hematoma begins to form when active bleeding stops, which is usually within a few hours of when it starts; and typically a hematoma is reabsorbed within one to two weeks of its formation. In my view, all of that evidence informs the determination of the issue of causation with respect to the hematoma.

According to Dr. Angelilli, the upper G.I. investigation that L.W.1 underwent at the DMC evidences a bowel obstruction, and I accept her uncontradicted evidence in that regard. I also find that L.W.1 presented with symptoms consistent with a bowel obstruction on February 7, 2013, specifically bilious vomiting late in the day preceded by persistent vomiting that started with the first time that Mrs. M.W.2 attempted to feed L.W.1 after Mr. M.W.1 was alone with her on February 6 and which gradually changed to a yellowish colour before becoming bilious at approximately 7:30 p.m. on February 7. In that regard, I accept the evidence of Mrs. M.W.2's observations of L.W.1 during that time.

There is no evidence that L.W.1 exhibited repeated persistent vomiting between the time she suffered the buckle bruise and the time she was alone with Mr. M.W.1 on February 6. There is no evidence that L.W.1 engaged in bilious vomiting at any time before the time that she was alone with Mr. M.W.1 on February 6, 2013.

I accept the uncontradicted evidence of Drs. Angellili, Bütter, and Deshpande that bilious vomiting is a recognized symptom of a bowel obstruction. I accept the uncontradicted evidence of Dr. Bütter that an infant with a complete bowel obstruction will absolutely exhibit symptoms, most notably bilious vomiting, within the same day that the bowel becomes obstructed. I also accept her evidence that at the beginning stages of an infant's bilious vomiting, the colour of the vomit may appear as a milk colour with a yellow or green tinge if the vomit is mixed with formula.

In short, L.W.1 did not present with symptoms of a bowel obstruction before she was alone with Mr. M.W.1 on February 6, 2013, but she did present with symptoms of a bowel obstruction within a day of being alone with him.

Based on all of the foregoing evidence, I find that the blunt force that was applied to L.W.1 by Mr. M.W.1 on February 6, 2013 caused active internal bleeding in the small intestine of L.W.1's bowel which ultimately resulted in a jejunal hematoma, which caused a bowel obstruction in the manner Dr. Angelilli described. As a result, L.W.1 engaged in repeated vomiting and eventually bilious vomiting within the same day that the obstruction manifested itself. I am not left with a reasonable doubt with respect to any of those findings.

I specifically find that the trauma that resulted in the buckle bruise did not cause the jejunal hematoma, and I am not left with a reasonable doubt in that regard. L.W.1's bilious vomiting began within a day of the blunt force trauma she sustained while alone with Mr. M.W.1 on February 6, 2013, whether accidental or otherwise. That timeline is consistent with the hematoma developing as a result of the cessation of active intestinal bleeding that was caused by that trauma which, based on Dr. Bütter's evidence, would have been expected to stop within a few hours after it started, post trauma, and the hematoma would then form.

Had the buckle bruise incident caused active intestinal bleeding, on the evidence I accept, that bleeding would have been expected to stop within hours of the trauma leading to the buckle bruise and the hematoma that caused the obstruction would have begun to form at that time.

Based on the evidence that I accept, symptoms of a bowel obstruction are necessarily exhibited within the same day as the obstruction occurs. There is no evidence that L.W.1 exhibited symptoms of a bowel obstruction before Mr. M.W.1 was alone with her on February 6, 2013. There is no evidence that suggests that had the trauma that resulted in the buckle bruise also resulted in a jejunal hematoma, the hematoma would have been expected to gradually increase in size over the course of several days until it impinged on the bowel and caused an obstruction on February 6 or 7