Court File and Parties
Court File No.: CR-12-02530 Date: 2017-06-13 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – C.W. Defendant
Counsel: Mr. J. Pearson, for the Crown Mr. B. Ross, for the Defendant
Heard: February 27, 28, March 1, 6, 9, 13, 14, 15, 16, 17, 20, May 1, 2017
Reasons for Judgment
Regional Senior Justice Fuerst
Introduction
[1] Around 7:00 a.m. on August 29, 2011, P.Y. took her healthy 14 month old daughter, C.L., to the Markham home of her sister and brother in-law, S.Y. and C.W. (also known as “S.W.”.) Just as she had for the preceding three months, P.Y. left C.L. to be cared for by her sister, while P.Y. and her husband were at work.
[2] P.Y. had every expectation that she would pick up C.L. at the end of the work day and take her home, as usual. There was no reason for her to think otherwise.
[3] C.L. never returned home. Shortly after 4:30 p.m. on August 29, just as her mother arrived at the W.’ home to pick her up, C.L. was rushed by ambulance to a local hospital.
[4] Around 11:00 that night, P.Y. and her husband, R.L., learned that C.L. had suffered a skull fracture, and would not survive.
[5] Months later, C.L.’s uncle, S.W., was charged with her second degree murder.
[6] Mr. C.W. stood trial before me, sitting without a jury.
[7] My task is to determine whether, on the admissible evidence, the Crown has established Mr. C.W.’s guilt of second degree murder, or alternatively, of manslaughter, beyond a reasonable doubt.
[8] The death of a child is a terrible tragedy, both for her loved ones, and also for the community at large. But, it is important that such cases be investigated objectively, and decided on the admissible evidence, without sympathy or prejudice. In this case, I had the benefit of expert evidence from Dr. Charis Kepron and Dr. Michelle Shouldice, both of whom were careful, measured, and fair in describing their findings and expressing their opinions.
Background
[9] C.L. was born on […], 2010, to loving parents, P.Y. and R.L.. She was their first child. She also was the niece of P.Y.’s older sister, S.Y. and S.Y.’s husband, S.W..
[10] To avoid confusion, I will refer throughout these Reasons to P.Y. as “P.Y.”, to S.Y. as “S.Y.”, and to the couples as “the L.” and “the W.”.
[11] The evidence is uncontradicted that the two couples were very close, even before the W. married in 2002. That closeness continued, and was enhanced once the couples had children. The families lived not far from one another, and often spent time together at each others’ homes.
The Evidence at Trial
(a) The W.s’ Circumstances in 2011
[12] In 2011, the W. lived in a spacious home in Markham, with their two daughters. In August 2011, their older child was five years of age. Their younger daughter was about four months old. Mr. C.W.’s mother also lived in the home.
[13] Mr. C.W. ceased to be employed full-time in November 2010. He testified that the loss of his job was unexpected. He did not receive employment benefits. He was unemployed other than for some telemarketing work, which provided a minimal income. As of April 2011, S.Y. was on maternity leave from her job. She received employment insurance benefits, but her income was reduced from its normal level. The couple had a $290,000 mortgage on their home, which required bi-weekly payments of about $1100.
[14] Crown counsel suggested to both Mr. C.W. and S.Y. that by August 2011, they were in financial difficulty. Both denied that this was so. They each said that they had some savings, they sold an apartment they had bought as an investment for a profit of around $10,000, and they borrowed money from Mr. C.W.’s retired mother.
[15] Mr. C.W. admitted that in the latter part of October 2011, he and his wife turned in a leased car, several months early. He said they did so because they had two cars, and did not need a second car as he was unemployed. He said that he learned only later, that in October 2011 his wife borrowed $30,000 from her brother. Mr. C.W. maintained that he was not under financial stress, and that if he needed money, he could have worked at a Chinese restaurant for cash, or at McDonald’s.
[16] Mr. C.W. testified that after he lost his job, he decided to take the courses to become a real estate salesperson. He began the courses before S.Y. went on maternity leave. He had to take a series of exams, each of which cost approximately $500, and he had to score at least 70 per cent on each exam to pass.
[17] Mr. C.W. is 66 inches tall. From his chin to his feet is 56 inches.
(b) The Child Care Arrangement
[18] The L. testified that in the spring of 2011, as P.Y.’s one year maternity leave was approaching its end, they began to look at child care options. P.Y. and S.Y. discussed the option of S.Y. caring for C.L., as S.Y.’s maternity leave would continue for months. S.Y. testified that she told P.Y. she would take care of C.L. if there was no-one else to do so.
[19] The L. knew that the W.’ home was clean, and had toys and proper equipment for children. They thought that Mr. C.W. or his mother could help S.Y. if needed. The L. were satisfied that C.L. would be well-looked after in the W.’ home.
[20] S.Y. said that she asked her husband about caring for C.L. in their home. He told her that it was okay with him. His mother, however, objected to the idea, and told the W. that she would not help care for C.L..
[21] Ultimately, it was agreed between S.Y. and P.Y. that S.Y. would care for C.L. in her home on weekdays. This started in June. The L. paid $25 per day for C.L.’s care. S.Y. testified that the money was offered by P.Y.. S.Y. said that she did not ask to be paid. She was not caring for C.L. for the money.
[22] Usually P.Y. would drop C.L. off at the house around 7:00 a.m., and pick her up around 4:30 p.m. or a bit later. On occasion, Mr. R.L. dropped off C.L..
[23] Sometimes S.Y. took C.L. from her parent, and sometimes Mr. C.W. did so. P.Y. said at first C.L. cried when she was dropped off, but after awhile that no longer happened. Mr. R.L. said C.L. did not cry when he left her. S.Y. said that for the first month, C.L. cried every time she was dropped off.
[24] The L. testified that for the first two weeks, the W. told them that C.L. required a lot of attention, and that she was crying a lot. After that, they said she was fine. They did not say that she was crying too much.
[25] S.Y. said that C.L. cried a lot for the first month. She preferred to have people with her and if left alone, she cried. She cried when she was being put down to sleep, and when she woke up. S.Y. said that she and Mr. C.W. considered the crying normal.
[26] S.Y. said that C.L. would go back to sleep after she came to the house, and would nap again after lunch. C.L. slept in the playpen that was kept in the sitting room. She was a very slow eater, and it would take close to two hours to feed her lunch.
[27] Mr. C.W. testified that for the first few weeks C.L. came to the house, she cried. Both he and S.Y. would try to calm her by holding her, walking around the house with her, and rocking her. Once she got used to the environment of their home, she cried much less.
[28] S.Y. testified that her husband helped her with C.L.. He would not change her, but he helped feed her, helped to teach her to crawl and walk, and played with her. If she was crying, it was not unusual for him to walk around with her and soothe her. There were times when he would be alone with C.L. because S.Y. was upstairs. S.Y. did not leave the house when C.L. was there.
[29] Mr. C.W. testified that he fed C.L. if she was hungry, played with her, and tried to teach her to do things like walk. But he agreed in cross-examination that it was mainly S.Y. who looked after C.L..
[30] The L. brought a bag to the house each day with formula, food, extra clothes, toys and diapers for C.L.. S.Y. said that her practice was to get C.L.’s bag ready for pick-up before P.Y. arrived at the end of the day, and to put it on the change table of the playpen.
[31] At some point, the W. told the L. to have a back-up plan for C.L.’s day care, in case they were not available for some reason. The L. testified that the W. did not say they no longer wanted to care for C.L.. S.Y. testified that she never considered giving C.L. back to P.Y., nor did anyone suggest that should happen. S.Y. felt that she could handle looking after C.L.. She would have told P.Y. if she no longer wanted to care for C.L..
(c) C.L.’s Health as of August 2011
[32] By the end of August 2011, C.L. was starting to walk, but needed to hold onto furniture or someone’s hands for assistance. She could crawl fast, sit up, and push herself up from the floor to a standing position by leaning or grabbing onto something. If she lost her balance, she would fall on her bum. Neither parent saw her fall backward and hit her head. They never took her for medical care because of a fall.
[33] S.Y. testified that she saw C.L. fall a few times, but that no injuries resulted. When her husband helped C.L. learn to walk, he was very careful and gave her support. S.Y. never saw C.L. bang her head, or suffer any injury in their home.
[34] At one point, Mr. R.L. noticed a bruise on C.L.’s forehead. His wife told him it could be that she and C.L. tried to kiss and bumped heads.
[35] P.Y. said that when she picked up C.L. on August 26, she noticed a little bruise on her forehead at the right side. She asked S.Y. about it. S.Y. told her that C.L. had it when she came to the house that day. S.Y. testified that she saw red marks on C.L.’s forehead, and thought it was a rash. She mentioned it to P.Y..
[36] C.L.’s parents did not see C.L. fall or suffer an injury on the weekend before August 29. Her behaviour that weekend was normal.
[37] Mr. C.W. testified that he did not cause bruising to C.L.’s head in the days leading up to August 29.
(d) August 29, 2011
[38] P.Y. testified that she brought C.L. to the house on the morning of Monday August 29. She gave C.L. to Mr. C.W.. She said that his demeanour was normal.
[39] S.Y. testified that she was the one who received C.L. from P.Y. that morning. Everyone else in the house was asleep.
[40] Mr. C.W. testified that P.Y. dropped off C.L. to him that day, just as S.Y. came downstairs. He gave C.L. to S.Y., and then went back to sleep upstairs.
[41] S.Y. testified that she fed C.L. her bottle, then put her to sleep in the playpen. There was nothing abnormal about C.L., although it was more difficult to put her to sleep that morning. S.Y. went to sleep in the baby’s room until around 9:00 a.m., when she awoke to feed her. The bedroom door was open and S.Y. was able to hear noises and voices from downstairs. She heard C.L. making noises, so she went downstairs with her baby.
[42] Later that morning, the W.’ older daughter left the house with Mr. C.W.’s mother for an outing. S.Y. said that she first saw her husband between 11:00 a.m. and noon. He had been sleeping in their bedroom upstairs.
[43] S.Y. said that she fed C.L. lunch. Then S.Y. had lunch with her husband. C.L. and the baby were in the kitchen. Mr. C.W. talked to and interacted with C.L.. At some point, S.Y. took their baby upstairs and put her to sleep.
[44] Mr. C.W. testified that he got up at noon. He came down to the kitchen where S.Y. was with C.L. and the baby. He made himself lunch and asked S.Y. if there was anything he could help to prepare. They ate together, with S.Y. feeding C.L..
[45] S.Y. said that Mr. C.W. was going to study at home that day for a real estate exam that he had coming up. He was going to study in their library. He did not seem stressed. He did not say that he had to leave the house to study elsewhere.
[46] Mr. C.W. testified that he had an exam on Saturday September 3. He had to prepare for it, but he was not feeling stressed. In cross-examination he agreed that if he failed, he would need to pay a fee to rewrite the exam. He denied the suggestion that he was under financial stress on August 29. It was just a regular day.
[47] Mr. C.W. testified that after lunch, he went into the library to study. He took some breaks, and came out and spoke to S.Y.. He played with the children in the sitting room where the playpen was located. The browsing history on his computer shows that at 2:45 p.m. he accessed a website called Passit.ca, which was an online study guide for Ontario real estate courses, and at 3:09 p.m. he accessed another website. Then there was a period showing no change in websites accessed, until 3:50 p.m. From 3:50 p.m. to 4:05 p.m., the computer was again used to access various websites, including Passit.
[48] S.Y. said that after lunch, C.L. was either in the playpen or with her on the couch in the living room. S.Y. played with her. Mr. C.W. was in and out of the library. His mood was normal.
[49] S.Y. testified that she went upstairs at 3:30 p.m., because she heard the baby waking up. C.L. was sleeping in the playpen, where S.Y. had put her. Mr. C.W. was in the library.
[50] S.Y. denied hurting C.L., or seeing her get injured in any way, before she went upstairs at 3:30 p.m.
[51] S.Y. said that she took the baby into the master bedroom and fed her there. The bedroom door was open. She said that she was able to hear from there if C.L. was crying in the playpen.
[52] S.Y. said that some time before 4:00 p.m., Mr. C.W. came up to the bedroom with a glass of water for her. He also brought her a milk tea. She had not asked him to do this. His mood was very normal. She did not hear C.L. crying.
[53] Mr. C.W. testified that at 3:30 p.m. S.Y. went upstairs with their baby to put her to sleep. He was in the library. He studied for a little bit. C.L. was in the playpen. At some point before 3:50 p.m., he came out and checked on her because she was mumbling and crying a little. He took her out of the playpen, rocked her, and put her back in the playpen. She was half asleep.
[54] He said that he took S.Y. a tea made with condensed milk, which she liked. At that point C.L. was half asleep and not crying, but she was making mumbling noises.
(e) The Video Recording
[55] S.Y. testified that after her husband brought her the tea, she called him to come upstairs again. Their baby was sitting up for the first time, and she wanted him to see it. He did not tell her to leave him alone, that he was studying. He came upstairs and saw the baby, went downstairs to get his camera, and returned with it. S.Y. did not hear C.L. crying during that time.
[56] Mr. C.W. took two videos of the baby during the time span 4:07 to 4:14 p.m. S.Y. said that he and she were very happy and laughing. During that time, she did not hear C.L. making any sounds.
[57] Mr. C.W. testified that S.Y. called him back upstairs after he brought her the milk tea, because the baby was able to sit up. He went upstairs and saw his daughter sitting up. It was a really happy moment. S.Y. told him to get the camera. He went downstairs for it. C.L. was in the playpen. He did not recall that she was crying.
[58] He went back upstairs with the camera and took videos and photographs of the baby. He and S.Y. were very happy. He did not recall hearing C.L. crying during that time. The door of the master bedroom was open, and if C.L. cried loudly from downstairs he would have been able to hear it.
[59] S.Y. testified that after he took the videos, Mr. C.W. stayed for a few minutes, and then went downstairs. In examination in-chief she said that after he left she heard C.L. kind of sobbing on and off. She heard her husband say in Cantonese, “Don’t cry, be a good girl, mommy will be back soon.” She heard him walking around downstairs. In cross-examination she said that she heard her husband’s voice travelling from different rooms, C.L. crying just a little bit, and her husband trying to comfort C.L.. It was what she always heard. She did not hear C.L. screaming, or even crying loudly. Her husband was speaking in a soothing tone. She did not hear anything inappropriate going on. She had seen her husband walking around holding and consoling C.L. before.
(f) Mr. W.’s Account of the Injury Event
[60] Mr. C.W. testified that once he took the videos, he realized that P.Y. would be coming soon to pick up C.L., so he went downstairs to try to get things prepared. C.L. was in the playpen, awake and crying a little bit. He packed up some things. Because C.L. was crying, he picked her up out of the playpen to try to comfort her. He walked around the main floor, rocking her and telling her that her mom was coming, to be a good girl. He spoke to her in Cantonese, in a normal tone of voice.
[61] He said that C.L. continued to cry. He wanted to get her something to eat or drink, so he went into the kitchen with her. There was a bag on the kitchen island that contained food and drink for C.L., as shown in a photograph entered as an exhibit.
[62] Mr. C.W. said that he was in the kitchen in the area between the island and the refrigerator. He was holding C.L. with both hands at his chest, with his elbows at his waist. He lifted her up to switch her from his left to his right shoulder, in order to free up his left hand. He lost his grip and she dropped to the floor. Her head hit the kitchen floor, hard.
[63] The evidence was that the kitchen floor was ceramic tile over cement.
[64] He said that he picked C.L. up. In cross-examination, he agreed that he knew she hit her head and was badly hurt, but he did not yell to S.Y. or call 911. The first thing that came to his mind was to see if C.L. was okay.
[65] He did not see any bleeding, but C.L. started choking and her eyes started closing. He grabbed her under the arms and shook her a few times to try to wake her. She did not respond. Then she went limp. He was very scared. He took C.L. to the sofa, thinking that maybe he should do CPR. At that point S.Y. came downstairs. He was holding C.L., who was limp. S.Y. asked him what happened. He said that he did not know. He tried to do CPR because C.L. did not seem to be breathing. He told S.Y. to call 911.
[66] S.Y. testified that while she was still in the master bedroom, she heard it go quiet downstairs. She went downstairs with the baby. Her husband was in the living room, standing next to the couch. C.L. was in his hands, which were extended out in front of him. C.L.’s hands were dropping down, and she was breathing heavily. S.Y. asked what happened. Her husband said, “I don’t know.” He said that C.L. was like that when he picked her up from the playpen. He put C.L. on the couch and tried to do CPR. He asked S.Y. to call for an ambulance, and she did.
[67] In cross-examination, Mr. C.W. denied that he critically injured C.L. earlier, and picked her up from the playpen only to check the extent of her injury.
[68] Mr. C.W. was cross-examined on his computer activity based on the browsing history. He denied that he injured C.L. between 3:30 and 3:50 p.m. He agreed that between 3:30 and 3:50 p.m., he took C.L. out of the playpen briefly and put her back in. He denied that she was irritating him. He said that his computer was a laptop and he could have taken it anywhere in the house, including the loft, to study. Alternatively, he could have gone to a library outside the home to study.
(g) The Summoning of Emergency Help
[69] The 911 call was made at 4:26 p.m. S.Y. told the calltaker that C.L. was in a kind of coma situation, and gave information including that C.L. was breathing and had a heartbeat.
[70] Although it was S.Y. who initially spoke to the 911 calltaker, Mr. C.W. could be heard in the background indicating that C.L. did not have a fall.
[71] When S.Y. said that her husband was trying to do CPR to help C.L. breathe, the calltaker instructed not to do it if the child was breathing. Mr. C.W. then got on the phone and told the calltaker that C.L. was breathing but not normally, her heart was beating, and her eyes were closing. He said that they had put her flat on the floor. The calltaker told him to roll C.L. onto her side. Mr. C.W. told the calltaker that once C.L. was on her side, she was breathing in and out.
[72] Joanna Caldwell, an Advanced Care Paramedic, arrived at the house at 4:31 p.m. C.L. was on the floor on her side, about three feet from the kitchen. Mr. C.W. was kneeling on the ground behind C.L..
[73] C.L. had vomit on her nose and mouth. She was unresponsive. Her pupils were fixed and dilated. She had inadequate respiration with breaths at four to six breaths per minute. There was no rise and fall to her chest. Her pulse was fast, but she was not in cardiac or cardiorespiratory arrest.
[74] Ms. Caldwell saw vomit on the floor in the area where C.L. was, but none in the playpen.
[75] Ms. Caldwell asked Mr. C.W. what happened. S.Y. responded that that was how they found C.L.. Ms. Caldwell asked if the child had choked. Both Mr. C.W. and his wife responded that she had not. Ms. Caldwell asked if the child could have got into any medications. Both Mr. C.W. and his wife responded in the negative. Ms. Caldwell asked if the child had fallen. Both Mr. C.W. and his wife responded that she had not. Ms. Caldwell asked if the child had hit her head. Both Mr. C.W. and his wife responded that she had not.
[76] Mr. C.W. did not tell Ms. Caldwell that he dropped the child, or that there was an accident, or that the child’s head was injured in any way. He related that C.L. had been crying, so they put her in the playpen and they went upstairs to check on another child. When they came downstairs, they found C.L. unconscious, and could not wake her.
[77] Mr. C.W. agreed in cross-examination that he gave Ms. Caldwell this account. It was untrue. He acknowledged that he knew the paramedics needed to know what happened so that they could help C.L.. Nonetheless, he made up this account because he did not want anything to do with Ms. Caldwell. His concern at the time was for himself and his family.
[78] Ms. Caldwell assessed C.L. as a 3 out of 15 on the Glasgow Coma Scale. She checked for signs of trauma, but saw none. There were no injuries to the child’s face.
[79] C.L. was taken by ambulance to Markham-Stouffville Hospital.
[80] Mr. C.W. testified that at some point while all this was happening, his mother and older daughter arrived home. His mother asked him what happened. He was very scared, and so he told her that he did not know.
[81] S.Y. testified that after P.Y. arrived at the house, the two of them went to Markham-Stouffville Hospital. Mr. C.W. stayed at the house to look after their daughters. S.Y. returned home after 7:00 p.m.
[82] Mr. C.W. agreed that at 7:58 p.m. he was back on the computer, on Passit. He said that he was at home with his kids waiting for S.Y. to tell him what was happening. There was nothing he could do but study.
(h) Mr. W.’s Police Interview
[83] At 7:29 p.m., Detective Constable Boris interviewed Mr. C.W. at the house. The interview was audio-recorded. Mr. C.W. told the officer that C.L. was fine when she came to the house that morning, but that every time she came to the house she cried. Mr. C.W. was asked what caused C.L. to be taken to the hospital. He said that he and C.L. were playing in the area of the sofa. She was okay then. The baby was crying upstairs, so his wife went upstairs. He put C.L. in the playpen. She was awake. She was not crying. He went upstairs and was upstairs for about 15 minutes. He came downstairs because C.L. was crying really loud. He picked her up underneath her arms, and then cradled her and rocked her. She continued to cry. Her eyes started closing. She started coughing, but he did not see her vomit. Her face was turning red. Her hands were not moving. He thought something was wrong, so he put her on the floor. Her eyes closed more. He thought that maybe she choked, so he tried CPR, although he was not trained in CPR.
[84] Mr. C.W. testified that he did not tell Detective Constable Boris the truth. At that point, C.L. had been taken to the hospital and he did not know her state. He was very scared about what happened in his home and that he would be legally responsible. He was scared that the police might charge him and take away his kids.
[85] Mr. C.W. testified that it was not true that C.L. cried every time she came to the house, or that his baby cried, or that C.L. was crying loudly when he was upstairs. He said that she was crying to emphasize that maybe there was something wrong with her. He was trying to stay away from legal responsibility.
(i) C.L.’s Hospitalization
[86] S.Y. testified that around 9:00 p.m., P.Y. told her on the phone that C.L. had no chance of survival. S.Y. told her husband, and asked him what happened. He said that he did not know. He told her that he was going to use the computer tablet in the bedroom to see if any accident caused the situation. He told her that he was pulling up reasons that cause unconsciousness.
[87] Police examination of the computer tablet showed that Mr. C.W. conducted the following four searches: 10:06 p.m. “child+accidental+death” 10:07 p.m. “child+accidental+death” 10:09 p.m. “child+accidentally+death+charge” 10:16 p.m. “canadian+child+accidental+death+charge”.
[88] Mr. C.W. testified that he did the computer searches because he was very scared after S.Y. told him that C.L. would not survive. He wanted to know what his legal responsibility was for the accident resulting in his niece’s death while under his care. He learned from the computer search that an individual would be charged in those circumstances.
[89] Around 11:00 p.m., S.Y. and Mr. C.W. went to the Hospital for Sick Children.
[90] That night, a doctor gathered the family and told the L. and the W. that C.L. had a fractured skull. Mr. R.L. testified that he asked the W. what happened. They said they had already told P.Y.. Later, Mr. C.W. approached him and said, “Whatever happened to C.L., I’m taking full responsibility.” Mr. R.L. did not ask him what he meant.
[91] P.Y. testified that while the two couples were at the Hospital for Sick Children, she and her husband tried to find out from the W. what happened. The W. said that nothing special happened, that when they tried to wake C.L. from her nap she was in a coma. Mr. C.W. told them that whatever happened, it was his responsibility.
[92] Mr. C.W. testified that he told the L. that he wanted to take responsibility for what happened, because he felt morally responsible. He did not mean that he was legally responsible. He did not tell the L. what happened, because he did not know how to face them or his wife, and he was hoping that C.L. would recover.
[93] He denied that he hit or violently shook C.L. on August 29.
[94] C.L. was pronounced dead at 4:57 p.m. on August 30, 2011.
(j) The Aftermath
[95] On August 30, 2011, Mr. C.W. was interviewed at length by Sergeant Papineau. The interview was accusatorial in nature. Subsequently, on September 2, 2011, Mr. C.W. did a computer search of s. 235 of the Criminal Code. He testified that he had talked to some lawyers, and was very scared. He learned that the offence of murder required doing something intentionally.
[96] The Childrens’ Aid Society intervened and apprehended the W.’ children. Ultimately they were returned to the home to the care of S.Y. and her mother-in-law, with Mr. C.W. being permitted to come to the house when he was not working.
[97] After C.L.’s death, the W. did not go to the L.’ home, nor did the L. go the W.’ home. The L. testified that there is a Chinese superstition that it is bad luck to go to the house of someone who died, although P.Y. said that close relatives should not hold that superstition. She said that she was really mad that the W. did not take good care of C.L., and she did not want to see them.
[98] S.Y. testified that after August 29, she suggested going to the L.’ home to talk about what happened, but the L. did not want that. They never asked to come to the W.’ home to talk. S.Y. said that the Chinese superstition does not prevent visiting someone close to the family who suffered a loss, and that it played no role in the lack of visits to the L.’ home.
[99] In late September 2011, the L. learned from one of the doctors that C.L. had not fallen in the playpen as the L. had assumed, and that her injuries could have been caused by shaken baby syndrome. On October 3, 2011, the police told the L. that Dr. Shouldice thought there was violent shaking or a crushing injury to C.L.’s head. The L. testified that the police told them they thought C.L.’s injury was caused by one of the W.. The police put recorders in the L.’ home to record any conversations they had with the W..
[100] As a result, the L. invited the W. to come over for dinner on October 20, 2011. The L. were acting as police agents. They wanted to find out what had happened to their daughter.
[101] After dinner, Mr. R.L. asked Mr. C.W. what happened. Mr. C.W. asked what Mr. R.L. knew, and said that Mr. R.L. could know more than he did. Mr. C.W. said that he already told it to the police. He did not tell the L. that he dropped C.L., or that he had been holding her, or that she had fallen down.
[102] After the W. left the house, the police arrived to speak to the L.. While the officers were there, Mr. C.W. drove by the house three times. He testified that when he went to the L.’ home, he thought the police were trying to listen to him, because they already accused him of hurting C.L. on purpose. When he later saw a car that looked like an undercover police car at the house, it confirmed his suspicions.
[103] S.Y. testified that she and Mr. C.W. did not discuss her testimony. There were things about the incident he could not talk about with her, because of legal advice he received.
(k) The Medical Evidence
[104] Dr. Charis Kepron is a Forensic Pathologist with the Ontario Forensic Pathology Service, and an Investigating Coroner with the Office of the Chief Coroner for Ontario. From January 2011 to April 2012, she was a Consultant Forensic Pathologist at the Hospital for Sick Children.
[105] Dr. Kepron performed the post-mortem examination on C.L., on September 1, 2011. She testified about her findings, as an expert in the field of forensic pathology.
[106] Dr. Kepron said that other than her injuries, C.L. appeared to be healthy and well-cared for. She was about 2.4 feet in height. Her weight at just under 19 pounds was at the lower end of the normal range for her age. She was a small child.
[107] From the neck down, everything about C.L. was normal. Dr. Kepron saw no rib fractures, or grasp marks on the arms, or evidence that C.L. had been kicked or punched, or grabbed around the neck.
[108] There were no lacerations or abrasions at the back of the head. There was an ill-defined bruise to the left side of the forehead just below the hairline. It was an injury that predated the terminal events, by three days to maybe a week or two, as there was evidence of healing. There was a bruise on the left side of the face that was recent and could have been caused by the emergency personnel or medical care at the hospital.
[109] Dr. Kepron found injury to the back of C.L.’s head. There was an area of subscalp hemorrhage (bleeding) over the right occipital bone at the back of the head. It overlay a linear fracture in the right occipital bone that started behind the right ear, a few centimetres off midline. The fracture extended vertically down to the edge of the foramen magnum, which is the hole in the bottom of the skull where the spinal cord connects with the brain stem.
[110] This hemorrhage may have been a scalp bruise that represented a point of impact where a firm object struck the head or the head struck an unyielding surface. Or, it may have just been blood tracking out of the fracture into the surrounding soft tissues.
[111] Dr. Kepron testified that a significant amount of force would have been required to cause the skull fracture. Either something hit the head, or the head hit a hard, immoveable object.
[112] In cross-examination she agreed that skull fractures have been reported in the medical literature where parents dropped a child onto hard surfaces. The parietal bone is the most common location of a fracture in such cases, not the occipital bone. However, she said that dropping a 14 month old child from four feet onto a ceramic tile floor could cause an occipital bone fracture.
[113] There was an area of hemorrhage seven by five centimetres in size directly over the midline of the back of the head. This was a bruise. She sampled it and saw iron within microphages, which indicated an injury there that likely occurred a few days before death, certainly three days, but she could not give an outer limit to the time frame. She also saw what looked like fresh blood. There were two possible interpretations. One was that there was an injury that occurred a few days before death and was showing signs of healing. The other possibility was that there was a bruise from a few days before death, with a more recent injury superimposed on it, meaning two separate injuries that happened separate in time, but in the same area of the head. The mechanism was a blunt force impact.
[114] A five by seven centimetre bruise is fairly large. It does not necessarily take a large amount of force to cause a bruise, but one this size would require enough force that anyone seeing the injury happen would realize it was not good. She would think the injury would hurt, and crying by the child would not be unexpected. It could be caused by something hitting the head, or the head hitting something of at least some firmness. In cross-examination, she agreed that it could be caused by the child falling backward and striking the back of the head on the floor, the wall, or a piece of furniture.
[115] If this bruising over the midline was recent, the impact that caused it also could have caused the skull fracture, even though the two were anatomically removed from each other. In other words, both injuries could have resulted from one impact. Or, there could have been more than one impact.
[116] There was bilateral thin film subdural hemorrhage over both sides of the head, likely from torn bridging veins. Dr. Kepron said that the medical literature describes this as being caused by direct blunt force trauma, or by violent shaking. In her opinion, this subdural hemorrhage was a result of blunt force injury. The precise location where the bleeding started could not be identified. The bleeding could be attributable to the force that caused the skull fracture.
[117] She identified dense acute hemorrhages along both optic nerve sheaths. Possible explanations for it were impact trauma, shaking, or a rise in intracranial pressure. There is a strong association between optic nerve sheath hemorrhage and retinal hemorrhages. She was aware that an ophthalmologist who examined C.L.’s eyes at the Hospital for Sick Children saw extensive bilateral retinal hemorrhages, and bilateral retinoschisis, meaning a tearing and separation of layers of the retina, causing a cavity that fills with blood. That was confirmed by a neuropathologist.
[118] Dr. Kepron said that at one time retinal hemorrhages were thought to be virtually diagnostic of violent shaking, but there has been more research done and it is known now that retinal hemorrhages can result from causes other than shaking, such as brain swelling, or certain infections. The literature says that when retinal hemorrhages are very extensive, involve multi layers of the retina, and involve the whole surface area of the retina, they are more likely the result of an inflicted head injury as opposed to brain swelling or a natural disease process.
[119] The retinal hemorrhages in C.L.’s eyes could have been caused by blunt force trauma.
[120] Retinoschisis has been reported in the literature as resulting from blunt force trauma, from a crushing force such as where an old style television set fell on a child, from a fall from a significant height, and from a high velocity motor vehicle collision.
[121] The other purported mechanism of retinoschisis in children is violent shaking. Dr. Kepron said that in theory, the whiplash effect of violent shaking can cause retinoschisis. She has not personally seen such a case. It has been reported in the medical literature. There also may be a crushing type injury from gripping of the child’s chest during the shaking, but there can be shaking without such injury.
[122] In cross-examination Dr. Kepron said that some individuals in the medical profession maintain that retinal hemorrhages and retinoschisis is diagnostic of shaking, but growing numbers of forensic pathologists are skeptical about the specificity of that finding.
[123] C.L. had significant brain swelling. Dr. Kepron said that one possible cause was blunt force impact. A force significant enough to break the occipital bone could have caused injury to the brain, resulting in brain swelling and an increase in intracranial pressure. Another possible cause was the cutting off of the blood flow to the brain and therefore the supply of oxygen to the brain, resulting in hypoxic brain injury. This can result from cardiac arrest followed by resuscitation. Dr. Kepron understood that C.L. suffered a cardiac arrest at Markham Stouffville Hospital. She said that some people in the medical profession now say that shaking an infant causes hypoxic injury to the brain, as opposed to trauma or shearing to the nerve cells. Dr. Kepron’s opinion was that the brain swelling C.L. experienced was more likely the result of the head injury itself.
[124] Dr. Kepron was asked about falls. She agreed that an intermediate fall might be described as up to 10 feet. She considers a short fall to be up to four feet. She said that a drop of a child from a caregiver’s arms from a height of 4.5 to 4.8 feet onto a hard surface could cause a skull fracture. It also could cause retinal hemorrhages. She was not aware of a published case where a drop from that height caused the extensive retinal hemorrhages C.L. had, nor was she aware of a published case in which a drop from that height caused retinoschisis. She said it was possible a fall from a height of 4.5 to 4.8 feet onto a hard surface could cause all of the injuries identified in C.L., but it was unlikely, based on her understanding of the medical literature. She was not aware, even anecdotally, of a case involving such a fall where there was this constellation of injuries including the extensive retinal hemorrhages and the retinoschisis. She was aware of an article from the Journal of Forensic Sciences that described a 14 month old toddler riding on a train ride, falling off, and striking his head on the ground, resulting in an occipital skull fracture, bilateral retinal hemorrhages, and bilateral retinoschisis. She noted that that was a fall from a piece of moving equipment.
[125] Dr. Kepron said that because C.L. had a skull fracture, there had to have been blunt force impact injury to the head. Shaking in addition was not necessary. It was a possibility, but she could not say for sure, because there was evidence of blunt force and everything she and the other physicians saw, including in the eyes, could be explained by impact to the head.
[126] Dr. Kepron acknowledged that retinal hemorrhages and retinoschisis is a controversial area for pathologists. At one time, retinal hemorrhaging was attributed to shaken baby syndrome, but pathologists now know that is not true. There is uncertainty as to whether the same evolution in thinking will occur with retinoschisis, and whether retinoschisis can result from an accidental mechanism like a short fall. She is not aware of any study that quantifies the minimum amount of force needed to cause retinal hemorrhages or retinoschisis.
[127] In cross-examination Dr. Kepron agreed that she could not conclude from her findings that C.L. was shaken, or that she was struck on the head with an object. She agreed there is no medical literature that allows her to reject the possibility that all of C.L.’s injuries were caused by a fall from a height of 4.5 to 4.8 feet onto a hard surface.
[128] In her opinion, symptoms likely would have been apparent in C.L. fairly soon after, if not immediately after the injuries were sustained. Children who sustain head injuries appear unwell very quickly, in a spectrum from crying to immediate unconsciousness. She could not say exactly how C.L. would have presented, but she would expect at the very least crying and inconsolability, and then the spectrum of vomiting which is common with head injuries, through to obtunded (meaning not seeming quite all there), to unconsciousness. With severe head injuries, children can suffer cardiac arrest. The heart stops beating. They stop breathing. C.L.’s breath rate was low when emergency personnel attended.
[129] Dr. Michelle Shouldice is a pediatrician and a member of the Suspected Child Abuse and Neglect (SCAN) Unit at the Hospital for Sick Children in Toronto. From 2003 to 2014 she was the Director of the Unit. Currently she is the Division Head for Pediatric Medicine, of which the SCAN program is one section. Part of her role is to see children who may or may not have sustained injuries and to help work through whether there was an injury and if so, how it may have happened. She is familiar with the medical literature about head injuries in young children.
[130] Dr. Shouldice testified as an expert in the field of pediatrics and the assessment of suspected injuries in children.
[131] She examined C.L. in the Intensive Care Unit of the Hospital for Sick Children on August 29, 2011. C.L. was suspected of having a head injury with no event that would explain it.
[132] In forming an opinion about C.L.’s injuries, she relied on her own examination and also the findings of others, in particular Dr. Kepron, and the ophthalmologist who saw C.L. at the Hospital for Sick Children.
[133] C.L. had a bruise on her forehead, which is a very common area for an accidental injury in a child. She also had a bruise on her left cheek, which possibly occurred during resuscitation efforts.
[134] Dr. Shouldice said that the five by seven centimetre scalp hemorrhage (or hematoma) in the midline of the back of the head indicated that there had been some sort of significant impact to the back of the head. Either C.L.’s head hit something hard, or something hit her head hard. The more significant the force, usually the more bleeding there is and so the larger the hematoma. The fact the pathologist found signs of older and newer blood within that area of hematoma means that there was bleeding into that area from a more recent injury.
[135] It is very unlikely that, if the child fell onto her bottom and then tipped over onto the back of her head, this type of scalp hematoma would result. A backward fall onto the back of the head from a standing position could possibly cause a scalp hematoma, but not likely one of this size. A fall from a caregiver’s arms that resulted in an impact of the head against a surface could result in a scalp hematoma of this size.
[136] The fracture of the occipital bone of the skull was seen on the CT scan done at Markham-Stouffville Hospital, and the CT scan done at the Hospital for Sick Children. Also seen on CT scan was a thin film of blood around both hemispheres of the brain and under the skull. These subdural hemorrhages reflected a rupture of the bridging veins. The cause was head injury, either from impact or the kind of forces involved in shaking. In cross-examination, Dr. Shouldice said that there is some controversy about whether shaking can cause a subdural hematoma.
[137] Dr. Shouldice said that the most common site of a skull fracture in a child who is dropped is the parietal bones, which are on the sides of the head. This is because they are the thinnest area of bone in the skull. Additionally, children often have the head turned when they fall and do not often fall straight back on the back of the head.
[138] The occipital bone is the thickest area of bone in the skull. It requires more force to fracture. Occipital bone fractures are uncommon, but do occur in children when they have a significant impact to the back of the head. Whether an occipital bone fracture occurs in a fall depends on factors including the height of the fall, the surface the child falls onto, the age of the child, and the location of the impact.
[139] Studies done of dropped skulls showed that in some cases, the site of the skull fracture may not be exactly the point of impact of the skull. They could be quite offset. However, here there was a scalp hemorrhage overlying the fracture, and it was quite close to the seven by five centimetre scalp hemorrhage. These things told Dr. Shouldice that C.L. had an impact to the back of the head in that area. Looking only at the skull fracture and the overlying hematoma, her opinion was that it was most likely they occurred in the same application of force. But she could not say that definitely, and it is possible there was more than one impact.
[140] Dr. Shouldice said that if a child was dropped onto the floor from a caregiver’s arms, she would expect to see evidence of only one impact to the skull.
[141] The ophthalmologist who examined C.L. in the Intensive Care Unit described extensive multilayered retinal hemorrhages in each eye that were very numerous and extended out to the periphery of the eye. Dr. Shouldice said that extent of retinal hemorrhaging rarely occurs with household type falls. It occurs with more significant head trauma, meaning more significant impact to the head. It also is suggested that those types of hemorrhages are more likely to be seen with a shearing force to the eyeball, and possibly to occur from inertial shearing injury to the eyeball such as may happen when an infant is shaken. She cannot differentiate between retinal hemorrhages caused by shaking and those caused by blunt force trauma, based just on those hemorrhages.
[142] Associated with the retinal hemorrhages was retinoschisis in each eye, referring to a shearing injury to the retina such that the layers within it are separated from one another and form a cavity that fills with blood. It is thought to occur due to shearing forces applied to the back of the eye. Shearing results from cells being pulled in opposite directions.
[143] Retinoschisis is an uncommon finding in children. It has been described as resulting from head impact from a significant height fall, in a case where the fall was from an eighth floor window.
[144] Retinoschisis has also been described in the medical literature as being caused by a crushing head injury. A crushing head injury refers to a squeezing of the head from two sides. It tends to result in multiple skull fractures in a child. One such case involved an old style television set falling on the child’s head.
[145] Dr. Shouldice said that shaking a baby may create the forces that are thought to result in retinoschisis.
[146] She has seen probably more than 100 cases of falls from caregiver arms, and also reviewed the medical literature. A fall from a caregiver’s arms is typically four to five feet, which the literature may describe as a short fall or an intermediate fall. More recent literature quantifies a child cradled in the arms and a child upright against the shoulder as an intermediate height.
[147] Retinal hemorrhages are rarely seen in short and intermediate falls. Those that are, are described as fewer, not extending to the periphery of the retina, and not multilayered. Retinal hemorrhages are thought to be more closely associated with non-accidental or abusive mechanisms of injury.
[148] She has seen a child dropped by a caregiver from cradled arms or shoulder height where a skull fracture was identified, but not a skull fracture and retinal hemorrhages, or a skull fracture and retinoschisis.
[149] She said that based on the medical literature and information available to date, retinoschisis is highly associated with inflicted injury, is thought to be associated with shaking, and it appears very unlikely that it would be associated with short or intermediate height falls. But, the minimum amount of force, and minimum height of fall that is required to cause retinoschisis is not known. In cross-examination, Dr. Shouldice said that it is not known if retinoschisis could be caused by a fall from five feet.
[150] Respiratory arrest can be produced from impact to the head. The paramedics noted C.L.’s rate of breathing was six breaths per minute, which is very low and would be considered respiratory arrest, meaning there was not sufficient oxygen flow to her organs. Respiratory arrest can cause damage to the brain cells and lead to swelling of the brain. C.L.’s brain swelled to the point it was forced down through the hole at the base of the skull. Dr. Shouldice said that retinal hemorrhages can be caused by swelling of the brain, but the extent, number and type of retinal hemorrhages in C.L.’s case have never been described to be associated with brain swelling without any injury to the brain. Retinoschisis has not been described to be associated just with brain swelling without any injury to the brain.
[151] Dr. Shouldice concluded that C.L. sustained two forceful impacts to the back of her head. One caused the scalp hematoma in the midline of the back of the head that Dr. Kepron dated prior to August 29. The second injury event resulted in the bleeding in the scalp to the right of the midline at the back of the head, and the occipital skull fracture. Those most likely occurred in the same impact injury event. The subdural hemorrhages and the brain injury could have resulted from that same impact injury event. If that injury event was of sufficient force to cause really significant impact to the back of the head, it is possible the retinal hemorrhages and the retinoschisis all occurred in the same injury event. In cross-examination, she said that she did not know if C.L. was struck on the head, or if her head hit something.
[152] Dr. Shouldice said that it also is possible there were two mechanisms of injury. It is possible that the subdural hemorrhages, the brain injury, the retinal hemorrhages and the retinoschisis resulted from shaking that occurred around the same time as the impact injury. In cross-examination, she testified that she could not say whether C.L. was, or was not shaken. The majority of children who are shaken are less than one year old, and the highest rate of shaken babies is at six to eight weeks, when they tend to cry the most. She also said that she is aware of biomechanical studies that indicate impact to the head can cause significantly more impact to the brain than through shaking.
[153] Dr. Shouldice said, in cross-examination, that she could not exclude the possibility that C.L. was dropped approximately five feet onto a ceramic tile floor, and that that caused an occipital bone fracture to the back of the head, subdural hematomas, and intracranial injury. Severe bilateral retinal hemorrhages are rarely reported from accidental falls, and to date retinoschisis has not been reported in the medical literature as resulting from a fall from five feet onto the back of the head. But, she could not exclude the possibility. She agreed that medical knowledge can evolve, as it has about shaken babies, and there may be things about which medicine does not yet know. She was asked about the article from the Journal of Forensic Sciences that described a 14 month old toddler riding on a train ride, falling off, and striking his head on the ground, resulting in an occipital skull fracture, bilateral retinal hemorrhages, and bilateral retinoschisis. She said that she was not aware of the article and did not know what to make of it.
[154] Dr. Shouldice said that given the injuries that C.L. sustained, it was most likely that she would have demonstrated significant symptoms immediately after the injury event, including reduced consciousness or unconsciousness. Given C.L.’s fairly global injury to the brain, Dr. Shouldice would expect vomiting to occur immediately.
The Position of the Crown
[155] On behalf of the Crown, Mr. Pearson submits that the medical evidence establishes that C.L.’s death was caused by blunt force trauma to the head, or blunt force trauma to the head and violent shaking. The evidence, including evidence of the timeline, proves beyond a reasonable doubt that on August 29, at a point before Mr. C.W. went upstairs and made video recordings of his daughter, he inflicted the injuries to C.L.. He was trying to study that afternoon for a real estate exam. He also was under financial stress. C.L. was crying in the playpen just outside his office, which interfered with his ability to study. Mr. C.W. lashed out at C.L. in anger, some time between 3:30 p.m. and 3:50 p.m. After inflicting injuries that he knew were very serious, he did not call 911 and waited at least 30 minutes before asking his wife to do so. He told a series of lies, to his wife, the 911 calltaker, the paramedic who came to the house, his mother, and Detective Constable Boris. He essentially took the position that C.L. had injured herself while in the playpen. Everything that he did after he injured her showed that he held C.L. in contempt.
[156] Mr. Pearson submits that Mr. C.W.’s account of dropping C.L. on the floor does not make sense. Further, the expert evidence was that no case of retinoschisis has been identified as resulting from a fall from a caregiver’s arms. He says that Mr. C.W.’s testimony should not be believed, nor does it give rise to a reasonable doubt.
[157] Mr. Pearson contends the Crown has proven beyond a reasonable doubt that Mr. C.W. is guilty of second degree murder under s. 229 (a)(ii) of the Criminal Code, or alternatively that he is guilty of manslaughter.
The Position of the Defence
[158] On behalf of Mr. C.W., Mr. Ross submits that the Crown relies on speculation that Mr. C.W. became so angry with his niece because of her crying that he killed her. The Crown put no particular assaultive act to Mr. C.W. as the cause of the injuries. The evidence does not support the contention that Mr. C.W. was stressed out that day. No doubt money was tight for the W., but their mortgage was paid and they had access to funds including from an apartment they sold. Mr. C.W.’s exam was not for another five days, and there was no evidence that he was stressed about it. He slept late that day, and took time to make videos of his daughter. There is no evidence that C.L.’s crying bothered him or his wife. It makes no sense that Mr. C.W. would injure C.L., then go upstairs and make videos of his daughter, nor does the timing fit. Mr. C.W. told lies about what happened, but it was because he was scared and concerned about legal consequences.
[159] Mr. Ross submits that the evidence confirms Mr. C.W.’s testimony, including that C.L. was like a daughter to him. Mr. C.W. participated in looking after her. He never complained to anyone about her behaviour. Her parents had no concern about her care in his home. The videos he made that day show that he was in a happy mood, and that C.L. was not crying or screaming in the background as she would have been if she had been injured by that time. The computer searches that he made later that night were about accidental deaths, not inflicted injuries. The medical experts could not reject the possibility that C.L.’s injuries were caused by a fall as described by Mr. C.W..
[160] Mr. Ross submits that Mr. C.W. is not guilty of second degree murder or manslaughter.
Legal Principles
(a) The Burden and Standard of Proof
[161] Like every person accused of a criminal offence, Mr. C.W. comes before the court presumed innocent. The presumption of innocence is only defeated if and when Crown counsel satisfies me of Mr. C.W.’s guilt of the offence, by proving every essential element of that offence beyond a reasonable doubt. The Crown’s burden of proof beyond a reasonable doubt applies to each and every essential element of the offence, but not to individual items of evidence.
[162] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
[163] Proof beyond a reasonable doubt is achieved if, after considering all the evidence, I am sure that Mr. C.W. committed the offence charged or an included offence.
[164] As the majority pointed out in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449, the standard of proof beyond a reasonable doubt is not one of mathematical certainty, but it can be described as falling much closer to absolute certainty than to proof on a balance of probabilities. It is not enough for me to believe that Mr. C.W. is probably, or likely guilty of the offence charged or an included offence. Proof of probable, or likely guilt is not proof of guilt beyond a reasonable doubt.
(b) The Essential Elements of Murder and Manslaughter
[165] The Crown relies on the definition of murder under s. 229 (a)(ii) of the Criminal Code, that Mr. C.W. caused C.L.’s death meaning to cause her bodily harm that he knew was likely to cause her death, and was reckless whether death ensued or not.
[166] In order to find Mr. C.W. guilty of second degree murder, I must be satisfied that the Crown has proven each of the following essential elements beyond a reasonable doubt:
- That Mr. C.W. caused C.L.’s death;
- That he caused her death unlawfully; and,
- That he meant to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not.
[167] If I am satisfied beyond a reasonable doubt of the first two essential elements but not the third, the Crown submits that I must find Mr. C.W. guilty of manslaughter.
(c) The W. (D.) Instruction
[168] Because Mr. C.W. testified, I am obliged to follow the approach set out in R. v. W. (D.) (1991), 1991 SCC 93, 63 C.C.C. (3d) 397. If I believe his evidence that he caused C.L.’s death by accident, I must find him not guilty. Even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. If I do not believe and am not left in a reasonable doubt by his evidence, I may convict him only if the rest of the evidence that I do accept proves his guilt of the offence beyond a reasonable doubt.
Analysis
[169] Mr. C.W. testified that the injuries to C.L. were caused when he accidentally dropped her on the kitchen floor. He denied that he hit or violently shook C.L. on August 29.
[170] Accordingly, there is no contest that Mr. C.W. caused C.L.’s death. His position is that he did not commit either second degree murder or manslaughter, because he caused C.L.’s death by accident, and not by an unlawful act.
[171] I do not entirely believe Mr. C.W.’s testimony that he caused C.L.’s death by accident. As a father of two children, he was not inexperienced in holding a young child. S.Y. testified that he carried his own children in his arms, including when they needed consoling. It is somewhat difficult to envision just how he lost his grip of C.L. while shifting her from one side of his body to the other in order to free up one of his hands. He did not testify that he was distracted in some manner, or that C.L. was writhing in his arms, or that he was impaired by alcohol or drugs.
[172] I also bear in mind that on his account of events, he did not call 911 immediately or tell S.Y. to do so, and that he admittedly lied to virtually everyone who spoke with him after the event about what happened. One, albeit not the only inference that could be drawn, is that he did so because he knew that he inflicted blunt force trauma to C.L.’s head, alone or in combination with violent shaking, and was trying to avoid detection.
[173] I am, however, left with a reasonable doubt about Mr. C.W.’s guilt by his evidence. I say this for the following reasons.
[174] The evidence supports that Mr. C.W. was a caring uncle to C.L.. The L. and the W. were extremely close. Their frequent visits involved their children, who played together. The L. had very good opportunity to see Mr. C.W. interact with his own daughters, and with C.L.. They saw no behaviour on his part that was concerning. There is no evidence that he bore C.L. any ill-will. To the contrary, the L. believed from their observations that Mr. C.W. loved C.L. like he did his own daughters.
[175] Their testimony is reinforced by that of S.Y.. S.Y. described her husband as doing the kinds of things for C.L. that he did for his own daughters, including playing with her.
[176] While I appreciate that there might be reason to approach S.Y.’s evidence with a measure of caution, given that she is Mr. C.W.’s wife, she is also P.Y.’s sister, an aunt to C.L., and a mother herself. S.Y. was called as a Crown witness. She responded to the questions she was asked. She did not display a hostile attitude to either Crown or defence counsel. When it was suggested by Crown counsel that she might wish to refresh her memory, she did so, and appeared to then provide the anticipated answers. She did not resile from previous statements or testimony, nor did she demonstrate the biased attitude that is sometimes seen in witnesses who are spouses of accused persons. The fact that she is Mr. C.W.’s wife does not cause me to reject her testimony as lacking credibility.
[177] There is no evidence that Mr. C.W. did not want C.L. in his home while the L. were at work. There is no evidence that Mr. C.W. objected to S.Y. babysitting C.L.. I find that the only objection to the babysitting arrangement came from Mr. C.W.’s mother. There is no evidence that Mr. C.W. shared, or was influenced by her objection. I accept the testimony of S.Y. that she discussed the babysitting proposal with her husband, and that he was agreeable to it.
[178] There is no evidence that the childcare arrangement was contingent on payment of a fee. I find that it was P.Y. who offered a token payment of $25 per day, not the W. who requested it. There is no evidence that the W. ever suggested that the payment should be increased.
[179] While S.Y. was primarily responsible for C.L.’s care, the uncontradicted evidence is that Mr. C.W. assisted her. I accept the evidence that he sometimes fed C.L., played with her, held and walked with her when she needed comforting, and tried to teach her to do things like crawl.
[180] The evidence as a whole does not support the suggestion that C.L. was an irritable child who cried a lot while she was at the W.’ home, or that Mr. C.W. could not cope with her. Mr. C.W. testified that C.L. cried for the first few weeks, but that she cried much less once she got used to the environment. His testimony was supported by the other evidence. S.Y. testified that C.L. cried a lot for the first month, but after that cried at predictable times such as when she was put down to sleep or woke up. She said that she and her husband considered the crying to be normal. The L. testified that after the first two weeks, the W. said C.L. was fine. They did not complain that she was crying too much.
[181] There is no evidence that the W. suggested to the L. that C.L. was no longer welcome in their home, or that new permanent child care arrangements would need to be made.
[182] There is no evidence that C.L. was not well-cared for in the W.’ home, prior to August 29. The L. testified that they had no concerns about the care C.L. received in the W.’ home. They did not notice injuries, other than a small mark on her face at some point before August 29. The evidence about what the mark was and when or how it came about is very unclear, and in any event cannot be brought home to Mr. C.W.. Similarly, the pre-existing bruise on the back of C.L.’s head that was identified on autopsy was not linked to Mr. C.W., or even to something that happened in the W.’ home.
[183] The Crown’s contention that Mr. C.W. was under stress on August 29 because of financial pressure and an impending real estate exam is speculative. I find that both Mr. C.W. and S.Y. minimized their financial difficulties as of August 2011. That said, there is no evidence that they had unpaid bills as of August 29. The evidence is that their mortgage was up to date, and that Mr. C.W. could have taken other work, albeit unskilled work, that would have allowed him to continue with his real estate courses. It was after C.L.’s death, and in the ensuing uncertainty including the focusing of police attention on Mr. C.W., that the couple returned a leased car they no longer needed and that S.Y. received $30,000 from her brother. The purpose for which S.Y. received the money is unclear. Crown counsel did not ask her about it when she testified. I accept that Mr. C.W. did not know about the money until some time later.
[184] S.Y. described her husband’s behaviour on August 29 as normal. I accept her evidence. The exam was some five days away, on September 3. Mr. C.W. had done well on the preceding exams that he wrote in May and late June of 2011. There is no evidence that if Mr. C.W. needed to study that day, he had no choice but to use the main floor library. Photographs of the house illustrate that it was large and spacious. There was a finished basement and a finished upper loft to which he could have gone with his laptop computer if it was too noisy on the main floor.
[185] S.Y. testified that when she called him upstairs and then asked him to go get his camera, Mr. C.W. did so without protest. Her testimony is supported by the videos that he then took of his younger daughter between 4:07 and 4:14 p.m. They recorded the sounds of two happy parents admiring their baby. There is nothing on the audio that indicates irritation, anger or frustration on Mr. C.W.’s part.
[186] The evidence does not support that Mr. C.W. inflicted the head injuries to C.L. between 3:30 and 3:50 p.m., as the Crown contends. The Crown relies on the absence of browsing activity on the laptop computer during that period. No evidence was called to explain the browsing history table that was entered as an exhibit. It would appear that the first browsing activity that day was at 2:42 p.m., which is consistent with Mr. C.W.’s testimony about when he started to study that day. Crown counsel suggested to Mr. C.W. that there was no browsing activity from 3:09 to 3:50 p.m. I take that to mean that no-one did anything to change what was accessed on the internet in that period. Mr. C.W. agreed that between 3:30 and 3:50 p.m. he left the library, went to C.L., briefly took her out of the playpen, and put her back in.
[187] However, it does not make sense, given other evidence, that Mr. C.W. injured C.L. during that time period. Dr. Kepron and Dr. Shouldice testified that they would expect to see symptoms of the injuries fairly soon, if not immediately after the injury event. Dr. Kepron identified crying and inconsolability at the very least. Both experts mentioned vomiting. S.Y. testified that she did not hear C.L. crying or screaming before the videos were taken. I accept that if she had heard crying, she would have gone to C.L.. More significantly, no crying can be heard on the audio to the video recordings. Any suggestion that C.L. was crying loudly while the W. were upstairs is contradicted by the video recordings, and by S.Y.’s evidence that she did not hear C.L. crying loudly from upstairs. It was only after her husband went downstairs that she heard some crying. Further, the paramedic saw no vomit in the playpen, as might be expected if Mr. C.W. injured C.L. before leaving her in the playpen to go upstairs to video his daughter.
[188] Most significantly, as already noted, Mr. C.W. sounds happy on the video recordings. That mood is inconsistent with just having lost his temper and inflicted serious injury to his niece.
[189] Mr. C.W.’s comments to Detective Constable Boris about C.L. crying are contradicted by the other evidence. I find that Mr. C.W. made those comments to create the impression that there was something wrong with C.L. that caused her to suddenly become unresponsive.
[190] Another gap in browser activity on the laptop computer is reflected in the table, from 4:05 p.m. to 5:03 p.m. This is consistent with Mr. C.W.’s account of being upstairs with his daughter, then coming downstairs, picking up C.L., and ultimately taking her into the kitchen as he described.
[191] The evidence is that P.Y. routinely picked up C.L. around the same time each day. It makes no sense that, knowing that P.Y. would soon arrive at the house, Mr. C.W. lashed out at C.L. and inflicted serious injury to her when he came downstairs after 4:00 p.m.
[192] Neither expert could exclude the possibility that C.L.’s injuries were caused by a fall onto a hard surface from a height of about five feet. Dr. Shouldice concluded that there were two possibilities for C.L.’s injuries sustained on August 29. One possibility was a very significant blunt force impact to the back of the head, meaning that either C.L. was struck on the back of the head, or her head hit something. A second possibility was that C.L. was shaken in addition. Dr. Shouldice conceded that the majority of children who are shaken are less than one year old. She said that severe bilateral retinal hemorrhages are rarely reported from accidental falls from approximately five feet, and that retinoschisis has not been reported as resulting from such a fall in the medical literature of which she is aware. However, she could not exclude the possibility that C.L. was dropped from approximately five feet onto a ceramic tile floor (a floor that, on the evidence overlay cement). Dr. Kepron testified that there was blunt force injury to the head, meaning something struck the head or the head hit a hard, immoveable object, and that she could not exclude the possibility there was shaking in addition. In her opinion, being dropped from a caregiver’s arms onto a hard surface from approximately five feet was unlikely to have caused C.L.’s injuries, and she was not aware of such a case. But, she conceded that there was no medical literature that allowed her to reject that possibility. She was very clear that the mechanism of retinal hemorrhages and retinoschisis in children is an extremely controversial area. Further, both experts pointed to the evolution in the thinking about shaken baby syndrome, and the fact that medical knowledge continues to evolve, as a reason why they could not reject the possibility that C.L.’s injuries were all caused by a drop from the caregiver’s arms.
[193] I acknowledge that Mr. C.W.’s testimony lacked clarity in some respects, but I take into account that almost six years have passed since C.L. was fatally injured. Some erosion of memory is natural given the passage of time.
[194] I have considered a number of pieces of evidence referenced by Crown counsel as indicative of guilt. Mr. C.W. acknowledged that he knew C.L. was very seriously injured on August 29, yet he failed to immediately call 911 himself or call to his wife to do so. He failed to tell his wife what happened, even though she was primarily responsible for C.L.’s care, he failed to tell anyone who needed to know what happened in order to try to help C.L., including the 911 calltaker, the paramedic, and Detective Constable Boris, and he failed to tell C.L.’s parents, who so obviously deserved to know what happened to their daughter. Indeed, he not only failed to tell anyone what happened, he lied to anyone who asked him about it by saying that he did not know.
[195] Awareness of guilt of a crime is not the only explanation for telling lies. Even a legally innocent person can lie out of fear of consequences, especially if he or she feels responsible for accidentally causing another person serious injury or death. Mr. C.W. explained that he did not know how to face the L. or his wife with his explanation of what happened, that he continued to hope that C.L. would be all right, and that he was concerned about the legal consequences for himself and his family because C.L. had been injured in his house. While I find Mr. C.W.’s failure to immediately call 911 and his continued assertions that he did not know what happened to be morally reprehensible, I accept that his concern at the time was his potential legal responsibility in the broadest sense. I do not draw the inference that his conduct was the product of awareness of guilt of having inflicted injury to C.L. by means of a criminal act.
[196] I reach the same conclusion about the searches Mr. C.W. carried out on the computer tablet.
[197] Mr. C.W.’s comment to the L. that he was taking responsibility for whatever happened to C.L. was ambiguous. The remark was not clarified. It is as consistent with acceptance of moral responsibility, as it is with anything more. Mr. C.W.’s behaviour after August 30 is consistent with a concern that the police believed he had inflicted harm on C.L.. That is the message the police conveyed to him on August 30.
Conclusion
[198] If I were deciding this case on a balance of probabilities, I might well find it more likely than not that Mr. C.W. struck C.L.’s head in some manner, and so committed culpable homicide. But that is not the standard of proof I am required to apply in this, as in all other criminal cases.
[199] I have a reasonable doubt that Mr. C.W. caused C.L.’s death unlawfully. I find him not guilty.
Fuerst RSJ.
Released: June 13, 2017