Court File and Parties

COURT FILE NO.: 4067/16 DATE: 2017 06 16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Michael James ALLEN

Counsel: Lindsay Bandini, for the Crown Janani Shanmuganathan, for the Accused

HEARD: January 25, 26, 27, April 26, 28, 2017

Reasons for Judgment

Woollcombe J.

A. Introduction

[1] Michael Allen is charged that on or about the 22nd day of January, 2015, in Oakville, he did, in committing an assault on Hayden Ouellette-Meissner, cause bodily harm to him, contrary to s. 267(b) of the Criminal Code. He pleaded not guilty and his trial proceeded before me.

[2] The defence admitted that Hayden suffered injuries and that these amounted to bodily harm. The only issue to be determined by me is whether the Crown has proven beyond a reasonable doubt that Mr. Allen caused the injuries.

[3] For the reasons that follow, I find Mr. Allen not guilty.

B. Background and Evidence about the events of January 2015

i) Background relating to Hayden Ouellette-Meissner

[4] Hayden Ouellette-Meissner was born on July 11, 2014. His mother is Renee Ouellette. His father is Shawn-Paul Edward Meissner. His parents separated during Ms. Ouellette’s pregnancy.

[5] In October 2014, Ms. Ouellette began a relationship with the accused, Michael Allen. At the time, she and Hayden were living with her parents. Around the end of November, she and Hayden moved in with Mr. Allen and his family to their home in Oakville.

[6] Ms. Ouellette said that on a day-to-day basis in the Allen home, she and Mr. Allen would spend time with Hayden around the house. Mr. Allen worked a night job in December 2014, but was not working in January 2015.

[7] Ms. Ouellette described Mr. Allen as being “amazing” at first with Hayden and said he helped with changing diapers, feeding and bathing him. Under cross-examination, she agreed that she had described Mr. Allen as “perfect” with Hayden at the beginning. He would let her sleep in the morning and then would help with Hayden. Mr. Allen played video games regularly and would have Hayden sitting on his lap with him while he played.

[8] Beginning in the period just before Christmas, Ms. Ouellette said that Hayden was teething and that he became irritated and whiney. She described him as “very clingy” and said that he wanted to be held and cuddled rather than going in his exer-saucer or jolly jumper. She said that she would put Orajel on his gums when she could tell that they were bothering him.

[9] Shortly before the January 22, 2015 incident, Ms. Ouellette said that Hayden was still teething and was whiney. She testified that Mr. Allen would become frustrated and irritated by Hayden. She said that at one point, Mr. Allen said he “just wanted to throw him out a window”. Ms. Ouellette acknowledged that she had not told the police that sometimes Mr. Allen became irritable around Hayden.

ii) The Events of January 22, 2015

a) The Evidence of Ms. Ouellette

[10] By January 22, 2015, Hayden was six months old. He was able to sit by himself. He had stopped rolling over, though he had done so twice when he was two months old. He was not yet crawling. He could stand up with support.

[11] Hayden had done what Ms. Ouellette called the “superman thing” once. This involved him having put his foot under his bottom and plopping onto his stomach with his arms extended. He had done this on the living room couch. Ms. Ouellette described his arms as always grabbing things like necklaces and glasses off her face. She said that he would pull her hair with his whole hand.

[12] Prior to January 22, 2015, Ms. Ouellette had no concerns about Mr. Allen supervising Hayden.

[13] Ms. Ouellette testified that on the morning of January 22, 2015, she, Mr. Allen and Hayden woke up around 6:30 or 7:00 am. They fed Hayden and went to the couch in the living room. She described Hayden as a little irritated and whiney because he was teething. She and Mr. Allen rubbed Orajel medication on his gums to numb them.

[14] Ms. Ouellette said that Mr. Allen’s parents left for work and that his younger sister went to school.

[15] In the early afternoon, Mr. Allen was playing video games in the bedroom. She and Hayden were watching television in the living room. At one point, she decided to have a shower. She left Hayden in the corner of the “L-shaped” couch in the living room. His head was resting on the pillow behind him and she put a pillow over his lap. He had some toys in front of him. She said that he was watching TV and playing with his toys. Ms. Ouellette testified that she had left Hayden in this position many times before. Exhibits 1 and 2 depict the couch as it was situated in the living room.

[16] Ms. Ouellette agreed that when she left Hayden, there were two cats and a dog in the house. The dog sometimes sat on the couch. Ms. Ouellette describe the dog as having been good with Hayden. The dog liked to be beside Hayden and would lick him.

[17] When she left Hayden, Ms. Ouellette said that he was whining a bit. She went to speak to Mr. Allen, told him Hayden was a bit upset, and asked him to keep an eye on Hayden while she had a quick shower. She said that Mr. Allen was in his room on his computer. He responded to her, “If I hear a thud I’ll go get him”. She thought he was joking. Ms. Ouellette acknowledged that she had not told the police about Mr. Allen ever having said this. She denied the suggestion that she was only saying it at trial because of the involvement of the Children’s Aid Society (“CAS”).

[18] After speaking with Mr. Allen, Ms. Ouellette checked Hayden quickly, saw he was fine, and then went to the bathroom for her shower. Hayden was left alone in the living room.

[19] In the bathroom, Ms. Ouellette said that she took off her clothes, got into the shower, applied shampoo and that Mr. Allen then came knocking at the door. He told her, “Hayden fell off the couch”. At first she thought he was joking, but then she could see by his face that he was scared.

[20] She got out of the shower and saw that Mr. Allen was holding Hayden in his arms. She described Hayden as crying and having his arms limp to the side. She said that she asked Mr. Allen what had happened and that he told her he did not know and that “Hayden must’ve fell off the couch”. Mr. Allen told her that he recalled picking Hayden up by his sides. In the bathroom, Mr. Allen showed her that Hayden’s arms went limp if he lifted them up.

[21] Ms. Ouellette took Hayden to the bedroom and examined him. When she undressed him, she saw that one of his arms was a little bit red and starting to swell between the elbow and shoulder. Later on the other arm swelled too. She described Hayden as being in distress and said that his face was red and he was crying. She thought he was in pain and appeared terrified.

[22] Mr. Allen called 911 and an ambulance attended and took Hayden to the hospital. When they got to the hospital, Ms. Ouellette said that she noticed a little bruise on Hayden’s forehead. Ms. Ouellette learned from the doctors at the hospital that Hayden had two broken arms.

[23] Ms. Ouellette testified that at some point later, while Hayden was in the hospital, she asked Mr. Allen what had happened. He told her that Hayden was like a “scorpion” with his chin on the floor and his legs up resting against the couch. She said that she asked him how his arms were and he said that he did not know.

[24] She said that when she asked him again later, he said “the one arm was like stuck in the couch or something, like twisted”. He told her that he did not remember anything about the second arm.

[25] It was Ms. Ouellette’s evidence that when she spoke with the police, she lied about a few things. She testified that she lied when she told the police that Mr. Allen did not do drugs. It was her evidence that he “always did drugs”. She also said that he would drink. She testified that she said what she said because she did not want to get him into trouble.

[26] Ms. Ouellette said that after Hayden was injured, the CAS became involved with them for the first time. After his release from hospital, Hayden stayed with her parents. She lived with friends initially, and then moved back in with her parents. She cared for Hayden during the day but her parents had care of him overnight as she worked her way back to having full custody of him. Eventually she obtained full custody of Hayden.

[27] Under cross-examination, it was put to Ms. Ouellette that she was only trying to shift blame to Mr. Allen because of the CAS involvement. She denied this.

b) The Evidence of Mr. Allen

[28] Mr. Allen was interviewed by the police on Thursday, January 22, 2015 at 10:45 pm.

[29] He confirmed that Hayden had been teething that day.

[30] Mr. Allen described how he had been playing video games in the bedroom down the hall while Ms. Ouellette was with Hayden on the living room couch. He said that at one point, she told him that she was going to have a shower and asked him to “keep an ear out” or pay attention. After she was in the shower, he finished with his game for a few minutes and then went down the hall to the living room.

[31] Mr. Allen said that as he was going down the hall, he heard a thump and a little bit of a scream. He was clear that he did not see a fall. He saw Hayden “all cock-eyed in the corner” and picked him up. He sat with him on the couch to make sure he was ok and then took him to see his mother because he was screaming.

[32] Mr. Allen described to the police in his statement the manner in which he observed Hayden:

M. Allen: I seen him case first on the floor with one arm stuck in the couch. (Demonstrates). I don’t remember where his right arm was but I’m guessing some – like I don’t know, he fell on it or something, I mean I don’t know… D/Cst/ Groulx: So h – his whole body wasn’t on the floor? M. Allen: Well hi – his (indicates) ah it’d be easier to show you. D/Cst. Groulx: Mm-hmmm. M. Allen: But like let’s say this is my head (indicates) or whatever. He was like this (Demonstrates). His feet were still on the couch (Demonstrates). D/Cst/. Groulx: Okay. And… M. Allen: Partially. D/Cst. Groulx: …so he was and s… M. Allen: His one arm was like caught up here and this arm I’m not sure what it was. I just wanted to pick him up. D/Cst. Groulx: Mm-hmmm. So his arm you say is caught in the couch. How is that caught on the couch? M. Allen: It was like between the cushion or something. It was just not with him on the ground. It was like still up in the air (Demonstrates) D/Cst. Groulx: Okay. And which arm was that? M. Allen: His left. D/Cst Groulx: His left. And where was his right one at? M. Allen: I don’t know. I don’t recall that one.

[33] In the Agreed Statement of Fact, entered into evidence as Exhibit 7, the parties agree that following his police interview, Mr. Allen demonstrated with his own body how he found Hayden in the living room by putting his legs up on the couch and his face on the floor in front of the couch, turned to the right. His left arm was in the crack between the two seat cushions. Mr. Allen said that Hayden’s right arm was in an unknown location.

C. The Medical Evidence

[34] Hayden was taken initially to Oakville-Trafalgar Memorial Hospital. He was then transferred to McMaster Children’s Hospital. Due to complications from unrelated flu issues, he spent two weeks in hospital.

[35] The Crown and defence each called expert opinion evidence.

[36] It is agreed that Hayden had two fractures, one on each arm. The first fracture was a spiral fracture of the right humerus, two-thirds of the way from his shoulder to his elbow, displaced medially by three millimetres and dorsally by four millimetres. The second was an oblique fracture in the middle of the left humerus, displaced medially by five centimetres.

[37] Other than the fractures, Hayden was a healthy, well-nourished baby who was developing normally. There was nothing in any of the tests that were conducted to suggest that he had any bone disease or genetic abnormality. The MRI that was conducted of his head and spine was normal. The x-rays that were conducted on both January 23 and February 6 revealed no fractures other than the two humeral fractures.

i) Dr. Kathleen Nolan

[38] Dr. Kathleen Nolan was called by the Crown. With the consent of the defence, she provided opinion evidence as an expert in pediatrics, and more specifically in the evaluation and interpretation of childhood injuries. Dr. Nolan evaluated Hayden at the McMaster Children’s Hospital as part of the Child Advocacy and Assessment Program (“CAAP”).

[39] Dr. Nolan completed her residency in pediatrics and did two specific rotations in the area of child abuse. As an attending physician at CAAP, where she has worked since 2014, she assesses children where there is suspicion of child abuse. Dr. Nolan agreed that CAAP’s role is to answer the question of whether there has been abuse or not.

[40] Dr. Nolan was cross-examined about her experience with fractures. She thought she had seen about a hundred fractures in children in total. She had seen about five humeral fractures in children under 18 months. She acknowledged that broken bones was not her specialty and that she was not a specialist in fracture biomechanics.

[41] Dr. Nolan agreed that there was no history of abuse and that Hayden had no healing fractures. There were no indicators of previous abuse, no evidence of any prior emergency visits, no prior injuries, no prior CAS involvement and nothing whatsoever from before that was suspicious for abuse. Other than the two fractures, Hayden appeared to her to be a normal six month old healthy baby.

[42] Dr. Nolan’s report was filed as Exhibit 9. In it, she concluded that Hayden’s bilateral humeral fractures are “highly suspicious” for inflicted injury and that the fractures are not consistent with the accidental mechanism of injury proposed. The opinions in her report were peer reviewed.

[43] Dr. Nolan’s report included a reference to Hayden having been seen by the orthopaedic surgery team under Dr. Paul Missiuna. She reported a letter from Dr. Missiuna stated, “it should be understood that the fracture pattern seen in a 6 month-old is consistent with a diagnosis of non-accidental injury”. She testified that Dr. Missiuna wrote this on his own and was not asked by her to provide an opinion.

[44] In her detailed report, Dr. Nolan stated that in her view, the accidental mechanism proposed by Mr. Allen that Hayden fell off the couch and was found with his head on the floor and his left arm caught in the couch did not adequately explain how the bilateral humeral fractures. She found it exceedingly unlikely that a fall from the couch with the arm stuck in the cushion would generate enough force to cause Hayden’s left arm fracture. She observed that the accidental mechanism proposed did not explain the twisting force that must have been caused to his right arm to cause the spiral fracture.

[45] Dr. Nolan testified about the fractures.

[46] She said that a spiral fracture generally means that there has been some kind of twisting force. An oblique fracture results from some combination of bending and twisting.

[47] Dr. Nolan said that Hayden’s left oblique fracture was in the mid-shaft. She said that the literature suggests that mid-shaft fractures are rare. The literature also suggests that a displaced fracture results from more force than a non-displaced fracture. When asked about the amount of force that would have been required to cause the left oblique facture, Dr. Nolan explained that it is impossible to answer with certainty. She said that the only information she received about this fracture was that Hayden’s arm had been stuck between the couch cushions.

[48] The spiral fracture in the right arm was closer to the elbow but still in the shaft area. Dr. Nolan was given no information as to how this fracture occurred.

[49] It was Dr. Nolan’s opinion that infants with normal bones, as Hayden had, do not fracture bones with normal activity because they cannot generate sufficient force to do so. Dr. Nolan also testified that injuries as a result of short falls (less than thirty-six inches) are uncommon. When children or babies do fall, they tend to fall on their heads, making skull fractures the most common fracture. In reaching this conclusion, Dr. Nolan relied on a peer reviewed article entitled “Characteristics of Falls and Risk of Injury in Children Younger than 2 Years” (filed as Exhibit 12) which she said supported her view that short falls rarely cause any injury.

[50] Dr. Nolan was cross-examined on this article and about short falls. She said that the results of the study discussed in the article support the opinion that short falls rarely cause injury. Dr. Nolan agreed that there were limitations in the study discussed because the study was self-administered by parents and that some parents declined to take the study. However, Dr. Nolan observed that in the study, no parent reported a fracture from the short fall. Ultimately, while acknowledging that there were methodological shortcomings in the paper, Dr. Nolan said that it was one of many papers that represents the literature and that there are also other studies.

[51] Dr. Nolan was also cross-examined on her opinion that infants, due to their mass and limited mobility, normally do not generate sufficient force to break their own bones. She explained that the literature she relied upon suggests that when children fall off couches, they generally do not break their own bones. She agreed that she did not know exactly what Hayden was doing before he fell off the couch or how he fell off, but said that she had difficulty picturing how he could catch both arms in the couch. Further, she could not think of a plausible explanation for how Hayden could have fallen off the couch and suffered the fractures that he had.

[52] Dr. Nolan testified that in reaching her opinion, she also considered the literature about fractures in pre-ambulatory children. She said that before children learn to walk, it is “very, very rare” for them to have fractures. She said that the literature suggests that of all of the fractures that are felt to be as a result of abuse, eighty percent are in children under one year. She referred to an article entitled “Patterns of skeletal fractures in child abuse: systemic review” that conducted a review of available studies, and which she said supported her opinion. It was filed as Exhibit 13. The article asserts that six studies suggested that between 25 and 56 percent of fractures in children under one year of age arose from child abuse. Further, she said that the article suggested that fractures of the shaft are more concerning and fractures closer to the elbow are more likely to be accidental. Finally, Dr. Nolan suggested that with children under 15 months, there is a much higher likelihood that the facture was inflicted than accidental.

[53] Dr. Nolan was cross-examined on this article, which she agreed was a review of a number of studies or meta-analysis. She agreed that the weakness of every meta-analysis like this is the weaknesses of the studies relied upon.

[54] In addition to the literature relating to fractures in pre-ambulatory children, Dr. Nolan also referred to the literature she had reviewed in relation to fractures in the humeral bone in the pediatric population. She said that one of the articles she reviewed, entitled ‘Humerus Fractures in the Pediatric Population’ which was filed as Exhibit 14, suggests that mid shaft humeral fractures, or those closer to the shoulder, are more likely to be as a result of abuse. The authors also found that abuse was more common for children under 18 months. Finally they found that poly-trauma was more common in the abused group.

[55] Dr. Nolan was cross-examined on this article, written by orthopaedic surgeons. She said it was one of many articles that assisted in informing her opinion. She agreed with the conclusion reached by the authors of the paper that “the vast majority of fractures in children remain as the result of accidental injury”. However, Dr. Nolan relied upon the other conclusions of the authors that children who were victims of abuse tend to be younger and that “humeral shaft fractures were almost exclusively the result of non-accidental trauma”. She also drew on the authors’ conclusion that those with poly-trauma were more likely to have been the victim of abuse.

[56] Dr. Nolan was also cross-examined about the data used by the authors in this article. She acknowledged that one of the short-comings of all child abuse literature is that there are rarely confessions of abuse, and so it is often the case that the authors do not know for certain what happened, and that the findings of abuse are based on the opinions of experts as to whether there was abuse. She agreed that there could be errors in the identifying both which children were abused and which children suffered accidental injuries.

[57] In summary, Dr. Nolan said that the younger a child, the more concerning a humeral fracture is. Hayden was only six months. She said that spiral and oblique fractures of the shaft are more concerning. Further, the fact that he had multiple fractures is concerning. She cited the statistic that 74 per cent of children who were found to have suffered abuse had two or more fractures whereas only 16 per cent of the non-abused group had two or more fractures.

[58] Dr. Nolan’s opinion was that given Hayden’s age, the location of his fractures, the bi-lateral nature of his fractures, and what she characterized as a “lack of plausible explanation”, the bilateral humeral fractures were “highly suspicions for inflicted injury”. That was as high a degree of certainty as she would ever use on the spectrum or scale that she utilizes.

[59] Dr. Nolan was asked under cross-examination whether she would ever sit down and consider whether there could have been an accidental mechanism that might have caused the injuries. She explained that she tries not to come up with her own explanation as to how this could have happened. Rather, she listens to the story she is given and then thinks of all the permutations that could have led to this, but she does not think about possibilities.

[60] Dr. Nolan was asked about Dr. Wedge’s qualifications and report.

[61] Dr. Nolan agreed that Dr. Wedge was qualified to opine about fractures and the mechanism of fractures generally, but not necessarily as they relate to abuse. She did not know how up to date he was on the child abuse literature.

[62] She agreed under cross-examination that orthopedic surgeons are specialists in bones. They see and assess fractures and assess the mechanism behind those fractures. She recognized bone biomechanics as a science and relies on it.

[63] She testified about some relatively minor disagreements that she had with how Dr. Wedge had characterized what she had said in her report. For instance, he said that Dr. Nolan had reported Hayden had been “otherwise cared for appropriately”. She said that this is something that she would not say, and that she did not comment upon it in her report.

[64] Dr. Nolan took issue with a number of the assumptions that Dr. Wedge said had been made in her report. For instance, Dr. Wedge said that she had assumed that an infant bone cannot be broken in the mid-shaft without “considerable violent injury”. She said that she did not make this assumption in her report and agreed that it is incorrect. She said it is her view that a substantial amount of force is required.

[65] In terms of the assumption that Dr. Wedge said that she made about the vulnerability of infant bones to fracturing, Dr. Nolan agreed with Dr. Wedge that there is often a lag between bone formation and bone mineralization in infants. However, she vehemently disagreed that infant bones are vulnerable to fracture from “seemingly trivial injury”. She testified that the literature supports her view that children’s bones are in fact softer and more elastic than adult bones, and that they are less rigid and more able to bend. This tends to result in green stick fractures.

[66] Dr. Nolan was cross-examined on this aspect of her view and testified that she did not think there was any evidence to support the statement that trivial injury can lead to fractures in infants. She was referred to an article entitled “Bilateral Humerus and Corner Factures in an 18-Month-Old Infant”, which was filed as Exhibit 16. She disagreed with the statement in the article that “A young child’s skeleton, unlike the adult skeleton has biochemical and physiologic properties that diminish the tissue’s overall mechanical strength making children more susceptible to injury” and said that it is more complicated than that statement sounds. She explained that there are properties of a child’s skeleton that are more susceptible to injury, but that there are other properties that make them less susceptible to injuries like Hayden’s. She thought that more was needed than this one sentence to understand the issue.

[67] Most significantly, Dr. Nolan took issue with Dr. Wedge’s view that Hayden’s injuries were equally consistent with accidental injury. She noted that Dr. Wedge had referred to the possibility of Hayden standing, which she understood that he was unable to do. Certainly, it seemed unlikely that he would have “tripped” as Dr. Wedge suggested.

[68] In addition, she said that she had real difficulty understanding the accidental mechanism proposed by Dr. Wedge. More specifically, first, she had trouble understanding how Hayden could have gone from sitting in the back corner of the couch to having one arm stuck, dislodged, and then having the other arm stuck. She could not picture how that could have happened. Second, she had a difficult time picturing the idea of both arms getting stuck, one after another, without Hayden’s head, which would have been 20 per cent of his weight, getting in the way. It was her view that it was unlikely that Hayden’ left arm was stuck in the cushions, given the softness of the cushions.

[69] Under cross-examination, Dr. Nolan agreed that just because she could not imagine the proposed mechanism did not mean that other people couldn’t imagine it. She also agreed that she did not watch Mr. Allen’s videotaped statement and did not have all of the information that was available about Hayden’s mobility. Asked whether Dr. Wedge’s proposed mechanism is impossible, Dr. Nolan said that she could not see how it could happen.

[70] Dr. Nolan was also concerned about the suggestion of a slow fall, and said that such a fall would be less likely to cause a fracture. If there was any fracture, she thought the most likely type would be a linear skull fracture because Hayden’s head would have hit the floor first.

[71] Having reviewed Dr. Wedge’s final report, in which he appears to have moved from an initial pronouncement of a non-specific or indeterminate injury (on the basis that the fractures were equally compatible with purely accidental injury) to a final conclusion that it was more likely that the injury was accidental, Dr. Nolan said that her opinion was unchanged by Dr. Wedge’s report. She did not think his proposed mechanism was a reasonable explanation for the fractures.

[72] Dr. Nolan was cross-examined about her opinion that this case is highly suspicious for inflicted injury. She agreed that she based her opinion on the fact that infants rarely have fractures, even accidentally. She also based her opinion on the fact that accidental fractures are usually singular and Hayden’s was bilateral, though she agreed that bilateral fractures can be accidental. She also based her opinion on the literature that humeral fractures in children under 18 months are more likely to be inflicted than accidental, though she agreed that infants could suffer accidental humeral fractures. Finally, she did not think that the accidental mechanism proposed was a plausible explanation. She agreed that she might not have been provided with the correct accidental mechanism and that the injuries could have been accidental even without her having the correct mechanism as to how.

ii) Dr. John Wedge

[73] Dr. John Wedge was called by the defence. With the consent of the Crown he was qualified as an expert in pediatric orthopedic surgery including fracture biomechanics. He testified that fractures took up about 50 per cent of his work and that he had seen 300 to 400 fractures in children under the age of one. Of these he thought about 20 percent were humeral fractures.

[74] Dr. Wedge explained under cross-examination that he retired from surgical practice on June 30, 2016 and has retired from being on staff at the Hospital for Sick Children and Bloorview Rehab. He agreed that while he had over 100 publications, only three related to fractures.

[75] Dr. Wedge prepared a report that was entered as Exhibit 19. The critical component of his report is that he disagrees with Dr. Nolan’s statement that “the fractures are not consistent with the mechanism of injury proposed”. It is his view that while the fractures are consistent with non-accidental injury, they are “equally compatible with purely accidental injury”. He posits that Hayden:

…may have either rolled over the pillow or tripped over it with his arms plunging between the cushions of the sectional couch. As his body continued to tumble his right arm was twisted causing the spiral fracture as that arm was extracted from the crevice between the cushions. As he continued to slowly fall a bending force directly on the still entrapped left arm caused the short oblique fracture in that arm prior to his forehead striking the floor. I believe that this proposed mechanism is just as probable as these fractures having resulted from NAI (non-accidental injury)

[76] By the end of his report, however, Dr. Wedge says that all of the circumstances make it “more probable” that the injury was accidental than non-accidental. During his examination-in-chief, he reverted to the view that each had the same probability.

[77] Dr. Wedge testified that fractures of the humerus in a six month old are unusual, particularly if mid-shaft. However, he said that they can occur by various types of falls. He also testified that they can occur as a result of “seemingly trivial injuries”. He explained that children’s bones are soft and flexible and respond favourably to “rapid loading”. Based on his experience treating fractures in children, he said that children break bones more readily than adults. He based this opinion on the “sheer frequency” of broken bones in children from seemingly minor injuries, and on his experience in treating fractures only.

[78] Dr. Wedge agreed under cross-examination that children’s bones are more elastic than adult bones and that a good example of this is seen in the fact that they may suffer green stick fractures.

[79] Dr. Wedge was cross-examined about his view that immature bones respond more favourably to “rapid loading”. He agreed that while slowly applied force may cause a fracture more easily than if at a higher speed, it may also be less likely to cause a fracture.

[80] Dr. Wedge did not agree with the suggestion that infants rarely have fractures, even accidentally. He based his view on the fact that his experience showed that fractures do occur in infants. He agreed that accidental fractures are generally unilateral not bilateral. He said during his examination in-chief that humeral fractures in children under 18 months are more likely to be inflicted than accidental. He agreed under cross-examination that the findings in the article filed as Exhibit 14 support the view that the vast majority of humeral shaft fractures are as a result of inflicted injury.

[81] During his examination-in-chief, Dr. Wedge was asked whether Hayden could have sustained the fractures that he did from falling off the couch after having been seated on it upright in the corner. He said that had Hayden been stimulated or decided that he did not want to sit restrained by the pillow, it is possible that he rolled and that both arms plunged between the two sections of the couch and were entrapped. If he rolled, there could have been a twisting injury to the right arm, which would have caused the spiral facture, at which point that arm was extracted. It could be that Hayden then continued to fall, with his left arm entrapped, which could have created the oblique fracture in that arm as he picked up speed.

[82] Dr. Wedge was asked under cross-examination about this mechanism of injury. He said that he was told of Hayden’s final position and asked whether he could think of an accidental mechanism that could have resulted in the fractures. While his report refers to the possibility of Hayden standing up, he said his opinion is not predicated on him standing and that he could have rolled or crawled. When it was suggested that Hayden could not crawl, Dr. Wedge said that he could have propelled himself or crept along when his arms plunged into the crevice between the cushions.

[83] Dr. Wedge confirmed under cross-examination that he made up a plausible explanation and that he could not give precise details because he did not know where Hayden’s arms had been entrapped. He agreed that he had never seen a child fall off a couch and sustain these injuries.

[84] Dr. Wedge agreed that one of the factors he considers in assessing whether to refer a case to the child abuse specialists is whether the story offered is vague, improbable or inconsistent. He agreed that the mechanism being proposed by Mr. Allen was unusual. Asked if he was aware that Mr. Allen’s explanation had evolved over time and whether he had considered that, Dr. Wedge said that he did not get the idea that Mr. Allen’s story had changed. When Crown counsel put to him the versions of events Mr. Allen had given, Dr. Wedge agreed that this suggested that the story had changed over time and that this gave him concern. Asked the impact of this, Dr. Wedge said that another way to look at the evidence was that the accused had given more details on each occasion. He then said that he was very uncomfortable because he had not been given this information before.

[85] Dr. Wedge testified that he had seen humeral fractures happen accidentally. For example, he had seen them from a child falling off a couch, from a child slipping from their parents’ arms and falling a relatively short distance and from one child running into another. Asked whether these can occur bilaterally, he said that it is rare but can happen, and that he had seen it in both accidental and non-accidental situations. He said that he had seen a bilateral humeral fracture and recalled the mechanism as having been one parent witnessing the other parent fall one or two steps with the child and breaking both bones.

[86] Asked at another point of his evidence whether he recalled a single time where he had seen fractures in the humerus of both arms from an accident, Dr. Wedge said he did. Asked about details, he could not recall them. He believed that the child fell, and not from a large height. He said it could have been 30 or 35 years ago. Asked if he had determined whether it was accidental or inflicted, he said that he would always refer such a case to a specialized abuse team.

[87] Dr. Wedge was asked about the reference in his report to infants breaking bones by falling down only two stairs. Asked how old the children were, he said that he presumed less than two. He did not know whether the infants were ambulatory. Asked what bones were broken, he said humerus, femur and radius. He agreed that in each case it had been a single fracture.

[88] Dr. Wedge said that “whenever we see a situation with bilateral humeral fractures in a six-month old”, one of the first things he does is refer the case to a child abuse assessment team.

[89] Dr. Wedge was asked who, as between Dr. Nolan and he, is better positioned to assess whether the plausible cause of the fractures was accident. He said that as a person who treats fractures and has voluminous experience with them, he is. However, when asked if a paediatric orthopedic surgeon or a pediatrician with special training in identifying cases of abuse was better positioned to assess the plausible causes of the fractures in this case, Dr. Wedge’s answer was less clear and he appeared to acknowledge that a pediatrician would be. Dr. Wedge agreed that because the bilateral nature of Hayden’s fractures, and the fact that they were humeral shaft fractures, he would have referred the case to someone like Dr. Nolan for an assessment of the injury.

[90] Dr. Wedge was questioned about Dr. Nolan’s report. He agreed generally with her view that small infants do not have a large mass and due to their limited mobility they are usually unable to generate sufficient velocity to break their own bones. However, he said that a six month old falling from 18 to 20 inches is like and adult falling from a ten foot ladder as there needs to be scaling. Under cross-examination, he agreed that when properly scaled, Hayden, who fell 17 inches, fell 2/3 of his height. He agreed that this is like an adult falling from 3 ½ feet, and not like a ten foot ladder as he had said during his evidence in-chief.

[91] Dr. Wedge was asked where in Dr. Nolan’s report he found what he had written was her first incorrect assumption, that an infant humerus cannot be broken without “violent injury”. He could not identify where in her report she had said this and said that it just “seemed” like from everything he read that this had been her conclusion.

[92] Asked about whether he thought that the literature supported the idea that short falls do not cause fractures, Dr. Wedge said that the only publication he was aware of that said that was the parent survey article counsel had referred him to (the article filed as Exhibit 12). He read the article but said, “all I can tell you is that I have seen fractures that occur from short falls” in infants of six months at 18 inches of height.

[93] Dr. Wedge confirmed under cross-examination that this article was the only article he was aware of. However, when asked to look at the list of 16 articles referred to at the end of that article, he testified that he had read two of them. He had forgotten about those when he testified previously.

[94] Asked whether he would acknowledge that none of the short falls described in that article resulted in fractures, Dr. Wedge said that Hayden’s case was not just a short fall because it had his arms entrapped in the couch. He agreed that he had come up with the theory that the second arm had been trapped in the couch and that there was no evidence of this in anything he had reviewed.

D. The Legal Principles

[95] As it is in every criminal case, the burden of proof is on the Crown to prove Mr. Allen’s guilt beyond a reasonable doubt. In order to prove that Mr. Allen committed the offence, the Crown must prove that Mr. Allen caused Hayden’s fractures.

[96] Mr. Allen’s version of events is before me, as contained in his statements to Ms. Ouellette and in his statement to the police, which the Crown has tendered as part of its case. Mr. Allen denies that he caused Hayden’s injuries.

[97] In accordance with the principles identified in R. v. W.(D.), [1991] 1 S.C.R. 742, if I believe Mr. Allen’s evidence, I must find him not guilty. If I do not believe Mr. Allen’s evidence, but am left with a reasonable doubt by it, I must find him not guilty. Finally, even if I am not left with a reasonable doubt by the evidence of Mr. Allen, I must find him not guilty unless, on the basis of the evidence that I do accept, I am convinced of his guilt beyond a reasonable doubt.

[98] I remind myself, as well, that when the Crown’s case is a circumstantial one, as it is here, I must find Mr. Allen not guilty unless I am satisfied beyond a reasonable doubt that the “only rational inference” that can be drawn from the circumstantial evidence is that he is guilty: R. v. Griffin, 2009 SCC 28 at para. 33.

E. Analysis

[99] This case is both very troubling and challenging.

[100] Prior to sustaining the fractures, Hayden appears to have been a normal six month old baby. There is no evidence whatsoever to support any prior abuse. To the contrary, the thorough investigation and testing that was done support a conclusion that there had been no prior abuse, or any concerns about Hayden’s well-being before the afternoon of January 22, 2015.

[101] There is also no evidence to suggest that before January 22, 2015, Mr. Allen was anything other than loving and caring in relation to Hayden. He and his family had welcomed Ms. Ouellette and Hayden into their home. He appears to have been a supportive and committed partner to Ms. Ouellette. He assisted her by taking on some of the responsibilities for Hayden’s needs. While Hayden seems to have been presenting the usual challenges of a six month old baby to Ms. Ouellette and Mr. Allen, in that he was teething and somewhat whiney, I find no evidence that Mr. Allen was particularly angry or frustrated with the baby.

[102] I do not accept Ms. Ouellette’s testimony that she had heard Mr. Allen say that he wanted to throw Hayden out the window. I observe that this is something she did not report to the police. I find it very unlikely that had Mr. Allen made such a surprising and concerning statement, she would have recalled it and reported it to the police. Her statement to the police suggests nothing even remotely close to this sort of attitude in Mr. Allen. I find that there is no basis upon which to conclude that Mr. Allen had any animus towards Hayden.

[103] Mr. Allen was, of course, under no obligation to speak with the police. He chose to do so. I have carefully review Mr. Allen’s videotaped statement. The police were very persistent in their questioning of this young man. They vigourously suggested to him that he had done something to Hayden to cause the injuries. Mr. Allen was calm and consistent in his denial of any wrong-doing. He described coming upon Hayden after he had fallen from the couch. There is nothing inherently implausible about the version of events he gives and nothing in it causes me to have obvious concerns about its veracity.

[104] In his statement, Mr. Allen told the police that he had found Hayden on the floor with his arm between the cushions and his feet up on the couch. The Crown suggests that his version of events evolved over time from initially telling Ms. Ouellette that he did not know what had happened, to telling her Hayden was like a “scorpion” with his chin on the floor and his legs up resting against the couch, to later telling her that his arm had been stuck in the couch and twisted, the version that he gave to the police.

[105] I am not troubled by the manner in which Mr. Allen’s versions unfolded. I do not find the initial comment that Mr. Allen did not know what had happened to be inconsistent with what he later said. If Hayden fell, as Mr. Allen described, he did not know exactly what had happened because he was not there. It is not surprising that later on, as they tried to piece together what had happened, he would have told Ms. Ouellette more details about Hayden being head first with his legs up, and then added that his arm was between the cushions. I see little if anything inconsistent in Mr. Allen’s versions of events.

[106] While I appreciate that Mr. Allen provided more details over time, that may appear to dovetail with the information from the hospital about the injury, I observe that Mr. Allen said nothing at all to account for the fracture in Hayden’s right arm. If he was trying to create an accidental story to fit the medical evidence, one might expect that he would say something to account for the right arm fracture.

[107] In essence, this case comes down to a question of whether Dr. Nolan’s evidence persuades me beyond a reasonable doubt that Hayden’s injuries were inflicted by Mr. Allen. I must be persuaded of this despite the evidence of Mr. Allen and despite the evidence of Dr. Wedge.

[108] The Crown does not have a specific working theory as to what happened. She submits that offering such a theory would be speculative. The Crown’s theory, generally, is that Mr. Allen become frustrated or irritated and caused Hayden’s injuries by applying force to his arms in a manner that caused the two fractures.

[109] There are certainly aspects of the evidence that suggest inflicted injury.

[110] There is no doubt that there are some very unusual aspects to Hayden’s injuries. Both experts agree that the injuries could be as a result of abuse.

[111] Indeed, there are many other aspects about which the experts agree. Bilateral fractures are less likely to be accidental. The location of the fractures, being humeral shaft fractures, are also unusual and suggestive of inflicted injury. One of Hayden’s fractures was a result of twisting. The other, the oblique fracture, would have been caused by bending.

[112] Dr. Nolan’s evidence was that all of the circumstances, when considered in light of the literature she reviewed, were highly suspicions for non-accidental causes. Moreover, she did not think they were consistent with the accidental mechanism that Dr. Wedge proposed.

[113] I found Dr. Nolan to be a very compelling witness. She is trained in the detection of abuse. She candidly acknowledged the limitations of her experience. She appeared to me to be very well-versed in the relevant literature. She relied on it, in addition to her experience, in coming to her conclusions. She was careful not to over-state her opinions. For instance, she said that “highly suspicious” for inflicted injury was the highest she would ever offer in evidence.

[114] Dr. Nolan was also very balanced in her evidence that she could not say that the injuries were not accidental. Rather, she based her conclusion on the fact that she could not see how Dr. Wedge’s accidental mechanism could have actually happened.

[115] Dr. Wedge, by contrast, testified in a manner that I found to be less persuasive. While he obviously had, over his long career, considerable experience with fractures, he seemed to base his opinions almost entirely on his personal experiences, without reference to the relevant, contemporary literature.

[116] For instance, Dr. Wedge testified that he had seen a case in which a child had bilateral humeral fractures that had been caused accidentally. He was asked for details about this case and was able to provide none. I was not persuaded he had a good memory of ever having dealt with such a case.

[117] There are other examples of Dr. Wedge basing his opinions exclusively on his own experience. For instance, he opined that children break bones more easily than adults, and with less force, and that children can sustain fractures from seemingly trivial injuries. This was based on him having seen broken bones in children. It seems to me that had he wished to make this point persuasively, he would have offered some academic support for it. He did not.

[118] When he did refer to the literature, I was not convinced that his evidence was informed by it or that he was familiar with it. For example, when Dr. Wedge was asked about the short fall literature, he said that the only article he had read was the one provided to him by counsel, the article that was Exhibit 12. Dr. Nolan had testified that there was a significant body of literature on short falls. It appeared to me that Dr. Wedge was unaware or unfamiliar with this body of literature.

[119] Then, under cross-examination, Dr. Wedge was referred to the list of articles at the end of Exhibit 12. At that point, for the first time, he purported to recall having read two of them. I found this unpersuasive.

[120] I also found that Dr. Wedge was prone to exaggeration. For instance, he initially agreed that small infants lack sufficient mass to generate enough velocity to break bones. However, he had added a caveat that there must be scaling and that a child falling a short distance is like an adult falling from a ten foot ladder. Under cross-examination, he agreed that proper scaling would actually mean that it would be like an adult falling from a height of three and a half feet, not ten feet.

[121] Similarly, I found that Dr. Wedge wavered in terms of what he thought was the likelihood of the fractures having been caused accidentally or by inflicted injury. In his report, Dr. Wedge initially said that he viewed his proposed mechanism as just as probable as that the injuries were caused by inflicted injury. He then said that “the total circumstances surrounding the case made is more likely that Hayden’s injury was accidental rather than non-accidental”. In his examination in-chief, he reverted to the idea that neither was more probable. The shifting levels of certainty cause me to have concerns about the reliability of Dr. Wedge’s evidence.

[122] I also found Dr. Wedge to be somewhat rigid in his views. For instance, when it was suggested to him that he had not considered the fact that Mr. Allen gave evolving versions as to what had happened, he did not seem willing to think about whether this impacted on his opinion at all, and dismissed the Crown’s suggestion as speculative and hypothetical. It was clear to me that he was very uneasy with any challenge to his opinion.

[123] I accept that in his report, Dr. Wedge’s proposed mechanism seemed to include a number of factual errors. For instance, he wrote of Hayden pulling himself up, which the evidence suggested he could not do alone. He wrote of Hayden “tripping”, when Hayden was left sitting. He postulated that Hayden could have rolled when that was not something that he was doing.

[124] However, ultimately, Dr. Wedge’s mechanism involved Hayden moving and getting his arms caught between the cushions and then fracturing them both as he fell. He said that he did not rely on Hayden tripping or rolling.

[125] I do not think anyone can say what Hayden may or may not have done in terms of moving. He was an active six month old. There were animals in the house that may have stimulated him. He had toys with him. He had shown an ability previously to lunge forward and to roll over. In my view, it was a serious error in judgment for him to have been left in the corner of the couch at all, given his stage of development. I accept that it is very plausible that he could have moved from the position he was left in, with the pillow on his lap. I accept that he could, reasonably, have lunged or rolled forward to the edge of the couch.

[126] The question is then whether it is plausible that he broke his two arms as he fell.

[127] Dr. Wedge’s proposed mechanism has Hayden’s two arms plunging between the cushions. While this does not seem likely to me, I am not persuaded that this is implausible.

[128] I must say that I have difficulty in understanding the rest of the proposed mechanism of Dr. Wedge. I found his evidence to be somewhat imprecise and difficult to envisage. While he says it could account for the fractures, he also acknowledges that he is not certain precisely how Hayden might have fallen and whether he has the mechanism accurately.

[129] Despite all of my concerns about Dr. Wedge’s evidence and proposed accidental mechanism of injury, having considered all of the evidence, I am not satisfied beyond a reasonable doubt that the fractures were caused by Mr. Allen. I say this for a couple of reasons.

[130] First, while I cannot say that I accept Mr. Allen’s statement as the truth, it does leave me with a reasonable doubt. He had no reason to hurt Hayden. He had very little time between the time Ms. Ouellette went to the bathroom and the time he took Hayden to her in the bathroom to cause the injuries. There is no explanation for why he would have injured Hayden. There is no evidence as to what he might have done to cause the fractures. Moreover, immediately after the injuries, Mr. Allen took steps to tell Ms. Ouellette and to ensure that Hayden got the care he needed, including calling an ambulance. When he spoke to the police, he was consistent in his denial of having done anything, despite being strongly pressured by the police. He offered to take a lie detector test. On the basis of all of this, I am left with a reasonable doubt on the basis of his evidence as to whether he caused Hayden’s fractures.

[131] Second, independent of the evidence of Dr. Wedge, about which I have some real concerns, I am not persuaded, on the basis of Dr. Nolan’s evidence, of Mr. Allen’s guilt beyond a reasonable doubt.

[132] This case is highly suspicious. The injuries are unusual – both in terms of being bilateral and because of the fact that they are mid-shaft. I accept that an infant is unlikely to suffer a humeral fracture, let alone mid shaft bilateral humeral fractures, as a result of falling off the couch.

[133] I accept that Dr. Nolan is an expert in child abuse and that she is not persuaded that the accidental mechanism proposed is reasonable. However, I am not convinced that the combination of being highly suspicious for inflicted injury, and there being a less than persuasive accidental mechanism for the injury, leads to the required standard of proof beyond a reasonable doubt. In a circumstantial case like this, I cannot convict unless I am satisfied that the inference that Mr. Allen inflicted Hayden’s injuries is the only reasonable inference. Dubious as I am about Dr. Wedge’s proposed mechanism, I cannot conclude that it is implausible in a case such as this where there are so many unknowns.

[134] In a case in which no one can be certain what happened, it is very difficult for the Crown to establish guilt beyond a reasonable doubt. In finding Mr. Allen not guilty, as I have said, I am not accepting his evidence as necessarily being true, though it does leave me with a reasonable doubt. Nor am I accepting Dr. Wedge’s proposed mechanism of injury as likely. The real difficulty is that Dr. Nolan cannot say that this was not accidental, and her evidence does not, in my view, establish beyond a reasonable doubt that Mr. Allen caused the fractures.

F. Conclusion

[135] Mr. Allen will be found not guilty.

[136] I wish to thank both counsel for the care and diligence they showed in presenting this case.

Woollcombe J.

Released: June 16, 2017