CITATION: R. v. S.B., 2017 ONSC 5924

COURT FILE NO.: 83/15 (London)

DATE: 20170928

Oral Decision: September 28, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.B. and A.D.1

Accused

Elizabeth A. Maguire and Natalie Kuehn, for the Crown

Gordon D. Cudmore and Perrie M. Douglas, for the Accused, S.B.

Kenneth S. Marley, for the Accused, A.D.1

HEARD: June 5-9, 2017; June 12-14, 2017; June 20-30, 2017; July 4, 2017

REASONS FOR JUDGMENT

pomerance j.:

I. INTRODUCTION

[1] R.D. (“R.D.”) was 20 months old when he was scalded with hot coffee. He died three days later. Left untreated, the burns – largely third degree burns covering 25 percent of his body – resulted in death through dehydration and ketoacidosis, a fatal level of acetone in the blood. This was a tragic and needless death. Proper medical intervention would invariably have saved R.D.’s life.

[2] R.D.’s mother, A.D.1, and her boyfriend, S.B., are charged with criminal negligence causing death, and failing to provide the necessaries of life. The Crown asserts that both accused are criminally liable. Both had a duty of care; that they breached it by failing to obtain medical treatment; and that the breach reflected a marked and substantial departure from the conduct of a reasonable and prudent parent or guardian.

[3] Mr. S.B. maintains that he is not guilty on either count. He blames Ms. A.D.1 for R.D.’s death, saying that he was just a boyfriend and had no legal duty to care for R.D.. Ms. A.D.1 acknowledges that, as a parent, she had a duty of care. However, she blames Mr. S.B. for R.D.’s death, saying that she delegated care of the child to Mr. S.B. during the last days of the child’s life.

[4] Ms. A.D.1 testified at trial. Mr. S.B. did not. I have applied the well-known paradigm in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, not only to the testimony of Ms. A.D.1, but to any evidence from witnesses or exhibits that has the potential to exculpate the accused before the court.

II. THE CHARGES

[5] Mr. S.B. and Ms. A.D.1 are jointly charged on Count #1 that they, between May 16, 2014 and May 21, 2014, inclusive:

Did, by criminal negligence, to wit, failing to get the victim R.D. medical attention for injuries from which he was suffering, thereby cause the death of R.D., contrary to section 220, clause (b) of the Criminal Code of Canada.

[6] Each is charged separately with failing to provide the necessaries of life as Count #2 and Count #3, respectively. Ms. A.D.1 is charged as a parent, whereas Mr. S.B. is charged as a guardian. Count #2 alleges that A.D.1:

being the parent of R.D., a child under the age of sixteen years, did fail without lawful excuse to provide the necessaries of life to R.D. and did thereby endanger his life, contrary to section 215, subsection (2) clause (a)(ii) of the Criminal Code of Canada.

[7] Count #3 alleges that S.B.:

Being the guardian of R.D., a child under the age of sixteen years, did fail without lawful excuse to provide the necessaries of life to R.D. and did thereby endanger his life, contrary to section 215, subsection (2) clause (a)(ii) of the Criminal Code of Canada.

III. BACKGROUND AND EVIDENCE

[8] I will begin by examining the evidence led by the Crown at trial. Thereafter, I will turn to the testimony of Ms. A.D.1. This was a lengthy trial and I do not propose to exhaustively recite the evidence. I will, however, describe relevant events in some detail because the chronology is important.

A. Persons and relationships

[9] Before R.D. died, Ms. A.D.1 had four children. R.D. was the youngest of the four, at 20 months in May 2014. T.D., at 10 years of age, was the oldest child. C. was 6 years old, and B. was 4 years old. In May 2014, all four children lived with Ms. A.D.1 and Mr. S.B. in Strathroy, Ontario. Mr. S.B. was not the biological father of any of the children, though, according to T.D., he shared in the care of R.D. such as changing his diaper and feeding him bottles. T.D. testified that she sometimes called Mr. S.B. “S.B.” and sometimes called him “Dad.” She testified that R.D. called Mr. S.B. “Dad.” In cross-examination, T.D. acknowledged that the children referred to all of Ms. A.D.1’s boyfriends as “Dad.”

[10] Before the May 2014 long weekend, R.D. was walking and playing with toys. He had begun to say a few words. He drank bottles which were prepared by Ms. A.D.1 and, occasionally, by T.D.. He sometimes ate solid food.

[11] Mr. S.B. and Ms. A.D.1 began a romantic relationship in January 2014, which continued until the day of R.D.’s death. The relationship had an “on again/off again” quality. C.F., Mr. S.B.’s ex-girlfriend, testified that she was still involved with Mr. S.B. in January and February 2014 and that he lived with his mother during this time. Certainly, by March, 2014, Mr. S.B. was living with Ms. A.D.1 and the children in Sarnia, and he later moved with them to Strathroy. He was living there when R.D. was burned and in the days following.

[12] The Crown called a number of family members to testify. These included Ms. A.D.1’s mother, A.D.2, and her maternal grandmother, B.L.. Ms. B.L.’s sister, D.F., was visiting from Newfoundland during relevant events, and she testified at trial through a video link. J.F. is Ms. A.D.1’s half-brother. He testified about babysitting R.D. and the other children the night before R.D. died. Mr. S.B.’s father, J.B., with whom he has a strained relationship, testified about the phone call Mr. S.B. made to him after R.D.’s death. Several people who lived in the neighborhood testified about their observations of relevant events.

B. Contact with the Children’s Aid Society

[13] Ms. A.D.1 and Mr. S.B. came to the attention of the Children’s Aid Society (“CAS”) while they were still living in Sarnia. Ms. A.D.1’s daughter, B., went to school one day with bruises on her neck. The school contacted CAS and an intake worker, Laura Carter, came to the school to interview all three children. On April 29, 2014, Ms. Carter attended at Ms. A.D.1’s house. When she arrived she saw S.B. getting out of a car, holding a baby (R.D.), and two bags of groceries. When she went into the house, she perceived that it was filthy and unsafe. In cross-examination, she acknowledged that it did look like the family was moving and that that could explain some of the mess. Ms. Carter directed Ms. A.D.1 and Mr. S.B. that they should not leave the children there overnight.

[14] Ms. Carter also directed Ms. A.D.1 to take B. to see Dr. Singh, the family pediatrician. On May 5, 2014, she called Ms. A.D.1 to ask why she had not yet taken B. to the doctor. Ms. A.D.1 explained that she had been too busy moving. Evidence from Dr. Singh established that B. did finally attend at his office for bruises on May 12, 2014. Dr. Singh wrote a letter to the CAS on May 16, 2014, and again on June 10, 2014.

[15] On May 9, 2014, the CAS file was transferred to Strathroy and assigned to a new worker. She made contact with Ms. A.D.1 and arranged for a home visit on two separate occasions. On each occasion Ms. A.D.1 cancelled the visit, leaving messages with the office and on her phone. The two did not meet before R.D. died.

C. May 18, 2014: R.D. is burned

[16] On May 18, 2014, a cup of very hot coffee was spilled on R.D. when he was in his crib. It is not known just how this happened. There is no indication that the spill was intentional. At trial it was accepted that it was likely accidental. Mr. S.B. was the only person in the house that drank coffee. Photographs of the scene reveal that a jar of coffee and a mug were both in R.D.’s room. In the statements he made in a police cell, Mr. S.B. acknowledged that he was present when the coffee spilled and that he had just heated it in the microwave. Ms. A.D.1 became aware of the event shortly after it occurred.

[17] The time of the burn can be estimated by looking at internet and texting traffic on Ms. A.D.1’s phone. At 10:47 a.m., Ms. A.D.1 did a Google search for “burn on baby hand.” The burn obviously occurred sometime before this search was conducted. Ms. A.D.1 followed up with other searches. At 11:35 a.m. Ms. A.D.1 did a Google search for “parent and child health topics: scalds.” At 11:43 a.m. she searched “baby grabs hot coffee what to do.” The records further disclose that Ms. A.D.1 visited a website entitled: “how to quickly treat a child with second degree burn” 16 times. _ Ms. A.D.1 then turned her attention to other matters, conducting multiple searches for shopping at thrifts stores, games, jewelers, pawn brokers, and buy and sell sites.

[18] Ms. A.D.1 sent texts in which she characterized the burn as an “emergency.” On the morning of May 18, 2014, Ms. A.D.1 was exchanging messages with Daniel Petru, who was interested in buying bike parts from her and Mr. S.B.. At 11:22 a.m., Ms. A.D.1 sent a text telling Petru: “emergency right now.” At 12:55 p.m. she sent a further text saying: “yeah probably but won’t be until at least 5…bad.” At 1:15 p.m., she texted to Petru: “sorry if I was short…the emergency happened so fast and obviously it’s drop everything and run…I’m still dealing with the emergency.”

[19] Phone records reveal that Ms. A.D.1 spoke to her mother, Ms. A.D.2, after the burn. She placed calls to her grandmother, Ms. B.L., and her sister, but those calls were two seconds and four seconds in duration, suggesting that there was no conversation. The call to her mother was longer. Ms. A.D.2 could not recall what she and Ms. A.D.1 discussed due to a stroke she suffered in August 2014. She believed that she would have told Ms. A.D.1 to take the child to a doctor, but had no actual memory of doing so.

D. Nature and extent of the burn injury

[20] What was R.D.’s condition after the burn? Ms. A.D.1 testified that R.D. was fine and that the injuries were no worse than pink skin resembling a sunburn. I will deal with Ms. A.D.1’s description in due course. Suffice to say, the other evidence—including the photographs and testimony of medical professionals—casts serious doubt on the veracity of Ms. A.D.1’s claims.

[21] Dr. Christopher Scilley is the director of the Thompson Regional Burn Unit, which offers medical care for burns in London and Southwestern Ontario. He was qualified to give expert opinion evidence regarding the nature of R.D.’s burns and the course of medical treatment that would have been available had the child been brought in for care. Dr. Scilley did not examine R.D.. Rather, he based his opinions on photographs depicting the burns that were taken after R.D.’s death.

[22] The photographs were entered as exhibits at the trial. They are graphic and disturbing. It is difficult to describe the full effect of the visual images. Anyone looking at the photographs would have had to appreciate the gravity of the injuries and the need for medical intervention.

[23] Dr. Scilley confirmed that R.D. suffered a scald injury. He could not think of any other injury that would produce such an irregular burn pattern. He estimated that the burns covered about 18 percent of R.D.’s body surface area, though Dr. Schkrum, who performed the autopsy, found burns on 25 percent of R.D.’s body. R.D. was burned on his lower anterior abdomen, his lower back, his genital, and gluteal cleft area. Dr. Scilley testified that the burns were second and third degree in depth. Second degree burns tend to be more painful than third degree burns because nerve endings are exposed. With third degree burns, nerve endings are damaged and thus not as sensitive.

[24] Dr. Scilley testified that third degree burns could occur within 2 seconds of skin making contact with boiling water. If the child had clothing on, such as a diaper, when burned then the clothing would hold the heat and intensify the damage. According to Dr. Scilley, the burns would initially have blistered. A blister occurs when the epidermis (the outer layer of skin) separates from the dermis. Dr. Scilley testified that he could “be pretty certain that [the child] blistered.” This was because, in many areas, the epidermis was missing. The blisters would have developed quickly, likely within minutes of the burn. They would have been ruptured very easily and would have come off with the removal of clothing, such as a diaper. If ruptured, a straw-coloured fluid would seep out and the skin might peel off.

[25] Dr. Scilley explained that, after experiencing this type of burn, the person affected would go into burn shock and would lose circulating volume into the damaged tissue. The body would then compensate by increasing its heart rate. Fluid replacement would be critical to any treatment. If fluid is not replaced, then body tissue or organs will begin to shut down. The burn victim will become listless and less responsive, will stop eliminating urine, and might experience nausea and vomiting.

[26] Dr. Scilley estimated that in the first 8 hours after the burn injury, R.D.’s body would likely have compensated reasonably well. The day after the burn, R.D. would probably have stopped urinating. He would have been more lethargic and less responsive. He would have slept more, would be gaunt, his tissue would have appeared flaccid, his mouth dry, and his eyes sunken. All burn wounds progress over time, but usually stabilize within 48 hours, after which there is not much change.

[27] If R.D. had been brought into the burn unit and given appropriate treatment, his chance of survival would have exceeded 95 percent. Fluid replacement would have been intravenously administered. Oral hydration is not usually effective, though sports drinks would be more effective than water. R.D. would have received narcotics for pain and dressings for his wounds. Dr. Scilley said that Polysporin might have assisted for the superficial burn injuries, but does not penetrate the dermis and therefore does not assist with deeper burns. Aloe vera is of virtually no benefit in this type of situation.

[28] If taken for treatment, R.D. would have been hospitalized for some time. Doctors would have followed his progress for some years because of the nature of the burn. But he would, in all likelihood, have survived.

E. May 18–19, 2014: The visit to B.L.’s house

[29] The day that R.D. was burned fell on the May long weekend of 2014. It was T.D.’s birthday and, as part of her gift, she spent the weekend with her maternal grandmother, Ms. A.D.2. The other members of the family –Ms. A.D.1, Mr. S.B., R.D., C., and B. – went to Sarnia and eventually made their way to Ms. B.L.’s home in Parkhill, Ontario.

[30] Ms. B.L. had a good relationship with Ms. A.D.1. She spent a lot of time with her and was with Ms. A.D.1’s children “every chance” she could get. She described R.D. as a “happy little guy” who was “just starting to say words”. She knew that Ms. A.D.1 was in a relationship with Mr. S.B., but she did not know him very well. Ms. B.L. was a retired nurse. That weekend, Ms. B.L.’s sister, Ms. D.F., was visiting from Newfoundland.

[31] Ms. B.L. testified that Ms. A.D.1 called ahead and said she wanted to come over. She told Ms. B.L. that R.D. had been scalded. Ms. B.L. asked Ms. A.D.1 whether R.D. had been taken to a hospital or a doctor and she said no. She explained that it had happened a few days ago and he was coming along.

[32] The details of the visit are the subject of conflicting testimony. In their testimony, Ms. B.L. and Ms. D.F. offered very different accounts. For example, Ms. B.L. recalled the family arriving at 9:30 or 9:45 p.m. Ms. D.F. recalled the arrival as being later, at 10:30 p.m. or 11:00 p.m. Ms. D.F. testified that R.D. threw up shortly after coming into the house. Ms. B.L. testified that he did not throw up until much later that night, after his bath. Perhaps more significantly, the witnesses disagreed about the extent to which R.D. was exhibiting discomfort. Ms. D.F. testified that R.D. was screeching and crying during the visit. Ms. B.L. testified that R.D. was “whiny” but otherwise fine.

[33] There is some common ground. Both Ms. B.L. and Ms. D.F. testified that Ms. A.D.1 gave R.D. a bath. Both witnesses said that R.D. wore a t-shirt in the tub, even though, according to Ms. B.L., in the past, he was bathed naked. Ms. A.D.1 took off R.D.’s diaper and handed it to Ms. B.L. who threw it in the garbage. Ms. B.L. testified that R.D. was holding on to Ms. A.D.1’s legs while she washed him. Ms. B.L. testified that Mr. S.B. was sitting on the toilet lid during the bath. She turned to him and told him to leave the bathroom. Ms. B.L. testified that Mr. S.B. responded by getting up and leaving the room. She testified that R.D. was holding on to Ms. A.D.1’s legs and whining. Ms. B.L. believed that this was because R.D. did not like water and therefore was unhappy in the bath.

[34] Ms. B.L. testified that she never saw the burns on R.D. during the visit.

[35] Ms. D.F. testified that she walked back and forth outside of the bathroom while R.D. was being bathed. She testified that she heard R.D. screaming and screeching. This lasted about 20 minutes. Ms. D.F. did not feel it was her place to go into the bathroom because it was not her grandchild.

[36] After the bath, Ms. B.L. looked after B. and C.. At one point, she went downstairs. R.D. was asleep on Ms. A.D.1’s chest. Ms. B.L. saw that R.D. had thrown up and offered to take the baby while Ms. A.D.1 showered. Ms. A.D.1 declined, saying that the baby was finally asleep and that he would be fine. Ms. B.L. testified that R.D. was snuggled into Ms. A.D.1, she was dressed and he was wearing a diaper. Ms. B.L. did not see a burn injury, though she clarified later in her testimony that R.D. had a bedsheet over him while he lay on Ms. A.D.1’s chest.

[37] The next morning, May 19, 2014, Ms. A.D.1 came upstairs with R.D. and gave him a bottle. Ms. D.F. testified that R.D. was placed in a big chair in the living room, but he kept crying and trying to move out of the chair. When he was placed on the floor he was trying to walk and was whining. Ms. D.F. believed that R.D. was in discomfort. Ms. B.L. saw R.D. walking in a wobbly fashion, but she thought that he simply had a full diaper.

[38] Ms. B.L. and Ms. D.F. both testified that Ms. B.L. told Ms. A.D.1 to take R.D. for medical treatment.

[39] According to Ms. B.L., she told Ms. A.D.1 to take R.D. to the clinic or the hospital and Ms. A.D.1 promised that she would. Ms. B.L. believed that she said the same thing to Mr. S.B. while they were in the living room. She repeated this admonition when she went out to the car to say goodbye to the family. Ms. B.L. gave R.D. a hug and said to Ms. A.D.1: “Be sure you take that baby to a doctor.”

[40] In her testimony, Ms. D.F. confirmed this. She said that the “one thing I heard B.L. say, A.D.1 make sure you take the baby to the clinic.” She believed that Ms. B.L. said that to Ms. A.D.1 while they were in the kitchen. On cross examination, she acknowledged that Ms. B.L. might not have used the word clinic – she might have told Ms. A.D.1 to take the baby to a doctor.

[41] When Mr. S.B. and Ms. A.D.1 left Ms. B.L.’s house, they took R.D. with them. B. and C. remained behind at Ms. B.L.’s house.

G. May 19, 2014: The lie about medical treatment

[42] According to Ms. B.L., she received a telephone call from Ms. A.D.1 and Mr. S.B. between 5:00 p.m. and 6:00 p.m. on May 19, 2014. Ms. A.D.1 was the first to speak. She said “Well I guess you’re happy now. We did take R.D. for medical attention.” Mr. S.B. then came on the line and said that they had taken the baby for medical attention and that they were at a Shopper’s Drug Mart waiting for a prescription to be filled for a medical cream to treat the burn. Ms. B.L. was happy that R.D. had been taken for medical care and did not pursue the matter further.

[43] The phone records confirm the timing of this call as being close to 7:00 p.m. On May 19, 2014, at 7:09 p.m., a 15-second call was placed from Ms. A.D.1’s phone to Ms. B.L.’s phone. At 7:22 p.m., Ms. B.L. called Ms. A.D.1, with the call lasting three minutes and two seconds. Mr. S.B.’s phone was used to text someone else at 7:22 p.m. If Mr. S.B. was texting someone on his own phone at that time, this tends to confirm that Ms. A.D.1 was the first person on the line speaking with Ms. B.L..

[44] Contrary to what Ms. A.D.1 and Mr. S.B. said to Ms. B.L., R.D. was never taken for medical treatment. The clinic in Grand Bend was closed on Monday for the long holiday weekend. R.D. was not taken anywhere else for medical attention. The statements made to Ms. B.L. were, sadly, untrue.

H. May 19, 2014: T.D. observes that R.D. is “really sick”

[45] Later that evening, Ms. A.D.1 and Mr. S.B. picked up T.D. from Ms. A.D.2’s house. Ms. B.L., together with her husband J. and Ms. D.F., drove C. and B. home to Strathroy.

[46] T.D. testified that when she was picked up, R.D. “was really sick”. She said that his eyes were really red and he was having a hard time drinking. T.D. sometimes took care of R.D., changing his diaper and giving him bottles; after the burn, Ms. A.D.1 told T.D. that she was to leave R.D. alone. When they got home, Ms. A.D.1 carried R.D. into the house but he started crying because Ms. A.D.1 accidentally touched his burn. R.D. was put to bed. Ms. A.D.1 and Mr. S.B. told T.D. that she was not allowed to go into the room. T.D. was allowed to give R.D. a bottle but was not allowed to do anything else to care for him.

I. May 20, 2014: Slashed tires and a missing dog

[47] According to T.D., on the morning of May 20, 2014, R.D. “looked really sick; didn’t look normal.” He could not raise his hand to grab the bottle. T.D. was concerned. She told Ms. A.D.1, who responded that he was probably just tired because he had a hard time sleeping with the burn.

[48] As it turned out, Ms. A.D.1 was more concerned about other events that day than she was her son R.D..

[49] On the morning of May 20, 2014, Ms. A.D.1 discovered that someone had slashed the tires on her car. T.D. recalled seeing the slashed tires when she was on her way to catch the bus for school. In addition, one of Ms. A.D.1’s dogs was missing. Ms. A.D.1 spoke to Ms. B.L. about what had happened, and Ms. B.L. suggested that she call the police. During the call, Ms. B.L. asked if “the kids were ok.” Ms. A.D.1 said that the kids were fine. Ms. B.L. did not specifically ask about R.D. because she did not believe that there was any reason to be concerned.

[50] Constable Stephen Taylor, a Strathroy police officer, was assigned to speak to Ms. A.D.1 about her complaints Tuesday morning. He was contacted by dispatch at 8:35 a.m. and advised that the complainant wanted to speak to someone on the phone. The officer called the number assigned to Ms. A.D.1. The female on the line identified herself as A.D.1 with a date of birth of […], 1985 and an address of P[…] Street in Strathroy. Just a few minutes into the call, Ms. A.D.1 asked if she could call the officer back. She did not call back, and so the officer called her again at 11:40 a.m. During that call, Ms. A.D.1 told the officer that she believed that Ms. C.F., Mr. S.B.’s ex-girlfriend, was responsible for the slashing tires and the missing dog. The officer spoke to Ms. C.F., but did not obtain any helpful information. Accordingly, he did not speak to Ms. A.D.1 again.

[51] Robert Brooks was a family support worker with Ontario Works. On May 20, 2014 he went to see Ms. A.D.1, having had a referral from a case worker in Strathroy. This was an unscheduled visit; he was in the city for two other calls and thought that he would see if she was available to sign some documents. Ms. A.D.1’s application for housing specified that she was living in the residence with just her four children. When Mr. Brooks arrived at the house he saw Ms. A.D.1 standing at the front door. He also saw someone changing the tires on a vehicle outside the house. He introduced himself to Ms. A.D.1 and asked her to sign some documents. She did so on the porch of the residence. She did not invite him to go inside. Ms. A.D.1 told Mr. Brooks that her tires had been slashed overnight. She seemed anxious and upset about that. She also told Mr. Brooks that one of her dogs had been stolen the night before.

[52] That afternoon, Ms. A.D.1 took two separate taxis: one trip she purchased new tires for the car, the other trip she went to get a new bank card and bought some groceries. A family member helped Ms. A.D.1 change the tires on her car. She found her missing dog in a shelter and he was returned home.

[53] Ms. A.D.1 had contact with many individuals in connection with her car and her dog. She did not say a word to anyone about her son.

[54] That afternoon, Ms. C.F. came over to speak with Ms. A.D.1. She told Ms. A.D.1 that she was not responsible for the slashed tires and that if she had a problem with Ms. A.D.1 she would take it up with her directly. Ms. C.F. testified that Ms. A.D.1 told her that she needed her car to take the children to an appointment. Ms. C.F. told Ms. A.D.1 that she would loan Ms. A.D.1 her vehicle, but Ms. A.D.1 never took her up on the offer.

[55] While Ms. C.F. and Ms. A.D.1 were speaking outside of the residence, Mr. S.B. came outside and told Ms. A.D.1 to come inside, saying: “Come in or I’m leaving.” Ms. A.D.1 responded: “I’ll come in when I’m ready.” Thereafter, Ms. C.F. saw T.D. come outside on several occasions. On the first occasion, T.D. told Ms. A.D.1: “Dad wants you to come inside.” On the second occasion, she said “Dad is going to pack your stuff and leave if you don’t come in.” On the third occasion, she said “Dad says to tell you R.D. got hurt.” It was only upon hearing that R.D. got hurt that Ms. A.D.1 responded by going into the house.

J. May 20, 2014: J.F. babysits

[56] The night of May 20, 2014, Ms. A.D.1 and Mr. S.B. went to Sarnia to pick up some furniture for T.D.’s bedroom. Ms. A.D.1 arranged for her half-brother, Mr. J.F., to babysit the children. He arrived at the house at around 5:00 or 6:00 p.m. R.D. was in his room. Mr. J.F. testified that he went in and checked on R.D. once with a bottle. He saw R.D.’s burns on the skin between the bottom of R.D.’s shirt and the top of R.D.’s diaper. Mr. J.F. testified that he thought R.D. should be taken to hospital. He believed that the burns were third degree burns, deep in the flesh. He testified that he had once been burned badly and he was relying on what he knew of that experience. Mr. J.F. did not believe that he changed R.D.’s diaper. He gave R.D. a bottle and R.D. seemed fine after that. He checked on R.D. from time to time and “he was good, he was fine.”

[57] T.D. had been told by Ms. A.D.1 that Mr. J.F. had a tendency to steal things and that she should keep an eye on him. T.D. clearly loved being in her Uncle J.F.’s company. She accompanied Mr. J.F. when he went into R.D.’s room. According to T.D., Mr. J.F. did change R.D.’s diaper, at which time T.D. saw the burn injury for the first time. T.D. testified that “it was bad.” When she saw R.D.’s shirt pulled up she left the room because it was “gross”.

[58] Mr. J.F. testified that when Ms. A.D.1 and Mr. S.B. arrived home they paid him for the babysitting. He heard Mr. S.B. tell Ms. A.D.1 that he would go in and check on R.D..

K. May 21, 2014: The day R.D. died

[59] R.D. died on Wednesday, May 21, 2014. It is not known what time he died. By all accounts R.D. was very quiet that day, no doubt because his bodily functions were shutting down.

[60] Ms. A.D.1, Mr. S.B. and all four children were at home that day, sick with colds or the flu. T.D. did not see R.D. that day. According to her, he was not taken out of his crib. T.D. did not hear him make any noise at all. T.D. testified that after Ms. A.D.1 got up and had breakfast, Ms. A.D.1 went in and gave R.D. his bottle.

[61] Other evidence would suggest that neither Ms. A.D.1 nor Mr. S.B. checked on R.D. at all that day. When speaking to each other in the cells at Strathroy Police Station, Ms. A.D.1 and Mr. S.B. spoke about staying in bed, with neither getting up to look in on the child.

[62] That evening, Ms. A.D.1 and Mr. S.B. decided to go shopping at Walmart. They were going to leave all four children alone in the house. Ms. A.D.1 got into the driver’s seat with Mr. S.B. beside her in the front passenger seat. Before they left, T.D. came outside and said that she did not want to be alone in the house; she was concerned that R.D. might need his diaper changed. Mr. S.B. then got out of the car and came into the house. T.D.’s evidence about this event was confirmed by T.M., a neighbor who was outside of the house at the time.

[63] When Mr. S.B. went into the house, he discovered that R.D. was dead. He opened the door to R.D.’s room, quickly came back out, and started panicking. According to T.D., Mr. S.B. started sweating and told the children to go upstairs. He immediately texted Ms. A.D.1 to come home. She came home and started crying. T.D. came back downstairs and saw Ms. A.D.1 changing R.D.’s clothes and his diaper. T.D. testified that when she went into R.D.’s room she saw a puddle on the floor and a cold soggy piece of pizza. The room smelled “really bad.”

[64] T.M. saw Ms. A.D.1 return to the house, then run outside about five minutes later. She saw Mr. S.B. come out from the back of the house, hop the fence, and proceed in the direction of his mother’s house. It was there that he called an ambulance. N.L., a neighbour, saw a trash bag deposited in the garbage area. The bag contained a letter in Ms. A.D.1’s name, a pill box, and drug paraphernalia. I find that Mr. S.B. took the time to deposit the trash bag there after he found R.D.’s body, in order to dispose of the drug related evidence.

[65] An ambulance arrived but initially went to the wrong house: it went to Mr. S.B.’s mother’s house rather than the house on P[…] Street. It made its way to the correct residence. Ms. T.M. was still outside the house. She heard more screaming and saw Ms. A.D.1 come out of the house yelling: “No, not my son.”

[66] Detective Constable Christopher Graham was dispatched to P[…] Street. When he entered the house he saw Mr. S.B. cradling a baby in his arms. He went over and asked Mr. S.B. to hand the child to him. Mr. S.B. said “Really?” The officer said “Yes, hand him to me.” The child appeared to be lifeless. Detective Constable Graham cradled the child in his left arm and placed the child’s head in the palm of his hand. He looked the child over and saw what he believed to be blood pooling down the neck. He lowered the child to the ground and, while Ms. A.D.1 assisted by holding his head, he administered CPR. Mr. S.B. was visibly upset, as was Ms. A.D.1. Detective Constable Graham performed chest compressions on the child for 30 seconds to one minute. When paramedics arrived, they told him to stop. It was clear that the child was dead.

[67] The coroner was contacted. Dr. Gary Perkin testified that when he entered the residence at P[…] Street, he saw a child lying on the kitchen floor covered with a blanket. He removed the blanket and felt for a pulse. He observed significant bluish discolouration. There was no sign of life. Upon removing the sleeper and the diaper he observed extensive thermal burns on the left side of the lower chest, the abdomen, genitalia, and inside of the upper thighs. There were also extensive thermal burns on R.D.’s back.

[68] Officer David Vieira arrived on the scene at 11:12 p.m. He saw R.D. lying on the kitchen floor underneath a blanket. He began to take photographs of the scene and saw Dr. Perkin remove the blanket and unzip the child’s sleeper, which had been zipped up to his neck. Once the sleeper was unzipped, officer Vieira could see burns on R.D.’s torso and genitalia. Dr. Perkin pronounced R.D. dead. The child’s body was removed at 2:29 a.m. and taken to University Hospital for a post-mortem examination.

[69] While Dr. Perkins was conducting his on-site investigation, Detective Constable Graham went up the stairs with Mr. S.B.’s mother, C.B., and tried to keep them calm. Ms. C.B. took the other three children to her house. Ms. A.D.1 and Mr. S.B. came over there later.

[70] The next day, T.D., C., and B. were removed from the home by child protection workers and were placed in care.

L. Mr. S.B. calls his father

[71] Mr. S.B. had been estranged from his father, J.B., for some time before R.D. died. The two had not had contact for a few years. On Thursday, May 22, 2014, Mr. S.B.’s father came home after working the 3-to-11 shift and received a call from Mr. S.B. at around 11:25 p.m. When his father answered, Mr. S.B. began repeating: “My son is dead. My son is dead.” Mr. S.B. sounded extremely upset. His father asked him to slow down and he repeated it a few more times. At one point, a female came on the line. Mr. S.B.’s father worked at the Strathroy Hospital and Mr. S.B. asked him to expedite the determination of the cause of death.

M. Cause of death

[72] Dr. Michael Sckrum performed the post-mortem examination of R.D.’s body. R.D. was 20 months old. He weighed 9.2 kg or 20 and a half pounds. He was wearing a sleeper and a disposable diaper. The sleeper was stained in red and soiled by green stool. His eyes were sunken. He had burns on his abdomen, extending into the lower left chest, down into the groin area, and the inner aspect of the upper thighs. He was burned around both flanks in the back area. There was a burn on the left index finger. There were signs of lividity.

[73] At the time of autopsy, the burns in the front of the body were leather-like in appearance. On the back, the burns were more red and pliable. There was no sign of infection or abscess.

[74] Most of the burns, with the exception of the right flank and scrotum, were full thickness burns. This means that the burn penetrated through two layers of skin down to the fat below. Of 11 samples taken, nine reflected full thickness burns. Full thickness burns are sometimes called third degree burns. Dr. Schkrum testified that the injuries were consistent with a scald burn. It appeared that the hot fluid had the most contact with the front part of the body, but tracked around the sides and pooled at the back of R.D.’s body. It also tracked down into the genital area. The genitalia was burned, with the skin of the scrotum sloughing off, and the penis was red.

[75] The immediate cause of death was dehydration and ketoacidosis caused by the thermal burns. Dr. Schkrum explained that once the protective layers of skin are gone, fluid leaks out of the body and that loss of fluids results in dehydration. In addition, the burns cause metabolic disturbance. The body may enter a hyper-metabolic state a few days after the burn is inflicted, causing fat to break down into ketone bodies, such as acetone. This renders the blood to be more acidic which causes cells to die. R.D. was found to have more than twice the fatal level of acetone in his blood.

[76] Dr. Schkrum did not detect any creams or lotions on the body.

[77] Methamphetamine was detected in R.D.’s urine. A toxicologist, Betty Chow, could not say whether R.D. had consumed the drug or whether he had just been exposed to the drug. The drug could have ended up in the urine through passive inhalation or second hand smoke. The methamphetamine in R.D.’s blood did not have any bearing on the cause of death.

N. Post-Arrest Statements: The cell videos

[78] Following the arrest of Ms. A.D.1 and Mr. S.B., they were placed in cells at the Strathroy police station. Each was placed in a separate cell, with an empty cell in between. The two were able to communicate with one another by speaking loudly, given the lack of insulation in the bricks and the pipes. Both cells were equipped with video surveillance. Only Mr. S.B.’s cell was equipped with audio surveillance. Signs outside of the cells advised inmates that they were subject to video and audio surveillance.

[79] At trial, the Crown introduced several hours of video/audio recordings of Ms. A.D.1 and Mr. S.B. in their cells. The videos were presented on a split screen so that the viewer could observe both cells simultaneously. Mr. S.B.’s voice was clearly audible because his cell was equipped with audio capabilities. It was more difficult to make out what Ms. A.D.1 was saying, but the tape captured many of her remarks.

IV. TESTIMONY OF A.D.1

[80] A.D.1 testified at trial and offered a very different account than those offered by Crown witnesses. Ms. A.D.1’s testimony covered a range of topics. Among them was the following:

1. Ms. A.D.1’s testimony about the burn injury: Ms. A.D.1 testified that the burn injury that she saw manifested as pink skin, much like a sunburn. She denied that there was any blistering. According to her R.D. was fine, he was happy and giggling. She checked him frequently, but saw no change. On her evidence, there was little cause for alarm.

2. Ms. A.D.1’s delegation of parenting duties: Ms. A.D.1 testified that the last time she saw R.D. was the night of Monday, May 19, 2014, meaning she did not see R.D. in the two days leading up to his death. During that period, she delegated the care of R.D. to Mr. S.B.. Ms. A.D.1 testified that Mr. S.B. was violent and that he prevented her from seeing R.D.. Yet she also testified that she trusted Mr. S.B., that they were a family, and that there was no reason to doubt that he was caring for R.D..

A. The burn

[81] Ms. A.D.1 confirmed that on the May 2014 long weekend T.D. went to visit Ms. A.D.2 as part of her birthday gift. On Sunday May 18, 2014, Ms. A.D.1 was in the basement talking to Mr. S.B.. She was going to start the laundry. He was going upstairs to make a coffee for himself before changing R.D. and putting him down. Ms. A.D.1 heard a cry from R.D. – “one yelp” or “cry.” She said “he’s never made that sound before.” She ran up the stairs and noticed that the door to R.D.’s room was closed. Mr. S.B. came out of the bedroom holding R.D.. She asked what had happened and Mr. S.B. said “[T]ake him, take him, I’m going to faint.”

[82] Ms. A.D.1 asked Mr. S.B. what had happened and he told her “four different stories.” She testified that she went into the room and saw coffee in the dip in the mattress. She believed that coffee had been spilled on R.D.. She took the diaper off right away and took R.D. downstairs so that she could look him over “from head to toe.” She looked him over and put some cream on him, either Polysporin or aloe vera, and then put another diaper on him.

[83] When asked what parts of R.D.’s body were affected, Ms. A.D.1 said: “[I]t was just like, his legs, like his upper…legs. There was um, nothing and I think there was a little mark on his arm but that was it.” She testified that there were no visible signs on his back on Sunday morning. When asked how R.D. was behaving, Ms. A.D.1 testified that “he was fine.” He was drinking his bottle and he was giggling.” She testified that she telephoned her sister, her mother, and her grandmother. She claimed that her mother could hear R.D. giggling in the background and that it did not sound like he was hurt.

[84] Ms. A.D.1’s daughters came downstairs to watch television when Ms. A.D.1 went upstairs to get her phone from Mr. S.B.. Mr. S.B. left the house and Ms. A.D.1 went back downstairs. She stated that she remained in R.D.’s company. She testified that R.D. “was fine. He was walking around and his sisters and him they were laughing”. She testified that she was watching his body very carefully. She confirmed that it was just the upper legs that were affected by the burn. She did not believe that R.D. was in any discomfort or pain. According to Ms. A.D.1, when she looked R.D. over, “his skin was a little bit pink. It wasn’t blistered, it wasn’t none of that. It looked kind of more or less like a sun burn.”

[85] She testified that she called her sister and her grandmother and asked them for advice. She also explored various websites, but insisted that they did not direct her to take R.D. for medical treatment.

B. Selling stolen jewellery

[86] Ms. A.D.1 testified that later that same day she received text messages from Mr. S.B. saying that she needed to grab the kids and they needed to leave town. He came to the house and said that they had to leave. Ms. A.D.1 drove her car. Mr. S.B., R.D., C., and B. were present. T.D. was still at Ms. A.D.2’s. During the trip, Mr. S.B. told her that he had broken into his grandma’s house and stolen a number of items: he had taken jewellery, money, and a prescription for Lorazepam.

[87] According to Ms. A.D.1, they went to her sister’s house in Sarnia. S.B. refused to go into the house and they were only there for short time. Ms. A.D.1 testified that when she put R.D. in the car seat in Strathroy he was “fine.” When she took him out of the car seat at her sister’s house “he was fine, he was drinking a bottle.” The group went to McDonald’s. Ms. A.D.1 then drove to a Money Mart store that purchased jewelry. She testified that Mr. S.B. sent her into the store to sell the stolen jewelry so that Mr. S.B. could get money to buy drugs.

[88] Ms. A.D.1 testified that she followed Mr. S.B.’s instructions because if she had done anything else “there would have been consequences.” When asked to explain, she said: “S.B.’s violent.” She testified that she had seen Mr. S.B. become violent on more than 30 occasions during their relationship between January and May 2014.

[89] Ms. A.D.1 testified that throughout the afternoon she continued checking on R.D.’s condition to make sure that nothing had progressed, but “everything was still good. He was drinking, he was eating…he was fine.” She testified that she checked him each time that he was out of the car seat.

C. The visit to B.L.’s house

[90] Ms. A.D.1 called her grandmother, Ms. B.L., in Parkhill and they attended there, arriving at about 11:00 p.m. The girls rushed into the house, while Ms. A.D.1 brought R.D. in. She put bottles in the fridge. She talked to her grandmother and then decided to give R.D. a bath. Ms. A.D.1 got the bath ready and she rolled up her pants and got into the bath with R.D.. She testified that R.D. hates water. Mr. S.B. came into the bathroom and sat down while Ms. A.D.1 was in the process of taking R.D.’s shirt off. R.D. was fine and was holding onto her leg. She removed the shirt and put it on the ledge at the side of the tub.

[91] According to Ms. A.D.1, everything was calm until her grandmother came into the bathroom. Ms. B.L. sat on the ledge of the jacuzzi and started arguing with S.B., asking why he was in there, and pointing out that he is not the biological father. According to Ms. A.D.1, Mr. S.B. began arguing back saying that he was there for R.D.. R.D. got upset during the argument.

[92] Ms. A.D.1 took R.D. out of the tub and went downstairs to where the family would be sleeping. R.D. was wearing just a towel. She diapered him and lay with R.D. nestled on her chest. Ms. B.L. came back downstairs where she continued to argue with Mr. S.B.. R.D. then threw up. Ms. B.L. offered to take the child in order to allow Ms. A.D.1 to change her shirt. Ms. A.D.1 said no because R.D. was settled and R.D. did eventually go to sleep.

[93] The next morning, May 19, 2014, Ms. A.D.1 went upstairs with R.D. and fed him dry cereal. She then went down to do laundry and organize the clothes. When asked how R.D. looked that morning, she said:

[I]t was just really, like, pink and…like, when you have a bath, when you’re in the water and it’s hot and your skin goes pink kind of like that except it like, cause it would look like a sunburn.”

[94] Ms. A.D.1 testified that she went to have a shower. Mr. S.B. suggested that they ask Ms. B.L. to “watch the girls,” but Ms. A.D.1 thought that Ms. B.L. would not agree to it. Mr. S.B. responded by saying: “Watch. I’ll get her to watch the girls.”

[95] Ms. A.D.1 testified that before leaving, Mr. S.B. mowed the lawn outside Ms. B.L.’s house. He came to get Ms. A.D.1 and said they were going to Sarnia because he wanted to get rid of the rest of the jewellery. Mr. S.B. said that he had told Ms. B.L. that they were taking R.D. to a clinic and that is why Ms. B.L. agreed to take care of the girls. They stopped at a store to get more Gatorade for R.D.. When asked why, Ms. A.D.1 claimed that one of the websites directed that “when somebody gets a sunburn keep yourself hydrated.”

D. The lie about medical treatment

[96] Ms. A.D.1 acknowledged that there was a call to Ms. B.L. later that day. She denied participating in the lie about medical treatment for R.D.. According to Ms. A.D.1, she refused to speak to Ms. B.L. on the phone because “I wasn’t lying to her.” She might have spoken at the beginning of the call, but she then gave the phone to Mr. S.B. and he was the one that told the lie about going to the hospital and waiting for a prescription at the drug store.

E. May 19, 2014: Back to Strathroy

[97] On Ms. A.D.1’s account, she and Mr. S.B. and R.D. were in Sarnia from about 2:30 until 7:30 p.m. They then drove to Watford where they picked up T.D. and drove home.

[98] Between 2:30 and 7:30 p.m., R.D. was in a car seat. Ms. A.D.1 testified that “he was fine.” She did not change R.D.’s diaper during this five hour period. She testified that Mr. S.B. changed R.D. while she was in the store selling jewellery. R.D.’s condition was “still the exact same” and there was no blistering.

[99] Later that evening, Ms. B.L., her husband, and Ms. D.F. dropped C. and B. off at home. Ms. B.L. told Ms. A.D.1 that the girls had had a bath and were fed. Ms. B.L. did not ask about R.D..

[100] According to Ms. A.D.1, she did not see R.D. again before he died. The last time she saw R.D. was Monday night. By the time she came into the house, Mr. S.B. had already put R.D. down for the night. She claimed that she did not see him on Tuesday or Wednesday. She testified that Mr. S.B. was the one caring for R.D. during that period. I will elaborate on that point shortly.

[101] When they got home Ms. A.D.1 noticed that one of her dogs was missing. She texted her sister that someone had stolen her dog.

F. May 20, 2014: Slashed tires and a missing dog

[102] On Tuesday morning, at about 7:30 a.m., Ms. A.D.1 got up to make her daughters’ lunches and saw that her car tires were slashed when she walked T.D. and C. to the bus stop. Ms. A.D.1 testified that she was upset because she needed the car for her kids. That day she was planning on going to Sarnia to take R.D. to his pediatrician, Dr. Singh. There was no appointment with Dr. Singh’s office for that day. Ms. A.D.1 testified that there were times she took the girls to the doctor even if one of them did not have an appointment, and the doctor would usually examine them.

[103] Ms. A.D.1 started making calls about the tire slashing incident, including to the police. She eventually discovered that her dog was in a shelter. She called a cousin whose father worked on cars and he found a place for her to buy tires so she took a cab to go and get them. The cab driver agreed to stop and pick her dog up from the shelter. Once she got back, she texted Mr. S.B. to help her with the tires. She brought the dog into the house and called her uncle to say that she had the tires. Shortly after, she discovered that her wallet was gone. She called a second cab and went to the bank for a new card.

[104] When she arrived home, she heard her name being called. Ms. C.F. told Ms. A.D.1 that she had not done anything to her tires. The conversation then turned to Mr. S.B.. While Ms. A.D.1 was speaking with Ms. C.F., Mr. S.B. began texting her. He then came to the door with the dog and said that he was going to “sic the dog” on them. Mr. S.B. went back into the house, and then T.D. came outside saying: “Dad says you need to come in the house.” T.D. came outside perhaps three times. The third time she reported that R.D. had gotten hurt, at which point Ms. A.D.1 ran into the house.

G. Mr. S.B.’s violent nature

[105] Ms. A.D.1 testified that Mr. S.B. was controlling and violent. She described him as a drug user, thief, and break and enter artist, who was vindictive and cruel. She said that she was not allowed to go anywhere without him. She had to schedule everything around what he wanted.

[106] According to her, Mr. S.B. was violent at least 30 times over the course of the relationship and she related some specific incidents. She claimed that, in February, Mr. S.B. punched her in the face and said that he did it to make her stop talking. Her face was bruised very badly. During a second incident, perhaps at the end of February, he pushed her causing her to trip. Her forehead was cut because she hit the metal frame of the bed. On a third occasion, she said that he “choked me out” in the bedroom. Ms. A.D.1 testified that he said she was never allowed to leave him and that there would be consequences if she did. He then placed his hands around her throat and choked her. During the first week and half of living in Strathroy, he “head-butted” her, causing her to bleed in her mouth. He then left for two days.

[107] Ms. A.D.1 testified that she did not tell anyone about the abuse “because I was in a marriage with domestic violence and I just wanted to hide it.” She testified that she stayed with Mr. S.B. “because of the things he told me, if I left and what would happen to me.” As she put it:

I couldn’t get away from S.B.. He told, the things he told me about me moving to Strathroy and the people that he knew and that I would be watched. All I could think about is if I did anything what would happen to me and then what would happen to my kids.

H. Delegating care of R.D. to Mr. S.B.

[108] Ms. A.D.1 testified that, on the morning of Tuesday May 21, 2014, Mr. S.B. told her that he was going to take care of R.D. and B. and that she was “not to worry about it.” She testified that he said that he wanted to bond with R.D.. He was angry that R.D. preferred to be with Ms. A.D.1 than him. Ms. A.D.1 said that at first “it was hard to allow somebody else to go into my spot because I am mom. However, we were supposed to be a family.” She testified that she agreed to let Mr. S.B. take care of the children. Her evidence included the following passages:

I trusted him. I had no reason not to trust him, so I allowed him to take care of R.D. and to take care of B..

[W]hen I would go to check on [R.D.] he would stop me. He would tell, make up excuses that as to like he just put him down. They were just playing, he fed him, he did this he did that, um, he just laid him down let him sleep. That was basically it, he was following me. Like, I tried to take bottles in there he wouldn’t let me.

Q. [W]hy in the face of everything that you’ve just told us about, why would you trust Mr. S.B.?

A. [T]he reason why I trusted Mr. S.B. is because of the fact that when he stopped me, refrained me, from going into R.D.’s room to checking on R.D., if I attempted to say why, there’s no questioning him. He gets angry like, oh, you don’t trust me. He’s like, I thought he was my son. I thought we were a family. When he starts going like that, I know it’s going to get bad really fast because now he thinks im questioning his actions so I just let it go.

Q. [S]o did you trust what he said or did you not trust what he said?

A. I trusted what he said.

I. Sarnia and the babysitter

[109] Ms. A.D.1 confirmed that on the evening of May 21, 2014, she and Mr. S.B. went to Sarnia to pick up furniture for T.D.. Ms. A.D.1 testified that they only went that evening because it was when Mr. S.B. wanted to go, though Ms. A.D.1’s text messages would indicate that this was consistent with her previous plan.

[110] Ms. A.D.1 arranged for her half-brother, Mr. J.F., to babysit. Mr. J.F. had her cell phone number but Ms. A.D.1 did not think that he had the ability to call her. She did not have Wi-Fi and he required that for service. She testified that the mother of Mr. J.F.’s child lived next door and therefore he could get help if there was an emergency.

[111] Ms. A.D.1 testified that when they returned from Sarnia she was exhausted. They paid Mr. J.F. and he left quickly. She fell asleep on the couch for a time and when she woke up Mr. S.B. was already downstairs. She went down to join him in bed. Ms. A.D.1 testified that she never checked on R.D. that evening because Mr. S.B. said he was going to check on him.

[112] While in Sarnia, Mr. S.B. and Ms. A.D.1 stopped at a Shoppers Drug Mart just after midnight. She did not buy anything for R.D. because “as far as I knew R.D. didn’t need anything.”

[113] When asked about R.D.’s condition that day, Ms. A.D.1 said that she asked Mr. S.B. how R.D. was when she returned from her taxi trips. She said that Mr. S.B. told her that R.D. was doing fine, he was walking and eating, and that you could never tell that an accident had happened on Sunday.

J. Wednesday, May 21, 2014: The day R.D. died

[114] On May 21, 2014, everyone was home due to illness; the kids did not go to school and Ms. A.D.1 testified that she did not see R.D. that morning. As she put it:

Every time I tried to, S.B. stopped me. He took a bottle out of my hand and said he would do it. He’s like, don’t worry about it, take care of the girls, you have your hands full, the girls are sick. Take care of them I’ve got R.D. because we’re bonding. That’s what he kept saying over and over again.

I let him do it because of the fact that at that point in time, I like, I said, I trusted him and we were supposed to be a family. So there was no reason for me to doubt what he was doing that he was taking care of him.

[115] Ms. A.D.1 started a pizza for dinner and then realized that she needed some items from Walmart. She turned on the stove timer and told T.D. that when the beeper went off she should alert Mr. S.B. so that he could take the pizza out.

[116] Ms. A.D.1 testified that when she went to leave for Walmart, Mr. S.B. got into the car, at which time she said “Either you are going or I am going but we can’t both go.” He said fine and went in the house. Ms. A.D.1 denied that both she and Mr. S.B. had planned on going to Walmart. She denied that T.D. came outside and asked one of them to stay.

[117] While in Walmart Ms. Dumont received a text message from Mr. S.B. telling her to come home. She went straight into the house asked what was going on. Mr. S.B. was pacing back and forth. He told her that her son was dead. She went into R.D.’s room and saw him under a sheet. She picked him up and asked Mr. S.B. why he was cold and wet. She asked why there was pizza crust in his bed. She tried to administer CPR to R.D. while she told Mr. S.B. to call 911. After about five minutes Mr. S.B. left to run to his mother’s house.

[118] Ms. A.D.1 testified that R.D. was not wearing anything when she came home. She put a sleeper on his body because it was cold. The ambulance arrived about 10 minutes after she found R.D.. She was pushed outside. One of the officers then came out and said that they could not revive the child.

V. ANALYSIS

[119] The following will examine the relevant legal principles and apply them to the facts of this case. I will begin by outlining the positions of the parties. This will be followed by a review of the elements of the offences. I will then turn to each of the accused, examining whether the Crown has established the essential elements of the respective offences beyond a reasonable doubt.

A. Positions of the parties

[120] The Crown argues that both accused are guilty of failing to provide the necessaries of life, and of criminal negligence causing death.

[121] Ms. A.D.1’s position is that she had a duty of care and that she discharged it by placing R.D. in the care of Mr. S.B. and by keeping informed of R.D.’s condition through what Mr. S.B. told her. She claims that Mr. S.B. told her that R.D. was fine, therefore, she did not breach her duty of care. She asserts that Mr. S.B. is responsible for R.D.’s death and that she is not criminally liable.

[122] Mr. S.B. denies liability for either offence. He asserts that he was not under a legal duty to provide necessaries to R.D.. He was just a boyfriend who lived in the house from time to time. While Mr. S.B. was present when R.D. was burned, he said he immediately turned the baby over to Ms. A.D.1. He insists that it was solely her responsibility to care for the child. Absent a duty of care, he cannot be found guilty of either offence. Mr. S.B. acknowledges that if he did have a duty of care, he breached that duty in a manner that is a marked departure from the conduct of a reasonable and prudent guardian, and, in that instance, he would be guilty of failing to provide the necessaries of life. He argues, however, that he would not be guilty of criminal negligence, even in that instance. Mr. S.B. says that even if he had a duty and breached it, it did not reflect a wanton and reckless disregard for R.D.’s life and it was not a marked and substantial departure from the conduct of a reasonable and prudent guardian.

B. Preliminary Matters: A note about the evidence

[123] During the case for the Crown, I heard from several family members, who had contact with Mr. S.B. and Ms. A.D.1 in the days leading up to R.D.’s death. There is inconsistency. Sometimes persons who witnessed the same events offered very different descriptions.

[124] In this case, there are many factors that might affect reliability of memories, including the subconscious effect of R.D.’s death on those who knew him. I am not a psychologist, and I heard no testimony from such a professional, but based on human experience and common sense, I surmise that R.D.’s death might have influenced perceptions of events when viewed in hindsight.

[125] I cite, as an example, the contrast between the evidence of Ms. B.L. and Ms. D.F.. Both Ms. B.L. and Ms. D.F. testified about the visit on May 18, 2014, each offering starkly different accounts of R.D.’s appearance during the visit on the May long weekend. Counsel for Ms. A.D.1 argued that I should accept Ms. B.L.’s testimony, as Ms. D.F. was confused about various things in her evidence. The Crown argued that I should accept Ms. D.F.’s evidence, because she was more objective. She did not know Ms. A.D.1 and did not have any allegiance to the parties.

[126] I do not believe that either witness was trying to actively mislead the court. They were both doing their best to offer an account of how R.D. behaved during the visit. Yet their accounts cannot be reconciled. How can this be? Is it possible that some witnesses, knowing that R.D. died, recall an exaggerated level of pain and discomfort? Perhaps other witnesses, knowing that R.D. died, feel a sense of guilt over not intervening to save him. For them, it may be subconsciously more palatable to minimize visible signs of distress. I do not know whether these motives and mechanisms were actually at play in this case. The point is that the oral testimony about events was sometimes inconsistent.

[127] Fortunately, some items of evidence have a more objective quality. In this case, the Crown introduced photographs of R.D.’s injuries as they appeared shortly after his death. This evidence is not subject to the vagaries or frailties of human memory. It is a reliable record of what it is and how it was: a depiction of what R.D. looked like after his death. The fact that his injuries looked as they did on the day of his death allows for inferences to be drawn by expert medical professionals about the appearance of his injuries while he was still alive.

[128] Due to their objective quality, the photographs serve as an effective anchor for the fact-finding process. The credibility and reliability of oral testimony can be measured against this backdrop. Similarly, the records of internet activity and text messages on Mr. S.B.’s and Ms. A.D.1’s phones tell us what was communicated and what was searched on those phones in the days leading up to R.D.’s death. There may be questions of interpretation, but there is no dispute that someone typed the words, as recorded, on the phones in question. This too stands as reliable evidence from which certain inferences may be drawn, and against which certain testimony may be assessed.

C. Self-instruction on bad character evidence

[129] During the trial I heard various items of evidence that could be described as “bad character” evidence – evidence that reflected adversely on the character of one or both of the accused. In each instance, the evidence was probative of an issue at trial and the probative value outweighed its prejudicial effect or, in the case of defence evidence, the probative value was not substantially outweighed by its prejudicial effect: see R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at pp. 610-11.

[130] Some of the evidence casts doubt upon the “parenting skills” of Ms. A.D.1 and Mr. S.B.. I use the term parent here in its broadest sense, to encompass Mr. S.B.’s status as a guardian. The evidence tending to establish “bad parenting” included the following:

a) Evidence was led about the unkempt state of the home in which the family lived;

b) Evidence was led about consumption of methamphetamine by Ms. A.D.1 and Mr. S.B.. Evidence of methamphetamine was found in R.D.’s system when he died, but was not a contributing factor to his death;

c) Evidence was led to indicate that CAS was involved with the family. The Crown led this evidence as being relevant to motive. It was said that Ms. A.D.1 did not seek medical attention for R.D. for fear of how the CAS would respond;

d) Evidence was also led about a CAS inquiry into bruises observed on B.’s neck. Significantly, the Crown was not going to lead any evidence about this incident and only did so after counsel for Ms. A.D.1 raised the topic in cross examination of a Crown witness.

[131] This case is not about the parenting skills of Ms. A.D.1 or Mr. S.B.–it is about the response or lack of response to R.D.’s burn injuries. I have been careful not to draw any impermissible inferences from the evidence described above. I have been careful not to apply reasoning based on general propensity. For example, it was hardly good parenting to smoke methamphetamine in the presence of R.D.. I did not use that, or other like evidence, to infer that the accused are bad persons or bad parents, and therefore more likely to have committed the offences charged. The question is not whether they are the “type of people” to commit the offences, the question is whether they did, in fact, commit the offences. This turns on the evidence as it relates to the burn injuries, to both accused’s awareness of the burn injuries, and the steps that were or were not taken in response to those injuries. The essential element is whether their conduct, as it relates to R.D.’s burn injury, together or separately, fell below the minimum standard of care one would expect of a parent or guardian.

[132] A second category of bad character evidence emerged in Ms. A.D.1’s trial testimony. She testified that Mr. S.B. took control of R.D.’s care in the days leading up to his death. She testified that Mr. S.B. prevented her from going in to check on her son. She testified that she did various things – like selling stolen jewellery – because Mr. S.B. told her to. In support of this explanation, Ms. A.D.1 testified that Mr. S.B. was violent, controlling, a drug dealer, a thief, and that he had assaulted her on various occasions. This bad character evidence was admitted by one co-accused against the other. It was a significant component of Ms. A.D.1’s asserted defence. The probative value of the evidence was not substantially outweighed by its prejudicial effect. Therefore, I allowed the evidence to be introduced: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 37–40 and 64; R. v. Pollock, 187 C.C.C. (3d) 213, 2004 16082 at paras. 105-07 and 110 (Ont. C.A.); R. v. Earhart, 2010 ONCA 874 at paras. 76-77, 272 C.C.C. (3d) 475.

[133] For reasons that I will soon offer, I do not find Ms. A.D.1 to be a credible witness. I do not accept what she says about the dynamics of her relationship with Mr. S.B.. Even if I did find Mr. S.B. to be controlling or violent, it would not assist me in answering the question of whether Mr. S.B. had a duty to care for R.D. or whether he breached that duty. This evidence was led on the issue of Ms. A.D.1’s innocence, and does not have any independent value as evidence of Mr. S.B.’s guilt.

D. General principles

1. Failing to provide the necessaries of life

[134] The offence of failing to provide the necessaries of life is codified in s. 215 of the Criminal Code, R.S.C. 1985, c. C-46. For ease of reference it is reproduced below:

215 (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) to provide necessaries of life to their spouse or common-law partner; and

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

(3) Every one who commits an offence under subsection (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(4) For the purpose of proceedings under this section,

(a) [Repealed, 2000, c. 12, s. 93]

(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child;

(c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and

(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.

[135] This offence has been in the Criminal Code since 1892. It reflects the principle that where a person is in the charge of another, the person having charge has a duty to provide necessaries of life. Certain relationships and legal duties are described in s. 215 of the Criminal Code. As noted in R. v. A.D.H., 2013 SCC 28 at para 67, [2013] 2 S.C.R. 269, “[the] essence of the s. 215 offence, then, is that it imposes legal duties arising out of defined relationships.

[136] The animating rationale was summarized by the Ontario Court of Appeal in R. v. Curtis, 38 O.R. (3d) 135 at p. 140-41, 1998 1999 (C.A.):

Section 215(1) imposes a duty on specified caregivers to provide the basic necessities of life to those who, for reasons such as age or detention, are dependent upon them. Section 215(2) criminalizes the neglect of that duty which is so egregious that it fails to meet a basic minimum level of care, resulting in the endangering of life or health. I agree with the Crown that the purpose of this provision is to protect those who are vulnerable and to ensure that they are provided with, at a minimum, the essential necessaries to sustain human life by those who are responsible for them. It is beyond debate that such an objective is of pressing and substantial concern.

[137] As with other penal negligence offences, s. 215 is designed to prescribe a uniform, minimum standard of care. The “necessaries of life” include medical attention: see R. v. S.J., 2015 ONCA 97, 124 O.R. (3d) 595. The standard is not one of perfection. A parent or guardian is not required to run to a doctor or hospital whenever illness or the prospect of illness arises. As Hill J. explained in R. v. Pertab, 27 C.R. (6th) 126, 2004 47791 at paras. 34-35 (Ont. S.C.):

[34] Generally, an omission in duty is criminalized only if a marked departure exists from the standard or conduct of a reasonably prudent parent in the circumstances where it is objectively foreseeable that the failure to seek medical attention would lead to a risk of danger to life or a risk of permanent endangerment of the child’s health. An error in judgment or a failing on the part of a parent in accessing medical attention for a person in a position of dependency not amounting to a marked departure from the relevant standard imposed by the circumstances does not attract liability. Accordingly, a range of discretion is accorded a parent respecting discharge of the duty to provide a child medical attention unreviewable by the criminal law but constrained by the minimum threshold of the marked departure standard

[35] What is to be included in the necessaries of life is to be determined upon the circumstances of each case and the question whether there has been criminal neglect to supply them also depends on the circumstances: R. v. Lewis, supra at 266; R. v. Barry, supra at para. 36. We accept that parents and those with similar legal duties are not required by law to rush a child or an elderly dependant under their charge to a doctor, clinic, or hospital emergency ward whenever sickness or the prospect of injury arises. [Emphasis in original.]

[138] The test under s. 215 is an objective one and the question is whether the actions of the accused were a “marked departure from the conduct of a reasonably prudent parent in similar circumstances” and also whether it was “objectively foreseeable that the failure to provide necessaries would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child.”: see R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143, 1993 64.

[139] The test does not take into account personal characteristics of the accused, such as age, education level, or other factors falling short of incapacity. By the same token, an accused is not held to a higher standard of conduct if they have received specialized training. Evidence was led to indicate that Ms. A.D.1 had been trained to work as a personal support worker (PSW). This does not affect the liability equation. The standard of care is that of a reasonable and prudent parent, not a reasonable and prudent PSW. Ms. A.D.1’s training is irrelevant to the assessment of criminal liability in this case.

[140] Section 215 provides for the defence of lawful excuse, “the proof of which lies on [the accused]”. The defence of lawful excuse in s. 215(2) does not encompass common law excuses such as duress: see R. v. Holmes, [1988] 1 S.C.R. 914 at p. 947, 1988 84

[141] The reverse onus has been declared unconstitutional (see Curtis, at p. 144). While the words still appear in the Criminal Code, they must not be applied. There is no onus on the accused to prove the existence of a lawful excuse. The accused need only raise a reasonable doubt about the existence of a lawful excuse. The Crown can only convict if it has disproved the lawful excuse beyond a reasonable doubt.

2. Criminal negligence causing death

[142] The offence of criminal negligence is codified in s. 219 of the Criminal Code as follows:

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law. [Emphasis in original.]

[143] Like s. 215, s. 219 of the Criminal Code operates by setting a minimum objective standard. In R. v. Creighton, [1993] 3 S.C.R. 3, 1993 61, the Supreme Court of Canada upheld the constitutional validity of the objective standard for liability. The Court recognized that factors such as lack of education and psychological predispositions might be relevant to sentencing, but would “serve as no excuse for criminal conduct” provided there was sufficient mental capacity to appreciate the risk. McLachlin J. (as she then was) stated (at p. 71):

This is not to say that the question of guilt is determined in a factual vacuum. While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care. As McIntyre J. pointed out in R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. The question is what the reasonably prudent person would have done in all the circumstances. Thus a welder who lights a torch causing an explosion may be excused if he has made an enquiry and been given advice upon which he was reasonably entitled to rely, that there was no explosive gas in the area. The necessity of taking into account all of the circumstances in applying the objective test in offences of penal negligence was affirmed in R. v. Hundal, supra.

The matter may be looked at in this way. The legal standard of care is always the same—what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.

[144] Criminal negligence is a more serious offence than failing to provide necessaries of life. Section 215 of the Criminal Code requires evidence of a marked departure from the standard. Section 219 requires evidence of a marked and substantial departure. It is the marked and substantial departure that reflects a wanton and reckless disregard for the life or safety of another.

[145] The analytical distinction between s. 215 and s. 222 was helpfully explained by Fish J. in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215:

[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.). [Emphasis in original.]

[37] I agree with McIntyre J. that where criminal negligence is “piggy-backed” onto an alleged failure to provide the necessaries of life — as it was explicitly in Tutton and, in effect, here as well — the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. If so, the jury would be entitled to find that the accused committed an offence under s. 215(2)(a)(ii). The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury would be bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.

3. Summary of analytical steps

[146] The above principles dictate that I ask the following questions in relation to each of the accused persons before this court:

1. Was the accused under a legal duty to provide the necessaries of life to R.D.?;

2. Was there a failure to provide R.D. the necessaries of life – in this case, medical treatment – that endangered his life?;

3. If so, did this failure represent a marked departure from the standard of care of a reasonably prudent parent such that the accused is guilty of an offence under s. 215 of the Criminal Code?;

4. If so, did this failure represent a marked and substantial departure from the conduct of a reasonably prudent parent such that the accused demonstrated a wanton and reckless disregard for R.D.’s life?

E. Application to this case

1. A.D.1

a) Credibility of A.D.1

[147] Ms. A.D.1, like Mr. S.B., is presumed to be innocent. That presumption is only displaced if and when the Crown has proved an offence beyond a reasonable doubt. The three step chronology in W.(D.) is designed to reflect the presumption of innocence and the stringent onus that rests upon the Crown. It demands that the judge not compare Crown evidence with defence evidence and decide which he or she prefers. W.(D.) reinforces the principle that the accused is not required to prove anything at their trial. The Crown must prove all essential elements beyond a reasonable doubt. The accused need only raise a reasonable doubt in order to secure an acquittal.

[148] Because Ms. A.D.1 gave evidence at trial, I must apply the W.(D.) analysis, set out at p. 758, to her testimony. I must also apply it to any other potentially exculpatory evidence.

If I believe evidence that exculpates Ms. A.D.1, I must acquit.

Even if I do not believe evidence that exculpates Ms. A.D.1, if it leaves me with a reasonable doubt on any essential element of an offence, I must acquit.

Even if I do not have a reasonable doubt based on the exculpatory evidence, I can only convict if, on the whole of the evidence that I do believe, that I am satisfied that the Crown has proved the offence beyond a reasonable doubt.

[149] I have carefully considered Ms. A.D.1’s testimony against the backdrop of the whole of the evidence at trial. I do not accept her evidence as true, nor does it raise a reasonable doubt as to her guilt. I found aspects of Ms. A.D.1’s evidence to be improbable and implausible. Her answers seemed to be based more on self-interest than honest recollection. I have considered the following factors in my assessment of credibility.

[150] Ms. A.D.1’s evidence was inconsistent with the testimony of many different witnesses at the trial. She insisted that Ms. B.L. never told her to take R.D. for medical attention, contrary to the testimony of Ms. B.L. and Ms. D.F.. She insisted that Ms. C.F. never offered to loan Ms. A.D.1 her car, contrary to Ms. C.F.’s testimony. She insisted that a photograph of her ingesting methamphetamine was taken the last week of April 2014, contrary to expert evidence that it was taken in May 2014. She testified that she did not see R.D. on the night of Monday, May 19, 2014, contrary to T.D.’s evidence that she took R.D. out of his crib that night and put cream on the burns. Ms. A.D.1 testified that she took R.D.’s t-shirt off while in the bath at Ms. B.L.’s house, contrary to the testimony of both Ms. B.L. and Ms. D.F.. These are but a few of many examples. Ms. A.D.1 was confronted with these contradictions and insisted that each of the other witnesses was wrong or mistaken.

[151] These contradictions do not, standing alone, compel rejection of Ms. A.D.1’s evidence. She is not required to prove anything at trial and credibility does not depend on how many witnesses say something. However, the inconsistencies between her evidence and that of so many other witnesses is relevant to credibility.

[152] Ms. A.D.1 took great pains to distance herself from anything remotely incriminating, even when her denials became illogical. This is best illustrated by reference to the evidence of drug use. A.D.1 testified that she used methamphetamine during the last week of April 2014, before she and Mr. S.B. moved to Strathroy. The Crown had earlier adduced a photograph of Ms. A.D.1 in which she was seen smoking the drug. Ms. A.D.1 testified that she consumed the drug to please Mr. S.B., who wanted her to experience something with him for the first time. She insisted that she had nothing more to do with drugs after that time.

[153] The Crown challenged this assertion in cross-examination, confronting Ms. A.D.1 with text messages from her phone. These messages, which were sent in May 2014, seemed to refer to the purchase and consumption of drugs:

a) Mr. S.B. sent messages to Ms. A.D.1 referring to “energy” and “pie”, slang terms for crystal methamphetamine;

b) Ms. A.D.1 received a text from a man listed as “Joe” saying “I have bitch you looking” to which she responded: “k half”;

c) Ms. A.D.1 sent a text asking “How much a ball?”

d) Ms. A.D.1’s sister texted Ms. A.D.1: “I got through to randy. How many do you want?” to which Ms. A.D.1 responded: “four”;

e) Ms. A.D.1 texted “Tori: How much for a half B?” to which Tori responded: “I’ll do it for $140 for you If you want”.

[154] Initially Ms. A.D.1 claimed not to know what these text messages were about. She could not explain why the texts appeared on her phone. Then Ms. A.D.1 changed course, claiming that Mr. S.B. often used her phone. She testified that he must have sent the drug-related messages. This explanation was discredited when the Crown pointed out that the messages referred to Mr. S.B. in the third person. One text read: “so all good to go pick up S.B.’s clothes then heading to your place.” Another one read: “he ripped S.B. off for $250.” It was put to Ms. A.D.1 that the texts could not have been sent by S.B. because they referred to “S.B..” She maintained her account, saying that Mr. S.B. referred to himself in the third person when he used her phone. The Crown pointed out that Mr. S.B. never did this in the texts he sent from his own phone, and Ms. A.D.1 replied: “that’s because that’s his phone.”

[155] The Crown put another text to Ms. A.D.1 in cross-examination. This text, sent on May 6, 2014 from Ms. A.D.1 to Mr. S.B. read: “I think once the kids are home, I’m a do a bowl. I’m starting to get tired.” Ms. A.D.1 could not claim that this text was written by Mr. S.B. because it was sent to him. Ms. A.D.1 insisted that she did not mean a bowl of methamphetamine, but she could not identify what else the word bowl might refer to.

[156] To be clear, Ms. A.D.1’s use or non-use of drugs has no bearing on the issues in this case. I have used these examples not because they involve drug use, but because they expose frailties in Ms. A.D.1’s testimony. They illustrate that when confronted with contradictory evidence, Ms. A.D.1 was either without an explanation or offered a story that did not make sense. It is not impossible that Mr. S.B. used Ms. A.D.1’s phone, rather than his own, to arrange for drugs but it is unlikely. He was not shy about using his own phone to send text messages to his associates. What is more unlikely is that Mr. S.B. sent texts in which he referred to himself in the third person, as “S.B..” I do not accept Ms. A.D.1’s explanations for the texts. I find that, rather than being truthful, Ms. A.D.1 was trying to distance herself from evidence that might portray her in an unflattering light. Her “on the spot” explanation did not withstand scrutiny and led to absurdity.

[157] Similarly, and perhaps more importantly, Ms. A.D.1’s testimony about the appearance of R.D.’s injury cannot withstand scrutiny. Her evidence on this point cannot be reconciled with the images depicted in the photographs of R.D. after his death. It cannot be reconciled with the expert opinions offered by medical professionals at the trial. It does not square with Ms. A.D.1’s own words and actions after the injury.

[158] Ms. A.D.1 testified that the burn appeared much like a sunburn – pink skin on the tops of R.D.’s legs and on his arm. She testified that she heard a momentary yelp of pain at the time of the injury but detected no other signs of pain or discomfort. As she put it, he was “fine.” Just moments after the coffee spilled on R.D., he was described by Ms. A.D.1 to be giggling, drinking from his bottle, and reaching out for her to hold him. Ms. A.D.1 denied that there was any blistering. She testified that she checked R.D. frequently and that she saw no change in his condition. On her evidence, there was little cause for alarm.

[159] But other evidence would indicate that Ms. A.D.1 was indeed alarmed. In her texts to Daniel Petru she spoke of an “emergency” that was “bad”, prompting her to “drop everythying and run”. She was still dealing with the emergency at 1:15 p.m. a few hours after the burn was inflicted. R.D. was not as fine as Ms. A.D.1 portrayed in her testimony. Similarly, Ms. A.D.1’s internet searches were for injuries more severe than pink skin. She looked at websites about scalding injuries, and second degree burns.

[160] The testimony of Dr. Scilley and Dr. Schkrum casts further doubt on Ms. A.D.1’s evidence. I am not required to accept the testimony of an expert and I should treat experts as I do other witnesses. Acknowledging that, I accept the testimony of Dr. Scilley, who based his opinions on photographs of R.D.’s injuries, and the testimony of Dr. Schkrum, who performed the post-mortem examination. Dr. Scilley is a highly qualified physician with considerable experience in the diagnosis and treatment of burn injuries. Dr. Schkrum is an experienced pathologist. Both offered evidence about the likely manifestation and progression of the burn.

[161] Dr. Scilley testified that R.D. would have blistered soon after the scalding. He observed signs of ruptured blisters in the photograph as the outer layer of skin was missing in several places. Dr. Schkrum confirmed the gravity of the injuries. He found that 7 of 9 samples revealed third degree or full thickness burns. This means that both layers of skin had been burned away. The burns covered 25 percent of R.D.’s body.

[162] Counsel for Ms. A.D.1 argued that Dr. Scilley’s testimony should be given less weight for three reasons: 1) he based his opinion on photographs; 2) he viewed them on a computer rather than in printed hard copy, and 3) because there was some uncertainty about which photographs he viewed.

[163] It is true that Dr. Scilley did not have the opportunity to examine R.D. in person. But I find that was able to offer valid opinions based on the photographs. The photographs were clear and depicted the burns in some detail. The difference between the photographs as they appear on a computer screen, and as they appear in hard copy is of no moment in this case. I saw the photographs in both situations. They were displayed on a computer screen in the courtroom, and they were filed as hard copy exhibits. Any difference between the images was subtle at best. Finally, while Dr. Scilley could not specify precisely which photographs he viewed, he was able to say that they were similar if not identical to the photos entered into evidence. I am satisfied that Dr. Scilley’s opinions, based on his years of experience identifying and treating burn injuries, are entitled to considerable weight.

[164] Dr. Scilley’s testimony about the nature and extent of the burn injury was largely confirmed by Dr. Schkrum, who saw R.D.’s body and did not have to rely on photographs in formulating his opinions.

[165] Neither Dr. Scilley nor Dr. Schkrum were asked to comment on Ms. A.D.1’s anticipated testimony. They were not asked about the likelihood that the injuries seen at the time of death would have manifested as non-blistering pink skin. This question ought clearly to have been asked by counsel for Ms. A.D.1 in accordance with the rule in Browne v. Dunn. I do not draw any adverse inference against Ms. A.D.1 on this basis but I do find that the testimony given by the experts renders Ms. A.D.1’s description of the burn to be implausible, if not impossible. The experts observed burns to 25 (or 18) percent of R.D.’s body, many of them full thickness burns, in a scald pattern. The experts testified that blistering would have occurred shortly after contact with the hot liquid. The picture painted by the experts bears no conceivable resemblance to that offered by Ms. A.D.1 in her testimony.

[166] The photographs themselves stand as powerful contradiction of Ms. A.D.1’s trial testimony. They depict serious, almost grotesque injuries to a substantial surface area of R.D.’s body. Even allowing for some progression of the injury over time - the experts testified that the burn would progress for 48 hours, and then stabilize – it is impossible to believe that the burn ever manifested as merely pink skin. Unless there was an intervening event, involving another catastrophic burn, (which there is no evidence to support), the photographs belie the suggestion that the injury was as innocuous as described by Ms. A.D.1.

[167] In this regard, I can do no better than to quote from the decision of Molloy J. in R. v. Melissa Alexander, 2011 ONSC 980, 2011 CarswellOnt 835:

[93] In the final analysis, although I have devoted considerable ink to analyzing the facts and law relating to this matter, it is in truth a simple case. The truth of it lies in the photographs of Miguel’s body. It has been said that one picture is worth a thousand words. It is difficult to convey in words the state of Miguel Fernandes as shown in the photographs taken after his death. A thousand words cannot describe the tragedy of it. However, any reasonable person looking at a photograph of his burns would know instantly that these injuries required immediate medical attention. And any person, upon being told that his mother did not see fit to get help for this little boy, would be horrified. That is a reflection of the community standard, and Ms. Alexander’s conduct is [a] marked departure from it.

[168] Other evidence contradicts that of Ms. A.D.1. T.D., and Ms. A.D.1’s half-brother, J.F. confirmed that the burns appeared very serious. J.F. babysat R.D. the night before he died. He identified R.D.’s injuries as third degree burns, based on his experience with a similar injury. Mr. J.F. did not recall changing R.D.’s diaper, but T.D. testified that he did and that she went into the room with him. T.D. testified that when Mr. J.F. lifted R.D.’s shirt she saw the injury. According to T.D. it was “bad” and she left the room because it was “gross”.

[169] T.D.’s description of the injury is a compelling item of evidence.

[170] T.D. was 13 years of age when she testified. She was not always a reliable historian. I am mindful of the direction of the Supreme Court of Canada to approach children’s evidence differently than that of adults. Children may not be as precise about time frame and other peripheral details. It was undoubtedly a stressful experience for T.D. to testify in this trial. She was testifying against her mother and the man who lived with the family for a time. She had not seen her mother for three years, having been placed in care. She was being asked questions about the death of her baby brother. T.D. testified in a room outside of the courtroom, with the benefit of a closed circuit television camera. She also had the assistance of a support dog. She was a stoic witness, though she had a few emotional moments.

[171] T.D. was not always a reliable historian. For example, she was asked about the extent to which Mr. S.B. cared for her and her siblings. She told Mr. Cudmore, counsel for Mr. S.B., that Mr. S.B. did not care for the children. Just a short time later, she told Mr. Marley, counsel for Ms. A.D.1, that Mr. S.B. did care for the children. She testified at one point that she stayed home from school on May 20^th, and that she didn’t go to school very much. Later, it came to light that she had, in fact, gone to school that day, and that she saw the slashed tires on Ms. A.D.1’s car as she was walking to catch the bus. T.D. appeared very suggestible. More often than not, she agreed with suggestions put to her during cross-examination, even when those suggestions contradicted her earlier testimony.

[172] T.D.’s description of R.D.’s burn was not the product of a suggestion. She was responding to a question asked of her in-chief. She used her own words to describe what she saw in R.D.’s room that night. She used a child-like term, calling the injuries “gross”. She recalled having to leave the room when she saw the burn. It makes sense that this might be the reaction of a child when presented with the type of injuries depicted in the photographs. T.D.’s other descriptions of R.D. were consistent with the medical evidence. She described R.D. as a very sick little boy, who had red eyes, a listless demeanour, and had trouble holding his bottle. She testified that R.D. was hurt and crying, and that he got quieter over time.

[173] Counsel for Ms. A.D.1 argued that Ms. A.D.1’s evidence was confirmed by B.L.. It is said that Ms. B.L.’s testimony about seeing R.D. during the visit of May 18-19, 2014 supports Ms. A.D.1’s credibility. . Ms. B.L. saw the backs of R.D.’s legs and his feet. During cross-examination, she acknowledged that she saw the bottom of his buttocks. She testified that the skin colour all looked the same. She maintained that she did not see all of the baby’s bottom and that if she had she would have gone to the hospital. She did not see anything that Sunday that suggested that R.D. was scalded, but it is apparent that she did not see very much of R.D.’s body. She did not ask to see the burn because Ms. A.D.1 told her that R.D. was okay.

[174] Ms. B.L. did not see much of R.D.’s body. This is because Ms. A.D.1 took steps to conceal the burns while she was visiting at Ms. B.L.’s home. Why else would she clothe R.D. in a T-shirt for purposes of a bath? Ms. D.F. recalled that the t-shirt went to R.D.’s knees. Furthermore, R.D. was covered with a sheet when he was lying on Ms. A.D.1’s chest. Ms. A.D.1 removed R.D.’s diaper and gave it to Ms. B.L. to dispose of, but Ms. B.L. testified that it was wet and she just threw it into the garbage.

[175] I have considered Ms. B.L.’s testimony, and the extent to which it might support the evidence of Ms. A.D.1. Ultimately, I have concluded that her observations are not of great assistance to the court. Over three years have passed since the overnight visit, and the subject matter of the trial was an emotional one for Ms. B.L. involving as it does the death of her great grandson and the trial of her grandaughter. Much of her evidence was contradicted by Ms. D.F. (though Ms. D.F. did not see the burn either) To the extent that Ms. B.L. could be seen as supporting Ms. A.D.1’s testimony, any such confirmation is vastly outweighed by the force of the contradictory evidence.

[176] The final point I will make about Ms. A.D.1’s credibility is that her testimony was internally inconsistent. She testified that she did not check of R.D. because Mr. S.B. would not allow her to, and she was afraid of him. She also testified that she did not check on R.D. because Mr. S.B. was caring for him and she trusted him.

[177] Ms. A.D.1 told the court that she did not see R.D. at all on the two days before his death. Ms. A.D.1 testified that the last time she saw R.D. was the night of Monday May 19, 2014. She did not see him again until she saw his body on Wednesday night. Ms. A.D.1 testified that she delegated the care of R.D. to Mr. S.B. because he wanted to bond with R.D..

[178] It is not clear that Ms. A.D.1’s evidence, even if accepted, would offer a lawful excuse or other valid defence. Ms. A.D.1 says that she agreed to have no contact with her 20 month old son, who had been scalded by hot coffee, in order to appease her boyfriend Mr. S.B.. She described Mr. S.B. as a violent, erratic, drug dealing thief, with no experience in caring for young children, and who was responsible for the accident that caused the injury in the first place. Had Ms. Dumont turned the care of R.D. over to Mr. S.B., this wholesale abdication of her parenting responsibilities might itself reflect a marked and substantial departure from the conduct of a reasonable parent. I need not decide that issue because I do not accept that Ms. A.D.1 delegated the care of R.D. to Mr. S.B.. It makes no sense that she would do so, given her allegations about Mr. S.B.’s abusive and unstable nature.

[179] Ms. A.D.1 testified that she did what Mr. S.B. told her to, for fear of what would happen if she did not do so. She alleged various incidents of violence. She testified that she did not check on R.D. because Mr. S.B. prevented her from doing so. Yet, the evidence established that, from time to time, Ms. A.D.1 kicked Mr. S.B. out of the house. She was capable of defying his wishes and did so. On May 20, 2014, Ms. S.B. implored her to come into the house instead of speaking to Ms. C.F.. She ignored Mr. S.B.’s demands until he sent T.D. out to say that R.D. had been hurt.

[180] The videos of Mr. A.D.1 and Mr. S.B. while they were in the police cells in Strathroy are instructive. The dynamic depicted in the video stands in stark contrast to that suggested by Ms. A.D.1. Ms. A.D.1 is seen as assertive and aggressive. She is seen to alternately mock, ignore and torment Mr. S.B.. She is seen to calmly eat a hamburger while laughing at him and using hand gestures to belittle him. She did not present as someone who was afraid of her partner, or in a submissive role. By way of contrast, Mr. S.B. appeared meek and frightened. He cried and asked for his mother. He was sometimes loud, yelling and pleading but I saw his demeanour as that of a desperate and pleading man, in a state of psychological anguish, rather than an aggressive and domineering partner.

[181] The parties knew that they were being recorded –there were signs outside of the cells. But, as time wore on, it seemed as though the camera captured them in an unguarded state. I acknowledge that demeanour can be misleading and have not placed undue emphasis on it in the deliberation process.

[182] In sum, I do not accept that believe that events unfolded in the way Ms. A.D.1 described. I do not believe that she stayed away from R.D. for the last two days of his life, or that she believed that he was fine during this period. I find that this, like other aspects of her evidence, was an attempt by her to twist the facts to her benefit. In this instance, the facts, as twisted, cannot logically exist. It is not logical to suggest that feared Ms. A.D.1 and that he kept her out of R.D.’s room through intimidation, while, at the same time, she trusted him to care for the child and report on his condition. Neither assertion is credible on its own. Taken together, they exceed the bounds of common sense.

b) Findings of guilt

[183] The Crown has proved beyond a reasonable doubt that Ms. A.D.1’s conduct amounted to a marked and substantial departure from the standard of care of a reasonable and prudent parent. The failure to seek medical attention for R.D.’s injuries reflected a wanton and reckless disregard for the life and safety of R.D..

[184] I find, as a fact, that the injuries were severe from the outset, that they represented a “scalding”, consistent with Ms. A.D.1’s internet searches, and that Ms. A.D.1 was aware of the gravity of the injuries. I find that, despite that awareness, she failed to act to save her son’s life.

[185] No steps were taken to obtain medical care for R.D.. Ms. A.D.1 may have applied cream of some kind to the burn – perhaps Polysporin, perhaps aloe vera, and may have fed R.D. some sports drinks – but otherwise neglected the child’s medical needs. The cream and liquids had no effect on the injury. R.D. was never taken to see Dr. Singh. He was not taken to see any other health professional. While the Grand Bend clinic was closed on the long holiday weekend, several witnesses testified that the Strathroy hospital was within walking distance of the house at P[…] Street.

[186] Ms. A.D.1 actively sought to conceal the injuries from others who might appreciate the seriousness of the situation. She covered R.D. with a t-shirt and later with a sheet while at Ms. B.L.’s home. I find that Ms. B.L. told Ms. A.D.1 more than once that she should take R.D. for medical care. Ms. B.L. did not see the burns, but understood that burns suffered by a toddler could well be serious.

[187] I find that Ms. A.D.1 was a full and knowing participant in the lie told to Ms. B.L. on May 19, 2014. She and Mr. S.B. jointly concocted the story about taking R.D. for medical care and filling a prescription at the drugstore. They told the lie in order to appease Ms. B.L. and to stop her from making further inquiries about R.D.’s well-being. The lie reflects a consciousness that R.D. really did need medical treatment. .

[188] Ms. A.D.1 had many opportunities to ask for help for R.D.. She came into contact with many individuals the day before R.D. died, including the police. Ms. A.D.1 was propelled into action when someone slashed her tires and her dog went missing. She told many people about what took place and took steps to rectify the situation. Yet, as she was tending to her dog and her tires, R.D. lay in the house dying. She told no one that she had an injured child or that she required assistance with his care.

[189] The evidence does not disclose any lawful excuse for Ms. A.D.1’s conduct. I have already rejected her evidence that Mr. S.B. prevented her attending to her son. Even if this were the case, it would not absolve Ms. A.D.1 of criminal liability. The defence of duress is subject to several strict requirements, none of which were established by the evidence in this case. Similarly, I do not accept that Ms. A.D.1 left the care of R.D. to Mr. S.B. because she trusted him, but, on the evidence in this case, that too would fall far short of a reasonable or lawful excuse for not attending to his injuries.

[190] I find that the failure to obtain medical care reflected a marked and substantial departure from the conduct of a reasonable parent. It is difficult to understand how or why Ms. A.D.1 could so callously disregard her son’s well-being. There may have been concern that the CAS would become further involved with the family if they learned of the burn. There may have been concern that the authorities would come to know that Mr. S.B. was living in the house and reduce financial aid. We may never understand why this tragedy happened, but that does not alter the result. Motive is not required to be proved by the Crown. Whatever the motive at play, it is clear on the evidence that Ms. A.D.1 failed to meet the minimum standard of care expected of a parent of a young child. Quoting again from Molloy J. in Alexander:

[91] The Criminal Code imposes a duty on parents to provide the necessaries of life for their children. This is a duty, not an option, and it supersedes self-interest. I am fully confident that if Melissa Alexander sustained third degree burns to 40% of her own body, she would not have contented herself with some Vaseline and absorbent cotton. She would have gotten herself to a hospital, and quickly. Her son deserved no less. No doubt Ms. Alexander had her reasons for lying to everyone about how her son was injured, and no doubt she had her reasons for not taking him to a doctor. But whatever those reasons were, they had nothing to do with what was best for her child.

2. S.B.

[191] I will now turn to the case against S.B.. Mr. S.B. did not testify. Nonetheless, I must apply the W.(D.) analysis to any evidence that could serve to exculpate Mr. S.B. on an essential element of the offence. If I accept such evidence, I must find Mr. S.B. not guilty. Even if I do not accept the evidence, if it raises a reasonable doubt as to guilt, I must find Mr. S.B. not guilty. Even if the exculpatory evidence does not raise a reasonable doubt, I can only find Mr. S.B. guilty if, on the whole of the evidence, the Crown has proved the essential elements of the offence beyond a reasonable doubt.

[192] As noted earlier, Mr. S.B.’s central defence is that he did not have a legal duty of care in relation to R.D.. Absent a legal duty, his failure to act cannot ground criminal liability under s. 215 or s. 219 of the Criminal Code. I will turn to that question now.

a) Did Mr. S.B. have a legal duty?

[193] Mr. S.B.’s position is that he was not in a parental role in relation to R.D.. He was just Ms. A.D.1’s boyfriend. The relationship was far from stable with interruptions from time to time. He lived in the house but did undertake child care responsibilities. He did not contribute to the family financially. He did not discipline the children. It is said that, after the burn incident, he turned the care of R.D. over to Ms. A.D.1, where it belonged. Having done that, he no longer had a legal responsibility for the child.

[194] In support of this position, Mr. Cudmore relied on the case of Chartier v. Chartier, 1999 707 (SCC), [1999] 1 S.C.R. 242. The issue in Chartier was the interpretation of the term “child of the marriage” in the Divorce Act, R.S.O. 1985, c. 3 (2nd Supp.). This, in turn, required

consideration of what it means for someone to stand in the place of a parent. Bastarache J. offered the following test:

39 Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. [Emphasis added.]

[195] Mr. Cudmore argues that I should apply the factors from Chartier in determining whether Mr. S.B. had a legal duty to care for R.D.. On this analysis, he says, Mr. S.B. did not have a duty to R.D..

[196] I am not persuaded that the test in Chartier has any application to this case. Context is essential. Chartier was concerned with the rights and obligations of parents, and persons standing in the role of parents, in the context of family law issues. A finding that someone is a parent under the Divorce Act carries with it significant rights and obligations. As it was put in Chartier:

Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.

[197] The context in this case is very different. We are not concerned with the duty to rear a child, or support the rearing of a child, to an age of maturity. We are not concerned with the complexities of the parenting relationship and all that it entails. The question here is whether Mr. S.B. had a duty to provide the most rudimentary essentials necessary to sustain life, in circumstances where R.D. could not provide them for himself. Mr. S.B. may not have qualified to apply for custody of R.D. and he may never have been ordered to pay child support. But that cannot be the test under s. 215. Were it otherwise, the legislative objectives underlying s. 215 – protection of the vulnerable and enforcement of a minimum level of care - would be substantially undermined. Persons may be duty bound to provide a minimum standard of care, even if they are not obliged to assume a full parenting role.

[198] This is not to say that anyone in contact with a child has a legal duty of care. Mr. S.B. is charged as a “guardian”. That term is defined in s. 214 of the Code as including “a person who has in law or in fact the custody or control of a child” [emphasis added]. Non-parental care-givers have in the past been found to be guardians under s. 215 of the Code. In R. v. Sosa, 2016 ONSC 122, 26 C.R. (7th) 19, a babysitter qualified as a guardian under s. 215(1)(a), though she was not found guilty of failing to provide the necessaries of life. Similarly, in R. v. Hambleton, 2006 ABQB 876, 2006 CarswellAlta 1632, the accused was the common-law partner of the victim’s mother. In finding the accused guilty under s. 215, the Court stated, at para. 47 that: “[Mr.] Hambleton was the guardian of Jessica during the times Jessica’s mother Christine, left Jessica in Mr. Hambleton’s care while she worked outside the home”.

[199] In this case, several items of evidence, taken together, compel the conclusion that Mr. S.B. was a guardian of R.D. for purposes of s. 215(1)(a) of the Code:

a) Mr. S.B. lived with Ms. A.D.1 and her children. He began living with the family in Sarnia and he moved with them to Strathroy. Mr. S.B. shared a bedroom with Ms. A.D.1 in the basement of the Strathroy home. He had a bag packed and left from time to time, but he always returned to the family unit.

b) Ms. A.D.1 did not tell social services that Mr. S.B. was living in the house, but disclosure of his presence would have compromised both parties’ financial and housing status.

c) R.D. called Mr. S.B. “dad”, as did T.D. (though she also called him “S.B.”). The weight of this particular factor is reduced, given T.D.’s evidence that the children referred to all of Ms. A.D.1’s boyfriends as “dad”.

d) Mr. S.B. cared for R.D., as did Ms. A.D.1 and T.D.. He changed R.D.’s diapers and fed R.D. bottles. He was the primary caregiver for R.D. when Ms. A.D.1 was not at home.

e) When Laura Carter arrived the first time at the house, she observed Mr. S.B. carrying R.D. in a snuggly, carrying groceries.

f) Mr. S.B. was authorized to pick the children up from school. The fact that he needed authorization does not rebut his guardianship; it simply reflects his status as a non-parent.

g) On the evening of May 21^st, 2014 when T.D. asked that one of the adults stay at home in case R.D. needed a diaper change, it was Mr. S.B. who left the vehicle and came back into the house.

h) Mr. S.B. kept photographs of R.D. on his phone.

i) On May 12, 2014, he sent a text message to “Jeff” saying “only thing I got going for me is a beautiful girl and 4 kids I love as my own”.

j) While in the cells in Strathroy, Mr. S.B. referred to Ms. A.D.1 as his wife and R.D. as his son “we are a family – you are my wife, my son”.

k) After R.D. died, Mr. S.B. told his father: “My son is dead”.

[200] Mr. S.B. voluntarily undertook child care responsibilities in relation to R.D.. Mr. S.B.’s statements would indicate that he perceived R.D. to be like a son to him, and that he perceived himself to be part of Ms. A.D.1’s family. Mr. S.B. was a guardian of R.D. before the burn injury, significantly, he remained in that role at the time of the injury and the days following.

[201] The case before the court does not require an either/or decision. This is not a case in which the guilt of one accused forecloses the guilt of the other. It is open to the court, in fact and in law, to find that both accused had separate and co-existing duties toward R.D.. I find this to be the case.

b) Findings of guilt

[202] I find that Mr. S.B. was aware of the gravity of R.D.’s injuries. He was present when R.D. was burned. He was present to see the progression of the injury. He was the lone adult with R.D. on at least two occasions the day before the child died, while Ms. A.D.1 attended to tires and other errands. He had to have appreciated the condition of the child, yet he chose not to act. If anything, he was complicit in the decision not to obtain medical treatment. This is best evidenced by the lie he told to Ms. B.L.. If there had been any intention to take R.D. to a doctor, there would have been no reason to lie about having done so.

[203] In short, Mr. S.B. was a care-giver. He was in a position to see that the child required medical treatment, he was in a position to take steps to get that medical treatment, he did nothing to obtain that medical treatment; and he lied about getting medical treatment. He had a duty to act, and his failure to act was a marked and substantial departure from the conduct of a reasonable person confronted with R.D.’s situation.

[204] It was acknowledged on behalf of Mr S.B. that, if he had a duty of care, it had been breached for purposes of s. 215 of the Code, but not s. 219 of the Code. For the reasons I have already expressed in connection with Ms. A.D.1, I find that the conduct of Mr. S.B. not only reflected a marked departure from the conduct of a reasonable person. It was a marked and substantial departure capable of grounding liability in criminal negligence causing death.

VI CONCLUSION

[205] Having considered the whole of the evidence, I am satisfied beyond a reasonable doubt that both accused are guilty of failing to provide the necessaries of life to R.D., and that both accused are guilty of criminal negligence causing death. I do not believe Ms. A.D.1’s testimony; nor is it capable of raising a reasonable doubt on an essential element of the offences. Similarly, on the whole of the evidence, including all potentially exculpatory evidence, I do not have a reasonable doubt as to the guilt of Mr. S.B.. The Crown has proven that:

1. Ms. A.D.1 and Mr. S.B. each had a duty to provide necessaries of life to R.D.;

2. The failure to obtain medical treatment for R.D.’s burns breached the duty in a manner that endangered R.D.’s life;

3. It was reasonably foreseeable that the failure to obtain medical treatment would endanger R.D.’s life;

4. The failure to obtain treatment represented a marked departure from the standard of care of a reasonable and prudent parent or guardian;

5. The failure to obtain medical treatment also represented a marked and substantial departure from the standard of care that reflected a wanton and reckless disregard for R.D.’s life.

[206] In conclusion, for the reasons I have given, I find A.D.1 guilty on counts 1 and 2 on the indictment, and I find S.B. guilty on counts 1 and 3 on the indictment.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance

Justice

Released: Oral Decision – September 28, 2017

CITATION: R. v. S.B., 2017 ONSC 5924

COURT FILE NO.: 83/15 (London)

DATE: 20170928

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

S.B. and A.D.1

REASONS FOR JUDGMENT

Pomerance J.

Released: Oral Decision – September 28, 2017