Court File and Parties

BARRIE COURT FILE NO.: CR-18-000056-00 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW FITTON Defendant

Counsel: Michael Flosman, for the Crown Charles Manners, for the Defendant

HEARD: April 1-4, 8-9, 2019

REASONS FOR JUDGMENT

DI LUCA J. :

[1] Andrew Fitton is charged with two offences: aggravated assault and fail to provide necessaries of life. The alleged victim of the offences is Mr. Fitton’s baby daughter, Gabriella Antonia-Fitton, who was born just one month prior to the alleged offences.

[2] It is alleged that at some point on either December 26th or 27th, 2016, Mr. Fitton intentionally inflicted very serious injuries on Gabriella by either hitting her or shaking her, or perhaps doing both. Further, it is alleged that following the infliction of the injuries, he failed to get her immediate medical attention and failed to notify others including her mother, Kendra Antonia, of the true extent of her injuries.

[3] I start my Reasons by acknowledging that this is an incredibly tragic case. A young baby, barely a month old, sustained severe brain injuries that imperilled her life. By some miracle, she did not die. Her life was, however, forever altered. No words in my Judgment can repair this tiny child, and no words can undo the harm that has been caused to both the Fitton and Antonia families.

[4] My task in this case, much like in every criminal trial, is to determine whether the Crown has proven one or both charges beyond a reasonable doubt. The standard of proof is very high. It requires that I be sure of Mr. Fitton’s guilt before I find him guilty of an offence. Possible, or even probable or likely guilt, is not sufficient. A reasonable doubt can arise from the evidence or absence of evidence, though it must not be based on speculation, sympathy or prejudice.

[5] Mr. Fitton starts the trial presumed innocent. He does not need to prove anything. Most importantly, he does not need to prove what happened to his baby daughter. It is the Crown’s obligation to displace the presumption of innocence, by tendering sufficient evidence from which I can be satisfied of Mr. Fitton’s guilt beyond a reasonable doubt.

[6] The Crown’s case is entirely circumstantial. There is no direct evidence that Mr. Fitton harmed his daughter. In order for me to be satisfied beyond a reasonable doubt, Mr. Fitton’s guilt must be the only reasonable conclusion available when I consider the totality of the evidence tendered at trial.

[7] There are a number of matters that are not at issue in this trial. First, it is agreed that the evidence establishes that the injuries inflicted on the child were intentional and not accidental. Second, it is agreed that the injuries endangered the child’s life. Third, there is no issue as to time, place and jurisdiction.

[8] The main issue is whether the Crown has proven that it was Mr. Fitton who assaulted the child and inflicted the injuries.

[9] Mr. Fitton, as is his constitutional right, did not testify, nor did he call any defence evidence. His position, as advanced in cross-examination and through counsel’s submissions, is that the Crown has failed to prove that he harmed the child and that it is reasonably possible that Ms. Antonia harmed the child.

[10] I pause to note that the facts of this specific case present a dichotomy, in the sense that it was either Mr. Fitton or Ms. Antonia who harmed the child. There is no air of reality to a suggestion that it could have been someone else who harmed the child. Indeed, while a number of witnesses who had access to the child at the relevant time were called to testify, it was never suggested to any of them that they might have inflicted the injuries.

[11] That said, and to be clear, my role is not to simply choose between Mr. Fitton and Ms. Antonia by deciding who is more likely to have committed the offence. On this evidence I may be left in a position where I am not sure who harmed the baby, in which case an acquittal is required.

[12] Ultimately, my role is to decide whether the Crown has proven beyond a reasonable doubt that Mr. Fitton committed the offences. Mr. Fitton is under no obligation to prove that Ms. Antonia, or anyone else for that matter, committed the offences.

[13] I turn next to a summary of the evidence. The trial in this matter was not lengthy and I am indebted to counsel who presented the evidence in a fair, efficient and focussed manner.

Gabriella’s Birth and Events Leading Up to Christmas 2016

[14] Gabriella was born on November 27, 2016. Her birth was normal and there were no significant medical issues noted in post-natal follow ups. A decision was made to move the child from breast milk to baby formula, and this appears to have been done so that Kendra Antonia could resume taking Abilify, a medication she was taking to assist with some mental health issues.

[15] In her evidence, Kendra noted that baby Gabriella regularly exhibited a slight twitch in her hand. Kendra was advised by doctors that the twitch was possibly related to the medication that Kendra had taken during her pregnancy. Kendra also noted that Gabriella would vomit “out her nose” regularly and without warning. Indeed, one of Kendra’s fears was that the baby would vomit at night and choke on her vomit because she could not get it out.

[16] Once the baby was moved to formula, the specific type of formula was changed once or twice in order to find one that was agreeable.

[17] By all accounts, the child was relatively healthy and happy leading into the Christmas holidays.

[18] In terms of the family dynamic, Andrew and Kendra appear to have been involved in a relationship of relatively short duration. While the grandparents on both sides knew of the relationship and of the pregnancy, neither side had spent significant amounts of time getting to know their respective child’s partner. From the evidence it appears that Mr. Fitton’s parents had only met Kendra on a few occasions prior to Gabriella’s birth, and the same applies to Ms. Antonia’s parents. It appears that even after the birth the grandparents, apart from Kendra’s mother Julie Reil, did not have a significant amount of interaction with the baby, having seen the child on roughly a couple of occasions prior to the events of Christmas 2016.

[19] On the evidence before me, it is likely that both Andrew and Kendra were too young and too ill-equipped to become parents. Mr. Fitton was 19 years of age, employed part-time at Wendy’s in Orillia. One of his main interests was playing video games.

[20] Kendra was approximately 18 or 19 years of age when her daughter was born. She was dealing with mental health issues relating to depression and anxiety. At the time, she had been diagnosed with Borderline Personality Disorder. She was also diagnosed with Asperger’s Syndrome. She was living on social assistance and Andrew was likely living with her at least part of the time, in contravention of the terms of her financial support.

[21] While there is some evidence before me suggesting that both Andrew and Kendra were coping well with the new baby, it seems clear that they were both having a hard time. At the best of times, the addition of a baby to a relationship presents challenges. New parents find themselves overwhelmed and exhausted. They are trying to learn how to care for a young baby who is needy and fragile. There are family demands and dynamics that present themselves. There are often financial and other pressures. Despite the evidence suggesting that Andrew and Kendra seemed to be managing, I find that the challenges of a new baby would have been significant for both of them.

[22] On this issue, I also note that there is a divide in the evidence about the parenting skills of both Andrew and Kendra. In her evidence before me, Kendra indicated that Andrew was an inattentive father who had to be instructed to have involvement with his newborn daughter. Kendra did the majority of the child care and Andrew exhibited little, if any interest. In cross-examination, Kendra agreed that at the time of the incident she told police that Andrew was a kind and loving father who she did not believe would have inflicted any injuries on baby Gabriella.

[23] Witnesses who observed Kendra with the baby noted that she was caring and attentive, and no one observed her do anything untowards with the child.

[24] Jeanette Fitton, Andrew’s mother, testified that in her view her son was the primary caregiver, and Kendra was the inattentive one. She opined that when she saw Kendra and Andrew together, it was Andrew who was “95%” responsible for caring for the child and it was Kendra who seemed disinterested. Jeanette Fitton went further, and indicated that she was surprised and impressed with Andrew’s demonstrated parenting ability and interest in the child.

[25] A number of other witnesses who were present at different events over the Christmas holidays testified that Andrew appeared to be a careful and attentive father. He appeared to be able to care for and feed the child, though he had assistance from his mother with some tasks like preparing a bottle.

[26] I note that the evidence of each side of the family had a certain partisan quality to it that suggests that the truth lies somewhere in the middle on all fronts.

[27] In terms of the plans for Christmas 2016, Andrew and Kendra were planning on dividing the holiday time between their respective families. It appears that the Christmas celebrations took on a renewed level of enjoyment given the presence of baby Gabriella.

[28] On Christmas Eve, Andrew, Kendra and Gabriella, stayed at the Fitton residence with Andrew’s mother and step-father. All who were present that evening noted nothing wrong with Gabriella. She had no trouble eating and moving her arms and legs. The evening ended without any fanfare and there were no issues overnight.

[29] On Christmas morning, everyone woke up and had breakfast. A gift exchange followed. Photographs of the morning’s festivities were entered as Exhibits 1 (a-e), and they depict Gabriella with an attentive and apparently healthy appearance. In one of the photographs, Andrew is feeding the baby.

[30] At around noon on Christmas Day, Andrew, Kendra and Gabriella, went to visit Kendra’s father. Andrew got the baby ready for the drive over and there were no obvious issues when leaving the Fitton house.

[31] Once at Kendra’s father’s home, further photographs were taken. These photographs were marked as Exhibits 2 (a-c). Again they depict Gabriella as apparently healthy. In one photograph she is seen sleeping in a small swing chair next to Kendra.

[32] Dwayne Antonia, Kendra’s father, and Cheyanne Antonia, her cousin, were present during this visit and they testified that the baby seemed generally happy and healthy, though a bit fussy around feeding. They noted nothing untoward in observing the parents’ interactions with the child.

[33] At approximately 5:00 or 6:00 p.m. Jeanette Fitton contacted Andrew and Kendra to advise that dinner would be ready, and they returned with the baby to the Fitton home for dinner. As neither Andrew nor Kendra drove, they arranged for a mutual friend, Mike Harrington, to provide transport.

[34] Once they arrived back at the Fitton residence, they started dinner. Jeanette Fitton and Rex Cooper were present, as were Andrew, Kendra and Gabriella.

[35] Approximately an hour or so after they returned to the Fitton residence, Kendra began to feel the onset of a panic or anxiety attack and she decided to leave. She texted Mike Harrington to pick her up and she left with him, leaving Gabriella behind with Andrew and Andrew’s parents.

[36] Up to the point when Mike Harrington picked her up at the Fitton residence, Kendra noticed nothing wrong with Gabriella. She was asked whether she noted any twitching and replied “just her usual.” Jeanette Fitton noted that Gabriella threw up after a feeding and recalled that Andrew changed the baby. According to Jeanette, the baby threw up regularly and Kendra had switched from breast milk to formula, and then to a different formula.

[37] When Kendra left, the plan was initially that she and Andrew and Gabriella would meet up the next day and go and visit another family member. However, as a result of a snow storm that visit never occurred.

[38] Following Kendra’s departure, Andrew, Gabriella and Andrew’s parents, went to visit a nearby neighbour. Andrew was a bit annoyed and/or embarrassed that Kendra had opted out of the visit.

[39] A number of witnesses who were present at the neighbour’s house testified that Andrew came over with Gabriella. They observed him tend to the child in an appropriate and caring way. He seemed happy to be a father, though tired. No one noticed anything untowards with the child’s demeanour or presentation. She appeared happy and healthy, and was sleeping for parts of the evening.

[40] Once Andrew, Gabriella, Rex and Jeanette returned to their home, Andrew fell asleep on the couch. Gabriella was in a small plastic bathtub that had been lined with blankets so as to function as a bassinet. Jeanette testified that at some point in the middle of the night, she was awoken by Rex who was holding the baby who had been crying. Jeanette fed the baby, and then took the baby into her bedroom for the balance of the night. Andrew did not wake up for the feeding. Rex could not recall this incident in his testimony.

[41] On the morning of December 26th, Jeanette and Rex were up early and cared for the baby. Andrew slept in until 11:00 or 12 noon. After he woke up, he and Rex drove into town to do some Boxing Day shopping as Andrew wanted to buy a gaming system. Jeanette stayed home with the baby.

[42] Jeanette reported no problems with the baby, though she ran out of water for the formula and had to use bottled water. She did not hear from Kendra that day.

[43] When Andrew and Rex returned from shopping, Andrew played with the baby and also set up his game system.

[44] That evening, which would have been the 26th of December, Andrew took Gabriella into his bedroom to sleep. She was placed in the makeshift bassinet. Neither Jeanette nor Rex heard anything untowards happening in the bedroom, apart from some shuffling. They did not hear Gabriella that evening. Jeanette recalled walking by Andrew’s bedroom in the middle of the night on her way to the bathroom. The door was slightly ajar and she could see Andrew holding the baby. Nothing seemed out of the ordinary.

[45] In the morning, Jeanette first entered the bedroom and again found Andrew holding Gabriella. Andrew apologized because Gabriella had thrown up on the comforter, and he indicated that he was worried as the baby was not taking her bottle. The baby had also not had a bowel movement in some time. According to Jeanette, the amount and smell of the vomit was not out of the ordinary. Jeanette thought that the baby’s condition was possibly related to the use of different water in the formula. She also recalled that Andrew had reacted in the same way when he was a baby. Rex could not recall any discussion that morning about the baby not feeding, but agreed that at the preliminary inquiry he recalled there being some discussion about the issue.

[46] Later that morning, Jeanette noted that the baby had bowel movements and she changed the baby. She was comforted by this fact.

[47] The plan for that morning was that Andrew and the baby were to meet up with Kendra, as the baby had a scheduled medical appointment at a doctor’s office near Kendra’s apartment.

[48] The baby was bundled and eventually driven over to Kendra’s apartment. Rex Cooper took a photograph of the child, Exhibit 1 (f), before she departed, indicating that she “looked so beautiful.” In the photograph the child has her left arm up against her eye and face, and she appears wrapped in a towel or blanket.

[49] Text messages sent that day suggest that Andrew was on his way over to Kendra’s at approximately 12:04 p.m. In the exchange of texts, Andrew indicates that he had not slept the night before. Kendra asks him if he will be going to the doctor’s appointment and he replies “IDK”, meaning “I don’t know.” The texts suggest Andrew arrived at Kendra’s at approximately 12:49 p.m.

[50] Andrew and Gabriella were driven over to the apartment using Rex’s car. According to Jeanette, the heater in the car was working fine that day. This evidence contradicts an utterance made by Andrew, who told Kendra that the baby was cold because the heater in the car was not working.

[51] Upon arrival at Kendra’s apartment, Jeanette carried in the baby while Rex and Andrew carried in the Christmas gifts. Jeanette was struck by the fact that the apartment was a mess and Kendra had dyed her hair a different colour.

[52] Jeanette and Rex stayed for approximately 10 minutes and left. Apart from noting that the baby looked a little pale, Jeanette had no concerns. Gabriella was sleeping when she left. In her mind, she assumed the baby was exhausted and had been constipated. She was not overly concerned about the fact that the baby had missed her feeding that morning.

[53] Andrew stayed at the apartment as he had to go to work at Wendy’s later that afternoon.

[54] According to Kendra, when the baby was brought up to her apartment she noted that the baby was pale and “ice cold” to the touch. She initially assumed that this was related to the weather outside.

[55] She also noticed that the baby was “barely breathing” and this caused her heart to sink. She asked Andrew what was wrong and Andrew said the baby was constipated. When Kendra picked up the baby, the baby was “screaming” and Kendra noticed the baby’s hand was twitching. She asked Andrew if they should take the baby to the hospital, but she could not recall his response.

[56] In cross-examination, Kendra agreed that the twitching she observed when the child was returned to her was the twitching she had observed on Gabriella since birth, and she again related that the doctors believed that this was caused by medication Kendra took during her pregnancy.

[57] She also indicated that it was very warm in her apartment, and that the baby warmed up and “pinked up” after her arrival at the apartment.

[58] After her initial interaction with Gabriella and Andrew, Kendra continued to do things around the apartment, including getting Gabriella ready for the doctor’s appointment later that afternoon. During this time Gabriella was quiet.

[59] Andrew was playing video games in the living room on his new gaming system. His plan was to stay at the apartment until he had to leave for work at approximately 3:00 p.m.

[60] At some point later in the day, Kendra’s mother, Julie Reil, came over to her apartment to take her and Gabriella to the doctor’s appointment. Text messages suggest this occurred at some point after 1:04 p.m., and Kendra testified that her mother arrived approximately one hour after Gabriella was returned home. That said, the exact time of Julie Reil’s arrival is unclear.

[61] When Julie arrived, she observed that Gabriella appeared lethargic but otherwise did not notice anything else of concern. Julie believed that the lethargy was related to the various moves the baby had been subjected to over the Christmas holidays. Julie did not observe any paleness, though made these observations while the child was in a car seat with a hood over the seat. Julie was told that the child was cold, but noted that she had just come in from the cold and did not notice that the child was cold. Overall, she did not notice anything wrong with the child. Julie agreed that if she had had any concerns about the child, she would have taken her to the hospital which was right across the street. She did not recall giving Kendra any advice about the child’s condition.

[62] Julie recalled Andrew and Kendra talking about the baby, and Andrew mentioned that the baby was cold and not eating. There was a discussion about taking the baby to the hospital. Kendra said maybe she would take the child to the hospital and Andrew said “do what you have to do.” Kendra said she would do what she thought was best for the child, and Julie suggested that she just keep an eye on the child.

[63] Julie then drove Kendra to the doctor’s office which was a short distance away. The plan was to drop Kendra and Gabriella off at the corner, from where they would walk over to the doctor’s office while Julie drove off.

[64] As it turns out, when Kendra tried to enter the doctor’s office she discovered that the office was still closed for the holidays. Apparently, the reminder card for the appointment incorrectly noted the date of the appointment. According to Kendra, when she was standing outside the doctor’s office she became upset, began to cry and called her mother to come back to get her. In cross-examination, Kendra denied that she became frustrated and either intentionally or unintentionally shook Gabriela at this point.

[65] In her evidence, Julie Reil claimed to see Kendra try the door to the doctor’s office and not get in, though she also claimed that she drove off before returning to retrieve Kendra. It seems odd that Julie claims to have seen Kendra unsuccessfully open the doctor’s office door and then proceeds to drive off. If she actually saw Kendra not being able to get into the office, one would assume that she would not have driven off.

[66] After the doctor’s office, Julie, Kendra and Gabriella, returned to Julie’s residence. They were there for approximately one hour. During that time Julie did not hold the baby, but also did not observe anything wrong with the baby.

[67] Also during this time, Kendra asked Julie to videotape the baby using Kendra’s phone. According to Julie, Kendra indicated that she was “a bit concerned” because the baby’s hand was moving against her chest. Kendra wanted a video in case she needed to take the baby to the doctor and show them. In her evidence before me, Kendra indicated that she was not really sure why she asked her mother to videotape the baby, though she recalled that she was “googling” stuff and read that if she observed something happening with the child, she should videotape it to show the doctor in case the baby was not doing the same thing once they got to the doctor. Kendra indicated that she observed Gabriella twitching her hand, and that the twitch was not like the twitching she had seen earlier.

[68] Kendra was not sure what time the videos were taken at, though the time stamp on the videos show the first video was taken at 3:48 p.m. and the second video was taken at 4:00 p.m. The first video shows the child with a visible twitch. The child otherwise appears to be sleeping. The second video shows the child with a much more pronounced twitch. The child is also crying and fussing.

[69] Julie also recalled a discussion with Kendra about the baby. Julie had some memory issues regarding the discussion, but noted that she did not see anything wrong with the child. She recalled telling Kendra that she was the mother and she should make the decisions. She did not think she suggested taking the child to the hospital at any point. According to Kendra, once they returned to her mother’s residence, her mother told her not worry because she recalled Kendra doing the same sorts of things when she was a baby.

[70] Text messages around this time detail the following interactions.

[71] At approximately 2:30 p.m., Kendra texts Andrew indicating that she is a little mad because the doctor’s office was closed. She asks him if she should take the baby to the hospital and he replies “maybe”. She then asks him to text her “everything that’s off with her that you noticed in detail.” He replies indicating that the baby was pale and constipated. He does not mention in the text that she was not feeding.

[72] At approximately 3:09 p.m., Kendra texts Andrew back and indicates that she spoke with nurses who said that babies are really sensitive to water changes and that she should be back to her normal self in a couple of days. In her evidence before me, Kendra indicated that she had, in fact, not spoken with any nurses.

[73] In a series of texts that follow, Kendra is texting both Mike Harrington and Andrew. The gist of the texts is that she is upset that Andrew has not cleaned up the apartment, and has instead just been playing video games. Andrew and Kendra appear to have an argument over parenting issues, cooking, cleaning and the fact that they are tired. In these texts, Andrew states that he is “tired as fuck” and has not slept in two days.

[74] At approximately 3:33 p.m., Kendra texts Mike Harrington and says that she is pissed off and needs some “retail therapy.” Mike says he will pick her up at 4:30 p.m.

[75] According to Mike Harrington, he was at Kendra’s apartment with Andrew during that afternoon. He was texting with Kendra while he was watching Andrew play video games. He drove Andrew to work, and then drove over to Julie Riel’s residence where he picked up both Kendra and Gabriella and took them shopping at Walmart. When Gabriella was in the back seat, he noted she was fussing a bit.

[76] Once at Walmart, he noticed that Gabriella’s left arm was “slapping her face.” He noted that she was twitching and crying off and on. He became concerned, and he googled what he described as “scary baby syndrome” and determined that the baby should be brought to the hospital. He then raised this concern with Kendra, suggesting that she should take the baby to the hospital.

[77] Notwithstanding the concern and suggestion, Kendra continued to shop for approximately 45 minutes. During this time, the baby was twitching “80%” of the time and was fussing.

[78] After leaving Walmart, Mike drove Kendra and Gabriella to Kendra’s apartment and he then went to his home as he had to go to the bathroom. He returned 18 to 20 minutes later and noted that Kendra had not yet called a nurse. Instead, Kendra was trying to feed the baby and the baby was not eating. He pressed her to call a nurse and according to Mike, Kendra called Telehealth approximately 15 minutes later.

[79] Prior to that call, at approximately 6:39 p.m., Kendra sent a text to her mother Julie indicating that Gabriella was not taking her bottle, and that it had been close to seven or eight hours since her last bottle. She also told her mother that Mike drove them back from Walmart and was going to make dinner for them. Julie replied “She’s more tired than hungry. It’s ok” and “Just keep trying to give her one though.”

[80] At approximately 6:42 p.m., Jeanette Fitton texted Kendra asking how the baby was after the doctor’s appointment. Kendra indicated that the doctor’s office was closed. She also advised Jeanette that the baby was fussy, not wanting her bottle and twitching. She indicated that the baby’s left side would twitch for a few minutes and then stop. She asked Jeanette if the baby had been twitching at her house earlier that day, and Jeanette replied that she did not recall any twitching. Kendra also told Jeanette that she had called the hospital and had been advised that the constipation was due to the change in water.

[81] At approximately 7:11 p.m., Jeanette replied “You do what you feel is best for her, please keep me posted, I am worrying now!”

[82] At 7:12 p.m., Kendra replied and indicated that she was going to bring the baby across the street to the hospital, as the twitching had been going on since she got back and it was getting worse. She asked Jeanette if there was anything she should ask the doctor about other than constipation and Jeanette replied that that was all she could think of, indicating that the baby was fine before, just fussy. Kendra asked if the baby had eaten, and Jeanette replied that the baby had eaten the night before and had spent the night with Andrew.

[83] Kendra also advised her mother that she was taking the baby over to the hospital as the twitching had gotten worse. She indicated that she was really worried. These texts were at approximately 7:14 and 7:19 p.m., and intermingled with the texts with Jeanette Fitton.

[84] The call to Telehealth occurred at 7:46 p.m., and it resulted in the arrival of ambulances and paramedics at Kendra’s apartment. Gabriella was taken to Soldier’s Memorial Hospital which was across the street from her apartment.

[85] When the baby was on the way to the hospital, Mike Harrington drove to Wendy’s to get Andrew. When he told Andrew that his daughter was being taken to hospital, Andrew replied “you’ve got to be fucking kidding me.” At this time, Andrew made no comment to Mike about the baby’s condition earlier that day and made no mention of the twitching.

[86] Upon arrival at the hospital, Gabriella presented as lethargic and difficult to stimulate. She had periods of apnea where breathing slowed and/or stopped. She was pale with an irregular heartbeat. She also was observed with a left side twitch, a distant stare and poor focus. That said, doctors did not observe any bruising or other signs of external injuries apart from some swelling on her scalp at the back of her head.

[87] Gabriella’s condition was critical and life-threatening. She required extensive life resuscitation efforts including intubation and ventilation, a blood transfusion, anti-seizure medication and a number of other related medications and procedures.

[88] Shortly after midnight, doctors made the decision to transfer her to Sick Kids Hospital in Toronto where she was admitted into the Neonatal Intensive Care Unit.

[89] Over the next few days, doctors performed many tests and life-saving procedures. An ophthalmology examination revealed extensive retinal hemorrhages in both eyes. The number of hemorrhages were too many to count. The hemorrhages extended through all layers of the retina, as well as towards the front of the eyes. Gabriella was also diagnosed with bilateral mixed density subdural hemorrhages – effectively bleeding around both sides of the brain. She also had swelling and a tear to the brain tissue, bleeding around the spine, soft tissue and ligament damage around the base of the skull, neck and spine, as well as a possible bowel injury.

[90] Gabriella also continued to have seizures, both visible and subclinical or non-visible. By the time the seizures had abated on December 31st, 2016, Gabriella was on six different types of anti-seizure medications.

[91] On January 2, 2017, with her condition not improving, doctors decided in favour of a redirection of care to permit a natural death. Gabriella’s breathing tube was removed, and against all odds she continued breathing. Over the next days and weeks she continued to make improvements, eventually resulting in a discharge from the hospital on January 13, 2017.

[92] Following discharge, Gabriella continued under medical care. Unfortunately, as of six months after her discharge, Gabriella continued exhibiting significant developmental delays and a limited prognosis for recovery.

The Expert Medical Evidence

[93] Dr. Michelle Shouldice was qualified to give expert evidence in relation to the injuries suffered by the child. Her report was filed on consent and was supplemented by evidence in chief and cross-examination.

[94] Dr. Shouldice gave helpful and objective evidence relating to the nature and extent of the child’s injuries, the possible timing of the injuries and the possible causes.

[95] It was Dr. Shouldice’s opinion that the constellation of injuries to Gabriella suggested either a blunt force or an inertial mechanism of causation, or perhaps both. In other words, the baby was either hit on the head or shaken, or both. This conclusion was not challenged, and indeed was accepted by both parties. Without going into the details of her evidence on this issue, I will simply note that Dr. Shouldice’s report and evidence provides a detailed review of the background facts, along with a careful consideration of the possible explanations for Gabriella’s injuries. Dr. Shouldice explains why she is satisfied that the injuries were caused in the manner indicated, and why there is no other available explanation. In view of the constellation of injuries, I have no hesitation accepting her evidence on how the injuries to Gabriella were caused.

[96] In terms of the timing and presentation of the injuries, Dr. Shouldice indicated that the following would be symptoms of a brain injury: irritability, an unusual possibly high pitched cry, lethargy, a lack of arm and leg movement, excessive sleepiness, poor eye contact, poor feeding as in not wanting to feed as expected, vomiting beyond the ordinary spit up, apnea and breathing disturbances, seizures and eventually coma and death.

[97] Dr. Shouldice indicated that paleness was not a symptom specific to head injuries but could be seen in some cases. In terms of coolness, Dr. Shouldice indicated that coolness could be related to reduced circulation stemming from a head injury, but also could be related to the fact that a child was left uncovered.

[98] In cross-examination, Dr. Shouldice agreed that fussiness, not eating, vomiting, crying and paleness, were all non-specific symptoms. In other words, these symptoms could be present in cases other than head injuries. Dr. Shouldice agreed that a child could have all these symptoms and no traumatic brain injury. In terms of lethargy, Dr. Shouldice indicated that lethargy was indicative of something wrong with a child, though she added “assuming it is true lethargy.” She also indicated that a child could have a twitch that was not related to a seizure and that even a seizure could have other explanations, though seizures generally suggest some sort of brain abnormality.

[99] In terms of timing of the injuries, Dr. Shouldice testified that with the injuries present in this case, one would have expected to see symptoms immediately after infliction of the injury. The symptoms could be immediate and severe, or immediate and less severe. Where the symptom were less severe, they could worsen over a number of hours as swelling to the brain occurred.

[100] Dr. Shouldice opined that the constellation of injuries suggested a recent injury that would not have occurred days prior. The injury would have been recent, with a fairly immediate presentation of symptoms. In terms of a progression of symptoms, Dr. Shouldice indicated that there would be a lack of predictability. All the symptoms could present immediately, though at times they could present in sequence over hours. In terms of the recency of the injury, Dr. Shouldice indicated that she would have expected the symptoms to be present within minutes. She also indicated that Gabriella would not likely have demonstrated a period of no symptoms followed by the symptoms.

[101] It was Dr. Shouldice’s opinion that the videos of the twitching were likely related to seizures. In other words, Gabriella was likely having a seizure when those two videos were taken. That said, Dr. Shouldice could not state when the injury was inflicted by reference to the time of the videos. She indicated she did not know when the seizures started. In other words, the seizure likely seen on the video may not have been the first seizure.

[102] Based on the evidence available, Dr. Shouldice was reluctant to pinpoint a time for the infliction of the injuries. She indicated that she would not have expected the baby to be acting normally after the injuries were caused. She agreed that it was not likely that the baby was having seizures for hours or days without deteriorating to the point of needing medical assistance. She could not say with any certainty that the injury was caused between 9:00 p.m. on the 26th of December and 12 noon on the 27th of December.

Analysis and Findings

[103] I turn next to assessing whether the Crown has proven the charges against Mr. Fitton beyond a reasonable doubt.

[104] In this regard, I note that Mr. Fitton is charged with two offences: aggravated assault and failing to provide necessaries of life.

[105] In terms of the offence of aggravated assault, proof of the offence requires that the Crown prove that Mr. Fitton assaulted the child and caused injuries that endangered her life. The injuries do not have to be intended. It is sufficient if there is an objective foreseeability of injury. There is no issue that if the assault is proven in this case, it amounts to an aggravated assault as that term is defined in the case law.

[106] In terms of failing to provide necessaries of life, there is no issue that Mr. Fitton was under a duty to provide Gabriella necessaries of life. There is also no issue that the provision of medical assistance in the circumstances of this case amounts to a necessity of life; see R. v. J.S. (2015), 2015 ONCA 97, 320 C.C.C. (3rd) 524 (Ont. C.A.). A failure to provide required medical assistance can amount to “necessitous circumstances” under s. 215(2)(a)(i), and can also lead to liability under s. 215(2)(a)(ii) where the failure to perform the duty endangers the life of the person or causes the person’s health to be permanently endangered. The mens rea is assessed objectively and requires the Crown to prove that the accused’s conduct was a marked departure from the conduct reasonably expected of a parent in the circumstances; see R. v. Naglik, [1993] 3 SCR 122 and R. v. F.J., 2008 SCC 60, [2008] 3 SCR 215.

[107] The charges are to be assessed individually. That said, on the evidence before me, if Mr. Fitton is guilty of aggravated assault, he will also be guilty of failing to provide necessaries of life. If, on the other hand, Mr. Fitton is not guilty of aggravated assault, I must then turn to assessing whether the Crown has, nonetheless, established that he failed to provide necessaries of life. In theory, Mr. Fitton might still be guilty of failing to provide necessaries of life if he knew that the child needed medical attention, and either failed to get the child medical attention or provided false or incomplete information that thwarted or delayed the provision of medical attention.

[108] As indicated at the outset of my Reasons, the case against Mr. Fitton is entirely circumstantial. As such, the Crown must prove beyond a reasonable doubt that the only reasonable inference on the evidence before me, is that Mr. Fitton assaulted his baby daughter and caused the injuries.

[109] In order to do so, the Crown relies on the following items of evidence:

[110] First, the Crown argues that the symptoms present when Gabriella was delivered to Kendra on December 27th at approximately 12:45 p.m., support a finding that the injuries were already inflicted at that time and, conversely, negate the suggestion that the injuries were caused after that time when the child was in Kendra’s care.

[111] Second, Kendra Antonia denied causing any injury to the child. While Kendra presents with some credibility challenges and issues, the Crown asks that I accept her denial of having caused the injuries to Gabriella. In the context of the evidence in this case, the credibility of Kendra’s denial of involvement is an important issue to be determined. The injuries to the child were caused by either Kendra or Andrew. While a number of other people had access to the child on December 26th and 27th, 2016, there is no suggestion before me that anyone else would have caused the injuries.

[112] Third, assuming the injuries were caused prior to Gabriella’s arrival at Kendra’s apartment, the only person who would have caused them was Mr. Fitton. The Crown points to the fact that Andrew had Gabriella in his room overnight on the 26th of December, he was exhausted and by his own admission had little to no sleep for two nights. There is no air of reality to either Jeanette Fitton or Rex Cooper having inflicted the injuries.

[113] Fourth, the Crown argues that Mr. Fitton lied about a number of issues and these lies suggest that he knew he had injured his baby. In particular, the Crown points to the divide in the testimony about whether the heater in the car was working during the drive over to Kendra’s apartment. The Crown argues that Mr. Fitton knew the baby was cold and pale because he had injured the child, and in order to cover up the injury he suggested that the heater in the car was not working when in fact it was.

[114] Further, the Crown argues that when Mr. Fitton is pressed by Kendra on the symptoms he observed, he responds to the texts indicating that the child was pale and constipated. He does not mention in the texts that the child had not eaten or that the child had vomited. The Crown argues that Mr. Fitton was intentionally under-reporting the symptoms in order to cover up the injuries.

[115] In assessing the import of the purported lies by Mr. Fitton, I remind myself that the mere rejection of an accused’s statement does not automatically turn the statement into positive evidence of guilt against the accused. It is only where the Crown can prove through independent evidence that the accused’s rejected statements were fabrications, that I can use them to assess whether the Crown has proven the case beyond a reasonable doubt, see R. v. O’Connor (2002), 62 OR (3d) 263 (Ont. C.A.) and more recently R. v. Bradey, 2015 ONCA 738.

[116] Ultimately, the Crown argues that once I accept Kendra’s denial of involvement, and once I consider the totality of the circumstantial evidence in concert with the fabricated statements of Mr. Fitton and the expert evidence, the only reasonable inference is that Mr. Fitton is the person who inflicted the injuries on Gabriella.

[117] The defence position stated succinctly, is that there are credibility concerns with Kendra’s denial. Her conduct on the day in question raises many issues. She also is an admitted liar who was not honest about a number of facts.

[118] The defence argues that I cannot accept Kendra’s denial, and in fact I should look to whether it is reasonably possible that she inflicted the injuries on Gabriella. In this regard, the defence notes that Kendra had the opportunity to do so once the baby was dropped off at her apartment, and especially once she was with the baby while attempting to see the doctor. The defence argues that the presentation of the symptomology suggests that the baby was injured in the afternoon of December 27th, after Andrew had delivered the baby to Kendra. In this regard, the defence notes that while Gabriella was showing some symptoms on the morning of December 27th, 2016, those symptoms are equally consistent with the child being tired, under the weather and/or having gone through food and water changes. The twitch that is observed early that day was the same twitch that had been observed on Gabriella since birth. The onset of the significant symptoms occurs later that afternoon and into the evening hours. In this regard, the defence argues that the timing of the videos at 3:48 and 4:00 p.m. suggest that Gabriella is deteriorating at that point, and that matters spiral downhill following the trip to Walmart and the return to Kendra’s apartment. It is only around 7:00 p.m., that Kendra becomes truly concerned about the baby’s presentation that she starts to do something about it. And it is 7:45 p.m. before a call is made to Telehealth. According to the defence, when all the evidence is considered there is at least a reasonable doubt based on the timing of the infliction of the injuries.

[119] I will start with assessing the presentation of symptoms and the medical evidence of timing of the injuries.

[120] In order to prove the case against Mr. Fitton, the Crown must prove that the injuries to the child were caused at a point in time when he had exclusive access to the child. On the facts of this case, the relevant time period would appear to be between the late evening of December 26th and around noon on the 27th of December.

[121] There is no issue that Gabriella appeared to be happy and healthy on the evening of December 26th, when Andrew took her into his room to sleep. Neither Jeanette Fitton nor Rex Cooper heard anything untowards during the night of December 26th. Jeanette saw Andrew sitting up with the child in the middle of the night as she went to the bathroom. In the morning, Jeanette noted and was told by Andrew that the baby had vomited on the comforter, though she noted that it was not an unusual amount of vomit nor was the smell any different. On this issue, I pause to note that Kendra confirmed that the baby would regularly vomit, and indeed it was a concern of hers that the baby would vomit through her nose at night and choke on the vomit.

[122] In the morning Andrew told his mother and likely his father as well, that the baby was not feeding and was constipated. Jeanette testified that the baby had a number of bowel movements that morning and she recalled changing the baby’s diapers. She was comforted by the fact that the baby had bowel movements, and felt that the baby’s reluctance to feed may have been related to the change in water and formula. I pause here to note that Kendra herself later sent a text claiming to have received this very information from nurses she contacted at the hospital. While there is some uncertainty as to whether Kendra actually contacted a nurse, there seems to be no real issue that a change in water or formula may cause a baby to stop feeding for a period of time.

[123] Apart from the concern about constipation and feeding, no one present at the Fitton household noted anything off with the baby. At around noon, the baby was bundled into a car seat and transported over to Kendra’s apartment. A photograph of the child was taken by Rex Cooper shortly before they departed. The Crown notes that in the photograph, Gabriella has her left hand up near her face. He suggests this supports an inference that the child was twitching, perhaps having a seizure at that time. I agree that the photograph captures the child with her hand in a position up near her face. However, I am not in a position simply by looking at the photograph to conclude that the child was having a seizure or already had been injured at the time. Nonetheless, the photograph remains a piece of evidence to be considered along with all of the evidence.

[124] When the baby arrived at Kendra’s apartment, Kendra noted that the baby was pale and cold to the touch. That said, she indicated that after some time in her apartment the baby warmed up and “pinked up”. Kendra indicated that Andrew told her the heat in the car was not working. Andrew is contradicted on this by his mother Jeanette, who indicated that the heater in the car was in fact working. I have no reason to disbelieve Jeanette on this point. As such, her evidence provides a basis upon which I may find that Andrew’s evidence on this issue was fabricated to cover up his true knowledge of Gabriella’s condition. However, I am not satisfied that his utterance about the heater in the car not working was fabricated to address a symptom presented by Gabriella, namely, the fact that she was cold and pale. While the utterance may have been inaccurate or even untruthful, I find it has little probative value in assessing whether Andrew made the utterance because he knew that the baby’s presentation was due to injuries he inflicted. In short, it is equally consistent with being an off-handed defensive reply to Kendra’s questions. Moreover, Kendra acknowledged that it was cold outside, the hood cover of the car seat was not on and the child’s condition changed once inside her very warm apartment.

[125] In terms of Andrew’s purported under-reporting of symptoms, I find that Andrew indicated that the child was pale and constipated. He did not report that the child had bowel movements as reported by Jeanette, or that the child had vomited. He did not mention in text messages that the baby had not taken her bottle, though it appears from Julie Reil that Andrew did mention this fact to both her and Kendra before the baby was taken for the doctor’s visit. The evidence of Kendra and Jeanette was that the baby regularly vomited, and as such it is difficult to read much into Andrew’s failure to mention to Kendra the fact that the baby had vomited earlier that morning.

[126] On the whole, I am not prepared to infer that there is an inculpatory aspect to how Mr. Fitton reported the various symptoms. While he was not entirely consistent and/or complete, I am not prepared to hold him to a standard of perfect reporting. More importantly, his reporting on the whole matched Gabriella’s presentation at the time. As such, I am not prepared to find that Andrew was attempting to mislead anyone about Gabriella’s condition.

[127] In terms of the twitching, it appears that at the time of initial arrival of the child, Kendra noticed a twitch. However, she indicated that the twitch was no different than the twitch the child had demonstrated since birth, which was likely or possibly related to Kendra’s medication.

[128] There was a brief discussion between Andrew and Kendra at this time. The specifics are a bit unclear, but it appears that Kendra asked whether she should take the child to the hospital but she could not recall Andrew’s response. Assuming that this discussion occurred, I note that it was in the context of Andrew dropping the child off for an anticipated doctor’s appointment that had been scheduled for later that afternoon. At a minimum, Andrew had raised concerns with his mother and father and then with Kendra about the baby not eating and being cold and pale. These concerns could be indicative of some degree of culpable knowledge on his behalf, but they are also consistent with him being simply concerned about his daughter’s presentation that morning.

[129] When Kendra’s mother Julie Reil arrived approximately one hour later, she noted nothing significant about the baby’s presentation. On this issue, I note that out of all the grandparents, Julie Reil was the person who had the most contact with Kendra and Gabriella. Her evidence was that she would see Kendra and Gabriella every couple of days. As such, she was perhaps best placed to have a rough baseline of what the child presented like normally. In this regard, her observations of the child are telling.

[130] Julie recalled a discussion between Andrew and Kendra, wherein Andrew mentioned that the baby was not feeding and was constipated. When Kendra suggested she might take the baby to the hospital, Andrew replied words to the effect “do what you have to do.” At this time, Julie did not believe that there was anything wrong with the child and did not think that the child needed to go to the hospital. The only thing that Julie observed was that the child appeared lethargic, though she assumed it was because the child had been moved around a fair bit over the Christmas holidays.

[131] In terms of the medical evidence, I accept Dr. Shouldice’s evidence that the nature and extent of the injuries in this case would have resulted in observable symptoms right after the injuries were inflicted. Those symptoms could be severe, or perhaps less severe and building up over time.

[132] Dr. Shouldice agreed that symptoms like not feeding, paleness, lethargy and vomiting could, alone or in combination, be present both in a child who has had a significant head injury and also in a child that has not had a brain injury. On the issue of lethargy, Dr. Shouldice was careful to note that “true lethargy” in a medical sense would be concerning, but this evidence was not developed and I was not provided with an explanation as to what lethargy from a medical perspective entails. As a result, I am unable to determine whether the child presented as “lethargic” in a medical sense, though I accept that Julie used the term lethargic in describing the child. Viewed in context, I find that Julie’s use of the word lethargic was intended to convey the fact that the child appeared tired.

[133] In terms of the twitching, while Dr. Shouldice was of the view that the child was likely having a seizure or seizures in the videos taken at 3:48 p.m. and 4:00 p.m. respectively. Kendra did not feel that the twitching she observed when the child arrived around 12:45 p.m. was out of the ordinary. In fact, it appears that one reason why she was concerned about the twitching later, was because it was worse than the usual twitching which she observed on Gabriella.

[134] I turn next to assessing the credibility of Kendra’s evidence that she did not harm the child. I note at the outset that Kendra has a number of mental health issues and struggles. I remind myself that the mere fact that she has mental health struggles is in no way indicative of her general credibility or reliability as a witness.

[135] In my view, Kendra’s evidence presents a number of challenges.

[136] First, it is clear that she has re-visited her views about Mr. Fitton and that her evidence about him has an element of hindsight bias and animus. She candidly accepts that when she was initially interviewed by police, she told them that Andrew was a loving and caring father who would not hurt Gabriella in any way. At trial, she describes Mr. Fitton in very different terms, suggesting that he was distant and uninterested in his daughter and that he essentially needed to be instructed to do everything with her. When asked to explain this discrepancy, she suggested that it was based on “what she now knows” and that at the time she was “in love and in love with being in love.” She maintained that she did not lie to police, and that both versions were true at the time she gave them. While I understand why she might be revisiting what she thinks about Andrew, I am concerned that this hindsight revision taints the objectivity of her recollections.

[137] As an aside, I note that most of the witnesses who testified indicated that Andrew seemed to be a caring father who obviously loved his daughter, though he was young, tired and inexperienced. As well, no one suggested that Kendra was anything other than a loving and caring mother who was trying to do her best, though she obviously needed a break from the family and from Gabriella by the evening of Christmas Day. To the extent that Jeanette Fitton testified that Andrew was more engaged in caring for the child and further that Kendra was essentially not up to the task, I reject her evidence as partisan and biased in favour of Andrew. The reality is that both parents loved and cared for the child. However, they were also both young, overwhelmed and struggling with the responsibility of child rearing.

[138] Returning to Kendra’s credibility, while I note that she agreed that she lied to police when she told them that she had stayed up late on the night of the 26th of December cooking and cleaning her apartment, the reality was that she went out with friends and stayed out until approximately 2:45 in the morning. She also lied to police and at the preliminary inquiry when she indicated that someone had used her phone to send certain text messages that evening, though she agreed at trial that she and a friend nicknamed “Panda” exchanged some 130 text messages on the 27th of December. It is clear that she was likely having anxiety trouble and struggling. She needed a break away from the baby and from the family. Her lies on this issue may well reflect a desire on her part to not be blamed for what she understands as bad parenting.

[139] When confronted at the preliminary inquiry, she indicated that at times she would unintentionally lie. At trial, she could not explain why she would unintentionally lie, though she suggested that it may have been related to how “when you are with someone who puts your self-esteem in the dirt”, you do not want everything to be turned around against you to make it look like you did something wrong.

[140] Kendra also admitted that when she was asked by police whether it was possible that she hurt her daughter but did not remember doing it, she replied “I hope not.” She agreed at trial that this was not an outright denial of having hurt her daughter. This admission causes me some concern, though it appears that she was likely expressing anxiety and insecurity rather than implicitly admitting to having hurt her child.

[141] I am also troubled by some external inconsistencies in her evidence. To state one obvious one, Kendra claims that when the baby was brought back to her by Andrew, she noticed that the baby was cold and pale and that when she picked up the child, the child screamed. She noted that the child was “barely breathing” and this caused her heart to sink. I find that this is likely an exaggeration, or perhaps a fabrication. While I accept that she saw that the baby was cold and pale, and perhaps that the baby cried when picked up, I do not accept that the baby was “barely breathing” or that this caused her heart to sink, so to speak. The reality is that Kendra raised no significant concern at the time, either with Andrew or her mother who was coming over to drive her to the medical appointment. It was not until later in the afternoon when she started to become concerned about the baby’s presentation. I find that this evidence was an attempt to “read back” a manifestation of symptoms to the time when the baby was first returned to her.

[142] I am also troubled by Kendra’s evidence in relation to videotaping the baby at 3:48 p.m. and 4:00 p.m. Her evidence is that by this time, the twitching that Gabriella normally exhibited had become worse. She googled it and learned that she should take a video of the symptoms, so that the video could be shown to a doctor in the event that the child was no longer exhibiting the symptoms at the time of the doctor’s visit. Around this time, Kendra is also asking Andrew what symptoms Gabriella had that morning.

[143] Notwithstanding her purported concern about the child’s presentation at the time of the videos, Kendra next decides that she needs some retail therapy and heads to Walmart with Mike Harrington and the baby. The trip to Walmart is difficult to reconcile with the taking of the videos.

[144] At Walmart it is Mike Harrington who becomes concerned about the baby’s presentation, and he googles the issue and tells Kendra that she should take the baby to the hospital. Interestingly, in her evidence before me Kendra claimed that she could not recall what Mike said to her at Walmart, and in fact could not remember much of the trip, indicating only that she had seen herself in the surveillance videos. Notwithstanding Mike Harrington’s advice and concerns, Kendra continued shopping at Walmart for approximately 45 minutes and then heads home.

[145] I find Kendra’s memory gap about what happened at Walmart to be concerning. It may be that Kendra simply does not want to admit that she kept shopping after Mike Harrington told her to take the baby to the hospital, but it may also be that she is not being candid about what happened to the baby.

[146] When Mike Harrington returns to her apartment after a side trip to his apartment to use the washroom, he discovers that Kendra has still not contacted medical help and he urges her to do so. It is not until shortly before 7:00 p.m., give or take, that Kendra starts texting her mother and Jeanette expressing concern about the baby’s presentation. This culminates with the call to Telehealth at 7:45 p.m.

[147] I am troubled by Kendra’s response in the face of these symptoms. She appears to be in denial about the baby’s condition. She is clearly reluctant to seek medical attention when it is obvious that the baby is in distress. This reluctance raises a concern that she possibly had something to do with the child’s injuries and was, perhaps, hoping that the child was going to be okay without the need for any medical intervention.

[148] When I view Kendra’s evidence as a whole in the context of all the evidence at trial, I am concerned that she may not be telling me the whole truth about what happened that day, particularly her denial of causing the injuries to Gabriella. I find that her evidence is less than objective and demonstrates a hindsight bias. She lied about features of her conduct to make herself look better in the eyes of the police and at the preliminary inquiry. While I am sympathetic to her attempts to make herself look like a better parent and her desire not to be blamed for doing things wrong, I find that these features of her evidence prevent me from accepting her denial outright.

[149] To be clear, this does not mean that I am making a positive finding that she did something to Gabriella, it simply means I am unable to accept her denial.

Conclusions

[150] When I assess this evidence globally, I come to following conclusions.

[151] Based on the evidence of Dr. Shouldice, which I accept in its entirety, the child would likely have been showing symptoms of the various injuries moments after the injuries were inflicted. It is possible that the symptoms while present were not severe and got worse over time, though it is also possible that the symptoms were severe at the outset and remained that way.

[152] Upon arrival at Kendra’s apartment at approximately 12:45 p.m., the child showed a number of symptoms that could potentially support a conclusion that she had been injured at that time. That said, those symptoms were also non-specific or otherwise explained, even when considered cumulatively.

[153] The child was pale and cold, but according to Kendra she warmed up and “pinked up” following her arrival at the much warmer apartment.

[154] The child’s arm was twitching, but the child had a twitch in her arm since birth and this did not seem out of the ordinary.

[155] The child was not feeding, but the child had been fed a formula with different water and had been recently switched from one formula type to another. The child had also been away from her mother for two nights.

[156] The child had vomited earlier that morning, though the child had a history of vomiting and there is no evidence suggesting this occasion was different.

[157] Apart from the baby appearing lethargic, Kendra’s mother did not notice anything wrong with the baby when she arrived at Kendra’s apartment. Indeed, even later in the afternoon when the baby was videotaped twitching, Kendra’s mother still did not believe there was cause for concern.

[158] While Kendra herself noted the increased twitching at around 3:30 p.m., she was not that concerned and she opted to pursue retail therapy with Mike Harrington.

[159] Dr. Shouldice could not provide precise evidence on the timing of the injuries. Indeed, she could not opine on whether the injuries were inflicted between the late evening of December 26th and noon on the 27th. The best she could say is that symptoms would have likely been present shortly after the injury was inflicted, though it was possible for the injuries to have been inflicted hours prior to the manifestation of significant symptoms. That said, she thought it would be unlikely that the child was having seizures for hours or days prior to deteriorating to the point of needing medical attention.

[160] On the evidence before me, the child is likely having seizures at around 4:00 p.m. on the 27th of December. The child’s health deteriorates significantly from that point onwards, until the call to Telehealth and the admission at Soldier’s Memorial Hospital. While I cannot say that the child’s first seizure was at or around 4:00 p.m., there does not appear to be much evidence suggesting otherwise. When Kendra first saw the child that day, she noted the usual twitching. It was only later in the afternoon when the twitching continued and worsened that she thought it might be indicative of a problem. Jeanette Fitton did not observe any twitching earlier that day, and Julie Reil did not notice any either.

[161] Based on all the evidence I find that it is possible, perhaps probable, that the child was injured prior to her arrival at Kendra’s apartment. However, it is also possible that the child simply was tired from having been moved around a lot at Christmas, was not eating that morning because of changes in her diet and was pale and cold due to the weather. In other words, there is a reasonable possibility that the child had not been injured, but rather was under the weather when she was dropped off by Andrew, Jeanette and Rex.

[162] That presentation changed significantly later that day. While it is possible that the child was manifesting symptoms of the injury that grew more severe as the day progressed, one other possible explanation is that the child was injured later that day.

[163] On the whole of the evidence, I cannot exclude the possibility that Kendra possibly inflicted the injuries, perhaps in a moment of frustration while at the door of the doctor’s office or perhaps elsewhere. What is clear is that the presentation of symptoms gets progressively worse from that point onwards, culminating in the hospital admission.

[164] On the whole of this evidence, I cannot conclude that the only reasonable inference is that Mr. Fitton caused the injuries to his daughter by assaulting her. I am also not satisfied that in view of this conclusion and the findings underlying it, there remains any basis to support a conviction for the offence of Failing to Provide Necessaries of Life.

[165] Mr. Fitton, please stand. I find you not guilty of both counts in the Indictment.

Justice J. Di Luca

Released: April 25, 2019

NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDREW FITTON Defendant REASONS FOR JUDGMENT Justice J. Di Luca

Released: April 25, 2019