COURT FILE NO.: CR-18-057 DATE: 2019/06/12 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Wood, for the Crown

• and -

D.H. D. Baker, for the Defendant Defendant

HEARD: May 21 – 24 and 27, 2019 Ellies R.S.J.

Reasons for Decision

Introduction

[1] Mr. D.H. was charged with criminal negligence causing bodily harm, failing without lawful excuse to provide the necessaries of life, and assault causing bodily harm. All of the charges related to injuries sustained by B.V., who was 28 months old at the time the injuries were sustained.

[2] The Crown contended that, while B. was left in Mr. D.H.’s care for a period of time during the evening of January 14, 2017, Mr. D.H. assaulted B. Alternatively, the Crown argued that Mr. D.H. showed wanton and reckless disregard for B.'s safety by allowing him to harm himself.

[3] The Crown also maintained that Mr. D.H. deterred B.’s mother, C.V., from seeking medical attention for B. after he was injured and was, therefore, guilty as a party to the offence of failing to provide the necessaries of life.

[4] Following counsel’s submissions, I found Mr. D.H. not guilty of all three charges, for reasons to be delivered. These are my reasons.

Overview

[5] On Sunday, January 15, 2017, at about 2:15 p.m., the Children’s Aid Society of the Districts of Nipissing and Parry Sound (the “CAS”) in North Bay received a call from Kimberly Morrow, a triage nurse at the North Bay Regional Health Centre (the “Health Centre”) about an infant that the nurse thought was in need of protection. About a half-hour earlier, the child had been brought into the emergency department of the Health Centre by his mother, her friend, and her boyfriend. The mother was crying and told Ms. Morrow that the child had been hurt. Ms. Morrow could not see the child’s head very well because he had a hood on. When the mother removed the hood, Ms. Morrow could see extensive bruising on the child’s face. The bruising was so significant that she assessed him as needing to see a nurse immediately and a doctor within 15 minutes. That child was B.

[6] Ms. Morrow took the mother, Ms. V., and B. into an examination room. There, she noted that the bruising involved both sides of B.’s head and that his head was misshapen as a result of swelling. Over the course of that afternoon and into the evening, B.’s eyes became more blackened, eventually swelling to the point of being nearly shut. Photos taken that day and the next by the police show a shocking progression by which B. went from looking like he had suffered a fall of some kind to looking like he had been repeatedly punched in the face. Fortunately, photos taken on January 20 show a remarkable improvement over the course of just five days.

[7] This case provides the best example I have encountered in my career as both a lawyer and a judge of the importance of the presumption of innocence and how hard it can be to maintain that presumption in some circumstances. After looking at the photographs taken of B., it is very difficult not to leap to the conclusion that he was badly beaten. And yet, after listening to the video-recorded statements of Mr. D.H. and the medical evidence called by both the Crown and the defence, I am not only left with a reasonable doubt about Mr. D.H.’s guilt, I am persuaded on a balance of probabilities that B. was not assaulted at all. Instead, B. suffered a relatively rare condition known as a "subgaleal hematoma", a condition which presents with severe swelling and bruising of the head and face area, which can be and probably was caused in this case by an act as innocent as combing B.’s hair.

[8] Because of the horrible way that the hematoma presented itself, police and child protection authorities quite properly reacted with concern. Things went wrong, however, and this case took a dangerous turn towards a wrongful conviction, when B.’s mother changed her story about what happened in the hours leading up to B. being taken to the Health Centre, in order to increase her chances of retaining custody of B. and maintaining access to her other children.

[9] Unfortunately, the police investigation did nothing to thwart the danger. Were it not for the careful, cautious approach taken by the medical experts involved, Mr. D.H. might well have joined the many Ontarians who have been wrongfully convicted of harming a child.

[10] This case should stand as a reminder of the lengths to which a parent will go to retain custody of her child and of the importance of a thorough, unbiased investigation by the police.

Background Facts

[11] The following background facts are taken from two video-recorded statements given to the police by Mr. D.H. over the course of approximately two hours, as well as those parts of Ms. V.’s evidence that I accept. Later, I will explain why I have rejected the other parts of her evidence.

[12] B. was born in […] 2014. His natural father is not involved in his life. Until this incident, Ms. V. was B.’s sole caregiver. The father of Ms. V.’s other two children, both older girls, is still involved in their lives. At the time in question, the girls were with their father every second weekend, including the weekend during which the offences are alleged to have occurred.

[13] Ms. V. met Mr. D.H. over the internet in 2016. Prior to the week of January 9, 2017, Mr. D.H. had been an overnight guest at Ms. V.’s home on two or three occasions. Ordinarily, Mr. D.H. lived with his mother. However, he had come to stay with Ms. V. on Tuesday, January 10, and was staying there at the time that B. was allegedly assaulted, sleeping in the same bed as Ms. V.

[14] As of January 2017, neither Ms. V. nor Mr. D.H. were employed. Mr. D.H. was employed seasonally, working only in the summers. In the winters, he mostly played video games.

[15] On Friday, January 13, Ms. V. received a call from her daughters’ school, advising her that the girls had contracted head lice and had been sent home early to their father’s residence, where they were to be staying for the weekend. Following the call, Ms. V. set about the task of delousing her house, and B.

[16] Because neither Mr. D.H. nor Ms. V. had a car, Ms. V. had to enlist the assistance of an acquaintance to get a ride to a pharmacy to buy the necessary products, which consisted of a spray for cloth items that were too large to put in a washing machine and a specialized shampoo, called “Nix”. Because Ms. V. had no money, she had to enlist the help of her mother, M.V., to purchase these products.

[17] That evening, Ms. V. and Mr. D.H. cleaned and sprayed the main floor of the house. On the advice of the pharmacist from whom Ms. V. had purchased the products, they bagged the cloth items from that floor and placed them outside, where the cold would kill the lice.

[18] The next day, Saturday, January 14, they went to work on the second floor, where the bedrooms and the bathroom were located.

[19] Between 11:30 a.m. and 2:00 p.m. that day, Ms. V. bathed B. and then shampooed his hair with the Nix shampoo. The shampoo had to be left on for a certain period of time. When Ms. V. was finished, she brought B. downstairs to the kitchen table, where she used a comb supplied with the shampoo to comb his hair. She described the comb as having more teeth than a regular comb and the teeth as having a certain curve to them. She followed the instructions that came with the comb, keeping it as close to B.’s scalp as possible and then pulling the comb upward in order to remove the lice and/or their eggs. She did this for between eight and ten minutes. Using this technique, she found six lice eggs in B.’s hair.

[20] When she was finished, Ms. V. put B. to nap in the living room because his bedroom had been treated with the lice spray and things such as the curtains and the mattress were still wet. While B. was napping, Ms. V. continued to spray other areas of the home. However, by the time she got to the mud room, she ran out of spray. She called her mother for more money to buy more and Mr. D.H. enlisted the assistance of a friend to drive Ms. V. to purchase it.

[21] By the time Ms. V. was getting ready to go out, it was B.’s bedtime. Ms. V. changed B. and put him to bed in his room. She testified that she observed no bruises or injuries of any kind on B. at that time. As I will explain, that could not be true. While Ms. V. put B. down, Mr. D.H. was busy in the girls’ bedroom, bagging up their toys and other things.

[22] By the time Ms. V.’s ride arrived, B. was still not asleep. Ms. V. testified that she could see him getting upset that she was leaving. She testified that this was something he did whenever he was separated from her, sometimes by distances as short as the distance between the living room and the kitchen of their small home. According to Ms. V.'s testimony, this may be related to the fact that B. has not developed normally. He is non-verbal. At the time of the events that lead to the charges in this case, Ms. V. had made arrangements to have B. tested for autism. This is a significant fact that was not known to the police or the CAS when their investigation into this matter began.

[23] After she left the house, Ms. V. was first taken to Walmart, where she purchased more lice spray and some Pepsi. Store surveillance video recordings show Ms. V. entering the store on January 14 at about 7:14 p.m. The videos also show her leaving the store, but do not indicate the time. Just before she left, however, Ms. V. paid for the Pepsi (the shampoo was paid for at the pharmacy) and the receipt shows that it was paid for at 7:23 p.m.

[24] Ms. V. was then driven to Little Caesar’s Pizza, located in the north end of the city, where she ordered and waited for two pizzas to be prepared. She testified that, by the time she got home with the pizzas, she had been gone between one and one-half to three hours. When she got back, Mr. D.H. told her that B. had fallen through the wooden baby gate that was installed in his bedroom door. He told her that B. was fine and that he had suffered only a small goose egg as a result of the fall.

[25] Ms. V. testified that she went to check on B., who was asleep at the time. She said she did not turn the lights on in his bedroom as she did not want to wake him. He had his blanket on and she could only see the top of his head, but he seemed fine. She testified that she checked the baby gate and it would not budge. She also said, however, that she reset it.

[26] The couple then ate their dinner. Ms. V. said that she went back upstairs after dinner and before they went to bed, to check on B. and the gate. As before, she said that B. was asleep and the gate would not budge.

[27] The couple then went to bed in the basement, as Ms. V.’s bed had been taken apart in connection with the efforts they made to rid the house of lice. This was the first time that either of them had ever slept there.

[28] Up to this point in the narrative, there is little difference between the evidence of Ms. V. and the statements given by Mr. D.H. to the police. However, they take very different directions from this point forward.

Mr. D.H.'s Statements

[29] Mr. D.H. was interviewed on two occasions by the police. Both interviews were video-recorded and both video recordings were admitted into evidence on consent. Counsel agreed that the statements were admissible both for and against the accused: R. v. Harris (1946), 86 C.C.C. 1 (Ont. C.A.).

[30] The first interview took place on January 15, the day B. was taken to the Health Centre. It was conducted by Detective Constable Wall, who interviewed Mr. D.H. that day as a witness, and not as an accused. During the interview, Mr. D.H. told Officer Wall about three falls that B. had suffered in the days before he was taken to the Health Centre. He said that the first had occurred on the Friday before. He had not seen the fall, but he was told about it by Ms. V.’s eight year old daughter, C., who said that B. had climbed up on a “table thing” in the living room and fallen off. He said that that was the first time he had seen bruising on B. Mr. D.H. said that, after the fall, there was purple behind B.’s ear and the side of his face was swollen. I do not believe he was ever asked what side of the head was injured. At different times during the interview, he motioned with his hands to both sides of his head while discussing the fall.

[31] The second fall took place while B. was in Mr. D.H.’s care the night Ms. V. went to Walmart and Little Caesar’s. Mr. D.H. said that the fall happened around 9:00 p.m. Mr. D.H. had turned his back to B. while he was cleaning up the girls’ bedroom when he heard a crash behind him. He turned around and saw B. lying on his hands and knees on top of the wooden baby gate that had been installed across his doorway. Mr. D.H. said he picked B. and the baby gate up at the same time. B. walked over to his bed and sat there while Mr. D.H. reset the gate.

[32] Afterwards, while Mr. D.H. was downstairs and while Ms. V. was still out, Mr. D.H. heard B. banging his head on the baby gate. Mr. D.H. went upstairs to calm B. down. He noticed at that point that B. had a little bump on his head.

[33] According to Mr. D.H., the third fall took place at about three or four in the morning on January 15. At that time, Mr. D.H. and Ms. V. were asleep in the basement of Ms. V.’s house at 373 L[…] Road. Mr. D.H. told Officer Wall that he and Ms. V. heard a crash and heard B. start to cry, so they ran upstairs. As they got there, they saw B. running towards the bathroom. Mr. D.H. told Officer Wall that B. “was running around causing mischief”. According to Mr. D.H., B. had opened some “shampoo stuff” before Ms. V. picked B. up and put him back in his room, after which she then put his baby gate back up. Mr. D.H. said that B. seemed fine and that he saw no swelling at that time.

[34] Mr. D.H. told Officer Wall that, the next morning, he noticed that B.’s face was swollen to the point where his ears were bent outwards. He immediately brought B.’s appearance to Ms. V.’s attention. She brought B. downstairs and tried to stop the swelling. According to Mr. D.H., Ms. V. was reluctant to call the Health Centre because she was afraid that the CAS would become involved. Mr. D.H. said that Ms. V. called her mother first, after which she decided to take B. to the Health Centre.

[35] Mr. D.H.’s second interview with the police took place on January 23, 2017 and lasted longer that his first. That day, he was interviewed not as a witness, but as an accused. He had just been arrested and charged with the offences he later faced at trial.

[36] Although Mr. D.H. had been advised by duty counsel not to say anything, he said a lot. Most of what he said, however, he had said before.

[37] Early in the interview, Mr. D.H. corrected information he had provided to Officer Wall in the first interview about the date upon which B. fell from the table, which was also referred to as a desk during the evidence. Based on the fact that B. did not attend the Family Enrichment program the day after the fall, he told Officer Wall that that incident had to have happened on the Wednesday before B. was taken to the Health Centre, and not on the Friday.

[38] Later in the interview, Mr. D.H. also provided more details about what B. was doing when they got upstairs in the early morning hours of January 15. He told Officer Wall that B. was standing at the sink, the water was running, and B. was dumping strawberry “shampoo stuff” down the drain.

[39] About halfway through the interview, Officer Wall was replaced by Detective Constable Dave Wilson. From that point forward, Officer Wilson did most of the talking. I will return to this part of the interview in my analysis, below.

Other Non-Medical Evidence

[40] Ms. V. was also interviewed by the police on several occasions. At first, she told the police much the same thing as Mr. D.H. did. In a statement she gave on January 15 at the Health Centre, she told Officer Wall about being advised of the fall from the desk on the Wednesday and about the fall through the baby gate while she was at Walmart and the pizzeria on the Friday. Importantly, she also told Officer Wall about the fall in the early morning hours on Sunday, January 15. However, that part of her story later changed.

[41] On January 19, 2017, after her first appearance in court in the child protection proceedings that followed B.'s apprehension by the CAS, Ms. V. attended at the police station and told them that she wished to recant her earlier statement. With employees of the CAS looking on, she gave a different statement. At trial, Ms. V. testified that there was never any early morning fall on January 15. She also testified that Mr. D.H. had tried to dissuade her from calling the Health Centre later that morning.

[42] According to Ms. V.'s evidence at trial, she was the one that noticed that B.'s head was swollen and bruised on the morning of January 15. In addition to calling her mother that morning, as Mr. D.H. had stated, Ms. V. also called her friend, J. L., who had a car. According to Ms. L., that was the second conversation they had that morning. Ms. L. testified that the first call happened around 11 a.m., when she called Ms. V. During that call, Ms. V. told her that B. had been hurt. Ms. L. told Ms. V. that, if it was her child, she would take him to the emergency department to have him checked out. At trial, Ms. V. said that Mr. D.H. had told her that morning that, if she called the Health Centre, the CAS would become involved and she might lose her child.

[43] During what Ms. L. said was the second telephone conversation she had that morning with Ms. V., Ms. V. told her that B. now had a fever. Ms. L. decided to forego the grocery shopping she was doing and made her way over to Ms. V.'s home. Ms. V. and Mr. D.H. were waiting at the door with B. when she got there. Ms. V. put B. in the baby seat, at which time Ms. L. got a brief look at B. She said that his head was shaped like a football. Ms. L. was quite upset by his appearance and asked Ms. V. why she hadn't called an ambulance, instead of waiting for a ride.

[44] Ms. L. drove the three of them to the Health Centre, let them out, parked, and then went in to wait with Mr. D.H. after B. and Ms. V. were taken into the examination room. Later, Ms. L. gave Mr. D.H. a ride back to the residence on L[…] Road, when he returned there to show the police and the CAS where B.'s falls had taken place.

Medical Evidence

[45] B. was admitted to the Health Centre that day and remained there until January 20. The notes of the emergency physician who examined B., which were admitted into evidence on consent, state:

He has an abrasion down his abdomen. He has got extensive bruising and swelling all the way from his right ear and his right eye, all the way around the back of his head, down across the occiput and back up to the other ear and temple. He had some bruising on his thigh, abrasions all down his stomach. When I touched his right thigh, he seemed to cry although he was crying a lot during most of the exam.

[46] The notes of the pediatrician who examined B. say:

He has very dramatic bruising particularly to head and face but many marks on many parts of body… He has very extensive bruising to the base of the head extending to the left ear posteriorly. It is entirely purple including the back of the ear and the ear is pushed forward with soft tissue swelling. The front of the ear is not bruised. There is bruising to back of the right ear as well but the swelling is not as dramatic on that side however on the anterior side of the head on the right, there is extensive soft tissue swelling and the right eye is almost swollen shut. There is bitemporal bruising and swelling across his forehead. There are some brown bruises without overlying swelling on the left cheek … There is a large area of mild abrasion and petechial rash on the anterior chest. There is (sic) a few small bruises right under the chin and a small tan bruise right under his left nipple. There are some scratches on his right foot and right thigh and there are small circular clusters of bruises on both anterior thighs. There are some linear abrasions at the base of the third, fourth, and fifth finger on the right hand on the dorsal aspect…

[47] A full skeletal x-ray was undertaken of B. on the day of his admission. It showed marked soft tissue swelling around the skull, but there were no broken bones visible.

[48] In addition, two CT scans were undertaken that day; one of B.'s skull, and the other of B.'s face. Again, there was no evidence of any fracture. However, in both scans, according to the evidence of Dr. William Hodge, the radiologist at the Health Centre who read the scans, there was evidence of something else, something quite unusual: bilateral subgaleal hematomas.

[49] A subgaleal hematoma results from bleeding between the scalp (the galeal aponeurosis) and the perostium, a layer of matter covering the skull. The unique feature about this type of hemotoma is the way it can travel around the outside of the skull, crossing the lines between the different bones that make up the skull, known as "suture lines".

[50] As a result of the observations of the staff at the Health Centre, the CAS apprehended B. and, as I understand it, somehow also prevented Ms. V. from having access to the girls. She has been trying to get B. back ever since. Unfortunately, as I will explain, she has gone too far in her efforts.

Analysis

[51] When it began, the Crown's case rested on establishing one or more of the following four facts beyond a reasonable doubt:

(1) that Mr. D.H. assaulted B. (assault causing bodily harm – count #3);

(2) that B. was injured due to Mr. D.H.'s wanton and reckless disregard for B.'s life or safety (criminal negligence causing bodily harm – count #1); and

(3) that Mr. D.H. failed to provide the necessaries of life, either:

(a) as a principal, because he did not seek medical attention for B. when B. was injured while in his care on January 14; or

(b) as a party, because he persuaded or attempted to persuade Ms. V. not to obtain medical attention for B. quickly enough in the morning of January 15 (count #2).

[52] In his closing submissions, however, Mr. Wood conceded that the Crown had failed to establish beyond a reasonable doubt that Mr. D.H. knew or ought to have known that B. required medical assistance on the evening of January 14 (para. 3(a), above). As the Crown concedes, the medical evidence was incapable of determining when the swelling and/or bruising would have been visible.

[53] In the analysis that follows, I will address the remaining three essential facts in the order in which I have listed them.

Has the Crown Proven Beyond a Reasonable Doubt that Mr. D.H. Assaulted B.?

[54] It is clear from the video-recorded interviews of Mr. D.H. that the police investigation was first focused on the cause of the horrific looking swelling and bruising that began to manifest itself on January 15. Until the Crown obtained the assistance of a medical expert, it was, as I have said, difficult to imagine that anything other than an assault could have caused it. However, in my view, the medical evidence leads to the conclusion that the most significant swelling and bruising seen on B. that day and in the ensuing days was caused either by B. harming himself, or – and I find this the most likely cause – by the thorough combing of B.'s hair by Ms. V. on January 14, as hard as that is to imagine at this stage of my analysis.

[55] While B. was still in the Heath Centre, doctors at the Children's Hospital of Eastern Ontario ("CHEO") in Ottawa were being consulted about his condition. After he was discharged from the Health Centre, B. was assessed by doctors at CHEO, including Dr. Louise Murray, a pediatrician in CHEO's Division of Child and Youth Protection. Dr. Murray was called as a witness during the trial and I permitted her to give expert evidence in the areas of pediatric medicine, in general, and child maltreatment, including the evaluation of childhood injuries, in particular.

[56] In addition to examining B. herself in April 2017, Dr. Murray reviewed the medical records relating to B.’s assessment previously at both the Health Centre and CHEO. Afterward, she prepared a report dated December 3, 2017. [1] During her examination-in-chief by the Crown Attorney, Dr. Murray adopted the contents of her report and counsel indicated on the record that the facts contained in the medical records upon which she based her opinion were agreed upon.

[57] Testing at CHEO showed that B. did not suffer from any bleeding disorder that might account for the extensive swelling and bruising with which he presented on January 15. Nor was there anything suggestive of an allergic reaction or poisoning, for e.g., to the Nix shampoo.

[58] As for the possibility that B. had a subgaleal hemotoma, Dr. Murray wrote in her December 3 report:

B. had extensive swelling of the head, forehead and periorbital areas. Based on a review of the medical information it cannot be determined with certainty if B. had a subgaleal hematoma.

[59] With respect, based on all of the evidence, medical and otherwise, I am quite certain that B. did have a subgaleal hematoma.

[60] The only witness called by the defence was Dr. Hodge. He was not particularly happy to have been taken away from his duties at the Health Centre. It was obvious that he was not testifying as a hired gun.

[61] Dr. Hodge has been a licensed radiologist in practice for over 40 years. He testified that, while they are sometimes seen in infants, subgaleal hematomas are quite uncommon. Because subgaleal hematomas are uncommon, Dr. Hodge testified that was particularly careful about arriving at a conclusion as to whether the CT scans showed the presence of any. Prior to testifying, he had reviewed the scans again and he said that he was confident in his diagnosis.

[62] Dr. Murray, on the other hand, candidly admitted that she is not a qualified radiologist. She is not in a position, therefore, to call Dr. Hodge's opinion into question based on her own expertise. The opinion contained in her report was based upon the comments of a radiologist with whom she conferred at CHEO who was never called as a witness at trial. I know nothing about the radiologist's experience or the basis for his or her opinion.

[63] More importantly, during cross-examination, Dr. Murray testified that B.'s swollen head and the bruising seen in the forehead, occipital, temporal and periorbital areas of his head on January 15 could all have been caused by a subgaleal hematoma. I believe they were.

[64] The symptoms with which B. presented on January 15 and in the days following fit very well with those described by both Dr. Murray and Dr. Hodge as being associated with a subgaleal hematoma.

[65] For one, the bruising was only just beginning to emerge when Ms. V. and Mr. D.H. brought B. to the Health Centre. Ms. L. testified that she saw no bruising, only swelling, when she was driving B. to the hospital. Nurse Morrow said that B.'s eyes became more bruised towards the evening of January 15. As I have indicated, the photos taken of B. while he was in the hospital bear these observations out. While Dr. Murray was unable to say whether swelling and bruising from a subgaleal hematoma can manifest itself as long as 24 hours after the triggering event, she did say that they can take some time to emerge and that the process is highly variable among patients.

[66] Even if one was to accept Ms. V.'s evidence, any trauma experienced by B. would have occurred at the latest just before she returned home from Little Caesar's on the evening of January 14. If one accepts Mr. D.H.'s evidence that B. did manage to knock down his baby gate and escape his room in the middle of the night, it would still have been many hours afterwards that the bruising began to emerge.

[67] Two other striking features of the bruising suffered by B. are consistent with the presence of subgaleal hematomas. One is the "racoon eyes" that began to emerge at the Health Centre. As both doctors explained, this is possible with a subgaleal hematoma because the blood is free to fill the entire cavity under the scalp, including the eyelids. The other feature is the way the bruising went exactly to the base of the neck all the way around B.'s head. Ms. V. testified that she saw no bruising in this area at first. Dr. Murray testified that bruises inflicted by trauma can take the form of the object with which they were inflicted, a fact that I will come back to shortly. I cannot conceive of any means by which the bruising I saw around B.'s neck could have been caused other than by the free travel of blood from other areas of his skull.

[68] While I am certain that B. was suffering from a subgaleal hematoma, the cause of the hematoma is less certain. As Dr. Murray wrote in her report:

Cases of subgaleal hematoma have been described in the literature in severe trauma, minor head injury, hair pulling, hair combing and hair braiding, bleeding disorders and malignancy. [Emphasis added.]

[69] I am not persuaded that B. suffered a severe trauma, at least at the hands of Mr. D.H.. There were no boney injuries of any kind visible in the x-rays or the CT scans. Although she did her best at trial not to provide any evidence favourable to the defence, Ms. V. had to admit that B. exhibited no signs of having been assaulted by Mr. D.H. when she returned home on the evening of January 14. I find it unlikely that B. would not be crying or at least stirring when she went to check on him, not just once but twice that night, if B. had been assaulted to the point of being severely bruised and swollen. To the contrary, she testified during cross-examination that he looked "quite peaceful".

[70] In addition, Ms. V. testified during cross-examination that, the next morning, she examined B. for signs of a concussion and found none. She said she checked to make sure that B. could follow her finger with his eyes, he did not seem faint, he did not vomit and he was not convulsive.

[71] More importantly, I believe that Mr. D.H. was telling the officers the truth during his interviews. My reasons are numerous. They might best be grouped together under the following headings:

Post-Offence Conduct Inconsistent With Guilt

[72] Mr. D.H. accompanied Ms. V. to the Health Centre. This is at least as consistent with his innocence as with his guilt. There is no evidence that, while he was there, Mr. D.H. tried to control the narrative as to what had happened to B. Further, according to Officer Walls, Mr. D.H. appeared to be genuinely concerned for B.'s welfare while at the Health Centre.

[73] During the first interview with Officer Walls, Mr. D.H. appeared to be concerned not that the police thought that he had harmed B., but that they would think that either Ms. V. or her daughters would hurt B. Even during the second interview, Mr. D.H. included Ms. V. and the girls in his protestations of innocence. If he had assaulted B., one would have expected him to be aware of the possibility that he might be a suspect, at the very least. Indeed, one might have expected him to try to implicate other possible suspects, rather than trying to exonerate them, as he did.

[74] Finally under this heading, Mr. D.H. willingly accompanied the police and the CAS workers to the L[…] home on January 15 to show them the areas where B. had fallen. He offered to give the police any further assistance that he could, including providing DNA fingerprint samples.

The Police Were Unable to Disprove the Truth of the Statements

[75] While he initially got the date wrong, there is no issue that B. fell from the desk in the living room during the week leading up to January 15, as Mr. D.H. told the police. With respect to the second and third falls that Mr. D.H. mentioned, the subsequent police investigation failed to disprove any of what Mr. D.H. told them.

[76] The police returned to the house afterwards to conduct informal testing of the baby gate. They set it tightly into the door frame using one of the notches on the wooden crossbar (the "sixth slot", to use the terminology employed at trial). They then tried to set it even more tightly using the next notch (the seventh slot) and it was obvious that the gate was far too wide to allow the top crossbar to be folded over the bottom one and secured using the metal loop.

[77] However, the police never tried to adjust the crossbar using the notch on the other side of the one that closed the gate tightly (the fifth slot). Given how far from closing the gate was when the police tried to expand it, I am left wondering if the gate would have seemed to fit the door snuggly when the crossbar was in the fifth slot, even if did not. I am also left wondering why the police would not have tested the gate this way. Officer Walls was asked about this during his examination-in-chief by the Crown. His answer was far from satisfying:

Q. Oh, and I guess just to recap the end of the last one, so what we saw there was it was back into the sixth slot? A. Yes. Q. And it – how was the fit there as far as your recollection of what you saw? A. It was – it was fit well and it was unable to be knocked down. Q. Okay. I guess you folks didn’t try the fifth slot, eh? A. The fifth slot, I’m not sure if they would – it - it probably – I – as far as I would know, it wouldn’t be able to stay up on its own, it would be too loose.

[78] During their investigation, the police also laid the baby gate down in roughly the same position that it might have been if B. had knocked it down. They took a photo of the gate on the hallway floor, not far from a solid pine chest that was located near it. Officer Walls testified that, by doing this, the police were demonstrating that B. could not have hit his head on the edge of the pine chest. However, although one of the officers apparently measured the distances, presumably from the pine chest to the top and/or the bottom of the gate, none of those measurements were introduced into evidence. Nor were we ever told exactly how tall B. was upon his admission to the hospital. Ms. V. testified that B. was tall enough that the top of the baby gate came up to about his armpits. Given this evidence, it is not obvious to me from the photos that B. could not have hit his head on the pine chest, especially if he was pushing hard on the gate before it gave way and his momentum carried him forward.

Ms. V. is Not Credible about the Events of January 14 and January 15

[79] Ms. V. testified that the baby gate in B.'s room had been installed in July 2016 and had never been removed. I do not accept her evidence about this. I do not believe that she would have left the gate up during the day on January 14, when she was washing the floor of B.'s bedroom, as she said she did. It makes no sense that she would step over the gate to get into the room and have to work over it to rinse her mop, rather than just removing the gate. Nor does it make sense that she would feel the need to check the gate more than once that night, if it was so solid.

[80] Ms. V. also said that she reset the gate that night. If the gate was solid when she checked it, it is hard to understand why Ms. V. would have reset it.

[81] I also do not believe Ms. V.'s evidence that B. never escaped from his room in the early morning hours of January 15. Ms. V. told her mother on the phone that morning about the incident. She also told Ms. L., Nurse Morrow and the police about it that day. Even during her "recantation" on January 19, she told Officer Boissoneault that she was "pretty sure" that she went upstairs in the early morning hours of January 15.

[82] Her explanation for these previous inconsistent statements was also not credible. She testified that she did not understand that she was only supposed to tell the police what she herself actually remembered, rather than what Mr. D.H. told her.

[83] Finally under this heading, based on Ms. V.'s evidence, there is no explanation as to how the strawberry body wash or shampoo ended up on B.'s clothing the next morning.

B. Had Broken Through a Baby Gate Before

[84] While there was no evidence that B. had ever broken through the gate to his bedroom, there was evidence that he had broken through another baby gate not long before the night of January 14.

[85] Ms. V. had placed a baby gate downstairs across the entrance to the living room from the main hallway that lead to the kitchen. The living room is the area in which B. fell from the desk. The gate downstairs was different than the one upstairs. Both were entered into evidence as exhibits. The downstairs gate is made of metal. It appears to be capable of expanding to fit a wider door frame than the one upstairs and does so using a different mechanism than the crossbars that fold over one another used in the wooden gate.

[86] As I mentioned, B. would get upset whenever he was separated from Ms. V., even if only by the distance between the living room and the kitchen. Ms. V. testified that, when he did, B. would knock that gate down in one of two ways. In one, he would move the desk, which was on wheels, over to the gate and use it to pry the bottom of one end of the gate free from the wall. In the other, he would shake the top of the gate back and forth until it finally gave way.

[87] Ms. V.'s mother testified that B. had knocked the metal baby gate down while she was visiting her daughter at Christmas.

[88] Ms. V. admitted that B. was getting upset to see her leaving the night she went out. His behaviour in shaking the wooden gate to his bedroom is entirely consistent with his behaviour surrounding the metal gate. It would appear, however, that the evening of January 14 was the first time that B. succeeded at knocking down the wooden gate.

Mr. D.H.'s Demeanor

[89] Finally, while the demeanor of a witness is a poor indicator of whether they are telling the truth, it is a factor to be considered, nonetheless: R. v. Norman (1993), 16 O.R. (3d) 295 (Ont. C.A.). Mr. D.H. appeared to me to be telling the truth when he spoke to the police. He was in tears at the beginning of the second interview, obviously upset that the police would think he would harm B. He told the police that he had hoped that the doctors at CHEO would have figured out by then that it was an accident.

[90] Even though he had been advised by duty counsel not to say anything before his second interview, Mr. D.H. still tried to explain to Officer Walls exactly what had happened in the days leading up to B.'s admission to the Health Centre. His evidence about the way the baby gate came down while he was home alone with B. had the ring of truth. B.'s behavior in getting up and sitting on the bed while Mr. D.H. reset the baby gate is consistent with B. being surprised that he could actually knock this gate down, as he had knocked the other one down before.

[91] Mr. D.H.'s evidence that B. knocked the baby gate down again that night is consistent with his evidence about what happened earlier and with that of Ms. V., at least in some respects. B. did not like to be separated from Ms. V. This was the first time that Ms. V. had ever slept in the basement, instead of in her bedroom on the same floor as B.'s. It makes sense that B. might become agitated if he woke up and realized that Ms. V. was not upstairs.

[92] Mr. D.H. also provided credible evidence as to exactly what B. was doing when he escaped his room in the early morning hours of January 15. He gave details about what B. had taken out in the bathroom and how he had to clean up the water on the floor after B. had been put back to bed. These details also had the ring of truth to them.

[93] Mr. D.H. even admitted that he had told Ms. V. that he would take the fall for things because he did not want her to lose her children. While I accept that his offer might be interpreted as the act of a guilty man, his admission can also be interpreted as the act of an honest one.

[94] The Crown reminded me in his submissions during the trial that Mr. D.H. had never been cross-examined on what he says happened. That is true. However, he was interrogated by Officer Wilson during his second statement in a way that few cross-examiners would ever be permitted to question a witness. Officer Wilson both confronted Mr. D.H. and cajoled him. He began the interview by telling Mr. D.H. that he was being untruthful. Later, he attempted to appeal to his sense of decency by telling him about a wonderful mother who had struck her child once in circumstances that made her act nearly forgivable. None of it worked. Mr. D.H. continued to insist that what he was telling the police was true.

[95] I do not wish to insult Mr. D.H. in any way, but he did not appear to me to be any match in a battle of wits with Officer Wilson. He did not stick to his story because he outsmarted the experienced police officer. I believe he stuck to it because it was the truth.

[96] For all of these reasons, I accept the truth of the statements Mr. D.H. made to the police. Because I accept his statements, and because of the other evidence to which I have referred, I am not persuaded that the subgaleal hematomas were caused by Mr. D.H. assaulting B. I am certainly not satisfied of that fact beyond a reasonable doubt. I will comment on the other two possible causes of the hematoma referred to by Dr. Murray in her report – minor trauma and hair combing – when I deal with the charge of criminal negligence. I turn now to the other injuries suffered by B. and whether I am satisfied beyond a reasonable doubt that any of them were inflicted intentionally by Mr. D.H..

[97] In addition to bruising and swelling of the forehead, as well as the temporal, the occipital and the periorbital areas of the skull, there were other marks and bruises visible on B. when he was brought to the Health Centre. These have been set out above. With respect to these other bruises, Dr. Murray wrote (p. 8):

On January 15, 2017, B. had a number of bruises in different planes of the head and body. This suggests multiple points of impact (i.e. one point of impact does not explain all the bruising).

[98] Later, she wrote (p. 9):

A subgaleal hemorrhage could explain B.’s swelling [of the head], but it would not explain the bruises on the cheek and other parts of the body seen in multiple planes.

[99] I accept Dr. Murray's opinion. However, there is nothing in her opinion that forecloses the possibility that Mr. D.H. is telling the truth. I will start with the bruise on the cheek.

[100] The bruise on B.'s left cheek is consistent with the evidence surrounding his fall off of the desk. Photos of the desk show it as being roughly the height of any ordinary desk, the top being perhaps 30 inches from the ground. The photos also show that the living room in which the desk was located had wooden floors. Mr. D.H. told the police that he had seen "massive bruising" on B. after he was told of the fall. Ms. V. also said that she saw an injury to B.'s left ear and the left side of B.'s head after being told about the fall by her daughter, C.

[101] Ms. V. testified that B. was still tender in that area when she was using the Nix comb a number of days later. I got the impression from her evidence at trial that she was trying to play down the extent of the bruising caused by this fall, perhaps to make her look like a better parent. However, I infer from the fact that the Health Centre staff later found four lice eggs in that area, and that area only, that B. was still so tender there on the Saturday that Ms. V. could not do as thorough a job with the comb in that area as she did in the other areas of B.'s scalp.

[102] In fairness to Dr. Murray, while she had been told about B. falling off a desk (see p. 7), she had not been provided with evidence of the injuries seen by Mr. D.H. and Ms. V. immediately after the fall, as far as I can tell from her report. Further, the information provided to Dr. Murray about when the fall occurred included "2 days before presentation, 4 days before presentation or 2 weeks before". Perhaps that is why she did not comment on whether the fall from the desk could have caused the bruising on the left cheek.

[103] Dr. Murray was particularly concerned about the bruises on B.'s thighs. She wrote (p. 8):

The anterior thigh bruising is the result of trauma. It is my opinion that the anterior thigh bruising is very unusual given the location, size of some of the bruising and clustering of bruising. It is not a pattern of bruising that is in keeping with normal activity.

[104] I believe that the bruising on B.'s thighs is also consistent with Mr. D.H.'s statements that B. knocked the baby gate over twice. In fact, the pattern of those bruises is one of the reasons why I believe Mr. D.H.'s evidence about this.

[105] The baby gate in question consists of a wooden frame covered with a white plastic "mesh". The mesh is made up of small round circles, about an inch or so in diameter. That mesh was on the side of the gate facing B.'s room. The folding crossbars that I referred to earlier are on the other side of the mesh.

[106] As I mentioned, Ms. V. testified that B. was tall enough that the top of the gate arrived at roughly the level of his armpits. She also testified that B. would most likely have been dressed in a t-shirt and his diaper on January 14, because he was most comfortable naked. If B. shook the top of the gate with enough force to cause it to fall into the hallway, the skin on his legs would have come into contact with the circles of the plastic mesh. Behind the mesh, at roughly B.'s thigh level, would have been the crossbars.

[107] Dr. Murray was cross-examined about this possibility at trial. Understandably, she was cautious about concluding that the bruises were caused by the mesh. She was reluctant to reach that conclusion based only on the photographs. However, as Dr. Murray noted in her report (p. 8):

Patterned bruises most commonly result from impact with an object of the same or similar shape and may take on the positive (e.g. imprint of a shoe sole from impact with a shoe) or negative (e.g. parallel linear lines representing the spaces between fingers from impact with a hand) imprint of the object.

[108] I am confident in stating that the photos do show that the bruising is located at exactly the same height on each thigh, roughly where the crossbars would have been had B. been lying on top of the gate. Dr. Murray never commented on this. I agree that it is more difficult to see the pattern of the bruises themselves in the photographs. However, as noted above, the pediatrician caring for B. at the Health Centre, who had a first-hand opportunity to observe them, noted the presence of "small circular clusters of bruises on both anterior thighs."

[109] In my view, the thigh bruises were most likely caused by B. falling on the plastic mesh of the wooden gate, just as Mr. D.H. said he did.

[110] With respect to the abrasions noted on B.'s chest, the outpatient notes made by Dr. Murray of B.'s visit to CHEO in April 2017 state:

The chest is a less common [area] for bruising through normal play but is non-specific in an active child.

[111] Nothing in Dr. Murray's report or her evidence at trial forecloses the possibility that the marks on B.'s chest were caused by his fall on the baby gate. The same is true of other injuries, as well. For example, the pediatrician at the Health Centre noted a few small bruises under B.'s chin and linear abrasions at the base of the third, fourth and fifth fingers on the dorsal (back) aspect of his right hand. These are not inconsistent with B. falling forward when the gate gave way, hitting the floor with his chin and the fingers which would have been wrapped around the top rail.

[112] With respect to the other bruising, Dr. Murray wrote elsewhere in her report, when discussing bruising in general (p. 7):

Bruises are common in childhood and usually result from minor trauma (e.g. bumps and falls) during routine active play (i.e. normal childhood bruising).

[113] As I indicated earlier, I believe Mr. D.H.'s version of what happened while he was alone with B. However, even if I did not, the rest of the evidence falls short of proving beyond a reasonable doubt that he assaulted B.

Has the Crown Proven Beyond a Reasonable Doubt that B. Was Injured Due to Mr. D.H.'s Criminal Negligence?

[114] Ordinarily, I would not be required to go beyond the conclusion that I have just expressed. However, the Crown submits that, if I am not satisfied that Mr. D.H. assaulted B., then I should be satisfied beyond a reasonable doubt that he showed a wanton and reckless disregard for B.'s safety by allowing him to bang his head on the baby gate to the point at which he was injured.

[115] This submission is based on Mr. D.H.'s statement to the police. Mr. D.H. told Officer Wall that, after B. fell on the baby gate and Mr. D.H. put the gate back up, he went downstairs. While he was down there and before Ms. V. returned home, he heard B. banging his head on the gate. According to the Crown, he said that he allowed this to go on for 5 to 10 minutes.

[116] Mr. D.H. told the police that banging his head on things was something B. did whenever he was discontent. Ms. V. admitted in her testimony that B. would bang his head on things whenever he was frustrated. Like the rest of her evidence, though, she tried not to say anything that might help the defense. She said that B. would bang his head on things like the wall or the floor – even a concrete floor – but not on the baby gate.

[117] Ms. V.'s testimony is not only implausible, it is contradicted by what she told the police. On January 15, she told Officer Wall that B. banged his head on the wall, the floor, the couch, and the gate. Further, Ms. V. also told the police that she heard B. banging his head on something as she was getting ready to leave for Walmart. She adopted that statement at trial.

[118] The evidence establishes that it was common for B. to bang his head on things when he was upset. Based on that evidence, it would not be surprising if Mr. D.H. did not react strongly to what he heard. Ms. V., B.'s primary caregiver, did not see fit to react to what she heard as she was leaving. But Mr. D.H. did react. As he told the police, he went upstairs to calm B. down. There is no evidence that he allowed B. to continue to bang his head on the gate afterwards. In my view, waiting for 5 or even 10 minutes in these circumstances would not amount to a wanton and reckless disregard for B.'s safety.

[119] In any event, I am not satisfied beyond a reasonable doubt that the bruising on B.'s head was caused by him banging it on the gate. Ms. V. testified that B. had been banging his head on things as hard as walls and floors since the summer of 2016. However, he had never suffered bruising of the type observed on January 15. It is hard to conclude that the wooden gate would cause the subgaleal hematoma when the walls and floors had not.

[120] The one thing that had not happened to B. before, however, is a Nix combing. I infer this from the evidence of Ms. V. that she called her mother on the day she found out the girls had been infected with lice because her mother was a pharmacy technician. She needed advice as to what to do.

[121] The Crown argues that it defies common sense that a mere hair combing could cause subgaleal hemotomas. However, as Dr. Murray stated in her report, the medical literature shows that subgaleal hematomas can result from mere combing of the hair. And this was no mere combing of the hair. The comb had more teeth, it was drawn as tightly as possible to the scalp, and it lasted a lot longer than a normal hair combing. This might also explain why there were bitemporal hematomas. It certainly does not seem inconsistent with them. Nor is it inconsistent with the fact that no underlying fractures were seen.

[122] I am not satisfied beyond a reasonable doubt either that the bruising was caused by B. banging his head on the wooden gate, or that Mr. D.H. was criminally negligent in allowing him to do so.

Has the Crown Proven Beyond a Reasonable Doubt that Mr. D.H. Dissuaded (or Attempted to Dissuade) Ms. V. From Seeking Medical Attention for B.?

[123] I can dispose of this allegation more briefly than the others because it depends entirely on the evidence of Ms. V.

[124] I have already set out most of the reasons why I do not believe Ms. V.'s evidence about the events that took place after she and Mr. D.H. went to bed on January 14 and before they got to the hospital on January 15. There are others.

[125] Ms. V. never told Ms. L. that Mr. D.H. tried to dissuade her from going to the hospital. Contrary to the submissions of the Crown, I do not believe that she told her mother that. Nor did she tell Officer Wall that when he interviewed her on January 15.

[126] Ms. V. testified that Mr. D.H. was telling her that the CAS were going to take away her kids while they were in the car on the way to the Health Centre, but Ms. L. did not corroborate this evidence.

[127] If Ms. V. was reluctant to take B. to the Health Centre for fear of the CAS, I find that she was reluctant because of her own experience, not because of anything Mr. D.H. said. She admitted that her sister had called the CAS on her several times before and that she was afraid of the CAS taking her children away. This is borne out by Mr. D.H.'s statement to the police that Ms. V. did not want to bring B. to the family enrichment program after his fall from the desk because of the bruising on his head. For the reasons I have given, I believe Mr. D.H..

[128] For these reasons, I am not at all satisfied that Mr. D.H. dissuaded or attempted to dissuade Ms. V. from seeking medical attention for B.

Conclusion

[129] What happened to B. was a tragedy, but it was not a tragedy that resulted from any criminal act. What was criminal was the way Ms. V. implicated Mr. D.H. in order to make herself look better in the eyes of the CAS and to get her son back.

[130] Ms. V. has admitted that she lied about the events of January 15. She pleaded guilty to obstructing the police in their investigation of this matter. The irony is that she lied about what she lied about. She did not mislead them when she told them on January 15 that B. had escaped his room in the middle of the night and when she failed to tell them that Mr. D.H. had attempted to dissuade her from seeking medical assistance for B. She misled them when she later told them the opposite.

[131] But what Ms. V. did, she did to get her son back. Mr. D.H. admitted that he was prepared to do the same thing for the same purpose. This is an indication of the power the CAS can wield.

[132] While Ms. V. may not be an honest person, nothing in the evidence suggests she is an unfit mother. It is not my place in these criminal proceedings to comment on the merits of the child protection proceedings. However, if it is not too late, I sincerely hope that the authorities will read this decision and that it may influence them in their position. Otherwise, the tragedy may only get worse.

Ellies R.S.J.

Released: June 12, 2019

[1] The report is addressed to Katherine Nicholson, who was not identified during the evidence. I am assuming that she is B.’s family physician.