Court File and Parties

COURT FILE NO.: CNJ9611

DATE: 2021-03-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. K.

BEFORE: Mr Justice Ramsay

COUNSEL: Sydney Mclean for the Crown; Phillip Millar for the accused

HEARD: February 22 to March 12 and March 22 to 30, 2021

This endorsement has been redacted to remove any information that could identify the victim.

ENDORSEMENT

[1] The accused is charged with aggravated assault on the victim, his two-month-old son, who was admitted to the local hospital on December 1, 2017 with serious injuries. The issues are whether the Crown has proven on the criminal standard:

1. Whether the child’s injuries were the result of intentional application of force; and

2. If so, is it the accused who applied the force?

[2] The child’s injuries amount to maiming within the meaning of s.268 of the Criminal Code: R. v. McPhee, 2018 ONCA 1016.

[3] The mens rea required for s. 268(1) of the Criminal Code is the mens rea for the offence of assault and objective foreseeability of bodily harm: R. v. Vang, 1999 CanLII 2310 (ON CA), [1999] O.J. No. 91 (C.A.).

[4] The child is a twin. He and his sister were delivered by Caesarian section on September 26, 2017, five weeks early at the general hospital one county over from their home. They weighed 4 lb 11 oz and 3 lb 11 oz at birth, respectively. They were sent home from the hospital two weeks later. They were living with their parents and their four-year-old brother. They were feeding well and gaining weight. The victim went to the doctor with a cough and hoarseness in October.

The Crown’s case

[5] On December 1, 2017 at about 11 o’clock in the morning the victim’s mother went to the chiropractor, leaving the twins in the care of the accused. While she was out, the accused texted her to say that the victim was crying and that she should not delay her return. She returned in the early afternoon and fed the children. They went out with her for a walk and to pick up the twins’ four-year-old brother from school. After dinner, the mother went out to the post office. Shortly thereafter the victim stopped breathing. The accused called the mother at 7:38 pm. She did not pick up. He called her again at 7:39. She called 911. Ambulance, fire and police were dispatched at 7:41. The mother drove straight home, staying on the line with the dispatcher. When she arrived at home, the dispatcher told her how to commence CPR. At one point the child threw up. The dispatcher told the parents that they were doing the right thing by clearing the vomit. The parents gave inconsistent accounts about their rescue efforts, perhaps due in some part to the mother not distinguishing between CPR and chest compressions. The accused did say that he applied a couple of chest thumps to clear the vomit. That could have caused the acute rib fracture that was later found. All the other bone fractures occurred before the child’s collapse.

[6] The fire department arrived and found that CPR was not in progress. The fire department started chest compressions and rescue breathing and hooked up the automatic external defibrillator. It analyzed the child’s rhythm two or three times and advised no shock. The fire department continued chest compressions, about 100 beats a minute with two fingers on the chest between the nipples. Ambulance arrived and took over care of the child. They found a pulse, but no breathing. They did not perform chest compressions, but they continued assisted breathing through a bag valve mask. They transported the child to the local hospital.

[7] When the extent of the child’s injuries began to become known, he was sent to McMaster Hospital in Hamilton. He left the local hospital at about 1 am, now December 2.

The injuries

[8] The child was diagnosed with the following injuries:

a. Ribs and clavicle

i. Healing fracture of the left clavicle with “exuberant” (i.e. big) callus formation.

ii. Healing fractures of the left anterior 4th and 5th ribs.

iii. Healing fractures of the left anterolateral 6th, 7th, 8th and 9th ribs.

iv. Healing fracture of the left posterior 3rd, 4th, 5th, 10th and 11th ribs.

v. Healing fractures of the right anterior 4th, 5th and 6th ribs.

vi. Healing fracture of the right anterolateral 7th rib.

vii. Suspicion of healing fracture of the right anterior 8th rib.

viii. Acute fracture of the right lateral 10th rib.

b. Limbs

i. Metaphyseal fracture of the left distal femur.

ii. Metaphyseal fracture of the left proximal tibia.

iii. Healing fracture of the right distal radius.

c. Eyes

i. 360 degrees of multilayer retinal haemorrhages to the right eye that were too numerous to count.

ii. Haemorrhages to the left eye.

d. Abdomen

i. Lacerations to the liver and spleen.

e. Head/Brain

i. Extensive subdural haemorrhage.

ii. Blood within the left temporal parietal lobe; and

iii. Diffuse loss of white cell matter in keeping with widespread brain ischemia.

[9] The child is severely developmentally affected. He cannot see, walk or talk. He retains the ability to breathe and, thanks to his mother’s care, to swallow. He will never get better.

The four-year-old brother’s hearsay statement

[10] In a videotaped statement made on December 4, 2017 the four-year-old said that sometimes his father squeezes the babies when he gets mad at them.

When my daddy is mad at the, he just squeezes them so much. … not as much as you’re squeezing a melon.

… when he is holding [the twin sister] and [she] starts crying so, so, so much, he squeezes her how he is hurting her. And sometimes he’s also squeezes them like this on their hips. … a long time ago. …

Q. What happens when the babies are squeezed?

A. They cry more and more. …

I sawed him five times doing that to [the babies].

Q. And what is he saying to the babies when he does this?

A. Uh, stop crying, stop crying, stop crying.

The victim’s assessment, treatment and diagnosis

[11] My reasons are not supposed to include a data dump: Welton v. United Lands Corporation Limited, 2020 ONCA 322. For that reason, my summary of the medical evidence does not reflect the great detail in which it was presented by eight expert witnesses.

[12] The child was referred to Dr Kathleen Nolan of the Child Advocacy and Assessment Program at McMaster Hospital in Hamilton. Physical examination, blood tests and imaging revealed the injuries. The injuries immediately suggested inflicted trauma. Dr Nolan instituted an extensive series of tests and referrals before making a final diagnosis. She consulted doctors at McMaster and, at the request of the mother, made referrals to the Hospital for Sick Children in Toronto.

[13] The Crown called Dr Nolan and four other expert witnesses:

• Dr Nina Stein, a paediatric radiologist

• Dr Andrew Howard, a paediatric orthopaedic surgeon

• Dr David Callen, a paediatric neurologist, and

• Dr Alex Levin, a paediatric ophthalmologist from Rochester NY who used to work at the Hospital for Sick Children in Toronto.

[14] They testified that no medical condition explains the victim’s injuries, including bone disorder, stroke and infection. Tests taken before antibiotics were administered ruled out significant infection, as does the fact that he did not get sick and die from disease after the minimal antibiotics that he was given. The diffuse brain injury does not follow the vascular territory, i.e. the pathways of blood vessels, and does not look like a stroke. By exclusion, they attribute the injuries to inflicted injury, by which they mean intentional or accidental application of force beyond what is normal in child care. Dr Nolan gave this opinion “to the highest degree of medical certainty.”

[15] They consider that the fact of multiple injuries to multiple systems supports their opinion. I agree, but only to the extent that it refutes accident. With respect to whether injuries were inflicted or had a medical cause, I am not sure how the probabilities work.

Defence medical evidence

[16] The defence called three expert witnesses:

[17] • Dr Joseph Scheller, a paediatric neurologist from Baltimore,

[18] • Dr Charles Hyman, a paediatrician from California, and

[19] • Dr Jane Turner, a forensic pathologist from St Louis who used to work at McMaster.

[20] They testified that infantile rickets or some other bone disorder was not excluded. They also said that the brain injury was the result of a stroke that led to seizures. A seizure stopped the child’s breathing. The underlying cause of the stroke could have been infection that caused coagulopathy, specifically a tendency for the blood to clot in a disorganized way, which could bring both clotting and haemorrhage.

Other defence evidence

[21] The mother was called as a Crown witness, but it is convenient to summarize her evidence here. I did not find her to be a credible witness. She attempted to obstruct the investigation by

• throwing a tantrum to intimidate the child protection worker when, in January 2018, The child’s new, undetermined red marks were going to be x-rayed,

• making an unfounded complaint to the College of Physicians to intimidate Dr Nolan,

• watching with the four-year-old as he reviewed his videotaped statement, and talking to him about it and

• abusing Crown disclosure in order to obtain a copy of the video, when it had been explained to her by an independent witness support agency that she and the four-year-old could not watch together because they were both witnesses.

[22] I do accept that part of her evidence in which she says that she did not harm the victim. That part of her evidence is supported by the observation of the volunteer who visited her and by her general conduct throughout, which is to be protective of the children. It is also supported by Dr Di Gravio’s evidence. He is the child’s physician and he testified about the mother’s devotion to taking care of the child.

[23] The accused testified. He denied ever harming the child. He said that while the twins were work, they were easier babies than the four-year-old had been. He did not have trouble controlling his temper and he did not have problems coping with the twins.

[24] His account has to be weighed in the light of brief excerpts from the two interviews he gave to the police. He told the police that he had slapped the victim through his diaper a couple of times in frustration. He demonstrated the slap to the detective. He explained that today, after three more years of English he would use the word “pat” rather than “slap.” I am prepared to accept that, but I still do not understand it. It was not a very hard slap, but it was not one that you would expect to be administered to a two-month-old baby. The accused also spoke of knowing when he was “near my limit.”

[25] The accused chose to testify in English without an interpreter. To me, from the brief excerpts I saw of his statements, his English was quite good three years ago. Then, as now, he had mastered English grammar and sentence structure and expressed himself fluently. His vocabulary has grown. I do not think that anything turns on the words he chose. He never expressed difficulty in understanding. In fact, he has a good grasp even of nuances in English. He was quite right to say that “harm” has a broad meaning and that while “a couple” literally means two, it is used loosely to mean three or more.

[26] In his testimony the accused made some important admissions:

• He patted the child’s backside in frustration, only once as he remembers. He was not frustrated with the child, but with himself for being unable to soothe him. The patting would have been intended to calm them both. To me, none of this makes any sense.

• He raised his voice at the child in frustration. I find that remarkable and concerning.

• He was short on sleep.

• The babies often, but not always, were unhappy when their mother left the house.

• He never “loses it” (i.e. control of himself) because he knows what to do when he is on the edge. I take from this that he is admitting that he has been “on the edge.”

[27] The accused testified that instead of calling 911 directly, he called his wife to tell her to call 911. He thought it was most important that she know, given the seriousness of the situation, i.e. that the child was in danger of his life. I find that odd, but what strikes me more is that when he could not reach his wife the first time, he tried again rather than call 911. The first attempt took place at 7:38 pm and the second at 7:39. The phone does not record time of day to the second, so the calls were not necessarily a minute apart. A few seconds is more probable. Still, I find his explanation for making two attempts to call his wife rather than 911 when the child was not breathing to be baffling.

[28] The admissions made by the accused are inconsistent with the proposition that he did not have much trouble with the child. To me they undermine his credibility as a witness.

Circumstantial evidence apart from the injuries

[29] Apart from the medical evidence, the relevant circumstantial evidence includes the following:

• The family keeps an orderly house. The children get fed and the older brother gets to school. The condition of the house does not speak of people who are having difficulty coping.

• There is no hint of mental illness or drug addiction.

• The child had no significant external bruising and no observable neck injury.

• On the other hand, the accused made two attempts to call his wife when the child stopped breathing rather than call 911 for immediate help. That could support the contention that he was averse to state intervention unless it was absolutely necessary because he did not want to account for something.

Assessment of expert evidence

General principles

[30] The accused is not obliged to explain the child’s injuries or to prove that they were not inflicted. At most he has an evidentiary burden to offer some plausible alternative to the Crown experts’ conclusions or run the risk of being convicted.

[31] I have directed myself that as with any witness, I may believe all, part or none of the opinion of an expert witness. I should consider the education, training and experience of the expert, the reasons given for the opinion, the suitability of the methods used and the rest of the evidence in the case when I decide how much or little to rely on the opinion. If the expert assumed facts that I do not find to be the case, I may find the expert’s testimony less helpful.

[32] Forensic medicine has an unhappy history with child abuse. The Goudge inquiry revealed much about the danger of relying on experts who are not accountable to peers and who testify beyond the area of their expertise. Dr Nolan, for one, explicitly recognized this and accepts these principles.

[33] Theories based on contested science have resulted in wrongful convictions. For example, experts used to testify that the so-called triad (subdural haematoma, retinal haemorrhage and hypoxic-ischemic encephalopathy) was diagnostic of inflicted injury by itself. Dr Nolan does not accept that theory and did not apply it in coming to her conclusions. She did, however, opine that a brain injury such as The child’s could result without evidence of impact or neck injury. That opinion was still being debated at the time of the Goudge report, and as far as I can tell, is yet: Goudge report, vol. 2, pp. 69-70. Dr Nolan also said that internal neck injury could be present but invisible to diagnostic imaging.

[34] There are consensus statements that have been accepted by the American Academy of Pediatrics and similar associations in other countries. Consensus, however, is not science, as Galileo could have told us.

[35] Intentional application of force is a finding of fact, not a medical diagnosis. Medical science cannot be expected to prove a historical fact. The event cannot be repeated experimentally. Medical science can, however, help us to eliminate medical causes for observed injury. For the doctors, intentional infliction is a diagnosis of exclusion. If it is not anything else, it could be assault. I do not think that the level of suspicion or degree of certainty of the expert is helpful. Rather it is what the opinion is based on and the expert’s knowledge, experience and training.

[36] I have to assess the medical evidence in the light of all the evidence.

The Crown’s experts

[37] I summarize the Crown’s experts in Dr Nolan’s words:

[The victim] presented at nine weeks of age following an episode of apnea at home. He was found to have extensive subdural hemorrhages, severe ischemic brain Injury, bleeding within the brain, too numerous to count multilayer retinal hemorrhages in the right eye, a liver laceration, a splenic laceration, numerous healing rib fractures, metaphyseal fractures of the left femur and tibia, and a healing fracture of the right radius. No accepted medical condition has been described to account for [his] injuries either alone or in combination. There is no reported history of any episode of accidental trauma which could plausibly account for any of these injuries. As such, the only remaining plausible explanation, to the highest degree of medical certainty, is that [he] experienced multiple episodes of significant inflicted trauma.

[38] Dr Nolan’s conclusions are supported by Dr Stein with respect to radiology. With respect to bone disease they are supported by Dr Howard. With respect to brain injury they are supported by Dr Callen. And with respect to retinal haemorrhages they are supported by Dr Levin.

The defence experts

[39] The defence evidence can be summarized in Dr Turner’s words:

It is my opinion that the twins … had clinical, radiologic and laboratory evidence of metabolic bone disease, most likely infantile rickets. Their risk factors included twin pregnancy, breast feeding, and likely maternal deficiency. In the absence of supportive cutaneous and soft tissue injuries as well as internal thoracic traumatic organ injury, it is also my opinion that there is no evidence of abusive, inflicted traumatic injury in these infants. I hold these opinions within a reasonable degree of medical certainty and based upon both the medical evidence and medical literature.

Furthermore, the clinical findings, laboratory test results, and radiographic studies of [the victim] provide medical evidence that he was seriously ill from pathophysiologic processes unrelated to and unsupportive of a diagnosis of abusive trauma. [His] presentation is attributed to natural disease; specifically, complications of vitamin D deficiency predisposing him to a serious infection. The infection caused him to develop sepsis and consequent coagulation disorder (DIC) resulting in CSVT and massive stroke. The CSVT caused [him] to have a subdural hematoma and retinal hemorrhages. It is my opinion that there is no evidence of abusive head injury in [the victim].

[40] Dr Turner’s conclusions with respect to bone disorder are supported by Dr Hyman. With respect to the brain injury Dr Turner is supported by Dr Scheller.

Brain

[41] Dr Callen and the other Crown experts conclude that the injury is only consistent with acceleration and deceleration forces even without visible neck or head injury.

[42] In Dr Callen’s opinion, the diffuse brain injury does not follow the vascular territory, i.e. the pathways of blood vessels, and does not look like a stroke. No one at the local hospital, McMaster or the Hospital for Sick Children who looked at imaging saw any blood clot in the child’s brain.

[43] Dr Callen pointed to a large sub-galeal swelling (goose egg) on the child’s head that was found on December 3 but was not present on December 2. I find it hard to imagine, though that it resulted from an impact that occurred on December 1.

[44] The child’s retinal haemorrhages were asymmetrical. I do not see any reasonable explanation for an application of force to cause haemorrhage on one side but not the other, since the eyes are fixed in the skull. Dr Nolan explained that asymmetrical haemorrhage could result from a twisting motion. I thought that was a stretch. I find it unlikely that such a thing happened. Dr Levin agreed with Dr Nolan on this point. I found Dr Levin to be well qualified, but overstated. Dr Scheller’s view that the retinal haemorrhages were caused by backup in the venous system seems much more obvious.

[45] Dr Callen testified that the child’s brain damage did not follow any vascular territory. That is, it did not appear to block blood flow downstream from an artery, upstream from a vein, or in the watershed area between the arteries and the veins. Therefore, it does not resemble a stroke. However, the way to detect a stroke is an angiogram, which is an x-ray or CT with contrast. This test was not performed.

[46] I found Dr Scheller to be impressive. He has an enormous amount of experience with paediatric neurology. Dr Scheller gave a cogent explanation for the child’s brain injury. He showed me a clot on the CT and MRI in the superior sagittal vein. That is the vein near the top of the head that goes straight from back to front (i.e. in the sagittal plane). The area of damage was near the clot. In Dr Scheller’s opinion, the child had a stroke which led to seizures. The brain dysfunction progressed while he was in the hospital. At least one more stroke occurred. Images taken about 36 hours apart, in the early morning hours of December 2 and the early afternoon of December 3 show progression of bleeding in the brain. In the first pictures Dr Scheller pointed out the clot and associated area of venous bleeding. In the second pictures he pointed out an area on the side of the brain where a worm-shaped leak had developed. Eventually, he said, seizure activity disrupted the ability of the child’s brain to maintain sufficient blood pressure. As a result, while the centre core of his brain was adequately supplied with oxygen through the circulation of blood, the periphery was not. Finally, he said that a backup of blood in the brain led to leakage at the weakest point of the system, which is in the retina, where the blood vessels are tiny.

[47] According to Dr Scheller, then, the diffuse brain damage on the perimeter is a complication of stroke. It is common ground that the child suffered a number of seizures after his admission to hospital.

[48] Dr Stein could be taken to provide some support for Dr Scheller’s opinion. She reported the presence of two different blood densities on the head CT. She said that this raises the possibility of more than one traumatic event episode being the cause, because it suggests two areas with haemoglobin in different stages of degradation. “Given the presence of avid restricted diffusion signal in the watershed areas of the brain and significant brain edema,” she said, “I would assume that at least one of the events occurred approximately within 1 week prior to the first MRI examination (i.e. prior to December 3, 2017) but I cannot conclude with certainty that the left temporal hematoma occurred at the same time of the hypoxic ischemic event.” This could be taken to support Dr Scheller’s evidence that there were two strokes.

[49] I thought it reasonable for Dr Scheller to discount the December 15 imaging, which was only an ultrasound and only provided a partial view.

[50] Dr Scheller could not say what caused the stroke. In children, strokes are most often caused by infection, dehydration, congenital clotting problems and trauma. There is no hint in the evidence of dehydration or a congenital clotting problem. Dr Scheller considered trauma to be less likely on account of the lack of injury to the scalp, skin and neck, which is an arguable, if minority position in medical science. He considered trauma not to be available as a diagnosis because a medical cause cannot be excluded. Blood tests taken before antibiotics were administered point away from bacterial infection and viral respiratory infection, as does the fact that the child did not get worse and die from disease after the minimal antibiotics that he was given. There was, however, evidence of infection: elevated white blood count, which is admittedly equivocal, the fact that the mother took the child to the doctor on October 29 with a cough and hoarseness and pneumonia was a differential diagnosis, and the fact that the nurses at McMaster had to suction fluid from the child’s breathing tube at least twice. In my view there is enough evidence of infection that Dr Scheller’s opinion cannot be dismissed. It raises a reasonable doubt about the brain injury.

Bones

[51] Dr Hyman is not a clinical researcher. He has not been in clinical practice for 20 years. He is a professional witness. His methodology was not balanced. He applied a different standard to the accounts of the four-year-old and the accused, and his report was argumentative. He also tended to rely on propositions that were not well supported in the literature. “Temporary bone fragility” is one of them. I do not rely on his evidence.

[52] Dr Turner, however, is a forensic pathologist. She has a Ph.D. in physiology. She has performed autopsies on perhaps two hundred children. Dr Turner testified about bones and brain injury. I found her impressive as an expert, but in the area of bone disorder Dr Howard is more knowledgeable. Also, in giving her opinion about coagulopathy, she relied heavily on an abnormal blood test (an INR) that I think must have been a lab error or a bad sample, because tests taken shortly before and after gave completely normal results. That colours my opinion about Dr Turner’s reliability in general, but it does not undermine it completely. Her reliability on bone disorder also suffers from her inability to articulate the difference between osteopenia and osteomalacia. I cannot judge the rights and wrongs and, more to the point, the effect on her judgment, of her unhappy history at McMaster.

[53] The radiologists at the Hospital for Sick Children in Toronto could not rule out bone fragility. They reported:

Healing areas of fractures have been delineated by the original reporting team. The distribution of fractures is congruent with those typically seen in NAI (non-accidental injury).

With respect to possible bone fragility, there are a few features that raise concern for possible bone health issues. The sutures at the calvarium appear poorly defined with a few Wormian bones. The calvarium and mandible appear subjectively osteopenic (soft).

The lateral view of the spine at the thoracolumbar junction show parallel sclerotic bands in the vertebral bodies.

Multiple ribs and long bones show subcortical lucency parallel to the cortex.

Growth arrest and recovery Iines are found at the ends of the long bones. No cupped or frayed metaphyses. No obvious bowing of long bones.

We are not able to render an opinion separating NAT (non-accidental trauma) and bone fragility given the appearance and distribution of healing fractures, however there are several findings by X-ray as detailed above that also raises concern for metabolic/ bone health process. Is there vitamin D deficiency or other metabolic derangement?

[54] Dr Turner pointed to this radiology report and the lab tests from July 23, 2018 in support of her opinion that bone disease is not excluded. Wormian bones, sclerosis, subcortical lucency (brightness on imaging) of long bones parallel to the cortex (the dense outside layer of the bone) and growth arrest are just as congruent with metabolic bone disease as with non-accidental injury in her opinion. The twin sister had one bowed leg bone, in her opinion, although the victim did not.

[55] Dr Howard wrote the book on metabolic bone disease in children, at least the chapter of the textbook that deals with that subject. He knew about the HSC radiologists’ opinion and the Wormian bones and he examined the twin sister. He explained that rickets is diagnosed through radiology with a clinical examination of the patient, which he did. He concluded:

The most likely explanation for the subtle findings reported by the Sick Kids radiologists questioning bone quality is a combination of prematurity, twin pregnancy, and mild vitamin D insufficiency. [The victim] does not have clinical or radiographic rickets, which would be the most common metabolic bone disease. Looking at all of his radiographs in sequence, he does not show an evolution suggesting any other metabolic bone disease of importance.

[56] The child’s vitamin D deficiency was not severe. The exuberant callus on his clavicle and the apparent fractures in his limbs healed normally and quickly. He suffered no further bone injuries. And, significantly, the child’s spine showed no evidence of compression fractures, which one would expect if his bones were not forming properly.

[57] The acute rib fracture was accompanied by bruising. The nurses documented a small bruise next to the left nipple. The fire department did chest compressions with two fingers between the nipples, so I do not attribute this bruise to CPR. Dr Nolan also noticed two bruises on the child’s side and back. She did not document them at the time, but I believe her. I found her to be an honest witness.

[58] Looking at the expert evidence by itself, I have to see Dr Howard’s opinion as stronger than Dr Turner’s or Dr Hyman’s. But I have to look at the evidence as a whole.

[59] The evidence as a whole includes that of the four-year-old brother. He is an obviously bright child and was a bright and well spoken four-year-old. The factors supporting the threshold reliability of his hearsay statement are strong. His statement was to my mind confirmed to a certain extent as to its ultimate and general reliability by admissions made by the accused to which I have referred and by the twin sister’s rib fractures. But he was still only four. I have to wonder what he meant by squeezing, “not as much as you’re squeezing a melon.” Also, I cannot disregard the possibility that he was lying. One reason that children lie is to stay out of trouble. I do not see The four-year-old as a suspect, but he could have done something at any point that he felt guilty about, as children often do. That could have led him to offer an imaginative alternative when he was awakened from sleep and taken to the friends’ house.

[60] I also have to wonder why, if the victim’s bones were of normal strength, the earlier broken ribs, if caused by application of unreasonable force by the accused, did not result in bruises that would have been observed by the mother at some point. She is fanatically protective of her children, and I would not expect her to cover for her husband if she thought he posed a risk to the children. Dr Nolan testified that normal children’s bones are flexible and take a great deal of force to break. She and Dr Callen did say that the presentation of such injuries is highly variable. If the victim’s bones were normal, the rib fractures either resulted from one or two very serious assaults or a number of perhaps less serious assaults. Broken bones are not necessarily accompanied by bruising, but I would have expected visible bruises at some point before December 1 in either case from the heavily applied fingers and thumbs of the assailant.

[61] Looking at the evidence as a whole, I cannot dismiss Dr Turner’s opinion as to bone weakness. It raises in my mind a reasonable doubt as to the bone injuries. I am not sure about Dr Stein’s interpretation of the abdominal imaging as lacerations to the liver and spleen.

Findings of fact and conclusion

[62] As a result, I return a verdict of not guilty.

[63] I wish only to add that Crown counsel did an exemplary job in presenting a difficult case thoroughly and fairly.

J.A. Ramsay J.

Date: 2021-03-30