COURT FILE NO.: CR-17-452
DATE: 20210729
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Morris, for the Crown
- and -
FRANK O’DEA
L. Kurt Wildman, for Mr. O’Dea
HEARD: May 18-21, 25-28, 31, June 1-2, 7-10, 15-18, 22, 29, 2021
REASONS FOR JUDGMENT
BALTMAN J.
[1] This case involves the tragic death of a child who never reached her second birthday.
[2] On April 20, 2015, Frank O’Dea called 911 to report that his daughter Victoria, then 21 months old, was not breathing. The paramedics who arrived were unable to revive her and she was pronounced dead shortly thereafter at Brampton Civic Hospital. The reported cause of death was extreme dehydration and malnutrition.
[3] Mr. O’Dea, who had sole custody of Victoria and lived alone with her, was subsequently charged with manslaughter and criminal negligence causing death, by failing to provide the necessities of life. The trial proceeded before me, without a jury. The defence called no evidence at trial.
[4] Mr. O’Dea accepts that as Victoria’s sole guardian and caregiver, he was responsible for her nutrition and care. He also concedes that he failed to provide those necessities, and that failure is what caused her death. However, he asserts that on April 12, 2015 – eight days before Victoria’s death – he sustained a debilitating head injury that left him incapable of appreciating and responding to her needs.
[5] The trial contained numerous motions regarding the admissibility of various types of evidence, which, on the agreement of counsel, were heard as “blended” voir dires. Where the decisions on those motions required written reasons, they have been issued separately, as follows:
a) Reasons for Ruling Permitting Virtual Testimony under s. 714.1 and for Refusing Adjournment, 2021 ONSC 3706;
b) Reasons for Ruling on Admissibility of Expert Evidence, 2021 ONSC 3836;
c) Reasons for Charter and Voluntariness Rulings, 2021 ONSC 5110.
[6] These are my reasons for judgment.
Factual Overview
[7] Unless otherwise stated, the following facts are largely undisputed.
Background
[8] Victoria’s parents are Mr. O’Dea and Hilary Ashley. They began a relationship in 2011 and were living together on July 2, 2013, when Victoria was born. Victoria weighed eight pounds at birth and was a healthy baby.
[9] However, the parents’ relationship was turbulent, and they separated within months of Victoria’s birth. The triggering event was a physical altercation between them that resulted in an assault charge against Ms. Ashley. The charge was ultimately resolved by a peace bond, which included conditions limiting Ms. Ashley’s contact with Victoria. From November 17, 2013 onward Victoria remained in Mr. O’Dea’s exclusive care, with Ms. Ashley initially permitted only supervised visits.
[10] Ms. Ashley eventually obtained a court order permitting unsupervised visits with Victoria. The first such visit was scheduled to take place on February 26, 2015 (approximately seven weeks before Victoria’s death). Ms. Ashley and Mr. O’Dea met at the designated location for the transfer. Mr. O’Dea was holding Victoria in his arms but refused to hand her over to Ms. Ashley, and therefore the visit did not proceed. That was the last time Ms. Ashley saw her daughter, albeit from a distance.
[11] The couple was scheduled to reattend family court on April 21, 2015 – the day Victoria was pronounced dead. That court date was to address Ms. Ashley’s request for overnight visits with Victoria. At that point Victoria was 21 months and 18 days old.
[12] At the time of Victoria’s death Mr. O’Dea was 42 years old, unemployed and on social assistance. He and Victoria resided in the rented basement apartment of a house in Brampton. Mr. O’Dea has a daughter from a previous relationship, who was then 19 years old, and other family members (parents, etc.) who resided within the Central West region of Ontario. However, for most of Victoria’s life and certainly in the months leading up to her death, Mr. O’Dea was the sole custodian and caregiver for Victoria. He was the one and only person required by law to provide Victoria with proper nourishment and hydration.
Victoria’s medical history
[13] Until March 2015 (6 weeks before her death) Victoria was taken on a regular basis to Dr. Fredrick Lui, a family physician. There is no indication in his notes that he was concerned about Victoria’s general health, nutritional status or growth. The growth chart that reflected Victoria’s height and weight at various points demonstrates that she met her developmental milestones and maintained between the 25th and 50th percentile at least until October 2014, the last month such measurements were recorded.
[14] After that Dr. Lui saw Victoria only twice. On February 27, 2015, she had a mild rash on her cheeks but was otherwise healthy and “doing well”. It was noted she “eats everything”. On March 4, 2015 Mr. O’Dea brought her in because of a concern over her eye being “red and sticky”. Other than a diagnosis of “pink eye”, Dr. Lui described Victoria as “healthy”, “doing well” and “eats well”.
[15] It is therefore undisputed that it was at some point after the March 4, 2015 visit that Victoria plunged seriously downhill. At the time of her death she weighed 7.3 kilograms (16 pounds), equivalent to what she weighed when she was 7.5 months old. This placed her below the 2nd percentile, in glaring contrast to the 25th-50th percentile level that she had previously maintained throughout her life.
Events surrounding Victoria’s death
[16] At 11:25 p.m. on Monday, April 20, 2015, Mr. O’Dea called 911 to report that Victoria had stopped breathing. He advised that they had both been sick for “the last couple of days.” He reported that earlier he had gone to check on Victoria’s diaper and when he picked her up she “puked” on his shoulder. She felt cold and seemed lifeless, so he put her in the bath to try to wake her up and get her breathing, without success. He told the operator that Victoria hadn’t been breathing “for awhile, for the last four minutes”, and that he last saw her awake “about three, four, five minutes ago, if that.”
[17] Because the call related to a “baby not breathing”, it was given a priority three-tiered response, involving police, fire and paramedics. All services were dispatched at 11:26 p.m. Two police officers – Constable Colp and Detective Bettes – arrived first, at 11:30 p.m., as they were close to the scene when the call came in.
[18] Both officers immediately noted that Victoria was in obviously dire condition. She had no vital signs and appeared lifeless. Bettes described her as “gray, gaunt, and sunken”. Based on her physical appearance he believed she was no longer alive and there was no way to revive her, but they nonetheless proceeded with CPR. When they removed Victoria’s “onesie” (one-piece pajamas) in order to perform CPR, she appeared “undernourished and emaciated”, and her ribs were “visible”.
[19] Similarly, Colp testified that when he first saw Victoria she appeared “lifeless”. There was “really nothing to her”. Her stomach was concave and her ribs were pronounced.
[20] The paramedics arrived at 11:31 p.m., on the heels of police, and took over the resuscitation efforts. One of them, Matthew Gallicia, testified that Victoria appeared to have been deceased “for some time”. She looked “very malnourished, very small, frail, unhealthy, emaciated chest, very skinny, her eyes appeared sunk in her head”.
[21] Seanan Donovan, an advanced care paramedic who attended, stated that Victoria appeared “very emaciated, just withered, her joints all were very wasted or atrophied and her eyes were sunken in.” Her belly was “concave” and her hip bones were “protruding.” He also noticed severe ulcers on Victoria’s inner thighs, which he later concluded were related to acute diaper rash.
[22] Due to Victoria’s extreme level of dehydration, the paramedics were unable to insert fluids and medication intravenously (through a vein). Instead the necessary infusions were intraosseous, i.e. directly into her bone marrow. Mr. Donovan noted that instead of the usual “pop” sensation that accompanies insertion into the hard surface of a bone, here the intraosseous needle “just slid in”, a further sign of emaciation and malnourishment. Mr. Donovan observed that he has never experienced that type of “soft entry” into a bone any other time in his 14 years as a paramedic.
Investigations following Victoria’s death
[23] Shortly before midnight on April 20 Victoria was transported to Brampton Civic Hospital. A physician and a team of nurses was waiting, but it was quickly apparent nothing could be done. On April 21, at seven minutes after midnight, Victoria was pronounced deceased. The attending physician, Dr. Fragonis, alerted the Coroner on duty, Dr. Kassam, who attended the emergency room.
[24] Dr. Kassam immediately noticed “something very wrong and very unusual”. Despite having seen hundreds of children over his career, he had “never seen a situation like this.” He alerted the police and commenced an investigation.
[25] Police also proceeded with their own investigation, and interviewed Mr. O’Dea extensively on April 21. Mr. O’Dea provided two video statements, one to Constable Colp (“the Colp statement”) and a second to Detective Quashie (“the Quashie statement”). Ultimately, police charged Mr. O’Dea with criminal negligence causing death and manslaughter, both premised on the failure to provide the necessaries of life.
[26] As noted above, in a previous ruling I determined that both statements were admissible as voluntary and dismissed Mr. O’Dea’s Charter application concerning the statements.
Mr. O’Dea’s Statements
- The Colp statement
[27] Over several hours Constable Colp questioned Mr. O’Dea about his parenting, Victoria’s health and eating habits, and her recent physical condition. Mr. O’Dea maintained that Victoria was generally healthy and, until the last day or two, a very good eater. He repeatedly asserted that while her appetite had declined somewhat in the last few days, there was no warning that anything was seriously wrong. There was “no sign of this coming…it all happened so freakin’ fast”.
[28] Among the noteworthy comments by Mr. O’Dea are the following:
• Having already raised a 19-year-old daughter, “this is not my first rodeo”;
• Victoria generally had a “great appetite” but was “off her game” the day before;
• “She was a little under the weather… she wasn’t miserable. She wasn’t crying… she was just her happy, smiley self”;
• At 8:30 p.m. on Monday night “when I put her to bed you would never have seen this. Never… It just all happened so freakin’ fast… She was perfectly fine at 8:30”;
• “There’s no way anybody could seen this comin’”;
• “She’s never been sick…very healthy child”;
• She normally had a great appetite. “She could eat a whole six-ounce steak herself”;
• Victoria had been teething a lot recently. Over the last few days her appetite “was a little iffy but kids get that way”; and
• That day she only “picked at” her breakfast and dinner; After dinner he read several books to her and she went to bed at 8:30 p.m.
[29] When Colp suggested to Mr. O’Dea that Victoria did not look like she had been eating “as often as maybe you’re telling me”, he replied “[s]he didn’t look like that ‘til she passed away.” He explained that over the last few days her appetite was down, but “it was nothing like, ‘Oh my god, you’re not eating’”.
- The Quashie statement
[30] After a three-hour break, during which Colp went off duty and Det. Quashie stepped into the investigation, Quashie conducted a further interview of Mr. O’Dea, and elicited the following:
• “It just happened so quick. I’ve never seen anything happen so quick… that’s why I’m so flabbergasted”;
• “Saturday… me and her were out normal… dinner Saturday night was fine…”;
• “Sunday she was fine…[at bedtime] she ran up and jumped on the bed and snuggles into the pillow”;
• “She was comfortable when she went to bed” on Sunday;
• On Monday night she ate a peanut butter and jam sandwich for dinner;
• “…earlier that day, that Monday, she was fine.”
• Normally she “eats like a horse”; and
• While her appetite was “a little low” on Sunday and Monday he “just kept on thinking it was the teething”.
The Medical Evidence
Dr. Hanif Kassam, Coroner
[31] Dr. Kassam has been working as a coroner for approximately 18 years and has investigated over 5,000 deaths, including numerous homicides. Of those, approximately 200 cases involved infants or young children. As noted above, he was called in to investigate this case very shortly after Victoria arrived at Brampton Civic Hospital.
[32] Pursuant to the Coroners Act, R.S.O. 1990, c. C.37, as part of his investigation Dr. Kassam is obliged to answer five questions. Those questions, and the answers he arrived at, are as follows:
I. Who died? Victoria O’Dea.
II. When did she die? She was pronounced at 0007 on April 21, 2015
III. Where did she die? Brampton Civic Hospital
IV. How did she die? Severe malnutrition and dehydration
V. By what means did she die? Homicide
[33] Dr. Kassam’s first impression upon seeing Victoria was that she was “severely emaciated, severely dehydrated, severely malnourished”. He testified that of the many children he has seen during his career, he has “never seen this degree of emaciation and dehydration.”
[34] Throughout his involvement in the case he considered whether there were any underlying chronic or acute diseases that could have accounted for her severe weight loss and dehydration, but none were apparent from his examination or from the various tests done as part of the autopsy.
[35] In his evidence at trial Dr. Kassam was asked to comment on a series of photos[^1] taken of Victoria both before and during the autopsy. Based on them he identified numerous, serious concerns.
Evidence of Severe Dehydration
[36] Based on several photos and other information gathered, Dr. Kassam found that Victoria was “severely” dehydrated before her death. He concluded that that level of dehydration did not happen “overnight” but rather would have taken “at least two to three days, if not longer”. In particular:
• Her diaper contained no urine or feces, unlike 90% of cases where there would be waste products in the deceased infant’s diaper (Photo #9);
• A close up of the inside of Victoria’s mouth reveals gums and teeth that are very dry, and an overall “absence of shine”, indicating she is severely dehydrated (Photo #12);
• Victoria’s eyes are “very sunken”, dull and dry, and her teeth and lips are dry (Photos #16, #18, #19 and #20); and
• She had severely wrinkled skin, referred to as “reduced turgor” (Photo #21).
Evidence of Severe Malnutrition
• Victoria had reduced lividity (the bluish/purple discoloration that normally occurs after death) on her back and buttocks, signifying malnourishment (Photos #10, #13 and #23);
• There were no feces in her buttocks (Photo #13);
• The ribs on Victoria’s front torso are “very well defined”, indicating a loss of subcutaneous fat (located beneath the skin) which usually “takes weeks” (Photo #11);
• Victoria’s arms are extremely thin, her ribs are protruding, she is pale, her neck muscles are prominent, and she barely has any subcutaneous fat (Photo #22, #14); and
• She appears “dysmorphic”, i.e. her head is abnormally large compared to her body (Photo #17).
Other Evidence of Neglect
• Victoria’s buttocks and upper legs were “markedly excoriated” and “ulcerated”, something that would “not happen overnight”, and which suggested she was not being bathed or cleaned for “a number of days” (Photo #8).
Inadequate Food in Mr. O’Dea’s apartment
[37] Dr. Kassam attended Mr. O’Dea’s apartment. He found it “quite bare” of toys or children’s items. More importantly, he concluded that it contained little in the way of children’s food. Aside from milk and yogurt in the fridge, and bananas and a box of cereal on the counter, there was no other food that you would “typically” expect to see, including bread or cheese.
Dr. Kassam’s conclusions
[38] Based on his investigation and analysis, Dr. Kassam concluded that in the absence of any congenital abnormality or other physiological issue that would explain Victoria’s appearance, the only conclusion he could come to was that “she was being starved”. The subsequent autopsy findings “reaffirmed” that belief, and led him to conclude that the means of death was “homicide”.
[39] Significantly, when asked about the timeframe within which this decline occurred, Dr. Kassam stated that it was “at least” a matter of “weeks”. He stated that while it was “possible” that her deterioration occurred within a week, it was “most likely” over a timespan of three to four weeks. He observed that based on her birth records and subsequent assessments by Dr. Lui, she had been “doing well” and was close to the 50th percentile, but then dropped significantly, ending up below the 2nd percentile. Had she been taken to a doctor even two weeks before her death, they would have seen her poor condition and “almost likely” she would have been saved.
[40] As to how evident Victoria’s decline would have been to the average person, he responded “any normal adult would look at the overall picture and say there is something wrong here” (emphasis added). Dr. Kassam stated that had there been medical intervention during her decline she likely could have been saved. Finally, he noted that of the roughly 200 autopsies of children that he has seen, he has never observed this degree of emaciation and dehydration. Simply put, she had been “starved to death.”
Response to Mr. O’Dea’s assertions
[41] Dr. Kassam was asked about several assertions made by Mr. O’Dea during the 911 call and in his statement to police, in particular:
• “[T]here was no sign of this even coming”… “it just all happened so freaking fast”;
• “Sunday she was fine”. On Monday, when she went to bed at 8:30 p.m., “you would never have seen this. Never. It just all happened so freaking fast”; and
• “She didn’t look like that until she passed away.”
[42] Dr. Kassam strongly disagreed with those assertions. There “most definitely” would have been signs. Victoria would have been weak, struggling, and extremely exhausted. Anyone with “any common sense knowledge” could have looked at her body and realized this was not normal: “you do not need to be an expert”. Moreover, this could not have happened overnight or even within a week. The substantial loss of subcutaneous fat indicates this happened “over a period of weeks”. And she most certainly would not have appeared “fine” in the days preceding her death. She would have been extremely weak by then, possibly semi-comatose.
Dr. Michael Pickup
[43] Dr. Pickup is the forensic pathologist who conducted the autopsy of Victoria. Over his career he has conducted well over 3,000 autopsies, of which 60-70 involved children. He described the various steps involved in a forensic post-mortem examination, including attendance at the scene, external and internal examinations of the body, and various ancillary tests.
[44] From his visit to Mr. O’Dea’s apartment on April 22, 2015 Dr. Pickup concluded that the apartment was clean and tidy, and well stocked with clothing and toys for a toddler, but that there was “very little food” in the cupboards, refrigerator or freezer.
[45] From the various medical procedures he performed, Dr. Pickup made the following observations, supported through numerous autopsy photographs[^2]:
Evidence of Severe Dehydration
• Victoria’s eyes appear “sunken” (Photo #1); and
• Significant skin creases were produced in Victoria’s chest and abdomen. Those creases were not present initially. In a typical autopsy, after skin is pinched it will immediately reflect back, but here the “tented up” skin did not retract “at all” for at least several minutes, because there was so little fluid in the skin. This is a “very good sign of dehydration” (Photo #4).
Evidence of Severe Malnutrition
• The ribs in Victoria’s abdomen are very prominent. This is a feature of malnutrition or poor oral intake (Photo #5);
• There are ulcers on the inside of both of Victoria’s cheeks, which is indicative of malnutrition (Photo #7 and #8);
• There was very little fat on the large intestine. Normally the large intestine is covered with a large apron of fatty tissue, called the “omentum”. Typically, it is yellow in colour, because of the fat it contains. Here it is almost transparent (Photo #9);
• There was very little fat in the “mesentery”, which is the tissue that connects the small intestine to the abdominal wall and acts as a reservoir for body fat (Photo #10); and
• Normally, it takes a considerable amount of time to lose internal fat stores, such as those around the intestines. At that point you are “quite far down the line” in the weight loss process: it’s after “several weeks to a few months of decreased oral intake”.
Other Evidence of Neglect
• In this photo of Victoria’s upper legs, genitalia and buttocks, there are numerous very red, scaly areas, indicative of diaper rash. It suggests that her diaper was not changed for some time, permitting prolonged contact between urine and skin. Dr. Pickup has not seen diaper rash on dead children to this degree, but qualified that he is not an expert on diaper rash (Photo #6).
The Growth Chart
• Based on Victoria’s birth records and Dr. Lui’s records, Victoria maintained steady growth between the 25th and 50th percentile until some point after October 2014, when her weight plunged to below the 2nd percentile;
• In October 2014, the last time Victoria was measured, she was 15 months old and weighed nearly 10 kg (22 pounds), placing her slightly over the 50th percentile; and
• Upon her death on April 20, 2015, at the age of 21 months, Victoria weighed 7.3 kg (16 pounds), placing her below the 2nd percentile. That was equivalent to her weight at 7.5 months of age.
Ancillary Tests
[46] Dr. Pickup performed a large number of ancillary tests in order to rule out other contributing factors. There was no evidence of active or chronic diseases that could cause malnutrition. There was no evidence of diseases of the brain, lungs, heart, gastrointestinal tract, kidneys or liver. There was no evidence of cancer that can cause anorexia and malnutrition. There was no evidence of diabetes, metabolic disorders or congenital diseases that could interfere with the metabolism of nutrients. Extensive sampling of the gastrointestinal tract showed no pathology to indicate a cause for malabsorption or dysfunction. No congenital abnormalities were present. Microbiology and virology testing (including HIV), as well as stool studies for parasites were negative.
Dr. Pickup’s conclusions
[47] Dr. Pickup testified that after he eliminated every possible thing that can cause weight loss in children, based on the autopsy results he was left with “only one possibility”, namely that Victoria died from the “combined effects” of dehydration and malnutrition. There is simply “no abnormality that could explain her weight loss”.
[48] As for the timeframe within which Victoria’s decline occurred, Dr. Pickup gave a range of “weeks to months”. If, toward the end, there was a complete absence of nutrition of “just over a week”, that period could be shorter, but even then, the most reasonable conclusion would be “weeks to months”.
Response to Mr. O’Dea’s assertions
[49] As with Dr. Kassam, Dr. Pickup was asked to respond to Mr. O’Dea’s statements during the 911 call and in his statement to police, which I set out again here:
• “[T]here was no sign of this even coming”… “it just all happened so freaking fast”;
• “Sunday she was fine”. On Monday, when she went to bed at 8:30 p.m., “you would never have seen this. Never. It just all happened so freaking fast”; and
• “She didn’t look like that until she passed away.”
[50] Like Dr. Kassam, Dr. Pickup disagreed with those assertions. He observed that a dead toddler does not look very different at the time of death compared to how she did during life. Consequently, her appearance in the post-mortem photos “would be similar to what she looked like” around the time of death. Moreover, for Victoria to have reached this level of dehydration and malnutrition “that would have to occur over the span of weeks to potentially months.”
The Legal Framework
[51] The accused is charged with two offences: criminal negligence causing death and unlawful act manslaughter. As both are premised on the same underlying offence, namely failing to provide the necessaries of life, I shall begin by outlining the essential elements of that offence.
Failing to provide the necessaries of life: s. 215
[52] The offence of failing to provide the necessaires of life is codified in s. 215 of the Criminal Code, R.S.C. 1985, c. C-46. For ease of reference, the relevant subsections are reproduced below:
215 (1) Every one is under a legal duty
(a) as a parent… to provide necessaries of life for a child under the age of sixteen years;
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be injured permanently…
[Bold in original; underline added.]
[53] The underlying premise of this offence is that where a person is in charge of another, they have a duty to provide the necessaries of life. It “imposes legal duties arising out of defined relationships”: R. v. A.D.H., 2013 SCC 28, at para. 67.
[54] As a penal negligence offence, s. 215 imposes liability on an objective basis. The accused’s conduct is to be determined on a reasonable community standard, not a personal one; a subjective perception that the victim required care or medical attention is not required under s. 215. That said, the Crown must show a marked departure from the conduct of a reasonable and prudent caregiver: R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at pp. 143-145; R. v. Cox, 2011 ONCA 58, at para. 29; R. v. Doering, 2019 ONSC 6360, at para. 97. In R. v. Peterson (2005), 2005 CanLII 37972 (ON CA), 203 O.A.C. 364 (C.A.), at para. 35, the Court explained it thus:
Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has been established and is aimed at establishing a uniform minimum level of care. [Bold and underlining added; citations omitted.]
Criminal negligence causing death: s. 219
[55] As noted, in this case the charges for both criminal negligence causing death and unlawful act manslaughter are based on the same conduct: failing to provide the necessities of life, contrary to s. 215 of the Criminal Code. As can occur in cases of this nature, there is much overlap between unlawful act manslaughter and criminal negligence causing death. “Nonetheless,” as the Supreme Court has observed, “the offences must be approached separately”: R. v. Javanmardi, 2019 SCC 54, at para. 17.
[56] The offence of criminal negligence is codified in s. 219 of the Criminal Code as follows:
219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
[Bold and italics in original; underlining added.]
[57] The actus reus of criminal negligence causing death requires that the accused did something or failed to do something that it was their legal duty to do – and that the act or omission caused someone’s death: Javanmardi, at para. 19. In this case the alleged actus reus is an omission, namely the failure to provide the necessities of life.
[58] The mens rea, or fault element, is that the accused’s act or omission shows wanton or reckless disregard for the lives or safety of other persons. As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. This has been referred to as a “modified objective standard of fault – the objective ‘reasonable person’ standard”: Javanmardi, at para. 20.
[59] For some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element. In the context of criminal negligence causing death, however, the requisite degree of departure is an elevated one – “marked and substantial” (italics in original, underlining added). The distinction is a matter of degree and is “entirely contextual”. Both standards ask whether the accused’s actions created a risk to others, and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible. Put another way, liability will follow if the accused either recognized and ran an obvious and serious risk to the life of their child or, alternatively, gave no thought to that risk: Javanmardi, at paras. 20-22; R. v. J.F., 2008 SCC 60, at para. 9; R. v. Fontaine, 2017 QCCA 1730, at para. 27.
Unlawful act manslaughter: s. 222(5)(a)
[60] Turning to unlawful act manslaughter, the following Criminal Code provisions apply:
222(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by willfully frightening that human being, in the case of a child or sick person.
234 Culpable homicide that is not murder or infanticide is manslaughter.
[Bold in original, underlining added.]
[61] The actus reus of unlawful act manslaughter requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. The underlying unlawful act is described as the “predicate” offence: Javanmardi, at para. 25. Here, the predicate offence is the failure to provide the necessaries of life.
[62] In establishing the actus reus there is no independent requirement for the Crown to prove objective dangerousness: Javanmardi, at paras. 26-30.
[63] The fault element of unlawful act manslaughter is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence. Where, as here, the predicate offence involves carelessness or negligence, the Crown must demonstrate a marked departure from the standard of the reasonable person: Javanmardi, at paras. 31, 45.
Summary of Essential Elements
[64] In this case, a conviction for criminal negligence requires the Crown to prove that:
a) The accused omitted to do something that it was his legal duty to do, and that the omission caused Victoria’s death (the actus reus) i.e. the failure to provide necessities; and
b) The accused’s conduct showed wanton and reckless disregard for the lives or safety of other persons, i.e. conduct that constituted a marked and substantial departure from that of a reasonable person in his circumstances (the fault element).
[65] Further, a conviction for manslaughter requires the Crown to prove that:
a) The accused caused Victoria’s death (the actus reus), i.e. the failure to provide necessities; and
b) The accused caused her death unlawfully, i.e. the risk of bodily harm that was neither trivial nor transitory was objectively foreseeable (the fault element).
[66] Significantly, in this case both offences contain the failure to provide the necessaries of life as their predicate, underlying act. Moreover, both charges against Mr. O’Dea require his conduct to be measured against the standard of a reasonable person in his circumstances – as part of the fault element of both criminal negligence and the predicate offence for unlawful act manslaughter: Javanmardi, at para. 32.
[67] Finally, “while the standard is not determined by the accused’s personal characteristics, it is informed by the activity.” In this case, the activity is parenting, and therefore the standard to be applied is that of a reasonably prudent parent in the circumstances: Javanmardi, at para. 38.
Burden of Proof and Circumstantial Evidence
[68] The burden of proof in this case lays entirely on the Crown. There is no onus on Mr. O’Dea to present evidence or prove anything, in particular that he is innocent of the crimes charged.
[69] Moreover, the Crown’s burden in a criminal case is a high one. It is not enough for me to believe Mr. O’Dea is probably or likely guilty. I must be convinced beyond a reasonable doubt, meaning I have to be sure of his guilt.
[70] Further, where, as here, the Crown’s case is based on circumstantial evidence, I must be convinced that Mr. O’Dea’s guilt is the only reasonable conclusion from the evidence. In R. v. Villaroman, 2016 SCC 33, at paras. 37-38, the Supreme Court explained that when assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt.
[71] That said, the Crown does not need to negative every possible theory, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. While the line between a “plausible theory” and “speculation” is not always clear, the key question is whether the circumstantial evidence, “viewed logically and in light of human experience”, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at paras. 37-38.
ANALYSIS
Introduction
[72] I previously identified the essential elements of what the Crown must prove to establish either criminal negligence or manslaughter. In distilled form, they are:
Frank O’Dea had a legal duty to provide Victoria O’Dea with the necessaries of life;
He failed to provide adequate nourishment and medical care;
His failure to do so caused Victoria’s death; and
Any reasonable parent in his circumstances would have foreseen that his omissions would, at a minimum, cause serious bodily harm.
[73] In this case the defence has conceded points 1, 2 and 3. Mr. O’Dea accepts that as Victoria’s sole guardian and caregiver, he was responsible for her nutrition and care. He also concedes that he failed to provide those necessities, and that that failure is what caused her death.
[74] The sole dispute is with respect to the fourth element, namely whether a reasonable person in Mr. O’Dea’s circumstances would have foreseen that his failure to nourish Victoria was endangering her life. Mr. O’Dea claims that on the evidence he was providing proper care to Victoria until April 12, 2015, when he sustained a debilitating head injury that prevented him from appreciating and responding to Victoria’s needs.
[75] I shall first summarize his submission; then I will break it down for analysis.
[76] By way of summary, the relevant sequence relied upon by the defence is as follows:
Up until March 4, 2015 Mr. O’Dea was providing proper care to Victoria;
Evidence from Melissa Gueran, a friend of the accused, demonstrates that as of April 11, 2015, Victoria was being cared for and looked well;
On April 12, 2015 – eight days before Victoria died – Mr. O’Dea sustained a head injury during a bar fight which prevented him from appreciating Victoria’s needs; and
Based on the medical evidence, it is “possible” that Victoria’s decline occurred within a week of her death.
[77] The defence argues that those four assertions, when combined, offer a reasonable explanation for how Victoria starved to death while under Mr. O’Dea’s care, without any culpability on his part. In sum, he was caring for her properly until eight days before her death, when he was incapacitated by a head injury. As a result, in those final eight days, Victoria plunged from good health to her death.
[78] I shall now analyze, in turn, each of the four assertions on which that argument rests.
Defence Assertion #1: Until March 4, 2015, Mr. O’Dea properly cared for Victoria
[79] Based on the evidence before the court, the Crown does not dispute this assertion and I agree with it. Somewhat ironically, it is supported by witnesses called by the Crown on its motion to introduce prior discreditable conduct. Although I ruled such evidence inadmissible, during cross-examination defence counsel elicited other evidence demonstrating that in the months preceding March 2015, Victoria appeared to be healthy and happy.
[80] In particular, Louisa Barr, a friend of Mr. O’Dea’s, recalled a visit to his apartment in late November or early December 2014. She saw Mr. O’Dea cooking dinner and noted that Victoria looked happy and well. She also observed that the apartment was very clean and well kept. Another friend, Ashley Gueran, visited the apartment briefly in January of 2015. She observed that Victoria looked healthy and that the apartment was very clean.
[81] Moreover, as noted above, until six weeks before her death, Mr. O’Dea brought Victoria to Dr. Lui on a regular basis. Dr. Lui last saw Victoria on March 4, 2015, for pink eye. On that day, other than the minor eye ailment, Dr. Lui observed her to be healthy and doing well. The decline clearly occurred at some point after that date.
Defence Assertion #2: Melissa Gueran’s evidence proves Victoria was healthy as of April 11, 2015
[82] This assertion is based on the evidence of Melissa Gueran, a casual friend of Mr. O’Dea and the sister of Ashley Gueran. She has known Mr. O’Dea since approximately 2003. They typically saw each other when socializing at the same bar.
Ms. Gueran’s evidence
[83] Ms. Gueran testified that she first learned of Victoria’s death on the Friday after it occurred, i.e. on April 24, 2015, when she saw it in a news report on television. She stated that she had last seen Mr. O’Dea on the Friday before Victoria died, i.e. April 17, 2015, but allowed that it might have been one week earlier, i.e. on April 10, 2015.
[84] On that occasion, she ran into Mr. O’Dea at a bar named “Fusion”, located in Brampton, at around 10:00 p.m. They socialized and drank alcohol together for a few hours. After midnight, at approximately 12:30 a.m. on April 11, 2015, they headed over to the house of her friend Angela. A friend named “Rocco” (since deceased) drove them in his car, as he had not been drinking. At Mr. O’Dea’s request, Rocco stopped at Mr. O’Dea’s home so that he could check on Victoria. When they arrived there Mr. O’Dea went inside briefly, on his own.
[85] The group then headed to Angela’s house, where they socialized and drank alcohol. At approximately 2:30 a.m., when the group ran out of cigarettes, Rocco volunteered to drive to a store to get some more. Mr. O’Dea asked to come along and for Rocco to again stop at his apartment so he could again check on Victoria.
[86] After they returned, at approximately 3:00 a.m., Rocco reported to Melissa that when they arrived at Mr. O’Dea’s home, Mr. O’Dea invited him into the apartment and then brought the baby out and showed her to Rocco. Mr. O’Dea then put the baby back to bed and the two men left. Rocco described the baby to Melissa as a “cute little thing”.
[87] Defence counsel asserts that this evidence establishes that as of April 11, 2015, Victoria appeared healthy and well.
My Ruling on the admissibility of Ms. Gueran’s evidence
[88] Rocco is deceased. During the trial the defence sought to adduce his ante mortem hearsay statement. The Crown conceded necessity but disputed the reliability of the statement. At that juncture I gave the following oral ruling:
Necessity has been conceded. The issue is reliability. At this stage I am only considering the threshold reliability of the proposed evidence. The jurisprudence indicates that evidence relevant to the defence in a criminal proceeding should not be excluded unless the prejudicial effect of that evidence substantially outweighs its probative value. This trial is proceeding without a jury and therefore the potential for prejudice is reduced.
When determining threshold reliability the court must be alert to the difficulties in assessing the declarant’s perception, memory, narration and sincerity. The proposed evidence suggests Rocco made the statement shortly after the observation was made, and it was made spontaneously, with no apparent motive to mislead. That said, the Crown has raised legitimate concerns regarding the strength of Rocco’s observations at that time and Ms. Gueran’s ability to accurately recall the statement.
While I consider it an extremely close call, I am prepared to admit the statement into evidence. I emphasize, however, there are serious questions regarding the weight to be given to this statement, which will be determined at the end of the trial in the context of the entirety of the evidence. [Emphasis added; citations omitted.]
The deficiencies in Ms. Gueran’s evidence
[89] As I noted in my preliminary ruling, Ms. Gueran’s evidence is fraught with difficulties. To begin with, she vacillated on whether the event occurred on April 10 or April 17, 2015. If it was the latter date, that means it post-dated the bar fight, and therefore, far from demonstrating any negative after-effects, shows that within three days of Victoria’s death Mr. O’Dea was well enough to socialize at bars and friends’ homes.
[90] Assuming, however, this occurred on April 10, 2015, numerous problems remain with this evidence.
[91] First, Ms. Gueran did not give this statement until January 2021, when police initially interviewed her regarding this case. By that point the events in question were over five and a half years old, creating concerns about her ability to recall them with sufficient accuracy.
[92] Second, she was drinking alcohol for several hours before this conversation occurred, raising questions about her capacity to accurately absorb and retain anything Rocco reported. This is particularly so given that this aspect of her evidence involves a brief, fleeting conversation that occurred after 2:30 a.m. with someone whose full name she does not know and can identify only as “Rocco”.
[93] Third, by that point Mr. O’Dea had also been drinking alcohol for several hours, which may have affected his judgment and thereby influenced his decision to invite Rocco into his apartment and “show” him the baby.
[94] Fourth, it is not clear how long or good a look Rocco got of the baby. As Ms. Gueran reported it, he did not get physically close to the baby:
[Rocco] said he didn’t go very much further than the front, like, where his entrance was, but that he did see – he heard the baby and he didn’t see Frank come out of the room with the baby because he had heard – I guess she had heard Frank’s voice and had woken up. And Rocco, he said, she was a cute little thing, and then he said that Frank put her back to bed, and then they left again and went back to Ang’s. [Emphasis added]
[95] Moreover, this occurred in the middle of the night, meaning the only illumination would have come from within the apartment. There is no evidence as to what lights were on, or where, or how strong they were. Further, we don’t know what the baby was wearing or how much of her was exposed. Was she wrapped up in a blanket? Without knowing more about the lighting available, how close to the baby Rocco got and for how long, or how much of her he saw, the fact that he reported Victoria as “cute” is not evidence that she looked healthy and well nourished.
[96] Finally, there is no evidence what experience, if any, Rocco has with babies or if he has any basis to compare Victoria with any other child.
[97] In sum, this is an observation from a now deceased person to a woman who had been consuming alcohol for several hours, recounted by her five years later, involving a brief observation the deceased made at a distance and in the middle of the night about the appearance of a baby he had never met before.
[98] Defence counsel argued that whatever shortcomings lay within Ms. Gueran’s evidence, it deserves “some” weight. “Some” is a variable term. Based on the numerous frailties I have identified, I find her evidence is of negligible weight, and incapable of in any meaningful way supporting the inference that Victoria appeared healthy and well on April 11, 2015.
Defence Assertion #3: On April 12, 2015, Mr. O’Dea sustained a debilitating head injury
[99] This assertion is based primarily on the evidence of Michael Rotundo, a casual friend of Mr. O’Dea, and Tirath Dehal, Mr. O’Dea’s landlord. I shall first summarize their evidence. Next I will explain why their evidence, whether on its own or combined with any other evidence in this case, does not support the defence theory that Mr. O’Dea was incapacitated by a head injury.
Mr. Rotondo’s evidence
[100] Mr. Rotondo knew Mr. O’Dea for approximately seven or eight months before Victoria’s death. They socialized at various bars, in particular Fusion. He learned of Victoria’s death on April 22, 2015 from the morning news on television.
[101] Although Mr. Rotondo initially asserted that he last saw Mr. O’Dea on the Sunday immediately before the newscast (i.e. April 19), in cross-examination he agreed it was in fact one week prior, i.e. April 12. On that occasion Mr. Rotondo was at the Fusion bar. Shortly before the 1:00 a.m. closing time Mr. O’Dea arrived, looking like he had already consumed some alcohol.
[102] Soon after he arrived Mr. O’Dea got into an argument with another customer named “Matt”, who struck Mr. O’Dea at least twice in the head. This caused Mr. O’Dea to fall backwards, landing on his back on the concrete floor and rendering him unconscious. Two employees of the bar went to his aid. Within the next two to five minutes Mr. O’Dea revived and opened his eyes. No one called for an ambulance or medical aid. After he saw that Mr. O’Dea had revived, Mr. Rotondo left the bar.
[103] On each of the next three days Mr. Rotondo telephoned Mr. O’Dea to inquire about his condition, but no one answered the phone.
Mr. Dehal’s evidence
[104] Tirath Dehal was Mr. O’Dea’s landlord. Mr. O’Dea and Victoria lived in the basement apartment of Mr. Dehal’s house, in Brampton. The apartment was a self-contained unit except for laundry facilities. When Mr. O’Dea needed to do his laundry, he used the washer and dryer machines on the main floor of the house.
[105] Mr. Dehal testified that Mr. O’Dea was a good tenant who was quiet and always paid his rent on time.
[106] On Monday April 13, 2015 a man named Peter, who was a friend of Mr. O’Dea, contacted Mr. Dehal because he was having trouble reaching Mr. O’Dea by phone. Peter asked Mr. Dehal to check in on Mr. O’Dea. Mr. Dehal knocked on Mr. O’Dea’s door a few times that day but received no answer. Mr. Dehal also noticed that Mr. O’Dea’s car, which was parked in the driveway, had a flat tire.
[107] By Wednesday April 15 when he still hadn’t seen Mr. O’Dea, Mr. Dehal again knocked on Mr. O’Dea’s apartment door. When he received no answer, he let himself into the apartment. Mr. O’Dea was lying on the sofa. When Mr. Dehal asked him if he was all right, Mr. O’Dea responded “yeah, yeah, I’m ok.” Mr. O’Dea explained that he been helping his mother move and had injured his neck.
[108] Over the next several days Mr. Dehal did not see Mr. O’Dea. He noticed that Mr. O’Dea’s car remained in the driveway with the flat tire.
[109] Mr. Dehal next saw Mr. O’Dea on the evening of Monday April 20, at approximately 7:00 p.m. This was just hours before Mr. O’Dea called 911 to report that Victoria had stopped breathing. Mr. O’Dea was on the main floor doing his laundry. The two men conversed. Mr. O’Dea did not appear injured.
Any “injury” did not incapacitate Mr. O’Dea from caring for Victoria
[110] Based largely on the evidence of Mr. Rotondo and Mr. Dehal, the defence argues that when Mr. O’Dea was struck in the bar he lost the capacity to adequately care for his daughter. Counsel says this event, eight days before Victoria’s death, “tracks with the sudden and significant decline in her nourishment and care”. The defence relies in particular on these factors:
i. Mr. O’Dea sustained a head injury when he was struck in the bar;
ii. As a result of that injury, he lost consciousness for several seconds;
iii. In the days after the bar incident, people had difficulty reaching Mr. O’Dea and his activity decreased around the home; and
iv. When the landlord entered Mr. O’Dea’s apartment, he was lying on the couch.
[111] Accepting that is the evidence, I strongly disagree with the inference defence counsel urges me to draw from that evidence. A head injury can have a wide range of outcomes. While the evidence suggests Mr. O’Dea sustained a head injury, there is no evidence that it resulted in a reduced mental capacity. In R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, [1993] S.C.J. No. 91, at paras. 129-135, the Supreme Court made it clear that in the absence of evidence that the accused lacked the intellectual capacity to foresee the risk of bodily harm created by his neglect, any injury, by itself, does not raise a reasonable doubt:
To summarize, the fundamental premises upon which our criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the incapacity be the ability to appreciate the nature and quality of one’s conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence. The principle that we eschew conviction of the morally innocent requires no more.
The only actor-oriented question apposite to mens rea in these cases is whether the accused was capable of appreciating the risk, had he or she put her mind to it. If the answer is yes… that is an end of the matter. [Emphasis added.]
[112] In this case, far from supporting incapacity, all the evidence shows that even after the bar fight Mr. O’Dea was fully capable of carrying on as a reasonably prudent parent.
[113] First, there is no indication that Mr. O’Dea ever sought medical care for this injury.
[114] Second, when the landlord found Mr. O’Dea lying on the sofa, Mr. O’Dea reported that he was “ok”, and explained that he had injured his neck from helping his mother move. That is not evidence of mental incapacity.
[115] Third, although Mr. O’Dea appeared inactive around the house for several days, just hours before he called 911 he was well enough to go upstairs, do his laundry, and carry on a conversation with Mr. Dehal, who testified that Mr. O’Dea did not seem injured at that point. While doing laundry and carrying on a conversation are not complicated tasks, neither is the basic care and feeding of a toddler.
[116] Fourth, while Mr. O’Dea sounds distressed during the 911 call, he is coherent, responsive to the questions asked, and capable of following the instructions given to him by the operator, which included: a) placing Victoria on her back; b) kneeling beside her; c) opening her mouth by tilting her head back; and d) checking inside her mouth for a foreign object.
[117] Fifth, within 12 hours of being detained Mr. O’Dea provided two lucid, detailed statements to police. The first interview, with Constable Colp, lasted approximately five hours; the second interview, with Detective Quashie, was nearly three hours long. It is apparent from watching and listening to those interviews that Mr. O’Dea had no difficulty understanding or responding to the officers. His one error (over what month it was) is inconsequential.
[118] Significantly, when asked by the officers to recount Victoria’s activities and food consumption in recent days, he did so easily and in detail. This included telling the police that in the day or two before Victoria died, her appetite was off and she picked at her food but was nonetheless her “happy, smiley self”. While the medical evidence shows his answers were false, or at least greatly exaggerated, they demonstrate he had the capacity to know he was supposed to be taking care of her. There is nothing to suggest his cognition is impaired. This is not a man suffering from a recent brain injury of any consequence.
[119] Moreover, far from seeming oblivious to Victoria’s needs, Mr. O’Dea presented himself to police as a deeply caring, protective father. He reassured them that Victoria “is not my first rodeo”, as he had already raised an “almost 20-year-old daughter”. He told them that Dr. Lui would confirm he had been a diligent parent. He produced numerous photographs of Victoria on his phone, dating from December 2014 to February 2015, to show how healthy she was. That he failed to persuade the police about his recent parenting is not the point; he fully understood what was at issue here and attempted to steer the police toward a favourable outcome. This is a man in full possession of his faculties.
[120] Sixth, based on the police videotapes I have viewed, Mr. O’Dea does not appear to be either malnourished or exhausted, suggesting he was quite capable of attending to his own needs during Victoria’s final weeks and days.
[121] Seventh, the autopsy photos of Victoria make it painfully clear she would have been shrinking before Mr. O’Dea’s eyes. Her ribs are plainly visible. Her face is gray and her eyes are sunken. She looks utterly wasted. The police officers who initially arrived on the scene were immediately struck by how “undernourished and emaciated” she appeared. Dr. Kassam testified that of the roughly 200 children he has seen in his career, he has “never seen this degree of emaciation and dehydration”. And the medical evidence makes it clear that her decline likely occurred over a period of weeks. How could Mr. O’Dea not notice this drastic weight loss? Any person with even the most basic mental capacity would have sounded the alarm bells long before Mr. O’Dea called 911.
[122] For all those reasons, I find there is no evidence that any injury Mr. O’Dea may have sustained in the bar fight left him incapable of properly caring for Victoria.
Defence Assertion #4: Based on the medical evidence, it is “possible” that Victoria’s decline occurred within a week of her death.
[123] Even if Mr. O’Dea was incapacitated by the bar fight – and I expressly find he was not – contrary to the assertion of defence counsel, that does not “track with” the decline in Victoria’s condition. The bar fight occurred a mere eight days before Victoria’s death. Both Dr. Kassam and Dr. Pickup asserted that her deterioration likely began within “weeks to months” before her death. Although at one point Dr. Kassam allowed for the possibility of “a week”, he clarified it was “most likely” three to four weeks.
[124] Importantly, one key reason both experts stated Victoria’s decline occurred over weeks rather than mere days relates to her substantial loss of fat from not only the subcutaneous regions (i.e. under the skin) but also from her internal organs (e.g. the depleted omentum). Weight loss typically begins in the subcutaneous regions. But the internal fat stores are the last places where fat goes away. In Victoria’s case, both were severely depleted, signifying weeks if not months of deprivation.
[125] On any reasonable assessment of the evidence, this was not a case where Victoria’s decline could have occurred within the eight days between the bar fight and her death.
Conclusion on defence of lack of capacity
[126] For the reasons set out above, I find that:
Until March 4, 2015, Mr. O’Dea properly cared for Victoria;
There is little reliable evidence – from Melissa Gueran or anyone else – that Victoria was in good health as of April 11, 2015;
There is no evidence that Mr. O’Dea was incapacitated by a head injury from a bar fight on April 12, 2015; and
Victoria’s decline began well before the eight-day period between April 12, 2015 and her death on April 20, 2015.
[127] The upshot is that Mr. O’Dea’s defence that he was rendered incapable of caring for Victoria because of a head injury is rejected. It has no foundation in the evidence or in common sense.
Alleged Absence of Motive
[128] In support of the argument that Mr. O’Dea was incapacitated from caring for Victoria, defence counsel repeatedly asserted there is “no culpable reason” why Mr. O’Dea would abandon Victoria in the final weeks of her life. As counsel put it, there is “no culpable event or rationale for why after months of caring for his daughter he would stop feeding her”.
[129] The Crown is not required to prove any motive on the part of Mr. O’Dea. That said, the Crown asserted that in the leadup to Victoria’s death Mr. O’Dea underwent “some very dark days and weeks”. The evidence supports that assertion. Mr. O’Dea and Ms. Ashley had a tumultuous relationship and were in the midst of a court battle over parenting rights. Significantly, Victoria’s decline began soon after Ms. Ashley attempted her first unsupervised visit and ended on the day Ms. Ashley was seeking a court order for overnight visits.
[130] Mr. O’Dea’s dissatisfaction with the custody proceedings was very plain from his conduct during the police interviews. Even though his daughter had just died while under his sole care, he was obsessed with demonizing Ms. Ashley. At several points during the police interviews Mr. O’Dea launched into tirades against her. Those tirades are largely unprovoked and some of them are lengthy. The first one occurred within minutes of the interview beginning, triggered by nothing more than Constable Colp asking whether he and Victoria’s mother were married. Curiously, even though it is undisputed that Victoria had not been in Ms. Ashley’s care at any point during her physical decline, Mr. O’Dea thought it important to detail for the police her many alleged failings as a mother.
[131] Further, as Mr. O’Dea told the police, he was very upset that Ms. Ashley had recently been awarded unsupervised access. Indeed, Ms. Ashley’s uncontradicted evidence is that he had recently refused to comply with that court order. Moreover, on the very day Victoria died Ms. Ashley was moving to secure a court order for overnight visits. Mr. O’Dea was clearly dead set against that happening.
[132] While my decision in this case would be the same irrespective of this evidence, it calls into question the defence assertion that there is no explanation for why Mr. O’Dea abandoned Victoria when he did. The pending litigation combined with Mr. O’Dea’s deep animosity towards Ms. Ashley illustrate that, as the Crown asserted, this crime occurred during a dark period in Mr. O’Dea’s life.
Summary of Findings
[133] As noted above, the defence has conceded, and I find, the following:
Mr. O’Dea had a legal duty to provide Victoria with the necessaries of life;
He failed to provide adequate nourishment and medical care; and
His failure to do so caused Victoria’s death.
[134] The only issue in dispute here was whether a reasonable person in Mr. O’Dea’s circumstances would have foreseen that his failure to nourish Victoria was endangering her life. In particular, the defence turned on whether Mr. O’Dea was incapable of properly caring for Victoria because of a head injury he sustained eight days before her death.
[135] For the reasons set out above, I have rejected Mr. O’Dea’s argument that he was rendered incapable of caring for Victoria because of a head injury. That theory is utterly implausible and inconsistent with all the evidence. The only plausible inference from all the evidence is that a reasonable person in Mr. O’Dea’s circumstances would have foreseen that his failure to nourish Victoria was endangering her life.
Failure to Provide Necessities
[136] Based on the evidence, it is apparent that Mr. O’Dea failed to provide Victoria with adequate food and water. Moreover, it was objectively foreseeable that such failure would seriously risk Victoria’s health. In the circumstances of this case, a reasonable and prudent caregiver would have foreseen the risk of bodily harm that was neither trivial nor transitory. Further, Mr. O’Dea’s failure to properly nourish Victoria went far beyond any mere lapse or gap. Based on the undisputed medical evidence, it persisted for “weeks if not months”. On that basis I easily conclude that it constituted a “marked” departure from the conduct of any reasonable parent.
[137] I am therefore satisfied beyond a reasonable doubt that Mr. O’Dea’s conduct was a marked departure from the conduct of a reasonable and prudent caregiver in the circumstances.
Criminal Negligence Causing Death
[138] In addition to the underlying offence of failure to provide necessities, which I have already determined the Crown has established beyond a reasonable doubt, here the Crown must demonstrate a “marked and substantial” departure from the conduct of a reasonable person. The finding of a “marked” departure is implicit in my conclusion that the Crown has proven a failure to provide necessities. It is also a clearly “substantial” departure. The medical evidence establishes that Victoria died of malnutrition caused by starvation, which persisted over weeks, at a minimum. Mr. O’Dea was her sole caregiver and the only person responsible for administering food and liquids. It is impossible that she did not appear seriously compromised long before her death. He did not take her to a doctor during her final weeks when her weight and health must have been plummeting. I accept completely the uncontradicted medical evidence that this deterioration would have been obvious to any parent.
[139] The case law has established that an accused’s training and experience can rebut an allegation of being unqualified to engage in an activity. Evidence of training and experience may also be used to show how a reasonable person would have performed the activity in the circumstances: Javanmardi, at para. 39. While I do not believe any special training or experience in parenting was required in order to recognize that Victoria was dying of hunger, Mr. O’Dea had already raised a child from a previous relationship. As he put it, “she’s not my first rodeo.” That makes his neglect all the more shocking. It is utterly inconceivable how he could fail to recognize that prolonged, severe deprivation of food and water would be fatal.
Manslaughter
[140] The actus reus is established by virtue of my finding of liability on the charge of failure to provide necessities. As for the mens rea, as noted above, the Crown has forcefully demonstrated that the risk of serious bodily harm, if not death, was objectively foreseeable in this case.
[141] In this case, the evidence is not reasonably capable of supporting an inference other than the guilt of the accused. The Crown has successfully negated any exculpatory possibilities as utterly speculative and unfounded.
Conclusion
[142] For the reasons set out above, I find Mr. O’Dea guilty of manslaughter and guilty of criminal negligence causing death.
Baltman J.
Released: July 29, 2021
COURT FILE NO.: CR-17-452
DATE: 20210729
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
FRANK O’DEA
Accused
REASONS FOR JUDGMENT
Baltman J.
Released: July 29, 2021
[^1]: Exhibit 15: “Powerpoint Photos of 86 Pappain & Hospital” [^2]: Ex. 16: “Autopsy Photographs”. The numbering system used in evidence is one digit lower than the number contained in the exhibit collection, e.g. the photograph referred to as #4 in evidence is identified as #5 in the exhibit.