COURT FILE NO.: CRIM J(P) 500/20
DATE: 2022/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Keeley Holmes, Counsel for the Crown
- and -
Tiffany Rudkin
Gregory Jones, Counsel for the Accused
HEARD: September 13 – 15, 17, 20 – 23, 2021 at Brampton, Ontario
REASONS FOR JUDGMENT
Bloom, J.
I. INTRODUCTION
[1] The accused is charged with the following offense:
That she, on or about the 11th day of February 2019, at the City of Mississauga, in the Central West Region, did wound Madison Stewart thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.
[2] The Accused admits that her daughter, Madison Stewart (“Madison”), suffered a laceration to her forehead on February 11, 2019, in the City of Mississauga, but contends that the injury was accidental.
[3] The case for the Crown is entirely circumstantial.
[4] The only issue at trial was whether the Crown has proven beyond a reasonable doubt that the Accused inflicted the injury intentionally.
II. UNCONTESTED FACTS
[5] The Accused lived with her partner, Andrew Stewart (“Andrew”), and their two children, Jacob Steward (“Jacob”) and Madison Stewart, at their basement apartment in Mississauga.
[6] On the morning of February 11, 2019, Madison suffered a laceration to her forehead. The Accused telephoned Andrew regarding the injury at 10:52 a.m. The Accused attended with Madison at the walk-in medical clinic in the neighbourhood at 11:20 a.m. The walk-in clinic doctor recommended that the Accused take Madison for stitches to a hospital in view of her age and the severity of the injury.
[7] The Accused called 911 at 12:00 p.m.; paramedics responded and took Madison to the hospital by ambulance with the Accused.
[8] There, Dr. Rick Mann cleaned and anaesthetized the injury and applied 3 deep stitches and 6 skin layer stitches to close the wound. The cut had been long, with clean margins, and to the depth of the skull.
[9] The Children’s Aid Society took the children into care on the evening of February 11, 2019. Later that evening, from approximately 9:00 p.m. to 10:00 p.m., the Accused attended voluntarily at a police station for a videotaped interview by Officer Blair Kerfoot of the Peel Regional Police.
[10] On April 24, 2019 the Accused again attended voluntarily for a videotaped interview by Officer Shawn Birnie of the Peel Regional Police.
[11] At that point, the Accused had been arrested on the charge before the Court.
[12] Dr. Sarah Schwartz is a pediatrician at the Hospital for Sick Children in Toronto, and an expert in pediatric maltreatment and the identification and interpretation of childhood injury. By the time of the interview by Officer Birnie, Dr. Schwartz had examined Madison and prepared and provided to the police a report on the injury. Dr. Schwartz testified for the Crown and was not cross-examined.
III. GOVERNING LEGAL PRINCIPLES
[13] There is no dispute as to the applicable legal principles.
[14] In R. v. Villoroman, 2016 SCC 33, [2016] 1S.C.R. 1000 at paras. 30, and 35 to 41, Justice Cromwell for the Court set out the following principles regarding the issue of reasonable doubt in a case where the Crown’s evidence is exclusively circumstantial, such as the case at bar:
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic 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.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
[15] In R v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, Justice Cory for the minority set out the following principles which apply to cases, such as the one at bar, where the credibility of an explanation offered by the Accused is in issue:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
IV. ARGUMENTS OF THE PARTIES
A. Arguments of the Crown
[16] The Crown alleges that the Accused, frustrated by Andrew’s potential loss of a day’s pay when they had already planned to spend for a birthday party and gifts for Madison, assaulted her when she was fussy.
[17] The Crown concedes that, in view of the circumstantial case against her, I must consider all of the evidence and exclude any reasonable explanations for the injury in order to find the Accused guilty.
[18] The Crown invites me to use my common sense in considering all of the evidence, and submits that I should not just consider the expert evidence of Dr. Schwartz.
[19] The Crown invites me to reject the explanation of the Accused who testified that the injury to Madison arose from a malfunction of her highchair.
[20] The Crown relies particularly on certain items of evidence. These include the evidence of Dr. Schwartz, which the Crown contends characterizes the Accused’s explanation as very unlikely.
[21] Another item is what the Crown characterizes as the evolving explanation of the Accused, which came to include at times the collapse of the highchair, a change in her location in relation to the chair from behind it to in front of it, and a change in whether Madison’s head could have hit the floor as opposed to the trays attached to the chair.
[22] Another item of evidence relied upon by the Crown is the Accused’s cleaning up Madison’s blood, which the Crown alleges was to prevent an identification of the location of the injury.
[23] The Crown also alleges that the Accused waited for Andrew to return home before taking Madison to the walk-in clinic so that she could have Andrew take her and avoid having to explain the injury herself.
B. Arguments of the Accused
[24] The Accused contends that the injury to Madison was an accident.
[25] She argues that her evidence to that effect was credible; that the Crown’s theory is not persuasive; and that she should, therefore, be acquitted.
[26] She contends that her statements about the incident are consistent in that the highchair is central to all of them. In that regard, she argues that her explanations of the incident to Officers Kerfoot and Birnie were substantially the same. She asserts that if all of her statements about the incident were perfectly consistent, that fact would raise suspicions about the veracity of the explanation.
[27] She points to aspects of her conduct which were inconsistent with an intentional infliction by her of injury to Madison, including her willing provision of information regarding the incident to the paramedics, her holding and hugging Madison in the ambulance on the way to the hospital, and her concerned and attentive conduct in relation to Madison while the emergency doctor stitched her wound. In that same vein the Accused points to the testimony of the emergency doctor that Madison was not fearful of her mother and appeared bonded with her.
[28] The Accused disputes the Crown’s theory that she inflicted the injury on Madison out of anger and frustration because Andrew was going to lose a day’s pay needed for Madison’s birthday celebration, and because Madison was being fussy. The Accused argues that that theory is speculative and not a reasonable inference from the evidence.
[29] The Accused argues that that theory is weak for the following reasons: (1) Andrew had communicated to the Accused before the incident that he might not be losing a day’s work and pay; (2) the Accused testified that she had in recent years been in stressful situations and had not assaulted her children; (3) there was no physical evidence that the injury to Madison occurred anywhere except the highchair; (4) there is photographic evidence that there were blood stains on the highchair trays and the location between the coffee table and couch where the highchair sat at the time of the incident according to the Accused; (5) I should accept the evidence of the Accused that she cleaned up the blood on the floor to prevent Jacob from trying to clean it up and thus risking his health, rather than to hide the location of the assault as alleged by the Crown; (6) when Andrew had previously lost a day of work and pay, the Accused had not assaulted her children.
[30] The Accused points out that Dr. Schwartz was not an expert in biomechanics and applied her own common sense in arriving at her expert opinion.
[31] The Accused argues that she called Andrew and asked him to come home after the incident, not to avoid explaining the incident herself, as argued by the Crown, but because Madison was his daughter too and she needed his help.
V. ANALYSIS
[32] I have considered all of the evidence and the arguments of the parties. I have applied to the evidence the principles set out in W.(D.), supra and Villoroman, supra. While I am unable to accept the evidence of the Accused, I am left in reasonable doubt by it. Further, I find that the evidence viewed logically and in light of human experience is reasonably capable of supporting an inference that the injury suffered by Madison was accidental, and that, therefore, the Accused is not guilty. I will now elaborate on these conclusions.
[33] The Accused in her testimony explained Madison’s injury. She picked up Madison and strapped her into her highchair with a five-point harness. She pushed the chair from behind and lifted it to take it over a small area rug. When she picked it up, she felt a vibration or jolt. When she went to put it down on the tile floor, it started to tip. Madison’s head went forward; it looked to her as if it hit the outer edge of the tray on the chair (the tray was actually two trays - one fitting into the other). She took her out of the chair as fast as she could. She saw the cut on Madison’s forehead and applied a cloth to it to stop the bleeding. The accident happened in about 10 seconds.
[34] In cross-examination, she conceded that she had incorrectly told Officer Kerfoot that she had been in front of the chair at a critical point during the incident. She explained that error based on her fatigue and stress at the time of the interview.
[35] In cross-examination she also conceded that she told Officer Birnie that Madison’s head could have hit the tile floor during the incident. She testified that she did not see what surface Madison’s head it.
[36] Dr. Schwartz was the only witness called to give expert evidence in the area of pediatric maltreatment, and identification and interpretation of childhood injury. She was called by the Crown and not cross-examined.
[37] She testified that the injury to Madison could have been caused by blunt force impact, a sharp object such as a corner of a table causing the incision, or a combination of the two.
[38] She testified that she was given the account of the incident that Madison was sitting in the highchair, was buckled up, her mother pulled the chair forward, it tipped to a 45 degree angle, the mother realized the chair had locked, and Madison’s head hit the tray on the highchair causing the injury.
[39] She testified that the explanation she was given was highly unlikely to be the true explanation of the injury, because the child would not likely strike the tray if she were appropriately buckled into the chair; the force created in the few inches of movement of the head to the tray would not be enough to create the injury; and even if the child’s head hit the tray with much force, the properties of the tray surface, including its hardness and sharpness, would not be enough to create the injury.
[40] I cannot accept the testimony of the Accused because of the uncertainty of it in respect of her positioning during the incident and in respect of what surface Madison’s head may have struck, as well as because of the testimony of Dr. Schwartz which I accept as credible and reliable.
[41] However, the evidence of Dr. Schwartz still leaves open the reasonable, although unlikely inference, that the incident occurred with Madison’s head hitting the tray. Moreover, on all of the evidence, I find that it is also a reasonable inference that the injury was suffered in an accidental manner other than one in which Madison’s head hit the tray.
[42] Accordingly, I find that the charge against the Accused is not proven beyond a reasonable doubt, and I acquit her.
Bloom, J.
Released: January 19, 2022
COURT FILE NO.: CRIM J(P) 500/20
DATE: 2022/01/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
-- and –
Tiffany Rudkin
REASONS FOR JUDGMENT
Bloom, J.
Released: January 19, 2022