Court File and Parties

COURT FILE NO.: 21-RM19806-B DATE: 2024/05/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Justin Cassie-Berube

Counsel: Mike Boyce and Chantal Lefebvre, for the Crown Kate Irwin, for the Accused

HEARD: August 28, August 31, September 5-8, 13-14, 18-22, 25, and December 18, 2023

AMENDED REASONS FOR JUDGMENT

The release date of the original Reasons for Judgment was March 1st, 2024, and corrected on May 9, 2024. The explanation for the correction is appended.

Roger J.

[1] The accused, Justin Cassie-Berube, is charged with six counts relating to the death of a five-year-old girl (“the child” or “C.”). He is charged with failing to provide the necessaries of life, criminal negligence causing death, manslaughter, assault causing bodily harm, and assault.

[2] The accused was in a relationship with the child’s mother since about February 2019. It is admitted that during this relationship, the accused assumed a parent/guardian role towards the child. The child’s mother is charged separately from the accused with similar counts, and her trial has not yet occurred.

[3] The accused, the child’s mother, and the child, lived together in Ottawa, Ontario, from February 2019 until the child died on May 15, 2020.

[4] The child had not been feeling well since May 9, 2020. It is agreed that in the weeks prior to May 15, 2020, neither the accused nor the child’s mother sought medical attention for the child.

Background

[5] C. died on May 15, 2020. She was dead when the accused checked on her at about 12:00 p.m. on that day.

[6] Dr. Kepron, the forensic pathologist who examined C., testified that the cause of the child’s death was acute uremia due to intraperitoneal rupture of the urinary bladder caused by blunt impact abdominal trauma to a full bladder. She said that the child’s bladder rupture could have been about a week or less old. Parenthetically, Dr. Kepron was an excellent witness. She answered questions fairly and as best she could for both sides.

[7] The bladder is well protected, and a bladder rupture is rare. More than a minimal amount of force directly on a full bladder is required for its dome to rupture. This could be something striking the abdomen or the abdomen striking something. For example, a blow or a punch to the abdomen could cause such an injury.

[8] Dr. Kepron testified that bladder ruptures are commonly caused by lap belts constricting around the abdomen during motor vehicle accidents. Dr. Kepron testified that another similar immovable object over the entire abdomen could, if at the right location and with enough force, cause a bladder rupture. She said that C. falling on her bed’s guardrail could have caused the bladder rupture. She indicated that if the bed railing had some “give”, this could be a factor to consider as it could reduce the force applied to the abdomen. By contrast, if the child was jumping on her bed, the risk would be increased.

[9] Dr. Kepron was fair in giving her opinion. She said that she could not exclude such an injury occurring even if the child fell on the bed railing from a standing position if the child fell on the wrong spot. Jumping on her bed could make it more likely, and anything that decreased velocity could reduce the risk and make it less likely.

[10] Both Dr. Kepron and Dr. Barrieras, an expert in pediatric urology, indicated that a bladder rupture causes pain. They said that the most immediate symptoms would be pain and discomfort. Dr. Barrieras explained further that pain resulting from a bladder rupture would be significant and noticeable, that it could trigger nausea and vomiting.

[11] The rupture of the bladder itself causes pain, as does the presence of urine in the abdominal cavity. Dr. Barrieras said that the child would not have been well, that she would have wished to stay in bed. He explained that if left untreated, the condition would be expected to worsen, not improve. Uremia is waste accumulating in the victim’s blood. As uremia builds up, the condition gets progressively more severe. It affects the central nervous system and can lead to general weakness, including fatigue, possibly some seizures, and ultimately loss of consciousness, coma, and death. Surgical repair is the only treatment.

[12] Dr. Barrieras testified that a child could be expected to survive four, five, or six days. He said that the earlier the treatment and repair, the lower the mortality rate, but indicated that there is still a fairly significant mortality rate even when treated early. Without surgical repair the condition is progressively more severe and irreversible. If the metabolic imbalance becomes too important, dialysis might be required prior to surgery, complicating the outcome, and leading to a higher mortality rate for late versus cases of early repairs. When done early, Dr. Barrieras said that an isolated bladder rupture is easily repaired by surgery.

[13] Dr. Barrieras also opined that C. falling on the guardrail of her bed could have caused the bladder rupture. However, he unconvincingly attempted to limit his opinion when he strayed outside his area of expertise and said that if the impact bent the bed railing, a bladder rupture from falling on the railing would be improbable because the force of the impact would have been diffused.

[14] Dr. Barrieras testified that, given the child’s presentation, a normal caregiver should have sought some form of medical advice from either a pharmacist, a nurse at some local facility, or at the emergency department of a hospital after 24 to 48 hours. He admitted that the child’s individual symptoms were nonspecific but said that when considered together they should have been worrisome at some point prior to the child dying.

[15] Dr. Kepron also testified that although when considered individually the child’s symptoms would not require medical attention, when considered together they would. She said that a child with a hard stomach, grunting in pain, vomiting, lethargic, lacking appetite, thirsty, unable to hold down food, soiling herself, is very ill and medical attention should be sought. She said that based on the symptoms alone, C. should have been brought for medical attention. She also said that if the accused and/or the child’s mother had linked the symptoms to a physical injury, then it would have been even more imperative that they seek medical attention.

[16] During his June 12, 2021, police interview, the accused ultimately said that he told the child’s mother that they should not go to the hospital because some of the bruises on the child could raise questions. The accused denied this at trial. Nonetheless, he admitted that during the child’s final week he and the mother talked about bringing the child to the hospital, and he admitted knowing throughout that week and as early as May 11 that the child needed medical attention. He indicated that he and the child’s mother made a conscious decision not to seek medical attention. He also agreed that there must have been a reason why they did not bring C. to a doctor but could not recall what it was or why they made that decision. At trial, he steadfastly denied that it was because C. had visible injuries.

[17] The child’s mother testified that they did not take the child to the hospital in part because of marks on the child’s body. She said that she and the accused talked about not taking the child to a hospital because of marks on the child’s body. During her re-examination, she said that bruising on the child’s body was the main reason they did not take the child to a hospital.

[18] C. had many bruises and injuries on her body at the time of her death. Dr. Kepron testified at length about the child’s injuries and bruises, and photos and descriptions are available, including at Exhibits 35, 36, and 39.

[19] C. was born in 2015. When C. was about three months old, the Children’s Aid Society removed C. from her mother and biological father. The mother testified that C. was removed from her care because the Society was concerned about fighting between the mother and the biological father. The mother also said that the biological father was abusive towards her. C. was only returned to the care of her mother when C. was about three and a half years old.

[20] The mother met the accused online in January 2019. At the time, the mother lived in Alberta. A few weeks later the mother came to Ottawa to meet the accused in person. In February 2019, the mother, C., and the accused moved in together in Ottawa.

[21] The mother said that their relationship was good until the end of 2019. She said that they argued over money and his jealousy issues. The accused admitted that he had serious jealousy issues. The mother also said that the accused punched holes in the wall and threw things around when he was angry. The accused admitted that he did so and that he had serious anger issues.

[22] The accused admitted that he hit the child, and during his cross-examination said that he took his anger out on the child when she did something wrong. The mother thought of leaving him more than once, but she was worried that he might commit suicide because the accused frequently threatened suicide, as part of an apparent effort at controlling the mother. This is corroborated by numerous text messages between the accused and the mother, for example on November 29, 2019, and April 12, 2020, when the accused threatened suicide, and on January 6, 2020, when the mother complained of fighting every day since the new year started. The accused admitted that he understood that his jealousy helped him control the mother.

[23] The mother testified that the accused was violent with the child. She said that he grabbed the child, tossed her around, spanked her, put soap in her mouth, smacked her lips and face, threw her on the bed, squeezed her ankles, grabbed her forearm, yanked her forward, and hit her on top of the head with a wooden spoon.

[24] In a text message from November 5, 2019, the mother complained to the accused “I just don’t wanna see her face all bruised and fucked up no more. I don’t wanna go out and have the cover her face up just cause there’s marks on it. That’s suspicious.” And he responded “OK. I’m sorry I understand what u mean, u do have every right to yell and get mad. I’m sorry for what I did”.

[25] During his cross-examination, the accused admitted that he hit the child on the lips and mouth, and that he slapped her face. In his June 12, 2021, police statement, he admitted that he slapped the child’s mouth, slapped her “bum”, hit her, and admitted that he caused some of the injuries visible on the summary of the post-mortem report (Exhibit 39).

[26] The accused admitted that he drank “a lot” in the two months preceding the child’s death. He said that his drinking caused him to black out a couple of times and said that he drank “a lot” the night before the child died. He said that as a result, he does not know everything that he did. In his June 12, 2021, police statement, he said that he blacked out a couple of times, said that he needs help if he is “the monster that hurt a little girl”, and said “because I’m the one that caused everything that’s happening right now”.

[27] On May 8, 2020, a video from a security camera at their apartment showed the accused, the mother, and the child briefly outside their apartment; the child looked normal.

[28] The bulk of the evidence indicates that the child’s bladder was ruptured on May 9, 2020, likely around the dinner or early evening hours. Whether the accused punched the child causing the bladder to rupture is an issue. The mother mentioned that date, mentioned a punch, and the accused eventually indicated that the child injured her abdominal area on that day, after which she started “puking”. The accused denied punching or hitting the child in the stomach and that she fell on the railing of her bed on May 9, 2020. He admitted that the child was ill from that day forward. The accused also admitted that he was drinking on May 9, 2020, and that he does not remember everything that happened on that day. The mother eventually remembered that the child was in a lot of pain that evening.

[29] May 10 was the child’s birthday. In his June 12, 2021, police statement, the accused initially made up a detailed, ‘fairy tale’ version of that day. Unfortunately, none of the celebrations and outings that the accused described in painstaking detail actually happened. All are contradicted by his earlier statement, by the mother’ evidence, by the accused later in that same statement and in his testimony at trial, and by the medical evidence. Instead of a fairy tale birthday, the accused admitted later in that police statement that he slapped the child hard on the mouth and that he caused the injury visible on the child’s hand when he grabbed her violently. During his cross-examination, the accused indicated that the child could not get out of bed on May 10 and continued “puking”. He admitted that they wondered on May 10 if the child not being well was connected to her injury from May 9. The accused said that they were not sure, but he agreed that it was alarming to him to see the child stay in bed all day and not use the bathroom. He agreed that they were concerned.

[30] The mother also said that the child was sick in bed that day, and that she vomited. The mother remembered that the child could not walk and that they carried her to the bathroom. The mother eventually remembered, after looking at an earlier transcript, that she had mentioned to the accused that they should take the child to a doctor, and that he had replied that they could not because they would notice all the bruising on the child’s body. The mother said that she did not pursue the conversation and did not push it further because she did not wish the accused to become angry.

[31] During his June 12, 2021, police statement, the accused agreed that it was probable that they did not take the child to see a doctor for this very reason – he then admitted that he told the mother that they should not go to a hospital because some of the bruises on the child would be raising a lot of questions. The mother searched on her phone “what relaxes stomach muscles”.

[32] The accused testified that on May 11, the child was in bed most if not all day; he did not have a memory of the child getting out of bed that day. The child was sick with no sign of improvement. She was still vomiting. The accused explained that this is why they searched about vomiting and stomach pain. The accused was concerned that the child could have a serious injury to one of her internal organs. The accused admitted that he knew, by this time, that the child needed medical attention. The mother searched what causes constipation, vomiting, and hands and feet to be purple after vomiting, and he admitted that he would have seen the child after she vomited and help clean up. He did not have a memory of seeing her hands and feet purple, but he admitted that the mother would have told him if she had seen that. He agreed that this would have been concerning.

[33] During his cross-examination, the accused admitted that the child had difficulty walking on May 12, that her legs were shaking, and that he was alarmed and panicked about this. He could not explain why they did not bring the child to see a doctor. He texted his mother that day and admitted that he only told his mother about “puking” and constipation, not about the other symptoms. He admitted that he downplayed the truth about the child’s condition to his mother, and he could not explain why he did that.

[34] In his 911 call on May 15, 2020, the accused was highly panicked. He told the 911 operator the child fell a few days before and hit her back and tummy on the edge of the bed. He did not mention constipation. Yet, when texting his mother on May 12, a person that he relied upon for advice, the accused did not tell his mother that the child had difficulty walking or that she had fallen on the edge of her bed. It was put to him that there would be no reason to lie to his mother if the child had accidentally fallen on the bed rather than being punched by him, and he denied punching the child. During his cross-examination, the accused agreed that the child was “pooping” constantly starting on May 12. He said that the child was “pooping” in her bed until she died. This contradicts his stated belief that the child’s ongoing difficulties were caused by constipation. Later that evening, the accused was sufficiently concerned to search how long puking lasts and why a child’s breath smells like poop after vomiting.

[35] On May 13, 2020, the child had diarrhea and vomited. The accused agreed that if they brought the child to the living room or to their room on that day, they had to carry her because the child could not walk. He agreed as well that the child was not constipated by that time, and that he knew that her difficulties were not related to constipation. The child was sick all day and the accused agreed that the child started to make moaning noises like she was in pain (he had mentioned grunting noises during his police statement of May 15, 2020). The accused was not believable when he said that if the child wanted something she could walk normally because this statement contradicts the rest of his trial evidence. He continued to be preoccupied because he searched online, including why the child had ongoing diarrhea. The mother testified that a pharmacist told her to see a doctor if the child’s symptoms did not improve. The symptoms never improved, and they never sought medical attention.

[36] On May 14, 2020, the accused cleaned some vomiting on the child, and his mother informed him that constipation should not cause vomiting. He told his mother that the child was doing better, but during his cross-examination he admitted that the child was not doing better, she was very unwell he said. He conducted several online searches during that afternoon, including “whether low sugar causes dizziness”, “why did I pass out”, “what should I eat after passing out”. Yet, he told his mother in response to her question asking how the child was feeling, that she was okay; he lied to his mother about the gravity and seriousness of the child’s worsening symptoms. He admitted that the child passed out occasionally during that day. He continued searching about the causes of passing out later that evening. This coincides with the medical evidence outlined above, and with the normal progression of uremia. The accused admitted that he knew that week that the child needed to see a doctor. He admitted that they made a choice not to bring the child to a doctor. Yet, he offered no explanation why they made that choice. The mother also testified that she knew that there was something wrong with the child, and that she discussed seeking medical attention with the accused.

[37] During his examination-in-chief, the accused said that the child was “perfect” the morning of May 15, 2020. He said that she had a smile on her face and looked normal, with rosy cheeks when he checked on her before leaving shortly before 11:00 a.m. to get diapers and baby food. The mother testified that the child appeared weak the one time that she checked on her that morning; the mother could not remember what she did that morning, the accused said that the mother was in the living room watching television. The accused returned shortly before noon and discovered that the child was dead. The mother, who rarely showed emotion when she testified, cried when she described that the child was very cold and very stiff when the accused found her.

[38] The police took pictures and videos of the apartment. The child’s bed was equipped with a railing on its left side that could have injured the child’s bladder, as Dr. Kepron indicated. The child’s bed, pillow, and blankets were dirty and soiled, likely with feces and vomit, confirming that she was sick and not improving.

[39] The accused also made several admissions about C.’s dire and deteriorating condition over the week leading up to her death, about the fact that he knew her illness was connected to a physical injury caused on May 9, 2020, and about the fact that he knew the child needed medical treatment and withheld it.

Issues

[40] The ultimate issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.

[41] The specific issues that I must determine include: whether the accused punched the child in the abdomen, causing the bladder rupture; whether there was objective foresight of risk of non-trivial nor transitory bodily harm; whether the accused showed a wanton and reckless disregard for the life or safety of the child; whether a reasonable person in his circumstances would have foreseen that the failure to seek medical attention would lead to a risk of danger to the child’s life or to permanent endangerment to her health, and whether the accused’s conduct was a marked and substantial departure from the standard expected of a reasonable person in similar circumstances.

General Principles

[42] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.

[43] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[44] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to prove that an offence probably or likely occurred.

[45] The assessment of the credibility and reliability of the witnesses’ evidence is important. Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony.

[46] A judge can believe or disbelieve a witness, but still be left with a reasonable doubt considering all the evidence. When considering the testimony of a witness, a judge can accept all, some, or none of a witness’s testimony. If the evidence does not convince the judge beyond a reasonable doubt that the accused committed the offence, the accused must be acquitted.

[47] The accused testified in this trial. The Supreme Court of Canada provided seminal instructions with respect to the analysis of reasonable doubt when an accused testifies in R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. I have paraphrased those instructions, as follows:

a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit.

b) If you disbelieve the accused, consider whether this evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit.

c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt.

Analysis

[48] I did not believe the accused’s exculpatory evidence and, subject to one exception with respect to the bladder laceration, which I will explain, his evidence did not leave me with a reasonable doubt about the charged offences.

[49] The accused was not believable when he attempted to minimize his role in these sad circumstances, and his evidence did not leave me with a reasonable doubt because the accused was essentially his own worst witness. The accused contradicted himself numerous times, admitted that he lied on occasion, and at times grossly embellished parts of his narrative. All of this chiseled away at his credibility and reliability.

[50] The accused gave statements to the police on May 15, 2020 (the day the child died), on June 12, 2021 (the day of his arrest), and he also testified at trial. It is difficult to reconcile his various descriptions of events. For example, he gave conflicting descriptions of how the child was injured, what they did on the child’s birthday, and how the child was feeling on her birthday and at various times during her final week.

[51] Further, the accused’s many admissions that he lied at various times for different and sometimes incomprehensible reasons also impacted my assessment of his credibility and reliability. As well, the accused occasionally provided overly detailed descriptions of certain events and unbelievable word-for-word renditions of conversations with the child, some of which he subsequently contradicted, or which fly in the face of the medical and other evidence. For example, during his June 12, 2021, police statement, the accused described in detail a fairy tale birthday for the child on May 10, 2020. He also said that the child was perfectly fine when she woke up a few hours before she died, that she had nice wide eyes, looked so healthy, perfectly fine, and said that she answered his question about how she was feeling “Good daddy, how are you?”.

Assault

[52] With respect to the count of assault contrary to s. 265 of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”), the Crown is required to prove beyond a reasonable doubt that the accused intentionally applied force to the child, that the child did not consent to the force being applied, and that the accused knew that she did not consent.

[53] The accused admitted that he used soap on the child’s mouth to punish her when she used foul language, slapped the child’s mouth with the back of his hand a few times when she swore, repeatedly spanked her bum over her clothing and on her bare bum, and grabbed her aggressively by the arm and wrist to scare her and bring her where he wanted her to go when she did not listen (including when he grabbed her violently to go to the washroom on her birthday causing her to skip steps). He also admitted that he occasionally grabbed the child by the ankle and arm and threw her on the couch out of anger and admitted that the child did not like being thrown like this. He admitted as well that he slapped the child in the face twice.

[54] Some of these would have caused some of the bruises visible on the child and at Exhibit 36. The accused said that the mother told him not to do it again, and they argued about this. The mother corroborated most of the above and added that part of her concerns included an apprehension that “we have neighbours” who might hear C.’s screaming. The accused said that he tried not to do it again but admitted that he nonetheless did.

[55] These are instances of assault, and the accused is found guilty of assault at count six.

Assault Causing Bodily Harm

[56] Next, I consider the count of assault causing bodily harm, contrary to ss. 267 (b) of the Criminal Code. In addition to proving the above elements of an assault, the Crown must prove beyond a reasonable doubt that the force applied caused bodily harm, and that the risk of bodily harm was objectively foreseeable. Bodily harm is defined as hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling. Intentional refers to the state of mind of the accused when he applies the force. It means on purpose, not by accident, and all the circumstances are considered to determine if the force applied was intentional.

[57] The accused admitted that he slapped the child hard on the mouth on two or three occasions, causing injuries, and admitted that he caused C’s lip to split – tearing of her frenulum (the skin under her lip) is visible at Exhibit 36, pages 17, 20, and 66. The admitted timing of this injury on May 10, 2020, is corroborated by the evidence of Dr. Kepron. The mother also said that the accused slapped the child on her lips with the back of his hand, and that sometimes he did so hard enough for C.’s gums to bleed or her lip to split open. The mother’s evidence about this is corroborated by a text message she sent to the accused on November 5, 2019, to complain that injuries to C.’s face and mouth were “suspicious” and required she “cover her face up just cause there’s marks on it”. The mother said that these assaults hurt the child, that C. would cry.

[58] At trial, the accused said for the first time that the mother also occasionally hit the child on the mouth, but he nonetheless admitted that he hit the child on the mouth for something as simple as the child not doing her letters correctly and admitted that he hit the child on the mouth causing the injury to her mouth a week before her passing and visible at Exhibit 36.

[59] These admitted instances of hitting the child on the mouth causing injuries to her lip or frenulum meet the elements of count five, and the accused is found guilty of assault causing bodily harm at count five of the indictment.

[60] The accused also admitted that he caused the injury which is visible on the child’s hand when he grabbed her violently to go to the washroom on her birthday. However, there is insufficient evidence to determine whether this interfered with C.’s health or comfort.

[61] The child had an abnormal number of bruises and injuries on her body at the time of her death. The autopsy evidence from Dr. Kepron and the photographs at Exhibit 36 are shocking. When considered cumulatively, they raise significant concerns, and would have gravely alarmed any health practitioner examining the child.

[62] The accused and the mother were essentially alone with the child during this time and, moreover, this happened during COVID and its many restrictions on socializing. The mother said that the accused used C. as a punching bag when he was angry at things C. did wrong, that he took it out on C. This is corroborated by the accused’s evidence in cross-examination, when he admitted that he had serious anger problems, that he hit the child, that he possibly caused all the injuries to the child that he was shown during the June 12, 2021 police interview, and that none of these injuries were caused by the mother. The accused admitted that he drank “a lot” at the time, causing him to black out a couple of times, that he does not remember everything he did, and that he and the mother argued a lot that week. He admitted that he was drinking that week, including on May 9 and May 14, 2020, and that he does not actually remember everything that happened. He also said that he went to the LCBO on May 14, drank a considerable amount that evening and said that he possibly caused some of the injuries to the child but does not remember. The accused admitted during his cross-examination that when he gets angry, he sometimes does not remember what he does, and that he possibly struck the child in anger and does not remember. This contradicts his evidence in chief that he had said this during his police interview to protect the mother. The accused also inexplicably lied to his mother about the child’s ongoing symptoms.

[63] The following is a non-exhaustive list of the child’s injuries:

• Bladder laceration from blunt impact to the abdomen when her bladder was full, of a small number of days in age.
• Visible injuries to her face, lips, and chin, contradicting the accused’s narrative that he had not noticed bruises on the child as it would have been impossible not to notice the many bruises on the child’s face and body. Including a laceration on her upper lip and under her upper lip of a small number of days prior to her death in age (Exhibit 36, at pp. 17 and 20).
• Serious injury to her head (Exhibit 36, at p. 75) that was caused by blunt force; either her head hitting something or something hitting her head, and which likely occurred closer to May 2020. Serious enough to leave two round purple sub-scalp bruises on the back of her head.
• A laceration on top of her head, possibly from November 2019 (Exhibit 26).
• Healed rib fractures that were a small number of weeks in age.
• Scarring tissue in her abdomen from an older abdominal injury caused by blunt force like an earlier punch; the injury to her pancreas was from something hitting her or her hitting something. Many days to weeks in age.
• Multiple bruises on the groin and buttocks area, and lower back of a small number of days in age and which, in the opinion of Dr. Kepron, were not from a simple fall (Exhibit 36, at p. 53).
• Multiple bruises on her legs, but these could be common injuries for children.
• Healed fractures to her tibia and fibula, but these could have been two to three years old, before the accused’s involvement.
• Possible cigarettes burn marks on her left lower hip area (Exhibit 36, at p. 57).
• Multiple bruises on the abdomen by blunt force impacts of a small number of days in age.
• Multiple bruises on her arms of hours to days in age.

[64] As I indicated above, I am left with a reasonable doubt whether the bladder laceration resulted from the accused punching the child or from the child falling on the guardrail of her bed as the accused consistently maintained. I appreciate that this could be a fabrication, including because the accused said that the child did not cry when this happened, because the accused unexplainedly lied to his mother about the child’s symptoms, and because of the text messages that the mother and the accused exchanged on May 15, 2020 (in these texts, neither shows any sorrow at the child’s death; only concerns for their potential legal jeopardy). Nevertheless, his explanations about this leave me with a reasonable doubt because the accused blurted this out during the 911 call, when he was obviously quite distraught, and because the mother’s evidence about this is not reliable.

[65] By opposition to the mother who was described as flat and unemotional when the police attended for the death of her daughter on May 15, 2020, the accused was described as crying, very upset and emotional, and hitting the walls with his head and fists. During all this, the accused volunteered to one of the attending police officers that the child had fallen on the guardrail of her bed some days before, and that she had vomited. He repeated this during his police interview of May 15, 2020, and consistently said this thereafter, although I appreciate that some of the details about this varied from time to time and that he also admitted to possibly causing all the injuries to the child listed at Exhibit 39.

[66] Despite inconsistencies in the accused’s evidence, the evidence about a punch comes from the mother who was not a good witness.

[67] The mother frequently took very long pauses before answering simple questions, and frequently asked for questions to be repeated. She volunteered little, which may be understandable considering the serious charges pending against her. However, when testifying in chief about what should have been memorable events, the mother’s memory frequently needed to be refreshed by reading a transcript of some of her earlier statement. This occasionally gave the impression not that she did not remember the events in question, but that she was either reluctant to answer fully or did not remember what she had said earlier and did not wish to contradict herself. Indeed, when she testified without refreshing her memory by reading some earlier statement, the mother frequently contradicted earlier statements. It was also generally apparent that her memory was not reliable. Therefore, I do not rely on the mother’s evidence unless it is corroborated by the evidence of the accused or by some other evidence.

[68] The mother’s evidence about a punch on May 9, 2020, and about some earlier punch is particularly unreliable. She had difficulty describing how the accused hurt the child and did not remember the child’s abdominal area being injured on May 9 until she refreshed her memory by reading parts of an earlier transcript. It was not at all clear what she remembered about a punch that she did not see, and her evidence about what the child said had happened was inconsistent. Similarly, she did not remember the accused punching the child on other occasions until she reviewed an earlier transcript.

[69] Further, this exculpatory explanation for the bladder injury having been caused by a fall on the railing of her bed is also supported as a possible cause by Dr. Kepron’s expert opinion evidence.

[70] Consequently, when I consider the evidence relevant to the cause of the bladder rupture, it leaves me with a reasonable doubt whether the bladder rupture was caused by a punch or by the child falling on the guardrail of her bed.

[71] However, with regards to some of the child’s other injuries, the mother’s evidence that the accused threw the child onto the bed by grabbing one of her hands and legs is corroborated in part by the accused’s admission during his cross-examination that he occasionally threw C. in such a manner on the couch out of anger, and by his admission that this may be what damaged the slats on C.’s bed frame. I do not accept the accused’s explanation that he was playing when throwing C. on her bed because of his inconsistent explanations for the broken bed and his evidence about throwing her out of anger on the couch; it follows that he was also throwing her on her bed in anger as described by the mother. I accept the mother’s evidence that the child would cry, scream, and say “no” because the accused admitted that the child did not like being thrown like this and told him not to do it again. The accused admitted that he continued to do it anyway.

[72] A neighbour testified that about August 2019, she noticed that the child had an injury to her arm. The accused quickly told her that C. had injured her arm while playing, and that they had seen a doctor. It could not have been true that C. saw a doctor because the mother and the accused did not consult a doctor with the child while C. lived in Ottawa. This same neighbour testified quite convincingly that prior to Christmas 2019 she noticed that the child’s leg was injured, that her face was red and swollen, and that she had what looked almost like a black eye. She testified that the child’s face was shocking, bruised, and banged up. The accused told her that the child had fallen off the bed and that she had just seen a doctor.

[73] Considering all the above evidence that I accept, with respect to the offence charged at count five, I find that out of anger the accused frequently hit, struck, and grabbed the child by the arm and ankle and threw her either on the couch or bed knowing that the child did not consent, and that this caused objectively foreseeable bodily harm to the child.

[74] More specifically, I find that the child was hurt after these assaults, that it caused bruises on her wrist and ankles, that she occasionally limped, and that she had to be carried as the mother described because this is supported by the evidence of a neighbour. I find that throwing the child on the couch or on her bed out of anger happened on several occasions. I also find that the accused frequently hit and struck the child, as the mother described, and that this also injured the child, because the accused admitted that he hit and struck the child, including when he was angry, and this is also supported by the evidence of a neighbour.

[75] Further, I find that these assaults caused the serious injury to the child’s head, the rib fractures, the scarring tissue in her abdomen and pancreas, and the multiple serious bruises near her grown and lower back, described by Dr. Kepron and visible at Exhibit 36, and that these meet the elements of count five.

[76] With regards to the child’s other injuries, there is not enough evidence for the Crown to have proven, for these, the elements of count five.

Failure to Provide Necessaries of Life

[77] The accused is charged with failing to provide necessaries of life contrary to subparagraph 215(2)(a)(i) of the Criminal Code at count two of the indictment and contrary to subparagraph 215(2)(a)(ii) of the Criminal Code at count one.

[78] The actus reus for subpara. 215(2)(a)(i) consists of a legal duty to provide the necessaries of life, a failure to provide the necessaries of life, and that the child was in destitute or necessitous circumstances when the parent failed to provide the necessaries of life. The mens rea of failing to provide the necessaries of life under this subsection requires the Crown to prove that the conduct of the accused in failing to provide the necessaries of life represented a marked departure from the conduct of a reasonably prudent person where it was objectively foreseeable that the child was in necessitous circumstances: see R. v. C.O., 2022 ONCA 103, 412 C.C.C. (3d) 184, at paras. 45, 64 (“C.O.”).

[79] The actus reus for subpara. 215(2)(a)(ii) consist of a legal duty to provide the necessaries, a failure to provide the necessaries, and that the failure either endangers the life of the child or causes or is likely to cause the health of the child to be endangered permanently. The mens rea of failing to provide the necessaries of life under this subsection requires the Crown to prove that the conduct of the accused represented a marked departure from the conduct of a reasonably prudent parent/guardian in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child: see C.O., at para. 63, citing R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143.

[80] It is admitted that the accused was a guardian to the child and under a legal duty to provide the necessaries of life to the child. Further, necessaries of life include medical attention that is necessary to protect a person’s health or safety from harm or risk of harm: see R. v. Doering, 2022 ONCA 559, at para. 37, leave to appeal dismissed, . The evidence of Drs. Kepron and Barrieras establishes that medical attention was necessary to protect C.’s health or safety from harm or risk of harm. As a result, the Crown has proven the actus reus of these offenses beyond a reasonable doubt.

[81] ‘Destitute and necessitous circumstances’ include “circumstances in which the child’s health or safety was at risk and the child was in need of protection”: see C.O., at para. 64. ‘Endangers’ means exposing someone to danger, harm, or risk, but does not connote actual injury or damage: see R. v. Palombi, 2007 ONCA 486, 222 C.C.C. (3d) 528, at para. 14.

[82] The standard to apply for the mens rea is an objective one, that of the reasonably prudent person. Section 215 does not impose a duty of perfection, but an objective or community standard of conduct. The question is whether there has been a marked departure, not a marked and substantial departure (i.e., negligence): see R. v. J.F., [2008] 3 S.C.R. 215. A parent is not required to run to a doctor or hospital whenever illness or the prospect of injury arises.

[83] With respect to the mens rea of each of these two offences, the accused’s own testimony about his failing to seek medical attention for the child and his description of C.’s dire and deteriorating health amount to a confession to the offences of failing to provide the necessaries of life. The accused admitted he was involved in the care of the child, and he participated in decision-making about her care during her final week. The accused also admitted that he failed to prioritize the child’s medical welfare over his and the mother legal jeopardy as the child had obvious bruising and injuries that would have triggered some investigation.

[84] The accused agreed that C. suffered a physical injury on May 9, 2020. I find from his evidence, from the mother’s evidence, and from the medical evidence that the child injured her abdomen and suffered a bladder laceration around the dinner hour of May 9, 2020.

[85] Even if I accept the evidence of the accused about how C. was injured, the accused knew as of that time that the child had injured her abdomen in a traumatic incident because she complained of a fall and was “holding her tummy”. The accused made the connection between the child’s symptoms and her physical injury. This is apparent from the lies to his mother and from what he initially outlined to the 911 operator and to the attending police officers.

[86] The accused testified that following the fall off the bed on May 9, the child was unable to keep solid food or juice down, she would vomit it up. He was told by the mother that C. was up through the night vomiting. The accused testified that C. had never vomited with constipation before. He agreed that vomiting, in his mind, was an indication that something else was wrong. The accused knew early on that the child was suffering from something more serious than constipation.

[87] The medical evidence confirms that the child would have been in significant pain and discomfort, that her conditions would have progressively deteriorated, and that after about 24 hours her condition would be serious enough for fatigue to also set in.

[88] On May 10, the child was sick throughout her birthday, and seemed to be worse than the day before. This was memorable because the accused and the mother had planned a birthday for the child, yet she did not try to get out of bed the entire day. The accused found that alarming. The accused admitted that as early as May 10 he was turning his mind to the possibility that C.’s illness was connected to her physical injury of May 9. He agreed that this would be alarming. He agreed that C. had never vomited from constipation before, and that vomiting was a red flag that this was something other than constipation.

[89] The accused agreed during his cross-examination that he knew as of May 10, 11, and 12 that there was something wrong with C., that he should have taken her to a doctor, yet he had no explanation why he did not.

[90] On May 11, the accused testified that C. was still sick, unable to get out of bed, and vomiting. He knew that the child’s condition was worsening. He was searching the internet on vomiting, constipation, and “body diagrams” because he was concerned that there could be serious injury to one of C.’s internal organs and he was trying to figure out what it was. He agreed that although he does not remember whether he saw C.’s hands and feet turn purple after vomiting, the mother would have told him about this, and he agreed that this would have been concerning to him. He agreed that he knew on that day that C.’s condition called for medical attention.

[91] On May 12, the accused agreed that C. was experiencing pain while walking, that she had “spaghetti legs”, and that this panicked and alarmed him. He agreed that notwithstanding this he did not seek medical attention for the child despite being aware that he had options including virtual appointments. During a text exchange with his mother on May 12, the accused did not tell his mother about C.’s difficulty walking or the pain she was experiencing. He agreed there would be no reason to hide symptoms from his mother and that he knew by then that the child was not constipated. By this time the child had diarrhea, was soiling her bed, and was unable to get out of bed on her own to go to the bathroom. The accused could not explain why he lied and minimized the child’s symptoms to his mother. It is apparent from the evidence that he did so as part of an effort to avoid detection for child abuse, which he and the mother knew would happen if they sought medical attention for the child.

[92] The accused agreed that the child spent most of May 13 in bed, still had difficulty walking, still had a hard stomach, was still vomiting, and was still soiling her bed. She was sick all day, was in pain, and made grunting noises. He was concerned and was searching the internet. The accused lied to his mother again in a text exchange and minimized the child’s symptoms and difficulties.

[93] On May 14, the accused was still worried about the child’s worsening condition and was still searching the internet. The child was in and out of consciousness by this time as confirmed by the accused’s internet searches about “dizziness” and “passing out”. During his cross-examination, the accused agreed that he knew that the child needed medical attention and that he was persuading the mother not to take the child for treatment. He could not explain why he did this.

[94] It is clear from the evidence that the failure to provide the necessaries of life endangered C.’s life, and that the child was at the time in destitute and necessitous circumstances.

[95] It is equally clear from the evidence that the accused’s conduct was a marked departure from the standard expected of a reasonable person in similar circumstances. A reasonable parent would have foreseen from the child’s presentation and worsening symptoms that failure to seek medical attention for the child would lead to a risk of danger to the child’s life or to a risk of permanent endangerment to her health. Such a reasonable parent would similarly have foreseen that the child was in necessitous circumstances. The accused’s unexplained failure in such circumstances to seek medical attention for the child was a marked departure from this standard.

[96] The accused and the mother realized early on that the child was at risk and that she needed medical attention, but nonetheless decided not to take the child to the hospital to protect the accused and the mother from legal jeopardy. There is no reasonable explanation for why the accused and the mother would not have taken this very sick and injured child for medical care at the latest by May 12, 2020.

[97] Consequently, the accused is found guilty of failing to provide the necessaries of life at counts one and two of the indictment.

Criminal Negligence

[98] The accused is charged with causing the child’s death by criminal negligence contrary to s. 220 of the Criminal Code. Section 219 defines criminal negligence as a person who in doing anything or 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.

[99] To convict the accused of criminal negligence causing death in this case, the Crown must prove the following beyond a reasonable doubt:

• That the accused had a legal duty to seek medical attention for the child as her guardian – this is admitted.
• That the accused failed to carry out his legal duty to seek medical attention for the child as her guardian and that in failing to perform the duty, the accused showed, from an objective standpoint, wanton or reckless disregard for the life or safety of the child.
• And that the accused’s conduct caused the child’s death or contributed significantly to it.

See J.F., [2008] 3 S.C.R. 215, at para. 68.

[100] To establish a wanton or reckless disregard for the life or safety of the child, the Crown must prove that the accused’s conduct in failing to seek medical attention for the child met the elevated standard of a marked and substantial departure from what a reasonably prudent person would do in similar circumstances: R. v. Javanmardi, [2019] 4 S.C.R. 3, at para. 21. To prove a marked a substantial departure, the Crown must demonstrate that either,

• the accused was aware of (recognized) an obvious and serious risk (danger) to the life or safety of C., but went ahead anyway despite his knowledge of that risk (danger), or
• the accused gave no thought to the risk (danger) to the lives or safety of others.

See R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.).

[101] The offence of criminal negligence causing death imposes a modified objective standard of fault – the objective reasonable person standard: see Javanmardi, at para. 20. Short of incapacity to appreciate the risk or incapacity to avoid creating it, neither of which is applicable to the circumstances of this case, personal attributes such as age, experience and education are not relevant. The standard to assess the reasonableness of the conduct is the conduct expected of the reasonably prudent person in the circumstances the accused found himself in when the events occurred: see R. v. Beatty, [2008] 1 S.C.R. 49, at para. 40.

[102] Applying the above to the circumstances of this case, the accused’s conduct in failing to seek medical attention for the child was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. The evidence establishes and the accused admitted that he was aware of the danger to the life or safety of the child and his failure to seek medical attention despite his knowledge of that risk or danger to the child can only be explained by his fear of detection for his child abusing conduct or fear of other legal jeopardy for the many visible bruises and injuries to the child. As I stated above, this was not a reasonable justification. A reasonably prudent person would have sought medical attention at the latest by May 12, 2020, irrespective of the potential legal jeopardy that may ensue; the accused’s conduct is a marked and substantial departure from that standard.

[103] The evidence of Drs. Kepron and Barrieras establishes that the accused’s failure to seek medical attention for the child caused her death or contributed significantly to it.

[104] The accused is therefore found guilty of count three of the indictment.

Manslaughter

[105] Manslaughter is defined at s. 234 of the Criminal Code as culpable homicide that is not murder or infanticide. It is a residual category of unlawful killing for a culpable homicide where the accused lacked the intent required for murder.

[106] To make out the actus reus of unlawful act manslaughter, the Crown must prove that the accused committed an unlawful act (the predicate offence), and that the unlawful act caused the victim’s death: see Javanmardi, at para. 25. The unlawful act must also be objectively dangerous, that is, likely to injure another person: see R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 961.

[107] To make out the mens rea for manslaughter, in addition to the requisite mens rea for the predicate offence, the Crown must prove that a reasonable person in circumstances similar to that of the accused would have foreseen a risk of bodily harm that was neither “trivial nor transitory”: see R. v. Creighton, [1993] 3 S.C.R. 3, at p. 44, per McLachlin J. (as she then was), dissenting in part.

[108] As indicated above, I am left with a reasonable doubt whether the accused punched the child or otherwise delivered the fatal blow which lacerated the child’s bladder and caused her death. This leaves two possible unlawful acts:

• Failing to provide the child the necessities of life by way of medical care when she was in destitute or necessitous circumstances at subpara. 215(2)(a)(i); and/or
• Failing to provide the necessaries of life where doing so endangered the life of the child, or caused or likely caused her health to be endangered permanently at subpara. 215(2)(a)(ii) of the Criminal Code.

[109] Here, as per the above analysis, the unlawful act is made out pursuant to both subparas. 215(2)(a)(i) and (ii).

[110] Applying the facts of this case to the elements of this offence, I note first that it is admitted that the accused was under the legal duty as guardian to provide the necessaries of life in the form of medical attention for the child.

[111] Next, as per the above analysis, I find that the accused failed to perform the duty to provide the necessaries of life to the child, and that the child was in destitute or necessitous circumstances. I also find, as per the above analysis, that the accused’s failure to perform the duty endangered the life of the child or caused the health of the child to be endangered permanently, that his failure to perform the duty constituted a marked departure from the standard of what a reasonably prudent parent or person would have done in the circumstances, and that it was objectively foreseeable to a reasonably prudent parent or person that the failure to seek medical attention would lead to a risk of danger to the child’s life or to a risk of permanent endangerment to the child’s health. I find as well, as per my analysis of the evidence above, that it was objectively foreseeable to a reasonably prudent parent or person that the child was in necessitous circumstances. This is apparent from the evidence.

[112] With respect to the mens rea for unlawful act manslaughter, there is no lawful excuse for the accused’s failure to perform the duty, and the failure to provide medical attention to the child was dangerous in the sense that a reasonable person in the same circumstances as the accused would have realized that the failure to seek medical attention would likely put the child at risk of bodily harm in that it could hurt or injure the child’s health or comfort in something more than a brief and minor way.

[113] Here, the accused failure to provide the necessaries caused the child’s death, as it is clear from the evidence that the accused failure to seek medical attention contributed significantly to the child’s death.

[114] Consequently, the accused is found guilty of manslaughter at count four of the indictment.

Conclusion

[115] The accused is found guilty of all six counts of the indictment.

P. E. Roger J. Released: May 9, 2024

Appendix

The publication ban issued in the March 1st Reasons for Judgment was revoked on May 9, 2024. As such, the accused name is now published in this decision.