Court File and Parties
COURT FILE NO.: CR-19-40000706 DATE: 2024-01-05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – NATHANIEL MCLAUGHLIN Accused
Counsel: Frank Schembri, for the Crown Earl Glasner, for the Accused
HEARD: October 17, 18, 20, 23, 24, 25, 27, 30, 31, 2023
B.A. Allen J.
REASONS FOR JUDGMENT
BACKGROUND
[1] Nathaniel McLaughlin, age 23 at the time of the incident, faces one charge of aggravated assault on Khalaiya Ross on January 4, 2019. Khalaiya is the daughter of Shania Ross, age 22 at the time. Ms. Ross was dating Mr. McLaughlin. Khalaiya, who was 13 months old at the time of the incident, was one of Ms. Ross’s four children.
[2] This proceeding came before me as a judge-alone trial. The Crown called several witnesses, police officers, an EMS worker, Ms. Ross, and medical specialists involved in assessing and addressing Khalaiya’s medical conditions. Mr. McLaughlin did not call a defence as is his right.
[3] At the time of the incident that caused the injuries, Mr. McLaughlin resided with his father, David Johnson, at 2 Mascot Place in Toronto. Mr. McLaughlin invited Ms. Ross to move with her four children into his father’s apartment. The couple and the children had lived together at the father’s apartment for about two months at the time of the incident. Mr. McLaughlin is not the biological father of any of the children but took on the role of a parent with the children.
[4] On January 4, 2019, at approximately 7:10 p.m., Mr. McLaughlin was outside 2 Mascot Place when a friend of his father called 911 for him. Mr. McLaughlin was there carrying Khalaiya who appeared to be unconscious and not breathing. Paramedics arrived at 2 Mascot Place and transported Khalaiya and Mr. McLaughlin to North York General Hospital (“the NYGH”).
[5] The police at 33 Division were contacted. At 9:53 p.m., D.C. Noreen Gordon learned of a radio call from the NYGH. A nurse reported that a child was brought in with injuries not consistent with an accident and that she may not survive. At that time, both Ms. Ross and Mr. McLaughlin were at the hospital.
[6] D.C Gordon arrived at the hospital at 10:01 p.m. and spoke to the nurse who confirmed that the child had suffered a traumatic injury inconsistent with a medical condition or an accident. The NYGH decided to transport the child via ambulance to the Hospital for Sick Children (“the HSC”) in downtown Toronto. Ms. Ross travelled in the ambulance with Khalaiya. Mr. McLaughlin did not have transportation so he accepted a ride to the hospital with DC Gordon and with her partner in the patrol car.
STATEMENTS TO THE POLICE
[7] The Crown brought an application under Rule 30.01 of the Superior Court of Justice Rules of Criminal Proceedings to admit statements to a person in authority. The concern under that rule is that the statement was not obtained involuntarily. The defence did not file a response to the application and ultimately did not challenge admissibility. I admitted the statements. In any case, on my review of the transcripts, I saw no evidence of involuntariness on Mr. McLaughlin’s part.
[8] The Crown has chosen to introduce the transcripts of those statements into evidence as a substantive part of its case in chief before knowing whether Mr. McLaughlin would elect to testify. Courts have spoken on this situation:
In R. v. Dubois, [1985] 2 S.C.R. 350, Justice Lamer, as he then was, observed that the presumption of innocence,
imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence. (Para. 10).
What flows from Dubois, and more generally from the presumption of innocence, is the requirement that the Crown put the case the accused is required to meet before the court prior to the accused being put to his election as to whether he chooses to testify.
Where an accused person has given a statement to the police, the Crown often chooses to introduce it into evidence as a substantive part of its case in chief. There may be a number of reasons for this: to introduce inculpatory utterances; to demonstrate the demeanour of the accused; to adduce utterances that the Crown seeks to prove false through other evidence; or to demonstrate the manner in which the accused responded to certain questions.
[R. v. Osborne, 2019 ONSC 839, at paras. 8, 9 and 12].
[9] Utilizing the statements, the Crown sought to put before the court: Mr. Laughlin’s account of what happened to cause the injuries; any inconsistencies within his statements and with other evidence; his reactions to being confronted with questions about ways, alternate to his account, that could have caused the injuries; and to question his own involvement in the possible alternate causes of the injury. The Crown brought this evidence in through the testimony of the two officers who interviewed Mr. McLaughlin. As is his right, Mr. McLaughlin elected not to testify.
There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal.
[R. v. Drake; [1971] 1 C.C.C. (2d) 396 (Sask. Q.B.)]
[10] In both R. v. Osbourne and R. v. Drake, the defendant testified at trial, but the principles enunciated in those cases apply to the use of the police statements in the case at hand.
By DC Gordon
[11] Det. Chris Boland drove the patrol car that transported DC Gordon and Mr. McLaughlin to the HSC. DC Gordon spoke to Mr. McLaughlin in the patrol car on January 4th between 10:49 p.m. and 11:24 p.m. at which time they arrived at the HSC.
[12] At the start of the statement, Mr. McLaughlin thanked the police for their assistance and their treatment of him. DC Gordon advised him when civilians are in patrol cars they are video and audio recorded. The officer asked Mr. McLaughlin for background information on the children. He provided the names and ages of the four children. Mr. McLaughlin told the officer he was like a father to Khalaiya.
[13] Mr. McLaughlin told the officer he and Ms. Ross were planning on the evening of January 4th to go out for dinner for Ms. Ross’s birthday. He explained that she left Khalaiya with him and took the other three children to her mother’s home and would return to go out with him that evening.
[14] Mr. McLaughlin then gave his account of what happened with Khalaiya.
[15] Mr. McLaughlin said that at about 7:05 p.m. he got out of the shower and noticed on the baby monitor that Khalaiya was awake in her bed. He wanted to change her diaper so he put her on the futon in the living room and left her sitting on the edge. Mr. McLaughlin described the futon mattress as being three inches thick and lying directly on the floor. He said he turned to go a few steps to get a diaper and some wipes. Mr. McLaughlin said he turned around and saw Khalaiya had turned over on the edge of the futon and hit her head on the floor.
[16] Mr. McLaughlin also mentioned that the futon was near some speakers in the living room. He suggested without much discussion that her head might have hit the speakers and the floor at about 7:05 p.m.
[17] Khalaiya started crying and Mr. McLaughlin picked her up and she stopped crying. He saw clear saliva coming from her mouth. He gave her water and she began to choke. Mr. McLaughlin patted her on the back and then put her down and went to get a diaper and wipes. He turned and saw her falling asleep. He picked her up and she seemed to faint but she was breathing.
[18] Khalaiya had red sores on her face. Mr. McLaughlin explained to the officer that her face got burned when he was using a hair dryer to dry her wet hair. Then she would pick at the sores and they would not heal.
[19] Mr. McLaughlin’s father was in his bedroom. He asked his father for help. His father told him to get a blanket and he did that. Khalaiya began to wheeze. He put cold water on her face to wake her up. She then seemed to stop breathing and he gave her mouth-to-mouth resuscitation. She had something in her mouth and he attempted to remove it. Mr. McLaughlin then saw feces come from Khalaiya but he did not know where it came from.
[20] Mr. McLaughlin decided an ambulance should be called. The father asked a friend to help with transportation to the hospital. But in the end, 911 was called and the dispatcher gave Mr. McLaughlin instructions on how to treat Khalaiya. The ambulance arrived at about 7:10 p.m. and took Khalaiya to NYGH. Mr. McLaughlin was transported to the hospital by ambulance.
[21] Mr. McLaughlin said that only he and Ms. Ross babysat Khalaiya. He said his father did not usually babysit but was going to babysit that evening when he and Ms. Ross went out for dinner. Concerning others involved in Khalaiya’s life, Mr. McLaughlin indicated that Ms. Ross had last taken her children days earlier to her mother’s and aunt’s homes around the Christmas holidays.
By DC Kempster
[22] DC Kempster worked with the Child and Youth Advocacy Centre, a unit with the Toronto Police Service involved with investigating child abuse cases. He received information that an injured child was on the way to the HSC and the police were asked to attend there. When D.C. Kempster arrived at the hospital DC Gordon reported to him what Mr. McLaughlin had told her on the way to the hospital. She related to DC Kempster that the doctors at the HSC had indicated that the child may die from her injuries.
[23] DC Kempster spoke to Ms. Ross, who told him she was not at the apartment when Khalaiya was injured, so she did not know what happened. DC Kempster then asked if Mr. McLaughlin would speak to him on video. Mr. McLaughlin agreed to provide a statement and the officer and Mr. McLaughlin went to an interview room in the hospital. The interview began on January 5th at 4:20 a.m. and ended at 5:50 a.m. DC Kempster gave Mr. McLaughlin his rights to counsel and caution and told him he was not under arrest.
[24] Mr. McLaughlin said that he enjoyed family life with Ms. Ross and the four children during the two months they resided together. He indicated he got along well with the children. He looked at himself as their father. Mr. McLaughlin insisted that he had never physically disciplined the children. He said neither Ms. Ross nor his father did so either.
[25] Mr. McLaughlin gave a similar description of the incident as he provided to DC Gordon. He told DC Kempster that he turned around toward Khalaiya while getting a diaper. He told the officer he then, and I quote, “[I] saw her in action the moment of boom, her head on the side, on the floor. But it doesn’t phase (sic) me due to the fact is kids always injure themselves, the... the... no matter what you do to... they’re rambunctious”. Mr. McLaughlin did not mention the possibility that she hit her head on the speaker. He mentioned that Khalaiya vomited when he was holding her in the apartment and some vomit was deposited on his shirt.
[26] Mr. McLaughlin stated that he picked her up and told her to stop crying and went to get her some water. He spoke of her choking and spitting up clear saliva and of him going once again to get a diaper and seeing her appear to be sleeping; and that when he picked her up she was coughing so he splashed some cold water on her face. Mr. McLaughlin also told DC Kempster that he enlisted the help of his father and then he was transported with Khalaiya by ambulance to the NYGH.
[27] DC Kempster asked Mr. McLaughlin what he learned from the doctors at the HSC. One thing Mr. McLaughlin mentioned was that he was told Khalaiya had a blood clot on her brain. Mr. McLaughlin then offered that her biological father has sickle cell anemia which is a condition characterized by the development of blood clots. Mr. McLaughlin said of this: “i'm like you know we have a whole different ball game now”... “you see what I'm trying to say like but the same ball game with baby girl.”
[28] DC Kempster asked what Mr. McLaughlin thought caused the injuries. He responded: “I would have said 50/50.” Mr. McLaughlin told DC Kempster that he thought that Khalaiya hitting her head on the hard floor was “50/50” the cause of her injuries. However, he also suggested that the injury could be the result of the kids playing and maybe hitting each other or that a child could hurt themselves and blame it on one of the other children.
[29] Mr. McLaughlin said he did not injure Khalaiya. Nor did anyone including his father or Ms. Ross. He said his father never hit him so he would never hit Khalaiya. DC Kempster questioned Mr. McLaughlin as to whether there was any reason to believe the doctors would conclude that someone intentionally hurt Khalaiya, dropped her, hit her; that she would have bruises and broken bones. Mr. McLaughlin denied this.
[30] In fact, Mr. McLaughlin told DC Kempster that the EMS personnel, the family, and the doctors praised him for saving Khalaiya’s life. He pointed to his efforts at mouth-to-mouth resuscitation, clearing her mouth and splashing water on her face in support of this praise.
[31] DC Kempster arrested Mr. McLaughlin at about 5:45 a.m. on January 5th after he had spoken to Ms. Ross and had watched a selfie video Ms. Ross had taken of her and the baby earlier on January 4th; and after he learned from the doctors that Khalaiya sustained a head injury involving a subdural hemorrhage in her brain, a brain injury, bilateral clavicle fractures, extensive bruising on her body and a retinal hemorrhage.
SHANIA ROSS’S EVIDENCE
[32] Ms. Ross indicated that on January 4th she was making plans to go out with Mr. McLaughlin that night for her birthday. A Lyft receipt shows that she left 2 Mascot at 3:37 p.m. on route to her mother’s and arrived at her mother’s home at 4:10 p.m.
[33] Ms. Ross was asked about Khalaiya’s health on January 4th. Ms. Ross’s evidence was that before she left, Khalaiya was a bit fussy because she had a cold. Ms. Ross had put Khalaiya to sleep and she was sleeping when she left. She indicated that the only injury the baby had was a scratch on her face caused by a bracelet her mother gave her. Ms. Ross mentioned she had a little red mark on her forehead she assumed might have been caused a week earlier by being struck by a toy. Other than that Khalaiya had no other injuries when Ms. Ross left the apartment.
[34] Ms. Ross testified that Mr. McLaughlin’s account of Khalaiya being burnt by a hair dryer is false because she does not use a hair dryer on a baby’s head because it is too hot. Ms. Ross said Khalaiya had spit up some vomit for a couple of days before January 4th but that did not concern her because she was catching a cold. But she had no medical conditions.
[35] Ms. Ross testified that she told the police that Mr. McLaughlin was a great help to her in caring for the children; and that he treated them like he was the biological father. She told the police he loved and was protective of Khalaiya. He would take the children to school. Ms. Ross said no one physically disciplined the children.
[36] Ms. Ross testified she received a call from Mr. McLaughlin. He told her Khalaiya was being rushed to the NYGH. She described his state of mind on the call to be panicky and confused. He gave Ms. Ross an account of Khalaiya being on the couch, about him getting a diaper and turning around and seeing her appearing to be fainting and about to fall off the couch.
[37] Mr. McLaughlin told Ms. Ross that Khalaiya almost fell but he caught her so she did not fall. Mr. McLaughlin said he rushed to catch Khalaiya and put her on the futon on the floor. Ms. Ross testified that Mr. McLaughlin insisted Khalaiya did not hit her head. He said she still looked like she was fainting so he gave her a bottle of water and she choked. So Mr. McLaughlin put his fingers into her mouth to remove what might be there.
[38] Ms. Ross repeated that Mr. McLaughlin kept stressing that he did not know what happened to Khalaiya. She testified Mr. McLaughlin did not mention dropping her, hitting her or shaking Khalaiya. But she did say she felt like Mr. McLaughlin was not telling her everything.
[39] Ms. Ross arrived at the NYGH and was then transported in the ambulance with Khalaiya to the HSC. She was told Khalaiya required brain surgery.
[40] Looking back at the time before Ms. Ross left the apartment to take the other children to her mother’s, as noted earlier, Ms. Ross took a 35-second selfie video depicting her holding Khalaiya upright on her lap. She estimated that the video was taken at about 1:00 p.m. to 1:30 p.m. on January 4th. In the video, Ms. Ross asks Khalaiya to give a “high five” and then asks her to kiss her. Khalaiya is seen doing what her mother asks. Khalaiya appears comfortable, not in pain, and not crying or acting fussy.
[41] Regarding Mr. McLaughlin’s father, Ms. Ross indicated his relationship with the children was “neutral.” He would sometimes babysit or cook meals.
[42] Khalaiya was hospitalized at the HSC and then Holland-Bloorview Kid’s Rehabilitation Centre for a total of one year. Ms. Ross testified that at present Khalaiya has limited mobility. She drags her right foot and has no use of her right arm, and no mobility in that arm. She can speak but cannot see beyond four feet. Ms. Ross testified that behaviourally Khalaiya becomes aggressive and angry and does not understand how to manage those emotions.
EVIDENCE OF MEDICAL WITNESSES
Overview
[43] The Crown called as expert witnesses five medical specialists: a pediatric radiologist, a pediatric neuroradiologist, a pediatrician in child maltreatment, a pediatric ophthalmologist, and a pediatric neurosurgeon. Each was a staff physician with the HSC.
[44] Khalaiya suffered a subdural hematoma in her brain, a brain injury, bilateral clavicle fractures, retinal hematomas, compression fractures in her thoracic and lumbar spine, and ligamentous damage to her cervical spine. The doctors in the various specializations at the HSC collaborate as a team to bring information to collectively contribute to the care of children.
[45] The general medical opinion based on the perspectives of the various medical specialties was that Khalaiya’s condition was the result of significant, non-accidental force to her body, resulting in injuries not explained by medical conditions.
Dr. Andria Doria
[46] Dr. Doria was qualified at this trial as an expert in pediatric radiology and prepared a report dated January 18, 2019. She explained that she is a radiologist qualified to read skeletal surveys not the neural or internal conditions of the patient. She diagnosed compression fractures of the thoracic spine at T-8, T-12 and possibly T-10 and of the lumbar spine at L-1 evidenced by shortened misshaped vertebrae; bilateral displaced clavicle (collar bone) fractures; and a suspicion of a small callous formation on the sixth left rib which suggests there was a hidden fracture that had been sustained two to six weeks before the January 18, 2019 radiological assessment. She explained that none of the injuries were naturally occurring conditions.
[47] Dr. Doria explained that the bilateral clavicle fractures would be caused by trauma directly to the chest, by something falling on the patient, or by a patient being forced into something. The doctor described this injury as having a high probability of being non-accidental.
[48] Regarding spinal compression fractures, Dr. Doria opined that they do not have the same high probability of being non-accidental since certain bone conditions like osteoporosis can lead to compression fractures in the spine. She was not aware of the patient’s clinical history in that regard.
[49] On the suspected fractured rib, Dr. Doria stated that this is not a naturally occurring condition. The suspected rib fracture appeared in only one image on the January 18th skeletal survey, not those taken on January 5th at the HSC.
Dr. Manohar Shroff
[50] Dr. Shroff was qualified at this trial as an expert in pediatric neuroradiology. His specialty is to interpret neurological imaging such as CT scans and MRIs looking at the bones of the spine, the brain, and the surrounding coverings of the brain for abnormalities in those areas. Dr. Shroff was given a brief clinical history of the patient, her date of birth, and that she had surgery for a subdural brain hematoma and trauma to rule out a cervical spine injury.
[51] Dr. Shroff testified about the images of the CT scan performed at the NYGH. There are two Figures in evidence. Figure A shows a collection of blood over the surface of the brain between the brain and the skull indicative of a subdural hematoma or hemorrhage to the left side of the brain. Dr. Shroff also found cerebral edema or water in the left side of the brain which he indicated shows changes in the underlying brain which may be due to ischemia meaning reduced blood flow to the brain.
[52] Figure B shows a shift in the midline in the front of the brain which indicates significant pressure and swelling on the brain from the subdural hemorrhage. The CT scan images also show a thinner subdural hemorrhage on the right side of the brain. No fractures of the skull were seen.
[53] The CT scan images taken after surgery on January 5th show a portion of the skull bone was removed to decompress the brain and to remove part of the hematoma to allow the brain to expand to relieve the pressure. An assessment of the left cerebral hemisphere of the brain shows extensive damage. The deep grey matter is damaged, and the cerebellum, a critical portion of the nervous function, is damaged.
[54] The MRI images also show severe damage to brain tissue which over time can result in loss of volume in brain tissue and scarring in the brain. The post-operative MRIs show subdural hemorrhage on the right and that the left side subdural hemorrhage had been removed. These images also show damage to the critical neurological functions of the cerebellum which leads to poor medical outcomes.
[55] Dr. Shroff also spoke of the ligamentous injury to the cervical spine between the first and second cervical vertebrae. The image shows a contusion and ligamentous injury. He opined that this type of injury occurs with an abnormal flexion/extension of the head in a very severe manner damaging and contusing the soft tissues. This type of injury is unusual because the ligament is strong and fibrous.
[56] Regarding the fractures in the T-8 and T-12 thoracic spine and the L-1 lumbar spine, the images show a loss of height in the three vertebrae which is indicative of a compression fracture. There is a subdural hemorrhage shown at the sites of the compression which suggests severe trauma to the head and spine.
[57] Dr. Shroff opined that the injuries shown on the CT-Scan and MRI images are not naturally occurring conditions. They indicate blunt force trauma. He went on to say that when all three conditions are present, the subdural hemorrhage with edema, the compression fractures, and the cervical ligamentous injury, there is concern about a non-accidental incident as the cause of the injuries.
[58] Dr Shroff opined that the three types of injuries would be inconsistent with a fall from a futon that is three inches from the floor. A fall from a greater height would be required.
Dr. Sarah Schwartz
[59] Dr. Schwartz was qualified at this trial as an expert in child maltreatment specifically in child maltreatment pediatrics, the assessment and interpretation of suspected injuries in children and infants. The doctor is a staff physician at the HSC and a pediatrician with the Suspected Child Abuse and Neglect (“SCAN”) program, a large multidisciplinary program involving various providers performing different roles.
[60] Dr. Schwartz became involved in Khalaiya’s case when a call came into SCAN from the Pediatric Intensive Care Unit at the HSC. She learned that Khalaiya had sustained a subdural hemorrhage and was on life support. Her role was to perform a direct clinical assessment of Khalaiya involving a physical examination. She reviewed medical records other physicians prepared during the acute phase as well as historical medical records. The information the doctor had from the police through Ms. Ross was that she had been a healthy child.
[61] Dr. Schwartz reviewed the initial CT Scan, the laboratory blood tests, and the clinical picture of the child in arriving at her opinion. In addition to the subdural brain hemorrhage, retinal hemorrhage, and fractures of the clavicles and spine, the doctor observed extensive bruising on various parts of the child’s body on her left collar bone, buttocks, and mid-back. The tests revealed no medical conditions such as a bleeding disorder that could explain the hemorrhages in the brain, spine, and retinas or the extensive bruising. No bone condition like osteoporosis could explain the clavicle and spine fractures.
[62] Ms. Ross provided some information to explain a small bruise on her back. She related that Khalaiya is a child who often falls from a standing position onto her buttocks which could account for the bruising on her buttocks. The mother also spoke of seeing Khalaiya crying in her crib and finding a small red mark on her forehead and of an incident two weeks previously and finding she hit her head on the crib near her left eye. Ms. Ross explained the bruise on her back as being caused by Khalaiya squeezing out of her high chair causing the seat to rub against her back.
[63] The doctor believed that the information from Ms. Ross could not explain the totality of the injuries.
[64] Dr. Schwartz explained “trauma” as external forces of two types applied to the child which results in injury. Blunt force trauma refers to something hitting the head or the head hitting something. The other type of trauma is inertial force caused by acceleration/deceleration or the head moving quickly back and forth with significant force. This type of injury would not be caused by simply rocking a baby.
[65] The doctor concluded that with the absence of medical explanations for the findings, the subdural hemorrhages were possibly the result of either blunt or inertia force trauma or a combination of the two. The total medical picture reveals that the child’s injuries were the result of non-accidental trauma from inflicted injuries - involving impact to the child’s body, her head, eyes, cervical, thoracic, and lumbar spine, collar bones, and buttocks.
[66] Dr. Schwartz stated that the retinal hemorrhaging was not caused by external trauma to the eyes but rather occurred in the context of the brain hemorrhage and, like the brain hemorrhage, was caused by either blunt or inertial force trauma or both. She could not speak to the timing of the retinal hemorrhage.
[67] The symptoms of the head injuries would vary depending on the severity of the impact. Dr. Schwartz testified that in this case, it would be expected that symptoms would emerge at the time of the incident and be ongoing. The symptoms would be significant and noticeable – vomiting, difficulty breathing, seizures, unconsciousness, becoming limp, and irritability, symptoms that could lead to death. Dr. Schwartz stated that there would be a brief period of perceived normalcy with ongoing symptoms that would worsen.
[68] The doctor spoke to the timing of the injuries. She took into account that Khalaiya was well hours before the injury incident, in good spirits, “high-fiving”, which suggests she did not have a brain injury and subdural hemorrhage at that time. She estimated that the injury occurred at the time or a short period before she was found to have obvious symptoms. The fact that the EMS personnel found her unconscious and given the rapidity of her need for treatment means it would be expected that she sustained those injuries shortly before she presented with the acute symptoms.
[69] Dr. Schwartz opined that a fall from a three-inch thick futon or even a fall from standing and hitting the head would not result in the severe injuries sustained by Khalaiya.
[70] The cervical ligamentous injury could result from neck trauma - direct impact to the neck, inertial force, or axial force. The latter involves the transmission of force through the spine by force being applied to the top of the head and pushing downwards. Dr. Schwartz indicated it was not possible to determine which type of force was inflicted. There would be no obvious symptoms in a small child. This type of injury could only be detected through imaging.
[71] According to Dr. Schwartz, the subdural hemorrhage in the spine could be the result of the blood from the brain hemorrhage tracking from the head into the spine; or from direct impact such as hyper-extension or forceful bending forward and backward or a blow to the neck.
[72] Concerning the fractures, since there were no medical conditions that explained them, the doctor’s opinion was they were caused by externally inflicted trauma.
[73] Like Dr. Shroff, Dr. Schwartz explained that with spinal compression fractures, the force caused the vertebrae to be flattened which was evident from the imaging. Again, she indicated that this type of injury can be caused by hyperflexion, hyperextension, or axial loading. There is no swelling or bruising so there would be no visible symptoms.
[74] The bilateral clavicle fractures could be caused by direct impact to the clavicle, indirect impact to the shoulders, or forceful manipulation of the arms. In terms of the timing of the injury, it is expected that signs of healing would appear at the latest ten days after the injury. There was no sign on the x-rays of healing of the clavicles. Again, it was the doctor’s opinion that a fall from a three-inch futon would not result in both clavicles being fractured.
[75] As for the extensive bruising, Dr. Schwartz stated that since there was no underlying bleeding disorder, the cause would be a traumatic injury and this conclusion was drawn from the nature of the bruises and where they were located. The shoulders and buttocks bruises were of most concern. The doctor took into account that a mobile child could have accidental bruising but concluded that the incidents described by Ms. Ross do not account for the extent of the bruising.
[76] Dr. Schwartz opined that if a fall from a three-inch thick futon did not cause the injuries, they could have been caused by an earlier event. She did not define timing in terms of what she meant by an earlier event.
Dr. Kamiar Mireskandari
[77] Dr. Mireskandari was qualified at this trial as a pediatric ophthalmologist. He also works with the SCAN program. He explained that retinal hemorrhages are often associated with brain hemorrhages. He received information about Khalaiya from the SCAN team about the bleeding in the brain.
[78] Dr. Mireskandari found multiple hemorrhages in various parts of the eye. There were splits in the retinal layers, a condition called retinoschisis, where there is bleeding between the layers. Dr. Mireskandari testified that the layers of the retina were pulled apart by force. There was also seepage of blood into the gelatinous aspect of the eye which is indicative of a vitreous hemorrhage.
[79] The doctor explained that these hemorrhages were not naturally occurring conditions. They can be caused by rare blood diseases which were not found in Khalaiya’s clinical records. He also explained that there are genetic conditions that could cause retinoschisis. The doctor concluded that those injuries in a 13-month-old child, with no medical explanation for the condition, were caused by significant force specifically by acceleration/deceleration impact which caused shearing forces between the retinal layers.
[80] Dr. Mireskandari explained the kind of force it would take to cause the eye injuries. He posed that to cause this type of hemorrhage would take a car travelling at a high velocity rolling over causing extreme acceleration/deceleration inside an occupant’s body.
[81] The doctor testified that this type of injury can be sustained by a small child by the acceleration/deceleration impact of being vigorously shaken causing the head to go back and forth due to the child’s poor control over their neck. Dr. Mireskandari’s opinion was this type of injury would not result from a child falling even from a six-inch thick futon because such a fall is one event that would not cause the repeated rotational acceleration/deceleration force required to cause hemorrhaging.
Dr. Abhaya Kulkarni
[82] Dr. Kulkarni was qualified at this trial as a pediatric neurosurgeon. He was advised that he was required urgently to perform surgery on a comatose child.
[83] The doctor reviewed the scans from the NYGH in preparation for the surgery. He observed a subdural hematoma and ischemia, meaning a lack of oxygen, on the scans of the left hemisphere of the brain. There was also swelling in the left hemisphere and a midline shift, as discussed by Dr. Shroff. He found her eyes were minimally reactive to light shone in her eyes which he stated was indicative of a significant brain injury.
[84] Dr. Kulkarni noted reasonable movement on the left side of her body, but very little on the right side which he concluded revealed an injury to the left side of her brain. The doctor’s opinion was that the child would have died without the surgery.
[85] To relieve the significant pressure building up on the brain, Dr. Kulkarni indicated it was necessary to remove a large plate of bone from the skull which allowed the blood to be removed. He stated that he saw no evidence of a skull fracture. The blood was fresh with a clotted consistency indicating a recent injury as opposed to blood sitting in a subdural space for some time.
[86] Dr. Kulkarni indicated that he could not be precise as to the recency of the injury. But he estimated that it would have certainly occurred within days before the surgery. He opined that the brain injury was consistent almost exclusively with traumatic injury. The doctor concluded it would be difficult to imagine a period of being asymptomatic following the type of injury sustained by Khalaiya. He indicated that after such an injury he would expect some degree of coma, some level of complete unresponsiveness, and at a minimum, drowsiness with a depressed level of consciousness.
[87] Dr. Kulkarni stated that he would expect the symptoms would be fairly obvious instantly and have immediate onset after the trauma. He opined that he did not expect that a child would sustain such an injury from falling from a three or six-inch high futon because the injury would require greater force than a fall from less than a foot.
[88] Post-operative observations of Khalaiya revealed good movement on her left side and extreme weakness and stillness on his right side.
THE LAW ON REASONABLE DOUBT
[89] This is a case where the accused’s evidence, as advanced by the Crown through the two police statements, conflicts with the evidence of the Crown. The Supreme Court of Canada offers guidance to triers of fact through the well-known principles in R. v. W.(D.):
- 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, based on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[R. v. W.(D.) (1991) , 63 C.C.C. (3d) 397 (S.C.C.)]
[90] It is an error when dealing with conflict between the parties’ evidence to prefer one version of events over the other. To prefer one testimony over another has the effect of reversing the onus onto the accused: [R. v. Morin, [1988] 2 SCR 345, at para. 42].
[91] Where credibility is the central issue, the trial judge must direct their attention to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to their guilt: [R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para. 23].
ANALYSIS
[92] What the court is faced with is a child of tender age whose tiny defenceless body was brutally assaulted to within an inch of its life. Of that, there is no doubt. From the time Khalaiya was in the care of the EMS personnel until her surgery at the HSC, she clung precariously to life. Thankfully, she survived the blows. She survived the surgery and a year’s hospitalization. She survived but to a life marked by substantial physical and cognitive disability.
[93] The question before the court is whether Mr. McLaughlin is the perpetrator. In my estimation the facts point to Mr. McLaughlin. The court heard about the different modes of force capable of causing such injuries. What we do not know is exactly how Mr. McLaughlin employed the force. But that precise knowledge is not needed to decide his guilt.
[94] I arrive at my determination for the reasons that follow:
[95] Dr. Doria, the pediatric radiologist, concluded the bilateral clavicle fractures, not having a medical cause, would be the result of trauma directly to the chest like something falling on the patient or the patient being forced into something. The injuries had a high probability of being non-accidental. The compression fractures, if they did not have a medical cause, were likely non-accidental.
[96] Dr Shroff, the pediatric neuroradiologist, opined on the spinal bones, the brain, and the surrounding coverings of the brain. He concluded that blunt force trauma caused the subdural hemorrhage and extensive damage to the left cerebral hemisphere of the brain and the nervous function of the brain. He opined that the ligamentous injury to the neck was the result of severe abnormal flexion/extension of the head resulting in bruising to the area. Regarding the spinal compression fractures and bilateral clavicle fractures, Dr. Shroff found, were caused by severe trauma. His view was that none of the injuries were caused by naturally occurring phenomena.
[97] Dr. Schwartz, the specialist in child maltreatment, concluded the total medical picture of the child’s injuries indicated non-accidental trauma. With the absence of medical explanations for the findings, she concluded the child’s injuries were the result of non-accidental trauma from inflicted injuries - trauma involving impacts to the child’s body, and head affecting the brain and eyes, and cervical, thoracic and lumbar spine, collar bones and buttocks.
[98] Dr. Schwartz stated that the injury could have been caused by an earlier event. She did not specify what “earlier” meant. This could mean that earlier refers to any time, hours, or days, earlier than 7:05 p.m. on January 4th. On the question of whether there would be a period without symptoms after the injury event, Dr. Schwartz opined that the fact that the EMS personnel found her unconscious, and with the speed of her need for treatment, it would be expected that the injuries were sustained a short time before she presented with the acute symptoms.
[99] Dr. Mireskandari, the ophthalmologist, found multiple hemorrhages in various parts of the eye and that there were splits in the retinal layers. He concluded that this type of injury in a 13-month-old child, with no medical or genetic explanation for the condition, was caused by significant force specifically by acceleration/deceleration impact which caused shearing forces between the retinal layers.
[100] Dr. Kulkarni, the neurosurgeon, observed a subdural hematoma and ischemia meaning a lack of oxygen on the scans of the left hemisphere of the brain. He noted movement on the left side of her body but very little on the right side. This, he concluded, revealed an injury to the left side of her brain. The doctor’s opinion was that the child would have died without the surgery. Dr. Kulkarni opined that the brain injury was consistent almost exclusively with traumatic injury.
[101] Dr. Kulkarni estimated that the injury event would have occurred within days of January 4th. On the question whether there would be a period of asymptomatic presentation he said that would be hard to imagine following the type of injuries. What would be expected is a degree of coma, complete unresponsiveness, or, at a minimum, drowsiness with a depressed level of consciousness.
[102] Without hesitation, I accept the opinions of the five medical specialists called by the Crown. Their opinions totally eclipse the account Mr. McLaughlin attempted to urge on the police. Mr. McLaughlin’s evidence simply does not align with the extensive medical findings. The doctors’ conclusions were consistent with one another. There were no opposing opinions. Collectively their conclusions paint a grim picture of severe trauma. The doctors were uniformly of the firm opinion that a fall from a futon three to six inches from the floor could not have caused the extensive injuries to Khalaiya.
[103] No one piece of evidence persuaded me to my determination. Apart from relying on the medical opinions, my disbelief of Mr. McLaughlin’s account is drawn from other areas of the evidence. In saying I do not accept Mr. McLaughlin’s evidence I am mindful of the R. v. W.(D.) instruction that even if I disbelieve Mr. McLaughlin I must ask myself whether on the totality of the evidence, there is still evidence that raises a reasonable doubt of his guilt. My answer to that question is a sound negative.
[104] There is a further area where Mr. McLaughlin’s evidence is externally inconsistent with other evidence. I found credible Ms. Ross’s evidence about her communications with Mr. McLaughlin minutes after the alleged fall when Mr. McLaughlin spoke to her from outside 2 Mascot Place while he was waiting for the EMS to arrive. Her evidence contradicted what Mr. McLaughlin told the police. She testified that when Ms. Ross asked what happened to Khalaiya, he acted confused and said he did not know what happened. He told her several times that Khalaiya did not hit her head. Ms. Ross said she suspected Mr. McLaughlin was not telling her everything.
[105] There were also internal inconsistencies in Mr. McLaughlin’s account of what happened. There were times when he would say the child fell from the couch in the living room as distinct from the futon on the floor. He mentioned a fall from the couch to DC Gordon and Ms. Ross. He did not say this to DC Kempster. Overall he most often said the fall was from the futon.
[106] Mr. McLaughlin also mentioned to DC Kempster that there was a speaker in the living room near the couch that she might have hit her head on. But neither did he mention the speaker to DC Gordon whom he spoke to before DC Kempster.
[107] Then there is the question of Mr. McLaughlin’s opportunity to commit the offence. He no doubt had the opportunity. Ms. Ross left the apartment at 3:37 p.m. on January 4th, leaving Khalaiya in his sole care. Ms. Ross’s evidence is that she put Khalaiya to sleep before she left the apartment. There is no evidence she returned to the apartment. About three hours later, according to Mr. McLaughlin’s account, he retrieved Khalaiya from her bed in the bedroom and placed her on the futon in the living room.
[108] As for an opportunity for others to have committed the crime, Mr. McLaughlin’s father and Ms. Ross were also present in the apartment for periods of time.
[109] There is no evidence of the father entering the picture until just minutes before he and Mr. McLaughlin left the apartment with Khalaiya when he asked his father for help getting Khalaiya to the hospital. Ms. Ross was present at the apartment before and after she took the 1:00 p.m. selfie video of herself and Khalaiya, where the child appeared quite active and alert until she left about two hours later at 3:37 p.m.
[110] Although defence counsel raised questions along the lines of pointing to others who were present in the apartment, he indicated the defence was not accusing the father or Ms. Ross of committing the crime.
[111] In any event, the defence did not bring an alternate suspect application seeking admissibility of that type of defence. Moreover, this type of evidence can only be raised where there is sufficient evidence to connect a third party to the offence. This will turn on the question of whether the evidence has a sufficient degree of relevancy and probative value. The alternative suspect must have a sufficient provable connection to the offence that cannot simply be based on speculation: [R v Grandinetti, 2005 SCC 5, [2005] 1 SCR 27, at para. 61]. No defence may be left with a judge or jury to consider unless it has an “air or reality” to it: [R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.); and R. v. Fontaine (2004), 2004 SCC 27, 183 C.C.C. (3d) 1 (S.C.C.)].
[112] Nevertheless, there is an absence of a sufficient evidentiary nexus to link the father to the crime. Proximity to an offence alone is not proof of involvement. An insufficient evidentiary foundation is also true for Ms. Ross. I found her evidence credible that the baby was well when she put her to sleep before she left the apartment sometime after she took the selfie video. Ms. Ross did not return to the 2 Mascot apartment before she left her mother’s home and went to the NYGH.
[113] There is therefore no evidence from which it might be reasonably inferred that someone other than Mr. McLaughlin committed the crime.
[114] Other considerations arise from the medical evidence.
[115] Khalaiya appeared active, alert, and healthy in the selfie video at 1:00 p.m. on January 4th. The question was raised with the medical witnesses as to whether, with the significant trauma inflicted on the child, she could have had a period of asymptomatic presentation at 1:00 p.m. after an injury event that might have occurred earlier.
[116] The neurosurgeon, Dr. Kulkarni, opined that there would not be a period of asymptomatic presentation because of the severity of the injury. He would expect a degree of coma, a level of complete unresponsiveness, at a minimum, drowsiness, with a depressed level of consciousness.
[117] Dr. Schwartz, the child maltreatment specialist, was of the view that the fact that the EMS personnel found her unconscious and in urgent need of immediate treatment means it would be expected that Khalaiya sustained the injuries a short period before she presented with the acute symptoms. She explained that the symptoms would be significant and noticeable such as vomiting, difficulty breathing, seizures, unconsciousness, becoming limp, irritable, symptoms that could lead to death. There would be a brief period of perceived normalcy with ongoing symptoms that would worsen.
[118] Another question that arises concerning the medical evidence is about the recency of the injuries. The doctors were asked if they could offer a date or time they thought the injuries could have been sustained. Dr. Kulkarni indicated that he could not offer a precise date but estimated that it would have occurred certainly within days. I assume he meant within days of January 4th.
[119] Dr. Schwartz was asked whether Khalaiya’s symptoms of being non-responsive, choking, and having difficulty breathing could be symptoms indicative of an event that occurred before Mr. McLaughlin’s involvement with the child. The doctor responded that the general description of how Khalaiya appeared could represent symptoms of an earlier event.
[120] Understandably, the doctors’ opinions pose possibilities for the timing of the injury event from a medical perspective which I do not question for the reason that an assessment of medical possibility involves different considerations from an assessment of possibility in a legal context.
[121] Courts must view the evidence within the strictures of the law and the rules of evidence. “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”... “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”: [R. v. Villaroman 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 37 and 38].
[122] So courts must be cautious not to wander into the realm of speculative thinking when assessing whether inferences consistent or inconsistent with guilt exist in the evidence. The court must ensure that a plausible theory is based on logic and experience applied to the evidence or absence of evidence before the court.
[123] The evidence I accept is that Khalaiya was well and active at the time of the selfie at 1:00 p.m. and when Ms. Ross put her to sleep at 3:37 p.m. before she left the apartment. Significantly, there is an absence of any evidence, any intervening facts like the involvement of other persons with Khalaiya or the occurrence of an event between 3:37 p.m. and the time Mr. McLaughlin found Khalaiya in extremis at 7:05 p.m. This evidentiary gap in time cannot be filled with speculative imaginings. There is nothing beyond mere speculation that points to an earlier injury event.
[124] The only reasonable conclusion that can be drawn is that Khalaiya’s injuries did not occur at any time other than a short time before she presented with the acute symptoms while she was in the care of Mr. McLaughlin.
[125] Mr. McLaughlin posited other causes for Khalaiya’s injuries whereby he attempted to deflect blame and distract from the evidence that the head injury was caused by traumatic impact to Khalaiya’s head while in his care.
[126] Based on Mr. McLaughlin’s erroneous belief that the doctors diagnosed a blood clot in Khalaiya’s brain, he suggested that she might have inherited her biological father’s sickle cell anemia and its associated blood clot condition.
[127] Mr. McLaughlin told DC Kempster he regarded the blood clot as presenting, “a whole different ball game now”...“but the same ball game with baby girl.” I find this can be reasonably interpreted to suggest a cause for the injury different from Khalaiya hitting her head, that being the blood clot condition from her biological father. DC Kempster then asked Mr. McLaughlin what he thought the cause of the injuries was. Mr. McLaughlin responded, “I would have said 50/50”, which, given the context of that comment, I find reasonably meant 50/50 between the blood clot and hitting her head on the floor as the causes for her injuries. There is no reference to sickle cell anemia in the medical evidence before the court.
[128] Further, Ms. Ross indicated that aside from the occasional cold and constipation Khalaiya had no medical conditions. As well, the doctors found no relevant medical concerns in her record. Ms. Ross suggested as explanations for Khalaiya’s injuries, the red marks on her face caused by a toy in her crib and by her hitting her face on the crib. She contradicted Mr. McLaughlin’s reference to a blow dryer causing the red marks. She referred to that explanation as false because a hair dryer would not be used on her child’s hair because it would be too hot.
[129] Ms. Ross also suggested the bruises on her buttocks resulted from Khalaiya falling on her buttocks and the bruises on her back caused by her tendency to squeeze out of her high chair. However, as Dr. Schwartz concluded, the incidents described by Ms. Ross do not account for the extent of the trauma Khalaiya sustained.
[130] Mr. McLaughlin attempted to pose yet another cause for Khalaiya’s injuries. He seemed to suggest that during play with the other kids, Khalaiya either caused the injury herself and/or it was caused by the other kids. He explained it this way: “[I]t could be due to uh when kids play with each other you see what I'm trying to say one kid cries and you know what I mean oh, you hit me, no she didn't hit you because I looked on the thing you see what I'm trying to say”... “And what you did is you hurt yourself and put it on somebody else”. Again, from Dr. Schwartz’s evidence, it is clear that child’s play could not exact the tremendous impact inflicted on Khalaiya’s body.
[131] I must also say it is not insignificant that the symptoms Mr. McLaughlin described when he picked Khalaiya up from the futon - irritability, limpness, choking, vomiting, unconsciousness, drowsiness, difficulty breathing - are the same symptoms the doctors would expect a child to present with as a result of the infliction of traumatic impact to their head and body, symptoms that would be obvious a short period after the injury event.
CONCLUSION
[132] The only reasonable conclusion available to me on the facts is that it was Mr. McLaughlin who dealt the near-fatal assault on the vulnerable and innocent Khalaiya - merciless blows that brought her to face-to-face with death, surviving, but sadly to a life of enduring disability. The facts reveal the approximate time of the assault. But only Mr. McLaughlin knows how, why, and what he did to Khalaiya. Those questions need not be answered to find guilt. As the evidence demonstrates there is no room inside the circle of blame for anyone but Mr. McLaughlin.
[133] There is another disturbing fact I feel compelled to address. A perverse irony. Mr. McLaughlin attempted to tap into the lofty paragon of humility. He feigned modesty in accepting the EMS’s, the family’s, and the doctors’ praise for saving Khalaiya’s life. Speaking of the EMS paramedic Mr. McLaughlin said:
... he telling me I saved her, I don't feel that way man. My heart is broken. I don't believe it was gonna come back like this man. (chuckle) but maybe downline, I was oh thank you ... like ... like and take ... but it's like they're trying to call me hero but I didn't really save the day, you know, I didn't feel like I really saved the day. You see what I'm trying to say.
[134] Little did his extolers know, Mr. McLaughlin was attempting to revive Khalaiya from his own brutal deeds. Little did they know that behind the endearing references to Khalaiya as his “baby girl” lurked a villain in hero’s clothing. If Mr. McLaughlin is lucky for anything here it is that Khalaiya’s will to live won out or his legal jeopardy would be far greater.
[135] For all the reasons I have cited, I find nothing in the evidence that raises a reasonable doubt about Mr. McLaughlin’s guilt. The Crown has satisfied me beyond a reasonable doubt that it was Mr. McLaughlin who committed the aggravated assault on Khalaiya on January 4, 2019.
VERDICT
[136] I find Nathaniel McLaughlin guilty of one count of aggravated assault on Khalaiya Ross contrary to s. 268 of the Criminal Code.
Allen J.