COURT FILE NO.: CR-23-428
DATE: 2024/11/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
L.M. and B.W.
Defendants
Jennifer Swart, for the Crown
Katie Heathcote, for the Defendant L.M.
Sam Puchala, for the Defendant B.W.
HEARD: June 17, 18, 20, October 3, 2024
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
TRANQUILLI j.
Introduction
[1] Two officers from the London Police Service attended at the defendants’ home on the morning of February 21, 2022, to enforce a court order for the return of six-year-old C.M. to the care of her mother. C.M. had been in the care of her father, the defendant L.M., and her father’s common law partner, the defendant B.W., for approximately five months, during a custody dispute with C.M.’s mother.
[2] Police were shocked by the condition in which they found C.M. that morning. She was in her bedroom, on her bed, laying on her stomach with an absorbent pad underneath her. The bottom half of her body was unclothed and exposed. She had obvious burns to her buttocks, low back, and upper thighs. Police understood that she had not been medically assessed and that she sustained the injuries about two days earlier. The child was immediately taken to London Health Sciences Centre by ambulance, where she was admitted for treatment of partial thickness burns. She was assessed by a physician who advised the significant burns appeared to have been caused by a substance like hot water and that the burns were “certainly nonaccidental in origin.” She was discharged approximately three weeks later into her mother’s care.
[3] The defendants L.M. and B.W. are each charged with failing to provide the necessaries of life to six-year-old C.M. in February 2022, thereby endangering her life contrary to s. 215(2)(b) of the Criminal Code. B.W. is further charged with committing an aggravated assault on C.M. in February 2022 contrary to s. 268(2) of the Code.
[4] There is no dispute that C.M. was burned and that the injury occurred while she was in the bathtub of the defendants’ home in February 2022. At issue is how the burns were caused and the defendants’ subsequent management of her condition. The Crown alleges the defendant B.W. used hot water on C.M.’s buttocks in an angry outburst and caused significant burns to C.M.’s behind, low back and upper thighs. The Crown further alleges that the defendants’ failure to provide medical attention for these burns reflected a marked departure from what a reasonable parent or caregiver would have done in the circumstances.
[5] The defendant B.W. submits there is no credible or reliable evidence that proves beyond a reasonable doubt that she intentionally caused an injury to the child. She contends there are other plausible theories and reasonable possibilities to be drawn from the evidence that are inconsistent with guilt. Both defendants deny they failed to provide the necessaries of life. They deny that their efforts at home treatment was a marked departure from what a reasonable parent or caregiver would do in the circumstances or that it was foreseeable that this would endanger C.M. The court should use restraint in reviewing their exercise of judgment in the circumstances at the time. They took steps to manage and monitor her symptoms and would have taken her to hospital that day but for the coincidental involvement of the police.
[6] The court heard evidence from now nine-year-old C.M., C.M.’s mother, and the police officers who attended at the defendants’ home. Jurisdiction and identity were admitted. Photographs of the child’s injuries and the defendants’ home, including the bathtub, were admitted on consent. It was also agreed that the hot water tank, bathtub, and downstairs faucets in the defendants’ home were inspected by a qualified plumber, who advised the hot and cold water were functioning properly and were within normal temperature settings.
[7] Crown witness Dr. David Warren was under summons to testify as to his assessment of C.M.’s injuries; however, he was out of the country at the time of trial. The Crown was unable to obtain reliable information as to the timing of his return, which gave rise to concerns about a pending Jordan date. Ultimately, Dr. Warren’s report and the transcript of his cross-examination at the preliminary hearing held in September 2023, were admitted on consent subject to redactions.
[8] The Crown also filed L.M.’s voluntary police statement on consent. He explained what he knew of how C.M. was burned and the defendants’ management of her injury. Neither defendant otherwise testified at trial, nor were they required to do so. They are each presumed innocent of these charges and are not required to prove a thing.
[9] At the close of the Crown’s case, the defendants applied for a directed verdict of acquittal on the charge of the failure to provide the necessaries of life. That application was dismissed with reasons reported at 2024 ONSC 4549.
Overview of Evidence
[10] I will now briefly review the evidence received at trial before turning to my assessment.
Background
[11] C.M. is the child of C.H. and the defendant L.M. She was born in March 2015 and was about to turn 7 years old at the time of the material events in February 2022.
[12] C.M.’s parents separated in or about December 2020. They initially had an informal agreement to provide for parenting time. In August 2021, C.M.’s mother, C.H. raised concerns about L.M.’s partner, the defendant B.W. and withheld C.M. from parenting time with her father for approximately three weeks. Parenting time resumed in September 2021 after the Children’s Aid Society made inquiries and addressed the concern.
[13] The defendant refused to return C.M. to her mother’s care after the first visit resumed following child protection involvement. L.M. told police that C.H. and her mother had made statements that led him to believe they were seeking to end his involvement in C.M.’s life. For reasons that are not clear and that I need not resolve, C.M. remained in the care of her father and B.W. for the next five months, with little contact with her mother or extended maternal family. L.M. regularly worked outside the house. B.W. cared for the child, including home schooling C.M. during this time.
February 2022 – C.M.’s Testimony
[14] Nine-year-old C.M. testified at trial from the CCTV suite on a promise to tell the truth. The Crown relied on her in court testimony and did not seek to rely on her original police statement as part of her examination in chief.
[15] C.M. remembered that she lived for a while with her father and B.W., who she knew as her stepmother at the time. C.M. recalled that she used to have a problem with holding onto her bowel movements and that she would sometimes have accidents in her underwear. On this occasion, she had a “skid mark” in her underwear. C.M. said that B.W. got really mad about the skid mark. B.W. shouted and said some “mean words”. C.M. could see the anger in B.W.’s eyes. C.M. tried to escape but B.W. made her get into the shower. B.W. took the shower hose into her hands and told C.M. to turn around. B.W. then directed the really hot water at C.M.’s backside and told her to “stay there”. The water was immediately hot from the time B.W. directed it at her backside. C.M. described that it hurt right away and that she cried from the pain.
[16] C.M. admitted that she could reach the faucet in the bathtub but maintained that she did not touch them because she was not allowed. She denied burning herself from playing with the taps or the shower hose. She denied putting her own buttocks under the tap.
[17] C.M. recalled B.W. picking what appeared to be tissue paper pieces away from her buttocks after the shower was over and realizing that that it was pieces of her skin. Her father was not around at the time, and she did not see him until later. She remembered overhearing B.W. tell L.M. not to “freak out” when he checked on her.
[18] She remembered that the defendants were really kind to her afterwards. She could listen to music and play games. She was not very hungry but could eat meals in bed. They kept her in bed and her father gave her a cooling pack shaped like a frog and used cool gel and Tylenol for the pain. She had to stay laying on her front and could not have any clothes or blankets on her bottom because “fuzzies” would get stuck. She was “wobbly” on her feet and fell when she tried to walk. She could not get out of the bed. She demonstrated how she would try to shimmy across the bedroom floor on her stomach. She would throw a stuffed animal at a camera the defendants had installed in her bedroom so that she could get their attention for assistance. They would hold her over the bowl so she could use the toilet. She did not like to sleep because it hurt more. They did not take her to see a physician. She remembered that after the ambulance arrived, her father told her she was going to the hospital.
Mother’s Testimony
[19] C.H. testified that she obtained an urgent court order for C.M.’s return to her care on or about February 15, 2022. She was unsuccessful in securing L.M.’s cooperation and eventually went to the defendants’ home on the evening of February 20, 2022, around 8:30 pm to get her daughter. No one answered the door in response to her knocks and she could see the lights turn out. She called police for assistance to enforce the order. An officer arranged to meet her next morning to review the court order and take steps from there.
Police Testimony
[20] Police Constables Morrow and Mailloux attended at the defendants’ home on the morning of February 21, 2022, for the purpose of removing C.M. from the home and returning her to her mother’s care in accordance with the court order. The defendants asked the officers to speak with them in the basement of their townhouse. The defendants raised concerns about C.H.’s parenting capacity. Police called the Children’s Aid Society and confirmed the child could be placed in her mother’s care.
[21] Officer Morrow testified that he was not initially suspicious to be met with the defendants’ resistance to C.M.’s removal from their home. Their reactions seemed to be a normal response in the context of his experience with difficult calls of this nature. The defendants’ dog was barking on the main floor of the house and their request to go to the basement also made sense. In contrast, Officer Mailloux testified he found the defendants’ request to go to the basement to be a little odd and that the defendants seemed intent on changing the subject from the officers’ goal of enforcing the court order.
[22] In any event, Officer Morrow testified he became suspicious after the initial half-hour of the officers’ attendance in the home. At that point, the defendant B.W. made an utterance that C.M. had burned herself and should go to the hospital instead of going to her mother’s house. L.M. stated that C.M. was bed ridden. Without the officers asking, B.W. also offered a reason why they had not taken the child to the hospital earlier. She had no response to the officer’s question as to why C.M. had to go to the hospital now when the injury was between two and three days old. Officer Mailloux similarly questioned why the defendants had not previously mentioned the burn and why they had not sought medical attention earlier.
[23] The officers went to C.M.’s bedroom to check her welfare. Their observations led them to immediately call for an ambulance. They found her on her bed, unclothed from the waist down, laying on an absorbent pad. Officer Morrow described her injuries as significant burn marks on her buttocks down to the tops of her inner thighs. In his words, the burns were the “worst I have ever seen”. Although he did not notice or recall that the absorbent pad was soiled at the time, he was concerned to learn she was toileting on the absorbent pad, which gave him a concern about infection. Officer Mailloux recalled that the absorbent pad was full of urine, although he did not document this in his duty book. He described that the child was crying, which the officer interpreted to be a sign of distress and pain. She was unable to walk or move from the bed and had to be carried to the stretcher.
[24] Officer Morrow was suspicious about the circumstances of the child’s injury, both because of way in which it was disclosed by the defendants to the officers and because of the location of the burns. That the burns were isolated only to the child’s buttock area made no sense to him.
Medical Opinion
[25] Dr. Warren was qualified at the preliminary hearing as an expert in pediatric medicine, with a special expertise in emergency medicine and child maltreatment. On consent, his opinion was received on that basis at trial. Dr. Warren assessed C.M. on February 21, 2022 upon her presentation at hospital. The child was unwilling to divulge details around the circumstances of her burn at that time. Her burns were localized to the central lower back, bilateral buttocks, and upper thighs. It was very difficult to date a burn, but its appearance indicated it occurred several days previous and that it was caused by a hot fluid, likely water. The absence of burns on her hands and feet indicated that she did not climb into a hot tub. If she had sat on her own in a hot water tub there would also have been sparing of the mid buttocks. As well, one would expect the child would try and climb out of significantly hot water and would also have burns on their hands and feet. He concluded that a hot fluid was either poured on the area or that she was held, and her buttocks were placed in hot water. In any event, he found “These burns certainly represent a nonaccidental injury.”
[26] Dr. Warren explained that a typical scald burn from fluid such as hot water usually includes the person’s torso or extremities from pulling something down on to themselves. It was extremely difficult to envision an area where a person could injure themselves on this area of their buttocks. In Dr. Warren’s view, the burn was “externally created”, meaning that another person was involved in creating the burns. While nothing was impossible in medicine, Dr. Warren could not envision the possibility that a six-year-old could cause the localized injury to herself with the shower wand spraying water at maximum heat without also involving her upper torso or back. He would also expect to see other splash marks on the body. If she had been sitting on the edge of the tub, he would expect to see burns on her torso and thighs, not only her buttocks. He thought it implausible that she could balance herself on the edge of the tub, take the wand which is now conducting hot water and apply it to only her buttock area and not be burned elsewhere. He did not believe that it was possible that a six-year-old child would do this to herself or would be able to cause this injury to herself without splash marks or burns to other areas of her body.
[27] Dr. Warren confirmed that the child was given pain medication for his physical examination. Dr. Warren explained that the appearance of eschar or dead skin on the wound surface meant it was not a recent or acute injury. There was a sparing of her perineal area, suggesting that she was likely awake and aware of the circumstances of the burn and had been holding her buttocks together at the time of the injury. Although the wound had fortunately not involved the vulvar area, she required catheterization because urination would feel like pouring acid on a burn. The dead tissue or eschar obscured full assessment of the injury; however, because she reported significant pain in this area, his initial impression was that she had a deep partial thickness burn involving the dermis, being the layer below the epidermis. The risk of infection would be a significant concern because it would be difficult to keep the area of the perineum and buttocks totally clean in its management. Over time, it appeared that fortunately none of the burn progressed to full thickness burns, which would have required more management such as grafting. She had ongoing almost daily examinations during her hospital admission with burn clinic follow-up and therapy.
Father’s Police Statement
[28] The defendant father gave a police statement under caution several days after the incident, on March 1, 2022. Voluntariness of the statement was conceded. L.M. said C.M. had a recent history of hurting herself, such as picking at her nails and that she had been holding her stools to the point of having accidents in her underwear. He believed the bowel accidents were intentional. He suspected her mother encouraged the child to do this when staying with him. He explained that when C.M. soiled herself, the routine was to instruct C.M. remove her soiled clothing in the bathroom, clean herself in the bathtub and then rinse out her own clothing.
[29] L.M. was confused about the precise date but thought the injury occurred about one and ½ to two days between when he first saw his daughter’s injury and the morning that police arrived at his house on February 21, 2022. He had come home from work in the late afternoon. He thought that C.M. was upstairs and just getting into the bathtub. He went out to buy supper. When he returned with the food, B.W. told him that C.M. had been crying when she went to check on her in the bathroom and that the child had been playing with the taps. B.W. did not think it was a bad burn. It just looked a little red with what looked like a little blister or tissue paper on her buttocks. L.M. decided he was not concerned and that C.M. could stay in her room for the night as discipline for playing with the taps against the rules. He did not go in to check on her. Later that night, B.W. was upset and told him that she thought C.M. was burned and that it might be worse than she had thought. L.M. decided they would look at it in the morning. He first saw his daughter’s injury the next morning. He thought it was “kinda bad”. It was “red and bubbly”. He was confused by the injury. The burn looked big and strange, kind of terrible and there were no burns on her feet. He wondered if she had burned her buttocks while sitting in the tub and turning on the tap. That was the only thing he could think of.
[30] Nevertheless, he did not take C.M. for medical assessment and treatment because he thought they would be able to manage it at home. His reasons for this decision were that they did not see any sign of infection, that B.W. was in a nursing program at Fanshawe and had previously worked in a hospital for six years and his online computer research about the injury. Based upon his research, he thought C.M. had a second-degree burn. He understood from his online research that: “…you can kind of deal with at home if it’s not too terrible. And I mean, it was big, but, like, we just put lots of aloe on it and we were hoping for the best.”
[31] L.M. went to a nearby drugstore and bought three bottles of aloe vera. He described managing C.M.’s injury with applying a lot of the aloe gel, using an ice pack, and giving her a cool bath. He gave her Tylenol at the recommended dosage on the bottle. C.M. would cry “here and there” and he would give her Tylenol or put more aloe gel on it to try and help. At first, they tried helping her to walk to the bathroom, but it was hurting her bottom. They instructed her to urinate in a dustpan because they did not have a bed pan. They told her just to have bowel movements in the bed and they would clean her up with wipes.
[32] L.M. noticed that the injury appeared to be worse on the morning that the police arrived at the defendants’ house. She was crying and in pain. He had decided they would go to the hospital that very day after breakfast but was trying to think of how to transport her there other than by ambulance. The police then arrived about the parenting order.
The Law
[33] I will first review the essential elements of the offences of aggravated assault and failure to provide the necessaries of life. I will then provide my findings of fact arising from my assessment of the evidence on each count.
Aggravated Assault
[34] To prove aggravated assault, the Crown must establish beyond a reasonable doubt that B.W. intentionally applied force to C.M. and that this force wounded, maimed, disfigured, or endangered the life of C.M. Counsel did not address consent as an essential element on these facts. This is appropriate, given the circumstances and the child’s age.
[35] While the Crown does not have to prove that B.W. intended to wound C.M., the Crown does have to prove that a reasonable person in the circumstances would realize that the hot water would put C.M. at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that she suffered.
[36] B.W. raised an issue as to whether the resulting burn was a “wound” as required by s. 268(1) of the Code. In R. v. Pummings, 1995 ABCA 129, one issue on appeal was whether the trial judge was correct in finding that a “wound” had to break through all three levels of skin. I do not find that this decision assists the defendant. The court entered an acquittal on other grounds but commented that had they ordered a new trial, the trial judge ought to have considered the extent or spread of the burn injury over the exterior level of the skin in deciding whether the burn was “wound”.
[37] In any event, the Court of Appeal has also recently made it clear that in Ontario, to “wound” within this section of the Code means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch: R. v. Brown, 2021 ONCA 678 at paras. 23-25. In my view, that this resulting burn is a “wound” within the meaning of the Code is available on this evidence. The photographs amply demonstrate that this was not a fleeting or minor “scratch”, but an extensive burn area affecting the skin surfaces on the entirety of the child’s buttocks, and then areas of her low back and upper thighs, with peeling, blistering, swelling and redness. This is also consistent with Dr. Warren’s opinion.
[38] The issue on this count accordingly turns on whether the Crown has proven beyond a reasonable doubt that B.W. intentionally sprayed or applied hot water to C.M.’s body, and if so, if this happened in circumstances where a reasonable person would realize it would put the child at risk of suffering some kind of bodily harm. It therefore comes down to whether the incident in the bathroom took place as alleged by C.M.
Necessaries of Life
[39] There is no dispute that s. 215(1) of the Code puts the defendants under a legal duty to provide the necessaries of life to C.M.: L.M. as the child’s parent and B.W. given the child’s age and her role as the child’s caregiver. On this indictment, the Crown must prove beyond a reasonable doubt that each defendant’s failure to provide C.M. the necessaries of life “endangered” the life of C.M.
[40] The phrase the “necessaries of life” is not defined in the Code. A “necessary” is something which, if not provided by the parent or caregiver, will result in harm to the child’s health or safety: R. v. C.O., 2022 ONCA 103 at para. 49. Medical attention is a necessary of life within the meaning of s. 215(1) of the Code: R. v. S.J., 2015 ONCA 97 at para. 52.
[41] My reasons on the directed verdict application already considered what is required to establish that a defendant’s breach of this duty “endangers” the life of the person to whom the duty is owed. That analysis continues to apply and will not be repeated herein: R. v. L.M., 2024 ONSC 4549. In summary, “endangers” means exposing someone to danger, harm or risk but does not connote actual injury or damage: R. v. R.P., 2004 CanLII 47791 (ON SC) at para 38. This is consistent with the Oxford English Dictionary definition of “endangers”: to put someone or something at risk or in danger.
[42] The Crown must prove beyond a reasonable doubt that the defendants’ failure to get medical treatment for C.M. in the course of one and one-half to two days following the injury was a “marked departure” from what a reasonably prudent parent or caregiver would do in the circumstances: R. v. Alexander, 2011 ONSC 980 at para 60. The section is aimed at establishing a uniform minimum level of care to be provided. It does not purport to prescribe parenting or caregiving techniques but does serve to set the floor for the provision of necessaries. The section punishes a marked departure from the conduct of a reasonably prudent person 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 of the child. The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty: R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 at p 141-142.
Assessment
[43] I will first consider the alleged aggravated assault and then the alleged failure to provide the necessaries of life as it relates to each defendant’s situation.
[44] As with most trials, the court heard evidence from which it is impermissible to make findings. This includes the child’s statements about other disciplinary conduct by one or both defendants which could be construed as bad character and the father’s evidence as to out-of-court statements by the co-accused, B.W. As I will explain, this evidence played a limited role in understanding the child’s narrative and in assessing the father’s response to the child’s injury as he understood it. However, it otherwise plays no role and receives no weight in my analysis.
Count 2 - Aggravated Assault
[45] I accept that C.M.’s evidence establishes that the defendant B.W. intentionally caused her burn injury beyond a reasonable doubt. She did this through the intentional application of hot water to the child’s buttocks as punishment or in anger. In reaching this conclusion, I rely upon the following:
a. C.M. presented as a candid, curious, forthright, and talkative witness. She demonstrated care in her answers to the questions. She would ask for questions to be repeated or explained. She readily corrected earlier answers once she understood a question and would volunteer when she could not remember certain details.
b. The defendants contended that C.M. was not credible or reliable in her testimony about the event and that the evidence demonstrated the mother C.H. had contaminated her testimony out of animus towards the defendants, as exemplified by the child’s use of the term “brainwash” when describing her temporary estrangement from her mother at the time of the incident. I do not agree. The child was entirely factual and spontaneous in her account of the incident, without editorial comment. She allowed that there were good times when she lived with the defendants. She admitted that she talked to her mother about being nervous about testifying in court, but that her mother simply reassured her and told her just to say what had happened. Any “coaching” was limited to walking her through preliminaries such as how to spell her name. C.M. said she knew she was not supposed to discuss her evidence with her mother, and she maintained that she did not. C.H. also denied that she had coached or otherwise manipulated C.M. to give false testimony about the cause of the burn, beyond giving simple reassurance and talking about basics like the spelling of her name. Mother’s explanation regarding the extent of any conversation they have had about this incident was entirely consistent with C.M.’s testimony. I found no reason to doubt the mother’s evidence on this point. Neither witness made an impression of having rehearsed or coordinated their testimony.
c. The defendants submitted that C.M.’s evidence gave rise to additional and significant credibility and reliability concerns. Some of her descriptions about the defendants’ conduct was implausible or exaggerated. For example, she made unexplained references to being restrained on the bed like a starfish, both defendants forcing her into the bathtub, that she had to count to 100 with water spraying on her face, that really cold water or really hot water would be used, or that B.W. wore a bathing suit when spraying her in the bathtub. I do not agree. In my view, it became evident the child was referring to other interactions with one or both defendants arising from her issues with her bowel movements and other behaviours. At one point she was clearly describing the bathing experiences in general and was invited to do so through some of counsel’s questions. Counsel reminded her that she was here to talk about the one time she got hurt when she was in the shower. She then readily noted that this was the time she was burned on the buttocks by the hot shower hose in B.W.’s hands.
d. I would also note that some of her father’s evidence supported what might have otherwise sounded far fetched in the child’s testimony. He confirmed the defendants used a camera to observe her in her bedroom, that they had used gloves to try and manage her nail picking issues and that there had been more than one occasion where she was disciplined for soiling her underwear by being made to take a shower and clean her underwear. Again, I have only referred to this evidence of other conduct as narrative in order to understand the child’s testimony about the charged conduct. It is impermissible to otherwise use this evidence for any moral or propensity reasoning and no allegations of misconduct were otherwise pursued by counsel in this evidence.
e. I also keep in mind that C.M. was six years old, about to turn seven, when these events took place. She was nine years old when she testified. Courts are reminded to take a commonsense approach to assessing the evidence of child witnesses. Part of this commonsense approach is a focus on the child’s credibility regarding their core allegations rather than on peripheral matters. Children often experience the world differently than adults. A child witness may not remember details such as time and place, but that imprecision does not necessarily mean the child misconceived what happened to them and who did it. The presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying: R. v. D.F., 2024 SCC 14, affirming 2023 ONCA 584 at paras. 57 – 66. To that end, while C.M. allowed for correction or question on peripheral issues, she was unshaken and consistent on the core of her allegations: that B.W. was angry with her for the skid mark in her underwear and ordered her into the tub where she sprayed C.M. on her buttocks with very hot water that C.M. felt immediately come out of the hose.
f. C.M.’s evidence is also consistent with Dr. Warren’s theory of the injury. He noted that the child was unwilling to discuss the circumstances of the injury with him at the time. He nevertheless found that this was a non-accidental injury, where he found the only plausible explanation was that another individual would have had to direct the hot water directly at the affected area. Similarly, Officer Morrow held the same concerns that the child’s injury did not make sense.
[46] I have carefully considered the defendant’s contention that it remains possible that there are other reasonable explanations for C.M.’s injury that arise from the circumstantial evidence that are inconsistent with the hot water being intentionally used on the child. The defendant notes that Dr. Warren was not available to testify at trial. While he rejected a few alternative scenarios as being consistent with an injury caused by the child, he allowed that anything was possible and so it follows, in the defendant’s submission, that there are other possible scenarios that remain unaddressed. There is a gap in the evidence from which it would be unreasonable to infer that the only explanation for the injury is an intentional act by B.W. I do not agree. No other plausible theories or reasonable possibilities that are inconsistent with B.W.’s role in applying hot water on the child’s posterior area arise on the whole of this evidence. The child was unshaken in her testimony that the hot water was sprayed on her after the defendant was angry and said loud and really mean words about her soiling her underwear.
[47] Several alternative theories were put to the physician during the preliminary hearing. He noted the absence of burns to the hands and feet, the absence of splash marks, and the localized injury in an area that would have been hard for the child to reach with a shower wand without involving other parts of her body. He repeatedly noted it was unlikely a child would intentionally expose themselves to that type of burn. He explained it was extremely difficult to envision that a person could cause a localized scalding injury to this area of the body without another person creating them. While he allowed that “anything is possible” in medicine, he maintained that only the most implausible of circumstances would see the child harming herself in this manner. I agree. His theory of the mechanism of nonaccidental injury is consistent with the child’s evidence. I note the witness arrived at this theory based upon his experience and the features of the child’s injury. The child herself was not prepared at the time to discuss the incident with him at the time he assessed her.
[48] I must then consider whether the Crown has proven beyond a reasonable doubt that a reasonable person in the circumstances would realize that the hot water would put C.M. at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that she suffered. I find that the Crown has proven this for the following reasons:
a. Dr. Warren testified that a remarkable feature of the burn was that it was a homogenous region, meaning it was all similar in depth and severity. It was confined to a localized area, rather than having differing areas of depths of burning, such as what one might see with splash marks. Hot fluid was either poured on this area or she was held, and the buttocks were placed in hot water. C.M.’s description of being ordered to turn around and having the shower head directed at her buttocks is consistent with this theory.
b. C.M. testified that she immediately felt the hot water and pain as soon as the shower head was directed towards her buttocks and that she cried out in pain. The hot water tank and plumbing were found to be in working order. The water would have to have been made hot and directed at the child’s young skin once it was hot. A person holding the shower wand and in control of the faucet would have an appreciation of the temperature. In those circumstances, a reasonable person would realize the child was at risk of bodily harm from the use of the hot water on the child’s bare skin.
[49] The Crown has therefore proven count 2 on the indictment beyond a reasonable doubt.
Count 1 - Failure to Provide the Necessaries of Life
[50] I now turn to whether the Crown has proven the charge of failure to provide the necessaries of life as against each defendant. I will first consider whether the evidence demonstrates a marked departure from the conduct of a reasonably prudent parent or caregiver in the circumstances as it relates to L.M. and then as it relates to B.W. Depending on this determination, I will then consider whether it was objectively foreseeable that this conduct “endangered” C.M.’s life within the meaning of the offence.
Delay in Medical Treatment a Marked Departure?
L.M.
[51] L.M. told police that he researched the injury and thought he would be able to treat it at home. He also relied on B.W.’s experience. He conceded the burn looked worse on the morning of February 21, 2022, and had already planned to take her to the hospital. Considering L.M.’s exculpatory statements, and the modified objective standard for the mens rea of this offence, I will need to consider whether I accept his evidence and whether, on the basis of it, I have a reasonable doubt about whether the Crown has satisfied any one of the essential elements required to prove that L.M. failed to provide the necessaries. Even if I do not accept his evidence, if, after considering it alone or in conjunction with the other evidence, I have a reasonable doubt whether the Crown has satisfied any one of the elements required to prove he failed to provide the necessaries of life, I must find L.M. not guilty: R. v. Ibrahim, at paras. 61-64.
[52] I agree with the defendants’ submissions that the issue of when a dependent should be taken for medical treatment is a matter of degree. We accept that parents and those with similar legal duties are not required by law to rush a child under their charge to medical attention whenever sickness or the prospect of injury arises. An error in judgment or a failing on the part of a parent or caregiver in accessing medical attention for a person in a position of dependency not amounting to a marked departure from the relevant standard attracted by the circumstances does not attract liability. A range of discretion is accorded to a parent respecting the discharge of the duty to provide medical attention to a child but is constrained by the minimum threshold of the marked departure standard: R.P. at paras. 34, 35.
[53] However, circumstances may arise where a parent should seek out a precautionary medical examination. The child’s observable symptoms by a parent or caregiver may recommend resort to medical professionals for assistance and treatment. A triggering incident or event may itself be of such a nature as to reasonably raise the prospect of serious and permanent endangerment of health and demand that a person be assessed to rule out serious injury or to receive treatment. When the gravity of the potential harm is great, there can be endangerment, even where the risk of harm is slight: R.P. at para. 36.
[54] I accept that L.M. was unaware of the cause of the injury and was also initially unaware of its extent. However, by his own admission he knew it was “kinda bad” or “terrible” looking from the moment he first saw it with his own eyes the morning after he understood it occurred. While it may not have formed the appearance with dead skin or eschar as when she was later found by the officers and Dr. Warren, L.M. conceded it was big and strange and red and bubbly when he first saw it. His explanation that his research informed him that he could treat the injury at home was unconvincing and lacked clarity. He could only say that he learned that you could “kind of deal with at home” if it was not “too terrible”. His plan was to “hope for the best”. However, the burn was over large area of her buttocks, and he knew it was “kinda bad”. Hope was not a reasonable plan in these circumstances, particularly where he recognized that the injury looked, in his words, “terrible”.
[55] It is arguable that the size and location of the burn, and his questions about how it could have happened ought to have prompted immediate medical attention at least when he first saw it. I will give him the benefit of the doubt on the fact that he did not check his daughter on the first evening and even when he first saw the injury and accept that it may be reasonable for a parent in those circumstances to use their judgment to initially try home treatment. However, as he gathered more information about his child’s situation over the course of that day and even the day following, as he remembers, he knew that the child was incapacitated, in pain despite Tylenol and the profuse use of aloe gel and unable to move from her bed to the point that he resorted to having her toilet on the bed. When these circumstances are considered along with his confusion about the cause of the injury and his recognition of its size and potential severity, I find that a reasonably prudent parent in those circumstances, gaining more awareness of the seriousness of the situation, would have opted to seek medical treatment once he had a fuller appreciation of the situation after his initial assessment of the injury. He may have initially thought that the injury was minor and insignificant. That impression ought to have changed once he saw the injury and his daughter’s symptoms. Her condition demanded continual reassessment. He knew he was dealing with a mysterious and large injury that was causing his daughter considerable pain and limitation. These circumstances called for precautionary medical treatment.
[56] The photographs of the child’s injuries do not demonstrate superficial wounds. These images demonstrate that the officers’ reaction to what they saw in the bedroom was not an overreaction or melodramatic. At its highest, the father can only say the wound did not initially look as bad as what the pictures later showed. However, through his own words he still acknowledges the wound was remarkable for its size, redness and blistering, and that it was “bad” and “terrible”.
[57] He previously did not hesitate to bring his daughter for medical assessment for far less concerns. He volunteered in his police statement that he had just recently taken C.M. to a walk-in clinic for a suspected yeast infection. In contrast, in these circumstances, the father made an irresponsible decision to persist with his strategy of “hoping for the best” in the face of a “kinda bad” and “large and strange” burn, ultimately resorting to have his daughter toilet into a dustpan or onto an absorbent pad while laying on her bed. Would a reasonable parent resort to such desperate toileting measures for a child in pain with open wounds without seeking medical attention? I find the answer is “no”. This is a marked departure from the conduct of a reasonably prudent parent in those circumstances.
[58] I do not accept that he was about to take C.M. to the hospital when the police coincidentally arrived. I allow that L.M. might have been struggling with this eventuality given his observations of his daughter’s symptoms, but I find no support on this record that he had already actively determined on this plan of action when the police came to his door. The defendant submits that C.M. herself agreed that he told her that morning that they would go to the doctor after they had breakfast. I have carefully reviewed this testimony. I find no such corroboration. When this was first put to C.M. she answered that her father saw the ambulance and said she was going to the hospital today. When pressed to agree that she overheard the defendants discussing a plan to take her to the doctor that day, she denied this and said they did not want to take her to the doctor. When she was again asked this question, she answered that she forgot.
[59] I also make note of the police officers’ testimony as to how their attendance at the defendants’ home unfolded. I allow that L.M. would be apprehensive about the police presence, given the custodial conflict; however, I otherwise share the officers’ skepticism about the timing of the disclosure of the injury on this visit. If L.M. had already decided to take her but was just trying to figure out how to transport her without an ambulance, why would he not ask the police for assistance? The defendants suggested I should entirely reject the testimony of Officer Mailloux as being unfair and biased. I do not agree. Both officers may have had a different timing of onset of suspicion, but they shared similar suspicions and concerns about the child’s welfare when they first understood the child was bed ridden and needed medical attention after about a half-hour was spent in persuading the defendants to cooperate in getting C.M. ready to return to her mother.
[60] From a consideration of the totality of the evidence, I find that L.M. did not take his daughter for medical treatment because of concerns about how such an injury occurring on his watch might affect his ongoing custody conflict with her mother. He minimized the severity of the injury and was reckless to the risks it posed for his daughter’s health and safety. It is the only reasonable conclusion that can be drawn from the whole of the evidence after considering other reasonable possibilities that are inconsistent with a marked departure. His efforts persisted through to attempting to dissuade the police from acting on the court order. Even at the time of his police statement he was preoccupied by his beliefs about the mother’s motivations, suggesting that the mother told C.M. to have bowel accidents in her underwear. He subordinated his daughter’s welfare to his own personal priorities. I neither accept his evidence nor am I left in reasonable doubt as to whether the Crown has satisfied me that his conduct was a marked departure.
B.W.
[61] The general principles that guide consideration as to when a parent or caregiver should take a child for medical assessment apply with equal force for B.W. Unlike with L.M., I have no direct evidence from B.W. as to an explanation for her conduct in failing to take the child for medical treatment.
[62] Nevertheless, I find that the Crown has also proven beyond a reasonable doubt that B.W.’s failure to seek medical attention for C.M. was a marked departure from the conduct of a reasonably prudent caregiver in the same circumstances.
[63] I have already explained that I accept from C.M.’s testimony that B.W. caused the injury with hot water that she intentionally applied directly to the child’s buttock area. Unlike L.M. this defendant had immediate and direct knowledge as to the circumstances of the burn.
[64] B.W. was present with L.M. throughout the time that home treatment was attempted. She would have seen how the injury developed. C.M.’s testimony referred to both L.M. and B.W. attending to her in her bedroom, being kind to her, bathing her, bringing her food and entertainment, and helping her with toileting and self-care. As with L.M., I will allow that B.W. may have reasonably thought the injury was minor on her initial assessment. However, she was then faced with further signs that this injury had potential severity requiring medical intervention. B.W. had the same opportunities as L.M. to see the burn with her own eyes and its effect on the child as I have just reviewed. Those same findings I have made regarding L.M.’s failures to act apply to this defendant with equal force and need not be repeated. B.W. would know about the appearance and extent of the wound, the child’s pain, limitations, and vulnerabilities, yet she participated in the home treatment and did not take steps to take the six-year-old for medical treatment.
[65] The police’s suspicions about the defendants’ behaviour and the timing of disclosure also applied to both L.M. and B.W. B.W. was present for the discussion and debate with the officers about returning the child to her mother. She made the utterance that C.M. was “bed ridden”, which prompted the officers to make further inquiries about the child’s welfare and why she had not gone to hospital before then.
[66] Considering the totality of the evidence, I find that B.W. did not take steps to arrange for medical treatment because she knew the burn was suspicious and would attract scrutiny with a risk for criminal consequences. Like L.M. she subordinated the child’s welfare to her own personal priorities. Again, I find this is the only reasonable inference that can be drawn from the whole of the evidence after considering other plausible possibilities that are inconsistent with her conduct being a marked departure. In explaining his decision-making and management of the child’s condition at home, I note that L.M. repeatedly referred to “we” or B.W. being part of those activities. To the extent that L.M.’s exculpatory reasoning for delaying medical treatment are shared by B.W., for the reasons already explained, I neither accept that evidence nor am I left in reasonable doubt as to whether the Crown has satisfied me that her conduct was a marked departure.
[67] For these reasons, I find that B.W.’s failure to cause earlier medical treatment for C.M. was a marked departure from the conduct of a reasonably prudent caregiver in the circumstances.
Objective Foreseeability of Endangerment
[68] I also find the Crown has proven beyond a reasonable doubt that it was objectively foreseeable for each defendant that the failure to obtain timely medical treatment endangered the child’s life. As previously noted, both the common definition and the meaning of this term within this offence are understood to mean exposing someone to danger, harm or risk: R. v. Thornton, (1991), 1991 CanLII 7212 (ON CA), 3 C.R. (4th) 381 (ON CA) at 389, aff’d 1993 CanLII 95 (SCC), [1993] 2 S.C.R. 445; R. v. Letourneau, 2007 CanLII 345 (ONSC) at para. 94; R v. R.P., 2004 CanLII 47791 (ONSC) at para. 38.
[69] The following evidence supports the conclusion that it was objectively foreseeable in the circumstances that the failure to provide the necessaries of life through the timely provision of medical treatment endangered C.M.’s life through exposing her to danger, harm, or risk:
a. Both defendants were aware C.M. was unable to walk because of the extent of her burn and was “bed ridden.” Both defendants would have been aware of and played a role in keeping her affected wound area uncovered so that clothing and other fabric would not adhere to the injured skin. This was not a medical condition that was invisible to the naked eye. It was an obvious traumatic injury involving a significant extent of the young child’s body.
b. Both police officers were immediately concerned by the appearance of the child’s wounds and saw the need for professional intervention without delay. Officer Morrow was visibly affected and shaken by his recollection of the injury during his testimony. He described the burns in his testimony as “the worst I have ever seen.” He was concerned to see that the child was using absorbent pads for toileting in the presence of open wounds and was worried about the risk of infection. Officer Mailloux similarly testified that he did not need his duty book notes to remember what he saw that day.
c. Indeed, Dr. Warren described the wound as a significant burn covering her buttocks, lower back, and upper thighs. He also similarly identified the risk of infection as a concern in the management of C.M.’s wound. He noted that one of the most difficult issues in burn management is if an infection occurs. It is difficult to keep the area of the buttocks and perineum totally clean in its management. He testified the area would take six to seven weeks to heal. She needed significant therapy and follow up in the burn clinic.
d. The presence of pain is relevant and is not merely a reflection of the child’s comfort or well-being. It goes to her physical and mental health and safety. Both defendants suggested there was little in the way of convincing evidence that the child was in pain or distress from her injury, particularly as the defendants were giving her treatment. They submitted it was equally plausible that C.M. was crying when the police arrived in her bedroom because she was half naked in the presence of two strange men in uniform. I disagree. Officer Mailloux testified that she was crying and appeared to be in distress from pain, noting that she was unable to move and needed to be carried. Even L.M. allowed that C.M. was in pain, although he arguably minimized its extent. He acknowledged in his police statement that she would cry and needed pain medication and cooling gel. Dr. Warren’s assessment and opinion also supports the conclusion that C.M. was in considerable pain. He described that she needed pain killers for his examination and catheterization because the urine would feel like pouring acid on a burn. He was also hopeful from his initial assessment that the fact that C.M. had “significant pain” in the burn area meant that the nerves were not destroyed, and she only had deep partial thickness burns as opposed to full thickness burns.
[70] The totality of these conditions and circumstances are such that they posed a danger, harm or risk for the child that was objectively foreseeable.
[71] I therefore find that it is proven beyond a reasonable doubt that it was objectively foreseeable for both defendants that the failure to provide the necessaries of life through the timely provision of medical treatment endangered C.M.’s life.
[72] For these reasons, I find that the Crown has proven beyond a reasonable doubt that the defendants failed to provide C.M. with the necessaries of life and that B.W. committed an aggravated assault on C.M. I find both defendants guilty on Count 1 of the indictment and B.W. guilty on Count 2 of the indictment.
Justice K. Tranquilli
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.
Released: November 26, 2024
R. v. L.M., 2024 ONSC 6551
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
L.M. and B.W.
REASONS FOR JUDGMENT
Justice K. Tranquilli
Released: November 26, 2024