



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity is
    protected by the order. 205, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.W., 2016 ONCA 96

DATE: 20160202

DOCKET: C59172

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.W.

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Joanne Stuart, for the respondent

Heard: January 22, 2016

On appeal from the conviction entered by Justice Jennifer
    Blishen of the Superior Court of Justice, sitting without a jury, on October
    11, 2013.

ENDORSEMENT

[1]

The appellant appeals his conviction on two counts of assault causing
    bodily harm in relation to his two-month-old infant. The infant suffered 12 rib
    fractures. The evidence was that the fractures were incurred on two separate occasions
    during the course of a hospital stay at the Childrens Hospital of Eastern
    Ontario (CHEO).

[2]

The appellant submits that the verdict on the first count was
    unreasonable or, in the alternative, the trial judge failed to properly apply the
    principles in
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742
. With respect to the second count, the
    appellant submits that the trial judge erred in her application of
mens rea
for assault causing bodily harm and misapplied the test for implied consent in
    the context of a parent-child relationship.

[3]

We disagree for the following reasons.

The First Conviction

[4]

It is our view that the verdict in relation to the first set of
    fractures is reasonable. The scope of appellate review for unreasonable verdict
    is narrow. To determine the reasonableness of the verdict this court must
    decide, on the evidence as a whole, whether the verdict is one that a properly
    instructed trier of fact, acting judicially, could reasonably have rendered:
R.
    v. Pannu,
2015 ONCA 677
,
    127 O.R. (3d) 545, at paras. 161-163.

[5]

A trier of fact can accept some, none, or all of what a witness says. We
    see no error in the trial judges factual findings in this case.

[6]

First, she determined that the factures occurred sometime between
    January 25 and January 30, 2011. This conclusion was based on the expert
    evidence and the interpretation of the x-ray results.

[7]

Given the fact that the infant suffered a left anterior rib fracture and
    a right posterior rib fracture, and in light of the fact that there was no history
    of impact or accident, the trial judge accepted the expert evidence as to the
    potential causes of the injuries. The expert evidence supported that the
    fractures were non-accidental compression fractures from squeezing the front
    and back of the childs ribcage.

[8]

The trial judge also considered the appellants evidence and his
    admission that he grabbed the infant hard around the ribs in an effort to
    prevent a fall and that this might have caused fractures. The way the appellant
    described this fall was inconsistent with the expert evidence on the nature,
    location, and likely causes of the injuries. The trial judge therefore found
    the appellants story to not be credible.

[9]

The injuries were localized to the ribcage, just under the infants armpits.
    The expert evidence was corroborated by the observations of nurse Munro, who saw
    the appellant holding the baby under his armpits. As pointed out by the Crown,
    the trial judge was entitled to consider all of the evidence, including the observations
    by the two nurses of instances where the infant screamed out
    uncharacteristically. We agree that she was entitled to accept how the nurses
    professional experience informed their observations.

[10]

In
    all the circumstances, based on the evidence, the trial judge was entitled to
    find that the appellant had caused the fractures to his son, and in our view,
    her factual findings are reasonable and entitled to deference.

[11]

The
    appellant also submits that the trial judge erred in her application of the
    reasonable doubt standard pursuant to
W. (D.)
. We do not agree. While
    the trial judge did not recite the test as articulated in
W. (D.)
, she
    did consider all of the evidence and found that the appellants innocent
    explanation for the fractures was not credible or reliable. She rejected the
    appellants evidence in light of competing evidence, considered the Crowns
    case, and found his guilt was established beyond a reasonable doubt. Although
    she did not explicitly refer to the second step of the
W. (D.)
analysis, a precise articulation of the
W. (D.)
formula is not
    required:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7.

[12]

As
    the Supreme Court of Canada recently reiterated in
R. v. Vuradin
,
[2013] 2 S.C.R. 639, at para. 27, when
    a trial judge rejects an accuseds testimony in a trial by a judge alone, it
    can generally be concluded that the testimony also failed to raise a reasonable
    doubt in the trial judges mind. In our opinion, that is the situation here.

[13]

The
    appeal in relation to count one is dismissed.

The Second Conviction

[14]

The
    trial judge found that the second set of rib fractures occurred between January
    30 and February 3, 2011. She also found that they occurred when the appellant
    squeezed or compressed the babys chest in an attempt to revive him during an
    apneic episode.

[15]

The
    appellant argues that where consent is at issue, the Crown must prove beyond a
    reasonable doubt that the appellant intended to cause bodily harm in order to
    secure a conviction. He relies on
R. v. McDonald
, 2012 ONCA 379, 284
    C.C.C. (3d) 470, and related cases.

[16]

The
    appellant further submits that the trial judge did not reject his evidence that
    he was attempting to administer CPR to the child because the childs life was
    in danger. He says it is reasonable to imply the childs consent for the
    appellant to have applied at least some force to save his life. The appellant
    submits that consent only becomes a nullity when the Crown proves that the
    appellant intentionally caused the bodily harm to the child.

[17]

Decisions
    like
McDonald
about adults engaged in consensual fights are
    fundamentally different than those involving children. As this court noted in
R.
    v. A.E.
(2000), 146 C.C.C. (3d) 449, at para. 28:

It was noted in
Jobidon
that policy based limits on
    consent are almost always the product of a balancing of individual autonomy and
    some larger societal interest. In the
Jobidon
situation, public policy
    vitiates the voluntary decision of the victim to consent. In this case, there
    is no concern about balancing an infants individual autonomy, or its freedom
    to choose to have force intentionally applied to itself. An infant is uniquely
    vulnerable to the quality of care and the decisions made on its behalf by its
    parents. The balancing exercise is therefore a different one.

[18]

The
    trial judge correctly recognized that even if she did accept the appellants
    evidence that he was attempting to administer CPR, the force applied must not
    be excessive for the defence of deemed consent to apply:
A.E.
, at
    para. 37.

[19]

A
    reasonable person would realize that the force applied to the infant, enough to
    cause ten anterior and posterior fractures, was excessive and outside the range
    of normal care even in these urgent circumstances. The defence of implied
    consent therefore does not arise on the circumstances of this case. In our
    opinion she did not err in law.

[20]

The
    appellant further submits that the trial judge was required to come to her own
    decision as to whether the appellant applied excessive force or acted outside
    what a reasonable parent would. She simply quoted the expert evidence as
    opposed to making her own finding.

[21]

The
    trial judges reference to the expert evidence was a shorthand way of accepting
    the expert evidence. Dr. Putnins explained that while it is possible to
    fracture ribs while performing CPR, this would occur after prolonged CPR. This
    is rare and the fractures would be anterior, not posterior, and would be fewer
    in number. Here the evidence was that the CPR was relatively brief and there
    were ten fractures. The submission that the expert evidence should be rejected
    because the studies in question related to persons trained to do CPR, raised
    for the first time on appeal, finds no support in the evidence.

[22]

Having
    regard to the whole of the evidence, as the trial judge did, we see no error.

[23]

The
    appeal on the second count is also dismissed.

K.M. Weiler J.A.

M. Tulloch J.A.

David Brown J.A.


