



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Broomfield, 2014 ONCA 725

DATE: 20141021

DOCKET: C52434

Cronk, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tamara Broomfield

Appellant

James Lockyer and Saman Wickramasinghe, for the
    appellant

Randy Schwartz, for the respondent

Heard and released orally: October 14, 2014

On appeal from the convictions entered on April 1, 2009
    and the sentences imposed on July 8, 2010 by Justice Tamarin M. Dunnet of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Tamara Broomfield appeals convictions of assault causing bodily harm,
    aggravated assault, failing to provide the necessaries of life and
    administering a noxious substance. Each count and conviction relates to her
    conduct towards her son who was about two years of age at the time of the
    relevant events. Ms. Broomfield has served the sentences imposed for the
    convictions.

THE BACKGROUND FACTS

[2]

The circumstances that underpin the counts of which Ms. Broomfield has
    been convicted fall within narrow compass and can be summarized briefly.

The Fracture Counts

[3]

One count of aggravated assault and the count of failure to provide the
    necessaries of life relate to various fractures Ms. Broomfield caused to her
    sons wrist and ribs. X-rays confirmed that her sons wrist had been fractured
    not once but twice. He had suffered a total of eight fractured ribs, including
    two ribs that had been fractured twice.

[4]

The conviction of failure to provide the necessaries of life was entered
    because Ms. Broomfield failed to obtain medical care for her sons broken wrist.
    The charge of aggravated assault, which resulted in a conviction of assault
    causing bodily harm, relates to the multiple rib fractures she caused her son
    over a 14-month period.

The Cocaine Counts

[5]

The remaining convictions of aggravated assault and administering a
    noxious substance (counts four and six) have a common origin  the finding of
    cocaine or its metabolite (BZE) in her sons blood and urine.

[6]

At trial, Crown counsel adduced expert evidence about long-term cocaine
    ingestion from a pharmacologist/toxicologist and a technician in the Motherisk
    Program at the Hospital for Sick Children. A sample of the victims hair
    revealed high concentrations of cocaine and its metabolite, BZE, and led the
    expert to conclude that the victim must have ingested substantial amounts of
    cocaine throughout the 14-month period described in the indictment.

[7]

A live controversy at trial was whether the victim exhibited any
    behavioural signs consistent with chronic exposure to significant amounts of
    cocaine over the 14-month period.

[8]

The trial judge concluded that Ms. Broomfield had been giving cocaine to
    her son, in some form or other and in substantial amounts, for 14 months prior
    to his collapse on July 31, 2005 when he was rushed to the hospital. The trial
    judge concluded further that Ms. Broomfield gave her son cocaine on July 31,
    2005 that resulted in his collapse and seizure-like symptoms.

THE APPELLATE PROCCEEDINGS

[9]

Ms. Broomfield appeals her convictions. She has abandoned her appeal
    from the convictions arising out of the several fractures she caused her son
    but pursues her appeal from the convictions based on the ingestion of cocaine.
    In aid  of the appeals she pursues, Ms. Broomfield tenders the evidence of a toxicologist
    who:


i.

challenges the methods used to collect and prepare the hair sample on
    which the Crown expert relied in support of his opinion at trial;


ii.

criticizes the methodology used in the analysis of the sample; and


iii.

questions the validity of the results as given in evidence at trial.

The Admissibility of the Fresh
    Evidence

[10]

Counsel
    agree that the proposed fresh evidence  two reports of Dr. Craig Chatterton, the
    Deputy Chief Toxicologist in the Office of the Chief Medical Examiner in
    Edmonton, Alberta  should be received as fresh evidence under s. 683 of the
Criminal
    Code
because it is in the interests of justice to do so.

[11]

We
    agree.

[12]

We
    are satisfied that due diligence is not a factor that should weigh against the
    reception of the proposed evidence in this case. The evidence is relevant to a
    potentially decisive issue on the counts grounded on the administration of
    cocaine. The evidence is sufficiently credible to be admitted and could
    reasonably be expected to have affected the verdict on the two counts relating
    to the administration of cocaine. No evidence was adduced at trial to challenge
    the methodology used by the Crowns expert. The trial judge made her decision
    unaware of the genuine controversy among the experts about the use of the
    testing methods relied upon by the Crown expert at trial to found a conclusion
    of chronic cocaine ingestion, thus, its administration by Ms. Broomfield.

The Effect of the Admission of the
    Fresh Evidence

[13]

We
    also agree with the joint submission of counsel about the effect of the
    admission of the fresh evidence on the sustainability of the convictions of the
    cocaine administration counts. The conviction on count six  administering
    cocaine over a 14-month period  cannot be sustained. Further, the conviction
    of aggravated assault by administering cocaine to the victim on July 31, 2005
    thereby endangering his life, was founded, in part at least, on the finding
    that Ms. Broomfield had been administering cocaine to her son over the previous
    14 months.

[14]

It
    follows, in our view that the conviction on count four cannot stand.

CONCLUSION

[15]

In
    the usual course, admission of the fresh evidence would warrant quashing the
    conviction on counts four and six and ordering a new trial on those counts so
    that the competing expert opinions could play out before a trier of fact. But
    in this case, Crown counsel, in the best traditions of his office, invites us
    to stay the order for a new trial on the cocaine administration counts. He
    says, and we agree, that it is not in the interests of justice to proceed to a
    new trial on those counts because:


i.

the appellant has already served the equivalent of a 49-month sentence,
    more than double the sentence she was ordered to serve for the fracture-related
    counts; and


ii.

the appellant remains convicted of the fracture- related counts because
    she has abandoned her appeal from those convictions.

[16]

In
    the result, the appeal from the convictions on counts one (assault causing
    bodily harm) and three (failure to provide necessaries) is dismissed as
    abandoned. The fresh evidence is admitted in connection with the appeal from the
    convictions on counts four and six, the convictions on those counts are
    quashed, and a new trial is ordered. The order for a new trial is stayed.

E.A. Cronk J.A.

R.A. Blair J.A.

David Watt J.A.


