



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monckton, 2017 ONCA 450

DATE: 20170602

DOCKET: C58800

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Monckton

Appellant

Raymond Boggs, for the appellant

Craig Harper, for the respondent

Heard: February 28, 2017

On appeal from the convictions entered by Justice Alexander
    Sosna of the Superior Court of Justice, sitting with a jury, on November 21,
    2012, and from the sentence imposed on February 22, 2013, with reasons reported
    at 2013 CanLII 87464.

Trotter J.A.:

A.

overview

[1]

Michael Monckton was convicted of second-degree murder for killing
    Keagan Davis, the 2 ½-year-old son of his girlfriend. He was also convicted of
    assault causing bodily harm in relation to the injuries Keagan suffered in the
    weeks or months leading up to his death.

[2]

Keagan was the son of Leigh-Ann Cooper and Dan Davis, who were separated.
    Keagan lived with his mother. She met the appellant on the Internet in August
    of 2010 and started dating. The appellant moved in two months later. By the end
    of November, he was laid off from his job and became Keagans caregiver during
    the day, while Ms. Cooper was at work.

[3]

On the morning of January 5, 2010, the appellant messaged Ms. Cooper at
    work. He told her to call 911 and come home. When she arrived home, Keagan lay
    lifeless on his bedroom floor. Paramedics were unable to revive him. Keagan was
    pronounced dead at the hospital. An autopsy revealed that he had suffered a
    shocking array of serious and painful injuries.

[4]

The appellant denied harming or killing Keagan. He argued that many of
    Keagans injuries were inflicted before he came into the picture. The appellant
    pointed the finger at Ms. Cooper, although he did not testify himself.

[5]

The appellant appeals his convictions, and the 15-year period of parole
    ineligibility imposed by the trial judge. For the reasons that follow, the
    appeals are dismissed.

B.

the facts

(1)

Introduction

[6]

Keagan was born on May 25, 2007. For the first two years of his life,
    Keagan and his parents lived with different members of their extended families.
    Apart from surgery for an undescended testicle, Keagan was healthy. Many family
    members participated in caring for Keagan and were in a position to observe how
    Ms. Cooper and Mr. Davis parented him. They observed no problems. Nobody
    involved in Keagans care physically disciplined him.

[7]

Ms. Cooper and Mr. Davis ended their relationship in April 2009, but Mr.
    Davis had access to Keagan on a regular basis. Ms. Cooper found her own
    apartment in September of 2009, where she lived with Keagan.

(2)

The Appellant Enters the Picture

[8]

Ms. Cooper met the appellant in August of 2009. He spent a great deal of
    time at her apartment. He moved in shortly afterwards. In one of his statements,
    the appellant told the police he had been living there for about five months.

[9]

In November of 2009, the appellant and Mr. Davis got into an argument on
    the phone. The appellant apparently said that Keagan was a retard and should
    be dead. Mr. Davis did not mention this utterance until the third time he spoke
    to the police. The argument between Mr. Davis and the appellant escalated and
    Mr. Davis was charged with threatening death. As a consequence of his bail
    conditions, he was not allowed to see Keagan until Christmas day that year.

[10]

The appellant lost his job on November 30, 2009. He remained home and
    looked after Keagan. Ms. Coopers mother, who had been assisting with Keagans
    care, stopped her daily visits. However, Keagan continued to occasionally sleep
    at her home.

[11]

Members of the Cooper and Davis families started to notice marks and
    injuries on Keagans body in the fall of 2009. Ms. Coopers sister, Laura,
    noticed small circular bruises on Keagans back when she bathed him. Other
    injuries family members observed included: a goose egg and bruise to Keagans
    forehead; rug burns to his hip; and yellow bruises to his lower back. Ms.
    Cooper noticed bruising down the middle of his back. On Christmas Day, Mr.
    Davis family noticed bruises to Keagans back and forehead, and redness on his
    scalp. They were so concerned that they photographed the injuries. Keagan also
    complained of pain when Mr. Davis mother took his hand. The appellant
    explained away some of Keagans injuries as the result of a fall.

[12]

In addition to noticing these injuries, family members also testified to
    a change in Keagans behaviour in the fall of 2009. He became upset when
    leaving his grandparents homes.

[13]

Keagan was sick on and off from December 28, 2009 until the day he died.
    He experienced flu-like symptoms. Ms. Cooper did not take Keagan to the doctor because
    she was concerned about the H1N1 virus, although she did seek treatment for
    herself at a walk-in clinic. She treated Keagans symptoms with Motrin and
    Gravol. On one occasion, Keagan was injured in the kitchen. The appellant told
    Ms. Cooper that Keagan fell off a kitchen chair and vomited. Ms. Cooper found
    him in a pool of vomit, with a bleeding nose. On January 2, 2010, Keagan had a
    bruise on his upper back and on the nape of his neck. The appellant said Keagan
    fell into a wooden chair while playing with another child.

(3)

January 5, 2010

[14]

Leigh-Ann Cooper got up at 6:30 a.m. and left for work at 7:30 a.m.
    Keagan was fine when she left. Ms. Cooper had planned to return home for lunch
    at about 11:30 a.m. At 11:33 a.m., she received a message from the appellant,
    telling her to come home quickly and to call 911. When Ms. Cooper arrived home,
    Keagan was not breathing. The appellant was performing CPR. Ms. Cooper called 911
    at 11:40 a.m. The appellant came on the line at one point to say that he had a
    shower with Keagan and put underwear on him, put him in his room, and when he
    returned, Keagan was lying on the floor. During the call, the operator
    encouraged the appellant and Ms. Cooper to perform CPR.

[15]

The police soon arrived at the scene. Keagan appeared lifeless and was
    without vital signs. The appellant was crouched down beside Keagan, but not
    performing CPR. Referring to the ambulance, he yelled, Where the fuck are
    they? A similar utterance can be heard on the 911 recording, during which the
    appellant said he was performing CPR.

[16]

When the paramedics arrived, Keagan was taken to the ambulance, where he
    could be treated more effectively. All of the paramedics testified that Keagan
    was wearing a diaper, not underwear, as the appellant said. Keagan was rushed
    to the hospital where he was pronounced dead.

(4)

The Appellants Statements

(a)

At the Scene

[17]

The appellant spoke to officers at the scene. Both he and Ms. Cooper
    were very emotional. The appellant appeared to be in shock. He cried at one
    point.

[18]

The appellant said that he and Keagan slept-in that morning. When they
    woke up, the appellant said that he took Keagan into the shower. After the
    shower, Keagan had a bowel movement in the toilet. Officers on the scene noted
    solid feces in the shower stall, something the appellant failed to mention to
    police at the scene.

[19]

The appellant told the police that Keagan had been complaining of a sore
    stomach and was sick for two weeks, with diarrhea, vomiting, fever and trouble
    breathing. The appellant said he found Keagan in distress on the bed, where he
    had left him briefly to get dressed. He picked Keagan up and put him on the
    floor. This contradicted his statement to the 911 operator that he
found
Keagan on the floor.

(b)

Later That Day

[20]

After being told that Keagan was dead, Mr. Davis and the appellant left
    the hospital in hysterics. Mr. Davis was persuaded to return. The appellant did
    not. That evening, the appellant spoke to Ms. Cooper and her father on the phone.
    Mr. Cooper asked the appellant to come home. The appellant said: But I wont see
    my kids again. Mr. Cooper asked, If you didnt do anything wrong, why
    wouldn't you be able to see your kids? The appellant said nothing.

(c)

The Police Interviews

[21]

On January 7, 2010, the appellant voluntarily went to the police
    station. Near the end of the interview, he was arrested for murder. He
    exercised his right to counsel. The interview continued shortly afterwards, but
    was terminated when the appellant experienced medical difficulties.
[1]
He was interviewed again on January 8, 2010.

[22]

In the first interview, the appellant denied harming Keagan. He said that
    he did not wake up until roughly 11 a.m. However, Ms. Coopers cell phone
    records revealed communication with the appellant at 8:12 a.m. and 9:47 a.m. Keagan
    was not feeling well and wanted the appellant to come into the shower with him.
    The appellant again failed to mention the feces in the shower. He dressed Keagan
    in underwear and put him on the bed. It was only later that the appellant moved
    Keagan to the floor when he realized that he was in distress. The appellant had
    no idea why Keagan went into distress that morning.

[23]

The appellant explained that he did not return to the hospital after
    learning Keagan had died because he was afraid to face Ms. Cooper and her
    family after failing to save Keagan.

[24]

The appellant continued to deny any wrongdoing in his second interview.
    For the first time, he mentioned that Keagan defecated in the shower. He admitted
    telling family members he wanted to kill himself, but only because he wanted to
    trade places with Keagan.

(5)

The Medical Evidence

[25]

Keagan suffered many injuries, at different times. It was important to
    determine when these injuries were caused in order to identify who caused them.

[26]

Dr. Michael Pollanen, a forensic pathologist, identified the cause of death
    as blunt abdominal trauma in a child with head injury and multiple other
    injuries of varying age.

[27]

Keagan suffered significant injuries to his mesenterythe fan of blood
    vessels, fat and connective tissue that surrounds the intestines and attaches
    them to the abdominal wall. Dr. Pollanen identified three sets of mesenteric
    injuriesrecent, healing and healed. The recent mesenteric injuries involved
    six lacerations, which resulted in bleeding in Keagans abdominal cavity. This
    injury could have been caused by one significant blow, within minutes to hours
    before death. The healing injuries occurred within days or weeks prior to
    death. The healed injuries within several weeks (perhaps months) before his
    death.

[28]

In addition to the recent mesenteric injury, Keagan suffered other
    recent injuries, including:

·

Bleeding within the abdominal wall;

·

Bleeding in and around the duodenum;

·

Four contusions underneath the skin at the top of the head, back
    of the head, right temple and left jawline. These were likely caused by the
    head coming into contact with broad, flat surfaces, each representing a
    separate contact point;

·

Bleeding in the left shoulder muscle, resulting from direct
    contact or forceful movement of the arm;

·

Bleeding under the skin of the tailbone; and

·

Two bruises on the penis, caused by pinching or twisting.

[29]

Dr. Pollanen found dozens of other injuries to this child. Keagans
    brain reflected changes from either trauma or lack of oxygen. He had three distinct
    bruises on his face, and suffered a laceration to the upper lip and frenulum,
    likely from punching, slapping or the forcing of an object into his mouth.

[30]

Keagan had six broken ribs. These fractures were either healed or
    healing. With the exception of a re-fracture of one of the ribs, Dr. Pollanen
    excluded CPR as the cause of these injuries, which would have required
    considerable force, within weeks of Keagans death.

[31]

Keegan had compression factures of three vertebrae, with disc bleeding,
    caused by significant force, either to the top of his head or to his buttocks.

[32]

Dr. Pollanen identified 18 small, circular bruises to the exterior of
    the abdomen, consistent with punching or heavy prodding, likely occurring
    within 3 to 5 days of death. He also found 13 bruises on Keagans back,
    including the neck, shoulder blades and spinal column.

[33]

Keagan suffered an abrasion or friction injury to his scrotum, which was
    covered by a scab.

[34]

Keagan had four bruises on his upper arms, all caused by blunt force.
    Significantly, the left forearm bones (both the ulna and the radius) had been
    fractured. A significant amount of force would have been required to cause
    these injuries, which likely occurred within weeks of his death. Of similar age
    were symmetrical fractures of both of his ring fingers, also caused within
    weeks of his death.

[35]

Lastly, Keagan suffered 14 blunt force injuries to his lower limbs.

[36]

Dr. Pollanen testified that Keagans injuries were indicative of child
    abuse. He rejected CPR as the cause of Keagans death. He explained that there
    was no demonstrable, non-traumatic cause for his sudden collapse or death.

[37]

Dr. Pollanen was challenged on his estimates of the timing of Keagans
    injuries. He agreed that Keagans recent injuries could have been 18 to 24
    hours old. However, Dr. Pollanen was generally of the view that Keagans recent
    abdominal injuries were inflicted within minutes to hours of death, and certainly
    around the time of death.

[38]

Similarly, with respect to Keagans fractures, Dr. Pollanen agreed that
    it could take up to 16 weeks for secondary calluses to form around the healing
    fractures. However, he qualified this answer in the following way: But again,
    if we are going to talk about specific weeks, then if you want a more precise
    answer, I would have to check the medical literature on that.

[39]

The Crown also relied on the evidence of Dr. Michelle Shouldice, an
    expert in paediatrics and the evaluation of suspected injuries in children. Dr.
    Shouldice testified that the bruising found over Keagans body was the result
    of multiple applications of force. She expected that a child with Keagans
    injuries would be in a lot of discomfort and would cry when the injuries
    occurred. Discomfort would continue for some time.

[40]

Dr. Shouldice testified that Keagans abdominal injuries were significant
    and not typical of common toddler falls. A significant amount of force would be
    required to crush tissues within the abdomen. She explained that common
    symptoms of this type of injury in a child include vomiting, loss of appetite
    and changes in bowel habits. Dr. Shouldice said that children with abdominal
    trauma just generally dont appear well. She testified that CPR could have caused
    the recent damage to Keagans mesentery, but ruled out CPR as a cause of his
    older mesentery injuries. She deferred to Dr. Pollanen on the timing of
    Keagans mesentery injuries.

[41]

With respect to the healing process of the forearm, Dr. Shouldice
    testified that it could take up to six months, especially if the arm was not
    immobilized. However, she again deferred to Dr. Pollanen on the issue of
    timing.

C.

THE APPEAL AGAINST CONVICTION

[42]

The appellant raises a number of grounds of appeal that relate to the
    timing of Keagans injuries and whether the appellant had the opportunity to
    cause them. It was the appellants position at trial, and on appeal, that some
    of Keagans older injuries were inflicted before he ever met Keagan. Because
    the Crown alleged that one person caused all of Keagans injuries, the
    appellant could not be found guilty of inflicting any of them, including those
    that were fatal. The appellant did not testify himself, but through his
    counsels cross-examinations and closing address to the jury, he suggested that
    Ms. Cooper was responsible for her sons death.

(1)      Instructions to the Jury
    to Consider the Evidence as a Whole

[43]

The appellant argues that the trial judge failed to sufficiently instruct
    the jury to consider the evidence against the appellant as a whole. This error
    was compounded, the appellant contends, by the trial judges answer to a
    question concerning the aggravated assault charge.

[44]

This ground of appeal relates to the timing of Keagans injuries,
    especially in light of how the indictment was framed, and then amended just
    before the trial judges final instructions to the jury. This requires further
    elaboration.

(a)      The Indictment and Its Amendment

[45]

The appellant was originally charged with three offences, with the
    following time frames: (1) second-degree murder (on January 5, 2010); (2)
    aggravated assault (endangering life) (between October 1, 2009 and January 5,
    2010); and (3) assault causing bodily harm (between October 1, 2009 and January
    5, 2010). January 5, 2010 was common to all three counts.

[46]

During an extensive Pre-Charge Conference, the trial judge expressed
    concern about the overlapping date of January 5, 2010 and the jurys
    deliberations on the aggravated assault count. Observing that there was no
    medical evidence that established that the healed and healing mesenteric
    injuries endangered Keagans life, the trial judge was concerned that, if the
    jury found the appellant was guilty of murder, it might automatically conclude
    that the appellant also endangered Keagans life by inflicting similar injuries
    on an earlier occasion.

[47]

The trial judge was ultimately satisfied that medical evidence existed from
    which the jury could infer that Keagan suffered life-endangering injuries
    before January 5, 2010. However, to focus the jurys attention, the trial judge
    proposed that the time frame of the aggravated assault and assault causing
    bodily harm counts be amended to end on January 4
th
, the day before
    Keagan died, rather than on January 5
th
.

[48]

In his factum, the appellant argues that the trial judge erred in
    amending the indictment in this manner. However, counsel for the appellant explicitly
    consented to this amendment. Nevertheless, the appellants main argument on
    appeal is that, without a proper instruction that the jury must consider all of
    the evidence when considering each of the three counts, the jury may have
    considered the evidence as it related to Keagans fatal injuries without ever
    considering the potential timing of some of his earlier injuries, and whether
    they occurred before the appellant entered the picture.

(b)      The Trial Judges Instructions

[49]

In his final instructions to the jury, the trial judge explained the recent
    amendment to the indictment:

You will see the same date of January the 4
th
on the
    assault causing bodily harm count. Again, this was done to keep your
    deliberations focused. In other words, on these two counts, you will be dealing
    with the evidence of the healed and healing injuries.

On the charge of aggravated assault, in accordance with the
    Crowns position, I suggest you focus on the healed and healing injuries
    sustained to the mesentery.

[50]

Seven times throughout the rest of his charge, the trial judge stressed
    that the jury must consider all of the evidence in deciding whether the
    appellant was guilty of any one of the three counts. Counsel for the appellant
    had no objections to the trial judges charge to the jury. He did not identify
    the inadequacy now raised on appeal.

(c)      The Jurys Questions

[51]

On the second day of deliberations, the jury asked the following two
    questions at the same time:

We, the jury, respectfully request clarification on the
    following two questions:

1. Does the charge of aggravated
    assault specifically apply to the healing and healed mesentery injuries or the
    sum of all injuries?

2. Could you please clarify the
    definition of state of mind as it pertains to the decision tree for second
    degree murder?

[52]

In the colloquy that followed, the Crown and the defence agreed that the
    aggravated assault charge related to the healed and healing mesentery injuries,
    but not the sum of all of Keagans injuries. Defence counsel advised the trial
    judge: I would agree that it was healed and the healing. The trial judge
    answered the jurys question accordingly.

[53]

Following this instruction, the appellant argued that the trial judge
    failed to provide the jury with an instruction about circumstantial evidence
    and reasonable doubt, in accordance with
R. v. Griffin
, 2009 SCC 28,
    [2009] 2 S.C.R. 42. Even though the jury had already received this instruction
    much earlier in the main charge, the trial judge obliged and gave this
    instruction again. This repetition was the last instruction the jury heard
    before delivering its verdicts.

(d)

The Trial Judge Did Not Err in His Approach

[54]

In all of the circumstances, given the live issues at trial, and the
    positions of counsel, I can find no error in the manner in which the trial
    judge instructed the jury on this issue, or in how he answered the jurys
    question.

[55]

Looked at in their entirety, the trial judges instructions to the jury
    were comprehensive, fair and focused on the salient issues at trial: see
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 33 and 35; and
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 28-31. It is not determinative that
    defence counsel failed to object to matters now complained of on appeal. However,
    it is an important consideration in assessing whether the jury was properly and
    fairly instructed:
Jacquard
, at paras. 37-38;
R. v. Polimac
,
    2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A.
    No. 263, at para. 89; and
R. v. Chandrakumar
, 2007 ONCA 798, 231
    O.A.C. 30, at para. 36.

[56]

The trial judge properly instructed the jury on all critical issues with
    the full agreement of experienced trial counsel. The amendment to the
    indictment and the trial judges final instructions helped the jury apply the
    complex medical evidence to the temporal issues framed by defence counsel. The
    manner in which the jury was charged did not undermine the appellants position
    that, based on the theory of a single perpetrator of all of Keagans injuries,
    he had to be excluded because of the potential timing of the earlier injuries,
    which occurred at a time when the appellant could not have been the perpetrator.

[57]

I would not give effect to this ground of appeal.

(2)      Was the Murder Conviction Unreasonable?

[58]

The appellant argues that the second-degree murder verdict is unreasonable
    and unsupported by the evidence. This argument has two components: (1) there
    was no evidence upon which the jury could find that the appellant caused the
    various injuries Keagan sustained; and (2) there was no evidence from which the
    jury could be satisfied beyond a reasonable doubt that the appellant had the requisite
mens rea
for murder. I deal with each in turn.

(a)      The Appellant as Perpetrator

[59]

As with the previous ground of appeal, the appellant focuses on aspects
    of the evidence that suggest potential timelines for Keagans injuries that
    pre-dated the appellants involvement in his life.

[60]

There was evidence favourable to the appellant on this issue. This
    emerged through the cross-examinations of Dr. Pollanen and Dr. Shouldice.
    Counsel for the appellant attempted to leverage the qualifications made in
    their evidence about the timing of Keagans injuries to create reasonable doubt
    about whether the appellant was the perpetrator. However, this potential for
    reasonable doubt does not equate with an unreasonable verdict.

[61]

It was ultimately for the jury to assess the weight of this medical
    evidence, in the context of all the evidence, against the standard of proof
    beyond a reasonable doubt. On appeal, when considering the reasonableness of a
    verdict, the focus is different. As Tulloch J.A. wrote in
R. v. McCracken
,
    2016 ONCA 228, 348 O.A.C. 267, at para. 34:

The issue is not whether the reviewing court
    would have convicted the appellant, but whether the evidence, viewed through
    the lens of judicial experience, was reasonably capable of supporting a finding
    of guilt. The reviewing court must ask itself whether the jurys verdict is
    supportable on
any
reasonable view of the evidence and whether
    proper judicial fact-finding applied to the evidence
precludes
the
    conclusion reached by the jury (emphasis in original):
R. v.
    W.H.
,
2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 2,
    26-28. [Emphasis in original.]

[62]

Applying the same approach to this case, the verdict was not
    unreasonable or lacking support in the evidence. The timing of Keagans injuries
    was not the exclusive domain of expert evidence. This issue had to be
    determined in light of all of the evidence, including the following:

·

The appellant had sole care of Keagan on the morning he died; his
    mother was at work;

·

The appellant did not call 911 when Keagan was in distress;

·

The appellant excluded Ms. Cooper as a suspect in his pre-trial
    statements, although this position changed by the time of trial;

·

The appellants post-offence conduct (
i.e
.
, his
    suicidal thoughts and his statement to Mr. Cooper that he would not see his
    children again) suggested a belief that he was responsible for Keagans death;

·

The appellant made contradictory pre-trial statements, and his
    phone records suggest that he did not sleep in until 11 a.m., as he told
    everyone he did; and

·

The appellant was the primary caregiver of Keagan in the weeks
    leading up to his death, when Keagan sustained multiple severe injuries.

[63]

Turning to the expert evidence, the cross-examination of Dr. Pollanen
    and Dr. Shouldice elicited answers that raised the
possibility
that
    some of Keagans injuries were caused before the appellant entered Keagans
    life; however, these answers must be viewed in context.

[64]

Dr. Pollanen specifically described the limitations inherent in
    providing timelines for injuries. As he explained:

And then what is frequently the case is that tribunals such as
    this want to know, What does that mean in time? Can you give us hours, days,
    weeks, months, years? To some extent we can do that but we have to recognize
    the limits on that. So in other words, I know of no method that would allow a
    pathologist to determine discreetly, you know, the precise age of a wound but
    we can give some general guidelines and so as we move through the injuries that
    we have here, we can give general guidelines about the duration of those
    injuries.

[65]

This caution was important in the evaluation of Keagans injuries. In
    his examination-in-chief, Dr. Pollanen estimated that the healed mesenteric
    injuries were weeks to months old. Asked in cross-examination whether he could
    rule out the possibility of these injuries being 12 months old, Dr. Pollanen
    answered:

Could it be 12 months? My impression wasnt  it wasn't that it
    was that old. I guess the question is could I exclude that?



I dont think I could totally exclude  I don't think you could
    exclude  if you had an area of scar tissue that was relatively stable, healed
    for months, could you differentiate it from an area of scar tissue that you
    knew was a year old? Probably not.

[66]

A fair reading of Dr. Pollanens evidence as a whole is not that he
    accepted of 12 months as his best professional judgment of the age of the
    healed mesenteric injuries; he simply could not exclude this theoretical time
    frame. He maintained his original opinion that these injuries were weeks to
    months old. The same observations are applicable to his time-estimates of
    Keagans other injuries, including his fractures.

[67]

In all of the circumstances, there was evidence to support the jurys
    conclusion that the appellant caused Keagans fatal injuries. Furthermore,
    there was an evidentiary basis from which the jury could reasonably infer that
    all of the injuries suffered by Keagan were at the hands of the appellant.

(b)      The Intent for Murder

[68]

The appellant further argues that, if the appellant was the perpetrator
    of Keagans fatal injuries, there was no evidence that he intended to kill him.
    The appellant submits on appeal, as he did before the jury, that, at its
    highest, the evidence only established liability for manslaughter, not murder.
    I disagree.

[69]

The trial judge instructed the jury on both aspects of the requisite
mens
    rea
for murder in 229(a) of the
Criminal Code
, which provides:

229
Culpable
    homicide is murder

(a)
where the person who causes the death of a                       human
    being

(i)
means to cause his death, or

(ii)
means to cause him bodily harm that he                knows is
    likely to cause his death, and is reckless  whether death ensues or not.

The trial judge expanded his instructions on the
    application of this provision when the jury asked for clarification in its
    question, discussed above.

[70]

With the exception of post-offence conduct, the evidence detailed in
    paragraph 62, above, is capable of supporting the inference that, when the
    appellant assaulted Keagan on January 5, 2010, he intended to kill him or, more
    probably, intended to cause Keagan bodily harm that he knew was likely to cause
    his death, and was reckless whether death ensued or not. Of great significance
    on this issue is the degree of force required to cause Keagans fatal injuries.
    Weighing only 32 pounds, he suffered six lacerations to his mesentery. A jury
    could reasonably conclude that an adult male who inflicted this type of harm on
    such a small child did so with one of the intents in s. 229(a) of the
Criminal
    Code
.

[71]

As I have already noted, the post-offence conduct evidence relevant in
    identifying the appellant as the perpetrator of Keagans injuries was not
    probative on the issue of intent: see
R. v. Arcangioli
,
[1994] 1 S.C.R. 129. The trial judge was careful to remove it from
    the jurys consideration on this issue.

[72]

The appellant points to certain features of the
    evidence that he contends undermine the presence of the requisite
mens
    rea
.
First, the appellant argues that his
    behaviour after Keagan fell ill on January 5, 2010 was inconsistent with an
    intention to kill Keagan. He points to his life-saving efforts and his obvious
    signs of distress when EMS personnel arrived at the house, and later at the
    hospital after Keagan had died.

[73]

It was open to the jury to consider these items of evidence in deciding
    whether one of the intents for murder in s. 229(a) had been proved beyond a
    reasonable doubt. However, they may have had minimal value. The evidence
    concerning life-saving efforts was equivocal. Ms. Cooper testified that the appellant
    performed CPR on Keagan. However, officers on the scene maintained that they
    did not see the appellant actively engaged in CPR. It must also be remembered
    that the appellant did not call 911. He messaged Ms. Cooper instead.

[74]

More importantly, the appellants subsequent actions and emotional presentation
    were not necessarily inconsistent with someone who,
at the point in time
    when the fatal assault occurred
, intended to kill Keagan or cause the
    serious type of bodily harm contemplated by s. 229(a)(ii) of the
Code
.

[75]

The jury was instructed that, to find the appellant guilty of
    second-degree murder, one of the two mental states for murder must be present
    at the time he inflicted harm on Keagan. In
R. v. Cooper
, [1993] 1
    S.C.R. 146, also a case of second-degree murder, Cory J. said at p. 157: There
    is, then, the classic rule that at some point the
actus reus
and the
mens
    rea
or intent must coincide. See also
R. v. Williams
, 2003 SCC
    41, [2003] 2 S.C.R. 134, at para. 35; and Don Stuart,
Canadian Criminal Law
     A Treatise
, 7th ed. (Toronto: Carswell, 2014), at pp. 399-401. This
    rule, often referred to as the simultaneous principle, does not require a
    lingering murderous intent after this point of convergence. If the appellants acts
    and mind came together as contemplated by this principle, his subsequent shock,
    horror or regret, combined with apparent efforts to undo what he had just done,
    were of no moment.

[76]

The appellant further argues that, assuming the prosecution theory that
    a single perpetrator inflicted all Keagans injuries, the fact that the healed
    and healing mesenteric injuries did not result in death suggests a lack of
    intent on the appellants part in inflicting the subsequent, fatal injuries.
    This argument was made to the jury during defence counsels closing address. By
    its verdict, the jury rejected this line of reasoning. This rejection does not
    make the jurys verdict unreasonable.

[77]

Moreover, this argument is undermined by Keagans precise cause of death.
    It was not restricted to the recent mesentery injury; Dr. Pollanen described it
    as blunt abdominal trauma in a child with head injury and multiple other
    injuries of varying age.

[78]

The verdict of guilty on the count of second-degree murder was
    reasonable and supported by the evidence.

(3)      Inconsistent Verdicts

[79]

The appellant was convicted of second-degree murder and assault causing
    bodily harm; he was acquitted of aggravated assault. He argues that the jurys
    verdict of guilty on the murder count is inconsistent with the acquittal on the
    aggravated assault count. I disagreeall three verdicts are reconcilable based
    on their different conceptual elements, the nature of the evidence that applied
    to each of them and the significant temporal divide caused by the amendment of
    the indictment.

[80]

In
R. v. Catton
, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 21,
    Doherty J.A. provided the following account of the law concerning inconsistent
    verdicts:

Inconsistent verdicts are a subspecies of
    unreasonable verdicts:
R. v. Pittiman
, [2006]
    1 S.C.R. 381 at para. 6. If a trier of fact returns a conviction on one count
    (or against one accused), and an acquittal on another count (or against a
    co-accused), the inconsistency in the verdicts will only render the conviction
    unreasonable if the appellant can demonstrate that on any realistic view of the
    evidence, the verdicts cannot be reconciled on any rational or logical
    basis:
R. v. McShannock
(1980), 55
    C.C.C. (2d) 53 (Ont. C.A.), at 56;
Pittiman
, at paras. 7-8.

[81]

Assessing the consistency of verdicts engages a consideration of
    the elements of the offences in question, temporal considerations, and the nature
    and quality of the evidence relating to specific counts. As Charron J. said in
R.
    v. Pittiman
, 2006 SCC 9,
[2006] 1 S.C.R. 381,
at
    para. 8:

in the case of a single accused charged with multiple
    offences, different verdicts may be reconcilable on the basis that the offences
    are temporally distinct, or are qualitatively different, or dependent on the
    credibility of different complainants or witnesses.

[82]

While the appellant seeks to impugn his conviction for murder by
    attempting to show its inconsistency with his acquittal for aggravated assault,
    it is important to consider the verdicts on all three counts that were before
    the jury. As a whole, the three verdicts that the jury reached are readily
    explainable.

[83]

I start with the nature of the offencesmurder (s. 229(a)),
    aggravated assault (s. 268), and assault causing bodily harm (s. 267(b)). Each
    has different elements.

[84]

The key elements of murder have already been described above in
    terms of the mental element. Of course, in addition to the
mens rea

requirements, an essential component of murder is causation: the force an
    accused inflicts must be a significant contributing cause of death.

[85]

To be found guilty of aggravated assault under s. 268, an accused
    person must commit an assault that wounds, maims, disfigures or endangers the
    life of another person. In this case, the charge was particularized to allege
    endangerment of life. Accordingly, given that the Crown relied upon Keagans
    earlier (healed and healing) mesenteric injuries to prove this offence, it was
    required to prove that Keagans life was endangered by the infliction of this
    specific harm, and not the harm inflicted on January 5, 2010.

[86]

Assault causing bodily harm in s. 267(b) is distinguished from
    aggravated assault by virtue of the type of harm caused. Section 267(b) must be
    read in conjunction with s. 2 of the
Criminal Code
, a provision of
    general application, which defines bodily harm as any hurt or injury to a
    person that interferes with the health or comfort of the person and that is
    more than merely transient or trifling in nature.

[87]

These elemental differences provide a complete explanation for the
    conviction for assault causing bodily harm and the acquittal on aggravated
    assault. The jury could have been satisfied that the appellant inflicted the
    kind of harm that amounted to bodily harm within the timeframe of these counts
    on the indictment (October 1, 2009 to January 4, 2010), while at the same time
    entertaining a reasonable doubt about whether Keagans life was actually endangered
    by that same bodily harm.

[88]

The different verdicts on the murder and aggravated assault charges are
    explained by the different evidentiary foundations applicable to both offences.
    Counsel agreed that the aggravated assault allegation related only to the
    healed and healing mesenteric injuries. To ensure the jury did not convict the
    appellant for both murder and aggravated assault for the same actthe recent
    mesenteric injuriesthe trial judge amended the indictment to make the murder
    and aggravated assault timeframes mutually exclusive. The jury was instructed
    that it had to determine the appellants liability on the aggravated assault charge
    without consideration of the fatal blows suffered by Keagan on January 5, 2010.

[89]

As both defence counsel and the trial judge pointed out, the
    healed and healing mesenteric injuries provided a weak evidentiary basis for
    aggravated assault. During the Pre-Charge Conference, the trial judge initially
    observed that there was no evidence that Keagans life was endangered by the
    previous injuries to his mesentery. Defence Counsel agreed: There is no
    evidence that those injuries alone could have put his life at risk. Referring
    to Dr. Pollanens evidence concerning mesenteric injuries, counsel said: this
    injury aloneeven on the doctors evidence as to the cause of death, this
    injury alone may not have caused the death. So, prior injuries of a similar
    nature, theres no evidence that they put his life at risk. It was entirely
    possible that the jury was satisfied that the appellants conduct on January 5
    amounted to murder, but that the evidence of healed and healing mesenteric
    injuries did not make out the aggravated assault charge.

[90]

Lastly, while the mesenteric injuries were critical to the
    aggravated assault charge, the cause of Keagans death was described in broader
    terms, involving more than just the recent injuries to his mesentery. Again, the
    cause of death was described as blunt abdominal trauma in a child with head
    injury and multiple other injuries of varying age.

[91]

In all of the circumstances, the verdicts are reconcilable. Accordingly,
    I would not give effect to this ground of appeal.

D.

The Appeal Against Sentence

[92]

The appellant was sentenced to a mandatory term of life
    imprisonment. The trial judge imposed a period of 15 years before the appellant
    is eligible to apply for parole. The appellant submits that the period of
    parole ineligibility was too harsh. In support of this position, he applies to
    adduce fresh evidence of his Aboriginal status, a matter that was not disclosed
    to his counsel at trial. Consequently, it was not brought to the attention of
    the trial judge on sentencing.

(1)      The Appellants Background

[93]

At the time of the offences, the appellant was 26 years old. He
    was 30 when he was sentenced.

[94]

The appellant has two children from a previous relationship. He
    also has a criminal record, dating back to late 2008, containing convictions
    for criminal harassment, breach of recognizance, mischief and breach of
    probation. These offences all related to the fallout from two of the
    appellants previous relationships. When he killed Keagan, the appellant was
    bound by three probation orders. Moreover, on November 19, 2009, the appellant
    was registered in the Child Abuse Registry with the Ontario Ministry of
    Community and Social Services. This related to his caregiving role in the life
    of another child. No criminal charges arose from the investigation that
    resulted in the appellants registration.

[95]

In his Pre-Sentence Report (PSR), the appellant reported that
    he enjoyed a close relationship with both of his parents, as well his younger
    sister. The appellant has struggled with alcohol in the past and no longer
    drinks. He reported using MDMA and marijuana, up until a few days before his
    arrest.

(2)      The Jurys Recommendations

[96]

Under s. 745.2 of the
Criminal Code
, the jury made
    recommendations about the appellants parole eligibility. Two jurors made no
    recommendation; four jurors recommended that parole not be available for 15
    years; and six jurors recommended that the appellant serve 25 years before
    becoming parole-eligible.

(3)      The Trial Judges Reasons

[97]

In written Reasons for Sentence, the trial judge addressed the factors
    for determining parole ineligibility set out in s. 745.4the character of the
    offender; the nature of the offence and the circumstances surrounding its
    commission; and the recommendations of the jury. Based on these factors, the
    Crown at trial submitted that a 15-year period of parole ineligibility was
    appropriate, whereas the defence requested the minimum, 10 years.

[98]

After reviewing the leading decision of the Supreme Court of
    Canada in
R. v. Shropshire
, [1995] 4 S.C.R. 227, the trial judge
    referred to the appellants high moral culpability and the horrific nature
    of Keagans deathcompounded by the litany of other injuries Keagan sustained
    in the weeks prior to death, and determined that the minimum period of parole
    ineligibility was not appropriate. Observing that the senseless and brutal
    murder of a defenceless child in ones care is an egregious breach of trust,
    the trial judge set the period of parole ineligibility at 15 years. He imposed
    a five-year concurrent sentence for the assault causing bodily harm conviction.

(4)      The Fresh Evidence

[99]

As I have already noted above, the appellant seeks to rely upon
    his Aboriginal status on his appeal from sentence. This was not brought to the
    attention of his trial counsel, nor the trial judge. The appellant did not raise
    the issue with the author of the PSR.

[100]

The
    appellant did not make an application to adduce fresh evidence on the sentence
    appeal under ss. 683 and 687 of the
Criminal Code
, as he should have
    done. Instead, the appellant simply included in his Appeal Book an affidavit
    from his father, Harvey Monckton.

[101]

In
    this affidavit, Mr. Monckton swears that, I am a Native Canadian and have been
    for over 30 yearsI am from the 6 Tribes reserves [and] my Native Tribe is
    called Oneida. He further states that his other two children [have] been
    Native Status for over 2 years and that the appellant is also Native by
    virtue of being my son, and is in the process of getting his Native Status. Mr.
    Monckton also swears that that the appellant wishes to learn more and more
    about his heritage and has become involved in Aboriginal programing while
    incarcerated.

[102]

Harvey Moncktons affidavit stands alone. There is nothing from the
    appellant that sheds light on his Aboriginal status and how it has factored in
    his life and his present circumstances.

[103]

In
    his Amended Supplementary Notice of Appeal, the appellant requests that, on the
    basis of Harvey Moncktons affidavit, he should receive the minimum period of
    parole ineligibility. At the hearing of the appeal, counsel for the appellant
    requested that his sentencing be remitted to the trial judge to be determined
    in accordance with s. 718.2(e) of the
Criminal Code
.

[104]

Section
    687 of the
Code
sets out the powers of an appellate court on a sentence
    appeal:


687

(1)
Where an appeal
    is taken against                          sentence, the court of appeal shall,
    unless the                          sentence is one fixed by law, consider the
    fitness               of the sentence appealed against, and may on                          such
    evidence, if any, as it thinks fit to require or                      to
    receive,

(a)
vary the sentence within the limits prescribed        by law
    for the offence of which the accused was    convicted; or

(b)
dismiss the appeal.

[105]

This
    provision provides appellate courts with two optionsto impose the sentence
    that it believes ought to have been imposed; or to dismiss the appeal outright.
    Unlike appeals from dangerous offender proceedings (s. 759(3)(a)(ii)), on
    appeals under s. 687 there is no third option to remit the matter to the trial
    judge, even where an appellant raises his aboriginal status for the first time
    on appeal: see
R. v. Kakekagamick
(2006), 81 O.R. (3d) 664 (Ont. C.A.),
    leave to appeal refused, [2007] S.C.C.A. No. 34, at para. 60; and
R. v.
    Pelletier
(1989), 52 C.C.C. (3d) 340 (Que. C.A.), at pp. 346-348. Generally,
    it will be inefficient to remit a case for re-sentencing because the new
    sentence that is imposed may itself be the subject of an appeal, re-engaging
    the appellate court to consider the matter again.

[106]

Returning to Harvey Moncktons affidavit, Mr. Harper for the Crown,
    quite fairly, does not stand on formal procedure to strenuously resist this
    court considering the material placed before us. Instead, he submits that,
    because of its vague and incomplete nature, it would not have made any
    difference to the sentence that was imposed at trial.

[107]

The
    well-known criteria for the admission of fresh evidence, traceable to
R. v.
    Palmer
, [1980] 1 S.C.R. 759, apply in the sentencing context. However,
    appellate courts are more flexible with the sources and types of evidence they
    are willing to receive in sentence appeals: see

R. v. Lévesque
,
    2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 16-21; and
R. v. Angelillo
,
    2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 13-15.

[108]

In
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, Cromwell J.
held that
the admission of fresh evidence on sentence appeals
    must be flexible and responsive to the innumerable situations that present
    themselves to appellate courts. As he concluded at para. 31:

At the level of principle, the approach set
    out in
Lévesque
and
Angelillo
strikes the balance between the competing values and, when applied
    thoughtfully to the particular circumstances before the court, provides
    sufficient flexibility to ensure that the appellate process is both responsive
    to the demands of justice and respectful of the proper limits of appellate
    review.

[109]

The failure of
    the appellant to inform his counsel of his Aboriginal heritage remains a
    mystery. Nevertheless, given the importance of the values embodied in s.
    718.2(e) of the
Criminal Code
, as recognized in many cases, most
    notably
R. v. Gladue
, [1999] 1 S.C.R. 688 and
R. v. Ipeelee
,
    2012 SCC 13, [2012] 1 S.C.R. 433, this is an appropriate case to admit the
    fresh evidence and to consider it in reviewing the fitness of the sentence
    imposed.

(6)

The Fitness of the Sentence

[110]

The trial judge
    addressed the factors set out in s. 754.4 of the
Criminal Code
.
    Understandably, the gravity of the offences played a dominant role in his
    analysis, leading to the great weight being attributed to the principle of
    denunciation. The trial judge correctly identified the appellants egregious
    breach of trust, as recognized by s. 718.2(a)(iii), as a serious aggravating
    factor. The period of parole eligibility was in accordance with previous
    decisions of this province dealing with the murder of young children: see
R.
    v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused,
    [2010] S.C.C.A. No. 179;
R. v. Bottineau
, 2011 ONCA 194, 269 C.C.C.
    (3d) 227, leave to appeal refused, [2011] S.C.C.A. No. 455;
R. v. Khan
,
    2007 ONCA 779, 230 O.A.C. 174;
R. v. Olsen
(1999), 131 C.C.C. (3d) 355
    (Ont. C.A.);
R. v. Biddersingh
, 2016 ONSC 5663; and
R. v. Whalen
,
    2014 ONSC 5481.

[111]

Keagan was
    murdered when he was 2 ½ years old. The last few months of this little boys
    life must have been utterly miserable. He endured an existence marked by
    extreme pain, one that he could not possibly understand, nor prevent. By its
    verdicts, the jury found that the appellant was responsible for the shocking
    abuse of this child, resulting in multiple fractures, dozens of other injuries
    and, ultimately, death.

[112]

The jurors recommendations,
    by and large, reflect an elevated level of moral culpability on the part of the
    appellant. This was in line with the trial judges assessment of the appellant.
    The circumstances of this case required a period of parole ineligibility that
    reflected the need for general deterrence and denunciation. There was little
    before the trial judge that reflected favourably on the appellants background
    or character that would offset the importance of these goals of sentencing.

[113]

Based on the
    record that was before him, I can find no error in the trial judges analysis.
    Nevertheless, s. 718.2(e) requires a consideration of an offenders Aboriginal
    status at sentencing: see
Kakekagamick
, at para. 37; and
R. v.
    Radcliffe
, 2017 ONCA 176, at para. 62. In light of the fresh evidence
    about the appellants Aboriginal heritage, this is an appropriate case to
    reassess the fitness of his sentence. However, I am not persuaded that the
    appellants Aboriginal status should affect the result.

[114]

The problem lies
    in the vagueness of the information concerning the appellants attitude towards
    his Aboriginal status. The court was merely provided with general information
    from the appellants father about his sons interest in his heritage.

[115]

Of course, the
    appellant is not required to draw a straight line between his Aboriginal roots
    and the offences for which he is being sentenced: see
Ipeelee
, at paras.
    82-83; and
R. v. Kreko
, 2016 ONCA 367, 131 O.R. (3d) 685, at paras.
    21-22. However, more is required than the bare assertion of an offenders
    Aboriginal status.

[116]

In
Radcliffe
,
    this court addressed the failure of a sentencing judge to order a
Gladue
Report in the context of a dangerous offender proceeding. Writing for the
    court, Watt J.A. described the proper approach to sentencing Aboriginal
    offenders (at paras. 52-55):

It is now firmly established that when
    sentencing an Aboriginal offender, a judge must consider:

i.                 the
    unique systemic or background factors which may have played a part in bringing
    the particular Aboriginal offender before the court; and

ii.               the
    types of sentencing procedures and sanctions which may be appropriate in the
    circumstances for the offender because of his or her particular Aboriginal
    heritage and connection.

See
R. v. Gladue
, [1999] 1 S.C.R. 688, at para. 66;
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

. . .

Courts are required to take judicial notice of
    the systemic and background factors affecting Aboriginal people in Canadian
    society. But, on their own, these matters about which judicial notice must be
    taken do not necessarily justify a different sentence for Aboriginal offenders.
    They provide the necessary
context
for
    understanding and evaluating the case-specific information which counsel have a
    duty to present, absent express informed waiver of the right to have it
    presented:
Ipeelee
, at para. 60.

Although systemic and background factors
    provide the necessary context to enable a judge to determine an appropriate
    sentence, rather than to excuse or justify the underlying conduct, it is only
    where the unique circumstances of an offender bear on culpability, or indicate
    which sentencing objective can and should be actualized, that they will
    influence the ultimate sentence. [Emphasis in original.]

[117]

These
    observations are applicable to the present case. In the materials placed before
    us, t
here is no information
from
the appellant, or
about
the
    appellant, that lifts his life circumstances and Aboriginal status from the
    general to the specific. This new information does not impact on the sentence
    that was imposed.

The sentence imposed was fit.

E.

DISPOSITION

[118]

The conviction appeal
    is dismissed. Leave to appeal sentence is granted, but the sentence appeal is
    dismissed.

Released:

GTT                                                   G.T.
    Trotter J.A.

JUN -2 2017                                     I agree
    J. MacFarland J.A.

I
    agree G. Pardu J.A.





[1]

The trial judge ruled this part of the interview inadmissible
    due to the infringement of the appellants right to silence under s. 7 of the
Charter
.


