



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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.13, s. 18.

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. 2005, c. 32, s. 15.




COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. K.J., 2021 ONCA 570

DATE: 20210819

DOCKET: C67871

Watt, Roberts and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.J.

Appellant

Michael W. Lacy and Deepa Negandhi, for
    the appellant

Avene Derwa, for the respondent

Heard: April 22, 2021 by video
    conference

On appeal
    from the conviction entered by Justice Elizabeth C. Sheard of the Superior
    Court of Justice on November 13, 2019.

L.B.
    Roberts J.A.:

A.

Overview

[1]

The appellant appeals her conviction for aggravated assault against N.T.
    when he was about 13 months old. She received a two-year custodial sentence but
    did not seek leave to appeal her sentence.

[2]

The facts underlying the conviction are tragic. The appellant was
    N.T.s caregiver. On July 20, 2016, N.T. suffered a seizure while in the
    appellants care and was taken to the hospital by emergency personnel. He had a
    severe head injury. His treating physicians could not determine the cause of N.T.s
    head injury, though they suspected that he had sustained trauma to his head.

[3]

This appeal turns on the trial judges treatment of the medical
    expert evidence on the causation of N.T.s head injury.

[4]

For the reasons that follow, I would allow the appeal and order a
    new trial.

B.

Factual Background

[5]

As
    a new trial is required, I am careful to provide only a summary of the relevant
    factual background, taken primarily from the trial judgment, without any comment
    on the correctness or reasonableness of the trial judges findings.

[6]

At
    the time of the offence, the appellant had just started to provide day care
    services to N.T., who was then 13 months old. She had been looking after his almost
    four-year-old brother, J.T., for several years without any incident. A childcare
    worker with 11 years of experience, she had cared for children in her own home for
    almost 5 years. There had never been any issues with the children in her care,
    and she had never previously spoken to the police or the Childrens Aid
    Society. The appellant and N.T.s parents had known each other for years. N.T.s
    parents indicated that they trusted her and did not believe that she would
    intentionally harm their children in any way.

[7]

On
    July 20, 2016, by all accounts, N.T. had enjoyed a typically happy morning and
    exhibited no signs of illness or injury. He breakfasted with his mother and brother,
    and watched television with them before his mother dropped them off at the
    appellants house at around 8:00 a.m. The appellant noted in her police statement
    that N.T. and his brother had a regular morning with her.

[8]

At
    around 11:40 a.m., the appellant called N.T.s mother, E.T., and advised that there
    was something wrong with N.T.: his eyes looked abnormal, his body was stiff,
    his head was banging, and she thought he had stopped breathing. Paramedics were
    called, and they transported N.T. to the hospital for emergency care.

[9]

N.T.s
    medical records from his hospital stay were filed on consent. They indicated
    that upon his arrival at the hospital N.T. was having a seizure, and that he had
    the following injuries: a large subdural haematoma on the left side of his
    brain; numerous retinal hemorrhages; ischemic injuries from lack of blood flow caused
    by the haematoma; mild compression fractures in his upper vertebrae; and a number
    of small bruises, including on the back, left eye, head, and groin. N.T.s treating
    doctors were unable to determine the exact cause of N.T.s injuries but suspected
    that he had sustained trauma to his head.

[10]

N.T.s
    parents testified that he had experienced a couple of recent falls. About a
    week before July 20, N.T. did a barrel roll off their deck, like a cartwheel,
    and hit the back of his head on patio stones. On July 16 or 17, N.T. slid out
    of the bathtub onto the bathmat, his face made contact with the floor, and he ended
    up with a mark on his left temple. His parents said that N.T. was well after
    each fall.

[11]

The
    appellant voluntarily gave a statement to police on July 21, 2016. She did not
    testify at trial. In her police statement, the appellant denied hurting N.T. in
    any way. She, however, recalled a few occasions when N.T. may have hit his head.
    On July 19, when she left him briefly in the living room to answer the door, N.T.
    fell and hit the coffee table, which to her sounded like he hit his head. Although
    she did not tell the interviewing officer, in one of her text messages to E.T.,
    the appellant said he vomited later that day. The appellant told the interviewing
    officer about how she thought that on July 20, N.T. may have hit his head
    against the wrought iron child stool when he was upset and twisting in it during
    lunch, or later against the change table when he was almost banging his head as
    she tried to change his diaper. According to the appellant, N.T. did not show
    any signs of unwellness until sometime later that morning when she went to check
    on him while he was napping, picked him up, and tried to change his diaper
    again. She then saw the signs of illness that she immediately reported by
    telephone to N.T.s mother.

[12]

There
    was no dispute at trial that N.T. had tragically sustained a serious brain injury
    that would likely result in future developmental deficits. The trial turned on
    the conflicting expert evidence called by the Crown and the defence as to the
    cause of N.T.s head injury.

[13]

The
    Crowns expert, Dr. Baird, opined that no underlying medical condition or recent
    illness could explain N.T.s injuries and concluded that the only remaining
    plausible explanation was severe inflicted head trauma, which he believed
    had to have occurred on the change table when the appellant was changing N.T.s
    diaper. He testified that while persons with injured brains can have seizures
    days after an accident, the type and degree of retinal hemorrhages N.T. suffered
    were not consistent with the minor short falls and other incidents described by
    N.T.s parents and the appellant. He believed that if N.T.s injuries had been caused
    by an accident, the accident needed to be so significant and dramatic that the
    event would not have gone unnoticed by his caregiver. He was of the view that since
    N.T. exhibited normal neurological function before July 20 and because there
    was no report of any episode of accidental trauma which has any authoritative accepted
    scientific literature to be associated with the types of hemorrhages that he
    has, N.T.s brain injury was caused by severe acceleration/deceleration forces
    that were inflicted upon him immediately before the hospital visit.

[14]

The
    appellants expert, Dr. Ramsay, also ruled out any underlying disorder or disease
    as a possible cause for N.T.s subdural bleeding. He agreed that N.T.s
    subdural bleeding, retinal hemorrhages, and damage to the brain (the triad) are
    typical of acceleration/deceleration injuries. However, he cautioned against
    reliance on the triad alone because of its unreliability in demonstrating an impact
    head injury. He noted that there were factors present which went against the
    finding of an acceleration/deceleration injury, including N.T.s large subdural
    hemorrhage, and the localized brain damage that was explained by an expanding haematoma.
    In addition, he testified that N.T.s injuries, specifically his retinal
    hemorrhages and subdural hemorrhages, can be caused by short falls. Dr. Ramsay explained
    that adults and children can suffer from subdural haematomas without being
    symptomatic immediately. They experience a lucid interval of seeming wellness
    until the accumulation of subdural blood and consequent compression of the brain
    results in drowsiness, headache, and loss of consciousness. Dr. Ramsay opined
    that while N.T.s injuries could have been caused by the application of acceleration/deceleration
    forces, they also could have been caused by one or a combination of the three
    short falls he suffered.

[15]

The
    trial judge preferred and accepted the Crowns expert evidence that the only
    possible explanation for N.T.s injury was severe inflicted head trauma, likely
    from acceleration/deceleration forces. The trial judge found that the injury could
    not have been self-inflicted as there was no evidence of a significant fall or a
    similar accident. She therefore concluded that the appellant intentionally applied
    force to N.T. and caused his head injury while he was in her care on July 20, 2016.

C.

Issues

[16]

The
    appellant raises several grounds of appeal. To dispose of this appeal, it is necessary
    to address only the ground that the trial judge erred in her assessment of the
    expert evidence concerning the cause of N.T.s head injury.

[17]

As
    I shall explain, the trial judges approach to assessing the expert evidence on
    causation was flawed. She first chose which expert she preferred and then viewed
    the other experts evidence and the rest of the trial evidence through that lens.
    This was an error. The trial judge should have considered the expert evidence, along
    with all the other evidence at trial, through the analytical framework
    prescribed by the Supreme Court in
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, to determine whether the Crown had met its heavy burden of
    proving the appellants guilt beyond a reasonable doubt.

D.

Analysis

[18]

In
    the case of conflicting expert evidence that is crucial to understanding the material
    issues to be decided, it is tempting for a trier of fact merely to choose one
    expert over another, and to allow an expert witnesss evidence to distort the
    fact-finding process and overtake the task of objectively assessing the
    totality of the evidence at trial:
R. v. Parnell

(1983), 9 C.C.C. (3d) 353 (Ont. C.A.), at p. 364, leave
    to appeal refused, [1984] S.C.C.A. No. 333;
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at p. 21. It is common ground that such an approach constitutes
    legal error. Unfortunately, that is what occurred in this case.

[19]

A
    trier of fact must be careful to consider all of the evidence through the
W.(D.)

analytical framework. Specifically,
    to convict an accused, a trier of fact must be satisfied beyond a reasonable
    doubt, based on the totality of the evidence, that all the elements of the charged
    offence have been proven. This means that the evidence of each witness has to
    be assessed in the light of the totality of the evidence without any presumptions
    except the general and over-riding presumption of an accused persons innocence:
R. v. Thain
, 2009 ONCA 223, 243 C.C.C. (3d)
    230, at para. 32. Expert evidence is only a part of the evidence that a trier
    of fact is required to assess in order to determine if the Crown has proven an
    accuseds guilt beyond a reasonable doubt: see
R. v. Wade

(1994), 18 O.R. (3d) 33 (C.A.), at p. 43, revd in part,
    [1995] 2 S.C.R. 737;
R. c. Blackburn
, 1999
    CanLII 13509 (Que. C.A.), at p. 23; and
R. v. Smith
(2001),
    161 C.C.C. (3d) 1 (Ont. C.A.), at para. 117, leave to appeal refused, [2002]
    S.C.C.A. No. 156.

[20]

The
    Crown submits that, despite the language used in her reasons, the trial judge
    did not simply prefer one expert over the other. The Crown argues that when the
    trial judges impugned comments with respect to preferring Dr. Bairds
    evidence are read in the context of the entirety of her reasons, it is evident
    that she rejected Dr. Ramsays evidence on lucid intervals and that she was not
    left in a reasonable doubt by his evidence.

[21]

I
    disagree.

[22]

Even
    when read generously and as a whole, the trial judges reasons demonstrate that
    she did not consider the expert evidence in relation to the totality of the evidence
    at trial. Instead, she determined in isolation that she preferred Dr. Bairds
    evidence before she turned to the rest of the trial evidence, which she then assessed
    through the fixed lens of Dr. Bairds opinion. This led her to misapply the
W.(D.)
framework. She rejected not only the defence expert
    evidence of Dr. Ramsay, but all the defence evidence because of its inconsistencies
    with Dr. Bairds opinion. Further, she never meaningfully considered whether
    Dr. Ramsays evidence, along with all the other evidence that supported the
    defence, left her with a reasonable doubt as to the appellants guilt.

[23]

The
    trial judge began her analysis of the competing expert testimony by effectively
    indicating, at para. 163 of her reasons that the test was whether she preferred
    one expert over the other and that she ultimately preferred Dr. Bairds opinion:

For Dr. Ramsays alternate theory to be accepted, the court must prefer
    Dr. Ramsays evidence to the evidence of Dr. Baird on a number of key issues
,
    including whether a child who had suffered injuries similar to [N.T.s] can
    experience a lucid interval post-injury.
Dr. Baird was unshaken in his view that in his experience and his review
    of the literature, there is nothing to support Dr. Ramsays lucid interval
    theory.
[Emphasis added.]

[24]

The
    trial judges uncritical acceptance of Dr. Bairds evidence stands in marked contrast
    to her unfavourable treatment of Dr. Ramsays evidence where it differed from
    Dr. Bairds opinion. While it was certainly open to the trial judge to find
    frailties with Dr. Ramsays evidence, her negative treatment of his evidence seems
    to have arisen from her acceptance of Dr. Bairds evidence against which she
    was comparing it.

[25]

The
    trial judge concluded that the greatest frailty in Dr. Ramsays opinion
    related to his assertion that children can have lucid intervals following a head
    impact that has caused subdural bleeding. She appears to have rejected Dr. Ramsays
    opinion about lucid intervals principally because it was inconsistent with Dr.
    Bairds opinion, and because Dr. Ramsay did not reference any literature to support
    the lucid interval theory in his report and could not remember the names of
    relevant authors at the trial. However, the trial judges observation on the
    last point was incorrect. During his cross-examination, Dr. Ramsay referred to a
    paper by Denton and Mileseuvic, which described children who developed subdural
    haematomas after short falls, but who were well for a day or two after the
    falls.

[26]

Although
    the trial judge correctly stated, at para. 181, of her reasons that the opinions
    offered by Drs. Baird and Ramsay may not be permitted to usurp [her] role as the
    trier of fact and that while [she] may consider the opinions offered by each
    expert on how [N.T.] came to be injured, [her] decision must be based on all the
    evidence that [she] accepts, she did not follow these instructions. Rather,
    before she looked at all the other trial evidence, including the appellants statement
    to police, the trial judge concluded, at para. 188:

For all  the foregoing reasons,
I prefer the evidence of Dr. Baird and the first
    of Dr. Ramsays two possible explanations for [N.T.s] injuries.
Both explanations include a determination that [N.T.] suffered an inflicted
    acceleration/deceleration injury. [Emphasis added.]

[27]

The
    trial judge turned next to assessing the other trial evidence and rejected any
    evidence that was inconsistent with Dr. Bairds opinion. She applied the
W.(D.)
framework only to the appellants police statement
    and only through the lens of Dr. Bairds opinion that none of the accidental
    events described by the parents and the appellant caused N.T.s injuries. As
    earlier noted, the trial judge seems to have never applied the second prong of
W.(D.)
to consider whether Dr. Ramsays hypothesis that these
    accidental events could have caused N.T.s injuries left her with a reasonable
    doubt as to the appellants guilt. She simply considered whether the appellants
    evidence left her with a reasonable doubt about her guilt and concluded that it
    did not because of her earlier acceptance of Dr. Bairds opinion: None of the
    accidental events described by [the appellant] in her statement to police or in
    the texts to [N.T.s mother] can or do explain how [N.T.] came to suffer the
    acceleration/deceleration injuries.

[28]

The
    trial judges premature preference for Dr. Bairds opinion is repeated in para.
    212 of her reasons where she analyzes the rest of the evidence under the
    third prong of
W.(D.)
to determine whether the
    Crown had proven the appellants guilt beyond a reasonable doubt. It is clear
    that she analyzes the evidence in the light of her acceptance of Dr. Bairds
    evidence, as she states:

Having preferred the evidence of Dr. Baird and Dr. Ramsays first hypothesis
,
    I conclude that [N.T.] suffered an acceleration/deceleration injury sometime between
    approximately 8 a.m. and 11:30 a.m. on July 20, 2016, while he was in the care
    of [the appellant]. [Emphasis added.]

[29]

Ultimately,
    the trial judges acceptance of Dr. Bairds opinion led her to conclude that there
    was no evidence of a significant fall or similar accident that could have caused
    N.T.s injury and that there are no plausible theories or reasonable possibilities
    inconsistent with a finding of guilt.

[30]

By
    preferring one expert over another, without examining the expert evidence
    through the
W.(D.)

framework
    and in the context of the totality of the evidence, the trial judge fell into legal
    error. The expert evidence was crucial to the principal issue of the causation
    of N.T.s head injury. A new trial is therefore required.

E.

Disposition

[31]

For these reasons, I would allow the appeal and
    order a new trial.

Released: August 19, 2021 D.W.

L.B. Roberts
    J.A.

I
    agree David Watt J.A.

I
    agree M. Jamal J.A.


