Ontario Criminal



Accused’s conviction for assault causing bodily harm against infant son upheld on appeal

Accused was convicted of two counts of assault causing bodily harm to his two-month-old infant son. Infant suffered 12 rib fractures. Fractures were incurred on two occasions during course of hospital stay. Accused appealed both convictions. Accused claimed that verdict on first count was unreasonable or that trial judge failed to properly apply principles of W. (D.). Regarding second count accused claimed that judge erred in her application of mens rea for assault causing bodily harm and that she misapplied test for implied consent in context of parent-child relationship. Appeal dismissed. Regarding first conviction verdict regarding first set of fractures was reasonable. There was no error in judge’s factual findings. Based on nature of fractures and due to lack of history of impact or accident, expert evidence supported conclusion that fractures were not accidentally inflicted. Judge properly found accused’s evidence to not be credible since it was inconsistent with expert evidence. Judge was therefore entitled to find that accused caused fractures to his son. W. (D.) was properly applied. Regarding second conviction even if judge accepted accused’s evidence that he attempted to administer CPR, force administered could not be excessive and defence of implied consent did not apply since accused use excessive force. Judge, therefore, did not err in law. Judge acted properly when she quoted expert evidence, for it was shorthand way of accepting that evidence

R. v. W. (B.) (Feb. 2, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA 59172) 128 W.C.B. (2d) 2.

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