However, the verdict was overturned by an appeals court
Transcript of However, the verdict was overturned by an appeals court
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No. 696/90 and 697/90
COURT OF APPEAL FOR ONTARIO
BROOKE, CATZMAN and ARBOUR JJ.A.
BETWEE N . ) R . J. Carja~r 1 Q.C. . ) and David Harri§ for
HER MAJESTY THE QUEEN ) Sonia Atikian )
Respondent ) Austin Coo9er 1 Q.C. ) and Steven ~kurka
- and - ) for Khachadour Atikian )
SONIA ATIKIAN and KHACHADOUR ) Ri~k Libman for the ATIKIAN ) respondent Crown
) Appellants ) Heard: December 13, 14,
) 17, 1990 )
BY TBE COURT:
The appellants appeal from their conviction on a charge
that they:
during the month of September in the year ·1987, at the Municipality of Metropolitan Toronto in the Judicial District of York, did being parents of Lorie Atikian a child under the age of 16 years, did fail without lawful excuse to provide the Pecessities of life to Lorie Atikian, thereby causing the death of the said Lorie Atikian, contrary to the Criminal Code.
There is also an appeal from the Bentences of two years
less one day imposed by the trial judge on each of them.
The charge arose out of the death of the infant
daughter of the appellants. The child was seventeen months old
when she died. At the opening of the trial, defence counsel
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admitted on behalf of their clients that the child was suffering
from malnutrition and bronchial pneumonia when she died. Her
condition at the time of death was evidenced in three photographs
taken upon the autopsy which were marked as exhibits and in the
post-mortem report which was marked as an exhibit. They further
admitted that the appellants were the child's father and mother
respectively and both had a legal duty to provide the necessities
of life to the child.
In this court, counsel concedes that there was no issue
at trial that there had in fact been a failure to provide the
necessaries of life by both accused and this failure endangered . the life of the child. The trial judge so ins~ructed the jury.
The defence was that the appellants had an honest
belief that they were providing the child with necessaries. The
only issue then was whether or not the Crown had proved beyond a
reasonable doubt that they did not have this honest belief or
alternatively that there was a reasonable doubt on the issue.
The Crown's case depended on the evidence of a medical
doctor who attended the child, a pathologist, the photographs
referred to, and to some extent, the evidence of the ap.pellants,
to prove the visible process of destruction and agony of a
healthy child as she succumbed and died of starvation. Put
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shortly, it was the Crown's position that it was inconceivable
that the appellants, witnessing these things, could have believed
that they were providing the child with necessaries.
The appellants gave evidence that they believed in the
work and advice of a herbalist and that they faithfully followed
his advice and directions to the end. They called evidence in
support of their defence of others who, like them, believed in
this man and his advice and followed it into the most extreme
circumstances. They called a number of persons who gave them
good character and testified that they were good parents.
The appellants married in 1972. Their first child was
born in 1973 in Beirut. The family moved to Canada in 1976 and
their son was born here in 1977.
middle class Canadian family.
They were a hard working,
In the spring of 1979, Mrs. Atikian, who had suffered
for more than a year from a disabling problem in her knee which
caused her to limp badly, being dismayed with the inability to
find help from medical doctors and rejecting suggestions of
surgery, accepted the advice of a friend to consult a herbalist
who healed with natural remedies. His name was Gerhard
Hanswille, and he carried on his business from a store in the
community. She accepted the advice and the treatment of this
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man. In a short time, she was healed. Her visits to his
premises interested her because of the number of people there
seeking his advice and the herbs that he offered to them. She
became interested in his skills, attended to hear his lectures
and ultimately enroled in classes that he organized and
conducted. While she did not change the routine of her children
with respect to their medical requirements, when she discovered
that she was pregnant, she consulted the herbalist. He persuaded
her that if she would follow his advice, she would have a
heal thy, strong baby. She took the herbalist's advice. Al though
she remained under the care of an obstetrician and gave birth in
a hospital, she preferred the advice of the herbalist and
rejected the doctor's medical recommendation ana diagnosis by way
of ultra sound. She followed the herbalist's advice during her
pregnancy and to her great joy, the child was born, as the
herbalist had predicted, healthy and strong.
As Mrs. Atikian had done with respect to her own needs,
she now did with respect to her baby. After a few months, she
refused the services of a paediatrician, having declined to
follow his advice that the child should be immunized. She sought
and accepted the advice of the herbalist as to the care and the
needs of the child. For ~leven months, while she breast-fed her
baby, it thrived. But shortly after that time, the baby
developed a rash. Throughout the period in the indictment, while
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she fed the child and cared for it as the herbalist directed, the
child withered and finally died.
During this time, and as the baby's condition visibly
changed, she and her husband were persuaded by the herbalist that
the changes were part of a healing process and they believed that
he would restore her to good health. They also believed his
advice that medical attention would "be like putting a gun to her
head".
grounds.
them.
In support of the appeal, counsel raised a number of
We think it is necessary to deal with only some of
Evidence in reply
The appellants submit that the trial judge erred in
permitting the Crown to lead the evidence of Matilde Atikian, the
sixteen year old daughter of the appellants, in reply. They rely
on two grounds. First, that the Crown was permitted ~o split the
case leading evidence which went to the heart of the case and
which should have been led in chief. And secondly, that the
evidence which the Crown sought to rely on were things said by
Matilde in what was contended was a prior inconsistent statement
which the witness did not adopt and so the jury was wrongly
permitted to use it as proof of the facts stated.
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The issue comes up in this way. The knowledge that the
child was in need of medical care, that she was not receiving it,
went to an element in the Crown's case -- mens~- In addition,
it was clear to the Crown from the outset that the defence in the
case was that the appellants honestly believed that they were
providing necessaries.
The police interviewed Matilde Atikian on the evening
her sister died. It is alleged that she told them that her
father did not believe in herbalists and that he was constantly
urging her mother to take the baby to a doctor or the hospital.
In our respectful opinion, this was important and perhaps the .
most important direct evidence going to the heart of the Crown's
case. Its significance is perhaps reflected in the statement in
the opening paragraph of the Crown's fact um that at trial, "Crown
counsel put forward the theory that the deceased's parents
were cognizant of the fact that they were failing to provide her
with the necessaries of life. The Crown maintained that Mr.
Atikian was continually urging Mrs. Atikian to take Lorie to a
medical doctor."
Nowhere in the cross-examination of either of the
appellants were they confronted with their daughter's alleged
statement or given an opportunity to refute this evidence which,
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if believed and unexplained, was of such significance on their
trial.
Crown counsel in this court sought to justify the
introduction of the evidence by way of reply as evidence
admissible pursuant to s. 11 of the Canada Evidence Act. In our
opinion, assuming without deciding that the evidence might be
used for this purpose, the conditions specified in the section
were not met and it could not be admitted on that ground.
Put at its highest, the trial judge seems to have
accepted this evidence as admissible simply because it was sought
to contradict the appellants' evidence. If it .cpntradicted their
evidence, they were entitled to have an opportunity to respond to
it. This opportunity was not available to them. In the
circumstances, it was quite unfair to permit the Crown to lead it
in reply and so split its case.
The witness' prior inconsistent statement
Matilde Atikian was sworn as a witness. She had been
subpoenaed to attend at the trial the night before her appearance
and was sixteen years old at the time of her appearance. After
a voir dire, the trial judge determined that she was a hostile
witness and the Crown could proceed cross-examining her.
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The Crown placed before her a copy of a "will say"
statement made by a police officer which contained what he would
say she said to him when she was interviewed on the night of her
sister's death. The statement of the officer, which contained
several questions and answers said to have been made by the
witness to the police officer, was read to the witness by Crown
counsel. In answer to his question, she said that the questions
had been asked of her and that she made the answers and confirmed
that the questions and answers were accurately read to her by
Crown counsel.
In cross-examination she said with respect to the
questions and answers: . . Q. Do you feel that the shock and emotional situation affected you in what you said?
A. Definitely because I don't even -- I don't even recall the questions. I mean now that I reread them, it makes -- it makes sense to me that these were the questions asked. I cannot say -- I can't say I remember answering these specific questions because my mind was not on the question.
Nowhere in her evidence was she asked whether or not
the answers to all of the questions were true. Nowhere in her
evidence was she asked specifically whether or not the ~nswers to
the questions which the Crown was specifically concerned about
were true.
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We agree with the submission of the appellants that
there was really no evidence upon which the trial judge could
leave to the jury the question of whether or not the witness had
adopted the statement, particularly the two questions and answers
which the Crown sought to put before the jury as proof of the
truth of the facts stated therein.
The trial judge charged the jury with respect to
statement in question:
If, and insofar as the witness here, Matilde Atikian, at trial adopts what she said to Constable Leahy on September 25, 1987, that part of what she said on the earlier occasion is brought into this trial, and becomes evidence before you here and now. · ·
If the witness does not adopt what she is alleged to have said on an earlier occasion, then what was allegedly said on the earlier occasion may be used by you, only, to test the witness's believability, the witness's credibility here and now.
Even if it could be said that the trial judge could
leave the issue of the adoption of this statement to the jury, in
our view, the trial judge's instruction in the circumstances of
this case were not sufficient. The jury had to understand that
before they could find that the witness had adopted the statement
and that they could use what was said in the statement· as proof
of the truth of the facts stated in it, they had to be satisfied
that she acknowledged that she made the statement and that it was
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true, or, of course, that she made part of the statement and that
that part of it was true. And so, she adopted it as part of her
testimony under oath at the trial.
There was no acceptance by the witness in her evidence
of what she had said as being true. None was referred to by the
trial judge. He should have told the jury the fact that she made
answers to the questions asked her did not constitute adoption
and that, in any event, there was a question whether she really
remembered what had been said on the previous occasion. Because
of the importance of the evidence, we think the failure of the
trial judge to fully charge the jury on adoption was highly ~ .
prejudicial to the defence. When examining the theory of the
defence, after discussing evidence of the appellants, the trial
judge said to them:
Or do you believe what Matilde is alleged to have said to P.C. Leahy, which was referred to you this morning, and I read to you and I will not repeat. What is the expression? "Out of the mouth of babes" How does it go?
We agree with the appellants' submission and, in the
circumstances, we think there was non-direction amounting to
misdirection and it was prejudicial to the defence.
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Review of the position of the defence
The appellants contend that the trial judge failed to
adequately review the position of the defence and to relate to
the jury the evidence relevant to that position. The duty of the
trial judge in that respect is to review the substantial parts of
the evidence so that the jury may appreciate the value and effect
of that evidence insofar as it puts forth the factual foundations
for the defence's contentions: Azoulay v. The Queen (1952), 104
C.C.C. 97 CS.C.C.).
The trial judge brought home to the jury that the case
against both appellants rested on one fundamental issue:
Each accused submits to you that the evidence taken as a whole establishes an honest mistaken belief on his or her part, or at worst, raises a reasonable doubt that each one had an honest mistaken belief that he or she was providing the necessaries of life to Lorie when she died on September 25th, 1987.
As jurors, you may be saying to yourselves: how do we know what an accused person meant, or intended, or believed, or thought some two and three-quarter years ago? We can't get inside his or her head to find out. What do we do? You are entitled to use the guide that I mentioned to you earlier. Generally, it is a reasonable inference that a sane and sober man or woman intends the natural consequences of his or her acts. Therefore, you, as jurors, must draw inferences, draw conclusions, from all of: the surrounding circumstances.
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The trial judge did not clarify how the jury could, in
this case, draw a useful inference from the conduct of the
appellants. Moreover, the trial judge failed to direct the
attention of the jury to the direct and circumstantial evidence
introduced by the defence to support the contention of an honest
mistake. The direct evidence was the testimony of each
appellant which, of course, the jury was free to reject. The
circumstantial evidence would have been more difficult for the
jury to appreciate without some clear direction from the trial
judge as to its value and effect.
The alleged honest belief of the appellants was based
on their misplaced trust in the herbalist Hans~ille. That trust
had to be blind to the results that it was gradually producing on
Lorie's physical condition. Hanswille's evidence had been, in
part, that he did not provide advice but merely informed his
students of his knowledge and beliefs which they could put into
practice if they chose. The evidence of Magaly Bianchini and of
Lelach Cohen was put forward by the defence to support their
claim of an honest belief based on Hanswille's influence.
Bianchini was a thirty-four year old, well educated
woman who had accompanied her father to a consul tat ion with .. Banswille for treatment of a malignant tumour in his rectum. At
Banswille's suggestion, her father abandoned his radiation
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treatments and his impending surgery and substituted a diet of
raw fruit and vegetables along with olive oil and lemon juice and
various herbs. Hanswille had only negative things to say about
doctors and was very convincing. Mr Bianchini was continually
reassured a.bout his weight loss and remained under Hanswille's
exclusive supervision until his death. He weighed 165 pounds
when he first went to see Hanswille and when he died, he weighed
70 or 80 pounds and looked like a skeleton. Hanswille talked
Magaly Bianchini out of taking her father to the hospital in the
last few weeks of his life when she suggested that he should at
least get some morphine since gangrene had developed in his
wound. Hanswille said that if she did he would die. . .
Lelach Cohen was a 20 year old college student who was
a diabetic and had been on insulin for fourteen years. She took
48 uni ts of insulin a day when she began to see Hanswille. Under
his supervision, she ceased to see medical doctors, went on a no
milk, no meat diet and reduced her insulin intake to 8 units a
day. Over the six-month period that she saw him, her weight went
from 128 pounds to 96 pounds; he assured her that the weight lost
confirmed that the poisons were leaving her body.
eventually hospitalized.
She was
The trial judge referred to the evidence of Bianchini
and Cohen twice very briefly in his charge. After his reference
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to the testimony of the appellants in which they both stated that
they believed Hanswille when he said that to take Lorie to a
hospital would be like putting a gun to her head and pulling the
trigger, the trial judge added:
They say to you: if you don't believe us, look, for example, what happened to Mr Bianchini and Miss Cohen when they got involved with that herbalist.
And a little later, the trial judge added:
Ladies and Gentlemen, this is not a Royal Commission inquiring into the practice of herbalists. Gerhard Hanswille is not an accused before this court. In the jury room, you are free to vent your spleen all you want about Gerhard Hanswille and people of his ilk. You may call him a "snake bite ointment pedlar". You may say that P. T. Barnum, the circus owner, was right when he said: "There is a sucker born every minute". You and I and every one else that heard Ms. Bianchini and Miss Cohen have the greatest of sympathies for the tragedies they have endured.
In our respectful view, this was insufficient to assist
the jury in appreciating the value and effect of that evidence.
The evidence of good character called by each accused
was reviewed in detail by the trial judge. However, here again
its true significance and value were not adequately c~nveyed to
the jury. The character evidence was essentially evidence of
good parenting, absence of animus or neglect towards all three
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children of the appellants. That evidence was relevant to the
assertion by the appellants that they honestly believed that they
were providing Lorie with the necessaries of life. After his
detailed review of that evidence, the trial judge merely
explained to the jury that they could use that evidence either to
support the credibility of an accused person as a witness or to
draw an inference that he or she was unlikely to have committed
the crime charged. Early in his charge, and quite rightly so,
the trial judge had pointed out to the jury that there was little
doubt that the appellants had failed to provide the necessaries
of life to their daughter. The trial judge did not explain to
the jury that the character evidence related to the issue of .. whether they had done so knowingly. In the circumstances, a
clear direction to that effect was required to assist the jury in
appreciating the true significance of that evidence.
The failure of the trial judge to relate, for the
benefit of the jury, the independent evidence which, if accepted,
would support a finding of honest belief, was aggravated by the
strong expression of his own opinion as to the defence of honest
belief as asserted by the appellants themselves in their
testimony:
Perhaps in your considerations and your . deliberations, you should consider the geographical location as to where all these matters took place that we heard about since the trial started on May 8th of this year. It wasn't upon some frozen tundra in the
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Arctic, nor was it in the remote sand dunes of the Sahara Desert. It all took place in the year 1987, and in the heart of Metropolitan Toronto, with its 2.2 million people, and took place at 490 Wilson Avenue. This wasn't a crib death where at midnight the child is alive and well, and at 2: 00 a.m. the baby is found to be dead. You saw Mrs. Atikian. Did she impress you as a bright, articulate woman? Did she have any problem communicating? Were the two accused lacking friends, people to help them, to rely upon? You saw 16 character witnesses who came forward on their behalf. Did the two accused, before the court, know about medical doctors and hospitals? She told you about gynaecologists that she had seen; doctors seen after she was involved in the car accident, going to doctors for colds and so forth.
Mrs. Atikian testified that she breast fed Lorie until the 10th or the 11th month. It seemed after that things were all ~ownhill for Lorie. Lorie did not get any milk, according to the evidence, and it, therefore, seems the protein and calcium deprivation started at that point. Do you believe Mrs. Atikian was ignorant of the fact that no milk meant that that source of protein and the source of calcium for that child had been cut off? She was a woman who had raised two heal thy children, both of whom had been immunized, both of whom attended a paediatrician on a regular basis and had thrived under the doctor's care.
Even though the trial judge stated on many occasions
that the position of the defence was that the appellants honestly
believed that they were providing their child with the
necessaries of life, in our view he failed to adequately direct
the jury's attention to the evidence which supported that
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contention. In the result, we think that the position of the
defence was not fairly put to the jury.
Honest Belief and Reasonableness
The sole issue at trial -- which the trial judge
described to the jury as "the only viable question for you to
consider" -- was whether the Crown had proved beyond a reasonable
doubt that the appellants did not have an honest belief that they
were in fact providing their daughter with the necessaries of
life. The appellants submitted that, although the trial judge
correctly put the issue of honest belief to the jury on a number
of occasions in his charge, he gave other instructions which were
erroneous in law and which so detracted ,from the correct
instructions that the defence of honest belief was for all
practical purposes withdrawn from the jury.
In his charge, the trial judge, who was justly er i tic al
of the conduct of Gerhard Hanswille, told the jury they were at
liberty to "vent your spleen all you want about Gerhard Banswille
and people of his ilk", and then followed with these words:
However, when you get all through in the jury room telling each other what you think of Gerhard Hanswille, please take another hard look at s. 215 of the Criminal Code.
Does it say: if a herbalist, or a snake with some cult, some that the parent no
parent goes to a .· charmer, or takes up off beat phi losophy, longer has the duty
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imposed upon him or her under s. 215(1) of the Criminal Code?
No, it doesn't say that.
Does s. 215(1) of the Criminal Code say: if you fail to provide the necessaries of life, as required by the section, it becomes a lawful excuse if you say: "Sorry"?
No, it doesn't say that.
Does s. 215 ( 1) of the Criminal Code say: only non-gullible parents have a duty to provide necessaries?
No, it doesn't say that.
S. 215(1) of the Criminal Code doesn't allow for any "buck passing".
S. 215(1) of the Criminal Code does not let parents parcel out their duties to other people. There is no provision for parents to "play musical chairs" with the duty, imposed to provide the necessaries of life.
If a person pulls a thick sack over his or her head, surely that person cannot then be heard to blame the bag maker for his or her inability to see.
With respect, this instruction, with its colourful but
pejorative references to "snake charmer", "cult", "off beat
philosophy", "non-gullible parents", "buck passing" and "musical
chairs", denigrated the appellants' sole defence and, by
intimating that gullibility was no answer to a charge under sec.
215, deflected the jury's attention from its proper focus,
namely, consideration of the critical question whether the
appellants had an honest belief that, in following Hanswille's
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advice, they were providing their daughter with the necessaries
of life.
The effect of this instruction was exacerbated by the
contents of a booklet which the trial judge prepared following
the addresses to the jury by counsel for the appellants and for
the Crown and prior to his charge to the jury, and which he gave
each juror for use during the jury's deliberations. The context
in which this booklet came into existence in significant. Counsel
for Mrs. Atikian, in his address to the jury, had said:
I submit to you that it must now be crystal clear that Sonia Atikian honestly believed in what she was doing.
Was it a reasonable belief?
You will want to consider this in deciding whether or not her belief was an honest one.
In a vacuum, no, it was clearly not reasonable.
In the light of the circumstances, of her background, her history, her exposure to Mr. Hanswille and how it affected her, her acceptance of him over many years as a trusted, knowledgeable, caring person, much more so.
But, ultimately the issue is: was her belief an honest one?
The addresses to the jury· were made on a Friday. The t~ial judge
charged the jury on the following Tuesday. In the interim, he
prepared the booklet referred to, which contained copies of the
·.
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indictment, the formal admissions of fact made by the appellants,
excerpts from sec. 215 of the Criminal Code, passages from
decided cases on the subjects of "necessaries of life", "lawful
excuse" and "honest mistake", and the possible verdicts the jury
might return in respect of each appellant. Over the objection of
defence counsel, the trial judge included in the passages on the
subject of "honest mistake" the following extract from the
reasons for judgment of Dickson J. in Pappajohn v. The Queen
(1980), 52 C.C.C. (2d) 481, at pages 499-500:
the accused's statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although "rea'Sonable grounds" is not a precondition to the availability of a plea of honest belief ... , those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused's belief is only evidence for, or against, the view that the belief was actually held ...
We are not unmindful of the fact that, in the last
sentence of this extract and elsewhere in the charge, the trial
judge told the jury to consider the question of honest belief
irrespective of whether it was reasonable. Nor are we unmindful
of the fact that the trial judge instructed the jury in his
charge that they were free to reject any view he ··expressed
regarding the facts or regarding credibility. But this passage
relating ~o the manner in which juries consider the relationship
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between reasonableness and honest belief - which the trial judge
twice read as part of his charge and incorporated in the booklet
which he left with the jury during its deliberations - thereby
assumed the status of an instruction of law which, the jury had
been told, it was obliged to take from him and to follow. That
status was both inappropriate and destructive of the theory of
the defence. It was inappropriate because, far from being
intended as a proposition of law, this passage from the reasons
for judgment of Dickson J. was intended to be no more than his
assessment of the measure of realism in the ongoing debate in
judicial and academic circles as to whether mistake must be
reasonable: see Pappajohn, at p. 499. It was destructive of the .
theory of the defence because, in the context of the position
taken by counsel for Mrs. Atikian in his address to the jury and
the references in the charge to the unreasonableness of the
suggested mistake of fact, it effectively foreordained, adversely
to the appellants, the jury's determination of the issue of
honest belief.
Unreasonable Verdict
Counsel for the appellants submitted that the jury
finding that they did not honestly believe they were providing
the necessaries of life for their daughter was unreasonable and
cannot be supported by the evidence. It was submitted that this
was particularly true in respect of Mr. Atikian, once one
' . •
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eliminates the statement, said to have been given by Matilde
Atikian to Constable Leahy the night that Lorie died, which was
the subject of the Crown's reply evidence discussed above.
We do not agree. In the light of the testimony of the
doctors and the emergency personnel and the photographs of Lorie
Atikian's condition at the time of her death, as well as the
medical evidence with respect to the development of that
condition and the symptoms which would have been apparent during
its progressive evolution, we are unable to say that the only
rational conclusion which the jury could have reached was that
the appellants honestly believed that they were fulfilling their
duty to provide the necessaries of life to Lorie. In our view, it
cannot be said that, upon an assessment of all of the evidence,
the verdict was one that a properly instructed jury, acting
judicially, could not reasonably have rendered.
For these reasons, we think the appeal must succeed.
The appeal is allowed, the convictions set aside and a new trial
is directed.
~w~~
~· /'/~~-:.J~-
".
Released: December 19; 1990
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No. 696/90 and 697/9C COURT OF APPEAL FOR ONTARIO
BROOKE, CATZMAN and ARBOUR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
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SONIA ATIKIAN and KHACHADOUR ATIKIAN
Appellants
JUDGMENT
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