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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

' . - 21 -

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

:mel

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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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