 |
| John L. Hill |
Denim Henderson, then 25, was charged with second-degree murder. Jordan Brownell, 26, the child’s mother and Henderson’s girlfriend, was charged with manslaughter. Henderson pleaded not guilty to the charge in a trial that began Nov. 8, 2021. Jurors found Henderson not guilty of murder but guilty of manslaughter, aggravated assault and failing to provide the necessaries of life.
“What is absolutely clear … is that the jury rejected Mr. Henderson’s evidence that he did not do anything at any time to cause Kaleb harm,” Ontario Superior Court Justice Laura Bird said. “The jury concluded he committed an unlawful act — an assault that contributed significantly to [Kaleb’s] death.”
Justice Bird sentenced Henderson to nine years in prison for manslaughter and three years, to be served
Viacheslav Besputin: ISTOCKPHOTO.COM
Henderson claimed there was not enough evidence to connect him to the child’s death. He denied any wrongdoing.
The child’s mother testified to Henderson’s innocence. Henderson had moved in with the child’s mother and her other child, a four-and-a-half-year-old girl, two and a half months before the child’s death and a month after Brownell had separated from the child’s father, Mark McKay.
Some of the wounds, such as a broken right arm, broken right leg and a skull fracture, could have occurred within six weeks before the child’s death, or they could have been eight to nine months old. Maybe investigators should have considered the infant’s sister or Mark McKay as possible suspects.
The Crown noted that Kaleb was examined by a family doctor a month before his death and was in good health. There was no reasonable evidence to suspect the child’s mother or sister of causing harm. The Crown argued that the only plausible explanation was Henderson’s lack of experience as a caregiver and frustration in caring for the baby.
It was unclear from the jury’s verdict whether they found Henderson guilty of aggravated assault based on the recent qualifying injuries or both the recent and older qualifying injuries; the trial judge needed to make that factual determination when imposing the sentence. She concluded that “on several occasions prior to December 29, 2016, [Henderson] applied a significant amount of force to Kaleb that resulted in a fracture to his arm, his leg, his skull, three of his vertebrae, and many of his ribs.” Furthermore, she found that it would have been obvious to Henderson that he had hurt Kaleb and “[n]ot only did he not disclose to anyone that Kaleb was hurt, he failed to obtain any medical treatment for him.”
Henderson’s first appeal ground was that indictable offences were improperly joined to a murder charge, contrary to s. 589 of the Criminal Code. The Court of Appeal held the joinder was valid because: (1) the offences arose from the same transaction, and (2) Henderson had implicitly consented by not seeking severance at the judicial pretrial. Parliament amended s. 589 in 1991 to allow related offences, like robbery or sexual assault, to be tried with murder when committed in the same transaction. Cases such as R. v. Manasseri, 2016 ONCA 703 and R. v. Forcillo, 2018 ONCA 402 confirm that a single transaction can give rise to multiple charges.
Henderson further argued that the trial judge erred in considering both older and recent injuries as the basis for aggravated assault. The court noted that although the injuries were different, they were connected to the core issues of causation and identity. Because the pathologist could not determine the cause of death, the Crown relied on the totality of injuries to show that the death resulted from human action. Under Manasseri, “transaction” can include a series of linked acts, and including both sets of injuries supports the legislative goals of accurate fact-finding and efficiency.
Finally, Henderson claimed prejudice due to the lack of a jury warning regarding discreditable conduct evidence. Defence counsel, however, had strategically chosen not to request such a caution to avoid repetition of damaging testimony about Henderson’s prior behaviour.
Secondly, Henderson argued that he was prejudiced by not being warned about the use of discreditable conduct evidence, meaning it is impermissible for the jury to conclude that older injuries were likely caused by other conduct, such as yelling obscenities at his two-week-old biological son. Defence counsel chose not to request a discreditable conduct caution to prevent the judge from repeating Henderson’s previous damaging evidence.
Henderson’s final argument was that the trial judge made an error by allowing the aggravated assault charge to relate to either the older or recent injuries, creating ambiguity in the jury’s verdict and improperly leaving fact-finding to the judge at sentencing. The court rejected this, noting that defence counsel had agreed to the instructions during trial and never sought to restrict or sever the charge. Counsel’s strategy was to keep aggravated assault as a lesser culpability option and to support an alternative suspect theory. Any fact-finding by the trial judge at sentencing was a foreseeable consequence of these choices (R. v. Ferguson, 2008 SCC 6; R. v. Moreira, 2021 ONCA 507).
The court therefore dismissed both the conviction and sentence appeals.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.