Saturday, 29 January 2011

SBS: British Columbia: Judge clears Avtar Basi, accused of violently shaking baby

 CINDY E. HARNETT, January 28, 2011
  The Victoria Courthouse Photograph by: Debra Brash,
A man accused of violently shaking an 11-week old baby girl in frustration, causing permanent brain damage, was found not guilty in Victoria provincial court Friday.
Avtar Basi, 33, was charged with the aggravated assault of Baby E.B. in the Central Saanich foster home run by his girlfriend, Micheline Slader.
After the verdict, Basi left the courthouse fighting back tears of relief.
Basi was also clutching the hand of Slader, with whom he said he planned to adopt Baby E.B., now two. The baby is so profoundly handicapped that she will require a feeding tube and 24-hour care for the rest of her life.
Basi is the only person who will ever know what happened in the five minutes and eight seconds between the end of an unremarkable phone conversation with Slader about baby formula at 9:04 a.m., on Nov. 26, 2008, and 9:09, when he called to say Baby E.B. had stopped breathing.
"No one else was there. He is the only person who does know what happened," defence lawyer John Green said Friday. "The judge accepted his evidence."
Judge Adrian Brooks ruled the Crown had not proven beyond a reasonable doubt that the force Basi used on Baby E.B. was not done for the purpose of caring for the infant and that excessive force was used.
"While Mr. Basi obviously bears a heavy moral responsibility for what he has done to the life of this child, E.B., it is not established that his is a criminal responsibility under our law and I find him not guilty," Brooks said as he read his 37-page verdict.
Slader and Basi met in Nov. 2007. By September 2008, they lived together.
Slader is the biological mother of three school-age children, and at the time was a caregiver for a children aged three, one and five months — placed with her by the Ministry of Children and Family Development.
In October 2008, Baby E.B. arrived. She was the seventh child in the home. Basi and Slader considered her the "perfect baby" and talked of adopting her.
In court, Basi testified that, on the morning of the incident everything unfolded normally — until Baby E.B. began crying loudly and arching her back. She fell limp and unconscious. In a panicked reaction, he shook her three times. She was not breathing. He called Slader, then 911.
The judge heard expert medical testimony about the child's injuries and about a condition known as "breath holding," in which children cry forcefully only to get stuck at the point of exhalation and stop breathing, faint or pass out.
In determining whether excessive force was used, the judge took into account both the physical vulnerability of an infant and the life-and-death circumstances Basi said he was facing.
"I have concluded that although the severity of the injuries is an important factor, it is only one factor," Brooks said.
"I have found that E.B. behaved suddenly and uncharacteristically. She stopped breathing. The force applied by Mr. Basi was three motions of back and forth shaking.
"The purpose of that shaking motion was an attempt to relieve that life-threatening situation.
"When the shaking did not resuscitate E.B., Mr. Basi immediately sought assistance," Brooks said. "I am not persuaded beyond a reasonable doubt that the force used was excessive."
The judge rejected focusing on a snippet of conversation during an undercover police sting when, on June 12, 2008, Basi says "Yeah" to questions such as "This kid was pissing you off, right?"
Rather, Brooks looked at the day's conversations, including Basi saying "No, no, no, no" when asked if he was angry at the time of the shaking and explained it as "strictly panic."
The entirety of Basi's comments on June 12 were consistent with his testimony, Brooks said.
Basi, with a Grade 11 education and no first-aid training, was a man of few words but direct in his testimony, Brooks said.
"There was no air of deception in his manner," Brooks said. "His demeanour was of a witness doing his best to tell the truth.
Although Basi originally lied to his girlfriend and authorities about what had happened to the baby, Brooks said: "Basi's lying about having shaken E.B. does not cause me to reject his evidence given on the stand."
Basi sat pensively in the front row of courtroom 203 as he listened to the verdict being read aloud for about an hour. Slader sat a few rows back, tightly clenching the hand of a friend. When the judge concluded, Basi eyes welled with tears.
Defence lawyer John Green described his client's emotional reaction to the verdict as "relief," and said the case had been extremely "difficult" for all concerned.

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