Court of Appeal for Ontario

Date: 2001-06-18 Docket: C32144 and C33697

Between:

Her Majesty the Queen (Respondent/Appellant)

• and -

Larry William Seth (Appellant/Respondent)

Before: Charron, Feldman and MacPherson JJ.A.

Counsel: Joseph A. Neuberger and Michael Shapray for the appellant/respondent Larry William Seth Eric H. Siebenmorgen for the respondent/appellant Her Majesty the Queen

Heard: February 7, 2001

On appeal from conviction for manslaughter by a jury before Justice N. Borkovich dated April 29, 1999 and on appeal by the Crown from a directed verdict of acquittal of first degree murder on April 26, 1999.

FELDMAN J.A.:

1Christian Bill, age 4 months, died in his crib on May 10, 1996. The cause of death was asphyxia. Mr. Seth (the appellant) lived with Christian and his 17 year old mother. The appellant was convicted of manslaughter of Christian. He appeals his conviction and sentence of 15 years imprisonment. The chief ground of appeal against conviction is unreasonable verdict. A second ground relates to the trial judge's failure to provide the jury with the assistance they requested during the course of their deliberations.

2The appellant was originally charged with first degree murder and sexual assault causing bodily harm. The first degree murder charge was based on the theory that the appellant sexually assaulted the baby by putting his penis into the baby’s mouth or ejaculating into the baby’s mouth, thereby causing death by asphyxiation, or smothering the baby with a pillow during or immediately after sexually assaulting him, thereby causing death by asphyxiation. The trial judge directed a verdict of acquittal on the first degree murder charge and left with the jury the offence of manslaughter during the commission of a sexual assault, and the included offence of sexual assault causing bodily harm. The Crown appeals the directed verdict ruling, and seeks a retrial on the first degree murder charge, but only in the event that the appellant’s appeal is allowed and a new trial is ordered on the manslaughter charge. The Crown is otherwise content with the manslaughter verdict and a dismissal of the appellant’s appeal.

3The new indictment against the appellant prepared by the Crown following the directed verdict on first degree murder, upon which the appellant was convicted of manslaughter, reads as follows:

Larry William Seth stands charged: (1) That he on or about the 10^th day of May, 1996, at the City of Hamilton, in the Regional Municipality of Hamilton-Wentworth unlawfully did kill Christian Bill during the commission of a sexual assault and thereby did commit manslaughter contrary to Section 236(b) of the Criminal Code of Canada.

4The theory of the Crown on the manslaughter trial was that the appellant caused the infant to die by asphyxiation by putting his penis into the baby’s mouth. The appellant’s position on the appeal is that the verdict is unreasonable primarily because the evidence does not establish such a sexual assault, an essential element of the offence as charged.

FACTS

5The narrative of the events of the evening of May 9 and the morning of May 10 was the information given at trial by Nicole Bill, Christian’s mother. The appellant did not testify. However, the information that he provided to the ambulance personnel and the police on the scene was led in evidence as part of the Crown's case and was consistent with Ms. Bill's account.

6Ms. Bill was 16 years old when Christian was born on January 10, 1996. Christian’s father was Michael Marshall, with whom Ms. Bill had had a relationship that ended several months before the birth. She met the appellant in December, 1995 before giving birth to Christian. Ms. Bill and Christian began living with the appellant in March, 1996 in an apartment. The appellant’s friend, Damien Rice, lived in the attic. Mr. Rice spent the night of May 9 at his girlfriend’s residence.

7On May 9 Christian woke up at around 5:00 a.m. Ms. Bill changed him and gave him a bottle then laid him back down. He was up for some time in the morning. Ms. Bill lay with him on the pull-out couch in the living room. He went back to sleep in his crib around 11:00 a.m. and awoke at 1:00 p.m. or 2:00 p.m. Both the appellant and Mr. Rice came home about that time. They had an argument, then left. Neither man did anything with Christian at that time. Christian was either asleep or on the couch.

8A friend, Stacey Boyer, then visited the apartment at around 2:00 or 3:00 in the afternoon and stayed until 4:00 or 5:00. Ms. Bill fed Christian a jar of baby food and then breast fed him because he was cranky most of the day. Ms. Boyer confirmed that Christian was cranky and that he was in and out of the Jolly Jumper apparatus a fair amount.

9The appellant arrived home around 6:00 p.m. and began preparing dinner as he had invited a friend, Jeffrey Lyon, for dinner. Mr. Lyon spent an hour with them that evening. He said everyone was cheerful. During that period, Ms. Bill said that the appellant changed the baby and gave him another jar of baby food. The baby was in the Jolly Jumper during that period and later. The appellant also had the baby with him on the couch. At around 10:00 p.m. he fed Christian another jar of baby food. He then got the baby ready for bed. He took a radio into Christian’s room and danced around with him. Just after 10:00 p.m. Ms. Bill gave the baby a kiss and went into the shower for forty-five minutes to an hour. At that time she said that Christian seemed fine.

10Ms. Bill did not check on Christian after her shower because he was quiet. Around midnight or 12:30 a.m. Ms. Bill and the appellant were in the living room, which was next to the baby’s bedroom. They ordered an x-rated movie. During the movie, Christian began to fuss. Ms. Bill attempted to go in to check on him but the appellant insisted that she lie down and relax because she was not feeling well that day. The appellant went and checked on the baby and reported that he was just being fussy, he did not want his bottle and kept spitting it out. There was no evidence of what was in this bottle.

11The appellant went to check on Christian a second time when he cried, again telling Ms. Bill to relax. He went in a third time with a bottle of water or sugar-water. This was about 2:00 or 2:30 a.m. after the appellant and Ms. Bill had had intercourse. Ms. Bill did not know if the appellant put his clothes on before preparing and taking in the bottle. She said that as far as she knew, the appellant usually rinsed off his hands before preparing a bottle for the baby.

12Ms. Bill said that Christian carried on for an hour or two and that the appellant went to him about four times for about five or ten minutes each time. After that the baby quieted down for a while, then started up again, then quieted down for the rest of the night.

13Ms. Bill testified that after the movie was over and she and the appellant had sex, they went to sleep at about 3:00 a.m. In cross-examination, she agreed that she had told an officer at the time that they also had sex before her shower and around midnight. She woke up about three times during the night to change position, but did not hear the baby until around 6:00 a.m. when she heard him laughing and playing. Ms. Bill was asked whether when she woke during the night she noticed the appellant there. She answered, “mostly yes”, and that he slept beside her.

14After waking at 6:00 a.m., she fell back to sleep until 8:00 or 8:30 when the appellant got up to go to court for 9:00. She observed the appellant get ready, go to the kitchen and eat some fruit, then go into Christian’s room to check on him. She did not know how long he was in the room but she saw him run out with something, which appeared to be the baby’s pillow, and take it into the bedroom, after which he came into the living room where she was on the pull-out couch. He told her that he had found the pillow they kept in Christian’s room over the baby’s face, but the baby was fine and still breathing. She then dozed back to sleep.

15She woke up at about 9:00 a.m. and went into the bathroom then into the baby’s room. She determined that he was sleeping but appeared to be alive; he was breathing, he was warm and his eyes were moving. In cross-examination, she confirmed that she thoroughly checked the baby at 9:00 a.m., by feeling his face, feeling him breathe, putting her hand on his chest and feeling it go up and down and observing his eyes moving beneath the closed lids. Her habit was to check on him thoroughly. She did not see any foam at that time as she did later at noon. She did not hear any sounds from him. She let him sleep and she went back to sleep.

16She awoke at 10:00 a.m. when the appellant came in. He had bought a bike and she went downstairs with him for five minutes to look at it. She then went back upstairs to get some tools to adjust the seat on the bike and brought them down. She was uncertain whether the appellant came upstairs then. While she was upstairs she did not check on the baby and did not hear him. She was downstairs for about ten minutes at that time. The appellant was talking about getting a bike seat for the baby so they would not have to take the stroller. As she came upstairs at about 10:30 a.m., the phone rang and she answered it and talked to Stacey Boyer for about 15 minutes. Stacey Boyer said that Ms. Bill sounded happy and cheerful during their conversation and that they talked about taking their children out together to the park that afternoon.

17The appellant then came upstairs and they had sex again. After she and the appellant had sex, the appellant performed oral sex on her. Ms. Bill said that it was not that unusual that the baby would sleep in and she therefore believed that he was still sleeping.

18When she realized that it was near noon, she became scared because Christian had not yet woken up. She then went in to check on him. At the same time the appellant began to disassemble the VCR to return it to Stacey Boyer who had asked for it to be returned. He did not wash himself. The appellant had not been in the baby’s room since Ms. Bill had checked on him at 9:00 a.m.

19Ms. Bill found the baby with white foamy material coming out from his nose and mouth. He was on his back with one arm beside him and one up, his hands were in fists, and he was on top of his blankets. His bottle was in the crib. He did not appear to be breathing and he was cold.

20She called the appellant. The appellant came in, wearing only a t-shirt, picked up the baby with his face against his chest, then took him into the living room and tried to resuscitate him by putting his mouth over Christian’s mouth and nose and breathing.

21The appellant also asked Ms. Bill to get the baby’s inhalers which Christian had as a result of a diagnosis by his doctor of asthma at age two months. She could only find one inhaler, she panicked and the appellant told her to call 911. She called 911 and the operator kept her on the phone until the ambulance and police arrived. She told the 911 operator that she had last seen the baby at 9:00 a.m. and that he was fine at that time. While she spoke to the operator, the appellant had moved the baby into the kitchen, laid him on the table and was still trying to resuscitate him by giving him mouth to mouth respiration and pushing on his chest. When the emergency personnel arrived, the baby was taken in the ambulance right away and the appellant and Ms. Bill were told to wait at home.

22Ms. Bill responded to Crown counsel when asked, that she did not put a pillow over the baby’s head or hurt his rectum, penis or scrotum.

23P.C. O’Keefe was one of the police officers who arrived in response to the 911 call. He observed the appellant giving artificial respiration to the baby. The officer confirmed that both the appellant and Ms. Bill were upset when he arrived. After the baby was taken away in the ambulance, the officer interviewed the appellant and Ms. Bill. The appellant told the officer that when he checked on the baby around 8:30 a.m., the pillow was over his face, he removed it and felt the baby breathing by putting his finger under his nose. The appellant brought the police the pillow from another room.

24P.C. Eldridge was with P.C. O’Keefe. She also observed the appellant giving artificial respiration to the baby. The appellant was wearing a black t-shirt and jeans. She confirmed the same content of the conversation with the appellant and Ms. Bill after the baby was taken way. She said that they answered the questions directly and told what happened. The appellant said that when they found the baby he removed some mucous from the baby’s mouth and administered the puffer, but nothing happened, so he told Ms. Bill to call 911. He first thought that he heard the baby breathe and he saw the chest exhale, then he put his cheek to the baby’s head “but there was nothing”. He also volunteered that he had taken a feather pillow from over the baby’s face but that the baby was still breathing then. With respect to feeding, he said that the night before, the baby had had a bottle of water, a bottle of milk and some applesauce.

25Lydia Amos was one of the paramedics who arrived in the ambulance. Ms. Amos had 18 years experience as a paramedic as well as initial training and continuing upgrade courses. She gave evidence about suctioning the baby. She found foreign matter in the baby’s mouth which she assumed was formula. She suctioned the baby’s mouth out and discarded all the suctioned material and the tubing used to extract it. She testified that if a person does CPR incorrectly, the contents of the person’s mouth can end up in the baby’s stomach.

26Dr. Michelle Barton was Christian’s family physician. She last saw him on March 21. He had had a cough for about a week. She said that at the time she felt that a future diagnosis of asthma was possible, but the illness was more likely viral. She prescribed two inhaled medications or puffers for the baby on March 21.

27Several medical witnesses who examined the baby at the hospital gave evidence. Denise Turcotte was a registered nurse who worked in the emergency room on May 10 when the baby was brought in. One of the things she did was take the baby’s temperature with a rectal probe. She described undoing the baby’s diaper and noting some soft stool there. She gently put the probe in for a few seconds then removed it. She did not have a clear view of the rectum. She denied doing any injury to the rectum, but acknowledged that she did not see the rectum after doing the probe.

28The forensic evidence was given by three witnesses, Keith Kelder, a forensic biologist from the Centre of Forensic Sciences in Toronto, Pamela Newall, the section head of the biology section at the Centre and an expert on DNA, and Dr. Chitra Rao, a forensic pathologist and head of the forensic unit at Hamilton General Hospital.

29Keith Kelder was qualified in this case to testify as an expert and give opinion evidence with respect to the examination and analysis of blood, other bodily fluids and tissue. He examined various items supplied to him by the police in this case. He examined these items looking for spermatozoa.

30He found two sperm on the nasal swab taken from the baby’s right nostril. He examined two samples of the stomach contents and found one sperm that he could identify positively, three that were suggestive and four possibilities, for a maximum total of eight, minimum of one. He also said that sperm could be “hiding” behind food particles. He also found what he described as “very, very few” sperm on the baby’s sleeper, two or three on one location and three definite ones at another location. He found sperm, again very few in number, three definite and as many as six, on the nipple of the baby bottle found in the crib.

31On the pillow from the baby’s room, Mr. Kelder was looking for semen and saliva mixed together, and in particular, the appellant’s semen and the baby’s saliva, because of the allegations in this case. He located spermatozoa in one location in larger numbers than on the previously described items. He also found saliva on the pillow, but no saliva and semen together.

32Mr. Kelder did not find semen on the following items from the baby which were tested: the anal swab; the oral swab; oral tubing; and, the left nostril tubing. He also did not find semen on the following other items: four blankets from the crib; a comforter from a mattress on the floor of the baby’s room; a piece of carpet; and, a second baby bottle from the baby’s room.

33Mr. Kelder also tested other items for saliva. One item was the fly area of the appellant’s jeans. The test was positive for saliva both on the inside and outside of the fly area. There was also a spot where he found both saliva and semen. On the appellant’s t-shirt, Mr. Kelder found semen and saliva spots separately and semen together with saliva.

34Mr. Kelder was then asked about how sperm can get to be in various places. First he was asked about stomach contents. He said sperm can get there in two ways: first by sexual transfer either by ejaculation in the mouth or by insertion of the penis after some prior sexual act where a quantity of semen remains on the penis. The other is a secondary or intermediary process, where for example, a person has liquid semen on the hand then touches something like the nipple of a baby bottle.

35Crown counsel asked the witness hypothetically, if a man has sexual intercourse with a woman then performs oral sex on her, then within a few moments conducts CPR on a baby, whether there can be secondary transference of spermatozoa. Mr. Kelder said it could be deposited both externally and internally in the mouth area of the baby. He also said that there could be a transfer of sperm from the stomach to the nostril in vomit. Also, if there was a significant number of sperm on the nipple of a bottle and the nipple is placed in the mouth, sperm could travel to the mouth and from there could be swallowed and go into the stomach.

36With respect to the stain on the baby’s sleeper, Mr. Kelder gave the opinion that it appeared to have been smeared on by contact. His opinion with respect to the semen stains on the appellant’s t-shirt was that some appeared to be smeared on, but in the chest area by the logo there were a number of circular stains that suggested that the semen was deposited in a projected fashion.

37Mr. Kelder was also asked to estimate the sperm count of an average male per ejaculate. He answered that there are 300 million spermatozoa per three millilitres ejaculate, which is the average, so that the average density is one million per millilitre. This can be affected by infertility. (There was evidence that the appellant has two of his own children.) The count can also be depressed when there is frequent ejaculation, but that cannot be determined without a measurement.

38Mr. Kelder elaborated in cross-examination that there are twenty drops of ejaculate in one millilitre and therefore 60 drops in three millilitres. A single drop of ejaculate can contain 5 million sperm. Therefore hypothetically if there was ejaculation into the baby’s mouth and he swallowed five drops, there would be twenty-five million sperm. Mr. Kelder concluded that based on that hypothetical and with the qualification of no significant degradation of the sperm or reduction by digestion, through excrement or vomit, “one would expect more” than the one to eight sperm found in the sixteen or seventeen percent of Christian’s stomach contents which were examined. He agreed that there would be 25 million sperm in the stomach at the outset, rather than 50.

39With respect to the spots on the sleeper, Mr. Kelder agreed that they contained a few yeast cells. He also agreed that these can be found as part of a woman’s vaginal infection, or from baker’s yeast.

40Because the semen on the sleeper was a smear it could have got there from rubbing against wet semen on the appellant’s t-shirt. In the same way, the sperm on the pillow was also a smear and could have got there from rubbing against wet semen from other material or from a hand. Dry sperm can also be transferred. Also, the pillow case was dirty. Mr. Kelder said that one cannot tell the age of a semen stain on fabric because it does not degrade on cloth.

41Mr. Kelder agreed that if a man and woman had intercourse, then he performed oral sex on her, that it was possible the man could have some sperm in his mouth, and that some semen could be transferred into the child’s mouth during artificial respiration. He stated however that it was not likely that during the artificial respiration some sperm could have gone from the mouth into the stomach.

42Pamela Newall was qualified as an expert to give opinion evidence with respect to DNA. She was provided with blood samples from the baby, the mother, the appellant and Mr. Rice.

43Ms. Newall examined samples provided to her from the appellant’s jeans. The first was a semen-saliva sample from the inside of the fly area. She explained that they separate the two component parts of the mixed sample, allowing them to purify the DNA from the sexual partner in the “epithelial fraction” and the DNA from the sperm in the “sperm fraction”. On the sample from the inside of the fly, labeled X1, the epithelial fraction was a mixture of Ms. Bill and the appellant, while the sperm fraction matched the DNA profile of the appellant.

44The second stain on the jeans, X2, was a saliva stain. The dominant DNA profile from that was the appellant's, while Ms. Bill could not be excluded as the secondary profile for that stain. She did not identify Christian’s DNA on either stain.

45There was a semen-saliva stain on the t-shirt. From the epithelial fraction they found a mixture of DNA. The dominant profile was from Ms. Bill. Neither Christian nor the appellant could be excluded as contributors to the secondary profile. The “sperm fraction” was from the appellant.

46There were two semen stains on the sleeper. On the epithelial fraction there was a mixture of DNA, the dominant profile was from Christian, with neither the appellant nor Nicole Bill being excluded as contributors to the secondary profile. The dominant DNA profile in the sperm fraction was from the appellant. Christian could not be excluded as a contributor to one of the sperm fractions which had mixed DNA. The other one was only the appellant's.

47Ms. Newall testified that there were not enough sperm on the nasal swab or they were not of sufficient quality to do a profile. Nor were they able to do a profile on the sperm in the stomach contents. In cross-examination, Ms. Newall said that they need more than 100 good quality sperm in order to generate a profile.

48Ms. Newall was asked what could contribute to the epithelial mixture. She mentioned it could be saliva, vaginal secretions, nasal secretion and blood. Therefore dealing with the t-shirt where the dominant profile in the epithelial fraction was from Ms. Bill, because the stain was saliva and semen, it was a reasonable conclusion that there was DNA from saliva in the epithelial fraction. The stain was not tested for vaginal secretions as there is no test for that.

49Ms. Newall agreed that it was not surprising that the epithelial fraction of the stain on the sleeper was from Christian since he could have dribbled on it. The reason that Christian’s DNA is in the sperm fraction is because there is epithelial material in the sperm fraction.

50Dr. Rao was qualified as a forensic pathologist. She performed the post-mortem examination and autopsy on Christian Bill. She gave the opinion that the cause of Christian’s death was asphyxia. The Crown then proposed three hypothetical situations to address the possible manner of asphyxiation. The first was whether asphyxia and death could be caused by a man ejaculating into the baby’s mouth. She responded yes, as a result of ejaculation the child could choke or gag and die. The second was whether death by asphyxia could occur after a man inserted his penis into the baby’s mouth after sexual activity where a quantity of semen remained on the penis, but without ejaculation into the mouth. Dr. Rao responded yes, this could cause gagging or choking and death. The third hypothetical was whether a child could die from asphyxia if the baby’s pillow, which weighed over five pounds, was over the baby’s face. Dr. Rao answered yes, because it would prevent air from entering through the nose and mouth which could cause asphyxia and death. Dr. Rao also gave the opinion that with a four month old baby, “once some asphyxia mode takes place, normally the heart starts slowing down in thirty seconds and the electrical waves passing through the brain would go flat in 90 seconds and then [the] child can die by two minutes.”

51Dr. Rao gave evidence regarding her observations, findings and opinions resulting from the autopsy she did on Christian. She said that the baby appeared well-nourished and well-developed with no trauma to the trunk area. She found the diaper with soft feces in it, as expected with a four-month old child. On the genital area there was an abrasion on the under-surface of the penis and another on the scrotal sack just below the base of the penis. There were also superficial abrasions on the upper margin of the anal orifice. Dr. Rao described it as “a thin sort of bruising”, and gave the opinion that the injury occurred between zero to four or six hours before death.

52Ms. Bill had given evidence that Christian had had a hard stool with blood in it about three or four days before May 10, and that she had planned to call the doctor about it. Dr. Rao was asked if the injury to the anus could be caused by hard stool. She said it was a possibility that is always included as part of a differential diagnosis, but that in a child of four months who is on milk, one would not expect hard stool even if there is constipation.

53She was asked her opinion of what might have caused the internal injury to the rectum. She said it represented blunt force injury, consistent with some blunt object being introduced.

54With respect to the abrasions on the under side of the penis and scrotum, Dr. Rao’s opinion was that they were also made between zero and four or six hours before death. She also said as to the cause that “[i]t implies that there’s been a rubbing action or fondling by hand.”

55Dr. Rao examined the inside of the baby’s mouth and found no fresh injury. She found evidence of vomitus in the form of sticky, slimy, whitish material. She saw no fresh injury to the neck, the trunk, the arms or the legs. There was mild swelling of the brain in response to the asphyxia.

56Dr. Rao measured and examined the contents of the baby’s stomach. She concluded from the curdled milk in the stomach that the baby died roughly within two hours after feeding. Most of the milk or water taken by a baby leaves the stomach within an hour. In cross-examination, she confirmed that the time estimate was approximate.

57Finally in her examination-in-chief, after confirming that she found that the baby was healthy, Dr. Rao was asked about the normal reaction of a healthy baby of that age range who is choking or gagging. She responded that: “One of the responses, they have due to gag reflex, they would start vomiting and in the process of vomiting, they can inhale some of the vomitus into the air passages.”

58In cross-examination Dr. Rao acknowledged a protocol from the Deputy Chief Coroner titled “Protocol for the Investigation of Sudden and Unexpected Deaths in Children Under 2 Years of Age”, which states: “Unfortunately, in this day and age child abuse is a real issue and it is extremely important that all members of the investigative team ‘think dirty’.” She confirmed that as a member of the investigative team, she was to treat every case of a death of a child under two years of age as a case of potential child abuse.

59With respect to the abrasions on the penis, scrotum and anus, Dr. Rao agreed that they could have been older than six hours before death, but in her opinion, twelve hours was too long. She agreed that the abrasions to the penis, rectum, and scrotum played no role in the baby’s death, but stated that they were abnormal findings. She also agreed that the abrasions could have been caused by rubbing with rough clothing if there was such contact.

60Dr. Rao took an oral swab of white slimy material in the baby’s mouth and found no sperm in it, nor was there pubic hair in the mouth. Dr. Rao also submitted the endotrachial tube that was down the baby’s windpipe for analysis. There was no sperm on it. There was no bruising on the inside of the mouth, the lips, the gums, or under the skin at the back of the head. The latter spot was examined because of the possibility of smothering and the theory that the baby’s head may have been held face down on the pillow, although Dr. Rao stated that bruising is rarely found and is not essential where the head is just held down with an open hand. There was also no bruising on the “hand-hold sites”, which on a baby are places one might grab such as around the chest and arms.

61Dr. Rao was asked about the diagnosis known as S.I.D.S., “sudden infant death syndrome”, which Dr. Rao said is the second most common cause of death of children under one year next to natural disease. She agreed that choking or smothering cannot be distinguished from S.I.D.S. on a negative autopsy. She discussed some of the theories explaining S.I.D.S. One is a re-inhalation of carbon dioxide during a long period of apnea. The breathing cycle of the child is affected, the gas exchange does not take place resulting in a form of asphyxia. A second theory of what happens in a S.I.D.S. death is obligate nose breathing causing asphyxia. The child only uses the nose to breathe, then gets an infection and dies. Dr. Rao agreed that common to all theories is that something affects the child’s breathing and it dies.

62Another label that is used when a child dies is S.U.D.S. referring to “sudden unexplained death” or “sudden unexpected death”. Dr. Rao agreed that a death is called S.U.D.S. when it looks like S.I.D.S. but there are suspicious circumstances. In this case, S.U.D.S. was Dr. Rao’s provisional diagnosis at the end of the autopsy. After she had all of the biology reports, her report stated the cause of death as “undetermined” and raised various possible mechanisms of death as follows: ejaculation into the baby’s mouth; choking from a penis in the mouth; and, smothering. The injury to the penis and scrotum and a positive biology report led her to exclude S.I.D.S. as a possibility. However, she acknowledged that she could not rule out whatever “x” factor causes S.I.D.S., as the cause of the asphyxia in this case. Dr. Rao agreed that Christian was in risk of S.I.D.S. because of the following risk factors: the high risk age group (3 – 6 months); parents who smoke; smoking during pregnancy; and, lower socio-economic circumstances.

63Dr. Rao also said at the preliminary hearing that where there is a previous history of asthma, an individual can die suddenly and post-mortem examination may not show anything. She qualified that opinion at the trial by saying there should be some evidence of broncho spasm which is the reason for death, and one will see mucous plugging.

64Dr. Rao was asked whether it was possible that a healthy child could vomit or spit up something from the stomach which then goes into the lungs. She responded that “[i]t can happen, but normally a healthy child do [sic] not die due to that.” She said that there would be some underlying reason such as the person is under the effect of alcohol or drugs or has a degenerative disease. She said that the possibility of this happening in a healthy baby is unlikely but she could not absolutely rule it out. She said that of her theories of how the baby died of asphyxia, S.I.D.S. was the least likely.

65The last witness, who was another expert called by the Crown, was Dr. Kenneth Finkel who was qualified to give expert evidence as a paediatrician. He was asked about the mobility of a baby of four months. He said that a baby of that age can roll over once but not across the room. He can move his head from side to side. A baby of that age cannot usually deliberately reach out and grasp something. He said that whether a baby could pull a five pound pillow over its face would depend on the position of the pillow in relation to the baby. If the pillow were over the baby’s face and arms, the baby would be able to budge the pillow a bit with the arms. In cross-examination he also postulated that with the pillow in a certain position, the baby could roll from front to back against it and the pillow might fall.

66At the close of the Crown’s case, the defence moved for a directed verdict of acquittal on the charges of first degree murder and sexual assault causing bodily harm. The trial judge stated that the motion was based on three grounds:

1. The Crown’s case was based wholly on circumstantial evidence. The time of death was uncertain. The evidence did not disclose that the appellant had exclusive opportunity to commit the offence.

2. The Crown had not proved that the death was the result of a homicide.

3. There was no evidence of the requisite intent for murder: that is, either the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

67After reviewing the legal tests to be applied, the trial judge made the following findings:

1. There was sufficient evidence that the accused had the opportunity to commit the offence.

2. There was no evidence upon which a jury could reasonably find that the pillow was used to smother the child and cause his death. As a result the judge directed the jury not to consider that evidence in arriving at a verdict.

3. There was no evidence upon which the jury could reasonably find that the accused meant to cause the death of the baby or meant to cause him bodily harm that he knew was likely to cause death and was reckless whether death ensued. The judge therefore directed a verdict of acquittal of murder.

4. There was sufficient evidence for a jury to reasonably find that the accused intended to sexually assault the baby by ejaculating semen into the mouth or by inserting his penis into the mouth, and that he could have objectively foreseen the risk of bodily harm which was neither trivial nor transitory in the context of a dangerous act. The judge therefore concluded that there was evidence upon which a jury could reasonably find the accused guilty of manslaughter.

5. There was sufficient evidence upon which a jury could find that the asphyxia that caused the death resulted from sexual assault by the accused, and therefore that the death was a homicide.

The judge therefore concluded that the charges that would go to the jury were manslaughter and sexual assault causing bodily harm.

68The trial resumed after the ruling. The defence called no evidence.

69After submissions by counsel with respect to the jury charge, the trial judge ruled that as the Crown was alleging manslaughter caused by sexual assault by insertion of the appellant’s penis into the baby’s mouth, the included offence of sexual assault had to involve that assault and could not consist only of interference with the baby’s anus, penis and scrotum. The evidence respecting those areas was alleged by the Crown to be part of the sexual assault on the mouth, but not a cause of the death and therefore taken alone, could not constitute the included offence alleged by the Crown. As a result, the Crown drew a new indictment charging manslaughter by sexual assault and the jury was instructed in accordance with the ruling.

70At the conclusion of his charge to the jury the trial judge made some comments on the evidence and on the strength of the Crown’s case, a practice normally reserved for rare circumstances. He pointed out to the jury that Ms. Bill was consistent in her evidence that the baby was alive at 9:00 a.m. as she told the 911 operator the same thing. The audio of that call, which they heard, demonstrated that she was hysterical when talking to the 911 operator after finding the baby cold, pale and with white foam on his nose and mouth at noon. The trial judge told the jury that if they accepted her evidence that the baby was still alive at 9:00 a.m., or had a reasonable doubt about it, then the Crown would have failed to establish that the death occurred earlier when the appellant had the opportunity to commit the offence.

71The trial judge also reviewed the consistent evidence of numerous witnesses that the baby had white material on and in his nose and mouth and that he had vomited. He stated that it appeared logical on the evidence that the child’s airway was obstructed by vomit. He referred to Dr. Rao’s evidence of the directive to “think dirty”, and instructed the jury that it was their duty to consider the evidence objectively and to be impartial. He instructed the jury to question whether a scientist could maintain impartiality and objectivity if instructed by a superior to “think dirty”. Given that there was evidence that death was caused by regurgitation leading to airway obstruction and asphyxia, he raised the issue of whether Dr. Rao’s opinion that that was unlikely was tainted by the “think dirty” admonition. Finally he stated that it was his view that on the evidence there was a reasonable doubt as to whether the death was a homicide.

72The jury deliberated over a period of three days and asked 10 questions. The first request was for the entire transcript of the evidence and of the judge’s charge. In response, the trial judge explained that the whole transcript was not available, but that they could ask for particular portions and then he, the reporter and counsel would get together “to see if we can get that evidence for you.” Shortly thereafter they came back with four questions, one of which was a request for an overview of Ms. Bill’s testimony of the sequence of events. Counsel agreed that the judge should not give a sequence of events and that either the entirety of Ms. Bill’s evidence should be played back or none of it. The trial judge told the jury that the only way to give an overview of Ms. Bill’s testimony of the sequence of events was to play back the total transcript of her testimony, and then he said: “but certainly that is part of your function, for all of you to remember what the evidence was and it’s for you to decide what the sequence of events were.” Although the jury asked further questions, they did not ask again for Ms. Bill’s evidence. The second ground of appeal is that the trial judge erred by failing to answer this question from the jury and refusing to assist them with this crucial evidence.

73On the morning of the third day of deliberations the jury asked for a repetition of the judge’s charge, together with the following two questions:

“If there is a belief that the baby died by another means other than 1. Penis in the mouth, 2. Penis ejaculating in the mouth (Crown), 3. “x” factor causing SIDS (defence), can there be a decision of guilty of manslaughter rendered or are we restricted to these 3 possibilities?”

and

“How much weight do we place on the evidence as opposed to the theory? If we can construct a theory to support the evidence, whether that theory be right or wrong, can we render a decision of guilty of manslaughter?”

In response the judge repeated certain parts of the charge to the jury and instructed them that to convict they must be satisfied that one of the two methods of sexual assault occurred and resulted in the death. They were recharged on drawing inferences from the facts and reminded that they could not speculate.

74The jury returned with the guilty verdict later that day. The trial judge sentenced the appellant to 15 years in prison.

ISSUES

75The appellant appeals both conviction and sentence. There are two grounds of appeal against conviction. The first is that the verdict is unreasonable. The second is that the trial judge erred by failing to answer the jury's question and to assist them with the evidence of Ms. Bill. The Crown appeals from the directed verdict of acquittal on the charge of first degree murder, on the basis that the trial judge erred in ruling that there was no evidence of intent. The Crown seeks a new trial on that charge only in the event that the appellant’s appeal is allowed and a new trial is ordered on the manslaughter charge.

76The appellant’s chief ground of appeal is unreasonable verdict. The statutory authority for the appeal court’s jurisdiction is s. 686(1) which provides:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

77The test that a court on appeal is to apply when considering whether a verdict of guilty ought to be set aside as unreasonable has been considered and explained in two decisions of the Supreme Court of Canada, R. v. Yebes (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 and most recently R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1. The test, “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered,” has both objective and subjective components which involve the appeal court in a limited reweighing of the evidence. The issue is not whether the verdict was possible, but whether it was reasonably available on the evidence: (Yebes at p. 430). In Biniaris, Arbour J. explained that:

. . . [A]cting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction. (p. 23-4)

Arbour J. concluded with the following summary of the method by which a court on appeal is to proceed when considering the issue of unreasonable verdict:

. . . [T]he test in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence. To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence. Particularly since this amounts to a question of law that may give rise to an appeal, either as of right or by leave, the judicial process requires clarity and transparency as well as accessibility to the legal reasoning of the court of appeal. When there is a dissent in the court of appeal on the issue of the reasonableness of the verdict both the spirit and the letter of s. 677 of the Criminal Code should be complied with. This Court should be supplied with the grounds upon which the verdict was found to be, or not to be, unreasonable. (p. 25)

Applying the Test in this Case

78The basis for the Crown’s case after the directed verdict of acquittal of first degree murder, and for the conclusion of Dr. Rao that she believed that the cause of the asphyxiation of the baby was a sexual assault, was the finding of some sperm in and around the baby, together with the evidence of some injury to the anus, penis and scrotum. It was acknowledged, however, that these latter injuries did not cause or contribute to the death. The precise sexual assault that was alleged to be the cause of the baby’s asphyxiation was either ejaculation into the baby’s mouth or placing the penis with sperm on it into the baby’s mouth. The particular sexual assault alleged was one of the essential elements that the Crown was required to prove beyond a reasonable doubt. It is the conclusion that that sexual assault occurred which is the basis of the appellant’s submission that the verdict on the manslaughter indictment is an unreasonable one.

79The entire case was based on circumstantial evidence, including the basis of the expert opinion as to the likely cause of death by asphyxiation. There was no finding of any lesions in or on the mouth or face suggestive of an assault on that area, nor anything on the trunk, neck, arms or legs. Neither sperm nor pubic hair were found in the baby’s mouth or on his face. The only physical evidence consistent with a penis having been inserted into the baby’s mouth was the limited findings of sperm in the stomach, on the nipple, the sleeper and the pillow. Because Dr. Rao could not exclude asphyxiation by regurgitation, she could not give a conclusive opinion, based on her findings, as to the cause of the asphyxiation.

80In a case which is based wholly on circumstantial evidence, the finding of guilt must be founded on the conclusion that “there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime.” (R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679 at para. 13) Although a jury need not be instructed precisely in those terms, the circumstantial evidence must amount to proof beyond a reasonable doubt. Therefore, if there is another rational explanation that accounts for the death and is consistent with the evidence, then the case has not been proved beyond a reasonable doubt.

81The appellant’s position is that there is an obvious explanation, which is inconsistent with manslaughter, for the presence of the very limited number of sperm found in and around the baby. The appellant argues that, given that the appellant had engaged in sexual intercourse with Ms. Bill more than once during the night in question, and had checked on the baby several times, possibly naked, and without showering, and given that after intercourse followed by oral sex on Ms. Bill, the appellant gave mouth to mouth and nose artificial respiration to the baby, the presence of a small number of sperm is explained. The appellant argues further that the number found is not consistent with ejaculation, nor is it consistent with insertion of a penis covered with sperm into the baby’s mouth. However, the number of sperm found is consistent with the appellant touching and tending to the baby during the night while having ongoing sexual intercourse and later oral sexual relations with Ms. Bill, and later giving the baby mouth to mouth and nose artificial respiration.

82Based on Yebes and Biniaris, it would be open for this court to consider the evidence as a whole and to some extent reweigh the evidence according to accepted legal principles and based on judicial experience and, if satisfied, to give effect to the appellant's submission.

83However, in my view, it would be an error for this court to limit its analysis to the evidence which was left with the jury, which excluded the evidence regarding the pillow.

84In view of the trial judge’s finding on the motion for a directed verdict that there was no evidence upon which a jury could reasonably find that the pillow was used to smother the child and cause his death, the jury was left with only the two possible means of causing the infant’s death during the course of a sexual assault by the appellant: (a) ejaculation into the baby’s mouth; or (b) by insertion of his penis into the baby’s mouth causing the baby to choke. However, in responding to the appellant’s appeal from conviction, it is open to the Crown to advance any argument that it advanced at trial to sustain the verdict: see Perka v. The Queen (1984), 1984 23 (SCC), 14 C.C.C. (3d) 385 at 391 (S.C.C.). Hence, it is open to the Crown to argue that the trial judge erred in directing the jury to disregard the evidence of the pillow and to remove smothering by the pillow as a means of causing the death in the new indictment, and that a properly instructed jury could find on the evidence that a third possible means by which the appellant could have caused the death was by smothering the baby with a pillow during the course of committing a sexual assault on the baby’s genital area. (I note that in his submissions to the trial judge on the directed verdict motion, Crown counsel at trial abandoned any argument that the appellant smothered the baby with the pillow without committing a sexual assault.)

85In my view there was no basis to exclude the evidence of the pillow and it was an error for the trial judge to do so. The jury heard evidence both from Ms. Bill and from the police officers recounting what the appellant had told them: that he had found a pillow over the baby’s face at 8:30 a.m., he removed it and confirmed that the baby was still breathing at that time. The pillow evidence was part of the sequence of events that occurred that evening, and therefore formed part of the context for all the other evidence that the jury heard. It was clearly relevant, particularly where the theory of the Crown and of the expert evidence was that smothering by a pillow was a possible cause of the asphyxiation. The smothering could have been deliberate or accidental, based on the evidence of Dr. Finkel. Hence this evidence should have been left for the jury to consider as a basis for conviction or possible acquittal.

86It follows that any consideration of whether the verdict was an unreasonable one can only be undertaken on the basis of all the evidence and on the basis of an indictment and instructions thereon which left open for the jury the three methods or means of causing the death and not just the sexual assault. On that basis, in my view, it cannot be said that the verdict was unreasonable.

87The second ground raised by the appellant is that the trial judge erred by refusing to provide the jury with any assistance with the evidence of Nicole Bill in response to the jury's question.

88The jury’s question focused on the sequence of events which was provided solely by Ms. Bill in her testimony. The trial judge had just finished instructing the jury that he believed the evidence raised a reasonable doubt and focused on the time of death based on the evidence of Ms. Bill that the baby was alive at 9:00 a.m.. The sequence of events was critical in terms not only of the appellant’s opportunity to commit the offence, but in order to assess that opportunity within the context of the expert evidence of the cause of death.

89I agree with the appellant that the trial judge erred by declining to provide the jury with any assistance as to the evidence of Nicole Bill or a review of the sequence of events. In R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 at p. 6 (S.C.C.), Cory J. emphasized the importance of providing the jury with correct and comprehensive answers to questions asked of the trial judge following the main charge. He concluded that: “It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered.” This court has recently reiterated the importance of this obligation. See R. v. Hofung, 2001 4796 (ON CA), [2001] O.J. No. 1342; and R. v. Humphrey, 2001 4806 (ON CA), [2001] O.J. No. 1263.

90On the basis of this error, the manslaughter verdict must be set aside and a new trial ordered.

The Crown Appeal of the Directed Verdict of Acquittal of First Degree Murder

91The Crown submits that the trial judge erred by directing a verdict of acquittal on the charge of first degree murder. The Crown submits that the trial judge erred in holding that there was no evidence of intent for murder, and submits that there was some evidence on each element of the offence to be proven.

92The Crown also submits that the trial judge erred in law by applying the wrong test on a directed verdict by weighing the evidence, a function reserved for the jury. The trial judge instructed himself in the following way as to the legal test to apply on a directed verdict:

On a motion for directed verdict of acquittal, the issue to be determined is whether the case should go to the jury or should verdicts of acquittal be directed. The test to be applied is that set out in U.S.A. v. Shephard, that is, whether or not there is any evidence before me that a reasonable jury, properly instructed, could return a verdict of guilty.

The Crown's case is based on circumstantial evidence.

In the case of Monteleone v. The Queen, 35 C.C.C. (3d) at page 198, The Supreme Court of Canada sets out the basis upon which a trial judge may determine,

"Whether there is before the Court any admissible evidence, whether direct or circumstantial which, if believed, by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the triers of fact, the jury."

In the case of Charemski v. The Queen, 123 C.C.C. (3d) 229, Bastarache J. states as follows:

"For there to be 'evidence upon which a reasonable jury properly instructed could return a verdict of guilty' in accordance with the Shephard test, the Crown must adduce some evidence of culpability for each essential element of the crime for which the Crown has the evidential burden. Thus, in a murder prosecution, the Crown must adduce evidence on issues of identity, causation, the death of the victim and a requisite mental state. If the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdict of acquittal."

Further on page 236, McLachlin, J. elucidates further as follows:

"A properly instructed jury acting reasonably, is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, a judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In so doing, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. If it is not, the trial judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally on the evidence."

93The trial judge quoted the correct test from R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, and from the reasons of Bastarache J. in R. v. Charemski. He went on to quote from the dissenting reasons of McLachlin J. in that case. He made no error in doing so. In that portion of the reasons, McLachlin J. was referring not to a process of weighing the evidence, such as considering its credibility or reliability or the drawing of inferences, but of testing its legal sufficiency to permit a jury to be satisfied of the guilt of the accused beyond a reasonable doubt.

94In any event, in making his findings, the trial judge found there was “no evidence” upon which a jury could reasonably find the pillow was used to smother the child and cause his death, and that there was “no evidence” upon which a jury could reasonably find that the appellant meant to cause the death of the baby or to cause him bodily harm that he knew was likely to cause death and reckless whether death ensued or not. In other words, in respect of the findings he made which underpinned the directed verdict on first degree murder, the trial judge demonstrated that he was applying the correct test.

95Consequently, the issue before this court is not the articulation of the test but its application. Did the trial judge err in his conclusions with respect to the existence or sufficiency of the evidence, first on the smothering issue, and second on the issue of intent?

96The original charge in the indictment against the appellant was first degree murder. The Crown argued as its primary basis that there was some evidence of sexual assault by the appellant putting his penis into the baby's mouth or ejaculating into his mouth, and that there was sufficient evidence of the required intent to kill for the charge of first degree murder on that theory to go to the jury. The trial judge accepted, based on the legal test as he set it out, that there was sufficient evidence of the sexual assault by the penis to leave that issue for the jury, but that there was no evidence that the appellant intended to kill the baby.

97The Crown's second theory was that the appellant smothered the baby with the pillow. It was not the Crown’s position for first degree murder that there was evidence of planning and deliberation. Rather, the position of the Crown was that the appellant smothered the baby during or after sexually assaulting him (s. 231(5)(b)). Crown counsel made this position clear in his submissions to the trial judge on the directed verdict motion.

98What was the evidence to support that charge?

1. The baby died in unexplained circumstances from asphyxia.

2. The evidence of Dr. Rao was that one of the possible causes of the baby’s death by asphyxiation was smothering.

3. There was evidence of a possible sexual assault on the baby's anus, scrotum and penis. Dr. Rao first said that the freshness of the injuries suggested that they occurred within zero to 4 or 6 hours of the baby’s death. In cross-examination she agreed that they could have been several hours older.

4. The appellant attended to the baby several times during the night of May 9 and the early morning of May 10 when the baby was crying and fussing.

5. Based on the stomach contents, the baby would have died within 2 hours of his last feeding of milk, which would put the death sometime during the night as the last feeding of milk was either the night before or on one of the occasions when the appellant went in before the baby finally did not cry anymore after about 3:00 a.m.

6. Death of a baby by smothering can take as little as two minutes.

7. At 8:30 a.m., the appellant emerged from the baby’s room with the baby’s large pillow that weighed more than five pounds and said that he had found it over the baby’s face but that the baby was still breathing.

8. At four months old the baby could not have grabbed the pillow, although he might have been able to pull it over him depending on its position or fall against it and knock it over if it had been leaning upright.

99It would also be open to the jury to consider the appellant’s conduct with the pillow at 8:30 a.m. as incriminating after the fact conduct, if they accepted that the baby was already dead at that time. If the baby was dead and the appellant knew it, then his statement to Ms. Bill that he found the pillow on the baby’s face and that the baby was still breathing could be viewed as an attempt to set up an innocent explanation for when the baby was later found dead by asphyxiation.

100In my view, taking the listed points together, it cannot be said that there is no evidence upon which a jury could reasonably find that the appellant used the pillow to smother the child and did so with the necessary intent to kill or cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

101In the same way, if the appellant committed a sexual assault on the baby by inserting his penis in the baby's mouth, it cannot be said that there is no evidence that he did so with the necessary intent to kill or cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. It was open to the jury to conclude on the evidence that the natural consequence of that act was that the baby may not be able to breath or may choke. The jury was entitled to infer that the appellant intended that consequence.

102Further, if the jury did not accept that before or while the appellant smothered the baby with the pillow, he sexually assaulted him, but did find that the appellant placed the pillow over the baby’s face to stop him from crying, it would be open to them to find that he meant to cause death or that he meant to cause the baby bodily harm and was reckless whether death ensued and therefore to convict the appellant of second degree murder. ¹

103I conclude that the trial judge erred in his ruling on the directed verdict motion and should have allowed that charge to be considered by the jury.

Would a Verdict on First Degree Murder be an Unreasonable Verdict?

104The appellant submits that this court is in as good position as a future jury to assess the reasonableness of a verdict on a charge of first degree murder based on the record before it. All of the evidence that would be before that jury has been led and the appellant was put to his election. The appellant submits both that the directed verdict did not amount to a substantial wrong or miscarriage of justice and that a verdict on first degree murder would be an unreasonable one.

105In R. v. Collins and Pelfrey (1993), 1993 8632 (ON CA), 79 C.C.C. (3d) 204, this court suggested that in a very rare case, such as R. v. Greenwood (1991), 1991 2730 (ON CA), 67 C.C.C. (3d) 435 (Ont. C.A.), a court on appeal from a directed verdict of acquittal may be in a position to decline to order a new trial on one of the above two bases. In Greenwood, the trial judge erred in directing a verdict of acquittal. However, following the directed verdict, the appellant testified at the trial of his co-accused and gave evidence which was accepted by the trial judge. In those circumstances the court held that the Crown could not demonstrate that the verdict would have been any different had the trial judge not erred in his ruling.

106I agree that the evidence against the appellant is weak and equivocal. The trial judge was satisfied that the evidence raised a reasonable doubt of the appellant’s guilt. The pathologist could not rule out death by S.I.D.S. or just accidental asphyxiation on vomit. The time of death is problematic. In order to convict the appellant, a jury must reject the evidence of Ms. Bill (as they did) that the baby was alive at 9:00 a.m. Having rejected her evidence on that crucial issue, the jury would be obliged to consider whether they could be satisfied, based on the evidence they did accept, including any of the evidence of Ms. Bill, that the appellant in fact committed the offence.

107However, having found that there is some evidence for a jury to consider on all the elements of the offence of first degree murder either by sexual assault or by smothering with the pillow while committing a sexual assault, this court is not in a position to make findings of credibility and reliability of, for example, Ms. Bill, or to draw the inferences which a jury may draw based on an assessment of the evidence.

108In my view, this is not the rare case referred to in Collins and Pelfrey, where a new trial should not be ordered because a verdict of guilty of first degree murder would necessarily be an unreasonable one.

RESULT - THE EFFECT OF THE CROWN’S POSITION ON THE APPEAL

109The Crown took the position in writing and in oral submissions before this court that it “requires an Order for a new trial on first degree murder only in the event that a new trial on the offence of manslaughter is ultimately ordered, either by this Honourable Court or by the Supreme Court of Canada.” The Crown’s position is that it is content with the verdict of manslaughter, so that if the appeal on manslaughter is dismissed, it would not seek a new trial on first degree murder. However, in that case the Crown wishes to keep its appeal alive in the event of a further appeal to the Supreme Court of Canada.

110In Guillemette v. The Queen (1986), 1986 59 (SCC), 26 C.C.C. (3d) 1, the Supreme Court of Canada held that where an accused is convicted of an included offence, and therefore in accordance with s. 605(2) of the Criminal Code, the accused has been acquitted of the greater offence originally charged, and the accused appeals the conviction, the court on appeal may only deal with a disposition of the lesser charge under appeal unless the Crown has appealed the acquittal on the original charge. Crown counsel advised that it was because of the ruling in Guillemette, that the Crown brought its appeal in this case. Its position before this court is consistent with that approach.

111The appellant's response is that even if his appeal failed and the manslaughter verdict were upheld, the court should consider the Crown's appeal and if it succeeds, there ought to be a new trial on the first degree murder charge. There is no need to deal with that submission as the manslaughter conviction is set aside.

112As the manslaughter verdict has been set aside and a new trial ordered, I conclude that by appealing the directed verdict of acquittal, the Crown has preserved its position.

RESULT

113I would therefore allow the appeal of the appellant and set aside the conviction on the manslaughter charge. I would also allow the appeal by the Crown in respect of the directed verdict of acquittal of first degree murder and order a new trial on that charge.

Signed: “K.N. Feldman J.A.”

“I agree Louise V. Charron J.A.” “I agree J.C. MacPherson J.A.”

Footnotes

1. 1However, Crown counsel at trial expressly disavowed that theory in his submissions on the directed verdict, so that such an alternate instruction could not have been given had the first degree murder count survived. Had the jury, however, asked a question similar to the question they asked on the third day of deliberations, an instruction along these lines would have been available and appropriate.