R. v. Trotta, 2004 CanLII 34722 (ON CA)

DATE: 20041028

DOCKET: C32352/C32570

COURT OF APPEAL FOR ONTARIO

DOHERTY, SHARPE and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

MARCO TROTTA and ANISA MARIA TROTTA*

Appellants

Michael Lomer for the appellant, Marco Trotta

Howard J. Borenstein for the appellant, Anisa Trotta

Lucy Cecchetto for the respondent

Heard: May 25-26, 2004

On appeal from convictions returned by a jury presided over by Justice Alfred J. Stong of the Ontario Court (Gen. Div.), dated June 12, 1998.

DOHERTY J.A.:

I

1Paolo Trotta died in May 1993. He was eight months old. Initially, his death was attributed to Sudden Infant Death Syndrome (“SIDS”). A year later, after a second post-mortem, the authorities concluded that Paolo had been abused during his short life and that his death was a homicide. His parents, the appellants Marco and Anisa Trotta, were charged with various offences.

2The appellant Marco Trotta (Marco) was convicted of second degree murder (count 1) and sentenced to life imprisonment without parole eligibility for 15 years. He was also convicted of aggravated assault (count 2) and assault causing bodily harm (count 3). He received concurrent sentences totalling 7 years on the assault charges.

3The appellant Anisa Trotta (Anisa), Marco Trotta’s wife, was convicted of criminal negligence causing death (count 5) and failure to provide the necessaries of life (count 6). She received a total sentence of 5 years. She was acquitted on the manslaughter charge (count 4).

4The appellants appeal from the convictions. They allege that:

• the verdicts are unreasonable;
• the trial judge erred in law in failing to exclude potentially prejudicial evidence adduced by the Crown; and
• the trial judge made several errors in his instructions to the jury.

5I would dismiss the appeals. I agree that the trial judge should have excluded certain demeanour evidence offered by the Crown. I also agree that there were errors in the instructions to the jury. The Crown has satisfied me, however, that the errors did not occasion any substantial wrong or miscarriage of justice.

II

6According to the appellants’ statements, Paolo was healthy and alert on the evening of May 28, 1993. Marco looked in on Paolo the next morningand he seemed fine. When Marco returned to Paolo’s room about a half an hour later, Paolo was in obvious and serious physical distress. The Trottas called 911 and Paolo was rushed to the hospital where he was pronounced dead. Dr. David Chan performed an autopsy and concluded that Paolo’s death was attributable to SIDS.

7A year after Paolo’s death, his one month old brother, Marco Jr., was admitted to the hospital with a spiral fracture of the femur and recent bruising on his face, buttocks and neck. The nature of the fracture and bruising in the shape of a thumb on Marco Jr.’s leg suggested that he had been held by the lower leg while the leg was twisted outward. The Trottas gave different explanations for Marco Jr.’s injury and were reluctant to allow the hospital personnel to take the necessary x-rays. The authorities opened an investigation into Marco Jr.’s injuries and decided to re-examine Paolo’s death. Paolo’s body was exhumed and a second autopsy was performed by Dr. Charles Smith, a forensic pathologist. Paolo’s medical records were also examined by an expert in paediatric radiology and an expert in the medical aspects of child abuse.

8The second autopsy, and related material examined by Dr. Smith and other experts, revealed that Paolo had suffered various severe injuries during his lifetime. These included three skull fractures and a spiral fracture of the humerus. The medical experts agreed that Paolo had been physically abused.

9Dr. Smith rejected the diagnosis of SIDS mainly because of the many significant injuries Paolo had suffered during his lifetime. Dr. Chan testified at trial and agreed with Dr. Smith that Paolo had not died of SIDS as Dr. Chan had initially indicated. Dr. Chan changed his opinion in deference to Dr. Smith’s greater expertise and because Dr. Chan was not aware of Paolo’s medical history when he made his SIDS diagnosis.

10Dr. Smith could not identify a specific cause of death. However, he testified that the weight of Paula’s brain (940 grams) was well beyond the normal brain weight for an infant of Paolo’s age and size. According to Dr. Smith, excessive brain weight indicated brain edema or swelling, a non-specific response to injury or disease. Dr. Smith noted that Dr. Chan had not observed any disease process, and that there was no clinical or pathological evidence of any disease. According to Dr. Smith, if disease was excluded, brain edema could be caused by trauma to the brain or asphyxia. Asphyxia in turn could be the product of a brain injury or some unrelated cause such as strangulation. It was Dr. Smith’s opinion that brain injury was the most likely cause of Paolo’s brain edema. In coming to this conclusion, Dr. Smith referred to the three skull fractures revealed by the x-rays, one of which occurred some time between a few days before Paolo’s death and 10 minutes before his death. Dr. Smith suggested that the third fracture could have been caused by a lethal blow to the head.

11In his report, Dr. Smith described the cause of death as “undetermined”. In cross-examination, he testified that he could not identify the specific cause of death with any certainty. In re-examination, he was asked whether he could exclude possible causes of death. Dr. Smith replied:

I don’t have any evidence of natural disease to explain Paolo’s death. If I accept the history that you gave me, that is that he was seemingly well at even 7 in the morning and dead at 7:30 or in extremis such that he ultimately died a little while afterwards, if that’s true – and here once again you understand how frustrating this is because I don’t know. There’s a whole series of things I don’t know whether they’re true or not true. If that’s true, then I have to regard Paolo’s death as being non accidental in nature unless an alternate credible explanation is given [emphasis added].

12The defence did not challenge Dr. Smith’s competence or the medical explanations he offered for Paolo’s brain weight. Counsel did establish, however, that Dr. Smith’s opinions depended on the accuracy of the brain weight as recorded by Dr. Chan. In cross-examination, Dr. Smith acknowledged that Dr. Chan had made numerous significant errors during the autopsy. Dr. Smith was critical of Dr. Chan’s procedures and his powers of observation. According to Dr. Smith, Dr. Chan had failed to follow basic procedures during the autopsy, had missed obvious injuries (e.g. skull fractures), and had not observed symptoms that were commonly associated with cerebral edema. Dr. Smith testified that these symptoms would have been obvious if they were present.

13Counsel also established through Dr. Smith that the initial autopsy had left so many questions unresolved that a specific cause of death could not be identified with certainty. Dr. Smith could not say that any particular injury caused Paolo’s death.

III

The Positions of the Parties

(i) Marco Trotta

14It was the position of the Crown that Marco Trotta repeatedly assaulted Paolo from shortly after his birth in September 1992 until his death in late May 1993. The Crown contended that some time shortly before Paolo’s death, Marco Trotta assaulted Paolo and caused his death. Count 1, the murder charge, arose out of this final assault. Counts 2 and 3 alleged assaults throughout Paolo’s brief life.

15In support of its case against Marco, the Crown led evidence of numerous injuries suffered by Paolo beginning a few weeks after his birth. The evidence of these injuries came from various lay witnesses, particularly Paolo’s grandmother (Anisa Trotta’s mother), medical evidence and a videotape taken by the appellants about two weeks before Paolo’s death.

16Without attempting an exhaustive description of the injuries to Paolo described in the evidence, these injuries included:

• bruising on the forehead observed by his grandmother in October 1992;
• a very sore arm observed in December 1992;
• two skull fractures observed in x-rays taken in early January 1993 – one was more recent than the other;
• bruising to the face observed when Paolo was hospitalized in connection with the head injury in early January 1993. This bruising was not caused by the same trauma that caused the most recent skull fracture;
• an apparent bite mark on Paolo’s face observed in February 1993;
• a painful leg observed in February 1993;
• a spiral fracture of the right arm, probably suffered in around April 1993. The injury was never treated and was first observed in the post-mortem x-rays;
• bruising of various ages to Paolo’s face, forehead and buttocks observed in a videotape taken by the appellants during their Florida holiday about two or three weeks before Paolo’s death;
• recent bruising on Paolo’s head and face observed when he was brought into the hospital on May 29; and
• a third skull fracture which occurred within a couple of days and perhaps a few minutes of Paolo’s death.

17The Crown argued that Paolo’s age, the number of the injuries, the location of many of the injuries and the nature of some of the injuries made the conclusion that Paolo was a battered child irresistible. The Crown also argued that the explanations offered by the appellants at different times for some of the injuries were clearly false.

18The Crown contended that Paolo’s injuries were inflicted by Marco. The Crown relied on the evidence that Marco was with Paolo when the more serious injuries occurred. The Crown also relied on evidence that Marco disliked Paolo, had difficulty accepting the changes that a baby had brought to his life and constantly treated Paolo roughly and with disdain. There was evidence that Marco did not deal well with Paolo when he cried and was prone to losing his temper.

19The Crown argued that the jury could find that Marco had assaulted Marco Jr. about a year after Paolo’s death and that this evidence could be used by the jury to support the Crown’s contention that Marco had assaulted Paolo.

20The Crown further maintained that if the jury accepted that Paolo had been abused and that Marco was the perpetrator, the jury must convict on the charges of aggravated assault and assault causing bodily harm.

21In regard to the murder charge, the Crown acknowledged that it could not prove the precise medical cause of death or point to the specific act by Marco that caused Paolo’s death. The Crown’s causation argument was summarized by Crown counsel in her closing address in this way:

In fact I think we’re confronted with a situation where we can’t confidently say what happened to Paolo. This doesn’t matter. All that you have to be satisfied of is that Paolo died as a result of something that his father did to him. You may disagree as to which scenario is more likely but as long as you agree that Marco Trotta was responsible for the death of his son he can be found guilty of manslaughter at a minimum [emphasis added].

22The Crown argued that if the jury was satisfied that Paolo was the victim of ongoing abuse at the hands of his father, it should conclude that he died as a result of that ongoing abuse, even if the Crown could not point to the specific act that led to Paolo’s death.

23Marco did not testify. Through counsel, he argued that he could not be convicted of murder because the Crown had failed to prove the cause of Paolo’s death beyond a reasonable doubt. Counsel also argued that the Crown had failed to prove that Paolo had been the victim of ongoing abuse. Counsel submitted that most of the evidence of abuse came from Paolo’s grandmother who had demonstrated a strong bias against Marco Trotta. Counsel relied on the evidence that Marco Trotta and his wife regularly took Paolo to the doctor. Medical personnel who examined Paolo from time to time between September and May saw no signs of abuse. Counsel also contended that the explanation for the injuries offered in Marco’s statements were reasonable and were accepted by hospital personnel and the Children’s Aid workers. Counsel also argued that the evidence did not support the Crown’s contention that Marco Trotta was violent towards Paolo, but went no further than to suggest that Marco, a new father and a young man, had shown some impatience and immaturity in dealing with his baby. Counsel also submitted that Marco’s conduct with the Children’s Aid authorities and the police was entirely consistent with his innocence.

(ii) Anisa Trotta

24The Crown did not argue that Anisa Trotta had assaulted Paolo or that she was directly responsible for his death. The Crown submitted that by failing to protect Paolo from the repeated abuse inflicted on him by Marco, Anisa Trotta had failed in her duty to protect her son. The Crown contended that the failure to take any steps to prevent or stop the assaults amounted to a failure to provide the necessaries of life to Paolo. The Crown argued that in failing to meet this duty, Anisa Trotta demonstrated a wanton and reckless disregard for Paolo’s well-being that ultimately led to his death at Marco’s hands, thereby making Anisa guilty of criminal negligence causing death.

25Anisa did not testify. Like Marco, she argued that the Crown had failed to prove cause of death and that the homicide charges must fail on that ground alone. Also, like Marco, she argued that her mother’s evidence concerning injuries suffered by Paolo was false and should not be believed.

26Counsel for Anisa did not accept the contention that Paolo had been regularly abused during his life. He did, however, acknowledge in his submissions that the videotape of Paolo taken during the Florida trip about two weeks before his death showed significant bruising that was consistent with physical abuse. Counsel submitted that there was no evidence that Anisa had been involved in the abuse, knew of it, or failed to stop it. Counsel described Anisa as a young, poor, inexperienced, working mother who found herself in difficult circumstances with a young baby, and did her best to provide for and protect Paolo.

IV

The Grounds of Appeal

27The many grounds of appeal fall into four categories:

• the reasonableness of the verdicts;
• the evidentiary issues;
• the charge to the jury; and
• Dr. Smith’s evidence.

(i) The reasonableness of the verdicts

28The limited scope of factual review contemplated by s. 686(1)(a)(i) of the Criminal Code is well understood: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Marco’s argument as to the reasonableness of the verdicts is directed at the murder conviction only. Anisa argues that both convictions registered against her are unreasonable.

29Both appellants argue that the Crown failed to establish the cause of Paolo’s death and, therefore, the homicide-related convictions must be quashed as unreasonable.

30The Crown is not required to establish a medical cause of death in a homicide case, although it almost inevitably does so. Nor is the Crown required to demonstrate that a specific act or event caused the death, although the Crown usually attempts to do so. The Crown must prove that the death was caused by an unlawful act and that the accused is legally responsible for that act: R. v. Nette (2002), 2001 SCC 78, 158 C.C.C. (3d) 486 at para. 77 (S.C.C.).

31There was cogent, if not overwhelming, evidence that Paolo was a battered child and that Marco was his abuser. On the evidence, the jury could find that the physical abuse escalated during Paolo’s life and continued until very shortly before Paolo’s death. There was evidence that Paolo’s death was not the result of any disease process, natural causes (e.g. SIDS) or accidental trauma. Dr. Smith’s evidence indicated that his death was consistent with head trauma and/or asphyxia, both of which could occur as a result of an assault. On the totality of this evidence, a reasonable jury could conclude that the pattern of abuse of Paolo by Marco culminated in Paolo’s death at the hands of Marco. This finding was available even if the jury could not decide the exact nature of the final assault.

32Counsel for Marco also argued that it was unreasonable for the jury to place any weight on the medical opinion given by Dr. Smith. Counsel contended that the opinion was based entirely on the weight of Paolo’s brain and that Dr. Smith had to rely entirely on Dr. Chan for the accuracy of that brain weight. Counsel observes, quite accurately, that Dr. Chan made several errors in the course of his post-mortem examination and that Dr. Smith doubted his competency. Counsel submits that in light of Dr. Chan’s many errors and doubtful competence, no reasonable jury could have accepted that he accurately weighed Paolo’s brain. Absent an accurate brain weight, Dr. Smith’s evidence had no value.

33The reliability of Dr. Chan’s evidence was for the jury. They could accept parts of his evidence while at the same time rejecting other parts. It was reasonably open to the jury to conclude that Dr. Chan’s skills as a pathologist left much to be desired, while at the same time deciding that they could rely on his evidence concerning the weighing of the brain, a routine, straightforward procedure.

34Anisa’s contention that the verdict is unreasonable is essentially a re-argument of the position pressed before the jury. While there was some evidence that Anisa was a caring and attentive mother, that evidence was only part of the total evidentiary picture. The presence of some evidence pointing away from guilt does not make a finding of guilt unreasonable.

35The jury had to weigh the evidence of Anisa’s performance as a mother and her obvious love for Paolo along with the other evidence that strongly suggested that she knew that Marco was abusing Paolo and chose to support and protect her husband rather than trying to help her son.

36In the end, Anisa’s argument that the verdict was unreasonable goes no further than to suggest that another jury, acting reasonably, could have acquitted Anisa. Even if that submission were accepted, it falls short of demonstrating that the conviction was unreasonable.

(ii) The evidentiary issues

(a) The demeanour evidence

37The Crown led evidence from the emergency room physician that Marco appeared calm and uninterested when the physician was attending to Paolo in the emergency room in January 1993 when he suffered a fractured skull. No objection was taken to the admissibility of this evidence at trial. However, counsel now argues that it had no relevance and could only inflame the jury against Marco.

38The doctor’s observations were admissible for two reasons. First, the doctor testified that he had a clear recollection of this specific patient because of the very unusual reaction of the father. He was entitled to tell the jury why he could recall this patient from among the many patients he had examined. Second, the Crown relied on a statement that Marco gave to the physician describing the way Paolo had hurt himself. The Crown argued that the statement was false. The Crown was entitled to lead evidence that Marco was fully under control and in command of his emotions when he made what the Crown contended was a deliberately false statement.

39Although the evidence of Marco’s demeanour in the emergency room had some probative value for the reasons set out above, it is clear from the questions asked by Crown counsel that the Crown sought to establish that Marco was not behaving like a father would normally behave if his young child was in serious condition in the hospital. The Crown presumably offered this demeanour evidence to support its contention that Marco had assaulted his son.

40Demeanour evidence has been routinely admitted in criminal proceedings. It is now recognized, however, that the probative value of such evidence is in many circumstances more apparent than real. The problem with demeanour evidence is at least two-fold. First, it assumes that there is a “normal” range of reaction to highly stressful situations that is applicable to all individuals. Second, demeanour evidence assumes that outward appearance accurately reflects an individual’s state of mind or emotional state.

41Evidence of demeanour offered as evidence indicative of a state of mind must be received with caution: R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 at paras. 27-28 (Ont. C.A.). The circumstances surrounding the proffered evidence must be such as to make that evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an “unusual” reaction with a guilty mind.

42The treating physician had a great deal of experience observing parents who brought their young children to the hospital. On his evidence, Marco’s reaction was very unusual. I cannot say that the evidence had no probative value insofar as Marco’s state of mind was concerned. The trial judge was not asked to exclude the evidence on the basis that its potential prejudicial effect would have outweighed its probative value. Counsel has not convinced me that had the request been made, the trial judge would have been required to exclude the evidence.

43Counsel for the appellant also submitted that the evidence given by several witnesses that Marco did not appear emotional at Paolo’s funeral was wrongly admitted. I think this kind of demeanour evidence had no probative value. There is no norm against which Marco’s conduct at the funeral home could be meaningfully tested. Outward appearances at a funeral home offer no reliable barometer of one’s grief. This evidence should not have been heard by the jury.

44No objection was taken to the evidence and the trial judge made no reference to that evidence in his detailed instructions to the jury. I am satisfied that this evidence could not have had any effect on the verdicts.

(b) The alleged bad character evidence

45Counsel for Marco contends that the trial judge erred in admitting evidence that reflected badly on Marco’s character. This included evidence referring to Marco’s temper, his autocratic manner within the family, and his fastidiousness, especially as it related to his car and other personal belongings.

46Most of the evidence that the appellant describes as bad character evidence was relevant to establish the dynamics of the relationship between Marco and Anisa and Marco’s attitude towards Paolo. Some of the evidence, particularly evidence from Paolo’s grandmother, went beyond what was necessary for this purpose. Much of the grandmother’s evidence that could be criticized as going beyond what was necessary to establish the relationships within the family came out during her cross-examination. There was no objection by defence counsel. The absence of an objection is perhaps explained by the fact that her answers, some of which were not responsive to the questions asked, tended to support the defence contentions that the grandmother hated Marco and was slanting her evidence against him.

47Counsel for Marco at trial took the position that the grandmother’s attacks on Marco’s character were not relevant and should not be mentioned in the closing addresses by counsel or in the charge to the jury. The trial judge accepted this submission and no mention was made of that evidence in closing arguments or the instructions to the jury. To the extent that some evidence having no relevance and reflecting negatively on Marco’s character did seep into this trial, it was properly ignored by all parties.

(c) The admissibility of evidence of Marco Jr.’s injuries

48As outlined above (para. 7), the trial judge admitted evidence of certain injuries suffered by Marco Trotta Jr. about a year after Paolo’s death. The trial judge admitted the evidence, having determined that the jury could conclude that Marco Jr.’s injuries were inflicted by Marco. He held that if the jury came to that conclusion, it could assist them in determining whether Paolo’s injuries were the result of abuse at the hands of Marco. As he later explained to the jury:

[T]he evidence of what happened to baby Marco is introduced in an effort to support, and I underline support, to support the believability of the allegation that Marco Trotta inflicted lethal injuries on baby Paolo in a non accidental way.

49As I understand the trial judge’s reasons, he concluded that the evidence could assist the jury in assessing the credibility of the exculpatory explanations for the injuries offered by Marco and could establish a pattern of abusive conduct by Marco towards his infant children.

50Counsel for Marco contends that the evidence relating to Marco Jr. had no probative value and should have been excluded. Counsel reasons that the Crown was required to identify the act that caused Paolo’s death and adduce evidence connecting Marco to that act. Counsel submits that in the absence of evidence establishing a cause of death and connecting Marco to the fatal act, evidence that Marco assaulted Marco Jr. a year later could not advance the Crown’s case. This argument is essentially the appellant’s causation argument framed as an attack on the admissibility of the evidence relating to the injuries suffered by Marco Jr.

51For the reasons indicated above, I do not accept the basic premise of this argument. The Crown was not required to point to a specific act committed by Marco leading to Paolo’s death to meet its burden on the causation issue. The Crown could establish causation by demonstrating that Paolo was regularly abused during his short life and that his death was consistent with abuse and inconsistent with other possible explanations for his death. The trial judge correctly held that the evidence from which the jury could infer that Marco had assaulted his second son Marco Jr. could assist the jury in deciding whether he had also assaulted his first son Paolo. If, on the totality of the evidence, including the evidence pertaining to Marco Jr., the jury decided that Marco had regularly physically abused Paolo, this finding could provide evidence that Marco caused Paolo’s death even in the absence of evidence pointing to a specific assault by Marco leading to Paolo’s death.

52Counsel for Anisa argues that the trial judge erred in failing to tell the jury that the evidence concerning the injuries to Marco Jr. was not admissible against her. While the trial judge did not expressly tell the jury that the evidence had no value as against Anisa, he made it clear that the evidence was relevant only to the case against Marco. The trial judge vetted his proposed instruction in a pre-charge conference and counsel for Anisa agreed that the instruction was appropriate. No objection was taken after the charge. There is no reason to think that the jury could somehow have used evidence concerning the injuries to Marco Jr. against Anisa.

(iii) The charge to the jury

(a) The reasonable doubt instruction

53Counsel for the appellants contend that the instruction does not substantially comply with the requirements set out in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Counsel raises two objections. First, they contend that the trial judge did not tell the jury that a reasonable doubt may arise from the absence of evidence. Second, counsel submit that the trial judge did not comply with what they call the “certainty requirement” and should have instructed the jury that it must be sure of guilt before convicting.

54The trial judge did not tell the jury that a reasonable doubt could arise from the absence of evidence. He did, however, repeatedly tell the jury to weigh and consider all of the evidence and to apply the reasonable doubt standard to the sum effect of the evidence. He specifically told the jury that a reasonable doubt could arise from an inability to resolve reliability or credibility issues. These instructions would inevitably lead a jury to consider whether there were gaps or shortcomings in the evidence occasioned by the absence of evidence. The trial judge accomplished the purpose behind the “absence of evidence” instruction without using those specific words.

55As to the second alleged error, I would resist any reference to a “certainty principle” as animating any part of the reasonable doubt instruction. Certainty is not required. In any event, the trial judge did tell the jury that it could convict only if it was “sure” of the appellants’ guilt. In doing so, he used the very words used in Lifchus, supra.

56I see no error in the reasonable doubt instruction.

(b) The causation instruction

57Counsel for the appellants submit that the trial judge’s instructions on causation were wrong in several respects. They submit that the instructions left it open to the jury to find that Marco caused Paolo’s death if he assaulted Paolo during Paolo’s lifetime even if those assaults did not actually cause death. Counsel submit that the trial judge did not make it clear that the jury had to be satisfied that Paolo died as a result of a specific assault or assaults and that Marco had committed that assault or those assaults. Counsel point to the trial judge’s reference to assaults that clearly could not have caused death (e.g. pinches and slaps) in the course of his causation instruction to support their contention that the trial judge left the impression that a number of minor assaults could somehow cumulatively prove causation on the homicide charge.

58The causation instructions were not as focussed as they might have been. Parts of the instruction had little relevance to the facts as revealed by the evidence. The jury was repeatedly told, however, that the Crown had to prove that Marco had caused the death of Paolo by means of an unlawful act. In the course of discussing the causation requirement as it applied to the murder charge, the trial judge said:

The Crown need not prove the exact cause of death beyond a reasonable doubt. The Crown only need prove beyond a reasonable doubt that Marco Trotta, by his actions caused the death of Paolo Trotta.

I will deal with the third ingredient that the Crown must prove, and that is the Crown must prove that Marco Trotta caused the death of Paolo Trotta. Perhaps the best way to approach this third ingredient, the ingredient of causation, is to ask yourselves the following question. Would Paolo Trotta have died if Marco had not committed assaultive behaviour toward him? In other words, would Paolo’s death have occurred anyway even if Marco had not been assaultive towards him. The fact that Paolo died and that Marco committed assaultive behaviour toward him does not necessarily mean that his conduct was a cause of that death. On the other hand, you do not have to find the conduct of Marco Trotta to be the sole or principal cause of the death of Paolo. It is sufficient if you are convinced beyond a reasonable doubt that the conduct of Marco Trotta toward Paolo Trotta was at least a contributing cause of the death of Paolo provided it was more than an insignificant or trivial cause of that death [emphasis added].

59I read this instruction as an indication to the jury that it must find a “but for” causal link between an assault on Paolo by Marco and Paolo’s death, but it need not identify the nature of the assault beyond concluding that it was “assaultive conduct”. I think this is a correct instruction in the circumstances of this case.

60It may well have been better had the trial judge specifically distinguished between prior assaultive behaviour that did not cause death and assaultive behaviour that did cause death. The former could not satisfy the causation requirement, although it could provide evidence that Marco inflicted the fatal assault. I am satisfied, however, that by the end of the charge the jury knew that it could convict on the murder charge only if satisfied beyond a reasonable doubt both that Marco had assaulted Paolo, and that Paolo would not have died had he not been assaulted by Marco. On the evidence in this case, those findings would clearly satisfy the causation requirement for murder.

(c) The mens rea instruction

61Counsel submit that the trial judge misdirected the jury by telling them that the requisite intent for murder did not have to exist at the time of the commission of the act that caused Paolo’s death as long as it existed at some stage of the assaultive behaviour committed against Paolo by Marco.

62I cannot accept this submission. The passages referred to by counsel were intended to make it clear to the jury that if Marco assaulted Paolo with the requisite intent for murder, and Paolo died as a result of that assault, Marco was guilty of murder even if at some point in time before Paolo died Marco took steps to try and save Paolo’s life. This scenario was open on the evidence. Marco did call 911 and did take Paolo to the hospital.

(d) The instruction on after-the-fact conduct

63There was evidence from which the jury could infer that in their statements Marco and Anisa gave false explanations for some of the injuries suffered by Paolo during his life. For example, they tried to explain bruising on Paolo’s face when he was one or two months old by indicating that he had struck himself with his rattle. Expert evidence established that a baby of that age could not strike himself with sufficient force to cause bruising. There was also evidence from which the jury could infer that Marco lied about Paolo’s condition on the morning that Paolo died. Finally, there was evidence from which the jury could infer that Marco and Anisa gave false explanations for the injuries suffered by Marco Jr.

64If the jury concluded that Marco lied about the earlier injuries, it could consider those lies in determining whether Marco caused those injuries. If they concluded that Marco caused the earlier injuries, they could use that conclusion in determining whether he caused Paolo’s death. If the jury concluded that Marco lied about Paolo’s condition on the morning of his death, they could use that lie in determining whether Marco had caused Paolo’s death.

65If the jury concluded that Anisa had lied about the cause of the earlier injuries suffered by Paolo, they could use that conclusion in determining whether Anisa had failed in her duty to protect Paolo from harm by choosing to assist her husband in the cover-up of his assaults.

66If the jury concluded that Marco and Anisa had lied about Marco Jr.’s injuries, they could use that evidence in deciding whether Marco had assaulted Marco Jr., and whether Anisa was assisting her husband in covering up that assault. If the jury concluded that Marco assaulted Marco Jr. and that Anisa attempted to cover up that assault, the evidence could be used by the jury in determining whether they had done the same thing in respect of Paolo.

67The trial judge’s instruction on after-the-fact conduct did not refer to the specific inferences that could have been drawn from the evidence, and used the unfortunate phrase “guilty conscience”. It would have been more helpful had the trial judge explained to the jury how the various lies, if the jury found them to be lies, could be used in combination with other incriminatory evidence to draw the inferences I have described above.

68I am satisfied, however, that considering the charge and the recharge as a whole, the appellants received an unduly favourable instruction concerning the potential evidentiary use of their explanations for Paolo’s injuries should the jury conclude that those explanations were lies. In his recharge, the judge told the jury:

[I]f you do find lies, it is only the lies that happened after Paolo’s death, if you so find, that can be used to assist you in determining the innocence or guilt of Marco with respect to culpable homicide, as I explained before why it was only culpable homicide. And likewise for Anisa, if you find on the evidence any lies with respect, explanations, after the death of Paolo, then that evidence can be used only in relation to the criminal negligence causing death or the failure to provide necessaries [emphasis added].

69The recharge effectively neutered the evidence from which the jury could conclude that Marco and Anisa had lied about the earlier injuries suffered by Paolo. As explained above, those lies could provide circumstantial evidence going ultimately to identify Marco as the person who had caused Paolo’s death and to establish that Anisa had failed in her duty of care to Paolo. The instruction on after-the-fact conduct, although flawed, did not prejudice the appellants.

70The appellants also argue that the trial judge should have made it clear that any lies told in connection with Marco Jr.’s injuries had no relevance on the issues relating to the injuries suffered by Paolo. The trial judge did not give a separate instruction in relation to the alleged lies told about the injuries suffered by Marco Jr. Considering the instructions he did give on the evidence relating to Marco Jr., it is likely that the jury considered the evidence of the explanations offered for Marco Jr.’s injuries as part and parcel of the evidence relating to the injuries and, therefore, subject to the same limiting instruction.

71I also think that it would have been wrong for the trial judge to instruct the jury that if they concluded that the appellants had lied about Marco Jr.’s injuries, those lies could have no evidentiary value in considering their culpability for Paolo’s death. As explained above, if the appellants lied about Marco Jr.’s injuries, those lies could assist the Crown in establishing that Marco had caused Paolo’s injuries and death, and that Anisa had failed in her duty to protect Paolo from Marco’s abuse.

72In their last submission on the instructions pertaining to after-the-fact conduct, the appellants contend that the trial judge should have balanced the instructions concerning potentially incriminatory after-the-fact conduct with instructions on conduct which could support a “consciousness of innocence”. For example, counsel refer to the evidence that the appellants regularly took Paolo to doctor’s appointments and took him to the hospital in January when he suffered a head injury.

73The trial judge did deal with most, if not all, of the potentially exculpatory evidence at various times in the course of his jury instruction. He was not required to place it in a particular part of the instruction or to label it as evidence of “consciousness of innocence”.

(e) The instruction on the co-conspirator exception to the hearsay rule

74When Paolo suffered a skull fracture in January 1993, Anisa was at work and Marco was at home with Paolo. According to a co-worker, Anisa told her that Marco called Anisa and informed her that Paolo had been injured. The co-worker further testified that Anisa said that Marco had indicated that he had taken Paolo to the hospital. This conversation with the co-worker took place shortly after 10:00 p.m. The hospital records and the appellant’s statements established that Paolo was not taken to the hospital until shortly before 11:30 p.m.

75At trial, the Crown argued that the jury could conclude that Anisa had deliberately lied to her co-worker when she said that Paolo had been taken to the hospital shortly after 10:00 p.m. As I understand it, it was the Crown’s position that this lie was told to cover up the fact that Paolo was not taken to the hospital until Anisa went home and spoke with Marco so that the two of them could get their stories straight before going to the hospital. The Crown argued that the statement to the co-worker was somehow a statement in furtherance of a conspiracy to cover up the truth about Paolo’s injuries, and was, therefore, admissible against Marco as well as against Anisa.

76The Crown’s position on this evidence is problematic for several reasons. I can find no evidence from which a jury could infer that Anisa was deliberately lying to her co-worker. On the evidence, Anisa was not at home and did not know where Paolo was. She was reporting what she had been told by Marco. More fundamentally, I cannot understand how the statement to the co-worker could further a conspiracy to cover up Paolo’s injuries. To the contrary, the statement was evidence that the appellants were aware of Paolo’s injuries an hour and a half before they took him to the hospital. I do not see how it furthered the cover-up to lead the co-worker to believe that Paolo had already been taken to the hospital.

77This evidence had very little, if any, probative value insofar as any conspiracy to cover up Paolo’s injuries was concerned. The request for an instruction on the co-conspirator exception to the hearsay rule very much made a mountain out of this evidentiary molehill.

78The trial judge gave the co-conspirator instruction. The instruction, including the recharge, was incomplete, inaccurate and confusing. In the end, it caused no prejudice to the appellants. The final words heard by the jury effectively made the evidence, if accepted by the jury, redundant. The trial judge said:

You have to be satisfied on all the tests, all the steps, of that test that there is conspiracy, that Marco Trotta is probably a member of the conspiracy, and then if you are satisfied with that, you have to be further satisfied that he is, beyond a reasonable doubt, a member of that conspiracy, and then and only then can any statement he made to someone else as reported by Anisa be used against him in furtherance of that conspiracy [emphasis added].

79On this instruction, the jury would use Anisa’s statement to her co-worker against Marco only after they were satisfied beyond a reasonable doubt that Marco and Anisa were engaged in a conspiracy to cover up the injuries suffered by Paolo. If the jury had gone that far, the statement to the co-worker had no added value.

(f) The trial judge’s allegedly inflammatory remarks

80The appellants submit that in the course of his instructions, the trial judge made various comments that interfered with the jury’s ability to assess the evidence in a dispassionate and objective manner. Counsel contend that the trial judge invited the jury to take Paolo’s plight into account in determining their verdicts.

81I agree that one comment made by the trial judge was inappropriate. Near the end of his instructions, after referring to Paolo’s “short and tragic” life and the injuries he had suffered, the trial judge said:

And if you find that the cause of his death was non accidental then he [Paolo] was failed and he deserves more.

82No one would quarrel with the sentiment expressed by the trial judge. That sentiment, however, had no place in his instructions or in the jury deliberations. It is unfortunate that as the trial judge approached the end of his instructions, he used language that could undermine the dispassionate objectivity needed in the jury room.

83The trial judge, however, clearly told the jury that their verdicts must be based on an application of the legal principles he gave them to the facts as they found them after an assessment of the evidence. I do not think that this one unfortunate remark would detract from the jury’s ability to render verdicts based exclusively on a full and careful assessment of the evidence.

(iv) Dr. Smith’s evidence

84Dr. Smith, the forensic pathologist who performed the second post mortem examination, gave evidence that was important to both the Crown and the defence at trial. All counsel spent considerable time reviewing his evidence in their closing submissions. No counsel suggested that Dr. Smith could offer a definitive opinion as to the cause of Paolo’s death. The Crown relied on his evidence to eliminate certain possibilities (e.g. disease and SIDS) and to point to the most likely possibilities, head trauma and/or asphyxiation. The Crown contended that when Dr. Smith’s evidence was put with the rest of the evidence of ongoing abuse, the resulting “big picture” left no doubt that Paolo died at the hands of his father.

85The defence relied on Dr. Smith’s evidence to support three contentions. First, the defence relied on Dr. Smith’s ultimate opinion that the cause of death could not be determined. Second, the defence relied on Dr. Smith to support the contention that Paolo’s death could not be attributed to any of the specific injuries he suffered and, particularly, could not be attributed to the skull fracture suffered shortly before his death. Third, the defence relied on Dr. Smith to undermine the reliability of any of the observations made by Dr. Chan. This was important to the defence because Dr. Smith relied on one of those observations, the weight of the brain, in advancing his opinions.

86In keeping with his approach to all of the evidence, the trial judge did not review Dr. Smith’s evidence in any detail. He did tell the jury that:

Dr. Smith’s opinion, based on the weight of baby Paolo’s brain, was that the death was caused by brain edema; there was a component of asphyxiation; and he said there is a combination of both, that is, the skull fracture plus asphyxiation. If you accept Dr. Chan’s evidence then you can conclude that the cause of death is in accordance with Dr. Smith’s opinion, if you so find [emphasis added].

87I agree with counsel for the appellants’ contention that Dr. Smith did not describe brain edema as a cause of death, but rather referred to it as a pathological finding that assisted in identifying potential causes of death. Dr. Smith made it clear in his report and his evidence, and counsel made it clear in their review of his evidence, that Dr. Smith could not offer an opinion as to a definitive cause of death.

88The remainder of the trial judge’s brief description of Dr. Smith’s evidence is accurate. He did stress that Dr. Smith’s opinion concerning the possible significance of brain edema in determining the cause of death was dependent entirely on the accuracy of Dr. Chan’s observations with respect to the weight of the brain. This was an important part of the defence position.

89A factual error by a trial judge in his review of the evidence for the jury is not necessarily fatal. Indeed, in most cases, that kind of error will not be cause for appellate intervention. Juries are routinely told, as this jury was told, that it is their recollection of the evidence and not the trial judge’s recollection that must govern during deliberations.

90Where a judge makes a factual error in the course of the review of the evidence, the question on appeal must be whether the error has occasioned a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code. A factual error in the review of the evidence will occasion a miscarriage of justice if there is a serious risk that the error will mislead the jury and undermine the reliability of the verdict. The nature of the factual error made by the trial judge and the significance of the evidence in respect of which the error was made are important considerations in determining whether the error has occasioned a miscarriage of justice. It is also important to consider what the evidence actually was. If the factual error made by the trial judge tended to weaken the potential probative force of the evidence for the Crown, I do not think an accused can complain that the factual error occasioned a miscarriage of justice.

91The factual error made by the trial judge in his review of Dr. Smith’s evidence was significant. The error related to an important part of the evidence given by an important witness. The trial judge also repeated the error on one other occasion in the course of his instructions. I am satisfied, however, that an accurate summary of Dr. Smith’s evidence relating to potential causes of death could not have materially assisted the defence.

92An accurate review of Dr. Smith’s evidence would have reminded the jury that he excluded disease and natural causes as possible explanations for Paolo’s death and based on the information provided by the appellants’ own statements, he saw no evidence of an accidental cause of Paolo’s death. On Dr. Smith’s evidence, Paolo was a battered child who had suffered a skull fracture shortly before his death and who, if Dr. Chan had properly weighed the brain, had brain edema consistent with head trauma at the time of his death. If the jury accepted the brain weight as recorded by Dr. Chan, Dr. Smith’s evidence, while it did not identify a specific cause of death, offered little that could assist the appellants.

93In determining the significance of the error made by the trial judge, it is helpful to consider the objections made by counsel. Both defence counsel objected to the treatment of Dr. Smith’s evidence. They did not, however, object to the trial judge’s description of Dr. Smith’s opinion concerning the cause of death. Counsel for Marco argued that the trial judge should have reviewed the parts of Dr. Smith’s evidence which tended to point away from head trauma as a cause of death. Most of this evidence related to the absence of certain symptoms in the observations of Dr. Chan at the first autopsy. Counsel for Anisa embraced the trial judge’s description of Dr. Smith’s opinion concerning the cause of death. He argued, however, that as a matter of law, the jury should be told that it could convict only if it was satisfied beyond a reasonable doubt that Paolo’s death had been caused by one of the two possibilities suggested by Dr. Smith. The objections framed by counsel immediately after they heard the trial judge’s review of Dr. Smith’s evidence suggest to me that the trial judge’s mis-description of Dr. Smith’s evidence did not prejudice the defence.

94Counsel for the appellants also submitted that Dr. Smith effectively “reversed the onus of proof” when in the course of his evidence he suggested that absent some explanation, he assumed that Paolo’s death was not the result of an accident.

95The jury took its instructions as to the burden of proof from the trial judge and not from the manner in which Dr. Smith chose to frame his opinion. The jury were properly instructed on the burden of proof. I understand the impugned answer given by Dr. Smith to amount to nothing more than an indication that, based on the information he had been provided with, there was no reason to think that Paolo’s death was the result of an accident. Indeed, counsel for Anisa, in his objections to the charge, openly acknowledged that the injuries were inconsistent with accident. In referring to Dr. Smith’s evidence, counsel said:

What he said was that the injuries that he saw were inconsistent with accident. I have no problem with that and I don’t think the jury is going to have any problem with that. That third skull fracture and the bruising was not accidental.

96Counsel for the appellants next argued that Dr. Smith used graphic and potentially prejudicial language in describing the possible ways in which Paolo had died by strangulation. The descriptions provided by Dr. Smith were vivid and detailed. They were also unnecessary and speculative. Had there been any objection to them, I think the trial judge would have stopped Dr. Smith from proceeding with that part of his evidence. There was no objection. I see no chance that the jury would be so inflamed by the detail in these hypothetical examples given by Dr. Smith that it would not render a verdict based on an objective assessment of the evidence. The potential impact of the hypotheticals given by Dr. Smith was certainly no greater than the potential impact of the actual facts of this case. I cannot accept that a jury who must be relied on to assess the actual facts objectively, would be led astray by the hypotheticals described by Dr. Smith.

97The appellants also submit that the trial judge failed to review the evidence of Dr. Smith that was favourable to the defence position. The trial judge’s review of Dr. Smith’s evidence could have been more detailed. It was, however, even-handed. In their closings, all counsel had reviewed Dr. Smith’s evidence and placed it in the context of their respective positions. I cannot say that the jury did not have an adequate appreciation of his evidence.

V

98There will never be a perfect trial. There were mistakes made in this trial, but it was a fair trial. I am also satisfied that the errors could not have had any effect on the result. The Crown presented overwhelming evidence to support its contention that Paolo was abused by his father throughout his brief life. The evidence that Anisa knew of this abuse and attempted to hide it from the authorities was equally strong. Given the expert evidence heard at the trial, it seems to me inevitable that a jury would link the ongoing abuse of Paolo by Marco with his death. Once that link was made, the verdicts were virtually inevitable.

99I would dismiss the appeals.

RELEASED: “DD” “OCT 28 2004”

“Doherty J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Janet Simmons J.A.”

• There was a non-publication order in respect of the identity of the appellant’s children made at trial. The Crown does not seek an extension of that order.