COURT OF APPEAL FOR ONTARIO

DATE: 20000920

DOCKET: C29045

FINLAYSON, GOUDGE and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) T. E. Breen

) for the appellant

(Respondent) )

–and– ) Beverly A. Brown

) for the respondent

EDWARD SCOTT PENGELLY )

(Appellant) )

) Heard: August 8, 2000

On appeal from the conviction imposed by The Honourable Mr. Justice Nick Borkovich, sitting with a jury, dated July 7, 1997.

FINLAYSON J.A.:

[1] The appellant was convicted by a jury presided over by Borkovich J. of the first degree murder of Laurie Jean Vale. He appeals his conviction.

Overview of the facts

[2] The victim, Laurie, was the two-and-a-half year old daughter of Colleen Radford. She was the youngest of three children. Colleen was the girlfriend of the appellant and was expecting a fourth child. She had made arrangements with her mother to look after her oldest child when she went into the hospital to deliver her new child. The appellant was to look after the other two children including Laurie. However, Colleen went into labour early and unfortunately her new baby developed pneumonia. Mother and child were required to stay in the hospital longer than expected. For a variety of reasons related in part to the change in scheduling for the hospital visit, the appellant ended up looking after Laurie only. She was in his care and staying at his apartment from Monday, August 14 through Thursday, August 17, 1995.

[3] At 4:16 in the early morning of August 17, the police and paramedics responded to a 9-1-1 call from the appellant. When they arrived, Laurie was not breathing. Attempts to revive her were not successful. She was taken to the hospital where she was pronounced dead at 5:16 a.m. Dr. Chitra Rao, qualified to give expert testimony in forensic pathology, estimated that the time of death was approximately 11:00 p.m. or earlier on Wednesday evening. The cause of death was determined to be subdural and subarachnoid hemorrhaging caused by blunt force trauma to the head, consistent with open hand slaps. This resulted in swelling to the brain affecting the area of the brain that controls cardiac and breathing functions.

[4] As stated in the appellant's factum, at the outset of his trial, he acknowledged that he had sexually assaulted Laurie before causing her death. The only issues at trial were:

1. Did the appellant act with the requisite intent for murder?

2. If so, did the sexual assault form part of the fatal transaction so as to make the killing first degree murder?

Issues

2. Did the trial judge adequately instruct the jury with respect to the requisite intent for murder?

3. Did the trial judge err in failing to permit an offence-based challenge for cause?

Analysis

Issue 1: Jury instruction with respect to the requisite intent for murder

[5] The essence of the complaint of the appellant in this court was that the trial judge’s charge to the jury on the issue of intent was inadequate. It was submitted that there was little evidence to show that the appellant had the requisite intent to cause bodily harm to Laurie within the meaning of s.229(a)(ii) of the Criminal Code i.e. he meant to cause bodily harm that he knew or ought to have known was likely to cause death and was reckless as to whether death ensued or not. It was submitted that under these circumstances the trial judge had a responsibility to isolate the appellant’s appreciation of the consequences of his actions as they related to the evidence on this issue.

[6] There was an abundance of evidence to support the requisite intent. The results of the autopsy are by themselves compelling. Dr. Rao noted numerous trauma injuries on the child, and in some cases fresh injuries were superimposed on old bruises. Her evidence is fairly summarized in the respondent’s factum as follows:

Evidence of Blunt Force Trauma to the Head

• reddish discolouration from mid-front of the left ear all along the side forehead to the right ear

• reflecting the skin uncovered bruising over the left forehead region, around the left eye and the front of the left ear indicating blunt force injury to the face, with similar bruising on the front of the right ear

• the back of her head felt boggy as a result of the fluid accumulations under the skin

• a focal area of bruising within the fatty tissue surrounding the left eye was found and attributed to the brain injury

• a focal area of bruising where the optic nerves takes off from the right eye

• a band like bruise over the top of the left eyelid

• band-like bruising over left forehead region with associated swelling

• lesions on top of the head

• marked bruising and haemorrhage at the sides, back and front of the head when the scalp was reflected

Injuries near the Ear Area (Trauma, Pinching, Hairpulling)

• tissue swelling in front of the left ear

• small, minute abrasions along the outer border of the left ear consistent with pinch marks

• an abrasion at the back of pinna on left ear

• a small lesion around the right ear

• pinch marks on the front and back of the right ear

• haemorrhage into the musculature around ears on both sides

• bruising at the back of the left ear close to the attachment to the scalp consistent with receiving a blow there

• three bands of bruising behind the left ear

• bruising in front of left ear at lobule measuring 3.5 cm x 4 cm

• a bald spot at the right side of the head just right of the mid-line, consistent with prior pulling of hair

• a bald patch on the left side with bruising and marked swelling

• discolouring of the scalp due to bleeding just underneath the skin of the scalp as a result of the hair-pulling

• haematomas under the scalp corresponding to the bald patches

Brain Injuries

• fresh haemorrhage underneath the brain's protective membrane on the left side covering the entire left cerebral hemisphere

• haemorrhage on left side of brain surface

• swelling of the brain (more marked on the right side) – a secondary response to a blunt force injury

• brain displacement as a result of swelling

Secondary Internal Injuries Attributed to the Brain Injury

• heavy lungs - indicating haemorrhage into the tissue as a result of the brain injury

• blood on the child's mouth and nose - a result of small blood vessels in the lungs rupturing and the child vomiting the resulting pinkish fluid

Injuries to the Buttocks and Genitals

• multiple bands of bruising on the buttocks which were more marked on the left side, and consistent with open-handed slaps

• faint bruising on the left side of the labia majora measuring 3 cm x 0.8 cm and bruising on the right side of labia majoria 0.4 cm - both attributed to a blunt force injury such as rubbing.

[7] Moreover, the evidence led by the defence was of little assistance to the appellant. The defence brought out in cross-examination of Dr. Rao that the mechanism of death was similar to what is described as “shaken baby syndrome”. Dr. Rao explained that in infant children the brain is relatively large and the musculature of the neck is weak. Children lack the experience to resist a blow and are particularly vulnerable to brain injury from trauma to the head.

[8] The appellant's testimony was also very damning. He admitted sexually assaulting Laurie by inserting his penis in her mouth. He eventually became disgusted with himself and stopped. Feeling guilty about what he had done to Laurie, the appellant tried to cheer her up by bouncing her on his knee. After about a minute of playing "horsey", Laurie urinated on his leg. The appellant testified that he became angry, put Laurie down on the floor and slapped her with both hands about the head. He testified that he struck her from five to twenty times. He knocked her down three or four times and pulled her to her feet by lifting her off the ground by her hair.

[9] The appellant’s defence was that he was acting in a rage, and because of his inexperience in child care he was not conscious of how much force he had used. The appellant only intended to punish Laurie but not to hurt her or cause her death.

[10] The appellant also submitted that the trial judge failed to instruct the jury to disregard the portion of Dr. Rao's testimony that analogized the degree of force used by the appellant to that of a twelve story fall or a major motor vehicle accident. It was submitted that the expert had strayed beyond her field of expertise with the analogies and that the testimony should be inadmissible. They are not inadmissible. Any objection to these analogues goes only to weight and it was up to defence counsel to deal with the analogies either in cross-examination or in closing submissions or both.

[11] I can find no reversible error in the instruction of the trial judge. I repeat what was said by Major J. in R. v. Malott (1998), 1998 845 (SCC), 121 C.C.C. (3d) 456 at 463 (S.C.C.):

A jury charge should provide the jurors with an understanding of their role as triers of fact and the essence of the case before them. See Azoulay v. The Queen, 1952 4 (SCC), [1952] 2 S.C.R. 495, 104 C.C.C. 97, per Taschereau J. at pp. 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

Canadian jurisprudence is plain that a standard of perfection is not the test when an appellate court reviews a jury charge. R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1, 143 D.L.R. (4^th^) 433, confirmed that while accused persons are entitled to properly instructed juries, there is no requirement that a jury be perfectly instructed. A standard of perfection would be unattainable in most cases. Some have described a jury charge as an art rather than a science.

[12] I am satisfied that the charge with respect to whether the assaults of the appellant amounted to culpable homicide was more than adequate with respect to the facts of this case.

[13] The Crown sought to elevate the culpable homicide to first degree murder by relying on the admitted sexual assault and a combination of ss.230 and 231 of the Code.

s. 230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit…an offence mentioned in…section 271 (sexual assault) . . . whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(ii) (ii) facilitating the commission of the offence,

s. 231.(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(b) section 271 (sexual assault)

[14] The position of the defence is that the timing of his version of when the assault took place and the bodily harm he inflicted on the victim preclude a finding that the murder occurred while he was committing the sexual assault. However this was a matter for the jury. Counsel on appeal conceded that the trial judge had charged the jury in accordance with R. v. Paré (1987), 1987 1 (SCC), 38 C.C.C. (3d) 97 (S.C.C.). There, Wilson J. stated at p.105:

… In R. v. Stevens, supra, [ (1984), 1984 3481 (ON CA), 11 C.C.C. (3d) 518 (Ont. C.A.) leave to appeal refused] another case of rape and murder, Martin J.A. held that there was sufficient evidence on which a jury could conclude that the murder took place during the commission of an indecent assault. He went on, however, to make some interesting comments on the interpretation of the words “while committing” in s. 214(5). At p. 541 he states:

Thus, it appears clear that where death is caused after the underlying offence is complete and the act causing death is committed for the purpose of facilitating the flight of the offender, the murder is not under ss. 213 and 214(5)(b) first degree murder.

I do not wish, however, to be taken as holding that where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction, that death would not be caused during the commission of the offence, even though the underlying offence in s. 213 in a sense could be said to be then complete.

Issue 2: Failure to permit an offence-based challenge for cause

[15] The appellant submits that the trial judge should have permitted a challenge for cause based on the facts of this case wherein the appellant sexually assaulted and beat a young child entrusted to his care. The facts of this case are most disturbing and would offend the sensibilities of the public in general. However, this court in R. v. Betker (1997), 1997 1902 (ON CA), 115 C.C.C. (3d) 421 has held that the trial judge should not permit such a challenge where there is no evidence of a connection between a potential juror’s views about a particular crime and prejudice against a particular accused. There is a distinction between a want of indifference towards the accused and a want of indifference towards the nature of the crime.

[16] In Betker, supra Moldaver J.A. endorsed the appropriate way to deal with this problem in the following words at p. 443:

That said, I readily acknowledge that there may be some prospective jurors, who, by virtue of their own victimization, remain psychologically scarred and traumatized. To require such individuals to relive the horror of their own personal experiences through the eyes of another complainant would be nothing short of inhuman. The same holds true for those closely associated with such victims.

In order to avoid this, trial judges would be well advised to alert the entire panel to the nature of the charges and invite those prospective jurors who would find it too difficult to sit as a juror to identify themselves. Once identified, the prospective juror should be excused on account of personal hardship in accordance with s. 632(c) of the Criminal Code. No follow-up questioning should be undertaken as this could lead to unnecessary and unwarranted embarrassment.

[17] The appellant suggested that it would have been more appropriate to have the trial judge deal with jurors who had a difficulty with the facts of the case in the absence of the jury pool. He offered as fresh evidence an associate trial counsel's account of the emotional responses of individual jurors seeking to be excused to questions from the trial judge. The suggestion was that the emotion could be contagious. I would not admit this fresh evidence. The manner of dealing with the suggestions of this court in Betker was solely a matter for the trial judge.

[18] The appellant argued that Betker had implicitly been overruled by the Supreme Court of Canada in R. v. Williams (1998), 1998 782 (SCC), 124 C.C.C. (3d) 481 (S.C.C.). I do not agree. This court has said as much in considering the issue of offence-based challenge for cause subsequent to Williams in R. v. K(A) (1999), 1999 3793 (ON CA), 137 C.C.C.(3d) 225 at 243-47(Ont. C.A.) and R. v. Find (1999), 1999 2270 (ON CA), 126 O.A.C. 261.

[19] For these reasons I would dismiss the appeal.

Released: SEP 20 2000 Signed: “G.D. Finlayson J.A.”

GDF “I agree S.T. Goudge J.A.”

“I agree K. Feldman J.A.”