COURT OF APPEAL FOR ONTARIO

DATE: 2002-09-23 DOCKET: C33751

RE: HER MAJESTY THE QUEEN (Respondent) –and– DAVID RUSSELL SMEETON (Appellant)

BEFORE: CATZMAN, LASKIN and GOUDGE JJ.A.

COUNSEL: Marie Henein, for the appellant Thomas D. Galligan, for the respondent

HEARD: September 9, 2002

On appeal from the conviction imposed by Justice Kenneth G. Ouellette of the Superior Court of Justice, sitting without a jury, dated June 21, 1999.

E N D O R S E M E N T

[1] The appellant appeals his conviction for manslaughter after a trial before Ouellette J. He has served his sentence.

[2] The appellant, a bouncer at the Windsor Music Café, punched the victim, Kevin Ferris, in the head in the early morning of March 29, 1998. Mr. Ferris suffered an epidural hemorrhage and died approximately 14 hours after he was hit.

[3] The appellant makes three submissions on his appeal:

1. The trial judge erred in refusing to consider the defence of self-defence;
2. The trial judge erred in concluding that the Crown had proved causation beyond a reasonable doubt; and
3. The verdict was unreasonable.

[4] We do not agree with any of these submissions and, therefore, dismiss the appeal.

1. Self-defence

[5] The appellant advanced a defence of self-defence but the trial judge concluded that it had no air of reality. He said:

Mr. Smeeton was the sole aggressor in this incident and as the Crown has indicated intended to teach Mr. Ferris a lesson for the previous night’s theft. And, although Mr. Smeeton has denied that statement, I accept the evidence of Mr. Gignac, a bartender where Mr. Smeeton worked as a bouncer that immediately after punching Mr. Ferris, Mr. Smeeton said: “that’s what you get for stealing from us. Don’t steal from us again.” And that is even though this evidence was first given by Mr. Gignac at this trial.

… there being no air of reality upon the whole of the evidence to a defence of either self defence or of provocation.

[6] The appellant submits that the trial judge’s analysis was flawed for two reasons: he did not take into account that the incident was coloured by what had occurred the previous day and he did not fairly appreciate Mr. Ferris’ move toward the appellant, which led to the punch. Dealing with the latter point first, the trial judge characterized Mr. Ferris’ move as “minor and not aggressive.” On the evidence, we see no error in that characterization.

[7] On the first point, despite what occurred the previous day, the evidence overwhelmingly supported the trial judge’s conclusion that the appellant’s claim of self-defence was without merit. That evidence included the following:

• The appellant was a trained bouncer and when the incident occurred he was sober; by contrast, Mr. Ferris was drunk and wobbly;
• The appellant manœuvered Mr. Ferris so that he had his back against the wall, while the appellant’s back was to the sidewalk, giving him an escape;
• The appellant was surrounded by several of his friends;
• Mr. Ferris’ hands were at his side, perhaps even in his pockets;
• The appellant did not suggest in his evidence that he thought Mr. Ferris was going to hit him; and
• After the punch, the appellant said words to the effect that he was teaching Mr. Ferris a lesson for having stolen goods from a co-worker the evening before.

[8] For these reasons, we do not give effect to this first ground of appeal.

2. & 3. Causation and Unreasonable Verdict

[9] The appellant’s second and third grounds of appeal are related. He contends that the Crown did not prove beyond a reasonable doubt that his punch caused the fracture, which in turn resulted in Mr. Ferris’ death. He, therefore, submits that the verdict of guilt was unreasonable.

[10] The appellant points out that Mr. Ferris had several other unexplained injuries; that the medical experts could not say with certainty that the appellant’s punch caused Mr. Ferris’ death; and that, according to one witness, Mr. Gignac, after being punched, Mr. Ferris fell straight backwards striking the back of his head on the pavement, which was not consistent with the fracture on the right side of his head.

[11] The trial judge, however, rejected Mr. Gignac’s evidence and the defence’s position because they were inconsistent with the physical evidence. The trial judge instead concluded:

While a number of possibilities were put to each doctor and while each such possibility could not be completely ruled out by each doctor both agreed to the cause of death of Mr. Ferris being as I’ve indicated to be the summary of doctor Ra’s opinion. And I accept their respective reasons and conclusions as to the cause of death.

It was the defence position that I should accept the evidence of the lay witnesses that after receiving the blow to the head Mr. Ferris fell straight back hitting the back of his head and not the right side of his head on the pavement. I reject that position because as the Crown has pointed out the medical evidence discloses that Mr. Ferris sustained no bruising, abrasions or other injuries to the back of his head.

And,

While the medical experts did not speak with absolute certainty this Court is satisfied that on a consideration of all the evidence the Crown has proven beyond a reasonable doubt that the punch by Mr. Smeeton to Mr. Ferris if not the sole cause was at least a contributing cause of the death of Kevin Ferris as outlined in the summary of doctor Ra’s opinion which is outside the de minimis range, and, therefore, David Smeeton is found guilty of manslaughter as charged in the indictment.

[12] In our view, the trial judge’s conclusion was reasonable. Indeed, we do not see how he could have concluded otherwise on the record before him. The absence of an injury to the back of Mr. Ferris’ head, though perhaps not conclusive, was strong evidence that he did not hit his head there after being punched by the appellant. Both medical experts, Dr. Deck and Dr. Ra, testified that Mr. Ferris’ injuries indicated a fall backwards with a heavy impact on the right side of the head. Moreover, Dr. Deck had little doubt that the appellant’s punch had caused these injuries. He testified:

And it is my strong suspicion that a blow delivered directly to the left side of the mouth may well have been associated with a fall backwards striking the right side of the head and, therefore, this may well be an injury that goes some distance in explaining how the injury to the head may have been sustained.

It’s clear that there was an instant at which an impact occurred to the right side of the head causing the crack, the fracture of the skull and starting the bleeding that ultimately caused death.

[13] Finally, the evidence of one eyewitness, Mr. Croton, supported the expert evidence that, after being punched by the appellant, Mr. Ferris hit his head on the right side. We, thus, do not give effect to these two grounds of appeal.

[14] The appeal is accordingly dismissed.

Signed: “M.A. Catzman J.A.” “J.I. Laskin J.A.” “S.T. Goudge J.A.”