CITATION: R. v. Talbot, 2007 ONCA 81
DATE: 20070208
DOCKET: C42030
COURT OF APPEAL FOR ONTARIO
DOHERTY, LASKIN and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
David Lepofsky for the appellant
Appellant
- and -
TYSON TALBOT
Anil Kapoor and Lindsay Daviau
for the respondent
Respondent
Heard: December 4, 2006
On appeal from the acquittal entered by a jury presided over by Justice Gloria Epstein of the Superior Court of Justice dated June 4, 2004.
DOHERTY J.A.:
[1] The respondent killed Christopher Shelton and was charged with second degree murder. He testified and claimed that he acted in self defence. The jury acquitted. The Crown appeals alleging that the trial judge erred in ruling that the Crown would not be permitted to cross-examine the respondent on some of the entries in his extensive criminal record. The Crown also alleges several errors by the trial judge in her instructions to the jury.
[2] I would dismiss the appeal. The trial judge’s ruling as to the scope of the Crown’s cross-examination of the respondent on his criminal record reveals no error in law. While I agree with the Crown’s submission that the trial judge erred in her instructions concerning what I will refer to as the “one transaction” issue, I am satisfied that the error could not have had any effect on the verdict.
I
(a) The Homicide
[3] The respondent and Mr. Shelton did not know each other before the night of Mr. Shelton’s death. By chance, the respondent and two female friends who had been out on the town arrived at the Golden Embassy restaurant in Toronto at the same time (about 2:30 a.m.) as Mr. Shelton and his friends, Mr. Trevor Mitchell and Mr. Darryl Sharpe. Mr. Shelton and his friends had also been out on the town that evening. Everyone had been drinking.
[4] The respondent was thirty years old and is a well built man. Mr. Shelton and his two friends were in their early twenties (between twenty and twenty-three). They were all big men, especially Mr. Shelton, who stood six feet three inches and weighed 228 pounds.
[5] As the respondent and his two female friends entered the restaurant, Mr. Shelton made a relatively innocuous remark to one of the women. According to Mr. Mitchell and Mr. Sharpe, the respondent and Mr. Shelton exchanged words. They testified that this exchange did not seem particularly threatening. The respondent testified that he was aware of an exchange between his two friends and a group of men as they entered the restaurant, but that he paid little attention to it. The respondent said that he did not speak to Mr. Shelton.
[6] The two groups were seated separately in the restaurant. Everyone was having something to eat and there was no interaction between the two groups. There was conflicting evidence as to whether the respondent seemed agitated while in the restaurant. Shortly after 3:00 a.m., the respondent left the restaurant to go to a bank machine. He returned to the restaurant, but left again shortly afterwards. While he was outside the second time, Mr. Shelton and his friends finished their meal and left the restaurant.
[7] It was common ground that an altercation ensued during which the respondent struck Mr. Shelton in the face with a single punch. Mr. Shelton fell straight backwards and his head struck the pavement with a loud thud. It was also common ground that about thirty seconds to one minute after the respondent punched Mr. Shelton, the respondent kicked him while he was lying on the ground. There was considerable dispute as to the force of the kick.
[8] Although there was agreement that the respondent punched and kicked Mr. Shelton and that his actions caused Mr. Shelton’s death, there were two very different versions of the relevant circumstances placed before the jury. According to Mr. Mitchell, he and Mr. Shelton were accosted by the respondent outside of the restaurant. It was the theory of the Crown that the respondent was upset because of the exchange between Mr. Shelton and the respondent’s friends when they entered the restaurant.
[9] Mr. Mitchell testified that the respondent immediately became verbally abusive and that Mr. Mitchell and Mr. Shelton did their best to calm him down. Mr. Mitchell testified that “out of the blue”, the respondent “blindsided” Mr. Shelton with a vicious upper-cut punch, knocking him to the ground. Mr. Shelton appeared to be unconscious before he hit the ground as he did nothing to break his fall. His head struck the pavement violently.
[10] After Mr. Shelton fell to the ground, the respondent remained belligerent and challenged Mr. Mitchell to a fight. According to Mr. Mitchell, about thirty seconds after the punch, the respondent walked over to Mr. Shelton’s body and stomped on his head with his foot. Mr. Mitchell testified that the respondent raised his knee to belt level and brought his foot down with terrific force on Mr. Shelton’s face.
[11] Mr. Sharpe, Mr. Shelton’s other friend, was not present during the initial altercation involving Mr. Mitchell, Mr. Shelton and the respondent. He did, however, see the respondent “sucker punch” Mr. Shelton. According to Mr. Sharpe, Mr. Shelton was not ready for the punch and did nothing to defend himself. Mr. Shelton fell straight backwards with his arms at his sides. His head banged loudly on the pavement. Mr. Shelton did not move once he hit the ground.
[12] Mr. Sharpe testified that the respondent offered to continue the fight. Less than a minute after he had punched Mr. Shelton, he returned to where Mr. Shelton was lying and kicked or stomped on his head. Mr. Sharpe did not see the respondent after this.
[13] The respondent testified that he was outside getting some fresh air and walked by Mr. Shelton and Mr. Sharpe. All of a sudden, Mr. Mitchell appeared out of nowhere and began to speak to him in a verbally abusive manner. The respondent said he replied in an abusive manner and stepped back away from Mr. Mitchell. Mr. Mitchell came towards him. Mr. Shelton and Mr. Sharpe were standing shoulder-to-shoulder with Mr. Mitchell so that the three were standing in front of the respondent in what he took to be a threatening posture. The respondent believed that if he tried to walk away at this point, he would be jumped by the three men, so he stood his ground and continued to exchange profanities with Mr. Mitchell.
[14] According to the respondent, Mr. Mitchell said to him, “We’ll kick your fucking ass”. The respondent replied, “Oh really”. He then hit Mr. Shelton. The respondent testified that he punched Mr. Shelton to make the three men back away from him. Mr. Shelton was standing closest to him. He described the punch as a forceful, straight left hand aimed in the direction of Mr. Shelton. The respondent could not recall who said what in the moments before he struck the blow, although he regarded Mr. Mitchell as the main protagonist. The respondent knew he hit Mr. Shelton, although he could not say where he hit him.
[15] After the respondent struck Mr. Shelton, he and Mr. Mitchell continued to argue. The respondent said the events happened very quickly. On his version, Mr. Mitchell and Mr. Sharpe moved towards him and he backed up. The respondent backed away from Mr. Mitchell. As he did so, he “side stepped” and kicked Mr. Shelton who was lying on the ground. According to the respondent, the kick was not premeditated. He denied that he stomped on Mr. Shelton’s head or kicked him with the force that one would use to kick a soccer ball. He described the kick as an unthinking reaction done in the heat of the moment.
[16] An independent witness, Aminne Gafour, witnessed part of the altercation. He had not been drinking that evening and was regarded by the Crown and defence as a credible witness. He testified that he pulled up in his car outside of the restaurant and saw four or five men arguing loudly. Three men were standing shoulder-to-shoulder facing another man. He saw Mr. Shelton fall straight backwards, arms at his sides, like a tree. His head slammed onto the pavement. It sounded like a piece of wood hitting the ground.
[17] Mr. Shelton was motionless and Mr. Gafour thought he was seriously hurt. He went over to try to help Mr. Shelton and the respondent told him to stay out of it. The respondent spoke to him in a normal tone of voice. The argument among the men continued. The respondent seemed fired up and anxious to continue the fight. About forty-five seconds to one minute after Mr. Shelton fell to the ground, the respondent walked over to where Mr. Shelton was lying and delivered a forceful kick to the head. Mr. Shelton’s head bounced off the ground.
[18] Mr. Gafour checked Mr. Shelton for a pulse and realized that he was seriously hurt. He decided to call 911, although Mr. Shelton’s friends told him that he should not do so. The respondent became very quiet. The respondent left before the police arrived.
[19] Mr. Shelton was rushed to the hospital at 3:47 a.m. He died at 5:00 p.m. that day without regaining consciousness.
(b) The Cause of Death
[20] As the cause of death figures in the issues raised on the appeal, I will review the evidence of Dr. Chiasson, a pathologist, in some detail. Dr. Chiasson performed the post-mortem. He observed three facial injuries:
- a nine centimetre by three centimetre patterned abrasion running over the area around the right eye and up onto the forehead above the eye. There was some bleeding under the skin in this area;
- a small two centimetre bruise on the chin; and
- a four centimetre by three centimetre superficial cut on the lower lip.
[21] Dr. Chiasson agreed that the facial injuries were “medically minor”. None of the facial bones, which are relatively fragile, were damaged. The bruise on the chin and the cut lip were consistent with having been caused by a single punch to Mr. Shelton’s face. The patterned abrasion around the eye and on the forehead above the eye was consistent with Mr. Shelton having been kicked or stepped on by a person wearing a shoe with a print that corresponded to the pattern of the abrasion on Mr. Shelton’s face. Dr. Chiasson opined that the kick was administered with “not insignificant force”. In cross-examination, defence counsel put the description of the kick given by Mr. Mitchell to Dr. Chiasson. In his opinion, that description suggested a much more forceful kick than did the physical evidence of the injuries to Mr. Shelton’s face.
[22] Dr. Chiasson’s internal examination of the skull and brain revealed the following:
- extensive bruising and bleeding under the scalp, running from just above the left ear across the back left side of the skull and extending slightly to the right side;
- a fractured skull, running from just above the left ear across the back of the head. The impact point was on the back left side of the head;
- subdural bleeding on the left side of the head; and
- bleeding on the surface of the brain both at the front and back.
[23] Dr. Chiasson testified that it was likely that that Mr. Shelton was rendered unconscious when his head struck the ground when he fell after being punched by the respondent. Dr. Chiasson offered the opinion that all of the injuries to the skull, dura and brain itself were consistent with being caused by the single blow to the back of the head that occurred when Mr. Shelton fell to the ground and hit his head.[^1] He said:
It is my view that the pattern of injuries here, including the external injuries, the injuries to the scalp, the injuries to the skull, subdural hemorrhage, the injuries to the brain, all of that pattern of injuries is the kind of pattern – pattern of injuries that I have seen many times in the past a result of, striking the back of the head, without any other known impacts to that area having been inflicted. [Emphasis added.]
[24] Dr. Chiasson’s opinion as to the cause of death is found in this extract from his examination-in-chief:
A. Well, in my opinion, the cause of death was complications of blunt force head injuries.
Q. And can you explain, when you say “complications,” what are you referring to?
A. Yes. Well, the blunt force head injuries, I’m referring to the impact to the back of the head as being the major blunt force – major site of blunt force injury, and it’s – the complication, there’s been a period of survival here that’s allowed the brain to swell, that’s allowed the brain to herniate, and ultimately as part of that, you also have these hemorrhages in the brain stem. So the brain stem hemorrhages are probably the most significant final complication or final pathway of the injuries. But there’s been a period of time that’s passed by. So, by complications, I’m referring to the swelling, the herniation effects, the brain getting pushed down into areas that it normally doesn’t. This compresses vessels and nerves. And these hemorrhages, which is also as a result of this herniation effect. Those are the complications but they’re all attributable to the blunt force head injury which is a combination of the skull fracture, the subdural hemorrhage and the hemorrhage within the brain itself. [Emphasis added.]
[25] Dr. Chiasson was pressed by both counsel as to the potential role that a kick or two kicks to the face or left side of the head could have played in Mr. Shelton’s death.[^2] He testified that it was possible, but not likely that the kick or kicks could have exacerbated the skull fracture or bleeding of the brain caused by the blow to the back of the head. His cross-examination culminated with the following questions and answers:
Q. The bottom line, then, I guess, is it’s simply not possible for you to say that the injury to the front of the head or any injury to the left side of the head did exacerbate the injury to the brain and the back of the head. It’s not possible to say.
A. It’s not possible to say with any degree of definitiveness or any degree of high likelihood. I can’t exclude the possibility as well, but I can say that it’s – as I’ve said, I don’t think it’s a likely possibility.
Q. To say you did so would involve speculation, really. Fair?
A. There’s certainly speculation because we are – we’re not, again, seeing any pathologically – unusual enough or unusual that isn’t explained by the – all the injuries being caused by the fall. So there’s nothing that pathologically that isn’t – can’t be explained. Therefore, you’re left with speculating as to whether it could have occurred or could not have occurred. It is speculative, yes. [Emphasis added.]
II
The Trial Judge’s Ruling on the “Corbett” Application
[26] The respondent has a lengthy criminal record consisting of twenty-five convictions registered over the sixteen years prior to the homicide. His record included two robbery convictions and six convictions for assault related offences. Many of the remaining convictions involved crimes of dishonesty and breaches of court orders.
[27] Prior to testifying, the respondent sought an order prohibiting the Crown from cross-examining him on any of his convictions involving crimes of violence. Counsel for the respondent took the position that the respondent would be severely prejudiced in advancing a self defence claim by evidence that he had been previously convicted on a number of occasions of crimes involving assaultive behaviour. Crown counsel opposed the motion and argued that with the exception of one small deletion, the jury should have the benefit of the respondent’s entire criminal record when assessing his credibility.
[28] The trial judge acceded to most of the submissions made on behalf of the respondent. She held that the Crown could not cross-examine the respondent on the six assault related convictions and that cross-examination on the two robbery convictions should refer to the convictions as theft convictions. As a result of the trial judge’s ruling, Crown counsel was permitted to cross-examine the respondent on nineteen prior convictions extending over the sixteen years prior to this homicide.
[29] The acquittal demonstrates that the jury found that the respondent’s evidence was sufficiently credible to at least leave the jury with a reasonable doubt on the self defence issue. Crown counsel on appeal argues that the trial judge erred in law in refusing to allow the Crown to cross-examine the respondent, for credibility purposes, on his entire prior criminal record. Crown counsel submits that had proper cross-examination been allowed, the result may well have been different.
[30] Crown counsel launched a multi-faceted attack on the trial judge’s ruling identifying no less than seven separate errors in principle. Counsel also alerted the court to what he described as “jurisprudential chaos” in the trial courts. In counsel’s submission, the trial courts have strayed from the principles enunciated in R. v. Corbett, [1988] 1 S.C.R. 670, which recognized a limited discretion to exclude cross-examination on a criminal record. He argued that the trial courts are going far beyond anything contemplated by the principles set down in R. v. Corbett and are routinely excluding or limiting cross-examination of an accused on his or her criminal record.
[31] The court found no merit to these submissions and did not call on counsel for the respondent. I will, however, address the Crown’s arguments.
[32] The trial judge began her reasons with a reference to the leading case of R. v. Corbett, supra. The trial judge recognized that an accused’s criminal record, including convictions for crimes of violence, could have a direct bearing on the credibility of the accused as a witness. She also acknowledged that cross-examination on the record should be limited or denied only where the prejudicial potential of that cross-examination exceeded the potential probative value of the record.
[33] After referring to the factors identified in R. v. Corbett, supra, as relevant to the assessment of probative value versus prejudicial effect, the trial judge considered each of those factors as they arose in this case. She concluded that the risk of prejudice was high. The outcome of this trial turned on whether the Crown could prove that the respondent instigated the confrontation outside of the restaurant that resulted in Mr. Shelton’s death. If the respondent was the aggressor, he was guilty of at least manslaughter. The respondent claimed that Mr. Shelton and his friends were the instigators and that he acted in self defence. The trial judge was concerned that if the jury heard that the respondent had eight prior convictions for assault related offences over several years, that it would conclude, despite instructions to the contrary, that he had a propensity to act violently and infer from that propensity that he had instigated this confrontation. That line of reasoning, while perhaps logically compelling, is impermissible under the rules of evidence governing criminal proceedings. A verdict that flows from such reasoning is a miscarriage of justice.
[34] I see no error in the trial judge’s identification of potential prejudice. Nor do I regard her frank acknowledgement of that potential prejudice as inconsistent with a recognition of the ability of juries to follow instructions. Acknowledging the risk of prejudice is not tantamount to suggesting that juries will ignore what they are told by trial judges. Rather, acknowledging the prejudice recognizes that despite proper instructions and the best of intentions by juries, faulty propensity based reasoning can infect a jury’s deliberations. This is particularly so where an accused’s criminal record lends considerable credence to propensity based reasoning.
[35] The trial judge then turned to the probative value of the evidence of the respondent’s convictions for crimes of violence. She concluded that the probative value of the evidence of the respondent’s criminal record as it reflected on his credibility would not be materially reduced if she edited the record to exclude reference to the crimes of violence. The jury would still be told that the respondent was a recidivist who had committed crimes on a regular basis for many years. The jury would no doubt see the very direct connection between many of the crimes the respondent had committed and his trustworthiness. It is difficult to think that the jury’s assessment of the respondent’s credibility based on his criminal record would have been different had they known that he had committed not only some nineteen crimes, many of which involved dishonesty, but had also committed six additional crimes of violence.
[36] It was open to the trial judge to conclude that cross-examination on those additional crimes would add very little, if anything, to the jury’s ability to assess the respondent’s credibility. The crimes of violence could, however, provide real insight into the respondent’s propensity for violence. That insight could taint the jury’s ability to properly try the case.
[37] The trial judge’s decision to exclude part of the respondent’s criminal record was an exercise of her discretion. This court does not review the correctness of the decision arrived at by the trial judge. Absent an error in principle or misapprehension of relevant evidence, this court will not interfere with the trial judge’s exercise of her discretion: see e.g. R. v. Armstrong (2003), 179 C.C.C. (3d) 37 at paras. 39-43 (Ont. C.A.). I see no such error in the trial judge’s reasons. To the contrary, the reasons reflect a careful application of the relevant principles to the circumstances of the case.
[38] Crown counsel’s assertion that the “Corbett” application jurisprudence is in a chaotic state, misunderstands the nature of judicial discretion. Fact-specific decisions are essential to the proper exercise of judicial discretion. Each judge must decide the weight to be assigned to the various factors relevant to the exercise of his or her discretion. It should come as no surprise that very similar situations yield different results. One judge will assign more or less weight to one or another factor than would another judge. What counsel for the Crown sees as jurisprudential chaos is simply reflective of a discretionary decision-making process.
III
The Alleged Errors in the Charge to the Jury
[39] The Crown alleges many errors by the trial judge in her instructions to the jury. The alleged errors fall under four broad categories. Counsel contends that:
- the trial judge erred in her instructions pertaining to whether the respondent’s actions constituted one or two transactions [the “one transaction” issue];
- the trial judge erred in her instructions on self defence;
- the trial judge erred in her instructions as to the respondent’s potential liability for murder or manslaughter on the basis that the kick was a cause of death; and
- the trial judge erred in failing to instruct the jury as to the respondent’s potential liability for attempted murder or assault on the basis that the kick was not a cause of death, but was an unlawful act.
[40] I do not propose to address each and every ground of appeal separately. Instead, I will demonstrate why, despite errors in the instruction on the “one transaction” issue, the acquittal must stand.
(a) The “One Transaction” Issue
[41] Self defence was the only defence advanced at trial. This defence always creates some complexity in the jury instruction. In addition to the self defence claim, there was a factual aspect of this case that added some further complexity. The respondent struck Mr. Shelton with his fist, knocking him to the ground. When Mr. Shelton fell, the back of his head hit the ground with considerable force. About thirty seconds to one minute later, the respondent kicked Mr. Shelton in the head as he was lying on the ground. The force of that kick was described in various ways by the witnesses. The medical evidence pointed to the blow to the back of Mr. Shelton’s head as the medical cause of death.
[42] The Crown acknowledged that it could not establish that the respondent had the requisite intent for murder when he punched Mr. Shelton. The Crown maintained, however, that the punch and the subsequent kick must be viewed as part of a single ongoing transaction during which the respondent assaulted Mr. Shelton by punching and kicking him. The Crown submitted that if the respondent had the requisite intent for murder at any point during the assault, and particularly when he kicked Mr. Shelton, he was guilty of murder regardless of whether the kick was a cause of death. Assuming the kick and the punch are properly viewed as part of a single ongoing transaction, the Crown’s submission is correct as a matter of law: see R. v. Cooper (1993), 78 C.C.C. (3d) 289 at 295-97 (S.C.C.). However, even if the punch and the kick are treated as part of a single ongoing transaction, the respondent’s ultimate liability on the murder charge turned on the question of causation and the availability of the defence of self defence.
[43] Defence counsel at trial argued that it was for the jury to decide whether the respondent’s two actions constituted one transaction or two. Counsel argued that if the jury decided that the two actions were discrete transactions, the respondent’s liability for murder or manslaughter would have to be determined separately as regards to the punch and the kick. Crown counsel accepted the defence position that it was for the jury to decide whether the actions amounted to a single transaction. Crown counsel submitted, however, that the evidence overwhelmingly favoured a finding that the punch and the kick were part of a single transaction and asked the trial judge to instruct the jury accordingly.
[44] The trial judge told the jury that it was up to them to determine whether the punch and the kick by the respondent constituted a single transaction. She referred to some of the factors which the jury should consider in making that determination. Those factors strongly suggested that the actions were part of a single transaction.
[45] Not only did the factors identified by the trial judge strongly suggest that the respondent’s actions were part of a single transaction, the questions asked by the jury indicate that it arrived at that conclusion. On the second day of deliberations, the jury asked: “What are the legal implications of considering the punch, fall and kick as one transaction or as separate transactions?”
[46] The trial judge provided further instructions that were consistent with those given in her initial charge and she added some additional detail. Several hours later on the same day, the jury asked three more questions. It is clear from the jury’s first question that the jury regarded the punch and the kick as having occurred in the course of the same transaction.
[47] The jury returned with an acquittal some twenty-five minutes after the trial judge answered this question. To the extent that the questions provide insight into the jury’s deliberations, it seems likely that the jury had determined that the kick and the punch were part of the same transaction.
[48] On appeal, Crown counsel submits that the jury should have been told as a matter of law that the respondent’s actions, including the punch and the kick, should be regarded as part of a single transaction for the purposes of determining his culpability. Counsel also submits that assuming the “one transaction” issue was properly left with the jury, that the trial judge made several errors in her instructions pertaining to that issue.
[49] Viewed from a first principle’s perspective, the question of whether the respondent’s actions were all part of a single ongoing transaction must be a question of fact and, therefore, a question for the jury: see R. v. Church, [1965] A.C. 206 at 210, 214 (Ct. Crim. App.). The allegation that the respondent’s conduct was part of an ongoing transaction constituted the Crown’s theory of an actus reus of the alleged murder. It is the jury’s job to decide whether the Crown has proved its case, including its theory as to the nature of the actus reus.
[50] Although I am satisfied that the “one transaction” issue raises a factual question, I agree with the Crown’s alternate submission that on the evidence adduced in this case, there was no air of reality to the contention that the punch and the kick constituted two separate and discrete transactions. The jury should have been told to view the punch and the kick as part of a single ongoing transaction. The two actions were very closely connected in time. They both occurred in the course of the same ongoing altercation, at the same place, involving the same participants. The punch and the kick were directed at the same person by the same person. There is nothing in the respondent’s evidence that could disconnect the two actions. He describes the punch as an act of self defence against a menacing trio of individuals and the kick as a somewhat instinctive reaction as he continued the confrontation with Mr. Shelton’s friends.
[51] Trial judges are quite properly reluctant to interfere with a jury’s fact finding function. This is particularly so where, as in this case, counsel for the Crown and the accused agree that there is a genuine factual issue for the jury. It is, however, well recognized that juries should not be invited to make factual findings, whether they relate to a Crown theory of liability or a defence that are not reasonably available on the evidence: see R. v. Fontaine, 2004 SCC 27 at paras. 64-70; R. v. Cinous, 2002 SCC 29 at paras. 50-51. It was not reasonably open to this jury to treat the punch and the kick as separate transactions.
[52] I also agree with the Crown’s submission that assuming the “one transaction” issue was a live one, the trial judge erred in telling the jury that it had to be satisfied beyond a reasonable doubt that the respondent’s acts constituted a single transaction or alternatively, that it had to be satisfied beyond a reasonable doubt that the respondent’s actions constituted two separate transactions. The Crown took the position that the punch and the kick were part of a single ongoing assault. It was incumbent on the Crown to prove beyond a reasonable doubt that the two acts constituted a single ongoing transaction. If the Crown did not meet that burden, the jury would then have to determine whether the respondent was guilty of murder or manslaughter based either on the punch or on the kick considered as separate acts.
[53] Although I accept that the trial judge should have told the jury to treat the punch and the kick as part of a single transaction and that she erred in her instruction on the burden of proof on that issue, I do not think that either error had any effect on the result. I will begin my reasons for so holding by setting out the conclusions that drive my analysis:
- the trial judge correctly instructed the jury on the defence of self defence;
- the jury’s verdict indicates that it had a reasonable doubt as to whether the punch was administered in self defence;
- the punch and the consequential head injury when Mr. Shelton’s head hit the ground caused Mr. Shelton’s death;
- the kick was not a cause of death; and
- it was not open to the jury to convict the respondent of attempted murder or assault based on the kick.
(b) The Self Defence Instruction
[54] Before charging the jury, the trial judge heard extensive submissions from counsel on a variety of issues, including which of the self defence sections of the Criminal Code should be left with the jury. After hearing submissions, the trial judge initially proposed to leave only s. 34(2) with the jury. Counsel for the respondent argued that s. 34(1) should also be left with the jury. As I read Crown counsel’s submissions, he eventually accepted that it was appropriate to put both ss. 34(1) and 34(2) to the jury, although he expressed some uncertainty as to why the defence would rely on s. 34(2). After hearing additional submissions, and on the understanding that counsel were agreed, the trial judge decided to put both ss. 34(1) and 34(2) to the jury.
[55] The Crown alleges three errors in law in the self defence instruction. Crown counsel also submits that the trial judge “over-charged” on self defence and created the confusion that this court cautioned against in R. v. Pintar (1996), 110 C.C.C. (3d) 402 at 415-16 (Ont. C.A.).
[56] I will deal with the three grounds of appeal separately. By way of overview, however, I would describe the charge on self defence as accurate, clear and well organized. Despite the inherent complexity in the subject matter, the trial judge’s instructions reduced self defence to a series of relatively straightforward questions for the jury’s consideration. The trial judge also effectively related the evidence to the issues raised by those questions. I think that some of the submissions made by the Crown would lead to the kind of unnecessary prolixity and complexity described in R. v. Pintar, supra.
[57] The Crown submits that s. 34(2) should not have been left with the jury. Section 34(2) is available only if there is some evidence upon which a jury could have a reasonable doubt as to whether the accused acted under a reasonable apprehension of death or grievous bodily harm when he purported to act in self defence. The Crown contends that at its highest, the evidence suggests that the respondent faced a “glib macho threat” from Mr. Mitchell which on any reasonable interpretation could not amount to a threat of grievous bodily harm or death.
[58] This submission ignores the respondent’s testimony. He testified that he was confronted outside of the restaurant by three men who were much larger than he. He was alone. One of the three, Mr. Mitchell, said words to the effect, “We’ll kick your fucking ass.” The respondent testified that he believed he was about to be “jumped” by these three men. His evidence provided a basis upon which a reasonable jury could have a doubt as to whether the respondent reasonably apprehended that he was under threat of grievous bodily harm from the three men who confronted him outside of the restaurant. Section 34(2) was properly left with the jury.
[59] The Crown also argues that the jury should have been told that if the respondent consented to a fight with Mr. Shelton, Mr. Mitchell and Mr. Sharpe or one of them, he could not rely on self defence as defined in ss. 34(1) or 34(2). Both subsections require that the accused be assaulted before the accused acts in self defence. If the initial confrontation could be characterized as a consensual fight, the respondent could not have been assaulted because he did not suffer serious bodily harm: see R. v. Paice (2005), 2005 SCC 22 at para. 18 (S.C.C.).
[60] This argument was not made at trial, presumably because no one testified that there was a consensual fight of any kind. Mr. Mitchell and Mr. Sharpe described the respondent as “sucker punching” Mr. Shelton. The respondent said he struck Mr. Shelton because he feared he was about to be attacked by Mr. Shelton and his two friends. It was not part of the case for the Crown or the defence that there was anything consensual about what happened.
[61] It may be that one could cobble together a consensual fight scenario from bits and pieces of the evidence. That scenario would not, however, accord with the position taken by anybody at the trial. It would introduce into the jury instructions concerning self defence a strained and unlikely interpretation of the evidence that would necessarily add significant complexity to the jury instruction. This kind of approach to self defence claims is discouraged in R. v. Pintar, supra.
[62] The third error alleged by the Crown in the self defence instruction arises out of the instructions concerning Mr. Shelton’s involvement in the actions that on the position of the defence constituted the assault on the respondent and opened the door to ss. 34(1) and 34(2). Mr. Shelton did not physically assault the respondent. It was the defence position that the respondent reasonably perceived that Mr. Shelton and his two friends acting together were about to attack him. It was this threat that the defence alleged amounted to an assault for the purposes of ss. 34(1) and 34(2).
[63] In the pre-charge discussions, Crown counsel having received a draft of the trial judge’s proposed self defence instruction, observed that if Mr. Mitchell alone threatened the respondent, that threat could not justify or excuse the respondent’s assault on Mr. Shelton. Crown counsel asked the trial judge to modify her instructions to make it clear that the alleged threat to the respondent could engage the self defence provisions only if the jury was satisfied or had a reasonable doubt that the threat involved “Mr. Shelton acting alone or willingly acting in concert with the others.” Defence counsel submitted that the word “willingly” should not be included in the instruction. The trial judge modified her proposed instructions to accord with the defence position. For example, when explaining the first component of s. 34(1), the trial judge said:
Ladies and gentlemen, it is for you to consider whether the actions of Mr. Shelton, acting alone or in concert with the others, caused Mr. Talbot to reasonably believe that he was about to be physically harmed unless he did something to prevent it. [Emphasis added.]
[64] On appeal, Crown counsel advances a different position than the trial Crown. He contends that the phrase “in concert”, initially suggested by the Crown at trial, was inadequate and that the trial judge should have told the jury that Mr. Shelton had to be a party within the meaning of s. 21(1) of the Criminal Code to the alleged threat made against the respondent before self defence was available to the respondent. Crown counsel argues that a full blown instruction on the principles of aiding and abetting was necessary.
[65] I would reject this submission. The phrase “in concert” made it clear to the jury that ss. 34(1) and 34(2) were available only if the respondent reasonably perceived that Mr. Shelton and his friends, acting together, were threatening to attack him. Detailed instructions on the intricacies of s. 21, which are intended to describe the limits of accessorial liability, were unnecessary in the context of an instruction on the essential elements of self defence. The words used by the trial judge made it clear to the jury that the respondent could rely on self defence only if he reasonably perceived that Mr. Shelton was a party to the apprehended attack on him. The trial judge made this clear without introducing the complexities of an aiding and abetting instruction into the middle of what was already, of necessity, a somewhat complicated instruction on self defence.
[66] Having determined that the self defence instruction was correct in law, I move now to the significance of that conclusion to the Crown’s claim that there must be a new trial.
[67] The trial judge’s self defence instruction focused on the punch. She told the jury that the respondent could only be acquitted on the basis of self defence if the punch was an act of self defence as she would define it for them. For example, when instructing the jury on the relevance of the respondent’s state of mind for the purposes of s. 34(1) of the Criminal Code, the trial judge told the jury that it must consider the respondent’s state of mind when he punched Mr. Shelton. The trial judge reviewed the evidence which could assist the jury in determining the respondent’s state of mind when he punched Mr. Shelton. In her initial charge, she did not refer to the kick. However, in the re-charge delivered at the request of the Crown, the trial judge said:
I am persuaded that there is a matter that perhaps needs to be clarified, and that is the relevance of conduct that took place after the punch, to your analysis of whether the punch was an act of self-defence in response to an unlawful assault, as I have described it to you. In my summary of the evidence, I focused on the actions just prior to the punch. Not exclusively, because you will recall when I asked you to consider whether the punch was an act of lawful self-defence, I suggested that you could look at Mr. Gafour’s evidence to the effect that he tried to come and help Mr. Shelton and was turned away. But I am saying to you that there is other conduct that took place after the punch that you may consider – may consider, it is up to you – relevant to whether or not the punch was an act of self-defence.
The Crown in his submission suggested that you may consider the fact that Mr. Talbot kicked Mr. Shelton in the head when he was lying on the sidewalk, and that Mr. Talbot left the scene after the kick, making no attempt to enter the restaurant and seek safety or to tell his girlfriend what had happened. He said those in his submissions yesterday and I used them in my summary today.
Both the Crown and the defence have relied upon conduct that took place after the punch in support of the various positions they have put to you, and I just want to make sure you understand that you are entitled to look at conduct, for example, the kick, what escape routes may have been available to Mr. Talbot, and the actions of the other people at the time, as being relevant to your assessment of whether or not the Crown has proven beyond a reasonable doubt that Mr. Talbot did not act in lawful self-defence, as we call it, when he punched Mr. Shelton. [Emphasis added.]
[68] On the second day of its deliberations, the jury asked two sets of questions. The first two questions in the second set are germane to the self defence instruction. The jury asked:
If a transaction begins with an act of self-defence that results in cause of death, and that same transaction carries on to include an unlawful assault, can self-defence be ruled out?
If the cause of death stems from an act of self-defence, how would an ensuing unlawful assault be addressed, or should it even be considered?
[69] In response to the questions, the trial judge told the jury:
If, after considering all of the evidence that bears on the issue of the circumstances surrounding the punch, which, of course, would include the evidence that you’ve heard about conduct before the punch, the punch itself, and after the punch, which would include the kick, if, after considering all of that evidence, you conclude that the punch was an act of self-defence, of lawful self-defence, as I’ve explained it to you, then you must acquit. Then the subsequent kick which, in law, would arguably be an unlawful assault, is not a charge that is before you. … If you come to the conclusion that the punch was an act of lawful self-defence, as I’ve explained it to you, after considering all of the evidence, then you simply must acquit.
[70] It is clear from the charge, recharge and the trial judge’s answer to the jury’s questions that the trial judge treated the punch and the kick as part of the same transaction for the purposes of the self defence claim. The availability of the defence depended on the jury’s assessment of the circumstances at the point in time when the respondent punched Mr. Shelton. The kick was relevant as evidence of the respondent’s state of mind when he punched Mr. Shelton. The approach taken by the trial judge was consistent with that advanced by both the defence and Crown at trial. As I read the record, no one suggested that the trial judge should invite the jury to consider whether self defence applied with respect to the kick considered in isolation from the punch.
[71] The jury returned a verdict of not guilty less than a half an hour after the trial judge responded to the questions referred to in para. 68, above. That acquittal can only mean that the jury had a reasonable doubt as to whether the respondent was acting in self defence when he punched Mr. Shelton. As I am satisfied that the self defence instruction was correct, the Crown’s appeal must be approached by accepting the finding implicit in the jury’s verdict. The respondent acted in self defence when he punched Mr. Shelton.
(c) The Cause of Death
[72] I have already reviewed the evidence of Dr. Chiasson pertaining to Mr. Shelton’s injuries and the cause of his death. On Dr. Chiasson’s evidence, all of the internal head injuries that caused Mr. Shelton’s death were consistent with having been caused by the single blow to the back of the head that resulted when Mr. Shelton fell to the ground after being punched by the respondent. The kick to Mr. Shelton’s face, while of “not insignificant force”, caused “medically minor” injuries and did not cause any injury to the relatively fragile bone structure underlying the face. The photographs entered as exhibits at trial are consistent with the relatively minor injuries described by Dr. Chiasson. He also testified that the injuries to Mr. Shelton’s face were inconsistent with a kick delivered with the degree of force described by Mr. Mitchell.
[73] Insofar as the connection between any trauma caused by the kick and Mr. Shelton’s death is concerned, Dr. Chiasson could say no more than that it was possible, but not likely, that the trauma exacerbated the injuries caused when Mr. Shelton’s head hit the ground seconds earlier. Dr. Chiasson agreed that any attempt to be more specific amounted to speculation. Dr. Chiasson was not specifically asked to offer any opinion as to whether the kick accelerated Mr. Shelton’s death.
[74] Crown counsel went to the jury on the basis that the kick may have played a part in Mr. Shelton’s death. Crown counsel made it clear to the jury, however, that it was the Crown’s position that the punch and the kick were part of the same transaction. As it was beyond dispute that the respondent had caused Mr. Shelton’s death in the course of the altercation, the Crown took the position that it did not matter whether the kick was causative of the death or not. The defence argued that the punch caused the death and that it was delivered in self defence.
[75] Trial counsel for both the Crown and the defence accepted that there was a basis upon which the jury could find that the kick was a cause of Mr. Shelton’s death either alone or in combination with the punch. The trial judge instructed the jury accordingly.
[76] The trial judge’s instruction on causation was given in the course of her explanation of the respondent’s potential liability for murder or manslaughter. The trial judge introduced this part of her instruction by saying: “[Y]ou do not consider this distinction at all unless you have first rejected the defence of self-defence under both s. 34(1) and s. 34(2).”
[77] In explaining the potential liability for the kick, the trial judge told the jury:
If you find that the kick was the cause of death or contributed to death in a sufficiently material way, such that death would not have occurred but for the kick, then you would have to consider Mr. Talbot’s state of mind at the time of the kick to determine whether, at the time of that particular blow, Mr. Talbot had the intent to murder Mr. Shelton.
[78] The logic of the jury instruction suggests that the jury having found that the respondent acted in self defence never reached the causation question. The jury’s questions quoted above (para. 68) also indicate that the jury concluded that the punch was the sole cause of death. It is probable that the instruction on causation as it related to the kick was of no consequence to the verdict returned by this jury.
[79] I would, however, go further than holding that the instruction was of no consequence. I do not think there was any evidentiary basis for a finding that the kick was a contributing cause of Mr. Shelton’s death. Causation in the criminal law has a factual and legal component. The former is concerned with the physical or medical cause of death. A “but for” inquiry answers the factual causation question in most, but not all situations. If the victim would not have died when he or she died but for the act of the accused, that act is a factual cause of death: see Isabel Grant, Dorothy Chunn & Christine Boyle, The Law of Homicide (Toronto: Carswell, 1994) at 3-21 - 3-29; Glanville Williams, Textbook of Criminal Law, 2d ed. (Agincourt, Ont.: Carswell, 1983) at 380-81; Wayne R. LaFave, Substantive Criminal Law, 2d ed. (Eagan, Minn.: Thomson/West, 2003) vol. 1 at 467-68.
[80] Legal causation requires a normative inquiry. It asks who among those who have factually caused a death should be held liable for causing that death in the eyes of the criminal law: see R. v. Nette, 2001 SCC 78 at paras. 44-45.
[81] Juries are not asked to determine factual and legal causation separately. Instead, the two inquiries are joined and the jury is asked to decide whether the accused’s actions significantly contributed to the victim’s death: see R. v. Nette, supra, at paras. 46-73. A contributing cause can be a cause that exacerbates an existing fatal condition, thereby accelerating death: see R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260 at 290-91 (Ont. C.A.); Criminal Code, s. 226.
[82] If the Crown sought to rely on the kick as a contributing cause of death, it was incumbent on the Crown to prove beyond a reasonable doubt that the kick was a contributing cause within the meaning of R. v. Nette, supra. The evidence adduced by the Crown went no further than to suggest there was some unquantifiable possibility that was less than a likelihood that the kick exacerbated the internal head injuries. I agree with counsel for the respondent’s submission that this evidence could provide a basis for a finding of a causal link between the kick and Mr. Shelton’s death only if the jury was prepared to engage in the kind of speculation that Dr. Chiasson declined to engage in during his evidence. Evidence that an act was possibly a cause of death cannot provide the evidentiary basis for a finding beyond a reasonable doubt that the act significantly contributed to the death.
[83] I also do not think that the jury could find a causal link between the kick and Mr. Shelton’s death on the basis of the non-medical evidence. While it is true that Mr. Mitchell, Mr. Sharpe and, to a lesser extent, Mr. Gafour described a very forceful kick (a description which was at odds with the physical evidence observed by Dr. Chiasson), I think the jury would still have to look to the medical evidence for any insight as to the effect of the kick. For the reasons already given, that medical evidence was incapable of forging a causal link between the kick and Mr. Shelton’s death.
(d) Potential Liability for the Kick
[84] Up to this point in my analysis, I have determined that the jury’s finding that the respondent acted in self defence when he punched Mr. Shelton must be accepted for purposes of the appeal. I have also concluded that in all likelihood, the jury found that death was caused exclusively by the punch and that in any event, there was no evidentiary basis for a finding that the kick was a cause of death. These two conclusions taken together mean that Mr. Shelton’s death was not the result of an unlawful act. Without an unlawful act, the respondent cannot be said to have committed a culpable homicide. By definition, Mr. Shelton’s death was a non-culpable homicide. Homicide that is non-culpable is not an offence: see Criminal Code, s. 222.
[85] The Crown submits, however, that the jury instructions on the respondent’s potential criminal liability based on the kick were inadequate. The Crown takes particular exception to the trial judge’s instruction (supra, para. 69) in response to the jury’s questions to the effect that if the jury was satisfied that the punch caused Mr. Shelton’s death and was justified in self defence, the jury must acquit even if they concluded that the kick was an unlawful assault.
[86] The Crown refers to authorities to support its submission that an accused may initially act in self defence, but then go beyond the limits of that defence in the course of an altercation. In these cases, the accused may be held criminally liable for his subsequent conduct even if his initial reaction was justified in self defence: see e.g. R. v. Assiniboine, [2005] B.C.J. No. 1550 (S.C.).
[87] There can be no quarrel with these authorities. Nor could anyone take exception with the Crown’s assertion that a person who is initially justified in acting in self defence is not “cloaked in legal immunity” should that person proceed to attack his defenseless assailant. However, if the act that causes death is justified in self defence, the homicide cannot be made culpable by a subsequent unlawful assault no matter how morally reprehensible that assault may be.
[88] The trial judge’s instruction that the jury should acquit if the punch was an act of self defence was given in response to a question which accepted that the “act of self defence” had caused death and was followed by an unlawful assault. In that specific context, I think the trial judge’s answer to the jury’s question was correct. It is significant that the trial judge vetted her proposed answer with counsel and no objection was taken by either counsel to her proposed response.
[89] This leaves the Crown’s final submission. Counsel argues that even if the kick was not a cause of death and the homicide was not culpable because the respondent acted in self defence, the kick may still provide the basis for the imposition of criminal liability. The Crown submits that if the kick was an unlawful assault, the respondent is guilty of attempted murder or assault causing bodily harm depending on his state of mind at the time he administered the kick. The Crown describes these as included offences in the charge of second degree murder. Crown counsel referred the court to the Criminal Code provisions pertaining to included offences in a murder charge and, in the best tradition of the bar, to certain authorities that went against his argument: see Criminal Code, ss. 660, 662; R. v. Chichak (1978), 38 C.C.C. (2d) 489 (Alta. C.A.).
[90] I need not consider what offences may be properly regarded as included offences on a charge of second degree murder. As the Crown acknowledges in arguing for criminal culpability for something less than murder based exclusively on the kick, this submission assumes that the kick and the punch are two discrete transactions. Counts in an indictment should generally refer to a single transaction: see Criminal Code, s. 581. Offences which arise out of a separate transaction cannot, in my view, be regarded as included offences in a charge relating to a different transaction. They should be the subject of a separate count in the indictment.
[91] If the Crown wanted to allege that the kick was criminal even if the homicide was not, the Crown should have laid a separate charge to reflect that allegation. Fairness and proper notice to the respondent of the nature of his criminal jeopardy require nothing less. It is much too late to raise for the first time on appeal a theory of culpability far removed from that advanced by the Crown at trial. In so holding, I do not suggest that the respondent was entitled to attack Mr. Shelton with impunity after striking him in self defence. Rather, I hold that the Crown is not entitled to a new trial on a theory of culpability that is not reflected in the indictment preferred by the Crown and bears no resemblance to the case advanced against the respondent at trial.
IV
Conclusion
[92] I would dismiss the appeal.
RELEASED: “DD” “FEB 08 2007”
“Doherty J.A.”
“I agree J.I. Laskin J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: Dr. Chiasson explained that the bleeding on the surface of the front of the brain was the countercoup effect on the brain of the blow to the back of the head.
[^2]: The hypotheticals put to Dr. Chiasson referred to one or two kicks. No one saw Mr. Shelton kicked more than once. The differences in the description of the kicks raised the possibility of more than one kick. The Crown went to the jury on the basis that Mr. Shelton was kicked in the face once. The appeal was argued on the same basis. I will refer to a single kick.