CITATION: R. v. Dooley, 2009 ONCA 910

DATE: 20091222

DOCKET: C39151-C38298

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Edward Anthony Dooley

Appellant

and

Marcia Jacqueline Dooley

Appellant

Clayton C. Ruby and Gerald J. Chan, for the appellant Edward Dooley

Marie Henein and Jordan Glick, for the appellant Marcia Dooley

Jamie Klukach, Leslie Paine and Holly Loubert, for the respondent

Heard: September 21, 22 and 23, 2009

On appeal from the convictions entered by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated April 18, 2002 and the sentence imposed on Marcia Dooley on May 3, 2002.

Doherty J.A.:

I

OVERVIEW:

[1] The appellants were convicted of second degree murder by a court composed of a judge and jury in April 2002. Marcia Dooley was sentenced to life imprisonment without eligibility for parole for 18 years. Her husband, Edward (Tony) Dooley, was sentenced to life imprisonment without eligibility for parole for 13 years. Marcia Dooley appeals her conviction and sentence. Tony Dooley appeals conviction only.[^1] I would dismiss the appeals.

[2] The appellants were charged with murdering seven-year-old Randal Dooley. Randal was Tony Dooley’s son and Marcia Dooley’s stepson. He came to Canada to live with the appellants in November 1997. Eleven months later, he was dead. Post-mortem medical examinations revealed a shocking array of injuries to almost every part of Randal’s small body.

[3] It was established beyond any doubt that Randal was physically abused over several months before his death. Both appellants abused Randal and both were aware that the other was abusing Randal. On the day he died, Randal weighed less than 42 pounds. His health was deteriorating rapidly. Randal’s severely compromised physical condition must have been apparent to the appellants. Neither did anything to protect Randal from further abuse or to obtain the medical assistance needed to keep him alive.

[4] It was accepted at trial that one of the appellants caused Randal’s death. Each blamed the other. The perpetrator of the fatal assault was guilty of at least manslaughter (causing death by means of an unlawful act contrary to s. 222(5)(a)). It was also clear on the evidence that the parent who did not actually inflict the injury that caused Randal’s death was guilty of at least manslaughter for failing to protect Randal from the assaultive parent and/or failing to obtain medical care for Randal the night he died (criminal negligence causing death contrary to s. 220). As I read the trial record, the appellants’ liability for manslaughter, through their failure to provide medical assistance to Randal on the day he died, was beyond any realistic debate.

[5] The real issue at trial was whether either or both appellants should be convicted of second degree murder. The resolution of that issue came down to two questions. First, was the perpetrator of the fatal assault guilty of murder or manslaughter? The answer to this question turned on whether the Crown could prove beyond a reasonable doubt that the perpetrator had the culpable mental state required by s. 229(a)(ii). Second, was the non-perpetrator guilty of murder as an aider and abetter? This question turned on whether the Crown could establish that the non-perpetrator, for the purpose of assisting or abetting the perpetrator in the commission of murder, provided assistance or encouragement to the perpetrator knowing that the perpetrator intended to commit murder as defined in s. 229(a)(ii).

[6] At trial, the Crown argued that Randal died as a result of a head injury inflicted within 24 hours of his death. The Crown maintained that one of the appellants (probably Marcia) had inflicted the fatal head injury. The Crown contended that the perpetrator was guilty of murder as defined in s. 229(a)(ii) in that he or she caused bodily harm to Randal knowing that the bodily harm was likely to cause death and being reckless as to that result. In advancing this position, the Crown placed heavy reliance on Randal’s physical condition at the time of his death. The Crown submitted that Randal’s compromised medical condition must have made it patently obvious to the perpetrator that further assaults against Randal would not just likely cause his death, but would inevitably cause his death.

[7] The Crown argued that the parent who did not commit the fatal assault (probably Tony) was guilty of second degree murder as an aider and abetter. The Crown advanced the position that the non-perpetrator parent had a legal duty to intervene and stop the other parent’s abuse of Randal. On the Crown’s theory, the failure to perform that legal duty assisted or encouraged the perpetrator in the continuation of their abuse of Randal. That abuse included the assault that caused the head injury and led to his death. The Crown argued that the non-perpetrator knew that the perpetrator would assault Randal with the mens rea required for murder by s. 229(a)(ii) and assisted or encouraged the perpetrator in the commission of that crime by failing to do his duty and protect Randal. The Crown contended that the non-perpetrator failed to intervene for the purpose of aiding or abetting the perpetrator in the commission of murder. As with its case against the perpetrator, the Crown relied on the non-perpetrator’s knowledge of the ongoing assaults against Randal and his severely compromised physical condition as of the day he died.

[8] Neither appellant testified or called a defence. Through counsel, Marcia Dooley admitted her liability for manslaughter on the basis that she did not obtain the necessary medical help for Randal the night of his death. Marcia Dooley claimed, however, that Tony Dooley was the primary abuser and had caused the fatal head injury. Alternatively, counsel for Marcia Dooley submitted that if she was liable for the homicide as a perpetrator or an aider and abetter, she should be convicted of manslaughter and not murder because the Crown had not proved the murderous intent required under s. 229(a)(ii).

[9] Through counsel, Tony Dooley blamed Marcia Dooley for Randal’s death. He contended that the evidence showed that while he got along well with Randal, Marcia hated Randal and habitually mistreated him. Counsel submitted that the evidence established that Marcia had inflicted the vast majority of the abuse suffered by Randal, including the fatal head injury. Counsel acknowledged that Tony Dooley had failed his son and had even beaten him with a belt on one occasion, but submitted that Tony Dooley was not criminally liable in Randal’s death.

[10] Counsel for Tony conceded that Tony was aware of some of the abuse inflicted on Randal by Marcia, but argued that Tony was unaware of the extent of that abuse or the serious harm done to Randal. Counsel contended that the evidence indicated that Tony did not encourage Marcia in her assaultive behaviour, and went so far as to tell her to leave Randal alone on the night of the fatal assault. Finally, counsel submitted that if Tony Dooley was party to the homicide, he did not have the mental state required to render him liable for murder either as a perpetrator or as an aider and abetter. On this alternative submission, Tony was guilty of manslaughter.

[11] Counsel for the appellants alleged several errors at trial. They also brought an application under s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, to admit opinion evidence on appeal said to be relevant to the cause of Randal’s death and the degree of force needed to cause the subdural haematoma relied on by the Crown at trial as the injury that resulted in Randal’s death. At the conclusion of the appellants’ oral arguments, the court announced that it would not admit the evidence tendered on appeal by the appellants. The court requested submissions from the Crown on four grounds of appeal arising out of the trial record.

[12] These reasons will address the admissibility of the evidence put forward by the appellants on appeal and the merits of the four grounds of appeal on which the court required submissions from the Crown. Three of those grounds arise out of the trial judge’s jury instructions. The fourth concerns a ruling permitting the Crown to lead evidence proving that one of its witnesses had made prior inconsistent statements.

II

THE FACTS:

[13] A profoundly disturbing narrative unfolded at trial. Randal lived a nightmare of parental abuse for most of his short life in Canada. That nightmare only ended when Randal succumbed to his injuries some time during the very late evening of September 24 or the early morning of September 25, 1998.

[14] Randal was born in Jamaica in August 1991. Tego, his older brother, was born a year earlier. In May 1992, Tony Dooley left Jamaica and moved to Toronto. Randal, Tego and their mother, Raquel Burth remained in Jamaica and lived with Beatrice Dooley, Tony’s older sister. Tony Dooley provided financial support for his sons while they lived with Beatrice. By all accounts, the boys had a normal childhood while with Beatrice. Apart from Tony’s statements to the police after Randal’s death, there is no evidence that Randal was abused in Jamaica. A physical exam in August 1997, shortly before Randal came to Canada, did not show any signs of abuse.

[15] Tony Dooley married Marcia shortly after he immigrated to Canada. In November 1997, he arranged for his two sons to come to Toronto to live with him and Marcia. Randal was six years old and Tego was seven. Very shortly after his sons arrived in Canada, Tony Dooley left Canada for the United States, leaving the newly arrived Randal and Tego with Marcia, who was pregnant.

[16] Marcia had a baby boy (Tyreek) in April 1998. Tony Dooley returned home to live with his family in May 1998. The family moved to a small townhouse on McCowan Road in August 1998. Tony and Marcia were unemployed. Both parents were at home with the children, although Tony often found a reason to go out.

[17] It is impossible to say exactly when the appellants’ abuse of Randal began. There is evidence of abuse by Marcia in January 1998. It is crystal clear that whenever the abuse began, it escalated during the summer of 1998, and continued until a few hours before Randal’s death. Tego was not abused by the appellants.

[18] Randal died lying in bed beside his brother some time during the very late evening of September 24 or the early morning of September 25, 1998. Evidence of the events of September 24 comes from the testimony of Tego, statements made by the appellants after Randal’s death, the testimony of neighbours and inferences from the expert medical testimony.

[19] Randal was not attending school in September 1998. The appellants kept him home fearing that the authorities would call the Children’s Aid Society if they saw him. He remained in the family home, often alone with Marcia – probably his primary abuser. Tego attended school and Tony usually went out somewhere.

[20] Randal’s medical condition was precarious on September 24, 1998. Months of abuse had taken their toll and compromised Randal’s ability to withstand further assaults. Pneumonia had set in. Randal was suffering various adverse effects flowing from the many severe and recent injuries inflicted upon him.

[21] On the morning of September 24, Tego went to school as usual. Tony left the family residence at about 8:30 a.m. to get his car fixed at a garage. Marcia and Randal remained at home. Randal vomited several times during the day and was also incontinent. Marcia became frustrated and angry with Randal. She ordered him to clean up his own vomit. During the afternoon, she spoke with Veronica Campbell on the telephone. Marcia was angry and complained about Randal. It was not unusual for Marcia to become angry with Randal and blame him for vomiting or his failure to control his bowels. Ms. Campbell cautioned Marcia against hitting Randal. Ms. Campbell testified that Marcia had complained about Randal’s behaviour on prior occasions and had admitted to Ms. Campbell that she slapped Randal.

[22] Tego arrived home from school at about 4:00 p.m. He found Randal upstairs in their bedroom. Randal was on the floor and appeared to be sleeping while sitting up. Marcia Dooley came upstairs shortly after Tego, and ordered Randal to put on a diaper and to “hurry up”. Randal was required to wear diapers by September 1998 because of his habitual incontinence.

[23] When Tony Dooley arrived home in the late afternoon, Marcia was on the phone with her sister complaining about Randal vomiting and taking too long to clean up his own mess. Tony Dooley had no reaction to this conversation. For him, there was nothing unusual about Randal being incontinent and vomiting or Marcia complaining about Randal’s conduct as if it was his fault. Tony, like Marcia, believed that Randal made himself vomit to get attention and to anger Marcia.

[24] Randal ate his supper very slowly on the evening of September 24. He often took a long time to finish his meals. This also angered Marcia. Near the end of his meal, Randal vomited. Marcia insisted that he did so intentionally. Tony told Randal to throw away the vomit and the rest of his food.

[25] Randal and Tego were sent upstairs to take a bath and prepare for bed. After the boys finished their bath, Marcia was in the bedroom with Randal and Tego. Randal began to climb up the bunk-bed ladder to his bed. Marcia told him to come down. As he climbed down the ladder, he fell to the floor. According to Marcia’s statement to the police, Tego told her that Randal had struck his head. She said Randal was making a strange “whoa-whoa” sound as he lay on the floor. Marcia told Randal to get up and go into the bathroom. Marcia followed and while he sat in the bath tub she began to put cold water on his head. She told the police that Randal was shaking and trembling and that his teeth were bleeding. The Crown experts at trial testified that Randal was likely experiencing a seizure caused at least in part by a head injury suffered earlier that day.

[26] Tony Dooley came upstairs and asked his wife what had happened. She told him that their son had fallen off the bunk-bed ladder. According to her statement, he turned around and went back downstairs. According to some of his various statements, he cautioned Marcia to leave Randal alone because “he’s gonna get us trouble”. In one statement, Tony also stated that he spoke to Randal before returning downstairs. Randal told him that he was fine.

[27] Marcia told the authorities that she eventually removed Randal from the tub, took off his wet pyjamas, spread some lotion on his body and put him in bed. According to her, Randal showed no signs of any head injury or other medical distress. The medical experts testified that by the evening of September 24, Randal was dying.

[28] Tego testified that after Randal fell to the floor from the bunk-bed ladder, Marcia took him into the bathroom and put him in the bath tub. She began to fill the tub with cold water. Randal was still wearing his pyjamas. Marcia ordered Tego to go downstairs to fetch some ice and a spoon. Tego returned with these items and Marcia tried to force the ice into Randal’s mouth. Tony came upstairs, took the spoon away from Marcia, turned off the cold water and the lights in the bathroom and went back downstairs. Marcia followed Tony downstairs leaving Randal, at best semi-conscious, sitting in a tub of cold water in his pyjamas.

[29] Tego pulled his brother from the bathtub, put him over his shoulder and carried him into their bedroom. Tego removed Randal’s wet pyjamas, put dry pyjamas on him and placed him on the bottom bunk of the bed. Tego crawled in beside Randal and fell asleep next to him. When he awoke the next morning and went downstairs for breakfast, he did not know that Randal had died lying beside him some time during the night.

[30] Marcia Dooley told the authorities that she had gone up to the boys’ bedroom during the night at sometime between 2:00 a.m. and 3:00 a.m. Tego testified he did not see or hear Marcia enter the bedroom at any time later that evening. Marcia and Tony gave different reasons for her trip up to the bedroom. Marcia told the authorities that she found Randal lying on the floor. Marcia told Randal to get up and get back into bed. He complied. According to the medical experts, it was very unlikely that Randal could have been ambulatory at that time.

[31] Marcia told the authorities that she got up at around 7:30 the next morning. Tego came downstairs but Randal did not. At about 7:45 a.m., Marcia went up to the bedroom to get Tego’s school clothes. She noticed that Randal’s hand appeared green and that his mouth looked different than usual. She ran downstairs and told Tony Dooley. He went upstairs, checked Randal and called 911.

[32] Three neighbours testified. Two testified that around 10:00 p.m. on September 24, they heard a child crying and a woman’s raised voice inside the Dooleys’ townhouse. The two neighbours heard a man telling the woman to leave the child alone. The third neighbour testified that he heard a male voice coming from the Dooleys’ townhouse at sometime between 6:30 a.m. and 7:30 a.m. on September 25, yelling “this should’na fucking happened”.

[33] Records show that Tony Dooley called 911 at 7:54 a.m. on September 25. He told the operator that Randal had killed himself. The 911 call ended at 7:57 a.m. and Tony Dooley immediately called his sister, Beatrice, in Jamaica, and told her that Randal was dead. Emergency personnel had not yet arrived at the scene. They began arriving just before 8:00 a.m.

[34] Mr. and Mrs. Watts owned a funeral home. They testified that they received a phone call between 7:25 a.m. and 7:40 a.m. on September 25. The male caller had a thick Jamaican or Trinidadian accent. He told Mr. Watts that he was the father of a deceased child and that he wanted Mr. Watts to come and get the boy and take the body to the funeral home. When Mr. Watts asked whether the police or medical personnel had attended, the caller said that neither had been to the home but that he wanted his son’s body picked up by Mr. Watts. Mr. Watts explained that he could not do so without following the proper protocol. A woman came on the phone, told Mr. Watts that she was the deceased boy’s mother and asked him on no less than three occasions to come and get her child’s body. The same male voice then came back on the phone and Mr. Watts again explained that the police had to be notified before he could remove the body.

[35] Mr. Watts received a second call from a woman identifying herself as the deceased boy’s aunt. Mr. Watts could hear the voices from the first call in the background. He again explained that the police had to be notified and that he could not remove the body until they permitted him to do so. Later that day, two women came to the funeral home to make arrangements to have Randal’s body picked up. The friends who made the funeral arrangements for the Dooleys insisted they spoke to Mr. Watts the day after Randal died.

[36] Dr. Humphreys, a neurosurgeon, and Dr. Smith, a pathologist,[^2] were called by the Crown at trial. They testified that Randal had died as a result of a large subdural haematoma (SDH) on the right side of his brain.[^3] Dr. Smith opined that substantial force was needed to cause Randal’s fatal SDH. Assuming that the force was inflicted intentionally, both doctors described three possible mechanisms that could have caused the SDH:

• blunt force trauma to the head perhaps with a hand or fist;
• a violent shaking of Randal’s head; or
• a combination of blunt force trauma and violent shaking.

[37] Drs. Humphreys and Smith rejected the suggestion that the SDH could have been caused when Randal fell from the bunk-bed ladder. In their opinion, the ladder was not high enough to result in a blow of sufficient force to cause the injury. Both doctors believed that Randal had suffered a seizure caused by the SDH, either immediately before he fell off the ladder or immediately after he struck the ground.

[38] Dr. Humphreys estimated that the SDH occurred between 12 and 18 hours before the seizure, and that death followed between three and six hours after the seizure. Dr. Smith indicated that death occurred between midnight and 2:30 to 3:00 a.m., and that the brain injury occurred between 12 and 24 hours before death. Using these estimates, the act or acts that caused the SDH could have been inflicted anytime in the morning or early afternoon of September 24. I will have more to say about the expert evidence when I address the appellants’ “fresh” evidence motion.

[39] In addition to the recent SDH, which the Crown’s experts believed to be fatal, the post-mortem medical examinations showed that Randal had suffered a long list of serious injuries. Many were undoubtedly the product of abuse. There was no evidence that anyone other than the appellants had inflicted any of those injuries.

[40] Some of Randal’s injuries could be linked, through testimony, to a specific event or specific time. However, many of his injuries could not be linked to any specific event. The medical experts could only give rough estimates as to when those injuries occurred. Generally speaking, the evidence indicates that most of the significant injuries must have occurred after Randal finished school in June 1998. Randal was living with and under the care of both appellants from June through to his death in late September.

[41] The first incident of potential abuse disclosed by the evidence occurred in early January 1998. Randal had lost a mitten at school before going home to lunch. When he returned after lunch, his teacher noticed a small mark over his eye. Randal told the teacher that his mother had hit him with a slipper.

[42] Randal broke his arm on January 30, 1998. He underwent surgery at Sick Children’s Hospital on February 1. He suffered a black eye and an abrasion on his cheek around the same time. Tego testified that Marcia broke Randal’s arm when she pushed it forcefully into his jacket. According to Tego, Marcia told him that if anyone asked, he was to say that Randal broke his arm when he slipped on the ice. Marcia offered this explanation to the medical personnel who treated Randal for his broken arm. She later admitted to Beatrice Dooley that she had broken Randal’s arm but insisted that it was an accident.

[43] Viewed in isolation, the injuries outlined above are not necessarily suggestive of parental abuse. However, put in the context of subsequent events and the other injuries suffered by Randal, it can be safely inferred that these were, in all likelihood, the first outward indicators of the pattern of abuse that culminated in Randal’s death.

[44] On April 14, 1998, Randal’s teacher noticed what appeared to be whip marks across Randal’s arms and back. She noted at least 25 marks. The marks were not as severe as those shown in the autopsy photos taken about five months later. Randal’s teacher spoke to the vice-principal, who contacted the Children’s Aid Society and the police. When Randal did not attend school the next day, the vice-principal called Marcia Dooley to inquire about Randal. Marcia was rude and adversarial toward the vice-principal.

[45] The police spoke to Marcia Dooley about Randal’s injuries. She told them that the injuries were inflicted on Randal by his cousin when they played a Jamaican game together called “lick a lick”. Marcia would not allow the police to speak to Randal alone. After some further investigation, the police decided to accept Marcia’s explanation for the injuries. It was clear from the evidence led at trial that she lied to the police during this investigation.

[46] Randal’s teachers kept a close lookout for any signs of abuse during the rest of the school year. They saw nothing that concerned them. Randal visited his family doctor in May of 1998, and the doctor saw no signs of physical abuse. However, a neighbour noticed welts and cuts on Randal’s chest and back when she took Randal swimming in the summer of 1998. He seemed sickly and had difficulty catching his breath.

[47] Tego Dooley testified that Marcia Dooley often disciplined Randal when he vomited or was incontinent. After the family moved to the new townhouse on McCowan Road in August 1998, Marcia began to beat Randal frequently with her fists on his back and chest. Tego said that on two occasions, while Randal was lying on his back, Marcia jumped on him with her feet. She also hit Randal on the legs with a broomstick.

[48] There was considerable evidence that Marcia Dooley disliked Randal. She believed that he was intentionally vomiting, urinating and defecating to make her life more difficult. Marcia would sometimes make Randal eat his own vomit as punishment for this “misbehaviour”. She thought that Randal was “slow” and complained to her friends and sister about him. Marcia told a friend that she wanted Randal sent back to Jamaica because she was fed up cleaning up after him, but that Tony resisted, saying that he would appear to be a failure if he had to send Randal back to Jamaica.

[49] Prior to Tony’s return to Canada in May 1998, there was no evidence linking Tony Dooley to the abuse of Randal. Tego, who obviously favoured his father over Marcia, his stepmother, testified that Tony did not abuse Randal. Tony was, however, in the home and responsible for Randal’s wellbeing on a daily basis between June and September 1998, when the worst of the abuse occurred.

[50] Tony did admit one significant incident of abuse. In his statements to the authorities after Randal’s death, Tony acknowledged that he had beaten Randal on the buttocks with a belt in late August 1998, after Marcia Dooley had complained about Randal defecating in his pants. Tony insisted that he had left Randal’s pants on when he administered the flogging, and that Randal’s buttocks were only “slightly” marked from the beating. However, he admitted that he had used sufficient force that the belt shredded while he used it to flog Randal. Tony also admitted, after some evasiveness, that he kept Randal out of school throughout the month of September, fearing that his teachers would see the marks left by the beating he had given Randal and call the Children’s Aid Society.

[51] Although Tony professed to love Randal, he described him as a clumsy, accident-prone child with no friends. Tony also indicated that he had some doubt about Randal’s paternity, although it would appear he was eventually satisfied that Randal was his son.

[52] The injuries that could be related to the specific events testified to by the witnesses are but a few among the many suffered by Randal. When Randal died, almost every part of his body bore the marks of physical abuse. Only his scalp, the palms of his hands and the bottoms of his feet showed no obvious signs of abuse. Most of the injuries occurred within a few weeks or months of Randal’s death. Many occurred within a few days of his death.

[53] Post-mortem examinations showed that Randal had suffered at least two significant head injuries prior to the fatal SDH. There was an older subdural haematoma, similar to the recent SDH. The older subdural haematoma had occurred anywhere from six months to more than one year before Randal’s death. Dr. Smith categorized it as a significant head injury. When Randal suffered the older subdural haematoma, he would have shown indicia of a head injury such as vomiting, sleepiness and possibly seizures. Dr. Smith testified that the presence of the prior subdural haematoma in the same part of the brain as the recent SDH made it possible that the second SDH may have been caused by less force than would have been required otherwise.

[54] The post-mortem also showed some bleeding at the front cortex of Randal’s brain. Dr. Smith estimated that the injury that caused this bleeding occurred anytime from 10 days to several weeks before Randal’s death. The location of the bleed suggested a contracoup injury.

[55] Randal had 13 definite rib fractures and four possible rib fractures. Ribs on both sides of the rib cage were fractured. The fractures had begun to heal, suggesting to Dr. Smith that they had occurred between one week and six weeks prior to death. The fractures on the right side of the rib cage lined up, suggesting they could have been inflicted at the same time. The fractures on the left side of the rib cage did not line up and were probably not inflicted at the same time.

[56] The number and pattern of the rib fractures, along with the absence of any history of an accident, strongly suggested that the fractures were caused by the deliberate infliction of significant blunt force trauma. The rib fractures, in the days immediately following their infliction, would have caused Randal tremendous pain and made it difficult for him to breathe.

[57] Randal had multiple injuries to various internal organs. His diaphragm, adrenal gland, and psoas muscle – a muscle running from the lumbar spine toward the pelvis – were damaged. His liver was lacerated. Estimates placed the timing of these injuries at between days and a number of weeks before Randal’s death. Significant force was needed to cause the injuries to these well-protected internal organs. The injuries could have been caused by punching or kicking Randal, if sufficient force was used, or by jumping on him. The number and location of the injuries suggested that they may have been caused by two significant blows, one to Randal’s back and the other to his abdomen. Some of these internal injuries may have been caused at the same time as some of the fractures to Randal’s ribs. The internal injuries would have left Randal in considerable pain. Randal would have lost his appetite and experienced nausea and vomiting. The liver laceration led to bleeding into the peritoneal cavity that would have caused significant pain.

[58] An acute lumbar fracture was also found in the post-mortem examination. This injury was no more than a few days old when Randal died. The lumbar fracture was an uncommon one, and was caused by the application of significant force to Randal’s lower back. It would have caused considerable pain and led to painful back spasms.

[59] Randal’s back, abdomen, neck and legs were covered in injuries and scars of various ages. Some were infected. The injuries and scars overlapped, indicating that new injuries had been inflicted on older healing injuries. The shape and nature of the injuries and scars indicated that different instruments had been used to beat Randal: some of the scars suggested a belt, others the end of a bungee cord, others a broom handle and, still cross, a hanger. Randal also had defensive injuries on his hands and forearms. Swelling around Randal’s left eyebrow and injuries on his back, his upper lip and on one of his fingers were very recent and had probably been inflicted within one-to-three days of his death.

[60] On top of the numerous physical injuries, Randal had acute pneumonia on the day he died, which had come on about one-to-three days earlier. Some of Randal’s injuries, particularly those to his ribs, may have predisposed him to pneumonia. The pneumonia Randal suffered in his last days would likely have caused coughing, shortness of breath, loss of appetite, vomiting, fever and lethargy.

III

THE APPLICATION TO ADDUCE FRESH EVIDENCE ON APPEAL:

(a) Overview

[61] The evidence brought forward on appeal falls into two broad categories. First, the appellants led the evidence of Dr. David Ramsay, an eminently qualified neuro-pathologist. Dr. Ramsay’s evidence spoke to the cause of Randal’s death, the mechanisms through which the force that caused the SDH may have been inflicted and the force required to cause the SDH. In response to Dr. Ramsay’s opinion, the Crown adduced the evidence of Dr. Michael Pollanen, a renowned forensic pathologist. Dr. Pollanen addressed the same issues as Dr. Ramsay. Dr. Pollanen agreed with some of Dr. Ramsay’s opinions. In other respects, he supported the opinions given by the Crown experts at trial. The Crown and defence accept that the potential cogency of Dr. Ramsay’s evidence should be considered having regard to the evidence of Dr. Pollanen, both as it supports and as it conflicts with Dr. Ramsay’s evidence. In effect, for the purpose of determining whether the evidence should be admitted on appeal and a new trial ordered, counsel have treated the evidence of Drs. Ramsay and Pollanen as parts of a single whole.

[62] The second category of evidence put forward on appeal consists of the affidavits and related documentation of Tony Dooley’s trial counsel. This evidence seeks to explain counsel’s decision at trial not to challenge the Crown’s expert evidence, despite having conferred with Dr. Ramsay and other experts who expressed their disagreement with some of the opinions put forward by the Crown experts.

[63] Mr. Chan, who skilfully advanced Mr. Dooley’s position on this issue, accepts that trial counsel for Tony Dooley interviewed Dr. Ramsay and was aware of the thrust of the opinions he now advances. Mr. Chan further candidly acknowledges that counsel for Tony Dooley diligently explored the possibility of leading medical opinion evidence at trial, and made an informed and reasonable tactical decision to rely on the Crown’s medical evidence, which, in at least one respect, was potentially more favourable to Tony Dooley than the opinions advanced by the experts consulted by the defence. Counsel submits, however, that even where evidence proffered on appeal was available at trial and was not led as the result of a tactical decision, this court will still receive the evidence where the interests of justice so demand. He submits that Dr. Ramsay’s evidence, supported in some respects by Dr. Pollanen’s evidence, is so cogent on the crucial questions of whether Tony Dooley inflicted the fatal injury and the intent of the party who inflicted that injury that the evidence should be received on appeal and a new trial ordered so that the medical evidence can be fully explored.

[64] Marcia Dooley joins in the application to adduce the evidence of Dr. Ramsay. She has not offered any explanation for not leading that evidence or similar evidence at trial. Clearly, Marcia Dooley’s silence on appeal cannot put her in a better position than Tony Dooley, who has offered a comprehensive and credible explanation for the tactical decision made on his behalf at trial. Absent any explanation from Marcia Dooley, or a claim of ineffective assistance of counsel, this court must proceed on the basis that counsel for Marcia Dooley chose, for good reasons, not to challenge the Crown’s medical evidence.

[65] The Crown opposes the admissibility of Dr. Ramsay’s evidence. The Crown submits that evidence can be received on appeal only where that evidence, when considered with the rest of the record, could reasonably be expected to have affected the outcome at trial. The Crown contends that Dr. Ramsay’s evidence does not cross this cogency threshold. Alternatively, Crown counsel argues that even if the evidence is sufficiently cogent to clear the prerequisite to admissibility on appeal, it falls far short of the degree of cogency required to justify admission of evidence on appeal where a tactical decision was made at trial not to lead that evidence.

[66] Dr. Ramsay’s opinions addressed several features of the expert medical evidence led by the Crown at trial. As I understand the substance of his evidence, it is ultimately offered in support of three propositions:

• the SDH was not proven to be the sole cause of death;
• considerably less force may have been needed to cause the SDH than was suggested in the evidence adduced through the Crown’s experts at trial; and
• it is very unlikely that the shaking of Randal was the mechanism that caused the SDH.

[67] Counsel for Mr. Dooley submits that all three propositions, if accepted by a trier of fact, would weaken the Crown’s contention that the person who caused Randal’s death had the requisite mens rea for murder. Counsel also submits that the assertion that shaking was not involved in causing the SDH would weaken the assertion advanced at trial that Tony Dooley, as a male, was more likely than was his wife, Marcia, to have shaken Randal with the force required to cause the SDH. On this latter point, it must be recalled that the Crown did not advance the theory that Tony Dooley was the perpetrator: that position was advanced on behalf of Marcia Dooley.

[68] I propose to summarize the substance of the medical evidence tendered on appeal by reference to the factual issues it addresses. I will then consider whether any of that evidence should be admitted on appeal.

(b) The Evidence

(i) Was the recent SDH fatal?

[69] At trial, Dr. Smith and Dr. Humphreys agreed that Randal’s death was caused by the SDH. Dr. Humphreys explained that an SDH of the size found in Randal disturbs and distorts the architecture of the brain, and eventually impairs and destroys brain functions essential to life. Drs. Smith and Humphreys believed that the SDH occurred in the 24 hours before Randal died and prior to his fall from the bunk-bed ladder. They referred to the fatal SDH as the recent SDH to distinguish it from a subdural haematoma suffered at some earlier point in time.

[70] Dr. Ramsay agreed that Randal had been severely abused in his lifetime. He also agreed that Randal had suffered a significant SDH in the 24 hours before his death. He further agreed that the SDH occurred prior to Randal’s fall from the bunk-bed ladder.

[71] Dr. Ramsay found insufficient neuropathological evidence to “prove” that Randal’s SDH was fatal. He accepted that the opinion that the SDH was fatal was a reasonable one. Indeed, in his own textbook, Dr. Ramsay had indicated that an SDH of the size found in Randal’s head was “more likely than not to cause death”. Dr. Ramsay testified, however, that several features normally found in the brain after a fatal SDH were not evident in Randal’s brain. He said the following:

I do not believe that the abnormalities that are present in this brain allow us to prove that the subdural haematoma was the sole cause of death. That’s all. [Emphasis added.]

[72] Dr. Ramsay advanced two scenarios that may have led to Randal’s death. One posited one or more additional assaults after the assault causing the SDH. The second scenario assumed a re-bleed of the older subdural haematoma that arose either spontaneously or as the result of a “mild blunt force head injury”. Dr. Ramsay admitted that both theories were speculative. Neither theory eliminated the recent SDH as a contributing cause of death, particularly given Randal’s severely compromised physical condition on September 24.

[73] Dr. Pollanen agreed with Drs. Smith and Humphreys that the recent SDH was fatal. He rejected the scenarios advanced by Dr. Ramsay as having no empirical support in the medical data relevant to Randal’s death. Dr. Pollanen suggested that, as a pathologist, when attempting to determine a cause of death he was accustomed to examining a broader spectrum of information than would normally be examined by a neuropathologist. In concluding that the SDH was lethal, Dr. Pollanen had regard to the neuropathological findings, and to a considerable body of information beyond those findings.

[74] The evidence adduced on appeal, if anything, strengthens the opinion proffered at trial that Randal suffered a fatal SDH within 24 hours of his death. At its highest, Dr. Ramsay’s opinion suggests that the recent SDH suffered by Randal contributed to Randal’s death, but was not the only cause of it. To the extent that Dr. Ramsay suggests that there may have been assaults after the infliction of the SDH, his opinion hardly helps Tony Dooley. It was Tony Dooley’s position at trial, based on the Crown’s medical evidence, that the assault that caused the fatal SDH must have occurred on the morning of September 24. Tony Dooley was out of the home for much of the morning. A theory that involved assaults on Randal later on September 24 could have implicated Tony Dooley as a co-perpetrator. His trial counsel was alive to this difficulty; it is one of the reasons she chose not to challenge the thrust of the Crown’s medical evidence. Nor, in my view, does it help Marcia Dooley to assert that Randal was assaulted more than once on September 24.

(ii) Could the SDH have been caused by violent shaking?

[75] Drs. Smith and Humphreys testified that they could not identify the mechanism that caused the SDH with any certainty. As there was no evidence that Randal had suffered the kind of accident that could explain the injury, and as it was clear that he was a badly abused child, both doctors were satisfied that the SDH was caused by an assault on Randal. Neither Dr. Ramsay nor Dr. Pollanen took exception to this reasoning.

[76] Dr. Humphreys testified that based on his observations of the SDH and haemorrhaging behind Randal’s eyes, he believed that the SDH may have been caused by violent shaking, blunt force trauma to the head or a combination of the two, either as part of the same incident or during two discrete but temporally-connected assaults. My review of Dr. Humphreys’ evidence does not suggest that he expressed a clear preference for one mechanism over the others.

[77] Dr. Smith offered the same, three possible explanations for Randal’s head injury. In his re-examination, he testified that the SDH was best explained “on the basis of blunt impact or a combination of shaking and blunt impact versus pure shake without or in the absence of blunt impact.”

[78] In cross-examination by counsel for Marcia Dooley, Dr. Smith offered the opinion that if Randal’s SDH was caused by shaking, the amount of force needed to cause that injury was more consistent with shaking by a man than by a woman. Dr. Smith offered no basis for this assessment and the trial judge immediately intervened to make the obvious observation that Dr. Smith’s opinion “depends on the strength of the person”.

[79] Dr. Ramsay doubted that Randal’s SDH was caused by shaking. He gave several reasons for that scepticism, including Randal’s age, the nature of Randal’s SDH and the very limited retinal haemorrhaging noted in the post-mortem material. Dr. Pollanen went further than Dr. Ramsay. He described shaken baby syndrome as a controversial diagnosis in forensic pathology. He was particularly sceptical of that diagnosis in a case involving a seven-year-old child with a bruise on his head, which suggested that blunt force trauma was the cause of the SDH.

[80] Many of the reasons given by Dr. Ramsay and Dr. Pollanen for doubting that shaking was the mechanism that caused Randal’s injury were put to Drs. Smith and Humphreys at trial during cross-examination. They acknowledged that shaken baby syndrome was a controversial diagnosis, particularly in respect to a child as old as seven years. Dr. Smith also agreed that the haemorrhaging behind the eyes was not as extensive as he would have expected if shaking was the operative mechanism.

[81] While the evidence adduced on appeal does not exclude shaking as a possible mechanism causing the SDH, I think it is fair to say, especially in the light of Dr. Pollanen’s evidence, that it discounts that possibility. It leaves unchallenged, however, the evidence that Randal’s SDH was caused by an assault involving significant force.

(iii) The amount of force used to cause the SDH

[82] Neither Dr. Smith nor Dr. Humphreys purported to be able to quantify the amount of force used to cause Randal’s SDH. Dr. Humphreys specifically testified that he could not offer an opinion as to the amount of force needed to inflict the injury. Dr. Humphreys spoke of “sustained and vigorous shaking”, while Dr. Smith referred to “very violent” or “very forceful” shaking. Dr. Smith explained that if the SDH was caused by blunt force trauma, that trauma may have involved a hit to Randal’s head by a kick with an un-shoed foot, by the side of a fist, or with the palm of a hand “if there was enough violence behind it”.

[83] Dr. Ramsay agreed that one could not specify the amount of force needed to cause the SDH. He also indicated that the older subdural haematoma on the same side of the brain may have re-bled either spontaneously or because of some mild, blunt-force injury. Dr. Smith was not asked at trial about the possibility of a spontaneous re-bleed of the old subdural haematoma. He did, however, agree on cross-examination that it was possible that the presence of the old subdural haematoma may have rendered Randal more susceptible to a second subdural haematoma in the same area of the brain, and that the second subdural haematoma may have been caused by less force than would have been required to inflict that kind of injury on a person who did not have an older subdural haematoma. Dr. Smith testified that there was a debate in the literature as to whether a prior subdural haematoma could make one more liable to suffer a second subdural haematoma in the same location.

[84] Dr. Pollanen estimated the amount of force needed to cause the SDH as “substantial”. Dr. Pollanen reasoned that any force that both bruised the head and resulted in a subdural haematoma must, by definition, be “substantial”. He noted that had a fracture also occurred, the force would have been even more substantial. Dr. Pollanen strongly resisted any attempt to quantify the force needed, or to compare the force used to cause a particular subdural haematoma with the force found in other incidents where victims suffered subdural haematomas, such as car accidents.

[85] Dr. Pollanen was not prepared to agree that the fatal head injury may have been a re-bleed of the older SDH. He indicated that there was no empirical way to confirm that re-bleeding occurred in this case. His review of the academic literature indicated that a re-bleed was more probable in an infant than in older children or adults. Dr. Pollanen characterized the evidence in the academic literature as “anecdotal”, and insufficient to support an expert opinion on the matter. In his report, he observed, “the ‘re-bleeding hypothesis’ is not widely accepted”.

[86] In his cross-examination, Dr. Ramsay conceded that there was little support either in this particular case or in the academic literature for the hypothesis that Randal had suffered a re-bleed from the earlier subdural haematoma. In oral argument, counsel all but abandoned any reliance on the re-bleed theory.

[87] The evidence proffered on appeal does not significantly contradict the trial evidence concerning the amount of force needed to cause Randal’s SDH. Substantial or significant force was used, as evinced by the bruise on Randal’s head and the SDH. The degree of force could not be quantified accurately.

[88] Counsel for the appellants argue that even if the “fresh” evidence does not alter the record as to the nature of the force required to cause the SDH, it does point out that the Crown experts, particularly Dr. Humphreys, used inapt analogies by comparing the force used to cause Randal’s SDH to the amount of force exerted in a car accident or a fall from a two-or-three-storey building. Dr. Pollanen described these analogies as unhelpful, and potentially misleading.

[89] It is not clear to me that Dr. Humphreys intended to suggest that the force used to assault Randal was the equivalent of the force found in cases involving car accidents and falls from two-or-three-storey buildings that result in subdural haematomas. Several times in his evidence, Dr. Humphreys testified that if the SDH was the product of blunt force trauma, that trauma could have been inflicted by a blow with the hand or a kick. These possibilities do not suggest the kind of force found in a car accident or a fall from a height of two or three storeys. Dr. Humphreys’ references to car accidents and falls from buildings occurred in the context of explaining the kinds of accidental situations in which the constellation of brain injuries suffered by Randal are observed. He testified that the literature identified car crashes, falls from two or three storey buildings and intentionally inflicted trauma as the three circumstances in which these kinds of brain injuries have been suffered by children. This evidence was relevant to exclude the possibility of any accidental injury to Randal. There was, of course, no evidence that he had suffered the kind of accident which, in Dr. Humphreys’ opinion, could lead to the injuries that Dr. Humphreys saw when he examined the post-mortem material.

(iv) Could the fall from the bunk-bed ladder have caused the fatal injury?

[90] Dr. Smith and Dr. Humphreys testified that the fatal SDH could not have been caused by the fall from the bunk-bed ladder. In their opinion, the ladder was not high enough for a fall from it to cause the SDH.

[91] Dr. Ramsay accepted that the fall from the bunk-bed ladder could not have caused the SDH. However, in his opinion, that fall could have worsened the intra-cranial bleeding caused by the SDH and, therefore, played a role in Randal’s death. While he accepted that a fall from the short distance from the ladder to the floor of the bedroom would not otherwise produce this kind of injury, he believed that the fall could be fatal in the case of a child who was suffering from the many injuries, including the SDH, that Randal had when he fell from the ladder.

[92] Dr. Pollanen did not accept Dr. Ramsay’s opinion as to the potential significance of the fall from the ladder. He testified that falls from that height very seldom prove fatal in children. He believed that Randal’s fall was more likely evidence of Randal’s “collapse” as he proceeded through the dying process.

[93] Dr. Ramsay’s evidence concerning the possible relevance of the fall from the bunk-bed ladder to Randal’s death does not affect the evidence that the recent SDH was an operative cause of Randal’s death. Dr. Ramsay agreed that the SDH preceded the fall and remained a significant factor in Randal’s death. He described the SDH as “weakening the child during the day”. Dr. Ramsay also accepted that Randal’s fall may well have been the product of a seizure and that the seizure “could be caused by events associated with the acute [SDH]”. Finally, Dr. Ramsay does not suggest that if the fall from the ladder was a contributing factor in the death it would mean that less force was used to inflict the recent SDH than would have been required otherwise.

(c) Trial Counsel’s Decision Not to Call Expert Evidence

[94] Tony Dooley was represented by two sets of counsel during different stages of the trial proceedings. There is no suggestion that he did not receive competent and effective legal assistance throughout the trial process. His lawyers appreciated early on that the cause of Randal’s death was an important issue on which expert evidence might be of assistance. Counsel were aware, through the disclosure process, of the positions being taken by the Crown experts. Counsel also knew of the growing concern among defence counsel about the competence and credibility of Dr. Smith. Counsel obtained and organized the information needed to launch an all out attack on Dr. Smith’s credibility in the event that they decided that challenging Dr. Smith’s opinion was the appropriate strategy.

[95] Counsel for Tony Dooley sought advice from various medical experts, including Dr. Ramsay. Counsel spoke with Dr. Ramsay in April 2000. According to the notes of that conversation, Dr. Ramsay advanced much the same opinion in his conversation with counsel in 2000, albeit in less detail, that he advanced several years later in preparation for this appeal.

[96] Other experts consulted by defence counsel also took exception to some parts of the opinions advanced by the Crown experts. Several of them took issue with the contention that shaking may have played a role in causing Randal’s SDH. Although counsel ultimately did not call any of this evidence, the information given to counsel by these experts helped shape counsel’s cross-examination of the Crown experts.

[97] Ultimately, counsel decided not to call any expert evidence. The primary reason given for that decision is found in the affidavit of Ms. Mara Greene, lead counsel at trial. She explained that the Crown’s theory – that the fatal SDH was caused by an assault within 24 hours of Randal’s death – put Tony Dooley in a better position than the opinions advanced by experts contacted by the defence, which suggested Randal’s death may have been caused by a series of assaults. Her affidavit contains the following:

[Ms.] Kellway [co-counsel] and I were reluctant to call evidence at trial to support the theory that Randal Dooley’s death was brought about by a series of less severe injuries rather than a single, severe injury (ie. evidence on the possibility of a re-bleed due to Randal Dooley’s prior head injury and evidence critical of shaken baby syndrome) because of the risk that responsibility for such a series of injuries would be attributed back to Mr. Dooley (rather than to his co-accused, Marcia Jacqueline Dooley). My recollection of my view of the case now, some six years later and without reading the trial transcripts and the entire file, is that Dr. Smith’s evidence on the timing of the fatal injury provided Mr. Dooley with a complete alibi so that he could not have committed the fatal blow. In light of the extensive and overwhelming abuse suffered by Randal Dooley, and the amount of time Mr. Dooley was away from the residence, we decided that the best defence for Mr. Dooley was to keep Dr. Smith’s opinion regarding the cause and time of death [intact] and thereby give Mr. Dooley an alibi.

[98] Ms. Greene’s recollection that the Crown expert evidence provided a “complete alibi” is not accurate. On the Crown experts’ evidence, the fatal assault could have been inflicted on the morning of September 24 before Tony Dooley left the house at about 8:30 a.m. Nevertheless, Mr. Dooley was absent from the home during a significant part of the time period during which the Crown’s experts suggested the fatal injury was inflicted.

[99] While the tactical advantage of not challenging the Crown experts’ evidence as to the cause of death was the primary reason that counsel for Mr. Dooley chose not to call competing expert evidence, counsel also had specific reasons for not calling particular experts whom they had consulted. The overall opinion of at least one of the experts was very detrimental to the defence, even though that expert disagreed with the Crown experts on some issues. Defence counsel considered that some of the experts they had consulted were insufficiently qualified. One of the experts was seen as having significant credibility issues. Dr. Ramsay had advised counsel that he did not wish to testify. Dr. Ramsay and defence counsel now, many years after the fact, have different recollections of why Dr. Ramsay took that position. For present purposes, Dr. Ramsay’s motivation is not important. The defence knew that Dr. Ramsay would be a reluctant witness if he was required to testify for the defence.

(d) Analysis

[100] Section 683(1) empowers this court to receive evidence on appeal where “it considers it in the interests of justice” to do so. The case law has developed well known criteria to guide the exercise of this broad discretion. The Crown accepts that the medical evidence advanced on appeal meets all but one of those criteria. The evidence of Drs. Ramsay and Pollanen is receivable under the evidentiary rules governing the admissibility of expert opinion evidence and is relevant to a fact in issue. Both experts are credible witnesses.

[101] In resisting the admission of the evidence, the Crown focuses on what is described as the cogency criterion. The Crown submits that the evidence put forward on appeal is not sufficiently cogent to warrant its admission. The level of cogency demanded as a prerequisite to admissibility of evidence on appeal is set out as the fourth criterion in the seminal case of Palmer v. The Queen (1979), [1980] 1 S.C.R. 759, at p. 775:

It [the proffered evidence] must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.[^4]

[102] In R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 73-82, LeBel J., for the court, addresses the cogency requirement for the admissibility of fresh evidence on appeal. He distinguishes between evidence proffered on appeal that should have been disclosed prior to trial, and evidence proffered on appeal that could not, or need not have been disclosed. LeBel J. holds that where the evidence proffered on appeal should have been disclosed, the Palmer cogency criterion does not apply. The appellant need only show that there was a “reasonable possibility” that the evidence improperly withheld at trial could have affected the outcome of the trial, or that the non-disclosure of that evidence affected the fairness of the trial. In discussing the cogency requirement applicable where Palmer applies, LeBel J. refers to the language from Palmer, quoted above, and says at para. 78:

That test is more exacting than the mere reasonable possibility test: it assigns the applicant the burden of showing that the failure to disclose probably affected the result of the trial.[^5] [Emphasis in original.]

[103] I do not understand LeBel J. to use the word “probably” in the same sense that the word is used when describing the balance-of-probabilities standard of proof. Used in that context, the word means a greater-than-50-per-cent likelihood. In other contexts, “probability” describes a degree of likelihood that may be more or less than 50 per cent, or may not be subject to numerical quantification. I understand LeBel J. to use the word “probably” to distinguish the higher standard applicable generally under Palmer from the lesser, reasonable possibility test to be applied to non-disclosed or improperly-withheld evidence.

[104] I do not believe it is helpful for an appellate court to attempt to measure the impact that “fresh” evidence may have against the balance of probabilities standard. That standard is ill suited to predictions about the possible outcome of a hypothetical trial that included the “fresh” evidence. The language used in Palmer captures the essence of the analysis that must be performed, and I see no reason to attempt to restate the Palmer criterion using different language.

[105] An appellate court must determine whether the proffered evidence raises a concern over the validity of the trial verdict sufficient to justify a new trial, by examining the proffered evidence in the context of the trial record and deciding whether “if believed it could reasonably ... be expected to have affected the result.” However, evidence that meets this level of cogency, contemplated in Palmer, will not always be admitted. An appellate court must still address other factors relevant to the interests of justice.

[106] The interests of justice inquiry mandated by s. 683(1) explores interests broader than those of the individual appellant, including an interest in preserving the integrity of the trial process. That integrity depends in large measure on the recognition that the outcome of a properly conducted trial should be taken as final and determinative of the lis between the parties. Verdicts that fall too easily under the weight of fresh evidence demean the significance of the trial and diminish the validity of all verdicts.

[107] The broader, societal component of the interests of justice inquiry requires an examination of the reason the evidence was not led at trial. Where, as here, the proffered evidence was not led because trial counsel decided not to pursue that line of evidence, counsel’s tactical decision must weigh heavily against admitting the evidence on appeal: Reference Re R. v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135 (Ont. C.A.), at p. 144; R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.), at paras. 39-41, leave to appeal to S.C.C. refused, [2007] 3 S.C.R. xi; Reference re: Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 (Ont. C.A.), at paras. 101-102; R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411.

[108] This court has recognized, however, that even where the evidence was available at trial and was not led for tactical reasons, there will be cases where the proffered evidence is so cogent that it must be received on appeal. In such cases, the interests of justice require receiving the evidence, because it is sufficiently compelling to give strong reason to doubt the factual accuracy of the trial verdict: R. v. Maciel, at paras. 50-51.[^6]

[109] The appellants could have led the same kind of evidence at trial that they now seek to lead on appeal. As a result, they must demonstrate that the evidence goes beyond the level of cogency described in Palmer. In my view, the chances of this evidence having affected the verdict are remote. It cannot reasonably be expected to have affected the result. As such, it falls short of meeting the level of cogency required by Palmer and does not approach the level of cogency required by the interests of justice for the admission of evidence on appeal that was not led at trial due to an informed and reasonable tactical decision by trial counsel.

[110] Dr. Ramsay’s evidence suggests that the recent SDH was not the sole cause of Randal’s death. He indicates that Randal may have suffered additional assaults after the one that caused the SDH. Dr. Ramsay does not, however, dispute that the recent SDH was a contributing cause in Randal’s death. Nor does Dr. Ramsay’s evidence concerning the potential relevance of the fall from the bunk-bed ladder significantly alter the trial evidence relating to the cause of death. Dr. Ramsay acknowledges that even if the fall from the bunk-bed ladder played some role in Randal’s death, the recent SDH remained an operative cause of that death and probably of the fall from the ladder. The evidence proffered on appeal suggests additional events that may have factored into the causation mix, but does not undermine the fundamental proposition that Randal suffered a fatal SDH within 24 hours of his death.

[111] The fresh evidence also does not undermine the opinion advanced at trial that the recent SDH was caused by assaultive conduct. The possibility of a spontaneous re-bleed of the earlier subdural haematoma, advanced by Dr. Ramsay in his report, was effectively discounted by Dr. Pollanen. In cross-examination, Dr. Ramsay all but abandoned the spontaneous re-bleed theory.

[112] Nor does Dr. Ramsay’s evidence significantly alter the trial evidence concerning the amount of force needed to cause the fatal SDH. No one seriously contested that substantial or significant force would be required. None of the experts attempted to quantify that force. Dr. Ramsay and Dr. Pollanen discounted shaking as the mechanism that may have caused or contributed to the SDH. Even if shaking is removed entirely from the factual scenario, however, the evidence remains that the fatal SDH was caused by an assault on Randal involving significant force. Dr. Pollanen’s evidence speaks powerfully to a significant blow to Randal’s head as the cause of the SDH. I do not think that removing the possibility of shaking as the mechanism, or as one of the mechanisms causing that injury would have any impact on a jury’s fact-finding in this area.

[113] The opinion evidence proffered on appeal adds to the medical evidence heard at trial on the same issues. Dr. Ramsay and Dr. Pollanen brought perspectives to the medical and pathological evidence that differed somewhat from those brought by Dr. Smith and Dr. Humphreys. However, in the end, the central features of the trial evidence remain untouched:

• Randal’s death was caused by an SDH suffered within 24 hours of his death;
• the SDH was caused by an assault involving significant force to Randal’s head; and
• when was Randal was assaulted and suffered the SDH, he was already in very poor physical condition. His condition was also deteriorating.

[114] It would require a very generous reading of the fresh evidence to conclude that the proffered evidence could reasonably be expected to have affected the verdict. On no interpretation does the fresh evidence reach the level of cogency required to justify its admission in the face of the tactical decision to not go down that evidentiary road at trial.

IV

THE OTHER GROUNDS OF APPEAL

A. The Aiding and Abetting Instruction

[115] The appellants take issue with several aspects of the trial judge’s directions to the jury on aiding and abetting. The court required submissions from the Crown on one of those arguments. I will address that argument.

[116] Counsel for the appellants submit that the trial judge erred in law by failing to properly instruct the jury on the conduct requirement of aiding and abetting. They submit the jury must be instructed that to find liability as an aider or abetter, the non-perpetrator’s conduct must have the effect of assisting or encouraging the perpetrator in the infliction of the fatal assault. In their factum, counsel for Tony Dooley argued that conduct or an omission could only have the effect of aiding and abetting if that conduct or omission “caused” the perpetrator to commit the homicide. I do not understand counsel to have gone so far as to argue that the Crown must prove that “but for” the act of aiding or abetting, the homicide would not have occurred. Rather, as I understand the submission, the jury should have been told that before the alleged act of aiding or abetting could render the non-perpetrator liable for the homicide as an aider or abetter, that alleged act must have played some causative role in bringing about the homicide.

[117] Liability as an aider or abetter has both a conduct component and a culpable mental state component. Both components tie the accessory’s liability for the substantive crime to the actual commission of that crime by another. Accessorial liability is not inchoate.

[118] The appellants’ argument focuses on the conduct component of aiding and abetting. The nature of the conduct that can amount to an act of aiding or abetting is coloured by the mental state accompanying that act. The Crown must prove that the alleged aider or abetter acted “for the purpose” of aiding or abetting – meaning that they acted with the intention of aiding or abetting the perpetrator in the commission of the crime. This requirement can only be met if the aider or abetter has knowledge of the crime that the perpetrator intends to commit. Without that knowledge, the alleged aider or abetter cannot act “for the purpose” of aiding or abetting the perpetrator in the commission of the crime: Criminal Code, ss. 21(1)(b), (c); Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, at p. 896; R. v. Hibbert, [1995] 2 S.C.R. 973, at paras. 36-37; R. v. Maciel, at paras. 86-87.

[119] The conduct component that must accompany the culpable mental state is captured by the words “aids” and “abets”. Conduct can include omissions. A failure to act where there is a legal duty to do so, what V. Gordon Rose calls “culpable acquiescence”, can constitute an act of aiding or abetting: see V. Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at pp. 18-19; Richard Card, Card, Cross and Jones Criminal Law, 18th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 760; David Ormerod, Smith and Hogan Criminal Law, 12th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 190; Brent Fisse, Howard’s Criminal Law, 5th ed. (North Ryde, Austl.: Law Book Company, 1990), at pp. 326-27; R. v. Nixon (1990), 57 C.C.C. (3d) 97 (B.C.C.A.), at p. 114, leave to appeal to S.C.C. refused, [1991] 1 S.C.R. xii.[^7]

[120] I accept that, as the aider or abetter’s liability is for the substantive crime and is not for some preparatory step toward the commission of that crime, there must be a connection between the alleged act of aiding or abetting and the actual commission of the crime by the person who is aided or abetted. To take Mr. Ruby’s example, an individual who shouts encouragement to another to commit a crime from a distance where the other person could not possibly hear the shouts of encouragement could not be said to have encouraged the commission of that crime. As such, that person could not be liable as an abetter should the other person commit the crime.

[121] While I am satisfied that in order to find liability there must be a connection between the offence and the acts of alleged aiding or abetting, I would not use the language of causation to describe that connection. The connection required in the context of accessorial liability varies. Some kinds of culpable assistance have no causative link to the crime committed. If “A” holds the victim down while the perpetrator kills the victim, “A” could not escape liability if, before “A” held him down, the victim had been rendered defenceless by the acts of others. Similarly, if “A” encouraged the perpetrator to commit a homicide and the perpetrator did so after receiving that encouragement, “A” could not escape liability even if the perpetrator would have killed the individual irrespective of the encouragement. The varying nature of the causal link between the accessorial act and the substantive crime renders a description of accessorial liability in terms of causation difficult and unhelpful: see J.C. Smith, “Aid, Abet, Counsel, or Procure” in P.R. Glazebrook, ed., Reshaping the Criminal Law: Essays in honour of Glanville Williams (London: Stevens & Sons, 1978), at p. 120; K.J.M. Smith, “Complicity and Causation”, [1986] Crim. L. Rev. 663.

[122] Another reason for avoiding the language of causation when describing accessorial liability arises in the context of a jury charge. Causation must be explained to a jury in terms of the perpetrator’s liability for the alleged crime. Causation in the accessorial context can take on quite a different meaning. An attempt to explain two different kinds of causation to a jury in the same case could well lead to confusion.

[123] The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory’s conduct and the perpetrator’s commission of the crime is captured by phrases such as “actual assistance or encouragement” or “assistance or encouragement in fact” or as the appellants argue, conduct that “has the effect” of aiding or abetting: R. v. Mariani (2007), 2007 ONCA 329, 220 C.C.C. (3d) 74 (Ont. C.A.), at p. 93; R. v. Calhaem, [1985] Q.B. 808 (C.A.), at pp. 814-16; R. v. Bryce, [2004] 2 Cr. App. R. 592 (C.A.), at paras. 72-76; A.G. v. Able, [1984] Q.B. 795, at p. 809; R. v. Clarkson, [1971] 3 All E.R. 344 (Ct. Martial App. Ct.), at pp. 347-48; Peter Gillies, Criminal Law, 4th ed. (North Ryde, Austl.: LBC Information Services, 1997), at pp. 162-63; Fisse, Howard’s Criminal Law, at p. 326; Rose, Parties to an Offence, at p. 25.

[124] While the phrases set out above, and others, I am sure, could be used to explain the necessary connection between the accessorial act and the perpetrator’s commission of the crime, often the plain words “assistance”, “encouragement” or “help”, without more, will convey the same message. This is especially true where it is accepted that the alleged perpetrator was aware of the alleged acts of aiding or abetting when he or she committed the offence. In Larkins v. Police, [1987] 2 N.Z.L.R. 282 (H.C.), Eichelbaum J., after holding that the accessory’s acts must provide “actual assistance” to the perpetrator, said at p. 288:

In the majority of cases the principal offender will be aware of the assistance given by or available from the secondary party. The latter’s presence, for example as a lookout, will be of encouragement to the principal offender and will also be of assistance to him. Even if in the event the lookout is not required to perform any active role his presence alone will help the principal offender to carry out his part secure in the knowledge that he will be warned if anything goes amiss. Help of that kind, when rendered in circumstances where the principal offender is aware of it (and of course given the required state of mind), in my opinion is unquestionably within the description of an act done for the purpose of aiding the principal to commit the offence [citation omitted]. Thus in the generality of cases there will be no need to inquire more deeply into the conceptual basis of the secondary party’s liability which will fall within at least one if not more of the categories set out in paras (a), (b) or (c) of s 66(1).[^8]

[125] I turn now to the trial judge’s instructions. The adequacy of his instructions is properly determined by considering the nature of the evidence heard, the issues raised, and the positions taken by the parties on those issues: R. v. Jacquard, [1997] 1 S.C.R. 314. As indicated above, the Crown relied on the non-perpetrating parent’s failure to do his or her duty to protect Randal. Clearly, if the failure was established, the other parent was aware of that failure.

[126] The trial judge described aiding as “including any form of assistance”. He referred to abetting as meaning “to encourage someone in any manner to commit an offence”. Later, he described abetting as “positive encouragement”. The language used by the trial judge accords with the language customarily used in instructing juries in this province: see The Honourable Mr. Justice David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2002), at pp. 192-93.

[127] The trial judge also told the jury that the Crown’s case for aiding and abetting rested on the contention that the non-perpetrating parent had failed to perform his or her parental duty to protect Randal from further abuse, and that the failure had helped or encouraged the other parent to continue the abuse, which included the fatal assault. He explained how a failure to act could constitute aiding or abetting in the following passages:

I should add that aiding includes an omission to do something where the accused had a legal duty to act in the particular circumstances. As for legal duty, a parent owes his or her child a legal duty to prevent the infliction of harm to the child by the other parent where the infliction of harm is reasonably foreseeable. The failure to take reasonable steps to protect the child may be viewed as a form of aid to the other parent to harm the child.

I should again add that a parent owes his or her child a legal duty to prevent the infliction of harm to the child by the other parents where the infliction of the harm is reasonably foreseeable. The failure to take reasonable steps to protect the child from harm may be viewed as a positive encouragement to the other parent to harm the child.

[128] The trial judge put the Crown’s case in these terms:

That spouse [the non-perpetrator] owed Randal Dooley a legal duty to have protected him from physical harm. That spouse’s failure to protect the helpless and vulnerable child, in light of his or her knowledge that the beatings were escalating and worsening, constituted a positive encouragement to the other spouse to beat Randal for the purpose that the other spouse caused Randal bodily harm that he or she knew was likely to cause his death.

[129] In some cases, the alleged connection between the alleged act of aiding or abetting and the commission of the crime by the perpetrator may be strained or indirect, raising difficult questions concerning the reach of accessorial liability. This is not one of those cases. If, as the Crown urged, the non-perpetrator failed in his or her legal duty by doing nothing to protect Randal from further assaults, while aware of the ongoing assaults, that failure inevitably had the effect of facilitating or encouraging continued assaults by the perpetrator, including the assault that caused Randal’s death. As my colleague, Justice Simmons, put it to counsel in oral argument, the non-perpetrating parent’s failure to intervene was not only causally linked to Randal’s death, but was, in the strictest sense, a “but for” cause of his death. The perpetrator would not have been able to commit the fatal assault “but for” the non-perpetrator’s failure to do his or her legal duty and protect Randal. On this evidence, there was simply no issue as to whether the omission relied on by the Crown “had the effect” of aiding or abetting the perpetrator. Once the jury determined that the non-perpetrator failed in his or her legal duty to protect Randal from further assaults, its deliberations would logically and properly turn to whether the non-perpetrator was guilty of murder or manslaughter.

[130] Given the evidence and the nature of the aiding and abetting allegation, I can see no difference between an instruction to the jury that the conduct said to constitute aiding or abetting must provide “a form of assistance” or “positive encouragement” and an instruction that the conduct must have had the “effect” of aiding or abetting. In my view, a jury would understand from either terminology that the conduct in issue had to have somehow assisted, encouraged or facilitated in the commission of the offence by the perpetrator.

[131] Although counsel at trial objected to various parts of the trial judge’s instruction, they did not object to his description of the conduct component of aiding or abetting. The failure to object is not determinative on appeal, but does support the view that the words used by the trial judge were appropriate to the circumstances of the case. I find no error in the instruction on aiding and abetting.

C. The Instructions on the Use of the Appellants’ Out-of-Court Statements

[132] Both appellants made various statements to the authorities and others after Randal’s death. In their statements, they described their lives with Randal and the events on the last day of his life. Three features of their statements are germane to this ground of appeal. First, each appellant blamed the other for Randal’s abuse and ultimate death. Not surprisingly, their statements differed in many respects. The different versions of events offered in these statements ultimately became the basis for the “cut-throat” defences the appellants advanced. Second, there were significant factual inconsistencies in the various statements made by each appellant. Third, there were factual assertions common to statements made by both appellants that the Crown contended had been proven false by the end of the trial. These common lies provided the basis for the Crown’s claim that the appellants colluded in an attempt to mislead the police after Randal’s death.

[133] The trial judge told the jury during the trial and in his final instructions that out-of-court statements made by one accused were admissible only against that accused and were not admissible “in any way for or against the other accused who did not make the out-of-court utterance”. The trial judge also told the jury that in considering the reliability of the exculpatory portions of statements given by each of the appellants they could consider the inconsistencies found in the various statements made by each of the appellants. Both instructions are correct.

[134] The appellants argued that the trial judge went beyond these two instructions and wrongly told the jury that they could compare the statements made by Marcia and Tony Dooley in considering the case against each of them. Counsel contend that the jury were invited to use the fruits of this improper comparison in two distinct ways. First, the jury was invited to take factual assertions from one appellant’s statement that implicated the other, and to use them to undermine the veracity of the exculpatory version of events given by the other. Second, the jury was told it could use the fact that the appellants’ statements were inconsistent with each other as a basis for rejecting as false the exculpatory portions of the statements of both appellants.

[135] In his instructions to the jury, the trial judge observed on more than one occasion that there were significant inconsistencies between the versions of events given by the two appellants. He referred to three versions of the relevant events in the evidence: the Crown’s version, Marcia’s version and Tony’s version. This observation did no more than track the narrative of the trial. Each appellant blamed the other in advancing a “cut-throat” defence. The Crown claimed both were liable. Arguments about the merits and failings of the various versions of events figured prominently in counsel’s submissions to the jury.

[136] The version of events given by one appellant in his or her out-of-court statements could not be used in assessing the reliability of a different version of those events given in the other appellant’s out-of-court statements. To do so would be to use evidence admissible against only one appellant in deciding the case against the other: see R. v. Perciballi (2001), 54 O.R. (3d) 346 (C.A.), at p. 378, aff’d, 2002 SCC 51, [2002] 2 S.C.R. 761; R. v. C.(B.) (1993), 80 C.C.C. (3d) 467 (Ont. C.A.), at pp. 474-75, leave to appeal to S.C.C. refused, [1993] 3 S.C.R. viii.

[137] I do not read the instruction as suggesting to the jury that one appellant’s out-of-court statements could be used in assessing the reliability of factual assertions made in the statements of the other appellant. To the contrary, the jury was told they could not use one appellant’s statements in any way against the other. The principal passage relied on by the appellants in support of this submission speaks to inconsistencies in the various statements made by each appellant, and not to inconsistencies between the different versions given by the two appellants. Other passages in the instruction do no more than point out the inconsistencies in the two appellants’ versions of events.

[138] The second complaint made on behalf of the appellants has more substance. The trial judge, in his colloquy with counsel during objections to his charge, indicated that in his view the jury could infer from the fact that the appellants gave inconsistent stories that neither story was worthy of belief. Crown counsel, in their factum in this court, support that position. The appellants argue that the trial judge conveyed this erroneous view of the law to the jury.

[139] I confess that I cannot see the logic of the view taken by the trial judge and supported by the Crown. Clearly, it can be safely said that the different versions advanced by the appellants cannot both be true. However, I do not see how the mere fact that there are different versions advanced by the two appellants provides any insight into the credibility of either version. The bald fact of the inconsistencies does not permit any inference as to which version is correct, much less an inference that both versions are incorrect. Not only is the contention logically flawed, an instruction suggesting that inconsistencies between the different accounts given could undermine the credibility of both accounts would amount to an instruction that the out-of-court statement of one appellant could be used against the other appellant. That instruction is contrary to well-established law.

[140] Although I accept the principle underlying this submission made on behalf of the appellants, I can find nothing in the instruction to the jury to support the submission that the jury was invited to use inconsistencies between the versions given by the appellants in their out-of-court statements as a basis for discrediting the exculpatory portions of those statements. As indicated above, the passages relied on by the appellants only speak to inconsistencies in the various statements made by each appellant and to the fact that the versions of events given by the appellants contradicted each other. They do not invite the jury to use the appellants’ out-of-court statements against each other.

[141] For the sake of completeness, I should refer to the Crown’s argument that the out-of-court statements made by each appellant were admissible against the other appellant for a limited purpose. The Crown contended that there was a basis in the evidence for a finding that Marcia and Tony told the same lies about some of the circumstances that were material to the investigation of Randal’s death. The Crown argued that these common falsehoods were indicative of a shared plan to cover up what had happened to Randal. The Crown submitted that the appellants’ joint attempt to cover up the circumstances surrounding Randal’s abuse and death could be used as evidence against both appellants, implicating them in the homicide: see R. v. Trotta (2004), 190 C.C.C. (3d) 199 (Ont. C.A.), at paras. 63-67, rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453.

[142] The trial judge did not refer to the common falsehoods in the appellants’ statements as being capable of providing a stand-alone basis for a finding of collusion and an attempt to mislead the police as to the circumstances of Randal’s death. The trial judge did, however, instruct the jury more generally concerning the evidence of a “cover up” by the appellants after Randal’s death. He referred to various parts of the evidence including things said by the appellants and their attempt to have Randal’s body removed from their home before the police arrived.

[143] The trial judge told the jury that if they determined that the appellants’ jointly attempted to cover up the circumstances surrounding Randal’s death and his prior abuse, the jury could use the evidence of the “cover up” to criminally implicate both appellants in the homicide. The trial judge emphasized, however, that the “cover up” evidence could only assist in proving manslaughter and not murder.

[144] The trial judge could have explained to the jury that they could also use evidence of any lies common to the statements of both appellants in deciding whether there was a joint attempt to “cover up” the circumstances of Randal’s death. To the extent that the trial judge addressed the “cover up” at a more general level and did not make explicit the potential connection between the common falsehoods, standing alone, and a finding of collusion, his instructions did not prejudice the appellants.

C. The cross-examination of Charlotte Williams on statements allegedly made to her by Marcia Dooley

[145] Charlotte Williams is Marcia Dooley’s sister. She and Marcia were very close until they had a falling out shortly after Tyreek’s birth in April 1998. Ms. Williams professed to being unable to recall the reason for their falling out. Before the dispute, Ms. Williams often babysat Tego and Randal. Marcia Dooley would babysit for Ms. Williams’ two daughters. Ms. Williams had no concerns about leaving her children with Marcia Dooley. She indicated that she would not have taken the chance of allowing Marcia to baby-sit her daughters had she known there was any chance they would be abused. The mutual babysitting stopped after Ms. Williams and Marcia had their falling out.

[146] Ms. Williams described Randal as a happy and friendly little boy. He exhibited no behavioural problems and she saw no signs of abuse. Ms. Williams eventually acknowledged seeing a dark, black mark under Randal’s eye at the same time that he had a broken arm. Ms. Williams did not testify to having seen any other injuries during the time she babysat Randal on a regular basis.

[147] Ms. Williams testified that after she and Marcia Dooley had their falling out, they had no contact until early October 1998, shortly after Randal’s death. Ms. Williams visited her sister on a number of occasions in jail and spoke to her about the circumstances surrounding the death. Eventually, under cross-examination by the Crown, Ms. Williams was able to recall some of the details of those conversations.

[148] Prior to calling Ms. Williams as a Crown witness, Crown counsel told the trial judge that she would be bringing an application to have Ms. Williams declared a hostile witness. That order had apparently been made before, when Ms. Williams testified at the preliminary inquiry. The trial judge declined to make any ruling in advance of Ms. Williams’ testimony.

[149] Very shortly after Ms. Williams had commenced her testimony, the trial judge excluded the jury. He held that the Crown would be permitted to cross-examine Ms. Williams at large, as she was “patently hostile to the Crown by both her demeanour and answers.”

[150] I take the trial judge to have made a finding of hostility in the common law sense, and to have ruled that the Crown could cross-examine Ms. Williams as if she was a witness for the defence: see Ed Ratushny, “Basic Problems in Examination and Cross-Examination” (1974) 52 Can. Bar Rev. 209, at pp. 225-26; R. v. Cooper, [1970] 3 C.C.C 136 (Ont. C.A.). Crown counsel proceeded to cross-examine Ms. Williams. In the course of that cross-examination, Crown counsel suggested to Ms. Williams that she had told Audrey Ogle, her cousin, and Chris Dooley, Tony Dooley’s brother, that Marcia Dooley had admitted to her on several occasions that she had abused Randal. Crown counsel put it to Ms. Williams that on different occasions she had told both Ms. Ogle and Chris Dooley that Marcia had admitted breaking Randal’s arm by twisting it behind his back and pressing her foot or knee into his back. Crown counsel also suggested to Ms. Williams that she had told Chris Dooley and Ms. Ogle that Marcia Dooley had told her that she forced Randal to eat his own vomit. Ms. Williams denied making these and other statements to Ms. Ogle or to Chris Dooley. She testified that she had spoken to Chris Dooley “about twice” in her life. Ms. Williams also testified that Ms. Ogle and Marcia Dooley, who were also cousins, intensely disliked each other.

[151] Chris Dooley and Ms. Ogle had testified for the Crown earlier in the trial. They were recalled to testify that Ms. Williams made the statements to them that, during her cross-examination by the Crown, she denied making.[^9] The trial judge cautioned the jury on at least three occasions that this evidence from Ms. Ogle and Mr. Chris Dooley, concerning what Ms. Williams told them about Marcia Dooley’s statements, was not admissible for or against either accused to prove the contents of those statements, but was admissible only to assist them in assessing the credibility of Ms. Williams as a witness.

[152] Ms. Henein, who advances this argument for the appellants, submits that the Crown should not have been allowed to recall Ms. Ogle and Chris Dooley to contradict Ms. Williams’ denials that she had told those two individuals that Marcia Dooley had admitted to specific acts of abuse against Randal. Ms. Henein acknowledges that once the trial judge declared Ms. Williams hostile, the Crown was entitled to cross-examine her on her alleged statements. However, Ms. Henein submits that after Ms. Williams denied making those statements in cross-examination, the collateral fact rule foreclosed the Crown from calling evidence to establish that she had made them.

[153] The testimony of Chris Dooley and Ms. Ogle, contradicting Ms. Williams’ denial that she had related Marcia Dooley’s admissions to them, was not evidence that Marcia Dooley had made those admissions, much less that Marcia Dooley had actually done the acts referred to in those admissions. That evidence was admissible only to undermine Ms. Williams’ credibility by demonstrating that she had made the statements that she denied making in her cross-examination by the Crown. Under any definition of the collateral fact rule, Ms. Williams’ credibility was a collateral matter in this trial: David M. Paciocco & Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008), at pp. 434-35. I do not agree, however, that because Ms. Williams’ credibility was collateral, the Crown was foreclosed from impeaching her credibility by leading evidence of her prior statements that were inconsistent with her testimony.

[154] Ms. Williams was cross-examined at large pursuant to the trial judge’s finding of hostility. Section 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5, provides as follows:

Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.[^10]

[155] Section 11 permits a cross-examiner to call evidence to prove a prior inconsistent statement after giving the witness notice of the statement and an opportunity to acknowledge having made the statement. Evidence of the prior inconsistent statement can be led, however, only where the statement is “relative to the subject-matter of the case”. The alleged statements to Ms. Ogle and Chris Dooley related to admissions, allegedly made by Marcia Dooley to Ms. Williams, of repeated and serious abuse of Randal. The subject matter of the admissions allegedly made to Ms. Williams was clearly relevant to the case against Marcia Dooley. Section 11 speaks to the relevance of the content of the prior statements in the proceedings and not to the evidentiary value flowing from the making of the prior statements: see R. v. Bernier (2007), 2007 QCCA 1061, 229 C.C.C. (3d) 364 (Q.C.A.), at paras. 87-94, leave to appeal to S.C.C. refused, [2008] 1 S.C.R. vi; Bryant, “The Adversary’s Witness: Cross-Examination and Proof of Prior Inconsistent Statements”, at p. 63.

[156] The evidence the Crown sought to elicit from Chris Dooley and Ms. Ogle when it recalled those witnesses fell within the ambit of s. 11 of the Canada Evidence Act, even though the evidence itself was relevant only to Ms. Williams’ credibility. My determination that the evidence fell within the strict ambit of s. 11 does not, however, end the admissibility inquiry. I turn to Ms. Henein’s second argument.

[157] In her second argument, counsel relies on the trial judge’s discretion to prohibit cross-examination, even cross-examination that is technically allowed by s. 11 (or s. 9(1)) of the Canada Evidence Act. Ms. Henein argues that Ms. Williams’ credibility was of minimal significance, if any, in this trial and that proof that she had made a prior inconsistent statement, thereby adversely affecting her credibility, had virtually no value in this trial. She contrasts the minimal potential significance of Ms. Williams’ credibility with the powerful potential for misuse of this evidence. Ms. Henein forcefully argues that despite any limiting instruction, it was almost inevitable that the jury would take this evidence, given by Marcia Dooley’s brother-in-law and cousin, as admissions by Marcia Dooley that she had committed repeated serious assaults against Randal. Ms. Henein stresses that the prejudice could only have been heightened by the graphic description of some of the abuse, particularly the description of the manner in which Marcia broke Randal’s arm.

[158] A trial judge has the discretion to prohibit the Crown from calling evidence to prove a prior inconsistent statement, even where the requirements of s. 11 (or s. 9(1)) have been met. Those sections are permissive and subject to an overriding exclusionary discretion: R. v. Cassibo (1982), 70 C.C.C. (2d) 498 (Ont. C.A.), at p. 522; R. v. Carpenter (No. 2) (1982), 1 C.C.C. (3d) 149 (Ont. C.A.), at p. 155.

[159] The trial judge’s discretion under s. 11(or s. 9(1)) to prohibit the Crown from leading evidence of a prior inconsistent statement is best understood as one example of the overriding evidentiary principle that excludes evidence adduced by the Crown where the prejudicial potential of that evidence exceeds its probative value. This exclusionary principle underlies the law of evidence and has probably achieved a constitutional status: H. Stewart, “Section 7 of the Charter and the Common Law Rules of Evidence” (2008), 40 Sup. Ct. L. Rev. (2d) 415, at pp. 424-25.

[160] Turning first to the probative side of the ledger, I think Ms. Williams was a necessary Crown witness. This is not a case like R. v. Fraser (1990), 55 C.C.C. (3d) 551 (B.C.C.A.), at p. 558, where it could be said that the Crown called the witness solely to impeach that witness and place the contents of their prior statement before the jury. Nor is this a case like R. v. Soobrian (1994), 96 C.C.C. (3d) 208 (Ont. C.A.), where the Crown sought to use the impeachment process to suggest, without any evidentiary support, that the witness and the accused had colluded to misrepresent the truth.

[161] Ms. Williams had relevant evidence to give. She spent a great deal of time with Randal over the months leading up to May 1998. She could describe Randal’s physical and emotional state up to May 1998. She also spoke with Marcia several times after Randal’s death and discussed matters pertinent to his death. The Crown was entitled to call Ms. Williams to elicit relevant evidence from her and to give her the opportunity to testify as to statements that the Crown had a good-faith reason to believe had been made to her by Marcia Dooley. This is so even though the Crown knew she would in all likelihood deny having made certain statements to Ms. Ogle and Chris Dooley.

[162] The proposed evidence had some legitimate impeachment value. Although Ms. Williams had given some evidence that could assist the Crown, she had resisted any attempt to tie Marcia Dooley to any mistreatment of Randal. Ms. Williams went so far as to testify that Marcia Dooley looked after her children on many occasions. This was nothing less than an implicit assertion that Marcia Dooley was a good mother. The Crown had to challenge Ms. Williams’ credibility in this area. It did so through a vigorous cross-examination. When she denied making certain statements that contained admissions of abuse by Marcia, the Crown sought to move to the second step of the impeachment process and prove that those statements had in fact been made. Clearly, those statements had the real potential to undermine Ms. Williams’ testimony that she had no reason to connect Marcia to any abuse of Randal.

[163] Moving to the prejudicial side of the admissibility equation, it is undeniable that if the jury took the contents of the statements as evidence of admissions actually made by Marcia, the admissibility of that evidence would have prejudiced Marcia Dooley. The trial judge was alive to that risk. He repeatedly and clearly told the jury that the evidence of the statements allegedly made by Ms. Williams to Ms. Ogle and Chris Dooley was admissible only in respect of Ms. Williams’ credibility and was not evidence against Marcia Dooley. He first provided this instruction immediately after Ms. Ogle testified concerning the statements made to her, again after Christopher Dooley testified concerning the statements made to him and, yet again, a third time in his closing instructions. The last words the jury heard on this matter from the trial judge were that “[t]he hearsay utterances [statements made by Williams to Ms. Ogle and Chris Dooley] were in no way admissible for or against the accused Marcia Dooley.”

[164] It would be naïve to think that a trial judge’s instructions can always eliminate the potential prejudice flowing from the misuse of evidence. It would be cynical and entirely contrary to the long accepted notion of limited admissibility to assume that a judge’s instructions serve no prophylactic purpose. In R. v. Mariani, at p. 91, the court accepted that a “strong and clear” mid-trial instruction to the jury would go a long way to alleviate any potential prejudice from the misuse of the evidence of a prior inconsistent statement. This trial judge gave that kind of instruction twice and also provided a clear instruction in his final directions.

[165] Crown counsel also argues that there was a great deal of admissible evidence showing that Marcia Dooley repeatedly abused Randal over a prolonged period of time. Counsel submits that the contents of the alleged statements made to Ms. Williams were simply more of the same, insofar as the evidence of Marcia’s abuse of Randal was concerned. There is some merit to this argument, although I hesitate to accept the contention that Ms. Dooley is somehow less prejudiced by the jury’s potential misuse of the evidence because there was other evidence that could properly have been used to arrive at the same result. Clearly, if the jury misused this evidence and took it as admissions of serious abuse by Marcia Dooley, that misused evidence could well have factored into the jury’s deliberations.

[166] The probative value/prejudicial effect assessment is not a mathematical one. Different trial judges will come to different values and different ultimate assessments. Considerable deference is owed to those assessments absent an error in principle or a misapprehension of the evidence. I see neither here. I would yield to the trial judge’s assessments that the evidence could be received and that the potential prejudice could be effectively controlled by repeated and strong limiting instructions.

D. The limiting instruction on the use to be made of the evidence of Randal’s prior abuse

[167] Evidence detailing the ongoing and serious abuse of Randal unavoidably permeated the evidence at trial. The nature and extent of Randal’s abuse, each appellant’s role in inflicting that abuse, and their knowledge of the other’s abuse were relevant to almost every significant issue at trial. For example, it was important to the Crown’s case against both the perpetrator of the alleged fatal assault and the alleged aider and abetter to show that Randal was the victim of a pattern of escalating abuse at the time of his death. That evidence was relevant to both the perpetrator’s and aider or abetter’s knowledge of the likelihood of death should further assaults be inflicted on Randal. Proof of that knowledge was essential to the murder charge against both appellants.

[168] The centrality of the evidence of Randal’s abuse to the case, and the disturbing nature of that evidence, made it essential that the trial judge both tell the jury what use they could make of that evidence and caution them against certain prohibited uses of it. This ground of appeal centres around the adequacy of the latter part of that instruction, known in jury-instruction parlance as the limiting instruction.

[169] Counsel submits that the trial judge’s instructions were confusing in that they began by cautioning the jury against propensity reasoning based on the evidence of abuse, but then moved to an instruction inviting propensity reasoning from that evidence. The trial judge told the jury:

You must not infer from a prior crime that a person has a propensity to commit the same or subsequent crimes. However, where the person commits a pattern of similar conduct, particularly against the same victim, it is open to you to infer that that person has subsequently repeated the similar conduct and has committed that or a similar conduct against the same victim, particularly where the motivation is the same, for example, to discipline the child, and particularly where the person has a strong dislike of the child.

[170] I see no error in this instruction. The trial judge began with a caution against using evidence of a general propensity to commit criminal acts to infer the commission of a particular criminal act. He went on, however, to tell the jury that it could infer that an accused acted in a certain way toward Randal based on evidence that the accused had acted in the same or similar way toward Randal in the same circumstances on prior occasions. The instruction captures the difference, highlighted in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 89-91, between prohibited general propensity reasoning, and situation-specific propensity reasoning, which is justified where the propensity operates in a closely defined and circumscribed context, for example, physical abuse within the family unit of the same child during the same period of time.

[171] Counsel for the appellants also submit that the trial judge failed to caution the jury against improperly convicting the appellants based on their prior abuse and neglect of Randal, rather than on their involvement in the specific assault that caused his death. Counsel submit that, in the absence of a strong limiting instruction, the jury may have moved directly from the powerful evidence indicting the appellants for the prior abuse of Randal to its verdict without coming to grips with the difficult problems surrounding responsibility for the fatal assault. Counsel argue that this risk of moral prejudice was particularly high given the serious nature of the prior abuse, the overwhelming evidence that both appellants engaged in it and were aware of it, the close connection between the ongoing abuse and Randal’s death, and the absence of evidence speaking directly to the fatal injury.

[172] The concern described by counsel was a very real one at this trial. There were different ways to address that concern. Counsel for both appellants and the Crown at trial confronted the concern directly, and urged the jury not to arrive at a verdict based on the appellants’ prior conduct toward Randal. The trial judge referred to these submissions in the course of summarizing the positions of the accused at trial.

[173] The trial judge did not directly address the risk that the jury would convict based on the outrage engendered by the prior abuse. He did, however, repeatedly tell the jury that the appellants’ liability for murder either as a perpetrator or an aider and abetter depended on their involvement in and connection to the fatal assault. For example, in explaining the burden of proof as applied to the perpetrator, the trial judge said:

The Crown must prove beyond a reasonable doubt identity and that is an issue in this case – who unlawfully assaulted Randal Dooley, who, if you make that finding of fact that it was a shaking and perhaps combined with a slap to the head or something of the sort, identity of the person who did that is clearly an issue. They must prove that beyond a reasonable doubt ….

[174] Further, after discussing the evidence of the prior abuse as it related to both appellants, the trial judge reminded them as follows:

[Y]ou must keep in mind the fact that a particular accused committed the majority of the prior assaults does not necessarily prove that the accused committed the final assault that caused Randal Dooley’s death. In the end, you must be satisfied beyond a reasonable doubt as to which accused committed the final assault that caused Randal Dooley’s death in order to convict that accused as a principal offender of second degree murder ….

[175] The objection raised on appeal is to the trial judge’s failure to specifically instruct the jury not to convict based solely on the prior abuse. It was not made at trial. While an admonition by the trial judge along the lines of those delivered by all counsel at trial would have been entirely appropriate, I cannot say that its absence results in reversible non-direction.

[176] The trial judge’s explanation connecting liability for murder to culpability in the fatal assault, repeated at several different phases of the instructions, made it clear to the jury that in arriving at its verdict it must come to grips with the evidence pertaining to the final assault and the liability of the appellants for that final assault. The failure of the trial judge to say everything that could properly be said in a jury instruction is not reversible error. The appellants have not convinced me that, absent the instruction they seek, the jury could have ignored the trial judge’s instructions tying culpability to the final assault and convicted based on responsibility for the earlier assaults.

V

MARCIA DOOLEY’S SENTENCE APPEAL

[177] Both appellants received the mandatory sentence of life imprisonment. The trial judge ordered that Tony Dooley should serve 13 years before being eligible for parole, and that Marcia Dooley should serve 18 years.[^11] The trial judge, based on his findings that Marcia had struck the fatal blow to Randal and had inflicted the “vast majority” of the prior abuse, distinguished between the two appellants for the purposes of sentencing.

[178] Counsel accepts the trial judge’s factual findings, as I think she must. She also acknowledges that those findings warranted the imposition of a longer period of parole ineligibility for Marcia Dooley. Counsel submits, however, that the period of parole ineligibility imposed on Marcia, five years greater than that imposed on Tony Dooley, went beyond the appropriate range, even having regard to the deference owed to the trial judge. When pressed in oral argument, she suggested a 15 or 16-year period of parole ineligibility would be appropriate.

[179] The sentence appeal has come down to a very narrow question. It is hard, absent some error in principle or misapprehension of material evidence, to justify appellate intervention to adjust a mandatory period of parole ineligibility downward by two or three years. I can see no error in principle or misapprehension of the evidence. Nor would I label a five-year differential between the respective periods of parole ineligibility of the appellants manifestly unreasonable in the circumstances as found by the trial judge. I would not interfere with the sentence imposed on Marcia Dooley.

VI

CONCLUSION

[180] I would dismiss the appeals from conviction and dismiss Marcia Dooley’s sentence appeal.

RELEASED: “DEC 22 2009” “DD”

“Doherty J.A.”

“I agree Janet Simmons J.A.”

“I agree R.G. Juriansz J.A.”

[^1]: The seven years between the appellants’ conviction and sentence and the hearing of this appeal is inordinately long. The delay is explained by three things. First, problems arose in obtaining the transcript from the court reporter. Despite court orders that threatened various sanctions, a working copy of the transcript was not produced until well into 2005. Second, some time after the trial was completed, the competence of Dr. Smith, the pathologist who performed the autopsy and testified for the Crown became a matter of concern. In 2004, the Attorney General ordered a review of Dr. Smith’s cases, including this one. All parties agreed that the perfection of this appeal should await the outcome of that review. An inquiry headed by Goudge J.A. flowed from that review: Ontario, Inquiry into Pediatric Forensic Pathology in Ontario, Report (Toronto: Queen’s Printer, 2008) [The Goudge Report]. Lastly, preparation of proposed fresh evidence relating to the cause of death and cross-examination on that evidence took some time. [^2]: Although the work and testimony of Dr. Smith in several criminal matters was criticized by Goudge J.A. in his report (supra, note 1), I do not understand the appellants to challenge Dr. Smith’s competence as it relates to the autopsy of Randal’s body. They do, however, in the fresh evidence application challenge some of the opinions advanced by Dr. Smith. The Crown and the appellants agree that Dr. Smith’s autopsy of Randal’s body was reviewed as part of the review ordered by the Attorney General in 2004. The initial reviewer, Dr. John Butt, did not take issue with Dr. Smith’s opinions or indicate that the post-mortem was performed incompetently. [^3]: Dr. Humphreys also testified that there was damage to the brain stem that contributed to Randal’s death. Based on the medical assessments done post-conviction, it is now agreed by both parties that there was no brain stem damage. I do not understand the appellants to contend that this error on its own is of any significance. [^4]: The above-quoted words from Palmer appear time and time again in the jurisprudence. For recent examples, see R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 3, and R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 154-55, Charron J., concurring. [^5]: The distinction drawn in Taillefer based on whether or not the proffered evidence should have been disclosed at trial was applied in Gallos v. Toronto (City), [2008] O.J. No. 4782, at para. 50, per Simmons J.A. in chambers, leave to appeal to S.C.C. refused, [2009] 1 S.C.R. viii. [^6]: R. v. Dalton (R.C.) (1998), 163 Nfld. & P.E.I.R. 254 (Nfld. C.A.) leave to appeal to S.C.C. refused, [1998] 3 S.C.R. vi, can be read as holding that evidence should be admissible if it clears the level of cogency required by Palmer, even where that evidence could have been available at trial had due diligence been exercised. Dalton precedes this court’s decisions in Maciel and Truscott. In any event, Dalton, at paras. 140-45, attributed a degree of cogency to the proffered evidence that may well have cleared the heightened degree of cogency required by this court. Furthermore, there was a serious question in Dalton whether the failure to lead the evidence at trial was the result of any lack of due diligence: see paras. 135-39. [^7]: Counsel accepted that one could be liable as an aider or abetter based on an omission. Counsel argued, however, that presence of the non-perpetrator was a prerequisite to liability as an aider or abetter where that liability was based on an omission. The presence of the non-perpetrator when the offence is committed will have important evidentiary significance, particularly with respect to the mens rea component of accessorial liability. I see no doctrinal reason and nothing in the language of s. 21(1) that would make presence a prerequisite to that liability. I do not read R. v. Poppen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.), as announcing a principle of general application. I understand Martin J.A. to hold, at pp. 236-39, that in the circumstances of that case the Crown could not prove, given that the husband was never present during any of the assaults, that the husband’s failure to intervene and protect the child from his wife made him an accessory to her homicide. [^8]: Section 66 of the New Zealand Crimes Act 1961, (N.Z.) 1961/43, is comparable to s. 21(1) of the Criminal Code. [^9]: Ms. Ogle went beyond testifying to statements that had been put to Ms. Williams in her cross-examination. One of those alleged statements was potentially very damaging. The trial judge refused a mistrial, but immediately told the jury that the statement by Ms. Ogle constituted “inadmissible conjecture or speculation”. I do not understand counsel to challenge the trial judge’s refusal of a mistrial. [^10]: It might be argued that because Ms. Williams was called by the Crown, the Crown’s right to cross-examine her on a prior inconsistent statement not reduced to writing must be found in s. 9(1) of the Canada Evidence Act: see Alan W. Bryant, “The Adversary’s Witness: Cross-Examination and Proof of Prior Inconsistent Statements” (1984) 62 Can. Bar Rev. 43, at p. 55. In my view, after the trial judge made a declaration that the witness was hostile, Ms. Williams’ testimony was subject to the rules governing cross-examination. Section 11 is one of those rules. In any event, I see no substantive difference in the operation of the two sections as they relate to calling evidence to prove a prior inconsistent statement. While the language of the two sections is not identical, both sections are subject to an overriding judicial discretion that probably renders any differences in the language irrelevant to their application in practice. [^11]: Four of the twelve jurors made recommendations in response to the trial judge’s statutorily mandated request for those recommendations. One recommended 25 years, one recommended 20, one recommended 15 and the other recommended 11. None of the four drew any distinction between the two appellants.