CITATION: R. v. Peng, 2009 ONCA 921
DATE: 20091224
DOCKET: C48622
COURT OF APPEAL FOR ONTARIO
Moldaver, Feldman and Simmons JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
And
Xuan Peng
Appellant
John R. Mann III, for the appellant
Karen Shai and Elise Nakelsky for the respondent
Heard: December 11, 2009
On appeal from conviction for second degree murder by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with a jury, dated March 1, 2008.
Moldaver J.A.:
[1] Following her trial before Benotto J. and a jury, the appellant was convicted of second degree murder in connection with the drowning death of her daughter, Scarlett. The appellant appeals from conviction and raises a number of issues, only two of which I propose to address.
[2] The first issue relates to the admissibility of certain evidence given by Dr. Taylor, the pathologist who performed the autopsy on Scarlett. In particular, the appellant submits that the trial judge erred in permitting Dr. Taylor to give evidence about the nature and timing of certain bruises located at the back of Scarlett’s neck and the means by which they may have been caused.
[3] The second issue relates to the trial judge’s instructions on the included offence of manslaughter. Although counsel for the appellant framed the issue differently in his notice of appeal and factum, the debate before us centred on the adequacy of the trial judge’s instructions and whether the jury was given the information it needed to properly assesses whether, at the time of the drowning, the appellant possessed one or other of the requisite intents for murder.
[4] For reasons that follow, I would not give effect to the first ground of appeal. I am however, of the view, that the second ground has merit and that a new trial must be ordered. Because of that, I propose to limit my review of the facts to a minimum.
Overview of Salient Facts
[5] On July 12, 2004, the appellant and her husband discovered the lifeless body of their four-and-a half year old daughter, Scarlett, submerged in the bathtub of their home. She was naked and unconscious and there was vomit on her face. Efforts by family members and medical personnel to resuscitate her proved futile. Dr. Taylor, the paediatric pathologist who performed the autopsy, attributed the cause of death to drowning – a finding that no one disputes. The focus at trial centred on the circumstances surrounding the drowning and the manner by which it had come about. According to the Crown, Scarlett was drowned by the appellant; according to the appellant, Scarlett drowned as a result of a tragic accident in which she played no part.
[6] Evidence presented at trial showed that Scarlett’s short life had been marred by medical and family issues. Scarlett was the only child of the appellant and her husband David. The appellant suffered from health issues and found it difficult to care for Scarlett. Eventually, at age 20 months, Scarlett was sent to China where she spent the next two and a half years living with her maternal grandmother.
[7] While in China, problems were noted with Scarlett’s speech development and communication skills. At age 4, she could not speak and did not play with other children. She also exhibited temper tantrums and refused to follow instructions. Doctors in China attributed her developmental delay to a condition known as Hydrocephalus – in lay terms, a “water bubble” on her brain.
[8] Several months after her fourth birthday, Scarlett and her grandmother returned to Canada, where it was felt that Scarlett would receive better medical attention. Her parents were hopeful that a corrective solution could be found to address her developmental problems. Unfortunately, that was not to be the case. After several months of testing, Scarlett was found to be autistic. On the day of Scarlett’s death, the appellant and her husband were told that corrective surgery was out of the question and that Scarlett would never function normally. At the same time, however, they were informed that Scarlett was only mildly autistic and there was a potential for major improvement. Various services and educational opportunities were available and steps were taken that day to set them in motion.
[9] After returning home from the doctor’s office at about 4:00 p.m., the appellant remained alone with Scarlett for about three-and-a-half hours while her husband and mother attended to other matters. This was the first time that the appellant had been alone with Scarlett since Scarlett’s return from China a few months earlier. In several statements made to the police, the appellant explained that Scarlett had been very naughty all afternoon. She had been running around and getting into mischief and the appellant described her behaviour as “horrible” – she could “hardly take more”. The afternoon was “very frustrating” and she had made numerous attempts to reach her husband and have him come home.
[10] According to the appellant, at around 6:00 p.m., she managed to put Scarlett down for a nap and Scarlett fell asleep within half-an-hour. The appellant then went downstairs and watched television until around 7:30 p.m., when her husband and mother returned home. At that time, she accompanied her husband upstairs and discovered that Scarlett was not in bed. The appellant and her husband then looked in the bathroom and saw Scarlett’s lifeless body in the bathtub, submerged under the water. They immediately called 911 and the appellant’s mother and her husband tried to resuscitate Scarlett before the police and ambulance personnel arrived.
[11] Earlier that afternoon, the appellant had placed some kitchen utensils and the shower curtain in the bathtub to let them soak in detergent and water. Photographs of the scene taken by the police showed those items in a small bassinette located on the floor beside the bathtub. The shower curtain had been folded up and it too was in the bassinette.
[12] Forensic testing revealed that the walls surrounding the bathtub, as well as the top and exterior of the tub, had been wiped or scrubbed clean. There were no marks within the total bathtub area that would indicate it had been touched at all. In contrast, the other half of the bathroom showed many areas that had been touched and the vanity and toilet were dusty and covered in cobwebs.
[13] On autopsy, Scarlett was found to be otherwise normal and healthy, with no signs of prior abuse. The entire front of her torso, including her chest, arms, legs and face showed no signs of bruising or any other signs of trauma. On her backside, no signs of trauma were noticed until the second day of the autopsy, when Dr. Taylor, for the first time, observed a tiny bruise on her lower back. With the guidance and assistance of two highly qualified forensic pathologists, Dr. Taylor layered back the skin on Scarlett’s backside and noticed several more tiny bruises, two of which were symmetrical and located at the back of Scarlett’s neck. As for the appellant, no scratches or injuries of any kind were found on her hands, arms, or face following the event.
The Appellant’s Position at Trial
[14] At trial, the appellant took the position that Scarlett’s death resulted from a tragic accident in which she played no part. Scarlett was a healthy, well-cared for, well-nourished child. Despite Scarlett’s problematic behaviour, the appellant loved her and she had never abused the child. Programs were available to assist with Scarlett’s mild autism and major improvements could be expected. The physical evidence belied the notion that the appellant had violently submerged Scarlett in the bathtub. Scarlett had no defensive injuries on her body and the appellant was injury-free. Dr. Taylor’s evidence as to the nature, timing and potential causes of the bruising found on Scarlett’s neck was speculative and, in any event, it did not provide conclusive or indeed any proof that Scarlett had been forcibly drowned.
The Crown’s Position at Trial
[15] The Crown at trial maintained that Scarlett had been forcibly drowned and that the appellant was responsible. According to the Crown, the appellant and Scarlett had never bonded. Scarlett was a difficult child and the appellant could not cope with her. Faced with the prospect that Scarlett would never be normal and brought to the brink by Scarlett’s horrible behaviour on the afternoon in question, the appellant took the opportunity, when Scarlett was in the bathtub, to forcibly drown her. The finding of the kitchen utensils and the folded shower curtain in the bassinette beside the tub belied the notion that Scarlett had wondered into the bathroom, removed those items, neatly folded the shower curtain, entered the tub and then accidentally drowned. The scene, instead, provided strong proof that the appellant, who was alone with Scarlett at the time, removed those items before Scarlett entered the tub and was present when she drowned. While acknowledging that the medical evidence was not conclusive, the Crown relied on Dr. Taylor’s opinion that the two symmetrical bruises at the back of Scarlett’s neck likely occurred within four hours of her death and that they may have been caused by the shearing of tiny blood vessels “if Scarlett were on her back and, being restrained ... and attempting to raise her head against the restraint”. The Crown also pointed to the “clean-up” of the bathtub area, suggesting that the appellant had been responsible and that this post-offence conduct constituted “a devastatingly damning piece of evidence”.
[16] In sum, the Crown maintained that in its totality, the circumstantial evidence provided conclusive proof that the appellant had murdered Scarlett by forcibly drowning her in the bathtub.
[17] Against that backdrop, I turn to the two central issues on appeal.
Issue One: Did the trial judge err in permitting Dr. Taylor to testify about the nature, timing and potential causes of the two bruises located at the back of Scarlett’s neck?
[18] The appellant submits that Dr. Taylor should not have been permitted to testify about the nature, timing or potential causes of the two bruises located at the back of Scarlett’s neck because Dr. Taylor did not have the forensic training required to give those opinions. In short, he was a paediatric pathologist, not a forensic pathologist, and, as he readily conceded, his understanding of bruising was, at best, moderate and others had far more experience than he did.
[19] As for the substance of his evidence, he acknowledged that the theory which the Crown wished to advance – that the two symmetrical bruises at the back of Scarlett’s neck were caused by straining her head and neck in response to restraint – was one of many possibilities and in that sense, of little value to the jury. Permitting Dr. Taylor to give evidence supportive of the Crown’s theory ran the risk that the jury would accept it and use it as proof that the appellant had forcibly held Scarlett down, when there was no other evidence to substantiate that conclusion.
[20] I would not give effect to the appellant’s submissions. The trial judge gave thoughtful and cogent reasons for permitting Dr. Taylor to give the evidence he did. She held, properly in my view, that his evidence regarding the cause of bruising was not “speculative but the result of 16 years of high-level experience as a paediatric pathologist” in which he had dealt extensively with the sudden death of children. The trial judge further observed, correctly in my view, that “the fact that others may be more qualified than he is does not disqualify him as an expert in this area. Any deficiencies go to weight, not to threshold admissibility”.
[21] As for the reliability of Dr. Taylor’s evidence, the trial judge noted that in arriving at his opinions about the bruises located on Scarlett’s body, and particularly the two at the base of her neck, Dr. Taylor “called in two forensic pathologists and consulted with them”.
[22] As for the risk the jury would give Dr. Taylor’s evidence undue significance, the trial judge observed that Dr. Taylor was “quick to acknowledge the limitations of his expertise” and “very balanced in listing the possible causes of bruising”. Moreover, his testimony was “but one potential piece of evidence for the jury to consider”.
[23] In the circumstances, I can detect no errors in the trial judge’s analysis or conclusion. Dr. Taylor’s evidence was clearly necessary. It cannot be said – nor does the appellant suggest otherwise – that the jury would have known, without expert assistance, that bruising can be caused when someone “strains against restraint” – and it was essential that the jury have that evidence to prevent any suggestion by the defence that Scarlett’s body exhibited no injuries consistent with the Crown’s theory. Put differently, the Crown was entitled to present the jury with evidence capable of showing that its theory was at least plausible, having regard to the physical evidence.
[24] That said, I would simply add, for purposes of the new trial, that a short, sharp warning about the limitations of Dr. Taylor’s evidence would not have been out of order. In the circumstances, I believe that a brief limiting instruction, along the following lines, would have been useful:
“In assessing the significance and weight to be afforded to Dr. Taylor’s evidence, you must bear in mind the limitations on his evidence. He does not know how Scarlett sustained the bruises on her neck and was not expressing an opinion about that issue. As he explained, it is not possible to determine, based on a physical examination, exactly when and how the bruises were caused. It is up to you to consider his evidence in the context of the whole of the evidence given at trial and to determine the weight and significance to be afforded to it. His evidence may assist you, it may not. In the end, that will be a matter for you to determine.”
[25] All in all, I am satisfied that Dr. Taylor’s evidence was properly received. Accordingly, I would not give effect to the first ground of appeal.
Issue Two: Was the jury adequately instructed on the included offence of manslaughter?
[26] I preface my remarks on this issue by noting that the trial judge’s instructions on manslaughter were not challenged by defence counsel, nor did Crown counsel at trial [not Ms. Shai or Ms. Nakelsky] raise any concerns about them. Beyond that, defence counsel provided no assistance to the trial judge as to the defence position on manslaughter and how the jury should be instructed in relation to it. On my review of the record, including the oral and written submissions provided by defence counsel to the trial judge in anticipation of the charge, defence counsel simply took the view that in light of the position taken by the Crown in its closing address, murder was “no longer a possibility” and it “should not be left to the jury. It should be a manslaughter charge at most”.
[27] That submission was not only unhelpful, it was wrong. In his closing address, Crown counsel put the Crown’s position to the jury as follows:
The killing of her daughter by Ms. Peng is something that happened on the sudden, in a moment of anger and frustration, where she found herself in a situation that she was unable to cope with, and to relieve herself of a burden, and the opportunity presented itself to her while in the bathroom, where there was a tub full of water, and she snapped and drowned her daughter. [Emphasis added.]
Later, in the same address, Crown counsel returned to that theme, urging the jury to find that “in a moment of frustration and rage, [the appellant] held her daughter under the water till she lost consciousness and drowned ...”.
[28] In response to the appellant’s contention that by virtue of its closing address, the Crown could not seek a conviction for murder, Crown counsel explained to the trial judge that the remarks in question were merely designed to inform the jury that premeditated murder was not an issue so far as the Crown was concerned; they were never meant to take murder off the table. By the same token, the Crown did not suggest that manslaughter should be removed from the jury’s consideration. On the contrary, the Crown obviously recognized that manslaughter was a viable verdict on the evidence.
[29] In conjunction with its contention that the appellant’s conduct amounted to a momentary loss of control, the Crown maintained that the act of holding Scarlett down until she lost consciousness “wouldn’t have taken very long”. The Crown’s submission in this regard accorded with Dr. Taylor’s evidence that when someone is submerged under water, loss of consciousness will generally occur within a minute to three minutes but it can take as little as 30 seconds.
[30] The Crown’s submission as to the length of time it would take for Scarlett to lose consciousness was by no means gratuitous. As the following excerpt from the Crown’s closing address reveals, it was designed to explain away the absence of significant bruising or other injuries to the front of Scarlett’s torso and also the lack of injuries to the appellant that might have been expected had Scarlett been thrashing around in the tub in a desperate effort to preserve herself from death:
In terms of the struggle, Dr. Taylor testified regarding the mechanism of drowning, and my submission to you, listening to his testimony, bearing in mind this was a four-year-old child, it wouldn’t have taken very long for the child to succumb and lose consciousness and essentially stop struggling. I think there’s a suggestion out there that you should expect to see bruising on other parts of her body, perhaps on the extremities if she was thrashing around; expect to see defensive or wounds on Ms. Peng. [Emphasis added.]
In my submission, those possible scenarios are speculative.
[31] That is the context against which the trial judge’s instructions on the included offence of manslaughter must be assessed. I turn to them now.
[32] The trial judge began her instructions by informing the jury that murder required proof of a particular state of mind and that to convict the appellant of murder, the Crown had to prove beyond a reasonable doubt that she either meant to kill Scarlett or intended to cause bodily harm to Scarlett which she knew was likely to cause death and was reckless whether death ensued or not.
[33] The trial judge next told the jury that in determining the appellant’s state of mind at the requisite time, the jury could consider “what she did or did not do; how she did or did not do it; and what she said or did not say”. The jury was further instructed to look at the appellant’s “words and conduct before, at the time, and after the unlawful act that caused Scarlett’s death”. As well, the jury was told to look at all of the circumstances that might “shed light on [the appellant’s] state of mind at the time” with a view to deciding “what she meant or didn’t mean to do”. In considering the evidence, the jury was to use its “good common sense”.
[34] The trial judge next instructed the jury on the common sense inference that “when a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences”. The trial judge cautioned the jury, however, that their task was to determine the person’s “actual state of mind” and that the common sense inference was permissive, not mandatory.
[35] To this point, the trial judge’s instructions were flawless.
[36] The trial judge then turned to the evidence upon which the Crown was relying to prove murder:
The Crown alleges that Ms. Peng did have the state of mind for murder. In particular:
She held her under water till she lost consciousness. According to Dr. Taylor, it takes a few minutes to lose consciousness.
She left Scarlett in that state and went downstairs to await the return of her husband and mother and watch television.
She made no attempts to remove Scarlett from the water or to resuscitate her prior to their arrival.
After Scarlett was discovered by her father, Ms. Peng was the only one who made no effort to revive her. [Emphasis added.]
[37] Pausing here, I note that the trial judge’s recitation of Dr. Taylor’s evidence regarding the time it takes to lose consciousness was not entirely accurate. With respect, it was incomplete and did not accord with the Crown’s actual submission which, as I have pointed out, was “it wouldn’t have taken very long for the child to succumb and lose consciousness and essentially stop struggling”.
[38] I have already alluded to Dr. Taylor’s evidence that loss of consciousness can occur in as little as 30 seconds and I have explained why it was important for the Crown to keep that time frame short. I do not propose to repeat my comments. Suffice it to say that if the jury were to accept that it took “a few minutes” for Scarlett to lose consciousness, that would not bode well for the appellant on the issue of intent. Specifically, it would cut away from the notion that she acted on the sudden, in the heat of the moment, quickly and impulsively, without giving much or any forethought to the consequences of her actions. That, of course, was the basis upon which the jury could find the appellant guilty of manslaughter – and it found credence both in the evidence and in the Crown’s closing address.
[39] Manifestly, the appellant had difficulty coping with Scarlett. But there was no ``suggestion that Scarlett had ever been abused in the past. And the day in question was unique, in the sense that it was the first day that the appellant found herself alone with Scarlett having to care for her. In the circumstances, a momentary outburst was by no means out of the question.
[40] Equally, while I accept that the appellant would not have been happy to learn that Scarlett was suffering from autism and that she would never function normally, the news regarding Scarlett’s condition was not entirely bleak. According to the doctor, her autism was mild and there was potential for improvement; as well, there were many supportive programs available to Scarlett.
[41] In sum, having regard to the evidence in its entirety, including the medical evidence, I believe that manslaughter was a viable verdict and the appellant was entitled to have the issue of her intent and the evidence surrounding it, put fully and fairly to the jury. Unfortunately, it was not. After completing her review of the evidence in support of the Crown’s position, set out above, the trial judge said this to the jury:
Remember, the Defence says that this didn’t happen at all, so she could not have had the intent to do it.
Nothing more was said about the defence position.
[42] In fairness, as I mentioned at the outset of this section, defence counsel did not object and the Crown stood by silent.
[43] In many circumstances, defence counsel’s failure to object will prove fatal. In oral argument before us, defence counsel conceded his mistake and took full responsibility for it. We appreciate his candour. In the end, our primary concern is to ensure, so far as possible, that justice is done.
[44] In this case, the error was serious. It effectively precluded the jury from considering the included offence of manslaughter from the appellant’s perspective. That being so, I am respectfully of the view that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code cannot be applied to sustain the conviction.
[45] Before leaving this matter, I wish to comment briefly on one further concern that may or may not arise at the new trial.
[46] As mentioned, the Crown in its closing address made much of the fact that the outer surfaces of the bathtub and the areas surrounding it had been wiped clean. According to the Crown, this constituted “a devastatingly damning piece of evidence” against the appellant.
[47] In her charge, the trial judge made no mention of this “after-the-fact” conduct and the jury received no instructions on it.
[48] For purposes of the new trial, if the Crown chooses to make the “clean-up” evidence part of its case, the jury should be told that its use, if any, must be limited to the question whether the appellant caused Scarlett’s death and not whether the appellant formed the requisite intent for murder.
Conclusion
[49] For the reasons given, I am of the view that the jury was not properly instructed on the included offence of manslaughter. Accordingly, I would allow the appeal, quash the conviction and order a new trial.
Signed: “M. J. Moldaver J.A.”
“I agree K. Feldman J.A.”
“I agree Janet Simmons J.A.”
Released: “MJM” December 24, 2009