CITATION: R. v. Luu, 2010 ONCA 807
DATE: 20101130
DOCKET: C50647
COURT OF APPEAL FOR ONTARIO
Rosenberg, Simmons and Blair JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Thanh Phong Luu
Appellant
Russell Silverstein and Ingrid Grant, for the appellant
Jamie Klukach, for the respondent
Heard: October 25, 2010
On appeal from the conviction entered by Justice Peter Howden of the Superior Court of Justice, sitting with a jury, dated June 27, 2008 and the sentence imposed on August 29, 2008.
Rosenberg J.A.:
[1] The appellant appeals against his conviction by a court composed of Howden J. and a jury on a charge of manslaughter. The Crown alleged that the appellant unlawfully shot and killed his friend while the two of them were examining a handgun. The Crown’s case turned almost entirely on expert evidence as to the manner in which the firearm was discharged. The principal submission is that the verdict, necessarily based on this expert evidence, is unreasonable. While the appellant raises other grounds of appeal, I agree that the verdict is unreasonable. Accordingly, I would allow the appeal, set aside the conviction and enter an acquittal.
THE FACTS
The Shooting
[2] The appellant and the deceased Tuan Dang were friends. There was no evidence of any animosity between them. On June 5, 2006, the appellant and his girlfriend were visiting Mr. Dang and Yvonne Chung, the mother of Mr. Dang’s child. At some point, the appellant and the deceased went upstairs to one of the bedrooms. A short time later, the women heard a loud noise. Ms. Chung ran upstairs to find the appellant helping the deceased out of the bedroom. When the deceased fell down, the appellant picked him up and carried him downstairs to his car. The appellant’s girlfriend drove the appellant, the deceased and Ms. Chung to the hospital.
[3] Ms. Chung testified that on the way to the hospital the appellant said that they were looking at the gun and it accidentally went off. The appellant made a circular motion with his finger, suggesting that someone had been twirling the gun around his finger like a cowboy. The appellant made these comments in Vietnamese. Ms. Chung did not speak Vietnamese fluently and she had some difficulty understanding the appellant.
[4] At the hospital, the staff attempted to save the deceased. In the course of those measures the deceased’s shirt was pulled and torn open. The shirt was then placed in a plastic bag and thrown in the corner of the treatment room. Sometime later the police retrieved the shirt, which at that point had been placed in a paper bag. The handling of the shirt became important for understanding the expert evidence.
The Police Investigation
[5] The police did not come to the deceased’s home until two days after the shooting. In the bedroom, they found the handgun on top of a dresser near the door. They also found a vest of body armour on the bed. It seems to have been common ground that both the gun and the body armour belonged to the deceased. There were no fingerprints recovered from the gun. There is no evidence that the appellant returned to the deceased’s home before the police attended. A number of people, in addition to the deceased, lived at the residence.
The Expert Evidence
[6] Dr. Toby Rose performed the autopsy on the deceased. The deceased died from a gunshot wound to the chest. Dr. Rose initially concluded that the bullet wound was a “contact wound” meaning that the muzzle of the gun had been against the deceased’s body when it was discharged. She based her opinion on a ring of black soot surrounding the wound and pink discolouration of the skin which she attributed as being caused by carbon monoxide emitted by the gun.
[7] However, Dr. Rose changed her opinion after meeting with Annalisa Lacalamita, the firearms examiner, and Ms. Lacalamita’s superior. It was Ms. Lacalamita’s opinion that the gun had been held at a distance of at least 1.4 metres when it was discharged. As a result, Dr. Rose changed her opinion and decided that the black ring was a “drying artefact”, and not evidence of a contact wound. She could no longer explain the pink ring, since carbon monoxide could not be the cause of the pink ring if it was not a contact wound.
[8] Further, as it turned out, Dr. Rose’s new opinion did not bear up under scrutiny. In cross-examination, she conceded that the drying artefact opinion was very unusual and that she had never seen it before in similar circumstances. She was unable to point to any literature to support this phenomenon. She was also unable to offer an opinion as to how long the drying process would take. Finally, she could not explain a photograph taken less than two hours after the time of death that showed the black ring when the wound was still clearly damp with blood.
[9] Ms. Lacalamita testified that the gun, a revolver, had no tendency to discharge accidentally. However, if the gun were cocked, relatively little force, 1.9 kilograms of pressure, was required to fire the gun. If the gun were not cocked, about 5 kilograms of pressure were required. The gun itself was relatively light, weighing only 0.68 kilograms when loaded. Ms. Lacalamita testified that it was “possible” for the gun to discharge accidentally if someone were twirling it around their finger while it was in a cocked position.
[10] Ms. Lacalamita’s opinion concerning the distance from which the firearm was discharged turned on the conclusions she drew from the state of the deceased’s shirt. She explained that she looked for gunshot residues on the shirt. There are various types of residues. There is soot, which is partially burnt and unburnt gunpowder and a smoke cloud. The closer the target surface is to the gun, the greater the concentration of soot. The presence of soot is determined by a visual inspection. Another gunshot residue is vaporous lead. The presence of vaporous lead is determined using a chemical test. Ms. Lacalamita also referred to firmly held and loosely held particles of residue. The presence of these particles is also determined by a visual inspection.
[11] In examination-in-chief, Ms. Lacalamita testified that she found no firearm discharge residues around the apparent entrance hole. She then performed some tests with the revolver by firing it from various distances at cloth-covered surfaces. She found that at 1.4 metres (4.5 feet) there were loosely held particles on the cloth that could be shaken off. There were no particles when the revolver was discharged at the slightly further distance of 5 feet. Since she found no gunshot residues on the shirt, she concluded that the firearm had to have been discharged from a distance of more than 4.5 feet or 1.4 metres. Ms. Lacalamita did not do any testing at less than 3.5 feet. She testified that based on the literature and not her own testing she believed that there would be soot and other firmly held particles when the gun was fired from up to 12 inches away.
[12] In examination-in-chief, Ms. Lacalamita was asked about the effect of the handling of the shirt in the treatment room: that it had been torn off, placed in a plastic bag and thrown on the floor, before being placed in a paper bag and given to police. She testified that it was difficult to say what would happen but she would expect loosely held particles could fall off, especially from the static electricity inside the plastic bag. She could not say how much of the loosely held particles would be lost.
[13] In cross-examination, Ms. Lacalamita conceded that there were some problems with the manner in which she conducted the testing. She used cotton to cover the target, although she did not know the composition of the shirt. The result could also be affected by the fact that the test panels were hit square on; if the deceased were hit at an angle, the particles may not have lodged on the fabric in the same way.
[14] Further, her conclusion about the distance of the firing from the shirt was based on the assumption that the shirt had never had any loosely-held particles on it. However, this assumption did not account for the rough handling of the shirt while the deceased was wearing it on the way to the hospital and after it was removed, which could easily have dislodged loosely held particles, and possibly embedded particles. She did not believe that the rough handling could remove soot. She testified that “guidelines” for firearms examiners state that soot will be present at distances up to 8 inches and possibly 12 inches. Finally, Ms. Lacalamita did not receive the plastic bag in which the shirt had originally been placed and so she was unable to determine if any particles had been lost in the bag due to static electricity. By the end of Ms. Lacalamita’s testimony, she had conceded that the handling of the shirt could change her opinion that the gun was at least 1.4 metres from the shirt when it was discharged. She maintained in re-examination, however, that the revolver must have been at least 12 inches from the shirt due to the absence of soot and embedded particles, which she opined would not have been dislodged by the rough handling. However, she then seemed to agree that even embedded particles could be removed by rough handling:
In terms of embedded powder particles, again, it depends on the – how severe the handling is and what’s happened to it, so I can only say it would be possible, but I don’t know it if – if it actually would happen in the scenario described.
[15] When she met with Dr. Rose, Ms. Lacalamita only told her that her tests showed that the distance was “going to be greater than four and a half feet”. She did not tell Dr. Rose about the problem with the plastic bag because she was unaware of it at the time of the meeting.
[16] Detective Bradley Joice is an expert in shooting reconstruction and bullet trajectory analysis. In his opinion, based on the position of the bullet holes in the walls of the house and the entrance and exit wounds on the deceased, the deceased was crouching down or bending over somewhat at the time he was shot. His opinion, however, was based on the theory that the bullet travelled in a straight line from the gun, through the body of the deceased and into the walls. He had no particular expertise to say whether the bullet would have changed direction as it travelled through these various media.
The Theory of the Crown
[17] The theory of Crown counsel at trial (not Ms. Klukach) was that the appellant had shot the deceased. He submitted that Ms. Lacalamita’s evidence still established that the gun was more than 12 inches from the shirt and that it had no tendency to discharge accidentally. Further, the evidence of Detective Joice established that the deceased would have had to have been holding the gun at an awkward angle at the moment it discharged. He also relied upon the place where the gun had been found, pointing out that it was unlikely the deceased could have placed it on the dresser given how he was being helped out of the room by the appellant, as observed by Ms. Chung.
The Trial Judge’s Charge on the Opinions of Dr. Rose and Ms. Lacalamita
[18] The trial judge summarized the expert evidence at some length. In particular, he dealt with the erosion of the opinions of Dr. Rose and Ms. Lacalamita. Some of those instructions are of assistance in understanding the expert evidence:
The conclusion of Ms. Lacalamita that the shot had to have been at a minimum distance of 4.5 feet or 1.4 metres from Tuan Dang has not survived this trial. That conclusion rested on there being no gunpowder particles projected onto the deceased’s shirt by the shot on June 5. Assuming that the shirt contained no gunpowder particles, Ms. Lacalamita believed she could simply test fire the gun at lengthening distances until gunpowder particles no longer appeared on the target surface, being not a loosely worn shirt but tighter woven cloth placed against a wood and foam frame. The problem with that assumption was that the shirt was not tested for gunpowder residue immediately after the event, nor was it contained in a protected environment from the time of the shot.
It is the opinions of Ms. Lacalamita and Doctor Rose, though given the latter’s willingness to agree with Lacalamita without providing a scientific basis for it, ultimately it is on Ms. Lacalamita’s evidence of the shot being at least 12 inches from the target based on lack of soot on the shirt that the Crown now rests its case, together with the trajectory analysis of Detective Joice. There is no longer any basis for the conclusion of Ms. Lacalamita, now that she has factored in the handling of the shirt and the potential for loss of gunpowder particles after the shooting, that the minimum distance of the shot on June 5 was 4.5 feet. As well, nothing she has said takes away from Doctor Rose’s physical observations of the wound which initially led her to the conclusion that it showed characteristics of a loose contact wound.
Please remember that you may not speculate beyond where the evidence takes you. You may draw reasonable inferences but they must be based on evidence. You should ask yourself in this case, each one of you and together, after considering all the evidence, and especially in view of the changes in position of the expert witnesses who were the only base for determining originally that the shot could not have come from Tuan Dang, and now that that distance is down from 4.5 feet to 8 to 12 inches, with evidence of a small black soot-like rim around the entry wound, can you really say beyond any reasonable doubt what happened in that room, and specifically, which activated the trigger and how. You must ponder that and all of what the counsel and I have said very carefully, but in the end, words like “unlikely” and “probably” cannot satisfy the Crown’s burden on the ultimate issues, who shot the gun and was it done unlawfully. [Emphasis added.]
The Jury’s Question
[19] Some four hours into their deliberation, the jury asked this question:
In this morning’s charge, the judge stated Ms. Lacalamita’s distance determination did not survive the court. Also, distance of shot is now down to eight to 12 inches firing range. Question: Are we restricted to this distance as fact?
After consulting with counsel, the trial judge answered the question as follows:
I’ve had a chance to hear from counsel, and what I suggest to you is this. First of all, this is a factual question. You are the judges of the facts so the answer to the question, “Are we restricted to this distance as fact”, is, no. You should evaluate Ms. Lacalamita’s evidence and decide what weight or reliance you place on it, that’s for you.
THE GROUNDS OF APPEAL
[20] As I have indicated, the principal ground of appeal is that the verdict is unreasonable. The appellant further submits that the trial judge’s answer to the jury’s question was misleading; that the trial judge erred in leaving pointing a firearm as a basis for unlawful act manslaughter; and that the trial judge misdirected the jury on careless use of a firearm, which was the other unlawful act upon which the Crown relied for manslaughter. Given my conclusion that the verdict is unreasonable I do not intend to deal with those grounds of appeal. I will, however, refer to the jury question issue as it sheds light on the reasonableness of the verdict.
ANALYSIS
[21] The test for whether a jury verdict is reasonable is well established: whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered: See R. v. Yebes, [1987] 2 S.C.R. 168 at p. 185 and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36. The reasons of Arbour J. in Biniaris are extremely helpful in understanding how that test is to be applied by an appellate court. First, it is not enough that the appeal court has some vague unease or lurking doubt about the verdict. The court must still articulate the basis upon which it finds the jury’s verdict to be unreasonable. The basis for the finding of unreasonableness may be grounded in judicial experience. As Arbour J. said at para. 40, the concept of acting judicially means “arriving at a conclusion that does not conflict with the bulk of judicial experience”. She continued on this theme at para. 41:
It is not particularly significant to describe this judicial oversight as either objective or subjective. It is exercised by an appeal court and therefore it will invariably draw on a collection of judicial experiences. Because of its judicial character, and because it purports to identify features of a case that will give experienced jurists cause for concern, it is imperative that the reviewing court articulate as precisely as possible what features of the case suggest that the verdict reached by the jury was unreasonable, despite the fact that it was not tainted by any erroneous instructions as to the applicable law. … There are many illustrations from the case law of verdicts having been found unreasonable essentially on the strength of accumulated judicial experience. Concerns about various aspects of the frailty of identification evidence have been a recurrent basis, by itself or together with other considerations, for overturning verdicts as unreasonable. [Emphasis added.]
[22] In my view, the explanation for the flawed verdict in this case must lie in the jury’s understanding of the expert evidence. Judicial experience, informed by cases such as R. v. Mohan, [1994] 2 S.C.R. 9 and R. v. Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321, and the recent report of Justice Goudge of this court stemming from the Inquiry into Pediatric Forensic Pathology in Ontario demonstrate the dangers inherent in failing to adequately and critically examine expert evidence.
[23] In Truscott, at para. 169, this court referred to the shift in forensic medicine from the authoritative experience model to an evidence-based approach as described by Dr. Pollanen, the Chief Forensic Pathologist for Ontario:
In his report and in his testimony before us, Dr. Pollanen described a shift in approach in forensic medicine and in other branches of medicine more generally. Traditionally, expert opinions were largely based on authoritative experience and anecdotal case reports. In the past few decades, and particularly in the last ten years, an alternative model has developed called the "evidence-based approach". This approach requires a critical analysis of peer-reviewed literature and attention to primary reviewable evidence from the postmortem examination. [Emphasis added.]
[24] Elements of the opinions of Dr. Rose and Ms. Lacalamita have about them the resort to authoritative experience and, in key features, lack grounding in the evidence. Most obviously, Dr. Rose changed her opinion that the bullet wound was a contact wound, but was unable to support that change in opinion either through the evidence or any peer-reviewed literature.
[25] Ms. Lacalamita’s original opinion that the revolver was more than 1.4 metres from the shirt was undermined by her failure to consider the frailties in the evidence, most importantly, her failure to consider the impact of the rough handling of the shirt and its original storage in the plastic bag. There were other frailties in her opinion, including her use of cotton to conduct her tests, her failure to consider the angle at which the gun was discharged, and her failure to conduct tests at less than 3.5 feet.
[26] To her credit, Ms. Lacalamita did modify her opinion to take into account the problems that were drawn to her attention. The concern is that the full impact of the frailties of the opinion may have been lost on the jury. I say that, in part, because of the jury’s question set out above. In hindsight, that question suggests that the jury did not fully appreciate the extent to which Ms. Lacalamita’s opinion had been undermined and was prepared to embark on speculation as to the distance the firearm was from the shirt. The question suggests that the jury was prepared to overlook the frailties in Ms. Lacalamita’s opinion so clearly elucidated by the trial judge in the main charge. In other words, the jury did not understand the importance of the evidence-based approach as a foundation for the reliability of expert opinion.
[27] In Mohan, at p. 21, Sopinka J. spoke of the dangers of expert evidence:
There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.
[28] The jury’s verdict suggests that it did not subject the expert evidence, especially the evidence of Ms. Lacalamita and Detective Joice, to the critical analysis required with a full appreciation of the reservations inherent in their opinions. The result may have been to distort the fact-finding process.
[29] The Crown’s theory that the appellant shot the deceased appeared unassailable at the opening of the trial. Dr. Rose had resiled from her opinion that the wound was a contact wound, Ms. Lacalamita had put the distance from which the firearm was discharged at over 1.4 metres, well beyond the reach of the deceased, and Detective Joice had testified to a trajectory that seemed an unlikely basis for a self-inflicted injury.
[30] By the end of the case, properly understood, the expert evidence had undermined the Crown’s case to such an extent that it could no longer confidently be said that the wound was not self-inflicted. Aside from the obvious opinion that death was the result of a gunshot, Dr. Rose’s opinion that the wound was not a contact wound had been entirely discredited. Ms. Lacalamita’s opinion that the gun was more than 1.4 metres from the deceased had reduced to more than 12 inches, well within the range of a self-inflicted injury. In fact, given her uncertainty about the possibility that even embedded particles had been removed by the rough handling before Ms. Lacalamita received the shirt, it may well be that the distance had been reduced to 8 to 12 inches. Detective Joice’s opinion about the trajectory was subject to assumptions that were not verified by the evidence. Further, the inference that the gun would have had to have been held at an awkward angle is no more than speculation.
[31] The remaining non-expert evidence did not point to the appellant as the person holding the gun at the fateful moment. The fact that the gun was found on the dresser two days later did not yield any relevant inference. The appellant may have placed the gun there after shooting the deceased, but the house held many other individuals and the Crown did not exclude the reasonable possibility that any of them placed the gun where it was found. Even if the appellant did place the gun on the dresser, this fact is not inconsistent with the deceased being the shooter and the appellant having picked up the gun after it fell from the deceased’s hand.
[32] In this court, counsel for the respondent sought to support the reasonableness of the verdict by reference to the fact that the appellant did not testify. In R. v. Noble, [1997] 1 S.C.R. 874 at para. 103, Sopinka J. speaking for the majority explained the limited use to which failure to testify can be put on review of the reasonableness of a jury verdict:
In my view, the appellate review cases do not contradict the conclusion that silence may not be placed on the evidentiary scales, either by the trier of fact or by appellate courts. Rather, the cases hold that appellate courts, like triers of fact, may refer to the silence of the accused as indicative of the absence of an exculpatory explanation; silence is not inculpatory, but nor is it exculpatory. Nowhere do the appellate review cases outlined above explicitly state that silence may be used as a "make-weight" by the trier of fact, but there is wording that suggests that silence may be used simply in the limited sense of not providing an innocent explanation.
[33] Thus, silence cannot be used to strengthen a weak Crown case and that is the case here. Given the frailties in the expert evidence and the lack of other evidence of any kind to support a conviction, the fact that the appellant did not testify is of no value. This was not a case where the defence depended upon exculpatory explanations. In its simplest form, this case was about the inferences to be drawn from the expert evidence and the fact that the appellant and the deceased were alone at the time the gun discharged. There were two possibilities arising from the evidence: either the appellant was holding the gun at the fatal moment or the deceased was holding the gun. The Crown’s case, based on Ms. Lacalamita’s original opinion, was that the injury could not have been self-inflicted. By the end of the trial, the Crown could no longer eliminate the equally likely possibility that the deceased was indeed holding the gun when it discharged. Given the state of the evidence, it was not possible to know what happened and how this tragic death occurred. The verdict was unreasonable and the conviction must be set aside.
DISPOSITION
[34] For these reasons, I would allow the appeal, set aside the conviction for manslaughter and enter an acquittal.
Signed: “M. Rosenberg J.A.”
“I agree Janet Simmons J.A.”
“I agree R. A. Blair J.A.”
RELEASED: “MR” NOVEMBER 30, 2010