Her Majesty the Queen v. Kokopenace [Indexed as: R. v. Kokopenace]
107 O.R. (3d) 189
2011 ONCA 536
Court of Appeal for Ontario,
Goudge, LaForme and Rouleau JJ.A.
July 29, 2011
Criminal law -- Appeal -- Accused raising four issues on appeal, including systemic underrepresentation of aboriginal on-reserve residents in jury roll -- Court of Appeal dismissing appeal on three non-jury-related grounds and adjourning hearing to hear submissions on ground of jury composition.
Criminal law -- Trial -- Charge to jury -- Expert evidence -- Pathologist testifying that deceased's stab wound did not match mechanics of stabbing as described by chief Crown witness -- Trial judge not required to instruct jury that pathologist's opinion on mechanics of stab would was unchallenged -- Trial defence counsel not objecting to charge -- Charge to jury regarding expert's evidence fair and correct.
Criminal law -- Trial -- Conduct of Crown -- Closing address -- Crown's closing address containing minor misstatements of fact -- Trial judge instructing jury that nothing counsel said was evidence -- Crown's brief remarks not rendering trial unfair.
The accused was charged with second degree murder. The jury found him guilty of manslaughter. Following the conviction, it became public knowledge for the first time that there was systemic underrepresentation of aboriginal on-reserve residents in the Kenora jury roll. The accused advanced that issue on appeal. He also raised three other grounds of appeal. The appeal was separated into two parts. Part I addressed the ground of appeal that were not jury roll-related, and Part II related to the composition of the jury. Submissions were heard on the three grounds that made up Part I.
Held, the hearing of the remaining issue in the appeal should be adjourned.
Crown counsel made some minor misstatements of fact in his closing address. However, in his charge to the jury, the trial judge instructed the jury that nothing counsel said was evidence. The Crown's remarks did not render the trial unfair.
The trial judge was not required to instruct the jury that a pathologist's opinion that the deceased's stab would did not match the mechanics of the stabbing as described by the chief Crown witness was uncontradicted. The trial judge fairly reviewed the pathologist's comments regarding the witness' description of the stabbing. Moreover, trial defence counsel did not object to the charge, and the accused was raising that concern for the first time on appeal.
The jury did not reach an unreasonable verdict. Although the chief Crown witness was obviously wrong about the exact mechanics of the stabbing, his testimony was otherwise supported by the forensic evidence and by other evidence.
Normally all grounds of appeal should be argued at one time but, in this case, had the appellant succeeded on any of the grounds in the first part of the appeal, it would not have been necessary to embark upon the discrete fourth issue relating to the composition of the jury roll. It is within the inherent jurisdiction of the court to control its own process and, as an exercise of that jurisdiction, the [page190] remainder of the appeal should be adjourned to a later date for submissions on the jury roll issue.
APPEAL by the accused from the conviction entered by Stach J. of the Superior Court of Justice, sitting with a jury, dated June 17, 2008.
Cases referred to R. v. H. (E.) (1997), 1997 418 (ON CA), 33 O.R. (3d) 202, [1997] O.J. No. 1110 (C.A.); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348; R. v. Polimac, [2010] O.J. No. 1983, 2010 ONCA 346, 254 C.C.C. (3d) 359, 262 O.A.C. 91 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 263]
Delmar Doucette and Jessica Orkin, for appellant. Gillian Roberts and Deborah Calderwood, for respondent.
The judgment of the court was delivered by
LAFORME J.A.: -- Overview
[1] The appellant was charged with second degree murder in the death of his friend Taylor Assin, who was stabbed to death during a fight. After a three-week trial, the jury found him guilty of manslaughter. He was sentenced to five years and 3.5 months' imprisonment after taking into account pre-sentence custody.
[2] The appellant appeals only his conviction and raises three grounds, which I will set out below. The appellant also raises an issue regarding the composition of the jury. In particular, he notes that, following the appellant's conviction, it became public knowledge for the first time that there was systemic underrepresentation of aboriginal on-reserve residents in the Kenora jury roll.
[3] After the appellant had been convicted -- but before he was sentenced -- defence counsel prepared a draft Notice of Application and Constitutional Issue. The draft notice was discussed at an in-chambers conference at which the trial judge determined that he was functus officio and declined to adjourn the sentencing hearing in order to hear the proposed application. The appellant then advanced this as a discrete issue on his conviction appeal.
[4] For purposes of appeal to this court, the matter was case managed by Rouleau J.A., and at his direction the appeal was separated into two parts. Part I addresses the grounds of [page191] appeal that are not jury related; Part II relates to the composition of the jury.
[5] On May 12, 2011, we heard submissions on the three grounds that make up Part I. These interim reasons explain why I believe it will be necessary to hear from the parties on Part II -- the fourth ground -- and why an adjournment of the hearing to a later date in order to do so is necessary.
[6] The Crown is correct that, as a matter of general practice, appeals should be heard in a single hearing in the interests of judicial economy and finality. However, in the particular circumstances of this case, I believe an adjournment to deal separately with the fourth ground is appropriate.
[7] For reasons I will detail below, I would dismiss the first three grounds of appeal. The fourth ground raises the larger issue of the composition of the jury roll. This is a discrete, self-contained issue that may not have been necessary if the appellant had succeeded on other grounds. However, given my disposition on the first three grounds, it will be necessary to have a full hearing of the merits of the fourth ground of appeal.
[8] I would not, therefore, issue an order at this time disposing of the appeal, pending the argument of the jury roll issue. Background
[9] Taylor's death occurred against a backdrop of heavy drinking in the days leading up to the stabbing. The drinking included the appellant, Taylor and virtually all the witnesses. Two different versions of events emerged at trial.
[10] The Crown's version was that while drinking in a residence, the appellant and Taylor started arguing about being in gangs. This lead to Taylor pushing the appellant and punches being thrown. The appellant ultimately grabbed Taylor behind the head with his right hand and pulled him towards him and stabbed Taylor in the chest area.
[11] The appellant admits fighting with Taylor, but at trial relied on the defences of accident, self-defence and intoxication, or some combination of all three. His version was that he was set upon by a group of partiers that included Taylor and three other men, who wanted to steal the remains of his whiskey. Taylor, he asserts, had a knife and stabbed himself as he and the appellant were struggling.
The Crown's version
[12] Jonathan Keewatin was the Crown's principal witness. He testified that he and the appellant were at Ian Pelly's house drinking with a group of people. Desmond Stone called the [page192] appellant "Blood" and the appellant punched him in the side of his head. Everyone but he and the appellant then took off and returned to the party at Christine Hyacinth's house, where they had been earlier that night.
[13] Jonathan testified that he followed to make sure Desmond was alright, and then he returned to the Pelly residence with Taylor. The two of them then drank with the appellant at the Pelly residence. No one else was there except for Ian Pelly, who was passed out in his bedroom. Jonathan testified that he was cutting up potatoes to make French fries when the appellant and Taylor started arguing about being in gangs.
[14] Jonathan testified that the appellant called Taylor's gang "pussies"; then Taylor pushed the appellant and they began punching each other. He said that the appellant pulled out a knife from the back pocket of his pants, grabbed Taylor behind the head with his right hand and pulled him towards him and stabbed him in the chest. Taylor said, "Jonathan, he's trying to kill me", and the appellant replied, "Yes that's what I'm trying to do." Jonathan testified that Taylor punched the appellant after he was stabbed, and that Jonathan then grabbed the knife from the appellant while he was on the floor.
[15] Jonathan also testified that Taylor walked to a bedroom and shut the door, but that the appellant grabbed another knife from a kitchen drawer and began puncturing holes in the door. Jonathan then ran over to the Hyacinth residence to get help from the other partiers.
[16] In addition, the Crown called Leonard Land and Shelley Land. They both testified that Leonard grabbed a metal bar about two and a half feet long and hit the appellant with it, and that the appellant then ran out the back door.
[17] The Crown also called Yvonne Fobister, the appellant's ex-girlfriend and mother of his child. She testified that the appellant went to her home after fleeing the Pelly residence; the appellant's clothes were wet with blood and he told her, "I killed Taylor". On cross-examination, she testified that the appellant told her that Taylor, Leonard and Craig Assin ganged up on him, and that Leonard hit him on the head with a two-by- four, causing the cut on his forehead.
[18] Yvonne also testified that the appellant told her that they were fighting over a bottle of whiskey and that the following people were present at the time of the fight: Craig Assin, Leonard Land, Shelley Land, Mary Assin, Reagan Assin, Taylor Assin, Ian Pelly and Jonathan Keewatin.
[19] The appellant was arrested later that day in the company of Yvonne. [page193]
[20] Aside from witness testimony, the Crown asserted that the appellant's version of events was contradicted by the forensic evidence. For example, the location and amount of blood on the appellant's clothing was consistent with Jonathan's account that Taylor knocked the appellant down after the stabbing and was on top of him, facing him, while punching him. It was not, on the other hand, consistent with the appellant having Taylor in a bear hug from behind, left side to left side.
The appellant's version
[21] The appellant gave a formal statement to the police. The Crown did not tender the statement into evidence and it was not made an exhibit at trial, but the Crown referred to it on cross-examination, and portions of it were played to the jury at that time.
[22] In the formal statement, the appellant claimed that he did not want to fight, but that he was hit in the head with a two-by-four. After that point, he blacked out, and he did not know that Taylor was dead until he arrived at Yvonne's house. He gave a list of people that he said were present in the Pelly residence at the time of the fight, including Reagan Assin.
[23] At trial, the appellant testified that on the night in question, he and Jonathan were making French fries at the Pelly residence, and Ian Pelly was passed out, when Taylor, Craig, Mary and Reagan Assin and Leonard Land and Desmond Stone arrived. Reagan asked for a drink and the appellant passed over his bottle of whiskey. Then, without warning, Desmond called him a "bitch" and pushed him, which resulted in a shoving match. He punched Desmond, which cut his face, and Desmond went into the washroom with Mary.
[24] The appellant testified that he then noticed that Leonard was holding something in his hand and that Taylor was holding a knife. Taylor said, "We want your shit", referring to the bottle of whiskey that the appellant was once again holding, and "You want to get stabbed?" The appellant responded that he did not intend to get stabbed over a bottle of whiskey, and he took one last swig, intending to then hand over the bottle. Before he could do so, he was hit over the head by Leonard, and then Taylor swung the knife at him, catching him on the forehead.
[25] The appellant testified that at this point he grabbed Taylor's knife hand and pulled him into a bear hug from behind. The appellant said he was struggling to keep a grip on Taylor and was using him as a human shield against blows from Leonard. The appellant says he then fell backwards and Taylor fell on top [page194] of him, still holding the knife, and he got stabbed by accident. The appellant said he pushed Taylor off and tried to get up, blocking a blow from Leonard with his left forearm, which broke his arm. Then he says Reagan came at him with another knife, which he took from Reagan.
[26] He testified that at this point, people yelled "he has a knife" and ran out.
Pathology evidence
[27] Dr. MacDonald performed the post-mortem examination of Taylor. He noted that Taylor was stabbed only once, with the knife entering his left chest beneath his collar bone and then travelling upwards and inwards into his neck. He testified that while the wound superficially appeared to be a chest wound, in fact it was a neck wound. Although Taylor could have remained active for several minutes despite this injury, he would have bled to death quickly thereafter.
[28] Dr. MacDonald remained in the courtroom during Jonathan Keewatin's testimony, and was called for a re-cross-examination by the defence. He testified that Taylor's stab wound did not match the mechanics of Jonathan's testimony.
Discussion -- Part I
[29] As previously noted, this appeal has been separated into two parts. The first deals with what I will describe as the case-specific merits of the appeal while the second deals with the issue of the jury composition. I will address Part I first, namely, the first three grounds advanced by the appellant, which are (1) inappropriate remarks were made in the Crown's closing address that were prejudicial and rendered the trial unfair; (2) the trial judge gave a misleading instruction in connection with the expert opinion testimony of the pathologist; and (3) the jury's verdict was unreasonable.
[30] I would dismiss these three grounds of appeal. Although I believe there is an aspect of impropriety in the Crown's closing argument, I do not accept that it resulted in an unfair trial. I also do not accept that the trial judge's instruction to the jury regarding the expert opinion evidence of the pathologist was misleading. And finally, the jury's verdict was entirely reasonable. [page195]
(i) Did Crown counsel make an improper closing argument that rendered the trial unfair?
[31] The appellant relies on one portion of the trial Crown's closing address to the jury to support this ground of appeal, which defence counsel objected to at trial. The relevant portion is as follows:
And in Mr. Kokopenace's own version of events told to the police, he said he was drenched in blood. Your experience will tell you that Clifford Kokopenace in his explanation for all of the blood on his right chest area is incredible and should not be believed. Clifford Kokopenace told the court that Reagan Assin came at him with a second knife and that he disarmed her with a broken arm and the cast on his left leg. You didn't hear from Reagan Assin. The Crown didn't call her as its witness because, quite frankly, there was no indication that she was even present at the material time, let alone being involved in attacking Mr. Kokopenace with a knife. That version of events was heard for the first time when Clifford Kokopenace took the witness box and testified. All of the witnesses, including Reagan Assin, were served with a subpoena. She was available to both parties. (Emphasis added)
[32] The appellant's trial counsel submitted to the trial judge that these comments amounted to Crown counsel improperly giving evidence. Further, the appellant did state -- in a part of the police statement that was not played for the jury -- that Reagan was present during the stabbing; the trial Crown's statement was, he argued, a prejudicial misstatement of the facts.
[33] The trial judge held that although there was "some substance" to the suggestion that Crown counsel was giving evidence, he decided that it was not an impropriety that would prompt him to give further instruction to the jury.
[34] Here the appellant argues that the comments in the closing address rendered the trial unfair for three reasons. First, the remarks suggest that the evidence of Reagan Assin's presence during the stabbing was missing from the appellant's statement to police, which was inaccurate. In fact, the appellant did say in his police statement that Reagan Assin was present during the stabbing. The issue of who was present during the stabbing was critical, the appellant says, because it was a primary distinguishing feature between the appellant's version of events and Jonathan's.
[35] Second, Crown counsel improperly implied that, because he had no way of knowing in advance that the appellant would testify that Reagan Assin had been present during the stabbing, the Crown had been deprived of the opportunity to call her as a witness. Indeed, the appellant had stated that Reagan was [page196] present in his statement to police and a Crown witness, Yvonne Fobister, had testified that the appellant told her that Reagan was present. Crown counsel, therefore, ought to have known to call Reagan and others whom the appellant claimed were present during the stabbing as witnesses.
[36] Third, Crown counsel's statement that "[s]he was available to both parties" improperly implied that the defence ought to have called Reagan Assin as a witness. Counsel on both sides knew that Reagan would not support the appellant's version of events, and thus she was a potential Crown witness whom Crown counsel had decided not to call.
[37] As I said, I would not give effect to this ground of appeal. When this relatively brief portion of the trial Crown's closing jury address is considered in the context it was given, and of the trial as a whole, it could not have improperly affected the decision of the jury so as to render the trial unfair. I reach this conclusion for several reasons.
[38] First, on appeal the Crown accepts that the trial Crown's comment that "there was no indication that she was present at the material time" was a misstatement. Indeed, it is clear that the trial Crown was aware that Reagan Assin was present during the stabbing. Nevertheless, it is also clear that it was only when the appellant testified that his account became more than that. That is to say that, according to the appellant, Reagan was actually part of the attack on him and that she was the source of the second knife found at the scene.
[39] It is entirely unlikely that the jury would have accepted this minor misstatement of fact when considered against the clear evidence of the appellant, the closing arguments of defence counsel and the trial judge's summary of the appellant's evidence given to the jury. To the extent that in these circumstances this misstatement registered at all with the jury, I am satisfied they would have fully appreciated it was wrong.
[40] Second, in mentioning Reagan in his closing address, I do not agree that Crown counsel was being unfair. When one reads the entire impugned portion, it seems clear that Crown counsel was again referring to the fact that the Crown had no way of knowing in advance that the appellant would testify that Reagan was involved in the stabbing.
[41] Third, while defence counsel at trial initially objected to these remarks, he ultimately concluded that the remarks were better left alone, and made these comments to the trial judge:
Your Honour at the close of the day on Wednesday I had raised a concern about some comments that [Crown counsel] had made in his closing address and Your Honour had invited me to make additional written submissions on [page197] the point. Having had some time to consider it I'm of the view that I would rather Your Honour not bring special attention to the issue as part of a commentary in Your Honour's charge and in the result I've not provided Your Honour with those submissions. I'm happy to let the situation stand.
[42] And finally, any danger that the remarks posed in terms of leading the jury astray was effectively neutralized by the instructions to the jury which followed shortly after. Specifically, the jury was told that nothing counsel said was evidence; that it was up to them to decide the facts based on the evidence they heard; and repeatedly told them that the burden of proof lay entirely with the Crown, even with respect to defences. I believe the statement was, in part, a misstatement of the facts -- but not entirely so. While it was, I think, unfortunate, it did not result in an unfair trial. The effect of the remarks on the trial -- when considered in the context of the case as a whole -- would not have improperly affected the decision of the jury so as to render the trial unfair.
[43] As the exchange between defence counsel and the trial judge demonstrate, the trial judge was best positioned to gauge the effects of the remarks on the trial, and to decide how best to address them. His decision was made with the clear input of defence counsel and is entitled to deference from this court.
[44] It is for these reasons that I would reject this ground of appeal.
(ii) Did the trial judge give a misleading instruction on the pathologist's expert opinion evidence?
[45] In this case, the pathologist, Dr. MacDonald, performed the post-mortem examination of Taylor and noted that he was stabbed only once, with the knife entering his left chest beneath his collar bone and then travelling upwards and into his neck. While the wound superficially appeared to be a chest wound, his opinion was that it was, in fact, a neck wound. While Taylor could have remained active for several minutes despite this injury, he would have bled to death quickly thereafter.
[46] As noted earlier, Dr. MacDonald remained in the courtroom during Jonathan's testimony, and was called for a re- cross-examination by the defence. He then testified that Taylor's stab wound did not match the mechanics of Jonathan's testimony. More specifically, he testified that Jonathan's description of a downward stab while both men were standing upright did not accord with the path of the wound.
[47] The appellant asserts, for the first time on appeal, that the trial judge erred by failing to instruct the jury that Dr. MacDonald's opinion on the mechanics of the stab wound was [page198] unchallenged. That is, there was no rational reason for the jury to reject it, and unless the jury found there was such a reason, they were bound to accept it.
[48] I would reject this ground of appeal for two reasons. First, the trial judge fairly reviewed the pathologist's comments regarding Jonathan's description of the stabbing. Second, the appellant is raising this concern for the first time on appeal. Trial counsel did not object to the trial judge's instructions to the jury on this issue. As I explain, I believe the trial judge's instructions were adequate.
[49] Before commenting further, I would note that Dr. MacDonald's testimony on this issue was probably not the subject of expert testimony; rather, it was a common sense observation, which would be better left to submissions. In any event, as I said, the trial judge dealt with this evidence in a manner that was fair to the defence and easily fell within his broad discretion of how best to review the evidence.
[50] First, it is of note that the trajectory of the knife was not an issue in dispute. No one took issue with the correctness of Dr. MacDonald's evidence on this point. This is evidenced by the fact that experienced defence counsel did not object to the trial judge's review of Dr. MacDonald's evidence.
[51] The trial judge carefully reviewed Dr. MacDonald's comments regarding Jonathan's description of the stabbing with the jury and suggested that they consider the testimony of Jonathan and the appellant, and what support, if any, the exhibits, the forensic evidence and the testimony of Dr. MacDonald offered to that testimony. Furthermore, defence counsel did not ignore this evidence and specifically referenced to the jury the fact that the trajectory of the wound did not correspond with Jonathan's account of the stabbing. In all the circumstances, it seems highly unlikely that the jury rejected Dr. MacDonald's evidence.
[52] Second, the appellant is raising the trial judge's instructions on Dr. MacDonald's evidence for the first time on appeal. Although the failure of defence counsel to object to the trial judge's instructions is by no means determinative of the issue, it is not irrelevant. Defence counsel's failure to object says something about both the overall accuracy of the instructions and the seriousness of the alleged misdirection: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 38.
[53] A trial judge's review of the evidence to a jury must ensure that the jury understands two things. First, how the evidence can and cannot be used in the context of the case. And second, the positions taken by the defence and Crown with respect to that evidence: R. v. Polimac, 2010 ONCA 346, [2010] O.J. No. 1983, 254 C.C.C. (3d) 359 (C.A.), at para. 97, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 263. [page199] When assessing the adequacy of the trial judge's review of the evidence, the failure of counsel to object is of particular significance.
[54] A failure to object to this aspect of a charge can usually be taken to indicate satisfaction with the review of the evidence, or at least an acknowledgement that it was adequate in the circumstances of the case. The Crown of course is still obligated to prove all of the elements of an offence beyond a reasonable doubt -- a principle the trial judge made clear throughout his charge.
[55] The trial judge's review of the evidence in this case was both fair and correct in the circumstances. Moreover, the fact that trial counsel did not object further supports the conclusion that the trial judge's instruction was fair and correct. I would therefore reject this ground of appeal as well.
(iii) Did the jury reach an unreasonable verdict on the offence of manslaughter?
[56] This issue relates again to the second issue raised above. And once again, the appellant submits that it turns on the uncontradicted opinion of Dr. MacDonald. He argues that it is the one piece of independent evidence that supported the appellant's version of events -- that it was an accidental stabbing during a fall -- and directly undermined Jonathan's version of events. On this basis, he argues that a verdict of acquittal should be entered.
[57] In order to convict the appellant of manslaughter, the jury only had to be satisfied beyond a reasonable doubt that the appellant caused Taylor's death during an unlawful act, namely, a fight. In oral argument, the appellant fairly conceded that if the jury could find that the appellant introduced the knife into the fight, then the verdict could not be unreasonable.
[58] Jonathan's testimony was that he was not sure where the knife came from but he was unmistaken that it was the appellant who introduced it to the fight. He was further unequivocal that during the stabbing, Taylor called out, "Jonathan he's trying to kill me", to which the appellant responded, "Yes that is what I'm trying to do." There is no reason why the jury was not entitled to believe these portions of Jonathan's testimony.
[59] As the Crown notes, although Jonathan was obviously wrong about the exact mechanics of the stabbing, his testimony was otherwise supported by the forensic evidence and by other evidence. The appellant's evidence, in contrast, was contradicted by the forensic evidence and was filled with major inconsistencies. [page200]
[60] The evidence to support the jury's conclusion, therefore, was more than sufficient to permit them to conclude that the appellant caused Taylor's death during a fight, an unlawful act. The manslaughter verdict was reasonable.
Disposition
[61] For these reasons, I would not give effect to any of the three grounds of appeal advanced on Part I of this appeal. And, as I outlined at the outset, I would not, however, issue an order disposing of the appeal at this time, pending the hearing of Part II -- the fourth ground of appeal -- the jury roll issue.
Part II
[62] My proposed decision to adjourn the remainder of the appellant's appeal to a later date, while perhaps an unusual one, is within the inherent jurisdiction on this court to control its own process. Such inherent jurisdiction is a well- recognized principle: see R. v. H. (E.) (1997), 1997 418 (ON CA), 33 O.R. (3d) 202, [1997] O.J. No. 1110 (C.A.). This situation, however, is distinguishable from that in H. (E.).
[63] In H. (E.), this court held that it did not have the jurisdiction to re-open an appeal that had already been dismissed on its merits so as to allow the appellant to add a new ground of appeal. Here, we will not have disposed of the appeal on its merits because, as noted above, the outstanding issue remains to be argued. Indeed, because I would dismiss the first three grounds of appeal, it is unnecessary to consider the appellant's argument -- strenuously opposed by the Crown -- that this court has the ability to allow the appeal but "stay" the resulting order pending the argument on the fourth ground.
[64] Again, I emphasize that, because all of the grounds of appeal have not yet been fully determined, I would not issue an order disposing of the appeal at this time. Rather, I would adjourn this hearing to a date to be determined. I would order that we remain seized of this appeal and hear argument on the jury roll composition at that time.
Order accordingly.