COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pocock, 2015 ONCA 212

DATE: 20150331

DOCKET: C57464

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon Pocock

Appellant

Delmar Doucette, for the appellant

David Lepofsky, for the respondent

Heard: November 24, 2014

On appeal from the conviction entered on May 17, 2013 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

[1] The appellant, Gordon Pocock, was charged with the second degree murder of his housemate Dexter Elliott. The appellant testified that he stabbed Mr. Elliott in self-defence and did not intend to kill him. Causation was also an issue at trial, as Mr. Elliott suffered from advanced arterial disease and died from a heart attack. The jury acquitted the appellant of murder and convicted him of the included offence of manslaughter.

[2] The appeal focuses on the jury’s finding that the appellant’s unlawful actions caused Mr. Elliott’s death. Counsel for the appellant submits the causation finding is unreasonable. Counsel contends the medical evidence was the only evidence relevant to causation and did not provide a basis upon which a reasonable jury, properly instructed, could find that the appellant’s assault on Mr. Elliott was a contributing cause in Mr. Elliott’s death. For the reasons that follow, I would dismiss the appeal.[^1]

II

[3] The appellant, Mr. Elliott and a third man, Steve Pazuk, rented separate rooms in the same apartment unit. The rooms opened into a common kitchen area. There was no animosity between the appellant and Mr. Elliott prior to the events relevant to this proceeding.

[4] On November 16, 2011, at about 9:00 p.m., the appellant and Mr. Elliott became involved in an altercation in the common area of the apartment. During the altercation, the appellant stabbed Mr. Elliott several times. Mr. Elliott collapsed and died shortly after the altercation ended.

[5] Two versions of these events were presented at trial. The appellant described a single altercation that began when Mr. Elliott attacked him from behind in the kitchen and ended when the appellant, lying underneath Mr. Elliott and desperate to free himself, stabbed Mr. Elliott in the back several times with a paring knife.

[6] Mr. Pazuk, who did not see but heard the events, indicated that there were two separate altercations. The first was brief and took place in the kitchen. The second occurred about five minutes later when the appellant exited his bedroom. The second altercation was considerably longer than the first. It began in the kitchen and continued in Mr. Elliott’s room.

[7] It was the Crown’s position at trial, based primarily on Mr. Pazuk’s evidence, that Mr. Elliott had pushed the appellant to the floor during the initial confrontation in the kitchen. The appellant retreated to his room. About five minutes later, angry at Mr. Elliott for the earlier altercation, the appellant left his room armed with a knife. He attacked Mr. Elliott and stabbed him several times.

[8] Mr. Elliott suffered 17 knife wounds. The pathologist, Dr. Shkrum, categorized seven of the wounds as stab wounds. There was a nine centimetre deep stab wound in Mr. Elliott’s lower back, five other stab wounds between two and three centimetres deep also in his lower back, and a one centimetre deep stab wound in Mr. Elliott’s scalp behind his ear. In addition to the seven stab wounds, there were 10 superficial punctures in Mr. Elliott’s upper back. None of the knife wounds compromised any organ or major blood vessel. None were immediately fatal.

[9] Mr. Elliott died of heart failure brought on by severe and longstanding heart and arterial disease. The extensive nature of that disease put Mr. Elliott “at extreme elevated risk” for cardiac arrest.

[10] In his post-mortem report, Dr. Shkrum indicated that the physical and emotional stress of the injuries suffered by Mr. Elliott, combined with the blood loss caused by those injuries, “could have precipitated fatal cardiac arrhythmia/heart failure.” He amplified this opinion in his examination-in-chief:

Although the stab wounds themselves were not immediately fatal, there would have been some element of blood loss; I can’t quantify that, how much blood that he lost. Obviously, there had been bleeding internally in the body and there had also been bleeding externally at the scene but there was some blood loss. But given the fact that he has heart disease and basically the heart is a pump, some loss of blood from that system could affect the function of the pump.

Secondly, the fact that there is physical trauma and probably physical exertion during that trauma, the physical exertion could cause his heart to increase the number of beats per minute, to try to pump more blood, but again, because the heart is diseased it might not function that efficiently. Secondly, the stress related to the trauma would increase his heart rate and again, because it’s not a normal pump, may not function very efficiently.

So again, there are in a sense, mechanisms, blood loss, increased heart rate, pump failure, these are all examples of sort of physiological disturbances that could be related to these particular stab wounds – or can be related to them, excuse me.

[11] In cross-examination, Dr. Shkrum agreed that he could not say with any certainty that the stab wounds were a contributing factor in Mr. Elliott’s death. Dr. Shkrum could not distinguish between the potential impact of the physical and emotional stress factors and the impact of the blood loss caused by the stab wounds. His cross-examination finished with the following exchange:

Q. Exactly. So you can’t say that the stab wounds that he sustained were a contributing factor to the cardiac arrest, they might have contributed, but they might not have, correct?

A. It’s possible, yes.

Q. All right. And it follows from that that you can’t say that the stab wounds were a substantial contributing factor to the cardiac arrest that he sustained, can you?

A. Well, again, speaking in relative terms, I can say that they might’ve been a factor but I can’t say whether they were substantial or not.

III

[12] Counsel for the appellant fairly characterizes the causation issue this way in his factum:

What was at issue was whether Elliott simply died from his underlying heart disease and the stress of his own actions in the fight that he started and would have died anyway, or whether Pocock’s actions also contributed to his death.

[13] He goes on to argue that the evidence of Dr. Shkrum was determinative of the causation issue and since Dr. Shkrum could not say that the injuries caused by the stabbing of Mr. Elliott were a contributing factor in the death, there was no basis upon which the jury could reach that conclusion. Counsel relies on R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at paras. 82-83.

[14] The causation issue presented in this case was a straightforward one. Had the Crown proved beyond a reasonable doubt that but for the appellant’s assault, Mr. Elliott would not have died when he did? If so, the appellant caused Mr. Elliott’s death.

[15] A jury must consider all of the evidence that is relevant to any particular issue. Proof of causation in homicide cases will often involve expert medical opinion testimony and, in some instances, will turn entirely on that evidence. However, in many cases, the jury will have additional non-medical evidence to consider in determining causation: see R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at pp. 515-519.

[16] In this case, the jury had Dr. Shkrum’s evidence that physical and emotional stress and blood loss could have contributed to the failure of Mr. Elliott’s diseased heart. In considering whether the factors identified by the expert played a role in Mr. Elliott’s death, the jury was entitled to consider all the evidence, particularly the evidence describing the altercation.

[17] It was open to the jury to find, contrary to the appellant’s evidence, that there were in fact two separate altercations. The first altercation occurred in the kitchen. It was brief and involved a relatively minor assault on the appellant by Mr. Elliott. The second alteration occurred about five minutes later and involved a much more serious attack by the knife-wielding appellant on Mr. Elliott. In the course of that attack, Mr. Elliott was stabbed several times, resulting in significant blood loss through both external and internal bleeding. Virtually immediately after the second altercation, Mr. Elliott collapsed into unconsciousness and died a short time later.

[18] If the jury took that view of the evidence, and their verdict suggests they did, the jury could reasonably infer that it was the second altercation during which the appellant attacked Mr. Elliott that caused Mr. Elliott extreme emotional and physical stress as well as significant blood loss. The jury could then reason that as Mr. Elliott died almost immediately after the second altercation, the stress and blood loss that altercation caused exacerbated his existing serious heart condition, causing him to lose consciousness and die: see R. v. Mullings, 2014 ONCA 895, [2014] O.J. No. 6025, at para. 101.

[19] Nothing in Talbot detracts from the well-established principle that a jury must consider all of the relevant evidence in determining the issue of causation. In Talbot, the pathologist opined that death was caused by the deceased’s head hitting the ground after he was struck by the accused. Subsequent to that blow, the deceased was kicked in the head. The pathologist was asked whether these kicks that were inflicted after the deceased hit the ground could have contributed to his death. He testified that he could not exclude that possibility, although he did not think it was likely.

[20] This court concluded that there was no evidence upon which a jury could have been satisfied that the kicks caused the death. In so holding, the court referred to the medical evidence which offered no more than a possibility of a connection between the kicks and the death, and to the absence of any other evidence that could demonstrate a causal link: Talbot, at paras. 82-83. As outlined above, in this case, unlike Talbot, there was non-medical evidence reasonably capable of linking the effects of the appellant’s attack on Mr. Elliott to Mr. Elliott’s death.

[21] I would dismiss the appeal.

RELEASED: “DD” “MAR 31 2015”

“Doherty J.A.”

“I agree K. Feldman J.A.”

“I agree Gloria Epstein J.A.”

[^1]: Counsel made two additional arguments. First, he alleged error in the self-defence instruction. There was no merit to that submission and the court did not require submissions from the Crown. Counsel also argued that the trial judge erred in failing to grant the directed verdict motion brought at trial on the basis that there was no evidence to support a causation finding. This argument is subsumed in the argument directed at the reasonableness of the verdict and does not require separate consideration.