COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 359

DATE: 20160510

DOCKET: M46451 (C62086)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Appellant (Applicant)

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 9, 2016

ENDORSEMENT

[1] The appellant, April Luckese, was convicted on March 16, 2016 by Justice G. Lemon of manslaughter in the death of 14-month old Duy-An Nguyen, an infant placed at the day care she operated: 2016 ONSC 1206. On May 9, 2016, Ms. Luckese was sentenced to six years in jail, less credit of 24 days for pre-sentence custody: 2016 ONSC 2812. Ms. Luckese applies for bail pending the hearing of her appeal pursuant to s. 679(1)(a) of the Criminal Code.

[2] The Crown opposes her application. The Crown concedes that Ms. Luckese’s appeal is not frivolous and that she will surrender herself into custody in accordance with the terms of any release order. It is the Crown’s submission that Ms. Luckese has failed to establish that her detention is not necessary in the public interest, as required by s. 679(3)(c).

[3] For the reasons set out below, I accept the Crown’s submission and dismiss the application.

THE GOVERNING PRINCIPLES

[4] The parties agree that the applicable law is set out in R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 48, where this court described the factors involved in balancing the conflicting principles of the enforceability and reviewability of judgments:

The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes….

[5] The public interest ground “takes on particular importance in cases where an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration”: R. v. Baltovich (2000), 2000 5680 (ON CA), 47 O.R. (3d) 761 (C.A.), at para. 19. At the same time, appellate courts have recognized that, where the grounds of appeal are strong and where there is serious concern about the accuracy of the verdict, the public interest may well shift in favour of release even for serious crimes: Baltovich, at para. 20.

THE CENTRAL ISSUE ON THE APPLICATION

[6] Ms. Luckese submits that her detention is not necessary in the public interest for several reasons: (i) she has strong grounds of appeal; (ii) she complied with all terms of her pre-sentence release orders; and (iii) in his reasons for sentence, the trial judge described her as a “respected day care provider” and the events at issue were “entirely out of character for her:” at paras. 2 and 15.

[7] In response, the Crown submits that Ms. Luckese has been convicted of a very serious offence and sentenced to a long prison term. Although her grounds of appeal are not frivolous, the Crown argues they are weak.

[8] Several factors relevant to the Farinaccianalysis are not in dispute. Although not a repeat offender, Ms. Luckese was convicted of a very serious offence: the manslaughter of a vulnerable infant in her care. As well, Ms. Luckese has received a lengthy sentence of six years’ imprisonment, so this is not a case where the denial of bail would render her appeal nugatory. Given the seriousness of the offence, in my view the assessment of the “public interest” factor really turns on the strength or weakness of the grounds Ms. Luckese intends to advance on her appeal. Before considering them, it is necessary to review briefly the reasons of the trial judge.

THE REASONS OF THE TRIAL JUDGE

[9] The evidence was described at length in the trial judge’s reasons. Briefly, January 5, 2011 was the second day 14-month old Duy-An had been left in the care of Ms. Luckese. On that day, Duy-An suffered a severe head injury while at the day care, specifically a 2.5 cm fracture of the skull at the back of her head. Despite medical care over the next two days, including surgery, Duy-An died on January 7.

[10] The issue at trial was whether Duy-An’s injuries were the result of an accident or a trauma inflicted to her head. The Crown called expert medical testimony and relied heavily on statements Ms. Luckese made to several police officers and others. Ms. Luckese did not testify at the trial.

[11] At trial, a police officer, Detective Thomson, testified that during a trip in the police cruiser to the police station, he recorded Ms. Luckese as saying: “I know it is wrong. I just snapped. I guess I hit a breaking point.”

[12] The trial judge relied, in part, on that statement in finding Ms. Luckese guilty of manslaughter. At paras. 137-38 of his reasons, the trial judge wrote:

Similarly, the Crown submits that I can draw the inference that Ms. Luckese lost her patience and struck the child since she was taking care of seven children under three years of age; Duy-An was new to the day care and apparently had very little English; she had been crying throughout her stay and had apparently awoken when all of the children should have been asleep. Combined with Ms. Luckese’s statement to Detective Thomson in his cruiser, this is the inference that I can draw.

I find that Ms. Luckese, as she said to Detective Thomson and Mr. Doyle, momentarily lost her patience with Duy-An and assaulted her, causing the skull fracture. There is no other rational explanation for the skull fracture and undisputed symptoms. That illegal act led to the death of Duy-An. Ms. Luckese is guilty of manslaughter.

[13] The trial judge also found Ms. Luckese guilty of manslaughter on another basis. He concluded that Ms. Luckese had failed to provide Duy-An with the necessaries of life because she did not call for emergency medical care when she first observed that the child was unresponsive. This led the trial judge to make the following findings at paras. 160-61 of his reasons:

Based on the medical evidence set out above, I find that Duy-An’s death occurred because of a lack of oxygen to her brain. That lack of oxygen came from the skull fracture and the passage of time. Ms. Luckese knew the cause of that skull fracture. Her failure to act added to that passage of time. On this evidence, I am satisfied that the delay in treatment was a significant contributing cause to Duy-An’s death.

I am satisfied beyond a reasonable doubt that Ms. Luckese failed to perform her duty to provide the necessaries of life to Duy-An which was a significant cause of her death. Ms. Luckese is guilty of manslaughter on that basis as well.

ANALYSIS OF THE GROUNDS OF APPEAL

[14] Ms. Luckese intends to advance three grounds of appeal - two in respect of the trial judge’s finding that she assaulted Duy-An, and one in respect of his finding that she failed to provide the necessaries of life. As to the finding of assault, Ms. Luckese submits that trial judge made two errors: (i) he erred in his use of the good character evidence Ms. Luckese adduced at trial; and (ii) he erred in admitting the statement Ms. Luckese made to Detective Thomson in the cruiser on the return to the police station. As to the finding that she failed to provide the necessaries of life, Ms. Luckese submits that the trial judge misapprehended the evidence regarding causation. I shall examine each proposed ground of appeal in turn.

The use of good character evidence

[15] At trial, Ms. Luckese called seven witnesses to testify about her reputation as a day care provider. The trial judge noted, at para. 123: “They described her and her reputation as kind, loving, caring, calm, patient, responsible, dependable and open. The Crown does not deny that she was all of that over her career as a care provider.”

[16] Evidence of an accused’s good character is relevant not only to support the accused’s credibility as a witness, but also to support an inference that the accused is unlikely to have committed the offence charged: Sidney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada Inc., 2014), at para. 10.43; R. v. Logiacco (1984), 1984 3459 (ON CA), 2 O.A.C. 177, at para. 11. Ms. Luckese did not testify at trial, so the defence sought to use the evidence of her good character for the second purpose. The trial judge understood the defence’s position for he wrote, at para. 125: “[the] defence submits that given the character evidence that was called, it is unlikely that she would have committed the offence charged.”

[17] Ms. Luckese submits that the trial judge erred in how he used the evidence of her good character. She points to para. 136 of the trial judge’s reasons where he wrote:

[Ms. Luckese’s] character evidence shows that she was an exemplary day care provider and had experience dealing with children in their early days in her care. However, how she had dealt with other children, in other circumstances, is not of great significance to me in this case relating to this child on this day. I cannot draw the inference that because she worked well with other children on other days, she could not have assaulted this child. [Emphasis added.]

[18] Ms. Luckese contends that the trial judge misstated the law. Instead of considering whether the evidence of her good character could support an inference that she was “unlikely” to have committed the offence, the trial judge erroneously considered whether the evidence would support an inference that she “could not have” assaulted Duy-An.

[19] The Crown argues that the language used by the trial judge to describe the law echoes that used by the Supreme Court of Canada in R. v. Charlebois, 2000 SCC 53. [2000] 2 S.C.R. 674. There, in his discussion of the trial judge’s charge on the issue of good character evidence, Bastarache J. stated for the majority, at para. 30:

The evidence of good character sheds little light on this question. This is not a case where the actions of the accused are in doubt; rather it is only his mental state which is under consideration. Given the evidence, the argument that the accused could not have committed murder because he was of good character has little significance. [Emphasis added.]

[20] I accept the Crown’s characterization of this ground of appeal as arguable, but weak. The trial judge understood the use the defence advocated for the evidence of Ms. Luckese’s good character, but he was not prepared to give it “great significance.” In so doing, the trial judge employed language about the use of good character evidence similar to that found in the Charlebois decision. Whether the trial judge’s treatment of the evidence of good conduct, when viewed in the entirety of his reasons, was correct or not may reach the threshold of an arguable point of law, but it does not fall at the strong end of the spectrum.

Ms. Luckese’s statement to Detective Thomson in the police cruiser

[21] The police conducted a videotaped interview with Ms. Luckese on the day of the incident. Following the interview, they took her back to the day care to walk through the events of the day. On the return trip to the police station, Detective Thomson asked her some questions. He recorded Ms. Luckese as saying: “I know it is wrong. I just snapped. I guess I hit a breaking point.” The exchange in the police cruiser was not videotaped.

[22] On a voir dire, the defence argued that the statement should be excluded because it had not been videotaped. The trial judge agreed that the police ought to have videotaped the statement. But, relying on the decision of this court in R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.), the trial judge held that there was no absolute rule requiring the recording of statements. After reviewing all of the evidence surrounding the making of the statement, the trial judge concluded that Ms. Luckese had made the statement voluntarily and he admitted it.

[23] Ms. Luckese acknowledges that trial judge followed and applied the law as it currently stands. However, on appeal she will be asking this court to change the law as stated in Moore-McFarlane and, instead, to adopt a rule of automatic exclusion of statements made, but not recorded, following an earlier videotaped statement given by a person.

[24] In response, the Crown points out that as recently as the case of R. v. Williams, 2014 ONCA 431, 313 C.C.C. (3d) 51, at paras. 43-44, this court applied the principle stated in Moore-McFarlane that there is no absolute rule requiring the police to record an accused’s statements.

[25] It is certainly open to Ms. Luckese to ask this court to reconsider and change the principle stated in Moore-McFarlane. But, in the absence of any prior suggestion by this court that it is open to reconsidering the principle in an appropriate case, I cannot treat this ground of appeal as a strong one for the purposes of this application.

[26] In sum, both grounds of appeal advanced by Ms. Luckese to challenge the trial judge’s finding that she assaulted Duy-An are not frivolous, in the sense that they are arguable, but they are not strong grounds of appeal.

Causation

[27] In respect of the trial judge’s conclusion that Ms. Luckese’s delay in seeking emergency medical care for Duy-An was a significant contributing cause of her death, the appellant submits that the trial judge misapprehended the evidence given by Dr. Abhaya Kulkarni, both in his expert report and in his viva voce testimony at trial. Ms. Luckese submits that the Crown did not prove beyond a reasonable doubt that the delay in seeking medical care for Duy-An was a significant contributing cause of her death.

[28] The Crown did not make any responding submissions on this point.

[29] The bail application record does not contain Dr. Kulkarni’s report or the transcripts of his evidence at trial. I therefore cannot review the doctor’s evidence in its entirety. Given those limitations of the record before me, it is not possible to assess the strength or weakness of this ground of appeal.

Conclusion

[30] The grounds of appeal advanced by Ms. Luckese in respect of the finding of assault by her on Duy-An are arguable, but not strong. I am unable to assess the ground of appeal concerning the causation issue. Given the seriousness of the offence for which the trial judge convicted Ms. Luckese, this is not a case where strong grounds of appeal exist that would favour the reviewability factor in the Farinaccianalysis.

DISPOSITION

[31] The offence for which Ms. Luckese was convicted is a most serious one. A lengthy term of imprisonment has been imposed. Her grounds of appeal are not strong, based on the record before me. Consequently, I conclude that Ms. Luckese has not demonstrated that her detention is not necessary in the public interest.

[32] Accordingly, I dismiss the application of Ms. Luckese for bail pending appeal.

“David Brown J.A.”