COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2016 ONCA 546

DATE: 20160708

DOCKET: C59662

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Wright

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Greg Skerkowski, for the respondent

Heard: April 27, 2016

On appeal from the conviction entered on May 14, 2014 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Following a jury trial, the appellant was acquitted of first degree murder but convicted of manslaughter. He appeals his conviction and advances two issues on appeal.[^1] First, he submits that the trial judge erred in his instructions to the jury on self-defence. Second, he submits that, in the absence of expert evidence, the trial judge erred by inviting the jury to speculate or take improper judicial notice about the inferences to be drawn from a lack of bruising on the deceased’s wrist.

A. Background

[2] The deceased was the appellant’s brother. The appellant acknowledged at trial that he shot the deceased. As part of his defence, he led evidence of a longstanding acrimonious relationship between him and his brother, including evidence of multiple death threats made against him by the deceased. The major issues at trial included self-defence and provocation.

[3] According to the appellant, on the day of the shooting, the deceased went to the appellant’s in-laws’ home and threatened the appellant and his family. Later in the day, the appellant drove to a parking lot where he saw the deceased and several mutual friends leaving a pick-up soccer game. The appellant claimed he had not expected the deceased to be there, but when he saw him, he decided to confront him to convince the deceased to stop his threatening behaviour.

[4] The appellant kept a gun in his SUV for protection. According to the appellant, after arriving in the parking lot, he saw the deceased arm himself with a knife. The appellant got out of his SUV with his gun in his hand. A mutual friend intervened and persuaded the appellant to get back in the SUV. However, the deceased rushed at the SUV with the knife raised. According to the appellant, the deceased thrust the knife downwards at him through the open window of the SUV in an effort to stab him. The appellant grabbed the deceased’s wrist and there was a momentary struggle. Within seconds, the appellant grabbed the gun from the passenger’s seat and fired a single shot.

[5] The pathologist who conducted the autopsy testified at trial and confirmed that the deceased died from a single gunshot wound to the chest, which struck his heart, went through his liver and lodged itself in the back of his ribs, causing significant internal bleeding. Death ensued “in the span of seconds.” In response to questions from the Crown, the pathologist confirmed that he examined the extremities of the deceased’s body, including the wrist area and observed no visible injuries.

[6] While some eyewitnesses supported the appellant’s evidence that the deceased approached the appellant’s vehicle with the knife raised over his head, none could confirm that the deceased made a stabbing motion at the appellant inside the SUV. One eyewitness, the mutual friend who tried to de-escalate the situation, disputed the appellant’s claim that the deceased made a stabbing motion inside the SUV.

B. Discussion

(1) Jury instructions on self-defence

[7] The first issue raised by the appellant is that the trial judge erred in his instructions on self-defence by telling the jury that self-defence was not available to the appellant if “he was using the gun to injure [the deceased].” According to the appellant, in giving this instruction, the trial judge erred by improperly adding a requirement that, to qualify for self-defence, an accused must not have an intent to injure.

[8] We did not call on the Crown to respond to this issue. The appellant’s argument was premised on considering the impugned phrase in isolation and out of context.

[9] The trial judge used the impugned phrase in the section of his instructions explaining the requirement that the appellant’s actions had to be for the sole purpose of defending himself from the use of force. He explained the defence position that that was the case and the Crown’s position that the appellant shot his brother to settle a score.

[10] In summarizing, the trial judge said, “[i]f [the appellant’s] purpose in using the gun was solely to protect himself against force being used against him, the requirement of a defensive purpose would be met.” He then instructed the jury that if the appellant “was using the gun to injure [his brother], or to get even with him, or to settle a score with [him], the requirement that the force be used solely for the purpose of defending and protecting himself would not be met.”

[11] Read in context, we see no possibility that the jury would have interpreted the phrase as the appellant contends – that is, as meaning that self-defence would not be available simply because the appellant knew and intended that his actions would injure the deceased. Rather, the phrase properly conveyed the meaning that self-defence would not be available if the appellant’s use of force was for a purpose other than protecting himself.

(2) Jury instructions about lack of bruising

[12] The second issue raised by the appellant is that, in the absence of expert evidence, the trial judge erred by inviting the jury to speculate or take improper judicial notice about whether the appellant’s claim that he grabbed the deceased’s wrist would have caused bruising.

[13] As noted above, the Crown led evidence from the pathologist who conducted the autopsy of the deceased that he did not find any bruising on the deceased’s wrist. By the time the pathologist testified, the defence had made clear, through cross-examination of a previous witness, its position that the deceased attempted to stab the appellant while the appellant was sitting in his SUV. Although the pathologist confirmed he found no marks or bruising on the deceased’s wrist, neither the Crown nor the defence asked the pathologist whether bruising would be likely in the circumstances posited by the defence – that is, where the deceased was shot and killed very soon after the appellant claimed he grabbed the deceased’s wrist.

[14] Both the Crown and the defence spoke about this subject in their closing addresses to the jury.

[15] Defence counsel addressed the jury first. He approached the subject by reminding the jury that in his opening address the Crown told them “his case had little to do with CSI.” Defence counsel commented on another subject and then said, “that doesn’t mean the Crown won’t try to pull a little CSI on you.” Defence counsel cautioned the jury that the Crown would likely ask them to have an “Ah-ha” moment about the lack of bruising on the deceased’s wrist. However, he said there was one “little problem”: if the deceased “immediately dropped like a ragdoll because he was shot in the heart and it stopped pumping, how could there be bruising from blood being pumped into that area? How could there be bruising without blood flow?”

[16] In his closing address, Crown counsel at trial invited the jury to consider the amount of force used by the appellant during the encounter, which he said the appellant had described as “a kind of a fight for his life.” Crown counsel asked the jury to consider whether they would expect to see some kind injury in those circumstances.

[17] In the section of his jury instructions addressing whether the appellant believed on reasonable grounds that force was being used against him, the trial judge instructed the jury, in part, to consider the evidence of lack of bruising. However, he also told them no evidence had been led concerning whether bruising would be likely to ensue if events occurred in the manner described by the appellant and that they may not find the evidence of lack of bruising of much assistance. The impugned aspects of this instruction are underlined:

[The appellant] says that [the deceased] leaned in through the window, while at the same time making a downward stabbing motion with the knife in his right hand. [The appellant] says that he fell backwards in the driver’s seat as this happened, raised his left hand and grabbed the wrist of [the deceased]’s right arm to stop the stabbing motion.

In considering that evidence, you’ll want to take into account the size of the knife, and the blade, and it has been described to you. The fact that [the appellant] did not sustain any cuts to his arm, or otherwise, and that the pathologist who conducted the autopsy did not find any bruising or marks on the wrist or arm of [the deceased].

Now, no evidence was led as to whether the grabbing of [the deceased]’s wrist in those circumstances would likely produce bruising. So, it may well be that if the events took place as [the appellant] says they did, no bruising or marks would have been caused to [the deceased]. You may then find this aspect of the evidence does not assist you in deciding what actually happened. As with all matters of fact, you’re entitled to use your own common good sense and experience in deciding these matters. [Emphasis added.]

[18] During mid-charge discussions, but before this aspect of the trial judge’s charge was given, the Crown raised a concern about defence counsel’s closing, claiming that when defence counsel spoke about no blood flow leading to no bruising, defence counsel had effectively been giving medical evidence. Crown counsel also claimed that defence counsel’s “evidence” was not accurate.

[19] In response to the Crown’s submissions, the trial judge referred to his proposed instructions and said he did not know what an expert might have said about the point. However, he said he accepted that the appellant’s blood flow did not stop until after the gun was fired, and that that was some seconds after the grabbing. He said he did not know how quickly bruising appears and he was going to leave his instructions as they were. The defence made no comment and the Crown did not pursue the issue further.

[20] The appellant acknowledges that, in some circumstances, it may be open to a trier of fact to consider the likelihood of bruising as a matter of ordinary human experience and common sense. However, he argues that, in this case, because the deceased was killed soon after the appellant claims he grabbed the deceased’s wrist, expert evidence was necessary to assist the jury with the inferences that could be drawn from the lack of bruising and specifically concerning the likelihood that bruising would occur. He submits that the trial judge erred both in instructing the jury that they would want to consider the evidence concerning lack of bruising and in telling them they were entitled to use their common sense and experience to determine the matter.

[21] The appellant claims that the trial judge’s error is significant because the jury may have used the evidence of lack of bruising to reject the appellant’s claim of self-defence when there was no expert evidence to assist them with the likelihood that bruising would occur where the deceased was killed virtually instantaneously after being grabbed.

[22] We do not accept the appellant’s submissions on this point for three reasons.

[23] First, considering the closing addresses of counsel and the whole of the trial judge’s jury instructions, we see no realistic possibility that the jury would have drawn any inferences concerning whether the deceased suffered bruising after death.

[24] In this regard, we note that the Crown did not invite the jury to draw any inferences concerning whether bruising would have arisen after death. Rather, the Crown asked the jury to consider the amount of force the appellant used, and whether this amount of force would have caused bruising. Crown counsel said this in the context of defence counsel’s having raised the instantaneous death issue. On our reading of the Crown’s closing, the Crown did not invite the jury to make a finding concerning whether bruising would have arisen after death.

[25] As for the trial judge’s jury instructions, after telling the jury that they should consider the evidence of lack of bruising or marks, the trial judge cautioned them that no evidence had been called concerning the likelihood of bruising, and that “it may well be” that if the events took place as the appellant described no bruising or marks would occur. He then instructed the jury that the evidence of lack of bruising may not assist them in deciding what actually happened.

[26] Although the trial judge left it for the jury to determine whether the evidence concerning lack of bruising assisted them, his instruction was appropriate because in the context of the evidence it was open to the jury to consider whether bruising would likely have occurred during the grabbing as described by the appellant. Moreover, when these particular instructions are considered in the context of the standard cautions against speculation that appear in both the trial judge’s general instructions and in his instructions concerning circumstantial evidence, we see no realistic possibility the jury would have speculated about the likelihood of bruising after the deceased’s death.

[27] Second, experienced defence counsel did not raise the objection at trial that is now raised for the first time on appeal. Although not determinative, we take that into consideration in assessing whether the trial judge’s instructions to the jury were fair and complete: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, 113 CCC (3d) 1, at paras. 35-37; R. v. Bradey, 2015 ONCA 738, 331 C.C.C. (3d) 511, at para. 186.

[28] Third, in our view, it is clear that experienced defence counsel at trial made a tactical decision about how to respond to the evidence of lack of bruising. Having made clear the core of the defence position concerning how the appellant claimed events unfolded through cross-examination of earlier witnesses, defence counsel did not follow up on the Crown’s question concerning whether any bruising was found on the deceased’s wrist by asking the pathologist whether bruising would have been likely in circumstances where death ensued soon after an extremity was grabbed. Nor did he ask subsequently for leave to have the pathologist recalled so he could clarify this issue. Nonetheless, in his closing address to the jury, defence counsel suggested that bruising would be unlikely once blood flow had stopped and he invited the jury to consider whether the Crown was “pull[ing] a little CSI” on them.

[29] Having made this tactical choice about how to address the evidence of lack of bruising – and not having objected to the trial judge’s instruction – and in the absence of a fresh evidence application or a ground of appeal relating to incompetence of counsel – and in the light of our other conclusions – we fail to see any basis on which the appellant can now complain about the trial judge’s jury instructions.

Disposition

[30] Based on the foregoing reasons, the appeal is dismissed.

“Karen M. Weiler J.A.”

“Janet Simmons J.A.”

“Gloria Epstein J.A.”

[^1]: In his factum, counsel for the appellant raised three issues on appeal. At the oral hearing, counsel abandoned the third issue raised in his factum.