Court of Appeal for Ontario
Date: 2017-06-26 Docket: C58843
Judges: Strathy C.J.O., Benotto and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
David Bye Appellant
Counsel
Timothy E. Breen, for the appellant
Shawn Porter, for the respondent
Heard: June 20, 2017
On appeal from the conviction entered by Justice J.R. McIsaac of the Superior Court of Justice, sitting with a jury, dated October 17, 2013.
Reasons for Decision
Facts
[1] The appellant, David Bye, and Robin Browett, were cellmates at the Central North Correctional Centre. On December 13, 2011, the unit was on lockdown. The two inmates had been confined to cell 10 for more than 24 hours. As corrections officers began a cell by cell search of the unit for contraband, they began with the cell next to the appellant's. While performing that search, they were summoned to cell 10 by the appellant, who was yelling that Mr. Browett had "passed out". When they entered the cell, they discovered the appellant holding Mr. Browett, who was lying on the floor and shaking, with obvious head trauma. Mr. Browett was transported to hospital and underwent surgery to relieve pressure caused by a subdural hemorrhage. He had a large skull fracture on the right side of his head and a small contusion on the opposite side of his brain, attributed to the brain bouncing against the opposite side of the skull. The surgeon who performed the surgery was of the opinion that a significant amount of force would be required to cause such a fracture, and although such an injury could conceivably result from falling, it was unlikely that a single fall would result in the injuries observed.
[2] The appellant denied assaulting Mr. Browett. Mr. Browett, who was conscious before being transported to hospital, also denied being assaulted.
Issues on Appeal
[3] The appellant was convicted by a jury of aggravated assault. He appeals his conviction on the basis that the trial judge made the following errors:
admitting expert evidence on the identification of footwear impressions on Mr. Browett's face, and failing to caution the jury on the use of that evidence;
failing to adequately instruct the jury on the use of inconsistencies in the appellant's statements as evidence of guilt;
not providing a proper response to the jury's request for a legal definition of reasonable doubt.
For the reasons set out below, we do not agree that the trial judge erred, and would dismiss the appeal.
Analysis
(1) Admissibility of Expert Evidence
[4] John Norman, a civilian employee of the O.P.P, was qualified to give expert opinion evidence "in relation to footwear examination and comparison". He addressed two issues: (1) whether there was evidence of footwear impressions on Mr. Browett's face, and (2) whether shoes located in the cell could be identified as the source of the impression. From his review of photographs of Mr. Browett's face, Mr. Norman concluded that the pattern of bruising could be footwear impressions. He also concluded that he could not rule out one of Mr. Browett's shoes found in the cell as the cause of the impressions on Mr. Browett's face.
[5] The trial judge admitted the evidence and, in his charge to the jury, characterized Mr. Norman's findings as "inconclusive and, as such, may not be of any assistance in resolving this case."
[6] The appellant objected to the admission of this expert evidence on the basis that it failed to meet the requirements of logical and legal relevance, in part, because the photograph from which Mr. Norman worked was taken four days after Mr. Browett's admission to hospital, and because there was no evidence of the effect of surgery on the appearance of Mr. Browett's face. We disagree. A visible pattern of bruising was evident in the photographs.
[7] Neither are we persuaded by the appellant's submission that Mr. Norman's opinion was so uncertain that it was legally irrelevant. The evidence was inconclusive, but given that the event took place in a prison cell, with a small number of possible causes, the evidence that Mr. Browett's injuries were consistent with having been struck in the head by a shoe, was legally relevant.
[8] We also reject the argument that Mr. Norman's evidence was so prejudicial that if it was admitted, it required a much stronger caution to the jury about its limited relevance. The trial judge's charge to the jury tracked the wording of Laskin J.A. in R. v. Ferguson (1999), 142 C.C.C. (3d) 353 at para 67 approved by the Supreme Court at (2001) 2001 SCC 6, 152 C.C.C. (3d) 95. In addition, the appellant's submission is nearly self-refuting. He could plausibly argue that the evidence was so uncertain as to be useless (a conclusion that the trial judge left open to the jury), or that the evidence was so powerful as to be dispositive. He cannot argue both.
(2) Charge to the Jury: After-the-Fact Conduct
[9] After initially summoning the corrections officers, the appellant made four statements concerning what happened. Although the statements differ in detail of what the appellant was doing at the time of Mr. Browett's injury, where he was in the cell, and whether he witnessed Mr. Browett fall or merely heard him fall, counsel for the appellant stresses their consistency: all of his accounts have Mr. Browett falling to the ground and striking his head while the appellant was otherwise occupied.
[10] The appellant argues that the inconsistencies among his various after-the-fact statements were not sufficiently material to support an inference of fabrication, and thus of guilt. He argues in the alternative that if the statements were capable of supporting an inference of guilt, the charge to the jury was inadequate, as it failed to consider innocent explanations for the appellant's false statements such as, for example, that he was motivated by desire to conceal his efforts to destroy contraband, rather than by his desire to conceal his involvement with an assault.
[11] Again, we do not accept this submission. Contradictory exculpatory statements of an accused may constitute independent evidence of fabrication: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d), at para. 288. Additionally, it was open to the jury to conclude from the surrounding circumstances that the statements were fabrications. The repeated assertion that Mr. Browett fell in his cell was not supported by the medical evidence and was simply not believable. The timing of the appellant raising the alarm was suspect: it is suspicious that Mr. Browett would have fallen immediately before the cell was to be searched, particularly given that corrections officers were in the next cell at the time and heard nothing.
[12] Additionally, in this case it is significant that the appellant's trial counsel made no objection to the charge to the jury with respect to the four statements. That was a tactical decision. The appellant's trial counsel stressed the consistency and truth of the appellant's statements that he did not assault Mr. Browett. It would not have served the appellant's purpose for the trial judge to have drawn further attention to the ways in which the appellant's statements diverged from each other.
(3) Jury Re-charge on Reasonable Doubt
[13] The appellant argues that the trial judge erred when responding to one of the jury's questions during deliberations. The question asked the judge to "Please define reasonable doubt as defined by the law." The trial judge responded by re-reading his charge on reasonable doubt. Although asked by the appellant to do so, he did not also include an instruction on the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. A W(D) instruction had been included in the main charge.
[14] Again, we see no merit in this submission. This court has held that although it is preferable in many circumstances to include a renewed W(D) instruction in response to a jury question about standard of proof, it is not strictly necessary in response to a question about the meaning of reasonable doubt, standing alone from any question about credibility: R. v. M.C.M. (2003), 176 C.C.C. (3d) 263, at para. 45; R. v. T.(M.), 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 117, 124.
Disposition
[15] The appeal is dismissed.
"G.R. Strathy C.J.O."
"M.L. Benotto J.A."
"B.W. Miller J.A."