Court of Appeal for Ontario

Date: April 11, 2018

Docket: C62011 & C62548

Justices: Sharpe, Pepall and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Courtney Lewis and Aaron Lewis Appellants

Counsel

Michael Dineen, for the appellant Courtney Lewis

Eric Neubauer, for the appellant Aaron Lewis

Peter Fraser, for the respondent

Heard: February 23, 2018

On appeal from the convictions entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on November 3, 2015.

Sharpe J.A.:

[1] Ryan Turcotte was attacked by a group of men in a parking lot in Barrie. He suffered a severe brain injury. Both appellants conceded that they were present in the parking lot when the assault occurred. The central issue was whether they participated in the assault. Both were convicted by the jury of aggravated assault. They appeal arguing that the trial judge made several errors in her instructions to the jury in relation to eyewitness identification evidence, aiding and abetting, the right of the jury to ask questions, the definition of "bodily harm", and self-defence.

[2] For the following reasons, I would allow the appeals and order a new trial.

A. Facts

[3] On June 25, 2012, Ryan Turcotte attended a bar in Muskoka with his friend Kiki Mukendi. The bar operated a shuttle bus that transported patrons from Barrie to the bar and then back to Barrie at the end of the night. In the early morning hours of June 26, 2012, Turcotte and Mukendi took the bus back to Barrie. The appellant Aaron Lewis was also on board. The bus driver was David Ribble and the security guard was Ryan Zaroski.

[4] On the ride back to Barrie, there was a dispute between Turcotte and Aaron. Aaron called his cousin, the appellant Courtney Lewis. He told Courtney to meet him at the parking lot as he was concerned about a possible altercation upon arrival. Courtney went to the parking lot.

[5] Turcotte was the first one to get off the bus when it arrived in Barrie. Shortly thereafter he was assaulted by a group of three or four men, fell to the ground and suffered a serious brain injury. The issue at trial was whether either or both Aaron and Courtney participated in the assault.

[6] At trial, the various witnesses provided evidence that frequently differed on key issues. In brief, their evidence was as follows. Mukendi testified that he heard Aaron say he was going to "tak[e] this guy out". Turcotte was approached by Aaron, Courtney and another male. Mukendi testified that both Aaron and Courtney punched Turcotte. Turcotte fell to the ground and was knocked unconscious. Aaron and Courtney fled. Mukendi testified that at the time of the assault, Aaron was wearing a white shirt. Mukendi stated that he was familiar with Aaron prior to the incident.

[7] Zaroski, the security guard, testified that he saw Courtney in the parking lot. Aaron and Courtney briefly conferred and then approached Turcotte with 2-3 other males. Aaron shoved Turcotte and Courtney punched him. Turcotte's hands were raised in a non-threatening manner. There were a couple more punches and Turcotte fell to the ground and appeared to be unconscious. The assailants fled the scene. Zaroski testified that at the time of the assault Aaron was wearing a white shirt. Zaroski deposed that he was vaguely familiar with Aaron prior to the incident. He testified that after the incident he heard someone implicate Aaron in the assault, looked Aaron up on Facebook and confirmed that he was on the bus as well as one of the assailants.

[8] Ribble, the bus driver, saw Turcotte get attacked within moments of leaving the bus. Ribble was unable to identify any of the attackers. He was unable to identify either Aaron or Courtney as among the assailants. He testified that Aaron was wearing a black shirt.

[9] Turcotte had been unable to recall any details about the attack up to the time of the trial. However, he testified that in the lead-up to the trial, he touched his head while having a shower, and recalled the incident. His trial testimony was the first time he revealed he had recovered any memory of the assault. He testified that a group of individuals, including Aaron and Courtney, assaulted him on the night in question.

[10] Courtney testified that he approached the bus and asked who had a problem with his family. He swore that Turcotte grabbed him by the shirt. Courtney then administered what he described as two punches of measured force in self-defence. Turcotte, still standing, released him and moved away. According to Courtney, at that point, a group of unidentified males attacked Turcotte. Neither he nor Aaron were involved in the attack.

[11] A video was taken of the altercation by an unknown individual. It is 39 seconds in length. It shows Turcotte being assaulted by three or four individuals who are difficult to make out. Two are wearing black shirts and one is wearing a long-sleeved white shirt. There is also an individual in the video wearing a short-sleeved white shirt who was not involved in the assault. Courtney testified that Aaron is the individual in the short-sleeved white shirt – the one not involved in the assault.

B. Issues

[12] Aaron raises the following issues:

1. Did the trial judge err in her jury instruction on eyewitness identification?
2. Did the trial judge err in her instructions on aiding and abetting?
3. Did the trial judge err by deterring questions from the jury?

[13] Courtney adopts Aaron's position on issue 1 and raises the following additional issues:

4. Did the trial judge err by failing to define "bodily harm"?
5. Did the trial judge reverse the burden of proof on self-defence?

C. Analysis

(1) Identification Evidence

[14] I agree with the submission that on the facts of this case, a caution regarding eyewitness identification evidence was required. While both Aaron and Courtney admitted to being at the parking lot at the time of the assault, resolution of the central issue of whether or not they participated in the assault required consideration of the eyewitness evidence of Turcotte, Mukendi and Zaroski identifying them as perpetrators. The trial judge recognized the need for an instruction on the dangers of eyewitness identification evidence and instructed the jury accordingly. The issue is whether her instruction was adequate in the circumstance of this case.

[15] For the following reasons, I conclude that it was not.

[16] The trial judge's eyewitness identification instruction could best be described as generic. She reviewed the evidence of each witness and gave a general caution relating to eyewitness identification. However, she failed to direct the jury's attention to the specific frailties posed by that evidence.

[17] The rationale for cautioning juries on the dangers posed by eye-witness identification evidence was recently explained by this court in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29:

Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person.

[18] As this court held in R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 79, and reiterated in many other cases, the trial judge must convey to the jury the judicial experience that eye-witness evidence poses serious dangers. The trial judge must identify for the jury "any specific weaknesses" in the eyewitness identification evidence and warn the jury not only of the general dangers of identification evidence, but also of the specific dangers arising in the circumstances of the particular case. In my view, the eyewitness identification evidence in this case presented features that called for a specific and focussed caution.

[19] In his argument, Mr. Neubauer placed considerable emphasis on the lack of a specific caution regarding the in-dock identifications made by Turcotte, Zaroski and Mukendi. The Crown contends that this submission overstates the significance of the in-dock identifications in this case. It was conceded that Aaron was on the bus with those three witnesses and that both appellants were at the parking lot when Turcotte was assaulted. The issue was whether the appellants were perpetrators of the assault.

[20] I would not give effect to the argument that the trial judge erred by failing to caution the jury about Mukendi's eye-witness identification. It was conceded that Mukendi knew Courtney Lewis to avoid the bad character evidence that would emerge from having Mukendi explain how he knew Courtney. It was also conceded that Mukendi knew Aaron "from around Barrie". Aaron's position at trial was not that Mukendi was mistaken in identifying him as one of the attackers but that he was lying and Aaron's trial counsel resisted the Crown's submission that Mukendi should be included in the eye-witness caution.

[21] However, with respect to both Turcotte and Zaroski, when considered together with other weaknesses in their identification evidence, I agree that the lack of a more specific in-dock warning was problematic.

[22] The proposition urged by the Crown that eye-witness observation of an accused actually committing the actus reus does not require a caution was rejected by this court in R. v. Virgo, 2016 ONCA 792, at para. 11:

In this case, the question is not whether the witness observed the appellant at the bar on the night in question. Rather, it is whether the witness observed the appellant thrusting a knife towards him. Both are questions of identification.

[23] This court has frequently pointed to the dangers posed by in-dock identifications: See R. v. Jack, 2013 ONCA 80, at para. 17: "the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight."

[24] Turcotte's identification was the product of his sudden claim of recovered memory for the first time at trial. The trial judge recited how Turcotte claimed to have recalled the assault over time, years after it occurred, but she failed to bring to the jury's attention the dangers posed by that evidence. While recovered memory evidence is admissible, in the circumstances of this case, the jury should have been cautioned regarding its reliability: R. v. Kliman (1996), 107 C.C.C. (3d) 549 (B.C.C.A.); R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.).

[25] In my view, the jury should have been specifically cautioned about the dangers posed by the combined effect of Turcotte's recovered memory and in-dock identification of Aaron as a perpetrator of the assault. The Crown points out that the trial Crown did not place significant reliance on Turcotte's evidence and told the jury they could convict without it. However, it remains that Turcotte's evidence was before the jury. Given the combination of the dual dangers it posed, a specific caution was called for.

[26] I agree with Aaron's submission with respect to Zaroski that hearing someone has been involved in an incident and then looking for and finding their image could taint the subsequent identification of that person. The trial judge recited how Zaroski had been told that Aaron was one of the attackers and how he searched for and found Aaron's photo on Facebook. She did not, however, accept trial counsel's submission that a specific instruction pointing out the dangers of tainting was required. The combination of Zaroski's in-dock and prior arguably tainted identification posed significant risks and the trial judge should have instructed the jury accordingly.

(2) Aiding and Abetting

[27] In her initial charge, the trial judge did not instruct the jury that Aaron could be found liable as an aider or abettor. The Crown objected and in her re-charge, the trial judge instructed the jury that they should consider whether Aaron aided or abetted Courtney. However, she simply left this possibility open without explaining what would amount to aiding and abetting in the circumstances of this case. Trial counsel for Courtney Lewis resisted the Crown's submission that a detailed review of the evidence supporting aiding and abetting should be given at this point in the trial. Aaron Lewis's trial counsel remained silent on the issue.

[28] Despite trial counsel's position, it is my view that the trial judge erred in law by failing to provide adequate guidance to the jury on the evidence that was capable of supporting Aaron's liability as an aider or abettor. It is difficult to see how Aaron could be liable as an aider or abettor if he were not a member of the three or four person group that attacked Turcotte but the jury was not so instructed. There is a real risk that the jury could have thought that it was open to them to convict Aaron on the basis of this telephone call to Courtney and his presence at the parking lot at the time of the assault. The jury should have been told that a greater degree of participation in the assault was required.

(3) Questions from the Jury

[29] In her instructions, the trial judge told the jury to "not rush with asking the court questions when something first seems unclear. Discuss the matter among yourselves first and you may get an answer." The judge also instructed the jury that "questions to me must never reveal the content of your deliberations". On the other hand, the trial judge told the jury that "it is appropriate for you to ask questions of me if you need clarification of any parts of my instructions" and that they should "not attempt to figure out the law for yourselves" and that "[a]ny uncertainty in respect of uncertainty of [the law] is to be made known to me."

[30] Jury questions play a significant role in the decision-making process: R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 40. The impugned portions of the trial judge's instructions in this case are not found in standard jury charges and Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2015) advises, at p. 1269, that "nothing should be said expressly or by necessary implication to discourage questions during deliberations."

[31] In my view, the trial judge's comments were ill-advised and could well have discouraged the jury from asking questions. While not fatal standing alone, comments of this nature do create a risk of discouraging proper questions from the jury and therefore should be avoided.

(4) Bodily Harm

[32] The trial judge correctly instructed the jury that to prove aggravated assault, the Crown had to prove that the conduct "which caused the wound was conduct which any reasonable person must inevitably have realized would subject Ryan Turcotte to the risk of bodily harm." The trial judge further explained that the Crown did not have to prove that the accused meant to wound Turcotte but only that a reasonable person would realize that the force applied put Turcotte "at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that Ryan Turcotte suffered here." The trial judge did not otherwise define or explain what amounted to "bodily harm" in relation to the mental element of objective foresight. "Bodily harm" is defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46, as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

[33] In his evidence, Courtney admitted to hitting Turcotte with what he described as two measured blows that likely caused some bruising on Turcotte's face. Courtney's position is that those bruises were not sufficient to constitute bodily harm and that there is a risk that, in the absence of a clear instruction on the meaning of bodily harm, the jury could have convicted him on the basis of the two blows that he admitted delivering.

[34] Trial counsel raised this objection and the trial judge refused to give any further guidance to the jury.

[35] On appeal, the Crown argues that it was not relying on the two admitted blows as a basis for conviction. However, that position was only explained in the absence of the jury. The Crown also relies on the R. v. W.D., [1991] 1 S.C.R. 742, instruction to the effect that if the jury accepted Courtney's evidence, they should acquit him.

[36] I would give effect to Courtney's submission on this point. The jury should have been instructed on the meaning of bodily harm. In my view, in the absence of a definition of that term, there is a real risk that the jury could have convicted on the basis of the two admitted blows without proper consideration of whether, on the basis of those blows, Courtney would have objective foresight of harm that was "more than merely transient or trifling in nature". The general W.D. instruction does not provide an adequate answer to this specific deficiency in the charge.

(5) Self-Defence

[37] The trial judge gave a detailed and, for the most part, proper instruction in relation to Courtney's defence of self-defence under both ss. 34(1) and 37. With the exception of two passages, she correctly instructed the jury that the burden of proof rested with the Crown and that Courtney needed only to raise a reasonable doubt for the jury to acquit. However, in two passages, the trial judge reversed the burden of proof in relation to s. 37, stating:

If you are satisfied beyond a reasonable doubt that Courtney Lewis used the force to defend himself from an assault by Ryan Turcotte…

and

If are not satisfied beyond a reasonable doubt that Courtney Lewis used force to defend himself…Your consideration of self-defence would be at an end.

[38] No objection was taken to these passages by trial counsel. The Crown concedes that the trial judge erred, but argues that given the repeated instruction that the burden of proof remains on the Crown and the absence of any objection, the jury could not have been misled and that the curative proviso, s. 686(1)(b)(iii), should apply.

[39] If this error stood alone, we would agree with the Crown and apply the proviso. However, given our analysis of the other issues, the proviso has no application.

D. Disposition

[40] For these reasons I would allow the appeals, set aside the convictions and order a new trial.

Released: April 11, 2018

"Robert J. Sharpe J.A."

"I agree S.E. Pepall J.A."

"I agree Fairburn J.A."