Court of Appeal for Ontario

Date: 2019-03-06

Docket: C62357

Judges: Sharpe, Benotto and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Tin Wai Hong Appellant

Counsel

Delmar Doucette and Angela Ruffo, for the appellant

Elise Nakelsky, for the respondent

Hearing and Appeal

Heard: February 4, 2019

On appeal from: The conviction entered on November 21, 2015, by Justice R. Cary Boswell of the Superior Court of Justice.

Decision

Sharpe J.A.:

Facts

[1] The appellant and his three co-accused, Nathaniel Cain, Mason Gillard-Gatza and Raphael Guerra, drove from Scarborough to Minden, Ontario where they committed a home invasion robbery. The appellant was the instigator of the robbery. The robbery took place at the home of Justin McKelvey, a man the appellant believed to be a marijuana trafficker in possession of both drugs and cash. Two men were present in the home, McKelvey and his friend Ryan Kennedy. During the robbery, Kennedy was killed having been struck twice on the top of his head with a baseball bat by Gillard-Gatza and in the jaw by the appellant with the butt of a pellet gun. McKelvey was seriously assaulted. The appellant and his three co-accused were all charged with first degree murder in the death of Kennedy and with attempted murder of McKelvey.

[2] The jury convicted the appellant of second degree murder in the death of Kennedy. He appeals arguing that there was insufficient evidence to support a finding that the blow to Kennedy's jaw was a significant contributing cause of death and that a statement by the trial Crown in his closing caused a miscarriage of justice.

[3] For the following reasons, I would dismiss the appeal.

Factual Background

[4] Upon arrival at Kennedy's house, the appellant, Gillard-Gatza and Cain, got out of the vehicle and entered the house with their faces concealed. The appellant was carrying a can of bear spray, Cain, duct tape and a plastic paddle he picked up outside the house, and Gillard-Gatza an aluminum baseball bat that he had brought to the robbery.

[5] Immediately upon entering the home, the appellant confronted McKelvey, said "This is a robbery" and punched McKelvey in the face. Kennedy started to move toward the appellant. Cain hit Kennedy on the arm or side with the plastic paddle and then grappled with him. Gillard-Gatza delivered two forceful blows to the top of Kennedy's head with the baseball bat. Kennedy stumbled and fell to the ground. Gillard-Gatza struck McKelvey two or three times on the back with the bat. The appellant demanded to know where the money and marijuana were hidden.

[6] At this point Kennedy was on the floor in a semi-conscious state making sounds described as "gurgling", "snoring" or "moaning". The appellant went looking for the money and the marijuana and when he returned, knocked over a water cooler that struck Kennedy on the head. Gillard-Gatza tried to duct tape Kennedy's hands but one arm was stiff. The appellant told Cain to get Kennedy to shut up. Cain struck Kennedy in the right side of his head between the ear and the crown with the butt end of a pellet gun. Kennedy kept making noises. The appellant then said that he would show Cain how to shut Kennedy up, took a golf-like swing with the pellet gun and struck Kennedy in the face with the butt of the gun. The blow broke Kennedy's jaw bilaterally and was sufficiently strong to crack open the barrel of the pellet gun. At that point, Kennedy stopped making any sounds or movements. The appellant then struck McKelvey about the head with his fists.

[7] Gillard-Gatza testified that he believed that the blows he delivered with the bat had killed the victim. However, he testified that he lacked the intention to kill or cause grievous bodily harm that he knew was likely to cause death.

[8] The pathologist's evidence was that the most likely cause of Kennedy's death was two blunt force blows to the dome or top of the victim's head. He testified that the sounds Kennedy made before the appellant struck him with the pellet gun were symptomatic of an unconscious person dying from brain damage. The pathologist testified that the victim also sustained a fractured jaw. While he could not exclude the impact that caused the broken jaw as a contributing cause to the brain injury, he thought it unlikely. He was not asked if the golf-swing blow could have accelerated Kennedy's death.

[9] The Crown's position at trial was that the murder was planned and deliberate in that the accused intended to rob McKelvey and leave no witnesses alive. The appellant, Gillard-Gatza, and Cain conceded their guilt for manslaughter and assault causing bodily harm. The three co-accused testified but the appellant did not.

[10] Guerra acted as the driver and he remained in the car. He testified that he knew nothing of any plan to commit robbery and that he had been duped into participating. The jury acquitted him of all charges.

[11] The jury acquitted Gillard-Gatza and Cain of murder but convicted them of manslaughter in the death of Kennedy. Similarly, the jury acquitted them of attempted murder but convicted them of assault causing bodily harm in relation to McKelvey.

[12] The jury convicted the appellant of second degree murder in the death of Kennedy. The jury acquitted the appellant of attempted murder but convicted him of assault causing bodily harm in relation to McKelvey.

Issues

[13] The appellant raises two grounds of appeal from the murder conviction.

1. The jury's finding that the appellant's acts were a significant contributing cause of Kennedy's death is unreasonable.

2. A statement made by the trial Crown in his closing address caused a miscarriage of justice.

Analysis

(1) Unreasonable Verdict

[14] At the trial crown's request, the trial judge did not instruct the jury that the appellant could be convicted of murder under s. 21(2) of the Criminal Code on the basis that he had formed an intention in common with Cain and Gillard-Gatza to commit robbery and knew that murder would be a probable consequence. This left three possible bases to convict the appellant of murder: first, under s. 21(1)(b) or (c), that he aided and abetted Cain or Gillard-Gatza; second, that he was a joint principal under s. 21(1)(a); or third, that he was a sole principal.

[15] I agree with the appellant that given the trial judge's instruction to the jury on aiding and abetting and liability as a joint principal, the jury's verdict of guilty of second degree murder must be assessed on the basis that the jury found him to be a sole principal.

[16] The trial judge instructed the jury that the appellant could only be convicted as an aider and abettor if the jury also convicted one of his co-accused of murder. As the jury acquitted the appellant's co-accused of murder and, as we must assume for the purposes of this appeal that the jury followed the trial judge's instruction, the jury could not have convicted the appellant as an aider and abettor.

[17] Similarly, the trial judge instructed the jury that the appellant could be convicted as a joint principal only if he had a common intention to commit murder with one of his co-accused. The acquittals of Cain and Gillard-Gatza can only be explained on the basis that the jury had a reasonable doubt that they had the requisite intent to commit murder. It follows that the jury could not have found that the appellant had a common intention with them to commit murder.

[18] The respondent Crown takes issue with the trial judge's instructions on liability on the basis of aiding and abetting or being a joint principal. The respondent argues that these instructions set the bar too high and that the appellant could have been convicted as an aider and abettor or joint principal even if his co-accused were acquitted. The respondent further submits that in the case of a joint attack, a common intention to commit murder is not required, nor is it necessary to prove that the accused's act was a significant contributing cause of death.

[19] I find it unnecessary to deal with these submissions. In my view, it is both possible and appropriate to decide this appeal on the basis that the jury did follow the trial judge's instructions and therefore must have convicted the appellant as a sole principal.

[20] The standard for setting aside a jury verdict as unreasonable is high. The question is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered": R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[21] The appellant's submission that the verdict was unreasonable centres on the pathologist's evidence that the likely cause of death was brain injury caused by the two blows to the top of Kennedy's head and that it is unlikely that the blow the appellant delivered to the side of Kennedy's jaw materially contributed to the brain injury.

[22] As the trial judge observed in his reasons for sentence, reported at 2016 ONSC 2654, it is almost certainly the case that the jury found that the golf-swing to Kennedy's face did accelerate and contribute significantly to Kennedy's death. He added that he agreed with that finding: paras. 26-28. We are, of course, not bound by the trial judge's sentencing reasons and I recognize that the trial judge was bound in his reasons for sentence "by the express and implied factual implications of the jury's verdict": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. We are, however, entitled to look at those reasons when assessing whether there is a basis for finding that the jury's verdict was reasonable: R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549 (Ont. C.A.), at paras. 6-11.

[23] In my view, it was open on the evidence for the jury to conclude that the blow struck by the appellant with the pellet gun was a significant contributing cause of death. The pathologist's evidence certainly supported the inference that before he was struck in the jaw with the pellet gun, Kennedy was dying. However, the noise he was making indicated that he was still alive. There is no doubt that if the appellant's blow accelerated Kennedy's death, that blow would meet the legal definition of a significant cause of death: R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 81. Before the appellant struck Kennedy with the pellet gun, Kennedy was alive, moving and making noises. After the blow was delivered, Kennedy went silent and stopped moving. The jury was entitled to take that evidence into account when considering whether the golf-swing blow had accelerated Kennedy's death. The pathologist was not asked whether the golf-swing blow could have accelerated Kennedy's death. Accordingly, I do not accept the contention that the pathologist's evidence makes the jury's verdict unreasonable. Moreover, even if the jury made a finding contrary to the pathologist's evidence, as stated in R. v. Smithers, [1978] 1 S.C.R. 506, at p. 518, "The issue of causation is for the jury and not the experts." Smithers establishes that the jury is entitled to decide how much weight to give to expert evidence and to accept or reject both expert and lay evidence: p. 518.

[24] I add that the reasonableness of the jury's finding that the appellant's act of striking Kennedy in the jaw with the pellet rifle was a significant cause of Kennedy's death must be assessed in the light of the entire record: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6. The appellant was the instigator and leader of the home invasion. He unleashed the pattern of violence against the occupants of the house as soon as he entered the house. He was an active participant in the vicious assault on Kennedy that followed. He urged Cain to make Kennedy "shut up" as Kennedy was lying on the floor helpless and moaning. He then struck Kennedy with a vicious blow that finally did silence him.

[25] Finally, I do not accept the appellant's submission that the decision of this court in R. v. Talbot governs the outcome of this appeal. Talbot was a Crown appeal from a jury acquittal on a charge of murder. During an altercation with the victim, the appellant struck the victim with a single punch. The victim hit his head on the pavement when he fell to the ground. The appellant then kicked the victim in the head. The pathologist's evidence was that the cause of death was the blunt force injury to the back of the victim's head resulting from the fall to the ground following the single punch. He testified that it was possible but unlikely that the kick was a contributing cause of death.

[26] The appellant relied on self-defence. The trial judge instructed the jury that if they found the kick was a cause or had contributed to the death in a material way, they would have to assess the appellant's state of mind in relation to self-defence at the time he delivered the kick.

[27] The Crown's central argument on appeal was that the trial judge should have instructed the jury that as a matter of law the punch and the kick were both part of one single transaction. Doherty J.A., writing for the court, accepted that submission but concluded that it made no difference as it was clear from the questions the jury asked and the verdict that the jury found that the punch was the sole cause of death.

[28] The appellant relies upon Doherty J.A.'s added statement that, in any event, if the Crown sought to rely on the kick as a contributing cause of death, it was incumbent on the Crown to prove that fact and that, without some supporting medical evidence, the jury would not have been able to conclude that the kick was a cause of death: Talbot, at paras. 82-83. In my view, that statement is nothing more than an obiter observation about the facts of Talbot. Talbot does not establish that as a matter of law, and contrary to Smithers, that a jury can only find causation where there is medical evidence to support such a finding. As Doherty J.A. himself stated in R. v. Pocock, 2015 ONCA 212, 19 C.R. (7th) 60, at para. 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."

[29] Moreover, the facts of this case are distinguishable from those of Talbot. In Talbot, the punch had already rendered the victim motionless by the time of the kick: para. 17. The lay evidence was only capable of establishing that the kick was strong but not that it had any effect on the victim's movements or breathing: Talbot, at para. 83. As Doherty J.A. explained in Pocock, Talbot is thus best seen as a case in which the medical evidence was speculative and there was no non-medical evidence that could show a causal link between the kick and the victim's death: para. 20. As I have noted, in this case, there is lay evidence of a perceptible change in the victim's behaviour to support an inference that the golf-swing blow accelerated the victim's death. No such evidence was presented in Talbot. Accordingly, I would adopt the remarks of Doherty J.A. in Pocock as applicable to the case at bar: "[I]n this case, unlike Talbot, there was non-medical evidence reasonably capable of linking the effects of the appellant's attack on [the victim] to [the victim's] death": para. 20.

[30] For these reasons, I am satisfied that the jury's finding that the appellant was guilty of second degree murder was not unreasonable and, accordingly, I would not give effect to this ground of appeal.

(2) Improper Crown Closing

[31] The appellant submits that in his closing address, the trial Crown suggested that there was some evidence that the golf-swing blow with the pellet gun might have been the cause of the injuries to the top of Kennedy's head. The appellant moved for a mistrial and during argument on that motion, with the jury not present, the trial Crown disavowed any such statement. In reasons reported at 2015 ONSC 6904, the trial judge refused to grant a mistrial, ruling that the matter could be dealt with by way of an instruction to the jury: at paras. 120-121. The trial judge initially told the jury that while Crown counsel had suggested that the golf-swing blow could have been the cause of both the injury to the jaw and the injury to the top of the victim's head, the pathologist had not been asked about that and that: "Ultimately, it will be for you to determine, if you can, the mechanism for the injuries inflicted on Mr. Kennedy." He subsequently corrected that instruction, and told the jury that Crown counsel "did not specifically suggest" that the appellant's golf-swing had caused one of the injuries to the top of the head, that the pathologist had not expressed an opinion and that: "It will ultimately be up to you to determine the mechanism by which any injuries sustained by Mr. Kennedy were caused."

[32] The appellant complains that these instructions fell short of what was required. The trial judge did not admonish the trial Crown and he failed to instruct the jury explicitly that there was no evidence to support the trial Crown's statement that the appellant's golf-swing with the pellet gun might have been the cause of the injuries to the top of Kennedy's head.

[33] Inappropriate cross-examination or improper remarks in closing argument by Crown counsel will result in a miscarriage of justice where they prejudice the accused's defence or bring the administration of justice into disrepute: R. v. R. (A.J.) (1994), 20 O.R. (3d) 405 (C.A.), at p. 412; R. v. Figueroa, 2016 ONCA 645, at paras. 89-94, leave to appeal dismissed, [2017] S.C.C.A. No. 1. The trial judge is best placed to determine the extent of the impact and influence of any improper remarks: R. v. Munroe (1995), 96 C.C.C. (3d) 431 (Ont. C.A.), at p. 452, aff'd , [1995] 4 S.C.R. 53.

[34] I am not persuaded that the impugned portion of the trial Crown's closing address meets that standard. While I agree that the trial judge's correction was less than complete, the issue of whether the appellant struck Kennedy on the top of his head with the pellet gun was fully vetted by the appellant's trial counsel before the jury. I see no realistic possibility that the jury's decision to convict the appellant of second degree murder was materially influenced by the impugned statement. In fact, the trial Crown told the jury that it did not have to decide whether or not the appellant struck Kennedy on the top of his head and instead stressed the lay evidence that the golf-swing left Kennedy "silent and motionless." As I have explained in relation to the first ground of appeal, it is almost certainly the case that the jury found that the appellant's golf-swing to the jaw accelerated Kennedy's death. I do not accept the submission that the jury convicted the appellant because the jury found he delivered one of the blows to the top of Kennedy's head.

[35] Accordingly, I do not agree that, to the extent there was a misstatement in the Crown's closing, it contributed to a miscarriage of justice and I therefore reject this ground of appeal.

Disposition

[36] For these reasons, I would dismiss the appeal from conviction.

Release: March 6, 2019

"Robert J. Sharpe J.A."

"I agree. M.L. Benotto J.A."

"I agree. David Brown J.A."