COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Bruzzese, 2023 ONCA 300
DATE: 20230501
DOCKET: C70389
Feldman, Roberts and Coroza JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Anthony Bruzzese
Appellant
Andrew Furgiuele, for the appellant
Sunil S. Mathai, for the respondent
Heard: March 27, 2023
On appeal from the convictions entered by Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury, on October 15, 2021, and from the sentence imposed on January 28, 2022.
Roberts J.A.:
[1] The appellant appeals from his conviction for attempted murder in relation to the stabbing of the complainant, Andrew Manford. In the alternative, he seeks leave to appeal his eight-year custodial sentence.[^1]
[2] For the reasons that follow, I would allow the appellant’s conviction appeal and order a new trial. Given this disposition, I do not reach the appellant’s sentence appeal.
Background
[3] The following background is sufficient to ground my analysis of the issues on appeal.
[4] On September 2, 2018, the appellant and Mr. Manford met for the first time at a Shoeless Joe’s bar in Guelph. They left together and continued drinking at a Crabby Joe’s bar. There, they met Konrad Karcz. At Mr. Manford’s invitation, the three men went to Mr. Manford’s place and continued drinking. Mr. Karcz testified that the appellant provided cocaine for the three of them, but that Mr. Manford angered the appellant by consuming the lion’s share of the cocaine.
[5] Mr. Karcz testified that the appellant threatened to kill Mr. Manford at several points during the evening and that Mr. Karcz persuaded the appellant to leave. He said that Mr. Manford followed them to the nearby parking lot of a Food Basics store. According to Mr. Karcz, the appellant again threatened to kill Mr. Manford unless Mr. Karcz convinced him to go home. Mr. Karcz said that his efforts to persuade Mr. Manford to leave were unsuccessful, Mr. Manford pushed him away and the appellant then approached Mr. Manford. According to Mr. Karcz, the appellant handed him a knife and told him to kill Mr. Manford, but he refused and walked away. Mr. Karcz testified that the appellant took his knife back, and then made two stabbing motions with a knife towards Mr. Manford’s stomach. He fell to the ground. Mr. Karcz said the appellant then told him that he had stabbed Mr. Manford twice.
[6] The surveillance video from a nearby store showed that the appellant and Mr. Karcz left the Food Basics parking lot and shook hands before they went their separate ways. Neither went to Mr. Manford’s aid or called for help or the police. Fortunately, a passerby saw Mr. Manford and called for help, which saved his life.
[7] The clothing worn by the appellant and by Mr. Karcz was tested forensically for the presence of Mr. Manford’s DNA. The parties agreed to admit as agreed facts several expert reports involving forensic evidence.
[8] The first, consisting of DNA testing from the Centre for Forensic Science, showed that the blood stains on the appellant’s shirt that were sent for analysis did not contain any of Mr. Manford’s DNA, although Mr. Manford’s DNA could not be excluded from the blood stains on Mr. Karcz’ shirt. The second, the hospital report, included a toxicology test which stated that Mr. Manford’s urine was negative for cocaine.
[9] Mr. Karcz was the Crown’s principal witness on whose evidence the Crown’s case heavily depended. Mr. Manford had little recollection of the evening’s events and none of the stabbing. He did not testify that he heard the appellant make any threats. The appellant did not testify.
Issues
[10] The appellant submits that the trial judge made two reversible errors in his jury charge that caused trial unfairness that cannot be overcome by the application of the curative proviso, and so require a new trial:
i. The trial judge erred by taking away from the jury the defence position that the absence of Mr. Manford’s blood on the appellant’s clothing could give rise to a reasonable doubt as to the appellant’s guilt.
ii. The trial judge erred by failing to correct Crown counsel’s closing submission that the toxicology result that there was no cocaine in Mr. Manford’s urine could not be used to discount Mr. Karcz’s testimony.
[11] I consider each of these grounds in turn.
Analysis
(i) Standard of Review
[12] Trial judges are not held to a standard of perfection in their crafting of jury charges. On appellate review, a functional approach is taken to the substance of the charge by examining errors in the context of the evidence, the entire charge, and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 104; R. v. Nagy, 2023 ONCA 184, at para. 25. The question is whether the jury charge properly equipped the jurors to decide the case assigned to them: Hassanzada, at para. 105.
[13] However, this court may intervene where the trial judge errs in law in the jury charge, including where a trial judge does not address sufficiently prejudicial or significantly inaccurate statements made by Crown counsel, or provides an erroneous instruction on a point of law. Such errors may justify a new trial where they cause a “substantial wrong or miscarriage of justice”: see e.g., R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at paras. 38-39; R. v. P.C., 2015 ONCA 30, 321 C.C.C. (3d) 49, at paras. 44-50; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 66.
(ii) Did the trial judge err in law in his jury charge by removing from the jury’s consideration the defence argument that the absence of Mr. Manford’s DNA on the appellant’s clothing gave rise to a reasonable doubt?
[14] The thrust of the defence argument was that it was not the appellant, but Mr. Karcz, a disreputable witness whose clothing was stained with Mr. Manford’s blood, who stabbed Mr. Manford. In closing submissions, defence counsel invited the jury to infer from the absence of Mr. Manford’s blood on the appellant’s clothing that the appellant was not the stabber:
If Mr. Bruzzese were the stabber we would expect him to have some of Mr. Manford’s blood or DNA on his clothes. That there’s no evidence of any such DNA, that is strong circumstantial evidence that Mr. Bruzzese was not the stabber.
[15] There was no Crown objection to this defence submission. However, the trial judge, of his own motion, concluded that the inference was not available because there was no evidence one way or the other that Mr. Manford’s blood or DNA would necessarily have transferred to his assailant, and because there was no conclusive evidence that Mr. Manford’s blood or DNA was not present on the appellant’s clothing since his t-shirt was tested only in the spots where visible blood stains were identified.
[16] Over defence counsel’s objections, the trial judge told the jury at paragraph 171 of his charge that they could not draw the inference suggested by defence counsel in his closing submissions:
[Defence counsel] said to you that one would expect Mr. Bruzzese to have Mr. Manford’s DNA on his clothes. We have no evidence with respect to that one way or the other. We only have evidence of what was found. [Emphasis added.]
[17] The Crown argues that the trial judge was justified in correcting the defence submission because it invited the jury to speculate in the absence of blood splatter or other expert evidence. Accordingly, the trial judge correctly instructed the jury that there was no evidence one way or the other as to whether Mr. Manford’s stabbing would have resulted in the transfer of his DNA to his assailant’s clothing.
[18] I am not persuaded by Crown counsel’s argument. There was evidence that the appellant’s t-shirt underwent forensic testing, and Mr. Manford’s blood was not found on it. While the importance of the absence of forensic evidence may vary from one case to the next, as this court instructed in Hassanzada, at para. 72, counsel “are entitled to make submissions about the effect of absence of evidence of a forensic connection between an accused and the scene of a crime.”
[19] As Crown counsel fairly acknowledged, there could be no objection taken to the submission that invited the jury to treat the absence of DNA as giving rise to a reasonable doubt of the appellant’s guilt. Such a submission is based on the results of the forensic testing that Mr. Manford’s blood and DNA were not found on the appellant’s clothing and, as Crown counsel acknowledged, the permissible inference that the appellant had therefore not been exposed to Mr. Manford’s blood.
[20] Defence counsel’s submission must also be read in the context of the closing submissions as a whole. Defence counsel’s argument, in part, was that Mr. Karcz’ testimony that the appellant stabbed Mr. Manford was unreliable because it was contradicted by the physical evidence, including the presence of Mr. Manford’s blood on Mr. Karcz’ clothing, and the absence of Mr. Manford’s blood on the appellant’s clothing. As a result, I read defence counsel’s impugned submission as going no further than an argument that the absence of evidence of Mr. Manford’s blood on the appellant’s clothing gives rise to a reasonable doubt because, in light of Mr. Manford’s blood being found on Mr. Karcz’ clothing, it provides a reason to question Mr. Karcz’ testimony.
[21] However, even if the impugned defence submission could be read as an invitation to speculate as Crown counsel suggests, the trial judge’s instruction went too far. There is a real risk that the trial judge’s direction that “[w]e only have evidence of what was found” would have been understood by the jurors as an instruction that they were only to draw inferences giving rise to a reasonable doubt from facts that were in evidence, namely, that Mr. Karcz had Mr. Manford’s blood on his clothing, but not from the absence of any blood on the appellant’s clothing. This is incorrect in law.
[22] It is a well-established principle that the absence of evidence may raise a reasonable doubt about the guilt of an accused or contribute to a conclusion by the trier of fact that the case for the Crown falls short of the standard of proof the law demands: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 36-37; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R 320, at para. 39; R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at para. 33; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 38. This includes the absence of evidence of a forensic connection between a crime and an accused: Hassanzada, at paras. 68, 71; R. v. Tebo, 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116, at paras. 5-8, 12; R. v. Bero, 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545, at paras. 61-64.
[23] The trial judge’s direction therefore undercut the defence by precluding the jury from considering this path to reasonable doubt based on the absence of evidence.
[24] Crown counsel submits that the jury would have understood the trial judge’s direction in the context of the trial judge’s general instruction about a reasonable doubt arising from the evidence or the lack of evidence, in para. 69, as follows:
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
[25] The difficulty with this submission is that the trial judge did not tie the concept of reasonable doubt to the absence of forensic evidence linking the appellant to Mr. Manford. The charge must leave the jury with an understanding of how the evidence or lack of evidence relates to the issues that are left to the jury for their decision: R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 39; Villaroman, at para. 28. However, in light of the trial judge’s clear direction about only having evidence as to what was found, the absence of any connection in the charge between the absence of forensic evidence and the concept of reasonable doubt makes it highly unlikely that the jury would have understood that it was open to them to consider the significance of the absence of forensic evidence as raising a reasonable doubt. At best, the jury would have been confused.
[26] This was a material error. The submission that the absence of forensic evidence raised a reasonable doubt about the appellant’s guilt represented a major prong of the defence. In the context of the entire charge, the trial judge’s direction in paragraph 171 of the charge amounted to misdirection that warrants a new trial.
(iii) Did the trial judge err in law by failing to correct Crown counsel’s closing submission regarding the toxicology report?
[27] The parties submitted the evidence of Dr. Leigh Bishop, the Chief of Surgery at Guelph General Hospital, as an Agreed Statement of Fact. Dr. Bishop provided a summary of Mr. Manford’s physical condition while in the hospital. After stating Mr. Manford’s blood-alcohol level, Dr. Bishop noted that “a toxicology screen of Mr. Manford’s urine was negative for cocaine”.
[28] In his closing submissions, defence counsel noted that the “absence of cocaine from Mr. Manford’s system” was one of several “damning contradictions to assertions made by Mr. Karcz under oath”. It formed part of his argument that Mr. Karcz was an unreliable witness who was not telling the truth about Mr. Manford’s stabbing, because Mr. Karcz had stated that the three men had consumed cocaine.
[29] With respect to the toxicology evidence, the Crown’s closing submission was as follows:
The cocaine, because – my friend argues because of the urine screen done on Mr. Manford at the hospital, comes back negative for the cocaine, that that definitively means that Andrew Manford had not done cocaine. And I’m going to suggest to you that [there was] no expert evidence to buttress that position. Andrew Manford lost about half of his blood that night as a result of the stabbing. And the cocaine, if ingested, had to have been ingested – was – was ingested like two or three hours earlier. There’s no evidence that – that cocaine can make its way into your urine, but at the time of his screening, but I’m just putting it out there.
[30] Following the closing submissions, in the absence of the jury, the trial judge took issue with the Crown’s submission and asked her not to phrase her submissions as “I’ll just put that out there, or I think the evidence was. It worries a judge just exactly what you’re just throwing out there and what the evidence might be”. Defence counsel indicated he was concerned about this portion of the Crown’s submission and that he would like to consider his position.
[31] Neither the trial judge nor defence counsel revisited the issue. When summarizing the evidence in his charge, the trial judge told the jury that there was some conflicting evidence that the three men used cocaine on the night in question. He did not correct the Crown’s unsupported theory used to discredit the validity of the toxicology screen. Rather, in his summary of the Crown’s position in his charge, the trial judge repeated and thereby reinforced the Crown’s argument, stating that the Crown’s position was that: “Mr. Karcz should be accepted that the three used cocaine that night; the toxicology evidence is not such that it should discount Mr. Karcz’ evidence” (emphasis added).
[32] Crown counsel submits that while the trial Crown’s use of the words “I’m just putting it out there” were unfortunate, the submission caused no harm to the defence because the jury would have understood that these were just the Crown’s submissions and they were not bound to accept them. Moreover, the lack of objection by defence counsel undercuts any allegation of trial unfairness.
[33] I disagree. While they do not have an “inflexible obligation” to correct every misstatement by counsel, trial judges have a duty, independent from any objection or lack of objection by counsel, to redress any prejudice to an accused that is caused by the Crown’s closing submission to the jury that “contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn”: Rose, at para. 124; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 39; R. v. Jones, 2011 ONCA 584, 277 C.C.C. (3d) 143, at para. 38; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 201. Failure to do so amounts to an error of law: R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86, at p. 95; Clause, at para. 38. Moreover, there was no “tactical” or other advantage in defence counsel not pursuing his initially expressed concern about the Crown’s submissions.
[34] Though counsel are entitled to a “fair degree of latitude” in closing submissions to the jury, there are clear limits on Crown advocacy: R. v. Boudreau, 2012 ONCA 830, at para. 15. The Crown “must not misstate the facts or the law”, “invite the jury to engage in speculation or express personal opinions” about the evidence, or “advert to any unproven facts”: Boudreau, at para. 16; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para 107.
[35] Particularly, in this case, there was a real risk that the jury would have accepted the Crown’s scientific misstatements as scientific fact. Courts have rightfully been wary about the possibility that juries will uncritically accept purported scientific evidence placed before them: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] S.C.C.A. No. 125; Parliament v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 44, leave to appeal refused, [2021 S.C.C.A. No. 222]; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17. While this risk is stronger in the context of expert evidence, such a risk may also be present with purported scientific evidence inappropriately raised by the Crown, as the jury may still be more likely to defer to the apparent authority of the scientific misstatements when made by the Crown.
[36] Importantly, the toxicology report was part of the Crown’s case. It was an agreed fact. It was therefore not open to the Crown to try to resile in this way from its own evidence that constituted an admission. Further, there was absolutely no evidence to support the Crown’s improper attack on the toxicology screen or its results. The Crown’s statements about the meaning of the toxicology screen, elimination rates of cocaine, and the effects of blood loss on those rates and the screen results required expert evidence. It was not open to Crown counsel to state that it was up to defence to call this evidence that formed part of the Crown case; this amounted to a clear invitation to the jury to reverse the burden of proof. The onus was squarely on the Crown to fill in any gap.
[37] The trial judge’s summary of the Crown’s position on this issue exacerbated the Crown’s errors. There was no basis to state that the toxicology screen could not be used to discount Mr. Karcz’ evidence. The toxicology evidence clearly contradicted Mr. Karcz’ evidence that Mr. Manford used cocaine that evening. It would have been entirely speculative for the jury to conclude that there was cocaine in Mr. Manford’s system that did not appear on the toxicology report, that he had already eliminated the cocaine before his urine was tested, or that the toxicology report was erroneous.
[38] The discrepancy between the toxicology report and Mr. Karcz’s evidence was a major contradiction that should have been left to the jury as it could have seriously undermined Mr. Karcz’s evidence and the Crown’s suggested motive for the stabbing. The Crown’s case depended almost entirely on Mr. Karcz’s evidence. Without it, there was no connection between the appellant and the stabbing and there was no motive for the stabbing. Mr. Karcz’s testimonial trustworthiness and reliability were in serious doubt and subject to a strong Vetrovec warning by the trial judge. The serious discrepancy between the toxicology report and Mr. Karcz’s evidence could have resulted in the jury entirely or further discounting his evidence and leaving them with a reasonable doubt as to the appellant’s guilt.
[39] As a result, the trial judge’s failure to correct Crown counsel’s submissions and his uncritical reiteration of the Crown’s argument that the toxicology report should not be used to discount Mr. Karcz’s evidence when summarizing the Crown’s position were material legal errors that undermined the defence. A new trial is warranted.
(iv) Was there trial unfairness?
[40] Crown counsel submits that if the trial judge made errors in the charge, they did not create trial unfairness or cause a miscarriage of justice. The Crown asks that the curative proviso be applied.
[41] As I earlier explained, the trial judge’s errors were material, went to the main pillars of the defence, and therefore could likely have affected the outcome of the trial. They created trial unfairness by undercutting the main thrust of the defence. The Crown’s case was not overwhelming. Accordingly, it is not appropriate to apply the curative proviso.
Disposition
[42] I would allow the appeal and order a new trial.
Released: May 1, 2023. “K.F.”
“L.B. Roberts J.A.”
“I agree. K. Feldman J.A.”
“I agree. S. Coroza J.A.”
[^1]: The appellant’s conviction for possession of a dangerous weapon was stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.