



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 deceaseds
    wrist.

A.

Background

[2]

The deceased was the appellants 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 appellants 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
    deceaseds wrist and there was a momentary struggle. Within seconds, the
    appellant grabbed the gun from the passengers 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 deceaseds body, including the wrist
    area and observed no visible injuries.

[6]

While some eyewitnesses supported the appellants evidence that the
    deceased approached the appellants 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 appellants 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 appellants 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
    appellants 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 Crowns position that the appellant shot his brother to settle a score.

[10]

In summarizing, the trial judge said,
    [i]f [the appellants] 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 appellants 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 appellants claim that he grabbed the deceaseds 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 deceaseds 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 deceaseds 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 deceaseds 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 doesnt mean the
    Crown wont 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 deceaseds 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 drivers 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, youll 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, youre 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 judges charge was given, the Crown raised a
    concern about defence counsels 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
    counsels evidence was not accurate.

[19]

In response to the Crowns 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 appellants 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 deceaseds 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 judges error is significant
    because the jury may have used the evidence of lack of bruising to reject the
    appellants 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 appellants
    submissions on this point for three reasons.

[23]

First, considering the closing
    addresses of counsel and the whole of the trial judges 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 counsels
    having raised the instantaneous death issue. On our reading of the Crowns
    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 judges 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 judges 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 deceaseds 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 judges instructions to the jury were fair and
    complete: see
R. v. Jacquard
, [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 Crowns question concerning whether any bruising was found on the
    deceaseds 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 judges 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 judges 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.


