



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Smith,









2010 BCCA 35




Date: 20100125

Docket: CA034307

Between:

Regina

Respondent



And

Ricky John Smith

Appellant








Before:



The Honourable Madam Justice Rowles





The Honourable Madam Justice Kirkpatrick





The Honourable Madam Justice Neilson




On appeal from: 
Supreme Court of British Columbia, March 22, 2006
(Prince George Docket No. 19616-3)




Counsel for the Appellant:



R. Fowler





Counsel for the Respondent:



O. Kuzma





Place and Date of Hearing:



Vancouver, British
  Columbia





September
  15, 2009





Place and Date of Judgment:



Vancouver, British
  Columbia





January 25, 2010









Written Reasons by
:





The Honourable Madam Justice Neilson





Concurred in by:





The Honourable Madam Justice Rowles





The Honourable Madam Justice Kirkpatrick






Reasons for Judgment of the
Honourable Madam Justice Neilson:

INTRODUCTION

[1]

The appellant appeals his conviction for second degree murder on March
22, 2006, following a trial with his co-accused, Cameron Miller, before a judge
and jury. The jury found Mr. Miller, who was also charged with second degree
murder, guilty of manslaughter.

[2]

The charges arose from an altercation between the appellant, Mr. Miller,
and the victim, Brent Melanson, on March 30, 2004, in which the appellant admitted
using a machete. In the course of the altercation Mr. Melanson suffered six
wounds one of which, an injury to the right side of his neck, was fatal.

[3]

At trial, a central issue was whether the appellant inflicted the fatal
wound with his machete, or whether it was caused by a knife wielded by Mr.
Miller. There was no direct evidence that Mr. Miller had a knife. The evidence
related to that issue came primarily from two pathologists who testified to the
characteristics of Mr. Melansons wounds and their likely cause. Dr.
McNaughton, who performed the autopsy on Mr. Melanson, testified for the Crown and
said that all six injuries could have been caused by a machete. Dr. Rice, who
testified for the appellant, disagreed and opined that several of the injuries,
notably the fatal incision to the neck, were not caused by the appellants
machete.

[4]

The sole issue on the appeal is the fairness of the trial judges
instructions to the jury about the expert evidence of Dr. Rice. The appellant
maintains that the judge unfairly and inaccurately summarized her evidence, and
inappropriately commented on and emphasized the fact that she had not directly
observed Mr. Melansons wounds. He says this demeaned her evidence on a
critical issue and resulted in an unfair trial.

BACKGROUND

[5]

There is no dispute about the facts. In the early morning of October 30,
2004, the appellant and Mr. Miller were at a party at an apartment in Prince George.
The appellant had a machete with him. At one point he sprayed beer on Mr. Melansons
younger sister. She was upset and called her brother to come and pick her up.


[6]

Mr. Melanson arrived at the party in his pickup truck with his fiancée,
Nicole Middlemiss. He became involved in an altercation with some of the
party-goers, including the appellant and Mr. Miller, during which the appellant
struck Mr. Melansons truck with his machete. Mr. Melanson and Ms.
Middlemiss quickly drove away to a nearby pay phone to call the police.

[7]

The appellant and Mr. Miller left the party shortly after this, as
passengers in a vehicle with two girls. When they passed Mr. Melansons truck
at the pay phone, they told the girls to stop and let them out, and ran toward
the truck. The appellant was carrying the machete. No one saw Mr. Miller
carrying a weapon.

[8]

Ms. Middlemiss saw them and warned Mr. Melanson. He ran to his truck,
got in the drivers side, and closed the door. Ms. Middlemiss did not have time
to get to the truck, so ran into the street to flag down help.

[9]

Coincidentally, two police officers were driving by. They stopped just
in time to see the appellant and Mr. Miller fleeing the scene on foot. Less
than a minute transpired between the end of Mr. Melansons 911 call and the
officers first radio communication after they stopped. The police found Mr.
Melanson bleeding heavily from the wound to his neck. He was transported to the
Prince George Regional Hospital, and was in cardiac arrest due to blood loss
when he arrived. Dr. Rowe, an emergency physician, commenced life support
measures and called for Dr. Wankling, a surgeon. Dr. Wankling surgically
extended the neck wound in an attempt to locate the source of bleeding and stop
it, but Mr. Melanson died of hemorrhagic shock before that could be done.

[10]

None of the Crown witnesses saw whether the appellant, Mr. Miller, or
both caused Mr. Melansons injuries. Ms. Middlemiss and another witness could
only say that they saw the appellant on the drivers side of the truck with the
machete at some point.

[11]

The appellant testified that while he was mad at Mr. Melanson and intended
to hurt him, he did not intend to kill him. He denied hitting him in the neck
with the machete. He said he tried unsuccessfully to open the drivers door to
get at Mr. Melanson, and then struck the drivers window with the machete,
breaking it on the second swing. Mr. Melanson then went out the passenger side
of the truck, so the appellant ran to that side where he saw Mr. Melanson
struggling with Mr. Miller, who was holding him in a headlock. The appellant said
he struck Mr. Melanson once in the leg with the machete. He was shocked by what
he had done, threw the machete to the ground, and ran away. He looked back as
he ran and saw Mr. Melanson and Mr. Miller still fighting, and the police
coming.

[12]

Mr. Miller did not testify, but gave a statement to the police which was
entered at trial. He said he did not intend to hurt or kill Mr. Melanson. He
was on the passenger side of the truck when Mr. Melanson came out and almost
knocked him over. They grappled until the appellant struck Mr. Melanson with
the machete, distracting him. Mr. Miller said he then ran away, while the
appellant continued the attack on Mr. Melanson.

[13]

Cpl. Steinhauser, an expert in forensic identification, testified that
there was a trail of blood inside the trucks cab from the drivers side to the
passengers side.

THE
EXPERT EVIDENCE

[14]

Dr. McNaughton testified to his observations of Mr. Melansons wounds at
the autopsy on November 2, 2004. Dr. Rices opinion was based on the autopsy
report, photos of the injuries taken at the autopsy, forensic laboratory
reports, and a short summary of the treatment Mr. Melanson received from Drs.
Rowe and Wankling. She agreed that it is always better to see the material personally.

[15]

In his autopsy report, Dr. McNaughton numbered and described the six
injuries as follows:

Wound 1 a 4.5 cm incised wound to the
back of the head close to the hairline, caused by a sharp object;

Wound 2  a 5 cm vertical abrasion at the
base of the neck in the shoulder region, caused by blunt force;

Wound 3  a Y-shaped incision on the right
side of the neck, comprised of the original wound and Dr. Wanklings surgical intervention;

Wound 4  a 2.5 cm chop wound to the lower
left shin, extending into the tibia;

Wound 5  two superficial incisions in the
left anterior scalp caused by a sharp instrument;

Wound 6  two abrasions on the
right chest caused by blunt force.

[16]

The characteristics of Wounds 1, 3, and 4 provided the primary basis for
the divergent opinions of the pathologists. As set out previously, Dr.
McNaughton opined that all six injuries could have been inflicted by a machete,
and said he saw nothing to suggest that another weapon may have been involved. Dr.
Rice was of the view that only Wound 4 was clearly from a machete. She
testified that Wounds 1 and 3 could not have been caused by a machete because
they were more sharply incised, indicating that they had been inflicted by a weapon
with a sharper blade, likely a knife. She thus concluded that Mr. Melansons
injuries had been caused by more than one weapon.

[17]

With respect to Wound 4 to the leg, both pathologists agreed this was a
chop wound, caused by a heavier instrument like a machete. Dr. McNaughton
described it as an incised wound with sharp edges and no tearing. Dr. Rice
disagreed, testifying that the margins of the wound showed crushing of the skin
and tissues typical of force from a heavier weapon.

[18]

With respect to Wound 1, near the hairline, both pathologists agreed
this was an incised wound with sharply divided edges, and that the weapon used
had cut the hair in the area as well. Dr. McNaughton testified it could have
been caused by a chopping action that both drew across and penetrated down into
the area. Dr. Rice disagreed, saying that it had none of the characteristics of
a chopping wound. She pointed out that there was no crushing of the wound edges
as in the case of Wound 4, and said Wound 1 had been caused in a very different
manner from a chopping wound. In her view, the appellants machete was
inconsistent with having produced Wound 1 as its cutting edge was rough and
dull and it would not cut the hair and skin as cleanly as shown in the photos
of the wound.

[19]

With respect to Wound 3, the testimony of Dr. Rowe and Dr. Wankling was
important in describing how Dr. Wanklings surgical exploration of the injury changed
its original appearance. He first made a straight vertical incision to the
right of the wound. He then made a bridging incision, which connected that
vertical incision to the original wound, creating a Y-shaped incision in which
the original wound was at the outer end of the left hand branch of the Y. At the
autopsy, Dr. McNaughton measured the vertical incision made by Dr. Wankling as
14.5 cms long, and the branch comprised of the original wound and the bridging
incision as 8.5 cms long.

[20]

Dr. Rowe and Dr. Wankling agreed that they had not made any reliable
assessment of the size of the original neck wound at the time of their
treatment as there was too much blood in the area and they were focussed on
saving Mr. Melansons life. However, on being shown photos of the wound from
the autopsy, each was able to give some indication of the location and size of
the original wound. Dr. Rowe said he could not do this with one hundred per
cent confidence, but he believed the original wound could be seen at the end
of the left arm of the Y covered by four surgical staples with the fifth staple
marking the start of the bridging incision. Referring to a scale in one of the
photos of the wound, he estimated the original injury was 3.5 to 4 cm long. Dr.
Wankling said he thought the original wound was at least 3 cms long and could
have been as long as 6 cms, but acknowledged his estimate could be out a
significant amount. When shown photos of the wound, he pointed out that the
edges of the original wound were more ragged than those of the surgical wound,
and he was able to identify the former by reference to the same four surgical
staples mentioned by Dr. Rowe.

[21]

Dr. McNaughton testified that he could not identify how much of the left
branch of the Y incision was attributable to the original wound and how much
was a surgical incision. He believed Wound 3 had been caused by a machete for
two reasons. First, the sternomastoid muscle was completely severed, and this
would require a very wide blade. Second, the wound was 10 cms deep and extended
through the pharynx. The size of the injuries where the blade penetrated the
two sides of the pharynx indicated a significant widening of the blade over a
short distance, which was compatible with the shape of the appellants machete.
Dr. McNaughton agreed that if Wound 3 was only 4.5 cms long, the machete
could not have caused it. He said he had looked at the machete in a plastic bag
at the inquest, but did not remove it to examine it. He agreed that it did not
have a perfectly straight edge and was duller than what would be expected for
normal use, but said it still had a significant edge to it.

[22]

Dr. Rice testified that she was able to distinguish Wound 3 from the
bridging incision in the photos. Like Drs. Rowe and Wankling, she placed the
original wound at the last four staples of the left branch of the Y-incision.
She said that Dr. Wanklings bridging incision was very straight and had
rolled edges typical of a surgical incision. It met the original wound at a bit
of an angle where there was a gap. She roughly estimated the length of the
original wound at 3.5 to 4 cms, and said that the appellants machete could not
have caused it. It was too large to have caused an incision of that size that
was 10 cms deep. The surface wound would have had to be considerably larger if
caused by the machete. As well, its rough cutting edge would have torn the
tissues rather than sharply dividing them. In her view, Wound 3 was most likely
caused by a knife. She said that the sternomastoid muscle could have been
severed by a knife with a very sharp cutting edge and a blade that was 10cms
long and 4 cms wide at the 10 cm point. While she agreed that Dr. McNaughtons
measurements of the injuries to the pharynx matched the dimensions of the
machete, she said that the machete could not be matched to other aspects of the
wound. As well, she noted that the weapon causing this injury would have had
large quantities of blood on it, but little blood was detected on the
appellants machete.

[23]

The characteristics of Wounds 2, 5, and 6 did not contribute significantly
to the debate between the pathologists. Both agreed that Wounds 2 and 6, which
were caused by blunt force, could have been produced by any number of
instruments, including a machete. Dr. McNaugton described Wound 5 as an incised
wound but said it could be caused by a machete. Dr. Rice said the photographs of
Wound 5 were not clear enough for her to say one way or the other, and so she
could not rule out a machete as the cause of Wound 5. However, she thought this
was highly unlikely based on Dr. McNaughtons description of it and the fact it
appeared superficial.

THE RELEVANT
PROCEEDINGS AT TRIAL

[24]

At the opening of the trial on February 20, 2006, the trial judge gave
the jury oral instructions about their role as judges of the facts. This
included the standard direction that it would be their memory and opinion of
the evidence that would govern their determination, and that they were not
bound by any view or opinion that he expressed.

[25]

Until Dr. Rice testified at the end of the trial, the theory of the Crown
was that the appellant was the principal offender and inflicted all of Mr.
Melansons injuries with his machete, while Mr. Miller aided or abetted him. After
Dr. Rice testified that she believed Mr. Melansons wounds were caused by two
weapons, the Crown expanded its theory and alleged that the appellant and Mr.
Miller may also have been co-principles in committing second degree murder.

[26]

The trial judge charged the jury on March 21, 2006. At the outset, he
gave them binders that contained a copy of his remarks at the beginning of the
trial, two mid-trial instructions, and his written charge. He did not, however,
reiterate his opening instructions during the charge, except for the instruction
on reasonable doubt, and a reminder to the jury to review his earlier direction
on circumstantial evidence.

[27]

The trial judge began his charge with a lengthy review of the evidence
of each witness. Before embarking on this, he told the jury that his summary
may not be complete, and reminded them that they were the judges of the facts.
He told them they should not rely on it as complete or more accurate than their
own recollection of the evidence.

[28]

In summarizing the medical evidence about the size of Wound 3, the trial
judge said Dr. Rowe had not been able to assess this at the time because of the
bleeding, and had agreed with counsels estimate of the original wound as 3.5
to 4 cms. As to Dr. Wankling, the trial judge said he estimated it as 3 or up
to 6 cms in length, he had not measured it, and he agreed that an object with a
dull edge could stretch the skin to some extent due to its elasticity.

[29]

In reviewing Dr. McNaughtons evidence, the trial judge noted it was his
opinion that all of the injuries were consistent with being inflicted by the
machete. He summarized Dr. McNaughtons evidence about the significant
characteristics of Wound 3 in these terms:

The first was the complete
severing of the external mastoid muscle, which suggested a very wide blade was
used, and that where the wound extended right through the pharynx the length of
the incision on the left side of the pharynx was approximately two centimetres,
and on the right side it was 3.5 centimetres. He considered this significant
widening in a relatively short distance suggested an instrument shaped like the
machete, which went from a point to wide quickly. He said that although the
width of the pharynx was 2.5 to three centimetres in the centre, the cut was
towards the back where the distance between the cuts was less than that and
consistent with the 1.3 centimetre distance between the point along the machete
blade where it is two centimetres wide and the point where it is 3.5
centimetres wide.

He also said that Dr. McNaughton
testified he could not distinguish between the surgical incision and the
original wound to determine the length of the latter, and that while an
incision in the skin is usually a good indication of the width of a blade, it
could be smaller due to the elasticity of the skin.

[30]

This is the entirety of the trial judges summary of Dr. Rices evidence.
I have underlined those aspects that are the basis of the appellants
complaints:

The final witness of the trial was Dr. Jennifer Rice, who was
qualified to give opinion evidence as a forensic pathologist. She rendered
opinions in disagreement with those of Dr. McNaughton on several points.
She
testified that in her view the injury shown in photograph T72 to the back of
the head
is not consistent with it having been inflicted by the machete. In
her view the machete edge is very rough and quite dull and probably capable of
cutting tissue but not of cutting hair.
I note that she was not asked if
hair could be cut by chopping, in light of Dr. McNaughtons opinion that that
wound was partly incised, and partly chopped.
Looking at photograph T50,
the neck wound, she demonstrated where she believed the surgical incision ended
and the original wound began.
From the photograph she estimated the length
of the original wound at 3.5 to four centimetres, although she acknowledged
that the photograph showed a flat ruler and rounded neck
.

Dr. Rice said that it was impossible to cause a smaller wound
than the instrument cutting it.
Asked about elasticity of skin, she seemed
to agree skin had elasticity, but suggested a cutting instrument can only cut
or tear tissue.
She testified that she did not think a person could inflict
the neck wound without getting blood on them. Dr. Rice disagreed with Dr.
McNaughtons view that the machete was consistent with the neck wound. She
expressed the opinion that the neck wound was caused by a single edged knife,
approximately four centimetres wide and with a very sharp cutting edge.

Cross-examined by Mr. Kaun, Dr. Rice agreed that the
doctor actually attending at the autopsy would be in a better position to make
observations.
She said that from the photographs she disagrees that the
wound at the back of the head could also have been partly from chopping. She
agreed that the neck wound would not necessarily bleed on the perpetrator if he
was far enough away or behind the victim at the time of the stabbing.

Looking at the photographs of the wound number 5, namely the
front of the scalp wound, she said the photograph was not good enough to enable
her to rule the machete in or out, but she thought it was highly unlikely to
have been used to cause that wound.

In cross-examination by Mr.
Swanson she said that the machete was not sharp enough to be capable of
inflicting sharply incised wounds and, in her opinion, Brent Melansons wounds
were caused by two or more different instruments.

[31]

The trial judge next embarked on a discussion of the elements of the
offences of second degree murder and manslaughter, and the law with respect to parties.
He described the question of who stabbed Mr. Melanson in the neck as one of
the key factual issues in this trial, and noted that since no one saw who
inflicted that wound, the Crowns case depended on circumstantial evidence. In
reviewing the evidence on this issue he said:

Other evidence that you will consider on the question of the
relative involvement of each of the accused is the physical and medical
evidence of the nature of the neck wound itself in relation to the dimensions
of the machete.

The evidence on this question includes the rough estimates of
Drs. Rowe and Wankling as to the length of the original wound and the latters
evidence about the elasticity of human skin as well as the evidence of the
pathologists Dr. James McNaughton and Dr. Jennifer Rice. Dr. McNaughtons
opinion, which I have already summarized, is that the characteristics of the
neck wound are consistent with an instrument shaped like the machete in
evidence as Exhibit 6, and inconsistent with a narrow knife being moved back
and forth as suggested by Mr. Jones, which he said would have created a longer
wound in the skin.
You will also consider Dr. Rices evidence that two or
more different weapons were used to inflict the various wounds and that the
neck wound as it appears in the photographs is inconsistent with being caused
by the machete, because the wound is too small and does not show tearing.

Bear
in mind that Dr. Rice did not view the body herself and is using the
photographs and the ruler included in photograph T50 to make conclusions about
size. Her conclusions as to the point where the incision started are based on
the photograph, and Dr. McNaughton testified it was not possible to determine
exactly where the surgical incision ended and the wound began.

It is of course open to you to reject or doubt expert opinion
evidence as you may do with any evidence, but you should not do so lightly in
view of the expertise and stated reasons for the expert opinions. I will say
more in general about expert evidence later.

There is no other evidence of any
weapon other than the machete being in the possession of either of the accused
at the material time, and there is no evidence that the machete was in Mr.
Millers hands, but it is Dr. Rices testimony that two different weapons were
used and the possibility that you might accept that as reasonably possible that
requires the Crown to advance the alternative theories that it does in this
case. If you conclude that the machete was not the weapon that inflicted the
fatal wound, or have a reasonable doubt about that, there is not much evidence
to support inferences as to which of the two accused had possession of another
weapon. You may well infer that it could only have been one or the other of
them from all the circumstances and the extremely short window of time during
which Mr. Melanson was wounded.

[32]

Later on the issue of co-perpetrators he said:

If you are satisfied beyond a
reasonable doubt that the two accused acted in concert as a joint endeavour in
a chain of events from start to finish to hurt Mr. Melanson, with a shared
intention, knowledge of dangerousness and recklessness, then it is not necessary
to decide which of them inflicted the fatal wound. They are both
co-perpetrators and they are both responsible for the death of Mr. Melanson.
This is probably not something that you would consider unless you accepted Dr.
Rices evidence of there being two knives used by both accused to inflict the
injuries.

[33]

In dealing with aiding and abetting, he reminded the jury that either
accused might have personally committed the murder, and the other accused could
have aided or abetted him depending on your view of the evidence after you
have resolved the conflicting evidence of the two pathologists.

[34]

The trial judge instructed the jury about the nature of opinion evidence
from experts, essentially using the standard instructions from
CRIMJI:
Canadian Criminal Jury Instructions
, 4th ed. (Vancouver: Continuing Legal
Education Society of British Columbia, 2005). He told them they should assess
expert evidence in the same way as that of other witnesses, and that they were
not obliged to accept any experts opinion. He suggested they use a three step
process of first, examining the experts qualifications and impartiality,
second, considering whether their assumptions were supported by the evidence,
and third, examining the opinion and the process used to reach it. On the
second point, he said this:

Second, you should examine the facts or assumptions or
observations that each expert relied upon to form their opinions. The more an
expert relies on facts not proved in evidence, the less weight you should give
to his or her testimony. If, for example, there is no evidence of any facts or
assumptions upon which the expert relied to form his or her opinion, then you
would attach no weight to the opinion.

One point of difference that
you will have noted between the experts who testified in this trial is that Dr.
McNaughton conducted the autopsy and directed the taking of the pictures that
were taken there, whereas Dr. Rices opinions on matters such as length and
margins of wounds and sharpness of wound edges were formed from viewing the
photographs. It is for you to decide whether that is or is not significant
.

ANALYSIS

[35]

The appellant says that Dr. Rices testimony was the foundation of his
defence. It went to the critical issues of whether two weapons were used to
inflict Mr. Melansons wounds, and whether the appellant struck the fatal
blow with his machete. It also assisted in bolstering his credibility in the
face of conflicting accounts of the events. If accepted, it minimized his role
to the extent that there was a reasonable doubt as to his culpability for second
degree murder, and he would have been acquitted or convicted of manslaughter.
The appellant argues that the trial judges treatment of Dr. Rices evidence in
his charge unfairly demeaned it both explicitly and implicitly in a manner that
invited the jury to discount it. He raises three particular complaints:

1.       the
trial judges summary of Dr. Rices evidence on the pivotal issue of whether
the machete could have caused Wound 3 was inaccurate and incomplete;

2.       the
trial judge unfairly emphasized Dr. McNaughtons opportunity to observe Mr.
Melansons wounds at the autopsy;

3.       the
trial judge improperly expressed his own view that Dr. Rices evidence was
limited because she had not seen the wounds herself.

[36]

The appellant says this resulted in an unfair trial, and his conviction
must be set aside and a new trial ordered.

[37]

When considering the fairness of a trial judges instructions to a jury,
an appellate court must adopt a functional approach, and take care not to
divorce the charge from the trial as a whole. While an accused is entitled to a
properly instructed jury, a trial judge is not required to meet a standard of
perfection:
R. v. Jacquard
, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1 at
paras. 32-33.

[38]

In
R. v. Cooper
, [1993] 1 S.C.R. 146 at 163, 78 C.C.C. (3d) 289, Cory
J., writing for the majority, set out these guidelines for assessing the adequacy
of a charge, which have been affirmed many times subsequently:

... Directions to the jury need
not, as a general rule, be endlessly dissected and subjected to minute scrutiny
and criticism. Rather the charge must be read as a whole. The directions to the
jury must, of course, set out the position of the Crown and defence, the legal
issues involved and the evidence that may be applied in resolving the legal
issues and ultimately in determining the guilt or innocence of the accused. At
the end of the day, the question must be whether an appellate court is
satisfied that the jurors would adequately understand the issues involved, the
law relating to the charge the accused is facing, and the evidence they should
consider in resolving the issues.

[39]

It is therefore necessary to provide some context for the appellants
complaints. This was a four week trial with two accused, many witnesses, and
multiple theories of culpability. The charge was necessarily lengthy and
complex. The Crown correctly points out that the appellants complaints relate to
a relatively small segment of the evidence in that overall picture. I am nevertheless
satisfied that Dr. Rices evidence bore on issues that were pivotal to the
appellants defence, and the jurys view of the respective culpability of the
two accused. The issues of whether Mr. Melanson had been attacked with one or
two weapons, and who struck the fatal blow, were clearly before the jury. The
trial judge was obliged to ensure that his instructions on those issues, and on
the divergent views of the pathologists that provided the basis for them, were
fair to both accused.

[40]

Dealing first with the trial judges summary of Dr. Rices evidence, in
R.
v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 at paras. 54-57, Justice
Bastarache, writing for the majority, affirmed this classic statement from
R.
v. Azoulay
, [1952] 2 S.C.R. 495 at 497-498, 104 C.C.C. 97, about a trial
judges duty to review the evidence in a charge to the jury:

... The rule which has been laid
down, and consistently followed is that in a jury trial the presiding judge
must, except in rare cases where it would be needless to do so, review the
substantial parts of the evidence, and give the jury the theory of the defence,
so that they may appreciate the value and effect of that evidence, and how the
law is to be applied to the facts as they find them. ... The pivotal questions upon
which the defence stands must be clearly presented to the jury's mind.

[41]

Justice Bastarache went on to say that trial judges are not required to
undertake an exhaustive review of the evidence in their charges. Non-direction
on a matter of evidence will be a reversible error only when the item of
evidence in question is the foundation of the defence. The extent to which the
evidence must be reviewed comes down to a test of fairness to the accused in
each case. In some cases, the addresses by counsel may fill gaps in the charge.

[42]

I have set out the trial judges summary of Dr. Rices testimony at
para. 30 of these reasons. The appellant argues it was inaccurate and unfair in
several respects. First, the trial judge mistakenly referred to photo 72, which
depicted Wound 4 to the leg, as a head wound inconsistent with infliction by a
machete, thereby conflating Wounds 1 and 4 and confusing the jury on an
integral part of Dr. Rices evidence.  Second, he unfairly discounted Dr.
Rices opinion by remarking that she was not asked whether hair could be cut by
chopping. This was a hypothetical question that bore no relevance to her
testimony since her opinion was Wound 1 showed no evidence of chopping. Third,
his summary of the most critical aspect of her opinion  that Wound 3 was not
caused by the machete  was so incomplete that it rendered her opinion
virtually worthless. The size of the original wound was critical to the
opposing views of the pathologists as to what weapon caused it. Dr. McNaughton
was unable to say where the original neck wound intersected with the surgical
incision, whereas Dr. Rice could discern this in the photographs, as could Dr.
Rowe and Dr. Wankling. Instead of relating this evidence, the trial judge inaccurately
implied that Dr. Rices estimate of the wounds length was qualified by using a
flat ruler to measure a round neck, and by her opinion on the elasticity of
skin. Further, the summary did not mention Dr. Rices response to the points made
by Dr. McNaughton in support of his view that the machete caused Wound 3.

[43]

In my view, the trial judges error in confusing Wounds 1 and 4 was inconsequential.
The jury had the photos and would not be confused by this.

[44]

I agree that the reference to a question not asked was an unnecessary
editorial comment by the trial judge, and tended to denigrate Dr. Rices
evidence by wrongly suggesting that she failed to address some significant
point. However, I am not persuaded that this comment, by itself, created
unfairness.

[45]

The appellants more significant complaint relates to omissions and
inaccuracies in the trial judges summary of Dr. Rices evidence about the
likely cause of Wound 3. Her view that the wound was smaller than the machete
was key to her opinion. Yet the trial judge did not fully deal with her
evidence on this point. Instead, he suggested that her measurement of the wound
at 3.5 to 4 cms was inaccurate because she relied on a flat ruler to measure
the round neck. That comment ignored Dr. Rices evidence that she had adjusted
for that factor in estimating the wound size. As well, the trial judge weakened
her evidence about whether the elasticity of the skin affects the size of a
wound by misquoting it. Dr. Rices evidence on this point was clear that
elasticity of the skin did not affect wound size, which is governed by the
width of the instrument that caused it. Further, the trial judges review of
the  medical evidence failed to mention that Dr. Rice, Dr. Rowe, and Dr.
Wankling were each able to identify the original wound by its characteristics
in the photographs and were consistent in describing its location and size.
Finally, the trial judge did not mention Dr. Rices response to Dr. McNaughtons
opinion that the severance of the sternomastoid muscle demonstrated Wound 3 had
been caused by the machete.

[46]

I recognize that a trial judge is not obliged to mention all of the
evidence in his charge, particularly after a trial of this length. In deciding
whether the shortcomings in his account of Dr. Rices evidence resulted in an
unfair trial, it is necessary to examine them in the context of the trial as a
whole, the addresses of counsel, and the balance of the charge.

[47]

Dr. Rice was the last witness to testify, and gave her evidence just
four days before the judge charged the jury. Her evidence was therefore fresh
in the jurys mind. The appellants counsel included a comprehensive review of
her evidence and a critique of Dr. McNaughtons differing views in his address
to the jury. He also drew the jurys attention to the consistencies between the
evidence of Drs. Rice, Rowe and Wankling as to the location and size of Wound
3. As well, the trial judge told the jury at the outset of his charge that his
summary of the evidence may not be complete or accurate, and it was their view
of it that governed.

[48]

Given this context, if the deficiencies in the judges summary of Dr.
Rices evidence were the only basis for complaint, I would not be persuaded
that the trial was unfair. However, the appellant raises two further complaints.
He says that the trial judge also demeaned Dr. Rices evidence by unfairly
emphasizing Dr. McNaughtons opportunity to personally observe Mr.
Melansons wounds at the autopsy, and by improperly expressing his own view on
that point.

[49]

It is apparent that the trial judge formed the view that there was a
significant distinction between the medical evidence based solely on the
autopsy photographs and Dr. McNaughtons evidence based on his personal
observations at the autopsy. During Dr. Rices evidence, an issue arose as to
whether Dr. Wankling had been able to identify the original incision in the
photographs, which led to this exchange:

THE COURT:  I dont know. I
mean in fairness, I might be able to clarify some of the  the problem that Dr.
Rice is having with the question. Dr. Wankling was  was  youre referring to
Dr. Wanklings evidence relating to the photograph?

MR. KAUN:     Thats right.
No. I had asked him.  I had asked him a series of questions that had to do
with he was busy saving a life 

THE COURT:  Okay. So there is
a distinction. I mean, Dr. Wankling was  was referred to photographs, asked to
 if he could tell us from the photographs where one started and one ended and
he couldnt.

MR. KAUN:     Right.

THE COURT:  But Dr. McNaughton wasnt doing that about
photographs. He  he was  he was the  he was at the autopsy, a very  a very
significant distinction there.

[50]

As an aside, the trial judge was in error in his recollection that Dr.
Wankling could not identify the original wound in the photographs. The main
point, however, is that the trial judge was clearly of the view that Dr.
McNaughtons evidence was enhanced by the fact it was based on personal
observations.

[51]

During his charge, the trial judge reiterated that view three times in dealing
with Dr. Rices evidence. Those comments are set out at paras. 30, 31, and 34
of these reasons.

[52]

I see nothing objectionable in his first comment on this topic, made in
summarizing Dr. Rices evidence. He simply repeated her concession on
cross-examination that the doctor doing the autopsy is in a better position to
observe the wounds. I am persuaded, however, that his subsequent emphasis of
this point unfairly denigrated Dr. Rices evidence for the following reasons.

[53]

First, while Dr. Rice conceded the obvious ‒ that personal
observation was preferable ‒ there was nothing to suggest that in this
case her inability to personally see the wounds had any bearing on the validity
of her opinion. That was not explored with her, and the evidence suggested the
contrary. As noted earlier, she, Dr. Rowe and Dr. Wankling were all able to
identify the size and location of Wound 3 in the autopsy photos, and their
evidence about this was consistent. Oddly, Dr. McNaughton was the only
medical witness who could not do so, despite his advantage of having personally
seen it. Given this evidence, it would have been a reasonable inference that
the opportunity to personally examine Wound 3 was irrelevant to identifying its
original size. I am persuaded that in these circumstances it was unfair for the
trial judge to emphasize Dr. Rices failure to see the wounds in contrasting
her opinion with that of Dr. McNaughton.

[54]

Moreover, an uneven opportunity to personally observe relevant material
is only one factor to consider in deciding how to deal with conflicting expert
testimony.
R. v. Parnell
(1983), 9 C.C.C. (3d) 353 at 362-64, 1 O.A.C.
161, leave to appeal refd [1984] S.C.C.A. No. 331, is a case with some
similarities to this one. There, the Court allowed an appeal in part because
the trial judge had undermined the theory of the defence by the instructions he
gave the jury about the conflicting evidence of two pathologists. The judge
pointed out that the pathologist called by the defence was at some disadvantage
because he had not been at the autopsy, and then said this:

Now there is nothing miraculous
about the opinion of an expert and you may throw out that evidence entirely if
you see fit. You are not bound to accept the evidence of an expert, any one or
any of them. Medicine is not an exact science and experts quite often disagree.
I would think, however, that you would give serious consideration to the
evidence of experts. They operate in the field in which you and I are not too
familiar and when there is a conflict, perhaps it would not be out of place for
you to ask yourselves, well, which expert really had the best opportunity to
examine the evidence about which he spoke and from which he drew his
conclusions. Which based his opinion on his own observations and which had to
depend on the observations of others. Now I leave the resolution of the
apparent conflict of the medical opinions to you and I just ask you to use your
own common sense and good judgment in resolving that particular problem.

The Court held that while the Crowns pathologist, who did
the autopsy, had a better chance to make direct observations, the trial judge
should have told the jury that this was only one factor to consider in weighing
the experts opinions. Instead, his emphasis on that point unnecessarily and
inappropriately denigrated the defence theory.

[55]

I find those comments apposite here. In my view, it was unnecessary and
inappropriate to emphasize the pathologists respective opportunities to
observe in this case.

[56]

Finally, the appellant argues that the trial judges repeated comments
on this point were compounded by suggesting to the jury that it was his personal
view that Dr. Rices evidence should be discounted.

[57]

In
R. v. Dove
, 2004 BCCA 338, 187 C.C.C. (3d) 506 at paras. 35-47
this Court observed that while trial judges may voice personal opinions on the
evidence or a witnesss credibility during a charge to the jury, they should do
so with caution. The judge occupies an authoritative position in the jurys
eyes, and such comments may interfere with the fairness of the trial if they
are made without advising the jury that they are not bound by the judges
opinion, or if they are expressed so strongly that they usurp the function of
the jury. A general instruction about the division of responsibility between a
judge and jury may not overcome the prejudice arising from a judges strongly
stated view of the evidence.

[58]

In
Daley
at paras. 59-62, Bastarache J. dealt with these
principles in the context of expert evidence, and affirmed that it is the role
of the jury to decide what inferences should be drawn from such evidence. The
trial judge should not encroach on that role by offering a view as to how the
jury should interpret the expert testimony. If the judge does so, he or she
must take great care to impress upon the jury that they need not accept that
view.

[59]

Here, the trial judges comments about the pathologists comparative
opportunities of observation were not overtly directive, in the sense that he did
not tell the jury they must ignore Dr. Rices evidence. His repeated comments
nevertheless strongly suggested that they should draw the inference that
Dr. McNaughtons evidence should be accepted, thereby inappropriately
discounting Dr. Rices opinions.

[60]

I appreciate that at the outset of the charge, and again when he
referred to the importance of personal observation for the third time, the
trial judge told the jury it was their opinion of the evidence that mattered,
but these were passing comments. While he had given them the more extensive
standard direction that it was their opinion and memory that mattered in his
opening comments, that had been a month before and, while the jury had a copy
of those comments, he did not direct them to review them during his charge. In
the context of this trial, and the pivotal nature of Dr. Rices testimony, I am
not satisfied that those comments were sufficient to restore her opinions to
the same stature as Dr. McNaughtons.

[61]

I also recognize that the appellants counsel did not object to the
trial judges treatment of Dr. Rices evidence at trial, and these issues are
raised for the first time on appeal. While that is a factor to be considered,
it does not foreclose their consideration by this Court:
Jacquard
at
paras. 35-8,
Daley
at para. 58.

[62]

I am satisfied that the cumulative effect of the errors and omissions in
the charge to the jury related to Dr. Rices evidence unfairly demeaned her
opinions on the pivotal issues of whether more than one weapon was used in
assaulting Mr. Melanson, and whether the appellant struck the fatal blow
to his neck. I would therefore allow the appeal, set aside his conviction, and
order a new trial.

The Honourable Madam Justice Neilson

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable Madam Justice Kirkpatrick


