



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2018 ONCA 351

DATE: 20180411

DOCKET: C62011 & C62548

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Lewis and Aaron Lewis

Appellants

Michael Dineen, for the appellant Courtney Lewis

Eric Neubauer, for the appellant Aaron Lewis

Peter Fraser, for the respondent

Heard: February 23, 2018

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

Sharpe J.A.:

[1]

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

[2]

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

A.

FACTS

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

A
    video was taken of the altercation by an unknown individual. It is 39 seconds
    in length. It shows Turcotte being assaulted by three or four individuals who
    are difficult to make out. Two are wearing black shirts and one is wearing a
    long-sleeved white shirt. There is also an individual in the video wearing a
    short-sleeved white shirt who was not involved in the assault. The assaults
    lasts 10 seconds. Courtney testified that Aaron is the individual in the
    short-sleeved white shirt  the one not involved in the assault.

B.

Issues

[12]

Aaron
    raises the following issues:

1.

Did the trial judge err in her jury instruction on eyewitness
    identification?

2.

Did the trial judge err in her
    instructions on aiding and abetting?

3.

Did the trial judge err by deterring
    questions from the jury?

[13]

Courtney
    adopts Aarons position on issue 1 and raises the following additional issues:

4.

Did the trial judge err by failing to define bodily harm?

5.

Did the trial judge reverse the burden of proof on self-defence?

C.

Analysis

(1)

Identification evidence

[14]

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

[15]

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

[16]

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

[17]

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

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

[18]

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

[19]

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

[20]

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

[21]

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

[22]

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

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

[23]

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

[24]

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

16 O.R. (3d)
    295 (C.A.).

[25]

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

[26]

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

(2)

Aiding and abetting

[27]

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

[28]

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

(3)

Questions from the jury

[29]

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

[30]

Jury
    questions play a significant role in the decision-making process:
R. v.
    Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 40. The impugned portions
    of the trial judges instructions in this case are not found in standard jury
    charges and
Watts Manual

of Criminal Jury Instructions
, 2nd ed. (Toronto: Thomson Reuters Canada Limited,
    2015)
advises, at p. 1269, that nothing should be said expressly
    or by necessary implication to discourage questions during deliberations.

[31]

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

(4)

Bodily harm

[32]

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

as any hurt or injury to a person that
    interferes with the health or comfort of the person and that is more than
    merely transient or trifling in nature.

[33]

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

[34]

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

[35]

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

[36]

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

(5)

Self-defence

[37]

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

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

and

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

[38]

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

[39]

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

D.

DISPOSITION

[40]

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

Released: April 11, 2018

Robert J. Sharpe
    J.A.

I agree S.E. Pepall
    J.A.

I agree Fairburn
    J.A.


