



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

6.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.R., 2018 ONCA 615

DATE: 20180709

DOCKET: C62161

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.

Appellant

Owen Goddard, for the appellant

Deborah Krick, for the respondent

Heard: November 22, 2017

On appeal from the conviction entered on September 22,
    2015 imposed on by Justice Andrew J. Goodman of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2015 ONSC 5631.

Feldman J.A.:

[1]

The appellant and his girlfriend lived with a woman whom they cared for.
    They were charged with a number of offences against her as a result of
    extremely serious injuries she suffered, including third degree burns to 18% of
    her body. The charges were for various offenses involving assault, sexual
    assault, and forcible confinement. The appellant and his girlfriend were tried
    together as co-accused. The original trial ended in a mistrial when, following
    the convictions and before sentencing, the victim recanted her allegations
    against the two accused to her brother, telling him that her injuries were
    self-inflicted.

[2]

Following the second trial before a superior court judge sitting alone,
    both accused were acquitted of all charges except the charge of aggravated
    assault by pouring boiling water on the victim causing severe injuries. Although
    the victim initially testified at the second trial that the burns were
    self-inflicted, during cross-examination under ss. 9(1) and 9(2) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, she agreed that her testimony at the
    first trial and preliminary hearing was the truth and that the two accused had
    poured the boiling water on her and forced her to remain in it, causing the
    severe burns.

[3]

The trial judge concluded that he could not convict of any offences
    based only on the testimony of the victim. For a number of reasons, especially
    her numerous versions and recantations of the events in issue, and her history
    of other false, serious allegations against others, the trial judge could not
    accept her evidence standing alone. However, with respect to the burning by
    pouring boiling water, the trial judge found corroboration that the injuries
    were not self-inflicted in the testimony of two doctors called by the Crown,
    together with his difficulty in accepting the physical possibility that the
    victim would have been able to pour the boiling water on herself and suffer the
    injuries in the places that she did.

[4]

The appellant appeals his conviction on four grounds: misapprehension of
    the medical evidence failing to properly exercise the gatekeeper function with
    respect to the expert medical evidence of the two doctors, failing to properly apply
    the burden of proof in concluding that it was the appellant who poured the
    water on the victim, and unreasonable verdict. His co-accused does not appeal
    her conviction.

[5]

For the reasons that follow, I would dismiss the appeal.

Background facts

[6]

The victim, C.G., is an adult woman who was in her 20s when the events at
    the centre of this appeal occurred. She met the appellant, J.R., and his
    girlfriend, C.A., through her boyfriend at the time. Initially, she and her
    boyfriend moved into an apartment with J.R. and C.A. However, when C.G. and her
    boyfriend broke up, he moved out. J.R. and C.A. then moved to another apartment,
    and J.R. asked C.G. to move in with them, which she did. The three later moved
    to a third apartment, a two-bedroom, where they remained living at the relevant
    time.

[7]

C.G. has some physical and mental limitations, including cerebral palsy.
    During the time she lived with J.R. and C.A., she was on a government disability
    pension and contributed to the rent and expenses from her pension. C.A. was also
    on a government disability pension, and similarly contributed to the rent and
    expenses from that source. Eventually, J.R. received income support through C.A.s
    pension as her partner.

[8]

J.R. and C.A. both assisted C.G. with daily tasks such as grocery
    shopping, cooking, and laundry. J.R. also assisted C.G. with managing her
    finances and had access to her bank accounts.

[9]

The event that led to the charges against J.R. and C.A. occurred on August
    13, 2011, when a neighbour called 911 after seeing C.G. out on her balcony
    screaming because she was in pain and yelling something to the effect of I
    poured water on myself. When police and paramedics arrived, the door to the
    apartment was locked and C.G. refused to open it. When an officer was able to
    speak to C.G. from a neighbouring balcony, she said that she did not want help
    and that her roommates will be mad.

[10]

When
    police and paramedics eventually got access, they took C.G. to the hospital
    with extremely serious wounds, including severe burns to over 18% of her body,
    located mainly on her lower back and right leg, with additional smaller areas
    of burns on her genitals, left thigh, shoulder, and neck. The burns were
    infected and covered with blood and puss, causing her clothes to be fused to her
    body. The wounds emitted a terrible and pervasive smell. C.G. remained in
    hospital for 13 days. Her wounds did not heal for over a year and she has been left
    with permanent scars.

[11]

C.G.
    accused her roommates, C.A. and J.R. of confining, burning, whipping, and
    sexually assaulting her over a period of several months. They were arrested and
    charged with 11 counts spanning 7 offences, including assault, aggravated
    assault, sexual assault, assault with a weapon, sexual assault, aggravated
    sexual assault, sexual assault with a weapon, and forcible confinement. They
    were convicted by Leitch J. of all 7 offenses, but following the convictions
    and before sentencing, C.G. told her brother, D.R., with whom she was then
    living, that in fact all of her injuries had been self-inflicted. She repeated
    her recantation in a police statement. As a result, Leitch J. declared a
    mistrial and ordered a retrial.

[12]

At
    the retrial, C.G. initially testified that C.A. and J.R. did not assault her
    sexually or otherwise, that she was not forcibly confined, and that they had
    never hurt her in any way. She stated that she had burned herself with boiling
    water on three occasions, describing how she boiled the kettle and applied the
    water to her body each time. She also described whipping herself with cords.
    She did this to punish herself for the way she acted around people and for
    her repeated transgressions. She also testified that she had sexual
    relationships with J.R. and C.A., but they were always consensual.

[13]

Following
    an application under s. 9(1) and (2) of the
Evidence Act
, C.G. was
    cross-examined on her earlier testimony and reverted back to her original
    position that the appellant, J.R., with the assistance of C.A., had perpetrated
    all of the injuries on her, that her sexual relationship with J.R. and C.A. was
    not consensual but motivated by fear, and that she had been abused and
    confined. She explained that she recanted her original evidence because her
    brother, D.R, had told her to say that she had lied. She also claimed that D.R.
    had hit her so hard she had a bruise between her eyes, but when the police interviewed
    her shortly after, she had no mark on her face.

[14]

C.A.
    testified and denied that she or J.R. had done anything to C.G., including have
    sex with her. She also denied being aware of any of C.G.s injuries until C.G.
    told her about the burn on her back, which C.A. testified C.G. told her was
    from taking a hot shower. C.A. added that she asked C.G. if she wanted to go to
    a walk-in clinic or hospital, but that C.G. refused. The appellant did not
    testify.

Findings by the Trial judge

[15]

The
    trial judge was faced with a very difficult task in light of the inconsistent
    versions given by the victim for her very serious injuries. The trial judge
    commenced his analysis by acknowledging those difficulties together with his
    task as the trial judge in the following paragraphs of his reasons:

[34] I have taken into account the whole of the evidence when
    making these assessments, although I have not recounted all of that evidence in
    the course of undertaking that analysis in these reasons  I have instead drawn
    attention to that evidence and to those particular instances that form the
    central foundations for my findings.

[35] There is no doubt that this is a very difficult case.  The
    challenges facing a trier of fact stem from the undisputed evidence that C.G.,
    a vulnerable person in all sense of the word, had presented at the hospital
    with serious and disturbing injuries while at the relevant time was under the
    care of and residing with both accused. C.A. and J.R. had an exclusive
    opportunity to commit these acts. On the other hand, there were a serious of
    different renditions and recantations offered by the complainant and various
    explanations provided for those changes in her versions of events.

[36] Indeed, it would be a relatively simple and
    straightforward task to review the medical evidence along with the photographs
    of C.G.s gruesome injuries to parts of her body, including burns to her
    vagina, the unchallenged evidence of the extreme degree of pain that would be
    associated with these repetitive type of burns and conclude that no one would
    or could do this to themselves.  Even with the permutations in the victims
    renderings, one could readily conclude that C.A. and J.R. must have perpetrated
    these acts by their failing to act or reasonably react to these severe
    injuries; whether by failing to render proper first aid or address the
    repetitive nature of the burns.  One could look at C.G.s childlike, gullible
    and obsequious behavior and conclude that this vulnerable person could be
    easily manipulated or coerced to act or refrain from doing certain things even
    in the face of repeated abuse and assaults.

[37] However, that is clearly not the test in criminal law and
    would improperly reverse the legal and persuasive burden of proof onto the
    defence.

[38] Undoubtedly, this case does not really involve whether the
    injuries occurred.  The wounds speak for themselves.  While it is true that
    there is a dispute about the sexual assaults and confinement actually
    occurring; the live issue in this case is whether some or all of the injuries
    resulted from acts caused by the accused as principals or parties to the
    offence or whether they were caused by the complainant or are left unexplained.

[16]

He
    then addressed a number of inconsistencies in the victims evidence about the charges,
    as well as some historical allegations of rape that she had made against two
    other brothers of hers, leading to charges that were eventually dropped. At
    para. 58, the trial judge drew the conclusion that C.G. may act or say things
    in order to gain a benefit or to achieve an end without having fully recognized
    the implications of such acts, but that she did so without malice. He reviewed
    and then rejected C.A.s evidence, finding C.A.s claim that she did not
    observe or was not aware of the victims injuries not credible.

[17]

He
    explained how the possible motivation of C.G.s brother, D.R., had become a
    significant issue at the trial, but concluded that D.R. did not force his
    sister to recant or lie and that he had no reason to do so.

[18]

Turning
    to the specific charges, C.G. gave evidence that both accused asked her to
    engage in sexual activity with them, which she did sometimes, although he
    observed at para. 91 that her testimony was often devoid of detail on
    significant issues. C.G. said she was jealous of C.A. and J.R.s relationship
    and thought it was mean of J.R. to propose marriage to C.A. in front of her.
    The trial judge concluded at para. 92 that C.G.s testimony regarding her
    sexual relationship with C.A. and with J.R. was confused and conflicting,
    nor, as he observed at para. 103, was it corroborated by any other evidence.

[19]

The
    charge of forcible confinement was based on C.G.s allegation that both accused
    made her stay in the storage closet as a punishment for urinating on the carpet
    and for other things. She also said that both accused confined her to the
    outdoor balcony of the apartment. C.G. claimed that the doors leading to the
    balcony were taped shut, but the police did not find any evidence of that, and
    she acknowledged at trial that she lied about this fact. The trial judge
    concluded that while C.G. may have believed she was confined, there was no
    evidence supporting her claim, nor was it logical that, if either accused was
    abusing C.G., they would confine her out on the balcony, where she could easily
    scream for help.

[20]

The
    counts of assault with a weapon involved allegations regarding attacks with a
    vase, a lighter, whipping with a cord, and using a vegetable peeler, as well as
    pouring bleach or Vim down the victims throat. The trial judge was not
    satisfied beyond a reasonable doubt of any of these charges because of the
    inconsistencies in C.G.s evidence as well as some fabrication in her
    testimony. He concluded at para. 117 that he could not accept the victims
    evidence as credible and reliable without other evidence capable of some
    confirmation, which did not come out in the medical or other evidence. He
    added at para. 119:

At the end of this exercise, I cannot conclude what actually
    happened. Thus I am left with a reasonable doubt with respect to the
    aforementioned counts.

[21]

After
    acquitting the appellant and C.A. of these offenses, the trial judge turned to
    the final charge of aggravated assault as a result of burning C.G. with boiling
    water. At the commencement of his analysis, the trial judge stated that having
    rejected much of C.G.s evidence, he could not convict based on her testimony
    alone, and that even after ascertaining and accepting confirmatory evidence, he
    had to assess the totality of the evidence that he did accept to determine
    whether the Crown had satisfied its burden beyond a reasonable doubt.

[22]

He
    then reviewed and considered the evidence relating to these counts from C.G.,
    from the two doctors who treated C.G. when she came to hospital, Dr. Scilley
    and Dr. Lewell, and also from C.A. I am describing the trial judges review and
    analysis here because it is critical to the issues raised by the appellant on
    the appeal.

[23]

C.G.
    gave two versions of how the burns occurred. One was that they were self-inflicted
    as a form of punishment; the other, that both accused burned C.G. as a form of
    discipline for her behaviour.

[24]

Although
    the trial judge found her evidence unclear on specific details of the incidents
    and confusing, C.G. described three occasions when she was burned with boiling
    water by the accused. The first time was in the kitchen when J.R. poured hot
    water from the kettle down her left shoulder and it splashed onto her neck. The
    second time was also in the kitchen, when J.R. again poured boiling water from
    the kettle onto her back from the shoulder almost down to the tailbone. She
    also received some injury to her chest. She could not remember the details as
    to why J.R. was punishing her, but it related to touching something of his or
    lying. He told her to take her clothes off and she eventually did, then he
    poured the water on her. She also testified that on one occasion, the
    punishment was for not performing cunnilingus properly on C.A. Also on one of
    the times, C.A. stood by while C.G. rolled on the floor to get away, but C.A.
    held her down by her shoulders.

[25]

The
    third time was in the bathroom. C.A. told C.G. to get into the bathtub and told
    J.R. to boil the kettle. At first, C.G. could not get into the tub because her
    back hurt from the previous burn, but she eventually did it. J.R. poured the
    water onto the right side of her rib cage, and it also reached and burned her
    groin area. She described the pain as 11 out of 10. J.R. told her to take a
    cold shower. Later, both accused sprayed rubbing alcohol on her wounds to take
    the infection away. That was also very painful.

[26]

The
    trial judge then described the evidence of the two doctors called by the Crown,
    who treated the victim for her burns, Dr. Scilley and Dr. Lewell. Both were
    qualified to give expert opinion evidence. The trial judge found that they both
    testified in a credible manner, they did not embellish, and they reasonably
    conceded points raised by defence counsel. At para. 129, he accepted their
    testimony without reservation and their opinion evidence based on their
    observations and medical reports.

[27]

Dr.
    Lewell was the emergency room doctor who treated C.G. on August 13, 2011. He
    was qualified as an expert in emergency medicine and to give opinions regarding
    traumatic injury, burns and other wounds and the physical impact of those
    injuries. The trial judge commented at para. 130 that Dr. Lewells testimony demonstrated
    a significant amount of experience dealing with burns.

[28]

Dr.
    Lewell discussed the injuries depicted on photographs of the victim. The first
    was of her vaginal area, showing a deep partial thickness burn, swelling of the
    labia, with a significant infection. The wound went from the top of the thigh
    through the vaginal area and onto her back. It was consistent with boiling hot
    water as the cause, rather than a flame or other burn.

[29]

The
    next showed hot water burns to C.G.s back and legs. Dr. Lewell described these
    as an infected burn of significant time duration that had partially healed. In
    cross-examination Dr. Lewell testified that the injuries on her right flank and
    mid-posterior, extending to the scapula, could have been caused by one
    continuous burn event.

[30]

He
    described the powerful and pungent odour from C.G.s wounds when she arrived
    at hospital, requiring the medical team to establish special ventilation. He
    concluded that she had intermediate and deep partial thickness wounds covering
    18% of her body surface area. The largest area of injury was the right anterior
    thigh and lower back, with smaller burns covering the genital area, the left
    thigh, shoulder, neck and right flank. He opined that the burns were consistent
    with the scalding story. He estimated their age at the time she came to
    hospital as three to four weeks old. There was no acute injury at that time.

[31]

C.G.
    was in hospital with her wounds for 13 days, followed by physiotherapy, with
    final healing only by November 2012.  Dr. Lewell said that the open wounds
    would be extremely painful normally requiring narcotic pain medication to
    manage daily activities, with ongoing pain and itchiness for some time after
    the wounds had healed.

[32]

He
    said that the time exposure to the water required to cause such wounds would
    depend on the temperature of the water, and that near boiling water would be
    required to cause C.G.s burns. One of the scenarios of how the burns occurred
    was that C.G. had burned herself in the shower. A neighbour testified that the
    water coming out of the taps in her unit was very hot, but not any different
    than anywhere else that she had lived, and she was never burned by it. Dr.
    Lewell testified that he had never seen a deep partial thickness burn to the
    extent of C.G.s with the extensive debridement and tissue destruction, caused
    by tap water, and did not believe it was possible.

[33]

Dr.
    Scilley is a plastic surgeon who specialized in burn injuries, who attended to
    C.G. in the hospital after she was admitted and continued to follow up with her
    in an out-patient clinic following her release from hospital. He said while it
    was difficult generally to date burns with precision, he estimated that C.G.s
    burns were three to four weeks old when she came to hospital in August 2011. He
    testified that her burns were not full thickness but mixed depth, which was the
    more painful category.

[34]

Both
    doctors had seen serious cases of self-inflicted burns in their practices. And
    Dr. Lewell stated that it was not uncommon for patients who self-harm to repeat
    behaviour. Both doctors stated that the pain associated with C.G.s burns when
    they were suffered would be extreme. Dr. Lewell testified that it would be one
    of the most excruciating, uncomfortable pain that I could possibly imagine and
    Dr. Scilley testified that the pain, particularly given the large surface area
    of the burns, would be extremely uncomfortable. While Dr. Lewell acknowledged
    that it was theoretically possible that burns such as C.G.s could be
    self-inflicted, his view was that the patient would have an almost involuntary
    reflex to move away from the cause of the pain.

[35]

He
    further opined that in this case, the location and pattern of the burn
    suggested that she was lying in the hot fluid for a long period of time, and
    that would be contrary to the natural human instinct to get up and try to
    minimize the pain. In cross-examination, he explained that one of the burn
    patterns was consistent with C.G. being in a supine position and inconsistent
    with her being in an erect position.

[36]

At
    para. 144, the trial judge summarized the doctors evidence on the question of
    their opinions on the likelihood of the wounds being self-inflicted:

It is true that neither Drs. Scilley nor Lewell could exclude
    the possibility that the injuries C.G. presented were self-inflicted. Dr.
    Scilley opined that the self-harm scenario would be highly unusual given its
    repetition along with the amount of pain associated with these types of burns.
    While Dr. Lewell has seen self-inflicted injury many times in his practice, he
    had never seen an extensive wound like this caused by self-abusive behavior.

[37]

He
    then made his findings based on his analysis of all the evidence. At para. 146,
    he rejected C.A.s evidence about when she was aware of C.G.s burns and their
    extent, finding her evidence inconsistent with the doctors evidence about how
    old the burns were, their profound visual appearance, and their
    extraordinary smell.

[38]

Next,
    the trial judge analyzed C.G.s story of pouring boiling water on herself
    compared with the physical dynamics of her injuries, and concluded that her
    description could not withstand scrutiny. In particular, he rejected her
    evidence that she poured boiling water on herself from a kettle while standing
    up, then kicked the kettle out of her own hand and rolled on the ground, saying
    at para. 147: I cannot fathom how those calisthenics could manifest themselves
    in the circumstances. Also, C.G.s description of positioning herself in the
    tub and pouring boiling water did not correspond with the alignment and
    location of the burn injuries  the directionality of the wounds instead suggested
    that she was lying down when the water was poured.

[39]

The
    trial judge also rejected the defence submission that the burns could have been
    caused by hot tap water as mere speculation. There was no evidence of the
    temperature of the water in the building. He also accepted the doctors
    evidence that they had not seen such extensive burning from tap water.

[40]

Finally,
    the trial judge accepted the doctors clinical impressions and opinion as
    confirmation of how the burns were inflicted. He found their testimony as well
    as the physical evidence regarding the severity, location and distribution of
    the burns to be inconsistent with a self-harm scenario, and at para. 149 accepted
    their overall opinion that these burns were not self-inflicted.

[41]

Acknowledging
    that C.G.s recantations were problematic, the trial judge rejected her self-harm
    version and accepted that the burns were inflicted by the accused. He concluded
    that her self-harm version was not logical or consistent with the nature,
    mechanism, and position of the burn injuries she sustained.

[42]

Under
    the heading Conclusion, the trial judge found that the medical opinion
    evidence provided reliable confirmation of the manner of the infliction of the
    wounds. He also applied logical inferences in considering how C.G. would have
    been positioned in order to sustain the burn wounds she had. He concluded that
    based on all the evidence, he was satisfied beyond a reasonable doubt that the
    accused had exclusive opportunity and either individually or together applied
    boiling water on the victims right thigh, back, neck, shoulder, and groin
    area.

[43]

As
    a final thought, at para. 153, the trial judge addressed media reports and
    submissions from counsel and other participants in the trial referring to the
    case as the torture case. He stated that he had concluded that there had been
    at least two distinct burning incidents. He found, referring to one of the
    photographs of the burns, that even with some debridement (that is, removal of
    the damaged tissue from the wound), the burn on the victims right flank was
    more recent than the one on the mid-thorax. However, he was not prepared to find
    a pattern of a systemic or prolonged abusive acts amounting to torture.

[44]

In
    convicting the accused of the offence of aggravated assault, the trial judge
    found that the appellant had intentionally poured boiling water on C.G., and
    that C.A. was either a principal or aided and abetted J.R. as a party.

Issues

[45]

The
    appellant raises four issues on the appeal:

1)

The trial judge
    misapprehended the evidence of the expert witnesses;

2)

The trial judge failed
    to exercise his gatekeeper function by allowing Dr. Lewell to give opinion
    evidence that was anecdotal and speculative on the issue of whether the wounds
    could be self-inflicted;

3)

The trial judge misapplied
    the burden of proof by finding that it was the two accused who intentionally
    burned the victim; and

4)

The verdict was
    unreasonable.

Analysis

(1)

Issue 1: Did the trial judge misapprehend the expert evidence?

[46]

The
    appellant submits that in the face of a very dangerous and unreliable witness in
    the complainant, the trial judge properly looked for corroboration of her testimony
    in the evidence of the two expert witnesses, the two doctors who treated C.G.
    However, the appellant maintains that the trial judge erred by misapprehending
    the doctors evidence in two ways. I will address each in turn.

[47]

At
    the beginning of his review and analysis of the doctors evidence, the trial
    judge stated that he accepted their testimony without reservation and their opinion
    evidence based on their observations and medical reports. The appellant states
    that the trial judge misapprehended the evidence of the doctors because there
    were no reports.

[48]

I
    would reject this objection. Dealing first with Dr. Scilley, he was the plastic
    surgeon who treated the victim when she was brought to the hospital on August
    13, 2011 and continued to treat her for over a year. To set the stage for his
    testimony, Crown counsel asked him to confirm that he had had an opportunity to
    review some of his documents, notes, and letters regarding C.G.s treatment,
    which he did. Later, Crown counsel referred Dr. Scilley to an out-patient
    document dated September 9, 2011
report
prepared by you that you have in
    front of you (emphasis added). Finally, Dr. Scilley prepared a letter to the
    Crown in 2014, which was referred to in evidence and marked as exhibit A for
    identification. Crown counsel also referred to another letter and showed it to
    the trial judge, but it was not marked for the record.

[49]

It
    is clear from this review that the trial judge was entitled to refer to the
    documentation that Dr. Scilley relied on and referred to as medical reports during
    the course of his testimony, and he made no error in doing so.

[50]

Similarly,
    Dr. Lewell, who also treated the victim in the emergency department, referred
    to a statement to refresh his memory. When the trial judge canvassed with
    counsel whether there was any objection, he asked if there were any submissions
    on refreshing ones memory from a statement or report.

[51]

In
    my view, it is apparent from the record and the trial judges use of the word
    report that he did not misapprehend whether the doctors had relied on any
    reports, and that he made no error in stating that they had made use of medical
    reports in providing their evidence.

[52]

The
    appellant alleges secondly, that the trial judges conclusion that the doctors
    overall opinion was that the wounds were not self-inflicted, was based on a
    misapprehension of Dr. Scilleys evidence. The appellant argues that Dr.
    Scilley did not say that the wounds could not have been self-inflicted.
    Instead, his opinion was based on the premise, put to him in cross-examination,
    of the unlikelihood that a person would be able to inflict boiling water on her
    own body more than once to the same place. However, he could give no opinion on
    the premise itself, whether the victims burns were caused by one or more than
    one incident.

[53]

In
    examination in chief, Crown counsel asked Dr. Scilley if he could give an
    opinion as to whether the injuries were caused by one or more than one
    incident. He responded:

Um, again they  they all looked to be about the same age, but
    you know, its very difficult to be specific in terms of, you know, what the
    age of the burn is, whether one was there a week before another, several weeks
    out from the time of injury. Certainly there were no acute burns which would
    have happened within the few days prior to her coming to hospital.

[54]

It
    was only in response to a hypothetical question from counsel for C.A. in
    cross-examination, asking whether it was conceivable that a person would pour
    boiling water on herself more than once, that Dr. Scilley answered:

I mean anything is possible. I mean I cannot say no that could
    not be done by - by somebody. People will do unusual things to themselves under
    unusual circumstances and in unusual conditions. Can I say absolutely not? I
    cannot. It would be unusual I think for it to be done on a repeated basis um,
    just because of the pain associated with it. But I cannot say it could not have
    been done, no.

[55]

As
    part of his analysis of whether the wounds were self-inflicted, the trial judge
    concluded that there were at least two separate incidents where boiling water
    was poured on the victim. He then relied in part on the doctors evidence that a
    person would not likely subject herself to such pain more than once, to
    conclude that the burns were not self-inflicted.

[56]

The
    appellant submits that in making his finding that there were at least two
    incidents of scalding, the trial judge misapprehended the medical evidence. The
    trial judge stated, referring to the photograph of the victims burned back,
    that he accepted that the presentation of the superior right flank wound was
    fresher than the mid-thorax burn injury, even with some debridement.

[57]

Both doctors testified that they could not tell from the state of
    the wounds whether there was one or more burning incident. The wounds were
    approximately 3 to 4 weeks old and none was acute or only several days old. Based
    on the presentation of the wounds, it was possible that there was more than one
    application of boiling water or that the wounds were incurred during one
    burning incident. Also, Dr. Lewell testified that debridement of the scab could
    potentially signify an older wound in a different stage of healing than the
    other wounds around it, but not necessarily, because debridement could also
    happen from removal of clothing, cleaning of the wound, or dressing changes.
    There was also evidence that J.R. had used a vegetable peeler, with C.G.s
    consent, to remove some of the scab. Therefore, the trial judge was fully aware
    of the ways in which debridement could have occurred in this case.

[58]

I
    would reject the appellants submission that the trial judge misapprehended the
    evidence of Dr. Scilley on the issue of how many burning incidents occurred. While
    the doctors could not give an opinion on that issue, they said it was possible
    for the wounds to have resulted from burns inflicted at different times.

[59]

The
    doctors opinions were based only on their medical analysis. However, the trial
    judge was entitled to use the evidence of the victim that the appellant poured
    boiling water on her three times and that it was very hard for her to lie down
    in the bath the second time because her back hurt so much from being burned the
    first time, in the context of all of the evidence, to make a finding on that
    issue.

[60]

Once
    the trial judge rejected the victims testimony relating to the self-harm
    scenario and found confirmatory evidence that restored his faith in the
    victims account of how both accused caused her burn injuries by pouring hot
    water on her, he was entitled to rely on the aspects of her testimony that
    related to this issue, including her testimony that there were three incidents
    in which she was burned. See
R. v. Kehler
2004 SCC 11 at para. 22,
    {2004] 1 S.C.R. 328.

[61]

While
    his reference to the photograph as showing that part of the wound was more fresh
    was not based on the positive opinion of the doctors, it was not inconsistent
    with their evidence. I understood it to be his conclusion, based on all the
    evidence, of what the photograph depicts. He was entitled to make this finding
    after a consideration of the full record before him.

[62]

The
    trial judge was not prepared to rely on the victims evidence taken on its own.
    That resulted in the acquittals on all of the other charges. However, on the
    aggravated assault charge, the evidence of the extremely serious injuries
    provided corroboration that the burning had occurred. Because there was
    corroborative evidence in the form of the injuries that an assault had
    occurred, the trial judge was entitled to consider the victims evidence,
    together with the other evidence, including the physical evidence and the
    evidence from the doctors regarding the age, severity, and physical cause of
    the burns, to decide whether the wounds were from self-inflicted scalding.

[63]

The
    trial judge found that it was not physically possible for the severe burn
    wounds on the victim to have been caused the way she described in her
    self-infliction version. This was based in part on Dr. Lewells testimony. And
    he found corroboration for that conclusion which was based on the physical
    evidence, from the evidence of the doctors, that he fairly characterized as an
    overall opinion that the wounds were not self-inflicted.

[64]

The
    trial judge did not misapprehend the firmness of the doctors opinions on the
    issue. He set out in his reasons that both doctors testified that it was
    possible that the wounds were self-inflicted. However, Dr. Lewell based his
    view on the unlikelihood of remaining lying down in boiling hot water given the
    terrible pain, while Dr. Scilleys limited evidence was based on the premise in
    the hypothetical of more than one burning incident.

[65]

In
    my view, the trial judge made no error in characterizing the doctors overall opinion
    as concluding that the wounds were not self-inflicted. Besides the quoted
    evidence from Dr. Scilley, Dr. Lewell stated that he had seen a lot of self-abusive
    behaviour from his experience in the emergency department, but he had not seen
    such an extensive wound as the victims that had been caused by self-harm. He
    also referred to the location of the burn on her back as indicating prolonged
    exposure to the water while laying down, and stated that this would be contrary
    to the natural human instinct to get up in order to minimize the discomfort and
    to the involuntary reflex to move or run. I will discuss the appellants
    objection to Dr. Lewells opinion under issue 2.

(2)

Issue 2: Did the trial judge fail to exercise his gatekeeper function in
    allowing Dr. Lewell to give anecdotal opinion evidence?

[66]

Dr.
    Lewell was qualified by the court as an expert medical doctor and an expert in
    emergency medicine, qualified to give opinion evidence on traumatic injury,
    burns and other wounds and the physical impact of those injuries.

[67]

Following
    his graduation from medicine in 1995, he specialized for 5 years in emergency
    medicine and was qualified by the Royal College of Surgeons as a specialist in
    this area. He began full-time practice at two hospitals in 2000 and teaching as
    an associate professor in emergency medicine at the University of Western
    Ontario in 2006. He had been the trauma team leader for the London Health
    Sciences Centre since 2000. In cross-examination on his qualifications, Dr.
    Lewell explained that his area of specific interest is traumatic etiology, that
    is the initial critical resuscitation phase in the emergency department,
    including major and smaller burn injuries. When defense counsel proposed to him
    that he lacked expertise in burn injuries in specific, he explained that burns
    are a very common presentation to the emergency department and that major
    burn injuries therefore fall within the domain of emergency medicine.

[68]

Dr.
    Lewell treated the victim, C.G., in the emergency department when she was
    brought in on August 13, 2011. When Crown counsel asked him if her burns could
    have been caused by water from a tap, C.A.s defence counsel objected on the
    basis that this was beyond the doctors expertise. Crown counsel responded by
    saying that she believed Dr. Lewell had been qualified to give opinion evidence
    regarding the cause of C.G.s injuries. The court agreed with the Crown.

[69]

Crown
    counsel later asked about what pain the victim would have suffered and the
    doctor responded that this would be one of the most excruciating uncomfortable
    pain that I could possibly imagine. He was then asked if burning oneself was a
    possible scenario and he said it was possible. Crown counsel then asked:

Q. All right. Given that you are able to give an opinion as to
    whether or not it  would be those injuries, those burn injuries that you
    observed would be consistent with someone burning themselves intentionally? In
    other words is that a possible scenario?

A. If the  the burn is consistent with  the burn in my
    opinion in consistent with a hot boiling fluid um, it is possible that could be
    poured upon oneself

Q. All right.

A.  um, to answer your question.

Q. All right and do you have an opinion about whether it would
     the burns you saw would be consistent or not with a patient pouring scalding
    water on themselves more than once? And  and Id like you to take into account
     if  if you can give an opinion, the level of pain that would be occasioned
    when that scalding liquid was poured.

A. In the emergency department I see many patients who have
    self-abusive behaviour. Ive never seen an extensive wound like this caused by
    self-abusive behaviour or self-harm. Um, although theoretically it is possible,
    um yet in my opinion thered be almost an involuntary reflex to move or to run.
    Ive seen patients light themselves on fire for instance and run while on fire
    and the burns that resulted from that, yet theres always involuntary attempt
    to extinguish that or to move. Um, to me the location of the burn here seems to
    imply that its splashed posteriorly and there was a prolonged period of time
    where they were laying in this fluid, if that is the  ultimately the
    underlying cause. And um  and that would be  in my mind it would  it would
    be contrary to the natural human instinct to get up and to try to minimize the
    discomfort.

[70]

The
    only other questions regarding self-harm were asked by defence counsel in
    cross-examination. Counsel for the appellant indicated that she had had a
    discussion with the doctor before court that day about the issue of self-harm.
    She then asked if his earlier evidence, quoted above, was that it was his
    opinion that the victims injuries were not caused by self-harm. and Dr. Lewell
    responded:

Um, itd be my  it was my clinical impression on the day um,
    that the  the patient described for me the mechanism as part of my history how
    the burns were sustained. Um, I  I examined the patient and felt these burns
    were consistent with the mechanism that was described, therefore it was my
    opinion on the day that that would be consistent and therefore these  it was
    not my opinion on the day that these were self-inflicted. Perhaps that  that
    more accurately reflects my understanding of how the day went. It was only
    until today that um  it has never been in my mind at any time that this could
    possibly have been self-inflicted in my understanding is how this  this
    tragedy unfolded.

[71]

The
    appellant submits that the doctors two answers to Crown counsels question 
    that he had never seen an extensive wound like the victims caused by
    self-harm, and that the location of the burn implied that the victim was lying
    in the fluid for a long period of time, which would be contrary to natural
    human instinct  were anecdotal and speculative, lacked probative value, and
    should not have been admitted or relied upon by the trial judge.

[72]

It
    is now well-established that judges must be vigilant in monitoring and
    enforcing the proper scope of expert evidence because of the impact it can
    have on a trial.
R. v. Sekhon
, 2014 SCC 14, [2014] 1 S.C.R. 272, at
    para. 46. Justice Moldaver explained that while such concerns are more
    important in jury trials, judges hearing cases alone must also ensure that
    expert evidence remains within its proper scope following the initial ruling
    qualifying an expert. And it is an error for a trial judge to give any weight
    to inadmissible evidence.

[73]

The
    appellants position is that those two answers given by Dr. Lewell were not
    supported by any research, peer-reviewed literature, or other data to
    substantiate their validity. He submits that it was an error for the trial
    judge to rely on this evidence, similar to the error identified in
R. v.
    Awer
, 2017 SCC 2, [2017] 1 S.C.R. 83.

[74]

Awer
involved an appeal from a conviction for sexual assault. The central issue was
    how the complainants DNA got onto the appellants penis. Each side called an
    expert. The Crown experts opinion was that DNA could only transfer from a wet
    surface such as from a vagina or saliva, while the defence expert disagreed.
    The Crown expert relied on his own observations and non-peer reviewed articles
    in non-academic journals. The defence expert challenged the Crown experts
    opinion as speculative and lacking scientific foundation. The trial judge
    accepted the Crown experts evidence and convicted the appellant. The Court of
    Appeal for Alberta upheld the conviction. The Supreme Court of Canada allowed
    the appeal on the basis that the trial judge had applied materially different
    levels of scrutiny to the evidence of the experts. This error warranted a new trial.

[75]

In
    discussing the admissibility of the evidence given by the Crown expert, the
    court suggested that a
voir dire
might be required at the new trial to
    determine whether the evidence was sufficiently reliable to be admissible.
    Justice Moldaver J. explained at para. 2 that:

It could conceivably amount to circumstantial evidence derived
    from the experts experience, from which an inference as to the origin of the
    complainants DNA could reasonably be drawn.

[76]

In
    stating that the Crown experts evidence in
Awer
could be admissible,
    he compared it to the inadmissible expert evidence in
Sekhon
of a
    police officer regarding what drug couriers know about the drugs they deliver.
    The Supreme Court found that evidence to be inadmissible because it had no
    probative value, consisting of false logic used to infer the appellants state
    of mind when transporting illicit drugs.

[77]

In
    my view, the evidence of Dr. Lewell was not similar to the evidence of the
    Crown experts in either
Awer
or
Sekhon
. Dr. Lewell was
    qualified as an expert in emergency medicine including burn injuries, with 15
    years of experience at the time of the trial. His entire evidence was based on
    his knowledge and experience, including his evidence regarding the nature,
    positioning, and age of the wounds, the pain that would be associated with
    them, their likely cause by burning with boiling or very hot water, as well as
    his past experience with patients presenting with injuries caused by self-harm.

[78]

The
    trial judge was well aware of the extent to which Dr. Lewells opinion
    regarding the possibility that the wounds were self-inflicted was based on his
    experience. He was also well-aware that Dr. Lewell said that self-harm was a
    possibility. Dr. Lewell was not dogmatic on this point. Having made reference
    to all aspects of the doctors evidence on this issue in his reasons, there is
    no basis to suggest that the trial judge did not carefully scrutinize it. He
    decided to give it some weight in the context of all the other evidence.

[79]

Unlike
    the expert evidence tendered in
Sekhon
, which
was inadmissible because it had no scientific
    basis. Dr. Lewells opinion evidence was admissible. At the very least, it was
    circumstantial as described by Moldaver J. in
Awer
. It was based on
    his expertise in understanding and treating burns generally, and in treating
    C.G.s injuries specifically. It was up to the trial judge to determine what
    weight to give the evidence.

[80]

The
    appellant now impugns Dr. Lewells opinion because he did not back it up with
    scientific texts and peer-reviewed research. Dr. Lewell was not asked to provide
    this sort of testimony by either counsel at trial. And it is understandable
    that he did not volunteer such information himself because, as quoted above,
    Dr. Lewell had not been asked to consider the self-harm issue prior to the
    trial.

[81]

I do not agree that Dr. Lewells evidence was anecdotal,
    speculative and irrelevant. He was qualified to give expert opinion evidence
    about traumatic injury, burns and other wounds. But he was also testifying as
    the treating physician. It was in this dual capacity that he answered counsels
    questions. He did not overstate or offer a definitive conclusion, indeed said
    that self-harm was a possibility. It was open to the trial judge to consider as
    he did this evidence.

[82]

Furthermore,
    neither defense counsel for the appellant or C.A. objected to any of the
    evidence the appellant now claims should not have been admitted. Some of the
    evidence was in fact elicited by defense counsel on cross-examination, and both
    the Crown and the defence sought to make use of this evidence to support their
    positions. The lack of objection, the way that Dr. Lewell was cross-examined by
    defense counsel, and the use of his evidence by both the Crown and the defense
    suggests that Dr. Lewells opinion evidence was not considered impermissible
    opinion evidence prejudicial to the appellants position at trial: see
R.
    v. Ajise
, 2018 ONCA 494, at para. 27; and
R. v. Potts
, 2018 ONCA
    294, at paras. 17 and 55.

[83]

As
    a final point, It is unclear from the record in this case whether the Crown
    complied with s. 657.3(3)(b) of the
Criminal Code
,
[1]
which requires the Crown to provide a summary of the anticipated opinion to be
    given by an expert witness at trial.  If this provision is not complied with,
    s. 657.3(4)
[2]
provides several remedies that the defence may request from the court.

[84]

By
    asking any expert witness to prepare a report or at least a summary of any
    opinion evidence that the witness will be asked by the Crown to give at trial,
    as well as the basis of such evidence, many of the issues that have caused
    concerns in the case law with the propriety of expert evidence will be
    alleviated. As part of the gatekeeper function, the trial judge may canvass
    with counsel whether expert witnesses will be called and whether counsel have
    provided reports or summaries in compliance with s. 657.3 of the
Criminal
    Code
. The issue should also be addressed at the prehearing conference.

(3)

Issue 3: Did the trial judge fail to apply the burden of proof beyond a
    reasonable doubt in finding that it was the two accused who intentionally
    burned the victim?

[85]

The
    appellant submits that the trial judge erred by leaping to the conclusion that
    the two accused were the perpetrators of the burning once he found that the
    burns were not self-inflicted by C.G. He says that the trial judge did not
    articulate how he concluded that the two accused had the exclusive opportunity
    to commit the offence, or the basis of his finding that it was the appellant who
    poured the boiling water on the victim and that C.A. either poured the water as
    well or assisted.

[86]

The
    appellants essential submission is that the trial judge was not entitled to
    use the victims testimony to make any findings without specific corroboration.
    I do not agree.

[87]

The
    trial judge instructed himself clearly and accurately regarding the burden of
    proof on the Crown, and the meaning of reasonable doubt. He stated that he had
    taken into account the whole of the evidence as he was obliged to do. He explained
    that it would amount to a reversal of the burden of proof to look simply at the
    injuries and the evidence of the extreme pain they caused and conclude that no
    one would do that to herself, or that the two accused must have done it because
    they failed to reasonably react to the injuries. Based on the evidence
    describing how C.G. was living with the two accused and under their care, he
    stated that they had the exclusive opportunity to commit the offences. At para.
    38, he identified the live issue as:

[W]hether some or all of the injuries resulted from acts caused
    by the accused as principals or parties to the offence or whether they were
    caused by the complainant or are left unexplained.

[88]

He then reviewed the evidence of all the key witnesses and conducted his
    analysis.

[89]

The trial judge conducted a significant analysis of C.G.s testimony,
    her childlike nature, her ability to understand and her ability to express
    herself, the motivation for her mendacity, and the inconsistencies in her
    testimony.  On the charges where he entered acquittals, he found her testimony
    too confused and conflicting to convict, with no corroborative evidence to
    support it. When he came to assess the evidence on the aggravated assault
    count, he stated that he was unable to conclude that an offence occurred based
    on her evidence standing alone, and that even with confirmatory evidence, he
    had to assess the totality of the evidence that he did accept to determine
    whether the Crown had satisfied its onus beyond a reasonable doubt. He then
    reviewed the relevant evidence of C.G., of C.A., and of the two doctors.

[90]

Because the trial judge necessarily had significant concerns, with C.G.
    as a witness, he subjected her evidence to very careful scrutiny. However, he
    was entitled to accept parts of her story in the context of all of the evidence
    that he did accept.

[91]

The only live issue at trial was whether the harm was self-inflicted or
    perpetrated by the accused. The trial judges statement that they had the
    exclusive opportunity was not in dispute. The trial judge accepted C.G.s
    evidence that it was the two accused who burned her and that it was the
    appellant who poured the boiling water from the kettle. Having found that the
    victim did not pour boiling water on herself, the trial judge was entitled to
    accept C.G.s evidence regarding who poured it on her. He made no error in
    doing so.

(4)

Issue 4: Unreasonable verdict

[92]

This ground of appeal is contingent on the court finding errors in the
    trial judges use of the medical evidence and in misapplying the burden of
    proof on the Crown beyond a reasonable doubt. Had the court found such errors,
    the appellant asks this court to reweigh the evidence and find that the
    appellant should be acquitted.

[93]

As I have found no error by the trial judge, there is no basis to
    consider this ground of appeal.

Conclusion

[94]

I
    would dismiss the appeal.

Released: K.F. July 9, 2018

K. Feldman J.A.

I agree. M. Tulloch J.A.

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





[1]


657.3(3)(b)
(3) For the purpose of promoting the fair,
    orderly and efficient presentation of the testimony of witnesses,

(b) in
    addition to complying with paragraph (a), a prosecutor who intends to call a
    person as an expert witness shall, within a reasonable period before trial,
    provide to the other party or parties

(i) a copy of the report, if any, prepared by the
    proposed witness for the case, and

(ii) if no report is prepared, a summary of the
    opinion anticipated to be given by the proposed witness and the grounds on
    which it is based



[2]


657.3(4) If a party calls a person as an expert
    witness without complying with subsection (3), the court shall, at the request
    of any other party,

(a) grant an
    adjournment of the proceedings to the party who requests it to allow him or her
    to prepare for cross-examination of the expert witness;

(b) order the party
    who called the expert witness to provide that other party and any other party
    with the material referred to in paragraph (3)(b); and

(c) order the
    calling or recalling of any witness for the purpose of giving testimony on matters
    related to those raised in the expert witnesss testimony, unless the court
    considers it inappropriate to do so.


