



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 359

DATE: 20160510

DOCKET: M46451 (C62086)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Appellant (Applicant)

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 9, 2016

ENDORSEMENT

[1]

The appellant, April Luckese, was convicted on March 16, 2016 by Justice
    G. Lemon of manslaughter in the death of 14-month old Duy-An Nguyen, an infant
    placed at the day care she operated: 2016 ONSC 1206. On May 9, 2016, Ms.
    Luckese was sentenced to six years in jail, less credit of 24 days for
    pre-sentence custody: 2016 ONSC 2812. Ms. Luckese applies for bail pending the
    hearing of her appeal pursuant to s. 679(1)(a) of the
Criminal Code
.

[2]

The Crown opposes her application. The Crown concedes that Ms. Luckeses
    appeal is not frivolous and that she will surrender herself into custody in
    accordance with the terms of any release order. It is the Crowns submission
    that Ms. Luckese has failed to establish that her detention is not necessary in
    the public interest, as required by s. 679(3)(c).

[3]

For the reasons set out below, I accept the Crowns submission and dismiss
    the application.

THE GOVERNING PRINCIPLES

[4]

The parties agree that the applicable law is set out in
R. v.
    Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 48, where this
    court described the factors involved in balancing the conflicting principles of
    the enforceability and reviewability of judgments:

The "public interest" criterion in s. 679(3)(c) of
    the
Code
requires a judicial assessment of the need to review the conviction
    leading to imprisonment, in which case execution of the sentence may have to be
    temporarily suspended, and the need to respect the general rule of immediate
    enforceability of judgments.

Public confidence in the administration of justice requires that
    judgments be enforced. The public interest may require that a person convicted
    of a very serious offence, particularly a repeat offender who is advancing
    grounds of appeal that are arguable but weak, be denied bail. In such a case,
    the grounds favouring enforceability need not yield to the grounds favouring
    reviewability.

On the other hand, public confidence in the administration of
    justice requires that judgments be reviewed and that errors, if any, be
    corrected. This is particularly so in the criminal field where liberty is at
    stake. Public confidence would be shaken, in my view, if a youthful first
    offender, sentenced to a few months' imprisonment for a property offence, was
    compelled to serve his or her entire sentence before having an opportunity to
    challenge the conviction on appeal. Assuming that the requirements of s.
    679(3)(a) and (b) of the
Criminal Code
are met, entitlement to bail is
    strongest when denial of bail would render the appeal nugatory, for all
    practical purposes.

[5]

The public interest ground takes on particular importance in cases
    where an applicant has been convicted of a very serious offence and faces the
    prospect of a lengthy period of incarceration:
R. v. Baltovich
(2000), 47 O.R. (3d) 761 (C.A.), at para. 19. At the same time, appellate
    courts have recognized that, where the grounds of appeal are strong and where
    there is serious concern about the accuracy of the verdict, the public interest
    may well shift in favour of release even for serious crimes:
Baltovich
,
    at para. 20.

THE CENTRAL ISSUE ON THE APPLICATION

[6]

Ms. Luckese submits that her detention is not necessary in the public
    interest for several reasons: (i) she has strong grounds of appeal; (ii) she
    complied with all terms of her pre-sentence release orders; and (iii) in his
    reasons for sentence, the trial judge described her as a respected day care
    provider and the events at issue were entirely out of character for her: at
    paras. 2 and 15.

[7]

In response, the Crown submits that Ms. Luckese has been convicted of a
    very serious offence and sentenced to a long prison term. Although her grounds
    of appeal are not frivolous, the Crown argues they are weak.

[8]

Several factors relevant to the
Farinacci
analysis are not in
    dispute. Although not a repeat offender, Ms. Luckese was convicted of a very
    serious offence: the manslaughter of a vulnerable infant in her care. As well,
    Ms. Luckese has received a lengthy sentence of six years imprisonment, so this
    is not a case where the denial of bail would render her appeal nugatory. Given
    the seriousness of the offence, in my view the assessment of the public
    interest factor really turns on the strength or weakness of the grounds Ms.
    Luckese intends to advance on her appeal. Before considering them, it is
    necessary to review briefly the reasons of the trial judge.

THE REASONS OF THE TRIAL JUDGE

[9]

The evidence was described at length in the trial judges reasons.
    Briefly, January 5, 2011 was the second day 14-month old Duy-An had been left
    in the care of Ms. Luckese. On that day, Duy-An suffered a severe head injury
    while at the day care, specifically a 2.5 cm fracture of the skull at the back
    of her head. Despite medical care over the next two days, including surgery,
    Duy-An died on January 7.

[10]

The issue at trial was whether Duy-Ans injuries were the result of an
    accident or a trauma inflicted to her head. The Crown called expert medical
    testimony and relied heavily on statements Ms. Luckese made to several police
    officers and others. Ms. Luckese did not testify at the trial.

[11]

At trial, a police officer, Detective Thomson, testified that during a
    trip in the police cruiser to the police station, he recorded Ms. Luckese as
    saying: I know it is wrong. I just snapped. I guess I hit a breaking point.

[12]

The trial judge relied, in part, on that statement in finding Ms.
    Luckese guilty of manslaughter. At paras. 137-38 of his reasons, the trial
    judge wrote:

Similarly, the Crown submits that I can draw the inference that
    Ms. Luckese lost her patience and struck the child since she was taking care of
    seven children under three years of age; Duy-An was new to the day care and
    apparently had very little English; she had been crying throughout her stay and
    had apparently awoken when all of the children should have been asleep. 
    Combined with Ms. Luckeses statement to Detective Thomson in his cruiser, this
    is the inference that I can draw.

I find that Ms. Luckese, as she said to Detective Thomson and
    Mr. Doyle, momentarily lost her patience with Duy-An and assaulted her, causing
    the skull fracture. There is no other rational explanation for the skull
    fracture and undisputed symptoms. That illegal act led to the death of Duy-An. 
    Ms. Luckese is guilty of manslaughter.

[13]

The trial judge also found Ms. Luckese guilty of manslaughter on another
    basis. He concluded that Ms. Luckese had failed to provide Duy-An with the
    necessaries of life because she did not call for emergency medical care when
    she first observed that the child was unresponsive. This led the trial judge to
    make the following findings at paras. 160-61 of his reasons:

Based on the medical evidence set out above, I find that
    Duy-Ans death occurred because of a lack of oxygen to her brain.  That lack of
    oxygen came from the skull fracture and the passage of time.  Ms. Luckese knew
    the cause of that skull fracture. Her failure to act added to that passage of
    time.  On this evidence, I am satisfied that the delay in treatment was a
    significant contributing cause to Duy-Ans death.

I am satisfied beyond a reasonable doubt that Ms. Luckese
    failed to perform her duty to provide the necessaries of life to Duy-An which
    was a significant cause of her death.  Ms. Luckese is guilty of manslaughter on
    that basis as well.

ANALYSIS OF THE GROUNDS OF APPEAL

[14]

Ms. Luckese intends to advance three grounds of appeal - two in respect
    of the trial judges finding that she assaulted Duy-An,  and one in respect of
    his finding that she failed to provide the necessaries of life. As to the
    finding of assault, Ms. Luckese submits that trial judge made two errors: (i)
    he erred in his use of the good character evidence Ms. Luckese adduced at
    trial; and (ii) he erred in admitting the statement Ms. Luckese made to Detective
    Thomson in the cruiser on the return to the police station. As to the finding
    that she failed to provide the necessaries of life, Ms. Luckese submits that
    the trial judge misapprehended the evidence regarding causation. I shall
    examine each proposed ground of appeal in turn.

The use of good character evidence

[15]

At trial, Ms. Luckese called seven witnesses to testify about her
    reputation as a day care provider. The trial judge noted, at para. 123: They
    described her and her reputation as kind, loving, caring, calm, patient,
    responsible, dependable and open. The Crown does not deny that she was all of
    that over her career as a care provider.

[16]

Evidence of an accuseds good character is relevant not only to support
    the accuseds credibility as a witness, but also to support an inference that
    the accused is unlikely to have committed the offence charged: Sidney N.
    Lederman, Alan W. Bryant, Michelle K. Fuerst,
Sopinka, Lederman &
    Bryant,
The Law of Evidence in Canada,
4th ed. (Markham: LexisNexis Canada Inc., 2014)
, at para. 10.43;
R. v. Logiacco
(1984), 2 O.A.C. 177, at para. 11. Ms. Luckese did not
    testify at trial, so the defence sought to use the evidence of her good
    character for the second purpose. The trial judge understood the defences
    position for he wrote, at para. 125: [the] defence submits that given the
    character evidence that was called, it is unlikely that she would have
    committed the offence charged.

[17]

Ms. Luckese submits that the trial judge erred in how he used the
    evidence of her good character. She points to para. 136 of the trial judges
    reasons where he wrote:

[Ms. Luckeses] character evidence shows that she was an
    exemplary day care provider and had experience dealing with children in their
    early days in her care. However, how she had dealt with other children, in
    other circumstances, is not of great significance to me in this case relating
    to this child on this day. I cannot draw the inference that because she worked
    well with other children on other days,
she
    could not have assaulted this child
. [Emphasis added.]

[18]

Ms. Luckese contends that the trial judge misstated the law. Instead of
    considering whether the evidence of her good character could support an
    inference that she was unlikely to have committed the offence, the trial
    judge erroneously considered whether the evidence would support an inference that
    she could not have assaulted Duy-An.

[19]

The Crown argues that the language used by the trial judge to describe
    the law echoes that used by the Supreme Court of Canada in
R. v. Charlebois
,
    2000 SCC 53. [2000] 2 S.C.R. 674. There, in his discussion of the trial judges
    charge on the issue of good character evidence, Bastarache J. stated for the
    majority, at para. 30:

The evidence of good character sheds little light on this
    question.  This is not a case where the actions of the accused are in doubt;
    rather it is only his mental state which is under consideration.  Given the
    evidence, the argument that the accused
could
    not have committed murder

because he was of good character has
    little significance. [Emphasis added.]

[20]

I accept the Crowns characterization of this ground of appeal as
    arguable, but weak. The trial judge understood the use the defence advocated
    for the evidence of Ms. Luckeses good character, but he was not prepared to
    give it great significance. In so doing, the trial judge employed language
    about the use of good character evidence similar to that found in the
Charlebois
decision. Whether the trial judges treatment of the evidence of good conduct,
    when viewed in the entirety of his reasons, was correct or not may reach the
    threshold of an arguable point of law, but it does not fall at the strong end
    of the spectrum.

Ms. Luckeses statement to Detective Thomson in
    the police cruiser

[21]

The police conducted a videotaped interview with Ms. Luckese on the day
    of the incident. Following the interview, they took her back to the day care to
    walk through the events of the day. On the return trip to the police station,
    Detective Thomson asked her some questions. He recorded Ms. Luckese as saying:
    I know it is wrong. I just snapped. I guess I hit a breaking point. The
    exchange in the police cruiser was not videotaped.

[22]

On a
voir dire
, the defence argued that the statement should be
    excluded because it had not been videotaped. The trial judge agreed that the
    police ought to have videotaped the statement. But, relying on the decision of
    this court in
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont.
    C.A.), the trial judge held that there was no absolute rule requiring the
    recording of statements. After reviewing all of the evidence surrounding the
    making of the statement, the trial judge concluded that Ms. Luckese had made
    the statement voluntarily and he admitted it.

[23]

Ms. Luckese acknowledges that trial judge followed and applied the law
    as it currently stands. However, on appeal she will be asking this court to
    change the law as stated in
Moore-McFarlane
and, instead, to adopt a
    rule of automatic exclusion of statements made, but not recorded, following an
    earlier videotaped statement given by a person.

[24]

In response, the Crown points out that as recently as the case of
R.
    v. Williams
, 2014 ONCA 431, 313 C.C.C. (3d) 51, at paras. 43-44, this
    court applied the principle stated in
Moore-McFarlane
that there is no
    absolute rule requiring the police to record an accuseds statements.

[25]

It is certainly open to Ms. Luckese to ask this court to reconsider and
    change the principle stated in
Moore-McFarlane
. But, in the absence of
    any prior suggestion by this court that it is open to reconsidering the
    principle in an appropriate case, I cannot treat this ground of appeal as a
    strong one for the purposes of this application.

[26]

In sum, both grounds of appeal advanced by Ms. Luckese to challenge the
    trial judges finding that she assaulted Duy-An are not frivolous, in the sense
    that they are arguable, but they are not strong grounds of appeal.

Causation

[27]

In respect of the trial judges conclusion that Ms. Luckeses delay in
    seeking emergency medical care for Duy-An was a significant contributing cause
    of her death, the appellant submits that the trial judge misapprehended the
    evidence given by Dr. Abhaya Kulkarni, both in his expert report and in his
viva
    voce
testimony at trial. Ms. Luckese submits that the Crown did not prove
    beyond a reasonable doubt that the delay in seeking medical care for Duy-An was
    a significant contributing cause of her death.

[28]

The Crown did not make any responding submissions on this point.

[29]

The bail application record does not contain Dr. Kulkarnis report or
    the transcripts of his evidence at trial. I therefore cannot review the
    doctors evidence in its entirety. Given those limitations of the record before
    me, it is not possible to assess the strength or weakness of this ground of
    appeal.

Conclusion

[30]

The grounds of appeal advanced by Ms. Luckese in respect of the finding
    of assault by her on Duy-An are arguable, but not strong. I am unable to assess
    the ground of appeal concerning the causation issue. Given the seriousness of
    the offence for which the trial judge convicted Ms. Luckese, this is not a case
    where strong grounds of appeal exist that would favour the reviewability factor
    in the
Farinacci
analysis.

DISPOSITION

[31]

The offence for which Ms. Luckese was convicted is a most serious one. A
    lengthy term of imprisonment has been imposed. Her grounds of appeal are not
    strong, based on the record before me. Consequently, I conclude that Ms.
    Luckese has not demonstrated that her detention is not necessary in the public
    interest.

[32]

Accordingly, I dismiss the application of Ms. Luckese for bail pending
    appeal.

David Brown J.A.


