



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Theoret, 2018 ONCA 700

DATE: 20180828

DOCKET: C59934

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nichole Theoret

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Katie Doherty, for the respondent

Heard: August 20, 2018

On appeal from the convictions entered by Justice Bruce
    Durno of the Superior Court of Justice on May 24, 2013.

REASONS FOR DECISION


[1]

Following a judge alone trial, the appellant was convicted of a number
    of offences, including the aggravated assault of her sometimes girlfriend. The
    appellants position at trial was that the complainants head, facial, neck,
    and body wounds were self-inflicted. Accordingly, the sole issue for resolution
    in relation to the aggravated assault charge was a simple one: did the Crown
    prove beyond a reasonable doubt that the appellant caused the complainants
    multiple and serious wounds? The trial judge answered that question in the
    affirmative.

[2]

The appellant maintains that the trial judge erred in taking judicial
    notice of two things: (a) the cause of the complainants bruising; and (b) the
    effect of the blood stain close to the complainants bed. The appeal was
    dismissed at the conclusion of oral argument with written reasons to follow.
    These are those reasons.

[3]

Context is important.

[4]

On the night of the offence, the appellant, the complainant, and the
    complainants uncle were drinking together. The complainant fell asleep in her
    bed. She awoke to find the appellant kneeling over her, expressing concern over
    the fact that the complainant was not wearing a necklace that the appellant had
    given to her. The complainant testified that about thirty seconds after she was
    awoken, the appellant started punching her in the face and head. The appellant
    grabbed the complainants hair, arms, neck, and wrists. The appellant was
    wearing rings at the time of the alleged assault, one of which was found to
    have the complainants blood on it.  The assault was said to have lasted for a
    few minutes, at which time the appellant bolted from the home.

[5]

The complainant had to spend two or three days in the hospital. Her
    injuries included several gashes that required stiches to her forehead, her eye
    area and behind her ear, significant bruising, an edema on her forehead, cuts
    to her neck, scalp, and face (that did not require stitches), swelling on her
    scalp, and tenderness in her collarbone area. She also had bruising on her arms
    and one of her legs, although she could not recall if the leg bruise was caused
    by the appellant.

[6]

The complainants injuries are captured in colour photographs that were
    filed as exhibits at trial and available for the trial judges consideration. If
    inflicted by the appellant, the seriousness of the complainants injuries
    easily fell into the category required for an aggravated assault. This brings
    us to the question on appeal: did the trial judge err in rejecting the position
    that the complainant caused her own injuries, instead concluding that they were
    caused by the appellant?

[7]

The appellant maintains that the trial judge erred in taking judicial
    notice of matters that required expert evidence. In particular, the appellant
    says that the trial judge erred in drawing inferences from the complainants
    bruising and blood splatter evidence. The appellant asserts that the trial
    judges conclusions were beyond what common sense and human experience would
    permit. Although we agree that trial judges cannot take judicial notice of
    matters that are properly the subject of expertise, we disagree that the trial
    judge did so.

[8]

In his careful and considered reasons, Durno J. did exactly what is
    asked of trial judges. His findings involved neither judicial notice, nor
    subjects invoking a need for expert evidence. He considered the entirety of the
    evidence before him, and drew inferences from the evidence by applying common
    sense and human experience. Considered in context, his findings were nothing
    more than inferences that were available to him on the whole of the evidence.
    They did not require expert clarification or comment.

[9]

In particular, the trial judge gave multiple reasons for why he rejected
    the suggestion that the complainant had inflicted her own wounds, including
    that, on this record, some degree of force had to have been applied to the
    complainants face. Having regard to the multiple, graphic photographs filed at
    trial, this does not seem like a controversial proposition. Indeed, the
    appellants trial counsel agreed, noting that some of the facial bruising was
    caused as a result of force beyond the cutting.

[10]

Having
    regard to the totality of the evidence, the trial judge found that the
    suggestion that the complainant could have caused the injury to herself became
    increasingly unlikely. Based upon the location of the injuries, as depicted
    in the photographs, it was open to the trial judge to conclude that the complainants
    injuries were consistent with her version of events. Accordingly, and
    understandably, the trial judge concluded that for the complainant to have done
    all of that to herself would have been truly remarkable. Despite the
    complainants admission of previous self-harming conduct, this was nothing more
    than a common sense conclusion. Even assuming that there is an expert who could
    opine on such matters, in the circumstances of this case, given the multiple
    cuts, bruises, scratches and wounds, it was unnecessary to have an expert
    testify.

[11]

The
    same is true of the trial judges conclusion regarding the evidence of blood.
    The appellant maintains that the trial judge erred in his conclusion regarding
    blood stains close to the complainants bed. The impugned passage in the
    reasons for judgment reads:

I also consider photographs 25, 30, and 31  that shows
    bloodstains to the right of the bed and the part of the bed that is probably
    closest to the bathroom. These appear to be droplets of blood, many of which
    are smeared. While I appreciate again theres no blood splatter expert about
    the direction of movement or how the stains got there, that some drops of blood
    are smeared is not inconsistent with [the complainants] trial evidence, albeit
    a second version, that she may have crawled over the bed and crawled to the
    bathroom over that area.

[12]

The
    appellant argues that this conclusion overreached because: (a) it relied on the
    complainants evidence, which was of questionable quality; and (b) expert
    evidence was required in order to comment on whether the blood stain was
    consistent or inconsistent with the complainants movements. We do not agree.

[13]

First,
    the quality of the complainants evidence was entirely within the domain of the
    trial judge. His thorough reasons demonstrate that he was alive to the need for
    caution and he specifically addressed those concerns. Second, the trial judges
    comment was rooted in the mere observation that smeared blood was not
    inconsistent with someone having crawled through the blood. It was open to
    the trial judge to make that observation. He did not go further and suggest
    that the blood pattern was consistent with the complainants version of events.

[14]

For
    these reasons, the conviction appeal was dismissed.

David Watt J.A.
Grant Huscroft J.A.
Fairburn J.A.


