



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bye, 2017 ONCA 528

DATE: 20170626

DOCKET: C58843

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Bye

Appellant

Timothy E. Breen, for the appellant

Shawn Porter, for the respondent

Heard: June 20, 2017

On appeal from the conviction entered by Justice J.R.
    McIsaac of the Superior Court of Justice, sitting with a jury, dated October
    17, 2013.

REASONS FOR DECISION

[1]

The appellant, David Bye, and Robin Browett, were cellmates at the
    Central North Correctional Centre. On December 13, 2011, the unit was on
    lockdown. The two inmates had been confined to cell 10 for more than 24 hours. As
    corrections officers began a cell by cell search of the unit for contraband, they
    began with the cell next to the appellants. While performing that search, they
    were summoned to cell 10 by the appellant, who was yelling that Mr. Browett had
    passed out. When they entered the cell, they discovered the appellant holding
    Mr. Browett, who was lying on the floor and shaking, with obvious head trauma. Mr.
    Browett was transported to hospital and underwent surgery to relieve pressure
    caused by a subdural hemorrhage. He had a large skull fracture on the right
    side of his head and a small contusion on the opposite side of his brain,
    attributed to the brain bouncing against the opposite side of the skull. The
    surgeon who performed the surgery was of the opinion that a significant amount
    of force would be required to cause such a fracture, and although such an
    injury could conceivably result from falling, it was unlikely that a single fall
    would result in the injuries observed.

[2]

The appellant denied assaulting Mr. Browett. Mr. Browett, who was
    conscious before being transported to hospital, also denied being assaulted.

[3]

The appellant was convicted by a jury of aggravated assault. He appeals
    his conviction on the basis that the trial judge made the following errors:

1.       admitting
    expert evidence on the identification of footwear impressions on Mr. Browetts
    face, and failing to caution the jury on the use of that evidence;

2.       failing
    to adequately instruct the jury on the use of inconsistencies in the
    appellants statements as evidence of guilt;

3.       not
    providing a proper response to the jurys request for a legal definition of
    reasonable doubt.

For the reasons set out below, we do not agree that the
    trial judge erred, and would dismiss the appeal.

Analysis:

(1)

Admissibility of expert evidence

[4]

John Norman, a civilian employee of the O.P.P, was qualified to give
    expert opinion evidence in relation to footwear examination and comparison. He
    addressed two issues: (1) whether there was evidence of footwear impressions on
    Mr. Browetts face, and (2) whether shoes located in the cell could be identified
    as the source of the impression. From his review of photographs of Mr.
    Browetts face, Mr. Norman concluded that the pattern of bruising could be
    footwear impressions. He also concluded that he could not rule out one of Mr.
    Browetts shoes found in the cell as the cause of the impressions on Mr.
    Browetts face.

[5]

The trial judge admitted the evidence and, in his charge to the jury,
    characterized Mr. Normans findings as inconclusive and, as such, may not be
    of any assistance in resolving this case.

[6]

The appellant objected to the admission of this expert evidence on the
    basis that it failed to meet the requirements of logical and legal relevance,
    in part, because the photograph from which Mr. Norman worked was taken four
    days after Mr. Browetts admission to hospital, and because there was no
    evidence of the effect of surgery on the appearance of Mr. Browetts face. We
    disagree. A visible pattern of bruising was evident in the photographs.

[7]

Neither are we persuaded by the appellants submission that Mr. Normans
    opinion was so uncertain that it was legally irrelevant. The evidence was inconclusive,
    but given that the event took place in a prison cell, with a small number of
    possible causes, the evidence that Mr. Browetts injuries were consistent with having
    been struck in the head by a shoe, was legally relevant.

[8]

We also reject the argument that Mr. Normans evidence was so
    prejudicial that if it was admitted, it required a much stronger caution to the
    jury about its limited relevance. The trial judges charge to the jury tracked
    the wording of Laskin J.A. in
R. v. Ferguson
(1999) 142 C.C.C. (3d) 353
    at para 67 approved by the Supreme Court at (2001) 152 C.C.C. (3d) 95. In
    addition, the appellants submission is nearly self-refuting. He could
    plausibly argue that the evidence was so uncertain as to be useless (a
    conclusion that the trial judge left open to the jury), or that the evidence
    was so powerful as to be dispositive. He cannot argue both.

(2)

Charge to the jury: after the fact conduct

[9]

After initially summoning the corrections officers, the appellant made
    four statements concerning what happened. Although the statements differ in
    detail of what the appellant was doing at the time of Mr. Browetts injury, where
    he was in the cell, and whether he witnessed Mr. Browett fall or merely heard
    him fall, counsel for the appellant stresses their consistency: all of his
    accounts have Mr. Browett falling to the ground and striking his head while the
    appellant was otherwise occupied.

[10]

The appellant argues that the inconsistencies among his various after
    the fact statements were not sufficiently material to support an inference of
    fabrication, and thus of guilt. He argues in the alternative that if the
    statements were capable of supporting an inference of guilt, the charge to the
    jury was inadequate, as it failed to consider innocent explanations for the
    appellants false statements such as, for example, that he was motivated by
    desire to conceal his efforts to destroy contraband, rather than by his desire
    to conceal his involvement with an assault.

[11]

Again, we do not accept this submission. Contradictory exculpatory
    statements of an accused may constitute independent evidence of fabrication:
R.
    v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d), at para. 288. Additionally, it
    was open to the jury to conclude from the surrounding circumstances that the
    statements were fabrications. The repeated assertion that Mr. Browett fell in
    his cell was not supported by the medical evidence and was simply not
    believable. The timing of the appellant raising the alarm was suspect: it is suspicious
    that Mr. Browett would have fallen immediately before the cell was to be
    searched, particularly given that corrections officers were in the next cell at
    the time and heard nothing.

[12]

Additionally, in this case it is significant that the appellants trial
    counsel made no objection to the charge to the jury with respect to the four
    statements. That was a tactical decision. The appellants trial counsel
    stressed the consistency and truth of the appellants statements that he did
    not assault Mr. Browett. It would not have served the appellants purpose for
    the trial judge to have drawn further attention to the ways in which the
    appellants statements diverged from each other.

(3)

Jury re-charge on reasonable doubt

[13]

The appellant argues that the trial judge erred when responding to one
    of the jurys questions during deliberations. The question asked the judge to
    Please define reasonable doubt as defined by the law. The trial judge
    responded by re-reading his charge on reasonable doubt. Although asked by the
    appellant to do so, he did not also include an instruction on the principles
    from
R. v. W.(D.)
, [1991] 1 S.C.R. 742. A
W(D)
instruction had
    been included in the main charge.

[14]

Again, we see no merit in this submission. This court has held that
    although it is preferable in many circumstances to include a renewed
W(D)
instruction in response to a jury question about standard of proof, it is not
    strictly necessary in response to a question about the meaning of reasonable
    doubt, standing alone from any question about credibility:
R. v. M.C.M.
(2003),
    176 C.C.C. (3d) 263, at para. 45;
R. v. T.(M.)
, 2012 ONCA 511, 289
    C.C.C. (3d) 115, at paras. 117, 124.

Disposition

[15]

The appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


