



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. King, 2019 ONCA 530

DATE: 20190621

DOCKET: C64497

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan James King

Appellant

Jessica Zita, for the appellant

Mabel Lai, for the respondent

Heard and released orally: June 20, 2019

On appeal from the conviction entered on February 4,
    2013, and the sentence imposed on April 12, 2013, by Justice Harrison S. Arrell
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The deceased approached the appellant and his associate, Ryan Fitzpatrick,
    as they were breaking into cars to steal items. The deceased was fatally
    stabbed in the head with a screwdriver. Fitzpatrick testified that the
    appellant struck the fatal blow. The appellant testified that Fitzpatrick had
    done so.

[2]

The appellant raises four grounds of appeal from his conviction for
    second degree murder:

1.

The trial judge
    erred by admitting similar fact evidence;

2.

The trial judge
    erred by failing to give a proper limiting instruction on the use of the
    similar fact evidence;

3.

The trial judge
    erred by permitting a lengthy re-examination of Justin Schultz;

4.

The trial judge
    erred by admitting an autopsy photo.

[3]

The appellant also appeals sentence, arguing that the trial judge erred
    by sentencing him to 15 years parole ineligibility.

(1)

Similar fact evidence

[4]

The appellant submits that the trial judge erred by admitting similar
    fact evidence arising from the evidence of Justin Schultz, who testified that
    after the attack on the deceased, the appellant told him: I did it again.
    Schultz then explained that it referred to an earlier incident, when they had
    been engaged in breaking into and stealing from cars, when the appellant had
    violently struck and injured a passer-by.

[5]

In our view, Schultzs evidence was admissible to explain the
    appellants admission that he had done it again.

[6]

As to the similar fact ruling, counsel concedes that the two incidents were
    sufficiently similar to warrant admission, but argues that the prejudicial
    value of this evidence outweighs its probative effect.

[7]

We do not accept that submission. The similar fact evidence was no more
    prejudicial than any other similar fact evidence. It simply added to the weight
    of the Crowns case. Moreover, as we note below, the jury was appropriately
    cautioned on the proper use of similar fact evidence.

(2)

Similar fact instruction

[8]

The trial judge appropriately cautioned the jury on the use it could make
    of the similar fact evidence. The trial judge instructed the jury that it must
    not use the evidence to conclude that the appellant is a person of general bad
    character or disposition, who likely committed the offence charge because of
    that general bad character. The trial judge also cautioned the jury that it
    must not punish the appellant for that conduct by finding him guilty of the
    offence charge simply because he had done some other thing. We note as well
    that no objection was taken to this aspect of the charge by the appellants
    trial counsel.

(3)

Re-examination

[9]

Defence counsel challenged Schultz at length in cross-examination as to
    his criminal antecedents, prior inconsistent statement, lies and failure to
    come forward. Defence counsel suggested that Schultz had acted in this manner
    because he was lying. Schultzs response was that he had acted in that way
    because he was afraid of the appellant. In re-examination, Crown counsel asked
    Schultz why he was afraid of the appellant. Schultz recounted at some length
    prior acts of violence and discreditable conduct by the appellant. Defence
    counsel eventually objected to this line of questioning and asked for a
    mistrial. The trial judge refused to grant a mistrial. He found that the
    defence had opened the door to this line of questioning by the manner of its
    cross-examination of Schultz. The trial judge stated, however, that the
    questioning had gone on long enough and that it should end. He indicated that
    he would give the jury a
Vetrovec
caution as to Schultzs evidence and
    that he would caution the jury on the narrow purpose for which it could use the
    evidence as to prior acts of discreditable conduct by the appellant.

[10]

The
    trial judge gave a limiting instruction along these lines and defence trial
    counsel raised no objection to the charge on that point.

[11]

We
    see no error on the part of the trial judge. We agree that the defence attack
    on Schultz opened the door to the Crowns line of re-examination. When defence
    counsel objected, the trial judge stopped it. The jury was appropriately
    cautioned on the evidence of Schultz and the limited use it could make of his
    explanation for why he was afraid of the appellant.

(4)

The autopsy photograph

[12]

We
    see no error on the part of the trial judge in admitting the autopsy
    photograph. As the trial judge observed in his ruling, the photograph was not
    gory, grotesque or graphic. The photograph, in our view, provided the jury with
    information from which it could understand and assess the evidence of the
    forensic pathologist as to the nature, mechanism, direction and force of the
    fatal blow and the superficial wounds. We note as well that defence counsel
    relied on the very autopsy photograph that is now objected to in his closing
    submissions to the jury.

(5)

Sentence appeal

[13]

We
    see no error on the part of the trial judge in sentencing the appellant to 15
    years parole ineligibility. This was a brutal and senseless killing of an
    innocent passer-by, and the appellant has failed to identify any error in the
    careful reasons given by the trial judge to explain the sentence he imposed.

Disposition

[14]

Accordingly,
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal from sentence is dismissed.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.


