



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hong, 2019 ONCA 170

DATE: 20190306

DOCKET: C62357

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tin Wai Hong

Appellant

Delmar Doucette and Angela Ruffo, for the appellant

Elise Nakelsky, for the respondent

Heard: February 4, 2019

On appeal from the conviction entered on November 21,
    2015, by Justice R. Cary Boswell of the Superior Court of Justice.

Sharpe J.A.:

[1]

The appellant and his three co-accused, Nathaniel Cain, Mason
    Gillard-Gatza and Raphael Guerra, drove from Scarborough to Minden, Ontario
    where they committed a home invasion robbery. The appellant was the instigator
    of the robbery. The robbery took place at the home of Justin McKelvey, a man the
    appellant believed to be a marijuana trafficker in possession of both drugs and
    cash. Two men were present in the home, McKelvey and his friend Ryan Kennedy.
    During the robbery, Kennedy was killed having been struck twice on the top of
    his head with a baseball bat by Gillard-Gatza and in the jaw by the appellant
    with the butt of a pellet gun. McKelvey was seriously assaulted. The appellant
    and his three co-accused were all charged with first degree murder in the death
    of Kennedy and with attempted murder of McKelvey.

[2]

The jury convicted the appellant of second degree murder in the death of
    Kennedy. He appeals arguing that there was insufficient evidence to support a
    finding that the blow to Kennedys jaw was a significant contributing cause of
    death and that a statement by the trial Crown in his closing caused a miscarriage
    of justice.

[3]

For the following reasons, I would dismiss the appeal.

Facts

[4]

Upon arrival at Kennedys house, the appellant, Gillard-Gatza and Cain, got
    out of the vehicle and entered the house with their faces concealed. The
    appellant was carrying a can of bear spray, Cain, duct tape and a plastic
    paddle he picked up outside the house, and Gillard-Gatza an aluminum baseball
    bat that he had brought to the robbery.

[5]

Immediately upon entering the home, the appellant confronted McKelvey,
    said This is a robbery and punched McKelvey in the face. Kennedy started to
    move toward the appellant. Cain hit Kennedy on the arm or side with the plastic
    paddle and then grappled with him. Gillard-Gatza delivered two forceful blows
    to the top of Kennedys head with the baseball bat. Kennedy stumbled and fell
    to the ground. Gillard-Gatza struck McKelvey two or three times on the back
    with the bat. The appellant demanded to know where the money and marijuana were
    hidden.

[6]

At this point Kennedy was on the floor in a semi-conscious state making
    sounds described as gurgling, snoring or moaning. The appellant went
    looking for the money and the marijuana and when he returned, knocked over a
    water cooler that struck Kennedy on the head. Gillard-Gatza tried to duct tape
    Kennedys hands but one arm was stiff. The appellant told Cain to get Kennedy
    to shut up. Cain struck Kennedy in the right side of his head between the ear
    and the crown with the butt end of a pellet gun. Kennedy kept making noises.
    The appellant then said that he would show Cain how to shut Kennedy up, took a
    golf-like swing with the pellet gun and struck Kennedy in the face with the butt
    of the gun. The blow broke Kennedys jaw bilaterally and was sufficiently
    strong to crack open the barrel of the pellet gun. At that point, Kennedy
    stopped making any sounds or movements. The appellant then struck McKelvey
    about the head with his fists.

[7]

Gillard-Gatza testified that he believed that the blows he delivered
    with the bat had killed the victim. However, he testified that he lacked the
    intention to kill or cause grievous bodily harm that he knew was likely to
    cause death.

[8]

The pathologists evidence was that the most likely cause of Kennedys
    death was two blunt force blows to the dome or top of the victims head. He
    testified that the sounds Kennedy made before the appellant stuck him with the
    pellet gun were symptomatic of an unconscious person dying from brain damage.
    The pathologist testified that the victim also sustained a fractured jaw. While
    he could not exclude the impact that caused the broken jaw as a contributing
    cause to the brain injury, he thought it unlikely. He was not asked if the golf-swing
    blow could have accelerated Kennedys death.

[9]

The Crowns position at trial was that the murder was planned and
    deliberate in that the accused intended to rob McKelvey and leave no witnesses
    alive. The appellant, Gillard-Gatza, and Cain conceded their guilt for
    manslaughter and assault causing bodily harm. The three co-accused testified
    but the appellant did not.

[10]

Guerra
    acted as the driver and he remained in the car. He testified that he knew
    nothing of any plan to commit robbery and that he had been duped into
    participating. The jury acquitted him of all charges.

[11]

The
    jury acquitted Gillard-Gatza and Cain of murder but convicted them of
    manslaughter in the death of Kennedy. Similarly, the jury acquitted them of
    attempted murder but convicted them of assault causing bodily harm in relation
    to McKelvey.

[12]

The
    jury convicted the appellant of second degree murder in the death of Kennedy.
    The jury acquitted the appellant of attempted murder but convicted him of
    assault causing bodily harm in relation to McKelvey.

Issues

[13]

The
    appellant raises two grounds of appeal from the murder conviction.

1. 
         The jurys finding that the appellants acts were a significant contributing
    cause of Kennedys death is unreasonable.

2.
          A statement made by the trial Crown in his closing address caused a
    miscarriage of justice.

Analysis

(1)

Unreasonable verdict

[14]

At
    the trial crowns request, the trial judge did not instruct the jury that the
    appellant could be convicted of murder under s. 21(2) of the
Criminal Code

on the basis that he had formed an intention in common with Cain and
    Gillard-Gatza to commit robbery and knew that murder would be a probable
    consequence. This left three possible bases to convict the appellant of murder:
    first, under s. 21(1)(b) or (c), that he aided and abetted Cain or
    Gillard-Gatza; second, that he was a joint principal under s. 21(1)(a); or
    third, that he was a sole principal.

[15]

I
    agree with the appellant that given the trial judges instruction to the jury
    on aiding and abetting and liability as a joint principal, the jurys verdict
    of guilty of second degree murder must be assessed on the basis that the jury
    found him to be a sole principal.

[16]

The
    trial judge instructed the jury that the appellant could only be convicted as
    an aider and abettor if the jury also convicted one of his co-accused of
    murder. As the jury acquitted the appellants co-accused of murder and, as we
    must assume for the purposes of this appeal that the jury followed the trial
    judges instruction, the jury could not have convicted the appellant as an
    aider and abettor.

[17]

Similarly,
    the trial judge instructed the jury that the appellant could be convicted as a
    joint principal only if he had a common intention to commit murder with one of
    his co-accused. The acquittals of Cain and Gillard-Gatza can only be explained
    on the basis that the jury had a reasonable doubt that they had the requisite
    intent to commit murder. It follows that the jury could not have found that the
    appellant had a common intention with them to commit murder.

[18]

The
    respondent Crown takes issue with the trial judges instructions on liability
    on the basis of aiding and abetting or being a joint principal. The respondent
    argues that these instructions set the bar too high and that the appellant
    could have been convicted as an aider and abettor or joint principal even if
    his co-accused were acquitted. The respondent further submits that in the case
    of a joint attack, a common intention to commit murder is not required, nor is
    it necessary to prove that the accuseds act was a significant contributing
    cause of death.

[19]

I
    find it unnecessary to deal with these submissions. In my view, it is both
    possible and appropriate to decide this appeal on the basis that the jury did
    follow the trial judges instructions and therefore must have convicted the
    appellant as a sole principal.

[20]

The
    standard for setting aside a jury verdict as unreasonable is high. The question
    is whether the verdict is one that a properly instructed jury acting
    judicially, could reasonably have rendered:
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 36.

[21]

The
    appellants submission that the verdict was unreasonable centres on the
    pathologists evidence that the likely cause of death was brain injury caused
    by the two blows to the top of Kennedys head and that it is unlikely that the
    blow the appellant delivered to the side of Kennedys jaw materially
    contributed to the brain injury.

[22]

As
    the trial judge observed in his reasons for sentence, reported at 2016 ONSC
    2654, it is almost certainly the case that the jury found that the golf-swing
    to Kennedys face did accelerate and contribute significantly to Kennedys
    death. He added that he agreed with that finding: paras. 26-28. We are, of
    course, not bound by the trial judges sentencing reasons and I recognize that
    the trial judge was bound in his reasons for sentence by the express and
    implied factual implications of the jurys verdict:
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. We are, however, entitled to look
    at those reasons when assessing whether there is a basis for finding that the
    jurys verdict was reasonable:
R. v. Tillekaratna
(1998), 124 C.C.C.
    (3d) 549 (Ont. C.A.), at paras. 6-11.

[23]

In
    my view, it was open on the evidence for the jury to conclude that the blow
    struck by the appellant with the pellet gun was a significant contributing
    cause of death. The pathologists evidence certainly supported the inference
    that before he was struck in the jaw with the pellet gun, Kennedy was dying.
    However, the noise he was making indicated that he was still alive. There is no
    doubt that if the appellants blow accelerated Kennedys death, that blow would
    meet the legal definition of a significant cause of death:
R. v. Talbot
,
    2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 81. Before the appellant struck
    Kennedy with the pellet gun, Kennedy was alive, moving and making noises. After
    the blow was delivered, Kennedy went silent and stopped moving. The jury was
    entitled to take that evidence into account when considering whether the
    golf-swing blow had accelerated Kennedys death. The pathologist was not asked
    whether the golf-swing blow could have accelerated Kennedys death.
    Accordingly, I do not accept the contention that the pathologists evidence
    makes the jurys verdict unreasonable. Moreover, even if the jury made a
    finding contrary to the pathologists evidence, as stated in
R. v. Smithers
,
    [1978] 1 S.C.R. 506, at p. 518, The issue of causation is for the jury and not
    the experts.
Smithers
establishes that the jury is entitled to decide
    how much weight to give to expert evidence and to accept or reject both expert
    and lay evidence: p. 518.

[24]

I
    add that the reasonableness of the jurys finding that the appellants act of
    striking Kennedy in the jaw with the pellet rifle was a significant cause of
    Kennedys death must be assessed in the light of the entire record:
R. v.
    A.G.
, 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6. The appellant was the
    instigator and leader of the home invasion. He unleashed the pattern of
    violence against the occupants of the house as soon as he entered the house. He
    was an active participant in the vicious assault on Kennedy that followed. He
    urged Cain to make Kennedy shut up as Kennedy was lying on the floor helpless
    and moaning. He then struck Kennedy with a vicious blow that finally did
    silence him.

[25]

Finally,
    I do not accept the appellants submission that the decision of this court in
R.
    v. Talbot
governs the outcome of this appeal.
Talbot
was a Crown
    appeal from a jury acquittal on a charge of murder. During an altercation with
    the victim, the appellant struck the victim with a single punch. The victim hit
    his head on the pavement when he fell to the ground. The appellant then kicked
    the victim in the head. The pathologists evidence was that the cause of death
    was the blunt force injury to the back of the victims head resulting from the
    fall to the ground following the single punch. He testified that it was
    possible but unlikely that the kick was a contributing cause of death.

[26]

The
    appellant relied on self-defence. The trial judge instructed the jury that if
    they found the kick was a cause or had contributed to the death in a material
    way, they would have to assess the appellants state of mind in relation to
    self-defence at the time he delivered the kick.

[27]

The
    Crowns central argument on appeal was that the trial judge should have
    instructed the jury that as a matter of law the punch and the kick were both
    part of one single transaction. Doherty J.A., writing for the court, accepted
    that submission but concluded that it made no difference as it was clear from the
    questions the jury asked and the verdict that the jury found that the punch was
    the sole cause of death.

[28]

The
    appellant relies upon Doherty J.A.s added statement that, in any event, if the
    Crown sought to rely on the kick as a contributing cause of death, it was
    incumbent on the Crown to prove that fact and that, without some supporting
    medical evidence, the jury would not have been able to conclude that the kick
    was a cause of death:
Talbot
, at paras. 82-83. In my view, that
    statement is nothing more than an
obiter

observation about the
    facts of
Talbot
.
Talbot
does not establish that as a matter
    of law, and contrary to
Smithers
, that a jury can only find causation
    where there is medical evidence to support such a finding. As Doherty J.A. himself
    stated in
R. v. Pocock
, 2015 ONCA 212, 19 C.R. (7th) 60, at para. 19,
    
Nothing in
Talbot
detracts from the well-established principle that a
    jury must consider all of the relevant evidence in determining the issue of
    causation.

[29]

Moreover,
    the facts of this case are distinguishable from those of
Talbot
. In
Talbot
,
    the punch had already rendered the victim motionless by the time of the kick:
    para. 17. The lay evidence was only capable of establishing that the kick was
    strong but not that it had any effect on the victims movements or breathing:
Talbot
,
    at para. 83. As Doherty J.A. explained in
Pocock
,
Talbot
is
    thus best seen as a case in which the medical evidence was speculative and
    there was no non-medical evidence that could show a causal link between the
    kick and the victims death: para. 20. As I have noted, in this case, there is lay
    evidence of a perceptible change in the victims behaviour to support an
    inference that the golf-swing blow accelerated the victims death. No such
    evidence was presented in
Talbot
. Accordingly, I would adopt the
    remarks of Doherty J.A. in
Pocock
as applicable to the case at bar:
    [I]n this case, unlike
Talbot
, there was non-medical evidence
    reasonably capable of linking the effects of the appellants attack on [the
    victim] to [the victims] death: para. 20.

[30]

For
    these reasons, I am satisfied that the jurys finding that the appellant was
    guilty of second degree murder was not unreasonable and, accordingly, I would not
    give effect to this ground of appeal.

(2)

Improper Crown
    Closing

[31]

The
    appellant submits that in his closing address, the trial Crown suggested that
    there was some evidence that the golf-swing blow with the pellet gun might have
    been the cause of the injuries to the top of Kennedys head. The appellant
    moved for a mistrial and during argument on that motion, with the jury not
    present, the trial Crown disavowed any such statement. In reasons reported at
    2015 ONSC 6904, the trial judge refused to grant a mistrial, ruling that the
    matter could be dealt with by way of an instruction to the jury: at paras.
    120-121. The trial judge initially told the jury that while Crown counsel had
    suggested that the golf-swing blow could have been the cause of both the injury
    to the jaw and the injury to the top of the victims head, the pathologist had
    not been asked about that and that: Ultimately, it will be for you to
    determine, if you can, the mechanism for the injuries inflicted on Mr.
    Kennedy. He subsequently corrected that instruction, and told the jury that
    Crown counsel did not specifically suggest that the appellants golf-swing
    had caused one of the injuries to the top of the head, that the pathologist had
    not expressed an opinion and that: It will ultimately be up to you to
    determine the mechanism by which any injuries sustained by Mr. Kennedy were
    caused.

[32]

The
    appellant complains that these instructions fell short of what was required.
    The trial judge did not admonish the trial Crown and he failed to instruct the
    jury explicitly that there was no evidence to support the trial Crowns
    statement that the appellants golf-swing with the pellet gun might have been
    the cause of the injuries to the top of Kennedys head.

[33]

Inappropriate
    cross-examination or improper remarks in closing argument by Crown counsel will
    result in a miscarriage of justice where they prejudice the accuseds defence
    or bring the administration of justice into disrepute:
R. v. R. (A.J.)
(1994), 20 O.R. (3d) 405 (C.A.), at p. 412;
R. v. Figueroa
, 2016 ONCA
    645, at paras. 89-94, leave to appeal dismissed, [2017] S.C.C.A. No. 1. The
    trial judge is best placed to determine the extent of the impact and influence
    of any improper remarks:
R. v. Munroe
(1995), 96 C.C.C. (3d) 431 (Ont.
    C.A.), at p. 452, affd [1995] 4 S.C.R. 53.

[34]

I
    am not persuaded that the impugned portion of the trial Crowns closing address
    meets that standard. While I agree that the trial judges correction was less
    than complete, the issue of whether the appellant struck Kennedy on the top of
    his head with the pellet gun was fully vetted by the appellants trial counsel
    before the jury. I see no realistic possibility that the jurys decision to
    convict the appellant of second degree murder was materially influenced by the
    impugned statement. In fact, the trial Crown told the jury that it did not have
    to decide whether or not the appellant struck Kennedy on the top of his head
    and instead stressed the lay evidence that the golf-swing left Kennedy silent
    and motionless. As I have explained in relation to the first ground of appeal,
    it is almost certainly the case that the jury found that the appellants
    golf-swing to the jaw accelerated Kennedys death. I do not accept the
    submission that the jury convicted the appellant because the jury found he
    delivered one of the blows to the top of Kennedys head.

[35]

Accordingly,
    I do not agree that, to the extent there was a misstatement in the Crowns
    closing, it contributed to a miscarriage of justice and I therefore reject this
    ground of appeal.

Disposition

[36]

For
    these reasons, I would dismiss the appeal from conviction.

Release: RJS March 6, 2019

Robert J. Sharpe J.A.

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

I agree. David Brown J.A.


