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Indexed as:
R. v. Seth
Between
Her Majesty the Queen, respondent/appellant, and
Larry William Seth, appellant/respondent
[2001] O.J. No. 2322
147 O.A.C. 101
157 C.C.C. (3d) 189
50 W.C.B. (2d) 220
Docket No. C32144 and C33697
Ontario Court of Appeal
Toronto, Ontario
Charron, Feldman and MacPherson JJ.A.
Heard: February 7-8, 2001.
Judgment: June 18, 2001.
(113 paras.)
Criminal law -- Appeals, indictable offences -- New trials -- Where conviction quashed on appeal --
Procedure -- Trial judge, duties and functions of -- Jury trials -- Jury, evidence -- Questions by jury
-- Jury request to review evidence or argument -- Verdicts, discharges and dismissals -- Directed
verdict.
This was an appeal by Seth from his conviction by a jury for manslaughter, and an appeal by the
Crown from a directed verdict of acquittal on a charge of first degree murder. The Crown alleged
that Seth killed a four-month old infant by asphyxia during the commission of a sexual assault. He
was originally charged with first degree murder. On a motion by Seth, the trial judge directed a ver-
dict of acquittal on that charge. The jury was left with the charge of manslaughter during the com-
mission of a sexual assault. The accused was convicted of manslaughter. The accused argued that
the judge failed to provide the jury with the assistance that they requested during the course of their
deliberations regarding the testimony of the child's mother and the sequence of events on the day of
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the child's death. The Crown argued that the judge erred in ruling that there was no evidence of in-
tent for murder.
HELD: Appeals allowed. The manslaughter verdict was set aside. A new trial on the charges of first
degree murder and manslaughter was ordered. The trial judge erred in declining to provide the jury
with any assistance as to the evidence of the mother or a review of the sequence of events. The
judge had an important obligation to provide the jury with correct and comprehensive answers to
questions asked by them. The sequence of events was critical in this case. The trial judge erred in
his ruling on the directed verdict motion and should have allowed the murder charge to be consi-
dered by the jury. There was evidence upon which the jury could reasonably have found that Seth
had the requisite intent for murder. It was not appropriate to decline to order a new trial on the
ground that a guilty verdict on the murder charge would be unreasonable.
Statutes, Regulations and Rules Cited:
Criminal Code, ss. 231(5)(b), 605(2), 686(1), 686(1)(a)(i).
Appeal from:
On appeal from conviction for manslaughter by a jury before Justice N. Borkovich dated April 29,
1999 and on appeal by the Crown from a directed verdict of acquittal of first degree murder on
April 26, 1999.
Counsel:
Joseph A. Neuberger and Michael Shapray, for the appellant/respondent, Larry William Seth.
Eric H. Siebenmorgen, for the respondent/appellant, Her Majesty the Queen.
The judgment of the Court was delivered by
1 FELDMAN J.A.:-- Christian Bill, age 4 months, died in his crib on May 10, 1996. The cause
of death was asphyxia. Mr. Seth (the appellant) lived with Christian and his 17 year old mother. The
appellant was convicted of manslaughter of Christian. He appeals his conviction and sentence of 15
years imprisonment. The chief ground of appeal against conviction is unreasonable verdict. A
second ground relates to the trial judge's failure to provide the jury with the assistance they re-
quested during the course of their deliberations.
2 The appellant was originally charged with first degree murder and sexual assault causing bo-
dily harm. The first degree murder charge was based on the theory that the appellant sexually as-
saulted the baby by putting his penis into the baby's mouth or ejaculating into the baby's mouth,
thereby causing death by asphyxiation, or smothering the baby with a pillow during or immediately
after sexually assaulting him, thereby causing death by asphyxiation. The trial judge directed a ver-
dict of acquittal on the first degree murder charge and left with the jury the offence of manslaughter
during the commission of a sexual assault, and the included offence of sexual assault causing bodily
harm. The Crown appeals the directed verdict ruling, and seeks a retrial on the first degree murder
charge, but only in the event that the appellant's appeal is allowed and a new trial is ordered on the
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manslaughter charge. The Crown is otherwise content with the manslaughter verdict and a dismissal
of the appellant's appeal.
3 The new indictment against the appellant prepared by the Crown following the directed ver-
dict on first degree murder, upon which the appellant was convicted of manslaughter, reads as fol-
lows:
Larry William Seth stands charged: (1) That he on or about the 10th day of May,
1996, at the City of Hamilton, in the Regional Municipality of Hamil-
ton-Wentworth unlawfully did kill Christian Bill during the commission of a
sexual assault and thereby did commit manslaughter contrary to Section 236(b)
of the Criminal Code of Canada.
4 The theory of the Crown on the manslaughter trial was that the appellant caused the infant to
die by asphyxiation by putting his penis into the baby's mouth. The appellant's position on the ap-
peal is that the verdict is unreasonable primarily because the evidence does not establish such a
sexual assault, an essential element of the offence as charged.
FACTS
5 The narrative of the events of the evening of May 9 and the morning of May 10 was the in-
formation given at trial by Nicole Bill, Christian's mother. The appellant did not testify. However,
the information that he provided to the ambulance personnel and the police on the scene was led in
evidence as part of the Crown's case and was consistent with Ms. Bill's account.
6 Ms. Bill was 16 years old when Christian was born on January 10, 1996. Christian's father
was Michael Marshall, with whom Ms. Bill had had a relationship that ended several months before
the birth. She met the appellant in December, 1995 before giving birth to Christian. Ms. Bill and
Christian began living with the appellant in March, 1996 in an apartment. The appellant's friend,
Damien Rice, lived in the attic. Mr. Rice spent the night of May 9 at his girlfriend's residence.
7 On May 9 Christian woke up at around 5:00 a.m. Ms. Bill changed him and gave him a bottle
then laid him back down. He was up for some time in the morning. Ms. Bill lay with him on the
pull-out couch in the living room. He went back to sleep in his crib around 11:00 a.m. and awoke at
1:00 p.m. or 2:00 p.m. Both the appellant and Mr. Rice came home about that time. They had an
argument, then left. Neither man did anything with Christian at that time. Christian was either as-
leep or on the couch.
8 A friend, Stacey Boyer, then visited the apartment at around 2:00 or 3:00 in the afternoon and
stayed until 4:00 or 5:00. Ms. Bill fed Christian a jar of baby food and then breast fed him because
he was cranky most of the day. Ms. Boyer confirmed that Christian was cranky and that he was in
and out of the Jolly Jumper apparatus a fair amount.
9 The appellant arrived home around 6:00 p.m. and began preparing dinner as he had invited a
friend, Jeffrey Lyon, for dinner. Mr. Lyon spent an hour with them that evening. He said everyone
was cheerful. During that period, Ms. Bill said that the appellant changed the baby and gave him
another jar of baby food. The baby was in the Jolly Jumper during that period and later. The appel-
lant also had the baby with him on the couch. At around 10:00 p.m. he fed Christian another jar of
baby food. He then got the baby ready for bed. He took a radio into Christian's room and danced
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around with him. Just after 10:00 p.m. Ms. Bill gave the baby a kiss and went into the shower for
forty-five minutes to an hour. At that time she said that Christian seemed fine.
10 Ms. Bill did not check on Christian after her shower because he was quiet. Around midnight
or 12:30 a.m. Ms. Bill and the appellant were in the living room, which was next to the baby's bed-
room. They ordered an x-rated movie. During the movie, Christian began to fuss. Ms. Bill at-
tempted to go in to check on him but the appellant insisted that she lie down and relax because she
was not feeling well that day. The appellant went and checked on the baby and reported that he was
just being fussy, he did not want his bottle and kept spitting it out. There was no evidence of what
was in this bottle.
11 The appellant went to check on Christian a second time when he cried, again telling Ms. Bill
to relax. He went in a third time with a bottle of water or sugar-water. This was about 2:00 or 2:30
a.m. after the appellant and Ms. Bill had had intercourse. Ms. Bill did not know if the appellant put
his clothes on before preparing and taking in the bottle. She said that as far as she knew, the appel-
lant usually rinsed off his hands before preparing a bottle for the baby.
12 Ms. Bill said that Christian carried on for an hour or two and that the appellant went to him
about four times for about five or ten minutes each time. After that the baby quieted down for a
while, then started up again, then quieted down for the rest of the night.
13 Ms. Bill testified that after the movie was over and she and the appellant had sex, they went
to sleep at about 3:00 a.m. In cross-examination, she agreed that she had told an officer at the time
that they also had sex before her shower and around midnight. She woke up about three times dur-
ing the night to change position, but did not hear the baby until around 6:00 a.m. when she heard
him laughing and playing. Ms. Bill was asked whether when she woke during the night she noticed
the appellant there. She answered, "mostly yes", and that he slept beside her.
14 After waking at 6:00 a.m., she fell back to sleep until 8:00 or 8:30 when the appellant got up
to go to court for 9:00. She observed the appellant get ready, go to the kitchen and eat some fruit,
then go into Christian's room to check on him. She did not know how long he was in the room but
she saw him run out with something, which appeared to be the baby's pillow, and take it into the
bedroom, after which he came into the living room where she was on the pull-out couch. He told
her that he had found the pillow they kept in Christian's room over the baby's face, but the baby was
fine and still breathing. She then dozed back to sleep.
15 She woke up at about 9:00 a.m. and went into the bathroom then into the baby's room. She
determined that he was sleeping but appeared to be alive; he was breathing, he was warm and his
eyes were moving. In cross-examination, she confirmed that she thoroughly checked the baby at
9:00 a.m., by feeling his face, feeling him breathe, putting her hand on his chest and feeling it go up
and down and observing his eyes moving beneath the closed lids. Her habit was to check on him
thoroughly. She did not see any foam at that time as she did later at noon. She did not hear any
sounds from him. She let him sleep and she went back to sleep.
16 She awoke at 10:00 a.m. when the appellant came in. He had bought a bike and she went
downstairs with him for five minutes to look at it. She then went back upstairs to get some tools to
adjust the seat on the bike and brought them down. She was uncertain whether the appellant came
upstairs then. While she was upstairs she did not check on the baby and did not hear him. She was
downstairs for about ten minutes at that time. The appellant was talking about getting a bike seat for
the baby so they would not have to take the stroller. As she came upstairs at about 10:30 a.m., the
Page 5
phone rang and she answered it and talked to Stacey Boyer for about 15 minutes. Stacey Boyer said
that Ms. Bill sounded happy and cheerful during their conversation and that they talked about taking
their children out together to the park that afternoon.
17 The appellant then came upstairs and they had sex again. After she and the appellant had
sex, the appellant performed oral sex on her. Ms. Bill said that it was not that unusual that the baby
would sleep in and she therefore believed that he was still sleeping.
18 When she realized that it was near noon, she became scared because Christian had not yet
woken up. She then went in to check on him. At the same time the appellant began to disassemble
the VCR to return it to Stacey Boyer who had asked for it to be returned. He did not wash himself.
The appellant had not been in the baby's room since Ms. Bill had checked on him at 9:00 a.m.
19 Ms. Bill found the baby with white foamy material coming out from his nose and mouth. He
was on his back with one arm beside him and one up, his hands were in fists, and he was on top of
his blankets. His bottle was in the crib. He did not appear to be breathing and he was cold.
20 She called the appellant. The appellant came in, wearing only a t-shirt, picked up the baby
with his face against his chest, then took him into the living room and tried to resuscitate him by
putting his mouth over Christian's mouth and nose and breathing.
21 The appellant also asked Ms. Bill to get the baby's inhalers which Christian had as a result
of a diagnosis by his doctor of asthma at age two months. She could only find one inhaler, she pa-
nicked and the appellant told her to call 911. She called 911 and the operator kept her on the phone
until the ambulance and police arrived. She told the 911 operator that she had last seen the baby at
9:00 a.m. and that he was fine at that time. While she spoke to the operator, the appellant had
moved the baby into the kitchen, laid him on the table and was still trying to resuscitate him by giv-
ing him mouth to mouth respiration and pushing on his chest. When the emergency personnel ar-
rived, the baby was taken in the ambulance right away and the appellant and Ms. Bill were told to
wait at home.
22 Ms. Bill responded to Crown counsel when asked, that she did not put a pillow over the ba-
by's head or hurt his rectum, penis or scrotum.
23 P.C. O'Keefe was one of the police officers who arrived in response to the 911 call. He ob-
served the appellant giving artificial respiration to the baby. The officer confirmed that both the ap-
pellant and Ms. Bill were upset when he arrived. After the baby was taken away in the ambulance,
the officer interviewed the appellant and Ms. Bill. The appellant told the officer that when he
checked on the baby around 8:30 a.m., the pillow was over his face, he removed it and felt the baby
breathing by putting his finger under his nose. The appellant brought the police the pillow from
another room.
24 P.C. Eldridge was with P.C. O'Keefe. She also observed the appellant giving artificial respi-
ration to the baby. The appellant was wearing a black t-shirt and jeans. She confirmed the same
content of the conversation with the appellant and Ms. Bill after the baby was taken way. She said
that they answered the questions directly and told what happened. The appellant said that when they
found the baby he removed some mucous from the baby's mouth and administered the puffer, but
nothing happened, so he told Ms. Bill to call 911. He first thought that he heard the baby breathe
and he saw the chest exhale, then he put his cheek to the baby's head "but there was nothing". He
also volunteered that he had taken a feather pillow from over the baby's face but that the baby was
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still breathing then. With respect to feeding, he said that the night before, the baby had had a bottle
of water, a bottle of milk and some applesauce.
25 Lydia Amos was one of the paramedics who arrived in the ambulance. Ms. Amos had 18
years experience as a paramedic as well as initial training and continuing upgrade courses. She gave
evidence about suctioning the baby. She found foreign matter in the baby's mouth which she as-
sumed was formula. She suctioned the baby's mouth out and discarded all the suctioned material
and the tubing used to extract it. She testified that if a person does CPR incorrectly, the contents of
the person's mouth can end up in the baby's stomach.
26 Dr. Michelle Barton was Christian's family physician. She last saw him on March 21. He
had had a cough for about a week. She said that at the time she felt that a future diagnosis of asthma
was possible, but the illness was more likely viral. She prescribed two inhaled medications or puf-
fers for the baby on March 21.
27 Several medical witnesses who examined the baby at the hospital gave evidence. Denise
Turcotte was a registered nurse who worked in the emergency room on May 10 when the baby was
brought in. One of the things she did was take the baby's temperature with a rectal probe. She de-
scribed undoing the baby's diaper and noting some soft stool there. She gently put the probe in for a
few seconds then removed it. She did not have a clear view of the rectum. She denied doing any in-
jury to the rectum, but acknowledged that she did not see the rectum after doing the probe.
28 The forensic evidence was given by three witnesses, Keith Kelder, a forensic biologist from
the Centre of Forensic Sciences in Toronto, Pamela Newall, the section head of the biology section
at the Centre and an expert on DNA, and Dr. Chitra Rao, a forensic pathologist and head of the fo-
rensic unit at Hamilton General Hospital.
29 Keith Kelder was qualified in this case to testify as an expert and give opinion evidence with
respect to the examination and analysis of blood, other bodily fluids and tissue. He examined vari-
ous items supplied to him by the police in this case. He examined these items looking for sperma-
tozoa.
30 He found two sperm on the nasal swab taken from the baby's right nostril. He examined two
samples of the stomach contents and found one sperm that he could identify positively, three that
were suggestive and four possibilities, for a maximum total of eight, minimum of one. He also said
that sperm could be "hiding" behind food particles. He also found what he described as "very, very
few" sperm on the baby's sleeper, two or three on one location and three definite ones at another
location. He found sperm, again very few in number, three definite and as many as six, on the nip-
ple of the baby bottle found in the crib.
31 On the pillow from the baby's room, Mr. Kelder was looking for semen and saliva mixed
together, and in particular, the appellant's semen and the baby's saliva, because of the allegations in
this case. He located spermatozoa in one location in larger numbers than on the previously de-
scribed items. He also found saliva on the pillow, but no saliva and semen together.
32 Mr. Kelder did not find semen on the following items from the baby which were tested: the
anal swab; the oral swab; oral tubing; and, the left nostril tubing. He also did not find semen on the
following other items: four blankets from the crib; a comforter from a mattress on the floor of the
baby's room; a piece of carpet; and, a second baby bottle from the baby's room.
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33 Mr. Kelder also tested other items for saliva. One item was the fly area of the appellant's
jeans. The test was positive for saliva both on the inside and outside of the fly area. There was also
a spot where he found both saliva and semen. On the appellant's t-shirt, Mr. Kelder found semen
and saliva spots separately and semen together with saliva.
34 Mr. Kelder was then asked about how sperm can get to be in various places. First he was
asked about stomach contents. He said sperm can get there in two ways: first by sexual transfer ei-
ther by ejaculation in the mouth or by insertion of the penis after some prior sexual act where a
quantity of semen remains on the penis. The other is a secondary or intermediary process, where for
example, a person has liquid semen on the hand then touches something like the nipple of a baby
bottle.
35 Crown counsel asked the witness hypothetically, if a man has sexual intercourse with a
woman then performs oral sex on her, then within a few moments conducts CPR on a baby, whether
there can be secondary transference of spermatozoa. Mr. Kelder said it could be deposited both ex-
ternally and internally in the mouth area of the baby. He also said that there could be a transfer of
sperm from the stomach to the nostril in vomit. Also, if there was a significant number of sperm on
the nipple of a bottle and the nipple is placed in the mouth, sperm could travel to the mouth and
from there could be swallowed and go into the stomach.
36 With respect to the stain on the baby's sleeper, Mr. Kelder gave the opinion that it appeared
to have been smeared on by contact. His opinion with respect to the semen stains on the appellant's
t-shirt was that some appeared to be smeared on, but in the chest area by the logo there were a
number of circular stains that suggested that the semen was deposited in a projected fashion.
37 Mr. Kelder was also asked to estimate the sperm count of an average male per ejaculate. He
answered that there are 300 million spermatozoa per three millilitres ejaculate, which is the average,
so that the average density is one million per millilitre. This can be affected by infertility. (There
was evidence that the appellant has two of his own children.) The count can also be depressed when
there is frequent ejaculation, but that cannot be determined without a measurement.
38 Mr. Kelder elaborated in cross-examination that there are twenty drops of ejaculate in one
millilitre and therefore 60 drops in three millilitres. A single drop of ejaculate can contain 5 million
sperm. Therefore hypothetically if there was ejaculation into the baby's mouth and he swallowed
five drops, there would be twenty-five million sperm. Mr. Kelder concluded that based on that hy-
pothetical and with the qualification of no significant degradation of the sperm or reduction by di-
gestion, through excrement or vomit, "one would expect more" than the one to eight sperm found in
the sixteen or seventeen percent of Christian's stomach contents which were examined. He agreed
that there would be 25 million sperm in the stomach at the outset, rather than 50.
39 With respect to the spots on the sleeper, Mr. Kelder agreed that they contained a few yeast
cells. He also agreed that these can be found as part of a woman's vaginal infection, or from baker's
yeast.
40 Because the semen on the sleeper was a smear it could have got there from rubbing against
wet semen on the appellant's t-shirt. In the same way, the sperm on the pillow was also a smear and
could have got there from rubbing against wet semen from other material or from a hand. Dry
sperm can also be transferred. Also, the pillow case was dirty. Mr. Kelder said that one cannot tell
the age of a semen stain on fabric because it does not degrade on cloth.
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41 Mr. Kelder agreed that if a man and woman had intercourse, then he performed oral sex on
her, that it was possible the man could have some sperm in his mouth, and that some semen could
be transferred into the child's mouth during artificial respiration. He stated however that it was not
likely that during the artificial respiration some sperm could have gone from the mouth into the
stomach.
42 Pamela Newall was qualified as an expert to give opinion evidence with respect to DNA.
She was provided with blood samples from the baby, the mother, the appellant and Mr. Rice.
43 Ms. Newall examined samples provided to her from the appellant's jeans. The first was a
semen-saliva sample from the inside of the fly area. She explained that they separate the two com-
ponent parts of the mixed sample, allowing them to purify the DNA from the sexual partner in the
"epithelial fraction" and the DNA from the sperm in the "sperm fraction". On the sample from the
inside of the fly, labelled X1, the epithelial fraction was a mixture of Ms. Bill and the appellant,
while the sperm fraction matched the DNA profile of the appellant.
44 The second stain on the jeans, X2, was a saliva stain. The dominant DNA profile from that
was the appellant's, while Ms. Bill could not be excluded as the secondary profile for that stain. She
did not identify Christian's DNA on either stain.
45 There was a semen-saliva stain on the t-shirt. From the epithelial fraction they found a mix-
ture of DNA. The dominant profile was from Ms. Bill. Neither Christian nor the appellant could be
excluded as contributors to the secondary profile. The "sperm fraction" was from the appellant.
46 There were two semen stains on the sleeper. On the epithelial fraction there was a mixture of
DNA, the dominant profile was from Christian, with neither the appellant nor Nicole Bill being ex-
cluded as contributors to the secondary profile. The dominant DNA profile in the sperm fraction
was from the appellant. Christian could not be excluded as a contributor to one of the sperm frac-
tions which had mixed DNA. The other one was only the appellant's.
47 Ms. Newall testified that there were not enough sperm on the nasal swab or they were not of
sufficient quality to do a profile. Nor were they able to do a profile on the sperm in the stomach
contents. In cross-examination, Ms. Newall said that they need more than 100 good quality sperm in
order to generate a profile.
48 Ms. Newall was asked what could contribute to the epithelial mixture. She mentioned it
could be saliva, vaginal secretions, nasal secretion and blood. Therefore dealing with the t-shirt
where the dominant profile in the epithelial fraction was from Ms. Bill, because the stain was saliva
and semen, it was a reasonable conclusion that there was DNA from saliva in the epithelial fraction.
The stain was not tested for vaginal secretions as there is no test for that.
49 Ms. Newall agreed that it was not surprising that the epithelial fraction of the stain on the
sleeper was from Christian since he could have dribbled on it. The reason that Christian's DNA is in
the sperm fraction is because there is epithelial material in the sperm fraction.
50 Dr. Rao was qualified as a forensic pathologist. She performed the post-mortem examination
and autopsy on Christian Bill. She gave the opinion that the cause of Christian's death was asphyxia.
The Crown then proposed three hypothetical situations to address the possible manner of asphyxia-
tion. The first was whether asphyxia and death could be caused by a man ejaculating into the baby's
mouth. She responded yes, as a result of ejaculation the child could choke or gag and die. The
second was whether death by asphyxia could occur after a man inserted his penis into the baby's
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mouth after sexual activity where a quantity of semen remained on the penis, but without ejacula-
tion into the mouth. Dr. Rao responded yes, this could cause gagging or choking and death. The
third hypothetical was whether a child could die from asphyxia if the baby's pillow, which weighed
over five pounds, was over the baby's face. Dr. Rao answered yes, because it would prevent air from
entering through the nose and mouth which could cause asphyxia and death. Dr. Rao also gave the
opinion that with a four month old baby, "once some asphyxia mode takes place, normally the heart
starts slowing down in thirty seconds and the electrical waves passing through the brain would go
flat in 90 seconds and then [the] child can die by two minutes."
51 Dr. Rao gave evidence regarding her observations, findings and opinions resulting from the
autopsy she did on Christian. She said that the baby appeared well-nourished and well-developed
with no trauma to the trunk area. She found the diaper with soft feces in it, as expected with a
four-month old child. On the genital area there was an abrasion on the under-surface of the penis
and another on the scrotal sack just below the base of the penis. There were also superficial abra-
sions on the upper margin of the anal orifice. Dr. Rao described it as "a thin sort of bruising", and
gave the opinion that the injury occurred between zero to four or six hours before death.
52 Ms. Bill had given evidence that Christian had had a hard stool with blood in it about three
or four days before May 10, and that she had planned to call the doctor about it. Dr. Rao was asked
if the injury to the anus could be caused by hard stool. She said it was a possibility that is always
included as part of a differential diagnosis, but that in a child of four months who is on milk, one
would not expect hard stool even if there is constipation.
53 She was asked her opinion of what might have caused the internal injury to the rectum. She
said it represented blunt force injury, consistent with some blunt object being introduced.
54 With respect to the abrasions on the under side of the penis and scrotum, Dr. Rao's opinion
was that they were also made between zero and four or six hours before death. She also said as to
the cause that "[i]t implies that there's been a rubbing action or fondling by hand."
55 Dr. Rao examined the inside of the baby's mouth and found no fresh injury. She found evi-
dence of vomitus in the form of sticky, slimy, whitish material. She saw no fresh injury to the neck,
the trunk, the arms or the legs. There was mild swelling of the brain in response to the asphyxia.
56 Dr. Rao measured and examined the contents of the baby's stomach. She concluded from the
curdled milk in the stomach that the baby died roughly within two hours after feeding. Most of the
milk or water taken by a baby leaves the stomach within an hour. In cross-examination, she con-
firmed that the time estimate was approximate.
57 Finally in her examination-in-chief, after confirming that she found that the baby was
healthy, Dr. Rao was asked about the normal reaction of a healthy baby of that age range who is
choking or gagging. She responded that: "One of the responses, they have due to gag reflex, they
would start vomiting and in the process of vomiting, they can inhale some of the vomitus into the
air passages."
58 In cross-examination Dr. Rao acknowledged a protocol from the Deputy Chief Coroner
titled "Protocol for the Investigation of Sudden and Unexpected Deaths in Children Under 2 Years
of Age", which states: "Unfortunately, in this day and age child abuse is a real issue and it is ex-
tremely important that all members of the investigative team think dirty'." She confirmed that as a
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member of the investigative team, she was to treat every case of a death of a child under two years
of age as a case of potential child abuse.
59 With respect to the abrasions on the penis, scrotum and anus, Dr. Rao agreed that they could
have been older than six hours before death, but in her opinion, twelve hours was too long. She
agreed that the abrasions to the penis, rectum, and scrotum played no role in the baby's death, but
stated that they were abnormal findings. She also agreed that the abrasions could have been caused
by rubbing with rough clothing if there was such contact.
60 Dr. Rao took an oral swab of white slimy material in the baby's mouth and found no sperm
in it, nor was there pubic hair in the mouth. Dr. Rao also submitted the endotrachial tube that was
down the baby's windpipe for analysis. There was no sperm on it. There was no bruising on the in-
side of the mouth, the lips, the gums, or under the skin at the back of the head. The latter spot was
examined because of the possibility of smothering and the theory that the baby's head may have
been held face down on the pillow, although Dr. Rao stated that bruising is rarely found and is not
essential where the head is just held down with an open hand. There was also no bruising on the
"hand-hold sites", which on a baby are places one might grab such as around the chest and arms.
61 Dr. Rao was asked about the diagnosis known as S.I.D.S., "sudden infant death syndrome",
which Dr. Rao said is the second most common cause of death of children under one year next to
natural disease. She agreed that choking or smothering cannot be distinguished from S.I.D.S. on a
negative autopsy. She discussed some of the theories explaining S.I.D.S. One is a re-inhalation of
carbon dioxide during a long period of apnea. The breathing cycle of the child is affected, the gas
exchange does not take place resulting in a form of asphyxia. A second theory of what happens in a
S.I.D.S. death is obligate nose breathing causing asphyxia. The child only uses the nose to breathe,
then gets an infection and dies. Dr. Rao agreed that common to all theories is that something affects
the child's breathing and it dies.
62 Another label that is used when a child dies is S.U.D.S. referring to "sudden unexplained
death" or "sudden unexpected death". Dr. Rao agreed that a death is called S.U.D.S. when it looks
like S.I.D.S. but there are suspicious circumstances. In this case, S.U.D.S. was Dr. Rao's provisional
diagnosis at the end of the autopsy. After she had all of the biology reports, her report stated the
cause of death as "undetermined" and raised various possible mechanisms of death as follows: eja-
culation into the baby's mouth; choking from a penis in the mouth; and, smothering. The injury to
the penis and scrotum and a positive biology report led her to exclude S.I.D.S. as a possibility.
However, she acknowledged that she could not rule out whatever "x" factor causes S.I.D.S., as the
cause of the asphyxia in this case. Dr. Rao agreed that Christian was in risk of S.I.D.S. because of
the following risk factors: the high risk age group (3 - 6 months); parents who smoke; smoking
during pregnancy; and, lower socio-economic circumstances.
63 Dr. Rao also said at the preliminary hearing that where there is a previous history of asthma,
an individual can die suddenly and post-mortem examination may not show anything. She qualified
that opinion at the trial by saying there should be some evidence of broncho spasm which is the
reason for death, and one will see mucous plugging.
64 Dr. Rao was asked whether it was possible that a healthy child could vomit or spit up some-
thing from the stomach which then goes into the lungs. She responded that "[i]t can happen, but
normally a healthy child do [sic] not die due to that." She said that there would be some underlying
reason such as the person is under the effect of alcohol or drugs or has a degenerative disease. She
Page 11
said that the possibility of this happening in a healthy baby is unlikely but she could not absolutely
rule it out. She said that of her theories of how the baby died of asphyxia, S.I.D.S. was the least
likely.
65 The last witness, who was another expert called by the Crown, was Dr. Kenneth Finkel who
was qualified to give expert evidence as a paediatrician. He was asked about the mobility of a baby
of four months. He said that a baby of that age can roll over once but not across the room. He can
move his head from side to side. A baby of that age cannot usually deliberately reach out and grasp
something. He said that whether a baby could pull a five pound pillow over its face would depend
on the position of the pillow in relation to the baby. If the pillow were over the baby's face and
arms, the baby would be able to budge the pillow a bit with the arms. In cross-examination he also
postulated that with the pillow in a certain position, the baby could roll from front to back against it
and the pillow might fall.
THE DIRECTED VERDICT RULING
66 At the close of the Crown's case, the defence moved for a directed verdict of acquittal on the
charges of first degree murder and sexual assault causing bodily harm. The trial judge stated that the
motion was based on three grounds:
1) The Crown's case was based wholly on circumstantial evidence. The time
of death was uncertain. The evidence did not disclose that the appellant
had exclusive opportunity to commit the offence.
2) The Crown had not proved that the death was the result of a homicide.
3) There was no evidence of the requisite intent for murder: that is, either the
accused meant to cause death or meant to cause bodily harm that he knew
was likely to cause death and was reckless whether death ensued or not.
67 After reviewing the legal tests to be applied, the trial judge made the following findings:
1) There was sufficient evidence that the accused had the opportunity to
commit the offence.
2) There was no evidence upon which a jury could reasonably find that the
pillow was used to smother the child and cause his death. As a result the
judge directed the jury not to consider that evidence in arriving at a verdict.
3) There was no evidence upon which the jury could reasonably find that the
accused meant to cause the death of the baby or meant to cause him bodily
harm that he knew was likely to cause death and was reckless whether
death ensued. The judge therefore directed a verdict of acquittal of murder.
4) There was sufficient evidence for a jury to reasonably find that the accused
intended to sexually assault the baby by ejaculating semen into the mouth
or by inserting his penis into the mouth, and that he could have objectively
foreseen the risk of bodily harm which was neither trivial nor transitory in
the context of a dangerous act. The judge therefore concluded that there
was evidence upon which a jury could reasonably find the accused guilty
of manslaughter.
Page 12
5) There was sufficient evidence upon which a jury could find that the as-
phyxia that caused the death resulted from sexual assault by the accused,
and therefore that the death was a homicide.
The judge therefore concluded that the charges that would go to the jury were manslaughter and
sexual assault causing bodily harm.
68 The trial resumed after the ruling. The defence called no evidence.
69 After submissions by counsel with respect to the jury charge, the trial judge ruled that as the
Crown was alleging manslaughter caused by sexual assault by insertion of the appellant's penis into
the baby's mouth, the included offence of sexual assault had to involve that assault and could not
consist only of interference with the baby's anus, penis and scrotum. The evidence respecting those
areas was alleged by the Crown to be part of the sexual assault on the mouth, but not a cause of the
death and therefore taken alone, could not constitute the included offence alleged by the Crown. As
a result, the Crown drew a new indictment charging manslaughter by sexual assault and the jury
was instructed in accordance with the ruling.
70 At the conclusion of his charge to the jury the trial judge made some comments on the evi-
dence and on the strength of the Crown's case, a practice normally reserved for rare circumstances.
He pointed out to the jury that Ms. Bill was consistent in her evidence that the baby was alive at
9:00 a.m. as she told the 911 operator the same thing. The audio of that call, which they heard,
demonstrated that she was hysterical when talking to the 911 operator after finding the baby cold,
pale and with white foam on his nose and mouth at noon. The trial judge told the jury that if they
accepted her evidence that the baby was still alive at 9:00 a.m., or had a reasonable doubt about it,
then the Crown would have failed to establish that the death occurred earlier when the appellant had
the opportunity to commit the offence.
71 The trial judge also reviewed the consistent evidence of numerous witnesses that the baby
had white material on and in his nose and mouth and that he had vomited. He stated that it appeared
logical on the evidence that the child's airway was obstructed by vomit. He referred to Dr. Rao's
evidence of the directive to "think dirty", and instructed the jury that it was their duty to consider
the evidence objectively and to be impartial. He instructed the jury to question whether a scientist
could maintain impartiality and objectivity if instructed by a superior to "think dirty". Given that
there was evidence that death was caused by regurgitation leading to airway obstruction and as-
phyxia, he raised the issue of whether Dr. Rao's opinion that that was unlikely was tainted by the
"think dirty" admonition. Finally he stated that it was his view that on the evidence there was a rea-
sonable doubt as to whether the death was a homicide.
72 The jury deliberated over a period of three days and asked 10 questions. The first request
was for the entire transcript of the evidence and of the judge's charge. In response, the trial judge
explained that the whole transcript was not available, but that they could ask for particular portions
and then he, the reporter and counsel would get together "to see if we can get that evidence for
you." Shortly thereafter they came back with four questions, one of which was a request for an
overview of Ms. Bill's testimony of the sequence of events. Counsel agreed that the judge should
not give a sequence of events and that either the entirety of Ms. Bill's evidence should be played
back or none of it. The trial judge told the jury that the only way to give an overview of Ms. Bill's
testimony of the sequence of events was to play back the total transcript of her testimony, and then
he said: "but certainly that is part of your function, for all of you to remember what the evidence
Page 13
was and it's for you to decide what the sequence of events were." Although the jury asked further
questions, they did not ask again for Ms. Bill's evidence. The second ground of appeal is that the
trial judge erred by failing to answer this question from the jury and refusing to assist them with this
crucial evidence.
73 On the morning of the third day of deliberations the jury asked for a repetition of the judge's
charge, together with the following two questions:
"If there is a belief that the baby died by another means other than 1. Penis in the
mouth, 2. Penis ejaculating in the mouth (Crown), 3. "x" factor causing SIDS
(defence), can there be a decision of guilty of manslaughter rendered or are we
restricted to these 3 possibilities?"
and
"How much weight do we place on the evidence as opposed to the theory? If we
can construct a theory to support the evidence, whether that theory be right or
wrong, can we render a decision of guilty of manslaughter?"
In response the judge repeated certain parts of the charge to the jury and instructed them that to
convict they must be satisfied that one of the two methods of sexual assault occurred and resulted in
the death. They were recharged on drawing inferences from the facts and reminded that they could
not speculate.
74 The jury returned with the guilty verdict later that day. The trial judge sentenced the appel-
lant to 15 years in prison.
ISSUES
75 The appellant appeals both conviction and sentence. There are two grounds of appeal against
conviction. The first is that the verdict is unreasonable. The second is that the trial judge erred by
failing to answer the jury's question and to assist them with the evidence of Ms. Bill. The Crown
appeals from the directed verdict of acquittal on the charge of first degree murder, on the basis that
the trial judge erred in ruling that there was no evidence of intent. The Crown seeks a new trial on
that charge only in the event that the appellant's appeal is allowed and a new trial is ordered on the
manslaughter charge.
ANALYSIS
Unreasonable Verdict
76 The appellant's chief ground of appeal is unreasonable verdict. The statutory authority for
the appeal court's jurisdiction is s. 686(1) which provides:
686(1) On the hearing of an appeal against a conviction or against a verdict that
the appellant is unfit to stand trial or not criminally responsible on account of
mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
Page 14
(i) the verdict should be set aside on the ground that it is unrea-
sonable or cannot be supported by the evidence,
...
77 The test that a court on appeal is to apply when considering whether a verdict of guilty
ought to be set aside as unreasonable has been considered and explained in two decisions of the Su-
preme Court of Canada, R. v. Yebes (1987), 36 C.C.C. (3d) 417 and most recently R. v. Biniaris
(2000), 143 C.C.C. (3d) 1. The test, "whether the verdict is one that a properly instructed jury acting
judicially, could reasonably have rendered," has both objective and subjective components which
involve the appeal court in a limited reweighing of the evidence. The issue is not whether the ver-
dict was possible, but whether it was reasonably available on the evidence: (Yebes at p. 430). In Bi-
niaris, Arbour J. explained that:
... [A]cting judicially means not only acting dispassionately, applying the law and
adjudicating on the basis of the record and nothing else. It means, in addition, ar-
riving at a conclusion that does not conflict with the bulk of judicial experience.
This, in my view, is the assessment that must be made by the reviewing court. It
requires not merely asking whether twelve properly instructed jurors, acting judi-
cially, could reasonably have come to the same result, but doing so through the
lens of judicial experience which serves as an additional protection against an
unwarranted conviction. (p. 23-4)
Arbour J. concluded with the following summary of the method by which a court on appeal is to
proceed when considering the issue of unreasonable verdict:
... [T]he test in Yebes continues to be the binding test that appellate courts must
apply in determining whether the verdict of the jury is unreasonable or cannot be
supported by the evidence. To the extent that it has a subjective component, it is
the subjective assessment of an assessor with judicial training and experience that
must be brought to bear on the exercise of reviewing the evidence upon which an
allegedly unreasonable conviction rests. That, in turn, requires the reviewing
judge to import his or her knowledge of the law and the expertise of the courts,
gained through the judicial process over the years, not simply his or her own
personal experience and insight. It also requires that the reviewing court articu-
late as explicitly and as precisely as possible the grounds for its intervention. I
wish to stress the importance of explicitness in the articulation of the reasons that
support a finding that a verdict is unreasonable or cannot be supported by the
evidence. Particularly since this amounts to a question of law that may give rise
to an appeal, either as of right or by leave, the judicial process requires clarity
and transparency as well as accessibility to the legal reasoning of the court of
appeal. When there is a dissent in the court of appeal on the issue of the reasona-
bleness of the verdict both the spirit and the letter of s. 677 of the Criminal Code
should be complied with. This Court should be supplied with the grounds upon
which the verdict was found to be, or not to be, unreasonable. (p. 25)
Applying the Test in this Case
Page 15
78 The basis for the Crown's case after the directed verdict of acquittal of first degree murder,
and for the conclusion of Dr. Rao that she believed that the cause of the asphyxiation of the baby
was a sexual assault, was the finding of some sperm in and around the baby, together with the evi-
dence of some injury to the anus, penis and scrotum. It was acknowledged, however, that these lat-
ter injuries did not cause or contribute to the death. The precise sexual assault that was alleged to be
the cause of the baby's asphyxiation was either ejaculation into the baby's mouth or placing the pe-
nis with sperm on it into the baby's mouth. The particular sexual assault alleged was one of the es-
sential elements that the Crown was required to prove beyond a reasonable doubt. It is the conclu-
sion that that sexual assault occurred which is the basis of the appellant's submission that the verdict
on the manslaughter indictment is an unreasonable one.
79 The entire case was based on circumstantial evidence, including the basis of the expert opi-
nion as to the likely cause of death by asphyxiation. There was no finding of any lesions in or on the
mouth or face suggestive of an assault on that area, nor anything on the trunk, neck, arms or legs.
Neither sperm nor pubic hair were found in the baby's mouth or on his face. The only physical evi-
dence consistent with a penis having been inserted into the baby's mouth was the limited findings of
sperm in the stomach, on the nipple, the sleeper and the pillow. Because Dr. Rao could not exclude
asphyxiation by regurgitation, she could not give a conclusive opinion, based on her findings, as to
the cause of the asphyxiation.
80 In a case which is based wholly on circumstantial evidence, the finding of guilt must be
founded on the conclusion that "there was no other rational explanation for the circumstantial evi-
dence but that the defendant committed the crime." (R. v. Charemski, [1998] 1 S.C.R. 679 at para.
13) Although a jury need not be instructed precisely in those terms, the circumstantial evidence
must amount to proof beyond a reasonable doubt. Therefore, if there is another rational explanation
that accounts for the death and is consistent with the evidence, then the case has not been proved
beyond a reasonable doubt.
81 The appellant's position is that there is an obvious explanation, which is inconsistent with
manslaughter, for the presence of the very limited number of sperm found in and around the baby.
The appellant argues that, given that the appellant had engaged in sexual intercourse with Ms. Bill
more than once during the night in question, and had checked on the baby several times, possibly
naked, and without showering, and given that after intercourse followed by oral sex on Ms. Bill, the
appellant gave mouth to mouth and nose artificial respiration to the baby, the presence of a small
number of sperm is explained. The appellant argues further that the number found is not consistent
with ejaculation, nor is it consistent with insertion of a penis covered with sperm into the baby's
mouth. However, the number of sperm found is consistent with the appellant touching and tending
to the baby during the night while having ongoing sexual intercourse and later oral sexual relations
with Ms. Bill, and later giving the baby mouth to mouth and nose artificial respiration.
82 Based on Yebes and Biniaris, it would be open for this court to consider the evidence as a
whole and to some extent reweigh the evidence according to accepted legal principles and based on
judicial experience and, if satisfied, to give effect to the appellant's submission.
83 However, in my view, it would be an error for this court to limit its analysis to the evidence
which was left with the jury, which excluded the evidence regarding the pillow.
84 In view of the trial judge's finding on the motion for a directed verdict that there was no
evidence upon which a jury could reasonably find that the pillow was used to smother the child and
Page 16
cause his death, the jury was left with only the two possible means of causing the infant's death
during the course of a sexual assault by the appellant: (a) ejaculation into the baby's mouth; or (b)
by insertion of his penis into the baby's mouth causing the baby to choke. However, in responding
to the appellant's appeal from conviction, it is open to the Crown to advance any argument that it
advanced at trial to sustain the verdict: see Perka v. The Queen (1984), 14 C.C.C. (3d) 385 at 391
(S.C.C.). Hence, it is open to the Crown to argue that the trial judge erred in directing the jury to
disregard the evidence of the pillow and to remove smothering by the pillow as a means of causing
the death in the new indictment, and that a properly instructed jury could find on the evidence that a
third possible means by which the appellant could have caused the death was by smothering the
baby with a pillow during the course of committing a sexual assault on the baby's genital area. (I
note that in his submissions to the trial judge on the directed verdict motion, Crown counsel at trial
abandoned any argument that the appellant smothered the baby with the pillow without committing
a sexual assault.)
85 In my view there was no basis to exclude the evidence of the pillow and it was an error for
the trial judge to do so. The jury heard evidence both from Ms. Bill and from the police officers re-
counting what the appellant had told them: that he had found a pillow over the baby's face at 8:30
a.m., he removed it and confirmed that the baby was still breathing at that time. The pillow evidence
was part of the sequence of events that occurred that evening, and therefore formed part of the con-
text for all the other evidence that the jury heard. It was clearly relevant, particularly where the
theory of the Crown and of the expert evidence was that smothering by a pillow was a possible
cause of the asphyxiation. The smothering could have been deliberate or accidental, based on the
evidence of Dr. Finkel. Hence this evidence should have been left for the jury to consider as a basis
for conviction or possible acquittal.
86 It follows that any consideration of whether the verdict was an unreasonable one can only be
undertaken on the basis of all the evidence and on the basis of an indictment and instructions there-
on which left open for the jury the three methods or means of causing the death and not just the
sexual assault. On that basis, in my view, it cannot be said that the verdict was unreasonable.
Error by the Trial Judge in Declining to Assist the Jury with the Evidence of Nicole Bill
87 The second ground raised by the appellant is that the trial judge erred by refusing to provide
the jury with any assistance with the evidence of Nicole Bill in response to the jury's question.
88 The jury's question focused on the sequence of events which was provided solely by Ms.
Bill in her testimony. The trial judge had just finished instructing the jury that he believed the evi-
dence raised a reasonable doubt and focused on the time of death based on the evidence of Ms. Bill
that the baby was alive at 9:00 a.m. The sequence of events was critical in terms not only of the ap-
pellant's opportunity to commit the offence, but in order to assess that opportunity within the con-
text of the expert evidence of the cause of death.
89 I agree with the appellant that the trial judge erred by declining to provide the jury with any
assistance as to the evidence of Nicole Bill or a review of the sequence of events. In R. v. S.(W.D.)
(1994), 93 C.C.C. (3d) 1 at p. 6 (S.C.C.), Cory J. emphasized the importance of providing the jury
with correct and comprehensive answers to questions asked of the trial judge following the main
charge. He concluded that: "It is the obligation of the trial judge assisted by counsel to make certain
that the question is fully and properly answered." This court has recently reiterated the importance
Page 17
of this obligation. See R. v. Hofung, [2001] O.J. No. 1342; and R. v. Humphrey, [2001] O.J. No.
1263.
90 On the basis of this error, the manslaughter verdict must be set aside and a new trial ordered.
The Crown Appeal of the Directed Verdict of Acquittal of First Degree Murder
91 The Crown submits that the trial judge erred by directing a verdict of acquittal on the charge
of first degree murder. The Crown submits that the trial judge erred in holding that there was no
evidence of intent for murder, and submits that there was some evidence on each element of the of-
fence to be proven.
92 The Crown also submits that the trial judge erred in law by applying the wrong test on a di-
rected verdict by weighing the evidence, a function reserved for the jury. The trial judge instructed
himself in the following way as to the legal test to apply on a directed verdict:
On a motion for directed verdict of acquittal, the issue to be determined is
whether the case should go to the jury or should verdicts of acquittal be directed.
The test to be applied is that set out in U.S.A. v. Shephard, [1977] 2 S.C.R. 1067,
that is, whether or not there is any evidence before me that a reasonable jury,
properly instructed, could return a verdict of guilty.
The Crown's case is based on circumstantial evidence.
In the case of Monteleone v. The Queen, 35 C.C.C. (3d) 193 at page 198, The
Supreme Court of Canada sets out the basis upon which a trial judge may deter-
mine,
"Whether there is before the Court any admissible evidence, whether direct
or circumstantial which, if believed, by a properly charged jury acting rea-
sonably, would justify a conviction, the trial judge is not justified in di-
recting a verdict of acquittal. It is not the function of the trial judge to
weigh the evidence, to test its quality or reliability once a determination of
its admissibility has been made. It is not for the trial judge to draw infe-
rences of fact from the evidence before him. These functions are for the
triers of fact, the jury."
In the case of Charemski v. The Queen, 123 C.C.C. (3d) 225 at 229, Bastarache
J. states as follows:
"For there to be 'evidence upon which a reasonable jury properly instructed
could return a verdict of guilty' in accordance with the Shephard test, the
Crown must adduce some evidence of culpability for each essential ele-
ment of the crime for which the Crown has the evidential burden. Thus, in
a murder prosecution, the Crown must adduce evidence on issues of iden-
tity, causation, the death of the victim and a requisite mental state. If the
Crown fails to adduce any evidence to discharge the evidential burden on
any of these issues, the trial judge should direct a verdict of acquittal."
Page 18
Further on page 236, McLachlin, J. elucidates further as follows:
"A properly instructed jury acting reasonably, is a jury that will convict
only if it finds that the evidence establishes guilt beyond a reasonable
doubt. To determine whether this could occur, a judge on the motion for a
directed verdict must ask whether some or all of the admissible evidence is
legally sufficient to permit the jury to find guilt beyond a reasonable doubt.
In so doing, the trial judge is determining the sufficiency of the evidence.
The question is whether the evidence is capable of supporting a verdict of
guilt beyond a reasonable doubt. If it is not, the trial judge must direct an
acquittal, since it would be impossible for a reasonable jury to convict le-
gally on the evidence."
93 The trial judge quoted the correct test from R. v. Monteleone, [1987] 2 S.C.R. 154, and from
the reasons of Bastarache J. in R. v. Charemski. He went on to quote from the dissenting reasons of
McLachlin J. in that case. He made no error in doing so. In that portion of the reasons, McLachlin J.
was referring not to a process of weighing the evidence, such as considering its credibility or relia-
bility or the drawing of inferences, but of testing its legal sufficiency to permit a jury to be satisfied
of the guilt of the accused beyond a reasonable doubt.
94 In any event, in making his findings, the trial judge found there was "no evidence" upon
which a jury could reasonably find the pillow was used to smother the child and cause his death,
and that there was "no evidence" upon which a jury could reasonably find that the appellant meant
to cause the death of the baby or to cause him bodily harm that he knew was likely to cause death
and reckless whether death ensued or not. In other words, in respect of the findings he made which
underpinned the directed verdict on first degree murder, the trial judge demonstrated that he was
applying the correct test.
95 Consequently, the issue before this court is not the articulation of the test but its application.
Did the trial judge err in his conclusions with respect to the existence or sufficiency of the evidence,
first on the smothering issue, and second on the issue of intent?
96 The original charge in the indictment against the appellant was first degree murder. The
Crown argued as its primary basis that there was some evidence of sexual assault by the appellant
putting his penis into the baby's mouth or ejaculating into his mouth, and that there was sufficient
evidence of the required intent to kill for the charge of first degree murder on that theory to go to
the jury. The trial judge accepted, based on the legal test as he set it out, that there was sufficient
evidence of the sexual assault by the penis to leave that issue for the jury, but that there was no evi-
dence that the appellant intended to kill the baby.
97 The Crown's second theory was that the appellant smothered the baby with the pillow. It
was not the Crown's position for first degree murder that there was evidence of planning and deli-
beration. Rather, the position of the Crown was that the appellant smothered the baby during or af-
ter sexually assaulting him (s. 231(5)(b)). Crown counsel made this position clear in his submis-
sions to the trial judge on the directed verdict motion.
98 What was the evidence to support that charge?
Page 19
1) The baby died in unexplained circumstances from asphyxia.
2) The evidence of Dr. Rao was that one of the possible causes of the baby's
death by asphyxiation was smothering.
3) There was evidence of a possible sexual assault on the baby's anus, scro-
tum and penis. Dr. Rao first said that the freshness of the injuries suggested
that they occurred within zero to 4 or 6 hours of the baby's death. In
cross-examination she agreed that they could have been several hours old-
er.
4) The appellant attended to the baby several times during the night of May 9
and the early morning of May 10 when the baby was crying and fussing.
5) Based on the stomach contents, the baby would have died within 2 hours
of his last feeding of milk, which would put the death sometime during the
night as the last feeding of milk was either the night before or on one of the
occasions when the appellant went in before the baby finally did not cry
anymore after about 3:00 a.m.
6) Death of a baby by smothering can take as little as two minutes.
7) At 8:30 a.m., the appellant emerged from the baby's room with the baby's
large pillow that weighed more than five pounds and said that he had found
it over the baby's face but that the baby was still breathing.
8) At four months old the baby could not have grabbed the pillow, although
he might have been able to pull it over him depending on its position or fall
against it and knock it over if it had been leaning upright.
99 It would also be open to the jury to consider the appellant's conduct with the pillow at 8:30
a.m. as incriminating after the fact conduct, if they accepted that the baby was already dead at that
time. If the baby was dead and the appellant knew it, then his statement to Ms. Bill that he found the
pillow on the baby's face and that the baby was still breathing could be viewed as an attempt to set
up an innocent explanation for when the baby was later found dead by asphyxiation.
100 In my view, taking the listed points together, it cannot be said that there is no evidence
upon which a jury could reasonably find that the appellant used the pillow to smother the child and
did so with the necessary intent to kill or cause bodily harm that he knew was likely to cause death
and was reckless whether death ensued or not.
101 In the same way, if the appellant committed a sexual assault on the baby by inserting his
penis in the baby's mouth, it cannot be said that there is no evidence that he did so with the neces-
sary intent to kill or cause bodily harm that he knew was likely to cause death and was reckless
whether death ensued or not. It was open to the jury to conclude on the evidence that the natural
consequence of that act was that the baby may not be able to breathe or may choke. The jury was
entitled to infer that the appellant intended that consequence.
102 Further, if the jury did not accept that before or while the appellant smothered the baby
with the pillow, he sexually assaulted him, but did find that the appellant placed the pillow over the
baby's face to stop him from crying, it would be open to them to find that he meant to cause death or
that he meant to cause the baby bodily harm and was reckless whether death ensued and therefore to
convict the appellant of second degree murder.1
103 I conclude that the trial judge erred in his ruling on the directed verdict motion and should
have allowed that charge to be considered by the jury.
Page 20
Would a Verdict on First Degree Murder be an Unreasonable Verdict?
104 The appellant submits that this court is in as good position as a future jury to assess the
reasonableness of a verdict on a charge of first degree murder based on the record before it. All of
the evidence that would be before that jury has been led and the appellant was put to his election.
The appellant submits both that the directed verdict did not amount to a substantial wrong or mis-
carriage of justice and that a verdict on first degree murder would be an unreasonable one.
105 In R. v. Collins and Pelfrey (1993), 79 C.C.C. (3d) 204, this court suggested that in a very
rare case, such as R. v. Greenwood (1991), 67 C.C.C. (3d) 435 (Ont. C.A.), a court on appeal from a
directed verdict of acquittal may be in a position to decline to order a new trial on one of the above
two bases. In Greenwood, the trial judge erred in directing a verdict of acquittal. However, follow-
ing the directed verdict, the appellant testified at the trial of his co-accused and gave evidence which
was accepted by the trial judge. In those circumstances the court held that the Crown could not
demonstrate that the verdict would have been any different had the trial judge not erred in his rul-
ing.
106 I agree that the evidence against the appellant is weak and equivocal. The trial judge was
satisfied that the evidence raised a reasonable doubt of the appellant's guilt. The pathologist could
not rule out death by S.I.D.S. or just accidental asphyxiation on vomit. The time of death is proble-
matic. In order to convict the appellant, a jury must reject the evidence of Ms. Bill (as they did) that
the baby was alive at 9:00 a.m. Having rejected her evidence on that crucial issue, the jury would be
obliged to consider whether they could be satisfied, based on the evidence they did accept, includ-
ing any of the evidence of Ms. Bill, that the appellant in fact committed the offence.
107 However, having found that there is some evidence for a jury to consider on all the ele-
ments of the offence of first degree murder either by sexual assault or by smothering with the pillow
while committing a sexual assault, this court is not in a position to make findings of credibility and
reliability of, for example, Ms. Bill, or to draw the inferences which a jury may draw based on an
assessment of the evidence.
108 In my view, this is not the rare case referred to in Collins and Pelfrey, where a new trial
should not be ordered because a verdict of guilty of first degree murder would necessarily be an un-
reasonable one.
RESULT - THE EFFECT OF THE CROWN'S POSITION ON THE APPEAL
109 The Crown took the position in writing and in oral submissions before this court that it
"requires an Order for a new trial on first degree murder only in the event that a new trial on the of-
fence of manslaughter is ultimately ordered, either by this Honourable Court or by the Supreme
Court of Canada." The Crown's position is that it is content with the verdict of manslaughter, so that
if the appeal on manslaughter is dismissed, it would not seek a new trial on first degree murder.
However, in that case the Crown wishes to keep its appeal alive in the event of a further appeal to
the Supreme Court of Canada.
110 In Guillemette v. The Queen (1986), 26 C.C.C. (3d) 1, the Supreme Court of Canada held
that where an accused is convicted of an included offence, and therefore in accordance with s.
605(2) of the Criminal Code, the accused has been acquitted of the greater offence originally
charged, and the accused appeals the conviction, the court on appeal may only deal with a disposi-
tion of the lesser charge under appeal unless the Crown has appealed the acquittal on the original
Page 21
charge. Crown counsel advised that it was because of the ruling in Guillemette, that the Crown
brought its appeal in this case. Its position before this court is consistent with that approach.
111 The appellant's response is that even if his appeal failed and the manslaughter verdict were
upheld, the court should consider the Crown's appeal and if it succeeds, there ought to be a new trial
on the first degree murder charge. There is no need to deal with that submission as the manslaughter
conviction is set aside.
112 As the manslaughter verdict has been set aside and a new trial ordered, I conclude that by
appealing the directed verdict of acquittal, the Crown has preserved its position.
RESULT
113 I would therefore allow the appeal of the appellant and set aside the conviction on the
manslaughter charge. I would also allow the appeal by the Crown in respect of the directed verdict
of acquittal of first degree murder and order a new trial on that charge.
FELDMAN J.A.
CHARRON J.A. -- I agree.
MacPHERSON J.A. -- I agree.
cp/e/nc/qlsar/qldah
1 However, Crown counsel at trial expressly disavowed that theory in his submissions on the
directed verdict, so that such an alternate instruction could not have been given had the first
degree murder count survived. Had the jury, however, asked a question similar to the question
they asked on the third day of deliberations, an instruction along these lines would have been
available and appropriate.