R. v. Smith (J.), (2001) 154 O.A.C. 51 (CA)

• Judge: Doherty, Feldman and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 18, 2001
• Jurisdiction: Ontario
• Citations: (2001), 154 O.A.C. 51 (CA)

R. v. Smith (J.) (2001), 154 O.A.C. 51 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. DE.031

Her Majesty the Queen (respondent) v. Jeffrey Smith (appellant)

(C24898)

Indexed As: R. v. Smith (J.)

Ontario Court of Appeal

Doherty, Feldman and Simmons, JJ.A.

December 18, 2001.

Summary:

The accused was charged with second degree murder after his young baby died. The Crown alleged that the baby died from injuries caused by a severe shaking. A jury convicted the accused of manslaughter. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4365

Procedure - Jury directions - Regarding expert evidence - The accused was convicted of manslaughter after his young baby died - The Crown's theory was that the baby died from injuries caused by a severe shaking - The accused appealed arguing, inter alia, that, faced with Crown and defence medical evidence that was diametrically opposed on the issue of causation, it was incumbent on the trial judge to tell the jury that they could only convict if they were sure the Crown expert evidence was correct - The Ontario Court of Appeal rejected the argument - The trial judge correctly instructed the jury that they were not obliged to decide whether to believe one group of witnesses over another - He also clearly and properly instructed the jury that the guilt of accused persons must not be decided by expert witnesses - See paragraphs 109 to 118.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused was convicted of manslaughter after his young baby died - The Crown's theory was that the baby died from injuries caused by a severe shaking - The accused appealed arguing, inter alia, that the trial judge erred in refusing his request for an adjournment to accommodate the testimony of one of his experts - The Ontario Court of Appeal rejected the argument - His decision was fully justified based on his concern about the impact of the length of the requested adjournment on the ability of the jury to recall the detailed medical evidence - An adjournment was not a real option - Furthermore, the accused's counsel chose not to apply for a mistrial - See paragraphs 27 to 53.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Ontario Court of Appeal summarized the general principles governing the admission of fresh evidence in criminal cases - See paragraphs 70 and 71.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused was convicted of manslaughter after his young baby died - The Crown's theory was that the baby died from injuries caused by a severe shaking - The trial judge refused the accused's request for an adjournment to accommodate the testimony of one of his experts - The accused made a tactical decision not to apply for a mistrial - On appeal, the accused sought to admit fresh evidence from the same expert - The Ontario Court of Appeal dismissed the application - The failure to request a mistrial demonstrated a lack of due diligence - Further, the proposed fresh evidence would not have affected the verdict - It failed to cast doubt on the most significant aspects of the Crown's case - It lacked the strength necessary to outweigh the societal interest in finality of criminal proceedings - See paragraphs 72 to 91.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused was convicted of manslaughter after his young baby died - The Crown's theory was that the baby died from injuries caused by a severe shaking - The accused appealed, arguing, inter alia, that the trial judge erred in admitting a Crown expert's evidence concerning the statistical frequency of non-accidental head injuries involving children - The Ontario Court of Appeal stated that the potential prejudice arising from this evidence was that it would suggest to the jury that there was at least an 80% chance that the baby was shaken to death - The court agreed that it would have been preferable had this evidence not been given - However, given the extensive and complex medical testimony placed before the jury relating to the baby's condition and what may have caused it, there was no realistic possibility that the jury would have used this evidence in assessing the issue of guilt - See paragraphs 92 to 94.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused was convicted of manslaughter after his young baby died - The Crown's theory was that the baby died from injuries caused by a severe shaking - The accused appealed, arguing, inter alia, that the trial judge erred in admitting a Crown expert's evidence concerning the psychosocial risk factors which play a role in shaken baby syndrome - The Ontario Court of Appeal rejected the argument - The evidence was relevant to rebut "good parent" character evidence led by the accused - The court rejected the argument that the evidence was presented to suggest that the accused belonged to the same class of individuals as the perpetrator or that the presence of various risk factors meant that he was the type of person who would shake his child - See paragraphs 95 to 101.

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of the accused - General - [See second Criminal Law - Topic 5209 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See both Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Olbey (1977), 38 C.C.C.(2d) 390 (Ont. C.A.), affd. [1980] 1 S.C.R. 1008; 30 N.R. 152, refd to. [para. 48].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 56].

R. v. McMartin, [1964] S.C.R. 484, refd to. [para. 62].

R. v. R.C. (1989), 31 O.A.C. 375; 47 C.C.C.(3d) 84 (C.A.), refd to. [para. 63].

R. v. P.S.M. - see R. v. McBirnie (P.S.).

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 64].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 65].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214; 130 C.C.C.(3d) 259, refd to. [para. 66].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 148 C.C.C.(3d) 193, refd to. [para. 67].

R. v. Dalton (R.C.) (1998), 163 Nfld. & P.E.I.R. 254; 503 A.P.R. 254 (Nfld. C.A.), leave to appeal refused (1998), 235 N.R. 395; 173 Nfld. & P.E.I.R. 180; 530 A.P.R. 180 (S.C.C.), refd to. [para. 68].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289, refd to. [para. 69].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 102].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 105].

R. v. Phillips (C.) et al. (2001), 139 O.A.C. 282; 154 C.C.C.(3d) 345 (C.A.), refd to. [para. 106].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 106].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 107].

R. v. Molnar (1990), 38 O.A.C. 62; 55 C.C.C.(3d) 446 (C.A.), refd to. [para. 112].

R. v. Bourguignon (C.) (1997), 102 O.A.C. 196; 118 C.C.C.(3d) 43 (C.A.), refd to. [para. 112].

R. v. Wade (W.) (1994), 69 O.A.C. 321; 89 C.C.C.(3d) 39 (C.A.), refd to. [para. 112].

Counsel:

Russell Silverstein, for the appellant;

Kenneth L. Campbell and Riun Shandler, for the respondent.

This appeal was heard on March 27-28, 2001, by Doherty, Feldman and Simmons, JJ.A., of the Ontario Court of Appeal. The following decision of the court was released on December 18, 2001, by Simmons, J.A.