Decisions of the Court of Appeal

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide:

486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b)     on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

6.            (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

7.            (a) as soon as feasible, inform the victim of their right to make an application for the order; and

8.            (b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.R., 2018 ONCA 615

DATE: 20180709

DOCKET: C62161

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.

Appellant

Owen Goddard, for the appellant

Deborah Krick, for the respondent

Heard: November 22, 2017

On appeal from the conviction entered on September 22, 2015 imposed on by Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 5631.

Feldman J.A.:

[1]          The appellant and his girlfriend lived with a woman whom they cared for. They were charged with a number of offences against her as a result of extremely serious injuries she suffered, including third degree burns to 18% of her body. The charges were for various offenses involving assault, sexual assault, and forcible confinement. The appellant and his girlfriend were tried together as co-accused. The original trial ended in a mistrial when, following the convictions and before sentencing, the victim recanted her allegations against the two accused to her brother, telling him that her injuries were self-inflicted.

[2]          Following the second trial before a superior court judge sitting alone, both accused were acquitted of all charges except the charge of aggravated assault by pouring boiling water on the victim causing severe injuries. Although the victim initially testified at the second trial that the burns were self-inflicted, during cross-examination under ss. 9(1) and 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, she agreed that her testimony at the first trial and preliminary hearing was the truth and that the two accused had poured the boiling water on her and forced her to remain in it, causing the severe burns.

[3]          The trial judge concluded that he could not convict of any offences based only on the testimony of the victim. For a number of reasons, especially her numerous versions and recantations of the events in issue, and her history of other false, serious allegations against others, the trial judge could not accept her evidence standing alone. However, with respect to the burning by pouring boiling water, the trial judge found corroboration that the injuries were not self-inflicted in the testimony of two doctors called by the Crown, together with his difficulty in accepting the physical possibility that the victim would have been able to pour the boiling water on herself and suffer the injuries in the places that she did.

[4]          The appellant appeals his conviction on four grounds: misapprehension of the medical evidence failing to properly exercise the gatekeeper function with respect to the expert medical evidence of the two doctors, failing to properly apply the burden of proof in concluding that it was the appellant who poured the water on the victim, and unreasonable verdict. His co-accused does not appeal her conviction.

[5]          For the reasons that follow, I would dismiss the appeal.

Background facts

[6]          The victim, C.G., is an adult woman who was in her 20s when the events at the centre of this appeal occurred. She met the appellant, J.R., and his girlfriend, C.A., through her boyfriend at the time. Initially, she and her boyfriend moved into an apartment with J.R. and C.A. However, when C.G. and her boyfriend broke up, he moved out. J.R. and C.A. then moved to another apartment, and J.R. asked C.G. to move in with them, which she did. The three later moved to a third apartment, a two-bedroom, where they remained living at the relevant time.

[7]          C.G. has some physical and mental limitations, including cerebral palsy. During the time she lived with J.R. and C.A., she was on a government disability pension and contributed to the rent and expenses from her pension. C.A. was also on a government disability pension, and similarly contributed to the rent and expenses from that source. Eventually, J.R. received income support through C.A.’s pension as her partner.

[8]          J.R. and C.A. both assisted C.G. with daily tasks such as grocery shopping, cooking, and laundry. J.R. also assisted C.G. with managing her finances and had access to her bank accounts.

[9]          The event that led to the charges against J.R. and C.A. occurred on August 13, 2011, when a neighbour called 911 after seeing C.G. out on her balcony screaming because she was in pain and yelling something to the effect of “I poured water on myself”. When police and paramedics arrived, the door to the apartment was locked and C.G. refused to open it. When an officer was able to speak to C.G. from a neighbouring balcony, she said that she did not want help and that her “roommates will be mad”.

[10]       When police and paramedics eventually got access, they took C.G. to the hospital with extremely serious wounds, including severe burns to over 18% of her body, located mainly on her lower back and right leg, with additional smaller areas of burns on her genitals, left thigh, shoulder, and neck. The burns were infected and covered with blood and puss, causing her clothes to be fused to her body. The wounds emitted a terrible and pervasive smell. C.G. remained in hospital for 13 days. Her wounds did not heal for over a year and she has been left with permanent scars.

[11]       C.G. accused her roommates, C.A. and J.R. of confining, burning, whipping, and sexually assaulting her over a period of several months. They were arrested and charged with 11 counts spanning 7 offences, including assault, aggravated assault, sexual assault, assault with a weapon, sexual assault, aggravated sexual assault, sexual assault with a weapon, and forcible confinement. They were convicted by Leitch J. of all 7 offenses, but following the convictions and before sentencing, C.G. told her brother, D.R., with whom she was then living, that in fact all of her injuries had been self-inflicted. She repeated her recantation in a police statement. As a result, Leitch J. declared a mistrial and ordered a retrial.

[12]       At the retrial, C.G. initially testified that C.A. and J.R. did not assault her sexually or otherwise, that she was not forcibly confined, and that they had never hurt her in any way. She stated that she had burned herself with boiling water on three occasions, describing how she boiled the kettle and applied the water to her body each time. She also described whipping herself with cords. She did this to “punish herself for the way she acted around people” and for her repeated transgressions. She also testified that she had sexual relationships with J.R. and C.A., but they were always consensual.

[13]       Following an application under s. 9(1) and (2) of the Evidence Act, C.G. was cross-examined on her earlier testimony and reverted back to her original position that the appellant, J.R., with the assistance of C.A., had perpetrated all of the injuries on her, that her sexual relationship with J.R. and C.A. was not consensual but motivated by fear, and that she had been abused and confined. She explained that she recanted her original evidence because her brother, D.R, had told her to say that she had lied. She also claimed that D.R. had hit her so hard she had a bruise between her eyes, but when the police interviewed her shortly after, she had no mark on her face.

[14]       C.A. testified and denied that she or J.R. had done anything to C.G., including have sex with her. She also denied being aware of any of C.G.’s injuries until C.G. told her about the burn on her back, which C.A. testified C.G. told her was from taking a hot shower. C.A. added that she asked C.G. if she wanted to go to a walk-in clinic or hospital, but that C.G. refused. The appellant did not testify.

Findings by the Trial judge

[15]       The trial judge was faced with a very difficult task in light of the inconsistent versions given by the victim for her very serious injuries. The trial judge commenced his analysis by acknowledging those difficulties together with his task as the trial judge in the following paragraphs of his reasons:

[34] I have taken into account the whole of the evidence when making these assessments, although I have not recounted all of that evidence in the course of undertaking that analysis in these reasons – I have instead drawn attention to that evidence and to those particular instances that form the central foundations for my findings. 

[35] There is no doubt that this is a very difficult case.  The challenges facing a trier of fact stem from the undisputed evidence that C.G., a vulnerable person in all sense of the word, had presented at the hospital with serious and disturbing injuries while at the relevant time was under the “care” of and residing with both accused. C.A. and J.R. had an exclusive opportunity to commit these acts. On the other hand, there were a serious of different renditions and recantations offered by the complainant and various explanations provided for those changes in her versions of events. 

[36] Indeed, it would be a relatively simple and straightforward task to review the medical evidence along with the photographs of C.G.’s gruesome injuries to parts of her body, including burns to her vagina, the unchallenged evidence of the extreme degree of pain that would be associated with these repetitive type of burns and conclude that no one would or could do this to themselves.  Even with the permutations in the victim’s renderings, one could readily conclude that C.A. and J.R. must have perpetrated these acts by their failing to act or reasonably react to these severe injuries; whether by failing to render proper first aid or address the repetitive nature of the burns.  One could look at C.G.’s childlike, gullible and obsequious behavior and conclude that this vulnerable person could be easily manipulated or coerced to act or refrain from doing certain things even in the face of repeated abuse and assaults.  

[37] However, that is clearly not the test in criminal law and would improperly reverse the legal and persuasive burden of proof onto the defence.

[38] Undoubtedly, this case does not really involve whether the injuries occurred.  The wounds speak for themselves.  While it is true that there is a dispute about the sexual assaults and confinement actually occurring; the live issue in this case is whether some or all of the injuries resulted from acts caused by the accused as principals or parties to the offence or whether they were caused by the complainant or are left unexplained.

[16]       He then addressed a number of inconsistencies in the victim’s evidence about the charges, as well as some historical allegations of rape that she had made against two other brothers of hers, leading to charges that were eventually dropped. At para. 58, the trial judge drew the conclusion that “C.G. may act or say things in order to gain a benefit or to achieve an end without having fully recognized the implications of such acts”, but that she did so without malice. He reviewed and then rejected C.A.’s evidence, finding C.A.’s claim that she did not observe or was not aware of the victim’s injuries not credible.

[17]       He explained how the possible motivation of C.G.’s brother, D.R., had become a significant issue at the trial, but concluded that D.R. did not force his sister to recant or lie and that he had no reason to do so.

[18]       Turning to the specific charges, C.G. gave evidence that both accused asked her to engage in sexual activity with them, which she did sometimes, although he observed at para. 91 that her testimony was “often devoid of detail on significant issues.” C.G. said she was jealous of C.A. and J.R.’s relationship and thought it was mean of J.R. to propose marriage to C.A. in front of her. The trial judge concluded at para. 92 that C.G.’s testimony regarding her sexual relationship with C.A. and with J.R. was “confused and conflicting”, nor, as he observed at para. 103, was it corroborated by any other evidence.

[19]       The charge of forcible confinement was based on C.G.’s allegation that both accused made her stay in the storage closet as a punishment for urinating on the carpet and for other things. She also said that both accused confined her to the outdoor balcony of the apartment. C.G. claimed that the doors leading to the balcony were taped shut, but the police did not find any evidence of that, and she acknowledged at trial that she lied about this fact. The trial judge concluded that while C.G. may have believed she was confined, there was no evidence supporting her claim, nor was it logical that, if either accused was abusing C.G., they would confine her out on the balcony, where she could easily scream for help.

[20]       The counts of assault with a weapon involved allegations regarding attacks with a vase, a lighter, whipping with a cord, and using a vegetable peeler, as well as pouring bleach or Vim down the victim’s throat. The trial judge was not satisfied beyond a reasonable doubt of any of these charges because of the inconsistencies in C.G.’s evidence as well as some fabrication in her testimony. He concluded at para. 117 that he could not accept the victim’s evidence as credible and reliable “without other evidence capable of some confirmation”, which did not come out in the medical or other evidence. He added at para. 119:

At the end of this exercise, I cannot conclude what actually happened. Thus I am left with a reasonable doubt with respect to the aforementioned counts.

[21]       After acquitting the appellant and C.A. of these offenses, the trial judge turned to the final charge of aggravated assault as a result of burning C.G. with boiling water. At the commencement of his analysis, the trial judge stated that having rejected much of C.G.’s evidence, he could not convict based on her testimony alone, and that even after ascertaining and accepting confirmatory evidence, he had to assess the totality of the evidence that he did accept to determine whether the Crown had satisfied its burden beyond a reasonable doubt.

[22]       He then reviewed and considered the evidence relating to these counts from C.G., from the two doctors who treated C.G. when she came to hospital, Dr. Scilley and Dr. Lewell, and also from C.A. I am describing the trial judge’s review and analysis here because it is critical to the issues raised by the appellant on the appeal.

[23]       C.G. gave two versions of how the burns occurred. One was that they were self-inflicted as a form of punishment; the other, that both accused burned C.G. as a form of discipline for her behaviour.

[24]       Although the trial judge found her evidence unclear on specific details of the incidents and confusing, C.G. described three occasions when she was burned with boiling water by the accused. The first time was in the kitchen when J.R. poured hot water from the kettle down her left shoulder and it splashed onto her neck. The second time was also in the kitchen, when J.R. again poured boiling water from the kettle onto her back from the shoulder almost down to the tailbone. She also received some injury to her chest. She could not remember the details as to why J.R. was punishing her, but it related to touching something of his or lying. He told her to take her clothes off and she eventually did, then he poured the water on her. She also testified that on one occasion, the punishment was for not performing cunnilingus properly on C.A. Also on one of the times, C.A. stood by while C.G. rolled on the floor to get away, but C.A. held her down by her shoulders.

[25]       The third time was in the bathroom. C.A. told C.G. to get into the bathtub and told J.R. to boil the kettle. At first, C.G. could not get into the tub because her back hurt from the previous burn, but she eventually did it. J.R. poured the water onto the right side of her rib cage, and it also reached and burned her groin area. She described the pain as 11 out of 10. J.R. told her to take a cold shower. Later, both accused sprayed rubbing alcohol on her wounds to take the infection away. That was also very painful.

[26]       The trial judge then described the evidence of the two doctors called by the Crown, who treated the victim for her burns, Dr. Scilley and Dr. Lewell. Both were qualified to give expert opinion evidence. The trial judge found that they both testified in a credible manner, they did not embellish, and they reasonably conceded points raised by defence counsel. At para. 129, he accepted “their testimony without reservation and their opinion evidence based on their observations and medical reports.”

[27]       Dr. Lewell was the emergency room doctor who treated C.G. on August 13, 2011. He was qualified as an expert in emergency medicine and to give opinions regarding traumatic injury, burns and other wounds and the physical impact of those injuries. The trial judge commented at para. 130 that Dr. Lewell’s testimony “demonstrated a significant amount of experience dealing with burns.”

[28]       Dr. Lewell discussed the injuries depicted on photographs of the victim. The first was of her vaginal area, showing a deep partial thickness burn, swelling of the labia, with a significant infection. The wound went from the top of the thigh through the vaginal area and onto her back. It was consistent with boiling hot water as the cause, rather than a flame or other burn.

[29]       The next showed hot water burns to C.G.’s back and legs. Dr. Lewell described these as an infected burn of significant time duration that had partially healed. In cross-examination Dr. Lewell testified that the injuries on her right flank and mid-posterior, extending to the scapula, could have been caused by one continuous burn event.

[30]       He described the “powerful and pungent odour” from C.G.’s wounds when she arrived at hospital, requiring the medical team to establish special ventilation. He concluded that she had intermediate and deep partial thickness wounds covering 18% of her body surface area. The largest area of injury was the right anterior thigh and lower back, with smaller burns covering the genital area, the left thigh, shoulder, neck and right flank. He opined that the burns were consistent with the scalding story. He estimated their age at the time she came to hospital as three to four weeks old. There was no acute injury at that time.

[31]       C.G. was in hospital with her wounds for 13 days, followed by physiotherapy, with final healing only by November 2012.  Dr. Lewell said that the open wounds would be extremely painful normally requiring narcotic pain medication to manage daily activities, with ongoing pain and itchiness for some time after the wounds had healed.

[32]       He said that the time exposure to the water required to cause such wounds would depend on the temperature of the water, and that near boiling water would be required to cause C.G.’s burns. One of the scenarios of how the burns occurred was that C.G. had burned herself in the shower. A neighbour testified that the water coming out of the taps in her unit was very hot, but not any different than anywhere else that she had lived, and she was never burned by it. Dr. Lewell testified that he had never seen a deep partial thickness burn to the extent of C.G.’s with the extensive debridement and tissue destruction, caused by tap water, and did not believe it was possible.

[33]       Dr. Scilley is a plastic surgeon who specialized in burn injuries, who attended to C.G. in the hospital after she was admitted and continued to follow up with her in an out-patient clinic following her release from hospital. He said while it was difficult generally to date burns with precision, he estimated that C.G.’s burns were three to four weeks old when she came to hospital in August 2011. He testified that her burns were not full thickness but mixed depth, which was the more painful category.

[34]       Both doctors had seen serious cases of self-inflicted burns in their practices. And Dr. Lewell stated that it was not uncommon for patients who self-harm to repeat behaviour. Both doctors stated that the pain associated with C.G.’s burns when they were suffered would be extreme. Dr. Lewell testified that it would be “one of the most excruciating, uncomfortable pain that I could possibly imagine” and Dr. Scilley testified that the pain, particularly given the large surface area of the burns, would be “extremely uncomfortable”. While Dr. Lewell acknowledged that it was theoretically possible that burns such as C.G.’s could be self-inflicted, his view was that the patient would have an almost involuntary reflex to move away from the cause of the pain.

[35]       He further opined that in this case, the location and pattern of the burn suggested that she was lying in the hot fluid for a long period of time, and that would be contrary to the natural human instinct to get up and try to minimize the pain. In cross-examination, he explained that one of the burn patterns was consistent with C.G. being in a supine position and inconsistent with her being in an erect position.

[36]       At para. 144, the trial judge summarized the doctors’ evidence on the question of their opinions on the likelihood of the wounds being self-inflicted:

It is true that neither Drs. Scilley nor Lewell could exclude the possibility that the injuries C.G. presented were self-inflicted. Dr. Scilley opined that the self-harm scenario would be highly unusual given its repetition along with the amount of pain associated with these types of burns. While Dr. Lewell has seen self-inflicted injury many times in his practice, he had never seen an extensive wound like this caused by self-abusive behavior.

[37]       He then made his findings based on his analysis of all the evidence. At para. 146, he rejected C.A.’s evidence about when she was aware of C.G.’s burns and their extent, finding her evidence inconsistent with the doctor’s evidence about how old the burns were, their “profound” visual appearance, and their “extraordinary smell”.

[38]       Next, the trial judge analyzed C.G.’s story of pouring boiling water on herself compared with the physical dynamics of her injuries, and concluded that her description could not withstand scrutiny. In particular, he rejected her evidence that she poured boiling water on herself from a kettle while standing up, then kicked the kettle out of her own hand and rolled on the ground, saying at para. 147: “I cannot fathom how those calisthenics could manifest themselves in the circumstances.” Also, C.G.’s description of positioning herself in the tub and pouring boiling water did not correspond with the alignment and location of the burn injuries – the directionality of the wounds instead suggested that she was lying down when the water was poured.

[39]       The trial judge also rejected the defence submission that the burns could have been caused by hot tap water as mere speculation. There was no evidence of the temperature of the water in the building. He also accepted the doctors’ evidence that they had not seen such extensive burning from tap water.

[40]       Finally, the trial judge accepted the doctors’ clinical impressions and opinion as confirmation of how the burns were inflicted. He found their testimony as well as the physical evidence regarding the severity, location and distribution of the burns to be inconsistent with a self-harm scenario, and at para. 149 accepted “their overall opinion that these burns were not self-inflicted.”

[41]       Acknowledging that C.G.’s recantations were problematic, the trial judge rejected her self-harm version and accepted that the burns were inflicted by the accused. He concluded that her self-harm version was not logical or consistent with the nature, mechanism, and position of the burn injuries she sustained.

[42]       Under the heading “Conclusion”, the trial judge found that the medical opinion evidence provided reliable confirmation of the manner of the infliction of the wounds. He also applied logical inferences in considering how C.G. would have been positioned in order to sustain the burn wounds she had. He concluded that based on all the evidence, he was satisfied beyond a reasonable doubt that the accused had exclusive opportunity and either individually or together applied boiling water on the victim’s right thigh, back, neck, shoulder, and groin area.

[43]       As a “final thought”, at para. 153, the trial judge addressed media reports and submissions from counsel and other participants in the trial referring to the case as the “torture case”. He stated that he had concluded that there had been at least two distinct burning incidents. He found, referring to one of the photographs of the burns, that even with some debridement (that is, removal of the damaged tissue from the wound), the burn on the victim’s right flank was more recent than the one on the mid-thorax. However, he was not prepared to find a pattern of a systemic or prolonged abusive acts amounting to torture.

[44]       In convicting the accused of the offence of aggravated assault, the trial judge found that the appellant had intentionally poured boiling water on C.G., and that C.A. was either a principal or aided and abetted J.R. as a party.

Issues

[45]       The appellant raises four issues on the appeal:

1)   The trial judge misapprehended the evidence of the expert witnesses;

2)   The trial judge failed to exercise his gatekeeper function by allowing Dr. Lewell to give opinion evidence that was anecdotal and speculative on the issue of whether the wounds could be self-inflicted;

3)   The trial judge misapplied the burden of proof by finding that it was the two accused who intentionally burned the victim; and

4)   The verdict was unreasonable.

Analysis

(1)         Issue 1: Did the trial judge misapprehend the expert evidence?

[46]       The appellant submits that in the face of a very dangerous and unreliable witness in the complainant, the trial judge properly looked for corroboration of her testimony in the evidence of the two expert witnesses, the two doctors who treated C.G. However, the appellant maintains that the trial judge erred by misapprehending the doctors’ evidence in two ways. I will address each in turn.

[47]       At the beginning of his review and analysis of the doctors’ evidence, the trial judge stated that he accepted “their testimony without reservation and their opinion evidence based on their observations and medical reports.” The appellant states that the trial judge misapprehended the evidence of the doctors because there were no “reports”.

[48]       I would reject this objection. Dealing first with Dr. Scilley, he was the plastic surgeon who treated the victim when she was brought to the hospital on August 13, 2011 and continued to treat her for over a year. To set the stage for his testimony, Crown counsel asked him to confirm that he had had an opportunity to review some of his documents, notes, and letters regarding C.G.’s treatment, which he did. Later, Crown counsel referred Dr. Scilley to an “out-patient document dated September 9, 2011 report prepared by you that you have in front of you (emphasis added)”. Finally, Dr. Scilley prepared a letter to the Crown in 2014, which was referred to in evidence and marked as exhibit A for identification. Crown counsel also referred to another letter and showed it to the trial judge, but it was not marked for the record.

[49]       It is clear from this review that the trial judge was entitled to refer to the documentation that Dr. Scilley relied on and referred to as “medical reports” during the course of his testimony, and he made no error in doing so.

[50]       Similarly, Dr. Lewell, who also treated the victim in the emergency department, referred to a statement to refresh his memory. When the trial judge canvassed with counsel whether there was any objection, he asked if there were any submissions on refreshing one’s memory from a “statement or report”.

[51]       In my view, it is apparent from the record and the trial judge’s use of the word “report” that he did not misapprehend whether the doctors had relied on any reports, and that he made no error in stating that they had made use of medical reports in providing their evidence.

[52]       The appellant alleges secondly, that the trial judge’s conclusion that the doctors’ overall opinion was that the wounds were not self-inflicted, was based on a misapprehension of Dr. Scilley’s evidence. The appellant argues that Dr. Scilley did not say that the wounds could not have been self-inflicted. Instead, his opinion was based on the premise, put to him in cross-examination, of the unlikelihood that a person would be able to inflict boiling water on her own body more than once to the same place. However, he could give no opinion on the premise itself, whether the victim’s burns were caused by one or more than one incident.

[53]       In examination in chief, Crown counsel asked Dr. Scilley if he could give an opinion as to whether the injuries were caused by one or more than one incident. He responded:

Um, again they – they all looked to be about the same age, but you know, it’s very difficult to be specific in terms of, you know, what the age of the burn is, whether one was there a week before another, several weeks out from the time of injury. Certainly there were no acute burns which would have happened within the few days prior to her coming to hospital.

[54]       It was only in response to a hypothetical question from counsel for C.A. in cross-examination, asking whether it was conceivable that a person would pour boiling water on herself more than once, that Dr. Scilley answered:

I mean anything is possible. I mean I cannot say no that could not be done by - by somebody. People will do unusual things to themselves under unusual circumstances and in unusual conditions. Can I say absolutely not? I cannot. It would be unusual I think for it to be done on a repeated basis um, just because of the pain associated with it. But I cannot say it could not have been done, no.

[55]       As part of his analysis of whether the wounds were self-inflicted, the trial judge concluded that there were at least two separate incidents where boiling water was poured on the victim. He then relied in part on the doctor’s evidence that a person would not likely subject herself to such pain more than once, to conclude that the burns were not self-inflicted.

[56]       The appellant submits that in making his finding that there were at least two incidents of scalding, the trial judge misapprehended the medical evidence. The trial judge stated, referring to the photograph of the victim’s burned back, that he accepted that the presentation of the superior right flank wound was fresher than the mid-thorax burn injury, even with some debridement.

[57]       Both doctors testified that they could not tell from the state of the wounds whether there was one or more burning incident. The wounds were approximately 3 to 4 weeks old and none was acute or only several days old. Based on the presentation of the wounds, it was possible that there was more than one application of boiling water or that the wounds were incurred during one burning incident. Also, Dr. Lewell testified that debridement of the scab could potentially signify an older wound in a different stage of healing than the other wounds around it, but not necessarily, because debridement could also happen from removal of clothing, cleaning of the wound, or dressing changes. There was also evidence that J.R. had used a vegetable peeler, with C.G.’s consent, to remove some of the scab. Therefore, the trial judge was fully aware of the ways in which debridement could have occurred in this case.

[58]       I would reject the appellant’s submission that the trial judge misapprehended the evidence of Dr. Scilley on the issue of how many burning incidents occurred. While the doctors could not give an opinion on that issue, they said it was possible for the wounds to have resulted from burns inflicted at different times.

[59]       The doctors’ opinions were based only on their medical analysis. However, the trial judge was entitled to use the evidence of the victim that the appellant poured boiling water on her three times and that it was very hard for her to lie down in the bath the second time because her back hurt so much from being burned the first time, in the context of all of the evidence, to make a finding on that issue.

[60]       Once the trial judge rejected the victim’s testimony relating to the self-harm scenario and found confirmatory evidence that restored his faith in the victim’s account of how both accused caused her burn injuries by pouring hot water on her, he was entitled to rely on the aspects of her testimony that related to this issue, including her testimony that there were three incidents in which she was burned. See R. v. Kehler 2004 SCC 11 at para. 22, {2004] 1 S.C.R. 328.

[61]       While his reference to the photograph as showing that part of the wound was “more fresh” was not based on the positive opinion of the doctors, it was not inconsistent with their evidence. I understood it to be his conclusion, based on all the evidence, of what the photograph depicts. He was entitled to make this finding after a consideration of the full record before him. 

[62]       The trial judge was not prepared to rely on the victim’s evidence taken on its own. That resulted in the acquittals on all of the other charges. However, on the aggravated assault charge, the evidence of the extremely serious injuries provided corroboration that the burning had occurred. Because there was corroborative evidence in the form of the injuries that an assault had occurred, the trial judge was entitled to consider the victim’s evidence, together with the other evidence, including the physical evidence and the evidence from the doctors regarding the age, severity, and physical cause of the burns, to decide whether the wounds were from self-inflicted scalding.

[63]       The trial judge found that it was not physically possible for the severe burn wounds on the victim to have been caused the way she described in her self-infliction version. This was based in part on Dr. Lewell’s testimony. And he found corroboration for that conclusion which was based on the physical evidence, from the evidence of the doctors, that he fairly characterized as an overall opinion that the wounds were not self-inflicted.

[64]       The trial judge did not misapprehend the firmness of the doctors’ opinions on the issue. He set out in his reasons that both doctors testified that it was possible that the wounds were self-inflicted. However, Dr. Lewell based his view on the unlikelihood of remaining lying down in boiling hot water given the terrible pain, while Dr. Scilley’s limited evidence was based on the premise in the hypothetical of more than one burning incident.

[65]       In my view, the trial judge made no error in characterizing the doctors’ overall opinion as concluding that the wounds were not self-inflicted. Besides the quoted evidence from Dr. Scilley, Dr. Lewell stated that he had seen a lot of self-abusive behaviour from his experience in the emergency department, but he had not seen such an extensive wound as the victim’s that had been caused by self-harm. He also referred to the location of the burn on her back as indicating prolonged exposure to the water while laying down, and stated that this would be contrary to the natural human instinct to get up in order to minimize the discomfort and to the involuntary reflex to move or run. I will discuss the appellant’s objection to Dr. Lewell’s opinion under issue 2.

(2)         Issue 2: Did the trial judge fail to exercise his gatekeeper function in allowing Dr. Lewell to give anecdotal opinion evidence?

[66]       Dr. Lewell was qualified by the court as an expert medical doctor and an expert in emergency medicine, qualified to give opinion evidence on traumatic injury, burns and other wounds and the physical impact of those injuries.

[67]       Following his graduation from medicine in 1995, he specialized for 5 years in emergency medicine and was qualified by the Royal College of Surgeons as a specialist in this area. He began full-time practice at two hospitals in 2000 and teaching as an associate professor in emergency medicine at the University of Western Ontario in 2006. He had been the trauma team leader for the London Health Sciences Centre since 2000. In cross-examination on his qualifications, Dr. Lewell explained that his area of specific interest is traumatic etiology, that is the initial critical resuscitation phase in the emergency department, including major and smaller burn injuries. When defense counsel proposed to him that he lacked expertise in burn injuries in specific, he explained that burns are a “very common presentation to the emergency department” and that major burn injuries therefore “fall within the domain of emergency medicine”.

[68]       Dr. Lewell treated the victim, C.G., in the emergency department when she was brought in on August 13, 2011. When Crown counsel asked him if her burns could have been caused by water from a tap, C.A.’s defence counsel objected on the basis that this was beyond the doctor’s expertise. Crown counsel responded by saying that she believed Dr. Lewell had been qualified to give opinion evidence regarding the cause of C.G.’s injuries. The court agreed with the Crown.

[69]       Crown counsel later asked about what pain the victim would have suffered and the doctor responded that “this would be one of the most excruciating uncomfortable pain that I could possibly imagine.” He was then asked if burning oneself was a possible scenario and he said it was possible. Crown counsel then asked:

Q. All right. Given that you are able to give an opinion as to whether or not it – would be those injuries, those burn injuries that you observed would be consistent with someone burning themselves intentionally? In other words is that a possible scenario?

A. If the – the burn is consistent with – the burn in my opinion in consistent with a hot boiling fluid um, it is possible that could be poured upon oneself…

Q. All right.

A. … um, to answer your question.

Q. All right and do you have an opinion about whether it would – the burns you saw would be consistent or not with a patient pouring scalding water on themselves more than once? And – and I’d like you to take into account – if – if you can give an opinion, the level of pain that would be occasioned when that scalding liquid was poured.

A. In the emergency department I see many patients who have self-abusive behaviour. I’ve never seen an extensive wound like this caused by self-abusive behaviour or self-harm. Um, although theoretically it is possible, um yet in my opinion there’d be almost an involuntary reflex to move or to run. I’ve seen patients light themselves on fire for instance and run while on fire and the burns that resulted from that, yet there’s always involuntary attempt to extinguish that or to move. Um, to me the location of the burn here seems to imply that its splashed posteriorly and there was a prolonged period of time where they were laying in this fluid, if that is the – ultimately the underlying cause. And um – and that would be – in my mind it would – it would be contrary to the natural human instinct to get up and to try to minimize the discomfort. 

[70]       The only other questions regarding self-harm were asked by defence counsel in cross-examination. Counsel for the appellant indicated that she had had a discussion with the doctor before court that day about the issue of self-harm. She then asked if his earlier evidence, quoted above, was that it was his opinion that the victim’s injuries were not caused by self-harm. and Dr. Lewell responded:

Um, it’d be my – it was my clinical impression on the day um, that the – the patient described for me the mechanism as part of my history how the burns were sustained. Um, I – I examined the patient and felt these burns were consistent with the mechanism that was described, therefore it was my opinion on the day that that would be consistent and therefore these – it was not my opinion on the day that these were self-inflicted. Perhaps that – that more accurately reflects my understanding of how the day went. It was only until today that um – it has never been in my mind at any time that this could possibly have been self-inflicted in my understanding is how this – this tragedy unfolded.

[71]       The appellant submits that the doctor’s two answers to Crown counsel’s question – that he had never seen an extensive wound like the victim’s caused by self-harm, and that the location of the burn implied that the victim was lying in the fluid for a long period of time, which would be contrary to natural human instinct – were anecdotal and speculative, lacked probative value, and should not have been admitted or relied upon by the trial judge.

[72]        It is now well-established that judges must be “vigilant in monitoring and enforcing the proper scope of expert evidence” because of the impact it can have on a trial. R. v. Sekhon, 2014 SCC 14, [2014] 1 S.C.R. 272, at para. 46. Justice Moldaver explained that while such concerns are more important in jury trials, judges hearing cases alone must also ensure that expert evidence remains within its proper scope following the initial ruling qualifying an expert. And it is an error for a trial judge to give any weight to inadmissible evidence.

[73]       The appellant’s position is that those two answers given by Dr. Lewell were not supported by any research, peer-reviewed literature, or other data to substantiate their validity. He submits that it was an error for the trial judge to rely on this evidence, similar to the error identified in R. v. Awer, 2017 SCC 2, [2017] 1 S.C.R. 83.

[74]       Awer involved an appeal from a conviction for sexual assault. The central issue was how the complainant’s DNA got onto the appellant’s penis. Each side called an expert. The Crown expert’s opinion was that DNA could only transfer from a wet surface such as from a vagina or saliva, while the defence expert disagreed. The Crown expert relied on his own observations and non-peer reviewed articles in non-academic journals. The defence expert challenged the Crown expert’s opinion as speculative and lacking scientific foundation. The trial judge accepted the Crown expert’s evidence and convicted the appellant. The Court of Appeal for Alberta upheld the conviction. The Supreme Court of Canada allowed the appeal on the basis that the trial judge had applied materially different levels of scrutiny to the evidence of the experts. This error warranted a new trial.

[75]       In discussing the admissibility of the evidence given by the Crown expert, the court suggested that a voir dire might be required at the new trial to determine whether the evidence was sufficiently reliable to be admissible. Justice Moldaver J. explained at para. 2 that:

It could conceivably amount to circumstantial evidence derived from the expert’s experience, from which an inference as to the origin of the complainant’s DNA could reasonably be drawn.”

[76]       In stating that the Crown expert’s evidence in Awer could be admissible, he compared it to the inadmissible expert evidence in Sekhon of a police officer regarding what drug couriers know about the drugs they deliver. The Supreme Court found that evidence to be inadmissible because it had no probative value, consisting of false logic used to infer the appellant’s state of mind when transporting illicit drugs.

[77]       In my view, the evidence of Dr. Lewell was not similar to the evidence of the Crown experts in either Awer or Sekhon. Dr. Lewell was qualified as an expert in emergency medicine including burn injuries, with 15 years of experience at the time of the trial. His entire evidence was based on his knowledge and experience, including his evidence regarding the nature, positioning, and age of the wounds, the pain that would be associated with them, their likely cause by burning with boiling or very hot water, as well as his past experience with patients presenting with injuries caused by self-harm.

[78]       The trial judge was well aware of the extent to which Dr. Lewell’s opinion regarding the possibility that the wounds were self-inflicted was based on his experience. He was also well-aware that Dr. Lewell said that self-harm was a possibility. Dr. Lewell was not dogmatic on this point. Having made reference to all aspects of the doctor’s evidence on this issue in his reasons, there is no basis to suggest that the trial judge did not carefully scrutinize it. He decided to give it some weight in the context of all the other evidence.

[79]       Unlike the expert evidence tendered in Sekhon, which was inadmissible because it had no scientific basis. Dr. Lewell’s opinion evidence was admissible. At the very least, it was circumstantial as described by Moldaver J. in Awer. It was based on his expertise in understanding and treating burns generally, and in treating C.G.’s injuries specifically. It was up to the trial judge to determine what weight to give the evidence.

[80]       The appellant now impugns Dr. Lewell’s opinion because he did not back it up with scientific texts and peer-reviewed research. Dr. Lewell was not asked to provide this sort of testimony by either counsel at trial. And it is understandable that he did not volunteer such information himself because, as quoted above, Dr. Lewell had not been asked to consider the self-harm issue prior to the trial.

[81]       I do not agree that Dr. Lewell’s evidence was anecdotal, speculative and irrelevant. He was qualified to give expert opinion evidence about traumatic injury, burns and other wounds. But he was also testifying as the treating physician. It was in this dual capacity that he answered counsel’s questions. He did not overstate or offer a definitive conclusion, indeed said that self-harm was a possibility. It was open to the trial judge to consider as he did this evidence.

[82]       Furthermore, neither defense counsel for the appellant or C.A. objected to any of the evidence the appellant now claims should not have been admitted. Some of the evidence was in fact elicited by defense counsel on cross-examination, and both the Crown and the defence sought to make use of this evidence to support their positions. The lack of objection, the way that Dr. Lewell was cross-examined by defense counsel, and the use of his evidence by both the Crown and the defense suggests that Dr. Lewell’s opinion evidence was not considered impermissible opinion evidence prejudicial to the appellant’s position at trial: see R. v. Ajise, 2018 ONCA 494, at para. 27; and R. v. Potts, 2018 ONCA 294, at paras. 17 and 55.

[83]       As a final point, It is unclear from the record in this case whether the Crown complied with s. 657.3(3)(b) of the Criminal Code,[1] which requires the Crown to provide a summary of the anticipated opinion to be given by an expert witness at trial.  If this provision is not complied with, s. 657.3(4)[2] provides several remedies that the defence may request from the court.

[84]       By asking any expert witness to prepare a report or at least a summary of any opinion evidence that the witness will be asked by the Crown to give at trial, as well as the basis of such evidence, many of the issues that have caused concerns in the case law with the propriety of expert evidence will be alleviated. As part of the gatekeeper function, the trial judge may canvass with counsel whether expert witnesses will be called and whether counsel have provided reports or summaries in compliance with s. 657.3 of the Criminal Code. The issue should also be addressed at the prehearing conference.

(3)         Issue 3: Did the trial judge fail to apply the burden of proof beyond a reasonable doubt in finding that it was the two accused who intentionally burned the victim?

[85]       The appellant submits that the trial judge erred by leaping to the conclusion that the two accused were the perpetrators of the burning once he found that the burns were not self-inflicted by C.G. He says that the trial judge did not articulate how he concluded that the two accused had the exclusive opportunity to commit the offence, or the basis of his finding that it was the appellant who poured the boiling water on the victim and that C.A. either poured the water as well or assisted.

[86]       The appellant’s essential submission is that the trial judge was not entitled to use the victim’s testimony to make any findings without specific corroboration. I do not agree.

[87]       The trial judge instructed himself clearly and accurately regarding the burden of proof on the Crown, and the meaning of reasonable doubt. He stated that he had taken into account the whole of the evidence as he was obliged to do. He explained that it would amount to a reversal of the burden of proof to look simply at the injuries and the evidence of the extreme pain they caused and conclude that no one would do that to herself, or that the two accused must have done it because they failed to reasonably react to the injuries. Based on the evidence describing how C.G. was living with the two accused and under their care, he stated that they had the exclusive opportunity to commit the offences. At para. 38, he identified the live issue as:

[W]hether some or all of the injuries resulted from acts caused by the accused as principals or parties to the offence or whether they were caused by the complainant or are left unexplained.

[88]       He then reviewed the evidence of all the key witnesses and conducted his analysis.

[89]       The trial judge conducted a significant analysis of C.G.’s testimony, her childlike nature, her ability to understand and her ability to express herself, the motivation for her mendacity, and the inconsistencies in her testimony.  On the charges where he entered acquittals, he found her testimony too confused and conflicting to convict, with no corroborative evidence to support it. When he came to assess the evidence on the aggravated assault count, he stated that he was unable to conclude that an offence occurred based on her evidence standing alone, and that even with confirmatory evidence, he had to assess the totality of the evidence that he did accept to determine whether the Crown had satisfied its onus beyond a reasonable doubt. He then reviewed the relevant evidence of C.G., of C.A., and of the two doctors.

[90]       Because the trial judge necessarily had significant concerns, with C.G. as a witness, he subjected her evidence to very careful scrutiny. However, he was entitled to accept parts of her story in the context of all of the evidence that he did accept.

[91]       The only live issue at trial was whether the harm was self-inflicted or perpetrated by the accused. The trial judge’s statement that they had the exclusive opportunity was not in dispute. The trial judge accepted C.G.’s evidence that it was the two accused who burned her and that it was the appellant who poured the boiling water from the kettle. Having found that the victim did not pour boiling water on herself, the trial judge was entitled to accept C.G.’s evidence regarding who poured it on her. He made no error in doing so.

(4)         Issue 4: Unreasonable verdict

[92]       This ground of appeal is contingent on the court finding errors in the trial judge’s use of the medical evidence and in misapplying the burden of proof on the Crown beyond a reasonable doubt. Had the court found such errors, the appellant asks this court to reweigh the evidence and find that the appellant should be acquitted.

[93]       As I have found no error by the trial judge, there is no basis to consider this ground of appeal.

Conclusion

[94]       I would dismiss the appeal.

Released: “K.F.” July 9, 2018

“K. Feldman J.A.”

“I agree. M. Tulloch J.A.”

“I agree. M.L. Benotto J.A.”