R. v. Trotta, 2007 SCC 49, [2007] 3 SCR 453

                                                 SUPREME COURT OF CANADA

Between:

Marco Trotta and Anisa Trotta

Appellants

v.

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Trotta, [2007] 3 S.C.R. 453, 2007 SCC 49

Marco Trotta and Anisa Trotta                                                                                       Appellants

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Trotta

Neutral citation:  2007 SCC 49.

File No.:  30987.

2007:  October 12; 2007:  November 8.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Criminal law — Trial — Verdicts — Accused convicted of several offences — Fresh expert evidence available after convictions upheld on appeal discrediting Crown witnesses — Whether verdicts would necessarily have been the same — Whether manslaughter conviction should be substituted for conviction for murder — Whether accused should be acquitted of murder and criminal negligence causing death.

The accused, M and A, were convicted of offences committed against their infant son.  M was convicted of second degree murder, aggravated assault and assault causing bodily harm; A, of criminal negligence causing death and failure to provide the necessaries of life.  The Court of Appeal upheld their convictions.  Following the appeal, expert opinions by P and another expert became available.  This fresh evidence adduced before this Court discredits evidence given by S, an expert called by the Crown, and renders unreliable evidence given by C, a Crown witness.

Held:  The appeals should be allowed.

The convictions of the accused should be set aside and a new trial ordered with respect to the offences of which M and A were convicted.  S’s evidence, which is now conceded to be unreliable, was central to the Crown’s case.  S’s evidence may have influenced the jury’s conclusion on both the causation and intent elements of the murder charge.  It would therefore be inappropriate to substitute a conviction for manslaughter for M’s conviction for murder.  Acquittals on the counts of murder and criminal negligence causing death would also not be appropriate because it cannot be said that a properly instructed jury, acting reasonably, could not find the accused guilty of the homicide‑related offences based on the remaining evidence.  Lastly, although the fresh evidence relates mainly to the convictions for murder and criminal negligence causing death, it nonetheless bears as well, albeit to a lesser degree, on the other counts, and it would be speculative and unsafe to conclude that any of the verdicts would necessarily have been the same but for S’s evidence.  To attempt at this stage to insulate the effect of S’s evidence on one count from its possible effect on the others would amount to an unwarranted exercise in appellate speculation.  [5-7] [13-14]

APPEALS from a judgment of the Ontario Court of Appeal (Doherty, Sharpe and Simmons JJ.A.) (2004), 191 O.A.C. 322, 190 C.C.C. (3d) 199, [2004] O.J. No. 4366 (QL), affirming the convictions of the accused.  Appeals allowed.

Michael Lomer, for the appellant Marco Trotta.

James Lockyer, for the appellant Anisa Trotta.

Lucy Cecchetto, for the respondent.

The judgment of the Court was delivered by

Fish J. —

                                                                              I

1                                   Marco Trotta and his wife Anisa Trotta stand convicted of culpable homicide and other offences, all concerning the short life and tragic death of their infant son Paolo.

2                                   At the conclusion of their joint trial before judge and jury, Marco Trotta was found guilty of second degree murder, aggravated assault and assault causing bodily harm; Anisa Trotta, of criminal negligence causing death and failure to provide the necessaries of life.  Their convictions were upheld by the Court of Appeal for Ontario ((2004), 191 O.A.C. 322).

3                                   The outcome of their present appeals to this Court depends on fresh evidence available neither at the time of trial nor when their convictions were upheld by the Court of Appeal.  We have concluded that a new trial must be had on all counts.  It would therefore be inappropriate to say more about either the fresh evidence or the evidence at trial than is necessary to explain our decision.

II

4                                   Essentially, the fresh evidence — mainly the expert opinions of Dr. Michael Pollanen and Dr. Simon Avis — discredits the evidence given at trial by Dr. Charles Smith, an expert called by the Crown.  And the evidence of a second Crown witness at trial, Dr. David Chan, has been rendered unreliable as a result.

5                                   It is conceded by the Crown that the fresh evidence should be admitted and that Marco Trotta’s conviction on the murder charge cannot stand.  With respect to that count, however, the Crown urges us to substitute a conviction for manslaughter instead of ordering a new trial. The Crown contends that the impugned evidence of Dr. Smith could have affected the jury’s finding on the fault element, or mens rea, that distinguishes murder from manslaughter, but not on the actus reus, or element of causation common to both offences.  We do not find this submission persuasive.  On the contrary, we believe that the evidence of Dr. Smith may well have influenced the jury’s conclusion on both essential elements of the murder charge — that Mr. Trotta caused Paolo’s death and that he did so intentionally.

6                                   In the Crown’s view, moreover, the fresh evidence has no bearing on any of the other convictions of either appellant.  We are therefore urged by the Crown to dismiss the appeals in respect of those convictions.  As we shall presently see, this submission fails as well.  We recognize that the fresh evidence adduced in this Court relates mainly to the appellants’ convictions for murder and criminal negligence causing death.  It nonetheless bears as well, albeit to a lesser degree, on the other counts.

7                                   Both appellants, on the other hand, seek acquittals on the counts of murder and criminal negligence causing death, and urge us to order a new trial only on the remaining counts.  We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acting reasonably, could find the appellants guilty of the homicide-related offences of which they were convicted at trial.

III

8                                   It was the position of the Crown at trial that Marco Trotta repeatedly assaulted Paolo from shortly after his birth in September 1992 until his death in late May 1993, and that Paolo’s death resulted from a final assault sometime shortly before he died.  In his charge to the jury, the trial judge summarized the Crown’s position this way:

Only by that evidence led at this trial which you accept does the Crown seek to prove to you beyond a reasonable doubt that Marco Trotta engaged in a pattern of abuse, a mode of assaultive behaviour towards his infant son for the duration of that short life and not only did his violent actions endanger the life of Paolo by such aggravated assaultive behaviour as in count two, and actually cause bodily harm to him by the continuing assaults, count three, but they escalate[d] to such a degree after May 6th, 1993, that they culminated in his murder by May 29th, 1993, and that is count one.

9                                   Moreover, in considering the reasonableness of the jury’s verdict on the murder count, the Court of Appeal expressly noted the potential link between the evidence of lifetime abuse and the death of Paolo, and concluded (at para. 31):

There was cogent, if not overwhelming, evidence that Paolo was a battered child and that Marco was his abuser.  On the evidence, the jury could find that the physical abuse escalated during Paolo’s life and continued until very shortly before Paolo’s death.  There was evidence that Paolo’s death was not the result of any disease process, natural causes (e.g. SIDS [Sudden Infant Death Syndrome]) or accidental trauma.  Dr. Smith’s evidence indicated that his death was consistent with head trauma and/or asphyxia, both of which could occur as a result of an assault.  On the totality of this evidence, a reasonable jury could conclude that the pattern of abuse of Paolo by Marco culminated in Paolo’s death at the hands of Marco.  This finding was available even if the jury could not decide the exact nature of the final assault. [Emphasis added.]

10                               Again, in the words of the Court of Appeal (at para. 84):

The Crown relied on [Dr. Smith’s] evidence to eliminate certain possibilities (e.g. disease and SIDS) and to point to the most likely possibilities, head trauma and/or asphyxiation.  The Crown contended that when Dr. Smith’s evidence was put with the rest of the evidence of ongoing abuse, the resulting “big picture” left no doubt that Paolo died at the hands of his father. [Emphasis added.]

11                               The Court of Appeal identified certain errors committed by the trial judge in his conduct of the trial and in his charge to the jury.  He was found to have erred in admitting some of the evidence concerning Marco Trotta’s demeanour.  The judge’s instruction on causation was described as “unfocussed” and he was found to have made an “inappropriate” remark in his charge to the jury (paras. 58 and 81).  Finally, with respect to a factual error made by the trial judge, the Court of Appeal stated (at para. 91):

The factual error made by the trial judge in his review of Dr. Smith’s evidence was significant.  The error related to an important part of the evidence given by an important witness.  The trial judge also repeated the error on one other occasion in the course of his instructions. 

The Court of Appeal was nonetheless satisfied that none of these errors could have affected either the fairness or the outcome of the trial.

12                               As mentioned at the outset, however, neither the trial judge nor the Court of Appeal had the benefit of the fresh evidence adduced in this Court.  That evidence places in a fresh light the trial judge’s unfortunate errors and the conclusion of the Court of Appeal as to their effect on the outcome of the trial.

IV

13                               In deciding that a new trial must be had on all the counts, we bear in mind particularly:

(1)  the central importance of Dr. Smith’s evidence to the Crown’s case at trial;

(2)  the Crown’s position throughout the trial as to the relationship between the charges;

(3)  that the factual error made by the trial judge in his review of Dr. Smith’s evidence was found by the Court of Appeal to be significant, and later repeated;

(4)  that Dr. Smith’s evidence is now conceded to be unreliable;

(5)  that the Court of Appeal identified several errors made at trial that related not only to the homicide charges, but to the other counts as well;

(6)  the fact that the Crown chose to proceed on all the counts against both accused at a single trial — and alleged, moreover, that all five offences had occurred within an overlapping time frame;

(7)  that Dr. Smith testified not only as to the cause of Paolo’s death — the basis of the homicide charges — but also as to Paolo’s previous injuries, the basis of the other counts;

(8)  that it is impossible to determine what effect Dr. Smith’s evidence (and that of Dr. Chan) had on the jury’s evaluation of the Trottas’ credibility with respect to their out of court explanations as to those injuries;

(9)  the fact that these explanations were put into evidence by the Crown as part of its case against the appellants; and

(10)  that, understandably, the trial judge did not instruct the jury to limit its consideration of the evidence of Dr. Smith and Dr. Chan to the homicide counts.

14                               In this light, we think it neither safe nor sound to conclude that the verdicts on any of the charges would necessarily have been the same but for Dr. Smith’s successfully impugned evidence.  To attempt at this stage to insulate the effect of Dr. Smith’s evidence on one count from its possible effect on the others would amount to an unwarranted exercise in appellate speculation.

15                               Plainly, then, if a new trial must be had, as we think it must, the preferable course is to order an untainted trial on all counts.

V

16                               For all of these reasons, both appeals are allowed, the appellants’ convictions are set aside, and a new trial is ordered with respect to the offences of which they were convicted.

17                               Having reached that conclusion for the reasons given, we find it is unnecessary to consider the issue of post-conviction disclosure raised by the appellants.  That issue has become entirely moot and should therefore be left for another day.

Appeals allowed.

Solicitors for the appellant Marco Trotta:  Lomer, Frost, Toronto.

Solicitors for the appellant Anisa Trotta:  Lockyer Campbell Posner, Toronto.

Solicitor for the respondent:  Attorney General of Ontario, Toronto.