DATE: 2006-06-19

DOCKET: C41097

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOPHER COWELL (Appellant)

BEFORE:

SHARPE and JURIANSZ JJ.A. and LANE J. (ad hoc)

COUNSEL:

Martin Kerbel, Q.C.

for the appellant

Christine Bartlett-Hughes

for the respondent

HEARD:

June 15, 2006

On appeal from the judgment of Justice Thomas A. Heeney of the Superior Court of Justice dated December 6, 2002.

E N D O R S E M E N T

[1] The appellant appeals his conviction for the first-degree murder of his wife Shelly Cowell. The appellant admitted to having unlawfully caused his wife’s death but the Crown did not accept his plea of guilty to manslaughter. After a four-week trial before a judge and jury, the appellant was convicted of first-degree murder.

[2] At the opening of oral argument before this court, counsel for the appellant abandoned the grounds of appeal with respect to the admissibility of a number of hearsay statements of the deceased and the trial judge’s instruction to the jury with respect to those statements.

[3] The appeal turns on the two remaining grounds.

(1) Did the trial judge in err by refusing to admit a statement the accused made to his father?

[4] The appellant submits that the trial judge erred by refusing to admit a statement he made to his father within days of the death of his wife: “I killed Shelley. I lost it. I just lost it.” The appellant submits that this statement should have been admitted as being relevant to his state of mind at the time he caused his wife’s death.

[5] In his opening statement, Crown counsel referred to the first part of the statement, “I killed Shelley”. In turn, defence counsel referred to the words “I lost it. I just lost it”. The statement was never tendered during the trial and the trial judge was not asked to rule on its admissibility. The trial judge did, however, make a general ruling that statements made by the accused and two others were not admissible at the behest of the accused on the basis of the general rule laid down in R. v. Simpson (1988), 38 C.C.C. (3d) 481 (S.C.C.) that the out-of-court statements of the accused “are receivable in evidence against him but not for him”. In his jury charge, the trial judge instructed the jury to disregard any reference to the appellant’s out-of-court statement as it had not been admitted in evidence.

[6] On appeal, the appellant submits that the statement should have been admitted under the principled exception to the hearsay rule as evidence of his state of mind at the time he caused his wife’s death. We are unable to accept that submission. If this argument was to be made, it should have been made at trial. In any event, assuming for the sake of argument that in the circumstances in which it was made, the statement met the threshold test for reliability, the necessity requirement is plainly not met. We do not agree with the submission that it should have been admitted on the basis that it was the best evidence, the quality of which cannot be replicated, of the appellant’s state of mind at the time he caused his wife’s death. The appellant was available to testify at his trial and to offer in full detail his version as to his mental state at the time he caused his wife’s death. He chose not to do so and not to subject himself to cross-examination. Even on the most generous application of the necessity requirement, we fail to see how this statement could be admitted.

(2) Did the trial judge err in his instruction to the jury regarding post-offence conduct?

[7] The trial Crown made only brief reference to the significance of appellant’s post-offence conduct. The appellant’s trial counsel, however, submitted that the appellant’s post-offence conduct was inconsistent with a planned and deliberate murder. The trial judge instructed the jury that post-offence conduct could in some cases indicate guilt but that in other cases there could be an innocent explanation for the conduct:

In this case…you might not find this evidence to be of much assistance as evidence of consciousness of guilt. That is because the accused has already admitted that he wrongfully killed his wife, and is therefore guilty of manslaughter. The extent that his behaviour looks like the behaviour of a guilty man, that could be explained as the actions of a man who knows he is guilty of having committed manslaughter. You might not find his behaviour of much assistance in determining whether he is guilty of first or second-degree murder. Once again is for you to decide.

[8] Later on his instructions, the trial judge outlined the defence theory with respect to the post-offence conduct. There was no objection to this aspect of the charge at trial.

[9] The appellant submits that the trial judge erred by failing to give a “no probative value” instruction: see R. v. White and Coté (1998), 125 C.C.C. (3d) 385 (S.C.C.). We disagree. As the Crown did not place any significant reliance on the post-offence conduct, it might have been preferable for the trial judge to have simply put the defence position to the jury. However, we cannot say that the manner in which he chose to instruct the jury on this issue caused any significant prejudice to the appellant. The instruction cautioned the jury about the danger of drawing an improper adverse inference from the post-offence conduct. A “no probative value” instruction could have undercut the appellant’s reliance on post-offence conduct as being exculpatory. In our view, on balance, the trial judge dealt with this issue fairly and we see no basis for appellate intervention.

Conclusion

[10] For these reasons the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“D. Lane J. (ad hoc)”