Her Majesty the Queen. v. Perlett [Indexed as: R. v. Perlett]

82 O.R. (3d) 89

Court of Appeal for Ontario,

Laskin, Gillese and MacFarland JJ.A.

September 5, 2006

Criminal law -- Appeal -- Fresh evidence on appeal -- Accused at trial not challenging admissibility of expert evidence called by Crown -- Accused arguing on appeal that defence counsel at trial committed judgmental error in not objecting to admissibility -- Accused seeking to adduce fresh evidence regarding the reliability of the Crown's expert evidence at trial in support of that argument -- Fresh evidence not admitted -- Evidence failing to meet due diligence criterion -- Evidence could not affect verdict even if admitted -- Application to adduce fresh evidence dismissed.

Criminal law -- Appeal -- Application of the curative proviso -- Trial judge making no serious errors in his charge to jury or in his rulings on admissibility of evidence -- Section 686(1)(b)(iii) of Criminal Code applying even if trial judge did make such errors -- No substantial wrong or miscarriage of justice occurring as evidence pointing to accused's guilt was so overwhelming that no other verdict possible -- No substantial wrong or miscarriage of justice -- Appeal from conviction for murder dismissed.

Criminal law -- Evidence -- Expert evidence -- Admissibility -- Necessity -- Accused being convicted of murdering his parents -- Accused giving inconsistent versions of his story that parents were murdered by intruder -- Defence seeking to call expert in human memory to testify that significant minority of population mistakenly believe people are better able to remember details of traumatic events -- Expert evidence not required in every case where statistically likely a juror may have misconceptions about human behaviour -- Not outside of experience of normal jurors experience to know that persons under great stress may have faulty memories and perceptions of traumatic event -- Trial judge properly refusing to qualify expert on basis that criterion of necessity was not met.

Criminal law -- Evidence -- Expert evidence -- Admissibility -- Accused not objecting at trial to admissibility of expert evidence called by Crown -- Accused arguing on appeal that evidence should not have been admitted as it was unreliable on the basis that it was without scientific foundation -- Accused seeking admission of fresh evidence on appeal in support of argument that trial evidence without foundation -- Accused arguing defence counsel at trial erring in failing to seek exclusion of Crown's expert evidence but not alleging incompetence -- Crown tendering fresh evidence supporting evidence at trial -- Fresh evidence proffered by defence on appeal could have been obtained through exercise of due diligence and possibility that evidence might have been excluded if admissibility contested at trial not establishing error or law or miscarriage of justice -- Argument for exclusion of evidence being virtually impossible to sustain when defence chose not to challenge admissibility at trial -- Trial judge giving jury adequate instructions on how to evaluate expert testimony and on [page90 ]underlying weaknesses in expert's opinion -- Accused's appeal from conviction for murder dismissed.

Criminal law -- Trial -- Charge to jury -- Motive -- Accused arguing absence of motive should have been put to jury -- Accused convicted of murdering his parents -- Accused having financial motive for murder but motive not strong and not constituting important part of Crown's case -- Accused arguing evidence that had good relationship with parents amounting to strong evidence of absence of motive and jury should have been instructed this evidence pointing to his innocence -- Trial judge not erring in choosing to instruct jury on motive -- Trial judge's instructions on motive neutral and fair -- Significance of evidence that accused on good terms with parents would have been obvious to jury and defence not objecting to charge to jury -- Appeal from conviction for murder dismissed.

Criminal law -- Trial -- Charge to jury -- Post-offence conduct -- Crown pointing to accused's demeanour after his parents' death as evidence of guilt -- Jury should not infer guilt from unusually calm or silent demeanour -- Trial judge should have instructed jury not to draw any inference from demeanour evidence -- Omission not constituting reversible error as demeanour evidence was not stressed by Crown and as trial judge did not instruct jury that they could draw inference from it.

Criminal law -- Trial -- Charge to jury -- Theory of defence -- Accused convicted of murdering parents -- Crown theory that accused having exclusive insider opportunity to commit murder -- Accused relying on presence of unidentified fingerprint and presence of empty beer bottles as evidence that an unknown intruder had been present and committed the offence -- Accused testifying that intruder wearing gloves when they struggled after murder -- No evidence who drank beer -- Trial judge not taking defence theory away from jury by instructing them not to speculate.

The accused was charged with the first-degree murder of his parents, with whom he lived. The theory of the Crown was that the accused went into his parents' bedroom in the middle of the night and shot them both with his father's target pistol as they lay sleeping. The accused testified in his own defence. He claimed that he encountered a masked intruder armed with a gun, struggled with the intruder, was shot in the abdomen and managed to get the gun away from the intruder, who ran from the house. The Crown contended that the accused had fabricated the story and shot himself to cover up the murders. The trial judge directed verdicts of acquittal on the first-degree murder charges. The accused was convicted on two counts of second- degree murder. He appealed.

Held, the appeal should be dismissed.

The Crown's case was overwhelming. Only an insider would have known where the gun and ammunition were stored and where the keys to obtain them were located. There was no indication of an attempted robbery, ransacking of the house, or random selection of the house to do violence. The conclusion that the murders were an inside job seemed inescapable. The accused was the only insider who had the opportunity to commit the murders. The physical evidence strongly pointed to his guilt. In addition to its inherent implausibility, numerous pieces of circumstantial evidence and the lack of any supporting evidence undermined the accused's story about an intruder. The accused repeatedly gave inconsistent accounts of what [page91 ]occurred, and made false statements reflecting an intent to mislead. The cumulative effect of these circumstances pointed inexorably to the accused's guilt.

The trial judge did not take the theory of the defence away from the jury by cautioning them not to speculate. The accused sought to rely on the presence of unidentified fingerprints on the gun locker from which the weapon had been taken as proof that an intruder had been present in the home. However, the accused testified that the intruder was wearing gloves and it seems highly speculative to suggest that the intruder removed his gloves when opening the gun locker then put them back on later, before the accused saw him. Any number of people could have touched the gun safe at some time. With respect to the fact that some empty bottles of beer were found in the Perlett home after the offence, it was unfortunate that the trial judge told the jury in one portion of the charge that they could not infer that an intruder had consumed the beer. However, in other parts of the charge, the trial judge didn't entirely preclude the jury from concluding that an intruder drank the beer. There was no evidence of who drank it; although the accused's blood alcohol level indicated that he had not. Even if the trial judge erred in his instructions regarding this aspect of the theory of the defence, the proposed inference was weak at best and no substantial wrong or miscarriage of justice resulted from the error. Finally, the accused sought to rely on the presence of a mixed sample of DNA found on his clothes of evidence of the intruder's presence. The evidence indicated that it was common to have such mixed samples and it could have been the result of an animated conversation with any other person. As the accused testified that the intruder was fully clothed and wearing a ski mask, it is difficult to see how the intruder's DNA could have gotten on the accused's clothing. The trial judge's charge on the distinction between legitimate inference and speculation, and the examples he used to illustrate the distinction, did not so undermine the defence that it deprived the accused of a fair trial.

The trial judge did not err in instructing the jury on motive. The accused had a motive to murder his parents, as he needed their help to move with his fiancée to Alberta and they refused to help him until he became more responsible. He knew that he stood to benefit financially from his parents' death. The evidence of motive was not strong, and motive was not an essential part of the Crown's case. Having decided to charge the jury on the evidence of motive, the trial judge did so in neutral terms. If anything, he devalued the evidence. His charge on motive was fair.

The trial judge instructed the jury that to use the accused's post-offence statements as circumstantial evidence pointing to guilt, they had to find that he made the statements, that the statements were false or concocted and that they were intended to mislead. He expressly cautioned the jury that they need not find the statements false in the ways that the Crown had alleged. He urged to jury to consider the circumstances in which the statements were made, that the statements were not recorded and whether the witnesses were recalling what the accused said or rather what they understood him to have said. He also directed the jury to consider other reasonable explanations. His charge on that aspect of the accused's post- offence conduct was balanced. Inconsistencies in a witness' account will be relevant to credibility, but only material or compelling inconsistencies are capable of giving rise to an inference of fabrication. Ideally, the trial judge should have told the jury that they could infer fabrication from the inconsistencies only if they were satisfied that the inconsistencies were compelling. However, this further instruction would probably not have benefited the accused. As a second branch of post-offence conduct, the Crown pointed out that the accused failed to call out to his parents after they were shot and that he failed to call up to ask if they were all right or if they had been shot. The Crown argued that the accused's lack of interest [page92 ]in his parents was not a normal human reaction, and that his silence showed that he knew his parents were dead because he had killed them. The trial judge should have instructed the jury not to draw any inference from this demeanour evidence, or at least instructed them to exercise caution in relying on it. Consciousness of guilt should not be inferred from an accused's silence or unusually calm reaction. However, the trial judge's failure to give the instruction did not amount to serious error and did not deprive the accused of a fair trial. The Crown did not emphasize the demeanour evidence, and the trial judge did not instruct the jury that they could draw any inference from the evidence. He simply outlined the Crown's position, and did so in very general terms. If the omission was an error, it was not a reversible one.

The Crown did not invite the jury to reverse the burden of proof when it asked the accused in his cross-examination who else could have shot his parents, and then called on the jury in his closing address to ask themselves who other than the accused could have committed the murders. The Crown's cross- examination and closing had to be viewed in the context of the defence's intruder theory. The Crown had to prove the intruder theory false. Thus, whether anyone else had a motive to kill the victims was central to the Crown's case. Further, the Crown built its case on exclusive insider opportunity. It was logical for the Crown to point out that the accused was the only person with knowledge of the house and the location of the murder weapon who had the opportunity to commit the murders. Finally, in addition to giving the jury the standard charge on reasonable doubt and twice instructing them on the principles in R. v. W. (D.), the trial judge expressly cautioned the jury that even though the accused testified, he had no onus or duty to prove anything.

The defence sought to call L, a recognized expert in the field of human memory, as an expert witness for two purposes: to establish that a significant minority of the population mistakenly believe people are better able to remember details of traumatic events; and to establish that a witness to a traumatic event may have false memories of that event. By tendering L's opinion evidence, the defence sought to counter the Crown's argument that the accused's false statements and inconsistent accounts of what occurred showed he had fabricated the intruder story. The trial judge did not err in refusing to permit the defence to call L on the basis that the criterion of necessity was not met. He correctly stated the test for necessity: for expert evidence to be admissible, the subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge. The trial judge stated that he was not convinced that it was necessary to have expert opinion evidence every time it is statistically likely that a juror will have a relevant misconception about human behaviour. Two things supported the trial judge's ruling: L's evidence about the extent of the population harbouring the misconception in question was quite vague; and the ruling was consistent with Ontario case law holding that jurors are likely to understand that people have faulty perceptions and memories of brief and stressful events, so that expert evidence is not necessary. The trial judge could have assisted the jury by reminding them that persons may have faulty memories and misperceptions of traumatic incidents, and by relating that to the inconsistencies in the accused's various accounts of his struggle with the intruder, but the failure to do so did not amount to legal error.

The Crown led expert evidence from P, a forensic pathologist, who gave an opinion about the amount of time that must have elapsed from when the victims were shot until the police arrived, based on the amount of blood the deceased lost and on changes in the colour and consistency of their blood. The accused argued on appeal [page93 ]that defence counsel at trial made an error in judgment by failing to challenge the admissibility of P's testimony on the basis that it was unreliable and had no scientific foundation, and sought to introduce fresh evidence consisting of an agreed statement of facts which explained defence counsel's strategy in dealing with P's evidence and the affidavit and testimony of a forensic pathologist which cast doubt on P's opinion. The proposed fresh evidence was not admitted as it failed to meet the due diligence criterion. It was unquestionably available at trial by the exercise of due diligence. The reassessment in hindsight of a tactical decision made at trial provides an unsatisfactory explanation for the failure to exercise due diligence. Moreover, even if admitted, the proposed fresh evidence could not reasonably be expected to have affected the verdict. The argument for excluding P's testimony was difficult, if not virtually impossible, to sustain when the defence chose not to challenge the admissibility of that testimony at trial. An appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice. The trial judge adequately charged the jury on the weaknesses in P's opinion evidence. As the opinion suffered from underlying factual weaknesses, the trial judge might well have cautioned the jury that an expert's opinion merits weight only if the underlying facts on which it is based are proven. He did not do so in the general terms urged by the accused, but he did specifically instruct the jury on the underlying weaknesses in P's opinion.

Even if the trial judge did in fact make serious errors in his charge to the jury or in his ruling on the admissibility of expert evidence, the proviso, s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, applied. There was no substantial wrong or miscarriage of justice as the evidence pointing to the guilt of the accused was so overwhelming that any other verdict but a conviction would be impossible.

APPEAL from a conviction for second degree murder entered on February 20, 1999 and from a sentence imposed on March 29, 1999 by Platana J. of the Superior Court of Justice, sitting with a jury.

Cases referred to R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, apld R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199, 79 C.R.R. (2d) 83, 151 C.C.C. (3d) 545, 39 C.R. (5th) 291, 12 M.V.R. (4th) 169 (C.A.); R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 130 C.C.C. (3d) 353, 21 C.R. (5th) 324 (C.A.); R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97, [1997] O.J. No. 3172, 117 C.C.C. (3d) 385 (C.A.), consd Other cases referred to R. v. Belowitz, 1990 11004 (ON CA), [1990] O.J. No. 734, 56 C.C.C. (3d) 402 (C.A.); R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244, 19 C.R. (6th) 109 (C.A.); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 160 C.C.C. (3d) 1, 160 Man. R. (2d) 161, 207 D.L.R. (4th) 289, 279 N.R. 79, 262 W.A.C. 161, [2002] 3 W.W.R. 1, 47 C.R. (5th) 348, 2001 SCC 86; R. v. Levert, 2001 8606 (ON CA), [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.); R. v. M. (P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (C.A.); R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1; R. v. Perlett, 1999 36529 (ON SC), [1999] O.J. No. 2195, 26 C.R. (5th) 343 (Gen. Div.); R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, 90 Nfld. & P.E.I.R. 234, 122 N.R. 321, 64 C.C.C. (3d) 193, 5 C.R. (4th) 351; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 100 C.C.C. (3d) 225, 42 C.R. (4th) 26 (C.A.); R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, 5 O.A.C. 241, 12 D.L.R. (4th) 641, 55 N.R. 27, 14 C.C.C. (3d) 321 [page94 ] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b) [as am.]

Jamie C. Klukach, for Crown. Marlys Edwardh, Frank Addario and Breese Davies, for James Daniel Perlett.

The judgment of the court was delivered by

LASKIN J.A.: --

A. Overview

1The appellant Jamie Perlett was convicted of murdering his parents, James and Carole Perlett, on March 22, 1996. The Crown alleged that he went into his parents' bedroom in the middle of the night, and using his father's target pistol, shot them both at close range as they lay sleeping. The Crown adduced an overwhelming body of circumstantial evidence pointing to the appellant's guilt.

2The appellant testified in his own defence. He claimed that he had fallen asleep watching television in the basement of the family home. He awoke to the sound of gunshots and went upstairs where he encountered a masked intruder armed with a gun. He grabbed for the gun. As he did so, he was shot in the abdomen. He still managed to pry the gun away from the intruder, who then ran from the house. The Crown contended that the appellant had fabricated the story about the intruder. Instead, he had shot himself to cover up the murders of his parents.

3The appellant was charged with two counts of first-degree murder. However, at the end of the Crown's case, the trial judge directed verdicts of acquittal on the first-degree murder charges. The trial continued on the lesser and included offence of second-degree murder. The entire trial took three months. After deliberating for six days, the jury found the appellant guilty on both counts. The trial judge sentenced him to life imprisonment, without eligibility for parole for 18 years.

4The appellant appeals his convictions and asks for a new trial. The Crown appeals the directed verdicts of acquittal, but seeks a new trial on first-degree murder only if the appellant succeeds on his appeal. [page95 ]

5The appellant raises six grounds of appeal against his convictions. He submits that the trial judge erred:

(1) In taking away the theory of the defence by telling the jury large parts of it were based on speculation.

(2) In instructing the jury on motive, both by leaving certain evidence relied on by the Crown as evidence of motive, and by failing to relate the evidence of absence of motive to the theory of the defence.

(3) In instructing the jury on post-offence conduct and in leaving to the jury demeanour evidence as post-offence conduct capable of supporting an inference of guilt.

(4) In failing to correct Crown counsel's invitation to the jury to shift the burden of proof.

(5) In excluding the evidence of Dr. Loftus, an expert on memory, or in failing to instruct the jury on the frailties of memories formed in traumatic situations.

(6) In admitting the opinion evidence of the Crown's expert forensic pathologist, Dr. Pan, because it was unreliable and unscientific. In connection with this ground of appeal, the appellant seeks leave to introduce fresh evidence challenging the reliability of Dr. Pan's opinion.

6Although I undoubtedly do a disservice to the thorough and skilful arguments put forward by the appellant's counsel, I propose to canvass the grounds of appeal relatively briefly. I propose to do so because, in my view, the evidence of the appellant's guilt is so overwhelming that any verdict other than a conviction could not be rationally supported.

7Even if the appellant can show that the trial judge committed a serious error -- and I do not think that he did -- I would uphold the convictions by applying the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Only the fourth ground of appeal pertaining to the burden of proof is not amenable to the proviso and I see no merit in that ground. I agree with the Crown that the alleged errors of the trial judge do not cast doubt on the fairness of the trial, or on the reliability of the verdicts.

B. The Crown's Overwhelming Case

8Before dealing with the appellant's grounds for appeal, I propose to deal with the Crown's case, which I consider overwhelming. [page96 ]

9That the appellant murdered his parents seems inexplicable, impossible to fathom. One strains to find otherwise.

10At the time of the murders, the appellant seemed to be a normal 19-year-old, living at home with his mother, his father and his sister on a quiet residential street in Fort Frances, Ontario. He had no record of criminality; he had no evidence of a mental disorder; and by all accounts, he had no animosity toward either of his parents. Indeed, to the contrary, the Perletts appeared to be a close-knit family.

11Yes, there were frictions. The appellant depended financially on his parents, and knew that his mother had recently inherited a sizeable sum of money. The appellant wanted to move to Red Deer, Alberta with his fiancée, to go to school there. However, his parents were reluctant to assist him unless he showed a greater sense of ambition and responsibility. Evidence was led that the appellant was possessive of his fiancée, that Mrs. Perlett had tried to interfere in their relationship and that he and his fiancée had had a disagreement or at least some tension between them the evening before the murders.

12None of these frictions seems severe enough to have precipitated the appellant's actions. And yet the Crown's web of circumstantial evidence shows that the appellant must have committed these murders. I will review this evidence, and as did the Crown both at trial and on appeal, will separate it into five categories:

-- evidence that the murders were an "inside job";

-- evidence that the appellant was the only "insider" who had the opportunity to commit the murders;

-- physical evidence that strongly pointed to the appellant's guilt;

-- evidence that undermined the appellant's story about an intruder; and

-- evidence showing that the appellant repeatedly gave inconsistent accounts of what occurred and made false statements in order to mislead the police.

1. Evidence that the murders were an "inside job"

13The appellant's parents were killed with a high standard semi-automatic target gun owned by Mr. Perlett. The murderer had to know where both the gun and ammunition were stored and where the keys to obtain each were located. Only an "insider" would have had this knowledge. [page97 ]

14The murder weapon was stored in a locked gun locker inside of the garage along with several other firearms. Nothing about the appearance of the locker would give an outsider to the Perlett household any idea that guns were stored inside it.

15To obtain the gun from the locker required two keys: a key to open the locker and a key to release the trigger lock, which further secured the murder weapon. There were many keys to the trigger lock, but only one key to the gun locker. That key was on James Perlett's key ring. The appellant and his sister knew this. They also knew that their father kept his key ring in one of three places: his jacket pocket, a key rack behind the door or an ashtray. After the murders, the key ring was found in the pocket of James Perlett's jacket, which was hanging on the back of a chair in the dining room. The keys to the gun locker and trigger lock were missing. Several weeks after the murders, when the snow had thawed, a neighbour found these keys in his backyard.

16In addition to Mr. Perlett's key ring, there were many other sets of keys in the house. None of the keys, including those on Mr. Perlett's key ring, was labelled.

17Mr. Perlett stored his ammunition for his guns in a filing cabinet in the garage. It was not apparent from looking at the cabinet that ammunition was stored there. The key to the filing cabinet was also on Mr. Perlett's key ring. In the filing cabinet were two boxes of the type of ammunition used in the murder weapon. Both boxes were full; each contained 50 bullets.

18A partially used box of this type of ammunition was found in the pantry in the basement, in a box of hunting gear. It contained 40 unused bullets. Ten bullets were accounted for as follows: four bullets were used to kill the Perletts; one bullet injured the appellant; three bullets were fired by the appellant, on his account, at the fleeing intruder; and two bullets remained in the gun.

19That an insider committed the murders was evidenced not just by the knowledge required to obtain the gun and ammunition, but also by the entire absence of any evidence of a home invasion.

20There was no evidence of a forced entry into the house, the garage, the gun locker or the filing cabinet. There was no indication that the gun locker or the filing cabinet had been searched. Although the gun locker contained several firearms, the killer went directly to the high standard gun, which was the only semi-automatic weapon. The gun itself was found in the hallway. The appellant's blood alone was on it.

21There was no indication of an attempted robbery, ransacking of the house or random selection of the Perlett home to do violence. At the time of the murders, four cars were parked [page98 ]outside the house. When the police arrived, the house was mostly in darkness, yet there was no evidence of any disturbance that might have been caused by a person unfamiliar with the house searching about in poor lighting. Nothing had been stolen.

22On all this evidence, the conclusion that the murders were an inside job seems inescapable.

2. Evidence that the appellant was the only "insider" who had the opportunity to commit the murders

23The appellant was home alone with his parents the night of the murders. He was the only insider who could have committed these murders.

24His sister Kelly and her boyfriend slept at his parents' farm that evening. The appellant's fiancée was at home with her mother. The appellant's uncle had a key to the garage and knew how to use guns, but he was at home in bed with his wife when the murders took place.

25Bradley Holmes, Carole Perlett's brother, was targeted as a suspect by the defence. He was a substance abuser and had a criminal record, but not for offences of violence. He had never threatened any member of the Perlett family. He did not match the appellant's description of the "intruder". He had been hospitalized recently for alcoholism. Most important, on the night of the murders he was staying at a motel.

26Again, the conclusion that the appellant was the only insider with the opportunity to commit these murders seems inescapable.

3. Physical evidence strongly pointing to the appellant's guilt

27Two items of physical evidence implicated the appellant in the murders: shoe print evidence and the partially used box of ammunition in the basement pantry.

(i) Shoe print evidence

28Two expert witnesses testified that shoe impressions left on papers in front of the filing cabinet in the garage, where the ammunition was stored, matched the appellant's Nike running shoes. The shoes were well worn and had distinct wear patterns.

29The shoe imprints were made in dust on papers that had fallen to the floor. The papers were not on the floor earlier in the afternoon. Witnesses familiar with Jim Perlett's habits testified that he kept the garage neat and that he almost certainly would not have left a pile of paper on the floor. [page99 ]

30The appellant had first told the police that he was wearing his Nike running shoes the night of the murders. The day after the shootings, however, he asked the police whether they could get impressions from footwear in the same way as they could from fingerprints and footprints. The next day he told his sister to "correct" the information he had first told the police and instead tell them that he was wearing a new pair of shoes his mother had bought for him.

31Neither the appellant's sister nor his fiancée ever saw him wearing his new shoes. The appellant's closest friend, who was out with him the night of the murders, testified that the appellant was wearing his Nike running shoes. The appellant wore these shoes so often that their battered condition was an ongoing joke with his friends.

(ii) The partially used box of ammunition in the basement pantry

32The appellant testified that he was in the basement when he awoke to the sound of gunshots. On his account, the intruder never came into the basement. Yet a partially used box of ammunition (of the type used in the murder weapon) was found in the basement pantry. No other partial or empty boxes of this type of ammunition were found anywhere else at the scene. The number of shells left in the box (40) and the number used in committing the murders (ten) added up to a full box of 50. [See Note 1 below] The box of shells was found in a container of hunting gear. Items surrounding the box were dusty; but the box itself was free of dust, suggesting it had been placed there recently.

33These two pieces of physical evidence -- the shoe prints and the partially used box of ammunition -- pointed strongly to the appellant's guilt.

4. Evidence that undermined the appellant's story about an intruder

34In addition to its inherent implausibility, numerous pieces of circumstantial evidence and the lack of any supporting evidence undermine the appellant's story about an intruder. The following are some of the evidentiary considerations contradicting the appellant's account. [page100]

35First, there was no physical evidence supporting the appellant's claim that he struggled with the intruder. Nothing in the house was destroyed, damaged or even disturbed.

36Second, although the appellant claimed that he shook his parents after he was shot, there was no blood on his parents' bed covers.

37Third, the blood evidence did not square with the timing of the appellant's account. The appellant called the 911 operator at 5:11 a.m. He testified that just a couple of minutes had elapsed from the time he heard the shots until he made the call. The blood evidence showed otherwise. The police constable arrived at the scene at 5:16 a.m. and viewed the deceased by 5:20 a.m. Both he and another constable observed that the blood on Jim Perlett's face was dried and crusted. It was no longer flowing and it was dark. The forensic pathologist, Dr. Pan, testified that the blood that the constables observed on Jim Perlett's face likely would have been there for 20 to 30 minutes.

38Also, a large amount of the appellant's blood was found on the floor of his parents' bedroom and in the kitchen. In Dr. Pan's opinion it would take 15 minutes or more for that amount of blood to flow from the appellant's wound.

39Fourth, the appellant claimed that he turned the light on in his parents' bedroom after he was shot. Yet, there was no blood on the light switch, though a good deal of blood from the appellant's wound was found on the floor of his parents' bedroom. Moreover, when the appellant turned the kitchen light on as the police arrived, he did leave blood on that light switch.

40Fifth, the Perletts' two dogs would have likely have reacted to the presence of an intruder. Yet, they were silent.

41Sixth, the partially used box of ammunition was found in the basement of the house. The appellant, however, testified that the intruder never went down to the basement.

42Seventh, the gun locker contained several pistols. There was no evidence that the locker had been searched. Yet, the killer took the one pistol that could be used as a semi- automatic weapon.

5. Evidence showing that the appellant repeatedly gave inconsistent accounts of what occurred and made false statements in order to mislead the police

43The appellant told his story many times, first to the 911 operator, then to the police, and then to friends. Throughout his various accounts he maintained that he was shot by an intruder. But his account of the surrounding details varied considerably. These variations included the following: [page101]

-- How he got the gun: first he said that he grabbed it from the intruder; in a later account he said that the intruder dropped it;

-- Whether there was one intruder or more than one;

-- The kind of weapon that he was shot with; and

-- Where in the house he was shot: in some accounts he said that he was shot on the main floor landing; in other accounts he said that he was shot as he climbed the stairs to the second floor.

44The appellant also made false statements reflecting an intent to mislead, and "planted" exculpatory suggestions intended to be given to the police. A few of the more cogent statements and suggestions were to the following:

-- While he was in the hospital, the appellant told a friend that he had lost his keys, including his key to the gun locker. He said that he had gone to the Fort Frances General Supply Store to get duplicates made, left keys there, and never picked them up. The Crown called the owner and three employees from the store to establish that the appellant's statement to his friend was false.

-- Knowing that his sister was going to be interviewed by the police, the appellant told her to tell them that he was wearing his new shoes when he went out on the night of the murders. As I have already noted, all the evidence, including the appellant's initial statement to the police, established that he was wearing his old Nike running shoes the night of the murders. Prints from these shoes at the foot of the filing cabinet where the ammunition for the murder weapon was stored strongly implicated the appellant in the shootings.

-- While he was in the hospital the appellant told his sister Kelly Perlett that a few days before the murders their father had commented about some keys missing from his key ring. Kelly did not recollect her father saying anything about missing keys.

45The cumulative effect of these five planks of the Crown's case -- especially, in my view, the first three planks -- points inexorably to the appellant's guilt. Nonetheless, it is still necessary to assess whether any of the appellant's grounds of appeal [page102] calls into question the reliability of the verdicts or the fairness of the appellant's trial.

C. The Grounds of Appeal

1. The trial judge took away the theory of the defence

46The defence's theory was that a masked intruder shot Mr. and Mrs. Perlett. The defence argued that the trial judge's charge took away this theory. The argument has two branches. One branch concerns three specific pieces of evidence that the defence contended supported its intruder theory: missing beer in the refrigerator; unidentified fingerprints on the gun locker; and unidentified DNA on the appellant's sweatshirt. The appellant submits that the trial judge devalued this evidence supporting the defence by cautioning the jury not to speculate about it.

47The second branch of the argument concerns the defence's contention that the police's investigation was marred by tunnel vision. The defence argued that from the beginning the police tried to build a case against the appellant and ignored other possibilities. The appellant submits that the trial judge failed to instruct the jury how to relate the absence of evidence arising from gaps in the Crown's case to the burden of proof. I will deal with each branch of this argument.

(a) Inference and speculation

48I am not convinced that the trial judge took away the defence theory by cautioning the jury not to speculate. In his closing argument, defence counsel invited the jury to find that several pieces of evidence -- the missing beer, the unidentified prints and the unidentified DNA among them -- established "positive proof of innocence" or showed "the stamp of the killer". Perhaps because of the way the defence, and indeed the Crown, put their closing arguments, early in his charge the trial judge instructed the jury, properly in my view, on the distinction between inference and speculation. He did so in part to warn the jury not to convict the appellant on guess work:

I should also caution you that an inference is a much stronger kind of determination than conjecture or speculation. If there are no proven facts from which an inference can be logically drawn, it is impossible to draw an inference; at best you would be speculating or guessing -- and that is not good enough. No accused person, and certainly Mr. Jamie Perlett before you in this case, should ever be convicted on a guess, no matter how shrewd that guess might be.

49The trial judge also gave specific examples of inferences both the Crown and the defence had asked the jury to draw, [page103] which he suggested were not supported by the evidence. These general instructions were balanced.

50However, two of the examples used by the trial judge dealt with two of the pieces of evidence the defence relied on to support the appellants' account of an intruder: the missing beer and the unidentified fingerprints.

(i) The missing beer

51Jim Perlett had put a new case of beer in a refrigerator in the garage the morning before the murders occurred. After the murders, several bottles in the case were empty. The appellant may have had one beer, but a testing of his blood showed no excess alcohol. No evidence was led to suggest that anyone else had drunk this beer. The defence argued to the jury that they were entitled to infer the intruder drank the beer. The trial judge, however, suggested that this argument was speculative:

Mr. Brodsky, in his closing, asked you to consider that the intruder may have consumed the beer that was apparently missing in the garage. The only facts you have are that a full box was placed in the garage on Thursday morning and that when it was checked following the killings, the box was partially empty. You cannot infer from that any particular individual who may have drank the beer.

52This instruction is literally correct but the example is, perhaps, unfortunate. I think the jury was entitled to infer that an intruder drank the missing beer. The trial judge did not entirely preclude the jury from drawing this inference. When reviewing for the jury the many pieces of evidence the defence relied on as "positive evidence of innocence", the trial judge included "that someone disposed of up to twelve beers and returned the empty bottles to its case".

53Still, an instruction from the trial judge ordinarily carries more weight with the jury than does a review of the defence's position. See for example, R. v. Belowitz, 1990 11004 (ON CA), [1990] O.J. No. 734, 56 C.C.C. (3d) 402 (C.A.). Therefore, although by the end of the charge, the inference from the missing beer sought by the defence was left for the jury to consider, they might have been discouraged from doing so by the trial judge's earlier instruction not to speculate. However, I consider the inference very weak at best. If the trial judge's charge on the missing beer amounted to a legal error, it was not a serious error. I would apply the proviso to it.

(ii) Unidentified fingerprints

54The police found fingerprints on the gun locker that they could not identify. They ruled out family and known friends of the [page104] Perletts. The defence claimed that the fingerprints were those of the intruder. Early in his charge, however, the trial judge told the jury, ". . . you have evidence about an unidentified fingerprint on the gun vault. The evidence is just that and no more. It is an unidentified print. And you must not speculate in any way as to who that print may belong to."

55The appellant complains that this instruction eliminated from the jury's consideration a legitimate inference available to them. However, especially in the light of the appellant's evidence about the intruder, I think that the trial judge was correct to caution the jury as he did. The appellant testified that the intruder was wearing gloves to conceal his identity. As Crown counsel pointed out, it seems highly speculative, if not silly, to think that the intruder would have removed his gloves before touching the gun cabinet. The reality is that any number of persons could have touched that cabinet and left a fingerprint.

56Nonetheless, despite his initial caution to the jury, later in his charge the trial judge listed "the presence of an unidentified fingerprint on a restricted access locker where the murder weapon was stored before the killings" as one of the pieces of evidence the defence relied on to support its intruder theory.

(iii) Unidentified DNA

57A small sample of unidentified DNA mixed in with the appellant's blood was found on the sweatshirt the appellant wore the night of the murders. The defence contended that this DNA may have come from the intruder. The appellant submits that the trial judge also incorrectly took this inference away from the jury. I disagree.

58The trial judge made no mention of the unidentified DNA except for listing it as another piece of evidence on which the defence relied. Moreover, I cannot see that the inference the defence sought to draw is at all reasonable. The head of biology at the Centre of Forensic Sciences testified that a mixed DNA sample is "very common" and could result even from "talking in an animated fashion". Moreover, I find it hard to fathom how the appellant's submission squares with his own description of the intruder as fully clothed, gloved and wearing a ski mask over his face.

59Overall, I am not persuaded that the trial judge's charge on the distinction between legitimate inference and speculation or the examples he used to illustrate the distinction so undermined the defence that it deprived the appellant of a fair trial. [page105]

(b) Tunnel vision

60The appellant argued that because of the police's tunnel vision and resulting failure to properly investigate the crime, there were gaps in the Crown's case against him. For example, the empty beer bottles in the garage refrigerator were not tested for fingerprints or DNA, and the employees from the store where the gun locker was bought were not called to possibly shed light on the unidentified fingerprints. The appellant submits that the trial judge failed to properly instruct the jury on how these gaps in the Crown's case -- the absence of evidence -- could give rise to a reasonable doubt. I do not accept this submission.

61In R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199, 151 C.C.C. (3d) 545 (C.A.), at pp. 563-64 C.C.C., this court said that although a jury was not entitled to speculate, it was entitled to consider whether the Crown's failure to investigate or preserve evidence raised a reasonable doubt. In Bero, however, the trial judge removed from the jury's consideration whether the absence of evidence could raise a reasonable doubt. In contrast, in this case the trial judge correctly instructed the jury that a reasonable doubt could arise from the absence of evidence. And, although the trial judge properly told the jury not to speculate why certain witnesses were not called, he did not instruct them to ignore any gaps in the Crown's case. He referred expressly to what the defence characterized as a "misguided police investigation" and to the alleged police failures suggesting that characterization. Perhaps the trial judge could have done more to relate the defence position to the burden of proof, but in my view this aspect of his charge was certainly adequate.

62Moreover, I was not persuaded of any obvious or glaring deficiencies in the police investigation. Criticism in hindsight is always easy. But, for example, blaming the prosecution for failing to call the employees of the store where the gun locker was purchased seems to me to be a counsel of perfection, if not of excess. Blaming the police for failing to test the empty beer bottles for fingerprints or DNA might have been a cogent criticism were the Crown's case based on the appellant's exclusive opportunity. However, the Crown's case was based not on exclusive opportunity, but on insider exclusive opportunity, which is quite different. Overall I am not satisfied that the defence's case was unfairly removed from the jury's consideration.

2. The trial judge erred in instructing the jury on motive

63The trial judge told the jury that they may consider whether the appellant had a financial motive to murder his parents. The [page106] appellant contends that in doing so the trial judge erred in two respects. First, he submits that the trial judge should not have left with the jury the question whether the appellant had a motive for murder because the appellant's dependence on his parents was consistent with a normal family relationship. Second, he submits that the trial judge erred by failing to relate the evidence of the appellant's normal family relationship to the absence of motive. I do not agree with either submission.

64On the first submission, motive was not an essential part of the Crown's case. And the appellant was not in dire financial straits. But he had often borrowed money from his mother. Moreover, because of his financial situation, he needed his parents' help to move with his fiancée to Alberta, and his parents had withheld their support. The appellant knew, as well, that he stood to benefit financially from his parents' death, as his mother had inherited some money. Thus there was evidence of motive, though I accept that the evidence was not strong. Nonetheless, as the evidence existed, the trial judge had the discretion to leave it for the jury to consider whether they viewed it as evidence of motive, and if so, what weight to give it.

65Having decided to charge the jury on the evidence of motive, the trial judge did so in neutral terms. If anything, he devalued the evidence by his following instructions:

-- The appellant's request to borrow money from his uncle after his parents' death was insignificant;

-- The suggestion that the appellant resented his parents was speculative;

-- There was no evidence to contradict the appellant's testimony that he was making the loan payments on one of his cars;

-- There was no evidence to show that the appellant did not buy insurance on any of the three cars he owned because he could not afford to do so; and

-- Although the appellant knew of his mother's inheritance, he did not know the specific amount.

In my view, the trial judge's charge on motive was fair.

66On the second submission, the trial judge expressly instructed the jury that ". . . if you are of the view there is no motive established, or you have a reasonable doubt concerning the presence of motive, that is a circumstance which you might take into account as supportive of innocence". In another part of [page107] his charge the trial judge also told the jury that the appellant had a typical or normal family relationship with his parents.

67The appellant's complaint, however, is that the trial judge failed to put those instructions together -- in other words, he failed to put his instructions on the Perletts' normal family relationship in a proper context. The appellant says that the trial judge should have told the jury that the evidence of a normal family relationship was a strong piece of circumstantial evidence from which the jury could infer an absence of motive. From the absence of motive, the jury could also infer that the appellant was unlikely to have committed the murders.

68Although the trial judge did not expressly connect the Perlett family relationship to the question of motive, I think that the connection would have been obvious to the jury. The trial judge told the jury at some length about the "normal" relationship between the appellant and his family:

One of the other circumstances, aspects of circumstantial evidence, which you may take into account is the relationship between Jamie and his family. You have heard that in all respects the Perlett family seemed to be what we would certainly call normal. Kelly described nothing unusual in terms of the relationships of her family. And her evidence, I would suggest, shows nothing other than a typical family relationship between parents and teenagers. Kelly said that her relationship with Jamie was good and she did not see anything out of the ordinary in the relationship between Jamie and her parents.

69In this part of his charge the trial judge did not say that the Perletts normal family relationship was evidence of absence of motive. But we must credit the jury with some common sense. Any reasonable juror would have questioned why a teenager in a typical relationship with his parents would murder them.

70The adequacy of the trial judge's instructions on motive is supported by defence counsel's position at trial. In the pre-charge conference, defence counsel requested two instructions: that there was no evidence the appellant resented his parents for requiring him to prove himself before assisting him financially with his schooling; and that an inference of absence of motive was available on the evidence. The trial judge satisfied both these requests. Not surprisingly, defence counsel did not object to the trial judge's charge on motive. I would not give effect to this ground of appeal.

3. The trial judge erred in instructing the jury on post- offence conduct and in leaving to the jury demeanour evidence as post-offence conduct capable of supporting an inference of guilt

71The third ground of appeal is that the trial judge erred in his instructions on the appellant's post-offence conduct. This [page108] ground of appeal has two branches: the trial judge did not give the jury enough guidance on how to assess whether the appellant's inconsistent accounts and allegedly false statements could be used as circumstantial evidence of guilt; and the trial judge failed to instruct the jury that it should not use the appellant's demeanour after the shootings to infer guilt. I will deal separately with the two branches.

(i) The appellant's post-offence statement

72To assess whether the trial judge sufficiently assisted the jury to evaluate the appellant's post-offence statements I will briefly summarize what the trial judge did tell them.

73The trial judge began by telling the jury that to use the appellant's post-offence statements as circumstantial evidence pointing to guilt, they had to find that the appellant made the statements, that the statements were false or concocted, and that they were intended to mislead. The appellant does not complain about these instructions.

74The trial judge then left two categories of the appellant's post-offence statements for the jury to consider: the inconsistencies in his accounts of what occurred; and his allegedly false statements and exculpatory suggestions. I have referred to both categories earlier in these reasons in reviewing the Crown's case.

75The trial judge told the jury that he was not going to review all of the inconsistencies because they had been reviewed by counsel in their closing addresses. He did, however, specifically remind the jury of the appellant's allegedly false statements: his statement to his friend about taking keys to the supply store for duplicating, his statement to his sister about his shoes and his statement to his sister about his father's missing keys.

76Importantly, the trial judge also expressly cautioned the jury that they need not find the statements false in the ways that the Crown had alleged. He urged the jury to consider the circumstances in which the appellant made the statements, that the statements were not recorded, and whether the witnesses were recalling what the appellant said or rather what they understood him to have said.

77The trial judge also directed the jury to consider other reasonable explanations: "I caution you not to jump too fast in coming to a conclusion that just because a false statement was made, that it was necessarily made to conceal guilt or divert suspicion. You must consider whether there are any other reasonable explanations." [page109]

78It seems to me that the trial judge's charge on post- offence conduct was balanced and gave the jury considerable guidance on how to assess the appellant's statements. The appellant, however, contends that the trial judge needed to go farther than he did in two ways. First, he should have told the jury that they were entitled to infer fabrication from the giving of inconsistent statements only if the inconsistencies were material or compelling. Second, he should have told the jury that the appellant did not admit to making two of the false statements the Crown attributed to him.

79Inconsistencies in a witness' account will be relevant to credibility. However, only material or compelling inconsistencies are capable of giving rise to an inference of fabrication. See R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244 (C.A.), at para. 115. This limitation helps ensure that a jury does not automatically equate disbelief of an accused's statement with an accused's guilt.

80The trial judge did list several areas of inconsistency in the appellant's account: where the appellant was standing when he met the intruder, how he got the gun, when he went upstairs, what shoes he was wearing and the timing of his 911 call. Ideally, the trial judge should also have told the jury that they could infer fabrication from these inconsistencies only if they were satisfied that the inconsistencies were compelling. However, I doubt that this further instruction would have benefited the appellant. If he gave the requested instructions, he likely would have also have told the jury that if they found the inconsistencies compelling they could infer the appellant could not keep his story straight because that story was false. This was a cogent argument for the Crown.

81Although the appellant did not admit making a statement to his friend about getting duplicate keys or a statement to his sister about his father's missing keys, he did not deny making these statements. He simply claimed that he could not remember making them. The trial judge put the appellant's position a little differently: "Jamie's own evidence was that he acknowledged that he didn't say that anybody was lying." I do not think that much turns on this difference. By far the most important of the appellant's statements was his direction to his sister to inform the police that he was wearing his new shoes, not his old Nike running shoes, the night of the murders. That statement the appellant did acknowledge making. I would not give effect to this branch of the appellant's argument on post-offence conduct.

(ii) Demeanour evidence

82The second branch of this ground of appeal concerns what the defence characterizes as demeanour evidence. In his closing [page110] argument, the Crown pointed out that the appellant failed to call out to his parents after he was shot, and that he failed to call up to ask if they were all right or if they had been shot. The Crown argued that the appellant's lack of interest in his parents was not a normal human reaction. In effect, the appellant's silence showed that he knew his parents were already dead because he had killed them. In his charge the trial judge reviewed the Crown's position by telling the jury "he [the Crown] asks you to review areas where Jamie Perlett simply has no explanation to offer you for his actions or inactions". The trial judge did not otherwise instruct the jury on the appellant's failure to call out for or ask about his parents.

83The appellant contends that the Crown's argument invited the jury to rely on evidence of demeanour, which courts now consider an unreliable indicator of guilt. The appellant submits that the trial judge was obliged to instruct the jury not to draw any inference from this evidence, or at least to instruct them to exercise caution in relying on it. I agree that the trial judge should have done so. However, I do not consider his failure to do so to be a serious error or that it deprived the appellant of a fair trial.

84The Crown's opposing argument is that the appellant's failure to call out to his parents goes well beyond the classic "demeanour" evidence that can too often be misinterpreted. The Crown relied on the context, which it says [is] significant. The appellant showed a lack of concern for his parents before their deaths were confirmed. Yet, on his evidence he cared a lot for his mother and his father. Thus his failure to call out to them after supposedly hearing shots upstairs -- for which he had no answer -- had considerable probative value. In the Crown's submission, the jury could legitimately infer that the appellant showed no concern for his parents because, having killed them, he already knew that they were dead.

85I do not think that the Crown's argument is correct. The probative value of the appellant's behaviour rests on the assumption that the normal reaction of an innocent person in his situation -- and, on this account, one who has just been severely wounded -- would be to call out for his parents. That assumption is suspect. Our court has cautioned against inferring consciousness of guilt from an accused's silence or unusually calm reaction. I can do no better than to quote the words of Rosenberg J.A. in R. v. Levert, 2001 8606 (ON CA), [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.), at paras. 26-27:

Since it was not suggested that the appellant had adopted the allegations, the only possible basis upon which the evidence of the appellant's demeanour on being confronted with the allegation could be relevant in [page111] this case is that his unusually calm reaction was evidence of consciousness of guilt.

The probative value of this type of evidence is highly suspect. In two recent cases of Susan Nelles and Guy Paul Morin use of the accuseds' demeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

86Although the potential prejudicial effect of the evidence of the appellant's behaviour likely outweighed its probative value, I do not consider that the trial judge's failure to caution the jury about relying on this evidence caused an unfair trial. Although the Crown made his position clear, he did not overly emphasize it. More important, the trial judge did not instruct the jury that they could draw any inference from this evidence. He simply outlined the Crown's position, and he did so in very general terms. If the trial judge's omission was an error, it was not a reversible one.

4. The trial judge erred in failing to correct counsel's invitation to the jury to shift the burden of proof

87In his cross-examination of the appellant, the Crown asked him who else could have shot his parents. In his closing address to the jury, the Crown called on the jury to ask themselves who other than the appellant could have committed these murders: "I ask you again. Who else could have killed Jim and Carole Perlett? And on the basis of everything you have heard and seen in this trial, I suggest to you that no one else but Jamie Perlett."

88The appellant contends that by this cross-examination and closing argument, the Crown shifted the burden of proof to the defence to show that someone other than the appellant killed his parents. Effectively, the Crown invited the jury to find the appellant guilty because there were no other suspects. The appellant submits that the Crown's invitation to the jury was improper and that the trial judge was obliged to correct it. I do not accept this submission.

89I do not consider the Crown's cross-examination or his closing to have been improper. Instead, in my view, they were fair advocacy. Moreover the trial judge repeatedly and correctly instructed the jury on the burden of proof. The jurors could not have misapprehended their duty. [page112]

90The Crown's cross-examination and closing has to be viewed in the context of the defence's intruder theory. The Crown had to prove the intruder theory false. The implausibility of that theory was central to the Crown's case. Thus, whether anyone else had a motive to kill the Perletts became a relevant consideration. The appellant, the son of the deceased, might reasonably be expected to know whether anyone else had such a motive. In this context, the Crown's cross- examination was a fair line of questioning.

91Similarly, in this context, the Crown's rhetorical question to the jury "who else could have killed Jim and Carole Perlett?" was fair argument. The Crown built its case on exclusive insider opportunity. It was logical for the Crown to point out that Jamie Perlett was the only person with knowledge of the house and the location of the murder weapon who had the opportunity to commit the murders.

92Therefore I do not see anything in either the Crown's cross-examination or the Crown's closing argument that the trial judge was obliged to correct. Most important, in addition to giving the jury the standard charge on reasonable doubt and twice instructing them on the principles in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397, the trial judge expressly cautioned the jury that even though the appellant testified he had no onus or duty to prove anything:

You ought, nonetheless, to keep in mind that whether or not he gave testimony, there is no onus or duty upon him to prove anything. The onus rather is the other way around. It rests upon the Crown to provide each and every essential element of an offence before a finding of guilt can be made in respect of that offence. Even if you disbelieve every word of evidence uttered by Jamie Perlett from the witness box, the onus rests upon the Crown to prove the elements of the offence beyond a reasonable doubt.

93In the light of this caution and the trial judge's unassailable instructions on reasonable doubt, the jury could not have misapprehended the Crown's burden of proof. I would not give effect to this ground of appeal.

5. The trial judge erred in excluding the evidence of Dr. Loftus, or in failing to instruct the jury on the frailties of memories formed in traumatic situations

94Dr. Elizabeth Loftus is a renowned American psychologist. She has studied and written about human memory for many years. She is a recognized expert in the field.

95The defence sought to call Dr. Loftus as an expert witness for two purposes: to establish that a significant minority of the [page113] population mistakenly believe people are better able to remember details of traumatic events; and to establish that a witness to a traumatic event may have false memories of that event. By tendering Dr. Loftus' opinion evidence, the defence sought to counter the Crown's argument that the appellant's false statements and inconsistent accounts of what occurred showed he had fabricated his intruder story.

96The trial judge, however, refused to permit the defence to call Dr. Loftus. The appellant submits that he erred in law in doing so because he incorrectly applied the test in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 89 C.C.C. (3d) 402 for the admission of expert evidence, and he mischaracterized the nature of Dr. Loftus' evidence. Alternatively the appellant submits that the trial judge erred by failing to include the essence of Dr. Loftus' evidence in his jury charge, as he had said he would.

97The trial judge heard Dr. Loftus' proposed testimony on a voir dire. In his ruling he summarized the essence of her testimony concerning people's misconceptions about the memories of those who have had traumatic experiences [1999 36529 (ON SC), [1999] O.J. No. 2195, 26 C.R. (5th) 343 (Gen. Div.), at para. 9]:

She testified that studies have shown that a significant minority -- sometimes as great as fifty percent -- of the general population have misconceptions about various aspects of human memory. In particular she testified that studies have shown that it is common for lay people to believe that traumatic experiences will leave participants with an imprinted memory of that event. However, she said that scientific evidence in fact contradicts this belief. She testified that memory of violent events is in fact weaker than that of non-violent events. Moreover, she said that witnesses to traumatic events often have false or illusory memories of these events.

98The trial judge then applied the Mohan test for the admission of expert evidence and decided to exclude Dr. Loftus' testimony. The Mohan test turns on four criteria: a properly qualified expert; relevance; necessity; and the absence of any exclusionary rule.

99Although not ruling definitively on the first criterion, the trial judge seemed willing to accept that "Dr. Loftus' area of research was an established and recognized area of scientific research."

100The trial judge also seemed to accept, albeit reluctantly, that the defence had established the second criterion, relevance. Initially, the trial judge held that as the defence tendered Dr. Loftus' testimony to explain inconsistencies in the appellant's account, the defence was simply seeking to bolster the appellant's credibility. Ordinarily evidence used solely to bolster credibility is inadmissible. However, the trial judge [page114] quoted McLachlin J.'s reasons in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 85 C.C.C. (3d) 193, at pp. 228-29 C.C.C., in which she said that "expert evidence of human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact". This type of expert evidence puts the witness' testimony in its proper context.

101The trial judge therefore accepted that although "Dr. Loftus's proposed testimony does indirectly go toward bolstering Mr. Perlett's credibility, it might be admissible if that testimony is needed because the problem is beyond their [the jury's] ordinary experience."

102The trial judge's decision to exclude Dr. Loftus' evidence was based on his application of the third criterion of the Mohan test, necessity. He ruled that her evidence was not "necessary". He correctly stated [at para. 29] the test for necessity: for expert evidence to be admissible "the subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". He held that Dr. Loftus' proposed evidence did not meet this test.

103The trial judge noted that Dr. Loftus could not say how large a segment of the population shared a misconception about memory of traumatic experiences. The most she could say was a significant minority, perhaps as high as 50 per cent. The defence argued that her evidence suggested that at least some members of the jury were likely to have this opinion. The trial judge, however, was not convinced [at para. 29] "that it is necessary to have expert opinion evidence every time it is statistically likely that a juror will have a relevant misconception about human behaviour". He referred to this court's decision in R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97, [1997] O.J. No. 3172, 117 C.C.C. (3d) 385 (C.A.), at pp. 104-06 O.R., pp. 394-95 C.C.C. where Finlayson J.A. wrote that most people were aware that memories of brief and stressful incidents may be faulty. Thus the trial judge concluded that all that was needed was to caution the jury not to "draw too hasty a conclusion from any inconsistencies they may perceive in Mr. Perlett's statements".

104The trial judge also dealt with the fourth Mohan criterion and concluded that it provided an alternative basis to exclude Dr. Loftus' testimony. In his view [at para. 37], the cost of admitting the testimony, including its potential to overwhelm the jury, substantially outweighed its "marginal probative value".

105The appellant makes two complaints about the trial judge's ruling on the admissibility of Dr. Loftus' testimony. His [page115] first complaint is that the trial judge wrongly characterized her testimony as being relevant only to bolster his credibility. I do not agree. As my summary of the trial judge's reasons endeavoured to show, the trial judge did acknowledge that although Dr. Loftus' evidence was relevant to the appellant's credibility, it might still be admissible to put the appellant's evidence in a proper context.

106The appellant's second and main complaint is that the trial judge misapplied the test for necessity. The appellant argues that to be admissible, Dr. Loftus' evidence does not have to go as far as to demonstrate that every juror would likely have this misconception. Instead necessity will be met if the risk of misconception among the jurors is material. Here, the appellant argues, the risk is material because Dr. Loftus' scientific findings show that a significant portion of the population, albeit less than 50 per cent, perceive that human memories of traumatic experiences will be keen and clear. And, critically, the perception is a misconception because it does not accord with the scientific evidence, but runs counter to it.

107This is a cogent and attractive argument. I found it a difficult argument to resolve. However, two things support the trial judge's ruling that Dr. Loftus' evidence does not meet the necessity criterion. First, Dr. Loftus' evidence about the extent of the population harbouring this misconception was not terribly precise; indeed it was quite vague.

108Second, the trial judge's ruling was consistent with this court's judgments in McIntosh and R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 130 C.C.C. (3d) 353 (C.A.). Admittedly, Dr. Loftus' evidence did not suffer from some of the frailties of the proposed experts in those two cases. Those frailties, however, related to the first Mohan criterion, a properly qualified expert. On the necessity criterion, both Finlayson J.A. in McIntosh and Rosenberg J.A. in M. (B.) accept that jurors are likely to understand that people have faulty perceptions and memories of brief and stressful events. Contrary to Dr. Loftus' opinion, these cases hold that it is within jurors' normal experience, not outside their experience and thus expert assistance is not necessary. In the light of these cases and the vagueness of Dr. Loftus' evidence, I am not persuaded that the trial judge erred in exercising his discretion to exclude her testimony.

109The appellant's alternative submission is that the trial judge erred by failing to incorporate the essence of Dr. Loftus' evidence in his jury charge, as he said he would do. Although the trial judge did not say that he would do so, this submission has some merit. As Rosenberg J.A. said in M. (B.), warning or reminding the jury about the frailties of particular kinds of evidence is part of the trial judge's duty. [page116]

110In this case the trial judge did give the jury some guidance. For example, at the beginning of his charge, he listed some questions the jurors should ask themselves when assessing the credibility of a witness. Among these questions were: "[w]as the witness, because of the turmoil surrounding the event at the time it occurred, easily and understandably in error as to detail? Was it a situation of panic or a relatively calm period?" Later in his charge -- in a passage that I referred to earlier -- the trial judge cautioned the jury, largely in the terms that he had promised in his ruling: "I caution you not to jump too fast in coming to a conclusion that just because a false statement was made, that it was necessarily made to conceal guilt or to divert suspicion. You must consider whether there are any other reasonable explanations."

111Although those instructions were helpful, in my view the trial judge could have better assisted the jury had he directly reminded them that persons may have faulty memories and misperception of traumatic incidents. He probably should have focused on the inconsistencies in the appellant's various accounts of his struggle with the intruder, and cautioned the jury that in traumatic situations a person's recall of detail is not as accurate as one might normally expect. Thus the jury should not necessarily infer that the inconsistencies are evidence of a false story. However, I do not consider the trial judge's failure to give these additional instructions to amount to legal error. This aspect of his charge was adequate. Moreover, as I discuss later in these reasons, even if I am wrong, I would cure any error by applying the proviso in s. 686(1)(b)(iii) of the Criminal Code.

6. The trial judge should not have admitted the opinion evidence of Dr. Pan because it was unreliable and unscientific

(i) Introduction

112The Crown led expert opinion evidence from Dr. Peter Pan, a forensic pathologist. He gave an opinion about the amount of time that must have elapsed from when Mr. and Mrs. Perlett were shot until the police arrived. His opinion was based on the amount of blood the deceased lost and on changes in the colour and consistency of their blood.

113Defence counsel did not challenge the admissibility of Dr. Pan's evidence and did not call any expert evidence to refute it. Now, on appeal, the appellant contends that his trial counsel [See Note 2 below] made an error in judgment -- falling short of incompetence -- by [page117] failing to challenge the admissibility of Dr. Pan's testimony. The appellant argues that Dr. Pan's opinion evidence was unreliable and had no scientific foundation, yet it was crucial to the Crown's case. He submits that the trial judge erred by failing to exclude this evidence. Alternatively, the appellant submits that the trial judge failed to properly instruct the jury about the weaknesses in Dr. Pan's opinion.

114In connection with this ground of appeal, the appellant asks leave to introduce fresh evidence. The proposed fresh evidence consists of an agreed statement of facts, which explains defence counsel's strategy in dealing with Dr. Pan's evidence, and the affidavit and testimony of a forensic pathologist, Dr. Chiasson, which casts doubt on Dr. Pan's opinion.

115For reasons that I will elaborate on, I would not give effect to this ground of appeal. I see no basis in the trial record to exclude Dr. Pan's evidence. The trial judge's charge on the weaknesses in Dr. Pan's testimony was adequate.

116The proposed evidence of Dr. Chiasson does not meet the criteria in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 50 C.C.C. (2d) 193 for the admission of fresh evidence on appeal. Although his evidence is undoubtedly credible and relevant to the plausibility of the appellant's intruder story, it fails to meet the due diligence criterion, and more important, even if admitted, could not reasonably be expected to have affected the verdicts.

(ii) The context

117The appellant testified that he called the 911 operator within "a couple of minutes" of the gunshots. The police arrived about five minutes later. The Crown led evidence, principally from Dr. Pan, to contradict the appellant's testimony. The Crown's evidence, if accepted, showed a significant gap in time between when Mr. and Mrs. Perlett were shot and when the police arrived. The Crown relied on Dr. Pan's evidence, along with numerous other pieces of circumstantial evidence, to establish that the appellant made up his story about an intruder.

(iii) Dr. Pan's evidence and the Crown's argument on it

118Dr. Pan conducted the post-mortem examination of Mr. and Mrs. Perlett but he did not go to the crime scene. His opinion evidence on the passage of time was partly based on his observation of photographs of the deceased, and on the testimony of two police officers and a paramedic who had answered the 911 call.

119The Crown produced several photographs of the crime scene taken more than ten hours after the murders. The victims' [page118] blood, as shown in these photographs, was described as clotted, dried and dark brown. The two officers and the paramedic testified that these photographs represented what they saw when they arrived at the Perletts' house. One officer testified that he saw no blood flowing from either Mrs. Perlett's or Mr. Perlett's body.

120Relying in part on these photographs, Dr. Pan gave an opinion about the passage of time based on blood loss ("pooling"), blood clotting and blood drying. On blood pooling, however, the probative value of his opinion was undermined by two important concessions he made during cross- examination. In his examination in chief, Dr. Pan initially gave an opinion that the victims had lost or shed a "considerable" amount of blood, suggesting that their hearts would have had to beat for at least 30 minutes after they were shot and before the police arrived. In cross-examination, however, Dr. Pan acknowledged that the pooling of blood is not an exact science, and he reduced his estimate of 30 minutes or more to 15 minutes.

121Dr. Pan also retracted his time estimate for blood clotting. In his examination in chief, Dr. Pan opined that it would take eight to 18 minutes for the victims' blood to clot. In cross-examination, he conceded that in cases of traumatic death blood would clot in three to four minutes.

122On blood drying, Dr. Pan testified that after blood clots, it changes colour from bright red through stages of brown and then to black. In his opinion the "brownish black" colour of the blood in the photographs showed that the victims' blood was "over twenty minutes to half an hour old". However, Dr. Pan also conceded that colour is "subjective" and that an individual's view of colour resides "only in the eye of the beholder".

123Despite the weaknesses in Dr. Pan's opinion, the Crown relied on his evidence to argue that the appellant fabricated his story about an intruder. The Crown invited the jury to find that the passage of time between the gunshots and the arrival of the police was at a minimum 35 minutes, and more likely 40 to 60 minutes. The Crown reached this estimate by adding together Dr. Pan's minimum estimate on blood loss time (15 minutes) and clotting-drying time (20 minutes). Even this conservative estimate contradicted the appellant's story.

(iv) Defence counsel's trial strategy

124The appellant's trial counsel brought a motion to exclude Dr. Pan's evidence. However, he later abandoned the motion, conceded Dr. Pan's expertise as a forensic pathologist, and decided not to object to Dr. Pan's testimony or to call his own expert to challenge it. [page119]

125Instead, defence counsel pursued a different strategy, which appeared to consist of three planks. First, he obtained the Crown's consent to have Dr. Spencer, the surgeon who treated the appellant's wound, read and adopt the evidence of Dr. Tilstone, a forensic serologist. On the appellant's pre- trial motion, Dr. Tilstone had testified that he knew of no reliable technique to use the colour and consistency of blood to measure the passage of time. At trial, as agreed by counsel, Dr. Spencer read and adopted this evidence.

126Second, defence counsel obtained the Crown's agreement and Dr. Pan's concurrence that during his testimony Dr. Pan would adopt the following opinion of Dr. Chiasson: "the colour and consistency of blood at the scene of traumatic death are not reliable indices upon which one can rely to establish the post-mortem interval/time of death". Dr. Pan did so.

127Third, in cross-examination, defence counsel extracted concessions from Dr. Pan. These included Dr. Pan's concession that blood pooling is not an exact science, the reduction in his time estimates, and his concession that the appellant also lost a great volume of blood, which would have taken a long period of time to shed. The defence used this last concession to argue that Dr. Pan's opinion showed the appellant and his parents were shot close in time to each other, and that this supported the appellant's story.

(v) The trial record affords no basis to exclude Dr. Pan's evidence

128The appellant now submits that his lawyer should have objected to the admissibility of Dr. Pan's evidence and that the trial judge should have excluded this evidence because it failed to meet the Mohan test. Throughout his argument, the appellant emphasized that he was not suggesting his trial lawyer was incompetent or ineffectively represented him. Instead, he said simply that his lawyer had made a mistake or an error in judgment by failing to argue that Dr. Pan's evidence was not reliable and lacked a scientific foundation. The appellant points to two specific areas of unreliability: Dr. Pan's admission that the pooling of blood is not an exact science and the absence of any accurate measure of the blood lost by either victim.

129I think that the argument for excluding Dr. Pan's testimony is difficult if not virtually impossible to sustain when the defence chose not to challenge the admissibility of that testimony at trial. As Doherty J.A. explained in Bero, at paras. 12-13: "an appellant who can show no more than a possibility that evidence [page120] may have been excluded had it been challenged has not established an error in law or a miscarriage of justice":

It would be wrong for this court to undertake the analysis required to decided whether the evidence was admissible based on a record in which none of the relevant considerations were explored because the defence chose not to litigate the admissibility of the evidence at trial. Absent any suggestion of ineffective representation at trial, or some other adequate explanation for the absence of any objection to admissibility at trial, I would not give effect to an argument that comes down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful.

In so holding, I do not suggest that the failure to object at trial is fatal to any challenge to the admissibility of evidence at trial. Our law does not require timely objection as a condition precedent to appellate complaint. I do hold, however, that an appellant who can show no more than a possibility that evidence may have been excluded had it been challenged has not established an error in law or a miscarriage of justice.

130This passage applies directly to this case. Dr. Pan is now deceased but in his lifetime he performed over 10,000 post- mortem examinations, including 200 homicides. The defence conceded his expertise as a forensic pathologist. Moreover, the defence did not impugn Dr. Pan's ability to appraise the amount of blood loss. The defence did not suggest to Dr. Pan or through other evidence that his opinion on the volume of blood loss exceeded the scope of his expertise. And the defence did not suggest to Dr. Pan or through other evidence that his opinion based on changes in the consistency and colour of blood lacked a scientific foundation. Whatever weaknesses emerged from Dr. Pan's testimony seem to me to be matters of weight, not admissibility -- which was the very position taken by defence counsel at trial.

131Even Dr. Pan's agreement with Dr. Chiasson that a forensic pathologist cannot determine the post-mortem interval -- that is, the time of death -- based on the colour and consistency of blood did not preclude Dr. Pan's quite distinct opinion on the minimum time required for blood to achieve a certain appearance. In short, I am not persuaded that the trial record affords any basis to now exclude Dr. Pan's evidence.

(vi) The trial judge's charge on the weaknesses in Dr. Pan's opinion was adequate

132Alternatively, the appellant submits that the trial judge failed to properly instruct the jury on the weaknesses in Dr. Pan's opinion evidence. I disagree. In my view, his charge was at least adequate.

133The appellant makes two specific complaints and one general complaint about the trial judge's charge. The two specific complaints [page121] are: the trial judge failed to correct the Crown's argument that Dr. Pan's time estimates for blood pooling and for changes in the colour and consistency of blood could be added together to produce an overall estimate of the minimum interval of time between the shootings and the arrival of the police; and the trial judge failed to instruct the jury that the colour and consistency of blood could not be reliably used to fix the post-mortem passage of time. The general complaint is that the trial judge failed to warn the jury that they should give no weight to an expert opinion if the facts on which the opinion is based are not proven.

134I do not think that the appellant's specific complaints are well founded. First, although admittedly Dr. Pan's evidence is not entirely clear, the following portion of his testimony supports the Crown's argument on adding Dr. Pan's time estimates:

Q: How does that blood flow come to stop?

A: When the heart stops.

Q: After the blood flow stops, can you describe a process by which -- what happened then to whatever blood is left on the forehead?

A: Well, a clotting mechanism starts.

(Emphasis added)

135Second, although Dr. Pan agreed with Dr. Chiasson that the colour and consistency of blood could not reliably be used to estimate the time of death, he could nonetheless give an opinion about the minimum time that must have elapsed between the shootings and the arrival of the police. The two are distinct. Dr. Pan could give a conservative estimate on the passage of time, but the actual time of death may have occurred much earlier.

136The trial judge gave the jury standard instructions on how to evaluate expert testimony. As Dr. Pan's opinion obviously suffered from underlying factual weaknesses, he might well have cautioned the jury that an expert's opinion merits weight only if the underlying facts on which it is based are proven. The trial judge did not do so in the general terms urged by the appellant. But he did specifically instruct the jury on the underlying weaknesses in Dr. Pan's opinion. For example:

-- he cautioned the jury about relying on witnesses' observations about the colour of blood;

-- he reminded the jury that the photographs on which Dr. Pan relied were taken hours after the shootings and that the constables were not entirely certain that these photographs accurately represented the colour of the blood they observed; [page122]

-- he gave other examples where photographs did not represent the true colour of objects;

-- he told the jury that Dr. Pan agreed with Dr. Chiasson's opinion that blood cannot be used to reliably establish the time of death;

-- he reminded the jury that Dr. Pan "did not attempt in any way" to provide determinative evidence of the time of death;

-- he told the jury that the pooling of blood was not an exact science;

-- he pointed out the discrepancy between Dr. Pan's opinion that the appellant had shed a great deal of blood and Dr. Spencer's opinion that he did not lose a significant amount of blood.

137These instructions were undoubtedly helpful to the jury. They alerted the jury to specific weaknesses in both the scientific methodology and the factual foundation underlying Dr. Pan's opinion. In the light of these instructions, I am satisfied that the trial judge's charge on Dr. Pan's evidence was at least adequate. Moreover, it could not have escaped the jury's attention that the defence's cross-examination extracted important concessions from Dr. Pan. I doubt that the jury would have given undue weight to Dr. Pan's opinion. I would dismiss this ground of appeal.

(vii) The motion to introduce fresh evidence

138The appellant seeks leave to introduce as fresh evidence an agreed statement of facts explaining defence counsel's failure to deal adequately with Dr. Pan's evidence, and the affidavit of Dr. Chiasson together with the cross- examination on that affidavit. The Crown filed the affidavit of Jonathan Newman, a forensic biologist, to answer Dr. Chiasson's affidavit. The appellant does not object to admitting Mr. Newman's affidavit.

139The appellant asks for leave to introduce this fresh evidence either under the test in Palmer, supra, or at least to better evaluate the reliability of Dr. Pan's opinion. See R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 100 C.C.C. (3d) 225 (C.A.). On either basis I am not persuaded that the fresh evidence should be admitted.

140The Palmer criteria are well established. Fresh evidence that addresses a factual issue raised at trial will be admitted if it meets four criteria: [page123]

-- it must not have been available by the exercise of due diligence

-- it must be relevant to a potentially decisive issue at trial

-- it must be credible

-- it could if believed and taken together with the rest of the evidence reasonably be expected to have affected the verdict.

Fresh evidence admitted under Palmer results in a new trial.

141Only the first and fourth Palmer criteria are in issue on the appellant's motion. The Crown accepts that the proposed evidence is relevant to the plausibility of the appellant's intruder story and is credible.

142I will deal first with the due diligence criterion. Although the failure to exercise due diligence is not fatal in cases where the interests of justice call for the admission of fresh evidence, it nonetheless remains an important criterion. As Doherty J.A. said in R. v. M. (P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (C.A.), at p. 411 C.C.C.: "The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing the admissibility of 'fresh' evidence on appeal."

143Here the appellant failed to meet the due diligence criterion. The proposed fresh evidence of Dr. Chiasson was unquestionably available at trial by the exercise of due diligence. The defence was well aware of the "blood issues" about which Dr. Pan would testify. The defence discussed these very issues with Dr. Chiasson. The defence met with Dr. Pan and even obtained his agreement to the contents of Dr. Chiasson's opinion letter. Having carefully considered these "blood issues", the defence made a tactical or strategic decision not to call Dr. Chiasson and instead to impugn Dr. Pan's evidence on cross-examination.

144The defence now says that its strategy was an error in judgment. However, the reassessment in hindsight of a tactical decision made at trial provides an unsatisfactory explanation for the failure to exercise due diligence. We are not being asked to find that this tactical decision resulted in a miscarriage of justice, as the appellant does not argue ineffective representation. It seems to me then, the appellant must acknowledge that he failed to meet the first criterion of the Palmer test.

145Even if this court is willing to excuse the appellant's failure to exercise due diligence, in my view this is not one of those cases where the interests of justice call for the admission of the fresh evidence. The proposed evidence of Dr. Chiasson, though [page124] credible and relevant, could not reasonably be expected to affect the verdicts for two reasons. First, the fresh evidence does not provide any grounds to exclude Dr. Pan's opinion. Nor, especially when considered together with Mr. Newman's evidence, does it even significantly undermine Dr. Pan's opinion. Second, and more important, the fresh evidence relates to an issue -- the minimum time interval between the shootings and the arrival of the police -- that was not crucial to the Crown's case.

146At the time of the murders, Dr. Chiasson was the Chief Pathologist for Ontario. Later he became the Deputy Chief Coroner for Ontario. He is obviously qualified to give opinion evidence in the field of forensic pathology. I accept that in his affidavit, Dr. Chiasson calls into question the reliability of Dr. Pan's time estimates. He takes issue both with Dr. Pan's estimate on blood loss and with his estimate on clotting and drying. He summarizes his opinion in the following paragraph of his affidavit:

It is my view that during his testimony at Mr. Perlett's trial, Dr. Pan ventured into areas which were beyond his expertise. In fact, Dr. Pan ventured into areas that are not within the purview of forensic pathology. It is inconceivable to me, as a forensic pathologist, how Dr. Pan could determine the length of time blood loss would have taken in this case as there is no scientific basis for such a calculation. His testimony on this issue is, therefore, not reliable. His testimony regarding the clotting and drying processes is equally unreliable.

147However, in his cross-examination on the amount of blood loss, Dr. Chiasson seemed to soften his opinion somewhat. He agreed that the Perletts did not die instantaneously and that "it did take some time". He conservatively estimated the time to be up to five minutes. But he allowed that Dr. Pan's opinion was "not unreasonable" if the blood loss was "based solely on the entrance wounds". Dr. Chiasson's real concern was that the basis for Dr. Pan's opinion was not clear to him. He said, "Dr. Pan may well be right, but he could just as well be wrong. I don't see the basis for the opinion that he has rendered."

148Although Dr. Chiasson maintained that Dr. Pan's opinion on clotting and drying was unreliable, he acknowledged that his own expertise in that area was limited. In his letter to defence counsel before trial, he said, "[p]lease note that my personal experience in the area of scene investigation is limited and therefore an opinion from a forensic biologist with expertise in blood pattern interpretation might be of greater value to you".

149The Crown's expert, Jonathan Newman, is a forensic biologist. In his affidavit filed in answer to Dr. Chiasson's evidence, he gives an opinion on clotting and drying time based on scientific studies and techniques. His opinion, to a large extent, supports [page125] the time estimate given by Dr. Pan and relied on by the Crown. Indeed, Mr. Newman suggests that Dr. Pan's estimate was conservative. Thus, Mr. Newman says in his affidavit:

-- "textual authorities in this field support the time range for clotting given by Dr. Pan and confirmed by Dr. Chiasson";

-- "Crown counsel, in its closing address . . ., by estimating clotting time at three minutes and collapsing it with drying time, urged an extremely conservative view of how long the clotting process would have taken"; and

-- ". . . in my opinion, a conservative estimate of the time to have elapsed that would result in the drying of the blood, as observed on the head of the deceased in the photographs, would be in excess of 30 minutes. This does not take into account the time for the cessation of the blood flow."

150Therefore, the fresh evidence leaves the court with two experts, Dr. Pan and Dr. Chiasson, who disagree on the issue of blood loss; and two experts, Dr. Pan and Mr. Newman, who largely agree on the issue of blood clotting and drying, and one expert, Dr. Chiasson, who does not agree. I am not persuaded that Dr. Chiasson's opinion, either on its own or taken together with Mr. Newman's opinion, so undermines the reliability of Dr. Pan's opinion that the interests of justice warrant admitting the fresh evidence.

151Even if I were persuaded of the importance of Dr. Chiasson's opinion, I do not regard the issue to which his evidence relates as crucial to the Crown's case. The evidence relates to the minimum time interval between the shootings and the arrival of the police. That time interval was one of the considerations the Crown relied on to argue that the appellant's intruder story was false. But it was only one consideration. I appreciate that the jury asked several questions about Dr. Pan's evidence. But the Crown also relied on a litany of other considerations, some of which I have listed earlier in these reasons (see paras. 34 to 36 and 37 to 42) to show that the appellant's story about an intruder was false.

152In sum, I do not view the fresh evidence to relate to a crucial or central issue in the case. In my view, it could not reasonably be expected to affect the verdicts. I would dismiss the appellant's motion to introduce fresh evidence.

D. The Application of Section 686(1)(b)(iii) of the Criminal Code

153Even if the trial judge made a "wrong decision on a question of law", under s. 686(1)(b)(iii) of the Criminal Code, this court may dismiss the appeal where "it is of the opinion that no [page126] substantial wrong or miscarriage of justice has occurred". I have concluded that the trial judge did not make any serious errors in his charge to the jury or in his ruling on the admissibility of expert evidence. However, even if I am wrong in that conclusion, I would apply s. 686(1)(b) (iii) of the Code and hold that no substantial wrong or miscarriage of justice has occurred. I would do so because, as I outlined at the beginning of these reasons, and using the words of Arbour J. in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 160 C.C.C. (3d) 1, at para. 31, "the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible".

154In other words, not just harmless errors of law, but even serious errors of law are amenable to the proviso in s. 686(1)(b)(iii) if "the evidence is so overwhelming that a trier fact would inevitably convict". See R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, 64 C.C.C. (3d) 193, at p. 202 C.C.C.

155Of course, the court must [be] cautious in applying the proviso, particularly if the error of law is the improper exclusion of evidence that might be exculpatory. See R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, 14 C.C.C. (3d) 321. But here, even if the trial judge erred in excluding Dr. Loftus' evidence, I would apply s. 686(1)(b) (iii). Dr. Loftus' evidence does not touch the three crucial planks of the Crown's case: an insider must have committed the murders; the appellant was the only insider with the opportunity to do so; and the physical evidence at the scene pointed to his guilt.

156The killer was intimately familiar with the Perlett household. He knew how and where to get the murder weapon and the ammunition for it. The appellant was the only person who had both the knowledge and the opportunity. The physical evidence inescapably implicated him. His distinct shoeprints were found on papers in the garage where the gun and ammunition were located. There was no reasonable possibility that those prints could have been left at another time by another person. Once he became aware of the incriminating implication of shoeprint evidence, the appellant tried to change his story about what shoes he wore on the night of the murders. A partially empty box of ammunition missing the exact number of shells used in the murders was found in the basement of the Perlett home where, even on the appellant's story, the intruder did not enter. This is all overwhelmingly powerful evidence of the appellant's guilt.

157By contrast, the appellant's intruder story is inherently implausible and has not a shred of any real evidentiary support. On the appellant's account, a stranger must have entered the Perlett home although it was visibly occupied (cars were present [page127] and lights were on); found obscurely located keys to the gun locker and filing cabinet; figured out that these were the right keys even though they were not marked; found the gun locker and filing cabinet even though their outward appearance gave no indication that they contained guns or ammunition; killed the Perletts without any apparent motive to do so; stolen nothing from the household, nor ransacked or disturbed any part of it; and then disappeared into the night. This account of what occurred defies credulity.

E. Conclusion

158I would dismiss both the motion to introduce fresh evidence and the appeal. The evidence so overwhelmingly points to the appellant's guilt that a new trial is not warranted. It is therefore unnecessary to deal with the Crown's appeal.

Appeal dismissed.

Notes

Note 1: When the box was produced at trial, it contained only 39 shells. A police sergeant testified he must have misplaced one shell when he examined the box at the Centre of Forensic Sciences.

Note 2: None of his counsel on appeal represented the appellant at his trial.