R. v. Chalmers, 2009 ONCA 268

CITATION: R. v. Chalmers, 2009 ONCA 268

DATE: 20090327

DOCKET: C41357

COURT OF APPEAL FOR ONTARIO

Gillese, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Chalmers

Appellant

Philip Campbell and Jonathan Dawe, for the appellant

Brian McNeely, for the respondent

Heard: October 15, 2008

On appeal from the judgment of Justice Joesph M.W. Donohue of the Superior Court of Justice, sitting with a jury, dated November 13, 2003, and the sentence imposed by Justice Donohue on December 9, 2003.

R.A. Blair J.A.:

I. OVERVIEW

1On March 15, 1986, Jane Chalmers was found dead in a ditch along a rural side road near Sarnia, Ontario. Her horse was found running loose nearby, and the police concluded that her death was the result of a riding accident. The appellant, her husband, was not a suspect at the time.

2Fifteen years later, in 2001, the original investigating officer came across photos of Ms. Chalmers’ dead body when he was cleaning out his desk. The photos piqued the curiosity of one of his colleagues (a rider himself) and, after re-examining them again, the police became sceptical about the accident theory and re-opened the case as a homicide investigation. In the course of the investigation, they persuaded the appellant to attend at the police station voluntarily to submit to a polygraph test. While being interviewed at length around the taking of that test – in circumstances that I shall explore – the appellant ultimately confessed to the killing. He wrote a letter of apology to his former wife’s mother, and he agreed to, and did, attend at the site of the death to conduct a re-enactment of the event with the police. A year later, the appellant recanted his statements and disavowed the re-enactment.

3On November 13, 2003, a jury found the appellant guilty of the second degree murder of Ms. Chalmers. The trial judge subsequently sentenced him to life imprisonment without eligibility for parole for 14 years.

4The appellant now attacks both his conviction and sentence.

II. ISSUES

5Although he raised a number of arguments in his factum, the appellant’s principal oral submissions regarding conviction were three-fold.

6First, he says that his various out-of-court statements were inadmissible because they were taken in violation of his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms. In this regard, the appellant concedes he was properly and repeatedly advised of his Charter rights on several occasions during the part of the polygraph interview preceding the point where he first admits to hitting his wife when she got off her horse. He contends that he was detained and that his jeopardy changed significantly at that point, however, and that the police were therefore required to re-administer his s. 10(b) rights in full immediately after that admission. Because they failed to do so, the appellant submits that his statements should have been excluded pursuant to s. 24(2).

7Second, the appellant argues that the trial judge erred in refusing to leave the issue of intent and the potential verdict of manslaughter with the jury.

8Third, the appellant seeks leave to introduce as fresh evidence a report prepared by Dr. Laurence Holt, a professor emeritus in kinesiology at Dalhousie University. This proposed evidence bears on the issue of whether Jane Chalmers might have died in a horse riding accident – as the original investigation had concluded – rather than as a result of foul play. Dr. Holt presents an alternative construction of the evidence centred on the possibility of Ms. Chalmers’ horse having made a rapid pivoting turn causing her to fall off, catch her foot in the stirrup, and be swung around in an arc, striking her head multiple times on the ground before sliding into the ditch. Although the issue of death by riding accident was central at trial, this particular construction of the evidence was not addressed by any expert or put to the jury.

9Finally, with respect to sentence, the appellant submits that the period of parole ineligibility imposed should be reduced from 14 to 12 years.

10For the reasons that follow, I would dismiss the conviction appeal and grant leave to appeal sentence but dismiss the sentence appeal.

III. THE CONFESSIONS AND ALLEGED VIOLATION OF THE CHARTER

11In my view, the trial judge was fully justified in concluding that the appellant’s s. 10(b) Charter rights were not infringed during the polygraph examination and subsequent interrogation. In order to explain my conclusion, it is necessary to review the circumstances of the confession in some detail.

(1) Circumstances Surrounding the Confessions

12In June, 2001, DC Peter Baker (the curious colleague of the original investigator) and DC Joe Devolder had the investigation formally re-opened as a homicide, with Devolder as the lead investigator. They interviewed officers involved in the 1986 investigation, the coroner who had found the death to be a riding accident and various neighbours and friends of the Chalmers. They took additional photos of the crime scene and sought expert opinions. One expert, Dr. Brooks, thought the new and old photographs indicated that the death could have been caused by a horse. However, the other expert, Dr. Chiasson, considered that possibility “unlikely”.

13The investigators persisted. In August, 2001, two neighbours and friends, Don Moore and Dennis Spitzig, submitted to polygraph tests. Mr. Moore was a horseman and former high school friend of Jane Chalmers. When questioned by police, he admitted that he had been having an affair with Jane shortly before she died. Mr. Spitzig owned the farm where Ms. Chalmers stabled her horse, and he was with the appellant when they found her body by the side of the road in the ditch.

The October 3, 2001 Interview

14In September, 2001, Devolder and Det. Staff Sgt. David Quigley, of the OPP Criminal Behaviour Analysis Services, decided to interview the appellant. On October 3rd, Quigley called the appellant and asked if he would attend at the police station to discuss an on-going investigation. When he arrived at the station, Quigley told the appellant the police had “received some information … suggesting that [Jane Chalmers’] death might not have been an accident.” The appellant denied any involvement and gave an exculpatory statement. Knowing that the police had no such information, Quigley then asked why someone would say they had seen the appellant’s car on Waterworks Road, where the body was found, the morning of the death. The appellant conceded that he could have travelled down that road to check whether the Spitzigs were home, but did not recall doing so. Quigley told the appellant the police were aware of some affairs that he and his wife had been having back then. The appellant denied ever having been unfaithful to Jane and said that no one had ever suggested to him that she had been having an affair.

15The police had no evidence at the time that the appellant’s car had been seen on Waterworks Road at the time and, while Don Moore had admitted his affair with Jane Chalmers to them, the police had no evidence the appellant was having an affair. The interview ended with Quigley asking the appellant to submit to a polygraph test in order to help the investigation along. Devolder later called the appellant and arranged for the test to take place on October 5, 2001.

The October 5, 2001 Polygraph Interview and Subsequent Inculpatory Statements

16When the appellant voluntarily arrived at the police station on October 5th and the interview began at 12:31 P.M., the police had no conclusive evidence that Jane Chalmers’ death was a homicide, and no direct evidence implicating her husband in her death. When he left five-and-a-half hours later, they had an oral confession confirmed by a letter of apology written by the appellant to the deceased’s mother, and they were on their way to the scene of the death where the appellant would walk them through a re-enactment of what he then recalled had happened. The investigation had advanced considerably.

17On October 6th, the appellant made further admissions about the offence to two relatives who came to visit him at the police station, as well as further admissions to DC Devolder during a twenty-five minute discussion with him that day.

18Det. Sgt. Edward Murray conducted the interview and polygraph test on October 5th, following a briefing by Quigley and Devolder. Murray’s manner was courteous and solicitous throughout the lengthy process. In his ruling on the statement voir dire, the trial judge noted that Murray’s communication style was gentle and sensitive, and found him to be “persistently persuasive, but not … aggressive.”

19The interview can be divided into three general phases. In the first phase (leading up to and including the administration of the polygraph test) the appellant was advised of his rights, the polygraph process was explained to him, and there was some general discussion about the events surrounding Ms. Chalmers’ death in which the appellant maintained his denial of any involvement. In the second phase (following the polygraph test) Det. Sgt. Murray changed the tone and abruptly challenged the appellant by indicating there was no doubt in his mind that the appellant caused his wife’s death. He immediately reminded the appellant of his rights before embarking on a lengthy monologue. During that monologue, Murray suggested that the appellant had been wronged by his wife, was upset because of that, and met Ms. Chalmers on the road to talk things through, but things just got out of hand – a less serious scenario than deliberate murder. Ultimately, Murray extracted an admission from the appellant. Finally (in the denouement) the confession was fleshed out, the appellant confirmed the confession in writing in the form of a letter of apology to Ms. Chalmers’ mother, and agreed to attend at the scene of the murder for a re-enactment.

20At the outset of the polygraph interview, the appellant was advised that he was not then being detained, that the door was unlocked and he was free to leave any time he wished, and that he could stop the interview process at any time if he wished to do so. He acknowledged his understanding of this. He was told by Murray that under the Charter he had the right to consult a lawyer, that the police had the names and phone numbers of legal aid lawyers and duty counsel, and that if at any time during the interview he wanted to speak to a lawyer “just let me know and I’ll … I’ll get a telephone for you and you can make a phone call in private.” This was “an open offer.” The appellant at no time prior to his admission indicated he wished to call a lawyer. When asked by Murray if he wanted to do so, the appellant replied “No, just you … Hopefully, this will clear it and we’ll move on”.

21The appellant was also advised of his right to remain silent. In relation to the polygraph test, he was told that Murray’s opinion based on the results of the test was not admissible in court but that the contents of any conversations between the two of them may be. The appellant indicated his understanding of all of this advice.

22Finally, Murray reviewed the Provincial Police Polygraph Examination Consent form with the appellant, while the appellant followed along, nodding his head. Having read the form and later initialled his understanding of each of the foregoing rights before signing the form, the appellant had specifically been made aware of the toll-free 1-800 number that he could use to access free legal advice.

23It was made clear to the appellant almost from the outset of questioning that he was a suspect in a homicide case. He was asked repeatedly – nine times during the test alone – whether he had done anything physical to cause his wife’s death. By the trial judge’s count, there had been 27 references to the appellant’s potential jeopardy by the time the polygraph test had been administered.

(2) The Trial Judge’s Findings on s. 10(b)

24In considering the s. 10(b) argument, the trial judge made the following factual findings:

It is clear from that form [i.e., the Provincial Police Polygraph Examination Consent] and from the reading that the officer and the accused went through in connection with it that Mr. Chalmers understood he didn’t have to speak, he understood he didn’t have to stay, he understood that his jeopardy was with respect to the offence of homicide. He understood that the officer’s opinion with respect to the polygraph would not be admissible in court whereas the conversation between the two of them would. He received a secondary warning with respect to the right to silence and again he understood that his conversation with the officer would be admissible, but that the officer’s opinion on the polygraph examination would not be admissible. He understood he had the option to stop the proceedings, he understood that the test was voluntary. By my enumeration by the end of this procedure the offence of homicide has been referred to at least three times.

With respect to his s. 10 rights by the end of this procedure Mr. Chalmers has been advised for a fourth time that he has the right to contact a lawyer and through reading of the form and in initialling it later he has been advised twice specifically about the 1-800 phone number.

It is clear that he voluntarily agrees to take the test. It is clear that he understands he can stop it at any time. It is clear that he understands his right to silence and understands that anything he says may be given in evidence in court. It is clear that he understands everything is being recorded on video. It is clear that he understands that if he admits or confesses to the offence of homicide he will be arrested and charged.

25The trial judge concluded that the appellant’s statements were voluntary and that they had not been obtained in violation of his Charter rights. He reviewed the legal requirements of s. 10(b) at length, and concluded that the appellant “clearly understood all of his rights through the continuum from the point when Murray elaborately explained them to the point when he expressed … a desire to exercise his right to call a lawyer” in relation to seeking bail, after the initial confessions and letter, after he was placed under arrest, and after he had agreed to participate in the re-enactment.

26These findings were based on the trial judge’s assessment of the testimony given on the voir dire by the appellant, the police officers involved, and other witnesses, and on the trial judge’s careful review and analysis of the video of the entire interview and polygraph process. Having watched the video, the trial judge was in an excellent position to gauge the appellant’s demeanour and reactions during the interrogation and to draw inferences – which he did – about the nature and extent of the appellant’s understanding and volition during the process.

(3) Arguments on Appeal

27The appellant argues that the trial judge erred in concluding that his s. 10(b) Charter rights had not been infringed. Mr. Campbell acknowledged, as the trial judge found, that the appellant was “detained” at the point in the interview immediately following his admission that he started to hit Ms. Chalmers when she got off her horse. This was at 4:24 p.m., about 3 hours and 53 minutes into the interview. The argument is that the police were required to re-advise the appellant of his s. 10(b) rights to counsel immediately after his first admission, which they failed to do. Consequently, the appellant submits, all of his subsequent statements to the police, and to others, and all of the information the police obtained through the re-enactment at the site, should have been excluded from the evidence at trial pursuant to s. 24(2) of the Charter.

28The rationale behind this submission is that the appellant had, at this point, finally been detained, his jeopardy had changed significantly since the police then had grounds to arrest him for a homicide offence, and considerable time had passed since the appellant had been given a proper s. 10(b) caution at the outset of the polygraph interview: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Schmautz, 1990 CanLII 134 (SCC), [1990] 1 S.C.R. 398; R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.); R. v. Amyot, 1990 CanLII 3042 (QC CA), [1991] R.J.Q. 954 (C.A.); R. v. Paternak, 1996 CanLII 147 (SCC), [1996] 3 S.C.R. 607, rev’g (1995), 1995 ABCA 356, 174 A.R. 129 (C.A.). In such circumstances, there must be a reasonably close temporal link between the detention and the s. 10(b) caution, argues the appellant. It did not exist in this case.

29In response, the Crown submits that the trial judge applied the correct legal principles, and there was no error in his conclusion – the police properly advised the appellant of his s. 10(b) rights early in the interview, and the appellant was well-aware of all of those rights when he was detained following his first confession. There was a sufficiently close temporal and factual link.

(4) Analysis: Failure to Establish a s. 10(b) Violation

30I too have reviewed the key parts of the video of the polygraph interview. In my view, the trial judge’s findings were amply grounded in the evidence. The trial judge was alert to the requirements set out in the jurisprudence and his conclusion that there was a sufficient factual connection between the detention and the s. 10(b) caution was fully justified.

31In Schmautz, the Supreme Court of Canada made it clear that an anticipatory pre-detention caution is not precluded where there is a close factual connection or linkage relating the warning to the detention and the reason for the detention. Mr. Schmautz was charged and convicted of refusing to comply with a breathalyser demand in the following circumstances. The police initially attended at his home in the course of investigating a hit-and-run accident. He invited them in. The officers advised him of the reason for their investigation and then of his right to remain silent and of his right to counsel. Subsequently, while questioning Mr. Schmautz, the officers formed the view that he was impaired and demanded that he submit to a breathalyzer test. He refused to comply and ushered them from his home. Ten minutes had elapsed between the reading of the warnings and the subsequent breathalyzer demand.

32Mr. Schmautz argued that the earlier warning was not sufficient under s. 10 because he was neither detained nor in any legal jeopardy at that time. In order to comply with s. 10, he argued that a fresh warning should have been given at the moment the detention commenced. In dissent, Lamer J. accepted this argument. However, the majority did not. Speaking for the majority (Dickson C.J.C., Gonthier, La Forest, Sopinka, Cory and McLachlin JJ.), Gonthier J. engaged in the following analysis (at pp. 415-416):

Quite obviously, a Charter warning cannot amount to sufficient compliance no matter when and in what circumstances it is read. It must satisfy the purpose of s. 10, that is, the detainee must be made aware of the right to counsel and be permitted to retain and instruct counsel without delay with respect to his detention and the reasons therefor.

In this respect, the fact that the advice is given before detention is not determinative. … It cannot be that a warning falls short of being sufficient compliance with s. 10(b) of the Charter for the sole reason that it is given before the exact moment in time when detention commences. The concept of detention has evolved since the Charter came into force and it is not always easy to determine in given circumstances whether and when it legally occurs. From the mere investigation to which a person wilfully collaborates to the custodial arrest of that person, there is a wide spectrum encompassing the varying degrees of legal jeopardies in which the state can put individuals; in some cases, the precise moment when detention arises is by no means easy to ascertain. Keeping that in mind, it is understandable that police officers sometimes lean towards greater caution to make sure that a person is aware of his or her rights at any relevant time and give the warning when investigation commences or during its course. Finding a Charter violation upon the sole fact that the warning was read before detention arose would be demonstrative of a legalistic and technical approach having little regard to the purpose of s. 10(b), as reflected by its very wording. It provides in its English version that “[e]veryone has the right on arrest or detention” (emphasis added) to retain and instruct counsel without delay and to be informed thereof. The French version reads: “[c]hacun a le droit, en cas d’arrestation ou de détention” (emphasis added). If one reads the two versions together it becomes clear that s. 10(b) refers to a factual connection between the detention and the right to a warning rather than a mere coincidence in time. It is true that the temporal aspect becomes vital at one point because the warning must be given “without delay”. If the warning is given before detention, however, the only requirement is a close factual connection relating the warning to the detention and the reasons therefore. The existence of the required link will depend on the facts of each case. [Italics added; citations omitted.]

33Here, as noted, the trial judge conducted a full and careful review of the evidence and the videotaped interview. He was alive to the Schmautz test, citing it at length, and concluding that “there was a close factual connection between the earlier elaborate explanation of [the appellant’s] s. 10(b) rights,” and the detention, and that there had been a “clear waiver” of those rights throughout. These conclusions were supported on the record.

34The appellant was told and understood at all times that he was being questioned as a suspect and that his jeopardy was with respect to an offence of homicide – he was asked repeatedly whether he had done anything to cause his wife’s death. Thus, his status was as a murder suspect, and the nature of his jeopardy did not change after his first admission. There was nothing coercive or oppressive in the approach taken by Det. Sgt. Murray or in the techniques he employed. The appellant was fully advised of his rights, including his s. 10(b) right to counsel, at the outset of the interview. He freely waived those rights. Roughly three hours and twenty minutes later – after the appellant had submitted to the polygraph test and after Det. Sgt. Murray had returned to the room and announced that he had “absolutely no doubt” the appellant had caused Jane’s death, thus reinforcing the appellant’s jeopardy – Murray immediately reminded him of his rights. The videotape shows the appellant nodding twice and saying “uhm, hum”. This was about thirty minutes before the first admission. The appellant’s responses in cross-examination on the voir dire in relation to this exchange are more or less decisive:

Q. And when he said to you, “Now you remember those rights that we talked about John?”, you knew exactly what he was referring to, correct?

A. Correct.

Q. And when he said to you, “They’re still in effect, okay?”, you knew what he meant, correct?

A. Correct.

Q. That was the list of rights that you and I have already reviewed that he discussed with you in some detail before the polygraph examination, correct?

A. Correct.

Q. And when he said again, “Do you remember what those rights are?”, again, you acknowledged that you did, correct?

A. Correct.

Q. So, there was no confusion or misunderstanding in your mind about that at that time, fair?

A. Fair.

35After confronting the appellant with his accusation and reminding him of his rights following the polygraph test, Det. Sgt. Murray embarked upon what the trial judge characterized as his 26 minute “plea” to garner the appellant’s agreement to the less serious of two possible alternative versions of how the death could have occurred, namely either the high version of deliberate murder or the low version of spontaneous unplanned violence resulting from a gentle but wronged man being “pushed too far” and “things just [getting] out of control”. Eventually, the appellant begins shaking his head “no” to the more serious scenario and nodding his agreement to the less serious one. This part of the interview concludes with the following important exchange and the appellant’s first admission:¹

MURRAY: … That’s what’s happened here. You went down there because you wanted to talk to Janie about this because you wanted to make it right. You wanted to make it right but Janie had that stubborn, unreasonable streak in her and that wasn’t gonna happen. In fact she was pushing you and she was hurting you. That’s what’s happened here because I don’t think you went down that road to do this. That wasn’t on your mind. You went to try to make it right … and I don’t think you’re telling me you went down this road to do this deliberately.

[The appellant shakes his head “no” at this point.]

You went down this road to try and make things better with Janie and that wasn’t gonna happen because Janie wouldn’t let it happen.

You did not go down that road to hurt her deliberately. You did not. I know it and you … know it. That’s not why you went down there but that’s not what happened. What happened was things got out of control, right? That’s what happened.

[The appellant appears to nod his agreement to this]

You went down there to try and make things better because you wanted to do something about the relationship. That’s … she wouldn’t let you. Like I said to you you’re as much a victim here as anybody. You are as much a victim here John as anybody. You’re not the kind of guy who went down that road to hurt her. You went down to make things better and things got out of hand. Right? That’s what’s happened. Things got out of hand.

[The appellant nods positively, then says:]

CHALMERS: Well, yeah, I’ll straighten it out now. Yes. [Emphasis added.]

36At this stage of the interview, the appellant appears to signal a willingness to break from his pattern of consistently denying involvement. The following discussion about consulting a lawyer takes place immediately thereafter:

MURRAY: Okay

CHALMERS: Do I need a lawyer now? Ah how’s this gonna work?

MURRAY: Well if you wanna speak … if you wanna speak to a lawyer, you we we can … we can have you … we can have you talk to a lawyer any time you want, okay?

CHALMERS: Yeah.

MURRAY: Any time you want you can make a phone call in private.

CHALMERS: Uhm hum.

MURRAY: Okay, make a phone call in private. Uhm I don’t know if you have a lawyer that you want to talk to?

CHALMERS: No I don’t.

MURRAY: But … but I … I … I can help you out with that. But that’s what I think we’re looking at here. This ... you did not go down that road to make this, to make this happen. You went down that road to try and fix things.

CHALMERS: Can I call my wife and tell her I won’t be in to see her for a while?

MURRAY: Sure.

CHALMERS: Like I don’t know what’s going on now.

MURRAY: Well

CHALMERS: Do I gotta be detained or …

MURRAY: Well, what I’d like … what I’d like to John is I’d like to come to some sort of understanding with you about this.

CHALMERS: Okay.

MURRAY: Because I don’t think you did this deliberately and you didn’t do it deliberately did you?

CHALMERS: No.

MURRAY: No. This was something that got out of control very quickly. Am I right?

CHALMERS: Right.

MURRAY: Okay, well … well listen, once … once that happened, what did you do? After it happened, what did you do?

CHALMERS: I … like I remember she got off the horse for a minute and I just started hittin her. That’s all that went on. [Emphasis added.]

37Mr. Campbell conceded during oral argument that the first portion of this exchange did not constitute a request for counsel and was not sufficient to trigger a police obligation to act in implementation of the appellant’s s. 10(b) rights. He acknowledges that the appellant’s Charter rights had not been violated to this point in the interview. However, he says they were violated immediately after the appellant first admits to hitting Ms. Chalmers because of the failure to re-caution him about his s. 10(b) right to counsel.

38While Mr. Campbell accepts that the foregoing admission might be admissible – since it preceded any alleged Charter violation – he submits that the further details of the crime provided to Det. Sgt. Murray, the letter of apology, the evidence arising out of the re-enactment at the scene, and the various statements made by the appellant to other police officers and relatives the following day, are not. They are all tainted by the failure to warn at this point in the interview.

39I do not agree. In my view, the trial judge did not err in concluding on this record that there was a sufficient factual connection between the prior s. 10(b) caution and subsequent reminders, on the one hand, and the appellant’s detention, the reasons for that detention and his jeopardy in relation to it, on the other.

40The appellant was properly advised of his Charter rights to counsel and to remain silent at the outset of the interview and reminded of his s. 10(b) rights more than once thereafter. The evidence is clear, as the trial judge found, that he understood both the full informational component of his right to counsel, and how to implement that right, at all times: see Bartle. He could have exercised that right at any time during the interview, but chose not to do so. The evidence is also clear that he understood from the outset that he was a suspect in a homicide case and that if he had caused Ms. Chalmers’ death he was in jeopardy of being charged with a homicide offence in that regard.

41While the appellant’s status may have shifted from a person who was being questioned as part of the investigation to a person who was being detained, at the point of his first admission, there was no magical change in his understanding of the position he was in, or of his rights and how to exercise them, or of his jeopardy. The fact that the appellant and Det. Sgt. Murray engaged in a discussion about ready access to a private call with a lawyer barely seconds before his admission is particularly telling. To repeat the observation of Gonthier J. in Schmautz, at p. 574:

Finding a Charter violation upon the sole fact that the warning was read before detention arose would be demonstrative of a legalistic and technical approach having little regard to the purpose of s. 10(b) …

42This is not a case like Amyot where the accused’s emotional disintegration rendered the statement involuntary and may have deprived him of his ability to appreciate the s. 10(b) caution and make an informed decision about retaining counsel. Here, the appellant remained composed and appeared to be in a controlled and stable emotional state throughout. Nor is it comparable to either Paternak or McIntosh, where it seems clear that the status of the accused and his jeopardy had changed significantly between the time of the original caution and the subsequent reminder. As noted above, there was no such change here. It is not apparent from the brief endorsement of Sopinka J. in Paternak, what facts the Supreme Court relied on in allowing the appeal; however, the appellant’s factum in the Supreme Court in that case appears to indicate that Mr. Paternak was initially interviewed as a witness and that he was never told he was a suspect prior to the point of his detention. I note that in R. v. Barton (1993), 1993 CanLII 14705 (ON CA), 81 C.C.C. (3d) 574, this Court upheld the admissibility of a statement where, like this appellant, Mr. Barton had been made aware from the outset of the polygraph interview that he was a suspect in the crime under investigation.

43Finally, while it is clear that the close factual connection relating the warning to the detention is all that is required to satisfy s. 10(b) where the warning is given before the detention, I note that the there was also a close temporal connection between the earlier warnings and the appellant’s detention. He was initially cautioned between around 12:56 and 1:10 p.m., and was reminded again of his rights at 3:51 P.M., after the polygraph test and only about half an hour before the first confession. The final conversation about consulting a lawyer, before the admission, occurred only moments before that happened. The appellant never left the same interview room and he never dealt with anyone other than Det. Sgt. Murray during this time.

44I would accordingly dismiss this ground of appeal. There is therefore no need to deal with the issue of whether the statements should have been excluded under s. 24(2) of the Charter.

IV. THE FAILURE TO LEAVE MANSLAUGHTER TO THE JURY

45The appellant argues that the trial judge erred by failing to leave the potential verdict of manslaughter to the jury, contending that he may have lacked the requisite intent for second degree murder. In my view, this ground of appeal must also be rejected.

(1) The impugned portion of the charge to the jury

46In the impugned portion of the charge to the jury – after a pre-charge conference and with the agreement of defence counsel – the trial judge said:

Again, the three elements are causation by an unlawful act with murderous intent. The question you are deciding is the first element, causation. Did Mr. Chalmers cause the death?

If you are satisfied that Mr. Chalmers caused Janie’s death, beyond a reasonable doubt, there would be no question of the two remaining elements, unlawfulness and murderous intent. Although there are three elements to murder, on this evidence, you need only decide the question of causation. On the fact situation of skull fractures and brain contusions, the decision turns on the issue of causation.

If you find, beyond a reasonable doubt, that Mr. Chalmers caused the skull fractures and brain contusions which caused the death, then you would also find the other two elements, namely the causing of the skull fractures was unlawful and done with the intention to cause death.

Those other two elements would flow naturally from your finding of causation.

This is so because there could be no lawful justification for causing skull fractures and brain contusions, and because a person is presumed to intend [the] natural consequences of his act, in deciding whether John Chalmers intended or meant to cause the death of Janie Chalmers, you are entitled, as a matter of common sense, to draw an inference that a sane and sober person intends the natural and probable consequences of his voluntary actions.

Death is the natural consequence of skull fractures and brain contusions. By focusing on the issue of causation, you are led to the following alternatives: If you are satisfied beyond a reasonable doubt that Mr. Chalmers did cause the skull fractures and brain contusions, then you must find him guilty of second degree murder.

If you are not satisfied beyond a reasonable doubt that Mr. Chalmers did cause the skull fractures and brain contusions, then you must find him not guilty of second degree murder.

47Underlying these instructions is the premise that – assuming the jury was satisfied the appellant caused his wife’s death – the elements of unlawfulness and murderous intent were made out because of the nature of the injuries sustained and the common sense inference that the appellant is presumed to have intended the natural and probable consequences of his acts. So framed, the charge unquestionably “took away” the issues of intent and manslaughter from the jury. The issue is whether the trial judge was justified in doing so in the circumstances.

(2) The Appellant’s Argument

48The appellant accepts that it was open to the jury – assuming it was satisfied he had caused Ms. Chalmers’ death – to conclude that he had the requisite intent for murder. However, he submits that it was not inevitable the jurors would unanimously reach this conclusion on the evidence. In this respect, he relies on a number of statements extracted in isolation from his lengthy inculpatory interview with Det. Sgt. Murray and from his various inculpatory statements to DC Devolder and others. Specifically, he points to his statements that:

(i) he went looking for his wife on Waterworks Road hoping they “could talk and see what was going on”;

(ii) “we got talking and I think we got arguing”;

(iii) his wife said or did something that caused him to “crack” and to begin hitting her with an object he found on the ground;

(iv) his assault on his wife was “just a blur” and “everything just happened so … ”; and

(v) he did not know whether Ms. Chalmers was dead or alive when he left the scene.

49The evidence to support this ground of appeal is all found in the appellant’s out-of-court statements because there is nothing in his testimony at trial – or in the other defence evidence – that would sustain an argument that he lacked the requisite intent for murder. His position at trial was unequivocal: if Ms. Chalmers’ death was not an accident, it was caused by someone else; he played no part in it. There is no indication that alcohol or drugs played any role in the incident.² There is nothing to suggest provocation within the meaning of s. 232(2) of the Criminal Code. Indeed, the appellant confirmed in cross-examination that he never said Ms. Chalmers had done anything to cause him to hit her or that she had said or done anything that would have provoked the kind of reaction that he had admitted occurred. Even when his attention was drawn to those excerpts in his statements containing the references upon which he now relies, the appellant made no comment on them and no attempt to suggest that his conduct was driven by blind rage or anger of the sort that may have affected his consciousness of the consequences of the actions attributed to him.

50Nonetheless, based on the foregoing evidence, the appellant says the jury might have had a reasonable doubt as to whether he had the necessary intent to commit murder, that is, whether he meant to cause his wife’s death or meant to cause her bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. As appellant’s counsel put it in their factum, the jurors might have had “a reasonable doubt as to whether the appellant had subjectively adverted to the effect of his actions;” they were “not required to reject the exculpatory aspects of the appellant’s statements and draw the ‘common sense inference’ of subjective awareness” (emphasis in original).

(3) Analysis: No Reversible Error in Jury Charge regarding the Mens Rea for Murder

51Some older jurisprudence suggests that manslaughter, based on the Crown’s failure to prove the requisite intent for murder beyond a reasonable doubt, must always be left to the jury in murder cases: see, for example, R. v. Wright (1979), 1979 ALTASCAD 187, 48 C.C.C. (2d) 334 (Alta. C.A.), at pp. 339-343, leave to appeal refused. Current authority confirms, however, that manslaughter should only be left as a possible verdict where that verdict has an “air of reality”: R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482, at p. 484. Where there is an “air of reality”, it may be necessary to leave manslaughter to the jury as a possible verdict, even where the defence has objected to that possibility being put to the jury: see e.g. R. v. Murray (1995), 1994 CanLII 1692 (ON CA), 20 O.R. (3d) 156 (C.A.). At the same time, however, an accused has a constitutional right, albeit not an unlimited one, to control his or her own defence. This right has recently been re-affirmed by this Court – along with its corresponding consequence of not being able to paddle downstream on appeal when one has paddled vigorously upstream at trial – in R. v. MacDonald (2009), 2008 ONCA 572, 92 O.R. (3d) 180 (C.A.).

52Consequently, the appellant’s submission must be assessed in light of both the strength of the evidence relied on – it is present in isolated snippets – and the concessions made and position taken by the defence.

53The appellant conceded the issue of intent at trial. Experienced defence counsel approved the specific instruction given by the trial judge and agreed that there were only two verdicts available (guilty or not guilty). In his closing remarks to the jury, in his submissions to the trial judge during the pre-charge conference, and in the written Counsel Input to the Charge, defence counsel took the position that this was a “1 issue case” with respect to the elements of murder: did John Chalmers cause Jane Chalmers’ death? That is, if the jury rejected the riding-accident scenario and the alternative defence theory of a phantom killer, the only remaining issue was whether the appellant was the person who “murdered” Ms. Chalmers. This was confirmed by defence counsel’s approval in advance the charge as delivered and by his failure to object to the charge following its delivery.

54The following exchange took place between defence counsel and the trial judge during the pre-charge conference:

THE COURT: There [are] three parts to a murder, causation, unlawfulness and mental ingredient. The way I instructed the jury in the precedent you have of McKenzie, I told them that the decision turned on causation.

DEFENCE COUNSEL: Yeah. That’s the one I applied Your Honour in terms of precedent.

THE COURT: And if they find that Mr. Chalmers caused death then the two following questions follow automatically. That is the way I would intend to instruct them so not to get them confused.

DEFENCE COUNSEL: Yes.

THE COURT: Are you happy with that?

DEFENCE COUNSEL: Yes.

55The result was the excerpt from the charge to the jury cited above.

56On appeal, the appellant adopts the contrary stance, albeit acknowledging that trial counsel may have had good reasons for taking the position he took – it was conceded that, since the defence position was that the appellant did not kill his wife and that his statements to the police were false, trial counsel may have thought that leaving manslaughter and intent to the jury would undermine the appellant’s main defence. Nonetheless, Mr. Campbell submits that the trial judge had a duty to instruct the jury on all defences that could arise from the evidence – whether the appellant wanted him to do so or not – and therefore that the trial judge’s failure to instruct the jury on the issues of intent and manslaughter cannot be justified.

57I do not agree, for a number of reasons.

Marginal Air of Reality

58First, the argument is only as strong as the air of reality relating to the defence sought to be raised. I accept that the threshold for meeting the air of reality test may not be high, given the Crown’s overall onus to establish guilt beyond a reasonable doubt. I also accept that some of the factors outlined above on which the appellant now relies – was there an argument during which Ms. Chalmers said or did something that caused the appellant “to crack” and to assault her in what was just a “blur”? – might skim over the bar of the air of reality test, if considered in isolation, and might suffice to support leaving manslaughter to the jury, particularly in the face of a defence request to do so or even, perhaps, in the absence of such a request. I do not accept that they have that effect here, however, given the generally unconvincing and unsupported nature of the facts relied on, the focus of the trial, and the way in which the case was put to the jury at the behest of the defence. The position taken by the appellant is a telling indicator of the defence view of the air of reality of manslaughter in the crucible of this trial.

Accused’s Right to Control Own Defence

59Moreover, an accused has a constitutional right, albeit not an unlimited one, to control his or her own defence, and the trial judge’s instructions corresponded precisely with the way the defence sought to have its position framed to the jury. The appellant was represented by experienced and competent counsel at trial, and no allegation of ineffective assistance of counsel is raised on appeal.

60The tension between an accused’s constitutional right to control his or her defence and the trial judge’s obligation to instruct the jury on defences that reasonably arise on the evidence has arisen in a number of cases. A good example is this Court’s decision in R. v. Murray. In that case, defence counsel specifically told the trial judge at the pre-charge conference that he did not seek and did not want a charge on intoxication. The trial judge acceded to defence counsel’s request and did not instruct the jury on intoxication, even though there was a basis on the evidence for arguing that the accused’s ability to form the necessary intent for murder may have been affected by his drinking. The appeal was allowed. Osborne J.A. said this, at p. 170:

There is no doubt that the appellant had the right to control his defence. This right is not, however, absolute. This was made clear in R. v. Swain. I am, however, reluctant to look at defence counsel’s tactical trial decisions through the rear view mirror of appellate review and in doing so second guess the appellant’s trial counsel, unless there are compelling reasons to do so. [Citation omitted.]

61Osborne J.A. was persuaded there were compelling reasons to interfere in the circumstances of that case, however. The evidence of the accused’s drinking could have had an impact on the jury’s determination on the issue of murderous intent. In arriving at his conclusion, Osborne J.A. was strongly influenced by the following remarks of Krever J.A. in a concurring opinion in R. v. Lomage (1991), 1991 CanLII 7228 (ON CA), 2 O.R. (3d) 621 (C.A.), at p. 632:

I do not want to be understood as having the view that in a criminal case, to say nothing of a first degree murder case, in which the liberty of the subject is at stake, the adversary system operates in its pure form. Just as the role of Crown counsel is not that of a pure adversary, so is the role of the judge modified. The judge in a criminal case assumes a greater responsibility to see that justice prevails than that in the pure adversary system controlled by the performance of the opposing parties. Thus, for example, in a criminal case tried by a jury, the judge is obligated to instruct the jury with respect to defences that reasonably arise out of the evidence notwithstanding the defence advanced by counsel and, indeed, even over the objection of defence counsel. [Emphasis added.]

62In MacDonald, however, this Court has reinforced the accused’s right to control his or her defence and to concede an essential element of the offence or admit criminal liability for an included offence without a formal guilty plea. There, the accused had openly acknowledged at trial that he had unlawfully caused the victim’s death and that he was guilty of manslaughter, and had presented his defence on that basis. With defence counsel’s concurrence, the trial judge directed the jury that there were only two possible verdicts: guilty of second degree murder and guilty of manslaughter. On appeal, the argument shifted. The accused submitted that he had been denied his constitutional right to a verdict by the jury. Doherty J.A. upheld the trial judge, concluding that an accused has a constitutional right to control his own defence and to choose to remove an acquittal from the list of possible verdicts if so advised.³ At paras. 35-36 he said:

Fundamental justice requires that the appellant be allowed, in the conduct of his defence, to acknowledge his culpability for manslaughter and leave the jury with the question of whether he was guilty of manslaughter or murder. In the exercise of his right to control his own defence, the appellant chose to remove an acquittal from the list of possible verdicts. He had a constitutional right to do so.

The trial judge’s instructions with respect to the possible verdicts were tailored and responsive to the appellant’s position throughout the trial. She vetted the proposed verdicts with counsel to be sure that they reflected the decision that the appellant wanted the jury to make. The trial judge’s instructions as to the possible verdicts – guilty of murder or guilty of manslaughter – did not deny the appellant a verdict by the jury he had chosen; instead, her instructions framed the question for the jury in exactly the way the appellant wanted it framed. In the circumstances, the instruction that precluded an acquittal respected both the appellant’s constitutional right to a trial by jury and his right to control his own defence. [Emphasis added.]

63Here, the issue is not the removal of an acquittal from the jury’s consideration but rather the removal of an element of the offence conceded by the appellant and the potential reduction of murder to manslaughter. However, if it is permissible to withdraw an acquittal by tailoring the jury instructions to reflect the way the defence wishes the question to be framed for the jury, it must equally be permissible, in appropriate circumstances, to withdraw manslaughter as well. That is what happened in this case.

No Substantial Wrong or Miscarriage of Justice

64Finally, even if it could be said that there was a sufficient air of reality to the verdict of manslaughter to require it to be put to the jury, in spite of the position taken by the appellant at trial, this is a case where the appeal on this ground should be dismissed on proviso grounds under s. 686(1)(b)(iii) of the Criminal Code. There was no substantial wrong or miscarriage of justice in the circumstances.

65Mr. Campbell concedes the defence position taken at trial was reasonable. The appellant’s position was that he did not kill his wife and that his statements to the police to that effect were false. Indeed, the appellant’s position was that, if the death was not an accident, someone else had murdered Ms. Chalmers and dumped her body at the side of the road. Manslaughter, based on his lack of specific intent, was inconsistent with – and might unnecessarily complicate – this stance.

66As noted, some of the facts relied on by the appellant may just skim the bar of the air of reality test when considered in isolation. But when scrutinized in the context of the evidence as a whole, and particularly when viewed through the prism of the defence position at trial, the air of reality to manslaughter is marginal at best. The defence conceded the issue of intent. The sound tactical reasons for doing so were no doubt buttressed by the nature of the injuries sustained by Ms. Chalmers and by the lack of any medical or other persuasive evidence to the effect that the appellant was not acting consciously and voluntarily.

67That being the case – if the jury accepted that it was the appellant who caused the death – it is difficult to conceive of a scenario where he did so without the requisite intent for murder. The evidence was that Ms. Chalmers suffered five skull fractures from blows administered by a long pipe-like instrument. Such an instrument was found by the police in the field adjoining the crime scene, more or less where the appellant told them he had thrown the object he used.

68I would not give effect to this ground of appeal.

V. THE PROPOSED FRESH EVIDENCE

69The appellant seeks to introduce fresh evidence on the appeal in the form of a report by Dr. Laurence Holt. I would dismiss the motion. In my opinion, even if it had been tendered at trial, the evidence would not meet the test for the admission of expert evidence as articulated by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, and R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, and refined in relation to “novel science” in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, and R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. In any event, the proposed fresh evidence does not comply with the requirements for the admission of fresh evidence on appeal as laid down in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.

(1) The Proposed Fresh Evidence: Dr. Holt’s Accident Theory

70As noted at the outset, Dr. Holt is a professor emeritus in kinesiology at Dalhousie University. He prepared a report entitled “A kinesiological/biomechanical analysis of the events leading to the death of Jane Chalmers”. The appellant seeks to qualify him as a kinesiologist “capable of giving expert opinion evidence about movement of horses and people” and “about the mechanisms of how a person might fall off a horse and sustain injuries by striking the ground.”

71Dr. Holt has a Ph.D. in education. He has spent his career teaching and studying in the area of human kinesiology – “The field of study concerned with the mechanics of (human) bodily movement” (The Oxford English Dictionary, 2d ed., s.v. “kinesiology”). His particular area of expertise is in the biomechanics of human sport and exercise activities. His professed expertise in relation to this case comes from a combination of his knowledge of kinesiology, and the fact that his wife is (or was) an equestrian and he has observed and videotaped the movements of her quarter horses over a number of years.

72Dr. Holt was retained to opine on whether it was possible for Ms. Chalmers to have sustained her fatal injuries through an accidental fall from her horse. He examined photographs, along with other existing evidence relating to the incident to reconstruct a possible accident based upon what he refers to as the “emerging field” of forensic kinesiology.

73Dr. Holt’s theory that Jane Chalmers’ death could have been accidental can be summarized as follows. Dr. Holt suggests that Ms. Chalmers was riding on Waterworks Road when her horse suddenly spooked and engaged in a sharp counter-clockwise turning motion, much like a quarter horse in a “barrel racing turn”, in order to avoid some unknown threatening situation. Not anticipating this abrupt stop and spinning movement, Ms. Chalmers began to fall from her horse, but her right foot slipped forward through the stirrup and got caught. Because her foot was trapped, the horse’s rotary movements were transferred to Ms. Chalmers body, causing her body to be swung in an arc, and causing her head to strike the ground multiple times in a circular path, before her foot came loose and her body slid into the ditch.

74This theory explained what Dr. Holt identified from a photograph of the scene as hoof prints showing a tight turn, as well as the pattern of various blood stains on Waterworks Road, and the five linear fractures on Ms. Chalmers’ skull – on Dr. Holt’s analysis her head only struck the ground four times, but he hypothesized that the first blow caused a double fracture. Although the evidence of the pathologist at trial was that the linear skull fractures were most likely caused by a linear object, Dr. Holt explained the linear fractures as follows: “The reason for linear rather than depressed fractures was due to the materials that made up the road. It was a mixture of dirt, sand, gravel and small rocks that together constituted a ‘softer’ striking surface than either asphalt or compressed rocks.”

75At trial, the Crown led evidence designed to show that death as a result of a riding accident was unlikely. Two pathologists, a forensic anthropologist, and a veterinary school professor who was also an equestrian, testified in that regard. They regarded an accident scenario as unlikely because Ms. Chalmers’ injuries were inconsistent with that typically expected in a horse riding accident. The injuries sustained were inconsistent with Ms. Chalmers having been kicked in the head by the horse, as the lacerations were not hoof-shaped, and her injuries were to both sides of the head. If Ms. Chalmers had simply fallen off the horse, without being kicked, she would have hit her head only once, probably on the back of the head. Had she fallen with one foot caught in a stirrup, typically she would have fallen on her hands, arms or back, striking the back or possibly one side of the head, which again fails to explain the skull fractures on both sides of the head. In addition, a blood spatter expert testified that the blood stains shown in the photographs of the road were not the result of Ms. Chalmers’ head hitting the ground in successive split second contacts. Rather, those stains were caused by passive bleeding – blood droplets repeatedly falling from a source directly above, but not touching, the area for seconds, and possibly minutes.

76Dr. Holt does not dispute the theory that Ms. Chalmers’ injuries were not caused by horse kicks. However, he claims that horse kicks are not the only way that multiple skull fractures might have occurred in a riding accident, advancing the alternative construction outlined above.

(2) The Failure to Satisfy the Test for Admission of Expert Evidence

77As I have stated, the proposed fresh evidence does not satisfy the test for admission of expert evidence.

78The essential criteria for the admissibility of expert evidence, as articulated in Mohan, are: (i) relevance; (ii) necessity in assisting the trier of fact; (ii) the absence of an exclusionary rule; and (iv) a properly qualified expert. In my view, Dr. Holt is not a properly qualified expert. In addition, the innovative scientific theory and technique he advances cannot survive the “special scrutiny” that authorities such as Mohan, J.-L.J., and Trochym require of novel science in order to ensure its reliability.

Inability to Survive “Special Scrutiny” for Novel Science

79Whatever special knowledge and skill Dr. Holt brings to the proposed fresh evidence can fairly be said to be based upon a novel scientific theory or technique. At present there is no such thing as “forensic kinesiology” as a recognized sub-discipline of kinesiology. Dr. Holt candidly acknowledges this. He hopes it will become a recognized discipline some day, and has co-authored an article that has recently been accepted for publication in an American medical journal making the case for such a development.⁴ In addition, Dr. Holt’s knowledge – such as it is – with respect to equine movement and the actions of humans falling off of horses is based solely on his practical experience gained over 25 years ago in the course of filming his wife’s riding activities, together with the fact that he and his wife have stabled her horse for many years. He has done no formal studies. He has no accreditation. He has never taken or taught a course in equestrian anatomy, equestrian physiology, or equestrian behaviour, and does not claim to be an expert in equestrian behaviour.

80Expert testimony based on novel scientific techniques or theories is not inadmissible in Canada for that reason alone. However, the court has an important gatekeeper function to perform. As Sopinka J. said in Mohan, at p. 25, “expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert”.

81In J.-L.J., Binnie J. framed the entry level criteria for the admissibility of novel science evidence in terms of a “reliable foundation” test.⁵ He concluded the following factors would be helpful in evaluating the reliability of novel science:

(1) whether the theory or technique can be or has been tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the known or potential rate of error or the existence of standards; and,

(4) whether the theory or technique has been generally accepted.

82The reliable foundation approach to the admissibility of novel science evidence, and the factors to be assessed, were recently re-confirmed by the Supreme Court of Canada in Trochym.

83In my view, the theories and techniques underpinning Dr. Holt’s “kinesiological/biomechanical analysis of the events leading to the death of Jane Chalmers” respond to none of these factors. They have not been tested or – as yet, at any rate – subjected to peer review and publication. There are no known standards against which to measure the analysis. The theory and techniques cannot be said to be generally accepted. Indeed, in the only known case where Dr. Holt has testified and there has been a verdict – a baby shaking syndrome case, not an equestrian accident case – the court was critical of his testimony and rejected it: see R. v. Stewart (2002), 2002 NSSC 290, 212 N.S.R. (2d) 250 (S.C.), aff’d (2003), 2003 NSCA 150, 221 N.S.R. (2d) 205 (C.A.).

84The proposed fresh evidence is off to a shaky start on this basis alone, in my opinion. Dr. Holt’s qualifications as an “expert” for the purposes for which it is sought to tender his evidence – the movement of horses and people and the mechanisms of how a person might fall off a horse and sustain injuries by striking the ground – do not advance the cause.

Lack of Special Expertise in Equestrian Matters

85I do not question Dr. Holt’s expertise in his lifetime area of teaching and study: human kinesiology. His particular area of expertise, he concedes, is in the biomechanics of human sport and exercise activities. But, apart from his practical experience with his wife’s horses, and the exercise of filming her riding activities, he has no accreditation or research-based knowledge in equestrian matters. No studies. No courses taught or taken with respect to equestrian anatomy or behaviour. He acknowledges that he is not an expert in horse-riding safety (although his report contains opinions that would require such expertise). He acknowledges that he is not a blood spatter expert (although critical to his theory is his interpretation of the blood stains, and the positioning of the blood stains, seen in the crime scene photographs). He acknowledges that he has no medical training (although his report makes assumptions that could only be based on such knowledge). I would have considerable concerns about qualifying Dr. Holt to give “expert” evidence about the mechanisms of how a person might fall off a horse and sustain injuries by striking the ground.

(3) The Failure to Satisfy the Test for Admission of Fresh Evidence

86The foregoing would be sufficient to dispose of the fresh evidence application. Apart from my concerns over the admissibility of the proposed evidence as expert evidence, however, I am satisfied as well that the fresh evidence does not meet the Palmer test. That four-part test states that fresh evidence:

(1) should generally not be admitted if, by due diligence, it could have been adduced at trial (provided that this general principle will not be applied as strictly in a criminal case as in civil cases);

(2) must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) must be credible in the sense that it is reasonably capable of belief; and,

(4) must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

87Here, the proposed fresh evidence runs afoul of at least the first, third and fourth criteria.

Lack of Due Diligence

88“Due diligence” is admittedly not as compelling a factor in criminal cases as it is in civil cases. As Major J. noted in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 19 and 20, “[it] is not an essential requirement of the fresh evidence test, particularly in criminal cases”, and appellate courts “should determine the reason why the evidence was not available at trial.” Here, however, Dr. Holt’s proposed evidence could readily have been made available at trial and there is no persuasive reason provided on the record as to why it was not if, indeed, it is as important to the appellant’s case as he now submits.

89Although the Crown made no attempt to prove that a riding accident causing Ms. Chalmers’ death was physically impossible, the Crown did argue that such an event was unlikely, and the issue was very much in play at trial. Dr. Brooks, an expert consulted by the Crown two years prior to trial, speculated about a stirrup-related accident and his letter containing that suggestion was disclosed to the defence in a timely fashion. The defence’s own expert, Dr. Ben-Aron, a psychiatrist consulted in relation to the voluntariness and reliability of the appellant’s confessions, also raised the possibility of a spooking-related accident. The defence made no attempt to lead any expert evidence to this effect.

90Indeed, whatever explanation can be gleaned from the record for the defence not calling such evidence would seem to suggest that the defence made a calculated decision not to pursue the strategy of attempting to raise a reasonable doubt on the basis of a death-by-riding-accident theory. Rather, it virtually conceded that there had not been an accident. In closing to the jury, defence counsel said:

Now, one of the elements that has to be proven beyond a reasonable doubt … is that Jane Chalmers was murdered … And His Honour is going to give you some direction as it relates to experts, but I don’t think you should be swept off your feet by what they say. And in this particular case [Dr. Houpt, the veterinarian expert] says it was probably not the horse, and the horse is unlikely to have caused the death of Jane Chalmers. You have to determine whether or not that’s proof beyond a reasonable doubt. We have Dr. Spence and Dr. Shkrum once again saying that’s unlikely. Whether or not that constitutes proof beyond a reasonable doubt, I don’t know.

91Instead, the defence adopted what the Crown called the “phantom killer” approach. In closing submissions, defence counsel advanced the theory that the jury “could very easily find that Jane Chalmers was not killed where she was found” and suggested that Don and Kay Moore may have been involved since they may or may not have “continued to be suspects at the time [the appellant] gave what he construes to be his false confession” and since there may have been a love-triangle related motive. Defence counsel noted that “the Moore’s had a horse trailer. So, you wouldn’t have to speculate … beyond that as it relates to transport.” The alternate suspect homicide theory had the advantage of being consistent with the testimony of the Crown’s blood spatter expert regarding the blood stains at the scene. For Dr. Holt’s theory of accident to work, however, a completely different and inconsistent interpretation of those blood stains is required.

92In short, defence counsel had good reason for not pursuing the riding-accident theory vigorously. I pause to note again that there is no attack launched on this appeal based on the ineffective assistance of counsel. In these circumstances, I do not think this is a case where the due diligence requirement of Palmer can be ignored.

The proposed fresh evidence is neither reasonably capable of belief, nor can it reasonably be expected to have affected the result

93Finally, there are significant frailties in the proposed fresh evidence itself. In my opinion, it is simply not sufficiently reliable to meet the Palmer criteria of being reasonably capable of belief, nor can it be reasonably expected to have affected the result at trial. Without engaging in an exhaustive analysis of the weaknesses, the following, in particular, come to mind.

(i) The “one of a kind” nature of the theorized accident

94First, Dr. Holt acknowledges that, in his accident reconstruction methodology, it is not possible to duplicate the suggested scenario because such incidents are “one of a kind events” and because it is “virtually impossible to repeat [the] movements” taking place at the time of the incident. In Dr. Holt’s view, it was not possible to film a re-creation of the imagined incident using scale models. Accordingly, it was not possible to test or verify the way in which it is suggested the accident occurred. He acknowledges that, in terms of the statistics on equestrian-related injuries, it is “virtually impossible to correlate observed injuries with mechanism of injury on a substantive basis.” Consequently, “it is impossible to go back and reconstruct and get accurate data [on riding accident events]”.

(ii) Conclusions based on speculation

95Second, it appears to me that Dr. Holt’s most important conclusion – that his accidental death scenario represents the most reasonable explanation of the events leading to Ms. Chalmers’ death – is founded more on assumption and speculation than on scientific theory, verifiable technique, or the evidence. Indeed, Dr. Holt acknowledges that his report incorporates a lot of “interpretation” and even some speculation.

96The portion of Dr. Holt’s report setting out his accident scenario begins by indentifying four specific markings shown in photographs of the road taken at the time as “hoof prints” and not only as hoof prints, but as hoof prints demonstrating a sharp pivoting counter-clockwise manoeuvre by the horse. Based on those assumptions, and his assumption that Ms. Chalmers did not have the motor coordination or agility to ride this horse, he then concludes that the blood stains depicted in photographs of the road were the result of Ms. Chalmers’ head striking the ground when she fell from the pivoting horse, caught her foot in the stirrup and was swung in a semi-circular fashion until her foot came free of the stirrup, at which point the impact of centrifugal force ceased and she rolled straight into the ditch.

97The Appendices attached to these reasons help illustrate his hypothesis. Appendix A is a drawing appended to Dr. Holt’s report depicting a human body in various positions and representing Dr. Holt’s theory of where Ms. Chalmers’ body struck the ground and ended up. It is to be compared with Appendix B, which is a mocked-up version of a photo taken at the crime scene and showing a series of blood stains on the road. The black and red markings on Appendix B were drawn over the photo by Dr. Holt during cross-examination to demonstrate his view of the trajectory of the victim’s head and the points of impact on the ground. Appendix C is a photograph of the road showing what Dr. Holt identifies as the four pivotal hoof prints, which are circled in red ink.

98Dr. Holt summarized his theory in this regard in cross-examination as follows:

May I add that those [i.e. the hoof prints circled in red on Appendix C], in my opinion, are the initiating prints that the horse made when he initiated this movement. And I think they are the deepest and they appear to me to be facing forward and to the right. In other words, they’re angled forward and to the right and the depression gives me the indication that they initiated a turn to the left. That is what I read from those prints.

I’m saying that the pattern of movement will not be in a straight line. She was not, in my view, going from point A in a straight line to point B and then reversing her direction or changing her direction and going in a straight line to C. My point is that she is thrown into a path, a curved path. And as the horse turns, that predicts what or determines the curvature. And she then strikes down in that curved path until she releases from the hose and there’s no centrifugal force anymore. Then she goes off in more of the last portion of your diagram in a straight manner to the final circle that you’ve drawn [i.e., point D].

99The problem is there is no way to verify this theory, and it does not appear to be very firmly founded on the record.

(iii) “Hoof prints” indicating a “counter-clockwise” movement?

100If the horse did not spook and do a sharp counter-clockwise pivoting manoeuvre, Dr. Holt’s accident scenario is not possible. No one at trial, including the Crown’s expert on animal behaviour, drew the inference that the four markings identified on Appendix C were hoof prints evidencing a turning movement by a horse, much less a counter-clockwise turning movement. Dr. Holt was confident, however – based not on any academic expertise but rather on “whatever information a person like [himself] can gather in and around horses for 30 years, as a professional kinesiologist” – that his intuition enabled him to do so. There is, he agrees, no scientifically recognized method for interpreting apparent disturbances of soil in a photograph and then reliably deducing what caused the disturbance. He has no academic or other qualifications for providing “hoof print” opinion evidence. Nor has he – or anyone else that he is aware of – ever been qualified by a court to interpret soil disturbances from viewing photographs.

101It is of some weight that, while several witnesses at trial testified they saw hoof prints on the road in the general area of where the body was found, none identified the four markings isolated on Appendix C as hoof prints. Dennis Spitzig, an experienced horseman himself, described the markings around the blood stains as “scuffle” marks. Indeed, defence counsel himself described the markings as footprints in an attempt to bolster the theory of the phantom killers.

(iv) Head bouncing on the roadway?

102If Ms. Chalmers’ head did not strike the roadway four times in the areas marked “A”, “B” and “C” on the photo, Appendix B, Dr. Holt’s accident scenario would not be possible. Mr. McNeely argues on behalf of the Crown that there are several factors making such a scenario highly unlikely. For one thing, one of the Crown’s experts gave evidence at trial explaining that a rider whose foot is caught in a stirrup would likely fall on her hands, arm or back, striking the back of the head, or possibly one side of the head, but Ms. Chalmers suffered injuries to both sides of the head. More tellingly, Dr. Holt acknowledged that he is not a blood spatter expert, and ultimately conceded as well that “[his] scenario would not be consistent with [the Crown’s blood spatter expert] in terms of the way in which the blood was deposited.” The Crown’s blood spatter expert testified that the blood stains shown in the photographs at points “A” and “B” were passive stains. Passive stains result from blood droplets that fall by the force of gravity alone straight into the ground, leaving a somewhat circular pattern. They are indicative of a blood source resting directly above – but not touching – the stain for at least a few seconds.

103Finally, in relation to Dr. Holt’s head-bouncing-on-the-roadway scenario, I observe that Dr. Holt could not, or did not, attempt to confirm whether it was even possible for a horse pivoting at the location of the four “hoof prints” he identified to have swung a 5’2” woman in a way that her bleeding head would have contacted the ground in the curved fashion coinciding with the location of the blood stains shown in the photos. He admitted he could not tell exactly where Ms. Chalmers was when she came off the horse, or where exactly her head would have been, or what her position would have been, at any given point in time.

104Dr. Holt was asked whether he could not have worked backward from where he says Ms. Chalmers’ head hit the ground and tried to come up with a range of locations where the horse would have had to have been. His answer was as follows:

No, the horse had to be pivoting in a relatively close proximity to where that action was taking place.

I found that a difficult thing to do. I thought about it. And I just could not come up with a way of identifying when the horse moved, when she moved, when the horse moved the second time, where she was when the horse moved. This was a very difficult thing to visualize.

105But the horse only had to be pivoting in relatively close proximity to where the action was taking place if one accepts the suggested riding accident scenario in the first place. Whether a woman of Ms. Chalmers’ height could have been swung from a horse pivoting where the hoof prints were said to be located in a way that could lead to her head striking the ground at the blood stained locations was critical to Dr. Holt’s entire theory. Based on little more than his belief that a horse turned suddenly – like a barrel-racing quarter horse might turn – in an area somewhere near the blood stains, and therefore that Ms. Chalmers might have slipped from the horse, and that her foot might have slipped through the stirrup, and that her head might have been swung in an arc that would cause it (maybe) to strike the gravel road at the point of those blood stains, the theory is speculative at best. It is based on assumptions that do not seem to have any scientific or technical basis to support them.

(4) Fresh Evidence: Conclusion

106In conclusion, the proposed fresh evidence does not rest on any recognized and verifiable scientific theory or technique that would provide a reliable foundation for its admissibility as expert evidence. Dr. Holt is not qualified to give expert testimony in the area in which the appellant seeks to have him do so, namely, as an expert kinesiologist “capable of giving expert opinion evidence about the movement of horses and people” and “the mechanisms of how a person might fall off a horse and sustain injuries by striking the ground.” In the end, the proposed evidence is simply too frail and inconsistent with the proof at trial, to meet either the test for the admission of expert evidence under Mohan and Trochym, or the Palmer test for the admission of fresh evidence on appeal.

107I would dismiss the fresh evidence application.

VI. SENTENCE APPEAL

108Finally, the appellant seeks leave to appeal and, if leave is granted, appeals from the imposition of a period of parole ineligibility of 14 years. He argues in favour of a period of 12 years, the bottom end of the 12-15 year range suggested by this Court as the appropriate range for brutal second-degree spousal murders: see R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263 (C.A.). The Crown had asked for a period of parole ineligibility of 15-17 years.

109On this issue, the appellant submits that the trial judge erred in principle and in his appreciation of the evidence in two respects.

(1) Alleged Misapprehension of the Evidence

110The appellant argues, first, that the trial judge misapprehended the evidence in concluding that he returned to the side road intending to kill his wife and “commenced hitting her immediately upon her dismounting from the horse” with a weapon he had brought to the scene, and erred in treating these as aggravating factors. I do not agree. While the appellant did maintain that he did not return to Waterworks Road with that intent and that he did not have a weapon with him, there was ample evidence elsewhere in his inculpatory statements to justify the findings the trial judge obviously accepted in this regard. They were, indeed, aggravating factors for these purposes.

(2) Alleged Errors in Principle

111Second, the appellant contends that the trial judge’s reasons for imposing a sentence at the upper end of the McKnight range disclose several errors in principle. These included: (i) treating as aggravating the fact that the appellant had remained at liberty for 15 years because the police had been led to conclude Ms. Chalmers’ death was an accident; (ii) treating as aggravating the withdrawal of his confession and lack of remorse; and (iii) failing to give proper weight to the recommendation of the jury. Again, I would not give effect to these arguments.

Delay in Apprehension of the Appellant

112The trial judge considered the 15-year hiatus in the context of his assessment of the deterrence principle and, in particular, of the need to deter husbands “from taking advantage of circumstances in which they can kill their wives and let it look like an accident.” He was troubled about what to do with this factor, but in the end concluded that “it [was] appropriate to consider the smoke-screen, so to speak, under which Mr. Chalmers committed his crime as an aggravating factor.” At the same time, however, he gave it very little weight “because it [remained] possible that it was pure happenstance … that Mr. Chalmers committed his crime at a location and in circumstances which led to the horse being implicated.”

Withdraw of Confession and Lack of Remorse

113The trial judge did focus to some extent on the appellant’s withdrawal of both his admissions and his show of remorse. Generally, lack of remorse may not be treated as an aggravating factor for purposes of sentencing. In R. v. Valentini (1998), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at para. 82, for example, Rosenberg J.A. said:

In my view, a court must be very careful in treating lack of remorse as an aggravating circumstance. A sincere expression of remorse can be an important mitigating factor and can reduce the sentence that might otherwise be imposed. Lack of remorse is not, ordinarily, an aggravating circumstance. It should only be considered aggravating in very unusual circumstances such as where the accused’s attitude toward the crime demonstrates a substantial likelihood of future dangerousness. Even then the trial judge must be careful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence. [Emphasis added.]

114This case may be considered to be one of those “very unusual circumstances”, in my view. As I read his reasons, the trial judge did not treat the withdrawal of the appellant’s show of remorse as an aggravating factor in relation to the appellant himself or seek to punish him for asserting his innocence. Rather, the trial judge regarded these factors in the context of the further offence they created for Ms. Chalmers’ family. The appellant had recanted what the trial judge saw as his real expression of the truth in his letter of apology to Ms. Chalmers’ mother. Because there was no continuing confession and guilty plea, the body had to be exhumed, subjected to a further autopsy, and re-buried. All of these components of the murder scenario brought further anguish and pain to the victim’s family. I do not think the trial judge was precluded from considering them in the fashion he did for purposes of sentencing.

Treatment of the Jury’s Recommendation

115Nor am I persuaded that the trial judge failed to give proper weight to the jury’s recommendation. Two jurors made no recommendation. Ten recommended that the period of parole ineligibility be left at the minimum 10 years. Jury recommendations, however, are just that: recommendations. They are not particularly well-informed, are generally made without any appreciation of the wider sentencing context, and need not be slavishly followed: see e.g. McKnight, at p. 278 (per Laskin J.A.), citing Watt J. with approval in R. v. Barry, [1991] O.J. No. 2666 (Gen. Div.), aff’d [1993] O.J. No. 3955 (C.A.). Here, the trial judge “carefully considered” the jury recommendations and noted they had a “significant impact” on his decision. He ultimately concluded, however – rightly so, in my view – that the appropriate period of parole ineligibility lay in the high to mid range suggested by this Court in McKnight.

116Sentencing is a very fact-sensitive process and one with respect to which appellate courts afford considerable deference. The trial judge considered all of the relevant principles of sentencing, generally, and the four criteria articulated by Parliament in s. 745.4 of the Criminal Code relating to parole ineligibility, in particular. His reasons demonstrate no misapprehension of the evidence or error in principle, in my opinion, and the 14-year period of parole ineligibility he imposed is well within the appropriate range for crimes of this nature. I would not interfere with the sentence.

DISPOSITION

117For the foregoing reasons, I would dismiss the appeal as to conviction and, while I would grant leave to appeal sentence, I would dismiss the sentence appeal as well.

Footnotes

1. 1I have edited out some of the repetitive passages and excess verbiage.
2. 2The appellant is a non-drinker.
3. 3In this respect he distinguished R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501, where the trial judge had refused to put the defence of necessity to the jury on no air of reality grounds. Without that defence, the Crown’s case was overwhelming. The accused declined to plead guilty, however, and the trial judge directed the jurors that they could not acquit. Doherty J.A. took the principle from Krieger to be that an accused’s right to a trial by jury forecloses judicial exclusion of the possibility of an acquittal based on the trial judge’s assessment of the case at the end of the evidence: MacDonald, para. 29. That was not the case in MacDonald, nor is it the case here.
4. 4“Forensic Kinesiology: Foundations of an Interdiscipline for Accident/Crime Investigations”, accepted in March 2008, for publication in the American Journal of Forensic Medicine and Pathology.
5. 5In this respect he drew upon the leading American authority of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).