DATE: 20050912
DOCKET: C37895
COURT OF APPEAL FOR ONTARIO
DOHERTY, WEILER and GOUDGE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
P.T.
Appellant
Patrick F.D. McCann for the appellant
Carol Brewer and Shawn Porter for the respondent
Heard: May 19, 2005
On appeal from the conviction entered by Justice Robert J. Cusson of the Superior Court of Justice on February 23, 2001 and from the sentence imposed on May 7, 2001.
DOHERTY J.A.:
I
Overview
[1] The appellant was convicted of the second degree murder of his wife by a judge sitting without a jury. He was sentenced to life imprisonment without parole eligibility for sixteen years. He appeals conviction and sentence.
[2] The primary grounds of appeal relate to the admissibility of physical and forensic evidence gathered by the police as a result of information contained in statements the appellant made to the police. Counsel contends that the statements were obtained in a manner that infringed the appellant’s rights under s. 10(b) and/or s. 7 of the Charter and that the evidence obtained as a result of the information in those statements should have been excluded under s. 24(2) of the Charter.
[3] In addition to the grounds of appeal involving the statements, counsel advances two arguments related to the trial judge’s reasons for judgment. Counsel argues that the trial judge erred in law in using evidence of the appellant’s after-the-fact conduct as evidence from which he could infer that the appellant had the intention necessary for the crime of murder as defined in s. 229(a)(ii) of the Criminal Code. He also alleges both legal and factual errors in the trial judge’s treatment of the competing opinion evidence of two “bloodstain” experts.
[4] On the appeal from sentence, counsel acknowledges that some increase in the parole ineligibility period was warranted in the circumstances of the case. He submits, however, that the sixteen-year parole ineligibility period gave undue emphasis to the appellant’s post-offence conduct and was beyond the appropriate range.
[5] For the reasons that follow, I would dismiss the conviction appeal. I would allow the sentence appeal and reduce the period of parole ineligibility to thirteen years.
II
Factual Background
[6] The deceased, B.T., was married to the appellant. They had two young children. B.T. arrived home on Sunday, September 13, 1998 from a weekend retreat, apparently in good spirits. She was last heard from at around 10:00 p.m. on Sunday evening.
[7] The appellant reported his wife missing on the following Tuesday, September 15. He told the police that he and his wife had argued on the Sunday evening, that she had assaulted him during the argument, had walked away from the house and had not returned. Over the next two days, the appellant provided information to the police suggesting that Mrs. B.T. had left the house with money intended to pay a tax bill and may have gone off with another man whom she may have been seeing at the time.
[8] The police commenced a large scale search for Mrs. B.T. on Tuesday, September 15. They also learned that there had been problems in the T. marriage. The two had separated for a time and reunited in May 1998. The appellant had been charged with assaulting Mrs. B.T., but the police were unaware of the details.[^1] Other facts that came to the attention of the police shortly after they commenced their search caused them to suspect that the appellant may have been involved in his wife’s disappearance. Some of those suspicious circumstances were, however, innocently explained soon after the police became involved.
[9] On Thursday, September 17, four days after Mrs. B.T. had allegedly disappeared, the appellant was asked by police to attend at the police station, ostensibly to have photographs taken of the injuries that he said he had suffered in the argument with Mrs. B.T.. In fact, the police planned to ask Mr. P.T. to take a lie detector test. At this stage, the police did not know whether they were dealing with a missing person case or a criminal case. They had reason to suspect that the appellant may have been involved in his wife’s disappearance, but they did not have reasonable and probable grounds to charge him. They also had reasonable grounds to believe that Mrs. B.T. had walked away from the home as indicated by the appellant.
[10] Mr. P.T. arrived at the police station at about 5:11 p.m. on Thursday, September 17. At about 11:50 p.m., the appellant admitted that he had cremated his wife’s body. Shortly after admitting that he had cremated his wife’s body, the appellant indicated in response to questions from the police officers that B.T. died in the basement of the family home. The appellant said that Mrs. B.T. was punching and kicking him so he pushed her and she fell down the stairs, hitting her head on the floor. He told the police that he had cremated her body in the backyard and then spread her ashes “on the river” because that was what she wanted.
[11] The next day, Friday, September 18, the appellant was taken in a police car with two officers to see a Justice of the Peace. While one officer went to speak to the Justice of the Peace, the other officer stayed with the appellant. The officer in the car suggested to the appellant that he had not revealed the location of his wife’s body because the appellant knew that the condition of the body would not substantiate the appellant’s version of how she had died. The appellant once again indicated he had cremated his wife, but, contrary to earlier statements, said that he had dumped her ashes in a ditch beside a road near their home. A police search of the ditch yielded ashes, bones, teeth, all belonging to Mrs. B.T., and carpet from the appellant’s vehicle.
[12] The events surrounding the making of the statements by the appellant will be set out in more detail when addressing the appellant’s constitutional claims.
[13] By the end of the trial, it was clear that:
- B.T. had died in her home some time Sunday evening after 10:00 p.m.;
- the appellant had caused her death;
- the appellant hid his wife’s body on Sunday evening and made extensive efforts to clean up the home and destroy any evidence that Mrs. B.T. had died in the home;
- the appellant incinerated Mrs. B.T.’s body in his yard over several hours beginning on the evening of Monday, September 14 and ending in the early morning of Tuesday, September 15;
- the appellant cleaned up the incineration site to remove any evidence of what he had done; and
- in the days following Mrs. B.T.’s death, the appellant engaged in a concerted effort to mislead the police, including reporting Mrs. B.T. missing, and suggesting that she may have left the area with another man.
[14] Based in large part on the appellant’s statements to the police, the police obtained a search warrant for the home. A forensic examination of the home indicated that significant efforts had been made to clean up the home and to obliterate any evidence of bloodstains or splattering. Those efforts included cleaning parts of the home, painting certain areas, sometimes with two different paints, and using duct tape to cover up blood in the joints in the floor. The clean-up efforts removed most of the visible signs of blood. However, the police used special chemicals to locate many bloodstains and splatters not visible to the naked eye.
[15] The forensic examination located 103 bloodstains, most of which were made by Mrs. B.T.’s blood. These bloodstains were located primarily in nine different areas in three parts of the home. Extensive blood splattering was found in the kitchen near the side door and on the outside of the door at the side entrance. Blood was also found on the walls, handrail and the landing of the stairs leading from the side entrance to the basement. Finally, blood was found on the basement floor and walls.
[16] The Crown expert called to testify as to his opinion based on the bloodstain and blood splatter patterns offered five opinions:
- Mrs. B.T. received at least one medium velocity impact while in the doorway area of the kitchen side entrance at a height of about one metre above the floor;
- the side door was open for at least one impact to Mrs. B.T. while she was in the vicinity of that door;
- Mrs. B.T. was lying on the stairway landing for some time after receiving a bloodletting injury;
- Mrs. B.T. received at least one additional medium velocity impact while lying on the basement floor underneath the steps; and
- there was an obvious and extensive clean-up attempt, including painting areas of the home white and grey.
[17] The only witness called by the defence was an expert who challenged some of the opinions of the Crown expert. He testified that the blood splatters did not permit any inference as to whether Mrs. B.T. had suffered a medium velocity impact, much less more than one medium velocity impact. The defence expert did agree, however, that there had been extensive efforts to cover up the blood splatters and that Mrs. B.T.’s body was lying on the landing of the stairs for some time after she was bleeding.
[18] The defence expert testified that the evidence of the blood splattering relied on by the Crown expert was sufficient only to allow the conclusion that Mrs. B.T.’s body was moved out of the home through the side door and that in the course of moving the body, it was jostled or bumped against something, which caused her blood to disperse about a quarter of a metre beyond the door entrance.
III
The Grounds of Appeal Relating to the Appellant’s Statements
(i) Overview
[19] The appellant made three statements to the police shortly before and after midnight on Thursday, September 17 and a fourth statement in the afternoon of Friday, September 18. In these statements, he admitted causing his wife’s death (although he said he did so unintentionally), incinerating her remains and scattering her ashes. The information in the statements led the police to the location of the deceased’s remains and was relied on by the police to obtain a search warrant for the appellant’s home. That search ultimately led the police to locate the evidence of bloodstains and blood splatters relied on by the Crown expert and described above.
[20] The Crown did not seek to tender any of the statements made by the appellant. The appellant at trial argued, however, that the statements were obtained in violation of his rights under s. 10(b) and/or s. 7 of the Charter and that the evidence obtained as a result of the information in those statements should be excluded under s. 24(2) of the Charter. This derivative evidence included the evidence of the finding of the deceased’s remains and all of the evidence found in the appellant’s home.
[21] The trial judge conducted a voir dire at the outset of the trial. The police officers involved in the taking of the statements testified on the voir dire. The appellant did not testify and did not call any evidence. The trial judge found no Charter violations. Consequently, the exclusionary reach of s. 24(2) of the Charter did not extend to the physical and forensic evidence discovered as a result of the information provided in the statements.
(ii) A summary of the relevant evidence
[22] As the issues raised by the appellant turn largely on factual determinations, a somewhat detailed review of the relevant evidence is necessary.
[23] The appellant first spoke to the police on Tuesday, September 15 when he reported that his wife had gone missing two days earlier. On Wednesday, September 16, the appellant spoke at some length with the police officers who were investigating his wife’s disappearance. He talked about his marriage and the events leading to his wife’s disappearance. In this discussion, the appellant depicted himself as the long-suffering husband who had been the victim of verbal and physical violence at the hands of his wife during the marriage. He told the police that his wife had assaulted him during the argument on Sunday evening. The appellant intimated that his wife had deserted the family, taking with her much-needed cash, and had probably gone off with another man. The police asked the appellant to prepare a written statement setting out the details of the relationship and the disappearance.
[24] The investigating officers returned to the appellant’s home at about 4:00 p.m. on Thursday, September 17. He had partially completed the written statement. The officers asked the appellant to come to the police station to have photographs taken of the injuries that he said his wife had inflicted on him. The investigating officers had also made arrangements for a polygraph operator, Detective Staff Sergeant Young, to attend at the police station. The investigating officers planned to ask the appellant to take a polygraph test once he was at the police station and had been introduced to Sergeant Young. The investigating officers thought that there would be a better chance that the appellant would agree to take the test if they made the request for the first time at the station without giving the appellant any prior notice of their intention.
[25] As of the afternoon of Thursday, September 17, the police were engaged in a large scale search for Mrs. B.T.. The investigating officers had reason to believe that the appellant may have been responsible for her disappearance, but that suspicion did not amount to reasonable and probable grounds to charge the appellant with any criminal offence. In fact, the investigating officers had received a report of an apparently credible eyewitness indicating that Mrs. B.T. had been seen alive on the Monday evening, the day after the appellant said that she had walked out of the family home.
[26] The appellant agreed to go to the police station with the police. He drove his children to his parents’ home and then chose to go with the police in their vehicle to the police station. The appellant arrived at the station shortly after 5:00 p.m. He was introduced to Sergeant Young at 5:28 p.m. He was with him for the next 5½ hours. The entire interview was videotaped and the videotape was entered in evidence on the voir dire.
[27] Sergeant Young told the appellant that the purpose of the polygraph test was to determine whether he had killed his wife. He overstated the accuracy of the test. Sergeant Young told the appellant he was not under arrest and was not detained, and that he could leave the police station if he wished to do so. Sergeant Young went on to tell the appellant that he could refuse to take the test, and if he agreed to take the test, he could decide to stop the test at any time he wanted. Sergeant Young told the appellant that even if he decided to take the test, he was free to leave at any time he wished to do so. Finally, Sergeant Young advised the appellant that he could seek legal assistance, including through Legal Aid, before deciding whether to take the test.
[28] The appellant showed some reluctance when asked to take the polygraph test. He spoke about talking to a lawyer before making any decision. However, he ultimately chose to take the test and signed a consent form. The trial judge found that the appellant’s consent was a fully informed one made with full knowledge of the ramifications of the test, a full appreciation of its purpose, and a full understanding that he was under no obligation to take the test and could leave the station if he wished to do so. The trial judge specifically rejected the contention that Sergeant Young’s exaggeration of the accuracy of the test somehow affected the validity of the appellant’s consent to the administration of the test.
[29] The preparation for and administration of the polygraph test was completed at 9:10 p.m. After examining the results, Sergeant Young concluded that the appellant had “failed” the test. He returned to the interview room and said to the appellant:
There’s no doubt in my mind that you’ve taken the life of B.T.. Want you to understand that.
[30] Using various interrogation techniques designed to obtain an admission, Sergeant Young questioned the appellant for the next 1½ hours (9:25 p.m. to 10:55 p.m.). Although the questioning was persistent, the trial judge, who viewed the videotape, found that the questioning was in no way abusive or oppressive. Sergeant Young maintained a respectful and professional demeanour with the appellant.
[31] Sergeant Young did not obtain any admissions from the appellant, although he thought he was close to getting admissions on one or two occasions. During the 1½ hour interrogation, Sergeant Young told the appellant on several occasions that he was free to leave if he wished to do so. However, when the appellant expressed some desire to leave or to speak to his lawyer before continuing with the interrogation, Sergeant Young would acknowledge that the appellant was entitled to do both things, but would then continue with his questions, sometimes after subtly changing his approach.
[32] By 10:30 p.m., Sergeant Young was satisfied that the appellant wanted to terminate the interview and that he was not going to make any admissions. Sergeant Young believed that the appellant had killed his wife, but he did not think there were reasonable grounds to arrest him. He left the appellant in the interview room and went to speak with the investigators. He told them that the appellant had terminated the interview and that he did not believe they had grounds to hold the appellant.
[33] The investigating officers agreed with Sergeant Young. They decided to try one more ruse in an effort to induce an admission from the appellant. They told him (falsely) that his mother was on the way to the police station and that he might want to speak to her before saying anything further to the police. The appellant became angry when told that his mother was on the way to the station and made it clear that he was finished talking and was going to leave the station.
[34] Once the investigators were satisfied that the appellant would be leaving the station, they turned their attention to his children. The children were with the appellant’s parents. The investigating officers were concerned about the safety of the children, first, because they believed the appellant had killed his wife and, second, because the appellant had made certain disturbing comments during his interrogation by Sergeant Young. For example, at one point, the appellant said that after the interview was over he would go home that night and “do what I have to do”. The investigating officers decided that arrangements should be made to contact the local Children’s Aid Society to apprehend the appellant’s children and place them in temporary foster care where the appellant would not have access to them.
[35] The trial judge found that the decision of the investigating officers to involve the Children’s Aid Society reflected a legitimate and reasonable concern about the safety of the children.
[36] Believing that the interview with the appellant was over, the investigating officers took him from the interview room to the breathalyzer room in the police station. They told him that they would drive him home. The investigating officers also told the appellant that they were concerned about his children’s safety and that the Children’s Aid Society had been called to apprehend the children and place them in temporary foster care. The appellant became upset when told of the plans to apprehend his children. He insisted he would never harm them, but the officers said they could not take that chance. The appellant then asked what options he had. One of the investigating officers told him that if he chose to tell the truth and admit that he had killed his wife, he would be placed in custody and his children could stay with his parents since there would no longer be any concerns about the appellant gaining access to them.
[37] The appellant did not immediately respond to the police when told of this possibility. Instead, he said he was hungry. The police ordered some food. While waiting for the food, one officer gave the appellant a paper and pen and asked him to draw a map showing the location of his wife’s body. The appellant made no response. The food arrived at 11:33 p.m. and the appellant was left alone in the breathalyzer room to eat his food. At one point while the appellant was eating, one of the investigating officers went back into the breathalyzer room and once again asked the appellant to tell him where he could find the body. The appellant turned towards the officer with tears in his eyes and said:
There is no body. I cremated her the way she wanted me to.
[38] I will refer to this as “Statement #1”. This statement was made in the breathalyzer room and was not videotaped. Immediately after the appellant made this statement, he asked if he could call his mother. The police arranged the call.
[39] At 11:51 p.m., the investigating officers took the appellant back into the interview room. The proceedings in the interview room were videotaped and a copy of that videotape was made an exhibit on the voir dire.
[40] The officers began by telling the appellant they were investigating his wife’s “disappearance”. They further advised him of his right to retain and instruct counsel and of the availability of free legal advice through Legal Aid. He was asked if he wished to speak to a lawyer. The appellant said he did not know whether he should talk to a lawyer, but that he was not going home if it meant that the Children’s Aid Society would apprehend his children. The police advised him that they believed they had the grounds necessary to have the Children’s Aid Society apprehend the children. The officer then said:
The reason why we are back into this room, P.T., is because of what you told me in the other room.
[41] The appellant then acknowledged that he had cremated his wife’s body, indicating that she had died in the basement. He said:
She kept punching and kicking. And I pushed her back, and she fell down the stairs, and she smacked her head on the floor, and she just lied there.
[42] Immediately after this statement was made, the officer told the appellant that he was under arrest “for the death of B.T.” and was no longer free to leave the station. The officer also repeated the appellant’s right to counsel. The appellant said that he did not want to call a lawyer because it would not change anything. After one of the officers suggested that he should call a lawyer, the appellant agreed to do so. This interview ended at 12:01 a.m. I will refer to the videotaped statement made between 11:51 p.m. and 12:01 a.m. as “Statement #2”.
[43] The appellant returned to the interview room at 12:29 a.m. He said that his lawyer had told him not to say anything more, but that he wanted to explain things to the police. One of the officers immediately stopped him and told him that he was charged with the second degree murder of his wife. He was cautioned and further advised that he should not be influenced by anything that had previously been said to him by the police.
[44] The officers began this part of the interview by asking about the cremation. The appellant acknowledged that he had cremated his wife and that she had died after she fell down the steps during an argument. The appellant described his marital relationship in some detail, painting a picture of his wife as an aggressive and difficult person. According to him, she repeatedly assaulted him, including during the argument that culminated in her death. The appellant said:
I’m in the kitchen, I’m getting away from her, and she kept coming and hitting and, … Well, it would be across the back, or. Because you’re turning away from her, and, and, she wouldn’t stop. … And then I pushed her to get her off me. She went down the stairs and hit her head.
[45] The appellant went on to say that he had cremated his wife’s body in the backyard and spread her ashes “off the bridge on the river”.
[46] This interview ended at 1:15 a.m. I will refer to the statement made between 12:29 a.m. and 1:15 a.m. as “Statement #3”.
[47] The appellant was held in custody overnight. The next day, Friday, September 18, he spoke with his lawyer in the morning. At 12:10 p.m., the appellant was brought from his cell to the interview room. One of the officers asked him for more details as to where his wife’s remains could be found. The appellant replied that he had spoken to his lawyer and had nothing further to say. He was returned to the cells.
[48] Later that afternoon at about 3:55 p.m., the investigating officers drove the appellant to the Justice of the Peace. One officer went inside to speak to the Justice of the Peace and the other remained in the car with the appellant. The officer suggested to the appellant that he was not prepared to tell the police where they could find the body because it would not be in a condition that would support his story about how his wife had died. The officer also suggested that if the body was in a condition consistent with death by a fall, that would lend credence to the appellant’s story.
[49] The appellant insisted that he had spread his wife’s ashes as she requested. He then said that he dumped the ashes in a ditch near a concession side road. He gave the officer directions to the site. Later that afternoon, the police went to the site and found ashes, bones and teeth belonging to Mrs. B.T. as well as carpet from the appellant’s vehicle. I will refer to the appellant’s statements in the police car on Friday afternoon as “Statement #4”.
(iii) The alleged breach of s. 10(b) of the Charter
[50] To bring the physical and forensic evidence within the exclusionary reach of s. 24(2) of the Charter, the appellant had to demonstrate that his statements which led the police to that evidence were obtained in a manner that infringed one of his rights under the Charter. Insofar as the appellant relied on s. 10(b), the rights and consequential police obligations encompassed by that provision attach only upon arrest or detention. Police compliance with s. 10(b) only becomes an issue after the individual first establishes that he was detained or under arrest when he made the statement: R. v. Hawkins (1993), 79 C.C.C. (3d) 576 (S.C.C.).
[51] At trial, the appellant argued that he was detained from the time he went to the police station on Thursday afternoon until he was arrested while at the police station shortly after midnight on Friday morning. In advancing this claim, the appellant relied on the concept of psychological detention first described in the dissenting reasons (but not on this issue) of Le Dain J. in R. v. Therens (1985), 18 C.C.C. (3d) 481 at 505 (S.C.C.):
[T]he element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.
[52] There are two components to psychological detention: an acquiescence in the deprivation of liberty and a reasonable belief that there is no choice but to acquiesce in that deprivation.
[53] Counsel on appeal does not take issue with the trial judge’s finding that the appellant was not detained when he first went to the police station on Thursday afternoon, or when he took the polygraph test. Counsel submits, however, that the trial judge erred in holding that the appellant was not detained after Sergeant Young interpreted the results of the test and concluded at about 9:25 p.m. that the appellant had failed the test and was implicated in his wife’s death. Counsel submits that the dynamic between the appellant and the police changed dramatically at that point. He became the suspect, rather than a possible suspect, and was subjected to a prolonged, skillful interrogation that was conducted with a view to obtaining a confession.
[54] In advancing this submission, counsel does not allege that the trial judge erred in his understanding of the legal meaning of detention in s. 10(b), or that he failed to make the contextual assessment dictated by the case law: e.g. see R. v. Moran (1987), 36 C.C.C. (3d) 225 at 258-59 (Ont. C.A.). Rather, counsel argues that the trial judge’s conclusion reflects an unreasonable assessment of the relevant factors. Counsel submits that the trial judge gave overriding weight to Sergeant Young’s repeated indication to the appellant that he could leave the police station if he wished to do so. Counsel contends that these words ring hollow when placed in the context of the actual conduct of the interview and Sergeant Young’s determination to get an admission from the appellant.
[55] Clearly, the mere fact that a police officer tells an individual that he is at liberty to leave, even if he tells him so more than once, is not determinative on the issue of detention: R. v. Johns (1998), 123 C.C.C. (3d) 190 at para. 28 (Ont. C.A.). I do not, however, read the trial judge’s careful reasons as focusing exclusively or even excessively on that one feature of the evidence.
[56] In coming to his conclusion that the appellant was not detained after Sergeant Young concluded that he had failed the polygraph test and proceeded to question him, the trial judge relied on the following considerations:
- the appellant was still a suspect, but there were no reasonable and probable grounds to arrest him;
- when Sergeant Young commenced the interview after he had interpreted the test results, he expressly told the appellant he could leave if he wished to do so, and he repeated this statement during the course of the 1½ interview; and
- when Sergeant Young stopped the interview because the appellant indicated he wanted to leave, Sergeant Young fully intended to release the appellant.
[57] After a thorough review of the evidence, including the videotape of the interview, the trial judge said:
…I cannot conclude that P.T. reasonably believed that he had no choice but to comply with police’s wishes or directives. The ultimate piece of evidence is that he did terminate the interrogation, did not submit to Sergeant Young’s repeated requests and suggestions to tell him what truthfully happened.
[58] The appellant’s challenge to what is essentially a factual finding by the trial judge is hampered considerably by his failure to testify on the voir dire. When the question whether a person has been detained during an interrogation comes down to whether that person reasonably believed he no longer had any choice but to remain in the police presence, the absence of any evidence from that person as to his state of mind poses a significant impediment to establishing psychological detention: R. v. Nicholas (2004), 182 C.C.C. (3d) 393 at paras. 40-42 (Ont. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, [2004] S.C.C.A. No. 225. In the absence of any evidence from the appellant speaking to his state of mind, it is difficult to conclude that the trial judge’s finding that the appellant had not established that he had no choice but to comply with police directives at the relevant time is unreasonable. The appellant’s difficulty in this case increases given the evidence from the officers, which is supported by the videotape, indicating that the appellant was told and understood that he was at liberty to leave the police station if he wished to do so.
[59] The appellant has not demonstrated any basis upon which this court can interfere with the trial judge’s finding that he was not detained as of the end of the interview with Sergeant Young shortly after 10:30 p.m. on Thursday evening.
[60] Within moments of the conclusion of the interview with Sergeant Young, the investigating officers told the appellant that he was free to go and offered to drive him home. At the same time, they told him about the decision to have the Children’s Aid Society remove his children and place them in foster care. The indication by the investigating officers that the appellant was free to go strongly tells against any contention that he reasonably believed he was in custody. The appellant clearly understood that he was free to go, but was concerned that by going home he would cause his children to be apprehended by the Children’s Aid Society.
[61] I note that the investigating officers’ reference to the planned involvement of the Children’s Aid Society is irrelevant to whether the appellant was detained, although it is significant on the question of the voluntariness of Statement #1. I will address that issue below.
[62] The events between the end of the interview with Sergeant Young at around 10:30 p.m. and before the appellant’s admission that he incinerated his wife’s body (Statement #1) made at around 11:50 p.m. offer no support for the appellant’s detention claim. Rather, they enhance the Crown’s contention that the appellant understood that he was free to leave the police station when he made Statement #1. The trial judge correctly held that the appellant’s rights under s. 10(b) of the Charter were not engaged prior to the making of Statement #1.
[63] The trial judge found that the appellant was detained as soon as he made Statement #1. On admitting that he had cremated his wife’s body, he was no longer free to leave the station. The investigating officers immediately took the appellant back to the interview room where the videotape equipment was located. They began the videotaped interview by advising the appellant of his rights under s. 10(b). Statement #2 followed. The appellant was then arrested, given a further opportunity to speak to his lawyer, spoke to his lawyer, and Statement #3 followed.
[64] The trial judge found that the police complied with their obligations under s. 10(b) before the appellant made Statements #2 and #3. I do not understand counsel on appeal to argue otherwise.
[65] The appellant was obviously detained when he made Statement #4 in the police car on Friday afternoon. However, he had had an opportunity to exercise his right to counsel and had spoken to counsel twice before making this statement. Counsel had told him not to say anything to the police. The appellant clearly understood this advice and had followed it earlier that day. The trial judge correctly observed that the police are under no legal obligation to stop questioning an accused under detention merely because the accused has invoked his right to silence on the advice of counsel. The Charter does not prohibit further questioning, as long as the detained person is not deprived of the right to choose whether to speak to the authorities: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.).
[66] Nothing in the circumstances surrounding the making of the statement in the police car, nor in the nature of the questions posed by the officer, negated the appellant’s ability to choose whether to speak to the officer. The appellant chose to speak to the officer knowing full well he was not obligated to do so and that his lawyer had advised him that he should not do so.
[67] The appellant’s arguments based on the alleged breach of s. 10(b) of the Charter fail.
(iv) The alleged breach of s. 7 of the Charter
[68] The appellant submits that the Crown failed to establish that the statements were voluntary within the common law meaning of the concept of voluntariness as applied to statements made to persons in authority. The appellant contends that statements made to the police that are involuntary under the common law rule automatically violate s. 7 of the Charter, specifically the right to silence component of the rights protected by s. 7.
[69] In R. v. Sweeney (2000), 148 C.C.C. (3d) 247 at 259-60 (Ont. C.A.), this Court held that statements which offend the common law voluntariness rule taken by the police from persons in detention violate s. 7 of the Charter. As the appellant was not detained when Statement #1 was taken, he can succeed on this argument only if the court extends the holding in Sweeney to all statements made to persons in authority.
[70] This is not the case to decide whether that extension should be made. The trial judge found that the Crown had proved beyond a reasonable doubt that the statements were voluntary. He reached that conclusion after a full review of the evidence and a consideration of the law as outlined in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.). His finding of voluntariness is entitled to deference and cannot be disturbed absent legal error or overriding factual error: R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 at para. 68 (Ont. C.A.). The appellant has failed to demonstrate a basis upon which appellate intervention is warranted.
[71] The appellant attacked the voluntariness finding on three fronts. First, he argued that an atmosphere of psychological oppression was created during the interview between Sergeant Young and the appellant and that this atmosphere eventually caused the appellant to make the admissions that he did on Thursday evening and early Friday morning. Second, the appellant maintained that Sergeant Young offered certain inducements to the appellant, including an implied suggestion that a confession would lead to more lenient treatment. Third, counsel argued that the investigating officer’s statement to the appellant that he could avoid the involvement of the Children’s Aid Society if he told the truth because he would then be in custody and there would be no need to apprehend the children amounted to an inducement that led directly to Statement #1.
[72] I can dispose of the first two arguments quickly. The trial judge found that there was no atmosphere of oppression during the interview on Thursday evening. He reached this conclusion after hearing the witnesses and viewing the videotape. It is not for this court to second-guess that factual assessment. Insofar as the alleged inducements by Sergeant Young are concerned, the trial judge found that there were no such inducements and, more significantly, that whatever Sergeant Young said to the appellant, it did not cause him to make any of the inculpatory statements. By the end of the interview with Sergeant Young, the appellant had not said anything inculpatory and the police fully intended to release the appellant. Even if Sergeant Young offered certain inducements, they did not produce the statements that were under constitutional attack on the voir dire.
[73] The third argument requires a somewhat more detailed analysis. The trial judge found that the officer’s statement to the appellant that if he told the truth he would be arrested and placed in custody so there would be need for the involvement of the Children’s Aid Society “triggered” Statement #1. The trial judge found that the officer’s comment was an honest reply in response to a question from the appellant. The trial judge also held that the investigating officers reasonably believed that the apprehension of the children for their own safety was necessary if the appellant was at liberty. The decision to tell the appellant of their intention to have his children apprehended before releasing him was not, on the trial judge’s findings, a ruse or strategy designed to elicit an admission from the appellant. It was a reasonable response to the situation faced by the investigating officers.
[74] Not all police statements or actions which induce a confession render the confession inadmissible. In Oickle, at para. 57, Iacobucci J. observed:
In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. …
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.
[75] On the trial judge’s assessment of the evidence, there was no quid pro quo or even any inducement. There was only an honest, straightforward response by the investigating officer to the appellant’s question. The appellant asked what his options were insofar as his children’s apprehension by the Children’s Aid Society was concerned. The investigating officer’s answer to that question contained an accurate appraisal of the appellant’s situation.
[76] The circumstances of this case have some similarity to those described in R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at paras. 120-21 where the police told a detained person that he would be released if he provided an alibi that could be confirmed. That comment induced a statement which was subsequently relied on by the Crown. In upholding the trial judge’s decision that the statement was voluntary, Rosenberg J.A. observed (at para. 121):
The statement to the appellant was an accurate appraisal of the circumstances. It would be an odd result if police could not invite a suspect, who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability. That is what occurred here [emphasis added].
[77] It would be an odd result in the circumstances of this case if the police were not permitted to apprise the appellant of the involvement of the Children’s Aid Society and the reason for that involvement. To send the appellant home without any advance notice that his children would be apprehended by the Children’s Aid Society would be to invite a potentially very volatile confrontation between the appellant and the Children’s Aid Society authorities. Having made the appellant aware of their planned course of action, I do not think the police can be accused of inducing a confession when they honestly answered a question put to them by the appellant. Finally, the appellant’s conduct after he was told of the option whereby he could avoid the apprehension of his children does not suggest that his will was overborne by that statement. Instead, he requested food, ate the food that was ordered, and only then decided to tell the police that he had incinerated his wife’s body.
[78] I would not interfere with the finding that Statement #1was voluntary, despite the fact that it was triggered by the officer’s statement to the effect that the appellant could avoid the involvement of the Children’s Aid Society by telling the truth.
[79] For the reasons already set out above in paragraph 72, I see no merit to the arguments that Statements #2 or #3 were involuntary. The contention that Statement #4 was tainted by the involuntariness of the prior statements thus fails.
[80] As I would not interfere with the trial judge’s finding that all of the statements were voluntary, the appellant’s s. 7 argument must fail and I need not consider whether Sweeney should be extended to all statements made to persons in authority.
IV
Did the Trial Judge Err in Law in Using the After-the-Fact Conduct as Evidence of the Appellant’s Intention to Commit Murder?
[81] By the end of the evidence, counsel for the appellant conceded that the appellant had caused Mrs. B.T.’s death in the home and was guilty of manslaughter. The crucial question was whether the Crown had proved that the appellant had committed murder as defined in s. 229(a)(ii) of the Criminal Code. Paraphrased, that section defines culpable homicide as murder when the person causing death means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues.
[82] The trial judge carefully reviewed the after-the-fact conduct evidence, most of which was unchallenged. He used that evidence to infer that the appellant had the intention described in s. 229(a)(ii). Two references to his reasons will suffice to show how he used the after-the-fact conduct evidence:
His plan to have all traces of what occurred disappear would allow him to carry on with his charade that he had absolutely nothing to do with her disappearance let alone her death. That indicates a much higher level of offence than an application of force without intention to cause injuries that were likely to cause death.
When one looks at the elaborate plan put in place by the accused after his wife’s death on September 13, 1998, such conduct is highly incriminating. This was not conduct that occurs after the commission of the offence, such as leaving the scene or lying about some events. The conduct here cannot be consistent with any other rational conclusion. And the extensive nature of the conduct is probative of the level of culpability of the accused. Especially his action of disposing of her body the way he did. In my view, the post-offence conduct, in the circumstances described, show the accused had more to hide than that he had caused her death without intending to do so [emphasis added].
[83] Counsel for the appellant submits that post-offence conduct is usually irrelevant to establish the degree of criminal responsibility once some level of criminal responsibility is demonstrated. Counsel further contends that the appellant’s after-the-fact conduct could not assist in proving that he was guilty of murder as opposed to manslaughter.
[84] I do not think that any helpful generalization can be made about the potential relevance of after-the-fact conduct evidence. Counsel’s position on behalf of the appellant is, however, understandable. Canadian courts, alone to my knowledge among common law jurisdictions, under the rubric “consciousness of guilt”, developed an elaborate and confusing jurisprudence as to the proper instruction to be given to juries where the Crown relied on after-the-fact conduct of an accused to prove its case. That jurisprudence suggested that “consciousness of guilt” evidence was subject to its own set of special rules: R. v. Burdick (1975), 27 C.C.C. (2d) 497 at 506 (Ont. C.A.); R. v. Marinaro (1996), 105 C.C.C. (3d) 95 (S.C.C.), adopting the dissenting reasons of Dubin C.J.O. (1995), 95 C.C.C. (3d) 74 at 82 (Ont. C.A.).
[85] More recent case law has, however, recognized that after-the-fact conduct evidence is simply a species of circumstantial evidence. The evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial: R. v. Peavoy (1997), 117 C.C.C. (3d) 226 at paras. 23-35 (Ont. C.A.); R. v. White (1998), 125 C.C.C. (3d) 385 at paras. 19-35 (S.C.C.); R. v. Trochym (2004), 186 C.C.C. (3d) 417 at paras. 16-25 (Ont. C.A.), leave to appeal to the Supreme Court of Canada granted, [2005] S.C.C.A. No. 16. Some after-the-fact conduct will, as a matter of common sense and human experience, when viewed in the context of the entirety of the evidence, be reasonably capable of supporting an inference as to an accused’s state of mind at the time of the homicide in issue: R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 at paras. 14-16 (Ont. C.A.); R. v. Poitras (2002), 57 O.R. (3d) 538 at para. 11 (Ont. C.A.).
[86] The trial judge found that the appellant’s course of conduct from the time he killed his wife on Sunday evening until his arrest some four days later was consistent with the conduct of a person who had intentionally inflicted serious injuries on his wife and then went to great length to try to cover up what he had done and to develop an “innocent” explanation for his wife’s disappearance. For example, the trial judge’s conclusion that the appellant’s cremation of his wife’s body, which took several hours and created a strong stench, was a calculated and risky attempt to ensure that the police would be unable to determine the cause of Mrs. B.T.’s death and the exact nature of her injuries. Proof of those facts could have gone a long way to determining whether the appellant acted with the intent required by s. 229(a)(ii) when he caused his wife’s death. As a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death.
[87] The appellant engaged in an elaborate cover-up of his wife’s killing. Faced with this evidence, the trial judge inferred that the appellant had engaged in this concerted effort to cover up his wife’s death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference. More to the point, once it is acknowledged that the inference could be drawn, it was for the trier of fact to decide whether the inference should be drawn: R. v. Trochym, supra, at para. 25.
[88] I would not give effect to this ground of appeal.
V
The Trial Judge’s Analysis of the Expert Evidence
[89] As indicated above, by the end of the evidence, the only live issue was whether the appellant had the intention necessary for murder under s. 229(a)(ii). The expert evidence was crucial on this issue. According to the Crown’s expert, the bloodstains and splatters supported the inference that the deceased was struck at least twice with medium velocity impacts while her body was in two different locations in the house. One impact occurred while she was lying on the basement floor. A medium velocity impact was described as a blow struck with a fist or a bat or some similar object. If the opinion of the Crown expert was accepted, there could be no doubt about the appellant’s intention.
[90] The defence expert accepted some of the opinions advanced by the Crown’s expert, but took issue with the Crown expert’s evidence that the deceased had been struck with at least two medium velocity impacts. He testified that the number and nature of the blood splatters described by the Crown expert were consistent with the deceased’s blood having been deposited in those locations when her body was jostled or struck the wall as it was being removed from the home. This theory was arguably consistent with the appellant’s position that he was guilty of manslaughter and not murder.
[91] The trial judge’s treatment of the expert evidence in his reasons is a model of thoroughness and clarity. He first spent several pages reviewing that evidence in a somewhat general fashion, outlining the areas where the experts agreed and disagreed. The trial judge then referred, correctly, to the burden of proof as applied to expert evidence and made specific reference to the controlling case law. He next reviewed the evidence of the Crown and defence expert in great detail. After that review, he spent some ten pages conducting a critical analysis of the evidence of the two experts and setting out his conclusions.
[92] Counsel for the appellant contends that the trial judge improperly reversed the onus of proof when addressing the expert evidence. He seizes on the trial judge’s use of the word “demonstrate” when describing an in-court demonstration given by the defence witness. According to the trial judge, this in-court demonstration did not “demonstrate” that the staining pattern found in the home could not have been the result of medium velocity impacts.
[93] I do not take this reference as a statement of the burden of proof. The trial judge dealt expressly and correctly with the burden of proof on the Crown and specifically referred to this court’s decision in R. v. Molnar (1990), 55 C.C.C. (3d) 446 at 447 (Ont. C.A.), the very authority said by the appellant to set out the applicable burden of proof. The passage relied on by the appellant is simply a statement of the trial judge’s assessment of the very limited probative value of the in-court demonstration performed by the defence expert.
[94] The trial judge concluded that the Crown expert’s opinion evidence offered the only reasonable explanation for the amount and location of Mrs. B.T.’s blood found in the home. There is no reason to think that he misapplied the burden of proof in coming to that conclusion.
[95] Counsel further submits that the trial judge misapprehended material portions of the defence expert’s evidence. He argues that the trial judge misunderstood the expert’s evidence concerning blood splatters and mistook this evidence as positing an explanation for all of the blood found in the home. Counsel submits that the defence expert’s evidence challenging the Crown evidence that Mrs. B.T. was struck with at least two medium velocity impacts was directed only at the specific blood splatters relied on by the Crown expert in reaching that conclusion.
[96] I find no misapprehension of the evidence. To the contrary, I think the trial judge clearly understood the narrow focus of the defence expert’s disagreement with the Crown evidence and he ultimately found the defence evidence unhelpful, in part because it had such a narrow focus.
[97] As I read the trial judge’s reasons, he ultimately rejected the defence expert’s opinion because the defence expert offered no tenable explanation for the entirety of the scene as found upon the forensic examination of the home. The amount of Mrs. B.T.’s blood found at the scene and the numerous locations where her blood was found (bearing in mind that the trial judge found that most of the bloodstains had been totally obliterated by the appellant’s clean-up efforts) were unexplained by a suggestion that the deceased had fallen down the stairs and that the rest of the blood found in the house was caused by jostling the body against the wall or the stairs as the appellant carried it out of the house.
[98] As the trier of fact, the trial judge was obliged to assess the expert evidence in its entirety and in the context of the whole evidentiary picture. That is what he did and that is why he rejected the defence evidence as offering any possible reasonable explanation for the blood found in the home.
VI
The Sentence Appeal
[99] The appellant was 41 years of age at the time of his conviction. His life prior to the offence was unexceptional. He did not have a criminal record, but had received a conditional discharge for assaulting his wife in the course of an argument over her disciplining of their daughter. That assault led to a separation, which ended about four months before the homicide.
[100] The trial judge directed his attention to the statutory factors relevant to fixing the period of parole ineligibility following a conviction for second degree murder. I see no error in his analysis of the relevant factors. His characterization of the appellant’s elaborate efforts to cover up his crime as an aggravating factor finds support in the case law from this Court: R. v. Sodhi (2003), 179 C.C.C. (3d) 60 at paras. 130-31 (Ont. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, [2004] S.C.C.A. No. 31.
[101] After a review of the factors relevant to the issue of parole ineligibility, the trial judge turned to the case law. He referred to R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.) and said:
[I]n cases involving brutal second degree murder in a domestic or family context, a range of twelve to fifteen years as a period of parole ineligibility is generally applied in this province.
[102] The trial judge then commented that the case law did not establish “a ceiling” for sentencing purposes and proceeded to impose a parole ineligibility period of sixteen years, without explaining why it was necessary to go above the range in this case.
[103] Section 718.2(b) of the Criminal Code describes the parity principle of sentencing:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[104] Appellate courts play a vital role in maintaining parity of sentencing by providing guidelines as to the appropriate range of sentence for types of cases that arise on a relatively regular basis. McKnight, supra, performed this task in connection with “domestic” murders.
[105] I agree with the trial judge’s observation that in setting an appropriate range for a certain type of offence, an appellate court is not imposing a “ceiling” on the sentences that can be imposed in those kinds of cases. Sentencing remains a vitally individualistic process requiring a careful exercise of judicial discretion. That said, however, I think that where the appellate court has described a range for a certain category of offence and a trial judge chooses to go above, or below, that range, it is incumbent on the trial judge to clearly explain why he or she has departed from the appropriate range. The trial judge did not do so and, in my view, erred in principle. That error requires this court to determine a fit period of parole ineligibility.
[106] My review of the record offers no reason to depart from the range described in McKnight. While the Crown did not contend that the appellant set out to kill his wife, or that he intended to kill her, the appellant’s prior domestic assault and his after-the-fact conduct are significantly aggravating features. In my view, an appropriate period of parole ineligibility would be thirteen years.
VII
Conclusion
[107] I would dismiss the conviction appeal. I would allow the sentence appeal and vary the period of parole ineligibility to thirteen years.
RELEASED: “DD” ‘SEP 12 2005”
“Doherty J.A.”
“I agree K.M. Weiler J.A.”
“I agree S.T. Goudge J.A.”
[^1]: The appellant had received a conditional discharge.