DATE: 20050311
DOCKET: C36177
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SHARPE and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Kenneth L. Campbell for the respondent
Respondent
- and -
C.D.
Philip Campbell and Jonathan Dawe for the appellant
Appellant
Heard: January 26, 27 and 28, 2005
On appeal from the conviction entered by Justice James Chadwick of the Superior Court of Justice dated February 2, 2001.
SHARPE J.A.:
[1] The appellant C.D. was convicted of first-degree murder in the death of S.D., her estranged husband. The Crown alleged that the appellant poisoned S.D. with a concoction of antifreeze and wine. At her trial before a judge sitting without a jury, the central issue was whether S.D.’s death resulted from murder or suicide. The appellant argues that the verdict was unreasonable and that the trial judge misapprehended important evidence. She also applies for a disclosure order and for the admission of fresh evidence on appeal. The respondent Crown raises as an additional issue whether the videotaped statement of a deceased witness was improperly excluded at trial.
FACTUAL BACKGROUND
[2] S.D. and the appellant were married in 1971. They lived on a farm near Killaloe on public assistance and on the income they earned from looking after foster children. The D. had three children: A.D., aged 24 at the time of trial, and two younger children, aged 10 and 13 at the time of trial.
The D.’ separation
[3] In early 1992, the appellant met G.D. at an incest survivors’ group and commenced a lesbian relationship with her. In July 1992, S.D. and the appellant separated. The appellant moved in with G.D.
[4] S.D. and the appellant fought over the custody of their three children. The appellant alleged that S.D. had physically and sexually abused their children as well as the foster children in their care. These allegations were found to be groundless and to have been fabricated by the appellant to gain an advantage in the custody dispute. In May 1993, S.D. was awarded custody of the children and possession of the farm. Although Family and Child Services obtained a court order restricting the appellant to supervised access of the children, S.D. freely granted the appellant access. In September 1994, the couple entered into minutes of settlement that provided for joint custody, with the children’s primary residence to be at the farm.
[5] The D.’ farm property was owned jointly but, during the divorce proceedings, S.D. had title to the farm changed to a tenancy-in-common. When relations between the D. improved in early summer 1995, he had the title converted back to joint tenancy.
S.D.’s cancer
[6] In the spring of 1994, S.D. was diagnosed with cancer of the mouth, as a result of which the D. agreed to suspend their divorce proceedings. He was initially given a forty-five to fifty-five per cent chance of survival but, after radiation therapy and surgery, his cancer went into remission. This treatment left S.D. with an altered taste sensation. In December 1995, he complained of a sore throat. However, his cancer specialist told him that the cancer had not returned.
[7] During the summer of 1995, S.D., through his close friend E.S., met and commenced a relationship with S.K. who lived in Toronto. The relationship was primarily a long-distance one, and did not work out. S.K. found the relationship frustrating because S.D. was still preoccupied with the appellant. She broke up with S.D. shortly before his death in December 1995.
The appellant’s purchase of a new home
[8] After breaking-up with G.D. in mid-1994, the appellant commenced a relationship with N.F. whom she met through a personal ad in mid-1995. N.F. moved in with the appellant and helped care for the children.
[9] In early November 1995, with N.F.’s help, the appellant made a $2,000 down payment on the purchase of a house at 1[..] Street in Killaloe. The sale price was $55,000. The closing date was originally scheduled for the end of November but was later delayed to January 16, 1995 at the vendor’s request. The appellant told her real estate agent that she expected to inherit the farm from her husband, who was dying of cancer. She told her mortgage broker a similar story, that her husband was dying of cancer and that their farm was owned jointly.
S.D.’s death
[10] The Crown’s theory is that on December 28, 1995, S.D. went to the appellant’s house where she gave him a 1.5 litre bottle of Piat d’Or white wine laced with antifreeze. According to the Crown, that night the appellant induced S.D. to drink the wine during a long telephone conversation that lasted, with some interruptions, from 7:00 or 9:00 p.m. until 4:00 a.m. in the morning.
[11] S.D. was supposed to pick up the children at 5:00 p.m. the following day – December 29, 1995 – from the appellant’s house. When he failed to do so, the appellant called the farm but there was no answer. G.D., who was visiting at the time, offered to go to the farm to find S.D. At the farm, the Christmas lights were on and there may have been a floodlight on outside. The house was otherwise dark. Inside, G.D. heard a record spinning on a turntable, but she could not find S.D. G.D. returned to the appellant’s house, enlisted the help of two friends and returned to the farmhouse. Inside, they noticed a bottle of wine next to the phone and a glass containing an oily, bright yellow/green liquid. They also observed three pages of handwritten notes next to the phone. Upstairs, they found S.D. dead on the floor in his son’s bedroom wearing nothing but a sweater. The time of death was later estimated to be 6:00 a.m. on December 29, 1995.
[12] Although the police assumed that S.D.’s death was a suicide, the coroner erroneously found the cause of death to be a rupture of a cancerous tumour in S.D.’s mouth. The appellant made efforts to have S.D. cremated. However, upon the insistence of S.D.’s family, a post-mortem was performed. The post-mortem revealed that S.D. died of ethylene glycol poisoning. S.D. was in good health at the time of his death, and there were no signs of a return of his cancer.
[13] Ethylene glycol is a colourless and odourless liquid with a sweet or bittersweet flavour. Automotive antifreeze is 85 to 90 per cent ethylene glycol, and has fluorescent dyes added to it. Antifreeze is miscible in white wine, but after a period of time, a precipitate develops and settles to the bottom of whatever container it is in.
[14] Expert testimony established that it would take three-and-a-half ounces of 100 per cent ethylene glycol to kill an individual weighing seventy-five kilograms. The poisoning would progress in three stages. During the first twelve hours, the victim experiences inebriation, similar to drunkenness. Most deaths occur during the second stage, between twelve and twenty-four hours after ingestion when the victim experiences rapid breathing and heart rate, drowsiness, and coma. If the victim survives, he or she will move on to the third stage, at twenty-four to seventy-two hours, characterized by kidney failure.
The statements and death of N.F.
[15] For a year and a half after S.D.’s death, the police considered it to have been a suicide. That changed after N.F. and the appellant broke up in March 1997, at which point N.F. approached the police and gave several statements implicating herself and the appellant in the murder of S.D.
[16] On August 19, 1997, N.F. died in a suspicious fire at her apartment. The Crown’s theory is that the appellant seduced a sixteen-year-old boy, B.C., and persuaded him to set the fire that killed N.F. The pair was charged with first-degree murder. B.C. was convicted in 2001. The appellant awaits trial on the same charge.
[17] The trial judge excluded N.F.’s out-of-court statements to the police as inadmissible hearsay on the ground that they were not reliable, particularly in light of N.F.’s high degree of animosity towards the appellant following their break-up.
The appellant’s arrest and trial
[18] On December 27, 1997, the appellant was arrested and charged with S.D.’s murder. While in custody, the appellant made incriminating statements to a fellow inmate, Brandy Cameron, which were admitted at trial.
[19] The appellant did not testify at trial but she did make two statements to the police, the first on December 30, 1995, immediately after S.D.’s death and the second on April 22, 1997, after the investigation into S.D.’s death was reopened. Both statements were admitted at trial. The appellant denied murdering S.D. or giving him wine laced with antifreeze.
[20] In February 2001, after a twenty-six day trial, Chadwick J. delivered lengthy reasons for judgment convicting the appellant of first-degree murder.
ANALYSIS
(1) Was the verdict unreasonable and did the trial judge misapprehend the evidence?
[21] In their forceful and effective argument before this court, Mr. Phillip Campbell and Mr. Dawe submitted that the verdict of guilty of first-degree murder was unreasonable. They say that, viewed through the lens of judicial experience, the verdict cannot withstand appellate scrutiny. They submit that the Crown plainly failed to establish on the criminal standard of proof that S.D.’s death was a homicide. They contend that the trial judge effectively ignored the physical evidence at the scene of S.D.’s death, which, together with the rest of the evidence, strongly supported the defence suicide theory. They submit that the Crown’s theory that the appellant killed S.D. by poisoning him with antifreeze defies common sense and does not follow from the evidence. In particular, they rely on the following points:
• Antifreeze-laced white wine has obvious defects as a murder weapon, particularly if the intended victim is given the mixture to drink on his own.
• S.D. was known to be a light drinker, and there was no way of ensuring that he would drink the wine when alone.
• Ethylene glycol is a slow-acting poison, allowing ample time for the victim to seek help or to be discovered. The appellant had no way to prevent S.D. from seeking medical help once he started to experience toxic symptoms.
• The concoction had a distinctly yellowish-green colour and a viscous texture. It was obvious to the police and others who found S.D., as it would have been obvious to S.D. himself, that the liquid he consumed was not unadulterated white wine.
• The Crown advanced no plausible explanation as to how S.D. could have failed to notice the wine and antifreeze mixture’s bright green colour.
• Even if S.D. somehow overlooked the strange appearance of the mixture, his would-be killer would have no way of ensuring that he would consume a fatal dose.
• The trial judge apparently relied on the theory – from which the Crown backed away during its closing submissions – that S.D. had been drinking in the dark. Yet as he drank, S.D. wrote a three-page legible note, which would have been virtually impossible to do in the dark.
• The note at the scene referred to “death – suicide”, and the trial judge erred in concluding that it was not a suicide note.
• There was evidence that S.D. had previously suggested that if he ever decided to kill himself, he would do so “by drinking antifreeze”.
• Although he appeared to be in good spirits, S.D. had gone to great lengths to conceal, and even to lie about, his break-up with S.K.
• There were serious gaps in the Crown’s case due to the failure of the police to conduct a thorough investigation at the scene of death. They took no steps to preserve critical evidence, including the wine bottle and its contents, the wine glass, and an LCBO bag found near the telephone on S.D.’s desk. As a result, it was impossible to test the bottle for fingerprints or to see whether the bag contained a receipt indicating when, where, and by whom the wine was purchased.
[22] The appellant also submits that the reasons of the trial judge reveal flawed analysis and misapprehension of the evidence. In particular, she submits that the trial judge erred on the following grounds:
• The trial judge dismissed the possibility of suicide without properly considering the full evidentiary record, thereby effectively reversing the burden of proof and failed to subject the Crown’s homicide theory to the required degree of close scrutiny.
• The trial judge improperly made substantive use of inadmissible hearsay in finding that the appellant gave S.D. the bottle of antifreeze-laced wine.
• The trial judge misapprehended the evidence in a number of key areas, and relied on his mistaken view of the record to make findings central to his determination of guilt. The appellant attaches particular significance to the trial judge’s finding relating to motive derived from the appellant’s plan to fund the purchase of a house from the proceeds of the farm that she expected to receive upon S.D.’s death.
[23] These specific complaints derived from the trial judge’s reasons for judgment are closely integrated with the submission that the verdict was unreasonable, and I will consider them in that light.
(i) Standard of Appellate Review
[24] This court recently reviewed the test to be applied by an appellate court to determine whether a verdict is unreasonable in R. v. Baltovich (2004), 192 O.A.C. 366 at paras. 153-55:
The appellant submits that the jury’s verdict was unreasonable because it depended on shaky eyewitness identification evidence and a Crown theory that was fanciful and contrary to evidence supportive of his innocence.
The test to be applied in determining whether a verdict is unreasonable is clear. The appellate court is to independently examine and assess the evidence and decide whether, on a totality of the evidence, a properly instructed jury, acting judiciously, could have convicted. See, for example, R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.).
In R. v. H.R.T. (2001), 159 C.C.C. (3d) 180 at para. 31 (Ont. C.A.), this court explained the test in these terms:
[T]he question to be asked when determining whether a verdict is unreasonable or unsupported by the evidence is whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. This appellate function requires that this question be asked through the lens of experienced jurists and it requires that the conclusion reached not conflict with the bulk of judicial experience. It is imperative that the Court of Appeal articulate the basis upon which it concluded that the jury reached an unreasonable verdict; it is insufficient for the court to simply express that there is a “lurking doubt”. While vague unease or a lingering doubt may be a signal that the verdict was reached in a non-judicial manner, the court must proceed with an analysis of the evidence to justify interfering with the conviction.
[25] On this standard, a conviction will not be upheld merely by showing that there is some evidence to support the verdict. The appellate court must thoroughly review, analyse and, within the limits of appellate disadvantage, weigh the evidence: see R. v. Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.) at 428-30. On the other hand, it is plainly not our function to retry the case, and we are not entitled to substitute our own view for that of the trial judge: see R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.) at 198-99. An appellate court may only interfere with a verdict if it can clearly “articulate as explicitly and as precisely as possible” a basis for concluding that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence: Biniaris, supra, at para 42. We must accord “great deference” to any findings of credibility by the trier of fact and recognize the great benefit the trier of fact had in actually seeing the witnesses and hearing them give their evidence: R. v. R.W. (1992), 74 C.C.C. (3d) 134 (S.C.C.) at 140-42; and R. v. Francois (1994), 91 C.C.C. (3d) 289 (S.C.C.) at 295-97. As stated by Arbour J. in R. v. A.G. (2000), 2000 SCC 17, 143 C.C.C. (3d) 46 (S.C.C.) at para. 29: “[T]he fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable.”
[26] The standard of review applicable to jury verdicts also applies to the verdict of a judge sitting alone although, as stated by Arbour J. in Biniaris, supra, at para. 37, the trial judge’s reasons may be scrutinized for flaws in the evaluation of the evidence or defects in analysis that may have led to an unreasonable verdict:
The review for unreasonableness on appeal is different ... and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached. ... [I]n trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernible defects are themselves sometimes akin to a separate error of law ... .
[27] The appellant relies on this passage and, as I have already indicated, alleges that the trial judge’s reasons reveal reversible error on a number of points.
[28] For the reasons that follow, I am not persuaded that the trial judge’s verdict was unreasonable in this case. Nor do I agree with the submission that the reasons of the trial judge reveal the errors alleged by the appellant.
(ii) Unreasonable Verdict
[29] I have concluded that, on the totality of the evidence, a properly instructed trier of fact, acting judicially, was entitled to convict the appellant and that the reasons of the trial judge reveal no error or misapprehension of the evidence justifying appellate intervention.
[30] I agree that in many respects the unusual circumstances of S.D.’s death pointed to suicide rather than murder. However, I disagree that suicide was the only reasonable conclusion that could be drawn from the evidence. The conclusion that the appellant murdered S.D. may not have been inevitable, but it certainly was not unreasonable.
[31] We have the advantage of having read the extensive written arguments and having heard oral submissions from both the appellant and the respondent over three full days of argument. All aspects of the evidence adduced at trial have been exhaustively reviewed. I do not intend in these reasons to canvass every detail but will focus on what I see to be the central issues and findings. I have already set out, in broad outline, the basis for the appellant’s submission that suicide was the only reasonable conclusion on the record. I turn here to the evidence and findings that, in my view, support the respondent’s submission that the verdict was not unreasonable.
(a) The appellant’s involvement with S.D. during the night of his death
[32] In her statements to the police, the appellant admitted that on the night of S.D.’s death, she spoke to him in a series of telephone conversations that continued from between 7:00 or 9:00 p.m. to 4:00 a.m. There were striking similarities between the handwritten notes left by S.D. and notes written by the appellant later as seized by the police. These notes suggest a prolonged conversation regarding matters of profound concern to S.D., including their past relationship and their prospects for the future. At a point late in their conversation, the appellant apparently told S.D. that he could “let go now” and that her “guardian angel” would “take him to heaven”, indicating that she knew he was dying. Indeed, the appellant does not challenge as unreasonable the trial judge’s conclusion that the appellant knew that S.D. was drinking a poisonous concoction that would lead to his death:
The only inference I can draw when I look at all of the evidence is that C.D. knew the wine S.D. was drinking was laced with antifreeze, and that the effects of drinking the lethal cocktail would be death. Starting early in the evening and continuing off and on until 4:00 o’clock the next morning, C.D. encouraged S.D. to drink the wine. Even though it was not characteristic for S.D. to consume so much alcohol, and even when he was retching and sick, she did not intervene.
[33] There was also evidence that the appellant knew S.D. was dead before his body was discovered. The appellant told G.D. while they waited for S.D. to pick up the D. children on the afternoon following his death that she had had one continuous conversation with him the night before, during which he told her that he had received a drastic medical report and that his death was imminent, and also confessed to sexually abusing the children and to several affairs with other women. When S.D. did not appear to collect the children, G.D. offered to go to the farm to see if he was there. At some later date, A.D. overheard the appellant say to N.F. that she knew exactly what G.D. would find when she got to the farm to look for S.D. This evidence provides further support for the trial judge’s finding that the appellant was implicated in S.D.’s death.
[34] In oral argument, counsel for the appellant suggested that, even if his client was aware on the night of his death that S.D. was consuming a fatal dose of wine laced with antifreeze, this could still be consistent with the defence suicide theory. This submission seems to require a scenario where the appellant comforted S.D. as he took the difficult step of poisoning himself. The difficulty is that this submission is not supported in the evidence. In her statements to the police, to G.D., and to S.D.’s family and friends, the appellant sought to distance herself from being implicated in his death. Had she testified at trial and admitted to assisting S.D. to commit suicide, the result may well have been different. However, without an explanation to that effect from the appellant, it was reasonable for the trial judge to treat the appellant’s night-long conversation with S.D., as evidence that, together with the rest of the evidence, established her guilt for murder.
[35] I would add here that it is a well-established proposition that, when considering the reasonableness of a verdict, an appellate court is entitled to treat an appellant’s silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: R. v. Corbett (1973), 14 C.C.C. (2d) 385 (S.C.C.) at 387-88; R. v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.) at 428-29; R. v. Rowley and Currie (1999), 140 C.C.C. (3d) 361 (Ont. C.A.) at paras. 19-21; R. v. Wang and Lo (2001), 153 C.C.C. (3d) 321 (Ont. C.A.) at para. 44.
(b) The appellant’s inculpatory jailhouse statements
[36] Following the appellant’s arrest for the murder of S.D., she was incarcerated in the same regional detention centre as Brandy Cameron. According to Cameron, on one occasion, while sharing some hashish with the appellant and talking about “why [they] were there”, the appellant told Cameron that she was in jail for the murder of her husband, and “that he had been poisoned with antifreeze”. The appellant explained that she “put antifreeze in his wine” and that it had happened at the farmhouse. The appellant said that she “had” to do it because he was “dying anyways”. He had “some form of cancer” and the appellant just decided that she would “just help him on his way”. The appellant went on to explain that she “talked to someone about antifreeze”, and had been told that it was a “quite painless” death, in that the liquid tasted “sweet” and that its effects “wouldn’t take long”. The appellant also told Cameron that “her girlfriend” had provided the police with a “video statement” and, accordingly, she “had to be taken care of”. “[T]here was a fire set”, and the girl had died.
[37] Cameron also testified that on a subsequent occasion, she and the appellant talked more about the fire. The appellant told Cameron that she had a “boy ... who would do anything for her”. The appellant referred to him as her “prince” and said that he would “take care of everything” she needed. The appellant led Cameron to believe that this boy had been the one to actually set the fire, and indicated that she really had “no other choice”.
[38] Cameron provided the police with this information approximately three months before the arrest of B.C. and eleven months before the appellant’s own arrest for the murder of N.F. Therefore, much of the information provided by Brandy Cameron, at least in relation to the killing of N.F., had no realistic potential source other than the appellant.
[39] The trial judge assessed Cameron’s evidence against the criteria outlined in R. v. Brooks (2000), 2000 SCC 11, relating to the dangers of jail-house informers, and accepted it, noting that much of it was corroborated by other facts. I agree with the respondent’s submission that the trial judge committed no error in accepting Cameron’s evidence.
[40] Cameron’s evidence clearly supports the trial judge’s verdict of guilty to first-degree murder.
(c) The appellant’s lies regarding S.D.’s impending death from cancer
[41] There was compelling evidence that S.D.’s cancer was in remission and that the appellant had no reason to suspect that he was threatened with imminent death from his disease in the month before his death from poisoning. At the same time, there was considerable evidence that the appellant told a variety of individuals, before and after S.D.’s death, about his allegedly deteriorating medical condition and impending death from cancer:
• The appellant told those concerned in the purchase of 1[..] Street that her husband was dying of cancer and that she would inherit the farm.
• On December 29, 1995, while waiting for S.D. to pick up the children, the appellant told G.D. that, during her conversation with S.D. the previous evening, S.D. told her that his doctor’s most recent report had been “drastic”, and that his death was “at hand, practically within the next few days”.
• In her December 30, 1995 statement to the police, immediately after S.D.’s death, the appellant asserted: that (1) in the late summer or early autumn, he became convinced that his cancer was back because he was “getting bumps” and was “getting sick”; (2) that shortly thereafter, she went with him to see a doctor at the “Cancer Clinic” in Ottawa, but the doctor said that he “couldn’t tell” yet whether the cancer had returned; (3) that when S.D. finally returned to the doctor in Ottawa, the doctor told him that “the cancer was back” and that there “wasn’t anything they could do” to help him as he had already “had all the radiation treatments he could have”; and (4) that sometimes S.D. “would get really depressed when he got really sick”.
• The same day that she gave this statement to the police, the appellant told S.D.’s sister that the last time he went to see his “cancer doctor” he got a “bad report” and was told that “he was not going to make it”.
• The appellant asserted that S.D. had convened a meeting with the appellant, his friend E.S., and A.D. and told them all that “he wanted it kept secret” and that they created a “secret pact”, a story denied by both E.S. and A.D.
• In her second statement to the police, given in April 1997, the appellant gave a slightly different version of the “secret pact” story. She said that S.D. had told her that he was dying of cancer and sworn her to secrecy, and that she found out at his funeral that he had also told E.S. his cancer was back and sworn her to secrecy as well.
[42] I see no basis upon which we could interfere with the trial judge’s finding that the appellant lied about S.D.’s medical condition, his belief that he was dying and resulting depression, and about the “secret pact”. The trial judge drew a reasonable inference that the appellant “wanted everyone to believe that S.D. had died of cancer, not poisoning”. In my view, it was not unreasonable to further infer from this, together with the balance of the evidence, that the appellant murdered S.D.
(d) The appellant’s unusual interest in anti-freeze poisoning
[43] As the trial judge observed, the poisonous effects of antifreeze were “more than a passing interest” to the appellant. There was a considerable body of evidence that she made a point of investigating the subject:
• In February 1987, a foster child in the care of S.D. and the appellant ingested radiator antifreeze, and the appellant took him to the hospital where she received treatment instructions in case it happened again.
• In October 1995, the appellant’s cat was poisoned with antifreeze and had to be euthanized. Her neighbour, K.K., testified that later that evening the appellant asked why the cat would like the taste of antifreeze and was told by K.K.’s husband, R.K., who had taken the cat to the veterinarian, that it had a sweet taste and, if mixed with orange juice or wine, it could not be tasted. During the same conversation, the appellant wondered aloud “how much antifreeze it would take to kill a human”.
• A.D. testified that she had overheard the appellant make a telephone call to poison control authorities and ask how much anti-freeze it would take to kill a person.
• There was also evidence that the appellant had anti-freeze in her possession.
• There was evidence that the appellant tried to conceal her knowledge of antifreeze poisoning when she learned that the police had reopened their investigation into S.D.’s death. She told K.K. not to tell the police about the incident involving the cat and antifreeze, and told her to also tell R.K. not to say anything.
[44] In my view, the trial judge was entitled to consider this evidence as pointing to the guilt of the appellant. It provides further grounds for dismissing the argument that the verdict was unreasonable.
(e) Evidence that the appellant hated S.D. and wanted him dead
[45] There was a considerable body of evidence to support the trial judge’s finding that, from 1992, the appellant hated S.D. and “wished him dead”:
• The D. were involved in a bitter custody dispute and the appellant coached the children to make false accusations of sexual assault against S.D. By 1994, S.D. had effectively gained legal custody and control over the appellant’s access to the children. The trial judge found: “The only way C.D. could regain sole custody of her children was to get rid of S.D.”
• The appellant told K.K. that S.D. was an abusive father, that she “hated him”, that she wished that he was dead, and that his cancer would “hurry up and kill him”.
• Although the appellant spoke kindly to her husband, in his absence she would state that she “loathed” him and that she “wished he was dead”.
• K.K. testified that on one occasion, out of frustration over the farm and access to the children, the appellant asked where she could hire “a hit man” to “get rid” of S.D.
• R.K. testified that the appellant expressed hatred towards S.D. and stated that she “would like to kill him”.
• G.D. testified that the appellant made a voodoo doll representing S.D. and performed death rituals with it.
[46] The trial judge was entitled to consider this evidence as demonstrating that the appellant had an animus towards S.D. and, hence, a motive to kill him.
(f) Financial motive for murder
[47] There was strong evidence that the appellant had a financial motive for murdering S.D. The appellant had very little money and, immediately before S.D.’s death, her only income came from disability benefits of $930 per month. In the hope of reconciliation, S.D. had put title to the farm in joint tenancy so that the appellant would acquire sole title upon his death. In June 1995, the appellant became interested in buying a house in Killaloe. She told the real estate agent that her husband was dying of cancer and that she would soon inherit the farm that she owned jointly with him.
[48] The significance of this evidence is appropriately considered together with the appellant’s submission that the trial judge misapprehended the evidence relating to the house purchase, to which I now turn.
(iii) Misapprehension of the Evidence
(a) Purchase of 1[..] Street
[49] The appellant submits that the trial judge seriously misapprehended the evidence relating to the appellant’s purchase of 1[..] Street. This argument hinges upon the following passages from the reasons for judgment at paras. 109 and 325-26:
[The appellant’s] actions in purchasing 1[..] Street on the basis of S.D. dying and leaving her the farm confirms her need for his death. She had no other assets other than the farm. She needed the complete farm, not 50%, in order to carry out her plans. Although N.F. had some funds, they were not sufficient for this transaction. The sale of the farm was the only matter outstanding in their matrimonial litigation. In order to get the farm, S.D. would have to die as the farm was held in joint tenancy.
At the time of S.D.’s death, [the appellant] had entered an agreement of purchase and sale for 1[..] Street. She told everyone involved that S.D., her husband, was dying of cancer, and that the proceeds from the sale of the farm would be used to purchase 1[..] Street. The closing date was extended until January 16th, 1996.
[S]he needed the proceeds of the farm in order to purchase 1[..] Street since she had no other assets and she was on public assistance.
[50] The appellant arranged financing to purchase the house and, in fact, she was able to close the purchase transaction without the proceeds of sale from the farm. The appellant submits that the trial judge erroneously reasoned that the appellant could not actually complete the purchase without the proceeds from the farm and that she had to kill S.D. to close the transaction.
[51] By themselves, the quoted passages from the trial judge’s reasons might be read in the manner urged upon us by the appellant. However, the reasons must be read in their entirety, in the context of all the evidence and the positions taken by the parties at trial. There was no doubt that the appellant was able to borrow the funds to purchase 1[..] Street. The trial judge heard testimony that the appellant had mortgage financing in place and that the transaction closed on schedule in January 1996. At no point did the trial judge expressly say that the appellant needed the proceeds from the sale of the farm to close the transaction. To the contrary, he stated that the appellant required the farm proceeds “to purchase” the Mill Street property.
[52] It was clear that the appellant’s resources were very tight, and it was not unreasonable for the trial judge to find that her plan was to pay for the Mill Street property from the farm proceeds that she would receive upon S.D.’s death. The appellant openly told her real estate agent and G.D. that she was going to pay for 1[..] Street by selling the farm after S.D.’s death. The fact that she had arranged the financing necessary to close the transaction was not inconsistent with a long-term plan of paying for 1[..] Street using the proceeds from the sale of the farm.
[53] I conclude that, on the evidence, the trial judge was entitled to find a direct link between the purchase of 1[..] Street and the murder of S.D. and that there is no misapprehension of the evidence sufficient to warrant appellate intervention.
(b) Rejection of the suicide theory
[54] The appellant submits that the trial judge erred in rejecting the defence suicide theory by ignoring evidence that supported suicide and by failing properly to apply the criminal burden and standard of proof. I have already outlined the facts relied on by the appellant as pointing to suicide rather than murder. The appellant complains that the trial judge erred by: (1) effectively ignoring the physical circumstances surrounding S.D.’s death; (2) finding that the note S.D. left was not a “suicide note”; and (3) placing excessive and unwarranted reliance on the evidence of S.D.’s friends and family that he was neither depressed nor suicidal.
[55] I do not agree with the submission that the trial judge failed to assess the Crown’s case against the physical evidence. He carefully reviewed the evidence of the crime scene, noting the defence suicide theory and describing the evidence as “puzzling”. I am satisfied that a fair reading of the trial judge’s reasons indicates that he was completely alive to the defence theory. The physical evidence of suicide could not be viewed in isolation. It had to be weighed together with the evidence pointing to murder that I have already reviewed.
[56] I also do not accept the submission that the trial judge arrived at his verdict “by process of elimination” when he stated that he was satisfied beyond a reasonable doubt that S.D. did not commit suicide but rather was murdered. I see nothing in his reasons to indicate that his rejection of suicide was based on anything other than his assessment of the evidence as a whole. He was obliged in law to consider whether the possibility of suicide raised a reasonable doubt, and he concluded that it did not. As I have already stated, on the entirety of this record, that conclusion may not have been inevitable, but it certainly was not unreasonable.
[57] The note S.D. left was ambiguous. It mentioned death and suicide and, in other circumstances, those words might well be read as a suicide note. However, the note had to be read as a whole. Most of it did not read like a suicide note. Certain passages sounded hopeful and appeared to refer to a possible reconciliation with the appellant. I cannot say that in the circumstances of this case the trial judge’s finding that it was not a suicide note was unreasonable.
[58] There was a substantial body of evidence that S.D. was not suicidal. The appellant points to the fact that S.D. concealed his break-up with S.K. and complains that the trial judge should have placed weight on this fact. Against that argument is the evidence that S.D. did not consider his relationship with S.K. to be entirely satisfactory, and S.K.’s evidence that he took the break-up well. She called him a very strong person capable of getting on with his life. I cannot agree that, on this record, it was unreasonable for the trial judge to find that S.D. was not suicidal.
[59] In my view, there is no basis for appellate intervention on the ground that the trial judge gave insufficient weight to or improperly rejected the defence suicide theory.
(c) A.D.’s evidence
[60] In oral argument, the appellant abandoned the submission that the trial judge erred by considering A.D.’s reading difficulties as enhancing her credibility. It was open to the trial judge to accept her evidence, and there is no basis upon which we could interfere.
(iv) Conclusion: Unreasonable Verdict and Misapprehension of Evidence
[61] For these reasons, I conclude that the appellant has failed to demonstrate that the verdict was unreasonable or that the trial judge misapprehended the evidence. Accordingly, I would not give effect to this ground of appeal.
(2) Other alleged errors
(a) Improper reliance on hearsay evidence
[62] The appellant submits that the trial judge erred by relying on hearsay statements from N.F. and S.D. to establish that the appellant gave S.D. a bottle of wine the day before he died. I do not agree. The impugned passage from the trial judge’s reasons, para. 158, reads as follows:
It is not clear how [the appellant] mixed the antifreeze with the wine and gave the bottle to S.D., however, I note that he had been at [the appellant’s] house earlier that evening. This is based on statements of N.F. and S.D., which would be hearsay, but this was the belief of [the appellant] as reflected in her statements to the OPP.
[63] I see no error. The appellant admitted to the police that S.D. had been at her house earlier that evening, and the trial judge was entitled to accept that fact without necessarily accepting the appellant’s further statement to police that she was asleep at the time. Without resort to the hearsay statements of N.F. and S.D., the trial judge was entitled to infer from S.D.’s presence at the house an opportunity for the appellant to provide him with the bottle of wine.
(b) Improper use of the appellant’s out of court statements
[64] In oral argument, the appellant abandoned the submission that the trial judge erred in relying on certain false statements made by the appellant to the police as reflecting “consciousness of guilt”. I agree that while the trial judge did find a number of falsehoods in the appellant’s out of court statements, he did not improperly use those falsehoods as evidence of “consciousness of guilt”.
(3) Disclosure Motion
[65] The appellant applies for disclosure of hitherto undisclosed information in the possession of the Crown and a new trial pursuant to the s. 24(1) remedial principles established in R. v. Dixon (1998), 122 C.C.C. (3d) 1 (S.C.C.).
[66] The respondent resists this application on the ground that the information relates to a confidential informer and is therefore privileged and not subject to disclosure. Pursuant to the procedure contemplated by R. v. Leipert (1997), 112 C.C.C. (3d) 385 (S.C.C.) at para. 33 and R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.) at para. 63, the respondent filed a detailed record and factum under seal for the court’s consideration. The appellant did not have access to this responding material. In oral argument, counsel for the appellant abandoned the objection to this procedure and made their submissions without the advantage of seeing the responding materials filed to support the claim of privilege.
[67] At the hearing of the disclosure application, we were faced with a number of difficult issues concerning the media and in camera proceedings. We are grateful to counsel for their skill and assistance in tailoring their submissions in a way that minimized the need to proceed in camera. There is a presumption that all judicial proceedings will be held in open court. The open court principle is reflected in the Charter of Rights and Freedoms (ss. 2(b) and 11(d)), in the Criminal Code (s. 486(1)), and in the case law: Attorney General of Nova Scotia v. McIntyre, [1982] 1 S.C.R. 175 at 187; Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332 at paras. 23-31. This strong presumption will not be displaced lightly: R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at paras. 36-39. At the same time, the confidential informer privilege is a legal rule of public order “of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations”: Leipert, supra, at para.12; Bisaillon v. Keable, [1983] 2 S.C.R. 60 at 93.
[68] Counsel for both parties consented to go in camera. When we reached the point in argument where counsel could no longer make submissions without public disclosure of some of the information over which a claim of privilege was asserted, pursuant to Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289 (S.C.C.) at 310-11 and R. v. K.S.Y., [2001] O.J. No. 3207 (Ont. C.A.) at paras. 8-10, before proceeding in camera, we ordered that the media be notified.
[69] Counsel for The Globe and Mail and the Toronto Star appeared in response to that notice. At that point, it was not clear to us that we could publicly reveal the nature of the issue that confronted us without destroying the privilege claim, and we therefore made the following order:
We are prepared to disclose to counsel for the media representatives the legal category within which the disclosure issue arises, provided that counsel make an undertaking that they will not disclose this information to anyone, including their clients, pending further order of the court.
The reason for this order is to enable counsel for the media to receive information to consider whether to make submissions on whether the hearing on this issue should proceed in camera.
[70] Peter Jacobsen, counsel for The Globe and Mail, indicated that he was instructed to give the undertaking. Tony Wong, counsel for the Toronto Star, informed the court that his client was not prepared to authorize him to give the undertaking. He proposed that the information be disclosed to himself and one senior representative of his client. Mr. Jacobsen supported this suggestion. We ruled as follows:
We do not accept the Toronto Star’s position. Given the nature of the interests involved, it is our view that the information should be disclosed only to counsel as officers of the court. In our view, this procedure permits the media representatives to make those submissions they consider appropriate regarding the limited issue of whether this motion should be heard in camera.
[71] We then entertained, in camera, Mr. Jacobsen’s very helpful submissions as to how we might minimize the extent of the in camera part of the hearing. We heard, as well, from counsel on the appeal as to how they might frame their arguments. Counsel for the respondent agreed to rely solely on his written submissions. Counsel for the appellant agreed to tailor his oral submissions to argue as much as possible in a general way and, when he determined that he could not proceed further without jeopardizing the asserted privilege, he would notify the court. Following these submissions, we ruled as follows:
Having heard submissions on the point, we have now concluded that, applying the principles articulated in Dagenais (S.C.C.) and Mentuck (S.C.C.), it can now be said in open court that there is an issue on this appeal involving a claim of confidential informer privilege, and that the appropriate order is as follows:
(1) the portion of the argument dealing with general legal principles pertaining to the scope and limits of the privilege should be made in open court, but
(2) any argument concerning the application of those principles to the particular facts and circumstances of the present case that could reveal the identity of the alleged confidential informer should be heard in camera.
We are satisfied that this order minimally impairs the open court principle and the media’s s. 2 Charter rights, as nothing short of proceeding in camera to the extent that we have ordered will prevent a serious risk to the proper administration of justice.
[72] I will follow the spirit of that ruling in stating my reasons for dismissing the appellant’s disclosure application. Unfortunately, my reasons are necessarily brief and conclusory, as I find it impossible to say more without disclosing some of the very information I find to be privileged.
[73] On the basis of the material filed on this application and the submissions we have heard, there is no doubt in my mind that the respondent has demonstrated that, in fact and in law, the information for which disclosure is sought by the appellant is protected by the confidential informer privilege. Assuming, without deciding, the validity of the appellant’s argument that, as a matter of law, the privilege does not attach to deliberate attempts to mislead the police, on the facts of this case, there was no attempt by the informer to mislead the police, and the privilege would not be defeated on that ground. I am also persuaded that the “innocence at stake” exception has no application on the facts of this case and therefore does not apply to the benefit of the appellant.
[74] Accordingly, I would dismiss the appellant’s disclosure application.
(4) Fresh Evidence Application
[75] The appellant applies pursuant to s. 683(1)(d) of the Criminal Code to introduce fresh evidence on appeal relating to K.K., an important Crown witness at trial. K.K. testified as to the appellant’s interest in and knowledge of antifreeze poisoning, her animosity towards S.D., and her desire to see him dead. She generally characterized the appellant as manipulative and untrustworthy and also testified as to the appellant’s efforts to hide her knowledge of antifreeze poisoning after S.D.’s death. The trial judge found K.K. to be “confident and definite”, and he accepted her evidence.
[76] The appellant seeks to introduce fresh evidence to the effect that after the trial, K.K. made a false allegation to the police that the appellant had offered Kitten Keyes, a fellow inmate, money to kill or harm K.K.. The appellant submits that, if admitted, this evidence would seriously undermine K.K.’s credibility and demonstrate a strong animus towards the appellant that would lead the trier of fact to question or reject her evidence.
[77] The fresh evidence material consists of the affidavit of a legal assistant with no direct knowledge of the facts, annexing an unsworn, handwritten statement by Kitten Keyes and a copy of a Crown brief prepared by the police in relation to K.K.’s conspiracy to murder complaint. The Crown brief contains a transcript of a videotape interview of Kitten Keyes taken under oath, as well as police notes, unsworn witness statements and “willsays” from K.K. and other witnesses, prison records, a transcript of a polygraph interview of Keyes, Keyes’ criminal record, and other documents.
[78] Two fundamentally different versions of the events emerge from the Crown brief. According to K.K., in late fall 2001, Kitten Keyes told her that, when she and the appellant were in jail together, the appellant offered Keyes $5,000 to “take out” or “cause harm” to K.K. and her family because K.K. had testified against the appellant at her trial. Keyes considered the offer but decided not to carry out the appellant’s plan. K.K., already afraid of the appellant, went to the police and asked to be placed in the Witness Protection Program and to be given other assistance.
[79] According to Kitten Keyes, there was never any conspiracy between her and the appellant to have K.K. killed or hurt, and K.K. invented the whole story in order to gain admission to the Witness Protection Program. K.K. tried to enlist Keyes to assist her in providing this story to the police, but Keyes refused.
[80] The test for admission of fresh evidence on appeal is well known: see Palmer v. R. (1979), 50 C.C.C. (2d) 193 (S.C.C.). The applicant must show that the evidence:
(1) could not have been adduced at trial through due diligence;
(2) is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) is reasonably capable of belief; and
(4) when taken with other evidence at the trial must reasonably be expected to have affected the result.
[81] The appellant submits that all four branches of the Palmer test are satisfied. Obviously, the evidence could not have been adduced at trial. The fresh evidence is plainly relevant to K.K.’s credibility, especially insofar as the appellant is concerned, and K.K. was an important crown witness. The appellant concedes that Keyes’ serious criminal record makes her an unsavoury witness, but submits that the accuracy of Keyes’ version is supported by other evidence and is reasonably capable of belief. Finally, the appellant submits that, as this was at best a close case, calling K.K.’s evidence into question could reasonably be expected to have affected the result at trial.
[82] The respondent takes no issue with the first criterion, but submits that the evidence fails to satisfy the remaining three branches of the Palmer test. The respondent further submits, for the first time in its factum on the fresh evidence issue filed shortly before oral argument, that the evidence is not in an admissible form and that it should be rejected on that ground as well.
[83] In my view, the fresh evidence application should be dismissed. I agree with the respondent that the evidence is not admissible, and even if it were, I find it to be unreliable and unpersuasive and conclude that it fails to satisfy the third and fourth branches of the Palmer test.
[84] R. v. O’Brien (1978), 35 C.C.C. (2d) 209 (S.C.C.) at 216-17 holds that evidence tendered as fresh evidence on appeal must satisfy the ordinary requirements for admissibility. Dickson J. stated:
It is a prerequisite that any evidence sought to be adduced under the discretion granted by that section [now s. 683(1)(d)] be admissible evidence. The section manifestly does not authorize a Court of Appeal to dispense with the law of hearsay evidence. If that were so we would have an anomalous situation in which counsel could seek to adduce on appeal that which the common law prohibits at trial. The section is not operative until the threshold for admissibility as defined by common law and statute is crossed. That threshold has not been crossed in the instant case.
[85] Most of the material in the Crown brief relied upon by the appellant is unsworn, inadmissible hearsay. The appellant submits that Keyes’ sworn videotaped statement is not hearsay. I disagree. That statement was given at another time for another purpose; indeed, it was given when Keyes was the subject of an investigation for conspiracy to murder K.K. It is not evidence sworn for the purpose of this appeal. Requiring an affidavit sworn in the particular proceeding offering first hand evidence is not a mere formality. It appropriately directs the mind of the witness to the precise reason for which the evidence is offered and provides a means whereby the responding party can test the evidence by way of cross-examination. A statement given under oath at another time and for another reason does not satisfy these important safeguards.
[86] I intend no criticism of the appellant’s counsel. It is apparent from the record that they made a serious effort to have Keyes swear an affidavit in this appeal. Despite their best efforts, Keyes refused to do so. Keyes’ behaviour in relation to this appeal strongly suggests that the appellant cannot count on her testimony at a new trial. In the end, the fresh evidence record leaves me in considerable doubt about what Keyes might or might not say. In my view, it would be inappropriate to order a new trial on a speculative view of the fresh evidence. It was open to the appellant to seek an order pursuant to s. 683(1)(b) of the Criminal Code to compel Keyes’ attendance before this court and, if she refused to answer or if she recanted, to apply to have the videotaped statement admitted under the principled approach to hearsay evidence. Without these steps, we are not in a position to know or assess the precise basis upon which we are being asked to make an order for a new trial.
[87] I do not, however, decide the fresh evidence application on this ground alone, for two reasons. First, the respondent’s objection to the admissibility of the evidence was not made known to the appellant until the respondent’s fresh evidence factum was filed shortly before oral argument. The respondent had the fresh evidence application for more than a year and, in my view, should have made its position known much earlier. Second, even if I were prepared to hold that this evidence meets the formal threshold, I would give it little weight, and I do not believe that it satisfies the third and fourth branches of Palmer.
[88] The reliability of the evidence is seriously attenuated by Keyes’ lengthy criminal record of more than sixty convictions over twenty-one years, a record that includes convictions for several offences involving dishonesty and disrespect for the administration of justice. Keyes has demonstrated a complete disregard for authority and for the legal process. One would have to exercise extreme caution before accepting her evidence.
[89] Nor am I satisfied that, if admitted, the evidence could reasonably be expected to affect the trial result. It relates to disputed events that transpired long after the trial and bears upon the credibility of a Crown witness rather that upon a specific factual element in the case against the appellant. K.K. was not the only witness to testify about the appellant’s knowledge of antifreeze poisoning and her hatred of S.D. and, in some respects, her testimony was corroborated by other evidence.
[90] In light of all the weaknesses in the fresh evidence application, both formal and substantive, I conclude that the materials tendered by the appellant could not reasonably be expected to cause a trier of fact to arrive at a different result. Accordingly, I would dismiss the fresh evidence application.
(v) Admissibility of N.F.’s Statements.
[91] The respondent raised as an additional issue on appeal the admissibility of N.F.’s statements to the police. The respondent submits that, in the event that we should be inclined to allow the appeal, we should find that the trial judge erred in excluding N.F.’s statements and either dismiss the appeal or order a new trial instead of an acquittal. As I would not allow the appeal, it is unnecessary for me to consider this additional issue.
CONCLUSION
[92] For these reasons, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”