DATE: 20060120

DOCKET: C39825

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GOUDGE and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

John Collins for the appellant

(Respondent)

• and -

JAMES LOUGHLIN

Christine Bartlett-Hughes for the respondent

(Appellant)

Heard: December 1, 2005

On appeal from the conviction entered by Justice J. David McCombs of the Superior Court of Justice sitting with a jury on October 25, 2002.

SIMMONS J.A.:

[1] The appellant appeals from his conviction for first degree murder following a trial before McCombs J. sitting with a jury.

[2] On September 23, 2001, the appellant’s wife was found dead in their apartment, in the bathtub, with a purple hairband around her neck. Medical evidence at trial indicated that she died as the result of a drug overdose, but also disclosed the presence of a blunt force injury to the back of her head and bruises and an abrasion on her neck consistent with an asphyxial event.

[3] The appellant raised several issues on appeal; however, we called on the Crown only in relation to two issues. First, did the trial judge err in instructing the jury that if they accepted the evidence of the witness Trevor Shilston concerning his observations of the appellant during the afternoon of September 23, 2001 then Mr. Shilston’s evidence “strongly” supported a finding of planning and deliberation. Second, did the trial judge err in his instructions to the jury concerning motive.

[4] For the reasons that follow, I would dismiss the appeal.

I. Background

[5] The position of the Crown at trial was that the appellant force-fed an antidepressant drug (Nortriptyline) to his wife, and that he planned to disguise her death as a suicide. In support of its position, the Crown relied on contradictory statements made by the appellant following his wife’s death, testimony of neighbours undermining the innocent character of the appellant’s final statement to the police, pre-mortem conduct of the appellant that the Crown claimed was aimed at creating a suicide disguise and/or an alibi, forensic and medical evidence relating to the cause of death, and evidence of the deceased’s emotional state.

[6] In particular, the Crown adduced evidence that immediately following his wife’s death, the appellant told his father and a 911 operator that his wife had hanged herself. In addition, in a September 23, 2001 videotaped statement to the police, the appellant said that his wife had been talking a little crazy lately and that, on either the previous Thursday or Friday evening, she had said she wanted to kill herself. Further, the property manager of the couple’s apartment testified that, two days after his wife’s death and well before the toxicology report was available, the appellant had told her that his wife had taken too many pills.

[7] On September 27, 2001, the appellant provided a videotaped statement to the police in which he claimed that he and his wife had fallen while showering together. He said that she hit her head on the tub and that, at that point, he went to his father’s apartment and asked his father to come to his apartment and help him.

[8] In addition to the appellant’s contradictory statements, the Crown relied on testimony from the appellant’s neighbours as establishing the sequence of events and providing circumstantial evidence of what had happened. Phyllis Batchelor was the appellant’s neighbour from across the hall. She and her daughter, Lynda Nye, were returning to Mrs. Batchelor’s apartment on September 23, 2001. Ms. Nye testified that, as they walked down the hall, she heard a scraping noise that sounded like furniture being moved along an uncarpeted floor. The noise lasted intermittently for a minute or two. She stopped outside the air vent that led into the appellant’s apartment and, at 3:30 p.m., heard a woman’s voice screaming and yelling, “I love you” and “please don’t do this”. The voice sounded frightened and afraid.

[9] Mrs. Batchelor testified that she had heard screaming as soon as they got out of the elevator. The screaming became louder as they approached the appellant’s apartment. Throughout the screaming, there was also the sound of something scraping or rubbing. She later identified this sound as the sound that a body makes when in the bathtub. Through the vent atop the appellant’s apartment, she heard a woman’s voice say, “I love you. Don’t do this.” The voice sounded like it was under stress. She also heard the woman say, “Get out. Get out.”

[10] Dorine Currell lived directly below the appellant and the deceased. Shortly after 3:35 p.m. on September 23, 2001, she heard a loud thud from directly above her while playing jazz in her living room. She then heard three or four more thuds, not as heavy as the first, coming from the bedroom area above her. Next, she heard a “shrilling scream” in a woman’s voice, followed by a high pitched voice screaming, “Get out. Get out.” Following the screams, there was up to a minute of silence, and then the sound of water running in the tub. After the water had been running for a short time, there was a choking or coughing sound that lasted three to four seconds. About five to ten minutes after the sounds began in the bathroom, Ms. Currell heard heavy footsteps go down the hallway towards the kitchen or foyer area and a high-pitched squeak from a door. The whole incident seemed to last for about ten to fifteen minutes.

[11] Trevor Shilston lived on the same floor (the third floor) as the appellant and the deceased. At approximately 4:08 p.m. on September 23, 2001, he left his apartment to go to Happy Hour and passed the appellant, who was walking down the hall towards his apartment. The appellant said, “Hi, how are you? How’s it going?” Mr. Shilston testified that it was a little unusual for the appellant to initiate conversation. About 10 minutes later, Mr. Shilston returned to the third floor and, at that time, saw the appellant accompanied by his father going in to his apartment. After the apartment door was closed, Mr. Shilston heard the appellant’s father say, “Somebody call 9-1-1” and “Get your ear to her mouth and see if she’s breathing.”

[12] The Crown also relied on evidence of certain pre-mortem conduct on the part of the appellant as being significant. In particular, the Crown relied on evidence from the appellant’s father that, a few days prior to the deceased’s death, the appellant had told him that the deceased was contemplating suicide. In addition, a neighbour of the appellant testified that, shortly after 3:00 p.m. on September 23, 2001, the appellant obtained a bottle of homemade wine from her. Further, the Crown relied on evidence from the appellant’s father that the appellant had visited his apartment during the afternoon on September 23, 2001, brought him a bottle of wine and told him that the deceased was “acting strange”. The appellant left when his father told him to go and check on his wife, but then returned “seconds later” and said that the deceased had hanged herself.

[13] Turning to the evidence relating to the cause of death, the examining pathologist testified that injuries to the deceased’s neck raised suspicions concerning neck compression. However, there was no damage to the neck cartilage to support a finding of strangulation, and there was no evidence that the deceased was hanged. Bruises around the neck consistent with pressure points from fingers, as well as internal bruising in the neck, suggested compression from another source. In addition, petechial hemorrhages (pinpoint bleeding) in the eyes, epiglottis, lining of the lungs and heart were consistent with an asphyxial event or squeezing or compression of the neck.

[14] Although petechial hemorrhages can also occur as a result of a drug overdose, based on the extent and distribution of these injuries, the pathologist opined that they were not due to any attempt at CPR nor were they related to a drug overdose. The pathologist also testified that if someone is in a semiconscious state, it is possible for him or her to swallow or make a movement with their throat, but that one would expect to hear a coughing or sputtering sound. After receiving the toxicologist's report, the pathologist concluded that the cause of death was drug intoxication associated with blunt force injuries, meaning that, depending on when they occurred, the blunt force injuries could have been a contributing factor in the deceased’s death.

[15] A forensic engineer from the Centre of Forensic Sciences testified that it was highly unlikely that the deceased could have hanged herself from the shower bars in the bathtub using the purple hairband. Moreover, tests on the wall of the shower revealed no image of a body print.

[16] Investigators discovered six pill bottles on the dining room table of the couple's apartment, four with prescriptions for the deceased and two with prescriptions for the appellant. Although it appeared that the deceased's pills had been used in accordance with her prescriptions, 27 of the appellant's pills were unaccounted for. The labels on the appellant's pill bottles were dated August 30, 2001, and his prescriptions were for Nortriptyline, the same antidepressant medication being taken by the deceased and the source of the overdose.

[17] Concerning the deceased’s emotional state, the Crown relied on evidence from a resident of the apartment building that he saw her both in the laundry room and hallway of the third floor between 2:30 and 3:00 p.m. on September 23, 2001, and that her demeanour was very good. She made a joke and seemed normal and talkative. In addition, both the deceased’s family doctor and her psychiatrist testified that while the deceased had been depressed, she was not suicidal. Finally, the deceased’s mother testified that her daughter had never mentioned suicide and had never attempted suicide. As well, the appellant had never mentioned to her that the deceased was suicidal.

[18] The appellant did not testify at trial; however, in addition to his September 27, 2001 statement to the police, he relied on alleged shortcomings in the medical evidence, evidence of absence of motive and evidence of the deceased’s emotional state as significant elements of his defence.

[19] Contrary to the opinion expressed by the Crown’s experts, a defence forensic toxicologist testified that the Centre of Forensic Sciences could have performed a valid quantitative analysis of the deceased's stomach contents to determine the amount and timing of drug ingestion.

[20] The defence also relied upon evidence that the deceased's psychiatrist had neglected to chart 16 or 17 meetings with her patient between February 23 and December 5, 2000; that the deceased's family doctor had, on occasion, provided the deceased with antidepressant pills without informing the deceased's psychiatrist; that, in the past, the deceased's psychiatrist had failed to discuss with her patient drug screening results indicating high concentrations of antidepressant medication; and that the deceased's psychiatrist failed to monitor the deceased's drug concentration levels after prescribing an additional drug that could have a potentiating effect on Nortriptyline. Also, the defence pointed to the concession by the Crown pathologist that none of the physical injuries to the deceased's body supported a theory that she had been force-fed a toxic level of drugs.

[21] Although there was evidence indicating that the appellant and the deceased separated briefly early in their marriage, that they lived pay cheque to pay cheque and that the deceased's psychiatrist viewed the appellant as being controlling, several neighbours and family members confirmed that the couple appeared happy, were never observed arguing and would openly display their affection for one another.

[22] The deceased's first husband testified that the deceased suffered from depression during their marriage and that, although she did not discuss suicide, she did say that she should "just kill herself" when experiencing an emotional low.

II. Analysis

[23] As already noted, although the appellant raised several issues on appeal, we called on the Crown to respond to only two issues. Dealing briefly with the other matters raised, in our view, there was evidence capable of supporting the Crown’s position that the appellant force-fed drugs to his wife, and the trial judge made no error either in leaving the verdict of first degree murder with the jury or in his general instructions to the jury concerning the use that could be made of the appellant’s pre-mortem or after-the-fact conduct. Further, we are satisfied that the trial judge adequately set out the position of the defence, and that he did not make any material errors in reviewing the evidence. We see no merit in the ground of appeal relating to the use of a decision tree.

i) Did the trial judge err in his instructions concerning the evidence of Trevor Shilston?

[24] The first issue that we asked the Crown to address was whether the trial judge erred in instructing the jury that if they were satisfied that the appellant murdered his wife and if they accepted Mr. Shilston’s evidence concerning his observations of the appellant at approximately 4:08 p.m. on September 23, 2001, then Mr. Shilston’s evidence “strongly” supported a finding of planning and deliberation. The specific instruction is as follows:

I am going to turn now to a brief discussion of some of the evidence relating to planning and deliberation

You should consider in particular the evidence of Trevor Shilston that he saw [the appellant] walking towards his apartment by himself well after the thuds and the screaming heard by witnesses and that [the appellant] was acting normally and exchanged greetings with him. If you accept that evidence and are satisfied beyond a reasonable doubt that [the appellant] murdered his wife, then the evidence of Mr. Shilston, if you accept it, strongly supports the conclusion that [the appellant] had embarked upon a calculated scheme that had been deliberated upon and carefully thought out [emphasis added].

[25] The appellant asserted that the trial judge erred in failing to strongly caution the jury that before using Mr. Shilston's evidence to draw any negative inference relating to the appellant, they were required to consider any possible innocent explanations for the appellant's conduct. Such a caution was necessary not only because of the trial judge's strong language concerning the potential use of Mr. Shilston's after-the-fact conduct evidence, but also because Mr. Shilston's observations related to the appellant's demeanour, a highly suspect form of evidence.

[26] The appellant acknowledged that the trial judge had elsewhere instructed the jury of the need to consider potential innocent explanations for after-the-fact-conduct before drawing a negative inference. However, he submitted that, in the face of the trial judge’s strong statement concerning the potential use of this evidence, fairness required that he remind the jury in equally forceful terms of any innocent explanations.

[27] I reject the appellant's submissions. I note that at the conclusion of his review of the evidence relating to planning and deliberation (on the page of his charge next following the impugned instruction), the trial judge reminded the jury of his earlier instructions concerning the use of after-the-fact conduct evidence:

Please remember what I told you before, that what someone says and does after-the-fact may support an inference that he is guilty of the crime charged. But be aware of the danger of mistakenly leaping to a conclusion of guilt by evidence of after-the-the fact conduct that may have happened for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.

Finally, even if you do infer a consciousness of guilt from after-the-fact conduct, you must be careful to consider whether that guilt relates specifically to the crime of first degree murder or whether it relates only to manslaughter or to second degree murder. In other words, you should not leap to unreasonable conclusions from the after-the-fact conduct, but consider whether there are other explanations for behaviour. Think about it by separating it out as it relates to each of the manslaughter, second degree murder and first degree murder. It may be an innocent explanation. But if you find that it is not an innocent explanation for the after-the-fact conduct, then do not make the mistake of failing to consider how it applies to each of the three types of criminal convictions that are open to you on the evidence.

[28] In our view, this instruction was more than adequate to meet the appellant's concerns in relation to the after-the-fact conduct evidence issue.

[29] As for the demeanour evidence issue, I note that the significance of Mr. Shilston's evidence did not depend on his observations of the appellant's demeanour, but rather the sequence of events. It is important to remember that the impugned instruction was founded on the premise that the jury had already determined that the appellant murdered his wife. If the jury accepted Mr. Shilston's evidence, the appellant was walking calmly towards his apartment at a time when he knew his wife was either dead or seriously injured and prior to going to his father's apartment to obtain his assistance.

[30] Mr. Shilston’s observations support the appellant’s father’s evidence that the appellant visited his father twice within a brief time frame on the afternoon of September 23, 2001. When considered in combination with the appellant's father's evidence, Mr. Shilston's evidence means that at 4:08 p.m., the appellant returned from his father's apartment (where he went with a bottle of wine after killing the deceased) before going back to his father’s apartment to summon help. Viewed in this light, Mr. Shilston's evidence of seeing the appellant walking calmly towards his apartment at 4:08 p.m. creates a strong inference that the appellant was engaged in a pre-planned ruse.

ii) Did the trial judge err in his instructions to the jury concerning motive?

[31] The second issue that we asked the Crown to address was whether the trial judge erred in his instructions on motive by failing to adequately review the defence evidence demonstrating that there was, at the very least, an absence of proven motive. The trial judge’s instructions to the jury concerning motive were as follows:

And please remember as well that for guilt to be found, the Crown does not have to prove the existence of a motive. Motive is a reason why somebody does something, but it is not one of the essential elements that the Crown must prove. A person may be found guilty of an offence whatever his or her motive or even without a motive. Absence of a proven motive, however, is a circumstance for you to consider -- one which you may find tends to support the presumption of innocence.

A person may also be found not guilty of an offence even if he or she has a motive to commit it. Here the Crown points to the financial problems and the controlling nature of [the appellant], along with a number of other factors that you heard [Crown counsel] refer to in his address to you, while the defence submits that all of the evidence, including the evidence of the residents who gave evidence.... Let me back up. The defence submits that all of the evidence, including that of the residents, points to the fact that [the appellant and the deceased] enjoyed a loving relationship and there was no motive to kill his wife.

It will be for you to determine whether motive is present or not. If you find that the evidence establishes that there was no motive, that is an important factor tending to support [the appellant's] denial of guilt, but, on the other hand, remember that the Crown has no obligation to prove motive [emphasis added].

[32] In his factum, the appellant submitted that the evidence at trial established a proven absence of motive. Although he did not abandon that position in oral argument, the focus of the appellant’s submissions was that the trial judge failed to provide the jury with a coherent review of the evidence demonstrating that no motive was proven in this case.

[33] In particular, the appellant contends that the trial judge failed to refer the jury to important evidence, such as the fact that the deceased did not have an insurance policy and that she had told her psychiatrist only days before her death that she and the appellant had talked about reversing his vasectomy and that she was very happy about that.

[34] In my view, the trial judge referred the jury to the most significant evidence pointing to the absence of motive. While it would have been open to the trial judge to provide a more detailed review of the evidence, had he done so, it would have been incumbent on him to refer as well to additional evidence relied on by the Crown relating to motive. I note that defence counsel made no objection to the trial judge's charge and, in fact, stated, "it adequately and properly summarized the position of the defence". In the circumstances, I would not give effect to this ground of appeal.

III. Disposition

[35] Based on the foregoing reasons, I would dismiss the appeal.

Released: January 20, 2006 “MR”

“Janet Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree S.T. Goudge J.A.”