CITATION: R. v. Reeve, 2008 ONCA 340
DATE: 20080502
DOCKET: C35244
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and GILLESE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
MICHAEL REEVE
Appellant
James Lockyer for the appellant
Susan L. Reid and Tracy Stapleton for the respondent
Heard: December 18 and 19, 2007
On appeal from the conviction entered by Justice B. MacDougall of the Superior Court of Justice, sitting with a jury, on December 11, 1999.
DOHERTY J.A.:
I
OVERVIEW
[1] This appeal has a long history. In December 1999, a jury in Lindsay, Ontario convicted the appellant of the first degree murder of David Hanson. He received the mandatory sentence of life imprisonment without eligibility for parole for twenty-five years. The appellant appealed, alleging various errors by the trial judge and contending that the first degree murder conviction was unreasonable and against the weight of the evidence.
[2] The appeal was not perfected for several years. Eventually, the court made an order requiring perfection of the appeal by February 2004. Shortly after the appeal was perfected, it was listed for argument in September 2004. At the request of counsel for the appellant, the appeal was adjourned to November 2004. The day before the appeal was to be heard, counsel requested a further adjournment. He advised that the adjournment was required to assemble the material necessary for a motion to adduce fresh evidence on the appeal. The fresh evidence challenged toxicology evidence that had been adduced by the Crown at trial. The appeal was adjourned.
[3] The fresh evidence application grew to include not only toxicology evidence but evidence challenging features of the pathology evidence adduced at trial. The Crown and defence interviewed various experts and prepared several affidavits. The parties cross-examined some of the affiants. This process took a long time.
[4] The appeal was eventually scheduled for December 2007. Counsel filed several volumes of evidence on the motion to adduce fresh evidence. Broadly speaking, the evidence falls into one of two categories. The first category of evidence, which I will refer to as the toxicology evidence, contradicts Crown evidence led at trial relating to the concentration of alcohol in the deceased’s blood and urine, and the inference that could be drawn as to how long before his death the deceased had his last drink. The defence had not challenged this evidence at trial. The Crown concedes that the toxicology evidence offered on appeal is correct.
[5] The second category of fresh evidence, which I refer to as the pathology evidence, challenges various aspects of the pathology evidence led by the Crown at trial. Most, if not all, of the issues raised by the pathology evidence were challenged by the defence at trial. The Crown contends that the pathology evidence offered on appeal consists of further opinions confirming the defence opinions advanced at trial and refuting the contradictory opinions advanced by the Crown. The Crown has also provided pathology evidence on appeal, which it contends supports the evidence it called at trial.
[6] In addition to relying on the proposed fresh evidence, counsel advanced grounds of appeal arising out of the trial record. He submitted that errors made at the trial warranted the quashing of the conviction. Counsel further argued that even in the absence of error, the evidence only justifies a second degree murder conviction, not a first degree murder conviction.
[7] All of the arguments advanced by the appellant, save the contention that the evidence does not support the conviction on the first degree murder charge, would, if successful, result in a new trial on the charge of first degree murder.[^1] If the appellant is correct that the evidence does not support the first degree murder conviction, he is entitled either to a new trial on a charge of second degree murder or to the substitution of a conviction on the charge of second degree murder, depending on the merits of the other grounds of appeal.
[8] The submission that the evidence could not support a conviction on first degree murder must be rejected. A review of the evidence demonstrates that there was ample evidence from which the jury could conclude that the appellant, who had a reason to want Mr. Hanson dead, planned to kill Mr. Hanson at their pre-arranged meeting. There was evidence that the appellant killed Hanson at the marina and put in play a scheme whereby he destroyed evidence at the marina and engaged in an elaborate effort to make it look as though Mr. Hanson had died when his car crashed into the Trent Canal. Some of the appellant’s conduct on the night of Hanson’s death, and in the subsequent days, could also constitute evidence that the murder was planned and deliberate. I cannot say that a conviction for first degree murder would be unreasonable. Consequently, there is no basis to substitute a conviction for second degree murder, or if a new trial is ordered, to order the new trial on the charge of second degree murder. There are two options. Either the appeal should be dismissed and the conviction on first degree murder affirmed, or the appeal should be allowed and a new trial ordered on the charge of first degree murder.
[9] The appellant is entitled to a new trial if the court concludes that either the toxicology or the pathology evidence is admissible on appeal. The admissibility of the toxicology evidence and the admissibility of the pathology evidence raise somewhat different issues. The admissibility of the toxicology evidence is a more straightforward question and since it will dispose of the appeal, I will consider it first. For reasons I will explain, the admissibility of that evidence comes down to whether it could reasonably be expected to have affected the verdict at trial. I am satisfied that the evidence could have that effect, that it must be admitted on appeal, and that a new trial on the charge of first degree murder must be ordered.
[10] Before examining the admissibility of the toxicology evidence, I will summarize the trial evidence. I do so in some detail both to put the toxicology evidence in context and to demonstrate that there was ample evidence to support a conviction on the charge of first degree murder.
II
THE EVIDENCE AT TRIAL
(a) The Position of the Parties
[11] On the Crown’s theory, the appellant wanted David Hanson dead for personal and business reasons. He arranged to meet with Hanson in the early evening of January 11, 1998 at the marina that Hanson owned, which was also where the appellant worked. The marina was not open, and no one else was there.
[12] The Crown contended that very shortly after Hanson arrived at the marina, the appellant hit him on the head, rendering Hanson unconscious but not dead. On the Crown’s case, the appellant, as he had planned, cleaned up the scene, loaded Hanson’s body into Hanson’s car and drove the car with Hanson’s body in the driver’s seat slowly into the nearby Trent Canal – all in an attempt to make Hanson’s death look like an accident. Hanson’s body and his car were pulled from the canal a few days later. On the Crown’s case, Hanson was alive, though incapacitated by the blow to the head, when the car went into the water.
[13] On the Crown’s theory, after driving the car into the Trent Canal, the appellant extracted himself from the vehicle and went ashore. According to his plan, the appellant made his way to a nearby, vacant, white cottage that he partly owned to get out of his wet clothing. It was bitterly cold that night. The appellant changed from his wet clothing in the cottage, warmed himself, and then went back to the marina to continue cleaning the murder scene. In the following days, before Hanson’s body was found, the appellant carried on as if Hanson was alive. He also lied to various friends and the police about his knowledge of Hanson’s whereabouts.
[14] The appellant told a different story when he testified. He met with Hanson at the marina in the early evening of January 11 to discuss various business matters. The meeting was friendly until Hanson suddenly lost his temper for no apparent reason. Hanson pushed the appellant, knocking him backwards. The appellant, who was now seated, looked up to see Hanson coming towards him. He pushed back against Hanson. Hanson fell, striking his head on a metal tongue of a boat trailer.
[15] The appellant testified that when it became clear to him that Hanson was dead, he panicked. After some brief reflection, he decided to make Hanson’s death look like a suicide and to kill himself at the same time. The appellant described loading Hanson’s body into Hanson’s car and driving it into the Trent Canal. The appellant insisted that he was convinced that Hanson was dead before he loaded him into the car and drove him into the Trent Canal. The appellant also insisted that he fully intended to kill himself. According to him, he was travelling at over one hundred kilometres per hour when he went into the Trent Canal. The appellant changed his mind about committing suicide after the car went into the canal. He was not sure how he managed to survive the crash.
[16] The appellant admitted that both before and after driving Hanson’s vehicle into the water, he made efforts to clean up the homicide scene at the marina. He also pretended to know nothing about Hanson’s whereabouts while the police and Hanson’s family were looking for him. The appellant also admitted that he lied to friends and the police for weeks about his knowledge of the events surrounding Hanson’s death.
(b) The Evidence in More Detail
(i) Events Prior to the Meeting at the Marina on January 11, 1998
[17] The appellant purchased the Rosedale Marina on the Trent River in 1975. In the summer of 1996, the business went into receivership. David Hanson, who had known the appellant for many years, purchased the business in January 1997. He hired the appellant to run the day-to-day operation of the marina. Hanson lived in Toronto during the week and went to the marina on weekends.
[18] There was evidence that the working relationship between the appellant and Hanson was not a smooth one. The appellant was a workaholic and had put all of his efforts into the marina for more than twenty years. He did not think that Hanson was capable of running the business. The appellant saw himself as the legitimate owner. For his part, Hanson became concerned about the appellant’s honesty. He thought the appellant was making deals on boats at the marina behind Hanson’s back. According to the Crown’s evidence, by late 1997, the appellant was both dissatisfied with Hanson’s operation of the marina and worried that Hanson might fire him. The appellant told one customer that Hanson would not put the needed money into the marina and that he wanted to get Hanson out of the business.
[19] The appellant testified that he and Hanson disagreed from time to time about the operation of the marina but that none of these disagreements were serious. He thought he had a good working relationship with Hanson. He considered him a friend.
[20] Hanson was romantically involved with Grace Cork in the early months of 1997. After that relationship had apparently ended, the appellant began a romantic relationship with Cork in November 1997. Neither the appellant nor Cork told Hanson about their relationship.
[21] Hanson learned about the relationship between the appellant and Cork on Christmas day of 1997. He was quite upset. A few days later, Hanson asked Cork to marry him. She was living with the appellant at this time. Cork agreed to marry Hanson and moved out of the appellant’s home. The appellant testified that he accepted Cork’s decision and was only concerned about what effect, if any, it might have on his future at the marina. Other witnesses described the appellant as distraught.
[22] Hanson and Cork travelled to Florida in early January 1998. The appellant and Hanson spoke regularly on the telephone. According to the appellant, he and Hanson were getting along well.
[23] John Crisp, a friend of Hanson’s and an acquaintance of the appellant’s, testified that he spoke with the appellant frequently while Hanson and Cork were in Florida. According to Crisp, the appellant was very upset about the possibility of losing his position at the marina. Other friends described the appellant as upset and depressed. On January 11, Hanson returned to Ontario to meet with the appellant. Cork remained in Florida. She had told the appellant that she and Hanson would be married on February 5, 1998.
[24] It was the Crown’s position that the deterioration of the appellant and Hanson’s business relationship and Cork’s decisions to leave the appellant and marry Hanson provided the motivation for the appellant’s decision to murder Hanson.
[25] The appellant knew in advance that Hanson was returning from Florida to meet with him on January 11. Nonetheless, when a customer inquired about Hanson, the appellant lied to the customer and told him that Hanson would not be returning to the marina until the following week.
(ii) The Appellant’s Version of the Events at the Marina on January 11, 1998
[26] The appellant testified that Hanson arrived at the marina at about 4:30 p.m. on January 11. The appellant met with him several minutes later. They were together for about thirty-five minutes before the altercation that resulted in Hanson’s death.
[27] In his testimony, the appellant described in some detail how he and Hanson drove to a showroom where several boats were stored. They walked around the property, examining some changes the appellant had made. The appellant testified that he and Hanson drove back to the main showroom and went to the downstairs office area at the marina. Hanson was relaxed and in a good mood. He seemed happy with the work the appellant had done at the marina while Hanson was in Florida. He and the appellant spoke for about twenty minutes before the appellant left to get them some coffee.
[28] The appellant testified that when he returned with the coffee, Hanson’s mood had changed. He was angry and told the appellant to “keep his hands” off Ms. Cork. The appellant insisted that he had no interest in her. Hanson reached out and “whacked” the appellant on the shoulder. The appellant staggered backwards, bumped his head on the cleat of a boat, swung around and fell into a chair. As he pushed himself up from a seated position in the chair, he saw Hanson coming towards him. The appellant put out both hands, closed his eyes and pushed hard against Hanson. He opened his eyes to see Hanson falling backwards with his feet up in the air. Hanson struck his head on the tongue of a trailer and fell to the floor.
[29] The appellant testified that he immediately went to Hanson’s aid. He shook him and felt for a pulse. He also tried mouth-to-mouth resuscitation about ten times, but nothing happened. It was obvious to the appellant that Hanson was dead. He sat down and started thinking about “all the things that had gone wrong”. After a few moments, the appellant thought, “well I can’t take any more of this as I just wanted to end it.” He decided he would make Hanson’s death look like an accident and kill himself at the same time.
[30] The appellant drove Hanson’s car into the showroom and dragged his body over to the car. Hanson was a very large person, weighing well over two hundred pounds, so the appellant used the hydraulics of a snow plow to lift the body and place it in the driver’s seat of Hanson’s car.
[31] The appellant said that he planned to kill himself and make Hanson’s death seem like an accident by driving the car into the Trent Canal. He smashed the front and side windows of the car so that it would sink quickly. The appellant cleaned up Hanson’s blood and the broken glass from the floor of the marina. He remembered that he was scheduled to attend a dinner party at 6:30 p.m. Even though he was planning to kill himself, he phoned the host to say that he would be late. The appellant also mentioned that Hanson had left their meeting and had not returned.
[32] The appellant described loading Hanson into the driver’s seat of the vehicle and sitting partly on Hanson’s body as he drove into the Trent Canal. He drove the vehicle into the canal at over one hundred kilometres an hour, missing a pylon in the canal that he said he had hoped to hit. The car went into the canal between 6:30 and 7:00 p.m.
[33] The appellant could not recall entering the water, but he did recall struggling to get out of the water and back to shore. He described reaching shore and standing in front of a friend’s home. The appellant had lost a shoe, and he was soaking wet. It was very cold. He did not recall going to his cottage. The appellant testified that he walked back to the marina, put on some boots and drove himself home. When he arrived home, the appellant started a fire, changed his clothes and took a shower. He burned his clothing and the one shoe that had survived the trip into the Trent Canal. He also threw the carpet from his laundry room into the fire in case it had blood on it.
[34] Mr. Crisp, who was hosting the dinner party that the appellant was to attend that night, telephoned the appellant. The appellant repeated his earlier lie telling Mr. Crisp that Hanson had not returned to the marina. The appellant then went to the dinner party.
[35] Later that evening at about 11:30 p.m., the appellant returned to the marina and continued his clean-up efforts. He washed and vacuumed the marina floor. Finally, he went home and went to bed.
(iii) The Forensic Evidence
[36] The Crown did not have direct evidence to contradict the appellant’s version of the events on the evening of January 11. It offered forensic evidence to support the contention that the appellant had struck Mr. Hanson on the head, rendering him unconscious, loaded his body into Hanson’s car, and drove it into the Trent Canal.
[37] Hanson had an eight-centimetre laceration on his head and a very significant skull fracture. Dr. McAuliffe, who performed the autopsy, testified that the head injury was more consistent with a severe blow from a heavy object than from a fall. He further testified that for the injury to be caused by a fall, Mr. Hanson would have had to fall from a considerable height – for example, from a ladder. Dr. McLellan, a trauma specialist, agreed with Dr. McAuliffe that the head injury was more consistent with an injury from a blow than with an injury from a fall.
[38] Dr. McAuliffe testified that he believed that Hanson was alive when he went into the Trent Canal. He concluded that death was caused by “drowning complicating blunt force head injury”. Dr. McAuliffe agreed that it was difficult to determine whether a dead person found in water had died from drowning. He also indicated that he did not perform certain tests that could have assisted in making that determination.
[39] Dr. McLellan, the trauma specialist, believed that Hanson’s head injury was not necessarily fatal. He also testified that if Hanson died within thirty minutes of suffering the head injury, Hanson’s pulmonary oedema would not have been the product of his head injury. Pulmonary oedema is one indicator of death by drowning.
[40] Drs. Markesteyn and King, two pathologists who testified for the defence, indicated that the injuries were consistent with a fall and inconsistent with a blow to the head. They believed that Hanson died very quickly after receiving the head injury. Dr. King examined the trailer tongue that the appellant said Hanson had struck when he fell and testified that the laceration on Hanson’s head was consistent with an injury caused by striking the tongue of the trailer.
[41] The defence experts testified that it could not be determined whether Mr. Hanson had died by drowning. In their opinion, there was no evidence corroborative of drowning, and no evidence that would permit the exclusion of drowning as a cause of death. Neither Dr. Markesteyn nor Dr. King was in a position to challenge Dr. McLellan’s opinion with respect to the pulmonary oedema.[^2]
[42] An expert in blood-spatter patterns called by the Crown testified that the discernible spatters (the appellant had attempted to clean the scene) were inconsistent with the appellant’s version of events and consistent with the version advanced by the Crown. The same expert opined that stepping in a pool of blood, as the appellant claimed he had done, would not have caused the observed spatter.
[43] The blood-splatter expert examined traces of the appellant’s blood found on a forklift tine. The blood was found on all four sides of the tine. This was consistent with evidence given by Steven Shepherd, a friend of the appellant’s. Shepherd testified that sometime after Hanson’s death, the appellant told him that he had smeared his own blood on the forklift tine in an effort to create evidence consistent with his explanation as to how he had cut his head. Had the smear been caused by the appellant actually striking his head on the tine, there would not have been blood on all four sides of the tine unless it went through his head.
[44] The Crown also called William Robinson, a toxicologist. He testified that, based on alcohol levels in Hanson’s blood and urine, Hanson had stopped drinking no more than fifteen to twenty minutes before his death. The significance of this evidence is discussed in detail below.
[45] The Crown also called the evidence of an accident reconstructionist. He testified that Hanson’s car sustained minimal damage when it went into the Trent Canal. The damage was consistent with the car travelling at a speed of fifty to sixty-five kilometres an hour on entry into the water and not at over one hundred kilometres per hour as the appellant had testified. The vehicle also missed various obstacles located near where it went into the Trent Canal. Had the vehicle hit any of these obstacles, it would have suffered significantly more damage than it did. The Crown theorized that the appellant had carefully driven the vehicle into the canal at a relatively slow speed to miss these obstacles.
[46] The accident reconstructionist also observed a crack on the windshield on the front passenger’s side. The crack was consistent with having been caused when the mirror struck the front window. The cut on the appellant’s head was consistent with contact with the mirror. Hanson’s head laceration was inconsistent with having been caused in the accident. Hand smears on the passenger’s side of the dashboard were consistent with someone in the passenger’s seat bracing himself when the vehicle made impact with the water.
(iv) The Appellant’s Trip to the White Cottage
[47] The Crown also relied on evidence that the appellant went to a white cottage, which he partly owned and was located very near the scene of the crash, immediately after he got out of the Trent Canal. The Crown maintained that the appellant went to the cottage to warm himself and get out of his wet clothing, and that these actions indicated that the crash was part of a prior plan to murder Hanson.
[48] Physical evidence, including footprints in the snow and glass from Hanson’s vehicle, established that the appellant went to the cottage after he crashed the car and got out of the Trent Canal. According to Mr. Shepherd, the appellant told him that when he got out of the water, he went to his cottage to change his wet clothes and warm himself. The Crown argued that the appellant must have put a fresh set of clothing in the cottage before the meeting with Hanson at the marina, a clear indication, according to the Crown, that the murder was planned. The Crown also argued that, given the very cold temperatures, ready access to shelter and dry clothing near the scene where he drove the car into the canal was a crucial component of the plan. The appellant’s vacant cottage provided that shelter.
[49] The Crown also submitted that it was significant that when the appellant climbed out of the canal, he went to his vacant cottage rather than to any of the other nearby occupied residences. The Crown submitted that this conduct was much more consistent with a person who was putting a prior plan to kill Hanson into effect than with a person who had accidentally killed Hanson, and in a panic tried to kill himself and then changed his mind and was trying to save himself.
(v) Events after January 11, 1998
[50] The next morning, January 12, the appellant returned to the marina and continued his clean up. He cleaned all of the trailers, including the trailers’ tongues. On January 13, he rented a carpet cleaner and steam cleaned the carpet in the marina.
[51] Mr. Hanson was reported missing by his family on the evening of January 12, about twenty-four hours after the appellant drove Hanson into the Trent Canal. The police spoke with the appellant on the night of January 12. He lied to the police telling them that Hanson had left their meeting on January 11 to retrieve some papers and had not returned. He repeated the same lies to the police the next day. The appellant also left messages on Hanson’s voicemail requesting that Hanson phone him.
[52] The police found Hanson’s car in the Trent Canal late on Tuesday, January 13. The car was recovered the next day. On that day, the appellant gave a two-and-a-half hour, videotaped statement to the police. He continued to lie to the police and told them that he did not know what had happened to Hanson.
[53] In the days following January 14, the appellant became quite depressed. Mr. Shepherd stayed with the appellant. They discussed Hanson’s disappearance on several occasions. The appellant repeatedly lied to Mr. Shepherd about his knowledge of what had happened to Hanson. Finally, on January 27, about two weeks after Hanson’s death, the appellant told Mr. Shepherd a version of events that was similar to, but not quite the same as, the version of events that the appellant eventually gave on the witness stand.
III
THE TOXICOLOGY EVIDENCE
(a) The Evidence at Trial
[54] William Robinson, a forensic toxicologist with the Centre of Forensic Sciences, testified for the Crown. He indicated that blood and urine samples were taken from Mr. Hanson’s body at the time of the autopsy. The blood sample taken from the heart contained 53 milligrams of alcohol in 100 millilitres of blood. The urine sample contained 29 milligrams of alcohol in 100 millilitres of urine.
[55] Mr. Robinson was asked to explain why the alcohol levels were different in the blood and urine samples. He answered:
The urine is a collection of the blood alcohol concentrations of alcohol over a period of time. In this instance, with the blood being higher in concentration than the urine, it would indicate that the person has recently consumed alcohol prior to his death and that he has not reached his maximum blood alcohol – or his maximum blood alcohol concentration. So in other words, he was either actively drinking when he died or had finished drinking shortly prior to that, and the urine had yet to catch up to what the blood alcohol concentration was. [Emphasis added.]
[56] In response to further questions, Mr. Robinson indicated that Hanson would have had his last drink “up to 15 to 20 minutes” prior to his death. Counsel for Reeve did not cross-examine Mr. Robinson on this part of his evidence.
[57] According to the appellant’s version of events, Hanson arrived at the marina almost an hour before the altercation during which Hanson struck his head. Also according to the appellant’s version of events, he and Hanson were together for about thirty-five minutes before the altercation. The appellant also testified that it was about 6:30 p.m., some two hours after Hanson arrived at the marina, when he drove Hanson’s vehicle with Hanson’s body in it into the Trent Canal. The appellant confirmed that Hanson did not have anything to drink while they were together at the marina. He did not notice any indication that Hanson had been drinking until he tried to give him mouth-to-mouth resuscitation.
[58] The Crown relied on Mr. Robinson’s opinion that Hanson had his last drink fifteen to twenty minutes before he died, together with the appellant’s evidence that Hanson had nothing to drink while they were together, to support the Crown’s claim that Hanson died very shortly after he arrived at the marina and met the appellant.
[59] The Crown submitted to the jury that a finding that Mr. Hanson died very shortly after he arrived at the marina supported the Crown’s case in three ways. First, it undermined the credibility of the appellant’s version of events at the marina. On that version, given in some detail by the appellant, the two men were together at the marina for considerably longer than twenty minutes.
[60] Second, the evidence supported the Crown’s claim that the appellant had planned the murder. If Mr. Hanson was struck shortly after he arrived at his meeting, this suggested that the blow was the product of a prior plan. That inference became particularly strong if, as the Crown claimed, Mr. Hanson did not die until he was in the canal. On that view of the evidence, he must have suffered the head injury virtually upon his arrival at the marina.
[61] Third, the Crown submitted that the toxicology evidence, considered along with the evidence of Dr. McLellan, the trauma specialist, supported the Crown’s theory that Hanson was alive when his car went into the Trent River and that he drowned. Dr. McLellan testified that one would not expect to find pulmonary oedema as a result of a head injury within fifteen or twenty minutes of that injury occurring. On the toxicology evidence, combined with the appellant’s evidence that Hanson was not drinking at the marina, the blow causing the head injury could not have been struck more than twenty minutes before Hanson’s death. According to Dr. McLellan, if the pulmonary oedema occurred within twenty minutes, it could not have been caused by a head injury. This left drowning as the probable explanation for the pulmonary oedema.
[62] It was not essential that the Crown prove that Hanson drowned for the Crown to establish its case. The Crown’s case was, however, stronger if the jury concluded that Hanson drowned, not that he died at the marina. If the jury was satisfied that Hanson was still alive at the marina, then that finding would undermine the truthfulness of the appellant’s description of the steps he took to try to assist Hanson. Further, if the jury was satisfied that Hanson was still alive, it would not be difficult for the jury to conclude that the appellant knew Hanson was still alive when he loaded him into the car and drove into the canal. Obviously, if the jury made those findings, the appellant’s fate was sealed.
(b) The Toxicology Evidence Offered on Appeal
[63] Counsel for the appellant retained two forensic toxicologists. The Crown retained one. I need not review the details of their opinions. All of them agree that Mr. Robinson’s testimony that it could be determined that Hanson had his last drink fifteen or twenty minutes before his death based on the different alcohol levels in his blood and urine is scientifically unsound and incorrect. The state of the toxicology evidence on appeal is summarized in a letter written by Crown counsel to appellant’s counsel:
I can advise that I consulted with Dr. Graham Jones, Chief Toxicologist in the Office of the Medical Examiner in Edmonton, Alberta. He does not fundamentally disagree with your defence toxicology opinions. He confirms that the time estimate of fifteen to twenty minutes between the last drink and death is without scientific basis. He is of the view that the time period could be anywhere from minutes to hours between the last drink and death, and is more inclined to agree with Dr. Corbett’s opinion [one of the appellant’s experts] of hours. [Emphasis added.]
(c) Is the Toxicology Evidence Admissible on Appeal?
[64] An appeal court may receive evidence on an appeal from conviction where in the court’s opinion the “interests of justice” warrant receiving that evidence: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1). The statutory language fixes the appeal court with a broad discretion to determine when it should admit fresh evidence. That discretion must be exercised having regard not only to the individual appellant’s interest in avoiding a miscarriage of justice by having the appellate court consider all evidence relevant to the reliability of the conviction, but also to the broader societal interest in maintaining the integrity of the criminal justice system. That integrity is maintained by respecting the finality of verdicts reached at trial and acknowledging the respective functions and expertise of trial and appellate courts: see R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 at 411 (Ont. C.A.); R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at paras. 19-20 (S.C.C.); R. v. Lèvesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 at para. 19 (S.C.C.); R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 at para. 64 (Ont. C.A.).
[65] Where, as in this case, the evidence proffered on appeal is germane to a fact in issue at the trial, the exercise of the discretion described in s. 683 is guided by the analysis undertaken in R. v. Palmer and Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at 205 (S.C.C.) and applied in a host of subsequent decisions: e.g. see R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 at para. 102 (Ont. C.A.); R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 212 C.C.C. (3d) 11 (Ont. C.A.).
[66] This court recently examined the Palmer analysis at length in Reference re Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 at paras. 80-125. As explained in Truscott, the Palmer analysis asks three questions:
• Is the evidence admissible under the operative rules of evidence?
• Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
• What is the explanation offered for the failure to adduce the evidence at trial and should the explanation affect the admissibility of the evidence on appeal?
[67] Evidence offered on appeal is admissible only if the first two questions are answered in the affirmative. The first question recognizes that the rules of evidence applicable in criminal trials also apply on appeal: R. v. Archer, supra at para. 102. The second question, aptly described as the “cogency” inquiry, has three parts. The proffered evidence must be relevant to a potentially decisive issue; the evidence must be reasonably capable of belief; and the evidence must be sufficiently probative that when taken with the rest of the evidence adduced at trial, it could reasonably be expected to have affected the result.
[68] The third and final inquiry, which need be addressed only if the evidence meets the requirements of the first two inquiries, is often described as the “due diligence” inquiry. This third inquiry serves a different purpose than the other two. The reasons the evidence was not adduced at trial are examined to determine whether broader interests necessary to the maintenance of the integrity of the criminal justice system, such as finality, merit the exclusion of the evidence despite its admissibility according to the rules of evidence and its potential probative value. Depending on the reason for the failure to adduce the evidence at trial, evidence offered on appeal may be rejected even though it meets the criteria implicit in the first two inquiries. An appeal court must examine the reasons for the failure to adduce the evidence at trial and factor those reasons, along with its assessment of the cogency of the evidence, into an overall determination of whether the interests of justice require that the evidence be received on appeal: see R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 at paras. 36-55 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.
[69] Crown counsel accepts that the toxicology evidence proffered on appeal is admissible under the rules of evidence governing criminal trials. Crown counsel also acknowledges that the evidence is relevant to issues that were potentially decisive issues in the trial. As outlined above, the Crown relied on the inference flowing from the toxicology evidence adduced at trial to undermine the credibility of the appellant’s description of his meeting with Hanson at the marina on January 11. The appellant’s credibility was central to his defence. The Crown also relied on the evidence to support its contention that the appellant killed Hanson very shortly after Hanson arrived at the marina. If the jury drew this inference, a further inference of planning and deliberation could well follow. Finally, the evidence offered some support, when combined with Dr. McLellan’s evidence, to support the Crown’s contention that Hanson drowned. If the jury reached that conclusion, it may well also have concluded that the appellant appreciated that Hanson was still alive when he loaded him into the car and drove into the Trent Canal. This inference, if drawn, all but demanded the further inference that the murder was planned and deliberate.
[70] The Crown also acknowledges that there is no question about the credibility of the toxicology evidence. The Crown accepts that the evidence put forward on appeal is factually correct and that the very different opinion evidence offered by the Crown at trial is entirely inaccurate.
[71] The Crown takes its stand against the admissibility of the toxicology evidence on the third component of the cogency inquiry. The Crown submits that evidence that Mr. Hanson may have had his last drink more than an hour before his death rather than fifteen or twenty minutes before his death could not reasonably be expected to have affected the verdict at trial when placed in the context of the rest of the evidence. The Crown submits that the appellant’s credibility was so bankrupt and the Crown’s case on planning and deliberation so strong that the neutralization of the toxicology evidence could not realistically be expected to have affected either the jury’s assessment of the appellant’s credibility or its conclusion that the murder was planned and deliberate.
[72] In testing the Crown’s argument against the admissibility of the toxicology evidence, it is important to bear in mind that the appellant does not have to show that the evidence would probably have affected the result at trial. Nor, however, is it enough for the appellant to show that the evidence is credible and relevant and could possibly have affected the result at trial. The cogency bar rests somewhere between those two standards. The appellate court must, to some extent, weigh the potential probative value of the evidence proffered on appeal. That weighing must be done in the context of the trial evidence and the positions advanced by the parties at trial. If, on that assessment, this court concludes that the toxicology evidence heard on appeal could reasonably be expected to have changed the result at trial, then the toxicology evidence is admissible on appeal subject to a consideration of the explanation offered for the failure to adduce the evidence at trial: see Re Truscott, supra at para. 100; Smith, supra at para. 91.
[73] Quantitatively speaking, the now discredited toxicology evidence occupied a few seconds in a lengthy trial. Experienced and able counsel who represented the appellant at trial (not Mr. Lockyer) has frankly acknowledged in his affidavit that Mr. Robinson’s answer concerning the length of time between Hanson’s last drink and his death went past him unnoticed when given by Mr. Robinson. Crown counsel submits that experienced trial counsel’s non-reaction to the evidence is some indication of its relative insignificance at the trial.
[74] There is much to be said for the Crown’s contention that the appellant’s admitted mendacity in the days following the homicide, his acknowledged and extensive efforts to destroy evidence, and the implausibility of the story he told in his evidence would have destroyed his credibility in the eyes of any reasonable jury without reference to any inferences available from the now discredited toxicology evidence. I also agree with the submission that even apart from the impugned evidence, the Crown had a formidable case for first degree murder, especially if the jury accepted the Crown’s interpretation of the evidence pertaining to the white cottage.
[75] Despite the force of Crown counsel’s submissions, I have concluded that the toxicology evidence proffered on appeal could, when considered with the rest of the evidence at trial, be reasonably expected to have affected the result. As outlined above, Mr. Robinson’s evidence was important to the Crown in establishing that Hanson died very shortly after he arrived at the marina. Also, as outlined above, if the jury so concluded, it undermined the appellant’s credibility, supported the Crown’s allegation that the murder was planned and deliberate, and supported the Crown’s contention that Hanson drowned. In addition to its relevance to these important issues, I think there is a real likelihood that the jury gave Mr. Robinson’s evidence significant weight. Unlike much of the other expert evidence, it was unchallenged, and unlike much of the non-expert evidence, there was no questioning Mr. Robinson’s credibility. He would be seen as giving an objective, scientifically-based, unchallenged opinion, exactly the kind of evidence that a jury could use to anchor its deliberations when examining the more contentious evidence.
[76] I agree with Mr. Lockyer’s persuasive submission that the best way of looking at the potential value of this evidence to the different aspects of the Crown’s case is by examining the way Crown counsel used that evidence in her closing submissions. Crown counsel forcefully connected the contention that Hanson died very quickly after he arrived at the marina to the three issues set out above. For example, in the context of challenging the appellant’s credibility, Crown counsel reviewed his extensive and detailed evidence concerning the events at the marina involving himself and Hanson. After pointing out that these events had to take much more than the fifteen to twenty minutes available on Mr. Robinson’s evidence, the Crown concluded:
These details, I suggest to you, will put the lie to what Michael Reeve is trying to convince you of.
[77] Crown counsel was just as forceful in tying the evidence given by Mr. Robinson to the Crown’s theory on planning and deliberation. She said:
And then what? After he struck David Hanson, the clock is ticking. We know that, from the beginning of the meeting until when David ends up drowning at the bottom of the Trent Canal is less than fifteen to twenty minutes. I suggest to you that no man could have done all that Michael Reeve did to dispose of David Hanson’s body in such a short period of time unless he had it all planned and ready in advance.
Remember: No more than fifteen minutes to twenty minutes from start to finish. I suggest to you that, in his planning, Michael Reeve already had that snow plough, the mat and the rope, all ready and waiting, because, I suggest to you, he had a plan. [Emphasis added.]
[78] Crown counsel returned to the unchallenged evidence that Hanson had died within fifteen to twenty minutes of his last drink near the end of her jury address after canvassing the competing expert opinions on the matter. She effectively contrasted the competing expert opinions with the unchallenged “scientific” fact that Hanson had his last drink within fifteen to twenty minutes of his death. She urged the jury to focus on that unchallenged fact:
The battle of the experts aside, fifteen to twenty minutes from the start of the meeting until David Hanson drowned in the Trent Canal. I suggest to you it would be impossible for a man in a panic to carry out an elaborate plan such as that in that short a period of time, especially one, as the defendant testified, who sat down and ruminated on his life and his business dealings for some five or ten minutes, then cleaned up the murder scene prior to even disposing of David. Not an accident, not self-defence, but a meticulous and calculated plan to murder David Hanson and dispose of his body. Planned and deliberate. First degree murder. [Emphasis added.]
[79] In his instructions, the trial judge, as required, reviewed the Crown’s position, including its reliance on Mr. Robinson’s evidence. In reviewing the Crown’s position, the trial judge said in part:
The timing of the events described by the defendant in detail are totally inconsistent with the objective scientific evidence from the toxicologist who described Mr. Hanson as having either been consuming alcohol at the time he died or within fifteen minutes prior. That Michael Reeve testified he didn’t know David had been drinking until he smelled his breath after he had fallen. That according to Mr. Reeve’s evidence it was forty to forty-seven minutes from the time that David Hanson arrived at the marina until Michael Reeve said that David Hanson experienced the fall. [Emphasis added.]
[80] The Crown’s initial factum filed in response to the appeal before the toxicology evidence was put forward by the appellant also reflects the significance of the fifteen to twenty minute interval between Hanson’s last drink and his death. In the factum, the Crown asserts:
The evidence of the timing of the events established that the appellant had to have a prior plan to have accomplished all he did in the fifteen to twenty minutes allowed.
[81] The Crown supported this submission by reference to some fifteen different things that the appellant had to do in the very short interval between striking Hanson and entering the cottage after getting out of the Trent Canal.
[82] I am satisfied that the factual inference that Hanson was killed very shortly after he arrived at the marina played a significant role in the case submitted by the Crown to the jury. That inference depended entirely on Mr. Robinson’s erroneous opinion. While I accept that the Crown had a case for first degree murder without the inference that Hanson was killed very shortly after he arrived at the marina, the availability of that inference, especially when based on uncontested scientific evidence, strengthened the Crown’s case. The toxicology evidence offered on appeal to the effect that the alcohol levels in the deceased’s urine and blood do not support the inference that Hanson died shortly after his arrival at the marina effectively negates an important inference relied on by the Crown at trial. I think the toxicology evidence is sufficiently cogent to warrant its admission on appeal subject to the inquiry into the reasons for the failure to produce that evidence at trial.
[83] What is the explanation for the failure to call the toxicology evidence adduced on appeal at trial? The evidence was available at trial. The expert opinions put before this court could have been put before the trial court. There is nothing new about the science these experts have relied on in advancing their opinions. Trial counsel has filed an affidavit on the appeal. He frankly acknowledges in that affidavit that he did not think to challenge Mr. Robinson’s opinion. Indeed, counsel did not even appreciate that Mr. Robinson had given that opinion until after the evidence was completed.
[84] Crown counsel, in keeping with the proper role of the Crown, does not suggest that trial counsel’s failure to advert to the possibility that Mr. Robinson’s opinion was wrong amounts to a failure to exercise due diligence in the obtaining of evidence to contradict Mr. Robinson’s opinion. Trials are dynamic and sometimes very hectic events. Counsel have a lot on their mind. This was a very complicated case and trial; counsel had much to contend with, including experts in several different fields. It is not surprising that trial counsel, caught up in the frenetic pace of a jury trial, does not see each and every evidentiary issue that may become apparent in the quiet reflection of appellate preparation.
[85] In fairness to trial counsel, it must be pointed out that Mr. Robinson’s report, which was provided to trial counsel as part of the Crown’s disclosure, made no reference to any estimate of the length of time between Hanson’s last drink and his death. This line of questioning and Mr. Robinson’s response could not have been anticipated by trial counsel.
[86] Trial counsel did come to appreciate the significance of Mr. Robinson’s opinion after hearing Crown counsel’s closing address and the trial judge’s instructions. In his objections, counsel asked the judge to tell the jury that there was no scientific or mathematical basis for Mr. Robinson’s estimate of the time between the last drink and Hanson’s death. Given Mr. Robinson’s unchallenged evidence before the jury, the trial judge, quite properly, refused to so instruct the jury. As we now know, trial counsel’s objection hit the factual nail right on the head.
[87] The essentially unchallenged explanation for the failure to adduce the toxicology evidence at trial does not tell against its admissibility on appeal. The appellant does not seek to undo any tactical decision made at trial. Nor does he seek to put evidence before this court that reasonably should have been before the trial court. Rather, he seeks to put evidence of uncontested reliability before this court to correct an admitted error in the evidence adduced at trial. The present evidence was not available at trial purely as a result of trial counsel’s understandable failure to anticipate the need for such evidence in his trial preparation and his understandable failure to perceive the significance of Mr. Robinson’s evidence when he gave it.
[88] It is unfortunate that trial counsel did not seek, prior to trial, to obtain the kind of toxicology evidence that counsel secured for the appeal. In a perfect world, he would have done so. The criminal justice system does not operate in that world. In the circumstances of this case, the best interests of the administration of justice are served by allowing the appellant to adduce evidence on appeal that is admittedly reliable and corrects a potentially significant factual error in the evidence led by the Crown at trial. I would admit the toxicology evidence on appeal.
[89] Where an appellate court admits fresh evidence on an appeal from conviction, it must quash the conviction and either order a new trial or an acquittal: R. v. Stolar (1988), 1988 CanLII 65 (SCC), 40 C.C.C. (3d) 1 (S.C.C.). As already indicated, I think the toxicology evidence justifies a new trial on the charge of first degree murder.
IV
CONCLUSION
[90] It is unnecessary to consider either the admissibility of the pathology evidence or the other grounds of appeal arising out of the trial record since those grounds, if successful, would also lead to a new trial on the first degree murder charge.
[91] I would allow the appeal, quash the conviction and order a new trial on the first degree murder charge.
RELEASED: “DD” “MAY 02 2008”
“Doherty J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree E.E. Gillese J.A.”
[^1]: At one point during his oral argument in response to questions from the court, counsel for the appellant submitted that if the pathology evidence was admitted on appeal, it virtually excluded first degree murder as a reasonable verdict and that the appropriate order should be a new trial on second degree murder. This submission assumes that the pathology evidence proffered on appeal establishes that Hanson’s head injury could not have been caused by a blow to the head. I agree with the Crown’s contention that the pathology evidence, including the evidence offered by the Crown on appeal, does not go that far. Whether the injury was caused by a blow or a fall remains a live issue even in the light of the fresh pathology evidence.
[^2]: Both the defence experts and the Crown expert who gave evidence on appeal disagreed with Dr. McLellan. They indicated that neurogenic pulmonary oedema may develop within minutes of a fatal head injury. These opinions formed part of the pathology evidence offered on appeal. I need not decide its admissibility. It will presumably be available on the retrial.