R. v. Mathisen, 2008 ONCA 747

CITATION: R. v. Mathisen, 2008 ONCA 747

DATE: 20081105

DOCKET: C44720

COURT OF APPEAL FOR ONTARIO

Laskin and Gillese JJ.A. and Whalen J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Jens Mathisen

Appellant

Clayton C. Ruby and Sarah Loosemore, for the appellant

Leslie Paine, for the respondent

Heard: April 7 and 8, 2008

On appeal from the conviction entered by Justice C. Stephen Glithero of the Superior Court of Justice, on November 24, 2005, sitting with a jury.

Laskin J.A.:

A. INTRODUCTION

[1] Jane Mathisen died during a physical altercation with her husband, the appellant Peter Mathisen. He was charged with second degree murder.

[2] The Crown alleged that Mr. Mathisen killed his wife in anger because she was having an affair and had decided to leave him. The Crown relied on the evidence of a pathologist who testified that Jane Mathisen died from manual strangulation and blunt force injury.

[3] Mr. Mathisen admitted causing his wife’s death. But he testified that he did not mean to kill her. He defended the charge against him on the basis of self-defence, necessity and accident. He claimed that his wife had been trying to kill him, by poisoning him and by setting a fire in their house, and that their altercation began when he confronted her and tried to obtain information about the poison or an antidote. He testified that during their confrontation his wife said to him: “why can’t you just die like an ordinary person”, and “you’re a dead man.” He relied on the evidence of a pathologist who testified that Jane Mathisen’s death was consistent with traumatic asphyxia.[^1] Mr. Mathisen submitted that either he should be acquitted or convicted of manslaughter.

[4] The jury convicted Mr. Mathisen of second degree murder. He was sentenced to life imprisonment without egibility for parole for 10 years. In this court, he raised numerous grounds of appeal. We called on the Crown to respond to the following four grounds:

1. The trial judge erred in law by failing to leave with the jury the two main self-defence provisions of the Criminal Code, ss. 34(1) and 34(2);

2. The trial judge erred in law by failing to properly instruct the jury on the defence of accident;

3. The trial judge erred by excluding from evidence two videotaped statements Mr. Mathisen made to the police after his arrest; and

4. The trial judge erred by failing to summarize the weaknesses in the testimony of the Crown’s pathologist.

B. BACKGROUND

1. The Parties

[5] Jane Mathisen died on October 11, 2001. She and Peter Mathisen had been married for 24 years. They had three children: two boys and a girl; the youngest was 18 at the time of her mother’s death. In 1995, Mr. and Mrs. Mathisen bought a house in Brantford, Ontario and settled there.

[6] Mrs. Mathisen studied nursing, and then microbiology. However, while living in Brantford she began a career in real estate. For many years Mr. Mathisen worked in the aviation industry. He then took a job with a company called Koolatron, selling thermoelectric coolers. He was in charge of truck stops throughout the United States.

[7] Mr. Mathisen is a big man. He is 6 feet 4 inches tall, and in October 2001, he weighed 380 pounds. His wife was 5 feet 2 inches tall, and weighed 165 pounds. During the trial, witnesses repeatedly described Mr. Mathisen as friendly and humorous, and as a man of integrity. He was not known to be violent. In contrast, the three children described their mother as erratic, easily angered and sometimes violent.

2. Mrs. Mathisen’s Affair and the Marriage Breakdown

[8] The Mathisens were having marital problems before her death. They tried to rekindle their relationship by taking a cruise together, but to no avail. Mrs. Mathisen apparently found her husband’s weight gain because of thyroid cancer “rather unappealing”. Their marital difficulties were no doubt exacerbated by their financial difficulties. According to a family friend, “the entire time of, of knowing Peter and Jane they, they seemed to have a lack of finances. That was not, that was not a new circumstance”. Eventually Mrs. Mathisen decided to end the marriage.

[9] In May or June 2001, Jane Mathisen acted as the real estate agent for a man named Bill Peloza. Their business relationship soon turned into an intimate relationship. At first they visited one another once or twice a week. However, their affair quickly evolved into phone calls or visits “almost every other evening”.

[10] By August 2001, Mr. Mathisen became suspicious that his wife was having an affair. He noticed a change in her. She began to buy “fancier clothes”, wear more makeup and go out in the evenings. In mid-September, before leaving on a business trip to the United States, Mr. Mathisen confronted his wife about his suspicions. She admitted that she had been seeing another man, though she insisted that he was just a friend. Mr. Mathisen gave her an ultimatum: they could either separate or make their marriage work. He asked her to consider what she wanted to do while he was away.

[11] When Mr. Mathisen returned from his business trip on September 21, 2001, his wife told him that she wanted to separate and that she wanted a divorce. However, she said that she planned to stay in their home until January 2002. Mr. Mathisen told her that would be difficult for him unless she stopped seeing Bill Peloza. She replied that if he did not like the arrangement he should speak to a lawyer.

[12] On September 30, 2001, Mr. Mathisen telephoned Bill Peloza and asked to meet with him. Mr. Peloza acceded to the request because Mr. Mathisen acted like “a gentleman”. Throughout the meeting Mr. Mathisen was very polite. He asked Mr. Peloza to stop seeing his wife because he still hoped to make their relationship work. Mr. Peloza said “he would see what he could do”. However, he and Jane Mathisen continued to see each other until the night before she died.

[13] Meanwhile, at the beginning of October 2001, Peter Mathisen bought a telephone recording device, and from October 2 to October 5, 2001 he recorded all telephone conversations on the family’s home telephone line. On one of the calls, he believed he heard his wife tell Bill Peloza that she loved him. At that point, Mr. Mathisen realized he could not salvage his marriage. He consulted a lawyer.

3. Financial Issues and Mr. Mathisen’s Suspicions About Being Poisoned

[14] On October 8, 2001, as Peter Mathisen packed for a business trip to El Paso, Texas, he gave his wife a note that he had written to her. The note told her that he had decided not to pay off her $6,000 credit card bill. Jane Mathisen became angry when she read the note. Then, quite unexpectedly, she offered to make him a cup of hot chocolate. He accepted, viewing it as a peace offering.

[15] Peter Mathisen testified that as he drank the hot chocolate he felt an “electrical spark” run through his head. The sensation was unusual, as was the offer. His wife had not served him food in years. She offered him a second cup, which he refused. Later he took a sample of the hot chocolate in a stool sample kit, which he left out on the back porch.

[16] During their conversation about the hot chocolate, Jane Mathisen told her husband about a meatloaf recipe she had seen in a magazine. She said that she wanted to make it for him when he got back from his business trip. He found this unusual too because for years she had hardly ever cooked supper.

[17] Peter Mathisen spent two nights in El Paso. On October 11, 2001, he returned on the “red eye”, arriving in Toronto at 7:00 a.m. He was never able to sleep on planes, and when he landed in Toronto he had not slept for twenty-four hours. When he arrived home, he had a brief discussion with his wife. She asked him about a bottle of vodka he had purchased at the airport. Although she did not drink, she nonetheless asked about the taste of different alcohols. She urged him to buy some Amaretto, which she said had an almond taste. He found her questions bizarre and suspicious.

[18] Although he had not slept for over a day, Mr. Mathisen decided to go to work. Before he left, he and his wife agreed that when he returned that evening they would begin dividing their assets. While he was at work Mrs. Mathisen telephoned him to suggest that if he came home for lunch he should eat the chili in the refrigerator. This offer made Mr. Mathisen very suspicious of his wife’s behaviour. So he decided to come home for lunch and pack a sample of the chili for safekeeping in his office refrigerator.

[19] Because of his growing suspicions his wife was trying to poison him, when Mr. Mathisen returned to work he telephoned his employer’s insurance agent and asked him to remove his wife as beneficiary under his life insurance policy. He asked the agent to substitute his children as beneficiaries. The employee who made the change testified that when Mr. Mathisen came in, he was very upset, had red eyes, and was almost crying.

[20] By the time Mr. Mathisen returned home from work that evening, he had not slept for thirty-four hours. When he walked into the house he was surprised to find that his wife had prepared dinner. He was now extremely suspicious of her behaviour. He took the plate with the least amount of food on it and ate only what she ate.

[21] After dinner, Peter and Jane Mathisen began to divide their property, listing their assets and liabilities. This process made clear their financial problems. They had liabilities of $55,000 and assets of only $18,000, including the equity in their home. Jane Mathisen raised the issue of spousal support. Peter Mathisen responded by telling his wife that he had secretly taped her telephone conversations with Bill Peloza and that two of the children had listened to them. He gave her one of the tapes. He also told her that he had removed her as beneficiary of his employee life insurance plan, and substituted the children as beneficiaries. He said that they could divorce immediately and that “she’d be lucky to get a kitchen chair out of the whole thing.” According to Mr. Mathisen, his wife became extremely angry – “absolutely nuts, madder than hell.”

[22] Mrs. Mathisen then went into the kitchen and loaded the dishwasher. She offered her husband a glass of Pepsi, and said “just finish this off I’m doing up the dishwasher”. Mr. Mathisen drank the Pepsi. He thought it seemed “chalky” and it made his throat “scratchy”. He dismissed the chalkiness as freezer burn.

[23] After she finished loading the dishwasher, Jane Mathisen left the home. By then Peter Mathisen had not slept for thirty-six hours, and he began to realize how tired he was. He poured himself some more Pepsi, and ate some turkey. He then took some NyQuil, ostensibly for his sore throat, and went to bed.

[24] Although Mr. Mathisen suspected his wife had tried to poison him, testing of him by the Centre for Forensic Sciences after he had been arrested did not reveal any poisons or toxins. The Centre tested the hot chocolate and chili and did not detect poison either. Still, the Center’s toxicologist acknowledged that it is difficult to “find something if you don’t know what you’re looking for”.

[25] The Centre also tested the plastic cup from which Peter Mathisen drank the Pepsi on the evening of October 11, 2001. He believed that his wife had put his blood pressure medication in the Pepsi and that is why it tasted chalky. The Centre was able to detect the chalky substance in the cup but had no method to detect whether Mr. Mathisen’s blood pressure medication accounted for the chalkiness.

4. The Fire

[26] Mr. Mathisen testified that after going to bed on the night of October 11, 2001, he awoke to the sounds of pots and pans clanging. He smelled something cooking and fell back asleep. He awoke a second time to a cloud of smoke. He went downstairs and discovered an extinguished fire in the kitchen.

[27] The fire had been deliberately set. It had been caused by a pot of cooking oil brought to a boil. Newspapers, magazines, liquor bottles and food stuff had been arranged around the pot to ignite the fire. Mr. Mathisen believed that his wife had set the fire in her attempt to kill him. The Crown claimed that Mr. Mathisen had set the fire in an attempt to commit suicide.

5. Jane Mathisen’s Death

[28] Peter Mathisen testified that after discovering the extinguished fire in the kitchen, he went back to his bedroom and lay down to contemplate what he should do. He decided to go back to the kitchen and call someone. As he came downstairs, Jane Mathisen walked in the front door.

[29] In his testimony, Mr. Mathisen described the verbal exchange that took place:

And she comes walking in and finds me standing there by the telephone and she goes, “oh, you’re still here.” I said, “that chalky stuff, was that a poison?” She goes, “no it wasn’t a poison.” I said “but it was something”. She says, “why can’t you just die like an ordinary person.” I’m getting more and more upset and uh, and I said, “what’s the antidote?” And she says, “it’s not poison, there is no antidote.” I said, “what is the stuff?” “You’ll never know.” And I said “why?” She says “because you’re a dead man.”

[30] Jane Mathisen then took her keys and turned to the front door. Peter Mathisen thought she was going to leave so he grabbed her by the arm. She tried to hit him in the face with her keys. Then she grabbed his hair. He hit her in the head several times. Then he grabbed her wrist so she could not flail at him anymore. They wrestled and fell to the floor. He ended up on top of her. He continued to hold her arms. His left knee was on her chest. He remembers repeatedly asking for the antidote. She said “it’s not a poison”, and then she kept saying “no, no, no, no, no.”

[31] Eventually, Peter Mathisen realized that his wife was not moving anymore. He called her name four times. She did not answer. He tried to feel for a pulse but could not get one. So he got up and called 9-1-1. He told the 9-1-1 operator “I think she tried to kill me tonight. She said it was the third time she tried to kill me, why can’t I die like an ordinary person? And I lost it.” At trial he testified “[s]o I don’t know how many times I hit her but that was the first time I had ever hit her in anger ever”.

6. The Pathology Evidence

[32] Two pathologists testified: Dr. Chitra Rao, who did the autopsy on Jane Mathisen, testified for the Crown; Dr. Michael Shkrum gave expert testimony for the defence.

(a) Dr. Rao’s Observations and Opinion

[33] After examining Jane Mathisen, Dr. Rao concluded that she had died from manual strangulation and blunt force to the body. Dr. Rao’s examination revealed the following: Jane Mathisen had blunt force injury to her head, face and ears. She had bruising on her chest, hands, arms and right shoulder. She had haemorrhages – from pressure being applied to her chest or neck – on her cheeks, chin, eyes and epiglottis. She also had five broken ribs on her left side, although her right ribs were intact.

[34] Dr. Rao examined Jane Mathisen’s neck. Mrs. Mathisen had some bruising on the muscles and tissues inside her neck. In Dr. Rao’s opinion, this bruising was consistent with manual strangulation. However, none of the bones in Mrs. Mathisen’s neck were broken. She also had no finger marks, abrasions or any other injuries on the outside of her neck.

[35] Dr. Rao acknowledged that in most cases of manual strangulation, bones in the neck are broken. However, she maintained that the absence of neck fractures does not rule out manual strangulation, even for older persons. Whether the neck bones will be fractured depends on the amount and place of pressure and whether the victim’s bones are brittle.

[36] Dr. Rao also acknowledged that resuscitation attempts might account for the internal bruising on Jane Mathisen’s neck. However, in her experience, only rarely does intubation cause bruising to the face and neck, and then only where the intubation was difficult. Moreover, in her opinion, intubation could not account for the extensive bruising observed on Jane Mathisen.

[37] Dr. Rao ruled out traumatic asphyxia as the sole cause of death, largely because of the internal bruising to Jane Mathisen’s neck. However, she also said that in cases of traumatic or compression asphyxia she would expect to see massive haemorrhaging of the eyes, nose and mouth, and blueing above the area of compression. These were not present in this case.

(b) Dr. Shkrum’s Opinion

[38] In Dr. Shkrum’s opinion, the bruising on Jane Mathisen’s chest and her internal injuries were consistent with traumatic asphyxia. He added that human responses to trauma – for example, struggling or taking deep breathes – enhance the force of the compression.

[39] Also in Dr. Shkrum’s opinion, attempts to resuscitate can cause the kind of internal injuries seen on Jane Mathisen’s neck.

[40] Finally, Dr. Shkrum said that the findings of the autopsy were consistent with traumatic asphyxia. Although he knew of only a few case reports where one individual had inflicted traumatic asphyxia on another, in his view, Jane Mathisen could possibly have died merely because of her husband’s weight on her during their struggle on the floor:

Q. Would your findings be, Sir, consistent with an individual, a large individual weighing about 380 pounds claiming that he had kneeled on the chest of a 165 pound woman being Jan[e] Mathisen?

A. Well as I indicated in my opinion to you that unfortunately there isn’t a lot of literature on this particular topic of individuals lying on someone else and causing their death. Certainly in the classic examples of traumatic asphyxia there’s usually some type of large object, like a car or heavy machinery or someone being pinned in machinery and suffering traumatic asphyxia. But there are only a few case reports that detail traumatic asphyxia inflicted by another individual. So, I would say yes the death is consistent with traumatic asphyxia and it is possible for an individual of a large size laying on another person of a smaller size to cause their death by traumatic asphyxia.

[41] Dr. Shkrum also suggested that the compressional force from kneeling on another person increases the likelihood of death and decreases the time for death to occur.

C. ANALYSIS

1. Did the trial judge err in law by failing to leave sections 34(1) and 34(2) with the jury?

(a) Introduction

[42] At trial Mr. Mathisen claimed that he caused his wife’s death in self-defence. His counsel (not Mr. Ruby) asked the trial judge to leave s. 27 of the Criminal Code with the jury. Section 27 provides that a person is justified in using as much force as is reasonably necessary to prevent the commission of an offence. Alternatively, defence counsel asked the trial judge to leave s. 34 with the jury.

[43] The trial judge refused to leave either s. 27 or s. 34 with the jury. He did, however, leave s. 37. Mr. Mathisen does not challenge the trial judge’s ruling on s. 27. But he contends that both s. 34(1) and s. 34(2) had an air of reality and that the trial judge erred in law by failing to leave them for the jury’s consideration. Sections 34(1), 34(2) and 37 of the Criminal Code provide:

34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally or made with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

37(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

37(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[44] Two different scenarios potentially gave rise to Mr. Mathisen’s claim of self-defence. The first scenario arose from Mr. Mathisen’s belief that his wife was trying to kill him by setting the fire in their kitchen and by trying to poison him. He claimed that her attempts to poison him drove him to restrain her and do what was necessary to obtain the antidote and thus save his own life.

[45] The second scenario arose from Mr. Mathisen’s physical struggle with his wife at the door when he tried to prevent her from leaving, and she swung at him with her keys. These two scenarios overlapped, but the “assault” triggering the claim of self-defence differed. In the first scenario, the assault was his wife’s ongoing attempt to kill him, especially by poisoning him; in the second scenario, it was Jane Mathisen’s attempt to hit her husband with her keys.

[46] The trial judge ruled that the self-defence provisions did not apply to the first scenario because, under the Criminal Code, a poisoning does not constitute an assault. He also held that ss. 34(1) and 34(2) had no air of reality under the second scenario. In this court, Mr. Mathisen focused his submission on the first scenario. I will do so as well in these reasons, as I agree with the trial judge that self-defence under the first scenario – either under s. 34(1) or under s. 34(2) – had no air of reality.

(b) The Air of Reality Test

[47] A defence should be put to the jury only if it is sound in law and meets the air of reality test. The air of reality test requires that there be evidence in the record on which a properly instructed jury, acting reasonably, could acquit: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. In applying the air of reality test, a trial judge assumes that the evidence the accused relies on is true. Moreover, the trial judge does not decide the substantive merits of the defence, weigh the evidence, make findings of fact or credibility, or draw firm factual inferences: see Cinous at paras. 53-54.

[48] Thus, in performing this gatekeeper function, a trial judge must not usurp the jury’s role as finder of fact. It is not part of the trial judge’s role to determine whether the defence is or is not likely to succeed. “The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue”: see Cinous at para. 54.

[49] Where the defence has more than one element, as do ss. 34(1) and (2), the air of reality test applies to each of the elements. If any element lacks an air of reality, the defence should not be put to the jury. Further, each of the elements in ss. 34(1) and (2) has both a subjective and an objective component. The subjective component is the accused’s perception of the situation he or she confronts; the objective component requires that the accused’s perception of the situation be objectively reasonable: see Cinous at paras. 93-95.

(c) Section 34(1)

[50] In his ruling on the defences to be left to the jury, the trial judge held that “a surreptitious placement of a poison or other noxious substance into the accused’s drink, some two and a half hours previously, is not an assault nor the continuation of an ongoing assault. It is not an application of force, direct or indirect.”

[51] The Crown argues that, even accepting Mr. Mathisen’s evidence, the trial judge’s ruling is legally correct because under the Code an assault as defined in s. 265 and administering a noxious substance under s. 245 are distinct offences. The Crown points out that historically the common law differentiated between an act of poisoning and an act of assault: see R. v. Smith, [1874] O.J. No. 28 (Q.B.). Thus, as there was no “assault” to trigger s. 34(1), the trial judge was right not to leave this self-defence provision with the jury.

[52] Mr. Mathisen submits that his wife’s ongoing threats to kill him by poisoning him and by setting a fire in the kitchen in law can constitute an assault for the purpose of s. 34(1). Moreover, he says that his wife’s comments “why can’t you die like an ordinary person” and “you’re a dead man” provide a strong basis to infer he felt his life was being threatened.

[53] Mr. Mathisen’s legal submission may well have merit, but I do not think it is necessary to address it on this appeal. I say that because the trial judge left s. 37 with the jury and his instructions on s. 37 removed any prejudice from his refusal to leave s. 34(1).

[54] Self-defence under s. 34(1) has four elements:

• Mr. Mathisen reasonably believed that he was being unlawfully assaulted by Mrs. Mathisen;

• Mr. Mathisen did not provoke the assault by his words, blows or gestures;

• Mr. Mathisen did not intend to kill or seriously injure Mrs. Mathisen; and

• Mr. Mathisen did not use more force than necessary.

[55] Section 37 provides a broader basis for self-defence than s. 34(1). To take advantage of s. 37, Mr. Mathisen need only show that he reasonably believed he was being assaulted and that the force he used to defend himself was not more than necessary to prevent the assault or the repetition of it. Unlike s. 34(1), Mr. Mathisen could rely on s. 37 even if he provoked the assault and even if he intended to kill or seriously injure his wife.

[56] Moreover, even though the trial judge had ruled that a poisoning could not constitute an assault, in his instructions on s. 37 he told the jury otherwise. The trial judge instructed the jury that in determining whether Mr. Mathisen reasonably believed he was being assaulted, it should consider the evidence Mrs. Mathisen had poisoned her husband and had set a fire in the kitchen:

The issue is whether he reasonably believed, in the circumstances as he knew them to be, that he was being assaulted.

You should look at his words and conduct before, at the time and after he used force against her. And you should look at her words and actions at the time and after she used force against him. All these things, and the circumstances in which they happened, may shed light on his state of mind at the time. They may help you decide what he reasonably believed. You should look at the other evidence relevant to his belief. This includes evidence that she had poisoned him or that he believed she had, both that day and previously, that she had set the kitchen fire to harm or get rid of him, that he had inhaled smoke from the fire, that he had little or no sleep that day or the night before, and that if it was not a poison she had given him, it may have been the blood pressure medication, he may have been upset over the matrimonial breakup, and consider the evidence of his reputation for not being violent or aggressive, and his evidence as to her disposition for being violent and the evidence of her children supporting that.

[57] A few moments later, in discussing whether Mr. Mathisen used more force than necessary, the trial judge again invited the jury to consider the evidence of poisoning and setting a fire:

This question requires you to consider the relationship between the assault by Mrs. Mathisen and the force used by him to defend himself against it.

In assessing his beliefs as to what was appropriate, take into account all of the circumstances as to what both of them said or did. Take into account as well the other evidence which may be relevant to his belief. This includes his evidence that she had poisoned him or that he believed she had, both that day and previously, his belief that she had set fire to the kitchen to harm or get rid of him, that he had inhaled smoke and/or carbon monoxide from the fire, that he had had little or no sleep that day or the night before, that if it was not a poison she had given him it may have been the blood pressure medication, his upset over the matrimonial breakup, and the evidence of his reputation for not being aggressive or violent, and his evidence of her disposition to be violent and the evidence of her children supporting that.

[58] Thus, the substance of Mr. Mathisen’s claim of self-defence under s. 34(1) was left for the jury under s. 37 of the Code. The trial judge gave the jury a broad basis on which to acquit the accused because of self-defence.

[59] However, if s. 34(1) is available, is it reversible error to leave only s. 37? In R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, the Supreme Court of Canada discussed Parliament’s intention in enacting s. 37. Lamer C.J., writing for the majority, noted at para. 44 that s. 37’s broad justification appears to render s. 34 redundant. He suggested, at para. 45, that s. 37 serves a “gap-filling role, providing the basis for self-defence where ss. 34 and 35 are not applicable.” In dissent, McLachlin J. restricted the role of s. 37 even more, holding at para. 84 that s. 37 should not apply where death or grievous bodily harm occurs. In such cases, the more specific self-defence provisions, s. 34 or s. 35, should govern.

[60] Accepting that limitation on the use of s. 37, it seems to me, nonetheless, that the question on appeal is this: assuming s. 34(1) were available, was Mr. Mathisen prejudiced by the trial judge’s failure to leave this provision with the jury? In my view, the answer is no. Mr. Mathisen was not prejudiced because of the trial judge’s thorough and fair instructions on s. 37. Those instructions put Mr. Mathisen’s claim at least as well as it could have been put under s. 34(1). Mr. Ruby, in his candid argument for Mr. Mathisen, acknowledged as much: see R. v. Grandin (2001), 2001 BCCA 340, 154 C.C.C. (3d) 408, where the British Columbia Court of Appeal took a similar approach.

[61] In concluding this part, I emphasize that I have not found that the trial judge erred by failing to leave s. 34(1) with the jury. I have concluded only that if s. 34(1) were available, the trial judge’s instructions on s. 37 cured any prejudice that would have flowed from his failure to leave s. 34(1).

(d) Section 34(2)

[62] Mr. Mathisen’s main complaint about the self-defence instructions is the trial judge’s failure to leave s. 34(2) with the jury. The justification afforded by s. 34(2) has three elements:

• Mr. Mathisen reasonably believed that he was being unlawfully assaulted by Mrs. Mathisen;

• Mr. Mathisen caused Mrs. Mathisen’s death because he reasonably feared that she would kill or seriously injury him; and

• Mr. Mathisen reasonably believed that he had no other way to save his life.

[63] Because the trial judge concluded that a “surreptitious poisoning” cannot constitute an assault under s. 34, he did not leave s. 34(2) with the jury on the scenario I have been discussing: Mrs. Mathisen’s ongoing attempts to kill her husband by poisoning him and by setting a fire in their house.

[64] Mr. Mathisen contends that this was an error in law, that s. 34(2) had an air of reality, and that accordingly it should have been left for the jury’s consideration. He makes the valid point that s. 34(2), unlike s. 37, applies even when an accused uses more force than is necessary to prevent the assault. This might have been an important consideration for the jury as Mr. Mathisen was so much taller and weighed so much more than his wife. Moreover, s. 34(2) is available for an accused, such as Mr. Mathisen, who disclaims any intention to kill the victim: see R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 110 C.C.C. (3d) 402 (Ont. C.A.) at p. 433.

[65] However, in my view, the trial judge did not err in refusing to leave s. 34(2) with the jury. Even if Mrs. Mathisen’s alleged ongoing acts of poisoning and setting a fire amounted to an assault, at a minimum the third element of s. 34(2) had no air of reality.

[66] To meet the air of reality test, the third element requires some evidence that Mr. Mathisen actually believed he had no other way to save himself and some evidence that his belief was reasonable. Even accepting that Mr. Mathisen believed his only course of action was to do what he did, that belief was not reasonably based.

[67] If, as Mr. Mathisen testified, his goal was to obtain an antidote and prevent his wife from further harming him, he had many alternatives other than restraining her from leaving the house. He could have let her go; he could have locked the doors; he could have called 9-1-1; he could have gone to a doctor, or to the hospital, or to a poison centre. He did none of these things. At least objectively, his conduct does not satisfy the air of reality test under the third prong of s. 34(2). The trial judge was right not to leave s. 34(2) with the jury.

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

2. Did the trial judge err by failing to properly instruct the jury on the defence of accident?

[69] At trial, Mr. Mathisen relied on the defence of accident. He said that he did not intend to kill his wife; her death was accidental.

[70] In the criminal law “accident” is used in two senses: it refers either to an unintended act (accident as to the actus reus) or to unintended consequences. Mr. Mathisen relies on both senses of accident. He claims that he did not intend the act that killed his wife. Alternatively, he claims that if he intended the act, he did not intend its consequence: his wife’s death.

[71] The trial judge instructed the jury on accident in the sense of unintended consequences, but he did not instruct on accident in the sense of an unintended act. Mr. Mathisen submits that his failure to do so amounts to an error of law requiring a new trial. I agree with that submission.

[72] The trial judge dealt with Mr. Mathisen’s claim that he did not intend to kill his wife by thoroughly and accurately instructing the jury on the mental element of the offence of murder. For example, the trial judge told the jury:

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Mr. Mathisen meant either to kill Mrs. Mathisen or meant to cause her bodily harm that Mr. Mathisen knew was likely to kill her, and was reckless whether she died or not – that is, that he saw the likelihood that she could die from the injury, but went ahead anyway and took the chance. The Crown does not have to prove both. One is enough. All of you do not have to agree on the same state of mind, as long as everyone is sure that at least one of the required states of mind has been proven beyond a reasonable doubt.

[73] No further instruction was required to put before the jury Mr. Mathisen’s defence of an unintended consequence. That defence is nothing more than an argument that Mr. Mathisen lacked the mens rea for murder. As Justice Watt points out in his Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at 780, accident in the sense of an unintended consequence is best handled as part of the mental element of the offence charged. That is what the trial judge did.

[74] However, Mr. Mathisen says not only that did he not intend to kill his wife, but also that he did not even intend the act that resulted in her death. The criminal law punishes people for their conscious voluntary acts. Therefore, if Mr. Mathisen did not intend to commit the act that killed his wife, he is not guilty of murder.

[75] The defence theory was that Mrs. Mathisen died of traumatic asphyxia. Based on the expert evidence, that defence had an air of reality. Only two acts could have caused Mrs. Mathisen’s death by traumatic asphyxia: Mr. Mathisen put his knee on his wife’s chest and kept it there; or, Mr. Mathisen continually sat on his wife’s chest. Thus, the pivotal question is whether there was an air of reality to Mr. Mathisen’s contention that, if he committed either act, he did so unintentionally. If there was an air of reality, the jury should have been instructed on accident as to the actus reus.

[76] The trial judge was well aware of the distinction between unintended acts and unintended consequences. In his ruling on “Defences to be Left to the Jury”, he began the section “The Defence of Accident” with the following sentence: “Accident may arise in the sense that the actus reus was unintended, or in the sense that the consequences were unintended and not foreseen.”

[77] On the trial judge’s view of the evidence, accident as to the actus reus had no air of reality. After referring to two cases where accused claimed the actus reus was unintended, the trial judge said “[t]hat is not the claim here as [Mr. Mathisen] has testified that he intended to apply the physical acts that he did, but that he did not intend the consequences and that they were accidental.” The trial judge, therefore, concluded that: “[T]here is no air of reality, and indeed the evidence is contradictory, to any claim for accident as a defence in respect of the application of the force, as opposed to its result. Accident will not be left as a separate defence.”

[78] Indeed, in his charge, the trial judge invited the jury to find that, when Mr. Mathisen kneeled on his wife’s chest, he committed an assault because he applied force to her intentionally, not accidentally:

Either a manual strangulation or a compression asphyxiation by kneeling on a person’s chest could be an assault. An assault is the intentional application of force, directly or indirectly, to another person without her consent.

Some types of assaultive actions are objectively dangerous.

Kneeling on another person’s chest may be of this less obvious category, and require a careful consideration of the relative sizes of the two persons, and of the duration of the period of kneeling. If you are satisfied beyond a reasonable doubt that Mr. Mathisen strangled her or kneeled on her chest in a manner that was objectively likely to cause harm or injury, and thereby caused her death, then either would be an assault and hence an unlawful act, unless you have a reasonable doubt as to whether it was done in self defence.

[79] Defence counsel appeared to concur with the trial judge’s position. In the pre-charge discussions, the trial judge asked defence counsel what form of accident he wanted left with the jury. Defence counsel, who seemed more focused on the defences of necessity and self-defence than on accident, replied that he would be content with an instruction on intent. Defence counsel reiterated this position in his closing address. In putting forward the defence of self-defence, defence counsel told the jury that, though Mr. Mathisen kneeled on his wife, he did so to preserve his own life; he did not intend the consequences of his kneeling:

In his panicked mind the only way to ensure his safety was to hold her down. She was furious, she was very dangerous. Was the force he was using out of proportion? Again, perhaps in the cold light of day, but not to Peter in his circumstances. From his perspective he is kneeling on her to prevent a continuation of her destructive, assaultive behaviour. He’s kneeling on her with one knee. He is not continuously beating her. He is not kicking her. He is not trying to use a weapon. He is not reacting simply out of rage. Let’s face it, at 380 pounds he could have administered a horrible beating but despite everything that happened he did not. He kneeled on Jane Mathisen. The consequences of Jane Mathisen’s death caused by the kneeling were unintended. I submit to you, if you look at the force applied by Peter in the circumstances which was kneeling on his wife with one knee, which I suggest in his unique desperate circumstances is an appropriate use of force to defence (sic) himself.

[80] Similarly, in her factum in this court, Crown counsel maintained, as had the trial Crown, that even after falling to the floor Mr. Mathisen “was actively sitting on his wife – intentionally applying force to her – in an effort to restrain her … [t]he [a]ppellant’s use of his knee in effecting this purpose may not have been done with calm measure, and may, according to the defence theory, not have been intended to kill her, but it was no accident.”

[81] I have read and re-read Mr. Mathisen’s evidence. And I do not view it in the way the trial judge or defence counsel viewed it. Unquestionably, Mr. Mathisen intended to restrain his wife. However, although his evidence is perhaps equivocal, in several parts of his testimony Mr. Mathisen said or suggested that, though he intended to restrain his wife, he did not intend to kneel on his wife’s chest or sit on her, and did not realize he had done so until after she was dead.

[82] Obviously the confrontation between Mr. Mathisen and his wife was emotionally charged. Mr. Mathisen acknowledged that he did not completely remember exactly what happened between the time he fell on his wife and the time he got off of her. Early in his evidence in chief, however, he discussed in some detail his fight with his wife and then what occurred after they fell to the floor. In this part of his evidence, he appeared to say that he did not appreciate he had put his knee on his wife’s chest:

I got off balance and we both fell right down onto the floor. I landed on top of her and she kept wriggling around and pushing and shoving and kicking. When – in previous years when she absolutely loved to wrestle, I would get her down on the floor and I would sit astride her legs and hold her arms and now she’s basically unable to move and I would wait until she settled down and I waited. In those times I’d wait and then when she settled down I’d let her go, well in many cases she “played possum”, and waited ‘til I let go and then she started again. Well in this particular case I couldn’t sit astride her because her leg, her one leg was up because she was right across the hallway and the hallway’s not that big. So I guess I must have in that desperation put my knee on her. [Emphasis added.]

[83] Later in his evidence in chief, after testifying about discovering that his wife was not moving anymore, Mr. Mathisen was asked: “And what part of your body is on her body, sir?” He answered: “Well I look down and I found my left knee on top of her chest.”

[84] Even if these passages might be said to be ambiguous, there was no ambiguity in two later parts of Mr. Mathisen’s evidence. After stating that his “main restraint was holding her arms”, Mr. Mathisen was asked directly: “Did you use anything other than your hands, sir, during the course of this struggle?”, to which he responded “No.”

[85] And, again on cross-examination, Mr. Mathisen repeated his testimony that he did not appreciate he had been kneeling on his wife’s chest until after she was dead:

Q. All right. Sir I’m going to suggest that this foggy if not absent memory and while you were on top of your wife causing her death is nothing but a convenient explanation for not being able to tell us what really happened. Isn’t that the case?

A. I was holding her down, I was holding her arms and I had my knee on her chest and I was just trying to hold her still.

Q. I thought you said yesterday you must have had your knee on her chest?

A. No I looked down after the fact and saw the knee there.

[86] Admittedly, another passage from Mr. Mathisen’s evidence suggestes that he kneeled on his wife deliberately. This occurs in the following exchange:

Q. All right. Now, Sir, you had earlier admitted and talked about how you had kneeled on Mrs. Mathisen during the course of her struggle?

A. Yes.

Q. And how you observed at one point that she had stopped moving. And your intent, Sir, upon kneeling on her?

A. I was just trying to restrain her. I wanted to know what this, what the antidote was or what the poison was. I didn’t want her to leave my presence. I didn’t want to go back in the car, I didn’t want to go elsewhere in the house and find hypodermic needles or anything else that she might have kicking around to finish me off.

Q. And as we know, Sir, that struggle including the kneeling ended up causing Mrs. Mathisen’s death?

A. Yes, I’m sorry.

Even in this passage, however, Mr. Mathisen’s apparent acceptance that he deliberately kneeled on his wife may be attributable to the way that his counsel framed the question.

[87] The air of reality test assumes Mr. Mathisen’s evidence to be true. Assuming his testimony and the passages I have cited are true, then there is evidence in the record that he kneeled on his wife’s chest accidentally and did not realize he had done so until after she was dead. Put differently, on this evidence, once they fell to the floor, his only intentional act, his only assault, was holding his wife’s arms down. Thus, in my view, there is an air of reality to the defence of accident as to the actus reus. If the jury was instructed on that defence and accepted or had a reasonable doubt that Jane Mathisen died from compression asphyxia, it could have acquitted Mr. Mathisen of murder because the act that caused her death was accidental or unintended.

[88] I certainly recognize that, on the question whether accident as to the actus reus should be left with the jury, the trial judge received no help whatsoever from defence counsel. Moreover, as I have already said, Mr. Mathisen’s own evidence on whether he kneeled on his wife’s chest accidentally is equivocal. Some parts of his evidence suggest that his kneeling was accidental at least one part, and perhaps others, that his kneeling was intentional. And his evidence is the only evidence on the issue. However, a trier of fact is entitled to accept all, some or none of a witness’s testimony. Thus, the jury could accept the exculpatory parts of Mr. Mathisen’s evidence, or at least conclude that they raised a reasonable doubt. Accordingly, I conclude, contrary to the trial judge’s ruling, that the defence of an accidental act should not have been removed from the jury’s consideration. The jury should have been charged both on unintended act and on unintended consequence.

[89] However, in addition to its view of Mr. Mathisen’s evidence, the Crown puts forward two arguments to support the trial judge’s ruling. First, it points out that Mr. Mathisen was talking to his wife throughout their struggle on the floor. Their conversation, the Crown argues, belies any notion that Mr. Mathisen was continually kneeling on his wife accidentally.

[90] I do not agree with this argument. We have to accept that Mr. Mathisen’s evidence is true. And in the charged atmosphere of his confrontation with his wife, I find it entirely conceivable that Mr. Mathisen continued to talk to her and yet did not realize that while doing so he was kneeling on her chest.

[91] Second, the Crown argues that the defence of accident as to the actus reus was contrary to the defence position on necessity and self-defence, and for that reason defence counsel asked only for an instruction on unintended consequences. Accordingly, the Crown contends we should not accede to the defence’s change of position on appeal.

[92] I also do not agree with this argument. I do not find Mr. Mathisen’s claim that he kneeled on his wife accidentally to be necessarily inconsistent with his claim that he acted in self-defence. He acknowledged throughout that he intentionally restrained his wife by pinning her down with his hands in order to extract information about the antidote.

[93] Moreover, keeping from the jury a defence that has an air of reality is an error of law. And it is no less an error of law because an accused or an accused’s counsel does not raise it at trial. As my colleague Doherty J.A. wrote in R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.) at para. 14 “[t]he significance of counsel’s position at trial to the merits of the argument on appeal will depend on the nature of the argument advanced on appeal.” Here, Mr. Mathisen has made out an error of law. At best, counsel’s position at trial is relevant to the application of the curative proviso in s. 686(1)(b)(iii) of the Code. However, the Crown, who bears the onus of showing that no miscarriage of justice occurred, has not attempted to rely on the proviso.

[94] Moreover, I do not think it can fairly be said that removing accident as to the actus reus from the jury’s consideration caused no prejudice to Mr. Mathisen. The defence of accident as to the actus reus was important for his overall defence. Looking at the record as a whole, it seems to me that “accident” was his most realistic or viable defence. The obvious implication of the jury’s verdict is that Mr. Mathisen intended to kill his wife. However, accident as to the actus reus would have a new and different perspective from which to assess Mr. Mathisen’s actions – a different basis on which the jury could have acquitted Mr. Mathisen of the charge of murder.

[95] Moreover, our case law has emphasized that accident in the sense of an unintended act and accident in the sense of unintended consequences are distinct defences. Where both are viable, both must be put to the jury: see, for example, R. v. Culliton, 2000 CanLII 1093 (Ont. C.A.) at para. 8.

[96] I add this: although I have found an air of reality to Mr. Mathisen’s contention that he kneeled on his wife’s chest accidentally, there is no doubt on his evidence that during their struggle on the floor he intentionally held his wife’s arms down. That intentional act was an assault. The trial judge would have been obliged to instruct the jurors on both the implication of finding the kneeling to be accidental and the holding down of Mrs. Mathisen’s arms to be intentional. If, for example, Mrs. Mathisen’s death was caused by the accidental kneeling on her chest, but the jury was satisfied beyond a reasonable doubt that Mr. Mathisen’s unlawful act of holding her arms down subjected her to the risk of harm, then her death would yield a conviction for manslaughter: see R. v. Tennant and Naccarato (1975), 1975 CanLII 605 (ON CA), 7 O.R. (2d) 687 (C.A.).

[97] I would give effect to this ground of appeal. On this ground alone Mr. Mathisen is entitled to a new trial.

3. Did the trial judge err in excluding from evidence Mr. Mathisen’s two videotaped statements to the police?

[98] After his arrest and after he had consulted with counsel, Peter Mathisen gave two videotaped statements to the police. The first took place five and a half hours after his 9-1-1 call; the second, ten and a half hours after his 9-1-1 call.

[99] In both statements Mr. Mathisen is very emotional and experiences several emotional breakdowns. During the first interview, when told that his wife has died, he begins sobbing and puts his face in his hands. Later, when asked if meant to kill his wife, he replies, his voice breaking, “[n]o… I live there. She tried to kill me”. During the second interview he becomes distraught on his realization that his wife tried to kill him. Throughout both interviews Mr. Mathisen appears and sounds exhausted.

[100] Defence counsel brought a pre-trial motion to adduce Mr. Mathisen’s statements as part of the defence case. He argued that the statements were admissible to show Mr. Mathisen’s state of mind at the time he learned he had caused his wife’s death.

[101] The trial judge ruled that the two videotaped statements were “inadmissible at the instance of the defence”. He referred to the judgment of the Supreme Court of Canada in R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3 at para. 24, which holds that, as a general rule, an accused’s out of court statement to a third person is admissible as evidence against the accused, but not for the accused. The trial judge also acknowledged that the rule has exceptions: for example, an accused may be able to introduce a prior consistent statement to a third person to rebut a suggestion of a recently fabricated defence or to show the accused’s state of mind at a relevant time. However, the trial judge held he had “not been made aware of any claim that the state of mind of the accused as may appear in these interviews is relevant to an issue at trial.” Still, the trial judge left it open for defence counsel to renew his motion should the evidence at trial unfold in a way that gave rise to one of the exceptions to the rule. Defence counsel did not bring a further motion.

[102] Now, on appeal, Mr. Mathisen submits that the trial judge erred in his pre-trial ruling excluding the two statements. Mr. Mathisen says that his statements show his state of mind when first confronted by the police, his reaction when told for certain that his wife had died, and his demeanour when talking about his wife and her attempts to kill him. He contends that his state of mind and the veracity of his belief that his wife tried to kill him were live issues for the jury. He points out that any concerns about introducing his statements were reduced because he testified at trial and therefore could be cross-examined on them. I do not accept Mr. Mathisen’s submission.

[103] There are important reasons for the rule precluding the defence from putting into evidence an accused’s prior consistent statement. Where the accused does not testify, “[t]his rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination”: see Simpson at para. 24. Even where an accused has testified, the fact that he or she has previously said the same thing does not make the accused’s trial testimony any more credible or reliable. In other words, the mere repetition of a story does not enhance its truthfulness or its reliability. The law views the prior statement as self-serving and superfluous: see R. v. Curto (2008), 2008 ONCA 161, 230 C.C.C. (3d) 145 (Ont. C.A.).

[104] Nonetheless, as the trial judge recognized, the rule admits of exceptions, and one of those exceptions is to show the state of mind of the accused if relevant to an issue at trial. Under this or any other exception, the statement is admissible not for the truth of its contents, but rather for the fact it was made and the circumstances under which it was made. Moreover, as Doherty J.A. suggested in R. v. Suzack and Pennett (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 183, the danger in admitting a prior consistent or self-serving statement may be alleviated where an accused testifies and is available for cross-examination.

[105] Here, Mr. Mathisen did testify, and both his state of mind when he first learned of his wife’s death and his belief that his wife was trying to kill were live issues at trial. Nonetheless, I agree with the Crown that the trial judge did not err in his ruling excluding the statements.

[106] In his pre-trial motion, defence counsel did not seek to have the videotaped statements admitted to show the veracity of Mr. Mathisen’s belief that his wife was trying to kill him. He sought to have them admitted only to show Mr. Mathisen’s reaction when he first learned of his wife’s death or when he was first accused of his wife’s death.

[107] For these purposes, the statements had no value. When Mr. Mathisen’s first interview began – at 5:24 a.m. – he believed his wife to have been dead for more than five hours. He told the 9-1-1 operator at midnight that he thought he had killed his wife. He also told the first officer on the scene that his wife had tried to kill him and that he had killed her. That officer arrested Mr. Mathisen for his wife’s murder at 12:10 a.m. Thus, Mr. Mathisen’s statements to the 9-1-1 operator and the arresting officer less than one hour after he caused his wife’s death were far better evidence of Mr. Mathisen’s emotional reaction to the death of his wife and his potential liability for it, than his emotional reaction five hours later, and significantly, five hours after he had been arrested and had an opportunity to consult counsel.

[108] In this court, Mr. Mathisen seeks to overturn the trial judge’s ruling by casting the basis for the admissibility of the statements differently: to show his belief that his wife was trying to kill him. The trial judge surely cannot be faulted for not addressing this basis for admissibility, as it was never put to him. Even if it had, I do not think that it could have succeeded because, again, Mr. Mathisen’s statement to the 9-1-1 operator and arresting officer together with his own trial testimony were far better evidence of his belief. From this evidence, and without the videotapes, the jury was well aware of Mr. Mathisen’s claim that his wife was trying to kill him.

[109] Finally, I consider it telling against this ground of appeal that, though the trial judge did not foreclose the renewal of the motion to admit the videotape statements, defence counsel did not renew his motion. Although this court will forgive an omission of counsel to prevent a miscarriage of justice, we will be far less inclined to do so where the omission was a deliberate tactical decision. As Ms. Paine for the Crown points out, that may well have been the case here.

[110] The first videotaped statement raised a problem for the defence: on a key issue, Mr. Mathisen’s statement was inconsistent with his trial testimony. The key issue was his reason for assaulting his wife. In his statement when asked why he became physical with his wife he answered that he wanted to know why she had tried to poison him:

M: I said, “Now that’s the second time you tried to kill me.” She goes, “No it’s not. That’s the third time.” (Gestures with both hands and puts head in hand)

N: Is that why you got physical?

M: Um Hm. I just wanted to know why? Why? Why? Why? Why? Why?

N: She didn’t give you an answer?

M: Nope.

[111] In his videotaped statement, Mr. Mathisen showed no concern or urgency about any poisoning; he said nothing about any symptoms he was suffering. Yet, in his trial evidence he testified that he sought to restrain his wife to get the “antidote”. Thus, Mr. Mathisen’s videotaped statement would have undermined his defence of self-defence, which he had put forward in his trial testimony. That is a credible reason why defence counsel did not renew the motion.

[112] I would not give effect to this ground of appeal.

4. Did the trial judge err by failing to summarize the weaknesses in the testimony of the Crown’s pathologist?

[113] Mr. Mathisen submits that the trial judge erred by failing to summarize for the jury weaknesses in the evidence of Dr. Rao. I do not accept this submission.

[114] A trial judge is not required to review every aspect of a witness’s evidence. A trial judge should, however, adequately and fairly summarize the evidence. A trial judge should also instruct the jurors that they ought to consider all the evidence in the case, and that they ought to rely on their own recollection of the evidence rather than the trial judge’s recollection. The trial judge in this case met that standard.

[115] Just before he reviewed the expert evidence, he gave the jury this salutary reminder:

Examine the evidence of each expert with equal care and attention, in the way that I have just described. Consider their evidence with the other evidence that relates to this issue in deciding the manner of death.

The law requires, members of the jury, that I make adequate review of the evidence for you. What is adequate depends on the circumstances of each case. If I repeated what every witness told you over the eight days we heard evidence, we would be here for eight days while I repeated it. So what I say is by way of summary. It is an indication of what I thought to be significant according to the notes I made while the witnesses were testifying. But I repeat, it is your understanding of what they said that has to govern, not mine. If I left something out you think is important, follow your own recollection. If I say something wrong, ignore it, follow your own recollection of the evidence.

Let me turn then firstly, to a review of the evidence of the people who testified as experts in this case …

[116] The trial judge then reviewed the evidence of Dr. Rao in considerable detail. His review was balanced as he discussed both her evidence-in-chief and the arguable weaknesses in her evidence brought out on cross-examination. For example, he reminded the jury of Dr. Rao’s concession and opinion on a central plank of the defence: the absence of finger marks on Jane Mathisen’s neck and the absence of any fracture to her neck suggested that she did not die from manual strangulation. He said:

No finger marks on the neck, she agreed, no nail marks. And she agreed the neck structures were intact. She agreed they are often broken in a manual strangulation case but not necessarily so. And the fact they are not broken does not rule out manual strangulation.

[117] Even the defence expert, Dr. Shkrum, agreed that in adults the absence of neck fractures does not rule out manual strangulation. Defence counsel did not object to the trial judge’s review of Dr. Rao’s evidence. The lack of an objection is a further indication that the trial judge’s review was fair and accurate. I would not give effect to this ground of appeal.

5. Other grounds of appeal

(a) Necessity

[118] At trial, defence counsel asked the trial judge to leave the defence of necessity with the jury. The trial judge refused to do so. He held that this defence had no air of reality. Mr. Mathisen submits that the trial judge erred in law in failing to leave necessity with the jury. We disagree.

[119] The defence of necessity applies to a very narrow set of circumstances. It requires the presence of three elements: imminent peril; the absence of any reasonable legal alternative; and, proportionality between the harm inflicted and the harm avoided: see R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3.

[120] The trial judge concluded that none of these elements had an air of reality. The peril from the attempted poisoning and even from the fire was not imminent: it was not “on the verge of transpiring and virtually certain to occur”. Mr. Mathisen could have availed himself of several reasonable legal alternatives: he could have called 9-1-1, sought medical assistance, or sought the assistance of the police to obtain information from his wife. And, in the light of the evidence the poison had not acted on Mr. Mathisen, causing his wife’s death was not a proportionate response.

[121] Accordingly, we see no error in the trial judge’s reasons for refusing to leave the defence of necessity with the jury.

(b) Dr. Rosenbloom and carbon monoxide poising

[122] The defence argued that Mr. Mathisen’s actions had to be assessed in the light of his mental state. His mental state was affected by sleep deprivation, possibly by the ingestion of a poison, and, importantly for this ground of appeal, by the inhalation of smoke and carbon monoxide from the fire. The defence sought to qualify Dr. Rosenbloom, a licensed pharmacist, to give expert opinion evidence on “the general effects of carbon monoxide poisoning, both physical and cognitive.”

[123] The Crown did not oppose the defence’s request that Dr. Rosenbloom give evidence of the physical effects of carbon monoxide poisoning. These effects were well established in the literature, and a Crown forensic toxicologist had already testified to these effects. The trial judge ruled that Dr. Rosenbloom would be permitted to give opinion evidence on the physical effects of carbon monoxide poisoning and on the effects of Mr. Mathisen’s blood pressure medication, but not on the neuropsychiatric or cognitive effects of carbon monoxide poisoning.

[124] Mr. Mathisen submits that the trial judge erred in refusing to permit Dr. Rosenbloom to give opinion evidence on carbon monoxide’s cognitive effects or on whether Mr. Mathisen suffered from any of these effects when he caused his wife’s death. Again, we disagree. The trial judge correctly ruled that Dr. Rosenbloom was not a qualified expert on the subject of the cognitive effects of carbon monoxide poisoning. He properly noted:

• Dr. Rosenbloom is a pharmacist, trained in the clinical use of drugs on patients; he holds no degrees in medicine, psychiatry, psychology or toxicology;

• Carbon monoxide is not a drug; the subject of carbon monoxide poisoning falls within the discipline of forensic toxicology;

• Dr. Rosenbloom’s curriculum vitae lists no published articles on the effects of carbon monoxide;

• Dr. Rosenbloom has no formal training in carbon monoxide poisoning, and has not conducted any research in the area;

• Although Dr. Rosenbloom has participated in the treatment of five to ten persons suffering from carbon monoxide poisoning, he has always done so as a member of a treatment team with other professionals, including doctors.

[125] Mr. Mathisen contends that Dr. Rosenbloom was qualified because he had extensively reviewed the medical literature on the effects of carbon monoxide poisoning. However, we agree with the trial judge that this alone did not qualify Dr. Rosenbloom to give an expert opinion outside the area of his field of expertise:

In my opinion, it is inappropriate to find a witness to be a properly qualified expert where the source of the proposed expertise comes from reviewing literature – albeit with a facility that most of us would not have – but in respect of a subject matter that is outside the field of that witnesses’ (sic) education and training. In particular, the bulk of the opinion letter deals with neuropsychiatric problems attributed to carbon monoxide and purports to qualify or bolster as being reasonable the reports made by Mr. Mathisen to this witness in respect of neurological or behavioural aspects, which in my opinion, are not within Dr. Rosenbloom’s sphere of expertise in the ordinary sense.

[126] Indeed, as the Crown points out, were it otherwise, courts would be obliged to qualify as experts persons who could not offer real opinions of their own on any given subject but could only point to what they had read.

(c) The Crown’s closing

[127] Mr. Mathisen submits that the Crown’s closing address to the jury was improper because he made several suggestions unsupported by the evidence. For example, the Crown suggested to the jury that Mr. Mathisen deliberately set the fire in the kitchen in an attempt to commit suicide. Mr. Mathisen claimed that there was no evidence to support this suggestion. Overall, according to Mr. Mathisen, these unsupported suggestions were prejudicial and contributed to his unfair trial.

[128] We do not accede to this submission. We see nothing improper in the Crown’s closing. In our view, the impugned suggestions of the Crown were reasonable inferences from the evidence. Thus, the Crown was entitled to ask the jury to draw the inference that Mr. Mathisen had deliberately set the fire. Notably, defence counsel did not object to the Crown’s closing.

(d) The trial judge’s instruction on recklessness

[129] Mr. Mathisen submits that the trial judge erred in his charge to the jury on the recklessness component of the intent for murder under s. 229(a)(ii) of the Criminal Code. The trial judge’s charge contained this instruction:

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Mr. Mathisen meant either to kill Mrs. Mathisen or meant to cause her bodily harm that Mr. Mathisen knew was likely to kill her, and was reckless whether she died or not – that is, that he saw the likelihood that she could die from the injury, but went ahead anyway and took the chance.

[130] Mr. Mathisen contends this instruction was wrong because it allowed for the possibility that he could be convicted of murder if he thought his wife could die from her injuries. Instead, the trial judge should have told the jury that to be guilty of murder under this branch of the Code, a person must foresee the likelihood of death, not just the risk of death. In making this submission, Mr. Mathisen relies on the judgment of this court in R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199, leave to appeal refused [2004] S.C.C.A. No. 502.

[131] In our view, the trial judge’s instruction was correct. In Czibulka this court held that a charge on the recklessness component of the intent for murder is wrong if it refers only to the danger that an accused’s conduct could bring about death. As Mr. Mathisen argued, an accused must foresee the likelihood of death, not just the risk.

[132] However, the trial judge did instruct the jury that, for Mr. Mathisen to be guilty of murder, the Crown had to prove “that he saw the likelihood that she could die from the injury” (emphasis added). Moreover, the trial judge’s instruction conformed exactly to Watt’s Manual of Criminal Jury Instructions on s. 229(a)(ii) as revised after this court’s decision in Czibulka. Accordingly, this ground of appeal failed.

D. CONCLUSION

[133] I would allow the appeal. In my view, the trial judge erred in law by failing to leave with the jury the defence of accident as to the actus reus. I would set aside Mr. Mathisen’s conviction for second degree murder and order a new trial.

RELEASED: November 5, 2008 “John Laskin J.A.”

“JL” “I agree E.E. Gillese J.A.”

“I agree L. Whalen J. per J.L.”

[^1]: Asphyxia – “a stopping of the pulse” in Greek – means pathological changes caused by lack of oxygen in respired air. Traumatic asphyxia means asphyxia occurring as a result of sudden or severe compression of the chest or upper abdomen, or both: see Dorland’s Illustrated Medical Dictionary, 31st edition (Saunders Elevier, Philadelphia, Pa.) at 167. In the record, the terms traumatic asphyxia and compression asphyxia are used interchangeably.