CITATION: R. v. Polimac, 2010 ONCA 346
DATE: 20100512
DOCKET: C46344
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Doherty and Feldman JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Milorad Polimac
Appellant
Philip Campbell, for the appellant
John Pearson and Robin Flumerfelt, for the respondent
Heard: November 24 and 25, 2009
On appeal from the conviction for first degree murder entered by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury, on November 16, 2006.
Doherty J.A.:
I. OVERVIEW
[1] In the late afternoon of November 23, 2003, the appellant and Angie Pauls, his common law wife of some 25 years, were alone together on a rocky outcropping located on the Niagara Escarpment several metres from a hiking trail in the Mount Nemo Conservation Area in Burlington, Ontario. Seconds after they decided to leave, Ms. Pauls was lying in a gully almost 20 metres below. Her neck was broken. She died there.
[2] The appellant was charged with first degree murder. The outcome of the trial turned essentially on a single issue – could the Crown prove beyond a reasonable doubt that the appellant had pushed Ms. Pauls off the cliff to her death? If the Crown could satisfy the jury that the appellant had pushed Ms. Pauls to her death, the further findings that he intended to kill her and that he had planned and deliberated the murder were readily available. However, if the Crown could not prove beyond a reasonable doubt that the appellant pushed Ms. Pauls off the cliff, an acquittal was the only possible verdict.
[3] The Crown’s case was circumstantial. There was evidence of opportunity. The appellant was the only person near Ms. Pauls when she died.
[4] There was also evidence of motive. The appellant was involved in a long-term ongoing affair with another woman, Honorine Veldmeyer. Ms. Pauls had discovered that affair in 2002, about a year before her death. The appellant had, however, remained with Ms. Pauls. Their relationship became tenser after Ms. Veldmeyer gave birth to the appellant’s child early in 2003. On the Crown’s theory, the relationship between Ms. Pauls and the appellant became more strained in the months leading up to her death. The Crown contended that the appellant became verbally and sometimes physically abusive towards Ms. Pauls. On the Crown’s theory, the appellant decided to end his relationship with Ms. Pauls so he could start a new life with Ms. Veldmeyer and their baby. However, he did not want to give up his cherished home, which he jointly owned with Ms. Pauls. The Crown alleged that the appellant decided that murder was the solution to his problems.
[5] The Crown also relied on statements made by the appellant concerning the circumstances surrounding Ms. Pauls’ fall and his efforts to help her. The Crown alleged that these statements contained certain admissions. The Crown further contended that the statements contained a number of fabrications that could support the inference that the appellant had planned to take Ms. Pauls to the remote location, push her from the cliff and make it seem like an accident, and had carried out that plan on November 23, 2003.
[6] In addition to opportunity, motive and the appellant’s statements, the Crown relied on after-the-fact conduct by the appellant as indicative of his guilt. In particular, the Crown relied on the appellant’s concerted efforts to hide his ongoing affair from the police and mislead them in the course of their investigation. There was also evidence of other after-the-fact conduct that was relatively insignificant at the trial. I will refer to some of this other evidence when I address the third ground of appeal.
[7] The appellant testified and denied pushing Ms. Pauls off the cliff. He gave a detailed description of her accident and his efforts to help her. The defence maintained that the appellant’s testimony on central points was consistent with the many statements he had made to the first responders, the police and others in the minutes, days and months following Ms. Pauls’ death.
[8] The appellant admitted having a long-term affair and conceded that it put considerable strain on his relationship with Ms. Pauls, particularly after Ms. Veldmeyer had their baby in February 2003. The appellant testified, however, that by the time of Ms. Pauls’ death in November 2003, he had decided that he wanted to be with Ms. Pauls and was committed to that relationship.
[9] The defence adduced evidence that Ms. Pauls was taking medication that could have affected her balance. She was prone to leg cramps and was significantly overweight. Her friends considered her to be somewhat clumsy. The defence argued that one or more of these facts could have caused Ms. Pauls to lose her balance and fall off the cliff.
[10] The appellant explained that he lied to the police about his affair because he wanted to protect his child and was afraid that if the police knew about the affair, they would become suspicious. He also contended that the after-the-fact conduct relied on by the Crown, apart from the evidence about his efforts to conceal his affair, had no possible probative value.
[11] The jury convicted the appellant of first degree murder.
[12] Counsel for the appellant focused his oral argument on three submissions:
• the trial judge erred in admitting certain statements made by Ms. Pauls to friends;[^1]
• the trial judge erred in her instructions to the jury relating to the permissible uses of statements made by the appellant concerning the events surrounding Ms. Pauls’ fall; and
• the trial judge erred in her instructions to the jury relating to the evidentiary value of certain after-the-fact conduct.
[13] I would dismiss the appeal. The statements made by Ms. Pauls were properly admitted by the trial judge. The impugned jury instructions do not reveal reversible error.
II. THE FACTS
(a) Events Prior to Ms. Pauls’ Death
[14] The appellant and Ms. Pauls began to live together in 1982. They purchased a home at 17 Ivan Avenue in Grimsby, Ontario around 1988. By all accounts, they both enjoyed their home and were happy until 1999, when the appellant began a long-term affair with Ms. Veldmeyer. The appellant led Ms. Veldmeyer to believe that although he continued to live with Ms. Pauls, their spousal relationship was over. This was not true.
[15] Ms. Pauls first suspected that the appellant was having an affair in 1999. She confronted him but he denied it. Their friends noticed that his attitude toward her began to change around that time. The appellant became curt and verbally abusive toward Ms. Pauls.
[16] Ms. Veldmeyer became pregnant in 2001 but, against the appellant’s wishes, decided to have an abortion. The appellant told her that he wanted to marry her and went so far as to buy her an engagement ring. At the same time, the appellant continued to live with Ms. Pauls and deny that he was having an affair.
[17] Ms. Veldmeyer became pregnant for a second time in the spring of 2002. The appellant again asked her to marry him, and they made plans for a fall wedding. He gave her an engagement ring on October 2, 2002. He was still living at 17 Ivan Avenue with Ms. Pauls and still denying that he was having an affair.
[18] In September or October 2002, Ms. Pauls found receipts for a wedding dress and an engagement ring. She confronted the appellant and he finally admitted that he was having an affair with Ms. Veldmeyer. He told Ms. Pauls that Ms. Veldmeyer was pregnant. Ms. Pauls went to see a lawyer in November 2002 to discuss separation from the appellant. Friends noticed that the relationship between the appellant and Ms. Pauls became very strained. They were barely civil to each other.
[19] The appellant had a strong emotional attachment to their home at 17 Ivan Avenue. As it was their principal mutual asset, the home became the focal point of much discussion as their relationship deteriorated in late 2002 through to 2003. Several witnesses testified that the appellant was adamant that he would not allow the house to be sold to generate the funds necessary to divide the family assets if he and Ms. Pauls dissolved their relationship. The appellant told Ms. Pauls and various friends that he would rather “burn the place down” than let a realtor into the home. For her part, Ms. Pauls indicated that she was too afraid of what the appellant might do to force him to sell the house. The appellant testified that if he had to, he could have raised the money to pay Ms. Pauls for her interest in the house. The Crown challenged that claim. The evidence on the issue was unclear.
[20] Ms. Veldmeyer gave birth to the appellant’s child in February 2003. At the time, the appellant was on holiday in Mexico with Ms. Pauls and two friends, Johann and Renate Lutsch. According to Mr. and Mrs. Lutsch, things became very tense between the appellant and Ms. Pauls. She was upset, angry and embarrassed. Her friends knew about the pending birth of the appellant’s child. According to the appellant, he and Ms. Pauls decided to work things out during this vacation.
[21] Ms. Veldmeyer was angry at the appellant for not being present at the birth of his child. However, she relented when it became obvious to her that the appellant was strongly attached to his new daughter. The appellant asked Ms. Veldmeyer to “wait a while longer” as he made the necessary arrangements to sell the home at 17 Ivan Avenue and come to a financial settlement with Ms. Pauls.
[22] In October 2003, the appellant returned the engagement ring to Ms. Veldmeyer. She had given it back to him some time before that. The appellant assured Ms. Veldmeyer that things would get settled but he asked her not to show the ring around.
[23] The Crown led evidence that, by the summer of 2003, Ms. Pauls was afraid of the appellant and the appellant had physically assaulted her on at least two occasions. That evidence consisted of statements made by Ms. Pauls to friends. The appellant challenges the admissibility of some of that evidence. I will review that evidence when I consider the first ground of appeal.
[24] It is sufficient for the purposes of this summary to indicate that Ms. Pauls told friends that she was subjected to both physical and emotional abuse by the appellant during the summer and fall of 2003. She told these same friends that she was afraid of the appellant and could not bring their relationship to a head either by compelling him to leave home or by leaving herself. She spoke of sleeping with a machete beside her bed because of her fear of the appellant and asked two friends to notify the police if anything happened to her.
[25] The appellant testified that there were tensions in his relationship with Ms. Pauls brought on by his continued affair with Ms. Veldmeyer and the arrival of their child. He denied that he ever physically assaulted Ms. Pauls. In answer to the specific allegations, he indicated that Ms. Pauls may have fallen against the fridge because her medication caused leg cramps. He also denied ever threatening her with a knife.
[26] Ms. Veldmeyer testified that after their child was born, the appellant told her they would be married and live together in the house at 17 Ivan Avenue. In the fall of 2003, he would often drive her and the child past the house and they would discuss which room would be the baby’s room. On the Friday two days before Ms. Pauls’ death, Ms. Veldmeyer met the appellant for lunch. He seemed tense and agitated. The appellant told Ms. Veldmeyer that starting the next weekend he would be able to go to church with her on Sundays.
[27] The appellant testified that his visits with Ms. Veldmeyer were primarily to see his baby and not Ms. Veldmeyer. He said he never suggested they would move into the home on Ivan Avenue and that, although he returned the engagement ring to Ms. Veldmeyer, he had no intention of marrying her. He planned to stay with Ms. Pauls. The appellant explained that his reference to being available to go to church the next weekend was based on an anticipated change in his work schedule.
(b) Ms. Pauls’ Death
[28] The appellant went to the Mount Nemo Conservation Area on Saturday, November 22, 2003. He did not tell the authorities about this trip until March 21, 2004. There was evidence that when he ultimately disclosed this fact to the police, he believed they were already aware of it through their investigation.
[29] On Sunday, November 23, 2003, the appellant and Ms. Pauls went hiking in the Mount Nemo Conservation Area. They sometimes hiked together, although there was evidence that while Ms. Pauls enjoyed being outdoors with the appellant, she did not enjoy hiking.
[30] The appellant and Ms. Pauls spent the morning doing work around the house. A neighbour testified that they seemed to be in a good mood. The appellant and Ms. Pauls had plans to take on a significant new cleaning contract the next week.
[31] The appellant and Ms. Pauls left home early in the afternoon and arrived at the conservation area about 2:00 p.m. It was a sunny late fall day. There were many cars in the parking area and a lot of activity within the conservation area. The appellant and Ms. Pauls walked a long distance along the trail before leaving the trail and travelling a short distance to a rocky outcropping on the Niagara Escarpment. The appellant testified that he and Ms. Pauls decided to climb the rocky outcropping and have their picnic on a flat platform area on top of the outcropping. There was a drop of about 60 feet from the edge. There was evidence that Ms. Pauls was afraid of heights.
[32] According to the appellant, he and Ms. Pauls had a relaxed and enjoyable lunch. Afterward, they prepared to hike back to their car. The appellant climbed down from the platform and began to walk up a short path that led back towards the main trail. His back was turned to Ms. Pauls. The appellant testified that as he neared the main trail, he heard Ms. Pauls say that she saw something below the outcropping. Without turning around, he said words to the effect, “Let’s go, it doesn’t matter”. The appellant had not finished his sentence when he heard a scream. He turned around but could not see Ms. Pauls. At trial, the appellant testified that he ran to where they had been picnicking and looked down to see Ms. Pauls lying at the bottom of the cliff. He saw her body roll “from left to the right”. In one of his statements to the police, the appellant indicated that he saw Ms. Pauls’ body “bouncing” down the steep hill below the cliff.
[33] The appellant testified that he did not shout down to Ms. Pauls, but instead immediately scrambled down the side of the steep cliff, sliding on his backside and legs to the gully below. When the appellant got to Ms. Pauls, she was lying on her back. He tried to lift her, but could move her only a few feet. He testified that she asked him to go for help. He made his way down the steep and difficult terrain to the nearby home of Mr. Wiens, who called for help. The appellant testified that he immediately returned to Ms. Pauls and was by her side when the firefighters, followed by the paramedics, arrived. The firefighters administered CPR. When a paramedic arrived, she checked for vital signs and declared Ms. Pauls dead. Ms. Pauls died of a broken neck. The other injuries revealed by the subsequent post-mortem could also be attributed to her fall.
[34] The Crown introduced various statements made by the appellant to the emergency responders in which the appellant described the accident and his efforts to help Ms. Pauls. The appellant also performed a videotaped “walkthrough” for the police on December 5, 2003, in which he retraced his steps and described what had happened. He gave a further audiotaped statement on March 21, 2004.
[35] In the videotaped walkthrough, the appellant told the police that when he heard Ms. Pauls scream, he immediately rushed back to the platform area where they had picnicked, looked down and saw her body. The Crown led evidence that the body was only visible from the edge from which Ms. Pauls had fallen, which was on the other side of the outcropping. The Crown argued to the jury that the appellant had inadvertently admitted that he was standing next to Ms. Pauls when she went over the edge.
[36] In his testimony, the appellant explained that he had not meant to indicate to the police the exact location from which he saw the body in his videotaped walkthrough. He testified that from wherever he stood on the rock after hearing the scream, he was able to see Ms. Pauls’ body.
[37] In the audiotaped statement, the appellant told the police that Ms. Pauls’ body was still moving down the hill when he ran to the edge of the rock and looked down. The Crown argued that if the appellant was, as he claimed, on his way back up to the main trail when he heard the scream, he would not have had time to get back to the edge of the rock, look down and see the body while it was still rolling down the hill. The Crown submitted that the appellant’s acknowledgement that he saw the body rolling down the hill was an admission that he was standing on the edge of the precipice when Ms. Pauls plunged to her death.
[38] In addition to relying on some of the appellant’s statements as admissions, the Crown argued that the appellant was caught in several significant lies. On the Crown’s theory, these lies demonstrated that Ms. Pauls’ death was the product of a plan formulated before the day of her death. I will highlight some of the more significant lies that the Crown alleges the appellant told to the police and others.
[39] In his statements, the appellant indicated that he had scrambled down the very steep incline through the rocks, logs and underbrush to his wife’s body, sliding on his backside and legs as he made his way down the treacherous terrain. None of the first responders who spoke with the appellant noticed any injuries, dishevelled clothing, or dirt on the appellant’s pants or backside. To the contrary, his clothing appeared very clean. The Crown maintained that the appellant’s pristine condition was inconsistent with someone who had scrambled down the steep incline in a panic, but was consistent with someone who, having reconnoitred the area the day before, was aware of the narrow path that led down from the rocky precipice to the area where Ms. Pauls’ body was ultimately found, and had carefully gone down that path. It was the Crown’s theory that the appellant had chosen this site because that path offered a way down to the body, allowing the appellant to ensure that Ms. Pauls was dead before he went for help.
[40] The Crown also challenged the appellant’s assertion that when he was beside Ms. Pauls’ body, he saw the lights on what turned out to be Mr. Wiens’ house and ran towards them. The Crown led evidence that the lights could not be seen from that location. They could, however, be seen by someone standing on the top of the outcropping looking for a nearby home. It was the Crown’s position that the appellant had done just that on his prior visit to the area.
[41] The appellant explained that he may have seen the lights while picnicking on top of the rock and subsequently went for help knowing in which direction to run. There was also evidence that lights from homes near the Wiens’ home could be seen from the place where the body was found.
[42] From the Crown's perspective, the most significant lie allegedly told by the appellant arose out of his repeated assertion that Ms. Pauls spoke to him when he reached her body. The appellant told many people, including first responders, friends and, subsequently, police investigators that he spoke with his wife when he arrived at her side. He gave testimony to the same effect. According to his statements and testimony, his wife pleaded with him to go for help and he immediately did so.
[43] One of the first responders to speak with the appellant at the scene testified that the appellant, in describing the fall and his attempt to help his wife, indicated that when he arrived by her side, “she was screaming at him, go get help, go get help”. That same responder further testified that the appellant told her that he proceeded down the hill, through the difficult terrain to the Wiens’ residence where he called for help. The appellant then indicated that he returned to his wife’s side. According to this responder, the appellant told her that as he made his way back toward his wife’s body after getting help, “he could still hear her screaming”. The appellant also told one of the paramedics on the scene that his wife was yelling at him to go for help when he reached her at the bottom of the cliff.
[44] The appellant described these same events on several other occasions to various people. In some of those versions he described his wife as speaking only when he first arrived at her side and speaking in a low, almost inaudible voice. The appellant gave that version in his testimony.
[45] The Crown led expert medical evidence, which I need not detail, to the effect that Ms. Pauls’ spinal cord was in all likelihood completely severed in the fall and that, by the time the appellant could get down the hill to her, Ms. Pauls would not have been capable of saying anything. A defence medical expert testified that the spinal cord may not have been entirely severed by the fall and that severance may have been completed in the efforts to either move or resuscitate Ms. Pauls. The defence expert testified that if Ms. Pauls’ spine was not entirely severed, she may have been capable of speaking for a brief period of time after the fall. On cross-examination, however, the defence expert agreed that the minimal amount of blood at various fracture sites was inconsistent with any sustained cardiac activity after the fall. While it cannot be said that the defence expert conceded the correctness of the Crown expert’s opinion, his cross-examination moved him close to an acknowledgement that it was likely that the spinal cord was entirely severed by Ms. Pauls’ fall.
[46] The expert medical testimony was potentially important. If Ms. Pauls could not have spoken to the appellant at all, much less both when he arrived at her side and several minutes later when he returned after going for help, the jury could easily conclude that the appellant had fabricated these details of his narrative. The Crown relied heavily on the expert medical evidence in support of its argument that the appellant was clearly lying about speaking to his wife as part of his effort to depict himself as a desperate husband at the scene of a terrible accident doing his best to help his stricken spouse.
(c) The Events After Ms. Pauls’ Death
[47] The appellant gave a statement to the police on November 23, 2003, after he was told that Ms. Pauls had died. The statement was exculpatory. The appellant appeared to be very upset both at the scene and later when he spoke to the police.
[48] The next day, November 24, 2003, the appellant appeared at Ms. Veldmeyer’s home at 6:45 a.m. He briefly described what had happened to Ms. Pauls. He told Ms. Veldmeyer not to tell the police that he had been at her home should they call. He told her that he might not be able to speak to her for a couple of weeks. On that same day, the appellant spoke to several persons who were mutual friends of himself and Ms. Pauls. According to them, the appellant seemed very upset.
[49] Also on November 24, 2003, the police learned from a relative of Ms. Pauls that the appellant may have been having an affair. They went to the appellant’s home to speak with him. A police officer asked the appellant if he had had an affair in the past or was currently having an affair. The appellant lied and answered no to both inquiries. When pressed, he admitted that he had seen Ms. Veldmeyer some two years earlier, but said that it was not an affair as he had only seen her “a few times”. Later that same day, the appellant telephoned Ms. Veldmeyer on a borrowed cell phone. He asked her to let him know if the police contacted her. The police spoke to Ms. Veldmeyer later that day and arranged for her to attend at the police station on December 10, 2003. Ms. Veldmeyer advised the appellant of the appointment. The appellant asked to meet with her on the morning of December 10, 2003, before her interview with the police. She agreed.
[50] On December 5, 2003, the appellant voluntarily attended with the police at the homicide scene and walked through the events as he described them. The walkthrough was videotaped. The officers described the appellant as co-operative. He answered all of the questions put to him.
[51] As arranged, the appellant met Ms. Veldmeyer on the morning of December 10, 2003. By this time, the appellant was very concerned that he was under police surveillance. He took evasive measures. They met at an inn in Grimsby. Ms. Veldmeyer left her car in the parking lot and got into the appellant’s vehicle. They drove to St. Catharines and pulled over to the side of a road to talk. The appellant did not want the police to know about the nature of his relationship with her. He told Ms. Veldmeyer that she should tell the police that she and the appellant were only friends, and that she should minimize the amount of time that she had known him. The appellant instructed her not to tell the police about their baby. Ms. Veldmeyer could not understand why the appellant wanted her to lie to the police. He told her that it was because she had nothing to do with Ms. Pauls’ death. The appellant testified that he did not want to subject Ms. Veldmeyer to what he knew to be unwarranted suspicion.
[52] Ms. Veldmeyer met with the police and told them most of the lies that the appellant had told her to tell. She did, however, tell the police that the appellant was the father of her child. The appellant called her after the interview and asked what she had said. Ms. Veldmeyer told him she could not recall word for word.
[53] The appellant and Ms. Veldmeyer resumed their relationship in December 2003. By January 2004, they were seeing each other regularly and the appellant was anxious to have Ms. Veldmeyer and the baby spend more time in his home at 17 Ivan Avenue. He asked Ms. Veldmeyer to marry him and move into the home.
[54] Ms. Veldmeyer testified that she felt pressured by the ongoing police investigation. It also seemed to her that the appellant was attempting to control her. On February 17, 2004, she went to the police and told them she had lied in her earlier statements. She did not tell the appellant that she had gone to the police and told them the truth. By the middle of March 2004, she had decided to end their relationship. Ms. Veldmeyer ended their relationship in a telephone conversation on March 11, 2004. The appellant was very upset, threatening suicide and also indicating that he would attempt to get custody of their daughter. In the following days, the appellant repeatedly tried to get Ms. Veldmeyer to reconsider her decision. He was also following her and making phone calls to her place of business.
III. THE ADMISSIBILITY OF MS. PAULS’ STATEMENTS TO HER FRIENDS
[55] At trial, the Crown sought to lead evidence to show the deterioration of the relationship between the appellant and Ms. Pauls in the weeks and months prior to her death. The Crown relied on this evidence to demonstrate the appellant’s increasing animosity towards Ms. Pauls, his determination to extract himself from their relationship without losing his house, and Ms. Pauls’ fear of the appellant. These facts were ultimately relevant to whether the appellant pushed Ms. Pauls to her death and, if so, his state of mind at that time and whether that act was planned and deliberate.
[56] The Crown relied on evidence of statements made by the appellant, observations of the interactions between the appellant and Ms. Pauls, and statements made by Ms. Pauls to her friends Mr. and Mrs. Lutsch, Faye Vormittag, and Mary Armstrong. In those statements, Ms. Pauls reported verbal and physical abuse by the appellant and threats that he made against her. Ms. Pauls also said things that the Crown contended could justify the inference that Ms. Pauls was very afraid of the appellant in the weeks and months before her death. The Crown submitted that the statements made by Ms. Pauls were admissible either under recognized hearsay exceptions (e.g. evidence of Ms. Pauls’ state of mind) or under the principled approach to the admissibility of hearsay evidence set out in the then leading authority of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.
[57] At trial, the defence did not oppose the admissibility of much of the evidence relied on by the Crown to show the appellant’s animus towards Ms. Pauls, her fear of him, and the deterioration of their relationship. Counsel did, however, object to the admissibility of some of the statements made by Ms. Pauls to her friends. Counsel argued that some statements should be excluded entirely and others should be edited before they were heard by the jury. The trial judge held a pre-trial voir dire. She ultimately admitted some of Ms. Pauls’ statements and excluded others. The trial judge gave extensive reasons for her ruling.
[58] As I understand counsel’s position on appeal, he takes issue with the admission of four of the statements made by Ms. Pauls. In doing so, counsel relies primarily on the change in the law effected in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, decided after the trial judge’s ruling. Contrary to Starr, the authority that bound the trial judge, Khelawon permits a trial judge considering reliability for the purpose of determining the admissibility of hearsay evidence to look beyond the circumstances surrounding the making of the statements to extrinsic evidence that may support or undermine the reliability of the hearsay statements: Khelawon at paras. 93-100. Counsel submits that extrinsic evidence becomes particularly significant where, as in this case, the Crown must rely on the inherent reliability of the hearsay statements rather than the existence of adequate substitutes for cross-examination of the declarant: Khelawon at paras. 106-108.
[59] The appellant is entitled to rely on Khelawon to challenge the correctness of the trial judge’s ruling even though the law as set down in Khelawon is inconsistent in one material respect with the law the trial judge was obligated to apply at trial: see, for example, R. v. T.R. (2007), 2007 ONCA 374, 85 O.R. (3d) 481 (C.A.); R. v. S.(S.) (2008), 2008 ONCA 140, 232 C.C.C. (3d) 158 (Ont. C.A.) at para. 24; R. v. Sharif (2009), 2009 BCCA 390, 275 B.C.A.C. 171 (B.C.C.A.), leave to appeal to S.C.C. refused, 33460 (April 29, 2010). Superimposing the law as set down in Khelawon on the trial record does, however, create some difficulties on appeal. The appellant must demonstrate reversible error on the trial record and on the evidence heard on the voir dire conducted to determine the admissibility of Ms. Pauls’ statements. This court cannot speculate as to what the evidentiary record might have been had Khelawon been in play at the time of the voir dire. Nor can this court sift through evidence heard on the trial proper, after the statements had been admitted, and extract from the trial evidence bits and pieces of evidence that under the Khelawon analysis might support an argument for or against the reliability of Ms. Pauls’ statements. Although Khelawon extends the scope of the reliability inquiry when hearsay statements are offered in evidence, it still maintains the distinction between the reliability of those statements for the purposes of admissibility and the ultimate reliability of the statements for the purpose of determining whether the Crown has proved its case: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at paras. 56-57. The correctness of the trial judge’s ruling cannot turn on this court’s assessment of the reliability of Ms. Pauls’ statements based on a review of the entirety of the trial record.
[60] On appeal, both the appellant and the Crown must take the voir dire record as it exists. The appellant bears the onus of showing that, on that record and on the law as it stands post-Khelawon, the trial judge erred in admitting the hearsay statements made by Ms. Pauls.[^2]
[61] Although the post-Khelawon reliability assessment is somewhat different than that engaged in by the trial judge when determining the admissibility of Ms. Pauls’ statements, I would still defer to her findings of fact and her weighing of the various factors that she did consider: see R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517 at para. 81, per Charron J., and at para. 132, per Rothstein J., dissenting on another point; R. v. Duong (2007), 2007 ONCA 68, 84 O.R. (3d) 515 (C.A.) at para. 54; R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.) at para. 101; S.(S.) at paras. 29-30. The consideration of extrinsic evidence where appropriate, as mandated by Khelawon, does not justify a de novo assessment of admissibility on appeal, but does mandate a consideration of that extrinsic evidence as an additional factor to be examined in the context of the assessment made by the trial judge of the other factors relevant to the reliability of the statements.
[62] The trial judge made several significant findings of fact. She found that Ms. Pauls was very close to the persons with whom she shared these very personal and embarrassing details about her relationship with the appellant. The trial judge also found that the statements were spontaneous and made at a time close to the events described in the statements. The trial judge further found that Ms. Pauls’ emotional state when she made the statements was consistent with their reliability and that the detail provided in some of the statements was significant. All of these findings were available on the evidence and I accept them for the purpose of determining whether, in light of Khelawon, the trial judge erred in law by admitting the statements.
[63] The first of the four statements challenged by the appellant was allegedly made by Ms. Pauls to her friend, Faye Vormittag, in the summer of 2003. Ms. Vormittag testified that Ms. Pauls telephoned her. She was very upset and told Ms. Vormittag that the appellant had thrown her into the refrigerator so forcefully that she fell to the ground. When Ms. Vormittag urged Ms. Pauls to leave the appellant, Ms. Pauls indicated that she was afraid of the appellant. Ms. Pauls said to Ms. Vormittag, “Faye, if anything happens to me you’ve got to promise me you’ll go to the police.” Ms. Vormittag promised she would do so.
[64] There is no merit to the argument that this evidence should have been excluded. In her ruling on the admissibility of this particular statement, reported at [2006] O.J. No. 4757 (S.C.), the trial judge said at para. 95:
The defence acknowledges necessity and threshold reliability, and acknowledges that given the time frame, and the direct relationship to the issues of the state of mind of Ms. Pauls and the escalating tension between them at this time, the evidence is properly before the jury.
[65] As explained in R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 59-64, a case involving a very similar ante-mortem statement, the evidence of Ms. Pauls’ statement was direct evidence of Ms. Pauls’ fear of the appellant, indirect evidence of his animosity and motive and ultimately, along with other evidence, indirect evidence that the appellant pushed Ms. Pauls to her death. Counsel on appeal has not pointed to anything in the trial record that would justify ignoring the express concession as to reliability made at trial. Given that express concession, it cannot be argued that the trial judge erred in holding that the statement was sufficiently reliable to warrant its admission.
[66] The second statement challenged on appeal was made by Ms. Pauls to her friend, Mary Armstrong. Ms. Armstrong indicated that she spoke to Ms. Pauls in August 2003. They discussed the relationship between Ms. Pauls and the appellant. In the course of the conversation, Ms. Pauls said, "[I]f anything ever happens, like an accident, call the police. Promise me."
[67] The statement made to Ms. Armstrong is very similar to that made to Ms. Vormittag. Both statements were made at around the same time. The statement to Ms. Armstrong is relevant to the same issues as the similar statement made to Ms. Vormittag. Not surprisingly, given that the defence conceded the admissibility of virtually the same statement made to Ms. Vormittag, the defence also conceded the admissibility of the statement made to Ms. Armstrong. I therefore see no merit in an argument that the statement to Ms. Armstrong was not sufficiently reliable to justify its admission. It was properly received.
[68] What I characterize as the third statement challenged by the appellant is in reality two very similar statements made on different occasions to Mr. and Mrs. Lutsch, both very close friends of Ms. Pauls and the appellant. Ms. Lutsch testified that in late October or November 2003, Ms. Pauls told her that she slept with a machete by her bed. This statement was made during a conversation in which a very upset Ms. Pauls described to Ms. Lutsch a serious assault on her by the appellant. When Ms. Lutsch urged Ms. Pauls to leave the appellant, Ms. Pauls responded with the comment concerning the machete.[^3] The Crown argued that the evidence of this statement demonstrated Ms. Pauls’ fear of the appellant at a time very proximate to her death.
[69] Ms. Lutsch agreed in cross-examination on the voir dire that she could not be certain whether Ms. Pauls was being literal or melodramatic when she said that she slept with a machete beside her bed. Ms. Pauls could be quite melodramatic when speaking about her relationship with the appellant. Ms. Pauls owned an ornamental machete that her mother had given her. There was no other evidence that Ms. Pauls kept that machete in her bedroom.
[70] Mr. Lutsch also testified that Ms. Pauls told him that she slept with a machete by her bed. His evidence as to when this statement was made was unclear. According to him, it may have been as early as 2001, over two years before the homicide.
[71] The trial judge concluded that the statements concerning the machete were sufficiently reliable to justify their admission as evidence of Ms. Pauls’ fear of the appellant.[^4] I do not think she erred in so holding. Certainly, the statement to Ms. Lutsch was made in circumstances that provided ample grounds for a finding that the statement was a reliable indication of Ms. Pauls’ state of mind. I see nothing by way of extrinsic evidence referred to on the voir dire that would warrant a different assessment of the reliability of the statements made to Ms. Lutsch.
[72] Ms. Pauls’ statement to Mr. Lutsch had little probative value with respect to her state of mind at the time of her death. That statement could have been excluded. However, given the properly admitted evidence, the admission of the statement could not possibly have prejudiced the appellant’s case.
[73] The fourth statement challenged by the appellant arose from the same exchange with Ms. Lutsch in which Ms. Pauls referred to sleeping with a machete by her bed. Ms. Lutsch testified that Ms. Pauls sobbed hysterically during that conversation, which occurred in late October or November of 2003. She told Ms. Lutsch that she and the appellant had had “a huge fight”. The appellant had pushed her into a refrigerator. He had also put a knife to her throat.[^5] Ms. Lutsch urged Ms. Pauls to leave the home; however, Ms. Pauls replied that she was afraid that the appellant would “find me and he’ll kill me”.
[74] Ms. Lutsch testified on the voir dire that Ms. Pauls could be “awfully melodramatic”. Ms. Lutsch testified that she was never sure whether Ms. Pauls was exaggerating when she described the appellant’s conduct. Ms. Lutsch indicated that the day after Ms. Pauls had told her about the confrontation with the appellant, Ms. Lutsch had called Ms. Pauls to see if she was alright. Ms. Pauls did not refer to any difficulties with the appellant, but indicated that she and appellant had gone shopping for the appellant’s mother.
[75] Despite Ms. Lutsch’s uncertainty about the accuracy of Ms. Pauls’ comments, she was sufficiently concerned that she spoke to the appellant about the allegation concerning the knife. Ms. Lutsch testified on the voir dire:
[S]o in order to verify that that was actually the truth I said to Mike [the appellant], ‘Mike, did you really hold a knife to her throat?’ and he said, ‘Well I was peeling a potato’ – or slicing some sausage or something like that. He didn’t deny he had a knife. He didn’t deny he held it to her throat, but he kind of explained why he had a knife in his hand at that point.[^6]
[76] The appellant submits that had the trial judge considered extrinsic evidence beyond the circumstances in which the statement was made to Ms. Lutsch, she would have concluded that the statement was not sufficiently reliable to justify its admission. Counsel submits that had cross-examination been possible, Ms. Pauls may have conceded that she never expected her words to be repeated in a courtroom, and that she had invented a dramatic story about a knife because she was upset with the appellant.
[77] The most telling piece of extrinsic evidence adduced on the voir dire and properly considered under the Khelawon approach is the appellant’s reaction when Ms. Lutsch confronted him with Ms. Pauls' allegation. The appellant’s reaction is capable of being interpreted as an admission that something happened in the course of an argument between him and Ms. Pauls that involved a knife and that the appellant knew Ms. Pauls had interpreted as a threat. If Ms. Pauls’ statement to Ms. Lutsch was untrue and had no basis in reality, the appellant would not have reacted to the allegation by referring to a specific discussion he had had with Ms. Pauls during which he held a knife in his hand. The appellant’s response suggests that he was very aware of the event that Ms. Pauls recounted to Ms. Lutsch. The appellant’s reaction tends to support the trial judge’s conclusion that Ms. Pauls’ statement concerning the threat with the knife was sufficiently trustworthy to warrant its admission. I see no error in the trial judge’s ruling.
[78] Counsel submits that apart entirely from the error arising out of the change in the law effected by Khelawon, the trial judge erred in using the absence of evidence that Ms. Pauls had a motive to lie when making her statements as evidence of the reliability of those statements. This submission arises out of the trial judge’s comment at para. 54 of her reasons that "[t]here has in this case not been shown any motive to lie on the part of Ms. Pauls".
[79] Counsel for the appellant submits that in this passage, the trial judge erred in equating the absence of evidence of motive with the existence of evidence from which it could be reasonably inferred that Ms. Pauls did not have a motive. The distinction relied on by the appellant was drawn in R. v. Czibulka (2004), 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.) at para. 44, and referred to in Blackman. Counsel further contends that in any event, there was ample evidence that Ms. Pauls had a motive to lie to her friends to put the appellant in a bad light. Counsel submits that the deteriorating nature of their relationship and their pending break-up provided that motive.
[80] The trial judge’s words at para. 54 of her reasons must be read in conjunction with the immediately preceding paragraphs and analysis. At paras. 47-53, the trial judge considered the circumstances in which the statements were made and identified several factors that rendered the statements reliable. The trial judge’s observation at para. 54 was nothing more than a comment on the state of the evidence. There was nothing in the evidence to suggest a motive to lie. Such evidence, had it existed, could have countered the indicia of reliability enumerated by the trial judge in the immediately preceding paragraphs. The absence of evidence of a motive to lie, while obviously of significantly less probative value than evidence that the declarant had no motive to lie, is still part of the overall evidentiary picture to be assessed when determining the reliability of the hearsay statement. In this case, the absence of any evidence of a motive to lie left the probative worth of the indicia of reliability referred to by the trial judge unimpaired.
[81] I would also reject the submission that there was evidence on the voir dire that Ms. Pauls had a motive to lie to her friends about the appellant’s abuse. Counsel’s argument comes down to the contention that because the relationship was failing, Ms. Pauls must have had a motive to lie about the appellant’s conduct. This argument is based on a generalized assumption about failing relationships rather than any specific evidence heard on this voir dire. A similar argument in a factually similar case was rejected by this court in R. v. Pasqualino (2008), 2008 ONCA 554, 233 C.C.C. (3d) 319 (Ont. C.A.) at paras. 41-43.
[82] On the voir dire record, it was open to counsel to argue that the deteriorating nature of the relationship between Ms. Pauls and the appellant could give rise to suspicions about the truthfulness of the allegations made against the appellant by Ms. Pauls in her statements. It was, however, for the trial judge to decide whether those suspicions were justified in the circumstances revealed by the evidence. She concluded, having regard to the entirety of the circumstances in which the statements were made, that the deteriorating nature of their relationship did not constitute a motive on Ms. Pauls’ part to lie to her friends. That assessment, which is essentially a factual one, cannot be characterized as unreasonable. Nor is it tainted by any material misapprehension of the evidence. I think this court must defer to that assessment of the evidence by the trial judge.
IV. THE ALLEGED MISDIRECTION AS TO THE EVIDENTIARY USES OF STATEMENTS MADE BY THE APPELLANT
[83] As summarized above, the appellant made various statements to first responders, friends, and police investigators concerning the circumstances of Ms. Pauls’ death. The statements were exculpatory and the defence relied on them to support its position that Ms. Pauls’ death was an accident. The Crown also relied on portions of those statements, contending that they contained lies that were capable of supporting the Crown’s position that the appellant had fabricated a story in an effort to hide the fact that he had pushed his wife from the cliff. Counsel for the appellant submits that the trial judge’s instructions were inadequate both with respect to the potential exculpatory value of the statements and the potential inculpatory use of parts of the statements as circumstantial evidence of guilt. I will address the alleged error relating to the exculpatory use of the statements first.
[84] Counsel submits that the trial judge failed to clearly instruct the jury that the exculpatory portions of the appellant’s statements were potentially important evidence for the defence. Counsel contends that while the trial judge referred at length to the appellant’s testimony, she did not refer to the exculpatory portions of his statements made shortly after Ms. Pauls’ death. Counsel argues that the exculpatory statements made at the time of Ms. Pauls’ death were potentially more credible than testimony given many months after the fact. He submits that the trial judge’s failure to specifically allude to the statements and their potential exculpatory value constitutes reversible error.
[85] An accused’s out-of-court statements constitute evidence both for and against that accused: S. Casey Hill et al., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2003) at para. 7:160.10. I cannot accept the contention that the trial judge did not make this clear to the jury. First, in her instruction as to the use to be made of out-of-court statements, she told the jury:
Things found to be said by an accused person are evidence for your consideration, whether or not he agrees with them in his evidence at trial.
You may give anything you find Mr. Polimac said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything you find Mr. Polimac said, however, is only part of the evidence in this case. You should consider it along with and in the same way as all the other evidence. Consider the evidence as a whole... . [Emphasis added.]
[86] The jury could only take from this instruction that the appellant’s denials and exculpatory explanations given in his statements constituted “evidence” for their consideration.
[87] Later, the trial judge told the jury that it must acquit if it believed “Mr. Polimac and the evidence that supports the defence position” or if it had a reasonable doubt based on the evidence of Mr. Polimac “or the evidence that supports his position”. It could not have been lost on the jury that the appellant’s exculpatory statements and explanations constituted evidence that, if believed, “supports the defence position”.
[88] The trial judge reviewed the substance of the many statements made by the appellant at the scene and in subsequent days and weeks. At the outset of her review, she reminded the jury that it was the defence position that “all of Mr. Polimac’s actions at the scene are entirely consistent with a sudden accidental fall”. The appellant’s description of his actions at the scene came not only from his testimony, but from his statements. Finally, in reviewing the position of the defence at the end of her instructions, the trial judge once again made it clear that the defence relied on the consistency of the appellant’s description of the relevant events from the day of the event through to trial as indicative of the truthfulness of that version of events.
[89] The trial judge gave counsel a full copy of her proposed charge to the jury before that charge was delivered. Counsel vetted those instructions and in extensive submissions recommended various changes. Counsel took no objection to the manner in which the trial judge proposed to deal with the exculpatory value of the out-of-court statements. I have no doubt that, had the instructions been capable of being read as appellate counsel would read them, trial counsel would have raised an objection. Counsel’s acquiescence to the instructions, particularly after having been given a full opportunity to raise any perceived shortcomings in the trial judge’s instructions, must be given considerable weight when considering an objection raised for the first time on appeal that, in effect, argues that the jury instructions significantly undermined the defence position vigorously advanced at trial: see R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423 at para. 3; R. v. Ellard (2009), 2009 SCC 27, 245 C.C.C. (3d) 183 (S.C.C.) at para. 47.
[90] I turn next to counsel’s submission that the trial judge failed to adequately instruct the jury as to the preconditions to the jury’s use of any part of the appellant’s out-of-court statements as evidence of his guilt. Counsel submits that the trial judge failed to draw the important distinction between the jury’s rejection of those statements as false and the jury’s use of those statements as evidence of fabrication from which to infer guilt. Counsel contends that the trial judge failed to make it clear to the jury that before the statements had any value to the Crown’s case, the jury must find that they were deliberately false and must further find from circumstances other than those demonstrating the falsity of the statements that the statements were fabricated to avoid liability. The distinction that counsel contends was not made clear to the jury can be difficult to appreciate and has generated a great deal of appellate ink: see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.); R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.); R. v. Samuels (2005), 2005 CanLII 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.); R. v. Tessier (1997), 1997 CanLII 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.); R. v. Tanasichuk (2007), 2007 NBCA 76, 227 C.C.C. (3d) 446 (N.B.C.A.).
[91] O’Connor is the leading authority in this province. After restating and explaining, at paras. 17-20, the rationale for drawing a distinction between disbelief of an accused’s testimony or out-of-court statements, which has no inherent evidentiary value, and a finding that the testimony or statements were fabricated to avoid culpability, which is circumstantial evidence of guilt, the court examined the circumstances in which the inference of fabrication to avoid culpability could be drawn by the trier of fact. At paras. 22-24, O’Connor A.C.J.O. drew an important and helpful distinction, for the purposes of drawing the inference of fabrication, between the testimony of an accused and out-of-court statements of an accused. With respect to out-of-court statements by an accused, O’Connor A.C.J.O. said at para. 24:
I am satisfied that it is open to a trier of fact to consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement. The difference in approach to disbelieved testimony and disbelieved out-of-court statements turns both on the policy reasons underlying the requirement for independent evidence of fabrication as well as on the potential evidentiary value of the circumstances in which the two types of statements are made. [Emphasis added.]
[92] It was not argued at trial or on appeal that the statements made by the appellant to the first responders at the scene, the police on the day Ms. Pauls died, or to his friends shortly afterwards, were not, if proven to be false, potentially capable of supporting the inference of deliberate fabrication to avoid detection.[^7] If significant parts of the statements were found to be deliberately false, the proximity of many of the statements to Ms. Pauls’ death, the detailed and precise narrative set out in the statements, the persons to whom the statements were made, and the fact that the appellant was not under any suspicion when the statements were made, taken together, provide a basis to infer deliberate fabrication to avoid liability: see Tanasichuk at para. 65; Samuels at paras. 38-39; O’Connor.
[93] Counsel for the appellant, relying on O’Connor at paras. 34-46, submits that the trial judge’s instructions were inadequate. He submits that the trial judge failed to instruct the jury that a finding that parts of the statements were inaccurate or even deliberately false, standing alone, did not constitute any evidence of the appellant’s guilt. Counsel further contends that the trial judge failed to tell the jury that before they used any deliberate falsehoods as evidence of guilt, they had to infer that the appellant lied in order to mislead the police and avoid culpability. Finally, counsel argues that the trial judge failed to outline and properly limit the body of evidence that the jury could rely on when determining whether the Crown had demonstrated that the statements were fabricated.
[94] The trial judge did not follow the O’Connor model in her instructions. She was not asked to do so by counsel for the Crown or the appellant. Instead, the trial judge approached the out-of-court statements and the use the jury might make of them as one of several factual issues to be addressed by the jury in arriving at its verdict. The trial judge thoroughly summarized the evidence relating to the statements and explained to the jury, in a balanced manner, the competing inferences that the defence and Crown urged upon the jury. Certainly, the alleged lies in the appellant’s out-of-court statements were not given any prominence in the trial judge’s instructions.
[95] The trial judge did not act unilaterally in putting the issue to the jury as she did. As I have already indicated, the trial judge prepared a draft copy of her entire instructions, gave it to counsel and invited comments. In the course of a lengthy colloquy, trial counsel for the appellant (not counsel on appeal) took no exception to the manner in which the trial judge proposed to deal with the appellant’s out-of-court statements.
[96] It is becoming much more common for trial judges to provide counsel with copies of their proposed instructions and to give counsel an opportunity to comment on those instructions before they are delivered. In that context, counsel is in a much different position than counsel who is called upon to object after hearing the instructions for the first time as they are delivered to the jury. It is hardly accurate to describe the position of trial counsel who makes no objection after being given a full opportunity to vet and comment on the jury instructions before they are delivered as a “failure to object”. Counsel’s duty to assist the court in fulfilling its obligation to properly instruct the jury, referred to by Fish J. in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 49, takes on added significance where counsel has been given a full copy of the proposed instructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge. In those circumstances, counsel’s position at trial becomes very important when evaluating complaints, raised for the first time on appeal, that matters crucial to the defence were not properly addressed by the trial judge in her instructions.
[97] Counsel’s position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal error remains a legal error even if counsel does not object or even supports the erroneous instruction: see R. v. Wright (2009), 2009 ONCA 623, 98 O.R. (3d) 665 (C.A.) at para. 27; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 at para. 43. Jury instructions, particularly about the manner in which juries may consider parts of the evidence, are not, however, designed to formulate legal principles for the jury or offer abstract verbalizations of those principles. Jury instructions about the evidence must ensure the following: first, that the jury understands how the evidence can and cannot be used in the context of the particular case; and second, that the jury understands the positions taken by the defence and Crown with respect to that evidence. Counsel’s considered position after examining the proposed instruction sheds valuable light on whether that proposed instruction met those two goals. This instruction did.
[98] It is necessary to summarize the structure of the trial judge’s instructions to make the point that her treatment of the out-of-court statements was appropriate in the circumstances. The trial judge began her instructions by explaining several legal principles that applied to the evidence the jury had heard. The trial judge explained the evidentiary use that could be made of the appellant’s out-of-court statements. She said nothing about the potential use of any parts of the statements as evidence from which the jury could infer fabrication to avoid culpability. In light of the remainder of the charge, the absence of that instruction could do no damage to the appellant’s case.
[99] The trial judge also instructed the jury on the circumstantial use it could make of certain after-the-fact conduct by the appellant. The trial judge directed the jury to parts of the evidence that it could consider to be after-the-fact conduct capable of supporting an inference of guilt. The trial judge did not include in this catalogue of evidence any of the appellant’s out-of-court statements concerning the events surrounding Ms. Pauls’ death. She could have. The absence of any reference to the appellant’s out-of-court statements concerning the events surrounding Ms. Pauls’ death as potentially constituting after-the-fact conduct enured to the appellant’s benefit.
[100] In the second part of her instructions, the trial judge outlined the essential elements of the offence and explained to the jury without elaboration the areas of the evidence that were relevant to each element of the offence. She told the jury that the appellant’s out-of-court statements could provide evidence of his state of mind as it related both to his intention, and planning and deliberation. Once again, she said nothing about the potential of finding that certain parts of those statements were fabricated, or the possible use that could be made of any such fabrication.
[101] In the next part of her instructions, the trial judge grouped and summarized the evidence under several categories. The appellant’s out-of-court statements were one such category. The trial judge referred to the Crown’s contention that parts of the out-of-the court statements were false and therefore reflective of the appellant’s plan to kill Ms. Pauls and make it appear to have been an accident. The trial judge set out some of the deliberate falsehoods alleged by the Crown. She explained the respective positions of the defence and Crown. For example, when dealing with the issue of whether Ms. Pauls spoke to the appellant before she died at the bottom of the cliff, the trial judge said:
The Crown, of course, argues that she suffered a rapid death and could not speak at all. The Crown suggests you will find that Mr. Polimac’s account that she could speak is manufactured to make it appear that he wanted to get help, whereas his actual purpose was to confirm her death before he went to notify anyone, so there was no risk that she could explain what happened. The defence argues that the evidence is quite inconclusive on this point of whether she could speak, so you should not find that Mr. Polimac was wrong about her talking, but should accept his evidence that he did rush off to get her help in hopes that she would survive. The defence also argued that it may have been that in his traumatized state he believed that he heard her ask for help when in fact she said nothing.
[102] The trial judge followed this summary of the respective arguments with a detailed and accurate review of the relevant medical evidence.
[103] The trial judge concluded her instructions with a full and balanced summary of the respective positions of the Crown and defence. In the course of that summary, she outlined the Crown and the defence position with respect to the alleged falsehoods in the appellant’s out-of-court statements. In summarizing the Crown’s case, she said:
Mr. Polimac’s account of what he does after Ms. Pauls goes over the ledge is not a genuine account but rather a false story he prepared in advance to make it appear he offered assistance to Ms. Pauls. Mr. Polimac says he scrambles down the gully, that Ms. Pauls speaks to him, that he moves her five to 10 feet. These claims are refuted by the physical evidence: his clean clothes belie any account of sliding down the gully on his back, bum and hands and then trying to move Ms. Pauls backwards down the escarpment on his knees. The expert evidence concerning brain and brain stem injuries suffered by Ms. Pauls forecloses the possibility that she speaks to him.
[104] In summarizing the defence position, the trial judge outlined the following argument:
The Crown’s argument that Mr. Polimac “enticed” her is speculation. The Crown makes much of the inconsistencies in Mr. Polimac’s recollections of the event. However, the following can be said: his initial memory could be expected to be impaired by the trauma of the event; and the statements recalled by various witnesses at the scene are inconsistent. The defence argued that most likely from the confusion of the event, and with the lack of proper note taking, the various on scene people remembered differently. The three statements to the police are cumulative. The recital of events given on November 23rd is brief. On December 5th, Mr. Polimac can be expected to be reluctant to relive the events in detail in the place where it occurred shortly before. On March 21st, he gives a more complete account which is consistent with the evidence given at trial, except that he continues to try to hide his relationship with Ms. Veldmeyer.
The defence argues that the evidence about how clean Mr. Polimac’s clothing was is irrational. Clearly, he walked repeatedly in the rough and muddy area. He must have soiled his clothing. Either the observations of the rescue witnesses were inaccurate, or else Mr. Polimac flew over the ground, as the defence suggested to one of the witnesses.
[105] On the evidence adduced in this case, the real issue insofar as the out-of-court statements was concerned was whether the appellant had deliberately lied to the first responders, police officers and others concerning the circumstances surrounding Ms. Pauls’ death. If the jury was satisfied that he did lie on significant matters - for example, whether Ms. Pauls spoke to him - the circumstances in which those lies were told made an inference of fabrication to avoid culpability very strong. The trial judge, in keeping with the arguments advanced at trial, focussed on whether there were inaccuracies in the statements and, if so, whether any of those inaccuracies should be found by the jury to be deliberate falsehoods. The trial judge made the respective positions of the defence and Crown on these issues clear to the jury. In doing so, she fairly and fully put the case advanced at trial to the jury.
[106] The legal analysis advanced by counsel on appeal is faithful to the case law and, in particular, O’Connor. The trial judge could have given an instruction following the O’Connor model. The question on appeal, however, is not whether an O’Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant’s right to a fair trial. I do not think it did. The issue arising out of the alleged falsehoods told by the appellant was left to the jury as counsel wanted it left to the jury. An instruction replicating the O’Connor analysis would not, in my view, have improved the position of the defence. To the contrary, an instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant’s statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case.
V. THE EVIDENTIARY VALUE OF CERTAIN AFTER-THE-FACT CONDUCT
[107] The appellant submits that the trial judge erred in leaving the evidence of the appellant’s expressed desire to have Ms. Pauls’ body cremated and his indication that there should be no death notice placed in the paper as evidence that could support the Crown’s contention that the appellant murdered Ms. Pauls. The appellant submits that this evidence was not reasonably capable of supporting any inference that could assist the Crown and takes on a sinister connotation only if one begins from the premise that the appellant killed his wife.
[108] In advancing this submission, counsel notes that the appellant knew that an autopsy would be conducted before any cremation occurred and that he made no objection to the autopsy. Counsel further highlights the evidence that when Ms. Pauls’ family expressed a preference for a funeral and a burial, the appellant readily agreed. Finally, counsel refers to the evidence that the appellant spoke of Ms. Pauls’ death to many friends and relatives and that, despite his expressed desire that there be no death notice, he placed a death notice in the paper when a friend told him that there were many people who would want to pay their respects if made aware of Ms. Pauls’ death.
[109] Evidence of things done by an accused after an alleged offence (after-the-fact conduct) is a type of circumstantial evidence. Its evidentiary value to the Crown’s case depends on the inferences that can be drawn from the evidence as a matter of human experience and common sense. In considering what inferences can properly be drawn, the evidence must of course be placed in the context of the entire case: R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.) at para. 33; R. v. Allen (2009), 2009 ABCA 341, 249 C.C.C. (3d) 296 (Alta. C.A.) at para. 68. The evidence relied on by counsel for the appellant goes a long way to neutralizing any adverse inference that the jury might, as a matter of common sense and human experience, draw from the appellant’s desire to have Ms. Pauls cremated and his initial reluctance to place any notification of her death in the paper.
[110] The trial judge dealt with this evidence in the context of other evidence involving the appellant’s after-the-fact conduct, particularly his attempt to keep his relationship with Ms. Veldmeyer from the police. The trial judge made it clear to the jury that it was for them to determine what inference, if any, should be drawn from the appellant’s conduct after Ms. Pauls’ death. The trial judge reminded the jury of the arguments put to them by both the Crown and the defence. After summarizing the evidence relating to the possible cremation and the death notice, the trial judge referred to the evidence counsel for the appellant has summarized as neutralizing any potential adverse inference from that evidence. The trial judge then went on to tell the jury, "Since Mr. Polimac did readily agree to the family’s wishes, you perhaps will not put much if any weight on this part of the evidence, but it is for you to decide."
[111] Given the state of the evidence by the end of the case, the trial judge might well have withdrawn the evidence entirely from the jury had she been asked to do so. However, absent any submission by trial counsel that the evidence had no probative value, the trial judge cannot be faulted for the approach she took. She briefly, but accurately summarized the evidence and the respective positions of the parties. She then advanced an opinion that the evidence had little value. I am confident that the jury, using its common sense and aided by a judicial nudge, would not have ascribed any weight to this evidence.
[112] The appellant also submits that the trial judge misdirected the jury as to the inference that could be drawn from certain comments made by the appellant at Ms. Pauls’ graveside on March 14 and 21, 2004. The appellant attended the graveside by himself on those dates. In two soliloquies, he told Ms. Pauls that he loved her and missed her. According to the appellant, he was unaware that his communications at the graveside were being surreptitiously intercepted by the police under a judicial order.
[113] Ms. Veldmeyer had told the appellant that she wanted to terminate their relationship shortly before March 14, 2004. The appellant was upset by that turn of events and the prospect of not seeing his baby daughter. He was also very much aware that he was a suspect in Ms. Pauls’ death and was under police surveillance. On any theory of the case, things were not working out for the appellant when he went to Ms. Pauls’ gravesite.
[114] The trial judge reviewed the evidence of the graveside visits while discussing the surveillance evidence. After briefly summarizing the graveside visit evidence, she said:
The Crown might say that you will find Mr. Polimac was aware or suspicious about surveillance especially since Ms. Veldmeyer had warned him on March 11th, but the defence would say that this supports his innocence because there is nothing to suggest anything other than continuing grief.
[115] The trial judge repeated the defence position with respect to the comments at the graveside when reviewing the position of the defence later in her charge.
[116] Even though the Crown at trial did not argue that the appellant may have been concerned about surveillance at the graveside, I see no error in this instruction. The trial judge accurately reviewed the evidence and correctly observed that the appellant was conscious of police surveillance during that time period. The trial judge did not suggest that any comments made at the graveside had any inculpatory value. She simply reminded the jury in the context of the topic she was discussing – the surveillance evidence – that as of the date the appellant made the comments at the graveside, he was concerned about ongoing police surveillance.
VI. CONCLUSION
[117] I would dismiss the appeal.
RELEASED: “WW” “MAY 12 2010”
“Doherty J.A.”
“I agree Winkler C.J.O. “I agree K. Feldman J.A.”
[^1]: In his factum, counsel alleged various deficiencies in the trial judge’s instructions concerning the statements allegedly made by the deceased. The crux of the complaint is that the trial judge should have done more to caution the jury against the misuse of that evidence both because of its inherent frailties and because of specific dangers associated with the statements admitted by the trial judge. Counsel did not advance these submissions in oral argument but also did not abandon them. In my view, these arguments cannot succeed and I do not propose to address them beyond this note. While the trial judge could have said many of the things the appellant submits she should have said, her failure to do so does not render what she said wrong or make the charge unfair. None of the objections were made at trial.
[^2]: I would not entirely foreclose an appellant from resorting to parts of the trial record to show the unreliability of the hearsay evidence where the trial decision predates Khelawon. However, the appellant would be required to demonstrate that it was in the interests of justice to go beyond the four corners of the voir dire to assess the correctness of the evidentiary ruling.
[^3]: The admissibility of the rest of this statement is also challenged. I have described this as the fourth statement challenged by the appellant: see paras. 73-77.
[^4]: Although not argued, it may be that the statement was admissible as evidence of her fear of the appellant even if not literally true. Even if intended figuratively, the statement could still evince a very real fear of the appellant.
[^5]: It is not entirely clear on the voir dire record whether these two incidents took place during a single confrontation between the appellant and Ms. Pauls, or whether the incidents were reported to Ms. Lutsch in a single conversation. In cross-examination, Ms. Lutsch appears to indicate that the incidents occurred and were reported to her on two different days.
[^6]: At trial, the appellant denied that he put a knife against Ms. Pauls’ throat. He said he was cutting food with a knife when he and Ms. Pauls were “discussing stuff”. The appellant insisted that he was not close to Ms. Pauls while he was holding the knife.
[^7]: There is one reference in the appellant’s factum suggesting that there was no evidence from which a finding of fabrication could be made. I do not think, however, this was the argument put forward either in the factum or in oral argument. If it was, I disagree with it for the reasons set out in this paragraph.