CITATION: R. v. Dhillon, 2010 ONCA 46

DATE: 20100122

DOCKET: C44458

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sukhwinder Singh Dhillon

Appellant

Brian Snell, for the appellant

Deborah Krick, for the respondent

Heard and released orally: January 19, 2010

On appeal from the conviction entered by Justice C. S. Glithero of the Superior Court of Justice, sitting with a jury, on July 31, 2001.

ENDORSEMENT

[1] The appellant was convicted of first degree murder in respect of the death of his wife. By its verdict, it is apparent that the jury was satisfied beyond a reasonable doubt that the appellant killed his wife by the planned and deliberate administration of a fatal dose or doses of strychnine.

[2] The appellant appeals his conviction on two grounds. First, he argues that the trial judge erred by permitting the Crown to lead reply expert evidence regarding fatal doses of strychnine and the purposes for which strychnine is prescribed by homeopathic practitioners. We reject this ground of appeal.

[3] One of the defence theories at trial was that the deceased likely died from an accidental dose of strychnine consumed as part of a homeopathic remedy taken to assist her in conceiving a male child and/or to remedy her persistent headaches. This generalized theory gained particular purchase when the appellant testified at trial, for the first time, that he had actually seen his wife take a powdered homeopathic (“desi”) medicine on one or two occasions, including at a time shortly before her fatal incident, for the express purpose of attempting to conceive a male child. In his prior statements to the police, the appellant had expressly denied that his wife took homeopathic medicine. Indeed, he said that she did not and that he did not know of any homeopathic medicine around the house.

[4] In these circumstances, we agree with the trial judge that the proffered reply evidence was admissible to respond to specific evidence given by the appellant at trial, the particularity of which the Crown could not reasonably have anticipated. We, therefore, see no basis on which to interfere with the trial judge’s discretionary evidential ruling to admit the reply evidence.

[5] Second, the appellant submits that the trial judge erred by failing to provide a limiting instruction to the jury on the proper use of demeanour in assessing credibility. We also reject this ground of appeal.

[6] The trial judge told the jury:

You are entitled to take into account the witness’s demeanour in the witness box, which is just another way of saying whether the witness appeared to come across as being sincere, candid and forthright, or, on the other hand, whether the witness appeared to be evasive, unresponsive, argumentative or incapable of telling the truth.

[7] The appellant argues that this instruction did not go far enough and that the trial judge was obliged to caution the jury about the dangers of relying too heavily on demeanour. We disagree. At the time of this trial, the governing authorities did not require this type of augmented caution. Moreover, experienced defence counsel in this case did not object to the instruction provided. This confirms our view that the appellant suffered no prejudice from the impugned instruction. In these circumstances, we would not give effect to this ground of appeal.

[8] The appeal is dismissed.

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”