COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Salmon, 2015 ONCA 469

DATE: 20150623

DOCKET: C60282

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Frederick Salmon

Appellant

James Lockyer and Marie Henein, for the appellant

Gregory J. Tweney and Elise Nakelsky, for the respondent

Heard and released orally: June 22, 2015

On appeal from the conviction entered on .March 6, 1971 by Justice Wright of the Supreme Court of Ontario (now known as the Superior Court of Justice), sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of manslaughter in the death of his common-law wife, Maxime Ditchfield. Ms. Ditchfield died on September 22, 1970. Following a jury trial, the appellant was convicted of manslaughter on March 5, 1971. He was sentenced to ten years’ imprisonment. He served three years and four months of this sentence and was paroled in July 1974.

[2] The appellant appealed his conviction and sentence to this court. The appeal was dismissed in an oral endorsement on November 10, 1972: see R. v. Salmon (1972), 1972 CanLII 1340 (ON CA), 10 C.C.C. (2d) 184. The appellant did not seek leave to appeal to the Supreme Court of Canada.

[3] The appellant always maintained his innocence. In 2000, he contacted his present counsel, James Lockyer. Commencing in 2002, Mr. Lockyer retained the services of two forensic pathologists and a forensic neuropathologist to review Ms. Ditchfield’s death. Their unanimous opinion was that she died of natural causes after a fall or series of falls. This contradicted the opinion, and testimony at the trial in 1971, of the pathologist who conducted the autopsy on Ms. Ditchfield’s body. He testified that “it takes considerable force” to cause the type of brain injuries suffered by Ms. Ditchfield. There is no doubt that his testimony was central to the appellant’s conviction.

[4] In 2012, the appellant, with the Crown’s consent, applied to the Supreme Court of Canada for leave to appeal the November 10, 1972 decision of this court, along with a 40 year extension of time application. The appellant requested an order pursuant to s. 43(1.1) of the Supreme Court of Canada Act for a remand of his case to this court for consideration of fresh evidence. On October 25, 2012, the Supreme Court of Canada granted the extension of time and ordered that the case be remanded to this court: see Salmon v. The Queen, SCC Case #34894.

[5] In preparing for the appeal, the Crown retained the services of a clinical neuropathologist. Like the appellant’s experts, the Crown expert did not agree with the opinion of the doctor who conducted the autopsy to the effect that Ms. Ditchfield’s death was likely caused by blunt force trauma to the head. Instead, the Crown expert’s opinion is that the nature of Ms. Ditchfield’s injuries was not caused by blunt force or violence; rather the injuries were consistent with a fall or series of falls.

[6] Thus we arrive at what is essentially a joint submission by the parties. The appellant submits that the four medical reports meet the test for the admission of fresh evidence set out in R. v. Palmer, [1981] 1 S.C.R. 759. The respondent agrees: “They are unquestionably admissible and they are dispositive of this appeal.”

[7] The ultimate position of both parties is the same: the appeal should be allowed, the conviction for manslaughter set aside, and an acquittal entered.

[8] We have reviewed the entire record, including the four medical reports. We agree that they should be admitted as fresh evidence and that they are dispositive of the appeal.

[9] The appeal is allowed, the conviction for manslaughter is set aside, and Mr. Salmon is acquitted of the offence of manslaughter.

[10] We make two final comments.

[11] First, in allowing the appeal, we wish to express the Court’s great regret that as a result of the comprehensive and unanimous medical evidence now before us it is clear that Mr. Salmon was wrongly convicted and spent more than three years in a penitentiary.

[12] Second, we record our gratitude to the appellant’s and Crown counsel for their efforts on this appeal. Both were entirely professional throughout the entire process leading to the decision today.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”