Court of Appeal for Ontario

Date: 2019-06-21 Docket: C60457

Judges: Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

George Christopher Gale Appellant

Counsel

For the Appellant: Brian H. Greenspan and Peter R. Hamm

For the Respondent: Alexander Alvaro

Heard: June 6, 2019

Appeal Information

On appeal from the conviction entered by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury, on July 23, 2013 and from the sentence imposed on October 10, 2013, with reasons reported at 2013 ONSC 1107 and 2013 ONSC 6308.

Reasons for Decision

Overview

[1] George Christopher Gale appeals his second degree murder conviction arising from the shooting death of his common law partner, Jocelyn Bishop. He also appeals the 15 year parole ineligibility portion of his sentence.

The Conviction Appeal

[2] Ms. Bishop was killed by a single shot to the top of her head. Mr. Gale admits that he buried her body in the backyard of the house they lived in together and took other steps to conceal her death, including lying to her family and police, attempting to clean the area of the house where she died, and destroying the firearm. He claimed at his trial that he did not shoot Ms. Bishop, but in fact witnessed Ms. Bishop, a mentally fragile and suicidal woman, shoot herself after attacking him. He testified that he attempted to conceal her death to suppress the fact of her suicide and to avoid having to watch her family members pretend to grieve her. The jury was not left in doubt by his story.

[3] Evidence supporting Mr. Gale's conviction included the testimony of Mr. Gale's friend, Justin Darlington, who testified that before Ms. Bishop's death, Mr. Gale spoke about shooting her and burying her in the backyard. The parties agree that this evidence was significant in rebutting Mr. Gale's version of events.

[4] Mr. Gale argues that the trial judge erred by unfairly circumscribing Mr. Gale's cross-examination of Mr. Darlington, by ruling that no mention was to be made before the jury of a polygraph that had been administered to Mr. Darlington. Mr. Gale contends that he should have been permitted at trial to point out that it was only after Mr. Darlington was led to believe that he had failed a polygraph test that he first made the claim that Mr. Gale threatened to shoot and bury Ms. Bishop. Mr. Gale contends that this was a key part of the coercion the police allegedly exercised against Mr. Darlington to induce him to provide evidence that would incriminate Mr. Gale. Mr. Gale urges that he should have been permitted to explore the impact of the polygraph on Mr. Darlington's change of position. Indeed, he argues that the trial judge's decision to exclude evidence about the polygraph had the effect of misleading the jury, who were left unequipped to appreciate the full extent of the police coercion used against Mr. Darlington.

[5] Mr. Gale also appeals his conviction because of the trial judge's decision to permit Cst. Coon to testify as an expert forensic bloodstain analyst. Cst. Coon offered the opinion that the bloodstain patterns in the home were inconsistent with Mr. Gale's claimed suicide scenario.

[6] Mr. Gale urged in his factum that the trial judge erred by permitting Cst. Coon to offer expert testimony, as Cst. Coon was not qualified to do so. Mr. Gale also argues that the trial judge erred by focusing on the admissibility of the opinion offered, rather than on Cst. Coon's qualifications. These arguments were not pressed in oral argument, but they have not been abandoned so we will address them briefly.

A. The Bar on Mentioning the Polygraph

[7] Mr. Gale brought an application at trial pursuant to Charter, s. 7, arguing that the admission of Mr. Darlington's testimony about Mr. Gale's threatening comment would undermine Mr. Gale's right to make full answer and defence. He asked for the evidence to be excluded by way of remedy. This application rested on Mr. Gale's submission that any reference to the polygraph would be inadmissible, and that the legal bar on his ability to refer to the polygraph to challenge Mr. Darlington's testimony would prevent him from cross-examining Mr. Darlington fully.

[8] The trial judge disagreed. He held that the required exclusion of the polygraph would not undermine Mr. Gale's right to full answer and defence. He reasoned that Mr. Gale could present his defence by using the inconsistent statements made by Mr. Darlington, as well as other circumstances, to cross-examine Mr. Darlington extensively about the truthfulness of the threatening comment he attributed to Mr. Gale. Those circumstances include other allegedly coercive behaviour by the police, such as interviewing Mr. Darlington twice for many hours, and threatening to charge him as an accessory after the fact. The trial judge therefore denied the Charter application to exclude the evidence.

[9] It is important to appreciate what is being challenged on appeal. Mr. Gale is not challenging the trial judge's denial of his s. 7 Charter application. Instead, he is appealing the measures the trial judge took to enforce the "exclusionary rule" that Mr. Gale's counsel relied upon in support of his application. Specifically, after his Charter ruling, the trial judge directed that no witnesses were to refer to "the results or the fact of a polygraph" and the statements were to be edited to remove reference to the polygraph. Mr. Gale now says that the trial judge's attempt to enforce the exclusionary rule he relied upon in support of his application was unfair and improper. Unlike at trial, he now contends that evidence about the administration and use of the polygraph when the police were interviewing Mr. Darlington was in fact admissible, and that the trial judge should have permitted him to challenge Mr. Darlington with this information.

[10] We agree with Mr. Gale that the trial judge, as well as the parties, operated under a mistaken belief that mention of the polygraph was inadmissible. In part because of concerns about the unreliability of polygraph results, the law prevents those results from being used to prove or disprove the truth of statements made during the polygraph examination, or to oath-help: R. v. Beland, [1987] 2 S.C.R. 398. But where it is relevant to the credibility of a witness, the law does not prevent a party from proving the fact that a polygraph was used in securing information from a witness: R. v. Charrette, [1994] O.J. No. 2509 (Ont. Gen. Div.), at para. 19; R. v. Sipes, 2010 BCSC 1364, at para. 34.

[11] The difficulty for Mr. Gale, however, is that during the trial he did not want the jury to learn that a polygraph had been taken. Put otherwise, he did not want the benefit of the rule of admissibility that he now seeks to invoke. A number of things make this clear.

[12] First, during the Charter application, Mr. Gale's trial counsel expressed concern that if Mr. Darlington was permitted to testify about Mr. Gale's threat, the polygraph could come out unintentionally during the cross-examination. Then, after the trial judge's ruling and direction that the polygraph not be mentioned by witnesses or in recorded statements played in court, Mr. Gale's trial counsel was asked whether there was anything else. He did not take the opportunity to raise any issue with the trial judge's measures to prevent the polygraph from being made known to the jury, as might have been expected from senior counsel in response to an uninvited ruling that would harm the defence case. Instead, Mr. Gale's trial counsel said:

No, thank you, Your Honour. As I say – and you've hit my concern, is the warning that would go to the witness. And I may remind my friend and yourself at the appropriate time, but I'm just scared that he blurts it out. [Emphasis added.]

[13] Mr. Gale's appeal counsel argued that, with these words, Mr. Gale's trial counsel was simply expressing concern about the risk of a mistrial, should information about the polygraph come out. With respect, this explanation is most unlikely. Mr. Gale's experienced trial counsel would have understood that inadvertent disclosure would likely be addressed with a jury direction, as the trial judge suggested, not a mistrial. Moreover, in his comments Mr. Gale's trial counsel felt the need to say that he may have to caution the Crown and the trial judge about the need to prevent mention of the polygraph. This strongly suggests that trial counsel's focus was not on the concern that all of the parties would share in avoiding a mistrial, but rather on a concern that was particular to Mr. Gale. Of course, we cannot know for certain what that concern was, but the most probable explanation for why defence counsel was "scared" the polygraph would come out in cross-examination was the palpable risk that if the jury was to learn of the polygraph it would prejudice Mr. Gale. Specifically, jurors would be apt to use the sequence of events to infer that Mr. Darlington's testimony about the threat must be true, coming as it did after he was apparently caught lying during a polygraph examination.

[14] Ultimately, it does not matter why Mr. Gale's trial counsel did not want any mention of the polygraph. The fact is that at trial, he clearly did not want any mention to be made of the polygraph. Mr. Gale cannot now appeal on the footing that the trial judge gave him what he wanted. We would therefore deny this ground of appeal.

B. Cst. Coon's Expertise

[15] The trial judge did not err in qualifying Cst. Coon as an expert witness, even though he was only an apprentice bloodstain analyst when he attended the crime scene. In coming to this conclusion we need not resolve whether, as an apprentice, he had sufficient expertise to offer the opinions he did. By the time Cst. Coon testified at the trial, he was an accredited bloodstain analyst, fully qualified to interpret the blood staining he had personally observed and witnessed being recorded when he attended the crime scene.

[16] Nor is there anything to the suggestion that the trial judge improperly focused on admissibility considerations relating to the kind of expert opinion offered, when the real issue was expertise. The trial judge understood that the issue before him was with Cst. Coon's qualifications. He identified expertise as the issue before him, cited the correct test for expertise, and offered a specific conclusion on that issue that found support in his reasoning.

[17] We would therefore also dismiss this ground of appeal.

The Sentence Appeal

[18] We would dismiss Mr. Gale's sentence appeal, as well, notwithstanding that the trial judge imposed a 15 year parole ineligibility period in the face of the recommendation of 10 jurors that Mr. Gale should be eligible for parole after 10 years.

[19] The trial judge applied the correct legal framework for considering whether to reject a jury recommendation on parole ineligibility, and gave cogent reasons for his conclusion. We do not agree that he failed to explain his decision. He held that the recommendation was "totally unrealistic". He made it clear that it would be contrary to the principles of sentencing to impose a 10 year parole ineligibility period in the circumstances of a domestic homicide committed with a gun in the couple's home, where the accused has attempted to get rid of the body and then lied to the victim's family about the victim's disappearance, and where there has been no mitigating guilty plea. In his view, 15 years of parole ineligibility was required. We would not interfere with the reasonable decision arrived at by the trial judge, which was for him to have made.

[20] Nor do we accept that it was an error for the trial judge to move to the top of the range of 12-15 years for parole ineligibility in domestic homicides identified in R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 54. If accepted, the submission that a judge is obliged to sentence at the bottom of the range where a jury recommends the minimum parole ineligibility would improperly convert recommendations for consideration into operative limits on judicial discretion.

Disposition

[21] We therefore dismiss the conviction appeal. We grant leave to appeal sentence, but also dismiss the sentence appeal.

Alexandra Hoy A.C.J.O. C.W. Hourigan J.A. David M. Paciocco J.A.