R. v. Mehl, 2017 BCSC 1841

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mehl, 2017 BCSC 1841 Date: 20170920 Docket: 169210-2 Registry: Victoria Regina v. Kaela Janine Mehl Ban on publication pursuant to s. 648(1) of the Criminal Code , R.S.C. 1985, c. C-46. This ban restricted the publication, broadcasting or transmission, in any way, of any portion of the trial at which the jury was not present. The publication ban applied until the jury retired to consider its verdict.

Before: The Honourable Madam Justice DeWitt-Van Oosten Oral Reasons for Judgment (Ruling 8) Defence Objection to Demeanour Evidence Counsel for the Crown: Kimberly A. Henders Miller Lorne T. Phipps Counsel for the Accused: Jeremy W.D. Mills Kirk T. Karaszkiewicz Place and Dates of Hearing: Victoria, B.C. September 20, 2017 Place and Date of Judgment: Victoria, B.C. September 20, 2017 I. BACKGROUND [ 1 ] Kaela Janine Mehl is charged with first degree murder in the death of her 18-month-old daughter, Charlotte Cunningham, contrary to s. 235(1) of the Criminal Code , R.S.C. 1985, c. C-46.

The matter is in the midst of trial before a jury. The Crown has closed its case. The accused has not yet made her opening statement or called any evidence. [ 2 ] As I have explained in other evidentiary rulings issued during this trial, the accused admits the actus reus of the offence. Admissions of Fact have been filed and marked as an exhibit before the jury. The accused admits that in the early morning hours of September 16, 2015, she fed her daughter yogurt mixed with a prescription drug, Zopiclone, and smothered her.

Death was caused by overdosing on Zopiclone. [ 3 ] The death occurred at a time when the accused was embroiled in a high conflict dispute with the child's father, Daniel Cunningham, and his family over access to, and parenting of, Charlotte. [ 4 ] It is the Crown's theory that the death was planned and deliberate, motivated by a desire to deprive the father and his family of participation in Charlotte Cunningham's life.

The central issue before the jury will be mens rea, otherwise described as intent. [ 5 ] The accused has given notice to the Crown, as well as the Court, that she will likely advance a defence under s. 16 of the Criminal Code , namely: that although the accused committed the actus reus for the offence of murder, she is not Not Criminally Responsible for the act on Account of a Mental Disorder. The accused has not yet said when the defence will be advanced, pre-or post- verdict. See R. v. Brown , 2006 BCSC 1581 , at para. 24 .

However, I have been told that psychiatric opinion evidence in support of the defence will likely be called as part of the defence case. [ 6 ] On the seventh day of trial, prior to close of the Crown's case, the accused raised a concern about the admissibility of several pieces of "demeanour" evidence that had gone before the jury. The concern was noted; the Crown was allowed to call its remaining witnesses and close its case; and the issue raised by the defence was scheduled for argument and a ruling. The jury was stood down for a day to accommodate submissions.

Argument proceeded before me today. [ 7 ] In their testimony before the jury, some of the Crown's witnesses were asked to describe the demeanour or emotional state of the accused in the months preceding the date of the offence, or during particular incidents that were observed by the witness during this same time frame.

[ 8 ] Examples of the evidence include (but are not limited to), the following: • Sue Masters was familiar with both the accused and Daniel Cunningham, the father of the child who is now deceased. She testified that after the breakdown of their marriage, she would see the parties interact. This included interaction during Daniel Cunningham's supervised parenting time with Charlotte Cunningham. Sue Masters described the accused as "not happy" when she spoke with Daniel Cunningham.

She also said the accused would get "angry" when she talked with Sue Masters about the situation involving her former husband. • Sue Masters described a specific incident in September 2015 when she accompanied the accused to the Saanich police station to drop Charlotte Cunningham off for parenting time with Daniel Cunningham. She said the accused went inside and then came back out to the car, telling her that Daniel Cunningham was not there. She was "annoyed and a little bit upset".

The accused was "angry" that he did not show up and they went home. • Sue Masters also described an incident on September 14, 2015, when she assisted the accused with moving possessions out of the former marital home. She said while they were there, there were times when the accused was "fine" and "reasonably calm". On other occasions, including when Daniel Cunningham came near her, she "got angry". She also "got angry" toward his parents. She "looked angry and when she spoke, she sounded angry and frustrated". • A Victoria police officer, Det. Bland, attended at the former marital home on this occasion.

Police had been requested to attend by the accused. Det. Bland testified that when she first arrived, she spoke with the accused and Ms. Mehl did not want them there anymore. She was "abrupt" and did not want to answer any questions. Det. Bland went inside. She saw Daniel Cunningham, who she described as "relatively calm". She also spoke with the former father-in-law, Brent Cunningham, who she described as "very calm". • Ashley Cunningham was called as a witness by the Crown. She was a sister-in-law to the accused and, at one point, they had a close relationship.

Among other things, Ashley Cunningham was asked about her "impressions" of the accused when she saw her after the separation between the accused and Daniel Cunningham. The accused was with her child at the time.

Ashley Cunningham said the accused "seemed like she was doing really good". [ 9 ] As noted, these are only some examples of the impugned evidence, as led by the Crown. [ 10 ] The defence also elicited demeanour evidence from the Crown witnesses. [ 11 ] Again, as examples only, in cross-examination Ashley Cunningham was asked questions about Brent Cunningham, the former father-in-law of the accused, and his behaviour as perceived by both Ashley Cunningham and the accused.

This witness described Brent Cunningham's persona and demeanour as "controlling". [ 12 ] Both Ashley Cunningham and Daniel Cunningham were asked by counsel for the defence to describe the demeanour of the accused post-separation, including whether they saw signs of "paranoia" on her part, or "unrealistic" fears. [ 13 ] Cst. Swanson testified at trial. He placed a phone call to the accused on September 15, 2015, the evening before the death of the child.

He told the accused that her former husband had complained about possible non-compliance with a family law court order, and she needed to understand that non-compliance could result in arrest and apprehension of the child. Defence counsel asked Cst. Swanson in cross-examination whether Kaela Mehl seemed "deflated" at the end of the call. The officer said he "could not disagree" with that description. [ 14 ] The accused says evidence of the type set out above should not have gone before the jury. She argues, firstly, that the evidence is irrelevant.

It is evidence of a witness's subjective impressions of demeanour and inferences drawn from the impression, not evidence of objective facts. Within this context, it offers no assistance to the jurors in their own fact-finding process, including inferences they may be asked to draw. Second, even if this evidence is admissible, the accused says its prejudicial effect outweighs its probative value and it should not have been admitted. The evidence carries a realistic potential of reasoning prejudice. [ 15 ] In making this argument, the accused relies primarily on R. v.

White , 2011 SCC 13 . [ 16 ] In that case, the appellant was charged with second degree murder. He was alleged to have shot and killed the victim during the course of a physical altercation. The appellant fled the scene, but was later apprehended by police. By the end of trial, the only real issue before the jury was whether, at the time of the shooting, the appellant had the intent for murder. [ 17 ] In R. v. White , the Crown pointed to the appellant's flight from the scene as post-offence conduct that was probative on the issue of intent. Moreover, eyewitnesses described the flight as immediate.

The appellant did not hesitate before fleeing; nor did he appear to be shocked when the shooting occurred. In its closing argument, the Crown relied on these descriptions as evidence of intentional conduct. The prosecutor suggested to the jury that: "One would expect hesitancy if the shot was anything other than the intended action of Dennis White": R. v. White , para. 4 . [ 18 ] Defence counsel at Mr. White's trial did not object to this line of argument by the Crown, or attempt to rebut it. Nor did he object to the manner in which the trial judge presented the issue to the jury in his final instructions: R. v.

White , para. 5 . The appellant was convicted. [ 19 ] Before the Supreme Court, Mr. White's lawyer argued that the jury should have been told that the evidence of flight had no probative value and he sought to have his conviction overturned: R. v. White , para. 6 . [ 20 ] The appeal was dismissed. In a judgment written by Rothstein J. (with the concurrence of three other members of the Court), he juxtaposed the evidence tendered by the Crown in R. v.

White with other, less reliable forms of demeanour evidence, and said: 75 This evidence [a lack of hesitation by the accused before he fled the scene of the shooting] was not tainted by the hallmark flaws

associated with "demeanour evidence" so as to be irrelevant. Such hallmark flaws are generally associated with evidence in the form of awitness's impression of the accused's mental or emotional state (e.g. appeared calm or nervous), as inferred by the witness from theaccused's outward appearance or behaviour. The accused's mental or emotional state is then submitted as suspect and probative of guilt(see Nelles; R. v. Levert (2001), (ON CA), 150 O.A.C. 208 (Ont. C.A.), at paras. 24-27; R. v. Trotta (2004), (ON CA), 191 O.A.C. 322 (Ont.

C.A.) at paras. 40-43 (an appeal was allowed by this Court and a new trial was ordered,but solely on the basis of fresh evidence, 2007 SCC 49, [2007] 3 S.C.R. 453 (S.C.C.))). 76 A problem with such evidence is that the inferential link between the witness's perception of the accused's behaviour and theaccused's mental state can be tenuous (Trotta, at para. 40). The witness's assessment depends on a subjective impression andinterpretation of the accused's behaviour (Levert, at para. 27). Moreover, it appears to involve an element of mind reading (R. v.Anderson, 2009 ABCA 67, 3 Alta. L.R. (5th) 29 (Alta.

C.A.), at para. 51). Additionally, insofar as the witness is inferring the accused'sstate of mind from the accused's outward appearance, there may be a legitimate concern that this is inadmissible lay opinion evidence.This is to be contrasted with evidence of objective conduct that allows the jury to draw its own inferences about the accused's state ofmind. [Emphasis added.] [21] In the case before me, counsel for the accused points to paragraphs 75 and 76 of R. v.

White as support for his argument thatdescriptions of the emotional state of Kaela Mehl, her demeanour, or the tone of her voice during particular conversations, as currentlybefore the jury, should not have been admitted. In his view, the demeanour evidence called by the Crown is exactly of the type thatRothstein J. described as so "tainted by the hallmark flaws" associated with demeanour evidence, it should be treated as irrelevant.

According to the accused, this is just another way of saying that the evidence is inadmissible. [22] If the Court agrees with the accused's argument on the issue of admissibility (or, even that the prejudicial effect of the impugnedevidence outweighs its probative value), it is the position of the defence that so much of this evidence has been put before the jury, itcannot be cured by any limiting instructions before the start of deliberations. [23] Accordingly, she seeks to have me withdraw the case from the jury, applying the same process that is allowed within thecontext of a directed verdict: R. v.

Rowbotham; R. v. Roblin, (SCC), [1994] 2 S.C.R. 463. Once the case has beenwithdrawn, the accused asks that I carry on with the trial as the trier of fact, including presiding over any determination of whether theaccused is Not Criminally Responsible on Account of Mental Disorder, within the meaning of the Criminal Code. [24] If the Court is not prepared to withdraw the case from the jury, based on jurisdictional concerns, or otherwise, the accused seeksa mistrial. She acknowledges that the test for a mistrial is a stringent one.

It should only be granted in the "clearest of cases", wherethere is a "fatal wounding of the trial process" that cannot be cured through "less extreme, corrective measures" that are capable ofpreventing a miscarriage of justice: R. v. Muller, 2013 BCCA 528, at paras. 65–66.

The accused says withdrawing the case from thejury is a "less extreme, corrective measure". [25] It is the Crown's position that the demeanour evidence complained of by the accused is properly before the jury. [26] Among other things, this evidence is relevant to the nature of the relationship between the accused and Daniel Cunningham'sfamily post-pregnancy and in the months leading to the offence, including hostility between the parties. It is relevant to the level ofstress, and the stressors, experienced by the accused post-separation and prior to the actus reus of the offence.

And, it will assist the juryin understanding the dynamics that may or may not have impacted the accused's state of mind when she caused Charlotte Cunningham'sdeath. [27] The relevance of this evidence to live issues at trial is made readily apparent, argues the Crown, by virtue of the fact that it waselicited not only by the Crown during examination-in-chief, but by defence counsel.

Moreover, the psychiatric opinion evidence that thedefence will likely tender in support of a s. 16 defence, or on the issue of mens rea generally, has taken into account and relies uponsome of these witnesses' observations of Kaela Mehl's emotional state and her demeanour after the breakdown of her marriage to DanielCunningham. The evidence is highly relevant to her state of mind, both before and at the time of the offence. II.

LEGAL PRINCIPLES and ANALYSIS [28] In my view, the evidence complained of by the accused is best characterized as "non-expert opinion" evidence that is tenderedthrough lay witnesses on the issue of demeanour. [29] Moreover, the Supreme Court's decision in Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819, is directly onpoint as it relates to the issue of admissibility. There, Dickson J. wrote the following on behalf of the Court, at pp. 835–836: … The ... subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one … (

i) the identification ofhandwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) theemotional state of a person, e.g., whether distressed, angry, aggressive, affectionate or depressed; (

v) the condition of things, e.g., worn,shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance. … … It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age,speed, identity or emotional state. [Emphasis added; Internal reference omitted.] [30] R. v. Graat continues to be applied as binding authority in this area of the law. See, for example: R. v. B.(H.), 2016 ONCA 953,at para. 74. [31] Counsel for the accused has not persuaded me that R. v. White has changed the law on admissibility, post-Graat. The accused

argues that the judgment of Rothstein J. impliedly revises the law through its approval of certain passages from R. v. Trotta, (ON CA), wherein Doherty J.A. explicitly acknowledges that "[d]emeanour evidence has been routinely admitted in criminalproceedings", but, it is "now recognized … that the probative value of such evidence is in many circumstances more apparent than real":at para. 40. [Emphasis added.] [32] I do not read R. v. White this way. Rather, as I interpret the paragraphs cited by counsel for the accused, as well as otherportions of the decision, R. v.

White reminds trial judges to be circumspect and cautious about this type of evidence in light of the frailtiesrecognized in cases such as R. v. Trotta, and, when it is placed before a jury, to ensure that the jury is clearly instructed on its frailties,where appropriate, and the limited use that may be made of it. [33] This is particularly so when the evidence is tendered in relation to post-offence conduct and forms part of an overall submissionthat the post-offence conduct is probative of guilt, including the issue of intent. [34] The comments of Binnie J., writing for the dissent in R. v.

White, are apposite: [185] In

summary, my view is that the courts should continue to draw on their experience with evidence of post-offence conduct -especially where it involves post-offence "demeanour evidence" - and instruct juries with this experience in mind, just as is done byjudges with the evidence of jailhouse informants, criminal records, eyewitness identification and evidence of uncharged conduct (i.e.similar fact evidence). Of course, every argument about the need (or not) of a limiting instruction turns on the facts of the case …[Emphasis added.] [35] R. v.

White also makes clear that there may be circumstances in which the probative value of this type of evidence is somarginal, or that its link to a live issue at trial is so tenuous, that the evidence will fail to meet the test for relevance and should not bepermitted. Or, depending on the particular circumstances of the case, the "hallmark flaws" known to be associated with this type ofevidence may result in its prejudicial effect outweighing its probative value, such that a trial judge should exercise his or her inherentdiscretion to exclude. See also, Graat v. The Queen, at paras. 48–49; R. v.

Anderson, 2009 ABCA 67, at para. 51; and R. v.

Levert, (ON CA), at paras. 24–28. [36] Whether such evidence should be excluded, or a limiting caution is required, involves an individualized enquiry to be done on acase-by-case basis. [37] In this case, I am satisfied that the non-expert opinion evidence tendered by the Crown, and elicited by the defence in cross-examination, is relevant to live issues in the trial and, its prejudicial effect does not outweigh its probative value. [38] In a pre-trial ruling indexed at 2017 BCSC 1555, I stated the following, within the context of an application by the defence toexclude certain evidence that the Crown intended to lead as part of its case: [71] … whether one examines this case through the lens brought to bear by the Crown, or the defence, evidence of the historybetween the accused and Daniel Cunningham's family as it relates specifically to the child; the nature of the dynamics between them; theescalation of acrimony over time; the accused's perception of events post-separation, including their impact on her capacity to controlaccess to her daughter; and, the accused's concerns about the safety of her child, as relayed to others, is evidence that is highly relevant tocontested issues at trial. [39] In my view, the evidence that the accused complains of mid-trial, appropriately falls within scope.

Moreover, its prejudicialeffect, including the "hallmark flaws" emphasized by counsel for the defence, can be effectively addressed through a limiting orcautionary instruction to the jurors prior to their deliberations. [40] I understand the frailties associated with this type of evidence, as well as its potential prejudicial effect, particularly when agood amount of it has been called. Indeed, in one of the pre-trial voir dires in this case, I disallowed the Crown from calling non-expertopinion evidence on the accused's demeanour from a particular witness (Sgt. Rice), because of its prejudicial effect.

In that ruling, Inoted that the demeanour evidence offered by Sgt. Rice consisted largely of observations he made of the accused after the incidents thatwere said to have caused emotional distress on her part, and, these observations included numerous inferences drawn by him that werebased on overheard conversations that the witness was not a party to. [41] The evidence at issue in this ruling is different.

The impugned witnesses have described the accused's emotional state, or themanner in which she was conducting herself, while they were directly interacting with her, or she was in their direct physical presence. [42] Contrary to what counsel for the accused suggests, the Crown's case is not rife with this type of evidence.

Moreover, theopinions on demeanour, as conveyed, do not relate to conduct or actions of the accused at the time of the actus reus (none of thewitnesses were present); and, perhaps most importantly, they do not form part of any alleged post-offence conduct, which itself is a risk-laden area of evidence. In this sense, the evidence contested by the accused, and the context within which it was led, is qualitativelydistinct from R. v. White, where the risk associated with post-offence conduct and its intended use as evidence of consciousness of guiltloomed large in the analysis. [43] I note that in R. v.

Trotta, the case cited by the accused as impliedly resulting in a change to the law on the admissibility ofdemeanour evidence, the impugned evidence was found to be admissible: at paras. 37–44. [44] Finally, this evidence has not only been led by the Crown. It has also been led by the defence, presumably because it isconsidered relevant to the defence theory, or relevant to rebuttal of the Crown's theory. Either way, I agree with Crown Counsel on thispoint: the link between the demeanour evidence and contested issues at trial is readily apparent. III. CONCLUSION

[ 45 ] I conclude that the evidence of demeanour currently before the jury was admissible and, during the course of the defence case, counsel for both sides are entitled to elicit this type of evidence where considered necessary in support of their respective theories. [ 46 ] If objections arise to its admissibility, they should be clearly stated in light of this ruling, and the jury will be stood down for the purpose of legal argument. [ 47 ] At the pre-charge conference, counsel for both sides will have opportunity to provide the Court with their submissions on what they consider a cautionary or limiting instruction to the jury on the use of demeanour evidence should consist of. [ 48 ] As a result of this conclusion, I need not address the remedy of withdrawal posited by counsel for the defence, including this Court's jurisdiction to do what he asks. [ 49 ] Finally, my Reasons for Judgment on this ruling are brief.

There is further analysis that I could have done and/or a greater review of the applicable case law. However, this issue was raised by the defence mid-trial. The jurors were stood down for a day to facilitate submissions and a ruling by the Court. Both sides required resolution of the issue and clarity for when the jury returns. In the interests of moving matters forward, I determined it appropriate to issue Reasons that are less comprehensive than they might otherwise have been. "DeWitt-Van Oosten J."