2019 NBCA 78, 2019 NBCA 78

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 63-16-CA JAMES TURPIN APPELLANT JAMES TURPIN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Turpin v. R., 2019 NBCA 78 Turpin c.

R., 2019 NBCA 78 CORAM: The Honourable Chief Justice Richard The Honourable Justice Larlee The Honourable Justice Green The Honourable Justice French The Honourable Justice LaVigne CORAM : l’honorable juge en chef Richard l’honorable juge Larlee l’honorable juge Green l’honorable juge French l’honorable juge LaVigne Appeal from a decision of the Court of Queen’s Bench: June 10, 2016 (conviction) August 3, 2016 (sentence) Appel d’une décision de la Cour du Banc de la Reine : le 10 juin 2016 (déclaration de culpabilité) le 3 août 2016 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: Court of Appeal: [2017] N.B.J.

No. 340 Procédures préliminaires ou accessoires : La Cour d’appel : [2017] A.N.-B. n o 340

Appeal heard: November 13, 2018 Appel entendu : le 13 novembre 2018 Judgment rendered: October 31, 2019 Jugement rendu : le 31 octobre 2019 Reasons for judgment by: The Honourable Chief Justice Richard Motifs de jugement : l’honorable juge en chef Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Green The Honourable Justice French The Honourable Justice LaVigne Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Green l’honorable juge French l’honorable juge LaVigne Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn A.

Gregory, Q.C. Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn A. Gregory, c.r. THE COURT The appeal is allowed, the conviction for second degree murder is set aside, an acquittal is entered for that offence and a new trial is ordered on a charge of manslaughter. LA COUR L’appel est accueilli, la déclaration de culpabilité pour meurtre au deuxième degré est écartée, un acquittement est inscrit à l’égard de cette infraction et la tenue d’un nouveau procès sur l’accusation d’homicide involontaire coupable est ordonnée.

The judgment of the Court was delivered by RICHARD, C.J.N.B. I. Introduction [ 1 ] Michael Terry was home on April 2, 2004, caring for his young son when, sometime after 9:00 A.M., he

heard knocking on his door. Upon answering, he found a frantic James Turpin cradling an unconscious toddler in his arms. Mr. Turpin dressed only in a t-shirt, boxer shorts and socks, hysterically asked Mr. Terry to drive them to the hospital. Assessing the situation as serious, Mr. Terry had Mr. Turpin lay the child on a chair. He recognized the child as two-year-old Kennedy Corrigan, who lived next door with her mother, Connie Corrigan, a woman with whom Mr. Turpin was in a relationship. Kennedy was dressed only in panties. Mr. Turpin explained she had fallen in the bathtub and lost consciousness. Mr.

Terry noticed the little girl was not wet. [ 2 ] Almost immediately, Mr. Terry called 911. He repeated to the operator what Mr. Turpin had told him. While Mr. Terry was speaking to the 911 operator, an obviously distraught Mr. Turpin was heard trying to get the young girl to wake up. Questioned again by Mr. Terry, Mr. Turpin explained Kennedy had “hit the back of her head … just as I was walking in the bathroom.” [ 3 ] Paramedics soon arrived at the Terry residence and were told Kennedy had fallen in the tub. Assessing her to be in respiratory distress, the first responders decided to take Kennedy to the Dr.

Everett Chalmers Hospital in Fredericton. Mr. Turpin accompanied her in the ambulance. Meanwhile, Mr. Terry agreed to care for Mr. Turpin’s own almost-three-year-old daughter, Chloe, who had been staying over at the Corrigan residence. [ 4 ] Connie Corrigan was called and quickly made her way to the hospital. Upon arrival, she found her daughter unconscious with very concerned hospital personnel attending to her. As she was not allowed to stay in the trauma room with her daughter, Ms. Corrigan was escorted out and told where to find Mr. Turpin.

She found him in a room, still dressed in a t-shirt, boxer shorts and socks. He was “incoherent.” She did not get a “straight answer” to her question regarding what had occurred. To her, “he didn’t make any sense.” She was becoming angry with him. Mr. Turpin gave Ms. Corrigan some “broken” and unclear explanations. She “understood something about hitting her with a doorknob when he walked into the room, the tub, she fell,” but “[i]t was very broken and – and none – none of it was very clear.” [ 5 ] Hospital personnel found Mr.

Turpin to be “hysterical” and “out of control.” At one point, he informed one of the doctors that Kennedy had been feeling unwell the previous evening and again in the morning. He explained she had some vomit in her hair, so he took her to the bath. It appears he intended to give both girls a bath. He said his own daughter ran from the bathroom and, as he turned, he saw Kennedy falling and hitting the back of her head in the tub. [ 6 ] While Mr.

Turpin consistently maintained Kennedy had fallen in the bath and struck the back of her head on the bottom of the tub, there were discrepancies regarding some of the details, especially around the question whether or not he had actually put both girls in the tub or whether they were actually both in the bathroom at the same time.

At least one of the doctors did not consider this to be a “major discrepancy […] because he was upset and [one] would expect the story to change a bit.” [ 7 ] A CT scan revealed the trauma Kennedy experienced resulted in soft tissue hematomas, swelling, hemorrhaging in various areas of her brain, but no fracture. There was neither external bleeding nor bruising visible on other parts of her body. Her condition was considered to be a very severe progressive brain injury.

Kennedy was sedated, medicated to ensure brain pressure did not increase, intubated and transferred to the IWK hospital in Halifax. [ 8 ] While a Medivac team transported Kennedy to Halifax by air, Ms. Corrigan, her cousin and her cousin’s fiancé made their way there by automobile. Meanwhile, Mr. Turpin had called a friend so he could go get his daughter at Mr. Terry’s home. From there, they would return Chloe to her mother in Dalhousie, a four-and-a-half-hour journey. En route, Mr. Turpin periodically wanted to stop to call Ms. Corrigan. In Dalhousie, Mr.

Turpin’s daughter was left in her grandfather’s care, and Mr. Turpin then made his way back to Ms. Corrigan’s residence. [ 9 ] Early in the morning on April 3, 2004, a police officer stopped M r . Turpin for speeding in Oromocto. His vehicle also had a broken rear taillight. Mr. Turpin informed the officer he absolutely had to get to Halifax. He explained he had been taking care of Kennedy and described how she had fallen in the bath, struck the back of her head on the bottom of the tub, become unconscious, had been taken to the hospital and later transferred to one in Halifax. Upon verifying Mr.

Turpin’s identity, the officer learned there were two outstanding warrants for him: a warrant of committal for failing to pay outstanding fines and an arrest warrant for failing to appear in court on a charge. Mr. Turpin’s driving privileges had also been suspended. From the police station, Mr. Turpin reached Ms. Corrigan at the IWK hospital and she confirmed the situation to the police officer. The officer decided to release Mr. Turpin on compassionate grounds but instructed him to turn himself in when he returned from Halifax. Since Mr.

Turpin could not drive on account of his privileges having been suspended, he called his friend to come pick him up at the police station.

[ 10 ] Eventually, Mr. Turpin made his way to Halifax. Upon arrival, he was directed to a social worker’s office and questioned about the incident. Ms. Corrigan found him to be concerned about Kennedy and her injuries. [ 11 ] Meanwhile, the RCMP launched an investigation, which involved searching the Corrigan residence, taking photographs and a video, and questioning some of the medical personnel. Two officers travelled to Halifax to meet with Connie Corrigan and Mr. Turpin. They asked Mr.

Turpin to accompany them to the Halifax Police detachment and informed him he had a right to speak to a lawyer, that he did not have to speak to them and that anything he said could be used against him. Throughout the 17-minute interview, Mr. Turpin maintained he had already related what had happened: she had fallen. During persistent grilling by the police, he repeatedly said he wanted to get back to the hospital. [ 12 ] At some point following the police interview, Mr. Turpin expressed concern to Ms.

Corrigan that the police were “going to pin this on [him].” Nevertheless, he did not waver from his statements that Kennedy had fallen in the bath; although, as Ms. Corrigan reported, he did not provide her with much more detail, and would become agitated when asked, “as if it was difficult for him to relive [the event].” [ 13 ] Tragically, Kennedy Corrigan did not recover from the injuries suffered on April 2 and, a week later, she was taken off life support and passed away in her mother’s arms. [ 14 ] When Ms. Corrigan returned home, she found the bathroom had already been cleaned.

The comforter from her own room, where the children slept the night of April 1, was in the washing machine. Upon his return, Mr. Turpin did not immediately turn himself in to the authorities as he had been instructed to do. [ 15 ] An autopsy was performed, from which it was determined the cause of Kennedy’s death was a closed head injury; however, the manner of death was undetermined. [ 16 ] The RCMP investigation continued. Mr. Turpin was eventually arrested on the outstanding warrants. On May 3, 2004, two officers interviewed him at the Dalhousie Correctional Centre.

He was again warned and cautioned and informed he could communicate with a lawyer. Mr. Turpin called for his lawyer but could not reach him. For the next hour, the police officers continued to question him. He insisted that on the morning of April 2 he wanted to bathe both girls because he could smell vomit in Kennedy’s hair. He began to run water in the tub, put Kennedy in and turned to get his own daughter, but she ran out. He explained it all happened very fast. As he was going out to get his daughter, he looked back and saw Kennedy standing, slip and fall. He immediately attended to her.

He took her out of the tub and laid her on a towel. She was unconscious and seemed to have difficulty breathing. He thought she was just “knocked out” and would regain consciousness. When that did not immediately happen, he put a pair of panties on her, took her in his arms and went to the neighbour’s house in a panic. Despite persistent questioning over the course of an hour, Mr. Turpin maintained Kennedy had fallen in the tub. [ 17 ] On November 23, 2004, a police officer arrested Mr. Turpin at his mother’s home and took him to the Dalhousie police station where he was again cautioned and warned.

From there, he was taken to the Bathurst Police Force office, and, the next day, he was interviewed. The videotaped interview lasted just over two hours. A 28-page transcript of the interview reveals an overwhelming majority of the time was consumed by the police officer lecturing, offering his own opinions and at times lying to Mr. Turpin. Mr. Turpin did not do much talking.

He cried, asked to see his mother whom he understood was coming to the police station, and continuously maintained that Kennedy had slipped in the tub and struck her head. [ 18 ] No charges were laid immediately following Kennedy Corrigan’s death; however, the police file was not closed. In 2006, the police pursued their investigation by meeting with doctors at the Hospital for Sick Children in Toronto: Dr. David Chiasson, a forensic pathologist, and Dr. William Halliday, a neuropathologist. The information received from them did not advance the investigation.

As a result, the file remained in abeyance until 2013, after the RCMP created a Historical Homicide Unit. The officer assigned to this unit pursued the investigation by reviewing all file materials and seeking another medical opinion through the office of the medical examiner in Halifax. In 2014, Dr. Marnie Wood, a forensic pathologist, reviewed all the materials and gave the police an opinion that would eventually lead to a criminal charge of murder laid against Mr. Turpin on June 3, 2015, more than eleven years after the death of Kennedy Corrigan. [ 19 ] Mr.

Turpin elected to be tried by a court composed of a judge and jury. Before the jury was empanelled, a voir dire was held to determine a number of issues, including whether leave would be granted to the Crown to examine more than five expert witnesses. This, because s. 7 of the Canada Evidence Act (“CEA”) , R.S.C. 1985, c. C-5 , provides as follows:

7 Where, in any trial or other proceeding,criminal or civil, it is intended by theprosecution or the defence, or by any party, toexamine as witnesses professional or otherexperts entitled according to the law orpractice to give opinion evidence, not morethan five of such witnesses may be called oneither side without the leave of the court orjudge or person presiding. 7 Lorsque, dans un procès ou autre procédurepénale ou civile, le poursuivant ou la défense,ou toute autre partie, se propose d’interrogercomme témoins des experts professionnels ouautres autorisés par la loi ou la pratique àrendre des témoignages d’opinion, il ne peutêtre appelé plus de cinq de ces témoins dechaque côté sans la permission du tribunal,du juge ou de la personne qui préside. [20] Crown counsel maintained it was necessary to call the numerous physicians who had examined and treatedKennedy Corrigan or who had been consulted regarding her treatment.

The prosecutor suggested it was probably not necessary to makean application under s. 7 of the CEA because no more than five experts were being called to testify on any single issue. The Crown’sposition in this regard was undoubtedly a reference to the state of the law in New Brunswick at the time, arising out of this Court’sdecision in R. v. Higgins (1979), (NB CA), 28 N.B.R. (2d) 20, [1979] N.B.J. No. 277 (C.A.) (QL), leave to appeal toS.C.C. refused, 29 N.B.R. (2d) 450.

In a decision dated February 18, 2016 on the voir dire, the trial judge did not specifically rule on theCrown’s application for leave to call more than five expert witnesses, resolving the matter as follows: There is no reason to make any order with regard to the experts, because I accept that there are five or less experts being called withregard to each of the issues before the Court. [21] At trial, the prosecution called a total of 12 witnesses to give opinion evidence.

Although all 12 would be askedtheir opinion regarding the severity of Kennedy’s injuries and eight of them would opine regarding the mechanism of death, no furtherapplication was made under s. 7 of the CEA. On behalf of Mr. Turpin, defence counsel called as expert witnesses Drs. Chiasson andHalliday, whom the police had consulted in 2006. [22] Following a lengthy trial, the jury found Mr. Turpin guilty of second degree murder. The jury declined to makeany recommendation with respect to the number of years Mr. Turpin would have to serve before being eligible for release on parole.

Inthe end, the trial judge sentenced him to life imprisonment without eligibility for parole until he served at least 10 years. The judge alsomade ancillary orders and ordered Mr. Turpin to pay a victim surcharge. [23] Mr. Turpin appeals his conviction and the Crown seeks leave to cross-appeal the period of parole ineligibility.In an Amended Notice of Appeal, Mr. Turpin raises three grounds.

He claims the trial judge erred in law in her “treatment of expertevidence,” “in failing to properly instruct the jury on accident,” and “in failing to instruct on the possibility of a verdict of manslaughter.”In a further amendment, Mr. Turpin also alleges “the jury’s verdict of guilty of second degree murder was an unreasonable verdict.” [24] The appeal and cross-appeal were originally argued before a three-member Panel. Following the hearing, itbecame apparent one of the issues invited a reconsideration of the

interpretation given to s. 7 of the CEA in Higgins. As a result, onbehalf of the Panel, I ordered a re-hearing before a five-member bench, the composition of which would include the three judges whohad initially heard the matter. II. Analysis A. Did the trial judge err in her “treatment” of expert evidence? [25] In order to admit expert evidence, it must be relevant, necessary and reliable: R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 (QL), at pp. 20-25. These conditions must also be “measured against the counterweightsof consumption of time, prejudice and confusion”: R. v.

J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. The trial judge serves asgatekeeper to ensure “the benefits in admitting the evidence outweigh any potential harm to the trial process”: R. v. Bingley, 2017 SCC12, [2017] 1 S.C.R. 170, at para.

Section 7 of the CEA puts a further restriction on expert evidence by limiting to five the number ofexpert witnesses that may be called by either the Crown or defence without the leave of the court. Higgins says that means five per issue;other courts say five means five.

[26] Like this one, Higgins also involved an appeal against a second degree murder conviction. One of the groundsof appeal alleged the trial judge erred in law in allowing the Crown to call more than five experts to give opinion evidence without leaveof the court. Limerick J.A. gave short shrift to that ground. He simply stated: There is no merit in the ground that the trial judge allowed more than five expert witnesses to be called allegedly contrary to s. 7 of theCanada Evidence Act. I would apply the reasoning of the Supreme Court of Canada in Fagnan v.

Ure et al., (SCC), 13D.L.R. (2d) 273, wherein it was held a similar enactment only restricted the number of witnesses who might testify on each issue raisedand not to all the issues raised at the trial. In the case before us each of the seven experts called as witnesses were experts in a differentfield of expertise and were called to prove different issues. I am further of the opinion that the provision was enacted to prevent the abuse of the right to introduce expert testimony.

Without such aprovision, a party could call any number of experts whom the court could not refuse to hear if their testimony was relevant, withoutleaving itself open to an allegation of wrongly rejecting evidence. The mere fact that the court allows a sixth or subsequent expertwitness to be sworn is all the approval that is required of the trial judge.

I can find nothing in the Canada Evidence Act requiring aformal preliminary application to be made to the judge as to the number of expert witnesses that may be called. [paras. 11-12] [27] In sum, although s. 7 of the CEA provides that “not more than five [expert] witnesses may be called on eitherside without the leave of the court,” Higgins stands for the following two propositions: (1) no more than five means no more than fiveper issue; and (2) no prior permission is required before calling more than five expert witnesses, even if on a single issue. [28] This aspect of Higgins has only ever been applied once in our Court.

In R. v. Eatman (P.L.) (1999), (NB CA), 222 N.B.R. (2d) 120, [1999] N.B.J. No. 554 (C.A.) (QL), also a second degree murder case, the Court quoted thetwo paragraphs on point from Higgins and held that, since this reflected the law in New Brunswick at the time of trial, it would be unfair“to challenge the

interpretation of Higgins and entertain the idea of finding reversible error on this point” (para. 14). It appears that,unlike the present case, the Court was not formally invited to reconsider its

interpretation of s. 7 of the CEA. [29] Higgins’

interpretation of s. 7 of the CEA has apparently only been considered in three cases in other provinces;however, its reasoning has not been unequivocally adopted. [30] In R. v. Morin, [1991] O.J. No. 2528 (Ct. J. (Gen. Div.)) (QL), Donnelly J. simply noted the case, whilegranting the Crown leave to call more than five experts upon finding that “[t]his is not a case of mounting an overwhelming barrage ofscientific witnesses.” [31] In R. v. Noyes, [1991] B.C.J. No. 3091 (C.A.) (QL), over the course of a lengthy trial, a number of expertwitnesses were called, including eight psychiatrists.

As the eighth expert witness was being called, the defence objected on the ground itexceeded the limit permitted by s. 7 of the CEA. Only then was it noticed that the number of experts who could be called to testify hadalready been exceeded by two, at which point the trial judge ruled he would have granted leave had it been sought previously. Inaddition, the judge allowed the further expert to be called. On appeal, the Court held that it was within the judge’s general power andjurisdiction to grant leave retroactively.

Regarding Higgins, the Court noted that, “while it was not necessary to rely on it,” Limerick J.A.had “made it clear that by the mere giving of the evidence in the witness stand the trial judge would be deemed to have given therequired permission” (para. 26) (emphasis added). [32] Finally, in Sam v. British Columbia, 2016 BCSC 86, [2016] B.C.J. No. 87 (QL), the rationale for theinterpretation of s. 7 of the CEA given in Higgins was rejected. Faced with an application under s. 7 for leave to call more than fiveexpert witnesses, Bracken J. observed that cases that have considered the provision are few in number.

He noted that “[t]here seems to begreater consensus that the Act restricts the number of experts to five per party,” rather than five per issue (para. 4). As he explains, thismore restrictive

interpretation is consistent with there being a provision that allows for leave. Bracken J. found only five cases thatapplied the more generous

interpretation of five experts per issue: three from Alberta (including Fagnan v. Ure et al., (SCC), [1958] S.C.R. 377, [1958] S.C.J. No. 26 (QL), the case upon which Higgins relied); and two from New Brunswick: Higgins andEatman. [33] The first case from Alberta was In re Scamen et al. v. Canadian Northern R. Co., [1912] A.J. No. 21 (S.C.)(QL). In brief reasons for decision, Harvey C.J.A., for the Court en banc, did not identify the provision he was interpreting, although it islikely an earlier version of the provision considered in Fagnan.

Chief Justice Harvey held that the provision limits to three the number ofwitnesses entitled to give opinion evidence on any particular fact in issue. He did so because the provision was said to relate to opinionevidence generally and was not limited to only expert opinion. Harvey C.J. observed that, in many cases, lay witnesses may be called

upon to give opinion evidence. He concluded that, if the

section were interpreted literally, it would mean that only three witnesses whoexpress an opinion, including lay witnesses, would be allowed to testify in a trial. As a result, he interpreted the provision as limiting tothree the number of witnesses called to prove any particular fact. [34] In Fagnan, plaintiff’s counsel called a witness in reply to give opinion evidence. Counsel for the defendantobjected on the ground the plaintiff had already called and examined three other witnesses entitled to give opinion evidence.

Theobjection was founded on s. 10 of the Alberta Evidence Act, R.S.A. 1942, c. 106, which read as follows: “Where it is intended by a partyto examine as witnesses persons entitled according to the law or practice to give opinion evidence not more than three such witnessesmay be called upon by either side.” The trial judge overruled the objection.

In the Supreme Court of Canada, Cartwright J. (as he thenwas) concluded that in fact only two witnesses had previously given opinion evidence within the meaning of s. 10; however, hecontinued by applying the words of Harvey C.J.A. in Scamen, which related to effectively the same provision. He adopted the

summaryin the headnote: Upon the proper

interpretation of

section 10 of the Alberta Evidence Act, 1910, 2nd sess., ch. 3, in the event of a trial or inquiryinvolving several facts, upon which opinion evidence may be given, a party is entitled to call three witnesses to give such evidence uponeach of such facts, and he is not limited to three of such witnesses for the whole trial. [p. 382] [35] Cartwright J. applied the rule of construction explained in Ex parte Campbell; In re Cathcart [(1870), L.R. 5Ch. 703 at 706], whereby, if words of a statute have received a judicial construction and the Legislature has repeated them withoutalteration in a subsequent statute, the Legislature must be taken to have used them according to the meaning the court had given them.Thus, he concluded the

interpretation in Scamen prevailed. [36] The third Alberta case to which Bracken J. referred is Hamilton v. Brusnyk and Demchuk, (AB KB), [1960] A.J. No. 68 (S.C.) (QL). Even though by then the relevant provision had been amended to add the words “withoutleave of the court, which shall be applied for before the examination of any such witness,” the trial judge in that case appears to haveconsidered himself bound by Fagnan.

He ruled that counsel “was under no obligation to ask the Court at any stage for permission to callmore than three opinion witnesses unless he intended to call more than three upon each ‘fact’ as Harvey, C.J. put it or upon each‘subject’, as Cartwright, J. expressed it, involved in the action” (para. 41). [37] As for Higgins and Eatman, Bracken J. noted “the New Brunswick appeal court paid no attention to theessential difference between Fagnan’s context (Alberta’s then statutory provision with no room for leave) and the context of otherstatutes -- Canada, Ontario, Manitoba and New Brunswick’s own civil evidence statute among them -- which contained provisionsallowing leave to apply to call additional experts” (para. 9). [38] Bracken J. then reviewed a number of cases where a more restrictive approach had been taken to s. 7 of theCEA or similar provisions, including: Altana Pharma Inc. v.

Novopharm Ltd., 2007 FC 1095, [2007] F.C.J. No. 1421 (QL); Burgess(Litigation guardian of) v. Wu, [2005] O.J. No. 929 (Sup. Ct. J.) (QL); Bank of America Canada v. Mutual Trust Co., (ON SC), [1998] O.J. No. 1524 (Ct. J. (Gen. Div.)) (QL); Buttrum v. Udell, [1925] O.J. No. 16 (C.A.) (QL); and B.C. PeaGrowers Ltd. v. City of Portage La Prairie, [1964] M.J. No. 48 (C.A.) (QL). These cases essentially conclude that Fagnan is onlybinding as to the

interpretation of Alberta’s legislation, as it then read. For a detailed review of the cases holding this, see Eli Lilly andCompany. v. Apotex Inc., 2007 FC 1041, [2007] F.C.J. No. 1367 (QL), per Hughes J. at paras. 12-27. [39] In this regard, reference can also be made to Rex. v. Barrs, [1946] A.J. No. 39 (C.A.) (QL), in which a five-member panel of the Appellate Division of the Supreme Court of Alberta considered the limits on the number of expert witnesses unders. 7 of the CEA.

Harvey C.J.A., for the Court, noted that s. 7 “is quite different” from that considered in Scamen because the formermakes provision for leave to call more than five expert witnesses, whereas the latter does not. He concluded Scamen “can have noapplication to [the

interpretation of s. 7]” (para. 27). [40] Returning to Sam, I note that Bracken J. continued his analysis with a reference to Hamish C. Stewart inHalsbury’s Laws of Canada (online), Evidence (2014 Reissue), “Opinion Evidence: Expert Opinion: Procedural Aspects” (VI.3.(2)(b))at HEV-155 “Statutory Limit on Number of Experts”, in which he says that “the ‘per issue’

interpretation ‘should not be followed whenthe statute permits the court to grant leave’” (para. 17). Incidentally, this is also the view of S.C. Hill, D.M. Tanovich and L.P. Strezos,McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2013) (loose-leaf updated 2019, release 2), at§12:30.40.50, who propose that “[w]hile precedent exists suggesting the five-expert-witness limit is properly applicable only to a singleissue within the trial, the better view is that the limitation applies to the entirety of a party’s case.”

[ 41 ] With all due respect, I align myself with the views expressed on this point in Halsbury’s Laws of Canada and in McWilliams’ Canadian Criminal Evidence . “The first and cardinal principle of statutory

interpretation is that one must look to the plain words of the provision. Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 44”: R. v. D.A.I. , 2012 SCC 5 , [2012] 1 S.C.R. 149 , at para. 26 . As many others have noted, the Alberta legislation in question in Fagnan did not provide for a court to allow more than three witnesses to give opinion evidence. In those circumstances, the principles of statutory

interpretation required the court to look for the intent of the legislator in properly construing the provision. In my view, the construction of the Alberta legislative disposition cannot be said to apply where, as in s. 7 of the CEA and similar provincial dispositions, provision is expressly made to allow for more expert witnesses upon obtaining leave of the court. The intent of Parliament in enacting s. 7 is as clear as the provision itself: not more than five witnesses called to give opinion evidence may be examined by any party to a trial without leave of the presiding judge. [ 42 ] This restrictive

interpretation of s. 7 is also consistent with the principles governing the admissibility of expert evidence in criminal law matters. Concerns about the proliferation of experts in Canadian courts and the risk that unnecessary or unreliable expert evidence will confuse and mislead jurors led the Supreme Court of Canada to reformulate the criteria for the admissibility of such evidence. In Mohan , Sopinka J. explained: There is a danger that expert evidence will be misused and will distort the fact-finding process.

Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [p. 21] [ 43 ] In other words, the danger is “that the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluate it”: White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 S.C.R. 182 , per Cromwell J. for the Court, at para. 17.

He added: The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury “will be unable to make an effective and critical assessment of the evidence: R. v. Abbey , 2009 ONCA 624 , 97 O.R. (3d) 330 , at para. 90 , leave to appeal refused, [2010] 2 S.C.R. v. The trier of fact must be able to use its “informed judgment”, not simply decide on the basis of an “act of faith” in the expert’s opinion: J.-L.J. , at para. 56 .

The risk of “attornment to the opinion of the expert” is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D. , at para. 54. The cases address a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination ( D.D. , at para. 55); the risk of admitting “junk science” ( J.-L.J. , at para. 25 ); and the risk that a “contest of experts” distracts rather than assists the trier of fact ( Mohan , at p. 24).

Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan , at p. 21; D.D. , at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27 , [2011] 2 S.C.R. 387 , at para. 76 . [para. 18] [ 44 ] Mohan stands for the proposition that a party seeking to introduce expert evidence must establish that the evidence is: (1) relevant; (2) necessary to assist the trier of fact; (3) not in violation of any exclusionary rule; and (4) adduced by a properly qualified expert: p. 20.

Under the relevance factor, Mohan explains that a court does not only determine relevance in the sense of the evidence tending to establish a fact in issue, but also undertakes a cost benefit analysis by looking at the value of the evidence and what it costs in terms of its impact on the trial process.

Where the probative value of the evidence is overborne by its prejudicial effect, or where the evidence will involve an inordinate amount of time which is not commensurate with its value, or where the evidence is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability, such evidence may be excluded: p. 20-21. [ 45 ] The Mohan criteria have since been reformulated such that, in determining the admissibility of expert evidence, a judge proceeds in two stages. This analytical framework was proposed in R. v. Abbey , 2009 ONCA 624 , [2009] O.J.

No. 3534 (QL) , and was adopted with minor adjustments in White Burgess . [ 46 ] “At the first step, the proponent of the evidence must establish the threshold requirements of admissibility” by demonstrating that all four Mohan factors are met: White Burgess , at para. 23.

If the opinion is based on novel or contested science or on science used for a novel purpose, the proponent also needs to establish the reliability of the underlying science for that purpose. “Relevance at this threshold stage refers to logical relevance”: White Burgess , at para. 23. [ 47 ] The second stage of the framework requires a judge to balance “the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: White Burgess , at para. 24.

This stage is considered to be a “discretionary gatekeeping step.” Cromwell J. explained it as follows: The required balancing exercise has been described in various ways. In Mohan , Sopinka J. spoke of the “reliability versus effect factor”

(p. 21), while in J.-L.J. , Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para 47.

Doherty J.A. summed it up well in Abbey , stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76. [para. 24] [ 48 ] Binnie J., for the Court, explained in J.-L.J. that a trial judge must “take seriously the role of ‘gatekeeper’” (para. 28).

He continued: “[t]he admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility” (para. 28). [ 49 ] In my view, the analytical framework for determining the admissibility of expert evidence works in concert with the requirements of s. 7 of the CEA .

The general rule is no more than five experts per party per proceeding; but, where the party proposing to call additional experts can demonstrate that more than five experts are necessary to assist the trier of fact in making a relevant determination, a trial judge must consider the leave application as part of his or her gatekeeping function.

This necessarily requires that any leave to call more than five experts be obtained before the sixth such witness is called, and similarly for any additional expert witness. [ 50 ] In the present case, it appears the trial judge did nothing more than review the qualifications of proposed experts and did not, as required, balance reliability versus effect. In my view, the absence of any objection from defence counsel likely lulled the trial judge into believing there was no case to be made that the prejudicial effect of the evidence outweighed its probative value.

Of course, defence counsel cannot be faulted for not raising the s. 7 limit each time an expert witness was called, since the trial judge, applying Higgins , had ruled this was not necessary since only five experts would be called on each issue. Both, however, fell into error because, in fact, more than five experts were called by the prosecution to address some of the critical issues of the case. Twelve witnesses called by the prosecution were qualified to offer opinions on the severity, or the severity and significance, of the injuries suffered by Kennedy Corrigan.

Eight of the prosecution’s experts testified on the potential mechanisms of these injuries; that is, how Kennedy may have sustained the injuries. They were as follows: Name of Expert Qualification at trial Dr. Heidi King Declared an expert radiologist entitled to give her opinion with regard to injuries observed through diagnostic imaging and concerning the severity of the injuries. Dr.

Jane Findlater Declared an expert in emergency room medicine entitled to give her opinion with respect to the diagnosis of injuries sustained, the significance and severity of those injuries and any recommended treatment. (In the course of her testimony, she opined on the mechanism of the injury by stating it would be unusual for a two-year-old who fell in a bathtub to suffer this type of injury.) Dr.

Ramaiyer Krishnaswamy Declared an expert in pediatric medicine and entitled to give his opinion with regard to the diagnosis of injuries sustained by children, the significance of the severity of the injuries and any potential mechanism of those injuries and of the recommended treatment. Dr. Brian McManus Declared an expert in pediatric intensive care and entitled to give his opinion with respect to the diagnosis of injuries sustained, the significance and severity of those injuries, any potential mechanisms of those injuries and any recommended treatment. Dr.

Christian Soder Declared an expert in pediatric intensive care, and as such entitled to give his opinion with regard to the diagnosis of injuries sustained, the significance and severity of the injuries, potential mechanisms of those injuries as well as any treatment. Dr. Robert LaRoche Declared an expert in ophthalmology, entitled to give his opinion in relation to injuries observed and the severity or significance of those injuries. Dr.

Sean Christie Declared an expert in neurosurgery and able to express his opinion with respect to the injuries suffered by Kennedy Corrigan, the significance and severity of those injuries, the prognosis and possible recovery from those injuries as well as any potential mechanism of those injuries. Dr. Kathleen O’Brien Declared an expert in radiology and entitled to give her opinion with respect to the

interpretation, the diagnostic imaging of the injuries of Kennedy Corrigan and the significance and severity of those injuries.

Dr. Mathias Schmidt Declared an expert in neuroradiology and entitled to give his opinion with respect to the

interpretation of diagnostic imaging and on the injuries suffered by Kennedy Corrigan and the significance and severity of those injuries as well as any potential mechanisms of such injuries. Dr. Kathryn Morrison Declared an expert in pediatric medicine entitled to give her opinion with respect to the diagnoses of injuries sustained, the significance and/or the severity of such injuries as well as the potential mechanisms of those injuries. Dr.

Robert Macaulay Declared an expert in neuropathology entitled to give his opinion with respect to the cause of death, injuries sustained, and the severity of the injuries sustained, as well as the potential mechanisms as they relate to such injuries. Dr. Marnie Wood Declared an expert in forensic pathology and medical examinations entitled to give her opinion with regard to cause of death, injuries sustained, the significance and/or severity of such injuries, and any potential mechanisms of such injuries. [ 51 ] Thus, even though the law in New Brunswick as stated in Higgins may have been applied, counsel for Mr.

Turpin should have objected when more than five expert witnesses were called to address these “issues.” To state that counsel have an important role to assist trial judges in the exercise of their gatekeeping function is an understatement. Not only should defence counsel be vigilant and advance proper objections, but Crown counsel also must assist a trial judge in this respect.

In the present case, in her decision on the Crown’s application for leave to call more than five experts, the trial judge noted it was “the position of the Crown counsel that she is not calling more than five experts for any one issue.” Moreover, the judge added, “the Crown suggests it was probably not necessary to make the application under

section 7 of the Canada Evidence Act because of her position that she is not calling more than five experts on one issue.” In those circumstances, and on account of Higgins , it is not surprising the trial judge ruled there was “no reason to make any order with regard to the experts, because [she accepted] that there are five or less experts being called with regard to each of the issues before the Court.” As it turned out, the judge was misled since this was in fact not the case. [ 52 ] I pause here to note that no one raised the question of the meaning of the word “issue” as used in Higgins or of the term “such facts” from Fagnan .

No one asked whether “issue” meant one of the elements of the offence, or whether it had some other meaning. In light of my finding that neither Higgins nor Fagnan should have any application in this case because five means five, this question is now irrelevant. [ 53 ] More than five experts were called to be examined by the Crown and, in my respectful view, there was a need to obtain leave before a sixth or more could be allowed to testify.

To comply with s. 7 of the CEA , and as part of her gatekeeping function, it was necessary for the trial judge to consider whether leave to call more than five witnesses should be granted. Even if Higgins had been held to be good law, and even had the term “issue” been given a broad meaning, the fact remains that more than five expert witnesses were called by the Crown to establish either the severity or “severity and significance” of the injuries, or the mechanism by which those injuries might have occurred.

Although many of the experts called were treating physicians and could testify to their observations and their actions, it did not follow that it was necessary to extract from them opinions on critical elements of the offence or aspects of the case. [ 54 ] In my view, even if the defence had consented to leave being granted, it would nevertheless have been necessary for the trial judge to consider the circumstances and to determine whether leave should be granted as part of her gatekeeper function.

This was not done and constitutes an error in law. [ 55 ] Having found an error of law in the application of s. 7 of the CEA does not, however, end the analysis. If this were a case like Regina v. Vincent , [1963] M.J. No. 12 (C.A.) (QL) , or like Meunier c. R. , 2014 QCCA 1681 , [2014] J.Q. n o 9853 (QL) , this ground of appeal might be dismissed. In the former, the Court found that the “opinion evidence of experts played but a minor and not very significant part” (para. 2), whereas in the latter, the trial judge could be said to have implicitly granted the required leave.

The present case has none of those features. [ 56 ] Nevertheless, before Mr. Turpin’s appeal can be successful on this ground, we would have to be satisfied that this is not a case where, notwithstanding the error of law, the appeal should be dismissed because “no substantial wrong or miscarriage of justice has occurred” (s. 686(1)(b)(iii) of the Criminal Code ). This might be the case if we were to find that the error was insignificant because, had the trial judge performed her gatekeeper function and given proper consideration to s. 7 of the CEA , she would necessarily have granted the required leave.

In my view though, this is not a case where we can come to that conclusion.

[57] In R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, McLachlin C.J.C., though dissenting on the merits withL’Heureux-Dubé and Gonthier, JJ., observed that “[d]eterminations of relevance and necessity, as well as the assessment of whether theprejudicial effect of the evidence outweighs its probative value, must be made within the factual context of the trial” (para. 12). Shenoted that the relevance inquiry as part of the Mohan criteria “is very much a function of the other evidence and issues in a case” (atpara. 12 quoting Sopinka J. in R. v. Morin, (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J.

No. 80 (QL), at p. 370). Then sheadopted the following statement from R. v. F. (D.S.), (ON CA), [1999] O.J.

No. 688 (C.A.) (QL): The trial judge has the advantage of hearing the evidence in issue, observing the jury and being able to appreciate the dynamics of theparticular trial.... [T]he trial judge may also be in a better position to determine what may come within the normal experience of theaverage juror in the community in which the case is being tried. [D.D., at para. 12] [58] McLachlin C.J.C. added that “the trial judge may be in the best position to determine whether the probativevalue of the evidence is outweighed by its prejudicial effect on the trial” because “[t]he trial judge knows the issues, the evidence andthe jury and is charged with the ultimate responsibility of running a fair trial” (para. 12).

As a result, “appellate courts owe deference todecisions of trial judges to admit or reject expert evidence” (para. 13). [59] The majority in D.D. also considered that “some degree of deference is owed to the trial judge’s discretionarydetermination of whether the Mohan requirements have been met on the facts of a particular case” (para. 47, per Major J.). It was only onthe merits where the opinions of the majority and the minority differed. [60] In my view, the same applies to a determination made to grant or deny leave under s. 7 of the CEA.

A trialjudge should assess the question as part of her or his gatekeeping role regarding expert witnesses. In doing so, the judge must consider, inaddition to the factors to be considered as part of the Mohan/White Burgess analysis, factors such as those Ferguson J. listed in Burgess,which Bracken J. adopted in Sam, at para. 19: A decision on motions like this will necessarily be fact driven and consequently it is not possible to identify a fixed list of relevantfactors. However, I conclude the following are relevant factors in this case taking into account the caselaw and the circumstances of thiscase: a.

Whether the opposing party objects to leave being granted. While I can imagine situations where both parties are “overkilling”the evidence, I think that if both parties have agreed on certain numbers of experts or on filing reports from some experts in addition tocalling others then this is a significant factor. While there is certainly public expense involved, in civil cases the parties bear a verysubstantial portion of the costs of trial which is the crux of the rule. I believe contested motions on the issue of granting leave are rare. Ithink that where there is no opposition then leave is usually granted. b.

The number of expert subjects in issue. c. The number of experts each side proposes to have opine on each subject. d. How many experts are customarily called in cases with similar issues? e. Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than theopposing party? f. Is it necessary to call more than three experts in order to adduce evidence on the issues in dispute? g. How much duplication is there in the proposed opinions of different experts? h.

Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial? [Burgess, at

para. 35] [61] As noted, circumstances may dictate other factors. As is obvious from the list, there is clearly an overlapbetween the s. 7 analysis and the trial judge’s gatekeeping function under Mohan/White Burgess.

This is why, in my view, the s. 7determination whether or not to grant a party leave to examine more than five experts is best undertaken as part of the gatekeeping role.As gatekeeper, the judge has an obligation to determine whether proposed evidence is likely to assist the jury in its fact-finding missionor more likely to confuse and confound them, and whether the jury is likely to be overwhelmed by the evidence as opposed to keeping anopen mind and objectively assess the worth of the evidence: see Mohan at p. 21, quoting Moldaver J. (as he then was) in R. v. Melaragni,[1992] O.J. No. 4176 (Gen. Div.) (QL).

Obviously, the number of expert witnesses to be called, either in total or regarding any one singleissue or fact, is something that must be considered in the mix. Since the trial judge is in the best position to make this determination, itfollows that it would not be prudent for us at this point to attempt to determine whether or not the required leave should have beengranted. Suffice it to say that some of the factors certainly militate against leave being granted in the present case. [62] For these reasons, on the basis of the first ground of appeal, the appeal should be allowed.

This renders itunnecessary to consider the other bases upon which Mr. Turpin argues the judge erred in her treatment of the expert evidence. Forexample, he alleges the judge erred: in not assisting the jury to understand the different areas of expertise of the various experts;by not exercising a continuing gatekeeper function as required by R. v.

Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, where it isstated that “[i]t is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initialruling” but it is also necessary for the trial judge to “do his or her best to ensure that, throughout the expert’s testimony, thetestimony remains within the proper boundaries of expert evidence” (para. 46);in not ensuring that the experts offered opinions based only on sound scientific principles;in not guarding against “confirmation bias”;in allowing the use of confusing or misleading language by the experts, such as “consistent with” or “not consistent with,” asthough it necessarily meant caused by or not caused by (see for example R. v.

France, 2017 ONSC 2040, [2017] O.J. No. 1875(QL), at para. 62);in allowing experts to “over-reach” in their testimony by testifying outside the scope of their expertise or by stating opinion as fact;by not explaining to the jury that the expert’s role was to be impartial and not advocate for any side;by not identifying evidence that did not rule out that an accidental fall could have caused the injuries, including: o Dr. LaRoche’s testimony that “you could encounter this kind of hemorrhaging with all kinds of situations”; o Dr.

Macaulay’s testimony that there was “nothing to say this patient couldn’t have two independent pathology processes going on,something that caused infarction and something that caused the traumatic axonal injury”; o Dr. Soder’s testimony that “nothing is absolutely impossible”; and o Dr.

Chiasson’s testimony that it would be rare, but nothing should be excluded. [63] It is also not necessary to address the two grounds of appeal alleging error in the trial judge’s instructions onaccident and on the possibility of a verdict of manslaughter. [64] While some of these issues might have been worthy of consideration were it not for the outcome of the firstground of appeal, I note that defence counsel at trial had not raised any objection to the judge’s charge.

The failure to object does notmake a jury charge error free, but such failure is nevertheless informative since counsel have a duty to assist the court in formulating aproper charge. I repeat a passage from an Ontario case this Court adopted in Prosser v. R., 2015 NBCA 7, 430 N.B.R. (2d) 154, which Ifind applicable in the present case: (vi) In view of the position on appeal as opposed to the position adopted by counsel at trial, I find it instructive to reproduce some of thecomments of Doherty J.A. in R. v. Polimac, 2010 ONCA 346, [2010] O.J.

No. 1983 (QL), at paragraphs 96-97, leave to appeal refused[2010] S.C.C.A. No. 263 (QL): [...] 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, 2009SCC 4 , [2009] 1 S.C.R. 104 at para. 49, takes on added significance where counsel has been given a full copy of the proposedinstructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge.

In thosecircumstances, counsel’s position at trial becomes very important when evaluating complaints, raised for the first time on appeal, thatmatters crucial to the defence were not properly addressed by the trial judge in her instructions.

Counsel’s position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal errorremains 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 principlesfor the jury or offer abstract verbalizations of those principles.

Jury instructions about the evidence must ensure the following: first, thatthe jury understands how the evidence can and cannot be used in the context of the particular case; and second, that the jury understandsthe positions taken by the defence and Crown with respect to that evidence. Counsel’s considered position after examining the proposedinstruction sheds valuable light on whether that proposed instruction met those two goals.

This instruction did. [paras. 96-97, Polimac][para. 33] [65] While it may be unnecessary to address those other grounds of appeal relating to the judge’s charge, such is notthe case for the one questioning the reasonableness of the verdict. If the guilty verdict was unreasonable within the meaning of s.686(1)(a)(

i) of the Criminal Code, Mr. Turpin is entitled to be acquitted. If, on the other hand, it was not reasonable for the jury to havefound him guilty of second degree murder, but, upon the evidence, a conviction for manslaughter could stand as a reasonable outcome,Mr. Turpin is entitled to be acquitted of second degree murder and to a new trial on the charge of manslaughter: R. v. Robinson, 2017ONCA 645, [2017] O.J. No. 4142 (QL), at para. 51, per Doherty J.A. B.

Was the jury’s verdict of guilty of second degree murder an unreasonable verdict? [66] This Court recently had occasion to discuss the reasonability of a verdict. To explain the applicable standard, Ican do no better than adopt the words of Drapeau C.J.N.B. (as he then was) in Oland v. R., 2016 NBCA 58, [2016] N.B.J. No 288 (QL): In R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51 (QL), the Court held an appeal could be allowed andan acquittal entered pursuant to s. 686(1)(a)(

i) if, and only if twelve properly instructed jurors, acting judicially, could not reasonablyhave come to the verdict at issue. In a subsequent decision, R. v. Biniaris, the Supreme Court clarified that standard by declaring itrequired appellate courts: (1) “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (para. 36); and (2)to carry out this process “through the lens of judicial experience which serves as an additional protection against an unwarrantedconviction” (para. 40). While the latter requirement confirms the test for appellate intervention under s. 686(1)(a)(

i) is “different than theone a trial judge must apply on a directed verdict application” (see R. v. R. (J.S.), 2012 ONCA 568, [2012] O.J. No. 4063 (QL), at para.69), it does not follow that the defence’s considered decision to abstain from requesting a directed verdict of acquittal is meaningless. Iwill return to this topic in short order. More recently, in R. v. W.H., the Supreme Court provides further helpful insights into the review process envisaged by s. 686(1)(a)(i): On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence.

A positive answer to the questionof whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.

Rather,the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) andconsider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39.Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, thereviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusionconflicts with the bulk of judicial experience: Biniaris, at para. 40. [para. 28] My understanding of the governing standard is summarized in Penney, Rondinelli and Stribopoulos, Criminal Procedure in Canada(Markham, Ont.: LexisNexis Canada Inc., 2011) at pp. 744-745: The test to be applied by the appellate court under section 686(1)(a)(

i) of the Code has been established by the Supreme Court of Canadaas whether “the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” The test is equallyapplicable to a judge sitting at trial without a jury. Where the verdict rests primarily on circumstantial evidence, Justice Doherty noted inR. v.

Mars that “the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonableconclusion available on the totality of the evidence?” In considering whether a verdict is unreasonable, an appellate court is required toanalyze and to some extent, reweigh the evidence adduced at trial. The court will do so through the “lens of judicial experience”, whichserves as an additional safeguard against unsafe convictions. The burden on the appellant in establishing an unreasonable verdict hasbeen described as “high” and “difficult”.

Practically speaking, “at the end of the day this is a judgment call [by the court] and not aprecise science. A subjective element is invariably involved in the global assessment of the case.” [para. 18.6, Criminal Procedure inCanada] [paras. 25-27]

[ 67 ] For the reasons set out below, when I apply this test to the present case, I conclude there was insufficient evidence on the requisite intent upon which a properly instructed jury, acting judicially, could reasonably have convicted Mr. Turpin of murder. [ 68 ] The prosecution’s theory in this case was that Kennedy Corrigan did not die from a fall in the bath because the injuries suffered were too serious to have been caused by such an event. According to the prosecution, Mr. Turpin assaulted Kennedy and the assault resulted in her death.

At the very least, this would amount to manslaughter; however, the prosecution goes further and argues that, from the extent of the injuries Kennedy suffered, it was open for the jury to infer that, when he assaulted Kennedy, Mr. Turpin must have had the requisite intent for murder; that is, he must have either meant to kill her or to cause her bodily harm he knew was likely to cause her death and was reckless whether death ensued or not.

By its verdict, the jury necessarily accepted the prosecution’s theory for there was no other path to a murder conviction. [ 69 ] To analyze the jury’s verdict through the lens of reasonableness as that term is understood for the purposes of s. 686(1) (a)(

i) of the Criminal Code , it is necessary for us to review the evidence in three steps: 1) Was there evidence upon which the jury could reasonably conclude Kennedy Corrigan did not die as a result of a fall in the bathtub? 2) Was there evidence upon which the jury could reasonably conclude Mr. Turpin assaulted Kennedy Corrigan and that the assault caused her death, in the sense that it contributed significantly to her death? 3) Was there evidence upon which the jury could reasonably conclude Mr.

Turpin meant to kill Kennedy Corrigan or to cause her bodily harm he knew was likely to cause her death and was reckless whether death ensued or not? [ 70 ] In Oland , having decided to order a new trial upon finding an error in the judge’s charge to the jury, the Court did not provide a “detailed exposition of the evidence and inferences the jury could have reasonably relied upon in reaching its verdict” (para. 32).

In his reasons, Drapeau C.J.N.B. (as he then was) set out several decisions that support this approach and then proceeded to offer only “general observations on the issue of verdict reasonableness” (para. 33). Because I come to the conclusion that the first two questions posed above must be answered in the affirmative, I will take the same approach. The same does not apply to the third question, which I conclude should be answered in the negative. [ 71 ] Addressing the first question , it was undisputed that Kennedy Corrigan suffered a severe brain injury that caused her death.

She had a bruise on the back of her head and no other visible injuries, but something happened to her brain that caused it to hemorrhage, in turn causing it to be deprived of oxygen and eventually leading to death. Thus, there was ample evidence for the jury to reach a conclusion on the cause of death. [ 72 ] The overwhelming weight of the expert medical evidence was to the effect that children do not usually die as a result of a fall from their own height; however, some of the evidence was somewhat equivocal.

I paraphrase below some of the testimony that arguably cannot be said to be definitive on the question of whether Kennedy’s injuries could have been caused by a fall in the bathtub. Admittedly, some of it is repetitious because the comments are taken from various experts.

Here is a sampling highlighting the equivocations: the injury was consistent with abuse; it would be very unusual for the injury to have resulted from a fall in the tub; it’s very unlikely she was shaken; most probable cause was non-accidental trauma; probably but not quite sure it was a single blow as opposed to shaking; possible non-accidental trauma; didn’t feel we had proved it beyond a shadow of a doubt ; if the child was struck; the most likely cause; extremely remote but nothing in medicine is considered impossible ; nothing is impossible ; unlikely to be the classic injuries that you observe in a shaken baby case; not a pattern of injuries I would expect from a fall; I still don’t know that I can say what happened to the child; may have been a non-accidental injury; unusual to have such extensive brain injury from a fall from one’s own height; not consistent with a short fall; unlikely to be shaken baby; in medicine you can never rule out anything ; nothing to say Kennedy couldn’t have two independent pathology processes going on , something that caused infarction and something that caused the traumatic axonal injury but most likely cardiorespiratory arrest at the time of the injury led to widespread hypoxic ischemic encephalopathy; injury in the brain stem exceeds what would be expected from a simple fall in a bathtub; possibility of non-accidental trauma cannot be excluded ; not consistent with a simple fall in the bathtub; fatalities from falls under ten feet are rare ; and, this is not a case of shaken baby. [ 73 ] It may be that the cumulative effect of the expert testimony led the jury to conclude that Kennedy did not die from a fall in the bathtub as described.

It may also be that, upon a proper exercise of the gatekeeper function for the admission of expert evidence, including the requirements of s. 7 of the CEA, a judge would limit this type of evidence in order to avoid simply overwhelming the jury with various equivocal opinions; however, for the purpose of answering the first question on the evidentiary record as it is, there still remain two unequivocal opinions tending to demonstrate it unlikely that Kennedy died from a fall in the bathtub.

[74] Ironically, one of the most unequivocal opinions was elicited in cross-examination by defence counsel. Dr.Morrison, who had been arguably equivocal in direct examination, on cross-examination stated: “[…]what was clear to me was that it didnot happen the way it was presented,” later adding, “I feel very strongly that it did not happen the way it was told to us, that somethingelse happened” and “children don’t die from falling from their own height.” In addition, Dr.

Wood candidly admitted: “[…] I am notsaying I know what happened to this infant” but she also stated, “[i]t is my opinion that the findings are not explained by a simple fallfrom a standing height of 34 inches.” This opinion was then repeated in cross-examination. Thus, there was evidence upon which thejury could reasonably conclude Kennedy Corrigan did not die as a result of a fall in the bathtub. [75] As for the second question, if the jury accepted that Kennedy did not die from a fall in the bathtub, I concludethere was then some evidence upon which it might reasonably conclude Mr.

Turpin assaulted Kennedy Corrigan and that the assaultcaused her death, in the sense that it contributed significantly to her death. That evidence includes Mr. Turpin’s after-the-fact statementsor conduct as an item of circumstantial evidence. While this evidence could only be used if other explanations for such statements orconduct were rejected, it remains that it was open to the jury, upon rejecting all other explanations, to use it to conclude Mr. Turpin liedbecause he had acted unlawfully.

Thus, it cannot be said there was no pathway for the jury to conclude the elements of manslaughter hadbeen established. [76] As for the third question, while a finding by the jury that Mr. Turpin was not truthful in his accounts of whathappened to Kennedy might be considered to infer he had acted unlawfully, this finding does not shed any light on Mr. Turpin’s state ofmind and therefore does not assist in the determination of his level of culpability. R. v. Rodgerson, 2014 ONCA 366, [2014] O.J. No.2232 (QL), aff’d 2015 SCC 38, [2015] 2 S.C.R. 760, is instructive.

In that case, after a night of drinking and taking drugs, the accusedand the victim had gone to the accused’s house where the victim was killed. When he realized she was dead, the accused decided to getrid of the body and clean the house. When the police eventually came to his house, the accused fled and, when apprehended, he lied tothe police by denying any involvement in the victim’s death and suggesting his roommate might have been involved. The accused wascharged with first degree murder on the theory he had murdered the victim in the course of a sexual assault. At trial, he claimed self-defence.

The jury convicted him of second degree murder. He appealed and was successful in having the verdict set aside and a new trialordered on a charge of second degree murder. The Ontario Court of Appeal held the trial judge had misdirected the jury on the use itcould make of the accused’s after-the-fact conduct because the jury might have understood that the accused’s flight from the police andhis lies were potentially probative of his state of mind at the time he killed the victim.

Doherty J.A. for the majority explained: I begin with the evidence of the appellant’s flight from the police and his false denials of any involvement in Ms. Young’s death, bothupon his arrest and in his later police interviews. That evidence was clearly relevant to certain issues at trial. For example, the flight andlies could be considered in assessing the self-defence claim: see Peavoy, at pp. 631-32. Evidence that the appellant fled the scene andlied to the police would support the inference that he had acted unlawfully when he caused Ms.

Young’s death and, more specifically,that he had not acted in self-defence. That same evidence could not, however, as a matter of common sense and human experience, shed any light on the appellant’s state ofmind when he unlawfully caused Ms. Young’s death. It cannot be said that the person who kills with the state of mind required formurder is more likely to flee and lie to the police than is the person who unlawfully kills without the state of mind required for murder.Several cases in this court have held exactly that: see R. v. Wiltse (1994), (ON CA), 19 O.R. (3d) 379 (C.A), at pp. 384-85; R. v.

Marinaro, (SCC), [1996] 1 S.C.R. 462, adopting dissent of Dubin C.J.O., (1994), (ONCA), 95 C.C.C. (3d) 74 (Ont. C.A.), at pp. 81-82; Peavoy, at pp. 630-31; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras.33-43. See also, R. v. Feng, 2012 BCCA 153, 319 B.C.A.C. 151, at paras. 33-39. The reasoning in those cases applies to the evidence ofthe appellant’s flight and lies to the police. [paras. 53-54] [77] The accused’s after-the-fact conduct of concealment and cleanup, however, was found to be relevant to thematter of intent. The Supreme Court agreed with this conclusion.

As for the conduct involving flight and lies, the Supreme Court notedthe Crown had conceded the trial judge had erred by instructing the jury it could consider Mr. Rodgerson’s flight from and lies to thepolice on the issue of intent. [78] In the present case, the trial judge did not caution the jury it could not use Mr. Turpin’s after-the-fact conductin determining Mr. Turpin’s state of mind when the unlawful act might have happened. In fact, the trial judge said just the contrary,instructing the jury that it should look at Mr.

Turpin’s “words and conduct before, at the time and after the unlawful act that causedKennedy Ann Corrigan’s death,” adding that all of it may shed light on Mr. Turpin’s intent. [79] Yet, the words of Doherty J.A. have equal application in this case: “It cannot be said that the person who killswith the state of mind required for murder is more likely to flee and lie to the police than is the person who unlawfully kills without thestate of mind required for murder.” [80] This is not to say that after-the-fact conduct can never be taken into account on the issue of the mental elementfor second degree murder.

Clearly, it can; just as the evidence of post-offence concealment and clean-up was taken into account in

Rodgerson . More recently, in R. v. Calnen , 2019 SCC 6 , [2019] S.C.J. No. 6 (QL) , Martin J., though dissenting in part, garnered the support of all her colleagues for her comprehensive review of the law relating to after-the-fact conduct. She explained that “[a]fter-the- fact conduct is circumstantial evidence” that allows “a fact finder to draw particular inferences based on a person’s words or actions” (para. 111).

She added that “[t]he inferences that may be drawn ‘must be reasonable according to the measuring stick of human experience’ and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence” (para. 112).

Martin J. explained that “there is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent” and “[it] may be used to distinguish between different levels of culpability” (para. 119), but she went on to state as follows: […] [w]hether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial”: White (2011) , at para. 42. [para. 119] [ 81 ] In the present case, Mr.

Turpin’s claim that Kennedy fell in the tub, if proven to be false , would be consistent with conduct other than his necessarily having the requisite intent for murder. His failure to be truthful, if that were found to be the case, could be consistent with conduct that fell short of unlawfulness, i.e. , negligent conduct on his part, or with conduct that fell short of murder, such as an assault without the added intent required to commit murder. Assume, as was suggested during the trial, that Mr.

Turpin violently shook Kennedy and, in the process, she unexpectedly struck her head against some hard object causing her the injuries suffered, there would not necessarily, in those circumstances, have been the requisite intent for murder. Yet, there could be incentive for Mr. Turpin to lie about what happened in order to escape the consequences of his actions.

In my view, the overall conduct and context is such that “it is not possible to choose between the available inferences as a matter of common sense, experience and logic,” which is the test Martin J. instructed is relevant in determining whether the after-the-fact conduct may be relevant to the level of culpability (para. 124). There is no glaring disproportionality between the statements Mr. Turpin might have made to deflect suspicion away from him and his level of culpability, which is also a factor to consider.

This is not a case as in Rodgerson where the after-the-fact conduct could be said to have been designed to hide the nature and extent of the injuries suffered by the victim, both of which could be indicative of the offender’s level of culpability; nor is it a case as in Calnen where there was other evidence indicative of intent and where the accused hid the victim’s body in a remote location and then embarked on a multi-step process to completely destroy the body by burning it. In my view, as a matter of logic, common sense and human experience, Mr.

Turpin’s claim of Kennedy having fallen in the bathtub, if rejected, does not make it more likely that he meant to kill her or cause her bodily harm knowing that it was likely to cause her death and was reckless as to whether death ensued. Thus, the jury should have been told not to consider this evidence on the question of the level of Mr.

Turpin’s culpability. [ 82 ] When the after-the-fact conduct is properly taken out of the mix in assessing the element of intent, all that should have been left for the jury to consider on the question of the requisite intent for murder was the nature and extent of Kennedy’s injuries. In Rodgerson , Moldaver J. for the Supreme Court noted the cornerstone of the Crown’s case on the matter of intent “was the nature and extent of the injuries suffered by [the victim], and the degree of force required to inflict them” (para. 19). He added, “[t]he more severe the injuries caused by Mr.

Rodgerson, and the more force required to inflict them, the stronger the inference that he intended to kill [the victim]” (para. 19). Moldaver J. agreed the nature and extent of the injuries and the force used to inflict them are factors the jury may consider in assessing intent, proposing a more specific jury instruction in this regard: para. 29. [ 83 ] In some cases, the nature and extent of a victim’s injuries will, when assessed with the circumstances of the case, lead to the inescapable inference that there must have been an intent to kill.

Take, for example, a victim who is repeatedly stabbed or who suffers multiple blows to the head. However, the same cannot be said of the present case. Although many of the expert witnesses did not believe Kennedy’s injuries resulted from a fall in the bathtub, none were able to offer a definitive explanation of how she was injured. Admittedly, the force was said to be significant, with many witnesses describing it as akin to a car accident or a significant fall; however, the fact is that Kennedy suffered a bruise to the back of the head and no injury to any other part of her body.

No one conclusively believed she died from being shaken, with many experts saying just the opposite. In my view, disregarding the after-the-fact conduct, a jury properly instructed could not reasonably and conclusively find that the only explanation for Kennedy’s head injury was that Mr. Turpin inflicted them with the requisite intent for murder. It is equally plausible that he applied force to her without that intent. When I view this matter through the lens of judicial experience, there are explanations consistent with an event short of murder that simply cannot be discounted. This was a circumstantial case.

In my view, it is simply not possible to say that a jury properly instructed, acting judicially, could be satisfied that Mr. Turpin’s guilt with the requisite intent for murder was the only reasonable conclusion available on the totality of the evidence. That being the case, the third question posed above must be answered negatively. III. Disposition [ 84 ] For these reasons, I would allow the appeal, set aside the conviction on the charge of second degree murder, enter an acquittal on that charge, and order a new trial on the charge of manslaughter.

As a result, it is not necessary to address the application for leave to cross-appeal on the period of parole ineligibility, which I would have dismissed in any event.

Version française de la décision de la Cour rendue par LE JUGE RICHARD, J.C.N.-B. I. Introduction [1] Le 2 avril 2004, Michael Terry prenait soin de son jeune fils à la maison lorsque, peu après 9 h, il a entendu quelqu’un frapper à la porte. Quand il a ouvert la porte, il a vu James Turpin, en état de panique, qui tenait dans ses bras une jeune enfant inconsciente. M. Turpin, vêtu seulement d’un tee-shirt, d’un caleçon boxeur et de chaussettes, a demandé de façon hystérique à M. Terry de les conduire à l’hôpital. Jugeant la situation grave, M. Terry a demandé à M. Turpin d’étendre l’enfant sur une chaise.

Il a reconnu l’enfant; c’était Kennedy Corrigan, âgée de deux ans et vivant juste à côté avec sa mère, Connie Corrigan, qui entretenait une relation avec M. Turpin. Kennedy portait uniquement une petite culotte. M. Turpin a expliqué qu’elle avait fait une chute dans la baignoire et avait perdu connaissance. M. Terry a remarqué que la petite fille n’était pas mouillée. [2] Presque immédiatement, M. Terry a composé le 911. Il a répété au téléphoniste ce que M.

[…]