



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gale, 2019 ONCA 519

DATE: 20190621

DOCKET: C60457

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

BETWEEN

Her Majesty the Queen

Respondent

and

George Christopher Gale

Appellant

Brian H. Greenspan and Peter R. Hamm, for the appellant

Alexander Alvaro, for the respondent

Heard: June 6, 2019

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

REASONS FOR DECISION

[1]

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

THE CONVICTION APPEAL

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

A.

The Bar on Mentioning the Polygraph

[7]

Mr. Gale brought an application at trial pursuant to
Charter
,

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

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

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

[13]

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

[14]

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

B.

Cst. Coons Expertise

[15]

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

[16]

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

[17]

We
    would therefore also dismiss this ground of appeal.

THE SENTENCE APPEAL

[18]

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

[19]

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

[20]

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

DISPOSITION

[21]

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


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


