COURT OF APPEAL FOR ONTARIO

DATE: 20000908

DOCKET: C30117

RE: HER MAJESTY THE QUEEN (Respondent) –and– EKREM PUPOVIC (Appellant)

BEFORE: LABROSSE, WEILER and SHARPE JJ.A.

COUNSEL: Irwin Koziebrocki, for the appellant

Thomas D. Galligan, for the respondent

HEARD: September 8, 2000

On appeal from the conviction imposed by Justice Arthur C. Whealy, sitting with a jury, dated January 27, 1998 and from the sentence imposed by Justice Whealy dated June 16, 1998.

E N D O R S E M E N T

[1] The appellant was charged with three offences: 1) break and entry with intent to commit an indictable offence; 2) forcible confinement; and 3) attempted kidnapping. Following a trial before a judge and jury, he was convicted on the charge of forcible confinement and acquitted on the other two charges. He was sentenced to five years imprisonment. The appellant appeals both his conviction and sentence.

[2] A brief summary of the background facts giving rise to the charges is as follows. The appellant went to the house of Barbara Cavrak, his former mother-in-law. He was leaving for Yugoslavia and wanted to see his daughter before he left. The appellant was not supposed to be at the house or to see his daughter. According to Ms. Cavrak, after she let the appellant into the house he bound and gagged her in the basement. The appellant’s daughter returned home and he spent some time playing with her. When a neighbour knocked on the door, the appellant untied Ms. Cavrak and took her to the door. The neighbour, the appellant and Ms. Cavrak remained in front of the house talking for some time. A woman in a car drove up and told the appellant to hurry. The appellant got in the car, left, went to the airport and took the plane for Yugoslavia. When he returned after a lengthy absence, he surrendered to the police on these charges.

[3] With respect to conviction, the appellant raises three grounds of appeal.

(1) Inconsistent verdicts

[4] The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury, properly instructed, could have arrived at the verdict reached: R. v. Koury, 1964 CanLII 2 (SCC), [1964] 2 C.C.C. 97 (S.C.C.).

[5] The appellant submits the acquittal on the charge of break and entry with intent to commit an indictable offence is inconsistent with the conviction of the appellant for forcible confinement.

[6] We have not been persuaded that the appellant has discharged the onus upon him. The jury could have concluded that the appellant did not break and enter the house but that, once inside, he committed an offence. Indeed, the appellant’s mother-in-law testified that she let him into the house. We would dismiss the first ground of appeal.

(2) The Corbett application

[7] The appellant submits that the trial judge erred in failing to exclude the appellant’s prior criminal record. The appellant’s previous convictions included assault, uttering threats and possession of a restricted weapon. These offences were close in nature and time to the charges alleged. The appellant acknowledges that he attacked the credibility of the complainant but submits that this factor alone did not overcome the prejudicial effect of permitting the appellant’s prior convictions to the jury.

[8] The appellant’s complaint is really with the manner in which the trial judge exercised his discretion. In our opinion, the trial judge did not commit any error in principle in the exercise of this discretion. Moreover, the trial judge instructed the jury on the use he could make of the prior convictions. Accordingly, we would also dismiss this ground of appeal.

(3) Reply evidence called by the Crown

[9] The trial judge ruled that the evidence relating to the trip to Yugoslavia was important because the accused’s defence was that he was not attempting to kidnap anyone. He was embarking on a perilous trip to rescue his parents needed his car for this purpose. The appellant concedes that the travel arrangements were of significance. The appellant submits, however, that the evidence that was called showed that the payments on his car were in arrears, that there was about $35,000 owing on the vehicle, that one payment had been made in February of 1995 and that the car was not supposed to be taken outside Canada. It is submitted that this was evidence of bad character and ought not to have been admitted. There was a handwritten note in the file to the effect that the vehicle was sold in Serbia and the vehicle was in that location. This evidence was not anticipated by anyone. The defence requested a mistrial. The trial judge refused. He instructed the jury, however, that this evidence was of no concern to them.

[10] In the circumstances, the Crown was entitled to lead evidence respecting the vehicle to challenge the appellant’s evidence concerning his travel arrangements. These travel arrangements only assumed the significance they did once the defendant testified. The unanticipated and other evidence was the subject of a sufficient direction by the trial judge. We must assume that the jury abided by the trial judge’s direction.

[11] Inasmuch as we would also dismiss this ground of appeal, the conviction appeal is dismissed. In so doing, we note, for purposes of the record, that one ground of appeal was not pursued, namely the use of photos of the original exhibits because the exhibits themselves were lost.

Sentence

[12] At the time of this offence, the appellant was on a probation order, having been convicted of intimidation and the terms of probation included not being at the home of his mother-in-law. The use of a knife was involved. The appellant also had a prior criminal record for offences of violence, including forcible confinement. The trial judge found that there was planning and premeditation. We agree that there was planning and premeditation to tie up the appellant’s mother-in-law. In light of the jury’s verdict, we do not agree that the trial judge was entitled to conclude that a plan was put in motion to kidnap the mother-in-law or the daughter. The trial judge erred in this regard.

[13] The appellant has served six weeks of his sentence. He has been on bail pending his appeal. Some seven years have passed since these events occurred without any untoward occurrences. While we agree with the trial judge that this was a serious offence, we are of the opinion that, in the circumstances, a sentence of five years for unlawful confinement was outside the appropriate range of sentence. We would grant leave to appeal sentence, allow the appeal of the sentence and, in its place, substitute a sentence of two years imprisonment plus three years probation. The terms of probation are that the appellant is to report to his probation officer upon his release and thereafter as and when required, plus the usual statutory terms.

[14] In addition, the appellant is to refrain from association or communication with Anna Cavrak, Liljki Krokovic, Barbara Cavrak, Mara Roguz and Sabina Pupovic.