COURT OF APPEAL FOR ONTARIO

DATE: 20000913

DOCKET: C23937

C25015

C25385

ABELLA, O’CONNOR AND MACPHERSON JJ.A.

BETWEEN: )

HER MAJESTY THE QUEEN ) Lucy Cecchetto

) for the Crown

(Appellant/ )

Respondent) )

and )

ANDREI SHCHAVINSKY and ) Howard F. Morton, Q.C.

VALERI YASHNEV ) for Andrei Shchavinsky

(Respondents/ )

Appellants) ) Timothy E. Breen

) for Valeri Yashnev

) Heard: April 25 and 26, 2000

On appeal from the acquittal for the first degree murder and the conviction for second degree murder by Justice John Goodearle sitting with a jury, on January 18, 1996.

MACPHERSON J.A.:

INTRODUCTION

[1] A young Russian émigré, Vladimir Makhno, lived in a small third floor walk-up apartment in the east end of Hamilton. He had come to Canada in 1991, initially settling in Alberta. In February 1993 he moved to Hamilton. He did not seem to have gainful employment. He lived on welfare and unemployment insurance payments and had small amounts of money in his bank account.

[2] Makhno travelled to Bulgaria in August 1993. Shortly after his return on September 4, 1993, $40,000 U.S. was wired to his bank account from a bank in Jacksonville, Florida. Makhno paid off a $9,000 debt to a man who had befriended him, bought some new clothing and a watch and, on September 10, purchased a new Acura for $31,512.19.

[3] Two nights later, at about 2:15-2:30 a.m., Gary Guite, a man who lived in the apartment immediately below Makhno, was awakened by noises. The doorknobs to his and Makhno’s apartments were about 10 inches apart. He heard someone turning both doorknobs. He also heard a number of keys jangling and being tried in locks. The person went back and forth between the doors for about five minutes. Finally, the door to Makhno’s apartment opened and Guite heard someone going up the stairs. Guite heard shuffling, sliding and thumping noises upstairs. Then he heard someone come down the stairs. He also heard the sound of something rubbing against the wall in the stairwell during the descent.

[4] Two weeks later, Makhno’s body was found far from Hamilton, in the woods adjoining a dead end concession road in King Township, north of Toronto. He was wearing only his underwear. He had cuts, abrasions, bruises and a broken nose. He had a fractured neck which, a medical expert testified, was consistent with death having been caused by manual strangulation.

[5] Makhno’s new Acura was found even farther from Hamilton, on the docks at the port of Bremerhaven in Germany.

[6] Two of Makhno’s friends from the Russian and Ukrainian émigré communities, Valeri Yashnev and Andrei Shchavinsky, were charged with the first degree murder of Makhno. The Crown’s theory was a simple one – Yashnev and Shchavinsky had murdered Makhno so that they could steal his Acura and ship it to Russia to be sold there.

[7] The trial took place over the course of three months in late 1995 and early 1996. Goodearle J. presided. On January 18, 1996, the jury acquitted both accused men of first degree murder, but found them guilty of second degree murder. On February 15, 1996, the trial judge sentenced both men to life imprisonment with no chance of parole for 12 years.

[8] Both men appeal their convictions. The Crown makes a contingent cross-appeal. Its position is that Yashnev’s and Shchavinsky’s appeals should be dismissed; however, if they are allowed, the new trial should be on the original charges of first degree murder.

[9] The appellants advance many grounds of appeal relating to virtually every aspect of the trial, including the jury selection process, evidentiary rulings made by the trial judge, rulings he made on applications for severance and a mistrial, and his charge to the jury. Most of the grounds of appeal are advanced jointly by both appellants. However, Shchavinsky posits one additional and separate ground of appeal. He asserts that counsel for Yashnev’s closing address to the jury, with its strong suggestion that only Shchavinsky was involved in the murder, was highly inflammatory and prejudiced Shchavinsky’s right to a fair trial.

A. FACTUAL BACKGROUND

[10] Vladimir Makhno met Valeri Yashnev at an American mission near Rome while awaiting approval to immigrate to Canada. Both arrived in Canada in 1991. Makhno went to Alberta; Yashnev settled in Hamilton. They kept in touch. In February 1993 Makhno moved to Hamilton. Yashnev assisted Makhno by arranging for him to stay with another of his friends, Andrei Shchavinsky, when he arrived in Hamilton.

[11] In Hamilton, Makhno lived on welfare and unemployment insurance benefits. Yashnev, who was also receiving welfare benefits, operated an export business, selling goods, especially automobiles, in Russia. Shchavinsky was associated with Yashnev in his automobile export business.

[12] In August 1993 Makhno travelled to Bulgaria with Samuel Klebner, a Russian who conducted business in Florida. On September 1, Makhno was in Jacksonville, Florida. On Klebner’s instructions, one of his associates gave Makhno $50,000 U.S. Makhno took $1,000 cash and opened a personal chequing account at First National Bank in Jacksonville with a deposit of $9,000. The remaining $40,000 was transferred by wire to Makhno’s account in Hamilton on September 3.

[13] On Saturday, September 4, 1993, Makhno was back in Hamilton. He visited Acura on Main, a car dealership in Hamilton. He purchased an Acura Integra GSR loaded with options for $31,512.19. He also purchased bridge insurance which entitled him to a new replacement vehicle with the same options if the car was stolen or written off. Makhno was to take delivery of the car on Friday, September 10.

[14] It is clear that Makhno was excited about his new car. He told his friends about it. Yashnev and Shchavinsky obviously knew about it, as sometime between September 4 and 10 they visited the car dealership and told a salesperson, Elizabeth Fusato, that a friend had just bought an Acura Integra GSR. They told Fusato that they were in the import/export business and bought cars and other goods for resale in Russia. They asked for a sales brochure for the Acura. Fusato replied that none was available but invited them to return later because new brochures were expected soon.

[15] Makhno returned to the dealership and took possession of the Acura on Friday, September 10. He drove it around and showed it to friends. He returned it to the dealership in the afternoon because he was worried about vandalism if he parked it near his apartment. He had told his friends and associates that he would be going to Florida on Sunday, September 12 and might be away for several months.

[16] On September 11, Makhno returned to the dealership and retrieved the car. At about 5:00 p.m. he picked up a friend, Olga Anasimkin, and drove her to Toronto. Later in the evening, he drove Anasimkin and her friend, Yelena Kompaniyetz, back to Hamilton. Anasimkin testified that Makhno dropped them off at her apartment at about 10:00 p.m. She invited him upstairs but he declined, saying that he planned to drive to Florida the next day and wanted to get up early. He told her that he would be gone for three months and that he would be doing business with rich people.

[17] According to Anasimkin, on September 10 Yashnev had offered to take her to Toronto, but on September 13, not September 11 which is when she wanted to go. She told Yashnev that Makhno might take her on the 11th. Anasimkin testified that at about 11:00 p.m. on September 11 she received a telephone call from Yashnev, inquiring whether she needed a ride on Monday the 13th. She advised him that Makhno had taken her that day.

[18] Gary Guite, who resided in the apartment immediately below Makhno, testified that at about 2:15-2:30 a.m. on Sunday, September 12, he heard noises outside his apartment door. The doorknobs to his and Makhno’s apartments were about 10 inches apart, with Makhno’s door opening onto a narrow staircase ascending to his apartment. After about five minutes, he heard Makhno’s door open and footsteps going up the stairs. He heard noises upstairs – shuffling, sliding and thumping. Then he heard footsteps coming down the stairs, accompanied by the sound of something rubbing against the stairwell wall.

[19] Sergei Chkodzinski was a boyhood friend of Shchavinsky who had immigrated to Canada in 1989. He also knew Yashnev. He testified that between 2:00 and 3:00 a.m. on September 12 he received a telephone call from Shchavinsky who sought permission to leave a car at his residence. Chkodzinski agreed. When he awoke at 10:00 a.m., he looked out his back window and saw a black Acura parked in the driveway.

[20] On September 13, between 10:00 and 11:00 a.m., Shchavinsky came to Chkodzinski’s door and told him that he was taking the Acura. Chkodzinski saw the Acura being driven away, but he did not see the driver. However, he also saw Shchavinsky enter and drive off in a green BMW that had been parked on the road. He recognized this car as one belonging to Yashnev.

[21] Sometime between September 13 and September 20, Yashnev returned to the Acura dealership and asked Fusato for a brochure. When Fusato told him that the brochures had not come in, Yashnev asked her for an owner’s manual. He indicated that he needed the manual as a selling tool to show potential buyers in Russia. Fusato gave Yashnev a 1993 manual.

[22] In September 1993, Edward Shmorgun operated B & B Car Sales in Downsview. Shmorgun advertised in a Russian language newspaper and shipped cars to Russia. On September 14, 1993, at 1:30 p.m., he received a call placed from Yashnev’s apartment in Hamilton. Shmorgun recalled that the caller wanted information on shipping a car to Russia. The caller was anxious to ship the car that month. Shmorgun contacted Cargoways and learned that a car could be shipped in September at a cost of $1,950 U.S.

[23] Yashnev and another man attended at Shmorgun’s office, almost certainly on September 14. Yashnev indicated that the car was owned by his companion. Shmorgun recalled that the men wanted the car sent soon, as they intended to travel to Russia and take delivery when it arrived. Shmorgun had a poor memory of the second man. When shown a single photograph of Makhno by police on September 29, 1993, he said that it was “probably” and “looks like” the man who accompanied Yashnev. When shown a photograph of a group of people, including Makhno, Shmorgun did not identify anyone. At the preliminary inquiry, in May 1994, when shown a photograph of Makhno and a woman, Shmorgun said that he looked like the second man.

[24] The car was shipped to Viktor Fokin in St. Petersburg, Russia. Yashnev gave Fokin’s telephone number to Shmorgun. Telephone records reflect calls from Yashnev’s residence to his number both before (August 22, September 6) and after (September 20) Makhno’s death.

[25] On the morning of September 23, 1993, King Township works employees discovered Makhno’s body in a wooded area off a road allowance extending south from the dead end of the 7th Concession. Drag marks were observed at the scene in the bush from the roadway to where the body was found. A plastic Ultramart shopping bag, with a substantial amount of blood inside, was located at the scene. The blood was of a type consistent with Makhno and 12 percent of the population. The body was naked with the exception of underwear.

[26] The body of Makhno was identified on September 24. A police investigation commenced. On September 25, both Yashnev and Shchavinsky were interviewed.

[27] On October 2, Yashnev and Shchavinsky flew from New York to St. Petersburg, Russia.

[28] On October 10, police seized the Acura in Bremerhaven, Germany. The car was returned to Canada. DNA analysis of blood on the paper floor mats on the driver and passenger floor areas indicated that the blood was consistent with that of Makhno and 16 percent of the population, but not with the blood of Yashnev or Shchavinsky.

[29] Yashnev and Shchavinsky returned to New York on December 22 and were detained at the airport. On December 28, while in custody, Shchavinsky made a collect call to Chkodzinski in Toronto. It was monitored and recorded by the institution. The trial judge ruled that the tape was inadmissible. However, Chkodzinski testified about the call and was cross-examined with the aid of a transcript of the call. During the call he spoke to both Yashnev and Shchavinsky who urged him to go immediately to the Ukraine. Yashnev stated: “This is serious. No joke. You go there and do business there, and sit down and think about this”.

[30] Yashnev and Shchavinsky waived extradition and returned to Toronto on January 6, 1994. They were charged with first degree murder.

[31] At the trial, both accused chose not to testify or call evidence.

[32] Shchavinsky’s position was that he did not kill, or participate in the killing of, Makhno. He disputed the time, venue and manner of Makhno’s death. He took the position that Makhno’s injuries were consistent with a violent struggle and could not have occurred in his apartment on September 12. He argued that the phone call to Chkodzinski at around 3:00 a.m. on September 12 represented an effort by him to assist in finding Makhno a safe place to store his vehicle. He took the position that Makhno was alive and involved in the shipping of the car to Russia, and indeed was the second man who had attended at Shmorgun’s office with Yashnev on September 14.

[33] Shchavinsky’s counsel argued that his client’s failure to tell police about storing the car at Chkodzinski’s residence arose out of a reluctance to involve himself in Makhno’s dealings with the vehicle. His counsel took the position that apart from attempting to distance himself from the car, Shchavinsky co-operated fully with the police. He suggested that his trip to Russia in October 1993 was a normal business trip and his call to Chkodzinski from the detention centre in New York in late December was a normal telephone call.

[34] Yashnev’s position was that he did not kill, or participate in the killing of, Makhno. In a closing address following Shchavinsky’s, Yashnev’s counsel suggested that Shchavinsky alone had killed Makhno in his apartment on September 12. This ‘cut-throat’ defence attempted to limit Yashnev’s role to participation in shipping the Acura to Russia after Makhno’s death. He recalled the fact that when Shmorgan asked him whose car it was, he pointed to the other man who he suggested was Shchavinsky. He suggested that his prior calls to the consignee, Viktor Fokin in St. Petersburg, were normal business calls. Counsel explained the omissions in Yashnev’s statements to the police by saying his client was reluctant to involve himself with a dead man’s car. He suggested that Yashnev’s October trip to Russia was a normal business trip, not flight. He argued that the December call to Chkodzinski from the detention centre in New York was not an attempt to intimidate him or to get him to leave Canada, but was an attempt to persuade Chkodzinski to give Yashnev’s wife some money since Chkodzinski had wrongly implicated Yashnev in a murder.

[35] The jury acquitted Yashnev and Shchavinsky of first degree murder and found them guilty of second degree murder. The trial judge sentenced them to life imprisonment with no chance for parole for 12 years. Both men appeal their convictions. The Crown makes a contingent cross-appeal. Its position is that if a new trial is ordered for either or both men, it should proceed on the original charges of first degree murder. There are other facts from the long and complicated trial that are relevant to the appeal. However, they can be mentioned when they arise in relation to a particular ground of appeal.

B. ISSUES

[36] In my view, the many issues in this appeal can be divided into three groups - issues raised by both Yashnev and Shchavinsky, an issue raised by only Shchavinsky, and issues raised by the Crown in its contingent appeal. Moreover, I am inclined to deal chronologically with the issues raised jointly by Yashnev and Shchavinsky, beginning with the jury selection process and concluding with the trial judge’s charge to the jury. The issues are:

Joint Issues

(1) Did the trial judge err in failing to allow the appellants’ application to challenge prospective jurors for cause on the grounds of anti-immigrant bias?

(2) Did the trial judge err in ruling that the evidence of Artem Tchaptsov, a business associate of Samuel Klebner, was inadmissible?

(3) Did the trial judge err by failing to relate the evidence to the positions of each accused and by failing to instruct the jury that the liability of each accused was to be determined separately on the basis of the evidence admissible against each?

(4) Did the trial judge misdirect the jury on consciousness of guilt?

(5) Did the trial judge misdirect the jury on recent possession?

(6) Did the trial judge misdirect the jury on reasonable doubt?

(7) Did the trial judge misdirect the jury on the manner in which they were to determine facts from the evidence?

(8) Did the trial judge misdirect the jury on circumstantial evidence?

(9) Did the trial judge misdirect the jury as to the elements of manslaughter and err in providing the jury with an unedited text of s. 21(2) of the Criminal Code?

(10) Did the trial judge err when he made comments in his charge to the jury about the closing addresses of defence counsel and failed to comment on one aspect of the Crown’s closing address?

Shchavinsky Issue

(1) Did the trial judge err by not granting severance and ordering a mistrial in respect of Shchavinsky because of prejudice to him arising from the ‘inappropriate and inflammatory jury address’ by Yashnev’s counsel?

Crown Contingent Appeal Issues

(1) Did the trial judge err in ruling that the tape recording and transcript of the telephone conversation involving Yashnev, Shchavinsky and Chkodzinski on December 28, 1993 was inadmissible?

(2) Did the trial judge err in refusing to charge the jury on the agency exception to the hearsay rule?

(3) Did the trial judge misdirect the jury on recent possession?

(4) Did the trial judge misdirect the jury on consciousness of guilt?

C. ANALYSIS

Joint Issues

(1) Challenge for cause

[37] The appellants submit that the trial judge erred in failing to allow their application to challenge prospective jurors for cause on the grounds of anti-immigrant bias.

[38] I see no merit in this ground of appeal. The trial judge correctly applied the test in R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509. He referred to the long history of immigration in Canada, the fact that the appellants were not part of a visible minority immigrant group, and the strong likelihood of a Newmarket jury having a diverse ethnic background. He concluded that there was no air of reality to the appellants’ application. I see no reason to interfere with his exercise of discretion on this issue. Moreover, I note that since the trial judge made his ruling in this case in 1995, several other trial judges have not permitted challenges for cause on the basis of national origin. Their rulings have consistently been upheld by this court: see, for example, R. v. Koh (1998), 1998 CanLII 6117 (ON CA), 131 C.C.C. (3d) 257 (Ont. C.A.); R. v. Bishop, [1999] O.J. 3155 (C.A.); and R. v. Barnes (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.).

(2) The evidence of Artem Tchaptsov

[39] The appellants sought to introduce the evidence of Artem Tchaptsov. Tchaptsov was a Russian businessman who wanted to move cash offshore in short term investments in order to avoid Russian taxes. He met Klebner and Makhno in Sofia, Bulgaria on August 20 or 21. During this meeting, Tchaptsov directed that $500,000 U.S. be transferred to one of Klebner’s companies.

[40] Tchaptsov reached Makhno by telephone at the beginning of September. Makhno advised him that Klebner’s company had received the money and that Klebner was taking care of the arrangements. Around the end of September, Tchaptsov received a call from Klebner who advised him that Makhno had been murdered. Tchaptsov met Klebner in Moscow in early October. Klebner stated that he had transferred Tchaptsov’s money, along with that of other investors, to Makhno in Canada. Klebner said that Makhno was to withdraw the money and put it into an account of a new company. He told Tchaptsov that he did not know what had happened to his money, but he believed that someone must have killed Makhno in order to steal the money.

[41] Bank records in Jacksonville, Florida relating to Klebner’s company show that on August 26, 1993 a wire transfer of $500,000 U.S. was received. On August 31, the balance in the account was $642,606.17. On September 2, Makhno received $50,000 from the account, $1,000 in cash, $9,000 to a Jacksonville account and $40,000 to his Hamilton account. By September 9, the account balance in Klebner’s company’s bank account in Jacksonville was only $92,987.97.

[42] The appellants sought to introduce Tchaptsov’s evidence on two bases. First, they contended that it was part of the narrative. Tchaptsov was the source of the funds that had provided Makhno with money to buy the Acura. Second, the appellants submit that the representations made by Klebner to Tchaptsov concerning the whereabouts of Tchaptsov’s money demonstrate an attempt by Klebner to utilize Makhno’s death as a means to conceal his theft of it. The appellants submit that this evidence could support inferences of motive and consciousness of guilt in relation to the homicide. The appellants state that, given the temporal proximity between the theft and the homicide, Tchaptsov’s evidence was logically probative of Klebner’s involvement in the killing and was, therefore, admissible.

[43] In my view, the submission grounded in Tchaptsov’s evidence as narrative is of minor import. The fact that Makhno’s new money came from Florida was before the jury. The real question is whether Tchatpsov’s evidence should have been admitted to raise the possibility that a third party, Klebner, had murdered Makhno.

[44] On this issue the leading cases, as the trial judge recognized, are R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824, and R. v. Arcangioli (1994), 1994 CanLII 107 (SCC), 87 C.C.C. (3d) 289 (S.C.C.). The test for the admission of evidence relating to a potential third party perpetrator was articulated by Martin J.A. in McMillan , at p. 167:

Evidence that a third person had a motive to commit the murder … or made threats against the deceased is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.

[45] The trial judge reviewed McMillan, Arcangioli and other authorities and said:

These cases state that before such evidence can be proffered there must be a link between the third party suspect and the crime charged. Such a link, in my view, must be evidentially based, rather than simply motive based.

In my view, this statement of legal principle flowing from the case law is correct.

[46] The trial judge then applied the legal principle to this case:

In this case, as pointed out by the Crown, there is no evidence Klebner was ever in Canada, no evidence of opportunity to commit the crime, no evidence of animus between Klebner and Makhno. There is, however, some evidence that these two persons were working in tandem on investing money from Russian sources. That evidence surely falls short of being an evidentiary link to this murder.

From the evidence before me, I cannot for a moment even view Klebner as a suspect. As the Crown has pointed out, what Tchaptsov might think because of what he says he was told by Klebner is in no way relevant to this case. His account of how his money went missing, without something else, is relevant to no issue in this trial.

[47] In addition to these factors, it could be noted that there was no evidence of Makhno expressing any fear of Klebner. Makhno’s trip to Bulgaria with Klebner, his receipt of $50,000 U.S. from one of Klebner’s companies, his expressed - indeed enthusiastic - intention to return to Florida, and Klebner’s call to Frank Lauinger on September 21, 1993 inquiring about Makhno’s whereabouts, are all inconsistent with a Klebner as murderer scenario.

[48] A trial judge’s view on relevancy of evidence is entitled to deference. He or she is in a preferred position to balance probative value and prejudice. In this case, the trial judge was aware of, and diligently attempted to apply, the relevant authorities. He also carefully assessed the proposed evidence against the backdrop of the evidence already heard during the trial. In these circumstances, I cannot say that he erred in excluding the potential evidence of Artem Tchaptsov.

(3) Review of the evidence/Position of the defence/Separate liability

[49] The appellants assert that the trial judge’s review of the evidence and his summary of the positions of the two accused in his jury charge did not make it clear to the jury that they had to consider the position of each accused separately on the basis of only the evidence relating to that accused. Moreover, the appellants assert that the trial judge’s review of possible verdicts omitted an important possible verdict - namely, that one accused could be found guilty of one offence (e.g. second degree murder) while the second accused could be found guilty of a lesser offence (e.g. manslaughter). The cumulative effect of these errors, the appellants submit, was that “the jury will take the impression from Your Honour’s charge that they are joined together at the hip in terms of their verdicts”.

[50] I see no merit in the ‘evidence’ component of this submission. It should be noted at the outset that neither appellant testified at the trial. Thus the trial judge’s review of the evidence was, of necessity, a review of evidence tendered by the Crown. In spite of this limitation, the trial judge was very careful to differentiate between evidence relating only to Yashnev and evidence relating only to Shchavinsky.

[51] For example, he discussed Yashnev’s telephone call to Olga Anasimkin at about 11:00 p.m. on September 11. He reviewed Yashnev's visit to Edward Shmorgun on September 14 where arrangements were made to ship the Acura to Russia. During his review of this evidence, the trial judge reminded the jury: “Finally, in further cross-examination, when asked if he had ever seen Shchavinsky in his office, Shmorgun simply replied no”. The trial judge reviewed Yashnev’s telephone calls, both before and after Makhno’s murder, to Viktor Fokin, the intended consignee of the Acura in Russia. With respect to Shchavinsky, the trial judge discussed his call to Sergei Chkodzinski between 2:00 and 3:00 p.m. on September 12 and he reviewed Chkodzinski’s testimony concerning Shchavinsky’s retrieval of the Acura from his driveway the next day. In all of these examples, the trial judge did not link both appellants to evidence that related to only one of them.

[52] Moreover, even when reviewing evidence relating to both appellants, the trial judge was careful to be accurate in his treatment of that evidence. For example, he said:

There is evidence, if you accept it, that Yashnev knew that Makhno had returned from Toronto that Saturday evening, the llth, and there is also evidence that both men believed Makhno was leaving early the next morning for Florida in his new car, if you choose to accept it.

The evidence of opportunity that I recall, subject to what you people may recall, is as follows: Number one; Shchavinsky knew where Makhno lived. Perhaps according to Yashnev’s statement to the police, so did he. I quote, “At this time he was living with some Dutch guy on King Street.” It does not say that he knew precisely where he lived, but you take that evidence for what it is worth.

[53] Nor do I see any merit in the appellants’ complaint that the trial judge did not adequately review, and differentiate, their positions. The appellants’ ultimate positions, through the closing addresses of their counsel, were indeed quite different. Shchavinsky’s position was that Makhno was still alive and participating with Yashnev in shipping the Acura to Russia after September 12. Yashnev’s position was that perhaps Shchavinsky, acting alone, murdered Makhno. The trial judge communicated these different positions quite clearly in his charge to the jury.

[54] With respect to the ‘verdict’ component of his charge, the trial judge repeated constantly (by my count, more than 20 times) that the jury had to determine the involvement of either accused, “each considered separately”. Moreover, he referred to the “killer or killers”, the “murderer or murderers”, “him or them”, “either one of them”, and “either or both”. He specifically told the jury that it was possible for them to “conclude that but one person entered the apartment”.

[55] At the conclusion of his charge, the trial judge listed thirteen possible verdicts. The first eleven options dealt with potential verdicts relating to first degree murder, second degree murder, manslaughter and acquittal. The last two options were a finding of guilt against one accused and an acquittal of the other.

[56] The appellants submit that the trial judge erred in not placing before the jury two other options - namely, findings of guilt against both accused, but for different offences, for example, second degree murder for one and manslaughter for the other. In support of this submission, the appellants rely on R. v. Davy (1993), 1993 CanLII 53 (SCC), 86 C.C.C. (3d) 385 (S.C.C.), where McLachlin J. said, at p. 397:

At no point did the trial judge expressly tell the jury that it was open to it to find Jackson guilty of murder and Davy guilty of manslaughter. In the scenario which he outlined for the jury, none of the possible verdicts for Davy were manslaughter. Furthermore, and most telling, the trial judge stated: “It may be unlikely in this case that Davy would be guilty of manslaughter.”

[57] In my view, although it might have been preferable for the trial judge to include in his jury charge the option of findings of guilt against both accused, but for different offences, it is not fatal that he did not do so. The circumstances of this case are very different from those in Davy.

[58] In Davy, manslaughter was a live issue. Davy admitted that he was at the murder scene with the victim and a co-accused. However, he denied that he had participated in a plan to rob and kill the deceased. The co-accused also testified about his and Davy’s roles in the events. Moreover, a third man, who resided with the victim, testified about the events. After reviewing the evidence of all three men, McLachlin J. said, at p. 389:

On the basis of this evidence a number of scenarios may be constructed. The strength and plausibility of each depends upon the credibility of each witness and the weight which might be ascribed to each piece of evidence. The jury could have found that Davy had nothing to do with the murder and must be acquitted. Or, the jury could have found that Davy assisted Jackson in the activities that led to the murder or the robbery. On yet another scenario, proffered by the Crown, Jackson and Davy both entered Raebenloft and both participated fully in the attacks as well as the robbery. Davy’s fate at trial depended upon the scenario chosen and the conclusions drawn as to duress and his state of mind.

[59] The present appeal is very different. Neither appellant testified and raised the spectre of no involvement or a lesser involvement than the perpetrator. There were no eyewitnesses to Makhno’s murder. The Crown’s case was entirely circumstantial. Elements of the circumstantial evidence - Yashnev’s call to Anasimkin at 11:00 p.m. on September 11, Shchavinsky’s call to Chkodzinski at 2:00 - 3:00 a.m. on September 12 - linked both accused to Makhno, either just before or just after the time at which he was most likely killed.

[60] In these circumstances, although it is possible to see how a jury’s treatment of the evidence might have led to a finding of guilt against one accused and an acquittal of the other, it is difficult to see anything in the evidence that would have permitted findings of guilt, but for different offences, against the two accused. Moreover, it is important to note that nothing the trial judge said in his charge excluded the jury’s consideration of this option. Indeed, the judge repeated constantly that the jury had to reach its verdict with respect to each accused separately. For these reasons, I do not think that the trial judge erred by not explicitly placing the ‘both guilty, but of different offences’ options before the jury. Perhaps in a ‘perfect’ charge they would have been included out of an abundance of caution; however, their omission does not support a conclusion that the jury was not properly instructed: see R. v. Jacquard (1997), 1997 CanLII 374 (SCC), 113 C.C.C. (3d) 1 at 6-7 (S.C.C.).

(4) Consciousness of guilt[1]

[61] The appellants make two submissions on this issue: first, that the trial judge failed to separate the evidence relating to consciousness of guilt and relate it to each appellant separately; and second, that the trial judge was obliged to instruct the jury that the appellants’ efforts to conceal their connection to the car might be consistent with their concern about having committed some other offence, for example, unlawful possession of the car.

[62] I do not agree with either submission. With respect to the first submission, the trial judge specifically instructed the jury that they had to “be satisfied beyond a reasonable doubt that these two men, each considered separately- how many times have I said that - were trying to flee from Canada to avoid being implicated in these charges before you may use this evidence as evidence of consciousness of guilt.” Moreover, the trial judge carefully reviewed the conduct of each accused on this issue. The reality is

that their conduct was similar - they both failed to mention their involvement with Makhno’s car in their initial interviews with police, they flew together to Russia on October 2, they returned together to New York on December 22, and they participated together in the telephone conversation with Chkodzinski on December 28. When the conduct of the appellants was different, the trial judge treated it separately. For example, he reviewed separately the contents of each of the appellant’s conversations with Chkodzinski. And he reviewed separately Yashnev’s conversation with Shmorgun in which Yashnev told Shmorgun, falsely, that he had no telephone number at which he could be reached.

[63] Turning to the second submission, the trial judge could not have been clearer about the requirement that the jury consider any evidence of consciousness of guilt in the context of the offence with which they had been charged. For example, when he reviewed the appellants’ police interviews, he said:

If you decide that either of these men hid involvement with Makhno’s car from the officers only to avoid involvement in a car theft, or robbery, or unlawful possession of a car, and not in his death, you must not use such evidence as evidence of consciousness of guilt respecting the murder.

When the trial judge discussed the trip to Russia, he did so in terms of whether the appellants were attempting to avoid being implicated “in these charges”. And when he reviewed Yashnev’s conversation with Shmorgun he told the jury to “discard this evidence” if they thought it might relate to a “concern for being found in possession of a stolen car, and nothing more”.

(5) Recent possession

[64] The appellants assert that the trial judge erred in instructing the jury that he had decided, as a matter of law, that there was evidence of recent possession of stolen property so as to permit an inference of the appellants’ involvement in the theft of the car. The appellants contend that this instruction encroached on the fact finding function of the jury.

[65] I disagree. The trial judge said that he had decided that the doctrine of recent possession “could apply as a useful part of this case”. However, he told the jury explicitly that it was for them to determine its application:

Those three things that I have mentioned, theft, possession, and recency of possession, they are all questions of fact that you must decide. All I have decided as a matter of law is that there is evidence which you may use to decide whether or not those three things have been proven by the Crown.

(6) Reasonable doubt

[66] The appellants assert that the trial judge erred by defining ‘reasonable doubt’ in terms of the ordinary and natural meaning of the words, without special legal connotation, and by failing to communicate the distinction between criminal and civil proceedings to the jury.

[67] These submissions are without merit. The jury charge in this case pre-dated, and was not entirely consistent with, R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). However, this court has held on several occasions that the “ordinary and natural meaning” language of pre -Lifchus charges is not fatal, provided that the charge, read as a whole, clearly communicated to the jury the special meaning of reasonable doubt associated with the presumption of innocence and the burden of proof: see R. v. Arsenault, [1997] O.J. No. 3977 (C.A.); R. v. Atkinson, [1997] O.J. No. 4788 (C.A.); and R. v. Marquardt, (1998), 1998 CanLII 3527 (ON CA), 37 O.R. (3d) 321 (C.A.). In the present case, the trial judge’s charge, read as a whole, properly communicated to the jury the crucial features of the presumption of innocence, burden of proof and reasonable doubt in a criminal trial.

(7) Jury’s role in determining facts

[68] The appellants contend that the trial judge erred in instructing the jury concerning the manner in which they were to distill facts from evidence. The specific contention is that in instructing the jury that facts were to be drawn from evidence that the jury accepted, and that they should then apply the law to those facts, the trial judge eliminated from the jury’s consideration evidence which they did not accept, but which could give rise to a reasonable doubt.

[69] I disagree. A fair reading of the charge demonstrates that the jury was instructed to consider all of the evidence and determine whether the Crown had proved its case beyond a reasonable doubt. The trial judge’s charge in this respect was consistent with the leading authorities: see R. v. MacKenzie (1993), 1993 CanLII 149 (SCC), 78 C.C.C. (3d) 193 (S.C.C.).

(8) Circumstantial evidence

[70] The appellants submit that the trial judge erred in instructing the jury on the nature of circumstantial evidence and the process of drawing inferences. They criticize his use of an example, namely a break and enter case, and they quarrel with his juxtaposition of an inference with a guess or hunch.

[71] These are quibbles. The trial judge’s charge on circumstantial evidence was fine. In the break and enter example he chose, he discussed both how inferences could be drawn and the dangers of the process. Indeed, before employing the example, the trial judge was particularly clear in highlighting for the jury the frailties of circumstantial evidence.

(9) Homicide/Copy of Criminal Code provision given to jury

[72] The appellants contend that the trial judge erred in defining manslaughter as an unintentional killing. They submit that this instruction makes an absence of intent an element of the offence and effectively shifts the burden of proof. The appellants also contend that the trial judge erred in providing the jury an unedited copy of s. 21(2) of the Criminal Code containing the words ‘ought to have known’ since these words would be inapplicable in this case.

[73] I do not agree with these submissions. The trial judge’s charge on all of the offences, including manslaughter, was clear on the presumption of innocence, the burden of proof and reasonable doubt.

[74] The jury should not have been provided with an unedited copy of s. 21(2) of the Criminal Code. However, in light of the trial judge’s charge, there was no risk that the jury would apply an objective standard when assessing murder.

(9) Closing addresses of counsel

[75] The appellants assert that the trial judge’s corrections of some of the closing addresses of defence counsel and his failure to comment on one remark made by Crown counsel (defence counsel are “hired” to advance the interests of their clients) in his closing address prejudiced their clients.

[76] There is no merit in these submissions. The trial judge’s corrections of some of the comments made by both defence counsel in their closing addresses were minimal, carefully, indeed gently, worded, and entirely appropriate. The real issue in this appeal is not whether the trial judge erred in what he corrected concerning the closing addresses of defence counsel; rather the issue is, as the appellant Shchavinsky submits, whether the closing address by Yashnev’s counsel prejudiced Shchavinsky’s right to a fair trial.

[77] With respect to Crown counsel’s use of the word “hired”, the trial judge commented on it immediately after Crown counsel had finished his jury address. The trial judge pointed out the obvious fact that all counsel, Crown and defence, were hired to represent certain interests and that “the use of the word hired should not imply or infer anything negative to you”. In my view, this comment was appropriate and sufficient.

Shchavinsky Issue

(1) Co-accused’s jury address

[78] Shchavinsky contends that Yashnev’s trial counsel (not counsel on the appeal) gave an inappropriate and inflammatory jury address which had the effect of depriving Shchavinsky of a fair trial. He submits that the trial judge erred in not granting his motion for severance and a mistrial when it was made following counsel for Yashnev’s address. He further contends that, if the trial judge did not err in dismissing the motion, he erred by not commenting in a sufficiently strong fashion in his jury charge about the improprieties in that address.

[79] Shchavinsky submits that the jury address on behalf of Yashnev was improper in three respects. First, Yashnev’s counsel invited the jury to speculate about a highly prejudicial factual theory for which there was no foundation in the evidence. Second, counsel improperly expressed his personal opinions concerning the issues, the credibility of witnesses, the innocence of his client, and the guilt of the co-accused. Third, counsel used highly inflammatory and prejudicial rhetoric to point to the guilt of the co-accused.

[80] All three of these objections relate to counsel for Yashnev’s adoption of a ‘cut-throat’ defence in his jury address, delivered after the jury address made on behalf of Shchavinsky. In the address on behalf of Yashnev, counsel attacked Chkodzinski’s testimony on the basis that he was trying to protect a lifelong friend, Shchavinsky, who was involved in a murder. In drawing this link between these two men, Yashnev’s counsel was explicit in its implications for Shchavinsky:

Let me give you another scenario that does work. You’re Andrei Shchavinsky. And you’ve decided that you’re going to steal this car. And whether you’re going to do it by killing the guy who can identify you, or sneaking into his apartment and hoping to get those keys without waking him. And he wakes and puts you in a position where you have to silence him, or at least make a get-away. And intentionally or unintentionally put a bag over his head to hide the fact that you’re in the apartment. A scuffle ensues in which he dies ….

And then you take the keys, and you take the body, and get rid of it. All right. Now you’re in big trouble, because not only do you have a hot car, you have a dead body.

And who are you going to go to for help at two-thirty in the morning? Your’re going to go to your best friend [Chkodzinski].

And later Yashnev’s counsel continued:

Now for Shchavinsky he’s in big trouble, because, by his own admission, when he calls Chkodzinski and says can I drop a car off, and lo and behold the black Acura is at the back of Chkodzinski’s house, we put Shchavinsky into possession, and his unexplained possession of that car at two-thirty or three o’clock in the morning, just around the time of the bumps in the night over at 201 King Street in Hamilton, his unexplained possession would target him as the thief.

[81] Against this background, I turn to Shchavinsky’s three complaints. I see no merit in his first submission. Yashnev’s counsel laid a proper foundation for his cut-throat defence in his cross-examination of Chkodzinski. He may not have filled in all the details in that cross-examination, but there was a clear foreshadowing of a potential Yashnev defence anchored in an accusation that Chkodzinski knew that Shchavinsky was Makhno’s killer and, out of friendship, helped him dispose of the Acura. Indeed, Crown counsel, in his jury address delivered before the address on behalf of Yashnev, correctly anticipated that Yashnev’s defence might be that Shchavinsky was Makhno’s killer.

[82] The reality of this case is that a cut-throat defence was, on the evidence, open to both appellants. Shchavinsky’s telephone call to Chkodzinski very soon after Makhno’s death and his involvement in obtaining and moving Makhno’s Acura provided Yashnev with an excellent opportunity, which he seized, to minimize his own role. Equally, Yashnev’s telephone call to Viktor Fokin, the intended consignee of the car in Russia, several days before the murder and his call to Olga Anasimkin at about 11:00 p.m. on the night of the murder, during which he found out that Makhno had gone home, would have served as a foundation for Shchavinsky to point the finger at Yashnev. The fact that Yashnev adopted a cut-throat defence, and Shchavinsky did not, is a matter for their own consciences and, perhaps, for reflection by, and even debate between, defence counsel. It was not, however, an impermissible position for Yashnev to take.

[83] Turning to Shchavinsky’s second complaint, Yashnev’s counsel did stray over the line in injecting his own views into his jury address. It was a long address at the end of a long and complicated trial and most of the address was appropriate. However, Yashnev’s counsel referred to his 26 year career, he told the jury that he had done a lot of murder cases, and he said to the jury “I will tell you a story that I used recently in a rather notorious trial”.

[84] In his jury charge, the trial judge told the jury that counsel’s career was irrelevant. After listing the specific transgressions, he said:

Well, we are not interested in [counsel’s] self-image, or otherwise, as a lawyer of great experience, which may be known to you. He should simply be seen as counsel for one of the accused in this case. Nothing less, nothing more, as, indeed, you should see the other counsel sitting at the counsel table.

In my view, this was a properly brief and sensible correction of transgressions by counsel in a long and, at times, impassioned jury address. The trial judge, correctly, did not ignore the transgressions. However, his brief correction did not deflect the jury’s attention from the important and complicated charge he was about to deliver.

[85] Shchavinsky’s third complaint is that counsel for Yashnev used highly inflammatory and prejudicial rhetoric in his jury address. Shchavinsky compares this jury address to the one which was sharply criticized by this court in R. v. Giesecke (1993), 1993 CanLII 8600 (ON CA), 82 C.C.C. (3d) 331 (Ont. C.A.).

[86] I disagree. The jury address in Giesecke was highly inflammatory in the language counsel chose to attack the co-accused. He compared her to a “she-bear” in a Kipling poem who, as an “accosted … monster … rends the peasant tooth and nail, for the female species is more deadly than the male” (at. p. 334). Moreover, counsel improperly told the jury that he had unsuccessfully urged his client to testify: “Would that I could drag him from the box and put him in the stand and force him to tell you all he knows. I can’t ….” (at p. 335).

[87] Counsel for Yashnev’s jury address in this case was not as inappropriate as the address in Giesecke. I set out above the passages in which counsel asserted the cut-throat defence. In my view, counsel’s language was blunt, but not unfair.

[88] The trial judge dismissed Shchavinsky’s motion for severance and a mistrial. In my view, his ruling was correct. There is a long line of cases supporting the joint trial of co-accused persons even where one or both of the accused employ a cut-throat defence. In the leading case, R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.), Sopinka J. said, at p. 497:

There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts.

The trial judge’s ruling in this case was consistent with Crawford and many similar cases.

[89] In the end, there was nothing wrong, legally, with Yashnev’s decision to advance a cut-throat defence. Nor was the language counsel employed in this component of his jury address inflammatory or unfair. Finally, although counsel may have overstepped the bounds of proper advocacy by injecting, on a small number of occasions, his personal comments and views into his jury address, the trial judge corrected these transgressions in a brief and effective fashion in his jury charge.

Crown Contingent Appeal

[90] The Crown’s contingent appeal raises four issues. However, the condition precedent of the contingent appeal is a decision that either or both appellants’ appeals are allowed and a new trial is ordered. In that circumstance, the Crown contends that four errors made by the trial judge support a decision that the new trial be on the original charge of first degree murder. Since the condition precedent has not occurred, it is not necessary to consider the Crown’s contingent appeal.

D. Disposition

[91] I would dismiss the appeals of both appellants.

Released: September 13, 2000 “J.C. MacPherson J.A.”

“I agree R.S. Abella J.A.”

“I agree D.R. O’Connor J.A.”

[^1]: I use this title because it is the phrase used by the trial judge in his jury charge. The phrase was considered appropriate at the time. It was subsequently criticized by the Supreme Court of Canada which recommended that judges employ the phrases "post-offence conduct" or "after-the-fact conduct”: see R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72.