DATE: 20010927 DOCKET: C31544

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – RADE BIJELIC (Appellant)

BEFORE:

DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

Howard C. Rubel

for the appellant

Philip Perlmutter

for the respondent

HEARD:

September 21, 2001

On appeal from the conviction on November 30, 1998 and the sentence imposed on January 29, 1999 by Justice H. Locke.

E N D O R S E M E N T

[1] On January 10, 1996, the appellant was arrested and charged with importing restricted weapons, namely handguns, possession of restricted weapons, and delivery of restricted weapons to an unauthorized person. He was also charged with importing prohibited weapons, namely several large capacity cartridge magazines. The indictment covered the period from October 1995 to January 1996.

[2] On November 30, 1998, the appellant was found guilty of all four charges by Mr. Justice Locke sitting alone. The appellant was sentenced to four years imprisonment on count 1 and three years concurrent on each of the other three counts.

[3] The theory of the Crown was that the appellant purchased firearms in Florida and transported them to Val Pavicevic in Hamilton who sold them to undercover officers. Mr. Pavicevic was convicted of charges arising out of the investigation and sentenced to 3 years (plus one year pre-trial). He was deported shortly before the trial.

[4] The Crown introduced a number of statements Mr. Pavicevic made to an undercover officer claiming that the statements were admissible against the appellant in that they were made in furtherance of a common design to which the appellant was a party to import illegal firearms into Canada. The appellant argues that the statements were inadmissible against him unless it could first be shown on the balance of probabilities, using only evidence directly admissible against him, that he was a member of the alleged common design.

[5] We agree with the appellant’s statement of the applicable law, but disagree with his contention that the evidence directly admissible against him could not support a finding of probable membership in the scheme to import the guns into Canada. There was ample evidence upon which the trial judge could reasonably base this conclusion. Apart altogether from the hearsay statements, there was clear evidence that the appellant purchased the guns in Florida which were sold only a few days later by Mr. Pavicevic to the undercover officer and that Mr. Pavicevic was an associate of the appellant. The finding of the trial judge could properly rest on this foundation.

[6] The trial judge also relied on the evidence of Bruno Silvestri who testified that on November 23, 1995, he was working as an undercover police officer and saw the appellant at Mr. Pavicevic’s house in Hamilton, Ontario. The trial judge viewed the Silvestri evidence with great caution because the witness had subsequently been convicted of theft and resigned from the police force. However, the trial judge accepted the evidence because he found it supported by the testimony of two other police officers. One observed a car pass Mr. Pavicevic’s residence on November 23, which had Florida licence plates and was linked to a Florida house used by the appellant and owned by his father. The other saw Silvestri enter the residence on that day and another male later exit the house.

[7] While the appellant argued that the evidence of the two officers could not provide corroboration, in our view it was open to the trial judge to conclude that the evidence of those officers did indeed provide support for the Silvestri evidence. Their evidence was capable of strengthening the trial judge’s belief that the suspect witness was telling the truth. Hence it was open to the trial judge to accept the Silvestri evidence and use it as additional support for his conclusion that on a balance of probabilities the appellant was a member of the criminal enterprise.

[8] Finally, on the conviction appeal, the appellant argued that his section 11(b) Charter right had been violated in this case.

[9] The appellant was arrested on January 31, 1996. Disclosure was complicated by the fact that a good deal of it had to come from Florida and involved individuals and organizations over which the Crown had no control. Disclosure was completed to all intents and purposes by December 12, 1996, when the date for a preliminary hearing was set. That hearing began on September 8, 1997, but insufficient time had been set aside and it was not completed until January 22, 1998. The trial then commenced on November 2, 1998. Throughout this time frame there were a number of court appearances, the transcripts of which provide a firm foundation for the trial judge’s conclusion that the appellant either consented to the majority of adjournments or acquiesced in them in view of the reality of the challenge posed by disclosure.

[10] In our view, the overall time lapse from arrest to trial cannot be said to be unreasonable in all the circumstances of this case. The time taken for disclosure was naturally affected by the nature of the case and the offshore source of the information to be disclosed. The appellant has not demonstrated that ten months to assemble and distribute the necessary disclosure went beyond the reasonable demands of a case like this one.

[11] Much of the time taken to schedule and then complete the preliminary hearing must be seen as simply part of the inherent time requirements of the case. Four days were scheduled for the preliminary and when it could not be finished a further day had to be scheduled. In these circumstances, it is not unreasonable to expect some delay.

[12] Finally, the appellant’s claim of prejudice because Mr. Pavicevic was unavailable to give evidence at trial does not withstand scrutiny. The appellant gave no indication prior to trial of an intention to call Mr. Pavicevic. Nor did he supply the trial judge with any indication of what evidence Mr. Pavicevic might have given, let alone how it might assist him, although his counsel had taken a statement from Mr. Pavicevic.

[13] In all the circumstances, the trial judge was correct in concluding that the lapse of time had been sufficiently explained and the appellant had not demonstrated prejudice. The trial judge properly concluded that the appellant’s s. 11(b) right had not been violated.

[14] Finally, as to sentence, we can find no error in principle. Nor is the sentence demonstrably unfit. These were serious crimes involving 15 to 20 handguns. The trial judge found that the appellant was a front line principal in a criminal enterprise. He found that the appellant was motivated by greed and had as his criminal purpose the selling of these weapons to criminals who would use them to commit crimes against Canadian citizens. In light of these findings, all of which were open to the trial judge on this record, we think the sentence imposed was fit.

[15] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is also dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”