DATE: 20061016
DOCKET: C41785
COURT OF APPEAL FOR ONTARIO
CRONK, LANG AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Irwin Koziebrocki
for the appellant
Respondent
- and -
MOHAN RAMKISSOON
M. David Lepofsky
and Daniel Guttman
for the respondent
Appellant
Heard: October 4, 2006
On appeal from the conviction entered by Justice Nick Borkovich of the Superior Court of Justice dated February 13, 2004 and from the sentence imposed by Justice Nick Borkovich dated March 1, 2004.
MACFARLAND J.A.:
[1] This is an appeal by the appellant from his conviction for second degree murder on February 13, 2004, after trial before Borkovich J. and a jury, and from the life sentence imposed on March 1, 2004, with no eligibility for parole for 14 years.
Conviction Appeal
[2] The appellant raises five grounds of appeal in support of his conviction appeal. First, he submits that the trial judge erred in his instruction to the jury on proof beyond a reasonable doubt. The appellant concedes that the language used in the charge by the trial judge conforms to the language of the model charge as set out in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) at 14. He says, however, in this case more is required. It is not enough to say what proof beyond a reasonable doubt is not. A trial judge is obliged, particularly in a circumstantial case such as this one, to also say what a reasonable doubt is.
[3] The trial judge, in his charge, adopted entirely the suggested language of Cory J. in Lifchus, supra. He said both what a reasonable doubt was and what it was not. He was not obliged to do more. I would not give effect to this ground of appeal.
[4] The second ground of appeal relates to the evidence of the appellant’s after-the-fact conduct. The appellant says, firstly, that this evidence was inadmissible in that its prejudicial effect outweighed its probative value. Secondly, he says that if the evidence was properly admissible, the trial judge’s charge to the jury in relation to the use to be made of this evidence was inadequate.
[5] At trial, the Crown led evidence that the accused, nine months after the disappearance of his wife (the victim) and before he had been told by the authorities that his wife had been killed in suspicious circumstances, had purchased a one-way ticket for himself and his two children to Guyana. This occurred two days after a 90 minute meeting he had with the police about his wife’s disappearance. The police called and asked to speak with him further. Before such a meeting took place, the appellant left work and took his children out of school. He asked a travel agent for one-way tickets to Guyana as soon as possible for himself and his children and booked a flight for the following evening.
[6] In addition to the flight arrangements, he accelerated his efforts to liquidate his assets: he tried to sell his house and the contents thereof and his car, and withdrew cash from his RRSP.
[7] On the day of the flight, in the morning before 6:00 a.m., he enlisted the assistance of one of his tenants to lift his children over a backyard fence to evade police he was sure were watching his home. He left his car in plain view in the front of the house and paid a virtual stranger $20.00 to drive him and the children to a nearby GO station. He took a cab to his place of employment where he entered through the front but left through the backdoor with the children. He briefly checked into a hotel near his home. He was arrested that evening at the airport before boarding a plane bound for Guyana.
[8] While all this conduct occurred some nine months after the disappearance of the appellant’s wife, it followed in very close proximity to the renewed interest of the police in the case (the victim’s body by then having been found and identified) and in the appellant, in particular.
[9] This evidence was clearly admissible. It was relevant because it suggested circumstantially that the appellant may have had some involvement in the disappearance and/or murder of his wife and that he was attempting to avoid detection of this by the police.
[10] As the Supreme Court of Canada noted in White v. The Queen and Côté v. The Queen (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at 400:
Whether a jury should be permitted to consider evidence of post-offence conduct will depend on the facts of each case.
[11] In his charge, the trial judge carefully reviewed the evidence of the appellant’s after-the-fact conduct. He told the jury that such conduct may help it decide who committed the crime or it may not. He offered other innocent explanations for the appellant’s conduct. He also pointed out that only after the jury concluded that the appellant had in fact done what the Crown alleged, and that such conduct was consistent with the appellant being conscious of what the Crown alleged against him – and not for any other innocent purpose, then and only then could the jury consider such evidence, together with all the other evidence in reaching its verdict.
[12] In my view, the trial judge’s instruction on the permissible use of the evidence of the appellant’s after-the-fact conduct was unobjectionable in the circumstances. Indeed, parts of that instruction were decidedly favourable to the defence because they explicitly drew the attention of the jury to the innocent explanations offered by the defence for the appellant’s after-the-fact conduct. Accordingly, I would give no effect to this ground of appeal.
[13] The third ground of appeal challenges the reasonableness of the verdict. With his usual candour, Mr. Koziebrocki conceded that he would be hard-pressed to argue this ground of appeal. I agree.
[14] Fourth, the appellant says the trial judge failed to review all the evidence favourable to the defence in his charge. He says because this was a factually complex and circumstantial case, the trial judge had a duty to review all this evidence.
[15] We note that the trial judge’s charge took place the morning following the detailed and extensive closing jury addresses of both the Crown and the defence. The trial, by present day standards, was a relatively short one – some 18 days. It was reasonable in these circumstances for the trial judge to assume that the evidence was fresh in the minds of the jurors and, in my view, the trial judge’s review of the evidence for the jury was adequate. The charge, it is conceded, was favourable to the defence. In the circumstances, this ground of appeal must also fail.
[16] Lastly, the appellant argues that the trial judge did not adequately deal with a question posed by the jury.
[17] About two hours into their deliberations, the jury asked if it could have a transcript of the entire trial and, if not, then of the evidence of four witnesses whom the jury named.
[18] After hearing submissions of counsel, the trial judge informed the jury that it could not have a transcript of the entire trial. In relation to the evidence of the four specific witnesses, while the trial judge was prepared to provide them with that evidence defence counsel expressed his concern that providing the transcript of the one witness that was available and playing back the entire evidence of the other three (of which transcripts were not available) would tend to over-emphasize the evidence of those four witnesses over that of the other witnesses who testified.
[19] The trial judge acquiesced to the submission of defence counsel and said to the jury in relation to this evidence and with the concurrence of defence counsel:
[I]f you have specific points that you are concerned about in the witness’ testimony, if you put those in a question as to what you want to hear and give it to us, I will then get that question and it can either be read to you or perhaps it can be played back to you. But, holus bolus just to provide you with all of this information is just not within our realm of possibility. So, if you like, we are going to take the lunch hour now. If over the lunch hour you have specific bits of evidence you want to have replayed to you or reheard, let us know by way of your questions and we will call everybody back and we will try to get those answers for you.
[20] Some time later the court was informed by the jury that it was happy with the circumstances and if it needed something it would come back and ask for it.
[21] The jury retired to consider its verdict at 12:55 p.m. and reached a verdict the following day at 3:25 p.m.
[22] In view of the message that the jury left for the court, there was no obligation on the trial judge to do more. It is apparent from its message that the jury was fully aware that if it wished anything more it could return to ask for it. In the circumstances, nothing more was required. The defence counsel opposed giving the jury the evidence at trial for tactical or strategic reasons as significant parts of that evidence were not favourable to the defence position. While the defence position is not determinative, it is indicative of the fact that no prejudice was occasioned to the defence as a result. I would give no effect to this ground of appeal.
[23] Accordingly, I would dismiss the appeal as to conviction.
Sentence Appeal
[24] The appellant seeks leave to appeal his sentence and, in particular, the 14 year parole ineligibility term imposed by the trial judge. The jury made no recommendation in this regard. It is clear that the trial judge took into consideration the factors that s. 745.4 of the Criminal Code requires. He gave clear reasons why parole ineligibility should be increased from 10 to 14 years. The sentence is within the range imposed in like cases. As a result, I would reject this ground of appeal.
[25] Accordingly, while I would grant leave to appeal sentence, I would dismiss the sentence appeal.
RELEASED: October 16, 2006 “EAC”
“J. MacFarland J.A.”
“I agree E.A. Cronk J.A.”
“I agree S.E. Lang, J.A.”