Her Majesty the Queen v. Kenneth Kreiger, 2008 ONCA 336

CITATION: R. v. Kreiger, 2008 ONCA 336

DATE: 20080501

DOCKET: C43060

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS AND LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

KENNETH KREIGER

Appellant

Counsel:

Irwin Koziebrocki for the appellant

Deborah Krick for the respondent

Heard: April 23, 2008

On appeal from conviction and sentence by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury, dated June 8, 2004.

ENDORSEMENT

[1] Following a trial before Ewaschuk J. sitting with a jury, the appellant and his co-accused, Jason Bettencourt, were convicted of second-degree murder. The trial judge sentenced the appellant to life imprisonment without eligibility for parole for twelve years. The appellant appeals from his conviction and seeks leave to appeal the period of parole ineligibility.

Background

[2] The charge against the appellant relates to the murder of Omar McFarlane. The police found Mr. McFarlane’s body lying on a driveway in Etobicoke at around 5:34 a.m. on September 6, 2002. Mr. McFarlane died from twelve gunshot wounds, eight of which were to his head and chest. He also had abrasions, cuts and bruises on the left side of his face; a patterned bruise on his right cheek, consistent with having been hit with the butt of a gun; cuts and scratches to the back of his neck and throat; a cut on his upper back; abrasions on his torso and arms; and multiple cuts and abrasions on his hands.

[3] Based largely on the forensic evidence, the theory of the Crown at trial was that the deceased was attacked initially while sitting in the front passenger seat of his car, and that he suffered the knife cuts to his throat and back and a blow to the side of his head during this attack. He escaped from his car, but the appellant’s co-accused fired a number of gunshots at him. The deceased tried to flee on foot, but his attackers pursued him, the appellant in the deceased’s car and his co-accused in the car and on foot. The co-accused eventually caught the accused and fired the fatal gunshots.

[4] The appellant and the co-accused fled the scene in the deceased’s vehicle but were pursued by the police and crashed into the fence of a house bordering the Humber River Ravine. They jumped over the fence into the ravine. The police found the appellant injured in the ravine a short time later. He broke his leg while trying to escape. The police also found a gold necklace belonging to the deceased hanging on the branch of a tree near where they found the appellant. There was no visible blood on the necklace and police did not observe any blood on the north side of the river where they found the appellant. The police also found a yellow utility knife absent its blade near the appellant.

[5] At trial, the Crown claimed that the appellant aided or abetted the murder or that he participated in a robbery or theft knowing that the murder was a probable consequence. The appellant claimed that his co-accused perpetrated the initial attack and that he sat frozen in fear in the driver’s side of the deceased’s car while the co-accused hunted down the deceased on foot.

Conviction Appeal

[6] The appellant raises three grounds on his conviction appeal. First, he submits that the trial judge erred in leaving s. 21(2) of the Criminal Code with the jury because there was insufficient evidence of a predicate offence to support a theory of liability under that sub-section. We disagree.

[7] The Crown’s theory concerning a predicate offence was that, prior to the murder, the appellant and his co-accused agreed to rob the deceased of either his car or his gold necklace. The Crown claimed that the forensic evidence demonstrated that the appellant and his co-accused both participated in a violent struggle with the deceased in the deceased’s car, that the co-accused hit the deceased with a gun during this struggle, and that the appellant stole the deceased’s gold necklace before he was murdered.

[8] Although we consider that the evidence capable of supporting this theory was slim, in our view, it was sufficient to justify leaving s. 21(2) of the Criminal Code with the jury. This evidence included evidence of: i) injuries to the deceased that were inflicted with a knife and the butt of a gun; ii) the deceased’s blood in the front passenger seat of the car; iii) the deceased’s blood on the right sleeve and front panel of the appellant’s shirt and on his boot; iv) the co-accused’s blood in the back seat of the car; v) a bloodied bent knife in the back of the car; vi) the co-accused’s blood in a trail tracking the deceased’s movements as evidenced by a trail of the deceased’s blood; vii) the absence of injuries to the appellant that would have caused him to bleed; viii) the absence of blood in the driver’s seat of the deceased’s car; ix) the absence of visible blood on the gold chain when it was discovered; x) the failure to discover blood on the north side of the Humber River where the appellant was found; x) a yellow utility knife without a blade discovered near the appellant and xi) the blade from a utility knife on a road near the scene of the murder.

[9] Taken as whole, in our view, it would have been open to the jury to infer on the basis of this evidence that the appellant and the co-accused formed an intention in common to carry out a robbery before the deceased was murdered and that the appellant knew that his co-accused had a gun and that the murder was a probable consequence of the robbery. Accordingly, we do not give effect to this ground of appeal.

[10] Second, the appellant submits that the trial judge erred in his instructions to the jury concerning s. 21(2) of the Criminal Code. The appellant argues that the trial judge’s instructions concerning this sub-section were confusing, that the trial judge erred by instructing the jury on the doctrine of recent possession and that, in any event, the trial judge’s instructions concerning the inferences that could be drawn based on recent possession were flawed. We do not accept these submissions.

[11] Although appellant’s counsel advanced the position that the trial judge’s instructions concerning s. 21(2) were confusing, in oral argument, he properly conceded that the trial judge’s instructions were legally correct and that any potential confusion arising from the initial instructions was clarified in subsequent instructions in both the charge and the recharge.

[12] The appellant’s argument that the trial judge erred in leaving the doctrine of recent possession was founded on this court’s decision in R. v. Laliberty (1997), 1997 CanLII 2992 (ON CA), 117 C.C.C. (3d) 97. However, Laliberty does not stand for the proposition that it is an error in law to charge the jury on recent possession in circumstances such as these: see Laliberty at para. 43. Moreover, unlike the trial judge in Laliberty, the trial judge in this case did not tell the jury that recent possession creates any form of presumption; rather, he instructed them that it creates a permissible inference.

[13] We agree that the trial judge’s initial instructions concerning the inferences that could be drawn from a finding that the appellant was in possession of the deceased’s necklace were flawed. However, defence counsel objected to this aspect of the charge and approved the trial judge’s recharge on the issue.

[14] In the recharge, the trial judge explained that his initial instruction that it would be open to the jury to find that the appellant was a secondary party to murder based on a finding that the appellant was in personal possession of the deceased’s gold necklace before the murder was incorrect. Instead, the available inference would be that the appellant was an active participant in a robbery or theft of the chain and the jury would have to go on to determine, based on other evidence, whether the appellant aided or abetted the co-accused for the purpose of committing murder or subjectively knew that murder would be a probable consequence of carrying out the robbery.

[15] Although the trial judge did not explicitly refer to common purpose in the recharge, that issue was fully canvassed elsewhere in his charge and in the “Essential Matters” sheet given to the jury. Moreover, defence counsel did not request a specific instruction on that issue in the recharge. We do not give effect to this ground of appeal.

[16] Third, the appellant submits that the trial judge erred by instructing the jury that abetting may include “purposeful presence at the scene of a crime”. The appellant submits that the trial judge failed to make it clear that abetting requires an intention to encourage, and something more than mere passive presence at the scene of a crime.

[17] We reject this submission. In addition to the impugned statement, the trial judge explicitly instructed the jury that abetting means, “encouraging someone in any manner to commit an offence.” The trial judge also told the jury that neither accidental presence nor passive presence at the scene of a crime is sufficient. Finally, the trial judge made the impugned statement by way of contrast to his earlier comments in order to explain to the jury that, in some circumstances, presence at a crime can, in itself, constitute encouragement and therefore amount to abetting.

[18] For these reasons, the conviction appeal is dismissed.

Sentence Appeal

[19] The appellant argues that the trial judge erred in principle by increasing the appellant’s period of parole ineligibility to twelve years. While acknowledging that the murder was callous, the appellant points to the facts that: he was not the actual killer, he had no prior criminal record, he was 26 years of age at the time of the offence, and was the father of a young child. In addition, the appellant argues that, since ten members of the jury recommended only ten years of parole ineligibility, that period should not have been increased. Finally, the appellant seeks to introduce fresh evidence to show his positive progress during his imprisonment.

[20] We see no error in principle in the period of parole ineligibility imposed by the trial judge. The trial judge explicitly considered the factors prescribed in s. 745.4 of the Criminal Code and the relevant principles of sentencing, including the character of the offender, the nature of the offence, the circumstances surrounding its commission and the jury’s recommendations.

[21] In particular, the trial judge had regard to the appellant’s active participation as an aider and abettor, the callous stalking of the victim, and the high degree of prolonged brutality and violence ending with what amounted to “a horrific execution” using a firearm in a residential neighbourhood. The trial judge appreciated that the appellant took a lesser role in the murder; this is reflected in his imposition of the higher period of ineligibility of twenty-years for the co-accused, which we have concluded in separate reasons was appropriate.

[22] The trial judge also took into consideration the Crown’s argument for a fifteen-year ineligibility - the period recommended by two of the jurors - and the submission of defence counsel at trial that no increase was warranted. In our view, the period imposed by the trial judge was within the range. Moreover, although the appellant’s positive progress in jail is commendable, it does not justify altering the original disposition.

[23] Leave to appeal sentence is granted, but the appeal is dismissed.

“John Laskin J.A.”

“Janet Simmons J.A.”

“S. E. Lang J.A.”