Court File and Parties

CITATION: R. v. Bettencourt, 2008 ONCA 337

DATE: 20080501

DOCKET: C42051

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant (Defendant)

And

JASON BETTENCOURT

Respondents (Plaintiffs)

Counsel:

Brian Snell for the appellant

Jamie Klukach 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] After a trial before Ewaschuk J. and a jury, the appellant Jason Bettencourt and his co-appellant Kenneth Kreiger were convicted of second degree murder for killing Omar MacFarlane. Mr. Bettencourt was sentenced to life imprisonment without eligibility for parole for 20 years. He appeals both his conviction and the period of parole ineligibility.

[2] The killing took place around 5:00 o’clock in the morning in a quiet residential neighbourhood in Etobicoke. Mr. MacFarlane was brutally attacked in his car with a knife, then pursued after he managed to escape and shot twelve times. That the shooter had the mens rea for murder was not in dispute. A principal issue at trial, however, was the identity of the shooter.

[3] The Crown’s theory was that Mr. Bettencourt was the shooter. It relied mainly on DNA evidence, which showed that Mr. Bettencourt’s blood was in the victim’s car, along the street where the victim ran when he escaped from his car, at the point where the victim’s body was found, and in the ravine into which the suspects fled. Forensic ballistics evidence and eyewitness evidence supported the story told by the blood evidence.

[4] Mr. Bettencourt did not testify and did not call any evidence in his defence. However, he claimed that an unidentified third person was responsible for the shooting. He relied on the evidence of an eyewitness to the incident.

A. The Conviction Appeal

[5] On his appeal against conviction, Mr. Bettencourt makes three submissions. First, he submits that the trial judge’s comments on the unreliability of the eyewitness identification evidence went beyond acceptable comment, usurped the function of the jury and thus deprived Mr. Bettencourt of a fair trial. Second, he submits that the trial judge erred in law by failing to tell the jury that to the extent the eyewitness identification evidence was exculpatory, it need only raise a reasonable doubt about the appellant’s guilt. Third, Mr. Bettencourt submits that the trial judge erred in law in failing to instruct the jury that manslaughter was an available verdict for the appellant.

[6] We did not call on the Crown on Mr. Bettencourt’s third submission. In our view, even if an unidentified third person was at the scene and responsible for the killing, there is no air of reality to a verdict of manslaughter. The blood evidence would at least implicate Mr. Bettencourt as a party to the murder with the requisite intent. We turn to the other two grounds of appeal.

(1) The trial judge’s comments

[7] Mr. Bettencourt contends that the trial judge’s comments about the unreliability of the eyewitness identification evidence were unacceptably strong and had the effect of taking away from the jury the one defence that he had. Mr. Bettencourt buttresses this submission by pointing to the trial judge’s instruction on the DNA evidence, which the trial judge told the jury was fundamental to determining whether the appellant shot Mr. MacFarlane. In combination, Mr. Bettencourt argues, these instructions destroyed his defence.

[8] The trial judge’s comments on the identification evidence were undoubtedly very strong. But both the Supreme Court of Canada and this court have consistently said that trial judges are entitled to comment on the evidence, even in strong terms, so long as in doing so they do not express a personal opinion about an accused’s guilt or lead the jury to believe that it is bound by the trial judge’s comments.

[9] In our view the trial judge did not transgress the limits of acceptable comment. We say that for these reasons: He expressed no opinion about Mr. Bettencourt’s guilt; his comments were justified by the overwhelming strength of the Crown’s case against Mr. Bettencourt; he gave the standard instruction to the jury that they were the sole triers of fact and were free to disregard his comments; and, perhaps most important, after making these comments at the beginning of his overview of Mr. Bettencourt’s position he expressly told the jury, “It is you, the jury, who decide the truth of the case. You twelve people decide the facts; that is what actually happened. You are the final arbiters of the truth of the case”. Thus, we conclude that the trial judge’s comments did not usurp the jury’s function.

[10] Further, the trial judge’s comments on the DNA evidence were fair. The blood evidence was central to the case, although undoubtedly damning for the defence’s position. Still, the trial judge stopped short of telling the jury that if it accepted the DNA evidence, it should find Mr. Bettencourt guilty. Instead, he simply left it open to the jury to convict.

[11] For these reasons we decline to give effect to this ground of appeal.

(2) Exculpatory eyewitness identification evidence

[12] One of the eyewitnesses described the height and weight of the person she saw in terms that were at odds with Mr. Bettencourt’s height and weight. The witness made her observation at night, was near-sighted and was not wearing her glasses. The Crown argued that she had observed Mr. Bettencourt and was simply mistaken in her description of him. The trial judge (in one of the comments impugned under the first ground of appeal) also told the jury that in his opinion the witness made “obvious errors” in her testimony about Mr. Bettencourt’s height and weight. The defence, however, relied on the eyewitness’s testimony in support of its theory that an unidentified third man was responsible for the killing.

[13] The trial judge appropriately cautioned the jury about the frailties of eyewitness identification evidence. However, Mr. Bettencourt argues that because the evidence of the witness was potentially exculpatory, the trial judge was obliged to go further and tell the jury that it may rely on this evidence in support of the defence position if it leaves the jury with a reasonable doubt.

[14] In the light of this court’s judgment in R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 at para. 46, it would have been preferable had the trial judge given the instruction sought by the appellant. However, as we have already said, the Crown’s case against Mr. Bettencourt was overwhelming and in our view, the eyewitness identification evidence appeared unreliable. Thus, the trial judge’s failure to give the instruction sought by Mr. Bettencourt did not prejudice him. We therefore do not give effect to this ground of appeal.

[15] Accordingly, the conviction appeal is dismissed.

B. Sentence Appeal Against the Period of Parole Ineligibility

[16] Mr. Bettencourt does not claim that the trial judge made an error in principle in fixing parole ineligibility at 20 years. Instead, he says that 20 years exceeds an acceptable range. We disagree.

[17] This was a murder of extraordinary violence, cruelty and inhumanity. Mr. Bettencourt relentlessly pursued the victim, eventually shooting him a dozen times, including six shots to the face and two to the chest.

[18] Mr. Bettencourt’s moral culpability was very high. The impact of the murder on the victim’s family has been devastating. And we have no evidence that would warrant any leniency. We have no evidence of good character, no mitigating factors in Mr. Bettencourt’s background.

[19] Taken together, these considerations justify the 20 year period of parole ineligibility imposed by the trial judge. Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

Signed: “John Laskin J.A.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”