Court File and Parties

Citation: R. v. Klymchuk, 2008 ONCA 854 Date: 2008-12-16 Docket: M36867 (C49193) Court of Appeal for Ontario

Before: Rosenberg J.A. (In Chambers)

Between: Her Majesty the Queen (Respondent) and Kirk Klymchuk (Applicant)

Counsel: Anil Kapoor, for the applicant Deborah Krick, for the respondent

Heard: October 24, 2008

Reasons for Decision

Rosenberg J.A.:

[1] The applicant applies for bail pending his appeal from conviction for second degree murder. The Crown opposes the application on the basis that the appeal is frivolous and that the applicant’s release would be contrary to the public interest. The Crown does not suggest that the applicant would not surrender into custody.

[2] This was the applicant’s third trial for the first degree murder of his wife. The applicant was convicted by court composed of Wein J. and a jury but that conviction was set aside and a new trial ordered on November 30, 2005. This court’s reasons for allowing the appeal are reported at 2005 CanLII 44167 (ON CA), 203 C.C.C. (3d) 341. The applicant’s second trial before Speyer J. ended in a mistrial on November 16, 2006, when the jury was unable to reach a verdict. His third trial for first degree murder before Dawson J. began on March 17, 2008. After five days of deliberations the jury convicted the applicant on May 30, 2008 of second degree murder.

[3] The applicant’s wife was found dead on April 12, 1998. The applicant was arrested on December 3, 1998. He was released on bail on March 8, 1999 and except for a brief period was on bail until his conviction on December 8, 2000. He was released on bail again on December 21, 2005 pending his second trial.

[4] At this point, the applicant raises two grounds of appeal. He argues that the trial judge erred in failing to order disclosure of the identity of a confidential police informer and that the verdict of second degree murder is unreasonable.

The Police Informer Ground of Appeal

[5] About one month after the killing, the police received information from a confidential informer that associates had told him they had been involved in a break-in, in the area where the appellant and deceased lived, during which a woman had been struck in the head. The informer identified two men as the people involved. These two men were interviewed by the police and denied any involvement. Both men, including Brian Greystone who was said to be the killer, testified before the trial judge on the voir dire to determine whether the informer’s identity should be disclosed. Greystone and his associate denied committing the break-in. As a result, the applicant sought to have the confidential informer testify on the basis that his evidence of what Greystone and his associate said would be admissible under the principled approach to hearsay. Defence counsel suggested that the trial judge first hear the informer in camera in the absence of the applicant and his counsel to determine whether the circumstances in which the statement the informer attributes to Greystone were made would meet the requirements of threshold reliability. The parties later agreed to a somewhat different procedure whereby a senior Crown counsel interviewed the informer. The transcript of that interview was made available to the trial judge, but not the applicant and his counsel. On consent, transcript was provided to me and I have reviewed it.

[6] I have reviewed Dawson J.’s rulings related to this issue; the two most important being reported at [2007] O.J. No. 5457 and [2007] O.J. No. 5460. It seems clear from the trial judge’s second ruling that the informer was mistaken in identifying Greystone and his associate. The trial judge refused to disclose the names of the persons who the informer did have the conversation with because to do so would inevitably result in the disclosure of the informer’s identity. The trial judge was also of the view that the circumstances under which the conversation took place were so unreliable that the conversation would never be admissible under the principled approach to the hearsay rule. Having reviewed the trial judge’s rulings and the transcript of the interview, I cannot say that the trial judge erred. As the trial judge said in his second ruling, the circumstances under which these statements were made were very unreliable. Further, as the trial judge noted at para. 15 of his ruling there was good reason to doubt that the information from the informer relates to the Klymchuk homicide.

[7] The applicant submits that the trial judge misapprehended the innocence at stake exception to the police informer rule. He says that the fact that identification of the names of the parties to the conversation might result in disclosure of the informer’s identity misses the point. If disclosure of the informer’s identity is necessary to establish the accused’s innocence then the privilege must give way. Second, the value of obtaining the informer’s identity did not turn simply on the hearsay conversation. Rather, the defence might have been able to obtain information from the informer that could lead to identification of a viable third party suspect.

[8] Having regard to the material before the trial judge and the manner in which the issue was argued before the trial judge, it is my view that this is a tenuous ground of appeal. As I have said, the trial judge’s ruling that the informer’s statements would not be substantively admissible appears to be correct. On the material that I have reviewed, the possibility that further investigation could result in a reasonable doubt is speculative. As the trial judge said at para. 15 of his ruling, “A substantial element of subjective interpretation of events by the informant is now apparent [as a result of the interview with Crown counsel] and weakens the link between the comments made to the informant and the offence before the court.” While the informer privilege will be set aside in the interests of the accused’s innocence, there must be an evidentiary basis to conclude that the informer possesses information that could raise a reasonable doubt: see R. v. Marshall (2005), 77 O.R. (3d) 87 (C.A.) per Borins J.A. at paras. 101-3.

The Reasonableness of the Verdict

[9] The applicant argues that the verdict was the product of an unreasonable compromise. In considering this ground of appeal I have had the benefit of the charge to the jury and counsels’ closing jury addresses. The theory of the Crown was that only the applicant had a motive for murdering the deceased and the Crown sought to establish his identity largely by proving that he staged the scene. The applicant argues that the jury could not on the one hand be satisfied of the accused’s identity and yet reject first degree murder. He argues that it was impossible for the applicant to have staged the scene after an intentional but spontaneous killing. In other words, the same evidence that established identity also established that the killing was planned and deliberate. The applicant argues that the jury must have rejected the staging theory and what remained of the Crown’s case was not sufficient to found a conviction for murder.

[10] The Crown’s case against the applicant rested on motive, opportunity and the evidence of staging. There was some other circumstantial evidence in the form of some alleged inconsistencies in the applicant’s statements to the police, but this evidence was not particularly strong. There was also some evidence of statements by the applicant prior to the murder suggesting that he did not intend to stay with the deceased any longer. Nevertheless, I tend to agree with the applicant that the staging evidence was crucial to the Crown’s case on identification. As this court said in the first appeal:

It was central to the Crown’s case that the crime scene was staged to make it appear as though there had been a break-in when in fact there had been no break-in. A finding by the jury that the crime scene was staged would go a long way to the conviction of the appellant. On the evidence, he was the only person with a motive to kill Mrs. Klymchuk and a reason to stage the crime scene to make it appear as though there had been a break-in.

[11] In other words, I tend to agree with the applicant that for the jury to convict the applicant of murder they had to be satisfied that he staged the scene. Where I part company with the applicant is the submission that having found the scene to have been staged, the jury was bound to find that the killing was planned and deliberate. This was not the view of the trial judge. He instructed the jury that if the applicant “did manipulate the crime scene to simulate a break-in, but only thought of that after he killed his wife, then this evidence cannot be considered as evidence showing planning and deliberation of her murder”. There was no objection by defence counsel at trial to this direction.

[12] While it was unquestionably the Crown’s theory that the crime scene manipulation was too elaborate to be an afterthought, the jury was not bound to accept that theory. See R. v. Ranger (2003), 1991 CanLII 78 (SCC), 67 C.C.C. (3d) 1 at para. 135.[^1]

[13] I also note that Crown counsel, albeit in passing, did suggest that the jury could convict the applicant of second degree murder. He said the following:

Before the break I suggested to you that the only real question you should have, then, is, when did he decide to do it? Was it impulsive? Did he kill her in the heat of the moment or was this something that he had planned and thought about? It’s possible he may have gone out to the drive shed with Maria to discuss Robyn Mays and their marriage and when he told her she reacted, as her friends said that she would, because she wouldn’t have tolerated infidelity. He may have grabbed her from behind, she went for the door, they struggled briefly, but eventually from the pressure he applied to her neck she fell to the floor unconscious. Maybe, because he thought she was already dead, he decided then to hit her with the axe and then fake a break and enter. That’s certainly a possibility and emotionally it’s more palatable. Emotionally, because of Kristian and Elizabeth, that’s what I think we’d all like to prefer happened; and if that’s what you decide happened and that’s all you decide that happened beyond a reasonable doubt, you would find Mr. Klymchuk guilty of second degree murder.

[14] Admittedly, Crown counsel then went on to develop his theory that the more rational view of the evidence was that this was a planned and deliberate murder.

[15] On the record before me, it would not be unreasonable for the jury to conclude that the crime scene manipulation was an afterthought. As I understand the evidence, approximately two hours elapsed between the last time the deceased was seen alive and the applicant called 911 to report the killing. The staging evidence as reviewed in the charge to the jury would not have taken a great deal of time consisting, as I understand it, of cutting the screen, breaking the window track, placing some footprints on the window frame, moving the snow blower outside and disposing of blood-stained clothing and the footwear used to make the impressions on the window.

[16] I stress that I have reached this conclusion on the very limited record before me, consisting of the charge to the jury, counsels’ addresses and trial counsel’s opinion to legal aid. This was a long and complex trial and it may well be that on a more complete record, this ground of appeal would be considerably more formidable. I can only say that on this record, the ground of appeal is not substantial.

The Public Interest

[17] In R. v. Farinacci (1993), 86 .C.C.C. (3d) 32 (Ont. C.A.) at 47-8, Arbour J.A. considered the public interest as applied to applications for bail pending appeal.

Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability.

[18] In my view, the interest in enforceability presently outweighs the interest in reviewability. The appellant has now twice been convicted of murder. The Crown’s case while circumstantial is not insubstantial. While I cannot say that either ground of appeal is frivolous, they do not appear to be very strong. At this time, the public interest favours denying bail pending appeal. It is only in unusual circumstances, where the grounds of appeal appear to be strong, that this court has released an appellant pending appeal from conviction for first or second degree murder. I have not been persuaded that this is one of those cases.

[19] Accordingly, the application for bail pending appeal is dismissed, but without prejudice to the appellant bringing a further application if the preparation of the transcript is unreasonably delayed and there is further material as to the strength of the grounds of appeal.

Signed: “M. Rosenberg J.A.”

RELEASED: “M.R.” December 16, 2008

[^1]: Where a trial judge, however, puts a different theory of liability to the jury than urged by the Crown, the appellate court must consider two questions. First, is there an evidentiary basis for the alternative theory? Second, if so, was the accused prejudiced by the manner in which the alternative theory was placed before the jury. In this case, the applicant did not suggest before me that he was unfairly disadvantaged. The issue then is whether the verdict was unreasonable because of the lack of evidentiary foundation for second degree murder.