Court File and Parties

CITATION: R. v. Klymchuk, 2011 ONCA 258

DATE: 20110405

DOCKET: C49193

COURT OF APPEAL FOR ONTARIO

Moldaver, Gillese and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kirk Klymchuk

Appellant

Counsel: Anil K. Kapoor and Senema Ozkin, for the appellant Deborah Krick and Dena Bonnet, for the respondent

Heard and released orally: March 30, 2011

On appeal from the conviction entered on May 16, 2008 and the sentence imposed on May 30, 2008, by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant raises three grounds of appeal: unreasonable verdict, an error in the charge in relation to second degree murder, and issues regarding the disclosure of information provided by a confidential informant.

[2] Before addressing the various grounds of appeal, we wish to make the general observation that in our view, the appellant received a fair trial. He was ably represented by experienced counsel and the learned trial judge ensured that the jury only heard evidence that was properly admissible. The charge to the jury was a model of fairness and clarity and the trial judge presented the appellant’s case fully and in its most favourable light. It is against that backdrop that we turn to the first ground of appeal.

[3] Regarding the first ground, the appellant argues that the verdict is unreasonable on the basis that the evidence could not and did not support a verdict of second degree murder.

[4] In support of this ground, the appellant submits that in view of the jury’s rejection of the planning and deliberation necessary for first degree murder, it must be accepted that the appellant did not pre-plan the staging. That being so, the appellant contends that it would have been impossible for him to plan the staging and carry it out in the two-hour time frame that was available to him between approximately 9:10 p.m. and 11:00 p.m., when he called 911.

[5] For the purpose of this argument, the appellant is prepared to accept that after 9:10 p.m., when the neighbour left his home, the appellant’s wife changed into different clothes and went to the drive shed to train her dog. After that, on the jury’s verdict, the appellant would then have gone to the drive shed, argued with his wife and killed her. After the killing, he would have had to:

(a) formulate and implement the plan to stage a break in; (b) place the glove impression on his wife’s back; (c) open the roll-up door to the shed and move the snow blower outside; (d) place shoe impressions on the window and the mat; (e) remove his prints; and (f) dispose of his bloodstained clothing, the shoes he used to leave the footprints and the instrument he used to cut the window screen.

[6] Given the extensive police search that failed to uncover any of the material referred to in subsection (f), the appellant would have had to drive somewhere to dispose of it without leaving any trace of his having done so. The appellant argues that while he conceivably could have implemented the plan, there was insufficient time for him to have devised and carried it out, absent pre-planning.

[7] Related to this, the appellant argues as his second ground of appeal that the trial judge erred in failing to bring the timing issue to the jury’s attention.

[8] We would not give effect to either ground. In our view, they are very much intertwined. It was open to the jury to find that the appellant would have been able, in the approximate two-hour window available to him, to kill his wife and stage the scene without pre-planning. That position was put to the jury by Crown counsel without objection from the defence. Indeed, experienced defence counsel at trial raised no concerns about the availability of second degree murder on this record; nor did he request the trial judge to provide the jury with any further direction on the timing issue. Rather, having been provided with the charge, he took no issue with its contents. The charge itself, as noted, was a model of fairness. The trial judge carefully reviewed all of the pertinent evidence on the issue of staging and we have no doubt that the jury would have been alive to the question of timing, as well as all of the other factors that bore on that subject.

[9] We acknowledge that at trial, the Crown maintained, as its primary position, that the appellant committed first degree murder. We also recognize that on the evidence, if the jury concluded that the appellant was the killer, first degree murder was potentially a more likely verdict than second degree murder. That said, everyone, including the appellant, accepted that second degree murder was a viable option and that it should be left to the jury. In the circumstances, it would appear that this enured to the appellant’s benefit.

[10] With respect to the third ground of appeal, the appellant argues that the trial judge erred in failing to order the production of the information provided by the confidential informant. He maintains that once the trial judge decided that the threshold test for innocence at stake had been met, if there was any link at all to the Klymchuk murder, then the trial judge was required to order production of the information to which the confidential informant was privy. In the appellant’s submission, the trial judge was not entitled to conclude that the second stage of the innocence at stake test had not been met on the basis that the information which the informant had was inadmissible.

[11] It is clear from his reasons that in assessing the second stage of the innocence at stake test and finding that it had not been met, the trial judge did not rest his conclusion solely on the admissibility of the informant’s information. Rather, admissibility was simply one of several factors that he properly took into account in assessing whether the information in question was “likely to raise a reasonable doubt as to the guilt of the accused”. See R. v. Marshall, 2005 30051 (ON CA), [2005] O.J. No. 3549 (C.A.), R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 (S.C.C.), and R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185 (S.C.C.).

[12] In the course of his rulings, the trial judge expressed real concern that the confidential information related to a different killing, one in which property was actually stolen. In addition, he noted the difference in the identity of the purported declarants, a substantial element of subjective interpretation by the informant and a lack of reliability in respect of the information he received. On that basis, he concluded that the second stage of the innocence at stake exception to informant privilege had not been established.

[13] We see no error in the trial judge’s analysis or conclusion. Acceding to the appellant’s submission on this point would effectively emasculate the confidential informant privilege.

[14] Counsel for the appellant did not pursue in oral argument his written submission that there was an error in the process followed by the trial judge in respect of the confidential informant issue. Regardless, we see no merit in this submission. Without finally deciding the matter, if anything, the trial judge’s offer to have amicus appointed before the in-camera hearing in which the informant provided further information may, in the circumstances, have been overly favourable to the defence.

[15] Accordingly, the appeal is dismissed.

Signed: “M. J. Moldaver J.A.”

“E.E. Gillese J.A.”

“ S.E. Lang J.A. ”

RELEASED: “MJM” April 5, 2011