CITATION: R. v. Belic, 2011 ONCA 671
DATE: 20111027
DOCKET: C48959
COURT OF APPEAL FOR ONTARIO
Feldman, Sharpe and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Neven Belic
Appellant
Heather McArthur and Victoria Rivers, for the appellant
Brian McNeely, for the respondent
Heard: October 14, 2011
On appeal from the conviction entered on December 17, 2007 and the sentence imposed on February 6, 2008 by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 76 W.C.B. (2d) 508.
By the Court:
[1] The appellant was convicted of second degree murder and two counts of aggravated assault arising out of an incident at a student pub in Oshawa, Ontario. He was sentenced to life imprisonment and an eighteen-year period of ineligibility for parole. His appeal from sentence was abandoned.
[2] On the night of the incidents in question, the appellant arrived at the pub with several other men in a limousine and initially entered without passing through security. He was stopped and asked to return to the entrance where he was searched and allowed to re-enter. Soon after arriving, the appellant became involved in an altercation with Eugene Moses over a perceived insult. Gunshots were fired and Moses was killed. A friend of the appellant and a security guard were also injured.
[3] The Crown relied on evidence of the appellant’s behaviour before, during and after the shooting. There was evidence that before going out the appellant had shown a friend a handgun that he intended to carry on the night in question. At the pub, the appellant conducted himself in a swaggering and aggressive manner, provoking the altercation that preceded the shooting. Several witnesses testified that they saw muzzle flash in the vicinity of the appellant when the shots were fired. There was considerable evidence of after-the-fact conduct, including the appellant’s flight and incriminating statements he allegedly made to undercover officers while in custody. Additionally, forensic evidence conclusively linked the ammunition found in the dresser drawer in a room where the appellant sought refuge the morning after the shooting, with the handgun and ammunition that were used to kill the deceased.
[4] The appellant did not testify and called no evidence.
[5] The appellant raises three grounds of appeal:
the trial judge erred in his jury instruction with respect to the evidence of the Crown’s firearms expert relied on by the defence on the issue of muzzle flash;
the jury charge was unfair, unbalanced and prejudicial; and,
the trial judge erred in his instruction with respect to post-offence conduct.
1. Firearms expert and muzzle flash evidence
[6] The Crown led the evidence of Shane Staniek of the Centre for Forensic Sciences. Staniek was qualified as an expert in the area of tool mark and firearms identification. He testified that a gun recovered after the shooting was the weapon used to shoot and kill the deceased. He further testified that the marks on the ammunition found in a dresser in a room to which the appellant fled after the incident, also matched the gun used in the shooting.
[7] In cross-examination, defence counsel elicited evidence from Staniek as to the nature of muzzle flash without any objection from the Crown or comment from the trial judge. Defence counsel also advanced the hypothesis that seeing muzzle flash would not enable a witness to identify one person in a group as the shooter. When posing this question, defence counsel used a diagram indicating that the appellant was standing in a group at the time the fatal shots were fired. This diagram, however, was prepared by a witness who did not actually see the muzzle flash.
[8] While Staniek agreed that it would be difficult to attribute the muzzle flash to one person in a group, he added “I don’t know if I can really give any kind of qualified answer to that.” In re-examination by the Crown he stated:
If we’re just dealing with a flash, I’m finding it difficult to really specifically relate it to some one individual. That's really beginning to be outside my area of firearms expertise.
Later in re-examination, he stated:
Well one can infer that between the flash and person, there is a gun, but it's dealing with peoples’ perceptions which I'm not comfortable commenting on.
However, when pressed further by the Crown in re-examination, Staniek repeated that he did not think it was possible to identify the shooter standing in a group of people on the basis of muzzle flash.
[9] In his closing address to the jury, defence counsel placed substantial reliance on Staniek’s evidence in relation to whether the location of muzzle flash could be used to identify the shooter. Defence counsel described Staniek as “a genius” and “brilliant” and submitted:
He will not attribute who the shooter is in terms of the muzzle flash. That is the firearms expert. Whose evidence are we going to rely on? Eye-witnesses in a bar who probably have never seen a flash of a gun before in their lives, [or] a guy whose life is dedicated to that science. That's reasonable doubt.
[10] Before charging the jury, the trial judge asked both counsel to provide him with a written summary of their respective positions to put to the jury. The trial judge read those summaries into his charge verbatim; including defence counsel’s position that Staniek was a “compelling witnesses” who had been “adamant” that a muzzle flash near a person did not necessarily mean that person was the shooter. In articulating the defence position he specifically stated: “[t]his expert's opinion undermines the entire theory of the Crown’s case, and questions the observations of most witnesses as it relates to their perception of the exact location of the shooter.”
[11] The trial judge then made the following comment which is the focal point of this ground of appeal:
With respect to that, I would add the following; I note that Mr. Staniek was not qualified as an expert regarding muzzle flash establishing the location of the shooter. Rather, Mr. Staniek was allowed to provide expert opinion evidence as a firearms and tool marks examiner. The issue of a muzzle flash and the location of the shooter in relation to the muzzle flash, is not part of his expert testimony. Rather, that determination does not require expert opinion and may be determined by you the jurors, as part of your common sense interpretation of the evidence before you.
[12] The appellant submits that the trial judge erred in two respects; first, by ruling that evidence as to muzzle flash was inadmissible as expert opinion evidence; and second, by failing to inform the defence in a timely manner of this ruling thereby undermining the position taken by defence counsel in his closing.
[13] We are unable to accept these submissions.
[14] We see no error on the part of the trial judge in ruling that the significance of muzzle flash evidence as a means of identifying the shooter did not fall within Staniek’s area of expertise. While Staniek was permitted to answer questions on the nature of muzzle flash despite only being qualified as a tool mark and firearms identification expert, he was clearly reluctant to offer expert evidence regarding the capacity of a witness to identify a shooter standing in a group on the basis of muzzle flash. Even if he was competent to give expert evidence on the nature of muzzle flash, it was open to the trial judge to interpret his evidence as stating that he was unable to offer an expert opinion on that matter and equally open to the trial judge to so instruct the jury. Accordingly, we see no error in the impugned portion of the charge as it simply reflects a reasonable interpretation of Staniek’s evidence.
[15] Furthermore, we are not persuaded that the trial judge erred by failing to provide defence counsel with an earlier warning that the jury would be instructed in this manner. The trial judge gave defence counsel a considerable degree of latitude by permitting him to explore the implications of muzzle flash in view of the fact that he was only qualified as an expert on tool mark and firearms identification. However, it does not follow that having given such latitude, the trial judge was compelled to accept counsel’s interpretation of that evidence.
[16] Moreover, given the equivocal and hesitant nature of the evidence defence counsel was able to elicit from Staniek on the issue of using muzzle flash to identify the shooter, the trial judge had no reason to anticipate that defence counsel would interpret the evidence as he did, placing such heavy reliance on it in his closing address. We note here that defence counsel did not provide the trial judge with his written position until immediately before the trial judge commenced his instructions to the jury. It is clear from the exchange between defence counsel and the trial judge mid-way through the jury charge and before he gave the impugned instruction position, that the trial judge was surprised by defence counsel’s position. In response to defence counsel’s objection to the impugned portion, the trial judge stated:
With Mr. Staniek, it would appear to me that you were trying to take evidence that isn't part of what he was qualified to give expert opinion evidence about, and juice it up into being expert opinion evidence. So I'm going to correct it.
[17] Given the manner in which the treatment of Staniek’s evidence by defence counsel unfolded, we are not persuaded that the trial judge erred by failing to rule on the matter earlier or to warn defence counsel in advance of the nature of the impugned instruction.
2. The jury charge
[18] The appellant submits that the jury charge was unfair, unbalanced and prejudicial because the trial judge emphasized evidence favouring the Crown. The appellant objects, in particular, to the trial judge having repeated various portions of the Crown’s incriminating evidence several times, without each time commenting on the appellant’s submissions as to the weakness of that same evidence.
[19] We do not agree with this submission.
[20] In our view, the trial judge did not unnecessarily repeat the Crown’s evidence. Rather, as required, he identified the issues the jury had to decide and related to each of those issues the relevant evidence. This necessarily involved a certain amount of repetition. As we have already noted, the trial judge fully explained the defence position to the jury by reading in its entirety defence counsel's position on the evidence.
[21] In our view, reading the charge as a whole, the jury would have clearly understood that the crucial issue was whether the Crown had been able to prove that the appellant was the shooter. The trial judge gave the jury the defence position on that issue exactly in the language requested by defence counsel.
[22] Moreover, in a case where the accused does not testify and calls no evidence, it is almost inevitable that the judge’s summary of the evidence as it relates to each issue will focus on the evidence led by the Crown.
3. Jury instruction on post-offence conduct
[23] The appellant submits that the trial judge erred by using the then standard instruction on post-offence conduct later criticized by this court in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5. Confronted with that submission, the Crown requested a five-judge panel to permit us to reconsider Hall. That request was denied and therefore Hall governs.
[24] The Crown makes two arguments in response to the Hall point. First, the Crown submits that Hall has been overtaken by a subsequent decision of the Supreme Court of Canada in R. v. White, 2011 SCC 13, 332 D.L.R. (4th) 39. Second, the Crown points out that in any event, the decision in Hall makes it clear, at para. 146, that “[s]tanding on its own, this flaw in the charge would not constitute reversible error.”
[25] We see nothing in White (2011) that undermines, or is inconsistent with, Hall. Indeed, in White (2011), the Supreme Court cited with approval the same passage from R. v. White, 1998 CanLII 789 (SCC), 2 S.C.R. 72, at para. 57, that this court relied on in Hall. We note as well that an application for leave to appeal Hall was dismissed after the release of the Supreme Court’s decision in White (2011).
[26] However, we are satisfied that the Hall error alone would not have led the jury astray and, as counsel for the appellant conceded, standing on its own, it does not require us to set aside the conviction.
Conclusion
[27] Accordingly, the appeal from conviction is dismissed and the appeal from sentenced is dismissed as abandoned.
RELEASED: October 27, 2011 (“K.F.”
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“Robert P. Armstrong J.A.”