COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Belisle, 2012 ONCA 303

DATE: 20120510

DOCKET: C52278

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Timothy Belisle Appellant

Candice Suter, for the appellant

Gillian Roberts, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury, on April 15, 2009.

Gillese J.A.:

[1] After a trial by jury, Timothy Belisle (the appellant) was found guilty of first degree murder in connection with the fatal stabbing of Norman Anderson (Mr. Anderson or the victim) on January 26, 2008. Mr. Belisle was sentenced to life imprisonment with no parole eligibility for 25 years.

[2] Mr. Belisle appeals against conviction.

[3] At the conclusion of the oral hearing of the appeal, the court advised counsel that the appeal was dismissed and that reasons would follow. These are the promised reasons.

FACTS IN BRIEF

[4] On the day in question, the appellant was drinking and socializing with his friends, Brent Tester and Yvonne Barry. At some point during this time, Mr. Anderson’s name was mentioned. According to Ms. Barry, the appellant reacted by becoming very angry and reaching for a knife. However, he calmed down. Later that day, the appellant, Mr. Tester and Ms. Barry decided to visit Mr. Anderson at his home, where he lived with his common-law spouse, Jean Brunetti. They drove there in Mr. Tester’s car.

[5] Initially the visit was friendly. Everyone gathered in Mr. Anderson’s garage where he was working on fixing a car. Then an altercation took place in which Mr. Anderson suffered a single fatal stab wound. There was no tension among the people in the garage nor were any harsh words spoken before the victim said “asshole” or “Fuck you, Tim” and then made a loud moaning noise.

[6] Mr. Tester and Ms. Brunetti tried to pull the appellant off of the victim. Mr. Tester noticed that the appellant held a bloody knife; he tried to pull the appellant’s right arm (knife arm) back. Ms. Brunetti jumped on the appellant’s left side. When Mr. Tester managed to pull the appellant’s right arm back, she saw that the appellant held a knife which was covered in blood.

[7] Mr. Tester, Ms. Barry and Ms. Brunetti testified. The appellant did not testify or call any evidence at trial.

[8] After handing out a draft of his charge and giving counsel time to consider it, the trial judge held an extensive pre-charge conference. At the pre-trial conference, defence counsel asked that the defences of intoxication and provocation be left with the jury. He did not ask for the defence of accident to be left with the jury.

[9] The trial judge ruled that the defence of intoxication should go to the jury but found that there was no air of reality to a defence of provocation.

[10] Following the charge to the jury, neither counsel raised any objections. When the trial judge asked for comments, defence counsel responded with “Well done, Your Honour, thank you very much”. The trial judge answered by asking specifically if there were any comments respecting the contents of the charge. Defence counsel replied that he had no submissions.

THE GROUNDS OF APPEAL

[11] For the first time on appeal, the appellant argues that the trial judge erred in failing to:

1. give the jury an instruction on post-offence conduct;
2. give a Vetrovec instruction in relation to the evidence of Mr. Tester and Ms. Barry;
3. leave the defence of accident with the jury;
4. properly instruct the jury on the elements of manslaughter;
5. adequately charge the jury on the additional requirements of causation applicable to first degree murder;
6. leave with the jury Ms. Barry’s belief that the victim had a reputation for selling drugs.

[12] The court called on the Crown in respect of only the sixth ground.

Post Offence Conduct

[13] The appellant complains that the absence of an instruction on post-offence conduct gave rise to a significant risk that the jury would misapply the evidence. The “conduct” in question consisted of two statements that the appellant made on the date in question.

[14] The first statement was made when, shortly after the stabbing, Ms. Brunetti went into the living room and attempted to call 911. The appellant asked who she was phoning and Ms. Brunetti answered to the effect that they had to phone for an ambulance. The appellant said, “You’re not phoning anyone, he’s dead”. Ms. Brunetti screamed, “He’s dead?” and the appellant replied, “No, not yet”.

[15] In its closing address, the Crown submitted that this amounted to evidence that the appellant was capable of forming the intention to have Mr. Anderson die, and that it provided evidence of planning and deliberation.

[16] The appellant made the second statement shortly after interfering with Ms. Brunetti’s attempt to call 911, when he returned to the garage. According to Mr. Tester, the appellant said to him, “Shut up, or I’ll kill you too.”

[17] The Crown submitted that the second statement was evidence of intention that the appellant was prepared to kill Mr. Tester just as he had killed Mr. Anderson.

[18] A warning is required when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 22. In such circumstances, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour and may mistakenly leap from such evidence to a conclusion of guilt: see White, at para. 23.

[19] The Crown did not rely on either of the two statements for a “consciousness of guilt” inference. Rather, as indicated above, it relied on the evidence for clear and specific inferences related to intention. In these circumstances, I do not see that the evidence could be misused, so no special warning was required.

[20] Counsel’s considered position to not request an instruction on post-offence conduct or to complain about its absence supports the conclusion that no such instruction was required in this case.

A Vetrovec Instruction

[21] Yvonne Barry and Brent Tester were both important Crown witnesses in that they provided evidence of the events around and during the stabbing which supported the Crown’s case for murder. However, their evidence was confirmed by the evidence of Jean Brunetti and the forensic evidence. Moreover, their evidence was important to the defence because the evidence of drinking came from them and that evidence was essential to the defence of intoxication.

[22] As “mixed witnesses” – that is, witnesses called by the Crown but who provide evidence that assists the defence – it was a matter for the trial judge’s discretion as to whether to give a Vetrovec warning: see R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 27. I see no basis to interfere with the exercise of that discretion.

[23] Had the trial judge given such an instruction, it would have hurt the defence in this case, given that it could have neutralised the evidence of drinking. Instead, the trial judge carefully reviewed the two witnesses’ evidence and gave careful instructions on how to assess credibility and reliability, and the significance of prior inconsistent statements. In so doing, the trial judge gave the jury the tools they needed to properly scrutinize Ms. Barry and Mr. Tester’s evidence while not neutralizing its ability to support the defence. Again, the failure of defence counsel to request a Vetrovec warning or to complain about its absence is telling.

The Defence of Accident

[24] I see no air of reality to the defence of accident. Unsurprisingly, the defence did not ask that this defence be left with the jury.

[25] The appellant did not testify or call any evidence so any air of reality would have had to have come from the Crown’s case. The evidence of the three witnesses to the stabbing was consistent: there was no fight or even tension until the stabbing and the stabbing occurred before the intervention of any of the witnesses, who tried to get the appellant away from the victim. Furthermore, the nature of the stabbing itself suggests an intentional act. The appellant brought a large knife to the scene, which he kept concealed until the attack. He stabbed the victim only once. The stab wound began at the victim’s mid to lower back, went between several ribs, through the lower lobe of the right lung, and ended at the spinal column. The knife had a 19 cm. blade that went through the victim’s winter coat and clothing and 18 cm. into his body. As well, the statements that the appellant made after the stabbing, discussed above in the section on post-offence conduct, suggest the stabbing was intentional.

Manslaughter

[26] The trial judge followed the model jury instructions on first degree murder. Accordingly, he instructed that if the jury concluded that the appellant caused the victim’s death by an unlawful act but did not have the intent for murder, the proper verdict was manslaughter.

[27] The appellant complains that the instruction on manslaughter was inadequate because it did not refer to the essential elements of the offence of manslaughter. I would not accept this submission.

[28] The trial judge did not explicitly instruct the jury that the unlawful act must be objectively dangerous in that a reasonable person in the circumstances would think it likely to cause a risk of harm that is more than brief or minor in nature. Instead, he instructed the jury that the unlawful act was the stabbing, an obviously objectively dangerous act. The instructions were consistent with the evidence in the case, the way in which it was argued, and the real issue, which was the appellant’s intention.

Causation

[29] The appellant complains that the trial judge failed to charge the jury adequately as to the requirement of causation because he failed to instruct the jury that they must be satisfied beyond a reasonable doubt that the appellant participated in the murder in such a manner that he was a substantial cause of Mr. Anderson’s death and that there was no intervening act of another which resulted in the appellant no longer being substantially connected to Mr. Anderson’s death.

[30] A single test – the Smithers test – for causation applies to all forms of homicide: the impugned act must be a “significant contributing cause” of death, beyond something trifling or minor: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 71-72. It is only in the context of a constructive first degree murder under s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46, that there is an additional requirement of causation: see Nette, at para. 73. This was a planned and deliberate first degree murder under s. 231(2) of the Criminal Code, not a constructive first degree murder. The trial judge followed the model jury instructions and correctly instructed the jury on the requirements of causation in this case.

[31] In any event, causation was not in issue in this case. There was never any question that the stabbing killed Mr. Anderson. The issue was whether the Crown had proved that the act of stabbing was intentional and done with the requisite intent for murder.

The Victim’s Reputation

[32] Ms. Barry gave evidence that Mr. Anderson had a reputation for being a drug dealer. The trial judge instructed the jury that the evidence had no evidentiary value as it was hearsay, since Ms. Barry was only recounting what she had heard. He stated that it was not admissible to prove the truth of its contents or for any other purpose.

[33] The appellant submits that this evidence ought not to have been entirely excluded from the jury’s consideration since it was relevant not for the truth of its contents but in establishing Ms. Barry’s beliefs about whether the victim was someone from whom she could expect to obtain drugs. This evidence, it was argued, could have provided an explanation for why the appellant and the others decided to visit the victim. That is, the evidence was significant to the issue of the appellant’s intent.

[34] In my view, the charge was correct in the circumstances of this case. At best, the evidence could only have been admissible in relation to Ms. Barry’s belief that she could buy drugs from the victim. However, that was not Ms. Barry’s evidence, as she consistently denied that she asked the victim for drugs or that she had any intention of doing so. (The evidence that she asked to buy drugs from the victim came from Ms. Brunetti.)

[35] In any event, it was the appellant’s intention, not Ms. Barry’s, that was at issue. As the evidence of Ms. Barry’s beliefs went to her state of mind and not that of the appellant, I see no error in the trial judge’s instruction to the jury on this point.

DISPOSITION

[36] Accordingly, I would dismiss the appeal.

Released: May 10, 2012 (“M.R.”)

“E.E. Gillese J.A.”

“I agree M. Rosenberg J.A.”

“I agree Alexandra Hoy J.A.”