COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Weese, 2016 ONCA 449

DATE: 20160609

DOCKET: C53551 & C56772

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Lee Weese

Appellant

Counsel:

Kyle Lee Weese, appellant in person

Enzo Rondinelli, duty counsel

Michael Bernstein, for the respondent

Heard: May 12, 2016

On appeal from the convictions entered on October 25, 2010 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on March 31, 2011.

ENDORSEMENT

[1] Kyle Weese was found guilty by a jury of second degree murder and four counts of aggravated assault. He was sentenced to life imprisonment with parole eligibility set at 22 years. He appeals against both conviction and sentence.

Background

[2] The appellant was at the Duke of York pub in Toronto with his girlfriend. He got into an altercation with another man, Addy Reddick, after his girlfriend expressed annoyance that Reddick had touched her.

[3] The appellant and Reddick were told to take their dispute outside and did so. Although words were exchanged, no fight occurred. Reddick returned to the bar but the appellant did not.

[4] Shortly afterwards, a male with a semi-automatic handgun fired at least 14 bullets outside the bar. Six people were hit, including the appellant’s brother. An innocent bystander, Bailey Zaveda, was hit six times and died of her injuries.

[5] The appellant was charged with the murder of Ms. Zaveda and four counts of aggravated assault. He was not charged in the shooting of his brother. The sole issue in this case was the identity of the shooter.

[6] The appellant testified at trial and denied being the shooter. His evidence was that he left the bar and was walking away when he heard the shooting. He went to a house, called a cab, and then went to his girlfriend’s home to complete a drug deal. The appellant testified he was driven to Lindsay that night in accordance with arrangements he had made earlier that day.

[7] Four witnesses identified the appellant as the shooter. These included Nathan Reddick, Addy Reddick’s uncle, and Dwight Marshall, Addy Reddick’s cousin.

Conviction

[8] Duty counsel raises four arguments against conviction on behalf of the appellant.

[9] First, duty counsel submits that the trial judge bolstered Nathan Reddick’s credibility in her charge to the jury by referring to the consistency of Reddick’s testimony at the preliminary inquiry with his testimony at the trial. The trial judge stated:

So when you consider how much or little you believe and rely upon this evidence to decide the case, you take into account the fact that he’s awaiting trial on another charge. However, you must also remember that he gave evidence at the Preliminary Inquiry before those charges in Peel even arose. And his evidence at the Preliminary Inquiry, we are told, was consistent with his evidence here.

[10] Duty counsel submits that these remarks invited the jury to rely upon Nathan Reddick’s testimony because it was consistent with his earlier testimony. Although prior inconsistent statements are admissible in challenging the credibility of a witness, prior consistent statements are an irrelevant consideration and duty counsel submits that the trial judge’s remarks were a serious misdirection.

[11] We disagree.

[12] The trial judge’s remarks were made in the context of a defence suggestion that Nathan Reddick’s evidence was fabricated to help his situation with the police concerning charges against him in Peel. The trial judge did no more than to point out that Reddick’s evidence was consistent with statements he made at the preliminary inquiry, which occurred prior to the Peel charges.

[13] Second, duty counsel submits that Detective Giroux’s evidence constituted impermissible oath-helping. Two of the witnesses who testified to seeing the shooting, Dwight Marshall and Nathan Reddick, had lied to the police in saying that they did not know who Addy Reddick was. Subsequently they acknowledged that they did know him, but no action was taken against them.

[14] The trial judge noted that the witnesses had lied and addressed Detective Giroux’s actions as follows:

Detective Giroux testified that he had not been misled by the statement, because he’d learned of Addy from other sources. Detective Giroux said they apologized, fully cooperated and made themselves available to the police. He determined – he, Detective Giroux – determined on these facts that it was not in the interests of justice to pursue the matter of the original lie under oath.

[15] Duty counsel submits that the jury should have been instructed that they could not use Detective Giroux’s evidence for the purpose of oath-helping.

[16] We disagree.

[17] The rule against oath-helping renders inadmissible “evidence adduced solely for the purpose of proving that a witness is truthful”: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 667. In our view, the rule has no application here. Detective Giroux did not testify as to the honesty or veracity of either Marshall or Reddick. His evidence came in cross-examination, in explaining why neither Reddick nor Marshall was charged with obstruction of justice or perjury. This was not oath-helping. In any event, we are satisfied that the trial judge properly instructed the jury concerning its responsibility in assessing the credibility of the witnesses.

[18] Two additional arguments in duty counsel’s factum were not the subject of oral argument. First, duty counsel submits that the trial judge failed to properly instruct the jury concerning the use they could make of evidence of post-offence conduct, citing this court’s decision in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal to SCC refused, [2010] S.C.C.A. No. 499. Second, duty counsel submits that the trial judge erred in failing to alert the jury sufficiently to the dangers associated with eyewitness identification, especially from a witness who seemed confident about his identification.

[19] We reject these submissions.

[20] Hall is concerned with the risk that jurors might too easily infer guilt from post-offence conduct. However, as set out in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 23-24, the risk discussed in Hall can be addressed by the trial judge informing the jury as to any other explanations for post-offence conduct, and instructing them to reserve final judgment about the meaning of the conduct until all of the evidence has been considered. That occurred here. Although the decision in Hall was released following the trial in this matter, we note that trial counsel (not Mr. Rondinelli) expressed no concerns about the trial judge’s charge, and in our view, post-offence conduct was not significant in establishing the appellant’s guilt in any event.

[21] As for the eyewitness evidence, the trial judge carefully reviewed the evidence and cautioned the jury about the dangers of mistaken identification. A draft of her charge was vetted by trial counsel and no objection was made to her instructions.

[22] Having reviewed the record in this matter, we conclude that there is no basis to find any error in the trial judge’s handling of the trial. The appeal against conviction must be dismissed.

Sentence

[23] The trial judge had a discretionary power under s. 745.4 of the Criminal Code to increase the period of parole eligibility beyond the ten-year period, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendations of the jury. The trial judge’s discretion had to be exercised in accordance with s. 718.2(e) of the Criminal Code and the principles set out in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688.

[24] Duty counsel makes two submissions on behalf of the appellant. First, he submits that the trial judge failed to give adequate weight to the appellant’s circumstances as an aboriginal offender in setting the minimum period of parole eligibility. Second, the trial judge failed to give adequate weight to the jury’s recommendations regarding the minimum period of parole eligibility. Duty counsel submits that minimum parole eligibility period should have been set at 16 years.

[25] We disagree.

[26] The Gladue principles do not apply in a mechanical fashion, nor do they require reductions in sentences for offences committed by aboriginal persons. On the contrary, as the Court noted in Gladue at para. 79, “Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.”

[27] This was a very violent and serious crime and the trial judge was required to consider a number of factors, including the appellant’s circumstances as an aboriginal offender, in crafting the appropriate sentence.

[28] We are satisfied that she did so. The trial judge clearly understood the appellant’s difficult personal circumstances, which included physical abuse, drug abuse, and led to a life of crime. She did not make any of the mistakes identified in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and in particular did not require the appellant to establish a causal link between his circumstances and the offences he committed. There is no basis to interfere with her conclusion.

[29] As for the second submission, the trial judge did not fail to give adequate weight to the jury’s recommendations regarding the minimum period of parole eligibility. The jury’s recommendations ranged from 10 to 25 years, with five jurors making no recommendation. The trial judge was simply required to consider the jury’s recommendations as one of the relevant factors, and it is clear that she did so.

[30] The fact that she set the parole eligibility period at the higher range of the jurors’ recommendations is of no moment. As the Supreme Court held in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46, “[a] variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.”

[31] The circumstances of this case can only be described as egregious. The appellant opened fire with a semi-automatic weapon outside a bar. Six people were injured, including the appellant’s brother, and an innocent bystander was killed. The appellant continued shooting even after being informed that he had shot Ms. Zaveda. He displayed a wanton disregard for human life.

[32] The appellant has a lengthy record that includes violence and a previous shooting. That, coupled with the trial judge’s finding that the appellant showed “no possibility of rehabilitation, a complete disregard for court orders and poses a significant risk to the safety of the public”, amply justifies her decision to impose a 22-year minimum parole period. The trial judge made no errors and there is no basis to interfere with her decision.

Disposition

[33] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”