Court of Appeal for Ontario

Date: 2019-04-01 Docket: C63438

Judges: Feldman, Fairburn and Nordheimer JJA

Between

Her Majesty the Queen Respondent

and

Christian Chis Appellant

Counsel

Adam Weisberg and Michelle Psutka, for the appellant Jill Cameron, for the respondent

Heard: April 4, 2019

On appeal from: The conviction entered by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury, on April 14, 2015.

Reasons for Decision

[1] Mr. Chis appeals from his conviction for first degree murder. He raises two issues on his appeal. First, he submits that his conviction for first degree murder was an unreasonable verdict. Second, he submits that the trial judge's instructions to the jury on the requisite element of planning and deliberation were flawed. In either case, the appellant submits that the conviction for first degree murder cannot stand and that a conviction for second degree murder should be substituted.

[2] The appellant was convicted of the murder of his neighbour. They knew one another. The neighbour was retired and lived on a farm south of the appellant's residence. The evidence showed that the deceased was hit in the head with an instrument, causing multiple skull fractures and resulting in his death. The deceased's head was discovered in a farmer's field approximately two months after his murder. The rest of the deceased's body has never been found.

[3] The evidence also showed that the victim had a large sum of money in his bank accounts. The trial Crown alleged a motive for the killing: financial gain. The evidence showed that the appellant, along with others, accessed the deceased's bank accounts using his debit cards and associated PINs on the evening of the murder and in the following days.

[4] At trial the appellant testified and denied he was the murderer. The jury had to decide first whether he was the murderer and second, if he was, if the killing was planned and deliberate.

[5] On appeal the appellant does not challenge the jury's finding that he was the killer and that he intended to kill his neighbour. He therefore concedes that he is guilty of second degree murder. The appellant's complaint is solely directed at the finding of guilt for first degree murder. He contends that there was no evidence upon which a properly instructed jury could find beyond a reasonable doubt that the murder involved planning and deliberation. The appellant says that the verdict of first degree murder is therefore unreasonable and we should substitute a verdict of second degree murder. We disagree.

The Test for Unreasonable Verdict

[6] The test for an unreasonable verdict was stated recently in R. v. Mendez, 2018 ONCA 354, where Pardu J.A. said, at para. 20:

A verdict is unreasonable if "a properly instructed jury, acting judicially could not have come to that verdict" [citations omitted].

[7] In our view, it was open to the jury, on the evidence, to find that this murder was planned and deliberate. There was evidence from which the jury could infer that the date of the murder was June 26, 2011. A witness testified that the appellant had approached him to ask about facilitating contact with other people who might be in a position to use the fraudulent bank cards. Although that witness was a Vetrovec witness, it was up to the jury to decide what weight to give to his evidence. We agree with the respondent that there was some evidence upon which the jury could infer that the appellant's initial approach to that witness came about a week before the murder. Phone records demonstrate that the appellant was, in fact, in touch with that witness in the week before the murder.

[8] In his closing submissions, defence counsel (not counsel on appeal) appears to have accepted that the witness testified to that effect. On that basis alone, the jury could have come to the conclusion that this was a first degree murder.

[9] In addition to the evidence referred to above, further support for planning and deliberation is found in the nature and circumstances of the murder. There was evidence that the appellant told a witness that he had beaten and kicked the victim in order to obtain his PINs for the debit cards. That statement accorded with the forensic pathology evidence. The jury could find that killing the victim, so that he could not alert the police or the banks to the theft of his cards by the appellant, was a necessary part of any plan to use those cards to take the deceased's money.

[10] This ground of appeal fails.

The Trial Judge's Instructions on Planning and Deliberation

[11] As for the second ground of appeal, there is no issue respecting the trial judge's legal instruction to the jury on planning and deliberation. Rather, the appellant says that the trial judge failed to properly relate the evidence to the element of planning and deliberation. In her instructions to the jury on the evidence relating to planning and deliberation, the trial judge said:

I have already reviewed with you the evidence about Mr. Gavin's bank accounts and the debit cards linked to them; the cell phone contact between Mr. Chis and Netis Patel on June 21st, 2011; Mr. Chis's utterance to Nayan Patel that he killed someone for the debit cards, along with Mr. Chis's denial that he made that utterance; Mr. Chis's utterance to Mr. Sawh-Bhawanie that he punched and kicked a person until he got the PIN numbers for the debit cards, along with Mr. Chis's denial that he made that utterance; the absence of activity on Mr. Chis's cell phone on the afternoon and early evening of June 26th, 2011; the date and time of Mr. Gavin's murder; the movement of Mr. Chis's cell phone south to Scarborough and Markham on the night of June 26th, 2011; Mr. Chis's cell phone calls on the night of June 26th, 2011, to the phone used by Mr. Sawh-Bhawanie; the use of Mr. Gavin's debit cards by Mr. Shanmuganathan on the night of June 26th, 2011; the use of Mr. Gavin's debit cards thereafter, including by Mr. Chis; the evidence of Mr. Shanmuganathan and Mr. Patel that they gave money they withdrew to Mr. Chis, along with Mr. Chis's denial that he was the person providing the cards to the others to use.

You can consider all of this evidence in deciding whether Crown counsel has proven beyond a reasonable doubt that the murder of Mr. Gavin was planned and deliberate on the part of Mr. Chis.

[12] The appellant says that the above summary was too cursory. The trial judge needed to explain to the jury what evidence they should consider, how it might inform planning and deliberation, and how it might equally support an inference of nothing more than a murder committed in the heat of the moment. We disagree.

[13] The trial judge had referred in detail to those same pieces of evidence earlier in other parts of her charge. The jury, therefore, would have been completely familiar with the details of that evidence and how it related to the issues that they had to determine. Indeed, the trial judge reminded the jury that she had already reviewed all of that evidence with them. We would also note that this specific objection was not made by defence counsel at the pre-charge conference – even though the instruction on planning and deliberation was the subject of discussion.

[14] It is not necessary that evidence be repeated in all its details each time it relates to a different issue in jury instructions. One objective of jury instructions is to give a clear, but concise, recitation of the evidence – not a constant repetition of it. That observation is consistent with the concern about ever lengthening jury charges. As Moldaver J. observed in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 42:

It is apparent that taming the unchecked expansion of jury charges is not merely advisable – it is a legal necessity.

[15] In our view, the instructions to the jury, read as a whole, provided the jury with the tools required to determine the issue of planning and deliberation. This ground of appeal also fails.

Conclusion

[16] In the end result, the appeal is dismissed.

K. Feldman J.A. Fairburn J.A. I.V.B. Nordheimer J.A.