COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Pandurevic, 2020 ONCA 798
DATE: 2020-12-11
DOCKET: C63975
Doherty, Roberts and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marko Pandurevic
Appellant
Paul J.I. Alexander, for the appellant
Benita Wassenaar, for the respondent
Heard: November 24, 2020 by videoconference
On appeal from the conviction entered by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury, on May 17, 2013.
REASONS FOR DECISION
[1] On May 17, 2013, the appellant was convicted of the second degree murder of Dmitry Savenkov and was subsequently sentenced on June 7, 2013 to life imprisonment with a ten-year parole ineligibility period.
[2] The appellant’s main grounds of appeal are that the trial judge erred by admitting as voluntary the statement he made to the police following his arrest and by failing to give an adequate jury instruction on self-defence. He requests the conviction be overturned and seeks a new trial.
[3] At the close of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.
Brief Factual Overview
[4] The appellant and Mr. Savenkov lived in the same apartment building. The appellant testified that Mr. Savenkov, who was much larger than the appellant, had subjected him to several weeks of physical and verbal harassment. The building’s security footage showed that shortly before noon on July 31, 2010, the appellant was in the lobby of the apartment building. The appellant testified he was waiting for his grandfather. During this time, Mr. Savenkov was in the elevator, and the appellant testified that Mr. Savenkov called him a “goof” once the elevator doors opened. The appellant then angrily confronted Mr. Savenkov before the latter could exit the elevator. The two tussled in the elevator and the fight spilled over into the lobby. The appellant stabbed Mr. Savenkov with a knife that he said he had been carrying as protection against Mr. Savenkov. During the altercation, Mr. Savenkov received two stab wounds. Not realizing the extent of his injuries, Mr. Savenkov continued to punch the appellant, and then exited the building, collapsing in the parking lot. He died shortly thereafter. In the meantime, the appellant returned upstairs toward his apartment on the sixth floor, disposing of the knife en route in the garbage chute on the third floor. After speaking with his grandparents, the appellant testified that he ran down the stairs of the west end of the building, avoiding the lobby where the altercation occurred, and ultimately attended at a hospital for treatment of his own wounds from the altercation with Mr. Savenkov.
[5] With his mother’s assistance, the appellant flew that night to Bosnia, unaware at that time of Mr. Savenkov’s death. The appellant testified that roughly a week after his arrival in Bosnia, he discovered that Mr. Savenkov had died. He voluntarily returned to Canada six months later. Upon his arrival at the airport on February 6, 2011, he was arrested by police for the first degree murder of Mr. Savenkov and given his rights to counsel and standard caution. The police immediately provided him with the opportunity to speak privately with his counsel and mother who had also come to the airport. He was then escorted by the police to the police station and interviewed for 1 hour and 22 minutes in what is referred to as a “soft interview room”, which is normally used for interviews with children. He was given water and told he could request at any time to leave the interview room or to use the phone to make a call. During the interview, the police investigators reiterated several times the appellant’s right to remain silent. While the appellant indicated numerous times that he did not wish to speak to police or respond to their questions without his lawyer present, he spoke often throughout the interview to offer his version of the incident.
Trial Proceedings
[6] At trial, the appellant opposed the respondent’s application to admit his statement to the police as a voluntary statement. The trial judge allowed the respondent’s application.
[7] In his supplementary reasons regarding the voluntariness ruling, dated May 31, 2013, the trial judge carefully reviewed the entire record of the appellant’s statement to the police and was satisfied beyond a reasonable doubt that the statement was voluntary: R. v. Pandurevic, 2013 ONSC 3108. Among other relevant factors, he considered and rejected the appellant’s arguments that the police ignored his numerous requests to remain silent and offered improper inducements to encourage him to speak against his will. The trial judge was expressly alive to the fact that the police persistently questioned the appellant, notwithstanding his many assertions to remain silent. However, he found that the police treated the appellant with courtesy and respect, did not create an oppressive atmosphere, reconfirmed several times his right to remain silent, and did nothing improper to persuade the appellant to speak with them.
[8] Since there was no question that the appellant had fatally stabbed Mr. Savenkov with the knife he had been carrying, the appellant’s defence at trial turned on the question of whether he had acted in self-defence. At the appellant’s request, the trial judge instructed the jury to apply retrospectively the amended self-defence provisions under s. 34 of the Criminal Code, R.S.C. 1985, c. C-46.[^1]
[9] After two days of deliberation, the jury found the appellant guilty of second degree murder.
Issues
[10] The appellant submits the trial judge made the following reversible errors that warrant the conviction to be overturned and justify a new trial:
i. He erred in finding that the appellant’s statement to police was voluntary, given the atmosphere of oppression that the police created by ignoring his multiple assertions of his right to silence and by improperly inducing the appellant to make a statement.
ii. His jury instruction on the law of self-defence was inadequate in that it undermined the appellant’s reliance on self-defence if the jury found he was the initial aggressor.
Analysis
(i) The appellant’s statement to police was voluntary
[11] There is no issue that the trial judge considered and applied the correct factors in determining the voluntariness of the appellant’s statement. As the trial judge stated at para. 2 of his reasons,
There is no dispute with respect to the nature and incidence of the burden of persuasion in relation to voluntariness. In order for a statement made by an accused person to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the statement was obtained in oppressive circumstances, whether the maker of the statement had an operating mind, and whether the police employed improper trickery. These concerns are not separate tests but rather factors tha[t] may operate together to undermine confidence in the voluntariness of what was said to the police. [Emphasis added.]
[12] The appellant submits that the trial judge erred in failing to find that the investigators offered an improper quid pro quo of possible clemency to the appellant in exchange for a statement. Further, the appellant maintains that the police never had the intention to charge him with anything but first degree murder, regardless of what he told them, as the security footage of the apartment building laid the groundwork for their theory of first degree murder.
[13] We do not accept these submissions. At paras. 18-22 of his reasons, the trial judge examined the same allegations of inducement that the appellant renews here. He concluded, correctly in our view, that it was not an improper inducement for the police to say that if the appellant gave them exculpatory information in relation to his role in the incident, they would look into whether it was true, and that this might assist the appellant in relation to the charge of murder. As the trial judge noted, this was “a straightforward and accurate statement of what the duty of the police would be with respect to any information that [the appellant] chose to provide them.” There is no support in the record for the appellant’s submission that the police never had any intention to investigate what he told them, nor was this suggestion put to the police during cross-examination on the voluntariness voir dire.
[14] While the appellant agrees that the police were calm and polite, he submits that they nevertheless created an oppressive atmosphere during the interview. Notably, he indicates that they brushed aside his approximately 69 assertions during the 1 hour and 22-minute interview that he did not wish to speak to the police except through his lawyer and dangled a false promise of access to counsel.
[15] We disagree. As the trial judge noted, the appellant was never in doubt about his right to silence, which “quickly became selective”, in that he appeared to choose when to speak to advance his position and when not to respond to a question he did not wish to answer. Moreover, the police never made any false promises to the appellant about speaking to his lawyer. Rather, they told him at the outset of the interview that he could request at any time to leave the interview room or to use the phone if he wished to do so. The appellant never asked to leave the interview room and, as the trial judge also noted, after the police indicated that the interview was concluded, he prolonged the interview by asking the police what they thought of his circumstances and by engaging in further discussion.
[16] We find no error in the trial judge’s determination that the appellant’s statement to the police was voluntary, which is amply supported by the record and is entitled to deference on appeal.
(ii) The trial judge’s jury charge on self-defence was adequate
[17] The trial judge devoted paras. 84-200 of his jury charge to the question of self-defence. He correctly explained to the jury the availability of the defence of self-defence and, at para. 86 of his charge, that the appellant was not guilty of any offence arising from his use of the knife against Mr. Savenkov if all the conditions of s. 34(1) of the Criminal Code were present, as he summarized them in relation to the appellant:
i. the appellant believed on reasonable grounds that force was being used against him;
ii. he used the knife for the purpose of defending or protecting himself from the use of force; and
iii. his use of the knife was reasonable in the circumstances.
[18] The trial judge explicitly instructed the jury that it was not the appellant’s responsibility to prove that the three elements of the defence were present. Rather, the burden was on the respondent to prove beyond a reasonable doubt that at least one of the three elements of the defence was not present.
[19] The appellant takes issue only with the trial judge’s instructions on the third element of the defence. While the appellant agrees that the jury instruction on self-defence was good overall, he maintains the trial judge’s instructions on the third branch of the test concerning reasonableness were unclear and erroneous. According to the appellant, if the jury found he was the initial aggressor in the altercation with Mr. Savenkov, the trial judge’s instructions left it open to the jury to convict based on their natural belief that it would never be reasonable for an initial aggressor to act in self-defence.
[20] We see no error with the trial judge’s jury instruction on self-defence. The trial judge’s instruction supplied the jury with the necessary analytical tools to determine this issue.
[21] The trial judge meticulously reviewed with the jury the three necessary conditions for self-defence, highlighted the relevant evidence that pertained to each element, and repeatedly explained the availability of the defence even if the jury found that the appellant was the initial aggressor. In particular:
i. With respect to the first element of the defence, the trial judge instructed the jury that it was irrelevant who initiated the altercation and that they would have little difficulty finding that the appellant reasonably believed that force was being used against him by Mr. Savenkov.
ii. The trial judge directed the jury on the second element of the defence to consider the appellant’s evidence that his only purpose in using the knife was to defend himself against someone whom he thought was going to do him serious harm or kill him.
iii. In considering the third element of the defence, the trial judge instructed the jury to consider all the relevant circumstances leading up to, surrounding, and following the encounter in the elevator and the lobby, not simply the commencement of the altercation between the appellant and Mr. Savenkov. The trial judge made it clear that if the jury concluded that the appellant was the initial aggressor, the appellant was not by that fact alone disentitled from using force to defend himself, if the appellant reasonably feared from Mr. Savenkov’s response that he was in danger of death or serious bodily harm. The trial judge reviewed in his charge the various factors under s. 34(2) of the Criminal Code and again highlighted the appellant’s evidence of his defensive purpose in reaching for his knife.
[22] That the jury was directed to consider the reasonableness of the appellant’s role in the incident did not diminish his right to defend himself but was a factor that the jury was required to consider in determining whether the appellant’s use of the knife against Mr. Savenkov was reasonable in all of the circumstances.
[23] As a result, the jury was left in no doubt that the appellant was entitled to rely on self-defence, and the jury was equipped to assess the reasonableness of his actions, notwithstanding any conclusion that he was the initial aggressor in the altercation with Mr. Savenkov and had fatally stabbed him.
Disposition
[24] The appeal is therefore dismissed.
“Doherty J.A.”
“L.B. Roberts J.A.”
“A. Harvison Young J.A.”
[^1]: The appellant takes no issue on appeal with the trial judge’s application of the amended provisions of s. 34, notwithstanding that it was an error to do so: R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 38, 70-71. Even if the appellant contested the retrospective application of s. 34, this court has held that a “case specific, functional inquiry” is needed to conclude whether this error prejudiced the appellant at trial: R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 74-75; R. v. Fougere, 2019 ONCA 505, 56 C.R. (7th) 115, at para. 3.