Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220711 DOCKET: C69493

MacPherson, Paciocco and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

John Josipovic Appellant

Counsel: Delmar Doucette, for the appellant Michael Bernstein, for the respondent

Heard: April 8, 2022

On appeal from the conviction entered on November 20, 2020 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.

George J.A.:

Overview

[1] In the early morning hours of November 9, 2013, the appellant shot and killed James Louis Malone (“Malone”). The appellant’s brother, Mato, was present.

[2] Both brothers were initially charged with first degree murder. After a trial in late 2015, a jury found the brothers not guilty of first degree murder, but guilty of second degree murder. Both successfully appealed their convictions which led to a retrial in the fall of 2020. At the second trial, both brothers were charged with second degree murder. The appellant, through counsel, admitted that he was guilty of manslaughter. The appellant testified that Malone had provoked him after a week-long intimidation campaign. The jury found the appellant guilty of second degree murder. He was sentenced to life in prison with a 13-year period of parole ineligibility. Mato was found guilty of manslaughter.

[3] The appellant appeals his conviction, raising one ground of appeal: That the trial judge erred by not giving the jury a corrective instruction about Mato’s speculative theory of the case.

Evidence at Trial

[4] The appellant testified. Mato did not.

[5] The appellant grew up in the east end of Hamilton, in the same neighbourhood as Malone. At one time they were close friends, and while they grew apart there was no history of ill will. Over the years the appellant would sometimes run into people from his old neighbourhood, including Malone.

[6] Until a few years before his death, Malone was a member of the Hell’s Angels. He had a history of violence and was well known to the Hamilton police. An agreed statement of fact was filed at trial. It set out Malone’s criminal record, which included convictions for assault and various weapons offences. The appellant knew of Malone’s history of violence and was aware that he had been a member of the Hell’s Angels.

[7] The appellant testified that, in 2010, he loaned $5,400 to an associate of Malone’s, Steven Karman (“Karman”), so that Karman could invest in a licensed medical marijuana operation. According to the appellant, the terms of the loan required that Karman pay him $6,000. As of 2013, Karman still owed the appellant $1,100.

[8] On October 31, 2013, the appellant met with Karman to seek payment of the loan’s outstanding balance. At this meeting, Karman approached the appellant while brandishing a knife. According to the appellant, this incident ended with Karman threatening to involve Malone.

[9] The appellant testified that on November 1, 2013 he had two conversations with Malone. In their first conversation Malone accused the appellant of disrespecting him. During the second, Malone told the appellant that he “fucked up” and that they had to “fuckin’ deal with it”. The appellant was surprised by this because of their longstanding friendship and the fact that there had never been bad blood between the two. The appellant said that he was frightened given what he knew about Malone’s criminal record and history of violence.

[10] The appellant testified that in the days leading up to the shooting, he was being extorted by Malone who was demanding that he pay a “tax”. On November 4, 2013, Karman and the appellant arranged to meet. Karman came to the meeting with two other men. The appellant testified that he told Karman he would forgive the $1,100 debt. In exchange he asked Karman to speak to Malone and assist with resolving their issues. Karman advised that it was “too late for that”.

[11] The appellant recounted incidents where Malone, and people on his behalf, set out to intimidate him. For instance, early in the morning on November 7 he heard shots fired outside his residence. When the appellant went outside to investigate he saw a car speeding away. Later that same day, when he next met with Karman, the appellant was told that Malone was “talking crazy shit” and “getting out of control”. Karman also advised that he had nothing to do with what happened at the appellant’s house, which the appellant took as confirmation that someone had indeed fired warning shots near his home. During this meeting, the appellant suspected that Karman was carrying a knife, and when the appellant asked him to leave, Karman responded by saying he knew the gym where the appellant’s son worked out at, which the appellant took as a threat.

[12] The appellant testified that on the night of the shooting Malone assaulted, and attempted to kidnap, Mato. The appellant further testified that, after Mato was assaulted and after the attempted kidnapping, he picked up Mato in his truck. When the appellant arrived, he encountered Malone, who said this to him:

[Y]ou get the fuckin’ message? You think you can fuck with me you got another thing coming. Your brother got away tonight, but your cunt wife and goofy kid won’t be so fuckin’ lucky. You’re both fuckin’ dead. You hear me? You’re all fucking dead.

[13] The appellant explained that after hearing this he began to tremble and shake and then “snapped” and “lost it”. The appellant – who was sitting in his truck at the time – got out, retrieved his shotgun and chased Malone. Mato, who was now operating the appellant’s vehicle, followed the appellant and Malone. At some point, while Malone continued to flee, the appellant got into the passenger side seat of his vehicle. Mato continued to follow Malone. During the chase, the appellant fired five shots. At some point the appellant exited his vehicle again. He then struck Malone over the head with his shotgun which caused him to fall to the ground. The appellant discharged a sixth shot, hitting Malone in the head from point blank range, killing him instantly.

The Appellant’s Theory of the Case

[14] The appellant’s theory was threefold. First, Karman, who was a close associate of Malone, owed the appellant $1,100 for an investment in a licensed medical marijuana business. Second, when the appellant sought payment of the loan’s outstanding balance, Karman took exception, with Malone then taking up his cause by threatening violence and attempting to extort money from the appellant. Third, with the first two points setting the stage and providing the context, Malone threatened to kill the appellant’s wife and son, which provoked the appellant, causing him to lose control and kill Malone.

Mato’s Theory of the Case

[15] Mato advanced a theory that undercut the appellant’s. During his closing address, Mato’s counsel argued: 1) that the appellant was involved in an illegal marijuana grow operation; 2) that, for some reason related to this illegal grow operation, the appellant owed Karman money; and 3) that Malone was assisting Karman in his efforts to collect the money he was owed in the days leading up to the shooting.

Cross-Examination of the Appellant by Mato’s Counsel

[16] During cross-examination Mato’s counsel put to the appellant that he was “in bed” with Malone. The appellant believed that “in bed” was a reference to him being involved in an illegal business with Malone. The appellant denied this. Mato’s counsel then got more specific and suggested to the appellant that he was involved in an illegal marijuana grow operation, which he denied. The appellant testified that he loaned Karman money to invest in a legal marijuana business, but that he (the appellant) was not involved in its operation. Mato’s counsel then suggested that pots on the appellant’s land were for growing marijuana, which the appellant denied. The appellant maintained that the pots were related to his landscaping business.

Discussion

[17] The appellant argues that while his theory was well supported by the evidence, primarily through his testimony, Mato’s theory was mere speculation. The appellant submits that the trial judge erred by not drawing the distinction and making this clear for the jury.

[18] As mentioned, Mato did not testify and there was no other evidence about the appellant being involved in a criminal enterprise with Malone or in the illegal marijuana trade. Apart from putting it to the appellant in cross-examination, there was no attempt to establish that the appellant was involved in a marijuana grow operation or that there was a grow operation on his property. There was no evidence that the appellant was involved in an illegal grow operation, with Malone or anyone else. In appellant’s counsel’s written submissions, he puts it this way: “There was … no evidence that the Appellant was involved in an illegal grow-op” which was “important because Mato’s counsel then leapt from this unestablished suggestion of a grow-op to the suggestion that the Appellant’s interaction with Malone was not about his attempt to extort an arbitrary tax, but rather about grow-op money owed by the Appellant”.

[19] The clear objective of Mato’s counsel was to – without having to call Mato himself to testify – convince the jury that the appellant owed Karman money (and not the other way around).

[20] In his closing address, Mato’s counsel said this:

Now, can I prove to you that it was marijuana plants [in the pots on the appellant’s property]? I suggest they were. I don’t know whether it’s the marijuana business or some other business, what I do know is that come October 31st or November 1st, 2013, [the appellant] owed [Karman].

[21] According to the appellant, the suggestion that he was involved in the illegal marijuana trade, was involved in illegal activity at all, and that he owed Karman money, was all speculative and without any evidentiary foundation.

[22] After discussing this issue at the pre-charge conference, the trial judge indicated to counsel that he was going to put this issue “to bed”. While finding that Mato’s counsel had invited speculation the trial judge said that “[t]he question remains as to whether or not I ought to correct [Mato’s counsel’s] statements to the jury. And quite frankly, against my better judgment, I am not going to do so.” He determined that it would be best to, without naming counsel, provide a “general caution” about avoiding speculation. He then charged the jury as follows:

You will recall earlier in the charge, I told you that you can only determine what the facts are in this case from the evidence, direct, and circumstantial. Suggestions or theories put to a witness by a lawyer and not agreed to or adopted by that witness is not evidence.

Further, I must remind you, that you cannot accept submissions or theories advanced by any lawyer in this case that you find is based on no evidence and is clearly speculative and without any foundation. Of course, you are entitled to draw reasonable inferences from what the lawyers say to you. However, do not speculate on matters that do not arise from the evidence or the lack of evidence.

[23] Because this was not a peripheral issue, but one central to and at the heart of his defence, the appellant submits that a specific corrective instruction was necessary. He argues that the general instruction provided was insufficient, amounts to reversible error, and warrants a new trial.

[24] To start, I agree that counsel’s address improperly invited speculation. Mato did not testify. No other witness testified to the appellant being involved in an illegal marijuana grow operation or to the appellant owing Karman money. The appellant steadfastly denied being involved in a marijuana grow operation and denied owing Karman money. As such, there was no evidentiary basis to find that the appellant was involved in an illegal drug operation or that he owed Karman money. It was also highly improper for Mato’s counsel to, in effect, give evidence when he said to the jury: “what I do know is that… [the appellant] owed [Karman]”. First of all, there is no way counsel could know that as he was not a witness to these events. Second, and to repeat a point just made, this was not in evidence. Put simply, this was not an inference available to the jury. The trial judge seems to have agreed with this assessment.

[25] During the pre-charge conference, where this issue was addressed at length, it is important to note that it was discussed along with other issues. The trial judge faced a situation where counsel were all pointing the finger in different directions. The Crown and appellant’s counsel claimed that Mato’s counsel was inviting speculation. Mato’s counsel claimed that the Crown and appellant’s counsel overstepped by telling the jury that there was no evidence for some of his submissions, and that the trial judge had an obligation to correct them. During their discussion, the trial judge indicated that he believed the closing submissions of Mato’s counsel “involve[d] speculation and clearly is not even [based on] circumstantial evidence”. However, the trial judge ultimately decided against “specifically singl[ing] out any lawyer”, which led to him giving the caution I noted earlier in these reasons.

[26] Later on in his charge, the trial judge said this:

You will recall that Mato’s counsel and the Crown attorney put various theories of events to [the appellant] that was all but denied by the witness. Recall that since counsel’s theory or suggestions put to [the appellant] was not adopted or agreed to by [him], it is not evidence. While you have heard about scenarios portrayed by the lawyers in their questions to [the appellant], and in their closing arguments, you will want to carefully consider evidence properly before you. Again, you are not constrained from drawing reasonable inferences from the evidence that you do accept.

[27] Given that the comments were improper, the question is whether, considered in the context of the trial as a whole, including the evidence adduced and the parties’ positions, the closing submissions “caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial”: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184. To answer this question, I must consider the seriousness of the improper comments, the context in which they were made, the presence or absence of objection by defence counsel, and any remedial steps taken by the trial judge following the address or in the charge: R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 37.

[28] As counsel’s invitation to speculate was serious and improper, and given appellant’s counsel did indeed object, the only question that remains is whether the trial judge’s instructions were a sufficient remedy. The appellant says no. He characterizes counsel’s closing as prejudicially speculative. It, he argues, undermined the heart of his defence, which rested on the reason for the dispute that in the end resulted in Malone’s death. He argues that the trial judge needed to go further than he did by providing a specific corrective instruction in relation to Mato’s counsel’s invitation to speculate about the nature of the dispute, and that the failure to do so amounts to a reversible error. He likens the issue in this case to what the court had to consider in R. v. Giesecke (1993), 13 O.R. (3d) 553 (Ont. C.A.), leave to appeal refused, [1993] S.C.C.A. No. 412.

[29] I see little similarity between this case and Giesecke. In Giesecke, counsel for the appellant’s co-accused referred to her as, amongst other derogatory names, a “she-bear” and “monster”, which was unquestionably inflammatory and risked invoking extreme prejudice. Further, counsel for the appellant’s co-accused expressed personal views and speculation, and invited the jury to convert the co-accused’s silence into a positive statement that if he had given evidence he would have testified that the appellant was guilty. More importantly, the trial judge repeated the prejudicial remarks. On appeal, this court found that the appellant experienced significant prejudice “from the combined impact of the growing inimical defences and of the uncorrected rhetoric and speculation in the jury address on behalf of the co-accused”: at p. 559. The appeal was allowed, and a new trial was ordered. Here, while the comments made by Mato’s counsel were improper and without evidentiary foundation, they were most certainly not inflammatory. To the extent any prejudice might have arisen, and unlike in Giesecke, the trial judge did not repeat or otherwise highlight counsel’s comments, and, in the end, took remedial steps to forestall any potential for misuse.

[30] Distilled to its essence, what we are really talking about here is the difference between the appellant owing Karman money for a debt related to some type of illegal activity (i.e., an illegal marijuana grow operation), for which there was no evidence; and Karman owing the appellant money for a loan to become involved in the legal marijuana trade, for which there was some evidence (i.e., the appellant’s testimony). But either way, there can be no question that there was a financial dispute of some description between the appellant and Karman that had something to do with marijuana, and that Malone had become involved on Karman’s behalf in the dispute by engaging in threatening conduct towards the appellant. With that, and apart from the sufficiency of the trial judge’s charge, what Mato’s counsel said about the genesis of the debt could have had no bearing on the one and only question for the jury in relation to the appellant, which was whether there was provocation making what the appellant did manslaughter, and not murder. In other words, if the trial judge did err – and to be clear, I do not accept that he did – it was immaterial.

[31] Instead of focusing solely on what the appellant’s counsel isolates for us on this appeal, one must consider the trial as a whole. And when I do that, it becomes apparent that the comments did not prejudice the appellant’s right to a fair trial. First, after hearing from counsel the trial judge modified his charge, at two points, to stress the difference between speculation and inferences. Second, while not to the appellant’s satisfaction, he actually came fairly close to admonishing Mato’s counsel by expressly telling the jury that just because a lawyer puts a theory to a witness does not make it evidence, directly referencing the fact that the appellant did not agree with or accept what was put to him on cross-examination. Again, this did not go as far as the appellant would have liked, but it was sufficient because it went beyond the typical boilerplate language and, I say, ensured that the jury would not misuse the exchange between Mato’s counsel and the appellant, or draw inferences that had no grounding in the evidence. Perhaps another judge might have gone further and named counsel and directed the jury to disregard their comments entirely, but that does not mean we should interfere with this trial judge’s attempt to strike the right balance in the case before him: see McGregor, at para. 183. He was, after all, better situated than I am now to assess the significance of the comments and determine whether and to what extent correction or other remedial action was required: see McGregor, at para. 182. In the end, he chose a remedy that, in his view, corrected inaccuracies while avoiding unnecessarily singling out counsel.

[32] It is also important to consider the context in which this issue arose, which did not just involve the appellant’s complaints about Mato’s counsel, but included allegations by Mato’s counsel of unfair submissions by the appellant and the Crown. The trial judge had to weigh in on which submissions were valid, and which were not, ultimately concluding that there was merit to the appellant’s complaint. He did that by considering what, if any, impact the improper remarks would have on the jury and then determined what would best ameliorate against them. In circumstances like these, a trial judge’s choice of remedy is due a high degree of deference: see McGregor, at para. 182. I see no reason to interfere with the trial judge’s approach in this case.

[33] I would therefore reject this ground of appeal.

Conclusion

[34] For these reasons I would dismiss the appeal.

Released: July 11, 2022 “J.C.M.” “J. George J.A.” “I agree. J.C. MacPherson J.A.” “I agree. David M. Paciocco J.A.”