Court of Appeal for Ontario

Date: 2024-03-27 Docket: C68828

Before: Fairburn A.C.J.O., Zarnett and Favreau JJ.A.

Between: His Majesty the King, Respondent and Doru Vasile Robas, Appellant

Counsel: Amy J. Ohler, for the appellant Robin Flumerfelt, for the respondent

Heard: March 20, 2024

On appeal from the conviction entered by Justice Steve A. Coroza of the Superior Court of Justice, sitting with a jury, dated June 13, 2018.

Reasons for Decision

[1] This is an appeal from a conviction for first degree murder. At the end of the hearing in this matter, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant pleaded guilty to manslaughter at the outset of trial. The Crown rejected that plea and continued with the prosecution for first degree murder, a prosecution predicated on both a theory of planning and deliberation and one of forcible confinement.

[3] The appellant testified at trial. He acknowledged that he believed that the victim, Sebastiano Sinisi, had done him wrong. He stated that he approached Mr. Sinisi while Mr. Sinisi was seated in the driver’s seat of his vehicle. The appellant testified that he demanded that Mr. Sinisi return some of his property.

[4] The appellant testified that because the conversation did not go well, he returned to his own vehicle to retrieve his Remington shotgun in an effort to make Mr. Sinisi understand that he was serious. The appellant said that when he returned to Mr. Sinisi’s vehicle, Mr. Sinisi had moved to the backseat to get something. The appellant testified that because Mr. Sinisi started mocking him, the appellant pointed the gun upwards, cocked it, and put one hand on the pump and another on the trigger to show it was a real gun. When the appellant checked whether the safety was on, the gun accidentally discharged into Mr. Sinisi’s neck.

[5] The appellant testified that, a few days before the shooting, he thought he had loaded five shells into the Remington before attempting to remove them all. When he heard his girlfriend coming home into the residence, he rushed to put the gun away. He thought that the chamber was empty. He said that when he approached Mr. Sinisi to scare him with the gun, he did not realize that there was a shell left in the chamber.

[6] The appellant maintained that following the shooting he panicked and fled the scene. He testified that he wanted to commit suicide and wrote a suicide note. He said that he stayed at a number of motels over the following days, thinking he was going to kill himself and not wanting to do that at his home. In closing to the jury, defence counsel pointed out that the appellant had done little to avoid being detected, which was inconsistent with an intention to kill.

[7] The trial Crown argued to the jury in his closing address that the appellant’s evidence should be rejected for a number of reasons, including that his in-court testimony was inconsistent with his police statement upon arrest, where he outright denied killing Mr. Sinisi. The trial Crown also pointed out that the blood spatter evidence demonstrated that Mr. Sinisi was likely laying down or at the very least had his head within inches of the seat when he was shot, a position that was inconsistent with the appellant’s version of events.

[8] Finally, the trial Crown relied on the appellant’s claimed intention to commit suicide to explain the lack of steps to avoid detection and to contradict his stated belief that he had emptied the Remington of any shells before going to see the victim. The trial Crown noted that the appellant’s home had been extensively searched by the police following the shooting. While the police found ammunition, they did not find any Remington shells.

[9] It is here that the single ground of appeal arises [1]. The appellant takes issue with what the trial Crown said to the jury regarding the absence of any Remington shells in the appellant’s home. The impugned passage from the trial Crown’s closing to the jury reads:

[T]his is what [the appellant] testified to, for three to four days [following the shooting, he] went to a hotel in order to commit suicide. Presumably with the means which were available to him. This shotgun. Think about that for a moment. If that’s what happened, [he] killed [Mr. Sinisi], goes to hotel – to the hotel to commit suicide thinking – he had to know that there were more shell[s] in the gun. You’re not going to commit suicide with an unloaded shotgun. Consider that. Where are those other four shotgun shells, ladies and gentlemen? The Remington ones? The triple[-aught] buckshot that you saw [on] the photograph on his phone. He said, “well, I unloaded four, I guess not five.’ Where are those other four? [Searching police officer] didn’t find it and you can be sure that they were looking for it. They found other type[s] of ammunition. Was there any evidence they found – where are they – where are those four shells? And if he’s going to the hotel to commit suicide that night with this Remington, why would you do that with an unloaded shotgun? Unless you had more rounds with you to do it.

[10] The appellant argues that the trial Crown’s closing address on this point improperly suggested that the Remington firearm used to kill Mr. Sinisi was loaded with Remington shells at the time of the shooting. While the appellant acknowledges that no Remington shells were found during the search of his residence, many other types of shotgun shells were located during that search. The appellant argues that one of those other types of firearm shells could have been used in the Remington gun. Accordingly, the shells that the appellant testified he removed from the gun might not have been Remington shells. If so, the fact that the police did not find Remington shells in the appellant’s home could not, as the trial Crown suggested in his closing address, undercut the appellant’s credibility.

[11] The appellant contends that by suggesting that the firearm contained Remington shells, a fact the appellant says was never proven, the trial Crown improperly invited the jury to reject his evidence on the basis of speculation alone.

[12] In our view, there was ample evidence to support the Crown’s position at trial.

[13] First, even the appellant agreed that he used his Remington shotgun to kill Mr. Sinisi.

[14] Second, a firearms expert testified that the remnants of the shell removed from the deceased’s neck were “most likely” from a Remington shell.

[15] Third, the search of the appellant’s home revealed numerous shells in a shell belt and also shells contained in a Winchester firearm. The appellant conceded that the shells in the belt were not used in the Remington firearm. This left only the shells that were actually located in the Winchester firearm as the shells that could have been used in the Remington.

[16] Fourth, the appellant testified that when he obtained the Winchester firearm he put the shells into it and placed it under a sofa, where it was later discovered by the police. There was no evidence that he ever removed those shells from the Winchester, loaded the Remington with them, then removed them from the Remington and reloaded the Winchester with them.

[17] Fifth, there was a picture located on the appellant’s phone of a box of Remington shells.

[18] In these circumstances, there was a strong evidentiary foundation for the Crown’s closing address.

[19] While we note that an objection was made following the Crown’s closing address on this point, we also note that the trial judge tried to respond to the defence objection by crafting two separate jury instructions, neither of which the defence wanted because, if anything, they further highlighted the strength of the Crown’s case.

[20] It is for these reasons that we dismissed the appeal.

“Fairburn A.C.J.O.” “B. Zarnett J.A.” “L. Favreau J.A.”

[1] Although the appellant’s factum took issue with the trial judge’s decision leaving the issue of forcible confinement with the jury, that ground of appeal was abandoned during oral argument.