





CITATION:
R. v. Belic, 2011
          ONCA 671



DATE: 20111027



DOCKET: C48959



COURT OF APPEAL FOR ONTARIO



Feldman, Sharpe and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Neven Belic



Appellant



Heather McArthur and Victoria Rivers, for the appellant



Brian McNeely, for the respondent



Heard:
October 14, 2011



On appeal from the conviction
          entered on December 17, 2007 and the sentence imposed on February 6, 2008 by
          Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury,
          with reasons for sentence reported at 76 W.C.B. (2d) 508.



By the Court:



[1]

The appellant was convicted of second degree murder and two counts of
    aggravated assault arising out of an incident at a student pub in Oshawa,
    Ontario. He was sentenced to life imprisonment and an eighteen-year period of ineligibility
    for parole. His appeal from sentence was abandoned.

[2]

On the night of the incidents in question, the appellant arrived at the
    pub with several other men in a limousine and initially entered without passing
    through security. He was stopped and asked to return to the entrance where he
    was searched and allowed to re-enter. Soon after arriving, the appellant became
    involved in an altercation with Eugene Moses over a perceived insult. Gunshots
    were fired and Moses was killed. A friend of the appellant and a security guard
    were also injured.

[3]

The Crown relied on evidence of the appellants behaviour before, during
    and after the shooting. There was evidence that before going out the appellant
    had shown a friend a handgun that he intended to carry on the night in
    question. At the pub, the appellant conducted himself in a swaggering and
    aggressive manner, provoking the altercation that preceded the shooting.
    Several witnesses testified that they saw muzzle flash in the vicinity of the
    appellant when the shots were fired. There was considerable evidence of after-the-fact
    conduct, including the appellants flight and incriminating statements he allegedly
    made to undercover officers while in custody. Additionally, forensic evidence
    conclusively linked the ammunition found in the dresser drawer in a room where
    the appellant sought refuge the morning after the shooting, with the handgun
    and ammunition that were used to kill the deceased.

[4]

The appellant did not testify and called no evidence.

[5]

The appellant raises three grounds of appeal:

1.         the
    trial judge erred in his jury instruction with respect to the evidence of the Crowns
    firearms expert relied on by the defence on the issue of muzzle flash;

2.         the
    jury charge was unfair, unbalanced and prejudicial; and,

3.         the
    trial judge erred in his instruction with respect to post-offence conduct.

1.         Firearms expert and muzzle flash evidence

[6]

The Crown led the evidence of Shane Staniek of the Centre for Forensic
    Sciences. Staniek was qualified as an expert in the area of tool mark and
    firearms identification. He testified that a gun recovered after the shooting
    was the weapon used to shoot and kill the deceased. He further testified that the
    marks on the ammunition found in a dresser in a room to which the appellant fled
    after the incident, also matched the gun used in the shooting.

[7]

In cross-examination, defence counsel elicited evidence from Staniek as
    to the nature of muzzle flash without any objection from the Crown or comment
    from the trial judge. Defence counsel also advanced the hypothesis that seeing
    muzzle flash would not enable a witness to identify one person in a group as
    the shooter. When posing this question, defence counsel used a diagram indicating
    that the appellant was standing in a group at the time the fatal shots were
    fired. This diagram, however, was prepared by a witness who did not actually
    see the muzzle flash.

[8]

While Staniek agreed that it would be difficult to attribute the muzzle
    flash to one person in a group, he added I dont know if I can really give any
    kind of qualified answer to that. In re-examination by the Crown he stated:

If were just dealing with a flash, Im finding it
    difficult to really specifically relate it to some one individual. That's
    really beginning to be outside my area of firearms expertise.

Later in re-examination, he stated:

Well one can infer that between the flash and
    person, there is a gun, but it's dealing with peoples perceptions which I'm
    not comfortable commenting on.

However, when pressed further by the Crown in re-examination,
    Staniek repeated that he did not think it was possible to identify the shooter
    standing in a group of people on the basis of muzzle flash.

[9]

In his closing address to the jury, defence counsel placed substantial reliance
    on Stanieks evidence in relation to whether the location of muzzle flash could
    be used to identify the shooter. Defence counsel described Staniek as a genius
    and brilliant and submitted:

He will not attribute who the shooter is in terms
    of the muzzle flash. That is the firearms expert. Whose evidence are we going
    to rely on? Eye-witnesses in a bar who probably have never seen a flash of a
    gun before in their lives, [or] a guy whose life is dedicated to that science.
    That's reasonable doubt.

[10]

Before charging the jury, the trial judge asked both counsel to provide
    him with a written summary of their respective positions to put to the jury.
    The trial judge read those summaries into his charge verbatim; including defence
    counsels position that Staniek was a compelling witnesses who had been adamant
    that a muzzle flash near a person did not necessarily mean that person was the
    shooter. In articulating the defence position he specifically stated: [t]his
    expert's opinion undermines the entire theory of the Crowns case, and
    questions the observations of most witnesses as it relates to their perception
    of the exact location of the shooter.

[11]

The trial judge then made the following comment which is the focal point
    of this ground of appeal:

With respect to that, I would add the following; I
    note that Mr. Staniek was not qualified as an expert regarding muzzle flash
    establishing the location of the shooter. Rather, Mr. Staniek was allowed to
    provide expert opinion evidence as a firearms and tool marks examiner. The
    issue of a muzzle flash and the location of the shooter in relation to the
    muzzle flash, is not part of his expert testimony. Rather, that determination
    does not require expert opinion and may be determined by you the jurors, as
    part of your common sense interpretation of the evidence before you.

[12]

The appellant submits that the trial judge erred in two respects; first,
    by ruling that evidence as to muzzle flash was inadmissible as expert opinion
    evidence; and second, by failing to inform the defence in a timely manner of this
    ruling thereby undermining the position taken by defence counsel in his
    closing.

[13]

We are unable to accept these submissions.

[14]

We see no error on the part of the trial judge in ruling that the significance
    of muzzle flash evidence as a means of identifying the shooter did not fall
    within Stanieks area of expertise. While Staniek was permitted to answer
    questions on the nature of muzzle flash despite only being qualified as a tool
    mark and firearms identification expert, he was clearly reluctant to offer
    expert evidence regarding the capacity of a witness to identify a shooter
    standing in a group on the basis of muzzle flash. Even if he was competent to
    give expert evidence on the nature of muzzle flash, it was open to the trial
    judge to interpret his evidence as stating that he was unable to offer an
    expert opinion on that matter and equally open to the trial judge to so
    instruct the jury. Accordingly, we see no error in the impugned portion of the
    charge as it simply reflects a reasonable interpretation of Stanieks evidence.

[15]

Furthermore, we are not persuaded that the trial judge erred by failing
    to provide defence counsel with an earlier warning that the jury would be
    instructed in this manner. The trial judge gave defence counsel a considerable
    degree of latitude by permitting him to explore the implications of muzzle
    flash in view of the fact that he was only qualified as an expert on tool mark
    and firearms identification.  However, it does not follow that having given
    such latitude, the trial judge was compelled to accept counsels interpretation
    of that evidence.

[16]

Moreover, given the equivocal and hesitant nature of the evidence
    defence counsel was able to elicit from Staniek on the issue of using muzzle
    flash to identify the shooter, the trial judge had no reason to anticipate that
    defence counsel would interpret the evidence as he did, placing such heavy reliance
    on it in his closing address. We note here that defence counsel did not provide
    the trial judge with his written position until immediately before the trial
    judge commenced his instructions to the jury. It is clear from the exchange
    between defence counsel and the trial judge mid-way through the jury charge and
    before he gave the impugned instruction position, that the trial judge was
    surprised by defence counsels position. In response to defence counsels
    objection to the impugned portion, the trial judge stated:

With Mr. Staniek, it would appear to me that you
    were trying to take evidence that isn't part of what he was qualified to give
    expert opinion evidence about, and juice it up into being expert opinion
    evidence. So I'm going to correct it.

[17]

Given the manner in which the treatment of Stanieks evidence by defence
    counsel unfolded, we are not persuaded that the trial judge erred by failing to
    rule on the matter earlier or to warn defence counsel in advance of the nature
    of the impugned instruction.

2.         The jury charge

[18]

The appellant submits that the jury charge was unfair, unbalanced and
    prejudicial because the trial judge emphasized evidence favouring the Crown. The
    appellant objects, in particular, to the trial judge having repeated various
    portions of the Crowns incriminating evidence several times, without each time
    commenting on the appellants submissions as to the weakness of that same evidence.

[19]

We do not agree with this submission.

[20]

In our view, the trial judge did not unnecessarily repeat the Crowns
    evidence. Rather, as required, he identified the issues the jury had to decide
    and related to each of those issues the relevant evidence. This necessarily
    involved a certain amount of repetition. As we have already noted, the trial
    judge fully explained the defence position to the jury by reading in its
    entirety defence counsel's position on the evidence.

[21]

In our view, reading the charge as a whole, the jury would have clearly
    understood that the crucial issue was whether the Crown had been able to prove
    that the appellant was the shooter. The trial judge gave the jury the defence
    position on that issue exactly in the language requested by defence counsel.

[22]

Moreover, in a case where the accused does not testify and calls no
    evidence, it is almost inevitable that the judges summary of the evidence as
    it relates to each issue will focus on the evidence led by the Crown.

3.         Jury instruction on post-offence conduct

[23]

The appellant submits that the trial judge erred by using the then
    standard instruction on post-offence conduct later criticized by this court in
R.
    v. Hall,
2010 ONCA 724, 263 C.C.C. (3d) 5. Confronted with that submission,
    the Crown requested a five-judge panel to permit us to reconsider
Hall
.
    That request was denied and therefore
Hall
governs.

[24]

The Crown makes two arguments in response to the
Hall
point.
    First, the Crown submits that
Hall
has been overtaken by a subsequent
    decision of the Supreme Court of Canada in
R. v. White,
2011 SCC 13, 332
    D.L.R. (4
th
) 39. Second, the Crown points out that in any event, the
    decision in
Hall
makes it clear, at para. 146, that [s]tanding on its
    own, this flaw in the charge would not constitute reversible error.

[25]

We see nothing in
White
(2011) that undermines, or is
    inconsistent with,
Hall
. Indeed, in
White
(2011), the Supreme
    Court cited with approval the same passage from
R. v. White,
(1998) 2
    S.C.R. 72, at para. 57, that this court relied on in
Hall
. We note as
    well that an application for leave to appeal
Hall
was dismissed after
    the release of the Supreme Courts decision in
White
(2011).

[26]

However, we are satisfied that the
Hall
error alone would not
    have led the jury astray and, as counsel for the appellant conceded, standing
    on its own, it does not require us to set aside the conviction.

Conclusion

[27]

Accordingly, the appeal from conviction is dismissed and the appeal from
    sentenced is dismissed as abandoned.

RELEASED: October 27, 2011 (K.F.

K. Feldman J.A.

Robert J. Sharpe J.A.

Robert P. Armstrong J.A.


