



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Belisle, 2012
    ONCA 303

DATE: 20120510

DOCKET: C52278

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Belisle

Appellant

Candice Suter, for the appellant

Gillian Roberts, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Joseph
    M. Fragomeni of the Superior Court of Justice, sitting with a jury, on April
    15, 2009.

Gillese J.A.:

[1]

After a trial by jury, Timothy Belisle (the appellant) was found guilty
    of first degree murder in connection with the fatal stabbing of Norman Anderson
    (Mr. Anderson or the victim) on January 26, 2008.  Mr. Belisle was sentenced to
    life imprisonment with no parole eligibility for 25 years.

[2]

Mr. Belisle appeals against conviction.

[3]

At the conclusion of the oral hearing of the appeal, the court advised
    counsel that the appeal was dismissed and that reasons would follow.  These are
    the promised reasons.

FACTS IN BRIEF

[4]

On the day in question, the appellant was drinking and socializing with
    his friends, Brent Tester and Yvonne Barry.  At some point during this time,
    Mr. Andersons name was mentioned.  According to Ms. Barry, the appellant reacted
    by becoming very angry and reaching for a knife.  However, he calmed down. 
    Later that day, the appellant, Mr. Tester and Ms. Barry decided to visit Mr.
    Anderson at his home, where he lived with his common-law spouse, Jean Brunetti. 
    They drove there in Mr. Testers car.

[5]

Initially the visit was friendly.  Everyone gathered in Mr. Andersons
    garage where he was working on fixing a car.  Then an altercation took place in
    which Mr. Anderson suffered a single fatal stab wound.  There was no tension among
    the people in the garage nor were any harsh words spoken before the victim said
    asshole or Fuck you, Tim and then made a loud moaning noise.

[6]

Mr. Tester and Ms. Brunetti tried to pull the appellant off of the
    victim.  Mr. Tester noticed that the appellant held a bloody knife; he tried to
    pull the appellants right arm (knife arm) back.  Ms. Brunetti jumped on the
    appellants left side.  When Mr. Tester managed to pull the appellants right
    arm back, she saw that the appellant held a knife which was covered in blood.

[7]

Mr. Tester, Ms. Barry and Ms. Brunetti testified.  The appellant did not
    testify or call any evidence at trial.

[8]

After handing out a draft of his charge and giving counsel time to
    consider it, the trial judge held an extensive pre-charge conference.  At the
    pre-trial conference, defence counsel asked that the defences of intoxication
    and provocation be left with the jury.  He did not ask for the defence of
    accident to be left with the jury.

[9]

The trial judge ruled that the defence of intoxication should go to the
    jury but found that there was no air of reality to a defence of provocation.

[10]

Following
    the charge to the jury, neither counsel raised any objections.  When the trial
    judge asked for comments, defence counsel responded with Well done, Your
    Honour, thank you very much.  The trial judge answered by asking specifically
    if there were any comments respecting the contents of the charge.  Defence
    counsel replied that he had no submissions.

THE GROUNDS OF APPEAL

[11]

For
    the first time on appeal, the appellant argues that the trial judge erred in
    failing to:

1.

give the jury an
    instruction on post-offence conduct;

2.

give a
Vetrovec
instruction in relation to the evidence of Mr. Tester and Ms. Barry;

3.

leave the
    defence of accident with the jury;

4.

properly
    instruct the jury on the elements of manslaughter;

5.

adequately charge
    the jury on the additional requirements of causation applicable to first degree
    murder;

6.

leave with the
    jury Ms. Barrys belief that the victim had a reputation for selling drugs.

[12]

The
    court called on the Crown in respect of only the sixth ground.

Post Offence Conduct

[13]

The
    appellant complains that the absence of an instruction on post-offence conduct
    gave rise to a significant risk that the jury would misapply the evidence.  The
    conduct in question consisted of two statements that the appellant made on
    the date in question.

[14]

The
    first statement was made when, shortly after the stabbing, Ms. Brunetti went
    into the living room and attempted to call 911.  The appellant asked who she
    was phoning and Ms. Brunetti answered to the effect that they had to phone for
    an ambulance.  The appellant said, Youre not phoning anyone, hes dead.  Ms.
    Brunetti screamed, Hes dead? and the appellant replied, No, not yet.

[15]

In
    its closing address, the Crown submitted that this amounted to evidence that the
    appellant was capable of forming the intention to have Mr. Anderson die, and
    that it provided evidence of planning and deliberation.

[16]

The
    appellant made the second statement shortly after interfering with Ms.
    Brunettis attempt to call 911, when he returned to the garage.  According to Mr.
    Tester, the appellant said to him, Shut up, or Ill kill you too.

[17]

The
    Crown submitted that the second statement was evidence of intention that the
    appellant was prepared to kill Mr. Tester just as he had killed Mr. Anderson.

[18]

A
    warning is required when evidence of post-offence conduct is introduced to
    support an inference of consciousness of guilt:  see
R. v. White
, 2011
    SCC 13, [2011] 1 S.C.R. 433, at para. 22.  In such circumstances, the danger
    exists that a jury may fail to take account of alternative explanations for the
    accuseds behaviour and may mistakenly leap from such evidence to a conclusion
    of guilt: see
White
, at para. 23.

[19]

The
    Crown did not rely on either of the two statements for a consciousness of
    guilt inference.  Rather, as indicated above, it relied on the evidence for
    clear and specific inferences related to intention.  In these circumstances, I
    do not see that the evidence could be misused, so no special warning was
    required.

[20]

Counsels
    considered position to not request an instruction on post-offence conduct or to
    complain about its absence supports the conclusion that no such instruction was
    required in this case.

A
Vetrovec
Instruction

[21]

Yvonne
    Barry and Brent Tester were both important Crown witnesses in that they
    provided evidence of the events around and during the stabbing which supported
    the Crowns case for murder.  However, their evidence was confirmed by the
    evidence of Jean Brunetti and the forensic evidence.  Moreover, their evidence
    was important to the defence because the evidence of drinking came from them
    and that evidence was essential to the defence of intoxication.

[22]

As
    mixed witnesses  that is, witnesses called by the Crown but who provide
    evidence that assists the defence  it was a matter for the trial judges
    discretion as to whether to give a
Vetrovec
warning:  see
R. v. Tran
,
    2010 ONCA 471, 103 O.R. (3d) 131, at para. 27.  I see no basis to interfere
    with the exercise of that discretion.

[23]

Had
    the trial judge given such an instruction, it would have hurt the defence in
    this case, given that it could have neutralised the evidence of drinking.  Instead,
    the trial judge carefully reviewed the two witnesses evidence and gave careful
    instructions on how to assess credibility and reliability, and the significance
    of prior inconsistent statements.  In so doing, the trial judge gave the jury
    the tools they needed to properly scrutinize Ms. Barry and Mr. Testers
    evidence while not neutralizing its ability to support the defence.  Again, the
    failure of defence counsel to request a
Vetrovec
warning or to complain
    about its absence is telling.

The Defence of Accident

[24]

I
    see no air of reality to the defence of accident.  Unsurprisingly, the defence
    did not ask that this defence be left with the jury.

[25]

The
    appellant did not testify or call any evidence so any air of reality would have
    had to have come from the Crowns case.  The evidence of the three witnesses to
    the stabbing was consistent: there was no fight or even tension until the
    stabbing and the stabbing occurred before the intervention of any of the
    witnesses, who tried to get the appellant away from the victim.  Furthermore,
    the nature of the stabbing itself suggests an intentional act.  The appellant
    brought a large knife to the scene, which he kept concealed until the attack. 
    He stabbed the victim only once.  The stab wound began at the victims mid to lower
    back, went between several ribs, through the lower lobe of the right lung, and
    ended at the spinal column.  The knife had a 19 cm. blade that went through the
    victims winter coat and clothing and 18 cm. into his body.  As well, the statements
    that the appellant made after the stabbing, discussed above in the section on
    post-offence conduct, suggest the stabbing was intentional.

Manslaughter

[26]

The
    trial judge followed the model jury instructions on first degree murder. 
    Accordingly, he instructed that if the jury concluded that the appellant caused
    the victims death by an unlawful act but did not have the intent for murder,
    the proper verdict was manslaughter.

[27]

The
    appellant complains that the instruction on manslaughter was inadequate because
    it did not refer to the essential elements of the offence of manslaughter.  I would
    not accept this submission.

[28]

The
    trial judge did not explicitly instruct the jury that the unlawful act must be
    objectively dangerous in that a reasonable person in the circumstances would
    think it likely to cause a risk of harm that is more than brief or minor in
    nature.  Instead, he instructed the jury that the unlawful act was the
    stabbing, an obviously objectively dangerous act.  The instructions were
    consistent with the evidence in the case, the way in which it was argued, and
    the real issue, which was the appellants intention.

Causation

[29]

The
    appellant complains that the trial judge failed to charge the jury adequately
    as to the requirement of causation because he failed to instruct the jury that
    they must be satisfied beyond a reasonable doubt that the appellant
    participated in the murder in such a manner that he was a substantial cause of
    Mr. Andersons death and that there was no intervening act of another which
    resulted in the appellant no longer being substantially connected to Mr.
    Andersons death.

[30]

A
    single test  the
Smithers
test  for causation applies to all forms of
    homicide:  the impugned act must be a significant contributing cause of
    death, beyond something trifling or minor: see
R. v. Nette
, 2001 SCC 78,
    [2001] 3 S.C.R. 488, at paras. 71-72. It is only in the context of a
    constructive first degree murder under s. 231(5) of the
Criminal Code,
    R.S.C. 1985, c. C-46,
that there is an additional requirement of causation:
    see
Nette
, at para. 73.  This was a planned and deliberate first degree
    murder under s. 231(2) of the
Criminal Code
, not a constructive first
    degree murder.  The trial judge followed the model jury instructions and
    correctly instructed the jury on the requirements of causation in this case.

[31]

In
    any event, causation was not in issue in this case.  There was never any
    question that the stabbing killed Mr. Anderson.  The issue was whether the
    Crown had proved that the act of stabbing was intentional and done with the
    requisite intent for murder.

The Victims Reputation

[32]

Ms.
    Barry gave evidence that Mr. Anderson had a reputation for being a drug
    dealer.  The trial judge instructed the jury that the evidence had no
    evidentiary value as it was hearsay, since Ms. Barry was only recounting what
    she had heard.  He stated that it was not admissible to prove the truth of its
    contents or for any other purpose.

[33]

The
    appellant submits that this evidence ought not to have been entirely excluded
    from the jurys consideration since it was relevant not for the truth of its
    contents but in establishing Ms. Barrys beliefs about whether the victim was
    someone from whom she could expect to obtain drugs.  This evidence, it was
    argued, could have provided an explanation for why the appellant and the others
    decided to visit the victim.  That is, the evidence was significant to the
    issue of the appellants intent.

[34]

In
    my view, the charge was correct in the circumstances of this case.  At best,
    the evidence could only have been admissible in relation to Ms. Barrys belief
    that she could buy drugs from the victim.  However, that was not Ms. Barrys
    evidence, as she consistently denied that she asked the victim for drugs or
    that she had any intention of doing so.  (The evidence that she asked to buy
    drugs from the victim came from Ms. Brunetti.)

[35]

In
    any event, it was the appellants intention, not Ms. Barrys, that was at
    issue.  As the evidence of Ms. Barrys beliefs went to her state of mind and
    not that of the appellant, I see no error in the trial judges instruction to
    the jury on this point.

DISPOSITION

[36]

Accordingly,
    I would dismiss the appeal.

Released: May 10, 2012 (M.R.)

E.E.
    Gillese J.A.

I agree
    M. Rosenberg J.A.

I agree
    Alexandra Hoy J.A.


