



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Weese, 2016 ONCA 449

DATE: 20160609

DOCKET: C53551 & C56772

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Lee Weese

Appellant

Kyle Lee Weese, appellant in person

Enzo Rondinelli, duty counsel

Michael Bernstein, for the respondent

Heard: May 12, 2016

On appeal from the convictions entered on October 25,
    2010 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with
    a jury, and from the sentence imposed on March 31, 2011.

ENDORSEMENT

[1]

Kyle Weese was found guilty by a jury of second degree murder and four
    counts of aggravated assault. He was sentenced to life imprisonment with parole
    eligibility set at 22 years. He appeals against both conviction and sentence.

Background

[2]

The appellant was at the Duke of York pub in Toronto with his
    girlfriend. He got into an altercation with another man, Addy Reddick, after
    his girlfriend expressed annoyance that Reddick had touched her.

[3]

The appellant and Reddick were told to take their dispute outside and
    did so. Although words were exchanged, no fight occurred. Reddick returned to
    the bar but the appellant did not.

[4]

Shortly afterwards, a male with a semi-automatic handgun fired at least
    14 bullets outside the bar. Six people were hit, including the appellants
    brother. An innocent bystander, Bailey Zaveda, was hit six times and died of
    her injuries.

[5]

The appellant was charged with the murder of Ms. Zaveda and four counts
    of aggravated assault. He was not charged in the shooting of his brother. The
    sole issue in this case was the identity of the shooter.

[6]

The appellant testified at trial and denied being the shooter. His evidence
    was that he left the bar and was walking away when he heard the shooting. He
    went to a house, called a cab, and then went to his girlfriends home to
    complete a drug deal. The appellant testified he was driven to Lindsay that
    night in accordance with arrangements he had made earlier that day.

[7]

Four witnesses identified the appellant as the shooter. These included
    Nathan Reddick, Addy Reddicks uncle, and Dwight Marshall, Addy Reddicks
    cousin.

Conviction

[8]

Duty counsel raises four arguments against conviction on behalf of the
    appellant.

[9]

First, duty counsel submits that the trial judge bolstered Nathan
    Reddicks credibility in her charge to the jury by referring to the consistency
    of Reddicks testimony at the preliminary inquiry with his testimony at the
    trial. The trial judge stated:

So when you consider how much or little you believe and rely
    upon this evidence to decide the case, you take into account the fact that hes
    awaiting trial on another charge. However, you must also remember that he gave
    evidence at the Preliminary Inquiry before those charges in Peel even arose.
    And his evidence at the Preliminary Inquiry, we are told, was consistent with
    his evidence here.

[10]

Duty
    counsel submits that these remarks invited the jury to rely upon Nathan
    Reddicks testimony because it was consistent with his earlier testimony.
    Although prior
in
consistent statements are admissible in challenging the
    credibility of a witness, prior consistent statements are an irrelevant
    consideration and duty counsel submits that the trial judges remarks were a
    serious misdirection.

[11]

We
    disagree.

[12]

The
    trial judges remarks were made in the context of a defence suggestion that
    Nathan Reddicks evidence was fabricated to help his situation with the police
    concerning charges against him in Peel. The trial judge did no more than to
    point out that Reddicks evidence was consistent with statements he made at the
    preliminary inquiry, which occurred prior to the Peel charges.

[13]

Second,
    duty counsel submits that Detective Girouxs evidence constituted impermissible
    oath-helping. Two of the witnesses who testified to seeing the shooting, Dwight
    Marshall and Nathan Reddick, had lied to the police in saying that they did not
    know who Addy Reddick was. Subsequently they acknowledged that they did know
    him, but no action was taken against them.

[14]

The
    trial judge noted that the witnesses had lied and addressed Detective Girouxs
    actions as follows:

Detective Giroux testified that he had not been misled by the
    statement, because hed learned of Addy from other sources. Detective Giroux
    said they apologized, fully cooperated and made themselves available to the
    police. He determined  he, Detective Giroux  determined on these facts that
    it was not in the interests of justice to pursue the matter of the original lie
    under oath.

[15]

Duty
    counsel submits that the jury should have been instructed that they could not
    use Detective Girouxs evidence for the purpose of oath-helping.

[16]

We
    disagree.

[17]

The
    rule against oath-helping renders inadmissible evidence adduced solely for the
    purpose of proving that a witness is truthful:
R. v. Burns
, [1994] 1
    S.C.R. 656, at p. 667. In our view, the rule has no application here. Detective
    Giroux did not testify as to the honesty or veracity of either Marshall or
    Reddick. His evidence came in cross-examination, in explaining why neither
    Reddick nor Marshall was charged with obstruction of justice or perjury. This
    was not oath-helping. In any event, we are satisfied that the trial judge
    properly instructed the jury concerning its responsibility in assessing the
    credibility of the witnesses.

[18]

Two
    additional arguments in duty counsels factum were not the subject of oral
    argument. First, duty counsel submits that the trial judge failed to properly
    instruct the jury concerning the use they could make of evidence of post-offence
    conduct, citing this courts decision in
R. v. Hall
, 2010 ONCA 724, 263
    C.C.C. (3d) 5, leave to appeal to SCC refused, [2010] S.C.C.A. No. 499. Second,
    duty counsel submits that the trial judge erred in failing to alert the jury
    sufficiently to the dangers associated with eyewitness identification,
    especially from a witness who seemed confident about his identification.

[19]

We
    reject these submissions.

[20]

Hall
is concerned with the risk that jurors might too easily infer guilt from
    post-offence conduct. However, as set out in
R
.
v. White
, 2011
    SCC 13, [2011] 1 S.C.R. 433, at paras. 23-24, the risk discussed in
Hall
can be addressed by the trial judge informing the jury as to any other
    explanations for post-offence conduct, and instructing them to reserve final
    judgment about the meaning of the conduct until all of the evidence has been
    considered. That occurred here. Although the decision in
Hall
was
    released following the trial in this matter, we note that trial counsel (not
    Mr. Rondinelli) expressed no concerns about the trial judges charge, and in
    our view, post-offence conduct was not significant in establishing the
    appellants guilt in any event.

[21]

As
    for the eyewitness evidence, the trial judge carefully reviewed the evidence
    and cautioned the jury about the dangers of mistaken identification. A draft of
    her charge was vetted by trial counsel and no objection was made to her
    instructions.

[22]

Having
    reviewed the record in this matter, we conclude that there is no basis to find any
    error in the trial judges handling of the trial. The appeal against conviction
    must be dismissed.

Sentence

[23]

The trial judge had a discretionary power under s. 745.4 of the
Criminal Code
to increase the period of
    parole eligibility beyond the ten-year period, having regard to the character
    of the offender, the nature of the offence and the circumstances surrounding
    its commission, and the recommendations of the jury. The trial judges
    discretion had to be exercised
in accordance with s. 718.2(e) of the
Criminal
    Code
and the principles set out in
R. v. Gladue,
[1999] 1 S.C.R. 688.

[24]

Duty
    counsel makes two submissions on behalf of the appellant. First, he submits
    that the trial judge failed to give adequate weight to the appellants
    circumstances as an aboriginal offender in setting the minimum period of parole
    eligibility. Second, the trial judge failed to give adequate weight to the
    jurys recommendations regarding the minimum period of parole eligibility. Duty
    counsel submits that minimum parole eligibility period should have been set at
    16 years.

[25]

We
    disagree.

[26]

The
Gladue
principles do not apply in a mechanical fashion,
    nor do they require reductions in sentences for offences committed by
    aboriginal persons. On the contrary, as the Court noted in
Gladue
at
    para. 79, Generally, the more violent and serious the offence the more likely
    it is as a practical reality that the terms of imprisonment for aboriginals and
    non
‑
aboriginals will be close to each other or the same, even taking
    into account their different concepts of sentencing.

[27]

This was a very violent and serious crime and
    the trial judge was required to consider a number of factors, including the
    appellants circumstances as an aboriginal offender, in crafting the
    appropriate sentence.

[28]

We are satisfied that she did so. The trial
    judge clearly understood the appellants difficult personal circumstances,
    which included physical abuse, drug abuse, and led to a life of crime. She did
    not make any of the mistakes identified in
R. v. Ipeelee
, 2012 SCC 13,
    [2012] 1 S.C.R. 433, and in particular did not require the appellant to establish
    a causal link between his circumstances and the offences he committed. There is
    no basis to interfere with her conclusion.

[29]

As for the second submission
, the trial judge did not fail to
    give adequate weight to the jurys recommendations regarding the minimum period
    of parole eligibility. The jurys recommendations ranged from 10 to 25 years,
    with five jurors making no recommendation. The trial judge was simply required
    to consider the jurys recommendations as one of the relevant factors, and it
    is clear that she did so.

[30]

The
    fact that she set the parole eligibility period at the higher range of the
    jurors recommendations is of no moment. As the Supreme Court held in
R. v. Shropshire
, [1995] 4 S.C.R. 227,
    at para. 46, [a] variation in the sentence should only be made if the court of
    appeal is convinced it is not fit. That is to say, that it has found the
    sentence to be clearly unreasonable.

[31]

The
    circumstances of this case can only be described as egregious. The appellant
    opened fire with a semi-automatic weapon outside a bar. Six people were injured,
    including the appellants brother, and an innocent bystander was killed. The
    appellant continued shooting even after being informed that he had shot Ms.
    Zaveda. He displayed a wanton disregard for human life.

[32]

The
    appellant has a lengthy record that includes violence and a previous shooting.
    That, coupled with the trial judges finding that the appellant showed no
    possibility of rehabilitation, a complete disregard for court orders and poses
    a significant risk to the safety of the public, amply justifies her decision
    to impose a 22-year minimum parole period. The trial judge made no errors and
    there is no basis to interfere with her decision.

Disposition

[33]

The
    appeal against conviction is dismissed. Leave to appeal sentence is granted,
    but the appeal is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


