



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pandurevic, 2020 ONCA 798

DATE: 20201211

DOCKET: C63975

Doherty, Roberts and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marko Pandurevic

Appellant

Paul J.I. Alexander, for the appellant

Benita Wassenaar, for the respondent

Heard: November 24, 2020 by
    videoconference

On appeal
    from the conviction entered by Justice Ian A. MacDonnell of the Superior Court
    of Justice, sitting with a jury, on May 17, 2013.

REASONS
    FOR DECISION

[1]

On May 17, 2013, the appellant was convicted of
    the second degree murder of Dmitry Savenkov and was subsequently sentenced on
    June 7, 2013 to life imprisonment with a ten-year parole ineligibility period.

[2]

The appellants main grounds of appeal are that
    the trial judge erred by admitting as voluntary the statement he made to the
    police following his arrest and by failing to give an adequate jury instruction
    on self-defence. He requests the conviction be overturned and seeks a new
    trial.

[3]

At the close of the appellants submissions, we
    dismissed the appeal with reasons to follow. These are those reasons.

Brief Factual Overview

[4]

The appellant and Mr. Savenkov lived in the same
    apartment building. The appellant testified that Mr. Savenkov, who was much
    larger than the appellant, had subjected him to several weeks of physical and
    verbal harassment. The buildings security footage showed that shortly before
    noon on July 31, 2010, the appellant was in the lobby of the apartment building.
    The appellant testified he was waiting for his grandfather. During this time,
    Mr. Savenkov was in the elevator, and the appellant testified that Mr. Savenkov
    called him a goof once the elevator doors opened. The appellant then angrily
    confronted Mr. Savenkov before the latter could exit the elevator. The two
    tussled in the elevator and the fight spilled over into the lobby. The
    appellant stabbed Mr. Savenkov with a knife that he said he had been carrying
    as protection against Mr. Savenkov. During the altercation, Mr. Savenkov
    received two stab wounds. Not realizing the extent of his injuries, Mr.
    Savenkov continued to punch the appellant, and then exited the building,
    collapsing in the parking lot. He died shortly thereafter. In the meantime, the
    appellant returned upstairs toward his apartment on the sixth floor, disposing
    of the knife
en route
in the garbage chute on the third floor. After
    speaking with his grandparents, the appellant testified that he ran down the
    stairs of the west end of the building, avoiding the lobby where the
    altercation occurred, and ultimately attended at a hospital for treatment of
    his own wounds from the altercation with Mr. Savenkov.

[5]

With his mothers assistance, the appellant flew
    that night to Bosnia, unaware at that time of Mr. Savenkovs death. The
    appellant testified that roughly a week after his arrival in Bosnia, he
    discovered that Mr. Savenkov had died. He voluntarily returned to Canada six
    months later. Upon his arrival at the airport on February 6, 2011, he was
    arrested by police for the first degree murder of Mr. Savenkov and given
    his rights to counsel and standard caution. The police immediately provided him
    with the opportunity to speak privately with his counsel and mother who had
    also come to the airport. He was then escorted by the police to the police
    station and interviewed for 1 hour and 22 minutes in what is referred to as a soft
    interview room, which is normally used for interviews with children. He was
    given water and told he could request at any time to leave the interview room
    or to use the phone to make a call. During the interview, the police
    investigators reiterated several times the appellants right to remain silent.
    While the appellant indicated numerous times that he did not wish to speak to
    police or respond to their questions without his lawyer present, he spoke often
    throughout the interview to offer his version of the incident.


Trial Proceedings

[6]

At trial, the appellant opposed the respondents
    application to admit his statement to the police as a voluntary statement. The
    trial judge allowed the respondents application.

[7]

In his supplementary reasons regarding the
    voluntariness ruling, dated May 31, 2013, the trial judge carefully reviewed
    the entire record of the appellants statement to the police and was satisfied
    beyond a reasonable doubt that the statement was voluntary:
R. v.
    Pandurevic
, 2013 ONSC 3108. Among other relevant factors, he considered
    and rejected the appellants arguments that the police ignored his numerous
    requests to remain silent and offered improper inducements to encourage him to
    speak against his will. The trial judge was expressly alive to the fact that the
    police persistently questioned the appellant, notwithstanding his many
    assertions to remain silent. However, he found that the police treated the
    appellant with courtesy and respect, did not create an oppressive atmosphere,
    reconfirmed several times his right to remain silent, and did nothing improper
    to persuade the appellant to speak with them.

[8]

Since there was no question that the appellant
    had fatally stabbed Mr. Savenkov with the knife he had been carrying, the
    appellants defence at trial turned on the question of whether he had acted in
    self-defence. At the appellants request, the trial judge instructed the jury
    to apply retrospectively the amended self-defence provisions under s. 34 of the
Criminal Code
, R.S.C. 1985, c. C-46.
[1]

[9]

After two days of deliberation, the jury found the
    appellant guilty of second degree murder.

Issues

[10]

The appellant submits the trial judge made the
    following reversible errors that warrant the conviction to be overturned and justify
    a new trial:

i.

He erred in finding that the appellants
    statement to police was voluntary, given the atmosphere of oppression that the
    police created by ignoring his multiple assertions of his right to silence and
    by improperly inducing the appellant to make a statement.

ii.

His jury instruction on the law of self-defence
    was inadequate in that it undermined the appellants reliance on self-defence
    if the jury found he was the initial aggressor.

Analysis

(i)

The appellants statement to police was
    voluntary

[11]

There is no issue that the trial judge
    considered and applied the correct factors in determining the voluntariness of
    the appellants statement. As the trial judge stated at para. 2 of his reasons,

There is no dispute with respect to the nature
    and incidence of the burden of persuasion in relation to voluntariness. In
    order for a statement made by an accused person to a person in authority to be
    admissible at the instance of the Crown, the Crown must prove beyond a
    reasonable doubt that the statement was voluntary. The assessment is contextual
    and case-specific. While all of the circumstances surrounding the making of the
    statement will be relevant,
of prime concern will be whether the statement
    was induced by hope of advantage or fear of prejudice emanating from the police
    in the form of promises, threats or other mistreatment, whether the statement
    was obtained in oppressive circumstances, whether the maker of the statement
    had an operating mind, and whether the police employed improper trickery
.
    These concerns are not separate tests but rather factors tha[t] may operate
    together to undermine confidence in the voluntariness of what was said to the
    police. [Emphasis added.]

[12]

The appellant submits that the trial judge erred
    in failing to find that the investigators offered an improper
quid pro quo
of possible clemency to the appellant in exchange for a statement. Further, the
    appellant maintains that the police never had the intention to charge him with
    anything but first degree murder, regardless of what he told them, as the
    security footage of the apartment building laid the groundwork for their theory
    of first degree murder.

[13]

We do not accept these submissions. At paras. 18-22
    of his reasons, the trial judge examined the same allegations of inducement
    that the appellant renews here. He concluded, correctly in our view, that it
    was not an improper inducement for the police to say that if the appellant gave
    them exculpatory information in relation to his role in the incident, they
    would look into whether it was true, and that this might assist the appellant
    in relation to the charge of murder. As the trial judge noted, this was a
    straightforward and accurate statement of what the duty of the police would be
    with respect to any information that
[the appellant]
chose to provide them. There is no support in the record for the
    appellants submission that the police never had any intention to investigate
    what he told them, nor was this suggestion put to the police during
    cross-examination on the voluntariness
voir dire
.

[14]

While the appellant agrees that the police were
    calm and polite, he submits that they nevertheless created an oppressive
    atmosphere during the interview. Notably, he indicates that they brushed aside
    his approximately 69 assertions during the 1 hour and 22-minute interview that
    he did not wish to speak to the police except through his lawyer and dangled a
    false promise of access to counsel.

[15]

We disagree. As the trial judge noted, the
    appellant was never in doubt about his right to silence, which quickly became
    selective, in that he appeared to choose when to speak to advance his position
    and when not to respond to a question he did not wish to answer. Moreover, the
    police never made any false promises to the appellant about speaking to his
    lawyer. Rather, they told him at the outset of the interview that he could request
    at any time to leave the interview room or to use the phone if he wished to do
    so. The appellant never asked to leave the interview room and, as the trial
    judge also noted, after the police indicated that the interview was concluded,
    he prolonged the interview by asking the police what they thought of his
    circumstances and by engaging in further discussion.

[16]

We find no error in the trial judges
    determination that the appellants statement to the police was voluntary, which
    is amply supported by the record and is entitled to deference on appeal.

(ii)

The trial judges jury charge on self-defence
    was adequate

[17]

The trial judge devoted paras. 84-200 of his jury
    charge to the question of self-defence. He correctly explained to the jury the
    availability of the defence of self-defence and, at para. 86 of his charge,
    that the appellant was not guilty of any offence arising from his use of the
    knife against Mr. Savenkov if all the conditions of s. 34(1) of the
Criminal
    Code
were present, as he summarized them in relation to the appellant:

i.

the appellant believed on reasonable grounds
    that force was being used against him;

ii.

he used the knife for the purpose of defending
    or protecting himself from the use of force; and

iii.

his use of the knife was reasonable in the
    circumstances.

[18]

The trial judge explicitly instructed the jury
    that it was not the appellants responsibility to prove that the three elements
    of the defence were present. Rather, the burden was on the respondent to prove
    beyond a reasonable doubt that at least one of the three elements of the
    defence was not present.

[19]

The appellant takes issue only with the trial
    judges instructions on the third element of the defence. While the appellant
    agrees that the jury instruction on self-defence was good overall, he maintains
    the trial judges instructions on the third branch of the test concerning
    reasonableness were unclear and erroneous. According to the appellant, if the
    jury found he was the initial aggressor in the altercation with Mr. Savenkov,
    the trial judges instructions left it open to the jury to convict based on
    their natural belief that it would never be reasonable for an initial aggressor
    to act in self-defence.

[20]

We see no error with the trial judges jury
    instruction on self-defence. The trial judges instruction supplied the jury
    with the necessary analytical tools to determine this issue.

[21]

The trial judge meticulously reviewed with the
    jury the three necessary conditions for self-defence, highlighted the relevant
    evidence that pertained to each element, and repeatedly explained the
    availability of the defence even if the jury found that the appellant was the
    initial aggressor. In particular:

i.

With respect to the first element of the
    defence, the trial judge instructed the jury that it was irrelevant who
    initiated the altercation and that they would have little difficulty finding
    that the appellant reasonably believed that force was being used against him by
    Mr. Savenkov.

ii.

The trial judge directed the jury on the second
    element of the defence to consider the appellants evidence that his only
    purpose in using the knife was to defend himself against someone whom he
    thought was going to do him serious harm or kill him.

iii.

In considering the third element of the defence,
    the trial judge instructed the jury to consider all the relevant circumstances
    leading up to, surrounding, and following the encounter in the elevator and the
    lobby, not simply the commencement of the altercation between the appellant and
    Mr. Savenkov. The trial judge made it clear that if the jury concluded that the
    appellant was the initial aggressor, the appellant was not by that fact alone
    disentitled from using force to defend himself, if the appellant reasonably
    feared from Mr. Savenkovs response that he was in danger of death or
    serious bodily harm. The trial judge reviewed in his charge the various factors
    under s. 34(2) of the
Criminal Code
and again highlighted the
    appellants evidence of his defensive purpose in reaching for his knife.

[22]

That the jury was directed to consider the
    reasonableness of the appellants role in the incident did not diminish his
    right to defend himself but was a factor that the jury was required to consider
    in determining whether the appellants use of the knife against Mr. Savenkov
    was reasonable in all of the circumstances.

[23]

As a result, the jury was left in no doubt that
    the appellant was entitled to rely on self-defence, and the jury was equipped
    to assess the reasonableness of his actions, notwithstanding any conclusion
    that he was the initial aggressor in the altercation with Mr. Savenkov and had
    fatally stabbed him.

Disposition

[24]

The appeal is therefore dismissed.

Doherty
    J.A.

L.B. Roberts J.A.

A.
    Harvison Young J.A.





[1]

The appellant takes no issue on appeal with the trial
    judges application of the amended provisions of s. 34, notwithstanding that it
    was an error to do so:
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 38, 70-71.
    Even if the appellant contested the retrospective application of s. 34, this
    court has held that a case specific, functional inquiry is needed to conclude
    whether this error prejudiced the appellant at trial:
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 74-75;
R. v. Fougere
,
    2019 ONCA 505, 56 C.R. (7th) 115, at para. 3.


