



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chis, 2019 ONCA 289

DATE: 201904011

DOCKET: C63438

Feldman, Fairburn and Nordheimer JJA

BETWEEN

Her Majesty the Queen

Respondent

and

Christian Chis

Appellant

Adam Weisberg and Michelle Psutka, for the appellant

Jill Cameron, for the respondent

Heard: April 4, 2019

On appeal from the conviction entered by Justice Michelle
    Fuerst of the Superior Court of Justice, sitting with a jury, on April 14, 2015.

REASONS FOR DECISION

[1]

Mr. Chis appeals from his conviction for first degree murder. He raises
    two issues on his appeal. First, he submits that his conviction for first
    degree murder was an unreasonable verdict. Second, he submits that the trial
    judges instructions to the jury on the requisite element of planning and
    deliberation were flawed. In either case, the appellant submits that the
    conviction for first degree murder cannot stand and that a conviction for
    second degree murder should be substituted.

[2]

The appellant was convicted of the murder of his neighbour. They knew
    one another. The neighbour was retired and lived on a farm south of the
    appellants residence. The evidence showed that the deceased was hit in the
    head with an instrument, causing multiple skull fractures and resulting in his
    death. The deceaseds head was discovered in a farmers field approximately two
    months after his murder. The rest of the deceaseds body has never been found.

[3]

The evidence also showed that the victim had a large sum of money in his
    bank accounts. The trial Crown alleged a motive for the killing: financial
    gain. The evidence showed that the appellant, along with others, accessed the deceaseds
    bank accounts using his debit cards and associated PINs on the evening of the
    murder and in the following days.

[4]

At trial the appellant testified and denied he was the murderer. The
    jury had to decide first whether he was the murderer and second, if he was, if
    the killing was planned and deliberate.

[5]

On appeal the appellant does not challenge the jurys finding that he
    was the killer and that he intended to kill his neighbour. He therefore
    concedes that he is guilty of second degree murder. The appellants complaint
    is solely directed at the finding of guilt for first degree murder. He contends
    that there was no evidence upon which a properly instructed jury could find
    beyond a reasonable doubt that the murder involved planning and deliberation. The
    appellant says that the verdict of first degree murder is therefore
    unreasonable and we should substitute a verdict of second degree murder. We
    disagree.

[6]

The test for an unreasonable verdict was stated recently in
R. v.
    Mendez
, 2018 ONCA 354, where Pardu J.A. said, at para. 20:

A verdict is unreasonable if "a properly instructed jury,
    acting judicially could not have come to that verdict" [citations omitted].

[7]

In our view, it was open to the jury, on the evidence, to find that this
    murder was planned and deliberate. There was evidence from which the jury could
    infer that the date of the murder was June 26, 2011. A witness testified that the
    appellant had approached him to ask about facilitating contact with other
    people who might be in a position to use the fraudulent bank cards. Although
    that witness was a
Vetrovec
witness, it was up to the jury to decide what
    weight to give to his evidence. We agree with the respondent that there was
    some evidence upon which the jury could infer that the appellants initial approach
    to that witness came about a week before the murder. Phone records demonstrate
    that the appellant was, in fact, in touch with that witness in the week before
    the murder.

[8]

In his closing submissions, defence counsel (not counsel on appeal)
    appears to have accepted that the witness testified to that effect. On that
    basis alone, the jury could have come to the conclusion that this was a first
    degree murder.

[9]

In addition to the evidence referred to above, further support for
    planning and deliberation is found in the nature and circumstances of the
    murder. There was evidence that the appellant told a witness that he had beaten
    and kicked the victim in order to obtain his PINs for the debit cards. That
    statement accorded with the forensic pathology evidence. The jury could find
    that killing the victim, so that he could not alert the police or the banks to
    the theft of his cards by the appellant, was a necessary part of any plan to
    use those cards to take the deceaseds money.

[10]

This
    ground of appeal fails.

[11]

As
    for the second ground of appeal, there is no issue respecting the trial judges
    legal instruction to the jury on planning and deliberation. Rather, the appellant
    says that the trial judge failed to properly relate the evidence to the element
    of planning and deliberation. In her instructions to the jury on the evidence
    relating to planning and deliberation, the trial judge said:

I have already reviewed with you the evidence about Mr. Gavins
    bank accounts and the debit cards linked to them; the cell phone contact
    between Mr. Chis and Netis Patel on June 21st, 2011; Mr. Chiss utterance to
    Nayan Patel that he killed someone for the debit cards, along with Mr. Chiss
    denial that he made that utterance; Mr. Chiss utterance to Mr. Sawh-Bhawanie
    that he punched and kicked a person until he got the PIN numbers for the debit
    cards, along with Mr. Chiss denial that he made that utterance; the absence of
    activity on Mr. Chiss cell phone on the afternoon and early evening of June
    26th, 2011; the date and time of Mr. Gavins murder; the movement of Mr. Chiss
    cell phone south to Scarborough and Markham on the night of June 26th, 2011;
    Mr. Chiss cell phone calls on the night of June 26th, 2011, to the phone used
    by Mr. Sawh-Bhawanie; the use of Mr. Gavins debit cards by Mr. Shanmuganathan
    on the night of June 26th, 2011; the use of Mr. Gavins debit cards thereafter,
    including by Mr. Chis; the evidence of Mr. Shanmuganathan and Mr. Patel that
    they gave money they withdrew to Mr. Chis, along with Mr. Chiss denial that he
    was the person providing the cards to the others to use.

You can consider all of this evidence in deciding whether Crown
    counsel has proven beyond a reasonable doubt that the murder of Mr. Gavin was
    planned and deliberate on the part of Mr. Chis.

[12]

The
    appellant says that the above summary was too cursory. The trial judge needed
    to explain to the jury what evidence they should consider, how it might inform
    planning and deliberation, and how it might equally support an inference of
    nothing more than a murder committed in the heat of the moment. We disagree.

[13]

The
    trial judge had referred in detail to those same pieces of evidence earlier in
    other parts of her charge. The jury, therefore, would have been completely
    familiar with the details of that evidence and how it related to the issues
    that they had to determine. Indeed, the trial judge reminded the jury that she
    had already reviewed all of that evidence with them. We would also note that
    this specific objection was not made by defence counsel at the pre-charge
    conference  even though the instruction on planning and deliberation was the
    subject of discussion.

[14]

It
    is not necessary that evidence be repeated in all its details each time it
    relates to a different issue in jury instructions. One objective of jury
    instructions is to give a clear, but concise, recitation of the evidence  not
    a constant repetition of it. That observation is consistent with the concern
    about ever lengthening jury charges. As Moldaver J. observed in
R. v.
    Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 42:

It is apparent that taming the unchecked expansion of jury
    charges is not merely advisable  it is a legal necessity.

[15]

In
    our view, the instructions to the jury, read as a whole, provided the jury with
    the tools required to determine the issue of planning and deliberation. This
    ground of appeal also fails.

[16]

In
    the end result, the appeal is dismissed.

K.
    Feldman J.A.
Fairburn J.A.
I.V.B. Nordheimer J.A.


