R. v. Polimac (M.), 2010 ONCA 346

• Judge: Winkler, C.J.O., Doherty and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 12, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 346;(2010), 262 O.A.C. 91 (CA)

R. v. Polimac (M.) (2010), 262 O.A.C. 91 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.059

Her Majesty the Queen (respondent) v. Milorad Polimac (appellant)

(C46344; 2010 ONCA 346)

Indexed As: R. v. Polimac (M.)

Ontario Court of Appeal

Winkler, C.J.O., Doherty and Feldman, JJ.A.

May 12, 2010.

Summary:

The accused and his common law wife (Pauls) had been hiking together. Pauls fell from a cliff and died. The accused was convicted of first degree murder. The trial turned essentially on the issue of whether the Crown proved beyond a reasonable doubt that the accused pushed Pauls off the cliff. The accused appealed from the conviction, arguing that (1) the trial judge erred in admitting certain statements made by Pauls to friends; (2) the trial judge erred in her instructions to the jury relating to the permissible uses of statements made by the accused concerning the events surrounding Pauls' fall; and (3) the trial judge erred in her instructions to the jury relating to the evidentiary value of certain after the fact conduct of the accused.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - The accused and his common law wife (Pauls) had been hiking together - Pauls fell from a cliff and died - The accused was convicted of first degree murder - The trial turned essentially on the issue of whether the Crown proved beyond a reasonable doubt that the accused pushed Pauls off the cliff - The accused had made various statements to first responders, friends, and police investigators concerning the circumstances of Pauls' death - On appeal, the accused argued that the trial judge's instructions were inadequate with respect to the potential exculpatory value of the statements - He submitted that the trial judge's failure to specifically allude to the statements and their potential exculpatory value constituted reversible error - The Ontario Court of Appeal rejected the argument - It could not have been lost on the jury that the accused's exculpatory statements and explanations constituted evidence that, if believed, supported the defence position - The trial judge gave counsel a copy of her proposed jury charge before it was delivered - Counsel took no objection to the manner in which the trial judge proposed to deal with the exculpatory value of the out-of-court statements - Counsel's acquiescence to the instructions, particularly after having been given a full opportunity to raise any perceived shortcomings, had to be given considerable weight when considering an objection raised for the first time on appeal that, in effect, argued that the jury instructions significantly undermined the defence position advanced at trial - See paragraphs 83 to 89.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - The accused and his common law wife (Pauls) had been hiking together - Pauls fell from a cliff and died - The accused was convicted of first degree murder - The trial turned essentially on the issue of whether the Crown proved beyond a reasonable doubt that the accused pushed Pauls off the cliff - The accused had made various statements to first responders, friends, and police investigators concerning the circumstances of Pauls' death - The Crown relied on portions of those statements, contending that they contained lies that were capable of supporting the Crown's position that the accused had fabricated a story in an effort to hide the fact that he had pushed his wife from the cliff - On appeal, the accused argued that the trial judge's instructions were inadequate with respect to the potential inculpatory use of parts of the statements as circumstantial evidence of guilt - The accused submitted that the trial judge failed to draw the distinction between the jury's rejection of those statements as false and the jury's use of those statements as evidence of fabrication from which to infer guilt - The accused contended that the trial judge failed to make it clear to the jury that before the statements had any value to the Crown's case, the jury must find that they were deliberately false and must further find from circumstances other than those demonstrating the falsity of the statements that the statements were fabricated to avoid liability - The Ontario Court of Appeal held that the trial judge's treatment of the out-of-court statements in her instructions was appropriate - See paragraphs 90 to 106.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4375.1 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - The Ontario Court of Appeal stated that "Counsel's duty to assist the court in fulfilling its obligation to properly instruct the jury, referred to by Fish, J., in R. v. Khela, [2009] 1 S.C.R. 104 at para. 49, takes on added significance where counsel has been given a full copy of the proposed instructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge. In those circumstances, counsel's position at trial becomes very important when evaluating complaints, raised for the first time on appeal, that matters crucial to the defence were not properly addressed by the trial judge in her instructions. Counsel's position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal error remains a legal error even if counsel does not object or even supports the erroneous instruction" See paragraphs 96 to 97.

Criminal Law - Topic 4399.1

Procedure - Charge or directions - Jury or judge alone - Directions re false statements by accused - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused appealed from his conviction for first degree murder in the death of his common law wife - The accused argued that the trial judge erred in leaving with the jury the evidence of the accused's expressed desire to have Pauls' body cremated, and his indication that there should be no death notice placed in the paper, as evidence that could support the Crown's contention that the accused murdered Pauls - The accused's counsel noted that the accused knew that an autopsy would be conducted before any cremation occurred, that when Pauls' family expressed a preference for a funeral and burial the accused readily agreed, and that the accused did place a death notice in the paper after a friend told him that there were people who would want to pay their respects - The Ontario Court of Appeal rejected this ground of appeal - The trial judge made it clear to the jury that it was for them to determine what inference, if any, should be drawn from the accused's conduct after Pauls' death - She accurately summarized the evidence and the positions of the parties and she referred to the evidence counsel for the accused had summarized as neutralizing any potential adverse inference from that evidence - She also advanced an opinion that the evidence had little value - The court was confident that the jury would not have ascribed any weight to this evidence - See paragraphs 107 to 111.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused appealed from his conviction for first degree murder in the death of his common law wife (Pauls) - The accused argued that the trial judge misdirected the jury as to the inference that could be drawn from comments made by the accused at Pauls' graveside when he told Pauls that he loved her and missed her - According to the accused, he was unaware that his communications at the graveside were being surreptitiously intercepted by the police - The Ontario Court of Appeal rejected this ground of appeal - The trial judge reviewed the evidence of the graveside visits while discussing the surveillance evidence and had stated that "The Crown might say that you will find [the accused] was aware or suspicious about surveillance ... " - Even though the Crown at trial did not argue that the accused may have been concerned about surveillance at the graveside, the court saw no error in this instruction - The trial judge accurately reviewed the evidence and correctly observed that the accused was conscious of police surveillance during that time period - The trial judge did not suggest that any comments made at the graveside had any inculpatory value - She simply reminded the jury that as of the date the accused made the comments at the graveside, he was concerned about ongoing police surveillance - See paragraphs 112 to 116.

Criminal Law - Topic 4862

Appeals - Indictable offences - Grounds of appeal - Where law changed after trial but before appeal heard - [See first Evidence - Topic 1527 ].

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See Criminal Law - Topic 4392 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed from his conviction for first degree murder in the death of his common law wife (Pauls) - The accused argued that the trial judge erred in admitting four statements made by Pauls to friends - He relied on the change in the law effected in R. v. Khelawon (S.C.C.), which was decided after the trial judge's ruling - Khelawon permitted a trial judge considering reliability for the purpose of determining the admissibility of hearsay evidence to look beyond the circumstances surrounding the making of the statements to extrinsic evidence that might support or undermine the reliability of the hearsay statements - The Ontario Court of Appeal stated that the accused was entitled to rely on Khelawon to challenge the correctness of the trial judge's ruling - However, the court stated that "The correctness of the trial judge's ruling cannot turn on this court's assessment of the reliability of Ms. Pauls' statements based on a review of the entirety of the trial record. On appeal, both the appellant and the Crown must take the voir dire record as it exists. The appellant bears the onus of showing that, on that record and on the law as it stands post-Khelawon, the trial judge erred in admitting the hearsay statements made by Ms. Pauls" - The court further stated that "Although the post-Khelawon reliability assessment is somewhat different than that engaged in by the trial judge when determining the admissibility of Ms. Pauls' statements, I would still defer to her findings of fact and her weighing of the various factors that she did consider ... The consideration of extrinsic evidence where appropriate, as mandated by Khelawon, does not justify a de novo assessment of admissibility on appeal, but does mandate a consideration of that extrinsic evidence as an additional factor to be examined in the context of the assessment made by the trial judge of the other factors relevant to the reliability of the statements" - See paragraphs 59 to 61.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed from his conviction for first degree murder in the death of his common law wife (Pauls) - The accused argued that the trial judge erred in admitting certain statements made by Pauls to friends, in which Pauls referred to, inter alia, verbal and physical abuse by the accused - The accused relied on the change in the law effected in R. v. Khelawon, which was decided after the trial judge's ruling - Khelawon permitted a trial judge considering reliability for the purpose of determining the admissibility of hearsay evidence to look beyond the circumstances surrounding the making of the statements to extrinsic evidence that might support or undermine the reliability of the hearsay statements - The Ontario Court of Appeal stated that the accused was entitled to rely on Khelawon to challenge the correctness of the trial judge's ruling - The court concluded that the statements made by Pauls were properly admitted by the trial judge - See paragraphs 55 to 82.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed from his conviction for first degree murder in the death of his common law wife (Pauls) - The accused argued that the trial judge erred in admitting certain statements made by Pauls to friends, in which Pauls referred to, inter alia, verbal and physical abuse by the accused - The accused argued that the trial judge erred in using the absence of evidence that Pauls had a motive to lie when making her statements as evidence of the reliability of those statements - The accused submitted that the trial judge erred in equating the absence of evidence of motive with the existence of evidence from which it could be reasonably inferred that Pauls did not have a motive - The Ontario Court of Appeal stated that "The absence of evidence of a motive to lie, while obviously of significantly less probative value than evidence that the declarant had no motive to lie, is still part of the overall evidentiary picture to be assessed when determining the reliability of the hearsay statement. In this case, the absence of any evidence of a motive to lie left the probative worth of the indicia of reliability referred to by the trial judge unimpaired" - See paragraphs 78 to 80.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed from his conviction for first degree murder in the death of his common law wife (Pauls) - The accused argued that the trial judge erred in admitting certain statements made by Pauls to friends, in which Pauls referred to, inter alia, verbal and physical abuse by the accused - The accused argued that the trial judge erred in using the absence of evidence that Pauls had a motive to lie when making her statements as evidence of the reliability of those statements - The accused's counsel submitted that the deteriorating nature of the relationship between the accused and Pauls and their pending break-up provided Pauls with a motive to lie to her friends to put the accused in a bad light - The Ontario Court of Appeal rejected the submission that there was evidence that Pauls had a motive to lie to her friends about the accused's abuse - The accused's argument was based on a generalized assumption about failing relationships rather than any specific evidence heard on the voir dire - The trial judge concluded, having regard to the entirety of the circumstances in which the statements were made, that the deteriorating nature of their relationship did not constitute a motive on Pauls' part to lie to her friends - That assessment could not be characterized as unreasonable - The court had to defer to the trial judge's assessment of the evidence - See paragraphs 81 to 82.

Cases Noticed:

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 56].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 58].

R. v. T.R. (2007), 224 O.A.C. 131; 85 O.R.(3d) 481; 2007 ONCA 374, refd to. [para. 59].

R. v. S.S. (2008), 233 O.A.C. 342; 232 C.C.C.(3d) 158 (C.A.), refd to. [para. 59].

R. v. Sharif (I.S.) (2009), 275 B.C.A.C. 171; 465 W.A.C. 171; 2009 BCCA 390, refd to. [para. 59].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 59].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 61].

R. v. Duong (T.D.) (2007), 220 O.A.C. 131; 84 O.R.(3d) 515 (C.A.), refd to. [para. 61].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34; 2009 ONCA 645, refd to. [para. 61].

R. v. Griffin (J.) et al. (2009), 388 N.R. 334; 244 C.C.C.(3d) 289; 2009 SCC 28, refd to. [para. 65].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 79].

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 233 C.C.C.(3d) 319 (C.A.), refd to. [para. 81].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 89].

R. v. K.M.E. (2009), 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 245 C.C.C.(3d) 183; 2009 SCC 27, refd to. [para. 89].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161, refd to. [para. 90].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), refd to. [para. 90].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 90].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 90].

R. v. Tessier (R.J.) (1997), 87 B.C.A.C. 269; 143 W.A.C. 269; 113 C.C.C.(3d) 538 (C.A.), refd to. [para. 90].

R. v. Tanasichuk (D.D.) (2007), 321 N.B.R.(2d) 44; 827 A.P.R. 44; 227 C.C.C.(3d) 446; 2007 NBCA 76, refd to. [para. 90].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 96].

R. v. Wright (R.) (2009), 254 O.A.C. 55; 98 O.R.(3d) 665 (C.A.), refd to. [para. 97].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 97].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51 (C.A.), refd to. [para. 109].

R. v. Allen (G.W.) (2009), 464 A.R. 208; 467 W.A.C. 208; 249 C.C.C.(3d) 296; 2009 ABCA 341, refd to. [para. 109].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2003 Looseleaf), para. 7:160.10 [para. 85].

Counsel:

Philip Campbell, for the appellant;

John Pearson and Robin Flumerfelt, for the respondent.

This appeal was heard on November 24 and 25, 2009, before Winkler, C.J.O., Doherty and Feldman, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on May 12, 2010.