R. v. Veley

R. v. Veley Collection Decisions of the Court of Appeal Date 1998-12-12 Docket numbers C22062 Judges McMurtry, Roy; Catzman, Marvin Adrian; Laskin, John Ivan Subject Criminal Decision Content DATE: 19981222 DOCKET: C22062 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT VELEY (Appellant) BEFORE: McMURTRY C.J.O., CATZMAN AND LASKIN JJ.A. COUNSEL: Irwin Koziebrocki For the appellant Roger Pinnock For the Crown respondent HEARD: December 9, 1998 ENDORSEMENT [1] The appellant Robert Veley appeals his conviction for second degree murder. He raises five grounds of appeal, which he submits, either individually or collectively, warrant a new trial or a verdict of manslaughter. 1. The s.8 Issue [2] We are not persuaded that the trial judge, Maloney J., erred in his ruling. Moreover, the appellant concedes that his consent at least permitted the police to take a sample of his blood to test it against the blood found in the truck. That evidence alone incriminated the appellant. For this reason the appellant fairly acknowledges that success on this ground of appeal would make little or no difference to the result. We agree and decline to give effect to this ground of appeal. 2. Consciousness of Guilt [3] The appellant concedes that the evidence of the car wash is admissible, but argues that the consciousness of guilt instruction contained two errors. First, he submits that the trial judge should not have treated this evidence separately from the other circumstantial evidence in the case; and, second, he submits that the trial judge erred in permitting this evidence to be used on the question whether the appellant was guilty of murder or manslaughter. [4] On the first point, the Supreme Court of Canada’s recent decision in White and Côté1 indicates that post- offence conduct should be left together with the other circumstantial evidence in the case and should not be treated separately in the charge. Nonetheless, we find no reversible error in the trial judge’s instruction in this case. The charge on consciousness of guilt was short, fair and balanced, and the trial judge recharged the jury on this issue as requested by defence counsel. [5] On the second point, the evidence was relevant to show that the appellant was aware that he had committed a culpable act and to rebut a defence of intoxication. See Peavoy2; and Mulligan3. Moreover, the trial judge did not tell the jury that this evidence was relevant to the distinction between murder and manslaughter. He said only that it was relevant to the appellant’s guilt or innocence, which was a fair instruction in the light of the appellant’s own evidence. This ground of appeal fails. 3. Intoxication and Intent [6] The trial judge gave a pre-Robinson4 charge on intoxication. An appellate court, however, should only interfere with such a charge if it is of the view that there is a reasonable possibility the jury was misled and would not appreciate that they had to find the requisite intent for second degree murder. Reviewing those portions of the charge where the trial judge addressed intoxication and intent, we are satisfied that the jury would have understood that they had to find the required intent to convict the appellant of second degree murder. Therefore, we do not give effect to this ground of appeal. 4. The Common Sense Inference [7] The trial judge did not expressly link the inference that a sane and sober person intends the consequences of his or her actions to the evidence of intoxication as suggested in Robinson. But we think that it was obvious to everyone in the courtroom that the appellant was not sober when he committed this offence. This ground of appeal fails as well. 5. The Expert Evidence [8] Dr. Orchard’s evidence was the last evidence that the jury heard and it would have been fresh in their minds. Moreover, although the trial judge did not deal with this evidence at great length, his portrayal of Dr. Orchard’s testimony was fair. We find no error in his charge on Dr. Orchard’s evidence. [9] For all of these reasons the appeal is dismissed. _______________________________ 1 R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.). 2 R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.). 3 Mulligan v. The Queen (1997), 115 C.C.C. (3d) 559 (Ont. C.A.). 4 R. v. Robinson (1996), 105 C.C.C. (3d) 97 (S.C.C.).