IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Golic,

 

2017 BCSC 1679

Date: 20170920

Docket: 26910

Registry: Vancouver

Regina

v.

Arvin Golic

Before: The Honourable Madam Justice Humphries

Ruling on Admissibility of Evidence on Sentence

Counsel for the Crown:

Henry J.R. Reiner Q.C.

Julie M. Robinson

Counsel for the Accused:

Matthew A. Nathanson
Kelsey Selbee
Alice Vo

Place and Date of Hearing:

Vancouver, B.C.

September 13 - 14, 2017

Place and Date of Judgment:

Vancouver, B.C.

September 20, 2017

[1]             On June 6, 2017, Mr. Golic was convicted of manslaughter in the death of Luka Gordic which occurred on May 17, 2015 in Whistler, B.C. Sentencing submissions were to begin on September 13, 2017 but an issue arose as to the admissibility of evidence the Crown wishes to adduce on sentence. The defence opposes the admission of this evidence.

[2]             A voir dire was held to determine the admissibility of the evidence.

[3]             The evidence consists of a transcript of a tape recording of a complaint made by Devon Luksic to the police on June 6, 2016, as well as a screen shot of a text message alleged to be from Arvin Golic to Devon Luksic, sent the same day. After considering the issue of whether, if the evidence were admitted, Ms. Luksic should be called in person to give evidence, the defence decided that would not be necessary. The transcript and screen shot were sufficient.

[4]             At trial, I concluded that Mr. Golic and a group of his friends had assaulted Mr. Gordic, and during the assault, Mr. Gordic was stabbed by one of Mr. Golic’s friends, a youth who has been tried, along with two others, in a separate proceeding. The motive behind the attack was Mr. Golic’s anger at Mr. Gordic for having told Mr. Golic’s acquaintance, a youth named Ramin, that Mr. Golic should stop abusing Ms. Luksic. Ms. Luksic and Mr. Golic had dated for some time but had broken up prior to the Whistler incident. Over the course of the weekend at Whistler, Ms. Luksic had received dozens of texts, emails, and calls from Mr. Golic. The texts, emails, and phone records were entered as evidence at trial.

[5]             On June 6, 2016, Ms. Luksic told the police officer that she received a call from Arvin Golic that morning just before 11:00 a.m. Ms. Luksic said Mr. Golic said to her: “Hey, you stupid bitch, you know it’s me”; she then stated that “he started saying that I was seeing another guy that he knows and that he has a beef with that guy.”  Ms. Luksic told Mr. Golic to stop contacting her, and he responded, “No fuck you, I’m gonna kill you and everyone that you talk to”. She said she would contact the police and send him to jail. She said Mr. Golic told her words to the effect of “you’re a stupid bitch, a shady bitch, you’re stabbing me in the back.”  He said he wanted to kill her and anyone that she talks to, and to watch her back. He also threatened the “Serbs” that is, Luka Gordic’s friends, and said they should watch their backs.

[6]             Shortly after 12:00 p.m. Ms. Luksic received a text from Mr. Golic, saying he was sorry, he wants the best for her, asking her to call him one last time and she would never hear from him again, and saying she stabbed him in the back like no one ever could, and saying he did not know she did not want to hear from him. The general tone of the text is placatory and somewhat affectionate. Ms. Luksic told the officer she knew Mr. Golic sent this because he realized she would go to the police.

[7]             Ms. Luksic said in the statement that this was the way Whistler started - because Mr. Golic thought she was seeing one of Luka’s friends, which she was not. She did not want anything to happen again.

[8]             Any contact between Mr. Golic and Ms. Luksic was forbidden by the terms of his bail. Following this report, a charge of threatening was laid and his bail was revoked.

[9]             The defence denies that the phone call took place, but is content to deal with the merits of the evidence through the transcript. However, I gather the defence does not foreclose calling evidence on the issue, should the evidence be admitted, and suggests the sentencing proceedings will be unduly prolonged and diverted from its true purpose if this side issue is allowed to proceed. Much of the defence submissions were aimed at showing how unreliable Ms. Luksic is.

[10]         The defence says the court should exercise its discretion not to admit this evidence, referring to the check list set out in R. v. Edwards, 2001 O.J. No. 2582, at para. 64: that is, the evidence does not shed light on the circumstances of the offence, it has no similarity to the offence, it will unduly prolong the hearing, has minimal cogency, and will not affect the sentence in any event.

[11]         The Crown does not say this evidence is an aggravating factor; thus it will not be used to increase the sentence and need not be proven beyond a reasonable doubt. However, as the allegation that the phone call took place is a disputed fact, it must be proven on a balance of probabilities, according to s. 724(3)(d) of the Criminal Code.

[12]         The Crown says the relevance of this evidence is high - it could not be more significant to the issues of insight and remorse, and is highly germane to the issue of rehabilitation. Whereas the offender could have been overcome with regret and remorse at the death of Luka Gordic, this evidence shows he was still behaving the same way a year later, triggered by perceived attention by another young man to the same young woman who was at the center of the attack on Mr. Gordic.

[13]         Thus the Crown says it is generally relevant, and if Mr. Golic attempts on sentence to put forward evidence of good character, this goes directly to that point, as well as to remorse or lack thereof.

[14]         There does not seem to be much difference between counsel on the law that pertains to the introduction of evidence of other uncharged and/or untried offences on sentencing. Both referred to the helpful discussion by the Ontario Court of Appeal in Edwards, which has been adopted by the British Columbia Court of Appeal in R. v. McDonald, 2017 BCCA 271, and by the Alberta Court of Appeal in R. v. Roberts, 2006 ABCA 113.

[15]         This type of evidence is admissible for the limited purpose of showing the background and character of the offender. The trial judge has a discretion to refuse to admit this evidence.

[16]         The checklist in Edwards is useful. In addition to the factors already referred to, the court said the sentencing judge must consider the proposed use of the evidence. The Crown has outlined some prospective uses of the evidence but its ultimate significance is not yet known.

[17]         Edwards mentions the nexus between the proposed evidence and the offence, as well as any similarity between the evidence and the offence. While the evidence of a threat to Ms. Luksic does not, at first blush, appear to have a nexus with the death of Mr. Gordic, in fact, Mr. Golic’s obsession with Ms. Luksic and any other perceived romantic interest she has is at the heart of the Whistler incident and is also the basis of the reported phone call.  

[18]         According to Edwards, I must also consider the difficulty the offender may encounter in properly defending against the allegations. He has, through his counsel, denied it, and his counsel has carefully gone through the statement, describing defects and weaknesses in it. While the Crown disagrees with those submissions, this is a discrete event, and whether or not it took place is within the knowledge of the offender. I do not see inability to defend as a consideration that would warrant exercising my discretion not to admit this evidence.

[19]         Whether it will unduly prolong proceedings is not clear - defence has not stated whether they will be content to deal with the reliability and/or weight to be accorded to the statement on the basis of the types of submissions they have already made or whether they will call evidence. However, given the limited purpose for which this evidence is admissible, I cannot see the trial becoming unduly diverted. If that appears to be the case, I will deal with it at the time.

[20]         I note that Edwards refers to one consideration that is still undetermined:  whether the accused has adduced evidence of good character. This is still to come, and may give an added measure of cogency to this evidence.

[21]         I considered whether to defer this ruling until that was known, but I agree with the Crown that the evidence is generally relevant and could go to the issue of character and lack of remorse. It may be relevant to the issue of rehabilitation.

[22]         The Crown may also submit that it is useful if there is evidence of good character or expressions of remorse to come.

[23]         On the other hand, defence may convince me that Ms. Luksic’s past record for truthfulness in regard to communications with Mr. Golic, which was thoroughly covered at trial, is such that I should not accept that the call occurred as she reported it, should not rely on this piece of evidence, or in any event give it little weight. This will all be the subject of further argument at the sentence hearing.

[24]         I agree that the evidence is potentially relevant and should be admitted. It is important to emphasize that the evidence cannot be used to increase sentence. Mr. Golic is not on trial for threatening. The use of the evidence must be closely circumscribed. The weight to be attached to it, if any, and the importance it will ultimately assume is still to be seen.

[25]         The transcripts of the statement and the text are admissible.

“The Honourable Madam Justice Humphries”