On appeal Belisle argued, inter alia, that the trial judge erred in failing to instruct the jury on post-offence conduct and by failing to provide a Vetrovec instruction in relation to Barry and Tester. Counsel at trial did not request either of those instructions.
With respect to the post-offence conduct, Gillese JA, for the court, noted that there were two actions which were impugned post-offence actions. First, while in the home after the stabbing Belisle saw Brunetti making a phone call. He asked who she was calling and she indicated an ambulance. He stated, “You’re not phoning anyone, he’s dead”. Brunetti screamed, “He’s dead?” and Belisle stated, “No, not yet”. Second, Tester reported that Belisle told him to “shut up, or I’ll kill you too”.
Gillese JA held that a charge on this alleged “post-offence conduct was not required. The first comment was referred to by the Crown as evidence that Belisle was capable of forming the intent for murder (as intoxication was raised); the second comment was referred to by the Crown as evidence that Belisle was prepared to kill Tester just as he had killed Anderson. Since the “post-offence” conduct was not evidence of “consciousness of guilt”, Gillese JA held no charge was required, citing R v White, 2011 SCC 13.
With respect to the Vetrovec issue, Gillese JA noted that the evidence of Tester and Barry was “confirmed by the evidence of Jean Brunetti and the forensic evidence” [para 21]. Gillese JA also noted their evidence was important to the defence. As “mixed witnesses” the typical Vetrovec charge was discretionary. Gillese JA noted that the trial judge “carefully reviewed the two witnesses’ evidence and gave careful instructions on how to assess credibility and reliability, and the significance of prior inconsistent statements” [para 23]. The trial judge properly exercised their discretion in not giving a Vetrovec warning.