R. v. Czibulka (L.), 2011 ONCA 82

• Judge: Laskin, Sharpe and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 16, 2010
• Jurisdiction: Ontario
• Citations: 2011 ONCA 82;(2011), 275 O.A.C. 64 (CA)

R. v. Czibulka (L.) (2011), 275 O.A.C. 64 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.006

Her Majesty the Queen (respondent) v. Lajos Czibulka (appellant)

(C48343; 2011 ONCA 82)

Indexed As: R. v. Czibulka (L.)

Ontario Court of Appeal

Laskin, Sharpe and Epstein, JJ.A.

January 31, 2011.

Summary:

A jury found the accused guilty of second degree murder. The trial judge sentenced the accused to life imprisonment without eligibility for parole for 15 years. The accused appealed the conviction and the sentence.

The Ontario Court of Appeal dismissed the appeals.

Criminal Law - Topic 1265

Offences against person and reputation - Murder - General principles - Jury charge - General - At the accused's murder trial, he maintained that his repeated utterances to the paramedics "she no dead", coupled with his intoxication and emotional state amounted to compelling evidence that he lacked the requisite intent for murder - The Crown relied mainly on the severity and persistence of the victim's beatings to show an intent to kill - The Crown also led evidence of the accused's post-offence conduct - The accused appealed his conviction for second degree murder, asserting that the judge erred by not telling the jury that his post-offence conduct could not be used to determine whether he was guilty of murder or manslaughter and by failing to relate the evidence to the mens rea for murder - The Ontario Court of Appeal rejected the assertions - The impugned instructions on post-offence conduct came in the part of the charge dealing with the issue of identity - On that issue, the accused's post offence conduct was relevant in deciding whether he was culpable at all - Moreover the instruction was balanced - The most that the accused could say was that the judge failed to give a limiting instruction - Perhaps a limiting instruction might have been preferable, but the absence of one did not deprive the accused of a fair trial - Further, the charge was extensively vetted with counsel in the pre-charge discussion - The accused's counsel neither objected nor asked for a limiting instruction - With respect to the alleged failure to relate the evidence to the mens rea for murder, the court was satisfied that the charge was adequate - See paragraphs 53 to 64.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 4415

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting evidence of witnesses - At the accused's murder trial, the Crown's expert testified that the accused's DNA under the victim's fingernails had probative value - In its closing address to the jury, the Crown suggested that the absence of anyone else's DNA under the victim's fingernails was also significant - The accused appealed his conviction for second degree murder, asserting that the Crown misstated the expert's evidence and that the trial judge erred by failing to correct the comment - The Ontario Court of Appeal agreed with the Crown that the suggestion was fair advocacy and not a misstatement of the evidence - In the expert's evidence, which the trial judge recited to the jury, she referred to studies showing that DNA was transferred by severely scratching another person - The accused had scratch marks on him - If the jury accepted that the victim might have used her hands to try to fend off her attacker's brutal beating, one might fairly expect that the attacker's DNA would be under her fingernails - The Crown simply asked the jury to draw that inference - No correction from the judge was needed - See paragraphs 46 to 48.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - At a jury trial for murder, the admissibility of six statements made by the accused were in issue - The trial judge admitted the first four statements - The judge excluded the fifth and sixth statement on the basis that they were incomprehensive and thus their prejudicial effect outweighed their probative value - The fourth, fifth and six statements were made at the police station - The fifth and sixth statements were videotaped - The fourth statement, which was made just before the fifth and sixth statements, was not videotaped - The accused appealed his conviction for second degree murder, asserting that the judge should have excluded the fourth statement because it was incoherent - The accused challenged the adequacy of the judge's reasons for the ruling - The Crown asserted that the court should not consider the alleged inadequacy because the accused never requested "full reasons" although the judge had reserved the right to deliver them "if necessary" - The Ontario Court of Appeal rejected the Crown's assertion - The obligation to deliver adequate reasons rested on the trial judge - Neither the Crown nor the defence had any onus to request better reasons - That said, trial judges were entitled in appropriate instances to deliver summary rulings with further reasons to follow - They might need to do so to keep a long and complicated trial, especially a jury trial, moving forward without undue delay - Undoubtedly that was why the judge here delivered a summary ruling - Where "full reasons" did not follow a summary ruling and the ruling was appealed, then an appellate court had to assess whatever reasons were delivered - The judge's reasons here did not preclude a meaningful review - The court reviewed the fourth statement and affirmed the judge's decision - Even if the statement should have been excluded, the error would have been harmless as the jury had heard other admissible evidence that duplicated the inculpatory aspects of the fourth statement and the Crown had an overwhelming case - The admission would have caused no substantial wrong or miscarriage of justice - See paragraphs 34 to 44.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 5210

Evidence and witnesses - Admissibility and relevancy - Statements prejudicial to the accused - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 5313.01

Evidence and witnesses - Inferences - From consciousness of guilt - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 5318

Evidence and witnesses - Inferences - From opportunity - The accused appealed his conviction for second degree murder, asserting that the Crown, in seeking to show that he had the exclusive opportunity to commit the crime, went too far by telling the jury that they could rely on the lack of evidence that anyone else was present - The accused asserted that the trial judge should have instructed the jury that they could not rely on a lack of evidence that anyone else was present to find exclusive opportunity, instead they had to rely on positive evidence - The Ontario Court of Appeal rejected the accused's assertion - The absence of evidence that anyone else was present at the relevant time could be used to establish exclusive opportunity - See paragraphs 49 to 51.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused was convicted for the 1998 murder of his wife (second degree) and sentenced to life imprisonment without eligibility for parole for 15 years - The accused asserted that the trial judge erred in fixing the range of parole ineligibility for a brutal spousal murder at 12 to 17 years - Relying on R. v. McKnight (Ont. C.A., 1999), he asserted that the appropriate range was 12 to 15 years - The Ontario Court of Appeal rejected the assertion - The range was not cast in stone - Sentencing ranges were guidelines rather than hard and fast rules - Sentencing remained an individualized process - The range stipulated in McKnight was driven by previous case law and by several mitigating considerations in the case itself - Moreover, a few months after McKnight, the court in R. v. Wristen (Ont. C.A.), another case involving a brutal spousal murder, the court imposed a 17 year period of parole ineligibility - The trial judge took Wristen to reflect the upper end of the range and could not be faulted for doing so - At trial, both Crown and defence accepted a 12 to 17 year range - The trial judge did not impose 17 years because of mitigating considerations (the accused's age (64), his employment record, his one prior impaired driving conviction, and the lack of evidence of previous domestic abuse) - However, in the judge's view, the aggravating considerations warranted a sentence in the middle, not the lower end of the range - Those factors included the accused's deliberate demeaning of his wife to distract the investigation and to cover up his own guilt - More particularly, the singular aggravating factor was the persistent and protracted beating administered to his defenceless wife, coupled with his unspeakable indifference to her suffering after the beating was administered which branded the offence as one of conspicuous brutality, callousness and cruelty - The court agreed with that assessment - The 15 year period of parole ineligibility was fully justified - See paragraphs 65 to 73.

Criminal Law - Topic 5831.6

Sentencing - Considerations on imposing sentence - Sentence norm at time of offence - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5881

Sentence - Murder - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5670 ].

Evidence - Topic 7058

Opinion evidence - Expert evidence - Particular matters - DNA evidence and other types of forensic analysis - [See Criminal Law - Topic 4415 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 20].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361, refd to. [para. 39].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 51].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, refd to. [para. 55].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 55].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 55].

R. v. Maciel (R.) (2007), 222 O.A.C. 174 (C.A.), refd to. [para. 57].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 44 O.R.(3d) 263 (C.A.), refd to. [para. 67].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 67].

R. v. Wristen (A.N.) (1999), 127 O.A.C. 314; 47 O.R.(3d) 66 (C.A.), refd to. [para. 68].

Counsel:

Catriona Verner and Carol Cahill, for the appellant;

Frank Au and Deborah Calderwood, for the respondent.

This appeal was heard on September 16, 2010, by Laskin, Sharpe and Epstein, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., released the following judgment for the court on January 31, 2011.