R. v. Czibulka (L.), (2004) 190 O.A.C. 1 (CA)

• Judge: Rosenberg, Gillese and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 15, 2004
• Jurisdiction: Ontario
• Citations: (2004), 190 O.A.C. 1 (CA);2004 CanLII 22985 (ON CA);189 CCC (3d) 199;24 CR (6th) 152;[2004] CarswellOnt 3721;[2004] OJ No 3723 (QL);190 OAC 1

R. v. Czibulka (L.) (2004), 190 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. SE.030

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

(C36342)

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

Ontario Court of Appeal

Rosenberg, Gillese and Armstrong, JJ.A.

September 15, 2004.

Summary:

A court composed of a judge and jury found the accused guilty of second-degree murder in the death, by severe beating, of his wife. The accused appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The trial judge had erred in admitting hearsay evidence important to the Crown's case. The court, however, upheld the trial judge's directions respecting evidence of neighbours, the Crown's jury address and post-offence conduct.

Criminal Law - Topic 1265.2

Murder - Jury charge - Second degree murder - The presiding judge in a trial for second-degree murder directed the jury as follows respecting the intent for murder under s. 229(a)(ii) of the Criminal Code: "So far as bodily harm and recklessness are concerned, if a person is aware that the conduct is likely to bring about bodily harm and persists in that conduct, heedless and uncaring of the risks involved, then he is reckless. That's what reckless means in s. 229. Another way to put the meaning of reckless as set out in that section of the Criminal Code is found in the attitude of that person. If the person is aware that there's a danger their conduct could bring about death from bodily harm, but the person carries on despite that risk that is the conduct of one who sees a risk and takes the chance. That intention is sufficient for murder" - The Ontario Court of Appeal, ruled that the jury was misdirected - The trial judge erred by using the words "bodily harm" and "danger" - The court quashed the conviction and ordered a new trial - See paragraphs 62 to 70.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Three months before her death by severe beating, the deceased had written a letter to her cousin in which she referred to mistreatment at the hands of the accused, her husband - The trial judge admitted the letter as hearsay evidence - The accused was found guilty of second degree murder - The Ontario Court of Appeal set aside the conviction and ordered a new trial - The letter should not have been admitted - The trial judge made two errors in determining admissibility: (1) he relied upon the truthfulness of the contents of the letter to decide whether the statement was reliable; and (2) he relied upon the absence of evidence of the circumstances under which the letter was written to find that, accordingly, there was no evidence of a motive to fabricate - The court also ruled that the trial judge should not have admitted as reliable the deceased's complaint to her physician in which she showed him her bruises "for the record" and alleged that her husband had kicked her - Given the importance of the hearsay statements to the Crown's case, the conviction could not stand - See paragraphs 22 to 61.

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, consd. [para. 18].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, consd. [para. 18].

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; 147 C.C.C.(3d) 449, consd. to. [para. 18].

Youlden v. London Guarantee and Accident Co. (1912), 26 O.L.R. 75 (H.C.), affd. (1913), 28 O.L.R. 161 (C.A.), refd to. [para. 18].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 24].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 157 C.C.C.(3d) 129 (C.A.), consd. [para. 26].

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259, consd. [para. 27].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, consd. [para. 66].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, consd. [para. 67].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 34 C.R.(4th) 1; 93 C.C.C.(3d) 1, consd. [para. 68].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81; 87 C.C.C.(3d) 97, consd. [para. 69].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney, and Bryant, Alan, The Law of Evidence in Canada (1999), pp. 192 [paras. 43, 54, footnote 4].

Counsel:

Carol Cahill and Joseph Wilkinson, for the appellant;

Milan Rupic, for the respondent.

This appeal was heard on May 13, 2004, by Rosenberg, Gillese and Armstrong, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Rosenberg, J.A., and released on September 15, 2004.