R. v. Kociuk (R.J.),

• Jurisdiction: Manitoba
• Judge: Hamilton, Chartier and Beard, JJ.A.
• Neutral Citation: 2011 MBCA 85
• Date: 10 March 2011
• Court: Court of Appeal (Manitoba)

R. v. Kociuk (R.J.) (2011), 270 Man.R.(2d) 170 (CA);

      524 W.A.C. 170

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. NO.003

Her Majesty The Queen (respondent) v. Robert Joseph Kociuk (accused/appellant)

(AR 10-30-07346; 2011 MBCA 85)

Indexed As: R. v. Kociuk (R.J.)

Manitoba Court of Appeal

Hamilton, Chartier and Beard, JJ.A.

October 21, 2011.

Summary:

The accused was charged with first degree murder, arising from the sexual assault and stabbing of a jogger in 1984. This "cold case" murder was revived 20 years later through DNA technology, unavailable in 1984. Prior to trial, the accused sought a judicial stay of proceedings under s. 24(1) of the Charter, alleging a violation of his s. 7 right to make full answer and defence and because evidence had been lost, destroyed or was otherwise unavailable without adequate explanation by police.

The Manitoba Court of Queen's Bench (i.e., the designated trial judge), in a decision reported at 241 Man.R.(2d) 155, dismissed the accused's application for a stay. The trial proceeded and the accused was convicted of first degree murder. The accused appealed, arguing that the verdict was unreasonable, a new trial was required because prejudicial comments made by the Crown during its closing address were not sufficiently cured by the trial judge's instructions to the jury and the accused was unable to make full answer and defence because of the missing evidence.

The Manitoba Court of Appeal, Beard, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with first degree murder, arising from the sexual assault and stabbing of a jogger in 1984 - This "cold case" murder was revived over 20 years later through DNA technology, unavailable in 1984 - Following arraignment, the accused moved for a judicial stay of proceedings (Charter, s. 24(1)), arguing that four items of missing evidence prevented him from making full answer and defence (Charter, s. 7) - The missing items were swabs taken from the victim, missing halfway house records from where the accused was living at the time of the murder, the alleged murder weapon (knife) and surveillance notes - The trial judge refused to grant a stay, but because of concerns over the cumulative prejudicial effect of all the lost evidence, instructed the jury to consider that issue - The accused was convicted - He appealed - The Manitoba Court of Appeal dismissed the appeal - The trial judge's decision was a reasonable exercise of judicial discretion - The court noted that the reasons for why the evidence was missing was adequately explained by police - There was no evidence of unacceptable negligence - The accused was unable to establish prejudice - See paragraphs 17 to 49.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Manitoba Court of Appeal stated that "The law with respect to a lost evidence motion is uncontroversial. Not every loss of relevant evidence will necessarily infringe on an accused's right to make full answer and defence. As recognized by the Supreme Court of Canada in [R. v. La], 'owing to the frailties of human nature, evidence will occasionally be lost' (at para. 20). When evidence is lost or missing, the Crown has an obligation to explain that loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process. Where the Crown has satisfactorily explained the loss, the onus shifts to the accused who, in order to be successful, 'must establish actual prejudice to his or her right to make full answer and defence' (at para. 25). Sopinka, J., for the majority, also explained in La that the principal consideration, in relation to whether the explanation of the Crown is satisfactory, 'is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence' ..." - See paragraph 21.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3133 ].

Criminal Law - Topic 1265.1

Murder - Jury charge - First degree murder - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused was convicted of first degree murder, arising from the sexual assault and stabbing of a jogger in 1984 - This "cold case" murder was revived over 20 years later through DNA technology, unavailable in 1984 - The accused appealed - At issue was whether the way in which the evidence was related to the elements of the offences of murder and sexual assault in the jury charge might not have fairly left the theory of the defence with the jury - That is, in explaining the elements of murder and sexual assault, whether the evidence of the two events was linked throughout the charge (i.e., often referring to the jurors considering "the circumstances of the murder/crime scene") without explaining that the evidence of one event might not be relevant to the other event - The Manitoba Court of Appeal rejected this ground of appeal - The court held that the theory of the defence was adequately explained to the jury - See paragraphs 67 to 88.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - The Manitoba Court of Appeal stated that "... when assessing the adequacy of the instructions to the jury, appellate courts will review the charge using a functional approach, as opposed to one that is formulaic, to ensure 'that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues' ... This assessment will also involve a consideration of the nature of the evidence before the trial court, the live issues raised, the position of the parties on those issues and the addresses of counsel ... Again, what matters most, in relation to any issue, is the general message that was in all likelihood left with the jury by the charge as a whole, not the 'particular words used, or the sequence followed' ... which remain firmly embedded within the trial judge's discretion" - See paragraph 72.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Intemperate or improper statements - The accused appealed his murder conviction, seeking a new trial because prejudice caused by Crown counsel's comments in the closing address was not cured by the trial judge's jury instructions - The Manitoba Court of Appeal rejected this ground of appeal - Here, the trial judge found the Crown's comments inappropriate and decided that immediate mid-trial instructions, as well as additional final instructions, were needed to remedy the situation - He also forcefully and directly explained the reason for his corrections - He was of the view that this remedial action was sufficient to cure any potential prejudice caused by the Crown's comments - Further, defence counsel neither moved for a mistrial nor complained as to the adequacy of the additional remedial instructions - There was no error in how the trial judge chose to deal with the situation - He exercised his discretion reasonably - His decision was certainly not wrong, let alone so clearly wrong, as to amount to an injustice - See paragraphs 59 to 66.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was convicted of first degree murder, arising from the sexual assault and stabbing of a jogger - The accused appealed, arguing that the verdict was unreasonable because another person (White) confessed to the murder, the accused was under police surveillance at the time and a witness testified that he saw the victim alive at a time when the accused was in custody on unrelated robbery charges - The Manitoba Court of Appeal rejected this argument - The matters raised by the accused were in conflict with evidence that the sperm found on the victim matched the accused's DNA and that White was not a contributor to the DNA found on the victim, and evidence that the accused was in the vicinity at the time of the murder - Further, before the Crown had closed its case, it had been established that it was the accused's sperm in the victim's body - The court commented that although the Crown's case cried out for an explanation, the accused did not testify - The verdict was one that a properly instructed jury acting judicially could reasonably have rendered - See paragraphs 50 to 58.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 5314

Evidence and witnesses - Inferences - From silence of accused or failure to explain - [See Criminal Law - Topic 4865 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 5].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 5].

R. v. Lamirande (S.C.) et al. (2002), 163 Man.R.(2d) 163; 269 W.A.C. 163; 2002 MBCA 41, refd to. [para. 6].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 6].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 7].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 7].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 17].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 17].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 17].

R. v. Duguay (H.) - see R. v. Taillefer (B.).

R. v. Larsen (A.) (2003), 176 B.C.A.C. 245; 290 W.A.C. 245; 2003 BCCA 18, refd to. [para. 24].

R. v. Glasgow (M.) (1996), 93 O.A.C. 67; 110 C.C.C.(3d) 57 (C.A.), refd to. [para. 44].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, leave to appeal denied (2010), 413 N.R. 389; 268 Man.R.(2d) 319; 520 W.A.C. 319 (S.C.C.), refd to. [para. 54].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, refd to. [para. 64].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 64].

R. v. Normand (D.G.) (2002), 166 Man.R.(2d) 179; 278 W.A.C. 179; 2002 MBCA 95, refd to. [para. 64].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 69].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 69].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [paras. 70, 101].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [paras. 71, 91].

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, refd to. [para. 72].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [paras. 72, 91].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [paras. 72, 91].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 86].

R. v. Coutu (K.S.) (2008), 231 Man.R.(2d) 275; 437 W.A.C. 275; 2008 MBCA 151, refd to. [para. 91].

R. v. Azoulay, [1952] 2 S.C.R. 495; 104 C.C.C. 97, refd to. [para. 92].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [para. 93].

R. v. Prince (C.L.) (2007), 212 Man.R.(2d) 204; 389 W.A.C. 204; 2007 MBCA 15, refd to. [para. 95].

Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (H.L.), refd to. [para. 97].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 98].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 99].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, refd to. [para. 99].

R. v. Parnell (1983), 1 O.A.C. 161; 9 C.C.C.(3d) 353 (C.A.), refd to. [para. 99].

R. v. Bernier (1993), 20 C.R.(4th) 353 (Que. C.A.), refd to. [para. 99].

R. v. Wobbes (Z.) (2008), 242 O.A.C. 7; 253 C.C.C.(3d) 561; 2008 ONCA 567, refd to. [para. 99].

Von Starck v. R., [2000] 1 W.L.R. 1270; [2000] UKPC 5, refd to. [para. 99].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 20 O.R.(3d) 156 (C.A.), refd to. [para. 99].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 103].

R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160 (C.A.), refd to. [para. 103].

R. v. Yumnu (I.) et al. (2010), 269 O.A.C. 48; 260 C.C.C.(3d) 421; 2010 ONCA 637, refd to. [para. 107].

R. v. U.C. (2009), 248 O.A.C. 341; 2009 ONCA 367, refd to. [para. 107].

Counsel:

L.J.W. Tailleur, for the appellant;

E.A. Thomson, for the respondent.

This appeal was heard on March 10, 2011, before Hamilton, Chartier and Beard, JJ.A., of the Manitoba Court of Appeal. On October 21, 2011, the judgment of the Court of Appeal was delivered and the following judgments were filed:

Chartier, J.A. (Hamilton, J.A., concurring) - see paragraphs 1 to 88;

Beard, J.A., dissenting - see paragraphs 89 to 161.