R. v. Olah (S.) and Ruston (J.D.), (1997) 100 O.A.C. 1 (CA)

• Judge: McMurtry, C.J.O., Finlayson and Osborne JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 23, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 1 (CA)

R. v. Olah (S.) (1997), 100 O.A.C. 1 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Steven Olah and James Dylan Ruston (appellants)

(C11810, C12860)

Indexed As: R. v. Olah (S.) and Ruston (J.D.)

Ontario Court of Appeal

McMurtry, C.J.O., Finlayson and Osborne JJ.A.

April 23, 1997.

Summary:

A court composed of a judge and jury found Olah and Ruston guilty of first degree murder. They were both sentenced to life imprisonment without eligibility for parole for 25 years. Olah and Ruston appealed their convictions. Ruston also appealed his sen­tence with respect to the 25 year parole ineligibility. Ruston, who was 17 when the offence was committed, invoked Criminal Code amendments which were pending at sentencing and subsequently proclaimed in force and wanted his parole ineligibility period reduced to 10 years.

The Ontario Court of Appeal dismissed the conviction appeals. The court allowed Rus­ton's sentence appeal to the extent of reduc­ing his parole ineligibility from 25 to 10 years.

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence, benefit of lesser punishment - Ruston was found guilty of first degree murder on December 18, 1991 - The offence was committed on October 18, 1989, when Ruston was 17 - On March 12, 1992, the trial judge sentenced Ruston to life imprisonment without eligi­bility for parole for 25 years - At that date, Criminal Code amendments that reduced parole ineligibility to between five and 10 years were pending - These amend­ments were proclaimed in force on May 15, 1992 - On December 1, 1995, new Criminal Code amendments fixed parole ineligibility at 10 years - Ruston appealed his sentence - He invoked s. 44(e) of the Interpretation Act (Can.) and s. 11(i) of the Charter and requested that his parole ineli­gibility period be reduced to 10 years - The Ontario Court of Appeal allowed the appeal - See paragraphs 53 to 66.

Criminal Law - Topic 105

General principles - Mental disorder - Insanity, automatism, etc. - Jury charge - Olah was found guilty of first degree murder - He appealed complaining of error in the jury charge respecting his insanity defence - Olah alleged: (1) the judge erred by indicating that wrongness under s. 16(1) of the Criminal Code meant "wrong according to the moral standards of society"; (2) the judge should have told the jury to find Olah not guilty by reason of insanity if a disease of the mind (including irresistible impulse) deprived him of the capacity for rational perception and thus rational choice about the rightness or wrongness of his acts, and (3) the judge erred in directing the jury that there was no evidence of "voices" directing his ac­tions - The Ontario Court of Appeal dis­missed the appeal - See paragraphs 67 to 104.

Criminal Law - Topic 1278

Murder - Murder during the commission of other offences - Jury charge - Olah was found guilty of first degree murder for having killed a gas bar customer by hitting him over the head with a fire extinguisher after a co-accused grabbed the customer and covered his head with a garbage bag - The trial judge had instructed the jury that they could convict Olah of first degree murder either on the basis of planning and deliberation or on the basis of murder while committing or attempting to commit forcible confinement or kidnapping - Olah appealed alleging that there was evidence supporting a conclusion of robbery but no evidence supporting a conclusion of forc­ible confinement or kidnapping - The Ontario Court of Appeal dismissed the appeal - See paragraphs 105 to 109.

Criminal Law - Topic 4362

Procedure - Charge or directions to jury - Directions regarding separation of evidence against several accused in a joint trial - [See Criminal Law - Topic 4482 ].

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - Olah and Ruston were charged with first degree murder - A joint trial was scheduled - Olah made statements that contained "damaging" references to Ruston that were not neces­sary to Olah's narrative - Ruston applied for severance - The trial judge first ordered that the "damaging" references be edited out - The judge then recognized that the now edited statements would cause prejudice to Ruston unless the jury were clearly and specifically cautioned about using them - The judge instructed the jury that they must consider the evidence as it related to Olah and Ruston separately and directed the jury that Olah's statements were not evidence against Ruston - Rus­ton's application was dismissed - The Ontario Court of Appeal affirmed the decision - See paragraphs 36 to 52.

Criminal Law - Topic 6222

Sentencing - Appeals - Variation of sen­tence - Jurisdiction - Ruston was found guilty of first degree murder on December 18, 1991 - The offence was committed on October 18, 1989, when Ruston was 17 - On March 12, 1992, the trial judge sen­tenced Ruston to life imprisonment without eligibility for parole for 25 years - At that date, Criminal Code amendments that reduced parole ineligibility to between five and 10 years were pending - These amend­ments were proclaimed in force on May 15, 1992 - On December 1, 1995, new Criminal Code amendments fixed parole ineligibility at 10 years - Ruston appealed his sentence requesting the lesser punish­ment that reduced his parole ineligi­bility to 10 years - The Ontario Court of Appeal allowed the appeal holding that s. 675(1) of the Criminal Code did not bar the court's jurisdiction to hear the appeal because the sentence was not "fixed by law" - See paragraphs 59 to 62.

Cases Noticed:

R. v. Torbiak and Gillis (1978), 40 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 39].

R. v. McLeod, Pinnock and Farquharson (1983), 66 N.R. 309; 6 C.C.C.(3d) 29 (Ont. C.A.), consd. [para. 39].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, consd. [para. 48].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161; 41 C.C.C.(3d) 523, consd. [para. 49].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97, refd to. [para. 50].

R. v. Court (G.R.) and Monaghan (P.D.) (1995), 81 O.A.C. 111; 99 C.C.C.(3d) 237 (C.A.), refd to. [para. 50].

R. v. Logan and Dunbar (1986), 14 O.A.C. 382; 51 C.R.(3d) 326 (C.A.), refd to. [para. 61].

R. v. Dunn (J.), [1995] 1 S.C.R. 226; 176 N.R. 375; 79 O.A.C. 161; 95 C.C.C.(3d) 289, consd. [para. 63].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, consd. [para. 85].

R. v. Schwartz, [1977] 1 S.C.R. 673; 8 N.R. 585; 29 C.C.C.(2d) 1, refd to. [para. 85].

R. v. Oommen (M.), [1994] 2 S.C.R. 507; 168 N.R. 200; 155 A.R. 190; 73 W.A.C. 190; 91 C.C.C.(3d) 8; [1994] 7 W.W.R. 49; 19 Alta. L.R.(3d) 305; 30 C.R.(4th) 195, consd. [para. 87].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394, refd to. [para. 100].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 100].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(i), sect. 24(1) [para. 59].

Criminal Code, R.S.C. 1985, c. C-46, sect. 16 [para. 67]; sect. 675(1) [para. 59]; sect. 742.1 [para. 56]; sect. 745.1 [para. 57].

Criminal Law Amendment Act (No. 2), 1976, S.C. 1974-75-76, c. 105, sect. 27(1) [para. 61].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 44(e) [para. 59].

Counsel:

Brian H. Greenspan, for the appellant, Ruston;

Irwin Koziebrocki, for the appellant, Olah;

Catherine Cooper and Jennifer Woollcombe, for the respondent.

This appeal was heard on October 3 and 4, 1996, by McMurtry, C.J.O., Finlayson and Osborne, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Osborne, J.A., and released on April 23, 1997.