R. v. Trochym (S.), (2004) 188 O.A.C. 330 (CA)

• Judge: Catzman, Weiler and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Monday July 05, 2004
• Jurisdiction: Ontario
• Citations: (2004), 188 O.A.C. 330 (CA)

R. v. Trochym (S.) (2004), 188 O.A.C. 330 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JL.001

Her Majesty The Queen (respondent) v. Stephen John Trochym (appellant)

Her Majesty The Queen (appellant) v. Stephen John Trochym (respondent)

(C23120; C23653)

Indexed As:R. v. Trochym (S.)

Ontario Court of Appeal

Catzman, Weiler and MacPherson, JJ.A.

July 5, 2004.

Summary:

A jury convicted the accused of second degree murder. He was sentenced to the mandatory term of life imprisonment. The trial judge set the period of parole ineligibility at 10 years. The accused appealed his conviction on several grounds relating to the admissibility of evidence, the conduct of Crown counsel, and the trial judge's charge to the jury. The Crown appealed the sentence, seeking an increase in the period of parole ineligibility to 12-15 years.

The Ontario Court of Appeal dismissed both appeals.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The Crown alleged that the accused murdered his ex-girlfriend shortly after she broke up with him - The deceased's neighbour testified that she heard someone banging on the deceased's apartment door on the night she was murdered - After a few minutes, the neighbour heard the deceased open the door to admit the person - The trial judge admitted the evidence of Oliphant, a former girlfriend of the accused, and a friend who was staying at her apartment - They testified that the accused came to Oliphant's apartment a day after she had terminated their relationship and caused a ruckus while demanding entry - The Ontario Court of Appeal held that the similar fact evidence was admissible and Crown counsel's transgressions concerning its use were corrected by the trial judge's excellent charge on the issue - See paragraphs 43 to 49.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - The accused's ex-girlfriend was killed shortly after she broke up with him - The accused was convicted of her second degree murder - Throughout the trial, the Crown developed the position that the accused's conduct in the days following the deceased's murder was an important indicator of his guilt - The Ontario Court of Appeal held that the trial judge did not err in admitting evidence of the accused's post-offence conduct - Admissibility was not a live issue at trial and the post-offence evidence was the type of evidence that should be left to a jury - Moreover, the trial judge's charge to the jury on this issue was, with one exception that benefitted the accused, sound - See paragraphs 14 to 35.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The Ontario Court of Appeal stated that "as a general proposition, the question of whether the post-offence conduct of an accused is related to the offence is one for the trier of fact ... Of course, the 'general rule' ... is just that: a general rule, not an absolute rule. There are exceptions. One exception relates to evidence that has no probative value at all ... A second exception arises when the prejudicial effect of the evidence outweighs its probative value ... An example of the second exception has developed in the case law recently ... evidence about a person's demeanour when informed or accused of the murder of a victim should be admitted 'with caution'" - See paragraphs 17 and 19.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4392].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal stated that "A trial judge's decision concerning the admission of similar fact evidence is entitled to substantial deference" - See paragraph 46.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See Criminal Law - Topic 4352.1].

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - [See Criminal Law - Topic 4352.1].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper questions - What constitute - The accused was convicted of second degree murder in the death of his ex-girlfriend - On the accused's cross-examination, Crown counsel asked him to compile a list of witnesses with whom he disagreed - As the cross-examination progressed, Crown counsel would put forth testimony of a witness that contradicted the accused's evidence - If the accused agreed that there was a contradiction, the witness's name was added to the list - By the end of the cross-examination, there were 28 names on the list - On appeal, the accused submitted that this was an unfair tactic - The Ontario Court of Appeal rejected the submission - At trial, defence counsel did not object to the list, so long as it was not made an exhibit (it was not) - Moreover, Crown counsel never crossed the line and asked the accused if he thought the witnesses who contradicted him were lying or asked the accused to explain why they might be lying - See paragraphs 62 and 63.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - A jury convicted the accused of second degree murder in the death of his ex-girlfriend - Her throat had been cut, her jugular severed and she had numerous other knife wounds - The trial judge sentenced the accused to the mandatory term of life imprisonment and fixed the period of parole ineligibility at the statutory minimum of 10 years - The Ontario Court of Appeal declined to increase the period of parole ineligibility - The sentence imposed by the trial judge was entitled to substantial deference - The trial judge gave detailed reasons for sentence in which he carefully considered all of the relevant factors related to the offence and the offender - Further, six members of the jury made no recommendation concerning parole ineligibility, while six recommended a 10 year period - See paragraphs 71 to 77.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - A jury found the accused guilty of second degree murder in the death of his ex-girlfriend - Her throat had been cut, her jugular severed and she had numerous other knife wounds - The trial judge sentenced the accused to the mandatory term of life imprisonment and fixed the period of parole ineligibility at the statutory minimum of 10 years - The Ontario Court of Appeal declined to increase the period of parole ineligibility - While the trial judge did not refer specifically to the domestic context of the murder, the trial took place in 1995 and cases relied on by the Crown which attached strong weight to this factor were decided after 1995 - Moreover, s. 718.2(a)(ii) of the Criminal Code, which specifically identified spousal abuse as an aggravating factor for sentencing purposes, did not come into force until 1996 - In any event, it was clear from the trial judge's reasons that he regarded this as a terrible murder - See paragraph 76.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See second Criminal Law - Topic 5670].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See both Criminal Law - Topic 5670].

Evidence - Topic 7591

Competency of evidence - Hypnotically induced evidence - The accused was convicted of second degree murder - In her initial interview, a Crown witness had been unclear about the exact date of certain events - She accepted a suggestion by police that she undergo hypnosis - After hypnosis, she was able to fix the date of the events - The witness testified in accordance with her hypnotically enhanced evidence - The Ontario Court of Appeal held that "In the record before the trial judge, and on the basis of the case law available in 1995, there was no basis for a rule of absolute exclusion of testimony based on hypnotically enhanced memory. Nothing in the record before us, or in developments in the case law since then, would support such a rule. Indeed, such a rule would run contrary to a general theme of Canadian evidence law - namely, a reluctance to deprive the finders of fact of relevant information." - See paragraphs 50 to 57.

Evidence - Topic 7591

Competency of evidence - Hypnotically induced evidence - The accused was charged with second degree murder - A Crown witness had evidence that had been hypnotically enhanced - After the trial judge declined to exclude the evidence, counsel agreed that so long as defence counsel did not cross-examine the witness about her pre-hypnotic statements, the jury would not hear that she had been hypnotized - Defence counsel feared that such knowledge might increase the witness's credibility in the jury's eyes - The Ontario Court of Appeal held that the trial judge did not err in accepting this agreement - The genesis of the agreement was a tactical decision by defence counsel and there was no allegation of incompetence or ineffective representation - See paragraph 57.

Cases Noticed:

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 14].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 14].

R. v. S.C.B. (1997), 104 O.A.C. 81; 119 C.C.C.(3d) 530 (C.A.), refd to. [para. 16].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 19].

R. v. Levert (G.) (2001), 150 O.A.C. 208; 159 C.C.C.(3d) 71 (C.A.), refd to. [para. 19].

R. v. Baltrusaitis (V.C.) (2002), 155 O.A.C. 249; 162 C.C.C.(3d) 539 (C.A.), refd to. [para. 19].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 179 C.C.C.(3d) 244 (C.A.), refd to. [para. 19].

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. 33].

R. v. White (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), refd to. [para. 33].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321, refd to. [para. 46].

R. v. Harvey (A.W.) (2001), 152 O.A.C. 162; 160 C.C.C.(3d) 52 (C.A.), refd to. [para. 46].

R. v. R.N., [2003] O.A.C. Uned. 6 (C.A.), refd to. [para. 46].

R. v. Multani (M.S.), [2004] O.A.C. Uned. 204 (C.A.), refd to. [para. 46].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481, refd to. [para. 47].

R. v. Clark (1984), 55 A.R. 193; 13 C.C.C. 117 (Q.B.), refd to. [para. 52].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241; 85 C.C.C.(3d) 289, refd to. [para. 55].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111, refd to. [para. 56].

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 63].

R. v. A.J.R. - see R. v. R.

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 64].

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, refd to. [para. 64].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 158 C.C.C.(3d) 129, refd to. [para. 66].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119, refd to. [para. 66].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 66].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 66].

R. v. Feeley (R.W.) (2003), 301 N.R. 115; 170 O.A.C. 97; 171 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 67].

R. v. Tavenor (J.E.) (2001), 140 O.A.C. 78 (C.A.), refd to. [para. 67].

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321; 42 C.R.(5th) 220 (C.A.), refd to. [para. 67].

R. v. Phillips (C.) et al. (2001), 139 O.A.C. 282; 154 C.C.C.(3d) 345 (C.A.), refd to. [para. 67].

R. v. Varga (R.L.) (2001), 150 O.A.C. 358; 159 C.C.C.(3d) 502 (C.A.), refd to. [para. 67].

R. v. Van Nguyen (L.) (2002), 154 O.A.C. 108; 161 C.C.C.(3d) 433 (C.A.), refd to. [para. 67].

R. v. Rochon (J.) (2003), 171 O.A.C. 64; 173 C.C.C.(3d) 321 (C.A.), refd to. [para. 67].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 72].

R. v. Wristen (A.N.) (1999), 127 O.A.C. 314; 141 C.C.C.(3d) 1 (C.A.), refd to. [para. 72].

R. v. McLeod (J.E.) (2003), 177 O.A.C. 385 (C.A.), refd to. [para. 72].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 74].

Authors and Works Noticed:

Wigmore, Evidence in Trials at Common Law (1979), 2 Chad. Rev. 117, generally [para. 18].

Counsel:

Kenneth Campbell and Howard Leibovich, for Her Majesty The Queen;

James Lockyer and Joanne McLean, for Stephen Trochym.

These appeals were heard on June 15, 16 and 17, 2004, by Catzman, Weiler and MacPherson, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., released the following decision for the court on July 5, 2004.