Her Majesty the Queen v. Gulyas

[Indexed as: R. v. Gulyas]

Ontario Reports

Court of Appeal for Ontario,

MacPherson J.A. (in Chambers)

January 31, 2013

114 O.R. (3d) 216 | 2013 ONCA 68

Case Summary

Criminal law — Bail — Detention order — Review — Accused charged with second degree murder — Accused making recording admitting to his wife that he killed deceased — Murder of neighbour unexplained and appearing that accused strangling her unconscious and then slashing her throat and wrists — Bail judge refusing to grant bail on secondary ground under s. 515(10) of Code as there was substantial likelihood that accused would re-offend — Judge dismissing proposed plan of release on basis that proposed sureties were more interested in standing up for accused than in meeting their responsibilities — Judge having benefit of assessing witnesses as they testified — Application by accused for order for review of detention order by Court of Appeal dismissed — No realistic likelihood existing that panel of Court of Appeal would find that judge erred in denying bail — Criminal Code, R.S.C. 1985, c. C-46, s. 515(10).

The accused was charged with second degree murder. He was ordered detained on the secondary ground under s. 515(10) of the Criminal Code on the basis that there was a substantial likelihood that he would re-offend. The judge concluded that this was a very strong case, as the accused had admitted in a recorded message to his wife that he had killed the woman who lived downstairs. The victim had gone to the accused's residence to confront him about noise complaints he had made and she was killed in his residence. The murder was unexplained and extremely violent. The judge dismissed the proposed plan of release as being incapable of meeting the risk present in this case as the proposed sureties, who were family members, were more interested in standing up for the accused than in meeting their responsibilities. The accused applied under s. 680(1) of the Code for an order that a panel of the Court of Appeal review the detention order.

Held, the application should be dismissed. [page217]

The troubling and unexplained nature of the offence was sufficient to support the trial judge's inference that the accused would commit a criminal offence or interfere with the administration of justice should he be released. The trial judge concluded that the evidence of the accused's family members, who were the proposed sureties, was contradictory and that his mother minimized his past criminal offence. The judge had the benefit of observing their evidence and those findings were open to him. There was no realistic likelihood that a panel of the Court of Appeal would find that the judge erred in denying the accused bail.

Cases referred to

R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, 217 D.L.R. (4th) 536, 293 N.R. 239, J.E. 2002-1881, 165 O.A.C. 319, 167 C.C.C. (3d) 449, 4 C.R. (6th) 197, 97 C.R.R. (2d) 189, 54 W.C.B. (2d) 599; R. v. Rondeau, 1996 CanLII 6516 (QC CA), [1996] J.Q. no 1090, [1996] R.J.Q. 1155, J.E. 96-1107, 108 C.C.C. (3d) 474, 31 W.C.B. (2d) 437, EYB 1996-65236 (C.A.); R. v. S. (B.), [2007] O.J. No. 3046, 2007 ONCA 560, 255 C.C.C. (3d) 571, 49 C.R. (6th) 397; R. v. Stevenson, [2007] O.J. No. 1955, 2007 ONCA 378, 224 O.A.C. 129

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10) [as am.], 680(1) [as am.]

APPLICATION for an order for review of the detention order made by J.A.B. MacDonald J. of the Superior Court of Justice on August 30, 2012 by a panel of the Court of Appeal.

B. Fox, for applicant.

R. Gattrell, for responding party.

Introduction

1MACPHERSON J.A. (in Chambers): — This is an application brought under s. 680(1) of the Criminal Code, R.S.C. 1985, c. C-46 seeking an order directing that a panel of this court review the detention order made by Justice J. MacDonald of the Superior Court of Justice on August 30, 2012, denying the interim release of the applicant pending his trial on a charge of second degree murder. The chief justice of this court has designated me, the motion judge this week, as acting chief justice for the purpose of hearing this application.

2The test to apply on this application is whether there is a realistic likelihood that a panel of this court would find that the superior court judge erred in denying the applicant interim release: see R. v. Stevenson, [2007] O.J. No. 1955, 2007 ONCA 378 (C.A.), at para. 2; and R. v. S. (B.), [2009] O.J. No. 3046, 2007 ONCA 560, at para. 16.

3MacDonald J. carefully reviewed the record before him. He acknowledged that, with respect to a bail hearing taking place 23 days after the alleged murder, "the investigation is in its early days". However, he concluded that he was "satisfied that there is a relatively substantial body of reliable information from [page218] which it is possible now to reach a conclusion about the cogency and strength of the Crown's case".

4The judge concluded that "this is a very strong case", principally on the basis that

[t]here's no issue that the perpetrator in this case was the applicant. He called his wife and left a recording. That recording was given by the wife to the police and has been preserved indirectly through a videotape of her playing that recording. He spoke in Hungarian, but it has been translated and testified to by the wife here today. The translation which is in evidence and also her testimony today are that the accused admitted to her that he had killed the woman who lived downstairs.

5The judge refused to grant bail on the secondary ground in s. 515(10) of the Criminal Code: "where the detention is necessary for the protection or safety of the public . . . having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice".

Analysis

6The applicant contends that the judge erred in two respects.

First Ground: Substantial Likelihood to Re-offend

7First, the applicant submits that the judge erred in concluding that there was a "substantial likelihood" that the applicant would re-offend based exclusively on his characterization of the circumstances of the offence.

8I do not accept this submission. The circumstances of the offence are indeed very troubling. It appears that the victim went upstairs to confront the applicant about his complaints about too much noise coming from her apartment. The victim was killed in the applicant's apartment. As described by the judge:

The preliminary post-mortem results indicate that she was choked, her throat was then slashed and both wrists were cut across the underside, not across the back of the wrists. The observations of the apartment in the locale where the deceased's body was found indicate that there was very little spatter on the walls. There was pooling of blood on the floor. There were also no defensive wounds observed on the deceased's body. It therefore appears for present purposes [and I] infer, that the deceased was choked into submission and while either unconscious, semi-conscious or otherwise disabled, her throat and her wrists were cut. The cause of death is both strangulation and as I would describe it, exsanguination. That is bleeding to death as a result of the incised wounds.

9Against this backdrop, the judge reached this conclusion:

Detention in this case, I find, is necessary for the protection or safety of the public having regard to all of the circumstances including the substantial likelihood, given the extreme violence that was demonstrated in this case, that the accused person will if released from custody on any basis commit a criminal offence or interfere with the administration of justice.

10In reaching this conclusion, the judge relied on what Proulx J.A. said in R. v. Rondeau, 1996 CanLII 6516 (QC CA), [1996] J.Q. no 1090, 108 C.C.C. (3d) 474 (C.A.), at p. 480 C.C.C.: [page219] "The more a crime like the present one is unexplained and unexplainable, the more worrisome bail becomes for society." I observe that this passage was specifically affirmed by McLachlin C.J.C. in R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, at para. 25, albeit in the context of the tertiary ground.

11I can see no error in these findings or in the judge's legal analysis on this issue.

Second Ground: Proposed Plan of Release

12Second, the applicant contends that the judge erred in dismissing the proposed plan of release as being incapable "on any basis of meeting the risk" present in the case.

13I disagree. The judge reviewed in some detail the circumstances and testimony of the proposed sureties, namely, the applicant's father, mother, sister and wife. He found their evidence contradictory; he also said that the mother minimized or denied the events relating to her son's previous criminal conviction. The judge stated that he was not impressed by the evidence of the family members and concluded:

I'm not satisfied that these sureties are capable of dealing with the reality of this case because they're far, far more interested in standing up for the applicant than they are in meeting the responsibilities of suretyship.

14Having read the transcript of the bail hearing, and crediting that the judge had the advantage of seeing the family members testify, I can see no basis for a realistic challenge to his conclusion on this issue.

Conclusion

15For these reasons, I conclude that there is no realistic likelihood that a panel of this court would find that the judge erred in denying the applicant interim release. Accordingly, the application is dismissed.