CITATION: R. v. Czibulka, 2011 ONCA 82
DATE: 20110131
DOCKET: C48343
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Lajos Czibulka
Appellant
Catriona Verner and Carol Cahill, for the appellant
Frank Au and Deborah Calderwood, for the respondent
Heard: September 16, 2010
On appeal from the conviction entered on October 27, 2006 and the sentence imposed on November 16, 2006 by Justice E.F. Then of the Superior Court of Justice, sitting with a jury.
Laskin J.A.:
A. OVERVIEW
[1] On the morning of Monday, June 8, 1998, the appellant, Lajos Czibulka, telephoned 9-1-1 claiming that his wife, Maria, was having trouble breathing. When the paramedics arrived at the couple’s apartment, they found Maria dead on the living room floor. She was faced down on the carpet, on her hands and knees, wearing only a black bra and underwear.
[2] Maria had been brutally beaten to death. Her eyes were swollen shut and bruises covered her whole body. Her ribs were fractured in 25 places. Her diaphragm was lacerated and her breast bone was broken. Her husband alone was with her. At the time of her death, she had been married to him for 35 years. He was 57 years old when his wife died.
[3] Ten months after Maria’s death, the appellant was charged with her murder. He was tried and convicted of second degree murder before Campbell J. and a jury, but on appeal, this court overturned the conviction and ordered a new trial. The retrial before Then J. and a jury is the subject of this appeal.
[4] At the second trial, the main issue was identity. The Crown relied on exclusive opportunity, motive, forensic evidence, post-offence conduct and inculpatory statements the appellant had made to paramedics and the police, to establish that he had killed his wife. The defence claimed that Maria was a prostitute, that one of her customers beat her and then brought her back to the apartment while she was still alive, and that she later died there. The appellant did not testify.
[5] If the appellant was the killer, a secondary issue at trial was whether he was guilty of murder or manslaughter. To prove murder the Crown relied on the severity and persistence of the beatings. The defence relied on evidence of the appellant’s intoxication and mental state, and on his apparent disbelief that he had killed his wife – throughout the time the paramedics were in the apartment, the appellant repeatedly said “she no dead.”
[6] The jury found the appellant guilty of second degree murder. The trial judge imposed a period of parole ineligibility of 15 years. The appellant appeals both his conviction and his sentence.
[7] On his conviction appeal, the appellant argues three grounds of appeal. First, he submits that the trial judge erred in admitting one of his statements – statement number four – to the police. This submission has two branches: one, the trial judge erred in finding that the appellant was not detained when he gave the statement; two, the trial judge ought to have found the statement inadmissible because it was incoherent.
[8] Second, the appellant submits that the trial judge erred by failing to correct comments made by the Crown, in closing, about exclusive opportunity and DNA evidence.
[9] Third, the appellant submits that the trial judge erred by failing to tell the jury that the appellant’s post-offence conduct could not be used to determine whether he was guilty of murder or manslaughter, and by failing to relate the evidence to the mens rea for murder.
[10] On his sentence appeal, the appellant submits that the trial judge erred in principle by holding that the appropriate range of parole ineligibility was 12 to 17 years, instead of 12 to 15 years. He asks that his period of parole ineligibility be reduced to 12 or 13 years.
B. EVIDENCE SUPPORTING THE CROWN’S CASE
[11] As I have said, to prove that the appellant killed his wife, the Crown relied on exclusive opportunity, motive, forensic evidence, post-offence conduct and the appellant’s statements. To put the appellant’s submissions in context, I will briefly review this evidence.
(a) Evidence of exclusive opportunity
• The paramedics arrived to discover Maria’s body on a Monday morning. Only the appellant was there.
• The appellant had been on vacation from work the previous week. Over the weekend he called his employer and left a message that he would not be in to work on Monday because his wife was ill. No evidence was led that anyone else was in the apartment over the week leading up to the discovery of Maria’s body.
• On Saturday night, a neighbour heard bumping and thumping sounds, and Maria moaning. The neighbour attributed these sounds to the couple’s having sex. However, the neighbour heard no further sounds from the apartment until Monday morning. The Crown relied on this evidence to establish that the fatal beating took place Saturday night. Clumps of Maria’s torn hair found in the apartment showed that she had been beaten there.
• There was no evidence of forced entry, and testing did not disclose any foreign finger or palm prints.
(b) Motive
• The appellant admitted that he and Maria had fought over her massage business.
(c) Forensic evidence
• The appellant’s DNA was found under Maria’s fingernails. No one else’s was. The appellant had scratches on his hand, and Maria had bruises on her knuckles.
• Torn clumps of hair removed from Maria’s head were found in the living room, together with a beer bottle that had on it the appellant’s finger print upside down.
(d) Post-offence conduct
• In his 9-1-1 call the appellant said that his wife had been drugged. No signs of drug use were found in the apartment and no indication of drug use was reported by the toxicologist, pathologist or Maria’s doctor. On the other hand, the appellant did not tell the 9-1-1 operator about his wife’s extensive bruising and injuries.
• After the paramedics arrived at the apartment, the appellant appeared to be uncooperative and evasive. He refused to give them any information that might assist them.
• Also, after the paramedics and police arrived at the apartment, the appellant seemed anxious to leave. He kept moving toward the door saying he needed to go to work, even though he had already called in to say he would not be there that day.
(e) Statements
• When asked how Maria got the bruises, the appellant said they had had a fight over her giving “sexy massages.”
• The appellant demonstrated for an officer how Maria had been on her knees, begging for his forgiveness for all that she had done. The position the appellant assumed for the demonstration matched the position Maria had been found in.
• The appellant admitted that he may have slapped Maria a few times and kicked her “lightly” in the buttocks.
C. ANALYSIS
(1) Did the trial judge err in admitting statement number four?
[12] The appellant made six statements. After a voir dire, at which the appellant did not testify, the trial judge found the first four statements to be admissible and statements five and six to be inadmissible. Only the admissibility of statement four is in question on this appeal.
[13] Statement one was the 9-1-1 call. Statements two and three were made in the appellant’s apartment. Statements four, five and six were made at the police station. The trial judge ruled that statements five and six were inadmissible because the appellant’s answers were incomprehensible and thus their prejudicial effect outweighed their probative value. However, the trial judge found no impediment to the admissibility of statement four, which was made to two police officers.
[14] Although statement four was made at the police station, it was not video recorded. However, one of the officers testified that she took it down verbatim. Her notes read as follows:
Q: Can you tell us what happened?
A: I went sleep early. I have to work early. Wake up 4:30, go to work.
Q: Where was Maria when you went to sleep?
A: I don’t know. Always going out and in, out and in. She not working. Always going out.
Q: What happened?
A: I don’t know. I going to sleep.
Q: Where did Maria sleep last night?
A: I don’t know where she was. She was crying and said, “I’m sorry, everything.” I called ambulance. I was thinking, I said, “Wake up. Wake up.” I was think she always drink and drunk and doing things. Come out some white from mouth. She saying, “Forgive me. Forgive me.” I called ambulance. I went downstairs and open door for ambulance people.
Q: What time do you get up this morning?
A: 4:30. I see my wife, she was sit beside me, she was crying. I put her living room. I want to go back sleep. She was so badly drink and drug and needle here and there. I go back sleep. I wake up. She was down. “Forgive me.” [The officer’s notes indicated that this was what the appellant said his wife had said to him. He then demonstrated that Maria got down on her knees and prayed to him to “forgive” her.]
Q: Did you have an argument with your wife last night?
A: Well [pause] no.
Q: Did you hit her?
A: Well [pause] no, not really.
Q: What do you mean ‘not really’?
A: [Pause] Always people come here, man, woman, I don’t know. [at that point the appellant began “talking in circles about having to go to work, was sleeping, etc” and the officer stopped taking notes]
[15] The trial judge gave brief reasons for holding statement four admissible. He said:
There was no detention within s. 10(b) of the Charter either in the apartment or at 54 Division on the part of Detectives King, Kelly or Thomas nor was there any investigative unfairness by Detectives Kelly and Thomas to render the statements of the accused to them involuntary. I am satisfied on a balance of probabilities that the accused was not detained within s. 10(b) of the Charter and beyond a reasonable doubt that the statements to Detectives Kelly and Thomas were voluntary. The accused’s statements to Detectives Kelly and Thomas are admissible.
[16] At the beginning of his brief reasons for all the statements, the trial judge said that his ruling was “by way of conclusions in summary form.” He added, “I reserve the right to render full reasons if necessary at a later date.” No further reasons were delivered.
[17] The appellant challenges the trial judge’s ruling on statement four on two grounds: first, the trial judge erred in finding that the appellant was not detained when he gave the statement; and second, the statement should have been excluded because, like statements five and six, which were excluded, it was incoherent.
(a) Was the appellant detained when he gave statement number four?
[18] Under s. 10(b) of the Charter, a person who is detained has the right to counsel and to be informed of that right. The appellant was not informed of his right to counsel before he gave statement number four. Therefore, if he was detained when he gave the statement, his right to counsel under s. 10(b) was breached.
[19] The trial judge, however, found that “there was no detention.” The appellant submits that he erred in so finding. If he did err, and s. 10(b) was breached, the appellant says that his statement should be excluded under s. 24(2) of the Charter. The Crown does not challenge the appellant’s position on s. 24(2). The focus of this ground of appeal, therefore, is on the question whether the appellant was detained.
[20] Detention under ss. 9 and 10 of the Charter means that an individual’s liberty interest has been suspended “by a significant physical or psychological restraint”: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 44. The appellant was not physically restrained, but argues that he was psychologically restrained. A psychological detention may arise when “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”: see Grant at para. 44. This is an objective test and thus the appellant’s failure to testify is not fatal to his claim that he was detained. In Grant itself, the accused did not testify, but both this court and the Supreme Court of Canada held that he had been detained contrary to s. 9 of the Charter.
[21] In Grant, at para. 44, the Supreme Court of Canada set out a list of factors that may assist courts in determining whether an individual has been psychologically detained:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[22] This list is not intended to be exhaustive, but as a guide in cases where it is unclear whether there has been a psychological detention. In putting forward his argument, the appellant relies on this list, as he is entitled to do, even though Grant was decided in the Supreme Court of Canada after the trial judge’s ruling in this case.
[23] Looking at the factors set out in Grant, I consider this to be a close case. Ordinarily a trial judge’s finding on whether an accused has been psychologically detained deserves “appropriate deference”: see Grant at para. 45. However, this deference is attenuated where, as in this case, the finding is conclusory and unsupported by any explanation.
[24] And, the appellant puts forward a good case, on all the Grant factors, that he was psychologically detained. Even at his apartment, though he wanted to leave, one of the paramedics cautioned the appellant to stay because the police wanted to speak to him. The officers then suggested that he come to the police station. He was put in an interview room and was never told that he was free to leave. He was kept there for a fairly long time – over an hour and a half. The interview began at 6:23 a.m. and he gave statement number four at 8:00 a.m.
[25] Although the officer’s questions initially could be characterized as general inquiries, they soon became quite pointed. “Did you have an argument with your wife last night?”, and “did you hit her?”, showed a “focused investigation.”
[26] The appellant himself was unsophisticated and of limited intellect, had difficulty with the English language, and appeared emotionally distraught.
[27] These considerations taken together could lead one to conclude that a reasonable person in the appellant’s circumstances would believe that he had no choice but to comply with the officers’ requests.
[28] On the other hand, as the Crown fairly points out, several considerations support the trial judge’s finding. The officer who asked the appellant to come to the station apparently did so at least partly out of sensitivity to the appellant’s situation. He testified that he thought the appellant would be more comfortable at the police station because the coroner was coming to the apartment to take Maria’s body to the morgue.
[29] Moreover, though a few of the officer’s questions were pointed, “focused suspicion, in and of itself, does not turn the encounter into a detention”: see Grant at para. 41. When the appellant gave statement four, the police had just begun their investigation. A few hours later, before the appellant gave statement five, the police explicitly told him that he was “free to go.” Yet he chose to stay. And the defence conceded that the appellant was not detained when he gave statements five and six.
[30] I do not think it is necessary to resolve whether the trial judge erred in finding that the appellant was detained. Even if the trial judge did err, the error was harmless, for two reasons.
[31] First, the jury heard other admissible evidence that duplicated the inculpatory aspects of statement number four. Two examples show this. In statement four, the appellant admitted that he had an argument with his wife and implied that he may have hit her. Sixteen days after he gave this statement, the appellant called one of the homicide officers and told him that “he may have slapped Maria a few times and lightly kicked her in the buttock area.”
[32] In statement four, toward the end, as the officer’s questions became pointed, the appellant appeared to be evasive. Yet statement four was not needed to show the appellant’s evasiveness. Both paramedics testified that the appellant was uncooperative and evasive at the apartment.
[33] Second, any error is harmless because the Crown had an overwhelming case. In the light of the evidence of exclusive opportunity, the appellant’s post-offence conduct, his statements to the paramedics and police that are unquestionably admissible, and the forensic evidence that I have outlined earlier, a new trial would inevitably have the same result. I would not give effect to this ground of appeal.
(b) Should statement number four have been excluded because it was incoherent?
[34] As I have said, the trial judge excluded statements five and six, which were video recorded. He ruled that because the appellant’s answers were incomprehensible, the prejudicial effect of each statement outweighed its probative value. He said:
Because of the incomprehensible nature of the responses of the accused on key matters in both statements, I am not satisfied beyond a reasonable doubt in the absence of an interpreter that the statements given to the police by the accused can properly be characterized as his statements. Moreover, because of the incomprehensible answers of the accused on key issues the prejudicial effect of his answers outweighs their probative value as there is a danger that the jury may be mislead not only as to the meaning of the answers of the accused but as to whether the accused is deliberately seeking to evade the questions of the police. Statements Nos. 5 and 6 are inadmissible.
[35] However, the trial judge ruled that statement four, made just before statements five and six, and recorded only on paper, was admissible. The appellant submits that statement four was as incoherent as statements five and six and should have been excluded as well.
[36] In making this submission, the appellant challenges the adequacy of the trial judge’s reasons on his voir dire ruling. He says that the trial judge had an obligation to explain why his ruling on statements five and six did not apply to his ruling on statement four, and his bald conclusion failed to fulfill that duty. Had the trial judge addressed why his rulings differed, the appellant says, his ruling on statement four might have been different.
[37] The Crown responds with a preliminary objection: this court should not even consider the alleged inadequacy of the trial judge’s reasons because the appellant never requested “full reasons,” although the trial judge had reserved the right to deliver them “if necessary.” The Crown argues that the appellant had an onus to ask for further reasons and his failure to do so “ought to be an absolute bar to challenging the ruling.”
[38] Respectfully, I cannot see any merit in the Crown’s argument. The obligation to deliver adequate reasons rests on the trial judge and the trial judge alone. Neither the defence nor the Crown – whether appellant or respondent – has any onus to request a trial judge to deliver better reasons.
[39] That said, trial judges are entitled in appropriate instances to deliver summary rulings with further reasons to follow. They may need to do so to keep a long and complicated trial, especially a jury trial, moving forward without undue delay. Undoubtedly that is why the experienced trial judge in the case before us delivered a summary ruling on the voir dire. As the Supreme Court of Canada said in R. v. Tesky, 2007 SCC 25, [2007] 2 S.C.R. 267 at para. 17: “it is often necessary in the interest of achieving trial efficiency for a trial judge to announce promptly the disposition on an evidentiary ruling or on a Charter motion, with reasons to follow on a later date.”
[40] However, if a trial judge does not later deliver “full reasons” for a ruling and the ruling is appealed, then an appellate court must assess whatever reasons have been delivered. A party is not foreclosed from challenging the adequacy of reasons because that party failed to ask the trial judge to deliver further reasons.
[41] What then of the appellant’s argument that statement four is incoherent? On appeal, the important function of reasons is to permit meaningful appellate review. The conclusory nature of the trial judge’s ruling does not preclude meaningful review. The statement is short and was recorded verbatim by one of the officers. We are able to discern why the trial judge admitted it. For convenience, I reproduce statement four here:
Q: Can you tell us what happened?
A: I went sleep early. I have to work early. Wake up 4:30, go to work.
Q: Where was Maria when you went to sleep?
A: I don’t know. Always going out and in, out and in. She not working. Always going out.
Q: What happened?
A: I don’t know. I going to sleep.
Q: Where did Maria sleep last night?
A: I don’t know where she was. She was crying and said, “I’m sorry, everything.” I called ambulance. I was thinking, I said, “Wake up. Wake up.” I was think she always drink and drunk and doing things. Come out some white from mouth. She saying, “Forgive me. Forgive me.” I called ambulance. I went downstairs and open door for ambulance people.
Q: What time do you get up this morning?
A: 4:30. I see my wife, she was sit beside me, she was crying. I put her living room. I want to go back sleep. She was so badly drink and drug and needle here and there. I go back sleep. I wake up. She was down. “Forgive me.” [The officer’s notes indicated that this was what the appellant said his wife had said to him. He then demonstrated that Maria got down on her knees and prayed to him to “forgive” her.]
Q: Did you have an argument with your wife last night?
A: Well [pause] no.
Q: Did you hit her?
A: Well [pause] no, not really.
Q: What do you mean ‘not really’?
A: [Pause] Always people come here, man, woman, I don’t know. [at that point the appellant began “talking in circles about having to go to work, was sleeping, etc” and the officer stopped taking notes]
[42] Up until the last answer, the appellant’s responses are quite coherent and comprehensible. Only the last answer causes any concern, and at that point the officer stopped taking notes. The Crown may have tried to make something of the last answer – arguing that the appellant is showing evasion to a pointed question – but that is fair advocacy. Overall, I see nothing incoherent about statement four. The trial judge was correct not to rule it inadmissible because it was incoherent.
[43] However, even if the statement should have been ruled inadmissible, for the reasons given on the first branch of this ground of appeal, the error was harmless. If necessary I would apply the curative proviso and hold that admitting the statement caused no substantial wrong or miscarriage of justice.
[44] I would not give effect to this ground of appeal.
(2) Did the trial judge err by failing to correct comments made by the Crown in closing?
[45] The appellant contends that the trial judge erred by failing to correct two assertions made by Crown counsel during her closing argument: one concerning the DNA under Maria’s fingernails; the other concerning the appellant’s exclusive opportunity to commit the offence. At trial, no objection was taken with either assertion. I do not accept the appellant’s contention on appeal.
(a) DNA under Maria’s fingernails
[46] The Crown called Pam Newall from the Center of Forensic Sciences to give expert evidence on DNA. Ms. Newall testified that the appellant’s DNA under Maria’s fingernails had probative value. The appellant accepts this to be so.
[47] However, the Crown suggested to the jury that the absence of anyone else’s DNA under Maria’s fingernails was also significant:
As for the finger – the DNA under the fingernails, what was found under Maria’s nails is equally as significant as the DNA that was not found. If Maria was attacked by anyone other than Mr. Czibulka, why was only his DNA found under her nails? Surely in the course of such a beating, the circumstances of close, forceful contact that Ms. Newall described would have occurred. If the circumstances were really as the defence suggests, there would have been someone other than Mr. Czibulka’s DNA under Maria’s fingernails. There was no other DNA under her nails because the only person that beat Maria was Mr. Czibulka himself.
The appellant says that this suggestion misstated Ms. Newall’s evidence and should have been corrected by the trial judge.
[48] I agree with the Crown on appeal that the trial Crown’s suggestion was fair advocacy, and not a misstatement of the evidence. In Ms. Newall’s evidence – which the trial judge, in his charge, recited to the jury – she referred to studies showing that DNA was transferred by severely scratching another person. The appellant had scratch marks on him. If the jury accepted that Maria may have used her hands to try to fend off her attacker’s brutal beating, one might fairly expect that the attacker’s DNA would be under her fingernails. The Crown simply asked the jury to draw this inference. No correction from the trial judge was needed.
(b) Exclusive opportunity
[49] The appellant also complains that in seeking to show he had the exclusive opportunity to commit the crime, the Crown went too far by telling the jury that they could rely on the lack of evidence anyone else was present. The appellant points to the following passages from the Crown’s closing:
There is absolutely no evidence before you, ladies and gentlemen, to suggest that anyone other than Mr. Czibulka was with Mrs. Czibulka the weekend of her death.
Where is the intervening assault? Where is the intervening assailant?
Absolutely no evidence before you that anyone other than Mr. Czibulka was with Mrs. Czibulka the weekend that she was murdered.
[50] The appellant submits that the trial judge should have instructed the jury they could not rely on a lack of evidence anyone else was present to find exclusive opportunity; instead they had to rely on positive evidence. I do not agree with this submission. Absence of evidence that anyone else was present at the relevant time may be used to establish exclusive opportunity.
[51] McIntyre J., writing for the court, made this point in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 at pp. 189-90. In that case, the accused, Mr. Yebes, was convicted of the second degree murder of his two adopted sons. In upholding the conviction, McIntyre J. noted that there was no evidence connecting Yebes to the death of the boys. He therefore considered whether at the relevant time Yebes had the exclusive opportunity to commit the murders. He held there was evidence on which a properly instruct jury could find exclusive opportunity. In so finding, the jury could take into account that “there is no evidence of the presence of any other person, save the two boys, in the townhouse that evening.”
[52] I would not give effect to this ground of appeal.
(3) Did the trial judge err by failing to tell the jury that the appellant’s post-offence conduct could not be used to determine whether he was guilty of murder or manslaughter, and by failing to relate the evidence to the mens rea for murder?
[53] Whether the appellant was guilty of murder or manslaughter was a live issue at trial. The Crown relied mainly on the severity and persistence of the beatings to show an intent to kill. The defence maintained that the appellant’s repeated utterances to the paramedics “she no dead”, coupled with his intoxication and emotional state amounted to compelling evidence that he lacked the requisite intent for murder.
[54] To prove that the appellant killed his wife, the Crown had led evidence of the appellant’s post-offence conduct. That evidence consisted mainly of his misleading call to the 9-1-1 operator, his apparent unwillingness to cooperate with the paramedics and his desire to leave the apartment on the pretext that he had to go to work.
[55] The principle that ordinarily post-offence conduct may point to an accused’s culpability but not to the level of that culpability is now well established. See, for example, R. v. Marinaro, 1996 CanLII 222 (SCC), [1996] 1 S.C.R. 462, adopting Dubin C.J.O’s dissent at (1994), 1994 CanLII 1470 (ON CA), 76 O.A.C. 44 (C.A.); R. v. Wiltse (1994), 1994 CanLII 822 (ON CA), 19 O.R. (3d) 379 (C.A.); R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.). The appellant says that the trial judge was required to so instruct the jury. He relies on cases such as Wiltse, where Doherty J.A. wrote at pp. 384-85:
In so far as Yarema’s acts after the homicide demonstrated a consciousness of guilt, they could do no more than point to his culpability in the homicide. They could not help in determining the level of his culpability, that is, whether he was guilty of manslaughter, second degree murder or first degree murder. That is not to say that in some cases the conduct of an accused after the offence cannot have some relevance to his or her level of culpability, apart entirely from its evidentiary value as demonstrating a consciousness of guilt. No such alternate evidentiary use was put forward here.
In my view, the jury should have been instructed as to the limited use of evidence of consciousness of guilt in determining Yarema’s culpability in the homicide. The jury also should have been told that the evidence had no probative value unless the jury was satisfied that the consciousness of guilt reflected by those acts was with respect to the killing of the deceased and not some other conduct of Yarema’s. [Emphasis added, citations omitted.]
[56] The appellant argues that instead of giving this limiting instruction, the trial judge told the jury that the appellant’s post-offence conduct, was relevant in determining whether he committed murder. After reviewing the post-offence conduct the trial judge told the jury:
Now, what a person does or says after a crime has been committed may constitute circumstantial evidence which, together with all of the other evidence, may help you decide whether that was the person who committed the offence. I say it may help. It may not help. … If you conclude that the words were spoken or that the conduct did take place, you will consider next whether the conduct or words indicate that Mr. Czibulka committed the offence or whether the conduct or words do not indicate he committed the offence.
[57] Indeed, the appellant goes further and argues that the trial judge’s failure to give a limiting instruction on post-offence conduct “was part of his failure to fulfill his broader duty of relating the relevant evidence to the mens rea for murder.” He maintains that it was particularly important for the trial judge to do so because the defence focused on the issue of identity, not on the level of culpability: see R. v. Maciel (2007), 2007 ONCA 196, 222 O.A.C. 174 (C.A.) at para. 96. The appellant submits that the trial judge’s overall instruction on the level of culpability deprived him of a fair trial.
[58] I do not accept the appellant’s submission. On the narrower aspect of his submission concerning the trial judge’s instructions on post-offence conduct, I note that the passage the appellant impugns came in the part of the charge dealing with the issue of identity. On that issue, the appellant’s post-offence conduct was relevant in deciding whether he was culpable at all. Moreover, the instruction itself was balanced. In the omitted portion of the passage cited in para. 55 above (where the ellipse appears), the trial judge explained to the jury the competing inferences available to them:
The conduct and words of Mr. Czibulka that I have outlined may indicate that he committed the offence with which he is charged. Ms. Richards for the Crown wishes you to draw that inference. However, the words and actions of the accused to which reference has been made, however, be those of an innocent person who wishes to avoid embarrassment or who wants to avoid involvement in a police investigation with respect to a crime for which he thought he might be blamed or suspected, but one which he did not commit. That is the inference which Ms. Cahill wishes you to draw.
[59] I recognize the trial judge told the jury that the post-offence conduct may help them determine whether the appellant “committed the offence with which he is charged.” However, as this instruction was given in the part of the charge on identity, I cannot see that the jury would have considered it when deciding whether the appellant was guilty of murder or manslaughter.
[60] Thus, the most the appellant can say is that the trial judge failed to give a limiting instruction. Perhaps it would have been better had he done so, but the absence of a limiting instruction did not deprive the appellant of a fair trial. The Crown did not rely on the appellant’s post-offence conduct to prove that he had the intent for murder. Nor did the trial judge refer to this evidence in the portion of his charge on whether the appellant had the requisite intent for murder.
[61] Further, defence counsel’s position may be taken as a strong indication that the absence of a limiting instruction on post-offence conduct did not result in an unfair trial. The trial judge’s charge was extensively vetted with counsel in the pre-charge discussion. Yet, defence counsel neither objected to the charge nor asked for the limiting instruction now sought on appeal.
[62] On the broader aspect of the appellant’s submission, that the trial judge failed to relate the evidence to the mens rea for murder, I am satisfied that the charge was adequate. The trial judge fairly and succinctly instructed the jury on the positions of the parties on the issue of intent. He told the jury that the Crown relied on the severity and persistence of the beatings. And though defence counsel in her closing had made no submissions on whether the appellant had the intent for murder, the trial judge told the jury they could consider the evidence of the appellant’s intoxication and his emotional state.
[63] The trial judge did not specifically refer to the appellant’s repeated utterances to the paramedics, “she no dead.” However, I doubt that a specific reference would have assisted the defence. Those utterances had the potential to “cut both ways” – they could well have been an act on the appellant’s part. Indeed, that is perhaps why the defence never sought a specific instruction on these utterances. Moreover, the jury would have been well aware of these utterances during their deliberations.
[64] I would not give effect to this ground of appeal.
(4) Did the trial judge err in principle in fixing the period of parole ineligibility at 15 years?
[65] As the appellant was convicted of second degree murder, he received a mandatory life sentence. By statute he is not eligible for parole for at least 10 years. As would be expected in a case such as this, the Crown sought an increased period of parole ineligibility: she asked for 17 years. The defence sought a period of 12 years. The jury made no recommendation. The trial judge imposed 15 years.
[66] The appellant appeals his period of parole ineligibility on the ground that the trial judge erred in principle by fixing the range of parole ineligibility for a brutal spousal murder at 12 to 17 years. The appellant contends that the appropriate range is 12 to 15 years. As the trial judge did not impose a period of parole ineligibility at the high end of the range he considered appropriate, the appellant says that if the range is 12 to 15 years, then he should be eligible for parole after 12 to 13 years.
[67] I do not accept the appellant’s contention. Admittedly, in R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263 (C.A.), the case relied on by the appellant, a majority of the panel held at p. 276 that “… no two cases are the same but similar cases from this province of brutal second degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.” However, that range is not cast in stone for all brutal spousal murders. Sentencing ranges “are guidelines rather than hard and fast rules”: see R. v. Nasogaluak 2010 SCC 6, 2010 S.C.C. 6 at para. 44. Sentencing remains an individualized process. The range stipulated in McKnight was driven by previous case law in this province and by several mitigating considerations in the case itself. These considerations included McKnight’s remorse, his many contributions to the community, and his mental illness, considerations absent in the present case.
[68] Moreover, a few months after McKnight was decided, in R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 (C.A.), another case where an accused was convicted of the brutal second degree murder of his spouse, this court imposed a period of parole ineligibility of 17 years. The panel referred to McKnight, yet said at para. 76 “But in McKnight, there were several significant mitigating circumstances that justified reducing the period of parole ineligibility and that have no counterpart in the present case.”
[69] In the case before us, the trial judge took Wristen to reflect the upper end of the range, and I do not see how he can be faulted for doing so. At trial, both Crown and defence accepted a range of 12 to 17 years.
[70] The trial judge did not impose 17 years because of some mitigating considerations. The appellant was 64 years old at the time of sentencing, he had been steadily employed for over 30 years, he had a single conviction for care and control over 80, and there was no admissible evidence of previous domestic abuse.
[71] However, in the trial judge’s view, several aggravating considerations warranted a sentence in the middle, not the lower end of the range. The trial judge agreed with Campbell J.’s opinion at the first trial that“… the distinguishing and unusual feature of this case is the savage cruelty reflected in the terrible injuries to this defenceless woman.” The trial judge went on to say that, on the pathologist’s evidence, Maria’s death could have taken several hours after the beating, and during that time she “would have experienced excruciating pain from her injuries.”
[72] Later in his sentencing reasons, the trial judge summed up his own assessment of the aggravating considerations:
Aggravating factors include his deliberate demeaning of his wife’s character and memory in order to distract the investigation and to cover up his own guilt. More particularly, the singular aggravating factor is, as has been stated, the persistent and protracted beating administered to his defenceless wife, coupled with his unspeakable indifference to her suffering after the beating was administered which brands this offence as one of, as I have mentioned, conspicuous brutality, callousness and cruelty.
[73] I agree with the trial judge’s assessment and I agree that it fully justified the 15- year period of parole ineligibility he imposed. I would therefore not interfere with the appellant’s sentence.
D. CONCLUSION
[74] I would dismiss the conviction appeal. Neither the trial judge’s decision to admit statement number four, nor his charge to the jury deprived the appellant of a fair trial.
[75] Also, I would not interfere with the 15 year period of parole ineligibility imposed by the trial judge. This period was justified by several aggravating considerations surrounding Maria Czibulka’s death, especially the terrible injuries she suffered at her husband’s hands, and the cruelty he exhibited in inflicting those injuries on his defenceless wife. Accordingly, although I would grant leave to appeal sentence, I would dismiss the sentence appeal.
RELEASED: Jan. 31, 2011 “John Laskin J.A.”
“JL” “I agree Robert J. Sharpe J.A.”
“I agree G.J. Epstein J.A.”