Court of Appeal for Ontario

Date: 2019-11-26 Docket: C65078

Judges: Simmons, Huscroft and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Peter Gulyas Appellant

Counsel

Philip B. Norton for the appellant

Karen Papadopoulos for the respondent

Heard and released orally: November 21, 2019

On appeal from the conviction entered on May 1, 2014 by Justice John McMahon of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant appeals from his conviction for second degree murder. An appeal against sentence is to be heard in the inmate stream.

[2] It is not disputed that the appellant strangled his neighbour and slit her throat and wrists. He called the police and sought to turn himself in shortly after he killed her. The issue at trial was his intention at the time of the killing.

[3] The appellant, who lived in the unit above the victim, had on several occasions complained to the property manager, the building superintendent, and the City of Toronto about noise he said was coming from the victim's unit. She, on the other hand, denied there was excessive noise. On the day of the killing, the appellant complained to the building superintendent again and the superintendent visited the victim at her unit. Shortly afterwards, the victim was seen yelling at the appellant from her balcony. She later arranged for a neighbour to watch her children while she went upstairs to confront the appellant and was seen waving her arms around outside his unit. She was killed at the appellant's unit a few minutes later.

[4] The appellant says that he was prejudiced by the trial judge's decision to admit evidence of prior discreditable conduct involving persons other than the victim. The Crown led evidence from the appellant's neighbours, who lived in the unit directly above the appellant. They testified that the appellant had come to their apartment many times over the course of a year, sometimes in the middle of the night, to complain about noise – a problem that they denied. He would shout profanities at them and kick their door if they refused to answer. The neighbours testified that he was aggressive, demanding, and always angry. The appellant says that the trial judge erred in admitting this evidence.

[5] We disagree.

[6] The trial judge recognized that prior discreditable conduct evidence is presumptively inadmissible, and carefully considered its probative value and prejudicial effects. The live issues at trial were whether the accused had the requisite state of mind for murder and whether the Crown could prove that the appellant was not provoked. Self-defence was also a potential issue. Given the animus between the victim and the appellant concerning noise complaints, the evidence was relevant to what occurred at the door of the appellant's unit. It also demonstrated the appellant's state of mind and the importance he placed on the peaceful enjoyment of his property and was probative to provide context for his interaction with the victim, as well as his state of mind on the date in question. How the appellant had acted in regard to noise complaints involving another neighbour in the apartment building was also relevant to the subjective element of the provocation test.

[7] The trial judge reviewed the considerations from R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, and concluded that the proposed evidence was sufficiently connected to the case. His decision reveals no error and is entitled to deference.

[8] We are satisfied that the trial judge properly balanced the probative value of the evidence against its prejudicial effect. He concluded that there was little risk of reasoning prejudice, but some risk of moral prejudice, arising from evidence that the appellant allegedly threatened to "break the face" of his 15-year-old upstairs neighbour. Accordingly, the trial judge excluded that evidence. We reject the appellant's submission that any further editing of the evidence was necessary and note that none was requested at trial.

[9] Finally, we note that the trial judge further minimized any risk of prejudice by providing mid-trial and final instructions limiting the use of the evidence, and specifically prohibiting its use to conclude that the appellant was a bad person or the type who would kill someone.

[10] The appeal from conviction is dismissed.

"Janet Simmons J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."