Friday, February 04, 2011

This Week at the Ontario Court of Appeal: 11-02-04

Each week Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

R. v. Luciano. An opinion which begins with one of Justice Watt's always reliably dramatic introductions:
On a cold weekend in late January 2000, the lengthy but brittle relationship among Michael Luciano, Colleen Richardson-Luciano and James Cooper ended. Abruptly and violently. First, in Woodbridge. Then, in Egmondville. Two deaths.

Colleen Richardson-Luciano died first. In Woodbridge. Stabbed to death.

A day later, James Cooper died in Egmondville. By asphyxia from strangulation.
Luciano was charged with the second-degree murder of his ex-wife and the first-degree murder of his friend. The first-degree murder trial took place before the second-degree murder trial; Luciano was found guilty of the first-degree murder and not guilty of the second-degree murder. Luciano appealed the guilty verdict of first-degree murder, while the Crown appealed the not guilty verdict on the second-degree murder charge.

Luciano's version of events was that Cooper had killed his ex-wife. Both Luciano and Cooper were ex-convicts, but whereas Luciano had settled down into what appeared to be a non-criminal lifestyle, Cooper had not (and in fact was in Canada illegally after being deported to Scotland). Luciano admitted that he had helped Cooper conceal Colleen's body after the fact but said it was because he was scared of Cooper. As regards to Cooper's death, he was strangled to death. Luciano's daughter saw the two men involved in a physical altercation, and another witness confirmed that a drunk Luciano earlier had said he was going to "do" Cooper. Luciano admitted that Cooper's death was caused by his actions but denied criminal liability for them on the basis of intoxication.

Luciano's first ground of appeal on the first-degree murder conviction was that the trial judge's instructions were flawed. He argued that the trial judge failed to effectively instruct the jury about the intoxication defense by only instructing the jury about what intoxication did not prove - e.g. automatistic behaviour preventing formation of mens rea. He also argued that the trial judge improperly interpreted the defense's expert evidence for the jury about intoxication rather than reviewing it objectively. Finally, he argued that the trial judge did not give the jury the option to find Luciano guilty of second-degree murder rather than first-degree murder.

The Court disagreed on all points. They stated that the trial judge focused firmly on the influence of evidence of intoxication on the state of mind of Luciano in his instructions, and that the complaint of negativity lacked substance. They then stated that the omission of second-degree murder as an available verdict was due to the specific joint request of all counsel at the trial. The Court also pointed out that since the defense of intoxication could only result in a manslaughter verdict, rather than downgrading a first-degree murder to a second-degree murder, that not including the second-degree murder charge was appropriate.

Luciano also appealed on the basis of propensity evidence. His participation in circumstances surrounding Colleen's death was mentioned at trial. Luciano therefore argued that this constituted allowing the jurors to decide improperly based on evidence of propensity. The Court also disagreed with this argument, as the trial judge had firmly instructed the jury that they were not to infer that Luciano killed Cooper simply if they were satisfied that Luciano had previously killed Colleen. Although the Court did agree that the trial judge's instructions were "unhelpful and unfocused," they felt this was not serious enough to constitute reversible error.

Luciano also had three more grounds of appeal: an improper Vetrovec warning about the credibility of the witnesses against Luciano, that the judge's comments about the presumed honesty of a witness were prejudicial, and that the judge improperly created a new theory of liability that the prosecution had not advanced (namely that Luciano and Cooper murdered Colleen together and that Luciano killed Cooper to eliminate a witness) leaving the defense no reasonable opportunity to rebut that theory. The first two grounds of appeal were swiftly rejected by the Court, who found the judge's wording in each instance to be fair. As for the last, the Court pointed out that this new theory of liability only affected motive for the killing, rather than the fact of the killing itself; if Luciano planned to kill Cooper out of revenge or to eliminate a witness, the difference was immaterial to a first-degree murder charge.

The Crown's appeal differed. Since the trial for Colleen's murder took place after that of the Cooper first-degree murder trial, the prosecution sought to admit the fact of Luciano's conviction for the first-degree murder as evidence. The trial judge felt that admission of that evidence would be too prejudicial to ensure a fair hearing and denied it. The Crown's appeal differed from their original argument for admission of the evidence: their appeal was that the fact of Cooper's murder would demonstrate two individuals capable of violently murdering Colleen, rather than one, and that it was necessary to properly consider the testimony of Luciano that he only participated in the post-murder cleanup with Cooper because he was afraid of Cooper.

The Court dismissed this appeal. Although the Court agreed the evidence was relevant and material, they stated it was still inadmissible because it was inherently prejudicial, that the Crown had failed to establish that the judge had incorrectly presumed the jury incapable of following complex instructions (as would be necessary were the evidence admitted), that the prosecutor had not made a second attempt to admit the Cooper evidence as more became available, and finally that the ground of appeal differed from their original reasons for admitting the evidence and that "new grounds of admissibility should garner no more appellate approval than new theories of liability." Read-the-whole-case rating: 3. A complex case, certainly, but Justice Watt always constructs his decisions in a very readable and organized manner.

R. v. Czibulka. Another murder, this time a man committing the second-degree murder of his wife. He allegedly beat her to death severely. The appellant had three grounds of appeal: firstly, an incriminating statement made by the defendant was both incoherent and further inadmissible because the appellant was detained at the time it was made without counsel; secondly, that the trial judge did not properly correct comments by the Crown in closing; and thirdly that the trial judge did not properly instruct the jury that the appellant's post-offence conduct could not be used to determine his guilt.

The first ground of appeal was that a statement made by Czibulka at the police station was both incomprehensible and inadmissible due to them being made while Czibulka was detained without counsel. (Two further statements made by Czibulka at the station, after this statement, were deemed incomprehensible.) The Court of Appeal granted that Czibulka put forth a strong case for being detained, but ultimately decided that the question of whether he had been detained was irrelevant in that the jury heard other evidence that duplicated the inculpatory aspects of the statement. They also felt that although the statement eventually became incomprehensible, that the overwhelming majority of the statement was comprehensible and therefore admissible.

The second ground of appeal was quickly dismissed. The Court felt that the Crown adequately and properly characterized the nature in which DNA evidence would arrive under the victim's fingernails (e.g. scratching, most likely in self-defense). The Court also pointed out that there was precedent for using absence of evidence of others present to establish the possibility of exclusive opportunity.

Finally, the Court considered the appellant's argument that his post-offence conduct (such as a misleading call to 911, his apparent unwillingness to cooperate with the paramedics, and his repeated requests to leave to go to work) was not appropriately handled by the trial judge, as traditionally this sort of conduct is considered to be of limited use in determining guilt. However, the Court felt that the trial judge's explanation to the jury that Czibulka's comments and behaviour could simply have been that of someone who did not wish to be blamed for a crime for he did not commit (as was the position of the defence) served well enough in that regard and that a limiting instruction was therefore not necessary. Read-the-whole-case file: 3.

- Christopher Bird, Toronto
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