This Week At The Ontario Court of Appeal: 11-08-05

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

R. v. Bucik. An appeal in a second degree murder conviction. Mr. Bucik and his co-defendant, Mr. Harrington, were accused of beating a man, Mr. Auld, to death with a sledgehammer after that man knocked on their door early in the morning in the middle of a cocaine binge. Mr. Bucik and Mr Harrington became convinced that Mr. Auld had come to their door with the intention of robbing him and decided to "teach him a lesson" by beating him up; unfortunately, the trauma of a hammerblow to the chest, combined with the cocaine in Mr. Auld's system, killed him.

The defense conceded that Mr. Harrington's hammerblow, combined with Mr. Bucik's kicks and punches, killed Mr. Auld. However, their position was that there was no evidence of intent to kill and that at most Mr. Bucik was guilty of manslaughter. The Crown relied on a KGB statement made by Mr. Bucik's landlady, who initially said that Mr. Bucik told her that Mr. Harrington said he was going to "kill the bastard" before she withdrew her statement. Unfortunately, the trial judge misunderstood this, and instructed the jury to consider that Mr. Bucik had said "I'll kill the bastard" himself, rather than him communicating Mr. Harrington's words. The trial judge, in adopting the landlady's KGB statement, also did not adopt all of it, as in that statement Mr. Bucik had also told her that he had not known that Harrington had a weapon in advance of the crime.

As regards Mr. Harrington's appeal, his argument was that the trial judge, in his instructions, did not mention the statement Mr. Harrington made to a police detective, the content of which was inconsistent with the Crown's theory that he had swung the hammer and killed Mr. Auld. This was potentially exculpatory evidence and the jury was not made aware of it. Similarly, eyewitness information of the attack inconsistent with the theory that Mr. Harrington was attacking Mr. Auld with the hammer was not included for consideration in the judge's instructions to the jury.

On these grounds, the Court of Appeal quashed both convictions and ordered new trials for both Mr. Bucik and Mr. Harrington, as the jury had not been properly instructed and could not therefore be expected to weigh all of the evidence as was proper. Read-the-whole-case rating: 2.5.

R. v. Ezard. An appeal on a conviction of possession of child pornography. Mr. Ezard worked as a nurse about an hour away from home; his wife did not work. His wife grew suspicious that he was having an affair, and so testified that she had found evidence that her husband visited computer sites that contained incest, bestiality and child pornography. She also claimed that she had found pills that her husband stole from the hospital. She went to the police with these claims with her notes on her investigation, and the police obtained a warrant to search the computer as well as the rest of the house for the stolen pills. The police found child pornography on Mr. Ezard's desktop, as well as some pills, and subsequently arrested Mr. Ezard.

At trial, Mr. Ezard denied the offence. His defence was that either the child pornography (which was a small percentage of all of the pornography present on his computer) downloaded automatically through pop-ups, or that his wifer had downloaded the child pornography herself out of malice. The trial judge found Mrs. Ezard to be a credible witness and did not believe either theory advanced by Mr. Ezard, and found him guilty. Mr. Ezard appealed, arguing that the the trial judge's reasons for judgement did not adequately explain why he rejected Mr. Ezard's evidence and that the trial judge did not properly analyze credibility of the parties.

The Court of Appeal agreed with Mr. Ezard and ordered a new trial. They first agreed with Mr. Ezard that the trial judge had not adequately explained why he had rejected Mr. Ezard's testimony, particularly in light of the numerous inconsistencies in hs wife's testimony. The trial judge did not explain why he believed that Mr. Ezard's theory about Mrs. Ezard having framed him was untrue, particularly when there was at least some evidence that she could have done so. He also did not take into account that Mrs. Ezard had deliberately tried to have Mr. Ezard face charges in respect of the pills, which were prescription sleep medication, a fact she concealed.

The Court of Appeal also noted that the judge made factual errors in his decision, both in respect of how much pornography was in fact on Mr. Ezard's computer (the trial judge stated there were approximately 8000 pornography files when in fact there were 8312 movie files, the overwhelming majority of which were not pornography) and in respect of what Mrs. Ezard actually claimed to have seen (she only testified to looking at names of files rather than viewing the contents thereof). The Court therefore felt that the trial judge's reasons provided an inadequate basis for appropriate review. Read-the-whole-case rating: 4.

- Christopher Bird, Toronto

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