



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gulyas, 2019 ONCA 934

DATE: 20191126

DOCKET: C65078

Simmons, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Gulyas

Appellant

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 victims 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
    appellants unit a few minutes later.

[4]

The appellant says that he was prejudiced by the trial judges decision
    to admit evidence of prior discreditable conduct involving persons other than
    the victim. The Crown led evidence from the appellants 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 appellants unit. It also
    demonstrated the appellants 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 appellants 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.


