





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 couples 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 Marias 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 appellants 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 appellants 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 CROWNS 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 appellants statements.  To put the
    appellants submissions in context, I will briefly review this evidence.

(a)
Evidence of exclusive opportunity

·

The paramedics arrived to discover Marias 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 Marias body.

·

On Saturday night, a neighbour heard bumping and
    thumping sounds, and Maria moaning.  The neighbour attributed these sounds to
    the couples 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 Marias
    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 appellants DNA was found under Marias
    fingernails.  No one elses was.  The appellant had scratches on his hand, and
    Maria had bruises on her knuckles.

·

Torn clumps of hair removed from Marias head
    were found in the living room, together with a beer bottle that had on it the
    appellants 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 Marias
    doctor.  On the other hand, the appellant did not tell the 9-1-1 operator about
    his wifes 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 appellants 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 appellants 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 dont know.  Always going out and in, out and in.  She
    not working.  Always going out.

Q:        What happened?

A:        I dont know.  I going to sleep.

Q:        Where did Maria sleep last night?

A:        I dont know where she was.  She was crying and said, Im
    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 officers 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 dont
    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 accuseds 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 judges 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 appellants 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 individuals liberty interest has been suspended by a
    significant physical or psychological restraint:  see
R. v. Grant
, [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 appellants 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 judges ruling in this case.

[23]

Looking at the factors set out in
Grant
,
    I consider this to be a close case.  Ordinarily a trial judges 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 officers 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 appellants 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 judges finding.  The officer who
    asked the appellant to come to the station apparently did so at least partly
    out of sensitivity to the appellants 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 Marias body to the morgue.

[29]

Moreover, though a few of the officers
    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 officers
    questions became pointed, the appellant appeared to be evasive.  Yet statement
    four was not needed to show the appellants 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 appellants 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 appellants
    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 judges 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 judges 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
    Crowns 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] 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 appellants 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
    judges 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 dont know.  Always going out and in, out and in.  She
    not working.  Always going out.

Q:        What happened?

A:        I dont know.  I going
    to sleep.

Q:        Where did Maria sleep
    last night?

A:        I dont know where she was.  She was crying and said, Im
    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 officers 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 dont
    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 appellants
    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 Marias fingernails; the other concerning the
    appellants exclusive opportunity to commit the offence.  At trial, no
    objection was taken with either assertion.  I do not accept the appellants
    contention on appeal.

(a)

DNA under Marias fingernails

[46]

The Crown called Pam Newall from the Center of
    Forensic Sciences to give expert evidence on DNA.  Ms. Newall testified that
    the appellants DNA under Marias fingernails had probative value.  The
    appellant accepts this to be so.

[47]

However, the Crown suggested to the jury that
    the absence of anyone elses DNA under Marias fingernails was also significant:

As for the finger  the DNA under
    the fingernails, what was found under Marias 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. Czibulkas DNA under
    Marias 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. Newalls evidence and should have been corrected by the trial
    judge.

[48]

I agree with the Crown on appeal that the trial
    Crowns suggestion was fair advocacy, and not a misstatement of the evidence. 
    In Ms. Newalls 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
    attackers brutal beating, one might fairly expect that the attackers 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 Crowns 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] 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 appellants 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
    appellants 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 appellants 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
    accuseds culpability but not to the level of that culpability is now well
    established.  See, for example,
R. v. Marinaro
, [1996] 1 S.C.R. 462,
    adopting Dubin C.J.Os dissent at (1994), 76 O.A.C. 44 (C.A.);
R. v. Wiltse
(1994), 19 O.R. (3d) 379 (C.A.);
R. v. Peavoy
(1997), 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 Yaremas 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
    Yaremas 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 Yaremas. [Emphasis added,
    citations omitted.]

[56]

The appellant argues that instead of giving this limiting instruction,
    the trial judge told the jury that the appellants 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 judges
    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), 222 O.A.C. 174 (C.A.)
    at para. 96.  The appellant submits that the trial judges overall instruction
    on the level of culpability deprived him of a fair trial.

[58]

I do not accept the appellants submission.  On the narrower aspect of
    his submission concerning the trial judges 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 appellants
    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 appellants 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 counsels 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 judges 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 appellants 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 appellants intoxication and his
    emotional state.

[63]

The trial judge did not specifically refer to the appellants 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 appellants 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 appellants contention.  Admittedly, in
R. v.
    McKnight
(1999), 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 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 McKnights 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), 41 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 judges 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 pathologists evidence, Marias 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 wifes 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 judges assessment and I agree that it fully
    justified the 15- year period of parole ineligibility he imposed.  I would
    therefore not interfere with the appellants sentence.

D.

CONCLUSION

[74]

I would dismiss the conviction appeal.  Neither the trial judges
    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 Czibulkas death, especially the
    terrible injuries she suffered at her husbands 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.


