R. v. Charemski (J.) (1998), 108 O.A.C. 126 (SCC)

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Temp. Cite: [1998] O.A.C. TBEd. AP.024

Janusz Charemski (appellant) v. Her Majesty the Queen (respondent)


Indexed As: R. v. Charemski (J.)

Supreme Court of Canada

Cory, McLachlin, Iacobucci, Major and Bastarache, JJ.

April 9, 1998.


The accused was charged with murdering his wife, from whom he was separated. At the close of the Crown’s case, the accused moved for a directed verdict of acquittal. The trial judge allowed the motion and directed a verdict of acquit­tal. The Crown appealed.

The Ontario Court of Appeal allowed the appeal. The accused appealed.

The Supreme Court of Canada, McLachlin and Major, JJ., dissenting, dismissed the appeal.

Criminal Law – Topic 4359

Procedure – Jury charge – Directed verdict of “not guilty” – The Supreme Court of Canada set out the test for a directed ver­dict – See paragraphs 2 to 4.

Criminal Law – Topic 4359

Procedure – Jury charge – Directed verdict of “not guilty” – The accused was charged with his wife’s murder – The couple was separated – The wife was found dead in her bathtub – No signs of strangulation – The apartment was neat and in order – Pathologists could not determine whether the death was accident, suicide or homi­cide – The trial judge directed a verdict of acquittal for lack of evidence of causation – The appeal court set aside the directed verdict – The Supreme Court of Canada affirmed the decision – The evidence that the deceased was in the bathtub with her head at the faucet end and there were hot water burns on the skin, but not on the lungs, was at least some, albeit not com­pelling evidence, of foul play (i.e., causa­tion) – See para­graphs 1 to 14.

Criminal Law – Topic 4440

Procedure – Verdicts, discharges and dis­missals – Directed verdicts – [See both
Criminal Law – Topic 4359

Cases Noticed:

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [paras. 2, 19].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [paras. 2, 19].

R. v. Comba, [1938] S.C.R. 396, refd to. [paras. 4, 27].

Hodge’s Case (1838), 2 Lewin 227; 168 E.R. 1136, refd to. [paras. 4, 27].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435, refd to. [para. 12].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [paras. 13, 19].

R. v. John, [1971] S.C.R. 781, refd to. [para. 12].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 13].

Ryder v. Wombwell (1868), L.R. 4 Ex. 32, refd to. [para. 21].

Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), refd to. [para. 24].

R. v. Morabito, [1949] S.C.R. 172, refd to. [para. 24].

Curley v. United States (1947), 160 F.2d 229, refd to. [para. 25].

United States v. Taylor (1972), 464 F.2d 240, refd to. [para. 25].

United States v. Martinez (1991), 922 F.2d 914, refd to. [para. 25].

Jackson v. Virginia (1979), 443 U.S. 307, refd to. [para. 25].

Tibbs v. Florida (1982), 457 U.S. 31, refd to. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 31].

Authors and Works Noticed:

Cross and Tapper on Evidence (8th Ed. 1995), pp. 191, 192 [para. 25].

Delisle, Evidence: Principles and Problems (3rd Ed. 1993), p. 178 [para. 21].

Delisle, R.J., Evidence – Tests for Suffi­ciency of Evidence: Messo v. The Queen (1987), 66 Can. Bar Rev. 389, pp. 392 [para. 23]; 393 [para. 21].

Gillies, Peter, Law of Evidence in Austra­lia (2nd Ed. 1991), pp. 206 to 208 [para. 25].

Jones on Evidence: Civil and Criminal (7th Ed. 1992), p. 447 [para. 25].

McCormick on Evidence (4th Ed. 1992), generally [para. 25]; p. 435 [para. 39].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988), p. 17-3 [para. 37].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 136 [para. 3].

Tanovich, David M., Montleone’s Legacy: Confusing Sufficiency with Weight (1994), 27 C.R.(4th) 174, pp. 175, 176 [para. 21].


Clay M. Powell, Q.C., and Gordon D. Cudmore, for the appellant;

Susan G. Ficek, for the respondent.

Solicitors of Record:

Paul Carter, Criminal Lawyers, London, Ontario, for the appellant;

Attorney General for Ontario, Toronto, Ontario, for the respondent.

This appeal was heard and judgment ren­dered on February 26, 1998, before Cory, McLachlin, Iacobucci, Major and Bastarache, JJ., of the Supreme Court of Canada. The following reasons for judgment were delivered in both official languages on April 9, 1998:

Bastarache, J. (Cory and Iacobucci, JJ., concurring) – see paragraphs 1 to 14;

McLachlin, J., dissenting (Major, J., concurring) – see paragraphs 15 to 43.


R. v. Charemski (J.)

(1998), 108 O.A.C. 126 (SCC)

Supreme Court of Canada
Reading Time:
24 minutes
Bastarache, Cory, Iacobucci, Major, McLachlin 

Bastarache, J.
: The main question in this appeal is whether the Court of Appeal erred in setting aside the trial judge’s directed verdict of acquittal. In my opinion, it did not. As will be shown below, when the evidence is assessed in light of the correct test for a directed verdict, the appeal should be dismissed.

The “No Evidence” Test

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