Court of Appeal for Ontario
Date: September 10, 2019
Docket: C62815
Judges: Watt, Lauwers and Hourigan JJ.A.
Parties
Between
Her Majesty the Queen
Respondent
and
Rashid Ali Adan and Anthony Fitzroy Johnson
Appellants
Counsel
Nathan Gorham, for the appellant
Philippe Cowle, for the respondent
Heard: May 21, 2019
On appeal from: the conviction entered on October 1, 2014 and the sentence imposed on February 18, 2015 by Justice Joseph R. Henderson of the Superior Court of Justice, sitting with a jury.
Judgment
Watt J.A.:
The Background Facts
[1] One evening in June, Peter Williams had some guests. Among them were his sister, Beatrice, and her husband, Vinnie. The other guests were Beatrice's friends, none of whom Peter Williams knew well.
[2] Some of the guests stayed overnight in Peter Williams' apartment. Rashid Adan ("the appellant") was one of them. Anthony Johnson was another.
[3] The following morning an argument ensued. Then there were gunshots. Several gunshots. All of them fired from the same gun. A gun in the hand of the appellant.
[4] Five bullets struck Peter Williams. He survived the shooting, only to die later from unrelated causes.
[5] A jury found the appellant guilty of attempted murder. [1] The trial judge sentenced the appellant to a term of imprisonment of 11 years.
[6] The appellant appeals both conviction and sentence. These reasons explain my conclusion that both appeals fail and should be dismissed.
The Principals
[7] The appellant advances a single ground of appeal against conviction. He alleges the trial judge erred in his instructions on the use jurors could make and, must not make, of evidence of after-the-fact conduct. To appreciate the nature of this claim and how that evidence fit into the trial mosaic, it is helpful to begin with the events surrounding the shooting.
[8] The principal sources of evidence about the shooting came from two people: Peter Williams and the appellant. Williams died before trial. His testimony, given at the co-accused Johnson's preliminary inquiry, [2] was admitted as evidence at the joint trial of the appellant and Johnson. The appellant was the only defence witness at trial.
The Principals
[9] Peter Williams and his sister Beatrice lived in different units in the same apartment building. Peter Williams lived on a disability pension because of several different physical infirmities. Sometimes, he used a cane to assist him in walking. He lived alone in his apartment and was described as a "neat freak".
[10] Beatrice introduced Peter Williams to her friend, Anthony Johnson. Johnson had no place to live. Williams agreed to let Johnson stay at his apartment and to help Johnson obtain social assistance. To further Johnson's pursuit of social assistance, Williams provided Johnson a "rental receipt" and loaned him $400.
[11] The appellant and Johnson were friends. They had plans to meet on the weekend of the shooting. At Beatrice's invitation, they travelled together and attended the gathering at Peter Williams' apartment. Johnson introduced Peter Williams to the appellant that night.
The Gathering
[12] The guests at Peter Williams' apartment included his sister, Beatrice; her husband, Vinnie; the appellant; Johnson; and Talia Thomas, a young woman whom Johnson had invited. The group watched a basketball game on television.
The Party Breaks Up
[13] Around 4:00 a.m., Peter Williams asked his guests to leave. Beatrice and Vinnie returned to their own apartment. But the others remained. Johnson and Talia Thomas slept in Williams' bedroom. Williams and the appellant stayed in the living room.
The Morning After
[14] By shortly after 7 o'clock the same morning, Peter Williams was "really pissed" that the remaining guests – the appellant, Johnson, and Ms. Thomas – were still in his apartment. He wanted them out.
[15] Peter Williams made himself a cup of coffee, then went to his sister's apartment to enlist her help to get his guests out of his apartment. According to Williams, his sister declined to help him.
[16] Beatrice recalled it differently. She said Peter Williams was agitated when he arrived at her apartment. He wanted his guests, to whom he ascribed a racial epithet, out of his apartment. So Beatrice accompanied Williams back to his apartment. Beatrice awakened Johnson and explained that Williams wanted them to leave. She then returned to her own apartment; Williams stayed in his.
[17] A few moments later, Peter Williams was back at Beatrice's apartment. His guests had not left. So Beatrice's husband, Vinnie, went to Williams' apartment. When he came back, Vinnie told Williams the three guests were preparing to leave. And Peter Williams returned to his own apartment.
[18] Talia Thomas and the appellant confirmed Beatrice's attendance at Peter Williams' apartment that morning and her requests that they leave. Ms. Thomas left first. Johnson went into the bathroom. The appellant waited in the apartment so that he could also use the bathroom before he and Johnson left.
The Shooting of Peter Williams
[19] Two different versions of the shooting emerged from the evidence of the only two witnesses who testified about it: Peter Williams and the appellant.
[20] According to Peter Williams, when he returned to his apartment, he told all three who remained – the appellant, Johnson and Ms. Thomas – "you all fucking got to go." He spoke to them, he said, in a normal tone of voice. Ms. Thomas left promptly. The appellant and Johnson remained.
[21] Peter Williams recalled that Johnson grabbed a gun from a bag and threw it to the appellant who started shooting at Williams. This began about 30 seconds after Williams had returned to his apartment. Williams heard about 8-10 shots, followed by a "click, click" sound, which Williams associated with the gun being empty. He described the gun as a 9mm handgun, fully loaded, with the safety "off". Several shots struck him.
[22] The appellant's version differed significantly from that of Peter Williams.
[23] According to the appellant, while he was waiting to use the washroom, the appellant looked up and saw Peter Williams holding a gun. Williams said, "I am going to fuck you up." The appellant rushed Williams and wrestled with him, trying to get control over the gun.
[24] The appellant managed to grab the gun from Williams but Williams restrained him with a bear hug. To free himself of Williams' grip, the appellant struck Williams on the back repeatedly with the hand in which he was holding the gun. He did not intend to shoot the gun, much less to kill Williams. Williams said, "You fucking asshole, you shot me, get the fuck out of here." The appellant was unable to say when during the struggle the gun discharged.
The Flight
[25] The appellant and Johnson ran out of the apartment. Johnson and the appellant got into a cab; Ms. Thomas joined them. They travelled only a short distance until Johnson saw someone across the street whom he knew. They left the cab, got into another vehicle, and went to the apartment of a woman in Hamilton. There the appellant changed his pants and got rid of the gun. Johnson also changed his clothes. The appellant told Johnson that Peter Williams was alright after Johnson asked what had happened. The appellant, Johnson, and Ms. Thomas then took a cab to the GO Station in Hamilton. Each returned to Toronto separately.
The Aftermath
[26] Peter Williams recalled that after the shooting stopped, Johnson and the appellant ran out of the apartment. Beatrice arrived. She had her cellphone with her. She picked up some shell casings and left. Williams called his girlfriend and asked her to call 911. She did so.
[27] Beatrice remembered the events differently. Peter Williams called her and told her that he had been shot. Beatrice rushed upstairs, entered her brother's apartment and called 911 from there. She denied that she did not want to call emergency assistance.
The 911 Calls
[28] A 911 call-taker described three calls about the shooting. The first, from the victim, reporting that he had been shot four times. He then hung up. The operator called back. The second call was equally brief and ended when the victim hung up a second time. The third call, also initiated by the operator, involved Beatrice. The operator heard someone in the background mention "9mm."
The Police Response
[29] When police responded to the 911 call, they found Peter Williams sitting on a couch near the balcony door of his apartment, smoking a cigarette. The only blood visible in the apartment was in the area where Williams was sitting. Williams initially told police Johnson was the shooter but later told police that Johnson passed the gun to his "buddy" who fired the shots that struck him.
The Scene and the Forensic Evidence
[30] In Peter Williams' apartment, police found seven spent shell casings, all fired from the same 9mm gun, and located three projectiles near the balcony door. Hospital staff found four projectiles in Peter Williams' body but did not remove them for medical reasons. All the projectiles in the apartment were located close to the area of the couch where Williams had been sitting when police arrived. All seven spent shell casings were located by the entrance door to the apartment, not by the balcony door or couch where Williams was sitting. There were no signs of a struggle.
[31] Peter Williams suffered five injuries from gunshots. One bullet struck and fractured his arm. Other bullet wounds were in the middle of his back; his left shoulder blade; the left flank area near his kidney; and his left buttock.
The Positions of the Parties at Trial
[32] At trial, the Crown contended that a reasoned assessment of the evidence given by Peter Williams and the appellant, as well as the physical evidence at the scene, established the appellant's guilt of attempted murder.
[33] The defence argued the evidence failed to establish, beyond a reasonable doubt, that the appellant intended to kill Peter Williams. Instead, the evidence revealed the shooting was either accidental or in lawful self-defence.
The Appeal from Conviction
[34] The appellant raises a single ground of appeal. He challenges the correctness and adequacy of the trial judge's final instructions on the permitted and prohibited use of evidence of the appellant's after-the-fact conduct.
The Essential Background
[35] Instructions necessary to prevent a jury from mishandling of evidence of after-the-fact conduct are case-specific. Whether a trial judge's instructions were sufficient depends on the significance of the nature of the conduct involved; the use made of the evidence at trial; the instructions given about its use; and the positions of the parties about the adequacy of those instructions. Some background is necessary to evaluate the claim.
The Evidence of After-the-Fact Conduct
[36] In this case, the appellant and co-accused's after-the-fact conduct consists primarily of evidence of their acts or omissions:
i. failure to render assistance to Peter Williams or summon assistance to treat his obvious injuries;
ii. flight from the scene;
iii. changes of clothing; and
iv. disposal of the weapon used in the shooting.
[37] Williams had suffered several gunshot wounds. Blood was plainly visible on him and around the couch on which he sat. Neither the appellant nor Johnson rendered any assistance to Williams, called or attempted to call 911, or summoned his sister whom Johnson well knew. Instead, as soon as the shooting stopped, they fled Williams' apartment, first in a cab then in another vehicle, to a safe house where each changed and disposed of his previous clothes and, in the appellant's case, of the gun used in the shooting, before continuing their flight to another city.
The Pre-Charge Conference
[38] During the pre-charge conference, the trial Crown indicated that she was relying on the evidence of after-the-fact conduct. She described the evidence on which she relied but did not explain the issue or issues to which the evidence was relevant.
[39] The appellant's trial counsel made no submissions about evidence of after-the-fact conduct. He explained that his defence had three prongs:
i. the evidence, taken as a whole, did not prove beyond a reasonable doubt that the appellant intended to kill Peter Williams;
ii. the shooting was accidental and thus did not attract liability for either offence charged; and
iii. the shooting was not unlawful because the shots were fired in lawful self-defence.
Trial counsel did not want the claim of self-defence to be over-emphasized in the charge. He made no submissions about evidence of after-the-fact conduct.
[40] Counsel for the co-accused pointed to the unreliable nature of Peter Williams' evidence and relied on the appellant's testimony as a basis for his acquittal. He also sought instructions about the absence of any motive on Johnson's part and the applicability of the principles in W. (D.) to Johnson's case.
[41] The trial judge characterized the evidence of after-the-fact conduct as "a very small part of this case." He did not want to instruct the jury at length about evidence of after-the-fact conduct because of its minor role in the Crown's case. His instruction, he said, would be brief and balanced.
[42] No one objected to the trial judge's proposal.
The Closing Addresses of Counsel
[43] In his closing address, the appellant's trial counsel said nothing about the evidence of after-the-fact conduct or how jurors could consider it in reaching their verdict. Counsel focused his submissions on what he said were significant frailties in Peter Williams' testimony, only including a brief reference to the fact, but not the substance, of the appellant's testimony. He asked the jury to return verdicts of not guilty on both counts on any or all of the three discrete, but related, bases:
i. the appellant was not guilty of attempted murder because there was no evidence he intended to kill Peter Williams;
ii. the appellant was not guilty of either offence charged because the shooting was an accident; or
iii. the appellant was not guilty of either offence charged because the shooting was in lawful self-defence.
He did not refer to evidence of after-the-fact conduct.
[44] Trial counsel for the co-accused Johnson relied on the appellant's evidence that he (Johnson) was in the washroom when the shooting occurred, thus could not be said to have aided or abetted the appellant as the shooter. Counsel also attacked the credibility of Peter Williams and the reliability of his account of the shooting.
[45] In her closing address, the trial Crown analyzed Peter Williams' and the appellant's evidence given by the principals and asked the jury to accept Williams' version of the critical events, highlighting its congruence with the physical findings at the scene.
[46] Unlike defence counsel, the Crown did refer to some of the evidence of after-the-fact conduct but did so in a series of rhetorical questions about the co-accused's liability.
The Charge to the Jury
[47] After explaining the difference between direct and circumstantial evidence, the trial judge turned to "one kind" of circumstantial evidence, which he termed "evidence of post-offence conduct". He began his instructions:
It is what I could call evidence of post-offence conduct. That is, evidence of what a person said or did after an offence was alleged to have been committed, is called evidence of post-offence conduct. To be clear, what a person said or did after an offence was committed may indicate that he acted in way which, according to common sense and human experience, is consistent with the conduct of a person who committed the offence. That is, it may be circumstantial evidence of the offence being committed. You need to consider whether it is consistent with the conduct of a person who committed the offence, and also consider whether it's inconsistent with the conduct of someone who did not commit the offence. There may be an explanation, an innocent explanation, for what the accused said or did after the alleged offence.
[48] After a brief description of the evidence of post-offence conduct – leaving the scene, changing clothes, and disposing of the gun – the trial judge instructed the jury about how to use this evidence:
I'm going to suggest that you consider this post offence conduct with a two-step procedure. First, you need to make a finding of fact and decide what the accused actually did. You need to come to some conclusion based on what evidence you accept as to what occurred post offence. And, second, if you find that the accused actually did what they are alleged to have done, consider next whether this was because the accused was conscious of having committed the offence or for some other reason. That is, if you find the accused actually did what they are alleged to have done, you must be careful not to immediately conclude they did it because they were conscious of having committed the offence. Defence counsel would say to you that the actions of the accused in this case after the offence was committed, probably had much to do with the fact that these two accused were scared or fearful. There had been an argument, a handgun had been pulled by someone; they had just been through a very unusual experience. Defence counsel will suggest that explains their post offence conduct. If you do find that what the accused did afterwards was because they were conscious of having done something, you may consider that evidence together with all of the other evidence in reaching your verdict.
[49] Counsel did not object to the charge on this issue.
The Arguments on Appeal
[50] The appellant argues that three errors put the trial judge's instructions beyond the forgiveness extended by s. 686(1)(b)(iii).
[51] First, the appellant says the trial judge failed to instruct the jury on how the evidence of after-the-fact conduct must not be used. He submits that when evidence of limited admissibility, like evidence of after-the-fact conduct, is admitted in a criminal jury trial, the trial judge must explain not only how the jury may use the evidence, but also how it must not use the evidence.
[52] The appellant accepts that evidence that the appellant fled from the scene and disposed of the gun was relevant and admissible to rebut the claim of self-defence. But, the appellant argues, this evidence was not relevant or admissible in proof of an intention to kill, an essential element of the count of attempted murder. It was incumbent on the trial judge to instruct the jury about the permitted and prohibited use of this evidence. The trial judge's failure to do so, in the appellant's submission, constitutes non-direction amounting to misdirection and requires a new trial.
[53] Second, the appellant says the trial judge failed to caution the jury against the danger of overvaluing the probative force of this evidence. He submits that although evidence of after-the-fact conduct is not subject to special evidentiary rules, courts have repeatedly recognized the need to consider the reception of this evidence with caution because of a significant discrepancy between its apparent and actual probative value. This, the appellant submits, signals the need for an express caution about this potential disparity. But instead, the trial judge invited the jurors to make unrestricted use of this evidence if they found that what the appellant and co-accused did after the shooting was because "they were conscious of having done something". And, the trial judge failed to caution the jury that this evidence may appear to be more probative than it actually is if analyzed properly.
[54] Third, the appellant says the trial judge failed to give adequate instructions on other available explanations for the conduct, such as shock or panic.
[55] The respondent makes three submissions to challenge the appellant's claim of prejudicial error.
[56] First, the respondent accepts that when evidence of after-the-fact conduct is admissible for one purpose but not for another, the trial judge must so instruct the jury about its permitted and prohibited use. But no word formula is mandatory. Substance controls, not form. The adequacy of the instruction is determined by a functional approach: was the message delivered?
[57] The respondent submits that evidence of after-the-fact conduct was relevant to the appellant's state of mind because it made Peter Williams' account of the shooting more likely than that offered by the appellant. A proper instruction, therefore, would have linked it to rebuttal of self-defence and proof of state of mind. Such an instruction would have been of no benefit to the appellant. The unqualified nature of the instruction given was not helpful to the jury. Nor was it prejudicial to the appellant. It attracted no objection from two experienced defence counsel.
[58] Second, the respondent reminds us that, like any item of evidence, evidence of after-the-fact conduct must be relevant, material, and not offend any exclusionary rule. The assessment is case-specific; there are no bright line or per se rules. The evidence may be relevant and admissible to assist in proof of a required state of mind, to rebut an available defence and thus to distinguish between or among levels of culpability. As a single item of evidence, it need not be conclusive of the inference its proponent seeks to have the trier of fact draw from it. Its strength derives from the nature of the conduct involved, the positions of the parties and the totality of the evidence. That evidence of after-the-fact conduct may support a range of inferences does not render the evidence irrelevant or inadmissible.
[59] Third, the respondent says the instructions were well tailored to the live issues raised at trial; properly balanced to avoid overcomplication and the appearance of significance that outpaced this evidence's role in proof of guilt; and attracted no objection from any counsel.
The Governing Principles
[60] Two sources of principle inform our assessment of this ground of appeal. One, those which govern the nature and scope of appellate review of jury instructions, are of general application. The other, those which consider evidence of after-the-fact conduct, more particularly the content of jury instructions about its use, are of more specific application.
Appellate Review of Jury Instructions
[61] Review of jury instructions requires a functional approach. We ask whether the charge, as a whole, enabled the trier of fact to decide the case in conformity with the governing legal principles and the evidence adduced at trial. And we examine an alleged error in the context not only of the entire charge but also in the context of the trial as a whole: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at para. 8; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581 at para. 39; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 32, 41.
[62] Jury instructions ought not be subject to endless dissection, minute scrutiny and criticism in the manner of an examination by a forensic pathologist to determine the cause of death. It is the overall effect of the instructions that matters, not individual word choice or the sequence of instructions followed: Araya, at para. 39, citing R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at paras. 30, 31. The functional approach requires us to ask whether the jury was properly instructed, not whether it was perfectly instructed: Calnen, at para. 9; Araya, at para. 39; Jacquard, at para. 62.
[63] An important factor in appellate review of the adequacy of jury instructions is the position of trial counsel, in particular, whether counsel objected to the charge on the issue raised on appeal. The failure to object is not decisive. A failure to object does not make whole what is otherwise an error. But a failure to object is a factor warranting consideration on appellate review. Its influence is a variable, not a constant. A failure to object to an instruction later advanced as erroneous before a reviewing court may say something about the overall accuracy of the instructions, the fairness of the charge, and the seriousness of the alleged misdirection: Calnen, at paras. 38-40; Daley, at para. 58; Jacquard, at para. 38; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3.
Evidence of After-the-Fact Conduct
[64] Evidence of after-the-conduct includes evidence of what an accused said and did after the offence was allegedly committed. Because it takes in a vast array of circumstances, its legal treatment in the chain of proof is highly context and fact-specific: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at para. 106 per Martin J. (dissenting, but not on this point).
[65] Just like other types of evidence, evidence of after-the-fact conduct is received if it is relevant, material, not contrary to any applicable admissibility rule and its probative value exceeds its prejudicial effect: Calnen, at para. 107 per Martin J. (dissenting, but not on this point).
[66] Relevance has to do with the relationship between the item of evidence and the fact its proponent seeks to establish by its admission. Relevance is assessed in the context of the other evidence adduced, the case as whole, and the positions of counsel. Evidence is relevant if, as matter of everyday experience and common sense, it makes the fact for which it is tendered slightly more or less probable than it would be without the evidence. There are no per se or bright line rules: Calnen, at para. 112 per Martin J. (dissenting, but not on this point); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206.
[67] Evidence of after-the-fact conduct is circumstantial evidence and, like all circumstantial evidence is all about inferences grounded on logic, common sense, and human experience. Accordingly, a single piece of circumstantial evidence may sponsor a range of inferences but that does not nullify it as a means of proof or render it irrelevant: Calnen, at para. 112 per Martin J. (dissenting, but not on this point); Luciano, at para. 205. In most instances, it is for the trier of fact to choose the inference it will draw from the array of possibilities: Calnen, at para. 112 per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 78.
[68] Materiality is a legal concept. Evidence is material if it is offered to prove a fact in issue, as determined by the allegations in the indictment and the law governing the proceedings: Calnen, at para. 109 per Martin J. (dissenting, but not on this point); Luciano, at para. 207. Material issues at a trial are those dealing with the essential elements of the offences charged, the modes of participation relied upon, and the defences or justifications in play.
[69] Evidence of after-the-fact conduct relevant to prove fault or to distinguish between different levels of culpability is material: Calnen, at para. 119 per Martin J. (dissenting, but not on this point); R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 769, at para. 20; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20. It may also be relevant to another material issue – the rebuttal of a defence, justification, or excuse in play at trial – as for example, self-defence, which renders conduct lawful, thus not attracting criminal liability, or accident; Calnen, at para. 114 per Martin J. (dissenting, but not on this point); R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183 at para. 56; R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41 at para. 63.
[70] Evidence of after-the-fact conduct should be viewed as a whole, in light of all the evidence presented at trial. Alternate explanations for after-the-fact conduct do not render the evidence irrelevant. Only where the overall conduct and context is such that it is no longer possible to choose between the available inferences as a matter of logic, common sense, and human experience, is relevance lost: Calnen, at para. 133 per Martin J. (dissenting, but not on this point); McLellan, at paras. 47, 49 citing R. v. Moffit, 2015 ONCA 412, 326 C.C.C. (3d) 66, at para. 37, leave to appeal refused, [2015] S.C.C.A. No. 465.
The Principles Applied
[71] Despite some deficiencies in the trial judge's instruction on the evidence after-the-fact conduct, I would not give effect to this ground of appeal.
[72] To determine the nature and extent of any errors or omissions in the instructions, it is essential to examine precisely what the trial judge said, or failed to say, about how the jury could use evidence of post-offence conduct in reaching its verdict. By testing these instructions against what is required by the controlling authorities, we are able to identify the nature and extent of any errors or omissions, then proceed from their identification to assay their effect on the verdict reached at trial.
[73] After instructing the jury about direct and circumstantial evidence, the trial judge turned to evidence of after-the-fact conduct. He described this evidence as a kind of circumstantial evidence and highlighted the need for a link between the after-the-fact conduct and the offence. The trial judge told the jury to consider whether the conduct was consistent with the conduct of someone who had committed the offence and inconsistent with the conduct of a person who did not commit the offence, or whether there was an innocent explanation.
[74] The trial judge described the evidence of after-the-fact conduct as:
i. flight from the scene;
ii. change of clothes; and
iii. disposal of the gun.
He then invited the jury to follow a two-step approach to consider this evidence. The first step involved a finding of what the appellant and co-accused actually did after the shooting. And the second, only reached in the event of a positive finding at the first step, required the jurors to consider whether appellant and co-accused acted because they were conscious of having committed the offence. He then summarized the alternative explanations for the conduct advanced by defence counsel and concluded:
If you do find that what the accused did afterwards was because they were conscious of having done something, you may consider that evidence together with all of the other evidence in reaching your verdict.
[75] The instructions included several key elements: a caution advising jurors not to immediately conclude from a finding that conduct occurred that it happened because the appellant and co-accused had committed the offence; a requirement that the jurors consider alternate explanations, such as fear and panic, before concluding that the conduct was attributable to consciousness of having committed the offence; and a direction that the evidence could only be used in reaching their verdict if the conduct and consciousness of having committed the offence as the cause of the conduct had been established.
[76] But these instructions also had two deficiencies.
[77] First, they failed to spell out the permitted and prohibited uses of the evidence of after-the-fact conduct. The trial judge did not identify the specific purpose for which the jury could use the evidence of post-offence conduct in reaching its verdict. Nor did he tell the jury about any purpose for which the evidence could not be used.
[78] Second, the trial judge's description of the evidence of after-the-fact conduct was underinclusive. It contained no reference to the appellant and co-accused's failure to assist the victim, as, for example, by rendering actual assistance, calling 911 or reporting the shooting to the victim's sister whom they knew lived in the same apartment building.
[79] These deficiencies, however, did not cause the appellant any substantial wrong or result in a miscarriage of justice.
[80] There were two contested issues at trial.
[81] The first required the jury to determine whether the shooting of Peter Williams occurred in circumstances that attracted criminal liability. This required the jury to consider two competing versions of the events, the defence of accident and the justification of self-defence. The second issue, which only required decision if the jury found the shooting culpable, was whether the appellant intended to kill the victim.
[82] The appellant was not prejudiced trial judge's failure to explicitly identify the permitted and prohibited uses of this evidence of after-the-fact conduct. The evidence was relevant to two material issues at trial. It tended to rebut the appellant's evidence that the shooting was either accidental or in lawful self-defence. It was also relevant on the issue of intent, in particular, the intent to kill. It is difficult to see how the failure of the trial judge to particularize the permitted uses of this evidence caused the appellant any prejudice. In these circumstances, it is equally difficult to fathom a prohibited use that could have formed the subject-matter of an instruction. There was no dispute about who shot Peter Williams. The relevance of the evidence of post-offence conduct to the appellant's state of mind had the ineluctable effect of distinguishing between levels of culpability and its relevance to the defences advanced helped to establish culpability for the shooting.
[83] Nor was the appellant prejudiced because of the underinclusive description of the evidence of after-the-fact conduct. The evidence the trial judge failed to mention – that the appellant did not render or summon assistance for Peter Williams after shooting him – was relevant to, and admissible on, the issue of the appellant's state of mind, in particular, his intent to kill: R. v. Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346 at para. 12.
[84] Further, as the trial judge observed, evidence of post-offence conduct was not a predominant feature of the appellant's trial. The case was mostly about the circumstances of the shooting, not what the appellant and the co-accused did later. The evidence of after-the-fact conduct was not even prominent in rebuttal of the claims of accident and self-defence. And it received only a passing mention in trial counsel's closing submissions, leaving it unlinked to any contested issue at trial.
[85] Finally, not only was there no objection from either experienced defence counsel to the inclusion or substance of the after-the-fact conduct instruction, but counsel made a concerted effort to ensure that this evidence was not accorded a prominent place or detailed elaboration in the charge.
[86] This was not a perfect charge. Nor need it have been. But it was adequate and consistent with the "under the radar" approach trial counsel adopted. A more detailed charge would not have been beneficial to the appellant. Nothing said or left unsaid caused this appellant any substantial wrong or resulted in a miscarriage of justice.
The Appeal from Sentence
[87] The trial judge sentenced the appellant to a term of imprisonment of 11 years on the conviction of attempted murder. The appellant seeks to appeal this sentence on the ground that the trial judge failed to apply the fundamental principle of sentencing – proportionality.
The Background
[88] The circumstances of the appellant, the positions on sentence advanced at trial, and the trial judge's provide the background necessary to address the sentence appeal.
The Circumstances of the Appellant
[89] Trial counsel did not request, and the trial judge did not order, a pre-sentence report. According to trial counsel's submissions, the appellant was 21 years old when he shot Peter Williams and 24 when sentenced. He lived with some members of his family. His parents had divorced when he was very young. He left school before completing Grade 11 but was trying to extend his educational qualifications while in custody. His employment history consisted mainly of short-term employment through various employment agencies, but he did work for one year in another province.
[90] The attempted murder of Peter Williams was the appellant's first offence. At the time of sentencing, however, the appellant had been convicted and sentenced on a firearms charge. He was detained prior to trial on that charge and had several months remaining on that sentence when sentenced on this conviction.
The Positions of the Parties on Sentence
[91] Trial counsel invited the trial judge to impose a sentence of imprisonment of nine years. He did not seek credit for pre-sentence custody because the pre-sentence detention related to the subsequent firearms offence.
[92] The Crown sought a sentence of imprisonment in the range of 12-15 years served concurrently with the sentence the appellant was then serving for the unrelated firearms conviction. She too invited the trial judge not to award the appellant any credit for pre-sentence custody.
The Reasons for Sentence
[93] After making some findings of fact about the circumstances of the offence, the trial judge referred to the fundamental principle of sentencing – the protection of society. He considered the dominant sentencing objectives for serious violent offences, such as attempted murder, were denunciation and deterrence. But he also acknowledged the need to consider rehabilitation because of the appellant's age and the absence of any criminal record when he shot Peter Williams.
[94] The trial judge considered the appellant's age, the absence of a criminal record, and the fact that the offence was not pre-meditated, as mitigating factors. He viewed the appellant's moral culpability (evidenced by an intent to kill) as well as his use of a restricted or prohibited firearm, the number of shots fired and the location of the offence (in the victim's home) as aggravating factors.
[95] The trial judge then imposed a sentence of 11 years imprisonment to be served concurrently with the sentence the appellant was already serving. He awarded no credit for pre-sentence custody.
The Arguments on Appeal
[96] The appellant says the trial judge failed to apply the fundamental principle of proportionality in sentencing the appellant, a youthful first offender, to imprisonment for 11 years. He asks this court to reduce the sentence to nine years because the trial judge:
did not mention the fundamental principle of proportionality among the sentencing principles and objectives he identified as controlling;
failed to make the findings of fact required of him under s. 724(2) of the Criminal Code as a basis for the sentencing;
said that the details about the appellant's offence did not matter in determining a fit sentence;
considered an element of the offence – the intent to kill – as an aggravating factor on sentence, despite binding authority to the contrary;
assessment of the appellant's moral culpability was incomplete and imbalanced, and
failed to keep in mind that Williams recovered physically from his injuries when he considered the nature of Peter Williams' injuries as an aggravating factor on sentence.
[97] The respondent rejects the appellant's claim. He reminds us that sentencing decisions are entitled to substantial deference on appellate review. Appellate courts can only intervene if an error of law or principle had an impact on the sentence imposed or the sentence imposed is otherwise demonstrably unfit. In the respondent's submission, it beggars belief that an experienced trial judge would have lost sight of and failed to apply the fundamental principle of sentencing – proportionality.
[98] The respondent also takes issue with the appellant's reliance on various aspects of the trial judge's reasons as evidence that he failed to consider and apply the fundamental principle of proportionality.
[99] The trial judge found that Peter Williams was not the aggressor. The only act of aggression alleged was Williams' production of the gun. The trial judge concluded from the jury's rejection of the claims of accident and self-defence that they were also satisfied that the appellant, not Williams, was the aggressor.
[100] The respondent concedes that the trial judge erred in considering intent to kill, an essential element of the offence of attempted murder, to be an aggravating factor on sentence. That acknowledged, the trial judge was bound to take into account, in connection with proportionality, the gravity of the appellant's offence and his moral blameworthiness. Intending to kill another human being is reflective of these components of the fundamental principle of proportionality.
[101] Further, the respondent continues, the trial judge did consider the victim's recovery from his wounds, but as he was entitled to do, he did not consider that recovery was a mitigating factor as the appellant claims. While it is true that the offence did not occur in a public place with the attendant risk to innocent bystanders, it happened in the victim's own home where he was entitled to feel safe and involved the firing of several shots that emptied the magazine of a prohibited or restricted firearm and left the victim, who had befriended the appellant, permanently injured.
The Governing Principles
[102] The principles that govern our statutory authority to consider the fitness of a sentence imposed at trial are uncontroversial and in no need of elaboration. Four brief points will suffice.
[103] First, sentencing judges are in the best position to determine a just and appropriate sentence that pays heed to the sentencing objectives and principles set out in the Criminal Code. It is especially so where the sentence is imposed after a contested trial. Accordingly, appellate courts accord substantial deference to sentencing decisions when exercising their powers of review under s. 687(1) of the Criminal Code: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 11, 48.
[104] Second, an appellate court is entitled to intervene under s. 687(1) of the Criminal Code where the sentencing judge erred in principle, failed to consider a relevant factor, or erred in considering an aggravating or mitigating factor, but only if it appears from the sentencing judge's decision, read as a whole, the error impacted had an impact on the sentence ultimately imposed: Lacasse, at paras. 43-44.
[105] Third, the mere fact that a judge deviates from the proper sentencing range does not, on its own, justify appellate intervention. The choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot, on its own, constitute a reviewable error. Apart from errors of law or principle that impact the sentence, appellate intervention is only warranted where the sentence imposed is demonstrably unfit, that is to say, clearly unreasonable: Lacasse, at paras. 11, 51-52.
[106] The final point concerns aggravating and mitigating factors. While it is an error to consider an element of the offence an aggravating factor, such an error must have had an impact on the sentence imposed to permit appellate intervention: Lacasse, at paras. 42-44. Likewise, a sentencing judge's decision to weigh aggravating and mitigating factors in a particular way does not, in itself, permit appellate intervention unless the weighing is unreasonable: Lacasse, at para. 49, 78.
The Principles Applied
[107] I would reject this claim of error. As I will explain, I am not satisfied, reading the reasons for sentence as a whole, that the trial judge failed to have in mind or to apply the fundamental principle of proportionality in determining the sentence he imposed.
[108] Section 687(1) of the Criminal Code limits appellate courts' authority to intervene in sentence appeals. An error alone is not enough. In the language of Lacasse, not only must there be an error, but that error must also have had an impact on the sentence imposed to such an extent that the sentence is not fit.
[109] To begin, I am not at all persuaded that, without more, the sentencing judge's failure to explicitly state the principle of proportionality reflects an error of law or principle, much less an error that had an impact on the sentence ultimately imposed. The better measuring stick is whether the reasons, read as a whole, betray fidelity to this fundamental principle that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender who committed it. By that measure, this claim of error in principle fails.
[110] Second, the appellant's submission that the sentencing judge failed to review the evidence adduced at trial and to make relevant findings of fact essential for sentencing purposes falls on barren ground. In jury trials, s. 724(2)(a) requires the sentencing judge to accept as proven all facts, express or implied, essential to the jury's guilty verdict. Section 724(2)(b) of the Criminal Code permits, but does not require, a sentencing judge to find any other relevant facts proven on the basis of evidence adduced at trial or presented by either party on the sentencing hearing. The language of s. 724(2)(a) is mandatory; that of s. 724(2)(b), permissive.
[111] In this case, the trial judge found, based on the jury's verdicts, that the gun had been brought to the apartment, produced by the co-accused and fired repeatedly by the appellant from a distance of four feet after an argument, not in self-defence and not by accident, causing serious injuries to Williams. These were findings of fact based on the evidence adduced at trial. They were relevant for sentencing purposes and extended beyond what arose expressly or by necessary implication from the jury's verdict.
[112] Third, the related complaint that the trial judge considered "the details of the argument […] not relevant for sentencing purposes". The context in which the sentencing judge made this comment is important. At first light, the statement seems wrong – the circumstances in which an offence was committed do matter, indeed are essential components of the sentencing decision. However, the reference to "the details of the argument" in this case has to do with the subject-matter of the dispute, not the fact that there was a dispute or the link between the dispute and the shooting. The contemporaneity of these two events – the argument and the shooting – tends to show the reactive nature of the shooting and thus, as the trial judge pointed out elsewhere, that it was not premeditated. If premeditation had been established, it would have been a significant aggravating factor on sentence.
[113] Fourth, an essential element of an offence of which an accused has been convicted cannot do double duty as an aggravating factor on sentence: Lacasse, at para. 42. Thus it was wrong for the sentencing judge to consider intent to kill as an aggravating factor. On the other hand, might it not be said that this, the most morally blameworthy state of mind known to our criminal law, bears upon the "degree of responsibility" component of the proportionality principle? In any event, I am unable to tease out of the reasons as a whole any nexus between this misstatement and the sentence imposed.
[114] Fifth, the complaint that the sentencing judge erred in narrowing the applicable range of sentence unnecessarily when determining the sentence he would impose is unavailing. The choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot, on its own, constitute a reviewable error. Appellate intervention is only warranted where the sentence imposed is demonstrably unfit: Lacasse, at para. 51. That is not this case.
[115] In the end, I am not satisfied that the appellant has established that the trial judge failed to respect the fundamental principle of proportionality in making his sentencing decision. Nor am I persuaded that the sentence is otherwise demonstrably unfit.
Conclusion
[116] I would dismiss the appeal from conviction, grant leave to appeal sentence, but dismiss the appeal from sentence.
Released: September 10, 2019
"David Watt J.A."
"I agree. P. Lauwers J.A."
"I agree. C.W. Hourigan J.A."
Footnotes
[1] The appellant and Anthony Johnson were tried jointly on a two-count indictment containing counts of attempted murder and aggravated assault. The jury found the appellant guilty of both counts. The trial judge entered a stay on the count of aggravated assault. Johnson, who does not appeal, was found not guilty of attempted murder, but guilty of aggravated assault.
[2] Johnson was charged first, elected trial by judge and jury and had a preliminary inquiry at which Williams testified. The appellant was charged about one year after the shooting. The Crown indicted the appellant directly and joined him with Johnson in the same indictment on which they were jointly tried.
