COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blair, 2007 ONCA 45

DATE: 20070126

DOCKET: C42662/C42716

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANDRE BLAIR, DWAYNE JAHTON BLAIR and PAUL WILLIAMS (Appellants)

BEFORE:

CATZMAN, GILLESE and MACFARLAND JJ.A.

COUNSEL:

Paul Calarco for the appellant Dwayne Blair

Mark Halfyard for the appellant Paul Williams

Shelley Hallett

for the respondent

HEARD:

January 25, 2007

On appeal from the convictions entered on October 6, 2004 and the sentences imposed on November 1, 2004 by Justice McRae of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] Dwayne Jahton Blair, Andre Blair and Paul Williams were charged with robbery, assault, pointing a firearm, forcible confinement and possession of a prohibited weapon. The three were tried by a jury before McRae J. of the Superior Court of Justice.

[2] At trial, the Crown’s theory was that the accused had gone to the Williams home, armed with guns, looking for an individual named Anthony and demanding drugs. Anthony was Mr. Williams’ nephew. After being told that Anthony no longer lived at the house, the men forced their way into the home, assaulted the homeowner’s son and robbed the homeowners. While in the upstairs part of the house, the son and his parents were ordered into the master bedroom and made to sit on the bed. The goods that were to be stolen were found in a plastic garbage bag near the front door of the Williams’ home. They were items of clothing belonging to the homeowner’s son. No money was ever demanded from the Williams. No jewellery, wallets, electronics or anything else of particular value was taken or placed into the garbage bag.

[3] All three accused advanced the same theory at trial. There was no robbery. Rather, the events occurred as a result of a gun deal gone bad. The purpose of their visit to the Williams’ home was to obtain delivery of a gun from the homeowner’s son. The son had been previously paid $2,000 for the gun. When they arrived at the home, the son let them in. However, when he did not have the gun that had been ordered, an altercation took place between him and one of the accused. In the end, the son gave the accused a bag of his clothing as collateral until he could either obtain the gun or refund the money. His parents lied to protect themselves or their son.

[4] The trial lasted 14 days. It concluded with all three accused being acquitted of robbery, assault and pointing a firearm but convicted of forcible confinement and possession of a prohibited weapon. Prior to sentencing, the Crown stayed the forcible confinement charge against Paul Williams.

[5] Dwayne Blair was sentenced to 18 months in prison in addition to fifteen months of pre-trial custody. He appeals against conviction and sentence.

[6] Paul Williams appeals his conviction.

[7] The appellants raised a number of grounds of appeal. Of these, the court called on the Crown in respect of the trial judge’s alleged failure to properly relate the theory of the defence to the jury and to properly instruct the jury in accordance with R. v. W.(D.). It also called on the Crown in respect of Dwayne Blair’s sentence appeal.

THE CONVICTION APPEAL

The Theory of the Defence

[8] We are satisfied that the jury was left with a sufficient understanding of the key factual issues, the law which relates to those issues and to the evidence, the positions of the parties and the relevant evidence. The trial judge adequately explained the elements of the offences and gave a summary of the evidence of all witnesses, which included a review of the evidence relating to the defence’s failed gun transaction theory. In their closing submissions, counsel for each of the three co-accused fully canvassed the inconsistencies and weaknesses in the Crown’s case

[9] In our view, the appellants’ acquittals on three counts demonstrate that the jury had been properly exposed to the defence theory.

The Instruction on W. (D.)

[10] The essence of the appellants’ position on this issue is that although the trial judge charged the jury on W.(D.), he erred by failing to tell the jury that it had to consider all of the defence evidence, including that of the co-accused, when considering the first and second steps in W.(D.). That is, the trial judge compartmentalised the W.(D.) instructions so that it was used only for each individual accused.

[11] While the trial judge did not explicitly state, during his instruction on W.(D.), that the jury should consider the testimony of Paul Williams and Andre Blair (Dwayne Blair did not testify), in determining whether the Crown had proven its case, a consideration of the full jury charge shows that the trial judge clearly instructed the jury to consider all of the evidence, including that of the accused who had testified, with respect to each of the accused. The charge is replete with examples of this instruction, a few of which are set out now:

I will only refer to some of the evidence. You will consider all of the evidence, the arguments of counsel and my charge …

If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that they or any of them committed an offence, you should find him or them not guilty. …

When considering your verdict, therefore, do not test each piece of evidence to see if it has been proven beyond a reasonable doubt; rather, consider all of the evidence, the totality of the evidence that you find credible. On that basis, decide whether the case has been proven. …

If you are satisfied beyond a reasonable doubt on all of the evidence that you have heard that the events occurred as described …

[12] In our view, the jury could have been under no misapprehension as to the correct burden and standard of proof.

THE SENTENCE APPEAL

[13] When sentencing Dwayne Blair, the trial judge stated:

There is no doubt he [Dwayne Blair] is the one that assaulted Paul Williams Junior although he has not been convicted of that. That was the evidence of the defence witnesses as well as the Crown witness.

[14] However, as all of the accused had been acquitted of the assault charge, it was an error in principle to impose a sentence that reflects such an offence. Accordingly, this court may intervene and impose a sentence that it deems fit.

[15] Dwayne Blair was 21 years old at the time of the offences. He had a youth record. In addition, he had two drug convictions for possession and a conviction for obstructing a peace officer. The longest sentence he had served prior to incarceration for these offences was 16 days. He spent fifteen months in pre-trial custody on these offences, for which he was given thirty months credit. He had then been on bail on fairly restrictive terms for a further fifteen months. He then served some five and a half months in custody on this sentence before being released on bail. A consideration of the pre-trial custody and time served makes an effective sentence of approximately 3 years. We are satisfied that, in the circumstances of this case, a fit sentence is time served and would so order.

DISPOSITION

[16] Accordingly, the appeals against convictions are dismissed. Dwayne Blair’s appeal against sentence is allowed and varied to time served.

“M. A. Catzman J.A.”

“E. E. Gillese J.A.”

“J. MacFarland J.A.”