COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2013 ONCA 477

DATE: 20130712

DOCKET: C52124

Rosenberg, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Williams

Appellant

Dirk Derstine and Genevieve McInnes, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: June 20, 2013

On appeal from the conviction entered on November 27, 2009 by Justice Alan C.R. Whitten of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on March 29, 2010.

ENDORSEMENT

[1] At the conclusion of oral argument in this appeal, the court indicated that the appeal was dismissed with reasons to follows. These are those reasons.

REASONABLE APPREHENSION OF BIAS

[2] The fact that Whitten J. presided at the appellant’s unsuccessful bail application and then at the trial, almost two years later, did not create a reasonable apprehension of bias. The trial judge’s expression of opinion at the bail hearing as to the strength of the Crown’s case was justified by the record before him and, indeed, was later borne out by the evidence called at the trial. The trial judge was not the trier of fact in this case and was not called upon to make any findings of credibility.

POST-OFFENCE CONDUCT

[3] In the initial part of the charge, the trial judge made it clear that the jury was not to use the evidence of flight and discarding of items associated with the killing to determine the level of culpability because they were equally consistent with the appellant trying to avoid the consequences of participation in manslaughter as with trying to avoid the consequences of participation in first or second degree murder. The trial judge returned to that issue when he gave a more general direction on intent, but again referred the jury back to the limiting instruction he had given with respect to evidence that was equally consistent with manslaughter as murder. The direction was as follows:

So, to determine his state of mind, what he meant to do, you should consider all of the evidence; consider what he did or did not do; how he did or did not to it; and what, if anything, he said or did not say. You should look at Omar Williams’ words and conduct before, at the time, and after the unlawful act, to the extent that I have confined that, when I talked about after-the-fact conduct.

Because as I explained to you, things like flight and discarding evidence are equally consistent with manslaughter, as they are with respect to first and second. All of these things, and the circumstances in which they happen, may shed light on Omar Williams’ state of mind at the time. They may help you decided what he meant or did not mean to do. [Emphasis added.]

[4] While the impugned instruction might have been somewhat clearer, we are satisfied that, because of the emphasized passage set out above, the jury would understand the limitations on the use that could be made of the evidence of flight and discarding of items. This case is different from R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359, which did not repeat a reference to an earlier limiting instruction and merely told the jury that they could consider “anything Ms. McIntyre did or said afterwards”.

[5] The appellant submits that the trial judge committed the so-called Hall error: see R. v. Hall, 2010 ONCA 724 at paras. 141-144. However, as the court made clear in Hall itself, this error standing alone would not constitute reversible error: see at para. 146.

INTENT FOR MURDER

[6] On several occasions, when discussing post-offence conduct, the trial judge resorted to an incorrect summary of the intent for murder: “intent to kill or cause bodily harm likely to kill”. However, the trial judge had earlier given the correct instruction and, more importantly, in the answer to the jury’s question about the “state of mind required for murder”, the trial judge gave the jury the complete and accurate definition of the intent required:

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Omar Williams either meant to kill Shaheen Sherzady, or meant to cause Shaheen Sherzady bodily harm that Omar Williams knew was likely to kill Shaheen Sherzady, and was reckless whether Shaheen Sherzady died or not.

[7] Accordingly, we are satisfied that earlier incorrect instructions would not have affected the jury’s deliberations.

Unbalanced Charge

[8] We agree with the appellant that the trial judge’s earlier directions to the jury, when he was relating the evidence to the elements of first and second degree murder, lacked balance. We are particularly concerned with the trial judge’s use of rhetorical questions. As this court said in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481, at para. 146:

Rhetorical questions of that nature may have a place in the Crown's closing address. They should be avoided in the jury charge, lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity.

[9] There are several reasons, however, why we are satisfied that no substantial wrong of miscarriage of justice occurred. First, the trial judge gave a complete and fair review of the evidence that included the pieces of evidence relied upon by the appellant in support of the defence theory. Second, the most problematic aspects of the charge came when the trial judge reviewed the evidence in support of first degree murder. However, the jury acquitted the appellant of first degree murder. Finally, the trial judge fully reviewed the position of the defence, and included a reference to the evidence supporting the defence theory and the defence position as to the inferences to be drawn from that evidence.

[10] Accordingly, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[11] The appellant also appealed from the order of the judge increasing the period of parole ineligibility to 14 years. The appellant submits that the trial judge erred in referring to the appellant as being heavily involved in drug trafficking and in relying upon planning of the offence, given that the appellant was acquitted of first degree murder.

[12] We are satisfied that the trial judge did not make any errors in principle. The evidence was overwhelming that this offence was drug-related. The deceased was a known drug dealer and, after the brutal beating and shooting of the deceased, the appellant returned to the deceased’s apartment to steal drugs. There was substantial evidence that a robbery was planned. The appellant and his accomplice brought a pair of pliers, a gun, flex cuffs, and pepper spray to assist in committing the robbery. They clearly anticipated they would have to overcome resistance from the deceased. The killing was particularly brutal. The deceased was not only shot but beaten about the head with the gun and the pliers some 25 times. The attack took place in the common spaces of an apartment building and was a brazen attack that could have endangered the lives of other residents and visitors to the building.

[13] Given the substantial deference owed to a trial judge in setting the parole eligibility, we have not been persuaded that there is any ground to interfere with the sentence. See R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227.

[14] Accordingly, the appeal from the period of parole ineligibility is dismissed.

“M. Rosenberg J.A.”

“R.J. Sharpe J.A.”

“E.E. Gillese J.A.”