Court of Appeal for Ontario

Date: 2018-06-27 Docket: C53272 Judges: Sharpe, Brown and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

William Imona-Russell Appellant

Counsel

Christopher Hicks and Kristin Bailey, for the appellant Leslie Paine, for the respondent

Heard: June 25, 2018

On appeal from the conviction entered on July 13, 2010 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] Mr. Imona-Russell was prosecuted for first degree murder on the theory that he intentionally killed the victim, while committing the offence of sexual assault pursuant to s. 231(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46. He was convicted by a jury. We dismissed his appeal from conviction following oral argument. These are our reasons.

Background

[2] It is not disputed that, on July 8, 2006, Mr. Imona-Russell had sexual contact with the victim and that she died violently in his bed.

[3] The Crown's position at trial was that Mr. Imona-Russell engaged in that sexual contact with the victim while using threats or violence to overcome her resistance, and that he then killed her by stabbing her repeatedly with a pair of scissors. Since the murder and the sexual assault occurred as part of the same single transaction, the Crown called for a first degree murder conviction, pursuant to s. 231(5)(b).

[4] Mr. Imona-Russell testified, offering a different version of events. He claimed that he and the victim had dinner, watched a movie, and had unprotected sex. The sexual intercourse was hurried, which Mr. Imona-Russell self-described as very fast. When they finished, he testified that the victim criticized his performance.

[5] Mr. Imona-Russell testified that the victim's comments caused him to lose control. He was flung into an angry frenzy, grabbed a pair of scissors from his nightstand, and killed the victim by stabbing her nine times – six times in her neck and three times in the side of her body.

[6] Mr. Imona-Russell then disposed of the victim's body and attempted to clean his room. He scrubbed his floor with bleach and purchased new sheets. He put the victim's body in a garbage bag, dragged her outside, and left her next to the garbage. Thankfully, the garbage removal company discovered the victim's body on July 14, 2006 and the police were able to quickly link her death back to Mr. Imona-Russell.

[7] The autopsy found no signs of any defensive wounds on the victim's body. The expert pathologist evidence revealed there to be sperm in the victim's vagina and rectum, consistent with Mr. Imona-Russell's DNA.

[8] Mr. Imona-Russell is HIV positive. The Crown therefore claimed that even if things happened as Mr. Imona-Russell testified, the complainant would not have consented to unprotected sex with Mr. Imona-Russell had he disclosed that he was HIV positive. The Crown argued that any consent the victim may have given to sex that night was therefore vitiated by fraud and that his killing of the victim would still be first degree murder.

[9] The trial judge charged the jury that they could find Mr. Imona-Russell guilty of constructive first degree murder if they found that he used sexual violence, or if they found that he obtained consent by fraud as to his HIV status. The jury found that he committed the offence of first degree murder beyond a reasonable doubt and convicted.

Issues

[10] It is Mr. Imona-Russell's position that murder cannot be classified as first degree murder under s. 231(5)(b) unless the sexual assault predicate offence involved the physical domination of the victim. He argued that physical domination akin to forcible confinement is a required element under s. 231(5). He says that a sexual assault arising from fraudulently obtained consent does not satisfy the physical domination requirement. Thus, Mr. Imona-Russell argued that the trial judge erred by leaving the constructive first degree murder offence with the jury.

[11] In the alternative, Mr. Imona-Russell submitted that the trial judge erred by failing to instruct the jury that they could not find him guilty of first degree murder unless the sexual assault involved the domination of the victim.

[12] Mr. Imona-Russell also argued that the Crown engaged in improper cross-examination, leading to a miscarriage of justice.

Analysis

[13] We do not accept the premise underlying Mr. Imona-Russell's first ground of appeal that "domination" is a distinct element of s. 231(5). In R. v. Paré, [1987] 2 S.C.R. 618, at p. 633, Wilson J. recognized "illegal domination" to be an "organizing principle" of this sentencing classification provision (then s. 214(5)). She did not say that illegal domination is an independently required element. In Paré, Wilson J. used the organizing principle of illegal domination to assist in interpreting the "while committing" requirement. She did not add "domination" to the list of things that must be proved to achieve a first degree murder classification.

[14] Nor does the language of s. 231(5)(b) support Mr. Imona-Russell's position. It imposes no qualifications on when the predicate offence of "sexual assault" will trigger a first degree murder conviction. This court held in R. v. Niemi, 2017 ONCA 720, 355 C.C.C. (3d) 344, at para. 45, that sexual assault has the same meaning under s. 231(5)(b) as it does elsewhere in the Criminal Code. Domination, of course, is not a distinct element of the offence of sexual assault.

[15] Moreover, s. 231(5)'s organizing principle is not confined to physical domination. In Paré, Wilson J. does not speak of physical domination, but more broadly of illegal domination. In our view, sexual assault is by its nature a crime of illegal domination. Justices Moldaver and Abella recently said as much in R. v. Magoon, 2018 SCC 14 at para. 61 when they commented that "All of the offences listed in s. 231(5) involve unlawful domination."

[16] We therefore do not accept Mr. Imona-Russell's first ground of appeal. Accordingly, we reject Mr. Imona-Russell's second ground of appeal based on the trial judge's failure to instruct the jury on the need for domination as well.

[17] We also reject Mr. Imona-Russell's final ground of appeal that the conduct and tenor of the cross-examination by the Crown in this case was so improper and prejudicial that it rendered the trial unfair and resulted in a miscarriage of justice.

[18] To be sure, there were problems during the cross-examination.

[19] It was not proper in this case for the Crown to attempt to pursue the theory that Mr. Imona-Russell tailored his evidence to the disclosure, but the trial judge shut that down.

[20] Nor was it proper for the Crown to confront Mr. Imona-Russell with the claim that he tailored his testimony to the evidence in the case. The trial judge, however, gave a sufficient mid-trial direction to remedy the impropriety. The decision whether to deny a mistrial was for the trial judge to make, and that decision was reasonable and arrived at without error.

[21] The Crown should not have cross-examined Mr. Imona-Russell in a way that implicitly raised the improper suggestion that the hapless clean-up he attempted showed his consciousness of guilt for first degree murder. During trial, Mr. Imona-Russell effectively admitted that he unlawfully but unintentionally killed the victim. His post-offence conduct was as consistent with the crime of manslaughter that he was thereby admitting, as it was with first degree murder. This line of cross-examination was therefore unfair. However, in our view, any prejudice that this threatened to cause to Mr. Imona-Russell was effectively removed by the trial judge's clear jury charge on post-offence conduct, directing the jury not to draw the inference the Crown was inviting.

[22] There were other imperfections in the way the cross-examination was conducted, including the three occasions when the Crown laughed or giggled when questioning Mr. Imona-Russell. In our view, however, the overall conduct and tenor of the cross-examination did not come close to undermining the fairness of the trial, or being so improper as to bring the administration of justice into disrepute.

[23] We therefore dismiss Mr. Imona-Russell's appeal.

Robert J. Sharpe J.A. David Brown J.A. David M. Paciocco J.A.