



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2019 ONCA 846

DATE: 20191028

DOCKET: C61373

Juriansz, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naanan Williams

Appellant

Michael Dineen, for the appellant

John Patton, for the respondent

Heard: September 19, 2019

On appeal from the conviction entered by Justice John A.
    Desotti of the Superior Court of Justice, sitting with a jury, on January 22,
    2015 and the sentence imposed on November 2, 2015.

Juriansz
    J.A.:

[1]

Before it convicted the appellant of second degree murder, the jury
    asked a question that made apparent it had been misled by Crown counsels
    incorrect description of the
mens rea
required for murder. The trial
    judges attempt to clarify the law was inadequate. Therefore, a new trial is
    necessary.

A.

Facts

[2]

The appellant was convicted of second degree murder for killing his
    uncle, Clifford Riley, in a trial before a judge and jury. He appeals from his
    conviction.
[1]

[3]

On June 21, 2012, the appellant and his friend, Denzel Neron, went to
    two parties where they drank heavily and smoked marijuana. They were
    intoxicated.  They entered an unoccupied building owned by the appellants
    family, in which they found the appellants uncle.

[4]

A fight broke out between the three men. The uncle suffered serious
    injuries and died of blunt force trauma to the chest. The appellant and Neron
    gave differing accounts of how the fight unfolded.

[5]

The appellant testified that his uncle pushed him out of the building
    and a fight ensued. The appellant fell, in part because of his intoxication,
    and his uncle got on top of him. Neron intervened, kicked the uncle, and the
    two continued fighting by the side of the road. The fight eventually broke up,
    and the appellant and Neron walked away. The appellant said his uncle cursed at
    them and called them assholes. However, he was inconsistent about whether his
    uncle shouted at them during the fight or after, when they were walking away.

[6]

According to Neron, he and the appellant found the appellants uncle
    asleep on the floor of the unoccupied building. The appellant woke his uncle,
    demanded he get up, and began pushing him out of the building. The three men
    fought until the appellant and Neron knocked the appellants uncle down. As the
    appellant and Neron were walking away, the uncle sat up and began cursing at
    them, calling them assholes. The appellant jogged back, jumped, and stomped
    on the uncles leg, jump stomped on the uncles chest three times and then on
    his collarbone. The uncle went silent and they left. Neron and the appellant
    rode home on a bicycle with Neron on the handlebars.

[7]

Nerons trial testimony substantially contradicted a police statement he
    gave on June 22, 2012, in which he denied any knowledge of the killing. At
    trial, Neron admitted to lying to the police.

[8]

DNA consistent with that of Neron was on a necklace found near the
    uncles body. Gray Vans brand shoes seized from the appellants residence had a
    blood stain on the shoelace with a DNA profile consistent with that of the uncle.
    An expert qualified in footprint comparisons testified that the shoes soles
    could not be excluded as having created impressions on and around the uncles
    body, including a footprint on his chest that may be linked to the fatal
    injury. The appellant and Neron disagreed as to who wore those shoes at the
    time of the killing.

[9]

A video surveillance camera captured two men walking near the location
    of the fight on the night in question. The video showed two men emerging twice
    from the scene of the fight, corroborating Nerons account that, after they
    began to walk away, the appellant had returned to stomp on the uncle before
    they walked away a second time.

[10]

The next day, the appellant went to see a friend who had been out with
    him the night before. The appellant was crying because his uncle had died. When
    the friend revealed that she had heard that the appellant killed his uncle, the
    appellant shook his head and asked her to do me a solid. He told her he was
    naïve and drunk, and the only evidence the police had on him was a shoe. He
    recounted that he did not remember walking home the night before. An
    acquaintance overheard this conversation and testified that the appellant broke
    down and said, Yeah, I fucked up.

[11]

In text messages to another friend, the appellant said, You didnt see
    anything remember just walked home, Stay solid, and we didn[]t do shit.
    He acknowledged that he told both women not to say anything.

[12]

Both the appellant and Neron were arrested and charged with murder.
    Neron accepted a plea agreement that required him to testify against the
    appellant. He pleaded guilty to assault and to being an accessory after the
    fact to murder. He received a four-month sentence.

B.

Issues on Appeal

[13]

The appellant raises five grounds of appeal, one of which he abandoned
    in advance of the hearing. I would allow the appeal on the first ground and
    find it unnecessary to deal with the other three grounds, which raise issues
    that may not arise on the retrial.

[14]

The appellants main submission is that the trial judge, by failing to
    correct a misstatement of the law by the Crown and by failing to provide clear,
    fulsome answers to the jurys questions, permitted the jury to find him guilty
    of murder without being satisfied he had the subjective foresight that his
    uncle might die as a result of his actions.

C.

analysis

(1)

The Crowns Closing Submissions

[15]

In her closing address to the jury, the Crown incorrectly described the
    state of mind necessary to establish murder. She said:

And when you consider the issue of the intent that Mr. Williams
    would have had to have had, or the mental state that he would have had to have
    had to form the intent to kill,
or that he ought to have known his actions
    would cause death
, or was reckless to whether his actions wouldve caused
    death  I think there is significant evidence to prove that in fact Naanan Williams
    did have the necessary state of mind to know what he was doing, to kill his
    uncle, and to know that his actions in stomping his uncle would kill him,
or
    ought to believe that it would likely cause death, or he just didnt, you know,
    put his mind to it. He was reckless to that, okay.
[Emphasis added.]

[16]

After reviewing additional evidence, she repeated:

[A]ll that, that shows that, that Naanan Williams had the state
    of mind that night, had the intent to know that when he stomped or to 
that
    he ought to have known that when he stomped on Clifford Riley that action was
    likely to cause his death.
[Emphasis added.]

[17]

These were serious misstatements of the law with respect to the
mens
    rea
for murder. The phrase that he knows or ought to know is likely to
    cause death appeared in s. 229(c) of the
Criminal Code
. The Supreme
    Court of Canada declared that language in s. 229(c) unconstitutional in
R.
    v. Martineau
, [1990] 2 S.C.R. 633 and it has recently been repealed: R.S.,
    2019, c. 25, s. 77. The court made clear in
Martineau
that a murder
    conviction cannot rest on any
mens rea

less than subjective
    foresight of death: at pp. 645-46.

[18]

In any event, s. 229(a), not s. 229(c), best applies to the
    circumstances of this case. Section 229(a) provides:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm
    that he knows is likely to cause his death, and is reckless whether death
    ensues or not.

[19]

In
R. v. Cooper
, [1993] 1 S.C.R. 146, at pp. 155-56, the court
    clarified that the
mens rea
for murder under s. 229(a)(ii) of the
Criminal
    Code
requires the Crown to prove beyond a reasonable doubt the accuseds
    (a) subjective intent to cause bodily harm and (b) subjective knowledge that
    the bodily harm is of such a nature that it is likely to result in death.

[20]

Defence counsel did not object and the trial judge did not correct the Crowns
    misstatements immediately. Their effect on the jury and on the fairness of the
    trial must be assessed in the context of the whole trial, and everything the
    jury was told.

(2)

The Trial Judges Instructions

[21]

At the beginning of the trial, the trial judge told the jury it should
    take the law from him. In the course of making this point, he said:

Counsel may also refer to some rules of law to help you
    understand their positions better. It is quite proper for them to do so. What
    counsel say about the law may be correct, but it is my job, as judge, to tell you
    about the law that applies. You must take that law from me.

[22]

In his jury charge, the trial judge gave the jury clear and correct
    instructions on the mental state required for murder. He said:

If you are satisfied beyond a reasonable doubt that Naanan
    Williams unlawfully caused the death of Clifford Riley, you must go onto the
    next question: Did Naanan Williams have a state of mind required for murder?
    The crime of murder requires proof of a particular state of mind for an
    unlawful killing to be murder. Crown counsel must prove that Naanan Williams
    meant either to kill Clifford Riley or meant to cause Clifford Riley bodily
    harm that Naanan Williams knew was likely to kill Clifford Riley, and was reckless
    whether Clifford Riley died or not.

[23]

The trial judge told the jury he would emphasize this instruction by
    repeating it at least half a dozen other times so that the jury got that
    crystal clear in your mind. He did what he said he would. He repeatedly
    emphasized the correct state of mind for murder and told the jury that if they did
    not find that the appellant had that state of mind, their determination should
    be manslaughter.

[24]

However, at this stage, no one, including the trial judge, said anything
    about the Crowns misstatements to the jury that it could convict the appellant
    if he ought to have known his actions would cause death.

(3)

The Jurys Questions

[25]

In the course of its deliberations, the jury asked two questions that
    revealed it was left in confusion by the Crowns closing and the jury
    instructions.

[26]

Three or four hours into its deliberations, the jury posed the question state
    of mind  pre, present and post testimony  which can be used as evidence. The
    trial judge correctly answered the question by instructing the jury that the
    state of mind required was whether the appellant meant to cause Clifford Riley
    bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was
    reckless whether Clifford Riley died or not, or he meant to kill Clifford
    Riley.

[27]

On the morning of the second day of deliberations, the jury asked
    another question that made it obvious it was considering the issue of the
    appellants state of mind in light of the Crowns misstatement of the law. The
    jury sought clarification on the legal meaning of ought to know and reckless
    to the effects of your efforts. The phrase ought to know did not appear in
    any part of the jury charge. Neither counsel nor the trial judge questioned the
    relevance of these terms to a charge of second degree murder. After consulting
    counsel, the trial judge answered the ought to know portion of the question:

There is not any, as far as I am aware, definition from any
    legal context or precedent.  However, ought to know at least piecing that
    together with Blacks Law Dictionary  is a general direction only, but will be
    taken as mandatory if the context requires. Little bit  be under a moral
    obligation, have as a duty, and advised or expected. That is the ought part. The
    know is to possess information, instruction, or wisdom, to perceive,
    apprehend, understand.

[28]

Rather than disabusing the jury of the incorrect standard stated by the
    Crown, this instruction reinforced it. The instruction, in effect, confirmed
    the validity of the Crowns statement and provided the jury with guidance as to
    how to apply the incorrect state of mind in its deliberations.

[29]

The trial judge went on to answer the reckless portion of the jurys
    question. He said:

There is actually a legal direction with respect to reckless
    in a more commonplace expression. So I will give it in the context of which the
    word reckless is used in the charge: saw the likelihood that Clifford Riley
    could die from the injury but went ahead anyway and took the chance. So that is
    the actual formal, legal expression.

[30]

This definition would have been accurate had the trial judge stopped
    there. However, he went on to add:

Then using again the Oxford Dictionary, more expanded version,
    reckless: of a person heedless of consequences of ones actions or of danger,
    incautious, rash, inconsiderate of oneself or another, of an action, behaviour
    characterized as heedlessness or rashness, incautious, careless, wilfully
    careless. That is it. There is no other. There is nothing else that we have
    with respect to those expressions.

[31]

This erroneous instruction was all the more serious because it immediately
    followed the guidance the trial judge had provided about the meaning of ought
    to know. The instruction would have led the jury to understand that it could convict
    the appellant if he ought to have known his uncle would die, or if his
    behaviour met a dictionary definition of reckless that included mere
    carelessness.

[32]

After receiving these instructions, the jury retired at 9:15 a.m. Shortly
    after, the Crown advised the court that she had misstated the law. She alerted the
    court that the jury should not be basing its decision on whether they believed
    that the appellant ought to have known his actions would have resulted in his
    uncles death.

[33]

The jury was recalled at 9:46 a.m. and the trial judge sought to correct
    the misstatement of the law that had been conveyed to the jury and which it was
    evidently considering. The trial judge said:

Ladies and gentlemen, you probably wonder why unceremoniously
    we have brought you back into the courtroom when you have not asked a question.
    It goes back to your previous question, ought to know. There is no such
    definition in the section dealing with second-degree murder. Ought to know is
    not part of your consideration or concern. Any reference to the expression
    ought to know should be struck, deleted from your understanding in terms of
    your deliberations. I say that to you because that expression was used
    unfortunately by Madam Crown Attorney, inadvertently she used the expression
    ought to know. That is not part of the section, all right? So I am asking you
    to delineate, delete, whatever expression you want to do, erase my response to
    the query about ought to know.
Your focus should be on reckless
, which
    is clearly there, and not on that expression. I cannot be more definitive than
    that.  And I am asking you again to disregard that expression. It is not part
    of your deliberations. [Emphasis added.]

[34]

The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m.

[35]

The last instruction was intended to salvage the situation by correcting
    the answer given to the jurys question about ought to know. Unfortunately,
    it did not do so fully and correctly. While the trial judge told the jury, clearly
    and emphatically, that ought to know was not the correct standard for the
mens
    rea

for murder, he was wrong to tell the jury its focus should be
    on recklessness. There are two problems with this instruction.

[36]

The first problem is that, half an hour earlier, the trial judge had
    left the jury with a definition of reckless that included carelessness. It is
    likely the broad dictionary definition he gave the jurors would still have been
    fresh in their minds. Considered in the context of that definition, telling the
    jury its focus should be on recklessness was a misdirection.

[37]

The second problem is that the jury should have been told its proper
    focus should be on whether the appellant intended to cause bodily harm to his
    uncle that he knew was likely to result in his uncles death. As Cory J.
    explained in
Cooper
, at pp. 154-55:

The aspect of recklessness can be considered an afterthought
    since to secure a conviction under this section it must be established that the
    accused had the intent to cause such grievous bodily harm that he knew it was
    likely to cause death. One who causes bodily harm that he knows is likely
    to cause death must, in those circumstances, have a deliberate disregard for
    the fatal consequences which are known to be likely to occur.
That is to say
    he must, of necessity, be reckless whether death ensues or not
. [Emphasis
    added.]

[38]

On appeal, the Crown argues that the trial judges multiple repetitions
    of the correct
mens rea
standard for murder meant that the jury must
    have been properly informed when it began its deliberations. I do not accept
    that submission given the question by the jury and the trial judges inadequate
    answer.

[39]

Questions by the jury give the clearest possible indication of the
    particular problem the jury is confronting:
R.
v.
S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be
    assumed that the jurors have forgotten the original instructions and will base
    their subsequent deliberations on the answer to the question:
S. (W.D.)
,
    at p. 531. The correctness of the original charge cannot excuse an error in the
    answer to the jurys question:
S. (W.D.)
, at p. 530-31.

[40]

In this case the jury repeatedly received correct instructions in the
    main charge. But considering everything the jury was told, I conclude there is a
    real danger that the jury was not left with a proper understanding of the role
    of recklessness in the
mens rea
for murder and that subjective
    foresight of death was required.

D.

Disposition

[41]

The appellants murder conviction cannot be regarded as safe. I decline
    the Crowns invitation to apply the curative proviso under s. 686(1)(b)(iii) of
    the
Criminal Code
. In this case manslaughter, rather than second
    degree murder, was a possible verdict on the Crowns version of the events.

[42]

In conclusion, I would allow the appeal, set aside the conviction, and
    order a new trial.

Released: RGJ OCT 28 2019

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. L.B. Roberts J.A.





[1]
The appellants notice of appeal raises an appeal against sentence, but the
    appellants factum and oral submissions did not include arguments on sentence.
    Given the disposition of this appeal, I regard the sentence appeal as moot.


