



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 appellants unsuccessful bail
    application and then at the trial, almost two years later, did not create a
    reasonable apprehension of bias. The trial judges expression of opinion at the
    bail hearing as to the strength of the Crowns 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
    jurys 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 jurys deliberations.

Unbalanced Charge

[8]

We agree with the appellant that the trial judges 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
    judges use of rhetorical questions. As this court said in
R. v. Baltovich
(2004), 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 deceaseds 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] 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.


