



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Imona-Russell, 2018 ONCA 590

DATE: 20180627

DOCKET: C53272

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Imona-Russell

Appellant

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

[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 Crowns 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 victims 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 victims body and attempted to
    clean his room. He scrubbed his floor with bleach and purchased new sheets. He
    put the victims body in a garbage bag, dragged her outside, and left her next
    to the garbage. Thankfully, the garbage removal company discovered the victims
    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 victims body.
    The expert pathologist evidence revealed there to be sperm in the victims vagina
    and rectum, consistent with Mr. Imona-Russells 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-Russells 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-Russells 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-Russells 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-Russells first ground of appeal.
    Accordingly, we reject Mr. Imona-Russells second ground of appeal based on the
    trial judges failure to instruct the jury on the need for domination as well.

[17]

We
    also reject Mr. Imona-Russells 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. Iona-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 judges 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-Russells appeal.

Robert J. Sharpe J.A.

David Brown J.A.

David M. Paciocco J.A.


