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PROCEDURE - Trial judge's duties - Charge or directions - Evidence of witnesses

Thursday, October 17, 2019 @ 8:46 AM  

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Appeal by the accused, Adan, from a conviction and sentence for attempted murder. The accused and his friend Johnson were overnight guests at a party hosted by Williams. The following morning, Williams was shot five times following an altercation. He subsequently died prior to trial from an unrelated cause. Williams testified at the preliminary inquiry, stating that he ordered the accused, Johnson and another guest to leave his premises. He testified that Johnson retrieved a gun, passed it to the accused, who shot him several times. The accused testified that Williams pointed a gun at him and threatened him. He testified that he struggled with Williams for the gun and that Williams was shot during the struggle. The accused, Johnson and their friend fled the scene, changing vehicles once. The accused changed his clothes, disposed of the gun, and left town. Police responded, and Williams initially identified Johnson as the shooter before stating it was the accused. At trial, the accused submitted that the shooting was either accidental, or in lawful self-defence. The accused was convicted following a jury trial and sentenced to 11 years' imprisonment. The accused appealed the conviction and the sentence.

HELD: Appeal dismissed. Despite some deficiencies, the trial judge's final instructions regarding the use of the evidence of the accused's post-incident conduct were adequate. The instructions failed to outline the permitted and prohibited uses of the evidence of after-the-fact conduct in reaching a verdict. In addition, the description of the evidence in question failed to mention the failure by the accused and his friends to call 911. The deficiencies did not cause the accused any substantial wrong or result in a miscarriage of justice. The evidence of post-offence conduct was not a predominant feature of the trial and was not linked to the contested issues of the accused's culpability. A more detailed charge would not have been beneficial to the accused. In sentencing the accused, the trial judge did not fail to apply the proportionality principle. The trial judge appropriately balanced the accused's age, 24, and his lack of prior convictions with the use of a restricted firearm to shoot the victim multiple times in his home. The failure to expressly state the proportionality principle was not an error of law or principle. The sentence was not demonstrably unfit. Sentence: 11 years' imprisonment.

R. v. Adan, [2019] O.J. No. 4533, Ontario Court of Appeal, D. Watt, P.D. Lauwers and C.W. Hourigan JJ.A., September 10, 2019. Digest No. TLD-October142019007