COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adan, 2019 ONCA 709

DATE: 20190910

DOCKET: C62815

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rashid Ali Adan
and Anthony Fitzroy
    Johnson

Appellant

Nathan Gorham, for the appellant

Philippe Cowle, for the respondent

Heard: May 21, 2019

On appeal from the conviction entered on October 1, 2014
    and the sentence imposed on February 18, 2015 by Justice Joseph R. Henderson of
    the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

One evening in June, Peter Williams had some guests. Among them were his
    sister, Beatrice, and her husband, Vinnie. The other guests were Beatrices friends,
    none of whom Peter Williams knew well.

[2]

Some of the guests stayed overnight in Peter Williams apartment. Rashid
    Adan (the appellant) was one of them. Anthony Johnson was another.

[3]

The following morning an argument ensued. Then there were gunshots.
    Several gunshots. All of them fired from the same gun. A gun in the hand of the
    appellant.

[4]

Five bullets struck Peter Williams. He survived the shooting, only to
    die later from unrelated causes.

[5]

A jury found the appellant guilty of attempted murder.
[1]
The trial judge sentenced the appellant to a term of imprisonment of 11 years.

[6]

The appellant appeals both conviction and sentence. These reasons
    explain my conclusion that both appeals fail and should be dismissed.

The Background Facts

[7]

The appellant advances a single ground of appeal against conviction. He
    alleges the trial judge erred in his instructions on the use jurors could make
    and, must not make, of evidence of after-the-fact conduct. To appreciate the
    nature of this claim and how that evidence fit into the trial mosaic, it is
    helpful to begin with the events surrounding the shooting.

[8]

The principal sources of evidence about the shooting came from two
    people: Peter Williams and the appellant. Williams died before trial. His
    testimony, given at the co-accused Johnsons preliminary inquiry,
[2]
was admitted as evidence at the joint trial of the appellant and Johnson. The
    appellant was the only defence witness at trial.

The Principals

[9]

Peter Williams and his sister Beatrice lived in different units in the
    same apartment building. Peter Williams lived on a disability pension because
    of several different physical infirmities. Sometimes, he used a cane to assist
    him in walking. He lived alone in his apartment and was described as a neat
    freak.

[10]

Beatrice
    introduced Peter Williams to her friend, Anthony Johnson. Johnson had no place
    to live. Williams agreed to let Johnson stay at his apartment and to help
    Johnson obtain social assistance. To further Johnsons pursuit of social
    assistance, Williams provided Johnson a rental receipt and loaned him $400.

[11]

The
    appellant and Johnson were friends. They had plans to meet on the weekend of
    the shooting. At Beatrices invitation, they travelled together and attended
    the gathering at Peter Williams apartment. Johnson introduced Peter Williams
    to the appellant that night.

The Gathering

[12]

The
    guests at Peter Williams apartment included his sister, Beatrice; her husband,
    Vinnie; the appellant; Johnson; and Talia Thomas, a young woman whom Johnson
    had invited. The group watched a basketball game on television.

The Party Breaks Up

[13]

Around
    4:00 a.m., Peter Williams asked his guests to leave. Beatrice and Vinnie
    returned to their own apartment. But the others remained. Johnson and Talia
    Thomas slept in Williams bedroom. Williams and the appellant stayed in the
    living room.

The Morning After

[14]

By
    shortly after 7 oclock the same morning, Peter Williams was really pissed
    that the remaining guests  the appellant, Johnson, and Ms. Thomas  were still
    in his apartment. He wanted them out.

[15]

Peter
    Williams made himself a cup of coffee, then went to his sisters apartment to
    enlist her help to get his guests out of his apartment. According to Williams,
    his sister declined to help him.

[16]

Beatrice
    recalled it differently. She said Peter Williams was agitated when he arrived
    at her apartment. He wanted his guests, to whom he ascribed a racial epithet,
    out of his apartment. So Beatrice accompanied Williams back to his apartment. Beatrice
    awakened Johnson and explained that Williams wanted them to leave. She then returned
    to her own apartment; Williams stayed in his.

[17]

A
    few moments later, Peter Williams was back at Beatrices apartment. His guests
    had not left. So Beatrices husband, Vinnie, went to Williams apartment. When he
    came back, Vinnie told Williams the three guests were preparing to leave. And
    Peter Williams returned to his own apartment.

[18]

Talia
    Thomas and the appellant confirmed Beatrices attendance at Peter Williams
    apartment that morning and her requests that they leave. Ms. Thomas left first.
    Johnson went into the bathroom. The appellant waited in the apartment so that
    he could also use the bathroom before he and Johnson left.

The Shooting of Peter Williams

[19]

Two
    different versions of the shooting emerged from the evidence of the only two
    witnesses who testified about it: Peter Williams and the appellant.

[20]

According
    to Peter Williams, when he returned to his apartment, he told all three who
    remained  the appellant, Johnson and Ms. Thomas  you all fucking got to go.
    He spoke to them, he said, in a normal tone of voice. Ms. Thomas left promptly.
    The appellant and Johnson remained.

[21]

Peter
    Williams recalled that Johnson grabbed a gun from a bag and threw it to the
    appellant who started shooting at Williams. This began about 30 seconds after
    Williams had returned to his apartment. Williams heard about 8-10 shots,
    followed by a click, click sound, which Williams associated with the gun
    being empty. He described the gun as a 9mm handgun, fully loaded, with the
    safety off. Several shots struck him.

[22]

The
    appellants version differed significantly from that of Peter Williams.

[23]

According
    to the appellant, while he was waiting to use the washroom, the appellant looked
    up and saw Peter Williams holding a gun. Williams said, I am going to fuck you
    up. The appellant rushed Williams and wrestled with him, trying to get control
    over the gun.

[24]

The
    appellant managed to grab the gun from Williams but Williams restrained him
    with a bear hug. To free himself of Williams grip, the appellant struck
    Williams on the back repeatedly with the hand in which he was holding the gun.
    He did not intend to shoot the gun, much less to kill Williams. Williams said,
    You fucking asshole, you shot me, get the fuck out of here. The appellant was
    unable to say when during the struggle the gun discharged.

The Flight

[25]

The
    appellant and Johnson ran out of the apartment. Johnson and the appellant got
    into a cab; Ms. Thomas joined them. They travelled only a short distance until
    Johnson saw someone across the street whom he knew. They left the cab, got into
    another vehicle, and went to the apartment of a woman in Hamilton. There the
    appellant changed his pants and got rid of the gun. Johnson also changed his
    clothes. The appellant told Johnson that Peter Williams was alright after
    Johnson asked what had happened. The appellant, Johnson, and Ms. Thomas then
    took a cab to the GO Station in Hamilton. Each returned to Toronto separately.

The Aftermath

[26]

Peter
    Williams recalled that after the shooting stopped, Johnson and the appellant
    ran out of the apartment. Beatrice arrived. She had her cellphone with her. She
    picked up some shell casings and left. Williams called his girlfriend and asked
    her to call 911. She did so.

[27]

Beatrice
    remembered the events differently. Peter Williams called her and told her that
    he had been shot. Beatrice rushed upstairs, entered her brothers apartment and
    called 911 from there. She denied that she did not want to call emergency
    assistance.

The 911 Calls

[28]

A
    911 call-taker described three calls about the shooting. The first, from the
    victim, reporting that he had been shot four times. He then hung up. The
    operator called back. The second call was equally brief and ended when the
    victim hung up a second time. The third call, also initiated by the operator,
    involved Beatrice. The operator heard someone in the background mention 9mm.

The Police Response

[29]

When
    police responded to the 911 call, they found Peter Williams sitting on a couch
    near the balcony door of his apartment, smoking a cigarette. The only blood
    visible in the apartment was in the area where Williams was sitting. Williams initially
    told police Johnson was the shooter but later told police that Johnson passed
    the gun to his buddy who fired the shots that struck him.

The Scene and the Forensic Evidence

[30]

In
    Peter Williams apartment, police found seven spent shell casings, all fired
    from the same 9mm gun, and located three projectiles near the balcony door.
    Hospital staff found four projectiles in Peter Williams body but did not
    remove them for medical reasons. All the projectiles in the apartment were
    located close to the area of the couch where Williams had been sitting when
    police arrived. All seven spent shell casings were located by the entrance door
    to the apartment, not by the balcony door or couch where Williams was sitting.
    There were no signs of a struggle.

[31]

Peter
    Williams suffered five injuries from gunshots. One bullet struck and fractured
    his arm. Other bullet wounds were in the middle of his back; his left shoulder
    blade; the left flank area near his kidney; and his left buttock.

The Positions of the Parties at Trial

[32]

At
    trial, the Crown contended that a reasoned assessment of the evidence given by
    Peter Williams and the appellant, as well as the physical evidence at the
    scene, established the appellants guilt of attempted murder.

[33]

The
    defence argued the evidence failed to establish, beyond a reasonable doubt,
    that the appellant intended to kill Peter Williams. Instead, the evidence revealed
    the shooting was either accidental or in lawful self-defence.

THE APPEAL FROM CONVICTION

[34]

The
    appellant raises a single ground of appeal. He challenges the correctness and
    adequacy of the trial judges final instructions on the permitted and
    prohibited use of evidence of the appellants after-the-fact conduct.

The Essential Background

[35]

Instructions
    necessary to prevent a jury from mishandling of evidence of after-the-fact conduct
    are case-specific. Whether a trial judges instructions were sufficient depends
    on the significance of the nature of the conduct involved; the use made of the
    evidence at trial; the instructions given about its use; and the positions of
    the parties about the adequacy of those instructions. Some background is
    necessary to evaluate the claim.

The Evidence of After-the-Fact Conduct

[36]

In
    this case, the appellant and co-accuseds after-the-fact conduct consists
    primarily of evidence of their acts or omissions:

i.

failure to render assistance to Peter Williams or summon assistance to
    treat his obvious injuries;

ii.

flight from the scene;

iii.

changes of clothing; and

iv.

disposal of the weapon used in the shooting.

[37]

Williams
    had suffered several gunshot wounds. Blood was plainly visible on him and
    around the couch on which he sat. Neither the appellant nor Johnson rendered
    any assistance to Williams, called or attempted to call 911, or summoned his
    sister whom Johnson well knew. Instead, as soon as the shooting stopped, they
    fled Williams apartment, first in a cab then in another vehicle, to a safe
    house where each changed and disposed of his previous clothes and, in the
    appellants case, of the gun used in the shooting, before continuing their
    flight to another city.

The Pre-Charge Conference

[38]

During
    the pre-charge conference, the trial Crown indicated that she was relying on
    the evidence of after-the-fact conduct. She described the evidence on which she
    relied but did not explain the issue or issues to which the evidence was
    relevant.

[39]

The
    appellants trial counsel made no submissions about evidence of after-the-fact
    conduct. He explained that his defence had three prongs:

i.

the evidence, taken as a whole, did not prove beyond a reasonable doubt
    that the appellant intended to kill Peter Williams;

ii.

the shooting was accidental and thus did not attract liability for
    either offence charged; and

iii.

the shooting was not unlawful because the shots were fired in lawful
    self-defence.

Trial counsel did not want the claim of self-defence to
    be over-emphasized in the charge. He made no submissions about evidence of
    after-the-fact conduct.

[40]

Counsel
    for the co-accused pointed to the unreliable nature of Peter Williams evidence
    and relied on the appellants testimony as a basis for his acquittal. He also
    sought instructions about the absence of any motive on Johnsons part and the
    applicability of the principles in
W. (D.)
to Johnsons case.

[41]

The
    trial judge characterized the evidence of after-the-fact conduct as a very
    small part of this case. He did not want to instruct the jury at length about
    evidence of after-the-fact conduct because of its minor role in the Crowns
    case. His instruction, he said, would be brief and balanced.

[42]

No
    one objected to the trial judges proposal.

The Closing Addresses of Counsel

[43]

In
    his closing address, the appellants trial counsel said nothing about the
    evidence of after-the-fact conduct or how jurors could consider it in reaching
    their verdict. Counsel focused his submissions on what he said were significant
    frailties in Peter Williams testimony, only including a brief reference to the
    fact, but not the substance, of the appellants testimony. He asked the jury to
    return verdicts of not guilty on both counts on any or all of the three
    discrete, but related, bases:

i.

the appellant was not guilty of attempted murder because there was no
    evidence he intended to kill Peter Williams;

ii.

the appellant was not guilty of either offence charged because the
    shooting was an accident; or

iii.

the appellant was not guilty of either offence charged because the
    shooting was in lawful self-defence.

He did not refer to evidence of after-the-fact conduct.

[44]

Trial
    counsel for the co-accused Johnson relied on the appellants evidence that he
    (Johnson) was in the washroom when the shooting occurred, thus could not be
    said to have aided or abetted the appellant as the shooter. Counsel also
    attacked the credibility of Peter Williams and the reliability of his account
    of the shooting.

[45]

In
    her closing address, the trial Crown analyzed Peter Williams and the
    appellants evidence given by the principals and asked the jury to accept Williams
    version of the critical events, highlighting its congruence with the physical
    findings at the scene.

[46]

Unlike
    defence counsel, the Crown did refer to some of the evidence of after-the-fact
    conduct but did so in a series of rhetorical questions about the co-accuseds liability.

The Charge to the Jury

[47]

After
    explaining the difference between direct and circumstantial evidence, the trial
    judge turned to one kind of circumstantial evidence, which he termed evidence
    of post-offence conduct. He began his instructions:

It is what I could call evidence of post-offence conduct. That
    is, evidence of what a person said or did after an offence was alleged to have
    been committed, is called evidence of post-offence conduct. To be clear, what a
    person said or did after an offence was committed may indicate that he acted in
    way which, according to common sense and human experience, is consistent with
    the conduct of a person who committed the offence. That is, it may be
    circumstantial evidence of the offence being committed. You need to consider whether
    it is consistent with the conduct of a person who committed the offence, and
    also consider whether its inconsistent with the conduct of someone who did not
    commit the offence. There may be an explanation, an innocent explanation, for
    what the accused said or did after the alleged offence.

[48]

After
    a brief description of the evidence of post-offence conduct  leaving the
    scene, changing clothes, and disposing of the gun  the trial judge instructed
    the jury about how to use this evidence:

Im going to suggest that you consider this post offence
    conduct with a two-step procedure. First, you need to make a finding of fact
    and decide what the accused actually did. You need to come to some conclusion
    based on what evidence you accept as to what occurred post offence. And,
    second, if you find that the accused actually did what they are alleged to have
    done, consider next whether this was because the accused was conscious of
    having committed the offence or for some other reason. That is, if you find the
    accused actually did what they are alleged to have done, you must be careful
    not to immediately conclude they did it because they were conscious of having
    committed the offence. Defence counsel would say to you that the actions of the
    accused in this case after the offence was committed, probably had much to do
    with the fact that these two accused were scared or fearful. There had been an
    argument, a handgun had been pulled by someone; they had just been through a
    very unusual experience. Defence counsel will suggest that explains their post
    offence conduct. If you do find that what the accused did afterwards was
    because they were conscious of having done something, you may consider that
    evidence together with all of the other evidence in reaching your verdict.

[49]

Counsel
    did not object to the charge on this issue.

The Arguments on Appeal

[50]

The
    appellant argues that three errors put the trial judges instructions beyond
    the forgiveness extended by s. 686(1)(b)(iii).

[51]

First,
    the appellant says the trial judge failed to instruct the jury on how the
    evidence of after-the-fact conduct must not be used. He submits that when
    evidence of limited admissibility, like evidence of after-the-fact conduct, is
    admitted in a criminal jury trial, the trial judge must explain not only how
    the jury may use the evidence, but also how it must not use the evidence.

[52]

The
    appellant accepts that evidence that the appellant fled from the scene and
    disposed of the gun was relevant and admissible to rebut the claim of
    self-defence. But, the appellant argues, this evidence was not relevant or
    admissible in proof of an intention to kill, an essential element of the count
    of attempted murder. It was incumbent on the trial judge to instruct the jury
    about the permitted and prohibited use of this evidence. The trial judges
    failure to do so, in the appellants submission, constitutes non-direction
    amounting to misdirection and requires a new trial.

[53]

Second,
    the appellant says the trial judge failed to caution the jury against the
    danger of overvaluing the probative force of this evidence. He submits that although
    evidence of after-the-fact conduct is
not
subject to special evidentiary rules, courts have repeatedly recognized the
    need to consider the reception of this evidence with caution because of a
    significant discrepancy between its apparent and actual probative value. This,
    the appellant submits, signals the need for an express caution about this
    potential disparity. But instead, the trial judge invited the jurors to make
    unrestricted use of this evidence if they found that what the appellant and
    co-accused did after the shooting was because they were conscious of having
    done something. And, the trial judge failed to caution the jury that this
    evidence may appear to be more probative than it actually is if analyzed
    properly.

[54]

Third,
    the appellant says the trial judge failed to give adequate instructions on
    other available explanations for the conduct, such as shock or panic.

[55]

The
    respondent makes three submissions to challenge the appellants claim of
    prejudicial error.

[56]

First,
    the respondent accepts that when evidence of after-the-fact conduct is
    admissible for one purpose but not for another, the trial judge must so
    instruct the jury about its permitted and prohibited use. But no word formula
    is mandatory. Substance controls, not form. The adequacy of the instruction is
    determined by a functional approach: was the message delivered?

[57]

The
    respondent submits that evidence of after-the-fact conduct was relevant to the
    appellants state of mind because it made Peter Williams account of the
    shooting more likely than that offered by the appellant. A proper instruction,
    therefore, would have linked it to rebuttal of self-defence
and
proof
    of state of mind. Such an instruction would have been of no benefit to the
    appellant. The unqualified nature of the instruction given was not helpful to
    the jury. Nor was it prejudicial to the appellant. It attracted no objection
    from two experienced defence counsel.

[58]

Second,
    the respondent reminds us that, like any item of evidence, evidence of
    after-the-fact conduct must be relevant, material, and not offend any
    exclusionary rule. The assessment is case-specific; there are no bright line or
per se
rules. The evidence may be relevant and admissible to assist in
    proof of a required state of mind, to rebut an available defence and thus to
    distinguish between or among levels of culpability. As a single item of
    evidence, it need not be conclusive of the inference its proponent seeks to
    have the trier of fact draw from it. Its strength derives from the nature of
    the conduct involved, the positions of the parties and the totality of the
    evidence. That evidence of after-the-fact conduct may support a range of
    inferences does not render the evidence irrelevant or inadmissible.

[59]

Third,
    the respondent says the instructions were well tailored to the live issues
    raised at trial; properly balanced to avoid overcomplication and the appearance
    of significance that outpaced this evidences role in proof of guilt; and
    attracted no objection from any counsel.

The Governing Principles

[60]

Two
    sources of principle inform our assessment of this ground of appeal. One, those
    which govern the nature and scope of appellate review of jury instructions, are
    of general application. The other, those which consider evidence of
    after-the-fact conduct, more particularly the content of jury instructions
    about its use, are of more specific application.

Appellate Review of Jury Instructions

[61]

Review
    of jury instructions requires a functional approach. We ask whether the charge,
    as a whole, enabled the trier of fact to decide the case in conformity with the
    governing legal principles and the evidence adduced at trial. And we examine an
    alleged error in the context not only of the entire charge but also in the
    context of the trial as a whole:
R. v. Calnen
, 2019 SCC 6, 374 C.C.C.
    (3d) 259, at para. 8;
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581 at
    para. 39;
R. v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32;
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 32, 41.

[62]

Jury
    instructions ought not be subject to endless dissection, minute scrutiny and
    criticism in the manner of an examination by a forensic pathologist to
    determine the cause of death. It is the overall effect of the instructions that
    matters, not individual word choice or the sequence of instructions followed:
Araya
,
    at para. 39, citing
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 at
    paras. 30, 31. The functional approach requires us to ask whether the jury was
properly
instructed, not whether it was perfectly instructed:
Calnen
, at para.
    9;
Araya
, at para. 39;
Jacquard
, at para. 62..

[63]

An
    important factor in appellate review of the adequacy of jury instructions is
    the position of trial counsel, in particular, whether counsel objected to the
    charge on the issue raised on appeal. The failure to object is not decisive. A
    failure to object does not make whole what is otherwise an error. But a failure
    to object is a factor warranting consideration on appellate review. Its influence
    is a variable, not a constant. A failure to object to an instruction later
    advanced as erroneous before a reviewing court may say something about the
    overall accuracy of the instructions, the fairness of the charge, and the
    seriousness of the alleged misdirection:
Calnen
, at paras. 38-40;
Daley
,
    at para. 58;
Jacquard
, at para. 38;
R. v. Royz
, 2009 SCC 13,
    [2009] 1 S.C.R. 423, at para. 3.

Evidence of After-the-Fact Conduct

[64]

Evidence
    of after-the-conduct includes evidence of what an accused said and did after
    the offence was allegedly committed. Because it takes in a vast array of
    circumstances, its
legal
treatment in the chain of proof is highly context and fact-specific:
R. v.
    Calnen
, 2019 SCC 6, 374 C.C.C. (3d) 259
,
at para. 106
per
Martin J. (dissenting, but not on this point).

[65]

Just
    like other types of evidence, evidence of after-the-fact conduct is received if
    it is relevant, material, not contrary to any applicable admissibility rule and
    its probative value exceeds its prejudicial effect:
Calnen
, at para.
    107

per

Martin J. (dissenting, but not on this point).

[66]

Relevance
has to do with the relationship between the item of evidence and the fact its
    proponent seeks to establish by its admission. Relevance is assessed in the
    context of the other evidence adduced, the case as whole, and the positions of
    counsel. Evidence is relevant if, as matter of everyday experience and common
    sense, it makes the fact for which it is tendered slightly more or less
    probable than it would be without the evidence. There are no
per se
or
    bright line rules:
Calnen
, at para. 112
per
Martin J.
    (dissenting, but not on this point);
R. v. Luciano
, 2011 ONCA 89, 267
    C.C.C. (3d) 16, at paras. 204-206.

[67]

Evidence
    of after-the-fact conduct is circumstantial evidence and, like all
    circumstantial evidence is all about inferences grounded on logic, common sense,
    and human experience. Accordingly, a single piece of circumstantial evidence may
    sponsor a range of inferences but that does not nullify it as a means of proof or
    render it irrelevant:
Calnen
, at para. 112

per

Martin
    J. (dissenting, but not on this point);
Luciano
, at para. 205. In most
    instances, it is for the trier of fact to choose the inference it will draw
    from the array of possibilities:
Calnen
, at para. 112
per
Martin
    J. (dissenting, but not on this point), citing
R. v. Smith
, 2016 ONCA
    25, 333 C.C.C. (3d) 534, at para. 78.

[68]

Materiality
is a legal concept. Evidence is material if it is offered to prove a fact in
    issue, as determined by the allegations in the indictment and the law governing
    the proceedings:
Calnen
, at para. 109
per

Martin J.
    (dissenting, but not on this point);
Luciano
, at para. 207. Material
    issues at a trial are those dealing with the essential elements of the offences
    charged, the modes of participation relied upon, and the defences or justifications
    in play.

[69]

Evidence
    of after-the-fact conduct relevant to prove fault or to distinguish between
    different levels of culpability is material:
Calnen
, at para. 119
per

Martin J. (dissenting, but not on this point);
R. v. Rodgerson
,
    2015 SCC 38, [2015] 2 S.C.R. 769, at para. 20;
R. v. Jackson
, 2016
    ONCA 736, 33 C.R. (7th) 130, at para. 20. It may also be relevant to another
    material issue  the rebuttal of a defence, justification, or excuse in play at
    trial  as for example, self-defence, which renders conduct lawful, thus not
    attracting criminal liability, or accident;
Calnen
, at para. 114

per

Martin J. (dissenting, but not on this point);
R. v. McLellan
, 2018
    ONCA 510, 362 C.C.C. (3d) 183 at para. 56;
R. v. Adamson
, 2018 ONCA
    678, 364 C.C.C. (3d) 41 at para. 63.

[70]

Evidence
    of after-the-fact conduct should be viewed as a whole, in light of all the
    evidence presented at trial. Alternate explanations for after-the-fact conduct
    do not render the evidence irrelevant. Only where the overall conduct and
    context is such that it is no longer possible to choose between the available
    inferences as a matter of logic, common sense, and human experience, is relevance
    lost:
Calnen
, at para. 133
per

Martin J. (dissenting,
    but not on this point);
McLellan
, at paras. 47, 49 citing
R. v.
    Moffit
, 2015 ONCA 412, 326 C.C.C. (3d) 66, at para. 37, leave to appeal
    refused, [2015] S.C.C.A. No. 465.

The Principles Applied

[71]

Despite
    some deficiencies in the trial judges instruction on the evidence
    after-the-fact conduct, I would not give effect to this ground of appeal.

[72]

To
    determine the nature and extent of any errors or omissions in the instructions,
    it is essential to examine precisely what the trial judge said, or failed to
    say, about how the jury could use evidence of post-offence conduct in reaching
    its verdict. By testing these instructions against what is required by the
    controlling authorities, we are able to identify the nature and extent of any
    errors or omissions, then proceed from their identification to assay their
    effect on the verdict reached at trial.

[73]

After
    instructing the jury about direct and circumstantial evidence, the trial judge
    turned to evidence of after-the-fact conduct. He described this evidence as a kind
    of circumstantial evidence and highlighted the need for a link between the
    after-the-fact conduct and the offence. The trial judge told the jury to
    consider whether the conduct was consistent with the conduct of someone who had
    committed the offence and inconsistent with the conduct of a person who did not
    commit the offence, or whether there was an innocent explanation.

[74]

The
    trial judge described the evidence of after-the-fact conduct as:

i.

flight from the scene;

ii.

change of clothes; and

iii.

disposal of the gun.

He then invited the jury to follow a two-step approach to
    consider this evidence. The first step involved a finding of what the appellant
    and co-accused actually did after the shooting. And the second, only reached in
    the event of a positive finding at the first step, required the jurors to
    consider whether appellant and co-accused acted because they were conscious of
    having committed the offence. He then summarized the alternative explanations
    for the conduct advanced by defence counsel and concluded

If you do find that what the accused did afterwards was because
    they were conscious of having done something, you may consider that evidence
    together with all the other evidence in reaching your verdict.

[75]

The
    instructions included several key elements: a caution advising jurors not to
    immediately conclude from a finding that conduct occurred that it happened
    because the appellant and co-accused had committed the offence; a requirement
    that the jurors consider alternate explanations, such as fear and panic, before
    concluding that the conduct was attributable to consciousness of having
    committed the offence; and a direction that the evidence could only be used in
    reaching their verdict if the conduct and consciousness of having committed the
    offence as the cause of the conduct had been established.

[76]

But
    these instructions also had two deficiencies.

[77]

First,
    they failed to spell out the permitted and prohibited uses of the evidence of
    after-the-fact conduct. The trial judge did not identify the specific purpose
    for which the jury could use the evidence of post-offence conduct in reaching
    its verdict. Nor did he tell the jury about any purpose for which the evidence
    could not be used.

[78]

Second,
    the trial judges description of the evidence of after-the-fact conduct was
    underinclusive. It contained no reference to the appellant and co-accuseds
    failure to assist the victim, as, for example, by rendering actual assistance,
    calling 911 or reporting the shooting to the victims sister whom they knew
    lived in the same apartment building.

[79]

These
    deficiencies, however, did not cause the appellant any substantial wrong or result
    in a miscarriage of justice.

[80]

There
    were two contested issues at trial.

[81]

The
    first required the jury to determine whether the shooting of Peter Williams
    occurred in circumstances that attracted criminal liability. This required the
    jury to consider two competing versions of the events, the defence of accident
    and the justification of self-defence. The second issue, which only required
    decision if the jury found the shooting culpable, was whether the appellant
    intended to kill the victim.

[82]

The
    appellant was not prejudiced trial judges failure to explicitly identify the
    permitted and prohibited uses of this evidence of after-the-fact conduct. The
    evidence was relevant to two material issues at trial. It tended to rebut the appellants
    evidence that the shooting was either accidental or in lawful self-defence. It
    was also relevant on the issue of intent, in particular, the intent to kill. It
    is difficult to see how the failure of the trial judge to particularize the
    permitted uses of this evidence caused the appellant any prejudice. In these
    circumstances, it is equally difficult to fathom a prohibited use that could
    have formed the subject-matter of an instruction. There was no dispute about
    who shot Peter Williams. The relevance of the evidence of post-offence conduct
    to the appellants state of mind had the ineluctable effect of distinguishing
    between levels of culpability and its relevance to the defences advanced helped
    to establish culpability for the shooting.

[83]

Nor
    was the appellant prejudiced because of the underinclusive description of the
    evidence of after-the-fact conduct. The evidence the trial judge failed to
    mention  that the appellant did not render or summon assistance for Peter
    Williams after shooting him  was relevant to, and admissible on, the issue of
    the appellants state of mind, in particular, his intent to kill:
R. v.
    Campbell
, 2018 ONCA 837, 366 C.C.C. (3d) 346 at para. 12.

[84]

Further,
    as the trial judge observed, evidence of post-offence conduct was not a
    predominant feature of the appellants trial. The case was mostly about the
    circumstances of the shooting, not what the appellant and the co-accused did
    later. The evidence of after-the-fact conduct was not even prominent in
    rebuttal of the claims of accident and self-defence. And it received only a
    passing mention in trial counsels closing submissions, leaving it unlinked to
    any contested issue at trial.

[85]

Finally,
    not only was there no objection from either experienced defence counsel to the
    inclusion or substance of the after-the-fact conduct instruction, but counsel
    made a concerted effort to ensure that this evidence was not accorded a
    prominent place or detailed elaboration in the charge.

[86]

This
    was not a perfect charge. Nor need it have been. But it was adequate and
    consistent with the under the radar approach trial counsel adopted. A more detailed
    charge would not have been beneficial to the appellant. Nothing said or left
    unsaid caused this appellant any substantial wrong or resulted in a miscarriage
    of justice.

THE APPEAL FROM SENTENCE

[87]

The
    trial judge sentenced the appellant to a term of imprisonment of 11 years on
    the conviction of attempted murder. The appellant seeks to appeal this sentence
    on the ground that the trial judge failed to apply the fundamental principle of
    sentencing  proportionality.

The Background

[88]

The
    circumstances of the appellant, the positions on sentence advanced at trial,
    and the trial judges provide the background necessary to address the sentence
    appeal.

The Circumstances of the Appellant

[89]

Trial
    counsel did not request, and the trial judge did not order, a pre-sentence
    report. According to trial counsels submissions, the appellant was 21 years
    old when he shot Peter Williams and 24 when sentenced. He lived with some
    members of his family. His parents had divorced when he was very young. He left
    school before completing Grade 11 but was trying to extend his educational
    qualifications while in custody. His employment history consisted mainly of
    short-term employment through various employment agencies, but he did work for
    one year in another province.

[90]

The
    attempted murder of Peter Williams was the appellants first offence. At the
    time of sentencing, however, the appellant had been convicted and sentenced on
    a firearms charge. He was detained prior to trial on that charge and had
    several months remaining on that sentence when sentenced on this conviction.

The Positions of the Parties on Sentence

[91]

Trial
    counsel invited the trial judge to impose a sentence of imprisonment of nine
    years. He did not seek credit for pre-sentence custody because the pre-sentence
    detention related to the subsequent firearms offence.

[92]

The
    Crown sought a sentence of imprisonment in the range of 12-15 years served
    concurrently with the sentence the appellant was then serving for the unrelated
    firearms conviction. She too invited the trial judge not to award the appellant
    any credit for pre-sentence custody.

The Reasons for Sentence

[93]

After
    making some findings of fact about the circumstances of the offence, the trial
    judge referred to the fundamental principle of sentencing  the protection of
    society. He considered the dominant sentencing objectives for serious violent
    offences, such as attempted murder, were denunciation and deterrence. But he
    also acknowledged the need to consider rehabilitation because of the
    appellants age and the absence of any criminal record when he shot Peter
    Williams.

[94]

The
    trial judge considered the appellants age, the absence of a criminal record,
    and the fact that the offence was not pre-meditated, as mitigating factors. He
    viewed the appellants moral culpability (evidenced by an intent to kill) as
    well as his use of a restricted or prohibited firearm, the number of shots
    fired and the location of the offence (in the victims home) as aggravating
    factors.

[95]

The
    trial judge then imposed a sentence of 11 years imprisonment to be served
    concurrently with the sentence the appellant was already serving. He awarded no
    credit for pre-sentence custody.

The Arguments on Appeal

[96]

The
    appellant says the trial judge failed to apply the fundamental principle of
    proportionality in sentencing the appellant, a youthful first offender, to
    imprisonment for 11 years. He asks this court to reduce the sentence to nine
    years because the trial judge

·

did not mention the fundamental principle of proportionality
    among the sentencing principles and objectives he identified as controlling;

·

failed to make the findings of fact required of him under s.
    724(2) of the
Criminal Code
as a basis for the sentencing;

·

said that the details about the appellants offence did not
    matter in determining a fit sentence;

·

considered an element of the offence  the intent to kill  as an
    aggravating factor on sentence, despite binding authority to the contrary;

·

assessment of the appellants moral culpability was incomplete
    and imbalanced, and

·

failed to keep in mind that Williams recovered physically from
    his injuries when he considered the nature of Peter Williams injuries as an
    aggravating factor on sentence.

[97]

The
    respondent rejects the appellants claim. He reminds us that sentencing
    decisions are entitled to substantial deference on appellate review. Appellate
    courts can only intervene if an error of law or principle had an impact on the
    sentence imposed or the sentence imposed is otherwise demonstrably unfit. In
    the respondents submission, it beggars belief that an experienced trial judge
    would have lost sight of and failed to apply the fundamental principle of
    sentencing  proportionality.

[98]

The
    respondent also takes issue with the appellants reliance on various aspects of
    the trial judges reasons as evidence that he failed to consider and apply the
    fundamental principle of proportionality.

[99]

The
    trial judge found that Peter Williams was not the aggressor. The only act of
    aggression alleged was Williams production of the gun. The trial judge
    concluded from the jurys rejection of the claims of accident and self-defence
    that they were also satisfied that the appellant, not Williams, was the
    aggressor.

[100]

The respondent
    concedes that the trial judge erred in considering intent to kill, an essential
    element of the offence of attempted murder, to be an aggravating factor on
    sentence. That acknowledged, the trial judge was bound to take into account, in
    connection with proportionality, the gravity of the appellants offence and his
    moral blameworthiness. Intending to kill another human being is reflective of
    these components of the fundamental principle of proportionality.

[101]

Further, the
    respondent continues, the trial judge did consider the victims recovery from
    his wounds, but as he was entitled to do, he did not consider that recovery was
    a mitigating factor as the appellant claims. While it is true that the offence
    did not occur in a public place with the attendant risk to innocent bystanders,
    it happened in the victims own home where he was entitled to feel safe and
    involved the firing of several shots that emptied the magazine of a prohibited
    or restricted firearm and left the victim, who had befriended the appellant,
    permanently injured.

The Governing Principles

[102]

The principles that
    govern our statutory authority to consider the fitness of a sentence imposed at
    trial are uncontroversial and in no need of elaboration. Four brief points will
    suffice.

[103]

First, sentencing
    judges are in the best position to determine a just and appropriate sentence
    that pays heed to the sentencing objectives and principles set out in the
Criminal
    Code
. It is especially so where the sentence is imposed after a contested
    trial. Accordingly, appellate courts accord substantial deference to sentencing
    decisions when exercising their powers of review under s. 687(1) of the
Criminal
    Code
:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras.
    11, 48.

[104]

Second, an appellate
    court is entitled to intervene under s. 687(1) of the
Criminal Code
where the sentencing judge erred in principle, failed to consider a relevant
    factor, or erred in considering an aggravating or mitigating factor, but only if
    it appears from the sentencing judges decision, read as a whole, the error
    impacted had an impact on the sentence ultimately imposed:
Lacasse
, at
    paras. 43-44.

[105]

Third, the mere fact
    that a judge deviates from the proper sentencing range does not, on its own,
    justify appellate intervention. The choice of sentencing range or of a category
    within a range falls within the trial judges discretion and cannot, on its
    own, constitute a reviewable error. Apart from errors of law or principle that
    impact the sentence, appellate intervention is only warranted where the
    sentence imposed is demonstrably unfit, that is to say, clearly unreasonable:
Lacasse
,
    at paras. 11, 51-52.

[106]

The final point
    concerns aggravating and mitigating factors. While it is an error to consider
    an element of the offence an aggravating factor, such an error must have had an
    impact on the sentence imposed to permit appellate intervention:
Lacasse
,
    at paras. 42-44. Likewise, a sentencing judges decision to weigh aggravating
    and mitigating factors in a particular way does not, in itself, permit
    appellate intervention unless the weighing is unreasonable:
Lacasse
,
    at para. 49, 78.

The Principles Applied

[107]

I would reject this
    claim of error. As I will explain, I am not satisfied, reading the reasons for
    sentence as a whole, that the trial judge failed to have in mind or to apply
    the fundamental principle of proportionality in determining the sentence he
    imposed.

[108]

Section 687(1) of the
Criminal
    Code
limits appellate courts authority to intervene in sentence appeals.
    An error alone is not enough. In the language of
Lacasse
, not only
    must there be an error, but that error must also have had an impact on the
    sentence imposed to such an extent that the sentence is not fit.

[109]

To begin, I am not at
    all persuaded that, without more, the sentencing judges failure to explicitly state
    the principle of proportionality reflects an error of law or principle, much
    less an error that had an impact on the sentence ultimately imposed. The better
    measuring stick is whether the reasons, read as a whole, betray fidelity to this
    fundamental principle that the sentence imposed be proportionate to the gravity
    of the offence and the degree of responsibility of the offender who committed
    it. By that measure, this claim of error in principle fails.

[110]

Second, the
    appellants submission that the sentencing judge failed to review the evidence
    adduced at trial and to make relevant findings of fact essential for sentencing
    purposes falls on barren ground. In jury trials, s. 724(2)(a)
requires
the sentencing judge to accept as proven all facts, express or implied,
    essential to the jurys guilty verdict. Section 724(2)(b) of the
Criminal
    Code permits
,
but does not
    require, a sentencing judge to find any other relevant facts proven on the
    basis of evidence adduced at trial or presented by either party on the
    sentencing hearing. The language of s. 724(2)(a) is mandatory; that of s.
    724(2)(b), permissive.

[111]

In this case, the
    trial judge found, based on the jurys verdicts, that the gun had been brought
    to the apartment, produced by the co-accused and fired repeatedly by the
    appellant from a distance of four feet after an argument, not in self-defence
    and not by accident, causing serious injuries to Williams. These were findings
    of fact based on the evidence adduced at trial. They were relevant for
    sentencing purposes and extended beyond what arose expressly or by necessary implication
    from the jurys verdict.

[112]

Third, the related
    complaint that the trial judge considered the details of the argument [] not
    relevant for sentencing purposes. The context in which the sentencing judge
    made this comment is important. At first light, the statement seems wrong  the
    circumstances in which an offence was committed do matter, indeed are essential
    components of the sentencing decision. However, the reference to the details
    of the argument in this case has to do with the subject-matter of the dispute,
    not the fact that there was a dispute or the link between the dispute and the
    shooting. The contemporaneity of these two events  the argument and the
    shooting  tends to show the reactive nature of the shooting and thus, as the
    trial judge pointed out elsewhere, that it was not premeditated. If
    premeditation had been established, it would have been a significant
    aggravating factor on sentence.

[113]

Fourth, an essential
    element of an offence of which an accused has been convicted cannot do double
    duty as an aggravating factor on sentence:
Lacasse
, at para. 42. Thus
    it was wrong for the sentencing judge to consider intent to kill as an
    aggravating factor. On the other hand, might it not be said that this, the most
    morally blameworthy state of mind known to our criminal law, bears upon the
    degree of responsibility component of the proportionality principle? In any
    event, I am unable to tease out of the reasons as a whole any nexus between
    this misstatement and the sentence imposed.

[114]

Fifth, the complaint
    that the sentencing judge erred in narrowing the applicable range of sentence
    unnecessarily when determining the sentence he would impose is unavailing. The
    choice of sentencing range or of a category within a range falls within the
    trial judges discretion and cannot, on its own, constitute a reviewable error.
    Appellate intervention is only warranted where the sentence imposed is
    demonstrably unfit:
Lacasse
, at para. 51. That is not this case.

[115]

In the end, I am not
    satisfied that the appellant has established that the trial judge failed to
    respect the fundamental principle of proportionality in making his sentencing
    decision. Nor am I persuaded that the sentence is otherwise demonstrably unfit.

CONCLUSION

[116]

I would dismiss the
    appeal from conviction, grant leave to appeal sentence, but dismiss the appeal
    from sentence.

Released: DW SEP 10 2019

David Watt
    J.A.

I agree. P.
    Lauwers J.A.

I agree. C.W.
    Hourigan J.A.

[1]
The appellant and Anthony Johnson were tried jointly on a two-count indictment
    containing counts of attempted murder and aggravated assault. The jury found
    the appellant guilty of both counts. The trial judge entered a stay on the
    count of aggravated assault. Johnson, who does not appeal, was found not guilty
    of attempted murder, but guilty of aggravated assault.

[2]
Johnson was charged first, elected trial by judge and jury and had a
    preliminary inquiry at which Williams testified. The appellant was charged
    about one year after the shooting. The Crown indicted the appellant directly
    and joined him with Johnson in the same indictment on which they were jointly
    tried.