R. v. Grant (A.) et al.,

• Jurisdiction: Ontario
• Judge: Laskin, Cronk and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2016 ONCA 639,(2016), 351 O.A.C. 345 (CA)
• Date: 08 February 2016

R. v. Grant (A.) (2016), 351 O.A.C. 345 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AU.022

Her Majesty the Queen (respondent) v. Anthony Grant and Devon Vivian (appellants)

(C58744; C59080; 2016 ONCA 639)

Indexed As: R. v. Grant (A.) et al.

Ontario Court of Appeal

Laskin, Cronk and Juriansz, JJ.A.

August 23, 2016.

Summary:

The accused, Grant and Vivian, were involved in a drive-by shooting (i.e., the firing of 13 shots into another vehicle), on a residential street in Toronto. The other car, a Honda, was driven by Paddy, and had four passengers, including Omar, Saez and Dale. Saez was killed and the others were wounded. The accused were convicted of second degree murder. Grant was also convicted of four counts of attempted murder, and Vivian was also convicted of four counts of aggravated assault. On their mandatory life sentences for second degree murder, the trial judge imposed a period of parole ineligibility of 18 years for Grant and 13 years for Vivian. On Grant's convictions for attempted murder, the trial judge imposed a life sentence. On Vivian's convictions for aggravated assault, the trial judge imposed a sentence of 14 years. The accused appealed both their convictions and sentences. At issue on the conviction appeals was: "1 Did the trial judge err by ordering static triers to decide the challenges for cause? 2 Did the trial judge err by refusing to leave self-defence with the jury? 3 Did the trial judge err by refusing to leave provocation with the jury? 4 Did the trial judge err in his instructions on reasonable doubt?5 Did the trial judge err in his W.(D.) instruction? 6 Did the trial judge make comments that gave rise to a reasonable apprehension of bias? 7 Did the trial judge adequately caution the jury on Paddy's preliminary inquiry evidence? 8 Did the trial judge err by refusing to admit evidence about the gang affiliations of some of the men in the Honda?".

The Ontario Court of Appeal dismissed the conviction appeals, but allowed the sentence appeals and reduced all the sentences imposed by the trial judge. The court rejected all grounds raised on the conviction appeals. As to sentence, the trial judge erred in imposing sentences that went beyond what the Crown was seeking without alerting the parties and allowing them to make further submissions. Further, the judge gave no reasons for going beyond the Crown's position. The trial judge also failed to give any real weight to the accused's relative youth and failed to give proper weight to other mitigating circumstances.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - See paragraphs 53 to 88.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - See paragraphs 89 to 104.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - See paragraphs 11 to 52.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - Use of rotating and static triers - See paragraphs 11 to 52.

Criminal Law - Topic 4322.5

Procedure - Jury - General - Triers - General - See paragraphs 11 to 52.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - See paragraphs 105 to 113.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally - See paragraphs 142 to 158.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character credibility of accused - See paragraphs 114 to 126.

Criminal Law - Topic 4867

Appeals - Indictable offences - Grounds of appeal - Bias - See paragraphs 127 to 141.

Criminal Law - Topic 4987

Appeals - Indictable offences - Powers of Court of Appeal - Powers re sentencing - See paragraphs 159 to 167.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - See paragraphs 168 to 176.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - See paragraphs 163 to 167.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - See paragraphs 159 to 180.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - See paragraphs 159 to 180.

Criminal Law - Topic 5938

Sentence - Aggravated assault - See paragraphs 159 to 180.

Counsel:

Delmar Doucette and Paul J.I. Alexander, for the appellant, Anthony Grant;

Lance Beechener and Gabriel Gross-Stein, for the appellant, Devon Vivian;

Leslie Paine and Melissa Adams, for the respondent.

This appeal was heard on February 8, 2016, before Laskin, Cronk and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Laskin, J.A., on August 23, 2016.