COURT OF APPEAL FOR ONTARIO
van Rensburg and Coroza JJ.A. and O’Marra J. (ad hoc)
BETWEEN
His Majesty the King
Respondent
and
Roger Jaggernauth
Appellant
Mark C. Halfyard and Julia V. Kirby, for the appellant
Alex Alvaro, for the respondent
Heard: March 5, 2025
On appeal from the convictions entered by Justice Jennifer Woollcombe of the Superior Court of Justice on June 14, 2023, with reasons reported at 2023 ONSC 3539.
van Rensburg J.A.:
Overview
1On November 7, 2018, Marlene Pimenta was shot with a concealed crossbow at her home when she opened the door for a man posing as a delivery driver. Severely injured, she called 911, and was taken to the hospital. She survived the attack with serious permanent injuries. The assailant was recorded on her security camera but never identified or apprehended.
2The appellant was Ms. Pimenta’s ex-boyfriend, who was identified as a suspect shortly after the attack. The Crown’s theory was that the appellant hired the assailant to kill Ms. Pimenta. After a 21-month investigation, the police arrested the appellant, and he was charged with attempted murder and counselling to commit murder.
3There was no direct evidence the appellant paid or made contact with the assailant. Instead, after a nine-day judge alone trial, the appellant was convicted on both counts based on circumstantial evidence. The evidence included the appellant’s strong motive to kill Ms. Pimenta, including his history of harassing her following their separation and her claim against his house for a substantial sum of money she had advanced on the understanding she would be put on title; the appellant’s request of an ex-biker friend, Paul Eakin, for help in finding someone to kill his “ex”; his conversation with a work manager in which he expressed his anger and said he wanted to kill her; and the appellant’s conduct after the shooting and before he claimed to have known of the attack, when he avoided police surveillance.
4The appellant appeals his convictions. He argues that (1) the trial judge materially misapprehended the evidence of Mr. Eakin, whose testimony was important to the attempted murder charge, and essential to the counselling charge; (2) the trial judge’s reliance on Ms. Pimenta’s evidence to conclude that the attack was targeted against her, and not a random incident, reveals palpable and overriding error; (3) the trial judge erred in law in relying on inadmissible police opinion evidence and failing to consider other reasonable alternatives for the appellant’s after-the-fact conduct; and (4) the verdicts were unreasonable.
5For the reasons that follow, I would dismiss the appeal.
6Briefly, and as I explain below, with respect to the first ground of appeal, the trial judge did not misapprehend the evidence of Mr. Eakin. She methodically reviewed the evidence and explained why she rejected the defence position that the appellant, in a phone call with Mr. Eakin, had only “vented” about wanting to kill Ms. Pimenta, and that any request he made was drunken rambling which should not be taken seriously. She also explained why she accepted that the call had taken place between May and November 2018. As for the second ground of appeal, the trial judge’s acceptance of Ms. Pimenta’s recollection that the shooter asked if she was “Marlene” as reliable reveals no error. In any event, as the trial judge explained, there was other compelling evidence that the attack was targeted. As for the after-the-fact conduct evidence, the trial judge did not, as alleged, improperly rely on police opinion evidence. Her conclusion that the appellant engaged in counter-surveillance activities after the attack, but before he was informed of the attack and that he was a suspect, was available on the evidence. The trial judge considered defence counsel’s alternative explanations for the appellant’s conduct, and, after finding they were speculative, she accepted the appellant’s after-the-fact conduct, considered as a whole and in context, as circumstantial evidence that he had arranged the attack. Finally, the appellant has not established that no reasonable trier of fact could have convicted him on the evidence; on the compelling evidence in this case the verdicts were entirely reasonable.
7I would add that I agree with the Crown that the trial judge conducted a fair and reasonable assessment of the evidence and that her reasons are comprehensive and responsive to the live issues at trial and the written and oral submissions of the parties. Contrary to the submissions of the appellant, the trial judge did not fail to grapple with any aspect of the evidence, nor did she draw from the evidence only the inferences that were most consistent with his guilt. The trial judge adverted to and properly applied all relevant legal principles in her careful assessment of the evidence and in her thorough analysis leading to the appellant’s convictions.
8In the reasons that follow I will begin by setting out in some detail a summary of the trial judge’s reasons for decision. I will then address each of the four grounds of appeal advanced by the appellant.
Trial Decision
9The trial judge began her reasons by identifying the relevant legal principles with respect to the standard and burden of proof, the assessment of circumstantial evidence, and the elements of attempted murder and counselling a murder that is not committed. She then turned to an analysis of the evidence.
(a) Evidence the attack was planned and targeted
10The trial judge first considered whether the evidence supported an inference that the attack on Ms. Pimenta was targeted, or whether, as the defence claimed, the shooting was an act of random violence. Unless it was targeted there would be no reason to believe that the appellant, who was not the shooter, could be guilty of attempted murder. The trial judge found that the attack was targeted, based on Ms. Pimenta’s testimony and the circumstances of the attack itself.
11Ms. Pimenta was shot on November 7, 2018. She testified that a man rang her doorbell, and she saw through the exterior security camera that he was holding a box. When she opened the door, the man asked, “are you Marlene?” She replied “yes”, and he told her the package was for her. She leaned over to see if her name was on the package, and when she did not see her name, she said the package was not for her. Ms. Pimenta testified that the shooter then said “[y]eah. This is for you. This is from Roger”, before shooting her with a crossbow concealed in the package. She called 911, and was taken to a hospital, where she spent over a month, including ten days in a medically induced coma.
12The police had interviewed Ms. Pimenta twice, first on November 19, 2018, and then eight days later, on November 27. She testified that at the time of the first interview, she was on medication, she was confused, and she had recounted what was essentially a false memory of an earlier event in which she was shot with a pellet gun while the shooter said, “this is from Roger”.
13The Crown conceded that the trial judge should place no weight on Ms. Pimenta’s testimony that the crossbow shooter said, “this is from Roger”, but submitted that the shooter having asked “are you Marlene?” was evidence the attack was planned and targeted. The trial judge agreed. She held that, while Ms. Pimenta’s evidence about the shooter saying “this is from Roger” was not reliable, particularly when she was confused about whether she was shot before, her assertion that the shooter asked if she was Marlene was more reliable: first, she had explained the context in some detail, recounting that after hearing the question, she leaned toward the package to see if her name was there, and second, she testified that, despite being foggy about other things, she had a clear memory of this.
14There were other factors that led the trial judge to conclude the attack was targeted. The attack occurred at Ms. Pimenta’s home where she lived alone, and the shooting appeared to have had no other purpose, such as a sexual assault or theft. The use of a crossbow concealed in a box suggested advance planning and thought. The trial judge concluded, based on these factors, that the attack was a deliberate and targeted attempt to kill Ms. Pimenta, and that there was “nothing random about [the] shooting”.
(b) Evidence of the appellant’s motive
15The trial judge then considered evidence of motive. After meeting through work, the appellant and Ms. Pimenta became involved in a relationship and moved in together in 2015. Ms. Pimenta had received more than $350,000 in a settlement after separating from her husband, all of which she had, over time, given to the appellant, on the understanding she would be put on the title to his house, where they lived together.
16The trial judge reviewed the extensive evidence about the ongoing conflict between the appellant and Ms. Pimenta and their separation in May 2018, Ms. Pimenta’s efforts to give the impression that she was open to resuming the relationship (including a holiday they went on together) while she sought legal advice, and the appellant’s harassing conduct. The appellant knew where Ms. Pimenta was living after he had hired someone to follow the moving truck, and he often showed up at her new home. He phoned and texted her constantly, and he made detailed notes of her movements. At some point in July, when it was clear their relationship was over, the appellant started tracking Ms. Pimenta’s movements with a GPS tracking device installed in her car. He continued to send her harassing and obsessive messages, he expressed concern about whether she was getting lawyers involved, and he confronted Ms. Pimenta and her new partner. Ms. Pimenta called police about the appellant’s presence at her home on two occasions and he was warned he could be charged with criminal harassment. By the end of August, the harassment had ended. Meanwhile, legal proceedings were commenced, with Ms. Pimenta’s lawyer registering a caution against title to the appellant’s home on July 27, notifying him that she was retained in early August, commencing a court application seeking among other things a constructive trust in the home, and, on October 9, 2018, obtaining, on notice, an order for a certificate of pending litigation (“CPL”).
17The trial judge accepted that the evidence demonstrated that the appellant was highly motivated to kill Ms. Pimenta or to have her killed. He was angry about her seeking the return of the money she advanced. The trial judge concluded that, by August 8 two things were clear to the appellant: first, because Ms. Pimenta had moved on to another relationship “[a]ny prospect of resuming their relationship and amicably resolving the issue of the $350,000 was gone”; and second, he knew Ms. Pimenta had retained counsel. According to the trial judge, the appellant understood the prospect of losing his home had gone up and it made him angry. Thereafter things got worse, and by October when the CPL was registered, the stakes were higher than they ever had been for the appellant, and he knew it.
18The trial judge also considered evidence that the appellant had listed his home for sale and quit his job in mid-July. Rejecting the Crown’s submission that this evidence indicated that the appellant had formulated a plan to leave the country with the equity in his home, the trial judge was not persuaded that much could be made of these pieces of evidence, and she indicated that she took nothing from them.
19The trial judge’s findings about the appellant’s harassing conduct after the separation and her conclusion that the appellant had a compelling motive to kill Ms. Pimenta are not challenged on appeal.
(c) Statements by the appellant prior to the attack on Ms. Pimenta
20The trial judge then considered the two conversations the Crown relied on as evidence the appellant intended to have Ms. Pimenta killed.
21The first was a call between the appellant and Mr. Eakin that took place before Ms. Pimenta was attacked. Mr. Eakin was a difficult witness, who had declined to review his police statements before testifying and chose not to bring his reading glasses to court, precluding him from refreshing his memory while testifying.
22Mr. Eakin testified that he first told police about the call when they went to his home on November 5, 2019, and that he told them that he knew they were there about the phone call. He believed, erroneously, that the police already had a transcript of the call when they spoke with him.
23Mr. Eakin was an old friend of the appellant, although the two had seen less of each other in the years prior to the conversation in question. The appellant knew Mr. Eakin was a former member of the Satan’s Choice Motorcycle Club, an outlaw biker gang, and Mr. Eakin testified that, when he was in the Club, he knew people who had offered to kill his own ex-wife.
24Mr. Eakin testified about a call from the appellant that he received at work, where the appellant had “ranted” to him about his relationship problems. According to Mr. Eakin, the first several minutes involved “drunken rambling”, with the appellant complaining he was going to lose everything. He also testified that the appellant had asked him whether he knew anybody that could “take out” his girlfriend. Under cross-examination Mr. Eakin stated that the appellant might have only said that he wished someone would take her out, while in re-examination he confirmed the appellant had asked him, “do you know anybody?”. Mr. Eakin testified that he quickly hung up because he thought the police regularly monitored the contents of phone calls and that the appellant’s words would attract police attention.
25Referring to the cell phone records, the trial judge noted that between May 2018 (when Ms. Pimenta moved out) and November 2018 (when she was attacked), there were only two calls between Mr. Eakin and the appellant long enough to have been the conversation Mr. Eakin described. One occurred on June 8 and the other on September 12. According to the records, these were calls placed by Mr. Eakin, which was contrary to his testimony that the conversation in question took place in a call he received while at work. When asked to pinpoint the timing of the call, Mr. Eakin insisted he was very bad with dates and times and that he could not say when the call had occurred. He did testify that he and the appellant often played “phone tag”, where one would call and the other would call back later at a more convenient time to talk.
26The trial judge concluded that the call took place during the relevant May to November time period. She stated that the call could have been one of the two longer calls where Mr. Eakin had called the appellant, and that it was more likely the call took place on the September date, as the appellant had not yet realized his relationship with Ms. Pimenta was permanently over, and that he was in jeopardy of losing his house at the time of the June call. The trial judge accepted that the appellant had asked Mr. Eakin for help in finding a hitman, and, rejecting what she characterized as “Mr. Eakin’s overt attempt to downplay the significance” of what the appellant said, she concluded that the appellant had known that Mr. Eakin could likely access a hitman, and that he had posed a calculated question to try to hire someone to kill Ms. Pimenta.
27The second set of utterances relied on by the Crown occurred during a conversation between the appellant and David Allan, who was the manager to whom he reported in a job he began in the fall of 2018. Mr. Allan testified about a conversation that occurred after the appellant had walked into his office in an agitated state. Mr. Allan described their conversation as relatively short, but said it stood out sharply because of how angry the appellant had been. He testified that the appellant had said at least twice that he wanted to kill, or could kill, “his wife”, that she did not put a penny into the house or the car, and that his impression was that the appellant was not joking when he said this. The defence challenged Mr. Allan’s failure to make any notes of the conversation at the time, or to report it to his superiors.
28The trial judge accepted Mr. Allan’s evidence that the appellant had been extremely angry and had said something to the effect of wanting to kill Ms. Pimenta. She acknowledged the defence position that it would be illogical for the appellant to have told an acquaintance that he wanted to kill Ms. Pimenta if he was actually in the process of arranging her death. However, having accepted the evidence of Mr. Allan that the appellant did make those statements, and that he did so in a state of heightened anger and agitation that Mr. Allan took to be sincere, the trial judge concluded that the statements showed the appellant’s deep anger at Ms. Pimenta, which was so extreme that he was unable to maintain his composure at work, and so provided further evidence that he genuinely wanted Ms. Pimenta dead. On appeal the appellant does not challenge the trial judge’s treatment of Mr. Allan’s evidence.
(d) Evidence of the appellant’s finances before the attack
29The Crown submitted that the appellant’s financial history indicated that, between July and October he withdrew a total of $90,000 in cash in order to hire a hitman. The trial judge accepted that there were a number of other possible explanations for the withdrawals, such as sheltering the money from the family law proceedings, or using it to pay legal counsel, concluding that the possibility that the appellant used the money to hire a hitman was too speculative to be probative of his guilt.
(e) The appellant’s after-the-fact conduct
30Finally, the trial judge considered evidence of the appellant’s after-the-fact conduct, which the Crown argued showed that the appellant knew of the hit on Ms. Pimenta prior to being informed the attack had taken place by police on November 22, 2018. The Crown also argued that other after-the-fact conduct following November 22 showed that the appellant’s efforts to evade surveillance rose and fell in accordance with his perception of his risk from the police investigation.
31Police officers testified that, during the period before November 22, they had observed conduct consistent with “counter-surveillance” or an effort to avoid police observation. The appellant’s actions included his staying away from work for three days after the attack, leaving his house and his car and staying with his girlfriend, the appellant and his girlfriend travelling to and from her house in separate cars owned by her, driving on the highway at a speed slower than normal traffic, driving into the alley leading to his girlfriend’s garage with his headlights off, and the appellant and his girlfriend, during a late-night walk, appearing to discuss and look closely at one of the police vehicles involved in the surveillance. Several officers testified that in their view the appellant’s behaviour was consistent with an attempt to avoid police surveillance.
32The trial judge accepted that, taken together, the after-the-fact conduct evidence before November 22 supported an inference that the appellant was involved in the attack on Ms. Pimenta. This was especially true since some of the appellant’s conduct, in particular his driving slowly in highway traffic, matched behaviour shown by the appellant after November 22, when it was acknowledged that he was aware of police surveillance and was trying to avoid it. While there may have been innocent explanations for some of the conduct, the explanations were in the trial judge’s view highly speculative, and the cumulative effect of this after-the-fact conduct pointed to the appellant attempting to avoid surveillance, indicating that he was aware that he was likely a suspect before he was notified of the attack.
33However, the trial judge rejected that the appellant’s after-the-fact conduct after November 22 was circumstantial evidence of his guilt. She accepted that the appellant had engaged in “counter-surveillance”, and that some of his behaviour was highly suspicious. She concluded however that all that could be taken from the behaviour was that the appellant knew that the police investigation of him was continuing, that he did not like it, and that he wanted to evade their ongoing surveillance.
(f) The trial judge’s conclusion
34Assessing all the evidence, the trial judge concluded that the appellant was guilty and convicted him of both charges. With respect to the charge of attempted murder she found Ms. Pimenta was shot in a targeted hit, and that the appellant had a clear motive to want her dead due to his anger over the end of their relationship and the risk he would lose his home in family litigation. He took active steps to seek out a hitman who could have Ms. Pimenta killed, showing that he was planning to arrange her death. His conduct after the attack showed that he was aware that it had happened, and that he knew he would be a likely suspect, even before he was informed of the attack. Recognizing that “[t]here may be a conviction on the basis of circumstantial evidence only when guilt is the only reasonable inference to draw from the evidence as a whole”, the trial judge stated that she was satisfied there was no reasonable inference other than that the appellant had arranged the attack. On the counselling charge, the trial judge concluded that the appellant was making a genuine attempt to hire a hitman to carry out Ms. Pimenta’s murder in his conversation with Mr. Eakin, and that he had tried to enlist Mr. Eakin’s help in the attempt, making him guilty of counselling to commit murder.
Issues
35The appellant raises four issues on appeal. He asserts that:
a) the trial judge misapprehended Mr. Eakin’s evidence about his call with the appellant, when she concluded that the appellant was serious when he asked for help to find someone to kill Ms. Pimenta, and when she found that the call took place between May and November 2018;
b) the trial judge made a palpable and overriding error in finding, based on Ms. Pimenta’s unreliable evidence, that the shooter had asked “are you Marlene?”, and in concluding, based on that evidence, that the attack was a targeted attempt to kill Ms. Pimenta;
c) the trial judge erred by improperly admitting opinion evidence about the appellant’s after-the-fact conduct during the period from November 8 to November 22, 2018, and in failing to consider reasonable alternative explanations for such conduct; and
d) the verdicts were unreasonable.
Analysis
(a) The trial judge did not misapprehend Mr. Eakin’s evidence
36The parties agree that the evidence about the appellant’s call with Mr. Eakin was critical in this trial. It was strong circumstantial evidence implicating the appellant in the attack on Ms. Pimenta and necessary evidence for the counselling charge.
37At trial there was no challenge to the call having taken place. The live issues were the specific content of the call, in particular whether the appellant asked for Mr. Eakin’s help in finding someone to kill Ms. Pimenta or whether he simply expressed a desire that someone kill her, and whether the appellant was serious, or simply engaged in drunken rambling or venting during the conversation. The timing of the call was also important: it was essential to the counselling charge which was particularized as having happened between May 2 and November 2, 2018, and relevant to the Crown’s theory of motive – the closer the call was to the shooting and to the appellant and Ms. Pimenta’s dispute over the house, the more it supported the appellant’s motive and intention to kill her.
38Defence counsel at trial focussed on the content of the call. On direct examination Mr. Eakin testified that the appellant, after complaining about his “ex” wanting to take everything after their separation, had asked him “do you know anybody that could take her out?”, and he confirmed this evidence on re-examination. On cross-examination Mr. Eakin recalled the appellant having stated, “I wish someone would take her out”. Apart from emphasizing the inconsistency in Mr. Eakin’s testimony, the defence challenged the reliability of his recollection of the call, based on his operation of heavy machinery at the time, the passage of time, and the suggestion that (contrary to Mr. Eakin’s testimony) the police had already told him about the attack before he described the call. The defence also argued that Mr. Eakin’s testimony was unreliable because his assertion that the appellant had called him was inconsistent with the phone records, which did not show any call from the appellant that was long enough to have been the call in question.
39On appeal the appellant does not challenge the trial judge’s conclusion that he had asked if Mr. Eakin knew anyone who could “take out” his “ex”. Nor does he challenge the reliability of this witness’s evidence. Instead, the appellant asserts that the trial judge materially misapprehended Mr. Eakin’s evidence when she accepted that the appellant was making a serious request for help in finding someone to kill Ms. Pimenta, and in concluding that the call took place between May and November 2018.
40First, the appellant contends that the trial judge’s misapprehension of Mr. Eakin’s evidence is revealed in her conclusion that “whatever Mr. Jaggernauth said was serious enough that it caused Mr. Eakin to become very angry and hang up. It was the sort of thing that he perceived would attract police attention. It was the sort of thing he believed should never be said over the phone.” The appellant asserts that the thrust of Mr. Eakin’s evidence was that he hung up because he believed that police routinely monitored calls, and that the call would attract police attention solely on the basis of the words that were used. According to the appellant, the fact Mr. Eakin hung up was not evidence that the appellant was making a serious request; to the contrary, Mr. Eakin testified that he regarded the call as drunken rambling and venting, and he denied the appellant was making a serious request for help.
41I disagree that the trial judge used the evidence that Mr. Eakin hung up on the appellant in the way the appellant suggests, and that, in so doing, she misapprehended his evidence. As I have already observed, the central issue with respect to Mr. Eakin’s evidence was the content of the call: specifically, whether the appellant had asked for his help in finding someone to kill Ms. Pimenta. Mr. Eakin’s assertion that he hung up as soon as the appellant uttered the impugned words was key to the trial judge’s acceptance of his evidence that such a request was made. As Mr. Eakin testified, the appellant should have used “coded” language in discussing such a thing when the police could be monitoring the call, and he never should have said such a thing over the phone.
42Again, the challenge on appeal is to the trial judge’s finding that the appellant, in making the request, was serious, and that the request was not just part of what the defence characterized as “drunken rambling”. Contrary to the appellant’s submission, the fact that Mr. Eakin hung up was not pivotal to this issue and the trial judge did not use the fact that Mr. Eakin hung up as a “proxy to say [the call was] more likely to be serious”. Nor was it determinative, as the appellant submits, that Mr. Eakin gave “uncontradicted evidence” that he did not regard the request as serious. The trial judge was entitled, as she did, to reject Mr. Eakin’s overt attempt to downplay the significance of what the appellant said.
43Whether or not the call was serious was informed by its context: how the appellant came to speak with Mr. Eakin and the content of the conversation. The appellant reached out to Mr. Eakin, someone he knew was a former biker, after Ms. Pimenta had left him and he was afraid of “losing everything”, when as the trial judge found, he had a strong motive to kill her. The appellant and Mr. Eakin were old friends, but at the time of the call they had not been in touch regularly. Mr. Eakin had the ability to arrange a hit, having volunteered during his testimony that, “if anybody had the means to do it, I could have had it done.”
44In deciding whether to accept some, all or none of Mr. Eakin’s evidence, the trial judge was required to consider the evidence in the context of the other evidence in the trial. She carefully assessed that evidence, leading to her conclusion at para. 107 of her reasons that the appellant had made a call to Mr. Eakin in which he asked for his help to find someone to kill Ms. Pimenta, and that this was a serious request by the appellant and not simply drunken rambling. She said:
This call was not merely Mr. Jaggernauth ranting about the end of his relationship with his friend. While Mr. Eakin does not remember precisely the words Mr. Jaggernauth used that made him angry, whatever Mr. Jaggernauth said caused him to perk up and pay attention. I base this on the fact that whatever Mr. Jaggernauth said was serious enough that it caused Mr. Eakin to become very angry and to hang up. It was the sort of thing that he perceived would attract police attention. It was the sort of thing he believed should never be said over the phone. I cannot conclude, as the defence suggests, that this was merely ranting about some wish that someone would take his wife out. I accept Mr. Eakin’s evidence under re-examination that Mr. Jaggernauth asked him if he knew anyone who could either take out or get rid of his ex-spouse, or something equivalent. While they had talked about their personal situations before, this was not Mr. Jaggernauth simply ranting in a drunken upset haze. I find it was a calculated question to a person Mr. Jaggernauth knew was connected to a biker club and who could set up a hit. I do not accept as reliable evidence Mr. Eakin’s overt attempt to downplay the significance of what his friend said.
45Nothing in the trial judge’s analysis supports the appellant’s contention that her conclusions with respect to the content of the call and the seriousness of the appellant’s request were based on a misapprehension of the evidence.
46As his second argument on this ground of appeal, the appellant submits that the trial judge misapprehended the evidence when she concluded that the phone call took place between May and November 2018. The appellant asserts that Mr. Eakin never put the call within that precise time range. Rather, he testified that he was not good with dates and times, and that he could not say when the call occurred. Further, the appellant points to the fact that Mr. Eakin’s evidence was definitive that it was the appellant calling him, while he was at work, and that Mr. Eakin also testified about a subsequent call he made to the appellant to explain why he had been so angry, where the appellant had apologized and said he had been drinking and upset. The appellant contends that neither call is consistent with the phone records. He asserts that the trial judge erred in relying on Mr. Eakin’s evidence about playing telephone tag to conclude that the call was one of the two longer calls in June and September 2018 that Mr. Eakin had made to the appellant. He only gave this evidence because of his mistaken belief that the police already knew the contents of the phone calls.
47I would not give effect to this argument.
48First, and contrary to the appellant’s submissions, Mr. Eakin provided evidence about the timing of the call. Although he initially claimed to have no recollection of its timing, his memory was refreshed by his November 2019 police statement in which he stated (without prompting) that the call took place maybe a year earlier, and he testified that the timing of the call “could be a year, it could be a year and a half” before the police interview. When he was referred to the list of calls, he also agreed that the call was probably one of the two longer calls, one for 371 seconds in June and the other for 310 seconds in September 2018. The only time Mr. Eakin suggested that the call might have taken place outside the May to November 2018 timeframe was when he agreed in cross-examination that, if the police had shown him a list of calls with one 300 second call in 2017, he might have identified it as the call in question.
49The trial judge acknowledged that she could not use the length of the calls or their origin to determine from Mr. Eakin’s evidence when the conversation occurred. Instead, she concluded that the call had taken place at some point after May 2018 because of the content of the call – that the appellant having complained that he was going to lose everything in the split from his “ex” was consistent with the separation in May 2018 and what was going on in the months that followed. The trial judge acknowledged that Mr. Eakin testified that the appellant placed the call to him, however she found that this did not prevent her from finding that the call had taken place during the time period when the appellant was most agitated about his relationship, which was after he and Ms. Pimenta had separated. She also reasonably relied on Mr. Eakin’s evidence about playing phone tag. Mr. Eakin acknowledged the possibility that the conversation took place in a call he made to the appellant, referring to them playing phone tag, and he confirmed that evidence in cross-examination. The fact that Mr. Eakin may have offered this explanation because he believed the police already knew the contents of the calls when they showed him the list may well have affected the reliability of this evidence, which the trial judge was nevertheless entitled to accept.
50The issue is not whether a different conclusion could be drawn from Mr. Eakin’s evidence in respect of the timing of the calls, but whether the trial judge materially misapprehended the evidence relevant to this issue. I see no misapprehension of the evidence.
(b) The trial judge did not err in finding that the shooter asked Ms. Pimenta to confirm her identity and that the attack was targeted
51Turning to his second ground of appeal, the appellant submits that the trial judge made a palpable error in accepting Ms. Pimenta’s evidence that the shooter asked whether her name was “Marlene”, and that this error was overriding because the trial judge used this evidence to conclude that the attack was targeted against Ms. Pimenta.
52I will deal with this ground of appeal only briefly. First, as I will explain, the appellant has not demonstrated that the trial judge made a palpable factual error. Essentially this ground of appeal takes issue with the trial judge’s conclusion that Ms. Pimenta’s recollection that the shooter asked her to confirm her identity was reliable, when the trial judge had rejected her evidence, which was part of the same account, that the shooter had also said “this is from Roger” because it was unreliable.
53The trial judge accurately recounted the evidence and the parties’ positions, including that the Crown was not relying on Ms. Pimenta’s evidence that the shooter said, “this is from Roger”, something she recalled the attacker having said during the fictional attack she described during her first police interview, when she was heavily medicated. The trial judge explained why, although she did not accept this part of Ms. Pimenta’s testimony about the attack, she accepted her evidence that the shooter asked if she was “Marlene”. First, Ms. Pimenta had testified in some detail about the context in which this was said, and the shooter having confirmed her identity was consistent with her evidence that she leaned over to try to find her name on the package. Second, while Ms. Pimenta acknowledged that her memory was foggy about other events, she was certain she had a clear memory of the shooter confirming her identity. The trial judge’s reasons for accepting this evidence were responsive to defence counsel’s challenges to the “are you Marlene?” evidence, including the suggestion to Ms. Pimenta that her memory at the time of the police interview on November 19, 2018, when she did not mention the shooter having confirmed her identity, would have been better than at trial. While the trial judge acknowledged that Ms. Pimenta’s testimony that the shooter had said “this is from Roger” was unreliable, she offered a reasoned explanation for accepting that he had asked “are you Marlene?”.
54On appeal the appellant advances other reasons why the trial judge ought to have rejected Ms. Pimenta’s evidence about the shooter confirming her identity: the fact that she had not mentioned this during the 911 call, and that leaning over to see whether the package was for her was equally consistent with the shooter not having confirmed her identity. While other inferences on the evidence were available to the trial judge, her findings were the product of “an evidence-based and context-specific assessment” of the witness’s testimony, and as such reveal no palpable error: see R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at para. 85, citing R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296, at para. 67.
55Nor could any error in respect of this finding be properly characterized as “overriding”. An overriding error is one that “affect[s] the core” or “form[s] an essential part” of a trial judge’s finding of guilt: Kruk, at paras. 110, 126. The trial judge’s acceptance of Ms. Pimenta’s evidence about the shooter asking whether she was “Marlene” was not essential to her conclusion that the attack was targeted against Ms. Pimenta. Rather, the trial judge expressly stated that this conclusion was also based on the circumstances of the attack itself: that it occurred at Ms. Pimenta’s home where she lived alone, that the shooting appeared to have had no other purpose such as sexual assault or theft, and that the use of a crossbow concealed in a box suggested advance planning and thought.
56Accordingly, I would reject this ground of appeal.
(c) The trial judge gave proper effect to the after-the-fact conduct evidence
57The appellant’s third ground of appeal concerns the trial judge’s treatment of the evidence of the appellant’s after-the-fact conduct, and her conclusion that his conduct in the period between the date of the attack and November 22, 2018 demonstrated that he wanted to evade being seen or followed by police, which was circumstantial evidence pointing to his guilt. The appellant submits that the trial judge erred both by admitting and relying on police opinion evidence that the conduct they observed was “counter-surveillance”, and in assigning probative value to the after-the-fact conduct evidence when there were equally reasonable alternative explanations for his conduct.
58According to the testimony of Mr. Allan, on November 8, the day after the attack, the appellant had gone to work, but left early, sending a text to his employer with a doctor’s note to explain his absence for the next three days. The police officers who had conducted surveillance of the appellant beginning on the night of the attack testified about their observations from the evening of November 8, which included that the appellant’s car was parked in his driveway while he and his girlfriend were observed in separate vehicles registered to her, driving in tandem below the speed limit on the highway; that the appellant turned off his headlights as he drove down an alley leading to his girlfriend’s home address; and that the appellant and his girlfriend walked separately around her neighbourhood late at night, and looked at and appeared to discuss, a parked car in which an officer was conducting surveillance.
59In considering this ground of appeal it is important to recall how this evidence was addressed at trial. The main challenge by the defence was to the credibility and reliability of the police evidence about their observations. Defence counsel argued that the police evidence about what they saw was not reliable, and that the conduct that was observed was not consistent with counter-surveillance. Defence counsel argued in the alternative that there were other reasons for the appellant to have engaged in counter-surveillance, including that, as a racialized person he was uncomfortable with the police following him.
60On appeal the appellant shifts the focus of his argument. He does not challenge the accuracy of the police observations. Rather, his first argument is that the trial judge erred in accepting police opinion evidence that such conduct was consistent with counter-surveillance. The appellant relies on R. v. Gill, 2017 ONSC 3558, where Fairburn J. (as she then was), characterized similar evidence from police witnesses as inadmissible opinion evidence, and declined to consider it as part of her decision: at paras. 41-44.
61Whether or not, in an appropriate case, a trial judge is entitled to rely on police opinion evidence in similar circumstances, the record shows that, in this case, the trial judge was not invited to accept opinion evidence from the police on the characterization of the appellant’s after-the-fact conduct, that counsel agreed on the proper approach to the officers’ evidence, and that the trial judge followed that approach in her assessment and analysis of the evidence.
62The opinion evidence that is impugned on appeal was initially elicited by defence counsel in the cross-examination of a police witness. The Crown then elicited the opinions of other police witnesses as to whether the appellant’s behaviour was “counter-surveillance”, without objection from defence counsel. During a discussion with the trial judge at the time, defence counsel explained that he had cross-examined the police witnesses on their opinions in an effort to undermine the credibility of their evidence about what they observed, and not with a view to eliciting opinion evidence that would be relied on by the trial judge. In fact, counsel for the Crown and the defence agreed that it would be up to the trial judge to determine whether the acts had occurred and whether they were consistent with “counter-surveillance”.
63As such, the trial judge did not rely on police opinion evidence; rather she arrived at her own characterization of the evidence when she concluded that the appellant had engaged in counter-surveillance. She stated at para. 168 of her reasons:
Viewing the evidence of November 8, 2018 cumulatively … there is a sound basis from which to conclude Mr. Jaggernauth was hypervigilant and “heat conscious” at a time when, based on what he told police on November 28, he was unaware of the attack on Ms. Pimenta. Mr. Jaggernauth’s decision to stay away as much as he did from his work and his home and his own vehicle, combined with turning off his headlights in the alley and the late night walk in the neighbourhood, viewed together, are all suggestive of him being “heat conscious”. His obvious interest in a car parked in [his girlfriend’s] neighbourhood strengthens this conclusion.
64As his second argument on this ground of appeal, the appellant submits that the trial judge was wrong to rely on this after-the-fact conduct as evidence of the appellant’s guilt because she did not adequately entertain other reasonable explanations for his conduct, but instead dismissed them as highly speculative.
65I disagree. The trial judge’s reasons were responsive to the arguments made at trial. She acknowledged that there were many possible explanations for each of the appellant’s actions viewed in isolation, such as that the appellant had taken time off work for tests, and that he and his girlfriend had taken a late night walk in the neighbourhood thinking they had been followed by a similar car earlier in the day, perhaps in relation to the family law dispute or something entirely different. She characterized these possibilities as “highly speculative” and she concluded that, when all of the evidence was considered together, “it [pointed] to Mr. Jaggernauth having concern about the possibility police were watching him at a time when on his own statement he had no reason to.”
66In oral argument on the appeal, the appellant submitted that the trial judge had failed to consider that the appellant’s after-the-fact conduct could be explained, as in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp. 145, 147, by the fact that the appellant was conscious of having committed another offence for which he admitted culpability – that of criminal harassment, so that the after-the-fact conduct would have no probative value with respect to any particular offence.
67I disagree. This argument was made in passing at trial, in the appellant’s written submissions, and only as part of an argument that the appellant’s hypervigilance about the possibility of surveillance could be explained by his perspective as a racialized man. Counsel for the appellant submitted that “Mr. Jaggernauth’s status as a racialized person may have made him sensitive to police surveillance. On the evidence, in August 2018, Mr. Jaggernauth received two warnings from the police after Ms. Pimenta accused him of unwanted contact”. The trial judge referred to this submission at para. 170 of her reasons where she stated:
I assessed whether Mr. Jaggernauth’s hypervigilance about the possibility of surveillance could be because [of] his perspective as a racialized man. While the defence fairly highlights that he had been contacted by police after Ms. Pimenta’s complaints about him, this had been in August. Even acknowledging that the impact of race relations and institutionalized racism may have affected his perceptions about the police, this seems to me unlikely as an explanation for all of the after-the-fact conduct I rely on.
68In any event, the appellant’s possible concern that he was under investigation for another offence, namely criminal harassment, is not a reasonable alternative explanation for all of the after-the-fact conduct that was relied on by the trial judge. The police had decided not to press charges after the appellant’s second warning, and, although there was a dispute about when his harassing conduct ended, everyone agreed that the harassment had not continued after the end of August 2018.
69Accordingly, I disagree with the submission on appeal that the after-the-fact conduct relied on by the trial judge had no probative value and ought not to have been considered. As Martin J., writing for the majority on this point, noted in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 124, “[t]he existence of alternative explanations for the accused’s conduct does not mean that certain evidence is no longer relevant. The overall conduct and context must be such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic.” She emphasized that “[p]ure logic is not the only, or even primary consideration.”
70This is not a case where it was impossible to choose between competing inferences when the after-the-fact conduct evidence was considered as a whole and in context. As such, it was for the trial judge, as the trier of fact, to consider and to weigh any alternative explanations for the appellant’s conduct: R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 32 C.R. (6th) 103 (Ont. C.A.), at para. 87; and R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at paras. 59-60. Here, the evidence was admissible, and it was the role of the trial judge to consider and to weigh any alternative explanations for the appellant’s conduct. This is precisely what the trial judge did. She instructed herself pursuant to Calnen, she referred to alternative explanations for the appellant’s conduct that had been raised in argument by defence counsel, and she rejected them as speculative. The trial judge gave reasons for why she found that the after-the-fact conduct was consistent with the appellant’s involvement in the attack, and she made no error in so finding.
(d) The verdicts were reasonable
71Finally, the appellant argues that the verdicts were unreasonable. This case was largely circumstantial, and in the appellant’s view the evidence against him did not leave his guilt as “the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
72A verdict will be unreasonable when no properly instructed trier of fact, acting judicially, could have rendered it: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. When the Crown’s case is circumstantial, a verdict is reasonable if the trier of fact “was entitled to find that the circumstantial evidence in light of human experience, when considered as a whole, and the absence of evidence, could exclude all reasonable inferences other than guilt”: R. v. Anderson, 2020 ONCA 780, at para. 30, leave to appeal refused, [2021] S.C.C.A. No. 103; see also Villaroman, at paras. 30, 36 and 69.
73The appellant focuses on the fact that, despite a lengthy investigation which turned up other discreditable actions by the appellant, including the extensive stalking of Ms. Pimenta, the police nonetheless found no evidence that the appellant ever made contact with a hitman or successfully arranged for the attack. According to the appellant, all the trial judge had was evidence of motive and opportunity, which was not a sufficient basis on which to convict.
74In making the unreasonable verdict argument the appellant’s counsel submitted that “there was nothing connecting [the appellant] to the crime”, that there were “big holes” in the prosecution case, and that the trial judge looked at the facts selectively and gave each individual piece of evidence its most inculpatory interpretation.
75This is not a fair characterization of the evidence and its assessment by the trial judge. While there was no direct evidence linking the appellant to the attack, the circumstantial evidence was compelling. And, contrary to the appellant’s submission, the trial judge refused to rely on certain evidence advanced by the Crown – including the appellant’s withdrawal of $90,000 in the weeks before the attack, the listing of his home and quitting his job in mid-July, and the after-the-fact conduct of the appellant after November 22.
76Ms. Pimenta was without question the target of an attack that had no purpose other than to kill her. The shooting occurred at her home where she lived alone, and the crossbow-armed attacker had no criminal objective other than to kill her. The evidence of the appellant’s compelling motive and his strong animus against Ms. Pimenta were highly relevant in establishing his complicity in the attempted killing: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60 and R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at paras. 71-72. The timing of the attack followed an escalation in the family law dispute, where, by October 2018 Ms. Pimenta had retained counsel, commenced legal proceedings, and registered a CPL against the appellant’s home. The appellant was in real jeopardy of losing his home and was so angry that he told his manager at work about it, expressing a desire to see Ms. Pimenta dead. And, voicing concerns about “losing everything”, the appellant had reached out to an old friend with criminal contacts, in a serious attempt to find someone to kill Ms. Pimenta. The day after Ms. Pimenta was shot, at a time when the appellant claimed to have had no knowledge of the attack, he engaged in conduct suggesting he was worried about and trying to avoid police surveillance.
77As this court reiterated in R. v. Staples, 2022 ONCA 266, 413 C.C.C. (3d) 149, leave to appeal refused, [2022] S.C.C.A. No. 182, when rejecting an unreasonable verdict argument made in a case that, like this one, turned on circumstantial evidence of identity, including strong evidence of motive, it was for the trier of fact to “determine whether the cumulative effect of this evidence – not simply its individual parts considered in isolation – excluded inferences other than guilt”: at para. 123 (emphasis in original). The trial judge fairly and thoroughly considered the circumstantial evidence, drawing inferences that were both available and reasonable, and concluding that the appellant was guilty of the offences charged after evaluating the evidence as a whole. I am not persuaded that no properly instructed trier of fact could have been satisfied that the appellant’s guilt was the only reasonable conclusion available on the evidence considered as a whole. Accordingly, I would reject the “unreasonable verdict” ground of appeal.
Disposition
78For these reasons I would dismiss the appeal.
Released: August 7, 2025 “K.M.v.R.”
“K. van Rensburg J.A.”
“I agree. Coroza J.A.”
“I agree. O’Marra J. (ad hoc)”