Court of Appeal for Ontario

Date: February 17, 2017 Docket: C54901

Justices: Sharpe, Rouleau and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Aundre Pierre Appellant

Counsel

Erin Dann and Eric Neubauer, for the appellant Benita Wassenaar, for the respondent

Heard: January 31, 2017

On appeal from: The conviction entered on September 2, 2011 by Justice G. Pardu of the Superior Court of Justice, sitting with a jury.

Decision

BY THE COURT:

[1] The appellant was convicted by a jury of second degree murder. He appeals his conviction on two grounds: (i) that the trial judge erred in rejecting his request to admit evidence with respect to an alternate suspect; and (ii) that the trial judge erred by instructing the jury that participation by aiding was a basis for culpability.

[2] Daniel DaSilva was a drug dealer. He was shot in the front seat of his car while parked near Keele and Eglinton in Toronto. DaSilva died of his injuries within minutes of the gunshot. Filipe Rasteiro had been in the front seat with DaSilva but managed to escape. Rasteiro told police there were two male perpetrators. He was able to provide a description of one of the men who he said was in the rear passenger seat with a black gun. Rasteiro recognized him from the Don Jail and identified him in a photo line-up as the appellant. Cell phone records showed telephone communications between the appellant and DaSilva in the time period leading up to the shooting.

[3] The theory of the Crown was that the appellant had arranged a drug deal with DaSilva and then entered the back seat of DaSilva's car with an unidentified person. After the drugs were handed over, the appellant and the other person pulled out guns. Both of them fired shots at DaSilva, intending to kill him or cause serious bodily harm knowing it was likely to cause death.

[4] The gun used to kill DaSilva was found about three months after the shooting in the possession of another person in Ajax, Ontario. The appellant sought to introduce evidence at trial that the gun had been found in someone else's possession. The Crown objected and the appellant brought the alternate suspect application.

[5] Detective Sansom testified at the voir dire. He knew of no evidence linking the alternate suspect to DaSilva or to the geographical location of the crime. He stated that: the proposed alternate suspect was associated with a gang called H Block; the appellant had been associated with a gang called Five Point Generals; there were no cell phone records putting the alternate suspect near where the killing took place and no cell phone contact between the alternate suspect and the deceased.

[6] Detective Backus was qualified to provide expert evidence about gang culture. He testified that it would be extremely rare for a gang member to retain a gun that had been used in a crime.

[7] The appellant submits that the trial judge erred in rejecting the application to admit alternate suspect evidence. He submits that there was a sufficient connection between the proposed alternate suspect and the commission of the offence because of the possession of a murder weapon. Further, he argues that the trial judge's analysis assumes that the appellant was involved in the shooting.

[8] We disagree.

[9] The test for admission of alternate suspect evidence was not in dispute: the third person must be sufficiently connected to the crime to give the proffered evidence some probative value: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-48. The only evidence linking the alternate suspect to the crime was the possession of the gun. It was open to the trial judge to conclude on the basis of all of the evidence that the possession of the gun three months after the shooting in the context of the case had almost no probative value on the issue of the identity of the shooter and that admitting the alternative suspect evidence would unnecessarily complicate the trial. The context of the case before the trial judge included the identification evidence of Rasteiro, the cell phone records and the security video. By contrast, absent the gun possession, there was no evidence linking the alternate suspect to DaSilva. The trial judge accepted the expert evidence regarding the practices of gang members in relation to guns used to commit crimes. She was entitled to find that possession of the gun three months after the crime was not probative of the alternate suspect's connection to the crime and that therefore, the proposed alternate suspect evidence failed to reach the standard required for admissibility.

[10] The trial judge's reasons do not reflect the assumption that the appellant was involved in the killing. On the contrary, her reasons focus on the connection between the proposed suspect and the crime.

[11] The trial judge instructed the jury on party liability including joint principals, common purpose and aiding. The appellant submits that the charge on aiding should not have been included as there was no evidence that the appellant assisted someone in the commission of the offence with the requisite knowledge that the shooter intended to commit murder.

[12] The judge's charge to the jury with respect to aiding is set out in more than one section of the charge. First, it states:

If [the appellant]:

1. Knew that someone else intended to kill Daniel DaSilva; [and]

2. Did something intentionally to help the other person kill Daniel DaSilva

[the appellant] is an aider of the murder and equally guilty of it.

[13] Later in the charge when discussing the state of mind required for murder, the trial judge described the components of aiding:

For an unlawful killing to be a murder, Crown counsel must prove one or more of the following states of mind:

3. [The appellant] aided the commission of the killing as defined in this charge, in that [he] knew that someone else intended to kill Daniel DaSilva, and [he] did something with the intention of helping that other person kill Daniel DaSilva [or]

4. [The appellant] was a party to a joint common purpose as defined in this charge, in that the Crown has proven that:

a. [The appellant] and another person agreed they would do a drug deal or a robbery and help each other do so,

b. The killing of Daniel DaSilva occurred in the course of their drug deal or robbery, and

c. [The appellant] knew that the other person would probably kill someone in the course of carrying out their original agreement.

[14] Still later in the charge the trial judge said: "To convict someone of first degree murder, Crown counsel must prove that that person is an active participant in the killing."

[15] The Decision Tree led the jury on the following path for second degree murder:

1. The appellant entered the car;

2. The appellant did "some act" that contributed to the death;

3. The appellant caused the death unlawfully;

4. The appellant had the state of mind required for murder.

[16] The jury was told that they had to be satisfied beyond a reasonable doubt of these elements for there to be a verdict of second degree murder.

[17] The jury instructions, together with the Decision Tree, made it clear that the appellant had to be a principal or a joint principal with the requisite mental state to be convicted of second degree murder. Although the references to "aiding" may have been unnecessary, the jury charge read as a whole would not have misled the jury.

[18] The appeal is therefore dismissed.

Released: February 17, 2017

"Robert J. Sharpe J.A." "Paul Rouleau J.A." "M.L. Benotto J.A."