Court of Appeal for Ontario
Date: 2018-04-11
Docket: C60732 & C60731
Panel: Hoy A.C.J.O., Simmons and Pardu JJ.A.
Between
Her Majesty the Queen Respondent
and
Jordan Mendez and Shamaree Wilson Appellants
Counsel
Lance Beechener, Zachary Kerbel and Saman Wickramasinghe, for the appellants
Susan Magotiaux, for the respondent
Heard
February 14, 2018
Appeal
On appeal from the conviction entered on November 10, 2013 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury.
Decision
Pardu J.A.:
Introduction
[1] The appellants, Jordan Mendez and Shamaree Wilson, were convicted of the first degree murder of Joel Waldron.
[2] Joel Waldron was shot outside his home on February 26, 2011. He came outside just after receiving three calls, in brief succession, from a telephone number which could not be linked to either appellant or any other person. The last call was at 10:46 p.m. There was evidence at trial from which a jury could conclude the following:
The appellants were together at a baby shower nearby.
They moved together quickly on foot to the area of the victim's home, leaving the baby shower at about 10:47 p.m. (At 10:47:50 p.m., a video camera captured two figures running from the general vicinity of the baby shower towards the general vicinity of the victim's home.)
One of the appellants shot the victim three times, in the back of the head and in the back, very shortly after the victim left his house.
The non-shooter was somewhere in the area of the shooting.
They both fled the area where the shooting took place by foot. At 10:51:55, a video camera captured two figures running from the general area of the victim's home. At 10:55 p.m., the appellants arrived unexpectedly at the home of a former girlfriend of one of the men. The two had not been in contact for several years.
Both changed some of their clothing while there.
Wilson lied to police and said he and Mendez had been at the friend's house since well before the shooting.
The murder weapon was found in a recycling bin outside the friend's home.
[3] The Crown could not prove which of the appellants was the shooter, but argued that Waldron was lured out of his home by the phone calls and was ambushed, and both were guilty of first degree murder: one as the shooter and the other as an aider or abettor. Although the evidence reasonably established that the non-shooter was nearby at the time of the shooting, there was no direct evidence of a particular role, if any, he played in the killing. The Crown's position was that he was present in order to assist if required, and that by his presence he lent force to and encouraged the attack. The shooter, the Crown argued, intended to kill the victim, the non-shooter was in on the plan and shared the intent to kill and both the shooter and the non-shooter were guilty of first degree murder. It was common ground on appeal that the shooter had committed a murder.
[4] Because the Crown could not prove which role, if any, each of the appellants played, both appellants had to be acquitted unless the Crown could prove that the non-shooter aided or abetted the killing.
[5] The appellants advance multiple grounds of appeal. I agree that the charge to the jury did not relate the evidence to the issues of planning and deliberation in a balanced way. Because the trial judge also failed to relate the evidence to the necessary elements of aiding and abetting for either first or second degree murder, a verdict of second degree murder cannot be substituted for the verdict of first degree murder and a new trial is required. I do not agree that the verdict should be set aside as unreasonable and an acquittal substituted.
Instructions on Planned and Deliberate Murder
[6] After correctly describing the elements of planning and deliberation, the trial judge instructed the jury as follows:
It is up to you to say whether the murder of Joel Waldron was both planned and deliberate. To decide this issue, you should consider all the evidence. Among the things you should consider is the following:
The evidence that Joel Waldron received two phone calls shortly before he left his house;
The timing of the figures running across Neilson Avenue that I have already mentioned to you;
The evidence that would support the inference that Mr. Wilson acted jointly with Mr. Mendez to kill Mr. Waldron. This would include the evidence of their movements from the baby shower to Mr. Waldron's house and the video of the two figures running as well as the evidence of their movements together after the shooting;
The distance between the baby shower and the Waldron house;
The evidence of Chrysta Dixon that Mr. Wilson and Mr. Mendez were together at the baby shower, although she did not know if they arrived or left together and did not know what time they left;
The evidence that Mr. Wilson and Mr. Mendez were together after the shooting. [Emphasis added.]
[7] This relation of evidence to the issues was factually unbalanced because it largely listed items that favoured the Crown theory and because the trial judge did not deal with evidence tending to raise doubts about an intention to aid or abet a planned and deliberate murder, such as the following:
The appellants both knew the deceased, and there was no evidence of any ill feeling between them. There was evidence they had been friends.
There was no evidence that the telephone calls the deceased received from an unidentified number were associated with either of the two appellants.
There was no evidence of anything said by either appellant before they left the baby shower that would indicate the shooter was armed or intended to kill.
There was no evidence of any act on the part of the non-shooter, other than his presence in the general area, to show that he did something to assist the shooter.
The short lapse of time between the appellants' departure from the baby shower to the time of the shooting, less than 4 minutes, could undermine the Crown suggestion that the non-shooter knew of the shooter's intentions and intended to aid or abet a planned and deliberate murder. While some mutual object could be inferred from their departure from the baby shower together, the non-shooter may not have known of the shooter's plan to kill.
The disposal of the gun by one of the appellants in a place where it was likely to be found, and the unexpected arrival on the doorstep of a friend whom Wilson had not been in contact with for some time also suggest disorganization and a lack of planning and deliberation.
[8] This jury was not equipped with the tools to decide this case because of the trial judge's failure to relate the evidence to the necessary elements of aiding and abetting. The trial judge told the jury it could convict both the appellants on the ground that they were acting jointly. As I have said, she did not relate the evidence to the necessary elements of aiding and abetting, although, as the Crown agrees, conviction of both appellants of second degree murder or planned and deliberate first degree murder rested on a conclusion that the non-shooter did some act that helped or encouraged the shooter to kill, and did so knowingly with the intention of helping the shooter commit either murder or planned and deliberate murder: see R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148.
[9] The trial judge told the jury that it could consider the appellants' conduct after the shooting to determine whether they were acting jointly or in concert before or during the shooting. She defined active participation in the killing as either shooting or doing something for the purpose of aiding or abetting the killing. Rather than focusing the jury's attention on the issue of whether the Crown had proven the elements of aiding or abetting in relation to the non-shooter, she invited the jury to consider whether the killing itself was planned and deliberate and whether either individual accused participated in the killing by acting jointly with the shooter. While the instructions elsewhere in the charge correctly set out the elements of aiding and abetting, the instructions had the functional effect of telling the jury that if the shooting was planned and deliberate, and if the parties "acted jointly," both were guilty of planned and deliberate murder. This obscured the need to find proof of the elements of aiding or abetting, the act of assistance or encouragement, and the intention to assist or encourage a second degree murder or a planned and deliberate first degree murder.
[10] It is common ground that there was one shooter. In R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 71, the Supreme Court of Canada indicated that where one person holds the gun and pulls the trigger, the non-shooter's potential liability had to "flow, not through co-principal liability, but through aiding and abetting."
[11] At para. 67 of the same decision, the Supreme Court observed:
Where the cause of death could clearly only have been inflicted on the victim by one person, however, and there is no evidence of any other force being applied to the victim prior to death, then absent any other evidence, likely the only logical inference is that there exists only a single principal offender. The principles of criminal causation demand such a conclusion, as there cannot be said to be any other "significant contributing cause" to the death. In that situation, the potential of co-principal liability is eliminated.
[12] As noted in Pickton, at para. 69, "phrases such as 'concerted action', 'acted in concert', 'common design', 'participation in a common scheme' and 'joint participation' are phrases which properly capture the entire gamut of principal liability, co-principal liability and liability as an aider or abettor."
[13] The majority agreed that the trial judge in Pickton should have charged the jury on aiding and abetting, but dismissed the appeal because the evidence of the accused's guilt was overwhelmingly strong: Pickton, at para. 10.
[14] Here, the trial judge's instruction inviting the jury to consider whether the non-shooter was an "active participant" in the killing without relating the evidence to the elements of aiding and abetting in a balanced way had the potential to mislead the jury. It is by no means obvious that the non-shooter's presence in the general area where the shooting occurred amounted to assistance or encouragement or that the non-shooter intended to provide assistance or encouragement to the shooter by his presence.
[15] In some circumstances, synchronous movements of two individuals may lead to inferences about their intentions and the nature of their participation in the commission of an offence: see R. v. Carrington, 2017 ONCA 2, 346 C.C.C. (3d) 223. But, where conviction depends on aiding and abetting, the jury's attention must be focused on the necessary elements and the evidence must be related to those elements in a balanced way.
[16] Here, the weaknesses in the prosecution case on aiding and abetting were highlighted by the Crown's submissions to the jury:
There's also no evidence at the scene of the other person doing anything to aid or abet. But what's clear to you, ladies and gentlemen, is that person was there for that purpose if necessary. That's why they're going there. They're not an innocent bystander. This is a joint plan, a common enterprise.
[17] The jury was not equipped to assess those weaknesses. The trial judge did not focus the jury's attention on the absence of evidence of acts to aid or abet the shooter or on the evidence that pointed away from the existence of a joint plan or common enterprise.
[18] While trial counsel for the appellants did not object to the charge, this is not a conclusive factor. In the context of this circumstantial case, the trial judge's failure to relate the evidence to planning and deliberation in a balanced way, paired with her failure to relate the evidence to the necessary elements of aiding and abetting, was significant. The imbalance arose at a time when the trial judge was inviting the jurors to apply a narrowed focus to the issue, and relating the evidence to that issue. While the omitted matters I have referred were mentioned as part of the narrative of the evidence at other points of the charge, when the trial judge expressly related the evidence to the issues, it was factually unbalanced and was potentially misleading. It was crucial that this part of the charge be balanced because of the impact it would have had on the jury's focused consideration of the issues.
Unreasonable Verdict
[19] The appellants submit that convictions for first degree murder were unreasonable verdicts in this case.
[20] A verdict is unreasonable if "a properly instructed jury, acting judicially could not have come to that verdict": R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 30. See also: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.
[21] As described in R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28, an appellate court must give due weight to the advantage the jury had as trier of fact present throughout the trial, but on the other hand, must weigh the evidence through the lens of judicial experience:
The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.
On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh the evidence" and consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion reached by the jury". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.]
[22] There were some risks here of an unreasonable verdict. The trial judge correctly told the jury that the conduct of the appellants after the shooting could not be used to differentiate between murder and manslaughter. The appellants' flight and change of clothing, as well as Wilson's lie, were not inconsistent with an absence of an intention to aid or abet a murder, and could be consistent with some other explanation. This same conduct, in the circumstances of this case, while an essential part of the narrative, also had little probative value as to whether the non-shooter intended to aid or abet a planned and deliberate killing. In some circumstances, conduct after an event may be highly probative of planning and deliberation, as where for example, an accused comes to the scene of a killing armed with tools for disposal of a body, and uses those tools after the killing to in fact do so. Here, the flight and change of clothing and the lie after the event were not linked to behavior before the murder which would point to a direct logical inference of planning and deliberation. Judicial experience teaches that evidence of after the fact conduct "is a special brand of circumstantial evidence that carries a heightened risk of misapplication and prejudice": D. M. Paciocco, "Simply Complex Applying the Law of 'Post-Offence Conduct' Evidence (2016) 63 C.L.Q. 276. There is a risk that jurors might jump too quickly from after the fact conduct to guilt, particularly here, where the shooter is acknowledged to have committed a murder and the jury is invited to infer that the non-shooter by "acting jointly" with the shooter, aided or abetted a planned and deliberate murder.
[23] The appellants acknowledged to the trial judge however, in the course of the motion for a directed verdict of not guilty on first degree murder, that there was sufficient evidence to put second degree murder to the jury. This amounted to an acknowledgment that there was evidence from which a jury could conclude that the non-shooter did something with the intention of helping or encouraging the shooter to kill the victim. This concession is not conclusive, but is an important factor to be considered.
[24] Here, the question of what the non-shooter did and his purpose were central to both the question of whether the non-shooter aided a second degree murder or aided a planned and deliberate first degree murder. The synchronicity of movement towards the victim's home, the immediacy of the killing after he emerged from his home, the unlikelihood of coincidence in the immediacy of the killing just after the phone calls and the continued synchronicity of movement following the killing taken together, provide a basis upon which this jury could have convicted both appellants, concluding that one was the shooter and the other aided or abetted the killing. Although this was a weak case on aiding and abetting, I cannot conclude that this was a verdict which no properly instructed jury could have reached, and I would not substitute a verdict of acquittal.
Remedy
[25] The non-shooter's actions and intentions were intertwined both with whether the non-shooter aided and abetted a first or a second degree murder. In light of the failure of the trial judge to relate the evidence to the necessary elements for aiding and abetting, as well as the trial judge's failure to relate the evidence to planning and deliberation in a balanced way, the appropriate remedy for the deficiencies in the charge is to order a new trial.
[26] The appellants raise other grounds of appeal, including arguments that the trial judge erred in instructing the jury that it could consider a statement made by a third party in the presence of a police officer and Wilson, while Wilson remained silent, as an adoptive admission. The appellants argue Wilson was under no obligation to speak in the presence of a police officer. They argue further that the trial judge erred in instructing the jury that it could use Wilson's lie about his afternoon whereabouts to support a conclusion that he and Mendez acted jointly. I need not explore these arguments further, as the conclusions expressed above are sufficient to deal with this appeal. In considering the unreasonable verdict arguments, I have not considered this impugned evidence.
[27] I would quash the convictions for the first degree murder for each appellant, allow the appeal and order a new trial for both appellants.
"G. Pardu J.A."
"I agree Alexandra Hoy A.C.J.O."
"I agree Janet Simmons J.A."
Released: April 11, 2018
