COURT FILE NO.: CR-14-40000523-000
DATE: 20180309
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DON JOHNSON
Applicant
Sheila Cressman and Daniel DeSantis, for the Crown
Dirk Derstine and Tania Bariteau, for the Applicant
HEARD: December 20, 2017, January 8, 10 and 11, 2018
B. P. O’Marra, J.
RULING ON AN APPLICATION FOR DIRECTED VERDICTS
THE APPLICATION
[1] Don Johnson was arrested and charged with two counts of first degree murder on May 28, 2012. He was committed for trial after a Preliminary Hearing in 2014. His first trial ended in a hung jury in 2015. The second trial began in November 2017. At the conclusion of the Crown’s case in chief he applied for directed verdicts on both counts. On January 11, 2018 I dismissed those applications with reasons to follow. The trial is now completed. These are my reasons.
THE TEST ON A MOTION FOR A DIRECTED VERDICT
[2] In R. v. Kelly, 2017 ONCA 920, at para. 19 the court referred to the well-established test on such a motion:
When the defence moves for a directed verdict of acquittal at the end of the Crown’s case, the trial judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict. In performing that task, the trial judge does not make findings of fact or credibility, but considers whether a reasonable jury, properly instructed, could, on the entirety of the evidence, favourable and unfavourable to the accused, conclude that the Crown has established guilt. The trial judge must view the evidence in the reasonable light that is the most favourable to the Crown: R. v. Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21, 29-32, R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 6-9.
[3] In R. v. Tello, 2018 ONSC 385, at para. 4 Justice Kenneth Campbell addressed the test where the Crown’s case depends in whole or in part on circumstantial evidence:
The law is well-settled that on a directed verdict motion brought by an accused at the close of the Crown’s case, the limited responsibility of the trial judge is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. The legal standard applies on all applications for a directed verdict, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, on any such motion the trial Judge must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact – in this case, the jury. See United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172, at p. 174; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at paras. 2-4.
[4] The task of the trial judge is somewhat more complicated in cases involving circumstantial evidence as the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. The judge asks only “whether the evidence, if believed, could reasonably support an inference of guilt”: see Arcuri, at paras. 23 and 25-32; R. v. Pannu, 2015 ONCA 677, 127 OR (3d) 545, at para. 159; R. v. Kanagasivam, 2016 ONSC 2545, [2016] O.J. No. 1933, at paras. 10-11.
[5] The inferences to be drawn from the circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left to the trier of fact. See Tello, at para. 7; R. v. G.W. (1996), 1996 CanLII 427 (ON CA), 93 O.A.C. 1 (Ont. C.A.), at para. 62; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (Ont. C.A.), at paras. 37-41; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (Ont. Sup. Ct.), at paras. 18-22.
[6] At the directed verdict stage, the trial judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. It is irrelevant that the evidence also supports inferences inconsistent with guilt: see Jackson, at para. 7. The rule in Hodge’s Case (1838) 1838 CanLII 1 (FOREP), 168 E.R. 1136 has no application at the directed verdict stage of a criminal trial: see Tello, at para. 9. However, the jury cannot be invited to draw “speculative or unreasonable inferences”: see R. v. Figueroa, 2008 ONCA 106, 232 CCC (3d) 51, at para. 35.
OVERVIEW OF THE CROWN’S CASE
[7] The Crown presented its case in chief over the course of several weeks commencing on November 22, 2017 and concluding on January 10, 2018. There is no direct evidence that Don Johnson caused the deaths of the two victims. The defence submits there is no evidence of motive or animus toward either victim. Indeed the defence refers to evidence of the close relationship and friendship between Don Johnson and the two victims. The defence further submits that the after the fact conduct is equivocal and relates to Don Johnson’s involvement in a joint robbery plan that went terribly wrong and ended with the deaths of his two friends.
[8] In this circumstantial case there are competing inferences that could reasonably be drawn from the various pieces of evidence. It is not necessary on a directed verdict motion to set out the various competing inferences. A brief overview of the evidence will suffice for this ruling.
[9] Shortly before 4:00 p.m. on February 20, 2012 Justin Waterman, age 19 and his brother Jerome, age 22, were found shot to death at the bottom of a stairwell near a locked door to the underground garage of an apartment building at 325 Bogert Avenue in Toronto. Don Johnson was a long-time friend of both brothers but was particularly close to Justin. The three of them and other associates were involved in a criminal lifestyle that included thefts, possession and trafficking in drugs and robberies of other drug dealers. Don Johnson’s mother lived in an apartment at 325 Bogert in February 2012. Don Johnson would routinely sleep over at her apartment.
[10] The Crown’s case included numerous video clips from cameras at various locations inside and around 325 Bogert. There were two significant video clips of hallways inside 325 Bogert in the afternoon of February 20, 2012. At 3:19 p.m. Don Johnson, Justin and Jerome and a fourth man are seen walking towards a camera before turning into the area where the bodies of Justin and Jerome were later found. At 3:40 p.m. Don Johnson and the fourth man are seen running down the hallway away from the area where Justin and Jerome had been shot.
[11] Justin and Jerome both died of gunshot wounds. More shots were fired at Justin than Jerome. Forensic analysis of shell casings and bullets found at the scene linked the shots to a handgun found three months later by Peel Police hidden in a chimney in a house in Mississauga. There was an agreed statement of fact that the person who lived there was unconnected to Don Johnson, Justin and Jerome and had never been to 325 Bogert.
[12] The defence elicited evidence from Crown witnesses, as well as from cell phone records and text messages, that showed the close friendship between Don Johnson and the two victims up to and including the date of the homicides.
[13] The Crown referred to events on January 2, 2010 as the genesis of a motive for Don Johnson to seek lethal revenge against Justin Waterman. On that day Don Johnson was driving a stolen car with Justin in the front passenger seat. After a short police pursuit their car crashed and they fled on foot. They were both arrested after a brief foot chase. A shotgun was found under the front seat. At the police station they were interviewed in separate rooms. Each denied possession of the shotgun and blamed the other. Justin provided further information to the police in a video statement. He told police that Don Johnson was planning to do an armed robbery of a marijuana grow house with the shotgun. The police then confronted Don Johnson with this further allegation. Don Johnson faced an additional charge of conspiracy to commit robbery based on the information provided by Justin.
[14] Justin Waterman was released on bail and all charges against him were later withdrawn. Don Johnson remained in custody for 139 days until May 19, 2010 when he pleaded guilty to charges including possession of the shotgun. He was released on bail pending sentence. On June 28, 2010 he received credit for 139 days of pre-sentence custody and was placed on probation. The charge of conspiracy to commit robbery was withdrawn.
[15] Jerome Waterman had a criminal record including two convictions for robbery in 2011. One incident involved Jerome and an accomplice robbing an employee of Tim Hortons as he carried the night deposit bag containing $1900 in cash to a bank. The other incident involved Jerome and an accomplice robbing a victim of $350 cash and his wallet. Violence was used during the robbery.
[16] The Crown’s case included the evidence of Sgt. Gavin Jansz of Toronto Police Service. He was permitted to give opinion evidence as an expert in areas including the “code of silence.” That refers to the pervasive understanding in the criminal subculture that there will be varying degrees of retribution or revenge against persons who “rat” or “snitch” on others to the police. Providing information to the police about another person that the police would otherwise have no knowledge of would be a serious breach of the code. The fact that the person providing the information is a close friend of the other is even more egregious.
[17] Between his release from jail on May 19, 2010 and January 9, 2012 Don Johnson was periodically arrested and jailed for other offences. After his release on January 9, 2012 he spent most nights in his mother’s apartment at 325 Bogert and other nights with his girlfriend, other friends or his father who lived separate from his mother.
[18] In February 2012 Don Johnson renewed his connections to Justin and Jerome. Text messages from Don Johnson in the days preceding February 13, 2012 could reasonably be interpreted as plans for a robbery of a drug dealer that would involve Don Johnson, Justin and Jerome. In a text message on February 10, 2012 Don Johnson indicated the following:
“I hav a eat for a few stacks n piff, its one nigga, easy ting get ur bro . . this eat is only between us 3.”
[19] This message and many others in this case includes urban language and coded language. The latter refers to words and phrases used by members of the criminal subculture to hide the true meanings of messages from the police. Sgt. Jansz was also qualified to give opinion evidence as an expert in those areas. Based on his evidence and the context of the above message it could reasonably be interpreted as Don Johnson planning a robbery of a drug dealer that would involve himself, Justin and Jerome only.
[20] On February 13, 2012 there are video clips of Don Johnson with Justin and Jerome in various hallways inside 325 Bogert. In one clip Don Johnson is seen alone looking around and walking in the general direction of where the two victims were shot a week later. The Crown submits this is evidence that he is scouting the location for the homicides. There are text messages that day between the three of them that appear to relate to a robbery. In one video clip that afternoon Don Johnson is seen alone in the lower level looking around. At one point he extends his arms straight out as if pointing something. He then turns and lowers his right arm by his side. The Crown submitted that Don Johnson was holding a gun in his hands and rehearsing what will happen a week later. The Crown also submitted that Don Johnson led Justin and Jerome through various areas at 325 Bogert to gain their confidence by setting up a robbery at that location. None of the video clips at various locations in and around 325 Bogert appear to show Don Johnson, Justin or Jerome meeting a drug dealer. It is unclear whether any robbery actually took place that day.
[21] Justin’s girlfriend testified that in the days before February 20, 2012 she knew that there was discussion of Justin and Jerome doing a robbery with Don Johnson. The plans kept falling through but Justin still believed it would happen. The plan was to rob a white guy. She received a phone call from Justin at about 6:00 p.m. on February 19, 2012. Justin said he was going to see Mischief (Don Johnson) “to do that thing” and be back at 8:00 p.m.
[22] Justin was with Don Johnson in the late hours of February 19, 2012, the night before the homicides. Based on text messages and the viva voce evidence of Justin’s girlfriend she was anxiously contacting Don Johnson to see if he knew where Justin was. She had expected him home by 8:00 p.m. Don Johnson falsely told her by text that he did not know where Justin was. Don Johnson shortly thereafter sent a text to his girlfriend telling her not to say Justin was with him if she was asked. At the end of that message he texted “and erase our text msgs.” Don Johnson seemed frustrated and angry that Justin’s girlfriend kept pestering him looking for Justin.
[23] In the early hours of February 20, 2012 Don Johnson sent text messages to his friend Joel Edwards that included the following:
“These r tz are hard to cach family”.
Shortly thereafter Don Johnson sent a further text to Joel Edwards saying “dele this convo.”
[24] The Crown submits that r tz was a reference to “rats” or snitches are hard to catch. It was suggested to Sgt. Jansz in cross examination that the phrase referred to “ratchets,” a misogynistic word that referred to “ghetto girls” and that “hard to cach” refers to “hard to control”. Counsel suggested that in context the phrase referred to Justin’s girlfriend and not to Justin as a “rat” or snitch. Sgt. Jansz testified that “ratchets” in reference to women is urban language but not codified language. He did not agree that it was a well-known term. He testified that it is used now more commonly than when he testified at the first trial in 2015. He did not agree that “hard to catch” is codified language or that it meant “hard to control.”
[25] In the morning of February 20, 2012 there are messages from Don Johnson to Jerome that may reasonably be interpreted as referring to a planned robbery involving Don Johnson, Jerome and Justin, including the following: “Quik money ting yo get ur bro.” A later message from Don Johnson to Jerome indicates as follows: “A yutes comin to buy a ting he has da loot stik up ting in basement.” The Crown submits this refers to a guy coming with money to buy a gun but he will be robbed instead in the basement.
[26] In the afternoon of February 20, 2012 there are the two video clips that show Don Johnson with the victims before the shooting and then running away from the scene of the shooting twenty minutes later. At 3:19 p.m. Don Johnson, Justin and Jerome and a fourth man are walking in the basement area of the apartment building where there are no visible security cameras. The four men proceed down a hallway that leads to the underground parking garage, the door to which is locked. Justin and Jerome were shot there multiple times.
[27] At 3:40 p.m. Don Johnson and the fourth man are seen on video running down the hallway away from the area where the victims had been shot.
[28] There is evidence of conduct by Don Johnson after the shootings that could relate to his involvement in the homicides or to some other reason (i.e., a planned robbery that went very wrong). These actions include the following:
Don Johnson is on video running away from the scene of the shooting.
From February 4 to 20, 2012 Don Johnson was using a cell phone #0299. The last outgoing call on that phone was on February 20, 2012 at 2:03:10 a.m. The last text message was at 15:06:07. The last BBM from that phone was at 3:13 p.m. to Don Johnson’s girlfriend. He started using a different phone after the time of the shooting.
On February 22, 2012 Don Johnson mentions in a text message to his father that he has the money to pay for a flight to Israel and suggests arranging it for the weekend. Don Johnson had dual Canadian/Israeli citizenship. He did not in fact take further steps to flee Canada.
Police executed search warrants after the fact on residences associated to Don Johnson. Among the items they looked for was a distinctive Dodgers jacket that Don Johnson is seen wearing in relevant video clips. The jacket was never located. The Crown submitted that Don Johnson disposed of the jacket before it could be recovered.
ANALYSIS
[29] There is direct evidence that Don Johnson had the opportunity to kill the victims. Shortly before the killings he is on video walking with the two victims and a fourth man in a basement hallway heading towards the area where the victims were later found. Twenty minutes later Don Johnson and a fourth man are seen running away from the location where the victims were shot.
[30] Motive is not an essential element to be proven by the Crown. Evidence of motive is relevant and admissible. Proven motive may be important on issues of identity and intention where the evidence is circumstantial. Proven absence of motive is a factor that weighs in favour of the accused. Motive is always a question of fact: see Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821; R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 64. There must be a logical connection between the circumstances said to give rise to the motive and the crime itself: see R. v. Johnson, 2015 ONSC 5974, at para. 77. Evidence of motive makes it more likely that the accused committed the crime: see R. v. Roncaioli, 2011 ONCA 378, 271 CCC (3d) 385, at para. 43.
[31] In a prosecution for murder, evidence of motive or animus is relevant to prove the identity of the killer and the state of mind that accompanied the killing: see R. v. Salah, 2015 ONCA 23, 319 CCC (3d) 373, at para. 65; R. v. Candir, 2009 ONCA 915, 250 CCC (3d) 139, at para. 51, leave to appeal to SCC refused, [2012] SCCA No. 8; R. v. Luciano, 2011 ONCA 89, 267 CCC (3d) 16, at para. 65.
[32] In the present case the Crown submits that the motive to kill Justin related to his breach of the code of silence against Don Johnson on January 2, 2010. There is no dispute that Justin provided information to the police against Don Johnson that referred to an alleged offence being planned by Don Johnson. Sgt. Jansz testified about the code of silence and the potential for revenge based on a breach of the code. It will be an issue of inference drawing whether Don Johnson’s text message on the eve of the killing, “These r tz are hard to catch” referred to “rats” or snitches and related to Justin or to something else. It is for the jury to consider, based on all the circumstances, whether a motive has been proven in relation to Justin.
[33] The Crown submits that if the jury finds there was a motive to kill Justin there would also be a reason or motive to kill Jerome. Don Johnson knew how close the two brothers were, including in their criminal activity. He also knew that Jerome had a propensity for violence. If Don Johnson were to kill Justin he would anticipate that Jerome would seek vengeance for his brother’s death. This also is an issue of fact and inference drawing for the jury based on all the circumstances.
[34] In video clips dated February 13, 2012 Don Johnson is seen in various locations within 325 Bogert with Justin and Jerome. In one video clip Don Johnson is alone and extends his arms out as if pointing something. He then puts his right arm down by his side. The Crown submits that he is holding a firearm in those images. If the jury finds that he was holding a firearm it is evidence that he had access to the type of weapon used to kill Justin and Jerome in that building one week later. This is a question of fact for the jury.
[35] There are competing potential inferences to be drawn from various aspects of the circumstantial evidence. It would be open to the jury to reasonably find the following:
That Don Johnson had a motive or reason to kill Justin and Jerome.
That Don Johnson lured Justin and Jerome to 325 Bogert with the intention of isolating them and leading them to an area where they would have no escape route.
Don Johnson appears on video with Justin and Jerome and a fourth man shortly before the shooting heading towards where the victims were later found. Don Johnson and the fourth man are seen on video running away from the scene after the shooting.
Certain actions taken by Don Johnson after the fact may be viewed as related to his involvement in the killings, or to another reason. It will be for the jury to determine what inferences should be drawn from that evidence.
[36] The totality of the direct evidence and inferences that could reasonably be drawn from the circumstantial evidence provides the basis on which the jury, acting reasonably, could find that the essential elements of the offences have been proven beyond a reasonable doubt.
RESULT
[37] The application is denied.
B. P. O’Marra J.
Released: March 9, 2018
COURT FILE NO.: CR-14-40000523-000
DATE: 20180309
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DON JOHNSON
RULING ON AN APPLICATION
FOR DIRECTED VERDICTS
B.P. O’Marra, J.
Released: March 9, 2018