Court File and Parties
COURT FILE NO.: CR-12-30000346-0000 DATE: 2019-08-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JORDAN MENDEZ Defendant
Counsel: Joshua Levy and Robert Fried, for the Crown Zachary Kerbel and Saman Wickramasinghe, for the Defendant
HEARD: July 24, 2019
REASONS FOR SENTENCE
B. P. O’Marra J.
OVERVIEW
1In the late evening of February 26, 2011, 20-year-old Joel Waldron was at home with his young son, Teshaun, his mother Yvonne, his sister Jade, his brother Johvan and a family friend. It was snowing heavily. Joel Waldron put his jacket on and said he was going out to buy some juice and would be back soon. Moments after he walked out of his home he encountered Shamaree Wilson and Jordan Mendez. Moments after that Johvan and Yvonne Waldron heard gunshots and went outside where they found Joel Waldron lying in the snow. He had been shot twice in the back and once in the back of the head. He died shortly thereafter.
2Shamaree Wilson and Jordan Mendez fled the area where the shooting took place. Shortly thereafter they arrived at the home of Shamaree Wilson’s former girlfriend a short distance away. The handgun that had fired the fatal shots was found by police in a recycling bin outside the former girlfriend’s home. Both Shamaree Wilson and Jordan Mendez changed their clothes at that residence. When the police arrived later that evening Shamaree Wilson lied to them as to when he and Jordan Mendez had arrived there. Both men were arrested shortly thereafter. Traces of gunshot residue were found on the hands of both men.
3Jordan Mendez and Shamaree Wilson were both charged with first degree murder. Both of them were found guilty as charged on November 10, 2013. On appeal by both accused a new trial was ordered on April 11, 2018.
4The retrial commenced on May 27, 2019. At the conclusion of the Crown’s case in chief I granted a defence application on behalf of both accused for a directed verdict on first degree murder. The trial continued on the charge of second degree murder.
5Both accused testified in their own defence. Jordan Mendez admitted that he had fired the shots that caused the death of Joel Waldron but claimed he acted in self defence and related to provocation. Shamaree Wilson admitted that he was present when the shots were fired but had no knowledge or intention to aid or abet any alleged crime by Jordan Mendez.
6On July 12, 2019 the jury found Jordan Mendez not guilty of second degree murder but guilty of the lesser and included offence of manslaughter. Shamaree Wilson was found not guilty.
7On July 24, 2019 I received evidence and heard submissions on sentence. These are my reasons for sentence.
POSITION OF THE PARTIES
8Jordan Mendez has been in custody since his arrest on February 26, 2011. The parties agree that as of the date of sentence he should receive a credit of 12 years plus 7.5 months based on his presentence custody.
9The Crown seeks a sentence of 16 years less credit for pretrial custody. The defence seeks a sentence of 8 to 9 years which would be time served based on the agreed credit for pretrial custody.
DISPUTED FACTS ON SENTENCE AFTER JURY VERDICTS
10Aggravating facts on sentence that are not admitted must be proven beyond a reasonable doubt. Criminal Code s. 724(3)(e).
11The failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. R. v. Smickle, 2013 ONCA 678 at para. 18.
12The Supreme Court of Canada addressed the issue of disputed facts on sentence after jury verdicts in R. v. Ferguson, 2008 SCC 6 at paras. 16 - 18 inclusive:
16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
17 Two principles govern the sentencing judge in this endeavor. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict [page 107] rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
- Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s.724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R.. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
13At paragraph 20, the court added that it is appropriate for the trial judge to consider the legal instructions to the jury in this process.
14Where the basis of the jury’s verdict is unclear, the sentencing judge should make his or her own independent determination of the facts, consistent with the jury verdict. R. v. Roncaioli, 2011 ONCA 378 at para. 59. The sentencing judge is not obliged to assume that the jury took “the most lenient path to conviction”. R. v. Nelson, 2014 ONCA 853 at para. 56.
THE ROUTE TO LIABILITY AND THE FACTUAL FRAMEWORK ON SENTENCE
15A brief overview of the events leading up to and following the death of Joel Waldron will suffice for the purposes of sentence.
16Jordan Mendez, Shamaree Wilson and Joel Waldron were all close in age and had grown up in the same neighbourhood. They knew each other and by all accounts had a good relationship. There was no evidence of bad blood or resentment between them preceding the events of February 26, 2011. Jordan Mendez had been in a youth detention centre for an extended time until his release on February 18, 2011. He had not spoken to Joel Waldron since late January 2008.
17In the late evening of February 26, 2011, Jordan Mendez and Shamaree Wilson went to a baby shower that Jordan Mendez had been invited to. Jordan Mendez and Shamaree Wilson testified that their plans for the evening were to go to the home of Shamaree Wilson’s baby mama after they left the shower. There was evidence that at the shower Jordan Mendez and Shamaree Wilson were asked to leave because certain people did not want them there. They left and planned to walk to the home of Shamaree Wilson’s baby mama. They chose to walk on paths and trails in the snow and avoided walking on any main streets. Jordan Mendez was out past his curfew and both did not want to have any contact with the police.
18Jordan Mendez and Shamaree Wilson walked until they came onto Blackwater Crescent. They both knew that Joel Waldron lived at 56 Blackwater but testified they had no plan or expectation of meeting Joel Waldron at or near that residence at that time.
19Jordan Mendez said that Shamaree Wilson was walking ahead of him as he stopped to tie up his shoe lace. Shamaree Wilson said he saw someone approach him from 56 Blackwater and thought it could be either Joel Waldron or his younger brother, Johvan. Shamaree Wilson realized it was Joel Waldron and they greeted each other with a high five and a hug.
20Jordan Mendez testified that he then heard Joel Waldron say to Shamaree Wilson “what are you doing with that snitch?” in a serious tone. Jordan Mendez and Joel Waldron approached each other. Jordan Mendez testified that Joel Waldron then accused him and his late mother (who had died years before) of telling the police where he was on a date in February 2008 when Joel Waldron had been arrested. Jordan Mendez testified that Joel Waldron accused him and his late mother of being rats or snitches, including course language related to his mother.
21Jordan Mendez testified that Joel Waldron then pulled a gun from his coat as he stood close to him and pointed it at his chest. He said he heard a click. Jordan Mendez then swatted the gun away from Joel Waldron and they both tried to retrieve it from the snow nearby. Jordan Mendez said he gained control of the gun and saw Joel Waldron cock his arm as if to throw a punch. Jordan Mendez turned to his left and with his right arm out behind him fired three shots. He claims he did not aim at Joel Waldron and continued to run away after the shots were fired. He met up with Shamaree Wilson and the two of them walked quickly to the home of a former girlfriend of Shamaree Wilson’s. Jordan Mendez testified that he removed the spent casings from the handgun and later tried to dispose of them as well as leaving the handgun in a recycling bin.
22Jordan Mendez specifically denied that he possessed this handgun before the encounter with Joel Waldron. There was at least circumstantial evidence for the jury to consider that he brought the gun to the scene of the encounter. A finding that he brought the gun to the scene would have significantly undercut his defence at trial and would have been powerful evidence of the intention required for murder.
23The jury was instructed that the onus was on the Crown to disprove self defence beyond a reasonable doubt. Failure to do so would lead to an acquittal. The jury was also instructed that if they were satisfied that self defence had been disproved they must go on to consider whether the necessary intention for murder had been proven beyond a reasonable doubt. The issue of provocation was also left with the jury, as well as the rolled-up charge that could lead to a finding of guilt for manslaughter.
24In terms of the route to liability for manslaughter and the factual parameters for sentence in this case, I make the following findings:
(1) While there is circumstantial evidence that Jordan Mendez may have brought the handgun to the encounter, I am not satisfied it has been proven beyond a reasonable doubt. In doing so I have applied the test set out in R. v. Villaroman, 2016 SCC 33, and also R. v. Al-Kazragy et al., 2018 ONCA 40.
(2) Various witnesses testified that within certain communities in Toronto, being accused or labelled as a snitch or rat can have serious negative consequences. They include threats, bodily harm or even death. Jordan Mendez denied he was a snitch and took particular offence to the notion that his late mother was called a snitch or rat in course terms by Joel Waldron. This evidence leads me to find that provocation was a significant factor in this incident.
(3) The jury rejected the notion of self defence. On his own version of events Jordan Mendez had sole and complete possession of the loaded handgun after swatting it out of the hand of Joel Waldron. Joel Waldron was shot twice in the back and once in the back of the head. He was unarmed when the shots were fired.
(4) The Crown declared at the outset of the trial and at the end that there was no evidence of a motive for this killing. That was not an essential element of the alleged offence but the lack of a motive tended to support the presumption of innocence. In my view the threatening and insulting words of Joel Waldron directed at Jordan Mendez before Jordan Mendez fired the shots played a significant role in what unfolded.
RELEVANT SECTIONS OF THE CRIMINAL CODE
Manslaughter
236 Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
VICTIM IMPACT
25Joel Waldron was 20 years old when he was killed. He was the father of a 3-year-old son named Teshaun.
26Victim Impact Statements were filed on behalf of five persons. I will refer to portions of each of their statements as follows:
(1) Yvonne Waldron – mother of Joel Waldron:
I was asked to write a victim impact statement and talk about how my son’s murder has impacted my life. A shorter answer would need the question how has Joey’s death not affected my life. Nothing has been the same. The day Joey died my life turned upside down and nothing has fallen into place since. My family chain has been broken piece of the link is missing. I have four other children to live for, to go through the day-to-day motions for but all I do is go through the motions. My four other children and Joey’s legacy give me a reason to go on each and every day.
Sometimes I feel like I should be getting over this, or on with my life so to speak because of the way fast paced society will make me feel like I’m stagnant, but the reality of it is that I can’t. Nothing in this world feels the same. Flowers don’t smell the same and the sun doesn’t shine the same, I have no appetite and eat only because I know I have to. Holidays, birthdays, BBQs, Joey’s birthday, his son’s birthday, every single day holds glimpses of my son and overwhelming emotions and grief.
My favourite memories of Joey are when we would just sit and talk, we’d spend hours sitting and talking together. He was a real momma’s boy. He was a great son, father, brother, and friend. He was a great nephew and cousin. For Joey, family always came first in his life. Joey’s smile would light up a room like no other. I look at my other four and their light is gone, their eyes are dim. This loss has impacted them profoundly. I look at my youngest child, he’s been unsettled, unfocused, and unable to concentrate. Johvan was not even 15 when he watched Joey die. He was just a kid. Joey was robbed of his life, his very existence. I have lost a piece of myself and the event robbed my other kids of their life as well as their youth. No child should have to see someone die, let alone their loved one. Johvan looked up to Joey, he was his brother his best friend and his confidante.
(2) The joint statement of Marie Bogle and Jacqueline Montaque (aunts of Joel Waldron):
By way of introduction, our names are Jacqueline Montaque, Marie Bogle and we are the aunts of Joel. Joel was taken away from us. His life ended way too early by a senseless act of violence. Whatever was the intention, it ended in terrible tragedy for our entire family.
However, we vow, in front of you, we will persevere, we will survive and together, we will raise Joel's son to become a good man. We are praying that our family will be happy again, we will follow our plans and realized our dreams we had with Joel. Joel will always be a happy part of our lives – we will continue to cherish the memories we have with him.
On behalf of our sister, Joel's mother, we will like to express the immense emotional pain she has gone through, since Joel's death.
Our entire family has been impacted from that terrible night. We have all suffered emotionally, and this has left us with varying degrees of post traumatic stress disorder. Occurrences of nightmares and flashbacks have us reliving the senseless killing of Joel over and over. The impact did not end there. Three months after my nephew Joel was killed the stress of the ordeal resulted in: extreme anxiety, extreme mental, psychological and physical health. Also, the death of Joel severely impacted the abilities of his older brothers and his younger brother to work and has taken all their livelihoods away. They have all changed dramatically.
His older brother was affected by schizophrenia, diabetes and that was brought on my the death of his younger brother, Joel. He has not been able to bounce back. Joel’s second eldest brother developed thyroid from the stress and went into a symptom called Storm where he did not know what he was doing and slit his throat and ended up in the emergency from too much stress due to the loss of his brother. Only a few months after the death of Joel this was the Doctor’s diagnoses.
Johvan also has stop developed mentally, physically and psychologically. He is literally lost and feels hopeless.
As for their mother Yvonne, my sister, she has stopped living. She does not eat, sleep, and her heart is broken. She gets severe panic attacks. She is not only broken from the death of Joel but also seeing and knowing her other children are broken and she’s not able to live fully in society breaks her even more so. Breathing is an issue for her. Caused by high anxiety, fear for her son’s life and her own life. She is hypervigilant of her surrounding. My family is riddled with trauma and continues to be.
I am afraid for my sister and her family. They are more like walking corpses. Their hearts and souls have been stolen, damaged and somewhat destroyed.
The financial hardship of the funeral for Joel and Yvonne and her family not having a home has set all of us back personally. As we are single persons, carrying our own individual household expenses, we have not been able to recover from this.
(3) Jade Anglin (sister of Joel Waldron):
Losing my brother has left a hole in our family. It will never be the same again. The loss of Joel has caused a lot of stress on me and my family. I have trouble sleeping at night and it hasn’t gotten any easier over the last 8 years.
It hurts me every day to think and know that my nephew will not be able to have his father in his life and get to know him the way we all did. I over think everything and find it difficult to trust anyone. It pains me to see my mother hurting and going through a rough time. We all lost something over this; a brother, a son and a friend over something so senseless.
(4) Kathleen Walker (close family friend of Joel Waldron):
The thing about the stages of grief is they are not meant for those who are grieving a death. The stages were developed for people who are terminally or chronically ill who are grieving their own lives. One cannot put a time frame, a standard, a process on how long it will take a mother to “recover” from the loss of her child. Losing a child would be like having a piece of yourself tom from you. You will adapt, you will have coping mechanisms and even tools you use to get through the day to day however you will never be the same. There is not a price you can put there is not a punishment that will ever bring our loved one back to us. Death is final.
BACKGROUND OF JORDAN MENDEZ
27Jordan Mendez is now 27 years old. He was 18 ½ years old when this crime was committed. He was raised by a single mother and never knew his father. He was in foster care for some period as a child and then returned to live with his mother in 2003. His mother died in 2008 when he was 15 years old. He is still devastated by her loss. Even at this stage he has the support of extended family, several of whom were in court when sentencing submissions were made. The plan is that when he is released he will move to live with a family member in northern Ontario, far from the violence and bad influences of certain parts of Toronto.
28He plans to complete his education. He has completed grade 11 while in custody on this charge.
THE CRIMINAL RECORD OF JORDAN MENDEZ
2005-08-19 Toronto, ON (Youth Justice Court) Possession of property obtained by crime under $5000 Probation 6 months
2006-10-05 Toronto, ON (Youth Justice Court) (1) Uttering threats, s. 264.1 (2) Assault, s. 266 (2 charges) (3) Fail to comply with recognizance, s. 145(3) (1-3) Probation 24 months on each charge concurrent
2008-02-04 Toronto, ON (Youth Justice Court) (1) Possession of a prohibited or restricted firearm with ammunition, s. 95(1) (2) Careless use of a firearm, weapon, prohibited device or ammunition, s. 86(1) (1-2) Probation 18 months on each charge concurrent and mandatory prohibition order, s. 51(1) YCJ Act
2009-01-13 Coburg, ON (Youth Justice Court) Assault with a weapon, s. 267(a) 50 days and 25 days under supervision in the community and probation 1 year and discretionary prohibition order, s. 51(3) YCJ Act for 2 years
2009-10-21 Toronto, ON (Youth Justice Court) (1) Carrying concealed weapon, s. 90 (2) Possession of a prohibited or restricted firearm with ammunition, s. 95(1) (1-2) 16 months and 8 months under supervision on each charge concurrent and mandatory prohibition order, s. 51(1) YCJ Act
2011-08-29 Toronto, ON Assault, s. 266 Suspended sentence and probation 2 years (7 days pre-sentence custody)
SENTENCE RANGE FOR MANSLAUGHTER
29The maximum potential sentence for manslaughter is life imprisonment. The mandatory minimum sentence of four years where a firearm is involved takes such cases into the upper range of potential sentence.
30I have reviewed the helpful Books of Authorities filed by Crown and defence. Both sides have presented cases that accurately reflect the proper range for this case bearing in mind the applicable sentencing principles for this offender and this offence. The Crown filed cases with sentences ranging up to 15 and 16 years. The defence filed cases with sentences ranging between 6 and 10 years.
31There are certain aggravating circumstances that take this sentence into the higher end of the spectrum. These include the following:
(1) The use of a firearm.
(2) The number and location of wounds to the victim.
(3) The criminal record, including two prior convictions for possession of a prohibited or restricted firearm with ammunition. He committed this offence eight days after being released from serving a sentence related to a concealed weapon that was a prohibited or restricted firearm and ammunition.
(4) Jordan Mendez was subject to a prohibition order related to firearms when he held and fired the handgun causing the death of Joel Waldron.
(5) The extended Waldron family and friends have been shattered by the violent death of Joel Waldron on February 26, 2011. The loss is felt keenly all these years since. They have lost a father, a son, a brother, a nephew and a friend.
(6) The personal antecedents of Jordan Mendez reflect a need for specific deterrence related to the possession of illegal firearms.
(7) There is a need for courts to reflect denunciation and general deterrence for crimes involving death or injury caused by the use of firearms.
ANCILLARY ORDERS
(1) Pursuant to s. 487.051 of the Criminal Code there will be an order for a DNA sample.
(2) Pursuant to s. 109 of the Criminal Code there will be a weapons prohibition order for life.
(3) Pursuant to s. 743.21 of the Criminal Code there will be an order that Jordan Mendez not communicate directly or indirectly with any member of the extended family of Joel Waldron during the custodial period of his sentence.
RESULT: Jordan Mendez is sentenced to 15 years less credit for pretrial custody of 12 years, 7.5 months. Going forward that leaves a further term of 2 years, 4.5 months.
B. P. O’Marra J.
Released: August 2, 2019