COURT FILE NO.: CR-12-30000346-0000

DATE: 20190808

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JORDAN MENDEZ and SHAMAREE WILSON Applicants

COUNSEL: Joshua Levy and Robert Fried, for the Respondent Zachary Kerbel and Saman Wickramasinghe, for the Applicant Jordan Mendez Gabriel Gross-Stein, for the Applicant Shamaree Wilson

HEARD: June 18 and 19, 2019

RULING ON APPLICATIONS FOR DIRECTED VERDICTS B. P. O’Marra J.

OVERVIEW

[1] The applicants are jointly charged with the first degree murder of Joel Waldron on February 26, 2011. Mr. Waldron was shot once in the back of the head and twice in the back after leaving his house at around 10:50 p.m. The two accused were arrested shortly thereafter at a nearby house. The handgun that fired the shots was found in a recycle bin outside the residence where the two accused were found.

[2] The trial commenced on May 27, 2019 with pretrial applications. The Crown’s opening to the jury was on June 6, 2019. The Crown’s case in chief was closed on June 18, 2019. On that day the applicants applied for directed verdicts of acquittal on both first and second degree murder. They acknowledged there was sufficient evidence to go to the jury on the included offence of manslaughter.

[3] On June 19, 2019 I ruled that there should be directed verdicts for both accused on first degree murder. The trial would then proceed on second degree murder for both accused. The trial was completed on July 12, 2019. These are my reasons for the ruling.

THE EVIDENCE

[4] The following is a summary of the evidence relevant to these applications:

• Mr. Mendez, Mr. Wilson and Joel Waldron had known each other for many years.
• Mr. Mendez and Mr. Wilson were at a baby shower at 77 McClure Crescent on the evening of the shooting. This address was within 5 to 10 minutes’ walking distance from the residence of the deceased at 56 Blackwater Crescent.
• Mr. Mendez and Mr. Wilson were asked to leave the baby shower and they did so.
• A video camera at the intersection of Nielson and Sheppard, which is between the location of the shower and the residence of the deceased, captures two figures running from the general direction of the party to the general direction of the home of the deceased about 3 to 5 minutes before the deceased was shot.
• The deceased was shot moments after leaving his home. He said he was going out to buy some juice.
• The gunshot wounds consisted of one wound to the back of his head and two to his upper back.
• Two figures were seen running from the area of the shooting down a pathway from Blackwater Crescent to Sheppard Avenue, immediately after the gunshots.
• The two figures captured on the video were running in the general direction of a walkway from Sheppard Avenue to Coltman Crescent.
• Two figures were seen by a witness running down the pathway to Coltman Crescent after the shooting.
• Footprints in freshly fallen snow were seen by police and appeared to veer from the sidewalk on Coltman Crescent, over a fence, through two backyards and to the front door of 2 Coltman Crescent.
• The two accused arrived at 2 Coltman Crescent within about 5 minutes of the shooting.
• The two accused changed some of their clothing at that residence.
• The handgun that fired the shots was found in the recycle bin outside 2 Coltman Crescent.
• Shamaree Wilson lied to the police as to when he and Jordan Mendez had arrived at 2 Coltman Crescent when the police spoke to him shortly after they had arrived there.
• Both accused were arrested shortly thereafter.
• Samples for forensic testing were taken from the hands of both accused shortly after they were arrested. A qualified expert testified that nine particles of gunshot residue was obtained from the right hand of Jordan Mendez. Three particles of gunshot residue were obtained from the right hand of Shamaree Wilson in the web between his thumb and finger. Gunshot residue is produced when a firearm is discharged. It can deposit on persons standing nearby as well as on the shooter. There could be a deposit from a fired gun on a person standing up to ten feet to the left or right of the shooter and could do so at a further distance. Studies have been done with bystanders standing three or four feet to the left or right of the shooter, or behind the shooter. Under controlled circumstances they determined that a bystander could have three particles on their hands.
• There was no evidence of animus or motive between either Jordan Mendez or Shamaree Wilson and Joel Waldron.
• Counsel for the applicants conceded there was evidence upon which the jury could conclude the following:

(i) The two accused were the persons seen on the video footage; (ii) Both accused were present at the scene or in the vicinity of the shooting; (iii) One of the accused fired the shots that killed Joel Waldron; and (iv) There was one shooter. There is no evidence as to which of the two accused fired the shots.

POSITION OF THE PARTIES

[5] The applicants submitted that there was no basis upon which the jury, acting reasonably and properly instructed, could find that either or both accused intentionally caused the death of Joel Waldron, or that such an intentional killing was both planned and deliberate. The after-the-fact conduct of both accused could be considered as involvement in an unlawful act. This after-the-fact evidence could not be used by the jury to elevate manslaughter to murder.

[6] The applicants submit that in this case where there is no evidence as to which accused fired the shots there is no evidence as to what the other may or may not have done as an aider or abettor to murder or first degree murder.

[7] The Crown submits that the combined circumstantial evidence supports the inference that both accused were involved in an intentional killing and that it was both planned and deliberate.

THE LAW

[8] In determining whether there is sufficient evidence to go to a jury, a trial judge must apply the same test as is applied by a preliminary inquiry judge in determining committal for trial. That test, as articulated in United States v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.), is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

[9] The test for a directed verdict is the same whether the evidence is direct or circumstantial.

[10] The Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, held that where the Crown’s case on an essential element of the offence relies wholly on circumstantial evidence the judge must engage in a ‘limited weighing’ of the evidence as a whole to determine whether, if the evidence is believed, it would be reasonable to infer guilt. The limited weighing is not a weighing of the reliability or credibility of the evidence, but an assessment of the reasonableness of the inferences to be drawn from the evidence.

[11] Ducharme J., in R. v. Munoz (2006), 2006 3269 (ON SC), 205 C.C.C. (3d) 70, (Sup.Ct.) explained the process of limited weighing as follows:

This limited weighing means that inferences to be drawn from circumstantial evidence need not be ‘compelling’ or even ‘easily drawn’ in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve .... If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary hearing is required to draw it.

[12] As pointed out by Hill J. in R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), at paragraph 11: “It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation.”

[13] The process of drawing inferences from evidence is not the same as speculating even when the circumstances permit an educated guess. The trier of fact will assess evidence in the light of common sense and human experience, but neither are a substitute for evidence: R. v. Huynh, 2005 34563 (ONCA), at para. 7.

[14] The law with respect to planning and deliberation was summarized by Archibald J. in R. v. Newman, [2010] O.J. N. 4627 (S.C.J.) at paragraphs 31 to 34 as follows:

The meaning of the terms “planned and deliberate” is well established in the case law. The well recognized definition of these terms is provided by Gale J. in R. v. Widdifield (1963-64) 6 Crim. L.Q. 152 at 153-54:

I think that in the Code, “planned” is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, insofar as time is concerned, is the time involved in developing a plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word “deliberate” is concerned, I think the Code means that it should also carry its natural meaning of “considered,” “not impulsive,” “slow in deciding,” “cautious,” implying that the accused must take time to weigh the advantages and disadvantages of his intended action. That is, what it seems to me, deliberate means.

[32] The elements of planning and deliberation must precede the commencement of the conduct that causes death: R. v. Reynolds (1978), 1978 1269 (ON CA), 44 C.C.C. (2d) 129 (Ont. C.A.); R. v. Smith (1979), 1979 2233 (SK CA), 51 C.C.C. (2d) 381 (Sask. C.A.). Justice Watt, in R. v. Ayotte, [1998] O.J. No. 4700 at paras. 64-65(Ct. J. (Gen. Div.)), refers to the law on “planned and deliberate” as follows:

For there to be a planned and deliberate murder, there must be evidence that the murder was the result of a scheme or design that the accused had previously formulated or designed. The murder must be the implementation of that scheme or design. A murder committed on sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder…

It is also important to remember that in cases where there is no evidence of what took place between the accused and the deceased at times crucial to the issues of planning and deliberation, inferences about specific mental states are well nigh impossible to draw.

[33] There is no requirement that a plan take hours or days to prepare. Although the time it takes to develop a plan is an important factor in deciding if a murder is planned, there is no minimum time required. A very simple plan can be formulated in a very short period of time: R. v. Weese, 2010 ONSC 3589, [2010] O.J. No. 2651 at para. 17; R. v. Plewes, 2000 BCCA 278, [2000] B.C.J. No. 832 (C.A.).

[34] The elements of planning and deliberation, while both essential to first-degree murder, are also separate. Thus, there can only be an order to stand trial for first-degree murder if the threshold test is met for both planning and deliberation, independently: R. v. More, 1963 79 (SCC), [1963] S.C.R. 522; R. v. Stevens (1984), 1984 3481 (ON CA), 11 C.C.C. (3d) 518 at 538-39 (Ont. C.A.).

[15] Planning and deliberation may be proven by circumstantial or direct evidence.

[16] In a case where there is one shooter, the non-shooter’s potential liability must be as an aider or abettor, not as a co-principal: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 at para. 71.

ANALYSIS

[17] The proximity of the non-shooter to the shooter when the shots were fired is an important factor. However, it is an individual piece of evidence that the Crown is not required to prove beyond a reasonable doubt. Based on the expert evidence analysis of the gunshot residue on the hands of both accused, the jury could reasonably find that the non-shooter was very close to the shooter when the shots were fired.

[18] Based on the evidence presented in the Crown’s case in chief, a properly instructed jury acting reasonably could infer the following:

• Jordan Mendez and Shamaree Wilson travelled quickly together from the baby shower on McClure Crescent avoiding the main streets until they were on Blackwater Crescent. One of them was carrying a loaded handgun.
• There was some kind of interaction between Jordan Mendez, Shamaree Wilson and Joel Waldron moments after Joel Waldron left his home at 56 Blackwater Crescent. There is no evidence that Joel Waldron was accompanied by anyone before he met up with Jordan Mendez and Shamaree Wilson.
• Joel Waldron was shot twice in the back and once in the back of the head. There was no evidence that he possessed or held a gun or any other type of weapon when he left his residence or during whatever altercation took place that culminated in him being fatally shot.
• The defence concedes that there is evidence that Jordan Mendez and Shamaree Wilson were both present when the shots were fired and one of them fired the shots.
• The non-shooter may well have been standing within 10 feet of the shooter to the left or right when the shots were fired.

[19] Evidence that the non-shooter may well have handled the gun very shortly after shots were fired and the close proximity of the non-shooter as shots were fired was evidence that the non-shooter was more than a mere bystander. The cumulative evidence of the two accused moving together rapidly to the scene of the shooting, the location and number of shots to the victim and the forensic evidence related to gunshot residue would be evidence upon which the jury could find that the non-shooter was an aider or abettor to an intentional killing.

[20] Evidence of an intentional killing without more does not amount to evidence of planning and deliberation. First degree murder requires proof of both planning and deliberation of an intentional killing.

[21] The Crown refers to the following as evidence of planning and deliberation:

• The shooting of the victim moments after he left his home “looks like an ambush”.
• The Crown’s theory is that the two accused went to a nearby baby shower where many people would see them. The plan was to move swiftly from the shower, encounter and shoot the victim and then return quickly to the baby shower. This sequence of events within several minutes would provide an alibi for both accused from people at the baby shower.
• The Crown posits that the two accused must have known in advance that the victim would step out of his home as they waited nearby with the handgun. The Crown submits that this could not be pure coincidence.
• The plan to leave the shower, shoot the victim and quickly return to the shower was thwarted when they saw police cars in the area and decided to head off to the nearby home of a former girlfriend of Shamaree Wilson.

[22] The Crown submits that these factors provide circumstantial evidence of both planning and deliberation. I disagree.

[23] There is no evidence that the two accused planned to go to the shower, leave, kill Joel Waldron and return before anyone knew they had left. The only evidence, direct or circumstantial, on this issue is that both accused were asked to leave the party and that they did so. The alleged plan to use their presence at the baby shower as an alibi would not be a reasonable inference for the jury to draw.

[24] Evidence that the victim was ambushed moments after he walked out his front door would be powerful support for planning and deliberation. The Crown posits that it cannot be pure coincidence that the two accused happened to encounter him at that moment and the shots are fired. The Crown’s theory of ambush rests on the submission that the two accused must have known the victim would leave his home at that moment.

[25] There is no evidence that the victim left his home at the fateful moment in order to meet anyone or at the request of anyone. The only evidence, direct or circumstantial, on this issue is that the victim told members of his family that he was going out to buy some juice and would return. The stipulated evidence of his mother who was home at the time is that he told her why he was going out. She also said it was not unusual for him to go out late at night to buy juice or something else.

[26] The Crown refers to the proliferation of cellphones among the accused, the victim and others and effectively suggests that there must have been some cellphone communication that drew the victim outside at the fateful moment. There is no evidence, direct or circumstantial, of such communication from either accused or anyone at their behest. It would be conjecture and speculation rather than evidence for the jury to consider that there must have been some invitation or enticement for the victim to step outside just as the two accused approached. There is a significant evidential gap on this crucial issue.

[27] RESULT: the applications for directed verdicts by both accused are allowed in part. There will be a directed verdict on first degree murder for both accused. The trial proceeded on second degree murder for both accused.

B. P. O’Marra J.

Released: August 8, 2019

COURT FILE NO.: CR-12-30000346-0000 DATE: 20190808

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

JORDAN MENDEZ and SHAMAREE WILSON Applicants

RULING ON APPLICATIONS FOR DIRECTED VERDICTS B. P. O’Marra J.

Released: August 8, 2019