COURT FILE NO.: CR-12-30000346-0000
DATE: 20190808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
JORDAN MENDEZ and SHAMAREE WILSON
Respondents
Joshua Levy and Robert Fried, for the Applicant
Zachary Kerbel and Saman Wickramasinghe, for the Respondent Jordan Mendez Gabriel Gross-Stein, for the Respondent Shamaree Wilson
HEARD: June 6 and 7, 2019
RULING ON THE ADMISSIBILITY OF EVIDENCE
B. P. O’Marra J.
OVERVIEW
[1] Late in the evening of February 26, 2011 Joel Waldron was at home with members of his family and a family friend. He put his coat on and said he was going out to buy some juice and would return. Moments after he stepped outside his home he encountered Jordan Mendez and Shamaree Wilson. Moments later Joel Waldron was shot twice in the back and once in the back of the head. As he lay dying in the snow Jordan Mendez and Shamaree Wilson fled on foot. They were later arrested and charged with first degree murder.
[2] On November 10, 2013 both accused were found guilty as charged. On appeal by both accused a new trial was ordered. The retrial commenced on May 27, 2019.
[3] The Crown’s theory was that Joel Waldron was lured into an ambush by his killers. Shortly before Joel Waldron stepped out of his home that late evening there were two cell phone calls to his phone. There is no evidence as to who placed those calls or to any name associated to the calling number. The defence objected to the admissibility of reference to those two calls.
[4] On June 7, 2019 I ruled that the evidence of those two calls is inadmissible. The trial is now complete. These are my reasons.
POSITION OF THE PARTIES
[5] The Crown submits that based on the timing of the two calls there is a reasonable inference open to the jury that Joel Waldron left his home moments before he was shot in response to or as a result of the two calls. Thus, he was lured to his death. The defence submits that this evidence is inadmissible since there is no connection, direct or otherwise, to either accused. Further, the defence submits there is no evidence or reasonable inference that the calls prompted Joel Waldron to leave his home moments before being shot.
EVIDENCE OF THE TWO CALLS AT THE FIRST TRIAL
[6] The admissibility of this evidence was not litigated at the first trial. The way in which it was tendered and the use made of it by Crown counsel on that trial is relevant to my analysis. A new trial was ordered for reasons unrelated to this evidence.
[7] The Crown at the first trial had disclosed to counsel cell phone records that included the two calls now in issue. It is interesting to note that the Crown did not tender evidence of these two calls in the course of examination in chief of any of their witnesses.
[8] The last witness for the Crown’s case in chief was Detective Khan. His evidence in chief related only to the video footage of two persons moving quickly to and from the scene of the shooting. In cross-examination by counsel for Jordan Mendez (who was not counsel on the retrial) the officer was shown cell phone records that included the two calls from unidentified callers. The cell phone records were filed as exhibits without objection. There was no reference to the two unidentified calls in evidence or questions from counsel.
[9] In his closing address at the first trial Crown counsel acknowledged that there was no evidence linking the two calls to anyone, specifically to either accused. Notwithstanding that the Crown went on to refer to those two calls as powerful evidence that supported the Crown theory of an ambush. The following is an excerpt from the Crown’s closing address at the first trial:
Another feature of the plan, they're armed with a gun. Why are they taking a gun? Because you’ve thought about it before. There is no evidence that along the path they stopped off somewhere and picked up the gun. They had the gun. They had it because that was the plan all along. Here’s the most telling feature of the plan though. This is an ambush. Think about what an ambush is. You set upon a house, 56 Blackwater, knowing that Mr. Waldron is going to come out. That’s reconceived. That’s planned and deliberate. He steps out of his house and seconds later, he’s shot in the back of the head once and in the back twice before he has a chance to react. It can’t be a coincidence that they arrived there at the right time, that they’re just going for a jog and boom, there’s Joel Waldron. That doesn’t make any sense.
Somehow they knew he was going to be stepping out of that house. He was lured out of that house. We don’t know how. We don’t have Joel Waldron’s cell phone and, of course, we don’t have Joel Waldron. But it can’t be a coincidence that they get there and he happens to step out of his house and seconds after he’s shot and killed. You do have, as you may recall, at the end of the trial, a document was introduced as an exhibit and it’s the cell phone records of Mr. Diego(ph) Waldron, we all agree is Joel Waldron. If you look at those records, you will see a couple of phone calls to his phone minutes before the shooting. We do not know and you do not know who made those calls. Somebody did. And minutes later, he’s stepping out of his house at 10:52 p.m. to go to a store. That’s what he says: “I’m going to a store.” That doesn’t mean it wasn’t a plan to lure him out of his house. He got a call and stepped out of his house and seconds later, he’s shot to death. Think about what an ambush is. It’s a preconceived plan. It’s planned and deliberate. It’s first degree murder.
ANALYSIS
[10] 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 CanLII 34563 (ONCA) at para. 7.
[11] The Crown’s closing address at the first trial and its position from the outset of this retrial is that these two contentious phone calls are evidence that Joel Waldron was lured to an ambush. This important evidence passed before the jury at the first trial through a filing without objection by (then) defence counsel in cross-examination of the last Crown witness.
[12] Evidence that Joel Waldron was lured outside to an ambush would be powerful support for first degree murder. The tight nexus of time between these two unidentified calls and callers and Joel Waldron stepping out his front door presents a seductive invitation to bridge an evidential gap. That gap is a bridge too far in this case.
[13] There is no evidence, direct or indirect, that connects either accused, or anyone at their behest, to either of the two calls. Any suggested link of either accused would be based on speculation or conjecture.
[14] There is no evidence, direct or indirect, from which the jury could reasonably find that the two calls lured Joel Waldron to go outside where he was shot. The only evidence as to why he stepped outside is from members of his family. They indicate that he said he was going out to buy some juice. The inference that the Crown would seek on this evidence is contrary to the evidence and premised on speculation and conjecture.
[15] RESULT: the evidence is inadmissible.
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
Applicant
– and –
JORDAN MENDEZ and SHAMAREE WILSON
Respondents
RULING ON THE ADMISSIBILITY OF EVIDENCE
B. P. O’Marra J.
Released: August 08, 2019