Court File and Parties
COURT FILE NO.: CR-18-1164 DATE: 2020 06 11 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TRAYON JOHNSON and RICHARD IRELAND Applicant M. Addie and J. Kopman, for the Applicant Trayvon Johnson
- and -
HER MAJESTY THE QUEEN Respondent E. Taylor and C. Presswood, for the Respondent Crown
HEARD: April 29 to June 21, 2019
REASONS FOR DECISION ON MODES OF PARTICIPATION
BARNES J.
INTRODUCTION
[1] This is a joint jury trial of Richard Ireland and Trayon Johnson on charges for the second-degree murder of Mark Chavez and the attempted murder of Jackson Merrizzi. The Crown bears the burden of proving all elements of the offences beyond a reasonable doubt.
[2] The Crown’s application for a jury instruction for Mr. Ireland as a principal, pursuant to s. 21(1)(a) of the Criminal Code, and for Mr. Johnson as an aider, pursuant to s. 21(1)(b) of the Criminal Code, is granted. The Crown’s application for a jury instruction for Mr. Johnson as a co-principal pursuant to s. 21(2) of the Criminal Code is denied. Mr. Johnson’s request that the jury be instructed only on s. 21(2) of the Criminal Code, and thus that a verdict of guilty of second-degree murder be unavailable for him, is dismissed.
ELEMENTS OF THE OFFENCE
[3] Second-degree murder is contrary to s. 229(a) of the Criminal Code. The Crown must prove that the accused: 1) caused Mr. Chavez’s death; 2) caused Mr. Chavez’s death unlawfully; and 3) intended to kill Mr. Chavez.
[4] Attempted murder is contrary to s. 239(1) of the Criminal Code. The Crown must prove that the accused meant to kill Mr. Merrizzi and stabbed Mr. Merrizzi to kill him.
ALTERNATE MODES OF PARTICIPATION
[5] The Crown seeks a jury instruction on different routes of participation for Mr. Ireland and Mr. Johnson. For Mr. Ireland, the Crown alleges that he personally committed the offences (i.e. that Mr. Ireland used a knife to stab Mr. Chavez multiple times intending to kill him). He also intended and attempted to kill Mr. Merizzi by also stabbing him multiple times with the same knife. Therefore, Mr. Ireland is guilty of the offences pursuant to s. 21(1)(a) of the Criminal Code as a principal.
[6] The Crown further alleges that Mr. Ireland did not act alone. He had help from Mr. Johnson. To attach liability as an aider, the Crown must prove: 1) that Mr. Johnson intended to assist Mr. Ireland in the commission of the offence; and 2) that Mr. Johnson knew that Mr. Ireland intended to commit the offence. The Crown does not have to prove that Mr. Johnson intended the successful completion of the offence. The Crown also does not have to prove that Mr. Johnson knew how Mr. Ireland intended to commit the offences: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411.
[7] According to the Crown, Mr. Johnson knew Mr. Ireland intended to commit the offences and helped him commit them. He argues that Mr. Johnson helped Mr. Ireland kill Mr. Chavez and attempt to kill Mr. Merrizzi by stunning them with a taser while Mr. Ireland stabbed them. Therefore, pursuant to s. 21(1)(b) of the Criminal Code, Mr. Johnson is guilty of the offences because he aided Mr. Ireland in committing these criminal acts.
[8] Alternatively, the Crown alleges that Mr. Johnson is a co-principal with Mr. Ireland because they agreed to participate in a joint criminal enterprise to rob Mr. Merrizzi during the drug transaction. This was their common unlawful purpose. In the course of committing the robbery, Mr. Ireland stabbed and killed Mr. Chavez and stabbed Mr. Merrizzi, attempting to kill him.
THE LEGAL TEST
[9] I must consider whether there is an air of reality to the various routes of participation in the offence advanced by the Crown. Although there is no directed verdict application before me, I apply the test for a directed verdict as articulated in United States of America v. Sheppard, [1977] 2 S.C.R. 1067 and R. v. Monteleone, [1987] 2 S.C.R. 154. The question to be answered is as follows: is there any admissible evidence before the court, direct or circumstantial, which, if believed by a properly instructed and reasonable jury, could justify a conviction?
POSITION OF THE PARTIES
[10] Mr. Ireland takes no issue with the Crown’s request for a jury instruction on his alleged culpability as a principal. Mr. Johnson also takes no issue on the Crown’s request for a jury instruction on how his culpability may be assessed in accordance with the routes of liability I have already described. However, he submits that the jury should be instructed that a verdict of guilty of second-degree murder is not available for Mr. Johnson.
[11] Mr. Johnson concedes that there is an air of realty to support a jury instruction on the routes of liability requested by the Crown. However, a jury instruction on alternate routes of participation, without a specific instruction that Mr. Johnson cannot be found guilty of second-degree murder, will confuse the jury and possibly result in a miscarriage of justice.
[12] The Crown concedes that there is no evidentiary basis to support a finding that Mr. Johnson knew or should have known that Mr. Ireland would probably kill or attempt to kill Mr. Chavez and Mr. Merrizzi, during the commission of the robbery. Thus, it is not open to the jury to find Mr. Johnson, guilty of second-degree murder and attempted murder as a co-Principal, pursuant to section 21(2) of the Criminal Code. The only available guilty verdicts, via this mode of participation, are guilty of manslaughter of Max Chavez and guilty of aggravated assault of Jackson Merrizzi.
SUMMARY OF THE EVIDENCE
[13] The jury has heard evidence that Mr. Ireland arranged to purchase marijuana from Mr. Merrizzi. They agreed to meet in the parking lot of a McDonald’s restaurant. This restaurant was close to the residence where Mr. Ireland and Mr. Johnson were staying at the time. Mr. Merrizzi drove a blue SUV to the agreed meeting place, on the agreed day, at the agreed time. In the front passenger’s seat of Mr. Merrizzi’s vehicle was Mr. Chavez.
[14] Mr. Johnson and Mr. Ireland are cousins. They rode bicycles to the meeting place, accompanied by their friends, Mr. Langaigne and Mr. Thompson, who travelled on foot. Upon arrival, Mr. Johnson and Mr. Ireland sat in the back passenger-side seat of Mr. Merrizzi’s vehicle. Mr. Langaigne and Mr. Thompson took possession of the bicycles, but remained in the vicinity. Mr. Merrizzi produced a marijuana sample for examination and requested payment. Payment was not forthcoming. A fight ensued, culminating in the stabbings.
[15] Mr. Merrizzi and Mr. Johnson told the jury that Mr. Ireland had the knife and did the stabbings. Dr. McAuliffe, a forensic pathologist, said there was a three-centimetre-wide wound in Mr. Chavez’s chest piercing his heart. This gaping hole was caused by a sharp object that was applied with considerable force. This was the fatal wound causing death within minutes. Dr. McAuliffe also described other serious injuries to the victims, including defensive wounds. By agreed statement of fact, Mr. Ireland has conceded that he had a knife and used it to stab Mr. Chavez and Mr. Merrizzi. However, it was not his intention to kill them. Mr. Ireland has pleaded guilty to manslaughter.
[16] Mr. Merrizzi provided further detail. He testified that after the money was not forthcoming, he began to drive the vehicle around the parking lot. Mr. Ireland produced a knife and began to stab him and Mr. Chavez. He said he was tasered during the altercation. Mr. Merrizzi testified that Mr. Ireland and Mr. Johnson would not exit the vehicle when he told them to. Mr. Merrizzi said Mr. Ireland and Mr. Johnson tried to rob him and that Mr. Ireland tried to kill him. He said the attack stopped when he told them that he was bleeding and stopped the vehicle. Mr. Merrizzi also testified that the car locks could have been engaged at some point, but that he unlocked the car doors. It was at that time that Mr. Ireland and Mr. Johnson got out of the vehicle. He described multiple injuries. The injuries were serious and life threatening.
[17] Mr. Johnson said that he and Mr. Ireland never intended to rob or attempted to rob Mr. Merrizzi. Neither was it their intent to kill them. The fight started because Mr. Merrizzi locked them in the vehicle and would not let them out, such that he and Mr. Ireland could not exit the vehicle. Mr. Johnson testified that he was scared. He said he had no knowledge that Mr. Ireland had weapons, and when Mr. Ireland produced a knife, he told him not to use it. Mr. Johnson said Mr. Ireland gave him a taser. Mr. Johnson used the taser only to dislodge Mr. Chavez’s hand when Mr. Chavez grabbed his hand. Mr. Johnson said neither he nor Mr. Ireland had any intention of killing Mr. Chavez or Mr. Merrizzi.
[18] Mr. Johnson’s then girlfriend, Mercedes Doyle, also testified that Mr. Johnson told her that he went with Mr. Ireland to help him rob Mr. Merrizzi.
ANALYSIS
[19] I agree with the parties’ position that the evidence is such that there is admissible evidence, both direct and circumstantial, which, if believed by a properly instructed and reasonable jury, could justify a conviction.
Mr. Ireland as a Principal
[20] As mentioned, Mr. Ireland takes no issue with the Crown’s request for a jury instruction on his alleged culpability as a principal. The Crown’s application for a jury instruction for Mr. Ireland as a principal, pursuant to s. 21(1)(a) of the Criminal Code, is therefore granted.
Mr. Johnson as an Aider and/or a Co-Principal
[21] The Crown seeks a jury instruction on Mr. Johnson’s alleged culpability as both an aider, pursuant to s. 21(1)(b) of the Criminal Code, and as a co-principal, pursuant to s. 21(2) of the Criminal Code. Mr. Johnson seeks a jury instruction on his alleged culpability only as a co-principal pursuant to s. 21(2) of the Criminal Code. For the reasons outlined below, I find that it is proper for the jury to be instructed only on Mr. Johnson’s alleged culpability as an aider pursuant to s. 21(1)(b) of the Criminal Code.
[22] Given the evidence, I find that there is an air of reality to support Mr. Johnson’s conviction as an aider, pursuant to s. 21(1)(b) Criminal Code, on the charges of second degree murder and attempted murder. The Crown’s position that Mr. Johnson helped Mr. Ireland kill Mr. Chavez and attempt to kill Mr. Merrizzi by stunning them with a taser while Mr. Ireland stabbed them, if believed by a properly instructed and reasonable jury, could justify a conviction under this mode of liability. There is no reasonable basis to remove this from the jury’s consideration. A proper jury instruction on s. 21(1)(b) of the Criminal Code will better equip the jury with the legal tools necessary to determine the appropriate verdict for Mr. Johnson.
[23] It is apparent from the foregoing that a jury instruction on the mode of participation as a co-principal is the most advantageous for Mr. Johnson. However, a fair trial does not mean that Mr. Johnson should receive the most advantageous charge. Instructing the jury only on s. 21(2) of the Criminal Code as a co-principal will create an unfair trial because it will preclude consideration of other available modes of participation which, on the evidence, are clearly available for consideration. This is undesirable as it impairs society’s interest in resolving the case fairly on the merits.
[24] In addition, such an instruction based on liability as a co-principal under s. 21(2) of the Criminal Code will only confuse the jury since, for reasons previously articulated, there is an air of reality to support a conviction as an aider under s. 21(1)(b) of the Criminal Code. A proper jury instruction will not confuse the jury. What will confuse the jury is yet another avenue of liability under s. 21(2) of the Criminal Code.
CONCLUSION
[25] For the reasons articulated above, I conclude the following:
i. The Crown’s application for a jury instruction for Mr. Ireland as a principal pursuant to s. 21(1)(a) of the Criminal Code is granted. ii. The Crown’s application for a jury instruction for Mr. Johnson as an aider pursuant to s. 21(1)(b) of the Criminal Code is granted. iii. The Crown’s application for a jury instruction for Mr. Johnson as a co-principal pursuant to s. 21(2) of the Criminal Code is dismissed. iv. Mr. Johnson’s application for a jury instruction for his liability only under s. 21(2) of the Criminal Code, and thus that a verdict of guilty of second-degree murder be unavailable to him, is dismissed.
“Original signed by Justice Barnes”
Justice K. Barnes