COURT FILE NO.: CR-22-396 DATE: 2023 06 14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Keeley Holmes and Ryan Mullins, for the Crown

– and –

ROGER JAGGERNAUTH Jordan Gold, Sean Robichaud and Jacob Roth, for the Defendant

HEARD: April 11, 12, 13, 14, 17, 18, 19, 20 and 27, 2023

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

[1] The accused, Roger Jaggernauth is before the court charged with two offences:

• That he, on or about the 7th day of November, 2018, at the City of Mississauga, in the Central West Region, did attempt to murder Marlene Pimenta using a crossbow, contrary to section 239(1)(b) of the Criminal Code of Canada; and
• That he, between the 2nd day of May, 2018, and the 2nd day of November, 2018, at the City of Mississauga, in the Central West Region, did counsel William Paul Eakin to commit the offence of murder, contrary to section 464(a) of the Criminal Code of Canada.

[2] At around 8:00 p.m. on November 7, 2018, the doorbell rang at Marlene Pimenta’s home. She answered the door to a man who appeared to have a delivery box. Ms. Pimenta did not recognize him. The man shot her with a 20 inch crossbow arrow, which ripped through her body. Gravely injured and believing she was dying, Ms. Pimenta was able to call 911 and seek help. She reported what had happened and that she thought her ex-boyfriend, Roger Jaggernauth, might be involved. Emergency responders transported her to hospital, where she spent 10 days in a coma, followed by a long and difficult recovery.

[3] While Ms. Pimenta’s door camera captured images of the shooter, he has never been identified. The police immediately identified the accused as a suspect. Police surveillance of him began later on the night of November 7, 2018. The investigation that followed was intense and extensive. On August 12, 2020, 21 months after the attack on Ms. Pimenta, Mr. Jaggernauth was arrested and charged.

[4] It is the Crown’s theory that the accused arranged for the shooter to go to Ms. Pimenta’s home to kill her. The Crown says that when viewed cumulatively, the circumstantial evidence proves the attempt murder count beyond a reasonable doubt. In support of this, the Crown relies on:

• Evidence of the accused’s motive to kill Ms. Pimenta, flowing from her rejection of him and the progression of the subsequent family law litigation;
• Evidence of a conversation the accused had with his friend Paul Eakin, a former Satan’s Choice Club member, prior to the attack. The Crown alleges that Mr. Jaggernauth told Mr. Eakin that he and his ex were splitting up and asked Mr. Eakin if he knew anyone who could take her out. This evidence is also the basis for the counselling to commit murder charge;
• Evidence of Mr. Jaggernauth’s statement days before the attack to his work supervisor, David Allan, reflecting his anger at Ms. Pimenta and in which he is alleged to have said that he “could or would kill her”;
• Evidence respecting Mr. Jaggernauth’s finances and unaccounted for withdrawals of funds from his accounts;
• Evidence of Mr. Jaggernauth’s actions following the attack, alleged to be relevant and probative after-the-fact conduct.

[5] The defence submits that the evidence as a whole falls short of establishing that the accused’s guilt on the attempt murder is the only available inference. In respect of the counselling charge, the defence submits that Mr. Eakin’s evidence is not reliable as to what was said and that the Crown has not proven the accused’s intent was serious, whatever he said.

[6] For the reasons set out, I find Mr. Jaggernauth guilty on both counts.

Legal Principles

Standard and burden of proof

[7] Mr. Jaggernauth is presumed innocent of the charges he faces. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Jaggernauth is guilty of the offences charged. There is no onus on the accused to prove anything. He was not required to testify or to call evidence.

[8] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find the accused guilty only if I am sure that he committed the offences alleged.

Assessing circumstantial evidence

[9] The evidence in this case is circumstantial. When assessing circumstantial evidence, consideration must be given to other reasonable possibilities or plausible theories that are inconsistent with guilt. While the Crown must negate other reasonable possibilities, it is not required to negate every possible conjecture, no matter how irrational or fanciful, consistent with innocence. The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than guilt. If it is, the accused must be acquitted: R. v. Villaroman, 2016 SCC 33, at paras. 26-30, 37-38; R. v. Charron, 2022 ONCA 394, at para. 19.

[10] Circumstantial pieces of evidence are not to be considered separately, divorced from each other. As explained in R. v. Hudson, 2021 ONCA 772, at para. 70, consideration of a circumstantial case,

…does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King, [1941] S.C.J. No. 49, 77 C.C.C. 75, at p. 76.

See also: R. v. Johnson, 2023 ONCA 120, at para. 7.

[11] Circumstantial evidence is not subject to the criminal standard of proof, except where it is the only evidence available to establish an essential element of the offence: R. v. Wood, 2022 ONCA 87 at para. 125.

The elements of attempted murder (s. 239(1)(b))

[12] The offence of attempt murder is set out in s. 239 of the Criminal Code. Proving the offence of attempted murder requires the Crown to prove beyond a reasonable doubt that that Mr. Jaggernauth intended to kill Ms. Pimenta and that he acted or conducted himself for the purpose of carrying out that intention.

[13] The actus reus, or conduct requirement, must be go beyond mere acts of preparation: R. v. Ancio, [1984] 1 S.C.R. 225. The point at which an accused’s actions pass beyond merely preparatory in an attempt to commit the offence can be difficult to identify in the abstract. The conduct need not be criminal or even unlawful: R. v. Boone, 2019 ONCA 652, at paras. 49-50.

[14] The mens rea or mental element of the offence requires that the Crown prove the specific intent to kill: The Queen v. Ancio, [1984] 1 S.C.R. 225, at pp. 250-251. The intention to inflict harm, combined with recklessness as to the consequences, does not suffice. Intention to kill includes a decision to carry out some purpose knowing that the killing is virtually certain, even if the killing is not the ultimate purpose: R. v. Logan, [1990] 2 S.C.R. 731, at para. 23; Boone at para. 52; R. v. Collins, 2023 ONCA 394, at para. 54.

The elements of counselling murder that is not committed (s. 464(a))

[15] Counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. The conduct could include advising, recommending a course of action, bringing about, soliciting, asking repeatedly or earnestly for, seeking or inviting, making a request, inciting, urging, instigating or persuading. The mental element of counselling murder is proof that the accused either intended that the murder be committed, or knowingly counselled the commission of the murder while aware of the unjustified risk that the murder was in fact likely to be committed as a result of his conduct: R. v. Hamilton, 2005 SCC 47, at paras. 21-23 and 29; R. v. Root, 2008 ONCA 869, at paras. 83-84, leave to appeal refused, [2009] S.C.C.A. 282.

[16] The offence of counselling is complete when the solicitation or incitement occurs. It does not matter if the person counselled immediately rejects the solicitation or pretends to agree and has no intention of committing the offence: Root, at para. 86; R. v. Gonzague.

Analysis

The November 7, 2018 Attack on Ms. Pimenta

[17] While there is no question that Ms. Pimenta was attacked on November 7, 2018, the defence disputes that the Crown has proven both what it alleges the shooter said and whether this was a targeted attack.

[18] The evidence as to what happened at the door that evening comes from Ms. Pimenta, augmented to some degree by the video. Ms. Pimenta testified that in the evening of November 7, 2018, she was at her home alone. While she was upstairs having a shower, she heard the doorbell. She was not expecting anyone, but went downstairs and approached the door with her phone in her hand. Through the bay window, she saw a person standing at the door with a box. She turned on the exterior camera, using her cell phone, and opened the door.

[19] According to Ms. Pimenta, the man asked if she was Marlene. She said “yes” and he said that the package was for her. She leaned in because she saw three labels on the box and she wanted to see her name. She looked and then leaned back and said that she did not see her name. The person said “ya, this is for you, this is from Roger.”

[20] Ms. Pimenta was then hit with something, she did not know what. She said, “what the fuck is that” and said the man gave her a look of surprise and left. She slammed the door and screamed for help before calling 911.

[21] Ms. Pimenta was taken to hospital and woke up 10 days later in hospital, having been in a coma. The arrow shot at her went through her body, causing her to lose part of her stomach and esophagus. It hit her aorta and punctured her left lung. She lost her spleen and damaged her pancreas and part of her small intestine. She was in hospital a little over a month and then moved to a rehabilitation facility. Her recovery required home care and assistance from family. She had a feeding tube for a year and needed further surgeries so she could eat. She continues to suffer the effects of her injuries.

[22] Ms. Pimenta testified that when she first spoke to police on November 19, 2018, she was confused. She described to police a situation in which the accused had previously shot her, something she later realized had not happened.

[23] Ms. Pimenta has watched the video of the person who came to her door. She does not recognize him and did not recognize his voice at the time. She described him as a white male, 5 foot 7 or 8 inches tall, with a five o’clock shadow and not a full beard. She thought he was possibly in his 30s. It was no one she had seen before or after, as far as she knows.

[24] Under cross-examination, it was suggested to Ms. Pimenta that the shooter had not said “this is from Roger.” Ms. Pimenta agreed that she had not said in her 911 call or her statement of November 19, 2018 that the shooter had said “this is from Roger”. The Crown submits that, in light of the frailties in Ms. Pimenta’s evidence respecting her utterance “this is from Roger”, I should decline to give this alleged utterance any weight. I agree with this fair concession.

[25] Ms. Pimenta was also cross-examined on her testimony that the shooter asked her if she was Marlene. She agreed that she had not reported this in her 911 call or her statement to police on November 19. She testified that she was sure that the shooter said this and has a memory of him asking “are you Marlene?” She recalled leaning in to see if her name was on the box. She agreed that the first time she had mentioned the shooter asking if she was Marlene to the police had been in her second statement, given on November 27, 2018.

[26] Under re-examination, Ms. Pimenta said that when she provided her November 19, 2018 police statement, she was on medications and had been dreaming and mixing things up. In her November 27, 2018 statement, she first told police she had been asked “are you Marlene”. When she responded to the police request to tell them “exactly” what the shooter said, she reported that he had asked, “is your name Marlene?” The Crown did not adduce the evidence respecting what was in the statement for its truth, recognizing it was inadmissible as a prior consistent statement. Rather, it was adduced to demonstrate the difference between her disclosure of the utterances “this is from Roger” and, “are you Marlene?”

[27] The defence position is that the Crown has not proven that the shooting was a targeted one, as opposed to a random act of violence. The Crown suggests that it was a targeted hit.

[28] I accept Ms. Pimenta’s evidence that the shooter asked if she was Marlene. While I recognize that her recollection of being told “this is from Roger” is not reliable, particularly when she was confused about whether Roger had shot her before, her evidence respecting being asked if she was Marlene is more reliable. First, she explained the context in some detail, recounting that after hearing the question, she specifically leaned toward the package to see if her name was there, given that she was not expecting a package. Second, she testified that despite being foggy about other things, she has a clear memory of this. Her evidence makes sense in the context of her receiving an unexpected package.

[29] The fact that the shooter asked if she was Marlene is one of several factors that leads me to conclude that this was a targeted attack on her. This conclusion is also supported by facts that it occurred at the home where she lived alone, and that the shooting appears not to have been for any other purpose. For instance, the shooter did not attempt to sexually assault her. He did not enter the home to try to steal anything after shooting her. In fact, he did nothing other than confirm who she was, shoot her and then leave, having inflicted this extremely serious injury. Moreover, his set up for the shooting, with a cross-bow concealed in a box in an elaborate enough manner to surreptitiously shoot the person who answered Ms. Pimenta’s front door, suggests a degree of advance planning and thought, further undermining any suggestion that this could have been a random act of violence. I am satisfied that the stranger at Ms. Pimenta’s door shot her in a deliberate and targeted attempt to kill her. Indeed, there was nothing random about this shooting.

Motive arising from the breakdown of the relationship and the dispute over Ms. Pimenta’s investment in Mr. Jaggernauth’s home

[30] The Crown is not required to prove motive. It is not an element of murder or attempt murder. However, evidence of motive is relevant, material and admissible in prosecutions for attempt murder, especially when the Crown’s case is circumstantial. It is material because it helps establish the identity of the person who committed the offence. It is circumstantial evidence used to prove or assist in proving a human act. Evidence that a person had a motive to do an act enhances the likelihood that the person did that act. Motive points to future conduct. We infer from prior motive subsequent conduct: R. v. McDonald, 2017 ONCA 568, at paras. 70-73; R. v. Yumnu, 2010 ONCA 637; R. v. Candir, 2009 ONCA 915; R. v. Singh, 2022 ONCA 584, at para. 101.

[31] The Crown acknowledges that it cannot prove that the accused had the exclusive motive to kill Ms. Pimenta. That task would be nearly impossible and there is no obligation on the Crown to do so. The Crown submits that Mr. Jaggernauth’s powerful motive to kill Ms. Pimenta is an important piece of its circumstantial case against him.

[32] In my view, the chronology of events in the months leading up to the attack on Ms. Pimenta supports the Crown’s position that Mr. Jaggernauth had a compelling motive to kill her. I will set out the details supporting this finding.

2015 to May 2018 – Relationship between Ms. Pimenta and Mr. Jaggernauth

[33] Ms. Pimenta is 49 years old. She has two adult sons from her relationship with Frank Marchese. She and Mr. Marchese separated in March 2013. It took some time to figure out the division of their assets. After meeting through work, Mr. Jaggernauth and Ms. Pimenta began a relationship. In March 2015, she moved into his home at 1810 South Sheridan Way, which he had purchased the summer before.

[34] Ms. Pimenta testified that she had about $375,000 from her separation settlement with Frank Marchese. She and Mr. Jaggernauth discussed their plan for her to contribute financially to his home and that her name would go on title. She gave him $100,000 initially and then additional money for renovations before she moved in. Between them, they had five children and wanted to renovate the home so that their families could live with them. Over time, Ms. Pimenta said that she gave all of the $375,000 from her separation to Mr. Jaggernauth. Her understanding, based on their discussions, was that her name would go on title to the home and she would help him financially.

[35] Ms. Pimenta and the accused separated for a period between November 2015 and June or July 2016. They had an ongoing dispute about her name going onto the title of the home. She testified that the accused promised her that they would have a lawyer complete this, and that he would sign the necessary documents. She took his word and believed, because they were in a relationship, that he would follow through. However, he canceled the appointments and backed out of their agreement.

May to July 2018 – Ms. Pimenta moves out and the accused harasses and stalks her

[36] In May 2018, Ms. Pimenta moved out of Mr. Jaggernauth’s home for the final time. A week later, she rented a home at 3072 Bayberry. She testified that she wanted to maintain a friendly relationship while she packed up and moved her things out. While she never intended on resuming her relationship with the accused, she projected to him that they were working on it because she wanted to leave peacefully and to obtain legal advice about the money she had invested in the home.

[37] Ms. Pimenta never shared her Bayberry address with the accused. However, he quickly obtained it. His friend Daniel Muchos testified that in May 2018, when he was living paycheck to paycheck, the accused asked him if he would like to make $50 by following Ms. Pimenta when she moved out. Mr. Muchos accepted this offer and gave the address to the accused. Mr. Jaggernauth told Ms. Pimenta that he had her moving truck followed.

[38] After Ms. Pimenta had moved to her new home, Mr. Jaggernauth often showed up there. Sometimes he called her or rang the bell. Other times he parked his car outside or on a street nearby, where she would see him. She testified that he phoned, emailed and texted her all the time.

[39] After she moved out, Ms. Pimenta got the feeling that the accused knew where she was when she was not at home. For instance, she testified about an incident in June 2018 when she was at a friend’s garage party facing the driveway and saw the accused’s truck lights pass by. She was upset. As she walked to her car, she saw the accused’s truck. She called him. While he did not answer at first, and then told her he had been asleep, he eventually admitted that he had wanted to see her and that he loved her. She was livid.

[40] Ms. Pimenta described other similar concerning incidents. For instance, she described Mr. Jaggernauth calling her and telling her about a dream he had where she had bought wine and was going to spend time with a guy. She had just purchased wine and wondered how he knew. She said that the accused told her that he had a friend follow her to her friend’s house on Bendigo Circle. Ms. Pimenta agreed that during this time, Mr. Jaggernauth had believed that they were still together. She thought he had been upset because he was jealous and believed that she was cheating on him.

[41] In a notebook seized from the accused’s home following his arrest, there are handwritten notes that appear to refer to Ms. Pimenta’s movements during the post-separation period, beginning in June. For example, there is a note dated June 4 that read, “went to liquor store - then to 7272 Bendigo Court”, with a note “friend Maria lives here”. Similarly, there is a note from June 7 that “she and Frank took Joe to see family doctor” and an address in Brampton. Under a heading of June 15, various names and addresses of people in Ms. Pimenta’s life are listed.

[42] The evidence unequivocally establishes that after Ms. Pimenta left him in May, Mr. Jaggernauth actively and persistently followed her, tracking where she was and whom she was with. He showed up at her home and sent her almost constant messages that he still loved her and wanted to be with her.

[43] During this time, Ms. Pimenta tried to project to Mr. Jaggernauth that they might work things out. This was to enable her to keep peace with him until she retained counsel. It was for this reason that she agreed to the accused’s suggestion that they go to Cuba on a vacation in late June or early July 2018. When they returned home in July, although Ms. Pimenta wanted to hire counsel, she lacked the funds for a retainer.

[44] A large number of text communications (over 1,300) between Ms. Pimenta and Mr. Jaggernauth in the period from May 1 to October 8, 2018 were filed. These do not reflect all of their communications, as they also spoke on the phone over this period.

[45] The evidence also supports a conclusion that at some point in July, the accused began tracking Ms. Pimenta’s movements with a GPS tracker on her vehicle. He appears to have been billed for Planet GPS on July 19, 2018. The extract from his computer reveals that he looked at maps of various addresses that Ms. Pimenta went to and tracked and recorded her whereabouts. One example illustrates this adequately. In early July, Ms. Pimenta went to see her niece Victoria, who lived at 431 Pritties Island, near Ottawa. While she was there, Ms. Pimenta said that Mr. Jaggernauth called her and texted her repeatedly, telling her he missed her. She described it as “constant” and blocked him, eventually turning her phone off. When she got home, she said that Mr. Jaggernauth was outside her home waiting in his truck. She kept driving. A notebook seized from the accused’s home following the execution of a search warrant includes his notes of “Vicky Ottawa” and the address 433 Pretties Island Road. This evidence demonstrates that he was tracking Ms. Pimenta, but that the GPS tracker used gave him an address that was ever so slightly inaccurate. I did not understand the defence to challenge that Mr. Jaggernauth had used this technology to track Ms. Pimenta’s whereabouts.

[46] The accused’s messages to Ms. Pimenta over this period were harassing and obsessive, a fact not disputed by the defence. Mr. Jaggernauth repeatedly professed his love for her and then complained when he did not receive immediate responses from her, demanding five minutes of her time and that she call him back and stop being hurtful to him. At one point he said that all he wanted was his ring back, and then said that he just wanted to spend time with her. The messages paint a picture of someone who was hurt, angry and unkind.

[47] While I need not review all of the messages, I highlight that on July 8, 2018, his messages included:

• “I’m telling you we need to talk. Things are going to get out of control and it won’t be nice”
• “I’m prepared to die, than be without us.”
• I’m glad you’re not responding…I’m just getting it off my chest based on how you tried to hurt me since May 2”
• “You’re always gonna be my girl”

[48] Starting on the morning of July 9, 2018, the accused asked Ms. Pimenta to call him and said that they needed to discuss their finances and “how we are going to do things in a civilized way”. While she texted that she really did not want to talk with him, he began asking if she was going to fight him in court. She said that she did not plan to, but reminded him of her view that he owed her at least $350,000 and that they needed to figure out how he was going to return the money to her. He told her that their lives were upside down and that he wanted to work things out with her outside of court. There can be no question that he was well aware that she wanted the money she had given to him back.

[49] On July 3, 2018, Mr. Jaggernauth advised his employer, AMJ Campbell, that he was leaving his position on July 15, 2018. Shane Cutler, for whom he worked, said that around the time he quit, Mr. Jaggernauth told him that he had “personal issues” and may need to leave the country to protect the kids, though this was not the reason he gave for quitting. Mr. Cutler also testified that he and the accused had a conversation about him needing money to leave the country and that the accused talked about selling assets, including a car, to get money. Mr. Cutler thought that the accused had said he was going to China, and recalled wondering why he would go there. He agreed that he had been told by the accused that the kids’ mother wanted to take them away.

[50] While he was subjected to a wide-ranging and challenging cross-examination respecting, among other things, his memory of what the accused had told him and his relationships with Danny Nobrega and Ms. Pimenta, Mr. Cutler was, in my view, unshaken on his recollection that the accused had said he might need to leave the country and that he needed money to do so. I accept this.

July 24 to August 10, 2018 – Ms. Pimenta retains counsel and Mr. Jaggernauth learns about Danny Nobrega

[51] In March or April of 2018, Ms. Pimenta first spoke to counsel, Paula Bateman, about the money she claimed Mr. Jaggernauth owed to her. She was able to retain Ms. Bateman around July 24, 2018. She did not tell the accused she had done so. Yet the accused’s text messages seem to demonstrate that he knew she was speaking to counsel. In the afternoon of July 24, 2018, Mr. Jaggernauth’s texts to her included: “you don’t give a shit about me”; “you are heartless and lied to me since you left”; “if you want to get more hurtful and get lawyers involved, that’s on you” and “are you getting lawyers involved to go to court”. She responded: “This doesn’t have to go to court. The choice is yours. We both want to be amicable than [sic] let’s do that”. When he said, “You expect me to sell the house”, she responded “I expect to have the money invested into the house returned. You have to figure out the best way to do that”. His responses included, “Wow…you’re really going to try to fuck me over…OK…”. She responded that she was not and that she had a right to get back what was hers. The accused agreed, and then said, “I know you’ve been talking to a lawyer. Just be honest with that at least” and then said he knew she had spoken to a lawyer recently.

[52] When Ms. Pimenta replied that she was at work and could not text, his responses included:

• We are beyond repair because of you;
• And that’s how I know that you’re going to try to screw me over really badly…Because like you said it’s my problem to try to figure out…how the hell am I going to get that money back to you when I don’t have it;
• I have not given up. I am still willing to work on us. And fix this;
• I love you and we can fix this together. Let’s try;
• Marlene please. I need you in my life. Please let’s fix us. I’m begging you;
• You hurt me for the last time.

[53] Ms. Pimenta testified that prior to July 24, 2018, she and the accused had talked about the idea of him having to sell the home to re-pay her. She said that he did not want to do that and wanted to figure out another way. She described the home as his “pride and joy” and said it was his dream and his legacy and that he wanted his home for his kids. She also said that at one point he had offered to pay her back $500 a month., which she rejected.

[54] It is clear that by July, Mr. Jaggernauth knew that Ms. Pimenta wanted her money from the house and was determined to get it, including by engaging legal counsel. He continued to follow her, either in person or with the GPS tracker. His messages reflect his ongoing and increasing anger with Ms. Pimenta.

[55] Ms. Bateman testified that because she believed Ms. Pimenta had a meritorious claim to an interest in the accused’s house, she had a caution registered on title to the home on July 27, 2018. The caution was for 60 days, and provided Ms. Pimenta with an interim solution. It was done without notice to the accused, but would have given notice of Ms. Pimenta’s claim to anyone seeking to purchase the home. Ms. Bateman later learned that the accused had, in fact, listed the home for sale for 10-12 days at the end of July 2018.

[56] The Crown submits that the evidence of the accused listing his home and quitting his good job at AMJ Campbell suggest that he had formulated a plan to leave the country with the equity in his home. I am not persuaded that much can be made of these pieces of evidence, in isolation or combined. It is far from clear why the accused left his job, why he said that he needed to take his kids, from whom he was taking them and what he meant when he spoke to Mr. Cutler about selling his assets. I take nothing from this.

[57] In late July, Ms. Pimenta began to date Danny Nobrega. By early August, the accused had become aware of this, even though she had not told him. On August 1, 2018, his computer shows that he was viewing Willow Avenue in Innisfil, the street on which Mr. Nobrega lived. His text messages to Ms. Pimenta on August 1, 2018 include: “your hurtful ways will come back to you”, a reference to her being “with somebody else” and “you will always be a dirty whore”. He finished by texting, “don’t ever call me or contact me again. I hope you rot in hell”. Shortly after, Ms. Pimenta asked Mr. Jaggernauth never to call or text her again and indicated she had had enough harassment and would get a restraining order if she needed to. Minutes later, he responded: “We are done. I have moved on with my life, just like you have”.

[58] Clearly, he had not moved on. Just days later, Mr. Jaggernauth again showed up at Ms. Pimenta’s home. On the evening of August 7, 2018, as she and Mr. Nobrega were on the porch at her home talking and kissing before he left, Mr. Jaggernauth arrived. Ms. Pimenta described him getting a foot away from her face and saying, “OK, Marlene”, and then turning and walking away without acknowledging Danny. Ms. Pimenta assumed that at that point, the accused accepted that things were over between them. She also agreed that the accused’s harassment of her tapered off after this.

[59] The next day, August 8, 2018, Ms. Bateman sent an email to Mr. Jaggernauth telling him that she had been retained by Ms. Pimenta and asking that he retain counsel and have counsel contact her.

[60] On August 9, 2018, Ms. Pimenta called police and reported unwanted contact with Mr. Jaggernauth. She said he had persistently contacted her despite her wishes and that he had attended at her residence on August 7, 2018. As a result, the police contacted Mr. Jaggernauth and told him that she no longer wanted any contact except through counsel and that the potential consequences of him contacting her included being charged with criminal harassment.

[61] It seems that while the text messages tapered, Mr. Jaggernauth’s interest in Ms. Pimenta continued. By way of example, in his notebook there is a reference to Beachcomber Place Yacht Club, Innisfil, below which is a date of August 10, 2018 at 7:55 p.m. This appears to be a reference to Innisfil, where Danny Nobrega lived and Ms. Pimenta had visited.

August 15, 2018 – Ms. Pimenta sees the accused in her driveway

[62] More importantly, Ms. Pimenta testified about Mr. Jaggernauth coming to her home again on August 15, 2018. She described being home alone in the master bedroom. She saw a light on her ceiling, like a car, and went to see who it was. She looked out and saw someone coming up the driveway and realised it was the accused. He went up the driveway to the back yard. In shock, she called Danny Nobrega, who told her to call the police. She called police at 12:10 a.m. and reported that she believed that Mr. Jaggernauth had walked into her backyard.

[63] The parties take very different views on whether Ms. Pimenta was able to accurately identify Mr. Jaggernauth as the person she saw. During her examination in chief, she said that she was not able to see the accused’s face, but that having spent time with him, she knows him, knows what he looks like, knows how he walks and was able to see the top of his head and his dark hair as well as his jeans and steel-toed boots. She was sure that the person she saw was not her downstairs tenant, Jamie, whom she described as having had light skin and salt and pepper hair.

[64] Ms. Pimenta was vigorously cross-examined about the details of her identification of the person as Mr. Jaggernauth. While she always said she never saw his face, she was clear that she had seen his forehead and the top of his head as well as his stance and walk. Some areas of inconsistency in her evidence were exposed through cross-examination, including the precise point at which she able to see his skin colour, the precise moment at which she knew it was him and whether she had told the police that night that she was sure it was the accused, given that she had not been able to see his face.

[65] Having carefully reviewed Ms. Pimenta’s evidence as a whole, I accept her evidence that she saw Mr. Jaggernauth in the driveway of her home on August 15, 2018. I find her evidence was both credible and reliable. I view the discrepancies between what she had said before trial and at trial as minor. I also find the internal inconsistencies are minor. I found she was fair in her evidence, candidly agreeing that she had not seen the accused’s face. At the same time, she was able to describe in some detail the various ways in which she was able to recognize and identify him, flowing from her established familiarity with him, including his appearance, his forehead, his silhouette and his walk.

[66] In reaching my conclusion, I have considered that the police investigation of this matter was closed pending further investigation when police could not determine whether Mr. Jaggernauth had been the person Ms. Pimenta saw. I do not know what the police decision was based on, and have based my conclusion on the evidence before me.

[67] This evidence is important in terms of motive. The defence position is that after seeing Ms. Pimenta with Mr. Nobrega on August 7, 2018, Mr. Jaggernauth accepted that the relationship was over and moved on. The Crown says that after August 7, 2018, his plan changed, but he had not moved on and had, instead, decided that he would have her killed.

[68] My conclusion that Mr. Jaggernauth was on Ms. Pimenta’s property on August 15, 2018, going towards the backyard for no clear reason, strongly suggests that the accused had not simply moved on as the defence submits. Instead, the fact that he appears to have been trying to surreptitiously access her side or back yard suggests that he remained interested in Ms. Pimenta and the location at which she was living.

[69] On the basis of the extraction report of Mr. Jaggernauth’s computer, the Crown submits that August 25, 2018 was the last day that Mr. Jaggernauth viewed Planet GPS, which is the GPS tracking website he used over a period of months.

August 31 to October 9, 2018 – The legal proceedings become clear

[70] On August 31, 2018, Ms. Bateman heard from the accused’s lawyer, Ms. Mancia. It was clear to Ms. Bateman that counsel were pretty far apart in terms of their clients’ positions.

[71] As the caution on the accused’s home was going to be expiring, Ms. Bateman strategically short-served Mr. Jaggernauth with a family law Application on the Friday before Thanksgiving, October 5, 2018. In the Application, Ms. Pimenta sought a Certificate of Pending Litigation (“CPL”) in respect of Mr. Jaggernauth’s home. She also made a claim for a constructive trust in the home. The CPL was returnable on October 9, 2018, and was granted. The effect of this was to preclude Mr. Jaggernauth from encumbering or selling his home until the litigation between him and Ms. Pimenta was resolved.

[72] The only other text messages from the accused to Ms. Pimenta are on September 27, 2018, when he texted: “Messed up” and on October 8, 2018 when he texted, “Happy Thanksgiving”. It is unclear what the first text means. Given that he received the Application on October 5, 2018, and the matter was to be in court on October 9, the second message appears to be a sarcastic one.

[73] The accused’s Answer to Ms. Pimenta’s Application was due 30 days after he was served with the Application, making it due early November 2018.

Conclusions on Motive

[74] The Crown submits that the acrimonious family law dispute motivated Mr. Jaggernauth to want to kill Ms. Pimenta.

[75] The defence concedes that Mr. Jaggernauth was upset about the family litigation between them and that he wanted to minimize his financial loss. But, says the defence, the fact that his Answer was due in early November means that the family litigation was at a very early stage, rather than a critical or late one. This meant that Mr. Jaggernauth was really not at risk of losing anything imminently.

[76] Moreover, the defence points out that killing Ms. Pimenta would not have meant an end to the litigation, as her estate would have been able, and perhaps required, to continue the litigation. Thus having her killed could not solve his problem. While this may well be correct, people do not always appreciate that what appears to be a solution in the short term may not be in the end. There is no evidence as to whether Mr. Jaggernauth knew how Ms. Pimenta’s death might affect her family law claim. It is not the sort of matter about which one would seek legal advice. I cannot conclude that the fact that legally Ms. Pimenta’s death would not have left Mr. Jaggernauth better positioned, means that he was not motivated to have her killed so as to try to end her family law claim.

[77] In my view, the evidence of what happened both before and after the May 2018 separation, including into the fall of 2019, demonstrates, cumulatively, that Mr. Jaggernauth was highly motivated to kill Ms. Pimenta or to have her killed.

[78] He was well aware, when she left him in May, that she wanted her name on title to his home so as to reflect her significant contribution to the home. His conduct in May and into the summer demonstrates that he was desperate, perhaps obsessed, with Ms. Pimenta and resuming the relationship. While part of his motivation may well have been wanting to be with her, his anger about her seeking the return of her $350,000 and the potential for litigation also permeate his messages. He was increasingly upset and frustrated about their financial dispute and what litigation might mean for him.

[79] By August 8, 2018, two things were clear to Mr. Jaggernauth. First, Ms. Pimenta had moved on from him to another relationship. Any prospect of them resuming their relationship and amicably resolving the issue of the $350,000 was gone. Second, Mr. Jaggernauth knew that Ms. Pimenta had retained counsel to advance a legal claim for the money that he owed her. He undoubtedly appreciated that if Ms. Pimenta succeeded in court, he would likely have to sell his house, which was his pride and joy. In my view, Mr. Jaggernauth understood that the prospect of losing his home had gone up and it made him angry. His motivation to have Ms. Pimenta killed had also gone up.

[80] Thereafter, things did not get better for Mr. Jaggernauth. It is impossible to say with certainty what he was doing at Ms. Pimenta’s home shortly after midnight on August 15, 2018. I find he was trying to surreptitiously look around the side of the property and backyard, possibly in contemplation of his next steps. By that point, he had listed his home for sale, but removed that listing, likely upon learning of the caution. He had retained counsel, no doubt meaning that he had come to understand the risks he faced of having to sell his house. Ms. Pimenta’s counsel had obtained a CPL for the property in October. Mr. Jaggernauth knew that he had no legitimate option but to face the family law litigation. I find that the stakes were higher than they ever had been for him and that he knew it.

[81] Ms. Pimenta testified that she did not know of anyone who wanted to kill her. That evidence is of limited importance, given that people may or may not be aware of someone wanting to kill them. I am satisfied on the basis of the evidence I have set out that that Mr. Jaggernauth had a motive to kill Ms. Pimenta. There is no evidence of anyone other than Mr. Jaggernauth with a motive to kill Ms. Pimenta. There is no onus on him to prove that others were motivated to kill her. He has no obligation to prove anything. But the fact that the Crown has established that Mr. Jaggernauth had a motive to kill Ms. Pimenta, and the absence of any evidence that anyone else had a motive to do so, are both factors to consider in determining whether that Crown has proven that he is the person who attempted to have her killed: R. v. Papasotiriou, 2023 ONCA 358, at paras. 107-109.

Evidence of the accused’s utterances before the attack on Ms. Pimenta

[82] The Crown relies on utterances made by Mr. Jaggernauth as further evidence that he intended to have her killed. There are utterances to Mr. Eakin and to Mr. Allan. I shall address each.

Utterances to Mr. Eakin

[83] While William Eakin, known as Paul, testified for the Crown, it was obvious that he did not want to be before the court. He declined to review his statements before testifying and chose not to bring his reading glasses to court, precluding him from reading anything to refresh his memory while he was testifying.

[84] He testified that he was a former member of the Satan’s Choice Motorcycle Club, having retired when the Hell’s Angels took over his Club years ago. He has been in and out of jail. He distrusts the police. He was a difficult witness who often did not wait for questions to be asked before giving evidence he wanted to present, even if it was not responsive to what he had been asked.

[85] Mr. Eakin has been friends with Mr. Jaggernauth for more than 10 or 15 years. They met when Mr. Jaggernauth had a truck driving school business and would go to Mr. Eakin’s shop to have his truck repaired. He described friendly times he had with Mr. Jaggernauth and his ex-wife Natalie when they and their kids would visit on his boat. Mr. Jaggernauth would drop by Mr. Eakin’s home for drinks, or go by his garage when Mr. Eakin gathered his buddies there for drinks.

[86] Mr. Eakin said that Mr. Jaggernauth was familiar with his past and knew he had been in a motorcycle club. He acknowledged that Mr. Jaggernauth had probably overheard things about how the club works. In fact, he recounted having told Mr. Jaggernauth that “you don’t want to deal with the club” because it is not a situation in which you pay the club and get business done. Instead, as Mr. Eakin described it, the club works on a system of IOUs and if you owe the club “you are not ahead of the game”. He said that they had friends with large debts and that he had told Mr. Jaggernauth, “listen before you think about that or if you really want to go through that, it is not paying them or take a percentage of it, it is an IOU to them”. It was not clear when this discussion took place.

[87] Once Mr. Eakin closed his shop, he and Mr. Jaggernauth saw less of each other and went in different directions. Mr. Eakin described them as remaining friends who still had the odd phone call or text message, but said that both of them were busy with their lives and that six months might pass between contacts.

[88] Mr. Eakin thought he had met Mr. Jaggernauth’s subsequent live-in girlfriend at his house when he dropped off a bike for Mr. Jaggernauth’s son. Ms. Pimenta described having seen Mr. Jaggernauth’s biker friend when he came by the house on a motorcycle. They did not meet, but she said that Mr. Jaggernauth told her that he (Mr. Eakin) had been in jail.

[89] Mr. Eakin was called to testify primarily about what the accused had said to him in a telephone call prior to Ms. Pimenta being attacked. He first told police about that call when they went to his home on November 5, 2019. They had with them a list of calls between Mr. Eakin and Mr. Jaggernauth’s phones between May and November 2018.

[90] Mr. Eakin testified that when the police told him that they were investigating Mr. Jaggernauth, he knew exactly what they were there for, and told them, “it is the phone call that he made”. Mr. Eakin’s evidence revealed that he believed, erroneously, that when the police came to see him, they already had recorded and transcribed the content of this call between him and Mr. Jaggernauth. This mistaken belief seems to have been from his experience in Florida, where, in his opinion, when certain words are said over phone calls, police are alerted and they then intercept and record calls. His evidence about the call, therefore, began from his mistaken belief that the police had recorded what was said by whom and when.

[91] Mr. Eakin described a call made by the accused to him. In chief, he said that after having a few drinks, Mr. Jaggernauth called and told him that he was not happy about the fact that “his woman” and he were splitting up. Mr. Jaggernauth told him that he was “going to lose everything”. He said that Mr. Jaggernauth had told him that his ex was trying to take everything.

[92] Under cross-examination, Mr. Eakin said that in the call, the accused had been venting and “sort of drunken rambling” for the whole conversation. He said that he had been focused on his work and only half listened to the accused’s rant.

[93] Mr. Eakin was unable to provide the exact words Mr. Jaggernauth used. His best recollection in chief was that he said that they were splitting up and “do you know anybody that could take her out”. Under cross-examination, he said, “I remember him saying “you know I wish someone would take her out””. He later said that he had never tried to tell the police what Mr. Jaggernauth had said word for word. Under re-examination, Mr. Eakin said that Mr. Jaggernauth’s words could have been about his ex being “taken out” or “got rid of” and that “it all comes out the same thing at the end of the day”. He also confirmed in re-examination that the accused had asked him “do you know anybody?”

[94] There is no issue that whatever Mr. Jaggernauth said to Mr. Eakin in that call made him very angry. He explained that it was common for he and his buddies to vent and rant about their ex-spouses in person, including saying “that ah you know I wish someone would take care of my woman for me, you know, that way I don’t lose stuff”. However, he believed that this should never be done over the phone because doing so attracts police attention. He described himself as “pissed” about what the accused said to him. Upon hearing what Mr. Jaggernauth said, Mr. Eakin said he called Mr. Jaggernauth a name and hung up. Mr. Eakin believed that what had been said would likely attract police attention and bring them to his door, something he definitely did not want.

[95] Referred to the “ranting” by his buddies he had described, Mr. Eakin was asked if any of them had killed their spouse. He said none had, but volunteered that, “if anyone had the means to do it, I could have had it done”. Asked to explain this, he responded, “well, because I was with the Club with my first wife”. He elaborated that he had been dealing with a “big circle”, by which he meant the “Chinese mafia”, who had offered that they could get rid of his ex-wife for him, an offer he declined.

[96] Mr. Eakin said that following his call with Mr. Jaggernauth, when he had cooled down, he called him to explain to him why he had been so “pissed”. He said that Mr. Jaggernauth did not dispute the content of what he had said. Instead, Mr. Jaggernauth apologized for it and said he had been drinking and been upset. Mr. Eakin thought everything was over.

[97] Exhibit 10 lists the communications between Mr. Eakin and Mr. Jaggernauth between May and November 2018. There were 9 calls and text messages between their phones between June 7 and November 2, 2018. The longest calls are on June 8 for 371 seconds (over 6 minutes) and on September 12 for 310 seconds (over 5 minutes). The rest are all under 21 seconds.

[98] In an effort to clarify which of those calls was the one that so angered Mr. Eakin, questions were posed about both when the call took place and its length.

[99] Mr. Eakin said he was not good with times and dates. Having reviewed the transcript of his evidence as a whole, it is clear that he cannot say which of the calls in Exhibit 10 was the one in which the accused said things that so angered him and which is the call in which he explained to the accused why he had been angry and received the accused’s apology.

[100] I am also not able to use the length of the calls or the origin of them to determine from Mr. Eakin’s evidence when the critical conversation between he and Mr. Jaggernauth took place. In chief, Mr. Eakin said it was a short call, without qualifying what he meant by that. Under cross-examination, he said he did not recall how long it was, but would not agree it was more than 5 minutes or more than 3 minutes, insisting that he did not know. In terms of who placed the call, most of Mr. Eakin’s evidence was that the accused had called him and interrupted him while he was working. At the same time, he also described them as having played “phone tag” at various points, leaving open, in my view, the possibility that the accused initiated a call and Mr. Eakin called him back. I cannot reliably draw any conclusion as to the length of the call or who made it.

[101] A further area of dispute related to Mr. Eakin’s evidence about what he knew when he gave his police statement. The defence suggests that Mr. Eakin’s memory may have been tainted by what the police told him about Ms. Pimenta having been attacked.

[102] I do not accept this.

[103] Mr. Eakin testified that when the police came to see him, he had been unaware that Ms. Pimenta had been attacked. There was considerable evidence about what the police told him prior to him providing them with any information. Under cross-examination, he explained that before the police spoke to him on video, they spoke to him at the door of his home and they told him that they were there about Roger Jaggernauth and about phone calls he had with the accused. Mr. Eakin testified that before he gave his videotaped statement, he understood that Mr. Jaggernauth was being investigated for attempt murder.

[104] However, under re-examination, I permitted the Crown to refresh Mr. Eakin’s memory from the transcript of his police statement as to what he knew when he gave his statement. He agreed, having had his memory refreshed by his statement, that he learned for the first time during the course of his videotaped statement that Mr. Jaggernauth’s ex had been attacked and that the police were investigating her attempted murder. This was after he had already told police about the critical call.

[105] While there is clearly a discrepancy between what Mr. Eakin agreed to under cross-examination and his evidence under re-examination, in my view, his re-examination is more reliable. He consistently said that his memories respecting timing are poor. However, he testified that when he was told by police about the attempt murder, after having recounted to them what happened in the critical call, he was shocked. That accords with his evidence that he knew nothing about what had happened to Ms. Pimenta until after he told police about what Mr. Jaggernauth had said in the critical call.

[106] Having carefully reviewed the evidence of Mr. Eakin and the submissions of counsel, I conclude the following. Mr. Jaggernauth knew that his friend Mr. Eakin had been in a motorcycle club and spent time in jail. He had been told by Mr. Eakin how things in the club worked. He likely knew that Mr. Eakin could access a hitman, a fact that Mr. Eakin chose to volunteer in his evidence and no doubt shared with his buddies. Mr. Eakin and Mr. Jaggernauth talked about the “club”. At some point after May 2018, there was a phone call between them in which Mr. Jaggernauth vented and complained to Mr. Eakin about splitting up with his spouse, Ms. Pimenta. He ranted that he did not want to lose everything. Mr. Eakin did not pay close attention to this part of the conversation.

[107] This call was not merely Mr. Jaggernauth ranting about the end of his relationship with his friend. While Mr. Eakin does not remember precisely the words Mr. Jaggernauth used that made him angry, whatever Mr. Jaggernauth said caused him to perk up and pay attention. I base this on the fact that whatever Mr. Jaggernauth said was serious enough that it caused Mr. Eakin to become very angry and to hang up. It was the sort of thing that he perceived would attract police attention. It was the sort of thing he believed should never be said over the phone. I cannot conclude, as the defence suggests, that this was merely ranting about some wish that someone would take his wife out. I accept Mr. Eakin’s evidence under re-examination that Mr. Jaggernauth asked him if he knew anyone who could either take out or get rid of his ex-spouse, or something equivalent. While they had talked about their personal situations before, this was not Mr. Jaggernauth simply ranting in a drunken upset haze. I find it was a calculated question to a person Mr. Jaggernauth knew was connected to a biker club and who could set up a hit. I do not accept as reliable evidence Mr. Eakin’s overt attempt to downplay the significance of what his friend said.

[108] I cannot determine from Mr. Eakin’s evidence alone which of the seven calls listed in Exhibit 10 is the one in which Mr. Jaggernauth asked if he knew anyone who could take out or get rid of his wife. It could not have been the 2 second calls on June 8 or 19. Given the ranting Mr. Eakin described, the calls of 17 seconds on June 7 and 20 seconds on June 19 also seem too short. That leaves the longer calls of 371 seconds on June 8 and 310 seconds on September 12, 2018. While both of these were made by Mr. Eakin, as opposed to originating from Mr. Jaggernauth as described by Mr. Eakin, I am not troubled by this. Who placed the call is a pretty insignificant detail and there is evidence that they often played phone tag to communicate. The accused contacted Mr. Eakin the day before each of these calls, and on either June 8 or September 12, Mr. Eakin could have been returning that overture.

[109] I am satisfied that on either June 8 or September 10, 2018, Mr. Jaggernauth asked Mr. Eakin if he knew anyone who could take out or get rid of his wife. For the following reasons, it seems much more probable that this call was on September 10, rather than June 8:

• While Ms. Pimenta had moved out before the June 8 call, the messages that Mr. Jaggernauth was sending to her make clear that he was still trying to be with her. She was leading him to believe this was possible. Their holiday in Cuba occurred after this. Mr. Jaggernauth had not yet accepted the separation and was still pursuing the relationship.
• The June call predates Ms. Pimenta’s repeated claims for the $350,000 in Mr. Jaggernauth’s home. While she had spoken to Ms. Bateman, she had not yet retained her and the caution had not yet been put on Mr. Jaggernauth’s home. The fact that he was at risk of losing to Ms. Pimenta everything that was important to him had not yet crystalized.
• Immediately after the June call, Mr. Eakin called Mr. Jaggernauth back. This is inconsistent with his evidence that he needed time after hanging up on Mr. Jaggernauth to cool off.

[110] I cannot and need not make a factual finding as to when the call took place. I find that it did happen and that Mr. Jaggernauth said what I have already found he said. This is, in my view, an important piece of circumstantial evidence that Mr. Jaggernauth was so upset and angry about the prospect of Ms. Pimenta taking everything from him that he was actively taking steps toward having her killed. This is a piece of compelling circumstantial evidence that he is the person who ultimately arranged for the attempt to be made on Ms. Pimenta’s life.

Utterances to Mr. Allan

[111] Mr. Jaggernauth began a job in the fall of 2018. He reported to a manager, David Allan. They were not friends.

[112] Mr. Allan testified about what Mr. Jaggernauth said one day after walking into his office upset and agitated. The accused said that he wanted to or could kill his wife. Mr. Allan testified that the accused made this statement twice. Further, Mr. Jaggernauth said that she did not put a penny into the house or car. Mr. Allan did not believe that the accused was joking. He tried to calm him, telling him to relax and chill and that “we’ve all been there”. His efforts to de-escalate were unsuccessful. He said Mr. Jaggernauth left still agitated.

[113] Mr. Allan said that when Mr. Jaggernauth left his office, he knew what he had said was not an off the cuff comment. He described it as strong and unusual and something that he remembered, even though the conversation was not more than 15 minutes. He described Mr. Jaggernauth as showing anger beyond anything he had seen before, which he put at a 9/10. Both the content and the way the message was delivered were concerning.

[114] While the defence concedes that Mr. Jaggernauth complained to Mr. Allan about Ms. Pimenta, it challenges the credibility and reliability of what Mr. Allan reported hearing Mr. Jaggernauth say, suggesting that Mr. Jaggernauth was not as angry, inappropriate or concerning as Mr. Allan conveyed him to be.

[115] Mr. Allan was cross-examined at length on his reporting and recording of what he alleged was said to him.

[116] The defence suggests that his evidence of what notes he took of what Mr. Jaggernauth said reveals that he is not credible or reliable. It also suggested that he did not report what was said to him, further undermining his evidence about how serious what he heard really was.

[117] Mr. Allan testified that he was a meticulous note-taker at work. He agreed that he kept general notes of concerns about employees and that he had made specific notes of concerns about the accused. The more noteworthy something was, the more likely it was that he made a note.

[118] There is no question that Mr. Allan did not report what had been said to his supervisor immediately after the accused left his office. While he had been reporting concerns with employees’ performance issues, including respecting Mr. Jaggernauth’s edginess and anger issues with respect to the internal working of the fleet safety team, he made no report of what had been said. He testified that he did not have training in dealing with this sort of thing. The suggestion made by the defence is that if this had been as serious as Mr. Allan now claims, he would have reported it at the time. In my view, there is a qualitative difference between reporting to superiors issues that related to Mr. Jaggernauth’s employment and reporting matters that were more personal. I do not think Mr. Allan’s failure to make an immediate report undermines the reliability of what he testified was said.

[119] Mr. Allan’s evidence about the extent to which he noted or documented or recorded what Mr. Jaggernauth said was the subject of significant cross-examination. At one point, he said he did not formally document what Mr. Jaggernauth said to him, which he seemed to acknowledge had been an error on his part. At the same time, he was clear that he had taken some notes, either on a pad or in a notebook, at the time or shortly after his conversation with Mr. Jaggernauth. Later, he met with his supervisor, Mr. Brierely. After that meeting, he may have made more formal notes. He agreed that these notes were made knowing that there were serious allegations against Mr. Jaggernauth relating to his ex-spouse.

[120] When he spoke to the police, Mr. Allan did not provide to them any notes that he had. He agreed that he could have, but explained that he had been nervous about having been sent to the police by his employer. Under cross-examination, Mr. Allan agreed that in his police statement, he had said that he had not documented what had been said. He explained the apparent inconsistency between not having documented but having made notes. In his view, documenting meant something other than just making a note, which he had done. While it was suggested to him that he never wrote anything down at the time, he was sure he had written something down at the time on a pad or in a notebook.

[121] I find as follows. Mr. Allan was responsible for Mr. Jaggernauth’s workplace performance. He was required to document concerns about his work performance and to report them to his superiors. There seems to be no dispute that he did so.

[122] Mr. Allan’s note-taking obligations respecting non-work issues are far less clear. As he explained, what Mr. Jaggernauth said to him in their conversation was concerning and memorable. It was decidedly not work related. It took Mr. Allan aback. It stood out to him. He did not tell anyone about it immediately. He was not sure he had to. He believes he made some notes, which I accept, although he did not regard whatever record he created as being a formal documentation of the conversation. I accept that he was internally inconsistent as to what he wrote down and when. However, I see little turning on what he may or may not have written down at the time. His memory about the recording of the conversation is hardly surprising, given the passage of time and the relative insignificance of this detail to him at the time.

[123] What stood out to Mr. Allan, and still does, is the rare and unusual content of the conversation he had with Mr. Jaggernauth. I accept Mr. Allan’s evidence that Mr. Jaggernauth appeared very agitated and angry and said that he could or wanted to kill his wife. Mr. Allan may not know the precise words that the accused used, but I accept the tenor and tone of what he reports Mr. Jaggernauth said. I find he has accurately reported what happened in that conversation.

[124] In reaching my conclusion, I have considered and rejected two additional arguments made by the defence respecting why Mr. Allan is not credible. Mr. Allan agreed that he knew what Mr. Jaggernauth was accused of prior to speaking to the police. He had been told about the allegations by his General Manager and acknowledged having done a google search. In my view, there is no evidentiary foundation to the defence submission that this tainted what he reported to police or the evidence that he gave at trial. It is mere speculation.

[125] Further, I do not see this as a case in which there is any evidence to support the defence suggestion that Mr. Allan may have misperceived Mr. Jaggernauth’s anger as more elevated than it in fact was because of subconscious racial prejudices.

[126] I accept the defence position that racial stereotypes can subconsciously affect people’s perceptions, and that they could have affected Mr. Allan’s perceptions. However, I do not think this record supports a conclusion that, because of unconscious bias, Mr. Allan misheard or misperceived what Mr. Jaggernauth said. There is just no foundation upon which to rest a conclusion that Mr. Allan mistakenly perceived Mr. Jaggernauth to be angrier than he in fact was as a result of unconscious bias. There is no basis to suggest that in characterizing Mr. Jaggernauth’s anger at a 9/10, Mr. Allan relied on anything other than his personal observations of what Mr. Jaggernauth, a person he knew and supervised, said and did. Counsel chose not to explore the possibility of unconscious bias or racial stereotyping with Mr. Allan when he testified. In all these circumstances, I decline to find Mr. Allan’s evidence tainted or unreliable on this basis.

[127] I turn now to the significance of this evidence. On the one hand, there is merit in the defence position that if Mr. Jaggernauth were planning an imminent attack on Ms. Pimenta, it would have made little sense for him to have told his boss that he wanted to kill his ex-wife. The submission that it would have been illogical and foolish for him to do so is all the stronger because the two men had only known each other for a short time, were not friends, and Mr. Allan had a reputation for taking notes of workplace conversations. However, the mere fact that what Mr. Jaggernauth said reflects a poor decision on his part does not mean that it did not happen. It is not, in my view, a basis upon which to reject Mr. Allan’s evidence in the circumstances of this case.

[128] Nor do I accept the defence position that what Mr. Jaggernauth said can be dismissed as merely the sort of thing a person who was angry about a domestic dispute would have said hyperbolically. I agree that people sometimes speak hyperbolically about wanting to kill someone else in circumstances in which they have no intent to do so.

[129] However, in this case Mr. Allan heard what Mr. Jaggernauth said to him and the manner in which he said it. It was a workplace situation and not one where there was a friendship. Mr. Jaggernauth seemed very angry and agitated. It was unusual and memorable for Mr. Allan, making him think he should pay attention. I accept that he found what was said to be genuinely worrisome. It was not merely a person ranting or speaking hyperbolically.

[130] In my view, Mr. Jaggernauth’s statement to Mr. Allan, a few weeks before there was an attempt to kill Ms. Pimenta, revealed the magnitude of his anger towards Ms. Pimenta at the time. He was unable to control that anger at work, so much so that he lost his cool and composure with his manager, revealing that he wanted to or could kill her. I find this to be a further compelling piece of circumstantial evidence that Mr. Jaggernauth wanted Ms. Pimenta dead.

Evidence respecting the accused’s finances

[131] There is no evidence that the crossbow shooter was paid or, if so, how much. Yet the Crown points to the evidence of Mr. Jaggernauth’s cash transactions to suggest that he had access to large sums of money and that he withdrew a total of $90,000 in untraceable money between July and October 2013, money that could have been used to pay a hitman.

[132] Exhibit 11 provides a chronology of the relevant withdrawals from his bank account.

[133] On July 9, 2018, Mr. Jaggernauth withdrew $45,000 in cash from his bank account. By that point, Ms. Pimenta had made clear to him that she wanted $350,000.

[134] Later that month, Ms. Pimenta retained Ms. Bateman. Mr. Jaggernauth seems to have been aware that she was speaking to a lawyer almost immediately. By August 31, 2018, he had retained his own counsel, who had reached out to Ms. Bateman.

[135] On October 1, 2018, Mr. Jaggernauth withdrew $15,000 from his bank account: $3,000 in cash and the other $12,000 as an unidentified withdrawal. The Agreed Statement of Facts suggests that this was likely a withdrawal through a cheque or bank draft.

[136] On October 9, 2018, Ms. Pimenta received a CPL over Mr. Jaggernauth’s home. The next day, he withdrew $30,000 in cash from his personal line of credit.

[137] The forensic accountant retained by the Peel Regional Police Service found there was nothing inherently suspicious about his financial transactions, but highlighted these cash withdrawals because there was no paper trail as to where the money went.

[138] There are countless possible explanations for Mr. Jaggernauth having made these withdrawals in the circumstances he was in. He could have been trying to hide money from Ms. Pimenta. He could have been using the money to retain counsel. He could have been using the money for a host of completely reasonable unknown purposes.

[139] In my view, there is no evidence from which to infer that this money was used to pay the shooter. While it is possible, on the basis of the evidence it is just too speculative to infer anything nefarious about these withdrawals here.

After-the-fact conduct

[140] Evidence of after-the-fact conduct is circumstantial evidence. It allows a fact finder to draw particular inferences based on a person’s words or actions. Those inferences must be based on logic, common sense and human experience. They must be “reasonable according to the measuring stick of human experience" and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties' positions, and the totality of the evidence: R. v. Wood, 2022 ONCA 87, at para. 119; R. v. Calnen, 2019 SCC 6, at para. 112, per Martin J. (dissenting, but not on this point); R. v. Hudson, 2021 ONCA 772, at paras. 136-138.

[141] At the same time, there are important limitations when considering evidence of after-the-fact conduct. As Martin J. explained in Calnen, at paras. 116-117:

Conduct that is "after-the-fact", and therefore removed in time from the events giving rise to the charge, carries with it a temporal element that may make it more difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions.

To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused's behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation: see White (1998), at para. 22; White (2011), at paras. 23-25; R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 143.

[142] Evidence of after-the-fact conduct should not be considered in a piecemeal fashion. The proper approach is to consider it as a whole. This is because “post-offence conduct is best assessed cumulatively and not in isolation. It is only when the components of the conduct at issue are viewed together that the strength and cogency of the inference sought can be measured”: R. v. McLellan, 2018 ONCA 510, at paras. 47-49, leave to appeal refused, [2009] S.C.C.A. No. 338; Hudson, at para. 140.

[143] Ms. Pimenta was shot around 8:00 p.m. on November 7, 2019. Mr. Jaggernauth’s conduct after this is relied on by the Crown as circumstantial evidence supporting his guilt in the attempt to kill her. It was not until 4:22 p.m. on November 22, 2018 that police first contacted Mr. Jaggernauth. They advised him what had happened to Ms. Pimenta, that he was being investigated and requested that he make a statement, which he did on November 28, 2018. He told them that he first learned about the attack from officers on November 22, 2018.

[144] Accordingly, the alleged after-the-fact conduct divides into two periods. The first is up to November 22, 2018, before the time at which Mr. Jaggernauth says he first became aware of Ms. Pimenta being attacked. The Crown submits that Mr. Jaggernauth would have had no reason during this period to believe that the police were following him, or to try to evade their detection. Thus, any counter surveillance, or evidence of being “heat conscious”, suggests he knew of the attack on Ms. Pimenta can be explained as an effort to avoid police detection. The second period is after November 22, 2018, when Mr. Jaggernauth was aware that he was a suspect in the investigation relating to Ms. Pimenta.

The period before November 22, 2018

[145] Police went to Mr. Jaggernauth’s home to begin surveillance of him on the evening of November 7, 2018. He was not observed that evening. On November 8, 2018, Mr. Jaggernauth went to work, but left early, going home sick. Mr. Allan received a text message that night that Mr. Jaggernauth needed tests done, and a doctor’s note that he would be off work for three days.

[146] On November 8 at 7:46 p.m., Mr. Jaggernauth’s blue Dodge Ram was parked in his driveway. Surveillance officers testified that he and Julia Hite, his girlfriend, pulled into his driveway in separate vehicles: she drove a grey Hyundai Elantra and he drove a grey Kia Rio. Both vehicles were registered to her. They went into the house briefly and then left, again in separate cars, followed by the police surveillance team.

[147] The Crown submits that the accused engaged in counter-surveillance actions that day. In support of this, the Crown relies on the observations of Officers Birt and Weatherley, who followed the two vehicles from Mr. Jaggernauth’s home that evening. There are two discrete aspects to the surveillance evidence: the evidence of the driving from the accused’s home to Ms. Hite’s home and the evidence about the surveillance of them in her neighbourhood later that evening.

[148] After leaving Mr. Jaggernauth’s home, the two of them went in separate cars to a plaza and to various businesses, none of which has any significance. The significant part of the surveillance relates to the driving.

[149] According to Officer Birt, as they drove on the QEW after leaving the accused’s home, they both drove below the speed limit, or at least slower than the speed of most of the traffic. This stood out to the officer because it was suspicious, and because he explained that it is more difficult to conduct surveillance when a vehicle goes slowly because the police stand out. The officer agreed that there was nothing noted in the surveillance report about anyone having driven slowly. He was sure that he had called it out over the radio so other surveillance vehicles would be aware of it.

[150] Officer Birt next saw Mr. Jaggernauth’s vehicle in an alley leading to 4 Castle Park Blvd (“Castle Park”) in Woodbridge, Ms. Hite’s address. Officer Birt was parked in the alley and saw the accused drive southbound with the vehicle headlights off. He identified the accused by the license plate on the car. Mr. Jaggernauth continued south and to the garage behind 4 Castle Park, where he parked. While being in the alley was not suspicious, as it was the access point for the garage, the officer thought that the headlights being off was significant as it could make surveillance more difficult. In this case, it did nothing to impair the officer’s identification of Mr. Jaggernauth’s car.

[151] Officer Weatherly also testified about the police surveillance of the two vehicles on the QEW and Highway 427. He described them driving in tandem on the QEW, which made surveillance more difficult.

[152] The surveillance observations of the accused between them leaving his home and arriving at Ms. Hite’s home are pretty innocuous. They were driving separate vehicles from one home to the other, stopping along the way for errands. There was nothing evasive or particularly unusual in the way that they drove. People going to the same location often drive in tandem. While it may make surveillance more challenging, it alone is not indicative of anything.

[153] I have considered Officer Birt’s evidence that they drove more slowly than usual on the highway. He is certain he called this out over the radio, although there seems to have been no record made of it. He testified that he believed it was suspicious. One would expect, given this was the night after the attack on Ms. Pimenta, and the first night on which police were making any observations of Mr. Jaggernauth, that if there was something important, it would have been noted. All Officer Weatherley testified to was that they drove in tandem, saying nothing about their speed. On the basis of Officer Birt’s evidence alone, in the absence of a note having been made, I cannot find as a fact that the driving occurred as was described. Moreover, even if it did, it is difficult to infer anything from it, given the evidence as a whole, including that they were driving in tandem.

[154] While I agree that driving with lights off in the alley may be unusual, I do not think an inference can be drawn from Officer Birt’s observation, by itself, that Mr. Jaggernauth was trying to avoid being seen. First, it is noteworthy that shortly before, Mr. Jaggernauth had been out in a public plaza, exposing himself to the observations of anyone watching him and seemingly unconcerned about being seen. Second, Mr. Jaggernauth would have had no idea that Officer Birt was parked in the alley that led to Ms. Hite’s garage. Third, there seems to have been some other light in the alley – at least enough for the officer to record his license plate. In other words, turning his headlights off was certainly a poor way to try to hide himself from detection, if that is what he was trying to do. On the other hand, the fact of the lights being off can only be assessed in the context of the rest of the evidence from that day and for the period before November 22, 2018.

[155] Mr. Jaggernauth arrived at Ms. Hite’s Castle Park home at 9:14 p.m. Ms. Hite arrived home at 9:29 p.m.

[156] Officer Weatherley was the only officer who made observations made of them later that evening. His vantage point for surveillance was on the east side of the park that divides Castle Park north of Sonoma Blvd. His vehicle was turned off, with the intent that it look like a parked car. He looked west towards the home. He was sure that nothing about his driving earlier in the day would have alerted either Mr. Jaggernauth or Ms. Hite to be suspicious of his car.

[157] According to Officer Weatherley, at 10:53 p.m., he first saw Ms. Hite walking north, alone, on the west side of the intersection to his south. She crossed the road, walking to the west side of his road and then north on the street he was on. He thought it was clear that she had an interest in his car: she held her look on his vehicle as she passed, she looked at him and then turned, and she looked back at his vehicle for a second time. He thought she had tried to make it appear casual and natural, but believed it had been clear that she was looking at his vehicle. She went north to Colle Melito Way and then south on the west side of Castle Park.

[158] The officer said that as Ms. Hite walked past his vehicle, he saw Mr. Jaggernauth emerge from Sonoma Blvd and walk north on Castle Park to the front steps of Ms. Hite’s home. She joined him, standing facing him. At one point, she turned her torso towards the officer’s vehicle and he saw Mr. Jaggernauth lean to his right to look around her at his vehicle. Shortly after, Mr. Jaggernauth stood up and the two of them walked north on her street. They turned right on Colle Melito, towards the east branch of Castle Park, where he was located. They turned right on Castle Park towards his vehicle and as they did so, he turned off his radio and hid so that they would not see him if they peered in. He was very concerned by that point that they suspected something about his vehicle.

[159] There were many areas of his evidence about these observations upon which Officer Weatherly was challenged. Defence counsel suggests that he was not credible on the issue of how conspicuous he was and was not credible when he would not concede that he and Officer Birt had missed observing the accused leaving Ms. Hite’s home. He also refused to acknowledge that it was possible that Ms. Hite might have seen him on the floor of his car where he had hidden when she and Mr. Jaggernauth seemed to be approaching his car. It is suggested that his lack of candour about the weaknesses in the surveillance should cause me to conclude that he is not credible about the investigative techniques he used and whether he blended in as he claimed.

[160] Ultimately, while the defence accepts that Ms. Hite seemed to have an interest in the officer’s car, it is suggested that this may not be as a result of an extreme level of vigilance, and could well be because the officer may have attracted Ms. Hite’s attention by being less covert than he claimed. Second, the defence submits that whatever interest Ms. Hite had in the officer, there is no basis to impute this to Mr. Jaggernauth as after-the-fact conduct.

[161] I agree with the defence that Officer Weatherly was reluctant to acknowledge any possible shortcomings in the surveillance conducted by police that day. On his evidence, no one but the most hyper-vigilant person who thought they were being watched would ever have had any reason to give the car he was parked in a second look or have an interest in it. It is certainly possible that the officer was incorrect about that. Certainly, he and Officer Birt missed seeing Ms. Hite or the accused leave the house later, something he would have been expected to acknowledge.

[162] Notwithstanding these difficulties with the officer’s evidence, Officer Weatherly had a detailed and fulsome recollection as to what happened when Ms. Hite and Mr. Jaggernauth walked in the neighbourhood that evening. While there is no evidence as to where they came from, there is no issue that shortly before 11:00 p.m., Ms. Hite and Mr. Jaggernauth were walking around the immediate vicinity of her home, separately. They had no apparent purpose, other than investigating or observing his vehicle. Initially, it was certainly she who appeared to have been interested in his vehicle. However, I accept, on the basis of the officer’s observations of them on the front step, that they had some discussion about his vehicle and, at least by that point, Mr. Jaggernauth had an interest in it as well, resulting in them setting out together to look at it further. I have no doubt that Mr. Jaggernauth’s decision to go with Ms. Hite towards the vehicle, after she had pointed it out to him and he had looked around her at it, demonstrates that at least by that point, he was interested in the officer’s vehicle.

[163] November 14, 2018 is the next date the Crown says that the police made relevant surveillance observations of Mr. Jaggernauth’s post-offence conduct. The pertinent observations were made by Officers Callacott and Weatherly.

[164] The police surveillance began at the accused’s workplace on Eastern Avenue. He was followed from there to the LCBO and Walmart in Vaughan, and then back to Ms. Hite’s home at 4 Castle Park Blvd. Officer Callacott testified that he saw the accused driving in an unusual manner in that his driving was “extremely slow”. He testified that when he was on the highway, Mr. Jaggernauth drove between transport trucks (either in front of them or behind them) at a low rate of speed, in what the officer described as “in tight in terms of proximity” to the truck in front of or behind him. Under cross-examination, the officer agreed that while he had seen the accused drive in this manner a number of times when he drove Ms. Hite’s Rio, he could not say for certain that he made those observations on November 14.

[165] Like Officer Callacott, Officer Weatherley described surveillance of Mr. Jaggernauth as he went from work to home and then travelled to the Vaughan LCBO and Walmart using Highway 27. Officer Weatherley testified that his general observations of Mr. Jaggernauth that day were consistent with other days that he saw him driving Ms. Hite’s Rio in that Mr. Jaggernauth drove under the speed limit and positioned his car in front of, between or behind tractor trailers.

[166] I am not troubled by the fact that the officers have little independent recollection of their observations that day. The police surveillance in this case went on for days and days. Officers cannot be expected to have detailed and specific memories about what became fairly routine driving observations. That is why notes are kept. The crew report from that day, which was compiled on the basis of the radio reports called in by the officers conducting surveillance, included that Mr. Jaggernauth was driving slowly. I accept that Mr. Jaggernauth drove more slowly than usual on the highway on November 14.

[167] The Crown submits that taken together, the after-the-fact conduct evidence demonstrates that Mr. Jaggernauth was concerned about the possibility that police were conducting surveillance of him at a time when he told them he had been unaware that anything had happened to Ms. Pimenta. In sum, the evidence I accept for this period is that:

• On November 8, the day after the attack on Ms. Pimenta, Mr. Jaggernauth went to work and left early because he was sick. He produced a doctor’s note that he was not going to be at work for the next three days;
• He did not return to his home until the evening, arriving in a vehicle that was registered to someone else and staying a very short time;
• He left his truck at home and continued to drive Ms. Hite’s vehicle. After being in a plaza doing errands in public view, Mr. Jaggernauth drove to Ms. Hite’s home, where he was going to spend the night. He turned off his lights before entering the alley that led to her garage, in which he parked;
• Mr. Jaggernauth’s walking around the neighbourhood of Ms. Hite’s home later that evening revealed his interest in the officer’s parked vehicle;
• Surveillance of Mr. Jaggernauth continued on November 14, 15, 16 and 19, during which time he drove both Ms. Hite’s Rio and his own Dodge Ram. The only day of unusual driving was November 14, 2018, when he drove the Rio slower than usual. There is no evidence of any unusual driving by him on any of the other days.

[168] Viewing the evidence of November 8, 2018 cumulatively, I find that there is a sound basis from which to conclude Mr. Jaggernauth was hyper-vigilant and “heat conscious” at a time when, based on what he told police on November 28, he was unaware of the attack on Ms. Pimenta. His decision to stay away as much as he did from his work and his home and his own vehicle, combined with turning off his headlights in the alley and the late night walk in the neighbourhood, viewed together, are all suggestive of him being “heat conscious”. His obvious interest in a car parked in Ms. Hite’s neighbourhood strengthens this conclusion.

[169] There are many possible explanations for each of Mr Jaggernauth’s actions, viewed in isolation. He could have needed time off work for tests. There are many reasons why he might have been staying with Ms. Hite and driving her vehicle. The walk in the neighbourhood could be explained by Ms. Hite having been concerned that she was being followed. Or, one or both of them may have suspected that they were being followed by a similar car earlier in the day and wanted to look at it. Mr. Jaggernauth could have thought this was in relation to his family dispute or in relation to something entirely different in his life. These possibilities are highly speculative. Moreover, when all of the evidence is considered together, in my view it points to Mr. Jaggernauth having concern about the possibility police were watching him at a time when on his own statement he had no reason to.

[170] I assessed whether Mr. Jaggernauth’s hyper vigilance about the possibility of surveillance could be because his perspective as a racialized man. While the defence fairly highlights that he had been contacted by police after Ms. Pimenta’s complaints about him, this had been in August. Even acknowledging that the impact of race relations and institutionalized racism may have affected his perceptions about the police, this seems to me unlikely as an explanation for all of the after-the-fact conduct I rely on.

[171] Further, while his slow highway driving on November 14 viewed alone might be insignificant, it is known that he engaged in precisely the same kind of driving when the defence agrees that he was trying to avoid the police later, after November 22. If he drove slowly and close to transport trucks later in an effort to avoid the police, it stands to reason that the same conduct, done on November 14, was for the same purpose. This evidence strengthens the evidence from November 8, 2018 and further supports my conclusion that Mr. Jaggernauth was concerned that the police were following him and wanted to evade them.

[172] I accept as possible that Mr. Jaggernauth lied to police on November 28 when he said he had been unaware that anything had happened to Ms. Pimenta before they told him. The Crown theory is that he lied because he had organized the attack and wanted to distance himself from Ms. Pimenta as much as possible. But it is also possible that he lied to the police for some other reason, although there is no evidence about this. I find it unlikely. Certainly, there are other aspects of his statement in which he tried to distance himself from Ms. Pimenta, including saying that they had not been talking “since about May”, then casually adding that they had gone away in June and telling the officers that the last time he had seen her was “probably the end of June, July?” This was obviously an exaggeration, given that he had gone to her home and seen her and Danny Nobrega on August 7. It assisted him to try to distance himself from contact with her in the months before she was attacked. But there was no similar advantage to telling police he was completely unaware of the attack. I find it most likely that he falsely told the police that he was unaware of the attack so as to cause them to believe he had no role in it, despite the role he played.

[173] I have concluded that Mr. Jaggernauth’s after-the-fact conduct in the period before 4:22 p.m. on November 22, 2018 is circumstantial evidence supportive of an inference that he was involved in the attack on Ms. Pimenta. It is more than just suspicious conduct. In my view, drawing an inference from this evidence is not speculative. Mr. Jaggernauth’s conduct points to him being aware of the attack and aware that the police would likely have identified him as a suspect. Cumulatively, it is conduct that demonstrated he wanted to evade being seen or followed by police. It is circumstantial evidence that points to his guilt.

The period after November 22, 2018

[174] The Crown’s position on the after-the-fact conduct once Mr. Jaggernauth was aware of the fact that police were investigating him is somewhat different. All of his conduct after that point was with the knowledge that he was the target of an investigation. The Crown submits that as the police investigation unfolded, Mr. Jaggernauth’s conduct reveals his reactions to it. In short, the Crown says that when the investigation left Mr. Jaggernauth more confident that he had an upper hand over the police in the investigation, and believed that they did not suspect his involvement, he was more relaxed and engaged in less counter-surveillance. On the other hand, when the investigation “heated up” and he was more concerned, this was also evident by the manner in which he conducted himself.

[175] I accept that the chronology of the manner in which Mr. Jaggernauth conducted himself over the months following November 22, 2018 largely accords with the Crown’s theory.

[176] For instance, after the police visited his home at 4:22 p.m. on November 22, 2018 and asked him to provide a statement, his conduct shows a heightened awareness and concern about the fact that he was likely being followed. At 4:57 p.m. that day, Mr. Jaggernauth left his home in the Rio and went to a convenience store on Clarkson. He then went north on Clarkson to South Sheridan Way and, instead of going west to get back home, went east to Kiran Court. There, he made a right turn into the dead end street and then a U-turn. He parked on Kiran Court facing out to South Sheridan Way and observing traffic. Turning into a dead end street is a common counter surveillance technique because if anyone follows, there is a clear view of them and they are exposed. Mr. Jaggernauth returned to his home two minutes later and was seen by the surveillance team sitting in the driver’s seat in his driveway. This was obvious counter-surveillance activity.

[177] Later that day, Officer Weatherly described an incident in the Vaughan Mills shopping plaza in which it is clear that Mr. Jaggernauth appears to have believed he recognized him as a person following him. Mr. Jaggernauth pulled into a spot in the parking lot. As the officer who was following him through the plaza came to a circle just north of where he was, Mr. Jaggernauth saw the officer’s vehicle and immediately started to reverse. The officer went east from the circle and parked in the lot. Mr. Jaggernauth followed him and parked right beside him. The officer knew that Mr. Jaggernauth was interested in his vehicle and so decided to go into the Hunter Blinds store.

[178] Mr. Jaggernauth followed the officer into the store and went right up to the officer. He looked him up and down. The clerk approached Mr. Jaggernauth, who did not engage, but stayed in the store. The officer pretended to call his wife and then engaged with the clerk about blinds. He said that Mr. Jaggernauth was listening as he did this. After about 8 minutes in the store, Mr. Jaggernauth left. He had moved his vehicle by the time the officer left. Mr. Jaggernauth then met Ms. Hite in the nearby Canyon Creek, and had what officers described as an “intense” conversation.

[179] It appears that the police visit to Mr. Jaggernauth earlier that day made him hyper-vigilant and conscious of the probability he was under police surveillance. He could tell that he was being followed, and showed police that he knew that. While Officer Weatherley did not think Mr. Jaggernauth had “made” him, the evidence from the day suggests otherwise to me.

[180] Mr. Jaggernauth provided his police statement on November 28, 2018. The Crown describes it as a “soft-ball” interview, which I accept as fair, given that the police held back from him many of the details that they were aware of respecting his relationship with Ms. Pimenta, and did not challenge him on anything he said. They certainly did not lead him to believe that they viewed him as a suspect. The Crown’s theory is that the interview relaxed him and that in the days that followed, he engaged in less counter-surveillance.

[181] There is merit in the suggestion that after this, Mr. Jaggernauth appears to have been less “heat conscious”. The surveillance reveals that he resumed using his Dodge Ram, as opposed to Ms. Hite’s Rio. Police also observed him, for the first time in November and December, meeting up with a work colleague and kissing her in a parking lot.

[182] Then, on January 3, 2019, Peel Regional Police left a contact card at Mr. Jaggernauth’s home asking to speak to his ex-wife Natalie. This was a technique designed to stimulate Mr. Jaggernauth. Mr. Jaggernauth called Officer Armstrong back on January 4, asking why police wanted to speak with his ex and indicating that she did not live with him. He declined to provide the officer with her address but said he would pass along the police contact information.

[183] In the days that followed, the Crown submits that he resumed counter-surveillance techniques. For instance, on January 7, 2019, he drove Ms. Hite’s Rio again and met her. He went into Canyon Creek restaurant where she worked and, a minute later, left and moved his car in the lot. He then sat there, taking in his surroundings before returning inside. This is said to be extra vigilant activity in which he was monitoring for police presence.

[184] On January 8, 2019, Mr. Jaggernauth went to Dixie Plaza, where he drove through lanes of parked cars, looking around at them. He got out of his vehicle, walked toward LA Fitness, returned to his vehicle and left. He then drove to a Mississauga Esso station where he tried to use a payphone, which did not work. He left. As he drove, he engaged in counter-surveillance by “re-ramping”. He drove to a Woodbridge Esso station and was seen using a payphone, speaking for a minute or two before leaving.

[185] On January 16, 2019, while Ms. Hite was interviewed by Peel Regional Police, Mr. Jaggernauth watched the police station parking lot from a nearby PetroCanada parking lot. There is no question that he was interested in what happened at her interview.

[186] The Crown submits that while the evidence reveals that Mr. Jaggernauth had been on high alert after the police tried to contact Natalie, he relaxed after they interviewed Ms. Hite. The surveillance evidence suggests that on January 25, February 13 and 14 and March 1, he drove his Dodge Ram and did not engage in counter-surveillance. On January 25, 2019, he again met up with his work colleague, whom he hugged and kissed.

[187] The last critical time period relied on by the Crown is in April 2019. It is an agreed fact that at 10:00 a.m. on April 15, 2019, Peel Regional Police did a widespread media release showing the video and stills of Ms. Pimenta’s shooter. Police requested public assistance in identifying the shooter. While Mr. Jaggernauth was not the shooter, and was at no risk of being identified as the shooter, the Crown submits that he was concerned that it would not be good for him if the shooter were identified. As a result, the Crown submits that he left on April 17, 2019 and went to Niagara Falls, engaging in more counter-surveillance.

[188] I need not review in detail Mr. Jaggernauth’s conduct in Niagara Falls. The surveillance evidence makes clear that his driving in this period was intended to evade police. He stayed in a hotel. His activities included going to a strip club, where he went to a back room with a female for a period between 1:38 and 2:12 a.m. The Crown submits that this trip was intentionally close to the border and was to locations where Mr. Jaggernauth knew that his conversations could not be intercepted.

Conclusions about after-the-fact conduct

[189] I have considered Mr. Jaggernauth’s conduct as a whole for the period after he was certainly aware of what had happened to Ms. Pimenta and was aware that he was a suspect. While, as I have indicated, I think it is reasonable to draw an inference that his conduct before November 22, 2018 is some circumstantial evidence of his guilt, I have concluded that for the period after that, the inferences that the Crown seeks from his conduct cannot reasonably be drawn.

[190] There is no question that Mr. Jaggernauth did, over the period, engage in counter-surveillance activities. Sometimes he appears to have been more vigilant. Sometimes he was less so. While his conduct could be seen as responsive to what he knew of the police investigation, this may well be more coincidental than anything and may have been completely independent of it. Moreover, it is hardly surprising that aspects of the police investigation would have increased his level of stress. For instance, it is not surprising that he was concerned about the Peel Regional Police wanting to speak to his ex-wife, Natalie, or about them speaking to Ms. Hite. This signalled to him that he continued to be a suspect, something that would concern anyone. Moreover, even if it was the investigation that heightened his concern that the police were following him, I do not see how an inference can be drawn that this evidence is incriminating. All that can be taken from this was that Mr. Jaggernauth knew that the police investigation of him was continuing, and he did not like it and wanted to evade their ongoing surveillance. I do not think it is reasonable to infer from his level of vigilance in response to the particular stages of the police investigation that Mr. Jaggernauth conducted himself as he did because he had set up the attack on Ms. Pimenta.

[191] Similarly, while the timing of his trip to Niagara Falls coincides with the media release, there is no evidence to support a conclusion that the release triggered the trip. It may have. It may not have. There is no evidence that he was aware of the release or that it was ever brought to his attention. Even if the media release did prompt Mr. Jaggernauth’s trip, the inference that he went to Niagara because he was worried that the shooter would be identified by the release and he wanted to be close to the American border is highly speculative, in my view. I reach that view because there is evidence that he had gone to Niagara before on vacation and because his trip to the strip club suggests, at least in part, that one purpose in going was to enjoy himself away from home.

[192] In summary, I have carefully reviewed all of the after-the fact conduct relied upon by the Crown. I have concluded that Mr. Jaggernauth’s conduct after November 22, 2018 should not be considered part of the circumstantial case against him. Viewed cumulatively, while I think it is highly suspicious, I decline to draw the inferences from it that the Crown suggests.

Conclusions

[193] In respect of the attempt murder charge, as I have set out, I found that the shooter who went to Ms. Pimenta’s door and shot her with the crossbow did so in a deliberate attempt to kill her specifically. This was a targeted hit.

[194] I find that by that time, Mr. Jaggernauth had a clear and demonstrated motive to kill Ms. Pimenta. He loved and cherished his home. He knew he owed her about $350,000 that she had put into the home. While he had tried for months, sometimes obsessively, to persuade her to resume their relationship, he knew he had failed. Moreover, he knew that she had brought an Application in court, claiming an interest in his home. She had registered a CPL over his property. He knew he could not sell it and leave with the money to avoid paying her. He knew that the court process would be happening. And his lawyer had no doubt explained to him that Ms. Pimenta had a good claim. The risk to Mr. Jaggernauth that he would lose his most precious possession made his situation dire and desperate. There were good reasons why he wanted her dead.

[195] The Crown has demonstrated that Mr. Jaggernauth took active steps toward having Ms. Pimenta killed. He called his friend, a former Satan’s Choice Club member, whom he knew had the ability to set up a hit. He asked Mr. Eakin if he knew anybody who could kill or take Ms. Pimenta out. This was not the drunken ranting that his friend Mr. Eakin tried to paint it as. I find that it was a serious question intended to further Mr. Jaggernauth’s goal of having Ms. Pimenta killed. Mr. Eakin thought it was serious enough that it would trigger police attention. To dissociate himself from it, he immediately hung up on Mr. Jaggernauth, angry that this sort of request was made over a phone call. The evidence of the call with Mr. Eakin powerfully supports a conclusion that Mr. Jaggernauth took steps to advance his plan to kill Ms. Pimenta. While I do not conclude that it was through Mr. Eakin that he arranged the attack, the call is powerful evidence of his plan to make an arrangement for Ms. Pimenta to be killed.

[196] The evidence of what Mr Jaggernauth said to his manager, Mr. Allan, shortly before the attack on Ms. Pimenta, further supports the conclusion that he remained angry at Ms. Pimenta’s approach to the money she had put into his house and had not just let things go, content to let the family litigation play itself out. He was angry and desperate, so much so that he overshared his frustration with his manager, who clearly had no idea how to react. When Mr. Jaggernauth said he could or would kill his ex, Mr. Allan, not surprisingly, paid attention. While it was not work related, it was deeply concerning and troubling. It is evidence that Mr. Jaggernauth truly wanted Ms. Pimenta dead, shortly before she was killed.

[197] Finally, the evidence as to Mr. Jaggernauth’s conduct between the time of the attack and November 22, 2018 further supports a conclusion that he, aware that police would immediately suspect his involvement in an attack on Ms. Pimenta, wanted to both lay low and be unavailable to police and was hyper-vigilant that he could be under surveillance. The significance of this evidence is heightened by the fact that he claimed not to have even been aware, during this period, that Ms. Pimenta had been shot. In my view, it is inconceivable that he would have conducted himself as he did in this period had he been unaware that she had been shot. Cumulatively, his conduct in this period is circumstantial evidence that he, in fact, is the person who arranged for the attack, and then wanted to avoid the police as much as possible and sought to distance himself from the attack and from Ms. Pimenta altogether.

[198] There may be a conviction on the basis of circumstantial evidence only when guilt is the only reasonable inference to draw from the evidence as a whole. I am satisfied beyond a reasonable doubt, on the basis of the circumstantial evidence, that Mr. Jaggernauth committed the offence of attempt murder. I reach that conclusion because there is, in my view, no other reasonable inference than that Mr. Jaggernauth arranged for Ms. Pimenta to be shot, with the intent that the shooter kill her. I cannot saw with whom the arrangement was made, or when. But I am sure that Mr. Jaggernauth orchestrated the attack on Ms. Pimenta. He will be found guilty of attempt murder.

[199] In respect of the counseling to commit murder, the Crown’s case turns entirely on the evidence of Mr. Eakin, and my findings about his evidence, which I have already set out. As I have indicated, I find that Mr. Jaggernauth, who knew of Mr. Eakin’s history as a Satan’s Choice Motorcycle Club member, and knew that Mr. Eakin could access someone to commit a murder, had a conversation with Mr. Eakin in which he both ranted about Ms. Pimenta and their separation and asked Mr. Eakin if he know anybody who could kill or get rid of his wife. This is conduct that I find was seeking or inviting or making a request for Mr. Eakin to assist him in finding someone to kill Ms. Pimenta. I find he did so because he genuinely wanted to cause her death. His solicitation of Mr. Eakin completed his commission of the offence, it being of no moment that Mr. Eakin had no intention of assisting Mr. Jaggernauth in any way. I am satisfied beyond a reasonable doubt that Mr. Jaggernauth tried to enlist Mr. Eakin’s assistance to kill Ms. Pimenta. He is guilty of this offence.

J.W. Woollcombe J. Released: June 14, 2023