



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mendez, 2018 ONCA 354

DATE: 20180411

DOCKET: C60732 & C60731

Hoy A.C.J.O. and Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Mendez and Shamaree Wilson

Appellants

Lance Beechener, Zachary Kerbel and Saman
    Wickramasinghe, for the appellants

Susan Magotiaux, for the respondent

Heard: February 14, 2018

On appeal from the conviction entered on November 10, 2013
    by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with
    a jury.

Pardu J.A.:

[1]

The appellants, Jordan Mendez and Shamaree
    Wilson, were convicted of the first degree murder of Joel Waldron.

[2]

Joel Waldron was shot outside his home on
    February 26, 2011. He came outside just after receiving three calls, in brief
    succession, from a telephone number which could not be linked to either
    appellant or any other person. The last call was at 10:46 p.m. There was
    evidence at trial from which a jury could conclude the following:

1.

The appellants were together at a baby shower nearby.

2.

They moved together quickly on foot to the area
    of the victims home, leaving the baby shower at about 10:47 p.m. (At 10:47:50
    p.m., a video camera captured two figures running from the general vicinity of
    the baby shower towards the general vicinity of the victims home.)

3.

One of the appellants shot the victim three
    times, in the back of the head and in the back, very shortly after the victim
    left his house.

4.

The non-shooter was somewhere in the area of the
    shooting.

5.

They both fled the area where the shooting took
    place by foot. At 10:51:55, a video camera captured two figures running from
    the general area of the victims home. At 10:55 p.m., the appellants arrived
    unexpectedly at the home of a former girlfriend of one of the men. The two had
    not been in contact for several years.

6.

Both changed some of their clothing while there.

7.

Wilson lied to police and said he and Mendez had
    been at the friends house since well before the shooting.

8.

The murder weapon was found in a recycling bin
    outside the friends home.

[3]

The Crown could not prove which of the
    appellants was the shooter, but argued that Waldron was lured out of his home
    by the phone calls and was ambushed, and both were guilty of first degree
    murder: one as the shooter and the other as an aider or abettor. Although the
    evidence reasonably established that the non-shooter was nearby at the time of
    the shooting, there was no direct evidence of a particular role, if any, he
    played in the killing. The Crowns position was that he was present in order to
    assist if required, and that by his presence he lent force to and encouraged the
    attack. The shooter, the Crown argued, intended to kill the victim, the
    non-shooter was in on the plan and shared the intent to kill and both the
    shooter and the non-shooter were guilty of first degree murder. It was common
    ground on appeal that the shooter had committed a murder.

[4]

Because the Crown could not prove which role, if
    any, each of the appellants played, both appellants had to be acquitted unless
    the Crown could prove that the non-shooter aided or abetted the killing.

[5]

The appellants advance multiple grounds of
    appeal. I agree that the charge to the jury did not relate the evidence to the
    issues of planning and deliberation in a balanced way. Because the trial judge
    also failed to relate the evidence to the necessary elements of aiding and
    abetting for either first or second degree murder, a verdict of second degree
    murder cannot be substituted for the verdict of first degree murder and a new
    trial is required. I do not agree that the verdict should be set aside as
    unreasonable and an acquittal substituted.

Instructions on planned and deliberate murder

[6]

After correctly describing the elements of
    planning and deliberation, the trial judge instructed the jury as follows:

It is up to you to say whether the murder of
    Joel Waldron was both planned and deliberate. To decide this issue, you should
    consider all the evidence. Among the things you should consider is the
    following:

1)

The evidence that Joel Waldron received two phone calls shortly
    before he left his house;

2)

The timing of the figures running across Neilson Avenue that I have
    already mentioned to you;

3)

The evidence that would support the inference that Mr. Wilson
acted
    jointly
with Mr. Mendez to kill Mr. Waldron. This would include the
    evidence of their movements from the baby shower to Mr. Waldrons house and the
    video of the two figures running as well as the evidence of their movements
    together after the shooting;

4)

The distance between the baby shower and the Waldron house;

5)

The evidence of Chrysta Dixon that Mr. Wilson and Mr. Mendez were
    together at the baby shower, although she did not know if they arrived or left
    together and did not know what time they left;

6)

The evidence that Mr. Wilson and Mr. Mendez were together after the
    shooting. [Emphasis added.]

[7]

This relation of evidence to the issues was
    factually unbalanced because  it largely listed items that favoured the Crown
    theory and  because the trial judge did not deal with evidence tending to raise
    doubts about an intention to aid or abet a planned and deliberate murder, such
    as the following:

1.

The appellants both knew the deceased, and there
    was no evidence of any ill feeling between them. There was evidence they had
    been friends.

2.

There was no evidence that the telephone calls
    the deceased received from an unidentified number were associated with either
    of the two appellants.

3.

There was no evidence of anything said by either
    appellant before they left the baby shower that would indicate the shooter was
    armed or intended to kill.

4.

There was no evidence of any act on the part of
    the non-shooter, other than his presence in the general area, to show that he
    did something to assist the shooter.

5.

The short lapse of time between the appellants departure
    from the baby shower to the time of the shooting, less than 4 minutes, could
    undermine the Crown suggestion that the non-shooter knew of the shooters
    intentions and intended to aid or abet a planned and deliberate murder. While
    some mutual object could be inferred from their departure from the baby shower
    together, the non-shooter may not have known of the shooters plan to kill.

6.

The disposal of the gun by one of the appellants
    in a place where it was likely to be found, and the unexpected arrival on the
    doorstep of a friend whom Wilson had not been in contact with for some time also
    suggest disorganization and a lack of planning and deliberation.

[8]

This jury was not equipped with the tools to
    decide this case because of the trial judges failure to relate the evidence to
    the necessary elements of aiding and abetting. The trial judge told the jury it
    could convict both the appellants on the ground that they were acting jointly. As
    I have said, she did not relate the evidence to the necessary elements of
    aiding and abetting, although, as the Crown agrees, conviction of both
    appellants of second degree murder or planned and deliberate first degree
    murder rested on a conclusion that the non-shooter did some act that helped or encouraged
    the shooter to kill, and did so knowingly with the intention of helping the
    shooter commit either murder or planned and deliberate murder: see
R.
    v. Almarales
,
2008 ONCA 692
,
237
    C.C.C. (3d) 148
.

[9]

The trial judge told the jury that it could consider
    the appellants conduct after the shooting to determine whether they were
acting jointly or in concert
before or
    during the shooting. She defined active participation in the killing as either
    shooting or doing something for the purpose of aiding or abetting the killing. Rather
    than focusing the jurys attention on the issue of whether the Crown had proven
    the elements of aiding or abetting in relation to the non-shooter, she invited
    the jury to consider whether the killing itself was planned and deliberate and whether
    either individual accused participated in the killing by
acting jointly
with the shooter. While
    the instructions elsewhere in the charge correctly set out the elements of
    aiding and abetting, the instructions had the functional effect of telling the
    jury that if the shooting was planned and deliberate, and if the parties acted
    jointly, both were guilty of planned and deliberate murder. This obscured the
    need to find proof of the elements of aiding or abetting, the act of assistance
    or encouragement, and the intention to assist or encourage a second degree
    murder or a planned and deliberate first degree murder.

[10]

It is common ground that there was one shooter. In
R. v. Pickton
,
[2010] 2 S.C.R. 198, at
    para. 71,
the Supreme Court of Canada indicated that where one
    person holds the gun and pulls the trigger, the non-shooters potential
    liability had to flow, not through co-principal liability, but through aiding
    and abetting.

[11]

At para. 67 of the same decision
,
the Supreme Court observed:

Where the cause
    of death could clearly only have been inflicted on the victim by one person,
    however, and there is no evidence of any other force being applied to the
    victim prior to death, then absent any other evidence, likely the only logical
    inference is that there exists only a single principal offender. The principles
    of criminal causation demand such a conclusion, as there cannot be said to be
    any other significant contributing cause to the death. In that situation, the
    potential of co-principal liability is eliminated.

[12]

As noted in
Pickton
, at para. 69, phrases such as concerted action, acted in
    concert, common design, participation in a common scheme and joint
    participation are phrases which properly capture the entire gamut of principal
    liability, co-principal liability and liability as an aider or abettor.

[13]

The majority agreed that the trial judge in
Pickton
should have charged the jury on aiding and abetting, but dismissed
    the appeal because the evidence of the accuseds guilt was overwhelmingly
    strong:
Pickton
, at para. 10.

[14]

Here, the trial judges instruction inviting the
    jury to consider whether the non-shooter was an active participant in the
    killing without relating the evidence to the elements of aiding and abetting in
    a balanced way had the potential to mislead the jury. It is by no means obvious
    that the non-shooters presence in the general area where the shooting occurred
    amounted to assistance or encouragement or that the non-shooter intended to
    provide assistance or encouragement to the shooter by his presence.

[15]

In some circumstances, synchronous movements of
    two individuals may lead to inferences about their intentions and the nature of
    their participation in the commission of an offence: see
R. v.
    Carrington
,
2017 ONCA 2,
346 C.C.C. (3d) 223
. But, where
    conviction depends on aiding and abetting, the jurys attention must be focused
    on the necessary elements and the evidence must be related to those elements in
    a balanced way.

[16]

Here, the weaknesses in the prosecution case on
    aiding and abetting were highlighted by the Crowns submissions to the jury,

Theres also no evidence at the scene of the
    other person doing anything to aid or abet. But whats clear to you, ladies and
    gentlemen, is that person was there for that purpose if necessary. Thats why theyre
    going there. Theyre not an innocent bystander. This is a joint plan, a common
    enterprise.

[17]

The jury was not equipped to assess those
    weaknesses. The trial judge did not focus the jurys attention on the absence
    of evidence of acts to aid or abet the shooter or on the evidence that pointed
    away from the existence of a joint plan or common enterprise.

[18]

While trial counsel for the appellants did not
    object to the charge, this is not a conclusive factor. In the context of this circumstantial
    case, the trial judges failure to relate the evidence to planning and
    deliberation in a balanced way, paired with her failure to relate the evidence
    to the necessary elements of aiding and abetting, was significant. The
    imbalance arose at a time when the trial judge was inviting the jurors to apply
    a narrowed focus to the issue, and relating the evidence to that issue. While
    the omitted matters I have referred were mentioned as part of the narrative of
    the evidence at other points of the charge, when the trial judge expressly
    related the evidence to the issues, it was

factually unbalanced and was potentially
    misleading. It was crucial that this part of the charge be balanced because of
    the impact it would have had on the jurys focused consideration of the issues.

Unreasonable verdict

[19]

The appellants submit that convictions for first
    degree murder were unreasonable verdicts in this case.

[20]

A verdict is unreasonable if a properly
    instructed jury, acting judicially could not have come to that verdict:
R.
    v. Robinson
, 2017 ONCA 645,
352 C.C.C. (3d) 503,
    at para. 30. See also:
R. v. Biniaris
,
[2000]
    1 S.C.R. 381, at paras. 36-42.

[21]

As described in
R. v. H. (W.)
,
[2013] 2 S.C.R.180
, at paras. 27-28, an
    appellate court must give due weight to the advantage the jury had as trier of
    fact present throughout the trial, but on the other hand, must weigh the
    evidence through the lens of judicial experience:

The reviewing court must not act as a 13th
    juror or simply give effect to vague unease or lurking doubt based on its own
    review of the written record or find that a verdict is unreasonable simply
    because the reviewing court has a reasonable doubt based on its review of the
    record.

On the other
    hand, however, the review cannot be limited to assessing the sufficiency of the
    evidence. A positive answer to the question of whether there is some evidence
    which, if believed, supports the conviction does not exhaust the role of the
    reviewing court. Rather, the court is required to review, analyse and, within
    the limits of appellate disadvantage, weigh the evidence and consider through
    the lens of judicial experience, whether judicial fact-finding
precludes
the conclusion reached by the jury. Thus, in deciding whether the verdict is
    one which a properly instructed jury acting judicially could reasonably have
    rendered, the reviewing court must ask not only whether there is evidence in
    the record to support the verdict, but also whether the jurys conclusion
    conflicts with the bulk of judicial experience. [Citations omitted; emphasis in
    original.]

[22]

There were some risks here of an unreasonable
    verdict. The trial judge correctly told the jury that the conduct of the
    appellants after the shooting could not be used to differentiate between murder
    and manslaughter. The appellants flight and change of clothing, as well as Wilsons
    lie, were not inconsistent with an absence of an intention to aid or abet a
    murder, and could be consistent with some other explanation. This same conduct,
    in the circumstances of this case, while an essential part of the narrative,
    also had little probative value as to whether the non-shooter intended to aid
    or abet a planned and deliberate killing. In some circumstances, conduct after
    an event may be highly probative of planning and deliberation, as where for
    example, an accused comes to the scene of a killing armed with tools for
    disposal of a body, and uses those tools after the killing to in fact do so. Here,
    the flight and change of clothing and the lie after the event were not linked to
    behavior before the murder which would point to a direct logical inference of
    planning and deliberation. Judicial experience teaches that evidence of after
    the fact conduct is a special brand of circumstantial evidence that carries a
    heightened risk of misapplication and prejudice: D. M. Paciocco, Simply
    Complex Applying the Law of Post-Offence Conduct Evidence (2016) 63 C.L.Q.
    276. There is a risk that jurors might jump too quickly from after the fact
    conduct to guilt, particularly here, where the shooter is acknowledged to have
    committed a murder and the jury is invited to infer that the non-shooter by
    acting jointly with the shooter,  aided or abetted a planned and deliberate
    murder.

[23]

The appellants acknowledged to the trial judge
    however, in the course of the motion for a directed verdict of not guilty on
    first degree murder, that there was sufficient evidence to put second degree
    murder to the jury. This amounted to an acknowledgment that there was evidence
    from which a jury could conclude that the non-shooter did something with the
    intention of helping or encouraging the shooter to kill the victim. This
    concession is not conclusive, but is an important factor to be considered.

[24]

Here,  the question of what the non-shooter did
    and his purpose were central to both the question of whether the non-shooter
    aided a second degree murder or aided a planned and deliberate first degree
    murder. The synchronicity of movement towards the victims home, the immediacy
    of the killing after he emerged from his home, the unlikelihood of coincidence
    in the immediacy of the killing just after the phone calls and the continued
    synchronicity of movement following the killing taken together, provide a basis
    upon which this jury could have convicted both appellants, concluding that one
    was the shooter and the other aided or abetted the killing. Although this was a
    weak case on aiding and abetting, I cannot conclude that this was a verdict
    which no properly instructed jury could have reached, and I would not
    substitute a verdict of acquittal.

Remedy

[25]

The non-shooters actions and intentions were
    intertwined both with whether the non-shooter aided and abetted a first or a
    second degree murder. In light of the failure of the trial judge to relate the
    evidence to the necessary elements for aiding and abetting, as well as the
    trial judges failure to relate the evidence to planning and deliberation in a
    balanced way, the appropriate remedy for the deficiencies in the charge is to
    order a new trial.

[26]

The appellants raise other grounds of appeal, including
    arguments that the trial judge erred in instructing the jury that it could
    consider a statement made by a third party in the presence of a police officer and
    Wilson, while Wilson remained silent, as an adoptive admission. The appellants
    argue Wilson was under no obligation to speak in the presence of a police
    officer. They argue further that the trial judge erred in instructing the jury
    that it could use Wilsons lie about his afternoon whereabouts to support a
    conclusion that he and Mendez acted jointly. I need not explore these arguments
    further, as the conclusions expressed above are sufficient to deal with this
    appeal. In considering the unreasonable verdict arguments, I have not
    considered this impugned evidence.

[27]

I would quash the convictions for the first
    degree murder for each appellant, allow the appeal and order a new trial for
    both appellants.

G. Pardu J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree Janet Simmons
    J.A.

Released: April 11, 2018


