



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pierre, 2017 ONCA 140

DATE: 20170217

DOCKET: C54901

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aundre Pierre

Appellant

Erin Dann and Eric Neubauer, for the appellant

Benita Wassenaar, for the respondent

Heard: January 31, 2017

On appeal from the conviction entered on September 2,
    2011 by Justice G. Pardu of the Superior Court of Justice, sitting with a jury.

BY THE
    COURT:

[1]

The appellant was convicted by a jury of second degree murder. He
    appeals his conviction on two grounds:  (i) that the trial judge erred in
    rejecting his request to admit evidence with respect to an alternate suspect;
    and (ii) that the trial judge erred by instructing the jury that participation
    by aiding was a basis for culpability.

[2]

Daniel DaSilva was a drug dealer. He was shot in the front seat of his
    car while parked near Keele and Eglinton in Toronto. DaSilva died of his
    injuries within minutes of the gunshot. Filipe Rasteiro had been in the front
    seat with DaSilva but managed to escape. Rasteiro told police there were two
    male perpetrators. He was able to provide a description of one of the men who
    he said was in the rear passenger seat with a black gun. Rasteiro recognized
    him from the Don Jail and identified him in a photo line-up as the appellant.
    Cell phone records showed telephone communications between the appellant and
    DaSilva in the time period leading up to the shooting.

[3]

The theory of the Crown was that the appellant had arranged a drug deal
    with DaSilva and then entered the back seat of DaSilvas car with an
    unidentified person. After the drugs were handed over, the appellant and the
    other person pulled out guns. Both of them fired shots at DaSilva, intending to
    kill him or cause serious bodily harm knowing it was likely to cause death.

[4]

The gun used to kill DaSilva was found about three months after the
    shooting in the possession of another person in Ajax, Ontario. The appellant
    sought to introduce evidence at trial that the gun had been found in someone
    elses possession. The Crown objected and the appellant brought the alternate
    suspect application.

[5]

Detective Sansom testified at the
voir dire.
He knew of no
    evidence linking the alternate suspect to DaSilva or to the geographical
    location of the crime. He stated that:  the proposed alternate suspect was
    associated with a gang called H Block; the appellant had been associated with a
    gang called Five Point Generals; there were no cell phone records putting the
    alternate suspect near where the killing took place and no cell phone contact
    between the alternate suspect and the deceased.

[6]

Detective Backus was qualified to provide expert evidence about gang
    culture. He testified that it would be extremely rare for a gang member to
    retain a gun that had been used in a crime.

[7]

The appellant submits that the trial judge erred in rejecting the
    application to admit alternate suspect evidence. He submits that there was a
    sufficient connection between the proposed alternate suspect and the commission
    of the offence because of the possession of a murder weapon. Further, he argues
    that the trial judges analysis assumes that the appellant was involved in the
    shooting.

[8]

We disagree.

[9]

The test for admission of alternate suspect evidence was not in
    dispute:  the third person must be sufficiently connected to the crime to give
    the proffered evidence some probative value:
R. v. Grandinetti
, 2005
    SCC 5, [2005] 1 S.C.R. 27, at paras. 46-48. The only evidence linking the
    alternate suspect to the crime was the possession of the gun. It was open to
    the trial judge to conclude on the basis of all of the evidence that the
    possession of the gun three months after the shooting in the context of the
    case had almost no probative value on the issue of the identity of the shooter
    and that admitting the alternative suspect evidence would unnecessarily
    complicate the trial. The context of the case before the trial judge included
    the identification evidence of Rasteiro, the cell phone records and the
    security video. By contrast, absent the gun possession, there was no evidence
    linking the alternate suspect to DaSilva. The trial judge accepted the expert
    evidence regarding the practices of gang members in relation to guns used to
    commit crimes. She was entitled to find that possession of the gun three months
    after the crime was not probative of the alternate suspects connection to the
    crime and that therefore, the proposed alternate suspect evidence failed to
    reach the standard required for admissibility.

[10]

The trial judges reasons do not reflect the assumption that the
    appellant was involved in the killing. On the contrary, her reasons focus on
    the connection between the proposed suspect and the crime.

[11]

The trial judge instructed the jury on party liability including joint
    principals, common purpose and aiding. The appellant submits that the charge on
    aiding should not have been included as there was no evidence that the
    appellant assisted someone in the commission of the offence with the requisite
    knowledge that the shooter intended to commit murder.

[12]

The judges charge to the jury with respect to aiding is set out in more
    than one section of the charge. First, it states:

[I]f [the appellant]:

1. Knew that someone else intended to
    kill Daniel DaSilva; [and]

2. Did something intentionally to help
    the other person kill Daniel DaSilva

[the appellant] is an aider of the
    murder and equally guilty of it.

[13]

Later in the charge when discussing the state of mind required for
    murder, the trial judge described the components of aiding:

For an unlawful killing to be a
    murder, Crown counsel must prove one or more of the following states of mind:



3.   [The appellant] aided the
    commission of the killing as defined in this charge, in that [he] knew that
    someone else intended to kill Daniel DaSilva, and [he] did something with the
    intention of helping that other person kill Daniel DaSilva [or]

4. [The appellant] was a party to a
    joint common purpose as defined in this charge, in that the Crown has proven
    that:

a. [The appellant] and another person
    agreed they would do a drug deal or a robbery and help each other do so,

b. The killing of Daniel DaSilva
    occurred in the course of their drug deal or robbery, and

c. [The appellant] knew that the other
    person would probably kill someone in the course of carrying out their original
    agreement.

[14]

Still later in the charge the trial judge said: To convict someone of
first
degree murder, Crown counsel must prove that that person is an active
    participant in the killing.

[15]

The Decision Tree led the jury on the following path for second degree
    murder:

1.

The appellant
    entered the car;

2.

The appellant
    did some act that contributed to the death;

3.

The appellant
    caused the death unlawfully;

4.

The appellant
    had the state of mind required for murder.

[16]

The jury was told that they had to be satisfied beyond a reasonable
    doubt of these elements for there to be a verdict of second degree murder.

[17]

The jury instructions, together with the Decision Tree, made it clear
    that the appellant had to be a principal or a joint principal with the
    requisite mental state to be convicted of second degree murder. Although the
    references to aiding may have been unnecessary, the jury charge read as a
    whole would not have misled the jury.

[18]

The appeal is therefore dismissed.

Released: February 17, 2017

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.


