R v Herron, 2019 SKCA 138

Court of Appeal for Saskatchewan Dockets: CACR2928 and CACR2940 Citation: R v Herron , 2019 SKCA 138 Date: 2019-12-18 Docket: CACR2928 Between: Jordan Christopher Herron Appellant And Her Majesty the Queen Respondent Docket: CACR2940 Between: Orren Brooks Johnson Appellant And Her Majesty the Queen Respondent Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On Appeal From: CR 41/15, Prince Albert Appeal Heard: November 7, 2018 Counsel: Brian Pfefferle for the Appellant (Herron) Harold Brubaker for the Appellant (Johnson) Dean Sinclair, QC, for the Respondent Jackson J.A. I. Introduction [ 1 ] Jordan Herron and Orren Johnson were tried jointly by a jury for the first degree murder of Clayton Bear. The jury convicted Mr. Herron of second degree murder and Mr. Johnson of first degree murder. Both Mr. Herron and Mr. Johnson appeal their convictions. [ 2 ] For the most part, neither appellant has raised any issue with respect to the charge to the jury.

Rather, Mr. Herron principally contests the reasonableness of the verdict against him, and raises several issues in that regard. He also challenges the trial judge’s decision not to grant a mistrial following the address to the jury made by Mr. Johnson’s counsel. Mr. Herron submits that counsel’s address, which made reference to David Milgaard’s wrongful conviction, was highly prejudicial to him. He seeks an acquittal or, failing that, a new trial. [ 3 ] Mr. Johnson submits that his conviction for first degree murder is unreasonable as it is irreconcilable with Mr. Herron’s verdict of second degree murder. Mr.

Johnson concedes there was evidence heard at trial upon which he could be convicted of an offence relating to the death of Mr. Bear, and, on that basis, if this Court were to allow the appeal, he concedes the Court’s remedy would be to remit the matter for a new trial. [ 4 ] For the reasons that follow, I have concluded that both appeals must be dismissed. II. Background [ 5 ] At approximately 5:45 a.m. on April 14, 2014, Mr. Bear was fatally shot. Mr. Bear was 17 years old at the time. He died in hospital at 8:45 a.m. that same morning of injuries caused by a single gunshot wound. That much was not in dispute.

Almost every other detail of significance was contested at trial. The defence called no evidence. [ 6 ] Twenty-two witnesses testified over approximately three weeks. The witnesses testified about critical events that had occurred at four venues in Prince Albert: (

a) a home located on 27th Street East in Prince Albert [the 27th St. House]; (

b) a Prince Albert residence on Central Avenue, where Mr. Johnson and another man were living [the Johnson Residence]; (

c) a 7-Eleven Canada Inc. store [the 7-Eleven]; and

(

d) a street location on the east side of Central Avenue between 19th and 20th Streets [the Central Avenue Location]. [ 7 ] By the end of the trial, it was common ground that there were at least two incidents of particular significance that had taken place at the 27th St. House. The first incident occurred at around 4:05 a.m. on April 14, 2014 [the First Incident]. The second incident occurred around 5:45 a.m. that same day [the Second Incident]. It was during the Second Incident that Mr. Bear suffered the fatal gunshot wound.

The police were called almost immediately, with the first officer arriving at the scene by 5:58 a.m. [ 8 ] In order to create a framework for the review of the witnesses’ testimony, I will state the Crown’s and defence theories as presented at trial. [ 9 ] The Crown’s theory was that Mr. Herron and Mr. Johnson committed the planned and deliberate murder of Mr. Bear as an act of retaliation or revenge or a display of bravado in response to two acts of disrespect that had occurred earlier that night.

The first act of disrespect occurred when someone came to the Johnson Residence and took the women from their party over to the 27th St. House. The second act of disrespect occurred when Mr. Herron, Mr. Johnson and a third person tried to join the party at the 27th St. House and were repelled or rejected from it. This is the First Incident mentioned above. As a result of these acts of disrespect, the Crown submitted that Mr. Herron and Mr. Johnson returned to the 27th St. House to exact revenge.

That revenge, asserted the Crown, was planned and deliberate and involved the two of them (and a third person) entering the house and either Mr. Herron and Mr. Johnson shooting Mr. Bear or Mr. Johnson doing that by himself while Mr. Herron remained in another room. This is the Second Incident mentioned above. [ 10 ] Mr. Herron’s and Mr. Johnson’s defences were essentially the same. The trial judge described Mr. Herron’s theory of the case: Jordan Herron’s theory of the case is that he was not present at [the 27th St.

House] when the fatal shooting of Clayton Bear took place, and did not participate in the murder of Clayton Bear. Counsel for Jordan Herron argues that the evidence does not prove beyond a reasonable doubt that Jordan Herron was present at the house when Clayton Bear was shot because the witnesses who placed Jordan Herron there at that time were incredible and unreliable for a number of reasons, but primarily due to: (

i) their level of intoxication at the time of the relevant offence; (ii) the evolving and contradictory nature of their evidence and statements; and (iii) the possibility that they conflated their recollection of the earlier incident where Jordan Herron, Orren Johnson and Scott Dzik were ejected from the party with the later incident where Clayton Bear was shot.

Counsel for Jordan Herron argues that even if you conclude that Jordan Herron was present at the time Clayton Bear was shot, the Crown has proved nothing more than mere presence on Jordan Herron’s part, which would not make Jordan Herron guilty of any offence. And counsel for Jordan Herron argues that in the alternative, even if you conclude that Jordan Herron participated in the unlawful act that caused Clayton Bear’s death, the Crown has not proved that Jordan Herron had the intent required for murder.

And finally, counsel for Jordan Herron argued that there is no evidence that the killing of Clayton Bear was a planned and deliberate murder. [ 11 ] The trial judge presented Mr. Johnson’s theory of the case as follows: Orren Johnson’s theory of the case is that he was not present at [the 27th St. House] when the fatal shooting of Clayton Bear took place, and did not participate in the murder of Clayton Bear. Counsel for Orren Johnson pointed out that there was no physical evidence that connects Orren Johnson to Clayton Bear’s shooting.

She also pointed out that there were only two witnesses, Miranda Soderberg and Danielle Josie, who identified Orren Johnson as having been present and participating in the events surrounding the shooting of Clayton Bear. Counsel argue that the evidence of those witnesses is neither credible nor reliable for a number of reasons, including: (

i) their level of intoxication at the time of the relevant events; (ii) the stressful and frightening circumstances under which the events just before the shooting unfolded; (iii) the evolving and contradictory nature of their various statements to the police; (iv) the contradictions between their evidence identifying Orren Johnson as one of the persons involved in the shooting and the description of the suspects provided by other independent witnesses; (

v) Miranda Soderberg’s loyalty to Jordan Herron; and (vi) Miranda Soderberg’s demonstrated willingness to provide false details and statements even while under oath. Counsel for Orren Johnson argued that the Crown did not establish a motive for Orren Johnson to return to [the 27th St. House] to inflict violence on anyone. There is simply no evidence, she argues, of Orren Johnson being part of any plan or agreement to kill Clayton Bear or any other person and no evidence of planning or deliberation. [ 12 ] Five key witnesses to the events of the night of April 13 and the early morning of April 14, 2014, testified: (

a) Kelsey Bear – she was then 18 years old and a friend of other witnesses (but no relation to the victim). She testified about events that took place at the Johnson Residence, at the 27th St. House during the First Incident, and at the 7-Eleven. (

b) Miranda Soderberg – she was then 19 years old and Mr. Herron’s girlfriend. She testified about events at the Johnson Residence and the 27th St. House, but believed only one incident had occurred at the latter location. In that regard, she conflated aspects of the First and the Second Incidents. (

c) Danielle Josie – she was then 19 years old and the girlfriend of one of the usual residents of the 27th St. House (Cameron “Cam” Morin), who was not present that evening. She testified about events at the Johnson Residence and the 27th St. House, but, like Ms. Soderberg, she believed only one incident had occurred at the 27th St. House (i.e., the Second Incident). (

d) Cory Ahenakew – he was then 22 years old and Mr. Bear’s best friend. He testified about both the First and Second Incidents. (

e) Brandon Smith – he was then 30 years old (the 27th St. House was his family’s home). Mr. Morin, Ms. Josie’s boyfriend, is his brother. Mr. Laliberte, who is mentioned later, is his cousin. Mr. Smith testified about the Second Incident only.

Except for Mr. Smith, all of the above individuals testified that they were highly intoxicated during the events in question. [ 13 ] In addition to the above witnesses, several neighbours and one passerby testified about what they had heard and observed. One police officer who gave evidence important to Mr. Herron was Constable Brock Acorn. Constable Acorn testified about seeing Mr.

Herron with two unidentified men and three unidentified women at the Central Avenue Location at 5:05 a.m. on August 14, 2014 – more on this later. [ 14 ] There were three potential witnesses to the First and Second Incidents whose names were frequently mentioned in the evidence, and in these reasons, but they did not testify: (

a) Derrick Laliberte – otherwise known as “Rick James” or “Derrick for Reals”, a cousin to Mr. Morin and Mr. Smith (Mr. Laliberte was subpoenaed to testify but did not appear); (

b) Chanese Umpherville – a friend of Ms. Bear and of other witnesses (Ms. Umpherville was subpoenaed to testify but did not appear); and (

c) Scott Dzik – a friend of Mr. Johnson (Mr. Dzik was not subpoenaed to testify – the Crown advised the trial judge that he was not called because his evidence was considered unreliable). [ 15 ] There is yet another individual who is referred to in the evidence and these reasons as “Eric”. Some witnesses suggested that Eric was present in the Johnson Residence during the evening of April 13, 2014. Ms. Soderberg identified a man called Eric as having been the third man with Mr. Herron and Mr. Johnson during the night of the incident. His whereabouts was not explained in the transcript.

For clarity, the witnesses sometimes referred to Mr. Herron as “Jordie” and Mr. Johnson as “O”. [ 16 ] With the above by way of a framework for what is to come, I will review the evidence from the trial. A. Ms. Bear [ 17 ] An understanding of the events begins with Ms. Bear. As I have indicated, she was present at the 27th St. House during the First Incident, but was not there during the Second Incident. [ 18 ] Ms. Bear had been drinking heavily beginning in the early afternoon of April 13, 2014, with her friend, Ms. Umpherville. Ms.

Bear said she had probably consumed “at least a 26”, referring to a 26 ounce bottle of liquor, at her home. At some point, she went to a party at Mr. Dzik’s house, picking up Ms. Josie on the way. More alcohol was consumed. Sometime in the later hours of April 13, 2014, a group from the Dzik party proceeded together in a Jeep Cherokee to the Johnson Residence. The drinking continued there. Present at the Johnson Residence, according to Ms. Bear, were Mr. Herron, Mr. Johnson and Mr. Dzik – and three other women. The women were Ms. Soderberg, Ms. Umpherville and Ms. Josie. Ms.

Bear said she and everyone else were drinking. She identified Mr. Johnson and Mr. Herron in Court as two of the people with whom she had been drinking that night. [ 19 ] While the men and women were partying at the Johnson Residence, a group of men were also partying at the 27th St. House. That group included Mr. Bear, Mr. Ahenakew, Mr. Laliberte and Mr. Smith. [ 20 ] Sometime during the evening, Ms. Bear said Ms. Josie got a message from Mr. Laliberte to come over to the 27th St. House. Ms. Bear said she told the men at the Johnson Residence they were leaving. She said everyone was invited.

The four women responded positively to this invitation and all the women ended up at the 27th St. House. Ms. Bear said they left the Johnson Residence in a cab with Mr. Laliberte. Ms. Bear knew him as “Rick James for Reals”. Ms. Bear said that the three men at the Johnson residence were going to come to the 27th St. House in their own vehicle. [ 21 ] We now move to the First Incident and Ms. Bear’s recollection of it. She knew the 27th St. House as Mr. Morin’s home. She said three males were present: Mr.

Laliberte (who she thought had picked them up in the cab) and two other males she did not know. (These would be Mr. Bear and Mr. Ahenakew.) She described one of the two of them as being dressed in red. She also knew Mr. Smith, but did not see him there. [ 22 ] Ms. Bear testified that at around 4:00 a.m., Mr. Johnson, Mr. Herron and Mr. Dzik showed up at the 27th St. House, bringing alcohol and with at least one of them saying, “Let’s party”. She said that before the three men could fully enter the home, the man dressed in red and Mr. Laliberte jumped up. She thought Mr. Laliberte had a knife.

He was mad at the men for showing up. She heard Mr. Dzik say, “I thought we were allowed to come here”, and then he, Mr. Johnson and Mr. Herron ran outside. She heard a gunshot coming from outside and the sound of glass in the front picture window breaking. At that point, she said they all “ducked”. She then got up and ran outside and asked for a ride home. She got into a dark coloured Jeep driven by Mr. Dzik. Mr. Herron was in the front passenger seat and Mr. Johnson was in the back seat with her. She also testified that, when they were in the Jeep, Mr. Johnson was upset about being denied entry to the 27th St.

House. She said Mr. Johnson was “freaking out the most”. [ 23 ] Ms. Bear told the police she “thought ‘O’ was the one doing the shooting” and that “‘O’ had the gun”, but, in cross- examination, she admitted she did not see a gun at any point, including in the Jeep. Ms. Bear, however, maintained her testimony throughout direct examination and cross-examination that she left the 27th St. House because of gunshot fire coming from outside the house, and, in particular, a gunshot that had penetrated the picture window of the living room where she and the others had been sitting. [ 24 ] Ms.

Bear further testified that, following what I have called the First Incident, the four of them (Mr. Herron, Mr. Johnson, Mr. Dzik and she) went to the 7-Eleven to buy some food. A surveillance video from the 7-Eleven was admitted into evidence by consent. In his charge to the jury, the trial judge indicated the surveillance recording shows “[a] woman, who the Crown argues is Kelsey Bear” getting out of a Jeep Cherokee or dark-coloured SUV and “[a] male person, who the Crown argues is Orren Johnson” doing the same.

The male in the video is wearing clothing with a distinctive design that had been identified in the evidence as having been worn that night by Mr. Johnson. The time on the video shows 4:59 a.m., April 14, 2014.

[ 25 ] Ms. Bear’s next recounted memory is that they parked the Jeep some distance from the Johnson Residence. They then walked to that residence. She testified that while eating the food purchased from the 7-Eleven in the living room, she heard conversation coming from Mr. Johnson’s kitchen. The conversation to her was unremarkable. She then fell asleep and woke up at around 11:00 a.m. that same day. At that time, she found no one present at the Johnson Residence. [ 26 ] Of the people in the 27th St. House who remained after Ms. Bear left, only Mr. Ahenakew, Ms. Soderberg, Ms. Josie and Mr. Smith testified. B.

Mr. Ahenakew [ 27 ] Mr. Ahenakew testified that he, along with Mr. Laliberte and Mr. Bear, went to the Johnson Residence to pick up the women. Importantly from the Crown’s perspective, he testified that after the women got into the car to leave with them, an unknown, chubby white male with light hair approached and tried to enter the cab, but Mr. Ahenakew told him to “Beat it”. [ 28 ] As to the First Incident, Mr. Ahenakew testified that as soon as he heard the gunshots, he hit the floor. Some men entered the house, but he could not identify them.

He also testified about the Second Incident – but he thought it was about 10 minutes after the First Incident, rather than over an hour later. He knew that some people had come into the house a second time, and that a single gunshot had been fired, but he could not provide any other details about that event. He did, however, acknowledge that he had given a statement to the police saying, “I heard them go around the house, and they were looking -- they were looking for someone. You could just hear them. They were looking for someone, and they fucking shot -- fired off a couple of shots.

I was right here, laying down, so they couldn’t see me”. After the men left, Mr. Bear was discovered fatally shot in one of the bedrooms. This is the Second Incident. C. Ms. Soderberg [ 29 ] Ms. Soderberg testified over a two-day period and she was extensively cross-examined. As of the offence date, she had been dating Mr. Herron for about a year, but the relationship had ended within a couple of weeks following the shooting. She said Mr. Dzik was a friend of Mr. Herron and she had known him for over a year. Ms. Soderberg testified that in the afternoon of April 13, 2014, Mr. Dzik and Mr.

Herron picked her up at her place and from there they went to Mr. Dzik’s home. Later on, Ms. Umpherville, Ms. Josie and Ms. Bear showed up. Ms. Soderberg testified that she did not really know any of these women. Around 9:00 p.m., the whole group went to the Johnson Residence. [ 30 ] Mr. Johnson and a man called Eric were the only two persons present when the group arrived at the Johnson Residence. She said that Mr. Johnson and Eric were roommates. She had met Mr. Johnson and Eric “once prior” and she said Mr. Herron knew Mr. Johnson “a little bit more than me, but I’m not positive on that”. [ 31 ] Ms.

Soderberg testified that later on in the evening she and the three women went to Mr. Morin’s place (the 27th St. House). According to her, they walked – but she had very little memory of how they came to arrive at the 27th St. House. There were “three gentlemen there” when they arrived. She knew Mr. Laliberte, but she did not know the other two. She could not recall their names. They all sat in the living room and started drinking and smoking marijuana. Like Ms. Bear, Ms. Soderberg had been drinking heavily during the hours leading up to the events in question.

She said she thought she had consumed as many as 22 drinks over a 14-hour period. When asked, she agreed her memory of the events was in “bits and pieces”. [ 32 ] For Ms. Soderberg, however, only one incident occurred, and it is the one that ended in the shooting of Mr. Bear. Describing the incident, she said she was sitting on a couch directly across from the front door of the 27th St. House when three men came “ramming” through the front door, with Eric first, then Mr. Johnson, followed by Mr. Herron. Mr. Johnson had a gun. Ms.

Soderberg initially said it was a brown shotgun about 8 to 12 inches long, but she corrected herself to say it was a small handgun. She saw a small knife, but was not sure whether it was in Eric’s or Mr. Herron’s hand. She recalled Eric and Mr. Johnson yelling but could not recall what they were saying. She testified that Eric and Mr. Herron stood in the living room with her, but Mr. Johnson ran toward the bedroom where Mr. Bear was later found shot. She did not see him enter the bedroom. She heard two or three shots. When Mr. Johnson came back, she said he continued waving the gun around the living room.

She said Mr. Johnson told her to keep her mouth shut. [ 33 ] She said Mr. Herron wanted “to take me home pretty much to make sure I was okay … as I think any boyfriend would do”, but she did not leave. After the three men left, she said, “Orren continued to shoot at the house through the front window” and she “could see him, as he was walking out, aiming the gun at the house”.

She thought they had been in the house for “about 15 or 20 minutes”, but in cross-examination she lowered this time. [ 34 ] Also in cross-examination, it emerged that in her statement, which she gave later on the same day of the Second Incident, she denied knowing the identity of the men who had entered the 27th St. House at 5:45 a.m. In a subsequent statement, she placed both Mr. Herron and Mr. Johnson in the bedroom where Mr. Bear was later found. She had also testified at the preliminary inquiry. Her evidence varied in some detail on that occasion as well.

However, throughout her examination and cross-examination at trial, she maintained that (

a) Mr. Johnson had the gun, (

b) Mr. Johnson went to the bedroom, and (

c) Mr. Herron had remained in the living room. She identified both Mr. Johnson and Mr. Herron positively in Court. D. Ms. Josie [ 35 ] Ms. Josie also could only recall one incident, which was the Second Incident. She began her narrative of events by saying that, at around 10:45 p.m. on April 13, she was picked up at her house by Ms. Bear and Mr. Dzik. From there, they went to Mr. Dzik’s place, where Ms. Umpherville, Ms. Soderberg and Mr. Herron were already engaged in heavy drinking. Ms. Josie had not known Mr. Dzik, Ms. Soderberg or Mr. Herron before that night. Ms.

Umpherville was her cousin. [ 36 ] After drinking with this group for a few hours, they all went to the Johnson Residence, where she met Mr. Johnson for the

first time. At some point, she “was talking to Clayton over Facebook, and he was the one that sent the cab to come pick us up” (this included picking up Ms. Josie, Ms. Soderberg, Ms. Bear and Ms. Umpherville). Ms. Josie testified that Mr. Herron seemed upset that Ms. Soderberg was leaving, but no one else, including Mr. Johnson, seemed to care. [ 37 ] Ms. Josie testified that when they got to the 27th St. House Mr. Bear, Mr. Ahenakew and Mr. Laliberte were present, and Mr. Smith was sleeping. Ms. Josie said that, sometime after arriving at the 27th St. House, she told Mr.

Bear he could sleep in her boyfriend’s bedroom, next to the living room, because her boyfriend (Mr. Morin) was not there that night. She said she was intoxicated, and on a scale of one to ten, was at a seven or eight at the time of the Second Incident. [ 38 ] Ms. Josie testified further that shortly after Mr. Bear went to the bedroom Mr. Herron and Mr. Johnson showed up at 27th St. House. When they entered, she was sitting on the couch. She testified that they were “running around the main floor”. She said she heard “lots” of gunshots, but she did not see a gun.

As to the whereabouts of everyone else, she said the “girls were in the living room” and then “the boys, they took off”. [ 39 ] Later that same day, Ms. Josie was taken through two photo lineups and was asked to identify two people. As part of that process, she identified Mr. Johnson and Mr. Herron as the two men who entered the 27th St. House during the incident she recalled. She also identified them in Court. [ 40 ] In cross-examination, Ms. Josie admitted she did not remember everything that had occurred in the early morning hours of April 14, 2014.

She also accepted that after she heard the first shot she got down on the floor, did not see or could not recall what the intruders were wearing or see their faces, how many came through the door, or what was going on. [ 41 ] In re-examination of Ms. Josie by the Crown, she answered, “Yeah”, to the Crown’s question that the people she had identified in the photo booklet on the day in question were the people “you were partying with” and they were “the individuals that … were involved in the incident”. E. Mr. Smith [ 42 ] Mr. Smith, who lived at the 27th St. House, testified that he made dinner for Mr.

Laliberte, Mr. Bear and Mr. Ahenakew. He had not met the last two before that night. He went to bed about 11 p.m. as he was hung over. He had no evidence to give about the First Incident as he did not hear anything in relation to it. He said he woke up about 5:00 a.m. to discover Mr. Laliberte and Mr. Ahenakew were in his house, along with three women who had not been there before (i.e., Ms. Soderberg, Ms. Umpherville and Ms. Josie, with one of them passed out in an armchair). Of these women, he knew Ms. Josie only – as his brother’s girlfriend. [ 43 ] Mr.

Smith was sitting on the couch when he noticed a bullet hole in the front window – he was told there had been a drive-by shooting. He said he “Freaked out” and told everyone “They’d have to leave”. At the same time, he heard a noise coming from outside and someone calling out the name “Laliberte” or “Rick James”. Concerned where the events might lead, he ran into the basement from where he made a 911 call. He heard someone coming downstairs looking for someone, but he did not see who it was. Above him, he heard someone kicking in a door.

He believed the door he heard being forcibly opened was the door to his brother’s bedroom. He said he heard a gunshot after the door was forced open. Then he heard his cousin, Mr. Laliberte, yelling, “They shot him. They shot him”. He also heard women screaming that someone was bleeding. F. Jamie Engen [ 44 ] Of the neighbours, it is only necessary at this point to mention Jamie Engen, who lived two doors down from the 27th St. House. Mr. Engen testified that around 5:45 a.m. he saw a red Jeep Grand Cherokee driving west on 27th Street.

He did not see the Jeep stop, but he saw three people coming from the direction it had gone, and they were walking towards the 27th St. House. He described one of these people as a “light-skinned” man with “blonde scraggly hair, slim”. A few minutes later, he heard some noise and saw the same three people running west on 27th Street. When they were out of his line of sight, Mr. Engen walked out of his home. He saw the men about three quarters of a block to the west.

He saw the red Jeep drive past his house again and pick the men up at the end of the block, although he acknowledged that he did not actually see the men get into the vehicle. [ 45 ] As the people were running past his house, Mr. Engen focussed on the one he described to the police as having “blonde hair”. In testimony, he described this person as having “longer hair” and wearing a “red jacket … and the clothing was slimmer”. He acknowledged telling the police that the man appeared to be holding something in his hand as he was running and that the object might have been a stick or a gun.

He also saw something hanging out of that same man’s pockets. As he watched the man running by his house, he saw him drop a boxlike object near a tree on his property in the snow. The man stopped to retrieve it. After the Jeep drove by, and the men were no longer in sight, Mr. Engen went to that spot and discovered an unspent .45 calibre cartridge. He called the police at that time. G. Jason Cottingham [ 46 ] At approximately 5:45 a.m. on April 14, 2014, Jason Cottingham was driving south on 6th Avenue past the front door of the 27th St. House.

He saw three people approaching the front door of the house as he was driving by. They appeared to be walking in single file and one of them, the person in the lead, was carrying something in his hand. Initially, Mr. Cottingham thought the object “resembled a gun, but I figured since this is Prince Albert, this stuff doesn’t happen”. The men were walking toward the front door from the south and were passing the picture window at the front of the 27th St. House as he drove by. [ 47 ] Mr. Cottingham described the first two men as wearing dark hoodies with the hoods up over their heads.

The third person’s head was not covered, so Mr. Cottingham was able to see his face. In fact, Mr. Cottingham made direct eye contact with that man. He described the person as being “about six foot, dirty blonde hair … round face … Caucasian”. Although he was not able to positively

identify Mr. Herron in a photo lineup or in Court as the man with whom he had made eye contact, he testified that Mr. Herron matched the general appearance of the person he saw. H. Constable Acorn [ 48 ] Constable Acorn, on patrol in Prince Albert that night, testified to one event that would have occurred between the First and Second Incidents: At about 5:05 on the same morning , I was on routine patrol. I was driving down northbound on Central, just by the -- this building here. I observed what would have been three females and three males, which included Jordan Herron .

I recognized Jordan Herron from past dealings with him. And they were walking southbound between 19th Street and 20th. They were on the east side of the street. I checked Jordan Herron on CPIC for -- if he had any outstanding warrants or enforceable conditions. He did not. I noted the clothing he was wearing. He was wearing a red T-shirt, dark pants . (Emphasis added) He did not know the other two males or females. He identified Mr. Herron in the courtroom as the person he had seen. I. Physical Evidence [ 49 ] Police investigations at the 27th St.

House revealed a spent shell casing from a .45 calibre cartridge in the bedroom where Mr. Bear had been shot, plus six .45 calibre casings outside the 27th St. House and bullet holes in its exterior, including one in the front picture window. One officer testified that when he searched Mr. Laliberte he found a folding knife with a six-inch blade. III. Mr. Herron’s Appeal A. Mr. Herron’s Points in Issue [ 50 ] Mr. Herron places these points in issue, as distilled from his factum: (

a) the witnesses establishing his presence at the 27th St. House were unreliable and incredible such that “there was a lack of evidence before the jury to support the conclusion that he had the requisite actus reus required to be convicted of second degree murder as an aider or abettor to the offence”; (

b) his presence at the 27th St. House at the time of the shooting alone would be “insufficient to establish that he provided assistance or encouragement to Mr. Johnson in the commission of the offence”; (

c) the evidence before the jury regarding knowledge and intent was circumstantial; (

d) the jury’s verdict of guilty of second degree murder was unreasonable; and (

e) the trial judge erred by not granting a mistrial as a result of Mr. Johnson’s counsel’s address to the jury wherein she referred to wrongful convictions with a special emphasis on Mr. Milgaard’s case. [ 51 ] In his factum, Mr. Herron identified a further issue to the effect that the trial judge erred by failing to provide an adverse inference warning to the jury in relation to (a) “the failure of Derrick Laliberte and Chanese Umpherville to attend court to testify”, and (b) “the failure of the Crown to call Scott Dzik to testify at trial”.

In oral argument on the day of the hearing of the appeal, this ground was abandoned. B. Basis of the Verdict against Mr. Herron [ 52 ] Mr. Herron’s arguments as to the reasonableness of the verdict against him are premised on the jury having found him guilty of second degree murder on the basis that he had aided or abetted Mr. Johnson. He believes that he was convicted on this basis because the trial judge, during the process of determining parole eligibility, stated that “the jury must have concluded that Mr. Herron was involved as a party rather than as a principal offender”.

Crown counsel at trial agreed with this conclusion at the time. [ 53 ] On appeal, the Crown does not necessarily agree with this

interpretation of the jury verdict. In its factum pertaining to each of Mr. Herron and Mr. Johnson, the Crown submits the only sure knowledge that can be taken from the jury’s verdict in relation to Mr. Herron is that the jury was satisfied the essential element of planning and deliberation had been established in relation to Mr. Johnson but had not been so established in relation to Mr. Herron. [ 54 ] The Crown’s submission on this point has merit. The trial judge was establishing parameters for sentencing purposes only and was instructing himself and Mr.

Herron’s trial counsel on the evidence available to him in in crafting a sentence. This decision, when made for sentencing purposes, cannot bind this Court in its assessment of the reasonableness of Mr. Herron’s or Mr. Johnson’s convictions. As will be discussed later in these reasons, there was evidence from which the jury could have reasonably concluded that Mr. Herron and Mr. Johnson were co-principals. However, as I believe Mr. Herron’s appeal can be resolved on the basis that he had aided Mr. Johnson, I need do nothing more than flag the issue at this point.

I will, however, return briefly to the basis of the jury’s verdict when considering Mr. Johnson’s appeal.

C. Analysis of Mr. Herron’s Appeal 1. Reliability of the Witnesses [55] Mr. Herron submits that the evidence of Ms. Soderberg and Ms. Josie, who placed him in the 27th St. House during theSecond Incident, was unreliable; whereas Mr. Ahenakew, who was also present and who would have been in the same position as theother two, did not identify him as one of the perpetrators. Further, he submits that Constable Acorn’s evidence placed him at the CentralAvenue Location approximately 45 minutes before the Second Incident, with persons who were not identified as Mr. Johnson, Mr. Dzikand Ms. Bear. [56] Mr.

Herron argues that neither Ms. Soderberg nor Ms. Josie should have been found to be credible or to have given reliabletestimony, having regard for their level of intoxication and the lack of consistency in their testimony. In my view, this challenge to theirtestimony is misplaced as it fails to consider all the evidence and it attempts to isolate each witness’s narrative. Ms. Josie’s testimonyconfirms Ms. Soderberg’s. Further, Ms. Bear’s testimony provides a broad framework for what had happened that evening and who wasinvolved.

The neighbours’ testimony completes the picture and allowed the jury to make the factual determination that Mr. Herron wasone of the three men who entered the 27th St. House during the Second Incident, which led to Mr. Bear’s death. [57] In R v W.H., 2013 SCC 22, [2013] 2 SCR 180 [W.H.], the Supreme Court exhaustively reviewed the prevailing jurisprudencepertaining to assessing a jury verdict where the primary complaint against the reasonableness of the verdict relates to inconsistencies inthe testimony.

After affirming that credibility is a question of fact that ultimately “must be left to the common sense of the trier of fact…” (R c R.C. (1993), 49 QAC 37 (WL) (CA) at para 16), the Supreme Court addressed the question of how to resolve inconsistencieswithin one witness’s testimony (W.H.): [32] This counsel of caution applies with particular force to verdicts reached by juries. In R. v.

François, (SCC), [1994]2 S.C.R. 827, McLachlin J. (as she then was) reiterated that the general rule enunciated in Yebes “also applies to cases where theobjection to the conviction is based on credibility – where it is suggested that testimony which the jury must have believed to render itsverdict is so incredible that a verdict founded upon it must be unreasonable”: pp. 835–36. There are a number of points in François thatare particularly relevant to this case: … 3. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct.

Particularly where thecomplainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their power toraise a reasonable doubt with respect to the accused’s guilt”: François, at p. 839. Again in François, at p. 837, the Court said this: In considering the reasonableness of the jury’s verdict, the court of appeal must also keep in mind the fact that the jury may reasonablyand lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness’s evidence in itsentirety.

Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimonywas provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness’s evidence whilerejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of theevidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that thejury’s verdict is unreasonable.

A verdict of guilty based on such evidence may very well be both reasonable and lawful [italic emphasisadded by Cromwell J. in W.H.]. [58] In Mr. Herron’s case, after all of the evidence was in, the first issue for the jury would have been whether he was present atthe 27th St. House at 5:45 a.m. on August 14, 2014 (during the Second Incident). Ms. Josie and Ms. Soderberg, his girlfriend at the time,placed him there. Their testimony, however, was subject to challenge because of the following: (

a) their level of intoxication; (

b) their evolving testimony; (

c) their inability to recall the First Incident; and (

d) their conflation of the First Incident and the Second Incident. [59] In light of these potential issues, the trial judge gave the jury a mid-trial instruction with respect to the law pertaining toinconsistent testimony in relation to witnesses whose testimony evolved over time. He also gave a warning in accordance with R vVetrovec, (SCC), [1982] 1 SCR 811, saying, with supporting explanations, that the jury was “entitled to rely on MirandaSoderberg’s evidence even if it is not confirmed by other witnesses or other evidence, but it is dangerous for you to do so”.

Thus, thejury was made fully aware of the dangers inherent specifically in relation to Ms. Soderberg’s testimony. No objection was taken to thisor any other part of the charge dealing with witness credibility or reliability. [60] Armed with this caution about convicting on Ms. Soderberg’s testimony alone, it was nonetheless open to the jury to findconfirmatory evidence in the testimony of Ms. Josie, who also placed Mr. Herron at the 27th St. House during the Second Incident, andwho had identified Mr. Herron and Mr. Johnson in a photo lineup.

This was a matter she attested to in direct examination and thenconfirmed during her re-examination by the Crown: QAnd I believe my friend, Ms. McAuley, had asked you if, in that photo booklet,if that -- that was pictures of the people you were partying with earlier?AYeah.QOkay. So is it one or the other or is it both? ABoth.

QBoth?AYeah.QSo you were partying with them and you’re saying they’re the ones involved inthe incident?AYeah. [61] In paragraph 34 of W.H., the Supreme Court affirmed the statement by Sopinka J. in R v Burke, (SCC),[1996] 1 SCR 474 [Burke], where he concluded that a verdict based on credibility assessment is unreasonable if “the trial court’sassessments of credibility cannot be supported on any reasonable view of the evidence” (Burke at para 7). For the purposes of appellatereview, the jury’s necessary finding that Mr. Herron was present at the 27th St.

House during the Second Incident is supportable by theevidence of Ms. Soderberg, which was confirmed by Ms. Josie’s evidence and the evidence of the neighbour and the passerby whoplaced a white male with “blonde scraggly hair” or “dirty blonde hair” entering the 27th St. House at approximately 5:45 a.m. In cross-examination, Mr. Herron’s counsel did a good job of drawing from witnesses that there was one other blonde-haired man in the mix, i.e.,Mr. Dzik (who did not testify). Nonetheless, the bystanders’ testimony was evidence capable of supporting a finding that Mr. Herron waspresent at the 27th St.

House at the critical time. Further, there are two additional factors that persuade me that a conclusion placingMr. Herron at the 27th St. House during the Second Incident was not unreasonable. [62] First, Ms. Soderberg knew Mr. Herron very well. If any challenge could be made to her evidence regarding the presence ofMr. Herron at the 27th St. House it would be one of partiality for him rather than a bias against him. When counsel for Mr. Johnson wascross-examining her, she elicited this testimony: QOkay. Now, Ms.

Soderberg, do you know -- would you agree with me that inspite of the fact that you’re no longer in a relationship with Mr. Herron, youdon’t want to see him go to jail for the rest of his life?AI don’t think that an innocent person deserves to go to jail, no, and I know he isinnocent.QSo you would agree with me you don’t want to see him go to jail for the rest ofhis life?ANo, because I know he didn’t do it. At this point, Ms. Soderberg would appear to be testifying about Mr. Herron’s innocence based on her misunderstanding of the law thatonly the person who pulls the trigger can be found guilty.

Notwithstanding her voiced partiality for Mr. Herron, Ms. Soderberg placedhim at the 27th St. House at the critical time. [63] Second, from Ms. Bear’s evidence, and the evidence of the others, it would have been open to the jury to find that the Crownhad proved the following: (

a) Mr. Herron was partying with Mr. Johnson, Mr. Dzik, Ms. Soderberg, Ms. Josie and Ms. Bear at the Johnson Residenceearlier that evening; (

b) Mr. Herron, along with Mr. Johnson and Mr. Dzik, entered the 27th St. House during the First Incident; (

c) when they left, Ms. Bear left with them; (

d) the Jeep in which they left stopped at a 7-Eleven; and (

e) while Ms. Bear was in the living room at the Johnson Residence, following the First Incident, Mr. Herron was in the kitchenwith Mr. Johnson and Mr. Dzik. [64] Granted, Constable Acorn’s testimony could be taken as showing Mr. Herron someplace other than the 27th St. House duringthe Second Incident – and in the presence of two unidentified men and three unknown women – but that would not be a reasonablefinding. His presence at the Central Avenue Location is better explained as referring to the group of Mr. Herron, Mr. Johnson, Mr. Dzikand Ms. Bear. This is particularly so because Ms.

Bear testified that, after having gone to the 7-Eleven, they went back to the JohnsonResidence. But, instead of parking near the residence, “I remember parking down a little bit down the road … I just remember walking alittle bit, and then we went inside”. For Ms. Bear, when asked, the first person plural in that statement was “Jordie, Scott and ‘O’”. Itwould not be unreasonable for the jury to infer that the two men that Constable Acorn saw were Mr. Dzik and Mr. Johnson and one ofthe women was Ms. Bear and that they were walking to the Johnson Residence from where they had parked the Jeep. [65] This

interpretation, however, does not identify the other two females in the company of Mr. Herron when Constable Acornsaw him at 5:05 a.m. However, it is not for the jury or an appellate court to account for every detail that does not fit with one narrative.The issue is whether there is evidence that can reasonably support each essential fact that the jury was required to find in order to arriveat a reasonable verdict. The important point here is that the last time Ms.

Bear saw “Jordie, Scott and ‘O’” was when they were in thekitchen and she was in the living room eating food purchased at 7-Eleven, which was some time after 5:05 a.m. and before the SecondIncident. Wherever Mr. Herron was at 5:05 a.m. – if the jury accepted Ms. Bear’s evidence – after that time, and before the SecondIncident, he was in the Johnson Residence with a group that included Mr. Johnson. [66] The next time witnesses see a man with light-coloured hair was outside the 27th St. House, which was immediately before theSecond Incident. And, immediately thereafter, Mr.

Herron is identified positively inside the 27th St. House, where not one but twowitnesses state that he is present. Thus, this finding of fact, which is integral to Mr. Herron’s verdict of guilt, is supported by theevidence, and, notwithstanding the frailties inherent in Ms. Soderberg’s and Ms. Josie’s testimony, it is also reasonable. 2. Presence at the 27th St. House as Being Insufficient for Party Liability

[67] As a proposition of law, Mr. Herron submits he could not have been found guilty as a party because mere presence at thescene of a crime cannot ground criminal culpability. Implicit in this submission is his claim that, if it were reasonable for the jury toplace him there, he was only merely present at the 27th St. House. He relies on R v Briscoe, 2010 SCC 13 at paras 13–14, [2010] 1 SCR411; R v Hibbert, (SCC), [1995] 2 SCR 973 at para 26; Dunlop and Sylvester v The Queen, (SCC),[1979] 2 SCR 881 [Dunlop] at 891; and Preston v The King, (SCC), [1949] SCR 156 at 159–61. In support of hissubmission, Mr.

Herron quotes principally from Dunlop, where Dickson J., for the majority of the Supreme Court, indicated, “Merepresence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principaloffender;

an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away …” (at 891). [68] However, the quote continues, holding that the “something more” could be “an act which tends to prevent or hinderinterference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist theprime culprit” (emphasis added).

After a further extensive review of British and Canadian authorities, Dickson J. concluded, “Presence atthe commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of theprincipal offender’s intention to commit the offence or attendance for the purpose of encouragement” (at 896). The other authorities thatMr.

Herron cites, and that are mentioned above, do not add to the law on this point as stated by Dickson J. in Dunlop. [69] In this case, the trial judge charged the jury on the difference between mere presence and the question of aiding and abetting: Aiding: A person may be a party to an offence, and therefore found guilty of that offence because he helped somebody else to commit it.We describe those who help others commit crimes in this way as aiders. Aiding requires both conduct and a particular state of mind. An aider may help another person commit an offence by doing something.

It is not enough that what the aider does has the effect of orresulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actualassistance is necessary. This is the conduct requirement. It is not enough that a person was simply there when a crime was committed by someone else. Something more is needed to make aperson guilty of a crime as an aider, such as

an act that facilitates the commission of the offence, keeping watch or enticing the victiminto a position where the offence can be committed, or doing something to prevent or hinder interference with the accomplishment of thecriminal act. In other words, just being there does not make a person guilty as an aider of any or every crime that somebody else commits in theperson’s presence. Sometimes people are in the wrong place at the wrong time. On the other hand, if a person: (

a) knows that someone intends to commit an offence; and (

b) goes to or is present at a place when theoffence is committed to help the other person commit the offence, that person is an aider of the other’s offence and is equally guilty of it. Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person committhe offence. The state of mind requirement, expressed by the term “purpose”, requires the Crown to prove both intent and knowledge.

For intent, the Crown must prove that Jordan Herron intended to help Orren Johnson commit the offence, although the Crown need notprove that Jordan Herron desired the successful commission of the offence.

For knowledge, the Crown must prove that Jordan Herron knew that Orren Johnson intended to commit the offence, although the Crownneed not prove that Jordan Herron knew precisely how Orren Johnson would commit the offence. (Emphasis added) This charge with respect to aiding is entirely in accordance with the authorities above cited. (The trial judge went on to provideappropriate instructions regarding abetting, but I need not canvass that aspect of the charge.) [70] Given the evidence that I have already reviewed, the jury could reasonably conclude that Mr. Herron was not merely presentat the 27th St. House.

It would have been open to the jury to have found Mr. Herron had been present there earlier that night with a manwho had a gun that had been used to shoot at a house with people in it. He returned to that house with a man who had a gun – who thejury must be taken to have found to be Mr. Johnson. With Mr. Johnson and another, Mr. Herron forcefully entered the house, stayedbriefly and left rapidly with that same group – after a shot had been fired. On the basis of this evidence, the jury could reasonablyconclude that Mr. Herron knew that Mr. Johnson intended to commit an offence.

Thus, I conclude there is no merit to Mr. Herron’sassertion that he was convicted by his mere presence. Mr. Herron was much more than merely present at the 27th St. House during theSecond Incident. The jury’s conclusion in that regard is reasonably supported by the evidence. 3. Circumstantial Evidence and Knowledge and Intent [71] Mr. Herron makes these three assertions in his factum: (a) “the evidence before the jury in this case was entirely circumstantial”; (

b) there were inferences “available on the evidence before the jury other than that Mr. Herron was present with the intent toprovide assistance to Mr. Johnson”; (

c) the evidence before the jury was insufficient “to support the conclusion that Mr. Herron had the requisite mens rea to beconvicted of second degree murder as an aider or abettor”. [72] Regarding his first point, I would not say that the evidence tendered by the Crown was entirely circumstantial. There wasdirect evidence before the jury of the presence of Mr. Herron and Mr. Johnson in the 27th St. House during the First and SecondIncidents. There was direct evidence that, shortly after their group had left the 27th St. House after the First Incident, someone had shot a

bullet through the picture window of the living room where people were present. There was direct evidence that Mr. Johnson entered thehouse with a gun during the Second Incident and left the house with a gun saying, “Keep your mouth shut”. The evidence as to who shotMr. Bear and the circumstances surrounding the shooting itself were entirely circumstantial, but the evidence implicating Mr. Herron ashaving aided Mr. Johnson, assuming the jury found Mr. Johnson to be the perpetrator, was a combination of direct and circumstantialevidence. [73] I would, however, acknowledge that the evidence of Mr.

Herron’s intent was circumstantial – in that, there was nothingoverheard or seen from which the jury could find intent on a direct basis. Mr. Herron’s arguments on this point bring to bear the SupremeCourt’s decision in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman], where Cromwell J. wrote the following: [55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris,2000 SCC 15 , [2000] 1 S.C.R. 381.

Applying this standard requires the appellate court to re-examine and to some extentreweigh and consider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186. This limitedweighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends oncircumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’sguilt was the only reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v.

Mars (2006), (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v.S.L.R., 2003 ABCA 148; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. (Emphasis added) [74] Some controversy remains about whether these same principles apply to the mens rea of an offence: see S. Casey Hill, DavidM. Tanovich, and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 2019-No 3) 5th ed, vol 3,

Part VI(Toronto: Thomson Reuters, 2017) at 31-14 to 31-15 (including fn 72); R v Delege, 2018 BCCA 200 at para 16, 362 CCC (3d) 256; andR v Robinson, 2017 BCCA 6 at para 23, 344 CCC (3d) 176 (aff’d, 2017 SCC 52, [2017] 2 SCR 382). However, in this case, I need notresolve the question of whether the circumstantial evidence principles apply to the mental element of aiding and abetting because thatissue is not directly before the Court on this occasion.

The trial judge charged the jury on the basis that “before you can conclude thatJordan Herron had the intent to commit murder, you must be satisfied beyond a reasonable doubt that that is the only reasonableinference that can be drawn from the evidence”. Thus, the trial judge put Mr. Herron’s case at its highest – and it is on that basis thatboth Mr. Herron and the Crown have argued this appeal. [75] Assuming then that the circumstantial evidence principles apply to the mental element, I will address Mr. Herron’s argumentthat Ms.

Soderberg’s testimony “is equally capable of supporting the inference that [he] was not present for the purpose of aiding orabetting Mr. Johnson but rather to try to get Ms. Soderberg to leave the house” (Mr. Herron’s factum at para 62). [76] In her address to the jury, Mr. Herron’s counsel stressed that the mental element had not been proven and suggested analternative inference that could be drawn to explain her client’s presence at the 27th St.

House: The defence submits that there is no evidence before the court to suggest that Jordan Herron and Orren Johnson were working together,were working in concert other than by the testimony of Miranda Soderberg and Danielle Josie, who both stated that Orren Johnson andJordan Herron came into the house of Cam Morin, and that this was around the time that Clayton Bear was shot. I spoke about the -- theproblems with their testimony. There is no evidence before the court as to anyone hearing Jordan utter words of intent.

According toMiranda she did not hear Jordan Herron talking at this time, only Orren Johnson and Eric. They were yelling. She didn’t understand whatthey were saying. She didn’t hear what they -- the words they were saying. Miranda testified to Jordan Herron distancing himself from Orren Johnson and trying to get her out of the house for her own safety. Noone saw Jordan Herron with a weapon or a gun. Jordan did not threaten anyone with words or gestures. There was no close contactbetween Jordan and Orren.

His physical -- physical proximity was nowhere near Orren Johnson according to Miranda as he was standingby the front door, in front of the arm chair. And no one testified that Orren -- that Jordan Herron knew what Orren and Eric were up to, ifthey were up to anything. There is no evidence that Jordan and Orren were acting in concert in words of intent or action of intent.

Jordan is physically separate atthat incident that Miranda is testifying to, from Orren Johnson, when the shots are allegedly fired. (Emphasis added) [77] By virtue of the verdict, the jury must have decided that it would not be a reasonable inference to draw from the whole of theevidence that Mr. Herron’s presence was explained on the basis he was there to retrieve Ms. Soderberg and for no other purpose.Applying Villaroman to this element, the question is whether the jury, acting judicially, could reasonably be satisfied that the onlyreasonable conclusion is that Mr. Herron was at the 27th St.

House with the intent to aid Mr. Johnson. [78] By the time the jury reached the point in its deliberations where it would have to determine knowledge and intent on the partof Mr. Herron, the jury would have already found that Mr. Herron had been present not once but twice with Mr. Johnson at the 27thSt. House. On the first occasion, it would be reasonable to infer that one of their group had fired shots at a house with people in it. On thesecond occasion, Ms. Soderberg placed the gun in the hand of Mr. Johnson. [79] Ms. Soderberg’s evidence was that the three men – Eric, Mr. Johnson and Mr.

Herron – came “ramming through the door”.Ms. Josie’s evidence was that they were “running around the house”. Mr. Ahenakew’s police statement on the day of the offence wasthat the men who entered the 27th St. House were “looking for someone”. Mr. Smith’s evidence was such that he fled the living room onhearing someone call out for Mr. Laliberte. He also heard someone looking around in a basement bedroom and someone in his brother’sroom, which was not quite above him. The three men also left together – even though Mr. Herron had asked Ms.

Soderberg, on thissecond occasion, to accompany him and she had decided she would not. There was also evidence from a neighbour from which the jurycould find there was a getaway car waiting to take them away. This is powerful evidence from which the jury might reasonably infer that

Mr. Herron’s presence in the 27th St. House was not explained solely on the basis of helping Ms. Soderberg leave with him, but rather,he was there for the purposes of aiding the prime assailant. [80] Further, from the record, there is also more. If the jury accepted Mr. Engen’s evidence, it was a slim man with “blondescraggly hair” that dropped and picked up a box that left an impression in the snow. In that same spot, Mr. Engen found an unspent .45calibre cartridge – the same calibre as the bullet that killed Mr. Bear. [81] Finally, I cannot discount the Crown’s theory that Mr. Herron and Mr.

Johnson were present during the Second Incident toseek revenge for acts of disrespect, i.e., enticing their female friends away from them on the pretense that all would be welcome at the27th St. House only to be rebuffed when they attempted to join the party. To add insult to injury, they were rebuffed by a man with aknife and one of the women was Mr.

Herron’s girlfriend. [82] All of this evidence is sufficient to support the finding that the jury would have to make regarding the mental element that“Jordan Herron knew that Orren Johnson intended to commit the offence” and that “Jordan Herron intended to help Orren Johnsoncommit the offence”. [83] In that regard, the trial judge instructed the jury with respect to Mr.

Herron and how to determine the mens rea of aiding andabetting: Intent as an aider or abettor: If you conclude that Jordan Herron committed the unlawful act by aiding or abetting Orren Johnson to shootClayton Bear, then in order for you to conclude that Jordan Herron had the intent required for murder, the Crown must satisfy youbeyond a reasonable doubt that Jordan Herron intended to aid or abet Orren Johnson to commit the offence of murder.

If you are satisfied: (1) that Jordan Herron’s acts actually aided or abetted Orren Johnson to commit the offence of murder; and (2) thatJordan Herron, at the time of his acts, knew that Orren Johnson intended to commit the offence of murder, you must then decide whetherJordan Herron performed those acts with the intention to aid or abet (i.e., to assist, facilitate, encourage or make it easier for OrrenJohnson to commit the offence of murder). You may be wondering how you decide what someone intends.

Intention is a state of mind, and we cannot physically see inside otherpeople’s minds to decide whether or not they intend to do something. Thus, you will have to use your common sense and infer from allthe evidence you have heard, including anything Jordan Herron said or did, whether Jordan Herron had the intention to aid or abet OrrenJohnson to commit the offence of murder. You are entitled, as a matter of common sense, to draw an inference that a sane and sober person intends the natural and probableconsequences of his voluntary actions.

So if you decide that the conduct of Jordan Herron would naturally have the effect of aiding or abetting Orren Johnson to commit theoffence of murder, you are entitled to conclude that Jordan Herron knew and intended that his conduct would aid or abet Orren Johnsonto commit the offence of murder. You are not required to draw this conclusion.

Before relying on this common sense inference that aperson normally intends the natural and probable consequences of his or her voluntary actions, you must consider all the circumstancesin this case, including evidence of what Jordan Herron said and did, in deciding whether the common sense inference should be reliedupon in this case. (Emphasis added) [84] Considering the whole of the evidence in light of this charge, it would be reasonable and supported by the evidence for thejury to have found that the only reasonable conclusion was Mr. Herron knew and intended his conduct would have the effect of aidingMr.

Johnson in the commission of the offence of causing grievous bodily harm or murder. 4. The Verdict Is Supported by the Evidence and Not Unreasonable [85] In light of the preceding sections of these reasons, there is little left of Mr. Herron’s assertion that the jury’s verdict of seconddegree murder was unreasonable. I have already concluded that the jury’s findings regarding Mr. Herron’s presence at the 27th St.

House– and his knowledge and intent – would be reasonable. [86] At paragraph 34 of W.H., the Supreme Court affirmed R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 [Biniaris], where ArbourJ. stated, “the unreasonableness … of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of agiven case, judicial fact-finding precludes the conclusion reached by the jury” (at para 39). Biniaris was released at the same time as R vA.G., 2000 SCC 17, [2000] 1 SCR 439 [A.G.], and R v Molodowic, 2000 CSC 16 , 2000 SCC 16, [2000] 1 SCR 420[Molodowic].

In both of these decisions, Arbour J., for the majority, stated that a “reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict wasa reasonable one” (emphasis added, A.G. at para 6 and Molodowic at para 1).

The Supreme Court in Molodowic recognized the fine linebetween taking a different view of the evidence – which is not a permissible exercise of appellate review – and carefully reviewing theevidence to discover whether a verdict is “inconsistent with the requirements of a judicial appreciation of the evidence” (at para 1). Theline is a fine one because, as the Supreme Court stated in Molodowic, “Inevitably the verdict will be one that was open to the jury, in thesense that it was not an error of law for the trial judge to leave it to the jury for consideration” (at para 1).

Importantly, W.H. cautionsthat “appellate review for unreasonableness of guilty verdicts is a powerful safeguard against wrongful convictions” but “it is also onethat must be exercised with great deference to the fact-finding role of the jury” (at para 34). [87] Viewing the verdict through the lens of the above authorities, nothing in relation to the verdict would lead me to conclude thatit is “inconsistent with the requirements of a judicial appreciation of the evidence”, to use the words of Molodowic. Thus, I conclude thejury’s verdict is not only supported by the evidence, but that it is not unreasonable.

It was reasonable for the jury to conclude thatMr. Herron’s guilt was the only reasonable conclusion available on the totality of the evidence.

5. Denial of a Mistrial [ 88 ] That brings me to Mr. Herron’s final ground of appeal. During the course of her closing arguments, counsel for Mr. Johnson made numerous references to wrongful convictions, including specific, detailed and lengthy references to David Milgaard. In doing so, Mr. Herron submitted that Mr. Johnson’s counsel had undermined the fairness of the trial and invited the jury to avoid convicting Mr. Johnson, while suggesting Mr. Herron was the more likely perpetrator. Counsel for Mr.

Herron asked the trial judge to declare a mistrial or come up with a suitable direction to the jury on the point. [ 89 ] After hearing submissions, the trial judge prepared an instruction for the jury that was reviewed by both counsel who expressed their satisfaction with the proposed wording. As a result, the trial judge instructed the jury as follows: Before I begin those final instructions, I need to give you an instruction that relates to the closing arguments made by counsel yesterday. In her closing argument to you on behalf of Mr. Johnson, Ms.

Trach relating to you the facts of a very famous case of a wrongful conviction, that of David Milgaard. As I told you at the outset of the trial, you are required to decide this case based on the evidence heard during the course of this trial and only the evidence heard during the course of this trial.

It is true that there have been cases of wrongful convictions in Canadian history, and you need to be mindful of considering the evidence carefully and diligently, and with proper attention to the important legal principles of the presumption of innocence and the requirement for proof beyond a reasonable doubt, but it is not appropriate for you to decide this case on the basis of what happened in some other case. You are required by the oath or affirmation that you took at the start of this trial to consider the evidence in this case, the submissions of counsel, and my instructions to you on the law.

If, after diligently doing so, you are satisfied beyond a reasonable doubt of the guilt of an accused, you must return a verdict of guilty against him. To decline to return a verdict of guilty, if you are satisfied beyond a reasonable doubt of the guilt of an accused because of the miscarriage of justice in other cases, that would be an improper step on your part. After the trial judge read this instruction to the jury, he gave his charge to the jury. At no point thereafter did trial counsel express their dissatisfaction with the trial judge’s resolution of the problem in this manner. [ 90 ] On appeal, Mr.

Herron’s new counsel renews the concerns that were expressed by Mr. Herron’s trial counsel and submits that the correcting instruction “was insufficient to remedy the impact of the statements made by Mr. Johnson’s counsel on the fairness of the trial process” (Mr. Herron’s factum at para 103). He submits that the instruction “only addressed the issue of the jury relying on the facts of the David Milgaard case, as relayed by Mr. Johnson’s counsel, in their determination of guilt” when “the comments of Mr.

Johnson’s counsel went beyond relaying the facts of the David Milgaard case and invited the jury to make their decision based on sympathy and fear”. [ 91 ] Mr. Herron’s appeal counsel particularizes his concerns: 104. Counsel for Mr. Johnson presented what she referred to as “preconceived notions” derived from the Milgaard case and suggested that reliance on those “preconceived notions” were the cause of Mr. Milgaard’s wrongful conviction.

She then proceeded to apply these principles to the facts of the case before the jury, and suggested that reliance on these same preconceived notions could have the same effect in this case. For example, at page T1178, lines 14–36 she suggests: Preconceived notion number 2: If a witness says that they saw something, it must have happened. As you can see from the Milgaard case, given that Nicole told the police that she saw Milgaard stab the victim, witnesses don’t always tell the truth. This doesn’t always mean that they have to be willing to lie. Witnesses can be wrong for many, many reasons.

They can be mistaken. They can have impressions that change and develop over time after hearing from others, and the media, or speculating about the situation themselves. They can be influenced by drugs and alcohol. They can -- they can be persuaded by police and other individuals involved. People naturally want to please. They want to help solve a crime. So they can subconsciously pick up on something someone says, a police officer tells them, something they hear in the news, and then believe it actually forms part of their own memory. And then there are some people who really just lie.

The list of reasons for witnesses to be inaccurate goes on and on, but this is a problem that plagues our justice system because many of our wrongful convictions in this country are a result of erroneous eyewitness testimony. Now, our trial Justice has already spoken to you about inconsistencies in witness’ evidence and how they -- how you should consider them. The Justice will be telling you about that in much more detail after I’m finished. However, I urge you to be very careful in a case such as this where you have heard no physical evidence putting Mr.

Johnson at the scene of this incident, that you don’t let the preconceived notion that a witness will always speak the truth, misguide you in this case. Appeal counsel submits that the statements of Mr. Johnson’s counsel went well beyond those of defence counsel in R v Tomlinson , 2014 ONCA 158 at para 104 , 307 CCC (3d) 36, and that the correcting instruction, along the lines of what was found to be acceptable in that case, is not appropriate. [ 92 ] The Crown agrees that counsel for Mr. Johnson should have avoided referring to Mr.

Milgaard’s case by name, and should not have summarized the evidence from that case at all. Relying on R v Horan , 2008 ONCA 589 at para 69 , 237 CCC (3d) 514, the Crown affirms it is not proper for counsel to make anything more than passing reference to the potential for a wrongful conviction, unless the case before a court turns on eyewitness identification evidence. In this case, however, the Crown submits that Mr.

Herron’s argument on appeal, based on counsel’s address at trial, is frivolous and totally without merit, having regard for the ultimate verdicts and the correcting instruction given by the trial judge. [ 93 ] I agree with the Crown that this ground of appeal lacks merit. I fail to see how Mr. Herron was prejudiced by an address that was intended to benefit Mr. Johnson, but in effect, could also be seen as benefiting Mr. Herron. In the concrete reality of this case, the jury convicted Mr. Johnson of first degree murder and Mr. Herron of second degree murder.

Further, this is not an appeal of an acquittal, where one might more readily find fault with an address to the jury by counsel referring to wrongful convictions (see, for example, R v Spackman , 2012 ONCA 905 at para 262 , 295 CCC (3d) 177). Finally, an appropriate correcting instruction, which was accepted by Mr. Herron’s counsel, was given.

[ 94 ] Thus, for these reasons, I would dismiss Mr. Herron’s appeal on this ground as well, with the result that his appeal must be dismissed. IV. Mr. Johnson’s Appeal [ 95 ] Mr. Johnson submits that the jury rendered unreasonable and inconsistent verdicts against him and Mr. Herron. In making these arguments, he relies on R v Pittiman , 2006 SCC 9 , [2006] 1 SCR 381 [ Pittiman ].

In Pittiman , Charron J. addressed the concept of unreasonable and inconsistent verdicts: [7] The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts , has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness’s testimony . Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous.

Similarly, the jury is not bound by the theories advanced by either the Crown or the defence . The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. … [8] The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparent from the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable. The jury’s task is not to reconstruct what happened.

Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt . … [9] The reasonableness of a verdict in the case of multiple accused charged with the same offence will require a consideration of much the same factors. For example, the jury may accept the complainant’s testimony as credible in respect of one accused, but reject the complaint against another. The overall strength of the evidence relating to each accused may not be the same, leaving the jury with a reasonable doubt on the guilt of one, but not of the other.

Of necessity, the case of multiple accused will also raise different considerations. For example, when considering a single accused who is charged with multiple offences, there is little to be gained by asking whether the evidence is the same. The evidence, by definition, will be different for each offence.

Conversely, whether the evidence is the same will be the primary focus when considering inconsistent verdicts as between multiple accused charged with the same offence. … [13] … Where, as here, the evidence against the appellant is significantly stronger , there is no unfairness resulting from the fact that the case was proven beyond a reasonable doubt against him, but not against the co-accused. (Emphasis added) [ 96 ] The trial judge instructed the jury that for the Crown to prove that Mr.

Johnson committed first degree murder, the jury needed to be satisfied beyond a reasonable doubt that the murder was both planned and deliberate. The trial judge provided the jury with

definitions for those terms: If you conclude that Orren Johnson committed murder, either as a principal offender or as a co-principal, then you would move on to consider whether that murder was planned, in the sense that it was committed as part of a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed . You would also have to consider whether the murder was deliberate, in the sense that it was considered, and not impulsive.

Both elements of planning and deliberation must be proved to your satisfaction beyond a reasonable doubt before you can find Orren Johnson guilty of first degree murder. To prove first degree murder, the Crown must prove beyond a reasonable doubt not only that Orren Johnson had the intent required for murder, but also that the murder was both planned and deliberate. Planning and deliberation are not the same as intention. For example, a murder committed intentionally, but on a sudden impulse or without prior consideration, is not planned and deliberate .

It is the murder itself that must be both planned and deliberate, not something else that Orren Johnson did. The words “planned” and “deliberate” do not mean the same thing. “Planned” means a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed. The plan does not have to be complicated. It may be very simple. Consider the time it took to develop the plan, not how much or how little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately.

Another person may prepare a plan and wait a while, even quite a while, to carry it out. “Deliberate” means considered, not impulsive, slow in deciding. In order to conclude that a murder was deliberate, you must be satisfied that it was carefully thought out, not hasty or rash . In order to find that Orren Johnson’s murder of Clayton Bear was deliberate, you must conclude that Orren Johnson took the time to weigh the pros and cons of his intended actions .

In deciding that question, you may consider a number of factors, including the amount of time of that passed between the formation of the plan and the action taken to carry it out; the extent, if any, of the opportunity that existed for Orren Johnson to weigh the consequences of his actions; and whether there is evidence that Orren Johnson did, in fact, consider the consequences of his actions before carrying them out. (Emphasis added) [ 97 ] The trial judge also instructed the jury that the case against Mr. Johnson was entirely circumstantial on the element of planning and deliberation.

Then he went on to direct the jury that it must be satisfied beyond a reasonable doubt that the only reasonable inference that could be drawn was that the murder of Mr. Bear was planned and deliberate on the part of Mr. Johnson in order for him to be found guilty of first degree murder.

[ 98 ] Mr. Johnson makes what are, in essence, two arguments in support of the proposition that the verdicts are inconsistent. First, he submits that the evidence was essentially the same against both Mr. Herron and him. He says that the Crown’s case of premeditated murder was entirely circumstantial as there were no eyewitnesses to the shooting itself. He submits there was no “extra” evidence against him from which the jury could conclude planning and deliberation on his part and not on the part of Mr. Herron. Second, he submits that it was unreasonable for the jury to conclude that Mr. Herron was aware of Mr.

Johnson’s intention to kill Mr. Bear but not that Mr. Johnson had planned and deliberated to do so. He makes this argument because the evidence indicated that the two of them were together between the First and the Second Incidents. 1. Comparison of the Evidence against each Appellant [ 99 ] On the first point, I agree with Mr. Johnson that the trial judge directed the jury to consider the exact same evidence in order to determine whether the Crown had proven planning and deliberation beyond a reasonable doubt.

In my view, however, the fact that the trial judge recounted the same evidence in relation to the two men is not determinative of whether the verdicts are inconsistent. [ 100 ] As Charron J. stated in Pittiman , “whether the evidence is the same will be the primary focus when considering inconsistent verdicts as between multiple accused charged with the same offence” (at para 9). Nonetheless, she also stated that an appellate court must weigh the overall strength of the ev

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