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APPEALS - Unreasonable verdict - Powers of appellate court

Tuesday, February 04, 2020 @ 6:32 AM  


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Appeal by Jason Maestrello from his conviction on two counts of first-degree murder and one count of attempted murder. The charges arose out of a planned drug rip-off. The deceased were two large-scale marijuana dealers. They were lured to an isolated location for the supposed purpose of completing a major drug transaction in which the deceased were going to purchase a large amount of marijuana for a significant sum of money. At the location, the deceased were each shot multiple times. Four individuals were involved in the drug transaction from the seller’s side, Jason Maestrello, Michael Boyle, Roger Belair, and Andrew Paul. Maestrello and Boyle on the one hand, and Belair and Paul on the other, had diametrically different positions as to who orchestrated the rip-off and who shot the deceased. Only Belair and Paul gave evidence at the trial. Belair testified that Maestrello and Boyle shot the deceased and that he was later ordered to shoot Paul. He shot Paul in the back of the head and left him for dead, but Paul survived. Belair reached an agreement with the Crown by which he agreed to plead guilty to a charge of aggravated assault with respect to the shooting of Paul, in return for his cooperation with the police in the prosecution of Maestrello and Boyle for the murders. The jury convicted Maestrello. On appeal, Maestrello argued that the verdicts were unreasonable and that there were several errors in the trial judge’s charge to the jury.

HELD: Appeal allowed. The jury's verdict could be supported by a reasonable view of the evidence put before them at trial. However, errors made by the trial judge in instructing the jury, particularly on the issue of post-offence conduct, were sufficiently serious that the verdicts could not stand. The defence had asked the judge to give a Vetrovec warning to the jury concerning the testimony of Clarissa Thompson, who was Belair’s estranged wife. While Thompson was not the type of witness that required a formal Vetrovec caution, she was an important witness who, given her changing story and her personal connection to Belair, required some attention by the judge in his review of the evidence. The judge gave Vetrovec warnings for Belair and Paul. The judge erred in not better explaining to the jury the reasons why they should approach Paul’s evidence with caution. The judge also erred in his approach to confirmatory evidence. He ought to have better explained how the evidence that he was reciting as confirmatory was, in fact, confirmatory. However, the jury was made aware that they should approach the evidence of Belair and Paul with caution and, while they could accept their evidence, it would be dangerous to do so. The judge gave the jury the standard instruction regarding the post-offence conduct of the disposal of a bag with guns and other items in the river, and the burning of clothes at a farm. The judge's instruction on post-offence conduct invited the jury to jump directly to the issue of guilt. However, the post-offence conduct pointed as much to Belair being the murderer as it did to Maestrello. Of significance was the fact that the guns belonged to Belair. The jury was left without adequate instruction as to how to properly use the evidence of post-offence conduct. The instruction on post-offence conduct was repeated in response to questions from the jury. The verdicts were set aside, and a new trial ordered.

R. v. Maestrello, [2019] O.J. No. 6131, Ontario Court of Appeal, J.M. Simmons, G. Huscroft and I.V.B. Nordheimer JJ.A., December 4, 2019. Digest No. TLD-February32020004