R. v. D. R. (First Degree Murder)

Charge: First Degree Murder

Location: Hamilton Superior Court of Justice (Jury Trial)

BACKGROUND

In January of 2015 five males entered into a known drug house, where one of them confronted two males who were in the kitchen. He pulled out a gun and shot one of the males 9 times. The male died. The shooter was later convicted of first degree murder at trial in 2019. The four other males were all charged with first degree murder as parties to the offence. Three of the other males all pled to the lesser included charge of manslaughter, all receiving serious and lengthy sentences. Our client was the only one of the 5 to take his case to trial.

THE STRATEGY

Bail

Our client was arrested in the summer of 2017. Because of the seriousness of the charge, getting bail was going to be difficult, but crucial to provide us with the proper time to mount a thorough defence. Having our client sit in jail during the entire process would mean he would lose his liberty for close to two years, and also put undue pressure on the defence team to rush. Our client made it clear from the beginning that he did not wish to plea, so we felt the pressure of being successful at the bail stage. The crown had put an incredible amount of resources into the prosecution of all 5 accused and had a 100+ page power point presentation available to them at the bail stage. The special bail hearing was conducted over a 4 day period. The combination of defence counsel pointing out potential weaknesses in the crown’s case and a very well thought out and comprehensive bail plan led to a successful bail and our client was released.

The grounds for defence were based on two avenues, Identification and Reasonable doubt that the crown made out the essential elements of the offence of being party to the murder.

Identification

For identification the crown was relying on video surveillance and the testimony of a witness who viewed the video and stated she believed that the person in the video was the accused. The defence was able to cross examine the witness at both the preliminary hearing and the trial. At the trial, the defence believed that the evidence from the witness during examination in chief went to the jury in way that was favourable to the defence. The witness appeared nervous and very unsure of herself. Her recollection of facts was inconsistent at times, and we believed it to be damaging to the crown’s case on ID. We made the difficult but important strategic decision to be very brief in cross examination. We did not want to give the witness a chance to repair some of the things she had said during her examination in chief. It is always more powerful when a witness gives evidence good for our case during the crown’s examination in chief.

Party to the Offence

Our arguments on party liability attacked the crown’s assertion that our client went to the house with the shooter with a common purpose to either commit murder, or to commit an indictable offence of violence that he knew, or ought to have know was likely to cause death. We knew that the judge was ultimately going to put manslaughter in front of the jury so we needed to attack the entirety of the crown’s case that our client had gone there for an unlawful purpose of violence at all. We focused on the crown’s lack of evidence that our client knew the shooter had a gun, what his purpose was or that he had either aided or abetted the shooter in any way. In addition, we specifically dissected certain elements of the crown’s evidence using it against the crown’s theory. Ultimately we felt like our rebuttal of the crown’s case was strong enough that we decided not to call a defence.

THE RESULT

At the conclusion of a three-week trial, the jury deliberated for almost two full days. It is not possible to know what ultimately led to their decision, but the jury came back with a verdict of NOT GUILTY on all charges. After a long journey of more than two years since his arrest, our client was able to walk out of the court room a free man, able to go through life without so much as a criminal record. As we always believed our client to be innocent, this was a huge relief to everyone who worked on his case.