At the centre of the Nova Scotia Court of Appeal decision in R. v. Greenwood, 2022 NSCA 53 was Leslie Greenwood, convicted in 2018 of first-degree murder for his alleged role in the killing of two people as part of another man’s bid to clear a drug debt.
A main issue before the Appeal Court was whether the trial judge properly instructed the jury at Greenwood’s trial on the mens rea — the intent to carry out a crime — in the aiding and abetting in the murders.
In the end, the Appeal Court ordered a new trial for Greenwood.
This will be Greenwood’s third trial for these murders. He was first convicted by a jury in 2012, but Nova Scotia’s Appeal Court set aside the convictions and ordered a new trial. In early 2018, Greenwood was again convicted. He then appealed that verdict, claiming several errors made by the judge presiding over his second trial.
This long and winding and much publicized case dates back to September 2000, according to the July 26 written appeal decision.
Michael Lawrence, fresh out of prison and suffering from “symptoms of schizophrenia,” owed $28,500 in drug money to Curtis Lynds, a man Lawrence met while the two were in prison together in 1996.
Originally, Lawrence hatched a plan to get a gun, carjack a vehicle, kill the driver and use it to rob a Brink’s bank truck that had been arriving at a Halifax Superstore every morning.
Lawrence, along with two other men, Jason Lindsay and Jonathan Burgoyne, met with Lynds to tell him of the plan.
Lawrence did the carjacking and killed the driver but fell short of carrying out the actual robbery by running late and arriving at the Superstore to see the bank truck pulling away.
Rather than allow Lawrence another shot at the robbery, Lynds came up with another plan: To repay his debt, Lawrence would carry out a hit on a man named Kirk Mersereau and a woman named Nancy Christensen.
The killings would take place inside Mersereau’s home.
(Lawrence would go on to plead guilty in 2012 to killing Mersereau, Christensen and the driver in the carjacking,)
At Greenwood’s second trial, Lawrence testified it was at this point Lynds brought Greenwood into the mix. Lynds’ plan was for Greenwood to go with Lawrence to Mersereau’s home because Mersereau trusted Greenwood, which would allow for easy access to the home.
They drove to Mersereau’s in the stolen truck used in the botched Superstore robbery, with Greenwood behind the wheel.
Lawrence testified that Lynds’ plan was for Greenwood to enter the home and shoot Mersereau and Christensen, then Lawrence would go in to make sure the two were dead. He and Greenwood would then flee the scene, drop the guns into a river, set fire to the truck and drive away in Greenwood’s car.
Lawrence told the trial court that he stayed in the truck while Greenwood went into the home. He claimed to have gone into the home after hearing gunshots. Both Mersereau and Christensen appeared dead, but Lawrence shot each in the head.
At trial, Greenwood did not testify, but portions of his statement to undercover police and parts of his arrest statement were played for the jury, in which Greenwood says that while he did drive with Lawrence to Mersereau’s home, he was under the impression they were there to pick up drugs and that he knew of no plan to kill anyone.
His arrest statement also has Greenwood saying that he walked out of the home while Lawrence stayed inside to talk with Mersereau and Christensen. Greenwood claimed that he then heard gunshots and that Lawrence ran out of the home and said, “Ask me no questions, I’ll tell you no lies.”
And at Greenwood’s first trial, Lindsay, one of the other men allegedly involved, testified that did not recall Lawrence referring to “we” when talking about those murders.
Forensic evidence confirmed two guns had been used in the Mersereau-Chritensen killings, but it could not be determined if there were one or two shooters.
In the end, Nova Scotia Appeal Court Justice David Farrar, with Justices Elizabeth Van den Eynden and Carole Beaton concurring, found the judge presiding over Greenwood’s second trial erred in a number of ways, including in his instructions to the jury on what is required for “party liability.”
Justice Farrar looked to R. v. Saleh, 2019 ONCA 819, in which Ontario’s Appeal Court found the “fault requirement” for first-degree murder in aiding and abetting is the aider “must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder.”
Justice Farrar noted that while the judge explained “the elements of murder, generally,” he did not describe the “distinct essential elements of aiding, including the mens rea for party liability, nor relate the general description of aiding to the specifics of this case, nor review the evidence that may point to the appellant as a party to the offence.”
“Second, the trial judge did not instruct the jury that a finding of guilt for first degree murder as a party required the appellant to have knowledge of the principal’s planning and deliberation,” wrote Justice Farrar, citing R. v. Kelsie, 2017 NSCA 89.
“As in Kelsie, to assume that the jury ‘would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation’ is not sufficient.”
Justice Farrar also noted that Greenwood’s trial lawyer did not object to the judge’s instructions to the jury.
“Other than Lawrence’s testimony, there was no evidence that Greenwood was involved in the planning and deliberation of the murders,” found Justice Farrar. “Lindsay’s evidence … certainly calls into question Greenwood’s involvement and knowledge that a murder was going to take place, let alone a planned and deliberate murder.”
Adelina Iftene, Dalhousie University
“This could benefit from more clarification in terms of guidelines, but also in terms of building knowledge in this area because, of course, the consequences are serious,” Iftene told The Lawyer’s Daily. “You get a reversal on appeal and that is going to lead to a new trial and another decade of dealing with this.”
Iftene said judges and lawyers should study other appellate decisions in this area, and that the Supreme Court of Canada has provided some model instructions in some areas that are helpful, but that “there isn’t a model instruction on this,” specifically.
Iftene said “it is really important to have a clear authority in the province on this specific issue.”
“But, again, [it’s] not only judges, it is about the defence counsel, it is … about the Crown, familiarizing themselves with this requirement. I think it will be a significant step forward. … Having this in the province as an appellant level authority, I think is going to go a long way in clarifying this issue, and hopefully we’re going to see, at least in this province … [fewer] of these errors.”
Greenwood’s appeal lawyer, Michelle Psutka, of Toronto’s Fenton Law, said she could not provide substantive comment on the decision, but did say Greenwood “had a strong appeal as evidenced in the court’s decision” and that he “is pleased with the result of his appeal and maintains his innocence.”
Crown Mark Scott said he was unable to comment.
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