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| John L. Hill |
The female victim survived being shot in the chest with a crossbow by a disguised assailant posing as a delivery person after confirming her name.
The trial judge highlighted the “devastating and life-changing” injuries to the victim and the increased seriousness of intimate partner violence, calling it a miracle she survived after multiple life-saving surgeries.
The attack took place in Mississauga, Ont., on Nov. 7, 2018, after Jaggernauth unsuccessfully tried to recruit a former biker gang member to kill her, then organized a hit with a crossbow. The shooter was never identified.
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His sentence — 16 years for attempted murder and six months concurrent for counselling to commit an indictable offence — was at the high end for such cases.
Jaggernauth appealed, citing four grounds on which he argued the trial judge misinterpreted the evidence.
a) The trial judge misunderstood the message conveyed in a telephone call between Jaggernauth and a friend named Paul Eakin, a former member of the Satan’s Choice Motorcycle Club. Eakin testified that, while he was in the club, he knew people who had offered to kill his ex-wife. The trial judge concluded that the appellant was serious when he asked Eakin for help to find someone to kill Pimenta. The judge determined that the call took place between May and November 2018.
b) The trial judge made an error in finding, based on Pimenta’s unreliable evidence, that the shooter asked, “Are you Marlene?” and in concluding, based on that evidence, that the attack was a targeted attempt to kill her.
c) The trial judge erred by improperly admitting opinion evidence regarding the appellant’s subsequent conduct between Nov. 8 and Nov. 22, 2018, and in failing to consider reasonable alternative explanations for that conduct.
d) Finally, the defence argued that the verdicts were unreasonable.
In assessing these grounds, the Court of Appeal found no misunderstanding in the trial judge’s acceptance that Eakin was asked about killing Pimenta. It was not “drunken rambling” as Jaggernauth argued; instead, it was a deliberate question to a person Jaggernauth knew was connected to a biker club and who could arrange a hit (R. v. Jaggernauth, 2025 ONCA 579).
Was Pimenta unreliable? Pimenta initially described a fictional attack and had a vague memory during her first police interview, when she recalled the shooter saying, “This is from Roger.” She believed those words were used again when describing the attack in which she was wounded. The trial judge found that the assailant did say, “Are you Marlene?” However, this finding was not essential to determining guilt and did not indicate a significant error (R. v. Kruk, 2024 SCC 7).
Regarding the third ground, the appeal court found that the trial judge properly considered Jaggernauth’s conduct after the event. The trial judge’s reasons cite the accused’s hypervigilance and his being “heat conscious” at a time when, based on what he told police on Nov. 28, he was unaware of the attack on Pimenta. Jaggernauth’s decision to stay away from his work, home and vehicle as much as he did, along with turning off his headlights in the alley and taking a late-night walk in the neighbourhood, collectively suggests his deliberate avoidance of the police.
Although other explanations for after-the-fact conduct may exist, the Supreme Court clarified that this does not make the evidence irrelevant (R. v. Calnen, 2019 SCC 6). The evidence was admissible, and it was the trial judge’s role to consider and weigh any alternative explanations.
About the final point that the verdict was unreasonable, the Appeal Court agreed that the case was largely circumstantial. Was it the only reasonable conclusion available on the totality of the evidence, as R. v. Villaroman, 2016 SCC 33 requires?
The Court of Appeal accepted that a verdict will be unreasonable when no properly instructed trier of fact, acting judicially, could have rendered it: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15. When the Crown’s case is circumstantial, a verdict is reasonable if the trier of fact “was entitled to find that the circumstantial evidence in light of human experience, when considered as a whole, and the absence of evidence, could exclude all reasonable inferences other than guilt”: R. v. Anderson, 2020 ONCA 780.
The appeal court found that the cumulative effect of the evidence justified the guilty verdict levied by the trial judge. The appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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