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| John L. Hill |
Police charged a 17-year-old, who cannot be named, with first-degree murder. In early May, Chizanga turned himself in and was also charged with first-degree murder. Later in May, Meredith surrendered and was charged with the same offence.
The two adult accused were tried by a jury in Brampton in 2019. Both were found guilty of second-degree murder in mid-October; the youth was convicted of manslaughter in a separate trial. Planning and deliberation were not proven beyond a reasonable doubt. Neither accused had testified at trial. The Crown had alleged the killing was related to illicit drug activity.
Neither man seemed concerned with the preponderance of video surveillance cameras that recorded their entrance to a washroom moments before McIntosh was shot. Because of the pandemic, sentencing was delayed. The adult men came back before Justice David E. Harris, who described the killing as a “slaughter” and imposed life sentences and parole ineligibility of 16 years for Meredith and 12 years for Chizanga (R. v. Chizanga, 2020 ONSC 4647).
Chizanga and Meredith unsuccessfully appealed their convictions and sentences (R. v. Chizanga, 2024 ONCA 545). The appeal court decision is lengthy and well-reasoned. Two significant and somewhat unusual aspects of the decision deserve comment: the allowance of a video showing discreditable conduct and what might be perceived as political commentary from the trial judge.
A significant ground of appeal required the court to determine if a video made before the killing ought to have been admitted as evidence at trial. The defence objected to a video that showed the appellants and the third party at a motel room the day before the McIntosh shooting with Chizanga knocking on the door while Meredith, armed with an assault-type firearm, and the other man standing on each side. No one answered the door, and the men left.
It proved nothing defence maintained. But it did depict prior discreditable conduct.
The appeal court was forced to determine the probative value of this video in the context of what transpired the next day. The court relied on R. v. Handy, 2002 SCC 56, to assist this analysis. In that case, the Supreme Court held that evidence of prior discreditable conduct is presumptively inadmissible because it could show “bad character” and undermine the presumption of innocence. However, the appeal court noted (Justice Katherine van Rensburg dissenting on this issue) that the evidence can be admissible if the potential prejudicial effect can be overwhelmed by the evidence’s probative value. Probative value becomes more cogent where there is a close connection or “nexus” between the prior discreditable conduct and the live conduct, in this case, McIntosh’s murder.
The challenged evidence need not prove, or even on the balance of probabilities, that the motel room video and the murder are related. It is sufficient that it makes it more or less likely that the live conduct occurred (Handy and R. v. Luciano, 2011 ONCA 89).
The Court of Appeal found the nexus and gave deference to the trial judge in his charge to the jury and in sentencing. It stated, “In our view, the trial judge’s finding that the Video showed Mr. Meredith engaged in conduct closely related to the killing of Mr. McIntosh is entitled to deference. Given that the Video depicted events within 24 hours of the killing, involving the same parties and the same weapon, this finding was open to the trial judge, and we see no basis to interfere with this determination.”
During sentencing, the trial judge referred to the case as a “poster child for the evil of military assault-type weapons.” He noted that the sentencing took place on the 30th anniversary of the École Polytechnique massacre in Montreal, which was also carried out with a semi-automatic military-style long firearm.
The trial judge proceeded to express his opinion on the need for greater firearm regulation, saying, “[f]rom the perspective of our criminal law and our communities, firearm control and regulation is imperative to reduce the carnage. In Canada, we do not have the obstacle posed in the United States by the interpretation of the Second Amendment by the United States Supreme [Court] in District of Columbia et al. v. Heller, 554 U.S. 570 (2008).”
The defence contended that this political statement was an unjust aggravating factor. The Appeal Court disagreed. It said, “In our view, the trial judge’s comments on gun violence did not constitute an error in principle or result in an unfit sentence. The aggravating aspects of the gun violence in the trial judge’s reasons relate directly to the conduct of Mr. Meredith and Mr. Chizanga and their moral culpability for the brazen and public nature of the killing of Mr. McIntosh. There is no basis in these comments to conclude that the trial judge was attempting to punish Mr. Meredith merely because of the prevalence of gun violence in society generally.”
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. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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