The Ontario Court of Appeals has ordered a new trial for Jason Maestrello, a former Sudbury man who was found guilty of two first-degree murders in 2010 related to a July 2005 drug deal in Cornwall.
Two marijuana dealers were killed in what court transcripts describe as a “planned drug rip-off.” The dealers were lured to an automotive garage late at night where they expected to buy a large quantity – as much as two tonnes – of pot.
Maestrello was primarily a cocaine dealer, and was friends with a man named Roger Belair, a career criminal and pot dealer in Cornwall. Belair was also friends with another dealer, Andrew Paul. Also present that night in 2005 was Michael Boyle, who had travelled with Maestrello to Cornwall, where they stayed with Belair.
Both Boyle and Maestrello had helped Belair with some earlier drug deals, some of which involved the two murder victims.
“In these transactions, Belair and Paul acted as middlemen between a drug supplier and the deceased,” the transcript says. “However, there had been problems with a couple of these transactions, including one where the deceased did not have enough money to purchase all the marijuana that they had agreed to buy.”
When one of the murder victims approached Belair in early July 2005 looking to buy large amount of pot, he was told Belair no longer had a supplier.
Maestrello “intervened and said he and Boyle could supply the marijuana,” the transcript says. “(Maestrello), Boyle, Belair and Paul subsequently became involved in making arrangements for the transaction.
“Although he could not remember the name of the person with whom he was dealing, Paul claimed he separately agreed to sell a large quantity of marijuana to a 'secondary purchaser' on the understanding the appellant’s and Boyle’s supplier had access to two tonnes of marijuana.”
By mid-July, the four men had scouted an automotive repair shop, under the guise of wanting to rent a bay to do some repair work. They returned at night to ensure the place was empty and to cut a lock on the gate leading into the shop.
Belair, Maestrello and Boyle arrived at the garage at 12:45 a.m. the night of the killings. Belair testified he left them there and returned to his apartment, where he waited with the soon-to-be the murder victims.
He said Maestrello called him at 2:30 a.m. to say the marijuana deal was ready to proceed. So he and the murder victim went to the garage -- but no one was there.
“Then a masked man with a gun appeared and ordered Belair to the ground,” the transcript says. “Belair then heard a couple of gunshots and dove under his car after which he heard one of the (murder victims) say, 'just take it, just take it.'”
At that point, Belair testified he heard more gunshots, and then heard Boyle, who was wearing a mask, say it was safe to come out.
“Boyle and Belair walked over to the deceased who were injured but still alive,” the transcript says. “Belair then saw (Maestrello), who also had a mask pulled up above his face. The appellant (Maestrello) had a shotgun and a handgun.
“Belair said that Boyle gave him the gun he was holding and told him to finish off the deceased or else he would join them. Belair said that he put the gun against one of the deceased’s neck and pulled the trigger. The gun did not go off.”
Maestrello broke the window of the dead man's truck with the butt end of the shotgun, Belair testified, and he and Boyle grabbed the money the two dead dealers brought to pay for the marijuana.
“The appellant then walked over to the two deceased and separately shot each of them at point blank range with the shotgun,” the transcript says. “The appellant and Boyle got into Belair’s car and left the scene. Video surveillance showed Belair’s car travelling away from the repair shop at 3:17 a.m.”
At that point, they met up with Paul, who knew nothing of the murders, Belair said, and was instead expecting to buy marijuana for the second buyer. He testified
Boyle told him earlier he had to kill Paul or Boyle would shoot his family. The three took him to an abandoned farm.
“Once there, Belair said that he walked up behind Paul and shot him in the back of his head,” the transcript says. “Belair and Boyle then left the farmhouse with Paul apparently dead on the ground. In fact, Paul was still alive.”
They disposed of some of the evidence in the St. Lawrence River – two handguns, a shot gun, ammunition, a pair of bolt cutters, a pry bar, a latex glove, two balaclavas, plastic ties, homemade handcuffs, bear spray, a towel, a can of paint, a flashlight and a money counter. They took the clothes they were wearing to Belair's ex-wife's farm to burn them.
Paul, thought to be dead, survived and ID'd Belair as the person who tried to kill him. Belair was arrested July 21, 2005, and quickly led police to the items dumped in the St. Lawrence.
“By this time, the appellant (Maestrello) and Boyle had returned to Sudbury,” the transcript says. “Belair told the police that the appellant had shot Paul, even though he knew that Paul was alive and thus able to tell the police that the appellant had not been there when he was shot.”
Maestrello and Boyle were arrested Aug. 18, 2005, in Sudbury and charged with the murders. Belair made a plea deal in which he admitted to trying to kill Paul, in exchange for a sentence of no more than 2 ½ years. In exchange, Belair agreed to testify against Maestrello and Boyle.
Maestrello's trial began in May 2010 and he was found guilty on July 8 of that year. It was a complicated trial, the transcript says, with more than 100 witnesses called over two months.
“That said, the trial largely rested on the evidence of Belair and, to a lesser extent, Paul, who had been directly involved in the events,” the transcript says. “Belair had a significant criminal record, including a prior conviction for aggravated assault. He was a known drug dealer. Paul had an extensive criminal record, including prior convictions for assault. Paul also had issues with alcohol and drugs.”
The trial judge told the jury the only question they had to decide on was whether Maestrello had committed the murders.
In granting the appeal, the appeals court ruled the trial judge made several errors. One of the witnesses who had backed Belair's version of events was his ex-wife who admitted to still being “infatuated” with him, and had changed her story to support Belair's version of events.
However, the trial judge didn't warn the jury that her testimony could be unreliable, because he ruled her testimony wasn't “central” to the Crown's case.
But both the Crown and the defence lawyer believed the ex-wife's testimony was important, the appeals court ruled.
She “was an important witness who, given her changing story and her personal connection to Belair, required some attention by the trial judge in his review of the evidence,” the transcript says. “The trial judge ought to have specifically mentioned her evidence and pointed out some of the factors that the jury would want to take into account in assessing her evidence.”
While he did give the jury warnings about Paul and Belair's evidence, the appeals court ruled he didn't explain thoroughly why the jury should be cautious – for example, that Paul could have been present for the murders, since his blood was found on the truck where the drug money was located.
He also mentioned that cellphone records seemed to confirm Belair's version of events, without explaining that same evidence could be used to disprove his testimony.
“As the appellant points out, some of the cellphone evidence could actually be seen as contradicting both Belair and Paul,” the transcript says. “Similarly ... the trip to burn the clothes implicated Belair as much as it did the appellant.”
The judge also instructed the jury that Maestrello's actions after the murder implied he was guilty, without also telling them Belair's actions could be viewed in the same light.
“At the very least, the trial judge ought to have cautioned the jury that, in considering the evidence of post-offence conduct, they had to consider that it pointed equally to Belair being the perpetrator of the murders,” the transcript says.
There was evidence the jury was confused about what evidence should be given more weight, and the definitions of terms like “aiding and abetting” in the context of the charges. Instead of clarifying, the trial judge simply repeated his original instructions.
That was a mistake, the appeals court ruled.
“Indeed, the fact that the jury has a question relating to a portion of the original instructions is likely a good indicator that there may be a problem with the way those original instructions were worded, or how they should apply them to the evidence that they have heard,” the transcript says.
By not clarifying his instructions, the trial effectively made the jury's confusion worse. It's possible they decided to convict Maestrello using “backwards reasoning,” in part because he helped get rid of the evidence after the murders, something Belair was an active participant in, as well.
“Given the seriousness of these errors, and their cumulative effect, along with the very real possibility of backwards reasoning that I have identified, the verdicts cannot stand,” the transcript says. “The verdicts must be set aside and a new trial ordered.”
The court granted a new trial without considering fresh evidence. After Boyle, Maestrello's friend, pled guilty to two counts of manslaughter and one of attempted murder, he told his parole officer Maestrello wasn't present when the murders took place.
“Rather, it was Belair and Paul who had committed the murders,” the transcript says. “Further, Boyle said that it was Belair who had shot Paul in the head in order to silence him.”
Boyle said Maestrello knew what was happening that night, but his role was limited to driving and calling Belair at the key time.
While not indisputable evidence that Maestrello is innocent, it will make it harder for the Crown to get a first-degree murder conviction, the appeals court said, especially with the passage of 14 years since the crimes.
“This lapse of time will undoubtedly make the re-prosecution of the appellant a difficult one for the Crown. It is also unacceptable, the responsibility for which lies with both sides. The passage of an inordinate amount of time harms everyone involved in a criminal prosecution.”