Court denies appeals of two men convicted of 2014 murder

Jordan Herron being led away from court following sentencing. Arthur White-Crummey/Daily Herald

The two men convicted of murdering a Prince Albert teen had their appeals denied in December.

The decision of the Court of Appeal, dated December 18, was posted to the Canadian Legal Information Institute (CanLII) website Tuesday.

In the unanimous decision, written by Madame Justice Georgina Jackson of the Court of Appeal, each of the arguments presented by Jordan Herron and Orren Johnson were rejected and the conviction upheld.

After a February 2017 trial, Herron and Johnson were found guilty of killing Clayton Bear in an East Hill home back in 2014. The 17-year-old died of a gunshot wound through his liver. The trial hinged on the credibility of eyewitness accounts, with the defence arguing that everyone in the home was too intoxicated to remember what happened.

Ultimately, Herron was convicted of second-degree murder, Johnson of first-degree murder. Justice J.D. Kalmakoff sentenced both to life. Johnson cannot seek parole for 25 years, while Herron has 11 years of ineligibility.

Herron was originally represented by Mary McAuley. But after McAuley was appointed a provincial court judge, Brian Pfefferle took over his case.

Herron’s legal team argued that the witnesses who put him at the crime scene were “unreliable” and that there was a lack of evidence before the jury to support their conclusion that he could be convicted of second-degree murder for aiding or abetting the offence. His presence at the time of the shooting alone would be “insufficient to establish that he provided assistance or encouragement to Mr. Johnson in the commission of the offence,” his lawyers wrote.

They also argued that the evidence presented to the jury regarding his knowledge of the crime and intent was circumstantial and that the verdict of second-degree murder was unreasonable.

The legal team also raised an issue that almost derailed the trial. In closing arguments, Johnson’s lawyer compared her client to David Milgaard, perhaps Canada’s most famous case of wrongful imprisonment. McAuley said that was “highly prejudicial” to Herron, and called for a mistrial. Kalmakoff refused and instead offered a corrective instruction to the jury.

For Herron’s team, that wasn’t sufficient. They claimed that Kalmakoff “erred” when he sent the case to the jury.

Johnson filed his appeal in April 2017. His new lawyer, Edmonton-based Harold Brubaker, argued that the jury’s verdicts against the two men were “unreasonable and inconsistent.” 

He argued that the evidence was the same against the two men and that the Crown’s case of premeditated murder was “entirely circumstantial” as there wee nao witnesses to the shooting itself.

According to the written decision to deny the appeal, he submits there was no “extra” evidence against him from which the jury could conclude planning and deliberation on his part and not on the part of Mr. Herron. Second, he submits that it was unreasonable for the jury to conclude that Mr. Herron was aware of Mr. Johnson’s intention to kill Mr. Bear but not that Mr. Johnson had planned and deliberated to do so.

The Court of Appeal rejected each of the arguments.

They found that while the witnesses were intoxicated at the time of the killing and that they were inconsistent, they credited the trial judge for giving a warning and instruction to the jury in regards to how to deal with inconsistent testimony,

“It is not for the jury or an appellate court to account for every detail that does not fit with one narrative. The issue is whether there is evidence that can reasonably support each essential fact that the jury was required to find in order to arrive at a reasonable verdict,” Jackson wrote. The Court of Appeal found that there was.

They also found that the trial judge gave the jurors appropriate instructions regarding what it takes for someone to be aiding and abetting a crime, and not just merely there when one happens.

“The jury could reasonably conclude that Mr. Herron was not merely present at the 27th St. House. It would have been open to the jury to have found Mr. Herron had been present there earlier that night with a man who had a gun that had been used to shoot at a house with people in it,” Jackson wrote. 

“He returned to that house with a man who had a gun – who the jury must be taken to have found to be Mr. Johnson. With Mr. Johnson and another, Mr. Herron forcefully entered the house, stayed briefly and left rapidly with that same group – after a shot had been fired. On the basis of this evidence, the jury could reasonably conclude that Mr. Herron knew that Mr. Johnson intended to commit an offence. 

Jackson also found that despite Herron’s lawyers arguing the case was wholly circumstantial, that there was enough collective evidence for the jury to have found “hat the only reasonable conclusion was Mr. Herron knew and intended his conduct would have the effect of aiding Mr. Johnson in the commission of the offence of causing grievous bodily harm or murder. 

When it comes to the comments about David Milgaard, the Court agreed with the Crown, that Herron’s argument on appeal “lacks merit.

“I fail to see how Mr. Herron was prejudiced by an address that was intended to benefit Mr. Johnson, but in effect, could also be seen as benefiting Mr. Herron,” Jackson wrote. 

“In the concrete reality of this case, the jury convicted Mr. Johnson of first-degree murder and Mr. Herron of second-degree murder … An appropriate correcting instruction, which was accepted by Mr. Herron’s counsel, was given.”

Then, Jackson turned to the appeal filed by Johnson’s lawyer.

She argued that there was evidence against Johnson that was “significantly stronger” than that against Herron, depending on which witness testimony the jury accepted.

She wrote that the finding that Johnson had planned the act and deliberately shot bear is “supportable and reasonable on the evidence.”

Jackson then turned to the other argument. She described it as “an attack on the unreasonableness of Mr. Herron’s acquittal of first-degree murder.

“In such circumstances, the law is clear that this is no basis upon which an appellate court can set aside a reasonable conviction. … there is more than one way the jury could have found two different verdicts. The jury could have found Mr. Herron committed the unlawful act of murder by aiding Mr. Johnson – I have assessed the verdict against Mr. Herron on that basis. However, as the Crown urged upon this Court, it is also possible the jury had a reasonable doubt about whether Mr. Herron had the requisite (intent) for premeditated murder – which would make him a co-principal to the act of murder and guilty of second-degree murder on that footing. 

“This Court, however, need not decide which pathway the jury took – indeed, it would be impossible to know for certain in any event. It is sufficient to conclude that there is a basis upon which this properly instructed jury could convict Mr. Johnson of first-degree murder and Mr. Herron of second-degree murder. “