Man planned to kill ex, not her uncle, appeal court says in changing conviction

TORONTO — Ontario’s top court says a Toronto man who planned to kill his estranged wife but ended up killing her uncle instead should not be convicted of first-degree murder because the uncle was not the plot’s intended target.

In a decision released this week, the Court of Appeal for Ontario says that while jurors found Willy Ching intended to kill his ex’s uncle in the moment, there was no planning and deliberation involved in that slaying.

Meanwhile, the person he did plan to kill — his former spouse — was unharmed, which means the death of her uncle cannot be considered to have occurred as part of that plan, the court said.

As a result, the court says Ching’s conviction for first-degree murder should be quashed and replaced with one for seconddegree murder, which does not involve advance planning.

Court heard Ching bought a hatchet and knife and was trying to get into the home where his estranged wife, Maria Ching, was staying, but her uncle intervened and was fatally wounded in the struggle.

The appeal court says the trial judge erred in telling jurors they could find Willy Ching guilty of first-degree murder if they found he planned to kill his former spouse and killed her uncle, Ernesto Agsaulio, in the process of carrying out that plan. His plan was, in fact, not carried out, it said.

The court said the trial judge misapplied of a ruling by the Supreme Court of Canada in a case involving a man who accidentally killed his children while trying to kill his spouse.

“The jury found that the appellant intended to kill Mr. Agsaulio ... The planning and deliberation, however, was in respect of a different intended killing, the killing of Ms. Ching,” the appeal court wrote in its decision, noting jurors were not asked to consider whether the uncle’s murder was planned and deliberate.

“The plan to kill Ms. Ching never reached the point where the appellant executed the killing. Ms. Ching remained on the second floor of the house well beyond the reach of the appellant. One will never know whether, had the appellant been allowed into the house, he would have carried out his plan,” it said.

“There is a sound policy reason for concluding that an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target will be convicted of first-degree murder,” it said.

“This result reflects the fact that in the first case the actual killing may well have been impulsive while in the second, it was the result of a planned and deliberate act.”

However, the court rejected arguments that the trial judge had erred in his instructions to jurors regarding Ching’s attempt to jump over a staircase railing upon learning Agsaulio had died, and those regarding Ching’s conflicting statements in his testimony and police interviews.

Court heard the couple’s marriage fell apart in 2009 and that September, Maria Ching moved out of their shared home to go live with Agsaulio and his family in nearby Mississauga, Ont.

Willy Ching did not accept that the marriage was ending and repeatedly tried to speak to his former spouse, the decision said.