COURT OF APPEAL FOR ONTARIO

DATE: 20011101 DOCKETS: C33450 and C34405

RE:

HER MAJESTY THE QUEEN (Respondent) –and– RALPH LAWRENCE SCOTT and BRIAN MARTINEAU (Appellants)

BEFORE:

FINLAYSON, AUSTIN and SHARPE JJ.A.

COUNSEL:

Irwin Koziebrocki, for the appellant Scott

Peter J. Connelly, for the appellant Martineau

Alexander Hrybinsky, for the respondent

HEARD:

October 23, 2001

RELEASED ORALLY:

October 23, 2001

On appeal from the judgment of Justice Roydon Kealey, sitting with a jury, dated October 22, 1999 and from the sentences imposed by Justice Kealey dated December 10, 1999.

E N D O R S E M E N T

[1] The appellant Martineau submitted fresh evidence to establish that the knife, which at trial was said to belong to Martineau, was in fact the knife of the victim and had been dropped at the scene of the shooting by the victim. The Crown does not oppose the admission of the fresh evidence and acknowledges that the appeal of Martineau should be allowed and Martineau should receive a new trial.

[2] The Crown does not, however, concede that the fresh evidence is admissible vis-à-vis Scott. The Crown submits that the evidence fails to meet the Palmer criteria (R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.)) in that it does not bear on a decisive issue at trial relative to Scott and that it could not reasonably be expected to have affected the result. We do not agree.

[3] The theory of the Crown, which was repeated by the trial judge in his instructions to the jury, was that there was a joint venture between Martineau and Scott from the outset. In fact, they were originally charged jointly with attempted murder but Martineau was discharged on this count after the preliminary hearing.

[4] At trial the Crown led evidence of prior planning between Scott and Martineau: that Martineau was present when Scott telephoned the victim and arranged to meet him to do a fictitious “job”, that they armed themselves and proceeded together to the place where the attempt was made on the victim’s life. They acted in concert at the attempt on the victim’s life. The only difference in their participation was, to use the words of the Crown, “their weapon of choice” – Scott chose a gun and Martineau the knife which is now the subject of the fresh evidence application.

[5] Furthermore, the Palmer test is not to be applied separately to each appellant. The evidence of the knife was admissible at trial and was a piece of evidence that affected both appellants. The fact that the fresh evidence now adduced at this level relates to the true ownership of the knife does not change its status as a piece of evidence affecting both appellants, albeit one more than the other.

[6] In our view, the two appellants are sufficiently bound together by the theory of the Crown that it makes no sense to distinguish between them with respect to ordering a new trial. The Crown conceded that Martineau is entitled to a new trial and, in our view, Scott is as well.

[7] Martineau’s counsel argued that Martineau should not face a new trial on the weapons charges but there is evidence of weapons other than the knife and it is up to the Crown to determine if it wishes to proceed on these charges at the new trial.

[8] Accordingly, the appeals are allowed, the convictions are set aside and a new trial is ordered for both appellants.

Signed: “G.D. Finlayson J.A.”

“Austin J.A.”

“Robert J. Sharpe J.A.”