DATE: 20060209

DOCKET: C36187

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– MARTIN PINKUS (Appellant)

BEFORE:

LASKIN, ARMSTRONG AND MACFARLAND JJ.A.

COUNSEL:

Vincenzo Rondinelli

for the appellant

Howard Leibovich

for the respondent

HEARD & ENDORSED:

February 7, 2006

On appeal from the conviction entered on November 7, 1999 and the sentence imposed on December 20, 1999 by Justice Colin MacKinnon of the Superior Court of Justice made at Ottawa, Ontario.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant argued two grounds of appeal against conviction and the imposition of a twenty-year period of parole ineligibility.

[2] On the Corbett application, we are of the view that the trial judge’s exercise of discretion reflected no reviewable error. As Dickson C.J.O. was concerned in Corbett, so too was the trial judge concerned about leaving the jury with a distorted picture of the criminal records of the Crown witnesses and the appellant. We therefore decline to give effect to this ground of appeal.

[3] The appellant does not object to the admissibility of the previous consistent statements. He contends, however, that the trial judge erred by failing to instruct the jury on the use of these statements. Even accepting that the trial judge should have given the instruction sought by the appellant, his failure to do so caused no substantial wrong. This was an overwhelming case against the appellant and therefore if it is necessary we apply the proviso.

[4] On parole ineligibility, we see no error in twenty years. This was an entirely unnecessary and unprovoked shooting of a defenceless young man who had nothing to do with the gas station robbery. The appellant had a record for serious crimes of violence at the time of the shooting. He was on parole for his conviction for manslaughter. Nothing can be said in mitigation.

[5] The conviction and sentence appeal are therefore dismissed.