DATE: 20050505

DOCKET: C41014

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOSEPH HARRY GRANT (Appellant)

BEFORE:

MCMURTRY C.J.O., LASKIN and MACPHERSON JJ.A.

COUNSEL:

E. C. John Ecclestone

for the appellant

Jamie C. Klukach

for the respondent

HEARD & RELEASED ORALLY:

May 3, 2005

On appeal from the conviction entered on March 19, 2001 by Justice Paul G. Hermiston of the Superior Court of Justice, sitting alone.

E N D O R S E M E N T

[1] The appellant was convicted of two offences, conspiracy to commit bodily harm and conspiracy to commit aggravated assault, by Hermiston J. on March 19, 2001. The appellant appeals his conviction on two grounds.

[2] First, the appellant submits that Crown counsel failed his disclosure obligation by not informing the defence of an interview with Jeffrey Blakely on the eve of the trial (or perhaps during the trial). The appellant contends that during this interview Crown counsel learned that Blakely would say that the appellant was not involved in any way in the home invasion assaults on the two victims. In support of his submission, the appellant has filed an affidavit from Blakely in which he states:

This entire home invasion and all related matters were orchestrated by Dean Courvoisier and organized by him from start to finish. Joe Grant played no role whatsoever in any of it and had I been called to testify at his trial, that is the evidence which I would have given.

[3] We do not accept the appellant’s submission on this issue. In our view, the fresh evidence tendered by him does not meet two of the criteria set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775.

[4] The defence knew that Blakely was involved in the events giving rise to the criminal charges. The defence also knew that Blakely was in the Barrie courthouse during the appellant’s trial. In short, Blakely’s evidence was available to the appellant at the time of his trial.

[5] In addition, Blakely’s evidence is not credible. It is directly contradicted by an affidavit from Detective Constable Ralph Faiella, who attended the interview with Blakely in the Barrie courthouse: “Jeff Blakely did not, at anytime, give information about the trial or anyone’s role in the case.” Det. Cst. Faiella was not cross‑examined on his affidavit.

[6] Moreover, Blakely was cross‑examined on his affidavit. Crown counsel concluded the cross‑examination with these questions:

Q. I’m going to suggest to you that toward that end [just getting out of the Barrie jail] you simply refused, as you always had throughout, to say anything about these offenses to the police or the Crown?

A. Yes.

Q. And it was suggested over a year later, after you were paroled and recommitted and as you encountered Mr. Grant, as you described to us – and he asked you then to help him out and you agreed to help him because he is your friend?

A. Yes.

These responses make it abundantly clear that Blakely’s potential testimony at the trial in support of the appellant’s position that he was not involved in the home invasion assaults would not be, per Palmer, “reasonably capable of belief”.

[7] Second, the appellant asserts that his conviction amounts to an unreasonable verdict based on the evidence presented. The foundation for this submission is the conflicting evidence among several witnesses about the appellant’s attendance and role at two planning meetings relating to the assaults.

[8] We do not agree. The basis for the trial judge’s conviction was the appellant’s role as “a recruiter and organizer”. There was evidence to support this conclusion, especially the testimony of Simmons and Gibson that they had been recruited by the appellant.

[9] The appeal is dismissed.

“R. Roy McMurtry C.J.O.

“John Laskin J.A.”

“J. C. MacPherson J.A.”