CITATION: R. v. McNeil, 2007 ONCA 646

DATE: 20070921

DOCKET: C43448 M33090

COURT OF APPEAL FOR ONTARIO

FELDMAN, SIMMONS and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

LAWRENCE McNEIL

Appellant

Marc E. Schiffer for Lawrence McNeil

Rick Visca for the Attorney General of Canada

Heard: In Writing

E N D O R S E M E N T

[1] The appellant and respondent have now agreed that the appellant’s application to admit fresh evidence on the appeal should be allowed. Furthermore, because the fresh evidence could reasonably have affected the verdict, the respondent concedes that the appeal should be allowed, the convictions set aside and a new trial ordered.

[2] In accordance with the endorsement of Feldman J.A. following a conference call on May 2, 2007, the parties submitted the police services charges, the information, the affidavit of Wanda Warren dated May 29, 2007 and the transcript of the guilty plea proceedings of former police Constable Hackett dated February 9, 2007, together with factums and books of authorities. The panel has now considered the material.

[3] We agree that the proposed fresh evidence meets the Palmer test and should be admitted on the appeal. We also agree that the proposed fresh evidence could well have affected the verdict, not only because it would have affected the trial judge’s assessment of the arresting officer’s credibility but also his assessment of the officer’s motive for approaching the appellant. As was already noted by Simmons J.A. in the original decision on this motion regarding disclosure of documents (R. v. McNeil, 2006 40087 (ON CA), [2006] O.J. No. 4746), because of Constable Hackett’s cocaine habit, “there is a reasonable possibility that evidence of the underlying misconduct would be admissible to support an inference that the arresting officer had an ulterior motive for approaching the appellant.” (para. 64).

Result

[4] The motion to admit fresh evidence is granted and the list of Police Services charges, the information, the affidavit of Wanda Warren dated May 29, 2007 and the transcript of the guilty plea proceedings of Rodney Hackett dated February 9, 2007 are admitted as fresh evidence on the appeal. Based on the fresh evidence, as well as the submissions of the parties, the appeal is allowed, the convictions are set aside and a new trial is ordered.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“R. A. Blair J.A.”