COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2013 ONCA 210

DATE: 20130403

DOCKET: C52253

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Etienne Martin

Appellant

Peter Copeland and Erin Dann, for the appellant

Roger A. Pinnock, for the respondent

Heard: March 13, 2013

On appeal from the conviction entered on April 8, 2008 by Justice O’Connor of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

[1] On April 8, 2008 the appellant was convicted of the second degree murder of Lamar Philip. He appeals to this court.

[2] Lamar Philip was stabbed to death in the stairwell of an apartment building in Mississauga on July 13, 2005. In early August 2005, the appellant and Lionel Brown were arrested and charged with Philip’s murder. The question was which of them did the stabbing? The Crown’s theory was that the appellant and Brown hatched a plot to rob Philip by luring him into the stairwell under the pretext of doing a drug deal but that the appellant inflicted the fatal wound.

[3] Brown pleaded guilty to manslaughter and was an important Crown witness at the appellant’s trial. Brown testified that the appellant, who was armed with a knife, accompanied him to the stairwell. Brown said that while he was engaged in the drug transaction with Philip, Philip and the appellant got into a struggle, at which point the stabbing took place. Brown testified that the appellant later told him that he stabbed Philip because Philip pulled down his bandana mask thus revealing his face.

[4] Christopher Spencer was a second important witness for the Crown. Spencer provided a statement to the police which at least in part implicated the appellant in the stabbing. In his statement, Spencer said that prior to being arrested, Brown told him essentially what Brown told the court in his testimony. At trial, Spencer recanted, saying his statement to the police was a lie. As a result, Spencer’s police statement was admitted for the truth of its contents.

[5] The Crown’s case also relied on the appellant’s conduct after the stabbing. There was evidence that Brown and the appellant fled the apartment building to a nearby tennis club, called the taxi, went to Brown’s house and then took another cab to the appellant’s home where he changed his bloodied shirt. In addition, the appellant’s own evidence was that he did not call 911 afterwards, that he had lied to his brother about the killing, and that he told no one the version of events that he testified to at trial.

[6] The appellant also testified about the stabbing. He said that he merely accompanied Brown to the stairwell, that it was Brown who had a knife, and that it was Brown who threatened Philip. When Philip resisted, Brown stabbed him and then fled with the appellant.

[7] In this court, the appellant challenges a number of aspects of the trial judge’s instructions to the jury. I propose to deal with only two of them because, in an otherwise impeccable charge, both constitute legal errors that, taken together, require a new trial.

[8] The first concerns Spencer’s police statement, and in particular that part in which Spencer related his conversation with Brown that took place a few weeks after the incident. Spencer said Brown told him that he did not do the killing but only wanted to rob Philip. Brown told Spencer that when Philip refused to cooperate, the appellant got into a struggle with Philip. When Philip pulled down his bandana mask, the appellant stabbed him, apparently because Philip had seen his face.

[9] When the Crown sought to tender Spencer’s police statement, the defence objected to the hearsay part of it. The trial judge expressed the same concern. The trial judge described this hearsay as “very strong evidence”, undoubtedly because it supported Brown’s testimony which was central to the Crown’s case.

[10] Ultimately, Spencer’s statement, including the hearsay, was admitted. In admitting the statement, the trial judge made clear to counsel that the hearsay portion of the statement should not be used for the truth of its contents, and that he would give the jury a limiting instruction to this effect as part of his charge.

[11] Unfortunately, he did not do so. He did give the jury a short general instruction that they could not use a hearsay statement to prove the truth of its contents. However, when he dealt specifically with Spencer’s police statement, the trial judge clearly told the jury that they could use the full statement as evidence of what happened. Shortly thereafter he again charged them they could use Spencer’s police statement for the truth of its contents. On neither occasion did he exclude from this instruction what Spencer said Brown told him about the stabbing. Given the centrality to the Crown’s case of Brown’s version of events, the failure to provide a limiting charge on the hearsay portion of Spencer’s statement is an important error of law.

[12] The second issue is the instruction concerning the evidence of the appellant’s conduct after the stabbing. While the trial judge does not say so explicitly, I think it is implicit in the structure of his charge that much of what he told the jury about the use they could make of this evidence relates to the question of whether the appellant caused the death of Philip, that is to the actus reus of the offence.

[13] However, in dealing with the appellant’s state of mind, the trial judge clearly told the jury that they could consider evidence of his post-offence conduct. On the facts of this case, that was an error of law, as the Crown acknowledged in argument. Assuming the appellant inflicted the fatal wound, his after-the-fact conduct could not assist the jury in determining whether he did so with the intention required for murder or manslaughter. See R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 40. This too is an important error of law.

[14] In summary, although the charge was otherwise beyond criticism, I conclude that the cumulative effect of these two errors is sufficient to require a new trial.

[15] The appeal must be allowed. The conviction is set aside and a new trial ordered.

Released: April 3, 2013 (“S.T.G.”)

“S.T. Goudge J.A.”

“I agree. Janet Simmons J.A.”

“I agree. M. Tulloch J.A.”