WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Newmarket 12-2982 Date: 2013-04-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — James Robert Martineau, Wendy Marie Martineau, Rian Patrick McLean

Before: Justice Joseph F. Kenkel

Ruling on Committal: April 17, 2013

Counsel:

• Ms. Michal Fairburn for the Crown
• Mr. John McCulligh for the accused James Martineau
• Mr. Alan Buchanan for the accused Wendy Martineau
• Mr. Sanjiv Passi for the accused Rian McLean

KENKEL J.:

Introduction

[1] Mr. James Martineau is charged with First Degree Murder contrary to s. 235(1) of the Criminal Code. His mother Wendy Martineau and his friend Rian McLean are charged with being accessories after the fact to murder contrary to s. 240.

[2] Mr. Martineau concedes that the evidence reasonably supports his committal on a charge of Second Degree Murder but submits there is no evidence upon which a properly instructed trier of fact could reasonably find him guilty of First Degree Murder.

[3] Ms. Wendy Martineau concedes that the Crown has proved there's evidence upon which a properly instructed trier of fact could reasonably conclude that James Martineau committed murder and that she knew he had committed that murder. The defence submits that the Crown has not shown evidence that Ms. Martineau assisted her son in relation to that murder with the intent to help him escape criminal liability.

[4] Mr. McLean concedes committal.

James Martineau

[5] The murder of Ivan Davison was gruesome. The 78 year old was subjected to horrific acts of torture including:

• Multiple blunt force injuries to his scalp, face, mouth, torso and limbs
• Neck compression to the point where there were fractures in his larynx and multiple haemorrhages
• Cut wounds to the face, right wrist and abdomen
• Stab wound to his chest
• One of his fingers was cut off
• Heat was applied to his face causing a second degree burn likely from an open flame
• Bruises about the eyes
• Bruising about the mouth around and inside the mouth area
• Slash cut wounds to the top of his head
• Paired puncture wounds to his chest
• Massive injury to the chest fracturing almost all of his ribs and severing the aorta which quickly caused death
• Further cuts to the feet after death occurred

[6] As the defence concedes, the Crown has shown that the accused's admissions and the rest of the evidence in this hearing support committal for trial on a charge of murder.

[7] Section 231(2) classifies murder as first degree murder where the Crown proves that the murder was planned and deliberate. Section 231(5)(e) classifies murder as first degree murder where the death is caused while that person is committing the offence of forcible confinement.

Forcible Confinement

[8] The Pathologist Dr. Pollanen testified that while the injuries to Mr. Davison would have been painful they were not life threatening until the final massive injury to his chest. The number of the injuries, the many types of injuries, their different locations and the effects of those injuries all as described by Dr. Pollanen could reasonably lead a trier of fact to infer that the injuries were inflicted over a "significant period of time" as described in R. v. Pritchard 2008 SCC 59. From the painful but non-lethal nature of the injuries prior to the final massive crushing of the chest, it would be reasonable for a trier of fact to infer that Mr. Davison was confined for a significant time as a distinct act before the final massive assault to his chest that caused his death.

[9] Mr. Davison's body was found with a strap tied around his ankles. The pathologist was not able to determine whether this ligature was applied before or after death. Nonetheless in the context of all of the evidence a trier of fact might reasonably find that the presence of a ligature on the deceased's ankles is consistent with confinement at the time leading up to the killing.

[10] Bank records, cellphone records and bank video show that Mr. Martineau and Mr. McLean went to Mr. Davison's bank with Mr. Davison's bank card and health card in hand the night of the murder. Mr. Martineau tried several times unsuccessfully to access Mr. Davison's account using several PIN numbers.

[11] The two men left the bank but Mr. Martineau returned later by himself and again attempted to access the ATM using Mr. Davison's card. The bank video shows Mr. Martineau on the phone speaking to another person for an extended time while at the bank making 5 further unsuccessful attempts to access Mr. Davison's account.

[12] Considering the torture of Mr. Davison prior to his death and the bank evidence showing his killer attempted to access his account, failed, then re-attended presumably with new information, it would be logical and reasonable for a trier of fact to infer that the numerous injuries inflicted upon Mr. Davison prior to his death were part of an effort to force him to reveal his bank PIN number. The timing of the bank visits show confinement in that context for a significant time within the meaning of Pritchard.

Planning and Deliberation

[13] One witness testified that Mr. Martineau stated that he was "going to kill that old guy one of these days" in circumstances where the witness understood the comment to refer to Mr. Davison. Upon refreshing his memory as to dates, the witness testified that the statement was made in December of 2011, the month that Mr. Davison was killed.

[14] I agree with the Crown that a trier of fact could reasonably infer that the statement in context must have referred to Mr. Davison.

[15] I agree with the defence submission that there are numerous issues with that evidence and the defence may well be right that a trier of fact would be very unlikely to give that statement sufficient weight to prove planning and deliberation on that basis. However, considering that evidence of animus in the context of all of the evidence including the torture of the deceased prior to his death and the final infliction of massive injury certain to cause death I must find that there is some evidence upon which a properly instructed trier of fact could reasonably find that the murder of Mr. Davison was planned and deliberate.

Wendy Martineau

[16] Direct and circumstantial evidence shows that Ms. Martineau arrived home after the murder had occurred but before the clean-up was complete. There was blood on the floor or "blood everywhere" as she told Ms. Rafter.

[17] Ms. Martineau's daughter testified that when she entered the apartment with her mother there was blood on the floor of one room other evidence linked to Mr. Davison. She also saw a butcher knife on the floor. Her brother was wearing blue rubber gloves. There was a large recycling bin inside the apartment. Mr. Martineau would not let his mother look inside that bin.

[18] It would be reasonable to infer from the direct evidence of Ms. Knockwood, the circumstantial evidence and the evidence of nearby neighbours that Mr. Davison's body was still inside the apartment at the time Ms. Martineau arrived home and that the clean-up from the murder was not complete.

[19] Police did not find the butcher knife with Mr. Davison's blood on it on the floor where Ms. Knockwood had seen it when she and her mother arrived. It was discovered in Ms. Martineau's room under a cushion of a seat.

[20] Ms. Rafter testified that Wendy Martineau told her that she found the deceased's finger amongst his belongings in the apartment and she got rid of it.

[21] A trail of circumstantial evidence including cellphone records reasonably shows the time when Mr. Martineau and Mr. McLean travelled to Caledon to dump Mr. Davison's body by the roadside. Upon his return to the Brampton area at 4:02 a.m. Mr. Martineau's first recorded communication was a text to his mother's cellphone.

[22] I agree with the defence that there may be frailties with respect to Ms. Rafter's evidence, but it's not the function of a judge presiding at a preliminary hearing to weigh the quality of her testimony.

[23] Considering all of the evidence including the testimony and circumstances referred to above I find that the Crown has proved there is evidence upon which a trier of fact might reasonably infer that Ms. Martineau knew that her son had murdered Mr. Davison and that she assisted him in the clean-up of the murder scene by the disposal of evidence in order to assist her son to escape liability contrary to s. 240.

Conclusion

[24] Mr. James Martineau will be committed to stand trial on a charge of First Degree Murder. Ms. Wendy Martineau and Mr. Rian McLean will be committed to stand trial on charges of being Accessories after the fact to murder.

Released: April 17, 2013

Justice Joseph F. Kenkel