R. v. Martineau, 2015 ONSC 2572

CITATION: R. v. Martineau, 2015 ONSC 2572

NEWMARKET COURT FILE NO.: 12-00002982

DATE: 20150424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Crown/Respondent

– and –

James Martineau Defence/Applicant

Peter Westgate and Gemma Sang, for the Crown/Respondent

Corbin Cawkell and Aliki Yorgiadis, for the Defence/Applicant

HEARD: April 8, 9, 10, 2015

Ruling on Third Party Suspect Defence

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

gILMORE J.:

OVERVIEW

[1] This is a defence application to allow evidence of a third party suspect defence in the trial of James Martineau, who is charged with the murder of Ivan Davison.

[2] The Crown submits that the murder of Mr. Davison was planned and deliberate and took place in course of a forcible confinement. Their theory of the case is that Mr. Martineau loathed his roommate Mr. Davison. He found him repulsive and became so irritated with his behaviour that he decided to get rid of him. Believing that Mr. Davison deserved to die, Mr. Martineau inflicted numerous painful injuries on Mr. Davison over a period of time before stomping on his chest so hard that Mr. Davison died of a transected aorta. Mr. Martineau then stored the body in a recycling bin, transferred it into a borrowed car, then he and his friend, Rian McLean, dumped Mr. Davison’s body into a ditch near the Caledon-King Town Line.

[3] The defence theory is that Mr. Martineau was seen prior to and after Mr. Davison’s death with his close friend and co-accused, Rian McLean, and that Mr. McLean had the same opportunity as Mr. Martineau to commit the murder of Mr. Davison. As evidence of motive and opportunity exists, the theory of an alternate suspect has an air of reality and the defence must therefore be put to the jury for consideration.

[4] In August 2013, Mr. McLean pleaded guilty to being an Accessory After the Fact to Murder. He is serving a six and a half year sentence and was in custody at the time of giving evidence in this matter on April 8, 2015.

[5] The Crown’s position on the application is that the evidence of a third party suspect is insufficient to meet the air of reality test. Although there may be evidence of opportunity to participate in the murder on the part of Mr. McLean, there is no evidence that anyone other than Mr. Martineau was in the apartment when the murder occurred. Further, putting this defence to the jury may well confuse and distract them from the real issues in the case.

[6] Mr. McLean was called as a witness by the Crown on the voir dire. The defence objected on the grounds that there were already transcripts from two previous statements given by Mr. McLean and that there was sufficient evidence of opportunity at this threshold stage that it was unnecessary to call Mr. McLean as a witness.

[7] A ruling was made permitting Mr. McLean to testify. The reasons given in the ruling were that the court was not determining the ultimate reliability of Mr. McLean’s testimony, as that would be for the jury. Further, the court, on this type of voir dire, must assess whether the evidence is reasonably capable of supporting the inferences the accused is asking the jury to draw. In order to make this assessment, the court held that hearing from Mr. McLean could be helpful.

APPLICABLE LEGAL PRINCIPLES – THIRD PARTY SUSPECT

[8] In order for the defence to adduce admissible evidence of a third party suspect, there must be a nexus between the third party and the offences. The connection may be made inferentially but not through conjecture or speculation. Further, the evidence must “meet the test of relevancy and must have sufficient probative value to justify its reception.”[^1]

[9] The Crown submits that in addition to the nexus mentioned above, the defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit (as per Grandinetti[^2]).

[10] The defence does not agree. The defence position is that even if Mr. Martineau is convicted as a party, this could open the door to second degree murder or manslaughter with an acquittal on the first degree murder charge. Where the potential penalty is life imprisonment, there is too much at stake to ignore these possibilities.

[11] In addition to sufficient evidence to support a nexus between the third party and the offences, there must be an air of reality to any defence that is considered by a jury. The reason for this is best explained in R. v. Cinous[^3]:

The whole edifice of the air of reality analysis is built upon the premise that putting outlandish defences to the jury would be confusing and would invite unreasonable verdicts. This is the practical basis for the trial judge’s duty to keep from the jury defences that are fanciful or far-fetched in relation to the evidence adduced at trial.

Inviting the jury to solemnly consider that which is plainly unworthy of solemn consideration would in effect be to mislead the jury.

[12] The air of reality test also prohibits mere speculation or fishing expeditions for possible suspects. As per McKinnon, J. in R. v. Tehrankari[^4]:

The defence is not permitted to merely speculate or engage in a fishing expedition for other possible perpetrators. The evidence it wishes to advance must be relevant, probative and its value must outweigh its costs, in terms of the time it takes to explore it, the distractions to the central issues it may engender and the extent to which it might reasonably assist the jury in reaching a just verdict.

In weighing probative value against prejudicial effect, the trial judge must ask whether the proffered evidence would prolong the proceedings, confuse the issues, distract the jury and lead to conjecture and speculation.

[13] In the context of this voir dire, the court is not permitted to draw inferences, make findings of fact or weigh evidence other than in the limited sense of determining whether the evidence is sufficient to support the inferences the jury would be asked to draw by the accused. The gatekeeping role of the court was recently described in R. v. Grant[^5]:

…the trial judge engages in a limited weighing of the evidence to ensure that the jury only considers evidence (1) that is relevant to a fact in issue, including an available defence; and (2) whose probative value is not substantially outweighed by its prejudicial effect.

The air of reality test requires the trial judge taking the proposed evidence at its greatest strength, to determine whether the record would contain a sufficient factual foundation for a properly instructed jury to give effect to the defence.

APPLICATION OF THE LEGAL PRINCIPLES TO THE CASE

[14] It is important to assess whether the appropriate nexus between the third party and the crime exists in order to determine whether the defence has the required air of reality. In doing so, it is necessary to review the following factors; (1) identity; (2) opportunity; (3) motive; (4) animus; and, (5) the strength of the Crown’s case.

Identity

[15] In cases such as R. v. Grant^6, an unknown or unidentified third party suspect is the subject of the third party suspect defence. In this case, the identity of the third party suspect is known to be Rian McLean, a long friend of Mr. Martineau’s.

Opportunity

[16] This is the area of greatest strength for the defence with respect to the air of reality test.

[17] In Mr. McLean’s December 29, 2011 videotaped statement, he told police he was in Mr. Martineau’s apartment on the evening of December 23, 2011 and saw Mr. Davison. He told police:

Mr. McLean: He [Ivan Davison] was just lying there.

Det Napoleoni: Okay.

Mr. McLean: He was still – you know what, actually to be very honest, he wasn’t even dead yet when I seen him lying there. He was still moving around, he was, he still moving.

Det Napoleoni: Okay.

Mr. McLean: And if – if what – ah, like, I don’t know what to say, he was moving around and that’s like, like I said, I was just only there for a few minutes and I said, “I’m leaving.” He [Mr. Martineau] said, “No, - wait – wait.” I said, “No, I’m leaving and I walked out the door.” I just left man. I wasn’t trying to…[^7]

[18] In his statement to police on March 24, 2015, he confirmed that he was in the apartment on the evening of December 23, 2011. He said “I seen the body lying on the floor in a puddle of blood and I walked right out. I left instantly.”[^8] Mr. McLean told police he was in the apartment for no more than thirty seconds.

[19] During his testimony at the voir dire on April 8, 2015, Mr. McLean said he went to the apartment on December 23, 2011 and knocked on the door but no one was there so he left. He did not see any blood. When his March 24, 2015 statement was shown to him, he told the court he could not remember telling the police that he saw a body and further that he did not feel that what he told the police on March 24, 2015 was true because he was only at the apartment for a brief second.

[20] During his testimony on April 8, 2015, Mr. McLean was shown the agreed statement of facts used on his guilty plea in August 2013. The agreed statement of facts set out that Mr. McLean saw Ivan Davison moving and lying on the floor. He also saw blood. Then he left. Mr. McLean said he could no longer agree with what was in the agreed statement of facts. He said he did not know if Mr. Martineau or Mr. Davison were there on the evening of December 23, 2011. He was only in the doorway of the apartment, saw blood and left.

[21] Mr. McLean conceded that he did not relish giving evidence for the Crown. He would be known as a rat in his prison environment. He was not concerned, however, as he said that he had not said anything against anyone.

[22] Mr. McLean also told the court that December 23, 2011 was his birthday and he celebrated by using a lot of crack cocaine. He was an admitted crack addict at that point in his life who stole to support his habit. He had been using crack for fifteen years and in December 2011 was using crack almost every hour. He needed $1,000 per day to feed his habit.

[23] Lorraine Payne gave evidence at the preliminary enquiry. She is the mother of Kayla Sutton, who lived across the hall from the Martineau/Davison apartment at 12 Queen Street East in Brampton. Ms. Payne knew Rian McLean. She went to her daughter’s apartment on the evening of December 23, 2011 around 10:30 p.m. As she was leaving own apartment, she saw Mr. Martineau in the stairwell and McLean asleep in a chair in the apartment across the hall.

[24] Cell phone records for Rian McLean show daily communication with Mr. Martineau between December 22and December 29, 2011. The cell phone records also showed that Mr. McLean’s phone utilized cell towers within the City of Brampton other than between 1:45 a.m. and 3:05 a.m. on December 25, 2011, when the cell phone towers showed usage from Brampton to the body dump site and back.

[25] Gary Erent gave evidence at the preliminary enquiry that he saw two people he identified as Mr. Martineau and Mr. McLean on the morning of December 24, 2011. Mr. Erent was in the street level store below the apartment at 12 Queen Street East around 10:30 a.m. on December 24, 2011. He saw a man he later identified as Mr. McLean walking along the street. He had heard someone walking quickly down the stairs from the apartments above and then immediately saw Mr. McLean through the store front window as he passed by.

[26] Maria Ledo gave evidence at the preliminary enquiry that she loaned Mr. Martineau her car on the evening of December 24, 2011. Mr. Martineau drove and Mr. McLean was in the passenger seat and they drove her home. She received a “20 piece” of crack cocaine in exchange for lending the car to Mr. Martineau for a few hours.

[27] The agreed statement of facts states that Mr. McLean assisted Mr. Martineau with the dumping of Ivan Davison’s body. During his testimony at the voir dire, Mr. McLean said that he did not know the name of the person that he helped with the moving of the body. He also testified that he did not know the reason why he and the other person drove to the Caledon area until they arrived and the trunk was opened. He said he thought it might have something to do with drugs.

Motive

[28] The defence submits that Mr. McLean’s motive for killing Mr. Davison was money. In December 2011, Mr. McLean was feeding a $1,000 per day crack habit.

[29] On December 23, 2011 at 7:04 p.m., James Martineau and Rian McLean are seen on video surveillance at a Scotiabank branch located at 1 Main Street South, Brampton. They are attempting to withdraw money using Ivan Davison’s bank card.

[30] On the same evening at 9:43 p.m., Mr. McLean is seen on video surveillance at the same bank branch once again trying to access Mr. Davison’s account with his debit card. Mr. McLean appeared to be on cell phone throughout. Mr. Martineau’s cell phone records show a call to Mr. McLean on December 23, 2011 at 9:39 p.m. that lasted 7.53 minutes. Mr. McLean was unsuccessful in gaining access to Mr. Davison’s account.

[31] Mr. Martineau is seen trying to access Mr. Davison’s account with his debit card on December 23, 2011 at 9:29 p.m. and again at 10:03 p.m. He was on his cell phone both times. Phone records show that he called Rian McLean’s number at 9:25 p.m. for 3.47 minutes and again at 9:57 p.m. for 2.17 minutes. The defence theory is that Mr. McLean was torturing Mr. Davison for his PIN number while Mr. Martineau is at the bank machine with the debit card trying to access Mr. Davison’s account.

[32] Both Mr. Martineau and Mr. McLean have extensive criminal records. Neither record shows a significant propensity for violence, although Mr. Martineau’s record is longer and contains a conviction for assault bodily harm.

Animus

[33] In his videotaped statement, dated March 24, 2015, Mr. McLean describes Mr. Davison as “ignorant,” “rude,” and a “belligerent drunk”. He stated that Mr. Davison was belligerent to him “for no reason”[^9].

[34] There is no evidence of any threats to kill Mr. Davison on the part of Mr. McLean. There were two threats to kill Mr. Davison uttered by Mr. Martineau in December 2011, as per the ruling in the Prior Discreditable Conduct voir dire.

[35] There is no evidence that Mr. McLean knew Mr. Davison particularly well. Although he knew who he was, they were not friends, roommates, nor did they socialize together.

[36] Although Mr. McLean denied knowing Mr. Davison’s phone number, cell phone records show a call from Mr. McLean’s cell phone to Mr. Davison’s cell phone on December 23 and 24, 2011. The extent of their actual relationship is therefore unclear.

The Strength of the Crown’s Case

[37] As Mr. Martineau’s videotaped statement has been admitted after the Voluntariness voir dire, the Crown’s case against Mr. Martineau has been considerably strengthened. Although already set out at length in that ruling, some of the more striking statements made by Mr. Martineau to Detective Courtice in relation to the events are as follows:

(a) “I couldn’t just leave him sitting on the ground…wrapped up in a bed sheet…I wouldn’t have made it a week if I’d done that.”

(b) “It’ll always be there that I’ve taken another man’s life….I will always get sideways glances from people I’ve known. They’ll always be like, he’s a murderer. He killed somebody. Won’t tell anybody why…”

(c) “Mom doesn’t deserve to be in prison for something I did.”

(d) “I scattered everything I was wearing when I killed him in Peel garbage cans all over Peel.”

(e) “I think anybody who takes it upon themselves to come and touch somebody when they’re sleeping deserves what they get.”

(f) “The stores downstairs from my house were open when I left his corpse in the [inaudible].

[38] Edited versions of the letters written by Mr. Martineau from jail have also been admitted into evidence. Some portions of those letters also strengthen the Crown’s case against Mr. Martineau as follows:

(a) The poem in Letter #2 to Chanel Wasson entitled “No Future for a Killer”. In this poem Mr. Martineau ruminates on what life will be like for him after serving ten years in prison. He refers to himself in the poem as a killer.

(b) In Letter #3 to Chanel Wasson, Mr. Martineau says, “I can replace the life I took from Ivan by helping the life of someone else, I think.”

(c) In Letter #9 to Chanel Wasson, Mr. Martineau says, “I cannot return the life I’ve taken, yet I must give one back.”

(d) In Letter #21 to “Dad”, Mr. Martineau says, “You ever think you were gonna raise a killer? ...I’m not saying I had to kill the guy but shit went south fast and he’s dead.”

(e) In Letter #22 to “Jenn”, Mr. Martineau writes, “Let me ask you, do you think it’s fucked up that your writtin (sp.) a killer?”

(f) In Letter #23 to “Jessica”, Mr. Martineau writes, “Don’t get it twisted, his life was ended at my hands, but there’s reasons I did it.”

[39] Two threats to kill Mr. Davison in December 2011 were made by Mr. Martineau. The threats have been admitted into evidence after a voir dire, given that they relate to prior discreditable conduct on the part of Mr. Martineau. The first threat was made in the first or second week of December. It was not made directly to Mr. Davison but was overheard by a friend of Mr. Davison’s. The intended victim was referred to as “the old man.” The witness assumed that Mr. Martineau was referring to Mr. Davison as he had referred to him as “the old man” in the past.

[40] The second threat was made on December 20, 2011. It was made in the presence of a friend of Mr. Davison’s who saw Mr. Martineau look directly at Mr. Davison and say “I’m gonna kill that man.”

[41] Two ante-mortem statements made by Mr. Davison have also been admitted into evidence after a voir dire. Those statements were both made on December 20, 2011.

[42] In the first statement, Mr. Davison told his friend, John Ball, that “They’re going to be the death of me, those two.” Mr. Davison was referring to Wendy and James Martineau. In the second statement, Mr. Davison told his friend, Stanley Antrobus, that he had to get out of where he was living and move somewhere else. He said that there had been problems. Both statements referred to Mr. Davison’s living situation with Wendy and James Martineau and the issues and tensions between them.

[43] Mr. Martineau’s girlfriend, Chanel Wasson, gave a statement to the police on December 29, 2011, in which she told the police about Mr. Martineau’s confession to her with respect to the murder. Some compelling parts of this statement are as follows:

…he said he sat on the body, and he was listening to basically the air being released from the body, and he was surprised how much air the human body actually holds…[^10]

…He beat Ivan. He told me that, um, he cut off one of his fingers, I don’t know which finger. He told me he stabbed him in the eye with a box cutter. He said Ivan, uh, grabbed his chest and said he thought he was having a heart attack and he continued to – I don’t know if he punched him in the chest or if he kicked him with his feet, but he beat him in the chest…[^11]

…and James told him, I don’t think you’ll make it an hour. And James left. Well, he said he came back the next morning, so this would probably have to be Christmas Eve morning, I don’t know the exact timeline, but I’m just assuming… He said he went in, and his skin was grey, lips were white, his eye swollen, the one that he had stabbed was sunken in, and, um, he was cold. He was gone…

[44] Mr. Martineau’s sister, Nicole Martineau, gave a videotaped statement to police on January 11, 2012. In that statement, she told the police that her brother told her he stabbed Mr. Davison in the eye with a box cutter, hit him with a knife or meat cleaver and then came back after Mr. Davison was dead and hit him with a knife[^12].

[45] With respect to the Crown’s case as it relates to Mr. McLean’s involvement, the following is of note;

(a) In Chanel Wasson’s videotaped statement of December 29, 2011, she told police what Mr. Martineau had told her about Mr. McLean’s involvement:

Ms. Wasson: And Rian was not aware of this at first. They started driving up north; I think it was probably Highway 10 and Bovaird direction north, and, um, he told Rian they were going to get high. Rian didn’t know at first. And um, Rian joked with him, like, what are you doing? Are you gonna kill me out here or something like that?[^13]

(b) Mr. McLean, in his evidence at the voir dire on April 8, 2015, said that he did not realize that there was a body in the trunk until they arrived at their destination and the trunk was opened. He helped remove the body because he told the court “It was too late so I helped with the body, I couldn’t have just walked away or it could have been me in the trunk.”

(c) In all of his statements to police, Mr. McLean consistently denies killing Mr. Davison or having any involvement with the murder other than the disposal of the body and the brief interaction with Mr. Martineau on December 23, 2011.

(d) In Mr. Martineau’s letter to Tawnya, from jail he wrote that Mr. McLean was dragged in by accident and that his part in it was “soft”[^14].

(e) In Mr. Martineau’s videotaped statement, he expresses concern to Detective Courtice that his mother and his best friend, Rian McLean, had been charged as accessories or counterparts “for something that I did by myself.” He also told Detective Courtice that from the time that it happened (from the time Mr. Davison, still alive, was being dragged out of the room by James Martineau), to the time that he was disposed of, “nobody else was there” in the apartment.

(f) After his preliminary enquiry in 2013, Mr. Martineau changed his position with respect to Mr. McLean and wrote the following in one of his letters to “Nadia,”

I’m clearly on camera at the bank… how am I the one who is beating the victim at my apartment, how can I be at two places at once. I’m either at the bank or I’m at my house. I can’t do both. If I’m at the bank who’s torturing the victim? If I’m at my house then who’s at the bank? I don’t think they can prove murder.…he’s lucky as fuck cause honestly he could be charged with what I’m being charged with. The judge even says he thinks he was my partner, and that he’s lucky. All the evidence supports it.

(g) In Nicole Martineau’s statement to police, she said that her brother told her that his mother was not there when it happened and that he acted alone. He told her that he had gotten rid of the body.[^15]

Analysis and Ruling

[46] In order to determine whether there is a sufficient nexus between Mr. McLean and this offence, there are several considerations.

Motive and Animus

[47] First, it is unclear what Mr. McLean’s relationship was with Mr. Davison. He said that he would see him around Brampton but they did not socialize or even talk. This is different from his statement on March 24, 2015, in which he said the following about Mr. Davison:

If you really want to know, he was a belligerent drunk.

…but he was an ignorant man.

He was just rude…If he didn’t like you he was ignorant to you…there’s incidents where he was ah, very ignorant to my other co-accused...Wendy Martineau.

Like, I’d talk to him you know, just say hi or whatever, and he’d be all grumpy and he’d walk by and later on that day if I go by the house, you know, he’d be rude, just for no reason.[^16]

[48] Mr. McLean likely lied about knowing Mr. Davison’s phone number. Cell phone records show calls from his cell phone to Mr. Davison’s cell phone at 10:47 a.m. on December 23, 2011 and then again on December 24, 2011 at 3:24 p.m.

[49] There is no doubt that Mr. Martineau’s relationship with Mr. Davison was quite different from that of Mr. McLean. Mr. Martineau and Mr. Davison were roommates who were in conflict. Mr. Martineau had, jokingly or not, threatened to kill Mr. Davison within three days of the actual event. Mr. Martineau was “pissed off” with Mr. Davison because of money issues. He was upset about Mr. Davison’s masturbating, his treatment of his mother, his hygiene habits and called him a “dirty pervert.” Mr. Davison clearly felt this tension as he told Mr. Antrobus that he would have to move out because of problems in the apartment.

[50] Mr. Martineau had clearly stated animus against Mr. Davison. He stated he woke up to find Mr. Davison in his bed and sexually touching him. Mr. Martineau had been sexually abused as a child. His abuser was acquitted after trial. This rankled with Mr. Martineau. He had very definite ideas about what should happen to people who sexually assaulted others. This is graphically set out in Letter #10 written to Chanel Wasson from jail. Mr. Martineau described what punishment he would mete out to rapists, including cutting off their hands and branding them with an “R.” He suggests that the victim should decide the punishment for rapists.

[51] While Mr. McLean’s evidence on April 8, 2015 was that he had $1,000 per day crack cocaine habit, he sustained this habit through theft. He admitted in his March 24, 2015 statement to regularly trying PIN numbers for debit and credit cards he stole and one time actually guessed right and was able to withdraw $4,000 from someone’s account, stating “…you know, like I – I guessed and ah, I think it was a – a year or something I put in and I ended up taking out, fuck, over four grand.”[^17]

[52] The circumstances involving Mr. Davison’s debit card seemed to be no different. Consistent with prior history, Mr. McLean was desperate enough for money that he tried twice on the evening of December 23, 2011 to access Mr. Davison’s account by trying different PIN numbers. Mr. Martineau tried three times. There is evidence that Mr. Martineau and Mr. McLean may have been on the phone to one another either during or just before or after their respective attempts to access the account. Both Mr. Martineau and Mr. McLean were apparently trying to access Mr. Davison’s money. This is further evidenced by the forged cheque written by Mr. Martineau to himself on Mr. Davison’s account for $350 and noted as a Christmas present in the memo line.

[53] All of this evidence raises a doubt with respect to Mr. McLean’s evidence that his encounter with Mr. Martineau that evening was restricted to a thirty second look inside Mr. Martineau’s apartment door. There had to have been contact between them with respect to the debit card and with they were seen at around 10:30 p.m. that same evening at a local crackhouse.

[54] With respect to motive, a $1,000 a day crack habit could be a motive for doing many things. Mr. McLean was not a model citizen. He had a lengthy criminal record. He used crack every hour and admitted to resorting to crime to feed his habit. He stole debit and credit cards and randomly tried PIN numbers to obtain money from those cards. He frequented crack houses. The last place he was seen on December 24, 2011 was asleep in a chair in a well-known Brampton crack house. His evidence was that he was often given crack “on credit” at the beginning of the day thereby forcing him to come up with $1,000 in the course of the day to pay for the advance. As of December 23, 2011, Mr. McLean was a desperate man with a crack cocaine habit that needed feeding every hour.

[55] The defence theory is that Mr. McLean was on a crack binge on December 23, 2011 and celebrating his 30th birthday. He needed money. When he was arrested, he only had $1.55 on his person. There may have been sufficient motive for Mr. McLean to torture Mr. Davison for his PIN number and thereby feed his habit.

[56] It is this court’s view there is a sufficient nexus between Mr. McLean and the crime with respect to motive and animus. The threshold is not a high one. Mr. McLean’s animus towards Mr. Davison is not on the same scale as that of Mr. Martineau, but it exists just the same. He found him an ignorant, belligerent drunk. He lied about the extent of contact he had with him. He needed money for his crack habit. He was frank that he resorted to crime to get the money he needed for his habit.

Opportunity

[57] Turning to opportunity, it is important to specifically set out the available evidence of Mr. McLean’s whereabouts on December 23 and 24, 2011.

(a) Mr. McLean was at the Martineau/Davison apartment at some point during the day on December 23, 2011. He was standing just inside the apartment and could see partly into Mr. Davison’s bedroom where he saw Mr. Martineau, part of Mr. Davison’s body and some blood. He was not sure that Mr. Davison was still alive but did see his legs moving. He says he left quickly.

(b) At 7:04 p.m. on December 23, 2011, Mr. Martineau and Mr. McLean attended together at Scotiabank located at 1 Main Street South, Brampton and made two unsuccessful attempts to use Mr. Davison’s bank card.

(c) At 9:43 p.m. on December 23, 2011, Mr. McLean went back to the same bank machine, on his own, and attempted to use Mr. Davison’s bank card. He was unsuccessful. Mr. McLean appeared to be talking on a cell phone while in the bank. Cell phone records indicate he was likely talking to Mr. Martineau.

(d) At approximately 10:30 p.m. on December 23, 2011, Ms. Lorraine Payne saw Mr. Martineau in the stairwell of her apartment building at 37 Queen Street East in Brampton. She also saw Mr. McLean at the same time. The door of the apartment across the hall was open and she saw Mr. McLean asleep in a chair. Ms. Payne knew both Mr. Martineau and Mr. McLean by sight. The apartment where she saw Mr. McLean was a well-known crack house. Mr. McLean testified he often went there to use or buy crack or to sleep.

(e) On December 24, 2011, at approximately 10:30 a.m. Mr. McLean was seen by Mr. Gary Erent passing in front of the St. Jerome religious store located just below the Martineau/Davison apartment. Mr. Erent had heard someone come down the stairs from above immediately before seeing Mr. McLean.

(f) Ms. Maria Ledo lent Mr. Martineau her car on the evening of December 24, 2011. Mr. Martineau drove her home. Mr. McLean was seated in the passenger seat when she was driven home.

(g) The agreed statement of facts used at Mr. McLean’s guilty plea indicates that after Ms. Ledo was dropped off, Mr. McLean assisted Mr. Martineau and placed Mr. Davison’s body in the trunk and drove to the Bolton area in the early hours of December 25, 2011. The body was dumped in a ditch.

(h) The cell phone records show daily communication by phone from Mr. McLean to Mr. Martineau from December 22nd to December 29th, 2011.

[58] The defence submits that there was sufficient opportunity for Mr. McLean to kill Mr. Davison, as there are significant gaps in time on December 23, 2011 when Mr. McLean had the same opportunity as Mr. Martineau to kill Mr. Davison while on his own. At other times on that day he was with Mr. Martineau.

[59] The defence theory is that when Mr. Martineau was at the ATM at 10:03 p.m. he was on the phone with Mr. McLean who was cutting off Mr. Davison finger and stomping on his chest to force him to tell them his PIN number. There is no evidence that the footprints found on Mr. Davison’s shirt were those of Mr. Martineau.

[60] I find that on a review of all of the available evidence and taking it at its highest value, and notwithstanding the strength of the Crown’s case, there is evidence of both motive and opportunity with respect to Mr. McLean acting either alone or in concert with Mr. Martineau. This evidence is sufficient to raise a reasonable doubt that Mr. McLean’s participation in Mr. Davison’s murder was more than what his own evidence says it was. It is for the jury to decide what weight to give Mr. McLean’s evidence given its frailties and what weight to give Mr. Martineau’s evidence in that context.

Is There an Air of Reality to the Defence?

[61] I find in this case, that the defence arguments amount to more than “a chain of speculation joined by gossamer links”[^18]. This was the expression used by the court in Grandinetti to describe the tenuous evidence of motive and opportunity in that case.

[62] Importance guidance in determining the air of reality test is to be taken from the dissent in R. v. Cinous[^19], in which the court reviewed the history of the “air of reality” test. The court confirmed that it is a well-established principle that the accused must introduce “some evidence” as opposed to “sufficient evidence” in order for the jury to be instructed on the defence.

[63] As per Tehrankari[^20], the evidence linking the suspect to the alleged offence must be more than mere speculation or conjecture and the nexus between the suspect and the offence charged must be a rational one.

[64] Given the principles set out in Cinous and the threshold in Tehrankari, I find that the evidence linking Mr. McLean to this offence is more than merely speculative. Unlike Grandinetti, Mr. McLean was at the crime scene and with Mr. Martineau at various times during the day and evening of December 23, 2011. The fact that his motive or animus may not be on the same level as that of Mr. Martineau is not a consideration for this court at this threshold stage. As per Cinous, there is “some” evidence of motive and opportunity sufficient to support an air of reality.

[65] I agree with the Crown that having only one of these evidentiary bases would be insufficient, but I find that both exist. The extent to which they may compare to that of Mr. Martineau is again, for the jury’s consideration and not mine.

[66] In summary, I find there is an air of reality to the third party suspect defence such that it should be put to the jury. I have arrived at this conclusion based on the evidence of motive and opportunity, but also based on my assessment that the defence is not fanciful or outlandish (as per Cinous) nor will the jury be confused or distracted by it.

[67] Finally, I have not adverted in this ruling to the defence argument that the defence should be put to the jury because the investigation was the result of “tunnel vision” on the part of the police. That was not necessary given the evidence of motive and opportunity. However, should the defence raise questions of police witnesses in this regard, I will entertain a continuation of this voir dire in relation to the Crown’s request to introduce evidence of investigative hearsay.

Justice C.A. Gilmore

Released in Open Court: April 24, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

[^1]: R. v. McMillan, (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824. Also see R. v. Grandinetti, 2005 SCC 5, [2005] S.C.J. No. 3 at para 47.

[^2]: Ibid, at para 48.

[^3]: 2002 SCC 29, [2002] 2 S.C.R. 3, at para 84.

[^4]: 2008 CanLII 74556 (ON SC), [2008] O.J. No. 5651 at paras 24-25.

[^5]: [2015] SCC 9, at para 44-45.

[^7]: Videotaped statement of Rian McLean, dated December 29, 2011, p. 134, lines 15-31.

[^8]: Transcript of the videotaped statement of Rian McLean, dated March 24, 2015, p. 96, lines 5-7.

[^9]: Transcript, supra at pp. 54 and 55.

[^10]: Transcript of the videotaped statement of Chanel Wasson, dated December 29, 2011, p. 59, lines 5-10.

[^11]: Ibid, at p. 13, lines 7-16.

[^12]: Videotaped statement of Nicole Martineau, dated January 11, 2012, page 42, line 27 to page 44, line 6.

[^13]: Transcript, supra at page 15, lines 7-16.

[^14]: Letter #27 to “Tawnya”.

[^15]: Transcript, supra at pages 25-26.

[^16]: Transcript of the Statement of Rian McLean, dated March 24, 2015 pp. 54-56.

[^17]: Transcript of March 24, 2015 statement, page 25, lines 17-21.

[^18]: Supra, at para 58.

[^19]: Supra, at para 172.

[^20]: Supra, at para 23.