R. v. Martineau, 2015 ONSC 2701

CITATION: R. v. Martineau, 2015 ONSC 2701

NEWMARKET COURT FILE NO.: 12-00002982

DATE: 20150424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Crown/Applicant

– and –

James Martineau Defence/Respondent

Peter Westgate and Gemma Sang, for the Crown/Applicant

Corbin Cawkell and Aliki Yorgiadis, for the Defence/Respondent

HEARD: April 22, 2015

Ruling on Admissibility of Scene and Autopsy Photographs

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] The accused, James Martineau, is charged with First Degree Murder in the death of Ivan Davison on December 23, 2011.

[2] The Crown alleges that the murder was planned and deliberate and took place in the course of a forcible confinement.

[3] The victim died of blunt force trauma which resulted in a transected aorta. The deceased was also burned and cut and the little finger on his right hand was amputated. The body was then wrapped in sheet and air mattress and dumped at the roadside where it was discovered by passers-by on December 26, 2011.

[4] The Crown alleges that it was Mr. Martineau who inflicted the multiple injuries to Mr. Davison during the course of a period of forcible confinement and then delivered the final fatal blow by stomping on his chest. Mr. Martineau then stored the body in a recycling bin, wrapped it in a sheet and ripped air mattress and enlisted the help of a friend to transport the body and dump it at the roadside north of Brampton.

[5] In this voir dire, the Crown applies to have the photographic evidence of Mr. Davison’s body as it was found on December 26, 2011 and selected autopsy photographs admitted into evidence at the respondent’s trial. The admission of the photographs is sought on the grounds that they are relevant and probative to a number of important factors including, but not limited to, identity, intent, motive, planning and deliberation, the nature of the attack on the victim and the types of weapons used. The photographs will also assist to rebut the defences of provocation, intoxication, self-defence and third party suspect defence, if those defences are advanced.

[6] The position of the respondent is that the photographs prejudice the accused because they are gratuitous and inflammatory in nature. The oral testimony of the witnesses and the forensic pathologist, Dr. Pollanen, is sufficient, does not need to be corroborated and the photographs on their own do not advance the Crown’s case.

Specifics of the Photographs in Issue and the Law

[7] There are two separate sets of photographs which are the subject of this voir dire. The first set is comprised of seventeen pages of photographs which form part of Dr. Pollanen’s power point presentation. Some pages contain more than one photograph but those photographs are related. These photographs depict the victim’s injuries, including a full frontal view of the injuries, close ups of the burn on his face, the cuts on his stomach, face and head, stab wounds, bruising on his body and face, the amputated little finger and the defensive wounds. There is also a photograph of the internal injury to the aorta and larynx including the bruising and redness shown on the tissue.

[8] The second set of fifteen photographs were taken at the roadside where Mr. Davison was discovered. These photographs depict the condition of the body at the roadside including the position, clothing, how the body was wrapped and blood staining.

[9] The subject photographs are presumptively admissible. The issue is whether they are relevant and their probative value is outweighed by their prejudicial effect. The onus is on the accused to demonstrate that otherwise presumptively admissible evidence should be excluded as per R. v. Currie[^1]. Dambrot J., in Currie, sets out at paragraph 6 (citing R. v. Schaefler[^2]), a helpful list of circumstances in which photographs of the deceased may be relevant, as follows:

(a) To illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions.

(b) To illustrate the minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds.

(c) To corroborate testimony, provide a picture of the evidence and to assist the jury in determining its accuracy and weight.

(d) To link the injuries of the deceased to the murder weapon.

(e) To provide assistance as to the issues of intent and whether the murder was planned and deliberate.

(f) To help the jury determine the truth of the theories put forth by the Crown or defence, e.g.: as to which accused committed the crime; as to whether the crime was committed in self-defence.

[10] Photographs may be admitted where intent and identity are in issue. In R. v. Wills[^3], the defence had not revealed the defence or defences to be relied upon at trial at the time of the voir dire. While the defence has no obligation to do so, the result was that intent and identity remained live issues in Wills and they remain live issues in this case.

[11] Even where, as in R. v. Khairi[^4], it was not disputed that the accused had stabbed his wife, a photograph of a gaping wound in the deceased’s neck where she had been stabbed was admitted as intent remained in issue.

[12] In R. v. Liard[^5], the accused pleaded guilty to manslaughter in relation to the stabbing of a young girl. Disturbing photographs of the deceased were admitted because planning and deliberation and intent remained in issue. As well, the photographs depicted defensive wounds which were relevant to rebut self-defence.

[13] Photographs of a deceased victim have also been admitted where they were found to be relevant to animus or hatred of the victim of the deceased by the accused. In R. v. Arsoniadis[^6], the court admitted photographs based on their relevance to the extent of interference with the deceased and the state of mind of the accused which could include “hate or love or intent”.

[14] The use of photographs to rebut defences has also been considered by courts. In R. v. A.D.[^7], the court found that a videotape of the scene where the victim was found and certain other photographs should be admitted into evidence. The evidence was found to be probative because it tended to advance or refute for the jury the believability of the third party suspect’s account of finding the body.

[15] In R. v. Vivar[^8], the court admitted certain photographs and a videotape of the body. The court adverted to being unaware of what evidence would be advanced for the self-defence scenario and found that the evidence was probative to prove a fact in issue, namely that the deceased was not shot in self-defence. The court referred to the principles set out R. v. Schaefler[^9] in coming to this conclusion.

[16] Courts have also considered the issue of whether photographs are so inflammatory as to negate any possible probative value. In A.D.[^10], the court considered and allowed photographs of a young deceased victim which included parts of her body with peeled away skin. The court admitted a videotape of the deceased, balancing its probative value against the risk of reasoning prejudice potentially associated with inflammatory photographs of this nature.

[17] In R. v. McGregor[^11], the court found that photographs of the partly decomposed body of the victim, which depicted maggots and insects burrowing into her body and into her multiple stab wounds, were likely to be “shocking and repulsive to ordinary sensibilities and an affront to her [the victim’s] dignity.” The court found that there was no obvious reason why the jury needed to see the photographs in order to appreciate the number, severity and location of the victim’s wounds.

[18] Autopsy photographs have also been admitted because they were needed by the forensic pathologist. In R. v. Rafferty[^12], Dr. Pollanen was the forensic pathologist. The court held that because Dr. Pollanen needed the photographs to assist the jury in understanding the basis for his conclusions, the photographs would allow the jury to reach their own independent opinions about his conclusions as opposed to being asked to “take his word for it.”

Analysis and Ruling

A. Determining Probative Value

[19] The jury in this case must consider the issues of identity, intent and mens rea. They must also be able to assess the credibility of Mr. Martineau.

[20] The evidence that the jury must consider in relation to the abovementioned issues includes, among other things; the cause and timing of the death, the nature of the attack on Mr. Davison, including the force of the attack and any pain he may have experienced, the weapons or objects used to cause the injuries in relation to the weapons and objects found in apartment, the nature of the injuries as they relate to the blood spatter evidence and in what rooms and over what period of time the injuries occurred.

[21] With respect to credibility, the jury must consider the confessions of Mr. Martineau and whether there is corroboration of the confessions. The jury must also consider the credibility of witnesses to whom Mr. Martineau made confessions.

[22] Finally, the jury must consider any defences advanced. As the respondent is not required to confirm at this stage what defences will be advanced, all defences remain a possibility and the use of photographs to rebut those defences must be considered.

[23] In this case, I find that the probative value of the photographs sought to be tendered is significant based on the following and using the analysis in Schaefler[^13] set out in para [9] above;

(a) The Photographs Illustrate the Facts on which Dr. Pollanen based his Opinion and the Steps by which he arrived at it.

[24] During the course of the voir dire, the Crown submitted an email from Dr. Pollanen, dated March 16, 2015. In that email Dr. Pollanen explained why he wanted to use the photographs during his evidence, “I believe I will do my best work and discharge my duties as an expert witness in the most effective manner if I use the powerpoint presentation from the preliminary enquiry as a teaching tool. A critical analysis and cross-examination of my evidence will be facilitated by the trier of fact and lawyers have direct exposure to the subject matter that I am presenting. It embraces transparency of my results and work.”

[25] The Crown submits that that Dr. Pollanen needs the photographs to explain to the jury the step-by-step post-mortem examination of Mr. Davison and how he arrived at his conclusions. This will allow the jury to then make their own independent assessment of the reliability of those conclusions.

[26] The Crown’s position is that, with the assistance of Dr. Pollanen, the photographs demonstrate the brutality of the killing, the nature of the attack and the number and types of weapons used. This, in turn, will assist the jury with their considerations of animus and intent and as proof of planning, deliberation and forcible confinement.

[27] According to the Crown, the roadside photographs are relevant as they show the position and location of the body as left by the murderer, blood staining and the ligature binding (which strap the Crown submits can be matched to a bag in Mr. Martineau’s room). The footprints on the deceased’s shirt also relate to the cause of death.

[28] The defence argues that the photographs are of no assistance to the jury. It is conceded that the cause of death was the aortic injury due to force being applied to Mr. Davison’s ribs and lungs. This is set out in Dr. Pollanen’s report which was presented at the preliminary enquiry. There is no need to go further. The autopsy report clearly sets out the locations, cause and size of each injury. All of the injuries occurred before the fatal blow except for the incisions on the foot.

[29] Further, any conclusions related to weapons used to cause the injury are complete speculation, as Dr. Pollanen is unable to say exactly what caused the cutting wounds, other than a sharp pointed instrument. Dr. Pollanen also cannot comment on any pain the victim may have experienced because it is not clear that the victim was even conscious at the time the injuries were inflicted. It is known, for example, that he had three times the legal limit of alcohol in his system.

[30] Finally, as the forensic pathology report will be admitted on consent and the cause of death is conceded, there is no need for the roadside photographs or the autopsy photos. Dr. Pollanen’s report and transcript from the preliminary enquiry is sufficient for the jury to understand Dr. Pollanen’s conclusions and how he came to make them.

[31] With respect, I do not agree with the defence on this point. This is not a case such as R. v. J.S-R.[^14]. In that case, the Crown sought to admit four autopsy photographs showing the entry and exit wound of the single gunshot which killed the deceased. The cause of death was not in dispute. The court found that since the cause of death was conceded and the defence did not object to the forensic pathologist being called as witness, there was little probative value in the autopsy photographs. The forensic pathologist was completely capable of describing the location of the entry and exit wounds and could even point to her own body to illustrate if necessary.

[32] In the case at bar, the injuries are far from a simple entry and exit wound from a gunshot. The injuries include blunt trauma to the face, head, chest, abdomen, hands and forearms, incised wounds to the face, abdomen and right wrist, neck compression injuries, second degree burns, stab wounds and the amputation of a finger.

[33] While the exact nature of the weapon or object used to inflict the injuries is not known, Dr. Pollanen can assist the jury with his opinion as to why he believes certain injuries may have been caused by a sharp edged instrument or tool, by stomping or kicking, by a flame or hot surface or by blunt impacts.

[34] Dr. Pollanen’s detailed explanations with the assistance of photographs are probative to the brutality of the attack, the animus of the perpetrator, forcible confinement and intent. Further, this relates to credibility of the respondent’s version of events and the inferences the jury may choose to make with respect to the injuries and the confessions that Mr. Martineau made to the police and others.

[35] In summary, I find that the autopsy photographs are probative to illustrate the facts on which Dr. Pollanen based his opinion. Given the nature and extent of the various injuries, the relevance of Dr. Pollanen describing the steps he took to come to his conclusions cannot be underestimated with respect to giving the jury what they need to decide, whether to accept or reject these conclusions. Further, the autopsy photographs will, as Dr. Pollanen puts it, “embrace the transparency of his results and work.”

(b) To Illustrate the Minutiae of Objects Described by Testimony

[36] In my view, the injuries suffered by this victim are atypical. While there cannot be a “normal” or “usual” type of murder, a perusal of the case law indicates that most often one type of weapon is used. It may be used repeated times but typically a gun, knife or other sharp object is used to inflict almost immediate death.

[37] In the case at bar, the injuries were not confined to one part of the body, they were not inflicted by the same type of instrument, nor were they done all at the same time. The cuts to Mr. Davison’s foot were done during the course of the dying process or after he died.

[38] The defence submits that since there is no evidence of the order in which the injuries occurred, or exactly the type of weapon used, showing the photographs with all of the injuries depicted is simply inflammatory and will not advance the case or assist the jury.

[39] The Crown argues that Dr. Pollanen may be asked during his evidence if specific injuries could have been caused by certain weapons. The jury will need to see photographs of the individual injuries in order to assess Dr. Pollanen’s opinion on how they were caused.

[40] Further, the jury will no doubt be unfamiliar with aortic severing, a bleeding larynx or puncturing wounds. The photographs are essential to the jury’s understanding and ultimate assessment of what happened to Mr. Davison.

[41] The photographs and description of the defensive injuries are relevant to the Crown’s allegation that Mr. Davison was confined during the course of the attack.

[42] Based on the above, I am persuaded that the photographs have significant probative value with respect to an explanation of the minutiae of the nature and extent of the multiple types of injuries suffered by the victim. The meaning of the word minutiae implies significant detail. An oral explanation of a complex injury cannot be other than enhanced by photographs.

(c) To Corroborate Testimony and Provide a Picture of the Evidence for the Jury

[43] All of the photographs are relevant to statements given by Mr. Martineau, letters he wrote from jail and statements given by other witnesses.

[44] For example, Mr. Martineau told Chanel Wasson that he wrapped Mr. Davison in blankets and a cut-up air mattress. Mr. Davison was found wrapped in a blanket and cut-up air mattress.

[45] Mr. Martineau told his sister, Nicole, that he stabbed Mr. Davison in the eye with a box-cutter and again after he was dead. The cuts to Mr. Davison’s feet were made after he was dead. There is significant cut very near Mr. Davison’s eye.

[46] Mr. Martineau told his sister, Nicole, that he burned Mr. Davison and that the attack started in the living room. The photographs show burn marks on Mr. Davison’s face.

[47] Mr. Martineau told his sister, Nicole, that he hit Mr. Davison in the arm with a meat cleaver. The photographs show an incised cut to Mr. Davison’s wrist.

[48] He told Chanel Wasson that after Mr. Davison caressed his leg he cut one of his fingers off. The photographs show an amputated finger on Mr. Davison’s right hand.

[49] These are only some of the many examples of references by Mr. Martineau in letters, his statement to police and his confessions to others that corroborate the manner of the killing and the nature of the injuries.

[50] The roadside photographs are probative with respect the evidence concerning the disposal of the body, blood spatter evidence, the footprints on the deceased’s shirt and the possible link of the ligature to the bag in Mr. Martineau’s room.

[51] I do not agree with the defence that the roadside photographs are simply inflammatory photographs of a senior citizen covered in blood. The treatment of the body post-mortem is related directly related to animus and the possible third party suspect defence.

[52] I also do not agree with the defence that there is no evidence connecting the footprints on the victim’s shirt to Mr. Martineau. Mr. Martineau asked Detective Courtice in the course of the videotaped statement if he had seen any footprints on the victim’s face. In his letters from jail, Mr. Martineau also wrote about stepping on Mr. Davison and footprints on his neck.

[53] The jury is entitled to a literal “picture” of what happened so that they may draw inferences and assess credibility. Given the nature and extent of the injuries, the photographs are relevant to the jury having such a picture.

(d) To Link the Injuries to a Murder Weapon

[54] The actual murder weapon or weapons is not known in this case. There was a meat cleaver with Mr. Davison’s blood on it found in Wendy Martineau’s room. Scissors found the apartment were seized but the dried blood on them was never analyzed.

[55] Mr. Martineau made reference in one of his letters to “blood on the blade.” He also referred to cutting Mr. Davison with a box-cutter and hitting him in the arm with a meat cleaver.

[56] There are also the references cited above with respect to Mr. Martineau stepping on Mr. Davison’s face and neck.

[57] None of the weapons can be definitively connected to the wounds on Mr. Davison. However, this court finds that the photographs of his injuries and the conclusions of Dr. Pollanen with respect to what type of instrument or weapon may have been used to perpetrate such injuries, is relevant and probative. They will assist the jury in making inferences and assessing the credibility of Mr. Martineau and other witnesses who gave evidence about the crime scene and the events that unfolded.

(e) To Rebut Defences or Determine the Truth of Crown Theories

[58] The defences of provocation, intoxication, self-defence and third party suspect may all be pursued by the defence. As the defence has only indicated an intention to pursue a third party suspect defence at the time of writing this ruling, the court must assume that all issues related to potential defences remain live.

[59] As mentioned above, the jury is unlikely to be familiar with defensive wounds. As such wounds exist in this case, the photographs are highly probative with respect to self-defence and the jury understanding the relationship between wounds and the defence.

[60] The roadside photos are probative to identity since Mr. Martineau described wrapping up the body in a blanket and cut-up air mattress. This is exactly how Mr. Davison was found.

[61] The chest injuries are relevant to identity given Mr. Martineau’s comments about the footprints.

[62] The attack was a highly personal one with the injuries of the type consistent with the Crown’s theory of confinement and torture. In the days leading up to the murder, Mr. Martineau had threatened to kill Mr. Davison. There was tension between them about money. Mr. Martineau was critical of Mr. Davison’s lifestyle and habits.

[63] Mr. Martineau confessed to Detective Courtice that he had been sexually abused by a male relative as a child. The description by Mr. Martineau made it clear he was very affected by this incident and the fact that the accused relative was acquitted at trial. Mr. Martineau was critical of persons who committed sexual assaults and labeled Mr. Davison a “dirty pervert.”

[64] He confessed to his girlfriend, Chanel Wasson, that Mr. Davison tried to get into bed with him and touched him inappropriately at which point Mr. Martineau started to beat him, cut off his finger and stabbed him in the eye with a box-cutter.

[65] In his jailhouse letters, he wrote a graphic description of what type of punishment should be suffered by those who commit sexual assault.

[66] There is, therefore, evidence of why Mr. Martineau had animus towards Mr. Davison, how it increased in the days leading up to the murder and how it may have further increased as a result of the sexual touching. The photographs are probative of a personalized attack on Mr. Davison. This is relevant with respect to the jury drawing inferences related to identity and motive.

[67] The photographs are also relevant to the jury’s ability to assess the evidence of Mr. Martineau versus Mr. McLean in the event that the third party suspect defence is advanced. In R. v. A.D.[^15], the court held that a videotape of the crime scene and victim would assist the jury in their assessment of the credibility of the third party suspect who found the body and that of the accused who said the victim had been raped.

[68] As many possible defences remain live at this point in the proceeding, the court must take a broad view of the Crown’s application in this matter. The probative value of the photographs with respect to all of the outstanding defences cannot be underestimated and the Crown must be fairly permitted to rely on the photographs particularly with respect to the defences of self-defence and the third party suspect.

B. Prejudical Effect

[69] The defence argues that introduction of the photographs is likely going to invoke strong emotional responses in the minds of the jury which could interfere with a balanced consideration of the evidence and incite them to want to punish the accused.

[70] The Crown pointed to several cases in which disturbing or unpleasant photographs were admitted into evidence. In Wills[^16], images of the deceased’s decomposed body were admitted into evidence. The court found the images to be unpleasant “but no more so than those typically introduced in a homicide case.”

[71] In Sweeney[^17], Heeney J. noted that “The general public has, in my view, become largely desensitized to graphic images of blood, death and destruction.” And quoting R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.) as follows:

….juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime….The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination.

[72] Finally, Dr. Pollanen, in his email of March 16, 2015, writes that “…once I engage the jury in a scientific explanation of the images, any inflammatory nature that is apparent at first glance will be minimized and replaced with real understanding of what the images actually show at the medical/scientific level.”

C. Balancing Probative Value Against Prejudicial Effect

[73] It would be disingenuous to underestimate the skills of a modern day jury and their ability to dispassionately evaluate physical evidence. I am not persuaded by the respondent that the probative value of the photographs is outweighed by their prejudicial effect.

[74] Any inflammatory or gruesome aspect to the photographs will be minimized by a limiting instruction, the jury’s own modern day immunity to graphic visuals due to television and movies, and the scientific desensitization which will result from Dr. Pollanen’s clinical explanations.

[75] The Crown’s application is granted and all of the photographs at Tabs 4 and 5 of the Crown’s application may form part of their case. Dr. Pollanen is to review the available photographs and only use those actually needed by him to illustrate his power point presentation.

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]: 2000 CanLII 22822 (ON SC), [2000] O.J. No. 392. [^2]: [1993] O.J. No. 71 (S.C.J.). [^3]: [2007] O.J. No. 52 (S.C.J.) at para 4. [^4]: [2012] O.J. No. 4650 (S.C.J.). [^5]: [2013] O.J. No. 4000 (S.C.J.) at para 172. [^6]: [2007] O.J. No. 1211 (S.C.J.) at paras 16 and 17. [^7]: [2004] O.J. No. 5838 (S.C.J.) at para 21. [^8]: 2003 CanLII 18040 (ON SC), [2003] O.J. No. 5054 (S.C.J.) at para 43. [^9]: Supra. [^10]: Supra, at para 22. [^11]: 2015 ONSC 825 at paras 25 and 33. [^12]: [2012] O.J. No. 2135 (S.C.J.) at para 19. [^13]: Supra. [^14]: [2008] O.J. No. 4163, paras 4-6. [^15]: Supra at para 18. [^16]: Supra at para 28. [^17]: Supra at para 23.