



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 OConnor 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 Philips murder.  The question
    was which of them did the stabbing?  The Crowns 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 appellants 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, Spencers police statement was admitted for the truth of its contents.

[5]

The Crowns case also relied on the appellants 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 Browns house and
    then took another cab to the appellants home where he changed his bloodied
    shirt.  In addition, the appellants 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
    judges 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 Spencers 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 Spencers 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 Browns testimony which was central to the Crowns case.

[10]

Ultimately,
    Spencers 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 Spencers 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 Spencers
    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 Crowns case of Browns version of
    events, the failure to provide a limiting charge on the hearsay portion of
    Spencers statement is an important error of law.

[12]

The
    second issue is the instruction concerning the evidence of the appellants
    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 appellants 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]
    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.


