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PROCEDURE - Trial judge’s duties - Assessing credibility of witnesses

Monday, February 11, 2019 @ 9:33 AM  

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Appeal by Petrin from his convictions for first degree murder of Santos and conspiracy to cause the death of Cromartie. Application by the appellant to adduce fresh evidence of payments made to Crown witnesses and their criminal records. The appellant was a high-ranking member of the White Boy Posse, which was active in the drug trade. He had put a price on the head of Cromartie who he believed had left the White Boy Posse without permission. He directed O’Hagan and K to take care of Cromartie. Santos was killed when O’Hagan fired several shots at her front door under the mistaken belief Cromartie was inside. After the killing, the appellant forgave O’Hagan’s drug debt. K pleaded guilty to first degree murder and testified against the appellant, as had many of the appellant’s criminal associates. The trial judge found there was confirmatory evidence of the witnesses for whom she had given herself a Vetrovec warning. She found the appellant was an aider and abettor to O’Hagan and K and had the required intent to cause death. She found it did not make a difference that the plan had been to kill Cromartie and not Santos. She concluded the murder was planned and deliberate, a murder for hire and a murder committed for the benefit of a criminal organization.

HELD: Appeal and application to adduce fresh evidence dismissed. The details of any payments and benefits received by Crown witnesses had been disclosed to defence counsel prior to trial. There was no failure by the Crown to provide disclosure. The due diligence requirement respecting evidence of payments had not been met. The new evidence, if it could be considered fresh evidence, could not reasonably have been expected to have affected the verdict. There was no error in the trial judge’s application of Vetrovec principles. In shooting at the door, O’Hagan was acting in accordance with the plan conceived by the appellant. The deviation in the plan, by not first identifying Cromartie at the door, did not mean the murder was not planned and deliberate. There was substantial evidence pursuant to which the trial judge could find the forgiveness of debt was consideration paid to O’Hagan for participation in the killing. There was overwhelming evidence the White Boy Posse was a criminal organization within the definition of s. 467.1(1) of the Criminal Code and that the plan to kill Cromartie was for the benefit and at the direction of the organization. The trial judge did not err in finding the killing was planned and deliberate, a murder for hire and a murder committed for the benefit of a criminal organization. The trial judge did not conflate the evidence of conspiracy with the evidence of planning and deliberation.

R. v. Petrin, [2018] S.J. No. 495, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and P.A. Whitmore JJ.A., December 17, 2018. Digest No. TLD-February112019001