Lakefield man appealing murder conviction
A Lakefield man sentenced to life in prison for kidnapping and fatally stabbing his ex-girlfriend in a grassy field a few hundred metres from his Selwyn Township home nearly seven years ago is asking for his murder conviction to be quashed and to get a new trial.
The appeal by Robert McGregor, 32, was made official Feb. 1 as a 59-page factum outlining the grounds of the application was filed with the Ontario Court of Appeal. Lawyers learned Thursday oral submissions in the case will be heard June 28 and 29.
McGregor was found guilty of the firstdegree murder and kidnapping of Joanne MacKenzie, 23, of Apsley, on April 20, 2015 following an eight-week jury trial before Madam Justice Anne Mullins in Peterborough Superior Court of Justice.
McGregor had filed an “inmate notice of appeal,” as required within 30 days of his sentencing, which was held the day after the six-man, six-woman jury made the decision following 4 1/2 hours of deliberation and hearing evidence from 42 witnesses in five weeks.
The process of filing the appeal required more time than most others because of its complexity – in fact, special permission was needed in order to file a factum of its length, defence lawyer Tyler Smith of Hicks Adams LLP said.
Senior appellate lawyer Richard Litkowski of the Toronto firm is handling the appeal, but should a new trial be ordered, Smith said he would likely once again represent McGregor – who is currently serving his sentence at a federal prison out of the province.
In the factum, Lotkowski estimates he will need three hours to make his submissions. The two days scheduled to argue the appeal is significant, Smith pointed out, because the appeal court often hears two or three matters in a single day.
The appeal alleges the trial judge erred in five different ways.
First, Mullins failed to instruct the jury that “continuing domination” from the time of the kidnapping to the time of the killing was needed for a constructive first-degree murder conviction, Litkowski wrote on page 22 of the factum.
McGregor admitted to killing MacKenzie in a field on Preston Road, just around the corner from his 10th Line of Smith home, after he picked her up at the George St. Tim Hortons in the city to discuss issues relating their then-five-yearold daughter.
He denied planning the incident, stating that in the middle of a serious argument, she came at him with a small folding knife she was known to carry in her purse before he turned the weapon on her.
The woman was stabbed 15 times – four times in the chest, three times in the back, three times in the neck, four times in her left arm and her throat was cut.
The second and third grounds of the appeal relate to post-offence conduct.
The judge provided contradictory directions on the issue – both instructing the jury not to consider post-offence conduct in assessing planning and deliberation and inviting them to rely upon a piece of post-offence conduct in determining that issue, he wrote.
The judge also invited the jury to rely upon post-offence conduct in assessing whether the appellant was provoked (something that can reduce a murder charge to manslaughter), even though the Crown conceded it was irrelevant to that issue, the factum states.
The trial judge also refused to include a separate box for provocation in the decision tree, Litkowski wrote as the fourth point.
The appellant argues that box is needed to ensure the jury understood that the issue of whether McGregor was provoked was a completely separate issue from whether he had the mens rea – guilty knowledge and wilfulness – to commit murder.
“The refusal to add a separate box added to the unfairness of the trial,” the factum states.
Finally, the judge failed to correct the Crown’s closing address, even after finding that “it went over the line,” Litkowski wrote.
The Crown’s closing submissions invited the jury to speculate, included evidence not before jurors and invited the jury to rely upon a prior consistent statement to bolster a witnesses’ reliability and, as recognized by the judge, was inflammatory, the factum states.
The Crown has not yet had the opportunity to file materials in response to the factum that will provide the basis for prosecutors’ oral submissions in June.
NOTE: View the entire appeal document online at www.peterboroughexaminer.com .