DATE: 20050526

DOCKET: C41187

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JEFFREY RICHARDSON (Applicant/Appellant)

BEFORE:

WEILER, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Joseph Wilkinson

for the appellant

Kenneth L. Campbell

for the respondent

HEARD & RELEASED ORALLY:

May 18, 2005

On appeal from the conviction entered on May 6, 2003 and the sentence imposed on May 16, 2003 by Justice Linda M. Walters of the Superior Court of Justice, sitting without a jury.

E N D O R S E M E N T

[1] The appellant was convicted of two counts of robbery, possession of a weapon, wearing a disguise and one count of possession of a stolen vehicle. He was sentenced to six years imprisonment. He appeals his conviction, seeks leave to appeal his sentence and if leave is granted appeals his sentence.

[2] At the outset of oral argument, the ground of appeal alleging that the verdict was unreasonable was abandoned.

[3] The issue on this appeal is whether the trial judge misapprehended the defence position when she stated that the appellant conceded he was a participant in the robberies and that the only issue was whether he was too drunk to have the requisite mens rea. The defence did not concede that the appellant was a participant in the robberies. As a result, the appellant alleges the trial judge failed to apply the evidence and to consider whether the actus reus of robbery was satisfied.

The Background to the appeal

[4] At 12:40 a.m. on January 8, 2002, three men robbed a Travel Lodge in Burlington. The men took $700, Ms. Rose’s engagement ring, and an oxygen tank from under the front desk. Ms. Rose saw a dark van drive away.

[5] At 1:45 a.m. on the same day, three men entered a nearby Esso station. Their mouths and noses were masked. Two men approached Mr. Katic, the only employee on site, holding butcher knives. They demanded money and cigarettes.

[6] At 2:10 a.m. Officer Foley and Constable Stone were driving along the route of the robberies, warning store clerks. They saw a dark van in the Tim Horton’s parking lot. Officer Foley approached the men and asked who owned the van. A white man in the driver’s seat, named Fox, replied that he did not know because the appellant had picked him up. The appellant said that a friend of his owned the van. Officer Foley saw cigarettes, rolls of coins, and an oxygen tank in the van. The officers later learned that the van was stolen. The officers arrested four men: Marc Fox (a white man), a young offender named D. (a white man), a young offender named M. (a black man), and the appellant (a white man). They searched the van and found various other items including a loaded pellet gun and three red bandanas. At the police station, they searched the appellant and found $290 including a $100 bill from one of the robberies and a faded white and blue bandana. The police recovered money from all of the suspects and found the stolen engagement ring in Mr. Fox’s holding cell. The three co-accused pled guilty before the appellant’s trial.

[7] Officer Foley stated that the appellant appeared somewhat intoxicated and stumbled. His eyes were bloodshot and he slurred his speech. However, he understood and answered Officer Foley’s questions. Officer Stone noted that the appellant was intoxicated and swayed as he stood but stated that the appellant had no difficulties communicating. Officer Koprich escorted the appellant to the Halton police. He described himself and another police officer as holding both of the appellant’s arms. Neither made notes about the appellant’s level of intoxication. Officer Traub took custody of the appellant at 3:14 a.m. He stated that if he and other officers had not held the appellant, he would have fallen over. The appellant was non-responsive in the car. When the appellant arrived at the police station, at 3:34 a.m., he had difficulty speaking, although he provided his vital information.

[8] At 11:23 a.m. Sergeant Wilson spoke to the appellant, who seemed fine. The appellant claimed that he did not remember the night before and that he had bumped his head at the time of the arrest. The officers noted that the appellant was still under the influence of alcohol and drugs. When Sergeant Wilson re-entered the room, the appellant was asleep on the table. Upon waking, the appellant said that he had bumped his head when he was handcuffed and that he had been punched out in a bar a few weeks earlier. Sergeant Wilson contacted the Emergency Medical Force who found that the appellant had a fractured skull. They took the appellant to the hospital.

[9] The appellant testified that he had a criminal record that consisted mostly of property offences. He was living with Fox and then in a trailer while working as a carpenter. His boss gave him $1,500-$1,800, so he spent January 7 celebrating. He took Tylenol 3, smoked marijuana, drank all day, and went out to get more beer. The appellant met Fox and they went to an apartment. The appellant smoked more marijuana, drank a flask of hard liquor, and took a handful of pills. The next thing he remembered was turning the wrong way on Lakeshore Road. Fox said that he had to do something. The appellant stated that he did not know where the van came from and thought that Fox was taking him home. Fox gave him more pills. The appellant’s next memory was waking up in the hospital. He had no recollection of being arrested or of going to the police station. He did not know where his wallet went and did not know how various items got into his pockets.

[10] In summary, the defence submission was that at the time of the two robberies The appellant did not go into the Travelodge and Esso gas bar that were robbed because he was passed out in the van.

[11] Marc Fox testified that he had given the appellant some Tylenol III tablets in the early afternoon (ie. 1:00 or 2:00 p.m.), and some of his girlfriend’s Lorazepam pills in the early evening (ie. 5:00 or 5:30 p.m.). At some point during the day, Mr. Fox asked the appellant if he wanted to participate in the planned robbery and, while initially somewhat reluctant, he eventually agreed to be involved in the robbery. At approximately 5:30 or 6:00 p.m. one of the young offenders (D.) stole a mini-van from a kiosk, and they all drove to Burlington. During the trip Mr. Fox gave the appellant “more Lorazepam”. According to Mr. Fox, both he and the appellant remained inside the van while the two young offenders robbed both the Travelodge Hotel and the Esso gas bar. During each robbery, Mr. Fox stayed “keeping six” in the van, while the appellant lay asleep on the floor. While they had initially only planned to commit one robbery, they decided to commit the second robbery when they did not get enough money from the first one.

[12] Dr. Rosenbloom testified that he found opiates, cannabinoids, and trace amounts of salicyclates, acetaminophen, and ethyl alcohol in the appellant’s blood stream. The screen was qualitative, not quantitative. These drugs would affect the appellant’s memory and would make him drowsy. He stated that the drug screen was not inconsistent with the drugs being taken around 2 a.m. although if they were, the appellant would remember planning the robbery.

[13] At the outset of her reasons the trial judge stated:

It is conceded by all that the only real issue for the Court to determine is whether or not the Crown has proven beyond a reasonable doubt that Mr. Richardson had the specific intent required to constitute the crime charged taking into account his consumption of alcohol and drugs. Otherwise, the defence concedes that the evidence overwhelmingly supports an inference of Mr. Richardson’s participation and culpability with respect to each of the offences charges.

[14] Based on this and other comments made by the trial judge in her reasons, the appellant submits that the trial judge misapprehended the defence position and she failed to apply the evidence to the issue of whether the appellant had actually committed the robberies.

Decision

[15] The trial judge’s comments above basically repeat the position articulated by the defence. The defence stated:

Were it not for the fact that Lorazepam was confirmed as having been consumed by Mr. Richardson, the conclusion that would arise from the circumstances would obviously be that Mr. Richardson knew that a stolen vehicle was involved, knew that other people were present, knew that weapons were present, knew that proceeds of crime from the two incidents were present and therefore would be criminally culpable as there would be an insurmountable inference of his participation criminally in the required manner in these events.

[16] In effect this was a shorthand way of saying that if the appellant was not intoxicated he was guilty at a minimum of being a party to the robbery and the trial judge recognized this. It was not enough for the defence to contend that the appellant did not go into the Travelodge hotel and Esso gas bar and commit the robberies. Given the evidence of the appellant’s participation in the robbery, both before and after, even if he had not gone into the two premises, he would be guilty as a party to the robbery but for his defence of intoxication. The trial judge did not mischaracterize the concession made by the defence and misapprehend the issue. The trial judge found that the appellant was not intoxicated and she did not have a reasonable doubt about it. Further the trial judge also found that the appellant actually went in and committed the robberies. That was a finding that was open to her on the evidence.

[17] The appeal as to conviction is dismissed

[18] With respect to the appeal as to sentence, the appellant submits the trial judge erred when she failed to give the appellant enhanced credit on a two-for-one basis for his pretrial custody without providing reasons for departing from the general practice. At trial, the Crown acknowledged that there was no good reason not to credit the appellant on a two-for-one basis for pre-trial custody. The appellant submits he should therefore have received credit for two years and nine months pretrial custody instead of the two years credit the trial judge gave him.

[19] It would have been desirable as part of the obligation to give reasons from both Sheppard and s. 726.2 of the Code for the trial judge to explain why she did not give two for one credit for the appellant’s pretrial custody in light of the Crown’s position that that was an appropriate credit. Nevertheless the global sentence she imposed was fit and we would not interfere with it.

“K. M. Weiler J.A.”

“S. T. Goudge J.A.”

“K. Feldman J.A.”