Court of Appeal for Ontario
Judges: Laskin, Sharpe and Cronk JJ.A.
Between:
Her Majesty the Queen
Respondent
and
Joshua Read
Appellant
Counsel:
J. Scott Cowan, for the appellant
Dena Bonnet, for the respondent
Heard: November 30, 2009
On appeal from the conviction entered on December 7, 2007 by Justice Ernest Loukidelis of the Superior Court of Justice, sitting with a jury.
APPEAL BOOK ENDORSEMENT
1Crucial to the trial judge’s finding of guilt was his reliance on the identification evidence of the complainant. The procedure used to identify the appellant was seriously flawed. Although the appellant’s request to have the complainant identify him may explain what happened, it does not excuse the identification, which took place in the holding cells.
2In our view, therefore, the conviction cannot stand. However, we would substitute a new trial, not an acquittal, because there is evidence on the record, not referred to by the trial judge, that might sustain a conviction.
3Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.