COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keays, 2007 ONCA 223

DATE: 20070329

DOCKET: C45227

RE: HER MAJESTY THE QUEEN (Respondent) – and – TROY ALLAN KEAYS (Appellant)

BEFORE: MOLDAVER, GILLESE and LaFORME JJ.A.

COUNSEL: Irwin Koziebrocki For the appellant

Elise Nakelsky For the respondent

HEARD & ENDORSED: March 27, 2007

On appeal from conviction and sentence by Justice Paul Rivard of the Superior Court of Justice dated January 18, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] Despite Mr. Koziebrocki’s able argument, we are not persuaded that the trial judge failed to give adequate reasons for accepting the evidence of the two complainants, despite the frailties in their testimony. The trial judge was fully familiar with their evidence. He was also alive to aspects of the complainants’ testimony that he disbelieved. He was, however, entitled to believe all, part or none of their evidence and on the critical point i.e. whether the appellant was present and participated in the home invasion, he was satisfied that the complainants were telling the truth.

[2] The trial judge’s reasons made it clear that he was alive to the critical issue in the case. As he observed, at p. 231, “The defence submits, however, that the evidence of Brock and Chet Ritchie is not credible, not sufficiently reliable to prove, beyond a reasonable doubt, that Mr. Keays was involved in the home invasion”. After setting out the critical issue, the trial judge addressed problems in the complainants’ evidence and he was satisfied, after listening to their testimony and observing their demeanour on the witness stand, that the difficulties with their evidence did not leave him in doubt about the appellant’s involvement and their evidence that was directed to that.

[3] In that regard, the trial judge found that the evidence of the complainants was consistent and mutually corrobative.

[4] In so concluding, we are satisfied that he considered and rejected the suggestion of collusion.

[5] On that issue, in his reasons, the trial judge accepted Brock Ritchie’s evidence that he was persistent in seeking repayment of the monies owed by the appellant but he was not angry or threatening. This hardly supports the suggestion that he had a motive to falsely implicate the appellant.

[6] He also noted that the police arrived shortly after the 911 call and that Chet Ritchie provided the appellant’s name to the police in the absence of his brother Brock, who by this time had been taken to the hospital. We note as well that prior to the arrival of the police, Brock testified that he was injured and almost passed out. Hence, he was unlikely to have engaged in collusion under the circumstances.

[7] In the end, while we agree that the trial judge could have been somewhat more fulsome in his reasons, we believe that the reasons, read in the context of the record, were adequate, both to enable the appellant to understand why he was convicted and to enable appellate review.

[8] As for sentence, the crimes committed by the appellant were very serious. The complaints were threatened at gunpoint and held hostage in their own home for over an hour. At the end of the event, just before the appellant and his accomplices left, the appellant poured alcohol over the complainants and threatened to set them on fire. This hardly suggests that he was an unwilling participant; rather, it speaks to him as the instigator.

[9] The trial judge also took into account that the home invasion here was “not a home invasion on a family or a little old lady or people who generally are law-abiding citizens” and he considered that in arriving at the sentence he did (six years less fourteen months for pre-trial custody and time spent under house arrest while on bail). In the circumstances, we are not persuaded that the sentence imposed was manifestly unfit; nor did the trial judge commit any errors in principle in his reasons.

[10] We recognize that the appellant has taken strides to rehabilitate himself and his progress is encouraging. We also acknowledge that he has good family support and this will bode well for his future. Those, however, are matters for the Parole Board and we are certain that they will be taken into account when the time arrives.

[11] In the result, the appeal for conviction is dismissed. Leave to appeal sentence is granted but the appeal for sentence is dismissed.