Court of Appeal for Ontario

Citation: R. v. Read, 2009 ONCA 848

Date: 20091201

Docket: C48662

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

[1] Crucial 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.

[2] In 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.

[3] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.