Court File and Parties

CITATION: R. v. Ricketts, 2010 ONCA 820

DATE: 20101203

DOCKET: C51915

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Ricketts

Appellant

Michael Dineen, for the appellant

Susan Ficek, for the respondent

Heard and released orally: December 2, 2010

On appeal from the conviction entered by Justice Stong of the Superior Court of Justice, dated January 5, 2010 and the sentence imposed on February 19, 2010.

ENDORSEMENT

[1] The appellant was charged with several offences arising out of an armed robbery. That robbery was committed by three individuals. It was the Crown’s position that the appellant had not participated directly in the robbery, but had driven the two perpetrators to and from the scene of the robbery in his automobile.

[2] The Crown had a strong circumstantial case. The appellant testified. He indicated that he was at a party with the two perpetrators on the evening of the robbery in the town where the robbery occurred. He fell asleep for several hours. According to him, while he was asleep, the two perpetrators and a third person had used his car unbeknownst to him to commit the robbery and then returned to the party. The appellant and the two perpetrators then drove from the party back towards Toronto. According to the appellant, he had no idea that the robbery had occurred.

[3] Mr. Dineen, in his able submissions, raises one ground of appeal. He submits that the trial judge used the appellant’s exercise of his right to silence when he was arrested as a basis upon which to reject the appellant’s evidence.

[4] There was conflicting evidence as to whether the appellant in fact did remain silent at the time of his arrest. However, it is clear that the trial judge ultimately determined that, apart from giving a false name, the appellant did not offer any explanation for his whereabouts that evening.

[5] Mr. Dineen took the court to Crown’s counsel’s submissions at trial. It would appear that the Crown invited the trial judge to take the appellant’s silence upon his arrest into account when assessing the credibility of the exculpatory version of events testified to by the appellant.

[6] Having reviewed the trial judge’s reasons, we accept Mr. Dineen’s submission. There are three references in the trial judge’s reasons which, in our view, indicate that he used the appellant’s silence in assessing the credibility of the appellant’s testimony. Perhaps the clearest of those three references is the following:

... [I]t is equally incredible that upon being placed under arrest by Hueson and told that it was for robbery, he would, if innocent as he testifies at this trial, give the officer a false name instead of protesting his innocence. If he knew nothing about the robbery because he slept through it, why remain silent? Hardly the actions of a surprised innocent victim. [Emphasis added.]

[7] The appellant had a constitutional right to remain silent. The use of the appellant’s silence as a basis upon which to reject his trial testimony is offensive to the fundamental right to silence. It can only be characterized as a serious error in law.

[8] The Crown, however, submits that the curative proviso can be applied because of the overwhelming nature of the case. The Crown submits that on this evidence, a reasonable trier of fact, acting judicially, could only have convicted the appellant.

[9] The Crown’s case was indeed a strong one. The evidence established the following:

• The appellant and the two perpetrators of the robbery were together on the evening of the robbery, before the robbery, in the town where the robbery occurred. They drove there together in the appellant’s car.

• The two perpetrators and a third unidentified person were in the appellant’s car at the scene of the robbery, during the robbery and drove away from the robbery in the appellant’s car.

• About 20 minutes after the robbery, the appellant and the two perpetrators were seen driving toward the highway in the appellant’s car. The appellant and the two perpetrators were pulled over a few minutes later by the police. Property stolen in the robbery and the guns used in the robbery were found in the appellant’s car.

[10] In addition to the very strong circumstantial evidence, it must be said that the appellant’s evidence was far from credible. The version of events given by the appellant was, on its face, implausible. His evidence was replete with inconsistencies. The appellant also gave the police a false name when he and the perpetrators of the robbery were pulled over by the police shortly after the robbery.

[11] Having regard to the strength of the Crown’s case and the obvious weaknesses in the appellant’s exculpatory evidence, we are satisfied that no reasonable trier of fact could have come to any verdict other than guilty on the charges. Consequently, and despite the serious error committed by the trial judge, the curative proviso can be applied.

[12] The appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”