COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Peters, 2014 ONCA 402
DATE: 20140516
DOCKET: C55291
Hoy A.C.J.O., MacPherson and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
James Richard Peters
Appellant
Frank D. Crewe, for the appellant
Karen Papadopoulos, for the respondent
Heard: May 2, 2014
On appeal from the convictions entered by Justice Paul F. Lalonde of the Superior Court of Justice dated February 11, 2011.
MacPherson J.A.:
[1] The appellant was charged with multiple counts relating to three violent incidents at three separate houses in Kingston over a six-day period. In two of the incidents, two armed and masked men broke into two houses and stole property. In the third incident, a man assaulted another man in his home and departed. Several hours later, a man returned to the same home with a shotgun and shot the front door as the victim slept.
[2] At trial, the sole issue was whether the appellant was one of the culprits in the first two incidents and the culprit in the third incident.
[3] The trial judge found that the appellant had committed the offences relating to one of the home invasions and the offences relating to the assault/firing at the front door incident. He acquitted the appellant of the offences relating to the second home invasion. He also acquitted a co-accused of all charges relating to both home invasions.
[4] The appellant received a global sentence of 12 years’ imprisonment less 2½ years for time served.
[5] The appellant appeals his convictions on three grounds. He initially appealed his sentence, but abandoned this component of his appeal.
(1) The assault offence and identification evidence
[6] The appellant contends that the trial judge misdirected himself with respect to the identification evidence of Bianca Thibodeau and the complainant, Tyler Roberts, relating to the third violent incident, namely, the assault on Tyler Roberts in his home.
[7] The trial in this case lasted five days. Twelve witnesses testified. There were three incidents, two home invasions and an assault in a private home. There were two accused for the two home invasions and the appellant was the sole accused in the third incident, the assault on Tyler Roberts.
[8] Two days after the trial, the trial judge delivered comprehensive reasons for judgment. After reviewing the testimony of the twelve witnesses, the trial judge analyzed, and reached a decision, on each of the 12 counts in the indictment.
[9] On count 9, which applied only to the appellant, the trial judge reasoned:
I find that James Richard Peters is guilty of count number nine of assaulting Tyler Roberts contrary to s. 266 of Criminal Code of Canada. I accept without hesitation the evidence of Bianca Thibodeau who knew the accused through Mary Leeder, who hung around Tyler Roberts’ apartment at 193 York Street in Kingston. She adamantly refused defence counsel’s suggestion that the man she saw come in the apartment, hit Mr. Roberts about the head and leave could have been someone else other than Mr. Peters. I accept Mr. Roberts’ evidence that he was hit six or seven times about his head on December 10th, 2009 while sitting on a couch in his apartment. He stated during his examination in-Chief that it was Mr. Peters whom he knew that had hit him, and later in cross-examination said that he was not 100 percent sure that it was Mr. Peters that had hit him. I’m satisfied beyond a reasonable doubt that Mr. Peters is guilty of the assault. Tyler Roberts never once looked at the accused. It was apparent to me that his fear of Mr. Peters made him less than truthful during his cross-examination. [Emphasis added.]
[10] The appellant contends that the trial judge misapprehended the evidence in two important respects in this passage. The trial judge said that Bianca Thibodeau “knew the accused” and that the accused was a person “whom [the complainant] knew”. Both of these descriptions, says the appellant, are incorrect.
[11] I agree with this submission.
[12] Bianca Thibodeau was either 15 or 16 years old when she saw the assault on Tyler Roberts in his home. She testified that the culprit arrived with Mary Leeder, assaulted Mr. Roberts very soon after his arrival, and then left. According to Ms. Thibodeau, the appellant was in the house “probably five minutes at the most.” Later in her examination in-chief, Ms. Thibodeau testified:
Q. Now with respect to Ricky Peters, prior to that day had you ever met Ricky Peters before?
A. No.
Q. After that day did you see Ricky Peters again?
A. No.
Q. Between that day and today have you seen Ricky Peters before?
A. Yeah, in court.
Q. And that was at the preliminary inquiry?
A. Yeah.
Q. Did you identify him then?
A. I believe so, yeah.
[13] On the cross-examination of Ms. Thibodeau, this exchange took place:
Q. Okay. And after this happened, when you ended up talking to the police you – did you ever go and see a line-up of people and identify who was the male that had been there that day?
A. No.
Q. And the police never gave you a series of photos, like a line-up of photos to take a look at to identify the male who was there that day?
A. No.
[14] Turning to Mr. Roberts, the complainant, he gave this testimony in cross-examination:
Q. And in fact, when you were introduced to this male it was the first time you had met him, correct?
A. Yeah.
Q. Okay, and is it fair to say, Sir, that you really weren’t paying a lot of attention to this new male who had just got there?
A. Yes.
Q. Okay, and you briefly looked at him but you didn’t study his face did you?
A. No.
Q. And after the fact, Sir, you were never given a photo line-up to look at, correct?
A. Nope.
Q. Okay. So he comes in, you don’t really pay attention, you’re playing your game, you’re hit by this person, you’re not really paying attention to his face and then he leaves?
A. Yeah.
Q. Is that a correct summation?
A. Yeah.
[15] In my view, these excerpts from the testimony of Ms. Thibodeau and Mr. Roberts undercut the trial judge’s analysis on count 9. Central to that analysis was the trial judge’s view that both of these witnesses had known the appellant before the night the assault took place. With respect to both witnesses, it is clear that this prior knowledge was an important factor in the trial judge’s decision to credit their testimony.
[16] In fact, neither witness had seen the appellant before that evening, the appellant was only in the house for about five minutes, the complainant was not looking at his assailant’s face during the assault, and neither witness was shown a photo line-up. In these circumstances, Ms. Thibodeau’s in dock identification of the appellant as the culprit and Mr. Roberts’ at best equivocal in dock identification are not, with respect, sufficient to ground a safe conviction of the appellant on count 9 of the indictment. Accordingly, I would allow the appeal on this ground.
(2) The first home invasion – an alternate suspect
[17] The appellant submits that the trial judge erred by not addressing the possibility that there was an alternate suspect for the first home invasion. The alternate suspect was Gordon Shelley. Three days after the home invasion, one of the victims of the home invasion, Barry Gleason, told the police that he was “99.9% sure” that one of the culprits was Gordon Shelley. In light of this, says the appellant, the trial judge had a duty to take the ‘alternate suspect’ scenario more seriously than he did.
[18] We are not persuaded by this submission. The trial judge considered Mr. Gleason’s testimony:
While testifying Mr. Gleason gave the impression of being an angry man. He attempted in vain to pin the home invasion on Gord Shelley who had been at Patricia Kelly’s apartment earlier in the summer of 2009. His bitterness skewed part of his evidence especially on identification.
I see no basis for interfering with this analysis.
[19] In addition, the testimony of Detective Clint Wills, which the trial judge described in his reasons for judgment, was strong evidence that Mr. Shelley was an implausible, if not impossible, suspect for a violent home invasion robbery. Detective Wills visited Mr. Shelley four days after the robbery and described him as “a decrepit man… he has a lot of medical complications… a colonoscopy bag… a lot of difficulty walking… on a lot of pain medication… a thin man, maybe 120, 130 pounds possibly.” This description could not support any realistic possibility that Mr. Shelley was one of the two intruders who engaged in the physical and violent activities that were part of the first home invasion robbery.
(3) The Vetrovec issue
[20] The appellant asserts that, although the trial judge instructed himself on the principles from R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, he did not sufficiently scrutinize the testimony of three unsavoury witnesses – Victor Green, Troy Corkey and Aaron Lee.
[21] I disagree. The trial judge was not unmindful of the need for caution in assessing the credibility of these witnesses and the reliability of their evidence. In the end, he chose to rely on parts of their evidence, especially as supported by other confirmatory evidence. He was entitled to do this.
DISPOSITION
[22] I would allow the appeal and enter a verdict of acquittal on count 9 of the indictment. In all other respects, I would dismiss the appeal. Since the sentence on count 9 was one year concurrent, the global sentence of 12 years’ imprisonment less 2½ years for time served remains the same.
Released: May 16, 2014 (“A.H.”)
“J.C. MacPherson J.A.”
“I agree. Alexandra Hoy A.C.J.O.”
“I agree. R.A. Blair J.A.”