R. v. Richards (L.), (2004) 186 O.A.C. 378 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: March 03, 2004
• Jurisdiction: Ontario
• Citations: (2004), 186 O.A.C. 378 (CA)

R. v. Richards (L.) (2004), 186 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MY.071

Her Majesty the Queen (respondent) v. Lenford Richards (appellant)

(C37223)

Indexed As: R. v. Richards (L.)

Ontario Court of Appeal

Feldman, Sharpe, JJ.A. and McCombs, J.(ad hoc)

May 21, 2004.

Summary:

Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion. He appealed his convictions.

The Ontario Court of Appeal, in a decision not reported in this series of reports, allowed the appeal and ordered a new trial. Richards was found guilty. He appealed his convictions.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion - He appealed his convictions - Richards allegedly used the aliases "Steve" and "Romy" - Richards argued that the evidence regarding his use of the aliases was unreliable - Garnett, one of the witnesses, used the alias "Steve" 29 times in her interview with the police, yet used the alias "Romy" during her testimony at trial - The issue was the real possibility that her recollection had been tainted by a police officer - The Ontario Court of Appeal held that "it was incumbent upon the trial judge to review the conflicting alias evidence and to relate it to the issues from the perspective of the Crown and defence" - The trial judge's review of the evidence was unhelpful and unbalanced - The court ordered a new trial - See paragraphs 34 to 39.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion - He appealed his convictions, arguing that the charge to the jury regarding identification was inadequate - Garnett, one of the victims, testified that the robber was a clean shaven man with short hair - Richards, his mother and former wife testified that at the time of the robbery, he had a mustache, beard and long hair - The Ontario Court of Appeal held that an eyewitness statement that contained dissimilarities was either valueless or exculpatory and the judge failed to convey the significance of this issue to the jury - The court ordered a new trial - See paragraph 30.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion - He appealed his convictions, arguing that the charge to the jury regarding identification was inadequate - Pacsai and Stanton, two of the victims, failed to identify Richards in a photo line-up six weeks after the robbery but identified Richards at the courthouse - The Ontario Court of Appeal held that the trial judge was obliged to draw the jury's attention to the witnesses' failure and to emphasize that it seriously undermined their already tenuous identification evidence - The court ordered a new trial - See paragraph 31.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion - He appealed his convictions, arguing that the charge to the jury regarding identification was inadequate - When Pascai, one of the victims, was asked to identify the black suspect in a photo line-up, she was unable to do so because "they all look[ed] the same" - The Ontario Court of Appeal held that when cross-racial identification was an issue, it might be appropriate to caution the jury about the difficulties that can present for a particular witness - The court ordered a new trial - See paragraph 32.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - Richards was found guilty of forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion - He appealed his convictions, arguing that the charge to the jury regarding identification was inadequate - In his charge to the jury, the trial judge told the jury that witnesses can be honest and convincing yet be mistaken - The Ontario Court of Appeal held that "instead of mentioning certainty as a measure of reliability, it was incumbent upon the trial judge to explain the tenuous relationship between the confidence level of the identification witnesses and the accuracy of their evidence." - The court ordered a new trial - See paragraph 33.

Cases Noticed:

R. v. Hibbert (K.R.) (2002), 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 163 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 28].

R. v. Tebo (K.) (2003), 172 O.A.C. 148; 175 C.C.C.(3d) 116 (C.A.), refd to. [para. 28].

Chartier v. Quebec (Attorney General) (1979), 27 N.R. 1; 48 C.C.C.(2d) 34 (S.C.C.), refd to. [para. 30].

R. v. Quercia (1990), 41 O.A.C. 305; 60 C.C.C.(3d) 380 (C.A.), refd to. [para. 30].

R. v. Boucher (G.) et al. (2000), 134 O.A.C. 82; 146 C.C.C.(3d) 52 (C.A.), refd to. [para. 30].

R. v. McIntosh (O.) (1997), 102 O.A.C. 210; 117 C.C.C.(3d) 385 (C.A.), refd to. [para. 32].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 39].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 39].

R. v. Maugey (C.) (2000), 133 O.A.C. 255; 146 C.C.C.(3d) 99 (C.A.), refd to. [para. 39].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 96 C.C.C.(3d) 1, refd to. [para. 44].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1; 128 C.C.C.(3d) 1, refd to. [para. 45].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 45].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 92 C.C.C.(3d) 423, refd to. [para. 45].

R. v. Hieronymi (F.) (1995), 84 O.A.C. 321; 101 C.C.C.(3d) 31; 42 C.R.(4th) 69 (C.A.), refd to. [para. 45].

R. v. Hachez - see R. v. Hieronymi (F.).

Counsel:

Jamie Klukach, for the Crown;

James Lockyer and Leslie Maunder, for the accused.

This appeal was heard on March 3, 2004, by Feldman and Sharpe, JJ.A., and McCombs, J.(ad hoc), of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by McCombs, J.(ad hoc), on May 21, 2004.