



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Richardson, 2019 ONCA 996

DATE: 20191217

DOCKET: C65285

Brown, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lance Richardson

Appellant

Jeffrey Carolin and Nicolas Rouleau, for the appellant

Linda Shin, for the respondent

Heard and released orally: December 16, 2019

On appeal from the convictions entered on June 21, 2017 by
    the Honourable Alfred J. OMarra of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2017 ONCA 3779.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of robbery (
Criminal Code
,
    s. 343), one count of use of an imitation firearm in the commission of an
    indictable offence (s. 85(2)(a))
[1]
,
    two counts of assault causing bodily harm (s. 267(b)), and one count of
    threatening to cause death (s. 264.1(1)(a)). He received a global sentence of
    four years imprisonment.

[2]

The case arose from the violent robberies of a man and a woman who were
    having a late night picnic behind the Yorkdale Subway Station in Toronto. There
    were two masked assailants. One carried an imitation firearm, while the other wielded
    a cleaver-like knife. They assaulted and threatened both victims. The trial
    judge was satisfied beyond a reasonable doubt that the appellant was one of the
    assailants.

[3]

After he was arrested, the appellant protested his innocence and pointed
    to voicemail messages exchanged on the Voxer App as proof that: (1) he was not
    present when the victims were robbed; and (2) that another named individual was
    the second assailant. A police officer listened to the messages but found them
    to be unhelpful to her investigation.

[4]

The appellant testified at trial and referred to these messages.
    However, at the time, he no longer had access to his phone and the messages
    were unavailable. The trial judge rejected the appellants evidence, finding
    that it did not raise a reasonable doubt.

[5]

The appellant appeals his convictions. He initially raised numerous
    grounds of appeal. However, he now challenges his conviction solely on the
    basis of an application to adduce fresh evidence. The core of the fresh
    evidence is an expert forensic report that authenticates the Voxer messages. Properly
    authenticated, they establish that the appellant was not one of the assailants.

[6]

The Crown consents to the admission of this fresh evidence. She
    acknowledges that it is relevant, credible and could reasonably have been
    expected to affect the result at trial when considered with the other trial
    evidence. The Crown also concedes that the appellants convictions amount to a
    miscarriage of justice and she invites this court to set aside the convictions
    and enter acquittals.

[7]

We accept the Crowns reasonable concessions. Accordingly, we admit the
    fresh evidence, set aside the convictions, and enter acquittals on all counts.

[8]

We thank all counsel for their diligence and professionalism in working
    together to correct this wrongful conviction.

David Brown J.A.

Grant Huscroft J.A.

Gary Trotter J.A.





[1]

In his reasons for judgment, at para. 1, the trial judge notes
    that there were two counts under s. 85(2)(a) of the
Criminal Code
. The
    Indictment contains just one  Count #3.


