



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 counsels
    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 10
th
, 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. Im
    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
    werent 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 didnt
    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 dont really pay attention,
    youre playing your game, youre hit by this person, youre 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 judges analysis on count 9.  Central to that analysis was
    the trial judges 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 judges
    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 assailants face during the assault, and neither witness was shown a
    photo line-up. In these circumstances, Ms. Thibodeaus 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. Gleasons 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 Kellys 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] 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.


