COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. PERRY COATES (Applicant)
BEFORE: OSBORNE A.C.J.O., DOHERTY and SIMMONS JJ.A.
COUNSEL: Michael DeRubeis
for the appellant
Amy Alyea
for the respondent
HEARD: October 27, 2000
On appeal from the conviction imposed by Justice John Ritchie dated January 31, 2000 and the sentence imposed on March 6, 2000.
E N D O R S E M E N T
1The only issue on this appeal is whether the convictions can be said to be unreasonable. The trial judge convicted and the summary conviction appeal court affirmed the convictions.
2It is common ground that convictions based solely on the in-court identification evidence of the two victims would not be reasonable.
3The summary conviction appeal court judge found that there was sufficient confirmatory evidence to render the convictions reasonable. He said:
There are two other pieces of evidence to consider. At trial both victims stated that the attacker’s female companion addressed the attacker by the name Perry. The accused’s name is Perry. There is no record that the victims gave this name to the police the day of the assault. They did manage to get a licence number for the car driven by the attacker and that information, and indeed no other, led to the accused. [Emphasis added.]
4We agree with the summary conviction appeal court judge that the evidence concerning the first name of the assailant was evidence that was capable of confirming the identification evidence.
5There was no evidence as to how the licence number led the police to the appellant. It could have done so in various ways, some of which would tend to confirm the identification evidence and some of which would not. Presumably, the Crown could have led evidence as to how the licence plate number led the police to the appellant but chose not to do so. Without that evidence, the fact that the licence number led the police to the appellant could not support the identification evidence. The court cannot fill the gaps in the Crown’s case.
6There were problems with the identification evidence. While the evidence that the appellant and the assailant were both named Perry provides some support for the identification evidence, it does not lift the verdict across the reasonableness threshold.
7We grant leave to appeal, allow the appeal, quash the convictions, and enter acquittals.
“C.A. Osborne A.C.J.O.”
“Doherty J.A.”
“J. Simmons J.A.”