DATE: 20030730
DOCKET: C39267
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Mara B. Greene, for the appellant
Respondent
- and -
WILLIAM FREDERICK CUMING
Laura Hodgson, for the respondent
Appellant
Heard: July 14, 2003 Released Orally: July 14, 2003
On appeal from the convictions imposed by Justice Norman D. Dyson of the Superior Court of Justice, sitting without a jury, dated July 19, 2002.
BY THE COURT:
[1] The appellant’s main submission is that the verdicts were unreasonable. It seems to us that to accept that submission we must conclude that the trial judge could not rely on Ms. Tobin’s identification of the appellant. We think, however, that despite the poor quality of the photograph, it was open to the trial judge to rely on her identification. This was not a case of a stranger identifying the appellant but of an identification made by someone who had met and been with him several times in the past. Given that Ms. Tobin recognized someone she had seen before, the trial judge was entitled to consider her identification as a strong piece of evidence in support of the verdicts. There are other pieces of circumstantial evidence that also supported the verdicts. They included the cell phone records, the appellant’s comment to the police in Texas and the store employees’ permitting the robber to enter the store at closing. Taken together, this evidence reasonably supported the verdicts.
[2] The appellant’s other submission is that the reasons do not comply with the Supreme Court’s judgment in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), because they do not come to grips with the main planks of the defence: the appellant’s alleged alibi and his accent. Although the reasons could have been more detailed, we think that they are adequate enough to permit appellate review. We think it implicit in those reasons that the trial judge did not accept the store employees’ evidence that the appellant was in the store on one of the two Thursdays before the robbery.
[3] As for the appellant’s alleged accent, the store employee who mainly dealt with the appellant was not definitive about whether he had an accent, and the trial judge was unable to make a first hand assessment as the appellant did not testify.
[4] For these brief reasons, the appeal is dismissed.
RELEASED: July 30, 2003
“JIL”
Signed: “John Laskin J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”