DATE: 20060515

DOCKET: C41267

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOHN THOMAS HAYDEN (Appellant)

BEFORE:

WEILER, ROSENBERG and BLAIR JJ.A.

COUNSEL:

Michael W. Lacy

for the appellant

Christine Tier

for the respondent

HEARD & RELEASED ORALLY:

May 11, 2006

On appeal from conviction by Justice Paul M. Forestell of the Superior Court of Justice, sitting with a jury, dated May 29, 2003 and sentence imposed June 25, 2003.

E N D O R S E M E N T

[1] The appellant’s only ground of appeal from the convictions for murder and attempted murder is that the trial judge misapprehended the evidence with respect to identification and failed to provide a special instruction concerning the identification evidence from the neighbours.

[2] The Crown relied upon the neighbours’ evidence to support the victim’s direct evidence that the appellant was the assailant. The appellant submits that since two neighbours picked out the photos of other persons as possibly being the person in the area the night of and the day before the murder, the trial judge should have reviewed this evidence in greater detail and given a modified no identification instruction. No objection was taken at trial by experienced counsel. This was not a case where the witnesses identified someone else. The witnesses merely picked photographs of other persons who may have been the person in the area. While a fuller review of this evidence would have been appropriate, it was not sought by the appellant. We are satisfied that this was not a case requiring a special instruction. The standard instructions to which no objection was taken on appeal were adequate in the circumstances.

[3] The appellant appeals the parole ineligibility of fifteen years on the conviction for second degree murder. The trial judge found that the appellant killed the deceased to eliminate a witness to the attempted murder. This was a fair inference from the facts and was an extremely aggravating feature as were the brutality of the attack and that the appellant broke into the victim’s home and committed the crimes. There was an element of planning. The appellant took steps to attempt to locate the victim of the attempted murder and then watched that location for at least two days.

[4] The trial judge made no error in principle. He gave extensive and cogent reasons for increasing the parole ineligibility. The fifteen years parole ineligibility was within the appropriate range given the serious aggravating circumstances of the offence and despite the appellant’s lack of any prior record.

[5] Accordingly the appeal from conviction and from the parole ineligibility is dismissed.

Signed: “K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“R.A. Blair J.A.”