Court File and Parties
COURT OF APPEAL FOR ONTARIO
SIMMONS AND MACFARLAND JJ.A. AND WATT J. (AD HOC )
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JOHN ANDRILOVIC
Applicant/Appellant
Counsel: Robert Sheppard for the applicant/appellant Paul G. McDermott for the respondent
Heard and endorsed orally: October 30, 2007
On appeal from the conviction entered by Justice William A. Jenkins of the Superior Court of Justice sitting without a jury dated March 24, 2006 and from the sentence imposed by Justice Jenkins dated September 5, 2006.
APPEAL BOOK ENDORSEMENT
1The appellant was convicted of robbery and unlawful confinement. He was sentenced to six months imprisonment on each count to be served concurrently and to one year of probation. He appeals from conviction and seeks leave to appeal sentence.
Conviction appeal
2The appellant submits that the trial judge erred by relying on the complainant's credibility as the determining factor in assessing the reliability of the complainant's eyewitness identification evidence and by failing to take account of evidence that was capable of undermining the reliability of the identification. He also submits that the finding of guilt was unreasonable.
3We reject these submissions. In his reasons, the trial judge identified the reliability of the identification evidence as the issue in the case and referred to defence counsel's submissions outlining reliability concerns. Having taken account of these factors, the trial judge was satisfied that the complainant correctly identified the appellant as one of his attackers taking account of various matters, including the fact that this was a case of recognition rather than identification of a stranger and the existence of other evidence to support the identification, including evidence of a motive, and access to a key.
4The conviction appeal is dismissed
Sentence appeal
5In relation to the sentence appeal, particularly having regard to the fact that these offences involved a home invasion, in our view, if anything, the sentence imposed by the trial judge was lenient. Further, the appellant has not identified an error in principle.
6Accordingly while leave to appeal sentence is granted, the sentence appeal is dismissed.
