R. v. Forbes, 2009 ONCA 257

ENDORSEMENT

1The appellant raises three issues on his appeal against conviction.

2The first is that because the trial judge, who at one point conducted a preliminary inquiry in this case, made two errors that were corrected by the Superior Court, his decision should not be accorded the usual deference on appeal. The second is that the trial judge did not adequately consider the frailties of the identification evidence and, in that context, misapprehended part of the evidence in reaching the conclusion that he was satisfied beyond a reasonable doubt that the appellant was one of the perpetrators of the home invasion. The third ground of appeal is that the reasons of the trial judge are inadequate for appellate review. We would not give effect to these grounds.

3First, the fact that judges are corrected at times on appeal does not affect the deference that is to be accorded to their judgments.

4Second, the trial judge did make a clerical error when he recorded the appellant’s tattoo as “Z.K.B.” instead of “E.K.B.”. However, he made no error in using the tattoo as part of the identification evidence because the gold tooth covers found in the appellant’s pocket had the same initials “E.K.B.” as the tattoo, thereby indicating that the gold tooth covers belonged to the appellant. The gold teeth were an important identifying feature of the perpetrator along with the description, his clothing and the evidence of Ruth Calladine that she recognized the voice of “Mega”, who was identified by his girlfriend Misty, as the appellant.

5Third, the reasons of the trial judge are brief but adequate. He gave the co-accused Roberts the benefit of the doubt because of the problems of identification, but he was satisfied beyond a reasonable doubt of the identification of the appellant.

6In his reasons on committal of the original three accused, the trial judge referred to the case as a weak one. In the end, he convicted only the appellant and not on all counts. There is therefore no inconsistency in his dispositions.

7The appeal is dismissed. The sentence appeal was abandoned.