COURT OF APPEAL FOR ONTARIO
Simmons, van Rensburg and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nickolas Armacki
Appellant
Paul Calarco, for the appellant
Chris Chorney, for the respondent
Heard and released orally: November 24, 2015
On appeal from the conviction entered on November 22, 2013 and the sentence imposed on January 31, 2014 by Justice R. Reid of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1Following a judge alone trial, the appellant was convicted of break, enter and theft under $5,000. He was sentenced to six months’ imprisonment and 24 months’ probation.
2The appellant had worked at the victim’s home. The trial judge found that after a day of doing chores and then drinking in the victim’s backyard, the appellant returned to the victim’s home knowing the victim would be out, entered the home and stole various electronic equipment.
3The appellant appeals his conviction and seeks leave to appeal sentence.
4The appellant raises three issues on his conviction appeal.
5First, the appellant argues that the trial judge erred in failing to admit statements made by the appellant upon and soon after his arrest as spontaneous, exculpatory statements. We do not accept this argument.
6Concerning the utterance made upon arrest, although the trial judge’s ruling on the admissibility of the subsequent formal recorded interview statement seems to encompass that utterance, it is clear that evidence of this statement was admitted into evidence without objection and referred to by the trial judge in his reasons. As for the formal recorded interview statement, the trial judge made a finding it was not sufficiently spontaneous to warrant admission. This was a finding of fact which is entitled to deference in this court. In any event, the trial judge noted in his reasons the fact that the appellant relied on the “Walmart alibi”, which had been given in the formal recorded statement, promptly.
7Second, the appellant argues that the trial judge erred in his treatment of the alibi evidence called by the appellant by reversing the onus of proof when he said the Walmart alibi was not conclusive. We do not accept this argument.
8In our view, the trial judge was saying no more than that the alibi did not exclude the appellant’s opportunity to commit the offence. The trial judge later accepted the eye witness testimony of the victim’s neighbours concerning the appellant’s return to the house and rejected the appellant’s evidence. In these circumstances, the trial judge’s statement when addressing alibi, that the appellant “could have been present” at 6:20 p.m. was of no moment.
9As his third ground of appeal, the appellant argues that the trial judge erred in failing to caution himself about the dangers of eye witness identification evidence and improperly conflated the distinction between credibility and reliability of eye witness identification evidence.
10We do not accept this argument. While it might have been preferable had the trial judge cautioned himself specifically about the dangers of eye witness identification evidence, trial judges are presumed to know the law. This trial judge demonstrated his awareness of the frailties of eye witness evidence when assessing the evidence concerning the identification of the appellant’s mother, ultimately rejecting such evidence.
11Further, in our view, read fairly, the trial judge’s reasons reflect an assessment of both credibility and reliability of the eye witness evidence. Particularly as these witnesses had seen the appellant earlier the same day, as well as on previous occasions, the trial judge’s acceptance of their evidence was not unreasonable. Moreover, circumstantial evidence supported the finding of guilt in this case.
12The conviction appeal is dismissed.
13Concerning sentence, the appellant asserts that in light of a gap in the appellant’s criminal record between 2002 and 2010, and in light of the appellant’s responsibilities to his children, the trial judge erred in failing to impose an intermittent sentence, which would have permitted the appellant to maintain employment.
14We do not accept this argument. The trial judge considered these factors in his reasons. The weight to be given to them was a matter for the trial judge. The appellant acknowledges the sentence was not unfit. We see no error in principle. Leave to appeal sentence is granted, but the sentence appeal is dismissed.
“Janet Simmons J.A.”
“K. van Rensburg J.A.”
“M.L. Benotto J.A.”