Court File and Parties

Court of Appeal for Ontario Date: 2021-11-19 Docket: C67995

Before: Fairburn ACJO, Rouleau & Huscroft JJ.A.

Between: Her Majesty the Queen, Respondent and Brian Deakin, Appellant

Counsel: Carter Martell, for the appellant Samuel Greene, for the respondent

Heard: October 28, 2021 by video conference

On appeal from the conviction entered on October 24, 2019, and the sentence imposed on December 11, 2019, by Justice R.S. Gee of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for robbery and wearing a disguise with intent to commit an indictable offence as well as his four-year sentence.

[2] The appellant entered a convenience store wearing a face-covering to conceal his identity. He was brandishing a knife and what appeared to be a firearm and demanded that the clerk open the till. He stole several hundred dollars and escaped with an accomplice.

[3] The issue at trial was identity.

[4] After the robbery, the police obtained surveillance video from the convenience store. The police then released pictures from the video showing the two perpetrators to the public.

[5] The appellant’s sister, Mellissa Deakin, saw the photos and recognized the appellant as one of the perpetrators depicted. She then contacted the police.

[6] The Crown called Ms. Deakin as a witness at trial. A voir dire was held to determine if, because of her prior acquaintance with the appellant, she was in a better position than the trier of fact to identity the perpetrator: see R. v. Leaney, [1989] 2 S.C.R. 393 at pp. 412-13. At the conclusion of the voir dire, defence counsel conceded that Ms. Deakin’s opinion on identification was admissible subject to the trial judge’s determination of its ultimate reliability. As the trial judge noted, just because a witness is qualified to give the evidence does not necessarily mean that it ought to be accepted and relied on by the trier of fact.

[7] In the course of her testimony, Ms. Deakin was shown five video clips drawn from surveillance video at the convenience store. They depicted the appellant walking in or in front of the store. She had not seen them before. In some videos, the appellant wore a face covering but, in two of the videos, the appellant’s face was uncovered although a baseball cap partially shielded the upper portion of his face. Ms. Deakin was certain that the person depicted in the video was her brother, the appellant. She noted the appellant’s distinctive walk which she described as a “thug walk” and recognized certain features of his face visible in parts of the videos.

[8] The trial judge found Ms. Deacon to be a credible witness and her identification of the appellant to be reliable. He entered a conviction. He then imposed a sentence of three years for the robbery and one year for the wearing of a disguise to be served consecutively, resulting in a total sentence of four years.

[9] The appellant’s principal ground of appeal is that the trial judge failed to appreciate the frailties in the identification evidence. He argues that, properly viewed, the identification evidence was so unreliable as to be incapable of grounding a conviction.

[10] At the outset, the appellant explains that the photos the police released to the media from which Ms. Deakin identified her brother contain insufficient detail to allow for reliable identification. Ms. Deakin provided no explanation as to how she was able to recognize the appellant from these photos. In the appellant’s submission, the animus that Ms. Deakin felt toward her brother is likely what led her to attend at the police station and identify her brother as the person depicted in the photos. The two had had a falling out over the appellant’s discreditable lifestyle approximately one year before the robbery. The appellant argues that his sister was expecting him to get in trouble so, in effect, she placed him in the photo.

[11] When Ms. Deakin attended at the police station, her belief that it was the appellant depicted in the photos was, in the appellant’s submission, reinforced by the police’s failure to prepare a photo lineup. Rather, they showed Ms. Deakin a different photograph said to be of the appellant, one drawn from Facebook that she was familiar with, and had her confirm that the second photo was also of her brother. This is said to have further tainted her identification.

[12] According to the appellant, Ms. Deakin would therefore have expected to see her brother when she was shown the videos at trial. In the appellant’s submission, this confirmation bias was not adequately considered by the trial judge.

[13] The appellant goes on to argue that the videos are simply incapable of supporting the identification of the appellant. The alleged distinctive walk Ms. Deakin described as “thug walk” is, in his submission, generic in nature and provides little support for the identification. As for the photos in which the appellant’s face is partially revealed, Ms. Deakin was unable to adequately describe any distinctive facial features to justify the confidence in the identification she asserted.

[14] Finally, the appellant notes that Ms. Deakin conceded that she was estranged from her brother. She had not seen him for about a year before the surveillance videos and two years by the time of trial. In the period since she had last seen him, she said that his appearance had changed somewhat.

[15] Given these problems with the identification evidence, the appellant argues that, although the trial judge cautioned himself on the frailties of identification evidence and the danger of conflating credibility with reliability, he did not heed this caution. His reasons give no indication that he had in fact appropriately considered and weighed the problems.

[16] We do not accept this submission. In his reasons for judgment, the trial judge adverted to the dangers of eyewitness identification. He acknowledged that, just because a witness is qualified to give recognition evidence, this does not absolve the trial judge of his responsibility to make his own assessment of the evidence and be satisfied beyond a reasonable doubt of its accuracy. He also noted that confidence does not equate with accuracy.

[17] Mindful of these dangers, the trial judge then carefully analyzed Ms. Deakin’s evidence. He noted that Ms. Deakin acknowledged the change in the appellant’s appearance since she had last seen him. Aware that Ms. Deakin had had a falling out with her brother, the trial judge found that this affected neither her credibility nor the reliability of her evidence. He viewed Ms. Deakin as having testified “in [a] careful, candid and honest manner”. He accepted that the distinctive walk described by Ms. Deakin constituted a feature that “his sister knowing [the appellant] as she does and for as long as [she] does, would be able to recognize.” It was open to the trial judge to come to this conclusion.

[18] As for the portions of the video depicting the appellant’s face, the trial judge focussed on two clips. With respect to the first, he found that “given its quality and the amount of the face visible, especially in profile, Ms. Deakin’s identification from it is accurate and reliable.” With respect to the second clip, he noted Ms. Deakin’s evidence to the effect that “based on the shape and outline of the face, the nose and the lips, there is no doubt in her mind that the person was her brother.” When describing what she recognized in the clip, the transcript reveals that Ms. Deakin got up to show on the video what she was describing. After recognizing that “a witness’ confidence does not equate with accuracy”, the trial judge found that “this clip gives a very good view of the person’s face and is clear and of high quality, such that again I am satisfied in the accuracy of Ms. Deakin’s identification.”

[19] As a result, we see no error in the trial judge’s approach.

[20] In addition, despite the capable submissions made, we do not accept the suggestion that Ms. Deakin’s identification of the appellant was tainted by the manner in which the police carried out the investigation. Ms. Deakin independently identified the appellant from the photos released to the public and did so without any prompting.

[21] We reject the suggestion that Ms. Deakin identified the appellant in the videos because she expected to see him in them. The record demonstrates otherwise. When shown the videos for the first time at trial, she testified that she was not able to identify the person in the first two clips. She only confirmed that the person depicted in the videos was her brother when shown clips of the perpetrator walking and clips that revealed portions of his face. Despite their falling out, Ms. Deakin was not looking to inculpate her brother. As she explained, she did not want to believe that it was her brother. When she first saw the picture, her “heart kind of dropped. I felt like crap.”

[22] The appellant conceded at trial that Ms. Deakin’s opinion on identity was admissible. The weight to be given to that evidence was a matter for the trial judge. We see no error in his acceptance as to the accuracy of Ms. Deakin’s identification of her brother as the perpetrator in the surveillance videos.

[23] Second, the appellant argues that the verdict is unreasonable. As we have explained, we see no error in the trial judge’s conclusion that the videos were sufficiently clear so as to allow Ms. Deakin to identify the appellant as the perpetrator. As the trial judge noted, the videos are of high quality and the amount of face visible in those videos is sufficient to allow the identification, particularly when combined with what the trial judge perceived to be the appellant’s distinctive walk. We reject this ground of appeal.

[24] The appellant also tenders and seeks to admit fresh evidence. The fresh evidence relates to the appellant’s trial on charges for having made threats against Ms. Deakin. That trial was held approximately a year following the decision in the present case. The appellant was acquitted of those charges and he argues that Ms. Deakin’s testimony in that case was rejected by the trial judge. In addition, her testimony is in some measure inconsistent with testimony she gave in this case. In the appellant’s submission, the evidence is important for a full and proper appreciation on appeal of the reliability of Ms. Deakin’s evidence.

[25] We do not admit the fresh evidence. In our view, it is simply not cogent. Ms. Deakin’s testimony in the later trial does not say anything about her credibility and reliability when she testified in the present matter. At best, it would show inconsistent testimony suggesting that her memory of events shifted in the time between the two trials.

[26] Finally, the appellant appeals his four-year sentence on the basis that the trial judge did not explain why he made the one-year sentence for wearing a disguise consecutive to the three-year sentence for robbery.

[27] We see no error in the trial judge’s sentence. This was a planned and deliberate robbery and involved a knife and what appeared to be a firearm. The appellant had a lengthy record and the sentence imposed fell well within the range. In fact, at the sentencing hearing, defence counsel submitted that an appropriate sentence was “three to four years, probably, in fairness, probably close to the four, if not the four.” Although the trial judge should perhaps have explained why he chose to make the two sentences consecutive, it is clear, in our view, that he considered a four-year sentence to be appropriate in the circumstances. In our view, the sentence is fit.

[28] For these reasons the appeal is dismissed.

"Fairburn A.C.J.O." "Paul Rouleau J.A." "Grant Huscroft J.A."