COURT OF APPEAL FOR ONTARIO

DATE: 20001102

DOCKET: C34555

RE: HER MAJESTY THE QUEEN (Respondent) v. PERRY COATES (Applicant)

BEFORE: OSBORNE A.C.J.O., DOHERTY and SIMMONS JJ.A.

COUNSEL: Michael DeRubeis

for the appellant

Amy Alyea

for the respondent

HEARD: October 27, 2000

On appeal from the conviction imposed by Justice John Ritchie dated January 31, 2000 and the sentence imposed on March 6, 2000.

E N D O R S E M E N T

[1] The only issue on this appeal is whether the convictions can be said to be unreasonable. The trial judge convicted and the summary conviction appeal court affirmed the convictions.

[2] It is common ground that convictions based solely on the in-court identification evidence of the two victims would not be reasonable.

[3] The summary conviction appeal court judge found that there was sufficient confirmatory evidence to render the convictions reasonable. He said:

There are two other pieces of evidence to consider. At trial both victims stated that the attacker’s female companion addressed the attacker by the name Perry. The accused’s name is Perry. There is no record that the victims gave this name to the police the day of the assault. They did manage to get a licence number for the car driven by the attacker and that information, and indeed no other, led to the accused. [Emphasis added.]

[4] We agree with the summary conviction appeal court judge that the evidence concerning the first name of the assailant was evidence that was capable of confirming the identification evidence.

[5] There was no evidence as to how the licence number led the police to the appellant. It could have done so in various ways, some of which would tend to confirm the identification evidence and some of which would not. Presumably, the Crown could have led evidence as to how the licence plate number led the police to the appellant but chose not to do so. Without that evidence, the fact that the licence number led the police to the appellant could not support the identification evidence. The court cannot fill the gaps in the Crown’s case.

[6] There were problems with the identification evidence. While the evidence that the appellant and the assailant were both named Perry provides some support for the identification evidence, it does not lift the verdict across the reasonableness threshold.

[7] We grant leave to appeal, allow the appeal, quash the convictions, and enter acquittals.

“C.A. Osborne A.C.J.O.”

“Doherty J.A.”

“J. Simmons J.A.”