COURT OF APPEAL FOR ONTARIO

DATE: 20001201

DOCKET: C33926

RE: HER MAJESTY THE QUEEN (Respondent) v. DAVID MOIR (Appellant)

BEFORE: CHARRON, BORINS and SIMMONS JJ.A.

COUNSEL: Leslie Maunder,

for the appellant

Alison Hurst,

for the respondent

HEARD: November 28, 2000

On appeal from his conviction by Justice Ronald A. Minard on May 28, 1999 and the sentence imposed on May 28, 1999

E N D O R S E M E N T

[1] The appellant was convicted of break and enter contrary to s. 348(1)(b) of the Criminal Code, breaking out of a house contrary to s. 348(1)(c) and failure to comply in regards to an incident that occurred on February 1, 1999 and was sentenced to three years’ imprisonment. He appeals against his convictions and sentence.

[2] The issue at trial was identification. The verdict was essentially based on the testimony of one eyewitness and on the evidence of footprints found near the scene of the crime that matched the shoes seized from the appellant. The trial judge held that the shoes were seized in violation of the appellant’s s. 8 Charter rights but dismissed the application to exclude the evidence under s. 24(2).

[3] The appellant appeals against the trial judge’s ruling on the Charter application. In our view, the trial judge did not err in principle in his consideration of the relevant factors on the Charter application. A trial judge’s decision under s. 24(2) is entitled to considerable deference by this court. We see no reason to interfere.

[4] The appellant further submits that the verdict was unreasonable. We do not agree. This is not a case that was based solely on eyewitness identification. The complainant’s evidence was supported by other confirmatory evidence, including the footprint evidence and evidence of injuries on the appellant that were consistent with the intruder’s actions in breaking out of the house through a window. It is our view that the verdict was supported by the evidence.

[5] Finally, the appellant submits that the trial judge failed to consider his background as an aboriginal offender in determining an appropriate sentence. We are not satisfied that the trial judge erred as contended. Express submissions were made to him about the appellant’s background and on the need to address the principles in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688. There is no reason to believe that this factor was not given due consideration by the trial judge. In all the circumstances, including the appellant’s extensive criminal record for related offences, we are of the view that the sentence was fit.

[6] For these reasons, the appeal against conviction is dismissed. Leave to appeal the sentence is granted but the appeal is dismissed.

(signed) “Louise Charron J.A.”

(signed) “S. Borins J.A.”

(signed) “Janet Simmons J.A.”