COURT OF APPEAL FOR ONTARIO

DATE: 20000320

DOCKET: C22384

RE: HER MAJESTY THE QUEEN (Respondent)

v. ROBERT JARVIS (Appellant)

BEFORE: OSBORNE A.C.J.O., FINLAYSON and LABROSSE JJ.A.

COUNSEL: Alan D. Gold,

for the appellant

Trevor Shaw,

for the respondent

HEARD: March 17, 2000

On appeal from his conviction by Mr. Justice H. Poulin, sitting

with a jury, on June 8, 1994 and from the sentence imposed on

November 3, 1994

E N D O R S E M E N T

[1] The appellant was convicted of robbery and related offences

and sentenced to a total of fifteen years' imprisonment.

[2] We agree generally with the Crown that this was a case of

hot pursuit with the perpetrators essentially followed from their

exit from the bank until their arrest.

[3] Much of the "identification" evidence was flawed.

[4] It is conceded that the trial judge erred in telling the

jury that courts have found the line-up procedure utilized in

this case is fair. This line-up procedure was flawed. Its

results were contradictory and useless.

[5] Although the estimates of the height and size of the

perpetrator alleged to be the appellant varied over time and

between witnesses, the witnesses generally and correctly

identified "the money man" (the appellant) as shorter than his

accomplice.

[6] However, the identification evidence was explicitly

collateral to the Crown's case which rested on the powerful

inferences that may be drawn from the hot pursuit of the

perpetrator followed by his quick arrest. The trial judge did

not even refer to the identification evidence when he reviewed

the Crown's theory in his charge to the jury.

[7] The trial judge did not provide the jury with the complete

W.D. instruction. The second step was left out. However, the

trial judge clearly told the jury that if they believed the

appellant they would have to acquit him and even if they

disbelieved him, the burden rested on the Crown to prove the

guilt of the appellant beyond a reasonable doubt. We do not

think that the appellant was prejudiced by this error.

[8] In our view, the appellant's explanation as to how he was

found in the room with the other bank robber bordered on the

incredible and was incapable of raising a reasonable doubt. This

was an overwhelming case and we have no doubt as to the

correctness of the verdict.

[9] The record does not support a conclusion of bias or improper

judicial interference.

[10] With respect to sentence, it is our view that this sentence

was outside the appropriate range for this type of offence for

this appellant. The principle of parity is offended. In all the

circumstances, a fit sentence is eight years concurrent on the

three robbery counts plus one year consecutive for the weapons

conviction. The sentence is not otherwise varied.

[11] Accordingly, the appeal against conviction is dismissed,

leave to appeal sentence is allowed, and the sentence is reduced

to one of eight years plus one year consecutive for the weapons

conviction.

(signed) "C. A. Osborne A.C.J.O."

(signed) "G. D. Finlayson J.A."

(signed) "J. M. Labrosse J.A."