DATE: 20010713 DOCKET: C35030

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ORIN JOHNSON (Appellant)

BEFORE: DOHERTY, ROSENBERG and MOLDAVER JJ.A.

COUNSEL: Joseph Di Luca for the appellant

John North for the respondent

HEARD: July 10, 2001

On appeal from the conviction imposed by Justice William J. Morrison dated December 3, 1999.

ENDORSEMENT

[1] The sole issue at trial was identification. The undercover officer identified the appellant as one of three persons who sold him a substantial amount of cocaine in a hotel room. No arrests were made at that time as the investigation was an ongoing one. About 8 months after that transaction, the officer selected the appellant’s photograph from a photo array.

[2] The appellant absconded prior to trial in 1993 and was not arrested until 1999. He did not testify at trial. Two defence witnesses testified to the effect that the appellant was in New York at the relevant time. The trial judge rejected that testimony and no issue is taken with his treatment of that evidence on this appeal.

[3] The appellant contends that the verdict is unreasonable. The scope of appellate review of the reasonableness of a verdict is set out in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.).

[4] In our view, the reasonableness of this verdict stands or falls on the reliability of the identification made at the photo array. The officer was shown 12 photographs. Four, including the photo of the appellant, had a person’s name underneath the photograph. The officer did not know the appellant’s name. The trial judge rejected the appellant’s submission that the name underneath the appellant’s photo somehow directed the officer’s attention to that photo and detracted from the fairness of the photo array. The trial judge described the photo array as “a fair line-up consisting of numerous males at least 10 of whom were approximately the same age and colour as the accused”. We see no reason to disagree with that assessment.

[5] The trial judge’s reasons indicate that he was alive to the frailties of identification evidence generally and to the specific features of the evidence adduced in this case which potentially undermined the reliability of the officer’s identification. The trial judge decided that the officer’s evidence was credible and reliable. Bearing in mind our limited jurisdiction to reassess the officer’s credibility and reliability, we are not prepared to come to a different conclusion.

[6] The appeal is dismissed.

“Doherty J.A.”

“M. Rosenberg J.A.”

“M.J. Moldaver J.A.”