Court File No. C29296
COURT OF APPEAL FOR ONTARIO
B E T W E E N : )
HER MAJESTY THE QUEEN )
Respondent )
and )
KELLY FLORENCE )
Appellant )
In writing )
BY THE COURT:
[1] The appellant appeals in writing from his conviction for robbery. Bark J. found the appellant guilty of robbery on March 2, 1998. The appellant submits that the conviction is unreasonable because neither the victim nor the arresting officer could identify him in court. The trial took place almost six years after the offence. It seems that the appellant was responsible for most of the delay. For the following reasons, the appeal from conviction is dismissed.
[2] The complainant testified that the night of the robbery he was returning to his home at about 11:30 p.m. He had been playing at a musical festival and was carrying his guitar in a case and duffel bags containing drum equipment. As he passed a house on Catherine Street in the City of Ottawa, a group of men began to yell threats at him. Most of the threats came from a large shirtless man who claimed to have a knife and ordered the complainant to drop his guitar. Two other men were present including one described as a “skinhead” with the hair starting to grow out.
[3] When the complainant began to run the large man and the skinhead began to chase him. They caught up to him and while the large man held the complainant around the neck, the skinhead pulled the guitar case out of the complainant’s grip and ran off. The large man punched the complainant in the face and threatened to kill him if he called the police.
[4] The complainant went to his apartment and immediately called the police. Police officers attended and took the complainant back to the house on Catherine St. There was a group of men sitting on the porch of the house. As soon as the police pulled up, two of the men ran off. The complainant picked out the man described as the “skinhead” and the police arrested him. The arresting office, Constable Hrabchak testified that this person identified himself as Kelly Florence. The police found the complainant’s guitar in the doorway of the house. Constable Hrabchak was unable to identify the appellant as the person he had arrested some six years earlier. The complainant was also unable to identify the appellant as his assailant. However, he testified that the night of the arrest he had no problem recognizing his assailant.
[5] In our view, this appeal cannot succeed. When Constable Hrabchak was unable to identify the appellant in court, no doubt due to the passage of time, Crown counsel applied for an adjournment to call further evidence to link the appellant to the 1992 arrest. At that point, defence counsel stated as follows:
We’re prepared to admit that the gentleman that was arrested that night on June 16th, I believe it is, is Kelly Forence and he is the man who is before the court.
[6] When the admission, the officer’s evidence and the complainant’s evidence are put together there was sufficient evidence of identification. As Crown counsel points out in his written submissions, the identification evidence is bolstered by the circumstantial evidence. The appellant, who closely resembles the assailant, was found within 30 minutes of the attack at the house where the attack originated and in close proximity to the stolen guitar. The defence called no evidence to cast doubt on the accuracy of the identification.
[7] The appeal from his conviction is dismissed.
March 21, 2002 Signed: “M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”