DATE: 20030225

DOCKET: C36105

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (respondent) – and – TEKLE OGBAMICHAEL (appellant)

BEFORE: CRONK, GILLESE AND ARMSTRONG JJ.A.

COUNSEL: Catherine Glaister, for the appellant Sarah Gray, for the respondent

HEARD: February 21, 2003

On appeal from the decision of Justice William P. Somers of the Superior Court of Justice dated March 7, 2001, sitting as a summary conviction appeal court judge on appeal from the conviction entered by Justice J. W. Bovard of the Ontario Court of Justice on May 17, 1999.

E N D O R S E M E N T

Released Orally: February 21, 2003

[1] The appellant seeks leave to appeal and, if leave be granted, appeals his conviction on one count of sexual assault.

[2] Section 839(1) of the Criminal Code allows an appeal from a summary conviction appeal court judge, with leave, on a question of law alone where an issue of sufficient public interest or importance is raised. The appellant argues that the summary conviction appeal court judge erred in law by finding that the trial judge did not misapprehend the evidence, and that the verdict was reasonable. We reject those submissions.

[1] The summary conviction appeal court judge recognized that the trial judge had erroneously stated that the complainant watched the appellant continuously during the course of her second encounter with him, namely, from the moment she saw him until his arrest. The summary conviction appeal court judge, having accepted that the trial judge had misapprehended that part of the evidence, concluded that the verdict was reasonable and there was no miscarriage of justice. We agree.

[2] The summary conviction appeal court judge and the trial judge both expressly recognized the inherent frailties of eyewitness identification by victims of crime, and the fact that the complainant in her testimony did not provide a specific description of the distinctive physical features of the person who assaulted her. The summary conviction appeal court judge correctly observed, however, that in this case the complainant actually identified the appellant, and took active steps to have him observed by others and apprehended by the authorities. The complainant sat beside the appellant on the subway at the time of the first incident. She was in a position, therefore, to personally observe him and did so for less than one minute but for something more than five seconds during a face-to-face confrontation.

[3] The complainant’s second encounter with the appellant was approximately two weeks later, when she personally observed him, again on a subway car, engaging in activity of a type, and in a manner, that appeared to her to be the same as what she had experienced with him earlier. As noted by the summary conviction appeal court judge, her identification of the appellant was based on a combination of factors, including his physical appearance, his location on the subway, the nature and manner of his conduct, his dress, and the type of bag that he was carrying. The summary conviction appeal court judge concluded that identification based on those factors, as established in the evidence before the trial judge, was sufficient to support a conviction by a properly instructed trier of fact, acting judiciously. We are not persuaded that the summary conviction appeal court judge erred in law or failed to apply the correct standard of review in reaching that conclusion.

[4] Accordingly, leave to appeal is granted and the appeal is dismissed.

"E.A. Cronk J.A."

"E.E. Gillese J.A."

"Robert P. Armstrong J.A."