COURT OF APPEAL FOR ONTARIO

DATE: 20040614

DOCKET: C38557

RE: HER MAJESTY THE QUEEN (Respondent) – and – MARK FRANK RICE (Appellant)

BEFORE: LASKIN, CHARRON and JURIANSZ JJ.A.

COUNSEL:

Tanya Kranjc for the appellant

Nadia Thomas for the respondent

HEARD: June 4, 2004

On appeal from the conviction entered on February 15, 2002 and the sentence imposed on July 4, 2002 by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

Released Orally: June 4, 2004

[1] The appellant appeals his conviction for robbery and his sentence of two years in the penitentiary. On his conviction appeal the appellant makes five submissions:

(1) the verdict was unreasonable;

(2) the trial judge failed to properly instruct the jury on the eyewitness identification evidence;

(3) the trial judge failed to give an adequate instruction on circumstantial evidence;

(4) the trial judge failed to adequately explain the theory of the defence; and

(5) the trial judge erred in instructing the jury on motive.

[2] Before dealing with each submission we make two general observations. First, defence counsel at trial (not Ms. Kranjc) approved the trial judge’s charge before it was given and made no objection to it afterwards. Second, this was a relatively short and simple case, in which the defence led no evidence. We now turn to the specific grounds of appeal.

1. Unreasonable verdict

[3] The appellant argues that neither the circumstantial evidence about the car nor the eyewitness identification evidence reasonably supported the verdict. We do not agree. The evidence must be considered as a whole. In our view, on the whole of the evidence, the verdict is one a properly instructed jury could render.

2. The eyewitness identification evidence

[4] The appellant contends that the trial judge should have instructed the jury that the eyewitness identification evidence had no probative value. We do not accept this contention. Although not strong standing alone, the eyewitness identification evidence was probative. Its reliability and its weight were for the jury to determine. The trial judge drew to the jury’s attention, adequately in our view, the weaknesses and discrepancies in the evidence, and as we have said, defence counsel approved the charge and made no objection to the way the trial judge dealt with this evidence.

3. Circumstantial evidence

[5] As this court has said several times a charge on circumstantial evidence need not follow a fixed formula. What is central is that a trial judge convey the requirement that for the jury to convict on circumstantial evidence it must be satisfied that the Crown has proved the case beyond a reasonable doubt. The trial judge adequately conveyed this requirement.

4. Defence theory

[6] The trial judge gave the jury the theory of the defence requested by defence counsel. On appeal the appellant now argues that the trial judge should have highlighted the discrepancies and the problems in the eyewitness identification evidence. Ideally the trial judge might have done so, but especially in the light of the defence position at trial, we see no error in her not having done so.

5. Motive

[7] The Crown elicited some evidence of motive during Ms. Morrow’s testimony. Therefore, we cannot accept the appellant’s submission that either the trial judge should not have charged the jury on motive or should have given a proved absence of motive instruction. Moreover, in our view the trial judge’s charge on motive was fair and balanced.

[8] Accordingly, the appellant’s appeal against conviction is dismissed.

Sentence

[9] The trial judge’s sentence discloses no error in principle and is not demonstrably unfit. Despite the appellant’s commendable efforts to rehabilitate himself, a two year sentence for a robbery with a weapon on a vulnerable victim was entirely appropriate.

[10] Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

“John Laskin J.A.”

“Louise Charron J.A.”

“R.G. Juriansz J.A.”