DATE: 20041012
DOCKET: C39711
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – DERAR KIDANE (Appellant)
BEFORE: WEILER, GOUDGE and BLAIR JJ.A.
COUNSEL: James A. Ermacora for the appellant
Kevin Wilson for the respondent
HEARD: October 4, 2004
RELEASED ORALLY: October 4, 2004
On appeal from the conviction entered by Justice Bonnie L. Croll of the Superior Court of Justice dated December 6, 2002.
E N D O R S E M E N T
[1] On December 6, 2002 the appellant was convicted of trafficking cocaine, possession of cocaine for the purpose of trafficking and possession of proceeds of trafficking. The Crown concedes that the appeal from conviction for possession of proceeds of trafficking should be allowed, the conviction quashed and an acquittal entered on that count.
[2] The main issue at trial was whether the Crown had proven the identity of the appellant beyond a reasonable doubt. The appellant submits that the trial judge erred in her assessment of the evidence respecting identity. We disagree. The trial judge did not err in law in her assessment of the evidence. Specifically, the trial judge did not give improper weight to the evidence of the police officers as it related to their powers of identification. The trial judge was free to consider their particular role and its focus at the time of the observation. The trial judge did not rely solely on Officer Kirkpatrick’s “drive-by” identification of the appellant. Nor did she rely improperly on Officer Kirkpatrick’s “subjective certainty” that the man who sold him the drugs was the appellant. There was substantial corroborating evidence that the appellant was the man who sold drugs to Officer Kirkpatrick. The trial judge therefore gave proper weight to the “drive-by” identification. The trial judge did not engage in improper speculation with regards to the gaps in the Crown’s case. She merely outlined possibilities of what may have occurred. Finally, the trial judge did not misapprehend the evidence of the appellant.
[1] The evidence as a whole supports the trial judge’s decision. The appeal from conviction of trafficking in cocaine and possession of cocaine for the purpose of trafficking is dismissed.
“K.M. Weiler J.A.”
“S.T. Goudge J.A.”
“R.A. Blair J.A.”