DATE: 20050329

DOCKET: C41403

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- WAYNE ANGLIN (Appellant)

BEFORE:

LABROSSE, LANG and LaFORME JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Alexander Hrybinsky

for the respondent

HEARD AND RELEASED ORALLY:

March 23, 2005

On appeal from the conviction entered by Justice Derek T. Hogg of the Ontario Court of Justice on December 10, 2003, and from the sentence imposed by Hogg J. on December 18, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of the offences of robbery, weapons dangerous, and mischief. He was sentenced to two years less a day in custody. He appeals his conviction and sentence.

[2] The appellant submits that the verdict is unreasonable and, in the alternative, unreliable, by virtue of the trial judge’s failure to consider the frailties of the identification evidence.

[3] In considering the reasonableness of the verdict, the identification evidence, as a whole, must be considered. The evidence is problematic with respect to photographic line-up and in‑dock identification. However, even though this evidence contains frailties, there is other identification evidence implicating the appellant. That evidence is supported by a partial fingerprint found on the rear passenger side window of the car that was robbed, that was a “match” of the right ring finger of the appellant.

[4] Further, it is appropriate for this court to take into consideration the appellant’s failure to testify in assessing the reasonableness of the verdict. It is indicative of an absence of an exculpatory explanation.

[5] In our view, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. We would not give effect to the first ground of appeal.

[6] With respect to the alternative ground of appeal, the Crown acknowledges that the trial judge’s reasons are very brief and conclusory. This is not an overstatement.

[7] There were significant problems with the eyewitness identification evidence. Two witnesses identified the appellant for the first time “in dock” at trial, and one of these had failed to identify him in a photo line-up. The only other eyewitness identified the appellant in a suggestive and unreliable photographic line-up procedure.

[8] The trial judge concluded that the appellant had been identified beyond all reasonable doubt. The reasons do not support that conclusion. None of these frailties in the eyewitness evidence were addressed or even mentioned by the trial judge in his reasons for judgment. He failed to consider the suggestive procedure and ambivalent identification associated with the line-up, as well as the frailties of the other eyewitness identification evidence. The partial fingerprint of the appellant is not even mentioned and much less analyzed by the trial judge in his reasons.

[9] The conclusion of the trial judge is simply conclusory and generic. There is not a reasoned explanation for finding the appellant guilty. The reasons are inadequate in light of the decision in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). The failure to give adequate reasons is an error of law which warrants a new trial: see R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[10] Accordingly, the appeal is allowed, the conviction is set aside, and a new trial is ordered.

Signed: “J.-M. Labrosse J.A.”

“Susan E. Lang J.A.”

“H.S. LaForme J.A.”