DATE: 20060403

DOCKET: C43686

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – FRANK LIEBHARDT (Respondent)

BEFORE:

SIMMONS, MACFARLAND and ROULEAU JJ.A.

COUNSEL:

Brian McAllister

for the appellant

Leslie Paine

for the respondent

HEARD & RELEASED ORALLY:

March 29, 2006

On appeal from the judgment of Justice W. Donald August of the Ontario Court of Justice dated March 2, 2005.

E N D O R S E M E N T

[1] In our view, the verdict in this case is not unreasonable. The identification evidence of Sergeant Hawco could be sufficient to support a finding of guilt. He had a clear view of the appellant as he moved from the door of the Pizza Pizza restaurant, approximately sixty feet from his (Sergeant Hawco’s) position, to the door of the Sunfire, approximately thirty feet from him. Sergeant Hawco observed the appellant for approximately twenty seconds. His best view of the appellant was when he was on the sidewalk because it was well lit and there was no back lighting from the plaza. In addition, there was a direct line of sight between him and the appellant as the appellant came around the front of the Sunfire to get into the driver’s seat.

[2] The fact that Sergeant Hawco identified the appellant from a single photograph rather than a line-up is a factor to be weighed by the trial judge. It does not however, render the evidence incapable of supporting a conviction.

[3] In his brief reasons, the trial judge made findings indicating that he disbelieved the defence witnesses. While the trial judge did not fully review the reasons for these findings, on this court’s review of the record those findings are sustainable. However, the trial judge made his finding of guilt without making reference to the dangers inherent in eyewitness identification cases. In stating that he believed the evidence of Sergeant Hawco, he focused on the credibility of the officer’s testimony without expressly considering whether the testimony of the defence witnesses raised a reasonable doubt as to its reliability. Moreover, the trial judge failed to expressly consider whether Sergeant Hawco’s evidence was sufficiently reliable to discharge the Crown’s burden. On the facts of this case he erred in failing to do so.

[4] For these reasons the appeal is allowed and a new trial is ordered.

“J.M. Simmons J.A.”

“J.L. MacFarland J.A.”

“P.S. Rouleau J.A.”