Court File and Parties

CITATION: R. v. Andrilovic, 2007 ONCA 754

DATE: 20071106

DOCKET: C46068

COURT OF APPEAL FOR ONTARIO

SIMMONS AND MACFARLAND JJ.A. AND WATT J. (AD HOC )

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JOHN ANDRILOVIC

Applicant/Appellant

Counsel: Robert Sheppard for the applicant/appellant Paul G. McDermott for the respondent

Heard and endorsed orally: October 30, 2007

On appeal from the conviction entered by Justice William A. Jenkins of the Superior Court of Justice sitting without a jury dated March 24, 2006 and from the sentence imposed by Justice Jenkins dated September 5, 2006.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of robbery and unlawful confinement. He was sentenced to six months imprisonment on each count to be served concurrently and to one year of probation. He appeals from conviction and seeks leave to appeal sentence.

Conviction appeal

[2] The appellant submits that the trial judge erred by relying on the complainant's credibility as the determining factor in assessing the reliability of the complainant's eyewitness identification evidence and by failing to take account of evidence that was capable of undermining the reliability of the identification. He also submits that the finding of guilt was unreasonable.

[3] We reject these submissions. In his reasons, the trial judge identified the reliability of the identification evidence as the issue in the case and referred to defence counsel's submissions outlining reliability concerns. Having taken account of these factors, the trial judge was satisfied that the complainant correctly identified the appellant as one of his attackers taking account of various matters, including the fact that this was a case of recognition rather than identification of a stranger and the existence of other evidence to support the identification, including evidence of a motive, and access to a key.

[4] The conviction appeal is dismissed

Sentence appeal

[5] In relation to the sentence appeal, particularly having regard to the fact that these offences involved a home invasion, in our view, if anything, the sentence imposed by the trial judge was lenient. Further, the appellant has not identified an error in principle.

[6] Accordingly while leave to appeal sentence is granted, the sentence appeal is dismissed.