CITATION: R. v. Spencer, 2008 ONCA 205
DATE: 20080327
DOCKET: C46538
COURT OF APPEAL FOR ONTARIO
ROULEAU, WATT and EPSTEIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
GLENN SPENCER
Appellant
Robin K. McKechney for the appellant
Frank Au for the respondent
Heard: February 20, 2008
On appeal from the conviction entered on September 21, 2006 by Justice Lawrence J. Klein of the Ontario Court of Justice.
ENDORSEMENT
[1] At the conclusion of argument, the appeal was dismissed (except for the application of the Kienapple principle) for the reasons to be given later. Our reasons follow.
[2] The appellant was charged in separate informations with several offences arising out of two incidents alleged to have taken place on May 11, 2006, in Parry Sound. Each incident involved a separate complainant. The appellant agreed to have both informations tried together before a provincial court judge. For those offences triable either way, the prosecutor chose to proceed by indictment.
[3] At the conclusion of the trial, the appellant was convicted of counts of robbery and extortion in relation to the complainant, Derek West, and of attempted robbery in relation to the complainant, Richard Smith. The appellant was also convicted of four counts of failure to comply with a probation order on each information.
[4] The principal grounds of appeal advanced are that the learned trial judge erred in law by failing:
i. to provide adequate reasons for judgment; and
ii. to approach with sufficient caution the eyewitness identification evidence concerning the incident involving Richard Smith.
[5] The appellant says that the learned trial judge did not provide reasons that adequately explained the contradictory evidence in the prosecution’s case and properly assessed the credibility of the prosecution’s witnesses. To be more specific, the complaints are that the reasons of the learned trial judge:
i. failed to explain several inconsistencies in the evidence describing the conduct said to constitute the offences against Derek West;
ii. failed to take into account exculpatory evidence elicited from the complainant West and the prosecution witness, Holly Smith; and
iii. failed to properly assess the credibility of the complainant, Derek West.
[6] We test the appellant’s claim of inadequate reasons functionally in the context of the case the provincial court judge tried. It was a simple case. Two incidents. One assailant. A single evening. The same neighbourhood. A short time apart.
[7] Two witnesses, Derek West and Holly Smith, gave evidence about what happened in Holly Smith’s room between the appellant and Derek West. From their evidence, which was not contradicted by the appellant’s oath, the appellant stole ten dollars from Derek West and threatened him with violence for the purpose of carrying out the theft. The reasons of the trial judge make it clear that he was mindful of the inconsistencies in the evidence of each witness and between their accounts.
[8] A trial judge is not bound to overturn every pebble dropped into the evidentiary pool in a criminal trial, nor to answer in his or her reasons for judgment, each and every argument advanced by counsel. The reasons in this case reveal a firm awareness of the potential frailties in the evidence of Derek West, whose testimony about the attack on Richard Smith the trial judge rejected because of the conflicting evidence of Holly Smith about what could be seen from her window.
[9] In this case, the trial judge had the inestimable advantage of seeing and hearing the witnesses give their evidence. He concluded, as it was open for him to do, that the essential elements of each offence against Derek West had been proven beyond a reasonable doubt. He explained the pathway he followed to reach his conclusion. His reasons are sufficient to permit meaningful appellate review. We would not give effect to this ground of appeal.
[10] The second ground of appeal asserts error in the assessment of the prosecution’s evidence offered to establish that the appellant was the person who attempted to rob Richard Smith on a Parry Sound street. To be more specific, the appellant says that the trial judge:
i. improperly relied on the presence of a person with a fishing spear to bolster the identifications made by Richard Smith and Prov. Cst. Scali;
ii. used a generalized description to connect the individual involved in the struggle with Richard Smith with a person arrested by Prov. Cst. Scali; and
iii. failed to properly assess the impact of Smith’s failure to identify the appellant as his assailant in the courtroom, a matter of months later.
[11] We would not give effect to this claim of error.
[12] To begin, this is not the paradigmatic eyewitness identification case where a witness, with only the briefest of opportunity to observe, identifies a complete stranger as the perpetrator of a crime. Richard Smith did not identify a stranger as his assailant. He knew the appellant as another resident of a nearby rooming house where Smith lived. They had socialized, however briefly. The words spoken by Smith’s attacker recalled an earlier comment the appellant had made about Smith’s lack of interaction with others at the rooming house. The street altercation could scarcely be characterized as fleeting.
[13] Prov. Cst. Scali arrived as the attempted robbery was in progress. He distinguished Richard Smith’s attackers by their clothing. He also noticed the fishing spear that Smith and the appellant were struggling over. There was little pedestrian traffic about the area.
[14] Prov. Cst. Scali pursued the man with a black-hooded sweatshirt and ball cap who had been involved in but was fleeing from the altercation with Richard Smith. The officer knew the area well and, after about fifteen or twenty seconds, saw the man still running on a nearby street. The man was the only pedestrian. After a brief foot chase, the officer apprehended the appellant, whom he recognized from prior dealings.
[15] The trial judge made specific reference to the failure of Richard Smith to identify the appellant in court as his assailant. He considered such failure as indicative of the witness’ frankness, an unwillingness to convert uncertainty into certainty despite the ease of its conversion. In these circumstances, we do not consider what the trial judge said as reflecting error. The submission seems somewhat ironic in that, had Smith identified the appellant in court as his assailant, we would have been urged to consider the identification as worthless.
[16] In the result, we would reject this ground of appeal.
[17] It is common ground that the rule against multiple convictions for the same delict, cause or matter warrants entry of a stay of proceedings on the extortion count relating to Derek West. We agree that, in this case, the factual and legal nexus required to engage the Kienapple rule warrants entry of a stay of proceedings on the extortion charge, count two of the Derek West information.
[18] Likewise, the parties agree that there is a further duplication in count three of the Smith information and count four of the West information. Each alleges the same breach of a term of a probation order. To eliminate this duplication, we quash the conviction on count three of the Smith information.
[19] In the result, we dismissed the appeal except for the entry of a stay of proceedings in place of the conviction of extortion on count two of the West information, and quashed the conviction on count three of the Smith information.
“Paul Rouleau J.A.”
“David Watt J.A.”
“G. Epstein J.A.”