CITATION: R. v. Ellis, 2008 ONCA 77
DATE: 20080207
DOCKET: C46621
COURT OF APPEAL FOR ONTARIO
DOHERTY, BORINS and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
CARLTON ELLIS
Appellant
Catherine Glaister for the appellant
Nadia Thomas for the respondent
Heard and orally released: February 4, 2008
On appeal from the conviction entered by Justice French of the Ontario Court of Justice on September 7, 2006.
ENDORSEMENT
[1] The appellant was convicted of robbery after his trial in the Ontario Court of Justice. Identification was the central issue at trial.
[2] The victim of the robbery, a salesperson in a store called Teleworld Communications, testified that a person came into the store. That person demanded a “pay as you go” card, but did not want to pay for it. He offered to exchange certain phone chargers for the card. The clerk said that she could not make the exchange. The person became very agitated and asked for money more than once. He pulled from his pocket what appeared to be a gun and put it on the counter about a foot and a half from the salesperson. The gun was pointed at the salesperson and she quite understandably became very afraid. The gun remained on the counter for over thirty seconds. The man repeated his request for the money while the gun was on the table.
[3] The person left the store, kicking some signs on the sidewalk just outside of the store. The salesperson then spoke to her boss, who called 911. The person returned to the store and after some further discussion, during which the gun was not produced, the salesperson gave this person $2.00 after he requested money and he left. The salesperson testified that she was very frightened because the person seemed so angry and she thought he might kill her. The salesperson testified that the man was in the store for about five minutes.
[4] The police arrived within about five minutes of the 911 call and the appellant was arrested up the street, several stores from where the alleged robbery had occurred. The appellant was in possession of an imitation gun. It did not match the description of the gun given by the salesperson, although there were some similarities. The gun seized from the appellant was shown to the salesperson in the course of her testimony and she could not recognize it.
[5] The salesperson gave a generic description of her assailant, describing him as a tall black man wearing a dark jacket, dark coloured hat and dark pants. The appellant is a male and black and was wearing a dark jacket. He was wearing a hat, but it did not match the description given by the salesperson. He was also wearing blue jeans.
[6] The salesperson gave an in-court identification of the appellant. There was no other form of identification offered by the Crown. Crown counsel on appeal, quite properly, concedes that the in-court identification has virtually no evidentiary value.
[7] The appellant did not testify.
[8] In our view, the conviction is an unreasonable verdict. The description of the assailant provided no detail that could distinguish the assailant from thousands of other people. Some of the few details that were given did not match the appellant’s appearance.
[9] None of the surrounding circumstances offer any support for the identification evidence. There are insufficient details surrounding the location and circumstances of the appellant’s arrest to regard either the location or circumstances as affording any support for the Crown’s contention that the appellant was the assailant. Insofar as the appellant’s possession of the imitation handgun is concerned, we accept counsel’s submission that since the salesperson was unable to recognize the gun and it did not match the description of the gun given by her, the appellant’s possession of it cannot reinforce the Crown’s case against the appellant.
[10] On the evidence, we are satisfied that the verdict is unreasonable. The appropriate order is an order quashing the conviction and entering an acquittal.
“Doherty J.A.”
“S. Borins J.A.”
“S.E. Lang J.A.”