Court of Appeal for Ontario

CITATION: R. v. Lavigne, 2008 ONCA 826

DATE: 20081205

DOCKET: C44934

BEFORE: Sharpe, Blair and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Joel Lavigne

Appellant

COUNSEL:

Matthew McGarvey for the appellant

Dena Bonnet for the respondent

Heard and released orally: December 1, 2008

On appeal from the judgment of Justice of Justice John D. Waugh of the Ontario Court of Justice dated January 24, 2006.

ENDORSEMENT

[1] The appellant was convicted of aggravated assault following an altercation outside a bar. The central issue at trial was identity. The Crown’s case rested almost entirely on the evidence of Bing who identified the appellant as one of two men who attacked the victim. Bing observed the altercation, saw the assailants flee to a nearby apartment, saw the police enter the apartment shortly thereafter and return with two men, one of whom was the appellant wearing the distinctive red shirt observed by Bing during the fight.

[2] The appellant submits that the trial judge erred in his analysis of the identification evidence. We disagree.

[3] In our view, the reasons of the trial judge demonstrate that he was fully alive to all the potential frailties in the identification evidence that had been raised by the appellant but that after full consideration of all of the evidence, he found that the Crown had proved its case beyond a reasonable doubt.

[4] The appellant relies in particular on evidence relating to hair colour. At the time of the incident, Bing was not asked, nor did he give, any description of the perpetrator’s hair colour. At trial, his recollection was that the perpetrator had dark or black hair. It is clear that the appellant has blond hair.

[5] This case is distinguishable from the Chartier line of authority where a detail observed by the witness at the time of the offence exculpates the accused. Here, it was only months later at trial that the witness gave the erroneous detail regarding hair colour. The trial judge took this into account as what he described as a potentially fatal flaw in the Crown’s case, but concluded after considering all the evidence that Bing’s recollection of hair colour at trial did not give rise to a reasonable doubt. In our view, it was open to him on this record to reach that conclusion.

[6] The appellant also argues that the evidence as to the appellant’s height was wanting. While no evidence as to the appellant’s height was led to link to Bing’s evidence comparing the assailant’s height to his own, the trial judge was entitled to make his own observations of Bing and the appellant in court and to assess the accuracy of Bing’s observations on that basis.

[7] Finally, the appellant argues that certain crucial evidence was given in response to a leading question. It is not clear to us that the question eliciting Bing’s response that he was certain of the appellant’s identification at the time of the arrest was in fact elicited by a leading question. In any event, that would not necessarily exclude consideration of that evidence but would only affect its weight. Moreover, Bing’s certainty was only one of the many factors taken into account by the trial judge in finding on all the evidence that the Crown had proved its case.

[8] Accordingly, we dismiss the appeal.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”