Court of Appeal for Ontario

Citation: R. v. Serre, 2009 ONCA 108

Date: 20090204

Docket: C47759

Between:

Her Majesty the Queen

Respondent

And

Marcel Serre

Appellant

Counsel:

Marcel Serre, in person

Karen Papadopoulos, for the respondent

Heard: January 19, 2009

On appeal from conviction by Justice George Valin of the Superior Court of Justice dated October 4, 2006 and sentence imposed March 23, 2007.

By The Court:

[1] The appellant appeals his conviction and sentence by Valin J. for break and enter of a dwelling house with intent to commit an indictable offence, uttering a threat to cause bodily harm and possession of a weapon for a purpose dangerous to the public peace. The appellant’s grounds of appeal against conviction are that the identification evidence was unreliable and that he was prejudiced in his defence because the alleged weapon, a nightstick, was lost. He also submits that the sentence of four years imprisonment was excessive.

THE FACTS

[2] On July 5, 2004, the victim of the offence, a member of the United States military stationed at North Bay, was asleep in a home that she had rented. She had worked an evening shift and was sleeping in the living room when she was awakened by a noise at about 2:30 p.m. She was confronted by a man standing in the living room. The man had a nightstick in his hand and asked her where “Aaron” was. She told the man her name, that she was with the military and lived alone. The man identified himself as “Marcel” and said to tell Aaron that he was going to come back and when he did Aaron would be sorry. The complainant repeated that nobody named Aaron lived there. The man said that he knew Aaron was there because he saw his clothes. When the complainant was talking to the man, he was about seven feet away.

[3] The man then left. The complainant looked outside the window and saw a car parked outside. She saw a woman in the driver’s seat and a third person in the back seat. The intruder got into the front passenger seat. The complainant noted the licence number and called 911. She gave the licence number to the police as AMACH 769.

[4] It appears that “Aaron” was the landlord’s son as the landlord had told the complainant that she might get some of Aaron’s mail.

[5] At about 5:50 p.m., there was a second incident. The complainant heard banging on her front door and back door and on the side kitchen window. She immediately called 911. Just prior to the police attending she saw the same intruder getting into the same car. The same woman was driving and there was a third person in the back seat. The police arrived immediately and she saw them arrest the intruder. The vehicle bore licence number AKCH 769.

[6] At trial, the complainant testified that at the preliminary inquiry she had been shown a nightstick that was the same as the one the intruder had held during the first confrontation. She described it as about 12 inches long and black.

[7] The complainant identified the appellant as the intruder on the first occasion and the man who had been banging on her doors and windows on the second occasion. There was never any line-up or other identification procedure; it appears that the complainant identified the appellant for the first time at the preliminary inquiry and then again at the trial. She did, however, provide a description of the intruder to the police: grey longish hair, (which she meant was longer than military style, but not down to the shoulders), well-kept, thin build, late forties, five foot “tenish”. She did not note any moustache or that the intruder was wearing glasses. The appellant has neat grey hair and a moustache but is shorter than 5’10”. He usually wears glasses.

[8] When the police attended on the second occasion, they found three people at the car: the appellant, Chantal Larocque and Derrick Andryechen. The appellant was sitting in the front passenger seat. Larocque was outside the vehicle and Andryechen was in the rear passenger seat. The police found a black nightstick poking out from underneath the front passenger seat. The nightstick was entered into evidence at the preliminary inquiry but afterwards went missing. Constable Brunette described the nightstick as about a foot- and-a-half long, black with etching by the grip. Constable Brunette described Andryechen as being 5’7” to 5’10” tall, and bald on the top of his head with long grey hair down to his shoulders “like the clown look”.

[9] Following a voir dire, a videotaped statement that the appellant gave to the police was found to be admissible. In the statement, the appellant admitted that he had been in the house the first time, but claimed that he was invited in. He denied having the nightstick, and said that “all I did is I asked if Aaron was there because apparently he wanted to see me and she said no he is not. I said that is fine we will go and do some groceries, I might drop in later and that is what we did”. The appellant insisted that he did not do anything wrong.

[10] The appellant did not testify at the trial.

THE CONVICTION APPEAL

The Identification Evidence

[11] The appellant submits that the identification evidence is unreliable; that the description given by the complainant does not fit his appearance but rather that of Andryechen. We do not agree. There were some minor discrepancies in the description the complainant gave to the police and the appellant’s appearance. However, the complainant explained the most significant discrepancy about the long hair. The trial judge was entitled to accept her explanation. It is apparent that Andryechen’s hair is entirely different from that described by the complainant.

[12] In any event, the case did not rest solely on the complainant’s identification evidence. The appellant admitted in his statement that he was in the home on the first occasion and he was arrested in the vehicle that was at the home on the two occasions. It is apparent that it was the same vehicle despite the slight difference in the licence plate number as recorded by the complainant. On both occasions the intruder got back into the front passenger seat, where the appellant was found by the police. The appellant also admitted in his statement that he was looking for “Aaron”. Further, the complainant testified that the intruder identified himself as “Marcel”, the appellant’s first name. Finally, the nightstick was found underneath the appellant’s seat.

[13] We would not give effect to this ground of appeal.

The Missing Nightstick

[14] The appellant submits that he was denied a fair trial because the nightstick that was seized from the car and entered as an exhibit at the preliminary inquiry was not available at the trial. The appellant submits that he would have been able to show that the complainant’s description of the nightstick was different from its actual appearance. We would not give effect to this ground of appeal. The nightstick was available at the preliminary inquiry and defence counsel asked no questions of the complainant about it at that time.

[15] At the trial, the police officer who found the nightstick described it and the discrepancy between that description and the description given by the complainant was before the trial judge. We can see no way in which the appellant’s case was compromised because the actual nightstick was not available at the trial.

THE SENTENCE APPEAL

[16] The trial judge sentenced the appellant to a total of four years imprisonment. The appellant has a criminal record beginning in 1971, which includes a number of drug offences and one conviction for assault. As the trial judge noted, it was apparent that the appellant entered the home in an attempt to collect a drug debt and to use force for that purpose. He brandished a weapon and impliedly threatened to cause harm to “Aaron”. This was a home invasion and required a sentence stressing deterrence and denunciation. The trial judge referred to the appropriate mitigating and aggravating factors, including the fact that the offence was of relatively brief duration and that no force was used to enter the dwelling, because the door was unlocked. We see no error in principle and have not been persuaded that the sentence is outside the appropriate range.

DISPOSITION

[17] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”

RELEASED: “MR” February 4, 2009