R. v. Brown, 2009 ONCA 563

CITATION: R. v. Brown, 2009 ONCA 563

DATE: 20090710

DOCKET: C47545

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dane Patrick Brown

Appellant

Joseph Wilkinson and Philip Norton, for the appellant

Craig Harper, for the respondent

Heard: July 8, 2009

On appeal from the convictions entered by Justice Ian Nordheimer of the Superior Court of Justice on April 27, 2007 and the sentences imposed on May 22, 2007.

By the Court:

I. Introduction

[1] On June 14, 2005, at about 7:00 p.m. in the evening, Kevin McLeish (“McLeish”) was shot six times at point blank range in a parking lot in Scarborough. Remarkably, he survived the attack. However, he sustained very serious injuries as a result of which he is now paralyzed from the waist down and confined to a wheelchair. He also suffered wounds to both of his lungs, his spleen, his thighs, his penis and his scrotum. He spent approximately one month at Sunnybrook Hospital and several months thereafter in rehabilitation at Lyndhurst Rehabilitation Centre.

[2] On July 5, 2005, about one week before he left Sunnybrook Hospital, the police visited McLeish after receiving information from an unknown person that the appellant was involved in the shooting. During this visit, McLeish identified the appellant as the shooter in the third of three photo line-ups shown to him by the police.

[3] The appellant was then arrested and charged with one count each of attempted murder, “using a firearm while committing an indictable offence”, pointing a firearm and breach of recognizance. At the outset of trial, he pled guilty to the breach of recognizance charge. On April 27, 2007, he was convicted by Nordheimer J. of the Superior Court of Justice on the attempted murder, pointing a firearm and breach of recognizance charges. The trial judge quashed the remaining charge – “using a firearm while committing an indictable offence” – as a nullity. On May 22, 2007, the appellant was sentenced to life imprisonment on the attempted murder charge; four years imprisonment, concurrent and after credit for pre-sentence custody, on the pointing a firearm charge; and time served, plus one day, on the breach of recognizance charge. He appeals against his convictions and his sentence for attempted murder.

[4] The focus of the appellant’s oral argument before this court in support of his conviction appeal concerned the trial judge’s assessment of the reliability and credibility of the identification witnesses. The appellant argued that the trial judge erred in his use and appreciation of certain of the identification evidence, leading to an unreasonable verdict. In respect of sentence, the appellant maintained that a sentence of life imprison-ment for attempted murder was harsh and excessive in the circumstances of this case.

II. Conviction Appeal

(1) Identification Evidence

[5] Identification was the central issue at trial. The Crown’s identification case rested on the evidence of the victim – McLeish – and an independent witness who observed the shooting – Tracey Hamilton (“Hamilton”). The Crown also placed some reliance on evidence of the appellant’s unsuccessful post-incident attempt to flee Canada. The appellant did not testify, nor was any other defence evidence called.

[6] During his testimony at trial, McLeish provided a description of the physical appearance of the shooter and identified the appellant as the perpetrator. He said that he knew the appellant from the neighbourhood where they both lived and that he and the appellant saw each other on a fairly regular basis. Indeed, McLeish testified that he and the appellant had both attended a barbecue and poker game at the home of a mutual acquaintance just a few weeks before the shooting.

[7] The Crown’s second identification witness, Tracey Hamilton, lived on the other side of the parking lot from where the shooting occurred. On the night of the shooting, she gave a statement to the police in which she provided a physical description of the shooter. She also told the police that the shooter resembled a rap singer by the name of Beanie Segal.

[8] At trial, Hamilton testified that on the day in question, she was at home caring for one of her children. She witnessed the shooting from a short distance away – about 16 feet. The shooter was facing in her direction. Although she did not see a gun, she saw a male with his arm outstretched a few inches from the chest of the victim, observed two sparks and heard four to six gunshots.

[9] Hamilton also said that, shortly before the shooting, she observed two cars in the parking lot that she had never seen before. She stated that she recognized the men who got out of one of the cars from the neighbourhood, including the appellant. She had seen the appellant on at least two or three prior occasions in the complex where she lived. She said that the appellant was part of a group of males that had tried to pick her up in the past.

[10] During her testimony, Hamilton again provided a description of the shooter and again said that he looked similar to a rap singer by the name of Beanie Segal. A picture of Segal was made an exhibit at trial. Hamilton also identified the appellant in court as the shooter, as she had previously done at the appellant’s preliminary inquiry.

[11] Hamilton was not presented with a photo line-up by the police during their investigation. However, she testified that some weeks after the shooting, her boyfriend had showed her a newspaper article related to the shooting that included a picture of the appellant.

(2) Appellant’s Complaints Concerning Identification Evidence

[12] At trial, the appellant did not contest that he and McLeish had known each other for several years prior to the shooting. However, among other matters, he argued that McLeish’s identification of him was unreliable because McLeish committed perjury about the number of males present at the site of the shooting in order to protect their identities. According to the appellant, this allegedly demonstrated a motive by McLeish to falsely implicate the appellant as the perpetrator.

[13] The trial judge held that the evidence at trial displaced any concerns about the reliability of McLeish’s identification of the appellant as the shooter. The appellant does not challenge this finding on appeal. Nor does he contest the trial judge’s rejection of the defence theory that McLeish mistakenly identified the appellant as his assailant.

[14] However, the appellant argues that the trial judge erred by concluding that McLeish had not falsely identified the appellant as the shooter. In particular, the appellant submits that the trial judge erred by relying on Hamilton’s evidence, which the appellant says was itself inherently unreliable, to corroborate McLeish’s claim that the appellant was the shooter. In so doing, the appellant contends, the trial judge erred: (i) by treating this case as a recognition case; (ii) by relying on Hamilton’s reference to the appellant’s resemblance to the rapper Beanie Segal when that reference did not raise her description of the shooter “from the generic to the specific” and did not render it “more probative”; (iii) by observing that there was a “marked resemblance” between the picture of Beanie Segal and the appellant, without describing any points of comparison; (iv) by failing to take account of the discrepancies between McLeish and Hamilton’s descriptions of the shooter; (v) by relying on Hamilton’s certainty of her identification of the appellant to assess her reliability; and (vi) by failing to appreciate that the error of false identification was heightened by relying, in combination, on McLeish’s evidence and Hamilton’s certainty about her identification of the appellant.

(3) Discussion

[15] We reject these arguments for the following reasons.

[16] First, the trial judge began his analysis of the evidence by adverting to the well-established dangers of identification evidence and to some of the leading authorities in Canada on that issue. He noted, correctly, that the weight to be assigned to identification evidence varies with the circumstances of the case: see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), at p. 452; R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.).

[17] The trial judge went on to emphasize that this was a recognition case, not simply a case of an identification of the shooter by McLeish. We agree with that characterization and with the trial judge’s comment that: “[t]his was not a situation of a fleeting glance or a split second observation.” The appellant was not a stranger to McLeish. On the contrary, McLeish had known the appellant for several years. He spoke to him before he was shot, in unobstructed circumstances and daylight conditions, when the two men were standing face to face. McLeish recognized the appellant as the shooter.

[18] Second, it was McLeish’s unchallenged evidence that there was no history of antagonism or conflict between him and the appellant prior to the shooting. The record suggests that the shooting was sudden, unprovoked and unpredictable.

[19] The appellant points out that the trial judge did not accept McLeish’s assertion that only the appellant and one companion were present when McLeish was in the parking lot. The finding that McLeish had ‘lied’ on this issue, the appellant claims, demonstrates that he had a motive to falsely identify the appellant. We disagree.

[20] The trial judge held, as he was entitled to do on this record, that McLeish’s false assertion about the number of males present in the parking lot was prompted by his desire to protect others from any involvement with the police in a community where the evidence indicated that considerable hostility to the police existed. Contrary to the appellant’s submission, a desire not to involve others in a police investigation does not establish animus by McLeish towards the appellant or a motive to falsely implicate the appellant in a serious crime. Indeed, it suggests precisely the opposite.

[21] Third, we do not accept the appellant’s contention that the trial judge’s assessment of Hamilton’s evidence was flawed or that the trial judge erred by relying on Hamilton’s identification evidence to support his conclusion that McLeish did not falsely identify the appellant as his attacker.

[22] As with McLeish’s evidence, the trial judge identified and addressed the problems in Hamilton’s identification evidence, including the defence criticisms of that evidence, many of which the appellant renews before this court. And as with McLeish’s evidence, the trial judge provided detailed and cogent reasons for his rejection of the multi-faceted defence attack on Hamilton’s evidence.

[23] The trial judge recognized the frailties of in-dock identification evidence and, as a result, did not rely on that evidence by Hamilton to establish the appellant’s guilt. Instead, he relied on her evidence “as providing some corroboration of, and support for, Mr. McLeish’s identification” of the appellant and as undercutting the defence claim of fabricated identification by McLeish.

[24] In our opinion, the trial judge did not err in relying on Hamilton’s evidence for this purpose. Hamilton testified that she knew the appellant from the neighbourhood where she lived. Although she did not remember full particulars of her prior encounters with the appellant, she linked her recognition of him to occasions when the appellant and several others had tried to ‘hit’ on her. Thus, this was not a case of eyewitness identification of a complete stranger. Hamilton, like McLeish, recognized the appellant as the shooter.

[25] Moreover, prior to viewing the newspaper article that contained a picture of the appellant, Hamilton had provided a description of the shooter that matched the appellant and noted the shooter’s resemblance to the rapper Beanie Segal. The latter reference point narrowed her more general description of the shooter to a resemblance to a specific type of look. Her evidence of the appellant’s resemblance to Beanie Segal was supported by her prior knowledge of the appellant and was entitled to some weight.

[26] Based on Hamilton’s evidence, it was unobjectionable for the trial judge to compare the picture of Beanie Segal to the appellant’s appearance and to find a “marked” resemblance between the two: see R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.), at para. 121; R. v. Nikolvoski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.). The trial judge was not obliged to detail in his reasons those points of comparison that he noted between Segal’s picture and the appellant’s appearance.

[27] In the end, in our view, the trial judge’s assessment of the identification evidence in this case was exemplary. His reasons reveal that he was sensitive to the issues surrounding the identification evidence, that he dealt with those issues in accordance with the applicable legal principles, and that he did not misapprehend the nature of that evidence or ignore its weaknesses. His findings regarding the identification evidence therefore attract deference from this court. We have no hesitation in concluding that there was ample evidential support on this record for the identification of the appellant as the person who shot McLeish.

[28] The conviction appeal is therefore dismissed.

III. Sentence Appeal

[29] The appellant argues that the trial judge erred by imposing a life sentence for attempted murder that was harsh and excessive in all the circumstances. He asserts that when fashioning his sentence, the trial judge erred: (i) by failing to consider and give sufficient weight to factors warranting mitigation of the appellant’s sentence; and (ii) by failing to impose a sentence that was proportionate and the least restrictive sanction appropriate on the facts of this case. We reject these submissions.

[30] In our view, the trial judge did not err in his approach to sentencing or in respect of the sentence imposed. The appellant does not challenge the consideration given by the trial judge to the many aggravating features of this case. In respect of mitigation, the trial judge recognized that the appellant was a first offender and the father of a young child. He took these factors into account in crafting his sentence, together with the appellant’s prospects for reoffending. There was no evidence before the trial judge that the appellant had any real rehabilitative potential apart from that arising by necessary implication from his youth. The trial judge did not fail to consider any significant mitigating factor. We note that the fresh evidence filed by the appellant details his academic progress and his course of conduct in custody. While some of the fresh evidence suggests a good prospect for the rehabilitation of the appellant, other parts of the fresh evidence do not.

[31] We also reject the claims that the life sentence imposed was disproportionate to the circumstances of this offence or harsh and excessive.

[32] This was a grave crime that almost occasioned the loss of a life. Although he survived this vicious attack, the victim’s life has been altered forever – he is confined to a wheelchair and is paralyzed from the waist down. We agree with the trial judge that: “[t]his was a cold-blooded and senseless shooting.” As we have said, the attack was unprovoked. The appellant shot the victim six times at point blank range. He fired one shot in the victim’s chest, one in his groin area and four in his back. There was no evidence before the trial judge to explain the appellant’s actions.

[33] Finally, we reject the appellant’s claim that the sentence imposed was outside the applicable range of sentence for similar offences and offenders. The attempted murder in this case involved the use of a gun without warning in a public place where other citizens, including children, were present and at potential risk, in apparent retaliation for some minor slight. As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration.

[34] In our opinion, the sentence imposed was fit and the trial judge did not err in his sentencing analysis. It follows that while we grant leave to appeal sentence, the sentence appeal is dismissed.

RELEASED:

“JUL 10 2009” “Dennis O’Connor A.C.J.O.”

“DOC” “J.C. MacPherson J.A.”

“E.A. Cronk J.A.”