CITATION: R. v. Alves, 2009 ONCA 666

DATE: 20090921

DOCKET: C49020

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Brian Alves

Appellant

Brian Alves, appearing in person

Richard Litkowski, appearing as duty counsel

Susan Ficek, for the respondent

Heard: August 18, 2009

On appeal from the conviction entered on May 30, 2008, and the sentence imposed on June 6, 2008 by Justice Frank J.C. Newbould of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of break, enter and theft, breach of probation (to keep the peace and be of good behaviour) and breach of recognizance (to remain at his residence at all times). He was sentenced to three and a half years in prison for the break and enter, one year consecutive for the breach of probation but concurrent to the breach of recognizance and one year for the breach of recognizance consecutive to the break and enter but concurrent to the breach of probation. After giving credit of ten months for 17 months of pre-trial custody he received a global sentence of 44 months.

[2] The appellant appeals both conviction and sentence.

[3] The break and enter occurred on September 10, 2007 at a residence located in Etobicoke. The owner and other residents of the house were not home at the time of the break-in. The rear door of the house was damaged and the premises were ransacked. Several items were missing from the house including $2500.00 US.

[4] A postman noticed two people behaving suspiciously and called 911. He provided descriptions of the two suspects and described one of the suspects as definitely wearing a red hooded sweatshirt. Two police officers attended at the scene and chased the two suspects whom they attempted to apprehend.

[5] On September 13, 2007, three days after the break and enter, the postman was shown a photo line-up. He identified a photo of the appellant as the person wearing a red sweater.

[6] On February 13, 2008, six months after the break and enter, one of the two officers who had attended at the residence on September 10, 2007 identified the appellant in a photo line-up. The other police officer identified a person other than the appellant who was not a suspect.

[7] At the time of the break and enter the appellant was subject to a probation order that required him to keep the peace and be of good behaviour. He was also subject to a recognizance, which required him to remain in his residence at all times.

[8] The appellant raises the following grounds of appeal:

(1) The charge to the jury on identification failed to bring home in a forceful way the frailties of the identification evidence as it related to the appellant.

(2) The trial judge erred in failing to permit defence counsel to cross-examine a police officer on a recommendation of former Justice Cory arising out of the Sophonow wrongful conviction inquiry.

(3) The trial judge erred in his treatment of the evidence of a police officer concerning a cell phone call made before 9:44 a.m. on the day of the break and enter to the residence of the appellant.

(4) In the sentencing of the appellant the trial judge erred in failing to give two for one credit for the appellant’s pre-trial custody.

[9] In respect of the first ground of appeal duty counsel submitted that the photo line-up of the police officer was held six months after the break and enter and that the trial judge should have placed greater emphasis on this fact. Duty counsel also submitted that the array of photos shown in the line-up to the witnesses was not the usual kind of line-up. He submitted that the photo of the appellant is the only photo in the line-up with a significant bare patch in his eyebrow and that the trial judge should have emphasized this in his charge.

[10] In our view, a review of the entire charge of the trial judge on the weaknesses of identification evidence generally and his treatment of the evidence in this case does not suggest reversible error. The considerations raised by duty counsel were sufficiently brought to the jury’s attention. Also a review of the photographs making up the photo line-up does not suggest any unfairness to the appellant.

[11] In respect of the second ground of appeal counsel at trial sought to cross-examine the police officer on a recommendation made by former Justice Cory in his report on the Sophonow wrongful conviction. Trial counsel wished to make the point that the photo line-up should have been videotaped as recommended by the Honourable Mr. Cory. The trial judge refused to permit any questions relating specifically to the Sophonow report.

[12] In our view, cross-examination on what Mr. Cory had recommended in the Sophonow report on this issue would have been acceptable. However, the point that defence counsel was attempting to make was clearly made in his subsequent cross-examination without reference to the Sophonow report. We find no reversible error on the part of the trial judge.

[13] In respect of the cell phone evidence, the relevant facts are as follows. A second person, Mr. Altunes, was apprehended by the police near the scene of the break and enter. He had in his possession a stolen cell phone. The police investigation revealed that sometime between 6:03 a.m. and 9:44 a.m. the cell phone was used to place a call to the residence of the appellant in Brampton. It was the position of defence counsel at trial that the call was made by Mr. Altunes, who was ultimately convicted of break and enter, and that he would have no reason to be calling the appellant if the appellant had in fact participated in the crime. In his charge to the jury the trial judge reviewed the relevant evidence and advised the jury:

There’s also an issue as to who placed the call. The stolen cell phone was seized from Mr. Altunes. There is no direct evidence, however, as to who made the call. One inference is that Mr. Altunes made it, that would be because the cell phone was on his person. It could have been made by someone else, even Mr. Alves or anyone else that the cell phone had been used by someone else, however, this is all speculation and as I said earlier you’re not to speculate. You may or may not conclude that it would be speculative to conclude that the call on the stolen phone was made by Mr. Altunes to Mr. Alves at the time of the break-ins. However, as I stated to you, it’s your view of the evidence that counts and you’re free to disregard what I say. You are not free to, however, speculate.

[14] Counsel at trial objected to the charge on the basis that there was nothing speculative about finding that the appellant made the phone call and that it would be speculative to find that anyone else made the call. In our view, the evidence went no further than someone made a call on the stolen cell phone to the telephone number at the appellant’s house in Brampton. Duty counsel submitted to us that an inference could be drawn that if such a call were made it was open to the jury to infer that the appellant was at home in Brampton at the time of the offence. In our view to draw such an inference would be speculative. We find no error in the trial judge’s charge on this issue.

[15] Turning to the sentence appeal, the appellant submits that he was entitled to two for one credit for his pre-trial custody. The trial judge viewed this issue thoroughly. He emphasized that the decision to give credit on a two for one basis was discretionary and not subject to a mechanical formula. See R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455. The trial judge declined to give credit on a two for one basis. Among the factors he considered was that there was no evidence that the appellant would avail himself of any programs to rehabilitate himself. He noted that the offence took place less than two months after his release from jail on several convictions for break and enter. He also noted that the reason for the appellant’s pre-trial detention was of his own making – that is, his history of disobeying court orders. Also, this offence occurred about one month after the setting of terms of his recognizance requiring him to stay in his house. In the result the trial judge gave the appellant ten months credit for 17 months pre-trial custody. We see no error in the trial judge’s exercise of discretion to decline to give two for one credit.

[16] In the result the appeal from conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“S. Goudge J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”