CITATION: R. v. Slater, 2010 ONCA 376

DATE: 20100521

DOCKET: C51169

COURT OF APPEAL FOR ONTARIO

Moldaver, LaForme and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Gordon Allen Slater

Appellant

Paul Calarco, for the appellant

Holly Loubert, for the respondent

Heard and released orally: May 14, 2010

On appeal from conviction by Justice Thorburn of the Superior Court of Justice, dated September 12, 2008, and sentence imposed dated November 5, 2008.

ENDORSEMENT

[1] The appellant was found guilty of robbery and sentenced to eight and a half years imprisonment, less credit for time spent in pre-trial custody. He appeals from both conviction and sentence.

[2] The trial judge’s reasons for conviction disclose no error. She applied the correct principles of law in determining that Ms. Nowak’s lay opinion evidence was admissible. We see no error in this regard, either in her analysis or conclusion. On this point, we note that the trial judge acted with care and refused to admit the proposed evidence of Detective Fairey as lay opinion evidence because of its weaknesses.

[3] We are also satisfied that it was open to the trial judge to use her own observations of the accused and the photographs from the bank in concluding that the accused before her was the person depicted in the photographs. The trial judge instructed herself in accordance with the principles in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, and in our view, she made no error in concluding that the photographs from the bank were of sufficient clarity and strength that they could be used to identify the accused as the person depicted in them.

[4] Contrary to the submission of the appellant, the trial judge was not required to go into detail or specify the particular features of the accused that enabled her to make the comparison for identification purposes. Here, the trial judge noted that “the robber’s general physique, his ears, neck, nose, goatee and general facial shape are all clearly visible in the photographs” and based on the observations of the appellant throughout the trial, she was satisfied that “the features of the robber shown in the 17 photographs are strikingly similar to those of [the accused].” Nothing more was required.

[5] Finally, the trial judge was aware of the failure of the investigating officer to follow every element of the “Sophonow” line-up protocol. She was nonetheless satisfied that the deficiencies did not prevent her from relying on Mr. Galati’s identification evidence. We see no error in the trial judge’s approach. The pictures in the photo line-up were in our view, sufficiently representative. They were shown sequentially to Mr. Galati. He was told that the suspect’s picture might or might not be included, and according to his evidence, which the trial judge accepted, he was not prompted or influenced in any way by the investigating officer.

[6] As for the evidence of Ms. Sleczkowski, the other bank employee, the trial judge quite properly accorded little weight to her identification evidence. Given the very brief time that Ms. Sleczkowski had to observe the appellant, her mistaken belief that he had dark eyes as opposed to blue eyes (the true colour of the appellant’s eyes), is of no moment and certainly insufficient to exclude the appellant as the robber.

[7] In sum, the appellant has failed to satisfy us that the trial judge made any legal or factual errors in her analysis. On the contrary, the trial judge instructed herself correctly on the applicable legal principles and considered the whole of the evidence in arriving at her conclusion that the Crown had proved its case beyond a reasonable doubt. We see no basis for interfering with that conclusion and the appeal from conviction is accordingly dismissed.

[8] As for sentence, the trial judge did not sentence the appellant on the basis that he was in fact armed during the robbery, despite making several slips in her reasons to this effect. This was made clear at the conclusion of her reasons in an exchange with Crown and defence counsel. The sentence imposed by the trial judge (eight and a half years less credit on a two for one basis for the 392 days the appellant had spent in pre-trial custody) was in our view measured. We see no basis for interfering with it. Indeed, it comes within the range of sentence suggested by the appellant’s trial counsel.

[9] Accordingly, the appeal from sentence is also dismissed.

Signed: “M. J. Moldaver J.A.”

“H. S. LaForme J.A.”

“Paul Rouleau J.A. ”