Court File and Parties

Citation: R. v. Krnic, 2010 ONCA 568 Date: 2010-08-31 Docket: C50825

Court of Appeal for Ontario Before: Blair, MacFarland, and Watt JJ.A.

Between:

Her Majesty The Queen Respondent

and

Thierry Krnic Appellant

Counsel: R. Pillay, for the appellant Peter Scrutton, for the respondent

Heard: August 30, 2010

On appeal from the conviction imposed by Justice Joseph M Fragomeni of the Superior Court of Justice dated August 8, 2008.

Endorsement

[1] Mr. Pillay raises two arguments on behalf of the appellant. He submits first, that the trial judge erred by improperly assessing the identification evidence of Sgt. Curtis and, secondly, by failing to re-open the trial and consider the fresh evidence booking photo of the accused.

[2] We do not accept either submission.

[3] The trial judge’s reasons for conviction demonstrate that he was alive to the dangers and frailties of eyewitness testimony and the record contains ample circumstantial evidence to support his findings. We are satisfied in reviewing his reasons that the trial judge did not commit the error of conflating the confidence level of Sgt. Curtis’ identification with the accuracy of his evidence.

[4] Nor do we accept that the trial judge erred in failing to re-open the trial or declare a mistrial on the basis of the “fresh evidence” subsequently tendered in the form of the appellant’s booking photo. Contrary to the appellant’s submission, we do not accept that the photo presents materially dissimilar features of the appellant from those described by Sgt. Curtis. Sergeant Curtis testified that the driver of the stolen truck was of European complexion with long, black messy hair. While one could argue whether the hair in the photo is “long”, it certainly appears to be black and messy, and we see no error in the trial judge’s observation that “it is only speculation as to what Sgt. Curtis (if cross-examined) may have said about the photo” and that it is a question what would be “his definition of messy hair, or long hair or black versus dark hair”. Nor do we see any error in his inference that trial counsel (in the absence of any claim of ineffective assistance) made a tactical decision not to introduce the photo or cross-examine Sgt. Curtis on it at trial. As the trial judge noted, “there is a strong inference that [the appellant was] seeking to conduct another trial to be able to conduct his trial in a different manner.

[5] The appeal is therefore dismissed.