R. v. Bernard, 2011 ONCA 106

CITATION: R. v. Bernard, 2011 ONCA 106

DATE: 20110209

DOCKET: C48707

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Gregory Bernard

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

Greg Skerkowski, for the respondent

Heard and endorsed: February 1, 2011

On appeal from conviction entered by Justice Thomas Dunn of the Superior Court of Justice, sitting with a jury, dated June 14, 2007 and sentence imposed, dated August 21, 2007.

APPEAL BOOK ENDORSEMENT

[1] The focus of the appellant’s appeal was narrowed in oral argument. The issue of the admissibility of Singh’s identification evidence was not pursued, nor was the challenge to the admissibility of the police officer’s identification evidence pursued.

[2] The two remaining matters in issue relate to the trial judge’s instructions on Singh’s eyewitness identification evidence and his Vetrovec warning regarding the main Crown witness Mr. Iqbal.

[3] The primary purpose of the identification evidence in this case was as confirmation of Mr. Iqbal’s testimony implicating the appellant. In that sense, this case is distinguishable from the court’s decisions in Baltovich and Brown where the eyewitness identification evidence was central to the Crown’s case.

[4] The appellant contends that the trial judge’s instructions on Singh’s evidence were deficient because the trial judge failed to detail the specific alleged frailties in that evidence except when he outlined the position of the defence. While we agree that it might have been preferable had the trial judge been somewhat more detailed in alerting the jury to the potential frailties in Singh’s identification evidence, we are not persuaded that this omission was fatal in this case. As indicated, the eyewitness identification evidence was not central to the Crown’s case. Moreover, the asserted frailties were drawn to the jury’s attention by defence counsel immediately before the charge. In any event, there was other compelling evidence that was capable of confirming Iqbal’s account that was not, but could have been drawn to the jury’s attention.

[5] Accordingly, this ground fails.

[6] With respect to the Vetrovec instructions, we are satisfied that when the charge is read as a whole, the jury would have understood the danger in relying upon Iqbal’s evidence and the need to look for independent confirmatory evidence before relying on it to convict. Accordingly, this ground of appeal also fails.

[7] In concluding, we note that competent defence counsel raised no objection to the matters the appellant now raises on appeal.

[8] Accordingly, the appeal is dismissed. The appeal from sentence is dismissed as abandoned.