CITATION: R. v. Glave, 2011 ONCA 111

DATE: 20110209

DOCKET: C47616

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karl Glave

Appellant

Christopher R. Murphy, for the appellant

Lisa Joyal, for the respondent

Heard and released orally: January 28, 2011

On appeal from the convictions entered by Justice F. Marrocco of the Superior Court of Justice dated February 1, 2006 and the sentence imposed on February 14, 2006.

ENDORSEMENT

[1] The appellant was charged with various offences arising out of four robberies. The trial judge eventually convicted the appellant of two of the robberies and acquitted the appellant on two of the robberies. The appeal relates to the convictions arising out of one of the robberies.

[2] Identification was the main issue on all of the robbery charges. It is evident from the trial judge’s reasons and the different verdicts he arrived at on the different counts that he was fully aware of the frailties of identification evidence and exercised the requisite caution in considering that evidence.

[3] We see no error in the trial judge’s review of the evidence relating to the robbery put in issue on the appeal or his analysis of that evidence. The real issue on this appeal, and the issue stressed by counsel for the appellant, is the reasonableness of the conviction on the robbery charge challenged on this appeal.

[4] We are satisfied that the verdict was not unreasonable. The victim of the robbery had a very good opportunity to observe his assailant, twice prior to the robbery and again during the actual robbery. The victim’s description of the assailant, while somewhat generic, was consistent with the appellant’s appearance in several respects.

[5] The victim picked the appellant’s photograph out of a photo array shown to him some six or seven weeks after the robbery. He did so without hesitation. The manner in which the photo array was conducted was the subject of several submissions on appeal. We agree with counsel that the photo array was not conducted in a manner that accorded with all of the various guidelines that have been set down in the case law. The photo array was not perfect by any means. However, having regard to the totality of the circumstances surrounding the victim’s identification of the appellant’s photograph, we are satisfied that a trier of fact could, acting reasonably, accord significant weight to the victim’s identification of the appellant’s photograph.

[6] Counsel for the appellant, in the course of challenging the reliability of the identification in the photo array, stressed that the photograph of the appellant identified by the victim was taken five years earlier in 1999. A more recent photograph was not available at the time of the photo array. Counsel points to the photograph of the appellant taken in 2004 shortly after the robbery and available after the photo array was administered and argues that the 2004 picture makes it clear that at the time of the robbery in 2004, the appellant did not look like the photograph picked out by the victim in the photo array. Counsel submits that the selection of the 1999 photograph does not provide reliable evidence that the appellant was the person who robbed the victim in 2004.

[7] The two photographs demonstrate that the appellant’s facial features had changed somewhat between 1999 and 2004. The appellant had obviously put on weight and his face was “fuller” in 2004 than it was in 1999. The trial judge also, of course, had the benefit of actually seeing the appellant in the courtroom.

[8] In our view, the difference in the appearance of the appellant in the two photographs was not such as to compel the conclusion that it would be unreasonable to rely on the witness’ identification of the appellant from the 1999 photograph as evidence that the appellant was the person who robbed him in 2004.

[9] The police officer who was familiar with the appellant indicated that while the two photographs certainly showed that the appellant’s features had changed somewhat, it was obvious to him that the photographs were of the same person. We think it was open to the victim to reach the same conclusion.

[10] In addition to the identification evidence already summarized, there was evidence from the cell phone records placing the appellant in the vicinity of the robberies at the relevant time.

[11] The appellant did not testify. We are entitled to consider his failure to testify in assessing the reasonableness of the verdict.

[12] As indicated at the outset, we are satisfied that the verdict was reasonable. The appeal is dismissed.

“Doherty J.A.”

“J.I. Laskin J.A.”

“E.E. Gillese J.A.”