Court of Appeal for Ontario

CITATION: R. v. McDonald, 2012 ONCA 40

DATE: 20120123

DOCKET: C54335

BEFORE: Goudge, Epstein JJ.A., and Newbould J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Keaton McDonald

Appellant

COUNSEL:

Keaton McDonald, appearing in person

Louis P. Strezos, acting as duty counsel

Catherine Mullaly, for the respondent

HEARD: January 16, 2012

On appeal from the conviction entered on August 19, 2011 by Justice Russell J. Otter of the Ontario Court of Justice.

ENDORSEMENT

[1] At the appellant’s request, duty counsel argued his appeal from conviction. Mr. Strezos’ central argument concerned the identification evidence that was the basis for the appellant’s conviction.

[2] The case turned entirely on the identification of the appellant by the victim, to whom he was a stranger. The victim, a white male, was robbed by two black men, one of whom brandished a firearm. The encounter was over in a matter of a few minutes. Subsequently, the victim picked the appellant out of a photo line-up.

[3] The trial judge instructed himself about the great caution with which visual identification generally must be viewed, especially with strangers. However, he did not caution himself expressly about the danger presented by three specific circumstances pointed out by Mr. Strezos: that the identification was interracial; that the encounter was admittedly one of real stress for the victim; and that during the encounter the victim was facing what appeared to be a firearm. Nor did the trial judge explain in his reasons why, despite these difficulties, he accepted the identification made by the victim. Mr. Strezos says that this leaves the reasons for conviction fatally flawed.

[4] Despite his able argument, we would not interfere with the conviction.

[5] The trial judge was clearly aware that this was an identification that was interracial, and arose from a stressful confrontation where a gun was being pointed at the victim. The risks presented by the interracial identification, the stress and the weapon would have been apparent to him. He expressly cautioned himself on the generic risks of identification evidence.

[6] As all trial judges are, this experienced trial judge is taken to know the law. He was not required to expressly avert to the risks arising from the specific circumstances. While he did not expressly offer reasons for rejecting their impact, he gave clear positive reasons for accepting the identification evidence: the victim had a clear and close-up look at the assailant; this persisted over the entire confrontation; and he was looking at the assailant the whole time. The victim then took great care before identifying the appellant in the photo line-up. In our view, on the current state of the law he was required to do no more.

[7] The appeal must be dismissed.

“S.T. Goudge J.A.”

“G.J. Epstein J.A.”

“Newbould J. (ad hoc)”