COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Armstrong, 2012 ONCA 57

DATE: 20120130

DOCKET: C51658

O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Armstrong

Appellant

Counsel:

Dale E. Ives, for the appellant

Grace Choi, for the respondent

Heard and released orally: January 27, 2012

On appeal from the conviction entered on November 3, 2009 and the sentence imposed on December 8, 2009 by Justice Wayne Rabley of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of robbery of a convenience store. The Crown alleged he was a party by having scouted out the store before the robbery.

[2] The appellant argues that the trial judge misapprehended some evidence and did not give effect to other evidence that could have raised a reasonable doubt. We see no basis to interfere.

[3] The trial judge did not misapprehend any of the evidence that was essential to his finding of guilt, nor any evidence that could possibly have affected the outcome.

[4] The case against the appellant was overwhelming. The store clerk knew the appellant who was a regular customer. He identified the appellant as the person who entered the store and left without buying anything shortly before the masked robber entered. Neighbours living close to the store testified about seeing the interactions of two men outside the store just before one of them put a black shirt around his face in the presence of the other.

[5] After the masked man came out of the store, witnesses at various vantage points observed two men running away from the store and eventually into the back unit of 110 Delaware Street. Within minutes, the police found two men in that unit, one of whom was the appellant. There was evidence that the two men had been cutting or shaving their hair and changing their clothes in the unit. The police found a roll of cash totalling $270 underneath a laundry basket in a cupboard. This was the amount the store owner estimated was stolen during the robbery.

[6] The appellant also argues that the trial judge wrongly used the appellant’s utterances to the police to draw an inference of guilt. We do not agree with this argument. In any event, there was no prejudice. The remaining evidence was overwhelming as to the appellant’s guilt.

[7] In the result, the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“O’Connor J. (ad hoc)”