COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muir, 2013 ONCA 470

DATE: 20130709

DOCKET: C51598

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Muir

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Robin Flumerfelt, for the respondent

Heard: July 3, 2013

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on December 7, 2009.

ENDORSEMENT

[1] The appellant was convicted of two counts of robbery with a firearm and several related firearms offences after a two-week jury trial. He received a sentence of 8 years in prison, minus pre-sentence custody. He appeals his convictions.

[2] On October 18, 2006, the appellant and four others robbed a drug dealer at gunpoint inside his home. A high-speed chase with police ensued, ending when the robbers’ getaway car crashed into police cruisers. The appellant fled the vehicle and the police pursued him on foot. The appellant was caught, subdued, and arrested, while the other perpetrators were arrested in the vehicle. The police found the three firearms used in the home invasion, along with the stolen money, drugs, and property, in the getaway car.

[3] The first issue on appeal relates to the in-dock identification of the appellant by Mr. McLeod, the registered owner of two of the firearms that were found in the vehicle. Mr. McLeod testified that a young man from Toronto named “Doug” had visited the tenant who resided in his basement every two weeks during the summer months prior to the robbery. Doug, who matched the appellant’s general description, had socialized with Mr. McLeod on a few occasions and had expressed an interest in Mr. McLeod’s handguns. Mr. McLeod only discovered that his handguns were missing after the robbery.

[4] Although Mr. McLeod was unable to select the appellant from a photo lineup some nine months later, his description of “Doug” was admitted at trial, along with an equivocal in-dock identification of the appellant.

[5] The appellant argues that the trial judge erred in failing to conduct a voir dire to determine whether the probative value of Mr. McLeod’s identification evidence outweighed the prejudicial effect of admitting the evidence. Had she done so, she would not have admitted it. Further, the appellant submits that the trial judge erred in failing to instruct the jury that the in-dock identification had no probative value.

[6] The second issue on appeal relates to the testimony of the victim’s neighbour Mr. Pugh, who testified that he saw one of the perpetrators pointing a gun. That person was wearing a blue hooded jacket. The evidence at trial was that the only person involved in the home invasion who wore a blue hooded jacket was the appellant. The appellant argues that the trial judge’s charge to the jury did not adequately warn the jury concerning the frailties of this identification evidence and was deficient, in that it failed to link the general frailties of identification evidence with the specific circumstances of this case.

[7] In our view, the appeal must be dismissed. In oral submissions, the appellant conceded that the trial judge’s decision to rule on the admissibility of Mr. McLeod’s evidence without having received viva voce evidence is moot on appeal. The critical question, therefore, is whether his evidence was admissible.

[8] In-dock identifications are presumptively admissible, subject to the requirement of a proper limiting jury instruction. In virtually all cases, therefore, in-dock identification evidence is admitted, subject to such an instruction. The appellant argues that this is an exceptional case where the prejudicial effect of the in-dock identification evidence exceeds its probative value, and the evidence should have been excluded.

[9] We agree with the Crown that the in-dock identification in this case was properly admitted, as it was relevant in several respects. Specifically, once Mr. McLeod had testified about his contact with Doug, his description of Doug, and Doug’s interest in the handguns, the jury may well have drawn an adverse inference if Mr. McLeod had not been asked if Doug was in the courtroom. See R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 49. Further, the in-dock identification provided context to the appellant’s argument that Mr. McLeod’s failure to select the appellant from a photo lineup conducted some time before trial proved the appellant’s innocence. See R. v. Maragh, 2007 ONCA 681, 229 O.A.C. 232, at para. 10. The concern as to the prejudicial effect of admitting the evidence could be adequately addressed through a strong and unequivocal caution.

[10] We are of the view that the trial judge’s instructions on the frailties of identification evidence were adequate. The caution given was indeed strong and unequivocal. After cross-examination, Mr. McLeod was no longer sure that the appellant was the “Doug” he had met several times over the summer. The trial judge noted this change in Mr. McLeod’s testimony and told the jury to either give it no weight or only the slightest value. This caution was coupled with specific reference to the other frailties in Mr. McLeod’s evidence, including his failure to identify the appellant in a photo lineup held much closer to the date of the offence. Nothing further was required in the circumstances.

[11] We also note that this case is quite different from the classic case where the in-dock identification is central to the Crown’s case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court. Here, the appellant was caught fleeing the scene and the in-dock identification was only one of several pieces of evidence linking the appellant to the guns found in the car. In addition, Mr. McLeod had had considerable contact with Doug over a summer and had given police a description of Doug that resembled the appellant.

[12] With respect to the appellant’s second ground of appeal, we see no error in the way the trial judge dealt with the evidence of Mr. Pugh. Mr. Pugh observed part of the robbery and although he could describe the colour of the hooded jacket on the person brandishing a gun, he was unable to identify the appellant. Cautions about lighting conditions, vantage point, and the brevity of Mr. Pugh’s observations were all given by the trial judge. The appellant’s closing submissions highlighted the weaknesses in Mr. Pugh’s evidence and the trial judge twice referred to the appellant’s submission on this point. In our view, a more extensive caution was not necessary in the circumstances.

[13] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”