Court of Appeal for Ontario

Citation: R. v. Babinski, 2013 ONCA 490

Date: 2013-07-19

Docket: C52756

Before: Laskin, Gillese and Strathy JJ.A.

Between:

Her Majesty the Queen Respondent

and

Darryl Babinski Appellant

Counsel: Graham T. Clark for the appellant Andreea Baiasu for the respondent

Heard and released orally: July 15, 2013

On appeal from the conviction entered on November 17, 2008 and the sentence imposed on June 10, 2010 by Justice Paul Rivard of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] After a trial before Justice Rivard and a jury, the appellant Darryl Babinski was convicted of robbery, attempt to obstruct justice, breaking and enter, uttering a threat and mischief to property. He was sentenced to nine years imprisonment less four years credit for pre-trial custody and was designated a long-term offender. He appeals both his conviction and sentence. On the sentence appeal he seeks leave to introduce fresh evidence

A. THE CONVICTION APPEAL

[2] The appellant makes two submissions: 1) the trial judge erred in his instructions to the jury on the in-dock identification of the appellant by the three neighbours; 2) the trial judge erred in failing to disqualify a juror who acknowledged being acquainted with one of the police officers who testified.

[3] We did not call on the Crown on the second ground. The trial judge did not err in exercising his discretion not to disqualify the juror. We then turn to the trial judge’s instructions on the eye witness identification.

[4] The appellant’s defence at trial was that he was not the perpetrator. Thus, identity was an issue for the jury. The appellant has two branches to his argument. First, he submits that the trial judge ought to have instructed the jury that the absence of a photographic lineup was unfair, or at least the trial judge ought to have instructed the jury that the in-dock identification was of no weight. Second, he submits that the trial judge ought to have instructed the jury that the in-dock identification could not be used to confirm Ms. Geggie’s identification evidence.

[5] As is invariably the case, context is important. In this case, the trial judge’s instructions must be looked at in the light of three contextual factors:

i. the appellant was not a stranger to the complainant. Ms. Geggie knew the appellant and identified him as the intruder from the very beginning;

ii. her eye witness identification was confirmed by the evidence of Mr. Guy, who also knew the appellant and was party to the phone calls that gave rise to the obstruct justice conviction; and

iii. Ms. Geggie was not a classic Vetrovec witness. She was 18, had no criminal record and was the victim.

[6] Having regard to these contextual factors, we are satisfied that the trial judge’s instructions on the in-dock identification were adequate. On the first branch of the appellant’s argument, we note that some of the trial judge’s language was taken directly from the Supreme Court of Canada’s decision in Hibbert. Further, the trial judge expressly told the jury about the dangers of relying on in-dock identification. In the context of this case, these instructions were adequate.

[7] On the second branch of the appellant’s argument, we are satisfied that the trial judge’s instructions to consider whether there was any evidence to confirm Ms. Geggie’s eye witness identification did not prejudice the appellant. The further instructions sought by the appellant would have highlighted the several parts of the evidence that confirmed Ms. Geggie’s testimony.

[8] Accordingly, the conviction appeal is dismissed.

B. THE SENTENCE APPEAL

[9] The sentence was fit when it was imposed. And, we do not think that the fresh evidence alters the fitness of the sentence. If anything, the fresh evidence confirms that the appellant remains a high risk to reoffend, and thus confirms the wisdom of a long term supervision order. Although the evidence shows that the appellant does not have access to one of the aboriginal healing centres, there is no evidence that other centres are unavailable to him. Rather, the appellant appears to have taken little or no interest in developing a release plan.

[10] Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

"John Laskin J.A."

"E.E. Gillese J.A."

"G.R. Strathy J.A."