Court of Appeal for Ontario

CITATION: R. v. Rae, 2013 ONCA 556

DATE: 20130911

DOCKET: C56392

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Adam Rae

Applicant/Appellant

Counsel:

Robert Sheppard, for the appellant

Katie Doherty, for the respondent

Heard and released orally: September 6, 2013

On appeal from the conviction entered on August 1, 2012 and the sentence imposed on October 5, 2012 by Justice Alan W. Bryant of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction by Bryant J. of the Superior Court of Justice for robbery while armed with an offensive weapon and carrying a concealed weapon.

[2] The appellant contends that the trial judge erred in his analysis of the reliability of the identification evidence relating to the appellant. Specifically, the appellant submits that the trial judge did not take sufficient account of the fact that both identification witnesses, the appellant’s neighbour, Ms. Fitzsimmons, and the police officer involved in a previous robbery case, Constable Racher, were informed about the possibility that the appellant was the convenience store robber before they identified him as the person in the convenience store video. In short, the appellant suggests that the Fitzsimmons and Racher identification evidence was tainted by ‘pre-suggestion’ and, therefore, should have been discounted as the principal basis on which the trial judge convicted the appellant.

[3] We do not accept this submission. The trial judge was clearly aware of the pre-suggestion factor. However, Ms. Fitzsimmons had lived across the street from the appellant for about two years and had regular personal contact with him. Constable Racher had spent 15 to 20 minutes visiting the appellant in an interview room following a robbery of a gas station; this visit took place approximately two weeks before she identified the appellant as the person shown in the convenience store video.

[4] In these circumstances, the trial judge did not err by labelling Fitzsimmons’ and Racher’s evidence as ‘recognition’ evidence. Nor did he err by relying on it to establish the appellant’s guilt beyond a reasonable doubt in the robbery of the convenience store.

[5] The appellant also submits that the trial judge, who saw the appellant in court throughout the trial and viewed the convenience store video, erred by not expressing his own opinion about the reliability of the identification evidence.

[6] We disagree. The leading case in this area, R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, permits, but does not require, a trial judge to make observations along these lines. In the present case, the trial judge was entitled to rely on the strong identification evidence of the two witnesses, without supplementing it with his own opinion based on his viewing of the video and comparison with the appellant’s appearance in the courtroom.

[7] The appeal is dismissed.

“John Laskin J.A.”

“J.C. MacPherson J.A.”

“David Watt J.A.”