COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Watt, 2014 ONCA 24

DATE: 20140110

DOCKET: C55666

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Michael Watt

Appellant

Emily Lam, for the appellant

Michael Perlin, for the respondent

Heard: January 9, 2014

On appeal from the conviction entered by Justice Dianne Pettit Baig of the Ontario Court of Justice on March 19, 2012 and the sentence imposed on May 7, 2012.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the appeal must be allowed. The trial judge’s observation that the witnesses “looked at” the appellant in the course of their evidence could not, standing alone, have any evidentiary value. The mere act of looking at someone, particularly an accused in a courtroom, is simply too equivocal to warrant a finding of fact based on it.

[2] We note that identity was clearly in issue during the trial and the Crown did not ask the witnesses to provide any “in dock” identification. Further, Crown counsel at trial conceded there was no evidence of identification.

[3] We are also satisfied that the circumstantial evidence did not provide a basis upon which the trier of fact could reasonably conclude that the appellant was the person who attacked the victim. In our view, there was no evidence of identification.

[4] The Crown accepts that if there was no identification evidence, the trial judge erred in law in failing to acquit at the end of the Crown’s case. He concedes that the proviso cannot be applied.

[5] The appeal is allowed, the conviction is quashed and an acquittal is entered.

[6] The sentence appeal was abandoned prior to the hearing.