Court of Appeal for Ontario

CITATION: R. v. Davy, 2015 ONCA 38

DATE: 20150122

DOCKET: C57104

BEFORE: Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheimene Davy

Appellant

COUNSEL:

Michael Dineen, for the appellant

B. Crackower, for the respondent

HEARD: January 8, 2015

On appeal from the conviction entered and sentence imposed by Justice Steven R. Clark of the Ontario Court of Justice, dated January 10, 2013.

APPEAL BOOK ENDORSEMENT

[1] The sentence appeal is dismissed as abandoned. We would dismiss the conviction appeal.

[2] The trial judge characterized the alibi evidence as “vague”. That characterization was a reasonable one. He also placed significant weight on the late disclosure of the alibi (almost two years after the relevant event). He was entitled to do so.

[3] The trial judge reviewed the evidence of the eyewitnesses in some detail. He outlined the position of the defence and the various dangers inherent in the evidence. While contrary to the trial judge, we would describe the opportunity to observe as “fleeting”, we would not interfere with the trial judge’s assessment of the evidence.

[4] This was a recognition case and not an identification case. Two witnesses, acting independently of each other, made the recognition. The trial judge’s reasons fully explain why the trial judge chose to accept and act on the evidence of the witnesses.

[5] The appeal is dismissed.