COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coady, 2015 ONCA 479

DATE: 20150626

DOCKET: C59399

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Coady

Appellant

Richard Fedorowicz, for the appellant

Jennifer Mannen, for the respondent

Heard: June 23, 2015

On appeal from the convictions entered on March 21, 2014 by Justice C. Rolland Harris of the Ontario Court of Justice.

ENDORSEMENT

[1] The trial judge convicted the appellant of breaking and entering with intent to commit an indictable offence, assault with a weapon, uttering a threat, and, two counts of failure to comply with probation. He appeals his convictions on three grounds, namely, that the trial judge: (i) misapprehended evidence; (ii) rendered an unreasonable verdict; and, (iii) erred in his approach to the identification evidence.

[2] The complainant, a 15 year old young man was awakened in his home around 4 a.m. by the sound of his dog barking. He saw a light near the family car, went outside to investigate and saw a man. The man ran away and the complainant chased him. When the complainant caught up to the man at a unit (unit 35) in a nearby housing complex, the man picked up a steel pipe and hit the complainant in the chest. Shortly thereafter, the complainant saw a man he identified as the intruder enter the same housing unit, unit 35. He reported all of this to the police who knocked on the door of unit 35 but received no answer.

[3] About four hours later, police called and spoke to the occupant of the unit – the appellant – to tell him to come outside and talk to them. Ten minutes later, the appellant came outside. His head was shaved, with a fair amount of blood flowing from it.

[4] The real complaint on this appeal is that the appellant disagrees that the evidence of identification was sufficient to support the convictions. We disagree. This was not a case based exclusively on identification evidence.

[5] There was a constellation of evidence that included the eyewitness identification of the complainant who pursued the appellant on foot and where the appellant numerous times looked back at his pursuer. The trial judge found the complainant’s evidence to be both credible and reliable. None of it was misapprehended by the trial judge.

[6] The trial judge’s reasons make it abundantly clear that he was well aware of the frailties of identification evidence. Accordingly, he did not consider the evidence of the eyewitness in isolation; rather, it was correctly considered by him together with other strong circumstantial evidence. This evidence included the pursuit of the intruder, and, a short time after the pursuit ended, a person who appeared to be the intruder running into unit 35 where the police, moments later, arrived and knocked on the door but did not receive an answer. The appellant, after speaking on the phone with police, then exited the house ten minutes later with his head freshly shaven and bleeding.

[7] The trial judge found as a fact that the appellant had hurriedly shaved his head in the time between the police phone call and when he exited the premises. On all the evidence, the trial judge was entitled to find that the appellant had shaved his head in order to attempt to disguise his identity.

[8] It is arguable that the trial judge may have placed some weight on the fact that the appellant was likely the person who robbed the mother in the past. If so, this could amount to impermissible propensity reasoning. However, the trial judge clearly noted that his remarks in this regard were “not integral to this case”. In any case, it is our view that the result would be the same without any consideration of these remarks.

[9] Assessing the evidence all together as was required, it was more than capable of supporting the inferences and findings of fact the trial judge made. He did not misapprehend any evidence and in particular he properly assessed the identification evidence. The verdicts were supported by the evidence and were not unreasonable.

[10] The appeal is dismissed.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”