COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Menzies, 2015 ONCA 591

DATE: 20150831

DOCKET: C58532

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Robert Menzies

Appellant

Lance Beechener and Eva Taché-Green, for the appellant

Kathleen Healey, for the respondent

Heard: August 24, 2015

On appeal from the convictions entered on May 15, 2013 by Justice Marvin A. Zuker of the Ontario Court of Justice.

ENDORSEMENT

[1] Mr. Menzies appeals his convictions for possession of heroin for the purposes of trafficking and breaking and entering. He submits that the convictions were unreasonable and that the trial judge provided insufficient reasons for finding him guilty on the breaking and entering count.

[2] With respect to the possession of heroin for the purposes of trafficking count, the appellant submits that the conviction was unreasonable because the trial judge could have reasonably concluded that he was in possession of the heroin for personal use. The appellant relies upon the fact that the Crown’s expert witness conceded in cross-examination that the quantity of heroin possessed by the appellant could have been for personal use and the fact that two pipes used for smoking drugs were seized at the scene.

[3] We would not give effect to this ground of appeal. On the evidence before him, the trial judge was entitled to conclude that the appellant was in possession of heroin for the purposes of trafficking. The Crown’s expert witness testified in chief that the amount of heroin seized was a large quantity, equivalent to approximately 29 hits of heroin. There were a number of other indicia of trafficking in this case, including the variety of drugs found, the packaging of the heroin in quarter and half gram amounts, the presence of scales and multiple mobile phones, and the $1,650 in cash seized. In addition, the appellant did not testify and thus offered no competing explanation for his possession of the heroin. In these circumstances, we are not persuaded that the verdict was unreasonable.

[4] On the breaking and entering count, the Crown’s case rested entirely on the complainant’s identification of the appellant in a police photo line-up as the intruder who broke into his home. At trial the appellant raised four arguments on the issue of identification: (i) the complainant observed the appellant for only a few seconds in a traumatic situation upon waking up, and without his glasses on; (ii) the appellant’s neck tattoos were not “tribal art” as described by the complainant, but were English words; (iii) the complainant’s roommate was not able to identify the appellant as the intruder; and (iv) there are inherent frailties with eyewitness identification evidence generally and certainty should not be confused with reliability.

[5] The appellant submits that the fact that the tattoos on his neck were misidentified by the complainant is exculpatory evidence that renders the verdict unreasonable and requires the entering of an acquittal. We decline to make that order. The evidence regarding the neck tattoos was only one part, albeit an important part, of the evidence on identification. There were other features (e.g. the appellant’s bone structure and ethnicity) relied upon by the complainant to identify the appellant in the photo line-up. We cannot conclude that a trier of fact acting reasonably on this record could not convict the appellant. Therefore, the appellant has not met his onus of establishing that the conviction is unreasonable.

[6] We do accept the appellant’s submission that there must be a new trial on the breaking and entering count for the following reasons. First, the trial judge’s reasons for judgment on this count consisted of one sentence to the effect that he was satisfied beyond a reasonable doubt that the complainant identified the appellant. The reasons do not permit meaningful appellate review. Nowhere did the trial judge address any of the appellant’s submissions on the frailties in the identification evidence and thus his reasoning process on these issues is not apparent. Second, there is no basis in the record to conclude that the trial judge seized upon the danger of equating the confidence level of the identification witness with the accuracy of his evidence. To the contrary, from an exchange with defence counsel it appears that the trial judge may have engaged in this impermissible reasoning.

[7] The conviction and sentence for the break and enter count is set aside and a new trial is ordered on that count. The appeal is otherwise dismissed.

“John Laskin J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”