COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mailhot, 2015 ONCA 637
DATE: 20150921
DOCKET: C57454

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Matthew Mailhot
Appellant

Counsel:
Matthew Mailhot, appearing in person
Louis P. Strezos, as duty counsel
Eric Siebenmorgen, for the respondent

Heard and orally released: September 15, 2015

On appeal from the conviction entered by Justice F.L. Forsyth of the Ontario Court of Justice, dated September 11, 2012 and the sentence imposed on June 27, 2013.

ENDORSEMENT

[1] In our view, the witnesses were qualified to give opinion evidence identifying the appellant as the “kicker” in the video shown in court. The witnesses were acquainted, to some extent, with the appellant and had viewed a video of the assault immediately after the assault occurred. They also saw the appellant immediately after viewing that video. All of these circumstances, referred to by the trial judge, placed the witnesses in a better position than the trial judge to make an identification based on the video shown in the courtroom.

[2] We see no reason to doubt the provenance of the video shown in the courtroom or to question the failure to produce the entire actual cell block video at trial. The reasons of the trial judge make it clear that the parties agreed as to what would be shown to the witnesses in court. We are also satisfied from the record that the entire cell block video was available.

[3] We have considered the exculpatory evidence highlighted by Mr. Strezos, duty counsel, in his submissions. Two of the three pieces were in fact addressed and analyzed by the trial judge in his reasons. The third, an officer’s identification of someone other than the appellant, was referred to in passing by the trial judge in his summary of the evidence, but was not separately addressed by the trial judge in his analysis of the evidence. Trial judges are not required to review every piece of evidence in the course of their analysis. It cannot be said that this evidence was so central as to make the failure to specifically refer to that evidence in the course of analysis as fatal to the conviction.

[4] The conviction appeal is dismissed.

[5] The appellant has served the custodial term of his sentence and does not wish to pursue the sentence appeal. The sentence appeal is dismissed.

“Doherty J.A.”

“M.H. Tulloch J.A.”

“Grant Huscroft J.A.”