Court of Appeal for Ontario

Citation: R. v. Gobin, 2015 ONCA 865

Date: 20151209

Docket: C58241

Before: Feldman, Gillese and Watt JJ.A.

Between

Her Majesty the Queen

Respondent

and

Kenneth Gobin

Appellant

Counsel:

Theodore Sarantis, for the appellant

Michael Fawcett, for the respondent

Heard and released orally: December 4, 2015

On appeal from the conviction entered on February 26, 2013 and the sentence imposed on July 19, 2013 by Justice Mark Edwards of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant raises five grounds of appeal.

[2] In describing the narrative of the investigation, the officer explained how he formed the opinion that the appellant was the suspect and why he seized items of clothing from him. Defence counsel asked the judge to give the jury two limiting instructions on the fact that the evidence went in only as narrative.

[3] Counsel submits now that the jury should have been told that the evidence could not have been used as expert opinion evidence of the officer on the guilt of the appellant. We do not agree. The jury understood that it was their job to decide guilt or innocence and that the officer’s evidence was only narrative.

[4] Second the appellant submits that the trial erred by judge referring to the witness, Maylin Garcia, in his charge to the jury as an eyewitness, thereby, the appellant submits, elevating the reliability of her evidence. There is no merit to this submission. She was an eyewitness and the proper instruction was given on the frailties of eyewitness evidence.

[5] The third submission is that the jury was not instructed on the proper use of prior statements of the witness, Maylin Garcia. There is also no merit to this submission. It is clear that the defence got the benefit of the substance of those statements without a strict analysis of whether they were adopted by the witness.

[6] The appellant also objects to the trial judge’s finding that the search warrant not be quashed. The trial judge applied the Garofoli analysis. There is no basis to interfere with his conclusion. Therefore there is no need to address the admissibility of the evidence under s. 24(2) of the Charter.

[7] In the result, the appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”