Court of Appeal for Ontario

Citation: R. v. Scott, 2016 ONCA 499

Date: 2016-06-22

Docket: C61666

Before: Doherty, Feldman and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

Percy Basil Scott Appellant

Counsel:

Eva Taché-Green, for the appellant

Michael Fawcett, for the respondent

Heard: June 20, 2016

On appeal from the conviction entered by Justice S. Rogin of the Superior Court of Justice on June 12, 2014 and the sentence imposed on August 18, 2014.

APPEAL BOOK ENDORSEMENT

The Conviction Appeal

[1] This was an overwhelming circumstantial evidence case. The appellant did not testify. The alleged misapprehension of the evidence in respect of the clothing of one of the co-accused and the possession of a backpack by one co-accused are insignificant to the overall case. In any event, it is unclear to us that the trial judge misapprehended the evidence. We make the same comment about the alleged differences in the gun as described by the victims and seen in the photographs from the taxi security camera.

[2] We would not admit the fresh evidence pertaining to the non-existence of the alleyway as described by the taxi driver in his evidence. Counsel cross-examined on the issue at trial and could have further pursued the issue if warranted. He did not.

[3] In any event, the existence of an alleyway was not the significant feature of this part of the evidence. The significance lay in the place and time the taxi driver dropped the appellant and others off and then picked them up and the close proximity in time and place of those activities to the scene and time of the robbery.

[4] The victims’ evidence about the timing of the robbery was understandably uncertain and approximate. Nothing in that evidence precluded or rendered unreasonable the trial judge’s finding that the victims’ estimates of the time when the robbery occurred, coincided with the times at which the appellant was seen on the cab security camera getting in and out of the taxi cab.

[5] Finally, we note that apart from these factual minutiae, the evidence established that the appellant was with a person who had the victim’s blood on his shoes at the time and place very proximate to the robbery. The appellant had a gun like the gun used in the robbery. It defies credulity to claim that the appellant was not a participant in the robbery. The suggestion that the robbery occurred at some other time after the appellant had left the taxi was not raised at trial and is based on speculation.

[6] The conviction appeal is dismissed.