WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.A., 2016 ONCA 974

DATE: 20161222

DOCKET: C60465

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.A.

Appellant

David Anber, for the appellant

Michael A. Townsend, for the Crown

Heard: December 16, 2016

On appeal from the conviction and sentence entered on April 21, 2015 by Justice C.A. Kehoe of the Ontario Court of Justice (Youth Court).

ENDORSEMENT

[1] The appellant was convicted of one count of attempted robbery. He received a suspended sentence and was made the subject of an 18 month probation order.

[2] He appeals his conviction, arguing that the verdict was unreasonable, the reasons for judgment were insufficient, and the trial judge erred in failing to identify an incident of past recollection recorded and thereby admitted inadmissible evidence. On the hearing of the appeal, the appellant abandoned his third ground of appeal. The appellant also abandoned his sentence appeal.

[3] For the reasons that follow, the appeal is dismissed.

Facts

[4] In March 2013, the complainant, Jing Liu, viewed an ad on the Kijiji classifieds website advertising a MacBook laptop computer for sale for $1,600. Mr. Liu corresponded with the seller by email. After an exchange of emails, it was agreed that the seller would deliver the computer to Mr. Liu’s address on March 29, 2013 at 6 p.m.

[5] Mr. Liu testified that on that day he went down to the lobby of his building to meet the seller. When he got to the lobby he noticed two young males and enquired of them whether they were waiting for someone, and they said they were not. Mr. Liu returned to his apartment and received a call indicating that the seller was in the lobby. He returned to the lobby and the young men asked him if he was looking for the MacBook and he replied that he was. According to Mr. Liu, they said “Here it’s in the bag”, or “Here we have it already, it’s in the bag, I show you”. One of the two men then grabbed Mr. Liu from the back, while the other man searched through Mr. Liu’s pockets and person. Mr. Liu was eventually able to break free from the person holding him. The two men fled. Mr. Liu had $1,600 in his wallet, which was not taken.

[6] Cst. Allan Galipeau and Mr. Liu reviewed the surveillance video from Mr. Liu’s building shortly after the offence. Mr. Liu pointed out to the officer the two individuals who had attempted to rob him.

[7] Detective Michael Donald testified that he contacted the Kijiji office and received confirmation that the email address associated with the ad was the same as the one Mr. Liu corresponded with to set up the sale. That address originated from a Rogers IP address. Rogers confirmed that the account for this IP address is registered to the appellant’s mother.

[8] Detective Donald determined that the ad was placed on March 27, 2013 at 5:00 a.m. This was during a time when the appellant’s family was the lease-holder of the residence listed on the Rogers account.

[9] Detective Donald attended at the residence on June 29, 2013. He brought with him photographs of the suspects derived from the video. The appellant’s brother answered the door. Detective Donald immediately recognized him as one of the two suspects on the video. Shortly thereafter, the appellant appeared at the door. Detective Donald also recognized him as one of the two suspects on the video.

[10] The appellant was eventually charged and convicted of attempted robbery.

Analysis

(i) Unreasonable Verdict

[11] The appellant submits that “no reasonable person and no properly instructed trier of fact” could have found that the Crown had proven beyond a reasonable doubt the identification of the appellant as one of the two persons who attempted to rob Mr. Liu.

[12] We do not agree with this submission. There was ample evidence to support the trial judge’s finding. This included the fact that the online ad was from an IP address registered to the appellant’s mother at a residence in which the appellant resided, Detective Donald’s unchallenged evidence of his immediate recognition of the appellant when he attended at the appellant’s residence, and the trial judge’s comparison of the appellant in court with the individual on the videotape.

[13] The appellant argues that the videotape was not of sufficient clarity to permit his identification. The trial judge acknowledged in her reasons that the video was grainy, but concluded that it was sufficiently clear for her to identify the appellant. That was a finding that was open to her to make. In the circumstances, it is not possible for this court to say that the finding was unreasonable.

[14] In our view, the verdict was not unreasonable or otherwise tainted by legal error.

(ii) Insufficiency of Reasons

[15] According to the appellant, the trial judge’s reasons were inadequate because they did not address the central issue of how the trial judge was satisfied that the videos or photos assisted in the identification evidence.

[16] We disagree. The trial judge reviewed in detail the basis upon which she found that the Crown had proven the identification of the appellant beyond a reasonable doubt. Specifically, she referred to the evidence tying the email address used in the ad to the appellant’s residence, the evidence of Detective Donald regarding his identification of the appellant and his brother at their residence, and finally her identification of the appellant in the video. The trial judge was not required to detail the specific physical features she relied upon in coming to the conclusion that the appellant was the person in the video.

Disposition

[17] The appeal is dismissed. The sentence appeal is dismissed as abandoned.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”