Court of Appeal for Ontario

Date: 2017-03-08 Docket: C58614

Judges: Rouleau, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Mark Moore Appellant

Counsel and Hearing

Mark Moore, by videoconference Amy Ohler, duty counsel Michael Fawcett, for the respondent

Heard and released orally: March 8, 2017

On appeal from: the conviction entered on February 3, 2014 and the sentence imposed on March 26, 2014 by Justice Ian MacDonnell of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted of a number of offences arising out of a robbery at a jewellery store. He advances three grounds of appeal on conviction and argues that the sentence imposed was too long.

[2] First, he argues that the verdict is unreasonable as the evidence at trial was equally consistent with the appellant being a fence as opposed to one of the robbers.

[3] We disagree. The trial judge specifically considered this theory, which was advanced by the appellant at trial. He set out 14 items of circumstantial evidence that pointed to the appellant having perpetrated the robbery. As the Crown submits, several of those items are not consistent with the appellant's role being limited to that of a fence. As explained by the trial judge:

… when all of the circumstances are considered together it is manifest that he was more than a fence. Considered cumulatively and as a whole, the circumstantial evidence admits of only one rational inference, namely that Mr. Moore was one of the two masked men who committed the Arax robbery.

[4] The second error advanced by the appellant is that the trial judge failed to recognize that Mr. Khan was an unsavoury witness deserving of a Vetrovec caution.

[5] We disagree. As his reasons show, the trial judge was alert to Mr. Khan's background and the inconsistencies in and other concerns with Mr. Khan's testimony. In his review of Mr. Khan's evidence, the trial judge in effect carried out the Vetrovec analysis, including looking for confirmatory evidence. In these circumstances, in this judge alone trial, a formal Vetrovec caution was not, in our view, required.

[6] The third error alleged by the appellant is that the trial judge misapprehended the evidence in several respects.

[7] We do not give effect to this submission. Our role is not to retry the case. In his comprehensive reasons, the trial judge properly dealt with the areas of concern raised by the appellant on appeal. He was aware of the inconsistencies and explained the basis of his factual findings. We see no error in these findings.

[8] The appellant places particular emphasis on the trial judge's findings concerning the appellant's sweater on which a logo appears in the corner. A comparable sweater was seen to be worn by one of the perpetrators of the robbery and is shown on the video of the robbery. The trial judge was well aware of the uncertainties concerning the colour of the sweater. However, the importance of the sweater rested not on the colour, but rather on the steps taken by the appellant to dispose of it immediately upon learning of the arrest of the other two participants in the robbery. We see no error in the trial judge's treatment of this evidence.

[9] With respect to sentence, in our view, the sentence of 12 years was entirely fit in the circumstances of this case. Specifically, we see no error in how the trial judge dealt with the appellant's involvement in the shooting of Mr. Khan when fashioning an appropriate sentence.

[10] For these reasons, the conviction appeal is dismissed, leave to appeal sentence is granted, but the sentence appeal is dismissed.

Paul Rouleau J.A. S.E. Pepall J.A. L.B. Roberts J.A.