Court of Appeal for Ontario

Date: 2017-05-17 Docket: C61712

Panel: MacPherson, Blair and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

Russell Bullock Appellant

Counsel

Janani Shanmuganathan, for the appellant

Andrew Cappell, for the respondent

Heard

May 16, 2017

Appeal Information

On appeal from the conviction entered on April 8, 2015 and the sentence imposed on June 30, 2015 by Justice Alfred J. O'Marra of the Superior Court of Justice.

Reasons for Decision

Overview

[1] On April 8, 2015, O'Marra J. of the Superior Court of Justice convicted the appellant, Russell Bullock, of several home invasion related charges involving a firearm, including armed robbery, aggravated assault, assault with a weapon, discharge a firearm with intent to endanger life, and unlawful confinement. On June 30, 2015, the trial judge imposed a global sentence of nine years and six months, less three years and four months credit for pre-sentence custody.

[2] The appellant appeals the convictions and the sentence.

Conviction Appeal

Facts

[3] In March 2013, three armed men entered an apartment to rob Richard Kruk of drugs and money. As Kruk tried to flee the apartment, one of the men shot him in the back with a shotgun. Kruk was seriously injured, hospitalized for a lengthy period, and experienced a great deal of pain from his wound.

[4] The assailants fled, first in a rental car driven by Mohamed Taha, then on foot after Taha's car collided with a TTC bus.

Central Issue: Identification

[5] The central issue at trial was identification. Taha said that the appellant was one of the assailants in his car. Christine Slanker testified that she saw the appellant flee from the car after the accident.

Evidence

[6] Three cell phones were seized from the Taha car. One of them had the number 647-852-5219. Sergeant Beauparlant testified that, based on a previous meeting, the phone belonged to the appellant.

[7] The police found a jacket in the immediate vicinity of Taha's car. Forensic testing established gunshot residue and the appellant's DNA on the jacket.

[8] In his decision, the trial judge stated that the evidence of Taha and Slanker as in-dock identification of the appellant had little weight. However, it was supported by the DNA evidence from the clothing found near the car and the evidence of the cellphone with the number associated with the appellant. Accordingly, the trial judge convicted the appellant of the various offences connected to the home invasion robbery and shooting.

Grounds of Appeal

[9] The appellant appeals the convictions on three grounds.

First Ground: In-Dock Identification by Sergeant Beauparlant

[10] First, the appellant contends that the trial judge erred by placing any weight on the in-dock identification by Sergeant Beauparlant.

[11] We do not accept this submission. The trial judge was, explicitly, alive to the weaknesses associated with Sergeant Beauparlant's previous identification of the appellant from looking at a photograph. However, having properly cautioned himself, he was entitled to find that the match between the phone number provided to Sergeant Beauparlant by the man he identified as the appellant and the number of one of the cell phones in Taha's car was one piece of circumstantial evidence inculpating the appellant.

Second Ground: Assessment of In-Dock Identifications

[12] Second, the appellant asserts that the trial judge erred in his assessment of the value of Slanker's (brief, night, outdoors) and Taha's (brief, first ever meeting) in-dock identifications of the appellant.

[13] We disagree. Again, the trial judge was explicitly aware of the weaknesses of this identification evidence. Indeed, he said that, standing alone, they "should be accorded little weight." However, again, he relied on the confirmatory evidence related to the jacket and cell phone to buttress the in-dock identifications. In our view, the trial judge did not err in doing so.

Third Ground: Unreasonable Verdict

[14] The third ground of appeal – unreasonable verdict – largely traverses the same terrain as the other two grounds of appeal. Given that we see no error in the trial judge's treatment of the identification evidence of Beauparlant, Slanker and Taha, it follows that the convictions cannot be unreasonable. In particular, the appellant's DNA and the gunshot residue on the jacket were compelling evidence against the appellant.

Sentence Appeal

[15] The appellant submits that the sentence was too harsh. At the time of sentencing, the appellant was 21 years old and had only a youth record with the equivalent of 18 months secure custody. In these circumstances, the trial judge needed to be mindful of imposing the shortest possible first penitentiary sentence for a youthful offender: see R. v. Borde, 63 O.R. (3d) 417.

[16] We do not accept this submission. The trial judge treated "the relative youth of Mr. Bullock" as a mitigating factor. He relied on this court's decision in R. v. Danvers, 199 C.C.C. (3d) 490, for the proposition that "exemplary sentences" should be imposed for crimes involving guns. Moreover, this was not the appellant's first substantial custodial sentence for a firearms related offence. The brutal shooting of Kruk and his serious injuries deserved a sharp rebuke and substantial sentence.

Disposition

[17] The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.