Court of Appeal for Ontario
Date: 2017-06-05 Docket: C59863
Judges: Simmons, Pardu and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
Kenneth Muir Appellant
Counsel
R. Craig Bottomley and Mayleah Quenneville, for the appellant
Peter Fraser, for the respondent
Heard and Released
Heard and released orally: June 1, 2017
Appeal Information
On appeal from the conviction entered on November 20, 2014 and the sentence imposed on May 15, 2015 by Justice H.W. Allen of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] Following a jury trial, the appellant was found guilty of robbery with a firearm and related offences and sentenced to five years' imprisonment. The sole issue at trial was identification. The appellant appeals from conviction and requests leave to appeal sentence.
[2] Having regard to the strength of the circumstantial evidence, we are not satisfied that a more elaborate charge on eyewitness identification evidence was required in this case. Our conclusion in this respect is reinforced by the fact that the trial judge vetted the charge with counsel on more than one occasion before delivering it. Experienced defence counsel did not advance the complaints that are now raised on appeal.
[3] Concerning the photo line-up evidence, the witnesses did not purport, in their evidence, to be able to identify the fleeing passenger. The photo line-up evidence therefore had no probative value.
[4] With respect to the surveillance video, its value lay in the still-shot showing the clothing worn by one of the perpetrators. The jury instruction concerning the video was adequate in the circumstances.
[5] The conviction appeal is therefore dismissed.
[6] As for the sentence appeal, given the submissions made and the fact that the trial judge imposed the minimum sentence for these very serious offences, in the circumstances, we are not persuaded the trial judge disregarded the pre-sentence custody or house arrest bail.
[7] Leave to appeal sentence is granted but the sentence appeal is dismissed.
Janet Simmons J.A.
G. Pardu J.A.
M.L. Benotto J.A.