Court of Appeal for Ontario

Date: 2017-11-07 Docket: C61164

Judges: Simmons, van Rensburg and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Jerry Sodoma Appellant

Counsel

Margaret Bojanowska, for the appellant

Milica Potrebic, for the respondent

Hearing and Release

Heard and released orally: November 2, 2017

On appeal from: the conviction entered on October 1, 2015 by Justice A. Ann Nelson of the Ontario Court of Justice.

Reasons for Decision

[1] We reject the appellant's submissions that the trial judge erred in her treatment and assessment of eyewitness identification evidence. This was not a case based solely on eyewitness identification. Rather it was a case based on a combination of circumstantial evidence and eyewitness observations of experienced police officers conducting surveillance. The matrix of evidence that existed provided ample support for the trial judge's conclusion that the appellant was the driver of the white Mercedes involved in the attempted take-down on July 6, 2013 and the driver of the same white Mercedes involved in what appeared to the police to be drug transactions on other occasions.

[2] On our reading of her reasons, the trial judge did not ignore the dangers inherent in eyewitness identification. Rather, she concluded that given the matrix of the evidence before her, which she reviewed in detail, she could properly conclude the appellant was the driver of the white Mercedes at the relevant times.

[3] Given the finding that the appellant fled from police following the attempted take-down on July 6, 2013 (following what police believed was a drug transaction) and the surveillance of the appellant's home that had taken place, it was open to the trial judge to conclude that exigent circumstances existed which justified the initial police entry into the appellant's home to prevent destruction of evidence before receipt of the warrant. This disposes of the second ground of appeal and also the appellant's arguments concerning excising information from the information to obtain.

[4] In light of our conclusions, it is unnecessary that we deal with the appellant's arguments concerning s. 24(2) of the Charter.

[5] The appeal is dismissed.

"Janet Simmons J.A."

"K. van Rensburg J.A."

"I.V.B. Nordheimer J.A."