Court of Appeal for Ontario

Date: 2019-03-18 Docket: C65940

Justices: Watt, Hourigan and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Brandon Michael Baker Appellant

Counsel

Brandon Michael Baker, acting in person Tanit Gilliam, for the Attorney General of Canada Nader Hasan, duty counsel

Heard and released orally: March 12, 2019

On appeal from: the conviction entered on May 18, 2018 and the sentence imposed on September 5, 2018 by Justice Lise G. Favreau of the Superior Court of Justice.

Reasons for Decision

The Appeal from Conviction

[1] The appellant appeals his convictions of 3 counts each of trafficking in crack cocaine and possession of the proceeds of crime, and the sentence of 12-months in custody imposed upon him.

[2] During a three-week period, the appellant allegedly trafficked in small amounts of crack cocaine to an undercover officer who identified him as the seller in a photo lineup conducted after the first transaction.

[3] The sole issue at trial was the identity of the appellant as the seller.

[4] Duty counsel contends, on the appellant's behalf, that the photo lineup was flawed for a failure to include photos that replicated distinguishing features of the appellant, such as eye colour, facial hair and the texture of his head hair. In addition, the appellant says that the lineup was neither video nor audiotaped contrary to the recommendations of the Sophonow inquiry. In combination, he submits, these flaws are not overcome by other supportive circumstantial evidence.

[5] In our view, considering the reasons for judgment as a whole, the trial judge was cognizant of these deficiencies and took them into account in deciding that the Crown had proven beyond a reasonable doubt the appellant was the seller. It is worth notice that the undercover officer was involved in not one but three transactions over a three-week period, and did not waiver from her conclusion that the same person was involved as the seller in each of those transactions. There is also evidence that the appellant did frequent the building where two of the three transactions occurred.

[6] The appeal from conviction is dismissed.

The Appeal from Sentence

[7] We see no error in principle in the sentence imposed, which fell mid-range of the range of sentences duty counsel acknowledges to be appropriate.

[8] Leave to appeal sentence is granted, but the appeal from sentence is dismissed, other than to make one variation in the sentence. We set aside the victim surcharge ordered by the trial judge and direct that any money that may have been paid be remitted to the appellant.

"David Watt J.A."

"C.W. Hourigan J.A."

"Grant Huscroft J.A."