



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE
    ACT

AND IS
    SUBJECT TO:

110. (1)
Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111. (1)
Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138. (1)
Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(
a
)       is guilty of an indictable offence and
    liable to imprisonment for a term not exceeding two years; or

(
b
)       is guilty of an offence punishable on
    summary conviction.





CITATION:
R. v. J.S., 2011
          ONCA
304



DATE: 20110419



DOCKET: C52577



COURT OF APPEAL FOR ONTARIO



Laskin, Sharpe and Cronk JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



J.S.



Appellant



Dale E. Ives, for the appellant



Christopher Webb, for the respondent



Heard: April 8, 2011



On appeal from the findings of guilt
          entered on June 2, 2010 and the dispositions imposed on June 30, 2010 by
          Justice Gregory A. Pockele of the Ontario Court of Justice.



By the Court:



[1]

This appeal was argued before us on Friday, April
    8.  At the conclusion of oral argument we
    gave our decision with reasons to follow.  We allowed the appeal, set aside
the
appellants convictions and ordered a new trial.  These are the brief reasons for our
    decision.

A.

Background

[2]

On
    a December evening in 2009, four masked men carrying knives broke into a townhouse
    where the complainant lived, and robbed him and his roommate.  The appellant was charged with the robbery
    and three related offences.  The Crown
    alleged that he was the third of the four men who had entered the townhouse.

[3]

The
    sole issue at trial was identification.  The third male, like all of the intruders, wore a black ski mask.  Only his eyes and mouth were visible.  The entire incident lasted about 5 to 10
    minutes.  The only evidence connecting
    the appellant to the robbery was the complainants eye witness
    identification.  The appellant did not
    testify.

[4]

The
    complainants identification evidence evolved over time.  About an hour after the robbery he gave a
    statement to the police in which he said that, though he did not get a good
    look at the third male, he kind of recognized his eyes as those of the
    appellant.  He said that the appellant
    had been to his townhouse a few times and he had seen him around the townhouse
    complex.

[5]

But
    other than the eyes, the complainant gave no basis for identifying the
    appellant as the third male.  Moreover,
    at trial the complainant acknowledged that when he gave the statement to the
    police he wasnt even 50 per cent sure that the appellant was one of the
    robbers.

[6]

A
    day and a half after the robbery, the complainant picked the appellant out of a
    photographic lineup.  By then, the
    complainant was 80 to 90 per cent sure that the appellant was the third
    male.  He based his identification on the
    persons eyes, stance, height and wide build.

[7]

By
    the time the complainant testified at trial he was confident and 100 per
    cent sure that the appellant was the third male who robbed him.  He said that he recognized the third male as
    the appellant from his eyes, the way he carried himself, his height, his medium
    build, the contours of his face, and the overall shape of his face and
    shoulders.

[8]

The
    trial judge accepted the complainants testimony and convicted the appellant on
    all charges.  On sentence, the trial
    judge rejected a joint submission for six months deferred custody.  Instead, the trial judge sentenced the
    appellant to eight months secure custody, four months supervision, and nine
    months probation, in addition to the 105 days of pre-sentence custody the
    appellant had already served.  By the
    time the appellant was released on bail pending his appeal, he had served six
    of his eight months secure custody disposition.

B.

Analysis

[9]

The
    trial judge gave lengthy oral reasons for convicting the appellant.  He appropriately cautioned himself about the
    concerns surrounding the reliability of eye witness identification.  Nonetheless, he concluded that the
    complainant was an exceptional witness who took a limited opportunity for
    observation in a limited field of view and focused upon several distinctive
    features to correctly identify the appellant as one of the robbers.

[10]

Before
    us, one of the appellants main submissions was that the trial judge failed to
    address the evolving details and level of confidence in the complainants
    identification evidence.  What underlies
    this submission is the concern that the complainant was not identifying the
    person he saw
commit
the robbery, but rather the
    person he knew from seeing him in his townhouse and in the area.

[11]

We
    agree with the appellants submission.  Right after the robbery, the complainant was less than 50 per cent
    certain the appellant was the third masked male, and could identify him only
    from his eyes.  By the time of the trial,
    the complainants confidence level had increased to absolute certainty and he
    had added numerous generic features to bolster his identification.  These evolving differences in the
    complainants evidence were crucial to evaluating the reliability of his
    evidence.  Because the trial judge failed
    to address them, the convictions cannot stand.

[12]

Although
    the Crowns case was thin at best, we cannot go as far as to say the verdict
    was unreasonable.  However, the trial
    judges failure to deal with material evidence affecting the reliability of the
    convictions entitles the appellant to a new trial.  We assume that in deciding whether to retry
    the appellant, the Crown will take into account the portion of the sentence the
    appellant has already served.

[13]

The
    appeal is allowed, the convictions are set aside and a new trial is ordered.

RELEASED:  Apr. 19,
    2011


JL                                                                                                 John
    Laskin J.A.

Robert
    J. Sharpe J.A.

E.A.
    Cronk J.A.


