



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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.A., 2016 ONCA 974

DATE: 20161222

DOCKET: C60465

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.A.

Appellant

David Anber, for the appellant

Michael A. Townsend, for the Crown

Heard: December 16, 2016

On appeal from the conviction and sentence entered on April
    21, 2015 by Justice C.A. Kehoe of the Ontario Court of Justice (Youth Court).

ENDORSEMENT

[1]

The appellant
was convicted of one count of
    attempted robbery. He received a suspended sentence and was made the subject of
    an 18 month probation order.

[2]

He appeals his conviction, arguing that the
    verdict was unreasonable, the reasons for judgment were insufficient, and the
    trial judge erred in failing to identify an incident of past recollection
    recorded and thereby admitted inadmissible evidence. On the hearing of the
    appeal, the appellant abandoned his third ground of appeal. The appellant also
    abandoned his sentence appeal.

[3]

For the reasons that follow, the appeal is
    dismissed.

Facts

[4]

In March 2013, the complainant, Jing Liu, viewed
    an ad on the Kijiji classifieds website advertising a MacBook laptop computer
    for sale for $1,600. Mr. Liu corresponded with the seller by email. After an
    exchange of emails, it was agreed that the seller would deliver the computer to
    Mr. Lius address on March 29, 2013 at 6 p.m.

[5]

Mr. Liu testified that on that day he went down
    to the lobby of his building to meet the seller. When he got to the lobby he noticed
    two young males and enquired of them whether they were waiting for someone, and
    they said they were not. Mr. Liu returned to his apartment and received a call
    indicating that the seller was in the lobby. He returned to the lobby and the
    young men asked him if he was looking for the MacBook and he replied that he
    was. According to Mr. Liu, they said Here its in the bag, or Here we have
    it already, its in the bag, I show you. One of the two men then grabbed Mr.
    Liu from the back, while the other man searched through Mr. Lius pockets and
    person. Mr. Liu was eventually able to break free from the person holding him.
    The two men fled. Mr. Liu had $1,600 in his wallet, which was not taken.

[6]

Cst. Allan Galipeau and Mr. Liu reviewed the surveillance video
    from Mr. Lius building shortly after the offence. Mr. Liu pointed out to the
    officer the two individuals who had attempted to rob him.

[7]

Detective Michael Donald testified that he
    contacted the Kijiji office and received confirmation that the email address associated
    with the ad was the same as the one Mr. Liu corresponded with to set up the
    sale. That address originated from a Rogers IP address. Rogers confirmed that
    the account for this IP address is registered to the appellants mother.

[8]

Detective Donald determined that the ad was placed on March 27,
    2013 at 5:00 a.m. This was during a time when the appellants family was the
    lease-holder of the residence listed on the Rogers account.

[9]

Detective Donald attended at the residence on June 29, 2013. He
    brought with him photographs of the suspects derived from the video. The
    appellants brother answered the door. Detective Donald immediately recognized
    him as one of the two suspects on the video. Shortly thereafter, the appellant
    appeared at the door. Detective Donald also recognized him as one of the two
    suspects on the video.

[10]

The appellant was eventually charged and convicted of attempted
    robbery.

Analysis

(i)

Unreasonable Verdict

[11]

The appellant submits that no reasonable person
    and no properly instructed trier of fact could have found that the Crown had
    proven beyond a reasonable doubt the identification of the appellant as one of
    the two persons who attempted to rob Mr. Liu.

[12]

We do not agree with this submission. There was
    ample evidence to support the trial judges finding. This included the fact
    that the online ad was from an IP address registered to the appellants mother
    at a residence in which the appellant resided, Detective Donalds unchallenged
    evidence of his immediate recognition of the appellant when he attended at the
    appellants residence, and the trial judges comparison of the appellant in
    court with the individual on the videotape.

[13]

The appellant argues that the videotape was not
    of sufficient clarity to permit his identification. The trial judge
    acknowledged in her reasons that the video was grainy, but concluded that it
    was sufficiently clear for her to identify the appellant. That was a finding
    that was open to her to make. In the circumstances, it is not possible for this
    court to say that the finding was unreasonable.

[14]

In our view, the verdict was not unreasonable or
    otherwise tainted by legal error.

(ii)

Insufficiency of Reasons

[15]

According to the appellant, the trial judges
    reasons were inadequate because they did not address the central issue of how
    the trial judge was satisfied that the videos or photos assisted in the
    identification evidence.

[16]

We disagree.  The trial judge reviewed in detail
    the basis upon which she found that the Crown had proven the identification of
    the appellant beyond a reasonable doubt. Specifically, she referred to the
    evidence tying the email address used in the ad to the appellants residence,
    the evidence of Detective Donald regarding his identification of the appellant
    and his brother at their residence, and finally her identification of the
    appellant in the video. The trial judge was not required to detail the specific
    physical features she relied upon in coming to the conclusion that the
    appellant was the person in the video.

Disposition

[17]

The appeal is dismissed. The sentence appeal is
    dismissed as abandoned.

K. Feldman J.A.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


