





CITATION:
R. v. Glave, 2011
          ONCA 111



DATE:  20110209



DOCKET: C47616



COURT OF APPEAL FOR ONTARIO



Doherty, Laskin and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Karl Glave



Appellant



Christopher R. Murphy, for the appellant



Lisa Joyal, for the respondent



Heard and released orally:
January 28, 2011



On appeal from the convictions entered by Justice F. Marrocco
          of the Superior Court of Justice dated February 1, 2006 and the sentence
          imposed on February 14, 2006.



ENDORSEMENT



[1]

The appellant was charged with various offences arising
    out of four robberies.  The trial judge
    eventually convicted the appellant of two of the robberies and acquitted the
    appellant on two of the robberies.  The
    appeal relates to the convictions arising out of one of the robberies.

[2]

Identification was the main issue on all of the robbery
    charges.  It is evident from the trial
    judges reasons and the different verdicts he arrived at on the different
    counts that he was fully aware of the frailties of identification evidence and exercised
    the requisite caution in considering that evidence.

[3]

We see no error in the trial judges review of the
    evidence relating to the robbery put in issue on the appeal or his analysis of
    that evidence.  The real issue on this appeal,
    and the issue stressed by counsel for the appellant, is the reasonableness of
    the conviction on the robbery charge challenged on this appeal.

[4]

We are satisfied that the verdict was not
    unreasonable.  The victim of the robbery
    had a very good opportunity to observe his assailant, twice prior to the
    robbery and again during the actual robbery.  The victims description of the assailant, while somewhat generic, was
    consistent with the appellants appearance in several respects.

[5]

The victim picked the appellants photograph out of a
    photo array shown to him some six or seven weeks after the robbery.  He did so without hesitation.  The manner in which the photo array was
    conducted was the subject of several submissions on appeal.  We agree with counsel that the photo array
    was not conducted in a manner that accorded with all of the various guidelines
    that have been set down in the case law.  The photo array was not perfect by any means.  However, having regard to the totality of the
    circumstances surrounding the victims identification of the appellants
    photograph, we are satisfied that a trier of fact could, acting reasonably,
    accord significant weight to the victims identification of the appellants
    photograph.

[6]

Counsel for the appellant, in the course of challenging
    the reliability of the identification in the photo array, stressed that the
    photograph of the appellant identified by the victim was taken five years earlier
    in 1999.  A more recent photograph was
    not available at the time of the photo array.  Counsel points to the photograph of the appellant taken in 2004 shortly
    after the robbery and available after the photo array was administered and
    argues that the 2004 picture makes it clear that at the time of the robbery in
    2004, the appellant did not look like the photograph picked out by the victim
    in the photo array.  Counsel submits that
    the selection of the 1999 photograph does not provide reliable evidence that
    the appellant was the person who robbed the victim in 2004.

[7]

The two photographs demonstrate that the appellants
    facial features had changed somewhat between 1999 and 2004.  The appellant had obviously put on weight and
    his face was fuller in 2004 than it was in 1999.  The trial judge also, of course, had the
    benefit of actually seeing the appellant in the courtroom.

[8]

In our view, the difference in the appearance of the
    appellant in the two photographs was not such as to compel the conclusion that
    it would be unreasonable to rely on the witness identification of the
    appellant from the 1999 photograph as evidence that the appellant was the
    person who robbed him in 2004.

[9]

The police officer who was familiar with the appellant
    indicated that while the two photographs certainly showed that the appellants
    features had changed somewhat, it was obvious to him that the photographs were
    of the same person.  We think it was open
    to the victim to reach the same conclusion.

[10]

In addition to the identification evidence already
    summarized, there was evidence from the cell phone records placing the appellant
    in the vicinity of the robberies at the relevant time.

[11]

The appellant did not testify.  We are entitled to consider his failure to
    testify in assessing the reasonableness of the verdict.

[12]

As indicated at the outset, we are satisfied that the
    verdict was reasonable.  The appeal is
    dismissed.

Doherty J.A.

J.I. Laskin J.A.

E.E. Gillese J.A.


