



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Longshaw, 2022 ONCA 88

DATE: 20220128

DOCKET: C67566

Fairburn A.C.J.O., Gillese and
Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Longshaw

Appellant

Jeff Carolin and Taufiq Hashmani, for
the appellant

Molly Flanagan, for the respondent

Heard: January 27, 2022 by
video conference

On appeal
from the convictions entered on April 18, 2018 by Justice Jane E. Kelly of the Superior
Court of Justice, and from the sentence imposed on April 4, 2019.

REASONS FOR
DECISION

[1]

The appellant was convicted of offences arising
from an incident at Cabana Pool Bar (Cabana) in Toronto on August 20, 2016. It
was conceded at trial that a male wielding a firearm threatened Cabana security
staff. The sole issue was identification  whether the appellant was that male.

[2]

Following a judge-alone trial, the appellant was
convicted of two counts of threatening to cause death and one count each of
possessing a dangerous weapon (a firearm), using an imitation firearm while
threatening death, obstructing a peace officer by giving an incorrect name, and
failing to comply with a probation order to not possess weapons. He was
sentenced to 60 days imprisonment in addition to four years pre-sentence
custody credit. He was designated a dangerous offender and placed on a
seven-year long-term supervision order.

[3]

The appellant raised many grounds of appeal
against conviction, effectively arguing that the verdicts were unreasonable. At
the oral hearing of the appeal, the court found it unnecessary to call on the
respondent Crown. We advised the parties that the appeal was dismissed, with reasons
to follow. These are the promised reasons.

BACKGROUND IN BRIEF

[4]

On August 20, 2016, after being ejected from Cabana,
a man began threatening Cabana security staff. He retreated to the parking lot
and returned with what appeared to be a black firearm. He continued to threaten
the security staff, now while pointing a firearm at them. When he left again, one
of the security staff, Mr. Osroff, followed him to the parking lot behind
Cabana and called 911. He stayed on the 911 call until the police arrived. During
that time, he saw the suspect near a vehicle that he later described as a
sedan Jeep.

[5]

When the police arrived, Mr. Osroff pointed them
to the area in the parking lot where he believed the suspect was. The police moved
to that area and saw a male emerge from the back-passenger side of a blue Jeep
and walk quickly away from it. The police arrested the male, who fit the
description of the suspect. That male was the appellant. The appellant falsely
identified himself as Corey Barriner on arrest.

[6]

The police located an imitation firearm (a black
handgun) on the floor of the Jeep in front of the rear passenger seat from
which the appellant had emerged.

THE TRIAL DECISION

[7]

The trial took
place over three days. The Crown called the three security staff from Cabana
who had witnessed the incident and five police officers who attended the scene
and were involved in arresting the appellant in the parking lot. The defence
called no evidence. Its primary position at trial was that the Crown had failed
to prove identity.

[8]

After a brief
summary of the facts, the trial judge turned to the issue of identity. She summarized
the descriptions of the man given by the three security staff witnesses and
acknowledged the differences in those descriptions, such as the mans footwear
and height. However, she concluded that the evidence was reliable. She said the
differences were to be expected because the situation on the night in question
was dynamic and fluid. While they were making their observations, the staff
were being threatened by a male holding what they believed was a firearm,
leading them to fear for their safety and that of others.

[9]

Further, the
trial judge found that the differences in descriptions were minor, in the
context of the entirety of the evidence. Moreover, the description of the
suspect reported on the 911 call was consistent with the appellants appearance
at the time of arrest: he was a Black male, in his 20s, with cornrows, and
wearing a white t-shirt and dark shorts.

[10]

The trial judge
also noted that the situation was different from a typical identification case
where witnesses have only a fleeting opportunity to observe the suspect. Here,
two of the staff observed the individual for minutes during the first set of
threats; three staff saw him during the second set of threats; and one of the
witnesses, Mr. Osroff, never lost sight of the suspect from the time he made
the second set of threats to his arrest. Despite some minor frailties in Mr.
Osroffs evidence, the trial judge accepted it. She gave thorough, compelling
reasons for rejecting defence counsels submissions that Mr. Osroffs evidence
was unreliable and undermined in cross-examination.

[11]

The trial judge
reminded herself of the frailties of eyewitness identification evidence before
concluding that she completely accept[ed] the evidence of the security staff
with respect to the identification of the appellant as the man who threatened
them on the night in question, noting there was circumstantial evidence that
supported the identification evidence.

[12]

The trial judge
was further satisfied that the black firearm described by the three security
staff and seized by the police from the Jeep was the firearm used by the
appellant when threatening the officers.

[13]

Finally, the
trial judge found that by giving a false name to the police, the appellant was
guilty of obstructing a peace officer, as there was no other inference to draw
from providing a false name on the evidence before her.

THE GROUNDS OF APPEAL

[14]

The appellant
submits that the verdicts are unreasonable. He says that the trial judge erred:

1.

by using Mr. Osroffs certainty that he never
lost sight of the suspect as a proxy for his reliability;

2.

by:

a.

misapprehending the additional evidence that
she used to find Mr. Osroff reliable; and

b.

failing to critically engage with the evidence
that pointed to his unreliability;

3.

in her treatment of the security staffs
descriptions of the male by:

a.

not assessing the exculpatory descriptive
evidence (i.e., the inconsistencies) against the reasonable doubt standard;

b.

relying only on the generic descriptive
evidence that was consistent with the appellants appearance;

c.

applying different standards of reliability to
the inculpatory and exculpatory descriptive evidence; and

d.

failing to consider the exculpatory generic
descriptors against the reasonable doubt standard;

4.

by relying on the in-dock identifications of
the appellant;

5.

by relying on generic handgun descriptions;

6.

by concluding that guilt was the only
reasonable inference that arose from the appellant providing a fake name; and

7.

in relation to the obstructing a peace officer
count only, by failing to provide reasons to support the conviction, entitling
him to a new trial.

[15]

The appellant asks
that if acquittals are entered or a new trial is ordered in respect of each
offence except the charge of obstructing a peace officer, the sentence for
obstructing a peace officer be varied to 30 days imprisonment.

ANALYSIS

[16]

The many
grounds of appeal which the appellant raises are essentially an attempt to relitigate
the issue of identification. Most of the grounds amount to disagreement with
the trial judges factual findings. We do not accept that the trial judge made
any of the alleged errors and see no basis to disturb the factual findings
below.

[17]

In cases involving
eyewitness identification evidence, the trial judge must consider the
eyewitness testimony in its entirety, mindful of its inherent frailties. These
frailties arise most acutely in cases where eyewitnesses have only a fleeting
opportunity to observe an unfamiliar person in a stressful circumstance:
R. v. Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 90, 95. In order to
determine whether the appellants guilt was proven beyond a reasonable doubt,
the trial judge was required to consider the eyewitness testimony in the
context of the evidence as a whole:
Pelletier
, at para. 95. She did so in this case.

[18]

The trial judge
considered all of the identification evidence and ultimately concluded that the
appellant was the person who threatened the security staff and that the gun
found in the vehicle was the gun used by the appellant to threaten the security
staff.

[19]

Of paramount
importance was the evidence of Mr. Osroff, who testified that he did not lose
sight of the suspect, from the time he made the second set of threats to his
arrest. After acknowledging the vigorous cross-examination and submissions of
defence counsel on the reliability of that evidence, the trial judge found that
his evidence with respect to the continuous observation was not undermined.
Thereafter, she gave compelling reasons for that finding.

[20]

The main thrust
of the appellants submissions was that the trial judges findings concerning
Mr. Osroffs evidence were flawed, thereby undermining the reasonableness of
her conclusion on the issue of identity. We do not accept this submission. As
already noted, the trial judges findings were compelling. We are not persuaded
that there is any basis to set them aside on appeal.

[21]

Counsel for the
appellant acknowledges that the appeal turns largely on his grounds of appeal
that relate to how the trial judge addressed Mr. Osroffs evidence.
Nonetheless, he also made submissions concerning the trial judges treatment of
the other identification witnesses. Again, we see no error in the trial judges
findings. She explicitly recognized the frailties associated with eyewitness
identification evidence and considered it with that caution in mind. She
addressed the inconsistencies in the witnesses descriptions and gave
compelling reasons for why the relatively minor differences did not cause her
to conclude that evidence was unreliable. She noted that, unlike a typical
identification case where there is only a fleeting opportunity to observe the
suspect, in this case, the security staff witnesses had a good opportunity to
observe the suspect over several minutes. The trial judge came to multiple
findings of fact, all of which were available to her on the evidence adduced at
trial. Those findings of fact reasonably support the convictions. We see no
error in the trial judges approach to the evidence or the law. It is not for
this court to retry the case.

[22]

The appellant relies
on his factum for his submission that the trial judge erred in finding him
guilty of obstructing a peace officer. We do not accept this submission. The trial
judge found that the appellant gave a false name to the police and concluded
that, on the evidence before her, there was no other inference to draw from
that. While the trial judges reasons are brief, they are adequate, as they
permit meaningful appellate review:
R. v.
R.E.M.
, 2008 SCC 51,
[2008] 3 S.C.R. 3, at paras. 30, 57.

[23]

The appellants
sentence appeal was contingent on success on his conviction appeal. Because we
dismiss the conviction appeal, his sentence appeal falls away.

DISPOSITION

[24]

For these
reasons, the conviction appeal is dismissed.

Fairburn
A.C.J.O.

E.E.
Gillese J.A.

Gary
Trotter J.A.


