



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muir, 2013 ONCA 470

DATE: 20130709

DOCKET: C51598

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Muir

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Robin Flumerfelt, for the respondent

Heard: July 3, 2013

On appeal from the conviction entered by Justice Faye E. McWatt
    of the Superior Court of Justice, sitting with a jury, on December 7, 2009.

ENDORSEMENT

[1]

The appellant was convicted of two counts of robbery with a firearm and
    several related firearms offences after a two-week jury trial. He received a
    sentence of 8 years in prison, minus pre-sentence custody. He appeals his convictions.

[2]

On October 18, 2006, the appellant and four others robbed a drug dealer
    at gunpoint inside his home. A high-speed chase with police ensued, ending when
    the robbers getaway car crashed into police cruisers. The appellant fled the
    vehicle and the police pursued him on foot. The appellant was caught, subdued,
    and arrested, while the other perpetrators were arrested in the vehicle. The
    police found the three firearms used in the home invasion, along with the
    stolen money, drugs, and property, in the getaway car.

[3]

The first issue on appeal relates to the in-dock identification of the
    appellant by Mr. McLeod, the registered owner of two of the firearms that were
    found in the vehicle. Mr. McLeod testified that a young man from Toronto named
    Doug had visited the tenant who resided in his basement every two weeks
    during the summer months prior to the robbery. Doug, who matched the
    appellants general description, had socialized with Mr. McLeod on a few
    occasions and had expressed an interest in Mr. McLeods handguns. Mr. McLeod
    only discovered that his handguns were missing after the robbery.

[4]

Although Mr. McLeod was unable to select the appellant from a photo
    lineup some nine months later, his description of Doug was admitted at trial,
    along with an equivocal in-dock identification of the appellant.

[5]

The appellant argues that the trial judge erred in failing to conduct a
voir
    dire
to
determine whether
    the probative value of Mr. McLeods identification evidence outweighed the
    prejudicial effect of admitting the evidence. Had she done so, she would not
    have admitted it. Further, the appellant submits that the trial judge erred in
    failing to instruct the jury that the in-dock identification had no probative
    value.

[6]

The second issue on appeal relates to the testimony of the victims
    neighbour Mr. Pugh, who testified that he saw one of the perpetrators pointing
    a gun. That person was wearing a blue hooded jacket. The evidence at trial was
    that the only person involved in the home invasion who wore a blue hooded
    jacket was the appellant. The appellant argues that the trial judges charge to
    the jury did not adequately warn the jury concerning the frailties of this
    identification evidence and was deficient, in that it failed to link the
    general frailties of identification evidence with the specific circumstances of
    this case.

[7]

In our view, the appeal must be dismissed. In oral submissions, the
    appellant conceded that the trial judges decision to rule on the admissibility
    of Mr. McLeods evidence without having received
viva voce
evidence is
    moot on appeal. The critical question, therefore, is whether his evidence was admissible.

[8]

In-dock identifications are presumptively admissible, subject to the
    requirement of a proper limiting jury instruction. In virtually all cases,
    therefore, in-dock identification evidence is admitted, subject to such an
    instruction. The appellant argues that this is an exceptional case where the prejudicial
    effect of the in-dock identification evidence exceeds its probative value, and
    the evidence should have been excluded.

[9]

We agree with the Crown that the in-dock identification in this case was
    properly admitted, as it was relevant in several respects. Specifically, once
    Mr. McLeod had testified about his contact with Doug, his description of Doug,
    and Dougs interest in the handguns, the jury may well have drawn an adverse inference
    if Mr. McLeod had not been asked if Doug was in the courtroom. See
R. v.
    Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 49. Further, the in-dock
    identification provided context to the appellants argument that Mr. McLeods
    failure to select the appellant from a photo lineup conducted some time before trial
    proved the appellants innocence. See
R. v. Maragh
, 2007 ONCA 681, 229
    O.A.C. 232, at para. 10. The concern as to the prejudicial effect of admitting
    the evidence could be adequately addressed through a strong and unequivocal
    caution.

[10]

We
    are of the view that the trial judges instructions on the frailties of
    identification evidence were adequate. The caution given was indeed strong and
    unequivocal. After cross-examination, Mr. McLeod was no longer sure that the
    appellant was the Doug he had met several times over the summer. The trial
    judge noted this change in Mr. McLeods testimony and told the jury to either
    give it no weight or only the slightest value. This caution was coupled with
    specific reference to the other frailties in Mr. McLeods evidence, including
    his failure to identify the appellant in a photo lineup held much closer to the
    date of the offence. Nothing further was required in the circumstances.

[11]

We
    also note that this case is quite different from the classic case where the in-dock
    identification is central to the Crowns case and where, based on a fleeting
    observation, the witness confidently identifies a stranger for the first time
    in court. Here, the appellant was caught fleeing the scene and the in-dock
    identification was only one of several pieces of evidence linking the appellant
    to the guns found in the car. In addition, Mr. McLeod had had considerable
    contact with Doug over a summer and had given police a description of Doug that
    resembled the appellant.

[12]

With
    respect to the appellants second ground of appeal, we see no error in the way
    the trial judge dealt with the evidence of Mr. Pugh. Mr. Pugh observed part of
    the robbery and although he could describe the colour of the hooded jacket on
    the person brandishing a gun, he was unable to identify the appellant. Cautions
    about lighting conditions, vantage point, and the brevity of Mr. Pughs observations
    were all given by the trial judge. The appellants closing submissions
    highlighted the weaknesses in Mr. Pughs evidence and the trial judge twice
    referred to the appellants submission on this point. In our view, a more
    extensive caution was not necessary in the circumstances.

[13]

For
    these reasons, the appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


