



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McDonald, 2012
    ONCA 40

DATE: 20120123

DOCKET: C54335

Goudge, Epstein JJ.A., and Newbould J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Keaton McDonald

Appellant

Keaton McDonald, appearing in person

Louis P. Strezos, acting as duty counsel

Catherine Mullaly, for the respondent

Heard: January 16, 2012

On appeal from the conviction entered on August 19, 2011
    by Justice Russell J. Otter of the Ontario Court of Justice.

ENDORSEMENT

[1]

At the appellants request, duty counsel argued his appeal from
    conviction.  Mr. Strezos central argument concerned the identification
    evidence that was the basis for the appellants conviction.

[2]

The case turned entirely on the identification of the appellant
    by the victim, to whom he was a stranger.  The victim, a white male, was robbed
    by two black men, one of whom brandished a firearm.  The encounter was over in
    a matter of a few minutes.  Subsequently, the victim picked the appellant out
    of a photo line-up.

[3]

The trial judge instructed himself about the great caution with
    which visual identification generally must be viewed, especially with
    strangers.  However, he did not caution himself expressly about the danger
    presented by three specific circumstances pointed out by Mr. Strezos: that the
    identification was interracial; that the encounter was admittedly one of real
    stress for the victim; and that during the encounter the victim was facing what
    appeared to be a firearm.  Nor did the trial judge explain in his reasons why,
    despite these difficulties, he accepted the identification made by the victim. 
    Mr. Strezos says that this leaves the reasons for conviction fatally flawed.

[4]

Despite his able argument, we would not interfere with the
    conviction.

[5]

The trial judge was clearly aware that this was an identification
    that was interracial, and arose from a stressful confrontation where a gun was being
    pointed at the victim.  The risks presented by the interracial identification,
    the stress and the weapon would have been apparent to him.  He expressly
    cautioned himself on the generic risks of identification evidence.

[6]

As all trial judges are, this experienced trial judge is taken to
    know the law.  He was not required to expressly avert to the risks arising from
    the specific circumstances.  While he did not expressly offer reasons for
    rejecting their impact, he gave clear positive reasons for accepting the
    identification evidence: the victim had a clear and close-up look at the
    assailant; this persisted over the entire confrontation; and he was looking at
    the assailant the whole time.  The victim then took great care before
    identifying the appellant in the photo line-up.  In our view, on the current
    state of the law he was required to do no more.

[7]

The appeal must be dismissed.

S.T. Goudge J.A.

G.J. Epstein
    J.A.

Newbould J. (
ad hoc
)


