



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Babinski, 2013 ONCA 490

DATE: 20130719

DOCKET: C52756

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Babinski

Appellant

Graham T. Clark for the appellant

Andreea Baiasu for the respondent

Heard and released orally: July 15, 2013

On appeal from the conviction entered on November 17,
    2008 and the sentence imposed on June 10, 2010 by Justice Paul Rivard of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

After a trial before Justice Rivard and a jury, the appellant Darryl
    Babinski was convicted of robbery, attempt to obstruct justice, breaking and
    enter, uttering a threat and mischief to property. He was sentenced to nine
    years imprisonment less four years credit for pre-trial custody and was
    designated a long-term offender. He appeals both his conviction and sentence.
    On the sentence appeal he seeks leave to introduce fresh evidence

A.      THE CONVICTION APPEAL

[2]

The appellant makes two submissions: 1) the trial judge erred in his
    instructions to the jury on the in-dock identification of the appellant by the
    three neighbours; 2) the trial judge erred in failing to disqualify a juror who
    acknowledged being acquainted with one of the police officers who testified.

[3]

We did not call on the Crown on the second ground. The trial judge did
    not err in exercising his discretion not to disqualify the juror. We then turn
    to the trial judges instructions on the eye witness identification.

[4]

The appellants defence at trial was that he was not the perpetrator.
    Thus, identity was an issue for the jury. The appellant has two branches to his
    argument. First, he submits that the trial judge ought to have instructed the
    jury that the absence of a photographic lineup was unfair, or at least the
    trial judge ought to have instructed the jury that the in-dock identification
    was of no weight. Second, he submits that the trial judge ought to have
    instructed the jury that the in-dock identification could not be used to
    confirm Ms. Geggies identification evidence.

[5]

As is invariably the case, context is important. In this case, the trial
    judges instructions must be looked at in the light of three contextual
    factors:


i.

the appellant was not a stranger to the complainant. Ms. Geggie knew the
    appellant and identified him as the intruder from the very beginning;


ii.

her eye witness identification was confirmed by the evidence of Mr. Guy,
    who also knew the appellant and was party to the phone calls that gave rise to
    the obstruct justice conviction; and


iii.

Ms. Geggie was not a classic
Vetrovec
witness. She was 18, had
    no criminal record and was the victim.

[6]

Having regard to these contextual factors, we are satisfied that the
    trial judges instructions on the in-dock identification were adequate. On the
    first branch of the appellants argument, we note that some of the trial
    judges language was taken directly from the Supreme Court of Canadas decision
    in
Hibbert
. Further, the trial judge expressly told the jury about the
    dangers of relying on in-dock identification. In the context of this case,
    these instructions were adequate.

[7]

On the second branch of the appellants argument, we are satisfied that
    the trial judges instructions to consider whether there was any evidence to
    confirm Ms. Geggies eye witness identification did not prejudice the
    appellant. The further instructions sought by the appellant would have
    highlighted the several parts of the evidence that confirmed Ms. Geggies
    testimony.

[8]

Accordingly, the conviction appeal is dismissed.

B.      THE SENTENCE APPEAL

[9]

The sentence was fit when it was imposed. And, we do not think that the
    fresh evidence alters the fitness of the sentence. If anything, the fresh
    evidence confirms that the appellant remains a high risk to reoffend, and thus
    confirms the wisdom of a long term supervision order. Although the evidence
    shows that the appellant does not have access to one of the aboriginal healing
    centres, there is no evidence that other centres are unavailable to him. Rather,
    the appellant appears to have taken little or no interest in developing a
    release plan.

[10]

Accordingly,
    although leave to appeal sentence is granted, the sentence appeal is dismissed.

John Laskin J.A.

E.E. Gillese J.A.

G.R. Strathy J.A.


