



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bullock, 2017 ONCA 398

DATE: 20170517

DOCKET: C61712

MacPherson, Blair and Epstein

BETWEEN

Her Majesty the Queen

Respondent

and

Russell Bullock

Appellant

Janani Shanmuganathan, for the appellant

Andrew Cappell, for the respondent

Heard: May 16, 2017

On appeal from the conviction entered on April 8, 2015 and
    the sentence imposed on June 30, 2015 by Justice Alfred J. OMarra of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

On April 8, 2015, OMarra J. of the Superior Court of Justice convicted
    the appellant, Russell Bullock, of several home invasion related charges
    involving a firearm, including armed robbery, aggravated assault, assault with
    a weapon, discharge a firearm with intent to endanger life, and unlawful
    confinement. On June 30, 2015, the trial judge imposed a global sentence of
    nine years and six months, less three years and four months credit for
    pre-sentence custody.

[2]

The appellant appeals the convictions and the sentence.

Conviction appeal

[3]

In March 2013, three armed men entered an apartment to rob Richard Kruk
    of drugs and money. As Kruk tried to flee the apartment, one of the men shot
    him in the back with a shotgun. Kruk was seriously injured, hospitalized for a
    lengthy period, and experienced a great deal of pain from his wound.

[4]

The assailants fled, first in a rental car driven by Mohamed Taha, then
    on foot after Tahas car collided with a TTC bus.

[5]

The central issue at trial was identification. Taha said that the
    appellant was one of the assailants in his car. Christine Slanker testified
    that she saw the appellant flee from the car after the accident.

[6]

Three cell phones were seized from the Taha car. One of them had the
    number 647-852-5219. Sergeant Beauparlant testified that, based on a previous meeting,
    the phone belonged to the appellant.

[7]

The police found a jacket in the immediate vicinity of Tahas car.
    Forensic testing established gunshot residue and the appellants DNA on the
    jacket.

[8]

In his decision, the trial judge stated that the evidence of Taha and
    Slanker as in-dock identification of the appellant had little weight. However,
    it was supported by the DNA evidence from the clothing found near the car and
    the evidence of the cellphone with the number associated with the appellant.
    Accordingly, the trial judge convicted the appellant of the various offences
    connected to the home invasion robbery and shooting.

[9]

The appellant appeals the convictions on three grounds.

[10]

First, the appellant contends that the trial judge erred by placing any
    weight on the in-dock identification by Sergeant Beauparlant.

[11]

We do not accept this submission. The trial judge was, explicitly, alive
    to the weaknesses associated with Sergeant Beauparlants previous identification
    of the appellant from looking at a photograph. However, having properly
    cautioned himself, he was entitled to find that the match between the phone
    number provided to Sergeant Beauparlant by the man he identified as the
    appellant and the number of one of the cell phones in Tahas car was one piece
    of circumstantial evidence inculpating the appellant.

[12]

Second, the appellant asserts that the trial judge erred in his
    assessment of the value of Slankers (brief, night, outdoors) and Tahas (brief,
    first ever meeting) in-dock identifications of the appellant.

[13]

We disagree. Again, the trial judge was explicitly aware of the
    weaknesses of this identification evidence. Indeed, he said that, standing
    alone, they should be accorded little weight. However, again, he relied on
    the confirmatory evidence related to the jacket and cell phone to buttress the
    in-dock identifications. In our view, the trial judge did not err in doing so.

[14]

The third ground of appeal  unreasonable verdict  largely traverses
    the same terrain as the other two grounds of appeal. Given that we see no error
    in the trial judges treatment of the identification evidence of Beauparlant,
    Slanker and Taha, it follows that the convictions cannot be unreasonable. In
    particular, the appellants DNA and the gunshot residue on the jacket were
    compelling evidence against the appellant.

Sentence appeal

[15]

The appellant submits that the sentence was too harsh. At the time of sentencing,
    the appellant was 21 years old and had only a youth record with the equivalent
    of 18 months secure custody. In these circumstances, the trial judge needed to
    be mindful of imposing the shortest possible first penitentiary sentence for a
    youthful offender: see
R. v. Borde
(2003), 63 O.R. (3d) 417 (C.A.).

[16]

We do not accept this submission. The trial judge treated the relative
    youth of Mr. Bullock as a mitigating factor. He relied on this courts
    decision in
R. v. Danvers
(2005), 199 C.C.C. (3d) 490, for the
    proposition that exemplary sentences should be imposed for crimes involving
    guns. Moreover, this was not the appellants first substantial custodial
    sentence for a firearms related offence. The brutal shooting of Kruk and his
    serious injuries deserved a sharp rebuke and substantial sentence.

Disposition

[17]

The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


