



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coady, 2015 ONCA 479

DATE: 20150626

DOCKET: C59399

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Coady

Appellant

Richard Fedorowicz, for the appellant

Jennifer Mannen, for the respondent

Heard: June 23, 2015

On
    appeal from the convictions entered on
March
21, 2014 by Justice C. Rolland Harris
    of the Ontario Court of Justice.

ENDORSEMENT

[1]

The trial judge convicted the appellant of breaking
    and entering with intent to commit an indictable offence, assault with a
    weapon, uttering a threat, and, two counts of failure to comply with probation.
    He appeals his convictions on three grounds, namely, that the trial judge: (i)
    misapprehended evidence; (ii) rendered an unreasonable verdict; and, (iii)
    erred in his approach to the identification evidence.

[2]

The complainant, a 15 year old young man was
    awakened in his home around 4 a.m. by the sound of his dog barking. He saw a
    light near the family car, went outside to investigate and saw a man. The man
    ran away and the complainant chased him. When the complainant caught up to the
    man at a unit (unit 35) in a nearby housing complex, the man picked up a steel
    pipe and hit the complainant in the chest. Shortly thereafter, the complainant
    saw a man he identified as the intruder enter the same housing unit, unit 35.
    He reported all of this to the police who knocked on the door of unit 35 but
    received no answer.

[3]

About four hours later, police called and spoke
    to the occupant of the unit  the appellant  to tell him to come outside and
    talk to them. Ten minutes later, the appellant came outside. His head was
    shaved, with a fair amount of blood flowing from it.

[4]

The real complaint on this appeal is that the
    appellant disagrees that the evidence of identification was sufficient to
    support the convictions. We disagree. This was not a case based exclusively on
    identification evidence.

[5]

There was a constellation of evidence that
    included the eyewitness identification of the complainant who pursued the
    appellant on foot and where the appellant numerous times looked back at his
    pursuer. The
trial judge found
    the complainants evidence to be both credible and reliable. None of it was
    misapprehended by the trial judge.

[6]

The trial judges reasons make it abundantly
    clear that he was well aware of the frailties of identification evidence.
    Accordingly, he did not consider the evidence of the eyewitness in isolation;
    rather, it was correctly considered by him together with other strong
    circumstantial evidence. This evidence included the pursuit of the intruder,
    and, a short time after the pursuit ended, a person who appeared to be the
    intruder running into unit 35 where the police, moments later, arrived and knocked
    on the door but did not receive an answer. The appellant, after speaking on the
    phone with police, then exited the house ten minutes later with his head
    freshly shaven and bleeding.

[7]

The trial judge found as a fact that the
    appellant had hurriedly shaved his head in the time between the police phone
    call and when he exited the premises. On all the evidence, the trial judge was
    entitled to find that the appellant had shaved his head in order to attempt to disguise
    his identity.

[8]

It is arguable that the trial judge may have placed
    some weight on the fact that the appellant was likely the person who robbed the
    mother in the past. If so, this could amount to impermissible propensity
    reasoning. However, the trial judge clearly noted that his remarks in this
    regard were not integral to this case. In any case, it is our view that the
    result would be the same without any consideration of these remarks.

[9]

Assessing the evidence all together as was
    required, it was more than capable of supporting the inferences and findings of
    fact the trial judge made. He did not misapprehend any evidence and in
    particular he properly assessed the identification evidence. The verdicts were
    supported by the evidence and were not unreasonable.

[10]

The appeal is dismissed.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

H.S.
    LaForme J.A.


