



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deakin, 2021 ONCA 823

DATE: 20211119

DOCKET: C67995

Fairburn ACJO, Rouleau &
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Deakin

Appellant

Carter Martell, for the appellant

Samuel Greene, for the respondent

Heard: October 28, 2021 by
    video conference

On appeal
    from the conviction entered on October 24, 2019, and the sentence imposed on December
    11, 2019, by Justice R.S. Gee of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant appeals
    his conviction for robbery and wearing a disguise with intent to commit an
    indictable offence as well as his four-year sentence.

[2]

The appellant
    entered a convenience store wearing a face-covering to conceal his identity. He
    was brandishing a knife and what appeared to be a firearm and demanded that the
    clerk open the till. He stole several hundred dollars and escaped with an
    accomplice.

[3]

The issue at
    trial was identity.

[4]

After the
    robbery, the police obtained surveillance video from the convenience store. The
    police then released pictures from the video showing the two perpetrators to
    the public.

[5]

The appellants
    sister, Mellissa Deakin, saw the photos and recognized the appellant as one of the
    perpetrators depicted. She then contacted the police.

[6]

The Crown called Ms.
    Deakin as a witness at trial. A
voir dire
was held to determine if, because of her
    prior acquaintance with the appellant, she was in a better position than the
    trier of fact to identity the perpetrator: see
R. v. Leaney
[1989] 2 S.C.R. 393 at pp. 412-13. At the conclusion of the
voir dire
,
    defence counsel conceded that Ms. Deakins opinion on identification was
    admissible subject to the trial judges determination of its ultimate reliability.
    As the trial judge noted, just because a witness is qualified to give the
    evidence does not necessarily mean that it ought to be accepted and relied on
    by the trier of fact.

[7]

In the course
    of her testimony, Ms. Deakin was shown five video clips drawn from surveillance
    video at the convenience store. They depicted the appellant walking in or in
    front of the store. She had not seen them before. In some videos, the appellant
    wore a face covering but, in two of the videos, the appellants face was
    uncovered although a baseball cap partially shielded the upper portion of his
    face. Ms. Deakin was certain that the person depicted in the video was her
    brother, the appellant. She noted the appellants distinctive walk which she
    described as a thug walk and recognized certain features of his face visible
    in parts of the videos.

[8]

The trial
    judge found Ms. Deacon to be a credible witness and her identification of the
    appellant to be reliable. He entered a conviction. He then imposed a sentence
    of three years for the robbery and one year for the wearing of a disguise to be
    served consecutively, resulting in a total sentence of four years.

[9]

The appellants
    principal ground of appeal is that the trial judge failed to appreciate the
    frailties in the identification evidence. He argues that, properly viewed, the
    identification evidence was so unreliable as to be incapable of grounding a
    conviction.

[10]

At the outset,
    the appellant explains that the photos the police released to the media from
    which Ms. Deakin identified her brother contain insufficient detail to allow
    for reliable identification. Ms. Deakin provided no explanation as to how she
    was able to recognize the appellant from these photos. In the appellants
    submission, the animus that Ms. Deakin felt toward her brother is likely what
    led her to attend at the police station and identify her brother as the person
    depicted in the photos. The two had had a falling out over the appellants
    discreditable lifestyle approximately one year before the robbery. The
    appellant argues that his sister was expecting him to get in trouble so, in
    effect, she placed him in the photo.

[11]

When Ms. Deakin
    attended at the police station, her belief that it was the appellant depicted
    in the photos was, in the appellants submission, reinforced by the polices
    failure to prepare a photo lineup. Rather, they showed Ms. Deakin a different
    photograph said to be of the appellant, one drawn from Facebook that she was
    familiar with, and had her confirm that the second photo was also of her
    brother. This is said to have further tainted her identification.

[12]

According to
    the appellant, Ms. Deakin would therefore have expected to see her brother when
    she was shown the videos at trial. In the appellants submission, this
    confirmation bias was not adequately considered by the trial judge.

[13]

The appellant goes
    on to argue that the videos are simply incapable of supporting the
    identification of the appellant. The alleged distinctive walk Ms. Deakin
    described as thug walk is, in his submission, generic in nature and provides little
    support for the identification. As for the photos in which the appellants face
    is partially revealed, Ms. Deakin was unable to adequately describe any distinctive
    facial features to justify the confidence in the identification she asserted.

[14]

Finally, the
    appellant notes that Ms. Deakin conceded that she was estranged from her
    brother. She had not seen him for about a year before the surveillance videos
    and two years by the time of trial. In the period since she had last seen him, she
    said that his appearance had changed somewhat.

[15]

Given these
    problems with the identification evidence, the appellant argues that, although
    the trial judge cautioned himself on the frailties of identification evidence
    and the danger of conflating credibility with reliability, he did not heed this
    caution. His reasons give no indication that he had in fact appropriately considered
    and weighed the problems.

[16]

We do not accept
    this submission. In his reasons for judgment, the trial judge adverted to the
    dangers of eyewitness identification. He acknowledged that, just because a
    witness is qualified to give recognition evidence, this does not absolve the
    trial judge of his responsibility to make his own assessment of the evidence
    and be satisfied beyond a reasonable doubt of its accuracy. He also noted that
    confidence does not equate with accuracy.

[17]

Mindful of
    these dangers, the trial judge then carefully analyzed Ms. Deakins evidence.
    He noted that Ms. Deakin acknowledged the change in the appellants appearance since
    she had last seen him. Aware that Ms. Deakin had had a falling out with her
    brother, the trial judge found that this affected neither her credibility nor
    the reliability of her evidence. He viewed Ms. Deakin as having testified in [a]
    careful, candid and honest manner. He accepted that the distinctive walk
    described by Ms. Deakin constituted a feature that his sister knowing [the
    appellant] as she does and for as long as [she] does, would be able to
    recognize. It was open to the trial judge to come to this conclusion.

[18]

As for the
    portions of the video depicting the appellants face, the trial judge focussed on
    two clips. With respect to the first, he found that given its quality and the
    amount of the face visible, especially in profile, Ms. Deakins identification
    from it is accurate and reliable. With respect to the second clip, he noted
    Ms. Deakins evidence to the effect that based on the shape and outline of the
    face, the nose and the lips, there is no doubt in her mind that the person was
    her brother. When describing what she recognized in the clip, the transcript
    reveals that Ms. Deakin got up to show on the video what she was describing. After
    recognizing that a witness confidence does not equate with accuracy, the
    trial judge found that this clip gives a very good view of the persons face
    and is clear and of high quality, such that again I am satisfied in the
    accuracy of Ms. Deakins identification.

[19]

As a result, we
    see no error in the trial judges approach.

[20]

In addition,
    despite the capable submissions made, we do not accept the suggestion that Ms.
    Deakins identification of the appellant was tainted by the manner in which the
    police carried out the investigation. Ms. Deakin independently identified the
    appellant from the photos released to the public and did so without any
    prompting.

[21]

We reject the
    suggestion that Ms. Deakin identified the appellant in the videos because she
    expected to see him in them. The record demonstrates otherwise. When shown the
    videos for the first time at trial, she testified that she was not able to identify
    the person in the first two clips. She only confirmed that the person depicted
    in the videos was her brother when shown clips of the perpetrator walking and
    clips that revealed portions of his face. Despite their falling out, Ms. Deakin
    was not looking to inculpate her brother. As she explained, she did not want to
    believe that it was her brother. When she first saw the picture, her heart
    kind of dropped. I felt like crap.

[22]

The appellant
    conceded at trial that Ms. Deakins opinion on identity was admissible. The
    weight to be given to that evidence was a matter for the trial judge. We see no
    error in his acceptance as to the accuracy of Ms. Deakins identification of
    her brother as the perpetrator in the surveillance videos.

[23]

Second, the
    appellant argues that the verdict is unreasonable. As we have explained, we see
    no error in the trial judges conclusion that the videos were sufficiently
    clear so as to allow Ms. Deakin to identify the appellant as the perpetrator.
    As the trial judge noted, the videos are of high quality and the amount of face
    visible in those videos is sufficient to allow the identification, particularly
    when combined with what the trial judge perceived to be the appellants
    distinctive walk. We reject this ground of appeal.

[24]

The appellant
    also tenders and seeks to admit fresh evidence. The fresh evidence relates to
    the appellants trial on charges for having made threats against Ms. Deakin.
    That trial was held approximately a year following the decision in the present
    case. The appellant was acquitted of those charges and he argues that Ms.
    Deakins testimony in that case was rejected by the trial judge. In addition,
    her testimony is in some measure inconsistent with testimony she gave in this
    case. In the appellants submission, the evidence is important for a full and
    proper appreciation on appeal of the reliability of Ms. Deakins evidence.

[25]

We do not admit
    the fresh evidence. In our view, it is simply not cogent. Ms. Deakins
    testimony in the later trial does not say anything about her credibility and
    reliability when she testified in the present matter. At best, it would show inconsistent
    testimony suggesting that her memory of events shifted in the time between the
    two trials.

[26]

Finally, the
    appellant appeals his four-year sentence on the basis that the trial judge did
    not explain why he made the one-year sentence for wearing a disguise
    consecutive to the three-year sentence for robbery.

[27]

We see no error
    in the trial judges sentence. This was a planned and deliberate robbery and
    involved a knife and what appeared to be a firearm. The appellant had a lengthy
    record and the sentence imposed fell well within the range. In fact, at the
    sentencing hearing, defence counsel submitted that an appropriate sentence was
    three to four years, probably, in fairness, probably close to the four, if not
    the four. Although the trial judge should perhaps have explained why he chose
    to make the two sentences consecutive, it is clear, in our view, that he considered
    a four-year sentence to be appropriate in the circumstances. In our view, the
    sentence is fit.

[28]

For these
    reasons the appeal is dismissed.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.A.


