



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rae, 2013 ONCA 556

DATE: 20130911

DOCKET: C56392

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Adam Rae

Applicant/Appellant

Robert Sheppard, for the appellant

Katie Doherty, for the respondent

Heard and released orally: September 6, 2013

On appeal from the conviction entered on August 1, 2012
    and the sentence imposed on October 5, 2012 by Justice Alan W. Bryant of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Bryant J. of the Superior Court
    of Justice for robbery while armed with an offensive weapon and carrying a
    concealed weapon.

[2]

The appellant contends that the trial judge erred in his analysis of the
    reliability of the identification evidence relating to the appellant. 
    Specifically, the appellant submits that the trial judge did not take
    sufficient account of the fact that both identification witnesses, the
    appellants neighbour, Ms. Fitzsimmons, and the police officer involved in a
    previous robbery case, Constable Racher, were informed about the possibility
    that the appellant was the convenience store robber before they identified him
    as the person in the convenience store video.  In short, the appellant suggests
    that the Fitzsimmons and Racher identification evidence was tainted by
    pre-suggestion and, therefore, should have been discounted as the principal
    basis on which the trial judge convicted the appellant.

[3]

We do not accept this submission.  The trial judge was clearly aware of
    the pre-suggestion factor.  However, Ms. Fitzsimmons had lived across the
    street from the appellant for about two years and had regular personal contact
    with him.  Constable Racher had spent 15 to 20 minutes visiting the appellant
    in an interview room following a robbery of a gas station; this visit took
    place approximately two weeks before she identified the appellant as the person
    shown in the convenience store video.

[4]

In these circumstances, the trial judge did not err by labelling
    Fitzsimmons and Rachers evidence as recognition evidence.  Nor did he err
    by relying on it to establish the appellants guilt beyond a reasonable doubt
    in the robbery of the convenience store.

[5]

The appellant also submits that the trial judge, who saw the appellant
    in court throughout the trial and viewed the convenience store video, erred by
    not expressing his own opinion about the reliability of the identification
    evidence.

[6]

We disagree.  The leading case in this area,
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197, permits, but does not require, a trial judge to make
    observations along these lines.  In the present case, the trial judge was
    entitled to rely on the strong identification evidence of the two witnesses,
    without supplementing it with his own opinion based on his viewing of the video
    and comparison with the appellants appearance in the courtroom.

[7]

The appeal is dismissed.

John Laskin J.A.

J.C. MacPherson J.A.

David Watt J.A.


