



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muir, 2017 ONCA 461

DATE: 20170605

DOCKET: C59863

Simmons, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Muir

Appellant

R. Craig Bottomley and Mayleah Quenneville, for the
    appellant

Peter Fraser, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on November 20,
    2014 and the sentence imposed on May 15, 2015 by Justice H.W. Allen of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Following a jury trial, the appellant was found guilty of robbery with a
    firearm and related offences and sentenced to five years imprisonment. The
    sole issue at trial was identification. The appellant appeals from conviction
    and requests leave to appeal sentence.

[2]

Having regard to the strength of the circumstantial evidence, we are not
    satisfied that a more elaborate charge on eyewitness identification evidence
    was required in this case.  Our conclusion in this respect is reinforced by the
    fact that the trial judge vetted the charge with counsel on more than one
    occasion before delivering it. Experienced defence counsel did not advance the
    complaints that are now raised on appeal.

[3]

Concerning the photo line-up evidence, the witnesses did not purport, in
    their evidence, to be able to identify the fleeing passenger. The photo line-up
    evidence therefore had no probative value.

[4]

With respect to the surveillance video, its value lay in the still-shot
    showing the clothing worn by one of the perpetrators.  The jury instruction concerning
    the video was adequate in the circumstances.

[5]

The conviction appeal is therefore dismissed.

[6]

As for the sentence appeal, given the submissions made and the fact that
    the trial judge imposed the minimum sentence for these very serious offences,
    in the circumstances, we are not persuaded the trial judge disregarded the
    pre-sentence custody or house arrest bail.

[7]

Leave to appeal sentence is granted but the sentence appeal is
    dismissed.

Janet Simmons J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.


