



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baker, 2019 ONCA 214

DATE: 20190318

DOCKET: C65940

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Michael Baker

Appellant

Brandon Michael Baker, acting in person

Tanit Gilliam, for the Attorney General of Canada

Nader Hasan, duty counsel

Heard and released orally: March 12, 2019

On appeal from the conviction entered on May 18, 2018 and
    the sentence imposed on September 5, 2018 by Justice Lise G. Favreau of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions of 3 counts each of trafficking in
    crack cocaine and possession of the proceeds of crime, and the sentence of 12-months
    in custody imposed upon him.

[2]

During a three-week period, the appellant allegedly trafficked in small
    amounts of crack cocaine to an undercover officer who identified him as the
    seller in a photo lineup conducted after the first transaction.

The Appeal from Conviction

[3]

The sole issue at trial was the identity of the appellant as the seller.

[4]

Duty counsel contends, on the appellants behalf, that the photo lineup
    was flawed for a failure to include photos that replicated distinguishing
    features of the appellant, such as eye colour, facial hair and the texture of
    his head hair. In addition, the appellant says that the lineup was neither
    video nor audiotaped contrary to the recommendations of the
Sophonow
inquiry. In combination, he submits, these flaws are not overcome by other
    supportive circumstantial evidence.

[5]

In our view, considering the reasons for judgment as a whole, the trial
    judge was cognizant of these deficiencies and took them into account in
    deciding that the Crown had proven beyond a reasonable doubt the appellant was
    the seller. It is worth notice that the undercover officer was involved in not
    one but three transactions over a three-week period, and did not waiver from
    her conclusion that the same person was involved as the seller in each of those
    transactions. There is also evidence that the appellant did frequent the
    building where two of the three transactions occurred.

[6]

The appeal from conviction is dismissed.

The Appeal from Sentence

[7]

We see no error in principle in the sentence imposed, which fell
    mid-range of the range of sentences duty counsel acknowledges to be
    appropriate.

[8]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed, other than to make one variation in the sentence. We set aside the
    victim surcharge ordered by the trial judge and direct that any money that may
    have been paid be remitted to the appellant.

David Watt J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


