HER MAJESTY THE QUEEN (Respondent) and G.C. (Appellant)
Ontario Court of Appeal
Catzman J.A., Juriansz J.A., and Rosenberg J.A.
Heard: September 30, 2005
Judgment: September 30, 2005
Docket: CA C41049
Counsel: Graham T. Clark for Appellant
Roger Shallow for Respondent
Accused allegedly assaulted five victims during confrontation in nightclub and left before being apprehended — Weeks later, accused was arrested after witness to assaults saw him at another nightclub and informed one of victims who was also at nightclub — Accused charged with three counts of assault causing bodily harm and two counts of assault and was convicted at trial — Trial judge found that identification evidence was reliable and that proper procedures were employed for photographic lineup — Accused appealed — Appeal allowed; new trial ordered — Fresh evidence was admissible because it was sufficiently credible and, if believed, was reasonably expected to have affected result — Verdict was not unreasonable, but there were frailties in identification procedure and in identification evidence of witnesses.
APPEAL from judgment reported at R. v. C. (2003), 2003 CarswellOnt 5871 (Ont. S.C.J.), convicting accused of assault and assault causing bodily harm.
1 This was not an unreasonable verdict. Several witnesses identified the appellant as the perpetrator and at least one, Travis Richards, claimed to recognize the appellant as the perpetrator.
2 We are, however, satisfied that the fresh evidence of Jennifer Houben should be admitted. There are some concerns with the proposed evidence but the evidence is sufficiently credible in the sense that it is reasonably capable of belief.
3 If believed, that evidence could reasonably be expected to have affected the result. While the verdict is not unreasonable, there were frailties with the identification procedure (e.g. there was no sequential photo line-up and the appellant’s photo appeared in the same spot in all the arrays). There were also some frailties in the identification evidence of the witnesses.
4 Accordingly, the fresh evidence of Jennifer Houben is admitted. The appeal is allowed, the convictions are set aside and a new trial ordered.
Appeal allowed; new trial ordered.