R. v. Brown (D.P.), (2009) 251 O.A.C. 264 (CA)

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., MacPherson and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2009), 251 O.A.C. 264 (CA),2009 ONCA 563
• Date: 08 July 2009

R. v. Brown (D.P.) (2009), 251 O.A.C. 264 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JL.060

Her Majesty the Queen (respondent) v. Dane Patrick Brown (appellant)

(C47545; 2009 ONCA 563)

Indexed As: R. v. Brown (D.P.)

Ontario Court of Appeal

O'Connor, A.C.J.O., MacPherson and Cronk, JJ.A.

July 10, 2009.

Summary:

The accused was convicted of attempted murder, pointing a firearm and breach of recognizance. He was sentenced to life imprisonment for attempted murder, four years concurrent, after credit for pre-sentence custody for pointing a firearm and time served plus one day for breach of recognizance. He appealed against his convictions and his sentence for attempted murder.

The Ontario Court of Appeal dismissed the conviction appeal, granted leave to appeal sentence and dismissed the sentence appeal.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused appealed his conviction for attempted murder - He argued, inter alia, that the victim's identification of him was unreliable because he committed perjury about the number of males present at the shooting site in order to protect their identities - According to the accused, this demonstrated a motive to falsely implicate the accused as the perpetrator - The Ontario Court of Appeal disagreed - First, the trial judge began his analysis of the evidence by adverting to the well-established dangers of identification evidence and to some of the leading authorities in Canada on that issue - He noted, correctly, that the weight to be assigned to identification evidence varied with the circumstances of the case - This was a recognition case, not simply a case of an identification of the shooter by the victim - They had known each other for several years - Second, it was the victim's unchallenged evidence that there was no history of antagonism or conflict between him and the accused before the shooting - The record suggested that the shooting was sudden, unprovoked and unpredictable - The accused pointed out that the trial judge did not accept the victim's assertion that only the accused and one companion were present when the victim was in the parking lot - The court disagreed that the finding that the victim had "lied" on this issue, demonstrated that he had a motive to falsely identify the accused - The trial judge held, as he was entitled to do, that the false statement was prompted by the victim's desire to protect others from any involvement with the police in a community where the evidence indicated that considerable hostility to the police existed - See paragraphs 12 to 20.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused appealed his conviction for attempted murder - Identification was the central issue at trial - The Crown's identification case rested on the evidence of the victim (McLeish) and an independent witness who observed the shooting (Hamilton) - The Ontario Court of Appeal rejected the accused's contention that the trial judge's assessment of Hamilton's evidence was flawed or that he erred by relying on Hamilton's identification evidence to support his conclusion that McLeish did not falsely identify the accused as his attacker - The trial judge recognized the frailties of in-dock identification evidence and, as a result, did not rely on that evidence by Hamilton to establish the accused's guilt - Instead, he relied on her evidence "as providing some corroboration of, and support for, Mr. McLeish's identification" of the accused and as undercutting the defence claim of fabricated identification by McLeish - Further, Hamilton recognized the accused from other occasions when he and several others had tried to "hit" on her - Moreover, before viewing a newspaper article that contained a picture of the accused, Hamilton had provided a description of the shooter that matched the accused and noted the shooter's resemblance to the rapper Beanie Segal - The latter reference point narrowed her more general description of the shooter to a resemblance to a specific type of look - Her evidence of the accused's resemblance to Beanie Segal was supported by her prior knowledge of the accused and was entitled to some weight - Based on Hamilton's evidence, it was unobjectionable for the trial judge to compare the picture of Beanie Segal to the accused's appearance and to find a "marked" resemblance between the two - The trial judge was not obliged to detail in his reasons those points of comparison that he noted between Segal's picture and the accused's appearance - See paragraph 21 to 27.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See second Criminal Law - Topic 4361].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See both Criminal Law - Topic 4361].

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audio tapes, etc. - General principles - Admissibility, etc. - [See second Criminal Law - Topic 4361].

Criminal Law - Topic 5576

Evidence and witnesses - Exhibits - Use of - [See second Criminal Law - Topic 4361].

Criminal Law - Topic 5836

Sentencing - Considerations - Deterrence - Prevalence of similar crime - The accused was sentenced to life imprisonment for attempted murder - The accused submitted that the trial judge erred (i) by failing to consider and give sufficient weight to mitigating factors; and (ii) by failing to impose a sentence that was proportionate and the least restrictive - The Ontario Court of Appeal rejected the submissions - The trial judge recognized that the accused was a first offender and the father of a young child - He took these factors into account in crafting his sentence, together with the accused's prospects for reoffending - There was no evidence that the accused had any real rehabilitative potential apart from that arising by necessary implication from his youth - Fresh evidence detailed the accused's academic progress and his course of conduct in custody - While some of the fresh evidence suggested a good prospect for his rehabilitation, other parts did not - Second, the sentence was not disproportionate to the circumstances of the offence, or harsh and excessive - Although the victim survived, he was confined to a wheelchair and paralyzed from the waist down - The accused shot the victim six times at point blank range (once in the chest, once in the groin area and four times in the back) - The attack was unprovoked - There was no evidence to explain the accused's actions - The sentence imposed was not outside the applicable range for similar offences and offenders - The attempted murder involved the use of a gun without warning in a public place where other citizens, including children, were present and at potential risk, in apparent retaliation for some minor slight - As the court had repeatedly said, the use of guns in public places in Toronto cried out for lengthy sentences - The trial judge took the serious concern of growing gun violence in Toronto into account - This was a proper and necessary consideration - See paragraphs 29 to 34.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5836].

Cases Noticed:

R. v. Miaponoose (A.) (1996), 93 O.A.C. 115; 110 C.C.C.(3d) 445 (C.A.), refd to. [para. 16].

R. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.), refd to. [para. 16].

R. v. Rybak (J.) (2008), 236 O.A.C. 166; 233 C.C.C.(3d) 58; 2008 ONCA 354, refd to. [para. 26].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1; 111 C.C.C.(3d) 403, refd to. [para. 26].

Counsel:

Joseph Wilkinson and Philip Norton, for the appellant;

Craig Harper, for the respondent.

This appeal was heard on July 8, 2009, by O'Connor, A.C.J.O., MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal, who delivered the following decision on July 10, 2009.