R. v. Henderson (W.E.),

• Jurisdiction: Manitoba
• Judge: Monnin, Hamilton and Chartier, JJ.A.
• Neutral Citation: 2012 MBCA 93
• Citation: 2012 MBCA 93,(2012), 284 Man.R.(2d) 164 (CA),[2013] 2 WWR 457,[2012] CarswellMan 573,[2012] MJ No 344 (QL),284 Man R (2d) 164,284 ManR(2d) 164,(2012), 284 ManR(2d) 164 (CA),284 Man.R.(2d) 164,[2012] M.J. No 344 (QL)
• Date: 10 October 2012
• Court: Court of Appeal (Manitoba)

R. v. Henderson (W.E.) (2012), 284 Man.R.(2d) 164 (CA);

      555 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.038

Her Majesty The Queen (respondent) v. William Edward Henderson (accused/appellant)

(AR 09-30-07269; 2012 MBCA 93)

Indexed As: R. v. Henderson (W.E.)

Manitoba Court of Appeal

Monnin, Hamilton and Chartier, JJ.A.

October 10, 2012.

Summary:

Henderson was charged with first degree murder in the shooting death of McKay. Henderson and McKay were allegedly involved in an altercation at a bar, the previous evening. After the bar closed, McKay went to a house party. The Crown alleged that Henderson appeared at the party and shot McKay twice. The Crown's case rested almost entirely on the evidence of eyewitnesses who identified Henderson as the shooter. There were 13 rulings on substantive issues, including pre-trial and during the (jury) trial proper.

The Manitoba Court of Queen's Bench convicted Henderson of first degree murder. Henderson appealed, raising some 23 grounds of appeal, and applied to admit fresh evidence.

The Manitoba Court of Appeal denied the application to admit fresh evidence and dismissed the appeal.

Barristers and Solicitors - Topic 1603.2

Relationship with client - Conflict of interest or duties - Acting for Crown - [See all Barristers and Solicitors - Topic 1618 ].

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest or duties - Remedies (incl. procedure for) - In light of Crown counsel's past association with the accused and his mother, the accused brought a motion asking for, inter alia, an order requiring the Attorney General to assign the case to outside counsel - A voir dire was held to determine the conflict of interest issues - The accused argued that conduct of the voir dire should be assigned to outside counsel - The judge refused to grant an outside counsel order - The accused appealed the ruling - He took the position that the judge should have ordered outside counsel because a Crown attorney was to appear as a witness at the voir dire - He pointed to R. v. Kinal (J.) (2007) (Man. Q.B.) as authority - The Manitoba Court of Appeal stated that "In my view, and with respect, if Kinal ever stood for the proposition that a lawyer from Manitoba Justice can never represent the Crown each time a Crown attorney is required to testify on a defence motion, then it cannot be allowed to stand. Such situations can occur regularly ... Putting aside the impracticalities of imposing such an absolute rule on the Attorney General's department, the parallel reasoning used by the judge in Kinal to simply equate the Attorney General's department to that of a private law firm is unsound." - See paragraphs 89 to 94, 105.

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest or duties - Remedies (incl. procedure for) - A voir dire was held to determine the conflict of interest issues - The accused argued that conduct of the voir dire should be assigned to outside counsel - The judge refused to grant an outside counsel order - The accused appealed the ruling - The Manitoba Court of Appeal held that the judge correctly rejected the accused's request to order Manitoba Justice to retain outside counsel to argue the conflict of interest issues - "[W]hile the rule that a lawyer cannot be both counsel and witness in the same hearing is applicable to individual Crowns, there is no general rule that compels the Crown to retain outside counsel every time Crown counsel is required to give evidence on a defence motion. This general rule is, of course, not absolute. There may be circumstances which will require the appointment of outside counsel. However, all that is generally required in such situations is for another Crown counsel to take conduct of the hearing and lead that evidence. ...  And that is what happened in this case." - See paragraphs 95 and 96.

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest or duties - Remedies (incl. procedure for) - Late in the criminal trial, one of the two Crown attorneys assigned to prosecute the case (Dewar) became aware that, while in private practice, her law firm had acted for the accused on unrelated youth matters - The Crown did not oppose an order removing Dewar from the case, but opposed the accused's request for a mistrial - A voir dire was held - The accused appealed the judge's ruling, arguing that he erred by not declaring a mistrial - The Manitoba Court of Appeal was not convinced that any such error was committed - The judge correctly found that, while the public interest in completing the trial was significant, the prime concern was the need for public confidence in fairness of the trial - The evidence presented at the voir dire did not disclose any actual prejudice - In addition, there was no evidence that any confidential information had been used by Dewar or shared by her - That neither Dewar nor the accused remembered their past dealings was understandable as it was fleeting and limited to unrelated matters - This was not to say that the judge was wrong to have ordered Dewar's removal, as the accused had the right to Dewar's undivided loyalty - See paragraphs 97 to 100.

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest or duties - Remedies (incl. procedure for) - Late in the criminal trial, one of the two Crown attorneys assigned to prosecute the case (Dewar) became aware that, while in private practice, her law firm had acted for the accused on unrelated youth matters - The Crown did not oppose an order removing Dewar from the case - A voir dire was held - The judge held that Dewar's removal would address any fairness concerns, and found there was no need to remove the other Crown attorney (Bayly) or declare a mistrial - The accused appealed the judge's ruling, arguing that he erred in confining the conflict of interest to Dewar personally, as opposed to Manitoba Justice as a whole - He submitted that he did not receive a fair trial because of the conflict - The Manitoba Court of Appeal held that the judge was well justified to conclude that Bayly remained untainted by any conflict of interest - Dewar had neither used any confidential information arising out of her prior representation of the accused, nor shared any such information with Bayly - Moreover, trial fairness carried two perspectives: the accused's and the broader public interest - Since the trial was near its end, the judge had the added benefit of hindsight to assess whether the conflict of interest issue had an impact on the fairness of the trial; he correctly found that it had not - In the context of criminal prosecutions, the need to retain outside counsel was subject to unique considerations, as "it is the Attorney General who bears the responsibility to prosecute the offences for which the accused is charged." - See paragraphs 101 to 106.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused appealed his conviction for first degree murder - The judge had found that the police had breached the accused's s. 8 rights when their attendance at the home of the accused's mother turned into a warrantless search for evidence against the accused - As a result, the judge redacted parts of the Information to Obtain (ITO) - The judge upheld the validity of the search warrant later obtained that day, based on the redacted ITO - The accused argued that, even if his running shoes were collected under a valid warrant to search, they should nonetheless be excluded under s. 24(2) because of the earlier s. 8 breach - The Manitoba Court of Appeal rejected that argument - The seriousness of the police conduct was considerably mitigated by the fact that the police had attended the premises at the homeowner's invitation to address safety concerns and that they discovered the running shoes (in plain view) when they were discharging their duty of clearing the house of any threat - The intrusion into the accused's privacy interest was relatively minor and not accompanied by conduct that engaged the accused's human dignity - The existence of the running shoes was discovered while the police were lawfully addressing safety concerns and provided reliable forensic evidence (blood and DNA) on a very serious charge, factors which favoured their admission in furtherance of society's interest in adjudication on the merits - See paragraphs 79 to 83.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 1265.1

Offences against person and reputation - Murder - General principles - Jury charge - First degree murder - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 1270

Offences against person and reputation - Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The trial judge concluded that the warrantless visual search of the home of the accused's mother had breached the accused's s. 8 Charter rights because the police had failed to obtain the mother's consent to search the house - With respect to the search warrant later obtained that day, the judge excised certain information in the Information to Obtain, including paragraphs containing the information obtained as a result of the warrantless search - The judge held that the search warrant was valid, and refused to exclude the accused's running shoes as evidence, finding that it was plainly visible (in the accused's bedroom) that the shoes appeared to have blood on them - On the conviction appeal, the accused contended that the judge erred in finding that: (1) it was reasonable for the officer to have entered the bedroom; (2) it was plainly visible that the running shoes appeared to have blood on them; (3) after excising certain information, there was sufficient evidence to issue the warrant; and (4) the running shoes need not be excluded under s. 24(2) - The Manitoba Court of Appeal disagreed with the accused's contentions - See paragraphs 63 to 83.

Criminal Law - Topic 3048

Special powers - Search warrants - Validity of - Severability of partially defective warrant or information - [See Criminal Law - Topic 3046 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - The Crown said in its closing address that "defence was speculating." - The accused argued on appeal that the judge erred by failing to include an explanation with regard to the difference between inference and speculation in his final instructions - The judge explained in his opening instructions the different between direct evidence and circumstantial evidence, and that the latter called for the drawing of inferences - The only reference to speculation in the final charge was when the judge explained the term "reasonable doubt", saying that "[I]t is not an imaginary or frivolous doubt based on speculation or a guess." - The Manitoba Court of Appeal upheld the judge's ruling - The evidence was not entirely circumstantial - Two people testified that it was the accused who shot the victim, and a third placed him at the scene with a gun - While there was no direct evidence on planning and deliberation, the judge went through the circumstantial evidence on that issue, and reminded the jury if it had any reasonable doubt on the planning and deliberation, it had to "resolve that doubt in favour of the accused." - In his final instructions, the judge repeated the principles of the presumption of innocence, the burden of proof on the Crown and the concept of reasonable doubt - See paragraphs 117 to 123.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - [See Criminal Law - Topic 4440 ].

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - In this case, the judge granted the accused's motion to allow opinion evidence to be led from an expert in the field of eyewitness identifications - The testimony of the expert took one full day, at a cost of "about $10,000 and up" - The Manitoba Court of Appeal, in addressing the accused's argument that the judge erred by failing to give specific instructions on the frailties of eyewitness identification, stated that "[i]n situations where a jury hears eyewitness identification evidence, it is vital that juries be made aware of the frailties related to this type of evidence. This is generally done through strong jury instructions. ...  The testimony of the expert witness will not only bring additional costs ... it necessarily takes longer than a strong jury instruction and thereby extends the length of the trial. It also often burdens the jury with unnecessary surplus information." - See paragraphs 109 and 110.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The judge in this case granted the accused's request to allow opinion evidence to be led from an expert in the field of eyewitness identifications - On the accused's appeal, the issue was whether, in light of the expert's testimony, the judge was still required to give the usual instruction on eyewitness identification evidence - The Manitoba Court of Appeal, on a functional approach that took into account the nature of the evidence before the trial court, the live issues that were raised, the positions of the parties on those issues, and the addresses of counsel, held that the jury was fairly and properly informed over concerns surrounding eyewitness identification evidence and their duty to be vigilant when considering that evidence - See paragraphs 111 to 116.

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - The Crown alleged that the accused appeared at a house party and shot the victim twice - Its theory was that after an altercation at a nightclub, the accused obtained a gun, and attended a house party to seek the victim out and to kill him - The accused stood over the victim and shot him in the temple after the initial shot - The judge dismissed the accused's motion for a directed verdict on the charge of first degree murder, concluding that there was sufficient evidence to justify an inference of planning and deliberation before attending the party or after the first shot was fired - The Manitoba Court of Appeal, on the correctness standard, did not accept the accused's contention that the judge erred - In addressing the unique evidentiary features on a directed verdict motion, the court stated that "[t]he judge need only to ask whether, taking the evidence as a whole, there is any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, could justify a conviction. If this threshold is met, the judge must leave the decision to the jury." - In this case, the issues of whether the Crown's case would be believed or whether the Crown's suggested inferences would be drawn were, after proper jury instructions, appropriately left with the jury to decide - See paragraphs 124 to 134.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See third Barristers and Solicitors - Topic 1618 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused appealed his conviction for first degree murder - His arguments related to the judge's refusal to invalidate a search warrant - At the end of the voir dire, the judge gave relatively brief reasons, indicating that "full reasons will follow" - Fuller reasons were never given - The accused asserted that the reasons were not adequate to allow for appellate review and that, as a result, the judge erred by failing to provide sufficient reasons - The Manitoba Court of Appeal disagreed - "An unfulfilled promise to provide fuller reasons does not lead in and of itself to reversible error. ...  [I]n such situations, an appellate court will 'assess whatever reasons have been delivered' ... '[A]n appeal lies from the judgment, not the reasons for judgment' ..." - The reasons given in the case at bar covered three and one-half pages of transcript, and when read in their entire context, gave the "why" or the basis for the ruling, provided public accountability and permitted meaningful appellate review - See paragraphs 61 and 62.

Criminal Law - Topic 4851

Appeals - Indictable offences - Grounds of appeal - General - [See both Criminal Law - Topic 4906 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused appealed his conviction for first degree murder - The victim was shot twice in the head outside a house party - The accused contended that the verdict was unreasonable because the identification evidence (that the accused was the shooter) was insufficient, and that there was an "utter absence of evidence" of a planned and deliberate murder - The Manitoba Court of Appeal rejected that contention - The Crown's case was strong: it had three witnesses who identified the accused as being present at the scene of the murder - Two of those witnesses were familiar with the accused; their photo pack identification was simply additional confirmation of their prior dealings - The third Crown witness was close to the shooter when the second shot was fired and recognized the accused - The identification evidence stood or fell on the jury's assessment of the credibility of the accused, who denied being present at the murder scene, and the Crown's three main witnesses - Applying the test for unreasonable verdict, when the evidence was taken as a whole, a properly instructed jury, acting judicially, could reasonably have found that the shooter was the accused, and that the murder was planned and deliberate - See paragraphs 135 to 140.

Criminal Law - Topic 4905.2

Appeals - Indictable offences - Procedure - Criminal appeal rules - The accused's factum exceeded the allowable pages for written argument by appended submissions - The Manitoba Court of Appeal stated that "Need we remind that the Court of Appeal Rules clearly state at Rule 29 that the factum will consist of four parts, each setting out 'a concise overview', 'a concise summary of the facts', 'a concise statement identifying the issues in the appeal and the appellant's position on each issue', and 'a concise statement of the argument ... with particular reference to ... the tab number and page in the case book for the authorities relied on' ... . What counsel for the accused presented was anything but concise. Not only did it not conform to our rules, it was inappropriate and not particularly helpful." - See paragraph 48.

Criminal Law - Topic 4906

Appeals - Indictable offences - Procedure - Notice of appeal or application for leave to appeal - General - The Manitoba Court of Appeal stated that "the practical effect of raising numerous grounds of appeal will generally result in less expansive arguments (both oral and written) and will almost always deprive the court of the benefit of a more comprehensive argument on the significant issues. Since the Crown is required to abide by the same restrictions, the court will also almost always of necessity receive from it a less developed argument than would otherwise be the case had fewer grounds been argued by the accused. Courts expect counsel to be of assistance in the appellate process. They expect counsel not to waste the court's valuable resources by simply dumping the appeal on the court's lap. Counsel are expected to have sufficient confidence to prioritize their arguments, to separate the wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice." - See paragraphs 49 and 50.

Criminal Law - Topic 4906

Appeals - Indictable offences - Procedure - Notice of appeal or application for leave to appeal - General - The accused raised no less than 23 grounds of appeal - The accused's factum apportioned each ground equally - At the hearing, counsel for the accused was invited to argue only those grounds which, in his view, had the most merit - Counsel argued 13 grounds - The Manitoba Court of Appeal stated that "While there is no ceiling on the number of grounds an appellant may raise, appellate courts, when faced with a shotgun approach to appellate advocacy, must still focus on those issues which have real substance. In doing so, a court will ordinarily be assisted by an appellant's views as to the strength of any particular issue. This strength can sometimes be revealed in an appellant's factum by the extent of the written submission on any particular ground. Unfortunately that is not apparent here." - In the court's view, out of the accused's "avalanche of grounds", only five areas warranted consideration - See paragraphs 51 to 54.

Criminal Law - Topic 4916.9

Appeals - Indictable offences - Procedure - Length of factum - [See Criminal Law - Topic 4905.2 ].

Criminal Law - Topic 4971

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - Effect of - The accused appealed his conviction for first degree murder - The fresh evidence the accused sought to introduce was a sworn videotaped statement from a person claiming to have witnessed the murder (the declarant) - The crux of the declarant's statement was that he was there, 7.5 years earlier, on the night of the murder; that he witnessed the shooting; and that the shooter was not the accused - The fresh evidence, if admitted, would undermine the description of the shooter provided by the Crown witnesses who had identified the accused as the shooter - The Manitoba Court of Appeal did not admit the fresh evidence - The inconsistencies with the evidence given by other witnesses, including the accused himself, when coupled with the declarant's unsavory background, the timing of his involvement, and his failure to attend for cross-examination, all raised significant credibility concerns - In the end, even with the added benefit of the sworn videotaped statement, the court was not satisfied that the fresh evidence was sufficiently credible to meet the required threshold, namely, that it was reasonably capable of belief - It would not serve the interests of justice (which included bringing finality to the process) to permit the declarant to reopen the trial to the general detriment of the administration of justice - See paragraphs 16 to 46.

Criminal Law - Topic 5241

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

Cases Noticed:

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 26].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 27].

R. v. 1275729 Ontario Inc. et al. (2005), 205 O.A.C. 359 (C.A.), refd to. [para. 28].

R. v. W.R.B., [2010] Man.R.(2d) Uned. 69; 2010 MBCA 116 (C.A.), refd to. [para. 28].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 28].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1 (C.A.), refd to. [para. 28].

R. v. Riley (M.W.) (2011), 303 N.S.R.(2d) 321; 957 A.P.R. 321; 2011 NSCA 52, refd to. [para. 29].

R. v. Reeve (M.) (2008), 236 O.A.C. 92; 2008 ONCA 340, refd to. [para. 31].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 31].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 39].

R. v. Czibulka (L.) (2011), 275 O.A.C. 64; 2011 ONCA 82, refd to. [para. 61].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 61].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 61].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 62].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 67].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 67].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 68].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 70].

R. v. Shiers (J.G.) (2003), 219 N.S.R.(2d) 196; 692 A.P.R. 196; 2003 NSCA 138, refd to. [para. 70].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 70].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 2007 ABCA 380, affd. [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, refd to. [para. 72].

R. v. Creelman (P.K.) (2007), 254 N.S.R.(2d) 155; 810 A.P.R. 155; 2007 NSCA 51, refd to. [para. 72].

R. v. MacDonald (J.) (2012), 290 O.A.C. 21; 2012 ONCA 244, refd to. [para. 72].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 73].

R. v. Campbell (N.M.), [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 74].

R. v. Dionisi (A.P.) (2012), 519 A.R. 313; 539 W.A.C. 313; 2012 ABCA 20, refd to. [para. 75].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R. 203; 2011 NBCA 106, refd to. [para. 75].

R. v. Savoy (A.) (2012), 386 N.B.R.(2d) 330; 999 A.P.R. 330; 2012 NBCA 36, refd to. [para. 75].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 76].

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82; 524 W.A.C. 82; 2011 MBCA 83, refd to. [para. 78].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 80].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 80].

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14; 743 A.P.R. 14; 2005 NLCA 51, refd to. [para. 80].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 81].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 81].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 81].

R. v. T.W.B. (2012), 275 Man.R.(2d) 157; 538 W.A.C. 157; 2012 MBCA 7, refd to. [para. 81].

R. v. Kinal (J.) (2007), 211 Man.R.(2d) 147; 2007 MBQB 26, refd to. [para. 89].

R. v. W.R.D. (1994), 92 Man.R.(2d) 276; 61 W.A.C. 276, refd to. [para. 93].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 66 O.R.(3d) 1 (C.A.), leave to appeal denied [2003] S.C.C.A. No. 411, refd to. [para. 95].

R. v. Fullerton, [1997] O.J. No. 1484 (C.J.), refd to. [para. 95].

R. v. Oigg (K.D.) (2007), 212 Man.R.(2d) 306; 389 W.A.C. 306; 2007 MBCA 34, refd to. [para. 98].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 98].

R. v. Robillard (1986), 14 O.A.C. 314 (C.A.), refd to. [para. 98].

R. v. M.Q. (2012), 289 O.A.C. 316; 110 O.R.(3d) 276; 2012 ONCA 224, refd to. [para. 98].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 103].

R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. 104].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 108].

R. v. Woodard (J.) (2009), 240 Man.R.(2d) 24; 456 W.A.C. 24; 2009 MBCA 42, refd to. [para. 109].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 110].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 114].

R. v. Nodrick (S.D.) (2012), 280 Man.R.(2d) 223; 548 W.A.C. 223; 2012 MBCA 61, refd to. [para. 114].

R. v. Kociuk (R.J.) (2011), 270 Man.R.(2d) 170; 524 W.A.C. 170; 2011 MBCA 85, affd. (2012), 429 N.R. 327; 280 Man.R.(2d) 53; 548 W.A.C. 53; 2012 SCC 15, refd to. [para. 114].

R. v. Geary (R.) (2010), 251 Man.R.(2d) 258; 478 W.A.C. 258; 2010 MBCA 33, refd to. [para. 115].

R. v. Khan (M.A.) (1998), 129 Man.R.(2d) 32; 180 W.A.C. 32, refd to. [para. 117].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 124].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 124].

R. v. O'Kane (P.J.) (2012), 284 Man.R.(2d) 72; 555 W.A.C. 72; 2012 MBCA 82, refd to. [para. 124].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 126].

R. v. Sazant (M.), [2004] 3 S.C.R. 635; 348 N.R. 1; 210 O.A.C. 376; 2004 SCC 77, refd to. [para. 126].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 127].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 135].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 135].

Authors and Works Noticed:

Stuesser, Lee, Experts on Eyewitness Identification: I Just Don't See It, (2006) 31:3 Man. L.J. 543, p. 549 [para. 110].

Counsel:

M.D. Glazer, for the appellant;

C.A. Vanderhooft, A.Y. Kotler and E. Szach, for the respondent.

This conviction appeal was heard on October 24 and 25, 2011, before Monnin, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. In reasons written by Chartier, J.A., the Court delivered the following judgment, dated October 10, 2012.