R. v. Quercia, (1990) 41 O.A.C. 305 (CA)

• Judge: Galligan, Osborne and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 05, 1990
• Jurisdiction: Ontario
• Citations: (1990), 41 O.A.C. 305 (CA);1990 CanLII 2595 (ON CA);1990 CanLII 2595 (NS CA);75 OR (2d) 463;1 CR (4th) 385;60 CCC (3d) 380;[1990] OJ No 2063 (QL);41 OAC 305

R. v. Quercia (1990), 41 O.A.C. 305 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent/applicant/appellant in sentence appeal) v. Norman Scott Quercia (appellant/respondent in sentence appeal)

(No. 761/89)

Indexed As: R. v. Quercia

Ontario Court of Appeal

Galligan, Osborne and Doherty, JJ.A.

November 5, 1990.

Summary:

The accused was convicted of aggravated sexual assault by a judge and jury and sentenced to five years' imprisonment. He appealed his conviction, raising the issue of identification.

The Ontario Court of Appeal allowed the appeal, quashed the conviction and acquitted the accused.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The Ontario Court of Appeal held that in deciding whether a jury verdict is reasonable, the appeal court must give due deference to the advantageous position of the jury who actually saw and heard the witnesses - See paragraph 6.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was convicted of aggravated sexual assault by a jury, solely on the eye witness identification of the accused by the victim - The Ontario Court of Appeal held that the verdict was unreasonable because of marked discrepancies between the victim's description of the accused to police and the way the accused looked - Further, a photograph picked out of a police photo line-up by the victim suffered from the same difficulty - Therefore, the court quashed the conviction and acquitted the accused.

Criminal Law - Topic 5240

Evidence and witnesses - Identification - General - The Ontario Court of Appeal stated that the honesty of a witness cannot be equated to reliability where identification evidence is concerned - See paragraph 8.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eye witness identification - [See second Criminal Law - Topic 4865 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eye witness identification - The Ontario Court of Appeal agreed that an "alibi which is proved to be false may support eye witness evidence identifying the maker of the false alibi as the culprit" - See paragraph 26.

Criminal Law - Topic 5252

Evidence and witnesses - Identification - From photographs - Use of photographs by police - [See second Criminal Law - Topic 4865 ].

Cases Noticed:

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 27 C.C.C.(3d) 97, refd to. [para. 4].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258; 14 C.C.C.(2d) 385, refd to. [para. 6].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 6].

R. v. A.D. (1990), 37 O.A.C. 267 (C.A.), refd to. [para. 8].

R. v. Izzard (1990), 38 O.A.C. 6; 54 C.C.C.(3d) 252; 75 C.R.(3d) 342 (C.A.), refd to. [para. 8].

Chartier v. Attorney General of Québec, [1979] 2 S.C.R. 474; 27 N.R. 1; 48 C.C.C.(2d) 34, refd to. [para. 16].

R. v. Goldhar and Smokler, [1941] 2 D.L.R. 480; 76 C.C.C. 270 (Ont. C.A.), refd to. [para. 18].

R. v. Dunn (1990), 56 C.C.C.(3d) 538 (B.C.C.A.), refd to. [para. 26].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [paras. 6, 29].

Authors and Works Noticed:

Canada, Law Reform Commission Study Paper - Pretrial Eyewitness Identification Procedures (1983), pp. 7-15 [para. 5].

Counsel:

Michael G. Engel, for the appellant;

David B. Butt, for the respondent.

This appeal was heard on October 1 and 2, 1990, before Galligan, Osborne and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on November 5, 1990, including the following opinions:

Doherty, J.A. (Osborne, J.A., concurring) - See paragraphs 1 to 32;

Galligan, J.A. (concurring in separate reasons) - See paragraphs 33 to 38.