2019 QCCA 1723, 2019 QCCA 1723

Larose c. R. 2019 QCCA 1723 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006597-171 ( 460-01-032142-170 ) MINUTES OF THE HEARING DATE: September 24, 2019 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A. APPELLANT COUNSEL Michael Larose Mtre Marie-Hélène Giroux ( Marie-Hélène Giroux avocate Inc. ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Frédérique Le ColletTer ( Director of Criminal and Penal Prosecutions ) On appeal from a judgment rendered on December 15, 2017 by the Honourable Mr.

Justice Serge Champoux of the Court of Québec , District of Bedford . NATURE OF THE APPEAL: Guilty verdict – Robbery and assault. Clerk at the hearing : Samia Kamal Courtroom: Antonio-Lamer

HEARING 9:31 Commencement of the hearing. Identification of counsel. 9:32 Introductory comments by the Court. Mtre Giroux gives an outline of argument to the Court. 9:33 Submissions by Mtre Giroux. 9:47 Recess of the hearing. 9:55 Resumption of the hearing. The Court advises Mtre Le Colletter that it will not be necessary to hear her submissions. BY THE COURT : Judgment will be rendered in the course of the day and will be inserted in the minutes of the hearing – see page 3. 9:56 Conclusion of the hearing.

Samia Kamal, Clerk at the hearing JUDGMENT [ 1 ] This is an appeal of the judgment rendered on December 15, 2017 by the Court of Québec, District of Bedford (the Honourable Mr. Justice Serge Champoux), finding the Appellant guilty of robbery (section 344(1)(

b) Cr.C. ) and assault with a weapon (section 267(

a) Cr.C. ). [ 2 ] The Appellant, armed with a machete and a knife, demanded money from the cashier of an SAQ branch (a Quebec liquor store). The intended robbery was thwarted by a cash drawer which would not open and a customer who intervened. After slashing the customer’s clothing with the knife, the culprit fled taking the bottle of wine purchased by the former. [ 3 ] The Appellant raises four grounds of appeal which can be regrouped as alleging the judge’s error with regard to each of the following:

i) Assessment of the identification evidence of the Appellant as the perpetrator; ii) Granting a prosecutorial request for continuance; iii) Allowing the re-examination by the prosecution of the customer/witness; I.

IDENTIFICATION [ 4 ] The judge remarked that certain eyewitnesses had “reservations as to the definitive nature of the identification.” He acknowledged the caution necessary in assessing eyewitness identification and remarked, albeit as an unnecessary additional element that he recognized the Appellant on the store security video despite that the images were of poor quality. [ 5 ] Eyewitness evidence is one means of tying an accused to the crime and identifying the Appellant as the perpetrator.

In this case, there is an overwhelming number of elements of circumstantial evidence, each of which ties the Appellant to the commission of the robbery and confirms the eyewitness and video identification:

i) He was seen in the vicinity of the SAQ branch shortly before the robbery entering a black Honda Civic (evidently by mistake) since it was identical to the getaway car subsequently used in the commission of the crime; ii) A black Honda Civic was identified as the getaway car and was stopped by the police shortly after the robbery in proximity to the place of commission of the crime; iii) When the Appellant was arrested, the car contained a machete and fishing knife corresponding to the weapons used in the

robbery; iv) When arrested, the Appellant was not wearing anything on his torso under his winter coat, despite the cold temperatures of the month of March. The robber was seen to have wrapped a t-shirt around his head and face in an evident attempt to mask his identity;

v) The person arrested wore the same shoes as did the robber; vi) A bottle of wine corresponding to the one stolen was also in the getaway car; vii) The driver of the getaway car in no way resembled the physical description of the culprit. [ 6 ] The accused is entitled to the benefit of reasonable doubt on the whole of the evidence. In this case, the evidence pointing to the Appellant as the perpetrator of the robbery and the assault including the witness identification, the video and all the circumstantial indicia taken together, leave no reasonable doubt that the Appellant was the perpetrator of the crime.

Accordingly, this ground of appeal must fail. II. POSTPONEMENT [ 7 ] The trial proceeded as scheduled on September 26 and 27, 2017, when fourteen prosecution witnesses were heard. Due to “administrative delays”, the prosecution subpoenas were only served at the end of July, such that two witnesses were unavailable due to prior commitments. The judge continued the trial to October 26 so that the two witnesses could then be heard. [ 8 ] Appellant contends that the prosecution was negligent so that the postponement should have been refused on application of one of the principles set forth in R. v.

Darville . [1] [ 9 ] The judge considered all the circumstances of the delay including the fact that the trial was scheduled within six months of the arrest and the postponement added only one month to the equation. [ 10 ] Given the prosecutor’s explanation and the fact that notwithstanding administrative delay, subpoenas were still served two months prior to trial allowing 14 out of 16 witnesses to be heard on the scheduled dates.

In such circumstances, it is difficult to agree with the Appellant that the prosecutor was negligent nor to accede to the invitation to intervene into the judge’s exercise of his discretion to grant a postponement. [2] III. RE-EXAMINATION [ 11 ] The judge permitted the re-examination of the customer with a view to identifying the bottle of wine that he purchased and which was stolen. The purpose was to prove the brand of the wine in question. The question did not arise from the cross-examination.

Rather, the witness could not remember the brand when asked in chief but remembered it was in his declaration to the police. The prosecuting attorney evidently forgot to refresh the witness’ memory with his declaration. [ 12 ] Again, such decisions fall within the judge’s discretionary power and for which judges enjoy a large degree of latitude in respect of which a commensurate degree of deference is due by this Court. [3] [ 13 ] This request was granted early on in the trial before the prosecution’s evidence was declared closed.

It is not unknown that such requests are granted to allow a party to remedy an oversight in presenting evidence. [4] Additional cross-examination was permitted for the defence. No prejudice has been caused to the Appellant nor has the trial been rendered unfair. Accordingly, this ground of appeal must also fail. FOR ALL OF THE FOREGOING REASONS, THE COURT: [ 14 ] DISMISSES the appeal. MARIE-FRANCE BICH, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A.