R v Moose, 2017 MBCA 112

Citation: R v Moose, 2017 MBCA 112 Date: 20171120 Docket: AR17-30-08735 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) W. G. Marks ) for the Appellant Respondent ) ) C. T. St. Croix- and - ) for the Respondent ) CLAYTON GRANT MOOSE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) November 20, 2017 MAINELLA JA (for the Court): [1] The accused appeals his convictions for various robbery related offences.

On the evening of November 11, 2012,two masked men entered a home in Nelson House and stole monies from the homeowner who operated a small business from hisresidence. It was alleged that the accused carried and fired a gun during the robbery. The issue on appeal is the reasonableness of theverdicts given the eyewitness identification evidence (section 686(1)(a)(

i) of the Criminal Code). [2] The reasons of the judge satisfy us that, given the Crown’s case turned on eyewitness testimony, he was aware of thefrailties of such evidence and reviewed its reliability with the required caution (see R v Klyne, 2007 MBCA 100 at paras 17-19; and R vHay, 2013 SCC 61 at para 41). [3] The key identification evidence was as follows. Three eyewitnesses previously knew the accused and identified himas the gunman. One of the eyewitnesses recognized him from his hair and eyes despite him wearing a hood and having the lower part ofhis face masked.

The other two eyewitnesses had the ability to observe his uncovered face momentarily later in the robbery. While briefin duration, each of the three observations of the gunman were made in close proximity and occurred under good lighting conditions;none of the eyewitnesses were impaired. Each of the three eyewitnesses provided police with some distinguishing features of thegunman, some of which were confirmed by the accused’s appearance and clothing at the time of his arrest about two hours after therobbery.

The judge found each of the three eyewitnesses to be credible. [4] There were, however, reliability concerns arising from inconsistencies (internal to the evidence of the eyewitnesses orwith each other) as well as the suggestion that their evidence was tainted by the possibility of innocent collusion as the threeeyewitnesses are related.

Also, forensic evidence from the crime scene was inconclusive or did not incriminate the accused. [5] Finally, the accused did not testify; his failure to testify is a factor that may be considered in assessing thereasonableness of the verdicts (see Klyne at para 30). [6] We are satisfied from the judge’s reasons, when read in light of the record, that he considered and weighed theimportance of the evidence that undermined the reliability of the eyewitnesses with appropriate care.

In our view, when the totality ofthe evidence as to identification is considered, the verdicts are ones that a properly instructed trier of fact, acting judicially, couldreasonably have rendered (see R v Yebes, (SCC), [1987] 2 SCR 168 at 179-80; and R v Biniaris, 2000 SCC 15 at para36). Accordingly, the appeal is dismissed.

JA JA JA