R. v. Massey |
2013 CarswellOnt 17415 |
Ontario Court of Appeal
Criminal law | Offences | Robbery | Evidence
Accused was convicted of robbing fast food restaurant — Security video captured robbery, but did not permit identification of robber — Accused visited J night of robbery and was arrested after J told police that accused was robber — At time of his arrest, accused was wearing carpenter's jeans similar to those worn by robber in video — Only issue at trial was identity — Both J and his mother incriminated accused — Trial judge found their testimony credible and reliable — Accused appealed conviction, alleging that trial judge engaged in circular reasoning in rejecting his defence that J was robber — Appeal allowed — Robber in video generally matched J's appearance, and there was other evidence connecting J to robbery — Carpenter's jeans apparent in security video were pivotal in trial judge's analysis rejecting defence contention J might have been robber — Trial judge's analysis of whether accused was person in video was circular, proceeding on basis that jeans accused was wearing on his arrest were jeans in video — While J could not have worn jeans seized from accused because they would not fit, there was no evidence that jeans in video were accused's — In finding that jeans were only major piece of clothing that was not in apartment that night, trial judge misapprehended evidence — There was no testimony as to whether J's roommate owned such pair of jeans and apartment was never searched — Mother's testimony that J did not own carpenter's jeans did not provide adequate basis for trial judge's conclusion that jeans used in robbery were not at apartment that night — Finding that Crown had proved beyond reasonable doubt that accused was robber was unsafe and could not stand — New trial ordered.