R. v. Leaney

1Twelve to 14 hours after the robbery, boxes taken by the robbers during the robbery were found in the laundry room next to Rawlinson's apartment and Rawlinson admitted putting them there or having them put there.

2The police recovered from Rawlinson's anal cavity a bag containing 4 of the 12 kinds of drugs stolen during the robbery.

3The witness Soroka, based on what Rawlinson told him, went and recovered a sawed-off rifle and turned it over to the police. The rifle was similar to the weapon described by witnesses as being carried by the smaller person in the robbery.

4The witnesses to the robbery described the smaller robber as being thin and short and carrying a sawed-off shotgun. One witness thought the smaller robber had a blonde mustache. The evidence is that Rawlinson was clean shaven but the description otherwise fits the general physical description of Rawlinson.

5The day before the robbery the accused Leaney, who is thin and tall (6 foot 2 inches to 6 foot 4 inches), was seen visiting the apartment residence of Rawlinson. The witnesses to the robbery described the smaller robber's companion as being thin and tall (6 foot 2 inches to 6 foot 4 inches). Additionally, the accused Rawlinson declined to testify at the trial despite the incriminating circumstances heretofore listed. With respect, my reading of the evidence requires a small qualification to the evidence referred to by the Court of Appeal. Indeed, as regards the drugs found in a bag in Mr. Rawlinson's rectum, there were found, along with four or five drugs of the same kind taken from the drugstore, other drugs which were identified as not coming from the robbery. I agree with Harradence J.A. that the evidence adduced against Rawlinson does not meet the test of s. 613(1)(b)(iii). It is evidence upon which a verdict of guilt could rest comfortably and stand well beyond the reach of a court of appeal's determination that it was unreasonable and could not be supported by the evidence. But with respect for the views of the majority, as has often been stated, much more is required under s. 613(1)(b)(iii). I would therefore allow Rawlinson's appeal as regards the hold-up and firearms charge and order a new trial. There remains the break and enter charge against Leaney. Leaney and the Break and Enter The evidence is an identification by the judge upon viewing a video of the burglary, coupled with the identification by a police sergeant who also viewed the video. The admissibility of the latter identification is contested and I will be addressing that issue shortly. In addition to the identification, there is evidence of Leaney's association with Rawlinson, who is definitely linked to the burglary. At trial, the judge admitted as evidence the testimony of five police officers who testified as to Leaney's identity as being the taller person on the videotape. It is common ground that this opinion evidence was inadmissible as regards four of the five police officers. As for the remaining officer, one Sergeant Cessford, who had known the appellant Leaney for 15 years, it is common ground that his opinion evidence could be received. However, the appellant Leaney, at trial and in this Court, but not in the Court of Appeal, takes the position that this evidence could not be received without the holding of a voir dire as to Sergeant Cessford's particular qualifications to give opinion evidence. Harradence J.A. proprio motu raised the matter and excluded the evidence. The position taken by the majority in the Court of Appeal is best enunciated by quoting integrally what they said at pp. 380-81: On his appeal of the conviction for the break, enter and theft, Leaney is faced with the finding of the trial judge that he was the taller person shown on the videotape. This is a finding of fact which the trial judge was entitled to make and it is one which is entirely consistent with the evidence tendered at trial, some of which is: 1. Rawlinson has admitted that he is the smaller thief shown in the videotape and the evening before the break and enter Rawlinson met with the accused Leaney at the Rawlinson apartment. 2. A baseball cap similar to that worn by the taller thief in the break and enter was found several hours after the break and enter in the car parked outside the Rawlinson residence and which has been associated with Rawlinson's apartment. 3. A liquid of the same sort as the cough syrup taken in the break and enter was found outside that automobile and empty containers of the same were found outside of the Rawlinson apartment. 4. A baseball bat similar to the baseball bat seen carried by the taller thief in the break and enter was seized at Rawlinson's apartment. 5. Clothing similar to some of the clothing worn by the thieves in the break and entry was found at Rawlinson's apartment.

6Various police officers viewed the videotape, one of whom was Sergeant Cessford. Cessford has known the accused Leaney for 15 or 16 years and was able to identify Leaney as the taller thief in the videotape by reference to Leaney's jaw, slouch, back and movements generally.