DATE: 20050308

DOCKET: C41857

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – V.J. KISHEN KUMAR (Appellant)

BEFORE:

GOUDGE, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

Michael Lomer

for the appellant

Robert Gattrell

for the respondent

HEARD & ENDORSED:

March 7, 2005

On appeal from the decision of Justice Paul A. Dilks, of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated April 28, 2004, upholding the conviction by Justice Kerr of the Ontario Court of Justice dated April 22, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The issue raised on this summary conviction appeal is whether the trial judge erred in accepting the identity of the appellant in the October incident with Mr. Dubraj without discussing in his reasons why he rejected the submission that the identification by Mr. Dubraj on December 28 was tainted by the risk of collusion.

[2] In our view, the trial judge made no error on this issue. He heard the argument made by defence counsel regarding the potential for the witness Dubraj to have jumped to the conclusion that the man pointed out by Mr. Barnes on December 28 was the same man who touched him in October. The trial judge rejected that submission and found that he was satisfied of the identification of the accused on the October incident.

[3] Furthermore, there was little, if any, basis in the evidence including the cross examination of Mr. Dubraj and the absence of defence evidence on the issue to give any evidentiary air of reality to the collusion argument.

[4] Although the trial judge’s reasons were very succinct, in the context of the entire transcript, they were sufficient in the circumstances.

[5] We would grant leave to appeal but dismiss the appeal.