DATE: 20021011 DOCKET: C30728

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and- S. B. (Appellant)

BEFORE: FINLAYSON, MOLDAVER, FELDMAN JJ.A

COUNSEL: John H. Hale, for the appellant

Shelley Hallett, for the respondent

HEARD: October 9, 2002

RELEASED ORALLY: October 9, 2002

On appeal from the conviction imposed by Justice D. Kent Kirkland of the Ontario Court of Justice dated October 2, 1998.

E N D O R S E M E N T

[1] [1] Counsel for the appellant, on reflection, concedes that his submissions on the adequacy of the identification evidence would not be sufficiently valid to merit the court ordering a new trial.

[2] [2] Accordingly, he has restricted his submissions to the failure of the trial judge to acknowledge the significance of the offer by the appellant to produce a sample of his DNA. The trial judge did not ignore the offer. It was within his discretion as the trier of fact to consider how much weight to accord this post-offence offer. He did so and accorded it no weight.

[3] [3] The appeal is dismissed.

Signed: “G. D. Finlayson J.A.”

“M. J. Moldaver J.A.”

“K. Feldman J.A.”