DATE: 20031010
DOCKET: C38805

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - GERALD ARMSTRONG (Appellant)

BEFORE:

WEILER, MacPHERSON and CRONK JJ.A.

COUNSEL:

Kelly Slate for the respondent

Timothy E. Breen for the appellant

HEARD & ENDORSED:

October 8, 2003

On appeal from the conviction entered by Justice Paul Hermiston of the Superior Court of Justice on June 5, 2002.

APPEAL BOOK ENDORSEMENT

[1] The appellant argues that, based on the expert evidence in this case, it was not open to the trial judge to conclude that the boot print found at the scene, which was the critical physical evidence relied upon by the Crown, was the same as the appellant's boot print. We disagree.

[2] The Crown called two expert witnesses at trial, concerning footwear analysis. Both acknowledged that some of the challenged characteristics of the boot print could have been caused by manufacturing defects rather than by the natural wear and tear on the appellant's boots. Both also testified, however, that they were satisfied that the characteristics in issue were not manufacturing defects and both explained the basis for their opinions in that regard. The trial judge was entitled to accept that evidence.

[3] Accordingly, the appeal is dismissed.