Court of Appeal for Ontario

Citation: R. v. Kreslin, 2007 ONCA 692

Date: 2007-10-10

Docket: C45606

Before: Moldaver, Feldman and Armstrong JJ.A.

Between:

Her Majesty the Queen, Respondent

and

Steven Kreslin, Appellant

Counsel: Leonard Miller for the appellant Paul Murray for the respondent

Heard and endorsed: October 9, 2007

On appeal from conviction entered by Justice Sandra Chapnik of the Superior Court of Justice, sitting with a jury, dated May 24, 2005.

APPEAL BOOK ENDORSEMENT

[1] On appeal, the appellant limited his submission to one ground, namely, that the verdict was unreasonable having regard to the frailties in the eyewitness identification evidence. For purposes of this argument, the appellant concedes that his evidence should not be considered.

[2] The eyewitness identification came from Officer Van Hetveld. He claimed that he saw the appellant on two occasions, within minutes of his arrest, and that he had a good view of the appellant on both occasions. He further observed the appellant within a minute or so of his arrest and he was certain that he was the person he had seen, on two occasions, minutes earlier. While it is true that the officer described the appellant’s coat as dark grey, instead of dark blue and referred to his hair colour as black, instead of brown, these differences were brought to the jury’s attention and in our view, they are of little consequence. As for the white hat that the appellant may have been wearing at the time of his arrest and which Officer Van Hetveld did not see, that too was left to the jury to consider. Importantly, the difference does not relate to an immutable characteristic and the appellant could easily have put the white hat on after being seen by Officer Van Hetveld and prior to his arrest.

[3] In our view, to the extent that Officer Van Hetveld’s evidence may have suffered from some frailties, it did not stand alone. Once the jury rejected the appellant’s explanation for being in the yard where the trucks and trailers were located, his presence there, at 10:22 p.m. on a Saturday night, in an industrial area where no other persons were around, provided strong circumstantial evidence supportive of Officer Van Hetveld’s identification.

[4] In the end, we are satisfied that the verdict was eminently reasonable. In so concluding, we note that the trial judge fully canvassed the issues of concern and her instructions on the dangers of eyewitness evidence, both generally and specifically, were thorough. Her charge was fair and balanced and we see no basis for interfering with the verdicts.

[5] Accordingly, the appeal from conviction is dismissed and the appeal from sentence is dismissed as abandoned.