Court File and Parties

CITATION: R. v. Radisic, 2008 ONCA 822

DATE: 20081204

DOCKET: C44271

COURT OF APPEAL FOR ONTARIO

Goudge, MacFarland and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Anton Marko Radisic

Appellant

Counsel: Margaret Bojanowska for the appellant Dan Guttman for the respondent

Heard and released orally: November 25, 2008

On appeal from the conviction entered by Justice Michael J. Epstein of the Ontario Court of Justice dated June 22, 2005.

ENDORSEMENT

[1] The appellant raises four issues.

[2] First, he argues that the trial judge erred in admitting the videotaped statements of Ms. Egerton, particularly in failing to consider her third out-of-court statement in doing so. While there is no doubt that his decision preceded the Supreme Court of Canada’s reasons in Khelawon, in our view his decision does not constitute reversible error. There was ample evidence to sustain the finding that, on their own, these two statements meet threshold reliability. Ms. Egerton’s absconding is explained by the trial judge’s finding that she feared for her life. The concession that the third out-of-court statement does not itself meet threshold reliability is in our view enough to dispose of any need to consider it in the threshold reliability evaluation of the two video statements pursuant to the Khelawon jurisprudence.

[3] Secondly, the appellant argues a failure to consider the frailties of eyewitness identification evidence. However, in our view, it was entirely open to the trial judge to accept the identification evidence that he did. In particular, the appellant was known to Mr. Mayot and Mayot’s identification evidence was accepted by the trial judge.

[4] Thirdly, the appellant argues that the elements of the offence were not established. In our opinion there was ample evidence of both unlawful confinement and transportation and the offence was amply established.

[5] Finally as to the evidence of Mr. Mayot, it was open to the trial judge to accept his evidence in chief but not that adduced in cross-examination. The trial judge saw the appellant’s outburst and the reaction it evoked in the witness, and his finding cannot be interfered with in this court.

[6] In the circumstances the appeal must be dismissed.

“S.T. Goudge J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”