CITATION: R. v. Bolster, 2009 ONCA 519
DATE: 20090625
DOCKET: C49719
COURT OF APPEAL FOR ONTARIO
Sharpe, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Scott Bolster
Appellant
Leslie Maunder, for the appellant
Karen Papadopoulos, for the respondent
Heard and released orally: June 19, 2009
On appeal from the conviction entered by of Justice R. Jennis of the Ontario Court of Justice dated September 26, 2007.
ENDORSEMENT
[1] The appellant was convicted of break and enter with intent to commit theft. The sole issue at trial and on this appeal is identification. The victim of the break and enter saw the perpetrator for 10 to 20 seconds and then picked the appellant out of a photo line-up four days later. Within minutes of the offence, the appellant was arrested near the scene of the crime with a gym bag containing tools.
[2] We do not agree with the submission that the trial judge effectively reversed the burden of proof by failing to consider certain frailties in the identification evidence as a whole. In our view, his reasons indicate that he was alive to these frailties, including the fact that the photo line-up was not conducted in strict compliance with the recommendations of the Sophonow Inquiry, as well as certain discrepancies in the description of the perpetrator given by the victim. At the end of his reasons, he concluded as follows:
I have addressed my mind to the frailties of identification evidence and apparent inconsistencies between the description of the suspect and the accused. They are not of such concern that they raise a reasonable doubt.
Given the witness’ opportunity to observe the face of the suspect, the quality of the photographic lineup and procedure, as well as the accused’s presence, temporarily and physically, two blocks from the location of the incident, I find the Crown has proven beyond a reasonable doubt that the accused was the person who broke and entered into the witness’ residence with intent to commit an indictable offence.
[3] Despite Ms. Maunder’s very able submissions, we see no error in these reasons that would warrant appellate intervention.
[4] Accordingly, the appeal is dismissed.
“Robert J. Sharpe J.A.”
“David Watt J.A.”
“G.J. Epstein J.A.”