Court of Appeal for Ontario

Citation: R. v. Sothinathan, 2013 ONCA 727 Date: 2013-11-29 Docket: C56309

Before: Goudge, Juriansz and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

Balamuralee Sothinathan Appellant

Counsel: Ashley Audet, for the appellant Greg Skerkowski, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on October 4, 2012 by Justice Mavin Wong of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant argues that his conviction constitutes an unreasonable verdict because the complainant’s evidence identifying him as the perpetrator was inadequate to support that conviction.

[2] We cannot agree. The trial judge found that this was not a case of identifying a stranger. The complainant had seen the appellant daily at school for a couple of weeks and was in a car beside the appellant with an unobstructed view of him for 40 to 45 minutes during the commission of the offence. The trial judge was justified in finding that the complainant was sufficiently well-acquainted with the appellant, that the identification could be safely relied upon.

[3] This was enough to allow the trial judge to be properly satisfied with the in-dock identification alone. However, that evidence was supplemented by the complainant picking out the appellant with 75 per cent certainty on viewing a blurry photograph in the photograph line-up on second viewing, after failing to pick out the appellant on the first attempt. In our opinion, it was open to the trial judge to use this as he did, that is, to treat this as additional, though limited support for the identification.

[4] Finally, we do not consider that in these circumstances the conducting of the photo line-up in any way undermined the in-dock identification. Moreover, there was ample evidence to supplement the identification evidence and in conclusion, this was not an unreasonable verdict.

[5] The appeal must be dismissed.