R. v. Bolianatz, [1990] 1 S.C.R. 847

Terry Michael Bolianatz Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Bolianatz

File No.: 20794.

1990: April 24.

Present: Lamer, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Evidence ‑‑ Proof beyond a reasonable doubt ‑‑ Accused identified "unequivocally" by victim ‑‑ Trial judge not left in state of doubt by evidence of victim identifying the accused ‑‑ Adverse inference not drawn by accused's failure to call alibi witnesses.

APPEAL from a judgment of the British Columbia Court of Appeal (1987), 1987 CanLII 2534 (BC CA), 20 B.C.L.R. (2d) 304, 3 W.C.B. (2d) 179, dismissing an appeal from conviction by Wong Co. Ct. J. Appeal dismissed.

S. Goldberg, for the appellant.

William Ehrcke, for the respondent.

The judgment of the Court was delivered orally by

Lamer J. ‑‑ The judgment of the Court will be delivered by Justice Sopinka.

Sopinka J. ‑‑ Although we agree with the submission that some of the language used in the trial judge's reasons was not apt, nontheless we are all of the opinion that in accepting the evidence of the complainant, Hodges, "with respect to identification unequivocally," the trial judge found that the evidence of the accused did not leave him in a state of doubt and therefore the charge was proved by the prosecution beyond a reasonable doubt.

Further, we are satisfied that the trial judge did not draw an adverse inference from the fact that the appellant did not call named alibi witnesses. By reason of the use of the word "nevertheless", it is not possible to conclude that such an inference was drawn. It is, therefore, not necessary to decide whether, in the circumstances, the trial judge would have been entitled to draw such an inference.

Accordingly, the appeal is dismissed.

Judgment accordingly.

Solicitor for the appellant: Sheldon Goldberg, Vancouver.

Solicitor for the respondent: The Attorney General of British Columbia, Vancouver.