General Principles

 

Proving the identity of an accused person at a preliminary inquiry does not necessarily require an in-doc identification. Where the complainant identifies the name of her assaillant, and that name is the same as the name of the person charged, this constitutes some evidence of identitty: R v Webster2016 ONCA 189 at para 6

It is all the more so when the complainant also identifies an address and other biographical details that are similar to those provided in the charging documents against the accused: Webster at para 6

The failure of the preliminary inquiry justice to consider the identity of names as some evidence of identity amounts to a failure to consider the whole of the evidence as required by s. 548(1) of the Criminal Code. Such a failure constituted a jurisdictional error: Webster at para 7

Eye-Witness Identification

Even at the best of times, identification evidence is subject to well-known and inherent frailties. Particular vigilance is therefore required in relation to this type of evidence: R v McCracken, 2016 ONCA 228 at para 25

Although familiarity may enhance the reliability of evidence, the same cautions and concerns nonetheless apply to recognition evidence: McCracken at para 25

 

The trial judge need not give a caution to the jury about the frailties of eye-witness identification in every case in which the Crown leads identification evidence as part of its case requires a caution.  However, where the accuracy of the eyewitness evidence plays any substantial role in the Crown’s case, the caution is mandatory: R v Oswald, 2016 ONCA 147 at para 4

 

On appeal, the court must determine whether the identification evidence, together with the circumstantial evidence, provides a satisfactory basis for the conviction: McCracken at para 27

Proof of Identity in Fail to Comply/Appear Cases

The onus is on the Crown to prove (or in the case of a directed verdict, to present some evidence) that the person named in the information and before the court is the person who was the subject of the promise to appear.

 

It is not essential that the original arresting officer provide in-court identification of the accused where other circumstantial evidence provides evidence on the issue: St. Pierre at para 9

In St. Pierre, for example, the Court of Appeal held that the following evidence, taken together, afforded some evidence that the accused was the person identified in the promise to appear, sufficient to dismiss a motion for a directed verdict:

  • The fact that the same name and date of birth were listed on the promise to appear and the information charging the accused with failing to attend (para 10)

  • the fact that the accused turned himself in on his own volition for an outstanding warrant for failing to attend court (para 11)

  • the fact that the accused conceded confirmation of the promise to appear "effectively accepting that he was named in a promise to appear and that the promise to appear was served on him" (para 12) 

  • the fact that the certificated tendered at trial demonstrate that the accused was named in the promise to appear, the promise to appear was confirmed by a justice, and that he failed to attend court as required (para 12)