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EVIDENCE - Methods of proof - Identification

Wednesday, February 22, 2017 @ 11:19 AM  

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Appeal by the accused, Campbell, from a conviction for break, enter and robbery. Two people wearing hats and masked with bandanas entered a residence and robbed one of the occupants, Brydges, of money he had received earlier that day. One perpetrator, identified as Landry, did all of the talking while brandishing a knife. The second perpetrator, alleged to be the accused, stood silently behind Landry with a gun under his arm. Brydges gave the perpetrators $2,000 and they fled. Landry was arrested shortly thereafter. He pled guilty and implicated the accused. The sole issue at trial was identification. Brydges and another occupant testified that they recognized the accused as an individual they had previous social dealings with known as Mack Truck. They identified the accused and Landry from Facebook photos. Landry testified at the accused's trial and admitted his involvement but stated he was unable to remember the identity of the second perpetrator. The accused testified and acknowledged his nickname and prior dealings with the victims. He denied his involvement in the robbery. The trial judge rejected the accused's evidence and disbelieved Landry's inability to remember the robbery. The trial judge accepted the victims' identification evidence, concluding the accused was the second perpetrator. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in approaching the identification evidence with respect to the victims' past familiarity with the accused. The trial judge expressly adverted to the dangers of eyewitness identification and the need to scrutinize the evidence carefully. The judge properly considered the weaknesses in the identification given the traumatic circumstances of the robbery and the face coverings worn by the assailants. Nothing in the identification process impugned the reliability of the victims' identification of the accused, notwithstanding a mistake regarding his eye colour. The identification was based on the victims' recognition of the accused through their prior association, the defining features of his size and appearance, and his reaction to the Mack Truck nickname. The trial judge did not err in rejecting Landry's evidence, or misuse it in the path to conviction of the accused. No misapprehension of the evidence was established related to the accused's evasion of police. There was no evidence of bad character propensity reasoning based on the accused's prior affiliation with the social circle mentioned by the victims.

R. v. Campbell, [2017] O.J. No. 380, Ontario Court of Appeal, J.M. Simmons, K.M. van Rensburg and B. Miller JJ.A., January 25, 2017. Digest No. 3630-004