Between
Her Majesty the Queen, respondent, and
W.F., appellant
[1992] O.J. No. 3672
C.A. No. 1034/90
Ontario Court of Appeal
Toronto, Ontario
Tarnopolsky, Galligan and Labrosse JJ.A.
December 15, 1992.
(2 pp.)
On appeal from Grossi J.
Criminal law - Evidence and witnesses - Identification - By a stranger, requirement of warning.
This was an appeal from conviction. The complainant identified his aggressor as a black youth, six-feet tall and wearing a black jacket. He acknowledged that it was too dark for facial identification.
HELD: The appeal was allowed and an acquittal entered. The conviction was unsafe. The trial judge erred in failing to refer to the difficulties or dangers of convicting a person based on such identification evidence and erred in placing weight on the fact that the complainant identified his aggressor without hesitation.
Counsel:
Lorne Sabsay, for the applicant.
J.A. Ramsay, for the respondent.
The judgment of the Court was delivered by
1 The complainant identified his aggressor as a black youth, 6 feet tall and wearing a black jacket with red stripes. He acknowledged that the light was too dim for facial identification and that he did not see enough of the aggressor's face to remember it.
2 The trial judge did not refer to the difficulties and dangers of convicting a person with regard to identification, and he was in error in placing weight on the fact that the complainant was a good witness and that he identified his aggressor at trial without hesitation. See R. v. Izzard, 54 C.C.C. (3d) 252.
3 Accordingly, the conviction is unsafe and cannot be upheld. The appeal is allowed and an acquittal is entered.
TARNOPOLSKY J.A.
QL Update: 960401
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