Accused was convicted of several robbery-related offences. Issue at trial was identification. Accused appealed his convictions on ground that trial judge erred by failing to provide instruction to jury on frailties inherent in identification evidence. Crown’s case consisted of identification evidence from complainant, powerful circumstantial evidence that connected accused to robbery and out-of-court statement recanted at trial made by friend of accused that indicated that accused confessed to him. Judge was not asked to give jury any special caution in respect of identification evidence. No objection to charge was made at conclusion of judge’s instructions. Not every case in which Crown led identification evidence as part of its case required caution. Even if failure to give instruction amounted to error of law, this was clear case for application of curative proviso. Circumstantial evidence on its own was overwhelming.
R. v. Oswald (Feb. 19, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C57068) 129 W.C.B. (2d) 3.