Judge properly instructed himself as to frailties of eyewitness identification

Ontario criminal | Appeal

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Judge properly instructed himself as to frailties of eyewitness identification

Summary conviction appeal of accused who was convicted of obstructing police officer. On July 28, 2008 police officer attended at coffee shop and was informed that there was dispute between staff and accused and accused was told not to return. Officer attended at accused’s cottage. He could not attend at front door because of construction that made it inaccessible. Officer went to rear of house and found patio, open glass patio door and person who sat behind computer. Person, who officer identified as accused, tried to hide but officer told him that he could see him. Accused was dressed as a woman. Officer told accused about coffee shop complaint and that he was looking for accused. Accused told officer accused was not there and he identified himself as someone else and he provided his birth date. Officer asked for identification but accused was not able to provide such documentation. He checked records for name and birth date of name he was given and he found nothing. When he searched accused’s name he found that he was subject to order which required him to stay at his residence. Officer attended at cottage on August 13, 2008 and he stopped car driven by accused. Accused produced licence that showed his proper name. He was arrested for false identification he initially provided to officer on July 28. Based on three contacts that accused had with officer, trial judge did not misapprehend issue of identification based on officer’s evidence. Judge properly instructed himself as to frailties of eyewitness identification evidence and regarding dangers of convicting person based on such evidence. Judge did not err regarding legal test for finding of lawful execution of duty and he did not misapprehend evidence related to lawful execution of duty. There was no breach of implied licence to knock rule for officer only had to knock on door that he could access. He was not required to knock on front door. Judge reached proper conclusion when he found accused guilty of obstructing police officer.

R. v. Tonner (Feb. 13, 2012, Ont. S.C.J., Kershman J., File No. 675/10) 100 W.C.B. (2d) 385 (19 pp.).

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