Ontario Criminal


Judge’s reasons disclosed significant legal misdirection related to eyewitness identification

Appeal by accused from his conviction for impaired driving. Assistant manager of fast food establishment took order from customer who he never met before and who he thought was intoxicated. After customer left assistant manager got two other customers to obtain licence plate number of his vehicle and assistant manager called police. Police attended at accused’s home and they arrested him after they conducted search of licence plate and discovered that accused was registered owner of vehicle. Two officers who attended at accused’s home testified that they did not have reasonable and probable grounds to arrest vehicle owner. They entered accused’s property but they did not proceed to front door to communicate with accused. Instead, they conducted illegal perimeter search, which included warrantless search of vehicle using flashlights. Police then made non-consensual entry into residence where they observed and spoke to accused. Trial judge found that perimeter search and investigation of accused’s property and illegal entry into his home constituted breach of s. 8 of Canadian Charter of Rights and Freedoms. Subsequent arrest was unlawful and it violated s. 9 of Charter. Judge excluded evidence of two officers because it was obtained in manner that its admission would bring administration of justice into disrepute. However, accused was convicted based on assistant manager’s evidence that accused was impaired and his identification evidence of him. Appeal allowed and accused was acquitted. Resolution of appeal was not based on Charter violations. However, in dealing with identification evidence issues, judge’s reasons disclosed significant legal misdirection and non-direction related to eyewitness identification. Evidence raised very real concerns about assistant manager’s reliability as eyewitness. Judge concluded that identification of accused as driver of vehicle was proven by relying on assistant manager’s in-court identification of him. In-dock identification by assistant manager, who was previously unacquainted with accused prior to relevant event, was valueless. Judge had to rely on evidence based on discovered vehicle at accused’s home that had same licence plate number as vehicle at restaurant. Reliance was problematic based on inadequacies of such evidence and it could not be relied upon to prove, beyond reasonable doubt, that accused was customer encountered by assistant manager.

R. v. McDonald (Feb. 26, 2014, Ont. S.C.J., Hill J., File No. 83/13) 111 W.C.B. (2d) 900.

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