Court File and Parties
COURT OF APPEAL FOR ONTARIO
Goudge, Armstrong and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Candace A. Smaggus
Appellant
Counsel: Howard L. Krongold, for the appellant Niall Gilks, for the respondent
Heard: October 3, 2011
On appeal from the conviction entered on April 29, 2010 by Justice Richard Lajoie of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
1In our view the trial judge erred in failing to distinguish the relative probative value of the three occasions on which the officer identified the appellant. The third was clearly of far less probative value. Also, despite the Crown’s admission, the trial judge erred in failing to treat as evidence before him Constable Fortin’s description of perpetrator being 5’7” which is relevant to the issue of identification. Finally it would have been preferable had the trial judge cautioned himself about the generic weaknesses of eye witness identification evidence in general. Although we cannot say the verdict is unreasonable, these errors require a new trial.
2Appeal allowed and a new trial ordered.