Court Information
Date: October 28, 2016
Ontario Court of Justice Central West Region Brampton, Ontario
Parties
Between:
Her Majesty the Queen
-and-
Troy Tullah
Reasons for Judgment
Judge: Duncan J.
1. Charges
The defendant is charged with impaired driving and exceeding 80 mg of alcohol per 100 ml of blood. The offence date is September 27, 2015.
2. Crown's Case
The case is overwhelming. Indeed Mr. Starkman, very experienced counsel in these matters, conceded that he had no argument to present.
3. The Identification Issue
Except this: None of the three police officers and one civilian who testified for the Crown was asked to identify anyone in court as being the person that they saw and dealt with – the offender. Whether this was an oversight by the Crown or whether it was considered to be unnecessary is not known – and doesn't matter. The issue is what is the effect of this absence of the usual pointing out of the defendant?
The Crown's position is that such in-court identification is not necessary and that, while identification must be proven, it can be accomplished in other ways and by other evidence. The primary submission of the defence is that such pointing out is necessary but in any event, any other method of proof or evidence in this case is inadequate to establish identity beyond a reasonable doubt.
4. Legal Framework for Identity
Identity in a criminal case can refer to more than one question.
First: Who is the accused? This is rarely in issue. An accused is expected to identify himself to the court either personally or by his counsel. In this case, the person accused is someone named Troy Tullah. A man stepped forward in answer to that name and answered to the charge. His identity as Troy Tullah the accused person was thereby established: R v Nicholson (1984) 1984 ABCA 88, 12 CCC3d 228; [1984] AJ 2522 (Alta CA).
Second: Who is the offender? The main identification issue in this and many cases is: Who is the offender? The appearance of the accused before and attornment to the jurisdiction of the court does not in itself address this issue, except to the extent that it may complete the circle discussed below. The Crown must prove that the person accused (in this case the Troy Tullah who identified himself as per the above) is the person who committed the alleged offence(s).
5. Methods of Proving Identity
As with all issues, the burden of proof can be satisfied in any manner, provided that it is by admissible evidence and/or permissible inference. In this case, identification can be established by at least three routes which can be considered in combination to determine if the burden of proof has been met:
- Video evidence
- The circle - Continuity of offence, arrest, charge, release and appearance
- Evidence of name and other identifiers
Video Evidence
In this case the alleged offender was arrested and subjected to the usual procedures. His breath testing was recorded and played as evidence in court. The offender was thereby presented before me clearly and in color for about 40 minutes. I am entitled to make my own observations and compare the offender in the video to the accused Troy Tullah and draw my own conclusion: R v Nikolovski, [1996] 3 SCR 1197.
The Circle
The police officer witnessed the alleged offence and arrested the offender. The offender was released on an undertaking and promise to appear in court at a certain time on a certain date. He did – or at least someone did as his representative – there is no distinction. The case was remanded a number of times and eventually set for trial. On the date of trial the accused Troy Tullah appeared and answered the charge. The circle of identification is complete. The offender is the person arrested is the person released to appear is the person who appeared and is the accused: R v Nicholson supra at P 235; para 29[1]. Simply put, there is no way that the offender could be someone other than the accused before the court.
Name and Other Identifiers
The arresting officer identified the offender as Troy Tullah. The accused before the court acknowledged that he is Troy Tullah. Evidence of similarity of name provides some evidence of identification. It becomes stronger if the name is unusual or there are other identifiers such as address: R v O'Kane 2012 MBCA 82, [2012] MJ 307 (C A) pars 48-51. Here the information charged Troy Tullah of 47 Culture Crescent in Brampton. The form of release had the same name and address. The offender was arrested in front of that address. The link is rather strong.
6. Conclusion on Identity
I would be satisfied beyond a reasonable doubt that the accused was the offender by each of the video evidence or the circle inference standing alone. Together they provide overwhelming proof. It is not even necessary to consider the similarity of name.
7. Verdict
The defendant is found guilty of both offences. The exceed 80 charge is conditionally stayed.
8. Sentencing
This case had been adjourned to November 18th for judgment. I have decided to release my reasons now to provide advance notice of the decision and to alert counsel to be prepared to address sentence on November 18th. I further alert counsel that at that time all sentencing options will be considered including possibly a jail sentence having regard to the aggravating circumstances of the offence (high level of impairment; readings just under 200).
October 28, 2016
B. Duncan, J
B. Starkman for the defendant C. Waite for the Crown
Footnote
[1] In Nicholson the offender was released on an appearance notice prepared and served by the arresting officer. In this case it was a promise to appear and undertaking entered into before the officer in charge. I don't think it makes any difference. It is the process that matters. By the release, whatever be its form, the offender is leashed to the charge that soon appears in court and to which the defendant answers, completing the circle of identity between offender and defendant.