COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Oswald, 2016 ONCA 147

DATE: 20160223

DOCKET: C57068

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ajala Oswald

Appellant

Kim Schofield and Melina Macchia, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: February 19, 2016

On appeal from the conviction entered by a jury, presided over by Justice Bielby of the Superior Court of Justice, dated March 20, 2013.

ENDORSEMENT

[1] Following trial by judge and jury, the appellant was convicted of several robbery-related offences. The issue at trial was identification. The appellant appeals his convictions on the grounds that the trial judge erred by failing to provide any instruction to the jury on the frailties inherent in identification evidence and specifically present in this case. Counsel submits that as the prosecution’s case depended substantially upon the accuracy of the eyewitness’ identification of the appellant as one of the two perpetrators, the caution was mandatory.

[2] The Crown’s case consisted of identification evidence from the victim, powerful circumstantial evidence connecting the appellant to the robbery and an out-of-court statement recanted at trial made by a friend of the appellant indicating that the appellant had confessed to him.

[3] The trial judge was not asked to give the jury any special caution in respect of the identification evidence. No objection to the charge was made at the conclusion of the judge’s instructions.

[4] The case law from this court is clear that not every case in which the Crown leads identification evidence as part of its case requires a caution. However, where the accuracy of the eyewitness evidence plays any substantial role in the Crown’s case, the caution is mandatory.

[5] We think it would have been better had the trial judge given the cautionary instruction in this case. We repeat, however, that no request was made for the instruction and there is a strong argument to be made that the instruction, which would have carried with it an identification of the supporting evidence, would not have assisted the defence.

[6] Even assuming the failure to give the instruction amounted to an error in law, we think this is a clear case for the application of curative proviso. The evidence was overwhelming. First, the identification evidence itself was strong evidence. Second, the circumstantial evidence, considered cumulatively in our view, was simply overwhelming on its own. Consequently, the appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”