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The Inherent Frailties in Identification Evidence

December 15, 2023

Monday April 13, 2015 - R. v. Olliffe, 2015 ONCA 242
Does Recognition Evidence Significantly Differ from Identification Evidence? – Yes and No…

Because recognition evidence is a form of identification evidence – but it is often treated as more reliable by the courts. Identification evidence more broadly is when a suspect is identified by strangers, while recognition evidence is when someone who knows the suspect or accused recognizes them in a police sketch or photo and alerts the authorities. 

In a particular case at the Ontario Court of Appeal, R. v. Olliffe, the recognition evidence was at issue. The accused was identified by an ex-girlfriend, with whom he had lived for a number of months on separate occasions, as the robber in a number of pictures released by the police. There had been multiple robberies at different Tim Horton’s restaurants in Oshawa, but each time the suspect was described a little bit differently – the height varied, the facial hair, the presence of scars or pockmarks, the color of the hair, visibility of skin color, ages, etc. 

Of the four robberies, two – the first and last – occurred at the same location, with the same employee as a witness. This employee could not be certain that the last robber was the same as the first. Another employee gave a description of the robber that was different from the description of the first robbery. In all instances, a travel mug was extended, and money was demanded, with the threat of a knife. 

Pictures of the suspect were released by the police, taken from security footage. One photo was from surveillance footage of the first robbery, two pictures were from the second, and two were from the third. The accused’s ex-girlfriend, also an employee of Tim Horton’s, saw the pictures in the staffroom and recognized the facial hair, clothing, accessories, and posture in a number of the photographs. She contacted Crime Stoppers, leading to the arrest and search of the accused’s home, where a number of the articles similar to those worn by the robber were found. 

The trial judge found the accused guilty of all charges relating to two robberies, and based on similar fact evidence, came to the conclusion that the accused was guilty of the other charges – two counts of armed robbery, two counts of face-masking with the intent to commit indictable offence, and one count of carrying a concealed weapon for the purpose of committing an indictable offence. 

The Appeals Verdict

The accused appealed the trial judge's decisions with the assistance of a criminal defense lawyer on the grounds that the trial judge did not take into consideration the unreliability of identification evidence, while also disregarding some of the inconsistencies in the evidence, such as the fact that employees and eye witnesses to the robberies did not pick the accused out of a line up. In addition to this, the trial judge accepted the testimony of the accused’s ex-girlfriend because of her certainty, but overlooked her assertion that had the robberies taken place outside of Oshawa, she would not have seen the photos and thought they were of the accused. 

Based on the arguments and evidence put forth by the appeals lawyer, the appeals court found that the decisions reached at trial regarding sentencing and convictions were unreasonable, and ordered they be set aside. Acquittals were also entered on all counts. 

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If you or a loved one are faced with criminal charges in Ontario, or have been given a verdict that is unfair, contact Karrass Law about your defense and appeals. Our team of experienced lawyers will provide tailored legal advice and represent your best interests. 

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