Defence

Identification

Overview

This page contains information about use of the "Identification" defence for various criminal charges in Canada. It was written and prepared by experienced criminal defence lawyers in Toronto but does not consist of legal advice.

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Identification as Legal Defence

In every case, the judge or jury has to be satisfied beyond a reasonable doubt that you are the person who committed the offence.

Even if there is no doubt that an offence was committed, the Crown may not be able to prove who did it beyond a reasonable doubt.

Further below you will find some examples of cases where we successfully defended our client using this defence.

Two common scenarios where the defence of identification would be raised are:

Scenario #1: There were no witnesses to the offence.

In this scenario, the Crown Attorney will usually need to rely entirely on circumstantial evidence to try and prove the identification of the offender since no one actually saw who did it. Examples of circumstantial evidence are:

Your fingerprints obtained from the scene of the crime
A victim’s blood found on your clothing
Drugs, firearms or stolen property found in your home
Evidence that stolen money was transferred into your bank account
The licence plate to your car found at the scene of a hit and run accident

One successful defence strategy is to show that there may be innocent explanations for the circumstantial evidence relied on by the Crown Attorney. Remember, in order for you to be found guilty, a judge or jury has to be convinced of your guilt beyond a reasonable doubt. When considering circumstantial evidence on the issue of identification, beyond a reasonable doubt means that the only reasonable conclusion that the judge or jury can come to based on the evidence is that you are the person who committed the offence.

Scenario #2: There was at least one witness to the alleged offence but the witness(es) did not personally know the offender.

In this scenario, the judge or jury would have to consider the witness’ ability to reliably identify the person they saw commit the offence. The courts have long recognized that there are weaknesses and dangers associated with identification evidence. These dangers and weaknesses exist because of factors like the following:

The witness only had time for a momentary or fleeting glance of the offender
The witness’ lack of prior dealings with the offender
Poor lighting
Poor eyesight
The speed at which the events transpired
Distractions faced by the witness at the time
Stress the witness was under at the time
Similarities between the appearance of the offender and other people
An honest but mistaken witness will often sound convincing

Charged with a Criminal Offence? Get Every Defence.

Do not plead guilty without discussing your case with a lawyer. Many criminal offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence. Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come.

You are presumed innocent. With over 25 years of successful trial experience, Norm and Marcus will argue for every defence available to you and ensure that all of your rights are protected. We will fight for the positive result you need to move on with your life.

Speak with Norm and Marcus. Call (416) 855-7799 or email us at [email protected]. We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

Recent Successes

Charges Dismissed Fail to Remain at the Scene of an Accident Identification Impaired Driving Our Case Refuse Breath Sample

R. v. C.C – Identification of offender not proven

Our client was charged with Fail to Remain at the Scene of an Accident, Impaired Driving and Refuse Breath Sample. The police received several calls regarding a car that had driven onto the sidewalk and crashed into a utility pole and fire hydrant. The driver ran away from the vehicle and fled through an alleyway. Police searched the area and observed our client, who fit the description of the man witnesses had seen running from where the accident had happened. After speaking to our client for a few minutes, our client became belligerent leading the police officers to handcuff him and detained him in their police car. Our client appeared to be impaired by alcohol. Because our client had refused to identify himself, the police went through his wallet to try to locate his identification. When going through his wallet, the police found a vehicle permit for the vehicle that had been in the accident. At trial, we demonstrated that none of the witnesses actually saw our client get out of the vehicle that had been in the accident. We also successfully argued that our client’s Charter right to be free from arbitrary detention was breached when the police handcuffed and detained him in the police car. They also breached his right to be free from unreasonable search and seizure when they went through his wallet and found the vehicle permit. As a result of these breaches, the circumstantial evidence of the vehicle permit was excluded from evidence and the charges against our client were dismissed.

Assault Assault Bodily Harm Charges Withdrawn Identification Our Case

R. v. C.M – Identification of offender not proven

Our client was charged with Assault Cause Bodily Harm and Assault in relation to a bar fight in which one of the victims was seriously injured as a result of being hit in the head with a beer bottle. We were able to convince the Crown Attorney that considering the commotion inside the bar at the time, the number of people involved in the fight, the poor lighting inside the bar and the fact that all the witnesses appeared to be intoxicated, it was extremely unlikely that it could be proven that our client was the individual who had committed the assaults in question. The charges against our client were withdrawn prior to trial.

Charges Dismissed Dangerous Driving Flight from Police Identification Our Case

R. v. M.N. – Identification of offender not proven

Our client was charged with Flight from Police and Dangerous Driving. He was accused of going close to 200 km/hr on a motorcycle and, when the police tried to pull him over, fleeing at an even higher rate of speed and evading the police officer who was in pursuit. The police officer noted the licence plate number but was unable to identify the rider. At trial, the Crown Attorney had to rely entirely on circumstantial evidence to try to prove the case; specifically the owner of the motorcycle testified that he had loaned the bike to our client on the night of the incident and that our client had even confided in him that he had been able to outrun the police. At trial, the credibility of the owner of the motorcycle was attacked through effective cross-examination. The charges against our client were dismissed on the basis that the identification of the rider of the motorcycle had not been proven.

Charges Dismissed Identification Our Case Robbery

R. v. M.R – Identification of offender not proven, Charges Dismissed

Our client was charged with robbing a man of his wallet in an alleyway. It was alleged that our client had befriended the victim in a bar and that when they went outside for a cigarette together, our client threatened and assaulted the victim and stole his wallet. Our client’s health card was found by the victim in the ground in the alleyway where the robbery had taken place shortly after the assailant was said to have fled. At trial, through effective cross-examination, we successfully demonstrated that victim’s ability to describe the assailant was unreliable and that he may have been mistaken in his belief that the individual who’s photograph was on the health card (our client) was the same person who had robbed him. After our cross-examination of the victim, the Crown Attorney invited the judge to dismiss the charge.