Criminal Law Notebook

Identity

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General Principles

Identity of the accused person as the culprit is always a required element to be proven for a given offence. As with all essential elements, it must be proven on a standard of beyond a reasonable doubt.[1]

It can be proven by way of several methods, none of which are necessarily determinative. Those include:

  • first-hand eye-witness who observes the accused as person committing the offence
  • exclusive opportunity
  • security system photographs/video
  • voice identification
  • finger prints
  • foot prints
  • DNA

All of these methods amount to direct or circumstantial evidence that allow the trier-of-fact to be satisfied that the person who committed the offence was actually the accused person on trial.

Section 6.1 permits any witness to "give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner."[2]

Charter Issues

There is some support for the possibility that identity evidence can be the subject of an order for exclusion of evidence under s. 24(2) of the Charter when a Charter violation is found.[3]

Appellate Review
See also: Standard of Appellate Review

The essential element of identity is a question of fact.[4] The judge must have had evidence that "could logically and reasonably draw the inference" of identity.[5]

  1. ↑ R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, at para 21 ("...the issue of identification of the person before the court as the person who committed the offence. Unless admissions are made by the defence, this is an element requiring proof in every criminal trial.")
    R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at para 4 ("The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proved in many different ways.") and 27 ("I take no exception to the authorities offered for the appellant which repeat the fundamental proposition that, for guilt, the Crown must prove that the person named in the Information and before the Court is beyond any reasonable doubt the person who committed the offence.")
  2. ↑ see s. 6.1 of the Canada Evidence Act, RSC 1985, c C-5
  3. ↑ R v Lewis, 2011 ONCJ 105 (CanLII), per Reinhardt J
  4. ↑ R v Thompson, 2015 NSCA 51 (CanLII), per Farrar JA, at para 75
  5. ↑ Thompson, supra, at para 75
    R v Hoben, 2009 NSCA 27 (CanLII), per Roscoe JA, at paras 18 to 20

Eyewitness Identification

Other Methods of Proving Identity

Proving Identity of Online Communications

It rare that a person will identify themselves by their own name.[1] Accordingly, the identity of a person communicating online must be done by inference in most cases.

A sender of an email can be identified using evidence of accessibility to the sender's computer and accessibility to sender's account, including whether the accused's login information was used to send it.[2] This holds true for communication by social media as well.[3]

In certain cases, it is possible to identify the person behind a particular user account by considering the information provided in the account as well as the content of the communications.[4]

The presence of a wireless, by itself, cannot lead to the inference that another person may be responsible for the internet communication.[5]

Identity of Sender of Cell Phone Text Messages

Proving the identity of the sender and receiver of text messages is part of the authentication process to admit them.[6]

  1. ↑ e.g. R v Kwok, [2008] O.J. No 2414(*no CanLII links) , at para 7 -- "[the officer's] evidence indicated that 99% of users do not use their real names."
  2. ↑ e.g. R v Mirsayah, 2007 BCSC 1596 (CanLII), per Groberman J, at paras 79, 80
  3. ↑ e.g. R v Weavers, 2009 ONCJ 437 (CanLII), per West J, at para 86
  4. ↑ R v Harris, 2010 PESC 32 (CanLII), per Mitchell J -- determined ID for a facebook account based on content of conversations
  5. ↑ R v Brzezinski, 2009 CanLII 78360 (ON SC), per Bryant J, at para 46 - warrant upheld on basis that inference of a third party downloading child pornography not reasonable
  6. ↑ See more at Electronic Documents and Records#Authentication

Finger Prints

Fingerprint evidence should be accompanied by some form of evidence supporting a "temporal connection" it make out a circumstantial case.[1]

  1. ↑ R v Yonkman, 2005 BCCA 561 (CanLII), , 202 CCC (3d) 289, per Lowry JA, at to 11 paras 9 to 11{{{3}}}

DNA

Police Identification of Arrested Person

Adverse Inference

Where defence intend to argue that the person in court is not the person who was arrested, the judge may make a negative inference from the accused’s counsel failure to put the lack of evidence the arresting officer at trial.[1]

A refusal by the accused to let anyone look at his arm for identifying features can permit an adverse inference supporting proof of identity.[2]

  1. ↑ R v Ouellette, 2005 ABCA 282 (CanLII), , 200 CCC (3d) 353, per Cote JA, at para 42 (“The adverse inference seems to me doubly apt when the unusual suggestion that the man arrested and the man charged might differ, was not put to the arresting constable in cross-examination, nor argued at trial.”)
    R v Banish, 2014 ABCA 374 (CanLII), per Paperny JA
    R v Callaghan, 2020 ABPC 208 (CanLII), per Stirling J, at paras 102 to 104
  2. ↑ Ouellette, supra, at para 41 ("The Supreme Court of Canada has put restrictions on a trial judge’s right to note and rely upon the accused’s failure to testify. But I see no reason why the Court of Appeal cannot note this accused’s failure to let anyone look at his arm.")

Admissions by Counsel

The court may rely on the in-court utterances of counsel identifying the accused in the court by their name.[1]

  1. ↑ R v Callaghan, 2020 ABPC 208 (CanLII), per Stirling J, at paras 99 to 101
    R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at para 19 ("The accused in this case was somebody described by the informant only as “John Robert Nicholson”. Be that as it may, there was a formal admission by counsel for the defence that a certain person in the courtroom was the accused. If there was some innocent person named John Robert Nicholson in this world who might somehow accidentally have got involved in this lawsuit, it did not happen. By his counsel, the man in the courtroom admitted that he was the accused, which means the person referred to by the informant in the Information. It was that person who was the accused and who now stands convicted. Unsurprisingly, he seems to answer to the name used in the Information.")

Court Records

A court is entitled to take judicial notice of all official documents on file.[1]

A promise to appear or appearance notice that includes the name and address of the accused can be used to establish identity if there is evidence that the accused was arrested and released on one of those two release mechanisms.[2]

  1. ↑ R v Ouellette, 2005 ABCA 282 (CanLII), per Cote JA, at para 23 ("In my view, a trial judge would be entitled to look at that court record and take judicial notice of its existence. Therefore, so can the Court of Appeal hearing an appeal from a trial judge.")
  2. ↑ R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at paras 29 to 30
    R v Callaghan, 2020 ABPC 208 (CanLII), per Sterling J, at para 88 ("An Appearance Notice or a Promise to Appear can be used to establish identity if there is evidence the offender was arrested at the time of the offence and released with an Appearance Notice")

Voice Identification

See also: Eyewitness Identification and Lay Opinion Evidence

When determining if the voice on a wiretap matches that of the accused, the judge may consider the accused's voice during testimony and compare it with the voice recorded.[1]

While a non-expert may give testimony on identifying a voice, there are several factors that determine the weight that should be given:[2]

  1. Is there direct or circumstantial evidence that the speaker is, in fact, the appellant?
  2. Are the events following the conversations in which the appellant was identified consistent with the speaker being the appellant? For instance, in the case on appeal, a meeting was arranged but the appellant never carried through with it.
  3. Is there some peculiarity or distinctiveness to the appellant's voice that would make it more readily identifiable? Are there "internal patterns" or patterns of speech, distinctly associated with the appellant?
  4. Did the speaker disclose facts known by the appellant or, more compellingly, known only to the appellant?
  5. Are the "context and timing" of the conversation consistent with the theory that the speaker is the appellant? Or, on the other side of the coin, was the identity of the speaker tainted by the witness's expectation that he would be the appellant?
  6. Are there distinctive or distinguishing features of the voice?
  7. Did the party to the communication identify him or herself?
  8. Did the party to the communication provide information that would allow the listener to identify him or her?
  9. Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified?
  10. Did the witness hear the voices under the same conditions, or was the emotional state different in each situation?
  11. What is the length of time during which the witness was able to hear the voice?
  12. Was there any reason for the witness to focus on the voices?
  13. What was the condition of the witness when he or she heard the voices, alert or groggy?
  14. What was the length of time between the times the witness heard the voices?
  15. Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not?
  16. Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused?
  17. Is the witness' opinion contradicted?

The judge is entitled to use his own senses to evaluate the recorded voices to determine identity.[3]

It is not necessary to prove that the voice is that of the accused beyond a reasonable doubt as an essential element.[4]

Frailties

Similar to eye-witness identification, voice identification suffers from the frailty that the witness may misidentify the accused and should be treated with extreme caution. [5]

A jury should be cautioned about the frailties of voice identification particularly in matching voices.[6] Concerns include:

  • risk of relying on their own untrained ears, or those of a witness, none of whom had the benefit of equipment or training that would be available to an acoustic phonetician;
  • the fact that witness confidence in voice identification does not make the identification reliable;
  • the importance of considering the length and quality of the voice samples;
  • the availability of high quality non-distorting playback systems; and,
  • if applicable, the difficulties inherent in cross-racial voice identification
  1. ↑ R v Gyles, 2005 CanLII 47588 (ON CA), per curiam
  2. ↑ R v Williams, 1995 CanLII 695 (ON CA), per Finlayson JA
    R v Chan, 2001 BCSC 1180 (CanLII), per Dorgan J, at para 31
    R v Parsons, [1999] Y.J. No. 3 (Terr. Ct.)(*no CanLII links)
    R v Saddleback, 2013 ABCA 250 (CanLII), per curiam, at para 25
    R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J
  3. ↑ R v Wu, 2010 ABCA 337 (CanLII), per curiam
  4. ↑ Chan, supra, at para 26 (the Crown "need not prove voice identification beyond a reasonable doubt. The evidence of voice identification is simply an individual item of evidence going to the identity of the accused and, accordingly, the standard of proof is by a preponderance of evidence")
  5. ↑ Chan, ibid., at para 22
    R v Clouthier, 2012 ONCA 636 (CanLII), per Sharpe JA, at para 19
  6. ↑ R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J R v Masters, 2014 ONCA 556 (CanLII), per curiam - suggested not necessary, but preferred

Proof of Age

Any testimony by a person as to their own date of birth is sufficient evidence to prove their age.[1]Likewise, any testimony of a parent as to the age of their child will be admissible to establish that child.[2]

Otherwise, age can be proven by any number of means such as birth certificate, baptismal certificate, or material hospital record.[3]

Any other reliable evidence can also be considered.[4] Including the observations of the judge of the person's appearance.[5]

  1. ↑ see s. 658(1)
  2. ↑ see s. 658(2)
  3. ↑ see s. 658(3)
  4. ↑ s. 658(4)
  5. ↑ s. 658(5)

See Also

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