



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 prosecutions 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 Crowns 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 judges 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 Crowns 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.


