January 13, 2012 – In a recent Ontario Court of Appeal case, a new trial was ordered because the identity of the accused person was not properly established. In R. v. James,  O.J. No. 6275, December 28, 2011, James was charged with two Criminal Code offences: first degree murder and robbery while using a firearm. It was alleged that two men, one black and one white, robbed two other men at gunpoint. During the robbery, one of the robbers shot and killed one of the victims. The surviving victim could not identify either robber except for the fact that one of the robbers was a white male and the other was a black male.
The lower court found James guilty of manslaughter and robbery while using a firearm. The accused was identified by a witness, Diedrick, from a photograph taken of her, James and Whyte. Diedrick identified the accused as being James during the earlier trial of Whyte. However, during James’s trial, Diedrick had a total loss of memory and could not remember who James was, other than knowing who he was because he was on trial. She was therefore not cross-examined at trial because she had already told the court she had a major lapse in memory. The Ontario Court of Appeal in this case noted that it would have been pointless for defence counsel to cross-examine her after her admission of unreliability.
The Crown nevertheless presented evidence from Whyte’s trial that Diedrick had identified James as the black man in the photograph. This identification of James was considered by the Ontario Court of Appeal as hearsay evidence which should have been excluded.
Evidence, such as a photograph, can be admitted if the content can be identified by a credible source. However, the identification of James in the photograph was made by Diedrick during Whyte’s trial and was therefore hearsay evidence at James’ trial. The Ontario Court of Appeal ruled that the Crown failed to prove the reliability of Diedrick’s prior testimony and, therefore, the identification of James should have been excluded at trial. For this reason, the conviction was overturned and a new trial was ordered.