What is the test for identification evidence in a sexual assault case?

Ontario, Canada


The following excerpt is from R. v. Ghorbani, 2016 ONCJ 783 (CanLII):

I first approach the identification evidence by asking myself whether the surveillance video is of sufficient clarity and quality to allow me to identify the accused as the person in the tape beyond a reasonable doubt. I took many opportunities during the trial to make close observation of the accused to prepare myself to review the surveillance video in chambers for this exercise. I have watched the surveillance video, particularly the video captured on camera 1 in the lobby area both on the perpetrator's entry to the building and his exit from the building to determine if I could be so satisfied. The surveillance video satisfies me that the offences were committed by the man in the Montréal Canadians Jersey but is not of sufficient clarity and quality to be able to say beyond a reasonable doubt that the defendant is the person in the videotape. The video has no sound and gives no clear images of the face of the perpetrator such that I could be satisfied on the criminal standard. I find that the video is not of sufficient clarity and quality that it would be reasonable for me to identify the accused as the person in the tape beyond a reasonable doubt, the test set out in Regina v. Nikolovski (1996) 1996 CanLII 158 (SCC), SCJ 122 at para 23. The best I can say is the man in the Canadians jersey is somewhat similar in appearance to the accused.

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