R. v. Tullah, 2016 ONCJ 774

CITATION: R. v. Tullah, 2016 ONCJ 774 DATE: October 28, 2016 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- TROY TULLAH REASONS FOR JUDGMENT Duncan J. 1. The defendant is charged with impaired and exceed 80, offence date Sept 27 2015. 2. The case is overwhelming. Indeed Mr. Starkman, very experienced counsel in these matters, conceded that he had no argument topresent. 3.

Except this: None of the three police officers and one civilian who testified for the Crown was asked to identify anyone in courtas being the person that they saw and dealt with – the offender. Whether this was an over-sight by the Crown or whether it wasconsidered to be unnecessary is not known – and doesn’t matter. The issue is what is the effect of this absence of the usual pointing outof the defendant? 4. The Crown’s position is that such in- court identification is not necessary and that, while identification must be proven, it can beaccomplished in other ways and by other evidence.

The primary submission of the defence is that such pointing out is necessary but inany event, any other method of proof or evidence in this case is inadequate to establish identity beyond a reasonable doubt. 5. Identity in a criminal case can refer to more than one question. First. Who is the accused? This is rarely in issue. An accused isexpected to identify himself to the court either personally or by his counsel. In this case, the person accused is someone named TroyTullah. A man stepped forward in answer to that name and answered to the charge.

His identity as Troy Tullah the accused person wasthereby established: R v Nicholson (1984) 1984 ABCA 88 , 12 CCC3d 228; [1984] AJ 2522 (Alta CA).

6. The main identification issue in this and many cases is: Who is the offender? The appearance of the accused before andattornment to the jurisdiction of the court does not in itself address this issue, except to the extent that it may complete the circlediscussed below. The Crown must prove that the person accused (in this case the Troy Tullah who identified himself as per the above) isthe person who committed the alleged offence(s). 7. As with all issues, the burden of proof can be satisfied in any manner, provided that it is by admissible evidence and/orpermissible inference.

In this case, identification can be established by at least three routes which can be considered in combination todetermine if the burden of proof has been met : 1. Video evidence 2. The circle - Continuity of offence, arrest, charge, release and appearance. 3. Evidence of name and other identifiers Video: 8. In this case the alleged offender was arrested and subjected to the usual procedures. His breath testing was recorded and played asevidence in court. The offender was thereby presented before me clearly and in color for about 40 minutes.

I am entitled to make myown observations and compare the offender in the video to the accused Troy Tullah and draw my own conclusion: R v Nikolovski (SCC), [1996] 3 SCR 1197 The Circle: 9. The police officer witnessed the alleged offence and arrested the offender. The offender was released on an undertaking andpromise to appear in court at a certain time on a certain date. He did – or at least someone did as his representative – there is nodistinction. The case was remanded a number of times and eventually set for trial. On the date of trial the accused Troy Tullah appearedand answered the charge.

The circle of identification is complete. The offender is the person arrested is the person released to appear isthe person who appeared and is the accused: R v Nicholson supra at P 235; para 29[1]. Simply put, there is no way that the offendercould be someone other than the accused before the court. Name and other identifiers 10. The arresting officer identified the offender as Troy Tullah. The accused before the court acknowledged that he is Troy Tullah.Evidence of similarity of name provides some evidence of identification.

It becomes stronger if the name is unusual or there are otheridentifiers such as address: R v O’Kane 2012 MBCA 82 , [2012] MJ 307 (C

A) pars 48-51. Here the information charged TroyTullah of 47 Culture Crescent in Brampton. The form of release had the same name and address. The offender was arrested in front ofthat address. The link is rather strong. Conclusion: 11. I would be satisfied beyond a reasonable doubt that the accused was the offender by each of the video evidence or the circleinference standing alone. Together they provide overwhelming proof. It is not even necessary to consider the similarity of name. 12. The defendant is found guilty of both offences. The over 80 charge is conditionally stayed. Sentence:

13 . This case had been adjourned to November 18 th for judgment. I have decided to release my reasons now to provide advance notice of the decision and to alert counsel to be prepared to address sentence on November 18 th . I further alert counsel that at that time all sentencing options will be considered including possibly a jail sentence having regard to the aggravating circumstances of the offence (high level of impairment; readings just under 200). October 28, 2016 B. Duncan, J B. Starkman for the defendant C. Waite for the Crown