Eyewitness Identification

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General Principles

Courts are very cautious and "weary" of eyewitness identification evidence as it is considered "inherently" and "notoriously" unreliable.[1] It is essential that courts recognize the risk of honest but mistaken beliefs of an eyewitness.[2] It is “well-established” that the frailties of eyewitness identification has “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”[3] Even honest and convincing witnesses may misidentify individuals.[4] Consequently, identification evidence is treated differently than other evidence. Special care and caution should be taken. [5] Judges are required to given special cautions when considering identification evidence.[6] This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.[7]

There is a particular need for caution in cases "that involve fleeting glimpses of unfamiliar persons in stressful circumstances".[8]

Weight put upon eyewitness testimony must vary based on the "circumstances of the individual case".[9]

The accuracy of the eyewitness should not be determined by or be "coextensive" with the confidence or honest of the witness.[10]

The apparent reliability of eyewitness identification can be deceptive and it is often honest and sincere.[11]

Establishing the credibility of an eyewitness is not sufficient to rely on their evidence as fact. It has been acknowledged that there is a "weak link between the confidence level of a witness and the accuracy of that witness".[12]

Eyewitness evidence is in essence a form of opinion evidence that "the basis of which can be very difficult to assess."[13]

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”. [14]

In certain cases evidence from a single eye-witness can be sufficient to establish proof beyond a reasonable doubt.[15]

There is no requirement that an identifying witness be 100% certain. Some equivocation is permitted.[16]

Refusal to Identify the Accused
The judge cannot make a finding that the witnesses withheld identifying the accused due to fear on the basis of demeanor evidence alone.[17]

  1. R v Goran, 2008 ONCA 195 (CanLII), [2008] OJ No. 1069 (ONCA) at para 19
    R v Miaponoose 1996 CanLII 1268 (ONCA), (1996), 30 O.R. (3d) 419 at p.421
    R v Provo, 2001 NSSC 94 (CanLII), [2001] NSJ No. 247 at para 21
    R v Bullock (1999), O.J. 3106(*no link) at paras 49 to 54 per Hill J.
  2. R v Alphonso, 2008 ONCA 238 (CanLII), [2008] O.J. No. 1248, at para 5
    Goran, at paras 26-27
    R v Burke, 1996 CanLII 229, [1996] S.C.J. No. 27, at para 52
  3. R v FA 2004 CanLII 10491 (ONCA) at para 39
  4. R v Quercia 1990 CanLII 2595 (ONCA) at 389 R v Shermetta, [1995] NSJ No. 195 (C.A.), at para 46
  5. e.g., R v Trochym, 2007 SCC 6 (CanLII), [2007] S.C.J. No. 6, at para 46;
    R v Burke, at para 52
    R v Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at 82,
    R v Miaponoose 1996 CanLII 1268 (ON CA), (1996), 110 CCC (3d) 445 (Ont. C.A), at 450-1;
    R v Tat and Long 1997 CanLII 2234 (ON CA), (1997), 117 CCC (3d) 481 (Ont. C.A.), at 516;
    R v F.A., 2004 CanLII 10491 [2004] O.J. No. 1119, at para 39 (C.A.) R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, at pp. 1209-10
    R v Bardales, 1996 CanLII 213 (SCC), [1996] 2 SCR 461, pp. at 461-62
    R v Shermetta at para 46 - judges must use caution, appreciate possibility of mistake and examine circumstances closely
  6. R v Hersi, 2000 CanLII 16911, [2000] O.J. No. 3995 (C.A.) at para 14
    R v Tat 1997 CanLII 2234 (ON CA), (1997), 117 CCC (3d) 481 (Ont. C.A.), at pp. 515-16
  7. R v Turnbull et al (1976), 63 Cr. App. R. 132
    see also:
    R v Sophonov (No.2), 1996 CanLII 104, (1986), 25 CCC (3d) 415 (Man. C.A.)
    R v Shermetta, 1995 CanLII 4193 [1995] NSJ No. 195 (C.A.),
    R v Atwell (1983), 25 Alta. L.R. (2d) 97 (Alta. C.A.)(*no link)
    R v Nikolovski 1996 CanLII 158, (1996), 111 CCC (3d) 403 (S.C.C.)
  8. R v Pelletier, 2012 ONCA 566 (CanLII) at para 90 per Watt JA
    Miaponoose at p. 450 to 251
  9. Pelletier at para 91
    Miaponoose at p. 452
  10. Pelletier at para 92
    R v Izzard (1990), 54 CCC (3d) 252 (ONCA)(*no link) at p. 255
  11. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, at para 50 ("[T]he danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it.”)
  12. R v Hibbert
  13. R v Miaponoose at para 11
  14. R v Goran 2008 ONCA 195 (CanLII) at para 20
    R v Harvey 2001 CanLII 24137 (ON CA), (2001), 160 CCC (3d) 52 (Ont. C.A.), at para 19
  15. see Pelletier v The Queen, 1996 CanLII 143 (SCC), [1996] 3 SCR 601 at 601 per Lamer C.J.C.
    R v Nikolovski at at page 413 per Cory J. ("It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness")
  16. R v Kish, 2014 ONCA 181 (CanLII) at para 53 to 54
  17. R v Legault, 2009 ONCA 86 (CanLII)

Juries

Juries must be instructed to account for the "frailties of eyewitness identification" when considering issues such as:[1]

  • whether the suspect known to the witness?
  • whether the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting?[2]
  • whether the sighting by the witness in circumstances of stress?[3]

Juries must also be "instructed to carefully scrutinize the witnesses’ description of the assailant", considering whether it was "vague" and "generic" or "detailed" with "distinctive features".[4]

The judge should also caution on the limited value of in-court identification.[5]

Eye-witness evidence is dangerous as it has a "power effect on jurors".[6]

  1. R v Jack, 2013 ONCA 80 (CanLII) at para 15, 16
    See also Juries
  2. R v Carpenter, [1998] O.J. No. 1819 (C.A.) at para 1
  3. Nikolovski, at p. 1210
    R v Francis 2002 CanLII 41495 (ON CA), (2002), 165 O.A.C. 131, at 132
  4. Jack at para 16
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No. 361, at paras 5, 8
    R v F.A. 2004 CanLII 10491 (ON CA), (2004), 184 O.A.C. 324, at para 64
    R v Richards, 2004 CanLII 39047 (ON CA), (2004) 70 O.R. (3d) 737, at para 9
    R v Boucher, 2007 ONCA 131 (CanLII), [2007] O.J. No. 722, at para 21
  5. Jack at para 17
    R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, at pp. 468-69
    R v Tebo 2003 CanLII 43106 (ON CA), (2003), 172 O.A.C. 148, at para 19
  6. R v Hanemaayer, 2008 ONCA 580 (CanLII) at para 21

Weighing Identity Evidence

Bald assertions of identity by witnesses should be given little weight. The Court should consider the facts and foundation of the statement including the opportunity and ability to observe. [1]

It has been recommended that cases resting entirely on eyewitness testimony should require the judge to do the following: [2]

  1. recognize the danger of convicting based on eyewitness identification only;
  2. note the significant factors which may have affected the identification; and
  3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."[3]

The fundamental factors affecting the weight of eyewitness evidence are: [4]

  1. opportunity to observe:
    1. light conditions
    2. the distance from the witness to the suspect
    3. the eyesight of the witness
    4. colour perception
  2. previous acquaintance with the accused[5]
  3. focus of attention or distraction
  4. presence or absence of distinctive features or appearance of the suspect/accused[6]
  5. the time since making the observations[7]

Extra caution should be taken where the witnesses had a limited opportunity to observe and the confirmative opportunity occurred while the accused was under arrest.[8]

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in accuracy of observations.[9]

General or generic descriptors alone will be accorded only limited weight as there is "no detail that could distinguish the [culprit] from thousands of other people".[10]

A "fleeting glance" will generally be considered unsatisfactory opportunity to observe.[11]

  1. R v Tatham 2002 MBQB 241 (CanLII), [2002] M. J. No. 370, 167 Man. R. (2d) 152 at 9
    R v Browne and Angus (1951), 99 CCC 141 (BCCA) (*no link)
    R v Harrison (1951), 100 CCC 143 (BCCA) (*no link)
  2. R v Bigsky, 2006 SKCA 145 (CanLII), 217 CCC (3d) 441, at para 70
  3. R v Miaponoose 1996 CanLII 1268 (ON CA)
  4. R v Wilband, 2011 ABPC 298 (CanLII) at para 16
    R v Miaponoose
    Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802 at para 24
    Browne and Angus
    Harrison
    R v Anderson, 2014 BCPC 71 (CanLII) at para 32 - citing McWilliams Canadian Criminal Evidence, 5th edition, at paragraph 32:40:10
    e.g. R v "X" 2013 NSPC 127 (CanLII) at para 76 - in reference to recognition evidence
  5. R v Cachia (1953), 107 CCC 272 (Ont. C.A.) (*no link)
    R v Todish, (1985), 18 CCC (3d) 159 (ONCA) (*no link)
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263
  6. R v Cosgrove (No. 2) (1977), 34 CCC (2d) 100 (Ont. C.A.) (*no link)
    R v Corbett (1973), 111 CCC (2d) 137 (BCCA) (*no link)
    R v Dunlop, Douglas and Sylvester (1976), 33 CCC (2d) 342 (Man. C.A.) (*no link)
  7. R v Louie (1960), 129 CCC 336 (BCCA) (*no link)
  8. R v Hume, 2011 ONCJ 535 (CanLII) at para 14
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.) (*no link)
  9. R v Francis, 2002 CanLII 41495 (ON CA)
  10. R v Foster, 2008 CanLII 8419 (ON SC), at para 40 - generic factors of approximate age and race
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No 361 (C.A.), at para 5, 8
  11. R v Carpenter, [1998] O.J. No. 1819 (C.A.) (*no link) at para 1 per Abella J.A

Line-ups

The key rule in giving a photo line-up is that the procedure is fair.[1]

It was recommended in the Sophonow Inquiry that in order to avoid false identification through line-ups the procedure should include the following:[2]

  • The photo pack should contain at least 10 subjects.
  • The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
  • Everything should be recorded on videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
  • The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
  • The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
  • The photopack should be presented sequentially, not all together.[3]
  • Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.[4]

Identification based on a single photograph rather than a proper lineup goes to weight and not admissibility. [5]

Other factors considered include:

  • evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph. [6]
  • opportunity for the witnesses to see the perpetrator;
  • familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.[7]

The prior familiarity of the witness to the accused is a factor that goes to weight.[8]

A live line-up after completing a photo line-up will add little weight to the witnesses evidence, but is still admissible.[9] When in reverse order the photo line-up is given little weight.[10]

A witness should never be shown a single photo of the accused.[11]

During a live line-up the police should never tell the witness that the suspect is among the line-up.[12]

The accused should not be put in a line-up among those who do not hold a resemblance to him.[13]

Evidence of a live line-up can be excluded where the accused's right to counsel under 10(b) was violated.[14]

The accused's refusal to take part in a lineup is not admissible to establish guilt.[15]

  1. R v Shermetta (1995), 1995 CanLII 4193 (NS CA), 141 N.S.R. (2nd) 186 - leading case on procedure in NS
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.) (*no link)
  2. Justice Peter de Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Entitlement to Compensation at pp. 31-34 (2001))
    see also New Jersey v Larry R Henderson New Jersy Supreme Court -- list of other considerations on a lineup
  3. R v Hanemaayer, 2008 ONCA 580 (CanLII), at para 21
  4. R v MacKenzie, 2003 NSPC 51 (CanLII)
  5. United States v Khuc, 2008 BCCA 425 at paras 31, 32
  6. e.g. R v Smith (1952), 103 CCC 58 (Ont. C.A.)
  7. R v Doyle, 2007 BCCA 587 (CanLII) at paras 10 to 15
    R v Gonsalves 2008 CanLII 17559 (ON SC), (2008), 56 C.R. (6th) 379, [2008] O.J. No. 2711 (Ont. Sup. Ct.), at paras 44, 45 and 53
    R v Le, 2011 MBCA 83 (CanLII), 270 Man. R. (2d) 82, at paras 132 to 135
  8. See R v Cachia (1953), 107 CCC 272 (Ont. C.A.) (*no link)
    R v Todish, (1985), 18 CCC (3d) 159 (Ont. C.A.) (*no link)
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263
    R v Hanemaayer at para 25
  9. R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (ONCA)
  10. R v Jarrett (1975), 12 NSR (2d) 270 (*no link)
  11. Smierciak
    R v Watson, [1944] O.W.N. 258, 81 CCC 212, [1944] 2 D.L.R. 801 (*no link)
  12. R v Armstrong (1959), 125 CCC 56 (BCCA) (*no link)
  13. Armstrong
    R v Atfield, 1983 ABCA 44 (CanLII)
    R v Engel (1981), 9 Man. R. (2d) 279 (C.A.) (*no link)
  14. R v Ross, [1989] 1 SCR 3, 1989 CanLII 134 (SCC)
  15. R v Henry, 2010 BCCA 462 (CanLII)

Video Identification

Where the video evidence is clear and convincing, the trier-of-fact may use it as the sole basis for the identification of the accused as the perpetrator.[1]

Quality of the video should be sufficient "to be able to recognize facial features such as nose, jaw line, and profile".[2]

A witness can testify to the contents of a video establishing identity of the accused without showing the video. It is generally considered akin to actual observations. [3]

Threshold for Video Recognition Evidence
A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.[4]

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video.[5] A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.[6]

  1. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197 at para 23
  2. R v Nilsson, 2011 BCSC 1654 (CanLII) at para 48
  3. Taylor v Chief Constable of Cheshire (1987) 84 Cr. App. R. 191
  4. R v Leaney, 1989 CanLII 28, [1989] 2 SCR 393
  5. R v Leaney 1987 ABCA 206 (CanLII), (1987) 38 CCC 263 Alta. C.A.
  6. R v Briand, 2008 ONCJ 777 (CanLII)

Dock Identification

Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.[1]

For purposes of comparison with the eyewitness' evidence, the judge is permitted to observe the accused in court and draw conclusions from similarities and dissimilarities.[2] A judge is also permitted to refuse to observe dissimilarities in appearance of the accused in court.[3]

  1. F.A., 2004 CanLII 10491 at para 47
    R v Izzard, (1990), 54 CCC (3d) 252 (Ont. C.A.) (*no link) at pp. 255-6
  2. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197
    R v Campbell, 2017 ONCA 65 (CanLII), per van Rensburg JA, at paras 14 and 15
  3. Campbell, ibid. at para 15
    R v Rae, 2013 ONCA 556 (CanLII) at paras 5 to 6

Recognition

Recognition evidence is "merely a form of identification evidence". Accordingly, all of the 'same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence".[1]

The "level of familiarity between the accused nad the witness may serve to enhance reliability of the evidence."[2]

Difference from Identity Evidence
Courts have still generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.[3]

Recognition evidence is "generally considered to be more reliable and to carry more weight than identification evidence."[4]

Recognition is not a distinct category from identification.[5] Rather they are at different points on a spectrum of reliability.[6] The "extent and quality" of the prior encounters is "but one factor to be considered in weighing the witness's evidence" for the purpose of identification.[7]

Threshold to Admit Recognition Evidence ("Leaney Hearing")
In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on:[8]

  1. the length of the prior relationship between the witness and the accused;
  2. the circumstances of the prior relationship between the witness and the accused; and,
  3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

It has been observed that in "most cases" recognition evidence will pass the threshold of admissibility.[9]

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."[10]

Before a person can claim to recognize a person they must establish that they had a prior opportunity to personally observe the accused and become acquaintanced with him.[11]

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"[12]

Recognition evidence is considered more reliable and has more weight than identification evidence.[13]

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.[14]

It is significant whether the acquainted eye-witness had seen the accused shortly before observing the incident.[15]

  1. R v Olliffe, 2015 ONCA 242 (CanLII) at para 39
    R v Campbell, 2017 ONCA 65 (CanLII) at para 10
  2. Olliffe, supra at para 39
    Campbell at para 10
  3. e.g. R v “X”, 2013 NSPC 127 (CanLII) at para 73
  4. R v Bob, 2008 BCCA 485 (CanLII), [2008] BCJ No. 2551 (C.A.), at para 13
  5. R v Smith 2011 BCCA 362 (CanLII)
  6. R v Mclsaac, [1991] BCJ No. 3617 (C.A.) (*no link)
  7. R v Smith, 2011 BCCA 362 (CanLII), [2011] BCJ no. 1655
  8. R v Anderson et al., 2005 BCSC 1346 (CanLII) at paras 20 and 25-26 (S.C.) R v Brown 2006 CanLII 42683 (ON CA), (2006) 215 CCC (3d) 330 (Ont. C.A.)
  9. R v Anderson at para 39 per Smith J.
  10. Anderson at para 25
  11. R v P.T.C., 2000 BCSC 342 (CanLII) at para 22, 67
  12. R v Smith 2011 BCCA 362 (CanLII)
  13. R v Bob (C.C.), 2008 BCCA 485 (CanLII), 263 BCAC 42 at para 13 ("While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence.")
    R v Aburto (M.E.), 2008 BCCA 78 (CanLII) at para 22
    R v Affleck (A.), 2007 MBQB 107 (CanLII)
    R v R.R.I., 2012 MBQB 59 (CanLII)
  14. R v Rybak 2008 ONCA 354 (CanLII) at para 121
  15. R v O.R.B., [2005] S.J. No. 794 (C.A.) (*no link) at para 14
    see also R v "X" at para 98