Eyewitness Identification

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2022. (Rev. # 96531)

General Principles

Eyewitness evidence refers to testimony of a witness concerning their direct observations of a person whose identity is at issue.

The ability to testify as to identity is specifically permitted under the Canada Evidence Act:

Identification of accused

6.1 For greater certainty, a witness may give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner.

1998, c. 9, s. 1

– CEA (CanLII), (DOJ)

Note up: 6.1

What is generally considered "eyewitness" evidence comes in two forms. There is basic "eyewitness identification evidence" given by a person who has no personal acquaintance with the person being identified and then there is "recognition evidence" in which the witness has some prior familiarity with the person.

Unreliability of All Eyewitness Evidence

Courts are very cautious and "weary" of eyewitness identification evidence as it is considered "inherently" and "notoriously" unreliable.[1] The trier of fact must take the frailties into consideration when looking at whether the accused was known to the witness, the circumstances of the identification, and the level of detail of the identification.[2]

Honest but Mistaken ID

The focus of the concern is not on credibility, rather is on reliability and risk of assigning undue weight to the evidence.[3] It is essential that courts recognize the risk of honest but mistaken beliefs of an eyewitness.[4] 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”[5] Even honest and convincing witnesses may misidentify individuals.[6] A viewing of only a single image can have the effect of stamping the face of the accused on the memory of the true perpetrator. It is highly suggestable and contaminates identification.[7]

Consequently, identification evidence is treated differently than other evidence. Special care and caution should be taken. [8]

Special Caution Required

Judges are required to given special cautions when considering identification evidence.[9] This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.[10]

There is a particular need for caution in cases "that involve fleeting glimpses of unfamiliar persons in stressful circumstances."[11]

Weight Depends on Circumstances

Weight put upon eyewitness testimony must vary based on the "circumstances of the individual case."[12]

The accuracy of the eyewitness should not be determined by or be "coextensive" with the confidence or honesty of the witness.[13]

The apparent reliability of eyewitness identification can be deceptive, and it is often honest and sincere.[14]

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."[15]

Eyewitness evidence is, in essence, a form of opinion evidence that "the basis of which can be very difficult to assess."[16]

Standard of Appellate Review

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”. [17]

In certain cases, evidence from a single eye-witness can be sufficient to establish proof beyond a reasonable doubt.[18]

There is no requirement that an identifying witness be 100% certain. Some equivocation is permitted.[19]

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 demeanour evidence alone.[20]

  1. ↑ R v Goran, 2008 ONCA 195 (CanLII), [2008] OJ No 1069 (ONCA), per Blair JA, at para 19
    R v Miaponoose, 1996 CanLII 1268, (1996), 30 OR (3d) 419, per Charron JA, at p. 421
    R v Provo, 2001 NSSC 94 (CanLII), [2001] NSJ No 247, per MacDonald ACJ, at para 21
    R v Bullock (1999), O.J. 3106(*no CanLII links) , per Hill J, at paras 49 to 54
    R v Gough, 2013 ONCA 137 (CanLII), OJ No 973, per curiam, at paras 35 to 37 ("Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact…It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification...")
  2. ↑ Gough, supra, at paras 36 to 37 ("The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful… As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance. ")
    R v Olliffe, 2015 ONCA 242 (CanLII), 322 CCC (3d) 501, per Hourigan JA, at para 36 ("The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.")
  3. ↑ Olliffe, supra, at para 37 ("The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence.")
  4. ↑ R v Alphonso, 2008 ONCA 238 (CanLII), [2008] OJ No 1248, per curiam, at para 5
    Goran, supra, at paras 26 to 27, and 33
    R v Burke, 1996 CanLII 229, [1996] SCJ No 27, per Sopinka J, at para 52
    R v Quercia, 1990 CanLII 2595 (ON CA), 60 CCC (3d) 380, per Doherty JA at 465 (OR)
  5. ↑ R v FA, 2004 CanLII 10491 (ON CA), 183 CCC (3d) 518, per Cronk JA, at para 39
    R v MB, 2017 ONCA 653 (CanLII), 356 CCC (3d) 234, per Juriansz JA, at para 29
  6. ↑ R v Quercia, 1990 CanLII 2595 (ON CA), 60 CCC (3d) 380, per Doherty JA at 389 (CCC) R v Shermetta, 1995 CanLII 4193 (NS CA), [1995] NSJ No 195 (CA), per Roscoe JA, at para 46
  7. ↑ R v Bao, 2019 ONCA 458 (CanLII), 146 OR (3d) 225, per Trotter JA, at para 27("The danger is that the witness may have the photo image stamped on his or her mind, rather than the face of the true perpetrator ... Presenting a single photograph is highly suggestible and contaminates the identification process in a manner that prejudices the accused person") see Rex v Goldhar; Rex v Smokler, 1941 CanLII 311 (ON CA), 76 CCC 270, per Robertson CJ, at p. 271
  8. ↑ e.g., R v Trochym, 2007 SCC 6 (CanLII), [2007] SCJ No 6, per Deschamps J, at para 46
    Burke, supra, at para 52
    R v Spatola, 1970 CanLII 390 (ON CA), [1970] 3 OR 74 (CA), per Laskin JA at 82
    Miaponoose, supra, at pp. 450-1
    R v Tat and Long, 1997 CanLII 2234 (ON CA), 117 CCC (3d) 481, per Doherty JA, at p. 516
    R v FA, 2004 CanLII 10491, [2004] OJ No 1119, per Cronk JA, at para 39
    R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2), at pp. 1209-10
    R v Bardales, 1996 CanLII 213 (SCC), [1996] 2 SCR 461, per Sopinka J (5:0), at pp. 461-62
    Shermetta, supra, at para 46 - judges must use caution, appreciate possibility of mistake and examine circumstances closely
  9. ↑ R v Hersi, 2000 CanLII 16911, [2000] OJ No 3995 (CA), per Sharpe JA, at para 14
    Tat, supra, at pp. 515-16
  10. ↑ R v Turnbull et al (1976), 63 Cr. App. R. 132 (UK)
    see also:
    R v Sophonov (No.2), 1996 CanLII 104, 25 CCC (3d) 415, per Twaddle JA
    Shermetta, supra
    R v Atwell (1983), 25 Alta LR (2d) 97 (Alta. C.A.)(*no CanLII links)
    Nikolovski, supra
  11. ↑ R v Pelletier, 2012 ONCA 566 (CanLII), 291 CCC (3d) 279, per Watt JA, at para 90
    Miaponoose, supra, at pp. 450 to 251
  12. ↑ Pelletier, supra, at para 91
    Miaponoose, supra, at p. 452
  13. ↑ Pelletier, supra, at para 92
    R v Izzard, 1990 CanLII 11055 (ON CA), 54 CCC (3d) 252, per Morden JA, at p. 255
  14. ↑ R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, 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.”)
  15. ↑ Hibbert, ibid.
  16. ↑ Miaponoose, supra, at para 11
  17. ↑ R v Goran, 2008 ONCA 195 (CanLII), 100 WCB (2d) 41, per Blair JA, at para 20
    R v Harvey, 2001 CanLII 24137 (ON CA), 160 CCC (3d) 52, per Doherty JA (2:1), at para 19
  18. ↑ see Pelletier v The Queen, 1996 CanLII 143 (SCC), [1996] 3 SCR 601, per Lamer CJ at 601
    Nikolovski, supra, at p. 413 ("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")
  19. ↑ R v Kish, 2014 ONCA 181 (CanLII), 309 CCC (3d) 101, per MacFarland JA, at paras 53 to 54
  20. ↑ R v Legault, 2009 ONCA 86 (CanLII), per curiam

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]

A warning should be given to juries for all types of eyewitness evidence, even when it is recognition evidence.[7]

  1. ↑ R v Jack, 2013 ONCA 80 (CanLII), 294 CCC (3d) 163, per Epstein JA (3:0), at paras 15 to 16
    See also Juries
  2. ↑ R v Carpenter, [1998] OJ No 1819 (CA)(*no CanLII links) , at para 1
  3. ↑ R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2), at p. 1210
    R v Francis, 2002 CanLII 41495 (ON CA), OAC 131, per curiam, at 132
  4. ↑ Jack, supra, at para 16
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] OJ No 361, per curiam, at paras 5, 8
    R v FA, 2004 CanLII 10491 (ON CA), OAC 324, per Cronk JA, at para 64
    R v Richards, 2004 CanLII 39047 (ON CA), (2004) 70 OR (3d) 737, per McCombs J, at para 9
    R v Boucher, 2007 ONCA 131 (CanLII), [2007] OJ No 722, per curiam, at para 21
  5. ↑ Jack, supra, at para 17
    R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at pp. 468-69
    R v Tebo, 2003 CanLII 43106 (ON CA), OAC 148, per Feldman JA, at para 19
  6. ↑ R v Hanemaayer, 2008 ONCA 580 (CanLII), 234 CCC (3d) 3, per Rosenberg JA, at para 21
  7. ↑ Olliffe, supra at para 40
    R v Curran, 2004 CanLII 10434 (ON CA), 62 WCB (2d) 283, per MacPherson JA, at para 26
    R v Miller, 1998 CanLII 5115 (ON CA), 131 CCC (3d) 141, per Charron JA at pp. 150-151
    R v Brown, 2006 CanLII 42683 (ON CA), 215 CCC (3d) 330, per Rosenberg JA, at para 42

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]

One or more courts have 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 the 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]

Cross-Racial ID

It has been suggested that "cross-racial" identification evidence has a higher chance of being incorrect and so is even more challenging.[12]

  1. ↑ R v Tatham, 2002 MBQB 241 (CanLII), [2002] M. J. No 370, 167 Man. R. (2d) 152, per Schurfield J at 9
    R v Browne and Angus, 1951 CanLII 393 (BC CA), 99 CCC 141 (BCCA), per O'Halloran JA
    R v Harrison, 1951 CanLII 403 (BC CA), 100 CCC 143 (BCCA), per O'Halloran JA
  2. ↑ R v Bigsky, 2006 SKCA 145 (CanLII), 217 CCC (3d) 441, per Jackson JA, at para 70
  3. ↑ R v Miaponoose, 1996 CanLII 1268 (ON CA), 110 CCC (3d) 445, per Charron JA
  4. ↑ R v Wilband, 2011 ABPC 298 (CanLII), 514 AR 370, per Fraser J, at para 16
    Miaponoose, supra
    Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, per McIntyre J, at para 24
    Browne and Angus
    Harrison
    R v Anderson, 2014 BCPC 71 (CanLII), per Skilnick J, at para 32 - citing McWilliams Canadian Criminal Evidence, 5th edition, at paragraph 32:40:10
    e.g. R v "X", 2013 NSPC 127 (CanLII), per Derrick J, at para 76 - in reference to recognition evidence
  5. ↑ R v Cachia, 1953 CanLII 455 (ON CA), 107 CCC 272, per Pickup CJ
    R v Todish, 1985 CanLII 3586 (ON CA), 18 CCC (3d) 159, per Martin JA
    R v Leaney, 1987 ABCA 206 (CanLII), 38 CCC (3d) 263, per Dea J
  6. ↑ R v Cosgrove (No. 2), 1977 CanLII 2085 (ON CA), 34 CCC (2d) 100, per Brooke JA
    R v Corbett, 1973 CanLII 1368 (BC CA), 11 CCC (2d) 137 (BCCA), per Branca JA
    R v Dunlop, 1976 CanLII 1415 (MB CA), Douglas and Sylvester (1976), 33 CCC (2d) 342, per O'Sullivan JA (2:1)
  7. ↑ R v Louie, 1960 CanLII 463 (BC CA), 129 CCC 336 (BCCA), per Coady JA
  8. ↑ R v Hume, 2011 ONCJ 535 (CanLII), per M Green J, at para 14
    R v Smierciak, 1946 CanLII 331 (ON CA), 87 CCC 175, per Laidlaw JA
  9. ↑ R v Francis, 2002 CanLII 41495 (ON CA), 165 OAC 131, per curiam
  10. ↑ R v Foster, 2008 CanLII 8419 (ON SC), per Hill J, at para 40 - generic factors of approximate age and race
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] OJ No 361 (CA), per curiam, at paras 5, 8
  11. ↑ R v Carpenter, [1998] OJ No 1819 (CA) (*no CanLII links) , per Abella JA, at para 1
  12. ↑ R v Bao, 2019 ONCA 458 (CanLII), 146 OR (3d) 225, per Trotter JA

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 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]

Generally, improper procedure taints identification evidence, it does not render the evidence inadmissible, it only goes to weight.[5]

Identification based on a single photograph rather than a proper lineup goes to weight and not admissibility. [6]

Other factors considered include:

  • evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph. [7]
  • 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.[8]

The prior familiarity of the witness to the accused is a factor that goes to weight.[9]

A live line-up after completing a photo line-up will add little weight to the witnesses evidence, but is still admissible.[10] When in reverse order the photo line-up is given little weight.[11]

A witness should never be shown a single photo of the accused.[12]

During a live line-up the police should never tell the witness that the suspect is among the line-up.[13]

The accused should not be put in a line-up among those who do not hold a resemblance to him.[14]

Evidence of a live line-up can be excluded where the accused's right to counsel under 10(b) was violated.[15]

The accused's refusal to take part in a lineup is not admissible to establish guilt.[16]

There is a weak link between a witnesses confidence and a witnesses accuracy in identifying a culprit.[17]

Line-ups of One

It is not appropriate for police to engage in the practice of presenting a newly arrested accused before the witness and then seeking confirmation from the person.[18]

  1. ↑ R v Shermetta, 1995 CanLII 4193 (NS CA), 141 NSR (2nd) 186, per Roscoe JA - leading case on procedure in NS
    R v Smierciak, 1946 CanLII 331 (ON CA), 87 CCC 175, per Laidlaw JA
  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), 234 CCC (3d) 3, per Rosenberg JA, at para 21
  4. ↑ R v MacKenzie, 2003 NSPC 51 (CanLII), 692 APR 1, per CHF Williams J
  5. ↑ Gonsalves, supra, at para 46
  6. ↑ United States v Khuc, 2008 BCCA 425 (CanLII), 262 BCAC 4, per Chiasson JA, at paras 31 to 32
  7. ↑ e.g. R v Smith, 1952 CanLII 116 (ON CA), 103 CCC 58, per MacKay JA
  8. ↑ R v Doyle, 2007 BCCA 587 (CanLII), 248 BCAC 307, per Hall JA, at paras 10 to 15
    R v Gonsalves, 2008 CanLII 17559 (ON SC), CR (6th) 379, [2008] OJ No 2711 (Ont. Sup. Ct.), per Hill J, at paras 44 to 45 and 53
    R v Le, 2011 MBCA 83 (CanLII), 270 Man. R. (2d) 82, per Scott CJ, at paras 132 to 135
  9. ↑ See R v Cachia, 1953 CanLII 455 (ON CA), 107 CCC 272, per Pickup CJ
    R v Todish, 1985 CanLII 3586 (ON CA), 18 CCC (3d) 159, per Martin JA
    R v Leaney, 1987 ABCA 206 (CanLII), 38 CCC (3d) 263, per Dea JA
    Hanemaayer, supra, at para 25
  10. ↑ R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (ONCA), per Jessup JA
  11. ↑ R v Jarrett, 1975 CanLII 1401 (NS CA), (1975), 12 NSR (2d) 270, per MacDonald JA
  12. ↑ Smierciak
    R v Watson, 1944 CanLII 340 (ON CA), [1944] O.W.N. 258, 81 CCC 212, [1944] 2 DLR 801, per Robertson CJ
  13. ↑ R v Armstrong, 1959 CanLII 456 (BC CA), 125 CCC 56 (BCCA), per DesBrisay CJ
  14. ↑ Armstrong
    R v Atfield, 1983 ABCA 44 (CanLII), 9 WCB 300, per Belzil JA
    R v Engel (1981), 9 Man. R. (2d) 279 (CA) (*no CanLII links)
  15. ↑ R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  16. ↑ R v Henry, 2010 BCCA 462 (CanLII), 294 BCAC 96, per Low JA
  17. ↑ R v Hebbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at para 52
  18. ↑ R v Canning, 1986 CanLII 4295 (SCC), [1986] SCJ No 37, per curiam rev’g (1984), 65 NSR (2d) 326 (CA)
    R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152, per Jessup JA
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
    R v Zurowski, 2004 SCC 72 (CanLII), [2004] 3 SCR 509, per McLachlin CJ
    R v Dhillon, 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262, per Laskin and Goudge JA
    R v Quercia, 1990 CanLII 2595 (ON CA), 60 CCC (3d) 380, per Doherty JA
    R v Mezzo, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, per McIntyre J and Wilson J
    R v Biddle, 1993 CanLII 8506 (ON CA), 84 CCC (3d) 430, per Doherty JA

Video Identification

Video recording identification can be more reliable than testimony as it permits "repeated and unhurried consideration."[1]

Where the video evidence is clear and convincing, the trier-of-fact may use it as the sole basis for identifying the accused as the perpetrator.[2]

The quality of the video should be sufficient "to be able to recognize facial features such as nose, jaw line, and profile."[3]

A witness can testify to the contents of a video, establishing the identity of the accused without showing the video. It is generally considered akin to actual observations. [4]

There must be caution exercised when the video quality is poor.[5]

Threshold for Video Recognition Evidence

A person who is not familiar with the appearance of the accused cannot testify on the identification of the accused in a video.[6]

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.[7] 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.[8]

  1. ↑ R v MB, 2017 ONCA 653 (CanLII), 356 CCC (3d) 234, per Juriansz JA, at para 32
  2. ↑ R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J, at para 23
  3. ↑ R v Nilsson, 2011 BCSC 1654 (CanLII), per Walker J, at para 48
  4. ↑ Taylor v Chief Constable of Cheshire (1987) 84 Cr. App. R. 191 (UK)
  5. ↑ R v Cuming, 2001 CanLII 24118 (ON CA), 158 CCC (3d) 433, per Charron JA, at para 19
  6. ↑ R v Leaney, 1989 CanLII 28 (SCC), [1989] 2 SCR 393, per McLachlin J
  7. ↑ R v Leaney, 1987 ABCA 206 (CanLII), 38 CCC 263 (ABCA), per Dea J (2:1)
  8. ↑ R v Briand, 2008 ONCJ 777 (CanLII), per Green J

In-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]

It is a long-held myth that in-dock identification by the arresting officer of the accused in court is an essential part of the process.[2]

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.[3] A judge is also permitted to refuse to observe dissimilarities in appearance of the accused in court.[4]

  1. ↑ R v FA, 2004 CanLII 10491 (ON CA), 183 CCC (3d) 518, per Cronk JA, at para 47
    R v Izzard, 1990 CanLII 11055 (ON CA), 54 CCC (3d) 252, per Morden JA, at pp. 255-6
    R v Zurowski, 2004 SCC 72 (CanLII), [2004] 3 SCR 509, per McLachlin CJ
    R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at para 50 ("...I think it is important to remember that the 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. ...")
    R v Sykes, 2014 NSSC 320 (CanLII), per MacAdam J, at paras 43 to 60
    R v Martin, 2007 NSCA 121 (CanLII), 835 APR 70, per Oland JA, at para 18
  2. ↑ R v Nicholson, 1984 ABCA 88 (CanLII), 12 CCC (3d) 228, per Kerans JA, at para 4 ("The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral part of the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dock identification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proved in many different ways.")
  3. ↑ R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2)
    R v Campbell, 2017 ONCA 65 (CanLII), OJ No 380, per curiam, at paras 14 and 15
  4. ↑ Campbell, ibid., at para 15
    R v Rae, 2013 ONCA 556 (CanLII), per curiam, at paras 5 to 6

Accused Revealing Parts of Their Body

The trial judge has discretion to order an accused to show parts of their body to the trier of fact.[1]

There is support suggesting that making such an order does not violate s. 11(c) of the Charter that protects a person from being compelled to testify against themselves.[2]

A judge may refuse to order the accused to reveal a part of their body where it is not part of the "normal expectations" of an accused appearing in court.[3]

Judges have ordered the accused to remove a mask[4] and show their teeth[5] for the purpose of in-dock identification.

  1. ↑ R v Stephens, 2021 ABQB 246 (CanLII), per Mah J, at para 17
  2. ↑ R v Whitford, 2005 BCPC 191 (CanLII), per Milne J, at para 8
  3. ↑ R v Ermineskin, 2020 ABPC 40 (CanLII), per DePoe J, at para 31
  4. ↑ Stephens, supra, at para 17
  5. ↑ R v Whitford, 2005 BCPC 191 (CanLII), per Milne J

Recognition

Evidence identifying complete strangers can be distinguished from evidence of recognition based on the "timeline of the identification narrative."[1] That being said. 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."[2] This includes all the relevant cautions regarding the frailties of identification.[3]

Recognition evidence is admissible as "non-expert" evidence where the "witness has a prior acquaintance with the accused" and so is in a better position than the trier of fact to identify the culprit.[4]

The "level of familiarity between the accused and the witness may serve to enhance reliability of the evidence."[5]

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.[6]

Recognition evidence is "generally considered to be more reliable and to carry more weight than identification evidence."[7]

Recognition is not a distinct category from identification.[8] Rather they are at different points on a spectrum of reliability.[9] 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.[10]

  1. ↑ R v Brown, 2006 CanLII 42683 (ON CA), per Rosenberg JA
  2. ↑ R v Olliffe, 2015 ONCA 242 (CanLII), 322 CCC (3d) 501, per Hourigan JA, at para 39 ("The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence")
    R v Campbell, 2017 ONCA 65 (CanLII), [2017] OJ No 380, per curiam, at para 10
    R v Spatola, 1970 CanLII 390 (ON CA), 3 OR 74, 4 CCC 241, per Laskin JA, at p. 82
    Turnbull , [1977] Q.B. 224 (Eng. C.A.) (UK), at pp. 228-229
  3. ↑ R v Curran, 2004 CanLII 10434 (Ont. C.A.), 62 WCB (2d) 283, per MacPherson JA, at para 26
    R v Miller, 1998 CanLII 5115 (ON CA), 131 CCC (3d) 141, per Charron JA, at pp. 150-151
    R v Brown, 2006 CanLII 42683 (ON CA), 215 CCC (3d) 330, per Rosenberg JA, , at para 42
  4. ↑ R v MB, 2017 ONCA 653 (CanLII), 356 CCC (3d) 234, per Juriansz JA, at para 35
  5. ↑ Olliffe, supra, at para 39
    Campbell, supra, at para 10
  6. ↑ e.g. R v "X", 2013 NSPC 127 (CanLII), per Derrick J, at para 73
  7. ↑ R v Bob, 2008 BCCA 485 (CanLII), [2008] BCJ No 2551 (CA), per Neilson JA, at para 13
  8. ↑ R v Smith, 2011 BCCA 362 (CanLII), 310 BCAC 177, per Neilson JA
  9. ↑ R v Mclsaac, [1991] BCJ No 3617 (CA) (*no CanLII links)
  10. ↑ R v Smith, 2011 BCCA 362 (CanLII), [2011] BCJ no. 1655, per Neilson JA

Threshold to Admit Recognition Evidence ("Leaney Hearing")

A "Leaney hearing" is needed to determine whether the Crown can adduce police officer's recognition evidence of an accused. The essential requirement is that the officer be in a better position than the trier-of-fact to determine identity.[1]

In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity, which depends on:[2]

  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.[3]

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."[4]

Before a person can claim to recognize a person they must establish that they had a prior opportunity to observe personally the accused and become acquaintanced with him.[5]

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"[6]

Recognition evidence is considered more reliable and has more weight than identification evidence.[7]

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.[8]

The witness can rely on recognizable features, including age, hairstyle, body shape, body size, gender, skin colour, and overall appearance.[9]

It is significant whether the acquainted eye-witness had seen the accused shortly before observing the incident.[10]

No Lineup Needed

Where the witness asserts a prior familiarity with the culprit, it is not necessary for the police to conduct a full line-up array for the purpose of confirming the identity of the accused through a photo.[11]

  1. ↑ R v Farah, 2022 ONCA 243 (CanLII), per Brown JA, at para 6
  2. ↑ R v Anderson et al., 2005 BCSC 1346 (CanLII), [2005] BCJ No 3053, per Smith J, at paras 20 and 25 to 26 (S.C.) R v Brown, 2006 CanLII 42683 (ON CA), 215 CCC (3d) 330, per Rosenberg JA
    R v Berhe, 2012 ONCA 716 (CanLII), 113 O.R. (3d) 137
    R v Hudson, 2020 ONCA 507 (CanLII), 391 CCC (3d) 208, per Tulloch JA, at para 30
    Farah, supra, at para 14
  3. ↑ Anderson, supra, at para 39
  4. ↑ Anderson, supra, at para 25
  5. ↑ R v PTC, 2000 BCSC 342 (CanLII), BCJ No 446, per Hood J, at paras 22, 67
  6. ↑ R v Smith, 2011 BCCA 362 (CanLII), 310 BCAC 177, per Neilson JA
  7. ↑ R v Bob (C.C.), 2008 BCCA 485 (CanLII), 263 BCAC 42, per Neilson JA, 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), per Finch CJ, at para 22
    R v Affleck (A.), 2007 MBQB 107 (CanLII), 223 Man R (2d) 1, per Simonsen J
    R v RRI, 2012 MBQB 59 (CanLII), 227 Man R (2d) 139, per McCawley J
  8. ↑ R v Rybak, 2008 ONCA 354 (CanLII), 233 CCC (3d) 58, per Watt JA, at para 121
  9. ↑ R v Donnally, 2022 ABQB 207 (CanLII), per Leonard J, at para 29
  10. ↑ R v ORB, [2005] S.J. No 794 (CA)(*no CanLII links) , at para 14
    see also "X", supra, at para 98
  11. ↑ R v Jimaleh, 2018 ONCA 841 (CanLII), per curiam
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