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Evidence - Identification

. R. v. Graham

In R. v. Graham (Ont CA, 2023) the Court of Appeal considered eyewitness identification evidence:
(a) Identification evidence

[11] Because of the potential unreliability of eyewitness identification evidence, identification findings are subject to closer appellate scrutiny than other findings: R. v. Hersi (2000), 2000 CanLII 16911 (ON CA), 137 O.A.C. 60, at para. 14; R. v. Tat (1997) 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, at paras. 99-100 R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 20. However, I see no basis here for appellate intervention.
. R. v. Graham

In R. v. Graham (Ont CA, 2023) the Court of Appeal considered photo line-up vulnerabilities:
[15] Drawing on R. v. Phillips, 2018 ONCA 651, 364 C.C.C. (3d) 220, the appellant argues that the trial judge relied too heavily on the fact that Stammis recognized the appellant as Jordan and therefore failed to meaningfully address whether the photo line-up was fatally contaminated because she had seen the appellant’s photograph in the media coverage of the offences prior to seeing the photo line-up.

[16] I disagree with these submissions.

[17] Phillips does not stand for the proposition that recognition evidence is automatically worthless if a witness has seen a photograph of the accused prior to examining a photo line-up. The assessment of the reliability of identification evidence must turn on its facts. And Phillips is distinguishable on its facts: the photo line-up witness was an unsavoury individual who seemed to have little familiarity with the masked person he addressed as “Virus”; and there were problems with the photo line-up that went beyond the witness looking at a photograph of the accused. Based on the specific circumstances, this court held that the jury charge inadequately addressed the problems with the photo line-up and ordered a new trial.

[18] Unlike in Phillips, Stammis knew the appellant and had had numerous interactions with him. In addition, when the shooting occurred, the appellant was at her residence, as he often was. The trial judge appropriately recognized the potential issues with the photo line-up and incorporated them into his assessment of the weight to be given to the identification evidence. By taking these issues into account, the trial judge showed his appreciation that recognition evidence is still a form of identification evidence and that the need for caution does not go away when the witness identifying the accused knows the accused. However, the trial judge was entitled to take into account, as he did, Stammis’ familiarity with the appellant in assessing the reliability of her identification of the appellant. Stammis’ substantial familiarity with the appellant because of their numerous interactions served to enhance the reliability of her evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 38-39. Accordingly, unlike in Phillips, it was appropriate for the trial judge to accept and rely on Stammis’ recognition evidence.
. R. v. Mohamed

In R. v. Mohamed (Ont CA, 2023) the Court of Appeal locates 'recognition evidence' within the larger category of identification evidence:
[83] ... Finally, this court has made clear that recognition evidence is a form of identification evidence, and “the usual dangers of eyewitness identification exist in a case of alleged recognition”: R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 30, 32.
. R. v. Farah

In R. v. Farah (Ont CA, 2022) the Court of Appeal considers identification evidence:
[14] As this court held in R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, and R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 30-32, with respect to the threshold requirement for admissibility of identification evidence, the focus is on the level of familiarity the witness has with the person to be identified, to be assessed by considering the nature of the relationship, which includes the frequency and intensity of past interactions. The case law flowing from R. v. Leaney has been developed in the context of identification of an accused, rather than third parties. In the appellant’s case, Det. Cst. Hockaday identified third parties who were not called as witnesses, and so were not available to the trier of fact to make its own determination of whether the individuals bore a resemblance to the images in the photos.
. R. v. Longshaw

In R. v. Longshaw (Ont CA, 2022) the Court of Appeal considered the judicial treatment of eyewitness identification evidence:
[17] In cases involving eyewitness identification evidence, the trial judge must consider the eyewitness testimony in its entirety, mindful of its inherent frailties. These frailties arise most acutely in cases where eyewitnesses have only a fleeting opportunity to observe an unfamiliar person in a stressful circumstance: R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 90, 95. In order to determine whether the appellant’s guilt was proven beyond a reasonable doubt, the trial judge was required to consider the eyewitness testimony in the context of the evidence as a whole: Pelletier, at para. 95. ....
. R. v. Panovski

In R. v. Panovski (Ont CA, 2021) the Court of Appeal characterized the nature of recognition evidence:
[109] It is important to appreciate that recognition evidence is non-expert lay opinion evidence: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 13. It reflects that, at the time and in the circumstances in question, the witness formed the subjective conclusion that the person or image that they observed was the individual identified. Evidence of non-recognition, reflecting a witness’s conclusion that they do not believe they know the subject, is also non-expert lay opinion evidence based on a subjective appraisal made in the relevant circumstances. There may be much to be said for the view that one witness’s subjective opinion is of no relevance in demonstrating the reliability of the subjective opinion of another witness.
. R. v. Leduc

In R. v. Leduc (Ont CA, 2021) the Court of Appeal considered similar fact evidence to prove identification in a criminal case:
[11] When similar act evidence is used to prove identity, the law insists upon a particularly high degree of similarity between the acts, one that makes it “likely that they were committed by the same person”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 50. The required degree of similarity has been described differently over the years, including that the acts are “strikingly similar” in nature: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 89, 98. Where the purportedly similar acts meet that standard, “the possibility that the accused would repeatedly be implicated … purely as a matter of coincidence is greatly reduced”: Arp, at para. 43.
. R. v. Olliffe

In R. v. Olliffe (Ont CA, 2015) the Court of Appeal commented as follows on reliability issues relating to eyewitness identification:
[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.

[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. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195 (CanLII), at para. 33.

[38] Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.

[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. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.

[40] In the context of jury trials, courts in this province have consistently ruled that the jury must be warned of the frailties of eyewitness identification even in cases of recognition evidence: R. v. Curran, 2004 CanLII 10434 (ON CA), 2004 CanLII 10434 (Ont. C.A.), at para. 26; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.), at pp. 150-151; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 42.
. R v M.B.

In the criminal case of R v M.B. (Ont CA, 2017), the Court of Appeal comments usefully on the reliability and use of eyewitness evidence, particularly respecting recognition of individuals:
(a) Frailty of eyewitness identification

[29] Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person. See R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451, and R. v. A. (F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39.

[30] For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than other findings of fact. Justice Doherty summarized this approach in the context of an unreasonable verdict argument in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras. 99-100, where he said:
While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness.
[31] As stated by Charron J.A. (as she then was) in Miaponoose, at p. 422: “Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness' opinion when she says ‘that is the man’ is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists.” Justice Charron goes on to quote from the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10:
Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification. [Emphasis added.]
Justice Charron continues: “While the circumstances surrounding the witness' identification can be subject to scrutiny in cross-examination, many of the more subjective processes that have led to it are impossible to expose in this fashion.”

[32] Witness identification based on video recordings can under certain circumstances be more reliable as it allows repeated and unhurried consideration. For example, R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 23, contemplates a videotape of “sufficient clarity and quality” that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused:
It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. 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. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape. [Emphasis added.]
The kind of clear video recording described in Nikolovski, however, sharply contrasts with the video recording in this case. The trier of fact must use greater caution where the video or photo quality is poor: R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.

(b) Recognition evidence as a subset of eyewitness identification

[33] Recognition evidence is a subset of eyewitness identification evidence, in which the eyewitness’ identification is based on prior acquaintance. The recognition witness may, or as in this case may not, have been present at the scene of the crime.

[34] Hourigan J.A. stated in Olliffe at para. 39, “recognition evidence is merely a form of identification evidence”. As such, “[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.”

[35] The test for admitting recognition evidence is established in the Supreme Court of Canada’s decision in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393 and re-affirmed by Rosenberg J.A. in R. v. Brown, 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.). At para. 39 of Brown, Rosenberg J.A. stated that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator".

[36] In Berhe, this court considered the proposition that a recognition witness must be able to point to idiosyncrasies of physical appearance or movement peculiar to the person identified in order for his or her opinion to satisfy threshold admissibility. The proposition was asserted by Harradence J.A. in his dissent in Leaney, 1987 ABCA 206 (CanLII), 38 C.C.C. (3d) 263, at para. 40:
Notwithstanding this general principle of exclusion, there may be occasions when non-expert opinion evidence will be relevant and admissible. Where a witness is so familiar with the accused that he can identify idiosyncrasies of physical appearance or movement, not apparent to the trier of fact in the courtroom, that witness should be able to give his opinion. Two criteria must be satisfied. First the witness must be sufficiently familiar with the accused so as to be aware of the unique features which form the basis of the opinion. Second, the witness must be able to state with particularity what the idiosyncrasies are and show where and how they are revealed on the videotape. In this way the witness is contributing knowledge not otherwise available to the trier of fact. Consideration of these issues should take place within the context of a voir dire so the accused can challenge the evidence before it is admitted.
[37] This court rejected the proposition as a requirement for threshold admissibility. The court in Berhe instead held at para. 22 that the identification of idiosyncrasies of physical appearance or movement were relevant when considering the ultimate reliability of the evidence. I will expand further on this below.


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