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Evidence - Identification (2). R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considers eye-witness identification evidence, here that of a stranger:[173] Stranger identification evidence carries with it well-known risks in terms of reliability and danger of wrongful convictions: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 184-86; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 51; R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 31; R. v. M.B., 2017 ONCA 653, at paras. 29-31; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at pp. 421-22; Tat, at paras. 99-100; The Hon. Peter de C. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) (the “Sophonow Inquiry”), at pp. 31-34.
[174] Particular dangers that may cause concern for reliability of identification evidence include: inability of the witness to provide a description of the person; lack of distinctive features of the person; the conditions under which the observations are made, such as lighting, distance; factors affecting the ability of the witness to perceive, such as a need for glasses, intoxication; and, a short time to observe: Miaponoose, at p. 424. In addition, identification procedures employed by police can impact the reliability of identification evidence, which I discuss further below.
[175] While not all of the risks of reliability discussed in the case law are present in this case (indeed, it is rare that all of the risks are present in a particular case), many are – inability to provide a description with any level of detail, intoxication at the time of observation, not wearing glasses. I acknowledge that concerns about reliability of eyewitness identification evidence can usually be addressed by a strong caution to a jury. Reliability issues in relation to identification evidence will not always impact the reliability of a verdict. But in this case, they form the starting point from which improper identification procedures were employed that fundamentally undermined the reliability of Mr. Poyser’s evidence identifying Mr. Ali-Nur as Cron Dog.
[176] The initial frailties of Mr. Poyser’s evidence were significantly compounded by the suggestive identification procedures used by police and reinforced during Mr. Poyser’s guilty plea and during the trial. Mr. Poyser had not previously met Cron Dog before the afternoon/evening of the murder. How the identification procedures were conducted mattered. But rather that conduct a photo line-up, the police chose to show Mr. Poyser a single photo of Mr. Ali-Nur in circumstances which clearly suggested to Mr. Poyser that it would be a photo of Cron Dog.
[177] As the dangers of this type of suggestive identification procedures are well-known, and have been for many years, I will not belabour them. Two brief quotations from decisions of this court make the point:If a witness has no previous knowledge of the accused person, so as to make him familiar with that person’s appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.), at p. 177]
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Later in the reasons for decision, the Court reiterates the need for constant watchfulness on the part of judges and Crown counsel to see that nothing unfair to an accused person is done or put in evidence in connection with identification procedure. I would add that it is clear that the police also have a duty to ensure the integrity of the identification process. Their role indeed may be most important of all since they are usually in control of the methods chosen to recall or refresh the memory of eye witnesses. While it may not be possible to improve upon the reliability of a witness's original perception of a person, it is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case. Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of the judicial process, may result in a serious miscarriage of justice. [Miaponoose, at pp. 424-25] See also Biddle, at paras. 32, 39-44; Phillips, at paras. 20, 23, 28 and 33; Sophonow Inquiry, at p. 32; R. v. Bao, 2019 ONCA 458, 377 C.C.C. (3d) 218, at para. 27.
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