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Evidence - Identification (2). R. v. A.W. [voice identification]
In R. v. A.W. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal in an historical sexual assault, here where a key issue was the voice identification of the defendant:VOICE IDENTIFICATION
[46] Voice identification evidence is even more fraught with dangers than eye-witness identification and must be treated with extreme caution: R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 79; R. v. Clouthier, 2012 ONCA 636, at para. 19; R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36. Where the Crown relies on voice identification evidence, the trial judge must give careful direction to the jury, warning of mistakes that can be made. Juries should be reminded that witness confidence in the voice identification does not substantially correlate to the accuracy of identification: R. v. Pinch, 2011 ONSC 5484, at para. 75; see also R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 47.
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[54] While there are cases in which a voice identification caution has been held not to be required, this will be a case-by-case determination having regard to the balance of the evidence in the case: R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, paras. 54-62. In this case, where the complainant did not see the assailant and voice identification was the only source of identification, utmost caution, through the specific and detailed approach contemplated by the trial judge in the pre-trial conference, was required.
[55] Specifically, in addition to the general caution provided with respect to voice identification, the trial judge was required to draw a careful linkage between the challenges inherent in voice identification evidence generally and the specific evidence in this case: Pinch, at para. 76; R. v. Neverson, 2020 QCCS 253, at para. 171, aff’d, 2024 QCCA 519; R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 9, leave to appeal refused, [2008] S.C.C.A. No. 483. ...
[56] The voice identification caution in the jury charge was inadequate in the circumstances of this case and amounts to an error of law. This error, as with the failure to include an eye-witness identification caution, cannot be saved by considering the instructions as a whole, as the Crown argues. . R. v. A.W. [eyewitness identification]
In R. v. A.W. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal on an historical sexual assault, here where a key issue was the identification of the defendant on the adequacy of a related jury charge:[1] On March 5, 2022, following a six-day trial, the appellant was convicted by a jury of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C- 46. The sexual assault took place in or around 1983 and was reported approximately 37 years later, in 2020. The complainant did not see her assailant but testified that she knew him from high school and recognized his voice during the assault.
[2] The appellant appeals his conviction on the basis that the trial judge erred in law by failing to provide any eye-witness identification caution, providing an inadequate voice identification caution, failing to prohibit misuse of a prior consistent statement, and providing an insufficient instruction on the Crown’s burden of proof. The appellant also argues that the trial judge breached his duty to assist the appellant as a self-represented accused.
[3] Identity was the central issue in this trial involving significantly historical allegations. The appellant submitted, and his evidence was, that he did not attend the event following which the assault took place, had never been alone with the complainant, and did not commit the assault. While the complainant was certain that the voice she heard during the assault was that of the appellant, this was steadfastly denied. In the circumstances, as is detailed below, both an eye-witness caution and a complete and specific voice identification caution were required to be put to the jury. They were not.
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EYE-WITNESS IDENTIFICATION
[26] The dangers of eye-witness identification are well established, as is the imperative to caution juries accordingly. This is because eye-witness identification evidence can be difficult to assess and triers of fact may place undue reliance on such testimony when compared to other types of evidence: R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29. Trial judges “must convey to the jury the judicial experience that eye-witness evidence poses serious dangers”: R. v. Lewis, 2018 ONCA 351, at para. 18; R. v. Graham, 2023 ONCA 273, at para. 11.
[27] Where identity is an issue, the jury must be instructed to consider the frailties of eye-witness identification and to scrutinize the witness’ description of the assailant: R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 184. Considerations include whether the suspect was known to the witness; the circumstances of contact during the offence; and whether the sighting was in circumstances of stress. Any distinctive characteristics of the suspect may be important: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17. The specific dangers arising on the evidence in the particular case must be highlighted for the jury: Lewis, at para. 18.
[28] Relatedly, the charge must caution the jury that an in-dock identification is to be given little, if any weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 47-53. As Laskin J.A. stated in R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 32:The dangers linked to eyewitness identification evidence increase exponentially when it comes to in-dock identifications. In these circumstances, the identification witness has a person presented to them, a person who the police obviously believe committed the offence. Given the suggestive nature of in-dock identifications, they are renowned for being of little to no value as reliable identification evidence. [Citations omitted]. [29] Recognition evidence, a subset of eye-witness evidence where the parties are known to one another, is subject to the same frailties and juries must be cautioned accordingly: M.B., at paras. 33-34; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 30-32; R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308, at para. 83; R. v. Gordon, 2022 ONCA 799, at para. 41, leave to appeal refused, [2023] S.C.C.A. No. 136. The jury may be “quick to assume that, because the witness knows the person, the identification must be correct”: Chafe, at para. 29. In Chafe, this Court confirmed, at paras. 29-30, that recognition evidence is not “different” from identification evidence and that the same level of assessment of the evidence must apply:Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition. [Citations omitted.] [30] Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015) provides detailed examples of the many considerations that may be put to the jury regarding eye-witness identification, in the context of a review of the specific evidence in the trial. These include, for example: the reliability of the witness’ memory; whether the witness knew the person before seeing them; how good the lighting was; how far apart the parties were; how long after the events the witness gave the first description; and whether the witness described any particular features of the accused. . R. v. Kennedy
In R. v. Kennedy (Ont CA, 2024) the Ontario Court of Appeal considers the reliability of eyewitness evidence:[14] Eyewitness identification evidence can be notoriously unreliable, because an honest witness may provide an inaccurate identification. Trial judges must “carefully scrutinize the witnesses’ description of the assailant” and treat eyewitness identification with “considerable caution”: R. v. Gough, 2013 ONCA 137, at paras. 34-37.
[26] In any event, even if the trial judge had found that Ms. Devine was mistaken about the man she saw having been wearing the appellant’s hat, this would not have obliged him to reject her identification evidence. As this court noted in R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471, “[t]he existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent in eyewitness identification”. In light of the evidence that the appellant had expressed animosity towards Mr. Fregeau and specifically threatened that his truck was “gonna be gone” if Mr. Fregeau did not leave, it would have been a remarkable coincidence if some other person driving a vehicle that resembled the appellant’s Dodge Journey – which Ms. Devine also said she recognized – had been similarly motivated to burn Mr. Fregeau’s truck. . R. v. Layne
In R. v. Layne (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal concerning eyewitness identification evidence:[1] The law has developed safeguards to protect against honest but mistaken eyewitness identifications of the accused as the perpetrator. Evidence independent of the identifying eyewitness that confirms the identification’s accuracy is a critical safeguard. So are an eyewitness’s opportunity to accurately observe the perpetrator and a fair pre-trial identification procedure. Together, these and other safeguards can often validate the identification’s accuracy.
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(1) The Law Governing Identification Cases
[23] Identification cases pose the danger of “erroneous convictions 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. These dangers are especially high where: (1) the witness is identifying a stranger, (2), the circumstances of the viewing raise accuracy concerns, (3) the pre-trial identification procedure is flawed, and (4) there is no independent confirmatory evidence: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673. I refer to these as the four Tat factors.
[24] Trial judges guard against these dangers by closely scrutinizing identification evidence. They must carefully, cautiously, and critically analyze the reliability of the witness’s description of the perpetrator and that description’s similarities and dissimilarities with the accused. Further, they must assess the identification evidence against other potentially exculpatory evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 37, 42-44. Finally, they should evaluate the four Tat factors: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 194-195, leave to appeal refused, [2021] S.C.C.A. Nos. 263 & 274. The fourth factor, independent confirmatory evidence, “can go a long way to minimizing the dangers inherent in identification evidence”: Quercia, at p. 471. So can the second and third factors, accurate viewing opportunity and fair pre-trial identification: R. v. Blackman (2006), 2006 CanLII 42356 (ON CA), 84 O.R. (3d) 292 (C.A.), at para. 28, aff’d, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Longshaw, 2022 ONCA 88, at para. 21.
[25] Appeal courts also guard against identification evidence’s dangers by scrutinizing it more closely under the unreasonable verdict standard of review. Generally speaking, this standard requires the appellant to show that the trial judge’s verdict cannot be supported by the evidence or is vitiated by illogical or irrational reasoning: R. v. Brunelle, 2022 SCC 5, 412 C.C.C. (3d) 489, at para. 7. It requires deference to the trial judge’s factual findings and limits re-weighing the evidence: R. v. Charron, 2022 ONCA 394, at paras. 17, 20. But appellate courts apply this standard less deferentially in identification cases to guard against the reliability dangers they pose, which are well-suited to appellate review: Tat, at p. 673; R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 30.
[26] Defence counsel in identification cases sometimes attempt to raise a reasonable doubt by pointing to an alternative suspect. Where an alternative suspect theory has an air of reality, the trier of fact must examine whether the evidence supporting it, together with the other evidence, gives rise to a reasonable doubt. The Crown can negate an alternative suspect theory if the other evidence pointing to the accused as the perpetrator overwhelmingly defeats the evidence supporting that theory and negates reasonable doubt: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 58-60.
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[49] Prior identifications and descriptions of the perpetrator are routinely admitted to buttress in-court identifications because the former are usually more reliable than the latter. In-court identifications typically have little value on their own because the identifying witness’s memory has usually deteriorated by the time of trial, other people may have suggested to the victim that the accused is the perpetrator before the trial, and the fact that the accused is on trial suggests to the witness that the accused is the perpetrator. In contrast, prior identifications and descriptions are normally more reliable because they were made while the witness’s memory was sharper and often before suggestions that the accused was the perpetrator. For these reasons, they are admissible to confirm an in-court identification’s reliability and rebut the possibility that suggestions tainted it: Tat, at pp. 655-657; R. v. Langille (1990), 1990 CanLII 6782 (ON CA), 75 O.R. (2d) 65 (C.A.), at pp. 72-75.
[50] Tat distinguished between hearsay and non-hearsay uses of prior identifications and descriptions. These prior statements are not hearsay if admitted to buttress the in-court identification rather than to prove their own truth. While identifications and descriptions used for that buttressing purpose are prior consistent statements, they are excepted from the rule against those statements and are admissible even if not adopted and if no hearsay exception applies: Tat, at pp. 655-657, 661; R. v. Triolo, 2023 ONCA 221, 166 O.R. (3d) 179, at paras. 63-66, per Paciocco J.A. (dissenting in part, but not on this point), and at para. 174, per Doherty J.A. (concurring on this point)), aff’d, 2024 SCC 18. In contrast, prior identifications and descriptions are hearsay if the witness does not adopt them and the Crown uses them to prove their truth rather than to bolster in-court testimony: Tat, at p. 661; R. v. Coutu, 2008 MBCA 151, 231 Man. R. (2d) 275, at paras. 72-73.
[51] Tat also held that prior identifications and descriptions used to prove their truth are not categorically excepted from the hearsay rule. Rather, those identifications and descriptions are only admissible to prove their truth if: (1) an exception to the hearsay rule applies, or (2) the witness adopts them: at pp. 657-664; R. v. Appleton, 2024 ONCA 329, at para. 123. To adopt them, witnesses must testify that they made them and presently recall them to be true: R. v. Abdulle, 2020 ONCA 106, 149 O.R. (3d) 301, at para. 136.
[52] Tat’s distinction between hearsay and non-hearsay uses of prior identifications and descriptions matters if those prior statements are inconsistent with the identifying witness’s trial testimony. For instance, if the Crown argues that the trier of fact should find that a prior description inconsistent with the witness’s in-court testimony accurately described the perpetrator’s appearance on the day of the crime, then the prior description is being used to prove its own truth and not to bolster the in-court testimony that it contradicts. This triggers the hearsay rule, which makes the prior description inadmissible to prove its own truth unless a hearsay exception applies or the witness adopts it: Tat, at pp. 661-662; R. v. Campbell, 2006 BCCA 109, 207 C.C.C. (3d) 18, at paras. 80, 83, 87, 97; David M. Paciocco, Palma Paciocco, & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 181. In contrast, this distinction is unimportant if a prior description is consistent with in-court testimony because they then bolster each other’s reliability: R. v. Lugela, 2020 ABCA 348, 393 C.C.C. (3d) 157, at para. 42, citing David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 Can. Crim. L. Rev. 181, at pp. 211-212; Paciocco, Paciocco, & Stuesser, at p. 181.
[53] While the trial judge understandably relied on the Supreme Court of Canada’s seemingly contrary comment in R. v. Starr, this comment does not overturn Tat’s holding. Starr commented that prior identifications and descriptions are an “exception to the hearsay rule”: 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 221. But not “every word [of Starr] counts as binding legal authority” because that case is “only authorit[y] for what [it] actually decide[d]”: R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440, at para. 85 (quotation omitted). This comment from Starr is not binding because that case did not actually decide that this exception existed. Rather, Starr stated that this exception was “not directly brought into play on the[] facts”: at para. 224. Starr also did not intend to depart from Tat. Starr instead endorsed Tat and, like Tat, held that prior identifications and descriptions admitted to buttress in-court testimony do “not truly constitute hearsay”: Starr, at paras. 221-222; see also Campbell, at paras. 89-94.
[54] My conclusion is consistent with many post-Starr provincial appellate decisions. These cases follow Tat’s holding that prior identifications and descriptions are not hearsay if used to buttress in-court testimony and must be adopted or meet a hearsay exception if used to prove their own truth: see, e.g., Campbell, at paras. 87-97; Coutu, at paras. 77-82, 84, 87; Lugela, at paras. 42, 45; R. v. Downey, 2018 NSCA 33, at para. 86. Much scholarly commentary also supports this position: Peter Sankoff, The Law of Witnesses and Evidence in Canada, (Toronto: Thomson Reuters, 2019) (Release 4, 11/2023), §§ 11.18, 14.25; Paciocco, Paciocco, & Stuesser, at pp. 181-182.
[55] While Tat’s continued binding force is a sufficient basis for my conclusion, it is also consistent with sound legal principle. Using prior identifications and descriptions to prove their own truth adds additional hearsay dangers to identification evidence’s inherent dangers. As Tat reasoned, the combination of these two types of dangers calls for added caution. Treating prior identifications and descriptions used to prove their own truth as hearsay that is not categorically excepted from the hearsay rule permits courts to take a cautious approach by evaluating those statements’ necessity and reliability under the principled approach to the admission of hearsay evidence. In contrast, recognizing a categorical exception short-circuits the necessity and reliability analysis and undercuts the need for caution: at pp. 663-664; see also Sankoff, § 14:25.
[56] It follows that the trial judge erred in law by treating the victim’s references to cursive writing hand tattoos in his July 5 descriptions of the gunman as admissible hearsay and preferring them over the victim’s inconsistent trial testimony. Because Starr did not overturn Tat, those prior descriptions were not categorically excepted from the hearsay rule, and no exception to that rule applies. The victim also did not adopt his cursive writing hand tattoo statements because the Crown never specifically asked him if they were true: R. v. Atikian (1990), 1990 CanLII 6670 (ON CA), 1 O.R. (3d) 263 (C.A.), at p. 268. Instead, the Crown only asked him if the entirety of his July 5 descriptions, which also addressed the gunman’s other features, were true. This was insufficient because the victim inaccurately recalled stating in those descriptions that the gunman had finger tattoos, not hand tattoos. . R. v. Griffin
In R. v. Griffin (Ont CA, 2024) the Ontario Court of Appeal considered 'identification' as an evidentiary issue:[10] Mr. Herscovitch contends that this raised concerns about the reliability of the complainant’s identification of the appellant as the man who robbed her, as well as about the credibility of her account of being robbed. He argues that the trial judge erred by not instructing himself about the frailties of eyewitness identification evidence that still exist even when eyewitnesses purport to be recognizing someone who they know. He places particular reliance on Hourigan J.A.’s observation in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39, that: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. See also R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 26-34.
[11] We agree that previous familiarity with a person does not automatically allay all concerns about the possibility that an eyewitness’s identification of that person might be mistaken. However, unlike the situation in Chafe, the complainant in this case was not purporting to have identified the appellant based on only a brief observation of him. Rather, on her account, her encounter with the appellant in her apartment lasted for at least a few minutes, during which time they had some extended conversation. In our view, this significantly reduced the chances that she might have honestly mistaken some other man for the appellant. . 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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