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Evidence - Identification (3). R. v. Goodridge
In R. v. Goodridge (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an unsuccessful application for judicial review (i.e., certiorari) to a Superior Court judge, seeking to quash the committal", here "to stand trial after a preliminary inquiry on a charge of aggravated assault".
Here the court considers the unreliability of eyewitness identification:[13] There can be no question that the identification of Mr. Goodridge as the assailant at the preliminary inquiry was manifestly unreliable. The victim’s “recognition” of Mr. Goodridge in court as the man who stabbed him was direct evidence, which, as I will explain, includes “witness testimony as to ‘the precise fact which is the subject of the issue on trial’”, in this case identity: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 22, citing John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at §2.74. But it was an in-dock identification, and in-dock identifications tend to have little probative value, in part because they are inherently suggestive “show up[s]”, where “the only person shown to the identifying witness is the very person suspected” to be guilty of the offence: R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 44-53, for a general discussion of the frailties of in-dock identifications. Where there are additional weaknesses, in-dock identifications may be entitled to “virtually no weight”: R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont. C.A.), at paras. 17-19.
[14] In this case, there were additional weaknesses with the in-dock identification. As appellant’s counsel aptly put it before us, it “bore all the touchstone dangers of identifications that have led to wrongful convictions in the past: a stranger, cross-racial identification following a brief encounter, unsupported by any pre-trial identification procedures or corroborative evidence.” And see R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 174; R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23. The photographs do little to bolster the reliability of the identification. The victim did not specifically identify Mr. Goodridge as the man in the photographs. Further, the poor quality of the photos caused the preliminary inquiry judge to express skepticism about the victim’s identification of the man they depicted as the one who stabbed him.
[15] Had this been the state of the evidence after trial, at the very least it would have required a strong jury instruction or a sharp judicial self-direction about the dangers of relying upon it: see Hibbert, at paras. 44-53. I agree with appellant’s counsel that no reasonable juror, properly instructed, could convict on such evidence and that a conviction on this evidence would be an unreasonable verdict: see R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at paras. 69-78, 84-89; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 41. At paras 42-81 the court considers whether the principle advanced by the defendant from Hay (that eyewitness evidence alone is insufficient to ground a conviction) is good law - and whether it applies in this case.
. R. v. Buoc
In R. v. Buoc (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions "by a jury on two counts of second degree murder and one count of attempted murder".
The court considers eyewitness 'identification' and 'recognition' evidence, here in a jury charge analysis:[35] It is well recognized that eyewitness identification evidence is inherently unreliable: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 52. This court and other appellate courts have repeatedly emphasized the dangers of eyewitness identification and the importance of proper pre-trial identification procedures: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 184, leave to appeal refused, [2021] S.C.C.A. No. 263. The core concern with evidence of this kind is that eyewitnesses can be “honest and convincing, but mistaken,” especially where the witness is identifying a stranger, the circumstances of the viewing raise accuracy concerns, the pre-trial identification procedure is flawed, or there is no independent confirmatory evidence: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at para. 23, citing R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673.
[36] The courts have also cautioned that when the police show a witness one photograph of an accused as a potential suspect rather than a photo lineup, the process is prejudicial because it suggests the identity of the perpetrator to the witness: R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 27; R. v. Goldhar, 1941 CanLII 311 (ON CA), [1941] 2 D.L.R. 480 (Ont. C.A.), at p. 480; R. v. Smokler, [1941] 2 D.L.R. 480 (Ont. C.A.), at p. 480; and R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 36.
[37] Recognition evidence, where a witness identifies a person previously known to them, is a subset of identification evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. 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. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 34. In assessing the reliability of recognition evidence, the trier of fact should consider matters such as how familiar the witness is with the accused and the opportunity the witness had to observe the accused.
[38] Because of these inherent dangers, where there is eyewitness identification evidence, including recognition evidence, a trial judge must caution the jury about its unreliability generally, and about any specific frailties relevant to the facts of the case: Mills, at para. 187. The jury charge should identify any defects in the identification procedure followed by the police. Such defects are “factors the jury should be instructed to take into account in assessing the reliability of the identifications and determining the weight to be given [to] this evidence in reaching their decision as to the accused’s guilt or innocence”: R. v. D’Amico (1993), 1993 CanLII 8482 (ON CA), 16 O.R. (3d) 125 (C.A.), at p. 129. Juries should also normally be warned about the frailties of eyewitness identification even in cases involving recognition evidence: Olliffe, at para. 40. . R. v. Ross
In R. v. Ross (Ont CA, 2026) the Ontario Court of Appeal considered the evidentiary treatment of video, here for identification purposes:[9] With respect to the first ground of appeal, the appellant submits that the trial judge failed to instruct herself about how to rely on video surveillance evidence in accordance with the guidance from the Supreme Court of Canada in Nikolovski.
[10] In Nikolovski, the accused was charged with robbing a convenience store. At trial, the Crown introduced a videotape of the robbery recorded by the store security camera as evidence. The store clerk testified that it showed the entire event.
[11] At trial, the store clerk testified, and could not identify the accused with certainty. The trial judge directed herself as to the frailties of eyewitness identification, but concluded that the videotape was very clear and that the accused was in view of the camera sufficiently long enough for her to make a careful observation. Accordingly, she convicted the accused.
[12] The Supreme Court considered the evolution of the use of audio and videotape evidence in Canada and stated that a tape, including a videotape, particularly if it is not challenged as to its accuracy or continuity, can provide the most cogent evidence of the relevant events: Nikolovski, at para. 16. The Supreme Court further stated at paras. 22, 23 and 30:So long as the videotape is of good quality and gives a clear picture of events, and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available.
....
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. .... 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 is the person in the tape beyond any reasonable doubt then that decision should not be disturbed.
....
Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. . R. v. Brown
In R. v. Brown (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against findings of "guilty of three counts of forcible confinement, assault with a weapon, assault causing bodily harm, dangerous operation of a motor vehicle and failure to stop while being pursued by police".
Here the court considers "(g)eneral legal principles relevant to eyewitness evidence":[54] Section 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 gives an appellate court the power to set aside a conviction that is “unreasonable or cannot be supported by the evidence”. This requires the court to assess the totality of the evidence. The test to be applied by an appellate court is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; and R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26.
[55] Section 686(1)(a)(i) of the Criminal Code recognizes that, in some cases, even where there is an error-free trial and some evidence to support a conviction, appellate intervention is nevertheless necessary to avoid an injustice: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 672; R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 144.
[56] A jury’s verdict is entitled to deference: Shaw, at para. 144. The court will find an unreasonable verdict where it is satisfied that the verdict “is one that a properly instructed jury acting judicially could not reasonably have rendered”: W.H., at para. 26.
[57] Convictions based on eyewitness identification evidence are particularly well suited to review under s. 686(1)(a)(i), given the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases that turn on the reliability of eyewitness evidence: Tat, at p. 673; Shaw, at para. 146.
[58] The weight to be given to identification evidence will depend on the entirety of the identification process, as revealed by the evidence: Tat, at p. 656. In Tat, at p. 673, Doherty J.A. listed circumstances where convictions based on eyewitness evidence may lead to an unreasonable verdict:The extensive case-law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is no other evidence tending to confirm or support the identification evidence. [59] An inappropriate pretrial identification procedure does not necessarily render the subsequent identification inadmissible. Rather, it is a factor that affects the weight to be given to the evidence: R v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 429; R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 91. In some cases, there may be other evidence or circumstances that serve to validate the witness’ identification: Miaponoose, at p. 429. Independent confirmatory evidence “can go a long way to minimizing the dangers inherent in eyewitness identification”: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471; R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at para. 24.
[60] The subsequent identification of an accused by a complainant in the courtroom does not add weight to an initial flawed identification process: Miaponoose, at p. 429. In fact, a conviction based on an in-court identification alone is unsafe and will likely result in an acquittal on appeal on the basis that the verdict is unreasonable: Gagnon, at para. 92. In Gagnon, at para. 93, Weiler J.A. explained the concerns with in-dock identifications:The accused is often the only person in the prisoner’s dock or one of a few dissimilar looking persons and so the identification made is suggested to the witness. The identification is thus subject to the frailty that the witness, although honest, may be mistaken, and therefore the identification may be unreliable. [61] The trial judge must caution the jury about the unreliability of eyewitness identification evidence generally, and about any specific frailties relevant to the facts of the case: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 187, leave to appeal refused, [2021] S.C.C.A. No. 263. The jury charge should identify any defects in the identification procedure followed by the police. Such defects should be “one of the factors the jury should be instructed to take into account in assessing the reliability of the identifications and determining the weight to be given [to] this evidence in reaching their decision as to the accused’s guilt or innocence”: R. v. D’Amico (1993), 1993 CanLII 8482 (ON CA), 16 O.R. (3d) 125 (C.A.), at p. 129. . R. v. G.D.
In R. v. G.D. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a conviction for 'sexual abuse'.
Here the court considers the adequacy of a jury charge respecting eyewitness identification:[33] The appellant argues that the trial judge erred by separating a general caution with respect to eyewitness identification evidence and the witness’ specific evidence, including its frailties. To be clear, the appellant does not argue that the trial judge failed to provide an adequate caution or that he failed to raise frailties with the witness’ evidence for the jury to consider (though the appellant points out the coverage of the frailties was not comprehensive, and did leave out, for example, a problematic in-dock identification of the appellant by the witness as well). Rather, the basis for the error alleged by the appellant is the failure to situate the frailties in the context of the caution.
[34] The appellant relies on R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 79, where this court, quoting from R. v. Keane (1977), 65 Cr. App. R. 247 (Eng. C.A.) at p. 248, noted:The principle is the special need for caution when the issue turns on the evidence of visual identification: the practice has to be a careful summing-up, which not only contains a warning but also exposes to the jury the weaknesses and dangers of identification evidence both in general and in the circumstances of the particular case. [Emphasis added in Baltovich.] [35] The need for the link between the frailties of eyewitness identification evidence generally and the specific frailties of the case before the jury is now well settled: see e.g., R. v. Brown, 2007 ONCA 71, 216 C.C.C. (3d) 299, at paras.17-18.
[36] The Crown does not dispute this principle but argues that a functional approach to the jury charge as a whole makes clear the jury could not be confused by the frailties of the witness’ identification evidence and the risks of eyewitness identification evidence generally. Both were reviewed by the trial judge in his charge, albeit in different sections.
[37] There is no doubt that an ideal charge would include the risks of eyewitness identification evidence together with the frailties of the specific eyewitness evidence before the jury together in the same section of the charge. However, we reject the submission that this proximity is a requirement of a legally valid charge.
[38] As the Supreme Court of Canada held in R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at para. 53, the sufficiency of an instruction “must be assessed in the context of the charge as a whole”. There, the Court specifically recognized that an instruction may be insufficiently detailed in one part of the charge but can be supplemented by another part of the charge such that the jury would be equipped with a sufficient understanding of the law to decide the case. In our view, that is what occurred in this case.
[39] The trial judge gave accurate and sufficient instructions on both the general dangers of eyewitness identification, and the specific frailties of the eyewitness identification in this case.
[40] At the outset of the general eyewitness instruction, the trial judge asked the jury to recall the witness’ testimony that she recognized Bobby as the complainant’s uncle when he dropped off the pager at her house. This would have indicated to the jury that her identification evidence should be kept in mind when considering the dangers of eyewitness identification. Later in the charge, after providing detailed summary of the witness’ evidence (which we review next), the trial judge again stated that the witness’ evidence about the delivery of the pager was “not reliable evidence of Bobby as [the complainant’s] uncle because of the inherent dangers of identification evidence.” The jury was therefore alerted to the connection between the dangers of eyewitness identification and this witness’ identification of Bobby both before and after the specific summary of the frailties in her evidence.
[41] The trial judge dealt specifically with the length of the observation, noting that the witness initially testified that “she got a glimpse of him, then she said she got more than a glimpse of him, and then she said she got a solid look at him.” He dealt with the fact that the witness told police she had “buried these memories and friendships many years ago”. The trial judge dealt with the possibility of tainting of this evidence by the complainant or the police as well as the possibility of the complainant’s friend having a motive to assist the complainant. Finally, the trial judge highlighted the disputed evidence about the colour of the car, noting that the witness had testified that Bobby’s car was dark coloured, in contrast with the evidence of other witnesses.
[42] We note that experienced trial counsel reviewed the eyewitness identification sections of the charge in detail and was active in suggesting language for the charge relating to the witness’ evidence. However, counsel raised no concern with the gap between the general eyewitness identification evidence section of the charge and the concerns with the witness’ identification evidence.
[43] For these reasons, we reject this ground of appeal. . R. v. Fitzpatrick
In R. v. Fitzpatrick (Ont CA, 2026) the Ontario Court of Appeal allowed two criminal appeals, one against a first-degree murder conviction and the other against a manslaughter conviction.
Here the court considers 'resemblance evidence':1. The trial judge erred by admitting prejudicial “resemblance evidence”
a. The law
[49] Where there is video evidence relating to the commission of an offence and the identity of the perpetrator is at issue, the Crown may seek to prove that the accused is the perpetrator by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them as the person in the video: Leaney, at p. 413; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 28. This recognition evidence is a form of identification evidence, which is itself a form of admissible lay opinion evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 219 O.A.C. 26 (C.A.), at para. 39.
[50] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, Blair J.A. explained the test for threshold admissibility of recognition evidence. He referred, at para. 14, to this test as the “prior acquaintance/better position” test. The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, is in a better position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on the evidence in question”: Hudson, at para. 30, citing Berhe, at paras. 14, 21.
....
[64] I cannot accept the Crown’s submission that the stumble evidence constituted resemblance evidence that was admissible because there was other inculpatory evidence linking Fitzpatrick to Person #2: see e.g., R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at para. 121. Resemblance evidence is typically used to describe something specific about a suspect that resembles the accused. That resemblance may come from a suspect’s physical features, a distinctive gait, or clothing: see e.g., R. v. Boucher (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.). In other words, its probative value comes from its specificity. A non-distinctive stumble or trip over a curb cannot reasonably amount to evidence of a suspect resembling the accused. Indeed, this evidence had no bearing on the issue of Person #2’s identity and was accordingly inadmissible: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-31. . R. v. MacLaughlin
In R. v. MacLaughlin (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "child luring, invitation to sexual touching, making child pornography, criminal harassment, and uttering a death threat".
The court considers identification evidence, here in the context of self-instructing by the trial judge:[20] Turning to the second argument, the appellant correctly notes that “[v]oice identification evidence, like any identification evidence, ought to be treated with extreme caution”: R. v. Clouthier, 2012 ONCA 636, at para. 19; R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 79; R. v. A.W., 2024 ONCA 564, 439 C.C.C. (3d) 530, at para. 46. However, the need for a specific caution about the frailties of this evidence requires “a case-by-case determination having regard to the balance of the evidence in the case”: A.W., at para. 54. . R. v. Sturgeon
In R. v. Sturgeon (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal defendant's appeal, finding that while the trial judge "misapprehended the corroborative evidence", they did so with immaterial effect.
Here the court considers the evidence law of 'eyewitness identification':[35] The dangers of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification are notorious: see R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at paras. 23-24. Trial judges are required to guard against these dangers by closely scrutinizing the reliability of the witness’s description of the perpetrator and that description’s similarities and dissimilarities with the accused. 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. Trial judges should also evaluate the evidence in light of the four factors derived from this court’s decision in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673, namely:(i) whether the person identified was a stranger or known to the witness since, if the witness recognizes the perpetrator as someone he or she knows, that makes the identification more reliable than trying to remember a stranger;
(ii) whether the circumstances of the identification were conducive to an accurate identification;
(iii) whether the pre-trial identification process was flawed; and
(iv) whether there was independent evidence confirming the identification. This fourth factor, independent confirmatory evidence, “can go a long way to minimizing the dangers inherent in eyewitness identification”: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471. ....
[41] Further, this is not a case where there is contrary evidence casting doubt on Mr. Darnell’s identification of the appellant, such as where the witness described physical characteristics that were inconsistent with the perpetrator’s (Olliffe, at paras. 42, 45; Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, at pp. 489-490), or where there were other witnesses whose evidence contradicted that of the identification witness (Chartier, at p. 490). . R. v. Smith ['cross-racial identification']
In R. v. Smith (Ont CA, 2025) the Ontario Court of Appeal considered 'cross-racial identification':[15] We agree that it would have been preferable for the trial judge to self-instruct on this risk and consider it. In oral argument, he suggested that the defence needed to adduce social science evidence before he could do so. This was incorrect because cross-racial misidentification is a well-recognized danger which is the subject of judicial notice and does not require expert evidence: see, e.g., R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 49; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 29-30, 35; R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610. Failure to grapple with it can be a reversible error if it poses a serious danger in the circumstances of the case: R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23.
[16] But this risk was not a serious danger in the circumstances of this case so the trial judge’s failure to consider it was not fatal. This was not a case where the eyewitnesses were purporting to positively identify the appellant as the assailant, rather than simply providing descriptions of what the assailant had looked like. The defence did not articulate any case-specific factors which increased the risk and, as the Crown submits, it did not impact the accuracy of the witnesses’ descriptions of the assailant’s skin colour, height, and clothing on which the trial judge relied. Further, as we explained, the trial judge carefully examined all the other relevant factors, as in R. v. Lewis, 2022 ONCA 282, at paras. 26-32. . R. v. Vu
In R. v. Vu (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal Crown appeal, here from "acquittals on two counts of sexual assault and one count of forcible confinement."
The court considers 'similar fact' evidence, here in an identification context:[36] Similar act evidence is presumptively inadmissible. The Crown holds the onus of establishing, on a balance of probabilities, that the evidence should be admitted. That onus is met where the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. Although the trial judge did not refer to any case law, he correctly summarized these legal principles.
[37] The probative value of the evidence comes from the objective improbability of coincidence: Handy, at paras. 47-48. The prejudice comes from both moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice concerns itself with whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice comes from the injection of delay and complexity into the trial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 65, 68; Handy, at para. 31. Some of these concerns are attenuated in judge-alone trials such as this one: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 88; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; and R. v. MacCormack, 2009 ONCA 72, 95 O.R. (3d) 21, at paras. 56, 68-69.
[38] As the trial judge noted, where the proposed evidence is directed at the issue of identity, the law insists upon a “high degree of similarity” or “striking” similarity”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98; and R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 39. The reason for a heightened bar for similarity relates to the driver of cogency when it comes to the similar act evidence being used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19; see also, Handy, at para. 78; and Atwima, at para. 39.
[39] There exist occasions where acts are so strikingly similar that they will constitute the offender’s signature or trademark: Arp, at para. 45; see e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12, and 24. In those situations where signatures or trademarks do not exist, striking similarities can still arise from an “accumulation of commonalities” that, when considered together, are sufficient to reveal an improbability of coincidence that two or more people would display these matching characteristics: Arp, at para. 45; Handy, at para. 81.
[40] In assessing whether the proffered evidence has this cumulative effect, Binnie J. in Handy, at para. 82, provided a list of helpful considerations:(a) proximity in time between the acts;
(b) the extent to which they are similar in detail;
(c) the number of acts said to be similar;
(d) the circumstances surrounding or relating to the acts;
(e) the distinctive feature(s) that may be involved in the acts;
(f) whether there exist any intervening events; and
(g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” [41] Accordingly, similar act evidence is not considered on a piecemeal basis. Rather, the goal is to consider whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actor. If so, the trial judge must go on to the second stage and determine whether the evidence is linked in some way to the accused: R. v. Woodcock, (2003), 2003 CanLII 6311 (ON CA), 14 C.R. (6th) 155 (Ont. C.A.), at para. 81; Arp, at paras. 54-56. There need only be “some evidence” linking the accused to the acts: R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954; Perrier, at para. 24; Durant, at para. 91; and Atwima, at para. 42. To be sure, this is a “low evidentiary threshold”: Jesse, at para. 63.
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