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Evidence - Recognition Evidence. 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. Al-Qaysi
In R. v. Al-Qaysi (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against a conviction for "second degree murder".
Here the court considers 'recognition' evidence:[63] I now turn to Mr. Al-Qaysi’s submission that the trial judge erred by admitting Ms. Browne’s recognition evidence and erred in assigning it any weight because it lacked indicia of reliability. These submissions are based on the two-step test for reliance upon recognition evidence articulated in Hudson, at para. 29, which says:To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it. [64] The first question, which is the admissibility question, is answered by asking whether the witness, by virtue of their familiarity with the accused, is in a better position to identify the accused than the trier of fact: Hudson, at paras. 30-31. Once this threshold is met, the witness will be permitted to testify, and the trier of fact must then determine that testimony’s ultimate weight by reference to certain non-exhaustive indicia of reliability: Hudson, at para. 33.
[65] I would not accept Mr. Al-Qaysi’s submission that the trial judge erred in admitting the evidence by failing to resolve the threshold question. Although the trial judge did not hold a voir dire to assess whether Ms. Browne’s evidence was admissible due to her familiarity with Mr. Al-Qaysi, trial counsel did not object to this or dispute that such familiarity existed. Indeed, trial counsel’s submission, accepted by the trial judge, that Ms. Browne harboured animus towards Mr. Al-Qaysi is essentially a concession of familiarity. There was therefore no controversy at trial on the familiarity issue. In general, appellate courts should not entertain arguments raised for the first time on appeal: R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40. More importantly, the trial judge addressed familiarity in his reasons. As I have explained, he found that Ms. Browne had strong familiarity with Mr. Al-Qaysi because he had been her boyfriend for years. He was therefore clearly satisfied that the threshold standard had been met.
[66] I emphasize that a voir dire should be held before admitting this kind of evidence, even if not requested by the defence, but failing to do so is not a reversible error where the evidence is clearly admissible in any event, as it is here: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at paras. 15, 24 and 27. I would find that the trial judge did not err in admitting the recognition evidence.
[67] Similarly, I would not accept Mr. Al-Qaysi’s remaining submission that the trial judge erred by assigning weight to the recognition evidence because it lacked adequate indicia of reliability. The Hudson factors, which are intended to guide the assessment of the reliability of recognition evidence, require consideration of: 1) the circumstances of the identification, 2) the level of detail provided, 3) the quality of the video or photographic evidence on which the identification is based, and 4) the existence of any corroborative evidence: Hudson, at para. 33. The trial judge spoke directly to the ultimate reliability of the evidence and the appropriate weight it would be given, citing and applying the “suggested Hudson factors”. In addressing each of these factors, he was attentive to the frailties Mr. Al-Qaysi now points to, including the relatively undetailed nature of Ms. Browne’s identification and the quality of the video footage. Absent palpable and overriding error, this court will not reweigh these factors: see Hudson, at para. 45. Mr. Al-Qaysi has failed to identify any palpable or overriding errors.
[68] In my view, there is no basis to interfere with the decision of the trial judge to admit and assign weight to the recognition evidence. I would deny this ground of appeal. . R. v. J.D.
In R. v. J.D. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against "convictions on firearm offences and from the dismissal of his s. 11(b) Charter application".
Here the court considers the adequacy of the court's conduct of a Leaney (recognition evidence) application:The trial judge did not err by permitting the Crown to bring its Leaney application
[3] The appellant argues that the trial judge should have dismissed the Crown’s Leaney application[2] because it failed to comply with the rules. Specifically, the Crown brought its Leaney application just four days before the trial’s scheduled start date, and the material did not contain sufficient detail to provide adequate notice of the factual and legal basis for the application.
[4] We do not agree.
[5] There is no question that the Crown’s application was late. But it was within the trial judge’s discretion to decide the application on its merits under r. 5.3 of the Criminal Rules of the Ontario Court of Justice. The trial judge noted that it had been known for months that the Crown was bringing a Leaney application and that the Crown should have provided full disclosure much earlier, but defence counsel was also obligated to follow up with the Crown if it knew of disclosure deficiencies. Both sides could have acted more diligently concerning the Leaney evidence.
[6] Having regard to all of the circumstances, including the nature and serious of the charges, the trial judge decided not dismiss the Leaney application. He concluded that the situation could be remedied and did so by exercising his discretion to grant an adjournment, which allowed the Crown time to provide further information and gave the defence time to review all of the Crown’s materials. The trial judge also waived the requirement that the defence file a written response.
[7] This approach was open to the trial judge. It remedied the Crown’s late application and redressed any prejudice the Crown’s lateness or lack of details might have caused. There is no basis for this court to interfere with the trial judge’s discretionary decision. . R. v. Fisher
In R. v. Fisher (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "aggravated assault, assault with a weapon, carrying a concealed weapon without authorization, and possession of a concealed weapon for a dangerous purpose contrary to ss. 268(2), 267(a), 90(1) and 88.1(1) of the Criminal Code".
Here the court considers issues of 'recognition evidence':[30] At trial, the Crown sought to admit the recognition evidence. Following a careful application of the test for the admission of prior acquaintance evidence from R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, the trial judge admitted the recognition evidence. He found that the first prong of the test was met because Officer Lymer had a clearly articulable basis for identifying Mr. Fisher based on the prior interview and the social media searches. The trial judge noted that Officer Lymer was able to identify Mr. Fisher in the video surveillance based on features of Mr. Fisher’s appearance, including his build, chin-strap beard, and glasses. The trial judge further found that, based on the prior contact between Officer Lymer and Mr. Fisher, that Officer Lymer was in a better position than he was to identify Mr. Fisher. Further, the probative value of the recognition evidence was high. This satisfied the second prong of the test.
[31] Mr. Fisher makes several submissions in support of his argument that the trial judge erred in admitting the recognition evidence. The heart of the arguments is two-fold. First, in light of the brief duration of the interview a year prior to the incident and the lack of detail Officer Lymer could provide about that interview, Mr. Fisher argues that Officer Lymer was really relying on the Facebook photos he obtained, including some as recently as May 2021, not his memory of the 2018 interview, when purporting to identify Mr. Fisher on the video. This would put the officer in no better position that the trial judge to make the identification. Second, in oral argument, Mr. Fisher submits that in any event, given that Officer Lymer participated in the investigation, it was inappropriate for the trial judge to admit purported recognition evidence which carried a “significant risk of confirmation bias”. It was misguided, Mr. Fisher asserts, to have an investigating officer be a Leaney witness.
[32] Mr. Fisher also points to alleged misapprehensions in the trial judge’s reasons about when exactly Officer Lymer initially viewed the Facebook page (i.e., whether he did so just before or after the 2018 interview), and Officer Lymer’s recollection of whether Mr. Fisher was wearing glasses during the interview (Officer Lymer could not recall, but the trial judge noted otherwise). Mr. Fisher further argues that the trial judge erred in using the “immediacy” of Officer Lymer’s identification of Mr. Fisher in his review of the video surveillance as a badge of reliability.
[33] These arguments cannot succeed.
[34] Leaney recognition evidence is an example of non-expert identification evidence stemming from the witness’s recognition of a person based on prior acquaintance, which is admissible in some circumstances: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 13. The trial judge carefully and correctly set out the law governing the admissibility of such evidence, sometimes referred to as the “prior acquaintance/ better position test”: Leaney at p. 413; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39; Berhe, at paras. 14, 20-21. It is trite law that the determination of the admissibility of identification evidence is entitled to deference, absent an error in principle or an unreasonable ruling: R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 32.
[35] The trial judge made no error in his application of the prior acquaintance/better position test. First, he did not effectively permit Officer Lymer to make a Nikolovsky assessment in his place, as Mr. Fisher alleged: see R. v. Nikolovsky, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. Rather, the trial judge found that Officer Lymer was familiar with Mr. Fisher based on his previous interview and the roughly contemporaneous social media investigation of Mr. Fisher, and that Officer Lymer was therefore in a better position than the trial judge was to identify Mr. Fisher as the person on the bar surveillance video. This is a reasonable ruling on the evidence and is entitled to deference. Whether Officer Lymer conducted the social media investigation just before or shortly after his 2018 interview with Mr. Fisher was of no moment, since either way Officer Lymer was well-positioned to satisfy himself that the man in the social media photos was Mr. Fisher. The combination of the interview and initial social media investigation and Officer Lymer’s focus on Mr. Fisher, including distinctive features of his appearance, then formed the basis for his recognition of Mr. Fisher as the person on the bar basement video recording.
[36] Nor do we find error in the trial judge’s passing reference to the speed of Officer Lymer’s recognition of Mr. Fisher in his review of the video surveillance. The trial judge listed numerous reasons why he found the recognition evidence to be reliable and probative, including Officer Lymer’s recollection of Mr. Fisher’s distinctive features and that he saved the Facebook photos into a Word document, the latter suggesting he paid particular attention to Mr. Fisher’s physical appearance. Nor does any misstatement by the trial judge regarding whether Mr. Fisher was or was not wearing glasses during the 2018 interview, or only in the Facebook photos, have any material bearing on the admissibility of the officer’s opinion evidence, since Officer Lymer testified that he was able to identify Mr. Fisher on the video based on the combination of his physical and other features, not merely because of his glasses.
[37] A trial judge’s misapprehension of evidence will only rise to the level of a reversible error when it “play[s] an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1. Here, the trial judge’s mistaken belief that Officer Lymer specifically remembered Mr. Fisher wearing glasses during the 2018 interview was not central to his conclusion that the officer’s recognition evidence was admissible. Moreover, Officer Lymer’s recognition evidence played only a small part in the trial judge’s conclusion that the evidence as a whole overwhelmingly established that Mr. Maier-McKenzie was stabbed by the man in the Nirvana baseball hat, and that this man was Mr. Fisher.
[38] Second, the argument that Officer Lymer could not appropriately give Leaney recognition evidence in light of his involvement in the investigation is misplaced in the circumstances here. This argument was not made by counsel at trial. It is without traction in this case in any event. Officer Lymer was asked to review the video surveillance before he had any involvement in the bar investigation. He was given no information about who the man in the Nirvana baseball hat might be before he reviewed the video and recognized Mr. Fisher. He was not the lead investigator in the investigation that followed. In these circumstances, there are no grounds to believe that Officer Lymer’s recognition evidence was tainted by his subsequent knowledge that Mr. Fisher was a suspect in the stabbing, or his observations of Mr. Fisher during his arrest two days later.
[39] We therefore find no error in the trial judge’s admission of the recognition evidence. While there is no need to rely on the curative proviso in this case, we would further note that the trial judge found that there was “overwhelming evidence” both that the man wearing the Nirvana baseball hat stabbed Mr. Maier-McKenzie in the bar, and that this man was Mr. Fisher. These conclusions would both hold up even if the recognition evidence from Officer Lymer had not been admitted. . 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. Aragon
In R. v. Aragon (Ont CA, 2022) the Court of Appeal considers 'recognition' evidence:[19] “Recognition evidence” is offered when a witness provides an opinion as to the identity of an individual depicted in a video or photograph. It is a form of non-expert opinion evidence. Its admission is tested by examining the threshold reliability of the recognition, based primarily on the familiarity of the recognition witness with the subject. There is also inquiry into the need to have a witness offer their opinion that the subject is the person they claim: R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at paras. 28-31. Recognition evidence is therefore generally admitted, “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”: R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456, at para. 14, citing R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39.
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