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Evidence - Recognition Evidence. 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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