R. v. Roche-Garcia, 2024 BCCA 298
[157] The appellant acknowledges that out-of-court statements identifying the perpetrator of an offence are sometimes admitted as an exception to the rule against prior consistent statements through the testimony of the maker of the statement or the testimony of third parties who were present when the identification was made. The out-of-court identification evidence is not admitted to prove the truth of the earlier identification, but to assist the trier of fact in making an informed determination as to the weight it should give to the in-court identification of the accused as the perpetrator.
[158] The leading case in this area is R. v. Tat, (1997), 14 C.R. (5th) 116, 1997 CanLII 2234 (Ont. C.A.). In Tat, Justice Doherty identified two situations in which out-of-court statements of identification may be admitted:
[35] Firstly, prior statements identifying or describing the accused are admissible where the identifying witness identifies the accused at trial. The identifying witness can testify to prior descriptions given and prior identifications made. Others who heard the description and saw the identification may also be allowed to testify to the descriptions given and the identifications made by the identifying witness [citations omitted] …
[36] Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in‑court identification [citations omitted] …
[37] If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment…
[38] Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. In his influential article, Evidence of Past Identification, [1977 Crim. L.R. 268]…Professor Libling explains the admissibility of the out‑of-court statements where the witness makes an in-court identification in this way, at pp. 271-72:
There is no hearsay problem with this kind of evidence. It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court. As a general rule, a witness is not permitted to testify as to his own previous consistent statements because they add nothing to the in-court testimony. But evidence of previous identification strengthens the value of the identification in court by showing that the witness identified the accused before the sharpness of his recollection was dimmed by time. Furthermore it is important, in assessing the weight of the identification in Court, to know whether the identifying witness was able to identify the accused before he was aware that the accused was the person under suspicion by the police.
[39] I agree with Professor Libling’s analysis. When such evidence is tendered, the trier of fact is not asked to accept the out-of-court statements as independent evidence of identification, but is told to look to the entirety of the identification process before deciding what weight should be given to the identifying witness’s testimony. In this respect, evidence that the witness previously gave a description which matched the accused or previously selected the accused in a line-up serves no different evidentiary purpose than would evidence showing that the identifying witness had an ideal vantage point from which to observe the perpetrator of the offence. Both are factors which will assist in weighing the witness's in-court testimony.
…
[41] The second situation in which out-of-court statements of identification have been admitted arises where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did.
[161] In support of his position on this point, the appellant relies on R. v. James, 2011 ONCA 839 at paras. 43–46, and R. v. Johnson, 2013 ONCA 73 at para. 29.
[162] In James, the judge admitted the evidence of a key witness, given on the trial of a co-accused, identifying the appellant, James, from a photo array. At the appellant’s trial, the same witness professed to have no memory of ever meeting the appellant or of testifying at the co-accused’s trial. The witness’s professed total loss of memory of the relevant facts, including the making of the identification, rendered the opportunity to cross-examine that witness at trial valueless as a means of testing the reliability of identification. In these circumstances, the Court held that the Crown failed to establish that the witness’s identification of the appellant at the co-accused’s trial was sufficiently reliable to justify its admission at the appellant’s trial.
[163] In Johnson, Rouleau J.A., writing for the Court, interpreted Tat as standing for the proposition that when a witness identifies the accused as the offender in court and testifies that he remembers identifying the same person in an out-of-court identification, the prior identification is admissible in support of the in-court identification made by that witness.
[169] It is black-letter law that questions permitted as of right on re-examination must relate to matters arising out of cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation given the questions posed and answers given in cross-examination: R. v. Evans, [1993] 2 S.C.R. 629 at 644, 1993 CanLII 102. As Watt J.A. noted in R. v. Candir, 2009 ONCA 915 at para. 148
It is fundamental that the permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness has been cross-examined. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts: R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.), at p. 568.
[Emphasis added.]
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