Revue de la jurisprudence sur l'identification oculaire d'un témoin

St-Cyr c. R., 2008 QCCS 2087 (CanLII)

[9] Dans l'arrêt R. vs. Bigsky, la juge J.A. Jackson de la Cour d'appel de la Saskachewan fait une revue de la jurisprudence sur l'identification oculaire d'un témoin. Citant l'arrêt Atfield de la Cour d'appel de l'Alberta, elle reprend sous la plume du juge Belzil les propos suivants:

«The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases, where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. As is said in Turnbull, the jury (or the judge sitting alone) must be satisfied of both the honesty of the witness and the correctness of the identification. Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavorable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof, and a conviction so founded is unsatisfactory and unsafe and will be set aside. It should always be remembered that in the famous Adolph Beck case, 20 seemingly honest witnesses mistakenly identified Beck as the wrongdoer.

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It goes without saying that correctness of identification must be decided by examining the whole of the evidence left on the scales at the end of the case and not by selectively picking and accepting those items of evidence which support correctness while disregarding contradictory evidence not specifically rejected for cause, which might leave correctness in doubt. The accused is entitled to the benefit of the most favorable interpretation of discrepancies in evidence which cannot otherwise be resolved. Such an examination in this case, conducted without first accepting or rejecting the correctness of identification but to determine if it is so, leads to the conclusion that the eye witnesses were mistaken, albeit honestly so, and compels the acquittal of the appellant.»