R. v. Moran, 2008 SKPC 33 (CanLII)
[30] The onus is, of course, on the Crown to prove beyond a reasonable doubt all of the constituent elements of the offence. Included therein is the need to establish the identity of the accused as the person who committed this alleged offence. In this case the identification evidence is from one witness, Mr. Fyfe. The identification of the accused is based on his observations of his assailant during an attack upon him in his home after 2:00 a.m. on July 1, 2006, upon a photo line-up conducted on July 2, 2006 and in court identification of the accused on January 2, 2008. There is
also evidence of Mr. Fyfe’s viewing of a photograph of the accused on July 8, 2006 in the presence
of Ms. Finlay and Mr. Fyfe’s observation of Mr. Moran outside a courtroom in April 2007. Such identification evidence requires careful scrutiny by the Court.
[31] I am mindful of the case law which clearly sets out the frailties of eyewitness testimony and the need to test its reliability. This case law is set out in great detail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R. v. Bigsky, [2006] S.J. No. 801 and by Judge Whelan of the Provincial Court of Saskatchewan in R. v. Friesen, [2005] S.J. No. 417.
[32] In R. v. Friesen, supra the Court stated as follows at paragraphs 8 and 9:
¶ 8 In R. v. Burke, [1996] 105 CCC (3d) 205 (S.C.C.), Lamer C.J.C. made the following comments at pp. 224-5, regarding the potential pitfalls of identification evidence:
The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proven erroneous, the trier of fact must be cognizant of `the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection'." Regina v. Sutton [1970] 3 CCC 152. ¶ 9 In R. v. Spatola, [1970] 4 CCC 241 (Ont. C.A.) at p. 249, Laskin J.A. (as he then was) made the following observation about identification evidence: Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous ... The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction ...
Reliability of the Photo Line-up
[43] In R. v. Friesen, Judge Whelan referred to the recommendations of former Mr. Justice Cory of the S.C.C. in the Sophonow Inquiry [The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001)]. The recommendations from the Sophonow Inquiry regarding photo line-up identification are as follows:
Photo pack line-up
• The photo pack should contain at least 10 subjects.
• The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
• Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.
• Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
• The photo pack must be presented sequentially and not as a package.
• In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
• Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
• It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.
[44] I am of the view that while strict compliance by the police of the Sophonow recommendations concerning identification procedure is not required by the law, the recommendations do provide a useful tool when examining identification procedures employed by police. In the present case the identification procedures adopted by the police complied with some of the recommendations of the Sophonow Inquiry and did not comply with other recommendations
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