R. v. Field, 2018 BCCA 253
[27] The principal objection raised by the appellant to the admissibility of the recognition evidence was the assertion that the trial judge erred in not rejecting the evidence on the basis of the poor quality of the still photos. The judge held that the quality of the photos went to weight not admissibility.
[28] In Leaney, the Supreme Court of Canada held that where a videotape of the crime was available, recognition evidence based on prior acquaintance could be admitted to establish identification of the perpetrator. The Court did not discuss in detail admissibility considerations for such evidence, but subsequent judgments have clarified the factors to be considered in determining the admissibility of such evidence.
[29] The issue was addressed by D. Smith J. (as she then was) in R. v. Anderson et al, 2005 BCSC 1346. Justice D. Smith held that:
[20] … the threshold level for admissibility of recognition evidence is that of a helpful witness, who is in a better position than that of the trier of fact to identify the accused. The issue then becomes what degree of familiarity is needed in order to meet the threshold level for admissibility.
[30] She concluded that:
[25] … the indicia for determining whether the threshold degree of familiarity for the reception of recognition evidence has been met is threefold: (i) the length of the prior relationship between the witness and the accused; (ii) the circumstances of the prior relationship between the witness and the accused; and, (iii) the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.
[31] In R. v. Panghali, 2010 BCSC 1710 aff’d 2012 BCCA 407, Holmes J. summarized the significance of prior acquaintance in this way:
[42] Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
[43] That said, a complete inability to respond to questions about the basis for the opinion may, even in a person long familiar with the subject identified, call into question the value of the opinion.
[44] Also, many of the well-known frailties of eyewitness identification have application in this context of “recognition” evidence. Of particular concern is that witnesses may unconsciously approach the process of comparison with an eye to similarities, and not differences.
[45] But those are matters relating to the weight of the opinion, and do not usually preclude its admission into evidence.
[32] The Ontario Court of Appeal has expressed the criteria for admissibility of recognition evidence as “familiarity with the person identified and being in a better position than the court to make the identification” in R. v. Behre, 2012 ONCA 716 at para. 20.
[33] The specific issue of whether the quality of the photographic or video evidence was an admissibility issue was addressed by Fisher J. (as she then was) in R. v. McKinnon, 2013 BCSC 2097:
[35] No issue is taken at this stage about the admissibility of the videos themselves. It is clear that such evidence is admissible provided it is relevant and of sufficient quality to give a clear picture of events and individuals. This comes from R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197.
[36] Issue is taken with the admissibility of video recognition evidence that is based on a video that provides either a fuzzy or fleeting glimpse of the subject. The defence says that in such circumstances, the evidence is of no weight and should be excluded.
[37] There is no guidance on this in the case law, as the quality of the video was not in issue in relation to video recognition evidence in any of the cases referred to me. However, it is my view that generally, issues related to the quality of a video will not affect the admissibility of recognition evidence if the video is otherwise admissible. As long as there is a visible image of the person being identified, the judge on a voir dire is not to weigh the recognition evidence. It would be a rare case where the judge could properly determine that no weight could be given to such evidence.
[Emphasis added.]
[34] In my opinion, these judgments set out the appropriate principles for determining the admissibility of recognition evidence based on photographic or video evidence. When such evidence is tendered, the trial judge must conduct a voir dire to determine admissibility: Leaney. The purpose of the voir dire is to determine whether the recognition witnesses are in a better position than the trial judge as a result of their prior acquaintance with the accused to determine whether the person depicted in the photo or video is the accused. Provided the trial judge is satisfied that the image in the photo or video is capable of identification, issues as to the quality of the photographic or video evidence will go to the weight of the evidence. Once admitted, the trier of fact will need to consider the recognition evidence along with the evidence as a whole to determine whether the Crown has established identification beyond a reasonable doubt.
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