R v John, 2021 SKCA 83
[18] There are three recognized types of identification evidence that may be tendered at trial: eyewitness evidence, identification by the trier of fact and recognition evidence. A summary of each form of identification is found in R v Field, 2018 BCCA 253, 362 CCC (3d) 401, leave to appeal to SCC refused, 2019 CanLII 413 [Field]:
[23] There are at least three distinct types of identification evidence that may be tendered, each with its own reliability characteristics:
(i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the least reliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653 at para. 29. In light of the many instances in which identification has proved 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”: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 at para. 52.
(ii) Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit of photographic evidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of the perpetrator. As long as the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in the photo, the evidence can be admitted and weighed with other evidence by the trier of fact: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 at para. 23.
(iii) Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify the individual shown in a photo or video. This evidence is admissible if the witness had a prior acquaintance with the accused and is therefore in a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.).
(Emphasis in original)
[19] Eyewitness identification is the lay opinion of a witness who identifies an accused: “The admissibility of the opinion is based on prior observations, out-of-court identification procedures and confirmation of the opinion in-court by way of an in-dock identification as contemplated by s. 6.1 of the Canada Evidence Act” (David Tanovich, Louis Strezos and S. Casey Hill, McWilliams’ Canadian Criminal Evidence, loose-leaf (Rel 2021-No 1) 5th ed (Toronto: Thomson Reuters, 2013) at para 32:20 (WL) [McWilliams’]). This trial did not involve eyewitness identification.
[20] Recognition evidence is another form of identification evidence that may be tendered at trial. It most often occurs where the Crown asks a witness with prior familiarity or knowledge of the accused to identify him or her from a video or still photograph presented to that witness at trial. A helpful explanation of this type of evidence is found in R v Murtaza, 2020 ABCA 158, 453 DLR (4th) 550 [Murtaza]:
[6] … [Recognition evidence] depends wholly on the witness’ prior interaction with the accused – other than as an eyewitness to the alleged criminal act – and his or her opinion, based on the witness’ prior interaction with the accused, that the person depicted in a video or photograph of the crime and the accused are the same person.
[21] Recognition evidence is based on a witness’ prior interaction with the accused. It is this prior interaction or knowledge that renders such evidence admissible. In the absence of any prior interaction, the evidence is nothing more than inadmissible opinion evidence.
[22] As a general rule, where recognition evidence is tendered, a voir dire must be held to (a) ensure the witness has sufficient familiarity with the accused, (b) is able to view a photo or video presented in court in a manner that is helpful to the trial judge, and (c) there is no prejudice to the accused from an inquiry into the prior acquaintance. See, for example, R v Leaney, 1989 CanLII 28 (SCC), [1989] 2 SCR 393 [Leaney], and R v Berhe, 2012 ONCA 716 at para 24, 292 CCC (3d) 456. That is, “this type of non-expert opinion evidence is admissible 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 Brown (2006), 2006 CanLII 42683 (ON CA), 219 OAC 26 (CA) at para 39).
[23] The last of the three recognized forms of identification evidence is where the trier of fact is invited to make his or her own identification by comparing still photos or a video to the accused as he or she appears in court. In R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197 [Nikolovski], the Supreme Court recognized the legitimate use of video evidence by a trier of fact to identify an accused. The Supreme Court commented that video evidence can often present clear and convincing evidence of identification that a trier of fact can use as the sole basis for identifying the accused in the courtroom as the perpetrator of the crime. See also R v Hill, 2005 NSCA 108, 200 CCC (3d) 218, and R v Delorme, 2017 SKCA 3.
[24] In Nikolovski, high-quality video from a surveillance camera captured the accused robbing a store. Neither the store clerk nor a police officer who knew Mr. Nikolovski could be certain about the identity of the accused as the robber. The trial judge viewed the video carefully, compared it to Mr. Nikolovski, who was present in court, and, based on that comparison, determined that he was the person in the video. The Supreme Court held that a trier of fact may properly rely on video evidence to establish identity, even where identity is uncorroborated by other evidence, as long as the video is sufficiently probative and of sufficient quality. The Supreme Court said as follows:
[22] So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. …
[23] It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.
(Emphasis added)
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