Modèle de directive au jury concernant l'identification par un témoin, pour la première fois, de l'accusé en salle de Cour

R v McKenzie, 2024 SKKB 150

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[128]                             The evidence of identity is limited to three in-dock identifications – from Peter Powder, Linda Halkett, and Sandy McKenzie. Before December 23, 2019, none had met “the blonde girl” or “Reese.”   

[129]                             Ms. Sutherland-Kayseas refers me to R v Clark, 2022 SKCA 36, [2022] 6 WWR 659 [Clark]. At issue in Clark was whether the jurors should have received a “Hibbert-type” caution (R v Hibbert, 2002 SCC 39, [2002] 2 SCR 445 [Hibbert]), alerting them to the dangers of relying upon an in-dock identification, and instructing them how that evidence should be weighed.

[130]                             Mr. Clark was convicted at trial. His appeal to the Saskatchewan Court of Appeal was dismissed, with Leurer J.A. (as he then was) in dissent. Upon further appeal to the Supreme Court of Canada (R v Clark, 2022 SCC 49, 420 CCC (3d) 287) his appeal was allowed. Specifically, the Supreme Court stated:

1   We agree with Justice Leurer, in dissent, that a specific Hibbert type instruction (R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445) was required in the circumstances of this case. The appeal is allowed, substantially for the reasons of Justice Leurer. The conviction is set aside and a new trial ordered.

[131]                             For examples of a Hibbert-type caution, I have reviewed the standard jury instructions respecting in-dock identification as they appear in the following three resources:

o   CJC Model Jury Instructions;

o   Watt’s Manual of Criminal Jury Instructions 2023; and

o   Canadian Criminal Jury Instructions.

They are all very similar. From the CJC Model Jury Instructions:

The [witness] identified [the accused] for the first time in the courtroom while [the accused] was sitting in the prisoner’s dock. This identification is entitled to little weight. This is because there is a danger that a witness will assume that the person sitting in the prisoner’s dock is the offender.

[132]                             In Clark, Justice Leurer distills the appellate jurisprudence pre- and post-Hibbert. Recognizing the myriad of circumstances in which a Hibbert-type instruction may be required, he concludes:

101  I find it to be neither necessary nor appropriate to attempt to construct an exhaustive list of criteria as to when a Hibbert-type instruction is required. However, several principles emerge from the case law that I have reviewed and guide me in this case. In this regard, juries should receive a caution about the dangers of an in-court identification when the first actual identification of an accused occurs in court. Beyond this, consideration of when a special caution is required, and what it must contain, begins with an understanding as to what prior identification a witness has made of the accused before testifying. Account must also be taken of the quality or basis for such identification. Finally, attention must be paid to the opportunities that exist for that identification to change over time, and why that might be the case. As is evident from the case law I have reviewed, the reasons why these are paramount considerations are that the evidentiary value of the in-court identification is a direct product of these three factors and, conversely, the dangers associated with an in-court identification increase as the quality of any pre-testimony identifications decreases.

                                                                                                   [emphasis added]

 

[133]                             At trial in Clark, two witnesses provided in-dock identifications of the accused as the person they had seen with Christopher Durocher shortly before his demise.