R. v. Wilband, 2011 ABPC 298
[13] Defence counsel supplied me with two authorities as to the law on eyewitness identification evidence. The first, R. v. Spatola, [1990] 3 O.R. 74 (Ont. C.A.) deals with directions to a jury and is not helpful. The second, R. v. Powell (2007), 2007 CanLII 45918 (ON SC), 76 W.C.B. (2d) 101 from the Ontario Superior Court, involves eight victims of sexual assault and robbery where only three victims were capable of identifying their assailant, with no other direct evidence of identification. It is a case of applying similar fact evidence and bears no resemblance to the facts before me. However, the court does review important factors in assessing the strength of eyewitness identification evidence which I have reviewed.
[14] I will now set out the law of eyewitness identification as I understand it. Direct evidence of eyewitnesses to a crime is preferable to circumstantial evidence but many grave injustices have occurred on the basis of such direct evidence. The Commissioner reported at page 250 of the Commission of Inquiry into the Beck trials:
“...evidence as to identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury.”
[15] In R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 the Supreme Court of Canada revisited the frailties of eyewitness identification at page 224-5:
“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 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.”
[16] Fundamental factors affecting the weight of eyewitness evidence are:
- opportunity to observe
- the duration of the observation
- light conditions
- the distance from the witness to the person
- the eyesight of the witness
- colour perception
- previous acquaintance by eyewitness with the person
- presence or absence of distinctive features or appearance of the person.
All these factors have been set out by various authorities over the years.
[17] In R. v. MacDonald (1951) 1951 CanLII 416 (BC CA), 101 C.C.C. 78 (B.C.C.A.) Justice O’Halloran stated at pages 81-2:
“The opportunity for honest mistake in cases of identification is too well known to require elaboration.”
[18] In R. v. Quercia (1990) 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) the accused was charged with sexual assault. The attack lasted for a half-hour and took place at 7:30 a.m. The complainant had an adequate opportunity to view the attacker’s face. She gave a detailed description of him including build, hair colour and style, eyebrows, and colour of eyes. The description did not match the accused in two respects. The complainant told the police that her attacker’s left eye was noticeably different from his right eye and that he had acne marks or pockmarks on his face. She picked the accused out of a photo line-up. The photograph clearly showed the accused did not have any acne marks or pockmarks and his eyes were normal. The accused was subsequently arrested and remained in custody until his trial. He did not exhibit these two identifying features. He was convicted of aggravated sexual assault.
[19] The Court of Appeal said at page 387:
“The fact that the victim, with absolute certainty, picked the appellant out of a properly constituted and conducted photograph line-up enhances the reliability of her identification evidence. The fact that the appellant’s photograph did not reveal two of the most prominent features of her description of her assailant detracts from the reliability of her identification evidence.”
At page 390-1, the Court said this:
“In my analysis, two features of the evidence are potentially capable of placing this verdict beyond the limited review permitted by s. 686(1)(a)(i). The first is the victim’s good opportunity and sustained effort to observe and mentally record the appearance of her assailant during the attack. The second is the selection of the appellant from the photograph line-up. After very anxious consideration, I am satisfied that both are fatally flawed. The victim’s opportunity to observe and her determination to mentally record the appearance of her attacker magnify the significance of the marked differences between her initial recollection of what her assailant looked like and the actual appearance of the appellant. I refer particularly to the pock-marked facial skin and the askew left eye. On the victim’s evidence, these inconsistencies cannot be explained by difficulties inherent in her opportunity to see her attacker or in her ability to mentally record the appearance of her attacker. Nor did the victim testify that her initial description was in error, although she suggested that the prominence of these two features were being over-emphasized by counsel for the appellant. These two differences remain totally unexplained. One must conclude that, in at least two vital respects, the appellant quite simply does not fit the description initially given by the victim and verified by her as accurate at trial.
The selection of the appellant in the photograph line-up suffers from the same difficulty. Accepting the fairness of the line-up procedure, the reality remains that the photograph of the appellant is inconsistent with the description given by the victim of her assailant in two significant material respects. One is driven to the conclusion that either her initial discription (sic) was accurate in its main features, in which case the appellant could not have been her attacker, or that her recollection of what her assailant looked like had inexplicably changed significantly in the several days between the attack and the photograph line-up. If the latter conclusion is drawn, it is difficult to accept her subsequent and different recollection at the time of the photograph line-up as totally reliable.
I acknowledge the victim’s honesty and integrity and I applaud her courage, but I am driven to conclude that her evidence of identifying the appellant as her assailant was significantly flawed and could not, standing alone, justify a conviction. There is virtually no other evidence confirming her identification. The weight of the remaining evidence points away from the appellant’s involvement in the attack. In my judgment, the verdict is unreasonable and cannot be supported by the evidence. I would allow the appeal, quash the conviction and enter an acquittal.
[20] In R. v. Miaponoose (1996) 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.) the accused was charged with sexual assault of a 12-year old girl. He was a stranger. A comprehensive description was given. A few days later a suspect was located. The police officer obtained the accused’s consent to come into the police vehicle with him and by prior arrangement drove by a location where the complainant and her father were waiting. She fully expected to see her assailant at that time. She recognized the accused as her assailant although she only had a view of him from the chest up. She did not see him again until the preliminary hearing. At trial the accused was convicted on this identification.
In overturning the conviction and entering an acquittal, the court stated at page 450-1:
“The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on ‘Pretrial Eyewitness Identification Procedures.’ The Commission concludes in its study that ‘the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable’ (at p. 7).
In discussing the dangers inherent in eyewitness testimony, the Commission reviews actual cases of wrongful conviction based on eyewitness testimony; psychological studies that reveal the inherent unreliability of this kind of evidence; and the reasons why eyewitness testimony is difficult to assess through courtroom procedures. The study reiterates the fact that it has long been recognized by commentators that, of all types of evidence, eyewitness identification is most likely to result in wrongful conviction and this even in cases where multiple eyewitnesses have identified the same accused.”
and at pages 456-7:
“The trial judge described the viewing of the appellant by the complainant as having been ‘achieved in a most unusual manner.’ The police officer, a man with almost twenty-four years of experience as a police officer, conceded that the procedure he adopted was inappropriate. He agreed that he was taught and was aware of proper identification procedures and that the method chosen in this case did not in any way meet appropriate standards. There were no exigent circumstances preventing the use of non-suggestive methods. He conceded that he knew that the method he chose was wrong and ‘probably’ unfair to the appellant, yet he still chose to proceed in this fashion.
The pre-trial identification procedure in this case was totally unjustifiable in the circumstances. There may be situations where a confrontation between a single suspect and a complainant is the only possible way to ascertain whether the suspect can be recognized. Even in such exigent circumstances, every effort should be made to maintain as much impartiality as possible and to clearly document all details, and all statements made by all parties, from the beginning of the identification process to the end. In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here, there were no exigent circumstances. No efforts were made to ensure some fairness to the process. The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.”
[21] In R. v. Robertson (2003) ABPC 64, a decision of this court, the accused was charged with stealing a truck, driving it dangerously, running over another vehicle causing injury and damage, and leaving the scene. The driver drove into a shopping mall, abandoned the truck and ran. He was observed by a witness coming out of a bank. The truck came within three feet of him when the driver got out and ran. His description included a pock-marked face. A person matching his description was stopped and detained. A police officer interviewed the witness and upon hearing someone was detained a few blocks away, asked the witness if he could identify the driver and drove him by the police car where the accused was apprehended and detained. He identified him as the driver of the truck. Subsequently, a photo lineup was shown to the witness and he readily identified the accused as the driver. He said he was absolutely certain that was the person. The witness identified the accused in the dock. When asked if he could see the pockmarks on his face he could not.
A police officer also identified the accused as the driver when he passed the truck going in the opposite direction. He was six feet from him. He turned and pursued the truck. He also described the driver as having pockmarks on his face. Later, the same officer interviewed the apprehended accused. He did not notice any pockmarks on the accused. Nor did he see any on the accused in the dock.
The court found the identification evidence of the witness to be very credible. His identification at the photo lineup was strong and he was absolutely certain. There was no doubt he believed the accused was the person driving the truck. However, because of the tainted intervening act of driving him by the accused apprehended in the back seat of a police car, the court could not be sure whether he was identifying the driver or the person in the police car when he identified him in the lineup and in the dock. There was an unfairness to the intervening act. As well the pockmarked feature was problematic. The witnesses’ excellent identification evidence was contaminated and there was no strong corroborating evidence.
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