[61] Eyewitness identification evidence is notorious for its potential to be unreliable, even where the witness providing it is credible. For that reason, it must be treated with considerable caution by a trier of fact (R v Hibbert, 2002 SCC 39 at paras 50–53; [2002] 2 SCR 445; R v Lachance, 2023 SKCA 48 at paras 80–81; R v Clark, 2022 SCC 49, endorsing the dissenting reasons of Leurer J.A. (as he then was) in R v Clark, SKCA 36 at para 72, 2022 SKCA 36 (CanLII), 475 DLR (4th) 659; R v Bigsky, 2006 SKCA 145, [2007] 4 WWR 99 [Bigsky]; R Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197 at para 23; R v Kennedy, 2015 SKCA 32 at para 34, 457 Sask R 182; R v Jack, 2013 ONCA 80 at para 13, 294 CCC (3d) 163; and R v Biddle, 2018 ONCA 520 at paras 31–32, 363 CCC (3d) 118). Where the Crown’s case relies entirely on eyewitness evidence to establish identification, it is incumbent upon a trier of fact to consider the reliability and not just the credibility of that evidence. In a judge-alone trial, this calls upon the trial judge to recognize the danger of convicting on eyewitness identification alone, to be alive to any significant factors which may affect the reliability of the identification evidence, and to address those factors in their reasoning (Bigsky at para 70).
[62] It must also be understood that what C.S. offered in this case was not eyewitness identification evidence respecting Mr. Stevenson, but recognition evidence. In other words, he testified as to his recognition of a person he knew, rather than to his identification of a stranger. Appellate courts across the country have frequently held that recognition evidence is considered to be inherently more reliable and to generally carry more weight than eyewitness identification of someone with whom the witness was previously unacquainted (see, for example: R v Kytwayhat, 2021 SKCA 67 at para 23; R v Bob, 2008 BCCA 485 at paras 12–13, 63 CR (6th) 108; R v Kulba, 2021 ABCA 11 at para 12; R v Williams, 2019 MBCA 55 at para 4; R v Geary, 2010 MBCA 33 at paras 17–18, 251 Man R (2d) 258; R v Woodard, 2009 MBCA 42 at para 33, 245 CCC (3d) 522; R v Wanihadie, 2021 ABCA 173 at para 28 [Wanihadie]; R v McCracken, 2016 ONCA 228 at para 25, 348 OAC 267 [McCracken]; R v Benson, 2015 ONCA 827 at para 25, 333 CCC (3d) 180; R v Olliffe, 2015 ONCA 242 at para 39, 322 CCC (3d) 501 [Olliffe]).
[63] None of this is to say that a witness’s familiarity with the person being identified removes the need for the trier of fact to conduct a robust analysis. As the Ontario Court of Appeal noted in R v Chafe, 2019 ONCA 113, 371 CCC (3d) 91 [Chafe], recognition evidence remains “subject to the same frailties and the same risks” as identification evidence and must be approached with “the same caution” and must “have the same level of reliability” before it can be accepted (at para 29). See also: R v Hudson, 2020 ONCA 507 at para 34, 391 CCC (3d) 208; McCracken at para 25; Olliffe at para 39. Even where the witness knows the person being identified, “the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability” (Chafe at para 30).
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