R. v. Gonsalves, 2008 CanLII 17559 (ON SC)
[35] Many identification evidence cases, but especially eyewitness identification prosecutions involving identification of a stranger, raise an alert as to the well-recognized dangers inherent in such evidence and the risk of a miscarriage of justice through wrongful conviction: R. v. Goran, 2008 ONCA 195 (CanLII), [2008] O.J. No. 1069 (C.A.) at para. 19 (“Such evidence is inherently unreliable”); R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.) at para. 39; R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.) at para. 20; R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) at 383; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.) at 451; R. v. Biddle (1993), 1993 CanLII 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.) at 434 (reversed on a different basis (1995), 1995 CanLII 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.)). There is an ever present danger the innocent will be convicted: R. v. Forbes, [2001] 1 Cr. App. R. 430 (H.L.) at 434.
[36] Eyewitness identification evidence can be notoriously unreliable calling for considerable caution by a trier of fact: The Queen v. Nikolovski (1997), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.) at 411-412; Bardales v. The Queen, 1996 CanLII 213 (SCC), [1996] 2 S.C.R. 461 at 461; Burke v. The Queen (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.) at 224; Pretrial Eyewitness Identification Procedures (Law Reform Commission of Canada (1983)) at pages 7-14. Especially where the suspect is unknown to the eyewitness, there is the danger of an honest but inaccurate identification. This is the problem of a mistake by a convinced and convincing witness: R. v. Menard (1996), 1996 CanLII 685 (ON CA), 108 C.C.C. (3d) 424 (Ont. C.A.) at 437 (appeal dismissed (1998), 125 C.C.C. (3d) 416 (S.C.C.)). It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness’ identification which must be suitably established: R. v. Alphonso, [2008] O.J. No. 248 (C.A.) at para. 5 (“certainty cannot be equated with reliability”); R. v. Goran, at para. 26-7 (“the fallacy of mistaking certainty for accuracy”); R. v. Costigan, [2003] O.J. No. 397 (C.A.) at para. 4 (“sincere witnesses can be mistaken”); R. v. Knox (2006), 2006 CanLII 16479 (ON CA), 209 C.C.C. (3d) 76 (Ont. C.A.) at para. 50; R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.) at para. 28; R. v. Richards, 2004 CanLII 39047 (ON CA), [2004] O.J. No. 2096 (C.A.) at para. 33; R. v. Curran, 2004 CanLII 10434 (ON CA), [2004] O.J. No. 2632 (C.A.) at para. 29 (leave to appeal refused [2006] S.C.C.A. No. 44); R. v. Dorsey (2003), 2003 CanLII 26504 (ON CA), 173 C.C.C. (3d) 443 (Ont. C.A.) at para. 5.
[37] Special caution is necessary to avoid a miscarriage of justice: R. v. Hersi (2000), 2000 CanLII 16911 (ON CA), 137 O.A.C. 60 (C.A.) at 65. Identification is an interpretive expression of opinion based on a host of psychological and physiological factors: R. v. Miaponoose, at 451. In R. v. Quercia, at 383, Doherty J.A. observed: "The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law".
[38] Where there is no real question as to the witnesses' honesty and sincerity, an assessment of the reliability of the identification evidence always depends upon a critical consideration of the basis for the witnesses' conclusion: R. v. Miaponoose, at 452; R. v. Quercia, at 383. The poorer the quality of the eyewitness identification evidence, the greater the danger: Mezzo v. The Queen (1986), 1986 CanLII 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.) at 108.
[39] Our experience with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability. Judicially created checklists, based on long experience with the inherent dangers of eyewitness identification evidence, assist in assessment of the circumstances of a specific identification: The Queen v. Nikolovski, at 409, 412; Mezzo v. The Queen, at 129-132 per Wilson J. Was the suspect a complete stranger or known to the witness? Was the opportunity to see the suspect a fleeting glimpse or something more substantial? (a fleeting glance of a suspect by an eyewitness is generally unsatisfactory: R. v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1). Was the setting in the darkness of night or in well-illuminated conditions? Was the sighting by the witness in circumstances of stress (R. v. Nikolovski, at 412, 418; R. v. Francis, 2002 CanLII 41495 (ON CA), [2002] O.J. No. 4010 (C.A.) at para. 4)? Did the witness commit the description to writing or report the description to the police in a timely way? Is the witness' description general, generic or vague or is there a description of detail including distinctive features of the suspect and his or her clothing (R. v. Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No. 361 (C.A.) at para. 5, 8; R. v. F.A., at para. 64; R. v. Richards, at para. 9)? Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court? Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness' description of the suspect failed to include mention of a distinctive feature of the accused? Is the eyewitness identification unconfirmed?
[40] It is desirable that the police clearly document all details and statements made by the identifying witnesses from the beginning to the end of the process: R. v. Miaponoose, at 456. In part, this fosters confidence that the principle of independence in observation, mental recording, memory, and recounting of the description has been maintained.
[41] In the frequently quoted case of Rex v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.) at 177, Laidlaw J.A. stated:
The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person.
These principles from the Smierciak case have been affirmed over and over again: Mezzo v. The Queen, at 118-9 per Lamer J. (as he then was) (in dissent in the result) and at 135 per Wilson J.; R. v. Miaponoose, at 452-3.
[42] It is manifest that police officers must exercise the utmost care to ensure that the identification of persons suspected of crimes is made unassisted by witnesses who are uninfluenced by any suggestion, direct or indirect, which may prevent the identification from being independent and unbiased: R. v. D’Amico (1993), 1993 CanLII 8482 (ON CA), 16 O.R. (3d) 125 (C.A.) at 129; R. v. F.A., at para. 41, 44. This includes minimization of any suggestion that the police believe the suspect is the offender: R. v. Miaponoose, at 456.
[43] In an appropriate case, a trier-of-fact may be justified in convicting on the evidence of a single eyewitness: see Pelletier v. The Queen, 1996 CanLII 143 (SCC), [1996] 3 S.C.R. 601 at 601 (affirming [1995] A.Q. No. 1129 (C.A.)). In this regard, at page 413 of the Nikolovski decision, Cory J. stated:
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.
[44] On the whole of the evidence, questionable identification procedures may not be fatal to a finding of guilt. Improprieties or deficiencies in police procedures do not necessarily destroy the identification evidence or render it inadmissible: R. v. Mezzo, at 132-140; R. v. D’Amico, at 129. The use of inappropriate pre-trial identification procedures affects the weight of the subsequent identification: R. v. F.A., at para. 46; R. v. Jones, [2004] O.J. No. 1236 (C.A.) at para. 4. At para. 4 of R. v. Meister, [1995] O.J. No. 3472 (C.A.), the court stated:
We agree that the identification procedures were not ideal. Where, however, a conviction rests on identification evidence an appellate court ought not to overturn the conviction simply because the police line-up procedures could have been better. The appellant must persuade us that because of the deficiencies in the identification evidence a properly instructed trier of fact acting judicially could not reasonably convict.
[45] Not infrequently, courts reviewing the dangers of eyewitness identification testimony, in general or as a result of flawed identification proceedings, have specifically looked to the existence of compelling confirmatory evidence of the identification to assess the safety of a conviction: R. v. Phillips and Baker (2001), 2001 CanLII 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.) at 353-4; R. v. Moir, [2000] O.J. No. 4523 (C.A.) at para. 4; R. v. Bianco (2000), 2000 CanLII 17013 (ON CA), 149 C.C.C. (3d) 476 (Ont. C.A.) at 486; R. v. Carnes, [1999] O.J. No. 4245 (C.A.) at para. 2; R. v. Osborne, [1998] O.J. No. 2488 (C.A.) at para. 3; R. v. Robinson, [1998] O.J. No. 2081 (C.A.) at para. 4. Where cogent confirmatory evidence is absent, the circumstances of the identification may be sufficiently suspect that there exists a real risk of a miscarriage of justice: R. v. Boucher et al. (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.) at 58; R. v. Quercia, at 390-1. As stated at page 389 of the Quercia decision, the existence of confirmatory circumstantial evidence "can go a long way to minimizing the dangers inherent in eyewitness identification".
[46] Where identification evidence is tainted by inappropriate procedures, the evidence is not, subject to s. 24 Charter relief, thereby rendered inadmissible. The flaw goes to the issue of weight: R. v. Wang and Lo (2001), 2001 CanLII 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.) at 333; R. v. Miaponoose, at 458; R. v. Gagnon and Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.) at 237-8.
[47] The independence principle may be compromised where eyewitnesses have discussed amongst themselves their identification before independently reporting their descriptions or committing the identification to writing: R. v. Holden (2001), 2001 CanLII 14562 (ON CA), 56 O.R. (3d) 119 (C.A.) at 136-7. In R. v. Brown, [2000] O.J. No. 2612 (C.A.) at para. 1 and 3, the court stressed the importance that the two eyewitnesses' identification evidence was arrived at and provided independently.
[48] Some mention should be made of the distinction between an exculpatory dissimilarity in the identification process and other differences in serial descriptions by the eyewitness which are less destructive of the weight to be afforded an identification. Where the eyewitness provides an initial description of a feature of the suspect unpossessed by the accused, the general concern over eyewitness testimony is compounded, i.e. R. v. Boucher et al., at 58 (black tear-away pants without white stripe); R. v. Myers, [1997] O.J. No. 4185 (C.A.) at para. 5 (accused 2 to 4" shorter and 35 to 40 pounds heavier than described suspect); R. v. Iemmolo, [1998] O.J. No. 948 (C.A.) at para. 4 (accused not having dark skin complexion or meeting description of North American Indian); R. v. Miaponoose, at 459 (accused without facial hair described by witness); R. v. Quercia, at 386-391 (no acne marks or facial scars, no observable abnormality to left eye); Rex v. Harrison (1951), 1951 CanLII 403 (BC CA), 100 C.C.C. 143 (B.C.C.A.) at 144-147 (accused did not have blue eyes, fair-coloured hair and at least 4" taller than attributed height). Similarly, the failure of an eyewitness to note significant or distinctive identifying characteristics raises questions as to the reliability of the purported identification: R. v. McKenzie, [2007] O.J. No. 1670 (C.A.) at para. 28, 36-9 (scars on face and arm); R. v. Eakin, 2000 CanLII 2052 (ON CA), [2000] O.J. No. 1670 (C.A.) at para. 14-5 (mole on face, distinctive tattoo on forearm). Where a witness does not notice a distinctive feature of the suspect, i.e. a cleft chin, but does not say in the description to the police it did not exist, there is not an exculpatory dissimilarity: R. v. Deacon, [2001] O.J. No. 4561 (C.A.) at para. 1. In some cases, a failure to mention distinctive characteristics of a suspect in an initial description to the police may be quite material to the reliability of an identification. On the other hand, convictions have been upheld in circumstances of an eyewitness' initial omission of a distinguishing characteristic: see case summaries noted at Pretrial Eyewitness Identification Procedures, at page 203, fn. 184.
[49] A discrepancy, even in light of reported similarities, may, as noted in R. v. Boucher et al., at 58, be sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification to effectively one of no identification - an instance of mere "resemblance" as that term was employed in Chartier v. A.-G. Que. (1979), 1979 CanLII 17 (SCC), 48 C.C.C. (2d) 34 (S.C.C.) at 51-2. The significance of any discrepancy is essentially a matter of fact in considering the totality of the circumstances of the identification: R. v. Savoury and Shaw (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.) at para. 13; R. v. Langille (1990), 1990 CanLII 6782 (ON CA), 59 C.C.C. (3d) 544 (Ont. C.A.) at para. 21-6. Some differences alone, or even in combination, may be of little probative value provided that, on the totality of the evidence, the requisite standard of proof is discharged. Of course, multiple and significant features of difference fatally diminish the reliability of the identification: R. v. Blackman (2006), 2006 CanLII 42356 (ON CA), 215 C.C.C. (3d) 524 (Ont. C.A.) at 532-5; R. v. Dimitrov (2003), 2003 CanLII 50104 (ON CA), 181 C.C.C. (3d) 554 (Ont. C.A.) at para. 18 (leave to appeal refused [2004] S.C.C.A. No. 59); R. v. Bianco, at para. 30-4; R. v. Costigan, at para. 2; R. v. Franklin, [1999] O.J. No. 1785 (C.A.) at para. 1.
[50] An eyewitness’ out-of-court identification of a suspect, a prior consistent statement, is admissible as a hearsay exception: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) at 498-9; R. v. Peterpaul, 2001 CanLII 24119 (ON CA), [2001] O.J. No. 100 (C.A.) at para. 23-5.
[51] An identification procedure such as a line-up following a one-person show-up or viewing is essentially valueless: R. v. Anastasiou, [1998] Crim. L.R. 67 (C.C.A.). An in-dock or in-court identification is of negligible, if any, weight: R. v. Hibbert (2002), 2002 SCC 39 (CanLII), 163 C.C.C. (3d) 129 (S.C.C.) at 146-7; R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont. C.A.) at para. 17-9; R. v. F.A., at para. 47; R. v. Izzard (1990), 1990 CanLII 11055 (ON CA), 54 C.C.C. (3d) 252 (Ont. C.A.) 252 at 255-6. A photo line-up should include photos of persons who “were approximately the same age and colour as the accused”: R. v. Johnson, [2001] O.J. No. 2864 (C.A.) at para. 4. A photo line-up procedure should be executed using a sequential, not a photo-spread array: R. v. Curtone, [2005] O.J. No. 4225 (C.A.) at para. 3. A witness should not be subjected to any compulsion to choose a photo: R. v. Jones, at para. 4. A trier of fact is entitled to look at the likeness of the accused before the court to any photograph shown a witness: R. v. Meister, at para. 6.
[52] The Inquiry Regarding Thomas Sophonow conducted by The Honourable Peter Cory made a number of recommendations regarding photo line-up procedures as reproduced in the Report on the Prevention of Miscarriages of Justice, FPT Heads of Prosecutions Committee Working Group, September 2004:
Photo pack line-up
• The photo pack should contain at least 10 subjects.
• The photos should resemble as closely as possible the eyewitnesses’ description. If that is not possible, the photos should be as close as possible to the suspect.
• Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.
• Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
• The photo pack must be presented sequentially and not as a package.
• In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
• Police officer should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
• It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.
[53] While the Sophonow Inquiry recommendations do not themselves have the force of law, they provide useful guidance for eyewitness identification cases as noted in R. v. Goulart-Nelson, [2004] O.J. No. 4010 (C.A.) at para. 11:
Much emphasis was placed by counsel for the appellant on the recommendations made in the Sophonow Inquiry. Those recommendations are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification. However, as stated by Arbour J. in R. c. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445:
What will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases.
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