R. v Downey, 2018 NSCA 33
[52] Ordinarily, “identification evidence” is used to describe the kind of evidence offered by eyewitnesses who are strangers to an accused but who later testify that the person on trial is the individual they observed at the scene of the crime, and which eyewitness reporting is perhaps later confirmed after pointing out that same individual in a police photo line-up during the course of the investigation.
[53] That kind of eyewitness identification evidence offered by strangers is to be distinguished from voice or visual identification evidence offered by witnesses who are “familiar” with the accused. Such evidence is properly characterized as “recognition evidence” because the witness is able to verify their identification of the accused from recognizing the voice and/or appearance of the accused based on their familiarity and interaction one with the other.
[54] A helpful explanation of this distinction can be found in the decision of the British Columbia Court of Appeal in R. v. Bob, 2008 BCCA 485 where Neilson, J.A., writing for a unanimous court said:
[13] … this was a case of recognition, rather than identification. There is a significant difference between cases in which a witness is asked to identify a stranger never seen by him before the offence, and cases in which a witness recognizes a person previously known to her. While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence: R. v. Aburto, 2008 BCCA 78; R. v. Bardales (1995), 1995 CanLII 2518 (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.), aff'd 1996 CanLII 213 (SCC), [1996] 2 S.C.R 461, 107 C.C.C. (3d) 194.
[Underlining mine]
[55] Recent observations by the Ontario Court of Appeal, per curiam, in R. v. Campbell, 2017 ONCA 65, are equally apt:
[10] This court has confirmed that "recognition evidence is merely a form of identification evidence" and, as such, "[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. This court also noted in that paragraph, however, that "[t]he level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence." Unlike cases involving the identification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and the opportunity for observation during the incident: R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 424, citing R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175, at p. 177. Recently, in R. v. Charles, 2016 ONCA 892, at paras. 50-51, this court noted the "critical difference" between recognition cases and cases involving identification by a witness of a complete stranger, and referred to the relevance of the "timeline of the identification narrative". See also R. v. Peterpaul (2001), 2001 CanLII 24119 (ON CA), 52 O.R. (3d) 631 (C.A.), at p. 638.
[56] The frailties of eyewitness testimony and the cautious careful scrutiny which must be given to it as a consequence, have long been understood. Identification experiments have demonstrated the fallibility of powers of observation, as have examples of wrongful convictions and imprisonment based on eyewitness testimony later shown to have been wrong.
[57] Our law recognizes the inherent dangers of identification evidence, especially where the witness appears both honest and convincing. Consequently, fact-finders (whether trial judges or juries) must be satisfied as to both the credibility and the reliability of the eyewitness testimony. As the Alberta Court of Appeal observed in R. v. Atfield, 1983 ABCA 44 at ¶ 3:
[3] The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases, where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. As is said in Turnbull, the jury (or the judge sitting alone) must be satisfied of both the honesty of the witness and the correctness of the identification. Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavorable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside. It should always be remembered that in the famous Adolph Beck case, twenty seemingly honest witnesses mistakenly identified Beck as the wrongdoer.
[58] Paciocco, J. (as he then was) makes the same point very well in R. v. Ambrose, 2015 ONCJ 813:
[4] The law is cautious with identification evidence, particularly when, as here, it is offered by strangers to the person being identified. Mistaken identification is known to have caused wrongful convictions and so decision-makers are required to exercise great care before acting on eyewitness opinions that the accused is the perpetrator: R. v. Goran 2008 ONCA 195; R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.), and see R. v. Bigsky (2006), 2006 SKCA 145 (CanLII), 45 C.R. (6th) 69 (Sask C.A.). In dealing with identification evidence, it is imperative that judges not focus solely or unduly on the credibility of identification witnesses, since neither their honesty nor confidence ensures accuracy: R. v. Candir 2009 ONCA 915 (CanLII), [2009] O.J. No. 5485. Most inaccurate identifications occur because honest identification witnesses are wrong. The reliability of identification evidence is therefore of deep concern, and deserves emphasis: R. v. Oliffe 2015 ONCA 242. A judge must recognize and allow for the fact that case-specific problems with the opportunity to observe the identified individual, as well as variable limits in the ability of witnesses to discriminate between individuals, or to recall details, contribute together to the risk that honest identification witnesses will be mistaken: R. v. Jack (2013) 2013 ONCA 80 (CanLII), 294 C.C.C. (3d) 163 (Ont. C.A), Peter DeCarteret Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001). In addition, the quality of description of the suspect by the witness requires attention: R. v. Jack, supra at para 14. If there are notable dissimilarities between features of the description and the accused, the identification will have no probative value without other evidential support: R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 19 C.R. (6th) 109 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 534, 2004 CarswellOnt 1325. …
[59] I endorse these statements of principle and will apply them in my consideration of the trial judge’s reasoning in this case.
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