Les règles générales d'admissibilité de la preuve, dans le contexte d'une parade d'identification

R v Wahabi, 2024 MBCA 70 

Lien vers la décision

[256]                 Evidence that is relevant to an issue at trial is admissible if it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it (see R v Schneider, 2022 SCC 34 at para 36 [Schneider]). A trial judge may exclude evidence if its prejudicial effect exceeds its probative value or if its admission would result in an unfair trial because of the manner in which the evidence was obtained despite the absence of a Charter breach (see ibid at para 59; R v Pearce (ML), 2014 MBCA 70 at para 61).

[257]                 As explained by Rowe J in Schneider, properly crafted jury instructions can reduce the likelihood that the jury will misuse the evidence. He stated: “Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put” (ibid at para 59).

[258]                 There was no issue in this case that the photo lineup identification was relevant; it was the only evidence identifying Wahabi. Nor did Wahabi argue that the evidence was inadmissible due to an exclusionary rule.

[259]                 The trial judge’s conclusions that there was no unfairness in the photo lineup process and that the prejudicial effect of the photo lineup identification did not outweigh its probative value are discretionary decisions entitled to deference (see ibid at paras 59, 62).

[260]                 We are not persuaded that the trial judge committed any error in principle in admitting the photo lineup identification or that her decision is so clearly wrong as to amount to an injustice (see R v Ramos, 2020 MBCA 111 at para 136).

[262]                 The trial judge understood that in The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) [the Sophonow Inquiry], The Honourable Peter Cory recommended “[t]hat the photos in the photo pack should resemble as closely as possible the eye witness’s description”. Relying on R v Pelletier, 2012 ONCA 566 and R v Doyle, 2007 BCCA 587, she determined that “a failure to follow [the Sophonow Inquiry recommendations] does not result [as] a matter of course in the exclusion of photo pack evidence.”