R v Clark, 2022 SKCA 36
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[72] The “danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented” (R v Hibbert, 2002 SCC 39 at para 51, [2002] 2 SCR 445 [Hibbert], referring to Peter deCarteret Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) at 31–34). Justice Doherty has stated that the “spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law” (R v Quercia (1990), 1990 CanLII 2595 (ON CA), 60 CCC (3d) 380 at 383 (Ont CA)). David Tanovich, Louis Strezos and S. Casey Hill, McWilliams’ Canadian Criminal Evidence, loose‑leaf (Rel 2021‑No 1) 5th ed (Toronto: Thomson Reuters, 2013) at para 32:10 fn 6, say, with reference to international jurisprudence, that “[s]imilar cautions are universally accepted”.
[73] Hibbert provides direction to courts on how to approach the type of eyewitness evidence that lies at the heart of this appeal – what is often referred to as “in-dock” identification testimony. More specifically, the case has led to a requirement that jurors be given “what is known as a Hibbert instruction”, going beyond standard cautions, in situations where there is suspect in-court identification testimony (R v Jack, 2013 ONCA 80 at para 31, 294 CCC (3d) 163 [Jack]). This Court summarized the effect of Hibbert in R v Bigsky, 2006 SKCA 145, 217 CCC (3d) 441 [Bigsky]:
[26] The Supreme Court of Canada in Hibbert found that the trial judge should have cautioned the jury more strongly that the identification of the accused in court was highly problematic as direct reliable identification of the perpetrator of the offence. The Court noted the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. An instruction that such identification should be accorded “little weight” was found not to go far enough to displace the danger that the jury could still give it weight that it does not deserve. Moreover, it should also have been stressed that the impact of the victim having seen the accused arrested by the police as her alleged assailant could not be undone. And this was so even though the trial judge had addressed the frailties of the identification evidence. The Supreme Court of Canada allowed the appeal and ordered a new trial.
(Footnotes omitted)
I find it helpful in explaining my reasons to carefully examine Hibbert and several of the cases that have applied it.
[78] Notwithstanding this very strong warning about the frailties of the in-court identification of Mr. Hibbert by these two witnesses, the majority of the Supreme Court was of the view that a stronger caution was warranted. Justice Arbour, speaking for that majority, stated as follows:
[50] I am of the view that, in the circumstances of this case, the trial judge should have cautioned the jury more strongly that the identification of the accused in court, by Mrs. McLeod and Mrs. Baker, was highly problematic as direct reliable identification of the perpetrator of the offence. I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded “little weight”, goes far enough to displace the danger that the jury could still give it weight that it does not deserve.
(Emphasis added)
[79] The inherent limitations of in-court identification evidence were, of course, recognized before Hibbert. In R v Spatola (1970), 1970 CanLII 390 (ON CA), 4 CCC 241 at 249 (Ont CA), Laskin J.A. (as he then was) referred to empirical studies that have “shown the progressive assurance that builds upon an original identification that may be erroneous”. In R v Izzard (1990), 1990 CanLII 11055 (ON CA), 54 CCC (3d) 252 at 256 (Ont CA), Morden J.A. (as he then was) cited a line of appellate-level cases stretching back to the 1940s. He adopted the statement made in the Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976) at 150 that it “is generally agreed that dock identification is undesirable and unsatisfactory”.
[80] Since Hibbert, appeal courts have emphasized that a caution – going beyond a general one relating to the frailties of eyewitness identification evidence, and instead specifically directed to instructing jurors as to the dangers of placing reliance on in-court identification testimony – is required in cases where the in-court identification is suspect. In R v Pelletier, 2012 ONCA 566 at para 93, 291 CCC (3d) 279, Watt J.A. stated, with reference to many authorities dating from before and after Hibbert, that “as a general rule, in-dock identifications are entitled to little weight in the assessment of the adequacy of the prosecution’s proof on the issue of identity”. I will give several additional examples of cases where general instructions relating to the frailties of eyewitness identification evidence were found to be insufficient and jury charges were held to be deficient because jurors were not adequately cautioned about the dangers of in-court identification testimony.
[81] R v Tebo (2003), 2003 CanLII 43106 (ON CA), 175 CCC (3d) 116 (Ont CA) [Tebo] involved an appeal from convictions after the robbery of a taxi driver by two men. One perpetrator sat in the front seat of the taxi. The other sat in the back seat. The driver was not able to describe the man in the back seat to the police. For that reason, he was not shown a photo line-up. At trial, the driver said only that the man in the back seat was a little shorter and thinner, and his skin was darker, than the man in the front seat. Crown counsel did not directly ask the driver in examination‑in‑chief to identify the accused, but the witness did point to Mr. Tebo as the person who had entered his taxi. In cross-examination, the driver reiterated that the man in the back seat had darker skin and said that he had seen the man in the back seat for only two or three seconds. He agreed that he could not describe the man’s face or clothing in any way.
You will recall that Dosanjh when he gave evidence, in-chief dealing with the identify of Tebo as the person who entered the back seat, said he saw the person in the back seat very briefly. Also, pointing out a witness seated in the courtroom where one expects a defendant to be found is not especially strong identification evidence taken by itself. So if you find that Dosanjh’s evidence is really nothing more than the expression of an opinion, and then it is not based on true recognition, that does not provide a safe basis for a guilty verdict. If that is the case, you should attach little weight to the identification evidence of Dosanjh.
Recognition is complicated, and usually we don’t think about how we recognize people that we have never seen before, and we take it for granted that we can tell the difference between one person and another. In a criminal case, you can’t afford to be casual about the identification of one person by another. Consider carefully what I’ve said to you about the evidence of an eye witness, because you cannot return a verdict of guilty based on eye witness evidence alone, unless you are satisfied beyond a reasonable doubt that the eye witness correctly identified Tebo as the person who was in back seat of his taxi cab.
[83] Like in Hibbert, in Tebo, the Ontario Court of Appeal found that a more specific warning was required about the in-court identification testimony than had been given by the trial judge. After reviewing Hibbert, Feldman J.A. concluded as follows:
[19] In this case, the trial judge provided the jury with extensive instructions about the frailties of eyewitness identification evidence. However, she did not segregate and list for the jury the particular problems with the taxi driver’s ability to observe the back seat perpetrator during the robbery, the inconsistencies in the history of the identification and the specific dangers of in-dock identification. Even assuming the jury was entitled to consider the in-dock identification at all, this was a case where the jury should have been forcefully told that they could give virtually no weight to it. The trial judge’s charge relating to the in-dock aspect of the identification was inadequate. It did not point out the reason why in-dock identification can be so compelling, and left it to the jury to use the evidence fully if they were satisfied that it was based on true recognition.
(Emphasis added)
Having noted that the trial judge failed to provide an appropriate caution with respect to the in‑court identification of the accused, the Court in Tebo ordered a new trial, even though the Crown had presented what the Court described as a “strong circumstantial case” (at para 21).
[84] R v MacDonald, 2014 ONCA 610 [MacDonald] was an appeal from a conviction for a home-invasion robbery. The appellant was convicted at trial of being one of two participants in the crime. One of the victims gave statements that described the assailant in detail, including by providing an estimate that the perpetrator was 5’9” tall, stating that she was of “good complexion” and had “big brown eyes” (in one statement) and “very dark eyes” (at para 4). Approximately six weeks after the robbery, the victim saw the appellant at a 7/11 convenience store and identified her as one of the robbers, noting her “height as at least six feet tall and stat[ing] that she recognized her dark eyes and cocky attitude” (at para 4). Using the licence plate number of the vehicle driven by the appellant, the police were able to arrest her. A few days later, the victim picked the appellant’s photograph from a photo line‑up. She “reacted with some shock or surprise when she saw the photograph and identified her both as the person she saw at the 7/11 store and as the person who committed the robbery” (at para 3). At trial, the victim testified that “the robber had light brown or dirty blonde hair, dark eyes and some marks on her face, which may have been acne or sores” (at para 4). She also made an in-dock identification of the appellant. The appellant had blue eyes.
[85] The Ontario Court of Appeal noted several deficiencies in the jury charge. The first was that “the trial judge failed to warn the jury of the limited weight to be accorded to the in-dock identification” (at para 12). The Court made this finding, even though the trial judge had given a warning that honest witnesses can give mistaken evidence:
[14] Third, while the trial judge did explain that it is possible for an honest witness to make an identification error and that an apparently convincing witness can be mistaken, his instruction fell short of a caution along the lines mandated by R. v. Hibbert, at para. 52, as to the “very weak link between the confidence level of a witness and the accuracy of that witness”. See also R v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 31. In my view, such a caution was required in the circumstances of this case, where the entire case against the appellant rested on the reliability of [the victim’s] evidence.
[86] R v Phillips, 2018 ONCA 651, 364 CCC (3d) 220 [Phillips] involved the appeal of a man alleged to have been one of three people who had committed a home invasion. Two of the perpetrators did not cover their faces and referred to each other by their first names during the course of the crime. The third covered his face and was described by witnesses as “the black man” (at para 9). Mr. Phillips was alleged to be that person. No physical evidence linked him to the crime scene, although he was identified via police photo line‑up by one of the two admitted perpetrators who knew him by way of an alias nickname.
[89] Three important points emerge from Phillips. The first is that the submissions of counsel were not accepted by the Court as being a substitute for a proper caution by the trial judge on issues relating to the in-court identification of the accused. As Huscroft J.A. stated:
[27] The appellant’s trial counsel made strong submissions on the issue in his closing address to the jury, but they were just that: submissions. It was the responsibility of the trial judge to instruct the jury, having regard to counsel’s submissions, and she failed to do so. Her silence on the point may well have undermined counsel’s submissions by failing to endorse them.
[90] Second, the Court in Phillips rejected the Crown’s suggestion that the trial judge’s general instructions concerning eyewitness identification were sufficient to combat issues relating to the in-court identification of the accused. Justice Huscroft stated as follows:
[30] I do not accept the Crown’s submission that the trial judge’s instructions concerning the frailties of eyewitness identification overlapped the in-dock identification issue, and so obviated the need for specific instructions on the in-dock identification issue. It cannot be said that the message was “broadcast and heard, loud and clear, through the trial judge’s instructions”, as the Crown contends.
[91] Third, the circumstances surrounding the in-court identification of the accused warranted a sharp instruction from the trial judge. In the view of the Court in Phillips, the instruction that was required went beyond what was contemplated in Hibbert. Justice Huscroft explained this conclusion as follows:
[28] In my view, the circumstances surrounding the in-dock identification in this case are egregious. The in-dock identification of the appellant may have seemed strong compared to the other eyewitness evidence, but it was not. Months after the traumatic events, the victims identified in court a man they had not been able to describe with any significant degree of detail immediately following those events – a man they had not identified from a photo lineup because it “never occurred” to the police to administer a photo lineup for them. There was one black man to choose from in court: a black man they knew was charged with having committed the crimes. The man the police said did it.
[29] This was highly prejudicial, and an instruction to give the in-dock identification little weight would not have been sufficient to prevent the risk that the jury would give the identification more weight than it deserved, especially given the compounding effect multiple identifications could be expected to have. In these circumstances, nothing less than an instruction that it would have been dangerous to rely on the in-dock identification would do.
[92] The Court in Phillips concluded that the accused had been “entitled to a proper instruction concerning in-dock identification and did not get one. The trial judge’s failure to instruct the jury concerning the dangers of in-dock identification is an error that undermines the fairness of the trial” (at para 32). Notably, the Court also identified several other issues with the eyewitness identification evidence that had been presented to the jury.
[93] I will end my review of the case law with reference to two cases relied upon by the Crown in its factum, namely, R v Sarrazin, 2016 ONCA 714 [Sarrazin 2016] and R v Ryback, 2008 ONCA 354, 171 CRR (2d) 306 [Ryback].
[94] Sarrazin 2016 involved an appeal following a second trial of an accused. In reasons authored by Gillese J.A., the Ontario Court of Appeal referred to its earlier decision in R v Sarrazin (2005), 2005 CanLII 11388 (ON CA), 195 CCC (3d) 257 (Ont CA) [Sarrazin 2005] as finding that the in-dock identification was not at issue and that no warning was required. However, Sarrazin 2005 was clearly decided on the specific evidentiary context of that case. Unlike here, the accused was not being identified for the first time at trial. This important point lay at the heart of why, in Sarrazin 2005, the Ontario Court of Appeal found that there was no need for a special warning. In this regard, Blair J.A. explained as follows:
[113] … Finally, I do not see this as a situation where a warning about in-dock identification was required, as the appellants had previously been identified and this was not a classic case of in-dock identification where the person was being identified in court for the first time as the perpetrator of the crime.
[95] Turning to Sarrazin 2016, the Court noted at paragraphs 50–52 that the trial judge had raised issues relating to in-dock identification with the jury in his charge. While the Court found that a stronger warning was not required in that case, I do not take the Court as suggesting that the need for a Hibbert instruction is lessened where eyewitness identification evidence does not take center stage in the Crown’s case. The Court distinguished Hibbert on the basis that the case against the accused in Sarrazin 2016 “does not rely entirely on eyewitnesses who were total strangers to the accused and who saw him only briefly” (at para 53). This is the opposite of the situation now before this Court.
[96] The Crown also relies on Ryback. In it, Watt J.A. noted that “[t]he prosecution’s case against the appellant was circumstantial, including evidence of motive, opportunity and post‑offence conduct” (at para 7). In his charge to the jury, the trial judge offered instructions that “eschewed non-essentials and offered jurors a balanced account, including the most important points developed in cross-examination” (at para 110). Unlike in this case, the trial judge in Ryback had offered a specific caution in relation to the in-court identification testimony. In his charge, the trial judge noted “the absence of any real evidentiary value from the in‑dock identification” (at para 111). Relying on Hibbert, Watt J.A. found that “[t]he circumstances of the in-dock identification of the appellant … obligated the trial judge to strongly caution the jurors about the dangers inherent in this superficially cogent evidence” (at para 114). Justice Watt concluded that the trial judge’s warning had been adequate. This conclusion was reached for two main reasons. First, the accused’s counsel had not objected to the caution that was provided. Second, the trial judge’s charge adequately captured the accused’s position on the evidence suggesting that it was unreliable and should be rejected. In addition, Watt J.A. made the following point:
[116] The adequacy of instructions to alert jurors to the frailties associated with evidence of an in-dock identification will depend on the circumstances revealed in individual cases. What is adequate to the task in one instance may well be deficient in another.
[97] These cases all recognize that in-court identification testimony brings with it special concerns and very often requires as a matter of law that juries be provided a special caution about the dangers and limitations of such testimony that goes beyond an instruction relating to the dangers and frailties of eyewitness identification evidence generally. In stating this, I wish to make three things clear.
[98] First, I am not saying that the facts of this case are identical to those in Hibbert or the other cases that I have reviewed. The reality that the facts are different simply reflects the endless variety and unpredictability of human conduct and experience. As I will explain, the concerns that led to the requirement for an additional and specific caution in those other cases also exist in the circumstances here.
[99] Second, I would not want these reasons to be read as suggesting that an in-dock identification of an accused person is in most cases impermissible. To the contrary, it is often required. In Hibbert, Arbour J. said that, in that case, the in-court identification “served to confirm that the accused was, in the opinion of Ms. McLeod and Ms. Baker, the same man they saw throughout the chain of events (from arrest through to the second trial)”. For that reason, “[i]n that sense, despite its almost total absence of value as reliable positive identification, the evidence of the witnesses may be given some weight at least for that purpose” (at para 49, emphasis added). Indeed, the law recognizes that in-court identification may be required as a precondition to the admission of prior identification evidence: R v Tat (1997), 1997 CanLII 2234 (ON CA), 117 CCC (3d) 481 at paras 40 and 46–50 (Ont CA). However, as Doherty J.A. explained in Tat, the value, if any, of an in-court identification is inherently tied to what supports that testimony:
[36] Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification: e.g. R. v. Langille, supra, at 555; Di Carlo v. United States, 6 F.2d 364 (2d cir. 1925) at 369, per Hough J., concurring; Clemons v. United States, 408 F.2d 1230 (D.C. cir. 1968) at 1243. The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of cases which have considered the reasonableness of verdicts based upon identification evidence: e.g. see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.).
[37] If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.
(Emphasis added, footnote omitted)
Justice Doherty’s reasons were later described by Iacobucci J. as “lucid” (R v Starr, 2000 SCC 40 at para 221, [2000] 2 SCR 144 [Starr]).
[100] Third, I do not wish to be understood as saying that in all cases where an in-dock identification has been made the jury must receive a so-called Hibbert instruction. The unique circumstances of each case must be considered to assess whether a specific caution is required, and if so, what that caution should consist of. As Arbour J. explained, “[w]hat 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” (Hibbert at para 53).
[101] I find it to be neither necessary nor appropriate to attempt to construct an exhaustive list of criteria as to when a Hibbert-type instruction is required. However, several principles emerge from the case law that I have reviewed and guide me in this case. In this regard, juries should receive a caution about the dangers of an in-court identification when the first actual identification of an accused occurs in court. Beyond this, consideration of when a special caution is required, and what it must contain, begins with an understanding as to what prior identification a witness has made of the accused before testifying. Account must also be taken of the quality or basis for such identification. Finally, attention must be paid to the opportunities that exist for that identification to change over time, and why that might be the case. As is evident from the case law I have reviewed, the reasons why these are paramount considerations are that the evidentiary value of the in-court identification is a direct product of these three factors and, conversely, the dangers associated with an in-court identification increase as the quality of any pre-testimony identifications decreases.
[149] I begin with the simple, but important, observation that the judge did not give the jury the specific cautions about the evidence of Mr. Williams and Ms. Holmgren that, I conclude, the circumstances here demanded. The judge did not tell the jury, in the strongest terms, that it was required to approach Mr. Williams’s in-court identification evidence with extreme caution and explain to it why this is the case. The judge did not forcefully tell the jury that it could give virtually no weight to Mr. Williams’s in‑court identification of Mr. Clark as the man he saw assault Mr. Durocher. The judge also did not caution the jury at all about Ms. Holmgren’s in-dock identification or instruct the jury that it would be very dangerous to attribute to Ms. Holmgren’s in-court identification of Mr. Clark any degree of certainty greater than what she had communicated to police on October 2, 2016.
