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Canadian Criminal Law/Identity

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General

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Identity of the accused person is always a required element to be proven for a given offence. As with all essential elements, it must be proven beyond a reasonable doubt.

It can be proven by way of the following methods, none of which are necessarily determinative:

  • an eye-witness who IDs the accused as person seen committing the offence
  • exclusive opportunity
  • security system photographs/video
  • voice identification
  • finger prints
  • foot prints
  • DNA

Eyewitness identification

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Courts are very cautious of eyewitness evidence as it is considered “inherently unreliable”[1] as there are “dangers inherent in eyewitness testimony”.[2] It is “well-established” that the "frailties" of eyewitness identification "can lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”.[3] Even honest witnesses may misidentify individuals.[4] Consequently, identification evidence is treated differently than other evidence and special care and caution should be taken.[5] Judges are required to give special cautions when considering identification evidence.[6] This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.[7]

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”. [8]

  1. ↑ R v Goran, [2008 ONCA 195 http://canlii.ca/t/1w6gw], [2008] OJ No. 1069 (ONCA) at 19
  2. ↑ R v Miaponoose 1996 CanLII 1268 (ONCA), (1996), 30 O.R. (3d) 419 at p. 421
  3. ↑ R v FA 2004 CanLII 10491 (ONCA) at para 39
  4. ↑ R. v. Quercia 1990 CanLII 2595 (ONCA) at 389
  5. ↑ e.g., R. v. Trochym, 2007 SCC 6 [2007] S.C.J. No. 6, at para. 46;
    R. v. Burke, 1996 CanLII 229, [1996] S.C.J. No. 27, at para. 52;
    R. v. Spatola, [1970] 3 O.R. 74 (C.A.), at 82,
    R. v. Miaponoose 1996 CanLII 1268 (ON CA), (1996), 110 C.C.C. (3d) 445 (Ont. C.A), at 450-1;
    R. v. Tat and Long 1997 CanLII 2234 (ON CA), (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at 516;
    R. v. F.A., 2004 CanLII 10491 [2004] O.J. No. 1119, at para. 39 (C.A.)
  6. ↑ R. v. Hersi, 2000 CanLII 16911, [2000] O.J. No. 3995 (C.A.) at para. 14
    R. v. Tat 1997 CanLII 2234 (ON CA), (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at pp. 515-16
  7. ↑ R. v. Turnbull et al (1976), 63 Cr. App. R. 132
    see also:
    R. v. Sophonov (No.2), 1996 CanLII 104, (1986), 25 C.C.C. (3d) 415 (Man. C.A.)
    R. v. Shermetta, 1995 CanLII 4193 [1995] N.S.J. No. 195 (C.A.),
    R. v. Atwell (1983), 25 Alta. L.R. (2d) 97 (Alta. C.A.)
    R. v. Nikolovski 1996 CanLII 158, (1996), 111 C.C.C. (3d) 403 (S.C.C.)
  8. ↑ R v Goran [2008 ONCA 195 http://canlii.ca/t/1w6gw] at para. 20
    R. v. Harvey 2001 CanLII 24137 (ON CA), (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 19

Weighing identity evidence

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Bald assertions of identity by witnesses should be given little weight. The court should consider the foundation of the statement including the opportunity and ability to observe. [1]

It has been recommended that cases resting entirely on eyewitness testimony should require the judge to do the following: [2]

  1. recognize the danger of convicting based on eyewitness identification only;
  2. note the significant factors which may have affected the identification; and
  3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."[3]

The fundamental factors affecting the weight of eyewitness evidence are: [4]

  1. opportunity to observe
  2. light conditions
  3. the distance from the witness to the suspect
  4. the eyesight of the witness
  5. colour perception
  6. previous acquaintance with the accused
  7. focus of attention or distraction
  8. presence or absence of distinctive features or appearance of the suspect/accused

Extra caution should be taken where the witnesses had a limited opportunity to observe and the confirmative opportunity occurred while the accused was under arrest.[5]

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in accuracy of observations.[6]

  1. ↑ R. v. Tatham 2002 MBQB 241, [2002] M. J. No. 370, 167 Man. R. (2d) 152 at 9
  2. ↑ R. v. Bigsky, 2006 SKCA 145, 217 C.C.C. (3d) 441, at para. 70
  3. ↑ R v Miaponoose 1996 CanLII 1268 (ON CA)
  4. ↑ R. v. Wilband, 2011 ABPC 298 at para 16
    R v Miaponoose 1996 CanLII 1268 (ON CA)
    Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802 at 24
  5. ↑ R. v. Hume, 2011 ONCJ 535 (CanLII) at 14
    R. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.)
  6. ↑ R. v. Francis, 2002 CanLII 41495 (ON CA)

Line-ups

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The key rule in giving a photo line-up is that the procedure is fair.[1]

It was recommended in the Sophonow Inquiry that in order to avoid false identification through line-ups the procedure should include the following:[2]

  • 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 videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
  • The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
  • The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
  • The photopack should be presented sequentially, not all together.
  • Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.[3]

Other factors considered include:

  • evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph.[4]
  • opportunity for the witnesses to see the perpetrator;
  • familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.[5]

The prior familiarity of the witness to the accused is a factor that goes to weight.[6]

  1. ↑ R. v. Shermetta (1995), 141 N.S.R. (2nd) 186 - leading case on procedure in NS
  2. ↑ Justice Peter Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Entitlement to Compensation at pp. 31-34 (2001)
  3. ↑ R. v. MacKenzie, 2003 NSPC 51
  4. ↑ e.g. R. v. Smith (1952), 103 C.C.C. 58 (Ont. C.A.)
  5. ↑ R v Doyle, 2007 BCCA 587 at 10 to 15
    R. v. Gonsalves 2008 CanLII 17559 (ON SC), (2008), 56 C.R. (6th) 379, [2008] O.J. No. 2711 (Ont. Sup. Ct.), at paras. 44, 45 and 53
    R. v. Le, 2011 MBCA 83, 270 Man. R. (2d) 82, at paras. 132 to 135
  6. ↑ See R. v. Cachia (1953), 107 C.C.C. 272 (Ont. C.A.)
    R. v. Todish, (1985), 18 C.C.C. (3d) 159 (Ont. C.A.)
    R. v. Leaney 1987 ABCA 206 (CanLII), (1987), 38 C.C.C. (3d) 263

Video identification

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A witness can testify to the contents of a video establishing identity of the accused without showing the video. It is generally considered akin to actual observations.[1]

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video.[2] A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.[3]

A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.[4]

  1. ↑ Taylor v. Chief Constable of Cheshire (1987) 84 Cr. App. R. 191
  2. ↑ R. v. Leaney 1987 ABCA 206 (CanLII), (1987) 38 CCC 263 Alta. C.A.
  3. ↑ R. v. Briand, 2008 ONCJ 777
  4. ↑ R. v. Leaney, 1989 CanLII 28, [1989] 2 S.C.R. 393

Dock identification

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Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.[1]

  1. ↑ F.A., 2004 CanLII 10491 at para. 47
    R. v. Izzard, (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at pp. 255-6

Recognition

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Courts have generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.

Recognition, however, is not a distinct category from identification.[1] Rather they are at different points on a spectrum of reliability.[2]

In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on[3]

  1. the length of the prior relationship between the witness and the accused;
  2. the circumstances of the prior relationship between the witness and the accused; and,
  3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."[4]

Before a person can claim to recognize a person they must establish that they had a prior opportunity to personally observe the accused and become acquaintanced with him.[5]

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"[6]

Recognition evidence is considered more reliable and has more weight than identification evidence.[7]

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.[8]

  1. ↑ R v Smith 2011 BCCA 362
  2. ↑ R. v. Mclsaac, [1991] B.C.J. No. 3617 (C.A.)
  3. ↑ R. v. Anderson et al., 2005 BCSC 1346 (CanLII) at paras. 20 and 25-26 (S.C.)
  4. ↑ Anderson at para. 25
  5. ↑ R. v. P.T.C., 2000 BCSC 342 (CanLII)at para. 22, 67
  6. ↑ R v Smith 2011 BCCA 362
  7. ↑ R. v. Bob (C.C.), 2008 BCCA 485, 263 B.C.A.C. 42 at para. 13
    R. v. Aburto (M.E.), 2008 BCCA 78 at para. 22
    R. v. Affleck (A.), 2007 MBQB 107
    R. v. R.R.I., 2012 MBQB 59
  8. ↑ R. v. Rybak 2008 ONCA 354 at para. 121

See also

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