Admissibility of non-expert “recognition evidence” deriving from the examination of a photograph or videotape

R. v. Berhe, 2012 ONCA 716 deals with the admissibility of non-expert "recognition evidence" deriving from the examination of a photograph or videotape. The Court holds:

[13]       It has long been accepted that non-expert, lay opinion to the effect that the witness recognizes the image of a person seen in a photograph or on videotape, based on a prior connection with that person, may be admissible in certain circumstances. This appeal is about the contours of the test for admissibility of that type of evidence.

[14]       In R. v. Brown, 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A. stated succinctly that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator." Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, [1989] 2 S.C.R. 393, at p. 413, for that proposition, which I would characterize as the "prior acquaintance/better position" test. I would re-affirm that test.