[47] In R.
v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17, Epstein
J.A. provides a useful summary of the applicable legal principles governing
jury instructions relating to eyewitness identification evidence:
The jurisprudence is replete with
guidance about how the jury should be instructed in cases where identity is the
issue and where, as here, the Crown' s
ability to satisfy the jury that it was the accused who committed the crime
depends on eyewitness identification.
The dangers inherent in
eyewitness identification evidence and the risk of a miscarriage of justice
through wrongful conviction have been the subject of much comment. Such evidence,
being notoriously unreliable, calls for considerable caution by a trier of
fact.
It is essential to recognize that
it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The
danger is an honest but inaccurate identification.
The jury must be instructed to
take into account the frailties of eyewitness identification as they consider
the evidence relating to the following areas of inquiry. Was the suspect known
to the witness? What were the circumstances of the contact during the
commission of the crime including whether the opportunity to see the suspect
was lengthy or fleeting? Was the sighting by the witness in circumstances of stress?
As well, the jury must be
instructed to carefully scrutinize the witnesses'
description of the assailant. Was it generic and vague, or was it a detailed
description that includes reference to distinctive features of the suspect? In
some cases, a failure to mention distinctive characteristics of a
suspect is sufficiently important, especially where there is no other
inculpatory evidence, to reduce the case from one of identification effectively
to one of no identification.
Finally, the charge must caution
the jury that an in-dock or in-court identification is to be given negligible,
if any, weight. [Citations omitted, emphasis in original.]
[48] I am mindful
of the fact that, unlike the present case, Jack was a
situation in which the Crown’s case depended solely on eyewitness
identification evidence.
[49] Moreover, I
agree with the Crown’s submission that where the Crown’s case does not depend
solely on eyewitness identification evidence, but also includes other evidence
implicating the accused, trial judges are to be given considerable latitude in
determining the nature of the caution about eyewitness identification evidence
to be given to the jury. In some cases, a general warning as to the dangers of
eyewitness identification evidence will suffice: R. v. Baltovich (2004),
73 O.R. (3d) 481 (C.A. ),
at para. 78.
[50] Nonetheless,
where eyewitness identification evidence contains significant frailties, even
in situations where there is other evidence implicating an accused, it may be
incumbent on the trial judge to caution the jury as to those specific frailties
and not rely on a general “boilerplate” instruction: R. v. Baltovich,
at para. 78.
[51] In this case,
the appellant has identified several important frailties in the eyewitness
identification of the appellant as the black perpetrator in the first robbery
and one of the black perpetrators in the second robbery to which I have already
referred:
· the generic
descriptions of the black perpetrator and his clothing provided by the
eyewitnesses;
· the
inability of any of the eyewitnesses to explain what features of the appellant
led them to identify him as the perpetrator;
· the failure
of any of the eyewitnesses to describe the perpetrator as having any of the
distinguishing features possessed by the appellant at the time of his arrest
(facial hair; distinctive hat and jacket);
· Mr. Alomi’s
description of the perpetrator as being taller than he is, when, in fact, the
appellant is shorter than he is.
[52] At para. 29 of Jack,
Epstein J.A. observed that "eyewitness identification evidence has
taught us to use discriminating scrutiny for badges of unreliability” and that
“one such ‘badge’ is whether a witness'
description of the suspect fails to include mention of a distinctive feature of
the accused” [citations omitted]. She noted that, in that case, the caution
provided by the trial judge:
simply advise[d] the jury to consider the impact of the
evidence that the victims did not notice the appellant' s
distinctive features. It d[id] not caution them to take this factor into
consideration together with the generic description they provided to the police
in performing their critical analysis of assessing the reliability of the
identification evidence upon which the Crown' s
case wholly depended.
…
[55] In some cases,
circumstantial evidence implicating an accused will be so strong that evidence
of mere resemblance between an accused and a perpetrator will be enough to
complete the circle of proof and strong cautions about specific frailties in
eyewitness identification evidence may not be necessary. In my opinion, the
circumstantial evidence in this case did not reach this threshold.
[56] Although
compelling, the circumstantial evidence in this case did not eliminate the need
for proper instructions highlighting the deficiencies in the eyewitness
identification evidence where: the appellant and Chamberlin were found in the
company of two other men not identified as perpetrators; there was no forensic
evidence connecting any of the four men outside the apartment complex to the
recent robbery; and where, unlike Chamberlin and one of the other men, the
appellant did not attempt to flee.
[57] In these
circumstances, in my view, the trial judge was required to not only provide the
jury with standard cautions relating to the dangers of eyewitness
identification evidence, but also to identify for the jury the specific
frailties in the eyewitness identification evidence that existed in this case.
If anything, rather than bringing home to the jury some of the frailties that
existed, the trial judge’s instructions minimized them.
…
[71] The
trial judge also failed to caution the jury that in-dock identifications are
generally to be afforded little weight (see R. v. Hibbert, 2002 SCC
39, [2002] 2 S.C.R. 445, at pp. 468-469, R. v. Pelletier, at para.
93). Moreover, when setting out the Crown’s position, he noted that the Crown
relied on the fact that the appellant “was picked out of the line-up and
visually in court”. Once again, the trial judge may have invited the jury to
rely on evidence that was of no probative value. The potential for prejudice
existed not only because of the combined impact of five in-dock
identifications, but also because Mr. Abdali did not make a pre-trial
identification of the appellant. His evidence, in particular, should have been
the subject of a forceful in-dock identification caution: see R. v.
Tebo (2003), 175 C.C.C. (3d) 116, at para. 20.
[72] Finally,
although the trial judge gave the jury some instructions about how to evaluate
the photographic line-up identification evidence, he did not refer to the
importance of the eyewitnesses reviewing the photographic line-up sequentially,
without taking the opportunity to compare photographs. He therefore did not
provide the jury with all the tools necessary to properly evaluate that
evidence. The fact that witnesses may have been cross-examined about that
issue, or that defence counsel may have referred the jury to that factor, does
not overcome the need for a judicial instruction where the need for caution
arises, at least in part, as a matter of judicial experience and not solely as
a matter of common sense.
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