Identification Evidence

R. v. MacDonald, 2014 ONCA 610:

[11]       The sole issue at this trial was identification and the only evidence linking the appellant to the alleged offences was that of the witness Reeves. In these circumstances, a careful instruction on identification evidence was required. In my view there were several significant deficiencies in the trial judge's instruction to the jury on the issue of identification and the cumulative effect of those errors is fatal to the convictions.

[12]       First, the trial judge failed to warn the jury of the limited weight to be accorded to the in-dock identification. As explained in R. v. Hibbert, [2002] 2 S.C.R. 445, at para. 50: "[T]he 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." The respondent points out that at trial, the Crown did not rely on the in-dock identification in his closing address to the jury. In my view, that did not absolve the trial judge of the duty to give the usual instruction.

[13]       Second, the trial judge failed to warn the jury that the photo lineup identification could have been contaminated by the identification at the 7/11 store. Reeves did the photo lineup within days of the meeting at the 7/11 store and the jury should have been cautioned that the reliability of her identification of the appellant as the robber could be undermined by the more recent encounter. The respondent points out that this issue was raised by defence counsel in his closing submissions. Again, however, that did not absolve the trial judge of the duty to explain the risk of contamination.

[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 Reeves' evidence.

[15]       Fourth, even the caution that the trial judge did give was undermined when he instructed the jury to "use your common sense" and to look at Reeves' "reaction" to the photo lineup when considering the significance of what he described as certain "considerable differences" in the description she had given of the assailant. While juries are generally encouraged to use their common sense, the very reason for special caution with respect to identification evidence is that such evidence poses problems that fall outside the common experience and knowledge of jurors. There is a risk that by using what appears to be "common sense", jurors will give eyewitness identification weight that it does not deserve. In my view, in the circumstances of this case, the jury could have understood this part of the trial judge's instruction to be an invitation to put weight on the level of Reeves' confidence in her identification of the appellant, which is the very matter that the jury should have been cautioned against.

[16]       Fifth, the trial judge failed to instruct the jury that the fact the appellant has blue eyes could be sufficient to exclude her as the assailant given the emphasis placed by Reeves on the strikingly dark eyes of the assailant.