Monday, April 13, 2015

The inherent frailties in identification evidence

R. v. Olliffe, 2015 ONCA 242:

[36]       The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.

[37]       The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.

[38]       Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.

[39]       The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.

[40]       In the context of jury trials, courts in this province have consistently ruled that the jury must be warned of the frailties of eyewitness identification even in cases of recognition evidence: R. v. Curran, 2004 CanLII 10434 (Ont. C.A.), at para. 26;R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A.), at pp. 150-151; R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 42.

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