Identification Evidence

• Author: Matthew Gourlay/Brock Jones/Jill D. Makepeace/Glen Crisp/Renee Pomerance
• Pages: 613-666

CHAPTER 14

IDENTIFICATION EVIDENCE

I. Introduction ..................................................... 

II. Eyewitness Identification and Description ............................ 

A. The Reliability of Eyewitness Identification andDescription.......... 

. Considerations in Weighing Reliability ......................... 

B. Credibility Issues .............................................. 

C. Discrepancies and Dissimilarities in Description.................... 

D. Prior Statements of Identification or Description................... 

E. Photo-Pack Identification ...................................... 

. Gathering Evidence Through a Photo Pack..................... 

. Steps in Tendering Photo-Pack Identification Evidence .......... 

F. Real-Life Identification ......................................... 

G. Show-Up Evidence ............................................ 

H. Composite Sketch Identification................................. 

I. In-Court Identification ......................................... 

J. The Use of Prior Images of the Accused .......................... 

K. Expert Opinion Evidence Addressing the Reliability of Eyewitness

Identification ................................................. 

L. Instructing the Jury............................................ 

M. Sufficiency of Reasons ......................................... 

N. Counsel’s Role in Addressing Concerns with EyewitnessIdentification... 

. Role of the Crown .......................................... 

. Role of Defence Counsel .................................... 

III. Identification from Video Recordings orPhotographs.................. 

IV. Recognition Evidence ............................................. 

A. Recognition and Familiarity by an Eyewitness...................... 

B. After-the-Fact Visual Recognition Evidence . . . . . . . . . . . . . . . . . . . . . . . 

V. Voice Identification and Recognition ................................ 

A. General Principles and Factors to Consider ....................... 

B. Expert Opinion Evidence and Voice Identification .................. 

VI. Concerns Regarding Certain Forensic Comparative Techniques......... 

VII. Key Considerations ............................................... 

613

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I. INTRODUCTION

Identification evidence is “not all of one type.”1 It can be proven by way of both direct

and circumstantial evidence and ca n come in many different forms.2

Direct identification evidence is most commonly tendered through an eyewitness to

events who is able to identify the culprit to the police and, later, to the trier of fact at trial.3

Examples of circumstantial evide nce that have been relied on to prove identity include post-

offence conduct,4 evidence of opportunity and motive,5 similar fact evidence,6 and, as is

becoming more common, social media evidence.7 Conclusions derived from the analysis of

DNA and/or latent fingerprints left at a scen e can also provide compelling circumstantial evi-

dence.8 As recent inquiries and studies have shown , however, those who wish to rely on these

and other forensic comparison techniques to prove identity must proceed with caution.9

Identification of the accused as the person who committed the offence must be

proven in every case and established beyond a reasonable doubt based on the totality

of the evidence on offer.10 Although each individual item of evidence that addresses

identity does not need to be proven beyond a reasonable doubt, judges should be

careful to ensure that jurors examine the evid ence in a proper fashion.11 In cases where

there is only one piece of evidence that goes to ide ntity, for example, the evidence must

be accepted beyond a reasonable doubt to result in a conviction.12 Where the Crown

relies exclusively, or largely, on circumstantial evidence to prove identit y, the trier of fact

1 Meyers v R, 2008 NLCA 1 3 at para 23.

2 Rv Evans, 2005 NBCA 22 at para 5, refer encing Rv Charemski, 1998 CanLII 819 (SCC).

3 Rv Coutu,2008 MBCA 151 at para 6 6. Where a witness does not id entify anyone but merely pro vides a

general descr iption of an individu al or references an arti cle of clothing, for examp le, then this eviden ce, as

it relates to proof of ide ntity, should be considered ci rcumstantial in nature: Rv Habte, 2020 A BCA 476 at

para 24.

4 Rv White,2011 SCC 13 at paras 39, 63, 84.

5 Charemski, supra note 2 (motive and oppor tunity); Rv Czibulka, 2011 O NCA 82 at paras 11, 49-51, ref-

erencing Rv Yebes, [1987 ] 2 SCR 168 at 189-90 (motive and opportu nity); Rv Salah, 2015 ONC A 23 at

paras 64-66 (mo tive). Note, Mr Yebeswas recently acquit ted after a new trial was ordere d via ministerial

review (Code, s 696 .1). This was due to the wron gful conviction that occu rred as a result of issues wi th the

circumstantial e vidence that pointed to Mr Yebes as t he person who killed his c hildren.

6 See Chapter 7 for more on the adm issibility of simil ar fact evidence, in cluding the cases of Rv Hand y, 2002

SCC 56; Rv Arp, [1998] 3 SCR 339.

7 See Chapter 12 for examp les, including the case o f Rv Harris, 2010 PESC 32.

8 Rv Youssef, 2018 SCC 49; Habte, supra note 3 (both involving D NA evidence). See also R v Borny k, infra

note 348 (regardin g fingerprint eviden ce).

9 See Section VI for a detaile d discussion of this issue.

10R v Hill, 2005 NSCA 108 a t para 55; Rv Quidley, 2008 ONCA 501 ; Rv Atfield, 1983 ABCA 44 at pa ras 2-6.

11Jurors are (1) not to ad dress the evidence piecem eal and seek to apply the crimi nal standard to separate

pieces of eviden ce before doing so to the evidence a s a whole, and (2) not to examine evi dence in two

separate stage s, first sifting out fac ts they find to be true and reli able and then, in a second st age, using

only those fact s to reach their verdict: Quidley, ibid at paras 2 9-33, referencing Rv Morin,[1988 ] 2 SCR

345, 1988 CanL II 8, 44 CCC (3d) 193 at 210-11, Rv Mille r, 1991 CanLII 2704 at para 70 (Ont CA ). See also Rv

Chan, 2001 BCSC 1180 at pa ra 26 referencing Rv Rumbaut, [19 98] NBJ No 381 (QL) (NBQB); Rv Wee den,

2019 ONSC 1887 at para 6 8. See also Section II .L, below.

12Rv Hay, 2013 SCC 61, [2013] 3 SCR 694 at paras 40, 41 , 51; Rv Pinch, 2011 ONSC 5484 at par a 80, referenc-

ing Quidley, ibid at paras 26, 35; Weeden, ibid.

614MODERN CRIMINAL EVIDENCE

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must be persuaded beyo nd a reasonable doubt that the only reasonable inference to be

drawn from the evidence is that the accused is th e culprit as alleged.13

Identification evidence, particularly direct identification evidence, will generally not

be the subject of an admissibi lity inquiry.14 In most cases, concerns relating to the reli-

ability or quality of thi s type of evidence will be left to the trier of fact to resolve. 15 How-

ever, as with all evidence, there maybe case-specific exceptions that find root in the

judge’s residual discretion to exclude eviden ce where its prejudicial effect outweighs its

probative value.16 For example, where the relevance of identification evi dence depends

on similarities between a w itness’s observations of an individual and a composite ima ge

released by the police, scrutiny will be required prior to admission to ensure that such

evidence will not be used improp erly.17Inappropriate pre-trial identification procedures

may also render any subseque nt identification inadmissible where the unfairnes s to the

accused would be particularly acute.18

Where the identification evidence engages with other presumptively inadmissible

categories of evidence, an evidentiary hearing will be required. This will be the case,

for example, when considering the admissibility of certain out-of-court statements of

13Rv Villaroman,2016 SCC 33. The principles relating to th e use of circumstantial ev idence are addressed i n

Chapter 5. See al so Rv Spencer,2020 ONCA 838, a case that e xemplifies the limits of ci rcumstantial evi-

dence and the nee d for triers of fact to unde rstand that quantit y is not an analogue for q uality, particular ly

where the evide nce relied on is generic. It is w orth noting that, while the C rown case must be based on

the evidence, a rea sonable doubt need n ot arise from the eviden ce but can also arise from th e absence of

evidence or what th e Crown has failed to prove(Villaroman at paras 28 , 30).

14Rv Wang; Rv Lo, 2001 CanLII 20933, 153 CCC (3 d) 321 at paras 21-39 (Ont CA), referencing various cases.

15White, supra note 4 at par a 59; Mezzo v The Queen, [1986] 1 SCR 8 02, 1986 CanLII 16 at paras 61-63

(regarding eyewitness identification); Rv Miaponoose, 1996 Can LII 1268, 110 CCC (3d) 445 (O nt CA). Note,

if the identific ation is sufficiently wea k then it may be weighed by the j udge on a directed verdict a ccord-

ingly: Hay, supra note 12 at para 41. Also see Chan, supra note 11 at par a 28, referencing Rv Williams, 199 5

CanLII 695, 98 CCC (3d) 16 0 (Ont CA) [Williams 1995] (regarding th e weighing of voice identif ication, also

addressed in fu rther detail in Secti on V).

16Rv Baltovich, 2004 C anLII 45031 at paras 57, 61 (Ont CA), referencing Rv Seaboyer, [1991] 2 SCR 577; R v

Gagnon, 2000 CanLII 16 863 at para 89 (Ont CA); Rv Tat, 1997 Ca nLII 2234, 117 CCC (3d) 481 at note 4

(Ont CA); RvWalker, 2021 ONSC 404 at pa ra 13; Rv Adam, 2006 BCSC 1884 at p ara 141 (addressing voice

identificati on). If an objection is made on this b asis, then it should be suf ficient to address admissib ility

by relying on couns els’ statements as officer s of the court as to what the witness es in question would

say; a full voir dire is not require d: Wang; Lo, supra note 14 at para 27. See also Rv Frimpong , 2013 ONCA

243 at paras 18-22. A s explained in Chapter 1 of thi s text, “probative value” rep resents the extent to which

the evidence ac tually assists in estab lishing the proposition for wh ich it is tendered. “Prejudi cial effect”

measures the exte nt to which reception of the evid ence will dis tort the trial by un dermining fundame ntal

principles like th e presumption of innocen ce and the right to be tried on o ne’s actions. Justice D oherty in

Frimpong (at para 18) notes (in the contex t of eyewitness identific ation evidence) that prejud ice may also

result from the inability to test or challenge the evidence. Importantly, in reinforcing the exceptional nature

of this discretion in i dentification cas es, His Honour adds th e following in address ing the facts in Frimpong

(at paras 20-21):

The potential pro blems with [the eyewitness’s] ident ification evidence, while num erous, were

standard fare for identification evidence cases. Juries, armed with the appropriate instructions,

routinely asses s that kind of evidence … Absen t prejudice, a trial judge can not exclude evidence

solely on the basi s that the judge thinks that t he evidence has little pro bative value.

17Rv Huerta, 2020 ONCA 59 at p ara 22. Composite sketch ident ification is addresse d below in Section II.H .

18Mezzo, supra note 15 at para 45 (Wi lson J, on behalf of Dick son CJ, in concurring rea sons); Rv Vivar, 2003

CanLII 49365 (Ont Sup Ct ). See Section II.E for mor e on how to address frailties in t he pre-trial identifica-

tion process.

Chapter 14 Identification Evidence 615

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