TEXTS & ANNOTATIONS...........................................................................................................

1
McWilliams' Canadian Criminal Evidence, 5th Edition..........................................................1
Criminal Law Evidence, Practice and Procedure....................................................................2
CASE LAW.....................................................................................................................................4
R v Ogbamichael, 2019 ONSC 4035.......................................................................................4
R v. KHAMIS, 2019 ONSC 2846.............................................................................................4
R v Ngugi, 2018 ONSC 7193...................................................................................................5
R v Baker, 2018 ONSC 3111..................................................................................................6
R v Carter, 2015 ONSC 5273..................................................................................................7
R v Turner, 2012 ONSC 1651.................................................................................................9
R v Pelletier, 2012 ONCA 566................................................................................................9
R v Chu, 1997 CarswellOnt 5209..........................................................................................10
R v Miaponoose, 1996 CarswellOnt 3386.............................................................................12

TEXTS & ANNOTATIONS

McWilliams' Canadian Criminal Evidence, 5th Edition
Part VI — THE EVALUATION OF EVIDENCE; Chapter 32
32:40.20.30.20 — Pre-identification Instructions
Pre-lineup instructions should be free from any suggestive influence.115 The Sophonow Inquiry
made the following recommendations regarding pre-identification instructions:
• Everything should be recorded on video or audiotape from the time that the officer
meets the witness, before the photographs are shown through until the completion of the
interview. Once again, it is essential that an officer who does not know who the suspect
is and who is not involved in the investigation conducts the photo pack lineup.
• Before the showing of the photo pack, the officer conducting the lineup should
confirm that he does not know who the suspect is or whether his photo is contained in
the lineup. In addition, before showing the photo pack to a witness, the officer should
advise the witness that it is just as important to clear the innocent as it is to identify the
suspect. The photo pack should be presented by the officer to each witness separately.
• Police officers should not speak to eyewitnesses after the lineups regarding their
identification or their inability to identify anyone. This can only cast suspicion on any
identification made and raise concerns that it was reinforced.116
The instruction that the witness be told that the suspect may or may not be in the lineup, tied
with an instruction that they need not make a choice, has led to more reliable identifications in
target-absent arrays.117 Indeed, in one experiment, 45% more people chose innocent fillers in
target-absent arrays when administrators failed to warn that the suspect may not be there. 118
Criminal Law Evidence, Practice and Procedure
42 — LINE-UP EVIDENCE

42(B) — PRACTICE AND PROCEDURE

1. — Obtaining Identification Evidence from Line-up
When investigating the identity of an offender, police will often prepare an identification line-up. This is most
often done with a collection of photographs, but may be done with live people, or with videotape of various
people.
In each method, the suspect, and people similar to the suspect are presented to an eyewitness, to see whether
the eyewitness recognizes the suspect.
At trial, the officer who arranged the line-up, the eyewitness and the officer who presented the line-up to the
witness will testify.
After much critical review, it appears that the sequential presentation of photographs (the “Sophonow
Procedure”) is the best procedure for avoiding misidentification.
2. — Arranging a Line-up
The line-up must contain at least eight to ten people similar to the suspect in age, appearance, build, ethnicity
and sex. In live line-ups and videos, heights should be similar. Nothing in the suspect’s appearance should
distinguish the suspect from the others.
(a) — Photo line-up — “Sophonow” procedure
(i) A separate pack of photographs is prepared for each witness.
(ii) The photographs are shuffled before presentation.
(iii) The photographs are shown one by one, sequentially, and not in groups.
(iv) If the witness identifies a picture, then the officer and the witness sign and date the back of that
photograph. The whole group becomes a police exhibit.
(v) A record must be made of the proceeding. Videotape is preferable, but audiotape may suffice.
(b) — Photo array
(i) All of the photographs are attached to a single card or page which is shown to the witness.
(ii) When the array is shown to the witness, the witness’s remarks are recorded on a prepared form — a
“ballot”.
3. — Presenting Line-up
(a) If more than one witness will see the line-up, each witness must see the line-up independently, and police
should ask each not to discuss the line-up with the others.
(b) The officer who shows the line-up to the witness should not know which person in the line-up is the
suspect. If the officer does know, the officer should never convey to the witness before or after the viewing that
the suspect is in the line-up or that the witness picked the suspect.
(c) The officer who shows the line-up should instruct the witness that:
• the person of interest may or may not be in the line-up;
• the officer conducting the line-up does not know who the suspect is nor whether the suspect is in
the line-up;
• it is just as important to clear the innocent as it is to identify the suspect;
• the witness should not guess;
• the witness is under no obligation to pick any photograph;
• the people in the photograph pack may have changed their appearance by changing hairstyle or
facial hair;
• the witness should take as much time as necessary. These instructions are often prepared on a
form which contain blanks for the witness to sign.
(d) If the witness recognizes any of the pictures, the officer should ask where the witness recognizes the
person from and record the answer.
(e) Any remarks the witness makes indicating recognition of a photograph should be noted on the back of
the photograph.
(e) After an identification, the witness should be asked how much confidence he or she has in the
identification.

4. — Introducing Identification Evidence from Line-up

(a) — Questions of witness who arranged or “set up” line-up
At trial, questioning of the officer who “set up” or arranged for the line-up should establish:
(i) he or she assembled the line-up including the accused;
(ii) which person in the line-up is the accused in court today;
(iii) other people were selected for the line-up for their similarity to the accused by:
(A) sex
(B) race
(C) age
(D) hair color and length
(E) build
and in the case of a live line-up:
(F) clothing
(G) height
in the case of a live line-up,
(iv) the date time and place of the line-up;
(v) how the accused was given a number (taken at random from a pile);
(vi) that the accused was asked not to do anything (movement, sound, etc.) out of the ordinary to draw
attention to himself;
(vii) that a photo or video was taken of the line-up, and it fairly represents the line-up;
(viii) present photo or video, and enter it as an exhibit.
(b) — Questions of witness who presented persons to line-up
The officer who presented the line-up to the witnesses should be questioned to establish:
(i) the date, time and place of the line-up;
(ii) that the witness attended for the purpose of viewing certain persons in a line-up;
(iii) what instructions the witness received before seeing the line-up. They should be similar to the following:
• the person of interest may or may not be in the line-up;
• the officer conducting the line-up does not know who the suspect is nor whether the suspect is in the line-
up;
• it is just as important to clear the innocent as it is to identify the suspect;
• the witness should not guess;
• the witness is under no obligation to pick any photograph;
• the people in the photograph pack may have changed their appearance by changing hairstyle or facial hair;
• the witness should take as much time as necessary.
(iv) that the witness acknowledged these instructions either orally, or on paper. Documentation should be
filed as an exhibit.
(v) the officer gave no other instructions to the witness.
(vi) if the line-up was videotaped or audiotaped:
(A) a transcript should be provided to the court (if available),
(B) the tape should be played,
(C) the officer should testify that it fairly records the events,
(D) the tape (and transcript) should be entered as an exhibit.
(vii) the manner in which the line-up was presented to the witness.
(viii) all of the the photographs of the line-up should be identified, and filed as an exhibit.
(ix) the exact words the witness used to make his or her identification, and how they were recorded. Any
note or paper on which they were recorded should be filed as an exhibit.
(x) which person the witness identified from the line-up;
(xi) no special attention was drawn to any person (especially the suspect) by the officer,
(xii) the witness was never shown a photo of anyone prior to viewing the line-up;
(c) — Questions of witness who viewed line-up
The witness who was asked to observe the line-up should be questioned to establish:
(i) the opportunity the witness had to observe the offender: how much time, from what distance, in what light;
(ii) what the offender looked like: height, weight, colour of skin, hair and eyes, tatoos, accents, etc.;
(iii) whether the witness gave or wrote an accurate description soon after the offence;
(iv) that the line-up was for the purpose of the case presently before the court;
(v) what the witness understood from the instructions given prior to the viewing;
(vi) nobody showed the witness a photo of a suspect prior to viewing the line-up;
(vii) no special attention was drawn to any one person in the line-up.
(viii) that the witness recognized a person in the line-up;
(ix) how much confidence in that identification the witness had;
(x) the involvement of the person recognized in the incident (e.g., “he robbed me”);
(xi) whether that person is in court today;
(xii) the effect on the witness of recognizing that person in the line-up (shook, sweated, was frightened, etc.);
(xiii) if a ballot was used, that the witness wrote down the number of the person recognized on the ballot;
(xiv) that the ballot was given to the attending officer;
(xv) recognition of the ballot (i.e., “A”) and identification of the witness’s signature and handwriting on it.
(xvi) what the witness told the police about the appearance and identification of the culprit was accurate.

CASE LAW
R v Ogbamichael, 2019 ONSC 4035
75 … I must also be concerned about events that took place that confirmed her
identification; something he called confirmation bias. After the Preliminary Inquiry
Ms. Deger watched all the videos that were shown to her again on the voir dire as well
as certain stills, with DC Bowry, to see if she could recognize anyone. She admitted
that she knew that if the detective was telling her to look at some images that those
images must be related to the case Mr. Ogbamichael was involved in. One of my
concerns in this regard is that DC Bowry was showing the various videos to Ms. Deger
and he was the one stopping them at various points to draw her attention to certain still
shots and yet he made no notes of specifically what he did or what he asked her and
what her responses were. Mr. Parry referred to my decision of R. v. Mohamed, 2014
ONSC 165 (Ont. S.C.J.) at paras. 37 and 53 where I referred to the recommendations
from the Sophonow Inquiry, Winnipeg: Manitoba Justice, 2001 which included the
recommendation that during photo lineups everything should be recorded on video or
audiotape from the time that the officer meets the witness and that an officer who is
not involved in the investigation should conduct the photo lineup to avoid the risk of
the officer inadvertently influencing the process. The manner in which Ms. Deger was
shown the videos as part of her trial preparation is accordingly of concern.

R v. KHAMIS, 2019 ONSC 2846

54 … Identification evidence is evidence which the courts must exercise caution in
relying on. Erroneous identifications have been the cause of many wrongful
convictions. Honest identification witnesses can be mistaken. A witness who feels
certain of the identification he or she is making can be mistaken. The level of a
witness' certainty about an identification does not increase reliability. As a result, in
assessing identification evidence, a court must go beyond considering the honesty of a
witness, and must also consider all the circumstances in which the identification was
made, in order to assess whether the identification evidence is sufficiently reliable to
prove the charge beyond a reasonable doubt: R. v. Miaponoose (1996), 30 O.R. (3d)
419 (Ont. C.A.) at paras. 9-13; R. v. Hibbert, [2002] 2 S.C.R. 445 (S.C.C.) at paras.
50-53.
 55 Some of the factors a court may consider in assessing the reliability of
identification evidence include: the witness' opportunity to observe at the time of the
alleged offence (duration of the observation, light conditions, whether there was a face
covering, etc.); whether the witness has prior knowledge of the person being identified
— although with the caveat that even a person who knows someone can make a
mistake about identification; the time lapse between the event and the identification;
the presence of distinctive features and the amount of detail in the description provided
by the witness; the presence or absence of corroborative evidence; the possibility of
contamination by improper identification procedures: R. v. Miaponoose, supra at
paras. 16-17. This is not an exhaustive list.
56 It also is well-settled that an in court identification (in this case a dock
identification) has little or no probative value standing alone: R. v. Tat, supra at para.
36; R. v. Miaponoose, supra, at para. 35. Rather, what I focus on in considering the
reliability of Mr. Forrest's identification of Mr. Khamis as the perpetrator of the
robbery is the factors listed above that affect the reliability of the identification, as well
as the out of court process used to make the identification, i.e., the photo-line-up
process, both in terms of procedure used, and the fairness of the composition of the
line-up photos: R. v. Miaponoose, supra at paras. 16-17; R. v. Tat, supra at paras. 36-
37; R. v. Shermetta, [1995] N.S.J. No. 195 (N.S. C.A.) at para. 20.
57 In this case, the defence does not challenge the procedure used to administer the
line-up. Mr. Forrest was given the now standard caution at the outset about the
perpetrator not necessarily being among the photos he would be shown. He was shown
the photos sequentially, and each photo only once. The envelopes containing the
photos were shuffled before they were shown to Mr. Forrest. There did not appear to
be any leading in the actions of the officer who administered the photo line-up. In my
view, the procedures by which the photo line-up was administered appear to have been
generally1 in accordance with the recommendations of the Sophonow inquiry.

(FOOTNOTES: I say "generally", because contrary to the recommendations of the

Sophonow inquiry report, the officer who administered the photo line-up, Officer
Moorcroft, had some involvement in the investigation apart from the line-up,
including making observations at the scene, ensuring statements were taken from
witnesses, and canvassing for video. The best practice is to have an officer who is not
involved in the investigation administer the line-up, as it avoids the possibility of
unintentional signalling by the officer administering the line-up to the witness.
However, in the circumstances of this case taken as a whole, I am satisfied that the
procedure by which the line-up was administered was fair.)

R v Ngugi, 2018 ONSC 7193

The Photo Lineup

37 ... The procedure for the photo identification is reduced to writing in a one page
document entitled "Photo Identification Session Officer Procedure." With that procedure is a
 script of instructions which the officer reads to the witness. Both the procedure and the
script documents were filed as an exhibit. Constable Middleton conducted the session.
Constable Rider videotaped the session. The audio videotape of the session was also
played and filed as an exhibit.

38 It is not contested that Constable Middleton, who had not conducted

a photo lineup before, did not follow the procedures and instructions. Although
the photo lineup package consisted of 12 photographs, he did not show all photographs to
the complainant but stopped after the complainant identified the person depicted in
photograph number nine as the person who assaulted her. It is also acknowledged that the
complainant's comments were not recorded on the appropriate form as discussed in
the procedure.

Eyewitness Identification
55 The standard jury instruction on the frailties of eyewitness identification evidence
emphasizes that an apparently convincing witnesses can be mistaken and that confidence
and accuracy are "two different things."1 In R. v. Hibbert, 2002 SCC 39 (S.C.C.), at para.
52, Abour J. stated that it is "prudent to emphasize ... the very weak link between the
confidence level of a witness and the accuracy of that witness."
…

57 The importance of enhanced scrutiny of eyewitness identification and photo lineup is

underscored by the tragic wrongful conviction in R. v. Hanemaayer, 2008 ONCA 580, 234
C.C.C. (3d) 3 (Ont. C.A.). To avoid a penitentiary sentence, Hanemaayer pleaded guilty to
a rape that years later was determined to have been committed by the "Scarborough
rapist," Paul Bernardo. In that case, a confident eyewitness and a flawed photo lineup
(presentation in array rather than in sequence, officers conducting the lineup were involved
in the investigation, confirmation by the officers that the witness was correct) were factors
that led to this wrongful conviction.

…
Analysis and Disposition

61 However, the complainant picked out the accused's photograph in the photo
lineup. While the photo lineup was not executed in accordance with procedure, I do not
find that it is so tainted as to be disregarded. Having reviewed the video of the photo
lineup and the photographs, I accept that there was nothing in the conduct of the officers
or in the selection of the other subjects sufficient to cast serious doubt on the reliability
of the photo lineup evidence. It would have been better had all 12 of the photographs
been shown to the complainant. I find the composition of the lineup suitable for its
purpose and in accordance with the principles adopted post Sophonow.

R v Baker, 2018 ONSC 3111

Law on reliability of identification evidence
37 The Crown acknowledges, as emphasized in R. v. Miaponoose… that eye witness
identification is inherently unreliable.
 38 Despite the frailties in eyewitness evidence, the courts have recognized that, if
administered under proper conditions, police photo lineups can form the basis for
identification.
…
Reliability of Officer Caron's identification evidence
41 In this case, the police followed the Sophonow recommendations with one
exception, which is that the photo lineup was not videotaped or audiotaped.
42 Indeed, the police took the following steps in administering the lineup:
a. The photo pack included 12 subjects, which is more than the 10
recommended;
b. The photos in the lineup included subjects who closely resemble Mr.
Baker. Amongst other traits, the subjects are all light skinned men, have
hair at least down to their shoulders, and have facial hair.
c. While the administration of the lineup was not videotaped, the
evidence from both Officer Caron and Officer Rahim is that Officer
Matthers, who administered the lineup, was not involved in the
investigation and was not told that Mr. Baker was the suspect.
d. The photos were presented sequentially.
e. While there was no videotape, Officer Caron contemporaneously
recorded on the back of each photo whether the identification was
positive or negative.
f. Officer Caron's evidence is that Officer Matthers did not speak to her
or give her any kind of cues while the lineup was administered.
g. While the lineup was not administered by an officer from a different
police force, Officer Matthers was not involved in the investigation and
he was not told that Mr. Baker was the suspect when the lineup was
administered.
43 Therefore, as mentioned above, the only step missing from the Sophonow
recommended process is that the administration of the lineup was not videotaped or
audiotaped…
…
50 In conclusion, looking at the totality of the evidence, including the fact that the
procedure followed for administering the photo lineup was very close to the procedure
recommended in Sophonow and that there was independent confirmatory evidence, I am
convinced beyond a reasonable doubt that the person from whom Officer Caron bought
the crack cocaine on October 10, 13 and 31, 2015 was the accused, Mr. Baker. I
therefore find him guilty of all six charges against him.

R v Carter, 2015 ONSC 5273

56 In an appropriate case a trier of fact may be justified in convicting on the
evidence of a single eye witness. See R. c. Pelletier, [1996] 3 S.C.R. 601 (S.C.C.), at
601.
57 Questionable identification procedures may not be fatal to a finding of guilt.
Improprieties or deficiencies in police procedures do not necessarily destroy the
identification evidence or render it inadmissible. See R. v. Mezzo (1986), 27 C.C.C.
(3d) 97 (S.C.C.), at pp. 132 -140, R. v. D'Amico (1993), 16 O.R. (3d) 125 (Ont. C.A.) at
p. 129.
58 The use of inappropriate pretrial identification procedures affects the weight of
the subsequent identification. See R. v. A. (F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.)
at para. 46.
59 In assessing the dangers of eyewitness identification testimony as a result of
flawed identification procedures, courts have specifically looked to the existence of
compelling confirmatory evidence to assess the safety of a conviction. The existence of
confirmatory circumstantial evidence can go a long way to minimizing the damages
inherent in eyewitness identification. See R. v. Phillips (2001), 154 C.C.C. (3d) 345
(Ont. C.A.), at 353 -354, R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at 389 .
60 In R. v. Gonsalves, [2008] O.J. No. 2711 (Ont. S.C.J.), Justice Hill of this court
referred to the recommendations flowing from the Sophonow inquiry at paras. 52 and
53:
52 The Inquiry Regarding Thomas Sophonow conducted by The Honourable Peter Cory
made a number of recommendations regarding photo line-up procedures as reproduced
in the Report on the Prevention of Miscarriages of Justice, FPT Heads of Prosecutions
Committee Working Group, September 2004:
Photo pack line-up
• The photo pack should contain at least 10 subjects.
• The photos should resemble as closely as possible the eyewitnesses'
description. If that is not possible, the photos should be as close as possible to
the suspect.
• Everything should be recorded on video or audiotape from the time that the
officer meets the witness, before the photographs are shown through until the
completion of the interview. Once again, it is essential that an officer who does
not know who the suspect is and who is not involved in the investigation
conducts the photo pack line-up.
• Before the showing of the photo pack, the officer conducting the line-up
should confirm that he does not know who the suspect is or whether his photo
is contained in the line-up. In addition, before showing the photo pack to a
witness, the officer should advise the witness that it is just as important to clear
the innocent as it is to identify the suspect. The photo pack should be presented
by the officer to each witness separately.
• The photo pack must be presented sequentially and not as a package.
• In addition to the videotape, if possible, or, as a minimum alternative, the
audiotape, there should be a form provided for setting out in writing and for
signature the comments of both the officer conducting the line-up and the
witness. All comments of each witness must be noted and recorded verbatim
and signed by the witness.
• Police officers should not speak to eyewitnesses after the line-ups regarding
their identification or their inability to identify anyone. This can only cast
suspicion on any identification made and raise concerns that it was reinforced.
• It was suggested that, because of the importance of eyewitness evidence and
the high risk of contaminating it, a police force other than the one conducting
 the investigation of the crime should conduct the interviews and the line-ups
with the eyewitnesses. Ideal as that procedure might be, I think that it would
unduly complicate the investigation, add to its cost and increase the time
required. At some point, there must be a reasonable degree of trust placed in
the police. The interviews of eyewitnesses and the line-up may be conducted
by the same force as that investigating the crime, provided that the officers
dealing with the eyewitnesses are not involved in the investigation of the crime
and do not know the suspect or whether his photo forms part of the line-up. If
this were done and the other recommendations complied with, that would
provide adequate protection of the process.
53 While the Sophonow Inquiry recommendations do not themselves have the force of
law, they provide useful guidance for eyewitness identification cases as noted in R. v.
Goulart-Nelson, [2004] O.J. No. 4010 (C.A.) at para. 11:
Much emphasis was placed by counsel for the appellant on the recommendations
made in the Sophonow Inquiry. Those recommendations are persuasive tools to avoid
wrongful convictions arising from faulty eyewitness identification. However, as stated
by Arbour J. in R. c. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445: What will be
required to displace the danger that the jury will give an eyewitness identification
weight that it does not deserve will vary with the facts of individual cases.

R v Turner, 2012 ONSC 1651

104 The high point, in terms of quality of the police investigation, was the fair
administration of a sequential photo-pack line-up by an officer uninvolved in the
investigation. However, the investigating officer was inexperienced. Other aspects of
the police work left much to be desired including:
(1) the failure to have Brown and Jacques undertake an attempt at
identification through a photo line-up
(2) the unexplained loss of photo #7, the photo of Douglas
Turner, with Jennifer Young's written comments
(3) the lack of detail elicited in the statements taken by Const.
Robinson
(4) no photographs of the bootprints were taken or casts of the
footprints in the snow at the rear of the Young residence
(5) no seizure of clothing and footwear incident to arrest was
undertaken at Turner's Merton Street dwelling — nor were photos
taken of the items in plain view
(6) Const. Nicol made no notes as to what was said to him by
Brown and Jacques at the courthouse about Turner and his
appearance.
105 These observations are not about marking the performance of a police
investigation but rather about what might fairly be described as gaps in the prosecution
case which may affect the Crown's discharge of proof.
R v Pelletier, 2012 ONCA 566

The Governing Principles

…
90 First, countless authorities acknowledge the inherent frailties of eyewitness
identification evidence, especially in cases that involve fleeting glimpses of unfamiliar
persons in stressful circumstances: R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont.
C.A.), at pp. 450 -451.
91 Second, the weight to be assigned to evidence of eyewitnesses is a variable, not a
constant. The weight of such evidence is for the trier of fact to determine and will vary
according to the circumstances of individual cases: Miaponoose, at p. 452.
92 Third, the reliability of eyewitness testimony is not determined by or coextensive
with the actual or apparent honesty of, or the confidence in correctness expressed by,
the identification witness: R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at p. 255.
93 Fourth, as a general rule, in-dock identifications are entitled to little weight in the
assessment of the adequacy of the prosecution's proof on the issue of identity: Izzard, at
p. 256; R. v. Williams (1982), 66 C.C.C. (2d) 234 (Ont. C.A.), at p. 235; R. v. A. (F.)
(2004), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and R. v. Nguyen (2000), 132
O.A.C. 354 (Ont. C.A.), at para. 41.
94 Fifth, the recommendations of the Sophonow Inquiry about the manner in which
photo line-ups should be conducted are persuasive tools to avoid wrongful convictions
arising from faulty eyewitness identification, but they are neither conditions precedent
to the admissibility of eyewitness testimony nor binding legal dictates for the
assignment of weight: R. v. Goulart-Nelson, [2004] O.J. No. 4010 (Ont. C.A.), at para.
11; R. v. Grant, 2005 ABCA 222, 198 C.C.C. (3d) 376 (Alta. C.A.), at para. 6; and R. v.
Doyle, 2007 BCCA 587 (B.C. C.A.), at paras. 12-13.
95 Finally, each case that includes eyewitness testimony as part of the prosecution's
case requires the trier of fact, mindful of its frailties both inherent and patent, to
consider it in its entirety, along with and in the context of the balance of the evidence, in
deciding whether an accused's guilt has been proven beyond a reasonable doubt:
Goulart-Nelson, at para. 11; Grant, at para. 6; Doyle, at para. 13.

R v Chu, 1997 CarswellOnt 5209

29 In view of this, a number of Canadian Courts have taken the time to discuss and
establish detailed and thorough criteria that they use to guide them in the process of
analyzing and weighing the reliability of eyewitness testimony. Many of the cases
presented to me for consideration by counsel focused on this very discussion. After
examining the jurisprudence in this area, I find the following list of criteria to be
mentioned repeatedly in the case law as reasonable, useful and trustworthy ways of
analyzing eyewitness evidence for reliability. Not all criteria would apply in every
case. The criteria would apply according to the individual facts of each case.
1. The opportunity to observe the person being identified. This necessarily
includes the consideration of such factors as distance and the presence of any
obstruction to view. (R. v. Hang (1990), 55 C.C.C. (3d) 195 (B.C. C.A.))
2. The duration of the opportunity to observe the person being identified, in
other words, was the view just a 'fleeting glance' or a longer observation.
3. The conditions under which the observation was made. This would include a
consideration of the following factors: what was the lighting, if any? was the
person being observed or the observer moving or stationary? was the movement
towards each other or away from each other? what was the emotional state of the
observer at the time of the viewing? (R. v. Virk (1983), 33 C.R. (3d) 378 (B.C.
C.A.).
4. Is the person observed known or unknown to the observer or have they seen
the person before and under what circumstances. (R. v. Virk (1983), 33 C.R.
(3d) 378 (B.C. C.A.).
5. What is the eyewitness' demonstrated ability to describe the person being
observed. This includes the consideration of such questions as, was the
description given a general one or one rich in detail; what was the quality of the
physical description? was there any material discrepancy in the eyewitness
description of the person being observed and the actual appearance of the
accused as revealed by the evidence? did the person being observed demonstrate
the presence or absence of any distinctive feature in his or her physique, speech,
mannerisms, or dress that was overlooked by the eyewitness? (R. v. Virk, supra;
R. v. Krell (September 28, 1995), Doc. Calgary 413419P10101-0102 (Alta.
Prov. Ct.))
6. The presence of contradictions in the description or descriptions. Were there
any material contradictions in the description itseft of the eyewitness? were there
contradictory descriptions of the person being observed given by other
eyewitnesses? is the fact that other witnesses, with equal opportunity to observe
the person in question, failed to identify the person in question relevant on the
facts of the particular case R. v. Virk, supra; R. v. Nguyen (1994), 47 B.C.A.C.
7, 76 W.A.C. 7 (B.C. C.A.)
7. What is the particular lapse of time involved between the time of the actual
observation of the assailant and the time of the identification, be it by way of
pointing out the individual to the police, providing a physical description in a
police statement, participating in a photo-lineup process or making an in-court
identification. It appears to be generally accepted that the longer that lapse of
time is, the less reliable it becomes. (R. v. Hang, supra)
8. What were the conditions and circumstances of the identification process?
Was the identification wholly independent or was it induced by discussions with
other individuals and other outside influences? If the same witness identified the
assailant a number of times and in different ways, did one identification process
influence another? For example, if an eyewitness sees a photograph of the
accused in a photo-lineup, has that influenced that witness' ability to identify the
 accused in a subsequent process, such as in court? (R. v. Miaponoose (1996),
110 C.C.C. (3d) 445 (Ont. C.A.) .)
9. The ability of the eyewitness to identify the person being observed subsequent
to the period of observation. Is the eyewitness able to pick out the accused in a
photo-lineup or in court and was their choice sure or unsure? (R. v. Miaponoose,
supra)
10. If an in-person or photo-lineup procedure was used to make an identification,
has the integrity of the procedure been compromised in any way? I made special
reference to this in my earlier ruling at pages 16 and 17. I consider those
principles to still hold true here. For instance, in a photo-lineup was the
photograph of the accused appropriate and representative of him? Was the
accused notably different from the other persons appearing in the photo line-up
in age, build and size, colour and complexion, physical appearance, dress or
otherwise? (R. v. Williams (1982), 66 C.C.C. (2d) 234 (Ont. C.A.)). Did the
line-up procedure, in person or by way of photographs, single out in any way the
accused? Was the identification in the photo-lineup made by reference to any
features that were not mentioned to the police in an earlier identification by the
eyewitness. (R. v. Miaponoose, supra)
11. Is cross-cultural identification an issue with the witness? (R. v. McIntosh
(1997), 117 C.C.C. (3d) 385 (Ont. C.A.)

R v Miaponoose, 1996 CarswellOnt 3386

Sufficiency of Eye-Witness Idenfication Evidence

(a) Inherent Frailties
9 The inherent frailties of identification evidence are well known to the law and have
been the subject of frequent judicial consideration and comment. We must, however,
never regard these principles as trite. They are fundamental. They merit repeating. One
of the many useful writings on this subject can be found in the Law Reform
Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification
Procedures". The Commission concludes in its study that "the need for comprehensive
police guidelines is particularly acute in the area of pretrial eyewitness identification
procedures, because eyewitness testimony is inherently unreliable" (at p. 7).
10 In discussing the dangers inherent in eyewitness testimony, the Commission
reviews actual cases of wrongful conviction based on eye witness testimony;
psychological studies that reveal the inherent unreliability of this kind of evidence; and
the reasons why eyewitness testimony is difficult to assess through courtroom
procedures. The study reiterates the fact that it has long been recognized by
commentators that, of all types of evidence, eyewitness identification is most likely to
result in a wrongful conviction and this even in cases where multiple witnesses have
identified the same accused.
11 Eyewitness testimony is in effect opinion evidence, the basis of which is very
difficult to assess. The witness's opinion when she says "that is the man" is partly based
on a host of psychological and physiological factors, many of which are not well
understood by jurists…
…
12 Finally, the Commission points out how studies have confirmed that fact-finders
do place undue reliance on eyewitness testimony in comparison to other types of
evidence.

…
(c) Factors to Consider in Evaluating Eye-Witness Identification Evidence

16 The weight of eyewitness identification will obviously vary greatly depending on

the circumstances. In an often quoted passage from the decision of R. v. Smierciak
(1946), 87 C.C.C. 175, Laidlaw J.A., in writing for the Ontario Court of Appeal,
succinctly set out a number of relevant factors to be considered in the assessment of
identification evidence. His words are particularly useful to the review of this case (at p.
177):
The weight of evidence of identification of an accused person varies according to many
circumstances. A witness called upon to identify another person may have been so well
acquainted with him or her as to make the identification certain and safe. The person to
be identified may possess such outstanding features or characteristics as to make an
identification comparatively free from doubt. The conditions under which an
observation is made, the care with which it is made, and the ability of the observer,
affect the weight of the evidence. In addition to such matters, and of the utmost
importance, is the method used to recall or refresh the recollections of a witness who is
to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If
a witness has no previous knowledge of the accused person, so as to make him familiar
with that person's appearance, the greatest care ought to be used to ensure the absolute
independence and freedom of judgment of the witness. His recognition ought to proceed
without suggestion, assistance or bias, created directly or indirectly. Conversely, if the
means employed to obtain evidence of identification involve any acts which might
reasonably prejudice the accused, the value of the evidence may be partially or wholly
destroyed. Anything which tends to convey to a witness that a person is suspected by
the authorities, or is charged with an offence, is obviously prejudicial and wrongful.
Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise,
permitting a witness to see a single photograph of a suspected person or of a prisoner,
after arrest and before scrutiny, can have no other effect, in my opinion, than one of
prejudice to such a person.
17 Later in the reasons for decision, the Court reiterates the need for constant
watchfulness on the part of judges and Crown counsel to see that nothing unfair to an
accused person is done or put in evidence in connection with identification procedure. I
would add that it is clear that the police also have a duty to ensure the integrity of the
identification process. Their role indeed may be most important of all since they are
usually in control of the methods chosen to recall or refresh the memory of eye
witnesses. While it may not be possible to improve upon the reliability of a witness's
original perception of a person, it is crucial that procedures which tend to minimize the
inherent dangers of eyewitness identification evidence be followed as much as possible
in any given case. Irreversible prejudice to an accused may flow from the use of
inappropriate police procedure and, unless adequately counterbalanced during the
course of the judicial process, may result in a serious miscarriage of justice.
(d) Evaluation of the Eye-Witness Identification Evidence in this Case

18 In this case, the assailant was unknown to the young complainant. Her
identification of the appellant is entirely dependent on her perception and recollection of
the events on the evening in question. The trial judge found that the complainant had a
good opportunity to observe her assailant and this finding is not disputed…
…

23 As a result of his observations of the appellant, the investigating officer advised

the father of the complainant that he had a suspect who may have assaulted his
daughter. He arranged for the father to bring the complainant to a particular location for
the purpose of viewing the appellant. The officer, admittedly under false pretences,
obtained the appellant's consent to come in the police van with him. The officer drove
the van by the location where the complainant was waiting with her father.
…
25 The complainant testified that she froze when she saw the appellant in the van and
that she recognized him as being her assailant. The only view she had of him at the time
was from the chest up as he was seated inside the van with the police officer. And,
again, her testimony is not very precise in this respect and it is not known what she said
to her father, if anything, upon seeing the appellant. Neither is it known what her father
may have said to her at that time. Had the victim's reaction, upon seeing the appellant,
been one of clear and unqualified recognition, without any encouragement or input from
her father, then that very response would have at least contributed to the weight to be
given to this evidence. But, those details were not put forth at trial. In fact, the failure of
the Crown to focus on that point, and the absence of testimony from her father detailing
her reaction, renders the reliability of her identification evidence even more
questionnable.
26 When pressed in cross-examination to indicate what it was about the appellant
that she had recognized when he passed her in the police van, she stated that it was his
face, his eyes and the way he looked at her. She then conceded that there was nothing
different about his eyes. She had simply recognized him as the man who had assaulted
her. When the officer attended at her residence after the viewing, she simply indicated
to him that the appellant was the man without specifying anything in particular.
Likewise at trial, her identification of the appellant in the docket was essentially a bald
assertion that he was the man who had assaulted her. When pressed to be more specific,
she refused to look at the appellant other than to look at the colour of his hair, which she
described as dark brown.
27 The trial judge described the viewing of the appellant by the complainant as
having been "achieved in a most unusual manner". The police officer, a man with
almost twenty-four years of experience as a police officer, conceded that the procedure
he adopted was inappropriate. He agreed that he was taught and was aware of proper
identification procedures and that the method chosen in this case did not in any way
meet appropriate standards. There were no exigent circumstances preventing the use of
non-suggestive methods. He conceded that he knew that the method he chose was
wrong and "probably" unfair to the appellant, yet he still chose to proceed in this
fashion.
28 The pretrial identification procedure in this case was totally unjustifiable in the
circumstances. There may be situations where a confrontation between a single suspect
and a complainant is the only possible way to ascertain whether the suspect can be
recognized. Even in such exigent circumstances, every effort should be made to
maintain as much impartiality as possible and to clearly document all details, and all
statements made by all parties, from the beginning of the identification process to the
end. In all cases, the suspect should be presented to the complainant in circumstances
that minimize any suggestion that the police believe the suspect is the offender. Here,
there were no exigent circumstances. No efforts were made to ensure some fairness to
the process. The highly inappropriate procedure adopted can only have resulted in grave
prejudice to the appellant. It also did nothing to assist the complainant and the
community as a whole, both of whom have a substantial interest in correctly identifying
the perpetrator of this offence.
29 Further, it is my view that, in light of the inherent unreliability of eyewitness
identification, it is incumbent upon Crown counsel to ensure that all relevant
circumstances surrounding pretrial eyewitness identification procedures be fully
disclosed to the defence and be made available for scrutiny by the trier of fact. As stated
earlier in reference to the principles set out in Smierciak, Crown counsel must be
watchful that nothing unfair be put in evidence with respect to identification evidence.
…
32 In the end, it appears that the relevant facts were essentially put before the trier of
fact and the appellant does not allege that he was unduly restricted in his cross-
examination of the police officer. I make these comments, not because they have a
direct bearing on the disposition of this appeal, but in order to stress the importance of
subjecting identification evidence to appropriate judicial scrutiny. This cannot be
effectively achieved without vigilance on the part of both Crown counsel and the judge.
In this case, it was particularly important that all aspects of the pretrial identification
procedure be brought to light. As pointed out earlier, cross-examination may be
inherently limited as a tool for testing the reliability of this type of evidence and,
therefore, the problem should not be compounded by practices that serve to limit its
scope unnecessarily. Rather than limiting the opportunities for a thorough assessment of
the reliability of the identification evidence, both Crown counsel and the judge should
welcome them in the interest of ensuring that all relevant facts are brought to light.
33 The use of inappropriate pretrial identification procedures does not render the
subsequent identification inadmissible unless it is the subject-matter of an appropriate
and successful application under s. 24(2) of the Charter. But, it is a factor affecting the
weight of the evidence. There may be other evidence or other circumstances which
serve to otherwise validate the witness's identification.
34 Here, the trial judge, having rejected the appellant's Charter application, was
correct in admitting the evidence and considering it in the ultimate disposition of the
case. The judge concluded as follows:
On the evidence, I find that the initial identification was not so
tainted by the interpretation or suggestion as to be without weight.
There is sufficient collateral supporting description to permit the
 court to accept the identification of the accused by the
complainant.
While noting some of the weaknesses of the description, the trial judge pointed to the
following features as supportive of the complainant's testimony:
It should be noted here that the accused in a general way fits the
description of the assailant in these terms: one, he is a relatively
big man; two, he has dark hair. In the stand, while giving
evidence, the complainant in describing the accused before her
in the courtroom described the hair of the accused as dark
brown. Three, the accused speaks with no accent.
35 In my view, the inappropriate pretrial identification procedure adopted in this case
rendered the complainant's identification of the appellant at the time very dubious and
of very little weight. It certainly could not, in and of itself, support the verdict.
Furthermore, the subsequent identification of the appellant in the courtroom does not
add any weight to this initial identification. It constituted no more than a bald assertion
that the man in the courtroom was her assailant, the same man who had been put before
her, for identification purposes, in the passing police van.
…
Conclusion
38 In conclusion, I am of the view that it would be dangerous to convict the appellant
on the weight of this evidence. The verdict is unreasonable and it is not supported by the
evidence. It is for these reasons that the appeal was allowed, the conviction quashed and
an acquittal entered at the conclusion of the hearing. In light of this conclusion, the
appeal as to sentence is to be dismissed as moot.