Zurowski: Case in PointZurowski: Case in Point

Identification EvidenceIdentification Evidence

FactsFacts The accident was a hit and run, serious injury The accident was a hit and run, serious injury

collision at Edmonton on February 17, 2001. collision at Edmonton on February 17, 2001. The issue in the trial was the identity of the The issue in the trial was the identity of the driver. driver.

After the accident, the offending driver, After the accident, the offending driver, suffering a cut forehead, left the scene of the suffering a cut forehead, left the scene of the accident but without providing his name and accident but without providing his name and address. He smelled of alcohol. However, a address. He smelled of alcohol. However, a City of Edmonton Emergency Medical Services City of Edmonton Emergency Medical Services (EMS) vehicle had arrived at the scene before (EMS) vehicle had arrived at the scene before the suspected driver took off in another the suspected driver took off in another vehicle, white in colour, which he apparently vehicle, white in colour, which he apparently requisitioned by cell phone. requisitioned by cell phone.

Identification EvidenceIdentification Evidence Before he left, the driver and his passenger were Before he left, the driver and his passenger were

seen removing material including green garbage seen removing material including green garbage bags from the colliding vehicle's trunk as well as bags from the colliding vehicle's trunk as well as cleaning out the glove box. cleaning out the glove box.

Two witnesses at trial, Weber and Royer, could Two witnesses at trial, Weber and Royer, could not identify the appellant Mr. Zurowski as the not identify the appellant Mr. Zurowski as the driver. Weber was the driver of another vehicle, driver. Weber was the driver of another vehicle, who witnessed the accident. Royer was the who witnessed the accident. Royer was the captain of the EMS response team. Four other captain of the EMS response team. Four other witnesses identified the appellant Mr. Zurowski as witnesses identified the appellant Mr. Zurowski as the driver with the cut forehead who had left the the driver with the cut forehead who had left the scene before the police arrived.scene before the police arrived.

Identification EvidenceIdentification Evidence The positive identification of Mr. Zurowski made by The positive identification of Mr. Zurowski made by

the witnesses Boyes and Merritt was attacked by the the witnesses Boyes and Merritt was attacked by the defence. Boyes, six weeks after the crime, noticed defence. Boyes, six weeks after the crime, noticed the appellant's name in a newspaper account. The the appellant's name in a newspaper account. The account included Mr. Zurowski's picture. She showed account included Mr. Zurowski's picture. She showed the account, including the picture, to the witness the account, including the picture, to the witness Merritt, her fellow employee. They agreed that it Merritt, her fellow employee. They agreed that it showed the man with the cut forehead who had showed the man with the cut forehead who had been in the accident. In addition, the witness Merritt been in the accident. In addition, the witness Merritt was shown an isolated photograph of Mr. Zurowski a was shown an isolated photograph of Mr. Zurowski a few days after the accident. The witnesses Boyes few days after the accident. The witnesses Boyes and Merritt had discussed the case while waiting to and Merritt had discussed the case while waiting to give their testimony at trial.give their testimony at trial.

Identification EvidenceIdentification Evidence The witness Keith, an EMS attendant, gave The witness Keith, an EMS attendant, gave

evidence positively identifying the appellant Mr. evidence positively identifying the appellant Mr. Zurowski. Keith's evidence was under challenge Zurowski. Keith's evidence was under challenge as well as that of Lewis. Keith had spoken with as well as that of Lewis. Keith had spoken with the man with the cut forehead for, in his the man with the cut forehead for, in his estimate, 30 seconds to 1 1/2 minutes to try and estimate, 30 seconds to 1 1/2 minutes to try and determine his injuries. He identified Mr. Zurowski determine his injuries. He identified Mr. Zurowski in the courtroom. His evidence was challenged as in the courtroom. His evidence was challenged as he had made no notation about the man in his he had made no notation about the man in his patient care report. He also saw the suspect patient care report. He also saw the suspect under restraint in the courtroom. This tainted his under restraint in the courtroom. This tainted his evidence according to the defence.evidence according to the defence.

Identification EvidenceIdentification Evidence

Lewis was also one of the responding Lewis was also one of the responding ambulance attendants. He had full ambulance attendants. He had full opportunity to observe the driver opportunity to observe the driver with the cut forehead shortly after with the cut forehead shortly after the accident. In fact, he held his the accident. In fact, he held his head while first aid was head while first aid was administered. He saw Mr. Zurowski administered. He saw Mr. Zurowski enter the trial courtroom some 16 enter the trial courtroom some 16 months later. months later.

Q. Q. And seeing him walking in, in leg irons, probably helps you believe that he is the man And seeing him walking in, in leg irons, probably helps you believe that he is the man that you saw on February 17th, correct?that you saw on February 17th, correct?

A.A. Um, not until - like I said earlier, until a few moments ago till I see him walk in, I Um, not until - like I said earlier, until a few moments ago till I see him walk in, I didn't know that this was the person because I didn't see the front of his body, I just didn't know that this was the person because I didn't see the front of his body, I just seen the back. And I never seen the shackles like I told you until a couple of minutes seen the back. And I never seen the shackles like I told you until a couple of minutes ago as he walked in here. So I had - this is my first time as a witness and I - I don't ago as he walked in here. So I had - this is my first time as a witness and I - I don't even know what a person in gaol - incarceration looks like, what kind of clothes they even know what a person in gaol - incarceration looks like, what kind of clothes they wear. So -wear. So -

Q.Q. Are you telling us though that seeing him walk in, in leg irons, didn't cause you to Are you telling us though that seeing him walk in, in leg irons, didn't cause you to believe that he was probably the person that everyone is concerned about today?believe that he was probably the person that everyone is concerned about today?

R.R. Sure.Sure.

Q.Q. Okay. And you had never been approached by the police to look at any photographs, Okay. And you had never been approached by the police to look at any photographs, picking Mr. Zurowski's face from amongst a number of individuals?picking Mr. Zurowski's face from amongst a number of individuals?

R.R. No.No.

Q.Q. So 15 months ago to today's date, this is the first opportunity you've had to look So 15 months ago to today's date, this is the first opportunity you've had to look upon this man over here?upon this man over here?

R.R. Correct.Correct.

FactsFacts

The appellant did not testify or lead The appellant did not testify or lead other defence evidence.other defence evidence.

Held: McClung (C.A.)Held: McClung (C.A.) The appellant insists that this case evokes all the The appellant insists that this case evokes all the

dangers of fallible eyewitness testimony. That dangers of fallible eyewitness testimony. That erroneous eyewitness testimony leading to erroneous eyewitness testimony leading to convictions is a stain upon any criminal justice convictions is a stain upon any criminal justice system and that great care must be taken by triers system and that great care must be taken by triers of fact in these cases. In this we agree. The criminal of fact in these cases. In this we agree. The criminal justice system earns its most pointed criticism from justice system earns its most pointed criticism from convictions based upon faulty eyewitness testimony. convictions based upon faulty eyewitness testimony. Berger, J.A. has raised the dangers touching the Berger, J.A. has raised the dangers touching the unguarded investigatory use of photographs and unguarded investigatory use of photographs and unsupported dock identification. He invokes many unsupported dock identification. He invokes many authorities. But this is not a "fleeting-glance" case. It authorities. But this is not a "fleeting-glance" case. It was one involving the recognition of the accused was one involving the recognition of the accused suspect after his exposure to several witnesses at suspect after his exposure to several witnesses at the collision site.the collision site.

McClung Cont’dMcClung Cont’d Proper eyewitness identification of criminal suspects Proper eyewitness identification of criminal suspects

is often indispensable to the proof of guilt, and may is often indispensable to the proof of guilt, and may well be its most persuasive and reliable source. well be its most persuasive and reliable source. Infirmities in investigatory procedures as well as Infirmities in investigatory procedures as well as other concerns may weaken eyewitness evidence, other concerns may weaken eyewitness evidence, but that is because the rules of evidence but that is because the rules of evidence assessment in this area are judge-made rules of assessment in this area are judge-made rules of caution; they are not exclusionary rules. Nor is caution; they are not exclusionary rules. Nor is corroboration demanded. Corroborative evidence of corroboration demanded. Corroborative evidence of eyewitness testimony is always desirable but it eyewitness testimony is always desirable but it must be remembered that even the waning days of must be remembered that even the waning days of corroboration have not led to the exclusion of other corroboration have not led to the exclusion of other relevant evidence that is offered without it.relevant evidence that is offered without it.

McClung Cont’dMcClung Cont’d Case specific caution aside, holistic exclusion of eyewitness Case specific caution aside, holistic exclusion of eyewitness

testimony should neither be pursued in practice or on principle. It is testimony should neither be pursued in practice or on principle. It is not necessary, to borrow a current analogy, to slaughter the whole not necessary, to borrow a current analogy, to slaughter the whole herd as the only workable precaution.herd as the only workable precaution.

Demands for reform notwithstanding, Canadian criminal courts Demands for reform notwithstanding, Canadian criminal courts must not immunize themselves by ruling out all challenged must not immunize themselves by ruling out all challenged eyewitness identification evidence. This can only be done by eyewitness identification evidence. This can only be done by statute, a bar yet to arrive. In the interim, courts should be statute, a bar yet to arrive. In the interim, courts should be reassured by the overwhelming number of eyewitness testimony reassured by the overwhelming number of eyewitness testimony convictions that prove to be not only reliable but correct. Bank convictions that prove to be not only reliable but correct. Bank tellers who squint can still remember and recognize. Those who tellers who squint can still remember and recognize. Those who suffer from tinnitus may still hear enough to accurately recite what suffer from tinnitus may still hear enough to accurately recite what they heard. Those who are shown photographs of suspects do not they heard. Those who are shown photographs of suspects do not always suppress what they originally saw. Their testimony, taken always suppress what they originally saw. Their testimony, taken on oath, a solemn occasion, may still result in nothing but the truth. on oath, a solemn occasion, may still result in nothing but the truth. All are heard, all are scrutinized. If requisite scrutiny is observed, All are heard, all are scrutinized. If requisite scrutiny is observed, judges and juries may still act upon evidence that in other cases judges and juries may still act upon evidence that in other cases has been found to be fallible. It remains a case by case process.has been found to be fallible. It remains a case by case process.

McClung Cont’dMcClung Cont’d Here, the trial judge, seems to have been fully alert to the Here, the trial judge, seems to have been fully alert to the

snares and delusions of eyewitness identification. He said snares and delusions of eyewitness identification. He said so. He questioned the use of single photographs instead of so. He questioned the use of single photographs instead of identification line-ups or photographic arrays. The judge identification line-ups or photographic arrays. The judge was concerned about the frequent unreliability of dock was concerned about the frequent unreliability of dock identification without more. Following a careful trial, he identification without more. Following a careful trial, he reserved his judgment to review defence submissions.reserved his judgment to review defence submissions.

In the result, he found that the evidence of the Crown In the result, he found that the evidence of the Crown witnesses who identified the appellant Mr. Zurowski, witnesses who identified the appellant Mr. Zurowski, despite the concerns about dock identification, the use of despite the concerns about dock identification, the use of photographs and the inability of the witnesses Royer and photographs and the inability of the witnesses Royer and Weber to make any identification at all, had still satisfied Weber to make any identification at all, had still satisfied him beyond any reasonable doubt of the appellant Mr. him beyond any reasonable doubt of the appellant Mr. Zurowski's guilt. Too many people had seen and dealt with Zurowski's guilt. Too many people had seen and dealt with Mr. Zurowski at the collision site to render his guilt Mr. Zurowski at the collision site to render his guilt uncertain.uncertain.

Cote J.A.Cote J.A. A trial judge may have a duty to warn a jury, or to remind A trial judge may have a duty to warn a jury, or to remind

himself or herself, of the dangers of convicting on eyewitness himself or herself, of the dangers of convicting on eyewitness identification, especially in some circumstances. This trial judge identification, especially in some circumstances. This trial judge did so expressly remind himself …. Aside from that duty to did so expressly remind himself …. Aside from that duty to warn, this whole topic is largely factual, not legal, in my warn, this whole topic is largely factual, not legal, in my respectful view.respectful view.

Parliament knows how to forbid conviction upon uncorroborated Parliament knows how to forbid conviction upon uncorroborated evidence of certain types. As McClung J.A. points out, it has not evidence of certain types. As McClung J.A. points out, it has not done so in this area, and indeed has removed most such done so in this area, and indeed has removed most such requirements from the requirements from the Criminal CodeCriminal Code. A trier of fact is permitted . A trier of fact is permitted to find an accused guilty on the evidence of a single eyewitness, to find an accused guilty on the evidence of a single eyewitness, despite all the potential frailties: despite all the potential frailties: R. v. NikolovskiR. v. Nikolovski, [1996] 3 S.C.R. 1197, [1996] 3 S.C.R. 1197, 1211, , 1211, 111 C.C.C. (3d) 403111 C.C.C. (3d) 403 (S.C.C.), 413 (S.C.C.), 413 (para. 23).(para. 23).

Nor has Parliament made such evidence inadmissible.Nor has Parliament made such evidence inadmissible.

Cote, J.A.Cote, J.A.

Questions of identification go to Questions of identification go to weight only.weight only.

All these questions are essentially All these questions are essentially factual.factual.

Cote J.A.Cote J.A. The appellant relies heavily upon The appellant relies heavily upon R. v. AtfieldR. v. Atfield

(1983), 42 A.R. 294, 25 Alta. L.R. (2d) 97 (1983), 42 A.R. 294, 25 Alta. L.R. (2d) 97 (Alta. (Alta. C.A.). I can find but two propositions of law there: C.A.). I can find but two propositions of law there: that identification is not a question of witness that identification is not a question of witness honesty, and that if the circumstances surrounding honesty, and that if the circumstances surrounding identification are unfavourable, a conviction will be identification are unfavourable, a conviction will be "unsafe". By unfavourable circumstances, that "unsafe". By unfavourable circumstances, that decision means fleeting glances or observations decision means fleeting glances or observations under pressure, fear, haste, etc. Neither category under pressure, fear, haste, etc. Neither category applies here. And applies here. And AtfieldAtfield … has no real effect as a … has no real effect as a strict rule of law anymore. What remains are strict rule of law anymore. What remains are factual cautions. (I leave aside any duty to warn a factual cautions. (I leave aside any duty to warn a jury.)jury.)

Cote J.A.Cote J.A. The facts in The facts in AtfieldAtfield disclosed a palpable miscarriage disclosed a palpable miscarriage

of justice stemming from a true fleeting glance.of justice stemming from a true fleeting glance.

Cases on tainting eyewitnesses with a single photo Cases on tainting eyewitnesses with a single photo or the like are interesting, but of little ultimate or the like are interesting, but of little ultimate effect here. That is because two witnesses here effect here. That is because two witnesses here were not so tainted. The trial judge described in were not so tainted. The trial judge described in detail how the others were tainted and how he detail how the others were tainted and how he might well not have convicted without the non-might well not have convicted without the non-tainted witnesses. Court of Appeal instructions to tainted witnesses. Court of Appeal instructions to the police on how to behave, are instructions to the the police on how to behave, are instructions to the police, not instructions to later Courts of Appeal to police, not instructions to later Courts of Appeal to upset convictions. If relevant, that would go to upset convictions. If relevant, that would go to weight only.weight only.

Cote J.A.Cote J.A. The defence also cites a 1951 notion that The defence also cites a 1951 notion that

identification must be based upon a verbal inventory identification must be based upon a verbal inventory of the perpetrator's face and build, and not on of the perpetrator's face and build, and not on recognition. (See recognition. (See R. v. Harrison (No. 3)R. v. Harrison (No. 3) (1951), 100 C.C.C. 143 (1951), 100 C.C.C. 143 (B.C. C.A.).) It strikes me as (B.C. C.A.).) It strikes me as dubious psychology. I recognize Clark Gable or Helen dubious psychology. I recognize Clark Gable or Helen Mirren when I see them in movies, but I cannot Mirren when I see them in movies, but I cannot usefully describe them, even their height or weight. I usefully describe them, even their height or weight. I believe that the same is true of many other believe that the same is true of many other witnesses (and many other movie stars). A useful witnesses (and many other movie stars). A useful word portrait requires a very skilful author … In any word portrait requires a very skilful author … In any event, if a trial judge does not adopt such a event, if a trial judge does not adopt such a psychological theory, who am I to force it upon him? psychological theory, who am I to force it upon him? Identification is a factual question, not a legal one.Identification is a factual question, not a legal one.

Cote J.A.Cote J.A.

Whether seven witnesses with a Whether seven witnesses with a fleeting glance are more reliable fleeting glance are more reliable than one may be a complex than one may be a complex question, but it is academic here, question, but it is academic here, where there are two independent where there are two independent untainted witnesses who had much untainted witnesses who had much more than a fleeting glance. more than a fleeting glance.

Berger, J.A.Berger, J.A.

Four Crown witnesses identified the Appellant as the driver Four Crown witnesses identified the Appellant as the driver of the offending vehicle. Two, who might have been in a of the offending vehicle. Two, who might have been in a position to identify the driver, did not.position to identify the driver, did not.

Close appellate scrutiny" is required where a conviction is Close appellate scrutiny" is required where a conviction is based solely upon honest but potentially mistaken based solely upon honest but potentially mistaken eyewitness evidence: eyewitness evidence: R. v. Dorsey…R. v. Dorsey… This is because, of all This is because, of all types of evidence, eyewitness identification is most likely to types of evidence, eyewitness identification is most likely to result in a wrongful conviction, even in cases where result in a wrongful conviction, even in cases where multiple witnesses have identified the accused. As the multiple witnesses have identified the accused. As the Court remarked in Court remarked in R. v. QuerciaR. v. Quercia … "The spectre of … "The spectre of erroneous convictions based on honest and convincing, but erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal mistaken, eyewitness identification haunts the criminal law."law."

Berger, J.A.Berger, J.A.

In In R. v. AtfieldR. v. Atfield (1983), 25 Alta. L.R. (2d) 97 (1983), 25 Alta. L.R. (2d) 97 (Alta. C.A.), this Court re-affirmed that even (Alta. C.A.), this Court re-affirmed that even if a judge is seemingly alive, in a general if a judge is seemingly alive, in a general sense, to the frailties of eyewitness sense, to the frailties of eyewitness identification evidence and the danger of identification evidence and the danger of conviction thereon, an appellate court will conviction thereon, an appellate court will properly interfere if persuaded that the trial properly interfere if persuaded that the trial judge failed to appreciate the significance judge failed to appreciate the significance of evidence which casts doubt on the of evidence which casts doubt on the reliability and accuracy of the eyewitness reliability and accuracy of the eyewitness accounts. accounts.

AtfieldAtfieldThe authorities have long recognized that the danger of mistaken visual The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other of credibility of witnesses, but must be tested by a close scrutiny of other evidence…. [the trier of fact] must be satisfied of both the honesty of the evidence…. [the trier of fact] must be satisfied of both the honesty of the witness and the correctness of the identification. Honesty is determined by witness and the correctness of the identification. Honesty is determined by the [trier of fact]) by observing and hearing the witness, but correctness of the [trier of fact]) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. If the accuracy of the been made or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supporting evidence is lacking or weak, identification are unfavourable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the honesty of the witnesses will not suffice to raise the case to the requisite standard of proof,requisite standard of proof, and a conviction so founded is and a conviction so founded is unsatisfactory and unsafe and will be set aside. It should always be unsatisfactory and unsafe and will be set aside. It should always be remembered that in the famous remembered that in the famous Adolph BeckAdolph Beck case, 20 seemingly honest case, 20 seemingly honest witnesses mistakenly identified Beck as the wrongdoer.witnesses mistakenly identified Beck as the wrongdoer.

AtfieldAtfield It is important that investigating police should It is important that investigating police should

obtain from each identification witness, as soon as obtain from each identification witness, as soon as possible after the alleged observation, the fullest possible after the alleged observation, the fullest description of the person observed, which can be description of the person observed, which can be cross-checked with the descriptions given by other cross-checked with the descriptions given by other witnesses, and with the actual appearance of the witnesses, and with the actual appearance of the person suspected, and with the descriptions given person suspected, and with the descriptions given by the witnesses in court. The witnesses should be by the witnesses in court. The witnesses should be interviewed independently of each other, if at all interviewed independently of each other, if at all possible before they have had the opportunity of possible before they have had the opportunity of communicating, and always without suggestion or communicating, and always without suggestion or assistance. Meticulous notes should be taken of the assistance. Meticulous notes should be taken of the descriptions obtained. ...descriptions obtained. ...

Berger, J.A.Berger, J.A. The concern is not confined, as some would The concern is not confined, as some would

suggest, to fleeting glance cases. suggest, to fleeting glance cases.

Burke (SCC): Burke (SCC):

The cases are replete with warnings about the The cases are replete with warnings about the casual acceptance of identification evidence even casual acceptance of identification evidence even when such identification is made by direct visual when such identification is made by direct visual confrontation of the accused. By reason of the confrontation of the accused. By reason of the many instances in which identification has proved many instances in which identification has proved erroneous, the trier of fact must be cognizant of erroneous, the trier of fact must be cognizant of 'the inherent frailties of identification evidence 'the inherent frailties of identification evidence arising from the psychological fact of the arising from the psychological fact of the unreliability of human observation and unreliability of human observation and recollection' recollection'

In In R. v. R. v. SpatolaSpatola, [1970] 3 O.R. 74 (C.A.), [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he , Laskin J.A. (as he then was) made the following observation about then was) made the following observation about identification evidence identification evidence (at p. 82):(at p. 82):

Errors of recognition have a long documented history. Errors of recognition have a long documented history. Identification experiments have underlined the frailty of Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an have shown the progressive assurance that builds upon an original identification that may be erroneous... The very original identification that may be erroneous... The very question of admissibility of identification evidence in some question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some of its aspects has caused sufficient apprehension in some jurisdictions to give jurisdictions to give pause to uncritical reliancepause to uncritical reliance on such on such evidence, when admitted, as the basis of conviction ...evidence, when admitted, as the basis of conviction ...

Spatola, Spatola, Cont’dCont’d

... Errors of recognition have a long ... Errors of recognition have a long documented history. Identification documented history. Identification experiments have underlined the frailty of experiments have underlined the frailty of memory and the fallibility of powers of memory and the fallibility of powers of observation. Studies have shown the observation. Studies have shown the progressive assurance that builds upon an progressive assurance that builds upon an original identification that may be erroneous original identification that may be erroneous … The very question of admissibility of … The very question of admissibility of identification evidence in some of its identification evidence in some of its aspects has caused sufficient apprehension aspects has caused sufficient apprehension in some jurisdictions to give pause to in some jurisdictions to give pause to uncritical reliance on such evidence, when uncritical reliance on such evidence, when admitted, as the basis of conviction… admitted, as the basis of conviction…

Berger: Application to the Case at Berger: Application to the Case at BarBar

Ms. Rose BoyesMs. Rose BoyesThe taint here is that six weeks after the The taint here is that six weeks after the event, this witness noticed the Appellant's event, this witness noticed the Appellant's name in a newspaper. His photograph name in a newspaper. His photograph accompanied the story. Ms. Boyes then accompanied the story. Ms. Boyes then showed the picture to Shaun Merritt. The showed the picture to Shaun Merritt. The two agreed while viewing the photograph two agreed while viewing the photograph that the man in the photograph was the that the man in the photograph was the man with the cut above his eye at the man with the cut above his eye at the scene of the accident. Dock identification scene of the accident. Dock identification 16 months after the accident further 16 months after the accident further compromises the evidence of this witness.compromises the evidence of this witness.

Tainted WitnessesTainted Witnesses

Shaun MerrittShaun Merritt

This witness acknowledges that Ms Boyes showed the This witness acknowledges that Ms Boyes showed the newspaper photograph to him. But he is doubly tainted newspaper photograph to him. But he is doubly tainted because the investigating constable also showed him a because the investigating constable also showed him a single photograph of the Appellant. He admitted that being single photograph of the Appellant. He admitted that being shown the photograph by the police officer only a few days shown the photograph by the police officer only a few days after the accident would have assisted him in forming the after the accident would have assisted him in forming the opinion that the Appellant was the driver of the motor opinion that the Appellant was the driver of the motor vehicle. Mr. Merritt also testified that he, Ms. Boyes and the vehicle. Mr. Merritt also testified that he, Ms. Boyes and the witness Donna Weber discussed outside of court and prior witness Donna Weber discussed outside of court and prior to Ms. Boyes giving her testimony, what they each saw. to Ms. Boyes giving her testimony, what they each saw. Dock identification 16 months after the accident further Dock identification 16 months after the accident further compromises the evidence of this witness.compromises the evidence of this witness.

Tainted WitnessesTainted Witnesses3. Kevin Keith3. Kevin Keith

The taint here is that the witness acknowledged that the The taint here is that the witness acknowledged that the presence of the accused in the prisoner's dock assisted him in presence of the accused in the prisoner's dock assisted him in identifying the Appellant as the driver. On cross-examination, identifying the Appellant as the driver. On cross-examination, Mr. Keith admitted that prior to his testimony the Prosecutor Mr. Keith admitted that prior to his testimony the Prosecutor asked him whether he thought he might be able to recognize asked him whether he thought he might be able to recognize the individual if he saw him again, and Mr. Keith admitted the individual if he saw him again, and Mr. Keith admitted that he was "a little bit hesitant." and that he paused that he was "a little bit hesitant." and that he paused "probably for a good two seconds" and then responded "probably for a good two seconds" and then responded "maybe". He then clarified that meant he believed "it might "maybe". He then clarified that meant he believed "it might be possible to recognize him". Thereafter, however, he saw be possible to recognize him". Thereafter, however, he saw the Appellant being brought into the courtroom in leg irons the Appellant being brought into the courtroom in leg irons and handcuffs and agreed that this assisted him in forming and handcuffs and agreed that this assisted him in forming his opinion that he could recognize the individual. He also his opinion that he could recognize the individual. He also agreed that the Appellant sitting in the prisoner's box in a agreed that the Appellant sitting in the prisoner's box in a prisoner's uniform and being "the only possible individual in prisoner's uniform and being "the only possible individual in the courtroom" from which to choose assisted him in making the courtroom" from which to choose assisted him in making the identification. the identification.

Tainted WitnessesTainted Witnesses

4. Gerald Albert Lewis4. Gerald Albert Lewis

Mr. Lewis was on a ride-along with EMS personnel. He held Mr. Lewis was on a ride-along with EMS personnel. He held the driver's head from behind as medical attention was the driver's head from behind as medical attention was administered for "a couple of minutes". Mr. Lewis administered for "a couple of minutes". Mr. Lewis acknowledged that he did not make any notations with acknowledged that he did not make any notations with respect to the matter, nor did he provide a witness respect to the matter, nor did he provide a witness statement to the police. He had nothing to refresh his statement to the police. He had nothing to refresh his memory of the accused's appearance. The trial was the first memory of the accused's appearance. The trial was the first time since the accident 15 months earlier that he was time since the accident 15 months earlier that he was asked to identify the driver. He saw the Appellant being asked to identify the driver. He saw the Appellant being brought into the courtroom "with chains around his ankles" brought into the courtroom "with chains around his ankles" and acknowledged that the Appellant was the only and acknowledged that the Appellant was the only individual in the courtroom to choose from when individual in the courtroom to choose from when attempting to identify the man at the scene of the accident.attempting to identify the man at the scene of the accident.

Berger, J.A.Berger, J.A.

In addition to the enumerated taints, all of In addition to the enumerated taints, all of the witnesses in question were able to the witnesses in question were able to provide only a generic description of the provide only a generic description of the driver. The inability to obtain fuller, more driver. The inability to obtain fuller, more detailed descriptions of the person detailed descriptions of the person observed made it impossible to compare observed made it impossible to compare with descriptions given by other Crown with descriptions given by other Crown witnesses and to cross-check with the witnesses and to cross-check with the actual appearance of the accused and with actual appearance of the accused and with any description given at trial.any description given at trial.

Berger, J.A.Berger, J.A.

The failure to conduct a live or photographic line-up is The failure to conduct a live or photographic line-up is equally troubling. Deutscher and Leonoff in their seminal equally troubling. Deutscher and Leonoff in their seminal work work Identification EvidenceIdentification Evidence point out (at 112), that "[t]he point out (at 112), that "[t]he Commonwealth law is consistent in recommending line-ups Commonwealth law is consistent in recommending line-ups as the most appropriate method of pre-trial identification." as the most appropriate method of pre-trial identification." … "The courts have come to expect that evidence of … "The courts have come to expect that evidence of identification should be subjected to the test of a identification should be subjected to the test of a parade ..."; parade ..."; R. v. BrowneR. v. Browne (1951), 99 C.C.C. 141(1951), 99 C.C.C. 141 (B.C. C.A.) at (B.C. C.A.) at 148: "In cases of identification a line-up is almost a routine 148: "In cases of identification a line-up is almost a routine step in the preparation of the prosecution case"; step in the preparation of the prosecution case"; R. v. R. v. BaxterBaxter (1984), 6 O.A.C. 225 (1984), 6 O.A.C. 225 (Ont. C.A.) at 226: "... [I]t would (Ont. C.A.) at 226: "... [I]t would have been preferable if the police had conducted a proper have been preferable if the police had conducted a proper lineup."; lineup."; R. v. SmithR. v. Smith (1975), 12 N.S.R. (2d) 289(1975), 12 N.S.R. (2d) 289 (N.S. C.A.) at (N.S. C.A.) at 299: "I think it is desirable for the police to hold an 299: "I think it is desirable for the police to hold an identification parade before the arrest, trial, or preliminary identification parade before the arrest, trial, or preliminary inquiry, as the case may be." inquiry, as the case may be."

Berger, J.A.Berger, J.A. Insofar as two of the Crown witnesses are concerned (Boyes and Insofar as two of the Crown witnesses are concerned (Boyes and

Merritt), this case closely parallels Merritt), this case closely parallels R. v. DhillonR. v. Dhillon (2002), 166 C.C.C. (3d) 262 (2002), 166 C.C.C. (3d) 262 (Ont. C.A.) where the Court found the (Ont. C.A.) where the Court found the identification procedure was "seriously compromised" when a witness identification procedure was "seriously compromised" when a witness was shown photographs of only one person, who was later accused. was shown photographs of only one person, who was later accused. The risk of mistaken identification is even greater when, as in this The risk of mistaken identification is even greater when, as in this case, a single photograph is shown to a witness. The danger is that case, a single photograph is shown to a witness. The danger is that the witness will identify the picture as opposed to the face viewed at the witness will identify the picture as opposed to the face viewed at the scene of the crime. The Ontario Court of Appeal explained in the scene of the crime. The Ontario Court of Appeal explained in R. v. R. v. GoldharGoldhar (1941), 76 C.C.C. 270 (1941), 76 C.C.C. 270 (Ont. C.A.) at 271: (Ont. C.A.) at 271:

... while no doubt it is often necessary to assist the police in their ... while no doubt it is often necessary to assist the police in their search that photographs should be exhibited to some one who may search that photographs should be exhibited to some one who may be able to pick out a photograph of the person to be sought for, there be able to pick out a photograph of the person to be sought for, there is always the risk that thereafter the person who has seen the is always the risk that thereafter the person who has seen the photograph will have stamped upon his memory the face he has seen photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasion of the in the photograph, rather than the face he saw on the occasion of the crime. The usefulness of such person as a witness may thereafter be crime. The usefulness of such person as a witness may thereafter be seriously impaired ... It is important that trial Judges, as well as the seriously impaired ... It is important that trial Judges, as well as the police, should have this in mind.police, should have this in mind.

Berger, J.A.Berger, J.A. Deutscher and Leonoff point out that the use of a single photograph has Deutscher and Leonoff point out that the use of a single photograph has

been strongly criticized by the Courts. been strongly criticized by the Courts. R. v. SmierciakR. v. Smierciak (1946), 87 C.C.C. 175 (1946), 87 C.C.C. 175 (Ont. C.A.); (Ont. C.A.); R. v. SuttonR. v. Sutton (1969), 9 C.R.N.S. 45 (1969), 9 C.R.N.S. 45 (Ont. (Ont. C.A.); C.A.); R. v. BabbR. v. Babb (1971), 17 C.R.N.S. 366(1971), 17 C.R.N.S. 366 (B.C. C.A.); (B.C. C.A.); R. v. RichardsR. v. Richards, [1964] 2 C.C.C. 19, [1964] 2 C.C.C. 19 (B.C. C.A.). The procedure has been termed "irregular" (B.C. C.A.). The procedure has been termed "irregular" and "unjustified": and "unjustified": R. v. BabbR. v. Babb, , suprasupra, at 372; and the Ontario Court of , at 372; and the Ontario Court of Appeal has characterized evidence obtained in such a manner as Appeal has characterized evidence obtained in such a manner as "valueless": "valueless": R. v. R. v. SmierciakSmierciak, , suprasupra, at 180., at 180.

Dock identification was recognized in Dock identification was recognized in R. v. HibbertR. v. Hibbert (2002), 163 C.C.C. (3d) 129 (2002), 163 C.C.C. (3d) 129 (S.C.C.) at 147 as having an "almost total (S.C.C.) at 147 as having an "almost total absence of value as reliable positive identification" Rabsence of value as reliable positive identification" R. v. Williams. v. Williams (1982), (1982), 66 C.C.C. (2d) 234 (Ont. C.A.) at 253. All identifications in this case were of 66 C.C.C. (2d) 234 (Ont. C.A.) at 253. All identifications in this case were of a shackled individual in the dock wearing remand clothing. There was no a shackled individual in the dock wearing remand clothing. There was no one else in the courtroom who could conceivably have been the person one else in the courtroom who could conceivably have been the person who drove the vehicle.who drove the vehicle.

As to the remaining witnesses, Kelly of E.M.S. was asked whether he saw As to the remaining witnesses, Kelly of E.M.S. was asked whether he saw anyone in the courtroom who he might be able to identify as the driver. He anyone in the courtroom who he might be able to identify as the driver. He answered "not really". He had been in the presence of the driver for 1 1/2 answered "not really". He had been in the presence of the driver for 1 1/2 minutes.minutes.

Trial JudgeTrial Judge I have no doubt that it was a man as testified to by I have no doubt that it was a man as testified to by

Donna Weber and it was the man with the cut over Donna Weber and it was the man with the cut over his forehead who was then seen unloading the his forehead who was then seen unloading the Cadillac …. Four of the five persons who were in Cadillac …. Four of the five persons who were in close proximity to this man on Cliff's lot identified close proximity to this man on Cliff's lot identified him; one did not. I direct myself that such him; one did not. I direct myself that such identification may not be reliable. It was dock identification may not be reliable. It was dock identification in the most classic sense more than identification in the most classic sense more than a year after the event. There were no proper photo a year after the event. There were no proper photo lineups. The accused was in prison overalls in court lineups. The accused was in prison overalls in court and there were no other persons in the courtroom and there were no other persons in the courtroom at the time of anybody's identification to at the time of anybody's identification to realistically choose from.realistically choose from.

Trial JudgeTrial Judge In addition, Shaun Merritt had been shown a single photo of In addition, Shaun Merritt had been shown a single photo of

the accused by a police officer about a week or so after the the accused by a police officer about a week or so after the accident. Rose Boyes had seen the accused on a previous accident. Rose Boyes had seen the accused on a previous court appearance and seen a picture of him in the paper, court appearance and seen a picture of him in the paper, which she cut out and showed to Shaun Merritt. which she cut out and showed to Shaun Merritt. The The evidence of them or one of them taken alone might evidence of them or one of them taken alone might well have left me with a reasonable doubt as to the well have left me with a reasonable doubt as to the reliability of the identification. reliability of the identification. The evidence of four The evidence of four witnesseswitnesses, albeit dock identification, and , albeit dock identification, and notwithstanding the lack of a photo lineup or any notwithstanding the lack of a photo lineup or any other lineup which would have been the preferable other lineup which would have been the preferable procedure, and notwithstanding the lack of procedure, and notwithstanding the lack of identification by the fifth person, identification by the fifth person, satisfied me satisfied me beyond a reasonable doubt that the accused was beyond a reasonable doubt that the accused was operating the Cadillacoperating the Cadillac..

Berger, J.A.Berger, J.A. The emphasized reasoning of the trial judge is, with The emphasized reasoning of the trial judge is, with

respect, in error. The trial judge, in assessing whether the respect, in error. The trial judge, in assessing whether the Crown had proven identification beyond a reasonable doubt Crown had proven identification beyond a reasonable doubt may be said to have equated quantity with quality, may be said to have equated quantity with quality, accuracy and reliability. That is precisely the pitfall accuracy and reliability. That is precisely the pitfall cautioned against by Belzil, J.A. in cautioned against by Belzil, J.A. in R. v. AtfieldR. v. Atfield, , suprasupra. See . See also also R. v. DuhamelR. v. Duhamel (1980), 56 C.C.C. (2d) 46 (Alta. C.A.). (1980), 56 C.C.C. (2d) 46 (Alta. C.A.).

The trial judge failed to appreciate the tenuous nature of The trial judge failed to appreciate the tenuous nature of the identification evidence and its frailties which, taken the identification evidence and its frailties which, taken singly or cumulatively, undermine the reliability of the singly or cumulatively, undermine the reliability of the conviction. He also erred in law by equating the sheer conviction. He also erred in law by equating the sheer number of identification witnesses with quality, reliability number of identification witnesses with quality, reliability and accuracy of their testimony. In my opinion, the and accuracy of their testimony. In my opinion, the treatment of the identification evidence in this case is so treatment of the identification evidence in this case is so manifestly precarious as to require reconsideration at a manifestly precarious as to require reconsideration at a new trial.new trial.

SCCSCC

We are all of the view that given the We are all of the view that given the frailties of the identification evidence frailties of the identification evidence in this case, the appeal must be in this case, the appeal must be allowed and an acquittal entered. allowed and an acquittal entered.