Can Showing Flaws In Eyewitness Identification of the Accused Be a Successful Defence Strategy?
When It Is Shown That There Is a Possibility That the Accused Person Is Other Than the Person Who Committed the Offence a Reasonable Doubt Arises That Requires Charges Against the Accused Be Dismissed.
Determining Whether a Defence Strategy Involving Mistake In Identity May Be Successful
A person accused of an offence may perceive a large hurdle to overcome when an witness swears that the offender is the accused; however, eyewitness identification is prone to flaws, even when the witness is credible and testifying with honest intentions. Whereas the prosecution must prove the allegations beyond a reasonable doubt challenging the accuracy and reliability of the identification may be a good defence strategy.
Generally, the jurisprudence, meaning actual case decisions, show that there are many factors that may weaken the testimony evidence of a witness who purports, and perhaps credibly so, to make an accurate identification of an accused person. Among other things, factors for concern include:
Contrary to common belief, eyewitness identification is substantially unreliable as evidence. The reasons for weakness in eyewitness identification were well stated by the Court of Appeal in the case of R. v. M.B., 2017 ONCA 653 where it was said:
 Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person. See R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451, and R. v. A. (F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39.
 For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than other findings of fact. Justice Doherty summarized this approach in the context of an unreasonable verdict argument in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras. 99-100, where he said:
While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness.
 As stated by Charron J.A. (as she then was) in Miaponoose, at p. 422: “Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness' 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.” Justice Charron goes on to quote from the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10:
Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.
Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification. [Emphasis added.]
Justice Charron continues: “While the circumstances surrounding the witness' identification can be subject to scrutiny in cross-examination, many of the more subjective processes that have led to it are impossible to expose in this fashion.”
Videos or Photos
With the above said, the Court of Appeal then went on to state that where eyewitness testimony is supported further with the use of a clear video recording or photograph, then the eyewitness testimony may become more reliable. Specifically, the Court of Appeal stated:
 Witness identification based on video recordings can under certain circumstances be more reliable as it allows repeated and unhurried consideration. For example, R. v. Nikolovski, 1996 CanLII 158 (SCC),  3 S.C.R. 1197, at para. 23, contemplates a videotape of “sufficient clarity and quality” that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused:
It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape. [Emphasis added.]
The kind of clear video recording described in Nikolovski, however, sharply contrasts with the video recording in this case. The trier of fact must use greater caution where the video or photo quality is poor: R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.
Recognition of Idiosyncracy
Sometimes an accused person is allegedly identified by a witness who purports to recognize the accused person by knowledge of the accused person via previous acquaintance. In such a situation, the courts have taken the position that even the recognition of a prior acquaintance may be flawed. To reduce the risk of an inaccurate identification, a witness purporting to recognize an accused person is, generally, accepted with greater reliability when able to identify the accused person by a specific physical marking or unique feature. It is notable that while the courts have previously considered imposing a requirement of recognition of an idiosyncracy as a condition to admissibility of witness testimony regarding recognition, instead the courts have admitted recognition evidence without recognition of an idiosyncracy into evidence; however, the weight given to the evidence may be diminished. In addition to the above, this concern was also addressed by the Court of Appeal in the M.B. case wherein it was stated:
 Recognition evidence is a subset of eyewitness identification evidence, in which the eyewitness’ identification is based on prior acquaintance. The recognition witness may, or as in this case may not, have been present at the scene of the crime.
 Hourigan J.A. stated in Olliffe at para. 39, “recognition evidence is merely a form of identification evidence”. As such, “[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.”
 The test for admitting recognition evidence is established in the Supreme Court of Canada’s decision in R. v. Leaney, 1989 CanLII 28 (SCC),  2 S.C.R. 393 and re-affirmed by Rosenberg J.A. in R. v. Brown, 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.). At para. 39 of Brown, Rosenberg J.A. stated that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator".
 In Berhe, this court considered the proposition that a recognition witness must be able to point to idiosyncrasies of physical appearance or movement peculiar to the person identified in order for his or her opinion to satisfy threshold admissibility. The proposition was asserted by Harradence J.A. in his dissent in Leaney, 1987 ABCA 206, 38 C.C.C. (3d) 263, at para. 40:
Notwithstanding this general principle of exclusion, there may be occasions when non-expert opinion evidence will be relevant and admissible. Where a witness is so familiar with the accused that he can identify idiosyncrasies of physical appearance or movement, not apparent to the trier of fact in the courtroom, that witness should be able to give his opinion. Two criteria must be satisfied. First the witness must be sufficiently familiar with the accused so as to be aware of the unique features which form the basis of the opinion. Second, the witness must be able to state with particularity what the idiosyncrasies are and show where and how they are revealed on the videotape. In this way the witness is contributing knowledge not otherwise available to the trier of fact. Consideration of these issues should take place within the context of a voir dire so the accused can challenge the evidence before it is admitted.
 This court rejected the proposition as a requirement for threshold admissibility. The court in Berhe instead held at para. 22 that the identification of idiosyncrasies of physical appearance or movement were relevant when considering the ultimate reliability of the evidence. I will expand further on this below.
As per the M.B. case, and various other cases cited within M.B., eyewitness identification of an accused person comes with many risks and flaws. While an witness may be honest and credible with genuine belief in the identification, the law requires more than a genuine belief, the law requires that the identification be beyond a reasonable doubt. As said as an apparent strong concern for caution within R. v. Goran, 2008 ONCA 195:
 If I were able to ascertain from the trial judge’s reasons that he did in fact “address [himself] as to the dangers of the identification evidence of witnesses to a crime”, there would be no substance in this ground of appeal. Respectfully, however, I cannot do so, and I am not confident that the trial judge truly addressed his mind to the frailties in the eyewitness identification testimony of Mr. Philipose and Mr. James. Specifically, in this case, the trial judge failed to instruct himself properly about the fallacy of mistaking certainty for accuracy; the remarkable coincidence of both Mr. James and Mr. Philipose picking Mr. Nur out as the perpetrator; the weaknesses of Mr. James’ testimony; and the fundamental flaws in the park and yearbook identifications. In this respect, the cautionary note expressed by Justice Doherty in R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 at 383 (Ont. C.A.) must be kept in mind:
This is a case in which the conviction of the appellant depends entirely on the identification of him by the victim. Where the Crown’s case rests on eyewitness identification, one is always very concerned about the reliability of a finding of guilt. Legal history and data compiled by behavioural scientists demonstrate the validity of that concern: see “Pretrial Eyewitness Identification Procedures”, Law Reform Commission of Canada Study Paper (1983), at p. 7-15. The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law. That ghost hovers over this case.
Accordingly, the courts are expected to use caution when weighing the testimony of an eyewitness who purports the ability to identify who committed an offence. Whereas courts are expected to keep such caution, and whereas a defence may be able to poke holes in the eyewitness testimony so as to establish a reasonable doubt, a defence strategy based on misidentification may be successful.
Identification of an accused person is, even by an eyewitness, should be taken by the courts with caution. Where a witness purports to identify a witness strong weight should be given to the identification only where the indentification is supported by a clear video or photo, or where the witness is familiar with the accused by previous acquaintance and the witness is able to identify unique features and idiosyncracies of the accused.