Identification cases are some of the most contentious criminal prosecutions; this is especially so where the identification includes an eye-witness identification. Cases such as R v Tebo, 2003 CanlII 43106 (Ont CA) and R v Holmes, 2002 CanLII 45114 (Ont CA) are examples of cases overturned due to concerns about the frailties and dangers of convictions based on such evidence.
While these cases offer helpful insight into the dangers and limits on eye-witness identification ever case is unique and their ratios are sometimes misunderstood or misapplied. The recent ruling in R v Manley, 2011 ONCA 128 is illustrative.
On November 11, 2006 a music store in Trenton was robbed by a man with a shotgun. At the time of the time of the robbery there was present the owner, a salesperson and a customer. The owner and salesperson gave descriptions of the robber. The salesperson and customer were unable to pick Manley out of a lineup. The owner did not view a lineup.
At trial the salesperson and customer testified that Manley had "very similar" features to the robber [para 9]. The owner, who had not been shown a lineup, testified at trial that he had recognized the robber during the preliminary hearing:
Yes. Um, when I was at the…the last time I was in court we had, um…–you were asking questions similar to what we are now. Um, but at that time I was asked, “Can you identify him”, and I was the distance away I am now, from behind you. And at that point I was unable to see the features that I had recognized at the robbery. But on going out of that courtroom, I was as close to him as the jurors are to each other, as I walked past him, and then I recognized him [para 7].
With respect to evidence of the salesperson the trial judge offered the jury the following:
That’s not identification beyond a reasonable doubt for sure, but is that, when taken with all of the evidence, sufficient for you to come to a conclusion as to whether the accused was or was not the perpetrator? [para 18].
With respect to the evidence of the owner the trial judge offered the jury the following:
[Y]ou heard her explanation about why she didn't identify him during the preliminary inquiry but did later. How reliable is that identification? Even if she's telling the truth, is it reliable? How much does that tip the scales either way in your deliberating as to whether identity has been proven beyond a reasonable doubt? [para 19].
Manley was convicted and appealed. On appeal Manley complained about the charge to the jury on the identification evidence; relying on Tebo and R v Hibbert, 2002 SCC 39, he argued that the charge should have instructed the jury that the evidence was of worthy of virtually no weight.
In rejecting that ground of appeal the Court of Appeal offered the following:
In my view, it would have been preferable had the trial judge given a stronger warning about the nature and weakness of the in-dock identification evidence...However, I am not able to say that, in the circumstances of this case and reading the charge as a whole, the manner in which the trial judge instructed the jury on this issue amounted to an error of law.
Here, the in-dock identifications – if indeed they amounted to in-dock identifications – were qualified...
The trial judge did warn the jury in general terms about the dangers of eyewitness and in-dock identification evidence, and I am not persuaded that the shortcoming in his instruction that I have identified amounted to a reversible error of law in the circumstances of this case.
I am satisfied that the jury would have appreciated from the manner in which the case was presented by the Crown and from what they were told by the trial judge that, standing on its own, the identification evidence was weak, and that it had to be assessed on the basis that it amounted to no more than one small piece of a much larger puzzle [paras 21 and 23-25].
DG Mack