New & Notable: Nikolovski Identification

Identification cases are some of the most contentious and frequently appealed; the recent case of R v Adbi, 2011 ONCA 446 is yet another example.
Mustafa Abdi was in the car business; more specifically, he was in the business of exporting high end stolen automobiles.  The case against Abdi included the evidence of police officers who observed and videotaped a man, they alleged to be the respondent at a freight yard where stolen high end automobiles were being delivered.  The lead investigator and an officer who had been on scene later compared the video images of the male alleged to be the respondent with a digital copy of the respondent's driver's licence photo.  Both men testified that they believed that the respondent was the male in the surveillance video [paras 2-3].  There was also two pieces of circumstantial evidence which were corroborative, at least indirectly [para 2].
At trial the trial judge noted that the evidence "may be sufficient unless there is good reason for me to doubt the accuracy of identification that Police Officer Baxter gave".  The trial judge also viewed the video himself and offered the following:
I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket.  I do not have any evidence with respect to it, but my observation tells me it is consistent.  His facial features and structure...The type of haircut - many have it; the skin colour.  All those things are part of it - none determinative.  Glasses or not, as I have said before.
As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same [para 5 OCA].
The respondent was convicted and appealed.
On appeal he argued that the video recordings were not of sufficient quality [para 6].  Rosenberg JA, writing for the court, noted that this issue was a question of fact for the trier of fact and the scope of review is limited to a consideration of whether the quality was such that it would be reasonable for a trier of fact to making a finding [para 6]: see R v Nikolovski, 1996 CanLII 158 (SCC).  After reviewing the video in this context, Rosenberg JA concluded:
The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera.  The quality of the video is good and it is possible to make out this person’s features.  I cannot say that the trial judge’s conclusion is unreasonable [para 7].      
In so concluding Rosenberg JA noted that the length of the video does not make it "unsuitable for use in making an accurate identification" [para 8].  Rosenberg JA further noted that although the trial judge might have appeared to have delegated his responsibility to determine the identification issue it is clear when the entirety of the decision is read that the trial judge properly came to his own conclusion [para 9].
Appeal dismissed.
DG Mack