On appeal Berhe complained that the trial judge did not conduct a voir dire on the recognition evidence. The Court of Appeal agreed that this constituted an error and ordered a new trial.
The impugned evidence was outlined as follows:
Officer Welk testified that when he was shown the three still photographs taken from the surveillance video, he “immediately recognized” Mr. Behre with whom he had had “previous dealings” and “investigations.” He removed a photograph of Mr. Behre from his desk, explaining to the other officer that the desk photo was from a prior Toronto Police Field Investigation Report in 2007 and stating that he was able to recognize him from the document that he had secured from the file. Officer Welk also testified that he had previously met Mr. Behre in person [para 11].
The Court of Appeal made two key findings on the appeal. First, it held that a voir dire was necessary. Second, it rejected the submission by Behre that a more stringent admissibility test requiring “the witness to have sufficient, prior familiarity with the accused’s unique features to enable the witness to describe the accused’s idiosyncrasies as portrayed on the videotape” [para 16].
In rejecting this more stringent test, the Court of Appeal offered the following instructive comments:
In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however [para 22].