The interesting issue in this case involves the admissibility of the in-dock identification evidence: 2013 ONCA 470.
The disputed identification evidence
Part of the Crown’s case against Muir flowed from the registered owner of two of the firearms that were found in the get-away car. The owner testified that a young man from Toronto named “Doug” had visited the tenant, who resided in his basement, every two weeks during the summer months prior to the robbery; and that “Doug” had socialized with him on a few occasions and had expressed a general interest in his handguns. The owner only discovered his guns missing after the robbery. The owner of the two guns provided a description of “Doug” that generally matched the description of the appellant.
While the owner of the guns was unable to select the appellant from a photo line-up nine months later, his description of “Doug” was admitted at trial along with an equivocal in-dock identification of the appellant.
The appellant, on appeal, argued that the judge erred in admitting the gun owners identification evidence and failed to instruct the jury that the in-dock identification had no probative value.
Dealing with this central issue quite succinctly the court provided the following helpful guidance:
In-dock identifications are presumptively admissible, subject to the requirement of a proper limiting jury instruction. In virtually all cases, therefore, in-dock identification evidence is admitted, subject to such an instruction. The appellant argues that this is an exceptional case where the prejudicial effect of the in-dock identification evidence exceeds its probative value, and the evidence should have been excluded.
We agree with the Crown that the in-dock identification in this case was properly admitted, as it was relevant in several respects. Specifically, once Mr. McLeod had testified about his contact with Doug, his description of Doug, and Doug’s interest in the handguns, the jury may well have drawn an adverse inference if Mr. McLeod had not been asked if Doug was in the courtroom. See R. v. Hibbert, 2002 SCC 39,  2 S.C.R. 445, at para. 49. Further, the in-dock identification provided context to the appellant’s argument that Mr. McLeod’s failure to select the appellant from a photo lineup conducted some time before trial proved the appellant’s innocence. See R. v. Maragh, 2007 ONCA 681, 229 O.A.C. 232, at para. 10. The concern as to the prejudicial effect of admitting the evidence could be adequately addressed through a strong and unequivocal caution. [Para 9 and 10] [Emphasis added].
The panel of the Ontario Court of Appeal was similarly untroubled by the judge’s instructions to the jury in:
We are of the view that the trial judge’s instructions on the frailties of identification evidence were adequate. The caution given was indeed strong and unequivocal. After cross-examination, Mr. McLeod was no longer sure that the appellant was the “Doug” he had met several times over the summer. The trial judge noted this change in Mr. McLeod’s testimony and told the jury to either give it no weight or only the slightest value. This caution was coupled with specific reference to the other frailties in Mr. McLeod’s evidence, including his failure to identify the appellant in a photo lineup held much closer to the date of the offence. Nothing further was required in the circumstances. [Para 10] [Emphasis added].
In assessing the strength of the appellant’s claims, the court also pragmatically noted that in this case the impugned identification evidence did not bear the entire weight of the Crown’s case:
We also note that this case is quite different from the classic case where the in-dock identification is central to the Crown’s case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court. Here, the appellant was caught fleeing the scene and the in-dock identification was only one of several pieces of evidence linking the appellant to the guns found in the car. In addition, Mr. McLeod had had considerable contact with Doug over a summer and had given police a description of Doug that resembled the appellant. [Para 11] [Emphasis added].