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EYEWITNESS EVIDENCE

  • In R. v. Drummond, [1999] N.S.J. No. 44 (NSCA per Roscoe, JA) held that an issue as to identification is a valid ground of appeal.

  • Justice Roscoe then cites the case of R. v. Burke, [1996] 1 S.C.R. 474; [1996] S.C.J. No. 27, the Supreme Court of Canada applied s. 686(1)(a)(i) in determining that acceptance by the trial judge of unreliable identification evidence led to an unreasonable verdict.  Justice Sopinka, for the court, adopted R. v. Spatola (1970), 10 C.R.N.S. 143, on the dangers inherent in identification evidence, at paragraph 52:


       The cases are replete with warnings about the casual acceptance of identification evidence even when such  identification is made by direct visual confrontation of the accused.  By reason of the many instances in which   identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of   identification evidence arising from the psychological fact of the unreliability of human observation and recollection": R. v. Sutton, [1970] 2 O.R. 358 (C.A.), at p. 368. In R. v. Spatola, [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p. 82):

 

Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous.... The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction....  [Emphasis added (by S.C.C.).]

 

The trial judge made no comment on the frailty of the identification evidence other than the general statement that she found L.'s evidence credible and accepted it. No reference is made to the fact that the appellant was not identified in court and that no explanation for failure to ask L. to do so was given.  No reference is made to the erroneous identification made by T. using the photograph of the appellant.  Given the unsatisfactory nature of L.'s evidence in general, this uncritical reliance on the unorthodox identification evidence renders the conviction unreasonable.  Pursuant to s. 686(1)(a)(i), I would quash the conviction.

  • Also see: per Bateman J.A. in R. v. Barrett and Campbell, [2000] N.S.J. No. 178, 2000 NSCA 76: and Roscoe, J.A in R. v. Downey, [2000] N.S.J. No. 311 (NSCA)

 

  • In R. v. Downey upon an application of the review, Justice Roscoe held:


¶ 14      Having reviewed and reweighed the evidence, I am satisfied that the conviction was reasonable.  The identification of the appellant by Constable Hussey was not based on a fleeting glance or brief view of the accused.  The totality of the circumstances leading Constable Hussey to identify the appellant as the person involved in the drug sale were:


 -  He observed and spoke with the person in the blue jacket during two separate lengthy transactions on the same evening.

 

-  The person he spoke to said his name was Speedy.  The appellant's nickname is Speedy.

 

-  The person he dealt with wore a blue jacket and was hanging around with a man in a long leather jacket in the Primrose Street area, late at night in February.  The person Constable Astephen said identified himself as Thomas Downey wore a blue jacket, was with a man in a leather jacket and was in the same area where Constable Hussey had interacted with them.

 

-  Constable Hussey examined a photograph of the appellant shortly after last meeting with him.

 

¶ 15      In addition, both Constables Astephen and Hussey agreed that the Thomas Downey sitting in court was the man with the blue jacket that they met on February 27-28, 1998. Furthermore, the appellant agreed that he was the person in the photograph.


  • In R. v. Clayton [2000] N.S.J. No. 337 (NSSC) Justice MacDonald A.C.J.S.C.  commented:

 

53  In an appropriate case, a trier-of-fact may be justified in convicting on the evidence of a single eye-witness: see Pelletier v. The Queen, [1996] 3 S.C.R. 601 at 601 per Lamer C.J.C. (Affirming [1995] A.Q. No. 1129 (C.A.)).  In this regard, at page 413 of the Nikolovski decision, Cory J. stated:


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.

 

54  A fleeting glance of a suspect by an eye-witness is generally unsatisfactory:  Regina v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1 per Abella J.A.

Jim O'Neil, LL.B.

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