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Evidence - Identification (3). R. v. Sturgeon
In R. v. Sturgeon (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal defendant's appeal, finding that while the trial judge "misapprehended the corroborative evidence", they did so with immaterial effect.
Here the court considers the evidence law of 'eyewitness identification':[35] The dangers of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification are notorious: see R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at paras. 23-24. Trial judges are required to guard against these dangers by closely scrutinizing the reliability of the witness’s description of the perpetrator and that description’s similarities and dissimilarities with the accused. They must assess the identification evidence against other potentially exculpatory evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 37, 42-44. Trial judges should also evaluate the evidence in light of the four factors derived from this court’s decision in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673, namely:(i) whether the person identified was a stranger or known to the witness since, if the witness recognizes the perpetrator as someone he or she knows, that makes the identification more reliable than trying to remember a stranger;
(ii) whether the circumstances of the identification were conducive to an accurate identification;
(iii) whether the pre-trial identification process was flawed; and
(iv) whether there was independent evidence confirming the identification. This fourth factor, independent confirmatory evidence, “can go a long way to minimizing the dangers inherent in eyewitness identification”: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471. ....
[41] Further, this is not a case where there is contrary evidence casting doubt on Mr. Darnell’s identification of the appellant, such as where the witness described physical characteristics that were inconsistent with the perpetrator’s (Olliffe, at paras. 42, 45; Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, at pp. 489-490), or where there were other witnesses whose evidence contradicted that of the identification witness (Chartier, at p. 490). . R. v. Smith ['cross-racial identification']
In R. v. Smith (Ont CA, 2025) the Ontario Court of Appeal considered 'cross-racial identification':[15] We agree that it would have been preferable for the trial judge to self-instruct on this risk and consider it. In oral argument, he suggested that the defence needed to adduce social science evidence before he could do so. This was incorrect because cross-racial misidentification is a well-recognized danger which is the subject of judicial notice and does not require expert evidence: see, e.g., R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 49; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 29-30, 35; R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610. Failure to grapple with it can be a reversible error if it poses a serious danger in the circumstances of the case: R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23.
[16] But this risk was not a serious danger in the circumstances of this case so the trial judge’s failure to consider it was not fatal. This was not a case where the eyewitnesses were purporting to positively identify the appellant as the assailant, rather than simply providing descriptions of what the assailant had looked like. The defence did not articulate any case-specific factors which increased the risk and, as the Crown submits, it did not impact the accuracy of the witnesses’ descriptions of the assailant’s skin colour, height, and clothing on which the trial judge relied. Further, as we explained, the trial judge carefully examined all the other relevant factors, as in R. v. Lewis, 2022 ONCA 282, at paras. 26-32. . R. v. Vu
In R. v. Vu (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal Crown appeal, here from "acquittals on two counts of sexual assault and one count of forcible confinement."
The court considers 'similar fact' evidence, here in an identification context:[36] Similar act evidence is presumptively inadmissible. The Crown holds the onus of establishing, on a balance of probabilities, that the evidence should be admitted. That onus is met where the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. Although the trial judge did not refer to any case law, he correctly summarized these legal principles.
[37] The probative value of the evidence comes from the objective improbability of coincidence: Handy, at paras. 47-48. The prejudice comes from both moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice concerns itself with whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice comes from the injection of delay and complexity into the trial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 65, 68; Handy, at para. 31. Some of these concerns are attenuated in judge-alone trials such as this one: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 88; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; and R. v. MacCormack, 2009 ONCA 72, 95 O.R. (3d) 21, at paras. 56, 68-69.
[38] As the trial judge noted, where the proposed evidence is directed at the issue of identity, the law insists upon a “high degree of similarity” or “striking” similarity”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98; and R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 39. The reason for a heightened bar for similarity relates to the driver of cogency when it comes to the similar act evidence being used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19; see also, Handy, at para. 78; and Atwima, at para. 39.
[39] There exist occasions where acts are so strikingly similar that they will constitute the offender’s signature or trademark: Arp, at para. 45; see e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12, and 24. In those situations where signatures or trademarks do not exist, striking similarities can still arise from an “accumulation of commonalities” that, when considered together, are sufficient to reveal an improbability of coincidence that two or more people would display these matching characteristics: Arp, at para. 45; Handy, at para. 81.
[40] In assessing whether the proffered evidence has this cumulative effect, Binnie J. in Handy, at para. 82, provided a list of helpful considerations:(a) proximity in time between the acts;
(b) the extent to which they are similar in detail;
(c) the number of acts said to be similar;
(d) the circumstances surrounding or relating to the acts;
(e) the distinctive feature(s) that may be involved in the acts;
(f) whether there exist any intervening events; and
(g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” [41] Accordingly, similar act evidence is not considered on a piecemeal basis. Rather, the goal is to consider whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actor. If so, the trial judge must go on to the second stage and determine whether the evidence is linked in some way to the accused: R. v. Woodcock, (2003), 2003 CanLII 6311 (ON CA), 14 C.R. (6th) 155 (Ont. C.A.), at para. 81; Arp, at paras. 54-56. There need only be “some evidence” linking the accused to the acts: R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954; Perrier, at para. 24; Durant, at para. 91; and Atwima, at para. 42. To be sure, this is a “low evidentiary threshold”: Jesse, at para. 63.
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