Identity

Jean NOLET Appeal

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Police Guidelines: Pretrial Eyewitness Identification Procedures

Criminal Law Series, Study Paper (1983)

Police Guidelines: Pretrial Eyewitness Identification Procedures

Criminal Law Series, Study Paper (1983)
Law Reform Commission of Canada — Neil Brooks

Background

This comprehensive study examined the reliability of eyewitness identification procedures used by Canadian police forces. The research revealed alarming statistics: Professor Borchard's study of 65 wrongful convictions found that in 29 cases, mistaken eyewitness identification was largely responsible, with many cases showing no resemblance between the wrongfully convicted person and the actual criminal. The study also found that jurors place undue reliance on eyewitness testimony — in one English study, 74% of people were convicted when eyewitness testimony was the only substantial evidence against them.

Issues

1. How can police identification procedures be standardized to reduce wrongful convictions?
2. What psychological factors affect the reliability of eyewitness testimony?
3. How should suspects' rights be protected during identification procedures?

Key Findings

The study established that eyewitness testimony is inherently unreliable due to psychological factors including perceptual filling-in, memory distortion, and the influence of suggestion. Cross-examination is often ineffective at exposing these reliability issues because many variables affecting accuracy cannot be exposed through questioning. The research showed that witnesses often fill in missing details unconsciously and become progressively more certain of their identification over time, even when initially uncertain. Most significantly, psychological studies demonstrated that honest, well-meaning witnesses can be completely mistaken in their identifications.

Recommended Guidelines

The Commission proposed comprehensive guidelines including: lineups must be held except in special circumstances; witnesses should be separated and not discuss the suspect's appearance; police officers must not suggest the suspect's identity; proper records must be maintained; suspects have the right to counsel; and identification procedures should follow a hierarchy of reliability (lineup preferred over photographic display, which is preferred over confrontation). The guidelines emphasize that the most reliable procedure available should always be used.

Key Takeaway

Eyewitness identification is the leading cause of wrongful convictions, despite being highly trusted by juries.

Anyone facing charges based on eyewitness identification should understand that this evidence, while compelling to juries, is scientifically proven to be unreliable. The procedures used by police during identification can significantly impact reliability — improper lineups, suggestive comments, or failure to follow proper protocols can create or reinforce mistaken identifications. Defendants should carefully examine how any identification procedure was conducted and whether proper safeguards were followed.

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R v Bonnick

[2003] O.J. No. 4297

R. v. Bonnick

[2003] O.J. No. 4297
Ontario Court of Justice — Lampkin J. | August 28, 2003

Background

Leo Bonnick was charged with failing to stop at a red light after a serious three-vehicle collision at Highway 7 and Cosburn Street in Markham. A dump truck had smashed through the intersection, hitting Theresa Mak's Toyota Corolla and then colliding with Terry O'Loane's Nissan Maxima. When Constable Andrew Lo arrived at the scene, he testified that the driver of the dump truck identified himself as Leo Bonnick and produced a valid Ontario driver's licence.

At trial, Bonnick represented himself initially. During cross-examination of the Crown witnesses, he made several statements identifying himself as the dump truck driver — telling witness Theresa Mak "I drove a dump truck," asking witness Terry O'Loane about "coming out of my truck," and making similar admissions to other witnesses. However, when defence counsel later appeared and brought a motion for directed verdict, the Justice of the Peace ruled that the police officer's identification evidence was inadmissible because no voir dire had been held to determine if Bonnick's statement to the officer was voluntary. Without that evidence, the JP found insufficient proof of identity and acquitted Bonnick.

Issues

1. Whether a voir dire is required in Provincial Offences Act cases to determine the voluntariness of statements made to persons in authority
2. Whether there was sufficient evidence of identity without the officer's testimony to put the defendant to his election

The Voir Dire Requirement

The Crown argued that provincial offences are civil in nature and shouldn't require the same strict voir dire procedures as criminal cases. They relied on the 1978 Supreme Court decision in R. v. City of Sault Ste. Marie, which described regulatory offences as "civil in nature" with "limited application" of criminal law principles.

However, Justice Lampkin noted a conflicting 2001 Supreme Court pronouncement in R. v. 974649 Ontario Inc., where Chief Justice McLachlin stated that provincial offences courts are "quasi-criminal courts" that are "more criminal than civil in nature." Lampkin concluded that once imprisonment becomes a possible penalty (as it does under Part III of the POA), statements to persons in authority must be proven voluntary through a voir dire. He extended this rule to all provincial offences for consistency, reasoning that "they are all provincial offences and should be subject to the same rules of evidence."

The Identity Evidence

While upholding the voir dire requirement, Justice Lampkin found the Crown's alternative argument succeeded. Even without the officer's inadmissible testimony, there was sufficient evidence of identity from Bonnick's own admissions during cross-examination. The court noted that Bonnick had explicitly told witnesses "I drove a dump truck" and "I came out of my truck," and there was no evidence of any other dump truck being involved in the accident. This evidence, if believed, could support a conviction on the balance of probabilities standard required for directed verdict applications.

Key Takeaway

Provincial offences require voir dires for statements to police, but defendants can still convict themselves through unguarded admissions in court.

Self-represented defendants should understand that while police statements need proper voir dires, anything you say during cross-examination becomes evidence against you. Even when represented by counsel, earlier admissions made while self-represented can come back to haunt you.

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R v CERRATO

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R v Crittenden

Unreported

Her Majesty the Queen v. Jim Crittenden

Appeal from Provincial Court conviction
Newmarket Provincial Court — His Honour Judge R.J. Nadeau | July 19, 1990

Background

On October 8, 1988, Police Officer Woods stopped Jim Crittenden while driving. Crittenden identified himself verbally as "Jim Crittenden" and provided his address as 771 Sedore Avenue, Willow Beach. The officer testified that Crittenden only produced the photo portion of his driver's license — the rest was missing.

The Crown's case relied entirely on Ministry of Transportation documents showing that "Alfred J. Crittenden" with a date of birth of April 26, 1962, living at 771 Sedore Avenue, had his license suspended for unpaid fines. The Crown never asked Crittenden if he had ever used the name "Alfred," never confirmed his date of birth, and never obtained his driver's license number from him during the stop.

Issues

1. Did the Crown prove that the Ministry documents for "Alfred J. Crittenden" actually related to the defendant "Jim Crittenden"?
2. Was proper notice of suspension given under section 34 of the Highway Traffic Act?

The Identity Gap

The appeal judge found a fatal flaw in the Crown's case: there was insufficient evidence linking the defendant to the suspension documents. While both individuals lived at the same address, the judge noted that the evidence revealed "more than one Jim Crittenden at the address of 771 Sedore Avenue in Willow Beach." The Crown had established that Alfred J. Crittenden's license was suspended, but failed to prove that Alfred J. Crittenden and Jim Crittenden were the same person.

The judge emphasized that "documents received from the Ministry must in fact be proven to apply to the defendant before the Court." Without a driver's license number, date of birth, or evidence that the defendant had ever used the name "Alfred," the Crown could not "complete the circle between the person in the certificate and the accused person."

Key Takeaway

The Crown must prove you are the same person named in government records — similar names and addresses aren't enough.

If you're charged based on government documents, carefully examine whether the Crown has actually proven the documents relate to you personally, not just someone with a similar name at your address.

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R v Goodman

Unreported

R. v. Goodman

Case No. 78627883
Ontario Court of Justice — Justice Fuerth | April 23, 2009

Background

Michael Goodman was charged with speeding under section 128 of the Highway Traffic Act. An OPP officer using radar observed Goodman's vehicle, which appeared to be speeding and had a tractor trailer behind it. The officer obtained a speed reading using his radar unit and issued the ticket.

At trial, the Crown presented evidence that the officer was trained by the Ontario Provincial Police and had experience using radar devices in the field. However, significant gaps emerged in the officer's testimony about the radar operation and the circumstances of the stop.

Issues

1. Whether the officer was properly qualified to operate the radar device
2. Whether there was sufficient evidence that the radar reading was accurate and reliable

The Radar Evidence Problems

The defence lawyer, M. Higgins, systematically exposed critical weaknesses in the radar evidence. The officer admitted he had "no notation" and "no recollection" of how far away Goodman's vehicle was when he first observed it or when he activated the radar. When pressed, the officer could only estimate the distance as "maybe a kilometre, maybe two kilometres" but acknowledged the radar unit had "a specific limitation for its accuracy" and that operating within those limitations was "essential for accuracy."

Most damaging was the officer's admission that while he believed the vehicle was within the radar's "effective range," he didn't know what that effective range actually was based on his training. He had never compared the OPP training manual to the manufacturer's specifications and couldn't provide any precise distance measurements. Despite this, he testified that he believed the target vehicle was "within one kilometre" — a conclusion Justice Fuerth found "troubling" given the complete lack of supporting evidence.

The Court's Decision

Justice Fuerth granted the appeal and dismissed the charge. The judge found that while the officer's basic qualifications were acceptable, his evidence about the radar's operation was "conclusory evidence at its best." The officer didn't know the effective range for accuracy, couldn't recall the distance to the target vehicle, and had no reliable basis for concluding the vehicle was within the necessary range for an accurate reading.

The judge emphasized that in "absolute liability" offences like speeding, the evidence must be reliable and accurate. Since there was reasonable doubt about whether the vehicle was within the radar's effective range when clocked, the conviction could not stand.

Key Takeaway

Radar evidence fails when the officer cannot establish that the target vehicle was within the device's effective range for accuracy.

If you're challenging radar evidence, focus on getting the officer to admit gaps in their knowledge about distances and the radar's operational limitations. Courts require reliable evidence, not convenient assumptions.

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R v Goodman AppealandTrial

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R v Hunt

[1986] O.J. No. 1210

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R. v. M.B.

2017 ONCA 653

R. v. M.B.

2017 ONCA 653
Court of Appeal for Ontario — Juriansz, Pepall and Trotter JJ.A. | August 14, 2017

Background

On October 11, 2014, a group of men gathered outside Sheila's Place/Ellis Kitchen Bar in Hamilton. Different factions began fighting, then someone ran up and fired several shots from a handgun at close range, seriously injuring three people. The whole incident lasted only seconds and was caught on the bar's surveillance cameras. M.B., a young person, was charged with multiple serious offences including aggravated assault and firearms charges.

The only issue at trial was identity — was M.B. the shooter on the video? Three witnesses identified him: two police officers who had previous dealings with M.B. and a restaurant employee who had served him as a customer. None of them actually saw the shooting happen, but all claimed to recognize M.B. when they watched the surveillance footage later. There was no other evidence connecting M.B. to the shooting or even placing him in the area that night.

Issues

1. Did the trial judge err in law by failing to properly scrutinize the reliability of the recognition evidence?
2. Was the verdict unreasonable given the quality of the identification evidence?

The Problem with Poor-Quality Video Recognition

The trial judge repeatedly found that the shooter's facial features were "not visible" on the surveillance video due to its poor quality. He admitted he "quite candidly" couldn't make out hair features that police officers claimed they could see. Most tellingly, the judge stated that even after observing M.B. in court for several days, he could say no more than that M.B.'s appearance was "at least very similar" to the shooter — he couldn't definitively identify M.B. as the person in the video himself.

Despite properly instructing himself about the dangers of identification evidence, the trial judge failed to apply that caution. He reasoned that witnesses could identify M.B. from "the way the shooter moved" in the video, even though none of the witnesses actually pointed to any distinctive movement patterns. The Court of Appeal found this was speculation — the judge was essentially guessing at reasons for identification that the witnesses themselves never claimed.

The Court emphasized that recognition evidence requires the same careful scrutiny as any eyewitness identification. Where witnesses have only brief acquaintance with an accused person and cannot articulate specific identifying features, their confident assertions become highly suspect — especially when based on poor-quality video that doesn't clearly show the person's face or distinctive characteristics.

Key Takeaway

Confident identification doesn't equal accurate identification, particularly when based on blurry video surveillance.

Courts must scrutinize recognition evidence with the same caution as any identification testimony. If prosecution witnesses can't point to specific, distinctive features that allowed them to recognize someone on poor-quality video, their confidence alone isn't enough to support a conviction beyond reasonable doubt.

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R v M.D.

[2020] ONCA 290

R. v. M.D.

2020 ONCA 290
Court of Appeal for Ontario — Feldman, Harvison Young and Jamal JJ.A. | May 14, 2020

Background

M.D., a bar manager, was charged with sexually assaulting a 19-year-old university student who worked as a hostess at his bar. The complainant alleged that during her fifth shift, after consuming about ten shots of alcohol, M.D. followed her into a washroom where she was vomiting and sexually assaulted her while she was intoxicated and unable to consent. M.D. testified that the encounter was consensual — that the complainant led him into the washroom and initiated the sexual activity.

The trial judge convicted M.D., finding the complainant's evidence credible and rejecting M.D.'s testimony. Among his reasons for disbelieving M.D., the trial judge stated that he "formed the impression" that "many of [M.D.'s] answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure." The judge criticized M.D. for having attended the preliminary hearing, received Crown disclosure, and heard all the Crown witnesses testify before giving his own evidence.

Issues

1. Did the trial judge err by rejecting the appellant's evidence on the basis that he seemed to have tailored his testimony to the disclosure and evidence he knew would be forthcoming?
2. Should the curative proviso apply if an error is found?

The Constitutional Rights Trap

The Court of Appeal found that the trial judge made a fundamental legal error by using M.D.'s constitutional rights against him. The court explained that accused persons have a constitutional right to receive Crown disclosure and to be present at their trial under s. 650(1) of the Criminal Code. These rights are grounded in Charter guarantees to a fair trial and to make full answer and defence.

The court relied on a long line of cases including R. v. White, R. v. Schell, R. v. Thain, and R. v. Jorgge establishing that it's improper for judges or Crown counsel to suggest an accused "tailored" their evidence based on disclosure or their presence at trial. As Doherty J.A. explained in White: "That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons."

The court acknowledged there may be a "natural temptation" to reason this way, but emphasized that this temptation "must be resisted" because it undermines an accused's statutory right to be present and constitutional rights to fair trial and full answer and defence.

Key Takeaway

Trial judges cannot use an accused person's exercise of their constitutional rights as evidence against them.

If you're facing charges and the judge or Crown suggests you're "tailoring" your evidence because you received disclosure or were present during the Crown's case, this is a serious legal error that can form the basis of a successful appeal. Your right to know the case against you and to be present at your trial cannot be turned into evidence of dishonesty.

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R v Nolet

Unreported

Her Majesty the Queen v. Jean P. Nolet

Ontario Court (Provincial Division) — Brampton, Ontario
Justice of the Peace J. Farnum | January 28, 1994

Background

On September 10, 1993, at 4:14 p.m., Manuel DaSilva was driving his Jetta southbound on Queen Street north of Pearl Street in Mississauga during rainy conditions. Traffic was moving slowly — about 20-30 km/h due to the weather and road conditions. A Mercedes Model 540 Sports was parked on the side of the road, and as DaSilva approached, the Mercedes suddenly pulled out into traffic directly in front of him. DaSilva was only about ten metres away when this happened. Despite trying to avoid the collision, the slippery road conditions made it impossible to stop in time, and DaSilva struck the Mercedes broadside.

Jean P. Nolet, the driver of the Mercedes, was charged under Section 142(2) of the Highway Traffic Act for starting from a stopped position not in safety. Nolet didn't appear in court — he was away on business — but was represented by agent G. Ellis, who entered a plea of not guilty on his behalf.

Issues

1. Whether Nolet violated Section 142(2) HTA by starting from a stopped position when it was not safe to do so
2. Whether DaSilva had sufficient opportunity to avoid the collision given the road conditions and circumstances

The Court's Analysis

The Crown's case relied entirely on DaSilva's testimony, which painted a clear picture of what happened. DaSilva testified that he was following traffic at a reasonable speed for the conditions, maintaining proper distance from other vehicles. The Mercedes was parked and "came out" suddenly when DaSilva was only about ten metres away. The road was slippery from rain, making it impossible to stop safely.

Defence counsel Ellis argued that DaSilva was traveling too slowly for normal conditions and that the collision occurred because DaSilva failed to see the vehicle in time, not because Nolet acted unsafely. The defence suggested that a lane change might have been more appropriate than attempting to brake on the slippery road.

However, Justice of the Peace Farnum found the Crown's evidence compelling. The court determined that someone 30 feet away, traveling at 25 feet per second (about 30 km/h), would not have had sufficient opportunity to avoid the collision when the Mercedes pulled out. The court accepted that Nolet had violated Section 142(2) HTA by failing to ensure it was safe before starting from his stopped position.

Key Takeaway

Drivers must ensure the roadway is completely clear before pulling out from a parked position, especially in poor weather conditions.

This case demonstrates that even when traffic is moving slowly due to weather, the responsibility remains on the driver leaving a parked position to ensure safety. Weather conditions that affect stopping distances make this duty even more critical, not less.

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R v Turner

[2012] O.J. No. 3859

R. v. Turner

[2012] O.J. No. 3859
Ontario Superior Court of Justice — Justice C. Hill | August 2012

Background

On September 28, 2008, OPP Constable Jason Tardif stopped a 1993 Chrysler with an expired licence validation sticker near Caledon. The driver couldn't produce a valid licence or registration, but orally identified himself as Donald Arthur Turner, complete with a birth date of October 15, 1963, and said he lived in the Magnatawan area. The officer spent over an hour with this driver, conducting a vehicle inspection and writing up six provincial offence notices for documentation and safety violations.

Here's where it gets interesting: Donald Turner never showed up to court and was convicted in absentia. But when he got the notice, Donald complained to police that he hadn't been driving that day — it was actually his younger brother Douglas who had falsely given Donald's name to the officer. After a follow-up investigation, Douglas Turner was charged with obstruction of justice for misleading the police officer about his identity.

Issues

1. Was the officer's identification of Douglas Turner as the driver reliable enough to prove the charge beyond a reasonable doubt?
2. Could the circumstantial evidence overcome the weaknesses in the eyewitness identification?

The Identification Problem

This case is a masterclass in why police officers need to take proper notes. Constable Tardif made a critical error: despite spending significant face-to-face time with the driver, he made no contemporaneous notes about the person's physical appearance. No description of height, weight, hair colour, distinctive features — nothing. He explained this was "normal" because he believed the driver had properly identified himself.

Two years later at the preliminary inquiry, the officer was asked to identify Douglas Turner in court while looking directly at him. But under cross-examination, he admitted he couldn't remember basic details like the driver's height, weight, or eye colour. The court noted that Douglas Turner was noticeably missing most of his teeth and walked with a limp — distinctive features that should have been memorable if the officer had truly spent an hour with him.

The prosecution tried to rely on circumstantial evidence: the driver had correctly provided Donald Turner's name, birth date, and area of residence, and had produced an expired insurance card in the name of Wanda Hodgson (who lived at an address the driver had mentioned). But the court found this wasn't enough to overcome the fundamental identification problems.

Key Takeaway

Poor police note-taking and weak identification evidence can sink a prosecution, even when circumstantial evidence suggests guilt.

The court applied well-established principles about the dangers of eyewitness identification, particularly noting that in-dock identifications at trial are "essentially valueless." Without proper contemporaneous notes and with only generic physical descriptors offered years later, the identification was too unreliable to support a conviction.

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R v Zilaie

[2002] OJ No 2144

R. v. Zilaie

[2002] O.J. No. 2144
Ontario Court of Justice — Krelove J. | Heard November 7, 2000; Judgment May 17, 2002

Background

On May 23, 1999, Constable Maureen Light responded to a single-vehicle accident in Brantford, Ontario. A motor vehicle had caught fire after colliding with a telephone pole. At the scene, she spoke with the driver and with another person who identified himself as the owner of the vehicle. This person showed the officer what appeared to be a vehicle ownership document with the name "Maziar Zilaie" on it, and also produced a valid Ontario driver's licence in the same name. When the officer asked for proof of insurance, the person couldn't provide it.

Zilaie was charged under Section 2(1)(b) of the Compulsory Automobile Insurance Act for being the owner of a motor vehicle and permitting it to be operated on a highway without insurance. The case went to trial before a Justice of the Peace, but Zilaie didn't show up. The Justice of the Peace acquitted him anyway. The Crown appealed this acquittal to the Ontario Court of Justice.

Issues

1. Whether the Crown had proven beyond a reasonable doubt that Zilaie was the owner of the vehicle
2. Whether the constable's testimony about the ownership document was admissible evidence

The Hearsay Problem

The Crown's entire case fell apart on a basic evidence rule: hearsay. Constable Light testified that someone at the scene showed her an ownership document and that she "reviewed and determined" it was in Zilaie's name. But this testimony was hearsay — she was repeating what a document said, not providing direct evidence of ownership.

The court explained that such hearsay evidence is generally not admissible unless it falls within specific exceptions. The Crown could have used the "principled approach" established by the Supreme Court of Canada, but they would need to prove both necessity and reliability. They failed to do this. Alternatively, the prosecution could have simply obtained and filed a certificate from the Registrar of Motor Vehicles under Section 210 of the Highway Traffic Act — but they didn't do that either.

Justice Krelove noted that the result might have been different if Zilaie had actually admitted he owned the vehicle, but there was no such admission in evidence.

Key Takeaway

The Crown must prove vehicle ownership through proper evidence, not just a police officer's description of what a document said.

This case shows how fundamental evidence rules can defeat even seemingly straightforward prosecutions. When the Crown relies on documents to prove ownership, they need to either introduce the actual documents properly or get official certificates from the government registry.

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