The Ontario Court of Appeal’s decision of R. v. Gough, 2013 ONCA 137, released March 6, 2013, is another reminder to trial judges of the significant frailties of identification evidence and the special scrutiny required when assessing cases of this nature.
Mr. Gough was convicted of a street level robbery in Ottawa. The only issue of the trial was the identification of the robber based upon the eyewitness testimony of the victim. The interaction between the victim and robber was brief and without any prior familiarity. A period of time had elapsed from the time of the robbery to the time the victim alleged to have seen him again. The victim was also suffering from schizophrenia at the time of the robbery and not on his medication. The accused was “in dock” identified at trial 14 months after the fact.
In setting aside the conviction and ordering a new trial, Justice Epstein held that the trial judge erred in failing to properly direct himself or scrutinize the “significant frailties” of the identification evidence, noting that this is particularly important to do when there is no independent corroborating evidence. It also held that despite his self-caution that “the court should be cautious when looking at identity” and it is “an area where mistakes are made”, this was insufficient to the degree of scrutiny required in these types of cases. The Court of Appeal also noted that the judge committed the fallacy of equating certainty of the witness with accuracy. The Court wrote:
 Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v. Nikolovski,  3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales,  2 S.C.R. 461, at pp. 461-62; R. v. Burke,  1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238,  O.J. No. 1248, at para. 5; Goran, at paras. 26-27.
 The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R. v. Carpenter,  O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), 165 O.A.C. 131,  O.J. No. 4010, at para. 8.
 As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance; R. v. Boucher, 2007 ONCA 131,  O.J. No. 722, at para. 21. The same can be said of in-dock or in-court identification; R. v. Hibbert, 2002 SCC 39,  2 S.C.R. 445, at 468-69; R. v. Tebo (2003), 172 O.A.C. 148 (Ont. C.A.), at para. 19.