Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. John, 2021 SKCA 83, May 28, 2021, at paragraphs 18 to 25:

There are three recognized types of identification evidence that may be tendered at trial: eyewitness evidence, identification by the trier of fact and recognition evidence…

Eyewitness identification is the lay opinion of a witness who identifies an accused: “The admissibility of the opinion is based on prior observations, out-of-court identification procedures and confirmation of the opinion in-court by way of an in-dock identification as contemplated by s. 6.1 of the Canada Evidence Act”

Recognition evidence is another form of identification evidence that may be tendered at trial. It most often occurs where the Crown asks a witness with prior familiarity or knowledge of the accused to identify him or her from a video or still photograph presented to that witness at trial.

Recognition evidence is based on a witness’ prior interaction with the accused. It is this prior interaction or knowledge that renders such evidence admissible. In the absence of any prior interaction, the evidence is nothing more than inadmissible opinion evidence.

As a general rule, where recognition evidence is tendered, a voir dire must be held to (a) ensure the witness has sufficient familiarity with the accused, (b) is able to view a photo or video presented in court in a manner that is helpful to the trial judge, and (c) there is no prejudice to the accused from an inquiry into the prior acquaintance.

The last of the three recognized forms of identification evidence is where the trier of fact is invited to make his or her own identification by comparing still photos or a video to the accused as he or she appears in court.

The assessment of a video and its overall value or shortcomings “is a matter that lies particularly within a trial judge’s function” (Delorme at para 38).