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

IDENTIFICATION EVIDENCE-VIEWING OF A SENT PHOTOGRAPH BEFORE IDENTIFICATION

R. v. CUMMINGS, 2023 ABCA 288, OCTOBER 16, 2023.

FACTS: The accused was convicted of the offence of sexual assault.  At the trial, the Crown presented evidence that the complainant “messaged a stranger on the Grindr app which led to a sexual assault at the stranger’s residence. Prior to arriving at the stranger’s residence, the complainant had requested from the stranger and received a facial photograph which the complainant downloaded to his cell phone. When the complainant reported the matter to the police, he provided the police with the facial photograph of the appellant. Approximately two weeks later, the complainant picked the appellant out of a photo lineup as the person who had sexually assaulted him. Before partaking in the photo lineup, he looked at the facial photograph sent by the stranger” (see paragraph 2).

The accused appealed from conviction.  He argued, in part, that the trial judge erred in law “by failing to properly assess the reliability of the appellant’s identification evidence”.

HELD:  The appeal was dismissed.  The Alberta Court of Appeal suggested that the “fact that the complainant viewed a facial photograph and then met the individual that he identified as the appellant prior to any criminal act removes the danger that the stress of being a victim of a criminal offence impaired his ability to accurately observe and retain information pertinent to making an accurate identification…The evidence showed the complainant was specifically seeking to verify the face of the appellant against the photo he received from his electronic contact. It was a comparison of the actual face with a pre-existing picture, not the other way around. This was a ‘special reason for remembering the accused’ which made the identification of the appellant, in this case, more reliable” (at paragraph 35).

The Court of Appeal noted that “[o]ne of the great dangers of identification evidence is that after witnessing a crime, a witness’s memories of the events will be degraded by intervening events or the passage of time before they make the identification. However, where identification is made within a couple of hours of a criminal event, the witness’s memory is fresh and balances the risks of undue suggestion” (at paragraph 36).

The Court of Appeal held that “direct effort by persons using technological tools to verify identification before the fact or promptly thereafter can add to the reliability of identification evidence” (at paragraphs 37 and 38):

“Single photo contamination” and “fleeting glance/time passage” concerns of identification evidence. Identifications unaided by circumstantial evidence must be scrutinized with great care. But circumstances such as ubiquitous CCTV, deposits of DNA, and now with the advent of immediate communications by way of email and text messages, direct effort by persons using technological tools to verify identification before the fact or promptly thereafter can add to the reliability of identification evidence. The trial judge’s conclusion did not become unreasonable by reason of certain factors, that may become concerning and have been recognized in the case law, where there was other circumstantial evidence or other special reasons for a witness being able to identify an offender and which made this identification reliable.

The complainant was in closer proximity to the individual he identified, was with the person he identified for a longer period of time and reviewed the photo of the person he identified before the criminal act and again after the criminal act and confirmed that they were one and the same. These circumstances mitigate many of the concerns regarding the accuracy of identification evidence. He then picked out the appellant in a photo lineup. There was also circumstantial evidence that added to the reliability of the identification evidence.

The Court of Appeal concluded that the trial judge “properly assessed the reliability of the complainant’s identification evidence. She considered the frailties of identification present in this case and concluded that the photo lineup had not been compromised by the facial photo the complainant compared to the individual he met before the sexual assault and again after the sexual assault. She made no error in law or fact in her assessment of the reliability of the complainant’s identification evidence” (at paragraph 42).