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Alberta decision highlights issues with in-dock identification

Tuesday, July 05, 2022 @ 2:22 PM | By John L. Hill


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John L. Hill %>
John L. Hill
It has been said that the danger of what is commonly referred to as “in-dock identification” is “that honest but mistaken witnesses make convincing witnesses.” (R. v. Hanemaayer 2008 ONCA 580 at p. 21) It is not uncommon for a Crown witness to point confidently to an accused, identifying that person as the perpetrator. This is referred to as an in-dock identification. When there is a transference of that confidence to a judge, it sets up the danger of a wrongful conviction or an interesting appeal.

A decision on acceptance of a judge’s reliance on identification evidence was the key issue in a recent Alberta Court of Appeal decision (R. v. A.K.B. 2022 ABCA 170). The facts can be summarized as follows:

Two robberies occurred on Aug. 29, 2019, involving five masked adolescents, one early in the day and another robbery somewhat later. A.K.B. was found not guilty after trial of the later incident because he could not be identified. The trial on the earlier robbery was held later. The main Crown witnesses in that trial included two of the individuals convicted in the earlier trial where A.K.B. was acquitted as well as the complainant in the robbery.

In this subsequent trial A.K.B. was convicted. The two who had been found guilty in the previous trial identified A.K.B. as their accomplice. The complainant made an in-dock identification. Although the complainant claimed he was able to see through the mask, his reliance was placed on the black eyes and dark complexion of A.K.B.

Since the two so-called cohorts of A.K.B. were willing to name him as participating in the robbery, their evidence had to be subject to a Vetrovec warning requiring special consideration when considering the reliability of evidence from disreputable or unsavoury witnesses (R. v. Vetrovec [1982] 1 S.C.R. 811). The trial judge noted that the complainant was highly confident in making his courtroom identification of A.K.B. and this confidence was transferred in allowing the trial judge to feel highly confident that A.K.B. was guilty beyond a reasonable doubt.

A three-judge panel of the Alberta Court of Appeal split on the question of whether that confidence was proper. The majority found that the judge properly assessed the complainant’s evidence in light of the known dangers of in-dock identification. Further the evidence was corroborated by the two accomplices. The Appeal Court majority noted the two witnesses had already been convicted and there was “no obvious motivation to shift blame to others.” The evidence was very compelling and deference should be given to the trial judge. Therefore, the appeal should be dismissed.

The motivation to blame others may not be obvious to judges, but it would be to prisoners. No prisoner, whether a juvenile offender or a penitentiary inmate wants to be known as a “rat.” Serious and even lethal consequences could ensue if it could be made known that an offender gave evidence implicating another in crime. Yet to the group of five involved in this robbery, implicating another not associated with their group would make the two who gave evidence heroes in the eyes of the fifth person who got away.

The complainant identified the only Black man in the courtroom. He may have done so confidently and believing that he was telling the truth but many wrongful convictions have been based on such well-meaning testimony.

The dissenting opinion in this case offers a much more persuasive analysis. Not so much weight should be placed on the weight the trial judge gave to the in-dock identification of evidence, the dissent concludes, but rather the trial judge failed to properly assess the reliability of the complainant’s evidence. The dissent writes: “As there is a real chance that the appellant was mistakenly identified by [the complainant] merely for ‘looking black’, appellate intervention is warranted.

The majority of the Alberta Court of Appeal may be right that the confidence shown by the trial judge in convicting the accused was well-placed. Justice may well have been served. However, the well-reasoned dissent gives us good reason to reflect. 

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

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