COURT OF APPEAL FOR ONTARIO
Paciocco, Sossin and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Gregory Goodridge
Appellant
Brandon Chung, for the appellant
Heather Fregeau, for the respondent
Heard: May 13, 2026
On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated February 11, 2025, with reasons reported at 2025 ONSC 863, dismissing an application for certiorari from the order of Justice Malcolm McLeod of the Ontario Court of Justice, dated March 16, 2023.
OVERVIEW
1The appellant, Gregory Goodridge, was committed to stand trial after a preliminary inquiry on a charge of aggravated assault. On the essential element of identity, the committal decision was based solely on the victim’s manifestly unreliable in-dock identification. Mr. Goodridge brought an unsuccessful application for judicial review (i.e., certiorari) to a Superior Court judge, seeking to quash the committal order. This is an appeal of the decision of the review judge.
2Mr. Goodridge, who represented himself in the proceedings below, but who was most ably assisted by counsel before us, argues that the preliminary inquiry judge committed jurisdictional error by applying the wrong legal standard because he failed to apply the decision of R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694. Hay is a jury instruction case where Rothstein J., for the majority, said in obiter that trial judges must direct verdicts of acquittal on motions for directed verdict “where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror”: at para. 41. Mr. Goodridge argues that this decision changed the law that applies to prima facie case determinations, including preliminary inquiries, and that based on its application in this case, he should have been discharged.
3The decision in Hayraises challenging issues, but I am not persuaded that it changed the law relating to directed verdicts of acquittal. If it did so, that change does not apply to preliminary inquiries. I would therefore dismiss the appeal.
MATERIAL FACTS
A. Mr. Goodridge Is Committed After a Preliminary Inquiry
4On March 16, 2023, Mr. Goodridge had a preliminary inquiry in respect of one count of aggravated assault. The Crown’s evidence on the nature of the assault came largely from the victim. He testified that on February 14 of a year he could not remember (but was later revealed to be 2019), he was stabbed three times, after suggesting to an LCBO clerk that they should call the police during a dispute the clerk was having with a tall, grey-haired Black man (the “assailant”). He testified that after he and the assailant had both left the store, they crossed paths a short distance away. After a brief exchange, the assailant began stabbing him in the face and stomach, before fleeing the scene. Police believed Mr. Goodridge to be the assailant and arrested him on a charge of aggravated assault, resulting in the preliminary inquiry that is the subject of this appeal.
5The only contested issue at the preliminary inquiry was whether the Crown had presented a prima facie case that Mr. Goodridge was the assailant. The sole identification evidence was an in-dock identification offered by the victim. To underscore the manifest unreliability of the entirety of his identification evidence, I will describe the responses he gave to questions on the identification issue.
6First, the victim was shown a grainy security video of the assault. It captured a man walking “on the main street”. The victim said he could not recognize this person, because he could not “see his face” in the video, but he added, “looking at the feature[s] and then clothings [sic] that … he has, this is the same person whom I seen in the LCBO.”
7He was then shown two photographic images captured inside the LCBO. The first photo showed three people: (1) a Black man wearing a coat, cap, and hoodie, holding packaged rolls of toilet paper and bags; (2) what appears to be an East Asian man; and (3) a man in street clothes, who appears to me to be an LCBO employee. The victim identified himself as the East Asian man in the photograph. He then said he could not recognize anyone else. In response to further questioning, he confirmed that the photograph was taken inside the LCBO and, based on a jacket depicted in the photograph, he said, “I think – it’s the same night [as the assault], but I don’t exactly remember.” The jacket he was referring to was not identified for the record.
8The Crown then moved to the next photograph, which showed only one man, who the victim agreed to be the same Black man who was in the prior photograph. He was asked if he recognized this man. He responded “yes” and identified this person as “[t]he one who stabbed me.” He then said, “It’s the same face, the one who … stabbed”. The preliminary inquiry judge interjected, commenting, “Well, what about the face? Because on the picture I’m looking at, it’s quite obscure.” The victim responded, “I’m able to see his mouth properly, as well as the clothings [sic] that he’s putting on, and then when he was carrying two bags in his hand.”
9The Crown then asked, “And do you … recognize the person who stabbed you in the court today?” The victim replied, “Yes, Your Honour. He’s hundred percent … I see him here.” The preliminary inquiry judge described this statement as an “in-dock identification” of Mr. Goodridge as the assailant. Mr. Goodridge attempted to object to this identification but was overruled. The Crown also sought to make submissions on the in-dock identification, but this too was rejected by the preliminary inquiry judge, who said, “Yeah, Superior Court may be interested in that, but for the purposes of the preliminary, it is what it is.”
10The preliminary inquiry judge then addressed Mr. Goodridge’s right to cross-examine the victim. He said, “[B]earing in mind … this is a preliminary inquiry only … and that I don’t have any jurisdiction to weigh evidence … or come to any conclusions about … the reliability of the evidence that’s given, either in a very limited sense, is there anything you wanted to do in cross-examination?” Mr. Goodridge declined to cross-examine.
11When the Crown closed its case, the preliminary inquiry judge committed Mr. Goodridge for trial, without inviting submissions from him. He noted “the frailties of the eyewitness identification”, but said, “[T]hat’s a matter that has to be adjudicated upon by the trial judge, not me.”
12Mr. Goodridge began to question the preliminary inquiry judge committing him without asking for his submissions, but before he finished what he was saying, the preliminary inquiry judge interjected, saying:
Well … the only basis upon which I could discharge would be on … the quality of the identification evidence… But I’m not, I don’t have jurisdiction as a preliminary inquiry judge to assess or weigh that, that kind of evidence. I mean, I’m acknowledging that the in-dock identification evidence isn’t terribly good.
13There can be no question that the identification of Mr. Goodridge as the assailant at the preliminary inquiry was manifestly unreliable. The victim’s “recognition” of Mr. Goodridge in court as the man who stabbed him was direct evidence, which, as I will explain, includes “witness testimony as to ‘the precise fact which is the subject of the issue on trial’”, in this case identity: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 22, citing John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at §2.74. But it was an in-dock identification, and in-dock identifications tend to have little probative value, in part because they are inherently suggestive “show up[s]”, where “the only person shown to the identifying witness is the very person suspected” to be guilty of the offence: R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 44-53, for a general discussion of the frailties of in-dock identifications. Where there are additional weaknesses, in-dock identifications may be entitled to “virtually no weight”: R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont. C.A.), at paras. 17-19.
14In this case, there were additional weaknesses with the in-dock identification. As appellant’s counsel aptly put it before us, it “bore all the touchstone dangers of identifications that have led to wrongful convictions in the past: a stranger, cross-racial identification following a brief encounter, unsupported by any pre-trial identification procedures or corroborative evidence.” And see R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 174; R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23. The photographs do little to bolster the reliability of the identification. The victim did not specifically identify Mr. Goodridge as the man in the photographs. Further, the poor quality of the photos caused the preliminary inquiry judge to express skepticism about the victim’s identification of the man they depicted as the one who stabbed him.
15Had this been the state of the evidence after trial, at the very least it would have required a strong jury instruction or a sharp judicial self-direction about the dangers of relying upon it: see Hibbert, at paras. 44-53. I agree with appellant’s counsel that no reasonable juror, properly instructed, could convict on such evidence and that a conviction on this evidence would be an unreasonable verdict: see R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at paras. 69-78, 84-89; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 41.
B. Mr. Goodridge’s Certiorari Application is Dismissed
16As indicated, Mr. Goodridge attempted to quash the committal through a certiorari application. The review judge concluded that the preliminary inquiry judge did not commit jurisdictional error and dismissed the application to quash. In his reasons, the review judge described the long-standing law of committal without citing Hay. Citing Hibbert, at para. 49, he accepted that in-dock identifications suffer from an “almost total absence of value as reliable positive identification”. However, he concluded that in the committal context, while this evidence is “very weak”, the test to be met is whether there is “any evidence” of identity, “no matter how weak.” The review judge reasoned that the fact that in-dock identifications “almost” lack any probative value means that they at least have “a scintilla of probative value” and are thus capable of sustaining a committal.
ISSUES
17Mr. Goodridge submits that the sole issue for consideration is whether any direct identification evidence – in this case, a bare in-dock identification with obvious weaknesses – requires a preliminary inquiry judge to commit an accused to trial. He claims that the preliminary inquiry judge committed a jurisdictional error in concluding as much, and that the review judge erred by failing to recognize this.
18Mr. Goodridge also argued before us that an in-dock identification entitled to virtually no weight is “no evidence.” As I will explain, if that is so, he is entitled to a discharge even if Hay has not changed or modified the committal test.
19In response, the Crown argues that even if the preliminary inquiry judge erred in concluding that manifestly unreliable identification evidence can justify a committal, it was not a jurisdictional error that would have enabled the certiorari application to succeed.
20I would state the issues as follows and address them in the following analytical order:
(a) Was a jurisdictional error raised before the review judge?
(b) Did the review judge err by failing to find jurisdictional error?
(c) Was the in-dock identification “no evidence” requiring a discharge?
ANALYSIS
A. Was a Jurisdictional Error Raised Before the Review Judge?
21A preliminary inquiry judge’s task is set out in s. 548(1) of the Criminal Code, R.S.C. 1985, c. C-46:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
22There is no right of appeal from the decision of a preliminary inquiry judge, only the opportunity to review the decision for jurisdictional error: see Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 955, per McIntyre J. As McLachlin C.J. wrote in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19, it follows that:
[R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100.1
23The Crown argues that if Hay changed the law to require preliminary inquiry judges to discharge accused persons where committal depends on manifestly unreliable identification evidence, the preliminary inquiry judge committed only legal and not jurisdictional error by failing to apply the correct law. It argues that “[i]n the context of the decision to commit for trial, jurisdictional error occurs only if there is no evidence in the record upon which the preliminary inquiry justice could order committal.” It submits that the in-dock identification is and was found by the preliminary inquiry judge to be “some evidence”, and therefore, no jurisdictional error occurred. It asks us to dismiss the appeal on this basis.
24For the purposes of this appeal, I take no issue with the Crown position that an error as to the sufficiency of evidence is not a jurisdictional error, unless there is no evidence on an essential element of the offence charged: see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23; Russell, at paras. 21, 26.2 This standard, which is commonly cited, emerged because it is the exclusive statutory role of the preliminary inquiry judge, and therefore within their jurisdiction, to assess the sufficiency of the evidence before them: Deschamplain, at para. 37; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 173. So long as there is evidence before them supporting committal, an error a preliminary inquiry judge makes in their assessment of whether the evidence is sufficient is made within their jurisdiction: Russell, at para. 26; R. v. Papadopoulous (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at para. 10, leave to appeal refused, R. v. E.H., [2005] S.C.C.A. No. 314.
25That said, preliminary inquiry judges are required to assess sufficiency using applicable legislated standards and will commit jurisdictional error if they fail to apply the statutory sufficiency test. This is because, as Major J. explained in Deschamplain, at paras. 12-13, “the jurisdiction of a preliminary inquiry judge is statutory and not inherent”, such that “’jurisdictional error is committed where ‘mandatory provisions’ of the Criminal Code are not followed’”: citing Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at p. 377.
26The statutory provision that gives preliminary inquiry judges their jurisdiction is s. 548(1) of the Criminal Code: Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, at p. 272. As noted above, s. 548(1)(b) requires preliminary inquiry judges to consider the “whole of the evidence” before discharging the accused. In Deschamplain, the preliminary inquiry judge was found to have committed jurisdictional error by not doing so and therefore failed to carry out his statutory mandate: at para. 38.
27Naturally, judicial authorities provide additional directions on the statutory mandate in s. 548(1). The Supreme Court of Canada has directed that preliminary inquiry judges are to discharge their statutory mandate by applying the sufficiency test expressed in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067: see e.g., R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635,at para. 16. The Shephardtest requires a judge to “commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction", but not otherwise: Shephard, at p. 1080. Relatedly, the Supreme Court has explained that preliminary inquiry judges are not to assess the quality, credibility or reliability of evidence: Arcuri, at para. 30; and see Deschamplain, at para. 15. Although these features of the legal standard are not spelled out in s. 548(1), they form part of the mandatory statutory obligation, and it is a jurisdictional error for a preliminary inquiry judge to fail to respect these constraints: Sazant, at para. 18, citing Dubois, at p. 380.
28It necessarily follows, in my view, that if the decision in Hay instructs preliminary inquiry judges that manifestly unreliable identification evidence is insufficient within the meaning of s. 548(1), it would be a jurisdictional error for the preliminary inquiry judge to refrain from assessing the reliability of manifestly unreliable identification evidence. The preliminary inquiry judge would have committed that jurisdictional error by concluding, as he did, that he did not have jurisdiction to consider the reliability of the manifestly unreliable identification evidence the Crown was relying upon.
29I would therefore find that this appeal raises an issue of jurisdictional error, and I would decline the Crown’s invitation to resolve it based on the limited scope of judicial review and without considering the implications of Hay.
B. Did the Review Judge Err by Failing to Find Jurisdictional Error?
30In my view, the review judge did not err by failing to find jurisdictional error. I am not persuaded, in the current state of authority, that Hay overturned Supreme Court of Canada authority that prohibits judges conducting prima facie case assessments from weighing the reliability of the evidence before them, even in the case of manifestly unreliable identification evidence. But even if Hay did so for directed verdict applications, I would find that the “Hay exception”, if it is an exception at all, does not apply to preliminary inquiries.
31My analysis proceeds in four parts. First, I set out the law that governs a preliminary inquiry judge’s decision to commit an accused for trial. Second, I consider the Supreme Court of Canada’s decision in Hay. Third, I explain why Hay does not change the law of directed verdicts and thus does not change the test governing committal after a preliminary inquiry. Fourth and finally, I explain why if Hay has in fact changed the law of directed verdicts, this change does not apply to preliminary inquiries.
1. The law of committal
32Committal “plays an important, although carefully circumscribed role in protecting the rights” of the accused person, by serving an “important, but … limited screening function”: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 22, 36.3 That screening function confirms that there is sufficient evidence available to the prosecuting authorities to warrant having the accused stand trial, but it does so subject to important limits. I will explain.
33As described, the Shephardtest that applies to preliminary inquiries provides for the committal of “an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction": Shephard, at p. 1080. That base standard of committal also applies when a trial judge is deciding whether to order directed verdicts of acquittal at the end of the Crown’s case, and during the committal phase of extradition proceedings: Shephard, at p. 1080; Extradition Act, S.C. 1999, c. 18, s. 29(1)(a).4 Subject to statutory modifications in the extradition context that permit extradition judges to weigh the plausibility of the case and grant Charter remedies,5 the screening function is limited. This is so the committal judge does not perform the trial functions that the body that would do the trial after committal is charged with performing: R. v. Tenthorey, 2021 ONCA324, 404 C.C.C. (3d) 457, at para. 67, citing Arcuri,at paras. 21-24.
34Those trial functions include assessing the quality or reliability of the evidence, deciding what evidence to believe, and determining which inferences to draw. McIntyre J. made this clear in R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, in the directed verdict context, when he said: “It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury”: at p. 161.
35Notably, in Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, a directed verdict of acquittal was overturned because it was erroneously granted in the face of admissible direct evidence of identification after the trial judge weighed the quality of the identification evidence and found it to be unreliable. This lack of reliability arose from the nature of the initial observation made by the witness and problems with the post-offence identification procedures, including a suggestive in-dock identification. McIntyre J., for the majority, explicitly rejected the suggestion that a judge can, on a directed verdict motion, withdraw identification evidence from the jury because he finds its quality to be wanting: Mezzo, at p. 844. He said this would “encroach upon the jury’s territory”: Mezzo, at p. 844.
36The same limitations apply to the screening function in preliminary inquiries. In Shephard, when identifying the standards that apply to committal for trial, the court directed that judges are to assess the sufficiency of evidence as “if it were believed”: at p. 1080. For the majority, Ritchie J. explicitly rejected the suggestion that a judge should refrain from committing if they conclude that the evidence is “manifestly unreliable”, explaining that proceeding this way would deprive “the members of the jury of their function to act as the sole judges of the truth or falsity of the evidence”: Shephard, at p. 1087.
37McLachlin C.J. also stressed, in the preliminary inquiry committal case of Arcuri,at para. 22, that “[i]t is for the jury to say whether and how far the evidence is to be believed”. She elaborated on this limit when clarifying how committal judges should approach direct evidence as opposed to circumstantial evidence. She described direct evidence as “witness testimony as to ‘the precise fact which is the subject of the issue on trial’”: Arcuri, at para. 22, citing Sopinka, at §2.74.6 Such evidence is called “direct” because it directly asserts a material fact. She described circumstantial evidence as “‘any fact from the existence of which the trier of fact may infer the existence of a fact in issue’”: Arcuri, at para. 23, citing Charles Tilford McCormick, McCormick on Evidence, 5th ed. (St. Paul, Minnesota: West Publishing Co., 1999), at p. 641. As I am about to illustrate, she made clear that in deciding committal, a preliminary inquiry judge must treat both direct evidence and circumstantial evidence as true, without weighing its reliability or credibility.
38She noted that, by definition, direct evidence is “‘evidence which, if believed, resolves a matter in issue’”: Arcuri, at para. 22, citing McCormick, at p. 641. Therefore, direct evidence that an element of the offence exists is sufficient evidence to establish that element of the offence for the purposes of committal because the only remaining question relating to that material issue is “whether the evidence is to be believed, which is a question for the jury”: Arcuri, at para. 32. It follows that “[i]f there is direct evidence as to every element of the offence, the accused must be committed to trial”: Arcuri, at para. 22.
39But when the only evidence offered on an element of the charged offence is circumstantial, the judge must engage in a “limited weighing” of the evidence, “in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw” relating to the material issue:Arcuri, at para. 23. McLachlin C.J. explained, at para. 23 of Arcuri, that when engaged in this limited weighing, “[t]he judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt” (emphasis in original). She also made clear that the judge does not assess the “inherent reliability” of the evidence: Arcuri, at para. 30. And she reaffirmed that a judge cannot discharge on the grounds that the Crown case is “weak”: Arcuri, at para. 33.
40Further, a preliminary inquiry judge cannot discharge an accused simply because the inferences to be drawn from the circumstantial evidence are not solely consistent with guilt. This is because the question in circumstantial cases is always whether “the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence” (emphasis added): R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 6. Accordingly, where the evidence supports both inferences that are consistent with guilt and those that are inconsistent with guilt, the accused must be committed for trial: Jackson, at para. 11, citing Russell, at para. 48. Put otherwise, where multiple inferences exist, the preliminary inquiry judge can only consider those favourable to the Crown: Sazant, at para. 18. The preliminary inquiry judge need not determine that guilt is the only reasonable inference to commit: Arcuri, at para. 25. Once again, that determination is for the body that will conduct the trial after committal.
41It can readily be seen that although the committal test articulated in Shephard, at p. 1080, asks whether there is “any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”, it is an imperfect tool for avoiding unreasonable verdicts. This is because it does not purport to protect against cases built on evidence that is obviously incredible, manifestly unreliable, or that does not satisfy the standards expressed in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, for a reasonable conviction based on circumstantial evidence: see M.M., at para. 68. As indicated, these constraints on the authority of the committal judge to interfere emerge from the limited role they play where another judicial body has the constitutional responsibility to make trial decisions. In giving an overview of the role of the preliminary inquiry judge at the beginning of her judgment in Arcuri, McLachlin C.J. gave a nod to these constraints when she said, “[T]he preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty”: Arcuri, at para. 1 (emphasis added).
2. The decision in R. v. Hay
42Mr. Hay was charged with homicide offences in the shooting of two victims by two suspects, one of whom was described as wearing a “blue/green shirt”: Hay, at paras. 1, 4, 6. The Crown theory was that this suspect was Mr. Hay. The identification evidence the Crown marshalled against Mr. Hay to prove this consisted of the manifestly weak testimony of a witness to the shooting, Ms. Maillard, coupled with circumstantial evidence that arguably linked him to the killing: Hay, at paras. 15-30. He was convicted and ultimately appealed his conviction to the Supreme Court of Canada: Hay, at para. 31.
43The evidence from Ms. Maillard that the Crown relied upon at trial to prove Mr. Hay’s identity consisted, in part, of comments she made when shown a photo lineup shortly after the shooting. This evidence showed that when Ms. Maillard was shown a picture of Mr. Hay, she said, “Out of all of these pictures this gentleman most fits the description of the gentleman I saw shooting”: Hay, at para. 18. She elaborated that she believed the photo of Mr. Hay depicted the shooter in the blue/green shirt on “a percentage scale … maybe 80 percent”: Hay, at para. 18. The detective interviewing her asked, “Are you saying that this photograph depicts the likeness about 80 percent of the person?”, and she replied, “That’s correct”: Hay, at para. 18. He continued, “But are you saying this is the person that did the shooting? I have to have a yes or no”: Hay, at para. 18. She replied, “No, the photograph is about 80 percent … of what depicts the likeness of the person that did the shooting”, and said, “I wish I could”: Hay, at para. 18.
44When the matter came before the Supreme Court of Canada on appeal, Rothstein J. said of this evidence: “Ms. Maillard's initial selection of Mr. Hay from the photo lineup was accompanied by a statement that she was not identifying him as the shooter, but as someone who shared 80 percent of the likeness of the shooter” (emphasis added): Hay, at para. 42.
45The trial evidence disclosed other material weaknesses. Ms. Maillard had been shown a second photo lineup about three weeks after the shooting that contained a photograph of Mr. Hay on the day of the arrest, and she did not select any of the photos:Hay, at para. 21. Then, at the preliminary inquiry, she gave an in-dock identification of Mr. Hay’s co-accused as the shooter in the blue/green shirt: Hay, at para. 22.
46During the trial, she said that she had intended to identify Mr. Hay as the shooter during the first lineup when she said the photo shared an 80 percent likeness with the shooter, and explained that she was being cautious: Hay, at para. 19. Rothstein J. did not treat this testimony as converting her preliminary inquiry testimony into direct evidence of identification. He described her as testifying at trial that “she did intend to identify Mr. Hay as the shooter”: Hay, at para. 43 (italics in original; underlining added). There is a difference between intending to identify someone and identifying them. Put otherwise, her after-the-fact statement of what she intended to say does not change what she said. Notably, Ms. Maillard was not asked to identify Mr. Hay as the shooter in court: Hay, at para. 23.
47During his Supreme Court of Canada appeal, Mr. Hay argued that the trial judge erred by instructing the jury that it could convict him on Ms. Maillard’s eyewitness testimony alone: Hay, at para. 38. The Supreme Court of Canada agreed that it would have been unreasonable for the jury to do so and recognized that it would have been an error had the trial judge given such a direction: Hay, at paras. 40-45. But it concluded that the trial judge had not done so, and this ground of appeal was dismissed: Hay, at paras. 46-56.7
48Mr. Goodridge’s claim that Hay changed the law of preliminary inquiries is based on the following passage from Rothstein J.’s reasoning, at para. 41:
Although the duty to assess the credibility and weight of an eyewitness' evidence sits with the jury and, in some circumstances, the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror; see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-25; R. v. Reitsma, 1998 CanLII 825 (SCC), [1998] 1 S.C.R. 769, rev'g (1997), 1997 CanLII 3607 (BC CA), 97 B.C.A.C. 303; R. v. Zurowski, 2004 SCC 72, [2004] 3 S.C.R. 509; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Indeed, where the Crown's case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict (Arcuri, at para. 21). [Emphasis added.]
3. Hay did not reverse Mezzo and change the law
49Mr. Goodridge offers two avenues for preferring Hay to Mezzo and related caselaw. First, he contends that Hay directly overrules the rule from Mezzo and Arcuri that direct evidence of identification, regardless of its inherent frailties, mandates a committal. Second, Mr. Goodridge advances the alternative position that even if Hay did not overrule this line of cases, Hay is inconsistent with it. He adds that Hay reflects an accumulation of judicial wisdom regarding the dangers of eyewitness evidence and has eroded the foundation of the rule in Mezzo. He argues that this permits us to follow Hay instead: see R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 202, 219-21, per Côté, Brown, and Rowe JJ. (concurring).
50Mr. Goodridge offers two further policy reasons why Hay should be followed even if it has not overruled Mezzo. First, doing so better serves the purpose of the preliminary inquiry – that is, “expeditious charge-screening”: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 48. Second, it would align the test for committal with the unreasonable verdict test, thereby avoiding an “odious sequence” where a person risks being convicted at trial on weak identification evidence, before coming to this court to learn that the verdict was one no reasonable jury could have permissibly rendered.
51For these reasons, Mr. Goodridge argues that we should not follow the decision I arrived at in R. v. Ali, 2015 ONCJ 718, when I first encountered this issue as a preliminary inquiry judge and held that Haydid not overrule Mezzo.
52With respect, I am not persuaded that the last sentence of the passage reproduced in para. 48 above has had this ground-breaking impact on the law. In my view, Hay did not overrule Mezzoand related authorities, and it is not inconsistent with them. As I explain below, this sentence should not be read literally and in isolation, but more narrowly, consistent with the factual issue that was before the court and the established authority, which Rothstein J. not only cited without adverse comment, but relied upon. When this is done, it is apparent Hay is a circumstantial evidence case that permits a limited weighing of eyewitness evidence in a manner fully consistent with Arcuri.
a. Hay did not directly overrule Mezzo
53I am not persuaded that Hayhas overruled Mezzo. Admittedly, there is impressive support for Mr. Goodridge’s contention that Hay has done so. The decision was interpreted as overruling Mezzo in a case comment by Professor Lisa Dufraimont, titled “R. v. Hay: Enhanced Safeguards against Wrongful Conviction in Identification Cases” (2014), 6 C.R. (7th) 246. This passage from Hay has also been quoted as the law without qualification, although not applied, in at least two appellate unreasonable verdict cases: R. v. Cabrera, 2019 ABCA 184, 442 D.L.R. (4th) 368, at para. 141, aff’d R. v. Shlah, 2019 SCC 56, [2019] 4 S.C.R. 136; R. v. Linklater, 2025 MBCA 104, at para. 17.8 And Hay has been applied in the manner suggested by Mr. Goodridge in some directed verdict and certiorari cases: see e.g., R. v. Yearley, 2022 ONSC 2160; R. v. Anderson, 2014 BCSC 1517. With respect, to the extent that these authorities reflect the view that Hay has overruled Mezzo, I cannot agree.
54For convenience, I repeat the single sentence in Haythat must carry the weight of changing the law: “where the Crown's case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict”.
55If this passage is read literally, without contextual limits, it would indeed require trial judges facing motions for directed verdict to weigh the reliability of direct evidence of identification and to direct juries to acquit the accused if, in the judge’s assessment, the proof of identification is manifestly unreliable. But to achieve this outcome, the Supreme Court of Canada in Haywould have had to:
(1) Overrule Mezzo, which holds precisely the contrary and flatly rejected this very proposition;
(2) Create a new exception for identification evidence cases to the longstanding rule that when considering directed verdict motions, judges are to assume the evidence to be true and not weigh its reliability; and,
(3) Depart from its practice of not deciding “issues of law that are not necessary to a resolution of an appeal”: R. v. McGregor, 2023 SCC 4, [2023] 1 S.C.R. 198, at para. 24, citing Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at para. 6.
56In my view, it is most unlikely that the Supreme Court of Canada intended to achieve these ground-breaking changes in the law when the issue was not before it, with a single sentence of obiter dictum, without an explicit statement it was doing so, and without explanation.
57To be sure, there are circumstances where the Supreme Court of Canada can be said to have changed the law by “implicitly repudiating a prior decision”, but these are nevertheless “clear situations”: Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 99. The court has recognized that overturning one of its precedents “is a step not to be lightly undertaken”, particularly “when the precedent represents the considered views of firm majorities”: Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 24. In Craig, at paras. 25-27,Rothstein J. himself said that to overrule its own authority, “the Court must be satisfied based on compelling reasons that the precedent was wrongly decided”, and where this is the case, proceed with caution by asking “whether it is preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error.” And in McGregor, at para. 23, the court commented that, “As a rule, which the Court should depart from only in rare and exceptional circumstances, we should not overrule a precedent without having been asked to do so by a party.”
58There is no indication that the court was asked in Hay to make these ground-breaking changes, which is not surprising given that Mr. Hay’s appeal was about the sufficiency of the jury directions and fresh evidence. It is also difficult to imagine that the court found compelling reasons for finding that the longstanding and frequently invoked precedents that I have described were wrong or required exception, without saying so and offering a careful explanation.
59What makes the change in the law theory even more difficult to accept is that, in Hay, Rothstein J. relied in support of his decision on the very authority he is said to have overturned or confined. He cited Mezzofor the proposition that “[t]he credibility and weight that should be given to eyewitness testimony is an issue committed to the ultimate trier of fact ― here the jury”: Hay, at para. 40. This proposition is inconsistent with interpreting Hay as changing the law. Notably, when he cited Mezzoas authority, Rothstein J. did so without any hint of disagreement. He cited Shephardand Arcuri as well, for the proposition that “a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror”: Hay, at para. 41. The paragraphs from Arcuri that he relied upon, paras. 21-25, include the principle, at para. 22, that direct evidence on an element of the offence (e.g. identity) mandates committal. Most tellingly, he cited Arcuri, at para. 21, as authority for the very proposition that is now being relied upon as having altered the principles that Arcuri endorsed. As a reminder, para. 21 of Arcuri simply restates the Shephardtest.
60In oral argument, Mr. Goodridge submitted that by citing para. 21 of Arcuri, Rothstein J. was simply saying that manifestly unreliable identification evidence is evidence that, by definition, cannot constitute “evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, at p. 1080. I do not agree. If that is what he meant, Rothstein J. would have had to have ignored the very next paragraph of Arcuri, where McLachlin C.J. explicitly prohibited any weighing of direct evidence: see para. 22.
61In my view, if Rothstein J. had meant to change the law in a single sentence, he would not have cited Arcurias the authority for this change. And he certainly would not have done so without first contending with Arcuri and Mezzo’s treatment of direct evidence. When the decision is read as a whole, I am not persuaded that Hayoverturned Mezzo.
b. Hay is consistent with Mezzo and Arcuri
62Having said this, I do not believe that this passage from Hay can simply be ignored as obiter dictum, or that it should be disregarded as having been made per incuriam (i.e., because the court failed to consider a binding authority): see R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57, Binnie J., for the court, said: “All obiter do not have, and are not intended to have, the same weight.” He explained that “the weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative”: Henry, at para. 57. He explained that beyond this, commentary, examples, or exposition intended to be helpful are “certainly not ‘binding’”: Henry, at para. 57. I recognize that in the relevant passage in Hay, Rothstein J. told judges what they “must” do. Applying the continuum of authority that Binnie J. describes in Henry, this strikes me as closer to an authoritative statement than an exposition that was merely intended to be helpful.
63On its face, my conclusion that Hay does not overturn Mezzo or alter the general principles of committal but must still be treated as instructive appears to support Mr. Goodridge’s contention that this court is faced with the binary choice of following Mezzoor following Hay. This is a false dichotomy. The place to begin is by determining whether what Rothstein J. said can be reconciled with existing authority. This can be achieved by reading the material passage as every passage must be read, that is, “in light of the facts the Court was dealing with” (Henry, at para. 52), and in the context of existing authority.
64I will begin with the facts the Hay court was dealing with. Of crucial importance, Hay was not a case about direct evidence of identification. At no point did Ms. Maillard say of Mr. Hay, “he is the shooter”. Based on Rothstein J.’s interpretation of the record, the identification evidence consisted of no more than Ms. Maillard’s opinion about the degree of similarity between the shooter and Mr. Hay, as he appeared in the lineup photograph. This was not direct evidence as McLachlin C.J. defined it in Arcuri, namely, “witness testimony as to ‘the precise fact which is the subject of the issue on trial’”: Arcuri, at para. 22, citing Sopinka, at §2.74. Moreover, Hay was not a case where the only remaining question relating to the material issue of identity was whether Ms. Maillard’s evidence was to be believed. The jury would still have had to decide whether the degree of similarity expressed between the shooter and Mr. Hay would support a reasonable inference that Mr. Hay must be the shooter. In my view, this was a circumstantial evidence case, and the passage must be understood in that light.
65Reading the passage in Hayin context, as relating to circumstantial evidence of identification, also makes sense of Rothstein J.’s citation of Arcuri as its authority. It avoids the conflict with Mezzo and the settled principles prohibiting the weighing of reliability. Read this way, the passage in Hayalso expresses a familiar outcome – if the judge finds that the Crown's case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror after the limited weighing that Arcuri permits for circumstantial evidence, the trial judge must direct an acquittal upon a motion for directed verdict.
66This understanding of the decision is also consistent with Rothstein J.’s earlier statement in para. 41 that “the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt” (emphasis added). Evidence dependent on an inference is necessarily circumstantial. It is apparent that Rothstein J. was situating his direction to judges hearing directed verdict applications in the context of the well-developed framework for assessing the sufficiency of circumstantial evidence laid down in Arcuri. Otherwise, there would be no need to speak of inferences.
67In sum, when read in light of the facts the court was dealing with and in the context of existing authority, Hay is consistent with Mezzo and Arcuri and is not a rejection of the central principles those decisions embrace.
c. The Supreme Court decision of M.M. is inconsistent with Hay having changed the law
68The conclusion that Hay has not changed the law receives significant reinforcement from M.M., an extradition case. In M.M., the court was facing the submission that extradition judges should consider evidence about possible defences and other exculpatory circumstances in deciding whether to commit a person for extradition: see paras. 9-10. Cromwell J., for the majority, concluded that this proposition was not supported by the test used to decide whether to commit an accused for trial, which is incorporated into extradition proceedings by s. 29(1)(a) of the Extradition Act, subject to the statutory modifications discussed above: M.M., at paras. 37-72. His analysis therefore required him to take a close look at the law that applies to preliminary inquiries and the Shephardtest. In that context, he said, at para. 47:
Nor is the preliminary inquiry justice to assess the quality, credibility or reliability of the evidence, with the exception of the limited weighing to assess whether the inferences which the Crown seeks to be drawn from circumstantial evidence are reasonable as contemplated in Arcuri: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15. So, for example, it is a jurisdictional error for the justice to refuse to commit because, in the judge’s view, the identification evidence did not establish identification beyond a reasonable doubt: Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at pp. 378-79. [Emphasis added.]
69It is notable that Cromwell J. described the prohibition on considering the “quality, credibility or reliability of the evidence” as subject to only one exception, the Arcuri weighing, and he made no mention of the “exception” in Hay that Mr. Goodridge claims exists. It is also notable that he used the weighing of identification evidence as an example of jurisdictional error, again without mentioning Hay. One paragraph earlier, Cromwell J. reaffirmed the rule that “where the Crown has adduced direct evidence on all the elements of the offence, the justice must commit” without qualifying this statementwith the purported exception created by Hay: M.M., at para. 46. Had the court believed that Hay changed the committal test relating to identification evidence only two years before, it is almost certain Hay would have been mentioned.
70I recognize that Attorney General of Canada (Republic of Albania) c. Brahimi, 2023 QCCS 4392 (“Brahimi QCCS”), aff’d 2025 QCCA 1586 (“Brahimi QCCA”), appears to support a standalone “Hay exception” for prima facie case assessments, post-M.M. In Brahimi, the extradition judge seems to have broken his analysis into two phases. First, he determined whether there was a prima facie case to commit the person sought, which he analogized to the test for committal in a preliminary inquiry: Brahimi QCCS, at paras. 9, 67. Then, he examined whether he should use his “discretionary power … to prevent extradition based on evidence so manifestly unreliable that it would be unsafe or dangerous to act on it”: Brahimi QCCS, at para. 68; see also paras. 15-20. Relying on Hay, at para. 41, he determined that the prima facie case standard was not met because “the identification evidence in support of the extradition request, even if accepted, could not reasonably support a finding of guilt beyond a reasonable doubt”: Brahimi QCCS, at para. 67; see also paras. 10-14. In the alternative, he found this evidence to be “manifestly unreliable”, thereby engaging his discretion to refuse committal: Brahimi QCCS, at para. 68. The Court of Appeal appears to have approved of this bifurcated reasoning in parts of its reasons: see Brahmi QCCA, at paras. 81-83, 96. However, in other places it speaks of the extradition judge’s power to determine if evidence is manifestly unreliable as part of the prima facie case assessment in extradition cases, not as a separate analytical step: see Brahimi QCCA, at paras. 80-81, 86-93, 97.
71With respect, I do not think this case is particularly helpful. To the extent that the courts were relying on Hay to support the proposition that extradition judges have unique powers to engage in a limited weighing of the evidence as part of their prima facie case assessments, this is uncontroversial: see United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at paras. 21, 40, 46-47, 54 and 65. However, to the extent Brahimi suggests that all prima facie case judges are empowered to consider the threshold reliability of identification evidence, this is not supported by M.M., where Cromwell J. recognized the single exception discussed above. Moreover, in the extradition context, the prima facie case assessment incorporates a limited assessment of reliability as part of the test for committal: see United States v. Angelov, 2015 ONCA 659, at para. 14, citing United States of America v. Thomlison, 2007 ONCA 42, 84 O.R. (3d) 161, at para. 47, leave to appeal refused, [2007] S.C.C.A. No. 179; M.M., at paras. 65-66. It is not helpful to speak of this limited weighing as a separate analytical step. Thus, recognizing a separate “Hay exception” in the extradition context is neither necessary nor desirable.
72In my view, M.M. is inconsistent with the submission that Hay has changed the law.
d. No jurisdictional error
73For these reasons, I am not persuaded that Hayhas changed the law. It follows that I am not persuaded that the preliminary inquiry judge made a jurisdictional error by failing to consider it. The preliminary inquiry judge had only direct evidence of identity before him. He was bound to commit Mr. Goodridge because there was direct evidence on every element of the offence charged, notwithstanding the manifest unreliability of the in-dock identification. Hay was inapplicable – no weighing was permissible, let alone required. I would dismiss the appeal on this basis alone.
4. If Hay changed the law, it does not apply to preliminary inquiries
74If I am mistaken and Hay has overturned Mezzo and created an exception to the prohibition against weighing the reliability of identification evidence, I would find that this decision does not apply to preliminary inquiries. That is, it only applies to directed verdict motions.
75First, the fact that the test for committal is generally the same in preliminary inquiries as the test for a directed verdict is not a compelling reason to incorporate a “Hay exception” into s. 548(1) inquiries. I note that after the decision in Ferras, which now grants extradition judges the unique authority to discharge where evidence is so defective or so unreliable that it would be dangerous or unsafe to act upon,9 the Supreme Court of Canada continues to describe Shephard as the committal test in extradition proceedings: see M.M., at para. 45. The lesson is that despite the commonality of the base test, the law can develop unique refinements to meet the needs of the forum in question: see Ferras, at paras. 19-26; 38-50. The fact that the Shephardtest applies to both directed verdict motions and at preliminary inquiries is not a basis for reflexive duplication.
76Second, I note that the passage from Hay appears on its face to be confined to directed verdict applications. Indeed, this is the only kind of prima facie case assessment expressly mentioned in the passage. The only other context in which the Supreme Court of Canada has permitted prima facie case judges to consider whether evidence is “manifestly unreliable” is the extradition context: Ferras, at para. 54. In doing so, it made plain that this represents a clear break with the role of a preliminary inquiry judge: see M.M.at paras. 49-54, 57-60. If the passage in Haychanged the law, it should be read in light of the fact that where the Supreme Court has previously permitted prima facie case judges to conduct reliability assessments, it has taken great pains to confine these changes to the context in which they were developed. It is true that Hay, unlike Ferras, does not contain an extended discussion of why it is departing from the general rule in preliminary inquiries. However, it also makes no mention of preliminary inquiries and instead focuses solely on directed verdicts. It should therefore not be read as applying broadly to preliminary inquiries, given that the Supreme Court has adopted a narrow, case-specific approach to modifying the base test in prima facie case determinations.
77Third, there are good reasons why Hay should not be applied to preliminary inquiries. Directed verdict motions are brought after the entire case for the Crown has been presented. In contrast, preliminary inquiries are meant to be expeditious proceedings in which the task for the Crown is to present sufficient evidence, rather than all its evidence: Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786, at pp. 809‑10. A judge conducting a preliminary inquiry does not know what the case will look like at trial and is not in an optimal position, absent significant structural changes as to how preliminary inquiries are conducted, to terminate cases based on considerations of weight.
78Relatedly, adapting a rule that empowers the committal judge to weigh reliability would result in preliminary inquiries turning into mini-trials where identification is in issue, prolonging and complicating them. As the Supreme Court has repeatedly affirmed, “[T]he preliminary inquiry ‘is not a trial and should not be allowed to become a trial’”: Hynes, at para. 38, citing Patterson v. R., 1970 CanLII 180 (SCC), [1970] S.C.R. 409, at p. 412. It would also be inconsistent with the decided legislative trend of reducing the number and technicality of preliminary inquiries: see R. v. Archambault, 2024 SCC 35, 497 D.L.R. (4th) 185, at paras. 14-21, per Côté and Rowe JJ.
79Fourth, I do not accept appellant’s counsel’s submission that Hay should be extended to preliminary inquiries because doing so would bring this area of the law into line with the appellate power to set aside unreasonable verdicts. I accept that ending an unreasonable case early would save the accused the enduring prejudice of an ongoing criminal charge pending exoneration after appeal, but a preliminary inquiry is not a forum where the reasonableness of a conviction can be finally determined. The trial has not even been held yet. Granting this authority to preliminary inquiry judges would result in premature assessments of reasonableness. Indeed, in M.M., Cromwell J. cautioned against drawing an analogue between the role of a prima facie case judge and that of an appellate court determining whether a verdict after trial is unreasonable: at para. 69. An appellate court reviewing the reasonableness of a verdict is acting retrospectively, with the benefit of hindsight and a full trial record, while a prima facie case judge is confined to a prospective assessment of limited evidence: M.M., at para. 68.
80Finally, I note that granting preliminary inquiry judges the authority to discharge based on considerations of weight would encroach on the “constitutionally imperative” fact-finding role of juries for offences where an accused may elect to be tried by a Superior Court judge sitting with a jury: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 50; Canadian Charter of Rights and Freedoms, s. 11(f). This, in turn, would alter the constitutional role of provincial courts.
81For these reasons, if Hay created an exception to the law of committal for identification evidence, I would find that it does not apply to preliminary inquiries and is therefore immaterial to Mr. Goodridge’s committal. Therefore, it was not a jurisdictional error for the preliminary inquiry judge not to consider it, and I would dismiss the appeal on this basis as well.
C. Was the in-Dock Identification “No Evidence” Requiring a Discharge?
82This court said in Tebo, at para. 19, that where there are additional weaknesses, in-dock identifications may be entitled to “virtually no weight”. On that metric, the in-dock identification of Mr. Goodridge is entitled to virtually no weight. During oral submissions, appellant’s counsel submitted that there is not a long step between “virtually no weight” and “no evidence”. Although we were not asked directly to do so, the logical implication of treating weak in-dock identification as “no evidence” would be to require a discharge in a case such as this. I am therefore addressing that issue.
83In my view, the short distance between “virtually no weight” and “no evidence” does not, on the current state of the law, justify granting discharges at committal hearings when faced with problematic in-dock identifications. The only available path to recognizing that evidence has “virtually no weight” is to assess its weight, which is the very enterprise that the authority prohibits committal judges outside of extradition proceedings from engaging in. In my view, although I know it to have been done,10 it is not appropriate for preliminary inquiry judges to deem problematic admissible evidence, such as problematic in-dock identifications, to be “no evidence”, and to discharge on this basis.
84I would not order Mr. Goodridge’s discharge on this basis.
CONCLUSION
85I would dismiss the appeal.
Released: July 23, 2026 “D.M.P.”
“David M. Paciocco J.A.”
“I agree. Sossin J.A.”
“I agree. L. Madsen J.A.”
Footnotes
- Citing Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93.
- I would caution, however, that this articulation of the review standard may be problematic where committal turns on circumstantial evidence and where the committal issue is whether the evidence, if believed, could reasonably support an inference of guilt: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23, and the discussion below. For this reason, I prefer the articulation of the standard as articulated by Benotto J.A. in R. v. Wilson, 2016 ONCA 235, at para. 28: “The reviewing judge must only decide whether there was an evidentiary basis on which the court below could form the opinion that the evidence was sufficient to justify a committal for trial.”
- These phrases were used by Cromwell J. in describing committal in the extradition context, but they apply equally to each of the contexts in which committal is at issue.
- Section 29(1)(a) of the Extradition Act incorporates the committal test from s. 548 by directing extradition judges to determine whether there would be sufficient evidence to “justify… committal for trial, if the crime had been committed in Canada”. Section 24(2) gives the extradition judge the same powers as a preliminary inquiry judge, subject to “any modifications as the circumstances require.”
- See Extradition Act, ss. 24(2), 25. See also United States of America. v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at paras. 39-49, 54. This former change permits extradition judges to engage in a limited weighing to determine whether committal should be denied because the evidence is so defective or appears so unreliable that it would be dangerous or unsafe to commit: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 40.
- The term “direct evidence” can also be used to describe evidence that directly asserts relevant facts other than “the precise fact which is the subject of the issue on trial”. A witness testifying that the suspect car is registered to the accused is direct evidence of the registration of the car, but the fact proved – the registration of the car to the accused – is only circumstantial evidence of the identity of the accused as the perpetrator. It is evident that McLachlin C.J. defined the term “direct evidence” more narrowly because her focus was on the character of evidence on the elements of the charged offence.
- His appeal succeeded on other grounds.
- See also R. v. Morin, 2024 MBCA 85, at para. 25; R. v. Harrison, 2023 ABCA 151, 427 C.C.C. (3d) 46, at para. 39 and FN 62.
- See Ferras, at para. 54.
- See e.g., R. v. Herrera, 2008 CanLII 38962 (Ont. S.C.).