WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2015-10-21

Court File No.: Lindsay 15-568

Between:

Her Majesty the Queen

— and —

Bradley Cox

Before: Justice S. W. Konyer

Heard on: October 21, 2015

Reasons for Judgment released on: October 21, 2015

Counsel:

• Ms. J. Broderick, counsel for the Crown
• Ms. M. Wyszomierska, counsel for the accused Bradley Cox

KONYER J.:

RULING ON ADMISSIBILITY OF IN-DOCK IDENTIFICATION

[1] I am making this evidentiary ruling as the Judge hearing a preliminary inquiry into charges of attempt murder and weapons offences against the accused, Bradley Cox. The only witness to testify thus far at the preliminary inquiry is the alleged victim of the shooting, Brian Eley. One of the issues identified by the defence in the statement of issues that was filed prior to the commencement of this inquiry is identification.

[2] Mr. Eley has testified about the circumstances that led to him being shot by a male party who was not known to him on May 28, 2015. Days after the shooting, while in hospital recovering from his wounds, Mr. Eley was shown a sequential lineup of 12 photographs. The fourth photo in the lineup was Mr. Cox's photograph. In his evidence before me, Mr. Eley testified that upon seeing one of the photos, his heart began to race and that he became scared. He said that although the photo appeared old and the person in the photo did not have a neck tattoo like he had seen on the shooter, that he was "absolutely" certain that the person in the photo was the person who shot him.

[3] Counsel for Mr. Cox objected to the Crown's subsequent attempt to ask Mr. Eley if he was able to identify his shooter in the courtroom. Mr. Cox is in custody and is seated in the prisoners dock.

[4] On consent, I have been asked to consider additional facts in making this ruling, whether the Crown ought to be permitted to ask Mr. Eley if he can make a courtroom identification of the person who shot him. The parties agree that when viewing the photo lineup, Mr. Eley was less certain about his identification of the fourth photograph than he is today in court, and also that he made comments in respect of two of the other photographs which suggest that other individuals depicted in the lineup bore similarities to the shooter. It is also agreed that Mr. Eley was told by the investigating officer approximately one week ago that the police had "got the right guy".

[5] The defence argues that in all of the circumstances, the probative value of an in-dock identification by Mr. Eley is outweighed by its prejudicial effect, and that the Crown ought not be permitted to ask Mr. Eley whether he can make such an identification. The Crown argues that Mr. Eley made an identification of Mr. Cox's photograph, and that a courtroom identification is simply a continuation of that earlier identification. In the Crown's submission, the concern expressed by defence goes to weight rather than admissibility.

[6] It seems clear that an in-dock identification by Mr. Eley, assuming he were to make one, in the circumstances of this case would be virtually worthless as evidence linking Mr. Cox to the charges before me. I agree with the comments of Hill J in R. v. MacDonald, 2014 ONSC 1254, at paragraph 62, that "[a]s a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, are generally almost valueless in terms of reliable positive identification. Not only has time passed since the alleged crime, […] but also the physical set-up of the courtroom recognizably presents the accused as the individual on trial and therefore as the suspect toward whom the finger of accusation has been pointed".

[7] Furthermore, there is a body of case law from the Ontario Court of Appeal holding that trial judges ought to exclude in-dock identification from juries in appropriate circumstances: see R. v. Tebo, at para 20 and R. v. Holmes, at para 40.

[8] In R. v. Johnson, [2003] OJ 3580 the Superior Court Judge presiding at trial followed these cases. There, the complainant was unable to identify the accused in a photo lineup 3 weeks after the alleged shooting, but made a positive in-dock identification at the preliminary inquiry some 18 months after the shooting. The trial Judge held that the probative value of an in-dock identification before the jury was outweighed by its potential for prejudice.

[9] The limited probative value an in-dock identification was explained by the Court of Appeal in R. v. Tebo, supra, at para 17, with reference to an earlier Supreme Court decision:

The Supreme Court of Canada discussed the issue of in-dock identification of an accused person in the recent case of R. v. Hibbert, 2002 SCC 39, 163 C.C.C. (3d) 129. The court re-emphasized that in-dock identification has an "almost total absence of value as reliable positive identification." The only purpose in allowing the evidence to be led is to give the victims or other relevant witnesses an opportunity to say whether or not in their opinion, the accused is the same person they saw at the offence, in order to dispel any adverse inference the jury might draw if the question were not asked, and because there is probative value in the inability of a victim or witness to identify an accused person.

[10] Were I the trial Judge, based on the evidence that I have heard thus far, I would consider an in-dock identification by Mr. Eley to be of virtually no value. He did not know Mr. Cox prior to the shooting. He was less than certain in his identification of Mr. Cox in the photo lineup. He was told by the police officer in charge of the investigation effectively that he would be seeing the shooter in the prisoner's dock when he testified. An in-dock identification in those circumstances would, in my view, be of virtually no value and would undoubtedly carry the potential for great prejudicial effect if heard by a jury, despite the availability of limiting instructions. The probative value of this evidence, assuming an identification were made, is likely outweighed by the potential for prejudice in the eyes of a jury.

[11] As can be seen from the earlier reference to Tebo and Hibbert, however, an in-dock identification is not without some evidentiary value. While an in-dock identification may be "almost without value" I cannot say that it is of no value. As a preliminary inquiry Judge, in order to determine whether there is sufficient evidence to order the accused to stand trial, I must assess the Crown's case at its highest. This may include hearing evidence which a trial Judge subsequently excludes. The potential prejudice identified with respect to in-dock identification is that it will be given undue emphasis by a jury, particularly where a sympathetic complainant points out the accused and makes an identification with great certainty. I understand the need for caution in assessing this evidence. I expect that any identification made by Mr. Eley in the circumstances of this case will likely be of virtually no value, but I cannot conclude that such evidence should be excluded on a probative value versus prejudicial effect analysis.

[12] I am therefore permitting Crown counsel to ask Mr. Eley whether he is able to identify the person who shot him in the courtroom.

Released: October 21, 2015

Signed: "Justice S. W. Konyer"