ARSENEAULT: TRIAL FAIRNESS AND THE RISKS OF ERRONEOUS EYEWITNESS IDENTIFICATION EVIDENCE
In an ideal world, the jury in a criminal trial has a plethora of evidence on which to decide whether to convict or acquit the accused. However, in some cases the only evidence presented to a jury is the eyewitness identification of the accused by a single witness. A case based entirely on the eyewitness testimony of a single witness raises inherent issues with trial fairness and proving guilt beyond a reasonable doubt. The recent decision of the New Brunswick Court of Appeal in Arseneault v R, 2016 NBCA 47 focused on the role of appellate courts in reviewing decisions on the reliability of eyewitness identification evidence by judge alone to ensure trial fairness at the appellate level.
At trial, the appellant was convicted of aggravated assault and forcible confinement based solely on the eyewitness identification evidence of the victim.
The victim was lured into a car by a drug dealer known to the victim and another person unknown to the victim. While driving, the victim allegedly stole drugs from the drug dealer. The victim was then held against his will in the car under threat of bodily harm, beaten, and stabbed several times. Eventually, the victim was allowed to leave. In the weeks following the attack the victim was shown three photo lineups by police. In the first photo lineup, the victim identified a suspect as a potential assailant with 50% certainty. In the second photo lineup, the victim did not identify any suspects. In the third photo lineup, the victim immediately identified the picture of a suspect as the appellant with complete certainty.
The appellant was convicted based solely on the eyewitness identification of the victim by judge alone. The New Brunswick Court of Appeal reviewed the reasonableness of the trial judge’s determination of the appellant’s guilt beyond a reasonable doubt based on the reliability of the eyewitness identification evidence available. The appeal was dismissed.
Addition to Canadian Jurisprudence
During his analysis, Richard J., writing for the court referenced an alarming statistic from The Inquiry Regarding Thomas Sophonow, (2001):
"Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions. A study in the United States of DNA exonerations shows that mistaken eyewitness identification was a factor in over 80 per cent of the cases [pg. 27]."
An awareness of the risks associated with convictions based on eyewitness identification evidence is at the forefront of Justice Richard’s assessment of the reasonableness of the trial judge’s verdict in Mr. Arseneault’s conviction.
Justice Richard examined whether the trial judge’s conviction of the appellant was reasonable given the eyewitness evidence and the trial judge’s treatment of said evidence. It is on this point that the New Brunswick Court of Appeal adds to Canadian jurisprudence on the treatment of eyewitness identification evidence.
Much of the current Canadian jurisprudence on the treatment of eyewitness identification evidence has focused on the sufficiency of judicial instruction to juries regarding the inherent frailties involved in eyewitness identifications.
However, the decision of Richard J. in Arseneault v R focused on a review of the sufficiency of the trial judge’s consideration of the reliability of the victim’s eyewitness identification evidence. The criteria for the review of the reliability of eyewitness identification evidence were introduced in R v Tat,  OJ No 3579 (CA) (QL) as: (1) the person identified is a stranger to the witness; (2) the circumstances of the identification are not conducive to an accurate identification; (3) pre-trial identification processes are flawed; and (4) where there is no other evidence tending to confirm or support the identification evidence [at paras 99-100].
Using the criteria listed above, Justice Richard found that the trial judge balanced the issues inherent to eyewitness identification evidence against circumstances of the crime that indicated the victim’s testimony was reliable. In doing so, Justice Richard followed a principled flexible approach that deferred to the fact finding of the trial judge. Justice Richard did not base his review strictly on the existence of all of the criteria listed in R v Tat. Instead, Justice Richard examined the findings of the trial judge and determined that, in the circumstances specific to the victim, the evidence provided was reliable and the trial judge’s conviction of the appellant was reasonable.
On its face, it appears that this logical approach to examining the review of eyewitness identification evidence by judge alone ensures the overriding principle of trial fairness is respected at the appellate level. However, while the decision of Richard J. shows that the trial judge considered all of the potential issues with the witness identification evidence provided in this specific case, the decision does little to provide certainty to the treatment of eyewitness evidence for the accused at the trial level.
The issue with the approach taken falls not to the reasoning of Richard J., but to the roles assigned to different levels of the judiciary. The role of the appellate court in Arseneault v R was to review the conviction of the appellant based on the reasonableness of the trial judge’s decision. The role of the appellate court is not to challenge factual findings at the trial level. Instead, the appellate court must determine whether the treatment of those factual findings is reasonable. The approach to the review of the reliability of eyewitness identification evidence taken by Justice Richard cannot prevent erroneous factual findings at the trial level, it can only prevent unreasonable convictions based on eyewitness identification evidence from being upheld.
The admissibility of eyewitness identification evidence where no other evidence is available must balance the pursuit of justice for victims of crimes and the right to trial fairness for the accused. While Justice Richard’s decision helps to ensure trial fairness is respected at the appellate level, it will likely not prevent the alarming number of wrongful convictions based on erroneous eyewitness identification evidence from rising at the trial level.