R v Webbe-Wong: A Reminder of the Frailties of Cross-Racial Identification Evidence

J. Papoff

On its own merits, eyewitness evidence is problematic and poses challenges to the truth-finding function of Canada’s legal system.  Every individual, and thus every eyewitness, is affected by biases and prejudices that can make it more difficult to assess who or what was seen at the time a crime takes place.  This paper will explain that reliability issues with eyewitness testimony are aggravated by cross-racial bias, a phenomenon which causes eyewitness identifications to be less reliable when the witness is a different race than the identified individual.  In doing so, it will examine the 2022 case of R v Webbe-Wong (2022 ONCJ 423) to underscore that even credible, convincing, and well-intentioned eyewitnesses can be mistaken as a result of cross-racial bias.  This paper will conclude by advocating for a strategy which couples revised mandatory jury instructions with stronger reliance on expert testimony.  This approach will hopefully raise awareness of cross-racial bias, reduce wrongful convictions, and improve the Canadian justice system’s truth-finding function.

Keywords: eyewitness evidence; cross-racial bias; cross-race effect; cross-racial identification; wrongful convictions; eyewitness testimony; racial prejudice; biases; prejudice; expert evidence; expert testimony; jury instructions; mandatory instructions.

General Issues with Eyewitness Identification Evidence

Even in the best of circumstances, eyewitness identification evidence is problematic.  Its dangers include, though are not limited to, vulnerability to “psychological and physiological factors”[1] and the potential for “credible, consistent and convinced [witnesses] . . . [to] still be mistaken”.[2]  It is my position that these problems are exacerbated in cases involving cross-racial eyewitness identification. Cross-racial identification is “the perception that members of one race tend to think that members of another race ‘all look alike’”.[3]  Even without environmental factors such as “distance and poor lighting” and physical factors like “vision, hearing, attention and intoxication”[4] muddying the accuracy of an eyewitness’s account, the “cross-race effect”[5], also known as “cross-racial bias”[6] continues to cause cross-racial identifications to be “less accurate than same race identifications”[7]. This bias ultimately obscures the truth-finding function of the legal system.

 

R v Webbe-Wong

The 2022 decision of the Ontario Court of Justice in R v Webbe-Wong[8] involved a racialized man who was charged with possession of a stolen motor vehicle.  The case rested entirely on whether the accused, Mr. Webbe-Wong, was in fact the man identified at the scene by Detective Constable (“DC”) Kevin Sarjoo.[9]  For the Court, Justice R. Wright applied caselaw principles to assess the reliability of DC Sarjoo’s eyewitness identification, spending time to discuss the reliability shortcomings of cross-racial identification.[10]  Ultimately, Mr. Webbe-Wong’s charges were dismissed because DC Sarjoo’s eyewitness identification was insufficiently reliable.[11]  The Court noted that an “honestly held belief cannot be conflated with reliability”.[12] 

Issues with Cross-Racial Eyewitness Identification Evidence

In Webbe-Wong, the eyewitness testimony may have been compelling, in part due to DC Sarjoo’s status as a veteran police officer.  As the Ontario Court of Justice states, “[i]dentification evidence often appears deceptively reliable because it comes from credible and convincing witnesses.”[13]  Because of cross-racial bias, the risk of misidentification is exacerbated in cases where the “witness and the defendant being identified are of different racial backgrounds”.[14]  When credible and convincing witnesses are asked about their recollection of an event, cross-racial bias obscures their judgment, even if the witnesses are credible, convincing, and well-intentioned.  The unfortunate result of this sequence may be a wrongful conviction.

In cases like Webbe-Wong, where the racial backgrounds of an eyewitness and defendant differ, courts should be careful in ensuring that eyewitness identifications are not simply “bald assertion[s]”[15].  Such identifications should not be “highly prejudicial” and ought to have “some probative value” before being put to the jury.[16] If identifications of low quality are admitted too readily into the evidentiary record, cross-racial identifications may have the effect of enforcing “[r]acial prejudice and its effects”[17], increasing the likelihood of a misidentification.

The fact that cross-racial bias is an effect that jurors would not likely “know from common experience”[18] underscores the limitations of cross-racial identification evidence on the judgment of jurors.  As established in Miaponoose, “[e]yewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess.”[19]  Because such opinions are, in part, “based on a host of psychological and physiological factors . . . not well understood by jurists”[20], cross-racial bias, as well as its capacity to impair judgment, may not be detected by the trier of fact during their assessment of the evidence.

What Can Be Done to Ameliorate the Situation

Jurors are regularly instructed about issues associated with cross-racial identification evidence[21] with the goal of mitigating the effects of cross-racial bias, but as there is currently “no magic formula” with respect to the content of such instructions[22], more can be done to ensure that racialized individuals are treated fairly in Canada’s legal system.  It should not be assumed that “instructions from the judge . . . will eliminate biases that may be deeply ingrained in the subconscious psyches of jurors”[23], however, introducing a mandatory script of instructions that trial judges can read to triers of fact may improve the ability of jurors to recognize their own systemic biases and prejudices.  Instructions that “explain ‘the subtle cognitive phenomenon of implicit bias [. . .] in a manner that promotes self-awareness’ and [provide] jurors with internal motivation to confront racial prejudice”[24] may be a step in the right direction.

Another solution, though potentially costly[25], is the use of expert testimony to educate triers of fact on the effects of cross-racial bias in cases involving cross-racial identification.  Expert evidence in this field may assist as a timely and informative tool during the trial; courts, however, have been reluctant to rely on it to address issues associated with cross-racial bias, as well as eyewitness identification generally.  In Webbe-Wong, the Court noted that trial judges self-instruct triers of fact on the issue of cross-racial examination without the use of expert evidence “because judicial notice can be taken of this phenomenon”[26].  Similarly, the Court in McIntosh believed there to be a “very real danger that [expert testimony] evidence would ‘distort the fact-finding process’”.[27]

With respect, I disagree with the above positions.  The extent to which cross-racial bias can impair the judgment of eyewitnesses and triers of fact seems to be underestimated, and, as Innocence Canada notes, judges may “overestimate their influence with juries when they suppose that their mere pronouncement about the risks built into identification evidence will neutralize the appeal of dramatic eyewitness testimony”.[28]  Instead, I estimate that expert testimony should be more openly relied upon as an evidentiary asset in cases where cross-racial identification is in play.  In conjunction with a revised set of mandatory jury instructions, it is my position that expert testimony can be used as a tool to effectively combat cross-racial bias, decrease the number of wrongful convictions, and ultimately support the truth-finding function of the Canadian judicial system.

[1] R v Miaponoose, 30 O.R. (3d) 419, [1996] O.J. No. 3216 [Miaponoose].

[2] R v Gilbert, 2022 BCSC 1352 [Gilbert].

[3] R v McIntosh, 35 O.R. (3d) 97, [1997] O.J. No. 3172 [McIntosh].

[4] “Chapter 3 - Eyewitness Identification and Testimony” (25 April 2019), online: Public Prosecution Service of Canada <ppsc-sppc.gc.ca/eng/pub/is-ip/ch3.html> [perma.cc/K8ZK-WK84].

[5] Lisa Pascal, “Same-Race and Other-Race Eyewitness Identification Accuracy - The Bracket Lineup is as Good as Old” (8 April 2018), online: University of Windsor <scholar.uwindsor.ca/cgi/viewcontent.cgi?article=8470&context=etd> [perma.cc/L4HZ-37XP].

[6] “Submissions of Innocence Canada on Criminal Justice Reform” (9 June 2017) at para 127, online (pdf): Innocence Canada <innocencecanada.com/assets/Uploads/PDFs/Submissions-on-Criminal-Justice-Reform.pdf>[perma.cc/77WK-3L2Z], citing David Schermbrucker, “Eyewitness Evidence: The Role of Experts in the Criminal Courts.” (Paper delivered at the Canadian Bar Association (Nova Scotia) Conference on Key Developments in the Law of Evidence Halifax, 23 April 2004), posted in Alan Gold’s Collection of Criminal Law Articles 2004.

[7] Public Prosecution Service of Canada, supra note 4.

[8] R v Webbe-Wong, 2022 ONCJ 423 [Webbe-Wong].

[9] Ibid at para 5.

[10] Ibid at para 29.

[11] Ibid at paras 36-7.

[12] Ibid at para 34.

[13] Ibid at para 28.

[14] “Cross-racial identification and jury instruction” (20 May 2008), online: Innocence Project <innocenceproject.org/cross-racial-identification-and-jury-instruction> [perma.cc/6T5L-TKJ9].

[15] R v Adams, 2016 ONSC 5042 at para 48 [Adams].

[16] Ibid.

[17] R v Williams, [1998] 1 SCR 1128 at para 22, 159 DLR (4th) 493 [Williams].

[18] Innocence Canada, supra note 6.

[19] Miaponoose, supra note 1 at para 11.

[20] Ibid.

[21] R v Lam, 2014 ONSC 3538 at para 191 [Lam].

[22] R v Barton, 2019 SCC 33 at para 201 [Barton].

[23] Williams, supra note 17.

[24] Scott Franks, “Barton jury instructions may raise racial prejudice” (5 June 2019), online: The Canadian Bar Association <nationalmagazine.ca/en-ca/articles/law/in-depth/2019/barton-jury-instructions-may-raise-racial-prejudic> [perma.cc/HA9Q-6SRW], citing Jennifer Elek and Paula Hannaford Agor, “Can Explicit Instructions Reduce Expressions of Implicit Bias? New Questions Following a Test of a Specialized Jury Instruction” (28 April 2014), online (pdf): <papers.ssrn.com/sol3/papers.cfm?abstract_id=2430438> [perma.cc/ZZ6W-ACG4].

[25] Ashley Murty, “Members of The Jury Panel, Let Me Instruct You: Don't Be a Racist” (1 December 2021), online (pdf): <nsbs.org/wp-content/uploads/2022/06/Ashley-Murty-Race-The-Law-Essay.pdf> [perma.cc/BVA4-DBV2].

[26] Webbe-Wong, supra note 8 at para 29, citing McIntosh, supra note 3 at para 21.

[27] McIntosh, supra note 3 at para 22.

[28] Supra note 6 at para 152.