1977. UBC Law School. Evidence class. Topic: frailties of eyewitness identification. Our eager young professor had devised a didactic skit for us, in which an intruder burst into the classroom, accused him of theft, liberated a pen from his breast pocket, then exited indignantly. The idea of course was to ask us questions afterwards about the physical characteristics and actions of the intruder. The professor hoped that inconsistencies in response would demonstrate the unreliability of human observation.

The experiment was imperfectly successful, mostly due to miscasting: the “angry” intruder was an undisguised, well-known and popular young member of the law faculty. None of us had any difficulty identifying or describing her. Also, ire was out of character for her. In fact she’d broken out in a warm smile mid-skit. This detracted significantly from the air of reality (which was low to start with).

I believe, and hope, that this was the pair’s last venture into thespianism. But they did both move on to distinguished legal careers, co-authoring a textbook for civil litigators along the way. The professor, Jim Taylor, earned a QC and other honours; the supporting actor, Bev McLaughlin, became Chief Justice of Canada.

But back to the skit: despite its limitations, it was educational and meritorious. The list of wrongful convictions based on erroneous eyewitness identification in both American and Canadian law is an uncherished part of the continent’s legal history. Doherty JA said it best in the 1990 Ontario case of R v Quercia; “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.” See also R v Hay 2013 SCC 61.

In the 2001 Inquiry into the wrongful conviction of Thomas Sophonow on a charge of first degree murder, former Supreme Court of Canada Justice Peter Cory was presented with expert evidence that out of 74 confirmed wrongful convictions, “it was discovered that in 81% of the cases, mistaken identification evidence significantly contributed to the wrongful conviction.” This appeared to be based on the American experience, but it is clear from Mr. Cory’s conclusions that Canada does not lag far behind, if at all, in this lamentable statistic.

A partial summary of Mr. Cory’s Inquiry recommendations for trial instructions regarding eyewitness identification was as follows:

• There must be strong and clear directions given by the trial judge to the jury emphasizing the frailties of eyewitness identification. The jury should as well be instructed that the apparent confidence of a witness as to his or her identification is not a criterion of the accuracy of the identification.
• The trial judge should stress that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. It should be explained that the vast majority of wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification.
• Judges should consider favourably and readily admit properly qualified expert evidence pertaining to eyewitness identification. This is not junk science. Careful studies have been made with regard to memory and its effect upon eyewitness identification. Jurors will benefit from the learning of experts in this field.
• The judge should advise the jury that mistaken eyewitness identification has been a significant factor in wrongful convictions in the United States and Canada, with a possible reference to the Sophonow case.

Regrettably (with a few courageous exceptions), the recommendation regarding the admission of expert testimony is overdue for acceptance in Canadian law – and perhaps ripe for a second look by members of our highest court.