Mezzo v. The Queen

Mezzo v. The Queen
Collection
Supreme Court Judgments
Date
1986-06-26
Report
[1986] 1 SCR 802
Case number
17958
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 17958
Decision Content
Mezzo v. The Queen, [1986] 1 S.C.R. 802
Michael Douglas Joseph Mezzo Appellant;
and
Her Majesty The Queen Respondent.
File No.: 17958.
1985: February 20; 1986: June 26.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for manitoba
Criminal law ‑‑ Directed verdict ‑‑ Charge of rape ‑‑ Sufficiency of identification evidence ‑‑ Complain­ant’s observations of assailant made in difficult conditions ‑‑ Improper police identification procedures ‑‑ Trial judge finding identification evidence unreliable to convict ‑‑ Whether trial judge erred in directing a verdict of acquittal ‑‑ Test for a directed verdict.
The only issue raised at the accused's trial for rape was identification. Complainant, the only witness with respect to this issue, was attacked on a street shortly after midnight and dragged behind a shed where she was sexually assaulted. The incident took approximately twenty minutes. She testified that although it was dark behind the shed she was still able to see her assailant's face. She described him to the police on three different occasions with some minor variations. Two weeks after the attack, the complainant took part in a courtroom identification. She reacted visibly when she saw the accused and told the police that he looked like her assailant, but she was not sure because her view was obstructed by a sheriff. On a second courtroom identification two days later, she positively identified the accused as her assailant. She did so again at the preliminary hearing and at the trial. At the close of the Crown's case, the trial judge weighed and considered the quality of the evidence and granted a motion for a directed verdict. The majority of the Court of Appeal allowed the Crown's appeal and ordered a new trial. This appeal is to determine whether the trial judge erred in directing a verdict of acquittal despite the fact that there was some evidence as to the identification of the accused.
Held (Lamer and La Forest JJ. dissenting): The appeal should be dismissed.
Per Beetz, Estey, McIntyre, Chouinard and Le Dain JJ.: In deciding whether to grant a motion for a directed verdict, the trial judge must determine "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". A trial judge is not entitled to withdraw a case from a jury where there is admissible evidence which could, if believed, result in a conviction, notwithstanding the frailties of the evidence. It is not the trial judge's function to weigh or consider the quality of the evidence. The weight that should be given to evidence, like questions of credibility, are matters for the jury only. In the case at bar, there was direct evidence of identification and the case should have been left to the jury with a proper caution.
Per Dickson C.J. and Wilson J.: The governing test in Canada for a directed verdict is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". This test may be susceptible of more than one interpretation, but an examination of its antecedents support the view that at this stage of the trial, the basis on which a trial judge can withdraw a case from the jury is extremely narrow. Although some cases suggest that the trial judge can direct a verdict only where there is no evidence at all, the words "no evidence", in this context, are not to be taken literally as meaning a total absence of evidence but rather as meaning no evidence capable of supporting a conviction.
In determining whether or not to direct a verdict in cases which turn on eyewitness testimony, the trial judge should address his mind to the factors going to the quality of the identification evidence and, where the frailties in the evidence can be remedied by a caution, he should leave the matter to the jury.
In the present case, the trial judge erred in law in directing a verdict of acquittal on the basis solely of the quality of the initial identification evidence. The substantial consistency in the complainant's description of the accused given on three separate occasions prior to any improper police procedures required him to put the evidence to the jury with a caution as to the inherent frailty of the identification evidence, coupled with an instruction to consider carefully the conditions under which the identification is made. A jury is in just as good a position as the trial judge to assess the witness' opportunity for observation and the strength of his evidence based on that opportunity.
The courtroom identification neither destroyed the complainant's fairly reliable initial evidence nor weakened it beyond the point where it could not be taken care of by a properly worded caution. The conduct of the police line‑up, while irregular, was not so irregular by Canadian standards as to be beyond the capabilities of a jury, properly directed, to balance the overall strengths and weaknesses of her evidence against the prejudicial impact of the improper identification process and the difficulties inherent in the complainant's initial observation of her assailant.
Per Lamer and La Forest JJ., dissenting: The test to be applied by a judge when deciding a motion for a directed verdict is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". When assessing the sufficiency of the evidence, the trial judge cannot assess the witness' honesty which is a matter for the jury but may assess the witness' capacity to be accurate and his resulting reliability. Thus, when applied to testimonial evidence, the test involves an assessment by the judge of the circumstances under which a witness makes his observations. These circumstances may undermine the reliability of the witness' accuracy.
In the case at bar, the trial judge did not err in directing a verdict of acquittal. It is clear from his reasons that he applied the proper test and that he addressed his mind to an assessment of the quality of the identification evidence. He found that the difficult conditions under which the observations were made and the improper identification procedures of the police‑‑procedures that could tend to induce the witness into mistakenly identifying someone‑‑made it too dangerous to rest a conviction on her testimony, honest as it might well have been.
The majority of the Court of Appeal found that it would not have been unsafe to convict, while the dissenting judge shared the trial judge's view. This did not raise a question of law alone in the Court of Appeal, and the Crown's appeal should have been dismissed.
Cases Cited
By McIntyre J.
United States of America v. Shephard, [1977] 2 S.C.R. 1067, applied; R. v. Comba, [1938] S.C.R. 396, aff'g [1938] O.R. 200; R. v. Turnbull, [1976] 3 All E.R. 549, considered; R. v. Duhamel, [1981] 1 W.W.R. 22; R. v. Atwood and Robbins (1788), 1 Leach 464, 168 E.R. 334; Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193; R. v. Morabito, [1949] S.C.R. 172; R. v. Dowsey (1866), 6 N.S.R. 93; R. v. Lloyd (1890), 19 O.R. 352; Girvin v. The King (1911), 45 S.C.R. 167; Fraser v. The King, [1936] S.C.R. 1; Fraser v. The King, [1936] S.C.R. 296; R. v. Knox, [1968] 2 C.C.C. 348; R. v. Sawrenko (1971), 4 C.C.C. (2d) 338; R. v. Paul, [1977] 1 S.C.R. 181; Lavoie v. The Queen, [1977] 1 S.C.R. 193; R. v. Cooper, [1978] 1 S.C.R. 860, referred to.
By Wilson J.
United States of America v. Shephard, [1977] 2 S.C.R. 1067, applied; R. v. Turnbull; R. v. Roberts; R. v. Whitby, [1976] 3 All E.R. 549; R. v. Comba, [1938] S.C.R. 396; R. v. Morabito, [1949] S.C.R. 172, aff'g (1948), 91 C.C.C. 210; R. v. Faryna (1982), 18 Man. R. (2d) 185; R. v. Sutton, [1970] 2 O.R. 358; R. v. Smith (1975), 12 N.S.R. (2d) 289; R. v. Engel (1981), 9 Man. R. (2d) 279; R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122; Marcoux v. The Queen, [1976] 1 S.C.R. 763, considered; R. v. Duhamel, [1981] 1 W.W.R. 22; Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136; John v. The Queen, [1971] S.C.R. 781; R. v. Paul, [1977] 1 S.C.R. 181; Lavoie v. The Queen, [1977] 1 S.C.R. 193; R. v. Kyling, [1970] S.C.R. 953; Feeley v. The Queen, [1953] 1 S.C.R. 59; Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206; R. v. Smierciak (1946), 87 C.C.C. 175; R. v. Wray, [1971] S.C.R. 272, referred to.
By Lamer J. (dissenting)
United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Comba, [1938] S.C.R. 396; Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206; R. v. Turnbull, [1976] 3 All E.R. 549; R. v. Sutton, [1970] 2 O.R. 358; R. v. Spatola, [1970] 4 C.C.C. 241; R. v. Duhamel, [1981] 1 W.W.R. 22; R. v. Atfield (1983), 42 A.R. 294; R. v. Faryna (1982), 18 Man. R. (2d) 185; R. v. Smierciak (1946), 87 C.C.C. 175.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 475 [am. R.S.C. 1970 (2nd Supp.), c. 2, s. 8; 1985 (Can.), c. 19, s. 101(1)], 618(2)(a) [rep. & subs. 1974‑75‑76 (Can.), c. 105, s. 18(2)].
Authors Cited
Devlin, P. Trial by Jury, London, Stevens & Sons Ltd., 1966.
Morris, J. Fish. "Committal for Trial: ‘Some’ Evidence is Not ‘Sufficient’ " (1979), 39 R. du B. 607.
APPEAL from a judgment of the Manitoba Court of Appeal (1983), 35 C.R. (3d) 272, 22 Man. R. (2d) 223, allowing the Crown's appeal from the accused's acquittal on a directed verdict on a charge of rape and ordering a new trial. Appeal dismissed, Lamer and La Forest JJ. dissenting.
John Scurfield, for the appellant.
Brian Kaplan, for the respondent.
The reasons of Dickson C.J. and Wilson J. were delivered by
1. Wilson J.‑‑I have had the benefit of reading the reasons of my colleague, Lamer J. He would allow the appeal on the basis that the majority of the Court of Appeal had no jurisdiction to interfere with the trial judge's decision because no question of law arose. With respect, I have a different view. I think two questions of law arose.
2. The first question of law concerns the test to be applied in determining when a case should be withdrawn from the jury because of the quality of the identification evidence. Although there is a considerable amount of jurisprudence on the test for a directed verdict, some confusion has been generated by the use of different terms to describe what may or may not be different tests. An examination of the existing authorities is, I believe, helpful in eliciting the proper principles.
3. The second question of law raised by the trial judge's decision is when subsequent improper police procedures so impair the quality of earlier identification evidence that the case should be withdrawn from the jury. It would appear that the trial judge would have directed the verdict on either of these grounds. However, he clearly felt that the second ground reinforced his conclusion on the first and this is not surprising since the two are obviously linked. It would seem that the weaker the initial identification evidence the less impropriety it would take to undermine it totally. The stronger the initial identification evidence the higher the degree of subsequent impropriety it might take to undermine it.
1. The Courts Below
4. There is some disagreement in the courts below as to the basis on which the evidence was withheld from the jury. It is clear that Wright J. at trial felt that the complainant's testimony met the test of extreme insufficiency required for a directed verdict. What is unclear is whether this was because of the potential for inaccuracy in the complainant's initial observation of her assailant or because of the irregularities in her subsequent identification of Mr. Mezzo as the accused. Wright J. analyzed the problem before him in terms of the English Court of Appeal's decision in R. v. Turnbull, [1976] 3 All E.R. 549. The key passage from Wright J.'s reasons reads:
I have concluded that these facts fall squarely within the directions in Turnbull, approved by the Alberta Court of Appeal, and even where there has been a proper or adequate identity parade, require that the case be taken from the jury.
In the present case there is the additional factor that I do not believe the procedure followed by the police in the subsequent identification of the accused by the complainant at the police station was proper and that fact has further damaged the complainant's identification evidence.
(Emphasis added.)
5. There is nothing in Wright J.'s reasons to indicate that he considered the possibility of counteracting the frailties in the complainant's initial observation of her assailant with a strongly worded caution to the jury. His failure to do so may have been due to the fact that he collapsed the issue of the quality of the initial identification with the issue of the effect of the improper police procedures. This seems to be the interpretation favoured by Matas J.A., dissenting in the Court of Appeal (1983), 35 C.R. (3d) 272. He expressed the view that Wright J. could not possibly have decided to direct a verdict on the basis of the complainant's initial identification evidence alone as that would be to take the principles in Turnbull too far.
6. With respect, I think Matas J.A. may be wrong in his assessment of what the trial judge did. I think that the trial judge in the passage already quoted from his reasons did decide that the frailties of the initial identification evidence were reason enough for directing a verdict. He specifically states that "even where there has been a proper or adequate identity parade" the case must be taken from the jury. However, he went on to find that the "additional factor" of the improper police procedures "further damaged" the complainant's initial identification evidence. The question whether Wright J. erred in law in his assessment of the complainant's initial identification evidence is therefore validly raised. Indeed, as I hope to show in the ensuing analysis of the authorities, Wright J. erred in taking the case from the jury on this basis. The substantial consistency in the complainant's descriptions of the accused given on three separate occasions prior to any improper police procedures required him, in my view, to put the evidence to the jury with an appropriate caution.
7. Matas J.A. in his dissenting reasons concluded that the trial judge was correct in directing a verdict. He thought that "the difficulty with the several descriptions furnished by the complainant was compounded by the improper show‑up identifications" (p. 284). He concluded that it was impossible to say "if the complainant identified the accused on the second occasion only as the man she saw in court the first time or whether she was making a valid identification of the assailant" (p. 285). Accordingly, for this reason Matas J.A. thought that the only course open to the trial judge was to direct a verdict of acquittal.
8. Hall J.A., speaking for the majority, had a different view. He considered that the identification evidence of the complainant should have gone to the jury for an assessment of its quality in light of the opportunity she had to see him provided proper directions were given by the trial judge. He found that the applicable principle was that enunciated in R. v. Comba, [1938] S.C.R. 396, and adopted by the Alberta Court of Appeal in R. v. Duhamel, [1981] 1 W.W.R. 22, rather than that put forward in Turnbull which the trial judge had applied. In other words, the proper test in Hall J.A.'s view was whether in light of the "dubious nature of the evidence it would be unsafe to find the prisoner guilty".
2. The Test for a Directed Verdict
9. In Canada the governing test for a directed verdict is set out by Ritchie J. in United States of America v. Shephard, [1977] 2 S.C.R. 1067 at p. 1080, as follows:
... whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required 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.
I agree with Lamer J. that the division of views expressed by the majority and the minority in Shephard is of little relevance here. It is clear that in the present case the issue was not the credibility of the complainant but the quality of her evidence based on her opportunities for observation. However, I disagree with my colleague's view that " "quality" of evidence is truly the realm of the trial judge". A jury is in just as good a position as a trial judge to assess the witness' opportunity for observation and the strength of his or her evidence based on that opportunity. Indeed, this is something that lay people are peculiarly well equipped to do.
10. In my view, both the law and the traditional importance of the jury require a large measure of deference to be accorded the jury even where quality as opposed to credibility is at issue. Although by itself Ritchie J.'s test in Shephard may be susceptible of more than one interpretation, an examination of its antecedents supports the view that at this stage of the trial the judge's function is narrowly circumscribed by the central role of the trier of fact.
11. In R. v. Morabito, [1949] S.C.R. 172, affirming (1948), 91 C.C.C. 210 (Ont. C.A.), this Court had occasion to expand on the dual role of a trial judge sitting alone on a motion for a directed verdict. In support of the motion the defence had argued that the evidence adduced by the Crown should leave in the mind of the trial judge a reasonable doubt as to the guilt of the accused. The trial judge proceeded to weigh the evidence in relation to the reasonable doubt standard and acquitted the accused. The Court of Appeal upheld the acquittal. However, Roach J.A. in dissent was of the view that the trial judge had no jurisdiction at this stage of the proceedings to consider the question of reasonable doubt. Rather, that question was for the jury or for the judge qua jury only after the defence had made its election to submit or not submit additional evidence and after that evidence, if any, was in. Roach J.A. described the limited nature of the trial judge's decision at this intermediate stage in terms of a choice between "evidence which...would justify a conviction" and "no evidence" as follows at pp. 215‑16:
The question whether or not there was any evidence which, if believed, would justify a conviction, is a question of law. I have recorded sufficient of the Crown's evidence to make it perfectly clear that as a matter of law if the accused was being tried by a Judge and jury, rather than by a Judge alone, the Judge would have had to leave the case to the consideration of the jury either to acquit or to convict. He could not have instructed the jury that there was no evidence and directed them to return a verdict of acquittal.
Roach J.A.'s dissenting reasons found favour with a majority of this Court and it was unanimously agreed that a new trial should be ordered.
12. A similar question as to the scope of the trial judge's function on a motion for a directed verdict arose in the context of circumstantial evidence in R. v. Comba, supra. In that case this Court set aside a jury verdict of guilt. Sir Lyman Duff C.J. stated, in effect, that cases comprised wholly of circumstantial evidence should be measured against the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136. The rule states that where all the evidence is circumstantial the accused can be found guilty only if the evidence is both consistent with guilt and inconsistent with any other rational conclusion. He also remarked that this would have been an appropriate case to direct a verdict of acquittal. A line of jurisprudence subsequently developed which incorporated the rule in Hodge’s Case into the trial judge's deliberations on a motion for a directed verdict, thus creating an exception where circumstantial evidence was concerned to the narrow role of the judge at this stage of the trial.
13. The divergence of views on this point was not resolved until the mid 1970's. In John v. The Queen, [1971] S.C.R. 781, this Court stated that the rule in Hodge's Case was simply an elaboration of the reasonable doubt standard. The logical extension of this position occurred in R. v. Paul, [1977] 1 S.C.R. 181, and Lavoie v. The Queen, [1977] 1 S.C.R. 193, cases in which this Court held that the rule in Hodge’s Case and the question of reasonable doubt does not arise on a motion for a directed verdict. Although additional confusion has been generated by Ritchie J.'s seeming approval in Shephard of the notion that Sir Lyman Duff C.J. intended to create a special exception in Comba, I think his remarks must be read in light of the clear rejection only a few months later of the relevance of the Hodge's Case standard to directed verdicts in Lavoie, supra. Laskin C.J. wrote the judgment of a unanimous Court which included Ritchie J. and which reads in its entirety as follows at p. 193:
It will not be necessary to hear you, Mr. Gagnon. We are all of the opinion that there was no error in the judgment of the Court of Appeal. On the motion by the accused for a directed verdict, the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, does not apply, as this Court held in R. v. Paul, [1977] 1 S.C.R. 181. The appeal is dismissed.
Accordingly, the notion of a Comba exception to general principles in terms of the standard against which to measure circumstantial evidence at this stage of a trial was finally put to rest and the restrictive role of the trial judge reaffirmed.
14. Some of the other antecedents to Shephard lend further support to the view that the basis on which a trial judge can withdraw a case from the jury is extremely narrow. As mentioned earlier, Roach J.A. of the Court of Appeal in Morabito spoke in terms of "no evidence" and several other decisions describe the directed verdict question as the "absence of evidence" question. Perhaps the strongest statement to this effect is by Pigeon J. in R. v. Kyling, [1970] S.C.R. 953. In the course of his reasons he stated at p. 955:
The first reason given by the majority for dismissing the appeal was that the decision of the trial court was not really a nonsuit, but rather an acquittal on the merits, for an insufficiency, not an absence, of evidence. It was rightly pointed out that whereas the absence of any evidence is a question of law, the insufficiency of the evidence is essentially a question of fact. The right of appeal by the prosecution, however, is only on a question of law.
And later at p. 956:
In The King v. Morabito, [1949] S.C.R. 172, this Court held that a nonsuit pronounced on a motion by the defence after the close of the case for the Crown is a decision on a question of law, namely, the absence of evidence. This rule was also held applicable to summary proceedings by the judgment in Feeley et al. v. The Queen, [1953] 1 S.C.R. 59. I have found nothing in the 1955 Criminal Code that might imply a change in the principles underlying these judgments, nor has anything to this effect been brought to our attention.
15. The language in these cases would seem to limit intervention by the trial judge to instances in which there is absolutely no evidence at all. While this would seem to offer a simple and clear‑cut standard, I believe that in this context "no evidence" is not to be taken literally as meaning a total absence of any evidence but as meaning rather no evidence capable of supporting a conviction.
16. The dissenting reasons of de Grandpré J. in Paul afford, perhaps, the clearest insight into the special meaning of "no evidence". In that case Ritchie J. for the majority ordered a new trial, thus overturning a directed verdict of acquittal at trial on a charge of knowing possession of stolen goods. He stated at p. 189 that in his view the admitted facts were such that "a properly instructed jury might reasonably have drawn the inference that they [the goods] did not get there without having been stolen by somebody". De Grandpré J. (Laskin C.J. and Spence J. concurring) disagreed. He felt that evidence on two of the essential elements of the offence in question was lacking. In the course of his reasons de Grandpré J. wrote at pp. 185‑86:
There is no question that on a motion for nonsuit the accused can only be released if there is an absence of evidence. In this connection we need only refer to the remarks of Pigeon J. in The Queen v. Kyling, [1970] S.C.R. 953, at p. 956:
...
As Pigeon J. points out, the applicable principles were discussed more fully in Morabito and Feeley, and I adopt the reasons expressed in those cases.
However, the expression "absence of evidence" does not mean that the motion for a nonsuit must be dismissed whenever there is an iota of evidence, no matter how inconsequential this may be. On the contrary, a careful reading of Feeley, referred to above, discloses that there were few iotas of evidence in that case. Appellants had been acquitted at first instance on a motion for nonsuit, and the Court of Appeal had set aside this acquittal and ordered a new trial. This Court unanimously reinstated the judgment of acquittal with respect to three of the four appellants. Cartwright J., as he then was, speaking for the Court, emphasized that the various aspects of the evidence "taken together, are insufficient to make out a prima facie case" (p. 64).
(Emphasis added.)
In de Grandpré J.'s view the Court of Appeal had not only applied the correct principles of law but had also correctly concluded that the evidence submitted by the Crown met the "absence of evidence" standard.
17. The division of views in Paul in a sense highlights the area in which a trial judge can legitimately impose his or her assessment of the evidence on the trier of fact. As in Comba the crucial evidence in Paul was circumstantial. The minority found that it failed to establish any direct link between the goods in question and a theft. Ritchie J. for the majority thought that the facts were such that one could infer they had been stolen. He stated at pp. 191‑92:
As I have indicated, however, I do not think that the judgment of Sir Lyman Duff in the Comba Case, supra, in which he reiterates the rule in Hodge’s Case has any application to the circumstances here disclosed. I am rather of opinion, as indicated by Mr. Justice Pigeon in R. v. Kyling, [1970] S.C.R. 953 at p. 957, that the true test to be applied before granting a nonsuit is whether the Crown evidence gives rise merely to a suspicion or whether it is such as to justify the drawing of an inference.
(Emphasis added.)
Thus, in a sense, what was a "mere suspicion" for the minority was a "valid inference" for the majority. This debate over the line between suspicion and inference is likely to appear in any case in which circumstantial evidence of an essential element of the offence is dubious. However, even where the critical link is purported to be established by direct evidence, it can, in my view, be withheld from the jury only at that same point, i.e., where the evidence approaches a similar level of extreme dubiousness or insufficiency in the sense of simply raising a suspicion or a conjecture of guilt and no more.
18. The traditional formulation of the test for a directed verdict also suggests that the "absence of evidence" standard is not meant to be interpreted in literal terms. In Feeley v. The Queen, [1953] 1 S.C.R. 59, Cartwright J. (as he then was) for the Court summarized the applicable principles as follows at pp. 60‑61:
It is common ground that had the learned Magistrate refused the motion the appellants would have had the right to call evidence for the defence if so advised and counsel for the respondent submits that the decision of this Court in The King v. Morabito, [1949] S.C.R. 172, establishes (i) that at that stage it was open to the learned Magistrate to dismiss the charge unless there was no evidence on which, had the trial been before a jury, a properly instructed jury, acting reasonably, might have convicted the accused, and (ii) that whether or not there was such evidence is "a question of law alone" within the meaning of s. 1013(4) of the Code. I agree with this submission.
Cartwright J.'s qualification of the appropriate standard in terms of whether a properly instructed jury might convict appears throughout the jurisprudence and is reflected by Ritchie J. in Shephard. Indeed, the link made by Ritchie J. in Shephard between the test for a directed verdict and that for sufficiency of evidence under s. 475 of the Criminal Code supports the notion that "no evidence" represents a degree of quality rather than an absence of any evidence, good or bad. In addition, Ritchie J. in the course of his reasons gives some indication of the point at which poor quality evidence reaches that degree of extreme insufficiency. His implicit approval of the refusal to issue a warrant for extradition in Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206, provides a concrete illustration of identification evidence which is so dubious that a properly instructed jury could not reasonably convict. In that case, Thurlow J. (as he then was) of the Federal Court of Appeal described the evidence in question as follows at p. 1214:
Indeed, I find it inconceivable that a person should be put on trial on such flimsy evidence as a purported identification made a year after the event by a person who did not previously know the accused and whose only opportunity to observe him was a fleeting one from a distance of some sixty feet, if indeed he ever got that close. The evidence of the witness having selected the respondent's identification card is not in itself evidence implicating the respondent, and in the circumstances as described it tends to weaken rather than to strengthen the identification made by Atilano at the hearing ... Nor was there anything else to implicate the respondent or corroborate such identification.
19. Unlike my colleague, Lamer J., I do not think that the extension of the absence of evidence standard implicit in the test of whether a properly instructed jury might convict vests in the trial judge an unbounded discretion over the qualitative aspects of evidence. The use of the terms "no evidence" and "absence of evidence" at the very least imports a notion of constraint and stringency into the standard. However, I do agree with my colleague that Sir Lyman Duff C.J.'s direction in Comba with regard to the dubious nature of the evidence does not create a test of dubiousness which is separate and distinct from the test in Shephard. In my view Comba and Shephard are consistent with one another. Certainly this was the view of Ritchie J. in Shephard. He remarked on Comba at pp. 1081‑82 as follows:
It is to be observed that there was no suggestion in the Comba case that any of the evidence called by the Crown was either tainted or unreliable. It came from witnesses whose integrity was at no time put in question and who testified as to a variety of circumstances which had excited enough suspicion against the accused to occasion his arrest and trial but which taken together did not establish his guilt in accordance with the accepted standards of proof in such cases which are described by Duff C.J. ...
Ritchie J. then quotes Sir Lyman Duff C.J.'s formulation of the rule in Hodge's Case. As mentioned earlier, this causes some confusion over whether Comba imported the reasonable doubt standard into the test for a directed verdict in cases based on circumstantial evidence. In light of this Court's position in Paul and in Lavoie, it is my view that Ritchie J. in Shephard was using Comba simply to illustrate his point that poor quality evidence which merely raises a suspicion may legitimately be withheld from the jury in contra‑distinction to evidence that is poor in the sense of lacking in credibility. The question then is what content is to be given to Sir Lyman Duff C.J.'s concept of dubiousness or to Ritchie J.'s concept of a proper and reasonable basis for conviction. Can the content be articulated in a way that is useful without being overly cumbersome and inflexible?
20. In the case at bar, Hall J.A. proposed the Comba test of dubiousness as an alternative to Lord Widgery C.J.'s direction in Turnbull which had been relied on by the trial judge. Again, I do not think that the controversy in this case stems from competing judicial tests. Apart from the question of Lord Widgery C.J.'s requirement of corroboration for poor quality evidence which does not arise here, I do not think there is such inconsistency between Turnbull and Shephard that they must be viewed as imposing different standards. In fact, Turnbull makes it quite clear that what is usually required in cases which turn on eyewitness testimony is a direction to the jury as to the inherent frailty of identification evidence coupled with an instruction to consider carefully the conditions under which the identification is made. Lord Widgery C.J. elaborated on the caution to be given as follows at p. 552:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
One can deduce from this catalogue of impediments to accuracy that observations made under less than ideal conditions by witnesses can nevertheless be put to the jury. This is consistent with the Shephard formulation of the test.
21. After giving several examples of good quality evidence, Lord Widgery C.J. went on to suggest at p. 553 that where the quality is poor "as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions", the trial judge should withdraw the case from the jury and direct a verdict of acquittal. Thus, at some point the adverse conditions for observation cannot be cured by a caution. Again this is consistent with Ritchie J.'s implicit approval of Hernandez. Unfortunately, Lord Widgery C.J. does not indicate, and it is perhaps impossible to do so, when the borderline is crossed. No one would take issue with the "fleeting glance" test; it represents the extreme of frailty which cannot be cured by a caution. The real difficulty is with "a longer observation made in difficult conditions". In this sense Turnbull is more significant for what it does not lay down. If it sets out any principle with regard to the test for a directed verdict, it is the principle that the quality of a witness' identification is directly related to the extent of the witness' opportunity for observation. However, Turnbull offers no workable criteria for determining when conditions are so difficult that an eyewitness' testimony should not be relied on or, in the language of the Canadian cases, when valid inferences become mere suspicions. The only guidance Turnbull gives is on the actual fact situation in Turnbull itself and in the accompanying appeals.
22. The fact situation in Turnbull is by and large unhelpful as the challenged evidence was recognition evidence and was supported by ample additional evidence. Accordingly, it passed Lord Widgery C.J.'s test and was found to have been properly put to the jury. In the other two appeals dealt with by the Court at the same time the convictions were quashed. However, they involved significantly worse conditions of observation than those in the present case and in this respect resemble the evidentiary basis in Hernandez. In R. v. Roberts the assailant was a stranger to the complainant, the attack was over in a few moments, the place of the attack was dark except for the flashing lights of the dance hall, the accused's subsequent conduct was consistent with his denial of guilt and there were significant contradictions in the descriptions of the identifying witnesses. In R. v. Whitby the identifications were of a man in a balaclava who had been seen for a short time during a robbery. One witness had seen him from the rear only; the other witness gave a completely inconsistent description before picking the accused out of a line‑up. There is very little one can point to in either of these cases which would redeem the obvious untrustworthiness of the identification evidence. Together with Comba and Hernandez they serve to delineate the line beyond which it would be improper in law to put the question of guilt or innocence to the jury. The case at hand requires that one delineate the opposite boundary, namely that beyond which it would be improper in law to withhold the question of culpability from the jury. I agree that within these broad parameters deference should in general be paid to the decision of the trial judge. Although the cases continually assert that whether there is an "absence of evidence" is a question of law upon which either party can appeal, this does not mean that the reviewing court should automatically intervene whenever it disagrees with the trial judge's assessment. However, unlike Lamer J., I do not believe that Wright J.'s assessment of the complainant's initial identification evidence falls within that area of deference.
23. It seems to me that Turnbull provides some useful guidance on how to delineate the line between suspicion and inference and fill the analytic gap left by Lord Widgery C.J.'s reference to "difficult conditions". One can infer from the kinds of considerations enumerated in that case as going to the quality of identification evidence that, at the very least, the trial judge should address his or her mind to the same kind of considerations in determining whether or not to direct a verdict. In addition, it would seem to follow that where the frailties in the evidence can be remedied by a caution, the judge should leave the matter to the jury. This, indeed, is the ultimate test; can the frailties be remedied by an appropriate caution? It is not, in my view, good enough for a trial judge to make a finding as to the quality of the evidence. He must go on to determine whether the adverse conditions for observation can be taken care of by an appropriate caution. If they can, then Ritchie J.'s test of sufficiency in Shephard can be met, i.e., there is "evidence upon which a reasonable jury properly instructed could return a verdict of guilty" (p. 1080).
24. I do not mean to suggest that the trial judge should in every case be held to a rigid tabulation of the factors listed in Turnbull. A mechanical test would not reflect the infinite particularity of possible fact situations. The Turnbull caution does, however, identify a number of factors which can clearly affect the quality of eyewitness evidence: length of observation, distance, light, obstructions to view, recognition, time between original observation and subsequent description to the police and discrepancies between that description and the accused's appear