The Problem with In-dock Identification

Few things are more frightening than being accused of a crime you did not commit on the strength of a stranger's mistaken memory. Eyewitness misidentification is one of the leading causes of wrongful convictions in Canada and around the world. A recent decision from Ontario's Court of Appeal, R v Goodridge, 2026 ONCA 538, grapples with this danger — and reaches a conclusion that, while grounded in existing law, leaves an uncomfortable gap in the protections available to an accused person early in the process.

What Happened

Gregory Goodridge was charged with aggravated assault. The allegation was that he stabbed a man three times following a dispute at an LCBO. The central question was not whether the assault happened, but whether Mr. Goodridge was the person who did it.

The Crown's case rested entirely on one piece of evidence: the victim's identification of Mr. Goodridge in the courtroom. While honest, that identification was “manifestly unreliable”. The victim was a stranger to the accused; he was identifying him across racial lines; he could not recognize him in the security footage; and he could not reliably place photographs rom inside the store. There was no good reason to think the in-court identification was based on a reliable memory, rather than pointing to the only person sitting in the prisoner’s dock.

Despite this, the preliminary inquiry judge committed Mr. Goodridge to stand trial. Mr. Goodridge challenged that decision, and the case worked its way up to the Court of Appeal.

Some Background: Preliminary Inquiries and "In-Dock" Identification

Two concepts are essential to understanding this case.

The first is the preliminary inquiry. For certain serious charges, before a case proceeds to trial, the accused is entitled to a screening hearing at which the Crown must show it has enough evidence to justify sending the accused to trial. The threshold is low. The Crown does not have to prove guilt; it only has to present some evidence on each essential element of the offence such that a reasonable jury, properly instructed, could convict. Crucially, the preliminary inquiry judge is not permitted to weigh the reliability of the evidence or decide whom to believe. Those are jobs for the trial judge or jury.

The second is "in-dock" identification. This is when a witness identifies the accused for the first time in the courtroom itself — pointing to the person seated in the prisoner's box and saying, in effect, "that's the one." Courts have long recognized this as an especially weak and dangerous form of evidence. The reason is intuitive: the accused is obviously the person on trial. A witness who wants to be helpful, and who honestly believes they remember the attacker, may simply identify the person the setting so plainly points to. An honest witness can be completely, confidently wrong.

The Legal Controversy

Mr. Goodridge's argument rested on a 2013 Supreme Court of Canada decision, R v Hay. In that case, the Court said — in the context of a trial judge deciding whether to take a case away from the jury — that where the Crown's case rests solely on eyewitness testimony that would necessarily leave a reasonable juror in doubt, the judge must direct an acquittal.

Mr. Goodridge argued that this principle changed the law, and that it should apply at the preliminary inquiry stage too. If a piece of identification evidence is so weak that no reasonable jury could safely convict on it, why should an accused person be forced to stand trial at all? Why not end the matter at the preliminary inquiry, rather than making him wait years for a trial and a possible appeal?

The Court's Decision

Writing for a unanimous panel, Justice Paciocco dismissed the appeal on two grounds.

First, he was not persuaded that Hay changed the law at all. Long-standing Supreme Court authority holds that a judge conducting this kind of screening cannot weigh the reliability of direct evidence. And an in-dock identification, however weak, is direct evidence: if the jury believes it, it resolves the question of identity. The judge's only task with direct evidence is to confirm it exists; whether to believe it is for the jury. (By contrast, purely circumstantial evidence is subject to a "limited weighing," but that was not the situation here.) Read in context, Justice Paciocco concluded, Hay did not overturn those principles.

Second, even if Hay did change the law for trial judges deciding directed-verdict motions, it does not apply to preliminary inquiries. Preliminary inquiries are meant to be fast, streamlined screening proceedings. Allowing the judge to weigh the reliability of identification evidence would turn them into mini-trials and would intrude on the jury's constitutional role as the ultimate finder of fact.

The Court acknowledged the obvious tension in its own conclusion. Ontario courts have said that a badly flawed in-dock identification may be entitled to "virtually no weight". Mr. Goodridge's counsel argued there is not much distance between evidence worth "virtually no weight" and "no evidence" at all. The Court agreed the distance is short — but held that, as the law currently stands, it is not short enough to justify discharging an accused at the preliminary inquiry stage. Evidence worth almost nothing is still, technically, some evidence. And so Mr. Goodridge must stand trial.

Our Perspective: A Gap Worth Closing

The result in Goodridge exposes a real weakness in the protections our system offers against wrongful convictions. In my view, it is a decision the Supreme Court of Canada should take the opportunity to revisit.

Here is the concern. The entire point of having judges screen cases — at a preliminary inquiry, or on a motion for a directed verdict — is to act as a safeguard: to ensure that no one is convicted, or even put through the ordeal of a trial, on evidence that could not support a conviction. In-dock identification is precisely the kind of evidence that safeguard should catch. It is notoriously unreliable, and it has contributed to documented wrongful convictions. As counsel argued, the identification in this case carried nearly every hallmark associated with those past miscarriages of justice: a stranger, a cross-racial identification, a poor opportunity to observe, and no reliable prior identification process.

To say that such evidence, though worth "virtually no weight," is nonetheless enough to force a person to trial is to define the safeguard so narrowly that it catches almost nothing. A person in Mr. Goodridge's position must now wait — potentially years — for a trial and, if convicted, an appeal, before a court with the power to weigh the evidence can finally say what may already be obvious: that a conviction resting on this identification alone cannot stand. It would be better, and more humane, for the law to permit that conclusion to be reached at the outset.

That is a matter for the Supreme Court, if the case goes further. For now, Goodridge is the governing law in Ontario.

What This Means If You Are Facing Charges Based on Eyewitness Identification

If you have been charged with an offence and the case against you depends on someone identifying you — particularly a stranger, and particularly for the first time in a courtroom — the strength of that identification is one of the most important issues in your case.

The lesson of Goodridge is not that weak identification evidence will win the day early. Under the current law, it usually will not end the case at the preliminary inquiry stage. But it also means that the real battle over identification will happen at trial, where a judge or jury can weigh reliability, and where skilled cross-examination and careful argument about the frailties of eyewitness memory can make the difference between conviction and acquittal.

An experienced criminal defence lawyer will know how to expose the weaknesses in an identification: the conditions of the original observation, the passage of time, the absence of a proper identification procedure, and the well-documented science on how honest witnesses come to hold false but confident memories. Where identity is the issue, that work is the heart of the defence.