Her Majesty the Queen v. Holden [Indexed as: R. v. Holden]
56 O.R. (3d) 119
[2001] O.J. No. 3621
Docket No. C29660
Court of Appeal for Ontario
Weiler, Austin and Borins JJ.A.
September 17, 2001
Criminal law -- Verdict -- Unreasonable verdict -- Accused convicted of kidnapping and sexual assault -- Complainants' descriptions of alleged assailant not fully consistent with accused's appearance -- Conversations between complainants and with other witnesses contaminated evidence of all of them -- Photographic lineup mishandled -- Events described by complainants unlikely to have taken place within time frame of alleged offence -- Trial judge did not outline evidence on timing issue to jury and did not permit them to take notes -- Trial judge discouraged jury when they asked that crucial testimony be provided to them during their deliberations -- No physical evidence found to establish that complainants were in accused's car or house -- Accused's alibi supported by others -- Accused's conduct throughout was consistent with his innocence -- Verdict unreasonable.
The accused was convicted of kidnapping and sexual assault. The teenage complainants testified that a man driving a pick-up truck stopped to offer them a ride as they were walking along a highway in the early hours of the morning. He identified himself as a member of a particular local family. They declined the offer. They testified that the same man, this time driving a car, stopped them again a little later, pointed a shotgun at them and ordered them to get in the car. They were allegedly taken first to one house and then to another, where one of them was handcuffed and the other was tied and gagged with strips of towel. The man allegedly had sexual intercourse with one of the complainants. He let the complainants go, and they went to the house of a friend, B. The complainants later described the incident to B and to another friend, J. B and J decided that the accused was the person responsible, and they went to his home to confront him. He denied any involvement. The house where the assault allegedly occurred was identified as a house in which the accused had lived. The police executed a search warrant at the house and attempted to find evidence linking the complainants to the residence and the accused to the assault. No incriminating evidence was found. The complainants identified the accused in a photo lineup. Instead of presenting a single sheet with photos of all the members of the lineup on it, the complainants were each separately presented with a sequential array of 16 separate photos. The police were unaware at the time that one of the complainants was of the view that her assailant had a mole on his face. The accused was the only person in the lineup with a mole on his face. One of the complainants could only say that she was "pretty sure" the photograph she selected was her assailant. In addition, after tentatively selecting the accused's photograph, she then looked at all the photographs instead of following the preferred procedure of stopping after she had selected one.
The accused's position was that the events alleged must have been concocted because they could not have occurred within the period of time testified to by the complainants. Although the trial judge recognized the importance of the timing issue to the defence outside the presence of the jury, he did not put this important aspect of the defence case to the jury, nor did he outline the evidence that supported the defence position except in the most general way. Moreover, the jury was instructed not to take notes.
In the course of its deliberations, the jury asked for the testimony of the complainants and three other witnesses. The proceedings in the courtroom were not recorded by a court reporter. Instead, the courtroom was equipped with a monitored audio recording system. The trial judge consulted with the monitor and discovered that the requested testimony would take eight-and-one-half to nine hours to play. He told the jury that the testimony could be made available to them if they understood what they were committing themselves to, and asked whether, given how long it would take to hear the testimony, they wished to reconsider. The jury retired and did not mention the testimony again.
The accused appealed his conviction.
Held, the appeal should be allowed.
The verdict was unreasonable and could not be supported by the evidence. Neither complainant was able to explain or reconcile the timing within which the alleged events occurred. Given the importance of the timing issue, it was incumbent upon the trial judge to instruct the jury that if they accepted the evidence concerning the timing of events or had reasonable doubt about the issue, they were required to acquit the accused.
The trial judge's response to the jury's request for evidence amounted to no assistance at all. The credibility of the complainants was the central issue at trial. Having sat through the trial, the jury would have been aware that the evidence they wanted to hear was time consuming. However, they were obviously troubled and sought the assistance of the trial judge. The trial judge's comments dissuaded the jury from having their question answered.
Even if the jury had been fully and properly instructed, it could not have safely convicted on the evidence adduced. There were significant frailties in the identification evidence. There were discrepancies between the complainants' description of their alleged assailant and the appearance of the accused. Conversations between and among the complainants and B and J must inevitably have contaminated the evidence of all of them to one degree or another. The photographic lineup was mishandled. There were some significant differences between the accused's car and the complainants' description of their abductor's car. There was absolutely no physical evidence of any contact whatever between either complainant and the accused or between either complainant and the car or either house. The accused testified at trial and offered an alibi which was supported by others. His conduct throughout suggested openness and candour. Having regard to the conflicts and weaknesses in the evidence, the verdict was so unsafe as to be unreasonable.
APPEAL from a conviction on charges of kidnapping and sexual assault.
R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, apld Other cases referred to R. v. Biddle, 1995 134 (SCC), [1995] 1 S.C.R. 761, 22 O.R. (3d) 128n, 123 D.L.R. (4th) 22, 178 N.R. 208, 96 C.C.C. (3d) 321, 36 C.R. (4th) 321, revg (1993), 1993 8506 (ON CA), 14 O.R. (3d) 756, 84 C.C.C. (3d) 430, 24 C.R. (4th) 65 (C.A.); R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.); R. v. Kiyoshk (1999), 1999 2782 (ON CA), 133 C.C.C. (3d) 478 (Ont. C.A.); R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.); R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)
Marie Henein and Michael Lacy, for appellant. Howard Leibovich, for respondent.
The judgment of the court was delivered by
AUSTIN J.A.: --
Overview
1Robert Timothy Holden ("Holden") appeals from his conviction on charges of sexual assault and kidnapping following a trial before Daudlin J. with a jury and from the sentence imposed of eight years' imprisonment.
2This is an appeal from the appellant's conviction following a second trial. The first trial, which resulted in a hung jury, was held in January 1997.
3Counsel for the appellant advanced their argument respecting the appeal against conviction on a variety of grounds, namely: unreasonable verdict; weaknesses and conflicts in identification; collusion and collaboration among the witnesses; the trial judge's failure to allow a challenge for cause relating to publicity that occurred on the occasion of the earlier trial; the judge's failure to respond to a question from the jury; and the dismissal of a Corbett application. However, the focus of the appellant's submission is that the verdict reached by the jury was unreasonable and cannot be supported by the evidence. After carefully reviewing the evidence, I would give effect to this ground of appeal. Based on my analysis of the evidence which follows, I would allow the appeal, set aside the verdict of the jury and enter an acquittal on all charges.
Facts
4The Crown's case was that the complainants, K.C. and C.R., then ages 13 and 14 respectively, attended a Hallowe'en party at a school in or near Windsor, Ontario, returning to K.C.'s home after 9 p.m. on October 27, 1995. K.C.'s parents were away on holidays and her grandparents were caring for her and her brother J.C., age 18. K.C. had arranged with her grandparents for C.R. to stay overnight.
5The girls got into a verbal and physical altercation with J.C. and his friend David Kelly and then decided to go for a walk to cool off. K.C.'s home was in a rural location. According to both K.C. and C.R., they left the house at about 1:30 a.m. They did not have any plan and just kept walking down Highway 18 until about 2:30 a.m. Although there was little traffic, a few of the cars that passed by stopped and the occupants offered them a ride. Each time they refused. The girls said that eventually they decided to go to the home of D.B., a friend of C.R., because they did not want to return to the K.C. home. D.B. lived on the 3rd Concession.
6On the way to D.B.'s, K.C. said that a man in a pick-up truck with "some kind of piping" (consistent with roll bars) stopped and offered to take them "back to [his] brother's house on the 3rd Concession". He mentioned that the girls probably knew his brother's children, Heather and Chris Holden, or went to school with them. C.R. did not remember any piping on the truck, but testified that the driver said that "his brother is a Holden, just lived down the road". The girls declined the offer, the truck left and they continued on their way to D.B.'s house.
7K.C. testified that just before they reached the 3rd Concession a car pulled off the road beside them. The driver asked them if they were sure they did not want a ride. C.R. testified that this occurred about ten minutes after the pick- up truck had stopped. Both girls testified that they said "no" and that the occupant of the vehicle said they had better get in the car as he had a gun pointed at them. K.C. further testified that the driver then said he had a gun pointed at their heads and if they didn't get in he would blow their heads off. The complainants saw a long barrelled type of gun pointing out of the window behind the passenger side. The gun was aimed at them. They both got in the front seat of the car, C.R. first and then K.C., and the driver drove off in the direction opposite to that in which they had been walking.
8According to the complainants, the driver took them to two houses, first the "farmhouse" and then the "white house". At the farmhouse, the driver just pulled into the driveway and said he had to check for hunters. He did not get out of the car. According to K.C., he told them he had just been divorced and was required to move out of the house he was living in the following day. He said he was going to get the girls to clean his house and pay them $25 each.
9The complainants testified that after stopping briefly at the farmhouse, they returned to the highway and headed towards Harrow. They then went to another property with a "white house" on it. Their abductor told K.C. to go into the house and to turn on the lights inside the front door. He said that if she tried to run away he would be able to find her and would kill her. K.C. left the vehicle and went to the front door of the house. The door was not locked and she went inside. She turned on one of the light switches, which turned on the porch light, and stood inside the house waiting for the driver and C.R. to enter. According to K.C., the abductor and C.R. then entered the home from the side door. The driver turned on the lights in the house.
10The driver ordered them to sit on the couch. He suggested that one of them could clean the pots, but then changed his mind and told them to go into the bedroom and sit on the bed. K.C. testified that their captor followed them into the bedroom. He told her to stand in the corner and he lifted up her shirt and fondled her chest. He then told her to sit on the bed and he left the room with C.R. for about a minute. They returned and he took an air mattress out of the corner to block the window. He then retrieved a knife from the back of the bedroom door but put it back saying that he would not need it. He then retrieved handcuffs from a "fanny" pouch that was kept in the bedroom.
11The captor put the handcuffs on K.C.'s wrists behind her back. According to K.C., he retrieved a brown towel off the back of the door and cut strips off of it with the knife. C.R. testified that their captor retrieved the towel when he left the room with her and went to the utility room. He tied C.R.'s hands behind her back and put one of the strips around her mouth. Then he gagged K.C. with a strip of towel. According to K.C., the captor asked both her and C.R. if they had been with a man before, to which they replied"No". Next he said that because K.C. had been "sassy in the car" she was going to be the one. He told C.R. to sit on the floor at the end of the bed.
12According to K.C., the assailant took off her pants and underwear. C.R. closed her eyes. The captor told K.C. to spread her legs, which she did. She said she heard what she believed to be a condom wrapper being opened. Thereafter, the captor forcibly had sexual intercourse with K.C. She closed her eyes and told him it hurt a lot. When he was done, she saw him wearing a condom. K.C. told him not to hurt C.R. and he said he wouldn't because he took it all out on her. C.R. testified that they were in the residence for approximately 20 to 30 minutes. K.C. estimated the time at the white house to be half an hour to an hour.
13The abductor then drove the complainants back to the farmhouse. According to K.C., when they arrived at the farmhouse, he told them to go into the shed and to count to 100. He told them if they told anyone what had happened, he would find them and kill them. The assailant pulled away but came back after a couple of seconds. He asked the complainants their last names. C.R. said "D." and K.C. said "N." He also asked where they lived. K.C. said on Willow Beach and C.R. said on the 3rd Concession, each of which were false. K.C. testified that the assailant asked"Who is my brother?" The girls responded that they did not know. He said that he (their abductor) was the same guy who had stopped in the pick-up truck and had offered to take them to his brother's house.
14The complainants waited in the shed for a little while before resuming their walk to D.B.'s house. When a vehicle approached, the complainants would hide and wait for it to pass. D.B. testified that K.C. and C.R. woke him by banging on the door. He said he looked at the clock in his bedroom and that it was 3:00 a.m. According to K.C., she and C.R. had agreed that they would not tell anybody what had happened, although D.B. testified that the complainants were a little upset. They were going to try to act "perfectly normal" and pretend the abduction and sexual assault had never happened. The complainants said they told D.B. about the fight with K.C.'s brother, but not about the abduction or sexual assault. They watched television until about 4:30 a.m. and then went to sleep.
15When they woke up, K.C., instead of telephoning home, which would have awakened her grandparents, paged her brother J.C. to come and pick her up. He arrived with David Kelly who had stayed at the C. home overnight. Kelly and K.C.'s brother testified that they were unaware that K.C. and C.R. had left the house. Kelly and J.C. said that they went to bed after 1:00 a.m. and heard a radio playing and two young women talking in K.C.'s room.
16K.C. left D.B.'s with her brother and Kelly. They went into town to get gas and then returned home. Her grandparents were up. K.C. did not tell them what had happened overnight, but said simply that she and C.R. had gotten up early because C.R. had to be somewhere else that day. K.C. also told her grandparents that C.R. would be by later to pick up her stuff.
17Later that day, while going to the bathroom, K.C. noticed a three inch spot of blood on her underwear. She testified that she washed her underwear with detergent and bleach to clean it and to "get out all traces of him". K.C. did not save the underwear with the result that it was not available for forensic testing.
18After K.C. left the D.B. residence on the morning of October 28, C.R. told D.B. what had happened. She was crying and shaken when she talked to him. The day after the assault, K.C. testified that she became concerned because she had told the assailant that her last name was N. and that she lived on Willow Beach. She had a friend with that name, J.N., who lived on that street. She therefore decided to tell her friend what had happened to her and C.R., which she did on the following Monday, October 30, 1995.
19The same day D.B. and J.N. spoke on the telephone about what they each had learned from K.C. and C.R. Based on the description they had been given of the assailant, they concluded that the appellant was the person responsible. They knew the appellant was the uncle of Chris Holden Jr. and that he was residing at Chris Holden Jr.'s home. They decided to confront the appellant that evening.
20When they went to confront the appellant, he opened the door to the residence and J.N. asked him where he was on Friday night. She further confronted him with an accusation alleging abduction and sexual assault. He indicated that he had been at the residence all night and that he did not know what they were talking about. J.N. then asked to speak to Chris Holden Jr. and again asked the appellant where he was on Friday night to which he responded "I was here." She also asked him if he remembered two girls walking down the highway late at night at approximately 1:40 a.m. He looked at her as if she were crazy and said "I was here." She also asked him if the name "N." rang a bell, the name K.C. had given to her assailant, to which he responded"No, I only know a little kid named N." J.N. also accused the appellant of raping two of her friends.
21Over the next couple of days, D.B. and J.N. had frequent conversations with C.R. and K.C. about reporting the matter to the police. D.B. and J.N. told the complainants about their confrontation with the appellant and that they believed that the appellant matched the description of the assailant. D.B. testified that the four of them (K.C., C.R., D.B. and J.N.) had talked so much he could probably have written a book about it. He further testified that he recalled K.C. bringing up the possibility of reporting the matter through Crime Stoppers and perhaps receiving money for the tip. Both C.R. and K.C. denied raising the issue of getting money by reporting the matter through Crime Stoppers and explained that they only discussed going to Crime Stoppers because it was anonymous.
22On November 2, 1995, six days after the alleged assault, the complainants, together with D.B. and J.N., told Mr. Usher, a guidance counsellor at their high school, what had happened. Mr. Usher testified that K.C. was most distressed. He contacted the local Amherstburg Police Department and P.C. Smith interviewed the complainants. Ultimately, because of jurisdictional concerns, the matter was transferred to the O.P.P. in Malden. P.C. Wollison was the first officer to investigate the matter for the O.P.P.
23On November 2, 1995, prior to taking statements from the complainants, P.C. Wollison took both complainants in his cruiser in an attempt to find the properties where they had been taken. He testified that they guided him by telling him when and where to turn, although P.C. Wollison could not recall who told him what. First, they led him to the house where the assault was alleged to have taken place. When he turned into the driveway he testified that the girls said: "That's the house", and started crying. It was the home out of which the appellant was moving. After locating that property, they then attempted to find the home where the complainants said they were released. They took him to the farmhouse. Neither complainant told P.C. Wollison that in fact they had been taken to this house first. After identifying these places, K.C. and C.R. were asked to draw sketches of the room where the assault took place, which they each did independently of the other. Separate statements were then taken from them.
24The police executed a search warrant at the white house and attempted to find evidence linking the complainants to the residence and the appellant to the assault. This included a search of the appellant's garbage in an attempt to find the handcuffs, towel, pouch or condom. No incriminating evidence was found. It was later discovered that the side door of the white house through which K.C. testified C.R. and the assailant had entered the house, was nailed and painted shut and had not been opened in years. K.C. identified a photograph of a bedroom in the white house as the room where the assault took place.
25The appellant was arrested on November 3, 1995. He had been told by friends that the police were looking for him and he voluntarily attended at the police station. He testified that he thought that the police wanted to speak to him about an injured deer which he had shot a couple of weeks prior. Upon arrival at the police station, he was arrested for the abduction and sexual assault. Without having consulted counsel, he voluntarily gave a statement to the police, that was not tendered by the Crown at his trial. The appellant also consented to a search of his vehicle, a 1976 Chrysler New Yorker.
26P.C. Hall testified that on November 3, 1995, he examined the house where the alleged assault took place. He examined for fingerprints the light switch that K.C. testified she had touched to turn on the light on the night of the assault. He testified that the prints on the plate were too degraded or smudged to render a suitable comparison. P.C. Hall also testified that he was not asked to examine any other parts of the house, and further, that he made a decision not to examine the appellant's vehicle for prints because of the time that had elapsed between the commission of the alleged offences and their disclosure. P.C. Hall testified that he made no efforts to collect hair samples from the car or the residence to make DNA comparisons with samples from the complainants. There was no fingerprint, foot impression, tire impression, or DNA evidence linking the appellant to the offences or the complainants to the farmhouse, the white house or the appellant's car.
27Dr. Brigitte Ala was called by the Crown to give expert opinion evidence concerning her gynecological examination of K.C. She examined the complainant on December 14, 1995 and noted that there was no evidence of trauma or scarring in the vaginal area including the hymen. Dr. Ala opined that she would not necessarily expect to see any signs of acute trauma in the area unless forced intercourse had caused a permanent change or left a scar. Ultimately she concluded that there "was no positive evidence" found during her examination of the complainant to support her claim that she had been sexually assaulted. She also noted that studies suggest that there "is at least a 20 [per cent] to 25 [per cent] rate of normal exam" in cases of forced sexual intercourse with a virgin.
Law
28Section 686(1)(a)(i), (ii) and (iii) of the Criminal Code, R.S.C. 1985, c. C-46 provides as follows:
686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice.
29In R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) Doherty J.A. said at p. 539 O.R., p. 219 C.C.C.:
While s. 686(1)(a) provides three distinct bases upon which this court may quash a conviction, each shares the same underlying rationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686(1)(a)(i) is concerned with the most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could have returned on the evidence adduced at trial.
At p. 540 O.R., p. 220 C.C.C., Doherty J.A. continued as follows:
In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i) this court must conduct its own, albeit limited, review of the evidence adduced at trial: R. v. Burns, supra, at pp. 662-63 S.C.R., pp. 198-99 [1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193] This court's authority to declare a conviction unreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in the proceedings below. The verdict is the error where s. 686(1)(a)(i) is properly invoked. A misapprehension of the evidence does not render a verdict unreasonable. Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable.
30The concern in the instant case is whether the verdicts reached are "unreasonable" within the meaning of s. 686(1)(a) (i). In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1, the Supreme Court of Canada reviewed the function of an appellate court in determining whether or not a verdict is "unreasonable" within the meaning of that section. After dealing with an appeal from a verdict of a judge alone, Arbour J., speaking for the court said at paras. 38 through 42 [pp. 407-11 S.C.R.]:
The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the alleged unreasonableness of a verdict reached by a jury. If there are no errors in the charge, as must be assumed, there is no way of determining the basis upon which the jury reached its conclusion. But this does not dispense the reviewing court from the need to articulate the basis upon which it finds that the conclusion reached by the jury was unreasonable. It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. This "lurking doubt" may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doub t or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner. In that case, the court of appeal must proceed further with its analysis.
When a jury which was admittedly properly instructed returns what the appeal court perceives to be an unreasonable conviction, the only rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty verdict, was not acting judicially. This conclusion does not imply an impeachment of the integrity of the jury. It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment. Such error would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury. Judicial appreciation of the evidence is governed by rules that dictate the required content of the charge to the jury. These rules are sometimes expressed in terms of warnings, mandatory or discretionary sets of instructions by which a trial judge will convey the product of accumulated judicial experience to the jury, who, by definition, is new to the exercise. For instance, a judge may need to warn the jury about the frailties of eyewitness identification evidence. Similarly, years of judicial experience has revealed the possible need for special caution in evaluating the evidence of certain witnesses, such as accomplices, who may, to the uninitiated, seem particularly knowledgeable and therefore credible. Finally, judicial warnings may be required when the jury has heard about the criminal record of the accused, or about similar fact evidence. But these rules of caution cannot be exhaustive, they cannot capture every situation, and cannot be formulated in every case as a requirement of the charge. Rather, after the jury has been adequately charged as to the applicable law, and warned, if necessary, about drawing possibly unwarranted conclusions, it remains that in some cases, the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced.
When an appellate court arrives at that conclusion, it does not act as a "thirteenth juror", nor is it "usurping the function of the jury". In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction.
It is not particularly significant to describe this judicial oversight as either objective or subjective. It is exercised by an appeal court and therefore it will invariably draw on a collection of judicial experiences. Because of its judicial character, and because it purports to identify features of a case that will give experienced jurists cause for concern, it is imperative that the reviewing court articulate as precisely as possible what features of the case suggest that the verdict reached by the jury was unreasonable, despite the fact that it was not tainted by any erroneous instructions as to the applicable law. In some cases, the articulation of the grounds upon which an appellate court concludes that a conviction was unreasonable may elucidate previously unidentified dangers in evidence and give rise to additional warnings to the jury in subsequent cases. Most of the time, it will simply point to a case that presented itself with several causes for concern, none of which, in isolation, might have required that the jury be warned in any particular way. There are many illustrations from the case law of verdicts having been found unreasonable essentially on the strength of accumulated judicial experience. Concerns about various aspects of the frailty of identification evidence have been a recurrent basis, by itself or together with other considerations, for overturning verdicts as unreasonable. See, e.g., Burke, supra: Reitsma, supra; R. v. Keeper (1993), 1993 15078 (MB CA), 88 Man. R. (2d) 156 (C.A.); R. v. Malcolm (1993), 1993 3425 (ON CA), 81 C.C.C. (3d) 196 (Ont. C.A.); R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.); R. v. D. (N.), [1993] O.J. No. 2139 (QL) (C.A.) [summarized 20 W.C.B. (2d) 609]. Judicial experience has also been relied upon to question the reasonableness of verdicts in cases of sexual misconduct presenting troubling features such as allegations of sexual touching of a bizarre nature (see, e.g., Burke, sup ra: R. v. V. (C.), [1993] O.J. No. 1512 (QL) (C.A.) [summarized 20 W.C.B. (2d) 228]; R. v. L. (J.H.H.P.) (1992), 1992 12805 (MB CA), 75 C.C.C. (3d) 165 (Man. C.A.)), or the possibility of collusion between witnesses (see, e.g., Burke, supra). Finally, the experience of the courts has occasionally been brought to bear, although not always explicitly, on the assessment of verdicts rejecting a defence with respect to which there may be unjustified skepticism or even prejudice because those relying on such justifications or excuses may be viewed as simply trying to avoid responsibility for their actions. See, e.g., R. v. Vaillancourt (1999), 1999 13677 (QC CA), 136 C.C.C. (3d) 530 (Que. C.A.); Molodowic, supra.
It follows from the above that the test in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence. To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and as precisely as possible the ground for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence. Particularly since this amounts to a question of law that may give rise to an appeal, either as of right or by leave, the judicial process requires clarity and transparency as well as accessibility to the legal reasoning of the court of appeal. When there is a dissent in the court of appeal on the issue of the reasonableness of the verdict, both the spirit and the letter of s. 677 of the Criminal Code should be complied with. This Court should be supplied with the grounds upon which the verdict was found to be, or not to be, unreasonable.
31As is clear from the above passage, the question to be asked when determining whether a verdict is unreasonable or unsupported by the evidence is whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. This appellate function requires that this question be asked through the lens of experienced jurists and it requires that the conclusion reached not conflict with the bulk of judicial experience. It is imperative that the court of appeal articulate the basis upon which it concluded that the jury reached an unreasonable verdict; it is insufficient for the court to simply express that there is a "lurking doubt". While vague unease or a lingering doubt may be a signal that the verdict was reached in a non-judicial manner, the court must proceed with an analysis of the evidence to justify interfering with the conviction.
32It is also worth noting from this passage that of the problem areas specified by Arbour J. in paras. 39 and 41 of her reasons, several are of concern in this case, namely: eyewitness identification, sexual misconduct and collusion among witnesses. As Arbour J. stated, concerns about the frailty of identification evidence have been a recurrent basis for overturning verdicts as unreasonable.
33Doherty J.A., in R. v. Biddle (1993), 1993 8506 (ON CA), 14 O.R. (3d) 756, 84 C.C.C. (3d) 430 (C.A.), likewise commented on the frequency with which eyewitness evidence was the basis of an appeal under s. 686(1)(a)(i) at pp. 759-60 O.R., pp. 434-35 C.C.C.:
Section 686(1)(a)(i) is often invoked in cases which turn on eyewitness identification . . . This is particularly so where the potential probative force of the identification evidence is undermined by improper identification procedures. Resort to the jurisdiction bestowed on this court by s. 686(1)(a)(i) in identification cases is a response to the well-recognized danger inherent in convictions based on eyewitness evidence. Furthermore, the assessment of the probative force of eyewitness evidence does not often turn on credibility assessments, but rather on considerations of the totality of the circumstances pertinent to that identification. As such, a verdict based on honest but potentially mistaken eyewitness identification is well suited to appellate review under s. 686(1)(a)(i).
(Citations omitted)
It is to the concerns over frailty of identification evidence in this case that I now turn.
Review of Evidence
(1) Identification
34As this was a trial by jury, the reasons in Biniaris apply directly. One must begin, therefore, with a review of the evidence and, in particular, of the areas perhaps most susceptible to error. In this case, eyewitness identification is of prime concern as it is the only evidence linking the appellant to the offences alleged. An examination of the evidence reveals inaccurate and conflicting descriptions, contamination and errors in investigative procedures.
35As to physical identification of the appellant as the perpetrator by the complainants, during K.C.'s evidence in- chief, she gave the following description: "fat; not very tall; stubble growth; mole on his left cheek about a half-inch or so; round face; balding with short brownish hair; wearing glasses".
36At the trial, K.C. identified the appellant as the assailant. She testified that she had never met him before. She also testified that the assailant was the same person who had first stopped in the pick-up truck.
37During her first statement to the police on November 2, 1995, K.C. described the attacker as follows: "kind of fat, white male in his late 30s or 40s about 5'5?, brown hair, balding at the front; round face, unshaven with a mole about the size of a loonie on his left cheek". She did not mention that the assailant was wearing glasses. The appellant did have a distinctive mole on his cheek and otherwise generally matched the description.
38J.N. testified that when K.C. told her about the assault (on the Monday, three days after the alleged offences) she described her assailant as "5'8?, overweight, mole on his left cheek, round head". K.C. did not mention big glasses, short brownish hair, stubble growth or balding. J.N. testified in cross-examination that she never wrote down the description until she wrote out her police statement (i.e. after she and D.B. had confronted the appellant) and that by that time she had received information from C.R., K.C. and D.B. concerning the identity of the assailant.
39C.R. described the attacker as follows: "white male, a little overweight, dark thinning hair, round face, glasses and unshaven, wearing a white t-shirt and work style pants; 5'7?; late 30s or early 40s". C.R. did not describe her abductor as having a mole. At trial, she identified the appellant as her abductor.
40When the matter was first reported to the police on November 2, 1995, C.R. described her attacker as follows: "late 30s, wearing a light t-shirt and darker (blue or green) pants with dark brown or black hair with gray mixed in. He wore glasses and his hair was thinning all over". Later that day, she described her attacker as follows: "late 30s, 40s, overweight, glasses, thinning dark hair streaked with gray". When providing her description to P.C. Smith, she did not say anything about the attacker having a round face, being unshaven or having a mole. In cross-examination, C.R. also confirmed that she had always testified that the assailant had greying hair or hair that was "streaked with gray". However, she conceded that during her evidence in-chief she left out this feature. The appellant never had greying hair, nor was it "streaked gray". C.R. also agreed that when providing her description to P.C. Smith she told him nothing distinctly stood out in the assailant's appearance. As noted, the appellant had a distinct mole on his left cheek.
41D.B. testified that when C.R. told him what happened the morning after the alleged assault she described the assailant as follows: "short, fat and balding with a mole on his left cheek". C.R. denied ever describing the assailant as having a mole on his cheek and disagreed that she told D.B. this.
(2) The photo lineup
42The photo lineup was carried out on November 12, 1995, over two weeks after the alleged offences. Instead of presenting a single sheet with photos of all of the members of the lineup on it, the complainants were each separately presented with a sequential array of 16 separate photographs. When the array was prepared it was not known to the O.P.P. that K.C. was of the view that her assailant had a significant mole on his face. A photograph of the appellant was in the array. It was the only photograph of a person with a mole. In addition, after tentatively identifying the fifth photograph as a photograph of the appellant, K.C. was permitted to look at all the other photographs.
43As to the fifth photograph, K.C. testified at trial that she said: "It looked like him . . . I'm pretty sure this is him." In cross-examination, she acknowledged that when she said "pretty sure" it meant that she could not be positive. P.C. Wollison testified that upon seeing the appellant's photo, K.C. said she "was pretty sure" it was him but that she felt her assailant's beard was wider and partly covered his mole.
44On November 12, 1995, C.R. was also shown a series of photographs by the police. She picked out a photograph of the appellant as being the person who abducted them. In cross- examination, she testified that the mole on the appellant's cheek as contained in the photograph played no part whatsoever in her identification of the appellant. When confronted with P.C. Wollison's evidence that when C.R. picked out the appellant's photograph she said: "same mole, same hair", C.R. suggested that Wollison must be mistaken because she was "absolutely positive" that she had never said that to Wollison. She also denied that J.N., D.B. or K.C. had told her prior to the November 12, 1995 line-up that the appellant had a mole.
45According to P.C. Hall, a complainant should be instructed not to look at all the photos, but to stop if and when the perpetrator is identified. In this way, a witness does not get the opportunity to compare photos and, according to P.C. Hall, a fairer identification process results.
46At the time of preparing the array, P.C. Hall was not aware that either of the complainants had described their assailant as having a mole. Of the 16 photographs chosen for the photographic line-up, the appellant's photograph was the only one with that distinguishing characteristic. According to P.C. Hall, this would not be significant if the procedure applicable to sequential arrays had been followed by the police. However, P.C. Hall agreed that if the array was shown to the complainants as described by Officer Wollison and the complainants, the fact that the appellant was the only one in the array with a mole was more significant. There was a greater chance that there would be a misidentification and that the identification procedure would be tainted.
47P.C. Wollison, who assisted the complainants in their viewing of the photographic line-up, conceded that the appellant was the only one in the array of 16 photographs that had a mole on his face. He also conceded that if the complainants were focused on finding someone who had a mole, showing them the array of photographs that was shown was no different than showing them just the appellant's photograph.
48Between the time of the appellant's arrest and the photographic line-up being conducted, various newspaper articles had been printed in the local paper detailing the appellant's arrest. Additionally, K.C.'s family had gone to the appellant's arraignment and the two complainants had been told that the appellant had been arrested. By the time of the identification of the appellant by the complainants at the second trial, the appellant's photograph had been printed on the front page of the local newspaper during the first trial.
49Assuming that the complainants were abducted and assaulted as alleged, all of these matters, large and small, go to undermine the reliability of the identification of the appellant as the person who perpetrated the offences.
50It seems clear that the trial judge was alive to and was concerned about the conflicting and contradictory identification evidence and the flawed investigative procedures. In his charge he said:
I want to deal, briefly, with identification evidence because, clearly, that's at the very heart of this trial. The case against the accused depends in large part on the correctness of his identification by the complainants. I must, therefore, warn you that there is a very special need for caution before convicting in reliance on the correctness of identification. The reason for the need for caution is that all identification evidence suffers from an inherent frailty. Human observation and recollections are notoriously unreliable, unreliable in this area. It may well be that some among you, many of you perhaps have had the embarrassing experience of at some time going up to someone or speaking to someone and finding it was not the person that you believed it to be. I say to you that most miscarriages of justice have been due to mistaken identity. You may have no doubt but that the witnesses are convinced in their own minds that they have identified the right man. And you may find that evidence convincing. But convincing witnesses though perfectly honest may also be mistaken. And several such witnesses may be mistaken.
An identification by one witness can constitute support for the identification by another. But I warn you that even a number of honest witnesses can be mistaken. You must, therefore, examine closely the circumstances in which the identification was made in this case. And I want to review at least in part some of that evidence.
Now both witnesses say that in fact they really couldn't tell much at the road and they didn't look much at the driver of the truck or the car. But both said that they had a full clear opportunity at the white house to see the accused. K. C., as she said these terrible things were being done to her. C.R., as she watched except for the period of time when she closed her eyes. They say they had a good opportunity to see. And yet, you will have to examine what it was that was their recollection immediately following on the events, how they described who they said was the accused, how that identification was modified as they then talked with their friends. How, if at all, it was changed as they proceeded through giving statements, preliminaries, another trial and now this trial. And you will want to concern yourself with that photo identification line up. I've told you and Constable Hall has confirmed for you that care must be taken to assure that a suspect ought not to be conspicuously different from others in a line up. And if in fact that did not take place, my words not his, there would be a defect in that line up.
You've heard that the preferred process would be to have one photograph after another of individuals who have common descriptors. You've heard that but one individual had a mole. You heard that in fact you ought not to have the opportunity to go through the whole group and come back. And yet, you heard that K.C. did precisely that. And I say to you that even though you're entitled to accept and be satisfied and it will be your decision not mine that the identification arising out of that photo line up and the identification of I think Exhibit 9 as being the accused is and satisfies you beyond a reasonable doubt as to the identification here. I say to you remember the frailty of identification. Remember that an added frailty is added when there is a defect in the line-up. And if there is an element of unfairness, you must bear that in mind when determining whether you are satisfied that the identification made in that manner can be relied upon by yourself.
51The trial judge went on to deal with some specific items but never enumerated the very substantial number of conflicts between the testimony of the complainants, the changes and additions they made over time and the unexplained matters in their evidence which cumulatively should have given rise to some concern.
52In her argument, counsel for the appellant did not dwell on the fact that the person who allegedly abducted the complainants was the same person who had earlier approached them, driving a pick-up truck. This person more or less identified himself as one of the Holdens on both occasions, a very odd thing to do if in fact he was the assailant and if in fact there was an abduction and an assault.
(3) Contamination of testimony
53Although the complainants testified that before reaching D.B.'s they agreed that they would not tell anyone what had happened, as soon as K.C. left D.B.'s, C.R. told D.B. what had happened. Then K.C. told J.N. By Monday, October 30, the four of them, K.C., C.R., D.B. and J.N. were engaged in discussion amongst themselves of the alleged events of October 28.
54D.B. and C.R. also had further conversation on Sunday, October 29. D.B. and J.N. then exchanged information on Monday, October 30, first by telephone and then at D.B.'s home. According to D.B., he made notes of what was discussed on that day. D.B. and J.N. decided that they knew who K.C.'s assailant was and they went and confronted him at the appellant's brother's home. D.B. said he went up there to see what the assailant looked like.
55D.B. also said he had lots of conversation"hours and hours" of it with K.C. and C.R. following that confrontation, although when asked the direct question whether he "provided either one of them with the description of what you saw that night" he simply said "No".
56Further discussion occurred amongst all four, K.C., C.R., D.B. and J.N. when they met with the guidance counsellor at their school on November 2. On that occasion, according to D.B., he did most of the talking. From there they went to the police station and eventually, on November 6, he and J.N., sitting in the same room, wrote out statements. In all of these circumstances, the possibility of contamination of the evidence of all four, K.C., C.R., D.B. and J.N., is very strong.
57K.C. and C.R. acknowledged that prior to going to the police on November 2, 1995, they had talked with J.N. and D.B. over the course of three days for "hours and hours" about what had happened during their confrontation with the appellant. J.N. and D.B. had also told K.C. that they had obtained a good look at the appellant and that they thought he was the assailant right away because of her description.
58The trial judge had some concern about collusion between K.C. and C.R. and amongst K.C., C.R., D.B. and J.N., but quite apart from deliberate comparison of their accounts, the risk of unintentional contamination was very, very high. Because of the confrontation of the appellant by D.B. and J.N. and their subsequent discussions with K.C. and C.R., this is particularly so as to identification. No real warning or instruction, however, was given to the jury in this regard.
59In the course of dealing with identification generally, the trial judge commented as follows:
The defence asks you to consider carefully the unreliability of the identification evidence which I have now gone over with you and asks you to remember that the identification does not come blurted out immediately and soon after these events but comes out over a long period of time continuing up to and including January of 1997. And that at best it's tainted because it comes after conversation hours of conversation among friends as to what went on, who said what, who saw what. And may well be collaborative at worst but certainly tainted at best and is a construction of information coming after consultation among at least 4 of the Crown witnesses. And, therefore, has a great danger of contamination.
60Having regard to the opportunity for comparison, collaboration and above all, unintentional contamination of testimony among K.C., C.R., D.B. and J.N., a much stronger warning was called for.
(4) Identification of the car involved
61In her testimony in-chief, when shown a photograph of the appellant's 1976 Chrysler New Yorker, K.C. testified that it was the same car driven by her assailant. She testified that she recognized it as being the same vehicle because of the way the front end of the car came to a point and obstructed the licence plate and because of the colour of the vehicle. When shown a photograph of the inside passenger's door of the same vehicle, she also testified that it "looked like" the car they were in. At the appellant's preliminary hearing, however, she had testified that a second photograph of the appellant's car, which showed a rear view of the vehicle "looked like" the vehicle the assailant drove but was not the "same car". Before identifying the appellant's vehicle as being the same as her abductor's, K.C. and her father had seen the appellant's vehicle in his driveway on occasions when they drove past his home.
62The "pointed" front end of the appellant's Chrysler fitted the description of the assailant's car provided by K.C. at trial. However, the first time that K.C. made mention of the front end of the car being pointed was on September 19, 1996, when she was being prepared for the appellant's first trial. She had met with the police and the Crown for the express purpose of addressing her inability to identify the appellant's vehicle. Prior to that time, including under oath at the preliminary hearing, when shown a photograph of the appellant's car she was not able to confirm that it was the same car used by her assailant. When confronted with her inability to identify the vehicle during the meeting, she then alleged for the first time that it was in fact the same vehicle because she remembered that the front end of the assailant's car was the same as the one in the photograph. This distinguishing characteristic, which allowed her to identify the vehicle had not been mentioned in her earlier police statement, her disclosure to her friends, nor under oath at the preliminary hearing. When confronted in cross-examination and asked why she had not previously mentioned it, she simply said: "I don't know."
63During her evidence in-chief, K.C. described the car as a "brownish red colour", that it was a big car, older model, very boxy. She acknowledged that in previous statements she had described the vehicle as brown. The seats were pale beige or an off-white colour that were imitation leather. The seat was a bench seat that fitted right across the car. K.C. never suggested that the abductor's vehicle had a white top. The appellant's vehicle was maroon with a very distinctive white top and the front seat had white leather bucket seats.
64K.C. also testified that the speedometer in the assailant's car was unique in appearance. It went up to 30 or 40 kph in a vertical line and then went across horizontally at a right angle for the remaining measurements of speed. However, in cross-examination she confirmed that she did not mention the distinctive speedometer when she first met with the police on November 2, 1995 and, in fact, did not mention it until January 20, 1996. P.C. Wollison confirmed that the speedometer in the appellant's Chrysler was similar to the sketch prepared by K.C. He knew this because when K.C. disclosed this "new" information to him, he went out to the Holden property and used his flashlight to look in the vehicle and observe the speedometer. Wollison acknowledged that it would have been easy for anyone else to do the same.
65C.R. testified that the assailant's car was boxy and not "very aerodynamic". It was light coloured with a bench style front seat that was a "light yellowy brown". When shown a photograph of the front seat of the appellant's vehicle, she testified that it did not look like the abductor's vehicle and that "the interior and the seat of [the appellant's Chrysler was] totally different from the vehicle" in which they had been abducted. When shown photographs of another vehicle, a Buick belonging to Brad Cadarette -- an "alternative suspect", she testified that his vehicle more closely resembled the vehicle driven by the assailant. Cadarette's car had a bench style front seat. The appellant's car had bucket seats.
66The trial judge was aware of the conflicts and inconsistencies in the complainants' testimony respecting the car alleged to have been involved. In his charge he said:
The defence asks you to recognize that there is evidence in this trial that in fact these girls went back and forth in front of that home and had the opportunity to see the car and had opportunity to see the truck. And that the lack of specifics in the early hours and days may well have much to do with the specifics in effect being gleaned as they passed back and forth by the home. . . . . .
You are asked to consider by the defence that the early descriptions of the car as well or perhaps better fit the Buick of Brad Cadarette than do they the Chrysler. And, as a consequence, may go well along the road in demonstrating that this is not the right car and not the right accused as opposed to in effect allowing the inference that it is.
67The evidence of the complainants was contradictory. K.C. said that the appellant's New Yorker was more like the car involved and C.R. said that Cadarette's Buick had the stronger resemblance. Both said that [the] front seat of the car involved was a bench seat. These contradictions should have been brought more forcibly to the attention of the jury.
(5) Timing
68The appellant's position was that the events alleged must have been concocted because they could not have occurred within the period of time testified to by the complainants. Briefly, K.C. and C.R. said they left K.C.'s home at 1:30 a.m. and arrived at D.B.'s home at 3:00 a.m., an hour-and-a-half later. Using the shortest possible time periods as testified to by the complainants and by the police, if the events occurred as the complainants alleged, they could not have arrived at D.B.'s home until 4:00 a.m.
69K.C. testified in chief that it was her best estimate that she and C.R. left the family home between 12:30 a.m. and 1:00 a.m. However, in cross-examination, she acknowledged that on November 2, 1995, when giving a statement to the police, she indicated that her brother had not come home until 12:30 a.m. and she and C.R. had remained at the home for a period of time before leaving. In cross-examination, when pressed, she acknowledged that after her brother arrived home, he and his friend ordered a pizza which did not arrive until approximately 1:00 a.m. and that, in fact, she and C.R. probably did not leave the house until 1:30 a.m. K.C. also accepted that on November 2, 1995, she told the police that she was certain that she did not leave the house until 1:30 a.m.
70In her testimony in-chief, C.R. testified that they left the home at approximately 12:30 a.m. However, when confronted with earlier statements reduced to writing, she confirmed that during her first interview with the police she indicated that they left the house at 1:30 a.m. She ultimately adopted her earlier statement and evidence that the best estimate as to when they left was 1:30 a.m.
71After leaving the house, K.C. estimated that she and C.R. walked for approximately one hour before being abducted at approximately 2:30 a.m. C.R. testified that they had been walking for approximately one hour and 10 minutes before being abducted, although in re-examination, she testified that approximately one hour could be anywhere from 45 minutes to an hour. From the point of abduction, they drove to the farmhouse, which takes approximately three minutes to drive (arriving at 2:33 a.m.), according to police evidence. They were at that house for approximately five minutes before driving to the white house (2:38 a.m.). It takes 12 minutes to drive from the farmhouse to the white house, according to the evidence of the police. Therefore, they would have arrived at the white house at approximately 2:50 a.m. K.C. further testified that they were at the white house (where the assault took place) for approximately one half hour to an hour (until 3:20 a.m. or 3:50 a.m.); C.R. testified that they were there for approximately 20 minutes before driving back to [the] farmhouse which was 12 minutes away (arriving between 3:22 and 3:32 a.m.). K.C. also confirmed that they waited at the farmhouse for approximately ten minutes (3:32 and 3:42 a.m.) before walking to D.B.'s home, which takes approximately another 27 minutes (3:59 and 4:09 a.m.), again according to the evidence of the police. Therefore, if K.C. and C.R.'s stories as to what happened were accurate, they would not have arrived at D.B.'s until either shortly before or shortly after a television program, Mama's Family, had started, which was 4:00 a.m. However, K.C. and C.R. both testified that they had in fact arrived at D.B.'s approximately one hour before Mama's Family started.
72The timing evidence is summarized in a schedule in the appellant's factum which is an appendix to these reasons.
73Beyond the evidence of the complainants that they were not wearing watches and did not keep track of times or distances, there was no explanation of the timing anomaly. As noted earlier, this was the second trial on these charges; timing was an issue in the first trial as well.
74Much time was spent in cross-examination and in counsel's closing address directing the jury's attention to this issue. The trial judge recognized the importance of the timing issue to the defence, when he commented, in refusing the Corbett application:
Clearly, the complainants have been faced in cross- examination with the position that in fact these events could not have taken place as described given the time line that in fact surrounds at least some of the evidence which has been brought out.
This statement was made in the absence of the jury. The trial judge, however, never put this important aspect of the defence case to the jury nor did he outline the evidence that supported this defence position except in the most general way. The jury was left to piece together the evidence. Although counsel for the accused certainly highlighted this evidence"[c]ounsel's closing cannot relieve the trial judge of his obligation to ensure that the jury understands the significance of the evidence to the issues in the case." See: R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.) per Doherty J.A. at p. 387 O.R., p. 556 C.C.C. Given the importance of the issue, it was incumbent upon the trial judge to instruct the jury that if they accepted the evidence concerning the timing of events or had a reasonable doubt about the issue, they were required to acquit the appellant.
75In this regard, it should be noted that the trial judge, at the instance of defence counsel, instructed the jury against the taking of notes. The views of bench and bar in this regard are not unanimous. In this case, however, one of the matters to be resolved was the question of timing and in the circumstances it might have been easier for the jury to carry out its duty in this respect had they been able to take notes. In the absence of notes, there was a positive duty on the part of the trial judge to raise this issue, to summarize the evidence relevant to it and to instruct the jury in that regard. That duty was not fulfilled.
(6) Failure to deal with a question from the jury
76Related to the issue of timing is the trial judge's response to a question from the jury. The trial began on February 2, 1998 and after hearing 20 witnesses over eight days of trial, the jury began its deliberations on Friday February 20, 1998 at 1:35 p.m. At 3:00 p.m. the jury made the following request:
We would like the testimony of the two girls, K.C. and C.R.. We would like the testimony of K.C.'s brother. We would like the testimony of Jodie Scaife. And we would like the testimony of Chris Holden, Jr.
77Jodie Scaife was at the home of Chris Holden Sr. the night of the alleged offences. She had earlier driven her son and Chris Holden Sr.'s son, Justin, and daughter, Heather, to the Hallowe'en party at the school. Later she picked them up and returned to the home of Chris Holden Sr. where she stopped for some time to watch movies.
78The proceedings in the courtroom were not recorded by a court reporter. Instead the courtroom was equipped with a monitored audio recording system. The trial judge consulted with the monitor and advised counsel that what had been requested would take eight-and-one-half to nine hours to play. He advised counsel that he proposed to tell the jury that and ask them to go back and perhaps be more particular. The Crown suggested in the alternative that the trial judge could read from his notes. The trial judge indicated that he would prefer that the jury deal with the actual record rather than with his notes. Defence counsel agreed with the trial judge. The jury was then recalled and the trial judge advised them as follows:
. . . I want to tell you that we do not maintain a written Record of the testimony of these witnesses as they give it. What we have is a recording. I've asked the court clerk to provide me with a summary of the time that we would require to replay the evidence of these witnesses. The witness K.C., it would take us 4 hours and 12 minutes of listening time in order to have that evidence replayed because it would be required and I would be required to replay for you the evidence in-chief and the cross-examination so that you had the entirety of the evidence available. C.R. would take us 2 hours and 58 minutes. J.C. . . . would probably take us something in the order of 40 to 50 minutes. . . . Jodie Scaife would take us 30 minutes. And the testimony of Chris Holden Jr., something in the order of 33 minutes. We're looking at 8 and a half to 9 hours worth of listening time.
Now, I am certainly not sitting here and telling you that you may not have it. But, I have to assure myself that if in fact we start upon replaying the evidence that I give you all of the evidence. It would be unfair and improper if I in fact gave you only part of the evidence . . . .
What I'm going to ask you to do is to consider whether or not there are certain specific parts of those various persons' evidence that you're concerned with that we could identify so that in fact we could isolate them, those parts wherever they were found in examination-in-chief and collaterally in cross- examination and whether we could then lift those or at least identify them so that we could specifically and directly to the area which you have some concern. That might well cut down dramatically in the amount of time that would have to be spent reviewing the evidence per se.
This has been a long trial and it's gone over a long time but I can fully appreciate why it is that you would have some concern about rehearing the evidence. But I want you to understand what it is you're committing yourself to in advance if we're going to do that and the kind of timeframe that you're going to involve yourselves in. I wonder, given that knowledge whether I could ask you to retire to reconsider whether or not there's another approach that you can make to this particular evidence or portions thereof and I'll be happy to receive your further request for assistance. You may retire.
79The jury retired again and nothing further was heard from them until they returned at 8:00 p.m. with a question respecting unanimity. That question was answered and they returned at 9:00 p.m. with their verdict.
80The trial judge's response to the jury's request for evidence amounted to no assistance at all. The credibility of the complainants was the central issue at the appellant's trial. Having sat through the trial, the jury would have been aware that the evidence they wanted to hear was time consuming. However, they were obviously troubled and sought the assistance of the trial judge. The trial judge's comments dissuaded the jury from having their question answered, as evidenced by the fact that the request was not later made more specific. As this court recently noted in R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.) per Labrosse J.A. at p. 645 O.R., p. 151 C.C.C.:
the trial judge should have ensured that the jury's concerns were met and that it received the assistance it required. In effect, the jury received no assistance from the trial judge with respect to its request.
See also: R. v. Kiyoshk (1999), 1999 2782 (ON CA), 133 C.C.C. (3d) 478 (Ont. C.A.).
81The fact that the defence counsel agreed with the course taken by the trial judge, both before it was taken and after, does not remove the responsibility of this court to review the matter.
82One further aspect may be relevant. Before giving his charge the trial judge said:
THE COURT: Counsel, before recalling the jury, I just want to indicate to you that juror number 7 brought to my attention again this morning out of concern that I might have forgotten that he has a holiday scheduled to start tomorrow morning at 10:00 o'clock. I advised him that I was not forgetting that and that the jury would be receiving the case to deal with later this day and that I expected that he would remain with the jury and deal with it and deliberate. And were we to face a problem of his having this prepaid departure tomorrow morning that I would deal with it later but he was not to concern himself with it except to understand and know that I have not forgotten it.
THE CROWN: I did locate through the assistance of one of my colleagues in the office a Court of Appeal case on the identical situation where a juror was discharged in the middle of deliberations for a holiday. If Your Honour wishes that.
THE COURT: I think I'm cognizant of that.
THE CROWN: All right. Thank you.
THE COURT: And recognize that discretionary availability to me by way of an answer. We, we long ago indicated to that juror that this would not be a problem for him and I and I don't propose to make it one. All right. Have the jury return, please.
This discussion raises the possibility that when the jury asked to have evidence read back to them, the trial judge may have felt limited in what he could do. Counsel did not raise this suggestion.
(7) Absence of any forensic evidence to support the complaints
83The details of the investigation of the allegations of the complainants are set out earlier in these reasons at paras. 24 and 26. In the circumstances, it is extraordinary that no forensic evidence whatsoever was found to establish that either complainant was ever in the motor vehicle or in either house alleged to have been involved in the offences charged.
(8) Position of the appellant
84The appellant's conduct from the time of his confrontation by D.B. and J.N. was consistent with his innocence. Robert Holden testified in his own defence. He was unmarried at the time of the trial and had two children, ages 9 and 7. He had one entry on his criminal record for fraud in 1984, for which he received a suspended sentence. He had no other criminal record. The appellant confirmed that in the spring of 1995 he had lived at the farmhouse described by the complainants. He also confirmed that Brad Cadarette had lived there for a period of time in one of the other apartments.
85The appellant also confirmed that he had lived in the white house where the complainants alleged the assault took place in October of 1995. He testified that the house was quite small. There were windows that allowed a person to look into both the living room and the bedroom from outside. The side door of the house was painted shut and the appellant had a large floor model television situated in front of the door.
86On October 27, 1995, the appellant had begun moving out of the white house although most of his belongings were still inside. He was leaving the property because of a flea problem. The appellant had borrowed his brother's pick-up truck for moving purposes. In addition to enlisting the help of his family members, Brad Cadarette assisted him with the move. The appellant had moved some small things out of the house and had stopped at approximately 4:00 p.m. after bringing the last load of the day to his brother's (Chris Holden Sr.'s) home. The appellant remained at his brother's residence throughout the evening watching movies that had been rented.
87The appellant testified that he left his brother's residence at approximately 2:20 or 2:25 a.m. on Saturday, October 28, 1995. He recalled the time because he had asked Andrea Holden, his sister-in-law, what time it was. His Chrysler New Yorker was parked at the back of the house. The appellant left in his brother's pick-up truck. As he reached the end of his brother's driveway, he depressed the brakes and the vehicle started to shake. Suspecting that there was a problem with the brakes, he returned up the driveway to his brother's home. Although the appellant knew that there was a problem with the four-wheel drive system, he did not think that the shaking was related to it. The appellant asked for the keys to his car. His brother, Chris Holden Sr. came out to look at the truck, made an adjustment and told the appellant that the truck was fine. The appellant then left the residence in the truck.
88The appellant returned to his home at approximately 2:25 a.m. The following morning, the appellant woke up at approximately 7:15 or 7:30 a.m. and went to his brother's place arriving shortly after 8:00 a.m. with another load of his belongings. He spent the rest of the day trying to straighten up the house to get ready for his children who were coming over that night.
89The appellant testified that he did not see the complainants at all that night. He specifically denied that he stopped and spoke to them while driving the pick-up truck. The appellant denied that he was in any way involved in the abduction or sexual assault of the complainants.
(9) Evidence supporting the appellant's alibi
90Ms. Andrea Holden testified that on the evening of October 27, 1995, she and her husband, Chris Holden Sr., had some friends over at their home to watch movies. Among the people present were Robert Neville, Jody Scaife, Chris Holden Jr. (their son) and the appellant. The appellant was in the process of moving out of his home and had been moving some of his belongings into the Chris Holden Sr. household earlier that day.
91The appellant stayed at the Chris Holden home until approximately 2:20 a.m. watching movies. Ms. Holden recalled specifically that the appellant asked her what time it was after one of the movies was over. She looked at the watch and told him it was 2:20 a.m. He then said that he had to get going because he had some packing to do in the morning. Ms. Holden's evidence was confirmed by Chris Holden Sr., Chris Holden Jr. and Robert Neville.
92The appellant's 1976 Chrysler New Yorker was at the Holden home all night. The appellant had borrowed his brother's pick-up truck to do the moving and had used it throughout the day. It was silver in colour and had prominent roll bars. The truck was particularly noisy because of a performance muffler that had been installed. Andrea, Chris Jr., Chris Sr. and Neville testified that they heard the appellant leave in the vehicle between 2:20 and 2:30 a.m.
93A few minutes later, they heard the appellant return. He complained that there was a problem with the truck which the appellant thought was in the brakes. The truck routinely had problems with the four-wheel drive system. If the shifter were accidentally knocked into four-wheel drive, there would be a distinct sound from the drive train that would require a manual adjustment to fix. Thinking that the truck was disabled, the appellant asked for the keys to his New Yorker, so that he could take that vehicle. Chris Sr. had planned to use the New Yorker in the morning, so rather than giving the appellant the keys to the New Yorker, Chris Sr. went out and fixed the truck by making the adjustment required. The problem was the drive train, not the brakes. The appellant then left in the truck and did not return. Chris Sr. saw the appellant leave in the truck. Andrea, Chris Jr. and Neville who heard the appellant leave in the noisy truck confirmed this. Chris Jr. was in his bedroom which was located in the upper level at the front of the house and Neville and Andrea were in the upper level at the back of the house watching the movies. Chris Sr. also testified that he had the keys to the Chrysler (there was no evidence to suggest that there was another set), and he did not give them to the appellant.
94The following morning, the Holdens used the appellant's Chrysler to do their daily errands. It was parked where it had been the night before. This was confirmed by the Holdens and by Robert Neville who stayed the night at the Holden home.
95Of the people at the Holden home when the appellant left, Jody Scaife was the only one who did not recall that the appellant ultimately left in the truck. She thought that the appellant had left the residence at approximately 1:00 a.m. with the truck and then returned shortly thereafter. She also thought that the appellant then retrieved his keys from Chris Sr. and left in his car because of the problem with the truck. At the time, she was in the upper level of the house watching movies and based her evidence on what she had heard transpire. When she left the residence, she did not recall seeing either the appellant's Chrysler or the pick-up truck in the driveway.
96It is significant that the vast bulk of the alibi evidence came from witnesses called by the Crown. Only Neville and the appellant were called by the defence.
(10) The "other suspect"
97The defence position was that the complainants' story was concocted. Its alternative position, based on the assumption that there had in fact been an abduction, was that another person, Brad Cadarette, had committed the offences. At the time of the alleged offences, Cadarette had a car that generally matched the description of the car given by the complainants. Andrea Holden testified that Cadarette owned a pair of handcuffs which he normally hung from the rearview mirror of his car. Her son, Chris Holden Jr., testified that Cadarette had lived at the farmhouse at the same time as the appellant and that Cadarette had also once lived at the white house where the appellant was residing at the time of the alleged offences.
98The appellant's brother, Chris Holden Sr., testified that he had known Brad Cadarette since he was 14 or 15 years old. He also testified that Cadarette had grey streaks in his hair and had a scruffy, unshaven look. Holden Sr. further confirmed that Cadarette used to be the landlord of the farm house. During the weekend of the appellant's move from his residence, Cadarette had been enlisted to help. Cadarette had also previously lived in the white house where the appellant lived.
99The appellant testified that he had known Brad Cadarette for approximately 30 years. He confirmed that Cadarette owned various weapons, including a shotgun and a rifle. He also testified that Cadarette would often grow a beard during the colder months of the year and would appear "scruffy".
100P.C. Beatty testified that on November 8, 1995, he had received information about a possible suspect (other than the appellant) from Chris Holden Sr. Holden Sr. had suggested that he have a look at Mr. Cadarette's vehicle. P.C. Beatty did not pursue the lead. However, on January 6, 1997, he received further information from Holden Sr. concerning Brad Cadarette, and on January 7, 1997, he decided to take some photographs of the interior of his car. The police also ultimately interviewed Mr. Cadarette. Cadarette was never charged. Neither the Crown nor the defence called him as a witness at the appellant's trial.
101The appellant went so far as to get possession of Cadarette's car, either by buying it or taking it in satisfaction of a debt, and then presented it to the police and invited them to examine it. The police took photographs of the car, but no forensic examination of the car or its contents was made. Mr. Cadarette's car is significant in that its front seat is a bench seat and both complainants said that the car used in their abduction had a bench seat. The appellant's car had bucket seats. C.R. also said that Cadarette's vehicle resembled the abductor's car more closely that the appellant's car.
102Photographs of Mr. Cadarette and his car were made exhibits at trial. Both complainants were certain that he was not the man who had abducted them. K.C. testified that it was definitely not him. Mr. Cadarette differed from the assailant because he was more slender, his face was not as round, and the features of his face were different. C.R. also testified that Brad Cadarette was not the man who abducted them. According to her, Mr. Cadarette differed from their assailant in that he was a lot thinner and had a moustache and a beard. Both complainants said that they were positive that the appellant was the man who had abducted them and assaulted K.C.
Conclusion
103The reasons in Biniaris at p. 411 S.C.R., p. 25 C.C.C. require "that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention" in cases in which the court has found, as it has here, that no properly instructed jury, acting judicially, could have convicted. In cases such as this, that articulation will frequently involve a list or a series of matters to which the individual members of the court will attribute differing degrees of significance. I would include in such a list the following:
A. Identification. K.C. did not mention glasses to the police or to J.N. She did mention glasses at trial. C.R. did mention glasses to the police but not the mole. C.R. denied having told D.B. that the abductor had a mole. C.R. said the abductor had grey streaks in his hair. The appellant had no grey streaks in his hair.
B. Identification. Conversations between and amongst K.C., C.R., D.B. and J.N. must inevitably have contaminated the evidence of all of them to one degree or another. The confrontation of the appellant by D.B. and J.N. and the subsequent conversations of the four would have aggravated such contamination.
C. Identification. The photographic line-up was mishandled in that only one of the persons in the 16 photographs had an obvious mole. In addition, K.C. looked at all the photographs instead of stopping when she identified the appellant.
D. Identification. K.C. and C.R. disagreed as to which car, the appellant's or Cadarette's, more closely resembled the one the abductor drove. They agreed that the abductor's car had a bench seat. The appellant's car did not have a bench seat. Neither complainant mentioned [the] distinctive white top of the appellant's car.
E. Timing. The inability of either complainant to explain or reconcile the timing within which the alleged events occurred.
F. Physical Evidence. The absolute absence of any independent evidence of any contact whatever between either complainant and the appellant or between either complainant and the car or either house.
G. Alibi. The appellant's alibi was supported by others and his conduct throughout suggested openness and candour.
104As was stated in Biniaris, supra, reaching the conclusion that the verdict is unreasonable does not imply an impeachment of the integrity of the jury. In this case, it also may be that there was some evidence upon which a jury could have convicted the appellant. However, a reviewing court is to examine the totality of the evidence through the lens of judicial experience when determining whether the verdict is reasonable. The bulk of judicial experience clearly indicates that no jury properly instructed and acting judicially could have reasonably convicted the appellant when the totality of the evidence and all of its frailties have been considered.
105The references to Biniaris set out earlier in these reasons proceed upon the basis that there were no errors in the charge. That is not the case here as I have noted. I am satisfied, however, that even if the jury had been fully and properly instructed, it could not have safely convicted on the evidence adduced.
106As to the shortcomings in the trial judge's charge to the jury, it is worth noting that the only objections were from the Crown. Defence counsel described the charge as "balanced" and asked the trial judge not to re-charge. In fairness, I read the charge as warning the jury of the problems with the evidence, a warning, as I have stated, that fell short of the mark. Having regard to the conflicts and weaknesses in the evidence, I conclude that the verdicts are so unsafe as to be unreasonable.
107I would therefore allow the appeal, set aside the convictions and in their place register acquittals. In these circumstances, there is no need to address the appeal as to sentence.
Appeal allowed.
SCHEDULE "A"
SUMMARY OF TIMING OF EVENTS
EVENTS TIME TAKEN SOURCE OF RUNNING TIME INFORMATION (Using Shortest Time Estimates)
Complainants K.C., C.R., 1:30 a.m. left home J.C., and together D.K. Walked away from 1 hour to 1 K.C. and C.R. 2:30 a.m. the house until hour 10 abducted minutes Abducted and 3 minutes Police 2:33 a.m. taken to farmhouse Stayed at 5 minutes K.C. 2:38 a.m. farmhouse Travel to white 12 minutes Police 2:50 a.m. house Assaulted at white 1/2 hour to K.C. 3:10 a.m. house 1 hour 20 minutes C.R. to 30 minutes Travel to farmhouse 12 minutes Police 3:22 a.m. Waited at farmhouse 10 minutes K.C. 3:32 a.m. Walk to D.B.'s home 27 minutes Police 3:59 a.m.
Actual Arrival at D.B.'s home K.C., C.R. and D.B. 3:00 a.m. Mama's Family on T.V. T.V. Guide 4:00 a.m.
