DATE: 20040929

DOCKET: C35268

COURT OF APPEAL FOR ONTARIO

MACPHERSON and SIMMONS JJ.A. and JURIANSZ J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

Christopher Hicks for the appellant

Respondent

• and -

CHARLES ROY

Philip Perlmutter for the respondent

Appellant

Heard: April 8, 2004

On appeal from the conviction entered by Justice David Crane of the Superior Court sitting with the jury on March 2, 1998.

SIMMONS J.A.:

[1] The appellant appeals from his conviction for sexual assault following a trial before Crane J. sitting with a jury.

I. Overview

[2] At approximately 10 p.m. on April 22, 1991, a man walking a dog assaulted a 14-year-old girl in a Welland park. Shortly after the incident, the complainant described the man who assaulted her to the police. She said that he was five feet six to five feet seven inches tall and in his late thirties or early forties; he had brownish/grey hair; and a fat build. The complainant described the assailant's dog as being white with black spots “like a Dalmatian”, but said that she did not mean it was a Dalmatian.

[3] On April 23, 1991, a police officer looking for a dog that matched the complaint’s description noticed a white husky with black markings tied up outside the appellant's apartment, across the road from the park. The officer took the complainant to see the dog and she identified it as resembling the assailant's dog. Two days after the assault, the complainant told the police that her assailant was about six feet one inch tall and that he had brown eyes. Later the same day, the complainant selected the appellant’s photograph from a photographic line-up.

[4] The appellant did not testify at trial. However, in contrast to the complainant's initial description of the assailant, the arresting officer described the appellant as being in his twenties, six feet one inch tall and as weighing 209 pounds. Further, a photograph of the appellant taken four days after the assault did not reveal any grey hair. Finally, while the complainant testified that she did not notice anything unusual about her assailant’s gait, evidence from defence witnesses at trial indicated that the appellant limped.

[5] During the course of the trial, the trial judge admitted evidence that, almost two years after the assault, the appellant told his hairdresser that he did not want his hair streaked because identification was an issue in his life and he wanted to beat the system. Further, during his jury charge, the trial judge told the jury that, in his view, the evidence that the complainant selected the photograph of a man who lived across the road from the park and who owned a black-and-white dog, was a strong indication of a correct identification. He also informed the jury that, in his view, the other photographs in the photographic line-up were “remarkably similar” to the appellant.

[6] The appellant raises seven grounds of appeal. In addition, he submits that if his grounds of appeal are insufficient individually to warrant a remedy, their cumulative effect requires that his conviction be quashed. Finally, the appellant asserts that, because this was his third trial for the same offence, the charge should be stayed if a new trial is ordered.

[7] The appellant's seven grounds of appeal are as follows:

i) the verdict was unreasonable;

ii) the trial judge erred in expressing his opinion concerning the strength of the identification evidence;

iii) the trial judge failed to warn the jury adequately about the frailties of eyewitness identification evidence;

iv) the trial judge erred in his review of the evidence;

v) the trial judge erred by failing to give a limiting instruction concerning the evidence that the appellant's photograph was on file with the police;

vi) the trial judge erred in admitting post-offence conduct evidence from the appellant's hairdresser; and

vii) the appellant's trial was unfair because the jury had an opportunity to observe him in shackles.

[8] For the reasons that follow, I would dismiss the appeal.

II. Background

[9] I will begin with a brief summary of the relevant facts and will supplement these facts where necessary when dealing with individual grounds of appeal.

i) the complainant’s evidence concerning the assault

[10] At around 10 p.m. on April 22, 1991, the fourteen-year-old complainant was walking home alone from a friend's house. As she entered the parking lot of a local park, the complainant noticed a man walking a dog. Initially she thought the man was a friend's father. However, once she got within five or six feet of the man, she saw the man's face and determined that he was not the man she thought he was. She accordingly looked away and did not look back.

[11] The complainant walked up a small hill as she continued through the park. When she got to the top of the hill, the dog she had seen with the man jumped up on her and put his paws on her chest. Although she looked toward the dog's owner for assistance, the complainant concentrated primarily on the dog. After telling her that the dog would not hurt her, the man pulled the dog off of the complainant and she continued walking through the park.

[12] A few moments later, the complainant heard something behind her. She saw the man in the area of an unlit baseball diamond. The complainant began walking faster. She heard someone running behind her. When the complainant turned around, the man was right there. He grabbed her and threw her into a mud puddle. The next thing the complainant knew, the man was on top of her, with his face half an inch away from her nose.

[13] In examination-in-chief, the complainant estimated that the man was on top of her for five minutes. In cross-examination, she acknowledged that the timeframe could have been less. The complainant testified that while the man was on top of her, he rubbed her abdomen over her clothing with one hand and put his other hand on her lower leg. The complainant screamed and told her assailant that her father was a police officer. Shortly thereafter, the man ran away.

[14] After the assailant ran away, the complainant went to a nearby house for help. The residents called the police and Constable Zarafonitis arrived about six or seven minutes later, at 10:34 p.m.

[15] In her testimony, the complainant described her assailant as having shoulder length, dark brown, wavy hair; a moustache; and a full-grown, unkempt beard. She said that he was a very big man, anywhere from five feet seven inches to six feet one inch tall, in his late thirties or early forties, sort of muscular, and fat. The complainant said that she would describe the assailant as being really fat, but explained that was because she was small at the time and he seemed so heavy on her and huge. She said that the assailant's hair and beard were starting to turn grey. In addition to her previous descriptions, the complainant testified that the assailant's nose looked pushed in and that he had thin lips.

[16] The complainant said the assailant's dog was a big dog, white with black spots. In addition, she indicated that she did not know very much about dogs and that she did not know what kind of dog it was.

[17] The complainant testified that, at the time of the assault, she was about four feet eight inches tall and weighed about eighty to eighty-five pounds.

[18] In cross-examination, the complainant described her friend's father, whom she initially thought was the man in the park. She said he was in his forties and overweight; he had dark shoulder length hair and a beard, both of which were turning grey. She thought he was of average height. Her friend's father also had a dog that looked the same as the dog in the park. The complainant agreed that she was no more than five or six feet away from the man in the park before she realized he was not her friend's father.

[19] The complainant agreed that on the night of the assault she told the investigating officer that the assailant's dog was white with black spots, “like a Dalmatian”. However she did not agree that when she said that, she meant a peppering of smaller spots on a white background or that the dog looked like a Dalmatian. She said that the officer kept asking her about it, and she told him that she just meant that the dog had spots.

[20] The complainant confirmed that she observed the assailant on four occasions on the evening in question and that she did not notice anything unusual about his gait. On the first occasion, she observed him for “a few minutes” as he approached her in the parking lot. She agreed that she would have noticed at that point if her assailant had a limp. Following the assault, she observed her assailant running for about 250 yards as he fled the scene, but did not notice anything unusual about his gait.

ii) Constable Zarafonitis’s evidence

[21] Constable Zarafonitis testified that it was so dark when he arrived at the scene on the evening of April 22, 1991, that he had to use his spotlight to see the house numbers. He said the complainant described her assailant as being approximately five feet six inches to five feet seven inches tall, in his late thirties or early forties, and as having a fat build. The assailant had a moustache and a beard; his hair was brownish/grey, and was bushy, wavy and unkempt. The complainant told Constable Zarafonitis that the assailant had a white dog with black spots. He said he wrote the word “Dalmatian” in brackets in his notes. When asked if that was a word the complainant had used, he said that he could not recall. However, since he wrote the word “Dalmatian” in brackets, he thought that was his own interpretation of what the complainant had said.

iii) Detective Sergeant Fisher’s evidence

a) the identification of the dog

[22] On the day following the assault, Detective Sergeant Fisher was assigned to the investigation. He walked the neighbourhood in the vicinity of the park looking for a dog that matched the description he was given. He found a white husky with black patches tied up near an apartment occupied by the appellant and another man, and took the complainant to see the dog, either to identify it or eliminate it. When the complainant saw the husky, she said, “[t] hat's the dog. It looks like him.” Detective Sergeant Fisher said he was told by an unnamed third party that the appellant owned the dog.

[23] In cross-examination, Detective Sergeant Fisher said he walked the neighbourhood for about fifteen minutes before noticing the dog. He agreed that taking a complainant to see a single human suspect would not be an appropriate identification procedure. In addition, he agreed that, after the complainant identified the appellant’s photograph, he did not conduct additional investigations, such as checking the complainant's clothing for dog hair or obtaining a search warrant to check the appellant's apartment for mud or clothing similar to that worn by the assailant.

b) the complainant’s second description of her assailant

[24] On April 24, 1991, the complainant gave a second description of her assailant to Detective Sergeant Fisher. The description was consistent with her earlier description, save that she now said that her assailant was six feet one inch tall. In addition, the complainant described the assailant as having brown eyes.

c) the photographic line-up

[25] Later on April 24, 1991, the complainant examined a photographic line-up prepared by Detective Sergeant Fisher consisting of a photograph of the appellant that the police had on file, together with the photographs of eleven other men who resembled the appellant. Detective Sergeant Fisher confirmed that the complainant selected the appellant’s photograph as being “the closest to the man who assaulted me”. In addition, she said, “I'm positive it’s his face but his hair and beard is different.” Detective Sergeant Fisher asked the complainant what the differences were. She responded that when she “saw the man his hair was greyer and fuller.”

[26] In cross-examination, Detective Sergeant Fisher agreed that eight of the men in the line-up were looking to the left, three of the men were looking partially to the left, and one man (the appellant) was looking straight at the camera. He also agreed that if he walked into a room full of people and one of them looked at him and made eye contact, that would be the person who would he engage his attention.

d) the appellant’s appearance at the time of his arrest

[27] In his evidence at trial, Detective Sergeant Fisher identified a photograph of the appellant taken on April 26, 1991. The photograph does not reveal any grey hair. In addition, Detective Sergeant Fisher testified that, at the time of his arrest, the appellant was in his twenties, weighed 209 pounds and was six feet one inch tall and that he had dark hair with ‘very indiscernible’ flecks of gray. Detective Sergeant Fisher agreed that he would not consider a person with the appellant’s height and weight profile to be fat. Finally, Detective Sergeant Fisher testified that he did not notice the appellant limping at the time of his arrest.

iv) the appellant’s hairdresser’s evidence

[28] The appellant's hairdresser testified that the appellant became a regular client around 1987 and that she streaked his hair twice a year for approximately five years until 1990 or 1991. She said that the streaking would grow out in approximately three months and that it would appear whitish blond while it was growing out. She made no reference to the appellant having grey hair.

[29] The appellant's hairdresser testified that in February 1993 the appellant told her that he did not want his hair streaked because identification was an issue in his situation. She said that he felt that he would rather ‘beat the system’ and not get his hair streaked. The hairdresser confirmed that even though she had provided earlier statements to the authorities about her contact with the appellant, it was not until 1997 that she informed the Crown of the appellant’s comment about “beat[ing] the system”.

v) the defence evidence

[30] Two witnesses provided evidence for the defence. The appellant's employer during the summers of 1989 through 1991 said that the appellant limped and that he had trouble carrying a wheelbarrow. The witness testified that the appellant sometimes appeared to be dragging his right leg behind him, but that when he was fresh in the morning it did not show much.

[31] The appellant's mother was unable to testify for medical reasons. In accordance with s. 715(1) of the Criminal Code, her testimony at an earlier trial was read in as evidence at this trial. The appellant's mother indicated that the appellant was in an accident in 1982 or 1983 and that he had a noticeable limp as a result. She said the limp was less noticeable when he wore a brace but more noticeable when he tried to run. Further, she said that she saw the appellant every one to two weeks in 1991 and that she did not observe any streaking or grey in his hair. The appellant's mother confirmed that the appellant had owned a white husky with black markings.

III. Analysis

i. Was the verdict unreasonable?

[32] The appellant relies on four submissions in support of his claim that the verdict was unreasonable: first, the complainant’s description of her assailant did not match the appellant in material respects and therefore falls short of constituting an identification; second, the photographic line-up was conducted improperly; third, the complainant's identification of the dog was essentially worthless; and fourth, there was no confirming evidence capable of supporting the complainant’s identification.

[33] I agree that the complainant's description of her assailant differed from the appellant's characteristics in significant respects and that her description changed over time. I also agree that taking the complainant to observe a dog that lived across the road from the park was not an appropriate identification procedure. However, I do not agree that the photographic line-up was conducted improperly, that there was no confirming evidence capable of supporting the complainant's identification of the appellant, or that the deficiencies in the complainant's description of her assailant and her identification of the dog renders the verdict unreasonable.

[34] Dealing first with the photographic line-up, the appellant contends that the line-up was faulty for two reasons: first, because, in his photograph, the appellant was looking straight at the camera, whereas all of the other men were facing at least partly to the left; and second, because the eleven other photographs matched the appearance of the appellant rather than the complainant’s description of the assailant.

[35] Examining the photographic line-up myself, I do not agree that the direction in which the appellant is facing is a matter that singles him out for selection. Although seven of the men have their heads turned noticeably to the left, of those seven, one man’s head is also tilted down, setting him apart from all of the other men. Of the five remaining men, the appellant is facing forward with his eyes looking forward, two men are facing almost forward with their eyes angled slightly left, and two men have their heads turned somewhat left and their eyes angled left. Of the two men facing almost forward, one man has his eyes partially closed.

[36] I consider the distinction between the appellant and the two men who are facing almost forward to be barely discernible. Moreover, I find that there are equally discernible differences in relation to the man facing left with his head tilted down and in relation to the man facing almost forward with his eyes partially closed. In my view, the distinction identified by the appellant is simply not a matter that would have singled him out for selection. On the other hand, in my view, assembling a photographic line-up in which all of the men did not possess characteristics similar to the appellant would either have singled him out completely, or inappropriately narrowed the available comparisons.

[37] As already noted, I agree that there were significant discrepancies between the complainant’s description of her assailant and the appellant’s characteristics, and that her description changed over time. However, the strength of the Crown’s case does not arise from the complainant’s eyewitness identification evidence. Rather, it arises from the cumulative effect of the whole of the evidence, including the post-offence conduct evidence, and from the complainant identifying the one person in the photo line up who lived across the road from the park and who owned a black and white dog that resembled the dog in the park.

[38] Viewed as a whole, the evidence that the complainant selected the appellant’s photograph from a photographic line-up, that the assault occurred while the assailant was walking a dog, that the appellant lived across the road from the park where the complainant was assaulted, and that the appellant owned a dog resembling the complainant's description of the assailant’s dog, creates a compelling inference that the appellant is the man who assaulted the complainant.

[39] Although the complainant’s description of her assailant and the defence evidence that the appellant limps are factors capable of detracting from the Crown’s case, there was a basis for discounting both areas of the evidence. The complainant was only fourteen years old, four feet eight inches tall and, at most, eighty-five pounds at the time of the assault. In the circumstances, the fact that she provided a description of the age, height and girth of her assailant that did not match the appellant is a matter for concern, but it is not a fatal flaw. Estimating age, height and weight are difficult at the best of times. It would hardly be extraordinary for a relatively young and relatively slight teenager to overestimate the age and weight of an adult, nor for her to consider that five feet six inches is tall.

[40] The complainant’s comment, made after selecting the appellant’s photograph from the photographic line-up, that the assailant's beard was “greyer and fuller” than the appellant's beard as portrayed in the photographic line-up is also a matter of concern. However, the appellant's arrest photograph demonstrates that his facial hair at the time of the assault was probably longer than it appeared in the photographic line-up. Further, Detective Sergeant Fisher testified that there were minute flecks of grey in the appellant's beard at the time of his arrest.

[41] Finally, the defence evidence concerning the extent of the appellant’s limp lacked clarity and was countered by Detective Sergeant Fisher’s evidence that he did not notice the appellant limping.

[42] As already noted, I consider that the evidence that the appellant lived across the road from the park where the complainant was assaulted and that he owned a black and white dog to be circumstantial evidence capable of supporting the complainant's identification of the appellant. Moreover, for reasons that I will explain below, in my view, the post-offence conduct evidence was properly admitted. That evidence, too, was capable of supporting the complainant's identification of the appellant. In all of the circumstances, I conclude that the verdict was not unreasonable, and I would not give effect to this ground of appeal.

ii. Did the trial judge err in expressing his opinion concerning the strength of the identification evidence?

[43] The appellant concedes that trial judges are entitled to express their opinions on the strength of the evidence presented at trial “as long as the opinion is carefully phrased.” However, he contends that, in this case, the trial judge vastly overstated the strength of the line-up identification evidence in two segments of his charge and that in, in so doing, the trial judge took the issue of the strength of the eyewitness identification evidence away from the jury.

[44] The first segment of the trial judge's charge on which the appellant relies is as follows:

There is an aspect of the evidence that strikes me as strong evidence of correct identification, it may not to you. It is, that of the 12 photos, [the complainant] identified number five. In number five he was living beside Chippawa Park at the time and owned a black and white dog. The evidence is she did not know this before her identification [emphasis added].

[45] The second segment of the trial judge's charge on which the appellant relies appears later in the charge, where the trial judge listed questions the jurors should ask themselves in order to evaluate the strength of the line-up identification:

Did [the appellant] look conspicuously different from the other people in the line-up?

If so, this goes against the fairness of the procedure. If the other photos are similar to him, this goes positively towards the fairness of the procedure. In my view I observed that the trial photos are remarkably similar. However, that is for you to determine [emphasis added].

[46] I reject the appellant's submissions. In my view, the trial judge' s comments remained within the permissible boundaries articulated by this court in R. v. Wristen (1999), 1999 3824 (ON CA), 141 C.C.C. (3d) 1 (Ont. C.A.) in which this court stated:

It is well established that the trial judge is entitled to express his own view of the facts or of the credibility of witnesses and to express his opinion in strong terms provided that he does not use such language as leads the jury to think that they must find the facts in the way he indicates, and provided the charge does not deprive the accused of a fair presentation of his case to the jury. Even though the trial judge has properly instructed the jury that they are not bound by his views on the evidence, an appellate court may, none the less, intervene if the opinion expressed by the judge is far stronger than the facts warrant, or where the judge has expressed his opinion so strongly that there is a likelihood of the jury being overawed by them.

[47] Dealing with the first segment of the charge on which the appellant relies, I note that the trial judge was not commenting on the strength of the eyewitness identification evidence; rather, he was commenting on the strength of the circumstantial evidence that supported the eyewitness identification evidence.

[48] As I have already explained, in this case, the strength of the Crown's position arose, not from the identification evidence itself, but from the series of facts the trial judge identified that were unlikely to exist as a matter of coincidence. In my view, the circumstantial evidence that the trial judge identified was capable of supporting an inference that the appellant was the assailant, and the trial judge did not overstep the permissible boundaries by expressing his opinion that it was strong evidence of correct identification. Moreover, the trial judge made it clear that it was entirely possible that the jury could have a different opinion. In addition, he reminded the jury repeatedly throughout his jury charge that the jury was not bound by his opinions.

[49] As for the second segment of the charge on which the appellant relies, I have explained already that, in my view, there was nothing unfair or improper about the photographic line-up that was prepared. The trial judge was entitled to express his opinion concerning the similarity of photographs provided he made it clear, as he did, that the decision belonged to the jury.

[50] I would not give effect to this ground of appeal.

iii. Did the trial judge fail to warn the jury adequately about the frailties of eyewitness identification evidence?

[51] The appellant submits that, particularly because the Crown's case was founded on weak identification evidence, a proportionally strong caution concerning the dangers of eyewitness identification was mandatory. The appellant contends that rather than fulfilling that duty, the trial judge provided a relatively weak caution, which he subsequently undermined by advising the jury that in his opinion the eyewitness identification evidence was strong. Further, the appellant submits that the trial judge's charge to the jury on eyewitness identification evidence was deficient in five specific respects:

1. the trial judge did not relate his warning against relying on eyewitness identification evidence to any of the weaknesses in the complainant's identification; instead, he instructed the jury at a different point in his charge that they could find that there were weaknesses in the complainant's identification;

2. the trial judge failed to emphasize the complainant's comment, made after she selected the appellant's picture from the photographic line-up, that the assailant's hair was greyer than the appellant's hair as a weakness in her identification; moreover, the trial judge did not mention the complainant's comment that the assailant's hair was fuller than the appellant's hair;

3. the trial judge failed to refer to the complainant’s assessment of the assailant’s build, age and hair colour when pointing out discrepancies in the complainant’s description of her assailant;

4. the trial judge failed to mention that the complainant did not notice anything unusual about the assailant's gait, whereas the appellant had a pronounced limp; and

5. the trial judge failed to “remind the jury that mistaken identification has been responsible for miscarriages of justice by reason of wrongful conviction of persons who have been mistakenly identified by one or more honest witnesses”: see R. v. Wristen at 18.

[52] I reject the appellant's submissions for three reasons.

[53] First, although I agree the trial judge could have been more succinct, and that he could have improved his charge by pinpointing the evidence that related to all of the specific issues at the time he discussed those issues, in my view, the charge was adequate to bring home to the jury the general dangers associated with eyewitness identification evidence, the weaknesses in the eyewitness identification evidence in this case, and the real question that the jury was required to decide, which was whether the evidence as a whole was sufficient to persuade them of the appellant's guilt.

[54] Significantly, the trial judge began the segment of his charge dealing with eyewitness identification evidence by giving the jury what the trial judge described as a “special warning”:

Every once in a while in our courts a person is convicted of an offence even though he or she is innocent. When this does happen, it is often because of a mistake made by one or more eyewitnesses. It is easy to see how this can happen. An eyewitness can be a very convincing witness when that witness honestly believes that the accused person is the one he or she saw committing the offence. In this case your decision will depend on whether you find that the eyewitness correctly identified [the appellant] as the person she saw.

[55] Two paragraphs later, the trial judge instructed the jury as follows:

You must consider and weigh against the evidence of [the complainant] your understanding that observation and memory are often unreliable when it comes to the identification of people. In other words, this is an area where people often make honest mistakes.

[56] The trial judge outlined thirteen factors that the jury should consider in assessing the eyewitness identification evidence. These factors included: whether the eyewitness was able to give a good description of the person she saw; whether the eyewitness made any significant changes to her description; and whether there was other evidence that appeared to support the eyewitness identification. The trial judge then proceeded with a complete review of the evidence. Following his review of the evidence, the trial judge said the following:

You will recall that [the complainant] gave evidence-in-chief dealing with the identity of [the appellant] as the person who sexually assaulted her. You may find there were weaknesses in the evidence of the Crown as it relates to the issue of identity because [the complainant's] description of her assailant did not match [the appellant] as to some particulars. The evidence has been reviewed by each counsel and now by myself. And secondly that [the complainant] changed her description as to the estimation of height two days after the incident to approximately six foot one, which is the height of [the appellant] on the arrest record. You should bear in mind that the Crown's case does not explain this ...

It is for you to determine if there were material discrepancies showing inconsistency in the identification, and, if so, what weight to give to that evidence in assessing the reliability of [the complainant's] evidence.

[57] Following the above noted paragraph, the trial judge made the comment (set out at paragraph 44 above) that, in his view, the circumstantial evidence provided strong evidence of a correct identification, and he turned to the question of the line-up. The trial judge completed the segment of his charge dealing with eyewitness identification evidence with the following comments:

In summary,.. the recognition of another person is more complicated than we might think it is. Usually we do not think about how we recognize people we have seen before. We take it for granted that we can tell the difference between one person and another. However, in a criminal case we cannot afford to be casual about the identification of one person by another person.

[58] Finally, when summarizing the theory of the defence, the trial judge referred to the following matters as being among the factors relied on by the defence:

c) that this [was] an identification case;

d) that the initial description as to height, body build, age and hair colour [did] not accord with [the appellant];

g) that on the [defence] evidence, [the appellant] walks and runs with a limp;

i) that the photo taken on arrest on 24 April, 1991 is not the same as photo number five nor does it show streaked hair.

[59] In my view, the cautionary language used by the trial judge, and his review of the factors relevant to assessing eyewitness identification evidence, were sufficient to draw the jury's attention to the general dangers associated with eyewitness identification evidence. Although it would have been preferable for the trial judge to have specifically reviewed the particulars of the complainant's description that did not match the appellant's characteristics in the portion of his charge set out at paragraph 56, he referred to those particulars in his general review of the evidence and when discussing the photographic line-up and repeated most of them when reviewing the theory of the defence. In my view, the trial judge's instructions concerning the eyewitness identification evidence were adequate.

[60] Second, three of the appellant's specific criticisms regarding the trial judge’s charge on eyewitness identification evidence are not accurate. As already noted, contrary to the appellant's third and fifth specific criticisms, the trial judge referred to the fact that the complainant's initial description as to the height, body build, age and hair colour did not conform with the appellant in his review of the theory of the defence. Further, at the outset of his comments concerning eyewitness identification evidence he specifically cautioned the jury about the danger of wrongful convictions. In addition, contrary to the appellant's fourth specific criticism, when reviewing the theory of the defence, the trial judge referred to the evidence that the appellant walks and runs with a limp, and to the fact that the complainant “did not and does not say she saw her assailant limping”.

[61] Third, as I have already explained, in my view, the appellant's fundamental proposition that the Crown's case was founded on weak and unsupported eyewitness identification evidence is not correct. While I agree that the eyewitness identification evidence was weak standing alone, and that it was necessary that the trial judge provide the jury with a special caution in relation to that evidence, I reject the appellant's submission that the eyewitness identification evidence was unsupported and that the totality of the evidence was not sufficient to support a conviction.

[62] I would not give effect to this ground of appeal.

iv) Did the trial judge err in his review of the evidence?

[63] The appellant contends that the trial judge erred in two respects when reviewing the evidence: i) by reading all of his trial notes to the jury rather than limiting his review to evidence that was relevant to the issue of identity; and ii) by reviewing some of the evidence inaccurately.

[64] I disagree. In addition to reading his trial notes to the jury (which were taken in point form), the trial judge referred to specific portions of the evidence when dealing with some of the legal issues and when setting out the parties' theories. Further, the trial judge's review of his trial notes constituted approximately thirty-two pages of a ninety-page jury charge, which lasted just over two hours. Although it may have been preferable for the trial judge to have simply pinpointed the particular evidence that related to individual issues in his discussion, when read as a whole, the charge adequately related the evidence to the relevant issues and was not unduly long.

[65] Further, on my reading of the evidence, the appellant's complaints about inaccuracies are matters of emphasis and interpretation.

[66] I would not give effect to this ground of appeal.

v) Did the trial judge err by failing to give a limiting instruction concerning the appellant’s photograph being on file with the police?

[67] In the course of his evidence, Detective Sergeant Fisher referred to the fact that the appellant's photograph was on file with the police at the time the photo line-up was prepared. Following the introduction of this evidence, appellant's counsel at trial (not Mr. Hicks) applied for a mistrial. The trial judge refused the request, holding that the fact that the police have a photograph of an individual does not lead to an automatic inference that the individual has a criminal record. On appeal, the appellant contends that the trial judge erred by repeating Detective Sergeant Fisher's statement in his summary of the evidence, and by failing to provide the jury with a limiting instruction concerning the inferences to be drawn from this evidence.

[68] I disagree. In my view, it is speculative to suggest there was any real risk that the jury would have jumped to a conclusion that the appellant has a criminal record based on the impugned evidence. While it would have been open to the trial judge to provide a limiting instruction if requested to do so, there is no indication in the record that such a request was made. Further, depending on the form of instruction, it may have suggested an inference to the jury that they would not otherwise have considered.

[69] In the circumstances, I would not give effect to this ground of appeal

vi) Did the trial judge err in admitting post-offence conduct evidence from the appellant’s hairdresser?

[70] The impugned portion of the hairdresser's evidence relates to a conversation the hairdresser said she had with the appellant a couple of days prior to February 7, 1993, which was the date on which the appellant was charged with several serious offences committed on February 5, 1993 (“the 1993 offences”)[1]:

Q. Did you have some conversation with him about what he was going to be doing or what you would do for his hair?

A. I just said, “What you going to get done today?” He said, “A perm.” I asked him, “You're not getting any streaks?” And he said, “No. ”

Q. Did that strike you as unusual for him not to get streaks?

A. In a way it did, yes.

Q. And did he offer you any explanation as to why he wasn’t having any streaks done?

A. No, but everything that was going on with him in his life he didn’t want to get it streaked because he felt that identification was a big issue in his situation and he felt that he’d rather beat the system and not get his hair streaked and just permed.

[71] Defence counsel at trial objected to the admissibility of this evidence on the basis that it had no probative value as evidence of consciousness of guilt. He relied on the fact that, on the date of his arrest, the appellant had no noticeable streaks in his hair and on the further fact that there was no evidence at trial of the appellant having attempted to change his appearance. Subsequently, at the conclusion of the hairdresser's evidence-in-chief, defence counsel applied for a mistrial. He indicated that he had understood the hairdresser's comment in a prior statement, “[i] n other words he was going to beat the system”, as referring to her interpretation of what the appellant had said rather than as a statement made by the appellant, and claimed that the hairdresser’s trial evidence went farther than he anticipated.

[72] On appeal, the appellant relies on his trial counsel’s position concerning the admissibility of this evidence. In addition, he submits that the impugned evidence was inadmissible because it created an unfair impression that his comments related to this charge; whereas, logically and chronologically, they related to the 1993 offences, and had no probative value in relation to the charge before the court. The appellant contends that, since he could not counter the effect of his hairdresser's evidence without introducing highly prejudicial evidence concerning the 1993 offences, his hairdresser's evidence could not be introduced without misleading the jury, and it should not have been admitted at all.

[73] Finally, the appellant contends that the trial judge erred in failing to declare a mistrial at the conclusion of the hairdresser's evidence-in-chief.

[74] I reject the appellant's submissions. Although the appellant submits that his comments related to the 1993 offences and that identification was an issue at his trial for those offences, he acknowledges that he was wearing a balaclava at the time the 1993 offences were committed. It is therefore difficult to understand how his hair colouring might have raised an identification issue in relation to 1993 offences, whereas it was clearly an issue in relation to this offence.

[75] In any event, to the extent that there was any issue concerning the offences to which the appellant's comments to his hairdresser related, that was an issue for the jury to determine: R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.). Contrary to the appellant’s submissions, he was not precluded from calling evidence concerning the offences to which his comments related; he chose not to call evidence. Had the appellant chosen to testify, many courses were available to neutralize the potential prejudice arising from his testimony concerning the 1993 offences. They included editing his evidence, restricting the Crown's right of cross-examination concerning the nature of the 1993 offences, and a limiting instruction by the trial judge. In my view, the hairdresser’s evidence had potential probative value in relation to the charge before the court and the appellant's decision not to testify was a tactical decision that does not affect the admissibility of the impugned evidence.

[76] As for the appellant's submission that the trial judge should have declared a mistrial at the conclusion of the hairdresser's evidence-in-chief, I find no merit in that submission. Although defence counsel at trial indicated that he had not anticipated a portion of the hairdresser’s evidence, there is no indication that he made a request for additional preparation time that was refused, nor that his trial tactics would have been different had he appreciated the true nature of the hairdresser's proposed testimony. The appellant did not file fresh evidence on appeal demonstrating prejudice. This is not a case of non-disclosure, but rather a situation where a witness's prior statement to the authorities may have been ambiguous. Without evidence of a real possibility that the appellant may have been prejudiced in the conduct of his defence, I would not give effect to this ground of appeal.

vii) Was the trial unfair because the jury had an opportunity to observe the appellant in shackles?

[77] On the morning that counsel were to address the jury, defence counsel at trial applied for a mistrial because at least one member of the jury apparently had the opportunity to view the appellant in shackles. The trial judge rejected defence counsel's request, indicating that the opportunity of observing the appellant was minimal, that it happened as the result of inadvertence, and that he intended “to charge the jury strongly on the presumption of innocence”.

[78] On appeal, the appellant submits that he suffered prejudice as a result of the jury having an opportunity to see him in restraints. He relies on this court's comment in R. v. McNeill, (1996), 1996 812 (ON CA), 108 C.C.C. (3d) 364 (quoting R. v. Jones and Francis (1996), 1996 8006 (ON SC), 107 C.C.C. (3d) 517 (Ont. Ct. (Gen. Div.)) that a balance should be struck between “the duty of the judge to ensure ... safety … and ... to prevent escape on the one hand ... and the need to maintain the dignity of the prisoner in the context of the presumption of innocence on the other”. He also contends that the prejudice could have been alleviated by strong instructions from the trial judge, but submits that in providing the jury with nothing more than the standard instructions concerning the presumption of innocence, the trial judge failed to provide a sufficient instruction and failed to follow his own ruling in that respect.

[79] I reject the appellant's submissions on this point for two reasons. First, on the record before this court, it is not clear when the incident occurred or that any member of the jury actually saw the appellant in shackles. The transcript indicates that submissions were made by defence counsel concerning “[the appellant] entering the courtroom in view of juror” and that, during the course of his submissions, “counsel examine[d] [a] door”. Apart from the foregoing references the only indication of what actually took place is the trial judge's comment, “there was an opportunity to see at least part of his body for a moment”. There is no indication of what restraints the appellant was actually wearing and it is not clear what part of the appellant's body was visible or whether more than one juror had the opportunity of observing him.

[80] Second, in my view, the standard instructions concerning the presumption of innocence were adequate to alleviate any potential for prejudice that might have arisen from one or more jurors obtaining a fleeting glimpse of the appellant in shackles. While I agree wholeheartedly with this court's comment in the McNeill, the issue in that case was the scope of the trial judge’s duty to deal with the issue of restraints. In my view, it is fanciful to suggest that the jury would disregard clear instructions concerning the presumption of innocence based on nothing more than a momentary opportunity of viewing an accused person in shackles.

IV. Disposition

[81] Based on the foregoing reasons, I would dismiss the appeal.

Released: September 29, 2004 “RGJ”

“Janet Simmons J.A.”

“I agree MacPherson J.A.”

“I agree R. G. Juriansz J.A.”

[1] Trial counsel agreed that the hairdresser identified the timing of the conversation by reference to the date on which the appellant was charged with the 1993 offences. Before the jury, the hairdresser testified simply that the conversation took place in early February 1993.